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Diplomatic Law - Commentary on the Vienna Convention on Diplomatic Relations, 4th Edition by Denza, Eileen (14th January 2016)

Freedom of Movement

From: Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations (4th Edition)

Eileen Denza

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 10 December 2019

Subject(s):
Diplomatic immunity — Diplomatic missions — Diplomatic relations — Right to liberty of movement

(p. 173) Freedom of Movement

Article 26

Subject to its laws and regulations concerning zones entry into which is prohibited or regulated for reasons of national security, the receiving State shall ensure to all members of the mission freedom of movement and travel in its territory.

Freedom to travel throughout the territory of the receiving State is an essential facility to enable diplomatic agents to exercise two of their most important functions—protection of the nationals of the sending State and reporting to their government on conditions and developments in the receiving State. It has not, however, been a privilege readily accorded by closed societies. In the eleventh century, when systematic diplomacy was carried out only by Byzantium, envoys received there were met at the frontier, escorted to the capital by a route chosen to impress them with Byzantine military might and on arrival immured in a special fortress where their entertainment was confined to watching endless military reviews.1 In the sixteenth century, the State of Muscovy followed this style of receiving diplomats—envoys were lodged under armed guard outside Moscow, their food and other necessities were supplied in order to prevent contact with the outside world, and they were supervised when travelling through the Tsar’s dominions.2 China from the period of the Manchu dynasty required all aliens to obtain permits in order to travel within the country, and no exceptions were made for diplomats.3

Among those European States where the laws and practices of modern diplomacy were developed, however, freedom of movement for diplomats was generally accepted. This may have resulted from the fact that few restrictions of any sort were placed on the movement of aliens until the twentieth century and that States did not in general have sufficient police resources to supervise any alternative. The question of any entitlement of an envoy under customary international law to freedom of movement was not really put to the test.

After the Second World War the Soviet Union limited travel by members of diplomatic missions in Moscow to fifty kilometres from the capital. Permission had to be sought for specified journeys beyond these limits. This was usually granted, perhaps after bureaucratic delays, and the traveller was then subjected to police surveillance. Other East European States, Hungary, Romania, and Bulgaria, followed suit. The United Kingdom, the United States, Canada, Belgium, France, The Netherlands, Greece, and Italy retaliated by imposing precisely reciprocal restrictions on members of the missions of the States concerned.4 Wilson describes numerous cases of detention of diplomats in Communist States during the early years of the Cold War on grounds of transgressing in forbidden (p. 174) zones, which he saw as ‘a modern version of the Byzantine school of diplomacy’. As he observed:

Communist officials do not consider it in their national interest to permit unlimited prowling through their territory by diplomats and staff members, perhaps justifiably so in many cases.5

The legality of these various restrictions and counter-restrictions was examined in 1953 by Perrenoud, who concluded that the original unilateral restrictions probably violated customary international law in that they prevented a diplomat from exercising all but one of his classical functions—he could not represent the sending State in the prohibited areas, he could not observe and report satisfactorily on large areas of the receiving State which might be of considerable economic and political importance, nor could he effectively extend protection to nationals of the sending State who might require assistance. The counter-restrictions on the other hand could be justified as reprisals if the original restrictions were in violation of international law, or as retorsion if they were not.

The proposal to include among the draft articles a special provision according freedom of movement to members of the mission originated with Sir Gerald Fitzmaurice. He maintained that thirty years previously such a provision would not have been needed, since traditionally members of missions had enjoyed freedom of movement within the receiving State, subject to minor exceptions for zones prohibited on strategic grounds. The proposal was strongly opposed by Mr Tunkin of the Soviet Union, who declared that most countries in accordance with their legal rights laid down regulations respecting movement of members of diplomatic missions in the light of security considerations, and stressed the importance of the Commission producing a text capable of acceptance and application by States. The great majority of the Commission accepted that specific provision was desirable, that exception should be made in regard to zones of military significance, but that the right to except such zones must not be abused in such a way as to nullify the purpose of the Article. The Article approved by the Commission was identical to the text of Article 26 of the Convention, and the Commentary included the important sentence: ‘The establishment of prohibited zones must not, on the other hand, be so extensive as to render freedom of movement and travel illusory.’6

Subsequently, some States doubted whether the International Law Commission’s formulation was adequate to make illegal the practices begun by East European countries. The Netherlands in its comments on the draft articles of 1957 and 19587 and the Philippines at the Vienna Conference8 sought unsuccessfully to incorporate into the text of the article the sentence quoted above from the Commission’s Commentary. The Soviet Union found the Commission’s text to be an acceptable compromise—suggesting by implication that it did not believe it would thereby be required to alter its existing practices. The Conference, like the Commission, was unwilling to stir up dissension by disturbing the text. The Philippines withdrew its amendment on the understanding, also expressed in clear terms by the UK representative, that any restrictions imposed on freedom of movement should not be so extensive as to render freedom of movement (p. 175) illusory. The UK representative also stressed that a State which abused the permitted exception in this article would also violate Article 25 by denying a basic facility for the fulfilment of the functions of the mission.9

Subsequent practice left some doubt as to the legal position. The Soviet Union and other Communist States ratified the Convention without any reservation to Article 26, but continued their practice of barring large areas of their territory to members of diplomatic missions who had not obtained special permission. Other States Parties did not protest that this conduct was in violation of the Convention, but maintained their own reciprocal restrictions on the basis that they were justified under Article 47. Article 47 does not permit reprisals—actual derogation from the terms of the Convention in response to a derogation by another Contracting Party—but does permit a receiving State to discriminate by applying a provision restrictively where there is a ‘restrictive application of that provision to its mission in the sending State’. Failure to protest thus suggests that extensive control of access by diplomats to areas of national territory outside the capital has been accepted not as a violation of Article 26 but as a ‘restrictive application’ for which the appropriate countermeasure is a reciprocal form of control of movement.10

The position in regard to Article 34 of the Vienna Convention on Consular Relations is very similar—apparent guarantees of unrestricted freedom of movement for consuls and the staff of consular posts have not been effectively implemented. In a Note from the US Department of State to the Soviet Embassy which is quoted by Lee,11 the US Government ‘wishes to emphasize again that its firm preference is to abolish all restrictions on free travel’, but the substance of the Note is concerned with the detail of reciprocal restrictions and not with any charge of violation of either the Diplomatic or the Consular Convention. The United States, according to a summary of travel restrictions set out by Lee,12 maintained in the late 1980s restrictions on the Embassies of Afghanistan, Bulgaria, China, Czechoslovakia, German Democratic Republic, Poland, and the Soviet Union. By 1997 only four missions were required to notify proposed travel arrangements and diplomats from the Cuban Interests Section and the Iraqi Interests Section of the respective protecting powers were required to await permission before travelling.13

The United Kingdom at this period also imposed reciprocal restrictions on diplomats of the Soviet Union, China, Vietnam, and Mongolia, but not on diplomats of all States which restricted the movement of UK representatives. Diplomats from restricted States were required under the travel notification scheme to give at least two working days’ notice of their intention to travel beyond a thirty-five mile radius of the centre of London. As a mirror of the restrictions imposed by the Soviet Union, the Soviet Ambassador, his family, personal interpreter, and personal driver were permitted to travel within the United Kingdom without prior notification.14 Article 26 is not among those set out in Schedule 1 to the Diplomatic Privileges Act 1964, on the basis that no derogation from (p. 176) UK law is required to confer freedom of movement throughout the territory with the exception of the few places to which access is generally forbidden under the Official Secrets Acts 1911–89.15 Restrictions were supervised by the police, but had no basis in domestic law, and the only sanction available for any unauthorized journey would be a declaration of persona non grata.

Germany applied similar restrictions on freedom of movement on a basis of reciprocity, and also took the position that notification of travel could be requested to ensure that adequate security protection was accorded to members of diplomatic missions. It was, however, essential that such a procedure should not be regarded as seeking permission for a journey.16 Belgium restricted only diplomats of the Soviet Union and Romania and later only those of the Soviet Union.17 The Netherlands limited freedom of movement of Soviet diplomats, but in a reply to a written question in Parliament, the Minister for Foreign Affairs said that: ‘There is in fact a marked imbalance, and were we to apply the principle of strict reciprocity, it would call for a considerable tightening of the present regulations for Soviet officials in The Netherlands.’ The reply, while making it clear that a reciprocal lifting would be welcome, did not suggest that the Soviet restrictions were contrary to Article 26 of the Convention.18

With the end of the Cold War and practical implementation of commitments first assumed in 1975 under the Helsinki Accords, these restrictions gradually withered away. In 1992, for example, the Governments of the Ukraine and the United Kingdom announced that they would:

accord to all members of the diplomatic missions of one side unrestricted freedom to travel throughout the territory of the other side: prior authorisation or notification of travel will not be required, and limitations and prohibitions on access will apply only to specific installations or military bases as well as to other areas closed to the public.

The Ukraine also recorded its willingness to accord on a reciprocal basis the same rights to members of the diplomatic missions of the other Member States of the European Union.19 Specific restrictions on diplomatic movement are no longer applied by the United Kingdom, although their withdrawal appears to have been gradual and unannounced.20

In other capitals, including Washington, it seems that any restrictions applied are extremely limited, and the missions affected are normally not publicly disclosed. Since as explained above they have no formal basis either in Article 26 of the Convention or in domestic laws, this reticence makes it easy both to apply and also to withdraw them. In 2014, however, the US State Department stated publicly that it had imposed a twenty-five-mile travel restriction on the movement of the Syrian Permanent Representative to the UN and the staff of the delegation.21

Syria itself in July 2011, early in the armed insurrection, banned foreign diplomats from travel outside Damascus without authorization, and required even authorized travel (p. 177) to be by air, so restricting opportunities for observing conditions outside the capital and speaking with Syrian people. Permission was refused for the UK Defence Attaché to travel in order to lead a Remembrance Day Service in Aleppo in November 2011 and although the UK Ambassador was in the event permitted to go in his place, the UK Government protested at the breach of the right to freedom of movement.22

Footnotes:

1  Hill (1905) vol I p 39; Nicolson (1954) p 25; Nys (1884) p 31; Young (1964) at p 144.

2  Grzybowski (1981) at p 47.

3  Lee (1991) p 429.

4  Perrenoud (1953); Cahier (1962) p 149; Lyons (1954) at p 331.

5  Wilson (1967) pp 64–72. See also comment in Goldsmith and Posner (2005) at p 58, that ‘the communist states suffered more than noncommunist states from enforcement of the traditional customary law of diplomatic immunity, because in a closed society ordinary observation is more damaging than in an open society’.

6  ILC Yearbook 1957 vol I pp 85–6; vol II p 137 (Art 20).

7  UN Docs A/CN 114 Add. 1 p 15 (comment on Art 20); A/4164 p 18 (comment on Art 24).

8  UN Docs A/Conf. 20/C1/L 141; A/Conf. 20/14 pp 150–2.

9  For discussion in the 6th Committee of the GA and at the Conference, see Bruns (2014) pp 25, 45, and 121.

10  See Lecaros (1984) p 151; Salmon (1994) para 469.

11  (1991) pp 430–1.

12  Ibid pp 432–4.

13  State Department information. For the current position on consular freedom of movement, see Lee and Quigley (2008) pp 394–7.

14  Hansard HC Debs vol 906 WA col 133.

15  1911 c 28, 1920 c 75, 1939 c 121, 1989 c 6.

16  Richtsteig (1994) pp 54–5.

17  Salmon (1994) para 462.

18  1980 NYIL 219.

19  Joint Press Release of 15 September 1992, printed in 1992 BYIL 685.

20  Information from Protocol Department, Foreign and Commonwealth Office.

21  State Department Note of 7 March 2014.

22  The Times, November 2011.