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Exemption from Customs Duties and Inspection, Negotiating history: national controls

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: 26 October 2020

Negotiating history: national controls

There was during the preparatory work on Article 36 very little dissent from the proposition that the obligation to admit and to grant exemption from customs duties on diplomatic goods should be made a binding rule, no longer dependent on reciprocity. But as a corollary of that decision, a great deal of importance was attached to ensuring that States Parties would preserve their former freedom to administer detailed national control of privileged imports. The International Law Commission’s 1957 draft articles contained no express words on this matter, though the Commentary stated that:

It is not inconsistent with the exemptions proposed, that the receiving State should, with possible abuses in mind, impose reasonable restrictions on the quantity of goods imported for the diplomatic agent’s use, or limit the periods during which articles for his establishment must be imported if they are to be exempted from duties.4

In its observations on the draft article Belgium submitted a redraft qualifying the duty to admit free of customs duty by the words ‘in accordance with such regulations as it shall prescribe’. They cited as examples of common regulations ‘the form of applications for exemption, the services assigned to deal with them, the import routes etc., and where applicable, the health formalities to be complied with, the conduct of plant pathology inspections and the like’. The Commission adopted a similar wording in their 1958 draft. They stressed that the regulations in question must be of general application and could not be adopted ad hoc to meet a particular case.5

The Vienna Conference devoted much attention to the wording of the reference to national laws and regulations. On the one hand there was concern that failure to specify (p. 312) the kind of national regulations to be permitted would make it possible for diplomatic customs privileges to be entirely nullified by restrictive regulations. On the other hand, if specific types of permissible regulations were enumerated, as was proposed in one amendment,6 receiving States might find that entirely reasonable regulations were excluded by the terms of the Convention. The Conference declined therefore to specify the kinds of regulation which would be permissible. It is, however, clear from the Conference records7 that the common understanding was that permissible regulations would include those which laid down procedural formalities and those which were designed to prevent abuse—for example, quantitative restrictions, a limit on the period of duty-free entry of goods related to establishment (in the case of mission staff entitled to privileges only on first installation), and regulations on subsequent disposal of articles imported duty-free. Regulations whose effect is to nullify the substantive privileges set out in Articles 36 and 37 (for example, by limiting the categories of staff given customs privileges) or whose motive is neither control of procedure nor control of abuse are not justified by the words ‘in accordance with such laws and regulations as it may adopt’. The UK Government in common with others have, for example, protested at protectionist national regulations whose purpose was to make it impossible for missions to import their own cars for official use and to oblige them to purchase locally manufactured ones instead. These are seen as different from incentives to local purchase, which are widely offered to diplomats and have not been challenged.

Article 36 imposes obligations on the receiving State and entitles the receiving State to prescribe a procedural framework to counter abuse. But the sending State also has an interest in preventing abuse and may also—often in collaboration with the receiving State—impose regulations on members of its missions for the same purpose. The US State Department authorized its ambassadors in Latin American States to issue regulations to control profiteering through the sale by members of diplomatic missions of goods—particularly automobiles—imported duty free. In Artwohl v United States8 the Court of Claims dismissed claims that this amounted to a taking of profits without compensation which violated the Fifth Amendment of the United States Constitution. They confirmed that ‘the Ambassador had the right to regulate these sales and even prohibit them altogether if he thought it in the interest of better relations with Brazil to do so’. The Embassy Instruction which was challenged, in explaining the background for the rules to be imposed, said: ‘It is imperative that each and every individual, as a guest in Brazil, conduct himself in such a manner so as to be free from any breath of suspicion concerning improprieties in any aspect of his life in Brazil, and particularly with regard to his duty-free privileges.’

Footnotes:

4  ILC Yearbook 1957 vol II p 140.

5  UN Doc A/CN 4/116 pp 68–9; ILC Yearbook 1958 vol I pp 158–60, vol II p 100 (Art 34 and para (3) of Commentary).

6  UN Doc A/Conf. 20/C 1/L 255 (India).

7  UN Doc A/Conf. 20/14 pp 188–9, p 22 (representatives of India and Chile).

8  434 F 2d 1319 (1970); 56 ILR 518.