DIPLOMATIC MISSIONS AND INTERNATIONAL LAW

States establish diplomatic missions and send both diplomatic and non-diplomatic staff abroad in order to represent and protect their interests and those of their nationals.Such missions and personnel are granted different privileges and immunities in the receiving states so that they can perform their official functions as independently and efficiently as possible. These guarantees are supposed to prevent attacks on diplomatic missions and their staff by both public officials and private persons and are intended to avoid any other obstacles to performance of their official functions. In reality, there is not often need for such a protection — states refrain from interfering, as they are interested in mutually friendly relations and wish their own diplomatic missions and the staff thereof to have the widest possible freedom to operate in the respective receiving states. The principle of reciprocity is the most effective means against breaches of diplomatic law. Nevertheless, there are still occasions on which the privileges and immunities provided become indispensable to ensuring the normal functioning of a diplomatic mission and the physical safety of its staff. The danger may originate from local authorities as well as from private persons or their groups, acting independently or under the order of the receiving state. Sometimes the receiving state chooses to ignore completely its obligations and allows the threatening situation to continue.

According to long-established and universally recognised practice, receiving states must guarantee certain privileges and immunities to the diplomatic missions established in their territories and to diplomatic and non-diplomatic staff sent there. Such privileges and immunities are codified in the Vienna Convention on Diplomatic Relations (1961). It stresses that the purpose of these privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions representing states. Indeed, if a diplomatic mission and its staff were subject to the jurisdiction of the receiving state in the same manner as everyone else and therefore completely dependent on its goodwill, their actions potentially would be influenced to such an extent that the performance of the functions entrusted to them by the sending state is hampered. However, the privileges and immunities are necessary not only when the staff is exercising official functions but also, at least to some extent, in regard of their private actions, as the receiving state can influence their independence equally through their private life. For a similar reason, family members are considered an extension of a member of diplomatic or non-diplomatic staff and must also be protected.

From the perspective of physical protection, there are three important guarantees:

1. Inviolability of the premises
2. Personal inviolability
3. Freedom of movement

The first two of these were considered so important by the signatory states that the Vienna Convention does not include any exceptions from these inviolabilities. They constitute basic norms that are respected by all civilised nations and that rarely are violated; even when they are violated, the problem stems from extreme circumstances or, at worst, unawareness on the part of the actor concerned or the responsible person.

The inviolability of the premises is an undeniably established norm of international law according to which the premises of a diplomatic mission physically present in the territory of the receiving state are not subject to the jurisdiction of the receiving state in the same manner as other property is. In the present context, there are two important aspects of inviolability of the premises: 1) the agents of the receiving state may not enter the premises of the mission, except with the consent of the head of the mission, and 2) the receiving state has a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.

The prohibition from entering the premises of the mission imposes a negative obligation — to refrain from corresponding action. The inviolability of the premises is absolute, meaning that the premises of the mission may not be entered even by the police chasing a criminal or by fire-fighters if there is a fire on the premises of the mission. Entry is not even allowed if the receiving state has serious reason to believe that the premises of the mission are being used in a manner incompatible with the functions of the mission. For example, if the premises of the mission are used for smuggling weapons or narcotics or for organising terrorist attacks, the receiving state may merely ask for the assistance of the sending state to stop such activities occurring at its diplomatic mission. Moreover, the practice should be that the head of the mission weighs the specific circumstances carefully when deciding whether to allow entry.

As both the International Law Commission and the majority of the states participating in the Vienna Conference stressed, the nature of the inviolability of the premises should be unqualified. Accordingly, they refrained from adding exceptions even for cases of emergencies; the possibility of appealing to self-defence should be treated with outmost caution. In any case, pretexts such as ‘in the interest of national security’ and ‘there are serious suspicions’ are certainly not enough to trigger applicability of the right of self-defence.  This does not mean that self-defence is completely out of the question; however, first it must be demonstrated that there is “a necessity of self-defence, instant, overwhelming, leaving no choice of means and no moment for deliberation”.

The duty to protect the premises of the mission imposes a positive obligation that has a much less clear content and allows differing interpretations. The performance of this duty may actually result in contradictions with fundamental rights and freedoms (for example, freedom of speech, assembly, and movement) laid down in constitutions and international agreements. There were no problems when the relevant provision of the Vienna Convention was drafted, as this duty had been firmly established in customary international law and was considered obvious.

A special duty means that the receiving state must do more for the protection of the premises of the mission than it would normally do to ensure public order. This duty is a positive obligation that requires active contribution from the receiving state. However, this is not an absolute duty, as “all appropriate steps” denotes that all measures taken must be proportional to the risk and dangers threatening the premises of the mission. Therefore, it is unreasonable to assume that the receiving state shall assign a 24-hour large police unit to guard every diplomatic mission. However, if the receiving state is aware, for example, of potential dangers to the mission or hostile demonstrations to be organised near the mission or if the head of the mission informs the receiving state of, for instance, an act of trespassing or an attack in progress, then the receiving state is obliged to offer the mission protection that corresponds to the actual threats. Some states have deemed it necessary to adopt special measures in order to prevent attack against and damage to the premises of the mission, as well as any disturbance of the peace of the mission and impairment of its dignity.

The duty to protect the premises of the mission is fulfilled if the functioning of the mission is not impaired, its staff do not feel threatened, and its staff and visitors are able to freely arrive at and leave the mission. 

Personal inviolability is without doubt the cornerstone of diplomatic law, as even in ancient times people had to understand that reaching agreements and achieving mutual intercourse is difficult if envoys are killed when arriving or negotiating. By the time of the conclusion of the Vienna Convention, the principle of personal inviolability was so strongly established in customary international law that the commentary of the International Law Commissions on the respective article is clearly more than laconic if one takes into consideration its importance. At the same time, the commentary did include a very importance element; namely, it stated that the principle of personal inviolability does not exclude, in respect of the diplomatic agent, either measures of self-defence or, in exceptional circumstances, measures to prevent him from committing crimes or offences. Personal inviolability has two important aspects: 1) a diplomat is not to be subjected to any form of arrest or detention, and 2) the receiving state must treat a diplomat with due respect and take all appropriate steps to prevent any attack on his person, freedom, or dignity.

It may well happen that the police stop a diplomat in good faith, but as soon as it has been established that this person has diplomatic status, he must be released immediately. The diplomat may not be searched or, for example, forced to take a sobriety test. However, personal inviolability does not imply that the diplomat need not pass a security check, either manual or electronic, before boarding an aeroplane. If the diplomat refuses to submit to such a check, the airline company is not obliged to serve him. According to the Vienna Convention, personal inviolability is unqualified: there are no explicitly mentioned exceptions, even for cases of emergencies. Certain limited exception may be derived from the right of self-defence and potentially also from the need to protect human lives.

The possibility of the first exception has been confirmed by both the International Law Commission and the International Court of Justice, which stated that a diplomat caught in the act of committing an assault or other offence may, on occasion, be detained briefly by the police of the receiving state in order to prevent commission of the specific crime in question.

When discussing the protection of diplomats, the Vienna Convention does not explain the concepts ‘all appropriate steps’ and ‘attack’. Unfortunately, these notions are not elaborated on, even in the later Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, Including Diplomatic Agents (1973). What steps are appropriate depends, naturally, on the threatening dangers, and one has to take in account also reasonability and proportionality. In addition, the general conditions in the receiving state may be of noteworthy importance.  The special duty to protect diplomats means that the receiving state must do more for the protection of the premises of the mission than it would normally do for ordinary people.

The ability to travel freely in the territory of the receiving state is very important for the performance of diplomatic functions. The protection of the interests of the nationals of the sending state is seriously hindered without such a freedom because diplomats cannot meet with their country’s nationals. Protection of the interests of the sending state is equally hampered if diplomats are not able to meet with local authorities or diplomats from other missions. Lack of the freedom of movement affects also the ability of a diplomat to assess conditions and developments in the receiving state and to report thereon to the sending state. In order to obtain a full and accurate picture of the prevailing conditions and ongoing developments in the receiving state, diplomats must have an opportunity to travel in different regions of the receiving state. If they are residing only in the capital, which usually is more developed than the rest of the receiving state, it is inevitable that the knowledge and understanding gained of the receiving state are incomplete.

The Vienna Convention was expected to guarantee freedom of movement as clearly and broadly as possible. The issue was discussed by the International Law Commission, with the majority supporting the inclusion of a corresponding article in the convention but also wanting to make sure that the receiving state could restrict entry into certain areas for reasons of national security. Thus, the receiving state must ensure all members of a diplomatic mission freedom of movement and travel in its territory, except for those areas for which entry is prohibited or regulated for reasons of national security. Certain restrictions are understandable because there are always areas that even local people are prohibited from entering, not to mention foreigners, on account of interests of national security. In addition, some areas may simply be dangerous, for example, because of riots or epidemics, so, as the receiving state has a duty to protect diplomats, they may be forbidden to travel to such areas.

However, making an exception to freedom of movement on grounds of national security is dangerous, as the latter is a very elastic notion that can cover very many and different situations if supported with skilful rhetoric. In any case, the creation of forbidden areas for different reasons may not render the freedom of movement illusory.