Anthony Aust. Handbook of International Law

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by this provision is a valuable safeguard. What is unclear is the extent to which local courts can

exercise jurisdiction in relation to the premises of the mission without breaching the Convention.

Much will depend on whether the law of state immunity of the receiving state allows claims

concerning the property of foreign states; and, if it does, to what extent they can be made with

respect to the premises of a mission. In principle, the holding of land by a state for the purposes of a

diplomatic mission is an act jure imperii (performed in a governmental or public, rather than

commercial or private, capacity) and should be protected by state immunity. But, under section

16(1)(b) of the (UK) State Immunity Act 1978, a state is accorded immunity from legal actions

concerning ‘title to or its possession of property used for the purposes of a diplomatic mission’

(which wording reflects the immunity from civil jurisdiction for a ‘real action’ accorded to a

diplomatic agent by Article 31(1)(a) of the Convention). Since these terms seem to be directed more

to questions of ownership and the right to occupy, it may be that proceedings for more mundane, but

nevertheless important, matters such as arrears of rent or breach of covenant are permissible. But

even if successful, judgment against the state would not disrupt the working of the mission since the

judgment could not be enforced by execution against the premises of the mission or property on

them.

Bank account of the mission

This leaves the question of whether a judgment against a sending state can be executed against the

bank account of its diplomatic mission. The point is not answered by the Convention, since

immunity under Article 22(3) does not extend to property outside the premises of the mission, other

than vehicles (see below). However, it is now established from a series of judgments in various

countries that the bank account of a diplomatic mission enjoys immunity; to inquire into whether

some of the funds represent the proceeds of commercial activity, or were to be used for such activity,

would be to interfere in the affairs of the mission.

Protection from intrusion or damage

The inviolability of the mission premises is reinforced by the special duty placed on the receiving

state to take ‘all appropriate steps’ to protect the

23. See Denza, pp. 129–31.

24. See p. 125 above.

25. Denza, pp. 131–4 and 166–7. See also p. 173, n. 45 below.

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premises against any intrusion or damage (Article 22(2)). If the mission is particularly vulnerable, its

protection against intrusion may require a twenty-four-hour police or military guard. It also requires

the receiving state to expel intruders if the head of mission so requests. But his consent has not

always been sought before action was taken by the receiving state, most conspicuously in the case of

the unilateral action by the Peruvian Government to lift the siege of the Japanese ambassador’s

residence in Lima in 1996. This was a breach of the inviolability of the residence and disregarded

the primary responsibility of the ambassador and his government for the well-being of all persons in

the building.

Although the duty under Article 22(2) is limited to ‘all appropriate steps’, when damage has been

caused to mission premises, whether from outside or by intruders, in practice the receiving state pays

compensation even if it has not admitted any fault or it would not be easy to prove fault. In return,

receiving states expect, and sometimes make it a condition of payment, that sending states accord

reciprocal treatment. It has been the long-standing UK practice to make an ex gratia payment for

such damage, although there could be special circumstances when this might not be justified, for

example a terrorist attack. Given the nature of such an attack and the near impossibility of

preventing it, unless the receiving state had been alerted to the impending attack and had done

nothing, it may not be reasonable to expect it to pay compensation. Accordingly, the United

Kingdom now advises missions to insure themselves against damage, including from terrorist

attacks.

Disturbance of the peace of the mission and impairment of its dignity

Article 22(2) also places a duty on the receiving state to prevent any disturbance of the peace of the

mission or the impairment of its dignity. This duty is fraught with difficulty, particularly for a

receiving state which is at an advanced stage of democracy where the freedoms of speech and

assembly are jealously guarded. Balancing them with the duty under the Convention is not always

easy, but there is no requirement to insulate a mission from the free and peaceful expression of

views. Some states have quite specific and detailed laws or regulations on what demonstrators may

and may not do. Others, including the United Kingdom, deal with demonstrations on a case-by-case

basis, leaving it largely to the police to decide what is appropriate in the particular circumstances.

Happily, in London the police have a wealth of experience on which to draw. The police must

ensure that the work of the mission is not disrupted, that

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staff are not put in fear, and that both staff and visitors can come and go freely. This will often mean

that the demonstrators are kept on the opposite side of the street from the embassy. (A similar policy

should also be followed if a demonstration is held outside the foreign ministry, given that members

of missions need to have unimpeded physical access to it.) Very noisy demonstrations are frequent

today with the use of powerful loudhailers. Allowing them too near to a mission is difficult to

reconcile with the duty under the Convention.

Asylum

The Convention does not deal with the question of whether, and in what circumstances, a diplomatic

mission may grant diplomatic asylum. All that needs to be said here is that, even if it is wrongly

granted, the receiving state must, of course, respect the inviolability of the mission premises.

(Diplomatic asylum is dealt with at p. 187 below.)

When inviolability of mission premises begins and ends

Although Article 39 has detailed rules on when the privileges and immunities of members of a

mission begin and end, the Convention does not do the same for the premises of the mission. Their

mere acquisition will, in itself, not make them ‘premises of the mission’. But once the premises are

ready to be occupied, they probably then become premises of the mission and will continue so even

if later they have to be vacated for refurbishment. They will cease to have their special status once

they cease to be used for the purposes of the mission, which is essentially a question of fact, and

which in practice is often a matter of negotiation with the receiving state. The receiving state can

always agree to treat the site on which new buildings for the mission are being constructed as

premises of the mission.

Some states have legislation or administrative rules on the matter. The UK Diplomatic and

Consular Premises Act 1987

requires express consent before property can be regarded as premises

of the mission. Consent can be withdrawn in certain circumstances, in particular if the premises have

been abandoned.

26. See the Russia–UK Agreement of 1996, UKTS (1997) 1, Article 6.

27. For the note about it circulated to all diplomatic missions, see (1987) BYIL 1987 541.

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Exemption of mission premises from taxation

It is a basic principle that one state does not tax another, since this would amount to taking property

of the latter and anyway would be almost impossible to enforce. Accordingly, the sending state and

the head of mission are exempt from all dues and taxes, national, regional or municipal, in respect of

the premises of the mission, whether owned or leased, other than such as represent payment for

‘specific services rendered’ (Article 23). Thus if the sending state owns the mission premises, it is

liable to pay only that portion of local taxes which represents payment for such services, that is to

say general services which are financed from taxes and which are clearly beneficial to all missions,

such as street maintenance, lighting and cleansing, and fire services (the so-called beneficial

portion). Services which missions are less likely to benefit from are public education and libraries,

and welfare services. Although missions do benefit from the services of the police, since under

Article 22 the sending state has a duty to provide protection, the mission is not liable to pay for

them. The beneficial portion is not based on the amount of services actually used each year, since

given their nature that would be impossible to calculate, but on the amount spent on the beneficial

services relative to that spent on the other services. How this is applied in practice will vary from

state to state.

The exemption does not, however, apply to dues and taxes payable under the law of the receiving

state by persons contracting with the sending state or the head of mission (Article 23(2)). Thus, if a

lease provides that property taxes paid by the landlord are added to, or included in, the rent, the

sending state cannot claim exemption. But the exemption will apply if under the lease the mission is

otherwise liable to pay the taxes direct to the authorities.

Inviolability of mission archives

The ‘archives and documents’ (documents) of the mission are inviolable at all times wherever they

may be (Article 24). The term documents has to be given a wide definition to include at least all

items included in the definition of ‘consular archives’ in Article 1(1)(k) of the Vienna Convention

on Consular Relations 1963.

Today, it would also include documents held by electronic means,

such as those stored on computer hard and floppy

28. 596 UNTS 261 (No. 8638); UKTS (1973) 14; TIAS 6820.

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disks, CD-ROMs, memory sticks and whatever other new information-storage methods are invented.

The inviolability is extensive. It does not depend on the documents being in the custody of a member

of the mission or being readily identifiable as mission documents (no mission stamp is required),

even when outside the mission. Inviolability lasts indefinitely. Closure of the mission, severance of

diplomatic relations or armed conflict make no difference (see Article 45). The receiving state has an

obligation to protect the inviolability of the documents in all circumstances and to return them

immediately if they have been lost or stolen. If the documents are disclosed (other than by the

sending state) during legal proceedings, it is the duty of the court to respect their inviolability and to

ensure they are returned. This would be so even if the sending state is the defendant and state

immunity does not apply to the proceedings. If, however, a member of a mission had communicated

a document to a third party as part of his functions, it loses its inviolability.

Means of transport

As with property inside a mission’s premises, its means of transport have immunity from search,

requisition, attachment or execution wherever they are (Article 22(3)). This does not amount to

inviolability, but stopping and searching by the police of a motor vehicle is prohibited, as is wheel-

clamping, which is a breach of immunity from criminal jurisdiction. But the vehicle may be towed

away if it is causing a serious obstruction, the driver cannot be traced and it cannot just be moved

out of the way. No charges can be imposed, inconvenience being the only penalty. These points

apply equally to the personal vehicle of a member of a mission who enjoys immunity from criminal

jurisdiction.

Freedom of movement

Subject to its laws and regulations concerning special zones entry into which is prohibited or

regulated for reasons of national security, the receiving state must ensure to all members of the

mission freedom of movement and travel in its territory (Article 26). Such freedom is essential to

enable the members of the mission to report properly on conditions in the receiving state and to

protect its nationals. Any zones should therefore not be so extensive as to render freedom of

movement and travel illusory.

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Freedom of communication

Article 27(1) states the fundamental principle that the receiving state must permit and protect ‘free

communication’ by a diplomatic mission for all official purposes. ‘Free’ does not mean without

payment, but rather unrestricted communication between the mission and the sending state and its

other missions, its nationals wherever they are, missions of third states and international

organisations. The means by which this can be done is, however, circumscribed by the rest of the

provision. Thus the right for the mission to use ‘all appropriate means’ is limited to communications

with its government and its other missions and consulates. For this purpose, the appropriate means

include the use of diplomatic couriers and messages in code and cipher. But in communicating with

third parties, including their own nationals, missions may not use such means. Wireless transmitters

can, and of course do, transmit messages in code and cipher, but they cannot be used for

transmissions to third parties. Moreover, the installation and use of a transmitter (but not of

telephone lines by which coded faxes and e-mails can be sent) requires the consent of the receiving

state, but once this has been given the use of the transmitter is not subject to inspection or other

intrusive regulation. However, both sending and receiving states have obligations to the International

Telecommunications Union (ITU) to ensure that transmitters do not cause harmful interference with

other transmissions. Where the receiving state has laws and regulations regarding compliance with

ITU requirements, the mission should therefore comply with them (see Article 41(1) and (3)).

Inviolability of official correspondence

Article 27(1) confers inviolability on ‘all correspondence relating to the mission and its functions’.

Without the consent of the sending state, it cannot be used in evidence in the local courts or be

opened by the receiving state. Unfortunately, this apparently simple formula is unclear as to its

scope. All correspondence sent by the mission is covered, but it is not clear if correspondence to the

mission from its own government or its other missions is also covered. This has less practical

importance today when sensitive messages are either sent by electronic means in code or cipher or

by diplomatic bag.

The diplomatic bag

The diplomatic bag used to be the best means of ensuring secure communications between a sending

state and its diplomatic missions. Even

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after secure wireless or telephonic transmissions became widely used for diplomatic

communications, the diplomatic bag was still much used for sending lengthy classified documents

and sensitive items of equipment. Today, the ability to send even voluminous texts by secure fax or

e-mail has not made the diplomatic bag redundant, but it is certainly used less frequently.

Nevertheless, problems remain in applying the rules laid down in the Convention. At root is a

dilemma: how to balance the interests of the sending state in a secure means of communication,

against the concern of the receiving state that the inviolability of bag should not be abused. The

problem is complicated by the simple fact that each state is both a sending state and a receiving

state.

What is a diplomatic bag?

Most diplomatic bags are still mailbags made of stout woven fabric, although no doubt human rights

norms now prevent them being sewn by prisoners. But the bag does not have to be a sack or pouch.

Because it can be used for heavy and bulky items, such as communications equipment and

computers – even building materials – the bag can be a freight container carried on a lorry, although

the vehicle itself would not usually be accepted as a bag.

To have the status of a diplomatic bag, ‘the packages constituting the diplomatic bag must bear

visible external marks of their character’ (Article 27(4)). Although it is for each sending state to

inquire into the precise requirements of the receiving state as to the marking of diplomatic bags,

international practice normally requires (1) the bag to be sealed with a wax, metal (commonly lead)

or plastic official seal of the sending state or its diplomatic mission, and (2) a label (tied or stuck to

it) addressed to the mission or the foreign ministry and bearing an official stamp.

The diplomatic bag must be clearly distinguished from packages which, although destined for, or

sent from, a mission, do not carry the necessary marks of a diplomatic bag. Such packages come

within Article 36(1)(a).

What may the diplomatic bag contain?

Article 27(4) requires the bag to contain ‘only diplomatic documents or articles intended for official

use’. This is reinforced by Article 41(1) and (2), which places a duty on the members of the mission

to respect the

29. See p. 146 below.

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laws and regulations of the receiving state and not to allow the mission to be used ‘in any manner

incompatible with the functions of the mission’. Thus the use of the bag to send narcotic drugs,

weapons and explosives is an abuse of the Convention and local law, although some receiving states

do permit the use of arms for personal defence. Nevertheless, provided the bag bears the correct

marks evidencing that it is a diplomatic bag, the fact that it contains prohibited items will not affect

its status.

Prohibition on opening or detaining the diplomatic bag

Article 27(3) prohibits the bag from being ‘opened or detained’. Although not expressed in terms of

inviolability, that is its effect. Except in the exceptional cases described below, a receiving state

must never open a bag or impede its passage. Even if it has grounds for suspecting that its

inviolability is being abused, the receiving state has no right to open it or to require it to be returned

to the sending state or the mission. (Requiring it to be sent back is the formula in Article 35(3) of the

Vienna Consular Convention and was one of several suggested formulas in the 1980s to replace

Article 27(3), but no agreement could be reached.)

There are, however, occasions when a

receiving state claims the right to detain, refuse admittance to, or even open, an incoming bag that it

claims to be suspect. The reaction of the sending state will depend on the circumstances, but as a last

resort the sending state may in practice have no option but to return the bag to its foreign ministry.

Before doing so, it should of course firmly remind the receiving state that if it persists in its illegal

demand it risks reciprocal action (see Article 47(2)(a)).

There are cases, fortunately extremely rare, where the circumstances are so exceptional that the

receiving state may feel compelled, in the genuine interests of protecting human life or its national

security, to insist on a bag being opened against the objections of the sending state. Such cases will

occur only when there are very strong grounds for believing that the bag contains a human being, a

corpse or explosives.

Scanning the diplomatic bag

Scanning by X-rays or by using ultrasound or radioactivity detectors was either not technically

possible, or widely practised, in 1961. Today, the

30. See Denza, pp. 199–203.

31. And see p. 154 below. See also Denza, pp. 187–9, on reservations made by certain Arab states to

Article 27 in which they claim the right to reject a suspect bag if the sending state does not agree to it being

opened.