You might remember an episode of The Simpsons (‘Bart vs Australia’) where the eponymous family visits Australia after Bart causes a diplomatic incident. When leaving the American embassy in Australia, a Marine stationed there informs them that the embassy is considered American soil. Homer begins jumping back and forth through the embassy gates until punched in the face by the Marine who says ‘Here in America we don’t tolerate that crap, sir!’

Amusing though it is, this is far from the real status embassies have in international law. The confusion likely stems from the privileged position that embassies enjoy. These privileges stem from the small but important area of international law known as diplomatic law. Diplomatic law consists of a body of rules contained in treaties and customary international law that facilitate relations between countries and protect embassies and ambassadors in the conduct of diplomatic relations.

The go-to legal instrument for diplomatic law is the 1961 Vienna Convention on Diplomatic Relations (‘VCDR’). Despite being relatively short (it contains just 53 articles), it has been ratified by nearly every sovereign state, meaning it governs the diplomatic relations of all but a handful of countries. The International Court of Justice (‘ICJ’) acknowledged in the Iranian Hostages case that the VCDR both codified existing customary international law and established new rules to govern diplomatic relations: United States Diplomatic and Consular Staff in Tehran (United States v Iran) [1980] ICJ Rep 3, 24.

Article 3 of the VCDR provides that a ‘diplomatic mission’ has, among others, the following functions:

  1. Representing the sending state in the receiving state.
  2. Protecting the interests of the sending state and its nationals in the receiving state.
  3. Negotiating with the receiving state’s government.
  4. Providing information on the conditions and developments in the receiving state to the government of the sending state.
  5. Promoting friendly relations between sending and receiving states.

Article 21 requires a receiving state to facilitate a sending state’s acquisition on its territory of premises necessary for the diplomatic mission, in accordance with the receiving state’s laws. This does not mean that the territory changes hands, but rather that the sending state may purchase or lease premises (with the assistance of the receiving state) within the territory of the receiving state. For the territory to change hands, this would require the receiving state to cede that territory by treaty to the sending state.

Article 22 of the VCDR is probably the main source of confusion as to whether embassies are foreign soil. Article 22(1) provides that the premises of the embassy are inviolable: ‘The agents of the receiving State may not enter them, except with the consent of the head of the mission.’ The receiving state is under a duty to enforce this inviolability, and everything within the premises of the embassy is immune from search or other interferences. Article 24 extends this inviolability to the archives and documents of the diplomatic mission (whether within the embassy or otherwise).

These privileges may give the illusion of sovereignty, but it is actually a high degree of diplomatic immunity to protect the operations of the sending state. Although these distinctions might seem obtuse, there are significant implications. A receiving state is entitled to require the recall of diplomats (in informal terms, to expel diplomats) at any time and without giving reasons, under article 9 of the VCDR; this would not be possible if the embassy was the territory of the sending state because the diplomat would already be on foreign soil. Similarly, extradition processes do not apply where a person hides in an embassy — the head of the diplomatic mission can allow them to stay or can turn them over to the receiving state’s authorities.

In 1993 the US Second Circuit Court of Appeals indicated that the rule that embassies are inviolable is absolute: 767 Third Avenue Associates v Permanent Mission of the Republic of Zaire to the United Nations, 988 F2d 295 (1993). The original draft of article 22 would have allowed entry in case of emergency, but this was rejected. Nevertheless there is some argument that certain violations will be permitted if they can be justified under international law, such as to protect human life. It is also clear under article 41(3) of the VCDR that a diplomatic mission must not be used in a way that is inconsistent with diplomatic functions. In reality, access to an embassy in case of emergency will normally be granted by the head of the diplomatic mission.

The obligation of a receiving state to protect the embassy of a sending state has been raised in two high-profile cases. In the Iranian Hostages case the ICJ was extremely critical of Iran’s failure to protect the US embassy in Tehran, stating that ‘Iran was placed under the most categorical obligations, as a receiving state, to take appropriate steps to ensure the protection of the United States Embassy and Consulates, their staffs, their archives, their means of communication and the free movement of the members of their staffs.’ In Congo v Uganda the ICJ emphasised that the receiving state must not only refrain from breaching the inviolability of a diplomatic mission, but must be proactive in ensuring that others (such as armed militia) do not either: Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) [2005] ICJ Rep 168.

In the case where there is a break in diplomatic relations, article 45(a) of the VCDR requires the receiving state to ‘respect and protect the premises of the mission’. In 1984 a peaceful demonstration outside the Libyan Embassy in London was interrupted by shots from the embassy, resulting in the death of a police officer. After a siege, the Libyans left the building and it was searched. Weapons and other forensic evidence were found. It was the British Government’s view that the premises do not continue to be inviolable once vacated. This appears to be the correct interpretation of article 45(a): see Malcolm Shaw, International Law (Cambridge University Press, 7th ed, 2014) 549–550.

So, although it makes for amusing television, embassies are not foreign soil. They remain part of the territory of the receiving state, but are subject to significant privileges in accordance with diplomatic law. To the extent possible under international law, the laws of the receiving state apply to the embassy, but cannot be enforced by agents of the receiving state on the premises of the embassy without the permission of the head of the diplomatic mission. This allows the sending state’s diplomatic mission to carry out its operations without interference from the receiving state, but means that the receiving state is still able to exercise a limited form of sovereignty.