The Territorial Status of Embassies

A pop culture myth persists that an embassy is the territory of the country that established it. In a 1995 episode of The Simpsons, a Marine guarding the US embassy in Canberra informs Bart that ‘the embassy is considered American soil’,¹ a case of artistic licence not yet noted on the episode’s TV Tropes page.

It was also raised in a 2010 episode of QI, in which host Stephen Fry asked where ‘the nearest piece of American soil’ to the studio was and the forfeit was ‘Grosvenor Square.’ As Fry rightly explained,

the American Embassy is in Grosvenor Square … But an embassy is not considered the sovereign soil of the nation whose embassy it is. It belongs to Britain, the soil there. It’s not American soil. This is a myth, this idea that the moment you step foot you’re on American soil.²

This post elaborates on the territorial status of embassies and how the privileges they enjoy under international law contribute to the myth.

Relations between countries are facilitated by a body of rules established in treaties and customary international law. The most important instrument is the 1961 Vienna Convention on Diplomatic Relations,³ which has been ratified by all but a few UN member and observer states.⁴ It codified customary international law while also establishing new rules for diplomatic relations.⁵

The Convention contains rules relating to diplomatic missions; that is, embassies and high commissions.⁶ Under Article 21, receiving states must assist sending states in acquiring premises necessary to maintain a diplomatic mission in accordance with the receiving state’s laws. This does not require or imply that the receiving state cedes territory to the sending state. Territory does not change hands. Instead, the sending state may purchase, lease or otherwise be granted premises within the receiving state’s territory.

Confusion over territorial status may result from the privileges diplomatic missions enjoy. Article 22(1) of the Convention provides: ‘The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission.’ The receiving state must observe and enforce this rule per Article 22(2) and everything within the premises is immune from search or other interference per Article 22(3). Inviolability extends to archives and documents of the diplomatic mission, whether within the premises or otherwise, per Article 24.

In 1993, the United States Court of Appeals for the Second Circuit indicated that the inviolability of diplomatic missions is absolute.⁷ Receiving states are obliged to protect the diplomatic missions of sending states. In 1980, the International Court of Justice strongly criticised Iran’s failure to protect the American embassy in Tehran:

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.⁸

In 2005 the Court again 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.⁹

If there is a break in diplomatic relations, Article 45(a) of the Convention requires that the receiving state ‘respect and protect the premises of the mission’. However, inviolability has been understood to cease when the premises are vacated.¹⁰

These privileges may give the impression that embassies are outside the territory of the receiving state. However, they are merely immunities intended to ensure that diplomatic missions can operate effectively.

Practical consequences follow from this distinction. Under Article 9 of the Convention, a receiving state is entitled to require the recall of diplomats — to expel them — at any time and without giving reasons. If embassies were territory of the sending state, a diplomat in an embassy would already be outside the receiving state.

Similarly, extradition processes do not apply to embassies because they are not foreign territory. If a person seeks refuge in an embassy, the head of the diplomatic mission has discretion to hand them over to the receiving state without any formal process.

So, although it makes for good television, embassies are not foreign territory. They remain part of the territory of the receiving state, but enjoy substantial privileges under diplomatic law. The laws of the receiving state continue to apply to the embassy, but cannot be enforced there 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, while leaving territorial sovereignty unaffected.