In The Simpsons episode ‘Bart vs Australia’, the eponymous family visits the Great Southern Land after Bart unintentionally causes a diplomatic incident. When leaving the American embassy in Canberra, a marine stationed there informs them that the embassy is considered ‘American soil’. Here’s the relevant part of the episode:
Amusing though the scene is, it does not reflect the true status of embassies in international law. While embassies do enjoy a privileged position that stems from the small but important area of international law known as diplomatic law, they remain the territory of the host state.
Diplomatic law consists of a body of rules contained in treaties and customary international law that were developed to facilitate relations between countries, and to protect embassies and ambassadors during the conduct of diplomatic relations. The preeminent instrument of diplomatic law is the 1961 Vienna Convention on Diplomatic Relations1 (‘VCDR’). Despite being a relatively short instrument, the VCDR has been ratified by nearly every sovereign state, and so governs the diplomatic relations of all but a handful of countries. The VCDR both codified existing customary international law and established new rules applicable to diplomatic relations.2
Article 3 of the VCDR provides:
- The functions of a diplomatic mission consist, inter alia, in:
(a) Representing the sending State in the receiving State;
(b) Protecting in the receiving State the interests of the sending State and of its nationals, within the limits permitted by international law;
(c) Negotiating with the Government of the receiving State;
(d) Ascertaining by all lawful means conditions and developments in the receiving State, and reporting thereon to the Government of the sending State;
(e) Promoting friendly relations between the sending State and the receiving State, and developing their economic, cultural and scientific relations.
Article 21 of the VCDR requires a receiving state to facilitate a sending state’s acquisition of premises necessary for the diplomatic mission, on the territory of the receiving state and in accordance with the receiving state’s laws. This does not involve sovereignty changing hands, but rather that the sending state may purchase, lease or be granted premises (with the assistance of the receiving state) within the territory of the receiving state.
Article 22 of the VCDR may be the main source of confusion as to whether embassies are foreign territory. Article 22(1) provides that the premises of an 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 give the illusion of sovereignty, but are in fact only diplomatic immunities that are intended to protect the operations and interests of the sending state. Although these distinctions may seem obtuse, there are significant implications that follow. Under article 9 of the VCDR a receiving state is entitled to require the recall of diplomats (that is, to expel diplomats) at any time and without giving reasons, something which would not be possible if the embassy was the territory of the sending state because the diplomat would already be outside the receiving state. Similarly, extradition processes do not apply if a person seeks refuge in an embassy, and the head of the diplomatic mission may either allow the person to stay or turn them over to the receiving state’s authorities.
In 1993 the United States Second Circuit Court of Appeals indicated that the rule that embassies are inviolable is absolute.3 The original draft of article 22 of the VCDR would have allowed entry in case of emergency, but this was rejected (although there is some argument that certain violations, such as to protect human life, will be permitted if they can be justified under international law). 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 permitted by the head of the diplomatic mission.
Receiving states have an obligation to protect the embassies of sending states. In the 1980 Iranian Hostages case, the International Court of Justice was extremely critical of Iran’s failure to protect the United States’ 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.4
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.5
If 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 the 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, and this appears to be the correct interpretation of article 45(a).6
Although it makes for amusing television, embassies are not foreign territory. 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 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, while the receiving state retains sovereignty.
Vienna Convention on Diplomatic Relations, opened for signature 18 April 1961, 500 UNTS 95 (entered into force 24 April 1964). ↩
United States Diplomatic and Consular Staff in Tehran (United States v Iran)  ICJ Rep 3, 24. ↩
767 Third Avenue Associates v Permanent Mission of the Republic of Zaire to the United Nations, 988 F2d 295 (1993). ↩
United States Diplomatic and Consular Staff in Tehran (United States v Iran)  ICJ Rep 3, 31. ↩
Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda)  ICJ Rep 168. ↩
See Malcom Shaw, International Law (Cambridge University Press, 7th ed, 2014) 549–50. ↩