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Trends in the Law Concerning Diplomats
Published online by Cambridge University Press: 09 March 2016
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- Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 19 , 1982 , pp. 132 - 157
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- Copyright © The Canadian Council on International Law / Conseil Canadien de Droit International, representing the Board of Editors, Canadian Yearbook of International Law / Comité de Rédaction, Annuaire Canadien de Droit International 1982
References
1 See Phillipson, I, The International Law and Custom of Ancient Greece and Rome 303, 328–41 (1911)Google Scholar; see also Siyur, , Shaybani (8th century), tr. Khadduri, The Islamic Law of Nations 170 (1966).Google Scholar
2 Phillipson, op. cit., 332; see also Satow, , A Guide to Diplomatic Practice 248, 253 (1957).Google Scholar
3 Oliphant, , Ambassador in Bonds (1947).Google Scholar
4 Gentili, , De Legationibus, 1594 Google Scholar, Lib. II, Cap. I, XIV; Grotius, , De Jure Belli ac Pacis, 1635, Lib. II, Cap. XVIIIGoogle Scholar; Bynkershoek, , De Foro Legatorum, 1744 Google Scholar; Vattel, , Le Droit des Gens, 1758, Liv. IV, ch. VII.Google Scholar
5 7 Anne, c. 12.
6 Satow, op. cit. supra note 2, at 181–82.
6a See The Times (London), December 3, 1981, re transfer to the Soviet Union of a Soviet diplomat caught trying to suborn a U.S. soldier in West Berlin.
7 See, e.g., incident re Iranian Minister to Washington, November 1953, Sen, , A Diplomat’s Handbook of International Law and Practice 92 (1979).Google Scholar
8 See McNair, I, International Law Opinions 186 (1956)Google Scholar; 7 British Digest of International Law 756–71. See also Cellamare incident, 1718, 1 de Martens, Causes Célèbres 83 (1858); Satow, op. cit. supra note 2, at 294 et seq. For a general discussion, see Bynkershoek, op. cit. supra note 4, Cap. XVII.
9 500 U.N.T.S. 95.
10 Arts. 22–31.
11 Italics added.
12 See R. v. A.B., [1941] I K.B. 454 (sub nom. R. v. Kent (1941), 110 L.J.K.B. 268).
13 See R. v. Madan, [1961] 2 Q.B. 1, in which the waiver was held to be invalid.
14 Art. 32.
15 (1937) Ser. A/B, Nos. 72, 73 (4 Hudson, World Court Reports 289).
16 E.g., Faulkner Claim (1926), 4 R.I.A.A. 67; see also Chapman Claim (1930), 4 R.I.A.A. 632, 638.
17 Chevreau Claim (1931), 2 R.I.A.A. 1113.
18 Art. 43 of the Vienna Convention on Consular Relations, 1963, 596 U.N.T.S. 261, exempts consuls from arrest or detention pending trial except for a grave offence. See Re L. (1977), 4 Commonwealth Law Bulletin 51 (1978) (N.Z. Supreme Court).
19 But see Vienna Convention, Arts. 49–51.
20 Chapman Claim, supra note 16, at 637, 638; see also the Mallén case (1927), 4 R.I.A.A. 173, 175–76.
21 This right is now embodied in Art. 36.
22 Supra note 18.
23 6 Moore, Digest of International Law 813 (1906).
24 See, e.g., Green, , “The Tehran Embassy Incident — Legal Aspects,” 19 Archiv des Völkerrechts 1 (1980)Google Scholar; Gross, , “The Case of U.S. Diplomatie and Consular Staff in Tehran: Phase of Provisional Measures,” 74 Am. J. Int’l Law 395 (1980)CrossRefGoogle Scholar; Falk, , “The Iran Hostage Crisis: Easy Answers and Hard Questions,” ibid., 411 Google Scholar. This was not the first occasion on which an American diplomat was seized as “hostage” for alleged actions by the U.S. government — in 1966, the U.S. Ambassador to Guinea was placed under house arrest on account of U.S. “responsibility” for seizure of Guinean officials in Ghana while on the way to an O.A.U. conference; The Times, October 31, 1966.
25 Jenkins, , Embassies under Siege 10 (1981)Google Scholar —21 in Latin America, 11 in Western Europe, 10 in the Middle East and North Africa, 3 in North America, 3 in the Far East.
26 Case concerning U.S. Diplomatic and Consular Staff in Tehran — Provisional Measures [1979] I.C.J. Rep. 7, Judgment [1980] I.C.J. Rep. 3.
27 13 Int’l Legal Materials 41 (1972).
28 See, however, incidents referred to in Green, supra note 24, at 2–3.
29 Iran was threatening to try some of those held for espionage.
30 The Iranian attempt to link the detention of the hostages with their own complaints against the U.S. was therefore totally irrelevant and misplaced.
31 [1979] I.C.J. Rep. 19–20.
32 Declaration that a particular diplomat is persona non grata, expulsion of a diplomat, or breach of diplomatic relations. In January 1978 Canada ordered 13 Soviet diplomats to leave because of “inadmissible activities in violation of the Official Secrets Act, and of course of their status in Canada”; H.C. Deb., February 9, 1978, at 2697–98.
33 See Siyur/Khadduri, supra note I. The militants and the government which supported their activities were followers of Islam. But see supra note 28.
34 It is possible that the documents used in Rose v. The King, [1947] 3 D.L.R. 618, could not be so used today. See, however, defection of Romanian diplomat in Vienna with sacks of documents which were used by western intelligence officials to identify east European agents operating in the West, The Times, January 31, 1981.
35 See the circumstances leading to the expulsion of the first secretary to the Zairean Embassy in Zimbabwe for involvement in illegal jewel and currency dealings, ibid., May 15, 1981. See also Soviet reaction to smuggling of icons and other relics by diplomats particularly from the Third World: “In their desire to cultivate good relations with developing countries, the Russians have long turned a blind eye to the black market dealings of many Third World diplomats in Moscow…. Customs officers are opening diplomatic baggage more often — a measure allowed under international convention only if there is good reason to suspect smuggling [Vienna, Art. 36]. Several Third World diplomats were expelled for icon smuggling last year,” ibid., January 8, 1981. See also supra note 6a.
36 [1980] I.C.J. Rep. 40.
37 See Satow, op. cit. supra note 2, at 189, 292.
38 R. v. Cossette-Trudel (1979), 52 C.C.C. (2d) 352, 362, 363; the original French judgment is reported at 11 C.R. (3d) 1.
39 Two years less a day to be served in a provincial centre, resulting in detention for only six months.
40 Canada ratified the Vienna Diplomatic Convention in 1966, acceded to the Consular Convention in 1974, and ratified the Convention on Crimes against Internationally Protected Persons in 1976.
41 See statement by President Fillmore, supra note 23, and by I.C.J, in Tehran case, supra note 31.
42 Supreme People’s Procuratorate v. Yang Kuo-Ching (1966), 40 I.L.R. 200, 201–2.
43 Jenkins, op. cit. supra note 25, at 18, 30.
44 The Times, December 21, 1979.
45 For a list and summary of events, see Jenkins, op. cit. supra note 25, at 27–38.
46 See Geraghty, Inside the SAS 177–81 (1980).
47 Jenkins, op. cit. supra note 25, at 23–25.
48 See text to notes 68–73 infra.
49 See, e.g., Green, , “Rescue at Entebbe — Legal Aspects,” 6 Israel Y.B. on Human Rights 312 (1976).Google Scholar
50 [1980] I.C.J. Rep. 43–44.
51 [1979] I.C.J. Rep. 21.
52 See supra note 7. There is hardly a country which does not complain at the number of parking offences committed by diplomats, and their frequent failure to pay the relevant penalties. In the British House of Commons, November 17, 1969, the Home Secretary reported on 26,000 such refusals during the preceding twelve months. He also referred to 130 offences against the road traffic laws, 6 of theft, 2 of assault, and 10 others, in none of which proceedings had been instituted. Mr. Callaghan did say “Diplomats have a responsibility to conduct themselves when they are in this country in a manner expected of ordinary citizens”; The Times, November 18, 1969.
53 See memo by Canadian Dept. of Ext. Aff., 1979 in 18 Canadian Yearbook of International Law 304 (1980).
54 Art. 22. In March 1979 the United States ambassador permitted Soviet police to enter the embassy to deal with a Soviet citizen who was carrying a home-made bomb; according to The Times, March 17, 1981, he was killed by the police in the embassy; but see ibid., August 21, 1981, where it is stated that he blew himself up after the police entered.
55 When the Guatemalan authorities stormed the seized Spanish embassy in June 1980, contrary to the Ambassador’s plea that force not be used, Spain severed diplomatic relations, Jenkins, op. cit. supra note 25, at 36–37. See also Dominican ultimatum to Haiti after local militia entered the embassy seeking anti-Duvalier partisans, The Times, April 29, 1963, and Swedish assault on Iranian embassy in Stockholm to free ambassador and wife held captive by anti-Khomeini students, ibid., August 25, 1981.
56 This was the position re the seizure and relief of the Iranian embassy in London: supra note 46.
57 Asylum Case, [1950] I.C.J. Rep. 266, 275.
58 E.g., Havana Convention on Asylum, 1928, 132 L.N.T.S. 323; Montevideo Convention on Diplomatic Asylum, 1933, 6 Hudson, , International Legislation 608 Google Scholar. See also statement by Canadian representative to 6th Committee at XXXth Session, General Assembly, November 3, 1975, in 4 Canadian Yearbook of International Law 335 (1976).
59 As seems to have been the case with Cardinal Mindszenty, who remained a fugitive in the U.S. embassy in Budapest from 1956 until guaranteed safe passage out of Hungary in 1971.
60 Ministry of External Affairs, New Delhi, Note No. 6297-JSP/67, December 30. 1967.
61 See Opinion of Law Officers, September 5, 1870, during Franco-Prussian War: “That this being a case of the saving of human life, we think that the Consul was justified in giving every facility for the escape of those whose personal safety was in danger,” 7 British Digest 907. See also ibid., 911, 916; 6 Whiteman, Digest 428–98.
62 This does not mean, however, that the local authorities may enter the embassy to remove those wrongly afforded or seeking asylum. See Dominican-Haitian issue, supra note 55. See also Italian protest to Iran, , Globe and Mail (Toronto), July 16, 1981.Google Scholar
63 18 Canadian Yearbook of International Law 304–5 (1980); see also letter from Under-Sec, Ext. Aff., April 1, 1966, in 5 ibid., 274 (1967); and statement of 1961, in Castel, , International Law 519–20 (1976)Google Scholar; and loc. cit. supra note 58.
64 Loc. cit., 274, italics added.
65 U.S. Digest 1978, at 567.
66 Ibid., 567–70.
67 The Times, June 27, 1981.
68 [1979] I.C.J. Rep. 20.
69 In fact, the activists did move against the British and Soviet embassies, but their efforts were frustrated by the Iranian authorities.
69a See, e.g., reply of January 22, 1981 by Under-Sec. of State for Ext. Aff. to the enquiry of December 29, 1981 by the Moroccan ambassador to Canada as dean of the diplomatic corps relating to immunity of suit. The enquiry was stimulated by a suit launched in 1967 by the Waltham Press against the U.S.S.R. with a default judgment being obtained in 1973, a representative of the successful plaintiff having sought execution of the judgment in 1980.
70 Memo of 1980, loc. cit. supra note 63, at 305, italics in original.
71 Art. 44, which requires co-operation from the receiving state “at the earliest possible moment” and “even in case of armed conflict.”
72 Re Gur (1971), 1 I.A.C. 384; see also Joyce v. D.P.P., [1946] A.C. 347.
73 The Times, February 11, 1981.
74 See expulsion of two Soviet diplomats from Holland and declaration making the ambassador persona non grata regarding incident at Schiphol airport concerning wife of Russian chemist who sought asylum, ibid., October 10, 13, and 14, 1961.
75 Art. 41 (I).
76 Art. 3; see text to supra note 11. See also text to infra note 106.
77 See quotation at head of this article.
78 It is perhaps of interest that no similar complaints were made when the Tanzanian High Commissioner in Ottawa summoned a news conference to explain the attitude of his country and Africa “front-line” states on Namibia and called upon Canada to use its influence to secure a settlement; Globe and Mail (Toronto), April 29, 1981.
79 The Times, May 27, June 2, 1981.
79a See supra note 6a.
80 The Times, August 5, 1981.
81 Sunday Express (London), August 9, 1981.
82 See, e.g., incident at Madrid airport when Soviet diplomats sought to embark defecting Russian seamen on a Russia-bound aircraft: The Times, May 18, 1981 and see supra note 74. See also position of P.L.O. envoy to Austria accused of contacts with armed Arabs arrested at Vienna airport, The Times, August 5, 1981.
83 Krajina v. Tass Agency [1949] 2 All E.R. 274.
84 See infra note 100.
85 For change of title of Libyan embassies and diplomats, see infra note 96.
86 The Times, June 13, 1980.
87 Ibid., June 14, 1980.
88 Ibid., September 17, 1980.
89 Ibid., May 8, 1980. See also 74 Am. J. Int’l Law 923–24 (1980).
90 Ibid., June 13, 1980.
91 Satow, op. cit. supra note 2, at 162–63.
92 The Amazone, [1940] p. 40.
93 Art. 14.
94 Satow, op. cit. supra note 2, at 125.
95 At 294.
95a For full discussion, see Grzybokski, , Soviet Public International Law 293–95 (1970).Google Scholar
96 74 Am. J. Int’l Law 922 (1980).
97 Ibid.
98 The Times, May 7, 9, 1981.
99 Vienna, Art. 4.
100 4 Moore, Digest 480–84.
101 Art. 11 (2).
102 Denza, Diplomatic Law 47–50 (1976).
103 The Times, April 10, 1968.
104 Ibid., January 26, 1970.
105 See, e.g., accusation that Iraq diplomats in Vienna were instigating violent attacks against the Iranian Embassy, ibid., August 4, 1980; and ibid., September 16, 1980, re deportation of Iraq diplomats from German Federal Republic for planning bomb attacks against Kurdish students.
106 Address to the International Diplomatic Academy, ibid., June 18, 1964, italics added.
107 Bismarck in conversation with Meyer von Waldeck, August 11, 1867, New York Times, August 11, 1957.
108 Chou En-Lai to Edgar Snow, Saturday Evening Post, March 37, 1954.
109 Stalin, , quoted in Report of Committee on Un-American Activities, May 29, 1956, at 33.Google Scholar