Hostname: page-component-586b7cd67f-rcrh6 Total loading time: 0 Render date: 2024-11-28T09:24:40.783Z Has data issue: false hasContentIssue false
  • English
  • Français

Diplomatic law and unilateral remedies*

Published online by Cambridge University Press:  07 July 2009

L.A.N.M. Barnhoorn
Get access

Extract

Diplomatic law is one of the oldest areas of international law. Long before States could be said to be the subjects of international law, primitive societies felt the need to maintain relations with one another through an envoy. In due course this resulted in the principle of inviolability of the envoy. When permanent diplomatic missions were established in the 15th century, this principle of inviolability was extended to include the residence and household of the envoy. The evolution of diplomatic law since then has closely mirrored the development of international law in general. A striking example is the creation of permanent missions to international organisations since the First World War. The signing of the Vienna Convention on Diplomatic Relations in 1961 and several other conventions in subsequent years marked the climax of this development.

Type
Diversity in Secondary Rules and the Unity of International Law
Information
Netherlands Yearbook of International Law , Volume 25 , December 1994 , pp. 39 - 81
Copyright
Copyright © T.M.C. Asser Press 1994

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1. See infra, section 3.1.

2. Cf., do Nascimento e Silva, G.E., Diplomacy and International Law (1972) pp. 16–30Google Scholar; ibid., ‘Diplomacy’, EPIL, Instalment 9 (1986) pp. 82–85 and, with respect to the comparable evolution of consular law, Lee, L.T., Consular Law and Practice (1991) pp. 3–27.Google Scholar

3. Cf., supra, by Wellens in section 1 of his article.

4. Cf., infra, sections 3.4, 4.1.4 and 4.2.3.

5. This article was concluded on 1 August 1994.

6. Zoller, E., Peacetime Unilateral Remedies: An Analysis of Countermeasures (1984) p. 4Google Scholar. In the title of this article I have deliberately chosen the term ‘unilateral remedies’ instead o f ‘sanctions’, in order not to misguide those readers who are familiar with the discussions on the term ‘sanctions’ in the ILC (see infra, n. 8).

7. 8 ILM (1969) p. 679; Trb. 1972 No. 51. On the difference between these measures and reprisals, cf., Simma, B., ‘Reflections on Article 60 of the Vienna Convention on the Law of Treaties and its Background in General International Law’, 20 Österreichische Zeitschrift für Öffentliches Recht (1970) pp. 19–20 and 29Google Scholar. The Vienna Convention on the Law of Treaties recognises two other grounds for the non-application of treaties, i.e., impossibility of performance (Art. 61) and fundamental change of circumstances (Art. 62). Unlikebreach(Art. 60) they concern grounds arising independently of the will and conduct of the parties; with regard to the treaty and for the parties, they are extraneous grounds (cf., Reuter, P., Introduction to the Law of Treaties (1986) p. 144Google Scholar). According to Reuter they are primary rules, by which he actually means that they are rules not dealing with State responsibility i.e., ILC secondary rules (ibid. p. 145). They will be disregarded in the remainder of this article.

8. Cf., Malanczuk, P., ‘Zur Repressalie im Entwurf der International Law Commission zur Staatenverantwortlichkeit’, 45 ZaöRV (1985) p. 311Google Scholar. The term also included ‘measures applied on the basis of a decision taken by an international organization following a breach of an international obligation.’ Ibid. p. 306. The ILC preferred to reserve the term ‘sanction’ for this category. Malanczuk, , ‘Countermeasures and Self-Defence as Circumstances Precluding Wrongfulness in the International Law Commission's Draft Articles on State Responsibility’, 43 ZaöRV (1983) p. 718Google Scholar. It seems that Arangio-Ruiz only wants to use the term ‘sanctions’ for the measures taken by international bodies themselves, see UN Doc. A/CN.4/440, pp. 7–8, para. 15 and UN Doc. A/47/10, p. 50, para. 149.

9. Cf., Art. 8 of Part Two of the Draft on State Responsibility:

‘Subject to Articles 11 to 13, the injured State is entitled, by way of reciprocity, to suspend the performance of its obligations towards the State which has committed an internationally wrongful act, if such obligations correspond to, or are directly connected with, the obligation breached.’ Reprisals were defined by Riphagen in Art. 9 as follows:

‘(1). Subject to Articles 10 to 13, the injured State is entitled, by way of reprisal, to suspend the performance of its other obligations towards the State which has committed the internationally wrongful act. (2). The exercise of this right by the injured State shall not, in its effects, be manifestly disproportional to the seriousness of the internationally wrongful act committed.’

Printed in ILC Yearbook 1984 Vol. II Part 1, p. 2; the texts are also printed in ZaöRV (1985) pp. 357–371 and 16 NYIL (1985) pp. 278–290.

10. Cf., UN Doc. A/CN.4/440 pp. 14–15 and p. 17, para. 35. In his follow-up study on the instrumental consequences of an internationally wrongful act, Arangio-Ruizdefines countermeasures as: reprisals, reciprocity measures and suspension and termination of treaties (UN Doc. A/CN.4/440 p. 17, para. 36).

11. Cf., Simma, loc. cit. n. 7, at p. 12.

12. Zemanek, K., ‘The Unilateral Enforcement of International Obligations’, 47 ZaöRV (1987) p. 35.Google Scholar

13. Malanczuk, ‘Countermeasures’, loc. cit. n. 8, at pp. 720–721.

14. Malanczuk, ‘Countermeasures’, loc. cit. n. 8, at p. 717.

15. Zemanek, loc. cit. n. 12, at pp. 35–36. On this see also Arangio-Ruiz in UN Doc. A/CN.4/440 p. 23, para. 45 and UN Doc. A/CN.4/444 pp. 2–5.

16. 500 UNTS p. 95; Trb. 1962 No. 101.

17. Denza, E., Diplomatic Law. Commentary on the Vienna Convention on Diplomatic Relations (1976) p. 1.Google Scholar

18. 596 UNTS p. 261; Trb. 1965 No. 40.

19. Lee, op. cit. n. 2, at p. 26; Economidès, C., ‘Consular Treaties’, EPIL, Instalment 9 (1986) p. 39Google Scholar, 1st col., see also infra, n. 63.

20. YUN (1969) p. 750.

21. 68 AJIL (1974) p. 730; UN Doc. A/CONF. 67/16.

22. Cf., Ipsen, K., Völkerrecht (1990) pp. 471 and 478.Google Scholar

23. Pursuant to Art. IV of the Convention on Privileges and Immunities of the UN (1 UNTS p. 15, Stb. 1949 No. J 67) and Art. V of the 1947 UN-USA Headquarters Agreement (11 UNTS p. 11). With regard to observer missions, see infra, n. 78.

24. Cf., Ipsen, op. cit. n. 22, at p. 478. See also Geesteranus, G.W. Maas, ‘The Netherlands and the Status of Diplomatic, Consular and International Officials’, in International Law in the Netherlands, Vol. III (1980) pp. 266–267.Google Scholar

25. Reference should also be made in this connection to the draft on the diplomatic courier and diplomatic bag, which was concluded by the ILC in 1989 and contains a further elaboration as regards these two aspects of the material contained in the four Conventions mentioned above (ILC Yearbook 1989 Vol. II Part 2, p. 8).

26. Convention of 1961: Art. 22; Convention of 1963: Art. 31; Convention of 1969: Art. 25; Convention of 1975: Arts. 23 and 70; Draft Convention of 1989: Art. 17.

27. Convention of 1961: Art. 24; Convention of 1963: Art. 32; Convention of 1969: Art. 26; Convention of 1975: Arts. 25 and 55.

28. Convention of 1961: Art. 27; Convention of 1963: Art. 35; Convention of 1969: Art. 28; Convention of 1975: Arts. 27 and 57; Draft Convention of 1989: Art. 28.

29. Convention of 1961: Art. 29; Convention of 1963: Art. 41; Convention of 1969: Art. 29; Convention of 1975: Arts. 28 and 58; Draft Convention of 1989: Art. 16.

30. Convention of 1961: Art. 31; Convention of 1963: Art. 43; Convention of 1969: Art. 31; Convention of 1975: Arts. 30 and 60; Draft Convention of 1989: Art. 18.

31. Cf., Herdegen, M., ‘The Abuse of Diplomatic Privileges and Countermeasures not Covered by the Vienna Convention on Diplomatic Relations’, 46 ZaöRV (1986) p. 741.Google Scholar

32. Convention of 1961: Art. 41; Convention of 1963: Art. 55; Convention of 1969: Art. 47; Convention of 1975: Art. 77.

33. ILC Yearbook 1958 Vol. II, p. 104, paras. 1 and 4.

34. ILC Yearbook 1961 Vol. II, p. 124, para. 3; ILC Yearbook 1971 Vol. II Part 1, p. 327, para. 6.

35. ILC Yearbook 1958 Vol. II, p. 97; ILC Yearbook 1989 Vol. II Part 2, p. 27.

36. Draft Convention of 1989: Art. 17(b).

37. Convention of 1975: Art. 77(2).

38. Convention of 1975: Art. 77(4).

39. Cf., also the commentaries of the ILC in: ILC Yearbook 1958 Vol. II, p. 91; ILC Yearbook 1961 Vol. II, pp. 106–107; ILC Yearbook 1967 Vol. II, p. 353.

40. ILC Yearbook 1989 Vol. II Part 2, p. 24.

41. Denza, op. cit. n. 17, at pp. 40–43.

42. Convention of 1961: Arts. 39 and 45; Convention of 1963: Art. 53; Convention of 1969: Arts. 45–46; Convention of 1975: Arts. 40–41 and 68–70. As regards the closure of diplomatic missions and the breaking off of diplomatic relations, cf., Denza, op. cit. n. 17, at pp. 278–281 and Lord, Gore-Booth, ed., Satow's Guide to Diplomatic Practice (1979) pp. 174–191.Google Scholar

43. Cf., Riphagen in ILC Yearbook 1983 Vol. II Part 1, p. 21, para. 110:

‘While the functions of a diplomatic mission comprise negotiating with the Government of the receiving State and promoting friendly relations, there is no possible legal duty to cooperate in this way. The suspension of diplomatic relations – like the refusal of agrément and the declaration of persona non grata by the receiving State – is not an internationally wrongful act.’

44. UN Doc. A/CN.4/440 pp. 8–10.

45. Convention of 1961: Art. 47(2)(a); Convention of 1963: Art. 72(2)(a); Convention of 1969: Art. 49(2)(a)and Draft Convention of 1989: Art. 6(2)(a). The 1975 Convention prohibits discrimination only in Art. 83. The reciprocity provision was not included as the relevant relationship was between an international organisation and States, not between States (cf., ILC Yearbook 1971 Vol. II Part 1, p. 332).

46. ILC Yearbook 1958 Vol. I, p. 197, para. 44.

47. Ibid., p. 194, para. 12.

48. Denza, op. cit. n. 17, at p. 284. These measures of reciprocity are therefore of a different nature from those referred to by Riphagen in Art. 8 of Part Two (see supra, section 2). There the measures involved an act in breach of international law taken as a reaction to a wrongful act.

49. ILC Yearbook 1958 Vol. I, p. 196, para. 28. See also Denza, op. cit. n. 17, at p. 284.

50. ILC Yearbook 1958 Vol. II, p. 105. This text is literally repeated in the commentary on the identical text of Article 6 of the ILC Draft on the diplomatic courier and diplomatic bag of 1989 (ILC Yearbook 1989 Vol. II Part 2, p. 20).

51. Simma, B., ‘Self-contained Regimes’, 16 NYIL (1985) p. 121CrossRefGoogle Scholar. Also Alland, D., Justiceprivé et ordre juridique international. Etude theorique des contre-mesures en droit international public (1994) p. 297–288Google Scholar and fn. 101. In my opinion wrongfully, contra Salmon, J., Manual de droit diplomatique (1994) p. 54Google Scholar para. 66, p. 358 para. 469 and p. 481 para. 625.

52. Elagab, O.Y., The Legality of Non-Forcible Counter-Measures in International Law (1988) p. 117.Google Scholar

53. Ibid., p. 118.

54. ILC Yearbook 1958 Vol. II, p. 124, para. 3.

55. ICJ Rep. (1980) p. 3 et seq.

56. ICJ Rep. (1980) paras. 10, 35 and 81.

57. Convention of 1961: Art. 22.

58. Convention of 1961: Art. 29.

59. Convention of 1961: Art. 24; Convention of 1963: Art. 32.

60. Convention of 1961: Art. 25; Convention of 1963: Art. 33.

61. Convention of 1961: Art. 26; Convention of 1963: Art. 28.

62. Convention of 1961: Art. 27; Convention of 1963: Art. 35.

63. Convention of 1961: Art. 31(1). The International Court of Justice held that all these provisions formed part of customary international law (para. 62).

64. Cf., Rauschning, D., ‘Verantwortlichkeit der Staten für völkerrechtwichiges Verhalten’, 24 Berichte der Deutschen Gesellschaft für Völkerrecht (1984) (with English summary) p. 24 and n. 52.Google Scholar

65. Ibid., p. 24.

66. ICJ Rep. (1980) p. 43, paras. 93 and 94. Cf., Röling, B.V.A., ‘Aspects of the Case Concerning United States Diplomatic and Consular Staff in Teheran’, 11 NYIL (1980) p. 150CrossRefGoogle Scholar. See also Elagab, op. cit. n. 52, at pp. 169–172.

67. Cameron, I., ‘First Report of the Foreign Affairs Committee of the House of Commons’, ICLQ (1985) p. 610.Google Scholar

68. Ibid., p. 612.

69. Ibid., p. 613.

70. Tanja, G.J., ‘Diplomatieke missies: sancti habentus legati’, NJB (1990) p. 1337.Google Scholar

71. Cameron reports the discovery of 300 submachine guns, 40 grenades and 60,000 rounds of ammunition, op. cit. n. 67, p. 612 fn. 11. He is quoting in this connection from Keesing's Contemporary Archives (1973) p. 25, 893.Google Scholar

72. Denza, op. cit. n. 17, p. 84. See also SirJennings, Robert and SirWatts, Arthur, eds., Oppenheim's International Law (1992) Vol. I, p. 1080Google Scholar, fn. 30. Mention is made there of a comparable case in which in August 1980 Iraqi officials entered the premises of the Syrian embassy in Baghdad, where they discovered a large quantity of arms. The staff of the Embassy were then required to leave within 48 hours. Finally, Murty, who also mentions the Pakistani case, reports the existence of a similar case which occurred in Cairo. In 1978 the Egyptian police, acting on the orders of the President of Egypt, entered the Bulgarian Embassy in Cairo, arrested a worker there who was not entitled to immunity, and seized some arms. The raid was a sequel to the servants beating up some women who were staying in a part of the legation building as tenants and had refused to vacate for a long time after the Embassy purchased the building. While the beating was going on, the women called for help, and when a crowd gathered at the Embassy, the people in the Embassy fired into the air. Bulgaria recalled her ambassador and expelled the Egyptian Embassy staff from Sofia. Egypt severed diplomatic relations. Murty, B.S., The International Law of Diplomacy. The Diplomatic Instrument and World Public Order (1989) p. 377, fn. 121.Google Scholar

73. Tanja, loc. cit. n. 70, at p. 1337.

74. UN Doc. A/CN.4/444, Add. 1, p. 28, para. 85.

75. Ko Swan, Sik, ‘The Establishment of Diplomatic Relations and the Scope of Diplomatic Immunity: the Dutch Experience with China’, in Cohen, J. A., ed., China's Practice of International Law: Some Case Studies (1972) pp. 69–71.Google Scholar

76. Sicilianos, L.-A., Les réactions décentralisées à l'illicite (1990) p. 345Google Scholar. See also Ko Swan Sik, loc. cit. n. 75, pp. 82–84.

77. Ko Swan Sik, loc. cit. n. 75, at pp. 72–73. See also Maas Geesteranus, loc. cit. n. 24, at p. 345.

78. Sicilianos, op. cit. n. 76, at p. 345. See also Arangio-Ruiz, UN Doc. A/CN.4/444 add. 1 p. 28, para. 85 and SCOR, 22nd year, Suppl. for July, August and September (1967) p. 189. Another example worth mentioning, in which the Secretary-General and later the General Assembly deemed a given act to be contrary to Art. IV, sections 11–13, of the UN-USA Headquarters Agreement, was the proposed closure by the US Government in 1988, as a consequence of the entry into force of the Anti-Terrorism Act of 1987, of the office of the Observer Mission of the Palestine Liberation Organisation in New York. After much legal action (cf., 27 ILM (1988) pp. 712–834 and 82 AJIL (1988) pp. 103–106 and 833–837), the USA eventually decided not to close the mission, because such action would violate the US obligations as the host country under the UN Headquarters Agreement (27 ILA (1988) p. 1704). Although the US action was a reaction to the terrorism committed and supported by individuals and organisations affiliated to the PLO (82 AJIL (1988) p. 103), the USA did not try to legitimate its actions by raising the defence of a right of sanction. This case is therefore of less relevance to our study.

79. Cf., Sicilianos, op. cit. n. 76, at p. 351.

80. For the difference, cf., Lord Gore-Booth, op. cit. n. 42, at p. 120, para. 15.1. and p. 135 para. 16.1.

81. This is also evident from the Chinese Welding Engineers and Libyan Bureau Shooting cases. On p. 162, fn. 18, Cameron refers to a comparable case relating to an incident in France in 1978 when an Iraqi diplomat shot and killed a French police officer and was deported rather than prosecuted. In practice, however, it regularly happens that an official persona non grata declaration can be dispensed with and that a ‘request for recall’ will be honoured, cf., Lord Gore-Booth, op. cit. n. 42, at p. 179.

82. Cf., Elagab, op. cit. n. 52, at p. 118.

83. Cf., also Röling, loc. cit. n. 66, at p. 147 and Dominicé, Ch., ‘Représailles et droit diplomatiques’, in Recht als Prozess und Gefüge, Festschrift für Hans Huber zum 80. Geburtstag (1981) p. 551.Google Scholar

84. Sicilianos, op. cit. n. 76, at pp. 344–345; Röling, loc. cit. n. 66, at p. 147; Oppenheim, L., International Law, Vol. II, 7th edn. (1952) p. 140Google Scholar; Ko Swan Sik, loc. cit. n. 75, at p. 83.

85. As regards this argument, cf., infra, section 3.4.3.

86. Dominicé, loc. cit. n. 83, p. 551.

87. Gill, T.D., ‘The Forcible Protection, Affirmation and Exercise of Rights by States under Contemporary International Law’, 23 NYIL (1992) p. 121.CrossRefGoogle Scholar

88. Ipsen, op. cit. n. 22, at pp. 449–450; Dominicé, loc. cit. n. 83, at p. 549 and fn. 29. Brown here refers to a general principle of self-preservation or prevention of crime and considers this principle as one of the general principles of law, recognized by civilised nations, Brown, J., ‘Diplomatic Immunity: State Practice under the Vienna Convention on Diplomatic Relations’, 37 ICLQ (1988) pp. 86–87CrossRefGoogle Scholar. Salmon, op. cit. n. 51, at p. 294, rather sees this as an application of the necessity principle, discussed infra.

89. Ipsen, op. cit. n. 22, at p. 450.

90. It is questionable whether the building may be entered even after diplomatic relations are broken off. Cf., Cameron, loc. cit. n. 67, at p. 614.

91. Ibid., loc. cit. n. 67, at p. 612.

92. Ibid., p. 612. Cameron also refers to a comparable situation which occurred when US troops searched Cuban diplomats and diplomatic bags in Grenada in December 1983, ibid., fn. 19.

93. Harris seems to indicate that it concerned a right under national criminal law. Harris, P.J., Cases and Materials on International Law (1991) p. 331 n. 23.Google Scholar

94. Cf., Report of the Foreign Affairs Committee, paras. 93–95, quoted by Cameron, loc. cit. n. 67, at p. 618. When acting as Rapporteur in the debate on this subject in the ILC in 1957, François spoke of a right of self-defence based on universally recognized principles of law (ILC Yearbook 1957 Vol I, p. 58, paras. 9–10). However, the chairman denied this (ibid., p. 60, paras. 37–38).

95. Herdegen, loc. cit. n. 31, at p. 754. See also Beaumont, J.S., ‘Self-Defence as a Justification for Disregarding Diplomatic Immunity’, 24 CYIL (1991) pp. 398–399.Google Scholar

96. Herdegen, loc. cit. n. 31, p.751. On this, see also the debate in Malanczuk, loc. cit. n. 8, at pp. 757–759.

97. Herdegen, loc. cit. n. 31, at p. 752 and fn. 85.

98. Cf., UN Doc. A/CN.4/440 p. 6, para. 11 and UN Doc. A./47/10 p. 49, para. 146.

99. Higgins, R., ‘The Abuse of Diplomatic Privileges and Immunities: Recent United Kingdom Experience’, 79 AJIL (1985) p. 647CrossRefGoogle Scholar; Malanczuk, loc. cit. n. 8, at p. 759. See also Bryde, B.-O., ‘Self-Defence’, EPIL, Instalment 4 (1982) p. 214Google Scholar and Gill, loc. cit. n. 87, at pp. 115–116.

100. As suggested by Denza in relation to the case in which the Pakistan police entered the Embassy of Iraq in Islamabad, op. cit. n. 17, at pp. 84 and 268. Murty too considered that the action taken by the Pakistan police was not unlawful. However, he does not explain why. According to him, the raid would have been unlawful if no arms had been found (Murty, op. cit. n. 72, at p. 378 and n. 149). He therefore considers that in special circumstances and after a decision at the highest level it should be possible to breach the diplomatic immunities (ibid., p. 368, fn. 121 and pp. 377–378). In the Libyan Bureau shooting case, the Foreign Affairs Committee directed that self-defence could not be claimed; see Cameron, loc. cit. n. 67, at p. 618. The U.K. Government adopted this position, Cmnd. 9497 p. 29.

101. Herdegen, loc. cit. n. 31, at p. 749;

102. The other circumstances in the Draft that preclude wrongfulness, in particular force majeure and fortuitous event (Art. 31), are not intended to cover cases of the present kind. As regards the meaning of the two terms, cf., Jagota, S.P., ‘State Responsibility: Circumstances Precluding Wrongfulness’, 16 NYIL (1985) pp. 261–264CrossRefGoogle Scholar. For the difference between these two terms and the concepts of distress and necessity see pp. 264–271. Cf., also Ipsen, op. cit. n. 22, at pp. 526–527.

103. Cf., in this respect Zoller, op. cit. n. 6, at p. 27; see also Cahier, Ph., Le droit diplomatique contemporain (1962) p. 225.Google Scholar

104. Cf., commentary on Art. 40, para. 4, ILC Yearbook 1958 Vol. II p. 104. See also Herdegen, loc. cit. n. 31, at p. 744; Higgins, loc. cit. n. 99, at p. 646 and Salmon, op. cit. n. 51, at p. 479, para. 623.

105. It should be noted that the need to exercise the right of self-defence in certain circumstances, as described above by Herdegen, can be met by application of the right to use force in the protection and affirmation of rights, as described by Gill. This constructed right, which lies somewhere between countermeasures and self-defence, is ‘a form of armed action that enables a State which has suffered an unlawful violation of its rights of territorial integrity and inviolability to respond to these violations within the limits imposed by international law’ (Gill, loc. cit. n. 87, at p. 170). In principle this right does not involve the violation of a legal obligation by the reacting State – although clearly the right to take such action … could be exercised in such a way that it resulted in a wrongful act (ibid., p. 122). Gill does not cite the present case as an example. However, he does mention the case of ‘assistance to rebels in the form of the provision of weapons or logistical or other support’, referred to by the International Court of Justice in the Nicaragua case (ibid., p. 130). The case of the raid on the Iraqi Embassy in Islamabad is very similar to this. For the time being, however, it must be concluded that the limitations of diplomatic law do not allow for such use of force. In theory such actions by the receiving State based on a specially declared sanction measure, cf., chapter VII of the UN Charter by the Security Council (see supra, fn. 8), remains one of the possibilities. In practice, however, it seems unlikely that the Security Council would ever sanction such a decision.

106. Cf., the case mentioned by Sicilianos, op. cit. n. 76, on p. 346, of the disconnection by the US authorities of the telephone lines of the Embassies of Poland and Czechoslovakia in Washington in August 1986, after similar action had been taken against the US Embassies in Warsaw and Prague contrary to Art. 27 of the 1961 Convention.

In relation to freedom from taxation, Sicilianos refers on p. 350 to the example of the imposition by the USA, also in August 1986, of local taxes on 66 embassies because the same taxes had been imposed on the US Embassies in the relevant sending States.

As regards the right to leave the country, reference may be made to the Chinese Welding Engineers case. Sicilianos refers on p. 346 to a comparable case involving the French Embassy in Teheran in June 1987.

Salmon also admits that these reprisals take place. He, however, regards this to be illegal: op. cit. n. 51, at p. 481 para. 625. He only considers the retorsions mentioned by the Court in the Teheran Hostages case as a legal sanction. Ibid., p. 479, paras. 623 and 624.

107. Cf., the example mentioned by Yokota of remission of ‘charges levied for specific services rendered’, which Japan applied to embassies in Tokyo. This could be applied to Japanese Embassies elsewhere on the basis of reciprocity (ILC Yearbook 1958 Vol. I p. 196, para. 28).

108. Cf., for example the outcome of the Teheran hostages affair.

109. ICJ Rep. (1980) p. 42, para. 91.

110. Cf., Röling, loc. cit. n. 66, at p. 147 and Elagab, op. cit. n. 52, at pp. 119–120.

111. Jennings and Watts, op. cit. n. 72, at p. 1069, para. 489. For a similar observation, see Higgins, loc. cit. n. 99, at p. 641.

112. Higgins, loc. cit. n. 99, at p. 641.

113. Cf., Franck, T.M., ‘Legitimacy in the International System’, 82 AJIL (1988) p. 716.CrossRefGoogle Scholar

114. Simma, B., ‘Reciprocity’, EPIL, Instalment 7 (1984) pp. 401–402.Google Scholar

115. Elagab, op. cit. n. 52, at p. 121.

116. Cf., ICJ Rep. (1980) p. 41, para. 88.

117. Dominicé, loc. cit. n. 83, at pp. 550–551. Ibid., Alland, op. cit. n. 51, at pp. 276–277.

118. Ibid., p. 551. See infra, section 3.4.4.

119. Ibid., p. 552.

120. Zemanek, loc. cit. n. 12, at p. 39.

121. See Dembinski, L., The Modern Law of Diplomacy. External Missions of States and International Organizations (1988) p. 20.Google Scholar

122. Zemanek, loc. cit. n. 12, at p. 39.

123. Zemanek, K., ‘Responsibility of States: General Principles’, EPIL, Instalment 10 (1987) p. 371, 2nd col.Google Scholar

124. The importance of protecting the personal safety of diplomats was emphasised still further in the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons including Diplomatic Agents of 1973 (1035 UNTS p. 167; Trb. 1981 No. 69).

Although the USA relied on Arts. 4 and 7 of the Convention in the Teheran Hostages case, the International Court did not consider it necessary to consider this further.

125. Sicilianos, op. cit. n. 76, at p. 348.

126. Cf., the South-West Africa case: ICJ Rep. (1966) p. 29, para. 33. See also infra p. 141 in connection with the use of the term by the predecessor of the International Court, namely the Permanent Court of International Justice, in the Wimbledon case.

127. 1985 edition.

128. Elagab, op. cit. n. 52, at p. 119.

129. Zemanek, loc. cit. n. 12, at p. 40.

130. Ibid., p. 40.

131. Ibid. Alland, op. cit. n. 51, at p. 288. Murty too considered that the sanctions permitted by law were not excluded in the event of a violation of diplomatic law (Murty, op. cit. n. 72, at p. 368, fn. 121). However, Dembinski seems to infer from the self-contained argument that every violation of diplomatic law as a sanction is excluded (Dembinski, op. cit. n. 121, p. 20). Salmon too seems to share this opinion, see supra, n. 106.

132. Dominicé, loc. cit. n. 83, at p. 549.

133. Zemanek, loc. cit. n. 12, at p. 40.

134. Simma, loc. cit. n. 51, at p. 135.

135. ICJ Rep. (1980) p. 40, para. 86.

136. See also Elagab, op. cit. n. 52, at p. 119 and Sicilianos, op. cit. n. 76, at p. 350.

137. For examples of cases, cf., Lord Gore-Booth, op. cit. n. 42, at pp. 179 and 186; Ipsen, op. cit. n. 22, at pp. 446 and 449; Denza, op. cit. n. 17, at p. 84.

138. Cf., cases in Lord Gore-Booth, op. cit. n. 42, at p. 179; Ipsen, op. cit. n. 22, at pp. 446 and Beaumont, loc. cit. n. 95, at p. 401.

139. Simma, loc. cit. n. 51, at p. 135.

140. Quite apart from the handicap of the necessity of following the procedure laid down in Arts. 65–68.

141. See the situations described by Herdegen, supra, section 3.3 and cf., what is said above about this in n. 105.

142. ILC Yearbook 1981 Vol. II Part 1, p. 85, para. 51.

143. ILC Yearbook 1976 Vol. II Part 2, p. 80, para. 5.

144. ILC Yearbook 1981 Vol. II Part 1, p. 86, para. 59, see supra section 3.2.1.

145. Simma, loc. cit. n. 51, at p. 117.

146. ILC Yearbook 1982 Vol. I, p. 201, para. 16; ILC Yearbook 1982 Vol. II Part 1, p. 29, para. 47.

147. Simma, loc. cit. n. 51, at p. 115; ILC Yearbook 1982 Vol. I, p. 201, para. 16.

148. ILC Yearbook 1982 Vol. II Part 1, p. 29, para. 47.

149. ILC Yearbook 1983 Vol. II Pan 1, p. 18, para. 97.

150. UN Doc. A/CN.4/380; ILC Yearbook 1984 Vol. II Part 1, p. 1.

151. Art. 2 reads: ‘Without prejudice to the provisions of Articles 4 and 12, the provisions of this part govern the legal consequences of any internationally wrongful act of a State, except where and to the extent that those legal consequences have been determined by other rules of international law relating specifically to the internationally wrongful act in question.’

152. Cf., supra, n. 9.

153. ILC Yearbook 1984 Vol. I, p. 263, para. 28.

154. ILC Yearbook 1983 Vol. II Part 1, p. 17, para. 91.

155. He refers to section 59 of his second report, see supra, n. 144.

156. ILC Yearbook 1983 Vol. I, p. 150, para. 29.

157. ILC Yearbook 1984 Vol. II, p. 103, para. 374.

158. Cf., Munoz (ILC Yearbook 1985 Vol. I, p. 144, para. 28) and Sinclair (ibid., p. 116, para. 7).

159. Flitan, ibid., p. 105, para. 10.

160. Balanda, ibid., p. 114, para. 44 and Yankov, ibid., p. 146, para. 41.

161. Tomuschat, ibid., p. 126, para. 41 and Al-Qaysi, ibid., p. 143, para. 18.

162. Ibid., p. 150, para. 21.

163. Ibid., p. 159, para. 7.

164. ILC Yearbook 1985 Vol. II Part 1, p. 30, para. 54; See also Riphagen, W., ‘State Responsibil ity: New Theories of Obligation in Interstate Relations’, in MacDonald, R. St. J. and Johnston, D. M., eds., The Structure and Process of International Law (1983) p. 599Google Scholar, para. 40 and p. 606, paras. 56–57.

165. Simma, loc. cit. n. 51, at p. 117.

166. Ibid., p. 117.

167. Arangio-Ruiz too evidently proceeded on the same assumption; see UN Doc. A/CN.4/440 p. 46, para. 85.

168. Simma, loc. cit. n. 51, at pp. 120–121.

169. Zemanek also wrongly assumes that self-contained regimes should be distinguished from subsystems. He in fact blames the International Court for having given insufficiently clear criteria for making this distinction (K. Zemanek, loc. cit. n. 123, at p. 371,

170. According to Simma, Riphagen did intend this (Simma, loc. cit. n. 51, at pp. 121–122).

171. But see Simma, loc. cit. n. 51, at p. 120.

172. But see Zemanek, loc. cit. n. 12, at p. 41 and Herdegen, loc. cit. n. 31, at p. 746.

173. Riphagen, loc. cit. n. 164, at p. 606.

174. Ibid., pp. 606–607; Simma, loc. cit. n. 51, at p. 119.

175. Herdegen, loc. cit. n. 31, at p. 746.

176. See supra, section 3.4.1.

177. ILC Yearbook 1984 Vol. II, p. 263, para. 27.

178. Ibid., para. 28. Wrongfully, Alland nevertheless reproaches Riphagen for his obscurity on this differentiation, op. cit. n. 51, p. 277.

179. Ibid., para. 28.

180. Cf., Art. 11(1)(c) of the Draft.

181. UN Doc. A/CN.4/440 Add. 1 of 19 July 1991.

182. Ibid., p. 21, para. 114.

183. UN Doc. A/CN.4/444 Add. 1, p. 27, para. 84.

184. Ibid., p. 28, para. 86.

185. Ibid., p. 29, para. 87.

186. Ibid., p. 34, para. 96; 5 EJIL (1994) pp. 116–117.

187. UN Doc. A/CN.4/444 Add. 1, p. 29, para. 87.

188. Ibid., p. 28, para. 86.

189. Ibid., p. 46, paras. 87–88.

190. UN Doc. A/47/10 p. 90, para. 259.

191. UN Doc. A/CN.4/444/Add. 1, p. 29, para. 88.

192. UN Doc. A/47/10 p. 80, paras. 236–238.

193. Ibid., p. 81, para. 239. In his reply, Arangio-Ruiz confirmed that ‘it must remain possible to sever diplomatic relations by way of countermeasures.’ This shows that those taking part in the discussions were not precisely aware of what they were talking about. Severance of diplomatic relations is a retorsion, not a countermeasure.

194. UN Doc. A/CN.4/L 480; 5 EJIL (1994) p. 119.

195. UN Doc. A/48/10 p. 80, para. 204. See also Rosenstock, R., ‘The Forty-Fifth Session of the International Law Commission’, 88 AJIL (1994) pp. 135–136.CrossRefGoogle Scholar

196. In this solution, the text of the provision could for example be analogous to the wording used for the other exceptions in Art. 14, namely (ii) ‘is not in conformity with the rules of international law on diplomatic or consular law’.