MODULE 6 i.
Jurisdictional Immunities: customary
1. Sovereign Immunity - a foreign state and its
representatives are entitled to certain immunities
from the exercise of jurisdiction by other states and a
violation of these immunities will give rise to
international responsibility
2. State, representatives, envoys, international
organizations, its representatives enjoy immunities
from national jurisdiction
3. 3 Kinds of Immunities
a. State Immunity
b. State representatives immunity
c. Immunities accorded to envoys or
diplomatic agents
4. STATE IMMUNITY - must be granted whenever the
circumstances of a case show that a state is entitled
to immunity and it is not necessary for the foreign
state to appear before the court and claim immunity;
only independent and sovereign states can assert
state immunity
a. Absolute State Immunity - a State cannot
compel/require another State to submit to its
jurisdiction (look at the identity of the
defendant)
b. Restrictive Immunity – (look at the subject
matter of the dispute) restriction on the acts
itself of the State in cases of:
i. Jure imperii - act of the State is
public in nature which results to
immunity/government purposes
ii. Jure gestionis - acts is private in
nature/ non-immunity of commercial
interests
5. Private Individual test - if the activity can be
performed by a private individual, it is deemed to be
commercial and thus not immune
6. Purpose test - an activity is deemed to be sovereign
and thus immune if it is performed for
public/governmental purposes
7. Nature test - an activity is commercial and thus not
mine if it is one in which a private individual could
participate
8. Contextual approach - either tests is still
insufficient thus determine primarily from the nature,
but purpose should also be taken into account
9. Exceptions to State Immunity in the UN
Convention (ARTICLE 10-17)
a. commercial transactions
b. employment contracts - national courts grant
extensive immunity to states in relation to
proceedings that concern employment
contracts
c. personal injuries and damage to property -
does not cover cases where there is no
physical damage and which concerns
immovable property (lex rei sitae); only
covers wrongful conduct that has been
committed in the territory of the forum state
where the author of the act or omission is
also present in the forum state
d. In times of armed conflict?
international law requires a state to
be afforded immunity in relation to
jure imperii acts allegedly committed
on the territory of another by its
armed forces and other organs
during the course of armed conflict
e. ownership, possession, and use of property
f. intellectual and industrial property
g. participation in companies or other collective
bodies
h. ships owned or operated by a State
i. arbitration agreement
10. Immunity from enforcement
a. A waiver of immunity from execution must
be expressed separately
b. Absolute and a national court may conclude
that a foreign state is not immune from
proceedings but is immune from any
enforcement measures
11. Immunity from Enforcement jurisdiction -
concerns the administrative and executive powers
by whatever measures or procedures and by
whatever authorities of the forum state; only arises
after the issue of jurisdictional immunity has been
dealt with and decided against granting the foreign
state immunity
12. Immunity from Adjudicative jurisdiction -
jurisdiction of a court to render a judgment in a
matter that involves a foreign state; it means a state
cannot be sued before a foreign court unless it gives
its consent; procedural
13. Jurisdictional Immunities - measures of constraint
taken by the Italian authorities against property
owned by the German state in the absence of
express German consent violated international law
Germany vs Italy: Greece Intervening
1. This case is about the measure of constraints by the
Italian government with respect to Villa Vigoni and
the decision against Germany rendered on the
merits by the Greek courts.
2. So here, Italy was an ally of Germany. They
eventually surrendered to the Allies and declared
war against Germany. At the time, German forces
occupied Italian territories. It committed many crimes
against civilians and soldiers.
3. After the end of the war, Germany enacted several
laws to facilitate the payment of compensation to
these victims. But, many former Italian military
internees did not fall within these laws and could not
get compensation in Germany.
4. So, they brought civil cases against Germany in
Italian Courts to claim compensation.
5. Germany objected to the proceedings on the basis
of jurisdictional immunity before foreign courts.
6. Italian Courts held that “jurisdictional immunity is not
absolute” and that “in cases of crimes under
international law, the jurisdictional immunity of
States should be set aside.”
7. Greek courts also set aside the immunity of
Germany and ordered Germany to pay damages. As
they also
 experienced the atrocities of the Germans.
8. A case was filed before the Greek Courts. Germany
said it is entitled to immunity. That “Greek judicial
decisions could not be recognized within the
German legal order because they have been given
in breach of German’s entitlement of State Immunity”
9. Greek Court said no, because these are violations of
jus cogens norms. The Greek courts issued its
decision against Germany.
10. The Greek courts realized it cannot enforce the
decision, because there is no German Property in
Greece, however, the Greek courts became aware
that in Italy, there is this Villa Vigoni.
11. The Greek claimants then asked Italian courts to
enforce the Greek judgement.
12. The Italian Court did not hear the merits of the claim
of the Greek citizens. The Italian court, here, was
only asked to execute a judgement already rendered
in Greece.
13. The Italian Courts agreed. Then it took measures of
constraints against Villa Vigoni. The property was
freezed then it was attached, subject to the finality of
the proceedings before the ICJ.
14. RULING
15. Immunity from Enforcement: Even if a State
consents to the exercise of jurisdiction, a separate
consent is necessary before a judgment may be
executed against one state.
16. However, there are 3 exceptions to the Immunity
from Enforcement (when subject to execution)
a. The State has expressly consented to the
taking of a measure of constraint.
b. The State has allocated the property in
question for the satisfaction of a judicial
claim.
c. The property in question must be in use for
commercial purposes. If property is used for
commercial functions, and not for
governmental functions, it may be subject to
execution.
17. In this case, Villa Vigoni, is not used for commercial
purposes, it is used as a cultural center and intended
to foster healthy relations between Germany and
Italy, diplomatic-wise, trade-wise and cultural-wise.
18. Strengthening cultural and diplomatic relationships is
actually an exercise of governmental function,
therefore, Villa Vigoni is exempt from execution.
19. Therefore, Italy could not have validly taken
measures against it, and it is not a proper subject of
enforcement jurisdiction.
Whether or not there is conflict between jus cogens
and the rule of the State immunity
1. There is no conflict between rules of jus cogens and
the rule of customary law which requires one State
to accord immunity to another.
2. The two set of rules address different matters.
3. Rules of State immunity are procedural in
character and are confined to determining
whether or not the courts of one State may
exercise jurisdiction in respect of another State.
They do not bear upon the question whether or
not the conduct in respect of which proceedings
are brought was lawful or unlawful.
4. That is why the application of the contemporary law
of State immunity to proceedings concerning events
which occurred in 1943-1945 does not infringe the
principle that law should not be applied
retrospectively to determine matters of legality and
responsibility.
Oleynikov vs Russia
1. Oleynikov lent the Khabarovsk Office of the Trade
Counsellor of the Embassy of the North Korea
$1,500. The money was to be repaid 10 days after.
2. A receipt was given to to the effect that the borrowed
$1,500 be converted into roubles. The debtor to also
pledge a Toyota Camry car. And in case of a failure
to repay within the indicated term, there will be an
interest of 1% for each day delayed.
3. After the Trade Counsellor failed to repay the debt,
the applicant sent several letters of claim which went
unanswered.
4. Oleynikov then wrote to the Russian Ministry of
External Affairs asking for assistance.
5. They replied that the Trade Counsellor was a
constituent unit of the North Korea Embassy and,
therefore, an organ of North Korea which acted on
its behalf.
6. The Trade Counsellor thus enjoyed immunity from
suit and immunity from attachment/execution in
accordance w/ Art 435 of 1964 Code of Civil
Procedure.
7. The Ministry of External Affairs advised that, should
he decide to lodge a claim with a court, he would
have to obtain consent to the examination of the
case from a competent North Korean authority.
8. Oleynikov complained that the Russian courts’
refusal to examine his claim and North Korea’s
failure to give its consent constituted a violation of
his rights guaranteed by Art. 6 of the European
Convention and Art. 1 of Protocol No. 1 to the
Convention.
a. Art. 6 provides: “In the determination of his
civil rights and obligation, everyone is
entitled to a fair hearing by a tribunal”
9. ISSUE: Whether or not the rule on state immunity
from jurisdiction restrict the exercise of the right to
access to court
10. In cases where the application of the rule of State
immunity from jurisdiction restricts the exercise of
the right of access to court, the Court must
ascertain whether the circumstances of the case
justified such a restriction.
11. Such limitation must pursue a legitimate aim of
complying with international law to promote good
relations between States through respect of another
State’s sovereignty.
12. It should therefore be examined whether the
restriction on the applicant’s right of access to court
was proportionate to the aim pursued.
13. As the Court has found before, the ILC’s 1991 Draft
Articles, now in the 2004 Convention, apply under
CIL, even if the State in question has not ratified that
convention, provided it has not opposed it either.
14. For its part, Russia has signed the convention in
December 2006.
15. The Court observes that the Khabarovsk Regional
Court returned the applicant’s claim against North
Korea without examination, having applied the
blanket bar on claims against foreign States in the
Code of Civil Procedure.
16. The Regional Court noted that a “person may only
lodge a claim against a foreign State upon the prior
consent of the State”. They refused to examine the
claim, having applied absolute State immunity from
jurisdiction without any analysis of the underlying
transaction, the applicable provisions of the Annex to
the Treaty on Trade and Navigation between the 2
countries and the applicable principles of CIL.
17. Therefore, by rejecting the claim without
examination of the essence of the dispute and
without giving relevant and sufficient reasons,
and notwithstanding the applicable provisions of
international law, the Russian courts failed to
preserve a reasonable relationship of
proportionality.
18. They thus impaired the very essence of the
applicant’s right of access to court.
 Provisions
1. IMMUNITY OF STATE REPRESENTATIVES - they
‘personify’ the state on whose behalf they act and
because they need protection from national
jurisdiction in order to fulfill their functions
2. A foreign minister can only perform his or her official
functions if the individual can travel freely and
remain in constant communication with not only the
home government but also with diplomatic missions
and representatives of other states
3. Immunity ratione personae – personal immunity
a. Covers highlevel governmental position as
well as by diplomatic agents and by
representatives on ‘special missions’
b. applies to both official and private acts as
well as to acts committed both before and
while the representative occupied the public
position
4. Immunity ratione materiae – functional immunity
a. Covers the functions the representative
performs and is enjoyed by all state
representatives
b. Does not apply to private acts but applies
after the representative leaves his or her
position for public acts committed while in
public service
Underhill vs Hernandez
1. Underhill was a US citizen who had constructed a
waterworks system in Bolivar under a contract with
the government, and also carried on a machinery
repair business.
2. After General Hernandez assumed command of the
city, Underhill applied for a passport to leave the city
but was refused multiple times.
3. When he was finally given a passport and left
Venezuela, Underhill caused an action for recovery
of damages for his detention (refusal to grant the
passport), and for his alleged confinement to his own
house, and for certain alleged assaults and affronts
by the soldiers of Hernandez’s army.
4. The US Circuit Court (NY Eastern District) ruled in
favor of Hernandez.
5. Underhill was not entitled to recover because the
acts of Hernandez were those of a military
commander, representing a de facto government in
the prosecution of a war, and thus, the act of the
government of Venezuela.
6. Such are not properly the subject of adjudication in
the courts of another government.
7. The ruling was echoed by the Court of Appeals.
8. ISSUE: Whether or not the act of Hernandez was an
act of the Government of Venezuela, and thus
immune to adjudication of other States
9. The decision of the Court of Appeals is affirmed.
Every sovereign state is bound to respect the
independence of every other sovereign state, and
the courts of one country will not sit in judgment on
the acts of the government of another done within its
own territory.
10. The immunity necessarily extends to the agents of
governments.
11. There is no doubt that Hernandez was carrying on
military operations in support of the revolutionary
party (Crespo’s party), which later prevailed and was
recognized by the US.
12. Where a civil war prevails, foreign nations do not
assume to judge the merits of the quarrel.
13. If the party seeking to dislodge the existing
government succeeds and is recognized, the acts of
such government, from the commencement of its
existence, are regarded as those of an independent
nation.
 inapplicability of the Convention on Special Missions
in this case.
Djibouti vs France
1. The charred body of Judge Bernard Borrel, a French
Technical Adviser to the Ministry of Justice of
Djibouti, was discovered in Djibouti.
2. The Djibouti investigation concluded that the cause
of Borrel’s death was suicide.
3. However, another investigation was conducted in
France.
4. Alhoumekani, a witness, implicated the now
President of Djibouti in the murder.
5. So, during an official visit by the President of Djibouti
to Paris, an initial request for transmission of the
investigation being conducted to Djiboutian judicial
authorities was made. This was refused by Judge
Clément. Including the subsequent request.
6. Judge Clément continued her investigations.
7. Basically, the French court issued summonses to:
a. The head of state of Djibouti (PRESIDENT)
b. Prosecutor de la republic or (SOLICITOR
GENERAL)
c. The head of national security (SECRETARY
OF NATIONAL DEFENSE)
8. Djibouti considers that France, by sending the
summonses, constituted a violation of immunities
under international law.
9. The witness summons addressed to Djibouti’s Head
of State is, in France’s view, just an invitation. It is
not binding nor enforceable, and cannot infringe the
immunity from criminal jurisdiction or the inviolability
of a Head of State.
10. ISSUE: Whether or not there has been an attack on
the immunity of the president and other officials who
were sent summonses by the French judge
11. There was no attack on the immunity of the Head
of State.
12. It is established that a Head of State enjoys in
particular “full immunity from criminal jurisdiction and
inviolability” which protects him “against any act of
authority of another State which would hinder him in
the performance of his or her duties”.
13. Thus, the determining factor in assessing whether or
not there has been an attack on his immunity lies in
the subjection of the latter to a constraining act of
authority.
14. In this case, the summonses addressed to the
President of Djibouti were not associated with the
measures of constraint provided for by Art. 109 of
the French Code of Criminal Procedure.
15. It was merely an invitation to testify which the Head
of State could freely accept or decline.
16. MOREOVER, there was no attack by France on the
immunities from criminal jurisdiction enjoyed by the
Head of State, since no obligation was placed upon
him in connection with the investigation.
17. HOWEVER, the other Djiboutian officials who
received the summons cannot invoke immunity.
18. There are no grounds in international law upon
which they were entitled to personal immunities, not
being diplomats within the meaning of the Vienna
Convention on Diplomatic Relations, and the
19. SO DIBA, international courts or other states are
supposed to take judicial notice and to automatically
grant state immunity to Heads of States and Minister
of Foreign affairs.
20. But with respect to all other officials by another
state, they are not required to be granted state
immunity.
21. If it is the president or the Minister of Foreign affairs
then it is automatic.
22. However, if the official is not the president or the
minister of foreign affairs the state where they came
from must invoke immunity.
23. So that immunity will not be awarded to them if not
especially invoked.
24. In this case, the Djibouti government did not invoke
the immunity of its SOLGEN and HEAD OF
NATIONAL SECURITY, which is why the French
courts did not violate immunities under international
law by the mere fact of issuing summons.
25. The State which seeks to claim immunity for one
of its State organs is expected to notify the
authorities of the other State concerned. This
would allow the court of the forum State to ensure
that it does not fail to respect any entitlement to
immunity and might thereby engage the
responsibility of that State.
Question: Does the mere fact of issuing summons
actually amount to a violation of immunity? The ICJ
said yes, because there is a violation of immunity, when
a state is subjected to the constraining act of authority by
another state. The mere fact that you issued summons,
you are subjecting him to a constraining act.
Al-Adsani vs UK
1. Al-Adsani, a trained pilot, went to Kuwait to assist in
its defense against Iraq. He served as a member of
the Kuwaiti Air Force.
2. He came into possession of sextapes involving
Sheikh Al-Sabah who is related to the Emir of
Kuwait.
3. These tapes entered general circulation, for which
he was held responsible by the Sheikh.
4. After the Iraqi armed forces were expelled from
Kuwait, the Sheikh took him to the Kuwaiti State
Security Prison where he was falsely imprisoned for
several days and repeatedly beaten by security
guards. He was eventually released and forced to
sign a false confession.
5. The Sheikh took him again to the palace of the Emir
of Kuwait’s brother.
6. He was repeatedly held underwater in a swimming-
pool containing corpses, and he was then dragged
into a room where the Sheikh set fire to mattresses
soaked in petrol, causing him serious burns.
7. He was treated in a Kuwaiti hospital and returned to
England where he was further treated.
8. Al-Adsani instituted civil proceedings in England for
compensation against the Sheikh and the State of
Kuwait in respect of injuries caused by the torture in
Kuwait and threats against his life and wellbeing
made after his return to the UK.
9. He contended that based on principles of
international law, Kuwait should not be afforded
immunity under section 1(1) of the State Immunity
Act 1978 in respect of acts of torture.
10. Also, that UK failed to secure his right not to be
tortured, contrary to Art. 3 of the Convention read in
conjunction with Arts. 1 and 13.
a. Art. 3 provides: “No one shall be subjected
to torture or to inhuman or degrading
treatment or punishment.”
b. Art. 1 provides: “The High Contracting
Parties shall secure to everyone within their
jurisdiction the rights and freedoms defined
in Sec. I of [the] Convention.”
c. Art. 13 provides: “Everyone whose rights
and freedoms as set forth in [the]
Convention are violated shall have an
effective remedy before a national authority
notwithstanding that the violation has been
committed by persons acting in an official
capacity.”
11. UK argued that: (1) the torture took place outside
UK’s jurisdiction, (2) any positive obligation deriving
from Arts. 1 and 3 could extend only to the
prevention of torture, not to the provision of
compensation, and (3) the grant of immunity to
Kuwait was not in any way incompatible with the
obligations under the Convention.
12. ISSUE: Whether or not UK failed to secure the
applicant’s right not to be tortured, contrary to Art. 3
of the European Convention, when it granted
immunity from civil suit to Kuwait
Yes, it’s true under the circumstances you narrated Mr.
Al-Adsani that there is a violation on the prohibition
against torture. That such prohibition is jus cogens norm,
something that should not be derogated. But you must
still lose the case.
Because even in the torture acts were committed and
your human rights violated, State Immunity prevails even
just cogens because state immunity is procedural.
State Immunity does not inquire into whether or not there
was tortuous acts committed. It does not delve into the
merits. It does not concern whether you were tortured or
not. It is a procedural question. It only concerns whether
you can sue them at all.
 prosecution by waiving immunity. A waiver
of immunity must, however, be expressed.
c. 3rd, criminal prosecution before international
Congo vs Belgium courts, where they have jurisdiction.
1. An investigating judge of the Brussels tribunal issued d. 4th, for possible criminal prosecution, the
“an international arrest warrant in absentia” against Court stated that a foreign minister can be
Mr. Abdulaye Yerodia Ndombasi, Congo’s Minister
for Foreign Affairs, charging him with offenses
constituting grave breaches of the Geneva
Conventions and the Additional Protocols, and
crimes against humanity.
2. Congo instituted proceedings before the ICJ,
requesting the Court “to declare that Belgium” shall
annul the international arrest warrant.”
3. After the proceedings were instituted, Mr. Yerodia
ceased to hold office as Minister of Foreign Affairs,
and ceased to hold any ministerial office.
4. Congo claims that Belgium violated the:
a. Principle that a State may not exercise its
authority on the territory of another State
b. Principle of sovereign equality among all UN
members, and the
c. Diplomatic immunity of the Minister of
Foreign Affairs of a sovereign State (as
recognized by the Court and following from
Art. 41(2), of the Vienna Convention.
5. As Mr. Yerodia is no longer either Minister of Foreign
Affairs of the Congo or a minister occupying any
other position, the case is now without object and
the Court decline to proceed to judge the merits of
the case.
6. Immunities accorded to the incumbent Minister for
Foreign Affairs can in no case protect them where
they are suspected of having committed war crimes
or crimes against humanity.
7. ISSUE: Whether, assuming that it had jurisdiction
under international law to issue the arrest warrant,
Belgium in so doing violated the immunities of the
then Minister for Foreign Affairs of the Congo
8. Yerodia was never arrested pursuant to the warrant.
9. However, ICJ said that the mere issuance of an
international warrant directed against an official that
enjoys immunity is actually a violation of
international law even if no state has acted on the
warrant.
10. The purpose of the immunity is actually not to
impede or obstruct the performance of the Ministers
of Foreign Affairs or the heads of state.
11. In this case, the issuance of the warrant actually
obstructed his performance of the functions of
Yerodia. He was apprehensive to travel and attend
international conventions. So, such are actually a
violation of the immunities because at that time, he
was still an incumbent minister of foreign affairs.
12. The Court also stated that criminal prosecution of a
Minister for Foreign Affairs is possible in four
circumstances.
a. 1st, the minister can be criminally prosecuted
by courts in his or her own ‘home state’.
b. 2nd, prosecution in the forum state is
possible if the ‘home state’ agrees to the
 prosecuted after his or her term expires for
acts committed either prior or subsequent to
the period of office or for private acts
committed during the period in office.
DIPLOMATIC IMMUNITIES AND PROTECTION
1. Diplomatic Immunities and Protection
2. Accordingly, the purpose of diplomatic law is not to
benefit the state representative in his or her personal
capacity but the state he or she represents.
3. The purpose of diplomatic law is to strike a balance
between the legitimate concerns of the sending state
and the state in which the representatives and the
diplomatic mission are based.
4. The host state may at any time and without
justification declare that the head of the mission or
any other member of the diplomatic mission is not
welcome on its territory — ‘persona non grata’—in
which event the sending state must recall the person
or terminate his or her functions with the mission.
5. Obligations of the sending state and abuse of
privilege
a. Article 41 of the VCDR explicitly states that
all persons protected by the Convention
must respect the local laws and regulations.
b. If a sending state abuses its rights and
privileges, the VCDR offers the host state a
number of remedies.
i. Remedies in case of Abuse of
Privilege
1. First, under article 9 of the
Convention it can withdraw
its consent in respect of a
member of the mission by
declaring the representative
persona non grata in which
cases the sending state
must recall the individual or
terminate his or her
functions.
2. Secondly, in a particularly
serious case of abuse the
host state may break off
diplomatic relations. (aka.
Sever diplomatic ties)
US vs Iran
1. Before the fall of the reigning Iranian government,
the US Embassy in Tehran was attacked and seized
by an armed group, taking 70 people hostage and
killing 3 embassy staff members. The Embassy as
well as the Ambassador’s residence were pillaged.
2. While Iranian authorities were not able to prevent
this attack, they responded to an urgent appeal for
assistance made by the Embassy and were able to
disperse the armed assailants.
3. After this attack, the US sought the commitment of
Iran to make good their international obligations
under the Vienna Conventions on Diplomatic
Relations and Consular Relations and provide
protection to the US Embassy and its officials.
4. Iran assured the US that they would undertake all
means to ensure their safety and protection.
5. However, the deposed Shah of Iran sought entry into
the US for medical treatment. Iran was assured by
US they would not be met with outrage by Iranian
citizens in giving him entry.
6. Still, the US Embassy was overrun by an armed
group of hundred people. The Tehranian police
disappeared, and nothing was done to remove the
attackers from the premises.
7. Repeated calls were made by the Embassy to the
Iranian Foreign Ministry, but there was no response.
8. US tried multiple times to negotiate with Iran, but this
was met with cold silence.
9. Iran’s de facto leader Khomeini repeatedly declared
that the hostages will be kept under their custody,
and that the Charge d’affaires and his two staff
members will be kept under the Foreign Minister’s
custody until they be tried for crimes against Iran by
an adjudicatory body designated by Iran.
10. US cut off all diplomatic relations with Iran.
11. US argues that Iran has violated and is continuously
violating the Vienna Conventions on Diplomatic
Relations and Consular Relations, as well as the
1955 Treaty between Iran and the US.
a. The receiving State is under a special duty
to take all appropriate steps to protect the
premises of the mission against any
intrusion or damage and to prevent any
disturbance of the peace of the mission or
impairment of its dignity.
12. Iran argues that their actions are justified in light of
the 25 years of oppression and exploitation by
American forces.
13. ISSUE: Whether or not Iran violated the Vienna
Conventions particularly dealing with the immunity of
state representatives, diplomatic officers, and
embassy personnel
14. With regards to the failure of Iran to protect, the
inaction of Iran by itself constituted clear and serious
violation of their obligations to the US (under the
 1961 Vienna Convention on Diplomatic Relations,
and Vienna Convention on Consular Relations)
15. With regards to the 2 US nationals seized as
hostages by the militants, their inaction led to a
breach of Art. II of the 1955 Treaty of Amity,
Economic Relations, and Consular Rights.
16. The publicized intention of Iran to prosecute the
Charge d’affaires and his staff for crimes against
the country runs afoul the Vienna Convention
provision on the immunity of diplomatic officials
from criminal prosecution.
17. It is clear that Iran was fully aware of their
obligations under the Conventions and the Treaty,
and of the urgent need for action on their part to
assist the Embassy during the attack, but had
completely failed to comply with these obligations.
18. On the basis of such, the Court finds Iran to have
incurred responsibility towards the US and is thus
obligated to make reparation for the injury cause to
the US.
 17. Two issues were discussed: the relationship of
general treaty principles and of the concept of self-
defense to the notions of inviolability under the
Convention.
18. The Vienna Convention provides for its own
remedies in case it is violated—the severing of
Abuse of Diplomatic Privileges and Immunities (UK) diplomatic relations in case of a "a fundamental
1. The Libyan People's Bureau in London had taken breach.”
over the Libyan embassy and incurred internal 19. Sir John Freeland said that where the requirements:
upheavals. necessity of self-defense, instant, overwhelming,
2. Both the Foreign Office in London and the British leaving no choice of means and moment for
Ambassador in Tripoli had been warned the day
before that if the demonstration were to be allowed
to go ahead, Libya "would not be responsible for its
consequences." Shots were fired from the Bureau,
and killed Police Constable Fletcher.
3. Libyan authorities were asked to instruct the people
inside the Bureau to leave the building and allow it to
be searched. This was refused.
4. At the British Embassy, British citizens were
unjustifiably arrested and detained.
5. Her Majesty's Government proposed that "as a basis
for terminating relations by agreement" that:
a. Occupants of the Bureau and all other
Libyan diplomatic staff in the country should
have safe conduct out of the country
b. British diplomats will leave Libya safely
c. And all weapons inside the Bureau were to
be removed. All these were refused.
6. Later, a bomb exploded in Heathrow airport injuring
25 people.
7. So the Libyans were notified that diplomatic relations
would terminate at 6PM that day and that all
diplomatic staff and other persons in the Bureau
were to leave by midnight.
8. The Bureau was evacuated. Those leaving were
questioned and electronically searched.
9. Diplomatic bags that left the Bureau were not
searched or scanned.
10. The Bureau was sealed, and was entered by the
British authorities, in the presence of a
representative of the Saudi Arabian Embassy, and
searched
11. A proper interpretation of the Vienna Convention
would support the view that immunity and
inviolability fell away when diplomats and missions
abused their positions; but that if the Vienna
Convention made these desirable outcomes
impossible, then the Convention should be amended
or denounced.
12. RULING
13. Inviolability of the Premises of an Embassy
14. Art. 22(1) of the Convention: the premises of the
mission shall be inviolable. The agents of the
receiving State may not enter them, w/o consent
15. Art. 22(3) of the Convention: the premises of the
mission shall be immune from search, requisition,
attachment or execution.
16. It is clear that inviolability of premises is not lost by
the perpetration of unlawful acts by the sending
state.
 who are reluctant to conform to the requirements of
the Vienna Convention.
35. Above all, those remedies available for abuse in the
Convention—especially the power to limit the size of
the mission, to declare a diplomat persona non grata
—should be used with firmness and vigor, and not
just reserved for matters related to espionage. As is
so often the case, legal means are at hand; but they
need to be matched by political will.

deliberation were met, forcible entry of embassy

premises might be justified in self-defense.
20. Searching of Diplomatic Bags
21. Art. 27(3): the diplomatic bag shall not be opened or
detained.
22. 2 grounds where one does not have to treat as
mandatory the provision stated above:
a. If it does not protect diplomatic materials
b. Abuse by members of the functions
protected under the Convention
23. Since there is no way to ascertain that a bag
contains illicit materials, the Legal Adviser to the
Foreign and Commonwealth Office took the view
that electronic scanning is not unlawful under the
Convention.
24. The UK's decision not to search the diplomatic bags
of the Libyans expelled from the Bureau was
generally assumed by the press and television
reporters at the time to be part and parcel of the
obligations laid upon the UK by the Vienna
Convention.
25. The Legal Adviser to the Foreign and
Commonwealth Office confirmed that the decision
not to search the bags was political and not legal.
26. The committee in its report did not dissent from the
political judgment made.
27. Criminal Offenses and Personal Immunities
28. Art. 29: The person of a diplomatic agent is
inviolable and he may not be arrested or detained.
29. Art. 39: A diplomatic agent is immune from the
criminal jurisdiction of the receiving State, and
immune from the civil and administrative jurisdiction
save in certain specified cases.
30. Art. 37: These privileges and immunities are
extended to the members of his family forming part
of his household, provided that they are not
nationals of the receiving State.
31. All persons enjoying these privileges and immunities
are under a duty to respect the laws and regulations
of the receiving State, and not to interfere in its
internal affairs.
32. In cases concerning offenses against the security of
the state, offending diplomats can be declared
persona non grata.
33. Art. 22: nonetheless places on the receiving state "a
special duty to prevent disturbance of the peace of
the mission or impairment of its dignity.”
34. Governments must keep themselves more fully
informed than they have sometimes appeared to be
in the past, and should not, for the sake of promoting
trade or other reasons, seek to accommodate those