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Home Diplomatic Immunity An Exam Question on Diplomatic and Consular Law

An Exam Question on Diplomatic and Consular Law

Published on October 7, 2018        Author: 
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Kemal, a journalist and a national of the state of Azovia, is living in the state of Tiberia. One day he goes to the Azovian consulate in Kostantiniyye, a major Tiberian city, in order to obtain a divorce certificate, which he needs to marry his current fiancee. Kemal never emerges from the consulate. A few days later, Tiberian authorities publicly claim that Kemal was murdered by Azovian agents while he was in the consulate. The Azovian government denies these allegations. Assuming that the facts asserted by Tiberia are true, answer the following questions (in doing so, bear in mind that Azovia and Tiberia are both parties to the Vienna Convention on Consular Relations and the Vienna Convention on Diplomatic Relations; Tiberia is additionally a party to the International Covenant on Civil and Political Rights, which Azovia is not):

(1) Is Azovia responsible for an internationally wrongful act or acts, and if so, which one?

(2) If Tiberia had obtained reliable intelligence that Kemal was about to be murdered in the Azovian consulate in Kostantiniyye, would it have been (i) obliged to or (ii) permitted under international law to forcibly enter the premises of the consulate in order to save Kemal’s life?

(3) Would your answer to question (2) be any different if Kemal was murdered/about to be murdered in the Azovian embassy to Tiberia, rather than in its consulate?

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5 Responses

  1. Luis Jardon

    1) Yes. Azovia would had breached Art 41 of VCDR which elevates breaches of domestic law to international wrongful acts. (Eg. Comitting murder would entail to not respecting the laws and regulations of the receiving State).

    2) There would not be an obligation to enter ther premises, but one of preventing the crime. However, consular premises’ inviolability is functional under Article 31 VCCR. Thus Tiberian authorithies could have entered arguing the murder was or could have been committed in a section of the consular post not “used exclusively for the purpose of the work of the consular post.”

    3) Yes. Unlike consular premises, Art 22 of the VCDR provides for the absolute inviolability of diplomatic premises.

  2. A joinder on the answer to the question no. 2, seems to have been given by the ICJ United States Diplomatic and Consular Staff in Tehran (USA v Iran), para 86,

    “Naturally, the observance of this principle [inviolability of diplomatic and by implication, consular premises] does not mean – and this the Applicant Government expressly acknowledges – that a diplomatic agent caught in the act of committing an assault or other offence may not, on occasion, be briefly arrested by the police of the receiving State in order to prevent the commission of the particular crime.”
    I would read the above para as permission, not an obligation.

  3. As a student of the Course on the Law of Treaties, taught by Professor Pablo Rosales, of the National University of San Marcos, I would like to answer the issues raised in his post:

    1) Yes, the States are responsible for the following internationally wrongful acts:

    In the first place, Azovia has violated the right to life, which is a norm of human rights of ius cogens character. It should be noted that the Inter-American Court of Human Rights (IACtHR) has indicated in its jurisprudence, both contentious and consultative, that several norms for the protection of human rights have the character of ius cogens, including the right of life. Furthermore, Azovia, regardless of being a member state or not of the United Nations (UN), has the obligation to act in accordance with the principles of the Charter. The right to life is a norm of ius cogens clearly opposable to non-member states. This aspect is mentioned because Azovia is not part of the International Covenant on Civil and Political Rights (ICCPR).

    Second, Azovia has violated article 55 of the Vienna Convention on Consular Relations (VCCR) because it states in its paragraph 1: “Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of the State.” And in its paragraph 2, the article 55 indicates that “[t]he consular premises shall not be used in any manner incompatible with the exercise of consular functions.”

    (2) Tiberia, being a party to the ICCPR, undertook to respect and guarantee all individuals who are in its territory and subject to its jurisdiction the rights recognized in that treaty, “without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status” (Article 2, paragraph 1). The right to life is inherent to the human being and, for this reason, no one can be deprived of the life arbitrary. This right shall be protected by law. Therefore, I consider that Tiberia is bound by International Law to save Kemal’s life; since the physical premise of the consulate is considered proper to the receiving State, Tiberia. Also, because of what was mentioned earlier in the article 55, paragraph 2 of the VCCR, the Tiberian authorities could have entered; since they had reliable information about a murder, which clearly is a use incompatible with its consular functions.

    (3) Not, because article 22 of the Vienna Convention on Diplomatic Relations (VCDR) states that the premises of the mission are inviolable and that the agents of the receiving State cannot enter them without the consent of the head of the mission. It also proclaims that the receiving State has a special obligation to take all appropriate measures to protect the premises of the mission against any intrusion or damage and to avoid disturbing the tranquility of the mission or undermining its dignity. This norm can be interpreted as much as external and internal actions that disturb tranquility. In addition, by interpreting the object and purpose of the VCDR, the sovereign equality of States, the maintenance of international peace and security, and the promotion of friendly relations among nations must be respected. It is also stated that the rules of customary international law must continue to govern issues that have not been expressly regulated in the provisions of the Convention. On this basis, it is possible to say that Tiberia and Azovia must respect the right to life by its customary nature. It must be reiterated that this is a human right, whose protection is a norm of ius cogens. It is for this reason that we can insist that Tiberia would be obliged to protect Kemal’s life by entering the embassy of Azovia.

    Tatiana Espinoza

  4. Luz Ana Cabrera Fernández

    As a student of the Course on the Law of Treaties (taught by Professor Pablo Rosales), of the National University of San Marcos, I would like to answer the issues raised in his post:

    1. Yes, because Article 55, paragraph 1, of the Viena Convention on the Consular Relations (VCCR), establishes that “[w]ithout prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State (…)”. This norm means that the violation of norms at domestic level may be sanctioned internationally. The fact that Kemal was killed by Azovian agents while he stayed in the consulate constitutes a violation of the domestic law of Tiberia. Since as a party of the International Covenant on Civil and Political Rights (ICCPR), Tiberia has adapted its internal legal system to these conventional obligations, which included article 6 that states “[e]very human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.”

    2. According to article 31, paragraph 2, of the VCCR, “[t]he authorities of the receiving State shall not enter that part of the consular premises which is used exclusively for the purpose of the work of the consular post (…)”. The murder of Kemal, obviously, does not constitute a consular office work; so, under that parameter, intervention by the receiving State should be allowed. In addition, considering the ICCPR, I believe that this kind of treaty generates an obligation of “guarantee / prevention” of their States Parties that would prevail over the inviolability of the consular premises, in the sense that if the sending State and the receiving State find out that Kemal is going to be killed and do nothing to avoid it, Tiberia could be internationally responsible for not fulfilling their duties of prevention.

    3. The Article 22, paragraph 1, of the Vienna Convention on Diplomatic Relations (VCDR) states “[t]he 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”. Consequently, this norm is more restricted than the regulation of the article 31 of the VCCR because the article 22, paragraph 1 of VCCR, does not presents the phrase “which is used exclusively for the purpose of the work of the consular post”. The first appears as an absolute regime of inviolability and the second, as a functional regime. The receiving State would have to respond to Azovia for having affected the absolute inviolability of its embassy. Entering to the premise to protect the life of Kemal can be a legitimate measure, but finally it is contrary to international law.

    Luz Ana Cabrera