Farani N. C. Irsan

International Undergraduate Program Faculty of Law Universitas Airlangga

In diplomatic relations, the receiving State must not violate the inviolability of diplomatic premises as set down in Article 22 of the Vienna Convention of Diplomatic Relations (‘VCDR’). This obligation is twofold: first, the receiving State must prevent its agents from entering the premises for any official purpose,[1] and second, it must take all appropriate steps to protect the premises from invasion or damage, and to prevent the disturbance of the peace of the mission or its degradation.[2] While this inviolability is rarely disputed, the question of what requisite a property to acquire the status of premises of the mission was recently debated, as can be seen from the Equatorial Guinea v France case.[3]

In the case of Equatorial Guinea v France, the former claimed that France has violated its duty under the VCDR when it conducted investigative searches in the building that Equatorial Guinea claimed to be an official residence of its permanent delegate to the UNESCO.[4] France then objected through diplomatic exchanges to the designation of the disputed building as part of the premises of Equatorial Guinea’s diplomatic mission.[5] The International Court of Justice (‘the Court’) decided in favor of France and found that the disputed building had never acquired the status of premises of the mission within the meaning of Article 1(i) VCDR, hence no obligation has been breached under the convention.[6]

To reach this conclusion, the court has introduced the receiving State’s consent or non-objection as a prerequisite for a building to acquire diplomatic status. In other words, if there is an objection by the receiving State to the designation of a building as part of a diplomatic mission premise, then such a building may not be regarded as a diplomatic premise and thus not protected under VCDR.[7] Three requirements need to be fulfilled for an objection to be successful, they are: the objection lodged must respect the timeliness requirement, the objection must be non-arbitrary, and the objection must be non-discriminatory.[8]

The decision of the Court to include consent as a requirement for the designation of a building’s diplomatic status is challenged by many. One of the prominent opponents is Judge ad hoc Kateka, who argued that such a requirement has no basis in the convention.[9] While consent is required for the establishment of diplomatic relations and permanent diplomatic missions,[10] the convention is silent on such a requirement for the designation of a building’s diplomatic status. The same view was held by Judge Robinson, who further asserted that as long as a building is ‘used for the purposes of the mission’ within the meaning of Article 1(i) VCDR, there is no reason to deny the status of premises of the mission, hence its inviolability, on account of the objection of the receiving State.[11]

It is indeed true that the unilateral imposition of a sending State’s choice of premises may result in the potential arbitrary use of diplomatic privileges and immunities, hence putting the receiving State in a vulnerable position, as the Court so argued.[12] However, it must be noted that the imposition of the consent requirement may also result in other potential abuses by receiving States. For example, the receiving State may use this requirement to object to the designation of the sending State’s premise for the sole purpose of satisfying its political interest; or it may arbitrarily conduct an investigation search in the so-called premises, which is prohibited under the convention,[13] then seek justification using the consent requirement post-investigation.

It was established that the requirement of non-arbitrariness must be fulfilled for an objection to be successful; this can be done, for instance, by proving that such premise is a target in a pending criminal proceeding.[14] While it is undeniable that the VCDR has prohibited the use of diplomatic premises for a commission of a crime,[15] yet the Travaux Préparatoires of the convention has mentioned that the violation of such article does not render the inviolability of the mission premises inoperative.[16] Therefore, being an object of a criminal investigation shall not be the sole consideration for justifying the lodging of such objection.

In conclusion, while the consent requirement may be an effective way to prevent the arbitrary use of diplomatic premises by the sending State, the requirement may potentially be used arbitrarily by receiving State. Therefore, if it is to be implemented, there needs to be a very careful and thorough assessment by the Court, especially when analyzing the non-arbitrariness and non-discriminatory characteristics of the objection lodged by the receiving State.

SOURCES

Vienna Convention on Diplomatic Relations (Adopted 18 April 1961, entered into force 24 April 1964). United Nations, Treaty Series vol. 500, p. 95

Immunities and Criminal Proceedings (Equatorial Guinea v France), Judgement, ICJ Reports [2020]

United Nations, Yearbook International Law Commission [1958] https://shop.un.org/books/yrbk-intl-law-comm-1958-v2-65837, accessed on September 24^th, 2022

[1] Vienna Convention on Diplomatic Relations (Adopted 18 April 1961, entered into force 24 April 1964). United Nations, Treaty Series vol. 500, p. 95.  (‘VCDR’). Art. 22 (1).

[2] Ibid. Art. 22(2).

[3] Immunities and Criminal Proceedings (Equatorial Guinea v France), Judgement, ICJ Reports [2020].

[4] Ibid. §28.

[5] Ibid. §27.

[6] Ibid. §126.

[7] Ibid. §75.  

[8] Ibid. §73.

[9] Equatorial Guinea v France (n 3), Dissenting opinion of Judge ad hoc Kateka.

[10] VCDR (n 1) Art. 2.

[11]Equatorial Guinea v France (n 3), Dissenting opinion of Judge Robinson.

[12] Equatorial Guinea v France (n 3) §67.

[13] VCDR (n 1) Art. 22(3).

[14] Equatorial Guinea v France (n 3) §109.

[15] VCDR (n 1) Art. 41(3).

[16] United Nations, Yearbook International Law Commission [1958] https://shop.un.org/books/yrbk-intl-law-comm-1958-v2-65837, accessed on September 24^th, 2022. P. 104.