The attack on Saudi Arabia’s embassy in Tehran by a mob on Sunday breached an international convention that Iran assented to.
When a mob stormed and set fire to the embassy of Saudi Arabia in Tehran on Sunday, they broke not just with centuries of established diplomatic protocol, but also with an international convention signed and accepted by Iran.
The outrage expressed by the United Nations Security Council on Monday was a reflection felt by the international community of an assault on what is one of the most crucial institutions for ensuring peace between governments.
For at least 800 years, ambassadors have been dispatched as representatives of their country or rulers. Their role – and critically, the rights and protection they are given – have been codified for about two centuries, in particular at the Congress of Vienna in 1815 that followed the end of the Napoleonic wars.
Today’s embassies and diplomatic staff are protected by another meeting in Vienna, the Austrian capital, more than 50 years ago.
UN member states agreed to a comprehensive code of conduct for ambassadors and their hosts, resulting in the Vienna Convention on Diplomatic Relations of 1961, which took effect in 1964.
Yet the exact provisions of the treaty are often misunderstood, particularly with terms such as diplomatic immunity and extraterritorial jurisdiction, which in layman’s language are often interpreted as meaning that diplomatic staff are above the law and embassies being part of the territory of the country they are representing.
Below we examine some of the treaty’s crucial provisions and misunderstandings about embassies, and how the accord has been used and abused in the past six decades.
Are embassies part of the territory of the country they represent?
A common misconception. Embassy buildings remain part of the host country, even if the land they stand on is privately owned. This is even the case with the headquarters of the United Nations, which was built in New York on land bought by the Rockerfeller family but remains United States territory.
The notion of extraterritorial jurisdiction applies to diplomatic staff who are citizens of the country they represent and also to the embassy itself, and which means that the host country cannot enter the building or enforce its own laws.
The 1961 convention is very precise about this. Article 22 states: “The premises of the mission shall be inviolable. The agents of the receiving state [the host] may not enter them, except with the consent of the head of the mission.”
The same clause places the host country “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”.
Finally, the same article states that “the premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution”.
The failure of the Iranian government to protect the Saudi embassy from mob violence was a clear breach of Article 22.
Even worse was the storming of the United States embassy after the Iranian revolution in 1979 and the taking of 52 diplomatic staff and American citizens as hostages for 444 days.
This last act was probably also a violation of Article 44 of the UN convention, which states that even in times of conflict, the host nation must allow diplomats and their families “to leave at the earliest possible moment. It must, in particular, in case of need, place at their disposal the necessary means of transport for themselves and their property”.
Article 45 covers the breaking of diplomatic relations, requiring the host country to “even in case of armed conflict, respect and protect the premises of the mission, together with its property and archives”.
After storming the US embassy in 1979, Iran handed over all documents to its intelligence services and used the building as a training centre for the Revolutionary Guard.
Do embassy staff have complete immunity from the laws of their host country?
UN rules are very clear about this, stating that “the person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention”.
Many diplomats have found themselves on the wrong side of local laws down the years, including everything from shoplifting to sexual assault. More often it is unpaid parking tickets. In congested cities such as London and New York, cars with diplomatic plates are notorious for racking up millions of dirhams in fines that cannot legally be collected.
Much more serious was an incident in London in 1984, when a British policewoman, Yvonne Fletcher, was murdered during a protest outside the Libyan embassy. It was later determined that the fatal shots had come from inside the embassy. While Britain severed diplomatic ties with Libya, it proved impossible to bring any member of the embassy staff to justice.
That does not mean that ambassadors and their staff are above the law. In many cases, those who break local laws are sent home in disgrace, although in more serious cases, ambassadors have the right to lift diplomatic immunity from their staff.
The UN convention also excludes certain categories of civil law from diplomatic immunity if they involved the embassy staff in a private capacity.
These include some commercial activities, property transactions and legal disputes involving an inheritance.
Incidentally, ambassadors and their staff are also exempt from local taxes.
What is the diplomatic bag? How much can it hold?
The diplomatic bag refers to any consignment between a country and its embassy if it is labelled as such.
It is intended to apply to “only diplomatic documents or articles intended for official use” rather than supplies of Ferrero Rocher chocolates for the ambassador’s parties, as suggested in the famous British television advertisements of the 1990s.
There is plenty of evidence, however, of real abuses of the diplomatic bag. For instance, Winston Churchill used it to import Cuban cigars during the Second World War, and a failed attempt by the Argentinian government to send limpet mines in the diplomatic bag to their embassy in Spain to sink British warships in Gibraltar during the Falklands War in 1982.
An attempt to kidnap a former Nigerian minister in London so he could be put on trial back home was thwarted because the shipping crate he was held in was not properly labelled as a diplomatic consignment.
In general, though, the absolute rule is that “the diplomatic bag shall not be opened or detained” unless “there are serious grounds” for assuming it contains items not covered by the convention.
Does this mean that countries have no control over embassies or diplomatic staff on their own territory?
Quite the contrary. The Vienna Convention on Diplomatic Relations gives host countries many rights to control diplomats in their territory.
Article 9 states that the hosts “may at any time and without having to explain its decision, notify the sending State that the head of the mission or any member of the diplomatic staff of the mission is persona non grata or that any other member of the staff of the mission is not acceptable”. In practice this means that any diplomat can be expelled or prevented from taking up a post without any explanation.
In the most sensitive postings – such as military attaches – a country has to submit the names of diplomats it wishes to send to the host country for vetting.
Governments may also limit the number of diplomats in their country to what is considered “reasonable and normal”, while an embassy may not open new offices – for example a consul in another city – unless it has permission from the host nation.
Do these laws apply only to embassies?
The principle of extraterritorial jurisdiction, meaning that a country gives up certain legal rights over its own territory, is held to apply in a number of other areas.
The most unusual case involves two Royal Air Force bases in Cyprus, a former British colony, which remains a British Overseas Territory. That means Britain has sovereignty over the land even though it is not part of the UK.
Countries also have the right to send missions to UN bodies wherever they are located. This is why Israel is able to set up a mission at the headquarters of Irena, the UN body on renewable energy, in Abu Dhabi, even though the UAE does not recognise Israel.
Other bodies enjoying some measure of diplomatic status include military bases, embassies of the Vatican and the European Patent Office.