The positive duty to protect diplomatic missions and personnel - An evaluation of what is appropriate

Abstract: As I write this, there are numerous horrible wars and acts of terror taking place all over the world. However, it is my belief that the situation would be even worse without diplomats working as mediators, and for them to be able to fulfil their duties they need to be inviolable. Through the Vienna Convention on Diplomatic Relations of 1961, which is believed to reflect customary international law, diplomats are ensured this inviolability. In my thesis I have focused on the customary international law which has been codified in Articles 22, 29 and 30 of the Vienna Convention, which gives inviolability to the mission premises, the diplomatic agent and his or her private residence and property. All three articles impose upon receiving states a duty to protect the diplomatic missions and this duty is both positive and negative in its character. The positive duty means that the receiving state actively has to protect the diplomatic missions, agents and property and the negative duty is a passive obligation not to violate the inviolability by for example having the receiving state's police force entering the diplomatic premises without being asked to do so by the diplomatic agent. To fulfil its positive duty, the receiving state needs to take ''all appropriate steps'' to protect. When I started thinking about this thesis I wondered, what is ''appropriate'' and what do you need to consider when determining that? I decided to devote the thesis to try to see if there is a clear answer to that question. In almost every situation, receiving states accept and acknowledge their duty to prevent intrusion. However, in 1979 the world witnessed a unique abandonment by a receiving state of its responsibilities under the Vienna Convention and customary international law. In that year, in November, the United States Embassy in Tehran was seized. People were held hostage for incredible 444 days without getting any help from the republic of Iran. In the Case concerning United States Diplomatic and Consular staff in Tehran the International Court of Justice found that: 'the Iranian Government failed altogether to take any ''appropriate steps'' to protect the premises, staff and archives of the United States mission against attack by the militants, and to take any steps either to prevent this attack or to stop it before it reached its completion.' ICJ Reports 1980, p. 557, paragraph 63. During the second phase, when the occupation of the mission premises continued, the lack of action by the Iranian Government: 'clearly gave rise to repeated and multiple breaches of the applicable provisions of the Vienna Conventions and even more serious than those which arose from their failure to take any steps to prevent the attacks on the inviolability of these premises and staff.' Ibid. p. 561, paragraph 76 The Court considered this situation to be unique because of the fact that it was not only private individuals or groups of individuals that had disregarded the inviolability of the embassy, but the Iranian Government itself. The Court also emphasized the fact that 'it is more essential than ever that the rules developed to ensure the ordered progress of relations between its members should be constantly and scrupulously respected'. Ibid. p. 568 paragraph 92 It was also concluded that this was due to negligence and not lack of appropriate means. This was concluded since less than a year prior to the attack on 4 November 1979, a similar but not as grave situation had taken place only that time the Iranian authorities had done everything practically ''by the book''. From this conclusion it is my opinion that you can also tell that there is an economic factor when you determine what is appropriate. Not all states have the financial possibilities to provide sophisticated protection. And due to that fact, what is appropriate in one state may not be even close to enough and appropriate in another. The receiving state has to protect the mission against intrusion and damage, prevent disturbance of peace and impairment of its dignity. It is obvious that international responsibility for protecting diplomatic missions and personnel is the duty of the receiving state and when an attack occurs against this target the state's culpability, not innocence, is presumed. Therefore, in order to avoid responsibility, the state has to prevent any violations against the diplomatic missions and personnel. There are certain situations, such as demonstrations, that have happened so many times in the past that the state should know what to do to provide appropriate protection. Other situations that are less common, such as hostage-takings and physical attacks can probably be avoided in many cases if the receiving state actively looks for possible threats against the diplomatic corps. The United Nations Sixth Committee has devoted a lot of efforts to the area diplomatic protection. Every other year the General Assembly considers the item ''Consideration of effective measures to enhance the protection, security and safety of diplomatic and consular missions and representatives''. From different resolutions adopted by the GA, states are encouraged to send in reports of violations and reports of what measures that are taken in each respective state in the field of diplomatic protection. I have looked at a few of them in hope of understanding better what states consider to be ''appropriate steps''. The reported violations included, among other things&semic forced entry and assault to the diplomatic premises&semic physical and psychological violence&semic demonstrators storming the embassies&semic and burned documents and vehicles. Kuwait also reported a failure of the Libyan security forces to respond to an appeal for assistance when the embassy was attacked. All of these incidents violate Articles 22, 29 and 30 of the Vienna Convention on Diplomatic Relations and it is the hosting state's duty to avert the situation. The states that provided information on measures taken reported that they punished known offenders and focused a lot on evaluating possible threats to the diplomatic corps in order to prevent attacks. As you will see in my thesis I have come to the conclusion it should not only have to be preventive actions that are part of the concept of taking ''all appropriate steps'' to ensure the protection of diplomatic agents and missions. I believe that punishing the offenders might also be part of what is ''appropriate''. According to the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, it is clear that persons alleged to have committed any one of the specified (See Article 2) offences of violence against a diplomatic agent, or other person entitled to similar protection, should either be extradited or have their case submitted to the competent authorities for the purpose of prosecution. I am of the opinion that in the obligation states have to protect diplomatic agents and missions rests an obligation to punish those whose actions have breached the inviolability, which the state had to protect. The two activities, protecting and punishing, are so naturally related that it could fall under the same concept of taking ''all appropriate steps''. When I first started writing this thesis, I thought that by the end, I could provide an exhaustive list of what the ''appropriate steps'' are but this is not the case. What is appropriate is very much determined by the circumstances in each situation but as you will see, there are some guiding principles states should follow.