Diplomatic Immunity and Responsibilities

Introduction

The Vienna Convention on Diplomatic Relations, 1961 (VCDR) provides for privileges and immunities “to ensure efficient performance of the functions of diplomatic missions as representing States”. The “person of a diplomatic agent shall be inviolable”. At the same time, such person to respect the laws and regulations of the receiving State, and not to interfere in its internal affairs. This essay will deal with the case of in order to address issues in case of alleged breach of VCDR duty by Ms. Lopatina. Ms. Lopatina, a diplomatic agent of Russia, was arrested by Norwegian Police Security Service for her conduct of collecting information regarding NATO military exercise “Trident Juncture” in Norway. This essay will address the components constituting internationally wrongful acts by dealing with the “inviolable” rights of diplomatic agents. It will address issues regarding whether an act of a diplomatic agent is an act of its government by citing the principle of state sovereignty and non-interference duty of a state towards another state.

Elements of internationally wrongful act

An internationally wrongful act of a state occurs when an act or omission is attributable to that states under international law and such act or omission constitutes a breach of an international obligation of the State. These conditions are determined by the international order alone. In regard to state’s responsibility, international responsibility arises from an “act being attributable to a state and described as contrary to the treaty right of another State”. The ICJ treats an act is “attributable” through the well established rule that the act or omission of any state organ is treated as an act of the state under international law. This is also provided under Article 5 of ILC Draft 2001 that provides that the conduct of the person or entity empowered by law of a state to act to that effect and acting in that capacity is treated as the act of the state under international law.

Internationally wrongful acts by Norway

In the current case, it must be determined whether Norway committed internationally wrongful acts by the manner the PSS officer dealt with Ms. Lopatina. VCDR, Article 29 provides that the “person of a diplomatic agent shall be inviolable”. They must not be subject to any form of arrest or detention. It is the duty of the receiving State to treat them with due respect. The state must take all appropriate steps to prevent any attack on their person, freedom or their dignity. Article 29 requires the receiving state to take appropriate measures. However, there is no further explanation on what measure is appropriate.

---

1. The Vienna Convention on Diplomatic Relations, Article 29.
2. The Vienna Convention on Diplomatic Relations, Article 41(1)
3. ILC Draft 2001, Article 2.
4. rigtte Stern, ‘The Elements of an Internationally Wrong Act’ in Alain Pellet, Dr Kate Parlett, James Crawford and Simon Olleso (eds.), The Law of International Responsibility (Oxford University Press 2010) 201.
5. Phosphates in Morocco, Italy v France, General List No. 71, Judgment No. 28, Judgment, 14 June 19.
6. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia Herzegovina v Serbia and Montenegro) Merits, Judgment, 26 February 2007, para 385.
7. Christian Oelfke, Holger Raasch, Niklas Dominik Wagner and Thomas Pröpst, Vienna Convention on Diplomatic Relations of 18 April 1961: Commentaries on Practical Application (BWV - Berliner Wissenschafts Verlag GmbH 2018) 206.

The Tehran Hostages case serves a special purpose here. In this case, diplomatic and consular staffs were put in detention by militant students for over a year in the US Embassy in Tehran. The Iranian government did not act to address the issue. The ICJ held that this was a serious violation of Article 29 of VCDR. In another case of breach of Article 29, in 1987 in Tehran, a diplomatic agent in the British Interests Section was arrested and detained for 24 hours by the Revolutionary Guards. This was in retaliation to the arrest of an Iranian vice-consul by the British police in Manchester for shoplifting. Article 29 prohibits and makes inadmissible any threat and enforcement measures against a diplomatic agent. They cannot be arrested or detained or put into custody. A diplomatic agent cannot be made to submit to compulsory search by police or law enforcement bodies. However, the ICJ in the Hostage caseheld that the protection offered by inviolability principle does not mean 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 states in order to prevent the commission of the particular crime. ICJ in Tehran hostage case stated that VCDR is a self contained regime, where the only possible remedy to address infringement by a diplomatic agent is declaring them “persona non grata”. In severe infringement case, the receiving state can temporarily arrest them to prevent them from committing offenses. ILC also holds that the principle of inviolability cannot rule out measures of self defence or measures in extreme situation. Short term detention may be admissible to establish their identity or preventing them from committing a major infringement. However, preliminary arrest, detention, confiscation, interrogation and search are all against Article 29 if such measures are against the will of the person. In the current case, Ms. Lopatina was subjected to arrest despite her informing PSS that she was a Russian diplomat. She was ground in to take her finger prints violated provision of Article 29. In this regard, PSS could claimed that they had followed sufficient due diligence when they checked Ms. Lopatina identify and corrected their conduct. However, the facts show that PSS did not treat her with due respect. They did not take all appropriate steps necessary to that effect as they ignored her assertion and the fact that she was a diplomatic agent. Also, the case concerns preliminary arrest,

---

8. United States Diplomatic and Consular Staff in Tehran, Judgment ICJ Reports 1980, p 3, 29.
9. Christian Oelfke, Holger Raasch, Niklas Dominik Wagner and Thomas Pröpst, Vienna Convention on Diplomatic Relations of 18 April 1961: Commentaries on Practical Application (BWV - Berliner Wissenschafts Verlag GmbH 2018) 211-213.
10. Eileen Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations (Oxford University Press 2016) 222.
11. Case Concerning United States Diplomatic and Consular Staff in Tehran 1980 ICJ Reports 3 at para 86..
12. Eileen Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations (Oxford University Press 2016) 222.
13. Christian Oelfke, Holger Raasch, Niklas Dominik Wagner and Thomas Pröpst, Vienna Convention on Diplomatic Relations of 18 April 1961: Commentaries on Practical Application (BWV - Berliner Wissenschafts Verlag GmbH 2018) 209.
14. Christian Oelfke, Holger Raasch, Niklas Dominik Wagner and Thomas Pröpst, Vienna Convention on Diplomatic Relations of 18 April 1961: Commentaries on Practical Application (BWV - Berliner Wissenschafts Verlag GmbH 2018) 211-213.
15. Christian Oelfke, Holger Raasch, Niklas Dominik Wagner and Thomas Pröpst, Vienna Convention on Diplomatic Relations of 18 April 1961: Commentaries on Practical Application (BWV - Berliner Wissenschafts Verlag GmbH 2018) 211-213.
which is not permissible without consent, and not short term detention where the issue is severe infringement. Consideration of these factors makes the enforcement measures of PSS in breach of Article 29.

The principle of ‘inviolability’ is extended to the private residence of the diplomatic agent. Article 30(1) of VCDR places the private residence and the premises of the mission on equal standing. They enjoy the inviolability and protection. Article 30(2) extends inviolability to their papers, correspondence and property. This protection will not be available, as per Article 31(c) if their act is beyond their official functions. Inviolability in regard to the premises, as provided under Article 22, provides authorities of the state can enter the premises only with consent. They must take all appropriate steps to protect the premises against any intrusion, damage, disturbance of peace, or impairment of its dignity. The premises and the property in it are immune from requisition, search, attachment or execution. In the light of these provisions, they were also guilty of “illegal trespassing into the dwelling of a diplomatic agent”. ILC holds the view that the residence of the diplomatic agent includes their temporary residence. It. thus, covers second residence, such as a hotel room or a holiday cottage where they are actually living in it. Article 31 also includes a private immovable property within the scope of mission premises if it is held by the agent on behalf of the sending State for the purposes of the mission. In Novello v Toogood, the ruling included any immovable property that is used for the convenience of the ambassador connected with his duties and religion. The principle private residence must enable the diplomat to perform his duties and as such must be immune. Inviolability is applicable to occasional residence for the relevant period of occupation. In such case, the hotel room Ms. Lopatina had been renting in Trondheim will be treated a mission premises and will inviolable if it is held by Ms. Lopatina on behalf of the sending State for the purposes of the mission.

Lopatina’s espionage - an internationally wrongful act on the part of Russia.

The issue of whether her conduct could be treated a wrongful act on the part of Russia could be dealt with by considering the principle of state sovereignty. International law confers on a diplomat immunity from another state due to the consequence of state sovereignty. The immunity of a diplomat is the transferred immunity of a state. Lord Hewart CJ in Dickinson v Del Solar ruled that international law does not extend immunity from legal liability. It provides allowance of immunity from local jurisdiction. As such the diplomat immunity is a privilege because of the power of the sovereign which law recognises him and give accreditation. Thus, they represent the state and any impleading on him by international customary law amounts to impleading the sovereign.

---

16. Eileen Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations (Oxford University Press 2016) 226.
17. Novello v Toogood [1823] 1 B & C 554.
18. Eileen Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations (Oxford University Press 2016) 299.
19. Eileen Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations (Oxford University Press 2016) 301.
20. Ernest K. Bankas , The State Immunity Controversy in International Law: Private Suits Against Sovereign States in Domestic Courts (Springer 2005) 40.
21. Dickinson v Del Solar (1930) 1 KB 376
22. Ernest K. Bankas , The State Immunity Controversy in International Law: Private Suits Against Sovereign States in Domestic Courts (Springer 2005) 41.
The principle of non-interference could be found in VCDR, Article 41(1) that prohibits any person with privileges and immunities from interfering with the internal affairs of receiving state. The principle of non-interference provides for a state to be able to intervene to defend themselves. DARS entitles a state to invoke responsibility of another state in case the latter state breaches an obligation owed to all the other states. Paragraph 1 of the UN General Assembly Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of their Independence and Sovereignty condemns all other forms of interference. This is broad enough to cover any subordination of exercise of a state sovereign right or to secure advantages of any kind to that effect. In Nicaragua v United States, ICJ ruled that a state is free to decide whether an act is interference on matters in which the state is permitted by its sovereignty. It can employ political, economic, cultural and social system and formulation of foreign policy. ICJ held that coercive intervention in regard to the said choices is unlawful. Such coercion is found in direct military action or indirect support for subversive or terrorist armed activities. The duty not to intervene in matters within the domestic jurisdiction of any State is also provided by the UN GA Res 2526(XXV). Direct or indirect intervention is prohibited in internal or external affairs of a state.

Ms. Lopatina, being a diplomatic agent, represents the state sovereignty of Russia. Impleading her would amount to impleading Russia. However, it needs to be determined whether her conduct violated the duty of non-interference. The principle of non-interference enables a state to defend from all forms of interference. However, it is only when such interference is unlawful, which is when, as held in Nicaragua, that the intervention used coercive intervention. The concerned question is whether the conduct of Ms. Lopatina was coercive in nature. If going by the ruling in Nicaragua, the conduct did not amount to use of coercive intervention and as such could not be held unlawful. The question still remains whether her conduct could be treated interference. In this case, Nicaragua ruling stated that the state is free to decide the scope on matters within its jurisdiction as permitted by its state sovereignty. UN GA Res 2526(XXV) use of “all other forms of interference” is also wide enough to include the conduct of Ms. Lopatina. As such, her conduct constitutes interference with the internal affairs of Norway. However, per Dickinson ruling that international law provides immunity from local jurisdiction, but not from legal liability. Ms. Lopatina cannot prosecuted for any acts contrary to the law of the receiving state as her immunity is not waived. The Responsibility of States for Internationally Wrongful Acts 2001, Article 4 provides that a conduct of any State organ, whether person or entity, is an act of that State under international law. Such

---

23. Jeannnie Rose Filed, ‘Bridging the Gap between Refugee Rights and Reality: A Proposal for Developing International Duties in the Refugee Context’ (2010) 22 IJRL 512, 535.
24. Paul Behrens, Diplomatic Law in a New Millennium (Oxford University Press 2017) 280.
25. Marco Roscini, Cyber Operations and the Use of Force in International Law (Oxford University Press 2014) 64.
26. Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States) [1986] ICJ Rep 14.
27. United Nation, ‘UN Documents: Gathering a body of global agreements” accessed on 4 November 2020 .
28. Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States) [1986] ICJ Rep 14
29. Dickinson v Del Solar (1930) 1 KB 376
organ may possess legislative, judicial, executive or any other functions and any character as an organ of the government, whether central or state. Under Article 7, if the conduct of the organ is beyond the authority or in contravention of instructions, it shall still be treated as an act of that State if that organ is empowered to exercise elements of the governmental authority. Under Article 8, if the conduct is under instructions, direction or in control of the state, it is an act of the state. In relevance with the case, does the conduct of Ms. Lopatina attributable to Russia? Ms. Lopatina is a diplomatic agent and hence, is an organ of Russia. Whether her conduct was beyond authority or in contravention of instructions, it would be treated as an act committed by Russia. The main element is that act must be within the authority, instruction and control of Russian government. Following the ruling in Morocco case and Tehran Hostages case, Russia had an international responsibility to towards other states as the act of Ms. Lopatina was attributable to Russia, which may have contradicted treaty right of Norway. Accordingly, the act of Ms. Lopatina will be treated as an act by the Russian government. Even if the act did not amount to interference of the internal affairs of Norway, according to Article 41(1), Russia breached it duty to respect the laws and regulations of Norway. Under Article 48 of Responsibility of States for Internationally Wrongful Acts 2001, Norway may invoke responsibility of Russia in this situation where Russia has breach its obligation it woes to other states including Norway. It can claim against Russia to cease the internationally wrongful act and ask for assurances and guarantees that such act will not be repeated. VCDR, Article 9(1) also provides similar rights where Norway, as the receiving State, may issue persona non grata without citing any reason any time. Norway, according to this provision, presented Ms. Lopatina was a letter declaring her a persona non grata. In relevance to the treaty principles and obligation read with the facts of the case, it could be derived that there has been an interference with the internal affairs of Norway. However, such interference may not amount to unlawful or coercive intervention as the conduct was purely an act of information gathering. There was no coercive intervention or no involvement of economic political, economic, cultural and social system and formulation of foreign policy. This does not mean that there was no violation of Norwegian domestic law. Ms. Lopatina conduct was an abuse of her privileges and immunities afforded under the VCDR. However, because of the principle of state sovereignty, she has diplomatic immunity.

Conclusion

An internationally wrongful act occurs when act or omission violates an international obligation and is attributable to a state, which owes this obligation towards other states. VCDR provides immunity to a person of a diplomatic agent including their residence occupied for their official function. This immunity cannot be trespassed, and a receiving state must take all appropriate steps to protect this immunity. This includes not subjecting the agent to preliminary arrest, detention, confiscation, interrogation and search without their consent. Such act will be against Article 29 except when in severe infringement case, they could be temporarily arrested. In case of Ms. Lopatina, the conduct of the PSS violated Article 29 as there were no appropriate

---

30. Phosphates in Morocco, Italy v France, General List No. 71, Judgment No. 28, Judgment, 14 June 19.
31. United States Diplomatic and Consular Staff in Tehran, Judgment ICJ Reports 1980, p 3, 29.
measures in place and the conduct of PSS occurred despite her assertion. Her preliminary arrest and the search of her residence are prohibited conduct. Such prohibition or inviolability under Article29 extends to her hotel room where she was staying for official purposes. PSS is thus liable under 30(1) for trespassing and for the damages caused to the hotel room, which is her second residence. Following the principle of non-interference, this essay has found that Ms. Lopatina has interfered with the internal affairs of Norway. The legal reasoning is based in VCDR, Article 41(1), the Nicaragua case, and the UN GA Res 2526(XXV) declaration. It was unlawful on the part of her to breach the domestic laws of Norway. However, her conduct is attributable to Russia. The basis could also be found under the Responsibility of States for Internationally Wrongful Acts 2001, Article 4. Along with ruling in Morocco and Tehran Hostages, Russia owes an international responsibility towards Norway. As such, the act of Ms. Lopatina has made Russia contradicted treaty right of Norway. However, by principle of state sovereignty, Ms. Lopatina has diplomatic immunity.

---

32. Phosphates in Morocco, Italy v France, General List No. 71, Judgment No. 28, Judgment, 14 June 19.
33. United States Diplomatic and Consular Staff in Tehran, Judgment ICJ Reports 1980, p 3, 29.

Take a deeper dive into Challenging the Myth of Optimal Balance with our additional resources.

Legislation

The Vienna Convention on Diplomatic Relations

ILC Draft 2001

Cases

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia Herzegovina v Serbia and Montenegro) Merits, Judgment, 26 February 2007

Case Concerning United States Diplomatic and Consular Staff in Tehran 1980 ICJ Reports 3

Dickinson v Del Solar (1930) 1 KB 376

Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States) [1986] ICJ Rep 14.

Novello v Toogood [1823] 1 B & C 554.

Phosphates in Morocco, Italy v France, General List No. 71, Judgment No. 28, Judgment, 14 June 19. United States Diplomatic and Consular Staff in Tehran, Judgment ICJ Reports 1980

Bibliography

Books

Bankas EK, The State Immunity Controversy in International Law: Private Suits Against Sovereign States in Domestic Courts (Springer 2005)

Behrens P, Diplomatic Law in a New Millennium (Oxford University Press 2017) Denza E, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations (Oxford University Press 2016)

Oelfke C, Holger Raasch, Niklas Dominik Wagner and Thomas Pröpst, Vienna Convention on Diplomatic Relations of 18 April 1961: Commentaries on Practical Application (BWV - Berliner Wissenschafts Verlag GmbH 2018)

Roscini M, Cyber Operations and the Use of Force in International Law (Oxford University Press 2014)

Stern B, ‘The Elements of an Internationally Wrong Act’ in Alain Pellet, Dr Kate Parlett, James Crawford and Simon Olleso (eds.), The Law of International Responsibility (Oxford University Press 2010)

Journals

Jeannnie Rose Filed, ‘Bridging the Gap between Refugee Rights and Reality: A Proposal for Developing International Duties in the Refugee Context’ (2010) 22 IJRL 512, 535.

Others

United Nation, ‘UN Documents: Gathering a body of global agreements” accessed on 4 November 2020 .