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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.
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,
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.
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
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
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