Guest Post: Iran and Diplomacy – Countermeasures Against Immunity and Immunity Against Countermeasures

[Sondre Torp Helmersen is an LLM candidate at the University of Cambridge, teaches at the University of Oslo, and is an editor at the Cambridge Journal of International and Comparative Law.]

The recent nuclear deal between Iran and the “P5+1” may potentially bookend a long period of intermittent diplomatic troubles for Iran. The mutual distrust and hostile rhetoric that have accompanied (and obstructed) the negotiations are traceable to the fallout over the taking of US diplomats in Tehran as hostages in 1979, in what is usually called the Iran hostage crisis. The diplomatic breakthrough that the deal represents provides an opportunity to revisit the impact of that crisis on the current state of diplomatic law. Some parts of its legacy are widely appreciated, while others are less well understood. This post will focus on a somewhat overlooked distinction, namely that between countermeasures against abuses of diplomatic immunity and violations of diplomatic immunity as countermeasures.

1. Background: The Tehran case and self-contained regimes

The hostage crisis led to a judgment by the International Court of Justice (the Tehran case, [1980] ICJ Rep 3). The Court found that actions attributable to Iran had violated the diplomats’ immunity. Iran argued, among other things, that the hostage takings could be seen as countermeasures against foregoing abuses of diplomatic immunity by the diplomats. Responding to this, the Court pronounced as follows:

“… diplomatic law itself provides the necessary means of defence against, and sanction for, illicit activities by members of diplomatic or consular missions.” (para 83)

“The rules of diplomatic law, in short, constitute a self-contained regime which, on the one hand, lays down the receiving State’s obligations regarding the facilities, privileges and immunities to be accorded to diplomatic missions and, on the other, foresees their possible abuse by members of the mission and specifies the means at the disposal of the receiving States to counter any such abuse. These means are, by their nature, entirely efficacious, for unless the sending State recalls the member of the mission objected to forthwith, the prospect of the almost immediate loss of his privileges and immunities, because of the withdrawal by the receiving State of his recognition as a member of the mission, will in practice compel that person, in his own interest, to depart at once.” (para 86)

The interpretation and ramifications of these passages are still debated. There are (at least) four possible readings. The passages may concern only abuses of diplomatic immunity, or they may cover all diplomatic law. They may exclude only countermeasures, or they may exclude any rights and obligations that would normally stem from an internationally wrongful act. This can be illustrated as follows:

The term “self-contained regime” has been defined as, e.g.:

• “a special set of secondary rules under the law of State responsibility that claims primacy to the general rules concerning consequences of a violation” (International Law Commission, Fragmentation of international law: difficulties arising from the diversification and expansion of international law, Report of the Study Group of the International Law Commission, at para 124 and 128)
• “strong lex specialis designed to exclude completely the general international law of State Responsibility” (Simma and Pulkowski, Leges specalies and Self-Contained Regimes, in Crawfard, Pellet and Olleson, The Law of International Responsibility (2010) 139, at 142)

The ICJ’s use of the term to describe “diplomatic law” may suggest that it intended to prescribe possibility 4. The Court’s solution of the case, however, required only possibility 1; anything further can be seen as an obiter dictum. Simma and Pulkowski convincingly argue that possibility 1 should be preferred (at 150-152).

2. The overlooked distinction

These four possible readings have been supplemented by one that is even broader. Article 50.2.b of the International Law Commission’s Draft Articles on Responsibility of States for Internationally Wrongful Acts (2001) states that:

“A State taking countermeasures is not relieved from fulfilling its obligations … to respect the inviolability of diplomatic or consular agents, premises, archives and documents.”

This means that a violation of diplomatic immunity cannot be a legal countermeasure. To support the rule, the article’s commentaries invoke the passages from the Tehran case cited above (Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries (2001) at art 50 para 15). The Tehran case did concern violations of diplomatic immunity that were argued to be a countermeasure. That claim could be rejected on either of two distinct grounds:

• I. No countermeasure, whether it consists in the non-performance of diplomatic immunity or of any other international obligation, may be used as a response to abuses of diplomatic immunity.
• II. No countermeasure, whether it is used as a response to abuses of diplomatic immunity or to any other internationally wrongful act, may consist in the non-performance of diplomatic immunity.

The rule in Article 50.2.b equals ground II. The Court’s central substantive point in para 86 was that “[diplomatic law] specifies the means at the disposal of the receiving States to counter any abuse [of diplomatic immunity]”. That is an invocation of ground I. While it is debatable which of the four possible readings outlined above that is correct, from the narrowest (possibility 1) to the broadest (possibility 4), the cited passages do not say anything about ground II.

In the next paragraph, Iran’s argument was ultimately rejected on the basis that Iran “did not […] employ the remedies placed at its disposal by diplomatic law specifically for dealing with activities of the kind of which it now complains”. The Court could “only conclude that Iran did not have recourse to the normal and efficacious means at its disposal”, with the result that Iran’s actions had to be seen as “coercive action against the United States Embassy and its staff” (para 87). In other words, Iran wrongly tried to invoke countermeasures against an abuse of diplomatic immunity. The issue was thus resolved on the basis of ground I.

3. An underappreciated obiter

However, the Court also stated that:

“But the principle of the inviolability of the persons of diplomatic agents and the premises of diplomatic missions is one of the very foundations of this long-established régime, to the evolution of which the traditions of Islam made a substantial contribution. The fundamental character of the principle of inviolability is, moreover, strongly underlined by the provisions of Articles 44 and 45 of the Convention of 1961 (cf. also Articles 26 and 27 of the Convention of 1963). Even in the case of armed conflict or in the case of a breach in diplomatic relations those provisions require that both the inviolability of the members of a diplomatic mission and of the premises, property and archives of the mission must be respected by the receiving State.” (para 86)

This passage concerns the fundamental character of diplomatic immunity, and how it must be upheld under all circumstances. Since it was written in the context of countermeasures against diplomatic personnel, it is most plausibly read as a conformation of ground II. As Iran’s argument could be, and was, rejected on the basis of ground I, the passage should be seen as an obiter dictum. From the Tehran judgment it is this obiter that is, and should be cited as, the basis for the rule contained Article 50.2.b of the Responsibility of States for Internationally Wrongful Acts.

This has, however, often not been done. For example, the ILC also cited the Tehran case in its final fragmentation report (see above), drawing the conclusion that “no reciprocal breach of diplomatic immunity is permissible” (para 125). The ILC’s use of the term “reciprocal” means that it is talking not only about countermeasures against abuses of diplomatic immunity, but also about violations of immunity as countermeasures. It did not, however, cite the relevant obiter.

4. Conclusion

Regarding diplomatic immunity and countermeasures, the Tehran judgment seems to make two interesting and important points: Firstly, countermeasures cannot be used against abuses of diplomatic immunity, and secondly, countermeasures cannot violate diplomatic immunity. These two points are, however, distinct, and are confirmed by separate parts of the judgment.