* Radwan V. Radwan : Reprinted with Permission of Lexis Nexis Butterworth Publishing 1972

ADVOCACY IN INTERNATIONAL LAW

PROBLEMS & SPECIAL CASES SPRING 2016 INTERSESSION

Day 1: January 4, 2016 * Problem 1.C): It is not long after September 11, 2001. Four US aircraft have been hijacked by nineteen hijackers, mostly Saudi-Arabians. Two of the planes flew into and brought down the New York City World Trade Center’s twin towers. As a result, nearly three thousand individuals from eighty-two countries died. You work for the Department of State in one of the countries whose citizens have been killed. Your superior asks you to either discuss with her what sources should be consulted to determine whether this event violates International Law. You need not cite any specific document. The objective is to analyze where to find an answer, but not necessarily what the answer will be. (Decision-makers constantly deal with murky research problems, given the ebb and flow of what constitutes Int’l Law.)

AUTHOR’S NOTE: Mr. Radwan was an Egyptian national who entered into a polygamous marriage with an English woman in the Egyptian consulate in Paris. Mr. Radwan subsequently moved to London. He entered the Egyptian consulate there, for the purpose of divorcing his English (second) wife. He thus employed the “talaq” procedure. In her absence, he orally decreed, three times, that they were divorced. This talaq procedure constituted a valid divorce under the laws of Egypt—but not under English law. Several years later, his English wife filed her own divorce suit in the English courts, anticipating a more favorable divorce decree under English law than under Egyptian law. Her English lawyer argued that the talaq “divorce,” while performed within the Egyptian consulate in London, was not entitled to recognition under English law. It should not be recognized as a divorce performed “outside of ” England. Mr. Radwan, hoping to avoid a comparatively unfavorable English divorce decree, responded to this “wife’s” suit on the basis that he had already obtained a valid divorce. Thus, he argued, his prior talaq divorce was effective, because it was legally performed on “Egyptian territory” (i.e., in Egypt’s consulate in London). The court’s footnotes are omitted.

COURT’S OPINION: I have read the relevant subparagraph of the petition whereby the talaq divorce is pleaded. The husband put in evidence the affidavit of Mustapha Kamil Abdul Fata, Deputy Consul General of the Consulate General of the United Arab Republic of Egypt in Kensington Palace Gardens in London. In it he swore [in his capacity as an expert on Egyptian law] as follows: (1) The Egyptian Consulate in London is regarded as being Egyptian territory on Egyptian soil. (2) The divorce … registered in Cairo … is valid and recognised by Egyptian law. … I also received the affidavit of Jamil Nasir, a person qualified in Egyptian law. In that affidavit he says that … under Egyptian law the Consulate General of the United Arab Republic in London is regarded as Egyptian territory. He does not give any reasons for that opinion, but I note that it corresponds with the [above quoted] statement of the deputy consul of the Consulate General in London. … The facts are as follows. The husband was born in Cairo. He is and at all material times was a Mohammedan. He was and remains a subject of the United Arab Republic. … On 1st [of ] April 1970 he entered the Egyptian Consulate in London; the procedure stated in the affidavit of the deputy consul of the Consulate General was followed. The husband three times declared the prescribed [talaq] form of divorce in the presence of two witnesses. All the steps were carried out in accordance with Egyptian law. After the prescribed 90 days the divorce was finalised in accordance with Egyptian law, and in accordance with that law it was no impediment to the efficacy of the proceedings that the wife knew nothing about it at all. The question for my decision is whether by English law the Consulate General of the United Arab Republic is part of a country outside the British Isles within the meaning of the Recognition of Divorces and Legal Separations Act of 1971. By that Act the relevant sections providing for recognition will have effect in respect of overseas divorces if they have been obtained by means of judicial or other proceedings in any country outside the British Isles, and it is necessary for the efficacy of the talaq divorce that it should have been obtained outside the British Isles by reason of the fact that at the material time the husband had acquired English domicile [emphasis supplied by author]. Curiously, the question has not arisen for decision in England before, that is, the question whether the premises of an embassy or consulate are part of the territory of the sending state as compared to the territory of the receiving state. I quote and adopt the observations of [legal commentator] Mr J E S Fawcett:

There are two popular myths about diplomats and their immunities which we must clear away: one is that an embassy is foreign territory, and the other is that a diplomat can incur no legal liabilities in the country in which he is serving. The first is a confusion between territory or property and jurisdiction over it, and it is important to clarify it for it has sometimes arisen over ships and aircraft. The building occupied by a foreign embassy and the land on which it stands are part of the territory of what we call the receiving state: it is therefore under the jurisdiction of that state. But the members of the mission and their activities in the embassy are primarily under the control and jurisdiction of the sending state. International law avoids conflict between these jurisdictions by laying down rules to cover the whole field of diplomatic relations. These rules have been embodied in the Vienna Convention [on Diplomatic Relations of ] 1961, which may be taken as reflecting existing law and practice. This Convention, and that on Consular Relations drawn up in 1963, are among the first steps … in the successful codification of international law. The premises of a mission are inviolable, and the local authorities may enter them only with the consent of the head of the mission. But this does not make the premises foreign territory or take them out of the reach of the local law for many purposes: for example, a commercial transaction in an embassy may be governed by the local law, particularly tax law; marriages may be celebrated there only if conditions laid down by the local law are met; and a child born in it [the diplomatic premises] will, unless his father has diplomatic status, acquire the local nationality.

Judge Cummins then considered similar cases involving this issue arising in other countries. This is a useful illustration of how a decision maker resorts to customary State practice as a basis for ascertaining the content of International Law.

FRANCE: Nikitschenkof case: The court was dealing with murderous assaults on the first secretary of the Russian embassy in the Russian embassy in Paris, and an argument was submitted that the place of the crime being the premises of the Russian embassy was a place situated outside the territory of France and not governed by French law. The decision was a decision under art. 3 of the Code of Napoleon. The court said: [that] all those who live in the territory [France] are subject to [French] police and security laws; Whereas, admitting as exceptions to this rule of public law the immunity which, in certain cases, international law accords to the person of foreign diplomatic agents and the legal fiction in virtue of which the premises they occupy are deemed to be situated outside the territory of the sovereign to whom they are accredited; Whereas, nevertheless, this legal fiction cannot be extended but constitutes an exception to the rule of territorial jurisdiction … and is strictly limited to the ambassador or minister whose independence it is designed to protect and to those of his subordinates who are clothed with the same public character; Whereas the accused is not attached in any sense to the Russian Embassy but, as a foreigner residing for the time in France, was subject to French law; and Whereas the place where the crime which he is charged with committing cannot, in so far as he is concerned, be regarded as outside the limits of [French] territory … the jurisdiction of the French judiciary [is] clearly established.

GERMANY: Afghan Embassy case.

ITALY: [citing several cases].

In all these cases the court rejected the argument that diplomatic premises were not part of the territory of the receiving state. … Although international conventions [treaties] do not have the force of law unless embodied in municipal legislation [of an individual state], they may in the field of international law be valuable as a guide to the rules of international law which this country as a signatory respects. … If it was the view of the high contracting parties [to the Vienna Convention] that the premises of missions were part of the territory of the sending state, that would undoubtedly be formulated [within the language of those treaties].