A University of Sussex DPhil thesis Available online via Sussex Research Online: http://sro.sussex.ac.uk/ This thesis is protected by copyright which belongs to the author. This thesis cannot be reproduced or quoted extensively from without first obtaining permission in writing from the Author The content must not be changed in any way or sold commercially in any format or medium without the formal permission of the Author When referring to this work, full bibliographic details including the author, title, awarding institution and date of the thesis must be given Please visit Sussex Research Online for more information and further details WHEN OLD PRINCIPLES FACE NEW CHALLENGES: A CRITICAL ANALYSIS OF THE PRINCIPLE OF DIPLOMATIC INVIOLABILITY THESIS SUBMITTED FOR THE DEGREE OF DOCTOR OF PHILOSOPHY YINAN BAO SUSSEX LAW SCHOOL UNIVERSITY OF SUSSEX July 2014 DECLARATION I hereby declare that this thesis has not been submitted, either in the same or different form, to this or any other University for a degree and the work produced here is my own except stated otherwise. Sign: Yinan Bao Date: i ACKNOWLEDGEMENTS I would like to thank Professor John Craig Barker and Dr Tarik Kochi for their constructive guidance and recommendations. In particular, I am extremely grateful to Professor Barker, whose support and inspired suggestions have been invaluable throughout the completion of this thesis. During my research, Professor Barker generously lent me more than ten books from his personal collection which proved to be invaluable to my research and the writing of the thesis. I must express my gratitude to my parents. This thesis could not have been written without my parents’ constant encouragement. Their generous financial support, their love and good wishes, smoothed the way for my studies here in the United Kingdom. This thesis is dedicated to them. I must also express my gratitude to Professor Malcolm N Shaw and Dr Paul Behrens, whose encouragement during my study of diplomatic law at the University of Leicester in 2009 inspired my research project. Their insightful comments on my course paper on diplomatic law and my LLM dissertation are the source of some of my points of view in this thesis. Special thanks should be given to my friends in China, especially Mr Zhao Yuanxun, Mr Lin Deyuan, and also Mr Liu Huawen of Institute of International Law, Chinese Academy of Social Sciences, Mr Xiu Wenhui of Guangdong University of Foreign Studies. Their support during my PhD is essential to the successful completion of my thesis. I would like to offer my best wishes to all of them. ii Abstract This thesis aims to provide a comprehensive analysis of the principle of diplomatic inviolability. The principle of diplomatic inviolability is generally regarded by international law scholars as one of the oldest established principles of international law. The concept of inviolability in contemporary international law contains two distinct aspects: in terms of the duty of the receiving State, the first aspect involves the negative duty of not taking any enforcement action against the inviolable diplomatic premises, diplomatic agents or the diplomatic property, while the second aspect requires the positive duty to protect these premises, personnel and property. The contemporary legal regime governing the principle of diplomatic inviolability can be seen through the core provisions stipulated in the Vienna Convention on Diplomatic Relations 1961. Several controversies can be identified when the authorities of the receiving State face dilemmas of deciding whether the principle of diplomatic inviolability or other norms of international law shall prevail. The dilemmas reveal the conflicts between the principle of diplomatic inviolability and other norms of international law, such as the protection of national security, public safety and human life. In the era of fragmentation of international law, it is not easy for either the authorities of the receiving State or international law scholars to settle the controversies with any straightforward solutions, for the reason that the precedence of diplomatic inviolability would inevitably compromise other norms and vice versa. The thesis examines the concept and theoretical basis of the principle of diplomatic inviolability, explores the historical evolution of the principle, analyses the contemporary legal regime of the principle and the controversies involving the conflicts between the principle and other norms of international law. Finally, the thesis critically reviews the various traditional solutions and proposes several alternative solutions to settle the controversies. iii Abbreviations AJIL American Journal of International Law BYIL British Yearbook of International Law CUP Cambridge University Press Cmnd Command Papers 1956-1986 ECHR European Convention on Human Rights GAOR United Nations General Assembly Official Records HC House of Commons ICCPR International Covenant on Civil and Political Rights ICJ International Court of Justice ICLQ International and Comparative Law Quarterly ILC International Law Commission ILR International Law Reports MFA Ministry of Foreign Affairs OUP Oxford University Press iv PCIJ Permanent Court of International Justice UN United Nations UN Doc United Nations Document UNGA United Nations General Assembly UN HRC United Nations Human Rights Committee UNSC United Nations Security Council UNTS United Nations Treaty Series VCCR Vienna Convention on Consular Relations 1963 VCDR Vienna Convention on Diplomatic Relations 1961 YILC Yearbook of International Law Commission v List of Cases Asylum Case (Columbia v Peru) [1950] ICJ Rep 266 Bancoult v Secretary of State for Foreign and Commonwealth Affairs, [2014] EWCA Civ 708; [2014] 1 WLR 2921 Boos et al v Barry, United States Supreme Court (22 March 1988) 485 US 312 Case concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) [2005] ICJ Rep 168 Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJ Rep 14 Case concerning United States Diplomatic and Consular Staff in Tehran (United States of America v Iran) (Order) (Request for the Indication of Provisional Measures) [1979] ICJ Rep 7 Case concerning United States Diplomatic and Consular Staff in Tehran (United States of America v Iran) [1980] ICJ Rep 3 Case concerning the Factory At Chorzów (Germany v Poland) [1928] PCIJ Series A, No. 17 Finzer v Barry, 121 ILR 499 Kivenmaa v Finland, UN HRC ‘Communication No 412/1990’, (31 March 1994) GAOR 49th Session Supp 40 vol 2, 85 Ministry for Foreign Affairs and Trade and others v Magno and another, 101 ILR 202 Public Prosecutor v LC (2002-2003) 8 Rechtskundig Weekblad 301 Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v Australia) (Order), (3 March 2014) General List No. 156 vi Respublica v De Longchamps (1784) 1 US 111 R v Commissioner of Police for the Metropolis, CO/129/2000, unreported (The Times, 20 October 1999) vii Table of Contents DECLARATION ............................................................................................................... i ACKNOWLEDGEMENTS .............................................................................................. ii Abstract ............................................................................................................................ iii Abbreviations ................................................................................................................... iv List of Cases ..................................................................................................................... vi Introduction ....................................................................................................................... 1 The aim and tasks of the thesis ................................................................................. 5 The scope of the thesis .............................................................................................. 5 Methodology ............................................................................................................. 7 Organisation of the thesis ........................................................................................ 11 The citation style ..................................................................................................... 13 Chapter 1 The Theoretical Foundations of the Principle of Diplomatic Inviolability . 14 1.1 The Concept and Nature of the Principle of Diplomatic Inviolability .............. 15 1.1.1 The Concept of ‘Diplomatic Inviolability’ ............................................ 15 1.1.2 The Nature and Concept of the Principle of Diplomatic Inviolability ... 20 1.2 The Sources and Scope of the Principle of Diplomatic Inviolability................ 25 1.2.1 The Sources of the Principle of Diplomatic Inviolability ...................... 25 viii 1.2.2 The scope of the principle of diplomatic inviolability ........................... 29 1.3 The Theoretical Basis of the Principle of Diplomatic Inviolability .................. 30 1.3.1 The Theory of ‘Representative Character’ as a Theoretical Basis of the Principle of Diplomatic Inviolability .............................................................. 32 1.3.2 The Theory of ‘Exterritoriality’ as a Legal Basis of the Principle of Diplomatic Inviolability .................................................................................