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UNIVERSITY OF THE WEST INDIES FACULTY OF LAW

LA 23B - PUBLIC INTERNATIONAL LAW II (2001)

STUDENT ANSWERS TO QUESTION 2

Caveat – each year different cases and treaties are taught and the law may change. Thus
these answers should be used as a general guide as to what is possible / expected.

Instructions – read the question, then read all three answers. Try to grade each answer
yourself before holding the cursor over the “GRADE” given at the end of each question.

QUESTION 2

Vast oil deposits are discovered in the State of Squim . Two neighbouring powers, the
States of Rych and Filthyrych, are keen to obtain competitively priced, long term supplies
of Squim’s oil. The Ambassador of Rych invites the Prince Regent of Squim to a
sumptuous banquet at the Rych Embassy. The Prince chokes on one of his luxurious,
gold-coated chocolates. The Rych Ambassador panics and whacks the Prince on his back
to clear his Royal windpipe. The Prince Regent spits up the troublesome chocolate,
belches with satisfaction, and prepares to depart from the Rych Embassy. While the
Prince is collecting his coat, his Chief Bodyguard, Captain Earnest, asks to speak
privately with the Rych Ambassador. Captain Earnest explains that the Prince Regent’s
body is sacred to the people of Squim and cannot be touched by a foreigner. Therefore,
Captain Earnest immediately draws his gleaming scimitar and chops off the
Ambassador’s offending hand. Screaming in agony, the Ambassador flees to an adjoining
room to be treated by a doctor. The Prince does not notice these events. His Highness is
driven across the street to the Filthyrych Embassy for an evening of champagne and
caviar tasting.

Walter, the son of the Ambassador of Rych rushes to his father’s side when he hears his
cries of pain. After seeing his father’s bleeding stump, Walter swears revenge. He grabs
a machine gun from one of the Embassy guards and jumps into one of the Embassy’s
official Land Cruisers. Walter drives the Land Cruiser across the street at high speed and
crashes through the gates of the Filthyrych Embassy. He leaps out of the car and fires
shots wildly around the Filthyrych compound. The Prince Regent’s finger is cut when his
champagne glass shatters in his hand. Filthyrych Embassy guards return fire and Walter
flees the scene, returning to the Rych Embassy. Troops of the State of Squim surround
the Rych Embassy and wildly fire their guns into the air. Neither Walter nor his father,
the Ambassador, feels safe enough to leave the Embassy compound.
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Relations are tense between all three states. After securing its oil contract with Squim,
the State of Filthyrych demands that the State of Rych extradite Walter to face criminal
charges for his violations of Filthyrych sovereignty. The treaty between the two states
has a provision requiring extradition for offences against diplomatic premises. The
constitution of the State of Rych , however, does not allow extradition of its own
nationals. Rych offers to try Walter in its own courts.

The State of Squim demands that both the Ambassador and his son be released into its
custody for criminal trial. Offences against the Squim Royal Family carry the death
penalty. The State of Rych refuses to yield its nationals to the Squim authorities and
demands that Squim allow it to evacuate its Embassy and personnel. Squim authorities
respond: “Those diplomatic dogs can leave at any time if they wish.” Squim military
personnel are heard chanting “Death to the Rych” from just outside the compound walls.

Advise the State of Rych about the legality of all of the above actions as about its most
appropriate course of action under the rules of international law.

ANSWER 1 (A+)

In relation to the slap by Ambassador Rych to remove the gold-coated chocolates

this raises the question as to whether or not he has committed an offence against the
person of the sovereign i.e the Prince Regent.

In normal circumstances such an assault could be justified on the grounds of

necessity. The ambassador may have felt on reasonable grounds that such a course of
action was necessary to save the prince’s life.

However the State Immunity Act of 1978 imports that the body at the head of
State is inviolable. This is so because section 20 of the Act speaks to the fact that the
head of state i.e. the sovereign enjoys the immunities listed under the Diplomatic,
Privileges and Immunity Act 1964.

This Act incorporates the Vienna Convention into the English Law. Therefore
according to those Acts the prince being the sovereign would have the same privileges as
afforded a diplomat.

As a consequence the ambassador of Rych may be in violation of the Vienna

Convention on Diplomatic Immunity concerning the inviolability of the body of the
sovereign.

However as he is a diplomat he too would not be liable in the court of Squim

unless the immunity he enjoys is waived.
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In relation to Captain Earnest chopping off the ambassador of Rych’s hand, he

would be liable for such action in Squim’s court. For the ambassador’s person is
inviolable, more so too because the act occurs in the embassy.

This act may also raise the question as to whether this act can be imputed to the
state. The answer to this question depends on whether or not it was a state act. The cases
of Caire, Youmans suggest that even when a soldier acts ultra vires the State may still be
liable, so long as he used the tools and facilities provided for him to carry out his job.

It appears that the sword is his official weapon as he was there in his capacity as
the bodyguard to the Sovereign. This is so notwithstanding that he sought a private
conversation as he was not off duty.

In relation to the action of Walter, his act of driving into the Filthyrych Embassy
would give rise to a breach of the Vienna Convention on Diplomatic Relations concerning
the inviolability of the embassy premises. See Article 22.

The firing of the shots into the air would also constitute such a breach as it does
not amount to a peaceful protest as discussed in the Libyan People’s Bureau Incident.

If the firing of the shots caused the prince to panic which resulted in the glass
being broken which cut his hand, again he would be liable for breaching Article 29
concerning the inviolability of the person of the prince.

However, if Walter is a member of the ambassador’s household he would enjoy

the same immunities as his father, hence he would not be liable for suit in the court of
Squim. for speeding or the acts which occurred at the embassy itself unless immunity is
waived as stipulated in Article 32.

The actions of the embassy guards at Filthyrych may be justified on the ground of
self defence. This can be distinguished from the case of the Libyan People’s Bureau as
that was a peaceful demonstration hence there was no need to fire a weapon. Here the
embassy is “under” attack and it does not appear that any Squim police were around.

The action of the Squim troops in surrounding the embassy of Rych and firing
rounds into the air suggests a breach of the said convention and said articles. This is so
even if it is felt the embassy is being misused.

The better option is always to sever diplomatic relations or a more valid measure
would be to ask the State of Rych to withdraw the ambassador and his family. Failure to
do so can - declare persons persona non grata under Section nine of the Convention.

Again since neither the ambassador or his son felt safe this goes against freedom
of movement since cannot leave the embassy.
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In relation to the request for violation of Filthyrych [sovereignty] the State of

Filthyrych would have to be claiming prescriptive jurisdiction on the protective principle.

The offences occurred in the State of Squim . Therefore the argument would have
to proceed from the premise that the acts affected their vital interest. It is clear that since
the act occurred at the embassy this is a plausible argument. But it must be remembered
that the acts were done in a rage to extract revenge. Hence, one can argue it was not
aimed at affecting their vital interest.

In any event it is very unlikely that the State of Rych would extradite him as to do
so would breach their constitutional law. This is so not notwithstanding that a State
cannot invoke its internal law to contract out of an international obligation.

There is no requirement that a State extradite. This is especially so here where it

would breach a fundamental law. See the Lockerbie case.

Moreover Rych has offered to try Walter. It must always be remembered that a
person is only immune in the receiving state not the sending state.

Hence since Rych more likely than not would have custody can try him under the
nationality principle.

This would be the same [regarding] extradition in relation to the request by the
State of Squim particularly since the punishment if convicted would result in the death
penalty. This is particularly so if there is no death penalty in Rych.

The State of Squim must allow the ambassador and his son to leave. For the
Vienna Convention on Diplomatic Relations imposes a special duty on the State to
uphold the provisions even in time of armed conflict.

The response of the Squim authorities seems to suggest that it condones the action
of the Military. Therefore it would even be easier to impute liability to the State. See the
case of Diplomatic and Consular Staff in Tehran where similar remarks gave rise to
imputation even though the actors were not organs of the State.

Therefore I would advise the State of Rych to bring an action on behalf of the
ambassador and his son against the State of Squim since the principles laid down in the
Marvommatis case seem to be fulfilled.

GRADE

ANSWER 2 (B+)
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The first issue to be dealt with is the hitting of the Prince Regent of Squim by the
Ambassador of Rych. The Prince of Squim, if he is the head of State of that a territory is
entitled to State immunity according to s.20 of the State Immunity Act ( UK ). (It is
assumed that the UK laws are similar and so are similarly applicable). This Act says that
in relation to the immunity of the head of State the Diplomatic Privileges Act applies,
which incorporates the relevant section to be discussed, of the Vienna Convention on
Diplomatic Relations 1961. S. 29 of the Convention says that the person of a diplomatic
agent (here head of state) is inviolable and so the State of Rych , here the receiving state,
is under a duty to protect him from violations. This however is clearly not an absolute
duty and so may not be liable in this case. It must be note however that the Ambassador
being the head of the diplomatic mission according to Art. 31 of the Convention is
immune from criminal or civil liability, but again this might not be applicable here since
it is the State of Squim which demands his extradition and the immunities only.... So
here it does not matter whether or not the act was committed in the course of his duties as
he is still in post and so currently could not be prosecuted.

The Actions of the Bodyguard

It was stated before the Ambassador is inviolable and so any offence against his
person constitutes a breach of those duties to protect him. Here however it is the Chief
Bodyguard of the Prince who commits the attack. According to Art.37 the private
servants of the staff of the mission are exempted only from the liability. The domestic
servants are exempted from acts done within the course of their duties. Here it can be
said that the acts done were in the course of his duties (protecting the Prince). It should
however be note that this section is inapplicable here because the person entitled to
diplomatic immunity is not immune from liabilities within his own state.

The family of the diplomatic agent, who from a part of his household according to
Art. 37 at the Convention is immune from criminal and most civil liabilities. So here he
should be immune. Note however that the State of Squim should be liable for failure to
protect/defend the inviolability of the premises of the diplomatic mission (Art. 22). The
first offence against this inviolability therefore would be the crashing through the gates of
the Embassy. The second offence would be the firing on the compound so here the
Squim authorities would have failed to protect the Filthyrych Embassy and so should be
liable to Filthyrych.

The Actions of the State of Squim

As mentioned the premises of the mission are inviolable. So the issue arises as to
whether Squim is in violation for their failure to comply with their duty. It is suggested
that they are, as even in cases such as for example that in Sun Tat Sem - where the
government is clearly of the view that the diplomatic privilege is being abused as the
premises is being used for purposes incompatible with its functions (Art.41(3)) it still
cannot violate the premises. It is suggested that even contrary to British sentiment in
relation to Libyan People’s Bureau Incident Case even after relations have been broken
the state cannot violate the premises and must still protect it (Art. 45). So here although
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it is clear that diplomatic privileges have been abused they are supposed to obey the laws
and regulations of the receiving state at (Art. 41(1)) it is submitted that they still might
not enter. The most they could do was to declare the offenders persona non grata (Art.
9).

Further Squim has violated Art. 26 which proves for freedom of movement as
they are afraid to leave the Rych Embassy compound.

Fithyrchy’s Demand for Extradition

Walter is only immune from prosecution in State Squim the receiving state. So
State Rych might be able to extradite. It however must have the prescriptive basis for
asserting jurisdiction. It is suggested that the best grounds would either be the protective
principle (threat to Filthyrych’s safety) or passive personality principle if any of the
citizens were harmed. Here, in some cases, states do not provide for extradition of their
own nationals which is clearly the case here. Since Rych however has offered to
prosecute, then it is suggested that they should be allowed to keep them.

Squim

Most States do not allow extradition to places that carry the death penalty for the
offences charged. But here Squim has already jurisdiction. It is not certain that they
could get a fair trial because of obvious anti-Rych sentiment - might not apply here as
again they have enforcement jurisdiction. But note that both the Ambassador and the son
are immune from criminal liability and so can not be prosecuted there unless jurisdiction
is waved (Art. 32), which it is clear will not happen. The best course therefore is for
them to return to Rych. Squim is liable to State Rych for the breaches of diplomatic
immunity. Can bring action to International Court of Justice.

GRADE
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ANSWER 3 (F)

It is obvious that the oil belongs to the State of Squim . The Rych Embassy,
situated in Squim, is viewed by the Vienna Convention and the Diplomatic Immunity Act,
as part of the State of Rych . The Prince Regent seems a bit naive in endeavouring to
digest a gold-coated chocolate - but when the Ambassador whacks him on his back, it is
obvious that he is trying to save the Prince’s life. He is by no means trying to harm the
Prince.

Captain Earnest seems overly impulsive when chopping the Ambassador’s hand.
However, this may be considered a crime against the Ambassador since it has been
committed in the Embassy - the laws of Squim do not apply here. It is the laws of Rych
to which even Earnest and the Prince are subject, whilst on the Embassy’s premises. The
Ambassador - even if he were subject to the laws - enjoys diplomatic immunity. Thus, he
is not to be punished for any act in the furtherance of his duties.

Walter’s actions are even more foolhardy than those of Captain Earnest. First of
all, he enters foreign property when he drives through (literally) the gates of the
Filthyrych Embassy. He clearly commits a wrong in the eyes of both municipal and
international law. The troops of the State of Squim should not surround the Rych
Embassy. The property is protected under international law and local authorities have no
jurisdiction over the territory.

Rych would be in clear violation of its constitution if it were to allow Walter to be

extradited.

The Ambassador and his son are diplomatically immune, according to the
Convention. Thus, they are not be tried criminally in the State of Squim . Squim may,
however, declare the Ambassador “persona non grata” and send him back to Rych. As
an Ambassador under the provisions of the Convention, he has a right to the protection of
his dignity by the State in which he serves.

The fact that the authorities refer to the Ambassador and his son as “dogs” shows
that the Squim authorities themselves are violating principles of international law. They
are also failing to provide adequate protection for the security of the person of the
Ambassador and his family (son).

The State of Squim would be unreasonable to want to try the Ambassador for a
criminal offence - he was acting in the interests of the Prince Regent. In fact, he saved
his life. The draconian law which purports that the Ambassador is to be punished for his
act is ludicrous. Obviously, the clothes that the Prince wears, the cars he may travel in -
are all made by foreigners. They have been “touched” by foreigners and so, when the
Prince wears the clothes or sits in the car, his body is, in effect, being touched by many
foreigners! All in all, the principle, of public international law would take precedence,
since all parties to the Convention have agreed to the immunity of state diplomats.
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Troops of the State of Squim are committing an offence when they surround the
Embassy and fire shots in the air - they do so “wildly”. This is in violation of the
agreement to protect the Ambassador and his family by the principle, of international
law. The Embassy itself should not be subject to this type of violation, since it is to be
considered as part of Rych.

According to the Vienna Convention, The State of […]

[student answer trails off without ending]

GRADE
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Grade awarded for Answer 1: A+

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Grade awarded for Answer 2: B+

Grade awarded for Answer 3: F