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Diplomatic extraterritoriality
Published on 26 August 2012
Updated on 01 October 2024
Updated on 01 October 2024
I’ve just woken up after many hours of driving, shopping, and cooking (I believe in cooking as chain production). As I am going through the backlog of mail, I’m struck once more by the power of analogy, which Katharina loves. The Assange case also crosses the screen, and the juxtaposition creates a mirror effect that maybe illuminates both subjects. Or I may be wrong.
Ambassadors were ‘inviolate’, that’s an old rule. As Jovan says: ‘Better to listen to the messenger than to eat him’, thus perpetuating diplomatic lore that human apes relate poorly to strangers. In fact, about one third of social relation links of the hunter-gatherer depended on diplomacy. And Olduvai is replete with traded flint: trade is one of the oldest activities of hominids and a unique behaviour among apes. Diplomats and traders were always commixed.
Until the Renaissance, ambassadors were itinerant, if I remember my Garrett Mattingly correctly. These were peace-keeping missions, and at the end, the ambassador withdrew, yielding the floor to arms or peace. In this framework, ‘inviolate’ applied primarily to the ambassador’s person, his family, and retinue. Ambassadors were often neutral ‘peace-makers’ and their expenses were paid by the guest country.
It was probably Venice, a city of traders, that first saw the need for resident ambassadors-traders. The concept of inviolate now had to be redefined with respect to residence. I suspect that by analogy to the concept of a territorial exclave, the one of ‘extraterritoriality‘ crept in. Symmetrically, the ambassador’s country took over responsibility for the upkeep, clearly demarcating the separation.
The analogy was rickety from the beginning, as they mostly are. Were the ambassador’s own commercial activities extraterritorial? I doubt it. Difficult to prove, because the Porte, for example, was not beyond putting resident ambassadors in jail to expedite negotiations with the foreign capital. I imagine that at the time, any local business interests the man might have had would have been hostage to diplomatic fortunes. Could the ambassador extend the extraterritoriality analogy to cover third-party business? Again, I doubt it.
Then there is the ‘dark side of diplomacy’. I’ve lamented in an old blog entry the ‘holier than thou’ attitude that permeates diplomatic studies. On a grumpy day (and I have quite a few of them), I’d maintain that diplomacy cannot be taught without illuminating the cloak-and-dagger activities that undergird diplomacy. Iran is a good recent case. In 1953, Kermit Roosevelt, from the basement of the USA embassy in Tehran, masterminded the overthrow of prime minister Mossadeq. The Iranian people never forgave or forgot this: among the first things they did after the overthrow of the Shah in 1979 was to invade the USA embassy, lest a coup be launched.
Does ‘extraterritoriality’ cover cloak-and-dagger activities? Does it cover political interference, spying, or even state-sponsored terrorism? Imagine a rudimentary A-bomb smuggled into the embassy, and the ambassador, in a suicidal vein, threatening to blow himself up with it unless his country gets what it wants? The subject for the next 007 James Bond movie, except that few capitals are exotic enough to serve as background. And what about personal behaviour? Could the ambassador kill his partner with impunity inside the embassy, or shield a common criminal?
Were extraterritoriality absolute, it would be of no concern to the local government, just as any other foreign murder is. The likely answer for the host country would be to say that such acts are ‘inconsistent with diplomatic activity’, and the ambassador would be expelled. The misunderstanding brought in by the use of the analogy of extraterritoriality becomes clearer. A state is fully sovereign on its own territory. This is not the case with diplomatic extraterritoriality – the seat of an embassy. Diplomatic extraterritoriality is not absolute, as the analogy would dictate, but instrumental: it has to be used for diplomatic purposes.
To highlight the instrumental, rather than sovereign, character of diplomatic extraterritoriality: Campione is an Italian exclave within Switzerland; all merchandise and personal traffic genuinely going to and fro is none of Swiss business. Assange would be better situated in an Ecuadorian Campione. The British government grappled with the issue and drew up national law to settle these questions unilaterally, but it was no more than a legal fig-leaf for what is, in the end, political. The next gyration was the emergence of the embassy as ‘sanctuary’. Latin America developed a practice here. The Assange case is its latest declination.
‘Sanctuary’ has a millenarian and religiously tainted tradition; it resonates in our emotions, particularly if we are well-inclined toward the accused. Had the well-known Communist sympathisers fled into the Soviet embassy at the time, how would America have reacted? But is hosting a stranger (who happens to have obtained political asylum in the embassy’s country) a genuine ‘diplomatic activity’? If the analogy of extraterritoriality is absolute, the answer is yes. If the analogy is instrumental, I’d tend toward a no.
You decide. I’ll go take a shower; it’s 30°C already. It addled the befuddled brain.
PS: A factoid has just arrived at my attention. After Galileo Galilei (1564–1642) had been condemned by the Church in 1633, he was sentenced to house arrest. He was handed over to the ambassador of the Tuscan duke, and kept in the embassy in Rome until transferred to his home in Arcetri. This was not a diplomatic matter, merely an example of the practice by which the ‘spiritual’ Church downloaded on the civilian authorities the task of executing its own judgments. Poor Giordano Bruno was burned by the ‘civilian authorities’, though in papal Rome.
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You are right….. Diplomatic
You are right….. Diplomatic immunities are based on functional necessity. Premisses of the mission are inviolable because of their function (not legal fiction of exterritoriality).