International law, Sixth edition
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International Law MALCOLM N. SHAW
The Times, 10 September 1988.
328 The Times, 17 August 1989; 83 ILR, p. 232. Note that in Secretary of State for Foreign and Commonwealth Affairs v. Tomlin, The Times, 4 December 1990; [1990] 1 All ER 920, the Court of Appeal held that in this situation, the extended limitation period of thirty years under s. 15(1) of and Schedule 1 to the Limitation Act 1980 was applicable and the squatters could not rely on twelve years’ adverse possession. 758 i n t e r nat i o na l l aw relevant section merely required that the Secretary of State be satisfied that international law permitted such action. 329 In Westminster City Council v. Government of the Islamic Republic of Iran, 330 the issue concerned the payment of expenses arising out of repairs to the damaged and abandoned Iranian Embassy in London in 1980. The council sought to register a land charge, but the question of the immunity of the premises under article 22 of the Vienna Convention was raised. Although the Court felt that procedurally it was unable to proceed, 331 reference was made to the substantive issue and it was noted that the premises had ceased to be diplomatic premises in the circumstances and thus the premises were not ‘used’ for the purpose of the mission as re- quired by article 22, since that phrase connoted the present tense. The inviolability of diplomatic premises, however, must not be confused with extraterritoriality. Such premises do not constitute part of the territory of the sending state. 332 Whether a right of diplomatic asylum exists within general interna- tional law is doubtful and in principle refugees are to be returned to the authorities of the receiving state in the absence of treaty or customary rules to the contrary. The International Court in the Asylum case between Colombia and Peru 333 emphasised that a decision to grant asylum involves a derogation from the sovereignty of the receiving state ‘and constitutes an intervention in matters which are exclusively within the competence of that state. Such a derogation from territorial sovereignty cannot be recognised unless its legal basis is established in each particular case.’ Where treaties exist regarding the grant of asylum, the question will arise as to the respective competences of the sending and receiving state or the state granting asylum and the territorial state. While the diplomats of the sending state may provisionally determine whether a refugee meets any condition laid down for the grant of asylum under an applicable treaty this would not bind the receiving state, for ‘the principles of international law do not recognise any rule of unilateral and definitive qualification by 329 Note that in the US, embassies temporarily abandoned due to broken relations may be sequestered and turned to other uses pending resumption of relations. This has been the case with regard to Iranian, Cambodian and Vietnamese properties that have been in the custody of the Office of Foreign Missions: see McClanahan, Diplomatic Immunity, pp. 53 and 110. See also the US Foreign Missions Act 1982. 330 [1986] 3 All ER 284; 108 ILR, p. 557. 331 See above, p. 748. 332 See e.g. Persinger v. Islamic Republic of Iran 729 F.2d 835 (1984). See also Swiss Federal Prosecutor v. Kruszyk 102 ILR, p. 176. 333 ICJ Reports, 1950, pp. 266, 274–5. i m m u n i t i e s f r o m j u r i s d i c t i o n 759 the state granting asylum’. 334 It may be that in law a right of asylum will arise for ‘urgent and compelling reasons of humanity’, 335 but the nature and scope of this is unclear. The diplomatic bag Article 27 provides that the receiving state shall permit and protect free communication on behalf of the mission for all official purposes. Such official communication is inviolable and may include the use of diplomatic couriers and messages in code and in cipher, although the consent of the receiving state is required for a wireless transmitter. 336 Article 27(3) and (4) deals with the diplomatic bag, 337 and provides that it shall not be opened or detained 338 and that the packages constituting the diplomatic bag ‘must bear visible external marks of their character and may contain only diplomatic documents or articles intended for official use’. 339 The need for a balance in this area is manifest. On the one hand, missions require a confidential means of communication, while on the other the need to guard against abuse is clear. Article 27, however, lays the emphasis upon the former. 340 This is provided that article 27(4) is complied with. In the Dikko incident on 5 July 1984, a former Nigerian minister was kidnapped in London and placed in a crate to be flown to Nigeria. The crate was opened at Stansted Airport, although accompanied by a person claiming diplomatic status. The crate 341 did not contain an official seal and was thus clearly not a diplomatic bag. 342 When, in March 334 Download 7.77 Mb. Do'stlaringiz bilan baham: |
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