United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran) (1980)

It is the leading case on diplomatic and consular inviolability, and simultaneously the leading illustration of Article 11 of the Articles on State Responsibility: conduct not attributable at the outset becomes an act of the State once the State acknowledges and adopts it. The two phases of the case must be kept apart, because the legal analysis of each is different.

On 4 November 1979 militants attacked and occupied the United States Embassy in Tehran and took its staff hostage. The following day the Consulates at Tabriz and Shiraz were also seized. The attacks were executed by militants who did not have an official character and succeeded because of a lack of sufficient protection.

On 17 November 1979 the Ayatollah Khomeini issued a decree asserting that the Embassy was a centre of espionage and conspiracy and that those who had hatched plots there did not enjoy international diplomatic respect. He declared that the premises and the hostages would remain as they were until the United States handed over the former Shah for trial and returned his property, qualifying this only by requesting the militants to hand over certain hostages to the Ministry of Foreign Affairs for expulsion. Other Iranian authorities complied and repeatedly endorsed the policy. The Court's Order of 15 December 1979 indicating provisional measures, calling for restoration of the Embassy and release of the hostages, was publicly rejected the next day and ignored. The Chargé d'affaires and two members of his staff were withheld protection and facilities to leave the Ministry of Foreign Affairs in safety.

1. Is the initial attack attributable to Iran?
2. If not, does Iran bear responsibility for the first phase on some other basis?
3. What is the effect of the decree of 17 November 1979 and the subsequent endorsements?
4. What further breaches arise from the continued detention and the threats of trial?

The initial attack was not in itself imputable to Iran, but Iran was responsible for the first phase because of its own failure to protect. The approval and the decision to perpetuate the occupation transformed the situation and made the militants agents of Iran. The continued occupation and detention were repeated and multiple breaches, more serious than the first.

Phase one: not attributable, but not innocent. The decree by the Ayatollah on the evening of the attack and other statements of official approval, though highly significant for the second phase, "do not alter the initially independent and unofficial character of the militants' attack on the Embassy." The same applies to the Consulates at Tabriz and Shiraz.

But: the conclusion that the initiation of the attacks cannot be considered as in itself imputable to Iran "does not mean that Iran is, in consequence, free of any responsibility in regard to those attacks ; for its own conduct was in conflict with its international obligations." By a number of provisions of the two Vienna Conventions Iran was placed "under the most categorical obligations, as a receiving State, to take appropriate steps to ensure the protection of the United States Embassy and Consulates, their staffs, their archives, their means of communication and the freedom of movement of the members of their staffs."

The Court then walked through the provisions, and the emphasis it placed on the words is worth reproducing. After proclaiming the inviolability of mission premises, Article 22(2) of the 1961 Convention continues: "The receiving State is under a special duty to take al1 appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity." After proclaiming that the person of a diplomatic agent is inviolable and not liable to arrest or detention, Article 29 provides: "The receiving State shall treat him with due respect and shall take al1 appropriate steps to prevent any attack on his person, freedom or dignity." (read all)

Archives and documents are inviolable at any time and wherever they may be under Article 24; Article 25 requires full facilities for the performance of the functions of the mission; Article 26 requires freedom of movement and travel; Article 27 requires free communication for all official purposes to be permitted and protected. Analogous provisions govern consular missions.

And the crucial characterisation: "the obligations of the Iranian Government here in question are not merely contractual obligations established by the Vienna Conventions of 1961 and 1963, but also obligations under general international law." Diplomatic inviolability is not merely treaty law; a State that denounced the Conventions would still owe it.

Phase two: adoption transforms the act. The Ayatollah's policy of maintaining the occupation and the detention as hostages, for the purpose of exerting pressure on the United States, was complied with by other authorities and endorsed repeatedly. "The result of that policy was fundamentally to transform the legal nature of the situation created by the occupation of the Embassy and the detention of its diplomatic and consular staff as hostages. The approval given to these facts by the Ayatollah Khomeini and other organs of the Iranian State, and the decision to perpetuate them, translated continuing occupation of the Embassy and detention of the hostages into acts of that State. The militants, authors of the invasion and jailers of the hostages, had now become agents of the Iranian State for whose acts the State itself was internationally responsible."

That is Article 11 of the Articles on State Responsibility in operation, before it was drafted.

The Court added a point about the quality of the detention: the hostages' situation was aggravated because detention by militants did not offer even the normal guarantees afforded by police and security forces subject to discipline and the control of official superiors.

The breaches enumerated. The decision to continue the occupation and detention "clearly gave rise to repeated and multiple breaches of the applicable provisions of the Vienna Conventions even more serious than those which arose from their failure to take any steps to prevent the attacks". Article 22(2) was breached afresh; Article 22(1) and (3) were infringed, since they forbid agents of the receiving State to enter mission premises without consent or to undertake search, requisition, attachment or like measures; Article 29 was continuously breached; Articles 25, 26 and 27 and the corresponding consular provisions were breached as to facilities, movement and communications; and Article 24 of the 1961 Convention and Article 33 of the 1963 Convention on the absolute inviolability of archives were breached, made manifest by the militants' claims to possess documents from the archives. The continued detention of two private individuals of United States nationality breached Article II(4) of the Treaty of Amity of 1955.

The Chargé d'affaires. The Iranian authorities withheld from the Chargé d'affaires and two members of his staff the necessary protection and facilities to leave the Ministry in safety, a continuing breach of Articles 26 and 29, which over a long period amounted to detention in the Ministry.

The threat of trial. The Court stressed the point in advance of any trial taking place. If the intention to submit the hostages to any form of criminal trial or investigation were put into effect, that would constitute a grave breach of Article 31(1) of the 1961 Convention, which states in the most express terms: "A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State." And compelling a hostage to bear witness would violate Article 31(2): "A diplomatic agent is not obliged to give evidence as a witness."

Diplomatic law is a self-contained regime. This is the passage that answers the plea of abuse, and it is examinable on its own. Members of a mission have a duty to respect the laws and regulations of the receiving State and not to interfere in its internal affairs, and Article 41(3) of the 1961 Convention provides that "The premises of the mission must not be used in any manner incompatible with the functions of the missions". It is "for the very purpose of providing a remedy for such possible abuses of diplomatic functions" that Article 9 allows the receiving State, "at any time and without having to explain its decision", to notify the sending State that a member of the mission is not acceptable, whereupon that State must recall him or terminate his functions. Beyond that, a receiving State "has in its hands a more radical remedy if abuses of their functions by members of a mission reach serious proportions. This is the power which every receiving State has, at its own discretion, to break off diplomatic relations with a sending State and to cal1 for the immediate closure of the offending mission." (read call)

Hence the Court's summary: "The rules of diplomatic law, in short, constitute a self-contained régime which, on the one hand, lays down the receiving State's obligations regarding the facilities, privileges and immunities to be accorded to diplomatic missions and, on the other, foresees their possible abuse by members of the mission and specifies the means at the disposal of the receiving State to counter any such abuse." Those means are entirely efficacious, because withdrawal of recognition as a member of the mission will in practice compel departure at once.

The Court then stated the foundation: "the principle of the inviolability of the persons of diplomatic agents and the premises of diplomatic missions is one of the very foundations of this long-established régime, to the evolution of which the traditions of Islam made a substantial contribution." Articles 44 and 45 of the 1961 Convention underline it: even in armed conflict or on a breach of relations, the inviolability of members, premises, property and archives must be respected. The only concession is narrow, that a diplomatic agent caught in the act of an assault or other offence may on occasion be briefly arrested to prevent the commission of the particular crime.

The special circumstances plea. Iran suggested, in imprecise terms, that its conduct might be justified by more than twenty-five years of continual interference by the United States in its internal affairs and numerous alleged crimes, including complicity in the coup of 1953. The Court did not accept that the Application could not be examined divorced from that context; the facts spoke, in its phrase, loudly and clearly of successive and still continuing breaches.

• Structure the answer in two phases. Phase one is responsibility for omission, breach of the duty to protect. Phase two is responsibility by adoption, the militants becoming agents of the State. Marks are lost by running them together.
• The doctrinal proposition to carry away is that diplomatic inviolability rests on general international law as well as on the Vienna Conventions.
• Note the structural point: diplomatic law is a self-contained regime. The receiving State's answer to abuse is Article 9 of the 1961 Convention, notifying that a member is not acceptable, and in the last resort breaking off relations and closing the mission. It is never seizure of the premises or detention of the staff.
• Cross-refer to Article 11 of the Articles on State Responsibility, to Article 50(2)(b) which puts diplomatic inviolability beyond the reach of countermeasures, and to Jadhav and LaGrand for the consular branch under Article 36 of the 1963 Convention.