LL.M., Lecturer of Public International Law, University of Tartu
The Siege of the Estonian Embassy in Moscow: Protection of a Diplomatic Mission and Its Staff in the Receiving State
States establish diplomatic missions and send both diplomatic and non-diplomatic staff abroad in order to represent and protect their interests and those of their nationals. Such missions and personnel are granted different privileges and immunities in the receiving states so that they can perform their official functions as independently and efficiently as possible. These guarantees are supposed to prevent attacks on diplomatic missions and their staff by both public officials and private persons and are intended to avoid any other obstacles to performance of their official functions. In reality, there is not often need for such a protection - states refrain from interfering, as they are interested in mutually friendly relations and wish their own diplomatic missions and the staff thereof to have the widest possible freedom to operate in the respective receiving states. The principle of reciprocity is the most effective means against breaches of diplomatic law. Nevertheless, there are still occasions on which the privileges and immunities provided become indispensable to ensuring the normal functioning of a diplomatic mission and the physical safety of its staff. The danger may originate from local authorities as well as from private persons or their groups, acting independently or under the order of the receiving state. Sometimes the receiving state chooses to ignore completely its obligations and allows the threatening situation to continue. The Estonian embassy in Moscow, which was subjected to threats, attacks, and blockade from 27 April to 5 May 2007, serves as an excellent example in this context. The incident in question illustrated that Russia sometimes displays a rather unusual understanding of the content and meaning of diplomatic privileges and immunities and of the obligations of the receiving state where the protection of a diplomatic mission and its staff is concerned. That incident was hardly an everyday happening; it will more likely serve in future textbooks as an example of flagrant breaches of diplomatic law. The present article discusses the nature and scope of the protection of the diplomatic mission and its staff and the obligations of the receiving state in ensuring such protection. Attention is focused on aspects of physical protection (obviously lacking in this incident), leaving aside judicial immunity and other privileges guaranteeing freedom of action. The article assesses the events in the vicinity of the Estonian embassy in Moscow in the light of diplomatic law as well as that of state and court practice.
The siege began because the Estonian government decided to move a problematic war memorial from the middle of Tallinn. The Bronze Soldier has a turbulent and contradictory history. It was originally erected to honour Soviet soldiers who had 'liberated' Tallinn and fallen in the Great Patriotic War against Nazi Germany. The Soviet theme was revised when Estonia regained its independence; the monument was dedicated to all those who had fallen in the Second World War.
After Estonia regained independence, the monument did not receive much attention. However, in more recent years, the Bronze Soldier had gained significant symbolic value for the local Russian community of post-war immigrants, symbolising the Soviet victory over Nazi Germany and their claim to rights in Estonia. By contrast, Estonians considered the monument to be a symbol of the Soviet annexation and its repressive regime. Since 2006, several intense quarrels (although not violent) took place between Estonians and Russians around the Bronze Soldier. There were strong calls to remove the Soviet monument from the middle of the capital of Estonia. The positions of the Estonian and Russian communities on the question were sharply divided. Finally, in April 2007, the Estonian government started preparations to exhume the remains of the Soviet soldiers buried under the monument and to rebury them in a more fitting place (because of the surface design, people were walking on the unmarked graves) and also to relocate the monument itself to the cemetery of the Estonian Defence Forces. The police surrounded the area on 26 April. The disagreement over these activities led to two-day massive protests, riots, and looting - the worst Estonia has ever seen - mostly by ethnic Russians. In the wake of these and related events, the Estonian government decided to remove the monument immediately, in contrast to the more methodical approach originally intended. The Bronze Soldier with its accompanying stone wall was removed on 27 April and the monument re-erected on 30 April (the stone wall was rebuilt later). DNA profiles were taken from exhumed remains and handed over to the Russian embassy so that relatives could reclaim the remains and rebury them elsewhere. Relatives claimed four sets of remains. Unclaimed remains were reburied at the military cemetery close to the Bronze Soldier.
As a protest, several youth organisations staged a virtual siege on the Estonian embassy in Moscow. For nine days, the protestors disturbed the peace of the embassy, prevented staff and visitors from entering or leaving the embassy, and physically attacked the embassy and the ambassador. The flagrant breaches of diplomatic law were possible on account of the toleration of these acts by the Russian authorities.
According to long-established and universally recognised practice, receiving states must guarantee certain privileges and immunities to the diplomatic missions established in their territories and to diplomatic and non-diplomatic staff sent there. Such privileges and immunities are codified in the Vienna Convention on Diplomatic Relations (1961)1. It stresses that the purpose of these privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions representing states2. Indeed, if a diplomatic mission and its staff were subject to the jurisdiction of the receiving state in the same manner as everyone else and therefore completely dependent on its goodwill, their actions potentially would be influenced to such an extent that the performance of the functions entrusted to them by the sending state is hampered. However, the privileges and immunities are necessary not only when the staff is exercising official functions but also, at least to some extent, in regard of their private actions, as the receiving state can influence their independence equally through their private life. For a similar reason, family members are considered an extension of a member of diplomatic or non-diplomatic staff and must also be protected3.
From the perspective of physical protection, there are three important guarantees:
Inviolability of the premises
Freedom of movement
The first two of these were considered so important by the signatory states that the Vienna Convention does not include any exceptions from these inviolabilities4. They constitute basic norms that are respected by all civilised nations and that rarely are violated; even when they are violated, the problem stems from extreme circumstances or, at worst, unawareness on the part of the actor concerned or the responsible person. The International Court of Justice has emphasised in the Teheran case that such obligations "are not merely contractual obligations [under the Vienna Convention], but also obligations under general international law"5.
The inviolability of the premises is an undeniably established norm of international law according to which the premises of a diplomatic mission physically present in the territory of the receiving state are not subject to the jurisdiction of the receiving state in the same manner as other property is6. In the present context, there are two important aspects of inviolability of the premises: 1) the agents of the receiving state may not enter the premises of the mission, except with the consent of the head of the mission7 , and 2) the receiving state has a special duty to take all 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 dignity8.
The prohibition from entering the premises of the mission imposes a negative obligation - to refrain from corresponding action. The inviolability of the premises is absolute, meaning that the premises of the mission may not be entered even by the police chasing a criminal or by fire-fighters if there is a fire on the premises of the mission. Entry is not even allowed if the receiving state has serious reason to believe that the premises of the mission are being used in a manner incompatible with the functions of the mission9. For example, if the premises of the mission are used for smuggling weapons or narcotics or for organising terrorist attacks, the receiving state may merely ask for the assistance of the sending state to stop such activities occurring at its diplomatic mission. The first draft of the Vienna Convention included a right of the receiving state to enter the premises of a mission in cases of extreme emergency in order to eliminate...