Straight Dope Staff Report: Are a country's foreign embassies an extension of its territory?

A Staff Report by the Straight Dope Science Advisory Board

Are a country's foreign embassies an extension of its territory?

19-Dec-2006

Dear Straight Dope:

If the land on which a foreign embassy sits is considered the property of the country it represents, how does that land become property of another country? Let's pretend another country, say, Macaronia, has an embassy in New York City. If they wish to move their embassy to Chicago or Los Angeles, what is the legal process that must be followed in order for the private land in the U.S. to become Macaronian? Who pays for it? And what about the property they left behind in the Big Apple? —Ken D., Iowa

SDSTAFF Gfactor replies:

First we need to address a problem with your initial premise, Ken: It's wrong. While some have claimed an embassy is the territory of the country it represents, that theory has been rejected by the courts. For example, Barry Carter and his coauthors, in their textbook on international law, say, "Contrary to popular belief, however, diplomatic mission and consular post properties are not extensions of the sending state's territory. Both in fact and in law, diplomatic premises are within the territory of the receiving state."

What causes the confusion is the general rule that diplomatic missions are inviolable. That means the receiving state's police can't enter an embassy without the sending state's consent. It doesn't mean the receiving state's laws don't apply there. For example, embassies must comply with local building and fire codes. While those codes can't be enforced directly, the receiving state is authorized to "withhold benefits" from sending states that do not comply with local laws.

Several U.S. court cases address the embassy-as-foreign-territory theory. In one case, protestors refused to leave the Iranian embassy. The head of the embassy waived inviolability and invited the police to enter and arrest the demonstrators. In court, the demonstrators argued that they had not violated any U.S. laws because they were in the Iranian embassy, and hence (so they thought) on Iranian territory. The court didn't buy the argument. Similarly, two courts ruled that American hostages held in the American embassy in Iran couldn't sue the Islamic Republic of Iran after Iran asserted a defense under the Foreign Sovereign Immunities Act. The courts held that the embassy wasn't U.S. territory and denied the plaintiffs relief.

Having gotten that straightened out, we can answer your question. In the United States, the Office of Foreign Missions manages acquisition of property by foreign countries for use as missions. The Foreign Missions Act of 1982 governs the office's powers. Nevertheless, diplomatic immunity and the inviolability of missions can cause problems for landlords. For example, in 767 Third Avenue Associates v. Permanent Mission of the Republic of Zaire to the United Nations, the Second Circuit Court of Appeals held that Zaire's mission to the United Nations could not be evicted despite its failure to pay rent.

In Fagot Rodriguez et al. v. Republic of Costa Rica, the plaintiffs, the Fagots, leased space to the Fourniers, who were general consul and vice-consul of Costa Rica. The lease included a clause requiring the premises to be used as a residence only and prohibited subletting. The Fourniers ignored this provision and began operating the Costa Rican consulate on the property. They also failed to pay rent. The Fagots terminated the lease, but the Fourniers stayed put and maintained the consulate for 16 months.

The Fagots sued the Fourniers, the Costa Rican consulate, and the government of Costa Rica. The court found the two government entities were immune from suit under the Foreign Sovereign Immunities Act, but ordered the Fourniers to pay the Fagots approximately $80,000. The Fagots were fortunate the Fourniers removed the consulate — it would have been close to impossible to evict it without Costa Rica's consent.

A different set of problems arises when a diplomatic delegation abandons its mission (mission in this case refers to diplomatic or consular property). In the United Kingdom as in the United States, the host government can acquire title to abandoned missions. This happened with the Cambodian embassy in London, which embassy personnel closed after the Pol Pot takeover in 1975, handing the keys over to the Foreign Office. The UK withdrew recognition of the Cambodian government in 1979, and soon squatters moved into the embassy. At the time, the government lacked statutory authority to do much about the situation. But in 1988 the Consular Premises Act empowered the secretary of state to acquire the property, which he proceeded to do. The squatters challenged the secretary's actions in R. v. Secretary of State for Foreign and Commonwealth Affairs, ex parte Samuel. The court ruled in favor of the secretary and the court of appeal upheld the decision.

A related issue is diplomatic asylum. Contrary to popular belief, the right of asylum isn't universally recognized under international law. Some treaties permit a state to grant political asylum – for example, the Convention on Diplomatic Asylum (Caracas 1954). The convention was negotiated under the auspices of the Organization of American States, but only 14 countries ratified it. Among those states there's a right of asylum in "any seat of a regular diplomatic mission, the residence of chiefs of mission, and the premises provided by them for the dwelling places of asylees when the number of the latter exceeds the normal capacity of the buildings," all of which are called legations under the treaty. The treaty gives the state from which asylum is sought the right to grant asylum or deny it. Asylum in the absence of a treaty was almost put to the test when the Vatican embassy in Panama gave Manuel Noriega asylum, but he surrendered before the claim was adjudicated.

Another issue arose when the U.S. padlocked the building that contained the Yugoslavian consulate and other tenants. In 767 Third Avenue Associates v. United States (1995), a federal court held that the government's actions in seizing the mission's assets and barring entry to the building for three months did not amount to a compensable taking of the landlord's leasehold rights. The court reasoned that the landlord had no "reasonable investment-backed expectation … that its leases to the [tenant] would proceed totally without interference by the government."

References

Carter, Barry et al., International Law (4th ed., 2003)

Department of State Jurisdiction, American Association of Motor Vehicle Administrators: http://www.aamva.org/NR/rdonlyres/97EF8ADF-6D42-4AD0-BFB6-DDD46A83E6CC/0/drvDeptOfStateJurisdictionBackground.pdf

Foreign Missions Act of 1982, 22 U.S.C. §4301, et. seq: http://www.state.gov/documents/organization/17842.pdf

Fagot Rodriguez v. Republic of Costa Rica, 297 F.3d 1; 2002 U.S. App. LEXIS 14162 (1st Cir. 2002): http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=01-1713.01A

Romano, Jay, "YOUR HOME: Diplomats And Their Immunity," New York Times, March 31, 1996: http://query.nytimes.com/gst/fullpage.html?res=9E02E2DE1239F932A05750C0A960958260&sec=&pagewanted=1

Shaw, Malcolm, International Law (5th ed., 2003)

Sidley Austin Brown & Wood, LLP, "Loan and Mortgage Transactions with Foreign Persons Entitled to Immunity," July 2002: http://www.sidley.com/db30/cgi-bin/pubs/Loan%20Mortgage.pdf

Siegler, Richard, and Talel, Eva, "Diplomatic Immunity Revisited," New York Law Journal, January 6, 2005: http://www.stroock.com/SiteFiles/Pub319.pdf

United States Department of State, Office of Foreign Missions, "Real Property, Taxation & Parking FAQ": http://www.state.gov/ofm/resource/30294.htm

Weis, Lois, "Foreign leases raise questions: overseas' governments need special handling as tenants," Real Estate Weekly, July 26, 1995: http://www.highbeam.com/doc/1G1-17351639.html

Weiss, Lois, "Owners and lawyers react to recent embassy decisions," Real Estate Weekly, July 26, 1995: http://www.highbeam.com/doc/1G1-17351641.html

Winiarsky, Nativ, and Zelman, Abner, "Obstacles Arise When Tenant is Foreign State," New York Law Journal, September 30, 2002: http://www.kuckerandbruh.com/pdfs/winiarsky_nylj_20020930.pdf

—SDSTAFF Gfactor
Straight Dope Science Advisory Board

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Staff Reports are researched and written by members of the Straight Dope Science Advisory Board, Cecil's online auxiliary. Although the SDSAB does its best, these articles are edited by Ed Zotti, not Cecil, so accuracywise you'd better keep your fingers crossed.

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