Indonesia and China Question Use of Embassies for Spying

Voice of America is reporting that the U.S. Embassy in Jakarta (like the U.S. Embassy in Berlin) was apparently used by the NSA for spying on President Susilo Bambang Yudhoyono.  Indonesia is seeking an explanation from the United States.  It also appears that that Australia permitted covert NSA programs to operate in “its embassies in Indonesia, Thailand, Vietnam, China and East Timor.”   My prior post focused on immunity from domestic criminal prosecution for US. nationals working at U.S. Embassies as members of the administrative and technical staff.  The new reports raise additional questions, including whether U.S. nationals who might work (not at U.S. Embassies) but instead at the Australian Embassies are entitled to immunity as members of the administrative and technical staff?   Article 8 of the Vienna Convention on Diplomatic Relations, imposes some limits on the nationality of the members of the “diplomatic staff”, but this would not include administrative and technical staff, unless they hold diplomatic rank.  As well, nationals of the receiving state (the state in which the embassy is located) are not entitled to immunity as members of the administrative and technical staff, except as permitted by the receiving state itself.  Articles 37(2); 38(2).  There are no similar limitations on the immunity of nationals of third party states, however.  So U.S. nationals working as administrative and technical staff for the Australian embassy in Thailand, for example, appear to be entitled to the same protections as Australians would be. On Thursday, the Chinese foreign ministry also asked the United States to explain its use of Australian embassies for spying, suggesting that such use may be in tension with the Vienna Convention on Diplomatic Relations.   Under the VCDR, “the premises of the mission must not be used in any manner incompatible with the functions of the mission as laid down in the present Convention or by other rules of general international law..” Art. 41(3)(d). The functions of the diplomatic mission include “protecting in the receiving State the interests of the sending State and of its nationals, within the limits permitted by international law” and “ascertaining by all lawful means conditions and developments in the receiving State, and reporting thereon to the Government of the sending State”.  Articles 3(1)(a) and (d). Assuming that “ascertaining”  “conditions and developments” includes spying, the question becomes whether “lawful” refers to domestic law, international law, or both.  The answer is not immediately apparent from the text, which in places specifies international law or the laws of the receiving state.   In light of the term “international law” in 3(1)(a),  subsection (d) is probably best read to mean something different (i.e. both, or domestic law).  On whether spying itself violates international law, see Prof. Anne Peters here (in German), who also discusses the possibility of case before the International Court of Justice based on the VCDR.   Note that the “functions of the mission” issue is relevant to whether the conduct at the Embassy violated the Convention itself, and it may also be relevant to the issue of diplomatic immunity. “Administrative and technical staff” are those employed in “service of the mission,” so people not working its service may not be entitled to immunity, although Article 10 is also significant. In any event, the obligations under the VCDR presumably go to how a country uses its own Embassy – not how it uses the Embassy of another country.  As a legal matter, Australia may be the better state for China to press for answers, but as a matter of politics, the U.S. is clearly the better target.