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The following archive was created by hippie-mail 7.98617-22 on Sat Apr 10 1999 - 01:18:49
Black Unicorn (unicorn@schloss.li)
Thu, 4 Mar 1999 11:20:45 -0600
Antonomasia wrote to me: (My comments in []'s)
>Black Unicorn wrote last August on 'cryptography@c2.net'
>(in correcting a legal assertion by smb):
> If I come off as a bastard when it comes to legal corrections on occasion
> its because it has become such a commonplace thing for someone with no
> legal background at all to make the wildest assertions out of hand without
> even the foggiest basis in fact and feel completely justified, even
wronged
> if corrected. That sort of thing is dangerous. People tend to rely on
> legalese sounding advice regardless of the source. It's the kind of thing
> that perpetuates myths like "if you send a check for a dollar with a memo
> 'paid in full' written on it, and they cash it, your debt is satisfied" or
> "if your roommate in college dies you get an automatic 4.0 for the
> semester" or my personal favorite "if you are in a foreign embassy you are
> on foreign soil." This is why I don't make comments on e.g. the latest
> 'vulnerability' in SSL.
>This is in the message
> file: 199808241923.maa11118@blacklodge.c2.net
> from: black unicorn <unicorn@schloss.li>
> Date: 24aug1998
> Subject: Re: Armchair lawyers and customs searchs.
> In Reply To: 3.0.3.32.19980824141043.0093bb90@mailhost.sctc.com
> With J. Mark Brooks, Attorney at Law now writing on CodherPlunks
> Under the international
> law of extraterritoriality of embassies, the embassy is a little
> piece of Tonga in a foreign land.
> I wonder what either of you would like to provide by way of proof.
I'd be happy to. Unfortunately, I have to chide my colleague on his
careless analysis of "International Law" in the process.
Let's start with the Vienna Convention on Diplomatic Relations, the basic
tenant of the ins and outs of Embassies, Ambassadors and their various
functions. The treaty, first signed in 1961, has since been adopted by over
166 parties as of 1996 constituting just about every country of note.
(Including Tonga). The United States ratified the convention in 1972. It
should be noted that the convention is primarily a codification of existing
practices in international relations. The treaty provides for the
_Inviolability_ not the extraterritoriality of foreign missions.
I quote from Article I:
For the purposes of the present Convention, the following expression shall
have the meanings hereunder assigned to them:
[...]
(i) the "premises of the mission" are the buildings or parts of buildings
and the land ancillary thereto, irrespective of ownership, used for the
purposes of the mission including the residence of the head of the mission.
Article XXII:
1. The premises of the mission shall be inviolable. The agents of the
receiving State may not enter them, except with the consent of the head of
the mission.
2. The receiving State is under 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 dignity.
3. The premises of the mission, their furnishings and other property
thereon and the means of transport of the mission shall be immune from
search, requisition, attachment or execution.
Article XXX:
1. The private residence of a diplomatic agent shall enjoy the same
inviolability and protection as the premises of the mission.
Article XXXI:
1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction
of the receiving State. He shall also enjoy immunity from its civil and
administrative jurisdiction, except in the case of: [personal activities not
related to the business of the mission, etc.]
More directly:
"The fiction that the diplomatic quarters are actually located in the
territory of the sending state has been abandoned in modern legal theory.
Any offense against local law committed in such quarters is committed in the
receiving state. But the latter cannot enforce its laws in connection with
the offense committed." (Gerhard von Glahn, Law Among Nations 6d at 521).
Generally, In 1958 the Cambodian ambassador to Great Britain was corrected
in the most colorful way when he incorrectly maintained that he had the
right to whip his concubine under the laws of Cambodia while on the Mission
grounds. See: Time, July 21, 1958. See also, Fatemi v. United States, U.S.
Dist Court, D.C., 1963 2d 525, in which the court states "(1) that a foreign
embassy is not to be considered the territory of the sending state; and (2)
that local police have the authority and responsibility to enter a foreign
embassy if the privilege of diplomatic inviolability is not invoked when an
offense is committed there in violation of local law."
Mr. Brooks refers to the "International Law of Extraterritoriality of
Embassies." I've never heard of this "law," nor does Mr. Brooks cite its
codification anywhere. The abandoned _doctrine_ of Extraterritoriality
refers to various exemptions entitled to by the person of a diplomat in the
mission- not the premises of the mission. It first sprung up in the time of
Grotius and was defended by Anglo-Saxon traditionalists even though it was
effectively abandoned decades ago. Specifically, the diplomat's _person_
was not considered to be present in the jurisdiction of the receiving state
for the purposes of local law, prosecution and etc. I am not aware of any
time in which this was applied to the Mission or the residence of its staff.
Today it is accepted practice that no diplomatic person is actually "extra
territorium," but rather that while the diplomat is subject to the
_application_ of local law he still "enjoys immunity from the _enforcement_
of that law as long as his privileged status lasts." (von Glahn at 523).
See Generally, Dinstein, "Diplomatic Immunity from Jurisdiction Ratione
Materiae," 15 Int'l and Comp. Law Q. 76 (1966). See also, U.S. note to the
Republic of Congo (brazzaville), 60 AJIL 90 (1966).
[The full message by Mr. Brooks is attached below]
> -----Original Message-----
> From: Jonathan Mark Brooks
> Sent: Wednesday, March 03, 1999 8:25 PM
> To: CodherPlunks@toad.com
> Subject: Re: Using crypto to solve a part of the DNS/TM mess
>
>
> -----BEGIN PGP SIGNED MESSAGE-----
>
> Well, actually, it depends on whether its operated out of the
> Tongan embassy or a building on the grounds. Under the international
> law of extraterritoriality of embassies, the embassy is a little
> piece of Tonga in a foreign land.
>
> On Wed, 3 Mar 1999, Jim McCoy wrote:
>
> > At 11:52 AM 3/3/99 -0800, bram wrote:
> > >Tonga isn't a member of the World Intellectual Property
> Organization, so
> > >none of those trademark rules apply. Tongan web sites are also a good
> > >place to put a lot of controversial material, including crypto stuff.
> >
> > Just because the domain name is under Tongan authority does not
> mean the
> > web site is magically in Tonga. In fact, I doubt there is a
> single colo
> > facility in Tonga (e.g. cypherpunks.to is in Amsterdam.) A
> Tonga domain
> > name is a vanity plate, nothing more.
> >
> > jim
> >
> >
>
> ****************************************
> * J. Mark Brooks, Attorney at Law *
> * P.O. Box 39, Randleman, NC 27317 *
> * law.office@jmbrooks.net *
> * ICQ# 31732382 *
> * http://www.jmbrooks.net/law.html *
> ****************************************
The following archive was created by hippie-mail 7.98617-22 on Sat Apr 10 1999 - 01:18:49