As I am writing Senegalese troops are already in The Gambia as part of The Economic Community of West African States (ECOWAS) in an effort to support Adama Barrow the new president against Mr.Yahya Jammeh, who after initially accepting the results has resolved to cling to power, even after losing the 2016 elections. Adama Barrow who emerged as the winner in the first democratic elections in The Gambia made more history by taking his oath of office at The Gambia’s embassy in neighboring Senegal. It didn’t take long before the UN Security Council made a resolution sanctioning the military intervention by ECOWAS in The Gambia. The inauguration of President Barrow has caught many by surprise and would inevitably set a precedent for many in Africa where countries have despots that are drunk in power and disrespect democratic processes. Legal minds have to ponder with the question as to whether The Gambia’s embassy in Senegal is considered as part of The Gambia and thus Barrow’s inauguration met the threshold to be considered legal.
The embassy is not The Gambia’s Sovereign territory
The Gambia’s embassy in Senegal is protected and considered The Gambia’s premises but it is not its territory. 1961 Vienna Convention on Diplomatic relations (VCDR) does not in away say that a mission is the territory of a sending State. It only provides privileges and immunity that is extended to the mission and the diplomats therein. Many have confused immunity with sovereignty.
Article 3 of the 1961 Vienna Convention on Diplomatic relations (VCDR) provides that a ‘diplomatic mission’ has, among others, the following functions:
- Representing the sending state in the receiving state.
- Protecting the interests of the sending state and its nationals in the receiving state.
- Negotiating with the receiving state’s government.
- Providing information on the conditions and developments in the receiving state to the government of the sending state.
- Promoting friendly relations between sending and receiving states
Article 21 stipulates that the receiving State shall either facilitate the acquisition on its territory, in accordance with its laws, by the sending State of premises necessary for its mission or assist the latter in obtaining accommodation in some other way. This does not mean that the territory will now belong to the receiving state. Article 22 should be the confusing clause to many. It states that the premises of the mission shall be inviolable. This means that the receiving State may not enter the mission(embassy or High Commission) without the consent of the head of the mission (ambassador or High Commission).This article has been the foundation of many that argue that an embassy is a sovereign territory of a foreign country. Several people have taken refuge in foreign missions including the high profile one of Julias Assange who applied for asylum and has been living in the Ecuadorian embassy in the UK. The UK has warned that once he sets foot out of the ambassy he will be extradited to Sweden where he facing prosecution on charges for sexual offences.
Immunity should not be confused with sovereignty. I agree with Alfred P. Rubin Professor of International Law who in 1984 opined that as a matter of international law, an embassy is not ”territory” of the sending state; it is territory of the receiving state that is accorded, through various treaties and customs, some immunity from host-country law. The good Professor was reacting to President Reagan who had tried to justify the U.S. shelling in Lebanon as a reaction to attacks on the US embassy. According to President Reagan, ”It was because of shelling our embassy. Now that’s United States territory.” Diplomatic law as per Article 2 of the Vienna Convention on Diplomatic Relations gives the receiving state responsibility and duty to protect the premises of the embassy.
Adama Barrow’s legitimacy as the President of The Gambia after winning last month’s election has been recognized internationally and is only challenged by the unconstitutionality of Mr.Jammeh’s stay in power. I am hoping by the time you read this Barrow will have ended his exile in Senegal and occupied the Presidential Palace in Banjul with the help of ECOWAS as opposed to being “The President of the Embassy of The Gambia in Senegal.”
BY FELIX OMBURA
This article appears in our weekly digital law magazine, The Deuteronomy Vol 1, Issue 3 of January 20th, 2017
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