When the road widening drive gathered momentum in late 2011, few people expected it to generate contagion effects on major roads and intersections in the Kathmandu Valley. As the government was not paying compensation for acquisition, persuading people to give up their homes and land was very difficult. In many places, there was severe defiance by households who were being rendered homeless. Sporadic street protests questioned the legitimacy of the road width marking and increments. Courts were also beseeched frequently to halt the move.

But the Baburam Bhattarai-led government was so resolute that it unceremoniously dispossessed the people of their homes to provide continuity to its street-building demolition drive. Protests eventually withered away and courts too were reluctant to pass any orders to stop the expansion and directed the government to pay compensation only if the acquisition was forceful. However, despite a few isolated cases of monetary compensation, pedestrian-unfriendly expanded roads, uncoordinated digging of the streets by water supply and road authorities, Valley residents have been cautiously optimistic and supportive of the road expansion initiative.

Yet, one major constraint that remains is convincing diplomatic embassies and missions in Kathmandu to support this move. For that, the government should create a conducive environment for embassies and missions to recede their boundary walls. And this requires intervention at the diplomatic level.

Inviolable premises

Embassies and diplomatic missions owning and/or possessing buildings, including ancillary lands in the road stretches of Baluwatar, Lazimpat, Maharajgunj, Kamalpokhari, and Gyaneshwor, have been particularly uncongenial to the government’s road-widening project. They have frequently and, of course, rightly taken recourse to provisions in the Vienna Convention of Diplomatic Relations (VCDR) 1961 to keep the government at bay from any incursions into the “premises of the missions” for the purposes of road expansion. Article 22 (1) of the VCDR makes “premises of missions” inviolable, implying that diplomatic premises cannot be subjected to any kind of intrusion and interference by the country hosting the embassy. This rule of international law, as interpreted by the International Court of Justice in US Diplomatic and Consular Staff in Tehran case, could extend beyond merely preventing intrusion and requires the receiving state to take appropriate steps to protect the premises of the mission from all sorts of infringements.

In sum, the rule of inviolability for diplomatic premises appears absolute. Contrary to the inviolability rule enshrined for diplomatic premises, the convention governing consular premises makes this rule less pervasive and permits expropriation for public purposes. The public purpose for expropriation may include widening of roads in the city. Vienna Convention on Consular Relations (VCCR) 1963, which governs consular functions, relations, and premises (distinct from diplomatic premises), allows expropriation of consular premises subject to payment of just compensation for public interest. Hence, the host state can exercise its power of eminent domain to acquire consular premises. But in case of diplomatic premises, VCDR does not even purport to create an implied authority for the host state to exercise eminent domain to acquire the property, even for exceptional circumstances or during force majeure situations.

The reason a lesser threshold was conceived of for consular premises in comparison to diplomatic premises was because it was felt that the functions carried out by consular offices did not require the immunity deserved by diplomatic missions. But the important question that requires consideration in the Nepali case is how the need of a growing city to widen its roads is best reconciled with the rule of ‘mission inviolability’.

Express consent

Drawing from the travaux préparatoires (preparatory works) of VCDR, it would be fair to conclude that most countries argued to not make the rule of inviolability for diplomatic premises absolute. Contingents from the US, Japan, India, and Ireland even proposed amendments and provided comments to restrict the application of the rule during exceptional circumstances of emergency. The US, in particular, sought to extend the power of eminent domain to diplomatic premises and took the “view that international law [did] not absolutely preclude the requisition of such property or its taking by exercise of right of eminent domain [and] the right [could] be exercised under very limited circumstances.” However, such amendment proposals were not accepted by the International Law Commission and it only observed “that a sending state possesses a moral duty to cooperate with the receiving state” in these matters. Thus, the absolute application of the rule of inviolability of diplomatic premises was finally adopted in the VCDR.

With no authority to exercise the power of compulsory acquisition for the taking of diplomatic premises, the receiving state is only left with an option to seek cooperation of the sending state when implementing its road expansion project. In 1966, the Foreign Office of the UK sought express consent from embassies in London for the construction of the new Jubilee Line of the London Tube (formerly the Fleet Line), which was granted without any objections, albeit some embassies “asked for confirmation that compensation would be paid in the event of resulting damages to their premises.” Similarly, the UK embassy agreed to relocate its premises in Moscow at the behest of the Soviet Union. So what is important in such situations is that the receiving state must clearly commit not to materially obstruct the business of the diplomatic mission and damage the physical properties of the premises irreparably. In response, based on the moral duty to cooperate, the embassies of the sending state should reciprocate with express consent, qualified only with certain conditions.

The sending states’ moral duty to cooperate is further cemented in the Declaration on the Right to Development (UNDRD), adopted by the United Nations in 1986. Article 3 (1) of UNDRD puts an obligation upon states for the “creation of national and international conditions favourable to the realisation of the right to development” and Article 3 (3) requires states “to co-operate with each other in ensuring development and eliminating obstacles to development.” Expansion of roads opens opportunities for development and thus, it is imperative that states both at national and international level create favourable conditions for facilitating the right to development. Everyone accepts that diplomatic premises are inviolable, but so is the right to development.

Dahal is an advocate (@the3rdbranch)