Published: 26 October 2020; Revised: 30 October 2020 Authors: Stefan Talmon and Philip Wimmer
On 4 May 2019, King Maha Vajiralongkorn formally ascended to the throne of Thailand. The King, however, lives in Germany for most of the year. He stays with his household in a hotel in the Bavarian Alps. In 2020, protests broke out against the Thai Government. The student-led protest movement also took issue with the King’s residence and extravagant lifestyle in Germany while the country was suffering from the severe consequences of the coronavirus pandemic and demanded reforms of the monarchy. With the protest movement in Thailand growing, questions were raised in the German Federal Parliament about the King engaging in domestic politics from German soil.
In response to a parliamentary question on 7 October 2020, Federal Foreign Minister Heiko Maas declared:
“We have made it clear that political activities related to Thailand are not to be carried out from German soil. […] It is not in line with the position of the Federal Government that […] guests in our country conduct their affairs of State from here; this is something we would always clearly want to counteract.”
There were fears that the King might order the imposition of a state of emergency or even the violent suppression of the protests from Germany. The question of the King conducting State business during his sojourn in Germany resurfaced two days later in the regular government press conference. In response to questions, the spokesperson for the Federal Foreign Office declared:
“Our view is that foreign affairs of State should not be pursued from German soil. We have repeatedly made this position clear to the Thai Ambassador. The Thai side assures us that the affairs of State in Thailand are conducted by the local Prime Minister and that the King, who is the head of a constitutional monarchy in Thailand, is in Germany on a private visit. The state of affairs is that we have made our position very clear. The Thai side has set out its position. Should there be any indications that the King conducts affairs of State from here which required a reaction on our part, then one would have to make an assessment in that situation, if it actually occurred.”
At a press conference with the Director General of the International Atomic Energy Agency in Berlin on 26 October 2020, Federal Foreign Minister Maas was, once again, asked about the Thai King in Germany. The Minister replied:
“[…] of course, I am also keeping an eye on what the Thai King is up to in Germany. We have been monitoring that, not only in the past few weeks, but we are continuing to monitor that, and if there are things that we perceive to be illegal, then this will have immediate consequences.”
At the government press conference on the same day, a spokesperson for the Federal Foreign Ministry was asked to elaborate on the consequences indicated by the Foreign Minister. The spokesperson did not want to speculate about possible consequences. On the question of whether the King was allowed to govern from Germany, the spokesperson replied:
“In the first instance, the Federal Government is convinced – and also expects – that under no circumstances will any decisions be taken here that are in conflict with the German legal order, international law or internationally guaranteed human rights. […]
The legal situation is such that in international law it is inadmissible to carry out sovereign acts on foreign State territory. This applies to the King of Thailand in Germany as well as to citizens of other nations in Germany.”
This position was reiterated at the press conference on 28 October 2020, when a spokesperson for the Federal Foreign Ministry said:
“[T]he Federal Government assumes and of course also expects that under no circumstances will decisions be taken from Germany that contradict the German legal order, international law or internationally guaranteed human rights. […] It is also important to us that no legal acts or the like are passed from Germany that contradict internationally guaranteed human rights; that is, the so-called ordre public.”
In a briefing to the Foreign Affairs Committee of the Federal Parliament on the same day, the Government seemed to paint a more nuanced picture. Following the meeting, a parliamentary source said that the Federal Government believed the King was permitted to make occasional decisions, as long as he did not continuously conduct business, and that the Government was not yet of the opinion that he had continuously conducted business from German soil.
The position of heads of State in foreign territory is governed by customary international law. The starting point must be the exclusive competence of the State in regard to its own territory. In the words of arbitrator Max Huber in the Island of Palmas case: “Sovereignty […] in relation to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State.” A foreign head of State is thus prohibited from exercising sovereign authority over people, objects or events in the host State. In particular, a visiting head of State must not exercise criminal or civil jurisdiction over members of his or her entourage. In 1657, while on a visit to France, Queen Christina of Sweden condemned a member of her suite, the Marquis Monaldeschi, to death and had him executed at Fontainebleau. Such exercise of authority would today constitute a violation of the territorial sovereignty of the host State.
Nevertheless, international law has long recognized that heads of State have the “jus imperii domi suae in suos exercendi”; that is, that they have the right to exercise sovereign powers over their subjects at home, even while abroad. While in former times there were practical limits to the exercise of this right, modern means of communication mean that heads of State can actively participate in the conduct of State affairs even in a foreign country. Today, heads of State cannot just sign papers or execute acts of parliament; they can also receive briefings and give orders in real time to their authorities at home. Active participation in the conduct of the affairs of State while abroad inevitably involves the exercise of sovereign authority in the territory of another State. However, the visiting foreign heads of State do not exercise any sovereign authority “in relation to” their host State but do so only in relation to their own home State. Their action has no impact in the host State’s territory and involves no derogation from or incompatibility with its territorial sovereignty. Thus, visiting heads of States – irrespective of whether on an official or a private visit – are generally permitted to perform acts of State concerning their own country. Matters may be different if the visiting head of State’s actions are contrary to the public order or are detrimental to the interests of the host State. For example, it may be considered incompatible with the public order of a host State which has abolished and is generally opposed to the death penalty if a foreign head of State were to sign a death sentence during their visit.
Germany did not generally call into question the right of foreign heads of State to conduct affairs of State when abroad. However, the distinction between continuously and occasionally conducting State business may be a difficult one to draw.
The spokespersons for the Federal Foreign Office did not say that all foreign governmental acts as such were illegal under international law, but rather stated the Federal Government’s political position that “foreign affairs of State should not be pursued from German soil.” This statement must be seen against the background of fears that the Thai King could order the forcible suppression of peaceful demonstrations while in Germany. This could have negatively affected Germany’s domestic politics as well as the country’s international relations and reputation. The statements by German officials were probably intended as a warning to the King. While Germany could not have prevented him from making such an order, it was under no obligation to tolerate his continued presence in Germany. Any such order would most likely have been met by decisive counteraction, revoking the King’s visa, and ending his sojourn in Germany. In any case, the matter became a mere theoretical issue when the King returned to Thailand on 19 October 2020 to deal with the protests on the ground.
Category: Territorial sovereignty