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Authors: Walter Arévalo, Gabriel Concha, Valentina Garzon.
Required knowledge: Subjects of International Law.
Learning objectives: Understanding XY.
A. Background[edit | edit source]
The role of diplomatic relations has fluctuated between periods of history. In the classic age of diplomacy, it was a tool for bilateral relations and was not part of Public International Law. The role that it was given was merely based on the techniques (negotiation, representation) designed to achieve its main objective: establish political relations between States, always protecting its national interests.
In the contemporary age of diplomacy, diplomats not only have to achieve the objective and roles set in the classic era, but also have to establish relations that transcend the realm of politics (including cultural, economic and scientific relations). In doing so, diplomats should foment friendly relations between nations and citizens.
Diplomatic relations have also evolved with the emergence of International Organizations, they have changed the way States interacted, turning international relations from bilateral to multilateral settings, leaving behind the secrecy of diplomacy that was usual during the Cold War. Also, the advances in communications mean new possibilities for the creation of conferences, summits, and other multilateral forms of diplomacy.
Diplomatic relations cannot be confused with foreign policy. Foreign policy usual refers broadly to the policy and decisions taken by the State in matters of its international relations while diplomacy is a particular tool and a set of practices by which the State, represented by the Government executes its foreign policy. Moreover, foreign policy includes the decisional processes by which States adopt their position over foreign issues regarding their national interests. It is adjusted depending on official governmental positions, needs and global context. Meanwhile diplomacy tends to focus on the study the permanente relations and the practices of representation and interaction between States.
B. Diplomatic relations and Diplomatic missions[edit | edit source]
The concept Diplomatic relations refers broadly to the ways a State interacts with other subjects of international law and other members of the international community, including international organizations.
Different levels of diplomatic missions are envisaged to achieve different goals. For instance, embassies are the official representation of one State in the territory of another, usually offering political representation but also services for citizens abroad. Between associations of States, such as the Commonwealth, a permanent representation of a member State in the territory of another member State is fulfilled under a High Commission. A Permanent Mission, on the other hand is usually the name given to the permanent representation of a State before the governing body of an International Organization at the city in which it takes seat.
States have the right to entertain diplomatic relations and to end them as a manifestation of their sovereignty. Usual, after an unilateral act of recognition, States begin diplomatic relations under the principle of reciprocity. Each State may, at any moment, finalize its diplomatic relations with another as there is no international obligation to maintain relations. Even if, from an international relations point of view the act of ending diplomatic relations may not be seen with good eyes, the ending od said relations itself is not considered as a breach of international law. Political crises may lead States to promptly ending or suspending diplomatic relations, that can be reinstated quickly by both government if an agreement is achieved.
I. Functions of a Diplomatic Mission[edit | edit source]
Diplomatic missions have as main functions:
- Representations and protection of state´s citizens abroad
- Communication and political representation between the sending State and the receiving state
- Encouraging and enhancing relations between citizens of both States.
In addition, some diplomatic missions may include consular services. Although consular missions are not diplomatic mission per se, in practice states tend to merge these functions in the same mission to reduce costs.
II. Members of Diplomatic Missions[edit | edit source]
As previously stated, diplomatic missions are composed of civil servants and State representatives holding different status before the receiving State. These statuses include members with diplomatic status, privileges and immunities such as the ambassador, secretaries,and diplomatic aggregates. Consequently, all the remaining administrative staff do not have diplomatic rank and their relation with the embassy is governed by a labor regime.
Article 8 of the Vienna Convention on Diplomatic Relations provides that the general rule is that members of a diplomatic mission must have the nationality of the sending State. Furthermore, they also ought to have a diplomatic passport, that specifies the rank which they hold, and the mission they are attending. Also, if there is any change in the category of a staff member, it has to be informed by the Ministry of Foreign Affairs of the sending State.
The members of the Service Staff are in the domestic service of the mission. Usually, they are not citizens of the state where the mission is being held, but they get a permit to stay in the receiving state regularly for a period no longer than 5 years and the sending state has to inform them of the position and functions that they are going to perform.
The personnel for technical issues (maintenance, construction or repair work) can’t stay for more than 6 months, in case of the need to extend that time, the sending country must explain the reason behind the decision. The country must address what type of work is being done and how longer is going to take to finish it.
Some of the diplomatic agents and members of Service Staff have diplomatic immunity. The Vienna Convention of Diplomatic Relations specifies it:
- Diplomatic agents and dependent family members (spouses and children under the age of 21 years old) (Article 31 and 37 respectively)
- Administrative and technical staff on the mission and household family members (Article 37 paragraph 2)
- Members of the service staff of the Mission, who are not nationals of or permanently resident in the receiving state when performing acts in the course of their duties (Article 37 paragraph 3)
However diplomatic immunity does not allow the disobedience of the law in the receiving state. People with diplomatic immunity still have to follow private financial obligations In serious criminal acts, the receiving state may ask for permission to the sending state to remove the diplomatic immunity.
III. Naming and agreement of the diplomatic staff[edit | edit source]
First and foremost, the main process of naming is the one regarding the head of the mission and key personnel. Ambassadors are the head of the diplomatic mission in the receiving state. For being the head of the mission there are four main steps to be taken into account. First, the sending state selects the person to be named. Afterwards, the hosting state must accept such ambassadors. If the State does not agree to such naming it may reject the proposal without the need of justifying its reasons. Once there is a constant by the receiving state, the ambassador is accredited. This decision shall be notified to the chancellor or head of state.
On the other hand ,most of the diplomatic mission´s staff do not need to go through a naming process as they will not have the actual representation. In consequence, each state may designate the staff without the need for consent from the hosting state.
IV. Ending and revocation.[edit | edit source]
All diplomatic staff ends their tenure with its revocation. Said process is done by the will of each sending state. Yet, in cases in which the receiving state declares someone from the diplomatic staff as persona non grata, there is an obligation to retire that person from the mission. It is important to note that these declarations may be done to all the staff of the mission, including non-diplomatic members. These types of declarations are done without the need to justify their reasons, the same as the ending of diplomatic relations can be done at any time. Although it is not an obligation, it is common that the other State responds to the declaration in the same way and so declares a member of the first State as persona non grata.
C. Differences with consular relations[edit | edit source]
Diplomatic relations can’t be confused with consular relations. The latter can exist without the first one. Consular relations can be taught as technical and administrative relations. These are regulated by a mixed regime: Public International Law and Internal Law. Consular relations, similarly to Diplomatic Relations, are born from a mutual agreement between the recipient state and the sending state. There’s also different conventions for one and other: the Vienna Convention for Diplomatic Relations (1961) and the Vienna Convention for Consular Relations (1963).
The objectives and roles of the consular relations have extensive, nonetheless, these are some examples: 1.) Protection and promotion of the already existing commercial relations between the two states. 2.) Ships, aircraft and crews assistance. 3.) provision of services to the citizens of the state they represent and 4.) notarial and administrative duties both form the citizens of the state they represent in the recipient country and the citizens on which is located the consular relation (Article 5 of the VCCR)
There’s two types of consuls:career and honorary consuls (Article 1 paragraph 2). Career consuls usually perform the consulary roles, and are nationals of the sending State. Honorary consuls don’t perform these tasks and are usually nationals of the recipient country.
A consul can only be named after there is a patent with the sending country which is basically an authorization of the sending State and with the expedition of an exequatur which is the authorization of the recipient State.
D. Vienna Convention on Diplomatic Relations of 1961[edit | edit source]
The Vienna Convention of 1961 regarding diplomatic relations (VCDR) is the main instrument that regulates diplomatic law. Before the Convention, diplomatic relations were managed by customary law. Nevertheless, such a custom was incorporated inside the convention. The convention includes a broad topic from the functions of diplomatic missions to the rights, privileges, and obligations of both sending and hosting states.
History of the Convention
Diplomatic relations have a history way back in time. Greeks and Indians conceived certain types of prerogative to envoys. With time, ancient cultures develop a different relationship. Instead of seeing as peers between one another, desire for conquest and territory ended this proto-diplomatic relations. It was not until the Renaissance when the protection of envoys returned. As many other issues in international law, Westphalia marks a milestone. As sovereignty was being discussed, delegations from all countries started to gain protection against civil jurisdiction. Since that moment it became a standard practice and later develop into customary international law recorded, in between others, by Huge Grotius
Although customary law was the main source of diplomatic relations regulation, by 1815 there was a first attempt to codify diplomatic law, at the Congress of Vienna. There, certain rules of diplomatic relations were enacted. These rules included those regarding the head of mission. Other aspects discussed in the congress were the ones regarding ceremonial honors. Although it may look miscellaneous, this issue had previously generated conflicts in the past.
Moreover, in 1928 during a Pan American Union meeting the Havana Convection included a series of rules regarding immunities. Later in 1931 the Harvard Research Draft Convention brought new ideas to the diplomatic law .
With the beginning of the United Nations and the works of the International Law Commission, the need for codifying diplomatic law was born. In 1952 Yugoslavia introduced the need for the convention and so, after being discussed in the Sixth Committee and the GA, the ILC was commissioned to unify the rules where there was not a clear and unified understanding. Some examples are the privileges and immunities of the junior staff and other progressive development issues that were not already addressed in customary law. In that context the Vienna convention was seeing its first steps. Mr. Sandstrom was appointed as special reporter so that he will produce a report to be presented to the Commission. Such a report was presented in 1957 and was open to comments from different parties. 21 states were analyzed by the commission and in 1958 presented a draft. Finally in 1961 at the city of Vienna the UN conference was held. 81 states were part of such discussion and so on 18 April the Convection was signed.
During the discussion at the conference one of the main concerns were communications. Until then it was clearly understood between the states the right of freedom of communications. Nevertheless, new technology such as wireless communication was controversial. It was so due to the fact that only certain states had access to this technology while less developed countries struggled with it. In addition, fears of broadcastings from an embassy to the local population made one of the few problems inside the discussion. However, after agreeing to make a respectful use of the electromagnetic spaces and search for governmental permission the controversy was resolved. Other big discussions were those of the inviolability of the diplomatic pouch and the extent of administrative and technical staff. As a result, a nuanced immunity was created for criminal matters but not civil ones.
Inviolability of missions
VCDR establishes in article 22 the inviolability of the diplomatic mission. Such obligation implies that inspections, registers or other types of these acts are strictly prohibited. However, article 22 lacks regulation regarding extreme cases of force majeure in. Not only do the obligations from article 22 imply the hosting state to abstain from the use of force in the diplomatic mission, but also to guarantee the safety and well-being of the mission. This includes the obligation preventing public demonstrations in the vicinity of the mission that may be disrespectful to the State.
A Historical example of this situation is the 1984 storming of the Libyan embassy in the United Kingdom. In that opportunity arms subjects fire against civilians on the street. As police should respect the inviolability of the mission there was no way to act against the fire. Nevertheless, the response of the government was to end diplomatic relations with Libya.
As it is different from the status of a diplomatic mission and a consulate, Vienna convention acts as such in regards with the inviolability. Article 31 (II) precises the possibility of taking actions in certain cases.
Protection of documents
According to article 24, the inviolability of the embassy not only refers to the physical infrastructure of the mission but also the documents inside it. Such protection includes all the necessary documents that assure the operation of the mission.
Freedom of action
Taking into account article 25, a diplomatic mission must have all the freedom to fulfill its mission. That means the hosting state should not impose obstacles that may affect the functions of the diplomatic mission. Examples of that may be granted freedom of circulation and free access to citizens of the receiving state, as part of its main functions. Not the same is applied to the citizens of the hosting state, in the sense that it is not an obligation to grant that access.
All the diplomatic mail and communication between the mission and the sending state is protected by article 27 of the Convention. Once the state identifies the mail as diplomatic mail it is completely prohibited to open it. Yet, the mail must contain material to fulfill the diplomatic objective. If there is a situation which requires the violation of this protection it could only be done with the agreement of the receiving state.
There exists a debate on whether certain situations may grant the hosting state the exercise of an inspection. Back in 1984 a Nigerian minister was kidnapped in the Nigerian embassy and sent in a box marked as diplomatic mail. British authorities noticed a strange situation with the box and so had to contact Nigerian authorities to open the box.
Controversies arise about the question of whether methods like X-rays and scans infringe the obligation of article 27. It is well understood that, as such exams do not open the mail nor make a document readable, are permitted.
Treatment of families and junior staff
Regarding families, members of a diplomatic household may be granted immunity when they are not nationals of the receiving state.
Articles 29 and 31 include the regime of protection for the diplomats. Those articles established the immunity from the civil and criminal jurisdiction of the receiving state. Nevertheless, according to article 32, sending states may revoke and waive immunities and privileges.
Other privileges are for example article 35, which exempts from taxes of the diplomat staff related to their functions, and article 36, regarding exemptions of customs duties.
Other privileges and immunities
Immunity art 31
The article 31 of the Convention grants diplomats with civil and administrative immunity. It also prohibits the obligation for diplomats to testify, nonetheless, this right does not grant diplomats with absolute immunity given the fact that the same article declares that diplomats are still responsible by the jurisdiction of the sending state.
There are some exceptions to this article, they can be found in the paragraph a, b and c in the same article. This exceptions are the following respectively:
A real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;
An action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State;
An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.
A sending State may waive the immunity of its staff sent whenever necessary. For that effect, waiver must be expressed. In the same way, it must explain the scope of the waiver as it is not understood as a complete relinquishment of the immunity.
If a diplomat starts an action, any counterclaim is out of the scope of the immunity.
This article refers to the beginning and termination of diplomatic immunity. The benefits shall begin from the arrival of the diplomat to the receiving country or when the designation is given. Immunity ceases when the mission ends, or the day where both countries decide upon. However, immunity shall still apply to the activities that are required for the mission.
In the case of the diplomatic death, their family still has immunity until the expiration of a reasonable term for them to return to the sending country.
If diplomats have to travel from the receiving state to another based on the objectives of the mission, the third state has to guarantee that the diplomat still has the immunities of the receiving state.
The diplomats must abstain from interfering with internal issues and all the oficial matters of the mission must be dealt with the foreign affairs ministry or the ministry that was negotiated among states.
E. Differences between diplomatic immunity and the immunity of international organizations[edit | edit source]
As said before, diplomatic relations originate from customary law, Not the same happens with the immunity of international organizations as was not born by the logical relation between states, but rather in the constituent treaty of the organization. The tailor base approach for each scenario will determine between the hosting state and the IO and so, it may not be extended universally.
As it is a topic which may generate confusion, municipal law tends to apply diplomatic immunity as an extension. Nonetheless, such determination is beyond its competence. The Manderlier case is a clear example of such misunderstanding.
One of the main differences regarding IO and diplomatic relations is nothing but the fact that IO does not have its own territory. The lack of territory submitted the IO to the hosting state and so, often exposed to local authorities. In that context, the need for immunity and protection is much broader in order to guarantee their independence.
Another big difference is regarding the immunity of its staff. While in diplomatic relations staff gain their immunity depending on the nationality, in IOs the link will depend on the functional relation. For example, those who work at an embassy but are nationals of the receiving state will not have immunity. As it is shown, immunity of the IO is much brader. Although limits may exist, the ICj has said that those limits must be expressed and cannot be done unilaterally.
Regarding the jurisdictional process, let's recall that in diplomatic immunity, the individuals shall be processed in its home state as immunity is not a synonym for impunity. In the IO immunity, as there is no link of national origin, the same IO is the one incharge of studying the case. The inherent powers of the IO empowers it to constitute its own tribunals and mechanisms to decide a dispute.
Another key aspect that differs from diplomatic relations is the accreditation. While diplomatic missions need to have an exchange of instruments that name a head of mission and a protocol, the immunity of the IO staff depends exclusively on the agreement inside the Headquarters Agreement.
In conclusion, IO may not be processed in domestic tribunals, nor its staff as the immunity derives from the constituent agreement. Therefore, any exception to the immunity will depend on the treaty itself.
Further Readings[edit | edit source]
- Source I
- Source II