Public International Law Content
Modern Diplomatic and consular law
International relations are based on diplomacy. That is, “states establish or maintain mutual relations, communicate with each other, or carry out political or legal transactions, in each other, or carry out political or legal transactions, in each case through their authorised agents.” (Crawford 2012).
Therefore, diplomacy may exist even during armed conflict or when the relationship between two states has deteriorated.
Diplomacy involves the exchange of permanent diplomatic missions, representation in the United Nations and other intergovernmental organisations. Similarly, special missions and representation in ad hoc conferences are also part of diplomacy.
Vienna Convention on Diplomatic Relations (VCDR) 1961
Vienna Convention on Consular Relations (VCCR) 1963
United Nations Convention on the Immunities and Privileges of the United Nations 1946
Law of Diplomatic Relations
- Diplomatic relations are established by mutual consent. There is no right or obligation to establish diplomatic relations under international law. Similarly, all states are capable of establishing diplomatic relations.
- Diplomatic relations and state recognition are unrelated. While it is true that without recognition diplomatic relations are not established or maintained. Withdrawal or non-establishment of diplomatic relations do not affect state recognition. Non-establishment or withdrawal of diplomatic relations can be political consequences. For example, Security Council Resolution 748 1992 called upon states to reduce the number of diplomatic staffs at Libyan diplomatic missions and consular posts and restrict the movement within their territory of all such staffs who remain. This resolution was in response to Libya’s refusal to surrender individuals who were thought to have been responsible for the bombing of the Pan Am Flight over Locerkbie, Scotland and UTA flight over Chad and Niger.
- Rationale of Diplomatic Privileges and Immunities
Diplomatic relations, according to Crawford, entails the exercise by the sending government of state functions on the territory of the receiving state by license of the latter. Hence, one of earliest rational for diplomatic privileges and immunities put forwarded was that diplomatic mission premises were “extraterritorial” in relation to the host state. That is, the premises were assimilated to the sending state. This was argued by Grotius also.
However, in the modern public international law the rationale of diplomatic privileges and immunities are explained in terms of the diplomat’s role as agent of state and the functional theory.
Under the functional mode, the immunity is first a statement recognizing the sovereign and independent status of the sending state, as well as the public nature of a diplomat’s acts and his or her consequent immunity from the receiving state’s jurisdiction. Secondly, the immunity exists to protect the diplomatic mission and staff and to ensure the efficient performance of functions designed to preserve international order and maintain communication between states.
- Functions of Diplomatic Missions (see VCDR article 3)
- Representing the sending State in the receiving State;
- Protecting in the receiving State the interests of the sending State and of its nationals, within the limits permitted by international law;
- Negotiating with the Government of the receiving State;
- Ascertaining by all lawful means conditions and developments in the receiving State, and reporting thereon to the Government of the sending State;
- Promoting friendly relations between the sending State and the receiving State, and developing their economic, cultural and scientific relations.
- Mission Staff
The VCDR divides mission staff into the following categories in general: (see article 1)
- Diplomatic staff (members of the mission having diplomatic ranks as counsellors, diplomatic secretaries or attaches)
- The administrative and technical staff
- Persons in the domestic service of the mission.
- Heads of Mission
- Accreditation and agŕement
See article 4. The host state holds the unilateral right to reject and that is not under no obligation to furnish reasons for the rejection of agŕement.
- According to article 14(1) of the VCDR, heads of mission fall into three classes, (i) ambassadors accredited to heads of state, or other heads of mission of equivalent rank, (ii) envoys, ministers and internuncios likewise accredited and (iii) charges d’affaires accredited to Ministers of Foreign Affairs.
- See article 14(2) which provides that all the heads of mission are not differentiated on the basis of class except for the reasons of precedence and etiquette.
- Other members of the mission
- Sending state may freely appoint the mission staff. In case of military, naval or air attahes, the sending state may be required to get agŕement.
- Termination of Functions
As stated earlier, diplomacy relies on mutual consent. Hence, termination of functions of diplomatic missions and staffs is determined accordingly. Both host state and sending state may unilaterally decide to terminate functions. The sending state may terminate the functions for any reasons it sees fit. The host state may also at any time and without explanation any member of the diplomatic mission persona non grata (non acceptable) (see article 9).
Refusal by the sending state to comply by the host state’s declaration results to host state’s refusal to recognise the individual as a member of the mission.
Persona non grata is the only option a host state has to respond to any abuse of diplomatic immunities. In 1976, the entire diplomatic staffs of the North Korean missions to Denmark, Finland, Norway, and Sweden were declared persona non grata following the revelation that the embassies were a front for the illegal import and sale of drugs, cigarettes and alcohol.
- Premises and Facilities
VCDR article 25 provides that the host state shall accord full facilities for the performance of the functions of the mission. See also, articles 26 and 27.
- Inviolability of Missions
Missions established and functioning with the consent of the host state enjoys protection of from external interference. The missions enjoy immunity of the sending state. The rule is an extension of the diplomatic immunity.
VCDR article 22 lays down the rules regarding the inviolability of Missions.
Even countermeasures infringing on inviolability are excluded.
Courts cannot issue summons/writs against the mission. All communication should be served only through Ministry of Foreign Affairs.
- Inviolability of Archives, Documents and Official Correspondence
See article 24, 27.
The archives, documents and other official correspondence are inviolable “at any time and wherever they may be”.
Diplomatic bag shall not be opened or detained.
In UK, abuse of this privilege has led to the UK government to resort to the scanning of bags where there are strong grounds of suspicion. During the process a member of the relevant mission is invited to be present.
In Partial Award: Diplomatic Claim – Ethiopia’s Claim (2005), the Eritrea-Ethiopia Claims Commission held that the interception of an Ethiopian diplomatic bag in 1999 by Eritriean officials violated article 24. Although the package was incorrectly labelled and shipped by private courier and was thus not a ‘diplomatic bag’ for the purposes of article 27, the character of the blank passports, invoices and receipts found within was apparent.
- Inviolability of Diplomatic Agents
The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.
Distinct from immunity from criminal jurisdiction.
No exception, even in case of a drunken diplomat with a loaded gun in a public place. (Fatemi v. United States (1963))
See article 31 for exceptions to the general rule of inviolability.