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Diplomatic and Consular Relations

(p. 395) 17  Diplomatic and Consular Relations

1.  Modalities of Interstate Relations1

In its simplest sense diplomacy comprises any means by which states establish or maintain mutual relations, communicate with each other, or carry out political or legal transactions, in each case through their authorized agents. Diplomacy may thus exist between states in a state of war or armed conflict with each other, but the concept relates to communication friendly or hostile,2 rather than the material forms of economic or military conflict.

Normally, diplomacy involves the exchange of permanent diplomatic missions, and similar permanent, or at least regular, representation is necessary for states to give substance to their membership of the United Nations and other major intergovernmental organizations. Then there are the categories of special missions or ad hoc diplomacy, and the representation of states at ad hoc conferences.

The rules of international law governing diplomatic relations are at the most formal end of the spectrum of international communication. They are the product of long-established state practice reflected in treaties, national legislation, and judicial decisions. The law has now been codified substantially in the Vienna Convention on Diplomatic Relations (VCDR).3 Although parts of the VCDR were progressive, its widespread acceptance and implementation means that it now is mostly reflective(p. 396) of custom.4 The importance of the principles embodied in the VCDR was stressed in Tehran Hostages, where the Court observed that ‘the obligations of the Iranian Government here in question are not merely contractual…but also obligations under general international law’.5 For English courts the Diplomatic Privileges Act of 1708 was expressed to be declaratory of the common law. The Act of 1708 was not replaced until the Diplomatic Privileges Act 1964, which gives effect to the VCDR in UK law.6 The VCDR does not affect customary rules governing ‘questions not expressly regulated’ by its provisions7 and states may vary the position by agreement.

2.  General Legal Aspects of Diplomatic Relations

(A)  Incidence

VCDR Article 2 provides that ‘the establishment of diplomatic relations between States, and of permanent diplomatic missions, takes place by mutual consent’. There is no right of legation in general international law, though all states have the capacity to establish diplomatic relations. The mutual consent involved may be expressed quite informally.

(B)  Relation to Recognition

While recognition is a condition for the establishment and maintenance of diplomatic relations, these are not necessary consequences of recognition. The non-establishment or withdrawal or reduction of diplomatic representation may follow purely practical considerations or constitute a form of non-military sanction. In recent history, this has taken the form of co-ordinated international action against states suspected of shielding or sponsoring terrorism. One example occurred following Libya’s refusal to surrender those individuals thought responsible for the bombing of Pan Am Flight 103 over Lockerbie, Scotland and UTA Flight 772 over Chad and Niger. Security Council Resolution 748 provided that:

(p. 397) all States shall…[s]ignificantly reduce the number and the level of the staff at Libyan diplomatic missions and consular posts and restrict or control the movement within their territory of all such staff who remain; in the case of Libyan missions to international organizations, the host State may, as it deems necessary, consult the organization concerned on the measures required to implement this subparagraph.8

When Libya failed to comply with this resolution, Security Council Resolution 883 directed all countries to continue to reduce staff at Libyan diplomatic missions and consular posts.9

(C)  Rationale of Privileges and Immunities10

Diplomatic relations entail the exercise by the sending government of state functions on the territory of the receiving state by licence of the latter. Having agreed to the establishment of diplomatic relations, the receiving state must enable the sending state to benefit from the content of the licence. Doing so results in a body of privileges and immunities. One explanation, now discredited, for this situation was that the diplomatic agent and the mission premises were ‘exterritorial’, legally assimilated to the territorial jurisdiction of the sending state.11The consequences of this theory were never worked out and the law does not rest on any such premise. Indeed it rests on no particular theory or combination of theories, though the system is generally compatible with both the representative theory, which emphasizes the diplomat’s role as agent of a state, and the functional theory,12 resting on practical necessity.13 Under the functional model, 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(p. 398) efficient performance of functions designed to preserve international order and maintain communication between states.14

In the final analysis, the question must be related to the dual aspect of diplomatic representation: the state immunity (immunity ratione materiae) attaching to official acts of foreign states, and the overlying, yet more conditional, elements of ‘functional’ privileges and immunities of the diplomatic staff and the premises.15

(D)  Fulfilment of Duties by the Receiving State

The observance of legal duties by the receiving state requires the taking of various steps, legislative and administrative, in the municipal sphere. Appropriate care must be shown in providing police protection for personnel and premises and the state will incur responsibility if the judiciary fails to maintain the necessary privileges and immunities.

An obvious example is again Tehran Hostages. There, Iran was held responsible for failing to prevent and for subsequently adopting the actions of militants who invaded the US mission in Tehran and holding the diplomatic and consular personnel as hostages. The International Court held:

The approval given to these facts by the Ayatollah Khomeini and other organs of the Iranian State, and the decision to perpetuate them, translated continuing occupation of the Embassy and detention of the hostages into acts of that State. The militants, authors of the invasion and jailers of the hostages, had now become agents of the Iranian State for whose acts the State itself was internationally responsible.16

(E)  Functions of Missions

VCDR Article 3 sets out succinctly the functions of a diplomatic mission, primarily those of representing the sending state in the receiving state and ‘protecting in the receiving State the interests of the sending State and of its nationals, within the limits permitted by international law’.17 The mission may negotiate with the receiving state’s authorities, ascertain and report on local events, promote friendly relations between the two states, etc.

(p. 399) (F)  Abuse of Diplomatic Immunities

Serious breaches of diplomatic immunity are rare,18 due principally to the reciprocal benefits that accrue through mutual observance of diplomatic law.19 This position might be thought remarkable, given the stringent limitations on jurisdictional competence placed on states by the VCDR and the points of historical, ideological, political, or other friction often existing between states maintaining diplomatic relations with each other.

But there have been serious abuses. A Nigerian former minister was found drugged in a ‘diplomatic bag’ (a container) at Stansted Airport.20 Police Constable Yvonne Fletcher, on guard outside the Libyan People’s Bureau in London, was killed by a weapon fired from the premises.21 When, a week later, the embassy was finally evacuated and searched in the presence of a Saudi representative, weapons and relevant forensic evidence were uncovered. The House of Commons Foreign Affairs Committee prepared a detailed review of the VCDR,22 but concluded that any attempt to alter the balance of rights and duties so as to further require protected individuals to respect the laws of the receiving state was undesirable.23 It recommended more rigorous application of safeguards in the VCDR, notably Articles 9 (persona non grata) and 11 (limitation of mission size), a recommendation adopted in full by the government.24

3.  Staff, Premises, and Facilities of Missions

(A)  Classification of Personnel

VCDR Article 1 divides mission staff into three categories, the diplomatic staff (those members of the mission having diplomatic rank as counsellors, diplomatic secretaries, or attachés), the administrative and technical staff, and those persons in the domestic service of the mission. Two other terms are important. A ‘diplomatic agent’ is the head of the mission or a member of the diplomatic staff of the mission; the ‘head of(p. 400) the mission’ is ‘the person charged by the sending State with the duty of acting in that capacity’.

(B)  Heads of Mission

(i)  Accreditation and Agrément25

VCDR Article 4(1) provides that the sending state must secure the agrément or ‘consent’ of the receiving state prior to a proposed head of mission assuming the post. The receiving state holds a unilateral right of rejection in this respect, and is not obliged to provide reasons in the event that agrément is refused (Article 4(2)).26

(ii)  Classes and precedence27

Under VCDR Article 14(1) heads of mission fall into three classes: (a) ambassadors or nuncios28 accredited to heads of state, or other heads of mission of equivalent rank;29 (b) envoys, ministers and internuncios likewise accredited; and (c) chargés d’affaires accredited to Ministers of Foreign Affairs. With the doctrine of sovereign equality now formally embedded, there is no class-based differentiation between heads of mission save as concerns precedence and etiquette (Article 14(2)). VCDR Article 16(1) provides that heads of mission take precedence in their respective classes in the order of taking up their functions in accordance with Article 13, a provision that goes back to 1815.30

(C)  Appointment of Members Other than the Head of Mission31

VCDR Article 7 provides that the sending state may freely appoint the mission staff. In the case of military, naval or air attachés, the receiving state may require their names to be submitted for approval beforehand.

In the ILC there was considerable difference of opinion as to the extent to which the consent of the receiving state conditioned the appointment of members other than the(p. 401) head of mission. The text of Article 7 may seem sufficiently clear32 but at the Vienna Conference several delegations adopted the position that the article was to be interpreted in accordance with prevailing custom,33 namely that the consent of the receiving state was always required. Practice has now apparently crystallized in favour of an unrestricted right of appointment on the part of the sending state, save as provided for in Article 7.34

In a controversial English decision35 it was held that Article 7 was qualified by Article 10 and that a failure to notify the receiving state precluded an appointee’s immunity. In any case the receiving state has special powers of control in case of appointments to more than one state (Article 5(1)), appointment of non-nationals (Article 8), and excessive appointments (Article 11). In addition, Article 9(1) permits the receiving state to declare a proposed appointee persona non grata prior to arrival. There is no requirement to give reasons for such a rejection.36

(D)  Termination of Functions

Diplomatic relations are consensual and may be terminated by withdrawal of the mission by either the sending or receiving state.37

The sending state may for its own reasons, practical or political, terminate the functions of individual staff members on notification to the receiving state. Under VCDR Article 9(1), the receiving state may also, at any time and without explanation, declare any member of a diplomatic mission persona non grata or not acceptable. In such a case, the sending state must either recall the individual in question or terminate his or her functions within the mission. Under Article 9(2), a refusal by the sending state to comply with such a declaration gives the receiving state the right to refuse recognition of the individual as a member of the mission.

Following its codification in the VCDR, the persona non grata rule has been used to respond to conduct which was not considered by the ILC, a sign of versatility rather than misuse.38 It was used extensively during the Cold War to remove suspected spies. In the modern era, it is most frequently invoked for espionage, involvement in terrorist or subversive activities, and other criminal behaviour. For example, in 1976 the entire diplomatic staff of the North Korean missions to Denmark, Finland, Norway, and Sweden were declared persona non grata following the revelation that the embassies(p. 402) were a front for the illegal import and sale of drugs, cigarettes, and alcohol.39 From the mid-1980s the UK has declared various embassy staff members persona non grata for the consistent violation of parking regulations in London; when the outstanding fines were paid, the declarations were withdrawn.40

(E)  Premises and Facilities

VCDR Article 25 provides that the receiving state ‘shall accord full facilities for the performance of the functions of the mission’. Other provisions refer to freedom of movement for members of the mission, subject to legal restrictions established to ensure national security,41 and ‘free communication on the part of the mission for all official purposes’.42 A particular problem is the acquisition of premises as some domestic legal systems may exclude a market in land or restrict the acquisition of land by aliens or foreign states. The ILC draft43 had required the receiving state either to permit acquisition by the sending state or to ‘ensure adequate accommodation in some other way’. The VCDR contains less decisive provisions in Article 21.

4.  Inviolability of Missions

(A)  Premises44

A consequence of the establishment and functioning of a mission is the protection of the premises from external interference. The mission premises, including ancillary land, are the headquarters of the mission and benefit from the immunity of the sending state.45 The principle flows from the concept of diplomatic immunity, and is pre-Grotian in origin.46 VCDR Article 22 recapitulates the customary position, providing expressly for the inviolability of the mission from intrusion by agents of the receiving state (Article 22(1)), and setting out the receiving state’s duty to take all appropriate(p. 403) steps to protect the premises of the mission against intrusion or damage and to prevent any disturbance of the mission’s peace or impairment of its dignity (Article 22(2)).47

Article 22(1) contains no proviso relating either to cases of emergency, for example, the situation in which the premises present a pressing danger to the surrounding district by reason of fire, or to countermeasures in case of a use of the premises by the staff themselves for unlawful purposes. It is a nice question whether, if remedial steps were taken by the host state, a defence of necessity or force majeure could be sustained,48 and in any event countermeasures infringing on inviolability are excluded.49 The practice to date has generally been that missions will avoid at all costs calling on external assistance in the event of an emergency.50

It follows from Article 22 that writs cannot be served, even by post, within the premises of a mission but only through the local Ministry for Foreign Affairs.51 Article 22(2) creates a special standard of care over and above the normal obligation to show due diligence in protecting aliens within the state. The International Court found that breaches of Article 22 had occurred in Armed Activities on the Territory of the Congo (Democratic Republicof the Congo v Uganda) in respect of attacks against the Ugandan embassy in Kinshasa by Congolese troops.52

Embassy bank accounts are protected by VCDR Article 24, as are archives or documents of the mission, which are ‘inviolable at any time and wherever they may be’.53

(B)  Diplomatic Asylum54

The VCDR contains no provision on diplomatic asylum, although in Article 41 the reference to ‘special agreements’ allows for bilateral recognition of the right to give asylum to political refugees within the mission. The issue was deliberately excluded from the agenda during the ILC’s preparatory work. It is doubtful if a right of asylum for either political or other offenders is recognized by general international law.55 There is(p. 404) a qualified right under the Havana Convention on Asylum of 192856 and it may be that a Latin-American regional custom exists.57

The question of diplomatic asylum under the VCDR is dependent on the joint application of Article 41(1)—on respect for law and non-interference in the affairs of the receiving state—and Article 22, which allows no exception to the inviolability of a diplomatic mission. Thus while there is no right to grant asylum, once one or more refugees have been accepted onto embassy property the receiving state cannot retrieve them, a situation which will ordinarily force the sending and receiving state to the negotiating table. In 2002, for example, various groups from North Korea sought refuge in sympathetic Western embassies in Beijing. Twenty-five North Korean defectors took refuge in the Spanish embassy; following negotiations between China, South Korea, Spain, and the Philippines, they were returned to Seoul via Manila.58

(C)  Archives, Documents, and Official Correspondence59

The VCDR establishes the inviolability of the archives and documents of the mission ‘at any time and wherever they may be’,60 as well as official correspondence.61 It is provided simply that ‘the diplomatic bag shall not be opened or detained’.62 A significant breach of this obligation was the subject of Tehran Hostages before the International Court. The US embassy was ransacked and documents purporting to come from the diplomatic archive of the mission disseminated by the militants and media outlets controlled by the Iranian government.63

The evidence of abuse of the diplomatic bag in the form of drug trafficking or involvement in terrorist activities has led the UK government to resort to the scanning of bags where there are strong grounds of suspicion: a member of the relevant mission is invited to be present.64 In 1989 the ILC adopted a set of more precise rules concerning diplomatic bags and diplomatic couriers, but no agreement could be reached in the General Assembly.65

(p. 405) A diplomatic bag is given its character by its express label, though its contents may attract de facto protection under other provisions of the VCDR. For example, the Eritrea-Ethiopia Claims Commission held that the interception of an Ethiopian diplomatic bag in 1999 by Eritrean officials at Asmara airport 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.66

As the mission does not have separate legal personality, archives and other documents remain the property of the sending state. Where there is a change of government, ownership of these materials will be transferred to the new government by the receiving state. The new government may then enforce any rights accruing to it through ownership of the materials, though in so doing it will also assume responsibility for any related liabilities.67

(D)  Other Property

VCDR Article 22(3) expands protection to other embassy property: the premises of the mission, their furnishings, and other property, as well as the means of transport of the mission are immune from search, requisition, attachment, or execution.

5.  Diplomatic Agents

(A)  Inviolability

VCDR Article 29 provides:

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.

This inviolability is distinct from immunity from criminal jurisdiction. As with inviolability of the mission premises, there is no express reservation for action in cases of emergency, for example a drunken diplomat with a loaded gun in a public place.68

VCDR Article 30 provides that the private residence (including a temporary residence) of a diplomatic agent is likewise inviolable, as are the agent’s papers, correspondence, and property, subject to Article 31(3). However, there is no jurisdictional immunity in case of a real action concerning immovable property and, whilst no measures of execution may be taken against property, courts may be unwilling to(p. 406) support measures of self-help undertaken by the diplomatic agent to recover premises from a person in possession under a claim of right made in good faith.69

It has recently been suggested that the scope of the duty in Article 29 should include indirect attacks on the dignity of a diplomat, or even events in general which may embarrass or offend a diplomat. In Aziz70 a former wife of the Sultan of Brunei brought proceedings against a fortune teller for the return of property given under a false understanding. The Sultan intervened, arguing that as a foreign head of state he was entitled to the same protections as offered to a foreign head of mission under section 20 of the State Immunity Act 1978 (enacting VCDR Article 29) and that there was a duty to prevent any attack on his dignity. The Court disagreed, finding that no outrage on the Sultan’s dignity would be committed if the judgments in question were published. Collins LJ concluded:

I am far from convinced by the material before us that there is a rule of customary international law which imposes an obligation on a State to take appropriate steps to prevent conduct by individuals which is simply offensive or insulting to a foreign head of state abroad.71

This position is consistent with the functional framework of modern diplomatic law.

(B)  The Concept of Immunity72

Diplomatic agents enjoy immunity from local curial jurisdiction, not an exemption from the substantive law.73 The immunity can be waived and the local law may then be applied. VCDR Article 41(1) stipulates that ‘it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State’,74 though without prejudice to those privileges or immunities.

(C)  Immunity of Serving Agents from Criminal Jurisdiction75

VCDR Article 31(1) provides without qualification that ‘a diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State’.76 This has long been(p. 407) the position in custom. A diplomatic agent guilty of serious or persistent breaches of the law may be declared persona non grata but is immune from prosecution while in post, irrespective of the character of the crime or its relation to the functions or work of the mission.77

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