Public International Law/Diplomatic Relations





Authors: Walter Arévalo. (  Research contributors: Gabriel Concha, Valentina Garzon)  Required knowledge: Subjects of International Law.

Learning objectives: Understanding the background, functions, privileges and immunities surrounding diplomatic relations.

A. Background
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 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, often called "Public Diplomacy".

Diplomatic relations have also evolved with the emergence of international organizations. They have changed the way States interact, 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 should not be confused with foreign policy. Foreign policy usually 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 overseas and other goals, such as the protection of its nationals abroad. 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 contexts. Meanwhile, diplomacy tends to focus on the study of the permanent relations and the practices of representation and interaction between States.

B. Diplomatic relations and Diplomatic missions
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. Usually, after an unilateral act of recognition, States begin diplomatic relations under the principle of reciprocity. Each State may, at any moment, finalise 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 of said relations itself is not considered a breach of international law. Political crises may lead States to promptly ending or suspending diplomatic relations, that can be reinstated quickly by both governments if an agreement is achieved.

I. Functions of a Diplomatic Mission
Diplomatic missions have as main functions:


 * 1) Representations and protection of state´s citizens abroad
 * 2) Communication and political representation between the sending State and the receiving state
 * 3) 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
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, which specifies the rank 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 to its pair in the receiving 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 five years and the sending state has to inform them of the position and functions that they are going to perform.

It is common practice that the personnel for technical issues (maintenance, construction or repair work) cannot stay for more than 6 months, in case of the need to extend that time, the sending State must explain the reason behind the decision. The State must address what type of work is being done and how longer is going to take to finish it.

The immunities usually granted to the State representative can be extended to the service staff. 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 comply with private financial obligations. In serious criminal acts, the receiving state may ask for permission to the sending state to remove the diplomatic immunity. Also, the difference betweens acts iure imperii and acts iure gestionis implies differences in the regime of immunities applicable to acts related to the mission and private acts.

III. Naming and agreement of the diplomatic staff
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 an approval 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 does not need to go through a naming process as they will not have the actual political representation of the sending State in the receiving State. In consequence, each state may designate the staff without the need for consent from the hosting state.

IV. Ending and revocation
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, and, as the ending of diplomatic relations can be done at any time. Although it is not an obligation. The declaration of a member of the diplomatic mission as persona non grata, usually is meet with the application of the principle of reciprocity.

C. Differences with consular relations
Diplomatic relations usually give way to consular relations but are not the same. The latter can exist without the first one. Consular relations are technical and administrative relations aimed to procure the rights of citizens abroad. These are regulated by a mixed regime: public international law and domestic law. Consular relations, similarly to diplomatic relations, are born from a mutual agreement between the recipient state and the sending state. There’s also a set of 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 are extensive, among which we can cite 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 for 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) (i.e Visas, Electoral support abroad)

There are two types of consuls: career and honorary consuls (Article 1 paragraph 2 VCCR). Career consuls usually perform all the available consulary tasks, and are nationals of the sending State. Honorary consuls do not perform all these tasks and are usually nationals of the recipient country.

A consul can only be named after there is an agreement with the sending country which is basically an authorization of the sending State and with the expedition of an acceptance which is the authorization of the recipient State.

D. Vienna Convention on Diplomatic Relations of 1961
The Vienna Convention of 1961 regarding diplomatic relations (VCDR) is the main instrument that regulates diplomatic law. Before the Convention, diplomatic relations were managed only by customary international law. The United Nations ILC, formed in 1949 under the goals of the Sixth (legal) Committee of the United Nations General Assembly, was engaged in the preparatory works for an instrument that would later become the Vienna Convention on Diplomatic Relations (VCDR). The Convention, which today reflects and develops customary law, includes the functions of diplomatic missions, their 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, among 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.Moreover, in 1928 during a Pan American Union meeting the Havana Convention included a series of rules regarding immunities. Later in 1931 the Harvard Research Draft Convention brought new ideas to codify diplomatic law.

With the beginning of the United Nations era 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 VCDR 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 participated in the commission and in 1958 the ILC presented a draft. Finally in 1961 at the city of Vienna the UN conference was held. 81 states participated and 18 April of 191 the Convention was aopted.

During the discussion at the conference one of the main concerns were communications. Until then it was 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 to develop in the field. In addition, fears of broadcastings from an embassy to the local population was presented as problematic during 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.

Key Provisions

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 case, armed subjects fired against civilians on the street from within the Libyan Embassy. 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.

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.

Diplomatic pouch

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 examinations 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 the ones included in 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

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.

Exceptions

There are some exceptions to this articlethat can be found in the paragraph a, b and c of the same article. The exceptions are the following:


 * 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.

Art 32

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.

Art 39

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.

Art 40

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.

Art 41

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
Background

As said before, diplomatic relations originate from customary law, Not the same happens with the immunity of international organizations which emerges from the constituent treaty of the organization. The tailor base approach for each scenario will determine what is the regime applicable between the hosting state and the each IO and so, it may not be extended universally.

Differences

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 implies that IO's are always in the territory of a 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 difference can be seen in the sources of the immunity of its staff. While in diplomatic relations the staff finds their immunity depending on the nationality (nationals of the sending State are usually protected by immunity and nationals from the receiving State working in the Embassy are not), in IOs the link will depend on the functional relation. Since IO's dont have population, they usually constitute their staff with nationals of their member states and the host state, these individuals can be covered by privileges and immunities, despite of their nationality, depending on what is agreed in the constitutive treaty or seat agreement as functional immunities needed for the object and purpose of the organization.

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 in charge 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.

Further Readings

 * Arevalo-Ramirez, Walter, and Ricardo Abello-Galvis. "The immunity of international organizations in labour disputes. developments before international tribunals, national courts and the colombian jurisdiction." Braz. J. Int'l L. 18 (2021): 137.