Vienna
Convention on Diplomatic Relations, purpose and principles as it relates to
State Protocol.
By
MacPherson Mukuka
Bachelor
of Communications in Journalism
1.0 Introduction
With regards to the universal
participation of independent states international affairs, the amount and
degree of compliance among State parties and the impact on diplomatic influence
has had on the global legal order, the Vienna Convention on Diplomatic
Relations (VCDR) stands out to be one of the most outstanding treaties,
enabling the United Nations to organise and have a progressive and improved
international law. The Convention’s success results not only by remarkable
nature of prior work by the negotiating skills of State representatives at
international conferences, but also to the strong and stable ‘simple rules’ of
diplomatic law that emphasis mutual benefits derived from adherence.
1.1 Background of the convention
Following
the agreement in 1961, the VCDR, went into force on 24 April 1964 in accordance
with Article 51 (1) of the Convention. It sets out how independent countries
can establish, uphold and, where necessary, terminate diplomatic relations. The
convention defines who a diplomat is and his/her entitlement to special
privileges and immunities. These include immunity from civil and criminal prosecution in the host
state and exemption from all dues and taxes. As is stated
in the preamble of the Convention, the rules are intended to facilitate the
development of friendly relations among nations, irrespective of their
differing constitutional and social systems. The purpose of such privileges and
immunities is not to benefit individuals but to ensure the efficient
performance of the functions of diplomatic missions (United Nations, 1961).
Veljić
(2012) stated that the Convention required diplomats to obey local laws,
however, the only sanction permissible under the Convention, in the absence of
a waiver of immunity, was expulsion. This prevented the potential abuse by
local authorities of the power of a state's law enforcement system. Reciprocity
also formed an effective sanction for the observance of the rules of the
Convention.
1.3 Vienna
Convention on Diplomatic Relations
The
1961 VCDR outlines the rules of diplomatic law, ratified by Zambia on 16th
June 1975 and implemented by the Diplomatic Immunities and Privileges Act of
1965. The Convention codifies the rules for the exchange and treatment of
envoys between states, which have been firmly established in customary law for
hundreds of years (United Nations, 1961).
It
is an international treaty that defines a framework for diplomatic relations
between sovereign states. It categorically states the privileges of a
diplomatic mission that enable diplomats to perform their function without fear
of intimidation or harassment by the host country. This exclusively holds the
legal foundation for diplomatic immunity. Its articles are regarded as a
footing of modern international relations. As at 19th November 2019,
the VCDR had 60 signatories and 192 state parties.
Boulgaris,
Hecht, and Jazairy (2015) stated that VCDR emphasizes it is important that
foreign relations personnel can carry out their duties without intimidation by
the host government. In particular, the Convention establishes rules for the
appointment of foreign representatives, the inviolability of mission premises,
protection for the diplomat and his/her or her family from any form of arrest
or detention, protection of all forms of diplomatic communication, and the
basic principle of exemption from taxation. There is also immunity from civil
and administrative jurisdiction with limited exceptions, and need for diplomats
to respect the laws of the host state, and guidance on policy on impaired driving.
The
fundamentals of diplomatic protocol are rooted in the system of privileges and
immunities. This system allows diplomats to exercise their duties in a foreign
country in full security of their person, the members of their household, their
workplace (embassy or mission), their private residence, their documents, and
the like. When the United Nations was established, the privileges and
immunities of its officials and of the member states representatives needed to
be defined. The current legal system is based on a series of international
agreements starting with the United Nations Charter up to the VCDR (ibid).
Protocol
is defined in the Oxford Dictionary as the official procedure or system of
rules governing affairs of State or diplomatic occasions. The term protocol is
derived from the Greek word protokollen, a fusion of the words protos (first)
and kola (glue). It referred to a sheet of paper glued to the front of a
document to provide it with a seal of authenticity, a practice that serves as a
reminder of today’s Letters of Credentials (Oxford University Press, 2019).
Barker
(2006) indicates that the Vienna Convention on Diplomatic Relations holds a
complete framework for the institutionalisation, preservation and termination
of diplomatic relations on a basis of consent between sovereign countries. It
specifies the functions of diplomatic missions, the formal rules regulating
appointments, declarations of persona non grata of a diplomat who has in some
way given offence, and precedence among heads of mission. It further sets out
exclusive rules, privileges and immunities to enable diplomatic missions act
without fear of coercion or harassment through enforcement of local laws and to
communicate securely with their sending Governments.
In
its preamble, the Vienna Convention enumerates these conditions by clearly
stating “that the purpose of such privileges and immunities is not to benefit
individuals but to ensure the efficient performance of the functions of
diplomatic missions as representing States” (United Nations, 1961. p.1).
The
Convention provides for withdrawal of a mission where economic status and
security in the receiving state is not guaranteed and if for some reasons breach
of diplomatic relations which may happen as a result of abuse of immunity or
severe deterioration in relations between sending and receiving States.
In
cases where a diplomat acts against the host state by breaching the diplomatic
code of behaviour through words or actions, the host nation can within the
powers as provided by the Vienna Convention, expel the erring diplomat.
A
clear example in relation to this provision is the expulsion of Cuban Ambassador
accredited to Zambia, Nelson Pages, in 2018. This followed the ambassador’s
decision to attend a launch of political party whose values and principles are
rooted in Cuba. Before his expulsion, then Cuban Ambassador to Zambia Nelson
Pages Vilas, had graced the launch of the Socialist Party in Zambia where he said
the Cuban government wished the newly established opposition Socialist Party in
Zambia, ‘all the best’. This prompted the government to expel Ambassador
Pages-Vilas on grounds that his actions were partisan and a breach of
diplomatic ethics, practice and standards (Lusakatimes.com, 2018).
The
government acted in order based on the 1961 Vienna Convention which stresses
that missions must respect local laws and not interfere in the host nation's
internal affairs.
The
action was also in accordance with Article 9 of the convention which gives
powers to the receiving state to without having to explain its decision, notify
the sending State that the head of the mission or any member of the diplomatic
staff of the mission is not appreciated or wanted and can no longer be allowed
to stay in that particular state (persona non grata). In any such case, the
sending State shall, as appropriate, either recall the person concerned or
terminate his functions with the mission.
And
it so happened that the Cuban Government appointed another diplomat to Zambia, Angel Villa, as acting charge d’affaires at
its embassy in Zambia (Zambia Daily Mail, 2018).
The
standoff between Britain and Ecuador in 2012 raised the prospect of a major
diplomatic incident if British police forced an entry into the embassy. Ecuadorian
officials stated that any such decision would be an outrageous breach of
international law. British officials insisted that if they did so, it would be
within British law (The Guardian, 2012).
Under
international law as well as within the confines of the VCDR, security forces globally
are not permitted to cross the gates of an embassy unless with express consent
of the ambassador despite the embassy being in the territory of the host
nation. The VCDR codified the rule of inviolability, which all state parties
must observe because their own diplomatic missions may otherwise be at risk
elsewhere. Article 22 of the VCDR endorses the inviolability of mission
premises the premises of the mission shall be inviolable. The agents of the
receiving State may not enter them, except with the consent of the head of the
mission. This implies barring any right of entry by law enforcement officers of
the receiving State and imposing on the receiving State a special duty to protect
the premises against intrusion, damage, disturbance of the peace or
infringement of dignity. Even in cases of response to abuse of this provision
or emergency, the premises may not be entered without the consent of the head
of mission (United Nations, 1961).
Ture
(2019) noted that the principle of inviolability of diplomatic premises had
long been a contested issue. For instance, in 1991, two Turkish citizens were
killed outside the Iraqi mission in Istanbul by the Iraqi security personnel
firing from inside the building. Turkish police, after obtaining a court
warrant, entered the building and apprehended the shooter. The police were
obliged by the VDCR to keep out of the archive room and offices and they did.
This
was done in accordance with article 24, of the VCDR ensured the inviolability
of mission archives and documents within and even outside mission premises.
This was to stop the hosting state from seizing or inspecting the documents or
having permission to the documents in court cases. Article 27 guaranteed free
communication between a mission and its sending State by all appropriate means,
and ensured that the diplomatic bag carrying such communications were not
opened or detained even on suspicion of abuse. Given the purposes of diplomatic
missions, secured communication for information and instructions was probably
the most essential of all immunities (United Nations, 1961).
Further,
Article 29 provided inviolability for the person of diplomats and article 31
established their immunity from civil and criminal jurisdiction. This was with
precise exceptions to immunity from civil jurisdiction where previous State
practice had varied. Immunity from jurisdiction like other immunities and
privileges may be waived by the sending State, and article 32 specifies the
rules on waiver (Ture, 2019).
These
three provisions in most countries significantly reduced the numbers of those people
who were more likely to bring into disrepute the system of privileges and
immunities and were fully in accordance with the basic justification applicable
throughout the Convention of limiting immunities to what was essential to
ensure the efficient performance of the functions of diplomatic missions as
representing States.
However,
Denza (2016) noted that host states seemed not to be desperate against
diplomats who had committed crime. The host countries usually asked the sending
state for the removal of its diplomat’s immunity in case of misconduct. If it the
request was turned down or ignored, the criminal diplomat may be expelled from
the country by being declared persona-non grata. The phrase is the diplomatic
expression that the host country no longer acknowledges the person as the
legitimate representative of the sending state.
This
came during the 1980s from those alarmed at the opportunities it provided for
abuse as demonstrated in particular when following the murder of a policewoman
by shooting from the premises of the Libyan diplomatic mission in London the
United Kingdom broke diplomatic relations and all those within the mission left
England under the shield of immunity. More recently attacks have been discussed
by scholars concerned with the conflict between immunity and the human right of
access to justice, or at immunity for violators of international criminal law
and in particular torturers. But in practice there has been remarkably little
erosion of the immunities of diplomats as it has been widely accepted that the VCDR
limit immunities to what is essential for the functioning of diplomacy.
The
focus of public concern has instead shifted to the vulnerability of diplomats
to terrorist attacks. These might take the form of kidnapping diplomats with
demands for ransom or release of prisoners – a serious problem in the 1970s
until brought somewhat under control by collective determination by Governments
that taking “all appropriate measures” to protect diplomats did not mean
capitulating to blackmail. Alternatively terrorism might involve besieging or
bombing embassies – most horrifically the United States Embassies in Kenya and
Tanzania in 1998 (Wikipedia
Foundation Inc, 2019).
For
the most part, parties to the Convention are in no way complicit in these
attacks and have done their best to provide protection – sometimes helped by
wealthier sending States. The striking exception was the detention for over a
year of the hostages in the United States Embassy in Tehran with the
acquiescence of the relatively new revolutionary Government of Iran. The United
States brought proceedings against Iran before the International Court of
Justice basing itself mostly on the Vienna Convention on Diplomatic Relations
including the Optional Protocol on the Settlement of Disputes to which both
States were parties. Iran did not make serious efforts to justify its conduct
in legal terms before the Court and the Court’s Judgment in the United States
Diplomatic and Consular Staff in Tehran case (International Court of Justice,
1980) contains important analysis of many of the principles in the Convention
and greatly assisted the United States in retaining the support of the
international community and securing eventual release – brokered by Algeria –
of the hostages. More recently, the International Court of Justice in 2005 upheld
a counter-claim by Uganda in the Case concerning Armed Activities on the
Territory of the Congo (Democratic Republic of the Congo v. Uganda) that
Congolese soldiers had occupied the Ugandan diplomatic mission in Kinshasa and
violated article 29 of the Convention by threatening and maltreating staff on
the premises.
In
national courts there have been hundreds of cases where the Vienna Convention
has been applied, since many of its most frequently invoked provisions concern
whether a national court may assume jurisdiction over civil or criminal
proceedings and what evidence may be admissible in national proceedings. Most
of these cases concern ambiguities in the text on such questions as the true
meaning of the exceptions to immunity from civil jurisdiction, the construction
of the term “permanent resident”, the protection of an embassy’s bank account
from enforcement proceedings, or the balance to be struck between protecting
the dignity of embassy premises and permitting effective exercise of human
rights to demonstrate and to speak freely. Unlike the cases described in the
previous paragraph, they did not involve fundamental breaches of the
Convention.
The
Convention has also been extensively drawn on by later treaties regulating
immunities and privileges. Its provisions were used as a starting point in
drawing up the 1963 Vienna Convention on Consular Relations (VCCR) and the 1969
New York Convention on Special Missions – in the latter case with unfortunate
results in that insufficient account was taken of the differences between
permanent missions and most special missions so that the Convention has
attracted only limited support. It is used as a point of reference for
determining the treatment to be accorded to the premises, archives and senior
officers of a substantial number of international organizations. Sometimes it
is used on a similar basis for agreements with the host State regulating the
status of military forces or civilian missions despatched either by
international organizations or by States providing military or civilian
assistance. The 2004 United Nations Convention on Jurisdictional Immunities of
States and Their Property contains references to its provisions, since in the
nature of things the rules on state immunity and on diplomatic immunity, though
different in their origins and justification, are closely intertwined. As for
the treatment given to heads of State, heads of Government and foreign
ministers in their personal capacity – though practice is somewhat varied – it
is accepted that the rules in the VCDR form a guide and perhaps a minimum standard
(Denza, 2009).
The
first international instrument to codify any aspect of diplomatic law was the
Regulation adopted by the Congress of Vienna in 1815 which simplified the
complex rules on the classes of heads of diplomatic missions and laid down that
precedence among heads of missions should be determined by date of arrival at
post. Until then precedence – which guaranteed direct access to the receiving
sovereign as well as ceremonial honours – had caused numerous and bitter
disputes. Codification among States of immunities and privileges of diplomatic
agents did not begin until the Havana Convention of 1928 drawn up among the
States of the Pan-American Union – but this did not well reflect current
practice either in its terminology or its rules. More influential was the Draft
Convention drawn up in 1932 by the Harvard Research in International Law (ibid).
The
establishment within the United Nations framework of the International Law
Commission opened the way to comprehensive codification to confirm what were
accepted as well-established – if not universally respected – rules of
international law. There remained areas on which State practice was divergent –
in particular the privileges and immunities of junior staff, the position of a
diplomat who was a national of the host State and the extent of exceptions to
the immunity from jurisdiction of a diplomat – so that any convention would
contain an element of “progressive development” as well as codification of the
law.
In
a communication received on 16 October 1985, the Government of Zambia specified
that upon succession, it had not wished to maintain the objections made by the
United Kingdom of Great Britain and Northern Ireland with respect to articles
11 (1), 27 (3) and 37 (2).
Conclusion
According
to Ratner (2018), the VCDR has established itself as a cornerstone of modern
international relations. This is despite the need for implementing national legislation
in a number of State parties, it came into force following 22 ratifications
only three years from its adoption and almost all States in the world are now
parties. The regime it sets out for the conduct of diplomatic relations has
become remarkably uniform as reservations made by ratifying States on a few
points which had been controversial during the negotiations have in many cases
been withdrawn or simply never applied. The Convention has proved resilient to
attack on its fundamental principles.
References
Barker, J.C. (2006). The
Protection of Diplomatic Personnel. Aldershot: Ashgate.
Boulgaris, J, M. Hecht, A. Jazairy, I. (2015) .Practices of Diplomatic Protocol in Geneva. Geneva: United Nations Institute for Training
and Research.
Brown, J. (1988). Diplomatic
Immunity: State Practice under the Vienna Convention on Diplomatic Relations”
Journal of International and Comparative Law, vol. 37, 1988, p. 53. Accessed
on November 15, 2019, https://www.cambridge.org/
Denza, E. (2009). Vienna Convention on Diplomatic Relations. United
Nations Audio-visual Library of International Law. United Nations.
Denza, E. (2016). Diplomatic Law: Commentary on the Vienna
Convention on Diplomatic Relations (4th Edition).
Department of Protocol,
Ministry of Foreign Affairs of the Kingdom of Thailand (2014) Guidelines on Protocol Practice.
Foreign Service
Institute- U.S Department of State 2011, Protocol of the Modern Diplomat,
Foreign Service Institute- U.S Department of State, Accessed on November 20,
2019, < https://2009-2017.state.gov/>
Global Affairs Canada:
Vienna Convention on Diplomatic
Relations. Accessed on November 19, 2019, <https://www.international.gc.ca/>
Lusaka times (2018,
April 1), Zambia expels Cuban Ambassador for attending and addressing an
Opposition Party meeting, Accessed on
November 20, 2019, <https://www.lusakatimes.com/>
Ministry of Legal
Affairs (1965). Government of the Republic of Zambia: Diplomatic Immunities and
Privileges Act. Lusaka: Ministry of Legal Affairs.
Oxford University
Press, 2019, Protocol, Oxford University Press, Accessed 19 November 2019, < https://www.oxfordlearnersdictionaries.com/>
Ratner, S.
(2018). The Khashoggi Murder: How Mohammed Bin Salman Underestimated
International Law.
Accessed on November 20, 2019, <https://www.lawfareblog.com/
>
The Guardian (2012).
Can police enter an embassy? A guide. Accessed
on November 20, 2019, <https://www.theguardian.com/>
Ture, C. (2019). After
Khashoggi: how diplomatic space became a crime scene. Accessed 21 November,
2019, <https://www.opendemocracy.net/>
United Nations (1961). Vienna
Convention on Diplomatic Relations. Vienna: United Nations.
Veljić, Z. (2012). Diplomatic Protocol.
Accessed on November 16, 2019, <http://www.mfa.gov.rs/en/embassies/dipl-protocol>
Wikipedia Foundation Inc, 20199, The 1998 United
States Embassy bombings, Wikipedia Foundation Inc, Accessed 19 November 2019, <https://en.wikipedia.org › wiki>
