Diplomatic Relations

Diplomatic Relations are the official relations established between States through their authorised diplomatic representatives for the purpose of communication, negotiation, cooperation and protection of their respective interests.

They form an essential part of peaceful international relations and are primarily governed by customary International Law and the Vienna Convention on Diplomatic Relations, 1961.

Meaning of Diplomatic Relations

Diplomatic relations refer to the formal relationship between two States through which they maintain communication and conduct official dealings with each other.

Diplomatic relations may involve:

• negotiation of treaties;
• political communication;
• economic cooperation;
• protection of nationals;
• settlement of disputes;
• exchange of information;
• representation of the sending State;
• promotion of friendly relations.

The principal institution through which diplomatic relations are conducted is the diplomatic mission.

Diplomatic Mission

A diplomatic mission is the permanent official representation of one State in another State.

The State sending the mission is known as the sending State.

The State receiving it is known as the receiving State.

Thus:

Sending State → Diplomatic Mission → Receiving State

The head of the diplomatic mission is generally the ambassador or another diplomatic representative.

Vienna Convention on Diplomatic Relations, 1961

The principal international instrument governing diplomatic relations is the Vienna Convention on Diplomatic Relations, 1961.

It codifies many rules that had previously developed through customary International Law.

The Convention deals with:

• establishment of diplomatic relations;
• diplomatic missions;
• appointment of diplomats;
• functions of missions;
• privileges and immunities;
• diplomatic premises;
• diplomatic communications;
• termination of diplomatic relations.

Establishment of Diplomatic Relations

Diplomatic relations between States are established by mutual consent.

Neither State is generally required to establish diplomatic relations with another State.

Therefore:

State A + State B → Mutual consent → Diplomatic relations

The establishment of diplomatic relations normally involves agreement concerning the exchange of diplomatic representatives.

Establishment of Diplomatic Missions

Under the Vienna Convention, the establishment of diplomatic relations between States and the establishment of permanent diplomatic missions occur by mutual consent.

A State therefore cannot unilaterally establish an embassy in another State without the receiving State’s consent.

Functions of Diplomatic Missions

Article 3 of the Vienna Convention identifies the principal functions of a diplomatic mission.

These include:

Representation

The mission represents the sending State in the receiving State.

Protection of Interests

The mission protects the interests of the sending State and its nationals in the receiving State, within the limits permitted by International Law.

Negotiation

Diplomatic missions negotiate with the government of the receiving State.

Reporting

They ascertain conditions and developments in the receiving State through lawful means and report them to the government of the sending State.

Promotion of Relations

They promote friendly relations and develop economic, cultural and scientific relations between the States.

Diplomatic Agents

Diplomatic agents are officials representing the sending State in the receiving State.

The principal categories of heads of diplomatic missions under the Vienna Convention are:

• ambassadors or nuncios;
• envoys, ministers and internuncios;
• chargés d’affaires.

The classification does not generally affect the privileges and immunities attached to diplomatic status.

Appointment of Diplomatic Agents

The sending State appoints its diplomatic representatives.

However, the receiving State must accept the appointment of the proposed head of mission.

This is achieved through agrément.

Agrément

Agrément is the consent given by the receiving State to the appointment of a proposed head of diplomatic mission.

The receiving State is not required to give reasons if it refuses to grant agrément.

Thus:

Sending State proposes → Receiving State grants or refuses agrément

Persona Non Grata

The receiving State may declare a diplomatic agent persona non grata.

This means the receiving State no longer accepts the individual as a diplomatic representative.

Under Article 9 of the Vienna Convention, the receiving State may declare a diplomatic agent persona non grata at any time and without having to explain its decision.

The sending State must then either:

• recall the person; or
• terminate the person’s functions.

Privileges and Immunities

Diplomatic relations depend heavily upon the system of diplomatic privileges and immunities.

These protections are not intended to give diplomats personal advantages.

Their primary purpose is to ensure that diplomatic missions can perform their functions effectively.

Important protections include:

• personal inviolability;
• immunity from criminal jurisdiction;
• certain immunity from civil and administrative jurisdiction;
• inviolability of diplomatic premises;
• inviolability of diplomatic documents;
• freedom of communication.

Personal Inviolability

Under the Vienna Convention, the person of a diplomatic agent is inviolable.

A diplomatic agent cannot ordinarily be:

• arrested;
• detained;
• subjected to coercive measures by the receiving State.

The receiving State must treat the diplomatic agent with appropriate respect and take appropriate steps to prevent attacks against the diplomat’s person, freedom or dignity.

Immunity from Criminal Jurisdiction

Diplomatic agents generally enjoy immunity from the criminal jurisdiction of the receiving State.

This is one of the strongest forms of diplomatic immunity.

Therefore, a diplomat generally cannot be prosecuted before the courts of the receiving State while enjoying applicable diplomatic immunity.

Immunity from Civil and Administrative Jurisdiction

Diplomatic agents also generally enjoy immunity from the civil and administrative jurisdiction of the receiving State.

However, Article 31 recognises certain exceptions, including proceedings concerning:

• private immovable property;
• succession;
• professional or commercial activity exercised outside official functions.

Waiver of Immunity

Diplomatic immunity belongs to the sending State, not simply to the individual diplomat personally.

The sending State may therefore waive the immunity of its diplomatic agent.

A waiver of immunity from jurisdiction must generally be express.

Diplomatic Premises

Diplomatic premises enjoy special protection.

The receiving State’s authorities cannot ordinarily enter the premises of the mission without the consent of the head of the mission.

This is known as the inviolability of diplomatic premises.

It applies even where the receiving State’s authorities wish to carry out ordinary law-enforcement functions.

Embassy Does Not Become Territory of Sending State

A common misconception is that an embassy is legally the territory of the sending State.

This is not correct.

The diplomatic premises remain physically within the territory of the receiving State.

They receive special protection and inviolability under International Law, but they do not become foreign territory.

Diplomatic Bag

The diplomatic bag enjoys special protection.

The receiving State must not ordinarily:

• open it;
• detain it.

The bag must bear visible external markings indicating its character.

Diplomatic Communications

Diplomatic missions must be able to communicate freely with their governments.

The Vienna Convention protects official communication between the mission and the sending State.

Diplomatic couriers also receive specific protections in carrying diplomatic communications.

Freedom of Movement

Subject to applicable laws and security restrictions, diplomatic agents generally enjoy freedom of movement within the receiving State.

The receiving State may establish restrictions in certain areas for reasons of national security.

Tax Exemptions

Diplomatic agents and diplomatic missions receive various exemptions from taxation under the Vienna Convention, subject to specified exceptions.

These privileges are intended to facilitate the effective functioning of diplomatic missions.

Respect for Laws of Receiving State

Diplomatic immunity does not mean that diplomats are free to disregard the law.

Article 41 of the Vienna Convention provides that persons enjoying diplomatic privileges and immunities have a duty to respect the laws and regulations of the receiving State.

They must also refrain from interfering in the internal affairs of that State.

Thus:

Immunity from jurisdiction does not mean immunity from responsibility to respect the law.

Diplomatic Relations and Non-Intervention

Diplomatic missions must not interfere in the internal affairs of the receiving State.

Diplomatic representatives are expected to conduct their activities consistently with:

• International Law;
• the Vienna Convention;
• the laws of the receiving State;
• the principle of non-intervention.

Diplomatic Asylum

Diplomatic premises are sometimes used to shelter individuals seeking protection.

However, diplomatic asylum is not a general right under International Law.

Its availability depends upon applicable regional or other legal rules.

The mere fact that a person enters an embassy does not automatically create a universal right to diplomatic asylum.

Severance of Diplomatic Relations

States may decide to break or sever diplomatic relations.

This may happen because of:

• armed conflict;
• serious diplomatic disputes;
• political disagreements;
• allegations of interference;
• national security concerns.

Severance of diplomatic relations does not necessarily terminate all legal relations between the States.

Effects of Severance

When diplomatic relations are broken:

• diplomatic missions may be closed;
• diplomats may be recalled;
• diplomatic functions may cease;
• protecting States may become involved.

The receiving State must still respect certain protections concerning diplomatic premises and property.

Protecting Power

Where diplomatic relations between two States are broken, or where a State has no diplomatic representation in another State, a third State may sometimes act as a protecting power.

The protecting power may undertake certain diplomatic or protective functions on behalf of the State concerned, subject to the consent of the States involved.

Termination of Diplomatic Functions

The functions of a diplomatic agent may end through:

• notification by the sending State;
• notification by the receiving State;
• recall;
• declaration of persona non grata;
• termination of diplomatic relations.

Diplomatic Relations During Armed Conflict

Diplomatic relations may be affected by armed conflict.

However, the severance of diplomatic relations does not mean that the receiving State may simply seize or destroy diplomatic premises.

The Vienna Convention provides protections for the mission and its property.

The interests of the sending State may also be entrusted to a protecting State.

Diplomatic Relations and Consular Relations

Diplomatic relations should be distinguished from consular relations.

Diplomatic Relations

Primarily concern political and official relations between States.

Consular Relations

Primarily concern:

• assistance to nationals;
• passports;
• visas;
• commercial matters;
• civil registration;
• consular assistance.

The two are related but governed by separate legal frameworks.

Diplomatic Relations and State Immunity

Diplomatic immunity and State immunity are also distinct.

State Immunity

Protects the State itself from foreign jurisdiction in appropriate circumstances.

Diplomatic Immunity

Protects diplomatic agents and missions to ensure the effective performance of diplomatic functions.

Both are connected to sovereignty but operate under different rules.

Important Case: United States Diplomatic and Consular Staff in Tehran

In United States Diplomatic and Consular Staff in Tehran (United States v. Iran), 1980, the International Court of Justice considered the seizure of the US Embassy in Tehran and the detention of American diplomatic and consular personnel.

The Court found Iran responsible for violations of its international obligations.

The case is a leading authority on:

• diplomatic premises;
• personal inviolability;
• diplomatic immunity;
• protection of diplomatic missions.

Important Case: Tehran Hostages

The Tehran Hostages case demonstrates that the receiving State has a positive obligation to protect diplomatic missions and diplomatic personnel.

The State cannot simply permit private individuals to attack or occupy a foreign embassy and escape international responsibility.

Importance of Diplomatic Relations

Diplomatic relations facilitate peaceful international cooperation by providing States with permanent channels of communication.

They are important for:

• negotiation;
• dispute settlement;
• crisis management;
• treaty-making;
• economic relations;
• protection of nationals;
• cultural cooperation;
• political dialogue.

Common Confusions

Does an embassy constitute the territory of the sending State?

No. It remains within the territory of the receiving State but enjoys special inviolability.

Can police enter an embassy?

Generally not without the consent of the head of the mission.

Can a diplomat be arrested?

Diplomatic agents enjoy personal inviolability and generally cannot be arrested or detained by the receiving State.

Can diplomatic immunity be waived?

Yes. The sending State may expressly waive immunity.

Can a diplomat ignore local laws?

No. Diplomats have a duty to respect the laws and regulations of the receiving State.

What is persona non grata?

It is a declaration by the receiving State that a diplomatic agent is no longer acceptable.

Can a State refuse a proposed ambassador?

Yes. The receiving State can refuse to grant agrément and does not have to provide reasons.

Does breaking diplomatic relations mean the States are no longer legally related?

No. Severing diplomatic relations does not automatically terminate all other international legal relations.

Topic at a Glance

Point Position Main instrument Vienna Convention on Diplomatic Relations, 1961 Establishment Mutual consent Sending State State sending diplomatic representatives Receiving State State receiving the mission Head of mission Ambassador, nuncio, etc. Agrément Consent to proposed head of mission Persona non grata Declaration that diplomat is unacceptable Main functions Representation, negotiation, protection, reporting Diplomatic premises Inviolable Diplomatic agent Personally inviolable Criminal jurisdiction Generally immune Civil jurisdiction Generally immune, subject to exceptions Waiver By sending State Diplomatic bag Protected Main case US Diplomatic and Consular Staff in Tehran

Quick Revision

• Diplomatic Relations are formal relations between States conducted through diplomatic representatives.
• They are primarily governed by the Vienna Convention on Diplomatic Relations, 1961.
• Diplomatic relations and permanent diplomatic missions are established by mutual consent.
• Major functions of diplomatic missions include:
  • representation;
  • protection of interests;
  • negotiation;
  • reporting;
  • promotion of friendly relations.
• Agrément is the receiving State’s consent to the appointment of a proposed head of mission.
• Persona non grata allows the receiving State to reject a diplomatic agent.
• Diplomatic agents enjoy:
  • personal inviolability;
  • immunity from criminal jurisdiction;
  • specified immunity from civil and administrative jurisdiction.
• Diplomatic premises are inviolable.
• An embassy is not legally the territory of the sending State.
• Diplomatic bags enjoy special protection.
• Diplomats must respect the laws of the receiving State.
• Diplomatic immunity may be waived by the sending State.
• Diplomatic relations may be severed, but certain protections continue.
• The Tehran Hostages case (1980) is a leading authority.
• The essential principle is:

Diplomatic relations enable States to maintain peaceful official communication and representation, while diplomatic privileges and immunities protect the effective performance of diplomatic functions.

Conclusion

Diplomatic relations are a fundamental institution of International Law through which States maintain official communication, representation, negotiation and cooperation with one another. Their legal framework is principally contained in the Vienna Convention on Diplomatic Relations, 1961, which codifies important customary rules concerning diplomatic missions and their personnel. Diplomatic relations are established by mutual consent, and diplomatic missions perform functions including representation, protection of the sending State’s interests, negotiation, reporting and promotion of friendly relations. To enable these functions, diplomatic agents and missions receive important privileges and immunities, including personal inviolability, immunity from criminal jurisdiction and inviolability of diplomatic premises. These protections do not make diplomats free to disregard the laws of the receiving State; diplomats remain under a duty to respect those laws and refrain from interference in internal affairs. The United States Diplomatic and Consular Staff in Tehran (1980) case is a leading authority demonstrating the international obligation to protect diplomatic missions and personnel. Ultimately, diplomatic relations provide the institutional framework through which sovereign States conduct international affairs peacefully and maintain stable channels of communication even during periods of serious disagreement.