Archive | October, 2012

4. Privileges and Immunities

31 Oct

Privileges and Immunities

1. At present, the diplomatic privileges and immunities that States grant each other through their representatives are prerequisite for property for proper performance of the delicate and essential functions usually carried out by diplomatic agents on behalf of their presidents (or Heads of State) and Ministers of Foreign Affairs without intermediaries in the international arena.

2. Privileges and immunities originated as a required protection function enforceable by diplomatic agents. In international practice there have existed for centuries certain privileges and immunities that belong to the heads of state while visiting other States.

3. These privileges and immunities also apply Ministers of Foreign Affairs when they are travelling abroad, and  although no conventional standards have been established, it is evident that they enjoy the same privileges as the ambassadors, who are their subordinates in the domestic situation and have precedence over them in the order of protocol.

3. Privileges and immunities for members of the diplomatic mission are set out in the Vienna Convention on Diplomatic Relations, whose preamble states that such immunities and privileges are granted not to benefit individuals but to ensure the effective discharge of the functions of diplomatic missions as representatives of States.

4. Under that Convention, for official acts performed in the exercise of their functions, diplomatic agents enjoy a special privileges including immunity from jurisdiction, which is the effect of suspending the laws of the States to which they are accredited, or exemptions of the administrative courts, civil and criminal matters, both national and local, including exemptions from arrests, litigation, civil lawsuits, subpoenas and legal penalties.

5. In the same vein, the right of inviolability guaranteed to a duly accredited diplomatic representative is that no one can steal his residence, his means of transport, offices or files, nor enter his residence or office without his permission. Unless there is a waiver by the sending State to the immunity of a diplomatic agent, he may not be arrested or tried, nor shall he be impaired in any way against his person, his dignity and freedom.

6. These privileges are also granted to the diplomatic agent’s family living under the same roof and who are not nationals of the receiving country. Similarly, he has the right to inviolability of the administrative and technical staff of the mission and service staff, whose members are not nationals of the receiving State and not permanent residents of the same.

7. There are also exemptions and privileges, as defined by international conventions and domestic legislation of States, and preserved by the principle of reciprocity referred to as courtesy privileges. These exemptions and privileges are granted especially as it relates to the payment of taxes and customs duties and the right to not having their luggage checked by custom authorities in their country of post.

8. The diplomatic mission should be exempt from all taxes in the receiving state tax. Likewise, the sending States and the chief of mission are exempt from all taxes and levies national, regional or municipal, levies on the premises of the mission if the State is the owner or tenant, except in those cases that represent payment for public or private services and not related to the exercise their official capacity. The regime applicable to consular officials, i.e., the facilities, privileges and immunities enjoyed are listed in the Vienna Convention on Consular Relations. 6.

9. Others that enjoy privileges and immunities in this area are representatives of international organisations as the international officials have to respect conventional rules and bilateral agreements between their agencies and the State concerned or the host receiving State.

© 2012, by Odeen Ishmael

3. Purpose of the diplomatic corps

22 Oct

Purpose of the Diplomatic Corps

1. The institutions that diplomacy has created through its history require them to be properly known and to be useful so that the State may obtain the objectives pursued through its foreign policy, while giving the clearest respect for the rights that are due to all other members of the international community.

2. In this context it should be noted that under modern diplomatic law, a host government may have joint meetings with the entire diplomatic staff accredited by other countries to that particular state in the pursuance of bilateral diplomatic work.

3. The origin of the term “diplomatic corps” dates from 1754, when the Imperial Court of Vienna so designated the meeting of all diplomats accredited to it at that time. The term “diplomatic corps” should not be confused with persons involved in a “diplomatic career” in countries that have it a special corps of diplomatic officials. Strictly speaking, the term “diplomatic corps” refers to all heads of missions of various countries accredited to a State. It should be noted, however, that the expression formerly had another specific less diplomatic meaning which led to some confusion in its meaning since it referred also to all persons employed in the foreign service or diplomatic service.

4. In this regard, the foreign service is the permanent organ of state that is entrusted with the mission to represent and execute the foreign policy of its country according to firm guidelines and instructions. The foreign service is usually composed of diplomatic agents and also by consular officers of the state itself.

5. The renowned German jurist, L. F. Oppenheim, regarded as the father of international law, believed that “the diplomatic corps is not a legally constituted entity and performing functions not legally regulated, but is of great importance as it safeguards the privileges (and immunities) and honours due to diplomatic envoys.”

6. In the Latin American countries, the role of dean of diplomatic corps is assumed by the “Apostolic Nuncio of His Holiness”, as ex officio dean, following the custom established by the Congress of Vienna in 1815, particularly in traditionally Catholic countries. However, in other countries, the dean is the head of mission that occupies first place in seniority among all resident Heads of Mission.

7. Generally, the Dean is assisted in his duties by a vice-dean (chief resident mission next in order of precedence) who also replaces him during his temporary absence. In addition, he is general advised usually by three or four ambassadors (preferably in different geographical areas) for various activities or actions.

8. The Dean of the diplomatic corps has the authority to take the floor during meetings called by the host government to express opinions related to issues that affect diplomatic privileges or involving a serious violation of international law. The Dean’s interventions are usually preceded by a meeting of the Heads of Mission where various matters would be aired followed by discussion on steps to be taken to resolve pressing issues.

9. The Dean also guides newly arrived Heads of Mission to various aspects related to their functions in the receiving State. He also organises a farewell event for each departing Head of Mission.

© by Odeen Ishmael

2. The role of diplomatic attachés

20 Oct

The role of diplomatic attachés

1. Among the oldest positions in the Foreign Service are those of the diplomatic attachés whose functions are more specific and somewhat less well known. (Attaché is a French term in diplomacy referring to a person who is assigned (“attached”) to the diplomatic or administrative staff of a higher placed person or another service or agency. Depending on custom, “’attaché” may be modified to correspond to the gender (i.e., “attaché”).

2. These officials in some countries can be classified according to their specialty, such as economic, press, cultural, tourist, commercial, financial, agricultural, defence (military) and labour.

3. Those who hold positions as diplomatic attachés in the embassies usually possess technical skills in specific areas related to their diplomatic functions.

4. Some countries use this attaché category for their career diplomats at the preliminary stage, generally on probation prior to their appointment as third secretaries. In some Latin American countries, they are also referred to as “aggregates.” Most countries still retain the French language term (attachés) to describe the lower level diplomats within their foreign service.

5. Further, certain nations designate some officials to the category of attaché without specifying a specialisation of functions. This is because some administrative officials require special protection as diplomatic agents whose real function is not desired to be publicly known.

6. In cases where countries draft into their foreign service known experts in specialised areas, they usually name them to the rank of “advisers” to give them higher status than that of the attachés. Such persons may include commercial and cultural “advisers”.

7. Three categories of attachés of particular importance are those responsible for economic, defence (military), and labour.

8. Economic attachés, depending on the size of a country’s embassy and the economic power of the country to which it is accredited, deal with specific economic or trade matters, and sometimes with financial issues if no other officials who are given responsibility for such  functions.

9. Economic attachés may be specified as economic, commercial or financial, and, overall, their functions are to provide information, assistance and advice.

10. With regard to the defence (military) attachés, they have characteristics that are not generally applicable to other attachés. Usually, military attachés from countries which are regarded as regional military powers are highly respected by the host States. But with respect to diplomatic duties, they are not usually accredited as a charge d’affaires ad interim.

11. For some countries, as determined by diplomatic ceremonial protocol, a defence attaché having the rank of brigadier-general is placed after the Head of Mission. If the rank is that of colonel or lieutenant-colonel, the attaché will be placed after the embassy counsellors. In the rank is lower, the attaché will be placed after the embassy secretaries.

12. The military attachés can be selected or recommended by their respective chiefs of staffs, or by relevant ministries. However, when they are posted to an Embassy, they are subject to the authority of the Chief of the Diplomatic Mission to which they are assigned.

13. With regard to the labour attachés, these have been particularly relevant when the two countries (sending and receiving) have historically a significant level of migrants from each other, or from one to the other. Unlike previous times, these officials today are not authorised to recruit migrant workers.

14. At present, due to austerity measures applied by governments, the specialised “boundaries” or “duties” of attachés become blurred and tend to overlap since the Head of Mission may ascribe to them other responsibilities and certain tasks from time to time.

© Odeen Ishmael, 2012

[Diplomatic Practice – Compiled by Odeen Ishmael] 1.The protection of nationals and their interests abroad

19 Oct

 The protection of nationals and their interests abroad

1. The current system of diplomatic relations has managed to adapt traditional core functions to contemporary requirements, supported by the modern international law. One of the most important functions of the diplomatic mission is the protection of state interests that it represents and of its nationals (residents in the receiving State).

2. The protection of nationals of a State, living abroad, was originally a function that corresponded almost exclusively to the consular office. However, according to the precepts of the Vienna Convention on Diplomatic Relations, it is also one of the basic obligations of the diplomatic mission which, in exercising its functions, must to so within the limits permitted by international law.

3. Throughout history, the embassy has dealt more broadly with the protection of state interests it represents. This responsibility is executed in parallel with the duties of monitoring and reporting on bilateral matters and relevant local political, economic and social issues.

4. It is noted that the protection function has traditionally been understood as the set of actions which a state exercises against another State, through its diplomatic or consular representatives, to protect their nationals who reside temporarily or permanently in the foreign territory.

5. Similarly, under international law, receiving States must assure foreigners staying in their territory “treatment no less than a minimum degree.” Such obligations can also be stated in bilateral agreements which stipulate precisely the rights and duties of foreign citizens.

6. It is the responsibility of the Foreign Service to provide adequate protection and assistance to citizens residing temporarily or permanently in other States, though this protection may be influenced by those States’ domestic laws and international regulations

7. On most occasions, such protection may not be desired or possible since tourists and business people rarely come into contact with the diplomatic missions and consular offices of their country abroad.

8. However, these diplomatic missions, as part of the State’s public services, more properly can assist nationals in various fields to assess the legal and political risks and threats of loss of property and to treat severe cases of arbitration that may arise.

9. The conditions that must be considered before the diplomatic or consular officer may validly grant the corresponding protection are:

a) The action that harms the national should be unlawful in relation to international law;

b) The person seeking protection must be a national of the State exercising protection from the moment that the person is affected by the wrongful act and during the period such protection is exercised;

c) A State cannot protect a national if, at the same time, the person has the nationality of the State guilty of wrongdoing; and

d) The request for protection against the unlawful act must be final, meaning that the national must first have exhausted all domestic remedies. In the case of a national arrested or charged for committing crimes, diplomatic agents and consular officers may visit him in prison, ensuring adequate defence, seeking clarification from local authorities, among other actions, within their powers. However, they must be careful not to interfere in internal affairs of the receiving State.

10. The consular offices operate in foreign territory under the authority of the Chief of the Diplomatic Mission. They carry out their duties under a commission of their government, with the approval of the receiving State.

11. From a very practical standpoint, the consular officers have the duty to inform their nationals residing in the host State of the right of protection offered by the diplomatic mission. This responsibility is related to the obligation to keep an updated Register of nationals.

12. The protection function is based on the “international responsibility of States” which allows complaining nationals to seek such protection of their persons or their properties or their interests if they believe they have been wronged.

13. This international responsibility supports a diplomatic claim in cases of denial of justice, when there is undue delay in its administration, or in cases of sentences perceived to be not according to the existing law.

14. International law contains three forms of reparation in these cases. These are (1) restitution, (2) compensation and (3) satisfaction. In this regard, it was the “excesses” in the claims in the area of protection that motivated the Calvo Doctrine. [The Calvo Doctrine is a foreign policy doctrine which holds that jurisdiction in international investment disputes lies with the country in which the investment is located. The Calvo Doctrine thus proposed to prohibit diplomatic protection or (armed) intervention before local resources were exhausted. An investor, under this doctrine, has no recourse but to use the local courts, rather than those of their home country. The principle, named after Carlos Calvo, an Argentine jurist, has been applied throughout Latin America and other areas of the world.]

15. International practice establishes the difference between diplomatic protection and consular action. Diplomatic protection is executed by diplomatic agents at the request of a national of the country they represent, after he has exhausted domestic remedies, especially in cases of a proven miscarriage of justice. Such protection is initiated by sending a diplomatic note to the host State’s Ministry of Foreign Affairs. But even before such action, the Chief of Mission in question must duly inform the Ministry of Foreign Affairs of his own country about the case, and, if deemed necessary, may request the corresponding approval before starting this procedure. This international responsibility supports diplomatic claims in cases of denial of justice, even when there is undue delay in its administration, or in cases of sentences perceived to be not according to the existing law.

16. In contrast, consular action corresponds to matters brought before local authorities in the area where the consular office is located. The matters relate to representation of defenceless nationals against faults or violations relating to the application of domestic law and also in instances where there is failure to exhaust domestic legal remedies.

17. Consular action coexists with the so-called consular assistance, which the head of the consular office performs for nationals of its State, without involving the foreign authority. This assistance is based on:

a) The recognition by the receiving State, according to treaty law, of the consular officer’s authority to perform such actions.
b) The proper responsibility of the sending State to address the welfare of its citizens, even outside the territorial limits.

18. Consular assistance does not imply a claim arising from a breach of the rights of national or a deficiency in the judicial process. Protection is not meant to support a national’s claim for preferential treatment in comparison with nationals of the receiving State, except in the case of fundamental rights stipulated by international law, including those related to slavery and prostitution.

19. A State cannot claim to protect its nationals against the application of the law of another, if this application is made under equal conditions for all inhabitants of that country. The “excesses” in the claims in the area of protection motivated the Calvo Doctrine, which expresses “that an alien who resides in another country benefits from migration, and should not pretend, therefore, to be entitled to a different regime and more favourable than for nationals.”

20. With regard to diplomatic protection, the Inter-American system set its position in the Pact of Bogota of 1948 (Article VII), which states: “The High Contracting Parties bind themselves not to make diplomatic representations in order to protect their nationals, or to refer a controversy to a court of international jurisdiction for that purpose, when the said nationals have had available the means to place their case before competent domestic courts of the respective State.”

21. The following factors are essential if it is necessary for a State to provide protection:

a) The national concerned is seeking State protection.
b) The issue of protection is raised in a timely manner.

22. The protection or defence, both diplomatic and consular, is presented from the legal perspective as a claim to “international responsibility of States”, through which the complaining country’s citizens in their persons, their property or their interests have been wronged. The international responsibility arises from the realisation of an international illegal act resulting in the breach of these rights by a State against another State’s nationals or their property or their interests.

23. There are two types of international violations – those involving the commission of a crime, and others designated as crimes. These crimes, such as the practice of slavery, genocide, or egregious harm to the environment, constitute a serious violation to the maintenance of international peace and security.

24. Importantly, the behaviour of any of the branches of government (executive, legislative, judicial or other body within the framework of governmental organisation) is considered as attributable to the State. The law empowers the State to exercise sovereign authority over conduct arising from an entity that is not part of the structure of the State or of a territorial governmental entity.

25. International practice has established conclusively the international responsibility of the unauthorised acts of State organs even if they are performed outside the limits of its jurisdiction and are contrary to law.

26. On the other hand, the State is not liable for the acts or omissions incurred by staff of the branches of government when acting in a private capacity. Similarly, the State assumes no responsibility for the conduct of members of an insurrectionary movement, unless they become members of the new government.

27. The conduct of an organ or multiple organs placed at the State’s disposal by another State or an international organisation, provided that such bodies act on the basis of governmental authority of the host State, is the responsibility of the said host State.

28. Circumstances that are considered exclusive to the international responsibility of the State include consent, force majeure, distress, necessity, countermeasures and self-defence:

a) Consent is understood as an agreement between States to waive certain specific requirements. This agreement must be reached prior to the commission or omission of a fact.

b) Force majeure refers to an irresistible force of nature or unforeseen event that makes it impossible for action in accordance with the State’s international obligations, and that it has not wilfully or negligently contributed to the emergence of such an event.

c) Distress applies when the life of the individual or of a group of persons in the care of the receiving State is in danger, providing that the action of said State has not led to the situation.

d) The state of necessity may be invoked when the execution of an act is the only means of safeguarding an essential interest of the State against an imminent danger. No one can argue a case of imminent danger when the obligation arises under a rule of jus cogens [compelling law].

e) Regarding counter-measures such as sanctions, international law can be exercised by a State affected by the breach of an international obligation which is the exclusive responsibility of the State if these measures are proportionate to the violation.

f) Self-defence constitutes a lawful measure implemented within the principles of the Charter of the United Nations [Article 51].

29. There are certain acts not sanctioned by international law and, despite their lawful nature, may be highly dangerous. It may be argued that these acts should be regulated in order to sustain the international responsibility of their perpetrators. These acts include the “peaceful uses” of nuclear energy and damage by caused by satellites on Earth’s surface, among others. In this sense, various concepts like “dangerous activities”, “exceptional risk” and “harm” are now defining the responsibility of entities with international legal responsibility.

30. International law recognises three forms of reparation in these cases, which are: restitution, compensation and satisfaction. Restitution seeks to restore the situation to the previous state of affairs that existed before the damage was caused. Awarding compensation money to victims of the offence and is the most common form of reparation. And finally, it seeks satisfaction, mainly an apology from the responsible officials or the imposition of a penalty or rigorous application of domestic legislation to punish the perpetrator.

31. Protection is also applied to multiple and varied aspects, such as the protection by the consul of his State’s marine and aviation services, and also the protection of the historical and cultural heritage of the nation, national institutions, the image and prestige of his country and any other areas which do not receive the objection of the receiving State.

32. At present the importance accorded to the functions of protection is not limited to Foreign Service responsibilities. To give proper “support” to the work of protection, certain foreign ministries now have special departments with full responsibility for this function and they work in coordination with the State’s consular offices.

33. It must be emphasised that the complexity and importance of this diplomatic and consular exercise, particularly for the protection function, requires a foreign service with the ability, experience and dedication to serve the needs and aspirations of the country.

© Odeen Ishmael, 2012

Hello world!

19 Oct

Welcome to WordPress.com! This is your very first post. Click the Edit link to modify or delete it, or start a new post. If you like, use this post to tell readers why you started this blog and what you plan to do with it.

Happy blogging!