- Diplomatic missions — Diplomatic relations — Sovereignty — Statehood, legitimacy — Vienna Convention on the Law of Treaties — Rule of law — Territoriality — Governments
5.1 Under long-established principles of international law now codified in Article 2 of the Vienna Convention on Diplomatic Relations, the establishment of diplomatic relations between States and the establishment of permanent diplomatic missions take place by mutual consent. The right to send and receive diplomatic agents flows from recognition as a sovereign State and was formerly known as the right of legation (ius legationis). The recognition of a new State, the establishment of diplomatic relations with that State, and the establishment of a permanent diplomatic mission in that State are three distinct steps. It may however sometimes happen that two of the three steps occur simultaneously or in immediate sequence, which can give rise to confusion between them.
5.2 It is in modern practice highly exceptional for two States to recognize each other without formally establishing diplomatic relations—and such a situation usually indicates extreme tension or coolness between them. The United Kingdom for example recognized North Korea as a State some years before the establishment of diplomatic relations between the two in December 2000. The United States also recognized North Korea without establishing diplomatic (p. 72) relations with it.1 In 1980 the United Kingdom offered to establish relations with Albania, but the offer was accepted only in 1991, while the United States made a similar offer in 1973 which was also rejected by Albania. By contrast, it is now common for two States to establish or to maintain diplomatic relations without having permanent missions in each other’s territory.
Recognition of States and Establishment of Diplomatic Relations
5.3 It is common, though not universal practice, for the government of a State to issue a formal statement on recognizing another—usually newly established—State and such a statement may offer to establish diplomatic relations with the new State, or be followed very shortly by such an offer. Sometimes however the stages are merged so that the offer to establish relations, or a jointly released statement by both States of their intention to establish relations, in effect constitutes implied recognition by the old State of the new one. In earlier centuries it was common for States to conclude a treaty formally setting out the right to send and receive diplomatic missions, but this practice is now obsolete.
5.4 Where the birth of the new State takes place without the consent of the State from whose territory it is being formed, premature recognition and establishment of diplomatic relations by other States will be regarded by the parent State as unlawful and in some circumstances as an intervention in its own internal affairs. Thus in February 1991 the Soviet Union protested at a decision by Iceland to recognize Lithuania—then still regarded by Moscow as a constituent Republic of the USSR—and to establish diplomatic relations with it. By September 1991 however constitutional processes had been completed by the USSR State Council recognizing the independence of the former Soviet Republics, and ministers of foreign affairs of the Member States of the European Community met the ministers of foreign affairs of the three Baltic States to mark the restored sovereignty and independence of the Baltic States and to seal the establishment of diplomatic relations with all of them. In 1998, by contrast, Chechnya attempted to assert a claim to independence from Russia by appointing ambassadors, but these were not accepted by other States and were declared by Russia to be illegal.
5.5 Following the secession of Bangladesh from Pakistan in 1971, the new State of Bangladesh was recognized by the United Kingdom, by India, by the Soviet (p. 73) Union, and within a few weeks by numerous other States. In protest at the recognition by Commonwealth governments of Bangladesh, Pakistan on 30 January 1972 withdrew from the Commonwealth. Pakistan did not recognize Bangladesh as a sovereign State until 1974.
5.6 Following the unilateral declaration of independence from Serbia by Kosovo on 17 February 2008, the United States on the following day recognized it as a ‘sovereign and independent State’. The prime minister of Serbia immediately recalled the Serbian ambassador to Washington, claiming that the US action ‘violated international law’, and the position of Serbia was supported by other States including Russia, China, India, and Spain.2 In the absence of a common position among European Union Foreign Ministers on the recognition of Kosovo, a number of Member States including Germany, Italy, France, and the United Kingdom made formal statements of recognition. The UK Foreign Secretary David Miliband said:
The plan is to do it this evening and diplomatic relations will then be established … and in the course of the next days and weeks all the terms of full diplomatic representation will be put into place.3
5.7 In a different category are Montenegro (2006) and South Sudan (2011) as recent examples of States which emerged with the (albeit grudging) consent of the parent State (in the case of the former, the parent was Serbia and Montenegro, the latter Sudan); the emergence of the new States was followed by speedy recognition by other States and entry into diplomatic relations. This is to be contrasted with the position of entities which declare themselves as states but are recognized by few if any others (e.g. Northern Cyprus, Somaliland, South Ossetia, and Abkhazia).
5.8 The disappearance of a sovereign State—usually on fusion with another State—is on the same principles followed by the ending of its separate diplomatic relations with other States as they recognize the new situation. On the reunification of Germany in 1989, the separate East German embassies were taken over by the newly reunited Germany. Other States, if they retain former embassy premises in a city which is no longer the seat of government, may transform them into consulates—or perhaps seek the permission of the government of the newly unified State for their transformation into offices forming part of the mission to that State. Once again it is recognition which forms the key to any change in diplomatic relations. When Iraq purported to annex Kuwait in 1990, (p. 74) President Saddam Hussein ordered the closure of embassies of other States in Kuwait. Other States however, fortified by a Security Council resolution,4 refused to comply on the basis that closure would have implied acquiescence in the disappearance of Kuwait as a separate sovereign State. Even where diplomats were withdrawn during the subsequent conflict for reasons of security, other States continued to regard themselves as maintaining diplomatic relations with Kuwait.
5.9 In September 1973, following the recognition by the United Kingdom of North Vietnam as a State, the two governments agreed to enter into diplomatic relations at the level of ambassadors and the former UK consulate-general in Hanoi became an embassy. The government of North Vietnam however refused to accept the credentials of the officer accredited a few months later as ambassador and after a year he was withdrawn. In July 1976 the UK, following the Communist victory in the South, recognized the Provisional Revolutionary Government as the government of South Vietnam and two months later the government of North Vietnam accepted the appointment as ambassador to North Vietnam of the officer who had been acting as British chargé d’affaires in Hanoi. In July 1975 the UK recognized Vietnam following the reunification of North and South Vietnam into a single State having its capital in Hanoi, and the former British embassy in Saigon became a British consulate in what in 1976 was renamed Ho Chi Minh City.
Recognition of New Governments and Diplomatic Relations
5.10 Where a change of government within a State takes place, continuance or otherwise of diplomatic relations between that State and others also depends on whether the new government has been recognized. When the change of government is constitutional, for example as a result of free elections, diplomatic relations with other States will continue as a matter of course. Fresh credentials may be required by ambassadors from other States where the new government results from or entails a different Head of State. Where a change of government results from conflict or revolution, diplomatic relations may continue or there may be a hiatus, and the appointment of new ambassadors is likely. If ambassadors and diplomats from other States remain at their posts pending clarification of the position they are not permitted to have official dealings with the new government since such contacts in the absence of a disclaimer (p. 75) would imply recognition. Diplomats may however if so authorized have informal dealings with one or other party to a civil conflict particularly on such matters as the safety and the protection of the property of their own nationals.5
5.11 Under older practice States might expressly recognize a fundamental change in the government of another State. On the death of General Franco in November 1975, for example, the British government immediately and formally recognized the change resulting from the constitutional arrangements in Spain for restoring the monarchy. The Duke of Edinburgh represented the Queen at the service in Madrid seven days later to celebrate the accession of King Juan Carlos to the throne of Spain.
5.12 In Cambodia, by contrast, the victory in 1975 of the Khmer Rouge resulted in a much more confused situation. Having taken over control of Phnom Penh, the Khmer Rouge warned all foreign diplomatic missions to cease functioning. France closed its diplomatic mission, leaving a consul in charge of French interests although for some weeks the building continued to provide refuge for diplomats and other foreign nationals. Other States also closed their diplomatic missions. Soon afterwards it became clear that the Khmer Rouge were in control of the greater part of the territory of Cambodia, and France, the United Kingdom, and other States formally accorded them recognition as the government of Cambodia and offered to resume diplomatic relations. The new government however ignored these overtures, ignored offers by former Cambodian diplomats to serve the new regime, and ignored offers in foreign capitals to arrange for the protection or the disposal of Cambodian former embassy premises in these capitals. For many years the Khmer Rouge government had no diplomatic relations with Western States.
5.13 Modern practice is for other States to make no express statement recognizing a new government and for the continuation or resumption of relations—whether through the same ambassador or through a replacement appointment—to take place as inconspicuously as possible. The United Kingdom fell into line with this practice in 1980 following a review of practice in other European States and more generally.6 A number of States have, however, shown a willingness, in certain insurgency situations, to signal their political approval of particular factions by recognizing them as ‘legitimate representatives of the people’. Such ‘recognition’, while usually falling short of formal recognition as a government, may pave the way for an informal exchange of envoys. The French government (p. 76) for instance declared in 2011 that the Libyan National Transitional Council (NTC) was ‘the legitimate representative of the Libyan people’.
5.14 Similar declarations were later made by a number of other States although the UK statement went further. ‘We recognise the National Transitional Council as the legitimate representative of the Libyan people.’7 As Warbrick has argued,
[t]hese words constitute the revival of the pre-1980 [UK] policy of making decisions on the recognition of governments, although the circumstances which would prompt such a decision in this case appear to have been quite out of line with those which would have had to have prevailed before 1980. … We must wait to see whether the incident of Libya and NTC turns out to be an anomalous revival of an abandoned option or whether the attractiveness of the peremptory character of the recognition decision will appeal to future British Governments with the precise object of influencing events in other States.8
5.15 With regard to the civil war in Syria, the US took a similar position when, in December 2012, President Barack Obama stated: ‘[w]e’ve made a decision that the Syrian Opposition Coalition is now inclusive enough, is reflective and representative enough of the Syrian population that we consider them the legitimate representative of the Syrian people in opposition to the Assad regime.’9 In the UK, such examples of recognition would not entitle a ‘representative of the people’ to usual diplomatic immunities and privileges.
5.16 Where a government—even one apparently in control of a State—has not received recognition from other States, it will be unable to establish or to continue diplomatic relations with these other States and its envoys—like those from Chechnya mentioned earlier—will not be received abroad, accorded any diplomatic status, or given control of the financial assets or property such as embassy premises belonging to the State. The Taleban regime, even while in apparent control of Afghanistan, was recognized as a government only by Pakistan, Saudi Arabia, and the United Arab Emirates. Representatives purporting to act as diplomats in European capitals were simply disregarded by the governments of the relevant States, and in October 2001 a Taleban ‘embassy’ in Frankfurt was closed down by German police who found a list of enemies of the Taleban targeted for killing.10
5.17 A State establishes a permanent diplomatic mission in another State with which it is in diplomatic relations only where it decides, first, that a permanent mission is necessary for the conduct on its behalf of some or all of the diplomatic functions described at paragraph 5.19, and secondly, that conditions in the receiving State would permit its representatives to exercise such functions safely and effectively. Embassies are financed from the resources of the sending State which are in most cases subject to stringent controls and in some cases to public and parliamentary scrutiny of expenditure. So a sending State which has limited political or commercial interests in another State, and few of its own nationals resident in or visiting that State, may well decide that it does not require a permanent embassy there. Where the receiving State is in the midst of armed conflict, civil disorder, or a high level of terrorist threat, other States will in general not set up permanent missions and may withdraw missions already in existence.
(2) occasional special missions sent to discuss specific issues of mutual interest (see Chapter 15);
(3) multiple accreditation—more usually the sending of a single ambassador to two or more receiving States but less frequently the sending by two or more States of a single ambassador to one receiving State. The rules for multiple accreditation are set out in Articles 5 and 6 of the Vienna Convention on Diplomatic Relations. A receiving State may object to receiving an ambassador who is also accredited to another State or who is sent by more than one State;11
(4) protection of the interests of the sending State by a third State which is represented in the receiving State. Where a mission has been recalled (perhaps for reasons of economy or security) or diplomatic relations have been broken, the rules are set out in Article 45 of the Vienna Convention and are described in detail in Chapter 10, paragraphs 10.42–10.47. Where the sending State has not previously sent a permanent mission, the arrangement is normally regarded as temporary and the rules are contained (p. 78) in Article 46 of the Convention. The consent of the receiving State is required for this arrangement;
(5) consular relations may be continued or established between the two States in the absence of a permanent diplomatic mission and even in the absence of recognition of the receiving government or of diplomatic relations. For many years before 1973 the United Kingdom maintained a consulate in Hanoi without recognizing North Vietnam as a State. This is explained more fully in Chapter 8, paragraphs 8.7 and 8.28. Between 1992 and 1995, the UK mission in Belgrade was headed by a chargé d’affaires and consul-general in the absence of formal recognition of the rump Federal Republic of Yugoslavia.
Functions of a Diplomatic Mission
5.19 The functions of a diplomatic mission, which are set out in Article 3 of the Vienna Convention on Diplomatic Relations, are to represent the sending State, to protect its interests and those of its nationals, to negotiate with the government of the receiving State, to report to the government of the sending State on all matters of importance to it, and to promote friendly relations in general between the two States. The mission should seek to develop relations between the two countries in economic, financial, labour, cultural, scientific, and defence matters. Although there have been important changes in the ways in which diplomatic relations are conducted—many due to developments in communications and travel—the basic functions themselves have hardly altered over the past 300 years. The list in Article 3 is however not exclusive, so that novel forms of cooperation, such as police or judicial liaison over extradition, people and drug trafficking, or child abduction, may be accepted as properly diplomatic in character. The functions of diplomatic missions must be distinguished from ‘diplomacy’—a broader term discussed in Chapter 1. In carrying out all of its functions the mission acts on the instructions received from the government of the sending State and on its behalf. The function of ‘representing the sending State’ is listed first because it describes not merely ceremonial appearances and acts by an ambassador but embraces all of the subsequently named functions. The more specialized functions such as those relating to scientific research or defence cooperation may be carried out by or with the assistance of specially trained members of the diplomatic service or by officers belonging to the armed services of the sending State or to other ministries. The latter are often seconded to the diplomatic service of the sending State and are in any event given diplomatic appointments (such as defence attaché) where they are serving on a long-term basis.
(p. 79) 5.20 The development of economic and financial relations by a mission is in larger posts carried out by a commercial section of the embassy. This work is concerned with the promotion of trade between the two States and with the promotion and protection of direct investment between them. It may not be carried out with the purpose of generating profit, because of the legal prohibition, now reflected in Article 42 of the Vienna Convention on Diplomatic Relations, on the carrying out by diplomatic agents of professional or commercial activity for personal profit. The distinction between promotional and profit-making activity often gives rise to difficulties with the host State authorities in regard to such questions as tourist offices, or the selling of tickets for holidays or for cultural or social events on embassy premises. In addition to the questions of whether such activities are proper functions of the embassy and proper uses of mission premises there is the further question as to whether they are covered by the immunity of the sending State which under modern international law does not cover commercial activities. Of course the fact that a particular enterprise—such as an investment agency or a tourist or medical office—is not accepted by the host State as carrying out a diplomatic function does not imply that it is not legitimate or governmental in character.
5.21 A diplomatic mission is required to carry out all of its functions in accordance with international law and also (except where it benefits from a specific exemption) in accordance with the laws and regulations of the receiving State. Article 3 of the Vienna Convention expressly states that, in protecting the interests of the sending State and of its nationals, the mission acts within the limits permitted by international law because of the particular sensitivity of the mission’s acts intended to protect its national interests and the need in this context for its conduct to take account of the duty of diplomats under Article 41 of the Convention not to interfere in the internal affairs of the receiving State. The balancing of the right of an embassy to protect the interests of its own nationals and, more generally, human rights, and its duty not to interfere in the internal affairs of the host State has in recent years given rise to numerous diplomatic disputes, particularly, though not exclusively, in countries which strictly limit freedom of speech and assembly (see also Chapter 17, paragraphs 17.95–17.100 and Chapter 36, paragraph 36.17). An ambassador who offers refuge within his embassy premises to fugitives from local law enforcement officers may for example argue that he is justified in giving humanitarian protection, but the receiving State may take the position that such action amounts to intervention in its own internal affairs and is not permitted under general international law. These problems are considered more fully in Chapter 13, paragraphs 13.21–13.26 and Chapter 17, paragraphs 17.103–17.105.
5.22 Article 3 of the Vienna Convention on Diplomatic Relations makes clear that the Convention does not prevent the performance of consular functions by diplomatic missions. In modern practice it is very common for embassies to have a consular section performing consular functions and for some of the diplomats and junior staff of the mission also to be given a consular appointment. The existence of diplomatic relations normally implies the existence of consular relations, although, as stated earlier, consular relations do sometimes exist in the absence of diplomatic relations. Some States however do not organize their external services so as to permit their own diplomatic agents to carry out consular functions or do not accept that embassies of other States may perform consular functions in their territory. The position is therefore complex, though it has been clarified to some extent by the 1963 Vienna Convention on Consular Relations.
5.23 There is no clear dividing line between diplomatic and consular functions. Most of the functions of diplomatic missions set out may also be exercised by consular posts. Consular posts also exercise a number of mainly administrative or legal functions (such as registration of births, deaths, and marriages, issuing passports and visas, or assistance to ships and aircraft in transit) which could broadly be regarded as protection of the interests of nationals of the sending State but are not normally carried out by embassies. The key distinction lies in whether the function is carried out through contacts with the central government, the ministry of foreign affairs of the receiving State or other central government ministries (diplomatic functions) or through contacts with local authorities such as regional governments, police, prison, or commercial officials (consular functions).
5.24 In the absence of a specific local bar, diplomatic agents may exercise consular functions on an occasional basis without the specific authority known as an exequatur. But a diplomatic agent doing this on a regular basis must be notified to the government of the receiving State and should preferably also be given a consular appointment. Those with a dual appointment will address the appropriate authorities depending on the capacity in which they are acting. Regardless of the capacity in which they are acting they will remain entitled to the diplomatic immunities consequent on their diplomatic status.
9 2013 AJIL 655 and quoted in Sovereignty and Legitimacy in the Rule of Law Equation by David K Linnan, ‘Sovereignty and the New Executive Authority Conference’, CERL U Penn Law School, 19–20 April 2013, p. 15.
11 In 1825, for example, Canning as British Foreign Secretary rejected a proposal by Argentina to send a minister who was also accredited to France, saying ‘Je crois … que ce n’est pas trop pour le cérémonial, d’exiger un ministre pour l’Angleterre seule’ and the Holy See will not receive any ambassador also accredited to the Italian Republic.