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End of Diplomatic Functions

From: Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations (4th Edition)

Eileen Denza

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved. Subscriber: null; date: 09 December 2022

Subject(s):
Diplomatic immunity — Diplomatic missions — Diplomatic relations

(p. 389) End of Diplomatic Functions

Article 43

The function of a diplomatic agent comes to an end, inter alia:

  1. (a)  on notification by the sending State to the receiving State that the function of the diplomatic agent has come to an end;

  2. (b)  on notification by the receiving State to the sending State that, in accordance with paragraph 2 of Article 9, it refuses to recognize the diplomatic agent as a member of the mission.

Article 43 shows the effects of the pressure under which the Vienna Conference was working in its concluding stages—its scope and purpose are unclear and the rules which it sets out are incomplete. The Conference was aware of this, but lacked the time to clarify the text. The Article ought to prescribe not simply the various methods by which the functions of a diplomatic agent may be brought to an end, but the time at which this occurs. Article 13 lays down how it is determined when the head of mission is considered as having taken up his functions, and Article 43 ought to be its counterpart, prescribing when a diplomatic agent is regarded as having concluded his functions in the receiving State. This question may be of importance when it is necessary to know whether a particular act of the departing diplomat should be regarded as an official act, so that he would be immune in respect of it by virtue of Article 39.2, or whether a departing head of mission remains in charge of the mission for the purpose of receiving communications from the receiving State and acting in that capacity under the law of the receiving State—for example, in regard to a trust or a disposition of property of the sending State. The International Law Commission seem, however, to have regarded the provision as purely descriptive and of doubtful use in a codification of diplomatic law. While the Vienna Conference accepted that it ought properly to contain an exhaustive list of circumstances which would bring the functions of a diplomatic agent to an end, they failed to formulate such a list.1

Article 43 does lay down a clear rule for the time of termination in the most common case where the sending State notifies the termination of functions with the mission (as it is bound to do under Article 10.1(a)) and also for the case of a declaration of persona non grata, where in the absence of recall or termination of functions by the sending State, the receiving State exercises its power under Article 9.2 to refuse to recognize the diplomatic agent as a member of the mission. What is referred to in older textbooks on diplomatic law and in the Havana Convention regarding Diplomatic Officers2 as ‘the delivery of passports to the officer by the Government to which he is accredited’ should now be assimilated in substance to Article 9 of the Vienna Convention. It was formerly the practice for diplomatic agents to deposit their passports on arrival with the Ministry of (p. 390) Foreign Affairs and to collect them—whether voluntarily or on demand—on departure, but the practice is now obsolete.3

A fuller account of the ways in which the function of a diplomatic agent may be terminated is contained in Satow’s Diplomatic Practice.4 One may leave aside the case of mission dispatched for a fixed period or for a specific task—which the Vienna Conference quite properly decided were special missions and therefore not within the scope of the Vienna Convention. The remaining cases fall into three categories:

  1. 1.  Death of the diplomatic agent. Mention of this case was omitted by the International Law Commission on the ground that it was self-evident that death terminated the functions of a diplomatic agent.5 There is no difficulty in determining the exact time of termination in this case.

  2. 2.  Breach of diplomatic relations, which may or may not occur on the outbreak of armed conflict. It is increasingly common for diplomatic missions to remain in position even during violent conflict so long as sending States believe that the physical safety of the members of the mission can be reasonably assured. Where safety becomes a serious concern, the practice is often for the sending State to withdraw mission staff or even to withdraw the entire mission, while the two States remain in diplomatic relations. The sending State may notify under Article 10 the termination of the functions of those staff who are withdrawn on a permanent basis, but others may not be so notified in the hope that they may return when conditions are better, and in those circumstances they may be regarded as continuing to exercise their functions. Where a breach of diplomatic relations does take place, given that the maintenance of diplomatic relations like their establishment under Article 2 is dependent on mutual consent, termination of diplomatic functions takes place on the notification by the State initiating the break in diplomatic relations.6

  3. 3.  Disappearance of the sending or the receiving sovereign. This may occur because the Head of State of either State dies, abdicates or is deposed, or because either State disappears totally as a result of annexation or merger with another State. In these circumstances fresh credentials are normally required by heads of mission who continue in their posts. Where this is a mere formality, heads of mission and other diplomats may carry on business in the expectation that their position will duly be regularized with retroactive effect. They are, however, properly to be regarded as having terminated their functions and then resumed them under a fresh appointment which may be express or implied. This happened after the fall of the Shah of Iran—the United States in particular continued diplomatic dealings through a chargé d’affaires with the Government of Ayatollah Khomeini until the seizure of the US Embassy, and it was never argued by Iran that the hostages did not have normal diplomatic status.7 Heads of mission may also remain at their post if the disappearance of the receiving (p. 391) State is not recognized by their sending State. Thus in 1990 the annexation of Kuwait by the Government of Iraq was never recognized by the overwhelming majority of other States, and their position was endorsed by Security Council Resolution. Diplomatic missions remained in Kuwait for as long as it was physically safe to do so, and continued to regard themselves as being in diplomatic relations with Kuwait and their diplomatic staff as exercising functions there until Iraq broke relations with coalition members in 1991.8

By contrast, after the deposition of Saddam Hussein as Head of State of Iraq, the United States made clear that ambassadors and other diplomats accredited to him were not regarded as continuing in post even if they remained in their missions.9 A State Department spokesman said that this resulted from the absence of an Iraqi Government with which they could interact and which could grant privileges and immunities. ‘They are accredited to a regime that is no longer existent and, therefore, their accreditation would have lapsed…They and their premises don’t have diplomatic status anymore.’ This argument was categorically rejected in a statement by the Russian Foreign Ministry shortly afterwards, and was clearly inconsistent with the position taken by the US and by other States in the earlier contexts of Iran and Kuwait as described above.10

While the Coalition Provisional Authority acted as the Government of Iraq, the United Kingdom sent a Special Representative, Mr David Richmond. In Iraqi Embassies abroad, diplomats burnt or shredded documents and in most capitals quietly melted away.11 A year later an Interim Iraq Government assumed sovereign powers and a new UK Ambassador, Mr Edward Chaplin, was appointed. Somewhat improperly, his appointment was formally announced several weeks before there was an Interim Iraq Government in existence to grant him agrément, to approve the exceptionally large numbers of mission staff to be appointed, or the projected opening of a Representative Office in northern Iraq.12

A change of government on either side not involving the Head of State, or the constitutional replacement of an elected Head of State following his death, resignation, or the end of his term of office does not on the other hand automatically end the function of the diplomatic agent.13 A receiving State will normally continue to regard diplomats appointed by a government which has been overthrown as continuing to exercise their functions until they recognize (whether formally or by beginning to do business) the new regime in the sending State. In 1973, for example, the UK Government following the overthrow of President Allende continued to regard his representative as Ambassador of Chile until it recognized the government which had replaced his. The question was material because the representative of the new Government, following a split in loyalties among members of the mission, sought the assistance of the UK Government for the purpose of gaining immediate control of the ambassador’s residence—assistance which (p. 392) was not given. (On formal recognition by the United Kingdom of the government which had taken control of Chile, led by General Pinochet who later became Head of State, the former ambassador and those remaining loyal to him left the residence voluntarily.) On recognition of a new regime in a sending State the status of members of its diplomatic mission will normally become apparent quickly. Sometimes they may already have resigned. After the fall of the Government of the Republic of Vietnam (South Vietnam) in 1975 the ambassador notified the UK Government of his own resignation and that of his entire staff some nine days before the UK Government recognized the Provisional Revolutionary Government as the Government of South Vietnam. The UK Government accepted that this resignation terminated their functions with immediate effect.

In exceptional cases a change of government in the sending State may divide the loyalties of the mission staff to such an extent that some may resign or be dismissed while others willingly serve the new regime. Even more exceptional were the circumstances following the replacement in 1975 of the Royal Government of National Union of Cambodia by the Communist Government of the Khmer Republic. The ambassador and most of the staff of the mission made clear to the new Government in Phnom Penh that they were willing to serve them, but no response was ever made by the new Government either to the Cambodian Ambassador’s expressions of readiness to serve, or to the UK Government’s indication of willingness to maintain diplomatic relations.14

Where a change of government takes place by unconstitutional means in the receiving State, it is for the new Government to determine whether it wishes to remain in diplomatic relations with all those States which formerly sent embassies to that capital. The new Government may send heads of mission who have continued in residence a Circular Note informing them of the Government’s wish to continue diplomatic relations. Heads of mission respond only if they have been authorized by their sending government to recognize or to do business with the new regime.15

If clarification of status is necessary under any of the circumstances described above it is for the Ministry of Foreign Affairs to seek it from the representative of the government which it recognizes or with which it has dealings, and the courts of the receiving State will in turn usually seek clarification from their own Ministry of Foreign Affairs.

Footnotes:

1  UN Doc A/Conf. 20/14 pp 213–14.

2  Art 25: UN Legislative Series vol VIII, Laws and Regulations regarding Diplomatic and Consular Privileges and Immunities (‘UN Laws and Regulations’) p 422; Cahier (1962) p 128.

3  For the instructions to the French Ambassador in Berlin on 3 September 1939 to ask for his passports if the German response to the French ultimatum was negative, see Salmon (1994) para 647.

4  (4th edn 1957) pp 274–5; (5th edn 1979) paras 21.1–15; (6th edn 2009) ch 15. See also Salmon (1994) paras 646–8.

5  ILC Yearbook 1958 vol I p 181.

6  Sfez (1966) at p 400.

7  See Hostages Case 1980 ICJ Reports 3 at para 14. Apologies were made by the Prime Minister of Iran for an earlier attack on the US Embassy, together with an indication of readiness to make reparations.

8  See Commentary on Art 2 and Security Council Resolution 667 (1990); James (1991) at pp 373–4.

9  Press Briefing by State Department spokesman on 29 May 2003, quoted in Kirgis, ‘Diplomatic Immunities in Iraq’, ASIL Insights June 2003, at www.asil.org/insights/insigh109.htm.

10  Russian Foreign Ministry statement, 12 July 2003; RIA Novosti, 29 July 2003; Talmon (2006).

11  The Times, 11 April 2003; 24 July 2003 (the Ambassador to Beijing resisted by force of arms orders to return to Baghdad).

12  The Times, 27 April, 3 May (Court Circular: Diplomatic Appointments), 10 July 2004.

13  Satow (5th edn 1979) para 21.11; (6th edn 2009) para 15.23.

14  Satow (5th edn 1979) paras 9.23 and 21.10; (6th edn 2009) para 15.25.

15  On the termination of consular functions, which differs for legal and practical reasons in a number of respects, see Lee and Quigley (2009) ch 6.