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Home , Diplomat

Blind Alley of : The Legal Status of Ministers Abroad and Foreign Agencies

Writer: Ataberk Ozcan

Jus Gentium International May 2017

Introduction 2

1. and its legal basis 2

2. 3

3. Are Embassies Considered as Foreign Soil? 4

4. and Their Acceptance by Receiving State 6

1 Introduction

Amid a migrant crisis, sluggish economic growth and growing disillusionment with the European Union, far-right parties — some longstanding, others newly formed — have been achieving electoral success in a number of European nations.

Nowadays, the world is heading to times of more conflicts, when it is firmly easy to be informed on current affairs at the other side of the world. This lets people of certain countries feel to take a quick action in order to prevent the great conflictions and even wars within their soils. Thus the far right parties are on rise. Strongest candidates of developed countries are from far right parties and they do not lean towards immigration or extremism of any kind. They seem to be the head of their states for many more years.

While the tension in world is rising, it has been just few days that the conflict between Turkey and The Netherlands appeared. Protests broke out in Rotterdam and in front of Dutch diplomatic missions in Turkey, after The Netherlands barred a plane carrying Turkey's from landing to stop him from addressing a political rally in the port city. The Dutch government announced that Foreign Minister’s flight permit was revoked amid concerns over public order at the expected large gathering of Turkish expatriates.

At this point certain news gave place to legal terms and international precedents. However the need for expounding has arised due to our times in which misinformation takes place on many platforms.

Following questions are formed in order to explain these legal basis of this current affair.

1. Persona Non Grata and its legal basis

In diplomacy, “persona non grata” is an expression in reference to a diplomat who is no longer welcome to the government to which he is accredited after he has already been received and has entered upon his duties, or before arriving in the territory of the receiving State. Diplomats have been declared persona non grata for making disparaging remarks against the host ​ ​ government; violating its ; interfering with its politics; meddling with its domestic affairs; using offensive language against it; criticizing its head of state ... and a similar grounds. Usually ​ the appended host government requests for sending diplomats to recall the offending diplomat. This request is normally complied with.

Proclaiming a diplomat persona non grata usually results from an unfriendly attitude toward the ​ ​ (prospective) receiving state, violation of its laws or of international , or improper diplomatic behavior or indiscretions, although the host state may proclaim a diplomat persona non ​

2 grata for any or no reason. The sending state must then recall its agent or, should not recall ​ occur, the host state may ignore the presence of the diplomatic agent or expel the diplomat from its territory.

The process of dealing with diplomats who are no longer welcome has now been fully recognized by the Vienna Convention on Diplomatic Relations (which Turkish Republic is not a ​ ​ part of), at Article 9:

The receiving State may at any time and 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 persona non grata or that any other member of the staff of the mission is not acceptable. In any such case, the sending State shall, as appropriate, either recall the person concerned or terminate his functions with the mission. A person may be declared non grata or not acceptable before arriving in the territory of the receiving State.

2. Diplomatic Immunity

In order to establish the existence of diplomatic immunity, it has to be ensured that the all legal provisions are respected and rules are followed in the process of sending the agent(s) of the state. When it is finally ensured, agents can enjoy the diplomatic immunity which is secured by international agreements and precedents.

Additionally, the Convention states in Article 31:

A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:

(a) A real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;

(b) An action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State;

(c) An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.

Extracts from the Vienna Convention on Consular Relations: ​ ​

41(1). Consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority.

3 43. Consular officers and consular employees shall not be amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions (except), in respect of a civil action either arising out of a contract concluded by a consular officer or a consular employee in which he did not contract expressly or impliedly as an agent of the sending State; or by a third party for damage arising from an accident in the receiving State caused by a vehicle, vessel or aircraft.

Diplomatic immunity in its contemporary aspect may be broadly defined as the freedom from local jurisdiction accorded under principles of by the receiving state to the duly accredited diplomatic representatives of other states.

Diplomatic immunities are required on the ground of practical necessity. It is in the interest of ​ the State accrediting a diplomatic agent, and in the long run in the interest also of the State ​ to which he is accredited, that he should have such liberty as will enable him, at all times and in all circumstances, to conduct the business with which he is charged; and liberty to this extent is incompatible with full subjection to the jurisdiction of the country with the government of which he negotiates.

"The full privileges and immunities of diplomatic status have traditionally been reserved to those of acknowledged , performing diplomatic functions.

Occasionally it has been suggested that diplomatic agents should enjoy their diplomatic immunity only in connection with actions forming part of their official functions. Therefore, any illegal acts, which are private acts in character or committed in connection with private activities, are under the jurisdiction of the receiving state and the latter can adjudicate over the offending diplomat.1

3. Are Embassies Considered as Foreign Soil?

The legal status of agencies abroad sometimes leads to confusion. The confusion likely stems from the privileged position that embassies enjoy. These privileges stem from the small but important area of international law known as . Diplomatic law consists of a body of rules contained in treaties and customary international law that facilitate relations between countries and protect embassies and in the conduct of diplomatic relations.

The go-to legal instrument for diplomatic law is the 1961 Vienna Convention on Diplomatic Relations (‘VCDR’). Despite being relatively short (it contains just 53 articles), it has been ratified by nearly every sovereign state, meaning it governs the diplomatic relations of all but a ​ ​ handful of countries. The International Court of Justice (‘ICJ’) acknowledged in the Iranian ​

1 See S. L. Wright. Diplomatic Immunity: A Proposal for Amending the Vienna Convention to Deter Violent Criminal Acts. – Boston University International Law Journal, 1987, vol. 5, pp. 177–211.

4 Hostages case that the VCDR both codified existing customary international law and ​ ​ established new rules to govern diplomatic relations: United States Diplomatic and Consular ​ Staff in Tehran (United States v Iran) [1980] ICJ Rep 3, 24. ​ Article 3 of the VCDR provides that a ‘’ has, among others, the following functions:

1. Representing the sending state in the receiving state. 2. Protecting the interests of the sending state and its nationals in the receiving state. 3. Negotiating with the receiving state’s government. 4. Providing information on the conditions and developments in the receiving state to the government of the sending state. 5. Promoting friendly relations between sending and receiving states.

Article 21 requires a receiving state to facilitate a sending state’s acquisition on its territory of ​ ​ premises necessary for the diplomatic mission, in accordance with the receiving state’s laws. ​ ​ This does not mean that the territory changes hands, but rather that the sending state may purchase or lease premises (with the assistance of the receiving state) within the territory of the receiving state. For the territory to change hands, this would require the receiving state to cede that territory by treaty to the sending state.

Article 22 of the VCDR is probably the main source of confusion as to whether embassies are foreign soil. Article 22(1) provides that the premises of the embassy are inviolable: ‘The agents ​ ​ of the receiving State may not enter them, except with the consent of the head of the mission.’ The receiving state is under a duty to enforce this inviolability, and everything within the premises of the embassy is immune from search or other interferences. Article 24 extends this inviolability to the archives and documents of the diplomatic mission (whether within the embassy or otherwise).

These privileges may give the illusion of sovereignty, but it is actually a high degree of diplomatic immunity to protect the operations of the sending state. Although these distinctions ​ might seem obtuse, there are significant implications. A receiving state is entitled to require the recall of diplomats (in informal terms, to expel diplomats) at any time and without giving reasons, under article 9 of the VCDR; this would not be possible if the embassy was the territory of the sending state because the diplomat would already be on foreign soil. Similarly, extradition processes do not apply where a person hides in an ​ ​ embassy — the head of the diplomatic mission can allow them to stay or can turn them over to the receiving state’s authorities.

The obligation of a receiving state to protect the embassy of a sending state has been raised in two high-profile cases. In the Iranian Hostages case the ICJ was extremely critical of Iran’s failure to protect the US embassy in Tehran, stating that ‘Iran was placed under the most categorical obligations, as a receiving state, to take appropriate steps to ensure the protection of the United States Embassy and , their staffs, their archives, their means of

5 communication and the free movement of the members of their staffs.’ In Congo v Uganda the ICJ emphasised that the receiving state must not only refrain from breaching the inviolability of a diplomatic mission, but must be proactive in ensuring that others (such as armed militia) do not either: Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) [2005] ICJ Rep 168.

Embassies are not foreign soil. They remain part of the territory of the receiving state, but are subject to significant privileges in accordance with diplomatic law. To the extent possible under international law, the laws of the receiving state apply to the embassy, but cannot be enforced by agents of the receiving state on the premises of the embassy without the permission of the head of the diplomatic mission. This allows the sending state’s diplomatic mission to carry out its operations without interference from the receiving state, but means that the receiving state is still able to exercise a limited form of sovereignty.

4. Head of Mission and Their Acceptance by Receiving State

Vienna Convention clearly states that on heads of mission, “the sending state must make certain that the agreement of the receiving State has been given for the person it proposes to accredit as head of the mission to that State.

The receiving State is not obliged to give reasons to the sending State for a refusal of agreement.

While the sending state enjoys the freedom of determining persons in responsible for the mission and head of mission, the receiving state exercises their authority on the commencement and the beginning of mission in the foreign agencies.23 Therefore it can be clearly understood that the selection of the agents (representatives / delegates) of the foreign agency, the receiving state has a say on their arrival and furthermore, the sending state must receive “agrément” (tr: agreman, en: agreement) in reference to the agent.4

In order for the agent to begin his/her mission, it is required for the sending state to send identification details of the agent and receive the official acceptance for the agent from the receiving state. The legal status of the agent is being determined by consensus of both parties (receiving state & sending state). The status varies from to acting ambassador or . The aforementioned consensus is called agréman. In respect to the sending state’s non obligatory situation that they are not obliged to have an consensus (have an agréman), they are also not obliged to state their causes, reasons or motivation of their refusal on the agent.5

2 Prof Dr Kamuran Recber “Diplomasi ve Konsolosluk Hukuku” (en: Law of Diplomacy and ) Dora (Bursa) - 2011 3 Vienna Convention on Diplomatic Relations article 4 4 Prof Dr Kamuran Recber “Diplomasi ve Konsolosluk Hukuku” (en: Law of Diplomacy and Consulate) Dora (Bursa) - 2011 sf: 40 5 Vienna Convention on Diplomatic Relations article 4 section 2 ​ 6