THE VIENNA CONVENTION

VIENNA HAS A LOT OF CONVENTIONS!

Congress of Vienna (181415)

Vienna Convention on Diplomatic Relations (1961)

Vienna Convention on Civil Liability for Nuclear Damage (1963)

Vienna Convention on Consular Relations (1963)

Vienna Convention on the Law of Treaties (1969)

Vienna Convention on the Representation of States in their Relations with International Organizations of a
Universal Character (1975)

Convention on the Issue of Multilingual Extracts from Civil Status Records (1976)

Vienna Convention on Succession of States in respect of Treaties (1978)

United Nations Convention on Contracts for the International Sale of Goods (1980)

Vienna Convention for the Protection of the Ozone Layer (1985)

Vienna Convention on the Law of Treaties between States and International Organizations or between International
Organizations (1986)

United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988)

THE LEGAL BACKGROUND

Now there are two rights of ambassadors which we see are everywhere referred to the law of nations. The
first is that they be admitted, the second, that they be free from violence (Grotius, on the Right of Legation, in Berridge
2004: 101)

Vienna Regulation (1815)

Institute of International Law resolutions (1895 & 1929)

Havana Convention Regarding Diplomatic Officers (1928)

Harvard Draft Convention on Diplomatic Privileges & Immunities (1932)

The work of the International Law Commission

In its very first session in 1949, the International Law Commission (ILC) included the codification of
diplomatic law on its list of codifying tasks. The ILC is an important institution. Many international
conventions have been drafted by it. Composed of legal experts with various backgrounds academic,
diplomatic corps, international organisations, etc. its members are elected by the General Assembly for
the duration of five years. In the early 1950s,Yugoslavia took the initiative in the UN General Assembly and
advocated for prioritising the codification of diplomatic law. With this initiative finding a friendly response
from other member states, the General Assembly requested the ILC to work on a draft convention. The
Commission drafted articles for such a convention and, by 1958, redrafted them, taking into account
comments by the General Assembly and twenty-one member states. (Bjola & Kornprobst 190)

THE CONVENTION

On of the legal cornerstones of contemporary international relations

'It frequently happens that a minister is entrusted with commissions that are disagreeable to
the sovereign to whom he is sent. If that prince has any power over him, and particularly if
he has sovereign authority over him, how is it to be expected that the minister will carry
out the orders of his master with the requisite fidelity, courage, and freedom?' (Vattel 1758:
book 4, para. 92, quoted in Berridge 2010: 109)

The functional approach (it exists because it allows for the proper functioning of diplomatic
missions & diplomatic relations)

Signed 18 April 1961, by 60 states, entered into force on 24 April 1964

190 states are party to the convention

exceptions are Antigua and Barbuda, Republic of Palau, Solomon

Islands, South Sudan and Republic of Vanuatu, as well as UN observer
states Holy See and State of Palestine

THE KEY PROVISIONS

1. Mission premises are inviolable
2. Diplomatic immunities

Diplomats not liable for arrest or detention (art 29)

But immunity is not impunity:

Disciplinary action by head of mission

Withholding of minor privileges (e.g. fiscal)

Waiving of diplomatic immunity (arts 32 & 45)

Declaration of persona non grata

3. The host state has a duty to protect the communication lines between the embassy and the
sending state

Inviolability of archives & documents (art 24)

Free communication protected (art 27), especially the diplomatic bag (must never be opened)
and the diplomatic courier (must never be detained or arrested)

4. Embassies should not interfere in the affairs of their host state (art 41)

OTHER PROVISIONS

Art 2 - The establishment of diplomatic relations between States, and of permanent

diplomatic missions, takes place by mutual consent

Art 3 - codifies the functions of a diplomatic mission

Arts 4-8 - Accreditation & appointment of staff rules

Art 9 - Persona non grata

Arts 33, 34 & 36 - Privileges: social security (33) exemption from taxes (34) & customs
(36)

Art 37 - Family members living in host country enjoy the same protection as the diplomat

Arts. 41 & 42 - Compliance with laws and regulations of host state

Optional protocols (need not be accepted when ratifying the treaty)

Concerning acquisition of nationality. The head of the mission, the staff of the mission,
and their families, shall not acquire the nationality of the receiving country.

Concerning compulsory settlement of disputes. Disputes arising from the

interpretation of this treaty may be brought before the International Court of Justice.

PERSONA NON GRATA

Given the immunity granted to diplomats in the Vienna Convention, there is only so much host
countries can do to diplomats they accuse of misdoings. Yet Article 9 of the Convention codifies one
of the sharpest weapons available in such cases: to declare a diplomat persona non grata. The sending
state then ought to recall such a diplomat to his or her capital. If this does not happen, the Convention
reserves the right to refuse to recognize the person concerned as a member of the mission. Yet this
last sanction is rarely applied. In diplomatic practice, declaring a diplomat persona non grata amounts
to expelling this diplomat from the host country. Reasons why a host state declares a diplomat
persona non grata vary widely.

In 1996, for example, Canada threw out a Ukrainian vice-consul for alleged drunk driving and
similar offenses.

In 2004, Mexico declared a Cuban diplomat persona non grata after Castro had declared that
Mexicos prestige had turned into ashes.

In 2005, a Czech diplomat had to leave Belarus due to alleged sexual misconduct.

In a case that was in the newspaper headlines for quite some time, the UK declared four Russian
diplomats personae non gratae in 2006, when Moscow refused to extradite Andrej Lugovoy. The
latter was suspected of having killed Alexander Litvinenko with the radioactive isotope
polonium-210 in London. The victim and alleged perpetrator had formerly been associated with
the Soviet and Russian intelligence services. The Russian government responded by making four
British diplomats pack their suitcases.

During the Cold War, allegations of spying were the main reason for declaring a diplomat persona
non grata. The numbers of expelled diplomats could be quite considerable. In 1971, Britain sent
105 Soviet citizens home, many of them diplomats.

COMPLIANCE & NON-COMPLIANCE

Political work abroad (e.g. democratisation)

Failure to grant protection to embassies (or compliance in violations)

Iranian Revolution & embassy attacks

Attacks against US diplomats & embassies in the Innocence of Muslims movie

case

Targeting of diplomatic staff

Some states outsource this more sensitive work to other organisations &
agencies that dont have the same diplomatic status

The Pinochet case?

Tampering with diplomatic communications by law enforcement & intelligence

agencies

KEY ISSUES

The ongoing importance of non-legal norms, and unwritten rules

Should the convention be updated?

Important actors not covered: IOs, NGOs, subnational diplomacy

actors, transnational corporations

The issue of diplomatic asylum

The inviolability of the diplomatic & consular bags vs. evolution of

detection technologies without opening it (e.g. airlines scanning)

Domestic slavery cases & immunity for conduct in private life

(proposed amendments)

How should it be updated?