Inviolability of the Archives

This chapter considers Article 24 of the Vienna Convention on Diplomatic Relations which deals with the inviolability of the archives. Article 24 states that the archives and documents of the diplomatic mission shall be inviolable at any time and wherever they may be. In essence, the Article highlights the protection of confidential information. The chapter describes the developments made by the International Law Commission and the Vienna Conference to extend the principle of inviolability of archives and documents. The expression ‘inviolable’ was chosen by the Commission to convey both that the receiving State must abstain from any interference through its own authorities and that it owes a duty of protection of the archives in respect of unauthorized interference by others. Secondly, the Vienna Conference added the words ‘at any time’ in order to make clear that inviolability continued without interruption on the breaking of diplomatic relations or in the event of armed conflict.

Classes of Heads of Mission

10.1093/law/9780198703969.003.0015 ◽

2016 ◽

Author(s):

Denza Eileen

Keyword(s):

International Law ◽

Foreign Affairs ◽

Vienna Convention ◽

Diplomatic Relations ◽

Holy See ◽

Heads Of State ◽

Respective State ◽

This chapter analyses Articles 14 and 15 of the Vienna Convention on Diplomatic Relations. Article 14 organizes the heads of the diplomatic of each respective State into three classes, namely: (a) that of ambassadors or nuncios (in the case of the Holy See) accredited to Heads of State and other heads of mission of equivalent rank; (b) that of envoys, ministers and internuncios accredited to Heads of State; and (c) that of chargés d’affaires accredited to Ministers for Foreign Affairs. The Article also makes it clear that there shall be no differentiation between heads of mission by reason of their class. Article 15 further concerns the classes of the heads of mission as it states that the classes to be assigned shall be agreed between the States. The chapter also looks into how the International Law Commission faced the concerns surrounding the classes leading up to the formation of both Articles.

Size of the Mission

10.1093/law/9780198703969.003.0012 ◽

2016 ◽

Cited By ~ 1

Author(s):

Denza Eileen

Keyword(s):

United States ◽

International Law ◽

Vienna Convention ◽

Diplomatic Relations ◽

This chapter explores Article 11 of the Vienna Convention on Diplomatic Relations which deals with the appropriate size of the diplomatic mission. Before the mission, both of the sovereign States involved can agree on its size. If there is no prior agreement, then the receiving party may require the size to be reasonable and normal. The Article also states that the receiving State may refuse to accept officials of a particular category. The International Law Commission decided that a balance must be struck between the interests of the sending and the receiving State. The chapter then highlights the controversy that emerged due to the text used in the second paragraph that certain nations such as United States became unhappy with the phrase ‘that the receiving State may refuse to accept officials of a particular category’ even though the Commission stresses that it non-discriminatory and is used in the context of the first paragraph regarding the size of the mission.

Functions of a Diplomatic Mission

10.1093/law/9780198703969.003.0005 ◽

2016 ◽

Author(s):

Denza Eileen

Keyword(s):

International Law ◽

Vienna Convention ◽

Diplomatic Relations ◽

The Government ◽

This chapter examines the development of Article 3 of the Vienna Convention on Diplomatic Relations which provides an overview of the functions of a diplomatic mission. The International Law Commission cites the notions of the diplomat Ernest Mason Satow who states that the functions of a diplomatic mission are to represent the sending State, to protect its interest and those of its nationals, to negotiate with the government of the receiving State, to report the sending government on all matters of importance to it, and to promote friendly relations in general between the States. The chapter looks into the two main points of discussion within the Commission that emerged throughout the Article’s formation: the function of ‘protecting in the receiving State the interests of the sending State and of its nationals’, and the entitlement of diplomatic missions to perform consular functions.

Establishment of Diplomatic Relations

10.1093/law/9780198703969.003.0004 ◽

2016 ◽

Author(s):

Denza Eileen

Keyword(s):

International Law ◽

Vienna Convention ◽

Diplomatic Relations ◽

Sovereign State ◽

Holy See ◽

Foreign State ◽

The Status ◽

The Right ◽

This chapter analyses the Article 2 of the Vienna Convention on Diplomatic Relations which states that diplomatic relations, and of permanent diplomatic missions, takes place by mutual consent. It outlines the changes and development that led to the formation of the article. The International Law Commission traces the roots of the second article from a state’s right to legation, the right of sending a diplomatic mission to a foreign state. However, in order to determine whether an entity has the ‘right of legation’, it is necessary to determine whether or not it is a State. For most of the Parties of the Convention, the right to conduct diplomatic relations is generally regarded as flowing from recognition as a sovereign State. The chapter describes some instances where recognition plays an important factor in diplomacy, such as the status of Palestine and the Holy See.

Preamble

10.1093/law/9780198703969.003.0002 ◽

2016 ◽

Author(s):

Denza Eileen

Keyword(s):

International Law ◽

Theoretical Basis ◽

Character Theory ◽

Vienna Convention ◽

Diplomatic Relations ◽

Customary International Law ◽

Progressive Development ◽

The Relationship ◽

This chapter describes the Preamble of the Vienna Convention on Diplomatic Relations set forth by the International Law Commission, the main legal body which promotes the progressive development of international law and oversees its codification. It briefly describes three theories that form as the basis of the statements written at the Preamble —the ‘exterritoriality’ theory, the ‘representative character’ theory, and the ‘functional necessity’ theory. All of these theories heavily influence matters regarding diplomatic privileges and immunities. Ultimately, the Preamble to the Convention has two important legal functions—to state the view of the participating States on the theoretical basis of diplomatic privileges and immunities, and to make explicit the relationship between the Convention and customary international law.

Acquisition of Nationality

10.1093/law/9780198703969.003.0055 ◽

2016 ◽

Author(s):

Denza Eileen

Keyword(s):

International Law ◽

Vienna Convention ◽

Diplomatic Relations ◽

Optional Protocol ◽

Illegitimate Child ◽

Service Staff ◽

This chapter examines Optional Protocol concerning the Acquisition of Nationality to the Vienna Convention on Diplomatic Relations. Prior to the Convention, the position was that States which conferred their nationality as a matter of course on children born within their territory. The optional protocol of acquiring nationality formulated by the International Law Commission extends this rule. Under the protocol, a child whose father or mother is a member of a diplomatic mission of whatever rank and is not a national of the receiving State will not automatically acquire the nationality of the receiving State by virtue of birth within its territory. The exception therefore includes a child born to a father who is a member of the service staff of the mission and whose wife is a national of the receiving State, the illegitimate child born to a woman member of the mission, a child born to the sister of a diplomat married to a national of the receiving State, and a child born to a woman member of the mission married to a national of the receiving State.

Exemption of Official Fees from Taxation

10.1093/law/9780198703969.003.0029 ◽

2016 ◽

Cited By ~ 1

Author(s):

Denza Eileen

Keyword(s):

International Law ◽

Vienna Convention ◽

Diplomatic Relations ◽

This chapter explores Article 28 of the Vienna Convention on Diplomatic Relations. The Article states that the fees and charges levied by the diplomatic mission in the course of its official duties shall be exempt from all dues and taxes. The Article serves as one of the fastest to finalize by the International Law Commission, as the principle of exempting tax during a diplomatic mission is universally accepted between sovereign States. For the most part, fees and charges levied by a diplomatic mission are likely to relate to functions which might be regarded as consular in nature—for example, passport and visa fees and charges for authenticating or legalizing documents. Possible restrictions and rules applicable where a diplomatic mission performs consular functions are discussed in the context of Article 3 of the Convention.

Offices away from the Seat of the Mission

10.1093/law/9780198703969.003.0013 ◽

2016 ◽

Author(s):

Denza Eileen

Keyword(s):

General Practice ◽

International Law ◽

Vienna Convention ◽

Diplomatic Relations ◽

The Government ◽

This chapter examines Article 12 of the Vienna Convention on Diplomatic Relations which refers to the establishment of offices away from the seat of the diplomatic mission. Article 12 states that the members of the sending State may not establish offices forming part of the mission in the localities other than those where the mission itself is established without prior express consent. The Article traces its roots from the general practice of missions being established in the seat of government of the receiving State and to follow that government if it moved either permanently or to a summer residence. However, there are exceptions to this. One example would be in China when between 1927 and 1937; many of the missions remained in Peking although the Government had moved to Nanking. In making the Article, the members of the International Law Commission stressed the difficulty for the receiving State in ensuring privileges and immunities away from the seat of government and to prevent abuses.

Definitions

10.1093/law/9780198703969.003.0003 ◽

2016 ◽

Author(s):

Denza Eileen

Keyword(s):

International Law ◽

Vienna Convention ◽

Diplomatic Relations ◽

Technical Staff ◽

Service Staff ◽

Key Terms ◽

This chapter examines Article 1 of the Vienna Convention on Diplomatic Relations which defines some of the key terms used in the Convention. The article specifically defines nine terms—(a) head of the mission; (b) members of the mission; (c) members of the staff; (d) members of the diplomatic staff; (e) diplomatic agent; (f) members of the administrative and technical staff; (g) members of the service staff; (h) private servant; and (i) premises of the mission. Definitions (a) to (h) of the Article that concern the various categories of persons whose appointment, privileges, and immunities are prescribed by the Convention are almost entirely formal in character. The last definition, definition (i) premises of the mission, is objective. According to the International Law Commission on their 1958 draft, premises include the buildings or parts of buildings used for the purposes of the mission.

Personal Inviolability

10.1093/law/9780198703969.003.0030 ◽

2016 ◽

Author(s):

Denza Eileen

Keyword(s):

International Law ◽

Vienna Convention ◽

Diplomatic Relations ◽

Personal Service ◽

Legal Process ◽

Draft Article ◽

Law Commission ◽

Take All

This chapter examines Article 29 of the Vienna Convention on Diplomatic Relations which deals with personal inviolability of a diplomatic agent. The Article states that a diplomatic agent shall not be liable to any form of arrest or detention and that the receiving State shall treat him with due respect and shall take all steps to prevent any attack on his person, freedom, or dignity. In the Commentary on the draft article, the International Law Commission expressed that the diplomatic agent is exempted from certain measures that would amount to direct coercion. Personal inviolability precludes personal service of legal process on a diplomat or other entitled member of a diplomatic mission. Although service of process does not involve arrest or detention and does not in any real sense involve attack on the person, freedom, or dignity of the diplomat, it is a manifestation of the enforcement jurisdiction of the receiving State.