UNIT 8: DIPLOMACY.

1. INTRODUCTION​:
Diplomacy can be understand as the promotion of the national interests by peaceful means, so friction in the
international system decreases.
1.1. GRADUAL EVOLUTION OF DIPLOMACY OVER THE CENTURIES:
There has been an evolution from habit to custom and form custom to treaty. nowadays there is a high
degree of legal security, because of two reasons, the codification of customary law and the universal acceptance.
Ex: Vienna COnvention on DIplomatic relations of 1961: is an international treaty that defines a framework for
diplomatic relations between independent countries. Its objective is to maintain diplomatic missions between states.
1..2 FUNCTIONS OF DIPLOMACY:
- Representative: The personification of the state. Necessary for interaction. However there is not the same
power equality between the different states. Ex: Veto in the UN.
- Communicative: This is how states communicate. There are usually tensions, because of the different
instruments that the states use. Ex:High context cultures like Japan.
- Instrumental: This is how the state pursues its interests
- Systemic: Negotiation and peace is promoted as alternatives to the use of force and warfare.

2. DIFFERENT MODALITIES OF DIPLOMACY:

- Permanent missions. Ex:Embassies. It’s function is to represent the sending State in the Receiving State.
Ex: Negotiation with the Government of the receiving State, promote friendly relations...
- Ad-hoc missions or special missions: To send an envoy for the personal representative for one concrete
purpose. Frequently headed by a minister/Head of State. Ex: Visits, meetings, international conferences.
There is a Convention on Special Missions by the UN Assembly.
- Multilateral diplomacy:
+ International conferences: Immunities are provided by the host state according to special agreement.
+ International organizations: Missions similar to permanent bilateral missions. Hoos state determines
immunities and privileges according to an agreement with the IO.
- Paradiplomacy: International relation conducted by subnational or region governments on their own, with a
view to promoting their own interests. Ex: The Basque Country delegation in Brussels. They lobby for better
budgets.
- Common EU diplomacy: EU works as a diplomatic actor in representation of the Member States. It has
presence in third parties and international organizations. For this purpose the European External Action
Service was created.
- Public diplomacy: It is the direct communication with foreign publics, to promote nation-branding. Ex:
Euskadi, Gaztelugatxe, food and the Guggenheim.
- Depending on the channels: Between diplomat and ambassador, diplomat and diplomat, diplomat and
government, diplomat and MFA (ministry of foreign affairs)... There are also unofficial channels. Ex:Basque
Country embassy in Brussels. There is the possibility of multiple accreditation: 1 person is appointed for
different countries. Ex: Small countries.

3. DIFFERENT STATE INSTITUTIONS:

- Internal:
+ Head of State.
+ Head of Government.
+ Minister of Foreign Affairs.
- External:
+ Diplomatic missions: Group of people from the sending State to represent it in a receiving State
+ Consulates:
3.1. CONSULATES: The office of a Consul, (the one exercising jurisdiction). An official representative of a
state outside its territory.
- It is distinct form diplomatic missions. Is the State administration in the exterior. It doesn't enter relations
between states. However, it is the diplomatic missions that fulfil also the consular function. There is a
consular section.
- It is regulated by the Vienna Convention on Consular Relations of 1963: international treaty that defines a
framework for consular relations between independent states. It shall not affect the other international
agreements in force as between parties to them. It gave immunities and privileges to consular relations:
 + Consulates: Inviolability of the building, the receiving State has the obligation to protect it and the
inviolability of communications. In the case of the diplomatic bag it can be sended back if concrete
suspicious.
+ Consul: He’s residence cannot be violated, its immunity is limited to its functions and it doesn’t
include their family and has fiscal and customs exemptions.
+ Honorary consulate (citizens of receiving state): They have no immunities but the States is obligated
to protect them, inviolability of documents.
- It has certain obligations: It must have the authority of the sending state and the authorization of the
receiving state
- It has different functions:
+ Gve consular assistance: General defence of the interests of persons and businesses.
+ International judicial cooperation: Communication through consulates.
+ Give passports to citizens and visas to foreigners. Also other administrative function of the states.
Ex: Voting, marriage or registration of births.
+ Control and inspection of ships and aircraft of its nationality.
3.2. HEAD OF STATE: He has certain privileges:
- Inviolability: Personal, residence, belongings and correspondence.
- Immunity ratione personae: It covers all acts, official and private.
- Immunity ratione materiae: It protects all States officials from jurisdiction of municipal courts of the forum
State in respect of acts committed in their official capacities.
3.3. MINISTER OF FOREIGN AFFAIRS (MFA): It has the same immunities as diplomats.

4. DIPLOMATIC IMMUNITY:
Diplomatic immunity has evolved from State immunity. The coming of a technological age, speedy transport,
instant communications, plus a growing and evolving global agenda of States, and the emergence of new
international non-State actors, has changed the way in which inter-State relations are conducted. The ICJ stated
that diplomatic immunity is essential for the maintenance of relations between states and is accepted by nations of
all believes, cultures and political natures. Diplomatic relations are based on mutual consent between the sending
State and the receiving State. The rules on diplomatic immunity are universally respected. The protection of the
representatives of another State is necessary to ensure that they can perform their international political functions
without fear of prosecution.
4.1. STAFF OF THE MISSION: Absolute immunity was abolished and a qualified immunity is now applied,
even to a head of a diplomatic mission. Three categories of diplomatic mission, depending on their extent of
immunity:
- Diplomatic agents (head of the mission and members of diplomatic staff – counsellors, attaches,
secretaries…; and their family which forms part of his household, unless they are nationals or permanent
residents of a receiving State). It's a way to ensure the efficient performance of the functions of diplomatic
missions as representing States. They have some immunities and duties:
+ 31. From the criminal jurisdiction of the receiving State. Also from the civil and administrative
jurisdiction. Except for example: Professional or commercial activity outside the official functions.
+ 31.2. Is not obliged to give evidence as a witness.
+ 34. Exemption from all dues and taxes.
+ 36. The personal baggage of a diplomatic agent shall be exempt from inspection, unless serious
grounds of presuming that it contains articles not covered by the exemption.
● To respect the laws and regulations of the receiving States and to not interfere in the internal affairs
of that State.
● He doesn’t have immunity from the jurisdiction of the sending State.
- The members of the administrative and technical staff of the mission (clerks, typists, translators, radio and
telephone operators… and their families which form part of his household, unless they are nationals or
permanent residents of a receiving State). They don’t enjoy immunity from civil and administrative jurisdiction
in private acts.
- Member of the service staff (butlers, maids, cooks, chauffeurs, porters, cleaners… which are not nationals or
permanent residents of a receiving State). They enjoy immunity only from the civil jurisdiction in act
performed at work.
4.2. EXPULSIONS OF INDIVIDUAL DIPLOMATS: A receiving State can at any time and without any
explanation declare a head of a mission, a member of its diplomatic staff or a consular agent, as unacceptable. This
is considered a rule of customary international law. The sending State normally recalls the diplomat concerned but if
not, the receiving State may refuse to consider him as being a member of the mission. Three main reasons for
which a diplomat may be declared persona non grata(Art 9):
- The diplomat´s personal behaviour, such as the commission of a criminal or anti-social act or an abuse of his
diplomatic status which endangers the security and other interests of the receiving State.
- As a vengeance against a sending State which has declared the same to one of its diplomats.
- Diplomats of a sending State to comply with a binding resolution of the UNCS.

4.3. INVIOLABILITY OF DIPLOMATIC AGENTS: All diplomats and their families which form part of his
household, unless they are nationals or permanent residents of a receiving State, enjoy personal inviolability. A
receiving State must treat them with respect and must ensure complete protection against physical violence and
attacks on their dignity and freedom. Inviolability is extended to the private residence of a diplomat, his papers,
correspondence and his other property.

4.4. INVIOLABILITY OF THE MISSION, ITS RECORD AND COMMUNICATION (Art 27)
1. The receiving State shall permit and protect free communication on the part of the mission for all official
purposes.
2. All correspondence related to the mission shall be inviolable.
3. The diplomatic bag shall not be opened.
4. The diplomatic bag must have visible external marks of their character and may contain only diplomatic
documents or articles intended for official use.

4.5. CESSATION OF IMMUNITIES AND PRIVILEGES: Immunities and privileges normally cease at the
moment when a diplomat leaves the receiving country. In the cessation of immunities it is important to make a
distinction between functional and personal immunity. Functional immunity covers acts and transactions performed
by a diplomat in his official capacity and is everlasting while personal immunity covers all activities of a diplomat
performed during the period of his mission in a receiving State, but expires at the end of that period. Foreign
diplomats and their families are not entitled to the right of residence or to expedited immigration procedure after the
expiry of the secondment to their mission.
4.6. WAIVER OF IMMUNITY (suspensión de la inmunidad): The sending State must waive immunity at its
discretion and the waiver must always be express. A waiver of the immunity belongs to the State and not to the
diplomatic representatives themselves.

5. QUASI-DIPLOMATIC PRIVILEGES AND IMMUNITIES

Consuls, although representatives of their States in another State, haven’t got the same degree of immunity
in the receiving State as diplomatic agents. Their functions are the protection of the interests of the sending States
and its nationals, the development of economic and cultural relations, the issuing of passports and visas, the
registration of births, marriages and deaths, and the supervision of vessels and aircrafts attributed to the sending
State.
A consul enjoys a limited degree of immunity in respect of his official functions. Consular officers must not be
arrested, detention or go to prison, except in the case of grave crime. Career consuls (different to honorary consuls)
are exempt from taxation and customs duties in the same way as diplomats and consular premises, archives and
documents are inviolable. Immunity and protection is customary law.

6. ENTITIES WITH IMMUNITY FROM THE JURISDICTION OF THE MUNICIPAL COURTS OF

FOREIGN STATES.
- Foreign sovereigns, heads of State and other high ranking officials and a foreign State itself. It is codified in
customary international law. Immunity may be removed when a head of State or any other high ranking official
is accused of the commission of international crimes.
- Diplomatic agents of a foreign State.
- International organisations and their representatives.
- Consular officers. Although consular officers of a foreign State are not diplomatic representatives, they enjoy
some measure of immunity.
- Armed forces in the territory of a foreign State when they are present with the consent of the State.
procedimiento ratione materiae
7. STATE IMMUNITY,NON-JUSTICIABILITY AND THE ART OF STATE DOCTRINE:
 It is important to make a distinction between three doctrines which often apply in cases involving foreign
governments: State immunity, non-justiciability and act of State.
- A plea of State immunity: A national court cannot exercise its jurisdiction because of the status of the
defendant.
- A plea of non-justiciability: Municipal court has no jurisdiction because the subject matter of the proceedings
is not suitable for judicial determination.
- The act of State doctrine: The act of State doctrine is a group of a wider doctrine of non-justiciability. The
doctrine applies to governmental acts of a recognised foreign state. The doctrine may apply to acts of more
than one State. In applying the principle of non-justiciability judicial control must be exercised but not judicial
abstention.
+ The act of a State must take place in the territory of the foreign State.
+ The doctrine will not apply to foreign acts of a State which are in breach of international law.
+ A judicial act will not be regarded as an act of State.
+ The act of State doctrine doesn’t apply when acts of a foreign State are only considered as a
question of fact.

8. STATE IMMUNITY AND ITS EVOLUTION

- The main legal and political justifications for the existence of State immunity:
+ The principle of sovereign equality and independence. Since States are independent and equal, no
State should be subjected to the jurisdiction of another State without its consent. Legal persons of
equal standing cannot have their disputes settled in the courts of one of them. Otherwise there would
be an attack on the dignity of a foreign State.
+ The inability to enforce judgements of a forum State against a foreign State. Immunity remains
absolute in respect of acts of a public and governmental nature and private acts of State (such as
commercial transactions). Any attempt to enforce a judgement rendered against a foreign State
would create tension between the two States and upset friendly relations and also be contrary to the
principle of non-intervention.
+ Entitlement of foreign sovereigns of immunity similar to that enjoyed by them in the municipal law of
their home State. The sovereign of another State was similarly exempt from jurisdiction of the local
law. This argument is largely of historical value bearing in mind that in a democratic State the
principle of transparency and accountability.
- Critics to the immunity of the State:
+ It is incompatible with the development of international criminal law because it defends heads of
State and other high-ranking officials from being responsible for grave human rights abuses.
+ The prohibition of crimes having the character of jus cogens, such as genocide crimes against
humanity, war crimes, torture… should prevail over the rules on State immunity, which don’t enjoy
the status of jus cogens.
+ It clashes with basic human rights, such as the right of access to a court.
- Distinction between immunities: A State can only act through its officials, acts of State officials are acts of the
State itself and are attributed to that State. It is important to make a distinction between immunity ratione
personae and ratione materiae.
+ Immunity ratione personae: It is enjoyed by head of States and some other high-ranking officials and
it covers all acts, officials and private. It ends when the head of State or the official vacates the post.
Ex: Pinochet, was denied immunity ratione personae because he was no longer head of State.
+ Immunity ratione materiae or functional immunity: It protects all States officials from jurisdiction of
municipal courts of the forum State in respect of acts committed in their official capacities.
- Distinction between State immunity in criminal and in civil foreign proceedings. A head of State and other
high-ranking officials have no immunity in relation to criminal proceedings for international crimes but
immunity in relation to civil proceedings.
8.1. ABSOLUTE IMMUNITY: It is justifiable when it applied to sovereign person, but was called into question
with the increased participation of States in commercial activities.
8.2. THE RESTRICTIVE APPROACH-THE REMOVAL OF IMMUNITY IN RESPECT OF ACTA JURE
GESTIONIS: The need to impose restrictions on State immunity became apparent with the development of
international trade. Therefore, a State could claim immunity only in relation to acts jure imperii, public acts of the
government of the State and not acta jure gestionis, private acts such as trading and commercial activities. In order
to determine the non-commercial character of the contract or transaction, it should be made reference to the nature
of the contract or transaction but also to its purpose, if the parties have agreed so.
 8.4. CHALLENGES THE DOCTRINE BASED ON THE DEVELOPMENT OF INTERNATIONAL HUMAN
RIGHTS LAW, INTERNATIONAL CRIMINAL LAW AND EXISTENCE OF PEREMPTORY RULES OF
INTERNATIONAL LAW- JUS COGENS: The development of international criminal law has established that an
individual can be responsible for grave human rights and humanitarian law abuses. Jus cogens rules, which prohibit
crimes such as genocide, crimes against humanity, war crimes and torture, should prevail over the rule on State
immunity which doesn’t enjoy the status of jus cogens. Therefore, a State and its representatives should be denied
immunity for acts performed violating a jus cogens rule. The development of human rights law which make
individuals subject to international law, should be protected at national and international level and immunity should
not be available when it clashes with the basic requirements of HRL.
- Immunity from foreign criminal proceedings: It is necessary to distinguish between immunity from criminal
proceedings enjoyed by heads of State and other high ranking officials, from that enjoyed by them when they
are no longer in office.
+ Ratione personae immunity enjoyed by heads of State and other high ranking officials: High ranking
State officials, when they are in office, enjoy ratione personae immunity from foreign criminal
jurisdiction. Under customary international law, foreign ministers, when they are abroad enjoy full
immunity from criminal jurisdiction as well as inviolability protecting them from any act of authority by
another State. The ICJ rejected any distinction between acts performed in an official capacity and
those performed in a private capacity, or acts performed before or during the holding of the office of
foreign minister. When a head of State acts in his official capacity as an organ State, his acts or
omissions are attributed to the State and therefore any breach of international law committed by a
head of State is considered as a breach of the international obligations of that State. The head of
State enjoys the same immunity as the State itself. The troika (heads of State, heads of government
and foreign ministers) enjoy immunity and it extends to other State officials when performing official
functions. Immunity doesn’t mean impunity (exemption from punishment), immunity doesn’t affect
individual criminal responsibility. Therefore, the individual can be judged by the courts of his own
country or by the ICC, when his State suspend his immunity and allows another State to bring him to
justice or after he ceases to hold public office.
+ Immunity of heads of State and other high ranking State officials before international criminal
tribunals. It is debated if international criminal courts can accuse heads of State and arrest them.
Finally, immunity means impunity and a State can indeed, get away with murder.
+ Ratione materiae immunity of heads of State and other high ranking official from foreign criminal
jurisdiction: After a person ceases the office of Minister for Foreign Affairs, he will no longer enjoy all
of the immunities accorded by international law in other States Therefore, courts of other States have
jurisdiction under international law to judge a Minister for Foreign Affairs of another State for acts
committed before and after his period of office as well as acts committed during that period of office
in a private capacity.
Persons who act on behalf of a State enjoy only immunity ratione personae. When it ceases such persons
cannot claim immunity from foreign criminal jurisdiction.
- Immunity from foreign civil proceedings: Under customary international law, both a State and its officials
enjoy immunity from foreign jurisdiction in civil proceedings relating to the commission international crime,
irrespective if State officials are in office or have left the office. When there is a conflict between State
immunity and human rights law, victims should have equal and effective access to justice and adequate,
effective and prompt reparation for arm suffered. The results are that the victim is denied any reparation and
the impunity of the criminal. Nevertheless, States have no immunity in respect of damages for torture
committed outside the forum State and officials have no immunity for jus cogens violations.