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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 264
December 2, 2006

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Law alter views

Dos and don'ts for diplomats

Md. Rizwanul Islam

Diplomatic laws are among one of the earliest expressions of international law and even in ancient days the representatives of states were accorded with special honour and privileges. With the advent of modern communication technology the role and functions of diplomats have changed to a significant extent. On one account, just around a century ago when there was no e-mail or telecommunication technology they perhaps enjoyed much more authority as their sending states (i.e. the state which has sent him or her as a diplomat) could not communicate them instantaneously and instruct them as to the dos and don'ts. But on another note, as today's world is much more globalised and states have more interactions with each other the functions and role of diplomats have increased and become even more pertinent in international relations. Theoretically the principle of sovereign immunity is the justification of the special privileges awarded to the diplomats. From a pragmatic point of view as all states have their envoys in other states, it is in the interest of all states that the diplomatic agents are protected, e.g. they enjoy immunities from civil and criminal jurisdictions in the territories in which they perform their functions.

Although there is no dispute that diplomats should have special privileges and immunities, controversy often arises as to whether a diplomat's comment or conduct interferes with the internal affairs of the receiving state (i.e. the state in which he or she is acting as a diplomatic agent). Especially in our country this has quite often been a subject matter of controversy. The comments of the 'Tuesday Group' almost invariably features in our newspapers and it's no wonder that in the wake of the upcoming parliamentary election the conduct or comments of the diplomats working here in Bangladesh would be debated. Interestingly in majority of the instances the government has objected to the comments or conducts alleging them to amount to interference with the internal affairs of Bangladesh. But the opposition parties have mostly welcomed or at least not objected. However though this difference of opinion has been driven by political motives, the text of Article 3 (1) and Article 41(1) of the Vienna Convention of Diplomatic Relations, 1961 have also contributed to the debate or at least the exact position of international law on this point is not quite clear. Article 3(1) runs as follows:

1. The functions of a diplomatic mission consist, inter alia, in:
(a) Representing the sending State in the receiving State;
(b) Protecting in the receiving State the interests of the sending State and of its nationals, within the limits permitted by international law;
© Negotiating with the government of the receiving State;
(d) Ascertaining by all lawful means conditions and developments in the receiving State, and reporting thereon to the government of the sending State;
(e) Promoting friendly relations between the sending State and the receiving State, and developing their economic, cultural and scientific relations;
The use of the term 'inter alia' in the first sentence of this Article indicates that this is not an exhaustive list of the functions of a diplomatic agent, rather this merely enumerates a list of functions that a diplomat has been expressly authorised to perform. The wordings of sub-Articles (a) to (c) and (e) are more or less accepted and not so controversial. The wording of sub-Articles (d) is particularly important here. This provision expressly allows diplomats to ascertain by all lawful means the conditions and developments in the receiving state, and report thereon to the government of the sending state. As there is no explanation of 'the conditions and developments in the receiving state', it appears that diplomats may attempt to ascertain even politically sensitive developments and communicate their government regarding such developments. But the limitation imposed here is that they have been empowered to communicate their government, not to any other entity (at least any other entity is not mentioned in the Article). Hence arguably they are not allowed to communicate media or comment in public regarding such developments while functioning as a diplomat.

Another important constraint here is that diplomats are not empowered to express opinion; they are assigned with the task of collecting information. But unfortunately diplomats have not always functioned keeping in mind this limitation. The hotly debated incident of alleging a minister of current government for taking bribe is one such incident where the conduct of Danish diplomats have transgressed the rules of international law as expressed in the abovementioned Article.

Article 41(1) which deals with the duties of diplomats runs as follows: "Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of that State."

This Article expressly imposes a duty on the diplomats not to interfere in the internal affairs of the receiving state. But the problem is what constitutes internal affairs is not defined anywhere in the convention. The scope of the term 'internal affairs' in relation to international law has changed over the years. In earlier times the treatment of citizens by the government was considered as completely an internal affair and not a subject matter of internal law. However the growing concern for human rights has settled that when a government commits gross violation of human rights, though limited to the people within the country's territory, it's not an internal affair.

Internal affairs in the context of diplomatic relations appear to be open to interpretation and it's no wonder that interpretations from different corners would differ. However an interpretative note to article 41(1) could resolve the issue, at least from legal point of view. As least developed countries like ours are heavily dependent on foreign aid, the diplomats of aid giving nations, who are working in these countries would nevertheless have the room for arguing that they too are stakeholders in ensuring good governance in these countries. So their diplomats may endeavour to ensure good governance and on this pretext they can interfere in the domestic affairs of the states receiving substantial foreign aid. Article 3(1) (b) could be used to support such contention. It may be argued that when diplomats do such kind of things they are protecting the interests of their sending state in the receiving state -- something which is permitted by Article 3 (1) (b). But such an interpretation is too wide and on its face contrary to the spirit of the Article.

Another contention that may be raised by them is that disorder and instability within a nation may disrupt international peace and security and diplomats should stand in the way of disorder and instability. But the answer to that would be that this is not a function of a diplomat who is employed mainly to represent his state and promote friendly relations with the receiving state. Grave matters such as international peace and security should be raised and discussed in proper international forum. The diplomats may be referring such issues to their own governments to work as a channel to communicate such matters to the international forum. But if the diplomats comment publicly in domestic forums of the receiving state that would rather complicate the whole thing by jeopardising the friendly relations between the states concerned -- something to promote which they are employed for.

The mistrust among leading political parties in countries like ours would also reinforce their argument, as it is natural that when you cannot run your affairs properly others will have a lot to say in your affairs.

The author is a Lecturer, Faculty of Law, Northern University Bangladesh.


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