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BRIEF CONTENTS

The first Chapter of this volume begins with general, theoretical ap­proaches to diplomacy and diplomatic law. The role of diplomacy as an in­strument of the external policy of a State has always been of exceptional importance. Along with an external policy, it is dictated by State interests. In different periods of development, diplomacy greatly affected the fates of States and, if States employed it effectively, they achieved satisfactory re­sults. Conversely, many international conflicts and wars broke out as a re­sult of ineffective, shifty, partisan and even immoral diplomacy.

It is important to emphasize that diplomacy plays a decisive role in the process that creates the rules of International Law. Moreover, it stimulates the emergence of customary and treaty rules. Diplomacy helps create and promote friendly relations between countries whereas International Law, with its precisely set system of rules and institutions, regulates these rela­tions.

Diplomacy and International Law often coincide in their conceptual meaning, but they often differ substantially as well. International Law func­tions as an integral system with its own body of rules and institutions, whereas we cannot speak of integral diplomacy but only of the diplomacy of each State without common, universally recognized standards.

The main aim of modern International Law is to compel States to behave diplomatically, bearing in mind the universally recognized norms and codes of International Law and to coexist within the limits regulated by this Law. This means that actions which contradict international rules cannot be jus­tified in diplomacy. Diplomacy is realized by specific forms which shape its legal framework.

Diplomatic activity comprises: a) diplomatic conferenc

es, congresses, meetings; b) diplomatic correspondence; c) permanent diplomatic missions; d) State representative participation in the activity of international organi­zations and institutions; e) extensive media coverage of State attitudes to­wards current affairs or distant international events. Thus, diplomatic ac­tivity varies from the gathering of information and the evaluation of host country politics, via the direct protection of the legal interests of fellow nationals who are in trouble in that country (consular function), to interna­tional negotiations and the delivery of special messages to a host govern­ment. However, diplomacy has come to mean something slightly apart from this. It has come to describe an entire method of resolving international conflicts which, though very often referred to in the media, is rather hard to define precisely.

In this Chapter the author also turns to the main stages of development in world diplomacy and particularly in Ukraine. One of the main tasks of Ukrainian diplomacy has been to establish and develop Ukraine as an inde­pendent and democratic state. The fundamental constituents of this process have been as follows: to guarantee Ukraine a stable international position; to preserve State unity and the inviolability of State borders; to meet the demands of its citizens and improve their welfare; to protect the rights, freedoms and interests of the citizens of Ukraine as well as its legal entities abroad.

Within its diplomatic activity, the principle of the primacy of Ukrainian foreign policy is adhered to, which defines the supremacy of universally recognized rules of International Law over the rules of internal law.

This work shows that Diplomatic Law can be both active and passive. Though this division is relatively arbitrary, analysing various aspects of this legal phenomenon from the theoretical standpoint can be rewarding.

As any diplomatic activity is connected basically with a decision-making process, consequently, Diplomatic Law regulating this activity is realised through clearly set rules, which form its original source basis.

The second Chapter is devoted to the internal system by which diploma­tic activity is organised. The author differentiates those bodies which have authority and power in the field of international relations into national and foreign bodies. From the International Law standpoint, the activity of these bodies is treated as a manifestation of the will of the State. That is why any decisions taken by these bodies concerning international activity do impose obligations on other States and international organisations.

The internal system of State bodies which participate in the diplomatic process comprises Parliament, the Head of State, the Head of Government, Government, the Ministry of Foreign Affairs. The legal basis for the activi­ty of these bodies in the realm of Ukraine's international relations is the Constitution, its laws and legislative acts. State bodies, exercising their duties abroad, consist of permanent diplomatic missions, State missions to interna­tional organisations, consular posts, special missions or so-called ad hoc missions.

The third Chapter deals with a comprehensive study of the issue of dip­lomatic relations establishment. The legal international procedure for estab­lishing diplomatic relations consists of several closely connected stages, which comprise diplomatic recognition, the establishment of international relations, the exchange of missions, or the maintenance of diplomatic contacts by other means. A bilateral agreement or any other identical instrument involving the exchange of notes, are instruments affirming the establishment of dip­lomatic relations de facto. Agreements between States on the establishment of diplomatic relations and the exchange of diplomatic missions are the es­sential grounds for further agreements on the regulation of such problems as the appointment of mission staff, the granting of privileges and immuni­ties as laid down in the Vienna Convention (1961). International Law stipu­lates a set of special rules concerning the establishment of diplomatic mis­sions, their activity and privileged status. They are intended to provide dip­lomatic missions with favourable conditions in which to perform their functions. After agreement on the exchange of missions, the receiving State is bound either to facilitate the acquisition on its territory, in accordance with its laws, of premises necessary by the sending State for its foreign mission, or to assist the latter in obtaining accommodation in some other way, and, if necessary, to assist missions'in obtaining suitable accommoda­tion for their members.

The order of appointment of diplomatic missions is regulated by the rules of National and International Law. Prior to the appointment of a Head of a mission, the sending State shall obtain the approval of the receiving State to such an appointment through diplomatic channels. Accreditation is the procedure of sending out a diplomatic envoy with credentials to an offi­cial or government of the receiving State and it consists of several stages:

to select a suitable candidate for the post of envoy;

to make a formal application for an agrument;

to issue an act of internal law which authorizes this appointment;

4) to release simultaneously (in two capitals) a communique on this appointment;

5) to deliver credentials;

6) to submit credentials to the Head of the receiving State during the official ceremony.

The sending State may, after it has given due notification to the recei­ving State concerned, accredit a Head of mission or assign any member of the diplomatic staff, as the case may be, to more that one State, unless there are express objections by any of the receiving States.

The new Head of mission is provided by the government with official letters of credence. These letters confer upon the foreign envoy the autho­rity for his mission and determine the bearing of his appointment.

It is the general diplomatic custom that the Ambassador immediately after presentation of credentials sends the Heads of all diplomatic missions, with which his State maintains diplomatic relations and who are accredited in said country, personal notes wherein he informs them of the presentation of his credentials.

Only citizens of Ukraine can be appointed Heads of mission or members of mission staff abroad. The category of a Head of the diplomatic mission of Ukraine in a foreign country is determined by the agreement between Ukraine and said State. Performing his duties an Ambassador or envoy relies on and acts together with the members of the diplomatic staff of the mission. They are also authorized to build, conduct and maintain official relations with foreign states on behalf of their country. In our country The Law of Ukraine on Diplomatic Service (September 20, 2001) is the legal basis for diplomatic service. According to this Law, diplomats are those people who discharge diplomatic or consular functions in Ukraine or abroad and have a corre­sponding diplomatic rank. This Law stipulates the special requirements that people who are appointed to the diplomatic service should have. They must be citizens of Ukraine, have a higher professional education, have appropri­ate professional and business qualities, know both official and foreign lan­guages and be healthy enough to undertake lengthy business trips.

The differentiation of mission staff into three groups (diplomatic staff, administrative and technical staff, service staff) is of great practical impor­tance to diplomatic protocol, as well as to the number of privileges and immunities granted by International Law.

This Chapter also provides insights into a diplomatic corps which exists de facto by virtue of a less rigid application of international custom. The senior officer of a diplomatic corps is the doyen. According to existing tra­dition, he is the Head of one of the accredited diplomatic missions, its first ranking member, and, at the same time, a person who has spent the longest period of time in the receiving State. Most doyen's duties involve matters of protocol. He represents the diplomatic corps, not as the head of an indepen­dent organisation, but as primus inter pares in its relations with the hig­hest-ranking bodies of the receiving State. The doyen also acts as a consultant on local traditions, protocol and etiquette, he helps newly appointed agents, especially Ambassadors or envoys, in their relations with the bodies of the receiving State. To perform his function he is afforded all necessary infor­mation. The doyen of a diplomatic corps must not take any discriminatory action against diplomatic representatives, or give, for whatever reason, se­niority to this or that diplomatic representative, if this may prejudice the seniority of other diplomatic representatives. One of the most important functions of the doyen is to ensure that members of the diplomatic corps use granted privileges and immunities properly.

Differentiating mission staff into three categories, as set forth in the Vienna Convention, is an arbitrary measure as its provisions do not give proper and exact criteria concerning differentiation. Consequently, the at­titudes of accrediting

States towards this problem are rather ambiguous and sometimes even contradictory.

The size of the diplomatic mission is agreed in advance via negotiations on the establishment of diplomatic relations. In the absence of a specific agreement as to the size of the mission, the receiving State may require that the size of the mission should be kept within limits considered by it to be reasonable and normal, taking into consideration circumstances and condi­tions in the receiving State as well as the needs of the particular mission.

The main grounds for the termination of a diplomat's function is his recall by the accrediting State in connection with the expiry of his period of appointment and sometimes for some other reasons: personal, organisatio­nal, family.

The accrediting State can recall the Head or any member of a diplomatic mission at any time without giving reasons for its actions. This often takes place at the time of the deterioration and exacerbation in relations between two countries.

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. The declaration of the Head of mission persona non-grata affects only his person and does not apply to other members of the mission. Other common grounds for the termination of diplomatic functions are: the temporary suspension, termi­nation, or breakdown in diplomatic relations, military conflict between the States, the loss of the status of a subject of in International Law, the extinc­tion or the merging of States.

The fourth Chapter is focussed on diplomatic functions and their means of fulfilment. The author pays attention to the fact that the process of the historical development of society in general has been properly reflected in diplomacy and its main functions. Over this period of time not only have different ways of exercising these functions emerged, but also the scope of their application has been widened. But we should not consider the list of the main functions of the diplomatic mission enumerated in Article 3 of the Vienna Convention on Diplomatic Relations as being exhaustive. Such an assertion would be incorrect, as international relations are continuously developing and as a result bring about the appearance of new diplomatic functions.

The fifth Chapter deals with diplomatic privileges and immunities. At the very beginning the author gives theoretical grounds for diplomatic pri­vileges and immunities based upon three theories: extraterritoriality, repre­sentative and functional necessity. The author focuses on the fact that dip­lomatic privileges and immunities constitute a very important part of Dip­lomatic Law. That is why, a number of Articles in the Vienna Convention (1961) are devoted to this problem. 28 out of 53 Articles (from 20 to 47) of the Convention on Diplomatic Relations deal with diplomatic privileges and immunities. It is also mentioned that Articles 20—28 present details con­cerning diplomatic privileges and immunities granted to diplomatic missions. Correspondingly, Articles 28—38 deal with diplomatic immunities and pri­vileges of a personal nature which are granted to diplomatic agents, mem­bers of their families, members of administrative, technical and service staff. And finally, Articles 39—47 cover issues regarding the duration of diplomatic privileges and immunities, duties of the State concerning diplomatic privileges and immunities in the case of the violation of international relations, armed conflicts, the protection of interests of a third State and of its nationals and also of non-discrimination between States.

In this Chapter the author presents his definition of the term "immuni­ty". He understands it as an exemption of the official missions of a foreign State, their staff and other people enjoying international protection, from the local jurisdiction of a receiving State and the observance with respect to these people the universally recognized principle of inviolability. Immunity has a special function: it helps bodies dealing with international relations and their personnel, exercise their functions freely and without being im­peded. Diplomatic privileges relative to diplomatic immunities are granted in a more limited manner which depends upon the existing legal order in the receiving State.

The sixth Chapter touches upon issues regarding the rights of special missions. The author emphasises that currently the focus of diplomatic ac­tivity has shifted to permanent diplomatic missions. Such a form of diplo­macy as a special diplomatic mission, which is one of the oldest institutions of International Law and, simultaneously, of Diplomatic Law, continues to play a significant role for the subjects of International Law to realize their right to participate in international communications and relations. This form of diplomacy becomes most effective and the only possible way of maintain­ing contacts between States in cases of non-recognition, or the absence of diplomatic or consular relations, and in periods of deterioration and exacer­bation in interstate relations.

According to Article 1 of the Convention, the scope of mission activity is restricted to two States only and no opportunity is provided for multila­teral relations, unlike the status of diplomatic missions sent to the confe­rence which is summoned by the international organization is provided by the Vienna Convention on States Missions in their Relations with Interna­tional Organizations of a Universal Character (1975).

It is common knowledge that special missions differ in their staff, aims and type of activity. That is why they are classified according to particular criteria and, consequently, there are different approaches to these classifi­cations in papers and research on International Law.

The existence of diplomatic or consular relations does not necessarily entail the acceptance or the sending of a special mission. Furthermore, the acceptance or the sending of a special mission are also unconnected with the institute of recognition, which is a necessary legal precondition for establi­shing international relations. It enables States to use this form of diplomacy under any conditions and at the same time States are free from all obliga­tions apart from those provided by the activity of a particular mission.

There is one more important issue as regards the duration of privileges and immunities enjoyed by Heads of missions and staffs of the mission. According to paragraph 1, Article 43 of the Convention every member of a special mission entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving state upon taking up his post, or if already in its territory, from the moment when his appointment is notified to the Ministry of Foreign Affairs or any other ministry as may be agreed. The seventh Chapter analyses Diplomatic Law within international or­ganisations. International intergovernmental organisations are set up by States as a forn. of multilateral cooperation as and when the need arises. Their status as subjects of International Law, their aim, authority and the structure of their bodies as well as other factors, depend on the will of the States involved.

Admittedly, international organisations realise "active and passive rights of Ambassadors" in a slightly different way than States do, but these are conditioned by virtue of their status as subjects of International Law and the limited functional needs of these organisations. Where the activity of international organizations is concerned, State missions to international organisations fall into two groups: permanent and temporary missions. The staff of permanent missions accredited to particular international organiza­tion are almost the same as the staff of permanent diplomatic missions. Temporary missions which are called delegates, experts, etc., are sent ad hoc to participate in the work of the session of an international organisation or its main bodies or conferences convened by said organisation.

States which are not member States to this organisation are allowed to establish permanent missions of observers with a view to providing the mission of the sending State with the protection of its interests within the organization as well as maintaining links with it.

The eighth Chapter is devoted to Consular Law. The author stresses that unlike Diplomatic Law, Consular Law up to the beginning of the XX century existed in the form of Customary Law, which means that it was based on customary rules and national legislation. Modern Consular Law is consi­dered to be Conventional Law as for the years past it has essentially altered scopes of its codification and application.

In modern International Law there is no legal requirement which com­mits States to establish consular relations. But then again, a refusal to es­tablish consular relations contradicts the main principles of International Law. It must be borne in mind that despite the existence of various views as to the necessity of opening a consulate, it is the receiving state that has the final say on this issue. This position is laid down in Article 4 of the Vienna Convention on Consular Relations.

The main principle set forth in the Consular Convention is expressed in the desire to achieve mutual understanding and common consent whilst the interests of both parties are considered.

There are two categories of consular posts: a consulate and an honorary consular representation. They differ radically, not in the scope of their func­tions but in the privileges and immunities which a consulate enjoys.

The structure of a consulate depends on the scope of its tasks and func­tions. Consular career staff do not have an exact classification in Interna­tional Law. That is why the conferring of consular rank is the internal affair of the accrediting State and as such is regulated by its internal legislation.

The official recognition of a consul by the Head of State of the country to which he is assigned is called the exequatur and it has the same function as the delivery of credentials in the diplomatic service. The exequatur autho­rizes the consul to discharge all the functions of his office and serves as the evidence of his official capacity to the local authorities within his consular district.

Bearing in mind that consular activity is many-sided the author presup­poses that it is possible to differentiate the functions of consuls as those that are of a general and a specific nature. It is necessary to emphasise that the list of these functions in the Vienna Convention (1963) is not exhaustive. The Convention says that a consul can exercise other functions charged to him by the sending State. Much deeper consular functions are set forth in the Consular Code of States.

In comparison with diplomatic representatives who enjoy the privileges and immunities of the receiving State independently, either they act pri­vately or exercise their functions officially, consular officials are entitled to privileges and immunities only in the discharge of their functions. That is why such jurisdictional immunity is functional and its duration is limited only to the period that the person exercises their duties.

 

 

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