BY SIMIN E KULUSIKA, Associate Professor
The Daily Nation published (Wednesday, 16. 03.2016, p.17) a press release from the Embassy of the Federal Republic of Germany in Lusaka. The press release was under the authorship of H.E. Ambassador Bernd Finke.
The press release was a response from the German Ambassador to recent waves of assaults on diplomatic agents from Western Europe accredited to the Republic of Zambia for their acceptance of an invitation for luncheon thrown by Mr. Hakainde Hichelema (HH) President of the United Party for National Development (UPND).
The attendance at that luncheon was viewed by some Zambian Commentators as interference in the internal affairs of Zambia. Ambassador Finke’s press release should be seen as a response to those harsh comments.
Ambassador Finke in his press release rejected the claims that by accepting the invitation he or the other diplomats for that matter was interfering in the internal affairs of Zambia.
Ambassador Finke gave reasons for rejecting the allegations. Those who have written condemnatory articles or letters to editors of newspapers on the matter might have read the press release of Ambassador Finke and took a stance on its contents.
This article will not enter directly into the controversy. Its purpose is to set out in brief outline the role of a diplomatic agent (diplomat) in the receiving State, in this case Zambia. Before 1961, diplomatic relations between Sovereign States were based on practice and convention, as evidenced in the works of eminent scholars in international law.
In 1961 a convention was adopted at a conference in Vienna known today as the Vienna Convention on Diplomatic Relations, 1961.
This is the convention which regulates diplomatic relations between States Parties to it.
This article believes that Zambia is a party to this convention and bound by it. The same applies to all countries which have diplomatic agents accredited to the Republic of Zambia.
It is provided in the Vienna Convention on Diplomatic Relations, 1961 (the Convention) that diplomatic relations between States shall be established by mutual consent.
Art. 3 of the Convention stipulated “The establishment of diplomatic relations between States, and of permanent diplomatic missions, takes place by mutual consent.”
This means that the presence of foreign diplomatic missions in Lusaka came about by agreement between Zambia and those foreign countries which have diplomatic missions in Lusaka.
The implications of this agreement are many, but two are cardinal: that the diplomatic agents are free to move in Zambia unless special restrictions apply.
That the diplomatic agents are free to see, to do, and to report, in a legitimate way to their respective countries. In doing these things, diplomatic agents are not obligated to obtain prior written permission from the relevant Ministry. The same applies to Zambian diplomatic agents in the capitals where Zambia has resident diplomatic missions: reciprocity at work.
Under normal circumstances, the establishment of diplomatic relations, and permanent diplomatic missions entails the accreditation of the members of the diplomatic missions, in particular the heads of the diplomatic missions (the Convention, art. 4). A head of a diplomatic mission may be an Ambassador, a High Commissioner, a Nuncio, an Envoy, a Minister, an Internuncio, all accredited to the Head of the State, or Charge d’Affaires accredited to the Minister of Foreign Affairs.
A diplomatic agent (ambassador or High Commissioner, including members of staff) has specific functions in the receiving State (the Convention, art. 3) including: first, representation of the sending State in the receiving State. For that reason the diplomatic mission building and the official residence of the head of the diplomatic mission must hoist the flag of the sending State, and the Head of diplomatic mission must ride in his or her official car while flying the flag of the sending State, evidencing a license and sovereignty. Second, the Convention gives a diplomatic agent the privilege to protect the interests of the sending State and of its citizens in the receiving State.
This can be done if the diplomatic agent is allowed to make contacts with any person within the jurisdiction of the receiving State.
The activities involved are numerous: to attend cultural events anywhere in the country, to accept invitations for whatever functions including luncheons, or receptions, to participate in national events, e.g., Independence Anniversary, and to see to it that nationals of the sending State are not subject to any discriminatory practices contrary to international human rights law, and so on. Three, negotiate with the receiving State on matters of mutual concern.
This also involves contacts with many people in the country. Four, ascertain by all lawful means conditions and developments in the receiving State and to report to the sending State. In order for such a report to be reliable the diplomatic agent needs to make contacts with individuals both in the ruling party and the opposition parties, various organizations and other corporate entities to strengthen the reliability of the report. And attending luncheon is one such means of gathering information on conditions and developments in the receiving State.
Conditions and developments include matters relating to human rights, and the implementation of international conventions dealing with human rights and fundamental freedoms.
Five, a diplomatic agent is to promote friendly relations between the two countries for the benefits of the two peoples. To carry out these various tasks, the diplomatic agent cannot be expected to depend solely on those in power. He or she has to make wide contact with those recognized under the law.
Opposition political parties are recognized and are operating lawfully in the country and contact with them is not a contravention of the law of the land. If the opposition parties are out of bound of normal diplomatic intercourse, the relevant ministry would have brought such matter to the attention of heads of Diplomatic Missions in the receiving State. Such measures would have barred diplomatic agents from attending any event organized by any opposition political party.
The personal contacts of ambassador, such as, acceptance of invitation for breakfast prayer arranged by an opposition party is deemed to foster official contacts by the diplomatic agent. Where a diplomatic agent engages in activ ities that generate profits those activities cannot constitute diplomatic functions. If a diplomatic agent engages in subversive activities against the receiving State, the diplomatic agent would not be performing legitimate diplomatic functions. He or she would lose his or her immunities.
Diplomatic immunities are predicated on the premise that diplomatic functions must be performed as provided for in the Convention. In considering diplomatic relations, related matters, such as, immunities, inviolability of the person of the diplomatic agent and persona non grata must be taken into account. A diplomatic agent enjoys immunities from criminal and civil jurisdictions of the receiving State. He or she is entitled to personal protection, freedom and dignity (Convention, art.29). He or she must respect the laws and regulations of the receiving State (Convention, art.41 (1).
Under the Convention diplomatic agents are prohibited from interfering in the domestic affairs of the receiving State. This prohibition remains controversial. Its boundaries are difficult to define. For example, a diplomatic agent X issued a statement regarding the level of poverty in State S and alleged that sustainable efforts to contain the plight is lacking because the government was preoccupied by internal squabbles.
In an interview with a TV station diplomatic agent Z expressed doubts as to whether the government of State W has the political will to resolve an ethnic conflict in one of its regions that had claimed several lives in the past few months.
A diplomatic agent T claimed that there was persistent pattern of violations of human rights in State Q which could not address the matter due to corruption. Among these three diplomatic agents: X, Z, and T who is interfering in the internal affairs of any of the States mentioned?
If one is not careful, one is bound to be arbitrary in condemning all three or any one of them. But if one measures their utterances by international law standards, one will quietly retire into one’s dark cloister.
The person of a diplomatic agent is inviolable. He or she is not liable to arrest or detention. Any attack on his or her person, freedom or dignity must be prevented.
Even in cases of conspiracy, e.g., plot to assassinate a sovereign, or any political leader, a diplomatic agent cannot be tried or punished by the receiving State. The diplomatic agent can only be expelled.
The expulsion of a diplomatic agent by declaring him or her persona non grata is a delicate practice. One Zambian commentator advocated the expulsion of all the diplomatic agents who partook in the HH’s luncheon.
If that suggestion were accepted and carried out, similar number of Zambian diplomatic agents would have been declared persona non grata as a matter of tit – for – tat.
The recourse to persona non grata is not the best option for dealing with a diplomatic transgression that amounts to criminal acts.
A lesser painful method is for the receiving State to request the sending State to withdraw or recall its unwanted diplomatic envoy.
If the request is not heeded or ignored, the two sides should enter into negotiations to resolve the impasse.
This is considered the least costly of any method of removing a diplomatic agent whose continued stay in the receiving State is no longer tenable. Such a method will prevent retaliatory measures.
The conduct of international relations through the intermediary of diplomatic agents is very sensitive.
It requires patience, tolerance and prudence. Diplomatic agents of today should be trained to conform to or with the provisions of the Vienna Convention on Diplomatic Relations. The main objective of their trade is to cultivate ‘friendly relations between independent nations.’ That is our understanding of the general thrust of the press release of Ambassador Finke.
The Author is an
Associate Professor at