Unit 4.1- Diplomatic functions: Representation Flashcards
Is the diplomatic function national or international?
Diplomatic missions:
National: The diplomatic missions, as organs, they belong to and are integrated in the corresponding internal administrations to exercise external action of the entity they represent.
International: In its sovereign acting in their diplomatic function, nothing prevents them from being considered as an international public service and also organs of international society.
Therefore, in a broad sense, international bodies.
Is the diplomatic function national or international?
Diplomatic agents:
National: For the same reasons, diplomatic agents, as members of the diplomatic staff of a diplomatic mission, whose task is to carry out the diplomatic function by personalizing the activity of the mission, are national officials (or generically, employees or agents).
International: But also, in the broad sense, can be described as international civil servants in the non-institutionalized sphere of international society.
Functions of a diplomatic mission recognized by Vienna Convention 1961 (Art.3)
- Representing the sending State in the receiving State
- 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
- Ascertaining by all lawful means conditions and developments in the receiving State, and reporting thereon to the Government of the sending State
- Promoting friendly relations between the sending State and the receiving State, and developing their economic, cultural and scientific relations
- Nothing in the present Convention shall be construed as preventing the performance of consular functions by a diplomatic mission
Order of the functions of a diplomatic mission recognized by Vienna Convention 1961 (Art.3):
- Representation: the first to be stated, because, in addition to being a function, is a requirement for the existence of diplomacy itself. Without international juridical personality and representation of the subject acting iure imperii, there is no diplomacy.
Therefore, its priority in the order is not due to a hierarchical reason over other functions, but because its exercise is the first consequence of the fulfilment of the requirement of due representativeness. Although there are differing views on this topic.
- Negotiation: is a characteristic of diplomacy as a method of diplomatic activity. Diplomacy, whatever its content or specific task, is negotiation and all diplomatic action is carried out through negotiation.
- Observation and information function: inherent in any diplomatic mission, which is to report not only on its specific actions and results, the situation of the host State and its attitude to bilateral relations and the possibilities for developing mutual relations, as well as its reaction to events with international repercussions.
- Diplomatic protection: not a nuclear because of its specific scope and content. Usually only exercised by permanent diplomacy in the bilateral order, although, exceptionally, it can be exercised -and is in fact exercised through other forms of diplomacy.
- Promotion and development of relations: a concrete function involving actions in specific areas but, in general terms, any diplomatic action must lead to the promotion and development of relations between States.
Limits to consular functions:
- Although amalgamation of diplomatic and consular services is increasingly practised for reasons of economy and effectiveness, the law or practice of the sending State may
prohibit it or may provide that certain functions may be carried out only by diplomatic agents or by consuls; - Most receiving States acquiesce in the performance of consular functions by diplomatic agents, but in a few States this may be prohibited or subjected to restrictions under local law;
- It is generally not necessary for a diplomatic agent to obtain an exequatur (official recognition as a consul) in order to perform consular functions on an occasional or even a regular basis. The names of members of a diplomatic mission exercising consular functions on a regular basis must, however, be notified to the Ministry of Foreign Affairs of the receiving State;
- For the avoidance of any possible difficulty it will usually be preferable that a member of a diplomatic mission who is likely to exercise consular functions on a regular basis is
also given a consular appointment. - A member of a diplomatic mission exercising consular functions without a consular appointment should take into account Article 70.3 of the Vienna Consular Convention. Shift to Consular Immunities: If the diplomat is continuing to serve as a consular officer after the termination of the mission, their status changes. After the reasonable departure period expires, they would no longer have diplomatic immunity but would be entitled to consular immunities under the Vienna Convention on Consular Relations (1963).
- A member of a diplomatic mission exercising consular functions—with or without a concurrent consular appointment — remains entitled to whatever immunities are conferred on him by the Vienna Diplomatic Convention.
Diplomatic representation:
- the presence of a subject of international law, in its foreign relations
- through certain bodies and the people who embody or integrate them (specifically trained)
- to act on behalf of the subject and assume political and international legal commitments with respect to other subjects
Diplomatic representations vs international representation
- Diplomatic representation should not be confused with international representation.
International representation includes three subjects:
1. The represented
2. The representative
3. A third party involved in relations
- Diplomatic representation is direct, without intermediaries, and involves the state’s interests and external relations. Not strict representation but “spokesperson” of the international subject (sending State).
Three aspects of diplomatic representation in modern times:
a) Symbolic aspect, the diplomatic representation symbolizes and makes present the subject whom it represents before the other subjects
b) Political aspect, the diplomatic representation defends, advocates and executes the foreign policy of the represented subject through concrete actions that are entrusted to it or can design the same representation;
c) Legal aspect, the diplomatic representation can make legally binding declarations for the subject on whose behalf acts and assume rights and obligations
Representation: Diplomatic staff:
- They cannot be without a representative character;
- Taking into account the practice, it must be understood that these personnel do not fully represent the subject:
–> only in the symbolic and political aspects,
–> not in the legal aspect, which is the one that empowers to assume rights and obligations attributable to the subject on whose behalf it acts; - Such personnel will symbolically present the State accrediting them, shall advocate and defend its policy, thus being able to participate in, representing it, in the discussion and debate of a negotiation,
- But may not adopt on its behalf-except in partial aspects and, of course, provisionally- a legally binding agreement.
- A text will not be legally binding, if it does not cover legal representation requirement.
Representation: Internal - Central organs: general representation
Stabilized according to the legal order of each State. Organs of the central power endowed with competence for international relations.
- The Head of State
- The Head of Government
- Minister for Foreign Affairs
The Head of State:
- The highest representation and personalized symbol of the State, both at the domestic and international level.
- Status of central body is granted to heads of State, whether or not they have political responsibility, therefore, not only when they are heads of government immediately and duly informed of all the political decisions and of its foreign relations.
- Symbolic and representative status.
Head of Government:
- The Head of the Executive: he/she directs or coordinates the State’s policy, is the highest political authority of the State, and therefore assumes, with full responsibility, the highest representation of the State at home and abroad.
- Symbolic, representative and legal status. Its representation covers, without any limitation, the three aspects of the State.
As a diplomatic body,
- In addition to symbolically making the State present (Symbolic)
- and advocating and defending its foreign policy before other subjects, (Representative)
- Legal status: She/he can assume per se, in compliance with and execution of such policy, political commitments and international legal rights and obligations.
- Due to its status as the central body for foreign relations, the President of the Government does not need full powers to represent his/her State, as recognized by Article 7.2.a) of the Convention on the Law of Treaties.
- The head of government, in the exercise of his functions acting abroad, always commits the State and the latter will be internationally responsible for his actions, even in the case of ‘ultra vires actions’, unless they constitute a manifest violation of a norm of fundamental importance of internal law, as established, with respect to treaties, by article 46 of the 1969 Convention, which, however, in principle, will never be presumed of a head of government.
Minister of Foreign Affairs:
- Coordinates - by virtue of the principle of unity of action abroad - all the activity of the State in its relations with other States and subjects of international law.
- Symbolic, representative and Legal status.
- Scope of its representation of the State has the same characteristics as those just indicated with respect to the head of government, both in relation to its content and to a possible ultra vires action in the exercise of its functions and as regards the lack of need for full powers, due to its status as a central body, in accordance with article 7.2.a) of the Vienna Convention of 1969 on the law of treaties.
Representation. External - Specialized organs: Permanent Diplomatic Missions
- The establishment of diplomatic missions begins once they are physically installed and their activities are initiated. The representative character of a permanent mission begins once it has been physically established in the receiving or host State. This applies either to missions accredited to a State or to an international organization.
- For the head of mission, the official start of their diplomatic functions occurs upon the presentation of their credentials to the relevant authorities. In the case of international organizations, the process is initiated by the presentation of credentials to the organization.
- Diplomatic agents formally begin their roles when they present credentials or cabinet letters, which is a crucial ceremonial step for recognition. Diplomatic agents other than the head of mission formally take up their duties once their accreditation instruments have been delivered and accepted by the receiving State or organization. The representative status for diplomatic activities only takes full effect once formal steps, including the transfer of credentials or their copies, have been completed.
Representation. External - Specialized organs: Permanent Diplomatic Missions
–> Ad hoc diplomacy
Ad hoc diplomacy, i.e. diplomacy that takes place on a temporary basis and to deal with one or more specific issues, can take place both bilaterally, through special missions, and multilaterally, through special missions and particularly delegations to a diplomatic conference - conference diplomacy - or delegations to organs of an international organization - parliamentary diplomacy.
