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A. Skorobahatko LEGAL STATUS OF DIPLOMATIC MISSIONS IN CONDITIONS OF ARMED CONFLICT

UDC: 351.82:338.439.02

LEGAL STATUS OF DIPLOMATIC MISSIONS IN CONDITIONS OF ARMED CONFLICT

A. Skorobahatko

National Aviation University, Institute of International Relations, Ukraine, Kiev

 

International humanitarian law distinguishes two types of armed conflicts, namely: international armed conflicts, opposing two or more States, and non-international armed conflicts, between governmental forces and non-governmental armed groups. A diplomatic mission is a group of people from one state or an international inter-governmental organisation present in another state to represent the sending state/organisation officially in the receiving state. Legal status of diplomatic missions in the case of armed conflict in Ukraine.

Key words: Legal status, international law, diplomatic law, diplomatic missions, armed conflict.

 

The States parties to the 1949 Geneva Conventions have entrusted the ICRC, through the Statutes of the International Red Cross and Red Crescent Movement, " to work for the understanding and dissemination of knowledge of international humanitarian law applicable in armed conflicts and to prepare any development thereof " Statutes of the International Red Cross and Red Crescent Movement, art. 5, para. 2(g) [1]. It is on this basis that the ICRC takes this opportunity to present the prevailing legal opinion on the definition of "international armed conflict" under International Humanitarian Law, the branch of international law which governs armed conflict.

International humanitarian law distinguishes two types of armed conflicts, namely: international armed conflicts, opposing two or more States, and non-international armed conflicts, between governmental forces and non-governmental armed groups, or between such groups only.

Legally speaking, no other type of armed conflict exists. It is nevertheless important to underline that a situation can evolve from one type of armed conflict to another, depending on the facts prevailing at a certain moment.

The International Criminal Tribunal for the former Yugoslavia (ICTY) proposed a general definition of international armed conflict. In the Tadic case, the Tribunal stated that "an armed conflict exists whenever there is a resort to armed force between States" [2]. This definition has been adopted by other international bodies since then.

The doctrine gives useful comments concerning the definition of an international armed conflict. According to D. Schindler, "the existence of an armed conflict within the meaning of Article 2 common to the Geneva Conventions can always be assumed when parts of the armed forces of two States clash with each other. Any kind of use of arms between two States brings the Conventions into effect [3].

A diplomatic mission is a group of people from one state or an international inter-governmental organisation present in another state to represent the sending state/organisation officially in the receiving state. There are resident and non-resident embassies. A permanent diplomatic mission is typically known as an embassy, and the head of the mission is known as an ambassador. The term "embassy" is commonly used also of the building or section of a building in which the work of the diplomatic mission is carried out, but, strictly speaking, it is the diplomatic delegation itself that is the embassy, while the office space is called the chancery. The members of a diplomatic mission can reside within or outside the building that holds the mission's chancery, and their private residences enjoy the same rights as the premises of the mission as regards inviolability and protection.

All missions to the United Nations are known simply as permanent missions, while EU Member States' missions to the European Union are known as permanent representations and the head of such a mission is typically both a permanent representative and an ambassador. European Union missions abroad are known as EU delegations. Some countries have more particular naming for their missions and staff: a Vatican mission is headed by a nuncio (Latin "envoy") and consequently known as an apostolic nunciature.

Missions between Commonwealth countries are known as high commissions and their heads are high commissioners. This is because ambassadors are exchanged between foreign countries, but since the beginning of the Commonwealth, member countries have nominally maintained that they are not foreign to one another (the same reason as the naming of the Foreign and Commonwealth Office). An ambassador represents one head of state to another and an ambassador's letters of credence are addressed by one head of state to another. The senior representative of a Commonwealth country to another was therefore called a high commissioner, accredited not to the head of state but to the government of the receiving country, but at the same time considered the equivalent of an ambassador. Still today, even if two Commonwealth countries have distinct heads of state (monarch or president), each one's senior diplomatic representative to the other continues to be called a high commissioner, whether he or she represents a sending government or a sending head of state.

A consulate is similar to (but not the same as) a diplomatic office, but with focus on dealing with individual persons and businesses, as defined by the Vienna Convention on Consular Relations. A consulate or consulate general is generally a representative of the embassy in locales outside of the capital city. For instance, the United Kingdom has its Embassy of the United Kingdom in Washington, D.C., but also maintains seven consulates-general and four consulates elsewhere in the US. The person in charge of a consulate or consulate-general is known as a consul or consul-general, respectively. Similar services may also be provided at the embassy (to serve the region of the capital) in what is normally called a consular section.

In cases of dispute, it is common for a country to recall its head of mission as a sign of its displeasure. This is less drastic than cutting diplomatic relations completely, and the mission will still continue operating more or less normally, but it will now be headed by a chargé d'affaires (usually the deputy chief of mission) who may have limited powers. A chargé d'affaires ad interim also heads the mission during the interim between the end of one chief of mission's term and the beginning of another.

"The functions of a diplomatic mission consist, inter alia, in 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".

The rights and immunities (such as diplomatic immunity) of diplomatic missions are codified in the Vienna Convention on Diplomatic Relations of April 18, 1961, the Vienna Convention on Consular Relations of April 24, 1963 [4,5]

Diplomacy (from the Greek δίπλωμα, meaning making a deal with other countries) is the art and practice of conducting negotiations between representatives of states. It usually refers to international diplomacy, the conduct of international relations through the intercession of professional diplomats with regard to issues of peace-making, trade, war, economics, culture, environment, and human rights.

As for Ukraine, 77 embassies of foreign states, 18 representations of international organizations, the Delegation of the European Union, one international regional organization (GUAM), one intergovernmental organization, two monitoring missions and one advisory mission (total number - 101 institutions) are accredited in Ukraine [6].

Legal status of diplomatic missions in the case of armed conflict in Ukraine is formed on the actual diplomatic relations with Russia. There are no ambassadors, diplomats not of the first rank work in embassies. There are two legal formats such as:

- Normandy format (French: Format Normandie), also known as the Normandy contact group, or the Normandy Four, is a diplomatic group of senior representatives of the four countries (Germany, Russia, Ukraine and France) to resolve the war in Eastern Ukraine;

- Minsk format. At a summit in Minsk on 11 February 2015, the leaders of Ukraine, Russia, France, and Germany agreed to a package of measures to alleviate the ongoing war in eastern Ukraine [7].

Thus, the main tasks for Ukraine are: the formation of the agenda of the work of the UN Security Council and other, the pressure on Russia to take into account human rights violations through the activities of the diplomatic missions of Ukraine in international organizations.

References:

  1. Statutes of the International Red Cross and Red Crescent Movement. Retrieved from https://www.icrc.org/eng/assets/files/other/statutes-en-a5.pdf [In English].
  2. ICTY, The Prosecutor v. Dusko Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, IT-94-1-A, 2 October 1995, para. 70

[In English].

  1. D. Schindler, The different Types of Armed Conflicts According to the Geneva Conventions and Protocols, RCADI, Vol. 163, 1979-II, p. 131 [In English].
  2. Vienna Convention on Diplomatic Relations of April 18, 1961 Retrieved from http://legal.un.org/ilc/texts/instruments/english/conventions/9_1_1961. pdf [In English].
  3. Vienna Convention on Consular Relations of April 24, 1963 Retrieved from http://legal.un.org/ilc/texts/instruments/english/conventions/9_2_1963. pdf [In English].
  4. Ministry of Foreign Affairs of Ukraine Retrieved from https://mfa.gov.ua/ua/protocol-info/dip-corps [In English].
  5. Normandy format / Minsk format https://www.ukrinform.ua/tag-normandska-cetvirka [In English].

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