The 1961 Vienna Convention on Diplomatic Relations and its impact as Russia declares war with Ukraine.

It has long been the belief of many who work in peace processes that diplomacy is the “only guarantee of lasting peace”[1] and that “In a world of complex threats, our security and leadership depends on all our power – including strong and principled diplomacy.[2]” As part of this idea, accredited officials (in this case, ambassadors and senior officials)  often act as accredited officials who conduct diplomacy through foreign affairs offices. The functions of these diplomatic missions 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;

(c) 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.[3]

Diplomatic relations have been regulated by the 1961 Vienna Convention on Diplomatic Relations. It was the aim of the Vienna Convention on Diplomatic Relations to provide a “complete framework for the establishment, maintenance and termination of diplomatic relations on a basis of consent between independent sovereign States.”[4] The purpose, as per the preamble of the Convention, is “not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States.” Until this point, the convention itself has seen very few attacks, as the rules have been widely accepted and implemented[5]. Its use has been very important since its inauguration. It is once again coming into the spotlight since the news on March 29th, 2022 that Ireland expelled the Russian Ambassador to Ireland and four senior officials.[6]

In a Statement by the Minister for Foreign Affairs, they stated that the expulsion of these Russian officials was being taken under Article 9 of the 1961 Vienna Convention on Diplomatic Relations.  Article 9 of the 1961 Vienna Convention on Diplomatic Relations declares that a “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 Statement declared that actions taken by the Russian agents had not been done in accordance with international standards of diplomatic behaviour.[7] It is interesting to note that the strong Russian response called this decision “arbitrary” and “groundless.”[8] However, as per Article 9, Ireland need not explain their decision in any case.

The Act of using Article 9 and the expulsion of diplomatic agents is considered to be “the ultimate sanction” against diplomatic missions.[9] The International Court of Justice held that using Article 9 is a “radical remedy” in cases where “abuses of their functions by members of a mission reach serious proportions. This is the power which every receiving State has at its own discretion, to break off diplomatic relations with a sending State and to call for the immediate closure of the offending mission.”[10]

Ireland was not alone in this decision to use Article 9. On the same day, the Netherlands, Belgium and the Czech Republic also announced major expulsions of Russian diplomats.

The Netherlands have expelled 17 of their 75 Russian diplomats. According to their Ministry, their reasoning is that information from the AIVD and MIVD shows that “the individuals in question, accredited as diplomats at the Russian representations in the Netherlands, are secretly active as intelligence officers." The Dutch Foreign Minister claimed that they “made this decision for the sake of Dutch security.”[11]

Belgium expelled 21 Russian diplomats who, according to Foreign Minister Sophie Wilmes, threatened national security. The reasoning was similar to that of the Netherlands; And similar to Ireland, Belgium also stressed that they wished for their “diplomatic channels [to] remain open with Russia; The Russian embassy can continue to operate.”[12] Indeed, the Belgian minister said that the decision to expel the diplomats was taken in coordination with like-minded countries.

On Twitter, the Czech Ministry of Foreign Affairs announced that “one of its diplomatic staff had been declared persona non grata and was requested to leave Czechia within 72 hours.” They also hinted that this act comes as a consequence of the actions of Ireland, the Netherlands and Belgium: “Together with our Allies, we are reducing the Russian intelligence presence in the EU.”[13]

The Vienna Convention continues to extend many rights on to these Russian ambassadors and officials up until their deadline by which they should have left the country.
As per Article 22, “the premises of the mission shall be inviolable.” Furthermore, the receiving state is under a special duty to “protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.”[14] This is particularly important currently as we see attacks on Russian diplomatic buildings. It raises important questions as to the legality of the attacks on the Russian Embassies which have been smeared with red paint, and been driven into[15]
As per Article 29 of the Vienna Convention, these diplomatic agents should not be subject to any form of arrent or detention. Therefore, these diplomatic agents must leave their receiving state within the time period specified in order to continue their protection from “any attack on his person, freedom or dignity.”[16] Similarly, as per Article 31, these diplomatic agents “shall enjoy immunity from the criminal jurisdiction of the receiving state.”[17] This does not mean that enjoy total immunity, but that they not liable in their receiving state. As Lord Hewart CJ said in Dickinson v Del Solar, “Diplomatic agents are not, in virtue of their privileges as such, immune from legal liability for any wrongful acts. The accurate statement is that they are not liable to be sued in the English courts unless they submit to the jurisdiction.”[18] Therefore, and as per United Stated Diplomatic Staff in Tehran, it is possible that any further investigation into the “activities [which] have not been in accordance with international standards of diplomatic behaviour” would mark a “grave breach of Article 31.1 of the Convention” if it was “the intention to submit the hostages to any form of criminal trial or investigation.”[19]

The obligations imposed by the Vienna Convention are “not merely contractual… but also obligations under general international law.”[20] In the past, issues regarding the practice of foreign ministries in foreign states were often settled in the spirit of resolution. This, however, is different as tensions with Russia reach a new “low-point” and a Humanitarian Crisis is a huge issue in the world today.[21] Therefore, the Vienna Convention has an essential role to play as Russia commit to not letting these expulsions “go unanswered.”[22] It is important that countries act in a manner which is compatible with the Convention in order to avoid sanctions and to promote peace throughout the world.

[1] Martin McGuinness, ‘The Annual Peace Lecture’ (Speech at Warrington, 18 September 2013).

[2] The White House Office of the Press Secretary, ‘President Barack Obama's State of the Union Address’ (2014)
https://obamawhitehouse.archives.gov/the-press-office/2014/01/28/president-barack-obamas-state-union-address

[3] Vienna Convention on Diplomatic Relations, (adopted 18 April 1961) United Nations, Treaty series, vol.500 p. 95.

[4] Eileen Denza, ‘Vienna Convention on Diplomatic Relations,’ (United Nations Audio-visual Library of International Law, United Nations 2009) 3

[5] Eileen Denza, ‘Vienna Convention on Diplomatic Relations,’ (United Nations Audio-visual Library of International Law, United Nations 2009) 1

[6] Department of Foreign Affairs, ‘Statement by the Minister for Foreign Affairs’ (2022)

 https://www.dfa.ie/news-and-media/press-releases/press-release-archive/2022/march/statement-by-the-minister-for-foreign-affairs.php

[7] Vienna Convention on Diplomatic Relations, (adopted 18 April 1961) United Nations, Treaty series, vol.500 Article 9

[8] Press Release of the Embassy of the Russian Federation In Ireland (2022) Dublin.

[9] J. Brown, “Diplomatic Immunity: State Practice under the Vienna Convention on Diplomatic Relations” (1988) International and Comparative Law Quarterly, vol. 37, 88.

[10] Case Concerning United States Diplomatic And Consular Staff In Tehran 4. [1980] I.C.J. Rep

[11] Marine Strauss  ‘Netherlands extradites 17 Russian intelligence agents’ Reuters (Europe, 29 March 2022)

<https://www.reuters.com/world/europe/netherlands-extradites-17-russian-intelligence-agents-2022-03-29/>

[12] Lisa Kim, ‘4 European Countries Expel Russian Diplomats—With Some Citing National Security Threats’ (29 March 2022)
<https://www.forbes.com/sites/lisakim/2022/03/29/4-european-countries-expel-russian-diplomats-with-some-citing-national-security-threats/?sh=2fe5983724c7>

[13] Czech Ministry of Foreign Affairs, Declaration of expulsion of Russian Ambassadors, Twitter, 29 March 2022.
<https://twitter.com/CzechMFA/status/1508811502169513993?ref_src=twsrc%5Egoogle%7Ctwcamp%5Eserp%7Ctwgr%5Etweet>

[14] Vienna Convention on Diplomatic Relations, (adopted 18 April 1961) United Nations, Treaty series, vol.500 Article 22

[15] Conor Gallagher ‘Protective barriers erected at Russian embassy after truck drives through gates’ The Irish Times (Dublin, 7 March 2022)

[16] Vienna Convention on Diplomatic Relations, (adopted 18 April 1961) United Nations, Treaty series, vol.500 Article 29

[17] Vienna Convention on Diplomatic Relations, (adopted 18 April 1961) United Nations, Treaty series, vol.500 Article 31

[18] Dickinson V. Del Solar (Mobile & General Insurance Company, Ltd., Third Parties).(1929) 34 Ll.L.Rep. 445

[19] Vienna Convention on Diplomatic Relations, Vienna, 18 April 1961, United Nations, Treaty series, vol.500 p. 95. Article 31

[20] Case Concerning United States Diplomatic And Consular Staff In Tehran 4. [1980] I.C.J. Rep

[21] Simon Carswell, Conor Gallagher, ‘Expulsion of Russian diplomats marks low-point in Irish relations with Moscow’ The Irish Times(29 March 2022)

[22] Press Release of the Embassy of the Russian Federation In Ireland, (Dublin, 29 March 2022)