For advocates of human rights regimes, it’s a no brainer that the promotion of human rights as a norm in international law trumps the Vienna Convention on Diplomatic Relations. For security analysts, strategy theorists and international practitioners, not so much: the VCDR is a backbone of stability and security in communication and negotiation between states.
So which holds more weight?
There is little case law on Diplomatic immunity v. Human Rights but currently, the preference is to hold that diplomatic immunity is not a substantive issue, but puts in place a procedural bar from progressing cases to merits. A comprehensive study of state practice towards the doctrine of non-interference in diplomacy was published by Behrens in The British Yearbook of International Law in 2011, and identified that the principle of proportionality seemed to be adopted by state practice on the choice to reprimand interfering diplomats.
|The Embassy of the Netherlands in Zimbabwe comments on
Human Rights via a satirical Embassy Cat
This is not a thorough examination of the development of Article 41 of the VCDR, but rather intended as a thought experiment: Could it be that within the VCDR there is a hierarchy of articles, based on the object and purpose of that treaty? And, if so, could it be possible that the primary function of the mission, to represent the sending state (Art. 3.1a), is paramount?
Certainly in modern diplomacy this function of the diplomatic mission to communicate the view of the sending state has become even more primary than the simple representation and negotiation that it was envisaged for? But even so, this highlights a key issue: the VCDR was not formed with the intention of protecting individual or general human rights, but as an instrument of peace and security.
However, the number of states engaged in the promotion of human rights in hostile or resistant receiving states is high. This may not be high enough to suggest a customary trend, but there is certainly safety in numbers and the sheer magnitude of the practice suggests that it will not face any bold challenge soon.
Further, both the human rights advocate and the security analyst have strong arguments for their view fitting with the original intention of immunity within the treaty: the free speech of sovereign states and their representatives in the international community.
So will the magnitude of states practising the advocacy of human rights via their diplomatic missions create a push for the courts to qualify diplomatic non-interference? Or perhaps the magnitude of the potential consequences of a challenge to traditional diplomacy are too great. The reality though, suggests that it will be a long, tense war of practices before an issue of interference becomes the subject of court or tribunal proceedings with any magnitude at all.
This article draws upon conference papers presented at ’50 years of the Vienna Convention on Diplomatic Relations’ hosted by the Edinburgh University School of Law and Dr Paul Behrens in 2014. These papers include Dr. Naomi Burke (Volterra Fietta), Sanderijn Duquet (KU Leuven), and Dr. Paul Behrens (University of Edinburgh).
Behrens, P. (2012). Diplomatic Interference and Competing Interests in International Law. British Yearbook of International Law, p.008.