Diplomatic and consular law: Difference between revisions

From International cyber law: interactive toolkit
Jump to navigation Jump to search
Content added Content deleted
VisualWikitext
(editing references)
 
(8 intermediate revisions by 6 users not shown)
Line 7: Line 7:
{| class="wikitable mw-collapsible" style="background-color:#ffffcc;"
{| class="wikitable mw-collapsible" style="background-color:#ffffcc;"
|-
|-
! scope="col" style="background-color:#ffffaa;" | Inviolability of documents and archives of diplomatic missions and consular posts
! scope="col" style="background-color:#ffffaa;" | [[Diplomatic and consular law#Inviolability of documents and archives of diplomatic missions and consular posts|Inviolability of documents and archives of diplomatic missions and consular posts]]
|-
|-
|[[File:Maki-embassy-15.svg|left|frameless|200x200px]]Diplomatic and consular law protects the inviolability of documents and archives of diplomatic missions and consular posts.<ref>Art. 24 VCDR; Art. 33 VCCR.</ref> This includes any official correspondence, whether in electronic or paper form.<ref>[https://doi.org/10.1017/9781316822524 Tallinn Manual 2.0], commentary to rule 41, para 3. </ref> The international legal obligation to respect inviolability is unaffected by the frequent practice of States to conduct cyber espionage operations that violate this duty. This is because any such practice is regularly condemned by the victim States, whereas the offending States refrain from putting forward any corresponding legal justification of such operations.<ref>[https://doi.org/10.1017/9781316822524 Tallinn Manual 2.0], commentary to rule 41, para. 11.</ref>
|[[File:Inviolability of documents and archives of diplomatic missions and consular posts.svg|alt=|left|frameless|200x200px]]Diplomatic and consular law protects the inviolability of documents and archives of diplomatic missions and consular posts.<ref>Art 24 [http://legal.un.org/ilc/texts/instruments/english/conventions/9_1_1961.pdf VCDR]; Art 33 [http://legal.un.org/ilc/texts/instruments/english/conventions/9_2_1963.pdf VCCR].</ref> This includes any official correspondence, whether in electronic or paper form.<ref>[https://doi.org/10.1017/9781316822524 Tallinn Manual 2.0], commentary to rule 41, para 3. </ref> The international legal obligation to respect inviolability is unaffected by the frequent practice of States to conduct cyber espionage operations that violate this duty. This is because any such practice is regularly condemned by the victim States, whereas the offending States refrain from putting forward any corresponding legal justification of such operations.<ref>[https://doi.org/10.1017/9781316822524 Tallinn Manual 2.0], commentary to rule 41, para. 11. However, commentary to rule 41, para. 8, notices that the Experts were divided on whether the duty to respect the inviolability over archives or material at rest on private servers as opposed to transit lies upon all States and not only the receiving State. </ref>
|}<section end=Inviolability/>
|}<section end=Inviolability/>


Line 16: Line 16:
{| class="wikitable mw-collapsible" style="background-color:#ffffcc;"
{| class="wikitable mw-collapsible" style="background-color:#ffffcc;"
|-
|-
! scope="col" style="background-color:#ffffaa;" | Premises of the mission
! scope="col" style="background-color:#ffffaa;" | [[Diplomatic and consular law#Premises of the mission|Premises of the mission]]
|-
|-
|[[File:Maki-building-15.svg|left|frameless|200x200px]]Article 41 of the Vienna Convention on Diplomatic Relations (VCDR) provides that “it is the duty of all persons enjoying [privileges and immunities according to the Convention] to respect the laws and regulations of the receiving State”.<ref>Art. 41 (1) VCDR.</ref> In addition, it prohibits the premises of the mission from being used “in any manner incompatible with the functions of the mission” as these are laid down by the VCDR or in any other relevant international legal rules.<ref>Art. 41 (3) VCDR.</ref> In this regard, the VCDR specifically notes that legitimate functions of the mission include “[a]scertaining by all lawful means conditions and developments in the receiving State, and reporting thereon to the Government of the sending State”.<ref>Art. 31 (1) (d) VCDR.</ref> This formulation thus legitimates the gathering of intelligence as long as it is conducted in a manner compatible with the domestic law of the receiving State. By contrast, most States criminalize espionage under their domestic law,<ref>See, eg, UK, Official Secrets Act 1911, s. 1; US, 18 USC §792–799.</ref> and therefore conduct that falls under such domestic prohibitions will also constitute a violation of Article 41 of the VCDR.<ref>Cf. D Pun, ‘Rethinking Espionage in the Modern Era’ (2017) 18 Chicago JIL 353, 368; see also ICJ, <i>United States Diplomatic and Consular Staff in Tehran</i> [1980] ICJ Rep 3, 39–40 [84]–[85] (describing espionage as an abuse of diplomatic functions under the VCDR).</ref>
|[[File:Premises of the mission.svg|alt=|left|frameless|200x200px]]Article 41 of the Vienna Convention on Diplomatic Relations (VCDR) provides that “it is the duty of all persons enjoying [privileges and immunities according to the Convention] to respect the laws and regulations of the receiving State”.<ref>Art 41 (1) [http://legal.un.org/ilc/texts/instruments/english/conventions/9_1_1961.pdf VCDR].</ref> In addition, it prohibits the premises of the mission from being used “in any manner incompatible with the functions of the mission” as these are laid down by the VCDR or in any other relevant international legal rules.<ref>Art 41 (3) [http://legal.un.org/ilc/texts/instruments/english/conventions/9_1_1961.pdf VCDR].</ref> In this regard, the VCDR specifically notes that legitimate functions of the mission include “[a]scertaining by all lawful means conditions and developments in the receiving State, and reporting thereon to the Government of the sending State”.<ref>Art 31 (1) (d) [http://legal.un.org/ilc/texts/instruments/english/conventions/9_1_1961.pdf VCDR].</ref> This formulation thus legitimates the gathering of intelligence as long as it is conducted in a manner compatible with the domestic law of the receiving State. By contrast, most States criminalize espionage, including economic espionage, under their domestic law,<ref>See, UK, Official Secrets Act 1911, s 1; US, 18 USC §792–799.</ref> and therefore conduct that falls under such domestic prohibitions will also constitute a violation of Article 41 of the VCDR.<ref>Cf. Darien Pun, ‘Rethinking Espionage in the Modern Era’ (2017) 18 Chicago JIL 353, 368; see also ICJ, <i>United States Diplomatic and Consular Staff in Tehran</i> [1980] ICJ Rep 3, 39–40 [84]–[85] (describing espionage as an abuse of diplomatic functions under the VCDR).</ref>
|}<section end=Premises/>
|}<section end=Premises/>


Line 25: Line 25:
{| class="wikitable mw-collapsible" style="background-color:#ffffcc;"
{| class="wikitable mw-collapsible" style="background-color:#ffffcc;"
|-
|-
! scope="col" style="background-color:#ffffaa;" | Persona non grata
! scope="col" style="background-color:#ffffaa;" | [[Diplomatic and consular law#Persona non grata|Persona non grata]]
|-
|-
|[[File:Maki-fence-15.svg|left|frameless|200x200px]]Apart from primary rules which can be violated by the sending State’s conduct, the Vienna Convention on Diplomatic Relations also applies to the response of the receiving State. The sending State’s diplomats in the receiving State enjoy an immunity from the criminal jurisdiction of the receiving State.<ref>Art. 31 (1) VCDR.</ref> When they are declared <i>personae non gratae</i>, the sending State has to recall them or terminate their functions.<ref>Art. 9 (1) VCDR.</ref> Declaring <i>personae non gratae</i> those diplomats who were suspect of other activities against the interests of the receiving State without strong evidence is also lawful, since the receiving State's decision is fully discretionary and it does not need to provide any reasons.<ref>J D’Aspremont, ‘[http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e974 Persona Non Grata]’, in R Wolfrum (ed), <i>Max Planck Encyclopedia of Public International Law</i> (OUP 2008) (updated January 2009): “Given that the reasons need not be given by the receiving State when declaring a diplomatic or consular agent of the sending State persona non grata, the declaration of a diplomatic agent as persona non grata is utterly discretionary. The receiving State may thus make use of it for various reasons, whether for the behaviour of the agent himself or due to the actions of the sending State.”</ref>
|[[File:Persona non grata.svg|alt=|left|frameless|200x200px]]Apart from primary rules which can be violated by the sending State’s conduct, the Vienna Convention on Diplomatic Relations also applies to the response of the receiving State. The sending State’s diplomats in the receiving State enjoy an immunity from the criminal jurisdiction of the receiving State.<ref>Art 31 (1) [http://legal.un.org/ilc/texts/instruments/english/conventions/9_1_1961.pdf VCDR].</ref> When they are declared <i>personae non gratae</i>, the sending State has to recall them or terminate their functions.<ref>Art 9 (1) [http://legal.un.org/ilc/texts/instruments/english/conventions/9_1_1961.pdf VCDR].</ref> Declaring <i>personae non gratae</i> those diplomats who were suspect of other activities against the interests of the receiving State without strong evidence is also lawful, since the receiving State's decision is fully discretionary and it does not need to provide any reasons.<ref>Jean D’Aspremont, ‘[http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e974 Persona Non Grata]’, in Rudiger Wolfrum (ed), <i>Max Planck Encyclopedia of Public International Law</i> (OUP 2008) (updated January 2009): “Given that the reasons need not be given by the receiving State when declaring a diplomatic or consular agent of the sending State persona non grata, the declaration of a diplomatic agent as persona non grata is utterly discretionary. The receiving State may thus make use of it for various reasons, whether for the behaviour of the agent himself or due to the actions of the sending State.”</ref>


The declaration as <i>persona non grata</i> is a specific remedy under the VCDR.<ref>[https://www.icj-cij.org/files/case-related/64/064-19800524-JUD-01-00-EN.pdf <i>United States Diplomatic and Consular Staff in Tehran</i>], United States v Iran, Judgment, ICGJ 124 (ICJ 1980), 24 May 1980, paragraph 85.</ref> However, this remedy is not the only one available; if the sending State's operation amounts to an internationally wrongful act, the receiving State could possibly invoke [[countermeasures]] in its response.<ref>J D’Aspremont, ‘[http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e974 Persona Non Grata]’, in R Wolfrum (ed), <i>Max Planck Encyclopedia of Public International Law</i> (OUP 2008) (updated January 2009), para. 16.</ref>
The declaration as <i>persona non grata</i> is a specific remedy under the VCDR.<ref>[https://www.icj-cij.org/files/case-related/64/064-19800524-JUD-01-00-EN.pdf <i>United States Diplomatic and Consular Staff in Tehran</i>], United States v Iran, Judgment, ICGJ 124 (ICJ 1980), 24 May 1980, paragraph 85.</ref> However, this remedy is not the only one available; if the sending State's operation amounts to an internationally wrongful act, the receiving State could possibly invoke [[countermeasures]] in its response.<ref>Jean D’Aspremont, ‘[http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e974 Persona Non Grata]’, in Rudiger Wolfrum (ed), <i>Max Planck Encyclopedia of Public International Law</i> (OUP 2008) (updated January 2009), para. 16.</ref>
|}<section end=PNG/>
|}<section end=PNG/>

== National positions ==

=== [[National position of Austria (2024)|Austria (2024)]] ===
{{#lst:National position of Austria (2024)|AUT_2024 diplomatic and consular law }}


== Appendixes ==
== Appendixes ==


=== See also ===
=== See also ===
* [[Scenario 02: Cyber espionage against government departments]]
* [[Scenario 09: Economic cyber espionage]]


=== Notes and references ===
=== Notes and references ===

Latest revision as of 06:47, 17 June 2024

Overview[edit | edit source]

The Vienna Convention on Diplomatic Relations and the Vienna Convention on Consular Relations are considered to be broadly reflective of customary international law.[1] Therefore, even if a State had not ratified these Conventions, the rules analysed below would still apply to its diplomatic and consular relations.

Inviolability of documents and archives of diplomatic missions and consular posts[edit | edit source]

Inviolability of documents and archives of diplomatic missions and consular posts
Diplomatic and consular law protects the inviolability of documents and archives of diplomatic missions and consular posts.[2] This includes any official correspondence, whether in electronic or paper form.[3] The international legal obligation to respect inviolability is unaffected by the frequent practice of States to conduct cyber espionage operations that violate this duty. This is because any such practice is regularly condemned by the victim States, whereas the offending States refrain from putting forward any corresponding legal justification of such operations.[4]

Premises of the mission[edit | edit source]

Premises of the mission
Article 41 of the Vienna Convention on Diplomatic Relations (VCDR) provides that “it is the duty of all persons enjoying [privileges and immunities according to the Convention] to respect the laws and regulations of the receiving State”.[5] In addition, it prohibits the premises of the mission from being used “in any manner incompatible with the functions of the mission” as these are laid down by the VCDR or in any other relevant international legal rules.[6] In this regard, the VCDR specifically notes that legitimate functions of the mission include “[a]scertaining by all lawful means conditions and developments in the receiving State, and reporting thereon to the Government of the sending State”.[7] This formulation thus legitimates the gathering of intelligence as long as it is conducted in a manner compatible with the domestic law of the receiving State. By contrast, most States criminalize espionage, including economic espionage, under their domestic law,[8] and therefore conduct that falls under such domestic prohibitions will also constitute a violation of Article 41 of the VCDR.[9]

Persona non grata[edit | edit source]

Persona non grata
Apart from primary rules which can be violated by the sending State’s conduct, the Vienna Convention on Diplomatic Relations also applies to the response of the receiving State. The sending State’s diplomats in the receiving State enjoy an immunity from the criminal jurisdiction of the receiving State.[10] When they are declared personae non gratae, the sending State has to recall them or terminate their functions.[11] Declaring personae non gratae those diplomats who were suspect of other activities against the interests of the receiving State without strong evidence is also lawful, since the receiving State's decision is fully discretionary and it does not need to provide any reasons.[12]

The declaration as persona non grata is a specific remedy under the VCDR.[13] However, this remedy is not the only one available; if the sending State's operation amounts to an internationally wrongful act, the receiving State could possibly invoke countermeasures in its response.[14]

National positions[edit | edit source]

Austria (2024)[edit | edit source]

Key Positions
"ICT infrastructure on the premises of a diplomatic or consular mission, a “data embassy”, or the seat of an international organisation (IO), enjoys inviolability.

Archives, documents and official correspondence of a diplomatic or consular mission, or an IO, that are in electronic form are inviolable. Diplomatic and consular missions, as well as IOs (subject to the provisions of their headquarters agreements) must not engage in cyber activities contrary to the laws and regulations of the receiving state, including espionage activities, and must not interfere in the internal affairs of that state. In addition, their premises must not be used to engage in cyber activities that are incompatible with their functions."[15]

"Diplomatic and consular missions enjoy inviolability of their premises under customary international law, as codified in the Vienna Convention on Diplomatic Relations (VCDR), and the Vienna Convention on Consular Relations (VCCR), respectively. The premises of a mission are inviolable and must not be entered by agents of the host state except with consent by the head of mission. In addition, any property located within the mission – including ICT infrastructure – is immune from search, requisition, attachment or execution. This means that also remote access to the ICT infrastructure located within the mission without express consent is prohibited.

Moreover, archives and documents, as well as official correspondence of the mission, also in electronic form, are inviolable wherever they are located. Furthermore, the receiving state has a duty to permit free communication on the part of the mission for all purposes.

It is the duty of all persons enjoying privileges and immunities to respect the laws and regulations of the receiving State and not to interfere in the internal affairs of that State. In addition, the premises of the mission must not be used in a manner incompatible with the functions of the mission, or with other rules of general international law or any special agreements in force between the sending and the receiving State. In the cyber context, this also means that persons enjoying privileges and immunities must not engage in unlawful surveillance or espionage activities in the receiving state, and the premises of the mission must also not be used for such purposes.

The receiving state has the duty to take all appropriate steps to protect the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity. Thus, a state that becomes aware of a malicious cyber activity against a diplomatic or consular mission in its territory, has to take all appropriate steps to protect the mission from such an activity."[16]


International Organisations

"Similar rights and obligations apply in the context of IOs, to the extent they are specified in the headquarters agreements between the host state and the IO. The premises of the IO are inviolable and shall not be entered by agents of the host state, except with the consent of the head of the IO. This also entails that remote access to the ICT infrastructure within the premises of the IO is prohibited.

All officials of IOs and state representatives have a duty to respect the laws and regulations of the host state and not to interfere in the internal affairs of that state. This means that these persons must not engage in unlawful surveillance or espionage activities in the host state, and the premises of the IO must not be used for such purposes.

Host states also have a duty to protect the premises of the IO from outside disturbances or unauthorized entry. Thus, if a state becomes aware of a malicious cyber activity against an IO situated on its territory, it has to take all appropriate steps to protect the IO from such an activity. In this regard, Austria is working closely with IOs situated on its territory."[17]


Data Embassies

"In some cases, ICT infrastructure may enjoy inviolability under treaty or customary international law as applicable. Recently, some states and IOs have concluded agreements with other states which enable a state (i.e. the sending state) or an IO to store or process data in the territory of another state (i.e. the receiving state). It is important to note that such bilateral agreements are only binding upon the parties involved, and not on third parties.

However, a cyber activity that causes the destruction of governmental data in the data embassy of state A in the territory of state B, may be considered a violation of sovereignty of both state A and state B."[18]

Appendixes[edit | edit source]

See also[edit | edit source]

Notes and references[edit | edit source]

  1. ↑ See, for example, J Wouters, S Duquet, and K Meuwissen, “The Vienna Conventions on Diplomatic and Consular Relations” in AF Cooper, J Heine, and R Thakur (eds), The Oxford Handbook of Modern Diplomacy (OUP 2013) 510 (noting that VCDR’s and VCCR’s main provisions have acquired customary status); ICJ, United States Diplomatic and Consular Staff in Tehran [1980] ICJ Rep 3, 31–32 [62] (noting that the relevant obligations under the two treaties are “also obligations under general international law”).
  2. ↑ Art 24 VCDR; Art 33 VCCR.
  3. ↑ Tallinn Manual 2.0, commentary to rule 41, para 3.
  4. ↑ Tallinn Manual 2.0, commentary to rule 41, para. 11. However, commentary to rule 41, para. 8, notices that the Experts were divided on whether the duty to respect the inviolability over archives or material at rest on private servers as opposed to transit lies upon all States and not only the receiving State.
  5. ↑ Art 41 (1) VCDR.
  6. ↑ Art 41 (3) VCDR.
  7. ↑ Art 31 (1) (d) VCDR.
  8. ↑ See, UK, Official Secrets Act 1911, s 1; US, 18 USC §792–799.
  9. ↑ Cf. Darien Pun, ‘Rethinking Espionage in the Modern Era’ (2017) 18 Chicago JIL 353, 368; see also ICJ, United States Diplomatic and Consular Staff in Tehran [1980] ICJ Rep 3, 39–40 [84]–[85] (describing espionage as an abuse of diplomatic functions under the VCDR).
  10. ↑ Art 31 (1) VCDR.
  11. ↑ Art 9 (1) VCDR.
  12. ↑ Jean D’Aspremont, ‘Persona Non Grata’, in Rudiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (OUP 2008) (updated January 2009): “Given that the reasons need not be given by the receiving State when declaring a diplomatic or consular agent of the sending State persona non grata, the declaration of a diplomatic agent as persona non grata is utterly discretionary. The receiving State may thus make use of it for various reasons, whether for the behaviour of the agent himself or due to the actions of the sending State.”
  13. ↑ United States Diplomatic and Consular Staff in Tehran, United States v Iran, Judgment, ICGJ 124 (ICJ 1980), 24 May 1980, paragraph 85.
  14. ↑ Jean D’Aspremont, ‘Persona Non Grata’, in Rudiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (OUP 2008) (updated January 2009), para. 16.
  15. ↑ Austrian Position on Cyber Activities and International Law (April 2024) p. 13.
  16. ↑ Austrian Position on Cyber Activities and International Law (April 2024) p. 14-15.
  17. ↑ Austrian Position on Cyber Activities and International Law (April 2024) p. 15.
  18. ↑ Austrian Position on Cyber Activities and International Law (April 2024) p. 15-16.

Bibliography and further reading[edit | edit source]

Retrieved from "https://cyberlaw.ccdcoe.org/wiki/Diplomatic_and_consular_law?oldid=4163"