A breach of diplomatic relations generally precludes direct contact between sending and receiving States other than what is needed to effect orderly departure and some form of interim regime.
by Dr. Ruwantissa Abeyratne in Montreal
“Afghanistan—where empires go to die” ― Mike Malloy
On Sunday 15 August 2021, when the Taliban had taken most of Afghanistan and were approaching Kabul, and when the armed forces of the country had little hope of preempting or preventing capitulation, Canada suspended diplomatic operations in its embassy in Kabul. CBC News reported that the federal ministers of foreign affairs, immigration and defense had said in a joint statement: “After consulting with Canada’s ambassador to Afghanistan, the decision was made to temporarily suspend our diplomatic operations in Kabul,” Consequently, Canada was planning to repatriate its embassy staff.
The United States had already evacuated its Embassy and The United Kingdom was reported to have left behind a contingent of 100 troops to protect the compound and other diplomatic efforts in the city, on the basis that “a very messy and very violent situation would unfold in Kabul if the Taliban gain control of the city”
Somewhat ironically, at the same time as Canada’s withdrawal of its diplomatic work in Kabul, Suhail Shaheen, the spokesperson for the Taliban team in Qatar, told BBC journalist Yelda Hakeem on BBC World News that the Taliban wished everything in Afghanistan to function as before and that the diplomatic missions in Kabul should remain and keep functioning as before and no one will be harmed or discriminated upon and all would be able to carry on their work without let or hindrance.
It is no triumph of lucidity to recognize that diplomatic immunity and privileges are crucial to the harmonious inter relationships between States and the Taliban at first blush will not totally alienate the international community. At least not in an overtly evident manner.
The origins of diplomacy date back to the period of darkness preceding the dawn of history. It is claimed that anthropoid apes living in caves practiced a form of diplomacy in reaching understandings with their neighbors on territorial boundaries pertaining to their own hunting grounds.
|The Taliban flag is raised in the major southern city of Kandahar after the city falls to the armed group. [EPA]|
The compelling need to ensure the preservation of life of an emissary, on the ground that no negotiation could take place if emissaries, however hostile, were murdered on arrival, gave rise to the practice of diplomatic immunity, which is attributed to Australian aborigines, and is mentioned in the Institutes of Manu and in Homeric poems. In the modern world, the institution of the permanent diplomatic mission is the cornerstone of international diplomacy and comity, and the diplomat carries out the function of diplomacy which is generally termed “diplomatic practice”. These privileges are extremely important if diplomacy is to be effective. The overall aim and objective of diplomacy is to ensure that peace and justice prevails throughout the world and to this end, the institution of diplomacy is a pre-eminent example of the growth of modern civilization. For these reasons the advantages of diplomatic immunities and privileges override their disadvantages.
The practical applicability of this philosophy is personified by the fact that, as reported in The Guardian “An Afghan government delegation will travel to Qatar on 15 August to meet Taliban representatives, as confirmed by an Afghan government negotiator. The delegation will include Abdullah Abdullah, head of the Afghan reconciliation committee and the Afghan delegation was to meet with the Taliban in the Gulf state after the militant group earlier entered Kabul”. An in informed source had said that the Afghan delegation and Taliban representatives would discuss a transition of power, adding that US officials would also be involved.
The international treaty regulating diplomatic relations is the Vienna Convention on Diplomatic Relations of 1961. Afghanistan acceded to the treaty in 1965 whereas the United States ratified it in 1972 and the United Kingdom did so in 1964. Canada followed suit in 1966. As such, all these States are bound by the provisions of the Vienna Convention and any measures taken from a diplomatic perspective must be within the parameters of the treaty if the dignity of international law were to be preserved and support for the parties from the international community were to be expected. The Taliban spokesperson Suhail Shaheen explicitly assured the BBC that this was the start of a new chapter of peace, harmony, and revival for the nation of Afghanistan. Therefore, all parties concerned would consider as paramount the avoidance of acrimonious and internationally unacceptable acts.
In terms of severance of diplomatic relations by States with one another, the Vienna Convention does not explicitly make provision for the right to break diplomatic relations. It follows by implication from Article 2 which provides that the establishment of diplomatic relations takes place by mutual consent that if either State withdraws that consent diplomatic relations are broken. Breach therefore takes place normally in consequence of a unilateral act—even though it frequently follows a sequence of reciprocal or retaliatory moves between two States to downgrade their relations or a collective political decision by a number of States directed against another State whose conduct is regarded as unacceptable. Relations are broken from the moment of the initial action. The other State has no option in the matter. There are no legal limitations on the right of a State to break diplomatic relations with another, but the action is now invariably taken for political reasons. Practical considerations will almost always favour the continuation of relations, though not necessarily the retention of a permanent mission. This has become more obvious in the light of some cases in history where diplomatic relations subsisted even while armed conflict was taking place between sending and receiving States—as between India and Pakistan in 1965 and 1971.
A breach of diplomatic relations generally precludes direct contact between sending and receiving States other than what is needed to effect orderly departure and some form of interim regime. It does not, however, preclude the sending and receiving of special missions (which may later herald a resumption of normal diplomatic relations), meetings between diplomatic representatives of the two States in a third State (for example the regular meetings in Warsaw over many years of representatives of the United States and of the People’s Republic of China) or contacts between representatives of the two States to an international organization. Detailed rules on permissible contacts are usually provided in the internal diplomatic service regulations of each State. It is often a feature of modern diplomacy that those on occasion a much-advertised breach of relations may turn out to be only partially real. This occurs when two States, having broken off diplomatic relations, usually on the initiative of one of them, continue an active, if quiet, direct relationship despite the appointment of third States to protect the interests of each in the territory of the other State.
The current action taken so far by Canada, the United States and the United Kingdom carry legal legitimacy by virtue of several provisions of the Vienna Convention. The expectations of these States of fair treatment comports with assurances given by the treaty. For example, Article 43 provides that the function of a diplomatic agent comes to an end, inter alia on notification by the sending State to the receiving State that the function of the diplomatic agent has come to an end; or on notification by the receiving State to the sending State that it refuses to recognize the diplomatic agent as a member of the mission. Article 44 goes on to say that the receiving State must, even in case of armed conflict, grant facilities in order to enable persons enjoying privileges and immunities, other than nationals of the receiving State, and members of the families of such persons irrespective of their nationality, to leave at the earliest possible moment. It must, in particular, in case of need, place at their disposal the necessary means of transport for themselves and their property. As per Article 45 if diplomatic relations are broken off between two States, or if a mission is permanently or temporarily recalled: the receiving State must, even in case of armed conflict, respect and protect the premises of the mission, together with its property and archives; the sending State may entrust the custody of the premises of the mission, together with its property and archives, to a third State acceptable to the receiving State; the sending State may entrust the protection of its interests and those of its nationals to a third State acceptable to the receiving State. The receiving State cannot discriminate between States.
Given the above, and in this delicate situation, all State parties concerned, including but not limited to the States mentioned herein, must stay within the parameters of jurisdiction accorded to them under Article 2.4 of the United Nations Charter which states unequivocally: “All member States shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations”.
Rutger Bregman concludes his book Humankind: A Hopeful History with the statement: “It’s time for a new realism. It’s time a new view of humankind”. We should all wish this for Afghanistan and its brave people.