Dr Paul Behrens discusses diplomatic interference and the law

When Theresa May complained about ‘EU interference’ ahead of the general election, her accusations raised eyebrows in Brussels, with the European Commission noting that it was too busy to do anything of the sort. That may well be true. But the incident underlines the sensitivity of governments that believe that other states are taking an active part in their affairs.

Where diplomats are concerned, a rule of the Vienna Convention on Diplomatic Relations (the ‘basic law’ of modern diplomacy) comes into play: the Convention makes clear that diplomats may not ‘interfere in the internal affairs’ of their hosts. That is more than a point of protocol: states around the world consider this duty highly important. Sometimes with good reason: some sending states are powerful, and the actions of some diplomats can be disturbing.

Take the case of Musa Kusa, who in 1980 was head of mission for the Libyan ‘People’s Bureau.’ In June, Kusa explained to a reporter that Libyan revolutionary committees had decided to kill two people in the UK, and that he approved of that. Not only that: Libya, he said, was ‘seriously thinking of cooperating with the IRA.’ It is, perhaps, not surprising, that he was summoned by the Foreign Office and told that his presence in the UK was no longer considered useful.

Cases like these are, thankfully, rare. But involvement in elections is not, as numerous incidents have shown. A 1946 case stands out: in that year, the US Ambassador to Argentina (Braden) participated so enthusiastically in the election campaign in that country that his name was better known than that of Colonel Perón’s contender. (The Perón camp turned this to its advantage and used the slogan ‘Perón “si” Braden “no!”’ Perón won.)

Diplomatic interference has also made it to the courts: the International Court of Justice (ICJ) mentioned it as early as 1950 (in a case concerning asylum). In 2009, another case was brought to the ICJ by Honduras, concerning the Embassy of Brazil in Tecucigalpa, which had given refuge to the ousted Honduran President Zelaya. From the Embassy, Zelaya had addressed his followers with dramatic words (“Restitution, Fatherland or Death!”) and caused disturbances. Brazil, in Honduras’ view, had therefore allowed the Embassy to be used as a ‘platform for political propaganda.’ (The court application was later withdrawn).

On the face of it, all of this seems to suggest that diplomats are best advised to stay out of public controversy (and ideally agree with everything the host government says). But that, too, is not feasible. Nor is international law as restrictive as that: diplomats, after all, have rights, too.

Among them is the right to protect the interests of their nationals. It is a point that played a role in a 2012 incident involving US diplomats in China: US missions had begun to monitor air quality and made the information available on websites. That caused some embarrassment (the US data often showed worse conditions than those reported by Beijing). The Chinese government invoked the duty of non-interference, but the State Department stood its ground: the missions, it said, had provided Americans in China with information so that they could make decisions ‘regarding the safety of outdoor activities.’ In other words, they were protecting the interests of their nationals – a task which the Vienna Convention expressly recognises.

Sometimes, diplomats have little choice but to speak up: if they do not, they lose an important position. A case which the ICJ decided in the 1960s illustrates the problem: it was the case of Preah Vihear –  an area disputed between Cambodia and Thailand. The ICJ ruled in favour of Cambodia. An important reason for that was a visit by the Thai Prince Damrong to the area in 1930 (when Cambodia was still part of French Indo-China). When Damrong arrived, he was received by the French Resident, with the French flag flying, but did not issue a protest. To the court, this showed that there had been ‘tacit recognition’ by Thailand of the Cambodian sovereignty over Preah Vihear. Silence, it seems, carries its own dangers.

But what is the best way out of this dilemma?

To diplomats, the right way may often involve fine distinctions. Even where diplomats have good reasons to act, the rule against interference, after all, has not disappeared. And while diplomats may have to fulfil their tasks even where this leads to controversy, they are well advised not to go beyond the limits of the necessary. Often enough, that is already part of their work: diplomats tend to be aware of the need for nuance when getting a sensitive point across (they might speak about ‘complaints’ instead of ‘protests,’ they may issue the complaint verbally rather than in writing etc.)

Sending states, on the other hand, must realise that their diplomats are regularly exposed to the numerous pitfalls which international law harbours for them. And yet, it is surprising how few countries include international law in the diplomatic training schedule. That must change: the current situation carries grave dangers for the states themselves and robs diplomats of important tools in their work.

And what about the diplomatic hosts? Interference, it is true, can cause problems. But in many cases, it is only a loud protest which turns a diplomatic activity into an incident that will be the topic of discussion for years to come. And if the activity was never that grave to begin with – if it was the odd critical remark, say, or a diplomat turning up at a party-political event –  there is no guarantee that the world will side with the receiving state. It may be an own goal: the diplomat may emerge as the voice of reason, while his hosts come across as highly strung – and more than a bit foolish.