DIPLOMATS BEARING PRESENTS: DIPLOMATIC FUNDING UNDER INTERNATIONAL LAW.

• Author: Behrens, Paul

SUMMARY I. INTRODUCTION II. TOWARDS A BAN ON DIPLOMATIC FUNDING III. LEGAL GROUNDS FOR DIPLOMATIC FUNDING IV. TOWARDS AN EVALUATION OF DIPLOMATIC FUNDING V. CONCLUDING THOUGHTS SUMMARY

Diplomats with a budget can be dangerous persons. Envoys who fund political parties in the receiving State possess a powerful method to gain influence in the host country. And yet, international law has been slow to react to such activities, and even today, there is no express norm banning the diplomatic provision of material means.

This article explores existing rules of diplomatic law, but also bans on corruption and bribery which exist under general international law and which have an impact on situations of this kind. But it also takes into account the fact that not all rules in the field restrict diplomatic funding. At times, diplomats are able to refer to the ordinary exercise of their functions as grounds for funding activities and thus to a norm which is enshrined in the Vienna Convention on Diplomatic Relations. On other occasions, they are able to invoke permissive norms under general international law--such as the existence of erga omnes interests which may open the way to the provision of financial support to beneficiaries in the receiving State. This article also reflects on the need for a mechanism to mediate between opposing interests in this area of diplomatic relations and suggests a method which allows each legitimate interest to survive by determining its appropriate place in the framework of specific situational parameters.

1. INTRODUCTION

   In 2008, just seven years prior to the reopening of the U.S. embassy in Cuba, (1) relations between the two States were still fraught with difficulty. They did exist--though in a somewhat unusual form: both countries had representatives assigned to "interests sections" in each other's territory, and the work of U.S. diplomats in Cuba was viewed with a measure of suspicion by the local authorities. (2)

   In May of that year, a case arose which gained prominence in U.S.-Cuban relations: the Cuban government made accusations against the head of the U.S. Interests Section, Michael Parmly, who had allegedly provided financial support to Cuban activist Martha Beatriz Roque. (3) According to the authorities of the receiving State, Parmly had made three monthly cash payments of at least $1,500 (USD), which were intended to go to Cuban dissidents. (4) The U.S. State Department, while not commenting on the particular allegations, noted that it had for a long time given humanitarian assistance to opposition leaders. (5)

   Funding activities by diplomatic agents can look back on a long history in international relations. Recipients and purposes varied widely: Thayer, for instance, notes that, in the 18th century, the funding of intelligence agents was essential for a "well-run" embassy: "the employment of a modest stable of spies was considered so essential that the diplomat was expected to pay them out of his own pocket--and very liberally at that." (6)

   In one of the earliest cases of diplomatic funding in the history of the United States--an incident involving the French Minister to the young republic, Edmond-Charles Genet--the objective of the relevant activities would have had even more direct repercussions. Genet arrived in 1793, but even before he had presented his credentials, he had begun to fit out armed privateers to attack British merchant ships and to enlist U.S. citizens in the French fight against Britain. (7) Genet had been authorized by the French Executive Council to maintain a network of agents in Louisiana (then mainly under Spanish control) and to incur the necessary expenses to lay the seeds of revolution in this part of the continent. (8) The United States eventually requested the diplomat's recall. (9)

   In contemporary diplomatic relations, another recipient of diplomatic funding has gained prominence: what has moved to the center of concern these days is the funding of parties and factions within the jurisdiction of the receiving State. A 1980 case exemplifies the situation: in January of that year, Vsevolod Sofinsky, the Soviet Ambassador to New Zealand, was declared persona non grata. (10) Robert Muldoon, then Prime Minister of New Zealand, declared that Sofinsky had been personally involved in the financing of the Socialist Union Party--a "substantial" sum had apparently made it to that party's coffers, and the funding activities had been going on for some time. (11) And in February 2003, India expelled Jalil Abbas Jeelani, the Pakistani Deputy High Commissioner to the country, amid charges of diplomatic funding activities. (12) According to India, Jeelani had been personally involved in the financing of separatists based in the Indian zone of the Kashmir region. (13) Jeelani and three other diplomats were given forty-eight hours to leave the country. (14)

   That receiving States have frequently taken a negative position towards the provision of material means by diplomatic agents is clear from these and other instances in which allegations to this effect have been raised. (15) It is also clear that this is a position shared by States with varying political structures and cultural backgrounds. And yet, the legal assessment of diplomatic funding under international law is not without its difficulties.

   For one, there is no express norm that addresses this kind of conduct when performed by diplomatic agents. The Vienna Convention on Diplomatic Relations (VCDR), the leading multilateral treaty in the field of diplomatic law relating to permanent missions between States, makes no reference to the employment of money or other material means by diplomatic agents. (16)

   Receiving States, however, have often invoked different grounds in their evaluation of diplomatic funding activities. Following the Sofinsky incident, for instance, the Prime Minister of New Zealand pointed out that it was an "established international convention that a diplomatic representative [did] not interfere in the domestic politics" of the receiving State; (17) and similar statements have been made in other situations in which diplomatic agents provided financial assistance to factions in the State in which they were based. (18)

   The invocation of the ban on diplomatic interference, however, is more than an expression of political disagreement or the reflection of opposing opinions on a point of protocol. Meddling by diplomatic agents is directly addressed in the VCDR, whose Article 41 establishes the general duty of beneficiaries of diplomatic privileges and immunities under this convention "not to interfere in the internal affairs" of the receiving State. (19)

   Outside the framework of diplomatic law, there are further rules which may have an impact on situations of this kind. They are norms against certain funding activities which were mainly established by multilateral conventions on bribery and corruption and which were drafted without reference to the particular scenario in which diplomatic agents are the authors of financial support. However, if such activity fulfils the parameters established by the norms in question, it is subject to these regulations if the sending State is party to the existing treaties, or if the relevant rules reflect a corresponding obligation under customary international law.

   And yet, the identification of restrictive rules on this matter and their application to cases of diplomatic funding does not, by itself, suffice for a legal assessment of the underlying conduct. A particular difficulty arises from the fact that diplomatic activity in situations of this kind can often rely on norms whose basis in international law is as strong as that of the ban on interference and the codified prohibition of funding activities. (20) That includes the exercise of traditional diplomatic functions, but also interests of the sending State which derive from obligations which the host country owes erga omnes--i.e., to the international community as a whole. It is this coexistence of seemingly divergent interests which accounts for of the most serious challenges to any attempt to reach a legal evaluation of diplomatic funding today.

   This article examines the position which international law adopts with regard to diplomatic funding activities. Section II deals with rules whose existence generates a restrictive impact on conduct of this kind--including the ban on interference and more general rules on bribery and corruption. Section III examines norms which can form a basis for diplomatic agents in such situations and can be invoked by the sending State in defense of the relevant conduct. Section IV analyzes ways of resolving the meeting of the divergent norms, and Section V offers concluding thoughts on the evaluation of diplomatic funding in the context of contemporary international law.

   At the center of these considerations are diplomatic agents assigned to permanent missions, to which the VCDR applies. (21) An examination of that kind excludes consular officers, ad hoc diplomats and diplomats representing their States in international organizations or at conferences--persons who fulfil such functions are subject to different regimes. (22) However, incidents involving these persons are included as illustrations, where they share common ground with diplomats assigned to permanent missions in inter-State relations.

2. TOWARDS A BAN ON DIPLOMATIC FUNDING

   International law, at least in its codified form, has been slow to react to funding by foreign agents. Abbott goes so far as to state that, prior to the 1990s, corruption had been considered "a fact of life and a taboo subject in international fora" and that "many development advocates viewed it as an essential lubricant for economic activity." (23) As late as 1964 did the editor of Satow's Diplomatic Practice maintain that "[i]t may be that the Law of Nations is not concerned with bribery. It seems rather a question of...