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Full text of "Protecting Powers: International Law
"
See other formats
CAMBRIDGE
UNIVERSITY PRESS
Diplomatic Law: Protecting Powers
Author(s): Vaughan Lowe
Source: The International and Comparative Law Quarterly, Vol. 39, No. 2 (Apr., 1990), pp.
4/1-474
Published by: Cambridge University Press on behalf of the British Institute of
International and Comparative Law
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ApriL 1990] = Current Developments: International Law 471
At a legal level, the United Kingdom is now far better equipped than it was
pre-Chernobyl to cope with any future transboundary nuclear accident.
JOHN WOODLIFFE
Il. DIPLOMATIC LAW: PROTECTING POWERS
THE institution of the protecting power, i.e. a State (or an organisation such as
the International Committee of the Red Cross) which protects the citizens and
interests of another State in a third State, particularly in time of conflict or ten-
sion,! has received little attention in the context of the Law of Peace. Provision
is made in the Law of Armed Conflict for the operation of protecting powers,”
and the institution is recognised in the 1961 Vienna Convention on Diplomatic
Relations, which requires that the protecting power be acceptable to the host
country.° The United Kingdom has agreed to arrangements for the represen-
tation of foreign States in London in the past,* and has itself been represented
by third States in a number of countries in recent years. These include the fol-
lowing: Guatemala, where the United Kingdom was represented by Switzerland
following the severing of diplomatic relations in 1963 and of consular relations in
1981 by Guatemala;? Argentina, where it was represented by Switzerland after
the 1982 Falklands conflict;° and Libya, where it was represented by Italy after
the murder of P.C. Yvonne Fletcher by shots fired from within Libyan diploma-
tic premises in London on 17 April 1984.’ The representation of British interests
in Tehran was assumed by Sweden from 1980 to 1988, despite the maintenance
of diplomatic relations between the United Kingdom and Iran, for security
reasons.® The British embassy in Tehran reopened in 1988, but British diploma-
tic representation was withdrawn in 1989 in the wake of death threats made by
Iranian government officials against Salman Rushdie, the (British) author of
The Satanic Verses, a book considered by some Muslims to be blasphemous.’
Sweden then resumed the representation of British interests in Iran. Arrange-
1. See E. Denza, Diplomatic Law (1976), pp.278-282; D. P. Forsythe, ‘‘Who Guards
the Guardians: Third Parties and the Law of Armed Conflict’”’ (1976) 70 A.J.I.L. 41-61;
Lord Gore-Brown and D. Pakenham (Eds.), Satow’s Guide to Diplomatic Practice (5th
edn, 1979), pp.187-191; L. Sfez, “La rupture des relations diplomatiques’’ (1966)
R.G.D.1.P. 359, 406-411.
2. See e.g. Geneva Convention for the Amelioration of the Condition of the Wounded
and Sick in Armed Forces in the Field 1949, 75 U.N.T.S. 31, Arts.8-10; Geneva Protocol
I, 1977, Cmnd.6927, Art.5.
3. 500 U.N.T.S. 223, Arts.45, 46.
4. See United Kingdom Materials on International Law 1982 (1983) 53 B.Y.B.I.L.
5. H.C. Debs., Vol.59, col.235 (W.A.) (3 May 1984).
6. Ibid.
7. Ibid. For further examples from the practice of other States see G. H. Hackworth,
Digest of International Law (1942), Vol.IV, pp.498-506; M. M. Whiteman, Digest of
International Law (1970), Vol.7, pp.448-464; Digest of United States Practice in Inter-
national Law 1980 (1986), pp.335-340; Répertoire suisse de droit international public
(1975), pp.1474, 1993.
8. See United Kingdom Materials on International Law 1986 (1987) 57 B.Y.B.I.L.
548.
9. H.L. Debs., Vol.504, cols.521-527 (21 Feb. 1989).
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472 International and Comparative Law Quarterly [VoL. 39
ments for the protection of British interests through a ‘‘British interests section”’
in the relevant embassy were negotiated in each of these cases, but the Agree-
ment on Protection of British Interests in Iran, made between the United King-
dom and Sweden on 27 July 1989,'° appears to be the first formal agreement of
this kind made by the United Kingdom to reach the public domain.
Agreements for the protection of interests in foreign States provide for the
representation of interests in a range of fields defined in the agreement: the 1989
Agreement extends to administrative, humanitarian and commercial matters.
Agreements may also provide for nationals of the protected State to be assigned
to the diplomatic missions of the protecting power. Officials of the protecting
power do not become officials of the protected State, and are not subject to its
instructions except as agreed between the two States concerned. It has been sug-
gested that all such agreements depend upon the consent not only of the pro-
tected State and the protecting power, but also of the host State, and may be
terminated by any of the three States.!’ However, the British position is under-
stood to be that the arrangement is a matter between the protecting and pro-
tected powers, and that in the unlikely event of the consent of the territorial
State being withdrawn, it would be for the protecting and protected States to
draw the appropriate conclusion. It is understood that the Iranian authorities
agreed to the arrangement between the United Kingdom and Sweden.
The initiative for the agreement came from Sweden, which looks after the
interests of some ten countries, as a result of the adoption by the Swedish auth-
orities of a measure requiring the Swedish government to conclude bilateral
agreements with the countries whose interests it is protecting. It is intended to
be a model for future bilateral agreements. Because of its novelty and import-
ance, the Agreement is reproduced in full, with the exception of the Annex,
which merely identifies the premises taken into custody by the protecting power
under Article 4 of the Agreement. The Agreement reads as follows:
AGREEMENT
Between the Government of the Kingdom of Sweden and the Government of the
United Kingdom of Great Britain and Northern Ireland concerning the assumption
of responsibility for the protection of the diplomatic and consular interests of the
United Kingdom Government in the Islamic Republic of Iran by the Government of
the Kingdom of Sweden
The Government of the Kingdom of Sweden and the Government of the United
Kingdom of Great Britain and Northern Ireland;
Noting that diplomatic and consular relations between the United Kingdom and
the Islamic Republic of Iran have been severed;
Have agreed as follows:
Article 1
(1) Sweden undertakes to represent the United Kingdom as protecting power in the
Islamic Republic of Iran.
(2) The commission as protecting power comprises administrative, humanitarian
and consular matters. If the commission is to be extended to cover other matters, a
separate agreement to that effect is required.
10. Text provided by the FCO.
11. See Whiteman, loc. cit. supra n.7.
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ApriL 1990] = Current Developments: International Law 473
(3) In dealing with protection matters, the protecting power may avoid taking
action that could damage its position or good name in the receiving country, or in
relation to any other country. In case of doubt in dealing with a matter, the Minis-
try for Foreign Affairs in Stockholm shall take the decision. This always applies to
letters and other messages from the commissioning country to the receiving
country.
Article 2
(1) An Interests Section for the commissioning country under the Swedish
Ambassador shall be set up at the Swedish Embassy in Tehran. Staff employed at
the Interests Section may on the one hand be Swedish officials, on the other locally
engaged personnel of the commissioning country. The protecting power under-
takes, where necessary, to obtain permission from the receiving country with
regard to the employment of career officials sent out by the commissioning country.
(2) The Parties agree that diplomatic courier and secure telegraphic communica-
tions may not be established between the commissioning country and its Interests
Section at the protecting power without the approval of the receiving country.
Article 3
The Department for the commission as protecting power at the Ministry for
Foreign Affairs (B Department) shall maintain contact with the commissioning
country’s representatives in Sweden in all matters relating to the commission. In
appropriate cases direct communication may, with the consent of the protecting
power, be maintained between the commissioning country and the Swedish
Embassy in Tehran. However, the protecting power shall be kept informed of the
nature and extent of such contacts.
Article 4
(1) The premises taken into custody by the protecting power are listed in the annex
to this Agreement. The Parties shall exchange information about the contents of
the premises taken into custody.
(2) The protecting power is not under an obligation to accept care of the property
of citizens of the commissioning power.
Article 5
(1) The protecting power shall take good care of the property received. If an official
sent out by the commissioning country has taken the property into his care, the
responsibility for it rests with him. The representatives of the protecting power
shall assist him, if the official requests such assistance.
(2) If property belonging to the commissioning country is used by agreement
between the Parties as a residence or office for a member of the staff connected
with the mission of protection, no rent shall be charged, but the protecting power
shall be responsible for the maintenance of the property. Other properties may be
leased by the protecting power on terms to be agreed.
(3) Sale of property belonging to the commissioning country through the agency of
the protecting power may not take place without the permission of the commission-
ing country.
Article 6
The commissioning country undertakes to reimburse the protecting power for all
expenses incurred in the protection of its interests. B Department shall inform the
commissioning country’s Embassy in Stockholm of the amount.
Article 7
The bank deposits of the commissioning country in the name of the British Interests
Section Tehran shall be transferred to special accounts in the Swedish Embassy’s
name.
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474 International and Comparative Law Quarterly [ VoL. 39
Article 8
Disputes arising between the Parties to this Agreement relating to the commission
as protecting power shall be settled by diplomatic means. If a settlement cannot be
reached in that way, the dispute shall be submitted to arbitration according to a
procedure agreed between the Parties.
Article 9
This Agreement shall enter into force on the date of signature and shall remain
valid until the commissioning country, having re-established relations with the
receiving country, notifies the protecting power of the assumption of normal diplo-
matic and consular functions. The provisions of Article 8 of this Agreement shall
also apply to disputes arising in connection with the termination of the commission
as protecting power.
In witness whereof, the undersigned, duly authorised thereto by their respective
Governments, have signed this Agreement.
Done in duplicate in the English language at London this [27] day of [July] 1989.
[Signatures on behalf of both governments |
VAUGHAN LOWE
Il. ANTARCTICA
On 22 March 1989 the United Kingdom government introduced the Antarctic
Minerals Bill’ in the House of Lords. The main purpose of the legislation is to
enable the United Kingdom to ratify the Convention on the Regulation of
Antarctic Mineral Resource Activities? adopted at Wellington, New Zealand,
on 2 June 1988, and opened for signature on 25 November 1988.7 The purpose
of this note is to examine developments since the adoption of the Convention on
2 June 1988, some of which have placed in doubt the eventual entry into force of
the Convention.
During debate on the Antarctic Minerals Bill, the shadow Secretary of State
for Foreign Affairs observed that:
Since the convention was signed, significant developments have changed political,
public and environmental perceptions. First, the public outrage—that is not too
strong a word—at the oil spillages of the Exxon Valdez and, to a lesser extent, the
Bahia Paraiso, has been dramatic . . . The lessons for Antarctica are there to be
learnt from the Arctic disaster and from the damaging effect of the relatively small
spillage of the Bahia Paraiso in the Antarctic itself.*
During early 1989 there were three accidents” in Antarctica, at least one of
1. For discussion of the UK legislation see I. D. Hendry, ‘“The Antarctic Minerals Act
1989” (1990) 39 I.C.L.Q. 183.
2. For an analysis of the Convention see A. Watts, ““The Convention on the Regula-
tion of Antarctic Mineral Resource Activities 1988”’ (1990) 39 I.C.L.Q. 169.
3. The Convention was signed on behalf of the UK on 22 Mar. 1989.
4. Statement by the shadow Secretary of State for Foreign Affairs, Michael Foulkes,
during debate on the second reading of the UK’s Antarctic Minerals Bill: H.C. Debs.,
Vol.156, col.223 (4 July 1989).
5. In addition to the Bahia Paraiso, in Feb. 1989 the British resupply vessel H.M.S.
Endurance hit an iceberg near Deception Island, sustaining damage below the waterline,
but managed to navigate to Esperanza Bay, near the Argentine base; and the Peruvian
vessel BIC Humboldt ran aground in Fildes Bay, King George Islands.
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