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DIPLOMATIC MISSIONS AS INTERNATIONAL LAW SUBJECTS WITHIN THE REPUBLIC OF MOLDOVA JURISDICTION

DIPLOMATIC MISSIONS AS INTERNATIONAL LAW SUBJECTS WITHIN THE REPUBLIC OF MOLDOVA JURISDICTION
Roman Mereuţă, ph.d. of

The Institute of Political and Legal Research of the Academy of Sciences, Moldova

Natalia Suceveanu, lecturer, ph.d. of

Centre for Harmonization of Legislation

Conference participant

There are many countries in the world and not all are members of the United Nations. Many states have proclaimed their independence, but were not recognized and they are not subjects of international law. In case a state is a subject of international law, it has an identity, so obviously it has both - rights and obligations, in the global coexistence.  Under these conditions occurs the exercise of diplomatic law. Diplomatic missions exercise diplomacy and obviously promote foreign policy of State. The article highlights the diplomatic function and diplomatic activity, characterizes the functions of diplomatic missions, the specific of functions of diplomatic missions of the Republic of Moldova accredited in other states, highlighting the features of the Moldovan diplomacy, constitutional principles of Moldova's foreign policy.

Keywords: diplomatic missions, treaties, diplomatic relations, mission elements.

Есть много стран в мире но не все  являются члены Организации Объединенных Наций. Многие государства провозгласили свою независимость, но не были признаны, и они не являются субъектами международного права. В случае, если государство является субъектом международного права, то оно имеет права и обязанности, в глобальном сосуществования. В этих условиях происходит осуществление дипломатического права. Дипломатические миссии осуществляет дипломатию и, очевидно, содействует внешнюю политику государства. В статье подчеркивается дипломатическая функция и дипломатическая активность, характеризует функции дипломатических представительств, специфика функций дипломатических представительств Республики Молдова, аккредитованных в других государствах, подчеркнув особенности молдавской дипломатии и конституционные принципы внешней политики Республики Молдова.

Ключевые слова: Дипломатические представительства, договоры, дипломатические отношения.

 

The Republic of Moldova after the Declaration on Independence of 27 August 1991 became an independent and sovereign, unitary and indivisible state, a state of law, democratic  in which the human dignity, rights and freedoms, free development of human personality, justice and political pluralism have been declared supreme values and were guaranteed by the state. This challenge has stated that the highest value of the state are its people and citizens and the state must protect their interests regardless of their location. On March 2, 1992, Moldova was accepted in the United Nations and in this context it became the subject of International Law. Many countries have recognized the Republic of Moldova as a state and concluded bilateral treaties with it. Article 8 of the Constitution of Moldova stipulates compliance with international law and international treaties. In this regard, the Republic of Moldova pledges to respect the United Nations Charter and the Treaties to which it is party and build relations with other states on universally recognized principles and norms of international law. Namely this constitutional basis determines the foreign policy of the Republic of Moldova. In terms of interstate relations emerged the bases of diplomatic law. In this case, appear unanimous recognized party relationships where one country and effectively Moldova as subject of international law establishes diplomatic relations. Contemporary international law is a system of principles and rules governing relations between sovereign states and other derivative and secondary subjects in relation to these states, the norms representing the will of States and compliance with then if necessary, can be ensured or imposed by the possibility of using coercion applied on individual or collective basis. International relations and international law by their nature have a coordination character and in no way of subordination. The first coordinate underpinning the delimitation of sphere of functions and diplomatic activity is given by the character of the mission, that it is only about those activities that can have a a state body created specifically to achieve its foreign policy. The second coordinate of functions and activity of diplomatic mission is represented by their finality. The third coordinate is the agreement between the concerned States on the functions and activities of diplomatic missions.

By becoming a subject of international law The Republic of Moldova initiated the establishment of diplomatic relations with other subjects of international law, respectively, establishing permanent diplomatic missions abroad. In parallel started the reorganization process of the specialized state institutions. Reorganization  or, rather, the formation of diplomatic service of the Republic of Moldova was a creative process on how interesting same difficult due to the fact that the country did not have at that time a legal framework allowing him to exercise its external functions, did not have diplomatic staff with relevant training, did not have experience in external relations and did not have a database of norms and principles of international law. Despite the aforementioned problems and difficulties, over 2-3 years, Moldova has managed to organize the Moldovan diplomatic service, which was concentrated in the central office of the Foreign Affairs Minister and also in the diplomatic missions abroad.

Moldovan diplomatic missions are located in states that have friendly relations with our country and exists a cooperation in the economic, commercial and political field. The structure of diplomatic missions is classic. The mission is led by the Head of Mission in the rank of ambassador. Each mission has its structure, which is determined by traditions and specific of the host state and by functional needs of the mission.

Within the created framework of international law, foreign policy and diplomacy is conducted in institutionalized forms, on different plans, ranging from bilateral activities till participation in multilateral structures, from economic, culture concerns, etc. Even in activities designed to promote stability, peace and international security, from relations development with its neighbors to the integration into the international community. A dense and varied network of international Agreements orders states foreign policy and its diplomatic activity, as bilarerale agreements, multilateral agreements which in turn are sub-regional, regional and global.

Political-diplomatic relations arise due to mutual recognition of states, each of them showing by the act that he considers the other as bearer of sovereignty, so as the international subject of law. At the same time, recognition signifies states commitment to wear at the base of their mutual relationships. That status can begin by breaking diplomatic relations at the initiative of certain or both parties. It may happen because of many causes, such as deep political divergences, that can  mean the initiation of a military conflict, as well as war triggering between parts, change of political schedule in a country, a case in which the new power is not recognized of the other part. Whereas the breach of political relations doesn’t mean the ceasing any contact between countries, each of them can appoint as usual a third part to represent the interests of that country.[1]

Despite of modern quietism, affirmed by Pierre Joseph Proudhon in the system of economical compulsions, the man’s life consists of a permanent struggle, a struggle against shortages, a struggle with the nature, a struggle with fellows, consequently, with himself, he also adds that “this is the universal law of nature and humanity”. Misunderstandings, disputes, quarrels, rivalries, fights, scuffles: the everyday words illustrate that general schedule of dissensions. So, the conflict exists in the society heart, but this is social, banal, ordinary phenomenon and non-pathological in the same extent. Cicero said “Loneliness isn’t conflictual” as well as a supportive above quote we can notice at the great philosopher Freud which specify: “The Conflict is intern, consubstantial any society in the same extent as violence and goodwill”. That's why I would say that diplomatic missions are a solution, that’s kind of conflicts which are characteristic. In the doctrine of international law, diplomatic relations are defined as “directing due to representative authorities and peaceful ways of external relations of one subject of international law with any other subject of international law”. The activity of one diplomatic mission was submitted of several strict rules elaborated in order to achieve his function as much as perfect.

From the unfolding point of view and setting in time, the activity of one diplomatic mission possesses 3 stages: firstly, there are instructions which diplomatic missions have them or receive from government or: follows the moment of performing the task which it has, through notes and demarches which the accredited state does, and at the end, submission of reports which the government regarding on how he accomplished the mission which has returned based on instructions which it had previously received.[2]

The whole activity of diplomatic mission and staff or/is regulated through instructions which the government of accredited state gives them; in these instructions, are specified the duties which they have and line of behavior they must follow, both mission achievement and in general in connection with the way of behaving,  in time they are in mission on the territory of accredited state.

The instructions which are given to diplomatic agent with the cause of departure at post have a general character, looking at the aspects, the essences they must have in knowledge regarding politics followed by accrediting state to accredited state, the problems which are in suspension between those 2 states, the ideas they have to inspire in the course of his mission etc. Outside these general guidances, diplomatic agent will receive exact instructions regarding on every action he has to solve.

The instructions can be classified in written instructions (included in documents) and oral (transmitted verbally), in secret instructions (which must not be known by anyone except the respective diplomatic agent) and ostensive instructions (which may be communicated to accredited state). Usually, the instructions are secret, but the diplomatic agent can have the freedom or even the obligation in some cases, to communicate authorities from the accredited state.

Diplomatic demarche may follow different purposes: to communicate or to ask the information to accredited state; to send different proposals (for concluding a treaty); to ask government to perform a certain function (obtaining certain privileges); to seek to warn the government to end some hostile acts. Diplomatic demarche may be orally, written and mixed, verbal demarche is materialized through the meetings between Head of Mission. Verbal demarche can take the form of one declaration or representation.[3]

It is used, frequently, for communications, because these official communications sent by a diplomatic mission to Foreign Ministry of a accredited state and vice versa; it can emanate from the diplomatic mission as permanent authority of international relations of a stat or from the Head of Mission; notes express a unilateral will; he must comply a specific diplomatic style.

Diplomatic documents. In diplomacy, direct and oral contacts represent in general the closest method. That’s why the most letters which diplomatic mission addresses authorities of accredited state or receives from them which creates administrative problems or routine issues. For the other problems, written form is limited; because for one of them their use is unthinkable (obtaining or verification of political information takes place exclusively by conversations).

Diplomatic notes. Verbal note has as its object issues of secondary importance, but usually it is used for specifying certain details of a concrete situation, or exposes the content of one important conversation, verbal notes are used in correspondence between foreign missions, a diplomatic mission and Foreign Ministry and between diplomatic missions.

  • •   Sighed note is more solemn document. The note is addressed to Ministry of Foreign Affairs or in private to the Head of Mission.
  • •   Private letter has a less protocol character than sighed note and is used for communications which is given a personal character. Personal letter concerns a very little number of persons and it is addressed by the Head of Mission to Head of State, Head of Government, Foreign Ministry or to other officials and vice versa. The personal letters don’t hire the states as sighed note.
  • •   Collective note is a note addressed to a government by the representatives more states, which has to communicate in common their remarks. It is a way of communication extremely solemn.
  • •   Aide-memory (pro memory) is a document currently used the more as it is inseparable of oral demarche. Aide-memory is meant to present in brief certain pending problems between 2 states, to  expose discussed issues and to give in written form the point of view of the respective state (detailed presentation of the facts and arguments);
  • •   Identical notes and parallel notes, is a document of less importance, identical notes are perfected by the Heads of Mission, which expose their mutual opinion, and it is addressed to Foreign Ministry of the accredited state. Having a mutual idea with identical content, notes can be, also, different by shape and style. It’s not compulsory that identical notes to be simultaneously handed. It’s about of notes with the same content which are simultaneously presented.
  • •   Circular notes are used to communicate current information, protocol or administrative way.        

Diplomatic style had an important role over the centuries, being as one of the most important and traditional requirements for diplomatic agent from all times. This requirement results from the actual operating conditions for diplomatic activity (personalities involved, the nature and context of their approach to problems etc.) The notion of diplomatic style has two meanings: diplomatic style that assumes a set of rules governing the form which documents have to take, and a second meaning refers to the style itself. Each treated issue requires drafting of a particular note; the appropriate tool will be found depending by subject motion or negotiations (in some cases sending a verbal note, in others an exchange of letters or a treaty). Also a major role in negotiations has “protocol “which is of great importance in a diplomatic mission activity, more exactly diplomatic style includes protocol which represents actions of all mission members. Protocol encodes and introduces practical rules which govern the ceremony, following strict compliance. Byzantine diplomacy “Protocol" means the first part of an official act, in which participants were listed in a specific order. In present, notion of "protocol" means all rules under which official representatives of each state lead policy and procedure of various diplomatic ceremonies.[4]

The nature of problem requires finding a suitable form of communication: for example, a serious matter should not be treated in a personal note; as well as an agreement is not included in a note, but requires an exchange of notes or a protocol. In case of correspondence we answer in the same manner. It should also be taken into consideration protocol and local practice. Also, there are specific rules relating to terminology that shall be used in documents; when is required a signature; kind of paper that shall be used; courtesy formulas that must be used taking into account the note, and especially the recipient (protocol formulas are different in relation to held positions).

Duties of diplomatic mission.  Mainly, duties of the diplomatic mission are:

The first element that diplomatic mission must take into account is the obligation not to interfere in internal affairs of the sending State. Non-intervention in the internal affairs of a state is a fundamental principle of contemporary international law and a basic duty for states, between themselves, the diplomatic missions in their capacity as representatives of States, must always take into account their conduct. It is widely accepted that the envoys should not meddle in the domestic politics of the state in which they are accredited. The doctrine has always supported, and the practice has confirmed the interdiction to diplomatic agents to interfere in the internal affairs of the receiving State. Vienna Convention, referring to the duties of the persons enjoying diplomatic privileges and immunities, provides the same obligation: "They also have duty not to interfere in the internal affairs of that State". Prohibition of not interfering in the internal affairs of the receiving State envisages both acts of private members' mission, as well as sending State. It makes no difference whether a diplomatic representative acts by himself or under instructions from the sending State.

A head of mission could not take part in an election campaign that takes place in the receiving State; he cannot subsidize a political party or take action on disputes that can divide a country and much less to maintain disorder or participate in conspiracies seeking to overthrow the government, as well as influencing foreign policy, for embarrassing relations between the receiving State and third countries. The diplomatic mission is obliged to refrain from any public statements, press conferences,  speeches that can disturb the good relations between the host State and third States that could not reflect economic reality of the country, whenever these actions affect the interests of the sending State and vice versa.

Another measure with preventive character is to limit contacts of diplomatic missions only to certain organs of the receiving State by implementing the rule that all diplomatic mission communications in the receiving State shall pass through the Ministry of Foreign Affairs.

In performing its functions, the diplomatic mission could not directly address to the competent authorities, but to the Foreign Ministry. This limit derives from the fundamental obligation of the diplomatic mission not to interfere in the internal affairs of the receiving State. To promote the interest of the state and promote its foreign policy, a government is interested to provide a single point of view, clearly and unambiguously, to avoid confusion and contradictory explanations; otherwise , this could not be ensured if foreign missions could have unlimited permission to contact various departments of government or any authority of the receiving State. The diplomatic mission and its members are bound by the laws of the receiving State; mission has a general duty to ensure that no one of its members do not abuse of the treatment which comes under his statute (smuggling, violations of currency laws, etc.) and they make use of these treatments, only in conformity with laws and local regulations. With all the benefit from privileges and immunities which has diplomatic missions and diplomatic agents, they must respect laws of the sending State.

 

References:

  • 1. Convenţia pentru apărarea drepturilor omului şi a libertăţilor fundamentale. Adoptată la Roma la 04.11.1950 în vigoare la 03.09.1953.Moldpres, vol.1 1998.
  • 2. Pactul internaţional cu privire la drepturile economice, sociale din 16.12.1966 adoptată la New York. Moldpres, vol.1, 1998.
  • 3. Pactul internaţional cu privire la drepturile civile şi politice din 16.12.1966, în vigoare pentru Republica Moldova din 26 aprilie 1993. Moldpres, vol. 1 1998.
  • 4. Protocolul Nr. 11 la Convenţia pentru Apărarea Omului şi a libertăţilor fundamentale. Adoptată de Adunarea Parlamentară a Consiliului Europei la 06.10.1992. Moldpres, vol. 1, 1998.
  • 5. N. Osmochescu doctor in drept, conferenţiar univ. USM. Aplicarea dreptului internaţional în ordinea juridică internaţională a RM. Aspecte teoretico-practice. Revista Naţională de drept. Nr. 3 martie, 2006.
  •  

[1]Convenţia pentru apărarea drepturilor omului şi a libertăţilor fundamentale
[2]Protocolul Nr. 11 la Convenţia pentru Apărarea Omului şi a libertăţilor fundamentale. Adoptată de Adunarea Parlamentară a Consiliului Europei la 06.10.1992
[3]Pactul internaţional cu privire la drepturile economice, sociale vol. 1, 1998
[4]N. Osmochescu doctor in drept, conferenţiar univ. USM. Aplicarea dreptului internaţional în ordinea juridică internaţională a RM.
Comments: 4

Bubeyeva

This is an interesting piece which starts with the explanation of the functions and goals of diplomatic missions and then continues to describe procedural issues regarding the functions of these missions. The text is logically structured. It is clear and topical.

Korolev Evgenie Sergeevich

Довольно содержательная научная статья, которая требует от себя должного уровня, что так и есть. Ведь сама тематика, которую затронул автор сейчас находится в фокусе внимания не только в Молдавии, но и во многих странах. Здесь стоит сказать, что говоря о правах, необходимо учесть и то, что восприятие этих прав и стандартов должны быть равны во всех вопросах и у всех участников. Работа в целом заслуживает дополнительного внимания и одобрения со стороны научного сообщества. Благодарю авторов за столь интересную статью! С уважением, Евгений Королёв!

Sementsul Sergey

В статье четко просматривается анализ международного права и специфика функций дипломатических представительств Республики Молдова, в качестве самостоятельной отрасли права и науки, а в молдавских условиях подотраслью международного права, что подчеркивает автор научного труда.

Toivo Tanning

Very respected Roman Mereuţă and Natalia Suceveanu. The work is very hot topic and interesting. For best salutatory, Toivo Tanning
Comments: 4

Bubeyeva

This is an interesting piece which starts with the explanation of the functions and goals of diplomatic missions and then continues to describe procedural issues regarding the functions of these missions. The text is logically structured. It is clear and topical.

Korolev Evgenie Sergeevich

Довольно содержательная научная статья, которая требует от себя должного уровня, что так и есть. Ведь сама тематика, которую затронул автор сейчас находится в фокусе внимания не только в Молдавии, но и во многих странах. Здесь стоит сказать, что говоря о правах, необходимо учесть и то, что восприятие этих прав и стандартов должны быть равны во всех вопросах и у всех участников. Работа в целом заслуживает дополнительного внимания и одобрения со стороны научного сообщества. Благодарю авторов за столь интересную статью! С уважением, Евгений Королёв!

Sementsul Sergey

В статье четко просматривается анализ международного права и специфика функций дипломатических представительств Республики Молдова, в качестве самостоятельной отрасли права и науки, а в молдавских условиях подотраслью международного права, что подчеркивает автор научного труда.

Toivo Tanning

Very respected Roman Mereuţă and Natalia Suceveanu. The work is very hot topic and interesting. For best salutatory, Toivo Tanning
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