Laws of diplomacy and attitudes of stronger Countries

The core of International Law is respect for the rights of diplomats. The standard behaviors of States in this area were well spelled out in details, applied universally and taken seriously. Since, the Vienna Convention on diplomatic relations and the Vienna Convention on Consular relations in 1961 and 1963 respectively, it has been considered unjustifiable to harm an emissary sent from another state. The status of embassies and of an ambassador as an official state representative is explicitly defined in the process of diplomatic recognition. Once they are accredited, the individual enjoys immunities and privileges as a foreign diplomat in the host country.  

An attack on diplomats or embassies is legitimately considered as an attack on the territory of the state itself. For this reason explains why Iraq couldn't confiscate the premises of US embassy in Kuwait in 1991 after Saddam Hussein claimed that Kuwait as a state no longer exists, though Iraq's forces could easily overrun the facility. On the ground of embassy, rules and laws of the sending state of emissary apply not the receiving state's laws.

Nevertheless, stronger countries can sometimes abuse diplomatic rules by punishing diplomats from weaker countries because the stronger has the instruments and the resources to manipulate the weaker, and its where the moral values of foreign policy is ridiculed. Neorealist paradigm emphasizes the survival of the fittest as many foreign policy makers embrace the adoption of that model as a choice in foreign relations.  In 1997 France persecuted a diplomat from Zaire for reckless driving. In 2011 a US diplomat Raymond Davis employed at US Consular in Lahor was arrested by Pakistani law enforcements criminally charged him with double murder, however, US government erroneously threatened Pakistani government not to persecute the diplomat because of his diplomatic immunity. President Brack Obama said about the incident; 'there's a broader principal at stake I think we have to uphold'.  Despite the fact that the Pakistani Law practitioners argued that grave crimes have no protection under the diplomatic conventions that underlines article 41 (1) of the Vienna Conventions on Consular relations; 'Consular officers shall not be liable to arrest or detention pending trial, except in the case of gave crime and pursuant to a decision by the competent judicial authority', yet he was  released under the law of that Convention.  And in 2014 Kenya briefly detained Somali diplomat without giving proper accusation whether the diplomat abused the receiving state's principles of diplomatic engagement.  Subsequently, the Federal Government of Somalia (FGS) in protest of Kenya's mistreatment has recalled its emissary in Nairobi for consultations which is the right approach for resolving diplomatic disputes.

From the perspective of Kenyan government, Somalia as a nation-state is currently extremely in turmoil and chaotic in the nature of its domestic and foreign policies. Leaders in Villa Somalia can easily be manipulated to accept demands without concessions from stronger country in the region like Kenya. Kenya also presumes that Somalia has not the capability (If it has the willingness) to pursue embargo of the imported commodities from its country.  It similarly, assumes that the country was torn apart by clan affiliated fiefdoms each claiming monopoly over certain piece of land. And each fiefdom is enthusiastically seeking mutual relationships with the neighboring countries by passing over the central government. So, in this regard Kenyan decision makers convinced that the Central authority of Somalia has no legitimate in the eyes of its regional entities. Further, Kenya rightly calculated that its Army are already in the territory of Somalia whom initially crossed the border without the consent of a Somali government, and unwillingly or unable no action taken by the later followed thereafter. So, Somalia is the weaker of the weakest state in the region.

By rationally implementing those polices, Kenya now takes further step by sending a Consulate-General to a region of Somalia which is contentious among many Somali communities.

So, what does the Vienna Convention on establishing of Consular Relations says? 

First and foremost, Kenyan government neither publically denied nor secretly liaised with the FGS for the opening of a Consular post in Jubba region of Somalia. However, the circumstances around this matter is not actually irrefutable for many reasons. First, Somali President H.E Hassan Sheikh Mohamud in a press conference at his office neither denied nor confirmed about the existence of the issue of the Consulate, but in other way underlined that his administration is investigating the issue. He further underscored that the Kenyan government didn't communicate with his government about any matter related to the consular district. Second, some Private owned Somali TVs showed pictures of Ahmed Madobe, leader of the Jubba Interim Administration receiving the Kenyan diplomats from Kismayo Airport. Third, a very informed MP from that region confirmed the author that the Consulate-General was demanded by the Administration of Jubba. He said; 'we asked for the Consulate'; (annaga ayaa dalbannay)! 

Whatever the rhetoric about the establishment of this Consular post is, there are rules to be followed by all states regardless of its army strength, wealth, size, prestigious or any other aspects of national characteristics. States must apply all the rules, norms and conducts of diplomatic business alike whether the country is stronger or weaker.

The Vienna Convention on Consular Relations says:

Article 2 (1),  'The establishment of consular relations between two states takes place by mutual consent';

And Article 4 (1), which is the establishment of consular post likewise says; 'A consular post may be established in the territory of the receiving state only with that State's consent'.

where Article 4 (2), emphasizes this instruction. 'The seat of the consular post, its classification and the consular district shall be established by the sending state and shall be subject to the approval of the receiving state'.

All the conventions and conferences concerning about promotion of friendly relations among states equally oblige countries to respect  Sovereign equality of States. For the maintenance of regional and International peace and security, States are widely expected  to interject  foreign policies based on moral values. 

By: Abdulkadir Suleiman

sabriye04@gmail.com 

"Didiinglay dhamaateih"