4

Normally, diplomatic protection (as specifically immunity) is covered by the Vienna Convention on Diplomatic Relations. The way that treaty is phrased it's about bilateral relations, for example by referring explicitly to 'sending States' and 'receiving States'.

Suppose the President of the United States goes on a surprise visit to a warzone in the Middle East; are the president and his staff ever covered by some diplomatic protection? To make it an interesting question, let's consider the trip as follows:

  1. The US president visits Iraq. The US and Iraq have diplomatic relations but the president's visit is not announced and it's a surprise to the Iraqi government when Air Force One lands at Al Asad air base and the president disembarks.

  2. On the way back, the president decides he wants to surprise the president of France. Air Force One requests to land at Paris CDG airport without mentioning the president is on board (e.g. using some fake callsign). When they land it becomes clear the US president tries to enter France, but it's not clear if any form of diplomatic protection applies by default or if it's up to France to grant it.

Is the president and his entourage covered by the Vienna Convention during any part of this trip? Is there another international agreement that offers the president and his staff any diplomatic protection during this trip?

I chose the US, France, and Iraq as examples. I'm mostly interested in whether any treaties apply to unannounced travel by heads of state.

Improve this question
11
  • 2
    The Vienna convention does not include heads of state in the definitions of the classes of people to whom its protections apply.
    – phoog
    Jun 23, 2021 at 11:06
  • @phoog It does include whomever they designate, however, and does not prohibit them from designating themselves. It's not the intended use-case, but it's possible to reasonably read it as permitted.
    – William Walker III
    Jun 23, 2021 at 16:28
  • 1
    @WilliamWalkerIII I don't think the convention applies. Heads of state enjoy immunity under customary international law. It's separate from the convention. Traditionally, and under the convention, a diplomat enjoys no immunity unless accepted by the receiving state. That does not apply to the head of state. It would apply to the entourage, though.
    – phoog
    Jun 24, 2021 at 0:15
  • 1
    The title question asks about diplomatic protection. The body asks about diplomatic immunity. The two are distinct.
    – phoog
    Jun 24, 2021 at 0:28
  • 2
    The term "diplomatic protection" typically denotes a receiving state's obligation to safeguard the person and property of diplomats and diplomatic missions. To the extent that immunity can be said to be "protection," it is protection from interference such as politically motivated prosecution.
    – phoog
    Jun 24, 2021 at 0:48

1 Answer 1

Reset to default
1

With acknowledgement that Head of State (HoS) immunity is a matter of common practice rather than codified in international treaty per se, the answer is a qualified 'yes.'

In the first case, a Head of State visiting a military mission as part of their Command and Control duties, this ends up falling under one of two categories:

  1. The HoS is visiting an authorized military mission (such as a U.S. base on foreign soil), in which case the visit is subject to the terms of whatever agreement allowed for that base to exist there in the first place. Given the nature of military operations, the coming and going of military personnel cannot feasibly be restricted from such bases, and so the Commander in Chief here is operating as military personnel in this respect.
  2. The HoS is visiting an unauthorized (by the receiving state) military mission, in which case a state of active hostilities is already underway. In such cases, enforcement of the rules against such an HoS visit are enforced by the "You and what army?" standard. Since the HoS is visiting a military installation, we can infer the answer to that question to be: "Nevermind, do whatever you like."

In the second case, "Surprise Mr. Prime Minister:" The HoS is identified as a member of protected persons under the 1973 Protection of Diplomats Convention, Article 1, 1(a):

"Internationally protected person" means: a Head of state...

This, in addition to the common practice (implied by the 1969 Convention on Special Missions, Article 21) of recognizing HoS as diplomatic personnel, means that it is extremely unlikely that there would be consequences for the HoS' actions.

HOWEVER:

France is under absolutely no obligation to receive the President, or even let him get off the plane. He didn't call ahead, and so what he's basically doing is committing a crime - and there are courts that have jurisdiction that reaches past diplomatic or even sovereign immunity, and France would be within its rights to call the President to account for his actions in the ICC.

This is why getting preclearance before sending a diplomatic mission is important.

Improve this answer
7
  • 2
    This seems to hit the right spots except for the not calling ahead amounts to a crime part. Can you elaborate a bit on that? Is it really a crime or just undiplomatic?
    – JJJ ♦
    Jun 23, 2021 at 18:48
  • 2
    Depends on the jurisdiction. But falsifying passenger manifests is illegal in the United States, for example. That aircraft had to forward it's manifest to the receiving nation's customs authorities before it was cleared too land. That's at the absolute minimum. There's probably immigration laws being violated, and so on. If you didn't call ahead, you haven't been granted consent for your diplomatic mission, at which point most of your protections drop away because you're no longer acting in your capacity as HoS.
    – William Walker III
    Jun 23, 2021 at 18:59
  • 1
    Yea I wonder how it goes in practice. I guess even on surprise visits they would communicate the visit just before landing (or even as soon as the president has decided to want to go there) and then the formalities are probably dropped (because it's then a diplomatic visit and there's little to gain by prying). YPM has an interesting episode about this where the President of France intends to present the Queen of England with a puppy, circumventing quarantine. In the end, the importance of the relation probably prevails over rules-lawyering. ;p
    – JJJ ♦
    Jun 23, 2021 at 19:07
  • 1
    International relations generally happens in normative, rather than prescriptive spaces, yep. The final arbiter of disputes in that sphere is war.
    – William Walker III
    Jun 23, 2021 at 19:20
  • 2
    The civilian commander in chief is not "military personnel" under the general provisions of international law. Also, the 1973 convention concerns diplomatic protection, not diplomatic immunity (the question confuses the two, but they are distinct matters).
    – phoog
    Jun 24, 2021 at 0:21

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .