|Volume No. 1 Issue No. 81 - Tuesday May 16, 2006
|"Case Concerning Violation of the Vienna Convention on Diplomatic Relations
Dominica v. Switzerland
Professor Max Hilaire, Ph.D
On April 26, 2006 Dominica instituted proceedings before the International Court of Justice (ICJ) against Switzerland for alleged violation of the Vienna Convention on Diplomatic Relations, which Dominica alleges Switzerland breached as a result of its refusal to recognized Mr. Roman Lakschin, a “naturalized” Dominican of Russian heritage, as Dominica’s Ambassador to the United Nations Office in Geneva, its Specialized Agencies, and the World Trade Organization (WTO).
Dominica claimed in its filing that Switzerland had breached its obligations under the Vienna Convention on Diplomatic Relations of April 18,1961, the Headquarters Agreement between Switzerland and the United Nations of June 11,1946, the Agreement on Privileges and Immunities of the United Nations between Switzerland and the United Nations of April 11,1946, the Convention on Privileges and Immunities of the United Nations February 13,1946, as well as principles of customary international law.
Dominica therefore asked the International Court of Justice to adjudge that Switzerland indeed violated its international obligations under the aforesaid treaties and conventions.
Dominica’s claim raises a number of pertinent legal issues that the public should be aware of. The first concern is whether Dominica acted in good faith when it acceded to the Compulsory Jurisdiction Clause of the Statute of the ICJ, [Art. 36 (2)], and the Optional Protocol to the Vienna Convention on Diplomatic Relations, both of which were deposited with the Office of the Secretary General of the United Nations on March 17th, a few weeks before Dominica filed its claim before the ICJ.
The second concern has to do with the actual dispute between Dominica and Switzerland, and Switzerland’s right as a sovereign nation to reject the accreditation of any person attached to diplomatic mission on its territory. Finally, is the issue of the genuineness of Mr. Lakschin’s Dominican nationality and his links to the state he claims to be representing.
Under the Vienna Convention on the Law of Treaties of 1969, only the Head of State or his designee is duly authorized to sign treaties on behalf of the state. For a treaty to become law it must be ratified by the national parliament or follow procedures established by the constitution.
I am not sure the manner in which these two treaties were ratified is consistent with constitutional requirements. More importantly, states negotiate and sign treaties on the principle of pacta sunt servanda (good faith). It is obvious that the decision to accede to the ICJ Compulsory Jurisdiction Clause and the Optional Protocol to the Vienna Convention on Diplomatic Relations was done solely with the intention of filing the above case without taking into consideration the future legal implications for Dominica.
Hence one questions the motive of the Minister of Foreign Affairs for rushing to submit the accession documents to the Secretary General of the United Nations, and for filing this case. The matter was done so haphazardly that press inquiries to Dominica’s Mission to the United Nations could not be answered because the mission had no information about the case.
It seems to me that Switzerland would have a good case to challenge the good faith intention of the Government of Dominica.
The second issue raised by this filing is whether a dispute exists between Dominica and Switzerland. Under Article 9 of the Vienna Convention on Diplomatic Relations:
(1) The receiving State may at any time and without having to explain its decision, notify the sending State that the head of the mission or any member of its diplomatic staff of the mission is persona non grata or that any other member of the staff of the mission is not acceptable. In such a case, the sending State shall, as appropriate, either recall the person concerned or terminate his functions with the mission. A person may be declared persona non grata or not acceptable before arriving in the territory of the receiving State.
(2) If the sending State refuses or fails within a reasonable period to carry out its obligations under paragraph 1 of this Article, the receiving State may refuse to recognize the person concerned as a member of the mission.
Switzerland has basically invoked it rights under the Convention by refusing to recognize Mr. Lakschin’s accreditation as ambassador to the United Nations Office and the WTO. Switzerland also acted within its rights as a sovereign nation and did what other nations, like the Russia and Ireland, have done in the past.
Russia rejected Mr. Lakschin’s credentials twice, once under the James government and more recently under Skerritt’s government. The Republic of Ireland also rejected the credentials of a Belgian national appointed by Dominica to be its ambassador to Ireland.
As such Dominica cannot say that Switzerland is in breach of its international obligations. Simply put, Dominica does not have a case and the legal arguments made in its application before the ICJ is not sustainable.
Under the Headquarters Agreement between Switzerland and the United Nations, Switzerland retained its sovereign right to determine who can enter and remain on its territory. Such a right is governed by the national laws of states and is not subject to international regulation.
The host country can at any time revoke the accreditation of a foreign diplomat on its territory, whether the diplomat is accredited to a foreign embassy or to an international organization. By rejecting Mr. Lakschin’s status as Dominica’s ambassador to the UN and WTO, Switzerland violated no law and acted perfectly within its legal authority.
The Swiss authorities can determine that Mr. Lakschin is in fact a “businessman” and not a “diplomat.” They do not have to provide Dominica with any explanation for their action. Mr. Lakschin’s presence in Switzerland may be a threat to Swiss national security, or he may be involved in activities that Swiss authorities consider unlawful or unethical.
Under the Headquarters Agreement between Switzerland and the United Nations, Switzerland must simply notify the United Nations of its decision not to recognize Mr. Lakschin’s accreditation without giving a reason.
Mr. Lakschin’s status as an envoy for Dominica, a country he has no genuine link to, may have raised suspicion in the eyes of Swiss authorities and gave them reasons to reject his accreditation. In the world of international diplomacy it is unusual for a country to appoint someone with no cultural, ethnic or geographical links to the state and its people as its ambassador.
This is a practice that the previous government started and this government has continued without being mindful of the international legal implications. The Swiss authorities are probably more aware of Mr. Lakschin’s activities than the Government of Dominica and may have determined that his activities are not consistent with the conduct of a diplomat.
The Government of Dominica should have cooperated with Swiss authorities to discover the true Mr. Lakschin before filing a case on his behalf. Dominica does not have a mission in Switzerland and its United Nations activities are conducted in New York.
There is no need for Dominica to appoint Mr. Lakschin unless the government is complicit in his non-diplomatic activities. Mr. Lakschin is not a “true” citizen of Dominica and should not be representing Dominica abroad.
The Lakschin case, as I call it, should never have been filed. It shows the poor legal advice the government received prior to filing its case. This case is an embarrassment for the government and should be withdrawn immediately.
Also, those responsible for filing this case should be discharged of their governmental responsibilities. Additionally, an independent inquiry should be launched to determine whether anyone violated the laws of Dominica in filing this frivolous case without the full consent of the government. The motive of those who filed this case on behalf of Mr. Lakschin should also be investigated.
Finally, the practice of this government in appointing foreign nationals as ambassadors for Dominica and in issuing diplomatic passports to foreign nationals must stop. There are enough qualified Dominicans who can assume such diplomatic positions that we do not need to “out source” our diplomatic services to people of other nationalities.
This strikes me as a new form of colonialism. The Government of Dominica does not know the background of these people who it appoints as ambassadors and what activities they are engaged in once appointed. These individuals and their handlers in the government are using the public trust for private gains.
They should be reminded that they are not immune from prosecution for abuse of power or for engaging in corrupt practices. There is nothing more insulting to the people of Dominica, especially those living overseas, than to know that the people representing their country abroad is a non-Dominican.
The diplomatic fallout from this case should be a warning to those involved in the unscrupulous activity of selling passports and appointing foreign nationals as ambassadors. They should immediately discontinue this practice before it creates further embarrassment for Dominica and Dominicans. It could lead to criminal prosecution in the future.
Dr. Max Hilliare is a Professor of International Law & Chair at the Department of Political Science & International Studies, Morgan State University, Baltimore, Maryland, USA