Week: 30.03. – 5.04.

2020

Establishing, suspending and breaking diplomatic

relations
IV. Diplomatic relations
IV.1. The notion of international relations
Diplomatic relationships are the political and legal relations established between
states and are characterized by the importance given to the subjects, the object and
purpose that they give.
These are not only simple relations among states that area working in a certain area
or another, but they represent a qualitative barometer of maturity and complexity that
exists between those states. Diplomatic relations are the most important set of relationships
between states, both by their political nature and by their complexity.
A generally accepted interpretation in the international arena regarding the importance
of diplomatic relations evokes the interdependence between the existence of these
relationships and the independence of a state. It is recognized that the absence of diplomatic
relations of a state with other states does not necessarily imply the lack of independence,
but, in some cases, it may indicate a limitation of the sovereignty of that nation.
The lack of diplomatic relations between two states cannot prevent them from
concluding bilateral agreements, nor collaborate in an international organization.
In practice, there can be met the situation of de facto recognition of a state by another
state through a declaration of expressing its availability to establish relations. These relations
are neither the scale nor the scope of those determined by the exchange of diplomatic
representation. Diplomatic relations have a permanent character, in direct dependence to the
existence of states, being set to last for an unlimited period of time.

IV. 2. Establishing diplomatic relations

Most times, the institution of establishing diplomatic relations is approached in
connection with the one establishing the diplomatic mission. But it is clear that they are two
distinct institutions which are not equivalent, being the reason why also the Vienna
Convention of 1961 draws a distinction between the two legal institutions.
 There is no general rule, universally accepted for the procedure of establishing
diplomatic relations neither in the Public International Law nor in the internal law of states.
Therefore, to clarify how the two states establish diplomatic relations they appeal to the
practice of the states, where the doctrine of international law concluded that the establishment
of diplomatic relations occurs only in the condition of the cumulative fulfilment of three
elements:
• The two states that establish diplomatic relations should have international
juridical personality
• States or their governments must have been already recognized
• There must exist an agreement to the conclusion of diplomatic relations between
the two states.
The quality of international law subject assigns to a participating entity to the
international life the ability to have rights and to assume international obligations and to
conclude related legal acts. In this context, it should be mentioned that between subjects of
international law and international legal personality there is an equivalence regarding the
legal-political content, the two mutually conditioning each other.
Appealing to the concepts and definitions used in Public International Law, we can
note that the main subject of international law is the state, then the people, in their capacity, as
bearers of inalienable and imprescriptible law, to decide their own destiny, the nations, in
their struggle for liberation and international organizations coming from a universally
accepted theory of the pluralism on subjects of international law. There can be remembered
also those matters of law which shall constitute exceptions such as the Holy See, Order of
Malta etc.
To those enunciated, it should be mentioned that, even if all the entities listed have the
status of subject of international law, they cannot be treated as being at the same level, as they
are not identical by nature or extent of their rights and do not have, regarding diplomatic
relations, the same relevance.
The character of premise of the existence of international legal personality for entities
participating in diplomatic relations is clear from the legal and political essence of the latter.
To establish diplomatic relations, there is required a legal document concluded on the basis of
mutual consent of the respective states.
By the appearance of any legal relationship, there should be ensured the fulfilment of
conditions of validity, and, therefore, the consent of states should come from the free
expression of their will as sovereign entities, bearing a legal capacity and full international
legal personality.
To those mentioned, it must be made clear that not every subject of international
relations is automatically subject of international law and, also, not all international relations
are necessarily diplomatic relations. The quality of Public International Law subject
implies the one of subject of international relations, but the reverse is not always valid.
Starting from the arguments presented, it can be concluded that diplomatic relations
are specific to states, as carriers of sovereignty and that have full international legal
personality. Consequently, all other categories of relations between subjects of international
law, such as states with international organizations, organizations with organizations, states
with authorities representing peoples, etc., are not of diplomatic nature themselves but are
only assimilated to them.
The need for states and governments to recognize each other is basically the
starting point in establishing diplomatic relations, since it is absurd to analyse the situation of
concluding diplomatic relations between two states that did not even recognize each other.
As it results from the doctrine of international law, along with the formation of the
state, there is also born the right of legation, that a state cannot exercise unless its government
is recognized by the state, that is to establish diplomatic relations. In addition, recognition, in
this case, must be de jure. A de facto recognition allows only economic and trade relations
or an exchange of unofficial or semi-official agents, since they do not necessarily have a
diplomatic status.
It can be said that the establishment of diplomatic relations is the effect of recognition,
both legal institutions taking place simultaneously or succeeding each other, while
recognizing precedes the establishment of diplomatic relations. The establishment of
diplomatic relations and even the establishment of diplomatic missions, explicitly and
solemnly, assume that there intervened an implicit recognition of the state that the diplomatic
mission belongs to. The international doctrine has also established that maintaining a
diplomatic mission in the territory of a state where the government has changed, has the legal
value of a recognition.
The role of premise recognition in establishing diplomatic relations indicates that they
do not always interrelate, but, as a general rule, the establishment of diplomatic relations
necessarily requires a prior recognition, while recognition does not attract in all situations
the establishment of diplomatic relations.
 The premise character of recognition is more obvious in the case of other subjects of
international law, such as governments being in exile, liberation movements or insurgents. In
these cases, recognition plays a determinant role, thus decisive for establishing diplomatic
relations.
It was noted that establishing diplomatic relations cannot be done only by mutual
consent of the states, by the uncorrupted expression of the sovereign states wills, and this can
only be achieved by concluding an agreement between them.
Out of the differences that manifest in the nature of recognition and of establishment
of diplomatic relations, there follow a series of consequences. Recognition is a political and
legal act that a state may resort to, without necessarily wanting to go further to the
establishment of diplomatic relations which is an eminently legal act. An agreement for the
establishment of diplomatic relations is not caused by the existence of any obligation in this
respect between states, constituting a discretionary legal act which depends on the two
executives.
In the context of the need for expressing the agreement of will of states for the
conclusion of diplomatic relations circumscribes also the political-legal content of the term
legation, specifically aspects related to the right of legation and the right of mission, which
are, in fact, the legal basis of the diplomatic report.
The agreement must reflect the desire of states to establish diplomatic relations, it
must be explicit and specific about the object it has. From this perspective, the conclusion of a
treaty which establishes diplomatic or consular relations is not relevant in itself, because
diplomatic relations arise from a specific agreement that has the object to establish diplomatic
relations and not the collaboration in one area or another.
The same logic applies, by analogy, also among consular relations, where the same
legal content is expressed through the terms of right of the consulate and the consular report.
The form that the agreement may take will be a solemn one, but not necessarily. It can
be achieved also through exchange of notes between the foreign ministers or between
ambassadors of the two states, being on charge in a third country or that are representatives in
an international organization.
One last comment on the agreement on the establishment of diplomatic relations
would be that it is only a framework agreement, which will be a starting point for other future
agreements such as the appointment of certain members of the staff, the granting of
immunities and privileges, setting up offices outside the diplomatic mission etc., or unilateral
acts that would regulate in detail already existing provisions, such as, for example, the tasks
of the mission.

IV. 3. Termination of diplomatic relations

If the institution of establishment of diplomatic relations requires a unique route in its
construction, the cessation of diplomatic relations can be achieved in several ways. We only
note the situations in which a state disappears from the world map or loses, in any other way,
its international legal personality, for example, through secession, division, etc. The most
often way of cessation of diplomatic relations met in practice is breaking or interrupting
diplomatic relations existing between the two states.

a. Breaking diplomatic relations. General considerations

Trying a classification of the causes leading to the severance of diplomatic relations, it
can be said that the reasons are violating a right, or political reasons. In the latter case, it is
very difficult to identify whether it is a real reason or just a pretext, the state hiding with
diplomacy its true intentions.
Among the most common reasons that led to the rupture of diplomatic relations we
can list the following: unilateral and discretionary act of the state, the act accepted in an
international organization or required by it, discontent generated by the unfriendly behaviour
of another state that develops relations with a third state, measure of breaking diplomatic
relations decided within an international organization etc. In connection with the latter case,
there must be distinguished the case of breaking diplomatic relations which are based on legal
rations, having, in this case, the character of a collective sanction in which the member states
meet the resolution of that organization or based on reasons that have no legal foundation and,
in this case, it has the character of a political pressures, such as not recognizing a government
etc.
A special case is the situation in which two states are at war, and consequently,
breaking of diplomatic relations is not an act of will, but a consequence of the new
situation arising between the parties, namely war. Also, the refusal to recognize an
unconstitutional government, a situation which is incompatible with the maintenance of
diplomatic relations, in which the states can react individually, in connection with other states
or following a decision of an international organization of which they are part.
Regardless of the reasons that causes it, the act of breaking diplomatic relations
has a legal-political character. The political aspect derives from the freedom that the state
has to choose when diplomatic relations are broken and to decide on its official reasoning, and
the legal connotation derives from the legal effects such an act has, which changes an existing
situation.
In relation to the manner in which diplomatic relations can be broken, it must be
stressed that this can only be express, as establishing diplomatic relations is done for an
unlimited time and there are no terms and no termination conditions thereof. On the other
hand, there cannot be put in question the right of a state to break off diplomatic relations, and
it cannot be obliged by any legal norm to pursue diplomatic relations with another state when
an irreconcilable dispute arose between them. In this context, it must be underlined that the
severance of diplomatic relations cannot be conditioned by anything, not even by the
existence of its motivation.
At the time of breaking diplomatic relations, there is no longer a need for agreement
between the parties, it representing a unilateral manifestation of will, emanating from a
single subject of international law. This does not mean that its effects are unilateral, but,
rather, the act of breaking diplomatic relations has bilateral effects and consequently both
diplomatic missions of states which are subjects of an act of breaking diplomatic relations will
be closed since there are interrupted the diplomatic relations which are a prerequisite for the
existence of diplomatic representations.
In practice, we meet the situation in which both states decide breaking of diplomatic
relations, but the second statement, according to the Public International Law is groundless,
since diplomatic relations have ceased to exist immediately after the first statement.
The situation in which there is a rupture of diplomatic relations that interests more
states, regardless of the manner concerted or the nature of the act, its nature is totally different
from the bilateral case. In this situation, it is the sum of individual acts and, even if it has a
collective aspect, if nevertheless has a unitary character, both institutionally and universality.
In very exceptional cases, ceasing of diplomatic relations can be made tacitly, only if
the sending government's actions are unequivocal, withdrawing all its diplomatic agents
without motivation, or in case of a refusal to recognize the new government.
The procedure of diplomatic relations rupture is the competence of the domestic law
that establishes the competent body which is competent to do so.

b. War - The most common way of breaking diplomatic relations

In the international legal doctrine it is accepted that war and the maintenance of
diplomatic relations are two mutually exclusive, incompatible things.
 The effects that war has on diplomatic relations, in general, are of breaking diplomatic
relations between warring states, irrespective of whether or not a declaration of war exists.
But not always, war also leads to the breaking of relations, but conditional, on the
absence of a declaration of war.
In this situation were China and Japan during the conflict in 1931-1932, when there
was no declaration of war and no diplomatic relations were broken. The reason for which
there was possible such a situation lies in the desire of the parties not to consider that there
have been violated the principles of the Covenant of the League of Nations and of the Briand-
Kellog Pact regarding war and where the two states were signatories. The same case is found
also later, in 1965, regarding the Pakistani-Indian conflict, on the Kashmir region.
There are situations when war has indirect effects on diplomatic relations with third
countries.
A separate case is the institution of truce involving the establishment of diplomatic
relations even if the state of war remains. An example is the case of Japan which after the
Second World War has not signed with the US any peace treaty, but they established
diplomatic relations. There are also rare cases, being exceptions to the rule that provides
breaking of diplomatic relations in case of war.

c. The situation of breaking diplomatic relations within an alliance

Related to the situation where several states decide, for various reasons, to break
diplomatic relations with another state, being in the same alliance or international
organization, it will take up the case of a concerted act.
Thus, breaking diplomatic relations sought by an international organization has the
character of a collective sanction against a member state which threatens one of the
international community members. Independently of the legal basis on which such acts are
done, whether they are based on national law rules, or those of international law, the
collective action differs from the institution of legitimate defence or retaliation, as it occurs in
the interest of the law and order in the community. Such action aims to maintain and/or
restore international peace, helping the aggressed state, addressing international public
opinion and isolating the aggressor state.
From this perspective, collective breaking of diplomatic relations has an executive
character and not a punitive one. For being in the situation of collective rupture of
diplomatic relations, the following elements must be met:
• The existence of a legal obligation of execution, which is addressed to the member states of
an international organization, through the superiority of the international body towards each
state;
• Punitive character of the measure applied collectively.
So, the decision of the collective body leading to the severance of diplomatic relations
is, in fact, applying in specific cases the general provisions of the constitution of the
international organization. In terms of juridical substantiating, it can be seen that if in case of
breaking diplomatic relations between two states, it is the discretion act of one of them, where
in case of collective action we are, to some extent, before a delegated competence of the and
the collective sanction has an institutional character.
In practice there were other ways of manifesting the concerted act of breaking
diplomatic relations, without the states that have used this legal institution to be in a position
to fulfil a decision of an international organization organ. An example of this is the moment
when the Israeli air force attacked the Arab states in June 1967, when some socialist states
broke off the diplomatic relations with Tel Aviv.
We deduce that unlike the situation analysed in international organizations, in the
latter case there is no obligation on the part of states to respond to the request for an external
factor, the organ of the international organization, it is about the affinity that the state has for
positions taken other countries on an international event.

IV. 4. The suspension of diplomatic relations

a. The suspension of diplomatic relations
The institution of diplomatic relations suspension can occur only when in a state there
is a fundamental change that creates a new legal situation. An example would be a
revolutionary change of government or the transition from monarchy to republic. Such
essential changes in the structure of the government and/or state affects one of the parties
implied in a diplomatic report, and the other party is in a position to recognize or not the new
form of government.
The solution is different as we are dealing with a revolution or a coup. Although in the
current international practice it is customary for the new government to notify the change that
has occurred, and, also, to demand recognition, the resulting government from a coup has no
interest to follow the same path, as it knows that it would put partners into a difficult situation
and, therefore, it follows the continuity theory of the state, which leads to maintaining the
existing diplomatic relations.
 If there is no an express recognition, there is, however, an implicit acknowledgment.
If this recognition does not occur immediately, the institution of suspension is
confused with the one of breaking diplomatic relations. A totally different situation exists
where recognition occurs immediately and, consequently, there is a resumption of diplomatic
relations or it is considered that they were never interrupted.
In both cases, the period during which the states evaluate changes in order to take a
decision, diplomatic relations were suspended following that, depending on the decision
made, to resume or, conversely, to definitively break them. If resumption, there will be
considered that its time comes at the beginning of the suspension period, covering all this
tperiod, and if diplomatic relations are broken it will be considered that diplomatic relations
were broken at the date of their suspension.
The reasons for which states choose to break diplomatic relations are different, either
because the resulting regime from the coup is felt deeply hostile, or because this regime is not
properly installed and will be maintained by foreign forced army, or it is considered that the
new regime must be punished, being considered unconstitutional and dangerous for the
international community.
The issue of recognition of a government is very important for the institution for
establishing and maintaining diplomatic relations, since diplomatic relations between the two
states are done through their governments. For this reason, not recognizing a government
leads to the automatic rupture of diplomatic relations.
The legal content of the institution of suspension of diplomatic relations is different
from the one of interruption of diplomatic relations because, unlike the situation of breaking
diplomatic relations, there is no need for a new agreement of establishing a diplomatic
mission. At the same time, it cannot be considered as either a continuation of diplomatic
relations, as the head of the mission needs to go through the accreditation procedure again. In
conclusion, the situation created is temporary and may be followed by either breaking
diplomatic relations or the tacit or express resumption of them.
Related to the subject of the government’s recognition, it is useful to mention that in
the UN, the non-recognition policy is used to express an international sanction.
In the international legal doctrine there are also listed several typical assumptions of
suspension of diplomatic relations, such as:
• The refuge of a legitimate government of a state, as a result of forced occupation of
its territory by a foreign army;
• Overthrow by a coup of a government to which the mission was accredited;
 • Political reasons that prevent normal functioning of diplomatic relations.

b. Legal consequences of breaking and suspending diplomatic relations

b.1. Legal consequences of breaking diplomatic relations.
If there occurs the severance of diplomatic relations, the classic conception states also
the closing of the diplomatic mission, and consequently, diplomatic agents and other members
of the mission will leave the territory of the receiving state.
Nowadays, there is recognized increasingly more the assumption that all members of
the mission or just a part of them, except for the ambassador, remain in post, a procedure that
resembles with recalling the ambassador or a part of the diplomats, without designating
someone ad interim affaires.
Regarding the privileges and immunities given, there it is noted that the inviolability
of diplomatic premises of the mission are maintained. From the same legal treatment also
benefit the archives of the diplomatic mission. Regarding the legal status of a diplomatic
agent, it does not cease when the severance of diplomatic relations occurs, which means that
its immunities subsist the institution of breaking diplomatic relations until its return to the
sending state that will be the only one that is provided with an account of its mission. The
legal basis of this approach is that security, independence and inviolability are very necessary
to the success of the embassy at its return and also its departure.
Of course they cannot take much advantage of that power, the diplomatic agent
needing to leave the receiving state in a reasonable time. This expression takes into account
the time needed for the diplomatic agent to put things in order and to cover the stages for
ending his mission in post.
The rule evolved both through the encoding documents of diplomatic law and also the
practice of the states is that throughout its stationing on the territory of the receiving state, a
diplomatic agent shall enjoy diplomatic privileges and immunities.
Referring to the status of citizens of the two states between which there has occurred
the rupture of diplomatic relations, the principle that applies is that the assets and rights of the
citizens on the territory of the other state remain unaffected, unless the host state shall not
adopt measures that it could take, and in the situation where diplomatic relations exist. Also,
in case of breaking diplomatic relations, there ends the concerned diplomatic protection, but
the rules regarding the rights of foreigners remain unaffected.
With regard to bilateral international treaties between the two states, they subsist the
institution of breaking diplomatic relations, but lose their validity if war comes. The exception
to this rule are only those treaties for whom their validity itself requires the existence of
diplomatic relations.
Economic, trade, finance relations and communications have, generally, a greater
autonomy and therefore are not affected by the severance of diplomatic relations, because in
the current form of organization of international life, the states are increasingly interdependent
in the mentioned sectors.
It is obvious that both breaking relations and their suspension are forms of temporary
or permanent termination of diplomatic relations, being necessary the redenomination of will
agreement of states for their resumption, which may consist in returning or restoring them.

b.2. Legal consequences of diplomatic relations suspension

The suspension of diplomatic relations is only a momentary interruption of diplomatic
relations, which may last as long as the obstacle remains against normal relations, and
diplomatic relations return to normality as soon as circumstances that situation that imposed
the suspension disappears. As a legal effect, throughout the suspension of diplomatic relations
period, they are maintained as they were at the time of suspension.
Therefore, to restore the situation to normality of diplomatic relations it is not
necessary the submission of credentials for returning the former head of mission to the post.
Credentials will be required only if the accredited state wants to appoint another head of
mission.

IV. 5. Representation of a state interests

a. The institution of diplomatic representation. Notion. Legal nature. Conditions.
This institution of public international law has known consecration under the name of
protecting power and played an important role in almost all wars that occurred in the
nineteenth century, and during the two world wars, where, by its application civilians and
prisoners of war could be protected and, also, there was assured a minimum of relations
between warring states.
The utility demonstrated over time the institution has made to be taken in its political
and legal content and adopted peacetime, is even enshrined in the Vienna Convention of
1961.
Currently, the use of protective power is generated by growing economic
interdependence between states, which inevitably maintains certain relationships even in the
absence of diplomatic relations. Based on these requirements, the political and legal content
has changed, from the humanitarian domain to the protection of political, economic and
private interests. It has also completed the original and it expands its scope and changes
continuously.

b. The conditions of establishing diplomatic protection.

To set up a protective power, there must be met several conditions.
First, the protective power must be chosen by the state that wants to be protected.
Obviously, in some cases, in this respect there will be certain limitations generated by each
specific state. For example, an Islamist state will head to an Islamist state, something which
constitutes an exception to the general rule applicable to most states, which concerned only
the general political criteria, focusing on their pragmatic side.
The election of a protector state will be based also on the mandate of protection,
whose content can be general, diplomatic and consular, just diplomatic or just consular or can
only resume to the safeguarding and protection of the represented state archives and the
protection of places.
Secondly, there must exist the agreement of the protecting power whose elected
government may accept or reject the proposal of the state that wishes to be protected or can
condition the acceptance from the express approval of the residence state, in which it is
accredited.
Finally, there must be asked the consent of the recipient state regarding the chosen
protective power, which it usually gives, expressly or implied.
Once the conditions mentioned are fulfilled, the protecting power asks its diplomatic
mission in the receiving state to take steps in order to take over the functions of the diplomatic
mission of power which sought for protection.
Since the legal nature of the institution of protecting power has not been clearly
defined in the doctrine, the representation finds its legal justification in the absence of any
contrary rule in the public international law that would ban a state to resort to the method of
representation. On the other hand, as a state may waive the diplomatic protection of its own
citizens, the state can also refuse a state protectorate if the diplomatic relations with another
country were broken.
In any case we place, whether it recourses to the protective power or not, in the
international law nowadays, every state has the duty to ensure a lifestyle to its own
citizens, to a minimum standard of civilization, basing it on the need for consistency that
must exist between public and private law, on the sovereignty of the state over its own
citizens or an individual's personal right.

c. Effective establishment of diplomatic protection.

The establishment of diplomatic protection follows a number of steps. First, once the
diplomatic mission of the protecting power receives the consent of its government, it will
contact the head of the diplomatic mission of the power which sought for protection
(premises, archives, property etc.). Upon the receipt of the mission inventory, it will proceed
in preparing a report with the inventory of records, passports, stamps, funds and bank
accounts, other assets, if this is agreed in the mandate of protection.
There is widely accepted the possibility that the protective power may be empowered
to act in its own premises, but in that case there must be prepared special places, or, with the
approval of the represented state, the protective power may use its premises.
Regarding the diplomatic mission of the protective power personnel, it must be
increased corresponding to the specific and volume of the activities of the state represented in
the receiving state. On this subject, it should be noted that the affected diplomats are not
subordinated to its government, but to the government of the protective state in order to carry
out their activities. The latter is the one that will be accountable before the protected
government regarding how he fulfilled its mandate of protection, whereas the representation
report is established between the represented state government and the represented state.
Currently, the practice of states knows a different protection system, the state that
would be in a position to claim protection continuing to work in the receiving state, acting in
this missions, at a low level of the represented the state. Diplomats working in these missions,
even if they do not have a head of mission, ambassador or a person in charge of ad interim
affairs, belong to the protected power, can get in touch directly with the authorities of the
receiving state, already operating in the premises of the old mission. This way of working can
be practiced only by an oral or sometimes tacit agreement between the two governments that
break diplomatic relations. For written confirmation there is used the process of verbal notes
exchange between the foreign affairs minister of the state that has broken diplomatic relations
and the mission that assumes the protection of interests of the other state.