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Vladislav Yuryevich Surkov

Vladislav Yuryevich SurkovSurkov

POLITICS
2012-11-01
Belarus and the Vienna Convention
 

A month ago, during the parliamentary elections, Belarusian authorities were blamed for violating the Vienna Convention on Diplomatic Relations for their refusal to accredit Belarusian election observers in the embassies of Belarus. What is the background of such a refusal and what do Belarusian diplomats say about the Vienna Convention? A report by Olga Dryndova

About a month ago, two articles emerged on Belarusian internet portals belaruspartisan and spring96, where Belarusian authorities were blamed for violating the Vienna Convention on Diplomatic Relations of 1961. The reason for such a brave accusation was the officials’ refusal to accredit Belarusian election observers, directed to observe the parliamentary elections in the embassies of Belarus. 13 observers tried to get accreditation in eleven states.

Embassy officials referred to the new Regulation of the Central Election Commission on elections and referenda, according to which Belarusian national associations can only send their observers to polling stations, located within the territory of Belarus. Belarusian human rights defenders insist that the territory of embassies should be de jure understood as the territory of Belarus. It took the Ministry of Foreign Affairs more than 20 days to clarify the situation.

A highly disputable question

 

Who has background in international relations may have a deep conviction that embassies possess diplomatic immunities and are, thus, in some way “little enclaves” under the jurisdiction of the sending state. In fact, this question turns out to be rather disputable. There are no provisions in the Vienna Convention that directly refer to embassies as the sending state’s territory. Comments of experts on the issue are often confusing and do not cast the light on the problem.

In this respect, three concepts might be interesting for understanding the situation. According to the “extraterritoriality concept”, embassies are exempt from local law and enjoy a special status; therefore, they should in almost all respects be treated as being part of the territory of the sending country. Followers of the second concept label embassies as “quasi-territories”, along with space objects, sea vessels and aircrafts with the state flag. Finally, advocates of the principle of the sovereign equality of states, secured in the UN Charter, consider the embassies’ premises the sovereign territories of the host countries. In line with this approach, embassies are rather business offices protected under the Vienna Convention.

Confusing comments of the diplomatic officials

To clarify the situation, one of the observers made an official inquiry to the Ministry of Foreign Affairs of Belarus. The followed answer makes it undisputable that Belarusian embassies are not part of the territory of Belarus. Such a clear answer could have put an end to the discussion, if it were not for the misleading argumentation of many Belarusian diplomats. In respect to the diplomatic workers, the author of the article will not specify their names and host countries; still, some facts are worth mentioning.

On the day of observers’ accreditation three diplomats did not manage to give a straight answer to the question of the embassies’ legal status – the place of their everyday work. Four diplomats out of eleven even gave the “wrong” interpretation, taking into account the official answer of the Ministry: they either admitted that embassies should be understood as the territory of Belarus, or their explanations gave evidence they admitted it. One diplomat reported that the embassy’s premises were at the same time part of Belarus’ territory and that of the host country. Others took the question for a provocation and asked observers to leave the embassy. Observers could only distinguish four answers, which coincided with the interpretation of the Ministry of Foreign Affairs.

Some arguments of the diplomats sounded very interesting, though, quite reasonable: if embassies were Belarusian territory, one would have to pass through customs control every time, when entering the building. All in all, many diplomats seemed not to be aware of the appropriate interpretation of the Vienna Convention and returned confident only after a short telephone consultation with the Central Election Commission. All of them reported they had directions from the Commission not to accredit the observers.

Why forbid to observe abroad?

Election observation abroad already took place during the presidential elections in 2010: at that time it was fully legal. The number of potential voters abroad is much smaller than in Belarus, where observers work regularly. Why ban it in 2012? A possible explanation would be that the Central Election Commission just decided to decrease the number of the unwanted observers. Given the constant failure of elections in Belarus to meet democratic standards, it doesn’t come as a surprise.

Before 2012, the easiest way to observe abroad was to get reference from a Belarusian party or organization. With the new regulation observation on behalf of a party or an organization is now possible only in Belarus. There is still a singe possibility to become an observer abroad: one can gather ten signatures of Belarusians registered at the embassy and having a residence permit for more than a year. But procedurally, it is much more difficult than just getting a reference.

Who is right in the end?

It is difficult to give a definite answer. Considering the letter from the Ministry, the refusals were legally grounded and Belarus did not violate the Vienna Convention. At the same time, the mentioned above new regulation appears to be inconsistent with Belarusian electoral legislation, which guarantees the principles of openness and publicity during elections.

The new regulation makes it impossible to send observers from Belarusian organizations and parties abroad. This could be understood as the violation of the principles of openness and publicity: election commissions, working in the Belarusian embassies, operate under the same legislation, as commissions within the territory of Belarus. Therefore, there can be no restrictions of any kind for the work of Belarusian observers abroad.

Not to let the system relax

The incident with the observers’ accreditation was not only about the question of the legal status of embassies, but also about the readiness of state officials to follow directions from above, even if not all of them could logically and legally explain their decisions. This has shown once again that any legal or illegal possibility is used by the Belarusian authorities to avoid any kind of bottom-up control. Nevertheless, such citizens’ initiatives should be always welcomed, since they don’t let the system ignore the minimal standards of law and common sense.