diplomatic – Hybrid Learning

DIPLOMATIC MISSIONS

Batoota — Tue, 06 Nov 2012 10:06:42 +0000

DIPLOMATIC MISSIONS. An official delegation from one country to another, a diplomatic mission cal. be either temporary or permanent. The members of a diplomatic mission have diplomatic status, the most important element of which is diplomatic immunity. Although Muslim and non-Muslim diplomatic missions are virtually identical, they evolved quite separately.
The concept of a diplomatic mission representing one independent ruler to another independent ruler is not entirely compatible with Islamic political theory. The universalist nature of Islam assumes a single ummah (community of the faithful) under one law and administered by one government. Theoretically, therefore, no diplomatic missions were needed within the Islamic world, for all were presumably under a single ruler. As for non-Muslim states, the necessity of diplomatic missions was considered to be only temporary, until the whole world came under the dominion of Islam; non-Muslim states were not considered to be moral or political equals of the Islamic state.
In practice, Islamic diplomatic missions, both to other Muslim states and to non-Muslim states, have existed since the time of the Prophet. Muhammad himself used them to propagate the faith. As the Arab-Islamic empire grew in size and power, the necessity for diplomatic missions grew apace. The caliphs in Damascus and later in Baghdad were in virtually continuous diplomatic communication with neighboring states, particularly with their enemies, the Byzantines and the Franks. The `Abbasid caliph Harm al-Rashid developed extraordinary diplomatic ties with the Holy Roman emperor, Charlemagne, and the two regularly exchanged gifts and dispatched diplomatic missions. In periods of Islamic political decline, diplomatic missions between Muslim rulers also increased.
The basic functions of Islamic diplomatic missions have changed very little over the centuries: negotiating treaties, arbitrating disputes, attending state ceremonies, and also collecting intelligence. Mufawwadah means “negotiation” in Arabic, and a mufawwadiyah is a legation, an old form of diplomatic mission. The chief of mission was a mufawwad (minister). Another term used for a chief of a diplomatic mission was rasul (messenger).
Historically, the most important role of an Islamic diplomatic mission was probably arbitration. The Arabic for the more contemporary term, “embassy,” is sifarah, and the chief of mission is a safer (ambassador). Both terms have the connotation of “mediation” or “arbitration,” reflecting the greater emphasis in Islamic law on arbitration rather than establishing guilt.
Arbitration was practiced in the Middle East long before the advent of Islam and was simply absorbed into the new religion. The prophet Muhammad saw himself (and by extension, his successors) as an arbitrator, and the Qur’an admonishes the faithful, “If you differ, bring it before Allah and the apostle.” (surah 4.59). The same principle was applied to arbitrating between nations.
In the early days of Islam, diplomatic missions were exchanged for the purpose of negotiating or arbitrating a particular issue. Although some missions stayed months or even years in a foreign capital, few were permanent in the contemporary sense. Maintaining permanent diplomatic missions was basically a European practice that developed around the sixteenth century. By the end of the sixteenth century, resident European envoys were accredited to the Ottoman sultan in Constantinople, and by the eighteenth century, Ottoman envoys were resident in Europe.
With increasing European commercial and political penetration in the Muslim world, starting in the eighteenth century, diplomatic relations increased, but not necessarily through the medium of diplomatic missions. With the political decline of the Ottoman Empire, European states established independent ties to the emerging, although not yet technically independent Arab states. Farther east, commercial firms played the role of diplomatic missions. British diplomatic relations with the Safavid Empire in Persia and the Mughals in India, for example, were initially carried out through the British East India Company rather than the Foreign Office. Even after the British Government established more extensive government-to-government relations in the nineteenth century, they were mainly handled by the Colonial Office rather than the Foreign Office.
By the nineteenth century, European colonialism had so permeated the Muslim world that the utility of diplomatic missions had declined measurably. Of particular importance was the capitulations. These were agreements granting special judicial privileges to resident Western nationals engaged in commerce in Muslim countries nominally under the Ottoman Empire. These rights, however, were administered by Western consuls, not through diplomatic missions.
Following World War I, when most Muslim countries had regained at least token independence, resident diplomatic missions again spread throughout the Muslim world. But the war also ended the Ottoman caliphate, and the universalist nature of Islamic political theory no longer represented political reality. Western rules of diplomacy, based on sovereign nation-states, became universally accepted throughout the Muslim world.
Even these practices have not been static, however. After World War II, the previously sharp distinction between diplomatic functions and consular functions virtually disappeared. Today, consular functions, which include granting visas to foreigners wishing to visit one’s country, seeking the welfare and protection of one’s citizens abroad, and promoting commercial relations, are performed in diplomatic missions, just as traditional diplomatic functions, such as political and economic reporting, are performed in consulates. Depending on the country, consular officials are now regularly granted diplomatic immunity, which was not a traditional practice in the West.
The raising of diplomatic missions to the status of embassies is also virtually universal. Traditionally, missions to less important countries were legations, and the chiefs of mission held the title of minister, whereas the major missions were embassies and the chiefs of mission held the title of ambassador. After World War II, however, because of the sensitivities of the smaller,Third Worldcountries, virtually all countries are now represented by ambassadors, and their missions are designated as embassies.
[See also Capitulations; Diplomatic Immunity; International Law; International Relations and Diplomacy.]
BIBLIOGRAPHY
Hitti, Philip K. History of the Arabs: From the Earliest Times to the Present. 9th ed.London, 1967. Classic account of Arab history, with many references to diplomatic relations with the West. Khadduri, Majid, and Herbert J. Liebesny, eds. Law in the Middle East.Washington,D.C., 1955. See, in particular, Khadduri’s chapter on international law.
Lewis, Bernard. The Emergence of ModernTurkey.New York, 1961. Another classic, which includes discussions of Ottoman diplomatic relations.
Shaybani, Muhammad ibn al-Hasan. The Islamic Law of Nations: Shaybani’s Siyar. Translated by Majid Khadduri.Baltimore, 1966.
DAVID E. LONG

DIPLOMATIC IMMUNITY

Batoota — Tue, 06 Nov 2012 10:04:08 +0000

DIPLOMATIC IMMUNITY. With a long tradition in the customary practices of nations, diplomatic immunity, originally justified on the basis of theories of sovereign representation and exterritoriality, is now accepted as a functional necessity. Customary rules of diplomatic immunity have been codified authoritatively by the Vienna Convention on Diplomatic Relations (1961) and the Vienna Convention on Consular Relations (1963), which have been ratified by most nations. At a minimum diplomatic immunity guarantees the inviolability of diplomats by protecting their persons, property, and premises. The scope of coverage and the extent of immunities accorded often involve intricate legal issues.
Modern diplomatic immunity finds strong support in Islamic historical practices and juridical writings. Medieval Muslim jurists argued that the protections afforded to diplomatic envoys or emissaries is necessitated by maslahah (public welfare) and by the commands of the Prophet. The Prophet sent and received several envoys and is reported to have strictly forbidden their molestation.
An envoy, called rasul or safir in Islamic discourse, performed a variety of functions, including negotiating treaties, attending coronations, conciliating differences, or ransoming captives. According to Islamic law, envoys sent to Islamic territory were entitled to safe conduct without a specific grant of aman on presentation of their papers of commission. Their persons and property were immune, and they were exempted from taxation as long as they did not engage in trade. Muslim juridical writings contain elaborate rules regulating the reception of envoys. There is also a wealth of administrative treatises outlining the proper criteria for sending or receiving emissaries.
The Umayyads (661-750) continued the practice of the Prophet in sending and receiving envoys. However, diplomatic intercourse became more significant in the `Abbasid period (749-1258). The Fatimids (909-1171) and Mamluks (1254-1517) increased the practice further by sending envoys to Europe and Central and East Asia.
Largely because of expanding commercial relations, diplomatic representation witnessed a dramatic increase in the sixteenth century. Diplomatic envoys for the most part continued to be sent on a temporary basis with a specific goal in mind. By the end of the sixteenth century, however, several European nations had established resident missions in Ottoman territory. The Ottomans established permanent embassies in Europe in the eighteenth century.
The sixteenth century also witnessed the beginning of the capitulations regimes, which were commercial treaties granting Western nationals certain immunities from the criminal and civil jurisdiction of the host state. By comparison the capitulations granted much broader immunities than those granted by the Vienna Conventions and Muslim nations often considered them humiliating.
Separate treaties, such as the Treaty of Kiiqiik Kaynarca (1774), article 27 betweenRussiaand the Ottoman Empire, and the Treaty of Dardanelles (1809), article 7 betweenBritainand theOttoman Empire, afforded specific protections to diplomats on a reciprocal basis.
By the 1940s the capitulations had been abolished. Nevertheless, by the 1960s most Muslim nations had acceded to the Vienna Conventions. Muslim nations have maintained a good record in observing diplomatic immunities. Breaches such as the hostage crisis inIran, which received a great deal of attention, have been infrequent. Nevertheless, the main issue confronting Muslims at the present time is that Islamic law is not entirely consistent with the Vienna Conventions. For example, according to the majority opinion in Islamic law, diplomats are liable for crimes and torts committed in the host state. Muslim nations, to a large extent, resolved the inconsistency by considering themselves bound by the Vienna Conventions regardless.
[See also Capitulations; Diplomatic Missions; Hostages; International Law; International Relations and Diplomacy.]
BIBLIOGRAPHY
Bassiouni, M. Cherif. “Protection of Diplomats under Islamic Law.” American Journal of International Law 74 (1980): 6o9-633. The only source specifically addressing the subject, but contains certain inaccuracies.
Ghunaimi, Mohammad Talaat al-. The Muslim Conception of International Law and the Western Approach.The Hague, 1968. Contains a useful discussion on the history of diplomatic conduct.
Khadduri, Majid. War and Peace in the Law of Islam.BaltimoreandLondon, 1955. Remains a useful reference source and contains a section on diplomatic immunity.
Mahmassani, Sobhi. “The Principles of International Law in the Light of Islamic Doctrine.” Hague Recueil (Hague Academy of International Law, Recueil des Cours) 117 (1966): 201-328. Besides being a very insightful study, it contains a useful section on diplomatic immunity.
Mottahedeh, Roy P. “Iran’s Foreign Devils.” Foreign Policy 38 (Spring 1980): 19-34. Excellent study of the hostage crisis inIran. Reviews Shi’i rules on diplomatic immunity and the history of capitulations inIran.
Shaybani, Muhammad ibn al-Hasan. The Islamic Law of Nations: Shaybani’s Siyar. Translated by Majid Khadduri.Baltimore, 1966. One of the very few translations of an Islamic legal text on international law.
KHALED ABou EL FADL