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Undiplomatic costs

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Jemy Gatdula

Being Right

Undiplomatic costs

It was Robert Frost who said that “diplomacy is the art of letting somebody else have your way.”

It’s a good characterization really and embodies the truth of that noble occupation.

Diplomats are there to serve their country and its interests (not some abstract “international community” or nebulous “international law”).

And if one can do that while making the other countries feel good about themselves, without resorting to word wars, then all the better for obvious reasons.

Because behind the interminable parties and cocktail receptions that our ambassadors are burdened with, the objectives are essentially the same: to advance our country’s interests, and protect the country and its citizens.

Having said that, it wouldn’t do to violate the rights (and laws) of the other country. After all, other countries are inherently entitled to defend itself and its citizens. To orchestrate a smooth coordination of rights is another task of diplomats.

Yes, there’s nothing wrong with trying to rescue our citizens abused in another country (it’s actually a duty), so long as we don’t humiliate that country while doing so. Discreetly done, most likely that country will just look the other way.

One doesn’t need an international relations MA/PhD to recognize the difference between the State and the private citizens doing the abusing.

In any event, if there’s evidence of “effective control” by that State over the abusive private individuals, then our country can file a diplomatic protection complaint.

The problem with humiliating another country unnecessarily is it opens up our country and citizens to retaliation (legal or not, including economic and political measures, as well as actual physical harm), not only by the country we insulted but also its State allies, including those sharing the same religion or ethnicity.

Of course, if one is caught doing an internationally wrongful act, the logical thing to do is soothingly try to get it behind us as quickly as possible.

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Declaring the other country’s officials as “reneging on their commitments” (essentially calling them liars) or even threatening military action (considering we were wrong in the first place) is not the most intelligent thing to do.

Using the embassy to stage a wrongful act in another country renders the Philippines vulnerable (aside from retaliation or countermeasures) to censure or sanction at the United Nations (General Assembly or Security Council) or international groupings (e.g., Organization of Islamic Cooperation or the Organization of the Petroleum Exporting Countries), as well as a diplomatic protection case filed with the International Court of Justice (where we invitingly have a standing Optional Jurisdiction clause).

Possible legal charges include violating Article 41 of the 1961 Vienna Convention on Diplomatic Relations (“It is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of that State.”), as well as Article 2.4 of the UN Charter (“All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State”).

Incidentally, countries have been known to go to war for lesser reasons than these.

The ambassador (and other diplomatic officials) can be expelled by the receiving country as “persona non grata” (Article 9, Vienna Convention). Rarely done, it’s the most serious form of censure that can be laid on a diplomat by the receiving country.

Unless, of course, the Philippines waives the diplomat’s immunity, as provided under Article 37 of the Convention. In which case, the receiving country can put him to jail. Non-diplomats and private citizens, needless to say, have no such immunity.

In the Philippines, aside from violating Articles II and XI of the Constitution, anyone committing an act that “provokes or gives occasion for a war involving or liable to involve the Philippines or exposes Filipino citizens to reprisals on their persons or property” can be imprisoned (Article 118, Revised Penal Code).

The same goes for any person causing “undue injury to any party, including the Government” while “in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence (Section 3.e, RA 3019).”

Under Civil Service rules, government officials who “use or divulge, confidential or classified information officially known to them by reason of their office and not made available to the public” that “prejudice the public interest” can be held administratively liable (without prejudice to further criminal prosecution). Any private person participating “in conspiracy as co-principals, accomplices or accessories” are “subject to the same penal liabilities.”

All the foregoing is basic.

Clearly, diplomacy is taken very seriously not only by the international community but by the Philippines as well. It is, after all, the extension of our domestic policy.

Hence why it’s said of the Department of Foreign Affairs that it’s composed of the nation’s best and brightest.

Particularly, at its top. Or so they say.

 

Jemy Gatdula is a Senior Fellow of the Philippine Council for Foreign Relations and a Philippine Judicial Academy law lecturer for constitutional philosophy and jurisprudence.

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