North Carolina Journal of International Law

"Connecting North Carolina to the World of International Law"

Closed for “Parity”: Closing of the Russian Consulate and the Resulting Implications

By: Matthew Ledford

 

 

 

 

 

 

It is a “gross violation” of international law.[1]  That is what Russian President, Vladimir Putin, has called the United States’ actions in “securing and maintaining” the recently closed Russian Consulate in San Francisco and annexes in Washington D.C. and New York.[2]  The closings ordered by President Trump are the most recent development in the tug-of-war between the two countries, a battle that stems from the Obama administration.[3]  Even so, it is not just the United States’ decision to close the buildings, but the subsequent actions of American officials that have sparked the controversy with Russia.[4]  However, the question remains if Putin’s comments about the violation were justified. Exploring the alleged violation, the relevant international law and its’ authority over the United States, and the potential impacts a violation could have on the increasing tensions between the two Cold War foes will clarify the situation.

The Alleged Violation

On Saturday, September 2, firefighters were dispatched to the Russian consulate in San Francisco when “black smoke was seen billowing out of the [building’s] chimney.”[5]  The firefighters, who were quickly turned away by Russian officials, confirmed that “the Russians were burning something in their fireplace.”[6]  With temperatures nearing 95 degrees[7], to many this course of action came across as rather odd.  However, to many other Americans like Rick Smith, a former FBI agent who once oversaw the Russian counterintelligence squad in the city, the chaos came as no surprise.[8]  Smith said, “There is finally the realization by the [Trump] administration that the Russians have been involved in intelligence operations at this consulate, which they have been doing for decades.”[9]  In many circles, the clouds of espionage suspicions were bigger than those of smoke. It is safe to assume that the general consensus was the Russians weren’t using the fire for warmth.

The incident came just days after President Trump announced his decision to close the three Russian facilities.[10]  The move was in response to Vladimir Putin’s earlier call to substantially reduce the number of American diplomats in Russia in order to achieve parity between the two countries, a decision that resulted in the elimination of 755 U.S. positions (the number of US diplomats in Russia is currently 455).[11]

In December of last year, former President Barack Obama ordered the exit of various Russian officials and closed recreational compounds based on accusations that the Russians were interfering with the 2016 election.[12]  Putin restrained from any relation against Obama’s decision, in hopes that the newly-elected Donald Trump would keep his campaign promises to improve U.S.-Russian ties.[13]  However, this hope was not realized when President Trump, pressured by Congress, signed into law “stepped-up” sanctions against Moscow.[14]  These sanctions resulted in Putin’s initial jab to US diplomats. Now, the Kremlin is considering how to once again respond to Trump’s recent counterpunch, which is being described as one of the most “dramatic diplomatic measures” by the United States since the ending of the Cold War in 1986.[15]

United States officials argue that any Russian retaliation is simply not warranted, as the spirit of “parity” has seemingly been achieved: both parties have three consulates in each country and approximately the same number of diplomats throughout (although this number is admittedly hard to confirm).[16]  According to the Russians however, it is the actions of American intelligence agents once the buildings were evacuated that elicited a response.[17]  Rumors are that the United States, immediately after the exit of the Russians,  began conducting raids and search missions of the consulate, annexes, and apartments of Russian officials, and earlier even threatened to “break down the entrance” to the Washington annex if the Russians did not evacuate following President Trump’s orders.[18]  It is this conduct upon which Putin claims the United States violated a pillar of international relations and international law: the Vienna Convention.[19]

The International Law: The Vienna Convention

Brief History

Dating back to the Greeks, the importance of consular and diplomatic relations has been appreciated around the globe.[20]  This appreciation was ultimately made evident by a meeting of 90 countries and international organizations in 1963 to prepare an international agreement on consular relations.[21]   The meeting resulted in the establishment of the Vienna Convention, and the international law took force in 1967.[22]   The Vienna Convention sought to “codify the rights and obligations of member states with respect to consular relations” and “to facilitate the exercise of consular functions”[23] including (but not limited to): developing economic and cultural relations between the sending and receiving state, issuing travel documents,  and protecting nationals of the sending state.[24]  To date, the Convention has been ratified by over 130 countries[25] and has been referred to as “undoubtedly the single most important event in the entire history of the consular institution.”[26]

Authority over the United States

            Excluding some notable exceptions, treaties are binding on the government of the United States. The Supremacy Clause of the United States Constitutions states: “all Treaties made, or which shall be made, under the Authority of the United States shall be the supreme law of the land . . . .”[27]  The Restatement (Third) of Foreign Relations Law of the United States adds that the President has the obligation to ensure international agreements are “faithfully executed.”[28]

However, there are exceptions to the Supremacy Clause. These exceptions include (1) the doctrine of lex posterior derogat priori – the last in time doctrine, and (2) the issue of self-execution.[29]   The “last-in-time” doctrine, which was utilized by the United States Supreme Court in The Head Money Cases,[30] states that a treaty can be subsequently superseded by a later act of Congress and an act of Congress can be superseded by a treaty.[31]  The doctrine of self-execution states that if a treaty is not self-executing, meaning it requires a further act of Congress or Congress has not enacted legislation implementing the treaty, the treaty is considered to be an interstate treaty and cannot and will not be enforced in the courts of the United States.[32]

However, it is important to note that these exceptions do not relieve the country’s responsibility altogether.  The Restatement (Third) makes it clear that just because an international law or agreement is superseded domestically, it does not relieve the United States from its international obligations or from violations of that law.[33]   Moreover, both Articles 26 and 27 of the Vienna Convention on the Law of Treaties provide “every treaty in force is binding upon the parties to it and must be performed in good faith”[34] and “a party may not invoke the provisions of its internal law as justification for it to perform a treaty.”[35]

In this case, the Vienna Convention of Consular Relations and Diplomatic Relations is binding on the United States.

Application of the Vienna Convention

            Putin and Russia assert that the relevant portions of the Vienna Convention that have been violated by the United States are Article 31 of the Vienna Convention on Consular Relations[36] and Article 22 of the Vienna Convention on Diplomatic Relations.[37]

Article 31 of the Vienna Conventions on Consular Relations states:

1.Consular premises shall be inviolable to the extent provided in this article.

2.The authorities of the receiving State shall not enter that part of the consular premises which is used exclusively for the purpose of the work of the consular post except with the consent of the head of the consular post or of his designee or of the head of the diplomatic mission of the sending State. The consent of the head of the consular post may, however, be assumed in case of fire or other disaster requiring prompt protective action.

3.Subject to the provisions of paragraph 2 of this article, the receiving State is under a special duty to take all appropriate steps to protect the consular premises against any intrusion or damage and to prevent any disturbance of the peace of the consular post or impairment of its dignity.

4.The consular premises, their furnishings, the property of the consular post and its means of transport shall be immune from any form of requisition for purposes of national defense or public utility. If expropriation is necessary for such purposes, all possible steps shall be taken to avoid impeding the performance of consular functions, and prompt, adequate and effective compensation shall be paid to the sending State.[38]

Article 22 of the Vienna Conventions on Diplomatic Relations:

1.The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission.

2.The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.

3.The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution.[39]

In this situation, it is certainly controversial whether the United States has violated the relevant sections of the Vienna Convention.  U.S. officials claim that actions have been taken to “secure and maintain” the Russian consulate and annexes, which is seemingly justified under both sections provided above.[40]  Specifically, both sections provide that the United States has a special duty to protect the facilities from any intrusion or damage.[41]  It seems that securing the premises from entrance of third parties, at least on the surface, would not result in any violation.

However, if the United States is allowing FBI agents to raid and search the buildings, as Russia has reported, then the result is quite the opposite. The Convention seemingly inspires and encourages collaboration between the leaders of the sending and receiving states.[42]  For example, it bars mere entrance of the consular post by the United States without the consent of Putin.[43]  But here, there has been no consent or collaboration between the United States and Russia. The Convention starkly bars any “search, requisition, attachment, or execution” by the home country.[44]  Therefore, if the United States in fact did raid or search the consulate, it blatantly violated the Vienna Convention, and therefore international law. Surprisingly enough, without the Kremlin’s consent, the United States’ choice to merely step foot inside the consulate constitutes a violation.

The Resulting Implications

The United States’ violation of international law could have major ramifications for the country. It is not likely that the United States will be punished for its violation by an international tribunal or court, or by its own courts. Historically, despite the United States’ vigorous efforts to enforce the Vienna Convention on its own behalf, it has frequently violated the international agreement itself, especially when it comes to notifying other countries when it has detained or incarcerated one of its citizens.[45]  However, this blatant disregard for international law seems less likely to be tolerated as other countries like Russia grow in power and influence.

Because violations such as those alleged against the United States have gone by unpunished, the countries will resort to a tit-for-tat struggle, a metaphorical wrestling match, which ultimately compromises the safety and well-being of the citizens of each country. This may be what Putin wants, however. According to Marin Kutasa, for the past 15 years the Russian President has been “formulating, bankrolling, and directing Cold War: The Sequel.”[46]  In what Kutasa calls a “Colder War,”[47] Putin is in it to win it and the United States’ undermining of international agreements seems to only make things worse. As tensions continue to heat up between Mother Russia and Uncle Sam, it begs the question: what exactly were the Russians burning?  Perhaps that’s for another story.

 

[1] Nataliya Vasilyeva & Josh Lederman, Russia Lashes Out After Trump Orders Diplomatic Posts Closed, Associated Press (AP), (Sept. 1, 2017), http://www.pbs.org/newshour/rundown/russia-lashes-trump-orders-diplomatic-posts-closed/.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Mark Landler & Gardiner Harris, In Retaliation, U.S. Orders Russia to Close Consulate in San Francisco, The New York Times (Aug. 31, 2017), https://www.nytimes.com/2017/08/31/us/politics/russia-consulate-close-retaliation.html.

[7] Scott Simon, What Were the Russians Burning in San Francisco?, National Public Radio (NPR), (Sept. 2, 2017), http://www.npr.org/2017/09/02/548076072/what-were-the-russians-burning-in-san-francisco.

[8] Id.

[9] Id.

[10] Vasilyeva & Lederman, supra note 1.

[11] Landler & Harris, supra note 6.

[12] Id.

[13] Vasilyeva & Lederman, supra note 1.

[14] Id.

[15] Id.

[16] Landler & Harris, supra note 6.

[17] Vasilyeva & Lederman, supra note 1.

[18] Laura Smith-Spark & Jill Dougherty, Russia Summons American Diplomat as its US Outposts are Ordered to Close, CNN, (Sept. 2, 2017), http://www.cnn.com/2017/09/02/politics/russia-consulate-san-francisco-tensions/.

[19] Vasilyeva & Lederman, supra note 1.

[20] William J. Aceves, The Vienna Convention on Consular Relations: A Study of Rights, Wrongs, and Remedies, 31 Vand. J. of Transnat’l L., 257, 262 (1998) [Hereinafter Consular Relations].

[21] Id. at 263.

[22] Id.

[23] Id. at 259.

[24] Vienna Convention on Consular Relations, art. 5, Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261 [hereinafter Vienna Convention].

[25] Aceves, supra note 20 at 263.

[26] Luke Lee, Consular Law and Practice 27 (2 ed., 1991).

[27] U.S. Const. art. VI, cl. 2.

[28] Restatement (Third) of the Foreign Relations Law of the United States § 111 cmt. c (1987).

[29] Aceves, supra note 20, at 289-291.

[30] The Head Money Cases, 112 U.S. 580, 599 (1884).

[31] Aceves, supra note 20, at 291

[32] Id.; See Foster v. Neilson, 27 U.S. 253, 314 (1824).

[33] The Restatement (Third) of Foreign Relations Law § 115.

[34] Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, art. 26, 1155 U.N.T.S. 331, 339 (entered into force Jan. 27, 1980).

[35] Id. art. 27.

[36] Vienna Convention, supra note 24, art. 31.

[37] Vienna Convention on Diplomatic Relations, art. 22, April 18, 1961, 23 U.S.T. 3227, 500 U.N.T.S. 95 [hereinafter Diplomatic Relations].

[38] Vienna Convention, supra note 24, art. 31.

[39] Diplomatic Relations, supra note 37, art. 22.

[40] Vienna Convention, supra note 24, art. 31; Diplomatic Relations, supra note 37, art. 22.

[41] Vienna Convention, supra note 24, art. 31; Diplomatic Relations, supra note 37, art. 22.

[42] Vienna Convention, supra note 24, art. 31.

[43] Id.

[44] Id.

[45] See, e.g., United States v. Ibarra, 3 F.3d 1333, 1335 (9th Cir. 1993);United States v. Zaleta-Sosa, 854 F.2d 48, 52 (5th Cir. 1988); United States v.Cerda-Pena, 799 F.2d 1374, 1379 (9th Cir. 1986); United States v. Arambula-Alvarado, 677 F.2d 51, 52 (9th Cir. 1982); Tejeda-Mata v. INS, 626 F.2d 721, 726(9th Cir. 1980); United States v. Bejar-Matrecios, 618 F.2d 81, 82 (9th Cir. 1980).

[46] Marin Kutasa, The Colder War: How the Global Energy Trade Slipped from America’s Grasp, 2 (2012).

[47] Id.

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