South Africa accuses Germany of breach of Article 41(2) VCDR

Published: 04 March 2019  Author: Stefan Talmon  DOI: 10.17176/20220106-161121-0

On 3 February 2019, in a front page article headed “World powers warn SA on graft: Presidency receives unprecedented memo on corruption”, the South African newspaper Sunday Times reported that the German Embassy in Pretoria, together with the embassies of the Netherlands, Switzerland and the United States and the United Kingdom High Commission, had written to South African President Cyril Ramaphosa warning him that failure to act against those implicated in corruption placed foreign investment at risk. The five States account for 75 percent of foreign direct investment in South Africa.

This newspaper report triggered an immediate reaction from the South African Department of International Relations and Cooperation. Within hours the Department issued the following statement:

“The Department of International Relations and Cooperation (DIRCO) notes with disappointment the dispatching of a Memorandum to the Office of The Presidency by the Embassies of the United States of America, the United Kingdom, the Netherlands, Germany and Switzerland. This is a departure from established diplomatic practice.

In terms of acceptable diplomatic practice, protocol and convention, diplomatic missions are expected to communicate to the receiving state by means of a note verbale (diplomatic note) conveyed through the Department of International Relations and Cooperation. All embassies, regional and international organizations accredited to South Africa are aware of this protocol and universal norm. South African diplomatic missions abroad consistently observe this protocol by directing official communication to the respective foreign ministries in the countries of accreditation.

The South African government is intensifying its efforts to deepen and expand economic relations with a number of countries around the world, and is pleased with the enthusiastic response its efforts have yielded thus far. All matters that have been raised by investors are being addressed by the respective clusters of our government. We are satisfied that all the branches of our democratic state, including state agencies, are vigorously pursuing their respective mandates to address our current challenges.

The Minister of International Relations and Cooperation, Ms. Lindiwe Sisulu has instructed the Department to demarche the concerned Ambassadors with a view to discussing substantive matters contained in their correspondence, and to reiterate acceptable protocol in addressing such matters.

The Department of International Relations and Cooperation would like to remind all diplomatic missions accredited to South Africa to address official correspondence through the appropriate diplomatic channels.”

The following morning, DIRCO summoned the heads of mission of the five States to express its displeasure over the Memorandum. Following the meeting, DIRCO issued a further statement which reads as follows:

“Following a démarche by the Minister of International Relations and Cooperation, Ms Lindiwe Sisulu, the Director General Mr Kgabo Mahoai accompanied by Ms Yolisa Maya, the Deputy Director General met with the Heads of the Diplomatic Missions representing Switzerland; the United Kingdom (UK); Germany; the Netherlands and the United States of America (USA) to express South Africa’s displeasure that the Heads of Mission did not follow established diplomatic channels when communicating to the South African government.

The Heads of the Diplomatic Missions regretted the misunderstanding and further clarified that the discussion paper had been sent to The Presidency to contribute to the dialogue on how South Africa can attract more foreign direct investment.

The meeting concluded by agreeing that in future proper diplomatic channels and protocols will be followed in all diplomatic communications.  The Heads of the Diplomatic Missions also reiterated their commitment to working actively in support of South Africa’s investment drive.”

Later that day, the Embassies of Germany, the Netherlands, Switzerland, the United States, and the High Commission of the United Kingdom issued a joint statement putting forward their side of the story. The statement reads:

“We appreciate the meeting with the Director General and members of the senior staff of DIRCO this morning.

We made clear that we had not sent any official document to any branch of the South African government.

What media have been referring to is an informal discussion paper, drafted by our missions in June 2018 in the run-up to the President’s Investment Conference.

This discussion paper was intended to support South Africa’s investment drive and to underpin our constructive dialogue with the South African government.

We have strongly supported South Africa’s drive to attract foreign investment from the start and we will continue to do so in the future.

We are happy with the positive engagement which we have had with the South African government and civil society partners. We will continue to engage in this spirit.”

When asked about what could arguably be viewed as an overreaction to a memorandum submitted more than half a year ago, the DIRCO spokesperson stated that the date of the memo was not important. He continued:

“What is important is that all communications from ambassadors or diplomats must follow diplomatic channels and protocols. Our own diplomats who are representing us in 125 countries also follow the same diplomatic channels.”

The controversy raises the question of whether the sending or handing over of an “informal discussion paper” falls under “official business” in terms of Article 41(2) of the Vienna Convention on Diplomatic Relations (VCDR). The provision reads:

“All official business with the receiving State entrusted to the mission by the sending State shall be conducted with or through the Ministry for Foreign Affairs of the receiving State or such other ministry as may be agreed.”

Except where special permission has been given for dealing with other branches of the receiving State’s government, or in the case of military, cultural or economic attachés who are by custom permitted to deal directly with the relevant departments on technical matters, all official business between a diplomatic mission and the receiving State is to be conducted through the Ministry of Foreign Affairs. It has been pointed out that the “rule is a long-standing and universal one, based on common sense.” Official business is not limited to official notes, notes verbales, or official letters by members of the diplomatic mission but also includes, for example, aide-mémoires which include a sending State’s point of view or putting forward a proposition. The fact that the “discussion paper” was, by their own admission, drafted by the diplomatic missions in question indicates its official character. The term “official business” is wide enough to cover informal but official discussion papers. In any case, whether a written communication qualifies as “official business” will depend on the established practice in the receiving State.

While DIRCO had a point in terms of diplomatic law, it seems that its statements were aimed more at the domestic audience than at the diplomatic missions. The “discussion paper” had raised, inter alia, concerns of the five States around investment protection, land expropriation without compensation, restrictive visa practices, the policy of broad-based black economic empowerment, the rule of law, the independence of the judiciary and honest and ethical business practices. The fierce reaction by the South Africa Government was motivated by the politically sensitive content of the discussion paper rather than by the channel used for of its communication to relevant government departments.

Category: Diplomatic and consular relations

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Author

  • Stefan Talmon is Professor of Public Law, Public International Law and European Union Law, and Director at the Institute of Public International Law at the University of Bonn. He is also a Supernumerary Fellow of St. Anne’s College, Oxford, and practices as a Barrister from Twenty Essex, London. He is the editor of GPIL.

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