Diplomatic relations, traditionally, take place by mutual consent of states,847 accordingly, reciprocity is a „cardinal feature of the tradition”.848 In the past, it was an important requirement regarding the envoys, to treat them by receiving states, according to certain customs – rituals and ceremonies that were built on habitual standards of hospitality.
Some societies attached great importance to the principle of reciprocity,849 when dealing with messengers, and disrespecting or injuring a delegate could be used, as casus belli – an alleged reason for war.
844 Talmon op. cit. 156-157.
845 Vienna Convention. Article 9(1).
846 Talmon op. cit. 159.
847 In diplomatic practice, the mutual consent of states may also be expressed quite informally. Brownlie:
Principles… 350.
848 Eyefinger: Diplomacy … 837.
849 Pfeffer asserts that states can always find opportunities to help those whose support they want. Although the quid pro quo rarely needs to be explicit, helping people out revokes reciprocity – the almost universal principle that favors must be repaid. Jeffrey Pfeffer: Power Play. Harvard Business Review. July-August, 88/2010, 87.
Then, with the establishment of permanent embassies by the end of the Middle Ages, the requirement of treating ambassadors with proper esteem, the emphasis on following the rules of hospitality, even increased. The theories of functionality and reciprocity in diplomatic practice, continued to be central and this state of affairs remained unaffected until the nineteenth century, when the Congress of Vienna accentuated the functional approach over the personal approach to diplomatic immunities. In spite of improvement of diplomacy, along with the advancement of diplomacy law, it was not free of the power of customs after the period of the Middle Ages, as well.850
With regard to the term „reciprocity”, it has several meanings, applied in law,851 since private international law and national regulations borrowed this concept from international law.
The ancient principle of reciprocity, practically, means mutual benefits, being a key notion of diplomatic relations,852 and was so generally observed, due to being consonant with practical needs.853 Those countries, which respected the envoys and facilitated the discharge of their mutually helpful mission, in the course of national survival had a distinctive advantage over the societies that did not provide the legates with adequate protection and immunity, in order to enable them to realize their functions.854
According to the principle of reciprocity (or mutuality), states855 have to build relationships with each other on a mutually beneficial and equitable basis,856 taking into account the legitimate interests of the other party,857 par excellence in matters of ensuring of
850 The diplomats always wanted to demonstrate the authority of their sovereign. Péter Rubin: A diplomaták hétköznapjai. (The weekdays of diplomats.) Kossuth Könyvkiadó. Budapest, 1974, 97.
851 Reciprocity: „1. Reciprocity is a basic phenomenon of social interaction and consequently a guiding principle behind the formation and application of law (see also General Principles of Law). 2. From an objective point of view, in international law, reciprocity may be understood as the status of a relationship between two or more States under which a certain conduct by one party is in one way or another juridically dependent upon that of the other party).” Rüdiger Wolfrum (ed.): The Max Planck Encyclopedia of Public International Law. Oxford University Press. Oxford, 2013, 651; on reciprocity, also see Bruno Simma: „Reciprocity.” Rudolf Bernhardt (ed.):
Encyclopedia of Public International Law. North-Holland Co. Amsterdam, 1992, 29-33.
852 According to some works of reference, „If the behavior of other states is like ours, then we can talk about reciprocity (réciprocité, Gegenseitigkeit).” Jónás–Szondy op. cit. 1012.
853 In view of that, in interstate relations, reciprocity means that a state provides an other state with all the rights that the exercise of which the latter provides to the former. Gyula Hajdu–Endre Sík: Diplomáciai és Nemzetközi Jogi Lexikon. Akadémiai Kiadó. Budapest, 1967, 880.
854 Ellery C. Stowell: Diplomatic Privileges and Immunities. The American Journal of International Law. Vol. 20, No 4, 1926, 735.
855 The modern sovereignty game of states is based on non-intervention and reciprocity. A game, based on reciprocity is a symmetric game, where the players enjoy equal opportunity to benefit from bi- and multilateral transactions. Georg Sörensen: The global polity and changes in statehood. Morten Ougaard–Richard Higgott (eds.): Towards a Global Polity. Routledge. New York, 2002, 46-47.
856 Webster regards diplomacy as a transaction between individuals or groups. Webster op. cit. 3.
857 There are have been many reasons, why states obey the rules that are usually unenforced and mostly unenforceable, such as power and coercion, self-interest and reciprocal benefits, institutionalized habit or inertia, the existence of a sense of community, procedural legitimacy of the process of rule creation, or the moral suasion that derives from a shared sense of justice. Andrew Hurell: International Society and the Study of Regimes: A
international peace858 and security.859 Moreover, Southwick believes that „Reciprocity stands as the keystone in the construction of diplomatic privilege.”860 Russel defines reciprocity, as a
„state of affairs existing between two countries and relating to one particular branch of law”, dividing the notion into internal reciprocity, related to domestic matters and external reciprocity, connected to the cases with involvement of courts of foreign countries.861
The principle of reciprocity is the advancement of a more general and more ancient principle – comity862 (comitas gentium) that requires states to treat the foreign rule of law with polity and consideration, hence, comity demands to respect foreign law.863 Mann believes that comity – courtoisie internationale,864 is one of the most ambiguous and multifaceted conceptions in law, particularly in the sphere of international affairs,865 and it is hard not to agree with him, since the concept has broadened by now, being applied, as synonym for a rule of public international law, a moral obligation, expediency, courtesy, reciprocity, utility, custom, private international law and others.866
Reports on international events occasionally refer to „rules of comity” (courtoisie).867 An example is the practice of a sending state to refrain from publishing the text of a diplomatic note prior to its receipt by the receiving state. Comity represents modes of state behavior that do not involve binding or legal obligation. If such an obligation existed, the rule in question
Reflective Approach. In: Volker Rittberger (ed.): Regime Theory and International Relations. Clarendon Press.
Oxford, 1993, 53.
858 In words of Brzezinski, „… a gradually emerging community of the developed nations will be in a better position to pursue true détente, the aim of which is not an artificially compartmentalized globe, fundamentally in conflict with basic global dynamics, but a world in which spheres of exclusive predominance fade.” Zbigniew Brzezinski: U. S. Foreign Policy: The Search For Focus. Foreign Affairs. An American Quarterly Review. Vol.
51, No. 4. Council on Foreign Relations, Inc. July 1973, 727.
859 L. V. Tikhomirova–M. J. Tikhomirov: Iuridicheskaia entsiklopediia. (Juridical encyclopaedy.) Izdatel’stvo M.
J. Tikhomirova. Moskva, 2008, 703.
860 James T. Southwick: Abuse of diplomatic privilege and immunity: compensatory and restrictive reforms.
Syracuse Journal of International Law and Commerce. Syracuse University College of Law. Vol. 15, No. 83, 1988-1989, 89.
861 M. J. Russel: Fluctuations in Reciprocity. The International and Comparative Law Quarterly. Vol. 1, No 2, April, 1952, 181.
862 The term „comity” was first used by the Netherlands writers on private international law, Paul Voet (1619-1677), John Voet (1647-1714) and Ulric Huber (1636-1694). The Voets used it to mean „courtesy”. Huber, on the other side, seemed to have regarded comity, as being part of ius gentium, sometimes. Michael Akehurst:
Jurisdiction in International Law. British Yearbook of International Law. No. 46. 1972-1973, 215.
863 Janis, elaborating on the doctrine of international comity, states that courts, according to this doctrine, should apply foreign law or limit domestic jurisdiction out of respect for foreign sovereignty. Mark W. Janis: An Introduction to International Law. Aspen Publishers. New York, 2003, 327.
864 Maier exemplifies international comity, as a synonym for diplomacy. Harold Maier: Interest Balancing and Extraterritorial Jurisdiction. American Journal of Comparative Law. Vol. 31. 1983, 579, 589.
865 Mann: Foreign… 134.
866 Joel R. Paul: The Transformation of International Comity. Law and Contemporary Problems. Vol 71, No. 19.
2008, 19-20.
867 By Ustor, international comity is not a source of law. The rules on the ritual order, titles, the etiquette, the various dogmas, regarding the way of showing respect towards diplomats, do not have any binding legal force and their violation could be revenged, maximum, by practicing reciprocity. Ustor op. cit. 59.
would be one not of comity, but of either customary or conventional law.868 A violation of a rule of comity can be viewed at most, as an unfriendly act, with no claims to reparation attached, in contrast with a violation of a rule of customary or conventional law. In the latter case, an apology or reparation of some sort will be demanded for the international offense incurred, at minimum.869
Nikoliukin considers that the consistent implementation of reciprocity allows, on one hand, to safeguard stable relations between states, while, on the other hand, this standard provides individuals and legal entities of other national ethnicity with opportunities to exercise their rights on the territory of a state, which is based on the principle of reciprocity.870 However, the principle of reciprocity should not be considered, as a generally accepted legally binding principle or norm of international public law, in relation to the fact that in international relations, an other country is not obliged to act in accordance with the mentioned standard.871
Lebedev and Kabatova, conversely, assert that states prefer to act in a similar way regarding other countries for reasons of expediency, benefit or for some other particular purpose, which is not related to obligatoriness. Accordingly, the principle of reciprocity, as such, is not part of cogent principles of international law.872 Vel’iaminov states that the establishment of such cogent principle in international law in place of a general legal norm would be hardly justified, for in practice, there are too many international relations, which do not meet the criteria of reciprocity. But then again, no one is forbidden to provide benefits and other assistances to an other state in a unilateral way.873
In conjoint relations, diplomats claim and are customarily granted certain privileges and immunities. The system of privileges and immunities is founded predominantly on considerations of practical necessity. Since every state is normally simultaneously a sending and a receiving state, this fact creates reciprocal interests. In our time, diplomats benefit equally from diplomatic immunities, independently from the destination of their assignment, under this
868 On the other hand, a rule of comity may by treaty become a part of conventional law or may evolve into a component of customary law. The essential determinant in all cases is the existence or the absence of a legally binding obligation. Glahn op. cit. 25.
869 Ibid.
870 Historical evolution evidences that various social groups in their cooperation on the international arena were interested in the state of affairs, when economic and cultural relations between countries and citizens, political and social processes that go beyond a state, collaborations, conflicts and even wars, would be carried out in accordance with certain rules, which would govern the issues in this field. S. V. Nikoliukin: Vzaimnost’ v mezhdunarodnom chastnom prave. (Reciprocity in international private law.) Novii Iuridicheskii Zhurnal. No 2, 2012, 88.
871 Ibid.
872 S. N. Lebedev–J. V. Kabatova (eds.): Mezhdunarodnoe chastnoe pravo. (International private law.) Statut.
Moskva, 2011, 342.
873 G. M. Vel’iaminov: Mezhdunarodnoe ekonomicheskoe pravo i process. (International economic law and trial.) Volters Kluwer. Moskva, 2004, 110.
concept of mutuality: „Rooted in necessity, immunity was buttresses by religion, sanctioned by custom, and fortified by reciprocity.”874
In diplomatic activity, under reciprocity, a state also might take on a certain behavior or measure (for example, courtesies, benefits, or restrictions and penalties), equal in response to that conduct, taken on by an other state, „to help each other and give each other advantages”,875 by engaging in international relations.876 The application of the principle of reciprocity in diplomatic relations helps to reduce differences in the legal regulation of the status of diplomatic missions and their personnel, which leads to foundation of standard and contractual forms of diplomacy law, according to Demin.877
Furthermore, reciprocity is core to all treaties, the parties accepting vis-à-vis each other reciprocal, though not necessarily identical, and obligations.878 Apropos of inter-state agreements, the principle of the good faith is incorporated in the Charter of the United Nations,879 assumes that the relations between the member-states have to be based on loyalty, integrity and mutual trust, avoiding any acts of dishonesty.880
According to the principle of good faith, enshrined in the Charter of the United Nations, all member states should fulfill in good faith the obligations, undertaken in the Charter. The provision excludes the possibility, when in international life states, creating regulations, at their interpretation and application would consciously, bearing their own unilateral interests in mind, act in detriment of other states. In the course of the creation of regulations, their formulation in a way that would allow a particular state to place its own unilateral benefits against interests of their contractual parties. It is often a lack of good faith that evokes the debates and disagreements in the application of regulations, which lead to disruption of peace between states.881 As pointed out by Hargitai, some authors882 share the opinion that reciprocity is the second, pragmatic column along with bona fides, international law is based on.883
874 Frey–Frey op. cit. 3.
875 Cambridge International Dictionary of English. Cambridge University Press. Cambridge, 1995, 1184.
876 Hubert Thierry–Jean Combacau–Serge Sur–Charles Vallée: Droit International Public. (Public International Law.) Éditions Montchrestien. Paris, 1981, 2.
877 Demin op. cit. 21.
878 Grant–Barker op. cit. 502.
879 Charter of the United Nations. Article 2(2).
880 „All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them in accordance with the present Charter.” Ibid.
881 Hajdu–Sík op. cit. 395.
882 Alfred Verdross–Bruno Simma: Universelles Völkerrecht. Theorie und Praxis. (Universal International Law.
Theory and practice.) Duncker&Humblot. Berlin, 1984, 48.
883 Reciprocity has law enforcement and warranty significance in the system of international law. Further, reciprocity, characteristically, has a dual role, for it contributes into the formation of the norms of international law, and compliance with existing standards. Hargitai: Viszonosság… 418.
The principle of reciprocity in international law and in diplomacy law, in particular, endorses the principle of functional necessity. This follows from the fact that the deficiency of protection of diplomatic agents in the host country might be retaliated against its diplomats in foreign countries. The application of principle of reciprocity for retaliatory cause has increased in diplomatic practice, especially at the beginning of the twentieth century. For that reason, the Vienna Convention adopted provisions to regulate this area of diplomacy, as well, expressing that discrimination is forbidden in diplomatic relations, striving to restrain the unfair (or prejudicial) treatment of diplomatic agents in receiving states.
Last but not least, according to some legal theorists „Fairness… demands reciprocity in immunities, as between states and nation. It does not, however, follow that such fairness must have a constitutional foundation.”884 The interest of the sending state and those of the receiving state require proper accommodation.885 Practically, all bilateral agreements, regulating certain questions, related to the status of diplomatic missions and their personal, contain a reference to the principle of reciprocity.