Reciprocity in diplomatic sanctions
This analysis explores the principle of reciprocity as it applies to diplomatic sanctions, focusing on its legal framework under the VCDR, customary international law, and its practical implications and challenges in contemporary diplomacy.
1. Reciprocity in Diplomatic Law
In diplomatic law, reciprocity refers to the mutual interdependence of rights, obligations, or treatments between states, promoting equivalent exchanges that uphold legal equality and sovereignty. It functions through treaties, comity, or practical cooperation, guided by proportionality and the specific relational context, fostering norm development and enforcement. While not demanding identical actions, it seeks balanced counter-performance.
Arianna Whelan in her book Reciprocity in Public International Law, provides different approaches for reciprocity in diplomatic law:
Mutual Exchange and Legal Equality: In diplomatic law, reciprocity entails states granting each other comparable treatment or concessions to maintain a balanced relationship, preventing any state from being disadvantaged. This principle is rooted in the sovereign equality of states, where rights or privileges, such as diplomatic immunities, are extended with the expectation of similar treatment for their own diplomats in return.
Diplomatic or Conventional Reciprocity: In diplomatic law, reciprocity is frequently embodied in treaties or agreements where states pursue a balance of obligations, following a "do ut des" (I give so that you give) principle. This involves exchanging concessions, such as mutual recognition of diplomatic privileges, without demanding identical actions but striving for equivalent counter-performance. For instance, reciprocity may regulate the provisional application of treaties prior to their formal entry into force.
Factual Reciprocity in Absence of Law: In the absence of specific legal obligations, reciprocity acts as a foundation for cooperation, as seen in comity, where states offer courtesies—such as favorable treatment of foreign nationals or recognition of foreign judgments—with the expectation of similar treatment in return. This is especially pertinent in diplomatic relations for actions like extradition in the absence of a treaty.
Proportionality and Relativity: In diplomatic law, reciprocity integrates proportionality to ensure a balanced exchange that accounts for the varying capacities or interests of states. It functions relationally, with treatment tailored to the specific inter-state relationship and context, rather than adhering to a universal standard. For instance, a state may adjust its diplomatic concessions based on what it deems fair, considering the other state’s actions or status.
Role in Norm Creation and Execution: Reciprocity promotes the establishment of diplomatic norms by motivating states to agree on mutual obligations, such as those outlined in treaties governing diplomatic relations. It also supports enforcement, where one state’s non-compliance may trigger reciprocal measures, like retorsion, to encourage cooperation.
Legal scholars observe that reciprocity serves as both a legal condition and an enforcement mechanism, especially when formal legal tools are inadequate. Simma notes that reciprocity “juridically binds the conduct of one state to that of another,” frequently yielding results similar to reprisals but operating within the bounds of the legal framework.¹
Also, according to Denza: Reciprocity forms a constant and effective sanction for the observance of nearly all the rules of the Convention. Every State is both a sending and a receiving State. Its own representatives abroad are in some sense always hostages. Even on minor matters of privilege and protocol, their treatment may be based on reciprocity. For the most part, failure to accord privileges or immunities to diplomatic missions or to their members is immediately apparent and is likely to be met by appropriate countermeasures.²
2. Reciprocity, Non-Discrimination, and Retaliation under Article 47 VCDR
Article 47 establishes a general obligation of non-discrimination, outlining conditions under which differential treatment is not considered discriminatory. The focus is on non-discrimination and the consistent application of a uniform regime for diplomatic missions in each State Party.
Deviations from this regime were intended to be exceptional. However, the exceptions were drafted broadly, allowing discriminatory treatment to be justified based on custom, agreement, or retaliation. In the early years of the Convention, such discrimination was common.
Over time, however, the Convention’s rules have increasingly been applied as established law. States Parties have found it more practical and adaptable to express warming or cooling relations through measures permitted by the Convention—such as declaring individuals a persona non grata, among others measures—rather than discriminating in the application of the Convention’s rules. As a result, Article 47 has become less significant over time.³
And according to Denza, if on the other hand State A broke the terms of the Convention in regard to the diplomatic mission of State B, State B would be justified under general principles of law in refusing to implement towards the mission of State A the obligation which State A had itself failed to carry out. In this case the response would constitute a reprisal for the original illegality.
The United Kingdom, through the Diplomatic Privileges Act 1964, which implements the VCDR, authorized the withdrawal of privileges and immunities from diplomatic missions in London via Order in Council. This can occur if the privileges and immunities granted to a British mission in another State, or to individuals associated with that mission, are less than those provided by the Act to that State’s mission or its personnel. This authority applies regardless of whether the less favorable treatment stems from a breach, a “restrictive application” of the Convention, or a reservation to the Convention.⁴
However, even in cases of reciprocal measures, states remain bound by international law limitations. Article 50(2)(b) of ARSIWA ⁵ explicitly prohibits countermeasures that violate the inviolability of diplomatic or consular agents, premises, archives, or documents. Therefore, while reciprocity is recognized under Article 47 VCDR as a practical and political tool, it must operate within legal limits, ensuring that core diplomatic protections are not undermined.
3. Reciprocity in Practice
Skripal Case Expulsions (April 2018):
Following the poisoning of Sergei Skripal, attributed to Russia, the UK and allies expelled Russian diplomats, leading to 342 total expulsions (189 by Russia in retaliation).
This multilateral reciprocity extended beyond diplomatic violations to a perceived international law breach, showcasing expulsions as a standard reprisal tool.⁶
Russia-Germany Diplomatic Expulsions (April 2023):
Russia expelled over 20 German diplomats in retaliation for Germany’s “mass” expulsion of Russian embassy staff, accusing Berlin of undermining ties.
This bilateral tit-for-tat reflects reciprocity as a direct response to perceived violations, using expulsions (a Convention-compliant measure). (VII)
¹ Arianna Whelan, Reciprocity in Public International Law (Cambridge: Cambridge University Press, 2023), 44, 45, 49, 47, 53, 55, 57, 58, 59.
² Eileen Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations, 4.ª ed. (Oxford: Oxford University Press, 2016), 1.
³ Eileen Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations, 4.ª ed. (Oxford: Oxford University Press, 2016), 406.
⁴ Eileen Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations, 4.ª ed. (Oxford: Oxford University Press, 2016), 407.
⁵ International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries, Yearbook of the International Law Commission, 2001, vol. II, Part Two, Article 50(2)(b), https://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf
⁶ Alia Chughtai and Mariya Petkova, “Skripal Case: Diplomatic Expulsions in Numbers,” Al Jazeera, April 3, 2018, https://www.aljazeera.com/news/2018/4/3/skripal-case-diplomatic-expulsions-in-numbers.
⁷ Al Jazeera, “Russia Announces ‘Reciprocal’ Expulsion of German Diplomats,” Al Jazeera, April 22, 2023, https://www.aljazeera.com/news/2023/4/22/russia-announces-reciprocal-expulsion-of-german-diplomats.