Malaysia and North Korea’s Legal options under the 1961 Vienna Convention on Diplomatic Relations
The issue vis-à-vis the assassination of North Korean Supreme Leader’s brother Kim Jong Nam on February 13, 2017 in Malaysian land tarnished the diplomatic ties between North Korea and Malaysia. This event can be resolved and referred back to the 1961 Vienna Convention on Diplomatic Relations (1961 VCDR) on which both countries are signatories. This convention contains the rules of diplomatic law and codifies the rules for the exchange and treatment of diplomats between countries which are, at the same time, already been established in customary law.[1] This problem can be seen to have legal options in 1961 VCDR in several Articles that can be summarized in three (3) major dimensions; first, is the respect of the inviolable rights, immunity and privileges of the diplomat and its family; secondly, the persona nan-grata; and lastly, the waiving of immunity.
First, Malaysia is restricted to act aggressively on the suspected individuals which means the country need to respect the rights of North Korea as indicated in the 1961 VCDR. It was used by North Korea to protect its envoy as it was mentioned in the Article 29 that the fact a person is a diplomatic envoy in a country, he or she enjoys the protection from the host country which gives the diplomat of North Korea in Malaysia inviolable rights against arrest or detention, stating that “The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.”[2] Not only that, their families are also covered by the said protection as expressed in the Article 37.[3] In addition, North Korean diplomats can use the Article 22 to protect themselves from the entrance of Malaysia authority to the embassy without their consent as explained in the “rule of inviolability” as long as they are within the premises of the embassy and was supported by the Article 30 that must respect North Korean diplomat’s private residence.[4] While in the Article 31, the diplomats use the immunity rights from the criminal jurisdictions of the host country which means they are free from prosecution.[5] The abovementioned articles in the 1961 Convention on Diplomatic Relations can also be used by Malaysia for its envoy in North Korea if the tension escalates that might harm its nationals.
Secondly, the receiving state, for example Malaysia where the assassination occurred, can resort to the Article 9 of the 1961 VCDR which formally known as the declaration of persona non grata (person not wanted).[6] Meaning to say the diplomats of North Korea in Malaysia who are/were suspected behind the assassination will be declared prohibited from entering (in this case staying) in the country. The Article 9 states that “The receiving State…, notify the sending State that the head of the mission or any member of the diplomatic staff of the mission is persona non grata or … is not acceptable”.[7] This simply means that the foreign diplomat of North Korea will no longer be welcomed. These measures were actually used by both countries as reported in the freemalaysiatoday that Malaysia and North Korea declared diplomats (in North Korea the ambassador, Mohamad Nizan Mohammad) persona non grata.[8]
Lastly, since both countries are signed the Vienna agreement, if the sending country felt that its diplomats or envoy are guilty from criminal act the sending country, or both, may waive the immunity of their diplomats. It was stated in the Article 32 that “The immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under article 37 may be waived by the sending State”.[9] This happened in Malaysia’s attaché, Muhammad Rizalman bin Ismail, who were accused of sexual assault whereby he can claim immunity, but Malaysia revoked his immunity to face trial and was therefore pleaded guilty.[10]
It can be seen from the abovementioned instances that the assassination case of a North Korean within the borders of Malaysia are legally bound by the 1961 Vienna Convention on Diplomatic Relations. There are numbers of legal options that both countries can resort to, either using the inviolable rights and immunity, or the revoke of it, or at worst is to declare the individuals persona nan grata.
Bibliography:
FMT Reporters (2017). “North Korea declares Malaysia’s envoy persona non grata”. Para. 1. Retrieved from https://www.freemalaysiatoday.com/category/nation/2017/03/06/north-korea-declares-malaysias-envoy-persona-non-grata/
Global Affairs Canada (2013). Vienna Convention on Diplomatic Relations. Para. 1 Retrieved from https://www.international.gc.ca/protocol-protocole/vienna_convention-convention_vienne.aspx
Paddock, Richard (2017). Malaysian Inquiry in Kim Jong-nam Killing Hampered as Suspects Hide in Embassy. Para. 22. Retrieved from https://www.nytimes.com/2017/03/01/world/asia/malaysia-kim-jong-nam-embassy-immunity.html
United Nations (1961), “Vienna Convention on Diplomatic Relations (1961)”, United Nations, Treaty Series, vol. 500. Retrieved from https://legal.un.org/ilc/texts/instruments/english/conventions/9_1_1961.pdf
[1] Global Affairs Canada, “Vienna Convention on Diplomatic Relations”, para 1
[2] United Nations, “Vienna Convention on Diplomatic Relations (1961)”, p.9
[3] Ibid, p.11
[4] Ibid, Pp. 7–9
[5] Ibid, p.9
[6] Ibid, Pp. 4–5
[7] Ibid
[8] FMT Reporters, “North Korea declares Malaysia’s envoy persona non grata”, para. 1
[9] United Nations, “Vienna Convention on Diplomatic Relations (1961)”, p.10
[10] Paddock, “Malaysian Inquiry in Kim Jong-nam Killing” para 22
