In respect of what may be described as a spat between the Guyana Administration and the former Ambassador of the United States, Mr. Brent Hardt, it is important to recognise that although Article 37 of the Constitution of the Co-operative Republic of Guyana is not without considerable relevance, this provision is not determinative. What is determinative is the customary rule of international law which precludes a diplomatic envoy from interfering in the domestic affairs of the receiving state, a primordial obligation encapsulated in Article 41.1 of the Vienna Convention on Diplomatic Relations (1963) and also reflected in Article 2(7) of the United Nations Charter.
It must be borne in mind that even though Article 8 of the constitution establishes this instrument as the supreme law in Guyana, it is trite international law that the laws of a state may not be invoked as a ground for non-compliance with an international obligation: Article 27 Vienna Convention on the Law of Treaties (1969). As a matter of law, a state may not even invoke its constitution as a ground for non-compliance with an international obligation: Article 13 of the International Law Commission’s Draft Articles on the Rights and Duties of States.
In this context, reference may be made to Oppenheim’s International Law, 9th Edition, at p. 1068 where it is stated: “(i)t is universally recognised that envoys (or other diplomatic agents) must not interfere with the internal political life of the state to which they are accredit. It certainly belongs to their functions to watch political events with a vigilant eye and to report their observations to their home state.
But they have no right whatever to take part in that political life, to encourage one political party or to threaten another. It matters not whether an envoy acts thus on his own account or on the instructions from his home state. If he does so, he abuses his position, and the receiving state will either protest, or, in a more serious case, request his home state to recall him and appoint another individual in his place, or, if his interference is very flagrant, dismiss him”.
Oppenheim, an authoritative publicist on international law, further stated: “a line must, however, be drawn between functions which it is proper that a diplomatic mission may exercise, and those which it may not, although it has to be recognised that it is not always easy to draw such a line”(at p. 1067). Ambassador Brent Hardt was due to leave Guyana on July 6, 2014 on determination of his assignment to this country.
Professor Justice Duke Pollard
Department of Law
University of Guyana