By: Kristoffer Burck, Junior Research Associate, PILPG-NL
Foreign heads of state or monarchs on vacation abroad are always of great interest to the press. Donald Trump golfing in Scotland, Lady Diana shopping in Paris, or the Dutch royal family enjoying Greek beaches during a pandemic are often the focus of meticulous stories in yellow press tabloids. Yet these visits seldom result in intricate questions of international law, let alone serious diplomatic crises. The King of Thailand, Maha Vajiralongkorn´s long term stays in Southern Germany are different. While reports initially focused on his lavish lifestyle and the choice to spend months of quarantine 8,000 kilometers away from his kingdom, the focus subsequently shifted to questions of legality. Activists and German parliamentarians demanded that the German government declare if they deemed King Vajiralongkorn ruling his people from abroad compatible with international law. In response, German Foreign Minister Heiko Maas declared before the Parliament that “politics concerning Thailand should not be conducted from German soil”. Even though King Vajiralongkorn returned to Thailand last October, his habits of traveling back and forth make it worth examining the legality of making sovereign decisions while on his visits. Is the statement by Maas based on international norms, preventing the King from ruling Thailand, while enjoying a beautiful view of the Bavarian Alps? If so, would there be any way for Germany to enforce these rules?
The Principle of Sovereignty
The fundamental principle of sovereignty, contained in Article 2(1) of the UN Charter and recognized in international jurisprudence (for example in the Lotus Case), generally prohibits foreign heads of state from performing sovereign acts on another state's territory without consent by the territorial state. Commonly, states allow the stationing of foreign military on its soil or the organization of elections for the diaspora. A host state may even allow foreign governments to operate entirely from its soil. The United Kingdom, for example, hosted several exile governments on its territory during World War II. This is not the case here: Foreign Minister Maas made it clear that Germany does not consent to the King ruling Thailand from his hotel room in Bavaria.
The Exception for Domestic Issues and Its Limits
Yet, international law has recognized an exception for heads of state from the requirement of explicit consent during trips abroad, even private. This applies to acts over their domestic constituents as long as the acts do not concern the host state. This exception allows heads of states and other high ranking officials to efficiently continue domestic government affairs abroad. The academic service of the German Federal Parliament (for an English report on the analysis see here) concludes that under customary international law and German constitutional law the exception for domestic issues is limited by the ordre public. This assessment was also adopted by the Federal Foreign Office (for an English press ticker of the statements see here). Any acts which would infringe on international human rights standards, international law, or the German constitutional order would thus be prohibited. For instance, a head of state ordering an execution from German soil would be in breach of Article 102 of the Constitution, thereby detrimental to the ordre public and thus illegal. The Higher Administrative Court of North Rhine-Westphalia, in a case involving the US drone base in Ramstein, has further found an active obligation of the German state to make sure that no breaches of international law are conducted from its soil. Since the same standard would apply to acts of King Vajiralongkorn, German authorities would be forced to react, should the King choose to enact laws contrary to international human rights standards from German soil.
What are the “Real World” Consequences?
There are strong indications that King Vajiralongkorn did conduct certain acts of government from his hotel room in Bavaria, for example signing official letters and decrees. However, due to the wide range of immunities the King enjoys as a head of state (as acknowledged for example by the ICJ in the Arrest Warrant Case), German authorities have little to no means to further investigate whether some of these acts might violate the ordre public. Consequently, while allegations loom that the King ordered the execution of a convicted criminal from Germany, there is a lack of verified evidence for this accusation. German authorities have little legal leeway in the case of King Vajiralongkorn; as long as there is no clear evidence of breaches of the ordre public, he will be able to spend the better part of his time in Bavaria and even conduct some limited government affairs from there.
Demands from a German member of parliament for the opposition party “Die Linke”, Sevim Dagdelen, to declare the Thai King a persona non grata, are unlikely to manifest. Declaring someone a persona non grata would mean that the person must leave the country after a short deadline and is not allowed to re-enter as long as the declaration stands. The declaration does not require illegal conduct but is solely dependent on the discretion of the host state. Article 9(1) of the Vienna Convention on Diplomatic Relations, which can be applied to heads of state analogously, enshrines this principle in treaty law. Since such a declaration bears significant diplomatic and political consequences, most governments use them with restraint. Consequently, the Federal Foreign Office already indicated that it will not make any moves against King Vajiralongkorn without evidence for illegal acts.
Conclusion
While the requests from German opposition parties and the Foreign Minister may have contributed to the decision to return to Thailand, the main reason for the King to do so was most likely the large scale protests at home denouncing his absence.
This case may give an indication to other states, dealing with complicated guests. There are almost no legal tools to the government, short of declaring them a persona non grata. Most governments will refuse to take this step and international law therefore leaves host states with little possibilities. Only civil society efforts “back home” will have the necessary impact on future “vacation plans”.