Diplomatic Immunities and Privileges (DIAP)

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Diplomatic Privileges and Immunities Act No 37 (2001)

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Part 1

1. Reguralization of Stay

Prior to departure for South Africa newly appointed personnel shall be officially announced by the mission in South Africa to the Directorate: Diplomatic Immunities and Privileges.

Such personnel members are to await a formal acceptance by SA before taking up a posting at a mission in South Africa.

According to international law and practice, persons to whom immunity from jurisdiction of the host country's laws are extended, are nevertheless obliged, according to the Vienna Convention, to respect those laws. As all nations recognise, diplomatic immunity is based on the principle that duly accredited members of diplomatic Missions must be able to pursue their official duties free from harassment and possible intimidation and without impediment to their performance of those duties. Immunity, therefore, is not a licence for misconduct of any kind but is, in fact, intended to benefit the functioning of the Mission, not to personally benefit its individual members. Consequently, the Department of Foreign Affairs looks to Heads of diplomatic and other Missions, to advise members of their staff, as well as family members who enjoy derivative immunity, on their duty to respect the laws and regulations of South Africa.

Whilst a diplomatic agent possessing proper identification may not be arrested or detained, the authorities have a duty to protect the safety and welfare of the general public, including other diplomats, and to take reasonable steps to ensure this. It is incumbent on persons to carry adequate identity documents with them at all times.

For purposes of immunity from criminal jurisdiction, the Department includes, persons who are in the following relationship to an official representative of a foreign government or another person who has immunity from criminal jurisdiction by virtue of his or her official status:

  • The spouse of such representative or other person and his or her unmarried children under 21 years of age, who are not members of some other household, who reside exclusively in the principal's household and who are not nationals or permanent residents of South Africa.
  • The unmarried children of such representative or other person, who are under 23 years of age and are attending an institution of higher education on a full-time basis.
  • Under exceptional circumstances and with the express approval of the Department of Foreign Affairs, other persons who are not members of some other household, who reside exclusively in the principal's household, and who are recognised by the sending State as members of the family forming part of the household.

The Department also takes this opportunity to remind the Heads of Mission of previous circular notes on the policies and procedures affecting their Missions and staff. For ease of reference by Missions, the following guidelines have been compiled.


1.1  MEMBERS OF FAMILY: RECOGNITION

The Department recognises a member of the family of a foreign representative in terms of the Diplomatic Immunities and Privileges Act, Act No 74 of 1989, as the spouse of a foreign representative, any unmarried child under the age of 21 years, and any dependent unmarried child between the ages of 21 and 23 years who is undertaking full time studies at an educational institution and forming part of the household during a term of duty in South Africa. These members of family are regularised on diplomatic and official visas and exempted from temporary residence permit control. Adopted children are recognised accordingly upon submission of certified copies of official adoption certificates to the Directorate: Diplomatic Immunities and Privileges (DIAP).


1.2 MEMBERS OF FAMILY: IDENTITY CERTIFICATES

Spouses are issued with identity documents by the DIAP. Children of foreign representatives will be entitled to identity documents upon reaching the age of sixteen (16) years provided they reside in the receiving country with their parents on a permanent basis. Should they study abroad and visit their parents during school holidays only, they do not qualify for identity documents, but will be issued with multiple entry visas valid for twelve months.

When children reach twenty one (21) years of age, the Department must be furnished with written proof that they have been accepted/enrolled at a recognised institution of higher education (eg university) with an indication of which course is to be followed. After submission of such documentation, the student will be entitled to an identity document whilst studying until reaching the age of twenty three (23) years. When the person reaches twenty three (23) years of age, the identity document must be returned to DIAP for cancellation.

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1.3. MEMBERS OF FAMILY: WORK/STUDY PERMITS

1.3.1 Spouses

Spouses of foreign representatives will be facilitated by the Department to engage in gainful employment during a term of duty, either through a bilateral spousal agreement or an ad hoc arrangement for employment, through DIAP. Bilateral agreements are to be negotiated directly between the mission and the relevant political section of the Department. Applications to engage in gainful employment ad hoc, could be submitted to the DIAP, to assist a spouse interested in furthering a professional career. Such applications to be submitted on form BI-159, the Application for a Work Permit, together with the original offer of employment letter under cover of a Note Verbale. The provisions of paragraph 4.1 in respect of the change in diplomatic status, are also to be observed.

Spouses are also assisted ad hoc through DIAP, to study at tertiary educational institutions in South Africa. A letter of acceptance by the institution is to be submitted to the DIAP under cover of a Note Verbale.

A certificate in lieu of a work/study permit will be issued by protocol to a spouse, valid for employment with a specific employer, or to study at a specific tertiary institution as the case may be. A change of employer/tertiary institution would require a new application for gainful employment or to study elsewhere.

When the spouse of a foreign representative is not designated as a representative of the sending State, but employed by its mission subsequent to arrival, a duly created post on the mission's staff establishment in the administrative cadre, is to be filled by the spouse. The spouse as the post incumbent, must be re-registered with protocol accordingly, and the diplomatic identity document returned for cancellation. An application for a new identity document must be submitted, under cover of a Note Verbale stating that the spouse has been duly appointed and that the mission is in agreement that the spouse be conferred functional immunities. A new identity document reflecting the revised status of the spouse is then issued.

Where the mission's staff establishment is inadequate to appoint a spouse to its administrative cadre, a request for approval of a new post in that cadre, must be submitted to protocol.

When a spouse of a foreign representative is engaged at a mission as a locally employed personnel member, the appointment must be registered with protocol under cover of a Note Verbale, stating that the spouse is appointed as such and that the mission is in agreement

that the spouse be accorded functional immunities. The diplomatic identity document must be returned to protocol for cancellation. A new identity document reflecting the revised status of the spouse is then issued.

Spouses employed at missions either in the administrative cadre, or as locally employed personnel members, must be included in the personnel returns of missions, to be submitted to protocol at request.

1.3.2 Dependent Children

Should a school/university require a study permit for a child under the age of twenty three (23) years the mission must submit a Note Verbale to the DIAP stating the child's name and age. A letter of acceptance by the school/university should accompany the note verbale.

A "To Whom it may Concern" letter will be issued confirming that the child is still regarded as part of the foreign representative's household and therefore exempt from temporary residence permit control. This letter should be submitted to the relevant educational institution in lieu of a study permit.

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1.4 MEMBERS OF FAMILY: CESSATION OF DIPLOMATIC PRIVILEGES AND IMMUNITIES

1.4.1 Spouses

When the spouse of a foreign representative takes up gainful employment in South Africa in the private sector or at a mission, the identity document is to be returned to the DIAP under cover of a Note Verbale stating that the mission is in agreement with the person taking up employment on a basis of reciprocity and that the person renounces his/her immunity, when entering the private sector. When employed by a mission either in the administrative cadre or as a locally employed personnel member, the accompanying Note Verbale announcing the appointment should state that the mission is in agreement that functional immunities be accorded. A new identity document reflecting the revised status of the spouse is then issued.

1.4.2 Dependent Children

Children no longer qualify for diplomatic privileges and -immunities in terms of the Diplomatic Immunities and Privileges Act, Act No 47of 1989 upon reaching the age of twenty one (21) years when no further study is to be undertaken, or upon reaching the age of twenty three (23) years when studying full time. The identity document issued by the Department of Foreign Affairs must be returned to the DIAP for cancellation.

The remainder of the person's stay in the country will be regularised by the Department of Home Affairs in terms of the Aliens Control Act, Act No 96 of 1991. In terms of the act, it is the Department of Home Affairs policy, to regularise aliens only on private/national passports and not diplomatic passports. A period of three months is allowed to obtain the necessary passport. During that period, the Department of Foreign Affairs will issue a courtesy visa, without exemption from a temporary residence permit, for three months only. Accordingly, the Department of Home Affairs would facilitate a temporary residence permit on a diplomatic passport for three months only.

The foreign representative will have to apply for the issue of the initial three months' temporary residence permit on the diplomatic passport for these members of his household, directly to the Regional Office of the Department of Home Affairs, Sentrakor Building, Pretorius Street, Pretoria, and direct subsequent applications for the renewal of temporary residence permits accordingly. It is therefore a legal requirement that members of the family of a foreign representative, no longer qualifying for diplomatic privileges and immunities, be issued with national (private) passports of their country of origin, to continue residing in South Africa.


1.5 OTHER NEMBERS OF HOUSEHOLD

All other members of the household of a foreign representative not qualifying for diplomatic privileges and immunities in terms of the Diplomatic Immunities and Privileges Act, Act No 47 of 1989, who are issued with national/private passports by the sending State, are regularised by the Department of Home Affairs in terms of the Aliens Control Act, Act Number 95 of 1991, which. requires that regularisation of stay be applied for at a South African mission prior to entry into South Africa.

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2 Immunity List

An annual Immunity List is published in the Government Gazette in terms of section 7 of the Diplomatic Immunities and Privileges Act, 1989 (Act No. 74 of 1989).

The list consists of all transferred diplomatic, consular and administrative staff at all foreign Missions in the Republic of South Africa. This list is updated and amended on a daily basis by DIAP, according to information received from Missions in South Africa.

 

3 Annual Personnel Returns

The Department of Foreign Affairs is responsible for registering all Mission personnel and their dependants while they are on duty in the Republic of South Africa. It is therefore of the utmost importance that DIAP should have up to date records at all times. A copy of DIAP's record in respect of all Mission personnel will be sent annually, during July, to all Missions for verification. This is to ensure that the information on record is still valid and correct and that the Department is kept up to date with any changes at Missions.

This Annual Personnel Return will be sent in duplicate.


3.1 The first copy is to be amended by Missions if necessary and returned promptly, before 31 November, to DIAP.


3.2
The second copy is to be retained by Missions for their own records.

Reporting of changes during the year.

In addition to the Annual Personnel Return submitted to the Department, it remains the responsibility of Missions to keep DIAP informed at all times of any changes which take place regarding all personnel matters i.e. departures, marriages, births, changes in rank, etc.

When informing DIAP of the appointment of locally engaged personnel, Missions must please state whether the person is a South African citizen, a permanent resident without South African citizenship or a foreigner without permanent residence status in the country.


3.3
Forms containing personal particulars must be submitted in duplicate for record purposes.

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4     4.1 Replacement Personnel

When announcing the appointment of an official, Missions are requested to indicate clearly whether it is a replacement, in which case the name of the predecessor must be submitted, or a new posting.


4.2 Creation of New Posts

Should it become necessary to create a new post, Missions are requested to furnish the Department with the following:

(a) A motivation for the creation of the new post.
(b) A brief description of the duties to be performed by the prospective incumbent.

N.B.: The prospective incumbent of a new post may not apply for a visa or enter the country before the new post has been approved.


4.3 Promotion/Change of Designation

When a person is promoted or any change of designation occurs, Missions must return the old certificate of identity and apply again for a new certificate of identity. A personal particulars form, two passport-sized clear colour photographs (as the document is used for identification purposes), and two signatures must again be submitted, under cover of a Note Verbale stating clearly the date of promotion and new designation of the official.

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5 Certificates of Identity

Certificates of identity issued to representatives are the property of the Department, and must be returned to the Department upon request and/or departure.

5.1. Application for Certificates of Identity

Applications for certificates of identity are to be submitted to DIAP.

When applying for certificates of identity in respect of new or replacement personnel, the following documentation is required:

(a) Documentation:

Passport - photostats of passports of official and family.

Personal Particulars form - one form per family is to be completed in duplicate, furnishing all particulars as requested on the form, including those pertaining to a spouse as well as children who form part of the household. The names of the relevant schools or educational institutions being attended by the children must also be stated.

When completing Personal Particulars forms in respect of transferred officials whose spouses and/or children have not arrived with them, Missions are requested to -

(i) clearly indicate on the form that the spouse and/or children are "not here yet" or "to arrive later"; and
(ii) inform DIAP of their arrival in a Note Verbale, stating the date on which they arrived. This is to ensure that the dependants are placed on the Department's records for the purposes of their entitlements, immunities, etc.

Note: Marriage Certificates

Certified photostat copies of marriage certificates (or of the wife's passport which states that she is the wife of the official concerned) are to be furnished to DIAP in the following cases:

(i) When a transferred official, who was registered with the Department as single, gets married in the RSA during the tour of duty.
(ii) At the time of registering an official (or when submitting personal particulars to apply for certificates of identity) whose spouse has a surname different from that of the official concerned.

(b) Photographs and Specimen Signatures

Missions should ensure when submitting photographs and specimen signatures that:

(i) Photographs - are clearly distinguishable and of passport type (colour).
(ii) Specimen signatures - occupy a space not exceeding 6,5 cm in length and 2 cm in width, see below.

space

Specimen signatures are to be originals made on good quality white paper. Signatures on flimsy or coloured paper are not acceptable.

Number of photographs and specimen signatures required

For certificates of identity only -
three photographs
three specimen signatures

(c) Validity

Certificates of identity will be valid for the estimated period of duty but not for more than four years. Should the holder of a certificate of identity remain in the country for longer than four years, the certificate of identity will have to be returned for revalidation before the date of expiry which appears in the bottom right-hand corner of the first page.

(d) Cancellation

On termination of a tour of duty, the certificate of identity must be surrendered to DIAP.

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5.2 Replacement personnel

Certificates of identity in respect of replacement personnel should not be applied for until the certificates of identity of the predecessors and their dependants have been returned to DIAP for cancellation. Missions can then apply for a certificate of identity for a successor.


5.3 Overlapping of personnel

In cases where the tour of duty of a new official overlaps for a period of time with that of a predecessor, the Mission is requested to register the new official by furnishing the Department with the necessary Personal Particulars form, completed in duplicate. However a certificate of identity for the successor should not be applied for until the predecessor's certificate is submitted for cancellation.

Note: The Department considers an overlap of six weeks as reasonable. Missions should not, however, take it for granted that lengthy overlaps, e.g. three months or more, will be acceptable to the Department unless suitable motivation is submitted prior to an official's arrival in South Africa.


5.4 Temporary appointments

When the Department is informed of the temporary appointment of an official (for however short a period), Missions are requested to furnish Personal Particulars forms in respect of such persons for record purposes.

Note: Kindly note that the minimum period for a tour of duty to qualify for a certificate of identity, is not less than six months from the date of actual assumption of duty.

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5.5 Entitlements

Lodging Personal Particulars forms for new officials with DIAP will, in the interim, ensure that officials are placed on the Department's records and will be accorded their prescribed entitlements.

(a) Care of certificates of identity

It is incumbent upon controlling Missions to ensure that -

(i) the necessary care is taken of all certificates of identity;
(ii) the certificates are returned promptly to DIAP for cancellation when officials leave;
(iii) the requirements set out above are complied with in respect of all transferred members of staff and their dependants who apply for certificates of identity.

(b) Loss of certificates of identity

Loss or theft of a certificate should be reported to the Departmentís Protocol Administration Subdirectorate without delay by means of a Note Verbale, explaining the circumstances surrounding the loss or theft, and if applicable, any efforts made to recover the certificate.

(c) Application for replacement certificates

If, after the loss or theft of a certificate, Missions wish to apply for a replacement certificate of identity (after item (b) above has been complied with), the following documentation should be submitted:

(i) Personal Particulars form - in duplicate.
(ii) One photograph and one specimen signature.

(d) Certificates of identity for children of transferred officials:

Children of transferred officials will be entitled to certificates of identity upon reaching the age of 16 years up to the age of 21 years provided they stay in the country with their parents permanently. Should they study abroad and visit their parents during school holidays only, they do not qualify for certificates of identity, but will be issued with visas valid for multiple entries within twelve months. When they have reached 21, the Department must be furnished with written proof that they have been accepted/enrolled at a recognised institution of higher education/learning (university), with an indication of what course is to be followed. After submission of such documentation, the student will be entitled to the certificate whilst studying until reaching the age of 23 years. When the person reaches 23 years of age, the certificate must be returned to DIAP for cancellation. Should studies be continued after reaching 23 years of age, such student must obtain a study permit from the Department of Home Affairs.

Should a school require a study permit for a child under the age of 23 years, the Mission must submit a Note Verbale to the Protocol Administration Subdirectorate, clearly stating the child's name and age.

A "To whom it may concern" letter will then be issued confirming that the child is still regarded as part of the official household of the transferred official and therefore exempt from temporary residence permit control. This letter should be submitted to the relevant educational institution.

If, upon reaching the age of 21 years, no further study is to be undertaken, the certificate must be returned to the Department for cancellation and the remainder of the personís stay in the country will be regularised by the Department of Home Affairs, which will issue a temporary residence permit.

(e) Revalidation of certificates of identity:

In all cases requesting revalidation, Missions are required to give an indication of what the remainder of the official's estimated period of duty will be. One photograph and one specimen signature are required for revalidation purposes.

Regularisation of stay by the Department of Home Affairs

Any person whose stay in the country needs to be regularised by the Department of Home Affairs, must complete an application form BI 159. This form, together with the applicant's passport, should be submitted to the nearest office of a Regional Representative of the Department of Home Affairs.

The following persons fall into this category :

(i) All students over the age of 23.
(ii) All dependant children who are not studying or working, and who are 21 years old or older.
(iii) All dependants who are not the own children of the accredited official, e.g. brother-in-law, niece, nephew, sister, mother-in law, and who are holders of private passports.
(iv) All visitors who are travelling on diplomatic or official passports or UNLP for business/holiday purposes or for medical treatment should consult the Department of Home Affairs for extension of their temporary residence permit received at the port of entry.

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5.6 Cancellation of temporary residence permits

All accredited officials at Missions must on arrival check their passports for temporary residence permits. Should they have received temporary residence permits (a white sticker) at the port of entry, the passports must be handed in to DIAP under cover of a Note Verbale without delay for submission to the Department of Home Affairs so that the temporary residence permits can be cancelled. This can take up to three weeks.

(f) Description of certificates of identity

(1) Diplomatic
These certificates are issued to career diplomatic officials and their dependants.

(2) Consular
These certificates are issued to career consular officials and their dependants, as well as to honorary consuls (not their spouses).

(3) Administrative
These certificates are issued to the following categories of transferred officials -

Administrative,
Technical

and to the dependants of the above categories of staff in certain instances, as well as to members of international organisations.

(4) Temporary Identity Cards
Temporary identity cards for domestics and any other person who does not qualify for a diplomatic, consular or administrative certificate of identity.

Exceptions to the above will be based on bilateral agreements with the Republic of South Africa.

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6 Appointment/Replacement of Foreign Teachers

Certain countries have been granted approval to send teachers to the Republic of South Africa under official auspices for the purpose of teaching their respective languages at various educational institutions in South Africa which fall under the control of that country's Mission in South Africa.

The temporary sojourn of these foreign teachers is regulated by the Department of Foreign Affairs.

In the event of a new post being required to accommodate an additional teacher at an educational institution, the Mission concerned is required to obtain the necessary approval from the Department for the establishment of that teaching post in the Republic. For this purpose the Mission is required to lodge a formal application for the new post with DIAP for consideration, and to furnish the following essential information:

(a) The name and place of the educational institution where the new post is to be created;
(b) the reasons for the creation of the new post;
(c) documentation from the educational institution in support of the new post;
(d) details of the duties to be performed by the teacher/ lecturer at the educational institution;
(e) information, i.e. full name, date of birth, address, etc, regarding the envisaged incumbent of the post, as well as date of appointment and estimated duration of stay in the country. Teachers are not allowed to change schools without prior permission from the DIAP;
(f) All details concerning the outgoing teacher, should a post be filled with a new teacher.

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7 Private Gainful Employment

7.1 Applications for employment

In exceptional cases, the Department of Foreign Affairs, in consultation with the authorities concerned, would be prepared to consider a request from a Mission on behalf of its officers or their spouses, for the necessary authority to accept private gainful employment.


7.2 Reciprocity

Each case will be considered on merit and, on the principle of reciprocity.


7.3 Procedures

A prospective employee is required to complete an application for a work permit (form BI 159) which must be forwarded by the Mission under cover of a Note Verbale stating that the Mission is in agreement with the person taking up employment on a basis of reciprocity, and that the person renounces his/her immunity.

It is important to remember that the overriding consideration in dealing with applications for work permits is whether the employment or task to be performed cannot be undertaken by a South African citizen or an approved immigrant.

Should the application be approved, a document granting permission to the applicant to take up employment, will be issued and forwarded to the mission under cover of a Note Verbale.

The conditions contained in this document must be strictly adhered to.

7.4 Immunity

In the event of approval of the work permit application, the Mission will have to return the certificate of identity which was issued by DIAP for the relevant endorsement, e.g.

(a) Diplomatic

The holder of this certificate is entitled to the immunities as defined in article 31.1(c) of Schedule 1 to the Diplomatic Immunities and Privileges Act, 1989 (Act No. 74 of 1989), read with article 37.1 of Schedule 1 and section 2(1) of the Act in respect of gainful employment.

(b) Consular

The bearer of this document is responsible for any acts performed pertaining to his/her employment.

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8 Locally Recruited Staff

Missions are required to enter into formal written conditions of employment with South African nationals employed as locally recruited staff and observe the provisions of the South African Labour Relations Act in the personnel administration of South African nationals. Similarly Missions are required to administer locally recruited personnel on foreign passports in the same manner.

Foreign nationals recruited by Missions to work as locally recruited personnel in South Africa are regulated by the Department of Home Affairs in terms of the Aliens Control Act. This also applies to dependent children of the diplomatic community on national/private passports. Please refer to Art. 42 of the Vienna Convention regarding dependents issued with diplomatic passports.

A prerequisite for aliens to take up employment in South Africa is to be issued with a Work Permit abroad, ie prior to entering South Africa. A Work Permit is validated for work at a specific employer and for a specific period. Aliens issued with Work Permits are not allowed to either effect a change of employer or to change their status to Residency in South Africa. Should they wish to change employers, even if it is from one diplomat to another, or from one Mission to another, they are required by the Aliens Control Act, to return to their country of origin and apply for the new position from abroad. Similarly, aliens issued with Work Permits are required to leave South Africa and apply from abroad should they wish to reside in South Africa.

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9 Locally Recruited Staff Income Tax

Foreign missions in South Africa cannot be compelled to register as employers in respect of locally recruited staff paid salaries and from whom employees tax should under normal circumstances be deducted.

In terms of the provisions of section 10(1)(c)(iii) of the Income Tax Act, the remuneration of an employee of a foreign diplomatic or consular mission in South Africa is exempt from income tax in South Africa if -

(a) the employee is stationed in South Africa for the sole purpose of holding office in the Republic as an official of a foreign government; and

(b) the employee is not ordinarily resident in South Africa.

The above-mentioned exemption will, however, not apply in the case of a South African national or a person who is in possession of a permit for permanent residence in South Africa and is employed by a foreign diplomatic or consular mission.

Employees, mentioned above are normally referred to as LOCALLY RECRUITED STAFF and are liable to normal tax on all remuneration received from diplomatic or consular missions. Such employees are personally liable to register as taxpayers with the Receiver of Revenue in whose area he or she resides.

In order to assist such taxpayers in meeting their tax liability on an on-going basis they are normally registered as provisional taxpayers thus obviating the need for substantial tax payment on assessment after the end of the tax year.

Missions are required to furnish the South African Revenue Service, Private Bag X923, Pretoria, with the names, residential addresses and salaries paid to locally recruited staff members.

Missions are in this respect reminded of the obligation of a sending State to the receiving State in terms of Article 41(i) of the Vienna Convention on Diplomatic Relations which states:

"Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of that State."

 

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