|Kai Bruns, Keel University, Multilateral Diplomacy and the Negotiation of Diplomatic Conventions
Résumé: the vienna conference on diplomatic intercourse and immunities
A study of success
by Kai S. Bruns (Keele University)
Studying the diplomatic relations between Russia and the United Kingdom is a complex but interesting area. Only a year ago those relations were struck, once again, by the expulsion of four British diplomats from the embassy in Moscow. Without giving any official reasons the Russian government gave those people ten days to leave the country. Although the acting British Foreign Secretary, David Miliband, had been highly concerned about the poor justification he suspected behind the expulsion there was little what he could do. Even though the British had traditionally expected the receiving State giving, at least, reasons for expulsion this is not happening anymore. Since 1964 and by virtue of the Vienna Convention on Diplomatic Relations a receiving State ‘may at any time and without having to explain its decision”1 notify the sending State that any diplomatic agent of the permanent mission is persona non grata and has to leave the country.
This is only one of many examples how the Vienna Convention on Diplomatic Relations has influenced modern State-intercourse. In 1961 the Convention was concluded by a multilateral conference assembled under the auspices of the United Nations in Vienna. The Vienna Conference was one of the first in which diplomatic customs and traditions were codified as international diplomatic law. The progressive codification of this field has been an event of exceptional political as well as legal significance, coming when it did during the Cold War. However, despite its importance for modern diplomatic intercourse, scarcely any comprehensive commentary has been written on this topic. Therefore, a study on the negotiation process will, on the one hand, contribute to a better understanding of the legal foundations of this relatively new field of diplomatic studies. It will facilitate new historical knowledge about the actual negotiations since the historical research on this event has been left out of account entirely. On the other hand, the value of this research lies in its character as a case study of the creation and codification process of international law. Lawyers commonly look at what has been written on a subject. Therefore, this work is going shed new light on key features of diplomatic law.
However, considering its restricted scope this paper is only able to concentrate on some of the most important moments of the Conference and, as a consequence, solely the negotiations of selected Articles will be mentioned. The analysis of these Articles and the preliminaries of the conference will be guided by three main research questions.
Why has the negotiated legal text, ergo the Vienna Convention, been so widely accepted?
Why was the Conference that negotiated the Vienna Convention so successful?
What was the general impact of the conference outcome on diplomatic practice?
The paper will have a brief look at the historical evolution of diplomatic law. It will be shown why codification was needed and why the Vienna Convention on Diplomatic Relations has been accepted so rapidly by the international community. It will be noted in advance that one of the reasons for its success has been the reciprocity that inhabits the field of diplomatic relations. For instance, coming back to our example from the beginning, Russia did not expel the British diplomats without any reason. Moscow’s move was a direct response the expulsion of Russian diplomats several days before because of the Russian’s alleged involvement in the murder of the former KGB agent Alexander Litvinenko.2
Yet and as we will find out, reciprocity is only one example amongst others which are going to be discovered at this stage. By describing the course of the 7th session of the General Assembly of the United Nations in 1952, the audience will be briefly introduced into the background of the discussions that finally led to the creation of a convention on diplomatic relations.
The main discourse will be held on the proceedings of the Vienna Conference. Sources of reference for this part are mainly deriving from unpublished reports and internal correspondence of the Austrian, British, Canadian, German and Irish Delegations found in the national archives of Austria, Germany and the United Kingdom.3 It will be shed light on the preliminaries of the Conference and detailed insight in the shuffling and lobbying for posts that went on and which had probably been normal for a conference of such importance will be given. At this point a short remark will be made towards the international setting of the late 1950s and early 1960s. It will be recognised that certain Cold War issues did well matter and that the first conference days were larded with political issues. Nevertheless, political quarrels are only one aspect and the examples to follow will demonstrate how well organized the Conference was and that even sensitive political discussions were relatively moderate and did not harm the overall friendly-natured atmosphere.
Coming to the most interesting part of the paper, it will be looked at the negotiations of some selected Articles. Here, I will describe how Delegations negotiated, and sometimes ‘bargained’ in order to incorporate their national interests into the Convention. For reasons of clarity, the Articles will be discussed in different groups according to their general nature. In the first instance it will be looked at the negotiations of the general declarations and definitions. This includes the Preamble and Article 1. Although the Preamble is strictly speaking no legal part of the Convention a considerable amount of Delegations desired to include one. As we will see, the Preamble became the linking point between diplomatic practice and its theories and thus has been worth analysing. Article 1 with its definitions laid the basis for precise legal discussions and clarified many important concepts. However, as the negotiation will show, not all concepts could be put into globally acceptable definitions so that the Conference employed omission as its ‘last resort’.
The next group of Articles is dealing with matters of formality including the establishment of diplomatic relations (Article 2), a provision on the declaration of a persona non grata (Article 9) and the formal distinction between different classes of Head of Missions (Article 14). Those Articles were important to the prevailing diplomatic practice as they clarified important issues within the ‘grey area’ of diplomatic relations. The negotiation process of those Articles will show the reader how fast discussions could drift into very difficult terrain when diplomatic practice differed between the major powers. Although Article 2 is one of the shortest Articles it is simultaneously one of the clearest examples of how the convention tackled the vagueness of diplomatic customary law. On the one hand, the Article indicates that there is no such thing as the right of legation. On the other hand, and in a slightly deeper sense, it implies that there is a difference between the establishment of diplomatic relations and permanent missions which means that diplomatic relations can be maintained without the establishment of permanent missions.
Article 9, the persona non grata provision, is more restrictive than the original ILC-draft. The negotiation of this Article gave insight in two important issues: first, it shows that there were not only different diplomatic customs between European and Non-European countries but even between European neighbours such as France and Great Britain which, quite regularly, led to some difficulties during the Conference. Second, the negotiation shows that States desired clarification for sensitive issues such as the expulsion of diplomatic agents and the procedure in the aftermath. At this point the value of codification becomes clear especially when diplomatic relations are on the decline.
Article 14 was a question of importance to the Commonwealth countries. Negotiation showed how the British tried to include the needs of the Commonwealth simultaneously trying to avoid making ‘too much of a fuss’ of the random traditions within the Commonwealth. Furthermore, negotiations revealed that even though the British Delegation enjoyed greatest standing it was only able to influence the Conference outcome but not to dominate it.
The Articles of the third group are dealing with diplomatic immunities and privileges. Especially those Articles can be described as the core of the Convention. Most Delegations were highly concerned about the protection of their personnel abroad as they had always been regarded as some kind of ‘hostages’ within the receiving State. Interesting for the purpose of this paper are the negotiations on Article 22 (Inviolability of Premises of the Mission), Article 27 (Freedom of Communication) and Article 37 (Immunities for non diplomatic agents). Inviolability of the Premises of the Mission was a highly awkward topic with a tendency to politicize negotiations. However, it is an adequate example of the way how leading Delegates such as Ambassador Lall skilfully guided the debate through this difficult terrain avoiding fruitless, political discussions.
Article 27 and 37 are important since they are some of the clearest examples of progressive codification reducing privileges and immunities in contrast to the prevailing practice. Furthermore, the discussion on the Freedom of Communication, here especially on diplomatic wireless, gives to understand that the division of the Conference was rather between North and South than between East and West. The discussion on Article 37 is worth mentioning as, at this stage, the Conference reached deadlock and Delegates could not agree on the extent of diplomatic immunities that should be granted to non-diplomatic agents. Leaving this problem to the regulation by customary international law would have meant a considerable gap of codification which would have questioned the effectiveness and practicability of the Vienna Convention. Consequently, the negotiations of Article 22, 27 and 37 were remarkably tense and thus of special interest for this research. Furthermore, critical moments are always good indicators for conflict-resolution capacities of the key figures of a conference and therefore negotiations gave valuable hints on the individual class of some key Delegates of the Conference. The last group of Articles to come are Article 48 to 53 which formed the final clauses of the Convention. As the description of the negotiation process will reveal, these last Articles were dramatically disputed and paved the way for a last and decisive show down between the US Delegation and Communist as well as Asian Delegations. The discussions centred on issues such as participation, when and how the Convention would come into force and who would become the depository power of the Convention. Politically speaking these were very important details and consequently led the Conference into a long political debate. Generally, this debate can be seen as a reflection of the current political situation to that time, involving the problems of the disputed standing of the United Nations Secretary-General. For the purpose of this analysis it has been an adequate example for the influence that the US Delegation was able to exert whenever it came to a political show down.
Finally, I will come back to the research questions giving my own interpretation of the reasons for the great acceptance and success of both, the Vienna Conference and the Vienna Convention on Diplomatic Relations. Those reasons will reflect that, on the one hand, the idea of codification of diplomatic customs came to the right time. The international community saw urgency in creating clear rules which would not only give guidance to the many new States but would also involve them in the making of international law. On the other hand, customary rules had reached a point at which they could not evolve further. Although the tradition of establishing permanent diplomatic missions had developed since the beginning of the 15th century there were several topics which were not sharply regulated by customary law and which needed detailed clarification. This applied particularly for questions of diplomatic immunities and the degree of inviolability of mission premises.4 Finally, reciprocity is a fundamental characteristic of diplomatic relations and functions as a constant regulator which effectually punishes every abuse or disregard of the established rules. Because every State is simultaneously a sending as well as receiving State it has a vital interest in the compliance with diplomatic law. Furthermore, governments are mostly concerned about the security of their own personnel abroad and, consequently, they will be particularly careful about the reverent treatment given to foreign diplomats.
It can be said that the conference outcome, and here mainly the Vienna Convention on Diplomatic Relations, had a major impact on modern State intercourse. Although the Convention had not introduced any ground breaking new rules, it cleared up the mist of diplomatic customary law and brought a legal framework to the field of diplomatic relations.5 The Articles of the Vienna Convention helped to stabilise the international community at a highly critical moment of the Cold War. States could finally count on clear and indisputable rules on diplomatic immunities and privileges which was especially useful in moments of tension. Furthermore, the success of the Vienna Conference and its Convention led to an enhanced reputation of the International Law Commission which, in following years, was asked to prepare the legal basis for other multilateral conferences establishing international law.6 Besides, as a source of reference the Convention did not only help new States and their diplomats to orientate in the diplomatic world but secured the spirit of ‘equal sovereignty’ between States. This meant that those States and their diplomats were granted the same privileges and immunities as their well established and influential counterparts. Additionally the Convention influenced the scholarly development of diplomatic studies. Serving not only as a reference text for legal quarrels but also as origin of scholar discussions, it has created a point of orientation for academic approaches on diplomatic studies. In contrast to a practitioner who mainly asks for general guidance, an academic needs help for his meticulous work of drawing distinctions between similar or neighbouring concepts. Those academics have found support by the Convention clarifying contentious issues such as whether the establishment of diplomatic relations implies the establishment of permanent missions or whether the alleged right of legation, the ius legationis, existed in reality.