Diplomatic Practice: Between Tradition And Innovation 9789814271257, 9789814271240

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Published by World Scientific Publishing Co. Pte. Ltd. 5 Toh Tuck Link, Singapore 596224 USA office: 27 Warren Street, Suite 401-402, Hackensack, NJ 07601 UK office: 57 Shelton Street, Covent Garden, London WC2H 9HE

British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library.

DIPLOMATIC PRACTICE Between Tradition and Innovation Copyright © 2010 by World Scientific Publishing Co. Pte. Ltd. All rights reserved. This book, or parts thereof, may not be reproduced in any form or by any means, electronic or mechanical, including photocopying, recording or any information storage and retrieval system now known or to be invented, without written permission from the Publisher.

For photocopying of material in this volume, please pay a copying fee through the Copyright Clearance Center, Inc., 222 Rosewood Drive, Danvers, MA 01923, USA. In this case permission to photocopy is not required from the publisher.

ISBN-13 978-981-4271-24-0 ISBN-10 981-4271-24-1

Typeset by Stallion Press Email: [email protected]

Printed in Singapore.

Matthew - Diplomatic practice.pmd

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What’s past is prologue William Shakespeare, The Tempest

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Contents

Preface Chapter 1

Chapter 2

xiii The Permanence of Diplomacy Foreign Policy and Diplomacy Diplomacy as Medium of Communication by Governments Some Clarifications Cyber-diplomacy Accepted Interference Coordinating Foreign Policy and Diplomacy Multilateral Diplomacy Permeable Borders Challenges for Consuls Counter-terrorism Diplomacy Sub-national Diplomacy Disintermediation? Conclusion The Ministry of Foreign Affairs and the Foreign Services A Great Variety The Functions of a Foreign Ministry The Organization of a Foreign Ministry Foreign Service Personnel

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1 1 2 5 7 9 12 14 17 18 19 21 24 28 31 31 32 38 42

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viii Diplomatic Practice

Chapter 3

The Functions of Resident Diplomats Resident Diplomats Representation Protection Negotiation Observation Promoting Economic and Commercial Relations Promoting Cultural Relations Public Relations Military Relations Development Assistance Aiding Democracy and Upholding Human Rights

49 49 51 53 55 58 61

Chapter 4

Interfering and Unwelcome Diplomats Introduction The Prohibition of Interference by Diplomats Influencing the Policies of the Host Country Aiding Democracy Promotion of Human Rights Organized Interference International Cooperation The Diplomat as persona non grata

75 75 76 78 81 83 86 87 89

Chapter 5

Diplomatic Relations The Establishment of Diplomatic Relations and Diplomatic Missions Recognition of a Government The Holy See Changes in the Relationship Rupture of Diplomatic Relations Caretaker Embassies

95 95

63 65 66 68 72

100 102 104 107 111

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Chapter 6

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The Members of Diplomatic Missions Some Definitions The Ambassador The Members of the Embassy: Their Composition The Members of the Embassy: Their Size Inviolability of Diplomats Personal Immunities of Diplomats Personal Privileges of Diplomats The Protection of the Non-diplomatic Staff Families

117 117 118 123 124 129 136 139 142 144

Chapter 7

Diplomatic Missions: Their Premises The Base Camp Inviolability of Premises Bugging Other Immunities and Obligations Protection of the Premises Archives and Documents

147 147 149 152 155 156 164

Chapter 8

Diplomatic Asylum Concept and Practice Asylum Seekers from Third Countries Latin American Practices Practical Difficulties Temporary Refuge An Unsatisfactory Result

167 167 170 172 175 177 179

Chapter 9

An Embassy’s Lifelines Communications The Pouch Telegraphy of Old Information and Communication Technology

183 183 183 188 190

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x Diplomatic Practice

Chapter 10 Special Missions Summitry Foreign Ministers, Special Envoys, and Governmental Delegations The Convention on Special Missions Special Missions and Bilateral Embassies

193 193 197

Chapter 11 Inside an Embassy Similarities and Differences The Ambassador The Political Section The Economic and Commercial Section Development Assistance The Cultural Section The Public Affairs Section The Military Attaché The Administrative Section The Intelligence Unit

205 205 207 210 213 215 218 219 222 223 226

Chapter 12 Consular Functions A Dimension of Diplomacy Specific Consular Functions Protecting Nationals Assisting Detained Nationals Administrative Duties Legal Functions Shipping and Aviation Issues

229 229 231 233 237 242 246 248

Chapter 13 Consular Posts Consular Relations The Staff Consular Privileges and Immunities Consular Premises and Operations The Honorary Consul

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Chapter 14 Multilateral Conferences Multilateral Diplomacy An Example: The Stockholm Conference on the Human Environment Other Examples: G8 Summit Meetings Preparing a Conference Managing a Conference Concluding Remarks

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267 267 270 272 274 277 279

Chapter 15 International Organizations and Diplomacy Basics The Agents Parliamentary Diplomacy Decision Making Privileges and Immunities of International Governmental Organizations The International Governmental Organization and the Territorial State

283 283 285 287 290 293

Chapter 16 Permanent Missions and Their Members The Establishment of Permanent Missions The Functions of Permanent Missions The Organization of Permanent Missions Their Staff Privileges and Immunities of Permanent Missions and Their Members Permanent Representatives and Missions of Non-Member States

303 303 304 306 308 310

Chapter 17 International Secretariats and Officials The International Mandate Their Functions International Officials at Headquarters Privileges and Immunities of International Officials at Headquarters

317 317 318 326 328

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Chapter 18 External Missions of International Governmental Organizations Their Proliferation The FAO in the Field UNDP Country Offices The Field Offices of the Asian Development Bank The Delegations of the European Commission

335 335 337 338 341

Chapter 19 International Treaties and Diplomacy Observations and Definitions The Structure of Treaties Formalities Modalities Invalidity and Termination of Treaties

347 347 351 354 356 360

Chapter 20 Diplomatic Methods The Languages of Diplomacy Translation and Interpretation Diplomatic Language Signaling Diplomatic Correspondence The Mode of Diplomatic Negotiations

363 363 366 369 375 376 382

Bibliography

387

Endnotes

393

Name Index

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Subject Index

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Preface

I had originally in mind to write a textbook on the current practice of diplomacy. Since I did not want to base it only on my experience of 34 years in the German foreign service (from 1964 to 1998), I added many examples from the practices and experiences of various countries. Thus, the result allows the willing reader to understand how diplomacy works and to learn from the examples of worldwide practices. The book may even be useful as a reference guide. My focus is on the existing practice of diplomacy and only occasionally I suggest how it could or should be. To understand the reality of diplomatic practices and to recognize differences, concepts are needed. As a point of departure, I have revived the dualism between foreign policy and diplomacy, foreign policy defined as the contents of foreign relations, and diplomacy as the instrument to manage the goals of foreign policy. As an institution diplomacy follows its own grammar that is based on rules for communication. In my view, diplomacy centers on the state and its little brother, the international governmental organization. I have tried to consider the most relevant features of diplomacy. The reader will observe some peculiarities. I have included consular relations into my account of diplomatic practices. Due to the explosion of tourism and the extraordinary pressures of immigration, consulates and consular offices of embassies play an important role in international relations. Furthermore, I consider consular relations a dimension of diplomacy. I have also tried to do justice to the xiii

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international officials who have become important players on the diplomatic stage. In addition, I discuss the external missions of international governmental organizations. They have not yet found the necessary attention though every diplomat is familiar with their proliferation. A friend of mine was surprised that I could work and write while living in the “hinterland”. However, the Internet has facilitated research. I have made use of Internet sources extensively and quoted them whenever possible. I was also lucky that the Cape Coral Public Library allowed me to use its inter-library-loan system frequently. After having retired from the German foreign service I had the privilege to become a member of the International Relations Faculty of Boston University. I was happy to be given the opportunity to pass down some of my experiences as a diplomat to the young generation. The manuscript for my lectures on diplomatic practice became the basis for this book. I am grateful for the good advice of my friend and colleague Walter Lewalter, a former German ambassador to Bulgaria, Indonesia, and the United Nations in Geneva and inspector general of the German foreign service. I am equally indebted to Lois Hohman who reviewed the text. It was a pleasure to cooperate with my editor, Mrs. Sandhya of World Scientific Publishing. Of course, I am alone responsible for the text. Cape Coral (Florida), Christmas 2008 Juergen Kleiner Ambassador (Ret.) Professor Emeritus of International Relations (Boston University)

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The Permanence of Diplomacy1

Foreign Policy and Diplomacy Diplomacy is an instrument of statecraft. It originally was an instrument of states to deal with other states. After international governmental organizations (IGOs) had been established they also became involved in diplomacy. The focus of diplomacy was and is on communication. How statecraft is used towards the outside world is expressed in a country’s foreign policy or an IGO’s policy. Diplomacy is used to manage the goals of foreign policy.2 As far as content is concerned, diplomacy is a dependent variable of foreign policy. Whatever goals are to be attained, diplomacy follows its own grammar. Diplomatic work proceeds along the same norms, rules, and practices that are appropriate to reach the target. As far as its functioning is concerned, diplomacy is an independent institution, only subject to historical contingencies.3 The dualism between foreign policy and diplomacy is the starting point for an analysis of diplomacy.4 Some more details are in order. Foreign policy is the content of foreign relations, comprising the aspirations and aims, which a country wants to achieve in its relations with other states and IGOs. States define their interests. Since interests of states are heterogeneous they cannot be subsumed under a common denominator. Some countries use to formulate and publish their foreign policy goals.5 Often a state’s foreign policy goals are contained in various documents, including important statements, speeches, and interviews of political 1

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leaders, releases for the media and instructions to diplomats. Sometimes a country’s foreign policy goals are not published, but kept secret. International relations are, however, influenced only partly by strategic plans. External events often surprise policy makers and make adaptation necessary. In addition, the goals of a country’s foreign policy are increasingly influenced by domestic forces. Thus, the objectives of a country’s foreign policy undergo frequent changes. In democratic countries, foreign policy decisions are reached by those organs, which are given the responsibility by the constitution. In countries governed by other political systems, foreign policy decisions are made by those officials or bodies that are in power. Foreign policy is decided upon by politicians in capitals of nations. There are many actors on the international stage. Among them, states are still the most important since only they have far reaching, comprehensive functions. Only they have law making and law enforcement powers. International agreements and treaties can only have binding nature if states so decide. International governmental organizations are founded and kept going by states. In working with and within IGOs states manage parts of their foreign policy goals. The implementation of an IGO’s policy decisions is regularly left to member states.6 However, IGOs have increasingly set up their own diplomatic machinery to manage their policies. Diplomacy as Medium of Communication by Governments Diplomacy attempts to manage the goals of foreign policy, mostly by implementing goals but also by preparing foreign policy decisions. As an institution, that is as a pattern of behavior, diplomacy is based on an established body of rules and practices for communication.7 The communication paradigm makes the institution of diplomacy comprehensible.8 At first, the readiness to communicate must be declared. This is done by establishing diplomatic relations or becoming a member of an IGO. Since diplomacy is basically an intersubjective interaction and the artificial man, the state, and his little brother, the IGO, cannot speak, persons must be designated

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The Permanence of Diplomacy 3

who do the talking. Therefore, bilateral ambassadors are accredited; the appointments of other diplomats are notified. Diplomats receive their instructions from governments, but they do not represent governments, but states.9 A country is not obliged to accept the person nominated by the sending state as interlocutor. Even after it has accepted a diplomat, the receiving state can at any time and without explanation declare a diplomat persona non grata. The diplomat is the one who has the direct contact with the foreign partner. Diplomats do not only talk to official agents of the host state but to a variety of people and organizations. The official agent has been the backbone of diplomacy from the earliest times in recorded diplomatic history.10 For communication language is crucial. Therefore, the knowledge of foreign languages, preferably proficiency, is important for diplomats. If a diplomat does not speak the language of the counterpart they can choose a third language. Latin, and since the middle of the 18th century, French served as lingua franca of European diplomacy. At present English is the most frequently used working language of diplomacy. If joint documents such as treaties are set up, a prior agreement about the language to be used must be reached. Furthermore, it has to be stipulated which text is authoritative. International governmental organizations must decide which languages they use as official and working languages. Often professional linguistic assistance is needed. Translators and interpreters contribute crucially that diplomacy can fulfill its function of making communication between states and their agents possible. The words and style, which diplomats use, depend on the situation that they face. Sometimes diplomats have precise instructions which language to use or to avoid. For the forms of diplomatic correspondence practices have been developed. Chiefs of mission correspond with the foreign minister of the host country by formal notes written in the first person. Diplomatic missions correspond with foreign ministries by notes verbales written in the third person. Aide-memoires, bouts de papier, memoranda, non-papers, and all types of letters offer a rich choice for diplomatic correspondence. In spite of the many calls for open diplomacy the confidentiality of

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diplomatic negotiations has survived since it alone guarantees to exclude interventions from outside and a loss of face for the partner who has made concessions. Those few rules of protocol that have survived up to now, such as those for receiving of a new ambassador, state visits, using titles, making calls or seating arrangements, are thought to show respect or to facilitate interaction. Signaling, that is communication by non-verbal means, supplements talks and correspondence. An important part of diplomatic activities are negotiations, a special form of communication. Negotiating means trying to reach an understanding by discussion. Sometimes the understanding takes the form of an agreement, that is a treaty in writing. It is easy to reach an understanding if the national interests of the partners overlap. In this case the diplomat performs the traditional role of trying to balance the interests of states. The diplomat’s aim of protecting his country’s interests is realized by cooperation, by trying to avoid clashes between the diverging interests, and by intervening if violations occur. Observing the developments in a host country or an IGO and reporting about them facilitate the understanding and thus create favorable terms for a dialogue. Diplomats face competition by the press, press agencies, radio, television, and the World Wide Web. However, the diplomat is needed to assess the relevance of the information with regard to his country’s and the host country’s foreign policy. That is, the diplomat is needed for “proper contextualization”.11 Sometimes his evaluation will not reach home quickly enough. The diplomat’s judgment is also needed to assess the validity of his interlocutor’s statements. Reports of diplomatic missions regularly contain a section in which the validity of the information is assessed. The cultural policy of diplomatic missions also aims at improving the mutual understanding. The preponderance of economic issues in international relations has often led to a shift from a political dialogue to an economic one. There are traditional taboo areas for diplomatic intercourse. Diplomats may use only lawful means, have to respect the laws and regulations of the host country, and are prohibited from interfering in the internal affairs of that country. The host country also has

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obligations towards foreign diplomats. A meaningful communication is only possible if the diplomat is free from harassment. In order that they can perform their functions diplomats enjoy inviolability. Some of the rules for diplomacy and diplomats have been laid down by international treaties. At the center of these regulations are those concerning the status of diplomatic missions and diplomats, that is their protection, inviolability, immunities, and freedom of communication. Different treaties are in force for different categories of missions and diplomats, particularly for bilateral missions, consulates, special missions, permanent missions to IGOs, the international civil service, and external missions of IGOs.12 The rules contained in these treaties differ according to the functions of the missions and diplomats in question. Summing up, diplomacy is to be understood as the management of a country’s or an IGO’s policy by official agents via communication with state and non-state actors of other countries and with IGOs according to established rules and practices. This is more or less the conventional understanding of diplomacy. New trends, however, are developing. In the following an effort is made to take stock of the effects of new trends on the institution of diplomacy. Before starting this analysis some clarifications are necessary. Some Clarifications In the relationship between the foreign ministry and the diplomatic mission the difference between foreign policy and diplomacy is obvious. The foreign ministry decides about the goals and the diplomatic mission gets into direct contact with the authorities of the foreign country. The foreign ministry of the sending country, for example, decides that it will work for a wide membership of a treaty and instructs its embassies in various receiving countries to make interventions to persuade these countries to join the treaty. The embassies then get into direct contact with the authorities of their host countries. Even if the ministry gives detailed instructions how to carry out the interventions it does not venture into diplomacy since these instructions are of an internal nature. Sometimes,

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diplomatic missions suggest to their foreign ministries how to react to changes in the host countries and thus contribute to shaping foreign policy. Whether a government follows its embassy’s suggestions depends on the circumstances. One should think that an embassy’s proposals that are based on an assessment of the situation in the host country have a good chance to be accepted. However, this is not always the case. Bruce Laingen, chargé d’affaires of the US embassy in Teheran from 1979 to 1981, had warned against admitting the deposed Shah of Iran too early to the United States. In spite of his warnings, the Carter administration decided at the end of October 1979 to admit the Shah to the United States for medical treatment. This decision triggered the storming of the US embassy in Tehran by Iranian students on November 4, 1979. Laingen commented this development as follows: “… a recommendation from an embassy in the field, from a chargé in the field, from an ambassador in the field, to Washington is only one of a large inflow of views affecting policy in Washington”.13 The same is true for most, if not all, capitals. The distinction between foreign policy and diplomacy becomes more difficult when those who make the foreign policy decision also engage in contacts with foreign partners. Today, summitry has become a part of diplomacy. Direct contacts between the leaders of states are normal and frequent events. Chief executives of countries, presidents, minister president, prime ministers, or chancellors, who are responsible for political decision making, often take part in conducting foreign policy. They know each other, they call each other, and they meet each other. Meetings of chief executives have also been institutionalized in various settings. The heads of state or government of the eight industrialized countries meet within the G8 framework. The chief executives of the North Atlantic Treaty Organization (NATO), the European Union (EU), the African Union (AU), the Association of Southeast Asian Nations (ASEAN), and the Asia-Pacific Economic Cooperation (APEC), for example, get regularly together. Foreign ministers meet with even greater frequency. Sometimes, travel diplomacy develops into shuttle diplomacy. The traveling of foreign ministers often seems hectic,

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particularly if compared with the style of their predecessors a century ago. Indeed, Sir Edward Grey never once traveled abroad during his long tenure as Britain’s foreign secretary from 1905 to 1916.14 The discussion between statesmen can aim at foreign policy or diplomatic issues. For example, when statesmen of two or more countries decide to fix a precise limit for emissions that are harmful for the climate it is a foreign policy decision. When a foreign minister calls a colleague asking him to support a candidature in an IGO it is a diplomatic effort. As long as statesmen work from their offices at home these activities do not award them a special status. When heads of state or of government, or foreign ministers or other persons of a high rank travel to a foreign country on official business they enjoy exceptional privileges.15 Cyber-diplomacy The intention to influence public opinion in other countries has been a part of the foreign policy of many governments long before the term public diplomacy was coined. Diplomats not only talk to officials of the host government but also reach out to the public. Diplomats talk to representatives of political parties, trade unions, churches, universities, business, and a wide array of the civil society. The intention is mostly to gather information and develop a network of people inclined to cooperate with the mission. At the same time these contacts are thought to create or reinforce friendly feelings in the targeted country with the hope that these feelings result in friendly relations. The promotion of cultural relations also pursues the aim to make friends and forge ties. Public relations are a more systematic approach to influence the public of the host country. Public relations work of old tries to use the host country’s media. Missions also try to get into direct contact with the host country’s public. All these steps are taken with a view to influence a foreign government through influencing a country’s public. The final goal of public diplomacy, though only pursued in an indirect way, is the host country’s foreign policy.

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Modern information and communication technology (ICT) that is based on digital electronic processing has provided governments, diplomatic missions, and IGOs with new powerful tools to promote their policy and improve their image abroad.16 Many foreign ministries, IGOs, and diplomatic missions have their own web sites and use them to disseminate information. This means that it is now possible to reach beyond the receiving state’s government by directly addressing a broad public of the targeted country. Interactive web sites, chat-rooms, and e-mail make even a dialogue with the public of the host country possible. Since in various countries the influence of public opinion on government decisions is increasing, public diplomacy becomes more and more important. Public diplomacy is now not only a vastly improved tool for diplomacy but also a challenging task for diplomats. Only the efforts of governments to influence a foreign government through interacting with its citizens deserve to be termed public diplomacy. However, the definitions of public diplomacy have changed.17 Sender and addressee got wider interpretations. Social channels were added to the sponsoring side. Political parties, corporations, academic institutions, religious organizations, NGOs, and many other institutions and individuals may help to improve a country’s image abroad. These private efforts, however, do not necessarily happen within the framework of a country’s foreign policy. Therefore, there is no need to term these activities diplomacy. It is interesting to note that the Foreign and Commonwealth Office, when considering the definition of public diplomacy, rejected a proposal that lacked “an essential reference to public diplomacy being in support of Government goals or objectives”. It preferred the definition of public diplomacy as “work aiming to inform and engage individuals and organizations overseas, in order to improve understanding of and influence for the United Kingdom in a manner consistent with governmental medium and long term goals”.18 While this definition put public diplomacy within the framework of the sending state it dropped the idea that the activities are supposed to influence the foreign policy of the targeted country. Thus the receiving end of public diplomacy was widened. In some

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countries there are heterogeneous networks of private organizations, which cooperate with equally heterogeneous networks of private organizations of other countries and influence each other. There is a new tendency to consider public policy as directed at influencing the society of another country, but not necessarily that country’s foreign policy.19 Nothing is gained by terming these exertions of influence diplomacy. It boils down to summarize all influences from the society of one country to the society of another country under the heading of public diplomacy. Accepted Interference International cooperation has enhanced the interdependence of states. Many states have an interdependent relationship with another state: Both states depend economically, financially, technically, and/or politically on each other. The degrees of interdependence, however, vary greatly and have to be assessed case by case. The question whether and how these linkages contribute to prevent conflicts has been discussed frequently. The focus here is on the question how interdependence has influenced diplomacy. If the forces of interdependence are strong the discussion of internal affairs of the partner is necessary and accepted. The difference between “we” and “them” is melting away. Governments often no longer refer to the prohibition of interference in their internal affairs. For example, the United States and Japan have reciprocal relations. For Japanese exports the United States is still the most important market. In 2005 it absorbed 22.9% of Japanese exports. The United States is a favorite place for Japanese foreign direct investment, its share value amounting to $190 billion in 2007. The United States is also Japan’s only military ally that guarantees the country’s security. For the United States on the other hand Japan is the third largest market for its exports and a source for strategic goods like semiconductors. Japan is a major buyer of American Treasury bonds that are sold to finance the huge deficit of the US trade balance. Japan is also a reliable military ally. This close

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relationship makes it unavoidable that many issues are discussed between partners and some of them are controversial. In a speech on US-Japanese relations delivered before the Yomiuri International Economic Society on June 15, 2007 US Ambassador to Japan Schieffer addressed US concerns such as the protection of intellectual property rights, freer trade in manufacturing, agriculture, and services, more transparency of government regulatory processes, and better opportunities for American investments.20 He even discussed the lack of productivity of the Japanese economy, Japanese protectionism, the privatization of government institutions, and the need for reforms of the financial markets. For many years the US government had worried over the Japanese reluctance to open their markets for American imports and investments. A particular concern was American beef exports to Japan. As could be seen from the “Hot Topics” on the web site of the US Embassy in Tokyo US in June 2007, American beef exports to Japan were still facing obstacles. The Japanese government on its part insists on regulatory reform and changes of the competition policy by the United States. It has summarized its recommendations in a paper published on the web site of the Japanese Embassy in Washington.21 Japan complains among other things about arbitrary anti-dumping measures, the lack of transparency for investment conditions, measures of counter-terrorism that impede the transport of goods, delays in consular procedures, the patent system, the Buy American laws, extraterritorial application of US domestic laws, anti-trust laws, burdensome aspects of the American legal system, and barriers in the area of telecommunications. When American diplomats discuss their concerns with the Japanese government in Tokyo and Japanese diplomats their concern with the US administration in Washington they deal with subjects that are within the sole jurisdiction of the partner. Only the Japanese government can change its regulation in order to facilitate economic exchanges with the United States and vice versa. By their discussions the diplomats interfere in the internal affairs of the host country. Exactly this is forbidden by Article 41, para. 1,

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of the Convention on Diplomatic Relations (CDR).22 A diplomat who disregards this prohibition can even be declared persona non grata (Article 9 of the CDR).23 Interdependence, however, works in both directions. Both sides are interested that their arguments are heard. Therefore, it does not help to refer to the prohibition of interfering in the internal affairs of another country. In such cases of interdependence interference is accepted. At the same time, the scope of diplomatic issues has widened. There also exist imbalances in international relations that defy the description of interdependence. This is nowhere more obvious than in the relationship between industrial nations and developing countries. The relations between Norway and Tanzania may serve as an example.24 Norway has only approximately 12% of Tanzania’s population of approximately 39 million but is an industrialized country and has chosen Tanzania as one of its main recipients of development assistance. At the beginning of 2007, Norwegian Ambassador Jon Lomøy stressed that Norway preferred to move “towards a more equal relationship” but that the areas of cooperation should also reflect Norwegian political priorities.25 The areas of cooperation comprise among others: general budget support, anticorruption initiatives, education, local government reform, building roads, the management of natural resources, health care, and electrification. Since it is the task of the embassy to oversee the development cooperation, the Norwegian diplomats will discuss all of these subjects with the government of Tanzania. They will certainly try to treat the Tanzanian government officials as partners but cannot avoid getting deeply involved in internal affairs of the host country. Tanzania has no chance but to accept Norway’s involvement in Tanzanian policies. Thus, development assistance has also widened the scope of issues of diplomacy. Much of development aid is distributed by IGOs, such as the United Nations Development Program (UNDP). When a receiving country discusses assistance with a country office of UNDP it also has to accept that its domestic policies are discussed. Since the lack of good governance is often the main obstacle to successful development, receiving countries are forced to even discuss their way of

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government. In these cases, the prohibition of non-interference is meaningless. The promotion of human rights by a diplomatic mission of a Western country abroad, however, is often met with resistance by the host country. Host countries often call it interference in their internal affairs. It is interference indeed because the embassy is attempting to protect citizens of the host country against their own government. The same is true for the efforts to promote democracy in another country. Independence includes the right for every country to decide which path it wants to follow and by which means. Host countries make use of their right to declare a diplomat in such a case persona non grata. The promotion of human rights and democracy suffers additionally from the fact that they are selective efforts. Coordinating Foreign Policy and Diplomacy When diplomats work at home in the foreign ministry they get involved in foreign policy making and diplomacy. They draft policies for the political leadership of the country by producing submissions (memoranda) for their superiors. They draft speeches, articles for newspapers, press releases, and presentations for the legislature. In this capacity they have an impact on policy making. Their instructions to their diplomats abroad are often of a tactical nature. They also are the interlocutors of the foreign diplomats accredited to their country discussing with them diplomatic issues. The points of contact between states have increased dramatically. International trade, tourism, migration, development assistance, and cultural exchanges have linked countries together. Issues that used to be considered part of the domestic domain, such as matters of the police or administration of justice, figure today on the international agenda. Foreign ministries have neither the knowledge nor the manpower to deal with the widening scope of foreign relation issues. Therefore, many other government agencies fill in. For example, to solve international environmental problems the expertise of the officials from the ministry of environment protection

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is necessary, to fight international threats to the health the experts from the ministry of health have to get involved, to develop international standards for working conditions the ministry of labor has to cooperate. How many ministries are having contacts with foreign partners and how intense these contacts are, mainly depends on the issues in the center of a country’s foreign policy and/or the closeness of the relationship between the countries in question. For the United States it has been said that departments and agencies responsible for economics, defense, and law enforcement played “an active role in pursuit of American interests abroad”.26 In an EU country such as Germany, for example, nearly all ministries have contacts either with the embassies from EU countries in Berlin or directly with their counterparts in the capitals of EU member states. It has been suggested to make a difference between foreign policy and foreign relations of the specialized ministries.27 This, however, is an artificial differentiation. Whatever is said and done by government officials in relation with foreign partners is attributed to the state they represent. Governments are striving to follow a coherent foreign policy into which all details fit. Officials from ministries other than the foreign ministry mainly negotiate with their foreign counterparts. They are preparing foreign policy decisions as well as taking part in diplomacy just as the officials from the foreign ministry do. As long as they work form their offices at home they do not enjoy a special status and are not diplomats in the technical sense. In Western countries the precedence of foreign policy (das Primat der Aussenpolitik), a cornerstone of the realist theory of international relations, no longer exists as constant feature. No other development has affected foreign ministries more than the outsourcing of the responsibility for foreign relations. The task of a foreign ministry is often just a coordinating one. Increasingly officials from ministries other than the foreign ministry are assigned to a diplomatic mission abroad or to a special delegation. In that capacity they enjoy the same protected status like all other members, that is diplomatic status. The percentages of officials from special ministries and agencies in diplomatic

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missions differ from sending state to sending state and from embassy to embassy. In 1997, for example, 63% of the personnel of US diplomatic and consular missions abroad were not State Department employees.28 It must be assured that the chief of mission has the final say internally. In view of the delegations that may be active in a receiving state, the embassy must have a coordinating function in order to make sure that the delegation work fits into the sending country’s policy. The German Foreign Service Act mentions expressly the task of a diplomatic mission to coordinate official business carried out by officials from home in the host country.29 American regulations give US chiefs of mission authority over all US government employees (except those under a military commander) in the host country.30 The question, however, remains whether the chiefs of mission are strong enough to realize their authority.31 The Report The Embassy of the Future by the Center for Strategic and International Studies (CSIS) suggests that the ambassador’s authority should be codified in an executive order to give it permanent validity.32 Multilateral Diplomacy Whenever more than two states have to deal with an issue multilateral diplomacy is in demand. International conferences are a traditional tool of diplomacy. Since the world has become smaller the calls for multilateral diplomacy have become louder. The Doha Round of the World Trade Organization (WTO) tries to lower trade barriers around the world. Since August 2003 six-party talks are held between the United States, China, Russia, Japan, South Korea, and North Korea concerning the North Korean nuclear activities. Also since 2003 the Foreign Ministers of France, Germany, and the United Kingdom, the so-called E 3, are discussing questions concerning the Iranian nuclear program in Teheran with Iranian government officials. Diplomats from the United States, European Union, Russia, and the United Nations, called the Quartet, are charged with promoting peace in the Middle East. The UN Climate Change Conference that was held in Indonesia in December 2007 tried to revive the Kyoto Agreement.

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Many international problems need to be dealt with on a permanent and stable basis. Therefore, IGOs were founded. To facilitate technical cooperation, to accelerate economic cooperation, to fight hunger, promote development assistance, foster cultural relations, protect human rights, save the natural environment, and avoid wars are some of the aims pursued by international organizations. Their numbers have proliferated, and the scope of their decision-making authority has expanded. The membership of states in IGOs and thus their integration in the international community differ considerably. Small states, such as Palau, Andorra, or San Marino, are members in less than 20 IGOs while Western European countries, led by France and Germany, are members in more than 100 IGOs.33 IGOs fulfill functions for which states would be responsible if the organizations did not exist and they do so increasingly. This is nowhere more obvious than in the case of a supranational organization like the European Union (EU) that demanded a considerable sacrifice of authority by its member states.34 That states are in retreat in favor of IGOs does not mean a weakening of diplomacy, but a shift from bilateral to multilateral diplomacy. Diplomacy at IGOs is focusing on negotiations intended for the preparation of the organization’s decisions. IGOs have added new platforms and new functions to diplomacy. Multilateral diplomats who work in permanent missions to international organizations have a double function: they represent their states to the organization and participate on behalf of their states in the proceedings of the organs of the organization.35 Representing the sending country to the organization means maintaining contact with the organization and protecting the country’s interests towards the organization. They do not only negotiate among themselves, but also often include the staff of the secretariats. Providing the sending country’s participation within the organization means filling their country’s seats within the various organs of the organization. Thus, they “become, in a sense, a part of the Organization”.36 The decision making within an IGO resembles that within a parliament. Therefore, the work of multilateral diplomats is often called “parliamentary diplomacy”.37

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Multilateral diplomacy has created a new type of diplomat, the international civil servant. This was originally not intended. The secretariats of the early IGOs such as the Universal Postal Union (UPU) were supposed to perform only supportive, administrative functions. Later the tasks of the secretariats of IGOs expanded.38 It became their task to take care of the organization’s common interests.39 Secretariats have become more independent and often take part in shaping the organization’s policy. They may even fulfill political functions. Since they carry out international functions they are exclusively international agents.40 Regularly, intergovernmental organizations have to rely on member states for the implementation of their policy decisions. For example, when the Security Council of the United Nations imposes sanctions it has to call on member states to comply with those measures. This means that diplomacy results in the organization’s policy but that there is no diplomatic machinery to apply the policy. As a reaction to this unsatisfactory situation IGOs have established, in increasing numbers, external missions at other IGOs, in member and non-member states. UNDP has 166 country offices.41 The UNDP Resident Representative has an important role to play since he normally serves also as the Resident Coordinator of all UN development activities in the host country. Many other IGOs, particularly the specialized agencies and other bodies of the UN system, are represented abroad by resident or special representatives or country directors. Most of the external missions sent by various UN agencies and bodies are dealing with development assistance to the receiving country. Wherever the diplomats of external missions of IGOs work they remain international civil servants. The process of integration among EU countries and the widening responsibilities of the European Commission resulted in the creation of an external service of the Commission. From modest beginnings this external service has developed in one of the largest foreign services worldwide. At present the European Commission maintains 118 delegations in third countries and five delegations at IGOs.42

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Permeable Borders Diplomacy is a cross-border business. How has it been influenced by the forces of globalization that disregard borders? Globalization powered by modern information and communication technology, trade and financial liberalization and worldwide integration of production has created multinational corporations (MNCs) and international financial markets. The multinational corporations have scattered their operations around the globe. They operate where they find the best conditions. In the international financial markets, capital mobility has reached a hitherto unknown speed. The numerous possibilities of communication via ICT cross border at ease. The cross-border transactions elude the control of the state. Thus the borders of the state have become more permeable than before. In other words, globalization renders territory less important. Territory, however, is the basis of statehood since the Westphalian system created the territorial state. The Treaties of Muenster and Osnabrueck of 1648 confirmed the authority of the princes in “the free exercise of their territorial rights in ecclesiastical as well as in political matters” (“libero iuris territorialis, tam in ecclesiasticis quam politicis exercitio”).43 Within its borders the state had ultimate power over everybody. Neither the emperor, nor the pope nor a feudal lord, could interfere. Globalization, however, affects territory and thus the basis of statehood. It “has diluted the importance of the veil of statehood”.44 The greater permeability of state borders also affects diplomacy. Globalization is not a phenomenon of nature that comes into being and develops by itself. It is possible only if states permit or favor liberalization and integration. Globalization is “chosen”, as Martin Wolf has put it.45 Globalization puts constraints on states, but states continue to be asked to regulate their economies. Since many people lost their jobs and feel disadvantaged by globalization there is strong pressure on some governments to fight the negative effects of globalization. Whenever legal rules are needed to foster or control developments or to curb excesses, only states and IGOs can create and institute them. Since globalization is an international

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development, international cooperation is necessary, for example, if harmful tax competition is to be fought, labor standards are to be improved, anti-trust regulations are to be introduced, or financial markets to be controlled. It will be the task of diplomacy to achieve such goals, particularly by preparing international treaties. Therefore, bilateral and particularly multilateral diplomacy is needed. States and IGOs are in demand since only they have the capability to lay down enforceable legal rules. Thus, diplomacy will continue to contribute to establishing rules of international law. Globalization has added new chapters to diplomacy. Challenges for Consuls Consulates are mini-embassies. Exactly like embassies, consulates have the function to protect the interests of the sending state, to promote friendly relations and develop commercial, economic, cultural, and scientific relations (Article 5, lit. a and b, of the CCR). They also have the right to observe developments in the host country and report about them (Article 5, lit. c, of the CCR). The activities of a consulate are, however, restricted to its district. Consulates are part of the communication network between the sending and receiving country. Additionally, consulates and consular sections of embassies have the functions to protect the interests of the sending state’s nationals and to perform administrative and legal functions in the receiving country. When fulfilling their specific consular duties, consuls have two groups of clients: citizens of the host country and compatriots. The contacts with citizens of the host country, for example the discussion of a visa application, fall under the communication paradigm. The point is that consuls deal with individuals. Also many of a consul’s activities to protect his compatriots need contacts and support by agencies from the host country. When a tourist gets in trouble, for example when he or she is detained or kidnapped, the consul can help only if the receiving country’s competent authorities cooperate. Thus, the ability to communicate with the representatives of the host country is crucial

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for consuls as well. There are some duties the consul has vis-à-vis his compatriots that are of a purely internal character, for example the issuance of a passport, the legalization of a document, or the taking of evidence of a maritime accident. The explosive development of international tourism since the end of the Second World War has tremendously enhanced the traditional function of the consul to help and protect his nationals. The consuls of the largest tourist exporters, such as the United States, Germany, the United Kingdom, Japan, and France, have their hands full to assist their countrymen in need. The extraordinary pressure of South–North migration has brought long queues of applicants before the gates of the consulates of Western countries and made decisions about visas in many cases the consulate’s main activity. Since the missions deciding about visa applications defend their countries’ borders it goes too far to consider diplomacy as threatened by deterritorialization.46 It is often the consul who is in the front line, defending his country’s interest. Even consular work in the narrower sense — the protection of the interests of the sending country’s citizens and the exercise of administrative and legal functions — happens within the framework of a country’s foreign policy. By issuing or denying a visa, for example, the consul translates his country’s immigration policy into action. This policy may affect the sending country’s image in the receiving state or a third state.47 A kidnapping case, to mention another example, can easily become politicized requiring discussion on a high government-to-government level. Unfortunately kidnapping cases happen frequently. Consular relations are correctly considered a dimension of diplomacy.48 Counter-terrorism Diplomacy Another reason for the state’s weakening sovereignty is cited: the waning of the state’s function to wage war.49 Nuclear weapons, it is argued, are so destructive, particularly when combined with modern missiles, that, since Hiroshima and Nagasaki, the nuclear states have relied on them only as a deterrent. In order to ensure that

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nobody uses these weapons, policies of disarmament have been introduced. The development has been accompanied by drastic reductions in the size of regular troops and their weaponry. Many states feel that the threats to their security no longer justify greater efforts. The conclusion, however, that this development has negatively affected the state’s authority goes too far. What has happened is a shift of emphasis from waging war to securing peace. States continue to be ready to defend themselves. In view of the tremendous organizational, logistical, and budgetary problems there is no substitute for the state in matters of security. The fight against terrorism has added a new dimension to these endeavors. There are now military conflicts of an asymmetrical character with non-state actors. The fighting in Afghanistan since the fall of 2001 and in Iraq since 2003 are cases in point. The fight against terrorism has strengthened state authority since people turn to their governments demanding protection. Thus the core function of the state to protect its people from harm is very much alive.50 Since terrorism is a worldwide threat international cooperation is necessary to fight it. Though counter-terrorism is first of all the task of intelligence agencies, it has also brought along additional tasks for diplomacy. Foreign ministries have established counterterrorism units.51 They cooperate with international partners. The State Department’s counter-terrorism office, for example, tries to enhance the capacities of partner countries to resist the terrorist threat. Therefore, it developed anti-terrorism assistance, counterterrorism finance, and terrorist interdiction programs with other countries.52 Bilateral diplomats abroad are trying to secure the cooperation of other states in fighting terrorism and request the extradition of terrorists. Sometimes, a diplomatic mission may get more closely involved in the fight against terrorism. Since the summer of 1998, the US Embassy in Islamabad urged the Taliban to take Bin Laden into custody or to expel him.53 Multilateral diplomats prepare joint initiatives and treaties against terrorist activities. The Global Initiative to Combat Nuclear Terrorism was launched by President Bush and President Putin and endorsed by many other countries.54 In October 2006, 13 countries reached agreement

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on the principles for the initiative and its implementation. Diplomats at the United Nations have been working many years on resolutions and treaties of counter-terrorism. In September 2006, the UN General Assembly adopted the Global Counter-Terrorism Strategy.55 It seems that terrorism will be for quite some time on the international agenda and keep diplomats busy. Sub-national Diplomacy Sub-national units such as states of a federation, provinces, and cities take part in international relations. Their interactions with the outside world are called paradiplomacy or constituent diplomacy. It is interesting to find out whether the sub-national units get involved in diplomacy understood as the implementation of foreign policy. Examining some examples it becomes obvious that not all interactions of sub-national units with the outside world deserve to be called diplomacy. The efforts of US state and local governments to use economic sanctions in order to influence foreign actors have been much discussed.56 Here are some examples: In the mid-1970s some state governments established penalties for companies that complied with the discriminatory requirements of the Arab boycott of Israel. When Congress in 1977 passed a similar law the states had succeeded in influencing the Middle East policy of the administration in Washington. Protesting against the apartheid regime in the 1970s, more than 150 states, counties, and municipalities imposed sanctions against firms doing business in South Africa. When talks about claims by Jewish victims against Swiss banks stalemated at the end of the 1990s state and local finance officers stepped in. After they threatened to implement sanctions against Swiss banks and other Swiss enterprises a settlement was reached. The administration in Washington had considered the sanctions an infringement on its exclusive responsibility for foreign policy. In 1996 the Commonwealth of Massachusetts barred its state agencies from buying goods or services from any person doing business with Myanmar. Their aim was to achieve a change of Myanmar’s

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domestic policies. Three months later Congress passed also a federal law imposing sanctions on the government of Myanmar. This law, however, granted the president great flexibility. Court procedures ended with a decision by the Supreme Court.57 The Court held that the Massachusetts law undermined the president’s control of the sanctions, that the sanctions were global and hindered the president from developing a strategy towards Myanmar. The Court, therefore, declared the Massachusetts law unconstitutional because it conflicted with the federal law. In all of the cases mentioned above, state and local governments pursued foreign policy goals by internal decisions. There were occasional meetings with foreign government officials, but basically the state and local governments did not get involved in diplomacy. The activities of the German states (Laender) are different.58 They have a constitutional right to be involved in the federal legislation through the second chamber (Bundesrat). Many subjects for which the states have a responsibility are now decided in Brussels by the competent EU bodies and have later to be passed through the German legislative process. The German states have set up representative offices to the EU in Brussels.59 Through these offices they try to be informed about developments in time and to influence discussions in Brussels. The German states are also committed to other transborder activities. They are active in regional cooperation, cultural exchanges, and immigration policy. They even grant development aid, however, in general agreement with the federal government. Many of these activities see the states’ representatives working abroad. Thus the German states influence foreign policy and get involved in diplomacy. They contribute to sub-national diplomacy. States of a federation promote their businesses and industries abroad. American and German states send delegations on marketing missions that regularly comprise representatives of state government and business. For example, in March 1999, the governor and businessmen from Maine undertook a trade mission to neighboring Nova Scotia.60 The promotion of economic cooperation is a matter of concern of all central governments and has become

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one of the prime responsibilities of diplomatic missions. This is particularly true for countries that depend considerably on their exports. Internal regulations in these countries insist that diplomatic missions, and also the heads of mission themselves, make trade promotion a priority. Additional efforts by states and local governments are accepted since they are aimed at promoting the welfare of the citizens under their jurisdiction. In the German system, diplomatic and consular missions assist delegations from states and local governments in preparing and carrying out the visit. The promotion of business and industries abroad by state and local governments assists in shaping economic foreign policy and also qualifies as sub-national diplomacy. The states of India do not give development aid but receive development aid. They negotiate the conditions for aid, for example, with the Word Bank. Their influence is modest since the central government often intervenes and is always made the official borrower.61 Therefore, the states of India have only a limited influence on India’s economic foreign policy and play an equally limited role in sub-national diplomacy. Cities have established contacts and relationships with cities of foreign countries. Twin towns or sister cities are supposed to promote personal and cultural contacts. Town twinning became rather popular in Europe after the Second World War because it enhanced mutual understanding. It is now supported by the European Union.62 In the United States Sister Cities International tries to strengthen partnerships on US communities with foreign communities. The organization calls itself “a nonprofit citizen diplomacy network”.63 Town twinning, however, brings first of all citizens together and is a feature of the civil society. It is neither shaping nor implementing foreign policy goals. Other cities pursue more demanding goals. The cities brought together by the Glocal Forum are devoted to peace building and development. The Forum argues that city diplomacy has to fill in since “traditional diplomacy based on relations between nation states has failed to be effective”.64 Cooperation between cities can certainly contribute to international understanding, to the solution of problems and particularly to the

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implementation of projects of development assistance. It remains, however, doubtful whether “globalization” contributes to shaping and implementing foreign policy. Disintermediation? There are, no doubt, many non-state actors on the world stage, such as citizens, multinational corporations, the media, and a huge variety of international non-governmental organizations (NGOs). Among them the international NGOs are particularly interesting since they have seized tasks that used to be performed by states. They fight hunger, poverty, drought, and the pollution of the environment. They promote education and health care. They try to advance peace. Citizens from different countries are quickly informed by the media and can easily communicate via the Internet. Since these efforts of the civil society are powered by a multitude of donors and the huge foundations, the movements have become effective. The efforts are basically private in nature. Though some of these NGOs fight for common interests beyond the state, a global society, a society committed to common concerns of mankind, is not in sight.65 Probably, foreign policy and diplomacy will have much to do with problems within states that are caused by multiethnic tensions.66 For example, Afghanistan, Iraq, and Pakistan are faced with such tensions. Representatives of international NGOs and diplomats cooperate, particularly on the multilateral level. Various attempts have been made to describe the relationship between state and non-state actors in the field of diplomacy. The relationship has been considered so close that it was called symbiotic or catalytic.67 The development has also been called disintermediation, meaning the removal of state actors as mediators.68 The question is, however, whether these interpretations reflect diplomatic practice. NGOs have their own agendas. They pursue their own policies and follow their own rules. They rely heavily on informal and interpersonal ties. They work as pressure groups. They do not necessarily cooperate with governments. There also exists an

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antagonism between some NGOs and governments as was repeatedly demonstrated by the partly violent protests against G8 meetings. When international organizations cooperate with a government or an IGO they may assist in making foreign policy and, more often, in implementing one. For example, 13 NGOs, among them the Red Cross, the International Crisis Group, and the American Bar Association, assisted governments and IGOs to implement the Dayton Peace Accords of 1995 on Bosnia.69 The degree of their involvement varies. In some cases the relationship may be close. Mostly, NGOs will support negotiations. They, however, have one disadvantage. They cannot fill in for a government when the jurisdiction of the state is indispensable to achieve final results. Even if NGOs have promoted an international agreement it has ultimately to be concluded by states. A case in point is the struggle to prohibit the production and use of anti-personnel mines. An NGO movement, the International Campaign to Ban Landmines, is credited with having crucially contributed to the success of these efforts.70 To realize the ban, however, a treaty, the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Antipersonnel Mines and on Their Destruction of September 18, 1997 had to be concluded among states.71 This result illustrates that states and their official agents who are in charge of foreign policy and diplomacy have the final say. Representatives of NGOs can be helpful in diplomacy, but that does not make them diplomats. The rules and practices for official agents have no implications for the transnational forces. Since the activities of the international non-governmental organizations are important various intergovernmental organizations have developed rules for the cooperation with them. In the United Nations system the Economic and Social Council (ECOSOC) is responsible for cooperation with NGOs (Article 71 of the UN Charter).72 The ECOSOC has granted different forms of a consultative status to more than 3000 NGOs.73 This status includes the right to designate persons to represent an NGO at the United Nations. The UN Secretariat’s Department for Economic and Social Affairs (DESA) supports these activities of the ECOSOC. More than 1600 non-profit

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NGOs are associated with the UN Secretariat’s Department of Public Information.74 Some NGOs have succeeded in establishing relations with the UN General Assembly. Many UN Specialized Agencies and organs also maintain relations with NGOs. The Organization for Economic Cooperation and Development (OECD) has consultative committees in which trade unions and commerce and industry are represented. Common guidelines have also been drafted for humanitarian activities.75 More rules, coordination mechanisms, operating procedures, ethics or rules of behavior and provisions on rights and duties, may be introduced in the future. New rules should be drafted in a way that no additional fragmentation is added to the present international disorder. Whether such efforts can be successful is, however, uncertain. From a Western perspective, the role of the state should be stressed because states have democratically elected governments and are committed to the common good.76 Sometimes private persons or organizations try to tackle problems that could not be solved between governments, a method called track-two diplomacy.77 The main idea behind these efforts is that private persons are not bound to instructions and thus have more leeway to negotiate.78 It is further assumed that private citizen thinks less along the lines of state interests, focusing instead on fundamental concepts of humanity. Examples are the various channels opened by private citizens from India and Pakistan to improve relations between the two countries, with a view to contributing to the resolution of the conflicts.79 Since the private talks are considered to pave the way for government-to-government talks, track-one talks, they can be regarded as a preliminary stage of diplomacy. Other important non-state actors are multinational corporations. They lobby foreign governments and international governmental organizations to promote their agendas. Their aim is profit. Thus, multinationals pursue private goals. Participation in the Global Compact obliges corporations to comply with the ten principles of human rights, labor, social and environmental standards but does not make them agencies for the promotion of the common good.80 MNCs may agree on an international standard, for

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example on a technical standard. However, only the intervention by governments makes it a de iure standard, that is a standard that can be enforced by law. There is no need to include the international activities of multinational corporations into diplomacy though their lobbying has similarities with the activities of diplomatic missions. In this context it is interesting to observe that MNCs, in spite of their often huge size and influence, are ready to accept government support when dealing in third countries. The photos of statesmen from two different countries looking over the shoulders of two chief executive officers of MNCs signing an agreement are well known. MNCs also turn to embassies for assistance. In order to assess their risks for an investment they are interested to learn the embassy’s opinion on the political stability of the host country.81 At least they used to ask this question as long as there was no commercial political risk insurance. For example, embassies support tenders for major business deals by negotiating with the host government. This happens in cases where the host government has an influence on the deal because the customer is the state or a state-run organization or when the host government is involved in the financing of the project. An MNC has to choose which country’s embassy it asks for support. For example it can ask the embassy of the country where it has its headquarters or it can ask the embassies of those countries where it operates. Interventions on behalf of Airbus Industries, for example, used to be made jointly by British, French, German, and Spanish diplomats since Airbus is producing in these four countries. When intervening on behalf of a corporation the embassy has to be aware of the limits of its role. The embassy has to insist that the agreement on details of the transaction is the business of the contracting partners. The embassy can only express its government’s general interest that the company from its own country is awarded the deal. An embassy promotes trade, but does not sell goods. Thus, businessmen and diplomats play and stress separate roles. The important role that the state continues to play with regard to financial policy became obvious in the fall of 2008. When many international financial institutions, banks, and insurance companies

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got bankrupt or faced illiquidity, governments came to their rescue. The task was difficult because of the lack of transparency and the extreme speed of the financial transactions and the multitude of players. Globalization of financial transactions resulted into a complexity that bordered on chaos. Policies were developed by governments and coordinated through intensive diplomacy on a high level resulting in huge bailout programs. Some programs included restrictions on the decision making of the recipient banks. Again, the state had the final say. It was its task to take care of the common good. The development strengthened the authority of the state just as the fight against terrorism had done before. Television is powerful since it can broadcast real-time pictures together with comments of important political events.82 Embassies have difficulties to compete with the speed of reporting by TV. However, diplomats can report their assessment via telephone and e-mail. Serious problems may be caused for policy makers because the public is disturbed by the TV reports and expects a quick reaction of its government. Races between television and embassies are rare. They are limited to cases of great tragedies or crises. Events such as the crackdown of the Chinese government on students on Tiananmen Square in the summer of 1989 or the coup in Moscow in August 1991 do not happen often. Television is also used on a permanent basis in the opposite direction. Governments try to influence political events via TV. Televised press conferences, statements, and speeches by political leaders have become routine. Sometimes, these remarks contain messages meant for one or several foreign governments. In such a case the embassy does not deliver the message but will have to do the follow-up. Conclusion Present trends of international relations have affected the functioning of the institution of diplomacy in different ways. Diplomacy has received an additional tool in the form of the Internet. In various cases of interdependence and dependence of states interference in the affairs of the host country is accepted. Rapidly increasing

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multilateral cooperation has created parliamentary diplomacy and a new type of diplomat, the international civil servant, who serves at headquarters or at external missions. Besides official agents many other actors are concerned with foreign relations. Some of the activities of sub-national units qualify as diplomacy. The activities of non-state actors are important, but are of a private nature. The pressures of immigration are felt at the doors of the consulates of industrialized countries and have tremendously increased their workload. Kidnapping cases put additional pressure on consulates. Though the forces of globalization have made borders permeable, the state and its diplomats are in demand if excesses are to be curbed. The fight against terrorism also brought along additional work for diplomacy. Taken together, the range and importance of diplomacy did not shrink but rather expanded. Diplomacy has undergone changes and made adaptations. The institution of diplomacy, however, has proved remarkably resistant. Metternich’s observation that diplomacy is “the day to day application of foreign policy” is still true.83 Diplomacy is here to stay.84 Diplomacy in its present configuration contributes to shaping the international community. It does so by a large network of communication that is used by the players to protect the interests of their states or international governmental organizations. Nevertheless, the question remains whether a common idea drives diplomacy.85 Bernard du Rosier, writing in 1436, stressed that the ambassador’s office was as useful for the state as for the whole world (“ambaxiatorum officium quantum rei publice et toti orbi sit utile”).86 His business was peace.87 This task was based on the conviction that the ambassador had the public office to represent Christendom.88 Today diplomats represent just states. Governments decide whether a diplomat tries to persuade a foreign government to enter a military alliance or to fight climate change. If the dualism between foreign policy and diplomacy is applied consistently it is obvious that the decision about war and peace is a foreign policy decision. Consequently, it precedes diplomacy. Diplomacy is only implementing the decision. The same is true for other values, such

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as human rights and democracy. Some states decide to promote these ideas in foreign states. Again, these are foreign policy decisions. In the minds of many diplomats the idea that their work transcends the representation of their states has survived.89 They feel, in the words of du Rosier, that “the office of an ambassador is always for good, never for discord or evil”.90 They have seldom to do with issues that are directly related to war and peace. Their daily work is focused on improving relations, balancing interests, on informing and explaining, and on resolving misunderstandings. In their hearts many diplomats are internationalists. The promotion of more cooperative relations within a basically chaotic system is for many present day diplomats an ideal as the maintenance of peace was for 15th century diplomats. How close they can get to their ideal depends on the policy of the government the diplomats work for. Ambassadors are no longer plenipotentiary.91 Diplomats receive their mandate neither from heaven nor from visions, but from their governments.

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Chapter 2

The Ministry of Foreign Affairs and the Foreign Service

A Great Variety In 1661 the French Foreign Ministry, founded 35 years before by Cardinal Richelieu, the great French statesman, had altogether five officials.1 Today’s foreign ministries are mostly impressive bureaucracies with hundreds and, in the case of larger countries, thousands of officials. They figure under different names. “Ministry of Foreign Affairs” is the most frequently used term. Other descriptions are, for example, Ministry of External Affairs (India), Ministry of External Relations (Brazil), Department of Foreign Affairs (Ireland), Ministry of Foreign Affairs and International Cooperation (Cambodia), Federal Foreign Office (Germany), Foreign and Commonwealth Office (United Kingdom), Department of State (United States of America).2 Whatever such a ministry is called it is the government’s lead agency for administering its foreign relations and is headed by a minister. Not only do the names of the governmental departments in charge of foreign relations differ. Their responsibilities, their influence, and strength within their bureaucratic environments vary from one country to another. Jurisdictions can be added or outsourced. Some foreign ministries, for example, those of Australia, Canada, and South Korea, are also in charge of foreign trade. Others, such as the foreign ministry of Belgium, are also responsible for development cooperation. Various South American foreign ministries such as those 31

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of Argentina and Bolivia underline their responsibility for external cultural policy. The French foreign ministry is now called “Ministry of Foreign and European Affairs” to stress its prerogative for European issues. When separate agencies for foreign policy issues are set up, for example for development assistance or disarmament, the scope of the foreign ministry’s responsibility shrinks.3 The constitutional and political situation of a country has an impact on the importance and influence of a foreign minister and the foreign ministry. In a presidential system, such as the one of the United States, the foreign minister (in the United States called Secretary of State) is appointed by the president and serves at the president’s pleasure. Therefore, his relationship with the president determines his influence and that of his ministry. Henry Kissinger is supposed to have been a powerful secretary of state because of his close association with President Nixon. In a parliamentary system the foreign minister is a member of Parliament and counts among the influential party leaders. Therefore, he has a constituency of his own and carries weight. When the government is formed by a coalition of various parties, the foreign minister may be the leader of one of the coalition parties. He may make use of the situation that the government needs him and his party. The personality of the foreign minister also is an important factor. A strong politician who also knows how to use the expertise of his staff may enhance his ministry’s position within the government. Former foreign minister Shimon of Israel is noted as an example.4 The range of a foreign ministry’s responsibilities differs from country to country and, even within a country, the position of the foreign ministry within the governmental network is often in flux. The Functions of a Foreign Ministry The ministry of foreign affairs is responsible to assist the minister in making foreign policy decisions, to coordinate the external activities of other ministries and agencies, to cooperate with its own missions abroad, to interact with the foreign diplomatic missions in

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the capital, and to win domestic support for the foreign policy of the day.5 When important foreign policy decisions are to be made, when, for example, membership in the United Nations or the European Union is to be applied for, the decisions is regularly preceded and accompanied by a public debate. In democratic countries the attitude of the political parties, particularly those that form the government, is crucial. In order to prepare the foreign minister for these discussions, the foreign ministry officials will draft a memorandum summing up the pros and cons of the issue and recommend a decision. The paper is drafted on the working level and forwarded to the higher levels in the ministry’s hierarchy.6 The higher level can make changes or ask for changes. Often a paper moves a number of times between the ministry’s officials until it is finally presented to the minister. Not only the vertical but also the horizontal lines of responsibility must be respected: All units that have a responsibility for the matter under discussion must consent to the paper. The minister can bypass units in the chain of command and ask an expert at a lower level for direct advice. The vertical and the horizontal interfaces are under attack. The members of the junior staff want to have larger responsibilities that allow them to bypass certain levels of the hierarchy. ICT facilitates these efforts since it gives the junior staff access to internal and external networks, e-mail, and databases. Foreign ministries, however, insist on the prerogatives of senior officials because they have extensive knowledge, a lot of experience and are familiar with the strategies involved.7 The horizontal lines of responsibilities often result in frictional losses. The establishment of ad hoc teams that comprise all those who have a jurisdiction in the case might avoid the difficulties created by traditional bureaucratic structures. A memorandum may explain various options if there is room for them. When Henry Kissinger was Secretary of State, he instructed the State Department staff to present options to him whenever possible. The work is easier for the staff when the minister has already indicated his point of view. When the minister has to deliver a speech, officials will draft the speech. The ministry will also take up

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issues on its own initiative and present them to the foreign minister. The ministry may suggest, for example, a new approach in its policy towards Africa or a new effort to promote human rights more aggressively in a number of countries or to try to reform a specific international organization. After the minister has approved the suggested policy, the ministry’s officials can make the subsequent decisions on their own responsibility. Indeed, most of the activities of a foreign ministry’s officials do not need the minister’s prior approval.8 The day-to-day business is managed by the various levels of the ministry. It needs some training on the job to learn which level of the ministry can make which type of decision. Particularly those decisions and activities that stay within the framework of an established policy or that are of a tactical character are left to the ministry’s staff. The decisions, for example, how to vote in an organ of an international organization or whether to conclude an agreement on the avoidance of double taxation or which country to approach in a disarmament matter can be made on a rather low level. Not all policy decisions are arrived at in the orderly way mentioned above. Foreign ministers are overburdened, obliged to attend a multitude of national and international meetings and to receive visitors, are under the pressures of time, often reacting to unforeseen events, forced to answer public demands, pursued by the media and permanently on the move. There is often just no time to follow normal procedures. The minister, who is perhaps at the airport of a foreign country when an urgent demand for a decision reaches him, can only consult with the advisers who accompany him. Oral advice by a few substitutes for a memorandum in writing by the bureaucracy. And to make things worse: If there is a crisis it is not always clear from the beginning which aims should be pursued. When the crisis develops, also the policy to deal with it develops. Since many state actors participate in foreign relations, the foreign ministry’s task is often reduced to coordinate the various activities.9 This is particularly true for democratic countries with their pluralistic societies.10 The diffusion of responsibilities for foreign affairs has often resulted in confusion. Therefore, it is the task

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of the foreign ministry to see to it that the many activities of all the other ministries and agencies with foreign states or organizations are based upon the country’s foreign policy and follow the same strategy. Coordination can be made difficult by conflicts between ministries regarding the political goals.11 The situation will be even aggravated by the all too common turf battles. In the United States, for example, conflicts between the President’s National Security Adviser team, the State Department, the Department of Defense and the Central Intelligence Agency (CIA) are notorious.12 It is easier for foreign ministries to fulfill their coordinating function if they have the necessary instruments at hand. Municipal law or government practice, for example, can expressly charge the foreign ministry with coordinating foreign policy activities.13 But even then it is often difficult to fulfill the task of coordinating government activities in the field of foreign policy. One has to resort to coordination committees. The coordination task is made easier when it is stipulated by law that negotiations with foreign official partners need the foreign ministry’s prior agreement and/or that an official from the foreign ministry chairs commissions, committees, and working groups that deal with foreign relations. Many of a foreign ministry’s activities are focused on the correspondence with its own missions abroad. An embassy is asked, for example, to find out whether a visit of the foreign minister in the host country is welcome, which topics may be discussed, and which program suggested. Or various embassies are instructed to inquire whether their host countries are willing to support a new initiative to strengthen the non-proliferation of weapons of mass destruction. Or an embassy is asked to intervene with the receiving government complaining about violations of intellectual property rights of pharmaceutical companies of the sending country. A consulate, for example, is told to issue a visa to a certain person. Or a mission to an international governmental organization is instructed to find out whether other key states are willing to support the candidature of an official of the sending state for membership in one of the organization’s committees.

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However, missions do not act and report upon instructions only. Most of their reporting is done on their own initiative. Missions abroad follow developments in their host countries closely and report about those developments that have an impact on bilateral relations. On political developments they report continuously, on the host country’s economic or cultural developments they might report periodically. The foreign ministry distributes these reports to those government agencies that have an interest in the subject. The foreign ministry is also the main counterpart for all foreign missions in the capital. To put it more precisely, it should be the main counterpart of foreign missions since Article 41, para. 2, of the Vienna Convention on Diplomatic Relations (CDR) stipulates that all official business with the receiving state “shall be conducted with or through the ministry for Foreign Affairs of the receiving state” if nothing else has been agreed upon. Embassies have a tendency to overlook this provision and correspond directly with the host country’s agency that is responsible for the matter under discussion, for example with the development agency, the ministry of economics, or the central bank. In these cases they should at least send a copy of their correspondence to the ministry of foreign affairs. Foreign ministries frequently remind diplomatic missions of the procedures contained in Article 41, para. 2. In August 1998, the Ministry of Foreign Affairs of Pakistan, for example, informed foreign missions that “it would like to once again request all foreign missions to desist from this practice as it causes operational difficulties and may lead to extraordinary delays in matters of considerable importance. All communications must, therefore, be addressed to the Ministry of Foreign Affairs. In cases of urgency, however, Missions may deal directly with the concerned organization but must invariably send a copy of their communications to this Ministry”.14 Sometimes, foreign ministries make use of the presence of foreign ambassadors by calling them in to discuss a bilateral issue. This discussion may be accompanied by a parallel intervention with the foreign ministry in the ambassador’s capital. The latter

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intervention is more useful since a decision can only be made at home. Through its protocol division the foreign ministry also looks after the diplomatic corps (corps diplomatique) resident in its capital. Foreign policies need domestic support. Efforts to gain support are the more necessary since foreign policy, unlike agricultural or energy policy, does not have well-established pressure groups. It is the task of the political leadership of a foreign ministry to promote the policies and enlist support for them. The foreign minister does so through talks, speeches, newspaper articles and television and radio interviews. In some countries, such as France, Germany, and the United Kingdom, he is assisted by junior ministers. The pressures of the media on the political leadership are enormous. Ministers spend much time satisfying the curiosity of the media. In this context a remark by one of their colleagues, the former Australian foreign minister Gareth Evans, is interesting. He argued “it is simply not wise for governments to make policy in response to a media-driven agenda”.15 In most countries it is the task of the political leadership to explain and defend foreign policy in Parliament. It is different in the United States. Officials of the State Department, down to the deputy assistant secretary, have to testify before the committees of Congress and do so frequently.16 The situation can be somewhat awkward since the official is defending a policy for which he is not responsible and which — in principle — he cannot change. Increasingly officials are engaged in explaining and advertising their governments’ foreign policies to a broader public audience at home. Foreign ministries have press and information divisions that hold regularly press conferences and publish leaflets and brochures. The Department of State, for example, has a bureau for Public Affairs that reports to the Under Secretary for Public Diplomacy and Public Affairs. Additionally, many foreign ministries have web sites that publish details about the ministry’s work, its policies, travel advice for the public, and news. This new instrument of public policy has resulted in a hitherto unknown transparency in the field of foreign policy.

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The Organization of a Foreign Ministry When a diplomat is transferred to a new post and takes up his functions in a foreign capital, he has to start from scratch and often faces many surprises. However, he would not have many difficulties in finding his way around the foreign ministry of the host country. When he wants to discuss a bilateral political issue he can turn to the appropriate regional bureau. If he represents an Asian country, for example, he will talk to the officials of the Asian bureau. In case he wants to discuss an issue of non-proliferation, he will turn to the functional bureau responsible for non-proliferation matters. He will also find other familiar units such as those responsible for economic questions, for legal and consular affairs, and for cultural matters. The foreign ministry’s protocol section might assist him to overcome a newcomer’s difficulties. In many instances there is one official at the top of the bureaucratic hierarchy and directly below the foreign minister. This highest official of a foreign ministry is called Deputy Secretary of State in the United States, Secretary-General in France, and Permanent Under-Secretary in the United Kingdom, to give some examples. Under this official there are a number of divisions (directorates-general). In the case of the United States there are six under secretaries of state.17 A number of bureaus and offices report to them. Reporting to the Under Secretary for Political Affairs are the regional bureaus and the bureaus for international organizations and for narcotics. Three different under secretaries are in charge of economic affairs, arms control, and global affairs. Besides the bureau for public affairs, those for education and culture and information programs report to the under secretary for public diplomacy. Finally one under secretary is heading the large administrative division that keeps the Department and the missions abroad running. The under secretary for management is also in charge of consular affairs. Legal questions are dealt with by a legal advisor. This official, as well

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as quite a number of other offices, report to the secretary, among other protocols, legislative affairs, intelligence and research, and counterterrorism. Only recently the assistant secretaries were placed under the direct authority of under secretaries. Other foreign ministries such as the French and the German follow a much stricter hierarchical order and keep the number of offices outside the normal chain of command rather small. The issues that a foreign ministry has to deal with change. The questions of Apartheid, Namibia, and the division of Germany that have kept foreign ministries in suspense for decades have disappeared from the agenda. New issues such as the fights against narcotic drugs and terrorism and access to new commercial shipping lanes through the Arctic Ocean require new answers. Old issues such as immigration and support in cases of disasters become more important. New international governmental organizations demand attention. New conflicts, such as those in Afghanistan and Iraq, need a closer look. The developing multipolar system demands consider repositioning. When the focus of a foreign ministry shifts, organizational changes follow, though regularly with some delay. The foreign ministries of European Union (EU) member states had to react to the increasing challenges of European integration and to the domestic conflicts of jurisdiction in EU matters. The German Foreign Office, for example, reacted by creating a division for European affairs and by maintaining the presidency of the regular meetings of the state secretaries in charge for European affairs. Massive dissent by a federal minister, however, is difficult to overcome since constitutionally every minister runs his ministry independently and on his own responsibility. In such a conflict a solution needs the intervention by the chancellery. The French foreign ministry also has a European cooperation directorate-general.18 The foreign ministry is responsible for European integration including institutional issues and

Counselor and Chief of Staff (S/COS)

Deputy Secretary of State D(S)

Executive Secretariat (S/ES) Executive Secretary

Under Secretary for Democracy and Global Affairs (G)

Under Secretary for Public Diplomacy and Public Affairs (R)

International Security and Nonproliferation (ISN) Assistant Secretary

Education and Cultural Affairs (ECA) Assistant Secretary

Administration (A) Assistant Secretary

Information Resource Management (IRM) Chief Information Officer

Democracy, Human Rights and Labor (DRL) Assistant Secretary

Under Secretary for Management (M)

African Affairs (AF) Assistant Secretary

South and Central Asian Affairs (SCA) Assistant Secretary

European and Eurasian Affairs (EUR) Assistant Secretary

Western Hemisphere Affairs (WHA) Assistant Secretary

Political-Military Affairs (PM) Assistant Secretary

International Information Programs (IIP) Coordinator

Consular Affairs (CA) Assistant Secretary

Medical Services (M/MED) Director

Oceans and Int’l Environmental and Scientific Affairs (OES) Assistant Secretary

East Asian and Pacific Affairs (EAP) Assistant Secretary

International Narcotics and Law Enforcement (INL) Assistant Secretary

Verification, Compliance and Implementation (VCI) Assistant Secretary

Public Affairs (PA) Assistant Secretary

Diplomatic Security and Foreign Missions (DS) Assistant Secretary

Overseas Buildings Operations (OBO) Director

Population, Refugees and Migration (PRM) Assistant Secretary

Near Eastern Affairs (NEA) Assistant Secretary

International Organizations (IO) Assistant Secretary

Foreign Service Institute (FSI) Director

Resource Management (RM) Chief Financial Officer

Economic, Energy & Business Affairs (EEB) Assistant Secretary

Human Resources (HR) Director General of the Foreign Service and Director of Human Resources

Intelligence and Research (INR) Assistant Secretary

Legislative Affairs (H) Assistant Secretary

Office of the Chief of Protocol (S/CPR) Ambassador

Office of Civil Rights (S/OCR) Director

Office for Counterterrorism (S/CT) Coordinator and Ambassador at Large

Office of U.S. Foreign Assistance (F) Director

Office of Global AIDS Coordinator (S/GAC) Ambassador at Large

Office of Global Womens Issues (S/GWI) Ambassador at Large

Office of Inspector General (OIG) Inspector General

Office of International Energy Coordinator (S/IEC) Coordinator

Office of Legal Adviser (L) Legal Adviser

Office of Policy Planning (S/P) Director

Office of Reconstruction and Stabilization (S/CRS) Coordinator

Office of War Crimes Issues (S/WCI) Ambassador at Large

Approved by S/ES May 2009

Source: Department of State, January 2008.

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United States Agency for International Development (USAID) Administrator

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Secretary of State (S)

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the common foreign and security policy (CFSP). Inter-ministerial coordination is in the hands of the Secretariat-General of European Affairs under the authority of the prime minister. The British Foreign and Commonwealth Office (FCO) also has an EU Command. Though the coordination of EU policy is managed by the European Secretariat of the Cabinet Office, the FCO succeeded in playing a dominant role in EU matters.19 The FCO handled EU issues efficiently and was quite relaxed about other departments solving the problems within their competence. As these examples demonstrate, foreign ministries of EU countries reacted rather similarly to the new tasks resulting from European integration. They adapted their organizational structures, remained in charge of political core issues such as common foreign and security policy and integration, and tried to strengthen their coordinating role. Foreign ministries were, however, only one coordinator among others. In other words, their role was more that of a mediator.20 The management style of foreign ministries has also come under attack. Fiscal pressures require managing with fewer resources. Public opinion demands even greater efficiency in spite of cost cutting. Therefore foreign ministries are dealing with management problems, in some cases so intensive that other duties suffer.21 Foreign ministries have introduced managerial improvements. The British FCO uses a “management by objectives” system. The general objectives of British foreign policy are cascaded down to commands and diplomatic missions and finally to individuals.22 The performance management framework of the foreign ministry of New Zealand starts with a list of the country’s strategic objectives matched with the financial means available, called the Statement of Intent.23 Based on this list operational plans are drawn up by individual units. These plans then form the basis for individual job descriptions and personal tasks. The performance of the officials is assessed on the background of these standards. The calls for reform, however, do not seem to stop. Reforms of foreign ministries have become a never-ending story.

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Foreign Service Personnel A government does not only need staff for its foreign ministry but also for its embassies, permanent missions to international governmental organizations, and consulates abroad. The legal status, tasks, working conditions, and career strategies for foreign affairs personnel differ from country to country. The regulations are determined by a country’s tradition, laws, and system of government. It is possible to use a two track system: Besides the foreign service officers, who work at home and abroad, there are civil servants who work at home only. This pattern is followed, for example, by the governments of the United Kingdom and the United States. The British Foreign and Commonwealth Office employs Diplomatic Service staff at home and overseas and Home Civil Service staff only in the United Kingdom. The State Department also makes a difference between Foreign Service personnel and Civil Service personnel.24 The Foreign Service Act of 1980 reduced the number of the categories for foreign service personnel to three: Foreign Service officers, Senior Foreign Service officers, and Foreign Service specialists.25 US Foreign Service personnel are obliged to serve mainly at embassies, missions, and consulates abroad. Foreign Service personnel may also be assigned to duty at home, but only for a period not exceeding eight years of continuous service. There is another striking feature of the American system: A Foreign Service officer can be assigned to non-foreign service positions in other federal, state, and local agencies or in private corporations. This flexibility can give foreign service personnel a wide range of experiences at home. If the foreign service officer is seconded to an agency involved in foreign policy he can contribute to the coordination process. The US foreign service follows a rank-in-person, not a rank-in-position system. That means that the employee’s rank is independent of the job the employee is holding. This system facilitates the work of the personnel division since foreign service officers can be assigned to positions, which are classified above, or below, their personal pay grades. However, it can be frustrating for the employee who has to

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accept either a position below his abilities or a more challenging position without the equivalent pay. At the beginning of their career, US Foreign Service officers have to choose one of five different career tracks: consular, economic, management, political, or public diplomacy affairs. This system that used to be called the cone system has the advantage of providing the employer with young experts. However, the higher the foreign service officer climbs the ladder of his career the less useful is his specialization. For its top jobs the American system has established the Senior Foreign Service. After having reached the highest midlevel rank, a foreign service officer may apply for the senior foreign service. If he is not promoted to that position within a definite period of time he has to retire. The same happens if he is not promoted from one grade to another within the senior system (up-or-out principle). Thus, the security of tenure for Senior Foreign Service officers is limited. Independent selection boards evaluate the performance of the members of the foreign service and rank-order them for promotion. Application for the American foreign service does not require a specific educational level or proficiency in foreign languages.26 The State Department considers foreign service officers in spite of the cone system as “generalists”. It calls the members of the support staff foreign service specialists. They perform jobs in the following categories: administration, construction engineering, information technology, international information and English language programs, medical and health, office management and security. The State Department’s civil service employees work either at headquarters in Washington or in other cities within the United States. They are involved in every area of the Department. Civil service employees can, however, serve at a US mission abroad via the “Foreign Service Hard-to-Fill” program. Some civil servants have used the opportunity to change their careers into that of a foreign service officer. The State Department has altogether 11,467 foreign service employees and 8,784 civil service employees, altogether 20,251 home based staff.27 7,813 employees of the foreign and civil service staff, that is to say 39% of the regular staff, are

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working abroad. As all other foreign ministries the State Department has locally hired staff, in the American terminology called Foreign Service Nationals, altogether 37,089 employees. Other governments have opted for different solutions. It is possible to include everybody working in a country’s foreign ministry and missions abroad into the foreign service. This is the solution chosen by the German government. The German Foreign Service Law of 1990, the result of many attempts for reform, established a unitary foreign service.28 In accordance with general civil service regulations, the foreign service knows four career levels. Requirements with regard to the educational level and foreign language skills for the various levels differ. The officials for the higher (executive), higher intermediate (administrative), and intermediate services are trained by the Federal Foreign Office. After having passed an examination they are appointed civil servants enjoying basically the same status as all the other federal civil servants. The members of the typing pools are salaried employees and many members of the ordinary service are workers. For them collective agreements are applicable. The regular staff comprises 6,550 members, 2,150 of them working at headquarters, and 4,400 working abroad.29 Thus 67% of the Foreign office’s regular staff is working abroad. The members of the regular staff are subject to rotation: They can be transferred between headquarters and missions and between missions. As was mentioned earlier, increasingly officials from other ministries are assigned to missions abroad. The ministry of defense, for example, sends military attachés abroad. These officials serve regularly just one term abroad and then return to their ministry. As long as they work in a mission they belong to the foreign service. Approximately 1,200 staff members are temporarily seconded to German missions abroad. Therefore, roughly 20% of the staff serving abroad do not belong to the regular foreign service. Besides the home based staff, 5,100 locally hired staff members work in German embassies, permanent missions, and consulates. They are either German or non-German nationals. These are the interpreters, translators, operators, workmen, and drivers and without them a mission could not fulfill its functions. Since the

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members of the locally hired staff live permanently abroad they do not participate in rotation. Foreign ministries insist that applicants for the foreign service declare their readiness to be posted to any post anywhere in the world. Change will be the only constant feature in the life of the applicant if he becomes a foreign service officer. But is rotation really necessary?30 Would it not be preferable that foreign service officers serve for many years at the same post making use of their contacts in and knowledge of the host country? Posts present very different living conditions. Many postings entail dangers for the health or do not have satisfactory facilities to treat diseases. At posts in troubled regions or with a high criminality rate, foreign service officers and their families are endangered. At many posts schooling for the children of diplomats is difficult. Therefore, care for the well-being of the staff demands distributing hardships and finding a balance between posts with different living conditions. Rotation is also useful since it provides the chance that foreign service officers enhance their experiences. It finally counteracts the danger that diplomats become too attached to their host country. Descriptions of a diplomat who has “gone native” make for good stories. Indeed, when diplomats live in a foreign country for a long time it may happen that assimilation becomes a danger.31 There are no fixed rules concerning a tour of duty abroad. The usual tour abroad for American Foreign Service personnel is approximately three years at regular posts and two years at hardship posts.32 Rotation will be the fate also of future foreign service officers. Exceptions confirm the rule. Anatoly Dobrynin, for example, served as Soviet Ambassador in Washington from 1962 to 1986.33 Foreign service officers work on policies. They assist the political leadership in making foreign policy decisions and implement them. Policies are often controversial. Civil servants give advice, politicians decide. The American system has an institution to deal with dissenting opinions, namely the “dissent channel”.34 When employees of the foreign service community who are US nationals have a dissenting or alternative view on substantive foreign policy matters, they can use this channel to voice their opinion. These

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messages are forwarded without clearance by superiors to the Policy Planning Staff in the State Department, which distributes them to the Department’s leadership and gives a substantive reply. Freedom from reprisal is guaranteed. The Dissent Channel has its drawbacks. A bureaucracy can only work properly and without confusion when officials keep within their jurisdiction. The regulations concerning the dissent channel also overlook the difference between policy making and diplomacy. It is the task of the political leadership to make foreign policy decisions. Once they are made, diplomats have to implement them. It is not probable that the political leadership will change a foreign policy decision to which many have contributed because of a dissenting opinion. These drawbacks may explain why the channel is not used much. According to a report in 2003, the Policy Planning Staff receives only eight to ten messages a year.35 The dissent channel may be not very effective, but it is a civilized way to deal with dissenting opinions. Foreign services are attractive for young people who want to serve their country and appreciate the challenges abroad. They will have no precise knowledge about their career chances. When officers advance in their services, however, an important question comes up: How good are the chances to become a consul general or an ambassador? In the British and German foreign service, for example, the chances are not too bad since the chiefs of mission are regularly career diplomats. Political appointments are rare.36 The situation is different in the United States. Political appointees fill quite a number of the posts of chiefs of mission (over the years roughly 30%).37 The president may appoint those who have contributed to his success during the election campaign or may prefer to send outstanding personalities as ambassadors abroad. Thus, the chances of career diplomats to become chiefs of mission are diminished. This development can be frustrating for career diplomats, particularly for those who have served as deputy chiefs of mission (DCMs). In that capacity they have served by definition as “alter ego” to their chiefs of mission, and therefore, are experienced in heading an embassy.38 The question of what makes a good diplomat has found much attention. Writing in 1716 the French diplomat François de

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Callières listed the following qualities as necessary for a good diplomat: “a spirit of attention; an application, which is not capable of being distracted with pleasures and frivolous amusements; a right judgment, which may be able to comprehend things clearly as they are and pursue the main point by the shortest and most natural ways, without insisting upon niceties, and vain subtleties, which usually discourage those we treat with; a quick penetration to be able to discover the secrets of men’s hearts, and to take advantage of the least motion of their countenances, and of the other effects of their passions, which escape sometimes even men of the greatest dissimulation; a spirit fertile in expedients, for overcoming the difficulties which arise in adjusting the interests wherewith one is charged; a readiness of mind to be able to give a proper answer to matters that are unforeseen, and by judicious answers to avoid a slippery step; an evenness of temper, and a sedate and quiet disposition, always ready to hear patiently those with whom he treats; a free access, courteous, civil and agreeable; an easy and engaging carriage, which contributes much to gain the affections of those with whom we have to do; whereas a grave and cold air and a severe rugged manner, commonly disgusts, and causes aversion”.39 Nearly three hundred years later the world for diplomats is larger. Therefore, one would like to add adaptability and the ability to take stress to the necessary qualities. To communicate in a successful way with foreigners and to draw the right conclusions for the policies of one’s own country remain, however, the most important talents for a diplomat.40

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Chapter 3

The Functions of Resident Diplomats

Resident Diplomats The resident ambassador to a state is the backbone of bilateral diplomacy. He differs from an envoy who has come for a special mission and returns home after having completed his business. The resident ambassador remains at his post in the foreign capital to represent the interests of his state on a continuous basis; he does so until he is recalled. It was the Italian city-states that, in the 15th century, invented the resident ambassador.1 The states of the Renaissance were free from interventions by the emperor or the pope. As secular states they were able to manage their own foreign policy which was based on power. The five major states, Florence, Milan, Naples, Venice, and the papacy, competed with each other for increased power and influence. In order to survive it was necessary to find out which steps the other governments were envisaging or taking. Therefore, it was practical to have a permanent observer in the other capitals who could keep his government informed on what was going on in the host country. Thus, resident diplomats were “the chief means by which Italian statecraft observed and continually readjusted the unstable equilibrium of power within the peninsula”, as Garett Mattingly has observed.2 In other words, the resident ambassador tried to substitute diplomacy for warfare. The system then spread to the north, and European diplomacy was further developed by France.3 Cardinal Richelieu did not only 49

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concentrate the responsibility for the conduct of foreign policies in the ministry of foreign affairs, but also introduced more professionalism to diplomatic practice and gave ambassadors precise instructions for their missions. Diplomacy was aimed at establishing confidence. Richelieu, therefore, stressed that negotiations among states had to be a continuous activity. In his “Political Testament”, written in 1638, he insisted that it was absolutely necessary to negotiate incessantly, openly or secretly, everywhere (“negocier sans cesse, ouvertement ou secretement, en tous lieux ”).4 In the 19th and 20th centuries, Western diplomacy expanded. The many states created by decolonization insisted to demonstrate their newly won independence by sending and accepting ambassadors and followed the European practices. Today, a network of bilateral embassies covers the world. Not only did a practice of diplomacy develop, but also so did a system of legal rule — rules of international law concerning bilateral diplomatic relations. This diplomatic law was codified and further developed by the Vienna Convention on Diplomatic Relations of 1961 (CDR). Unlike earlier treaties, the CDR listed diplomatic functions. The functions of diplomatic missions are performed by the members of the mission, the diplomats. According to Article 3 of the CDR diplomatic missions have the following functions: — — — —

to represent the sending state; to protect its interests and those of its nationals; to negotiate with the government of the receiving state; to report to the sending state on developments in the receiving state; — to promote friendly relations including the development of economic, cultural, and scientific relations. This list is not a final enumeration, as Article 3 (“inter alia”) admits. Additional functions of diplomatic missions have developed. They are not performed by every embassy, only by those which, with regard to the situation in the host country, have reasons

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to do so. The most important of these additional functions are as follows: — — — —

to to to to

foster military relations; promote public relations; coordinate development assistance policies; promote democracy and human rights.

Consular functions can also be performed by a diplomatic mission, as Article 3, para. 2, of the CDR confirms. These functions are defined by Article 5 of the Vienna Convention on Consular Relations of 1965 (CCR). They will be discussed separately.5 Representation Representing the sending State in the receiving State means acting as the central official agency for communication in the host country.6 Thus, representation is a generic term. This view is in accordance with the intentions of the International Law Commission. When the Commission added the function of representing the state into the text of the CDR, it described this function as an overall characteristic of the activities of a diplomatic mission.7 Since the time of Cardinal Richelieu until the beginning of the Second World War, embassies used to be the main channels of official contact between governments. This situation continued to exist even after the Second World War in the relations between NATO countries and Warsaw Pact member states. Since direct contacts between officials from both sides working in the capitals were rare, the central position of the embassy was guaranteed. As has already been shown, the responsibilities for foreign affairs have been outsourced meanwhile. Many ministries and agencies participate in negotiating with foreign countries. This is particularly true for countries that enjoy close and good relations, as, for example, the member states of the European Union do. The competition of their own countries’ agencies does not only affect foreign ministries but also embassies. Their coordinating role has become more prominent.

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In former periods of the evolution of diplomacy, representation played a more prominent role. Article 2 of the Regulations of the Congress of Vienna in 1815 stipulated that only the first class of diplomat — the ambassadors and papal legates and nuncios — had representative character (“le caractère representatif ”).8 This meant that they alone represented the person of their sovereign. They thus had the privilege to negotiate with the sovereign of the host country.9 Therefore, they were awarded diplomatic privileges.10 Article 3, para. 1, lit. a, of the CDR, however, provides and the preamble confirms that diplomatic missions and thus diplomats represent states. Therefore, there is no longer a rule of international law attributing to the ambassador the right to represent his head of state. This does not exclude the possibility that ambassadors can be made their heads’ of state representatives by municipal law. Indeed, this has been done in many instances.11 The ambassador can try to bring this special function into play if the need arises, for example if he feels he is not treated with the necessary respect by the host country. The internal regulation, however, does not provide him with any privileges from the receiving state. Whenever a diplomat is performing official functions he or she stands for his state. The ambassador is particularly visible since he is the mission’s only member that is accredited with the host government. In the view of the French foreign ministry, the ambassador represents the whole of France to the whole of the receiving country.12 The representative function also becomes obvious when an ambassador does not negotiate with the host government, but only attends ceremonies, such as the presentation of credentials, the inauguration of a new head of state, the celebration of the host country’s national day, the opening of parliament, the passing-out parade of the military academy, state funerals, state visits, state banquets, and the special ceremonies for vessels of the ambassador’s country’s navy paying an official visit to a port of the host country. The presence of the ambassador at such an occasion is of a symbolic character.13 A Nigerian ambassador, Olujimi Jolaoso, commented his presentation of credentials as Nigerian ambassador to the German president in 1966 in the following way: “As a representative of some

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80 million people, here was I, the embodiment of the spirit and soul of Nigeria, the country with the largest black population in the world, the one with the greatest potentials and the greatest promise in Black Africa. I was keenly aware of the massive responsibility that was now mine. If I spoke anywhere in Germany it was Nigeria as a sovereign nation that spoke”.14 Jorge Edwards, a well-known Chilean writer and the first chargé d’affaires en pied of the Allende government in Havana, considered himself “the representative of the Chilean Revolution”. He further said: “I bore this title not only on ceremonial occasions, but at all hours of the day and night. In a small city, and one in which, to cap it all, I had the status of a symbol, there could be no dividing line between my official and private lives. I was a symbol every hour of the day and night”.15 Protection The ambassador and his staff have the task of “protecting in the receiving state the interests of the sending State”. As has already been mentioned, some countries formulate their national interests in a general way and make them public. A chief of mission does not need to leaf through the catalogue of his country’s national interests, though it may serve him as a point of reference. He will already have been acquainted with his state’s — changing — interests from his training and experience at preceding posts. Many foreign ministries give their chiefs of mission the chance to become systematically prepared for their new post before they leave for it. Meetings are arranged with people in charge of relations with the receiving country in the foreign ministry, in other ministries, in additional government agencies, in trade organizations, in cultural associations, in private business, and in academic institutions. After the ambassador has taken up his new post, detailed instructions will tell him and his staff how to handle current issues. Together with the information and suggestions that the mission sends home, policies will evolve, defining in detail the sending country’s interests in the host country. The more the ambassador and his staff are familiar with the way policy decisions are made at home, the easier it is for them to make their impact felt.

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Most ambassadors today no longer receive instructions in writing for the new post before they set out. In 1716, François de Callières gave the following definition of diplomatic instructions: “The instructions are in writing which contains the will and pleasure of the Prince, or State, in the principle points which may occur in the negotiation wherewith the minister is charged”.16 He also mentioned that the instructions are frequently altered “by daily dispatches which the minister receives”.17 This condition is even more evident today, since the communication between embassy and foreign office via telegram, telephone, and e-mail has reached heretofore unknown speeds. This ease of communicating is cited as a reason for abandoning the good old custom of giving the ambassador general instructions in writing before he leaves. One has to admit that it had become too laborious for the foreign ministry personnel to draft instructions not too general, on the one hand, and not too detailed so that they were not too quickly outdated, on the other hand. Many ambassadors, however, regret not having general guidelines at hand.18 Recognizing this desire, some foreign ministries began issuing guidelines for heads of mission. A report by the predecessor on his activities and contacts will help to lessen the new ambassador’s learning curve. Protecting the sending country’s interests involves making the policies of the sending country known and understood in the receiving country. When concrete business is at stake, the diplomatic mission will make interventions. In order to fulfill these tasks efficiently, the members of the mission need contacts. Most frequently, they will talk to the members of the ministry of foreign affairs lobbying for their government’s policy. They will also talk to officials in other ministries. With the ministry of economics they will discuss trade, with the ministry of national planning they will discuss development aid, with the ministry of interior they will discuss visa questions, with the ministry of education they will discuss cultural cooperation. They will try to establish contacts with all those actors having influence on foreign policy. If the receiving country’s legislature is a major foreign policy actor — as is, for example, the US Congress — diplomats will contact its members. They will also

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explain their country’s foreign policy objectives to representatives of political parties, trade unions, churches, universities, and a wide array of civil society organizations. All forms of public relations support the mission’s effort to foster its country’s foreign policies. Negotiation Negotiating means trying to reach an understanding by discussion. In the words of de Callières, “The principal function therefore of the minister is to labor to form a strict union between his own Prince and the person to whom he is sent; or to cultivate it, in case it be already formed, and to augment it by his care and good offices”.19 Sometimes the “union” takes on the form of an agreement, that is, a treaty in writing. Therefore, a more narrow definition of negotiating is to communicate with others in the preparation of a treaty. Working toward an understanding between the sending and the receiving state is more than protecting the interests of the sending state. This type of work of a diplomatic mission makes it indispensable to take the interests of the host country into consideration as well. Both countries can cooperate only as far as their interests overlap. Further, the overlap is in no way static. Conditions and, consequently, policies change. It is, therefore, the task of the diplomatic mission to redefine the overlapping part of the interests again and again. The mission might even use negotiations to create common interests. The process of finding common ground contains dangers. For example, the embassy might overestimate its possibilities of persuading the host government to agree to the suggestions put forward by the sending government. Or the embassy might overestimate the host government’s willingness to cooperate, since on the basis of its local knowledge it has become too strong an advocate of the host government. There also seems to be a lingering suspicion in foreign ministries that their own agent has been infected by “localitis”, that he may be too committed to the other side. Such cases, however, are exceptions. One well-known case in this context is that of the British ambassador to Berlin from 1937 to 1939, Sir Nevile Henderson.20

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Henderson preferred a softer approach to the German government than he was instructed to take. He frequently demonstrated against his instructions. Further, he had an inclination to accept German views, since he underestimated the danger of German policy for British national interests. He misread Germany’s intentions and thought that once the German minorities had been absorbed, Germany would become a satiated power. He did not believe that Germany was planning for war, and he made the German government believe that the British government was not determined to intervene on behalf of Czechoslovakia and France. Thus, the ambassador undermined the intentions of his government. A diplomatic mission is a part of its country’s bureaucracy. The principle that a country’s employees have to stick to their jurisdiction is also valid for the members of the foreign service. Transgressions are strongly disliked by foreign ministries. The US ambassador to the United Nations, Zalmay Khalilzad, got into trouble with the State Department in the summer of 2008 when it became known that he had unauthorized contacts with the leader of the Pakistan People’s Party.21 An ambassador must always be aware of the fact that while he lives in two worlds, he is working only for his country and that all his efforts are meaningful only if he is heard at home. If the home government feels that the ambassador is no longer working for his country, it will recall him. This happened to the Yugoslav ambassador in Washington, Milan St. Protic, in August 2001 because his public statements conflicted with his government’s policy.22 In July 2007, the Greek government recalled its ambassador to Macedonia because she said in an interview that Greece has to face the new reality that its neighbor has been recognized under its constitutional name — Macedonia — by more than half of the members of the United Nations.23 This statement was not in agreement with the Greek government’s position in the name dispute. National interests often clash. How does an embassy perform its responsibility to intervene in such a situation? An example may illustrate this question. In May 1998, India and Pakistan exploded nuclear devices, demonstrating that they had each individually

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acquired nuclear weapons capability. This condition ran counter to the nonproliferation policy pursued by the vast majority of states. Among those who voiced their concerns were the governments of the seven large industrial states plus Russia, the G8, which were meeting at that time in Birmingham, England. On June 12, 1998 the foreign ministers of the G8 issued a communiqué that condemned the nuclear tests by both countries. They recommended that India and Pakistan stop all further nuclear tests, join the Comprehensive Nuclear Test Ban Treaty, refrain from weaponization and any further production of fissile material for nuclear weapons, and confirm their policies not to export technology that could contribute to weapons of mass destruction. The ministers of the G8 backed their recommendations with a threat. They agreed not to oppose loans to meet basic human needs, but announced “to work for a postponement in consideration of other loans in the World Bank and other international financial institutions to India and Pakistan”.24 It was the task of the ambassadors of the G8 countries in New Delhi and Islamabad to explain to the Indian and Pakistani governments why their home governments condemned the nuclear tests. They had no chance of understating the situation because the clash of interests was serious. Such a situation makes it imperative to voice the message clearly and without delay. Diplomatic missions continue to be involved in the negotiations of bilateral treaties. If the subject is, however, of a technical character, delegations of experts and other professionals come from home to the receiving country to discuss and work on the treaties. Often, the experts who are sent have negotiated treaties of the same kind with other countries or have developed a prototype that they would like to see adopted. Some examples of bilateral treaty topics for which technical negotiations take place are as follows: avoidance of double taxation, extradition, readmission of nationals who are illegally resident in the other country, cultural cooperation, financial or technical assistance, and the use of airspace for air-craft. The embassy is in charge of preparations for the negotiations. It has to sound out whether, and to what extent, an agreement can be reached, and it has to reach an understanding on the subject and

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the date of the negotiation and on the composition of the delegations. The embassy will see to it that one of its diplomats is made a member of the delegation. If the subject is an important one, the ambassador will insist on becoming a member of the delegation. During the negotiations, the embassy will contribute its knowledge of the situation and personalities in the host country towards the success of the endeavor. It will also be in charge of secretarial support. Finally, the embassy will check that an agreement which was initialed at the end of the negotiations is signed and put into force in the host country. This task sometimes makes lobbying necessary. Thus, the embassy has a supporting role in bilateral negotiations.25 The embassy has another important function as well: to make sure that the envisaged agreement fits into the sending country’s foreign policy. Therefore, the embassy has to be informed about the precise contents of the envisaged treaty and the motives for the negotiations. It must be also given the chance to comment on the details of the talks and be a part of the internal discussions. Thus, the embassy has to make use of its coordinating function. Observation One might be tempted to consider the media as a competitor with diplomatic missions as far as collecting and reporting information are concerned. The press, press agencies, radio, and TV stations of larger countries are everywhere and report with extreme speed. Television provides real-time information. Monitoring systems, like those of the British Broadcasting Cooperation (BBC) and the American Foreign Broadcast Service (FBIS), which has become part of the Open Source Center, make valuable additional information available. They monitor and translate the broadcasts of foreign media and put them at the disposal of their clients, first of all their governments. All these sources, however, do not make an embassy report unnecessary. When something dramatic happens, CNN or other mass media are usually there. It happens that TV reports and pictures and public response to these reports compel governments to react to the event. This phenomenon is sometimes called the

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CNN effect.26 What the media do not do is continuous reporting. Even the New York Times, the Economist, and Le Monde, specialists in reporting and analyzing international events, can give only summaries of events in specific countries now and then. Diplomatic missions, however, report continuously and assess political events with a view to their importance for the sending country’s foreign policy. The World Wide Web is an additional rich source of information. A diplomat and his colleagues at home in the foreign ministry in charge of relations to a specific country can read that country’s daily news on the web. In many countries, newspapers and news agencies publish on the web. Much other information on the host country can be collected from the web as well. In some countries, the quantity of the available information is overwhelming. One might be tempted, therefore, to consider the web as a competitor of a diplomat’s work to ascertain information. The diplomat is, however, needed to assess the relevance of the information with regard to his country’s and the host county’s foreign policy. Foreign ministries have a tendency to ask their embassies the impossible as far as reporting is concerned. On the one hand, they complain that too many reports are sent in, and on the other hand they give one instruction after another for required periodic reporting. Reports that have to be submitted annually or biannually generally concern political developments, human rights, economy and trade, energy policies, visa questions, cultural policy, and the public relations work of the mission. An even larger part of the embassy’s reports is made up by those, which are requested ad hoc by the foreign ministry. A bulk of additional reporting, finally, is the result of decisions made by the embassy to determine which events, conclusions, assessments, or suggestions are worth being brought to the attention of the foreign ministry. Domestic politics of a host country will figure prominently in the reports of an embassy if they are important for the sending state. Axel Herbst, German ambassador to France from 1976 to 1983, foresaw at an early stage that François Mitterand, and not, as everybody thought, Giscard d’Estaing, would win the 1981 presidential elections and reported

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accordingly. German Foreign Minister Hans-Dietrich Genscher was so impressed by that report that he often told the story of it and mentioned it in his memoirs.27 Forecasting political developments of a foreign country is risky though, as one can be mistaken. For example, the US envoy to Russia, Francis, assessed the revolutionary situation in his host country on October 4, 1917 as follows: “My sympathy with Russia deep, sincere and my conviction strong that the country will survive ordeal and be safe for democracy if we and other Allies are patient and helpful”.28 Less than five weeks later, the Bolshevik revolution had succeeded in Russia’s capital. When Huari Boumedienne toppled Algerian President Ben Bella on June 19, 1965, Zeng Tao, Chinese Ambassador to Algeria, was taken by surprise.29 He had thought that Boumedienne would not risk jeopardizing the Afro-Asian Conference scheduled in Algiers on June 29, 1965. Even after the coup d’état, Zeng Tao insisted that what had happened was an internal power struggle that would not affect the forthcoming conference. This conference was to be attended by Chinese Prime Minister Zhou Enlai who was already in Cairo on his way to Algeria. Upon Ambassador Zeng’s suggestion, China recognized the new revolutionary government quickly, thus spreading suspicion among African states and contributing to the postponement of the conference. It is hardly a diplomatic sin not to predict a coup d’état, since governmental overthrows are not announced in advance in the official gazette. There are, however, sometimes signs indicating that something might happen. Zeng’s neighbor Yang Qiliang, Chinese ambassador to Morocco, had predicted that the overthrow of Ben Bella might happen just before the Afro-Asian conference, but nobody at home had listened to him. The US ambassador to South Vietnam, Graham A. Martin, reported on October 1, 1974 the following: “Propaganda by those American puppets of Hanoi [in the American press and among American politicians] has almost totally obscured the fact that enormous changes have taken place here in the past year: It is now my objective conclusion that South Vietnam’s forces have matured

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into an effective military machine, increasingly capable of handling, successfully, the entire range of the capabilities possessed by North Vietnamese and Vietcong forces arrayed against it. …” Ambassador Martin continued, “Washington is where the trouble is — not Vietnam. I do not minimize the difficulties, but I regard the achievement of the goal as a perfectly feasible one — assuming, as I do, that the new team in Washington has the guts and the same capacity for plain hard work as currently is in evidence in Saigon”.30 Seven months later, Saigon fell. In order to report events as precisely as possible, the members of an embassy have to make use of their contacts and pool their information. The head of mission has to take care that reporting is consistent. He himself can make crucial contributions to reporting because only he has access to high officials from the level of the state secretaries upwards. Only he has the chance to be received by the chief executive or the head of state. Hermann Eilts, US ambassador to Egypt in the late 1970s, talked to Egyptian President Anwar Sadat almost daily.31 Nobody in his embassy, no journalist or visiting US official, could have matched that. Many ambassadors feel that reporting has been their major contribution to the embassy’s work. Reports continue to be “the raw material of foreign policy”.32 Paragraph 1, lit. d, of Article 3 of the Vienna Convention on Diplomatic Relations obliges diplomatic missions to ascertain events in the receiving state only by “all lawful means”. It is chiefly espionage that is considered unlawful and, therefore, not permitted by the Convention as a way of collecting information.33 If the receiving state discovers that a member of a foreign embassy is engaged in espionage, it has the possibility to declare the diplomat persona non grata which leads to his or her recall (Article 9, para. 1). Promoting Economic and Commercial Relations To promote friendly relations between the sending and the receiving state is an aim pursued by the diplomatic mission. It is made a mission’s function by Article 3, para. 1, lit e, of the CDR. The same paragraph enumerates areas where cooperation is particularly

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desirable: economy, culture, and science. The Declaration on Principles of International Law of October 24, 1970 by the UN General Assembly requests states expressly to cooperate in this range of activities, adding the social field and technology to it.34 Economic cooperation in a narrower sense means coordination of economic policies. Therefore, embassies have to observe the economic development in the host country and indicate possibilities to reach agreement for cooperation. Embassies may suggest, for example, that the sending and receiving state conclude a treaty to avoid double taxation or fight together for free trade. These are issues that relate to policymaking. As has already been demonstrated, the activities of diplomats in the economic field often concern issues that are within the sole jurisdiction of the partner. This interference in the internal affairs, however, is accepted as a result of mutual interdependence. Both sides are interested in the exchange. Meanwhile, promoting commercial ties by supporting trade and investment has become a major function of embassies. When, as a result of industrialization, international trade expanded in the past two centuries, missions abroad became more and more involved in assisting their businessmen and bankers. This task was originally considered as belonging to the consulates, but foreign ministries also found it useful to employ their diplomatic missions in it.35 When after the Second World War economic exchanges accelerated and trade relations assumed global proportions, promoting trade became one of the prime responsibilities of diplomatic missions. This is particularly true for countries that depend considerably on their exports, that is, countries with a considerable contribution of export to GNP. Internal regulations in these countries insist that diplomatic missions, and the heads of mission themselves, make trade promotion a priority. The activities of diplomatic and consular missions that support business are called commercial diplomacy.36 Commercial diplomacy comprises information and partner search, support in dealings with foreign partners, making use of contacts to the government, investment promotion, assistance in promoting trade fairs and tourism and support in trade disputes. Different countries tackle commercial diplomacy in different ways. The United States and Germany, for example, two of

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the world’s largest exporters, have different practices in commercial diplomacy. In diplomatic missions of the United States, officials from the Department of Commerce are mainly responsible for commercial diplomacy. These officials take a pro-active, entrepreneurial, and consultancy-like approach. The US government, however, promotes only trade and not inward investment. German diplomats focus on using their contacts to the host governments to support German business. Trade and investment are additionally promoted by many Chambers of Industry and Commerce abroad, the German Office for Foreign Trade and by “Invest in Germany”, the inward investment promotion agency.37 As long as an embassy deals with the host government in order to improve the general conditions for business activities between both countries — such as concluding an investment agreement — the mission exercises sovereign powers. Commercial business, however, follows different rules. Embassies, for example, support tenders for major business deals by negotiating with the host government. This happens in cases where the host government has an influence on the deal because the customer is a state, or a state-run organization or when the host government is involved in the financing of the project — for example, when airplanes, a power plant, a steel mill, or a high speed train system are at stake. What an embassy does in these cases is render service to private companies that could otherwise be provided by private agencies. As was mentioned previously, the embassy, however, has to be aware of the limits of its role when it makes an intervention with the receiving government. It should make clear that the agreement on the details of the transaction is the business of the contracting partners. An embassy can express only its government’s general interest that the company from its own country is awarded the deal. Any impression that the government itself guarantees the economic and financial standing of the applicant must be avoided. Promoting Cultural Relations The development of cultural relations is mentioned as a function of diplomatic missions by Article 3, para. 1, of the CDR. This is a field

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where the policies of countries differ. Many countries attach great importance to promoting cultural ties. Canada, for example, calls its public diplomacy, comprising cultural, educational, and media relations, the “third” pillar of its foreign policy.38 Germany used to characterize its cultural policy as one of the basic pillars of its foreign policy.39 Smaller countries try to support cultural exchanges with the limited resources available for the purpose. Some countries leave the translation of parts of their cultural policy into practice to institutions outside and independent of embassies. For example, the United Kingdom has the British Council, France the Alliance Française, Germany the Goethe Institutes, Italy many cultural institutes, and India its Cultural Centers. The US government that relies particularly on educational and cultural exchanges is supported by 50 Fulbright Commissions and Foundations abroad.40 Countries would be happy if they could afford to present their cultural credentials worldwide. Since this is too costly, countries end up focusing their cultural diplomacy on cultural capitals. As one such capital, New York is the stage of many cultural initiatives and plays host to many cultural centers sponsored by foreign countries. In the spring of 2002, there were 19 cultural centers located in Manhattan that were sponsored by foreign governments (Czech Republic, Germany, France, Italy, Greece, Austria, Venezuela, Hungary, Taiwan, Spain, Mexico Romania, Poland, Switzerland and the five Scandinavian countries Denmark, Finland, Iceland, Norway, and Sweden).41 In a joint effort, 30 embassies presented their countries’ culture on June 29, 2002 in Berlin, another cultural capital. A festival passport and shuttle busses facilitated access for the public.42 Since 1982 India has organized from time to time “Festivals of India” abroad, featuring cultural events at various places of the host country.43 Many countries rely on bilateral friendship associations in the host country. Overall management of cultural relations, however, remains in the hands of foreign ministries and embassies, but to varying degrees. The efforts of cultural institutions and organizations abroad have been dwarfed by the transmissions of the large international television companies. There is no match for the TV

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channels of the BBC and CNN, which reach a global audience. Both do not foster culture exchanges, but they export British and American views on political developments and British and American lifestyles. In addition, they contribute to the spread of the English language. The World Wide Web supports this trend as well. Other countries, such as Japan with the NHK and Germany with Deutsche Welle, are trying to follow suit, but they can bridge the language gap with a global audience only if they decide to broadcast at least partly in foreign languages. However, if they do so, much of the desired effect, the projection of the own culture abroad, will be lost. Whatever embassies are doing to promote cultural exchanges, the objective they have in mind is to contribute positively to the forging of ties between nations and to develop friendly relations. To develop friendly relations is, in any case, the long-term goal of any embassy’s public relations work. Public Relations The CDR does not list public relation activities as diplomatic functions. The list of Article 3 is, however, not final, and additional functions have become customary. Press and public relation activities form an integral part of the work of embassies. They are aiming at influencing public opinion in the host country. They do so by explaining the sending country’s policies and reducing prejudices. Public relations (PR) work of diplomatic missions continues to use the traditional tools. Embassies try to influence public opinion via the media and direct contacts with citizens of the host country. The PR work has been greatly supplemented by digital diplomacy. Many diplomatic missions have their own web sites and use them to disseminate information. Additional tools, such as blogging, online discussions, podcasting, and videoconferencing, can be used by diplomatic missions. The virtual presence of the mission is also an official one. Therefore, clear guidelines for the use of the new media must be developed.44

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The possibilities offered by modern information and communication technology seem to make public diplomacy unlimited. Nevertheless, the question how the digital age has affected the dissemination of information by diplomatic missions should be considered with some caution. If public diplomacy ought to be effective the language or the languages of the targeted country must be used. Public diplomacy in the Republic of Korea, for example, is only useful if it is done in Korean. It is, however, difficult for missions to recruit enough staff suited for public diplomacy work. There are other practical limits for public diplomacy. Only about 22% of the world population, concentrated in industrialized and newly industrialized countries, are connected to the web and can be reached via the web.45 Thus, there cannot be a truly global conversation at this time.46 The village might be global, but it is not universal. The enthusiasm for public diplomacy seems to result from an OECD view of the world. The extent to which the efforts to explain a country’s foreign policy are successful is unlikely to be great. Political news travel fast and may create prejudices before public diplomacy can try to correct the negative impression. Furthermore, images of countries, “once created remain stable”.47 This condition has to do with the way information is received: People have a tendency to select information that is in agreement with the image they already have.48 Thus, prejudices may live on for decades. The tremendous effort of the United States to win over the Muslim countries in the Middle East by public diplomacy may serve as an example how difficult it is to win a hostile public over.49 According to the 2007 Pew Global Attitudes Report the image of the United State “remains abysmal in most countries in the Middle East and Asia”.50 A good show cannot substitute for good policy. Far more effective than public diplomacy is a clear, unambiguous, and consistent foreign policy that takes well-founded interests of the partners into consideration and thus has credibility. Military Relations Since the beginning of the 19th century, states have attached military representatives to the staff of their embassies.51 The custom

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became common in the last third of the 19th century. Before the First World War, the United States and Russia had the largest numbers of military attachés assigned to their diplomatic missions abroad. The CDR recognizes the practice of appointing military officers as permanent members of embassies in Article 7, sentence 2. It stipulates that the receiving state may require the names of military attachés to be submitted beforehand for its approval. This implies the right to reject a proposal. Not all countries insist that the names of military attachés be submitted beforehand for their approval, however. The United Kingdom, for example, does not make use of this possibility.52 Military (defense) attachés fulfill similar functions as diplomats: They collect information, assess, and report it. They may also enter into negotiations with the host government on military deals, such as the purchase and sale of arms or the arrangement of military training. The restriction of Article 3, para. 1, lit. d to rely on “lawful means” for information gathering also applies to military attachés. They have, however, a reputation of spying. Accusations of defense attachés for spying reached their peak during the Cold War when many attachés were declared persona non grata and had to leave their posts.53 The accusations continue to be levied, though the number of cases that have become known is smaller than before. In July 1999, the Russian government declared an assistant military attaché of the US embassy in Moscow persona non grata because of spying.54 In August 2001, Honduras requested that two military attachés of the Salvadoran embassy leave Tegucigalpa because of spying.55 In February 2006, Venezuela expelled the naval attaché of the United States for spying.56 In May 2008, two military attachés of the US embassy in Moscow were expelled; they had made an uninvited visit to an aviation factory in Siberia.57 The military attaché comes from a different background than the diplomat. He is trained for war. War is, as Carl von Clausewitz has said, “an act of violence intended to compel our opponent to fulfill our will”.58 Diplomats do not use force; they employ peaceful means. The different training backgrounds of diplomats and military officers have sometimes led to different evaluations of the same

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facts. The rift between diplomats and military attachés is easily emphasized because the attaché belongs to an establishment that is powerful at home and concerned with its independence. Competition in the reporting between the political wing and the military wing of an embassy can be harmful. The naval attachés of the German embassy in London, for example, contributed, through their misleading discussions with British government officials and their reporting, to the inability of Germany and Britain to reach a naval accord before 1914.59 Other services, such as the American, Austrian, British, and French ones, were also occasionally troubled by conflicts between the ambassador and the service attaché in the period before the First World War.60 The development of a potentially dangerous rift between military attachés and diplomats can be avoided only if the ambassador’s authority over the defense attachés is firmly established — in theory and in practice. The most important feature of such an arrangement is the political control over the defense attaché’s correspondence. This control is assured if the defense attaché has to conduct his correspondence through the chief of mission. It is even better if the chief of mission is authorized to add his comments. In case the ambassador and his military attaché have different views, it is advisable to solve the conflict before the report leaves the embassy. Otherwise, the conflict moves to the headquarters back home. Development Assistance Fighting poverty is an internal affair of the state suffering from poverty. It is the most important task of the government of a poor country. The deprivation that people suffer is marked not only by low per capita income, but also by low life expectancy at birth, and by a low level of education. A human development index based on these factors developed by the United Nations Development Programme (UNDP) shows that 32 of 177 countries have low human development and 88 countries rank as having a medium level development.61 These countries’ level of development contrasts

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with that of the remaining 57 countries which include the industrialized countries. After the Second World War, it became an accepted task of international politics to reduce the North–South gap. Rich countries began to assist poorer countries. Development assistance came into being. The industrialized countries consider it in their interest to provide aid to poor countries. During the Cold War donor countries preferred giving aid to their strategic allies. Developing countries became the battlefield between East and West. But more important than short-term political interests was the idea that the gap between the South and the North was a threat to international stability. The pressure of South-to-North migration made the dangers perfectly clear. If countries are assisted in developing their people, then the hope is that the people will prefer to stay home and contribute to their country’s development. Thus, development assistance is expected to indirectly contribute to peace. At the same time, industrialized countries pursue more concrete aims in the developing world. They hope to build up markets for their goods, with benefits for employment at home. A statement issued by the US State Department once declared that “by helping other countries to develop, we develop ourselves”.62 After many failures, development aid has shifted its focus to those countries, which enjoy good governance. Development assistance can be successful only on the basis of close cooperation between the agencies of the donor and the recipient country. Development aid is provided mainly as financial or technical assistance.63 Financial cooperation means providing low-interest loans or nonrepayable grants. It aims at improving a developing country’s use of its production potential and is, therefore, used, for example, to build roads, dams, and factories, to improve the supply of electricity and water, to introduce a sewage system, or to expand the telecommunications system. Technical assistance is aiming at enhancing the capacity of persons and organizations by teaching them skills. Experts paid by the donor country are sent to developing countries. They bring along equipment needed for the projects. Experts teach their counterparts, for example, how to set up and run a dairy, how to manage a forest, how to organize a rural

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hospital, or how to introduce vocational training. Since a large part of development aid is granted on a bilateral basis many embassies are involved in this endeavor. How much an embassy of a donor country is involved in development assistance programs depends on the way the administration and distribution of development assistance is organized. Donor countries have chosen different ways and change their systems frequently. Norway, for example, puts great emphasis on development cooperation as part of its foreign policy. Therefore, the foreign ministry is responsible for development cooperation. The Norwegian Agency for Development Cooperation (Norad) is a directorate under the ministry.64 Norwegian embassies are overseeing their country’s development cooperation with the host country.65 In other words, ongoing contacts with governments of developing countries are the responsibility of the diplomatic mission. In Germany, a ministry for economic cooperation and development is in charge of defining and monitoring government aid.66 It leaves the implementations of its policies to various institutions, particularly to the German Agency for Technical Cooperation (GTZ), the Kreditanstalt fuer Wiederaufbau (KfW), and the German Investment and Development Agency (DEG). German embassies in developing countries, however, are involved in coordinating, supporting, and overseeing development assistance and have sections in charge of such issues. The United States Agency for International Development (USAID) is an independent federal government institution with headquarters in Washington and field offices abroad. The relationship to the State Department has been fluctuating. A reform in 2006 tried to build a stronger link between the Department and the agency. The position of the director of foreign assistance was created within the State Department who is at the same time USAID administrator and in charge of all foreign assistance activities.67 Abroad the main USAID office in a country is part of the embassy and headed by a mission director.68 The British Overseas Development Administration (ODA) used to be a semiindependent agency and was headed by a minister of state from the Foreign and Commonwealth Office. In 1997, ODA was replaced by the Department for International Development (DFID), which is

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headed by a secretary of state with cabinet rank. It has offices in many developing countries; in other countries it works through staff based in British diplomatic missions.69 Embassies of developing countries in donor countries are also dealing with development assistance. It is their aim to promote continued economic cooperation with the donor country.70 Diplomatic missions of developing countries also try to attract investment and improve trade. When diplomatic missions discuss development aid with agencies of the receiving country, it is unavoidable that internal affairs of the host country are at the center of discussions. The discussions deal with the host country’s agricultural, health, education, and economic policies, as well as infrastructure problems. Donor countries have increasingly tended to attach conditions to their aid in order to gain some assurances for its effectiveness, a practice long followed by the World Bank and the International Monetary Fund (IMF). Quite often, these conditions aim at introducing policy reforms in the developing country. In 1994, for example, the group of Pakistan’s donor countries, the Pakistan Consortium, asked the Pakistani government to reduce its defense budget.71 As was already demonstrated, development assistance implies far-reaching interference into the internal affairs of the developing country, which has no choice, but to accept interference if it does not want to be deleted from the list of recipients of the donor country. Embassies are also involved in the management of humanitarian assistance. While development assistance is aimed at giving help for self-help, humanitarian assistance is thought to give quick relief in a crisis. Some countries, such as the Congo, Somalia, Sudan, and Chad, have received humanitarian assistance for many years since the lives of many people are threatened. Both Myanmar struck by a horrible cyclone and China hit by an earthquake in the spring of 2008 needed disaster assistance. Governments have organized their humanitarian assistance differently. In the United States the development wing, USAID, is responsible to distribute humanitarian assistance to non-profit partners and international governmental organizations like the World Food Program and UNICEF. German development assistance uses preferably the ICRC, UNHCR, and

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non-governmental organizations to direct its humanitarian assistance. Embassies facilitate, coordinate, and check the work of these organizations. Aiding Democracy and Upholding Human Rights Democratic countries try to promote democracy since they feel that such an effort contributes to international stability. They involve also their diplomatic missions in these efforts. Thus, democracy aid has become important. Various programs for democracy aid have been developed including election monitoring, aid to political parties, assistance to state institutions, promotion of local government, training for lawyers and journalists, and support for trade unions.72 The contributions to democracy promotion by embassies are mostly modest. Embassies can attempt to promote democracy through lobbying.73 The main function of embassies, however, is a coordinating one.74 Embassies give advice to the various organizations of their countries that want to take up projects in the host country. They make suggestions on where to direct assistance, recommending support for only those groups of the civil society which are oriented towards promoting the public good and not solely their own interests. They see to it that all of these activities remain within the framework of their own country’s policies. Occasionally, embassies directly take part in democracy promotion efforts, for example, when they dispatch members of their staff to electionmonitoring groups. Democracy promotion in a country that is hostile to the democratic form of government is a classical case of interference in the domestic affairs. Embassies must be careful not to get unnecessarily entangled in efforts to change the form of government in the host country. Otherwise clashes with the host government are unavoidable. If a diplomat goes so far as to promote a regime change in the host country he is guilty of a severe violation of the prohibition of interference. Western countries also try to uphold human rights abroad. They feel that violations of human rights may have cross-border

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effects. They also have to take into account the often vigorous and negative reaction of public opinion in their countries, such as the outrage regarding the crackdown of 1989 in Tiananmen Square in Beijing.75 An embassy avoids friction with the host government as long as it reports only internally on human rights problems in the host country. Western governments request that their diplomatic missions provide periodic reports about the human rights situation in countries with a poor record. Embassies will monitor, for example, the following situations: political murders; disappearances; torture and inhumane treatment; arbitrary detention; denial of fair trail; arbitrary interference in private life; lack of respect for civil and political liberties; limited freedom of movement within the country; foreign travel; emigration and repatriation; violation of the rights of women; child labor. When an embassy reports only to its foreign ministry, an internal dossier is created. But when the government at home uses the information collected by the embassy as a basis for public statements, tensions with the accused government may occur. Various countries publish human rights reports.76 Foreign governments are not happy when they are described as violating human rights. Sometimes embassies denounce human rights violations in the host country. Occasionally, embassies are instructed to make interventions in human right affairs. When Western countries actively promote human rights in countries where there is a need for it, the clash with the principle of a state’s independence is obvious. It is interference indeed, because the embassy is attempting to protect citizens of the host country against their own government. As Abba Eban has explained, the promotion of universal human rights incites the kind of intervention that the respect for sovereignty “sternly forbids”.77

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Chapter 4

Interfering and Unwelcome Diplomats

Introduction Diplomats have to respect limits. Article 41, para. 1, sentence 2, of the CDR stipulates that the members of the mission “have a duty not to interfere in the internal affairs” of the receiving state. The Vienna Convention on Consular Relations (CCR) stipulates exactly the same limits for the work of a consul (Article 55, para. 1, sentence 2). As was already shown, interference is accepted in various situations, particularly when interdependence or a donor-recipient relationship links two countries. When a diplomat, however, tries to influence the policies of the host country he risks being accused of interference in internal affairs. The risks are particularly high when he tries to promote democracy and human rights in a foreign country. He even can be declared persona non grata with the consequence that he has to leave the country. In the past, the reason for being declared persona non grata always referred to political interference.1 At present this is no longer the case. A practice has developed to expel diplomats for other reasons than interference. Such a practice is justified since Article 9, para. 1, of the CDR and Article 23, para. 1, of the CCR do not make a receiving state’s decision dependent on any condition but give states a free hand. The prohibition of interference and the right to declare a diplomat persona non grata are based on different concepts. The prohibition of interference is a reflex of the principle of sovereignty 75

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that gives every state the right to choose its own path. The right to declare a diplomat persona non grata has to do with the way communication between states is organized. It is up to the receiving state to decide with which foreign diplomat it wants to communicate. Both rules deserve a closer look since they have an impact on the way diplomats perform their tasks. The Prohibition of Interference by Diplomats Sovereignty was invented as a legal tool against intervention.2 Originally, sovereignty was a concept supposed to fight anarchy inside a country. Since the French revolution that created the nation state, sovereignty was also used as a tool against interventions by other states. The French Constitution of 1793 expressed this new idea as follows: “It (the French people) does not interfere into the affairs of other nations; it does not tolerate that other nations interfere into its affairs”.3 Sovereignty became the building block for the international order. Since the sovereign’s power was considered to be above the law, legibus soluta potestas, to wage war was considered the pinnacle of sovereignty.4 War continued to be considered a “lawful cause of action of a sovereign state”.5 When a war was declared, both sides were released from observing the principle of non-intervention and could try to become the master of the other side. Only the rules for the conduct of war were to be observed. The UN Charter (Article 2, para. 4) finally banned wars of aggression. According to the Charter the use of force is only permitted in self-defense (Article 51) or on the basis of a decision of the Security Council (Chapter VII). The concept was now consistent.6 It centered on the duty of each state to respect the personality of other states, their territorial integrity, and political independence.7 The interpretation of sovereignty had shifted its stress to the independence of a state.8 This concept has its consequences for diplomacy. That a state is independent means that it must be free from interference in matters of its own jurisdiction.9 The Friendly Relations Declaration interprets non-interference in the following way: “No State or

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group of States has the right to intervene, directly or indirectly, for any reason whatsoever in the internal or external affairs of any other State. Consequently, armed intervention and all other forms of interference or attempted threats against the personality of the State or against its political, economic and cultural elements, are in violation of international law”.10 Since the diplomat is the agent of the sending country it is his duty not to interfere in the affairs of the host country. The wording of Article 41, para. 1, of the CDR and Article 55 para. 1, sentence 2, of the CCR has two particularities: Noninterference in the external affairs of the state is not mentioned and non-interference is determined a personal duty of diplomats. That the reference to non-intervention in foreign affairs was dropped during the discussions of the CDR is understandable, yet surprising. It was dropped because it is the task of a diplomat to influence the foreign policy of the receiving country.11 To include this prohibition, as the Montevideo Convention had done, would have given the receiving state too easy a pretext to refuse discussions on subjects it considers sensitive and to declare diplomats unwanted.12 Decisions on foreign policy, however, belong to the exclusive responsibilities of a state and thus fall under its own jurisdiction. It is, therefore, a diplomat’s obligation to respect the receiving country’s exclusive competence for foreign policy decisions. In other words, intervention in the external affairs of other states is also prohibited.13 Non-interference is an obligation for the diplomat because he is the representative of his state. Because he is acting in this capacity, the fact that Article 41, para. 1, makes non-interference the personal duty of the diplomat is of no relevance. It does not help to differentiate between personal activities and activities based on instructions of the sending state and to consider only the former as falling under the prohibition of Article 41, para. 1.14 As a private person with personal activities, the diplomat cannot meddle in the receiving state’s internal or external affairs. It is only the diplomat’s official function as the representative of his state that makes any interfering actions he takes a violation of the limits of diplomatic intercourse.

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The contrary opinion also overlooks that a diplomat acts within the limits of his country’s policies but most of the time without specific instructions. Article 41, para. 1, of the CDR and Article 55, para. 1, of the CDR do not authorize a diplomat to disregard an instruction by his government to interfere in the affairs of the receiving state.15 If a diplomat does not agree with an instruction he can voice his objections and ask the foreign ministry to change it. In case his government insists on the implementation of the instruction, he has no choice but to carry it out. Matters of policy are decided at home. Diplomats cannot have it their own way. As representatives of a state, a diplomat has to follow the instructions of his government. The principle of non-interference by diplomats sounds like a clear and practical rule. But it is not. A first damper is put on the concept of non-interference by the very nature of diplomacy. Diplomacy means reaching out to other countries and their representatives. It is the task of diplomats to prevent misunderstandings, to resolve differences, to defuse tensions, to repair rifts, and to reconcile interests. Diplomacy presupposes that the partner’s interests are recognized and respected. Dealing, particularly negotiating with another state, means taking the partner’s interests into account and, thus, may mean getting entangled with the partner’s policy. Therefore, diplomacy cannot always avoid interference. In many instances, interference is the diplomat’s business. It depends on the circumstances whether or not his entanglement is regarded as permissible. Influencing the Policies of the Host Country In order to foster their country’s foreign policies, diplomats try to use their country’s influence in the host country. In doing so they are applying soft power. Diplomats go too far if they try to participate directly in the host country’s policies. An often quoted case is that of Lord Sackville, British minister to the United States, who in 1888 gave advice in writing to a US citizen on how to vote in the upcoming election. Lord Sackville was sent home by the

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US government.16 When foreign diplomats try to influence domestic policies that have an impact on the sending country, receiving countries react differently. Sometimes a government only threatens to expel the diplomats, who, in its view, get entangled in internal affairs. In October 2000 Burma’s military government warned American and British diplomats against meddling in Burma’s internal affairs and suggested they could be expelled.17 Both embassies supported Aung San Suu Kyi and her opposition National League for Democracy. In October 2005 the Zimbabwean government warned the US ambassador against meddling in the country’s internal affairs. The American ambassador had criticized the economic policies and corruption in Zimbabwe.18 Traveling from post to post, the diplomat will notice that different countries have different views, as to which of his activities they call interference. Whether he is called to order or not depends on the issues under discussion and on the quality of relations between the sending and the receiving country. Some countries are very sensitive to interference in their affairs, others do not mind much. The strict adherence of the ASEAN countries to the concept of non-interference has only recently been questioned.19 Democratic countries are less sensitive. Allan Gotlieb, Canadian ambassador to Washington in the 1980s, recounts how he tried to influence US legislation on acid rain without being criticized by the US administration.20 Among the member states of the European Union (EU) discussing domestic policies is more the rule than the exception since the EU has developed common policies for many sectors. Within the EU “the other’s business has increasingly become everybody’s business”.21 Therefore, interference by discussing domestic policies of member states does not cause difficulties. In some countries it is risky for a diplomat to contact opposition leaders in the host country. The government of Singapore expelled a US diplomat in May 1988, accusing him of trying to cultivate potential opposition politicians.22 The US ambassador to Nigeria was harassed in September 1997 when the Nigerian police broke up a farewell party given for him by democratic activists in Lagos.23 Even rather innocent activities are sometimes frowned upon.

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In March 1997, the government of Belarus first detained a US diplomat and then asked him to leave; the diplomat was apparently observing a street demonstration in Minsk.24 In December 2000, Sudan expelled a US diplomat after he was found at a meeting with opposition leaders.25 Belarus declared a Polish diplomat persona non grata in May 2005 because of his contacts with the Union of Poles in Belarus.26 On July 11, 2006, Kyrgyzstan expelled two US diplomats accusing them of inappropriate contacts with leaders of Kyrgyz non-governmental organizations. The US administration reacted by expelling two Kyrgyz diplomats from Washington.27 In September 2006, the Solomon Islands declared the Australian High Commissioner persona non grata because he had been talking too much to the leaders of the opposition.28 In August 2007, the Sudanese government declared the Canadian chargé d’affaires and the envoy of the European Commission personae non gratae because they have had contacts with opposition leaders.29 The envoy of the European Commission was later allowed to finish his term in Sudan. Sometimes, a strong statement by a diplomat is sufficient for a host country to send him home. A prominent victim of a strong statement was George F. Kennan, US ambassador in Moscow. In 1952, he was declared persona non grata after he had compared living in Moscow to his experiences as internee in Nazi Germany.30 On December 15, 2000, a Pakistani diplomat in Bangladesh was declared persona non grata and escorted by the police to the airport after he had made comments about Bangladesh’s “blood-stained” independence.31 When a consul supports a compatriot in difficulties or distress, when he, for example, takes care of a detained national, tensions with the receiving country’s authorities may arise. International law, however, recognizes the consul’s right to protect his nationals (Article 5, lit. a, of the CCR). When a consul performs administrative and legal functions, when he, for example, issues passports or visas, he also works within an accepted pattern of rules and regulations. These norms together with international practice protect him from being expelled. He, however, risks to be called to order when he ventures into politics. At the beginning of 1990, Greece

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expelled the Turkish consul general in Komotini because he had called Greek Muslims “fellow countrymen”.32 Turkey reacted by expelling the Greek consul general in Istanbul. In February 1997, Turkey declared the Iranian consuls in Istanbul and Erzurum personae non gratae.33 The consul in Istanbul had spoken out against secularism; the consul in Erzurum had criticized comments made by a Turkish general. Often governments, who are displeased with the performance of a foreign diplomat, let the sending country know their dissatisfaction. They hope that the sending country will recall its diplomat making it unnecessary to declare him persona non grata. The Chilean chargé d’affaires en pied, Jorge Edwards, was not to the liking of the Cuban government. Edwards, though sympathetic to the revolutionary cause in Cuba, had reported critically about the political and economic difficulties in his host country and had relations with dissident writers. Edwards was not officially declared persona non grata, but his government transferred him to the Chilean embassy in Paris. Jorge Edwards, a well-known writer and in 1999 the recipient of the Spanish Cervantes price for literature, has recounted his experience in Cuba in a book with the title Persona non grata.34 Thus, the persona non grata has entered literature. Interference in external affairs does not cause much trouble. The representative of the sending country is regularly justified in discussing foreign policy questions with the host country since he deals either with issues of his country’s foreign policy or with global issues that have an impact on every country. Even when the clash of interest between both countries is serious the host country will not bring up its big guns. When the ambassadors of the G8 intervened in 1998 with the governments of India and Pakistan condemning the nuclear tests, neither India nor Pakistan reacted by complaining about interference in their affairs. Aiding Democracy It is an old idea that democratic countries are less inclined to wage war against each other. In the words of Immanuel Kant, “If ... the

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consent of the citizenry is required in order to determine whether or nor there will be war, it is natural that they consider all its calamities before committing themselves to so risky a game”.35 To actively promote democracy is, however, a new endeavor that was started by democratic countries only after the Second World War. For diplomatic missions democracy promotion can be risky since the interference in internal affairs is just too obvious. In order to prevent direct clashes Western countries charged private organizations that are independent in their decision making but financed by governments with the task of promoting democracy in foreign countries. The German political foundations (Stiftungen) were the pioneers of this development. In 1983, the US government followed this example by founding the National Endowment for Democracy (NED). The British Westminster Foundation for Democracy was established in 1992. Also many other Western non-governmental organizations (NGOs) attempt to support democracy abroad. The disguise is generally of little help for governments since it is common knowledge that many of the NGOs that are engaged in promoting democracy are government funded. However, it is the representative of those agencies charged with democracy promotion abroad, who risks being expelled because of the interference in the domestic affairs of the host country. This happened to the representatives of the Peace Corps and of the American Labor Federation AFL-CIO in Moscow in 2003.36 Occasionally, the involvement of an embassy in democracy promotion is significant. Harry Barnes, US ambassador to Chile from 1985 to 1988, is credited with having contributed to the downfall of the military dictator Augusto Pinochet and the rise of democracy in his host country.37 After his arrival in Chile, he contacted leading opposition figures. He demonstrated his government’s support of the democratic movement, for example, by attending the funeral for a young man murdered by Pinochet’s soldiers. He did not mind that he was rebuked by Pinochet since his own government supported him. The ambassador helped persuade democratic forces in the country to make use of the plebiscite in October 1988, which led to Pinochet’s ousting.

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If the promotion of democracy in a specific country is a massive effort that involves many agencies from the sending state, it might be recommendable that the foreign ministry undertakes the coordination. The German efforts to foster democracy in Serbia that were started in the summer of 1999 can serve as an example.38 The strategy involved various elements. A dialogue with the Serbian opposition was aiming at bringing the heterogeneous forces together. Free media were to be supported. Cooperation and twinning arrangements between many German and independent Serbian towns were encouraged. Democratic NGOs in Serbia were assisted. These efforts contributed to the downfall of the Milosevic government in the fall of 2000. The promotion of democracy in foreign countries is a selective effort. If other considerations are more important, for example, those of trade or security, the promotion of democracy promotion becomes insignificant. Jeane Kirkpatrick, later to become President Reagan’s Ambassador to the United Nations, suggested cooperating with dictators as long as they served American interests.39 The war on terrorism has forced Western countries to cooperate with authoritarian regimes in the Middle East and Asia.40 This selectivity, together with the lack of an overall strategy for the promotion of democratic transition, affects the credibility of the whole effort. Promotion of Human Rights Diplomats of Western countries try to promote human rights in countries where there is a need for it. They interfere in the host country’s affairs since they attempt to protect citizens of the host country against their own government. Efforts were undertaken to accommodate legally the principle of independence with human right values. Political independence is linked to the human rights value of citizens’ participation in governance.41 If a system denies its citizens basic political rights, it is argued, then this should no longer be considered an internal affair only. International practice, however, does not confirm such a new rule. The incumbent government that infringes upon human rights uses the concept of

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non-interference to ward off foreign efforts toward changing authoritarian structures. The more general statement of the European Community that the “protection of human rights and fundamental freedoms can in no way be considered an interference in a state’s internal affairs” is not a legal argument.42 Non-interference in a strict sense is a static principle. It works for the status quo. It keeps the Saddam Husseins of this world in power. Therefore, it is a favorite argument of authoritarian rulers. World politics, however, are dynamic. New ideas come up and new developments happen and may favor interventions. Some countries consider human rights and democracy universal and, therefore, interventions in their name justified. As a result of these trends non-interference has worn thin, though a “normative shift” has not yet occurred.43 In many cases the host government, approached by an embassy because of a violation of human rights, will label the embassy’s representation as interference in domestic affairs. The diplomat who promotes human rights has only limited chances of prevailing over a disapproving government. It is not helpful to enter into an argument with the other side of whether and why human rights are universal.44 The embassy can argue that under the auspices of the United Nations, a network of international conventions and other instruments for the protection of human rights has been established that has partly created international law, thus divesting the representation of its interventionist character.45 It is up to the host government whether to accept this explanation or not. Efforts to support human rights are not necessarily in vain. The host government may want to avoid straining its relations with the intervening government. One spectacular case of this phenomenon occurred when many governments tried to save the life of the South Korean dissident Kim Dae Jung, who had been sentenced to capital punishment by a court martial on September 11, 1980. In the end, it was the US government that saved his life. As we know from then US Ambassador to Seoul William H. Gleysteen, Jr., the US embassy in South Korea undertook many complicated maneuvers and held many difficult discussions with South Korean government

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officials to prepare the groundwork for a compromise.46 The incoming Reagan administration struck a deal: President Chun Doo Hwan commuted the death sentence to life imprisonment and was rewarded with an invitation to be President Reagan’s first official guest in Washington at the end of January 1981.47 Often the results of interventions in human rights affairs are modest. In the 1970s the US Embassy in Pretoria considered it a progress when it succeeded in having multiracial parties.48 The political section of the US embassy in Islamabad considered its efforts to reduce trafficking in persons and child labor as a success.49 In 1998, the political officer of the US embassy in Yangon could prevent violence against democracy activists at a specific event as long as he was physically present at the demonstration.50 Sometimes the results are important. When David D. Newsom arrived as US ambassador in Indonesia in 1974, approximately 35,000 people who had been arrested as Communists after the upheaval in 1965 were still detained.51 Without having any specific instructions Ambassador Newsom tried to rid US– Indonesian relations from this burden. He established contacts with influential Indonesians who would listen to his complaints. He arranged visits of Indonesian officials to the United States where they would discuss relations between the two states. Ambassador Newsom encouraged openness on conditions in the detention facilities. He used public speeches to refer to human rights activities in the United States. When the Indonesian government started to release the detainees in 1975, his diplomatic activities had been a factor. The promotion of human rights also suffers from the selectivity of governments as to which issues they decide to pursue and which issues they choose to let go. Idealistic efforts often collide with the demands of Realpolitik. The record of President Carter who tried hard to realize the goal of improving the human rights situation in foreign countries is a mixed one at best. He felt compelled once and again to give priority to different US interests over addressing human rights violations.52 His cooperation with Shah Reza Pahlewi may serve as an example. The Carter administration continued to support this brutal ruler of Iran because his country supplied oil to Israel and had not participated in the oil boycott in 1973.

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Organized Interference On the multilateral level the promotion of human rights follows a given pattern. The main human rights treaties have committees of independent experts, called treaty bodies, which monitor the implementation of the treaties. One of the seven treaty bodies is the Human Rights Committee in charge of monitoring compliance with the International Covenant on Civil and Political Rights of 1966.53 Parties to the Covenant have to submit reports on the measures that they have adopted to implement the rights granted by the Covenant. According to Article 40 of the Covenant, the 18-member Committee studies such a report and enters into a structured dialogue with the party.54 A country report task force identifies the main questions. The committee then examines the report in the presence of representatives of the reporting state. The representatives are given the opportunity to introduce the country report and to reply to the questions raised by the task force. Discussions follow. Finally, the Committee adopts “concluding observations”. These are included in its annual report that is submitted via the ECOSOC to the UN General Assembly. For example, the report of the Human Rights Committee on its sessions from October 2006 to July 2007 contained the Committee’s observations concerning the report of the Republic of Korea. Besides positive aspects the observations dealt with areas of concern. The Committee, for instance, criticized the lack of progress in the prosecution and punishment of those responsible for domestic violence and recommended measures to combat such incidences.55 The monitoring system has its weaknesses. States that do not comply with their reporting obligation cannot be forced to do so. Even when states comply, the Committee can only make recommendations in case it finds deficiencies. Nevertheless, it is a significant progress that many states are willing to discuss internal decisions and policies with the members of the treaty bodies. It is important to note that the diplomats are not those who interfere in the internal affairs of a country. The diplomats explain and defend the policies of their governments regarding human rights in their discussions with the members of the treaty bodies,

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which belong to the UN system. These independent experts who constitute these bodies are those who interfere. They do so on the basis of the human rights treaties and on behalf of the UN system. It can be called organized interference. Various human rights treaties allow states to complain about violations by other states. In this case the diplomats of the complaining states are those who interfere. However, the procedures for inter-state complains have never been used.56 The Human Rights Council can deal with any human rights issue. Its confidential complaint procedure allows individuals and organizations to bring gross and reliably attested human rights violations to the Council’s attention.57 International Cooperation The cooperation between states in the field of the economy and trade is regularly dominated by common interests of both sides. Therefore, it is generally accepted that in the course of bilateral discussions of economic problems both sides may also refer to economic aspects concerning the partner. Interdependence makes interference acceptable. It is rare that a diplomat is accused of having interfered in the economic affairs of the host country and thus violated the prohibition of Article 41, para. 1, of the CDR. It happens, however. When the government of Lithuania expelled Russian embassy officials in February 2004, it accused them among other things of having attempted to influence state property privatization processes.58 Interference resulting from development assistance activities is regularly accepted by the receiving state since there is no other choice. Hidden tensions, however, exist and sometimes they come to light. On March 15, 2005, Prime Minister Khaleda Zia of Bangladesh complained in a speech in Parliament about the interference from bilateral donors and aid agencies, saying, “that Bangladesh will not be run by any dictates or orders of any foreign force”.59 Her finance minister M. Saifur Rahman asked the donors to leave the country if they could not adjust to the socio-economic policy of the country. “Donors must understand”, he said, “that the development

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programs of our country are owned by us, not by them and we will decide how we will implement them”.60 The Bangladeshi officials were angry because the EU ambassadors had expressed their concern over the present political situation in the country, particularly over political violence. Representatives from the United Nations Development Program (UNDP), the development aid organization of the UN, had recommended political and economic reforms. Though the embassies of donor countries are in a strong position vis-à-vis the receiving country they have to find out how far they can go without irritating their partners. The chase after criminals is not a function that can easily be called a diplomatic one. The growth of international crime, however, made international cooperation and, to a certain extent, the involvement of diplomatic missions necessary. An area where this is particularly true is narcotics control. The governments of countries that face great problems with drug abuse have attached narcotics and crime experts, so called drug liaison officers, to their diplomatic missions in those countries that are centers for drug production or trafficking.61 Also, foreign service officers can be involved in fighting drug production and trafficking, for example, when a demarche has to be made with the host government. Drug liaison officers and diplomats cooperate closely in the Dublin Group, which got its name from its first meeting in the Irish capital. This group is an informal mechanism for consultations in which the EU member states, Australia, Canada, Japan, Norway, the United States, and the EU Commission participate.62 In countries targeted because of drug-related crimes, altogether more than 50 countries, the representatives of the Dublin Group countries are organized as “mini-Dublin groups”. These groups advocate, for example, poppy eradication, crop substitution, steps against heroine manufacturing, measures against drug smuggling, and the prosecution of traffickers. How far they interfere into the host country’s internal affairs is illustrated by the fact that they even try to influence legislation in the host country by putting forward their own drafts for bills. They may, for example, recommend legislation against money laundering and present a draft of such a bill.

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Though this cooperation relates to the core of internal affairs, the police authority of a state, receiving states are generally willing to accept it, because no government wants to create an impression that it is not participating in drug control. Here again tensions between the sending and receiving country exist and sometimes come to light. When a government has the impression that a foreign drug enforcement agency is going too far, it may react angrily. In May 1997, Pakistani security agencies arrested a Pakistani national who was working for the American Drug Enforcement Agency (DEA) in Pakistan, claiming that he had run independent operations that were unknown to the Pakistani side. According to a newspaper report, Pakistan was willing to cooperate with the Americans, “but it was not going to permit its sovereignty to be violated and its territory to be turned into a US hunting and prospecting ground”.63 Even in situations that make interference regularly acceptable the receiving state can declare its displeasure, call the activities of a diplomat interference, and send him or her home. The prohibition of interference in the affairs of the host country and the right to declare a diplomat unwelcome are still on the books. The Diplomat as persona non grata As was discussed previously, a diplomat risks being called persona non grata when the host government feels that he or she is too much involved in the host country’s political affairs. It is often a question of trial and error to find out how far a diplomat can go without being called to order. Political interference is, however, not the only reason to declare a diplomat persona non grata. Governments also use their authority regarding the channel of communication to declare a foreign diplomat unwelcome for other reasons. The expulsion of a diplomat is not necessarily the consequence of a personal offence as the traditional interpretation has it.64 Sometimes governments declare a diplomat persona non grata to express displeasure with the policy of the sending state.

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In January 1987, France declared Australia’s consul general to New Caledonia persona non grata after Australia had criticized France’s reluctance to grant greater autonomy to New Caledonia at the UN.65 In 1988, relations between Hungary and Romania deteriorated because of the mounting oppression of the Hungarian minority in Romania. The Hungarian Parliament called the planned destruction of thousands of villages and the relocation of their inhabitants a violation of human rights; tens of thousands of Hungarians demonstrated in front of the Romanian embassy in Budapest against these plans. The Romanian government reacted by expelling all the staff of the Hungarian consulate in ClujNapoca.66 After Mexico had supported a censure of Cuba by the United Nation in May 2004, President Fidel Castro harshly criticized the Mexican government, saying that Mexico’s prestige had “turned into ashes”.67 Mexico withdrew its ambassador from Havana and declared a Cuban diplomat in Mexico persona non grata. In July 2007, the British government expelled four Russian diplomats from London because the Russian government did not extradite the chief suspect in a sensational murder case.68 The Russian government argued that the Russian constitution does not permit the extradition of a citizen. In November 2006, Alexander Litvinenko, a former Russian intelligence officer, died in London from the deadly radioactive isotope polonium-210. The prosecution had named Andrej Lugovoy, a former KGB bodyguard, as the main suspect. The Russian government in return expelled four British diplomats from Moscow.69 After Colombian forces crossed into Ecuador and killed a guerilla leader, Venezuela expelled the ambassador from Columbia.70 In other cases diplomats are expelled because of personal misbehavior. In December 1996, Canada expelled a Ukrainian viceconsul because of drunk driving and various other criminal offences.71 In May 2000, the Lithuanian consul general to the Unite Arab Emirates was declared persona non grata because the police found him too drunk to drive.72 In January 2005, Belarus expelled a Czech diplomat because of alleged sexual indiscretions with a minor.73 In April 2006, the Japanese government declared

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a diplomat from the Ivory Coast persona non grata because he had rented his apartment to gangsters who used it for illegal gambling.74 There are also activities that are unlawful. If such an activity becomes known to the host country, it regularly reacts by calling the involved diplomat persona non grata: — assistance or participation in terrorist activities in the host state; — spying or subversive activities; — participation in the kidnapping of one’s own nationals in the receiving state; — illegal trafficking of dutiable or banned goods. Some examples may illustrate in detail the scope of what governments consider prohibited activities of diplomats. In 1986, the government of the Federal Republic of Germany expelled five Syrian diplomats because of their involvement in terrorist activities; they were involved in the bombing of the German-Arab Friendship Society building in West Berlin, which had injured nine people.75 In February 2003, the Philippine government expelled an Iraqi diplomat accusing him of having ties to the Abu Sayyaf terrorist group.76 In December 2004, the Saudi government expelled the Libyan ambassador and recalled its own envoy from Tripoli because of a Libyan plot to assassinate the crown prince.77 The accusation of spying is the most frequently used reason for declaring diplomats personae non gratae. It had its peak during the Cold War. One of the most spectacular cases happened in 1971 when the British government sent 105 Soviet officials packing, among them many diplomats; in its aide-memoire, handed to the Soviet chargé d’affaires, the British government called the activities of the Soviets involved “operations against the security” of the United Kingdom and therefore “inadmissible”.78 Even after the end of the Cold War, diplomats are still sent home because of spying. Following are some examples: In May 1996, Russia declared four British diplomats personae non gratae accusing them of spying; Britain reacted by doing the same with four Russian diplomats.79

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In March 1998, Norway declared five Russian diplomats personae non gratae, accusing them of espionage.80 In January 2000, Poland declared nine Russian diplomats personae non gratae because of spying activities.81 The Russian government in return expelled nine Polish diplomats. After Robert Philip Hanssen, an FBI agent, was charged with spying for Moscow, the US government in March 2001 asked four Russian diplomats to leave the United States within 10 days and an additional 46 diplomats to return home by 1 July.82 Russia responded in kind. In the wake of the Mones scandal — Mrs. Ana B. Mones, a senior Pentagon intelligence analyst, had spied for Cuba — two Cuban diplomats from the Cuban Interest Section in Washington and two diplomats from the Cuban Mission to the United Nations in New York were declared personae non gratae in November 2002 by the US government.83 In January 2008, Latvia expelled a Russian diplomat for “activities incompatible with the person’s diplomatic status”, a phrase usually referring to espionage. Russia expelled a Latvian diplomat in return.84 If governments come to the conclusion that diplomats are engaged in subversive activities, they send the diplomats home. When the government of Egypt discovered that the Libyan ambassador had asked an Egyptian to take part in a clandestine organization against the Egyptian government, the ambassador was asked to leave.85 The government of the Federal Republic of Germany reacted in the same way in the so-called East Berlin Spy Ring incident: In June 1967, agents of the Korean Central Intelligence Agency (KCIA) had kidnapped 17 Korean citizens residing in Germany and brought them forcibly to South Korea, where they were to be tried for spying for North Korea. On 13 July, 1967, the German government expelled three South Korean diplomats who had been involved in the kidnapping.86 Unfortunately, some authoritarian governments misuse their embassies to intimidate and spy on their own nationals.87 In October 1976, the governments of Denmark, Norway, Finland, and Sweden accused North Korean diplomats stationed in their capitals of illegal trafficking of narcotics, cigarettes, and alcohol.88

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Altogether, 17 North Korean diplomats had to leave the four Nordic countries. Though these activities may be considered as indirect interference in the affairs of the host country, they are first of all unlawful and as such prohibited by Article 41, para. 1, sentence 1, of the CDR and Article 55, para. 1, sentence 1, of the CCR. The two duties — to respect the laws of the receiving country and not to interfere in its affairs — are unrelated.89 The first duty is to respect the host country’s legal system; the other duty is to respect the host country’s decision making process. The rule that a receiving country can call a diplomat from a sending country persona non grata at any time exists and is applied. Thus, a diplomat who crosses the limits, or whose government crosses the limits, cannot be sure whether he will be expelled or not. The position of a diplomat serving abroad is strange. As long as he is persona grata in the host country he enjoys privileges and immunities. At the moment he becomes persona non grata; however, he is less protected than other aliens are. The host country is under no obligation to explain the decision to send a diplomat home, whereas it has to base the expulsion of other aliens on a just reason.90 Diplomats react differently. Some are cautious in order not to be expelled. Others try to widen their scope of permissible activities on the basis of the increasing interdependence of states. Host governments, however, will continue to be led by the suspicion that diplomats hear and see too much. It is up to them to block efforts that they consider as going too far. They risk, however, that similar activities by their own diplomats in other states are equally wrecked in the name of reciprocity.

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Chapter 5

Diplomatic Relations

The Establishment of Diplomatic Relations and Diplomatic Missions It comes as no surprise that Article 2 of the Vienna Convention on Diplomatic Relations makes the establishment of diplomatic relations and diplomatic missions dependent on mutual consent. Since all states enjoy sovereign equality (Article 2, para. 1, of the Charter of the United Nations) no state is obliged to take up diplomatic relations with another state against its will. The Convention does not recognize a subjective right of legation.1 When two sides agree on establishing diplomatic relations it means that they are willing to communicate with each other. Therefore, agents that are responsible for the communication are needed. These agents are the “permanent diplomatic missions” mentioned by Article 2 of the CDR. Thus the establishment of diplomatic relations is normally achieved by an exchange of diplomatic missions. No special form of documentation is required for an agreement to establish diplomatic relations and missions. The agreement may be laid down by a treaty. A well-known example is the Treaty of Rapallo of April 16, 1922, by which Germany and the Soviet Union agreed to resume diplomatic relations immediately.2 Since the establishment of diplomatic relations is an important act, it is often done by correspondence, that is by an exchange of letters, notes, or memoranda. For example, when the Federal Republic of Germany and the Soviet Union took up diplomatic relations after the Second 95

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World War, it was done through an exchange of letters between the two heads of government. On September 13, 1955, Chancellor Konrad Adenauer addressed a letter to Prime Minister N. A. Bulganin that said the following among other things: “On the basis of the consent which was reached in the course of the negotiations between government delegations of the Federal Republic of Germany and the Soviet Union I have the honor to confirm that the Federal Government has decided to take up diplomatic relations with the Government of the Soviet Union and to exchange diplomatic representatives in the rank of ambassadors extraordinary and plenipotentiary”.3 Prime Minister Bulganin replied in the same way on the same day. Apart from correspondences, a joint communiqué or a joint declaration that informs about the decision of two governments to establish diplomatic relations could be sufficient to voice the mutual consent. The decision of the governments of the Federal Republic of Germany and the People’s Republic of Hungary to establish diplomatic relations was published on December 21, 1973, in a joint communiqué that had been agreed upon earlier. When the United States established diplomatic relations with the Holy See on January 11, 1984, both sides had their agreement announced by their spokesmen.4 Prime Minister Fidel Castro of Cuba chose a unique way to establish diplomatic relations with the People’s Republic of China: He announced his decision at a mass rally in 1960; the Chinese government was caught by surprise but agreed.5 When two states that previously had no diplomatic relations enter into political negotiations, it may imply consent to establish diplomatic relations, but not necessarily so. For example, at the end of the 1980s and beginning of the 1990s, members of the United States government started to talk to and engage with members of the government of the Democratic People’s Republic of Korea (DPRK), but this did not imply the establishment of diplomatic relations. The Agreed Framework of 1994 between the United States and North Korea envisaged the establishment of diplomatic relations between the two partners as a reward for good behavior by North Korea.6 The same is true for the Joint Statement of the

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Six-Party talks of September 2005.7 These agreements illustrate that governments can play with the establishment of diplomatic relations by making it dependent on political preconditions. Not every state wishes to maintain permanent diplomatic missions in all states with which it has diplomatic relations, because diplomatic missions can be a strain on the national budget and human resources. A way out of these difficulties is multiple accreditation: The state accredits an ambassador not only to the state where he is residing but also to other states. This procedure is accepted by Article 5, para. 1, of the CDR. Multiple accreditation, however, requires that the states concerned are notified and do not object. Multiple accreditation is frequently practiced by smaller states in particular. For example, Belize maintains only 15 bilateral missions abroad: The ambassador to the United States is also accredited to Canada; the ambassador to Mexico also to Venezuela, Jamaica, Columbia, and Chile; the ambassador to Guatemala also to Honduras; the ambassador to Belgium also to France, Spain, and Germany.8 However, also large states use multiple accreditation. For example, the US ambassador to Barbados is also accredited to Antigua and Barbuda, Dominica, Grenada, St. Kitts and Nevis, St. Lucia, and St. Vincent and the Grenadines (Eastern Caribbean States).9 The US ambassador to Papua New Guinea is also accredited to the Solomon Islands and to Vanuatu.10 Whether multiple accreditation is really practical is open to question. The ambassador can travel only now and then to the countries to which he is additionally accredited. He is unable to establish continuous contacts and to continuously observe what is going on in these countries. Under these conditions he is not, as he is supposed to be, a permanent channel of communication between both countries. He also cannot fulfill his duties properly if there are conflicts of interest between his two host countries. Therefore, multiple accreditation only makes sense in cases of low intensity relations.11 The questionable efficiency of multiple accreditation is illustrated by the following examples: Lee Khoon Choy, ambassador of Singapore to Egypt between 1968 and 1970, was concurrently accredited to Ethiopia, Lebanon, Pakistan, and Yugoslavia. It is not

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surprising that the foreign ministry in Singapore expected only that he made his “presence felt as far as possible”.12 An ambassador of a smaller European country who was based in Nigeria in the first half of the 1990s was supposed to be accredited to ten more African states. However, when he left Nigeria after having completed his term, he had succeeded in presenting his credentials in only four of the ten countries. To improve efficiency, a diplomatic mission, headed by a chargé d’affaires ad interim, can be set up in the country where an ambassador is additionally accredited (Article 5, para. 2, of the CDR). The United States has, for example, a chargé d’affaires in Grenada.13 Article 5, para. 2, does not give authorization to establish an office below the rank of a diplomatic mission in a country where the ambassador is doubly accredited.14 Modern information and communication technology offers the possibility to create virtual embassies. The US government makes increasingly use of this possibility and has set up a number of virtual presence posts.15 Such a post has an own web site that can be used for communication. For example, the American embassy in Port Moresby established a virtual presence post in Vanuatu, that is, an interactive web site that can be used during office hours to communicate with the embassy staff in Port Moresby.16 There is another possibility to save budgetary funds: Article 6 of the CDR permits that the same person be accredited as head of mission by more than one state. This rule was invented by the CDR and had no precedence, and this option is also called multiple accreditation. It means that an ambassador represents not only his own state but also other states. He, therefore, has to present separate credentials and holds his post under more than one flag. Such a solution is conceivable only if the second state that the ambassador represents has close relations with the ambassador’s home country. Some Caribbean micro-states, namely Antigua and Barbuda, Dominica, Grenada, Montserrat, St. Kitts and Newis, St. Lucia and St. Vincent and the Grenadines, were thought of having made use of this option in Ottawa.17 However, their diplomatic mission in Ottawa as well as their missions in Geneva and Brussels figure now as missions of the Organization of Eastern

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Caribbean States of which these seven states are the only members.18 Though the member states of the European Union (EU) enjoy close relations, they have not made use of multiple accreditation offered by Article 6 of the CDR. The collaborative efforts of EU member states have been limited to sharing embassy premises. For example, Germany, Italy, and the Netherlands are supposed to share a common building that is going to be built in Abuja (Nigeria). In October 2006, Germany and France signed a framework agreement to jointly accommodate embassies and consulates.19 An innovation to distribute diplomatic representation in a country to various localities is the American Presence Post (APP).20 APPs consist of one or two officers and very few local employees and have the task to establish local contacts and to promote business and public relations. APPs are financed by the embassy in the host country. They provide only emergency consular services for American citizens and do not issue visas. The US government maintains APPs for example in Lyon, Rennes, Bordeaux, and Toulouse.21 Legally the APPs are consulates and established according to the rules of the CCR.22 Since they are mainly performing diplomatic functions, but are formally consulates, the American Presence Posts are hybrids. The exchange of diplomatic missions is the most efficient and thus the normal way to bring diplomatic relations to life. However, diplomatic relations can exist even if diplomatic missions are not mutually established. International practice indicates that the establishment of diplomatic relations and the establishment of diplomatic missions are different actions.23 Countries may prefer to communicate diplomatically in a third country, for example, through their permanent missions at the UN in New York. Or they may accredit one member of their Ministry of Foreign Affairs in a third country. For example, Iceland is represented in a number of countries in Africa, America, and the Pacific by ambassadors residing in Reykjavik.24 In many cases a country has exchanged diplomatic missions with a limited number of states, but maintains diplomatic relations with many more. The Republic of the Maldives, for example, maintains nine embassies abroad, but has diplomatic relations with 141 countries.25

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Recognition of a Government The term “diplomatic relations” is abstract. Diplomatic relations are realized through people, through diplomats. Diplomats are responsible for communicating with their hosts. Diplomats are sent by governments. Therefore, the establishment of diplomatic relations presupposes that the governments concerned recognize each other. Recognition of a government expresses the acceptance of a government. A declaration of recognition becomes necessary only if a state experiences an irregular change in its government form.26 Otherwise changes of governments are viewed as internal affairs of a state and are considered irrelevant for international intercourse. Recognition of a government is distinct from recognition of a state. Recognition of a state has to do with the quality of the recognized entity as a subject of international law. In the words of Article 14 of the Charter of the Organization of American States (OAS) as amended in 1997, “Recognition implies that the State granting it accepts the personality of the new State, with all the rights and duties that international law prescribes for the two States”.27 Recognition of a government, on the other hand, pertains to the status of the government only. Recognition of a government implies the recognition of that state, but the converse is not necessarily true. That is, it is possible for a state to be recognized, but not its government. For example, after the Taliban had established control over the larger part of Afghanistan in 1998, most countries (with the exception of Pakistan, Saudi Arabia, and the United Arab Emirates) did not recognize them as the government of Afghanistan but at the same time did not deny that Afghanistan was a state.28 The criteria for the recognition of governments are controversial. Practice among states is inconsistent, though a doctrine of effective control seems to prevail.29 Under this doctrine a new government may be recognized if it has actual control over the country, if its authority does not face any major resistance, and if it is backed by a substantial part of the population. Even if these criteria are fulfilled by a new government, however, governments of third countries are not obliged to extend recognition to the new government.

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Recognition of a government is at the discretion of third countries. Mexico, for example, never recognized the government of General Francisco Franco of Spain.30 The Taliban tried hard to win recognition by additional countries. In August 1998, they addressed letters to a number of Western countries, asking them to revive diplomatic relations. Even though the Taliban enjoyed effective control over most of Afghanistan, Western countries did not recognize them as the government of Afghanistan and consequently did not restore former diplomatic relations. Here, a subjective element came into play.31 Governments take the future behavior of the new government, particularly its willingness to respect international law, into consideration when extending recognition. In this case, most countries felt that the Taliban did not pass this subjective test because of their disregard of human rights and anti-terrorist efforts of the world community. States also hesitated to recognize the Taliban government because they wanted to avoid the impression that they approved of the way the Taliban came into power. The difficulties that arise from the implications of recognizing of a new government have resulted in changes in the practice of states. In 1930, Mexico expressed an interest in abolishing the practice of recognizing foreign governments, since it considered recognition an infringement of that country’s sovereignty.32 The issue was taken up again after the Second World War by Ecuador and Mexico. A number of other countries have used the argument that they had given up the practice of recognizing governments in specific cases. France, for example, used this argument in 1963 after the government of President Ngo Dinh-Diem of South Vietnam had been overthrown. In fact, it became so common for governments to dissociate themselves from the practice of recognition that Italy in 1979 called this trend a “dominant rule of international law and practice”.33 Britain, which had been mentioned as exception in the Italian statement, soon joined the new trend. On April 28, 1980, the British Foreign Secretary declared that the British government recognized states, but would no longer recognize governments; in the case of an unconstitutional change of regime, the British government would consider what dealings it would want to have

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with the new government. The basis for the assessment would be “whether they are able of themselves to exercise effective control of the territory of the state concerned and seem likely to continue to do so”.34 Earlier in 1977, the US government had already declared that it would try to avoid the use of recognition and focus on the question “of whether we wish to have diplomatic relations with the new governments”.35 Here, recognition of a government and diplomatic relations get close to each other.36 It must, however, be mentioned that recognition of a government is distinct from the establishment of diplomatic relations. This condition becomes obvious in the exceptional cases where a government recognizes another government but has not yet established diplomatic relations with it. For example, the United States recognized the government of Angola on May 19, 1993, but proposed to establish diplomatic relations nearly a month later, on June 17, 1993.37 Another interesting case is the relationship between the United States and the Democratic People’s Republic of Korea. Because the United States has negotiated a number of issues with the government of the DPRK, and concluded the aforementioned agreements, it recognized not only the state of the DPRK but also its government. The United States, however, has not established diplomatic relations with the DPRK. The establishment of diplomatic relations and the recognition of a government are not determined by any formal requirements. A state can express its recognition of another government in any way it chooses. The offer to take up diplomatic relations definitely implies the recognition of a government. The recognition of a new government has consequences for the practical side of diplomacy: The new government inherits its country’s embassies and consular buildings with their equipment as well as the bank deposits.38 The Holy See The Holy See is a traditional participant in diplomacy. As one can take from Canons 360 and 361 of the Code of Canon Law, the Holy

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See is defined as the Pope alone or together with the Roman Curia.39 Though the Holy See represents a spiritual authority and not a state, it enjoys the right to send and receive envoys. This right is recognized by the Convention on Diplomatic Relations. Article 14 of the CDR treats nuncios as equal to ambassadors and internuncios as equal to envoys accredited to heads of state. Article 16, para. 3, of the CDR, confirms the practice of various countries of granting the nuncio the position of dean of the diplomatic corps regardless of his seniority rank. The establishment of diplomatic relations between the Holy See and states is based on mutual consent. Various countries have not recognized the Holy See during certain periods. The United Kingdom took up diplomatic relations with the Holy See in 1914 after a break of over 350 years.40 Mexico renewed ties with the Holy See in 1992 after a rupture lasting more than one century.41 That the Holy See’s position in diplomacy is firmly entrenched is illustrated by the fact that that it has diplomatic relations with 172 countries.42 The Holy See customarily enjoys legal personality in international law, at least partially.43 It can conclude international treaties and become a member of international governmental organizations. The Holy See is, for example, a member of the International Atomic Energy Agency (IAEA), the Organization for Security and Cooperation in Europe (OSCE), and the World Intellectual Property Organization (WIPO). Vatican City (Città del Vaticano) is an entity different from the Holy See. The Conciliation Treaty, which constitutes the first section of the Lateran Pacts, concluded in 1929 between the Holy See and Italy, established the territory of Vatican City, and recognized the permanent residents within the territory and the sovereign authority of the Holy See over the territory and its residents (Articles 3 to 9).44 Thus the Vatican City is a state. As a functioning micro-state Vatican City is a member of a number of international governmental organizations, such as the International Telecommunication Union (ITU) and the Universal Postal Union (UPU).

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Changes in the Relationship Interests of states change, and so do states’ foreign policies. These changes have an impact on diplomatic relations. When interests of states clash, tensions between the states develop. This is the hour of the diplomat, for it is his task to try to contain, and hopefully reduce, the tensions. When an incident occurs, he will use his knowledge of the country and his contacts. He will know whom to talk to and how to argue in order to manage the situation, with a view to finding a solution acceptable to both countries. Conflict management is the diplomat’s business, and thus nothing out of the ordinary. Conflict management is easier behind closed doors because it can concentrate on the objective reasons for the differences between countries. This is the typical way in which a conflict is dealt with by diplomats. The admission of the public into diplomacy risks introducing subjective elements, like national respect, honor, animosity, and revenge, into the process. However, sometimes international incidents occur that attract strong public interest. In these cases some governments might try to use public opinion to impress or influence their counterpart. In any event they will typically keep their public informed about what is happening. An example of such an incident is the Hainan case.45 On April 1, 2001, a US EP-3E reconnaissance aircraft collided with a Chinese F-8 fighter jet in the airspace above the South China Sea. The Chinese plane crashed into the sea, and its pilot was lost. The US aircraft, despite being severely damaged, managed to land at a Chinese air base on Hainan Island. There the crew was taken into custody. The incident caused uproar in the public opinion of both countries. The Chinese government insisted that the United States acknowledge responsibility for the incident and apologize and tried to persuade the US government to stop reconnaissance missions near China. The US government insisted on a quick release of the crew and the aircraft. The leadership of both countries got involved, but the direct telephone connection between the two presidents was not used. The task of finding a solution was entrusted to the

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embassies of both countries: the US Embassy in Beijing and the Chinese Embassy in Washington. The diplomats engaged in roundthe-clock talks. Ambassador Joseph W. Prueher’s main counterpart in Beijing was Deputy Foreign Minister Zhou Wenzhong.46 The efforts resulted in the release of the crew on April 12, 2001. The basis for their agreement was a note dated April 11, 2001 from the US ambassador in Beijing to the Chinese minister of foreign affairs.47 In the note the Ambassador expressed that the US government was “very sorry” for the loss of the Chinese pilot and aircraft, for entering China’s airspace and for landing without prior clearance. The US government also acknowledged the Chinese government’s intention of discussing US reconnaissance missions near China in a meeting scheduled for April 18, 2001. Sometimes diplomats engage in settling conflicts between other countries, for example between their host country and a third country. Here is an example of active mediation48: On August 15, 1974, Mun Se Kwan, an ethnic Korean living in Japan, tried to kill South Korean President Park Chung Hee. Firing with his pistol during a ceremony held at the National Theater on the country’s National Day he missed the president, but killed the president’s wife Yook Yong Soo. Tensions between South Korea and Japan ran high. The assassin had been instructed by members of Chosen Soren, a pro North Korean association in Japan. The Japanese government, however, was not willing to accept any responsibility. In Seoul, people demonstrated before the Japanese embassy and President Park Chung Hee threatened to cut off diplomatic relations with Japan. At that point, the chargé d’affaires of the US embassy, Richard Ericson, stepped in. It was in the interests of the United States to reduce tensions between its two main allies in the Far East. Ericson found an arrangement with which both sides agreed. The Japanese government expressed its regrets, promised to take action against pro-north Korean persons in Japan and to send a prominent politician to Seoul. If relations between two countries are strained, it could happen that one of them prefers to express its misgivings by recalling its ambassador. The recall is often described as necessary “for

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consultation”. This procedure leaves diplomatic relations, as well as the existence of the embassy, unaffected. The recalling government deprives itself, however, of its best tool for conflict management as it is generally only the ambassador who has access to the highest government officials in the host country. To enter into discussions with the top echelon is often crucial, as the Hainan case has shown. In a crisis, the ambassador is really needed. Therefore, it seldom makes sense to recall him. Foreign ministers, however, seem to love this gesture and ambassadors are often recalled. Here are some examples: In July 2003, Canada recalled its ambassador to Iran, Philip MacKinnon, because the Iranian government had refused to return the remains of a Canadian freelance photographer, who had died in an Iranian prison after a blow to the head.49 In February 2005, the United States, the United Kingdom, France, and other EU countries recalled their ambassadors to Nepal to show their concern that King Gyanendra had dismissed the government and taken over power.50 In November 2007, Morocco recalled its ambassador to Spain to protest against the visit of the Spanish king to Ceuta and Melilla, two Spanish enclaves that are claimed by Morocco.51 In January 2008, Chile recalled its ambassador to Peru over a maritime border dispute.52 In February 2008, Serbia recalled its ambassadors from those countries that recognized Kosovo, among others from the United States, France, Turkey, and Slovenia.53 Occasionally, a sending state may express its misgivings by recalling its entire diplomatic mission in another country, temporarily or permanently. Yet, even when a mission is withdrawn, diplomatic relations continue to exist. The following are some examples of this situation: When in 1981 the United States closed its mission in Libya and asked Libya to withdraw its mission from the United States because of Libya’s support of terrorism, the US government insisted that relations to Libya were not terminated, but rather reduced “to the lowest level consistent with maintenance of diplomatic relations”.54 On August 21, 1998, Sudan recalled its diplomatic mission from the United States because of the American cruise missile attack on a Sudanese pharmaceutical factory.55

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Diplomatic missions are most often recalled because developments in the host country, such as an international or a civil war, prevent the missions from performing their functions. In such cases the last task for the embassies and consulates in the host country to perform is to assist their citizens in leaving the country. Some countries, including Germany and the United States, closed their missions in Kabul in 1989 for security reasons. Other countries, such as France, Italy, and Bulgaria, followed suite in November 1992.56 In October 1998, Denmark closed its embassy in Belgrade because of the likelihood of NATO’s military intervention in the Kosovo conflict.57 In April 2008, Denmark closed its embassies in Kabul and Algiers because of serious threats.58 The threats were caused by a reprint of a cartoon depicting the Prophet wearing a bomb as a turban. A country can, of course, choose to express its misgivings by other means than by recalling its ambassador or its mission. An example is the “cocktail wars” in Havana.59 EU countries tried to promote democratic development in Cuba and various EU member states decided among other things to invite representatives of the Cuban opposition to diplomatic receptions of their embassies in Havana. In the summer of 2003, the Cuban government answered by “freezing” contacts with EU embassies: Ambassadors were shunned, telephone calls not returned, and thus almost all official contacts with EU embassies ended. Only after the EU countries had decided not to ask any Cubans whether they are ministers or dissidents to their embassies’ receptions the Cuban government reestablished official contacts with all EU countries at the beginning of 2005. The EU agreed to restore normal diplomatic relations with Cuba.60 Rupture of Diplomatic Relations The dismantling of the relationship between two states can go further: Not only can the diplomatic missions be recalled, but also diplomatic relations can be broken off. According to Article 2 of the Convention on Diplomatic Relations, the consent of both parties is necessary for establishing diplomatic relations. If one of the two

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parties withdraws its consent, relations are cut off. Thus, it is a unilateral act that brings about this result. The withdrawal of consent implies withdrawal of the diplomatic missions from the two capitals. To break off diplomatic relations no longer means that the parties concerned intend to wage war against each other. It is, however, a rather strong way to express misgivings about the relationship and happens rather often. Some examples may underline this concept. At the beginning of 1965, when Walter Ulbricht, the head of state of the German Democratic Republic, planned to visit Egypt, the Federal Republic of Germany tried to prevent the trip by threatening to stop its development assistance to Egypt. After the Egyptian government had disclosed details about a delivery of weapons by the Federal Republic of Germany to Israel, and after Israel and the Federal Republic of Germany had taken up diplomatic relations on March 12, 1965, the Arab League called upon its members to sever diplomatic relations with the Federal Republic of Germany. Most Arab states complied.61 After the Israeli Sixty-day War with Egypt in 1967 Algeria, Egypt, Iraq, Mauritania, Sudan, and Syria severed relations with the United States.62 The United States does not have diplomatic relations with Cuba since January 1961 and with Iran since April 1980. In March 1999, Yugoslavia cut off diplomatic relations with Britain, France, Germany, and the United States because of NATO air raids. In April 2006, Chad broke off diplomatic relations with Sudan after a rebel attack blamed on the Sudanese government.63 In November 2006, Rwanda broke off diplomatic relations with France after legal proceedings against Rwanda’s president were initiated in France.64 The severance of diplomatic relations is a questionable instrument of diplomacy. Both countries lose normal channels of communication exactly when they are most urgently needed. Further, since both countries remain members of the international community, they cannot avoid meeting, particularly in international organizations. The US Department of State describes this situation as “a passive acceptance of representation in multilateral bodies”,65 and it is actually a blessing in disguise, because sessions of international

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governmental organizations provide an opportunity for both sides to meet and discuss the future of relations between their two countries. As international practice shows, the time will come when both countries decide to take up official relations again. Therefore, it is recommended that governments approach the possible severance of diplomatic relations with caution. In this context, it is interesting to note that Pakistan and India did not sever diplomatic relations even at the moment when armed conflicts between the two countries broke out in 1965 and 1971. Article 45 of the CDR takes care of the aftermath of recalling of a diplomatic mission and the severance of diplomatic relations (provided the countries involved continue to exist). In such cases, the premises of the mission, together with its property and archives, remain in the receiving state. They no longer, however, enjoy the inviolability flowing from Article 22. According to Article 45, lit. a, of the CDR it is the duty of the receiving state to respect and protect the premises of the mission. Representatives of the receiving state may enter the premises of the former embassy if doing so is necessary to comply with the obligation of protection. After diplomatic relations between France and Cambodia were severed in 1975, the French government sealed and guarded the former Cambodian embassy.66 The sending state may also entrust the custody of the former embassy to a third state (Article 45, lit. b). Another nicety in intergovernmental relations is the derecognition of a government. As actus contrarius de-recognition means that a government is no longer accepted as representative of a particular state.67 This is a side effect of the recognition of another government of the same state. The best known case is the recognition of the government of the People’s Republic of China as the sole government of China by various countries, an act that was accompanied by the de-recognition of the Taiwan government.68 After Japan had established diplomatic relations with the People’s Republic of China on September 29, 1972, it downgraded its relationship to Taiwan to “working relations on a non-governmental basis”.69 There is a Japanese “Interchange Association Taipei Office” in Taiwan and a representation of the Taiwanese

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“Association of East Asian Relations” in Tokyo. The United States made this same recognition and accompanying de-recognition on January 1, 1979.70 The United States maintains an “American Institute in Taiwan”, and Taiwan is represented by the “Taipei Economic and Cultural Representative Office in the US”.71 Other countries that enjoy diplomatic relations with the People’s Republic of China have also established liaison offices in Taipei under names that stress the unofficial function of these offices. The United Kingdom has a “British Trade and Cultural Office”, Germany, a “German Institute Taipei” and a “German Trade Office Taipei”, and France a “French Institute in Taipei”. Since Taiwan continues to be an entity of the international community and is an important partner for trade and business, many states have found it necessary to maintain a channel of communication with it. That these bureaus are of an “unofficial” character is a fiction. This condition is illustrated by the way in which some of these offices are staffed: The American, Japanese, and French offices have been headed by former ambassadors. Some European countries have sent foreign service personnel to Taipei. The Taiwanese offices abroad are made up by personnel from the Ministry of Foreign Affairs.72 The fiction is, however, useful, because it allows countries to deal with the Taiwanese authorities without irritating Beijing. If there is a need for diplomacy, channels of communication will be established, though not in the traditional form. A special case of “de-recognition” deserves to be mentioned. On October 9, 1983 an attack on the life of South Korea’s President Chun Doo Hwan was made at the Martyr’s Mausoleum in Yangon (Myanmar) where he was supposed to lay a wreath during his state visit. The explosion killed 16 Koreans and 5 Burmese, including various high ranking South Korean government officials. After the government of Myanmar discovered that the explosion was the work of saboteurs sent by the North Korean government, it announced on November 4, 1983 that it had decided, “to de-recognize the diplomatic status of the government of the Democratic People’s Republic of Korea”.73 The North Korean diplomatic mission was ordered to leave Myanmar within 48 hours. As one can see from the

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context, it was not the intention of the government of Myanmar to cease accepting the North Korean government as representative of the DPRK, but rather it wished to cut off diplomatic relations with the DPRK. Caretaker Embassies The state that recalls its mission or severs diplomatic relations often continues to have interests in the receiving state. Article 45, lit. c, of the CDR authorizes the sending state to appoint a caretaker state. This state then protects the interests of the sending state and of its nationals in the receiving state. However, the protecting state must be “acceptable” to the receiving state making it necessary to have the protecting state approved in advance.74 Switzerland and Sweden are often chosen as protecting powers because of their neutrality. During the Second World War, for example, Switzerland represented the interests of 35 countries.75 During the Cold War Switzerland held between 4 and 24 mandates of protection. As of spring 2008 Switzerland discharged four mandates. The original practice was that the protecting state represented the interests of the protected state through the staff of its own embassy in the receiving state. This pattern was followed, for example, when the United Kingdom and Iran broke off diplomatic relations in 1989.76 In this case, Sweden became the protecting power for British interests in Iran. Since all British embassy personnel had been withdrawn from Teheran, British interests were represented by Swedish embassy personnel only. The extent to which the caretaker power can represent the protected power has limits, as the caretaker power does not wish to harm its own relations with the receiving country when dealing with protection matters. Therefore, political issues do not fall within the protecting power’s responsibility. In the aforementioned case the United Kingdom and Sweden laid down the details for the Swedish representation of British interests in Teheran in a bilateral agreement in 1989.77 When relations between two states are particularly tense, problems for the protecting power increase. For example, Poland used

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to protect the interests of the United States in Iraq. A Polish diplomat worked in the US embassy building. Though he was charged mainly with protecting the premises of the mission, he had to state official US policy when pressed.78 These difficulties may be circumvented. While the protection was entrusted to a protecting country, the actual work may be done by staff members of the protected country that form an “interests section” in the protecting country’s embassy. Under these conditions, the staff of the protected state’s embassy continues to work in its own chancery, which is considered part of the protecting state’s premises. This was the way that the Federal Republic of Germany had its interests protected after Egypt broke off relations on May 13, 1965.79 As stated previously, the strain in relations had been caused by the recognition of Israel by the Federal Republic of Germany and the rapprochement between Egypt and the German Democratic Republic.80 Italy became the protecting power for the Federal Republic of Germany in Cairo. Afghanistan protected Egyptian interests in Bonn. Taking into account that the Federal Republic of Germany was a major power in Europe and had been a donor country for Egypt, the Egyptian government agreed that 6 diplomats plus 16 support staff would stay on in both capitals. This pattern was followed and further elaborated upon when Egypt broke relations with the United Kingdom in December 1965 as a way of voicing its misgivings that the United Kingdom had refrained from using force against Rhodesia when it declared its independence.81 British interests in Cairo were then represented by the Canadian mission to which an interests section made up by staff of the former British mission in Cairo was attached. Egypt’s interests in London were represented by Iraq. The details were agreed upon by an exchange of notes. According to the British note of January 20, 1966 which was based on consent with the Egyptian government the British Interests Section in Cairo would be run by 22 diplomats and 23 administrative staff officers of the former British embassy.82 The diplomats would enjoy the same privileges and immunities that were enjoyed by Canadian diplomats. The British Interests Section was also allowed to maintain its

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communication facilities. Since both countries continued to have interests in each other they found a solution to lessen the disadvantages of severing diplomatic relations. Another case is rather revealing: When Iceland broke off diplomatic relations with the United Kingdom in 1976 British interests were accommodated by a British Interests Section in the French embassy in Reykjavik.83 The Interests Section was composed of all the members of the former British embassy in Reykjavik with the exception of the ambassador. Here again both sides preferred to maintain the usual channels of communication. The relationship between the United States and Cuba is organized in such a peculiar way that it makes one nearly forget that both countries have not enjoyed diplomatic relations for decades. When diplomatic relations between the two countries were severed on January 3, 1961, Switzerland became the protecting power for the interest of the United States in Cuba and Czechoslovakia (later replaced by Switzerland) became the protecting power for Cuban interests in the United States. Switzerland sent additional embassy staff to Havana to meet its obligations as protecting power. In 1977, however, the United States and Cuba decided that they needed closer contact. They agreed that both interests sections could have a home based staff of up to ten persons, that this staff though being part of the Swiss and Czech embassies respectively could have direct communications with the host country and that the heads of mission of the two sections would be actually treated as chiefs of mission.84 They would enjoy diplomatic immunities and privileges, but were denied the privileges to fly their flags and use their own seal. In the Swiss view the US Interests Section of the Swiss embassy could perform its duty “in an eminently independent way”.85 In the American view “the two interests sections were to do everything embassies would have done-everything that is, except flying their colors and calling their chiefs ‘ambassadors’”.86 This interpretation is shared by the U.S. Interests Section (USINT) in Havana, which states on its web site “The functions of USINT are similar to those of any U.S. government presence abroad: Consular services, a Political and Economic Section, a Public Diplomacy

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Program, and Refugee Processing unique to Cuba”.87 Indeed, USINT is not an embassy in disguise, but more like an embassy disguised as an interests section. These practices require an agreement between the states involved. The protecting state will insist that the issues for which it is considered responsible on behalf of the protected state are clearly determined. A good example of such an agreement is the aforementioned one concluded between Sweden and the United Kingdom on July 1989 in order to arrange Sweden’s responsibilities as a protecting power for the British in Iran.88 The Swedish mandate extended only to “administrative, humanitarian, and consular matters”. Thus, political questions were left out. It was also agreed that Sweden would avoid “taking action that could damage its position or good name in the receiving country”. In other words, the protecting power was assured that its activities did not endanger its own interests in the receiving state. In normal diplomatic relations both states that have severed relations are receiving and sending states at the same time. In their capacity as receiving states, they have to approve the protecting state. The necessary reciprocity can facilitate reaching an understanding. The interest sections mentioned so far help to bridge the gap in communications between two states that have recalled their diplomatic mission from the other state or have severed diplomatic relations entirely. But interest sections are also useful in a different situation. If two states do not have diplomatic relations and one of them wants to establish a channel of communication below the level of diplomatic relations, it can entrust the protection of its interests in the other state to a third state. In this case the prior consent of the receiving state is necessary (Article 46 of the CDR). In addition, an interest section manned by staff from the protected state can be established within the organization of the embassy of the protecting state. After unification in 1990, Germany took this approach in the Democratic People’s Republic of Korea and in Cambodia where only the defunct German Democratic Republic (GDR) had been officially represented.89 In North Korea, Sweden protected German interests.90 In January 1991, two German

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diplomats arrived in the North Korean capital, Pyongyang, to form the “office of the protection of the interests of the Federal Republic of Germany” within the Swedish embassy. They worked and lived in the embassy compound of the former GDR. North Korea found a similar solution for its representation in united Germany; its interests were protected by China. This status was upheld until both counties established diplomatic relations on March 1, 2001.91 From July 1991 until February 1992, Hungary protected German interests in Cambodia. States have demonstrated flexibility in arranging channels of communication whenever a need for them has arisen after diplomatic relations have been severed or before they have been established. States have seen to it that they themselves, via interests sections manned by their own staff, can pursue their policies in countries with which they no longer have, or have not yet, established diplomatic relations. Interests sections have developed into quasi embassies. Yet, an important distinction remains and needs to be stressed: However hard two countries without diplomatic relations may try to forge channels of communication, they do not enjoy true diplomatic relations, and the legal status of their interests sections is conveyed by the protecting power.

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Chapter 6

The Members of Diplomatic Missions

Some Definitions The term “diplomatic mission” denotes an agency of the sending state in the receiving state, made up of people performing diplomatic functions. Today, the overwhelming majority of diplomatic missions are embassies, headed by ambassadors. According to Article 14, para. 1, lit. b, of the Convention on Diplomatic Relations it is still possible to establish diplomatic missions that are headed by an envoy or a minister; these missions are called legations. Legations dominated the diplomatic arena before the First World War, but have all but disappeared. Even missions, which according to Article 14, para. 1, lit. c, are headed by a chargé d’affaires en pied or en titre, mostly call themselves embassies. Missions exchanged between Commonwealth countries are called high commissions. The missions of the Holy See are called Apostolic nunciatures. The use of such varying terminology is sanctioned by Article 14, para. 1, lit. a, of the CDR “… and other heads of mission of equivalent rank”. The term “embassy” is used interchangeably with “diplomatic mission”; the term “legation” is often used as the generic name for a diplomatic mission. Article 1 of the CDR differentiates between various groups among the members of a diplomatic mission, without, however, giving precise definitions: — The Convention refers to the “head of mission” and the “members of the diplomatic staff” as “diplomatic agents”. One could 117

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also call them “diplomats”. They are the members who perform the diplomatic functions mentioned in Article 3. In practice, this category includes the chief of mission, the counselors, the first, second and third secretaries, and the attachés. The diplomats enjoy full privileges and immunities. — The “members of the administrative and technical staff” (Article 1, lit. c) enjoy limited privileges and immunities (Article 37, para. 2). They consist of supporting personnel and include members of the embassy who keep the mission running. — The “members of the service staff” are in most cases locally hired nationals of the receiving state and do not enjoy any immunities (Article 37, para. 3). Only if they are home-based nationals of the sending state they can receive modest immunities. — The Convention also mentions “private servants”. These people are privately employed by a member of the mission (Article 1, lit. h) and are exempt from dues and taxes on their salaries as long as they are not nationals of or permanent residents in the receiving state (Article 37, para. 4). If they are nationals of the receiving state, they do not enjoy any advantages. The Ambassador That the establishment of diplomatic relations and of a diplomatic mission needs the consent of both sides does not imply that the appointment of the members of the mission is also subject to mutual agreement. Indeed, Article 7 provides that the sending state may freely appoint the members of its mission. The most important exception to this rule is the requirement to request an agrément from the receiving state for the ambassador of the sending state (Article 4, para. 1). In the past, this practice was not undisputed. It can be justified by the traditionally prominent position of the ambassador. Originally, there was only the ambassador. He and the diplomats of equal rank (legates and nuncios) alone had “representative character”, meaning they alone had the right to negotiate on behalf of their sovereign with the sovereign of the host country.

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They employed a secretary and a small supporting staff whom they chose and paid themselves. Things have changed. Ambassadors represent states and have a large staff of government officials. Nevertheless, the distinction between the ambassador and his staff members is important. The ambassador is the official spokesperson of the sending country. He is the one who has access to high-ranking government officials. He symbolizes, more than anybody else does, the sending country in the receiving country. The ambassador is in the public eye in the host country if attention turns to the embassy. He is responsible for the embassy’s activities in the receiving state. He is the only member of the embassy entitled to use the flag and the emblem of his state (Article 20). Internally, the ambassador is also the superior of the members of his staff. The exchange of ambassadors completes the establishment of diplomatic relations. The exchange implies the recognition of the government and the statehood of the partner. Besides its legal meaning the appointment of ambassadors is politically significant. The exchange of ambassadors demonstrates that the two countries are willing and able to act as members of the community of states. Therefore, newly created states are eager to establish or maintain diplomatic relations and exchange ambassadors. This eagerness was also the reason that the states created by decolonization and the collapse of Yugoslavia and the Soviet Union accepted the existing diplomatic system without questioning its Western origins. Traditionally, there is no better way to illustrate the readiness for international cooperation than to establish bilateral relations. In view of the huge number of bilateral embassies, the appointment of a new ambassador is nothing special and is dealt with in a businesslike manner. After the government of the sending state has decided whom it will appoint as its new ambassador, it instructs its embassy to request the agrément of the receiving state. The embassy does so by a note verbale to which a curriculum vitae of the future ambassador is attached. The government of the receiving state needs time, usually a couple of weeks, to check the request. Then it communicates its decision, normally its agrément, via note verbale to the embassy. If the agrément is refused, it is not necessary

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to give reasons (Article 4, para. 2). This rule avoids unnecessary tensions in case an agrément is refused. When Iran, in February 2002, refused the agrément for a British ambassador, relations between the two countries were strained.1 If reasons for the refusal are made public, the situation is likely to become embarrassing. Sometimes the receiving side delays issuing the agrément hoping that the sending side will reconsider its request. In relations with influential states, however, this system does not always work. For example, in 1975 the Vatican delayed the agrément for an ambassador of the Federal Republic of Germany because he would have been the third protestant German ambassador in a row to the Holy See. The German government, however, stuck to its decision, and the Vatican had no choice but to give in.2 Interestingly, this ambassador remained in Rome for seven years. In 1989, Brazil had objections against an ambassador designated by the United States; the Brazilian media mentioned the “turbulent professional background” of the candidate as reasons for objections. But the US administration insisted on its choice and the Brazilian government gave in.3 In order to avoid unpleasant discussions, it is an established custom not to disclose the name of the person for whom the agrément has been requested. It was not in accordance with diplomatic protocol when the Chinese government, in mid-1989, announced the name of its future ambassador to the United States before having requested the agrément.4 Likewise, the ambassador-designate is well advised not to talk about his destination before the agrément has been granted. It can also happen that a segment of the public in the receiving state protests against an ambassador after he has received his agrément. For instance, Amnesty International asked the Danish government in the summer of 2001 to take legal proceedings against the new Israeli ambassador, Carmi Gillon, because of his alleged involvement in acts of torture during his term as chief of the Israeli intelligence service.5 After having received his agrément the ambassador can proceed to the receiving country. In order to become formally accredited (Article 4, para. 1), he needs credentials (letters of credence). These

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consist of a letter from the head of the sending state to the head of the receiving state attesting the ambassador’s full powers. Credentials used to be very pompously stated but have now adopted simpler forms.6 The main point is the request that credit be given to all that the ambassador may say in the name of his government. The importance of an ambassador’s position is stressed by the elaborate ceremony for the presentation of credentials to the head of the receiving state.7 Some protocol offices are so anxious that the proper rules are followed that they invite the ambassador-designate to familiarize himself with the ceremony by watching a video before being actually received by the head of state. Normally, the new ambassador has to first review the troops and listen to the national anthems of his own country and the host country. All of this takes place outside the official seat of the head of state. He is then guided inside to the reception room where he meets the head of state to whom he presents his credentials. The ceremony ends with a conversation between the ambassador and his host. In the United States, the pressure of time on the president’s schedule is so great that it has become common practice to receive new ambassadors in groups. From the moment he has presented credentials the “head of mission is considered as having taken up his functions” (Article 13, para. 1, of the CDR). He enjoys the same status to have taken up his functions if he has earlier presented a copy of his credentials to the Ministry of Foreign Affairs of the receiving state, provided such a practice prevails in the receiving state. If the receiving state does not have such a practice, the ambassador has to accept a transitional period until he presents credentials. Within the embassy, he has all rights and obligations of the head of the mission, but in relations to the host government, it is the chargé d’affaires who is formally responsible during the transitional period. The latter, for example, has to sign or initial diplomatic correspondence with the host government. The ambassador-designate will sometimes be advised by the host government not to attend official functions, like those on the occasion of National Days. He is also supposed not to

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pay calls on other ambassadors. This stipulation is, however, often disregarded among ambassadors, who may interpret the calls as private ones. The dates when ambassadors take up their functions are also important because they determine precedence among all the ambassadors to a particular state (Article 16 of the CDR). Thus seniority alone determines precedence, the political weight and the forms of government of the ambassador’s home state are irrelevant. Questions of precedence have lost their former significance. Precedence plays a role mainly when ambassadors are arranged for formal or social functions. It has only one really important impact: The most senior ambassador is the dean (doyen) of the diplomatic corps. Some countries, however, have a different practice; according to the customs of a number of states the representative of the Holy See always becomes the dean, a practice sanctioned by Article 16, para. 2, of the CDR. The dean traditionally serves as intermediary between the diplomatic corps and the host government in matters of protocol, privileges, and immunities. He distributes communications from the host government addressed to all embassies, and he takes up matters of common concern with the host government. In the latter case he first has to reach agreement with the heads of mission. At posts that have a large diplomatic corp, deans often consult with heads of regional groups. An efficient dean can be helpful to his colleagues. In various countries, for example, the deans have succeeded in persuading host governments to abolish the time consuming practice that all heads of mission show up at the airport when heads of state arrive or depart. The system of the deanship functions even well if the dean represents a country with which other countries represented in the host state have conflicts. Ambassadors are rational enough to appreciate the merits of having a common spokesperson for certain issues. The system even functions when the dean represents a country that is not recognized by most of the other countries represented in the host state. For example, in the mid-1990s, the ambassadors from Palestine were the deans of the diplomatic corps in Lagos and Islamabad and did not have problems fulfilling their functions.

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Some states still accredit chargés d’affaires. Chargé d’affaires belong to the third class of heads of mission and are not accredited to the head of state but to the minister of foreign affairs (Article 14, para. 1, lit. c, of the CDR). They are called chargés d’affaires en pied or en titre because they are permanent heads of mission. In the summer of 2001, Canada accredited a chargé d’affaires en pied in Tripoli (Libya).8 The chargés d’affaires en pied are not to be confused with the chargés d’affaires ad interim who fill in provisionally if the head of mission is absent (Article 19, para. 1, of the CDR). It is a regular practice that the deputy chiefs of mission (DCMs) substitute for their ambassadors when they are away on vacation or have been recalled. It is during this time that an excellent training opportunity for future ambassadors is provided. No state, however, is bound to make the DCM the chargé d’affaires a.i. when the ambassador is absent. States can also delegate another diplomat from their own ministry of foreign affairs or from another embassy. It is important, however, to define when the head of mission “is unable to perform his functions”. Practices differ among states. The United Kingdom and Germany do not appoint a chargé d’affaires when the ambassador is on vacation but remains in the host country. The Members of the Embassy: Their Composition The manifold functions of a present day diplomatic mission make it necessary to distribute the work among a number of people. The sizes of embassies differ. In small embassies one officer has to perform a number of functions. He is, for example, responsible for political work, public relations, and economic questions. In larger embassies, staff members are more specialized. The team of a medium sized embassy is lined up in the following way: One diplomat is the ambassador’s deputy. In the American system the deputy chief of mission serves as the ambassador’s alter ego and, therefore, is often filling in for the ambassador, particularly in managing the embassy.9 The DCM also fills in as chargé d’affaires a.i. in the ambassador’s absence as has been explained previously. In many

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foreign services the position as the ambassador’s deputy is considered as a useful preparation for a future chief of mission. Other diplomats work in the various sections (departments) of the mission. They are responsible for political, economic, commercial, consular, cultural, military, and administrative affairs and for development assistance and public relations. Sometimes only one official works in a section, sometimes two or more officers. All of these officials are diplomats, called “diplomatic agents” by the CDR. Embassies have a supporting staff consisting of home-based members. These embassy members work as secretaries, registrars, finance, security, or communication officers. They perform important functions, because they keep the embassy running. But their functions are not of a diplomatic nature. Therefore, they are not diplomatic agents. The CDR calls them members of the administrative and technical staff. Most diplomatic missions employ locally hired staff, called “service staff” by the CDR. Most of them are nationals of the host country. These are the guards, drivers, messengers, gardeners, handymen, janitors, and cleaners, but also the translators, interpreters, and specialists at the visa counters. They are indispensable because they speak the host country’s language or languages and contribute their local knowledge to the embassy’s work. Homebased staff members come and go, while the locally hired employees provide continuity to the mission’s work. Thus, their importance cannot be overlooked. The Members of the Embassy: Their Size Decisions about the size and the composition of the embassy staff are made at home, that is, by the government of the sending state. Modern government administrations try to match the actual needs of a specific mission with the appropriate numbers of posts. These efforts find their expression in a staff plan, the powerful instrument of rule for all administrative departments of foreign ministries. Since diplomatic missions and their functions have proliferated, the administrative departments of foreign ministries everywhere are

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faced with the problem of how to find the budget for additional staff. These budgetary restrictions sometimes compel governments to close embassies and/or consulates. Denmark, for example, closed ten embassies and consulates at the beginning of 2002.10 The German Foreign Service shrank in the period after unification from approximately 8000 to roughly 6550 members in 2008. In relations between states, the problem is seen from a different perspective. It is recognized that the sending state may freely appoint the staff of its mission (Article 7 of the CDR), meaning that prior agreement of the receiving state is not necessary. The mission is, however, obliged to notify to the ministry of foreign affairs of the receiving state about the appointment of the members of its staff (Article 10 of the CDR). The mission also has to notify the ranking order of its staff (Article 17 of the CDR). These notifications are the basis for the compilation of the diplomatic list of the diplomatic corps by the foreign ministry of the host country. Only the diplomats (diplomatic agents) appear on these lists. The lists are useful because they contain names, addresses, telephone numbers, and often a table of precedence of the heads of missions with the dates of their accreditations. Unfortunately, in some countries, the usefulness of these lists is decreasing because, for security reasons, missions are providing only names and functions. Even though the sending country freely appoints the staff of its mission the receiving state is not without a say in this matter. For example, if a military (defense) attaché is appointed to a diplomatic mission the receiving state can require that his name be submitted beforehand for its approval (Article 7, sentence 2, of the CDR). This exception was originally justified with reference to the fact that military attachés might be engaged in intelligence operations.11 Military officers, however, do not present a greater risk for the receiving state than do diplomats. Some countries, such as the United Kingdom, do not insist that the names of military attachés be submitted beforehand.12 The freedom to appoint the diplomatic staff of a mission is limited by another provision: It extends only to the sending country’s own nationals (Article 8 of the CDR). Since a diplomat

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represents the sending state’s interests, firm ties of loyalty between the representative and the state are indispensable. Therefore, a country’s own national is the natural choice for diplomat. It is rare that nationals of the receiving state are made diplomats of the sending state, but it does occur. This situation, however, is not without problems, as a famous example illustrates: Abraham van Wicquefort, a Dutchman, represented the Duke of Lueneburg in Holland and was jailed for communicating Dutch state secrets; he made use of the time in prison to write the famous manual L’Ambassadeur et ses Fonctions. States are reluctant to extend even the limited diplomatic privileges and immunities of Article 38, para. 1, to their own nationals. Therefore, Article 8, para. 2, of the CDR stipulates that in case a national of the receiving state is made a diplomat of the sending state, the receiving state’s consent is necessary. Germany has given its consent in four cases for a head of mission to be a German national, the sending states, however, saw to it that those heads of mission later gave up their German nationality.13 A final restriction on the sending country’s discretion to organize its diplomatic missions abroad stems from the receiving state’s influence on the size of the mission. According to Article 11 of the CDR the size of a mission must be kept within limits considered by the receiving state “to be reasonable and normal”. However, any effort by the receiving state to cut down the staff of a foreign mission is considered an unfriendly act by the government of the sending state that can then apply reciprocal measures. Therefore, this provision is applied only in cases where tensions between the two states already exist or their emergence is accepted. In 1979, the United States lowered the number of diplomats of the Iranian embassy in Washington to 15 people after the US embassy in Iran had been seized.14 Larger powers like the United States and the United Kingdom used Article 11 to impose ceilings on Soviet missions when they suspected Soviet diplomats to be involved in espionage. For example, the US government expelled 55 Soviet diplomats in 1986; the Soviet government then retaliated.15 The most efficient instrument at hand to reduce the number of

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diplomats is Article 9 of the CDR, which enables the receiving state to declare any member of a mission persona non grata. In this case, it is not necessary to explain the decision, whereas under Article 11 the receiving state has to provide the size of a mission it considers being “reasonable and normal”. During the Cold War, some Eastern European communist countries tried to impose certain restrictions on Western embassies that severely violated the sending country’s discretion to determine the size and composition of its mission. For instance, they did not allow Western countries to hire local embassy staff, instead sending employees of their own choice to work in the embassies. That was, for example, the way in which the Hungarian Diplomatic Liaison Office (DTEI) operated in the 1970s. This practice is a violation of Article 7 that should not be tolerated.16 There is a tendency to blur the difference between diplomats (diplomatic agents) and members of the administrative and technical staff. Many countries try to register the latter as diplomats with the foreign ministry of the receiving country by calling them attachés.17 These countries advance various reasons for such a policy. For example, they argue that the administrative and technical staffs of today fulfill diplomatic functions while purely administrative and technical functions are dealt with by the local staff. This condition may be true in isolated cases. Embassies that try to have their administrative and technical staff registered as diplomats are often governed by the idea of providing more security to their staff, even though the members of the administrative and technical staff also enjoy inviolability (Articles 29, para. 1, and 37, para. 2, of the CDR). Some receiving governments are fighting against the widening of the term “diplomatic agents” by deciding themselves whether to recognize a person duly notified as diplomatic agent.18 Other states accept the notification without questioning them; they do so with a view to the freedom of classification that Article 7 grants the sending state. Staff members of embassies come and go. The foreign ministry of the host country must be kept informed about the changing composition of the diplomatic corps. It must be informed not only

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about the arrival of new members but also about their departure (Article 10, para. 1, lit. a). This information is given by a note verbale that also determines the end of the function of the person mentioned in the note (Article 43, lit. a). There are other events that terminate a diplomat’s function. If a diplomat has officially been called persona non grata and not been withdrawn by his government, the receiving state can notify the embassy that it no longer recognizes the diplomat as a member of the diplomatic mission (Articles 9, para. 2, and 43, lit. b). Also when a state severs diplomatic relations with another state, the basis of the necessary mutual consent for maintaining diplomatic missions lapses. Therefore, the functions of diplomats come to an end. The same happens when the diplomat’s state disappears. When the Republic of Vietnam (South Vietnam) was militarily conquered by North Vietnam in 1976, the diplomats of South Vietnam lost the state that they had represented. However, when Kuwait was conquered by Iraq in 1990 by force, the world community considered the annexation as illegal. As a result Kuwait continued to exist and foreign diplomats in Kuwait did not loose their functions.19 When the States (Länder) of the German Democratic Republic acceded to the Federal Republic of Germany on October 3, 1990, the East German diplomats lost their functions.20 Because the territory of the former GDR had become a part of that of the Federal Republic of Germany, the ambassadors of the latter continued to represent the same state they had represented before unification. They, therefore, did not need fresh credentials. There is a tendency not to issue new credentials if major governmental changes take place in the sending or receiving state. Constitutional changes of the head of state or government do not affect diplomatic relations. In the case of an unconstitutional change the main question is that of recognition of the new government. The new government typically prefers that the sending state maintains its diplomatic mission and diplomats, and it hurries to replace its diplomats abroad with its own loyalists. In the case of a diplomat’s death, the receiving state is obliged to facilitate the withdrawal of the property of the deceased without

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levying duties (Article 39, para. 4). If an ambassador dies abroad, the host country sees to it that the transport of the body is performed in an honorable way. Inviolability of Diplomats Diplomats live in two worlds: They are subject to the municipal law of their own country, and according to Article 41, para. 1, of the CDR, they have to respect the laws and regulations of the host state. They are exempted from laws or law enforcement of the host state only if such exemption is provided for either by the municipal law of the host country or by international law. The most important exemptions are contained in the Vienna Convention on Diplomatic Relations. The CDR mentions privileges and immunities, but the meaning of these two terms is not clear. Satow’s Guide gives useful definitions:21 A privilege is an exemption from laws and regulations, while immunity is a procedural protection from law enforcement. Other authors, however, use the two terms interchangeably.22 Only diplomats (diplomatic agents) enjoy the full extent of privileges and immunities. As a result diplomats have a special status. The status of diplomats is discussed first, followed by a discussion of the protection of the members of the non-diplomatic staff. The special status of diplomats used to be justified by the concept of exterritoriality (extraterritoriality). This concept argued that diplomats and diplomatic missions were outside the territory of the receiving state. However, it was not suited to define the precise range of privileges and immunities and it was too much of a fiction.23 When this term is used now it is only a figure of speech. Diplomats are given a privileged status in order to facilitate their work. They must be free from any sort of harassment so that they can perform their functions in an efficient way. The functions that they perform are not those of a normal alien, but of an official representative of the sending state. The Convention combines the concept of functional needs with that of representation. It states in the Preamble “that the purpose of such privileges and immunities

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is not to benefit individuals but ensure the efficient performance of the functions of diplomatic missions as representing states”. Diplomats need protection. They were harassed in the past, and they continue to be harassed. Harassment became particularly dangerous for diplomats in the second half of the 20th century. The sad list of killed US diplomats speaks for itself: In the period between 1965 and 2007, 90 members of US diplomatic missions were murdered, among them five ambassadors.24 Many diplomats from other countries suffered the same fate. For example, the papal envoy to Burundi, Nuncio Michael Aidan Courtney, was shot dead by unidentified gunmen on December 29, 2003, when he traveled by car through a small town about 30 miles south of Bujumbura.25 In recent years terrorist attacks on diplomats increased. There have been attacks on diplomats for other reasons as well. African ambassadors in Moscow expressed their concern about racially motivated attacks on African diplomats and asked the Russian Foreign Ministry in 2002 to do more to protect their staff and other Africans from attacks. In November 2002, Francis Y. Mahama, ambassador of Ghana, was beaten up by young men when he went for a walk in Victory Park in Moscow.26 There cannot be any doubt that diplomats need protection. In its order of December 15, 1979, in the case concerning United States Diplomatic and Consular Staff in Teheran (United States v. Iran), the International Court of Justice (ICJ) stressed the fundamental importance of a protected status for diplomats by saying the following: “Whereas there is no more fundamental prerequisite for the conduct of relations between States than the inviolability of diplomatic envoys and embassies, so that throughout history nations of all creeds and cultures have observed reciprocal obligations for that purpose; and whereas the obligations thus assumed, notably those for assuring the personal safety of diplomats and their freedom from prosecution, are essential, unqualified, and inherent in their representative character and their diplomatic function”.27 The most important principle that defines the special status of diplomats is that of inviolability. According to Article 29 of the CDR, this principle has two aspects: Diplomats are free from

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coercion by the receiving state, and they enjoy protection by the receiving state. Thus inviolability is partly an immunity and partly a prerogative. Diplomats are not liable “to any form of arrest or detention”. The most serious violation of this principle was committed by the government of Iran in the aforementioned hostage case. On November 4, 1979, several hundred Iranian militants occupied by force the US embassy compound in Teheran, ransacked the building and archives and took the embassy staff hostage.28 The chargé d’affaires and two other diplomats who happened to be at the Iranian foreign ministry at the time of the attack were also detained. The militants demanded that the United States extradite the former shah. The Iranian government did not come to the support of the embassy and the embassy staff. On the contrary, the Iranian government approved the actions of the militants. Of the 66 American hostages 14 were released. The remaining 52 staff members were kept hostage for 440 days. They were only released on January 20, 1981, after two agreements had been signed between the United States and Iran through the mediation of Algeria. The agreements concentrated on returning Iranian assets that had been frozen in the United States and on settling claims of both sides.29 The ICJ condemned this violation of Article 29 of the CDR in no uncertain terms. It called the Iranian authorities’ decision to continue the occupation of the US Embassy by militants and the detention of the embassy staff as hostages “continuing breaches of Article 29”.30 Though the breach of the inviolability of diplomats was universally condemned, the event had negative consequences. It was difficult to accept that the Iranian government got away with such outrageous violations of the basic principle of diplomatic immunities. Iranian students who participated in the assault on the embassy and in its siege even became Iranian ambassadors later. It was sad to watch a powerful country such as the United States be unable to reach a quick release of its embassy staff. The event encouraged individuals, groups, and governments that were not very particular about international law, and it scared diplomats around the world.

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Terrorist attacks on embassies are often deadly and happen rather frequently. The following are some examples: On April 24, 1975, six German terrorists raided the embassy of the Federal Republic of Germany in Stockholm and took the embassy staff hostage.31 When their request to release terrorists from jail in Germany was not met they killed the military attaché and the commercial attaché. It took quite some time until the embassy could be freed. On November 19, 1995, two explosions occurred before the Egyptian Embassy in Islamabad.32 A first explosion was used to destroy the heavy iron gate. Then a pickup truck rolled inside the embassy compound, and a second explosion occurred when the truck was perhaps 25 yards away from the chancery, with the driver still inside the car. The explosion destroyed the front of the chancery building and blew out windows in the neighborhood. Many people were injured and 18 people died, including the guards before the chancery gates and members of the embassy staff. On December 17, 1996, armed Tupa Amaru guerrillas, dressed as waiters, occupied the residence of the Japanese ambassador in Lima, Morihira Aoki, who was hosting a party on the occasion of his country’s national day.33 In the ensuing gun battle with the police, the guerrillas prevailed. The rebels took approximately 600 hostages, among them many diplomats and Peruvian government officials. They demanded the release of their comrades from prison. Some hostages were released immediately, and most of the others were released during negotiations with the Peruvian government, leaving 72 people still held captive. On April 22, 1997, 150 Peruvian soldiers stormed the residence and rescued 71 of the hostages; one hostage and two soldiers died, and the 14 guerrillas were killed in the assault. On September 9, 2004, a car bomb exploded outside the Australian Embassy in Jakarta killing nine Indonesians and wounding more than 180 people.34 The Indonesian police chief blamed an Islamic group for the attack. To grant diplomats inviolability is a reasonable answer to a need. Nevertheless, public opinion sometimes resents the privileged status of diplomats. This dislike has various reasons. Publics often

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cannot understand why diplomats should be allowed to get away with even serious crimes. The misuse of the diplomatic status, particularly with respect to the violation of traffic and parking regulations, has added to the public resentment of diplomatic inviolability. A prominent incident in this context was a shooting from the Libyan embassy (called the Libyan People’s Bureau) in London on April 17, 1984.35 On that day, demonstrators had gathered outside the embassy, and police were present. Shots fired from an embassy window killed a British policewoman and wounded 11 demonstrators. The United Kingdom subsequently severed diplomatic relations with Libya. The staff of the Libyan embassy left on April 27, 1984. Public opinion was particularly upset about the murderer of the policewoman, but under the rules of diplomatic inviolability the murderer of the policewoman could not be brought to justice. Public criticism has contributed to efforts to investigate whether there should be exceptions to the inviolability of diplomats. Are there cases when a diplomat may be subjected to the coercive authority of the host country? In its Teheran hostage decision, the International Court of Justice justified these considerations. The Court said that the observance of the principle of inviolability does not mean “that a diplomatic agent caught in the act of committing an assault or other offences may not on occasion be briefly arrested by the police of the receiving State in order to prevent the commission of the particular crime”.36 In order not to damage the principle of inviolability, which gives diplomats the necessary freedom to perform their functions in a foreign country, exceptions must be restricted to extreme cases. One can agree that the police may disarm a diplomat if his behavior is dangerous to the life and health of third persons. A case cited in that context is the confiscation of the pistol of a Yugoslav ambassador to Sweden by the Swedish police, which found the ambassador lying in a sandpit with the loaded pistol.37 Such cases seldom occur. On March 14, 2002, a US diplomat was arrested in Belgrade by the Serbian military and held incommunicado for 15 hours.38 The arrest occurred in a restaurant where the diplomat had met a deputy prime minister, who was

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arrested together with him. The military agency behind the arrest — the civil government learnt of the incident only later — argued that the diplomat was engaged in espionage. However, this in no way excuses the severe violation of Article 29, sentence 2, of the CDR. Unfortunately, violations of traffic regulations by diplomats occur frequently. In the case of drunk driving, the diplomat poses a danger to life and health of third persons. Therefore, the police are allowed to stop him from continuing to drive. However, it would be going too far if the police were to insist, as the police in Canada and the United States do, that the diplomat be submitted to a breath test. Violations of parking regulations by diplomats happen too often to be overlooked. They occur particularly in the big capitals where parking facilities are limited. In the United States New York and Washington suffer particularly from violations of parking regulations. Both cities loose millions of dollars because many diplomats do not pay their tickets. It is unacceptable that diplomats take recourse to their immunities and do not pay their tickets. Since there is no way to recover the fines by force, the only way out is to declare a diplomat who has frequently violated parking regulations without paying the fines, persona non grata. When the British government did so, the number of parking tickets for cars of foreign diplomatic missions decreased dramatically.39 The second aspect of inviolability is, as mentioned earlier, the receiving country’s obligation to protect the diplomat. According to Article 29, sentence 2, of the CDR the receiving state “shall take all appropriate steps to prevent any attack on his person, freedom or dignity”. Since embassies and diplomats have become targets of attacks many host countries provide guards composed mainly of police officers. Many embassies, however, are reluctant to accept a permanent police presence before their gates, because the receiving state may use its police to observe people entering and exiting the embassy and the residence. In countries where the police are efficient, guards placed before the gates of the embassy and the residence can be useful as a deterrent to attack. In countries where the police are less effective, their presence is not of much help. In any case police can rarely prevent terrorist attacks.

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The key question in the application of Article 29, sentence 2, is how to interpret “all appropriate steps”. An example may illustrate the difficulties. On March 31, 1970, the ambassador of the Federal Republic of Germany to Guatemala, Count von Spreti, was kidnapped by the guerilla organization “Revolutionary Armed Forces”.40 The kidnappers made it known that they would release the ambassador only if the government of Guatemala freed 16 guerrilleros from prison and stopped all actions against the Revolutionary Armed Forces. Later they also asked for a ransom amount of US $700,000. The German government insisted that Guatemala consent to these demands in order to save the life of the ambassador. The government of Guatemala argued that it wanted to follow the rules of its constitution: 15 of the 16 guerrilleros had previously been convicted, and only the Appellate Court or Parliament could remedy the situation by way of an amnesty. On April 5, 1970, the body of the murdered ambassador was found. In the dispute that followed the government of the Federal Republic of Germany was of the view that the government of Guatemala had failed to take all appropriate steps to save the life of the ambassador and had thus violated international law. It severed diplomatic relations with Guatemala. The government of Guatemala, which had expressed its condolences, claimed to have fulfilled its obligations under international law. The reactions of Guatemala’s government have met with some understanding. Not giving in to the demands of the kidnappers, it is argued, has contributed to the discouragement of would-be kidnappers.41 This assumption cannot be proven, however. The Guatemalan government could have done more to save the ambassador’s life. It had earlier declared an emergency that would have made it possible to give in to the demands of the kidnappers without violating its constitution. In fact, this was exactly what it had done a couple of weeks earlier when its own foreign minister was kidnapped. It was fair to expect that the government of Guatemala would have acted at least in the same way when a foreign diplomat had been kidnapped. Diplomats belong to a category of people who are at risk of being attacked. They, therefore, need more than the

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usual protection that a government accords to its own citizens. Only the receiving state can protect the diplomats, because it alone has the authority and jurisdiction to do so. Appropriate steps, therefore, imply “a higher degree of protection”.42 The defiance of many provisions of the Convention on Diplomatic Relations is regrettable, but has made the Convention neither invalid nor unnecessary, just as crimes do not invalidate the rules of criminal law. Rules of criminal law can be enforced by the police, the prosecution and, finally, by the law courts of the country where they have been committed. There is, however, no agency that can really enforce the rules of the CDR. The principle of reciprocity serves as a deterrent, but not always. Therefore, an additional step has been taken to protect diplomats. The UNsponsored Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, was agreed upon on December 15, 1973. The Convention seeks to deter possible perpetrators of diplomatic inviolability by obliging the parties to the Convention to make violations punishable by their municipal law and by encouraging extradition of offenders in specific cases. Whether the Convention of 1973 has contributed to making the life of diplomats safer is doubtful. The government of Iran was definitely not impressed by it. The General Assembly of the United Nations discussed repeatedly violence against diplomats and requested member states to report serious violations to the UN Secretary General.43 Personal Immunities of Diplomats Diplomats enjoy immunity from the criminal jurisdiction of the receiving state (Article 31, para. 1, CDR). This immunity is a corollary of the principle of inviolability. It realizes the principle of inviolability vis-à-vis the judiciary of the host state. This immunity is absolute: A diplomat cannot be prosecuted, indicted, tried, or sentenced.44 Diplomats also enjoy immunity from the civil and administrative jurisdiction of the receiving state (Article 31, para. 1, of the CDR).

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This immunity is, however, not absolute. Article 31, para. 1, makes three exceptions for cases concerning the diplomat’s private life: The diplomat does not enjoy immunity in cases related to his real estate in the receiving state, to succession and to commercial activities in the receiving state. In other words, the diplomat’s immunity for his “official functions” is unlimited, but for his personal functions it is limited in the exceptional cases mentioned in Article 31. The third exception is of no particular importance because commercial activities of diplomats in the host country are prohibited by Article 42 of the CDR. The Convention does not give a precise definition of functional immunity. Article 39, para. 2, of the CDR mentions acts of a diplomat performed “in the exercise of his functions as a member of a mission”. This text leaves open the question of which circumstances a diplomat exercises official functions under. This question is important for determining whether a diplomat’s renting of a house or an apartment in the receiving state for the duration of his term is considered a personal or a functional act. His private residence is the basis for his life, but it also enables him to proceed to his work in the embassy. He settles in the receiving state to do his job. Thus, he rents a home in the first place in order to exercise his official functions and enjoys, therefore, full immunity.45 The exception of lit. a of Article 31, para. 1, of the CDR refers only to actions in rem: to cases concerning ownership or possession of property. The view that a diplomat enjoys immunity from the receiving state’s jurisdiction in cases concerning his rented home is contested, and practices of states differ.46 The granting of immunity to diplomats on matters concerning their rented homes can lead to unwelcome, but unavoidable, results. If a diplomat does not pay his rent, no legal action can be taken against him. The landlord can only ask for intervention from the foreign ministry of the receiving state. Protocol divisions of foreign ministries are often burdened with this type of problem. Since diplomats are sometimes considered to be unreliable tenants, they are often overcharged for rent, sometimes tremendously. These problems can be avoided if the government of the sending

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state provides government-owned or government-rented accommodation (official residences) for its embassy staff in the receiving state. However, even in these cases trouble can occur. The diplomat may not be satisfied with the accommodation allocated to him because it does not meet his needs. Conflicts originating from this situation remain, however, internal to the embassy and have no impact on relations with the receiving state. Whether a diplomat sent abroad will be allocated an official residence or will have to rent a residence on his own depends on the circumstances. Often even the ambassador’s residence has to be rented. Some states, such as Germany, give priority to private renting by staff members.47 Others prefer to provide official residences. Whether a government has official residences at its disposal depends not only on its policy concerning housing, but also on the willingness of the ministry of finance and of parliament to allocate the necessary funds. In the long run, it is generally more economical if the sending state purchases property. This argument, often forwarded by diplomatic missions, is not always heard at home, however. When none of the exceptions of Article 31, para. 1, is applicable, a diplomat’s immunity from civil jurisdiction means total exemption from the host country’s jurisdiction. Therefore, the service of process is unlawful. In order to avoid that situation the court has to examine the question of immunity ex officio.48 If the court has unintentionally started proceedings the defendant will assert his immunity, and the court will turn to the foreign ministry to receive a confirmation of the defendant’s immunity. To testify is everybody’s duty. Witness testimony is part of the process that enables justice to be served. At first glance, it is therefore not convincing that according to Article 31, para. 2, of the CDR diplomats are not obliged to fulfill this duty. However, the exemption from giving evidence can be justified because in many legal systems the appearance of a witness can be enforced, and diplomats are not supposed to be subject to compulsion of the receiving state. If it is considered desirable that a diplomat testifies or that he becomes subject to the criminal or civil jurisdiction of the host

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country, there is a remedy. His immunity can be waived. This cannot be done by the diplomat himself but only by the sending state (Article 32, para. 1, of the CDR), because the diplomat enjoys immunity only to secure his function to represent his state. The waiver of a diplomat’s immunity must be express (Article 32, para. 2, of the CDR). The sending state has to set up procedures on how to declare the waiver. According to the regulations of the United States, the United Kingdom, and Germany, only the home government can make that decision.49 Whether a government issues a waiver or not depends on the circumstances of the case. Governments may hesitate to waive immunities because they are afraid to set a precedence. It is up to the municipal law of the receiving state to decide whether a declaration by the head of mission or his government is necessary. One way out of an embarrassment caused by a diplomat is to recall him. Personal Privileges of Diplomats Diplomats enjoy exemption from three groups of legal obligations: They are exempt from personal services and social security provisions, from various taxes, and from customs. The exemption of diplomats from public services (Article 35 of the CDR) is a corollary of the inviolability of diplomats. It is obvious that compulsory civil duties like military, jury, and emergency services can be imposed only on the host country’s nationals. The regulations of Article 33 of the CDR concerning social security are equally obvious. Diplomats who are regularly home-based are covered by their own country’s social security system. Therefore, they are free from the receiving country’s social security provisions (Article 33, para. 1). They may, however, voluntarily participate in the host country’s system if that is permitted (Article 33, para. 4). The diplomat’s exemption from paying dues and taxes is less clear. It can be argued that diplomats pay taxes at home and that it would amount to double taxation if they had to pay taxes for the same revenues in the receiving state. This line of reasoning can justify their exemption from direct taxes only. The argument can

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be supported by the idea that taxation by the receiving state would enable the receiving state’s tax authorities to check the diplomat’s revenues, which would constitute a violation of diplomatic inviolability.50 The reasoning that sovereign states do not tax each other is not helpful, however. Though the diplomat receives his salary from the state budget, it is transformed into his private income when it is paid to him. Therefore, the principle of state sovereignty cannot be invoked in these cases. The argument of administrative convenience does not help either. It can be advanced for a diplomat’s continued taxation at home as well as for his obligation to pay indirect taxes in the host country. It is, therefore, the better approach to study the casuistry of Article 34 and to consider first those dues and taxes of the receiving country which the diplomat has to pay. That diplomats have to pay “charges levied for specific services rendered” (Article 34, lit. e, of the CDR) is plausible because such charges are paid as a quid pro quo. But it is sometimes questionable whether dues levied are charges or taxes. In 1985, Switzerland introduced stickers (vignettes) that all cars using the highways were required to display. Foreign missions in Switzerland considered this amount paid for the stickers a tax, but the Swiss government viewed it as a payment for the maintenance of the highway system. The same discussion developed when London introduced a congestion charge for traveling within the central and western parts of the city. The charge is supposed to ease traveling and to raise funds. Various embassies in London, among them the American embassy, considered the charge to be a tax and declined to pay the charge.51 Diplomats must also pay the special charges that are levied in connection with real estate transactions, which are enumerated in Article 35, lit. f. As far as a diplomat does not enjoy immunity from civil jurisdiction for personal activities (Article 31, para. 1) he is also not exempt from paying dues, taxes, and duties resulting from these activities (Article 34, lit. b, c and d). And finally, he has to pay indirect taxes that “are normally incorporated into the price of goods or services” (Article 34, lit. a, of the CDR). In this regard,

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however, many countries are generous and grant diplomats also exemption from indirect taxes on the basis of reciprocity. This practice is sanctioned by Article 47, para. 1, of the CDR, which allows states to treat each other more favorably than the Convention requires. For example, in the United States diplomats are exempted from the sales tax, and in Germany they are exempted from the value-added tax. In many other countries, diplomats are permitted to buy specific goods like alcoholic beverages or tobacco products in so-called duty-free shops or can buy gas without paying taxes on it. To reiterate the principle: As far as none of the exceptions of Article 34 from the exemption takes effect, diplomats do not have to pay dues and taxes. This is a considerable pecuniary advantage. The same principle is, to a certain extent, true for duty-free imports permitted by Article 36, para. 1, of the CDR. This exemption is not only one of the “most envied aspects of the diplomatic status” but also the subject of heroic battles between diplomatic missions and foreign ministries.52 It is the battlefield where heads of mission encourage deans to take the lead. Deans and missions fight red tape concerning the release of imported goods, non-tariff barriers, or quotas imposed by the host country. Foreign ministries fight abuses by mission staff members who import goods for nonprivileged persons such as the local staff, members of cultural institutes or aid personnel, or who reap profits from the sale of cars. Article 36 of the CDR tries to find a middle way: It establishes that diplomats enjoy exemptions from customs on articles for personal use, but only within the framework of the laws and regulations that the receiving state imposes. This stipulation remains vague, as it leaves open the question of how far the receiving state can go in imposing restrictions. Even if recourse is taken to limits considered reasonable and normal, which Article 11 mentions in a different context, the range of possible restrictions remains far from clear. One can easily agree that it is reasonable to bar the import of narcotic drugs or firearms and to fix periods of time before cars owned by a diplomat can be sold in the receiving country. But is it reasonable that the United States prohibits the import of Cuban cigars? Is it reasonable that Pakistan fixes a quota

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on the import of alcoholic beverages by diplomats? Which precise quotas are normal? It is, therefore, reasonable to consider once again the Swiss proposal, made during the Vienna conference, to precisely fix an import control regime.53 Unfortunately, the hopes that states might agree on a precise regime are dim. Even though all receiving states are at the same time sending states and should, therefore, share the same interests, a strange split seems to happen instead. As receiving states, countries impose restrictions, but as sending states they — or at least their missions abroad — fight restrictions of the diplomatic privileges. The Protection of the Non-diplomatic Staff As was previously mentioned, the supporting staff is composed of the members of the administrative and technical staff, the service staff, and the private servants. These three groups of the supporting staff enjoy less protection, fewer immunities, and privileges than do the diplomatic agents, in respective decreasing order (Article 37, para. 2, 3, and 4, of the CDR). They are vested with prerogatives only if they are not nationals of, or permanent residents in, the receiving state, that is, if they are home-based nationals of the sending state. There is no real justification for giving the home-based supporting staff of a diplomatic mission fewer privileges and immunities than diplomats. The supporting staff does not have the function of representing the sending state in the meaning of Article 1, lit. a, of the CDR, but without the supporting staff’s work, a diplomatic mission would not function. Sometimes the number of the supporting staff will surpass that of the diplomats. Before the Convention laid down its rules, some larger countries such as the United States, the United Kingdom, and Germany used to accord the same privileges and immunities to all members of a diplomatic mission.54 The first draft for a new regulation tabled during the Vienna Conference suggested the same principle. There was, however, no general support for such a generous solution. Other countries had handled the question of privileges and immunities for

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the non-diplomatic staff in a restrictive way. Thus, the solution of Article 37 of the CDR reflects the result of a compromise reached after controversial discussions. In terms of immunity, the members of the administrative and technical staff are not much worse off than diplomats. According to Article 37, para. 2, they enjoy inviolability, complete immunity from criminal jurisdiction and from testifying as witnesses, and exemption from personal services, social security provisions, and taxes. In two respects, however, their immunities fall short of those of diplomats. Their exemption from civil and administrative jurisdiction does not extend to “acts performed outside the course of their duties” (Article 37, para. 2, sentence 1). Taken the other way around, it means that the immunity covers all acts that are connected with the work within the embassy. The second exception confines their exemption from customs to their first arrival in the receiving state (Article 37, para. 2, sentence 2). Locally hired employees, the service staff, are regularly nationals or permanent residents of the host country. They do not enjoy any privileges or immunities. There are cases, however, when the members of the service staff are also home-based nationals of the sending country. The People’s Republic of China used to send staff for all positions from home; only in the mid-1990s were Chinese embassies allowed to hire local employees, provided they were cheaper than home-based staff members.55 Soviet embassies also used to employ only home-based staff, and the Soviet ambassador’s driver used to be, in many Third World countries, the only nonlocal driver. These home-based members of the service staff are exempt from taxes on their salaries and from the receiving country’s social system. They also enjoy immunity in respect of acts performed in the course of their duty (Article 37, para. 3). Here again, the connection between the act in question and the work of the service staff is the crucial criterion. Private servants of members of a diplomatic mission are at the low end of receiving exemptions. They are exempt from taxes on their salaries only if they are neither nationals nor permanent residents in the receiving state (Article 37, para. 4). In that case

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they are also exempt from the social security provisions of the receiving state provided they are covered by the social security system of another state (Article 33, para. 2). Private servants are, by definition, not members of a diplomatic mission, but are employed by a member of a mission. Thus they are linked to the mission only in an indirect way through their employers. This condition justifies that they be accorded an exemption only from taxes on their salaries. Families When married persons are posted abroad as a member of a diplomatic mission for a longer period of time, it is common that they are accompanied by their spouse and children. Any form of pressure on the members of the family hurts the diplomat directly. Therefore, the Convention on Diplomatic Relations extends the full privileges and immunities of the members of the mission to their families (Article 37, para. 1 and 2). The Convention does not precisely define who is considered to be a member of a diplomat’s family. It mentions only family members “forming part of his household”. In practice, this definition applies to the spouse and children who are minors, still completing their education or unmarried.56 If questions arise whether about other family members, such as a sister or a parent, are to be included, it is generally easy to find a solution. Diplomats are familiar with the difficulties experienced by roving families and do not forget these concerns when they, as members of a foreign ministry, have to decide about these questions. In such a situation international solidarity among the members of foreign services is helpful. Some states have, however, issued definitions of family members. These definitions reveal a trend to include dependants under the family members, as mentioned by Article 37 of the CDR.57 The real difficulties of transferring not only the employee, but also his family to a post abroad, are internal ones of the foreign service. Many foreign services insist that the employee be accompanied by his family because they consider it in the service’s interest.

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In these cases it is stipulated that the foreign ministry and the missions abroad support the members of the family. Such support includes health checks, preparations for the stay abroad, language training, assistance in finding accommodation and in managing moving from one place to another, school and travel allowances, financial support in case of accident, and special assistance for the spouse to find a job abroad and after the return at home.58 All foreign services have to contend with similar difficulties and tend to look for family friendly solutions. In spite of all the support from home, problems remain that cannot be settled easily. Health problems of family members can be a serious difficulty. In such a case, the employee cannot accept a post that poses health problems to the family member or does not have a sufficient health care system. Education is another problem area. Only the larger countries, such as the United States, the United Kingdom, Germany, Japan, and France, have their own schools abroad. But they do not have them everywhere, and not all of them cover education up to high school age. Sometimes diplomats find international schools for their children, but often only local schools are available. Unfortunately, access to these schools is often impossible because of language problems or because the schools are not suitable since their diplomas are not recognized in the student’s home country. Often, the only option is to send the children to a boarding school at home. However, such early separation from the children is not easily accepted by families. The chain of problems regarding the education of children is endless, and diplomats are often confronted with the choice of either following a promising career or showing consideration to their children’s education. The State Department’s Family Liaison Office supports families to make the right decisions.59 Foreign services used to be predominantly male services, but this is slowly changing. In some foreign services the efforts for equal rights for female diplomats have been overtaken by those for “Gender Mainstreaming” meaning a concept that focuses on equal rights for both sexes. Foreign services prefer that the wives of diplomats accompany their husbands to the post because the wives help

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fulfill some of the husband’s obligations voluntarily at no cost. For example, wives run the residences and are in charge of preparations for all the parties given in the residences. They take part in looking after official visitors and delegations. They accompany their husbands to a multitude of social functions, and sometimes, if the husband has another engagement, they are their husband’s best substitute. Many wives of diplomats are committed to social work abroad or support the embassy’s public relations efforts, particularly if they maintain their own contacts. Today, however, it can no longer be taken for granted that wives take on these functions. Many wives follow their own careers. Associations of foreign affairs spouses have been founded in many countries and voice the concern of spouses.60 It remains a tough challenge for personnel departments of foreign ministries to react to the changes that affect society, particularly the family system. The State Department’s family liaison office maintains a list of job opportunities for spouses at most posts. Other foreign ministries, such as those of Brazil, Canada, Chile, Germany, and Spain, conclude agreements with host countries to facilitate the employment of family members of embassy and consulate officials abroad.61 The spouse of employees of international governmental organizations faces the same problems. Therefore, UN bodies recommended a more liberal policy of host countries to IGOs with regard to work permits in favor of the spouses of international civil servants.62

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Chapter 7

Diplomatic Missions: Their Premises

The Base Camp The ambassador and his staff need a place in order to fulfill their functions as diplomats. They need a base camp, an office that is well equipped, so that they can communicate with the host government and with their own government. The building complex where the ambassador and his staff work is also called a diplomatic mission or an embassy. Thus, the terms “diplomatic mission” and “embassy” denote not only a group of people, but also a building complex. Article 1, para. 1, of the CDR gives a definition of the “premises of the mission”, stating that they are “the buildings or parts of buildings and the land ancillary thereto, irrespective of ownership, used for the purposes of the mission including the residence of the head of mission”. In diplomatic colloquial English, the office building of a diplomatic mission is called the chancery. The Convention does not determine where a diplomatic mission has to be located. Since a diplomatic mission is supposed to be the sending country’s official channel of communication to the receiving country, it is practical, and therefore, typical for its seat to be in the host country’s capital. If the host country’s capital is relocated, embassies will follow, and indeed, in a number of cases, countries have moved their capitals. Brazil decided in 1956 to realize an old plan to move the capital from Rio de Janeiro to Brasilia; in 1960, the new capital was inaugurated.1 Pakistan made the decision to move its capital from Karachi to Islamabad at the end of 147

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the 1950s; in the second half of the 1960s people moved to the new capital.2 The intention to move the Nigerian capital from Lagos to Abuja was finalized in 1976; in 1991, the move of the capital became official.3 In 1997, the capital of Kazakhstan was moved from Almaty to Astana.4 Brasilia, Islamabad, and Abuja were newly built cities. Therefore, it was feasible for the host governments to provide plots of land on which foreign governments could build their embassies and residences for their ambassadors. The master plan for Islamabad designated one of the eight building zones as a diplomatic enclave. In these cases the host countries could easily fulfill their obligation, stipulated in Article 21, para. 1, of the CDR, to facilitate the purchase of the necessary premises. When the German capital was moved to Berlin in 1999, on the other hand, it was far more difficult for foreign missions to find accommodation, because the new capital was an old and large city with a limited, and therefore, expensive real estate market. If, in such a situation, the host government is unable to facilitate the acquisition of accommodation by foreign missions, it does not violate its obligations under Article 21, para. 1. Whenever new embassy buildings are set up, funding is crucial. In most countries, this means the involvement of the parliament. The appropriation process is slow, with the result that a time lag occurs between the relocation of the host government and that of foreign embassies. Even after the appropriation process is finished, it may take many years until the new embassy building is ready for occupancy. For example, it took about 12 years until the new building of the US embassy in Berlin could be inaugurated on July 4, 2008. The American diplomats in Berlin can be proud to work in a building adjacent to gate Brandenburg at the exact spot where their predecessors worked before World War II.5 The architecture of embassy buildings is often disappointing; they are often plain, simple, and uninspired office buildings. Exceptions such as the US embassies in Paris and in New Delhi confirm the rule. Countries that can afford it sometimes try to create something special, buildings that stand out and transport a message. Jane C. Loeffler illustrated how difficult this is in her book on the history of the US embassy-building program.6 Often, it

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was close to impossible for the various agencies involved to reach agreement about how to represent the United States properly. Architects have tried hard to make embassy buildings symbols of their countries. However, tastes differ. Thus the messages in stone, steel, and glass are not generally accepted. One can, therefore, empathize with the Queen of England when upon inaugurating the new British embassy in Berlin in the summer of 2000 she expressed her disappointment by saying, “I understand that some people like it”.7 Inviolability of Premises Diplomats do a lot of their work at the embassy. It must be guaranteed that they can do this without being disturbed or harassed by influences from outside. Therefore, Article 22, para. 1, of the CDR declares the premises of the mission inviolable. Also inviolable are the residence of the head of mission (Article 1, lit. i) and the private residences of diplomatic agents (Article 30, para. 1, of the CDR). Just as in the case of personal inviolability of diplomats (Article 29 of the CDR) the inviolability of the premises has two aspects. Embassy premises must be free from interference and have to be protected by the host country. Also in this case, inviolability is partly an immunity and partly a prerogative. The most important part of this immunity is the prohibition for agents of the receiving state to enter the premises of the diplomatic mission without the consent of the head of the mission (Article 22, para. 1, sentence 2, of the CDR). Article 31 of the Convention on Consular Relations and Article 25 of the Convention on Special Missions provide an exception to the inviolability of consular and special mission premises by stipulating that the consent of the side of the mission may be assumed “in case of fire or other disaster requiring prompt protective action”. Since this exception is missing in the Convention on Diplomatic Relations, the prohibition on entering the premises of diplomatic missions is absolute. It is up to the head of mission to decide whether he will try to cope with the emergency by the embassy’s own means or whether he will call in

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help from the receiving state. In case of a fire, there is often no choice but to allow firefighters into the embassy building. In the building of the US embassy in Moscow, fire has broken out on various occasions. A fire caused by welding sparks on March 28, 1991 was so severe that 180 Soviet firefighters were rushed to the scene. In such a situation one may worry that the firefighters will misuse the situation and try to seize important documents and equipment of the embassy. According to an embassy spokesman “Marine guards accompanied the firefighters to some areas”.8 When, in August 2002, five men occupied the Iraqi Embassy in Berlin, the German police stormed the building only after Baghdad had granted permission.9 In a number of cases, diplomatic missions have been entered without the necessary consent of the head of mission. Some of these cases were spectacular. As has already been mentioned, in November 1979, Iranian militants occupied the US embassy in Teheran, ransacked the building and its archives and took the embassy staff hostage. From the moment the Iranian government approved the actions, they became imputable to the Iranian state.10 A peculiar case occurred in Panama. On December 29, 1989, the residence of the Nicaraguan ambassador to Panama, Antenor Ferrey, was searched, not by Panamanian authorities, but by US soldiers.11 Some days earlier US troops had invaded Panama in order to topple and seize the dictator Manuel Antonio Noriega, who was wanted in the United States on drug trafficking charges. In spite of the Nicaraguan ambassador’s protest the US soldiers, who entered his residence forcibly, searched the premises for weapons and made a strike. They apparently found a large quantity of various types of weapons. This find, however, did not justify the disregard of the inviolability of the residence, and President Bush offered a partial apology by calling the event a “screw-up”.12 After Iraq invaded Kuwait at the beginning of August 1990, the Iraqi government insisted that foreign embassies in Kuwait be closed and their staff removed. In mid-September 1990, Iraqi military forces entered the residences of the Canadian and French ambassadors as well as the Belgian and Dutch embassies in Kuwait

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City. Since the use of force by Iraq was not justified, the annexation of Kuwait was unlawful.13 Kuwait continued to exist as a state, and therefore, foreign countries had the right to maintain diplomatic missions in Kuwait. All these cases were considered breaches of Article 22, para. 1, of the CDR. In its judgment in the “United States Diplomatic and Consular Staff in Teheran” case, the International Court of Justice stated on May 24, 1980 that the Iranian government’s decision to continue the occupation of the US embassy by militants constituted a breach of Article 21, para. 1.14 In the case of the search of the Nicaraguan residence in Panama a UN Security Council resolution that condemned the search foundered on the lack of an affirmative vote from the United States alone. The raids of the diplomatic missions in Kuwait by Iraq were condemned by the UN Security Council.15 No practice has been established and recognized to allow exceptions to the prohibition of entering the premises of a diplomatic mission without the consent of the head of mission. Nevertheless, it is discussed whether there is a need not to completely exclude a right of the receiving state to enter the premises of a diplomatic mission forcibly, in extreme cases.16 The need to protect human life and a general state of necessity are mentioned as justifications for violating the absolute prohibition stipulated in Article 22, para. 1. In such a case, however, the right to make the decision of whether the premises of an embassy can be entered is shifted from the head of mission to the authorities of the receiving state. That is exactly what Article 22, para. 1, of the CDR aims to prevent. Therefore, international practice should follow the exemplary attitude of the British government in the Libyan embassy case discussed in Chapter 6. In that case, though there was a great excitement because a British policewoman had been killed by a shot fired from a window of the Libyan embassy in London, British police officers entered the embassy building for the first time only after diplomatic relations with Libya had been severed and the embassy building had been vacated.17 At that point, the building was no longer that of a

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diplomatic mission, and the duty of the United Kingdom was reduced to “respect and protect the premises of the mission” (Article 45, lit. b, of the CDR). Bugging Embassies have become subjected to a more modern type of harassment: Some receiving states try to install listening devices in embassy buildings of sending states. Since these efforts are secret, not many details about them are known. Isolated cases, however, have turned up. The best-known case is the bugging of the new building of the US embassy in Moscow during the Cold War. The history of the construction of that new building is an amazing saga. In 1972, the United States and the Soviet government agreed that new embassy buildings would be constructed in Moscow and Washington.18 In the years that followed, however, no agreements on the details of the projects could be reached. After President Jimmy Carter and President Leonid Brezshnev finally gave the projects the green light, contracts were signed in 1979. When the construction work in Moscow started much of it was done by Soviet companies and workers. The spring of 1983 brought the first indications that something was wrong with the building. When the Americans brought in an X-ray machine to check for listening devices, the Soviet crew walked out, citing dangers to its members’ health caused from the machine. Two weeks later the construction was continued. In September 1986, it became known that a huge number of listening devices had been planted in the eight-story building. Later, more bugging devices were discovered. In June 1987, the building was said to be “massively honeycombed”.19 At that time, the construction was already five years behind schedule. In 1987, an epic discussion on how to proceed began.20 It was proposed that the building either be salvaged or torn down and the project started over again. On October 28, 1988, President Ronald Reagan decided to raze the building. In the search for a culprit, much blame was put on Arthur Hartmann, US ambassador to the

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Soviet Union from 1982 to 1987, who had advised only to reduce, but not to eliminate, the embassy’s Soviet employees. In 1985, work on the new US embassy building was halted. Meanwhile, the new building of the Soviet embassy in Washington had been finished. The Soviet staff, however, could not move in because the two countries had agreed in 1972 that the buildings in Moscow and Washington were to be occupied simultaneously. Both sides filed claims against each other. Other surprising events followed. In 1989, a US trade group offered to buy the unfinished building.21 This plan, however, did not proceed. In December 1991, the chief of the KGB, Vadim Bakatin, handed US ambassador Robert Strauss plans and instruments used in installing the listening devices and suggested that Washington could save money by not building a new chancery. One can certainly empathize with the ambassador when he said, “This is the most amazing thing that’s happened to me in my life”.22 President Reagan’s plan to raze the building and erect a new one could not be realized because this process would have been too expensive. Finally, during the Clinton administration, a compromise was found. The two upper floors were torn down and four new floors added, built by American construction workers and American construction material brought in from the United States.23 On June 4, 2000, 28 years after the first bilateral agreement on the construction, Secretary of State Madeleine Albright officially inaugurated the US embassy building in Moscow.24 In the Soviet–US “bugging battle”, the United States was by no means on the suffering side only. According to Soviet Ambassador Dobrynin the Soviets found more than 200 listening devices when their embassy complex in Washington was finished in 1979.25 US intelligence went one step further: In order to fix bugging installations, a secret tunnel was dug, running from a residential area beneath the embassy complex.26 The construction was probably done in the 1980s. The clandestine operation was brought to light in connection with the Hanssen spy scandal, in which Robert Hanssen, a FBI agent, was accused of having betrayed the operation to the Soviet (Russian) side.

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Governments continue to worry that their embassies are bugged. For example, in May 1995, the Chinese ambassador in Canberra expressed concern that Australian authorities bugged his embassy.27 In January 2004, the Pakistani government raised the issue of alleged bugging of its embassy in London with the British government.28 In July 2004, the Indonesian government summoned Myanmar’s ambassador in Jakarta confronting him with strong indications that the Indonesian embassy in Yangon (Rangoon) was bugged.29 US government officials have estimated that the tunnel project cost “several hundred million dollars”.30 Thus, the question of whether the results justified the cost, time, and energy cannot be ignored. The bugging of embassies illustrates that embassies are not useless, as they have been sometimes called. The bugging of a foreign embassy is only a first step. The results of eavesdropping on electronic communications, the signals picked up from computers or coding machines, have to be processed. The texts and taped conversations have to be translated. Finally, experts have to assess which parts of this immense material are relevant. The whole process involves huge human resources and is lengthy. Important material can be found only if the embassy has it. This is seldom the case. Eavesdroppers will not find a battle plan within an embassy. For example, assuming that US intelligence had bugged the Soviet embassy in Washington in 1962 they would not have found any hint that the Soviet Union was stationing medium range nuclear missiles in Cuba, because the embassy, as Ambassador Dobrynin has convincingly demonstrated, was not aware of that development.31 However, intelligence agencies may find information on tactics. They may find out, for example, how far the other side is willing to move in negotiations or may uncover details about the spying activities of the other side. Thus, the question remains as to whether the bugging of embassies deserves the huge expenditures required for its realization. In any case the installing of listening devices in embassies is unlawful. The receiving country doing so breaks the rule of inviolability that embassies enjoy according to Article 22, para. 1, of the CDR.

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As the example of the US embassy in Moscow and the Soviet (Russian) Embassy in Washington shows it is difficult to prevent embassies from being bugged. However, some countries found a way out of this dilemma. They have installed in some of their embassies special secure cells or rooms.32 Such a cell can be used for discussions that are of a confidential or secret character. Other Immunities and Obligations Part of the inviolability of a mission’s premises is its immunity from search, requisition, attachment, or execution (Article 22, para. 3, of the CDR). In other words, an embassy is free from the explicitly mentioned coercive legal measures of the host country. How far a sending state is otherwise free from the jurisdiction of the receiving state depends on how extensive or restrictive the interpretation of state immunity is. Immunities are granted to ensure that an embassy can efficiently perform its functions. Therefore, the inviolability of a diplomatic mission’s premises extends only so far as it grants the “protection to the exercise of diplomatic functions”.33 Embassy cars enjoy the limited immunities from the coercive measures listed in Article 22, para. 3. It may be a rare event that a bailiff tries to put an attachment to a duty car of an embassy, but the towing of embassy cars happens frequently, particularly in congested capitals. In order not to come too close to interference with the embassy’s functions towing of embassy cars should be restricted to cases of emergency. The inviolability of the premises of a diplomatic mission (Article 22, para. 1, of the CDR) finds its counterpart in the prohibition on misusing a mission’s premises (Article 41, para. 3, of the CDR). Cases in which the premises of a mission are used “in a manner incompatible with the function of the mission” occur, albeit infrequently. Misuse occurs when a criminal or a hostage is held, when private business is accommodated, when arms are stored within the premises of a diplomatic mission or when shots are fired from the premises. A particularly serious misuse by the Iraq

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embassy in Islamabad was discovered by the Pakistani authorities in 1973.34 When Pakistan’s customs authorities detected that a crate addressed to the Iraqi embassy was filled with arms, the Pakistani government asked the Iraqi ambassador to allow Pakistani police officers to search the embassy. After this request had been rejected Pakistani police officers stormed the embassy and found a huge supply of arms and ammunition, apparently destined for rebels in Baluchistan. The Pakistani government declared the Iraqi ambassador persona non grata and recalled its own ambassador from Iraq. Later, normal relations were restored. There was no doubt that the Iraqi embassy in Islamabad had seriously violated the prohibition on misusing its premises. This explains, but does not justify the infringement of the embassy’s inviolability by the Pakistani government. This is a unique case. No generally accepted international practice concerning a violation of the obligation under Article 41, para. 3, of the CDR has been developed to give the receiving country a justification to disregard the absolute inviolability of a diplomatic mission.35 Protection of the Premises When an ambassador receives information that a crowd has arrived before the embassy gates or is moving toward the embassy in order to demonstrate and protest, he may face a difficult time. In such a case, he will instruct the guards at the embassy to close the gates. If the embassy has its own home-based security staff, he will give those staff members instructions to guard the strategically important positions of the compound. He will also inform the ministry of foreign affairs of the host country of the situation and ask for additional protective measures. Demonstrations in front of embassies occur frequently. The aims pursued by the demonstrators differ, as do the forms of protest. If the protesters want to deliver a petition, the ambassador may ask one of the members of his diplomatic staff to receive the document. If the protesters insist on seeing the ambassador, he will receive them provided he feels that this gesture will serve to bring the demonstration to an end.

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When large crowds approach an embassy, nobody knows for sure what may happen. Large agitated crowds are unpredictable. They may just voice their protest and burn the flag of the state against which they are protesting or an image of a leading statesman of that country, in effigy. If they attack the embassy itself, the ambassador can feel safe only if the host country’s police are reliable, efficient, and ready to intervene. In far too many countries, however, this is not the case. In some cases, the government of the host country may even sympathize with the issues voiced by the crowd or, worse, may have instigated them. Even if the ambassador disposes of his own security officers, defense may be hopeless, as the attack on the US embassy in Teheran in November 1979 demonstrated. The United States has tried to threaten governments that do not protect US diplomatic missions with sanctions. One must, however, assume that such a threat deters neither a mob nor a weak foreign government. An example of how an ambassador reacts in such a situation can be found in the events that occurred in Jakarta after the tragedy of the terrorist attacks perpetrated on the United States in New York and Washington on September 11, 2001.36 When some Indonesians tried to justify the attack on the United States, Robert S. Gelbard, US ambassador to Indonesia at the time, wrote a letter to the Jakarta Post in which he made it clear that the US government was not blaming Muslims for the terrorist acts, but was trying to bring the offenders to justice. This letter was published by the newspaper on September 15, 2001. The ambassador also saw to it that the US embassy was tightly guarded. When, in spite of his efforts, a large group of students demonstrated before the US embassy on September 21, 2001, the ambassador visited the police headquarters in Jakarta and asked for a guarantee of the safety of US citizens, assets, and facilities. The protection was urgent, since a number of Islamic groups had made threats against Americans and their facilities. The police officials assured Ambassador Gelbard that they would comply with his request. On September 28, 2001, hundreds of demonstrators gathered before the US embassy’s gates and burned American flags as well as an

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effigy of President George W. Bush. One banner read, “The real terrorists are the US and Israel”. The ambassador criticized the Indonesian security forces for not moving against the militants, and the non-essential members of the embassy staff left Indonesia. The attitudes of members of the Indonesian government were contradictory and thus not reassuring. When President Megawati Sukarnoputri paid a visit to Washington she told President Bush that Indonesia condemned the attacks on the United States. Vice President Hamzah Haz, on the other hand, had allegedly said that the terrorist attacks could help the United States to “cleanse it sins”.37 After the United States started bombing targets in Afghanistan angry protesters in front of the US embassy in Jakarta were dispersed only when tear gas was fired by Indonesian riot police. The attacks on embassy buildings are often deadly. On August 7, 1998, two bombs exploded nearly simultaneously outside the US embassies in Nairobi and Dar es Salaam, causing huge damage.38 In Nairobi, a pickup truck with a bomb had been driven near the ramp leading to the embassy’s underground garage. A man who had come along in the pickup truck threw a grenade-like device at the embassy’s guard. A tremendous blast followed, destroying the rear half of the embassy building and a neighboring three-story building. Twelve American and 27 Kenyan members of the embassy staff died, more than 200 Kenyans on the streets and in the neighboring building were killed, and more than 1000 people were injured. Ambassador Prudence Bushnell, who was meeting with a Kenyan minister in an adjacent building, was thrown to the floor by the explosion and suffered cuts from falling glass. In Dar es Salaam a bomb planted in a gasoline tank detonated near the Embassy’s front entrance. The building was damaged, 11 Tanzanians were killed and eighty people were wounded. The US government responded by striking terrorist training camps in Afghanistan and a chemical weapons factory in Sudan, justifying these attacks as self-defense according to Article 51 of the UN Charter.39 On October 18, 2001, four of the terrorists involved in the attacks against the embassies in Nairobi and Dar es Salaam were sentenced to life in prison by a judge in New York.40 This event

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is remarkable because it is one of the rare cases in which culprits who have committed crimes against diplomats and diplomatic missions have been brought to justice. The Iranian government demonstrated a different attitude. On the occasion of the 22nd anniversary of the raid of November 1979, it opened the compound of the US embassy in Teheran to the public for the first time, using the anniversary as an occasion for anti-American propaganda.41 It is regrettable that a severe violation of the law of legation was celebrated years later. Attacks on embassies continued. In September 2006, militants attempted to storm the US embassy in Damascus.42 They were equipped with automatic rifles, hand grenades, and one van full of explosives. Syrian security agents repelled the attack and the assailants failed to enter the embassy compound. Three of them and one Syrian security officer died during the fighting. On January 12, 2007, a rocket was fired against the US embassy building in Athens.43 The rocket hit the building but caused no injuries. After Chinese security forces clashed repeatedly with Tibetans in the spring of 2008, Chinese embassies and consulates were attacked, for example the Chinese embassy in Washington. China asked the American authorities to provide protection for its and consulates in the United States.44 At the beginning of June 2008, a car bomb exploded outside the Danish embassy in Islamabad, killing and wounding a number of people, among them security staff of the embassy, and damaging the exterior of the building.45 Diplomatic missions are often attacked precisely because they represent their countries in the receiving state. Therefore, they do need protection. Since the receiving state alone has jurisdiction within its territory, it alone can provide protection that includes the use of force if necessary. Consequently, Article 22, para. 2, makes the protection of the premises of foreign missions a “special duty” of the receiving state. Missions are to be protected against “intrusion or damage”. Receiving states usually discharge the duty through their police forces. In many countries, policemen guard chanceries and ambassadors’ residences. How well they perform their function depends on their efficiency and the willingness of the

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receiving state’s government to fulfill its obligation. Sometimes, the police are unable to cope with intruders. In such cases, the military is brought into action, as was done in the case mentioned above when Peruvian military freed the Japanese ambassador’s residence in Lima on April 22, 1997. The receiving state is obliged to take “all appropriate steps” to protect foreign missions and residences. That means it has to do everything within its power.46 It must also try to prevent missions from suffering ordinary criminal infringements. If a government does not do everything within its power in the case of an attack or intrusion into an embassy, the chancery may suffer damage and the embassy staff harm. In such a situation efforts must focus on restoring the mission’s ability to fulfill its functions. Intruders must be driven out, and the building must be repaired, and made more secure and better guarded. Of secondary importance is the question of reparations to be paid by the receiving state to the sending state. If the receiving state has not fulfilled its duty under Article 22, para. 2, of the CDR it is obliged to pay reparations. In the United States Diplomatic Staff in Teheran Judgment the ICJ decided that the breaches of international law committed by Iran obliged that country “to make reparation for the injury thereby caused to the United States”.47 In this case the breach of the obligation of Article 22, para. 2, was obvious. In other cases, it may be unclear whether the receiving state did everything in its power to protect the sending state’s mission. In order to avoid unpleasant controversies some states such as Germany, the United Kingdom, and the United States pay reparations on an ex gratia basis when mission buildings have been damaged by attacks.48 An ex gratia payment implies that reparations have been made without recognizing a legally binding obligation. Article 22, para. 2, of the CDR obliges the receiving state also “to prevent any disturbances of the peace of the mission or impairment of its dignity”. This prohibition includes the harassment of a mission by unacceptable noise levels. Democratic countries have difficulties balancing their duty to the secure peace and dignity of

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a mission with the fundamental rights of their constitutions such as the freedom of opinion and of assembly. Since, in a case of a conflict between the obligation of international law and the rights and obligations of constitutional law, the former overrides the latter, it should not be too difficult for governments to find solutions that “ensure the efficient performance of the diplomatic missions as representing States” (Preamble of the CDR). The space around a foreign mission does not belong to its premises, but needs special treatment by the receiving states because it is the area from where the peace of the mission can be disturbed. Some countries have not been shy in prohibiting demonstrations in areas around the seats of their parliament or main government buildings. They could treat foreign missions similarly. Some wise remarks by the US Court of Appeals, District of Columbia Circuit, can serve as guidelines. The Court had to decide about the constitutionality of a statute prohibiting the display of hostile signs and demonstrations within a 500-foot buffer zone around foreign embassies in Washington, DC. In its decision of August 19, 1986, the Court held that the statute was constitutional, since it struck a balance between the international obligations of the United States and the First Amendment. The Court viewed the statute as imposing “only a very minor geographic limitation on speech” and stated, “It does not eliminate any point of view from our political discourse, but sets aside the space immediately surrounding foreign embassies as an area free from hostile protest”.49 It would contribute to the upholding of the peace and dignity of diplomatic missions if international practice followed this concept. Since receiving states cannot always ensure the complete protection of diplomatic chanceries and residences, sending states have begun to introduce security measures for their property abroad. In many countries the chanceries are surrounded by high, massive walls that have barbed wire on top. Perimeter defenses include concrete roadblocks. Access to the chanceries has been limited to only a couple of visitors at a time, whose identity is checked. In some countries visitors to an embassy are subjected to an additional check by metal detectors. Embassy entrances are often organized

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in a way that visitors have to pass through two doors. The second door can be opened only after the first one has been closed, giving the embassy’s doorman a last chance to check the identity of the visitor. For important rooms, shatterproof windows and steel doors are used. In many countries ambassadors and their staff travel in armored vehicles. In order to prevent a rush of many visitors to the embassy’s gate, many countries prefer to have their mission accommodated on the upper floors of a large building. For these embassies visitors arrive only via elevators or stairs thereby limiting the number of people who can arrive at the same time. Sections of embassies that have many visitors, such as visa sections, are often located in separate buildings. Visitors typically have to wait outside the embassy, before gaining admission. The embassy’s parking lot can often be used only by embassy staff. If new embassies are built they are frequently set back from the surrounding roads and buildings, and the approach is made difficult by concrete barricades, many feet back from roads. Since it is too costly to take the same precautionary measures for the residences of the ambassadors, a safe haven inside with shatterproof windows and steel doors may be set up. In the 1980s, an advisory panel on overseas security under the chairmanship of Admiral Bobby R. Inman, the former head of the National Security Agency, was set up to investigate the security of US facilities abroad. In June 1985, the panel published its report, the so-called Inman Report, which discussed a wide set of issues, particularly organizational ones, pertaining to the security of US missions.50 The report insisted that location of a mission building is crucial to avoiding an assault or penetration. Therefore, it suggested replacing or relocating 126 of the 262 facilities of the Department of State abroad to more secure sites. Progress, however, was slow. After the 1998 bombings of the US embassies in Nairobi and Dar es Salaam the construction of new facilities accelerated considerably.51 States that can afford it have increasingly sent police officers or military officers to guard their embassies and residences abroad.

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For example, members from the US Marine Corps guard US missions, officers from the Federal Police (Bundespolizei) guard German missions, and members of the Gendarmerie Nationale protect French missions. Since these home-based security forces have no jurisdiction in foreign countries, they can take care only of the security inside the premises. Many countries hire local guards provided by local companies. Before the attack on the US embassy in Nairobi 540 local guards were providing security for the chancery and the 180 residences. The guards were paid US$83 a month, not really an encouraging amount.52 Safety measures are costly, and funds are usually limited. Priorities have to be set up for which the available funds will be spent on. Unfortunately, the requests of heads of missions are not always heard. Prudence Bushnell, US ambassador to Kenya, had twice complained to the State Department about the security deficiencies of the embassy building in Nairobi and suggested constructing a new building outside the city center.53 The State Department did not accept her proposals. A retired US diplomat was so disgusted that he wrote the following: “It is bitterly amusing that the only time Foreign Service personnel are noticed by the American public and Congress is when we are murdered or held hostage. Otherwise, we have no constituency and are a safe target for ridicule or attack”.54 Embassies surrounded by high walls and barbed wire and protected by guards with machine guns and armored vehicles do not offer a particularly pleasant view. When, as in the case of new US embassy buildings, window space is limited to 15% of the wall surface the building often looks like a bunker. Michael J. Lewis has described the new US embassy in Nairobi as such a building.55 Thomas L. Friedman compared the US consulate general in Istanbul with Fort Knox.56 People will get accustomed to fortified embassies. Another aspect, however, is more troubling. Embassies are supposed to be a channel for communication and should, therefore, be open for contacts and visitors. In a fortress-like chancery it is the task of the head of mission to see to it that his staff does not acquire a fortress mentality.

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Archives and Documents Bilateral diplomacy is a continuous effort. It is a consistent operation only if records are available that reflect the history of the embassy’s many activities. Until the end of the 20th century documents made up the bulk of an embassy’s records. The age of the information technology brought along a new form of keeping records, namely saving them on electronic media (data carriers). E-diplomacy needs e-archives. Therefore, foreign ministries work on solutions to substitute the traditional filing of paper documents by filing e-documents as far as possible. A central registry of files in the foreign ministry is desirable because it can offer access to everybody who is permitted to use it. This situation demands rules about access to the files. The Canadian Department of Foreign Affairs and International Trade requested that the official who filed the document attached access rights to each document that he filed.57 Article 24 of the CDR declares the “archives and documents of the mission” inviolable. The CDR does not define the terms “archives” and “documents”. The Vienna Convention on Consular Relations does so by stating that archives and documents include “all the papers, documents, books, films, tapes and registers of the consular post, together with the ciphers and codes, the card-indices and any article of furniture intended for their protection or safekeeping”. This definition can be applied mutatis mutandis to the archives and documents of a diplomatic mission. Though not mentioned, e-archives are to be included, because it is the purpose of Article 24 to protect all information stored by the embassy. An embassy’s documents include correspondence with the government of the host country, instructions from the home government, the embassy’s reports and correspondence with nationals of the home and host countries. All of these records constitute the basis and the results of the embassy’s work and enjoy, therefore, a confidential character, though of varying degrees. All documents located in the embassy are covered by the inviolability of the premises of the mission, stipulated by Article 22,

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para. 1, of the CDR. Nevertheless, the Convention declared the inviolability of the “archives and documents” in a separate article, namely Article 24. Correspondence that is addressed to an embassy, but has not yet arrived, also enjoys inviolability according to Article 27, para. 2, of the CDR. The protection that the Convention grants the archives and documents is a wide one. It is valid “at any time and wherever they may be”. Thus, even after diplomatic relations have been severed the archives continue to be inviolable. Since the embassy’s documents are protected “wherever they may be”, they are also inviolable when they are outside the premises of the mission. Governments try to prevent, through strict rules, the removal of official documents, particularly those of a high degree of confidentiality, from the chancery. This removal of official documents is, however, sometimes unavoidable. When a diplomat, for example, has to attend meetings or a conference, he may have to bring along documents. If, in such a case, the documents get lost and are found by an agent of the host country, they have to be returned. The absolute protection of the archives and documents of a diplomatic mission reflects the fact that they are owned by the sending state. The occupation of the US embassy in Teheran by militants, with the later approval of the Iranian government, has been the worst violation of Article 24 of the CDR so far. According to the judgment of the ICJ, the embassy’s archives and documents were ransacked and partly made public by the militants and government authorities.58 The ICJ condemned this violation of Article 24 of the CDR.

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Chapter 8

Diplomatic Asylum

Concept and Practice Asylum as a general term denotes a refuge granted to an alien by a state on its own territory. This type of asylum is, therefore, called “territorial asylum”. The meaning of the term “diplomatic asylum” differs from this general definition. Diplomatic asylum denotes a refuge granted to a political offender or a person qualifying as a political persecutee in a diplomatic or consular mission.1 Diplomatic asylum is an issue where legal systems and state practices diverge. Diplomatic asylum is recognized as a right by various international treaties concluded by Latin American countries, and is practiced by Latin American countries, though not always in a consistent way. The right of diplomatic asylum is always considered a right of states, not of individuals. Most countries, particularly the United States and European states, do not recognize a right to grant diplomatic asylum and insist that customary international law does not contain such a rule. Even these states, however, grant diplomatic asylum in extreme cases. When they do so, the protection of the asylee flows from the inviolability of the premises of a mission, stipulated by Article 22, para. 1, of the CDR. In nearly all past cases the inviolability of the premises of the mission was respected by the receiving state.2 There is indeed agreement that customary international law does not recognize a right of states to grant diplomatic asylum.3 167

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Such a right could not develop because there is no general practice of states in this regard. Even when the United States and European countries have occasionally granted diplomatic asylum, they have insisted that they do not subscribe to the doctrine of diplomatic asylum. The government of the United States has followed a consistent policy in granting diplomatic asylum. This policy has been laid down in the Foreign Affairs Manual: The United States does not grant asylum at its embassies but is willing to grant temporary refuge for humanitarian reasons “in extreme or exceptional circumstances when the life or safety of a person is put in immediate danger, such as pursuit by a mob”.4 An official of the State Department during hearings of a committee meeting of the House of Representatives on April 29, 1980 summarized this policy.5 Germany shares the American position.6 German missions can grant temporary refuge (zeitweilige Zuflucht) only in cases of danger to life and limb of a person. Individuals who are not in danger but have taken shelter in a mission have to be turned over to the competent authorities of the receiving country upon demand. France does not recognize a right to grant asylum in its embassies, with the exception of its embassies in Latin America.7 It comes, therefore, as no surprise that the United States and Germany declined to grant diplomatic asylum to the so-called Durban Six in South Africa.8 In October 1984, six opposition leaders who were sought by the South African police and had found temporary shelter in the British consulate in Durban asked for sanctuary in the US, German, French and Dutch embassies in Pretoria. The French and the Dutch governments joined the American and German governments in denying the request. Numerous other Western countries reject the doctrine of diplomatic asylum as well. In October 1996, the Swiss government informed parliament that Swiss missions cannot grant diplomatic asylum and that “Switzerland opposes also the granting of asylum by foreign embassies accredited in Bern”.9 In 1993, Sweden and Finland declined to grant diplomatic asylum to seven East Timorese who had occupied their embassies in Jakarta.10

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The US embassy in London states on its web site the position of the US government on diplomatic asylum: “The United States does not grant asylum in its diplomatic premises abroad. Under US law, the United States grants asylum only to aliens who are physically present in the United States”.11 It is exceptional for a country to publicize its attitude towards diplomatic asylum. Governments generally prefer to send internal instructions to their missions. Embassies and consulates of countries that do not recognize a right of asylum are regularly reminded by their foreign ministries that they are not authorized to grant asylum on their premises. In the aforementioned case of the Durban Six, the British consulate in Durban quickly got rid of its guests. After the six opposition leaders had sought refuge in the British consulate in the middle of September 1984, the British government decided not to grant them indefinite shelter.12 The consulate informed them that the British government would not intervene on their behalf with the South African government and that they could not count on an indefinite stay in the consulate. In October of the same year, the political leaders left the consulate. The South African authorities immediately arrested all but one of the individuals. On March 29, 2002, Galymzhan Zhakiyanov, a Kazakh opposition leader, took shelter in the French embassy in Almaty because he faced arrest on abuse-of-power charges.13 Zhakiyanov refused to leave the embassy and the French ambassador stated that the embassy would not force him to leave. After an agreement was reached between the embassies of France, Germany, the United Kingdom, and the United States with the government of Kazakhstan, Zhakiyanov left the French Embassy on April 3, 2002. The European embassies had made clear from the beginning their dislike of the premises being used for political purposes. On April 10, 2002, Zhakiyanov was arrested by the Kazakh authorities. On February 27, 2002, 21 young Cubans crashed a bus through the gates of the Mexican embassy in Havana and asked for asylum.14 After the Mexican embassy concluded that these men were not political refugees, it asked the Cuban authorities to eject the asylum seekers from the embassy’s premises. On March 1, 2002, Cuban

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special police arrested the men and led them away. This case illustrates that diplomatic asylum applies only to persons qualifying as political persecutees. Therefore, diplomatic asylum is also called “political” asylum. Sometimes, asylum seekers insist on staying in the mission because they feel that the assurances that they will not be punished after they have left the embassy are insufficient. In these cases it can be difficult to persuade unwelcome visitors to leave the mission. In June 1978, seven Russian Pentecostalists, members of a Christian sect, took shelter in the US embassy in Moscow.15 The group consisted of members from two families who had suffered badly from harassment and persecution by the Soviet authorities. They hoped to force the Soviet authorities to allow them to emigrate. The US embassy allowed them to live in the waiting room of the embassy’s consular section. Over time, however, the embassy officials tried to persuade them to leave the embassy. Ambassador Malcom Toon wrote them a letter suggesting they depart and make use of established channels to pursue emigration. Even after the Soviet government had given its assurances that it would not prosecute these Pentecostalists and would allow them to emigrate, the Pentecostalists refused to leave the embassy, preferring to stay in the small room in the embassy, where they could not receive visitors. Only after having lived in the US embassy for nearly five years did the Pentecostalists finally leave. They all were granted exit visas, but it had taken the intervention of President Ronald Reagan to solve this case of diplomatic asylum.16 Asylum Seekers from Third Countries Asylum seekers are not necessarily citizens of the host country. It happens that citizens from other countries who are residents in the host country try to seek diplomatic asylum in a diplomatic mission. For example, on July 18, 2002, two Afghan children, aged 12 and 13, who had escaped from a detention center in Australia entered the British Consulate in Melbourne and asked for asylum. The request was rejected and the two girls were handed to the Australian

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authorities. The Court of Appeal in London upheld the decision by the British government in a judgment rendered on October 18, 2004.17 The Court examined whether the British government violated Article 3 of the European Convention on Human Rights, which stipulates that “no one shall be subjected to torture or to inhuman treatment or punishment”.18 In the Court’s view the children had suffered in the detention camp, but the conditions in the camp were undergoing public scrutiny and judicial proceedings were under way. Since Australia observed the rule of law, the officials from the British consulate in Melbourne could assume that the Australian authorities would not allow the children to be exposed to treatment forbidden by the European Convention. The Japanese consulate in Shenyang (China) was confronted with a different situation. On May 8, 2002, five members of a North Korean family tried to enter the Japanese consulate in Shenyang, but were detained by Chinese military police.19 The Chinese policemen entered the premises of the consulate during the skirmish. The Japanese government protested against this violation of the consulate’s inviolability and demanded the release of the five detainees. The Chinese government argued that the police officers had been invited in by Japanese officials. Pictures taken during the incident did not show the Japanese officials moving to stop the arrests. Since subsequently the Japanese consul general in Shenyang was removed and various Japanese consular officials were reprimanded for having failed to deal appropriately with the case, it seems that indeed the Chinese police acted with the consent of the Japanese consulate.20 Two weeks after the incident the Chinese government allowed the five North Koreans to leave for Seoul via the Philippines. Apparently, the Chinese government felt that the tension in the relationship with Japan caused by the incident was undesirable. Therefore, China put an end to it by allowing the North Korean to depart. The Chinese government had reacted in the same way in previous similar cases when North Koreans sought asylum in embassies of Western countries in Beijing. The decision to grant the North Koreans what they wanted was facilitated by the fact that the asylees were foreigners and not Chinese citizens.

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Latin American Practices It has been a tradition among Latin American states to grant diplomatic asylum. Latin American states historically have had unstable governments, and attempts to topple them have occurred frequently. Thus, there has been a need to grant shelter to those who were deposed or to those who had unsuccessfully tried to overthrow their government. Diplomatic asylum became so widespread that the Latin American countries concluded five treaties to agree on the details. The conventions signed in Havana on February 20, 1928 and in Montevideo on December 26, 1933 did not establish a right to grant diplomatic asylum, but referred to the legal situation of the receiving country.21 The treaty signed in Montevideo on January 23, 1889 and revised by a treaty signed in Montevideo on August 4, 1939 did recognize a right of the contracting parties to grant diplomatic asylum.22 These treaties were, however, ratified by only a few countries.23 The convention signed in Caracas on March 28, 1954 stipulated explicitly that “every state has the right to grant asylum”.24 This convention was ratified by 14 Latin American countries.25 A closer look at the Caracas Convention reveals the problems in making the granting of diplomatic asylum a right of states. It has been a tradition in Latin American practice to grant diplomatic asylum only to individuals persecuted for political reasons, but not to persons sought for common offenses or whom regular courts have convicted. These principles are upheld by Articles I and III of the Caracas Convention. However, the question of who should determine the nature of the offense remains. This was exactly the question the International Court of Justice (ICJ) focused on in its Judgment in the Colombian-Peruvian Asylum Case, rendered on November 20, 1950. The Colombian embassy in Lima had granted diplomatic asylum to Victor Raul Haya de la Torre, the leader of the American People’s Revolutionary Alliance, who was sought for having staged a rebellion. The Court made it clear that Colombia, the state that had granted de la Torre asylum, could not invoke the Montevideo Convention of 1933 because Peru,

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the receiving or territorial state, had not ratified it. The Court then examined whether customary international law contained a right of qualification of the offense as political or ordinary. It came to the conclusion that “the principle of international law does not recognize any rule of unilateral or definitive qualification by the State granting diplomatic asylum”.26 The Caracas Convention, signed three and a half years after the ICJ’s Asylum Case Judgment, decided the question stating the following in its Article IV: “It shall rest with the State granting Asylum to determine the nature of the offense or the motives for the persecution”. To let the state that grants asylum decide to whom it will give shelter in one of its missions is the only possible and practicable solution to the problem. Countries tend to shy away from accepting diplomatic asylum as a rule of international law, based on the principle of noninterference. They are concerned, as can be seen from the statement of the Swiss government mentioned previously, that their own territorial sovereignty might be violated by foreign missions that give shelter to individuals who claim to be persecuted. Thus, the provision of Article IV of the Caracas Convention, giving the competence to qualify an offense to the state granting asylum, is an exceptional provision. Another problem pertaining to diplomatic asylum is that the state granting asylum and the asylee are interested in keeping the period of time of the asylee’s stay at the mission as short as possible. The asylee wishes to leave as quickly as possible for a country that is willing to give him safe haven. The state granting asylum wishes to end the asylum quickly since it is an issue that probably creates tension with the territorial state. The asylee, however, can leave the protecting mission in most cases only with the consent of the territorial state. It is rare that an asylee can leave the territorial state unnoticed. One exception occurred in January 1980, when six American diplomats who had taken refuge in the Canadian embassy in Teheran after the US embassy had been forcibly occupied by Iranian militants, left Iran with false Canadian passports.27 In most cases, however, it is in the hands of the territorial state to

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decide whether the asylee can reach the frontier safely. If diplomatic asylum is made a right of the state granting asylum, the territorial state must grant safe conduct so that the asylee can leave the country without being put in danger. Article XI of the Caracas Convention provides for safe conduct within the territorial state. This provision constitutes another important intrusion on the jurisdiction of the territorial state. There is another aspect that highlights the difficulties of solving the conflict between the concepts of non-interference and diplomatic asylum. In its judgment in the Colombian-Peruvian Asylum Case, the ICJ had decided that Colombia was not authorized to qualify Haya de la Torre as a political refugee. Thus, the asylum that had been granted in the Colombian embassy was irregular. It would have been logical, then, to consider Colombia obliged to surrender the refugee to the Peruvian authorities upon request. However, in its Order of January 13, 1951 in the Haya de la Torre case the ICJ rejected this consequence. The Court argued that the various possibilities by which asylum can be terminated cannot “be based on legal considerations, but only on considerations of practicability or of political expediency”.28 The Latin American attitude towards diplomatic asylum has been criticized as erratic. The ICJ complained as follows: “The facts brought to the knowledge of the Court disclose so much uncertainty and contradiction, so much fluctuation and discrepancy in the exercise of diplomatic asylum and in the official views expressed on various occasions, there has been so much inconsistency in the rapid succession of conventions an asylum, ratified by some States and rejected by other, and the practice has been so much influenced by considerations of political expediency in the various cases, that it is not possible to discern in all this any constant and uniform usage, accepted as law, with regard to the alleged rule of unilateral and definitive qualifications of the offense”.29 The Latin American practice to respect diplomatic asylum has, however, often been helpful. For example, when the government of President Allende in Chile was overthrown by a military Junta in September 1973, many Chileans and foreigners, approximately

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4000 persons, found shelter in foreign embassies.30 A large number of the asylees sought refuge in the embassies of Mexico, Argentina, Panama, and Venezuela. Others took shelter in various European embassies. Many of the asylees were granted safe conduct by the new Chilean government. At the end of December 1973, the Chilean government made it known that it would not grant safe conduct to refugees in the embassies of countries that had not signed the Montevideo Convention of 1933 and the Caracas Convention of 1954 on asylum. Nevertheless, Latin American regional conventional law and practice had helped to save the lives of many individuals in the bloody aftermath of this coup. Latin American practice concerning diplomatic asylum was helpful also in many individual cases. For example, in March 2003, Carlos Ortega, head of Venezuela’s largest trade union, found shelter in the Costa Rican embassy in Caracas.31 Ortega organized a strike with the aim to oust Venezuelan president Hugo Chávez. The strike failed and Ortega was wanted for treason, rebellion, and incitement. The government of Costa Rica granted him asylum. After the president of Ecuador, Lucio Gutierrez, was ousted in April 2005, he took shelter in the Brazilian embassy in Quito.32 The Brazilian government granted him diplomatic asylum referring to the Caracas Convention of 1954. Practical Difficulties The events in Chile in 1973 illustrated the difficulties in dealing with large numbers of asylees. Western countries are afraid that if they recognize a right of diplomatic asylum, asylum seekers might flood their diplomatic missions and consulates. This practical reason contributes to countries’ rejection of the legal concept of diplomatic asylum. The difficulty of handling large numbers of asylees can be exemplified by the following cases. On several occasions in 1979 and early 1980, Cuban asylum seekers forced their way into the Peruvian and Venezuelan embassies in Havana, where they were given shelter.33 Tensions then developed between the two shelter-providing states and Cuba, which

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considered the asylum given by the two embassies as irregular. The tensions were aggravated when the Cuban foreign ministry made it known that in the future, the Cuban government would determine whether a Cuban seeking shelter in a foreign embassy was a common criminal or a political refugee. On March 28, and April 1, 1980, a number of Cubans sought refuge in the Peruvian embassy in Havana. Because a Cuban guard was killed when the second group crashed into the embassy, the Cuban government announced it would no longer prevent “delinquents, common criminals and anti-social elements” from seeking refuge in the Peruvian embassy.34 The number of Cubans taking refuge in the Peruvian embassy then increased dramatically, particularly after the Cuban government announced on April 6, 1980 that it would allow all “anti-social elements” to leave the country. Within a few days, more than 10,000 Cubans had gathered in the compound of the Peruvian embassy. Since it was impossible for the embassy to provide food and water for so many refugees, the Cuban government had to help. After the Cuban government had offered safe conduct and exit permits, several thousand Cubans returned to their homes. Most of the people that remained in the Peruvian embassy left Cuba only after an international rescue operation had been set up. Besides Peru, other countries, including Belgium, Canada, Costa Rica, Ecuador, the Federal Republic of Germany, France, Spain, and the United States took in Cuban refugees. By June 3, 1980, only 25 Cubans remained in the Peruvian embassy. The run on the Peruvian embassy in Havana in 1980 set off an exodus of Cubans fleeing their country. When Cuban authorities announced that anyone could leave the country, Cubans had a chance to directly flee their country without taking prior shelter in an embassy. More than 100,000 Cubans used this opportunity to flee to the United States.35 Since the refugees departed from the Cuban port of Mariel, they are often referred to as the “Mariel Cubans”. Ten years later, another run on embassies again required an international rescue operation. On July 1, 1990, anti-government demonstrations erupted in Tirana (Albania).36 The government brutally quelled the unrest. Between 4000 and 6000 Albanians took

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refuge in embassies in Tirana. More than 3000 asylees went to the embassy of the Federal Republic of Germany, while the remaining individuals went to other embassies, including those of Italy, France, Greece, Turkey, Hungary, Poland, and Czechoslovakia. Ferryboats brought the refugees to Italy; from there they were transported by special trains, most of them to Germany. Another vessel brought refugees to Marseilles (France). After the refugees had left, the embassies of Germany, France, and Italy had to be temporarily closed in order to be cleaned and repaired. These examples illustrate that extraordinary efforts are necessary to cope with large numbers of people who have been granted diplomatic asylum. Countries that are preferred sanctuaries, therefore, try to avoid this situation. They do so by restricting diplomatic asylum to extreme cases. Temporary Refuge Countries that do not recognize a right of asylum, such as the United States and Germany, are nevertheless willing to grant temporary refuge in their missions. As stated previously, they invoke “humanitarian reasons” and offer refuge only to individuals whose life or limb is put in immediate danger.37 They also insist that the refuge is temporary and should be terminated when the period of danger to the refugee has come to an end. This approach results in various problems. The reasons for giving shelter are not always of a strictly humanitarian nature but often include political elements as well. For example, at the beginning of June 1989, the Chinese government suppressed pro-democracy demonstrations in Tiananmen Square in Beijing. Also in June 1989, the Chinese astrophysicist Fang Lizhi and his wife Li Shuxian found shelter in the US embassy in Beijing.38 The Chinese government charged Fang Lizhi with committing the crimes of counter-revolutionary propaganda and instigation and issued an arrest warrant. A year later, on June 25, 1990, Fang Lizhi and his wife were allowed to leave China. They were said to have admitted their opposition to Chinese communist concepts

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and promised not to engage in activities directed against China. Fang Lizhi was given asylum in the US embassy not only because he was in danger, but also because he was one of the leading intellectual dissidents in China. By this action the United States government chose to express its sympathy with the democratic movement in China. Countries that occasionally grant temporary refuge in their missions abroad do not follow a single pattern, but rather adapt their actions to the situation. In any case, they prefer to determine the maxims of their interventions themselves. Thus, a rule of customary law on granting temporary refuge cannot evolve. The assessment of the ICJ in the Colombian-Peruvian Asylum Case of 1950 is still valid: “In a more general way, considerations of convenience or simple political expediency seem to have led the territorial State to recognize asylum without that decision being dictated by any feeling of legal obligation”.39 A refugee’s stay in a chancery can become an inconvenience. Therefore, states granting asylum try to make the stay of the refugee in their mission a temporary one. It is, however, not in their power to decide about the length of the stay of a refugee. They need the refugee’s and the territorial state’s consent to terminate the refuge. The Mindszenty case illustrates this situation. Joseph Cardinal Mindszenty, Archbishop of Esztergom and the Hungarian Prelate, tried to resist the Hungarian communist government when, in the years after the Second World War, it persecuted Christians and nationalized Christian schools.40 In 1948, the communist government arrested, tried, and jailed him. In 1955, he was released from jail because of old age and bad health. After the uprising under Prime Minister Imre Nagy in October 1956, he was reinstated as Archbishop of Esztergom. When the Soviet Union crushed the Hungarian uprising, Cardinal Mindszenty asked to be granted asylum in the US embassy in Budapest. Asylum was granted on humanitarian grounds since his life was in danger. On March 23, 1963, a Hungarian government spokesman offered that

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Cardinal Mindszenty would be given amnesty if he requested it. In that case, the Hungarian government would allow him to live as a citizen in Hungary, but would not recognize him as Archbishop of Esztergom. The Cardinal hesitated to accept this offer and made various demands. He asked in particular for an agreement to be reached on his successor as Archbishop of Esztergom. The Holy See urged Cardinal Mindszenty to accept the offer of the Hungarian government. Finally, on September 28, 1971, the Cardinal accepted and left for Rome. Since the Cardinal at that point had lived for nearly 15 years in the US embassy in Budapest his stay could not be called a temporary one. An Unsatisfactory Result The request for diplomatic asylum is a rare event in the life of an embassy or consulate, but it happens. It happens particularly in countries that show strong internal tensions and do not have mechanisms to balance these tensions. Foreign missions in these countries must be aware that asylum seekers may knock at their doors. The head of mission must instruct the members of the staff on how to react if someone tries to seek shelter in the mission. Often, missions are confronted with the question of whether they allow someone who indicates he or she wishes to seek shelter to enter the premises. Since Western missions have a practice of giving an individual a chance to present his or her request, they are inclined to let the asylum seeker in. It might, however, be difficult to make the individual leave the mission if the request for asylum is rejected. In any case, granting asylum or temporary refuge in an embassy or a consulate results in a confrontation with the government of the host country. If a diplomatic or consular mission shelters a citizen of the host country against his or her own government it is a massive interference in the host country’s affairs. The International Court of Justice said the following: “A decision to grant diplomatic asylum involves a derogation from the sovereignty of that State.

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It withdraws the offender from the jurisdiction of the territorial State and constitutes an intervention in matters which are exclusively within the competence of that State”.41 Thus, granting asylum violates the prohibition of interference in the host country’s internal affairs stipulated by Article 41, para. 1, sentence 2, of the CDR and Article 55, para. 1, sentence 2, of the CCR. At the same time it is a violation of the prohibition to use the mission’s premises in a manner incompatible with the functions of the mission (Article 41, para. 3, of the CDR, Article 55, para. 2, of the CCR). Therefore, negotiations between the state that grants asylum and the host government are difficult and may take a long time. They are typically solved only when the asylum case becomes an obstacle to progress in the relationship between both countries. It is also a violation of the prohibition of interference in the internal affairs of the host country when an embassy or a consulate shelters a citizen not of the host, but of a third country. A legal basis for solving the conflict between the asylum granting state and the host country is only provided by the Caracas Convention of 1954 and only if both states are parties to the treaty. Tensions can be contained without much friction when a tradition prevails to accept diplomatic asylum. This is only the case in Latin America. The Court of Appeal in London used Article 3 of the European Human Rights Convention as yardstick for the consulate’s dealing with a request for diplomatic asylum. According to the Court’s arguments the consulate would have been justified in refusing to return the children to the Australian authorities if the threat to the safety of the children was sufficiently immediate or severe. Even if this line of thinking is accepted, the conflict with the territorial state is not solved because Australia is not bound by the European convention. One could try to refer to the many human rights treaties concluded under the auspices of the United Nations that are binding for both countries. This reference, however, does not help either. None of the human rights treaties stipulates that the asylum granting state has to determine the nature of the offense for the individual’s persecution and that the territorial state is

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under the diplomatic of a state, similar to diplomatic

obligation to grant safe-conduct. Since the granting asylum is a massive interference in the internal affairs such an exception must be laid down by precise rules those of the Caracas Convention. A codification of asylum is, however, not in sight.

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Chapter 9

An Embassy’s Lifelines

Communications A bilateral diplomatic mission is charged with maintaining a dialogue between the sending and the receiving state. It can fulfill this function to communicate with the host government only if it is continuously informed about the policies that it has to promote and the rules that it has to follow. Therefore, the channels of communication with the home government must be open. The mission must be in a position to rely on the secrecy of its official communications. The general clause of Article 27, para. 1, sentence 1, of the CDR stipulates a diplomatic mission’s freedom of communication. The receiving state is obliged to “permit and protect free communication”. This makes the interception of a mission’s communication unlawful. If somebody in the host country intercepts such communication the host country’s government is obliged to intervene and stop the interference. By virtue of Article 27, para. 1, sentence 2, of the CDR, a diplomatic mission has the right to use “all appropriate means” to communicate with its own government. The means of communication are an embassy’s lifelines. They include the diplomatic bag, diplomatic cargo, messages via the telecommunication network, and telephone conversations. The Pouch A diplomatic bag is usually a pouch, and called as such in diplomatic colloquial language. Pouches arrive and leave with regular 183

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frequency, for example, on a weekly basis. The “pouch day” causes excitement in the embassy. The outgoing reports have to be ready, and the embassy staff waits with suspense for the new instructions and information that the incoming pouch brings. The stipulation of the Convention on Diplomatic Relations not to open or detain a diplomatic bag (Article 27, para. 3) has generally been respected, and cases in which a pouch is tampered with are rare. The diplomatic bag is a well-functioning lifeline, as underlined by the reaction of the US embassy in Moscow to the Soviet bugging attempts of the 1980s: The embassy decided in the spring of 1987 to send more sensitive messages by diplomatic bag.1 A diplomatic bag is, however, not necessarily a pouch. According to Article 27, para. 4, a diplomatic bag may contain “diplomatic documents or articles, intended for official use”. Articles for the embassy’s official use can be sent by freight. In this case they are free from custom duties, but not free from inspection (Article 36, para. 1, lit. a, of the CDR). When a government sends furniture for the ambassador’s residence, for example, it may not mind the inspection of the cargo. If a lot of furniture is sent, the items may fill a container or several containers that are transported to a harbor in the receiving country and from there sent by truck to the embassy. When, however, the articles to be transported are of a sensitive character, such as a cipher machine or an antenna for a wireless transmitter, the sending government prefers to send the articles under the protection of a diplomatic bag. In this case, the “bag” is a crate or a container. What makes a consignment a diplomatic bag are “visible external marks” of its character (Article 27, para. 4). These marks are usually a seal and a label. One of the few cases when a diplomatic bag was opened occurred in Harare in March 2000.2 The British government had sent more than seven tons of protective screening equipment for communications in a container to its embassy in Harare. The custom officials of Zimbabwe opened the container, creating a diplomatic row between the two countries. There have been rare attempts to overstretch the term “diplomatic bag”. In two instances the Soviet Union tried to declare

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a truck a diplomatic bag. In July 1984, it sent a truck to its permanent mission in Geneva.3 The Swiss authorities considered the load to be cargo according to Article 36, para. 1, and, therefore, the truck could enter Switzerland customs free, but needed to be inspected. The Soviet mission disagreed, and accordingly, the truck had to be sent back. In 1985, the Soviet Union sent a truck to Germany.4 In this case, the Soviet embassy agreed to open the truck and produce a list of the number of packages. The German authorities did not open the packages. Misuses of the diplomatic bag have occurred when it has been employed to transport items such as drugs, arms, or explosives. In 1989, for example, British customs authorities exposed a Peruvian diplomat trying to smuggle 20 kg of pure cocaine, worth £4 million, through Heathrow in a diplomatic bag.5 In 2003, British customs officials discovered heroin in a diplomatic bag to the High Commission of Sierra Leone in London.6 This type of scenario has sparked off a debate on how to balance the interests of the sending state in safeguarding communications and those of the receiving state in preventing misuse. In this context it is interesting to note that the consular bag gets less protection than the diplomatic bag. Article 35, para. 3, of the CCR lays down the so-called challengeand-return principle: If there are serious reasons to believe that the consular bag contains something other than official correspondence, documents, or articles for official use, the government of the receiving state can request that the bag be opened. If that request is refused the bag has to be sent back. In 1989, the International Law Commission presented a draft for a new convention on the diplomatic courier and the diplomatic bag.7 However, the decisive question of how to balance the interests of the sending and the receiving state was not addressed. Article 28, para. 1, of the draft repeats the comprehensive protection of the diplomatic bag as guaranteed by Article 27, paras. 2 and 3, of the CDR, adding the explicit prohibition of using electronic or other technical devices to examine the bag. Article 28, para. 2, of the draft repeats the limited protection of the consular bag, contained in Article 35, para. 3, of the CCR. The draft has not been accepted by the international

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community and has not become an international convention. This means that the comprehensive protection of the diplomatic bag granted by Article 27, paras. 3 and 4, of the CDR continues to be valid. Exceptions can be accepted only if human life is threatened. It sounds rather improbable that a diplomatic bag can endanger human life, but this has happened. In November 1964, Italian officials found a kidnapped Israeli citizen in a crate, marked as a diplomatic bag, sent by the embassy of the United Arab Republic and addressed to the foreign ministry in Cairo.8 In a similar case, an attempt was made to abduct a former Nigerian minister of communications from London in July 1984.9 British customs officers found the anesthetized minister in one of two crates at Stansted Airport addressed from the Nigerian embassy in London to the Nigerian foreign ministry in Lagos. Governments usually define the possible contents of diplomatic bags by internal regulations that interpret the words “diplomatic documents or articles intended for official use”. Practices seem to differ as far as borderline cases are concerned. To use the pouch for private mail of the members of the embassy staff is often common practice even though the documents are of a private and thus not official character. If a government sends medical supplies, such as vaccines for the embassy staff, the supplies are considered articles for official use. Difficulty arises when third parties try to use the bag. There is often great pressure on embassies to allow the transport of documents of third parties in the pouch. A private business firm, for example, may want to use the pouch to send the text of an important business agreement. Citizens working for governmentfunded projects also seek to use the pouch as do staff members of semi-governmental bodies, such as cultural institutes. In these and similar cases, it is crucial that home governments establish clear rules on how the cases should be handled by embassies. Governments should base their rules on the understanding that the diplomatic bag is a bag for diplomatic mail. Third parties can use worldwide private courier services. A diplomatic bag can be transported by a regular (professional) courier, an ad hoc courier, or a captain of a commercial aircraft.

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Having a diplomatic bag accompanied by a courier continues to be a necessity when documents or articles are sent that enjoy a high grade of classification, such as ciphers or other secret material. Foreign ministries, therefore, still have professional couriers. When the need arises, classified material can also be carried by a member of the embassy who travels home or by a member of the foreign ministry when he sets out to visit the embassy. As long as these persons carry a diplomatic bag, they are considered ad hoc couriers. Both the regular and the ad hoc courier are inviolable (Article 27, paras. 5 and 6, of the CDR). The inviolability of the ad hoc courier ends when he has delivered the bag to the diplomatic mission. The bag and the courier must be clearly identified as such. The courier must carry a document that indicates his status as well as the number of packages that constitute the bag (Article 27, para. 5, sentence 1). This “Document of Identification” may also repeat the provisions of the CDR that the courier and the bag are inviolable. Most of the time, diplomatic bags are sent unaccompanied by a courier. They can be entrusted to a captain of a commercial aircraft. He also needs to carry an official document indicating the diplomatic bag he is transporting. However, this document does not make him a courier (Article 27, para. 7). If the national airline of the sending state has regular flights to the capital of the receiving state it will be the first choice of transportation for the unaccompanied diplomatic bag. If the national airline does not serve the capital of the receiving state, an airline of an allied or friendly country will be entrusted with the transport of the diplomatic bag. The provision that the bag can be picked up directly from the captain (Article 27, para. 7, sentence 3) is not of crucial importance.10 In many capitals, diplomatic bags are picked up and delivered at a special bag claim area within the airport. In particular this occurs when the bag is sent by airfreight. Today airfreight is the most frequently used method of transportation for airbags. Finally, when a diplomatic bag reaches a third state in transit the bag remains protected in the same way as in the receiving country (Article 40, para. 3 of the CDR). Thus, it is forbidden to open or detain a bag that has arrived in transit.

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Telegraphy of Old Until the advent of information and communication technology (ICT) the bulk of the messages reaching and leaving the embassy were sent either as telegrams or, more often, as telexes. These means of communication are still used, though less frequent by those states that have more modern technologies at their disposal. The communication via telegram and telex is fast and, by virtue of highly developed systems of enciphering, secure. A report is first written and enciphered. Then the ciphered text is transformed into signals that are sent to the foreign ministry at home. There the signals are received, deciphered, and transformed into plain text. Instructions are sent in the same way to the embassy. Messages that do not need to be ciphered, such as the text of a piece of new legislation, are sent by fax. Ciphering and deciphering are no longer burdensome and time consuming.11 This work is no longer done manually or by rotor machines but by electronic machinery. To transmit their messages, an embassy and the foreign ministry use the facilities available in their particular region. If the telegraphic service (for telegrams) or the telex service (for telexes) are reliable they will use them. Since the advent of satellites and high-capacity submarine cables these means of transmitting messages have become reliable.12 A large embassy with much communication to exchange with its own foreign ministry may rent a telephone line on a permanent basis so that it is available 24 hours. If the telegraphic and telex networks are unreliable or too expensive, countries will establish wireless transmitters. It becomes obvious that many embassies use wireless transmitters when one walks through the embassy quarter of a capital and sees the many towering antennas. An embassy equipped with the facilities for wireless transmission does not necessarily use the system for direct contact with its foreign ministry. In many cases, the messages are sent to a relay station at an other conveniently located embassy, and then passed from there to home. States that have the necessary technology and can afford it generally have their own telecommunication networks.13

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In the field of communication between embassies and their foreign ministry, larger and richer countries have a definite advantage. It is, therefore, understandable that the less favored countries have tried to prevent the gap from widening even further. Upon their insistence a clause was added in Article 27, para. 1, of the CDR requiring the consent of the receiving state for the installation and use of a wireless transmitter.14 Some countries insist that this clause be strictly adhered to. The Chinese government, for example, requests that a wireless transceiver be imported only after the foreign ministry has approved the import following an application by the diplomatic mission.15 Other countries have agreed explicitly to the use of wireless transmitters. For example, when the United States and Albania took up diplomatic relations in 1991 they consented to the use of wireless transmitters including satellite links, by their embassies.16 It is doubtful, however, whether practice always strictly follows the stipulation of Article 27, para. 1. No express consent is required, and the absence of protest by a receiving country against the installation of a wireless system on the premises of an embassy is sometimes interpreted as consent. No instrument of communication is used more often by diplomatic missions than the telephone. Complaints by foreign ministries that missions’ telephone bills are running too high were frequent. Since costs for telephone calls have dropped considerably in recent years, the telephone budget of missions may have been relieved. However, foreign ministries discourage their missions using the telephone too frequently because telephones can be easily bugged. Therefore, foreign ministries prohibit the use of the telephone to discuss confidential subjects. In emergency situations, there is no better way to communicate than by phone. To achieve independence from an unreliable local telephone system, a satellite telephone is helpful. It is easy to install; the dish only has to be placed in the direction of the satellite and the electricity switched on. Missions equipped with a satellite telephone, therefore, have an excellent backup communications system.

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Information and Communication Technology The achievements of modern information and communication technology (ICT) have also had a tremendous impact on foreign ministries and diplomatic missions.17 The development had a slow start. When foreign ministries and their missions abroad received their first computers it meant office automation that resulted in making word-processing easier and cheaper. When the Internet spread to more and more countries, ministries and missions were able to use it as source of information. Only when foreign ministries started to develop own ICT networks the great leap forward was done. With an own network the foreign ministry can see to it that the necessary information is at any time available for those who need it. The introduction of ICT systems in foreign ministries and diplomatic and consular missions developed in stages.18 The first step was often the creation of an internal network. The internal network provides the ministry the possibility to disseminate general internal information and gives officials the chance to publish their views and to file applications. The next step was to set up systems that linked the foreign ministry and its missions. These systems provide missions abroad with specific information, for example, on political, commercial, and consular issues. The next stage is to integrate the various networks into one single global online organization. The Canadian Department of Foreign Affairs and International Trade, the vanguard of using ICT for diplomacy, has created one computing platform for the ministry and its missions that gives access to various networks.19 One network is used for unclassified traffic including internal communication regarding administrative issues; another one is used for classified traffic. Members of Canadian missions have also access to more than 100 databases. The Foreign and Commonwealth Office (FCO) achieved its goal to integrate its networks in January 2004.20 The FCO Telecommunications Network (FTN) is linking posts abroad with the FCO, and a standard desktop is used as a single terminal. The US State Department established a global network and infrastructure by 2005.21 This

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network gives also access to special applications, that is, to databases that support, for example, public diplomacy, the conclusion of treaties, and decisions on refugees. Since 2006 the State Department has a web site called Diplopedia. It is a wiki, that is to say that everybody who works in the Department can contribute.22 To secure their networks against spying attacks is particularly challenging for foreign ministries. Though much of the correspondence between a foreign ministry and its missions is not formally classified in the lowest category (“for official use only”), it nevertheless is supposed to be for official use only. A foreign ministry’s network can be secured via the use of cryptographic procedures. Not only hackers, but also viruses, worms, and spam, have to be kept out. In 2004, the British FTN could be used, where permitted, up to the classification level “confidential”. The State Department reported that it had achieved defense-in-depth security in 2005. It has classified and unclassified networks at its disposal. Modern communication technology has strongly influenced the way in which foreign ministries and their missions correspond with each other. The cable (telex and telegram) is still used, but has been overtaken by e-mail. This development is illustrated by the following figures: In 2005, the annual output of the Department of State included, among others, more than two million cables and 200 million e-mails. E-mails have replaced many of the formal communications. Formatted mails, which are electronic versions of telegrams, are called “e-grams” in the British system. As the information and communication technology advances, foreign ministries try to adapt and improve their systems. Some countries, such as the United Kingdom and the United States, have developed strategies for the future of their IT systems. The FCO aims at providing greater flexibility, particularly in enabling remote and mobile working. It also wants to create an infrastructure that is secure for higher classifications. The State Department aims at empowering diplomacy with information and tools available anytime, anywhere, and at aligning the ICT strategy with the political

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strategy. The advance of ICT will, as earlier technologies such as the telephone and the telegraph have done, result in changes in the way foreign ministries and missions work. The members of the foreign service have to be trained so that they can make full use of new technologies. It is one of the tasks of the State Department’s office of e-diplomacy to train and support members of the non-IT staff to use the ICT technology effectively.23 The increased speed of communications provides diplomats abroad with a greater chance to influence policy making at home if they see themselves as part of the political process.24 The abundance of information provided by information and communication technology makes it difficult to make the right choice in a concrete case. Therefore, it remains a task “getting the right information in the right format to the right people at the right time to enable effective decisions and actions”.25 Whatever decisions are made concerning the use of ICT, by foreign ministries and diplomatic missions, the functions of diplomats to interact personally remain untouched.

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Chapter 10

Special Missions

Summitry Sending and receiving an envoy who had to perform a specific task marked the beginning of diplomacy. The ad hoc envoy was later superseded by the resident ambassador. In the second half of the 20th century, ad hoc diplomacy came to life again. The speed and ease of travel made frequent exchanges of visits possible. The increasing complexity of foreign policy issues and the demands of crisis management made them necessary. Heads of state or government, foreign ministers, cabinet ministers, heads of government agencies, special envoys, and all kinds of government delegations visit other countries on official duty. They take part in bilateral and multilateral meetings. The focus in the following text is on bilateral activities. Summit meetings are those between heads of state and heads of government.1 In some countries the functions of the head of state and the head of government are combined; in other countries they are separated. The presidents of France, Russia, and the United States, for example, combine both functions. In other countries, the functions of head of state and head of government are held by different persons. For example, in Japan, the head of state is the emperor and the head of government is the prime minister, in the United Kingdom, the head of state is the queen, the head of government is the prime minister, and in Germany, the head of state is the president and the head of government is the chancellor. 193

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Depending on the status of the participants, summit meetings differ in importance. When one participant in a summit meeting is not a head of government, relations between his/her and the host country and foreign-policy issues can only be discussed in a general way. Therefore, no communiqué is published at the end of the visit. These visits are regularly public relations efforts trying to generate goodwill in the host country. Summit meetings in the narrower sense of the word are those between heads of government. These meetings can be successful because in such a case two politicians meet who can make final political decisions for their governments. When policy decisions are made in the course of a summit meeting, they are regularly preceded by negotiations. Each side has its own ideas and an agreement can only be reached after the interests of both sides are made to coincide. When interests are irreconcilable, summitry cannot make them meet. More often summit meetings between heads of government pursue more modest objectives. Chief executives want to explain their views on bilateral and international relations, sound out the other’s attitude towards these and other issues, promote specific issues, and improve their country’s image. Most of these visits are also public relations efforts directed at an audience at home. Sometimes planeloads of journalists accompany the head of government on his trips abroad. Both categories of visits regularly end with the publication of a communiqué. There are cases when the reason for a chief executive’s visit to a foreign country is a special and limited one. To this third category of summit meetings belong cases when the head of state travels, for example, to introduce himself to the head of government of a neighboring state after having won an election, to attend an important ceremony such as a celebration or a funeral, to make a stop-over during a flight to another country or to deliver a speech. These visits are short and demonstrate friendly feelings. Summit meetings are frequent. Between the end of World War II in 1945 and 1990, the presidents of the United States made approximately 225 visits abroad during 105 trips. In other words, during that period of time the American presidents made on

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average five visits per year.2 European heads of government travel more often. The close cooperation within the European Union makes frequent personal contacts on the highest governmental level necessary. European heads of government also tend to see themselves as their country’s chief salespersons abroad. The meetings on the highest level that consist of a mix of policy-making and diplomacy are particularly interesting. The visit of President Richard Nixon to China in February 1972 serves as an example.3 Nixon was the first president of the United States who ever visited China. When he did so, both countries had no diplomatic relations and were looking back to decades of considerable tensions. Both sides overcame the long period of silence because of strategic interests. The Nixon administration envisaged that the domination of the world by the two superpowers was coming to an end and was to be substituted by a triangular solution that included China. The rift between China and the Soviet Union, which had resulted in military clashes on the border, opened the chance to improve the relations between the United States and China. The Nixon administration calculated that the rapprochement between the United States and China would moderate Soviet behavior. The Chinese leadership had a matching concept. The Chinese side proceeded “from the strategic requirements of adjusting the big triangular relations between China, the United States, and the Soviet Union”.4 During his stay in China, President Nixon met Chairman Mao Zedong and had a number of discussions with Prime Minister Zhou Enlai. Though both sides were in agreement of the strategic issues, they disagreed on other questions, particularly on policies towards Indochina and Taiwan. In spite of the differences that were listed in the communiqué of February 27, 1972, both sides agreed to envisage the normalization of relations. According to the communiqué “both wish to reduce the danger of international military conflict; neither should seek hegemony in Asia-Pacific region and each is opposed to efforts by any other country or group of countries to establish such hegemony; and neither is prepared to negotiate on behalf of any third party or to enter into agreements or understandings with the other directed

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at other states”.5 This text meant that both sides would oppose Soviet expansionist efforts in Asia. It was further understood by the American side that China would not aggravate the situation in Vietnam and Korea. During the negotiations, the Chinese leaders had repeatedly reassured their US partners that China would not intervene militarily in Indochina. With regard to Taiwan, the United States did not challenge the position “that all Chinese on either side of the Taiwan Strait maintain there is but one China and that Taiwan is a part of China”. “It reaffirms its interest in a peaceful settlement of the Taiwan question by the Chinese themselves”, the communiqué continues. “The United States also affirmed its “ultimate objective of the withdrawal of all US forces and military installations from Taiwan”. To subscribe to a triangular power system, to stop Soviet expansion in Asia and to envisage the normalization of relations, were major policy decisions by both governments. Not to aggravate the situation in Vietnam and Korea was a policy decision by the Chinese government. To mention conditions under which the United States will disengage from Taiwan was a policy decision by the US administration. Foreign policy decisions cannot be cascaded down from the general to the specific, because they involve negotiations and the results of these negotiations are uncertain. Here diplomacy comes into play. The Chinese government had to find out, how far it had to go in dissociating itself from the liberation movement in Indochina and from the unification policy of North Korea to satisfy American wishes. The American delegation had to find out, how far they had to go to satisfy the Chinese wishes with regard to Taiwan. The Chinese leadership considered Taiwan a province of China, whereas the United States had relations with Taiwan and military forces stationed on the island. The American side was not willing to meet the Chinese demand of promising a total withdrawal of forces from Taiwan and insisted to express its interest in a peaceful solution. During the negotiations in Beijing a compromise was reached that indicated conditions for an American disengagement from Taiwan. Finally, a package was concluded that laid the basis for future US-China cooperation.

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Bilateral summitry is here to stay.6 Heads of government like to manage important foreign policy issues themselves and appreciate the inherent opportunities for public relations efforts. The number of summit meetings will be high since the increased number of states has produced many opportunities. Practice demonstrates that a summit meeting of the heads of government is only one link in the chain of bilateral relations. The point of departure for summit meetings is the current situation of bilateral relations. Summits also need a follow-up, a task performed by the bureaucracy. Heads of government are well advised if they use the expertise of their diplomats for summitry. Foreign Ministers, Special Envoys, and Governmental Delegations Fostering relations with other countries is the foreign ministers’ business. Personal contacts with other countries are considered necessary. Therefore, the foreign ministers are among the most frequent travelers among high government officials of any country. In the period between 1945 and 1990 the US Secretaries of State paid altogether 1166 visits to 109 foreign countries, nearly half of them to European countries.7 Some of the visits were very short. In 1989, for example, Secretary of State James A. Baker visited 13 European countries and Turkey in seven days. Other visits took much longer. In 1987, Secretary of State George P. Shultz was for 20 days on a trip through Europe, Asia, and the Pacific. 161 visits were made by secretaries of state accompanying the president. More than half of the 1005 visits that the secretaries made on their own had the purpose to meet, discuss, confer with, and brief foreign leaders. When foreign ministers travel abroad they wish to present their views on political developments to foreign leaders, to listen to the views of their partners, to sound out possibilities for cooperation, to ask for support of their own foreign-policy initiatives or to agree on joint actions. Bilateral visits include negotiations by the foreign ministers only occasionally. When foreign ministers, however, participate in sessions of international conferences or organizations, negotiations

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are regularly included. Foreign ministers also use their trips to formulate foreign policy. Just as the visits by heads of government, the activities of foreign ministers abroad are a mix of policy-making and diplomacy with the emphasis on diplomacy. Foreign ministers are interested that their visits are reported by their country’s media, if possible by TV. Presidents of the United States have increasingly used special envoys for a multitude of missions. For example, they represent the President at important ceremonies, such as a coronation or a funeral, they act as goodwill emissaries, convey presidential letters, collect information for the president, or negotiate or mediate with foreign governments on the President’s behalf.8 Henry Kissinger, the national security advisor of President Nixon, became a well-known special envoy. At the end of 1973 and the beginning of 1974, for example, he traveled between Washington, Jerusalem, and various Arab capitals to mediate the Middle East conflict.9 Governmental delegations are sent abroad to deal with special subjects. Sometimes they have the task of discussing issues of common concern with the representatives of the host country, for example, political cooperation. In other cases delegations are appointed to negotiate a treaty. Treaty negotiations are important and numerous. Thousands of international treaties link the members of the community of nations. Additional treaties will be concluded. The subjects of these treaties can be political such as arms limitation, atomic energy or defense. Other subjects are of an economic nature, such as civil aviation, economic cooperation, and development assistance. Bilateral negotiations concern also cultural relations and consular issues, such as extradition, juridical assistance, and narcotic drugs. Many delegations are meeting in the framework of regular consultations that were earlier agreed upon. These meetings can be those between the heads of state or government, between foreign ministers, between other ministers or between experts. For example, the Treaty of Elysée of 1963, together with its many additions, provides for regular Franco-German consultations at all govern-

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mental levels.10 Many foreign ministers are overburdened with the consultation mechanisms. This development has the consequence that sometimes the envisaged frequency of the meetings cannot be kept and that, at the same time, the influence of the embassies is enhanced. The Convention on Special Missions It was considered desirable to lay down rules for ad hoc missions, which are now called special missions.11 After years of preparations by the International Law Commission the UN General Assembly adopted the Convention on Special Missions (CSM) on December 8, 1969. The CSM has been in force since 1985.12 According to Article 1, lit. a, of the CSM a special mission “is a temporary mission, representing the State which is sent by one State to another State with the consent of the latter for the purpose of dealing with it on specific questions or of performing in relation to it a specific function”. This definition clarifies that special missions are regular instruments of bilateral diplomacy. The Convention also mentions special cases of multilateral diplomacy. Article 6 provides that two or more states may each send a special mission at the same time to another state to deal with a question of common interest. This rule would cover the summits of the Group of Eight. The G8 is an informal mechanism that brings the leaders of eight countries together (Canada, France, Germany, Italy, Japan, Russia, The United Kingdom, and the United States).13 The country that holds the Chair, which rotates annually, hosts the meeting that provides a forum for the discussion of major political and economic issues. Article 18 of the CSM mentions the case in which special missions of two or more states meet in a third state. Such meetings have happened, for example, the summit between President Ronald Reagan and Secretary General Mikhail Gorbachev in Geneva in November 1985. Since diplomacy is based on mutual consent, the sending and receiving state must agree that a special mission will be sent and

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which issues will be dealt with. A temporary mission may be sent to focus on a single issue or may have a broader agenda. During a visit of a foreign minister, many bilateral and international issues will be on the agenda. That both parties are free to agree on the function of a special mission flows from the principle of the mutuality of diplomatic relations; Article 3 of the CSM only repeats the obvious. The provisions of the CSM follow those of the CDR, with requisite changes for the special mission’s temporary character. The head of a special mission does not need an agrément. The sending state must inform the receiving state about the names and designations of the members of the delegation. The receiving state may decline to accept the size of a mission or a specific person as member of the mission (Article 8). It can also declare a member of a special mission persona non grata (Article 12). However, this provision is not of much practical importance. One does not sent an invited guest packing, particularly not if he is the chief executive or the foreign minister of the sending state. The CSM grants members of special missions both privileges and immunities. They enjoy the same inviolability as diplomats; they are free from the coercive power of the receiving state and enjoy its protection (Articles 29–31). Their premises, archives, and documents are inviolable (Articles 25 and 26), and they enjoy freedom of communication (Article 26). The CSM has not become popular. In the spring of 2008 only 38 states were a party to the Convention. Most of the larger states like the United States, Russia, India, Japan, and the larger West European countries with the exception of Spain are missing from the list of participants.14 For them, the CSM is unnecessary. They arrange visits of special missions and their agenda through the normal diplomatic channels. Rules like those contained in the CSM are seldom, if ever discussed. Both sides start from the assumption that the host country, with the two states’ common goal in view, will treat the guests with respect.15 Questions of privileges and immunities come up only if something goes wrong. This happened when an Iranian government official, the former Deputy Prime Minister Dr. Tabatabai, was taken into custody by

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German authorities when he arrived in Germany on January 8, 1981 because opium was found in his luggage.16 Before his departure, he had informed the German ambassador in Teheran that he was making a “business” visit to Germany. At the end of January 1981, the Iranian government confirmed in writing that Dr Tabatabai had been sent as a special envoy to conduct political negotiations in Europe. The German Foreign Office was of the view that Tabatabai, therefore, enjoyed immunity from German jurisdiction. It took various court decisions until the immunity of Dr Tabatabai was finally recognized. For smaller countries the situation is different. Since they do not have embassies in many countries, they may choose to maintain diplomatic relations with those states where they are not permanently represented by sending special missions.17 They feel that their ad hoc envoys should be treated like resident diplomats. Since only a small number of states have joined the CSM and since its rules have not become customary international law, the cases when a country can invoke the rules for special missions are limited. If a country attaches great importance to these rules it can try to fix them in a bilateral agreement with the receiving state before the visit takes place. Special Missions and Bilateral Embassies The visit of the head of state, the head of government, the foreign minister, other ministers or other leading personalities is a highlight in an embassy’s life. It is at the same time a challenge for the embassy. The visit, for example, of the foreign minister needs a lot of preparations. After the date for the visit of the foreign minister has been agreed upon, the details of the agenda and the program are discussed between the embassy and the ministry of foreign affairs in the country that the minister will visit. The embassy entrusts the preparations to one or more diplomats. In the ministry of foreign affairs several departments are responsible for the preparations, particularly the protocol division and the regional desk responsible

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for relations to the visitor’s country. The agenda is easily agreed upon. Regularly, each side accepts the suggestions of the other side. The agenda is dominated by current bilateral, regional, and global problems. The program often includes a meeting with the head of state and/or head of government. Sometimes the head of state decorates the visitor. The visiting foreign minister may also see other ministers, for example, the minister of trade, pay a visit to the president of parliament, see the chairmen and members of the parliamentary groups. Sometimes a foreign minister gives a speech during his visit. In that case the embassy’s advice is welcome with regard to finding a host and an audience. To include meetings with oppositional forces and human rights groups is a problem in some countries. It can be helpful to call these meetings private ones. Luncheons, receptions, and dinners accompany the visit. It is up to the embassy to suggest a guest list, if the foreign minister is to host a social function. Whether a supporting program, for example, the visit of other cities than the capital, the visit of cultural monuments and artistic performances, is planned, depends of the time the visitor spends in the host country and his familiarity with that country. The visitor’s foreign ministry prefers to negotiate the details of the program through its embassy in the host country. The foreign ministry of the host country, however, arranges the program also through its embassy in the visitor’s country. Therefore, it is important to see to it that the two tracks run parallel. The embassy is also involved in the preparations of the substance of the talks. The foreign office asks the embassy to prepare papers concerning bilateral issues. This demand gives the embassy the chance to include those items into the program that the embassy considers important or unsolved. The regional desk in the foreign ministry at home reviews these papers and includes them, together with all those papers prepared by the various divisions of the foreign ministry or by other ministries, in the minister’s folder for the visit. The ambassador accompanies the visitor during his visit. There are visitors who hesitate to take their ambassadors along to the meetings. The ambassador, however, can be the visitor’s best advisor

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because he knows the country and the minister’s interlocutors. The ambassador and one or several members of his staff are members of the minister’s delegation. They also serve as notetakers. The diplomats use the minister’s visit to renew contacts and to make new ones. Sometimes, under the umbrella of their highest superior, they succeed in solving problems, which they faced for quite some time. The members of the embassy staff take care of the delegation. A delegation office is set up, either in the embassy or in the minister’s hotel. Ministers feel that the political success depends on the reporting by the media at home and in the host country. Therefore, the embassy takes care that the journalists from home and from the host country receive the necessary information. A press office is set up to take care of the journalists from home and facilitates their work. In case the minister wants to give a press briefing, the necessary facilities must be available. A concrete example, namely the visit of the Greek Foreign Minister Mrs. Dora Bakoyannis in Washington from 25–27 September 2006, illustrates the shape of a ministerial visit.15 Minister Bakoyannis met with Secretary of State Condoleezza Rice. The two ministers discussed bilateral and international issues, such as the visa waiver for Greek citizens traveling to the United States, the situation on the Balkans, in the Middle East, the Cyprus question, and Turkey’s European prospects. Minister Bakoyannis also met President Bush’s National Security Advisor Steven Hadley and Energy Secretary Samuel Bodman. She addressed 46 members of the Senate and the House in the House of Representatives International Relations Committee Hall, mainly elaborating on Greek-Turkish relations. Minister Bakoyannis further gave a speech at the Strategic and International Relations Studies Center, in which she focused on the problems in the Balkans. At Georgetown University in Washington, the Minister spoke on relations between Europe and the United States. She attended a dinner given in her honor by the International Relations Committee of the House of Representatives. When a ministerial visit has come to an end and the minister and his delegation have departed, the embassy writes a summary

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about the visit and sends the report back home to the ministry. Some embassies, such as the Greek embassy in Washington, also put a summary of the visit on their web sites. Embassies are needed for the preparation and realization of visits by political leaders. The quality of the preparations often decides whether the meeting will be a success or not. Therefore, it is in the best interest of a political leader to make use of the familiarity of his embassy staff with the host country. The local knowledge of the embassy is also useful during the visit because it helps to avoid unnecessary tensions.

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Chapter 11

Inside an Embassy

Similarities and Differences Not all states have reason and the resources to establish embassies in all other states. Larger countries can set up embassies in many countries. The United States, for example, maintains 167 embassies, France 166, and Germany 145.1 Smaller states generally establish only a limited number of embassies, but wish to be represented in the capitals of the greater powers. For example, Island maintains 21 embassies abroad.2 Embassies differ in size, organization, and the way in which they operate.3 Large embassies have a staff of several hundred members, while small embassies may be composed of only the chief of mission, his deputy, and supporting staff. A large embassy can afford to set up many sections (or departments) and employ specialists. In small embassies, the diplomats have to focus on the basics of relations with the host country. Small embassies are, therefore, in many ways exempted from reporting, a task usually required of larger missions. Embassies are structured according to the interests that they represent. Since interests of countries differ, the organization of embassies differs. For many embassies, policies are still the core of their activities though high policy is often dealt with by officials at home. For embassies of developing countries in donor countries and for embassies of donor countries in developing countries, development cooperation is in the fore. Some embassies fulfill functions 205

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that others do not. For instance, only countries that actively fight narcotics production and trafficking establish drug liaison offices in their embassies, and they set up drug liaison offices only in countries where there is a particular need. The US embassies in Nigeria and Pakistan have drug liaison offices, for example. Some embassies perform very special functions. The German embassy in Stockholm has a forestry attaché; the US Embassy in Berlin has an office of the Internal Revenue Service, the American tax-collecting agency. Embassies of EU countries in other EU countries have noticed a shift of functions.4 EU countries no longer discuss only foreign policy issues, but also matters that have been considered part of domestic policies until now. The agendas at EU headquarters in Brussels, particularly those of the European Council and the Political and Security Committee, determine the issues to be pursued by embassies of EU countries in EU member states. It is important that the activities of the bilateral missions do not duplicate, but supplement the discussions between the permanent missions in Brussels. Therefore, the bilateral embassies must be continuously informed about the discussions in Brussels. Bilateral embassies of EU countries in EU countries can contribute to the discussion of EU issues because the decisions of member countries are prepared or made in capitals. It is the task of EU embassies to assess the position of the host government towards important policy issues and to lobby in favor of the sending government’s positions. Some EU members, such as Germany, have attached EU affairs officers to their embassies in other EU countries.5 In their daily work, embassies follow the rules established by their government. These rules of operation are contained in standing orders, manuals, or handbooks. Since these rules are of an internal character, many countries classify them as “for official use only”. However, the Foreign Affairs Manual and the Foreign Affairs Handbooks of the US Foreign Service are available to the public.6 It is reasonable to allow the chief of mission to determine the organization of the embassy, because he needs flexibility to react to changing demands. Foreign ministries encourage chiefs of mission to make use of their discretion in organizational matters.7 In practice,

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however, the ambassador’s impact on the structure of his mission is limited. It is the ministry of foreign affairs that decides on the staff plan and on the transfer of personnel. If the ambassador needs additional staff he has to submit a request to the foreign ministry. If the ambassador wants to move a staff member to another place within the embassy, he needs the foreign ministry’s approval in case the staff member was assigned a special function, such as cultural attaché or consular officer when he was posted to the embassy. In spite of their diversity, diplomatic missions everywhere perform the basic functions outlined in Article 3 of the CDR, which were explained previously in Chapter 3. This orientation is reflected in the embassies’ organization. Thus, their overall structures are similar. Larger embassies may have sections for the following areas: — — — — — — — —

Political affairs; Economy and trade; Development cooperation; Cultural matters; Public relations; Defense questions; Consular and legal matters; Administrative affairs.

Some embassies also have intelligence units. It used to be difficult for the public to learn about an embassy’s structure. Today, however, many embassies reveal details of their organization on their web sites. In the following paragraphs the web sites of the United States embassy in Berlin, the British embassy in Washington, and the German embassy in London will be used as examples.8 The Ambassador The ambassador has always been the center of attention in diplomacy, and rightly so. Only he has been explicitly accepted by the receiving country; only he has presented full powers to the head of

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state of the receiving country. Therefore, he is responsible to the host government for his embassy’s activities. He is also responsible to his own government, which has sent him as chief of its diplomatic operations to the host country. He performs mainly two functions, a political one and a managerial one.9 In spite of strong competition from summit meetings, direct contacts between statesmen, special missions, and contacts between agencies outside of diplomatic channels, the ambassador continues to play a policy role. It is his privilege to determine the course of the policies of his mission in the host country. He does so on the basis of the foreign policy interests and goals of his country and the instructions that he has received. How much leeway he enjoys depends upon the circumstances. If his foreign ministry has the practice of giving free reign to its chiefs of mission the ambassador will be in a position to leave his mark on policies vis-à-vis the host country. If relations between his country and the host country are not close, he will also be able to make important decisions. These are the advantages of faraway posts. The ambassador is in a less favorable position when his superiors at home keep a tight reign over his actions or if the policies towards the host country have been fixed in detail over the years. The ambassador is, however, still the man on the spot who translates his country’s policy into action. In a small embassy the ambassador might have to head a section of the embassy in addition to his other duties. In these cases, the ambassador tends to show preference for political work. If, however, economic relations are predominant, the ambassador might head the embassy’s economic section. In a larger embassy, the ambassador is mostly busy coordinating the work of his staff and handles only the most important issues himself.10 In such a case, he keeps contact with the host government and reports to his foreign ministry. Since only he is received by the leadership and high officials of the host country, he has to step in whenever contacts at a high level are required. When, for example, his staff does not succeed in solving a problem on the working level, the ambassador has to tackle the matter. While he may not follow the example of a 16th century Venetian ambassador to Rome who sent 472 reports

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in 12 months, the modern ambassador of a large embassy contributes substantially to the collection of information and its reporting back home.11 Public relations are also a field where the ambassador is in demand. At times, the ambassador may have to publicly explain his country’s policies in interviews and background talks with the press or in contributions to radio or TV debates. The modern ambassador also uses information and communication technology such as the Internet to address a larger audience. For example, many ambassadors publish their CVs and texts of their speeches on the web sites of their embassies. The ambassador not only is busy streamlining the work of his staff, but also makes substantial contributions to his embassy’s output. The ambassador depends on the contacts that he has succeeded in establishing in a host country. Many contacts are good; a few close contacts to the center of power are even better. Therefore, the ambassador is often out of the office and talking to government officials, political leaders, and important personalities. He delivers speeches, gives interviews, attends meetings with other ambassadors, and takes part in social gatherings. When he sits behind his desk in the chancery, the ambassador is running the embassy. This means, in practical terms, that the ambassador consults and cooperates with his staff, thus guiding the work of the embassy. The ambassador can run the embassy efficiently only if he has leadership qualities. The ambassador has various tools at hand to steer the embassy’s course. He holds regular meetings with the heads of his embassy’s sections. These staff meetings are called “morning prayers” in the British foreign service,12 while in the German foreign service they are known as “Morgenandacht”. The ambassador will also consult with individual staff members if the need arises. An experienced ambassador will listen carefully to the advice he gets from his staff. As chief of mission, the ambassador must also see to it that he views important correspondence. On incoming mail he can mark whether he wants to sign the answer or wants to see the answer before it leaves the embassy. He can also give instructions indicating that he wants to discuss the issue with his staff

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member in charge. As bureaucracies, embassies have catalogues for appropriate notes in the margins. It is equally important that the ambassador sees all important outgoing mails. He will insist that he signs important reports to his foreign ministry himself. He is well advised also to insist on initialing all important notes verbales addressed to the foreign ministry of the host country, because he is answerable to the host government for the contents of these notes. Some foreign services show a tendency to break up hierarchical structures by giving their ambassador the role of a coach. In view of his double responsibility towards his own and the host government, there are limits to downgrading an ambassador’s role. In the end, it is the ambassador who makes all final decisions. Once a decision is made, the ambassador has to be sure that the staff implements it in a loyal way. As was previously mentioned, an ambassador has the final decision only if his authority over all members of the staff is assured.13 The US Foreign Affairs Manual clearly states the extent of the ambassador’s authority as follows: “The chief of mission’s authority encompasses not only the personnel of the Department of State and the Foreign Service, but also personal representatives of other United States Executive Branch agencies (excluding those personnel under the command of a US area military commander) which have programs or activities in the country”.14 The Political Section Diplomatic relations are established in order to promote interests and goals of states. Thus, diplomatic relations are by their nature political. This is the reason that the political section of an embassy, in the British system called the chancery, continues to be the core of the embassy. The diplomats in an embassy’s political section perform various functions. First of all, they explain their country’s policies and try to solicit support for these policies. The scope of policies that political officers are dealing with is wide. They take up bilateral and international issues. A diplomat may try to win the support of a host country’s government for the candidature of a

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citizen of his own country for a position in an international organization. He may ask for the help of the host government in a kidnapping case. He may try to enlist the host government in efforts to prevent the proliferation of weapons of mass destruction. An embassy’s political officers have another task: They collect politically relevant information in the host country, analyze it in the perspective of their own country’s policies, report it back home, and add policy proposals. Reporting home is a key function of the embassy, particularly of its political section. Political officers are interested not only in foreign policy issues, but also in the host country’s domestic policies. For example, when an election is approaching in the host country, the political officers will try to predict the outcome and assess how it might effect relations with their own country. If the host country’s government is unstable, the political officers will try to assess whether that country is still a reliable partner and to what extent it needs or deserves support. After a coup d’ état has happened, the embassy will submit suggestions on how its government should deal with the new regime. “Even the corridors of minor powers are never dull”.15 Embassies do not play on home turf. Therefore, it is indispensable for the embassy staff to acquire local knowledge. The staff members need to study the host country’s language, culture, history, politics, and practices. It is also helpful to understand the host country’s social customs, patterns, and etiquette. Only on the basis of a thorough understanding of the host country can an embassy’s political section give assessments and make suggestions with a sense of confidence. Local knowledge must be accompanied by contacts that are useful as sources of information. Access to the bazaar of rumors is easy; each cocktail party provides an opportunity to pick up the latest talk of the town. It is, however, a demanding task to establish reliable contacts with governments, parliaments, and non-governmental institutions of all kind. In authoritarian countries information gathering can be quite difficult, and political officers have to rely, to a large extent, on open sources. To establish and maintain contacts on a working level is the duty of the political officers. Information acquired from high-level

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contacts by the ambassador or the deputy chief of mission (DCM) has to be considered as well: Good results are achieved if the information known to various members of the staff is pooled. Therefore, an embassy must work as a team. Large embassies employ several officers in the political section. In small embassies only one or two of their staff members work in the political section. It is the responsibility of the political section to report on human rights affairs and promote democracy. An embassy avoids friction with the host government as long as it reports only internally on human rights problems in the host country. If an embassy goes further, for example, by supporting local human rights groups, tensions with the host government may occur. The latter might even call the human rights activities of the foreign embassy interference in domestic affairs. The cooperation with the government is, however, necessary if a positive result is to be achieved. Therefore, access to the political leaders of the country is crucial. Occasionally, an embassy intervenes in special human right cases, either upon instruction from its ministry of foreign affairs or of its own volition. John H. Crimmins, US ambassador to Brazil from 1973 to 1978, recounts that his embassy intervened approximately halfdozen times a year in human rights cases.16 The embassy took up those cases of alleged bad treatment of a person when a particular American interest could be claimed. The Brazilian government never declined to discuss these cases by referring to the principle of noninterference. William B. Edmondson, US Ambassador to South Africa from 1978 to 1981, reports the same.17 Though he often explained American concerns regarding the practice of apartheid, South African officials listened without calling his demarches interference. The Afrikaans-speaking press, however, attacked him. Smith Hampstone, US Ambassador to Kenya from 1989 to 1993, illustrated how deeply involved an embassy can become in the promotion of democracy. He publicly advocated democratic reforms, and the government of President Daniel arap Moi often answered publicly.18 Ambassador Hampstone suggested that aid to Kenya should be linked with human rights and democracy. He criticized the harassment of politicians belonging to the opposition.

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He demanded an end to torture and the release of political detainees. It is not surprising, then, that he came under criticism from the Kenyan government, which accused him of stirring up opposition to Moi’s rule. The Kenyan foreign minister called him a “racist” and compared him to a “slave owner”.19 The headline of a Kenyan newspaper suggested, “Shut up, Mr. Ambassador”.20 Finally, the Kenyan government suggested the US government recall Ambassador Hampstone.21 Since the ambassador had expressed US policy, however, the US administration had no reason to dissociate itself from him. Though the ambassador felt that he was not always sufficiently supported he finished his term in Nairobi.22 After Harold Macmillan became British prime minister in 1957, the story goes that he was asked what would determine his foreign policy. He allegedly answered “Events, my boy, events”. The same can be said with regard to an embassy. Its subjects and its workload are determined by the coming and going of events. Among these events, visits to the host country from the home country stand out because their preparation is time consuming. This is particularly true if official visitors are expected, for example, the head of state, the prime minister, the foreign minister, other cabinet members, members of parliament, and chief executives of federal states (for example, governors in the American case). The challenge that such an official visit presents to the embassy was already highlighted in Chapter 10. An embassy also has to take care of unofficial visitors, including scholars, church leaders, business officials, trade union leaders, and journalists. Official visits abroad have become popular. Foreign ministries try to cut down the number of official visits by agreeing only to those that are justifiable in terms of the benefit they might bring to foreign policy interests. As experience has shown, however, foreign ministries seldom withstand political pressure and thereby end up clearing most requests for official visits. The Economic and Commercial Section Economic cooperation requires that the economic and trade section is up to date on economic developments in the host country and at

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home. It is, therefore, necessary that the economic section continuously studies the host country’s macroeconomics. The officials working in this section have to be in close contact with the institutions that produce economic statistics and with experts in banks and ministries who know how to interpret the statistics. Many embassies have to report regularly on the economic development of the host country, using reliable statistics. In some countries, such as North Korea, access to reliable statistics is extremely difficult to gain. In such cases, it might be impossible to assess the country’s economic situation correctly. Important economic events have to be observed and reported. Such events include revaluation or devaluation of the local currency, the publication of a new national budget, a dramatic increase in the foreign currency reserves, changes in the banking system and the tools of financial policies, or changes in large programs for public spending. The economic section also does all sorts of interventions when a host country’s policy threatens, endangers, or harms the economic interests of the sending country. For example, embassies fight trade restrictions, asking the host government to dismantle trade barriers. They also fight against violations of intellectual property rights such as counterfeiting, trademark infringement, or the lack of protection of pharmaceutical products. An embassy that promotes trade and investment is busy dealing with visitors. Businessmen from home and from the host country come to the embassy for advice. Those who want to sell their products are looking for distribution channels. If they want to buy certain products, they need information about the manufacturers of those products. They also inquire about trade fairs and how to use them. They want to know the legal framework for doing business in either the receiving or the sending country. Sometimes they seek help in establishing business contacts. If they want to invest in the host country they may seek information about the country’s political and economic conditions and stability. Sometimes businessmen from home ask for support in a business deal. In some countries, it is important to observe the communication, transportation, maritime, and energy policies. To ensure that

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this task is done thoroughly, experts may be attached to an embassy. The British embassy in Washington, for example, has a transport section, because the United Kingdom has important transport interests in the United States, including air services and maritime affairs. The promotion of the trade of agriculture products, particularly of food, is also sometimes done by experts.23 The US embassy in Berlin has, for example, an office of agriculture affairs that promotes US food and forest product exports to Germany. In regard to science, embassies try to promote exchanges by offering scholarships and facilitating and financing contacts between students, scholars, and academic institutions. These activities used to fall under the responsibility of an embassy’s cultural section. Today, science and technology have reached a dimension that makes international cooperation indispensable. Issues such as communications, space technology, the peaceful use of nuclear energy, missile technology, and the protection of the environment (e.g. combating problems such as global warming and decreasing bio-diversity) must be tackled jointly. Some embassies, such as the German embassy in London, have a separate section dealing with these issues. Other embassies, such as the US embassy in Berlin, charge their economic section with taking care of scientific, technological, and environmental questions. The US government has set up regional environmental hubs at 12 embassies to assess environmental problems on a regional basis.24 Development Assistance All embassies are different. A diplomat from an industrialized country who is transferred to a developing country after having worked in another industrialized country will feel the difference. His focus changes: He can no longer afford to observe and analyze the dynamics of local politics and intervene only if his country’s interests are at stake. Working in a donor country’s embassy in a recipient country means becoming deeply involved in the host country’s development policies.

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In 1960, Eugene R. Black, a former president of the World Bank, gave the following description: “The development diplomat must fill the gap between the conventional diplomat and the trader and the investor. His aim should not be commercial or strictly economic; but neither should he be concerned with the narrow political objectives that sometimes overburden the regular diplomat. The development diplomat should be a man with a vocation, rather than a man with immediate terms of reference. As an artisan of economic development he should use the tools of economics and other disciplines as best he can to place in perspective, to shed light on and to illuminate the choices before the decision-makers in the underdeveloped world”.25 Though this description sounds somewhat romantic, it reflects the unusual challenge and attraction for those working in the field of aid. They are guided by the satisfying feeling of contributing to the improvement of the economic and social condition of the host country. Some reservations about development assistance are necessary, however. The bulk of the work in cooperating with developing countries is done by the various development agencies that the industrial countries have set up. In addition, donor countries channel a substantial amount of their aid through NGOs to developing countries.26 What is left over differs according to the way that donor countries have chosen to manage their development assistance. Therefore, the activities of development cooperation sections of embassies are in no way the same. It can be said, however, that aid sections of embassies have a supporting function. Donor countries prefer that recipient countries first formulate a strategy for their fight against underdevelopment before development aid is discussed. This at least used to be the approach chosen by bilateral and multilateral donors. It is often watered down when developing countries have weak governments. In such cases, the donor community and the NGOs call the shots. Donor countries also used to insist that agreements with recipient countries be concluded to establish framework conditions for the aid. Concrete projects develop in various stages. Taking the initial step of formulating a development project gives an embassy the

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best opportunity to influence events in the recipient country. Before the government of a recipient country suggests a project formally, it might sound out the donor country’s embassy’s reaction to the proposal. In many cases, the recipient country has to file an application for technical assistance with the embassy. The embassy then considers whether the project is useful for the host country, whether it is feasible, and whether it fits into the budget and policies of the embassy’s home country. If the embassy decides to pursue the project, it submits the project to its authorities at home, accompanied by a report that contains its comments. After the project has been accepted by the competent authorities of the donor country, the embassy is often involved in the negotiations, which are concluded by a formal agreement.27 In many cases, the ambassador signs the agreement on behalf of his government. After the implementation of the project starts, the embassy follows its progress and assesses the effectiveness of the development assistance. This stage is often the most difficult one. Frequently, the embassy’s aid officers have to remind the host government to make its contributions and fulfill the conditions laid down in the agreement for the project. For example, the embassy tries to assess whether projects of technical assistance, that is, projects aiming at improving the capacity of persons and organizations, fulfill their pilot function by asking the host government to replicate the projects. When a project fails, it is the embassy’s duty to suggest remedies or to discontinue it. Many developing countries receive development assistance not only from individual states, but also from international governmental organizations, such as the United Nations Development Program (UNDP), the United Nations Population Fund (UNFPA), the United Nations Children’s Fund (UNICEF), the World Bank, and the European Union. A number of mechanisms have been set up in some capitals of developing countries to coordinate the activities of the various donors. The aid officers represent their embassies in these joint committees. Some countries, such as Germany, have authorized their embassies to decide whether to pursue small technical assistance projects without first clearing the projects at home. The

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implementation of these projects is left to the embassies as well. This form of development assistance has been successful because it can be rendered quickly and effectively. When proposing and implementing small projects, an embassy’s aid officer can use his creativity to alleviate poverty and remove its cause. Working in an embassy’s development cooperation section is tough, but can be rewarding. The Cultural Section Countries that attach great importance to promoting cultural relations with foreign countries engage in these activities through their cultural institutions and organizations abroad rather than their embassies.28 What is left to do for the embassy differs. The British embassy in Washington does not identify a cultural section on its web site, but does provide a link to the British Council in Washington. Indeed, the British Council is the United Kingdom’s “main vehicle for cultural relations with other countries”.29 In the US embassy in Berlin, the public affairs section is in charge of promoting cultural relations. The German embassy in London has a separate cultural section. An embassy’s cultural activities, in cooperation with various cultural institutions, and within the limits of its budget, are intended to pursue various goals. The embassy wants to present its country’s culture in the host country and will, therefore, arrange a lot of events, such as concerts, theater performances, film shows, expositions of paintings, book exhibitions, readings by a poet, and seminars. An embassy might initiate an exchange of youth groups or sports teams. It may also promote cultural exchanges by awarding scholarships and initiating joint research projects. Some countries, and accordingly their embassies, promote the knowledge and spread of their language. They maintain their own schools abroad or support international schools that use their language to conduct classes. They also see to it that their language is taught as a foreign language in the schools of the host country, and they may conduct training programs for foreign teachers. The broad appeal

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of the English language makes cultural work for English speaking countries easy. Countries that promote other languages, such as French or German, have to face a tough challenge. France tried to overcome this challenge by providing a cultural alternative and highlight cultural differences.30 The embassy’s cultural attaché has to coordinate the various activities. He does so on the basis of a framework that has been worked out for the home country’s cultural policy in the host country. He sees to it that the cultural activities in the host country are in agreement with his country’s overall foreign policy. He also observes cultural life in the host country and reports on it, thus enabling his foreign ministry to decide on framework conditions and the budget. He can do so effectively only if he has established close contacts with the representatives of cultural life in the receiving country. The cultural attaché is basically a coordinator, but particularly in the absence of cultural institutions of his own country he has the chance to demonstrate his creativity. The Public Affairs Section The public affairs officer used to be the press attaché. He tried to influence public opinion in the host country via that country’s media, particularly the press. Only recently has digital diplomacy supplemented traditional media work, giving embassies a chance to directly address a broad public in the host country. Media work continues to be done by embassies and forms an important part of an embassy’s public affairs efforts. Embassies distribute releases and other publications to the press, taped programs to radio stations, and film and TV programs to TV stations. The public affairs officers are in contact with the media personnel of the host country and are ready to give briefings or interviews. By appearing on a radio or TV show, the ambassador or a member of his staff can reach a broad public. Access to these media can be achieved, however, only in exceptional situations and seldom on a regular basis. Therefore, it is still important that diplomats talk to the press.

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When the Prussian minister to the Holy See, Kurd von Schloezer, complained in a report about his experience with a journalist, Chancellor Otto von Bismarck answered on March 3, 1887 that von Schloezer’s “experience with the ‘New York-Herald’ has confirmed my conviction that one seldom gains something if one gets involved with journalists in a private discussion. I have established the rule for myself to never receive these people without witness. Otherwise one is completely helpless against their publications if they are biased in an undesirable or wrong way either because of lack of understanding or honesty”.31 The chancellor’s remarks sound somewhat outdated in these times when diplomats and journalists often work closely together. The chancellor’s basic argument, however, still stands: If an ambassador or another diplomat is to be quoted in the press it is crucial that he avoids misunderstandings and misrepresentations. A safe way for him to proceed is to ask the journalist to submit a questionnaire in advance. During the subsequent meeting, the journalist is handed the diplomat’s answers in writing and allowed to add some questions orally. When a diplomat offers background information he must be sure that his wish to speak off the record is respected. It is, therefore, important that the public affairs officers know the journalists in town. Foreign ministries encourage their missions abroad to talk to the journalists of the host country, but are sensitive about remarks their diplomats make on the record to journalists of the sending country. Foreign ministries are afraid that diplomats abroad who are not familiar with the details of the thinking and arguing at home may make remarks that embarrass their own government. Since it is not possible for the diplomats abroad to avoid cooperating with their own country’s journalists, they will insist on giving only background information that may not be attributed to them. This procedure is, in practice, acceptable to both sides. Embassies have tried to find ways to be in direct contact with the host country’s public. To this end, they distribute magazines and brochures, organize lectures and seminars, set up friendship associations, and give interviews to the media. Meanwhile, the

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Internet has given embassies additional possibilities to supplement their public relations efforts, and therefore many embassies have web sites. The Spanish embassy in Ottawa, under the leadership of Ambassador Jose Luis Pardos, has been credited with having been one of the first embassies to make use of the Internet. It did so during the so-called Canada-Spain fish war.32 On March 9, 1995, the Canadians seized the Spanish trawler Estai in the North Atlantic just outside Canada’s exclusive economic zone. In it they found an illegal-sized net that had been used to catch small, immature, protected turbot. Canada defended its action as an effort against overfishing. The Spanish embassy in Ottawa put its information service “Si, Spain” on the Internet and countered the Canadian accusations by calling the use of force illegal with respect to traditional Spanish fishing rights at the Grand Banks. “Si, Spain” used tough, emotional language and even personally attacked Brian Robin, the Canadian minister of fisheries and oceans. This undertaking was an effort to reach beyond the government by contacting the Canadian public directly. According to Canadian observers, however, the effort did not succeed in mobilizing the Canadian public.33 Many diplomatic missions have their own web sites and use them to disseminate information. This information consists partly of practical data: for example, about the mission and its officers and how to contact them, about commercial, visa and consular, cultural and information services, and about frequently asked questions (FAQs). But missions also use their web sites to disseminate information about their country’s policies. They address this information to the public. Thus, an attempt is made to directly influence public opinion in the host country, to win it over, and to improve the sending country’s image. Public diplomacy tries to reach beyond the receiving country’s government by addressing a broad public audience. For a web site of a diplomatic mission to be good the contents and presentation are crucial. The web site must be up to date. However, it is demanding to update a web site in such a way that

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reflects the changes that happen day to day. An embassy’s web site should be visually appealing and easy to navigate. In addition, a foreign ministry and its missions abroad should avoid the dissemination of different information. The centralization of information on policies is one alternative to avoid confusion: Diplomatic missions do not give information on policy issues on their web sites, but instead provide links to their foreign ministry’s web site. The information distributed by foreign ministries, however, is vast. Therefore, many missions prefer to disseminate more specific information that is relevant for the relationship with the host country. The Military Attaché Smaller embassies have one military officer attached to their staff; he is called the military or the defense attaché. Larger embassies have officers from various military services, such as the army, the navy, and the air force, among their staff members; these officers are called the service attachés. A military attaché’s work is determined by the military relationship between his country and the host country. Military attachés working in an allied country have close contact with the military leadership of the host country and focus on deepening cooperation. That is, for example, the way in which the US embassy in Germany defines its military activities, as both the United States and Germany belong to the NATO alliance. If the military relationship between the two countries is not as intense, the military attaché will focus on being a military liaison to the armed forces of the host country. Embassies located in areas of military tension, such as the Middle East, South Asia, and the Korean peninsula, will appreciate the presence of a military attaché among their staff. His expertise is helpful in assessing the military situation. Military attachés everywhere do what they do best: observing the military and strategic situation, analyzing it, and reporting it back home. They deal with many issues, such as the strength and the deployment of military forces, command structures, leadership, training, strategic planning, weaponry of the host country’s forces, the defense industry,

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and the defense budget of the host country. They carefully observe any changes and try to assess them. On July 9, 1870, the Prussian military attaché in Paris, Count Waldersee, reported to Berlin that France had started preparations for a big war.34 Only hours after the French government had begun the mobilization of French troops on July 14, 1870, the attaché reported that troops had been mobilized. In the age of satellite reconnaissance, military attachés no longer have the chance to make a similar discovery. They are concerned instead with questions of detail, using open and not-so-open sources, such as handbooks and service regulations. Some countries also charge their military attachés with sales of weapons. The military attaché of the US embassy in Berlin, for example, promotes sales of defense articles, services, and training to Germany. The duties of a military attaché are no longer restricted to “study the character of those who might be put in the future at the head of hostile or allied armies”, as von Massenbach suggested in 1800.35 The responsibilities of a military attaché have become broader as a result of the dramatic expansion of “that miserable condition of Warre”.36 The Administrative Section The administrative section keeps the embassy going. Its supporting activities are important because they enable the embassy’s other sections to function. Embassies seldom publicize their administrative activities. The US embassy in Berlin, however, presents the following summary: “The Administrative Section is responsible for managing the embassy’s day to day operations. The administrative section focuses on financial affairs, communications, facilities maintenance, procurement and contracting, and personnel”.37 In keeping the embassy running, the administrative section has to rely on many contacts with local authorities. In some countries it has to fight daily battles with these authorities. Besides taking care of the daily routine, the administrative section provides the material basis for the embassy’s functioning.

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The administrative officers look after the premises of the embassy, its installations, and its equipment. They see to it that the facilities are well maintained. They have a special obligation to oversee the procurement, maintenance, and operation of duty cars. The administrative section also manages the embassy’s budget. It pays the embassy’s bills and does the bookkeeping. It is also responsible for matters pertaining to the staff. Newly arrived staff members have to be integrated into the embassy’s team. They need accommodation and advice on questions of health or schooling. In addition, leave has to be approved and temporary replacements organized. Local staff members have to be hired and sometimes fired. Finally, the administrative section is responsible for the embassy’s communications. It manages the embassy’s correspondence, archives, cable room, and incoming and outgoing pouches. When performing its duties, the administrative section has to comply with the many special regulations that have been laid down by its home government. These regulations differ from sending country to sending country. Particularly important are the regulations concerning the security of classified material. These regulations are uniform for all branches of government, but are of special interest for embassies because embassies handle a substantial amount of official information that needs protection. Most countries consider their security regulations as restricted and do not publicize them. The government of New Zealand has, however, presented its manual “Security in the Government Sector” on the web.38 This manual gives insight into the possible ways to protect official information. Therefore, it is used as an example in the following. Information that needs protection is contained in hard copy, electronic form, and equipment. The protected material handled by embassies consists mostly of instructions, reports, and code material. An information’s contents determine whether it is classified; the grade of classification depends on the estimated danger that disclosure would bring to bear on the country’s security, defense, or international relations. If the compromise of information would damage the national interests in an exceptionally grave manner, the

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material must be classified as TOP SECRET; in case of possible serious damage, the classification must be SECRET; in case of possible significant damage, the classification must be CONFIDENTIAL. If the compromise of information would be likely to affect the national interests in an adverse manner, the classification RESTRICTED must be used.39 The manual lays down guidelines for classification, the necessary clearance levels, manual transmission, and manual storage. It also allows the electronic transmission and storage for all grades of classified information, provided the information is encrypted. New Zealand’s manual also warns against over classification.40 Indeed, over classification seems to be a problem for some foreign services.41 On the other hand, embassies of other foreign services are not inclined to over classify documents: The higher a document is classified the more tiresome it is to handle it. The same can be true with ICT-supported communication. When the Canadian foreign service demanded that each single official had to classify his own documents classification levels went down. It was too complicated to use the procedures for classified material.42 Those officials who handle classified material must have the necessary security clearances. The security of information is enhanced if classified material is only accessible to those who need to know it.43 These principles are generally applied by all governments. Especially sensitive to breaches of security regulations is the cable room that contains the embassy’s cipher system.44 The ciphers and the machines that apply them are highly classified material and therefore need rigorous and constant protection. It is the duty of the administrative section to ensure the security of these installations. It is safe to assume that classified material is occasionally mishandled. The Indyk case provides some insight into this matter. In September 2000, Martin S. Indyk, US Ambassador to Israel, was relieved of his post and his security clearance was lifted, because he had allegedly mishandled classified materials.45 He was accused of having used an unclassified computer for writing classified documents and of having taken classified documents home to work on them. Apparently, this practice was common among US diplomats

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at that time. During the subsequent security crackdown the promotion of more than 200 senior State Department officials was frozen. Finally, on October 11, 2000 Ambassador Indyk’s security clearance and his status as Ambassador to Israel were restored. Lapses of security regulations must be fought, but perhaps not in the drastic way the State Department handled the Indyk case. As long as no secrets are disclosed, a policy of reminding the foreign service staff of correct procedures might do. The Intelligence Unit Many embassies have an area that is not accessible to most of their staff members. This is the part of an embassy that houses the intelligence unit. Many countries assign intelligence officers to their missions abroad.46 For example, the intelligence officers in an embassy of the United States belong to the CIA, in a British embassy to MI 6, and in a German embassy to the Federal Intelligence Service (Bundesnachrichtendienst). In some countries, the host government is informed as to the identity of the intelligence officers. Otherwise, their identity is masked. They are, for example, called “counselors for regional affairs” or are in charge of “political liaison”. Their inclusion in the embassy staff gives them diplomatic protection. The work methods of intelligence officers differ from those of other embassy staff because they try to find out clandestinely the secrets of the host country by using special technical devices and agents. There are many subjects that governments consider important enough to use clandestine methods. Information on the production of weapons of mass destruction and of missiles or on the activities of terrorist cells in a host country, for example, may have an impact on the sending state’s security. Therefore, many governments insist on attaching intelligence officers to some of their embassies. Intelligence units have a tendency to be somewhat detached from the embassy and are not under full control of the ambassador. The regulations of many countries exempt the intelligence units

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from submitting their reports to the ambassador for approval or comments. Instead, they report directly to their agencies at home and have their own communication facilities for that purpose. They are often tight-lipped in discussions with the embassy staff since they have to protect their sources. There is often distrust between intelligence officers and diplomats. The following story sheds light on this tension, though the officials did not belong to the same country: In August 1962, the embassy of the Federal Republic of Germany in Havana reported that Soviet medium-range missiles had been unloaded at a Cuban harbor and that Russian soldiers were stationed in that country.47 The German government forwarded that information to the US government. The CIA reacted by warning the German embassy in Cuba against speculation. The Cuban missile crisis followed soon. Ambassador Dobrynin, in writing about his relations to the KGB residents at the Soviet embassy in Washington, argues that the respective spheres of competence of intelligence officers and diplomats should not overlap.48 This objective, however, is difficult to achieve, since intelligence officers and diplomats all try to observe and assess the same developments in the host country. Therefore, there is a need for them to cooperate within an embassy. If they do not cooperate, the risk remains that the embassy will disseminate different views on the same subject in the host country and report different assessments back home, as Dobrynin correctly observes. As practice has shown, it seems to be difficult to enforce coordination by rules alone. Cooperation and coordination depend largely on good relations between the ambassador and his station chief.

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Chapter 12

Consular Functions

A Dimension of Diplomacy Consulates are mini-embassies. Consequently, consulates are organized similarly to embassies. Besides a specific consular section, consulates often have sections for commercial, cultural, and press and information affairs.1 In these sections exactly the same type of work is done as in an embassy, however, restricted to the needs of the consulate’s district. Some consulates, for example, the American consulate general in Osaka-Kobe, the British consulate general in Shanghai and the German consulate general in Barcelona have sections that are charged with political work. Some consulates, which do not have a political section, also do political work. They talk regularly to politicians and report about political developments in their district. In large countries or in countries with strong regional tensions it is important that political developments outside the capital are observed and added to the embassy’s reporting. The government of India stresses the diplomatic functions of its consulates general in the United States by calling them “regional Diplomatic representatives covering different parts of the US”.2 Whether the consulate reports on policies in the host country to the embassy or directly to the foreign ministry at home has to be decided by internal regulations. The American system, for example, allows both ways of reporting.3 Sometimes consuls go public with political statements. Here are some examples: In December 2000, the Japanese deputy 229

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consul general in Karachi talked to the leader of an Islamic political party on recent developments in Afghanistan.4 In March 2002, the British consul general in Istanbul stated that Turkey’s future depended on EU membership for which it had the support of the British government.5 In June 2002, the US consul general in Mumbai (Bombay) stressed that the US and India would cooperate more on the naval front.6 In August 2002, the Cameroon consul in Calabar (Nigeria) refuted news in the press that his country was preparing for war over the oil-rich Bakassi Peninsula.7 In an interview with the local media in October 2005 the Iranian consul general in Peshawar (Pakistan) confirmed Iran’s right to pursue its peaceful nuclear program.8 Israel’s consul general in Chennai told reporters in February 2006 that the international community should be firm against Hamas.9 In a public speech in September 2006, Mexico’s consul general in San Francisco slammed the US border policy, particularly the crackdown on illegal immigration from Mexico.10 In December 2006, a consul of the US consulate general in Chennai called the partnership of the United States with India vital for America’s “core foreign policy”.11 No doubt, consular relations are a dimension of diplomacy. Political reporting by a consulate may sometimes create conflicts between the consulate and the embassy. A former consul of the United States gave a striking example.12 At the end of the 1960s and the beginning of the 1970s the US consulate general in Dacca (East Pakistan) reported about the Bengali desire for autonomy and predicted a civil war in the case that the central government continued neglecting the Bengal’s interest. The embassy in far away West Pakistan reported that the central government was strong and opposed to any compromise. The conflict between the embassy and the consulate general reached dramatic proportions; the consul general was finally moved. Turf battles between bureaucratic agencies are common and apparently difficult to suppress. Conflicts between an embassy and a consulate are particularly deplorable. Not only do they cause frictional losses, but may impair the efforts to put up a united front in the receiving country. If the government in the host country becomes aware of the split between the embassy’s and

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the consulate’s opinion, it may make use of the situation. It is, therefore, urgent to guarantee close cooperation between the embassy and the consulates under its supervision. Regular contacts between the embassy and the consulates, visits of the diplomatic personnel to the consular post, and consular conferences organized by the embassy are helpful. Such a conference would include all heads of career and honorary consular posts in the host country. The ambassador and the heads of the embassy’s various sections would deliver speeches to pass on information and new policies. The head of the embassy’s consular section or another experienced career consul would explain new regulations and practices. A consular conference can contribute considerably to making the various members of the embassy and the consulates feel that they belong to a team. The attitude of the ambassador and the consul are crucial. If the ambassador is generous and shows his appreciation of the consulate’s work by giving it a lot of leeway, smooth cooperation can be hoped for. Article 17, para. 1, of the CCR stipulates that a consul may perform “diplomatic acts” in case his country has no diplomatic mission in the receiving country. Performing diplomatic acts means filling in for the missing ambassador by negotiating with the central government of the host country. The aim of Article 17 is to make it clear that in such a case the status of the consul is not changed and that he is not granted diplomatic privileges and immunities. Though there are similarities of the functions of consuls and diplomats, the consul working at a consular post is not a diplomat in terms of the CDR. Specific Consular Functions Though a consul may perform diplomatic functions, he typically exercises specific functions different from the general duties. In this specific capacity, the consul is the mission’s contact person for individual cases. He is his countryman’s friend in need and the foreigner’s intermediary. Consular work in this specific sense is done in consulates and in consular sections of embassies. Article 3,

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para. 2, of the CDR expressly confirms that consular functions can also be performed by a diplomatic mission. The Convention on Consular Relations (CCR) defines the consul whom it calls a “consular officer” (Article 1, para. 1, lit. d) only indirectly: A consul is a person who exercises consular functions. The functions of a consul are, however, extremely diverse. According to a well-known statement by Talleyrand, they are infinitely diverse (“car les attributions d’un consul sont variées a l’infini”).13 Accordingly, the list of consular functions contained in Article 5 CCR is a long one and, as can be taken from letter m, not a final one. If one tries to reduce the specific consular functions to some common denominators the following duties stand out: — Protecting the interests of the sending state’s nationals, including assisting detained nationals — Performing administrative functions, including issuing visas — Exercising legal functions, including those linked to the administration of justice — Taking care of shipping issues.14 Thus, a consul in the specific sense of the word is an official agent of the sending country who protects the interests of his country’s nationals, performs administrative functions, exercises legal functions, and takes care of shipping issues in the receiving country. Consular institutions have their own history. They developed independent of diplomatic relations. The merger of the diplomatic and consular services that occurred in many countries in the first half of the 20th century blurred the difference between diplomats and consuls. A foreign service officer can once serve as a consul and later as a diplomat and vice versa. If a consular officer serves in an embassy his status is indistinguishable from that of his colleagues in the embassy who exercise diplomatic functions. According to Article 70, para. 4, of the CCR, the consular officer within an embassy enjoys diplomatic privileges and immunities. A consul needs a double set of authorizations. He can exercise his functions only if he has an authorization by his country’s legal

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system. He can, for example, only issue a passport or visa, act as a notary, supervise and inspect vessels or perform a wedding ceremony, if municipal law assigns these functions to him. Many countries have codified the main rules and regulations.15 The municipal consular laws and regulations are the basis provided by the home government for a consul’s activities. Since the consul operates in a foreign country he also needs an authorization by international law. Over the centuries bilateral treaties and international practice have been the basis for consular relations. Meanwhile the Vienna Convention on Consular Relations of 1963 (CCR) has largely substituted for bilateral agreements. Existing bilateral consular agreements remain in force and new ones can be concluded (Article 73 of the CCR). Since most states have become parties to the Convention, it has become the internationally recognized standard of consular relations.16 In the following text, the specific functions of consuls will be discussed. Protecting Nationals According to lit. a and e of Article 5 of the CCR helping and assisting nationals and protecting their interests belong to the consular functions. States make an effort to take care of their nationals who live abroad. A consul can support a compatriot only if he is aware of the fact that the latter is in trouble. Therefore, free communication and free contacts between the consul and his fellow countrymen are a prerequisite for consular activities. Article 36, para. 1, lit. a, guarantees these freedoms. What precisely consuls can do and to what extent they are obliged or have discretionary power to assist their nationals are up to every state to decide. Though consular laws of states differ, similar activities of consuls from different countries can be observed.17 Consuls give advice to their nationals on how to deal with local authorities. German consuls also advise German nationals on legal questions, particularly on those arising in connection with a move to a foreign country.18 British consuls cannot give legal advice.19

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Consulates provide lists of lawyers and doctors. Only in exceptional cases, when the national is absent or otherwise unable to defend his rights and interests, will the consul represent him or arrange his representation before the tribunals of the host country (Article 5, lit. i). Consuls take care of lost property of their nationals and will try to return the articles to their owners. When persons are missing consuls assist in finding out his or her whereabouts. It is a particular challenge for consuls to assist nationals who are in difficulties or distress. In 2007 the British government helped nearly 35,000 British nationals in serious distress abroad.20 That travelers run out of funds happens frequently; international tourism has multiplied these cases. When a tourist, who had not taken enough money along or who dropped his wallet or was the victim of theft or robbery, comes to the consulate asking for help, he will be told that the consulate is neither a bank nor a travel agency. The consulate will give him advice how to transfer funds, and how to contact relatives or friends. Only in exceptional cases will the consulate lend money, which has to be paid back. If a foreigner is involved in an accident or is a victim of an assault, his consul will take care of him and inform his relatives. If a catastrophe happens, if, for example, an aircraft crashes or a terrorist attack occurs, the consulate will try to find out whether some of its nationals were hurt and will set up a hot line for the relatives. When a severe crisis occurs, caused, for example, by a coup d’état, the diplomatic or consular mission will attempt to protect its nationals. In such a situation the consul is not left alone. All members of the mission’s staff will focus on managing the crisis. The Dutch foreign ministry has gone one step further. It has created a rapid deployment Consular Support Team that consists of approximately 20 officials who can be called from their posts anywhere in the world to assist Dutch citizens in case of a catastrophe.21 The first task in case of a crisis is to find out what is going on, whether the crisis will be quickly over or turns into a prolonged armed conflict. In such a situation, the exchange of information with other missions is helpful. The mission will also contact its nationals. This will be facilitated if the consul has an up-to-date

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list of his country’s nationals residing in the host country. It is, therefore, a useful step if expatriates register with their mission. Some countries, such as the United Kingdom, provide a web site that can be used to register contact details and travel plans online. If the armed conflict continues, foreigners will gather on the premises of their embassy or consulate since these are relatively safe places. Missions in countries that suffer from civil wars are better prepared to accommodate their nationals in times of a severe crisis. They need beds and/or mattresses, water, and food. It is a good idea to store military non-perishable rations. When no end to the fighting is in sight the mission has to organize the evacuation of its nationals. How this can be done depends on the circumstances. During the many crises in Zaire, foreigners could travel from Kinshasa to Brazzaville by boat crossing the Congo River. It was helpful if missions in Kinshasa, the capital of Zaire, had their own boats. Peggy Blackford was US ambassador to Guinea-Bissau during the beginning of the civil war in the summer of 1998. She recounts that most of the Americans living in the country boarded a Portuguese freighter that took them to Dakar (Senegal).22 Because the chaos in Guinea-Bissau made the work of the embassy impossible, the diplomats had to leave the country. Ambassador Blackford and her staff were picked up at an isolated dock in Bissau by a dinghy and brought to a tanker that took them to Banjul (Gambia). The provisions for repatriation of the CDR (Article 44) and the CCR (Article 26) are often irrelevant because there is no longer a functioning government in the host country that could provide the necessary assistance for the departure of the members of the mission. Unfortunately kidnapping cases of foreigners occur frequently. In Jordan, for example, several hundred abductions have been registered since the mid-1980s.23 Colombia is also marred by abductions. Kidnapping cases are challenging for consuls. The media report the kidnapping; the government of the sending country feels public pressure to free the hostage or hostages and passes the pressure on to its mission. The relatives of the kidnapped person also

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urge the consul to do his utmost. Since it is the task of the law enforcement authorities of the receiving country to cope with the crime, the consulate will focus on requesting the host government to investigate the case, find the hostages, and get them released unharmed. The consulate uses all its contacts to government officials, who can be helpful, and try to influence developments to rescue the hostages. When three Indonesian seamen were abducted in the Philippines in May 2005, the Indonesian embassy in Manila not only contacted the foreign ministry, but also the chief of army staff.24 Indonesia was convinced that the Philippine military could help to get the hostages released. Sometimes the kidnappers turn directly to the embassy or consulate to play it off against the host country’s government. The consular officials may hesitate to enter into direct negotiations with the kidnappers since it is the responsibility of the host country to deal with the case. If the kidnappers are known and have put up demands for the release, the consulate may have a chance to mediate. After several Indonesians had been kidnapped in the Philippines in the summer of 2002, the Indonesian consul general asked for the safe return of his compatriots, but left the decision on ransom payment to the Philippine government.25 Governments typically declare not to give in to the demands of the kidnappers and not to pay ransom, but they do not always stick to this policy. If the kidnapping is of a terrorist or political nature, the chances of the consulate to influence events are limited. Sometimes the victim or victims can be freed, sometimes all efforts of the consulate and the host government are in vain. The 1995 Kashmir Kidnapping case had a tragic end.26 In July 1995, a group calling itself “Al-Faran” kidnapped six Western tourists, two Americans, two British, one German, and one Norwegian in the part of Kashmir that is controlled by India. One of the Americans escaped and the Norwegian was killed in August 1995. The kidnappers demanded that the Indian government should release a number of militants from Indian prisons in exchange for the lives of the kidnapped Westerners. Diplomats of the United States, the United Kingdom, Germany, and Norway intervened many times in New Delhi and, since “Al-Faran” had connections

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with a militant group based in Pakistan, also in Islamabad, asking the Indian and the Pakistani governments to do everything within their power to find and save the hostages. Furthermore, they met anyone they could “to influence the kidnappers to release the hostages”.27 However, it was impossible to find the hostages and/or the kidnappers. One militant who had been caught by the Indian authorities claimed in May 1996 that the hostages had been killed in the middle of December 1995. Unfortunately, the fate of the hostages was never solved. The ease of traveling has led to an increase of child abductions from one country to another. Foreign ministries of a number of countries, such as the United States, the United Kingdom, and Germany, offer information about what their missions abroad can do and cannot do for parents.28 In cooperation with the authorities of the host country consuls can help to locate the child. In case the address of the child is known, American and British consuls offer welfare visits to the child. Of course, consuls cannot make “rescue” attempts. Cases of dual nationality are particularly difficult to solve: When the child has also the nationality of the host country, the authorities of the host country consider themselves responsible for decisions concerning the child and the consul has only very limited possibilities. The only existing international law mechanism is the Hague Convention on the Civil Aspects of International Child Abduction of 1980.29 The Convention aims at the prompt return of children who were wrongfully removed to or retained in any state that is a contracting party of the Convention. Since 80 states are a party to the Convention, there is often a good chance for a solution of a child abduction case. Assisting Detained Nationals Persons who were detained in a foreign country are in particular need of assistance. It does not matter why they were detained. In most cases they are in custody pending trial or imprisoned after trial. In the case a foreigner is detained, the interests of the receiving and the sending state collide. The receiving state claims

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jurisdiction over all persons on its territory and the sending state wants to protect its nationals wherever they happen to be. In other words, territorial sovereignty and the national principle clash. Therefore, the consul needs to know what he can do. Article 36, para. 1, lit. b and c, of the CCR sets out the rules. The consul has the right to visit and talk to a compatriot who has been arrested, imprisoned, or detained (Article 36, para. 1, lit c). There are many steps that a consul can take in favor of an arrested compatriot.30 He will try to find out the reason of the detention and discuss the legal and procedural issues involved. The arrested person will not be familiar with the peculiarities of the receiving country’s legal system; thus, information is crucial. The consul will provide the person in prison with a list of trustworthy lawyers from whom he can choose one. The consul will also see to it that from the beginning of questioning an interpreter is consulted, if necessary. It is also helpful if the consul establishes a contact between the detained person and his relatives and friends. He will also check whether the detained person has been treated correctly. If the person in jail suffers from physical abuse, the consul will protest officially. If the food is insufficient, the consul will try to look for a remedy. If the trial is under way, the consulate has to decide whether an officer should attend. It may be helpful to demonstrate the sending state’s interest in a fair trial. The consul can take these actions only if the arrested person does not oppose them, since Article 36, para. 1, lit. c, of the CCR gives priority to the decision of the individual. The consul can only act on behalf of a detained person if he is aware of the citizen’s predicament. He may have received the information from relatives and friends of the arrestee or from the media. Those who are best suited to pass on the information are the competent authorities of the receiving country. Article 36, para. 1, lit. b, of the CCR, however, links their obligation to inform the consul to the wishes of the individual involved. The sequence of events is, according to the CCR, as follows: The competent authorities are obliged to inform a foreign arrested person without delay that he has the right to request the assistance of his consul. If he requests

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that the consul be informed, the competent authorities have to do so without delay. Timely access of the consul to the man or woman in jail is important. The solution of the Convention to make the decision, whether to bring in the consul, dependent on the jailed person’s will, is unsatisfactory because it can be misused. If a receiving government is unwilling to have the consul involved, it can pretend that the arrested person did not request the consul be informed. The consul has no chance to prove the contrary. It is interesting to note that the United States has concluded bilateral consular agreements with more than 50 countries that require the notification of consular officials of the arrest of one of their nationals regardless of the national’s request.31 This is a far more satisfying way of dealing with the notification problem. It is a frequent task of consuls to assist detained citizens. For example, in 1997, 10,188 Indian citizens were arrested abroad.32 British consuls helped 6,500 detained persons in 2006/07.33 In an average year, Dutch consuls assist 2,500 citizens.34 Drug offenses have contributed to the increase of the numbers of imprisoned foreigners. The International Court of Justice (ICJ) had to interpret Article 36 of the CCR in its Judgment of the LaGrand Case, rendered on June 27, 2001.35 Walter and Karl LaGrand, two brothers, had attempted an armed bank robbery in Arizona, murdered the bank manager, and seriously injured another bank employee. On February 17, 1984 they were convicted of murder, attempted murder, attempted armed robbery, and kidnapping. On December 14, 1984, they were sentenced to death. Both brothers were Germans. They had come to the United States when they were still young children but had never changed their nationality. Before they were convicted and sentenced, the competent US authorities never informed them of their right to consular assistance. The German Consulate General in Los Angeles was made aware of the case only in 1992, not by the US authorities but by the LaGrand brothers. The German authorities made various interventions on behalf of the LaGrands. The absence of the consular notification was raised in a letter dated February 22, 1999

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from the German Foreign Minister to the US Secretary of State. On December 21, 1998, the LaGrand brother received formal notification from the US authorities of their right to consular assistance. Karl La Grand was executed on February 24, 1999. Walter LaGrand was executed on March 3, 1999 in spite of a Provisional Measure Order of the ICJ rendered on the same day and asking the US government to “take all measures at its disposal to ensure that Walter LaGrand is not executed pending the final decision in these proceedings”.36 The case before the International Court of Justice was somewhat bizarre. According to the submission of the US government the LaGrand brothers “had the demeanor and speech of Americans rather than Germans” and were not known to have spoken German.37 They had committed severe crimes and were convicted and sentenced in accordance with the laws of Arizona. The German government invoked the missing of the consular notification very late, only two days before the scheduled execution of Karl La Grand. In February 2000, the US government apologized to the German government for not promptly informing the LaGrands of their rights of consular representation. It also made known that the US authorities were trying to strengthen the regime of consular notification. When the Court rendered its decision it could not be of any help for the LaGrands since they had been executed more than two years ago. The German side justified its action by arguing that it wanted to get a confirmation of the right to consular assistance by the ICJ in order to prevent a repetition of such cases.38 The judgment was, therefore, of a theoretical nature. The Court determined that Article 36, para. 1, lit. c, establishes an individual right of the detained person to be informed about the possibility to request consular assistance.39 Consequently, the Court found that by not informing the La Grand brothers of their rights to contact the consul, the US government violated obligations towards Germany and the two imprisoned persons. Since Germany was not informed in a timely fashion, it was prevented from rendering the assistance provided for in Article 36, para. 1, lit. a and c.

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Thus, also these provisions were violated.40 Since a review and reconsideration of the convictions and sentences were not permitted, after the violations of Article 36, para. 1, had been established, also Article 36, para. 2, was violated.41 This provision obliges states to give full effect “to the purposes for which the rights accorded under this Article are intended”. Mexico had similar complaints as Germany. At the beginning of 2003 Mexico turned to the ICJ with a request to stay the execution of 51 Mexicans in the United States arguing that the US authorities had failed to inform the defendants of their right to consular assistance. Mexico argued that consular notification constitutes a basic component of due process. On February 5, 2003 the ICJ ruled that the United States must temporarily stay the execution of three Mexicans who were at risk of being executed in the near future. On March 31, 2004 the Court ordered American courts to review and reconsider the death sentences because the rights of the prisoners to consular assistance had been violated.42 At the beginning of 2005, the US president directed state courts to abide by the ICJ’s decision.43 In December 2004, the US Supreme Court accepted an appeal from one of the Mexican death-row inmates in order to review the case. In March 2008, the US Supreme Court ruled that the president had no power to tell the state of Texas to reopen the case of this Mexican.44 Neither the constitution nor an act of Congress granted the president such an authority. Jose E. Medellín who was in the center of the dispute was executed in Texas on August 5, 2008 despite pleas from the administration for a new hearing.45 It is unsatisfactory that the American legal system did not allow translating the ICJ’s ruling into action. In future, a similar conflict between the rulings of the ICJ and US courts will not occur. In March 2005, the US government withdrew from the Optional Protocol concerning the Compulsory Settlement of Disputes of April 2, 1963. Thus, the United States is still bound by the rules of the CCR, but cases concerning the interpretation or application of the CCR’s rules by agencies of the United States can no longer be brought before the ICJ.

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Administrative Duties Many of the functions enumerated in Article 5 of the CCR are connected with the administration of the laws of the sending country. For the sake of convenience, those functions that are more of a legal character and are linked to the administration of justice will be treated separately. According to Article 5, lit. a, it belongs to the functions of a consul “to issue passports and travel documents to nationals of the sending State, and visa or appropriate documents to persons wishing to travel to the sending State”. The passport is the traveler’s indispensable companion. It is the prima facie evidence of the traveler’s nationality. The nationality on its part determines the rules for the entry into or the departure from a foreign country. Passports are checked everywhere upon entering a country and often also on departure. All countries have passport laws, laying down the rules, for example, for the form of application, the requirements for issuing or denying a passport, the format to be used, and the period of validity. Many states try to make a passport difficult to forge by writing all important data on a laminated page, by using a photodigitized imaging system and by adding biometric data. The various municipal laws differ. Most consuls are authorized to issue passports to nationals who have their residence in the consular district and to those traveling nationals whose passports have been lost or stolen. US consuls are only authorized to issue passports that are needed for urgent travel.46 All other US passports are issued by the Department of State. Many consulates are more burdened with issuing visas. Some figures may demonstrate the strain for missions. In 2005, the German Embassy in Moscow received approximately 269,000 visa applications of which 248,000 were granted.47 The corresponding figures for the German Embassy in Kiev were 131,000/118,000 for the German Embassy in Beijing 100,000/94,000 and for the German Embassy in Abuja 31,500/18,300. The Department of State reviews more than 7 million visa applications per year.48 A visa today is mostly a permit to enter a foreign country and to

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stay there temporarily or continuously; it is fixed in the form of a document to a foreigner’s passport.49 Visas are given for various purposes, for example, to transit a country, to stay there temporarily as a tourist, to visit relatives, to do business, to participate in a sports event, to study or to teach, to work, or to become a citizen of the receiving country. Every country has its own policy for regulating entry and residence of foreigners.50 Among the visa applicants before the doors of foreign missions are many who want to reside permanently outside their country of birth. These migrants are motivated by pull and push factors. After the Western European countries had recovered from the devastation caused by the Second World War they tried to attract “guest workers”. These foreigners were supposed to stay and work for some time in Europe and then return home. Many of the guest workers preferred, however, to stay. Some pull factors remain; foreigners with special abilities or those who are willing to invest a considerable sum of money are welcome as immigrants to some countries. Nowadays, however, migration is dominated by push factors. Civil wars, political persecution, discrimination of minorities, the destruction of the environment and, particularly, poverty cause millions of people from the developing countries try to find a future in an industrialized country.51 The pressures of migration are so strong that in Western European countries’ immigration policies have become a crucial issue of public discussion. What Western countries try to do is to manage the influx of foreigners in an attempt to avoid illegal immigration. Visa regulations are the expression of such efforts. What has not changed are the long queues of visa applicants in front of the visa sections of Western embassies and consulates since there is no end to what has been called “the global homelessness”.52 The work of the consulate is to find out whether an applicant fulfills the requirements under which a visa can be granted or whether his stay is undesirable. It is the consulate’s duty to fight irregular immigration. Undesirable are those foreigners who may become a burden on the public budget of the receiving country. Their stay violates the national interests. Thus, the consul defends his

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country’s interests when he decides about issuing or denying a visa. The general idea is expressed in Article 3, para. 2, of the German Consular Law that states “When fulfilling their duties the consular officers have to protect and promote the reputation and interests of the Federal Republic of Germany to the best of the abilities”.53 The task for the consul is challenging since he is often confronted with forgery, lies and pressure.54 If an applicant claims that he or she wants to visit the consul’s country for business reasons, the consul will check whether the applicant conducts a business at home, whether he has ever been abroad, has a banking account, is a member of the chamber of commerce and industry or of another business organization. If an applicant claims he wants to visit the consul’s country — as most of those do who have the intention to stay there — the consul will focus on ascertaining whether the applicant will return. He will check whether the applicant has a return ticket, carries along enough money for the intended length of his stay abroad or has a sincere invitation, and whether he can give sufficient reasons why he is interested in visiting the consul’s country. In many places consuls of Western countries get together regularly to exchange information to cope with the latest tricks of applicants. Forgery is difficult to detect, particularly if original visa forms are used that have been stolen and were later on sale at the bazaar. Languages with a difficult spelling enjoy an advantage. The German “Umlauts”, for example, have proven to be a trap for forgers. The many cases of fraud have made many consuls suspicious. They often have to handle so many cases that there remains only a limited amount of time for each case. Consulates try to deal with the crush before their doors by introducing general requirements for dealing with visa applications. As a result the process often requires much understanding and patience on the part of the applicants. Complains about the way that consulates handle visa requests abound.55 It is the duty of the chief of mission to see to it that the applicants are not treated in a disparaging way. Visas of Western countries are a precious commodity. It often happens that VIPs of the receiving country try to involve the chief

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of mission in visa cases. An experienced ambassador or consul general will treat such an attempt with caution. The intervention of a VIP in a routine matter will make him suspicious.56 Lucky is the chief of mission whose consuls have discretionary authority to grant or deny visas. Thus, a United States ambassador can argue that it is not in his power to overturn his consul’s decision.57 In a system such as the German one, the ambassador could overturn his consul’s decision because he is his superior within the civil service, but he is well advised not to do so or only in particularly exceptional cases. Otherwise he weakens the standing of his consular staff and his own reputation.58 Consuls are also faced with pressure from home. Relatives or friends of the applicant who have already found a save haven in the consul’s country bring in a politician, preferably a member of parliament, on the visa question. The politician turns to the consulate or to the foreign ministry. Such an intervention has to be followed by a reexamination of the case, but the consul’s decision should only be changed if new relevant arguments have been forwarded. The European countries, which are members of the Schengen treaty, have abolished internal border checkpoints and controls.59 When a person wants to travel, for example, from France to Belgium, he or she crosses the border without being stopped or checked. At the same time, these countries created a single external border with immigration checks for the Schengen area. Any third-country national who has a visa for one of the Schengen countries may enter any other without checks. A common model for visas, a common list of countries whose nationals need visas for the Schengen area, a Schengen information system, and a common visa policy were created. For consuls of Schengen countries in third states the new system meant close cooperation and many joint meetings.60 Many goals are to be achieved: For example, all consulates of Schengen member countries must apply the same criteria when deciding about a visa application. Multiple application (visa shopping) must be discouraged. Information about attempts of fraud must be exchanged. The system is not perfect and a number of reforms have been introduced.61 Various solutions are possible to

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achieve a unified practice: At some or every post the consulate of one Schengen country alone issues visas for the Schengen area. This has been proposed by France. Or the visa sections of all Schengen countries at a post are merged and the head of this agency makes the final decision on an application. The idea to charge the delegations of the European Commission with issuing visas is not in easy reach. So far, delegation officials are neither authorized by host states nor by EU member states to perform consular functions. Since consular activities are based on municipal law, EU member states are reluctant to transfer the necessary authorization to other officials than their own consuls. Also in future cooperation among EU member states in the field of visas will be characterized by intergovernmentalism and not by supranationalism. Legal Functions As already mentioned above, consular functions, which are more of a legal character or linked to the administration of justice, will be discussed together. These functions are listed in lit. f, g, h, i, and j of Article 5 of the CCR. Consuls can act as notary and civil registrar (lit. f of Article 5 of the CCR). Consuls everywhere in the world perform simple certifications of signatures and copies. They also authenticate (legalize) official documents of the host country, for example birth and marriage certificates that can be used afterwards in the consul’s country. Letter f of Article 5 of the CCR insists that consuls can act as a notary and civil registrar only if it is not against the law of the receiving country. What the provision does not mention, but what is equally important, is that the consul can perform these functions only to the extent that is sanctioned by the legal system of the sending state. Legal systems differ in defining the power of a notary.62 The legal systems of the Romano-Germanic family of civil law empower a notary to establish an official document with the result that such a document is supposed to be authentic (in Germany: oeffentliche Urkunde, in France: acte authentique); the

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notary is responsible that the legality of the act is strictly kept. According to Paragraph 10 of the German Consular Law, a German consul, for example, may set up an instrument for a purchase and sale contract of real estate, for a testament, for a marriage contract, for a consent to an adoption, or for an application for a certificate of inheritance. Common law systems grant a notary far less authority and do not burden him with guaranteeing the legality of the act. If a citizen of the sending country dies in the receiving country, the consul will try to inform the deceased’s relatives and to assist in the repatriation of the remains. Article 5, lit. g, authorizes the consul to safeguard the deceased’s estate in the interest of the heirs. In doing so, it is particularly important to respect the laws of the receiving state because most states have laws regulating inheritance cases of foreigners. Though these laws and regulations vary considerably, they often provide that a domestic agency takes care of the estate. Thus the estate functions of consuls have shrunk. It seldom happens that a consul makes use of the authorization of lit. h of Article 5 of the CCR by applying for a guardianship or a trusteeship for a minor or a mentally disturbed person. However, consuls frequently render assistance to mentally disturbed citizens. By empowering consuls to serve legal process and to take evidence, the CCR (Article 5, lit. j) gives them judicial functions. The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters of 1965 permits various types of service of process.63 Consular or diplomatic missions can serve legal process either directly or indirectly by involving the competent authority of the receiving state. There is, however, a type of service of process that does not involve the consul: The court of the sending state may turn directly to a central authority established in the receiving state. Since this is considered to be the regular way of proceeding, consuls of countries that are a party to the Hague Convention of 1965 become less burdened with the duties of serving process.64 To examine witnesses is in most legal systems the prerogative of judges. Some countries are, therefore, reluctant to make use of

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the possibilities offered by lit. j of Article 5 of the CCR to authorize their consuls to take evidence for their courts. Canada does not give that authorization to its consuls.65 Other countries, like Germany for example, do give such an authorization, however, only to those consular officers who have either passed the examination to be a judge or have the necessary training and experience.66 Since the consul has no means of coercion at his disposal, he depends on the willingness of the witness to make a deposition. Since he is requested by Article 5, lit. j, of the CCR to respect “the laws and regulations of the receiving state”, the consul cannot examine the witness if a host country, like for example Switzerland, does not allow it. Shipping and Aviation Issues The ports around the Mediterranean were the places that were early on visited by foreign businessmen who often settled there. They became the first places in need of assistance by consuls. Shipping issues were instrumental in bringing the first consular relations into existence. A collection of maritime ordinances (Consolato de Mare) from 1279 authorized consuls to accompany vessels. When international commerce expanded, shipping matters became very much the core activity of consulates located in harbor cities. During the last several decades maritime functions of consulates have shrunk considerably. Various reasons are responsible for this development.67 Vessels no longer stay days or weeks in a harbor. Since the technology of loading and unloading a vessel is fairly advanced a ship will stay for only a couple of hours in a harbor. The agent of the vessel’s shipping company deals with the necessary paperwork and negotiations with local authorities. The International Maritime Organization (IMO) is promoting cooperation among member states effectively. The workload of consuls of some of the great shipping countries was tremendously reduced when their vessels began to register under flags of countries where costs, particular salaries for the crews, are less expensive or where tax benefits can be enjoyed (foreign flagging).

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The many consular functions with regard to vessels and crews mentioned in Article 5, lit. k and l, of the CCR, are supplemented by municipal and international law. The consul’s cooperation is still important in case of an accident during the voyage of a vessel. It is the only maritime function mentioned in the German Consular Law (para. 17). Methods of how to deal with accidents, however, differ. The German law and practice authorize the consul to take evidence of a maritime accident (Verklarung). Other countries rely on the “sea protest”.68 To assist seamen continues to be an important task of consuls. Their functions vary according to the different national regulations. Main functions include supervising the signing of the employment contracts by a seaman and his discharge, taking care of seamen in distress and of their repatriation. In all of such cases the consuls are guided by their own laws and regulations and, if existing, by international treaties. Article 5, lit. k and l, of the CCR entrusts consuls with the same powers with regard to aircrafts that it gives them with regard to vessels. Consuls, however, seldom have to deal with aviation issues, because they are, as the Canadian Manual of International Air Carriage rightly suggests, “complex matters”.69 The International Civil Aviation Organization (ICAO) and many international bilateral and multilateral treaties deal with these matters.

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Chapter 13

Consular Posts

Consular Relations Under normal circumstances the establishment of diplomatic relations includes the establishment of consular relations. Therefore, there is seldom a need to agree separately on the establishment of consular relations. However, if no diplomatic relations exist or consular relations have originally been excluded from the relationship, an agreement between the sending and the receiving state is necessary to take up consular relations (Article 2, paras. 1 and 2, of the CCR). Consular relations can be maintained without setting up consular posts. When the consular section of the embassy takes care of all consular matters coming up in the receiving country, a separate consular post is unnecessary. When a sending state, however, wants to establish a consular post (consulate) it needs the consent of the receiving state, particularly with regard to the seat, the classification and the consular district (Article 4, paras. 1 and 2, of the CCR). The consent is implicitly contained in the exequatur granted by the receiving state. Thus, it is finally the receiving state that decides whether and how a consular post may be established. Often the seat and district of the consulate are controversial. Some countries have made it clear that they will not accept the establishment of a consulate everywhere on their territory. The US government has published a checklist by which it tries to find out whether there is a genuine need for a consular post.1 Germany insists that districts 251

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of foreign consulates comprise one or more states (Länder) of the Federation.2 Australia insists that the request to establish a consular post should address the projected scope and volume of the workload of the new post.3 The UK-German Consular Treaty of July 30, 1956 contains a generous most favorite nations clause: It allows in Article 2, para. 1, the establishment of consulates “at any place where any third state possesses a consulate”.4 Well-known and important cities have many consulates. Los Angeles, for example, has 101 consulates of which 39 are honorary posts.5 The Convention on Consular Relations adopts the idea of multiple accreditation of the Convention on Diplomatic Relations. Article 7 of the CCR allows that one consul exercises functions in two or more states, and Article 18 of the CCR permits that two or more states appoint the same person as their consul. The states concerned have to agree. The first alternative is important in case a diplomatic mission is double accredited because it allows its consular section to be active in both states. The second alternative is unpopular with receiving states, particularly if various states try to appoint the same person as their honorary consul.6 Under extraordinary circumstances it happens, however, that a state takes care of the consular interests of another state. Sweden, for example, protects the consular interests of the United States in North Korea.7 Even without being explicitly appointed, a consular post may act on behalf of another state provided the receiving state has been notified and agrees (Article 8 of the CCR). This provision is important for European Union member countries because according to Article 20 of the Treaty Establishing the European Community (Consolidated Version 2006) diplomatic missions and consular posts of EU member states in a third country have to give protection to nationals of EU states that are not represented in that country. Only in special cases does it become obvious that consular relations have an existence independent of diplomatic relations. According to Article 2, para. 3, of the CCR the severance of diplomatic relations does not mean automatic severance of consular relations. This is quite an innovation in international law. In the past, in case of strained relations, either only the consulates were

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closed, or the consulate together with the embassy. In modern state practice, however, the new rule is being applied. When the Federal Republic of Germany severed diplomatic relations with Yugoslavia in 1956, consular relations were maintained.8 When Panama ruptured its diplomatic ties with the United States in January 1964, consular officers were allowed to continue working.9 When Georgia and Russia severed diplomatic relations in August 2008 both countries retained their consulates on each other’s territories.10 States can maintain contacts eve below the level of full consular relations. In December 1989, Russia and South Korea agreed to attach consular departments to their existing trade offices without granting them the full status of consulates.11 Russia wanted to minimize the offense to its ally North Korea. The Staff In practice, consulates are typically headed by a consul general or a consul and are called consulate general or consulate, respectively. It is also possible that a consular post is headed either by a vice consul or a consular agent (Article 9, para. 1, of the CCR), but this seldom happens. Consular agents are private persons who make a living from a different occupation in the receiving country.12 They are honorary appointments and thus enjoy a status similar to that of an honorary consul. Since the head of a consular post is often working in a zone where the interests and sometimes the legal systems of his and the host country collide, he needs a commission from the sending country and an authorization, called an exequatur, from the receiving country (Articles 10, 11, and 12 of the CCR). Because heads of consulates change frequently, their appointment and admission are dealt with in a businesslike manner. After the foreign ministry has decided whom to send as head of a particular consular post, his Commission of Appointment will be drawn up. It gives the consul’s name, his rank, his consular district, and the seat of his post and describes his functions. In many countries the commission is signed by the head of state and the foreign minister. This Commission is

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sent to the sending country’s embassy that forwards it by note verbale to the foreign ministry of the host country asking to issue the exequatur for the appointee. Sometimes, in accordance with Article 13 of the CCR, an embassy might request the granting of a provisional admission. The foreign ministry of the host country informs the embassy by note verbale of the concurrence of its government to the appointment. The consul can now take up his functions. The receiving government, often through an official document signed by the head of state and the foreign minister, requires, complying with Article 14 of the CCR, that the competent authorities of the receiving state “do receive, countenance and as there may be occasion, favorably assist” the new consul.13 If the receiving state refuses to grant the exequatur, it is not obliged to give reasons (Article 12, para. 2). The same is true when a receiving state declares a consular officer persona non grata (Article 23, para. 4). These provisions follow the relevant provisions of the Convention on Diplomatic Relations. When the Turkish government refused to grant a new Bulgarian consul in Edirne an exequatur in the fall of 2000, it, however, published the reason: It was a reprisal declaring the Turkish consul in Burgas persona non grata.14 The categorization of the members of the consular post also follows the schedule used in the CCR. Article 1 of the Convention on Consular Relations enumerates the following categories: — Consular officers are those members of the post who perform the consular functions, listed in Article 5 of the CCR. One could also call them “consuls”. — Persons employed in the administrative or technical service of the post are called consular employees. As in the case of the “members of the administrative and technical staff” of a diplomatic mission, they comprise the home-based secretaries, registrars, finance, security, and communication officers. — Persons employed in the domestic service of a consular post belong to the service staff. These are the guards, drivers, messengers, gardeners, handymen, janitors, and cleaners, but also

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the translators, interpreters, and specialists at the visa counters. They are mostly locally hired nationals. — Someone who is employed in the private service of a member of the consulate is a private servant called “member of the private staff” by the CCR. Over classification of consular personnel may be a problem and is then of the same nature as over classification of diplomatic personnel.15 It was quite obvious “that guards, chauffeurs, messenger, caretakers, and persons occupying similar positions are members of the service staff”, as the State Department told the Indian Embassy in Washington in 1978.16 It was less obvious how to deal with “consular attachés”, a title used by Germany. In a controversy with the US State Department the German side quoted Article 9, para. 2, of the CCR that allows states to fix the designation of consular officers with the exception of the heads of consulates.17 Though not agreeing with this interpretation, the State Department informed the German embassy that it had no objection to an embassy’s use of the title provided the embassy provided information to which of the four classes, mentioned in Article 9, para. 1, the consular attaché belonged. The State Department could have insisted on being informed to which precise category of the “members of the consular post” (Article 1, para. 1, lit. g of the CCR) the “consular attachés” belonged, because the different categories of a consulate’s staff are accorded different privileges and immunities. It is left to the sending state to decide the composition and size of a consular post (Article 19, para. 1, of the CCR). The sending state is obliged to notify the name, category, and class of all consular officers to the receiving state (Article 19, para. 2, of the CCR). This should be done in sufficient time that the receiving state may declare the person unacceptable before arriving (Article 19, para. 2, Article 23, para. 3, of the CCR). In practice, this system of advance notification does not work, since decisions about transfers of consular officers are often taken at short notice. Article 19, paras. 3 and 4, of the CCR mentions the possibility that an exequatur may be requested for a consular officer other than the

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head of the post. This tedious way of proceeding is nearly unknown in practice. In accordance with a provision in the Convention of Diplomatic Relations (Article 11) Article 20 of the CCR gives the receiving state the right to request that the size of the consular post be kept within reasonable and normal limits. This provision was, and may be in future, of some use between hostile countries, but is not of importance in times of normal relations between the states. Following the decolonization and the collapse of Yugoslavia and the Soviet Union, many new consular posts had to be established, straining the budgetary and human resources of many states. Consular Privileges and Immunities The Vienna Convention on Consular Relations grants a consul less privileges and immunities than the Vienna Convention on Diplomatic Relations allows a diplomat. As has previously been explained, diplomatic inviolability has two aspects. Diplomats enjoy protection by the receiving state and they are free from coercion from that state (Article 29 of the CDR). Article 40 of the CCR gives a consul literally the same protection that is enjoyed by a diplomat. A consul is also generally free from coercion, that is, he is not liable to arrest or detention. However, Article 41, para. 1, of the CCR makes an exception: “In the case of a grave crime” the consul can be arrested, indicted, tried, and sentenced. If other criminal proceedings are instituted against him they must be conducted in a manner that allows the consul to perform his functions (Article 41, para. 3, of the CCR). While the diplomat enjoys comprehensive inviolability, the consul enjoys only limited inviolability. Diplomats and consuls are given privileges and immunities with regard to their function, as is stated in the Preambles of both Conventions. Since the Conventions accord a consul a lesser degree of inviolability than a diplomat, a consul is considered to have a lesser rank than a diplomat. Consequently, in the Preamble of the CCR the formula of the CDR that diplomats act “as representing

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states” is substituted by the wording that consuls act “on behalf of their respective states”. Consuls, however, do represent their states in their districts. As has previously been shown, consuls are entitled to do the same type of work that embassies do. Besides specific consular questions, they handle, among others, political, commercial, and public relations issues. Therefore, consulates are organized like embassies. However, a consul working at a consular post enjoys a lesser degree of inviolability than his colleague working in the consular section of an embassy, who is accorded full diplomatic immunity (Article 70, para. 4, of the CCR). This difference is due to the separate histories of both institutions. Consular institutions developed independent of diplomatic relations, as was previously mentioned. Consuls had originally no representative functions towards the host state. To a certain extent, this historical background continues to have an effect. In practice, arrests and trials of consuls seldom occur. Consular officers enjoy less personal immunities than diplomatic agents. A diplomat is granted total exemption from the civil and administrative jurisdiction of the host state except in cases related to his real estate in the host country, to succession, and to his commercial activities (Article 31 of the CDR). A consul is free from the host country’s jurisdiction only “in respect of acts performed in the exercise of consular functions” (Article 43, para. 1, of the CCR). Contract issues and accidents are defined as private acts (Article 43, para. 2, of the CCR). The restrictions imposed on a consul’s immunity are vague because the term “consular functions” is not defined by the CCR and thus open to interpretation by sending and receiving states and finally by their courts. Many and different decisions have been proclaimed by courts of many countries.18 If a consul issues a passport or a visa, repatriates a national, authenticates documents, transmits a judicial document, inspects a vessel, or performs any of the functions listed in Article 5 of the CCR, he exercises consular functions. But what about his activities that are only supportive to his official functions?19 If a consul uses his private car to pick up the pouch from the airport, one can argue that the trip is closely connected with his official duties. It is,

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however, difficult to decide whether the trip in his private car between his home and the consulate can be considered as belonging to his official duties. It is equally difficult to find out whether an act performed by a consul in violation of his country’s regulations has nevertheless to be considered to have been performed in exercise of consular functions. It is said that a consul’s act can only be considered official “if both the sending and the receiving state recognize it as such”.20 However, there will be many cases when the sending and the receiving state will not agree and worse, where they, due to their laws and regulations, cannot agree. Since immunities are granted to facilitate a consul’s work, it is reasonable to deprive him of his protection only when he has exceeded his functions gravely. Both diplomats and consuls have to respect the laws and regulations of the receiving state as is provided in the identical texts of Article 41, para. 1, of the CDR and Article 55, para. 1, of the CCR. Generally speaking a consul has far more often to meet the balance between his own law and that of the host country than the diplomat. Like the diplomat he is not allowed to interfere in the internal affairs of the receiving state (Article 55, para. 1, sentence 2, of the CCR). Diplomatic work is mostly performed in a sphere not governed by laws. Therefore, it would make sense to grant consuls the same personal immunities that are enjoyed by diplomats. If the host government feels that the consul exceeded the scope of his function it can either ask for a waiver or declare him persona non grata. As privileges, that is, exemptions from laws of the host country, are concerned, consuls are approximately on par with diplomats. It is obvious that consuls, like diplomats, must be exempted from personal services (Article 52 of the CCR) and from the social security system in the receiving state (Article 48 of the CCR). Consuls enjoy the same exemptions from direct taxation that are granted to diplomats (Article 49, para. 1, of the CCR). Imports for the consul’s personal use are free from customs and duties (Article 50, para. 1, of the CCR). There is a slight difference from the corresponding provision of the CDR (Article 36) in as much as the CCR restricts the volume of the import to the quantities “necessary for direct

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utilization” by the consul. The same reasonable idea should apply to the imports of diplomats. The members of the supporting staff, called in the terminology of the CCR the “consular employees”, enjoy fewer immunities and privileges than their colleagues working in embassies. This is unsatisfactory because the members of the supporting staff are moved from embassies to consulates and vice versa during their career and perform exactly the same functions whether they work in an embassy or in a consulate. Consulate employees are not even granted the restricted inviolability accorded to consular officers by Articles 40 and 41. Consular employees are only given functional immunity from the host country’s criminal, civil, and administrative jurisdiction (Article 43 of the CCR). Thus, they enjoy immunity from the receiving country’s jurisdiction only for activities that are closely linked to their work. It is understood that the home-based consular employees are exempt from the host country’s social security provisions and personal services (Articles 48 and 52 of the CCR). They enjoy the same exemption from taxes that are granted to consuls (Article 49 of the CCR), but are given exemption from customs duties only for imports “in respect of articles imported at the time of first installation” (Article 50, para. 2, of the CCR). That the service staff is only granted exemption from the social security system and from taxes on their wages, if they are home based (Article 49, para. 2, and Article 52 read together with Article 71, para. 2, of the CCR) is reasonable. In most cases, the service staff is composed of locally employed nationals of the receiving state who are subject to the host state’s laws and regulations. Consular Premises and Operations Exactly like the term diplomatic mission or embassy, the term consular post or consulate denotes either a group of people or a building complex. Article 1, para. 1, lit. j, of the CCR defines consular premises as “the buildings or parts of buildings and the land ancillary thereto, irrespective of ownership, used exclusively for the purposes of the consular post”. With this wording the intention

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to grant fewer immunities and privileges to consulates than to embassies is continued. The residences of the consuls, not to mention the residences of the consulate’s staff, are not included with the consequence that they do not enjoy any inviolability. The consular offices have to be separated from offices of other institutions, for example from the rooms of the cultural institute, installed in the same building (Article 55, para. 3, of the CCR). Function and meeting rooms for nationals of the sending state who work in the receiving state and are not used exclusively for consular purposes thus do not enjoy any inviolability.21 A battle was fought during the Vienna Conference over the scope of the inviolability that was to be granted consular premises. A compromise was reached giving consulates only limited inviolability. The view was still prevalent that consulates were less representative of their governments than embassies. Demonstrators, terrorists, and intelligence agencies did not share this view. There have been many attacks on consulates. When in November 1979 Iranian militants occupied the US embassy in Teheran they also seized the US consulates in Tabriz and Shiraz. The militants could not seize any members of the consulates’ staff since the work of the consulates had been suspended a couple of months prior.22 On June 14, 2002, a car bomb exploded in front of the US consulate general in Karachi killing 12 Pakistani and injuring 51 others.23 On November 20, 2003, a bomb in a pickup truck exploded before the British consulate general in Istanbul, killing 14 members of the staff, among them consul general Roger Short.24 On December 6, 2004, five terrorists stormed into the compound of the US consulate in Jeddah and started a gun battle that left five consulate employees dead.25 In May 2005, the Pakistani consulate in Jalalabad was attacked and damaged.26 In March 2006, several hundred people attacked the building of the Afghan consulate in Quetta (Pakistan) smashing windows and beating security guards.27 As in the case of the personal inviolability of consular officers (Articles 40 and 41 of the CCR), the inviolability of consular premises has two main aspects. Consular premises have to be free from interference and have to be protected by the host country.

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Article 31 of the CCR does not grant, however, consulates comprehensive inviolability. Agents of the receiving states are forbidden to enter the premises of the consular post without the consent of the head of that post. In case of fire or disaster, however, the consul’s consent may be assumed as has already been discussed.28 Another exception from the inviolability of consular premises is made by not prohibiting search, attachment, or execution in a consulate, as does Article 22, para. 3, of the CDR. Only requisition is prohibited by Article 31, para. 4, of the CCR. Thus, consular premises are not completely free from the receiving country’s coercive legal measures. That the status of consulates is so different from that of embassies is no longer justified. Consulates represent their countries and should have their share of state immunity. As far as protection is concerned, consulates enjoy the same status as embassies (Article 31, para. 3, of the CCR; Article 22, para. 3, of the CDR). It is a special duty of the receiving state “to take all appropriate steps” to protect consular premises. The government of the receiving country is under obligation to do more than just to maintain law and order. The Iranian government violated this obligation because it did not prevent attacks on the US consulates in Tabriz and Shiraz or restore United States authority over the consulate’s premises.29 The immunity that is granted to consular premises finds its counterpart in the prohibition to misuse a consulate’s premises (Article 55, para. 2, of the CCR). Archives and documents of a consulate enjoy literally the same inviolability as those of an embassy (Article 33 of the CCR; Article 24 of the CDR) for historical reasons. Even those countries that were not willing to accept the inviolability of consular premises recognized the inviolability of consular archives.30 Both Conventions give archives and documents of consulates and embassies comprehensive inviolability in order to guarantee the consulates’ and embassies’ ability to function. Consulates can fulfill their tasks only if they can freely communicate with their customers, the host government, and their superiors at home. The Consular Convention grants consular posts

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freedom of communication. The wording of Article 35 of the CCR follows the text of Article 27 of the CDR. Therefore, reference is made to Chapter 9. Some differences, however, are worthwhile mentioning. Paragraph 3 of Article 35 of the CCR lays down the challenge and return principle. If the host government has reasons to believe that the pouch contains something other than official papers, it can insist that the bag be opened in the presence of a representative of the sending state. In case that request is rejected, the bag has to be returned to its place of origin. It is crucial to note that under no circumstances may a pouch be opened against the sending country’s will. This procedure was followed when on March 7, 1989 drugsniffing dogs drew attention to a French consular pouch that was in transit at Miami airport.31 The US authorities asked French consulate personnel to open the bag. Since the French official declined to do so, the bag was returned to Paris. Consular couriers, mentioned in para. 5 of Article 35 of the CCR, are rare. A traveling professional diplomatic courier takes along the diplomatic mail to and from embassies and consulates. The courier enjoys the protection of Article 27 of the Convention on Diplomatic Relations. In the rare cases when the need arises that a consulate sends mail by courier, this courier should not be a national or a resident of the receiving state. He then enjoys the protection of Article 35, paras. 5 and 6, of the CCR. Consular posts overseas receive and send their pouches nowadays mostly by air cargo just as embassies do. Consuls can do an efficient job only if they have access to the competent authority of the host country. Their partners are regularly the local authorities and only in exceptional cases the central authorities. Article 38 of the CCR guarantees free access to these authorities. This guarantee is not of much help in practice. It depends on the skills of the members of the consulate and on the willingness of the local officials whether successful contacts are established. If a problem cannot be solved at the local level, the consul will suggest that the embassy take up the case with the central government. Consuls will talk to a central agency only in

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exceptional cases, for example, if a central agency is responsible for the whole country, such as an international chamber of commerce and industry, or a patent office. The Honorary Consul Besides the career consul, the Vienna Convention on Consular Relations (Article 1, para. 2 and Chapter III) recognizes the honorary consular officer. The Convention does not give a definition because no unanimity could be reached during the Vienna conference. Taking into account the most important aspects of the institution of the honorary consul the following can be said: An honorary consul is a person who exercises limited consular functions, but is neither a career officer nor necessarily a national of the sending state, and who typically does not receive a fixed salary for his consular work, but earns his living from other sources.32 In 1927, a Committee of the League of Nations suggested abolishing the institution of the honorary consul because it looked like an unacceptable mix of official functions and private interests.33 The institution of the honorary consul survived, however, and at present many thousand honorary consuls are on duty around the world. At many posts there is not enough work to justify establishing a career consular post. Some countries, for example, the United States, do not appoint honorary consuls; others, however, do so because it is practical and cost saving. For example, at the beginning of the 21st century Norway had around 400 honorary consulates,34 the Netherlands 360,35 Germany 338, the United Kingdom approximately 250,36 Ireland 67,37 Australia 48,38 and Mongolia 35.39 When a government selects a resident, be it one of its citizens, or a national of the receiving country as its honorary consul, it will try to find a well-connected resident for the job. A resident appointed honorary consul enjoys the additional prestige connected with function and title. This aspect has resulted in the appointment of persons as honorary consuls “by favor”. Some countries try to discourage this type of appointment. The State Department informed the chiefs of mission in Washington by note

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verbale, dated August 6, 2003, that it makes its agreement to the appointment of an honorary consul dependent on the fulfillment of a number of requirements: The Department must be assured that “meaningful consular functions will be exercised by the honorary consular officers on a regular basis and that such consular officers come under the supervision of, and are accountable to, the governments which they represent”.40 Other countries appoint honorary consuls liberally, particularly those who do not have to pay them a salary. The system of compensating honorary consuls differs. Many honorary consuls can keep the fees or a percentage of the fees for themselves. Some countries pay their honorary consuls a modest honorarium. As can be concluded from the wording of Article 1, para. 2, of the CCR the Convention’s Chapter I on “Consular Relations in General” applies also to honorary consuls. This means that an honorary consul needs a commission from his government and an exequatur from the receiving government. This is indeed international practice. The authorization of the receiving state can also be withdrawn. In October 2001 Guatemala withdrew its approval for the honorary consuls of Jordan and Haiti.41 An honorary consul also needs a consular district. In most cases the supervising embassy’s career consulate’s district will overlap the honorary consul’s district. Honorary consuls could perform all functions listed in Article 5 of the CCR, but they typically perform only limited functions. Since they are respected personalities they are helpful in arranging contacts with local officials, business and business organizations, cultural institutions, and the media in their district. They establish contacts for visiting members of the embassy or the supervising consulate and for official visitors from the sending state. They are also excellent sources of information for the supervising consulate or embassy and equally helpful intermediaries. It is often claimed that honorary consuls are supposed to promote the commercial interests of the sending state. For continuous efforts honorary consuls do not have enough time available. They can, however, help companies find the necessary business contacts.42

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Honorary consuls also perform specific consular functions. They assist nationals from the sending state in distress, perform notarial functions, and assist in processing visa applications. Sending states regularly do not permit their honorary consuls to exercise functions that need extensive training and experience such as issuing passports or visas, celebrating marriages, or authenticating public documents.43 If it is necessary that a function will be performed that is beyond the honorary consul’s authorization the supervising career consul has to fill in. Close cooperation between the embassy, the career consulate, and the honorary consul is crucial. In a receiving state, where the sending state has a number of consulates, the embassy will include all honorary consuls when it organizes a consular conference. Such a conference is useful for passing on information and to exchange views. Some sending states even invite their honorary consuls to meeting in their capitals to brief them on recent developments and provide them contact with government officials.44 When talking about the immunities and privileges of honorary consuls, one must realize that nationality and residence are crucial factors. By far the overwhelming majority of all honorary consuls worldwide are citizens or permanent residents of the receiving country.45 They only enjoy very limited prerogatives because states hesitate to grant their own citizens immunities and privileges. They enjoy immunity from jurisdiction and personal inviolability and can decline evidence only in respect of official acts (Article 71, para. 1, of the CCR). The elaborate system of immunities and privileges for honorary consuls contained in Chapter III of the CCR applies only to the relatively small number of those who are nationals of the sending state. They enjoy a better status than their colleagues who are nationals or residents of the receiving country, but a less favorable position than career consuls. Though Article 64 grants an honorary consul who is a national of the sending state only protection “as may be required by reason of his official position”, the host country has to take the necessary measures to prevent attacks against his person, freedom, or dignity. He is not granted total freedom

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from coercion but only functional immunity (Article 58, para. 2, and, para. 1, of the CCR). In respect of acts performed in the exercise of consular functions, he is granted immunity also from the criminal jurisdiction of the host country’s criminal jurisdiction to which he otherwise is subjected (Article 63 of the CCR). An honorary consul is only granted the privilege of not being taxed on his remuneration and emoluments. He cannot import articles for his personal use free from customs and duties (Article 62). In real life Graham Greene’s British honorary consul residing in an Argentinean provincial town at the Paraná River would have had no chance to import Cadillac cars duty free and sell them for a living.

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Chapter 14

Multilateral Conferences

Multilateral Diplomacy Many international issues are of common concern to more than two states and often dealt with during a conference, that is, during a meeting of delegations from the concerned states. For example, when various countries participated in a war, the peace conference is attended by a number of countries. Indeed, some peace conferences, such as those in Muenster and Osnabrueck that produced the Westphalian peace treaties in 1648, the Congress of Vienna in 1814 and 1815 that preserved the balance of power in Europe, and the Paris peace conference in 1919 that ended the First World War, were milestones of multilateral diplomacy. The numbers of international issues, which are considered common, have increased during the last 150 years and received an additional push by globalization. This tendency is reflected in the increasing number of international conferences in which the United States has participated. While the United States attended approximately 260 conferences per year (including bilateral conferences and sessions of IGOs) during the period from 1946 to 1955, the numbers went up to 1,000 per year in the 1980s.1 Multilateral diplomacy is still concerned with the maintenance of peace, dealing with topics such as arms limitation, disarmament, the ban of anti-personnel mines and cluster munitions, nuclear weapons, and conflict resolution. Many other subjects are on the agenda of international conferences: for example, trade and economy, agriculture, health, education and culture, human 267

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rights, maritime affairs and aviation, atomic energy, and environment protection.2 Issues that used to be considered purely domestic, such as police affairs, figure now on the international agenda, for example hijacking, narcotic drugs, and terrorism. Multilateral conferences are a well-established mechanism of international relations. They are best suited to tackle international problems successfully and in relatively short time. Multilateral conferences can be viewed from various angles. Sometimes only a few concerned countries participate in a conference. For example, only the governments of the two Koreas, the United States, Japan, China, and Russia participated in the talks concerning the North Korean nuclear activities. Other conferences have a regional participation. At a conference held in Brasilia in May 2008, 12 South American states, Argentina, Bolivia, Brazil, Chile, Colombia, Ecuador, Guyana, Paraguay, Peru, Suriname, Uruguay, and Venezuela, founded the regional organization UNASUR (South American Union of Nations).3 Other conferences have a global participation, for example the Conference on Global Warming held in Kyoto in 1997. One can also categorize multilateral conference according to the level of representation. Summit conferences, such as the G8 summits, are attended by the heads of state or government. Ministerial conferences, such as the Stockholm Conference on the Human Environment in 1972, are attended by ministers. Diplomatic conferences, such as the UN Conference on Consular Relations, held in 1963 in Vienna, are attended by delegates below the ministerial level. Administrative conferences, such as the Conference on Responsible Fisheries in the Marine Ecosystem in Reykjavik in 2001, are mainly attended by experts. Multilateral conferences pursue different purposes. Delegates can get together to discuss one or several topics, to sound out the views of the participants, to align positions, to settle issues among themselves, or to prepare joint activities. This type of an informal meeting is used, for example, to prepare an important conference. The participants may leave without having anything fixed in writing or with the minutes of the meeting or with the agreed minutes.

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If a conference wants to promote or confirm a policy, it passes declarations or recommendations. For example, the governments of Afghanistan, China, Iran, Pakistan, Tajikistan, Turkmenistan, and Uzbekistan passed the “Berlin Declaration on Counter-Narcotics Within the Framework of the Kabul Good Neighborly Relations Declaration” on April 1, 2004.4 In this declaration they agreed on strengthening their collaboration in the fight against opium production and trafficking. The Conference on Responsible Fisheries in the Marine Ecosystem, mentioned previously, also passed a declaration.5 The participating countries declared that they would work on incorporating ecosystem considerations into the management of fisheries. The Stockholm Conference on the Human Environment, held in 1972, passed more than 100 recommendations. Declarations and recommendations are politically helpful, but lack binding force. Other conferences are convened to rally support for a country in need. During a pledging conference governments and international governmental and non-governmental organizations announce voluntary contributions. For example, on May 25, 2008, approximately 50 countries, UN agencies and non-governmental organizations met in Yangon to promise helping the many Burmese who were hit by the devastating cyclone Nargis.6 Some conferences, such as peace or codification conferences, aim at agreeing on a treaty. They create contractual international law. Finally, multilateral conferences can establish international governmental organizations (IGOs). For example, the Conference on International Organization established the United Nations during its meeting in San Francisco in 1945. Ad hoc meetings are convened to deal with a certain issue or certain issues. It sometimes happens that the topic makes periodic gatherings necessary. The conference then becomes periodic. This is what happened with the G8 summit meetings. States can even go a step further. Many international problems need to be dealt with on a permanent basis. Therefore, some conferences become permanent in the form of an IGO. The sessions and meetings of IGOs will be considered in the following chapters.

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An Example: The Stockholm Conference on the Human Environment It was the Economic and Social Council (ECOSOC) of the United Nations that, in 1968, took the initiative and suggested to the General Assembly of the United Nations to convene a conference on the environment.7 The General Assembly agreed with the suggestion and decided in December 1968 to convene a conference on the human environment in 1972. At the same time, the General Assembly asked the Secretary General to check and report which main problems the conference should address and which preparatory process be engaged. Following proposals by the Secretary General and the ECOSOC the General Assembly, in December 1969, confirmed that the conference should encourage and provide guidelines for actions to improve the human environment. The General Assembly also entrusted the Secretary General to prepare the conference and set up a small conference secretariat. It also established a Preparatory Committee consisting of representatives of 27 countries, which would advise the Secretary General. The General Assembly also accepted the invitation by the Swedish government to hold the conference in Sweden. The Preparatory Committee discussed the organizational structure of the conference, the topics of the agenda, an action plan, and the text of a declaration. During the preparatory process the interrelationship between development and the environment was stressed. In December 1971, the General Assembly affirmed that plans for developing countries should be compatible with a sound ecology. The General Assembly furthermore urged states to end nuclear testing and called for the destruction of weapons of mass destruction. Finally, the General Assembly approved the provisional agenda and the draft rules of procedure and asked the Secretary General to invite members of the United Nations and specialized agencies to participate in the conference and to circulate important conference documents. The conference on the human environment was held in Stockholm from 5 to 16 June 1972 with the participation of 113 states. The Soviet Union and its communist allies boycotted the

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conference because the German Democratic Republic was not admitted. Bodies and specialized agencies of the United Nations as well as non-governmental organizations were represented at the conference. During its first plenary meeting the conference got organized. The conference elected the Swedish chief delegate as its president and adopted the rules of procedure as prepared by the General Assembly with slight changes. It then elected 26 vice presidents, the rapporteur general, and the officers of the committees. The conference established a credentials committee and three committees to which different agenda items were allocated. Later, a working group on the declaration on the human environment was set up. Finally, the agenda was adopted. Discussions in the plenary, the three committees and the working group followed. The substantial items of the conference were the following: – – – – – –

Planning and management of human settlements for environmental quality Environmental aspects of natural resources management Identification and control of pollutants of broad international significance Educational information, social and cultural aspects of environmental issues Development and environment International organizational implications of action proposals.

The rapporteurs of the three committees and the working group presented the committees’ reports to the plenary, which discussed and amended them. The Chairman of the credentials committee reported to the plenary that the credentials of all representatives to the conference were accepted. The conference approved this report. The conference finished by passing a declaration that contained a number of “principles” and by adopting approximately 100 recommendations, which it grouped in an action plan. The conference’s proposal to set up an international mechanism for the

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protection and improvement of the environment was approved by the UN General Assembly, which established the United Nations Environmental Programme (UNEP) with headquarters in Nairobi (Kenya). Other Examples: G8 Summit Meetings In 1975 the French president invited the heads of state or government of Germany, Italy, Japan, the United Kingdom, and the United States to a conference on the world economic situation. This meeting was the beginning of annual meetings of the heads of government of the largest industrialized countries. In 1976 Canada joined and in 1998 Russia became a full member. The presidents of the European Council and the European Commission also attended. One of the eight governments has the presidency for one calendar year. The rotation follows a fixed pattern. In 2007 Germany held the presidency, in 2008 Japan, and in 2009 it is Italy’s turn. It is traditionally the prerogative of the presidency to determine the location of the meeting and to suggest an agenda.8 The agenda is influenced by earlier summit discussions, by emerging international problems, and by the preferences of the host. Since the G8 do not have a secretariat, the personal representatives of the heads of government, called the sherpas, have close contact during the year to monitor the results of past meetings and prepare the next summit. One of these sherpas spoke “of the high degree of direct and open exchange of news, of the personal understanding, respect and friendship, and of the sense of collegiality which has developed among the Personal Representatives”.9 The sherpas meet four to five times a year. The German presidency chose the Baltic Sea resort Heiligendamm as venue, Japan Lake Toyako on the island of Hokkaido and Italy Maddalena. The German presidency chose the following topics:10 – –

Growth and responsibility in the global economy/“Heiligendamm process”11 Current foreign policy issues

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– – –

Climate change and energy efficiency New impetus for the Doha development round Growth and responsibility in Africa: peace and security, G8 Africa reform partnership, improvement for public health systems.

Over the years a practice has developed that the presidency can invite other heads of state or government to take part in the socalled outreach meetings. The German presidency invited the big emerging economies Brazil, China, India, Mexico, and South Africa. Nigeria, Egypt, South Africa, Algeria, Senegal, and Ghana represented “outreach Africa”. Since the G8 heads of government had only two days for their discussions, the papers and documents that they wished to pass had to be prepared in advance. The actual meeting of the G8 was divided into working sessions and each working session was allocated an agenda item. The summit passed 13 documents: – – – – – – – – – – – – –

Joint declaration by the G8 presidency and Brazil, China, India, Mexico, and South Africa Declaration on trade Report on the nuclear safety and security group Report on the G8 support to the UN counter-terrorism efforts Statement on non-proliferation Global partnership review Report on the G8 global partnership Global partnership report Statement on counterterrorism Statement on Sudan/Darfur Declaration growth and responsibility in Africa Progress report on the G8 Africa partnership Growth and responsibility in the world economy.

At the end of the meeting the Chair gave a summary. The G8 cooperation has developed into a large network for regular and ad hoc ministerial and official-level meetings.12 For example, the

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Hokkaido Toyako summit 2008 that was held from July 7, to July 9, 2008, was prepared by the meetings of the ministers for environment, energy, development, labor and employment, justice and home affairs, finance, science and technology, and foreign affairs.13 In 1999 the finance ministers of the G7 (G8 minus Russia) suggested that a Group of Twenty (G20) should get together, composed of the ministers of finance and the central bank governors of the G8 and of Argentina, Australia, Brazil, China, India, Indonesia, Mexico, Saudi Arabia, South Africa, South Korea, Turkey, and the European Union.14 The heads of the IMF, World Bank, and the chairpersons of the most important committees of these organizations participate as well. Though the G20 that meets annually since 1999 is a distant offspring of the G8, it took on a life of its own focussing on economic and financial issues. It was suggested that this mechanism should be transformed into a forum of the heads of state and government (L20) because the G20 is more representative of the world’s most important economies.15 It is interesting to note that the financial crisis of fall 2008 was discussed by the leaders of the G20 states in Washington on November 15, 2008.16 Preparing a Conference A multilateral conference can only be convened when some countries take the initiative. The Stockholm Conference in 1972 was initiated by member states of the ECOSOC and the suggestion was supported by the UN General Assembly. Ad hoc conferences have to find a host. The Swedish government volunteered to host the environment conference and chose Stockholm as location. The first G8 conference, at that time a G6 meeting, was initiated by the French president. It was decided to convene the meetings annually and to rotate the presidency according to a schedule. Therefore, no additional initiative is necessary to convene a G8 meeting. It is up to the presidency to convene the meeting at a location of its choice. The location of a conference has to be chosen with care. First of all, facilities for a large gathering are needed: conference rooms of many sizes, office rooms, equipment for the secretariat, and

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installations for interpretation. Working possibilities for journalists have to be provided. Since several thousand journalists were expected to cover the G8 meeting in Heiligendamm, a large media center was set up in Kuehlungsborn, a place close to Heiligendamm. All those coming to the conference have to find accommodation. Therefore, hosts of large conference often choose a large city as location because there are all facilities available. Security plays also an important role when choosing a location for a conference. Some conferences, such as the G8 summit meetings, are threatened by large demonstrations that often turn violent. Therefore, a place has to be chosen where the work of the conference cannot be disturbed. In any event, the location where the conference is held has to be secured, if necessary by the police. The security arrangements for recent G8 summits were quite elaborate and costly. Multilateral conferences need preparations. For the Stockholm conference a preparatory committee was set up, for the G8 summits the sherpas are charged with the preparation. The preparatory work has to focus on substantive and procedural issues. It has to be found out which items should be discussed and which decisions should be taken. The items have to be put on an agenda and the decisions must be prepared by draft papers. This work needs alignment of the positions of the participating delegations. Since the members of the delegations represent the views of their governments they often have to ask for instructions from home. Thus, the preparation of a conference puts a heavy workload on those ministries at home, which have a responsibility for the topics of the conference. Before the Stockholm conference the foreign ministries and the ministries responsible for environmental questions were charged with the preparations. During the preparations of a conference the rules of procedure must be agreed upon. They will be later accepted without or with amendments by the conference. The rules of procedure have to deal with a number of questions:17 — It must be agreed who can participate and who can observe the conference and how the delegations are composed.

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Representatives have to submit credentials, which are either issued by the heads of state or government or by the foreign ministers. Credentials are checked by a credential or another committee to be set up during the conference. Credentials are sometimes questioned by a country that does not recognize the government or country that has issued the credentials. The election of officers must be provided for. Typically, a conference needs one president, various vice presidents, and committee chairmen. They are given powers to manage the meetings. If committees are necessary the rules of procedure have to stipulate how the committees are elected and chaired. Conferences can only succeed when a secretary general and his staff members make it work. Among other things, the secretariat has to take care of the interpretation of speeches made at meetings, the distribution and circulation of documents, and the preparation of the records of meetings. When the conference begins somebody has to preside the opening. Since the conference has not yet a president the rules of procedure can stipulate that the conference’s secretary general or a cabinet minister from the host country fill in. During its first meeting, the conference has to elect its president and other officers and adopt the agenda and the rules of procedure. Rules for the conduct of business have to be laid down, for example for the quorum, points of order, the right of reply, and the order of motions. Rules are also necessary for decision making, particularly for the modalities of voting. It must be agreed which languages shall be used and interpreted for speeches and documents. Finally, it must be stipulated whether some of the meetings, for example the plenary meetings of the conference, are public.

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Managing a Conference After the conference has begun, it is the task of the president of the conference and the chairmen of the committees to ensure the observance of the rules of procedure.18 For example, they have to accord the right to speak and put questions to a vote according to the rules, that is to say, in a neutral way. They are the conferences’ referees. This is the original function of all those who preside international gatherings. Presidents and chairmen of international conferences have dutifully exercised this function many times. Delegations at multilateral conference have typically different opinions on one or more of the substantial topics of the agenda. Delegates try to find out whether there are possibilities to bridge the differences. They negotiate with the other delegations in an effort to reconcile the differences. In other words, they use diplomacy. The Chair can join these efforts in his capacity as the head of his country’s delegation. He can also try to do so for the sake of the success of the conference.19 He is then the agent of all delegations and develops from a mediator into a broker. The Chair can successfully contribute to reaching agreements only if his activities are tolerated by the other delegations. The Chair’s position as a broker is much stronger if the rules of procedure give him a mandate. The Chair has a privileged position. His task can only be canceled by a change of the rules of procedure, an action that requires a majority among the participant countries of the conference. For example, rule 8 of the rules of procedure for the conference on cluster munitions entrusted the president of the conference with the task to “promote the achievement of general agreement”. This rule has to be read together with rule 30, stipulating that the draft Clusters Munitions Convention, considered at the conference in Wellington in February 2008, “shall constitute the basic proposal for consideration by the Conference”. Thus, the president had to focus on promoting agreement on the draft convention. The president of an international multilateral conference, who tries

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to promote the success of the conference by acting as a broker, has a few procedural possibilities to direct the discussion in a way that it moves towards general agreement. The Chair can propose the closure of the list of speakers, a limitation of the time for speeches or the adjournment or closure of the debate with the idea to further positive results of the meeting. He, however, cannot prevent delegations, that have objections, from explaining their positions in the plenary. Therefore, the Chair relies on informal contacts with delegates to find out which compromise might be acceptable to everybody. He can also ask other delegates for assistance. These assisting delegates are sometimes called “friends of the Chair”. Sometimes, the Chair may be able to suggest a package deal or a text for the negotiations. It is argued that the Chair has privileged access to information about the private preferences of delegations and that this information is one of the sources enabling him to act as a broker.20 That the Chair is better informed about the intentions and positions of delegations is possible in particular cases, but is in no way assured. Typically, delegations are well aware of the positions of other delegations. The Chair is successful only if he enjoys enough support and understanding from the majority. If unanimity for the conference’s decisions is required, the Chair’s task can be very difficult because a single delegation can block progress. The possibilities of the Chair to influence the outcome of a conference are also dependent on the political environment of the meeting. For large diplomatic or ministerial conferences there exist many examples of rules of procedure that can be adapted to the special situation. Whatever function the Chair is granted, he remains under the authority of the conference. The situation is different, however, for the G8 presidency because the president of the G8 has a strong influence on preparing the agenda. Since G8 summits are held in the presidency’s country, the president is tempted to put topics on the agenda with which he scores at home. Accordingly, G8 summits have developed into large media events. Large conferences have a secretary general. He not only keeps the conference running like an administration officer keeps an embassy running, but also has an influence on the outcome of the

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conference. Often the secretary general participates in the preparation of the conference. For example, after the General Assembly had asked the UN Secretary General to appoint a secretary general for the Stockholm conference, he appointed the Canadian Maurice F. Strong, a well-known environmentalist, to that position in 1970. From his participation in the preparations of the conference Strong was familiar with the topics of the agenda, the problems, and the position of many governments. According to his own report he tried hard to persuade leading developing countries that it was in their interest to consider the environment as a dimension of development and participate in the Stockholm conference.21 Sometimes, it is up to the secretary general to open a conference. For example, the 1972 Stockholm conference was opened by its secretary general. Strong used the opportunity to show the conference the way to work “towards the ideal of a peaceful, habitable and just planet”.22 The secretary general is also entitled to make statements concerning any question under consideration.23 He can also use his expertise to influence delegates in private discussions. For example, during the Stockholm conference Strong successfully advised the Chinese delegation.24 Though the G8 summits are periodic meetings they do not have a secretariat. The preparations are done by the sherpas who also assist during the conference. They even participate in the working sessions together with their heads of state or government. Since the time for discussions during the G8 sessions is very limited, there is not enough time to deal with the many documents much in detail. The heads of state or government sanction the documents, but the documents are rather the result of sherpa diplomacy and less of summit diplomacy.25 However, during the preparations of the summits, the heads of state or government bring their influence to bear because they have to answer for success or failure of the summit. Concluding Remarks Multilateral conferences often strike observers as unique events. Actually, an international conference is only a step within a process.

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International topics develop. The topics are dealt with by diplomacy before the conference and will be dealt with by diplomacy after the conference. The protection of the human environment was the subject of diplomatic discussions before the 1972 Stockholm conference and remained on the international agenda after the conference. For example, the Earth Summit in Rio de Janeiro in 1992 (UN Conference on Environment and Development) continued the efforts to halt the destruction of irreplaceable natural resources and pollution of the planet. The same questions concerning the environment are on the international agenda today. Some conferences are aware that the discussion of its topics will be continued and take care of future discussions. It is obvious that periodic conferences, such as the G8 summits, deal repeatedly with the same or similar subjects. Therefore, the G8 leaders have an interest to assess what happens to their decisions. For example, the documents passed by the summit in Heiligendamm contained various progress reports, such as the reports on G8 support to the UN counterterrorism efforts, on the G8 global partnership against the proliferation of weapons and materials of mass destruction, and on the G8 Africa partnership. The G8 leaders reaffirmed their continued commitment to these efforts. Diplomacy will go on. For the success of a conference it is preferable if it is a stop only for one line or a few lines of international processes. There are permanently many issues on the international agenda. The work of a conference is easier when it is possible to isolate the conference’s topic as much as possible from the many other issues. The prenegotiations can contribute to focus on the main items only. During the conference the Chair may be able to direct the discussions in a successful direction if his mandate includes agenda management. The Stockholm conference, for example, was held during a period of tensions. The Cold War was going on. The Soviet block was pressing for the recognition of the German Democratic Republic. Because this goal could not be reached the Soviet Union and the other East European countries did not attend the conference. The People’s Republic of China, only recently recognized as representing China

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in the UN system, was an unknown player. France’s nuclear tests in the Pacific were controversial. Developing countries had discovered their influence and made use of it. Some of these issues made themselves felt in Stockholm, but did not lead the conference off course. Originally, the G7/8 meetings were seen as an opportunity for heads of state or government to exchange views in an informal way. Meanwhile, the agenda of the G8 summits covers many topics. According to the Chair’s summary the following foreign policy questions were discussed at Heiligendamm: counterterrorism, nonproliferation, global partnership against the proliferation of weapons and materials of mass destruction, nuclear safety and security, Kosovo, Sudan/Dafur, Iran, the Middle East peace process, Lebanon, Iraq, Afghanistan, Nagorno-Karabakh, North Korea, and Colombia. It seems rather difficult to discuss these crucial international problems thoroughly during a two-day meeting that covers many other subjects. The G8 leaders identify issues and give directions how they hope to cope with the many problems. Sometimes, a conference is a not only a stop, but a milestone within a process. For example, the Stockholm conference of 1972 is considered path breaking in international environmental politics. This conference put environmental issues on the global agenda and triggered the conclusion of many international treaties.26 The agreements reached on important international congresses, such as the Vienna conventions on diplomatic and consular relations, are also milestones of international relations. They lay down the rules acceptable to a large majority at the moment when the conventions are agreed upon. The development of diplomatic and consular practice, however, continues. Old rules, such as non-interference, become weak and bilateral treaties are concluded to secure additional rights and duties. International topics develop and call for common solutions. Therefore, multilateral conferences are here to stay.

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Chapter 15

International Organizations and Diplomacy

Basics International governmental organizations (IGOs), also called intergovernmental organizations or public international organizations, have added platforms to foreign policy and diplomacy. IGOs are only alive when they have organs of their own. Normally, they have a governing body — a plenary or an executive body — that takes care of the national interests of member states and a secretariat that takes care of the IGO’s common interests, as defined by member states.1 In the second half of the 20th century, IGOs have been established in great numbers and for many purposes. Because of their diversity, IGOs present a confusing sight. One can distinguish between universal and regional organizations such as the United Nations (UN) on the one hand and the North Atlantic Treaty Organization (NATO) on the other hand. One can also distinguish between general and special organizations, such as the Organization for Security and Cooperation in Europe (OSCE) on the one side and the Organization of the Petroleum Exporting Countries (OPEC) on the other side. One can also classify IGOs according to the reasons they were established. As was previously shown, modern technological development, the wish for closer political ties, and the need for economic cooperation have been the driving forces for setting up interstate organizations. How many functions of member states are transferred to an IGO differs. If the sacrifice of authority 283

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by member states is considerable, the organization is called a supranational one. The European Union (EU) has reached this higher degree of integration since some of its decisions are binding upon EU citizens. States have far-reaching, comprehensive powers. A state has the authority to set up new domestic institutions, for example a homeland security agency. In other words, the state has the authority to create new competences. Therefore, the state has the “Kompetenz Kompetenz”. Unlike a state, an IGO has only limited powers, which are defined by the organization’s functions. By making use of the idea expressed in Article 105, para. 2, of the UN Charter, one might say that an IGO has the authority that is necessary for the independent exercise of its functions. This functional approach to the powers of an IGO was used by the International Court of Justice (ICJ) in its Advisory Opinion on Reparations for Injuries Suffered in the Service of the United Nations. The Court said: “Wherever a state possesses the totality of international rights and duties recognized by international law, the rights and duties of an entity such as the Organization [i.e. the Organization of the United Nations] must depend upon its purposes and functions as specified or implied in its constituent documents and developed in practice”.2 In order to determine and interpret the functions of an IGO one has to take recourse to the rules of the organization. These rules consist, as can be argued by analogy of Article 2, para. 1, letter j, of the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, primarily of “the constituent instruments, decisions and resolutions adopted in accordance with them, and established practice of the organization”. The interpretation of these instruments shows the limits of an IGO’s functions. Much attention has been focused on the conditions that confer international legal personality on IGOs.3 Because only the European communities and not the European Union have legal personality, it is one of the aims of the Treaty of Lisbon to create a single legal personality for the Union.4 If an IGO has international

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legal personality, the organization is a subject of international law that means that it is an actor within the international community with the capacity to have international rights and obligations. Thus, the IGO can operate independent of member states. Legal personality is conferred upon an IGO only if member states have set up a permanent international institution and have entrusted it to independently perform its own duties.5 An interpretation of the IGO’s functions reveals whether member states intended to make the organization a subject of rights and duties. IGOs enjoy only “functional personality”.6 Since an IGO is typically created by states, legal personality is not an original one but derived from that of member states.7 A state becomes a subject of international law from the moment it fulfills the requirements of statehood.8 Its existence is independent of the recognition by other states. IGOs, however, acquire legal personality only vis-à-vis member states.9 In their relationship to non-member states they depend on the recognition of these states. The reason is obvious: IGOs are typically created by treaties, and treaties cannot create an obligation for a third party (Article 34 of the Vienna Convention on the Law of Treaties of 1969). Non-member countries are not obliged to recognize an IGO. It does happen that states do not recognize an IGO. For example, for quite some time, the member states of the Council for Mutual Assistance (COMECON), the economic organization of communist countries, rejected recognizing the European Economic Community (EEC).10 The Agents An IGO is brought into being when its organs start functioning. An IGO’s organ is made up of people. These agents can be classified according to their task in the organization.11 Various categories can be distinguished: — States send delegations as their representatives to a meeting of an IGO’s organ. Delegates are chosen from the ministries and

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agencies at home that are in charge of the topics discussed at the meeting. Members of a permanent mission to an IGO have a double function. They represent their states to the organization and participate on behalf of their states in the proceedings of the organs of the organization that take care of the member states’ interests.12 If their country is represented by a delegation sent to a meeting, officials from the permanent mission are typically members of the delegation. Members of an observer mission represent a non-member state to an IGO. They do not participate in the work of the organization. The members of the secretariat of an IGO, the members of the staff, take care of the common interests of the organization. Since they carry out international functions, they are exclusively international agents.13 The members of external missions of IGOs represent the organization vis-à-vis member states, non-member states, or other IGOs. IGOs increasingly establish external missions.

All of these actors work together thus creating a complicated and interactive network. Only the representatives of an IGO’s secretariat serve the organization and not their state of origin. The more room for maneuver the members of the secretariat enjoy the better are their chances to promote the common interests of the organization. Thus, the organization can develop a profile of its own and even some independence. The representatives of states use the platform provided by an IGO to promote their countries’ interests. Their interests may differ from the common interests. Typically, member states are able to cut back the secretariat’s activities. Therefore, the strength and effectiveness of an IGO depends largely on the will of member states. Only if member states agree to implement the aims of the organization, IGOs can do useful work. Thus, the shadow of member states looms large over an IGO.

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Parliamentary Diplomacy In order to fulfill their functions, IGOs have to take decisions, typically in the form of resolutions. Resolutions have a preamble and an operative part. The decisions are taken by the competent organ of the organization. Many of the topics that are dealt with by IGOs are controversial. Before a decision can be made, it is, therefore, necessary to discuss the issue with a view to accommodating as many views as possible. Close cooperation of the representatives from various states in their capacity as members of an IGO’s organ is necessary. The task of the representatives is to reconcile their positions through negotiations. Thus, diplomacy is at the core of the activities of officials working within an IGO. Since the proceedings within an IGO resemble those within a parliament, the term “parliamentary diplomacy”, coined by Dean Rusk more than 50 years ago, has become popular to characterize the work inside an IGO.14 IGOs need rules of procedure for their various bodies just as conferences do. Since IGOs are permanent conferences, their rules of procedure are institutionalized. Rules of procedure are signposts for conflict resolution. The way in which a delegation or permanent mission can pursue its goals within the various bodies of the organization is mapped out by the rules of procedure. The members of a delegation or a permanent mission must know how to use these rules. When a delegation or permanent mission plans to introduce a draft, it tries to sound out the views of other delegations. As a next step, the delegation tries to persuade other delegations to support or cosponsor the draft. After the draft has been tabled, the secretariat has to circulate it among all delegations of the body. The lobbying continues in the committees that often prepare the work of the competent organ. For example, the work of the UN General Assembly is prepared by committees.15 The draft is discussed first in the committee and later in the plenary. It will often be necessary to agree to a compromise. The discussions within and outside the committees may lead to amendments to a draft.16

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Also procedural rules can be used to influence decisions on an issue of substance.17 For example, a delegation can try to delay a decision by proposing to send the proposal to another committee. Or a delegation can move that a proposal needs a qualified majority instead of a simple majority. Chairpersons of bodies of international organizations have the same functions and importance as their colleagues at international conferences.18 Chairpersons of UN bodies have developed many mechanisms to perform their role as brokers. They also ask “friends of the chair” to assist them in promoting a compromise. Jean Ping, the UN ambassador from Gabon and President of the UN General Assembly in 2005, appointed 14 ambassadors as “facilitators” to assist him in lobbying for the draft document to be adopted by the World Summit.19 The Council of the European Union, composed of ministers, is the central decision making body of the Union.20 The Council’s work is prepared by the committee of the permanent representatives of the Member States (COREPER).21 The committee works in two formations: COREPER II is composed of the ambassadors of the permanent missions to the EU and is in charge of political, commercial, economic, and constitutional matters. COREPER I is composed of the ambassadors’ deputies and is charged with technical issues. COREPER deals with all items on the agenda of the Council with the exception of agricultural issues, which are dealt with by the Special Committee on Agriculture. When an agreement on an item is reached, the item is put on the A list which is then approved by the Council without discussion. Items, which remain controversial in COREPER, figure on the B list for discussion by the Council. As any other committee of an IGO, COREPER tries to reconcile the differences between member states. Good arguments have a better chance to be accepted than weak arguments. When, in 1994, COREPER II discussed the right to vote and run for local elections by non-national EU citizens in other EU states, various member states asked for derogations.22 For example, Luxembourg argued that it had a high percentage of non-nationals, and therefore, needed a derogation. This was a valid reason, which

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was accepted by COREPER II: Member states, where non-nationals form more than 20% of the total electorate, were exempted from the local elections directive. Austria was concerned how the directive would be accepted domestically and was particularly afraid of the reactions by the extreme political Right. This argument was considered beside the point and rejected. COREPER also discussed the wishes of other member states with regard to the local elections directive. In some cases, decisions were discussed during luncheons that were restricted to ambassadors. Some suggestions were accepted, others were rejected, and finally agreement was reached. Since COREPER meets often and, regularly, the permanent representatives of EU member states in Brussels see each other frequently. Thus, they know each other well. Their efforts to avoid extreme positions and reach compromises have not much, if anything, to do with their personal acquaintance. Their self-restraint is based on the obligation of the ambassadors and their governments to advance European integration. This goal calls for concessions to achieve progress. The obligation to keep the aim of European integration in mind is also the reason for the permanent representatives’ efforts to include each and every member state in the final agreement. However, this aim cannot always be achieved. At the beginning of the 1990s COREPER tried for two years to find a comprise that enabled the United Kingdom to agree to a working time directive. However, the United Kingdom abstained when the directive was voted in the Council and later challenged the directive before the European Court of Justice. This example confirms the pattern of the division of labor between the diplomatic mission and the ministries at home. According to its instructions from the ministries at home, the permanent mission tries to realize its country’s policy. It must be granted some leeway; otherwise it is too restricted to work for a compromise. The mission has a considerable influence on decision making. Since the members of the mission know best, which compromise can be reached, their suggestions are heard at home. Thus, they take part in shaping policy. Occasionally, their influence can reach a point where they indirectly give the instructions themselves. The final decision, however, is with the government.

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Decision Making Decision making is easier if there is only a single draft. Therefore, informal consultation may aim at combining elements of the various proposals in a single one. Finally, decisions of an IGO are taken by a vote. Rules for voting differ. In some cases a simple majority is sufficient. The UN General Assembly, for example, takes decisions “by a majority of the members present and voting” (Article 18, para. 3, of the Charter of the United Nations). Voting on important questions, such as recommendations regarding the maintenance of international peace and security, requires “a two-thirds majority of the members present and voting” (Article 18, para. 2, of the UN Charter). Other decisions of the UN General Assembly, such as an amendment to the Charter, require a majority of twothirds of all the members of the General Assembly (Article 108 of the UN Charter). Sometimes an explanation is added to a vote. The Security Council of the United Nations uses another pattern of voting. Substantive decisions need “an affirmative vote of nine members including the concurring votes of the permanent members” (Article 27, para. 3, of the UN Charter). UN practice considers only a negative vote by a permanent member (China, France, Russia, the United Kingdom, and the United States), but not an abstention as a veto.23 Some of the debates are held in public. Therefore, delegates have to speak publicly. The media report about the debates. Public debates and voting entail dangers for diplomacy. If the contributions to a debate are meant for public consumption only, they may substitute propaganda for diplomacy.24 Voting is alien to diplomacy. Diplomacy aims at reaching agreement and not at overpowering the other side. Since states are independent they are not dependent on orders of another state. Therefore, bilateral relations are based on mutual consent. Until the second half of the 19th century multilateral relations were exclusively governed by the principle of unanimity.25 Even today, decision making in bodies of some organizations such as NATO (Article 10 of the North Atlantic Treaty) and the Organization for Economic Cooperation and Development

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(Article 6 of the OECD Convention) is based on unanimity. During the 20th century majority voting and weighted voting were introduced, first in technical organizations, and later in political organizations. This move was guided by the wish to prevent a minority from blocking a decision and keep the organization running. For example, weighted voting is used in the Council of the European Union (Article 205 of the Treaty Establishing the European Community, Consolidated Version 2006). Voting in the International Monetary Fund (IMF), the World Bank, and the OPEC Special Fund is weighted according to financial contribution of members.26 After the developing countries had become so numerous as members of IGOs, they used their majority to promote their agenda. It proved difficult, however, if not impossible, to force majority decisions on minorities, particularly if the minorities consisted of powerful states. A way out was the return to unanimity in the form of a consensus. When a consensus is reached, no formal vote is taken and due to the absence of any formal objection the chairman declares the text adopted.27 This procedure allows those who are not in absolute agreement with the decision to put their misgivings aside.28 A consensus can often only be reached after intense discussions and consultations. It can mean accepting a vague text. However, voting by consensus respects the independence of states, and, thus, highlights a return to diplomacy. If a body of an organization has many members and/or if there are many conflicting views, it is practical to prepare decisions in groups.29 At the seat of an IGO there exist many groups, such as the Arab group, the Association of Southeast Asian Nations (ASEAN) group, the Caribbean Community group, the European Union group, the Non-Aligned Movement group, the Nordic group, the NATO group, the OECD group, the Organization of Islamic Conference Group, the Group of 77 developing countries (which has 130 members), or groups of like-minded countries. States often belong to various groups. These groups, also called coalitions, are mostly informal mechanisms for exchanging information, coordinating policies, and preparing policy decisions.30 They are platforms

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for negotiations trying to make use of their accumulated lobbying and bargaining power. Small ad hoc contact groups, composed of a few members from the various interest groups, are useful to bridge the differences between these groups. Groups often try to reach agreement on how to vote on specific issues. Sometimes, however, they are heterogeneous and lack cohesion. Groups are of particular importance when “equitable geographical distribution” has to be respected, for example, for the election of non-permanent members to the Security Council (Article 23, para. 1, of the UN Charter), or for recruiting of staff members for the UN Secretariat (Article 101, para. 3, sentence 3, of the UN Charter). UN practice demands that also the elections to many other limited membership bodies and to leadership positions be based on regional groups. At the United Nations, there exist five regional groups: African States, Asian States, Latin American and Caribbean States, Western European and Other States (WEOG), and Eastern European States. Decision making is facilitated when the regional groups present an agreed slate for elections. In some organizations groups have been institutionalized for election and/or voting purposes. For example, the elections to the Executive Board of the International Fund for Agricultural Development (IFAD), a specialized agency of the United Nations, are based on being mentioned in one of three lists. These lists divide countries in industrialized countries, OPEC countries, and developing countries.31 It is quite challenging for the members of a permanent mission to manage the multitude of contacts within a group and between groups. Johan Kaufmann, a former Dutch Ambassador to the UN, stressed that: “most UN talks take place between small groups of delegations”.32 The decision of an international governmental organization on a substantive issue contains the organization’s policy. The decision is based on the policies of member states. If all member states have supported the decision, it is a common policy that reflects the policies of all members. This conclusion, however, is not justified if the decision is based on a consensus or a majority vote or if it is taken against a state. In these cases, the decisions represent the policy of

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the IGO, but not the policies of all members. It is a collective, but not a common policy. For example, in a resolution of July 31, 2006, the UN Security Council demanded that Iran should suspend all enrichment-related and reprocessing activities, including research and development, of its nuclear program.33 This resolution represented the policy of the Security Council members and thus the policy of the organization, but not the policies of Iran. If the organ that takes care of the common interests makes a decision on a substantive matter that is binding for member states, it is a decision of the organization, but not necessarily reflecting the views of member states. The European Commission has legislative rights. According to Article 86 of the Treaty Establishing the European Community (Consolidated Version 2006), the Commission can, for example, apply competition rules to public utilities. The more an intergovernmental organization is independent from the influence of member states, the clearer is the shift to autonomous decision making by the organization. Privileges and Immunities of International Governmental Organizations States have their own territories, IGOs do not. IGOs have their seat within a territorial state. They can fulfill their work properly only if they are free from any harassment by the territorial state. Therefore, IGOs are granted privileges and immunities. Again a functional approach is taken. IGOs are granted privileges and immunities to enable them to independently exercise their functions.34 The functional standard, however, is somewhat vague and needs to be defined. This is done by the negotiation of international treaties. One has to make a distinction between the privileges and the immunities of the organization, which are discussed here, and the privileges and immunities of the staff of, and the representatives to, the organization, which will be discussed in the following chapters. Privileges and immunities for diplomatic missions flow from the Convention on Diplomatic Relations. There is, however, no general

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international instrument with regard to the privileges and immunities for IGOs. Privileges and immunities of an IGO are based on international treaties in force for that particular organization. Since there are many different organizations, many different treaties exist that lay down the privileges and immunities of IGOs. Matters are even more complicated: Since only the territorial state can restrict its own authority in favor of an IGO residing therein, the cooperation of the territorial state is indispensable. Various patterns have been chosen to establish privileges and immunities for IGOs.35 The privileges and immunities of the United Nations are based on a three-stage pattern: — Article 105, para. 1, of the UN Charter stipulates that the UN “shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfillment of its purpose”. This provision obliges each UN member state to grant the principal and subsidiary organs of the UN privileges and immunities.36 — The details of the privileges and immunities that have to be granted are laid down in the Convention on the Privileges and Immunities of the United Nations of February 13, 1946, also referred to as General Convention.37 — This Convention was supplemented by headquarters agreements with those countries where the UN has its seat and offices.38 The UN concluded a Headquarters Agreement with the United States on June 26, 1947,39 with Switzerland on April 19, 1946,40 and with Austria in 1967 and 1979.41 The United States and Austria are bound by the General Convention, but Switzerland is not a party to the Convention.42 When other UN bodies were created the same pattern was used. For example, when it was decided that Nairobi would be the seat of the United Nations Environment Programme (UNEP), a Headquarters Agreement was concluded between the UN and Kenya on March 26, 1975.43 This Agreement refers to the General Convention. Also the Headquarters Agreement concluded on

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May 27, 1994 between the UN and the Netherlands concerning the International Tribunal that has its seat at The Hague follows that pattern.44 It declares the General Convention applicable and provides for supplementary regulations. The Specialized Agencies of the UN are not included among the beneficiaries of Article 105, para. 1, of the UN Charter. Many of the constitutive treaties of Specialized Agencies have, however, similar provisions. Article 40, para. 1, of the Constitution of the International Labor Organization (ILO), for example, shares the wording with Article 105, para. 1, of the UN Charter.45 The privileges and immunities of the Specialized Agencies are based on the Convention on the Privileges and Immunities of the Specialized Agencies of November 21, 1947.46 The privileges and immunities of the International Atomic Energy Agency (IAEA) are laid down in an agreement of July 1, 1959 that generally follows the just mentioned Convention of 1947.47 Headquarters Agreements with the countries, where a Specialized Agency has its seat, supplement the Convention. The Headquarters Agreement concluded by the UN and the Food and Agriculture Organization (FAO) on one side and Italy on the other side regarding the World Food Program (WFP) refers to both Conventions.48 Switzerland was not a UN member until 2002 and was, therefore, not a party to the Convention of November 21, 1947.49 Since, however, six Specialized Agencies have their seat in Geneva and Bern, the host country has concluded headquarters agreements with each of them.50 The IAEA concluded a Headquarters Agreement concerning its seat in Vienna with the government of Austria on December 11, 1957.51 The intergovernmental organizations outside the UN system also need a special status that guarantees fulfillment of their functions free from interventions of the host countries. For the many IGOs outside the UN system, many legal instruments have been established. Here are some examples: The privileges and immunities of the Council of Europe are based on a General Agreement concluded on September 2, 1949 between member states.52 The privileges and immunities of the European Communities flow from a

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Protocol signed by member states on April 8, 1965, which Article 291 of the Treaty establishing the European Community (Consolidated Version 2006) refers to.53 It is interesting to note that in these cases the agreements were not concluded between the organization and the seat state but between member states only. In other cases the usual approach of signing a headquarters agreement was followed. Switzerland and the World Trade Organization (WTO), for example, have concluded a Headquarters Agreement on June 2, 1995.54 In spite of their multitude the international instruments that establish privileges and immunities for international governmental organizations, the provisions show similarities. International immunities focus generally on the following issues:55 — A difference has to be made between the international legal personality, mentioned previously, and the legal personality of an IGO after the domestic law of the host state. In some countries the domestic legal personality flows from the international legal personality, in other systems additional decisions have to be taken, for example in the United Kingdom in the form of an Order in Council.56 In various conventions the legal personality of an IGO is explicitly recognized. For example, France has recognized the legal personality of the United Nations Educational, Scientific and Cultural Organization (UNESCO).57 This means that the UNESCO has the capacity after French law to contract, acquire, and dispose of movable and immovable property and to institute legal proceedings. In other words, France has recognized the UNESCO as a legal personality of domestic law.58 The UNDutch Headquarters Agreement makes explicitly clear that the domestic legal personality is meant by stating that the Tribunal shall possess full juridical personality “in the host country”. — Many treaties, for example, the Convention of February 13, 1946, grant immunity to the organization and to its premises, property, and assets. Other agreements, for example the UNDutch Agreement of May 27, 1994, mention the immunity of property, funds, and assets. On February 26, 2004, Claire Short, a former minister of the British cabinet, said that British

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intelligence service had bugged the office of UN Secretary General Kofi Anann and that she had read some transcripts of the accounts of his conversations.59 In accordance with established practice in matters concerning intelligence gathering, the British Prime Minister did neither confirm nor deny Mrs. Short’s allegations. Mr. Anann’s spokesman said that that the Secretary General considered bugging operations on UN premises illegal and that he would be disappointed if Britain had done so. Bugging on UN premises is indeed a violation of Article II, Section 2, of the General Convention. The organization’s immunity has to be respected by everybody, not just by the host state; otherwise the organizations independence is not guaranteed. — The immunity granted from legal process protects the IGO against interference from the host state. Whether absolute immunity from legal process exists can only be found out by checking the background of the specific organization’s functions.60 Since creditors must have the possibility of suing a bank, international banks are by their charters submitted to jurisdiction.61 — It is general practice to state the inviolability of the organizations’ premises. This means first of all that the premises can only be entered by agents of the territorial state with the consent of the organization’s competent organ. This is expressly mentioned in many treaties, for example, in Article 6 of the Swiss Headquarters Agreement with the WTO, in the UN-Dutch Agreement on the International Tribunal, and in the UN/FAO-Italian Agreement on the World Food Programme. The inviolability of an IGO’s premises has a second aspect: The territorial state is obliged to protect the organization. For example, this duty is explicitly stated in Article VI of the UN-USA Headquarters Agreement of June 26, 1947 and in Article VII of the UN-Dutch Agreement on the International Tribunal. Even if this obligation is not mentioned explicitly, it nevertheless exists, flowing from the principle of inviolability of the organization’s premises. — An international governmental organization needs rules besides those contained in the founding document. Its organs need rules of procedure. The secretariat needs administrative rules, such as

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staff and employment regulations. Rules for the maintenance of order within the organization’s headquarters have to be set up. Since the seat is located on the territory of the host state, this state’s law may also apply. In order to avoid conflicts between the regulations of an IGO and the laws of the host country, some international instruments contain rules about the applicable law, for example, the UN-US Headquarters Agreement of June 26, 1947, the UN-Kenyan Headquarters Agreement of March 26, 1975 for UNEP and the UN-Dutch Headquarters Agreement of May 27, 1994 for the International Tribunal. In these cases the same approach is used: The laws and regulations of the host country apply except if otherwise provided. The IGO is given control over its premises and power to make regulations that are necessary for the full execution of its functions. The effort of the host countries to maintain the predominance of their laws and regulations is obvious. — It is common practice to provide for the inviolability of an IGO’s archives wherever they are located. Thus IGOs enjoy the same protection as diplomatic and consular missions (Article 24 of the CDR and Article 33 of the CCR). — It is equally common practice to grant an IGO freedom of communications including the use of radio facilities, codes, and sealed bags. Some instruments, such as Article IX of the UNDutch Headquarters Agreement of May 27, 1994, mention explicitly that the IGO “shall enjoy, in respect of its official communications, treatment non less favorable than that accorded by the government to any diplomatic mission”. An IGO is an entity different from an embassy or a consulate. An IGO is not an external mission but an international personality. Nevertheless, it is practical to resort to the diplomatic law, because it has an old, elaborate, and generally accepted system of privileges and immunities. — As a general rule, IGOs are exempted from direct taxes and customs duties on imports of articles for official use.62 The country where the IGO has its seat should not enjoy a special financial advantage.

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— Persons who travel in an official function to and from the headquarters of an IGO have to cross the territorial state in which the IGO has its seat. Therefore, some international instruments, like for example Article 12 of the Headquarters Agreement concluded between Switzerland and the World Intellectual Property Organization (WIPO) of December 9, 1970, contain rules to facilitate transit.63 The aim of these rules is to retain visa regulations, but to guarantee unimpeded entry into and exit from the host country. Various agreements, such as the Protocol on the Privileges and Immunities of the European Union of April 8, 1965, provide for the issuance of a laissezpasser that is recognized as a valid travel document. The privileges and immunities of IGOs show many similarities. Due to the variety of IGOs it is, however, difficult to see that generally applicable standards let alone customary international law has developed.64 Whenever one is looking for a privilege or an immunity of an IGO, one has to consult the international treaties valid for that particular IGO. The International Governmental Organization and the Territorial State Since IGOs have only limited and not comprehensive powers like states, it is doubtful whether one can compare IGOs with states. There is, however, one basic similarity. Like a state an IGO needs independence. The US Court of Appeal, District of Columbia Circuit, stated the following: “But beyond economies of administration, the very structure of an international organization, which ordinarily consists of an administrative body created by the joint action of several participating nations, requires that the organization remains independent from the intranational policies of its individual members”.65 One should, however, not idealize the situation. IGOs deal with policies and politics. Powerful countries can make their weight felt within an IGO. Sometimes they are even granted special voting rights by the charter. The seat states

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are also in a strong position since they are the masters of their territory. The paramount influence of the host country was illustrated by various conflicts between the United Nations and the United States regarding the UN Observer Mission of the Palestine Liberation Organization (PLO) in New York and visas for PLO leader Yasser Arafat. In 1974, the UN General Assembly granted the PLO observer status.66 Since then the PLO maintained an observer mission to the UN in New York. When the Anti-Terrorism-Act of 1987 passed by the US Congress entered into force in the spring of 1988, the PLO observer mission and the PLO information office in Washington became unlawful under US law. It was obvious that this legislation violated Section 11 of the UN-US Headquarters Agreement of 1947 that obliged the United States as host country not to impose any impediment to the transit of persons invited by the UN. Apparently there were conflicting views within the administration. The Attorney General prevailed and the US permanent mission in New York informed the UN Secretary General on March 11, 1988 that the US government will initiate legal action in case the PLO did not close its observer mission. The US District Court for the Southern District of New York saved the US from further embarrassment by deciding on June 29, 1988 that the PLO observer mission had a status protected by the Headquarters Agreement and could not be closed by the US administration.67 The administration accepted this decision.68 Later in the same year another controversy between the UN and the United States flared up, when the administration refused to issue a visa for Arafat who wanted to address the UN General Assembly. The administration based its decision on the fact “that PLO elements have engaged in terrorism against America and others”.69 This decision violated the obligation of the Headquarters Agreement not to obstruct the entry of persons wishing to participate in the proceedings of the United Nations.70 Consequently, the General Assembly by a vote of 151 to 2 asked the United States on November 30, 1988 to reverse its decision; the only countries voting against the resolution were the United States and Israel.71

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Since the United States stood firm, the General Assembly decided on December 2, 1988 to move its session to Geneva so that Arafat could address the world body.72 Indeed, Arafat delivered his address on December 13, 1988 in Geneva.73 It was quite remarkable that the UN General Assembly had to move to Geneva. However well international instruments may define the privileges and immunities of an IGO, there is still room for a political maneuver by the host state. If the host state decides not to follow the established rules, there is no authority that can force it to do so.

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Chapter 16

Permanent Missions and Their Members

The Establishment of Permanent Missions Permanent missions are the agencies that are sent by member states to an international governmental organization. The agencies representing non-member states are typically called permanent observer missions. In the second half of the 20th century IGOs and, consequently, permanent missions proliferated.1 States maintain permanent missions at the seats of the United Nations, some of its Specialized Agencies and other UN bodies in New York, Geneva, and Vienna. They have sent permanent missions to the United Nations Educational, Scientific and Cultural Organization (UNESCO), and the Organization for Economic Cooperation and Development (OECD) in Paris and to the Food and Agriculture Organization (FAO) in Rome. Brussels is the host to permanent missions to the European Union (EU), to the North Atlantic Treaty Organization (NATO) and the Western European Union (WEU). Some countries have sent permanent missions to the Conference on Disarmament in Geneva. Permanent missions in Strasbourg represent states to the Council of Europe. In Vienna states maintain permanent missions to the Organization on Security and Cooperation in Europe (OSCE). The members of the Organization of American States (OAS) have established permanent missions in Washington. The United Nations convened a conference in Vienna in 1975 to lay down the rules for the relationship between states and 303

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international governmental organizations. Rules regarding the status, privileges, and immunities of permanent missions were to be included. During the conference the conflict between the sending states that tried to accord a high level of privileges and immunities and the host countries that wished to have their rights protected could not be bridged.2 The Convention on the Representation of States in Their Relations with International Organizations of a Universal Character of 1975 (CRSIO) passed by the majority of the sending states has not been ratified by the host states and has not entered into force.3 Its provisions are, however, useful as far as they indicate general practices of states. The various headquarters agreements provide rules for permanent missions. For the establishment of a permanent mission of a member state neither the consent of the IGO nor of the host state is necessary.4 In 1948 the United Nations encouraged member states to establish permanent missions to the organization.5 Article 207, para. 1, of the Treaty Establishing the European Community (Consolidated Version 2006) stipulates that permanent representatives of member states have to form a committee that prepares the work of the Council of Ministers (Committee of Permanent Representatives or COREPER). Therefore, member states are obliged to maintain permanent missions in Brussels. They call themselves Permanent Representations to the EU, though in a strict sense they are accredited to the Communities.6 The term EU in this context is used as a generic one. For the rest, states were free whether and where they wished to establish permanent missions. The Functions of Permanent Missions The tasks performed by a permanent mission to an IGO differ from those carried out by a diplomatic mission to a state. As previously mentioned, a permanent mission of a state to an international governmental organization has two functions as Article 6 of the CRSIO indicates: It represents the sending state to the organization and it provides the participation of that state within the organization.

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Representing the sending country to the organization means maintaining contacts to the organization, negotiating with the organization, and protecting the sending country’s interests towards the organization. The partner for these activities of a permanent mission is the organization’s organ that takes care of the common interests of the organization, that is the secretariat. In this respect the duties of a permanent mission resemble the activities of a bilateral mission. For example, the permanent mission wants to discuss its government’s policies and tries to win the secretariat’s support or to make it drop or change its plans. The discussion can, for example, focus on the budget of the organization or on an item on that session’s agenda. A permanent mission may announce a special financial contribution to a project that the secretariat is charged to implement. The talks can center, for instance, on the recruitment of the sending country’s citizens or on providing documentation. The more important task that a permanent mission performs is to provide the sending country’s participation within the organization. The members of the permanent mission fill their country’s seats within the organs that take care of the national interests of member states. The members of the permanent missions to the United Nations, for example, are sent to the General Assembly, the Security Council, the Economic and Social Council (ECOSOC), and to many committees. The members of permanent missions to the EU represent their countries, for example, in the Committee of the Permanent Representatives (COREPER I and II). Members of permanent missions advance the policies of their governments worldwide in countless plenary, committee, working and contact group meetings. It is the task of permanent missions to be up-to-date on events. In this respect the members of permanent missions perform the usual diplomatic functions: They gather information and report it back home. They proceed according to the instructions they receive.7 Permanent missions will often have an influence on decision making when the issues under discussion are complex and negotiations are changing course. Then they suggest to their

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ministries at home how to adapt to the changes. There main task, however, is to negotiate in “an almost unending series of meetings”.8 The focus of their work is diplomacy. They agree to compromises, but try at the same time to uphold the basic policy decisions of their governments. Since the discussion of a topic may take weeks, months, or even years, the position of the participants needs to be adjusted many times. Permanent missions have to arrange their positions in continuous dialogues with their governments and the representatives of the other countries participating in the meeting. If any form of diplomacy deserves to be called “modern”, it is the multilateral diplomacy within an international governmental organization. Since many foreign ministers attend the general debate of the annual UN General Assembly, these meetings provide a welcome opportunity for regular bilateral diplomacy. Many foreign ministers have a tight schedule of meetings with their colleagues. These meetings have to be prepared by permanent missions. The United Nations can also offer a convenient platform for bilateral talks between states, which have not exchanged diplomatic missions, either because they do not recognize each other or because they found it unnecessary though they recognize each other diplomatically. The Federal Republic of Germany used the UN for talks with Eastern European countries in the mid-1960s when it had only exchanged trade missions but not yet embassies with these countries. The United States engaged the Democratic People’s Republic of Korea in direct talks in New York and Geneva in the first half of the 1990s. The effort was repeated in 2001/2002 when the administration’s special envoy for North Korea and the North Korean ambassador to the UN met in New York.9 It seems, however, that the UN platform is less used for exploratory discussions than one would expect.10 The Organization of Permanent Missions The organization of a permanent mission resembles that of an embassy. A permanent mission reflects the structure and the

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functions of the IGO to which the mission is accredited. The permanent mission of Japan to the United Nations in New York, for example, has five sections:11 — The political section deals with the Security Council, disarmament, non-proliferation, peacekeeping, and matters of justice. — The economic section is in charge of development and environmental issues. — The social section deals with social and human rights. — The administrative, budgetary, and UN recruitment section deals with the UN budget and tries to increase the number of Japanese working at the UN. — The coordination section manages the daily affairs of the mission and is in charge of public relations. The sections of the British permanent representation to the European Union in Brussels mirror the main goals of the EU. The mission has the following sections:12 — The political affairs section deals with institutional reform and the future of the EU. — The institution section is in charge of contacts to the other institutions, particularly to the European Parliament. — The agriculture and fisheries section manages all work under the Common Agriculture and Fisheries Policies. — The industry and internal market section embraces many technical councils in the fields of industry, single market, transport, energy, and technology. — The social, environmental, and regional affairs section covers all business in cultural, educational, environmental and health affairs together with regional policy, UK allocations from structural funds included. — The economic affairs, finance, and tax section covers the issues of the EC budget, the Economic and Monetary Union, and the Community’s finances.

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— The section for external relations, development, and trade policy deals with the relations of the EU with the rest of the world, including the Common Foreign and Security Policy and EU enlargement. — The justice and home affairs section deals with matters such as frontiers, immigration, visa policy, asylum, and cooperation in police, drugs, and judicial matters. — The Representation also has press, commercial, and management sections that are in accordance with British tradition, under the supervision of the political affairs section. A permanent mission to a defense alliance such as NATO needs different structures. The Norwegian delegation to NATO has a political affairs section, a defense affairs section, a defense and policy planning section, a defense resources section, and an administrative section.13 Permanent missions to an intergovernmental organization need not be independent agencies. A bilateral embassy accredited to the host state can at the same time serve as the permanent mission to an IGO. This is the pattern followed by African bilateral embassies in Addis Ababa (Ethiopia), which, at the same time, represent their countries to the African Union (formerly the Organization of African Unity). The South African bilateral ambassador in Addis Ababa, for example, also represents his country to the African Union.14 Their Staff Permanent missions to international governmental organizations are headed by permanent representatives. They have regularly the rank of an ambassador. The position of the ambassador to the UN, the EU, or NATO belongs to those of the highest rank in many foreign services and is filled with experienced diplomats. Some countries, however, have appointed politicians or other prominent personalities to head some of their permanent missions. The United States Permanent Mission to the United Nations in New York has

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been under the leadership of prominent politicians such as Henry Cabot Lodge (January 1953 to September 1960), Adlai E. Stevenson (January 1961 to July 1965), George Bush (March 1971 to February 1973), Daniel P. Moynihan (July 1975 to February 1976), and Madeleine Albright (February 1993 to January 1997).15 An agrément is not issued for an ambassador who is sent to an IGO: The organization has to accept whoever is sent by a member state. The host state has no right to accept or reject an appointee since the ambassador is accredited to an independent legal personality. Credentials, however, are also useful in relations between states and intergovernmental organizations because they make clear that credit may be given to all the newly appointed permanent representative may say in the name of his government. Heads of missions to the UN present credentials to the Secretary General, those accredited to a Specialized Agency to the Director General.16 Permanent representatives to the African Union present credentials to the Chairperson of the Commission.17 Ambassadors of non-member states accredited to the European Union present credentials to the President of the Council and to the President of the Commission.18 Permanent missions need staff members. Missions to an organization that deal with diverse issues need a large staff. The members of a permanent mission include, like those of embassies and consulates, three different categories: They have diplomats, an administrative and technical staff, and a service staff. Diplomats are those who perform the functions to represent the member state to the organization and who provide the participation of their state within the organization. The members of the administrative and technical staff work as secretaries, registrars, finance, security, or communication officers. They are usually home-based employees and alternate during their careers between embassies, consulates, and permanent missions. Permanent missions need also drivers, gardeners, craftsmen, janitors, and cleaners. These members of the service staff are typically local employees. Some permanent missions, for example missions to the UN, draw most of their members from their country’s foreign service.

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Other permanent missions need experts from various ministries and agencies who can handle special subjects. Since the permanent missions of EU member states in Brussels have to deal with issues of agriculture, fisheries, industry, economic, financial, social and environmental affairs, with development aid, immigration, visa policy, and cooperation between the police, specialists are needed who can deal with these topics. The specialists are seconded to their country’s permanent mission and they belong to the mission’s diplomatic staff. Many intergovernmental organizations have periodical general meetings. The UN General Assembly, for example, meets annually (Article 20 of the UN Charter). The European Council meets twice a year (Article 4, para. 2, of the Treaty on European Union, Consolidated Version 2006). These meetings are attended by the heads of state or government, foreign ministers, other ministers, and/or high-ranking dignitaries. The high ranking visitors are advised by officials and experts including members of the permanent mission whose knowledge and experience within the organization is needed. Altogether these officials form a delegation, called by Article 1, para. 1, no. 10, of the Convention of 1975 a “delegation to an organ”. Delegations coordinate their activities in delegation meetings. The basic positions of their governments are, however, usually laid down by instructions from capitals that are binding for delegations. The size of a permanent mission to an IGO is determined by the sending state. Article 14 of the Convention of 1975 restricts the size of a mission to “what is reasonable and normal”. Since the Convention has not yet entered into force, the restriction is only valid if it has been accepted in practice. This assumption, however, is doubtful. Host states feel that the restriction does not go far enough because it enables them only to exert indirect pressure and does not give them a tool to force a mission to downsize its staff.19 Privileges and Immunities of Permanent Missions and Their Members There is no uniform standard for the privileges and immunities of permanent missions and their members. The Convention of 1975

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has not entered into force, and even if it did so, it would establish rules only for universal organizations and the missions accredited to them. If one is looking for the privileges and immunities of a permanent mission to a specific IGO, one has to consult the operative agreements for that organization and the practice of the host state.20 Therefore, one has to check the same treaties that lay down the privileges and immunities for the organization that have been discussed in Chapter 15.21 A review of the various treaties reveals that IGOs, member states, and host countries have taken different approaches to accord privileges and immunities to permanent missions and their members. The members of the permanent missions to the United Nations in New York are well protected. Section 15 of the UN-US Headquarters Agreement of 1947 states that the United States accords to members of permanent missions and their staff “the same privileges and immunities, subject to corresponding conditions and obligations, as it accords to diplomatic envoys accredited to it”.22 The reference to “corresponding conditions and obligations” means, among other things, that the United States as host country can declare a member of a permanent mission persona non grata. This interpretation is confirmed by Section 13, letter b, no. 3, of the UN-US Headquarters Agreement stating that diplomats “shall not be required to leave the United States otherwise than in accordance with the customary procedures applicable to diplomatic envoys accredited to the United States”. In a number of cases the US administration has made use of this possibility and expelled members of permanent missions to the UN.23 The status of the 146 permanent missions in Geneva is similar to that of the missions in New York, but has a different legal basis. The agreement between Switzerland and the United Nations of April 19, 1946 contains the same restricted privileges and immunities that are mentioned in the General Convention.24 Switzerland, however, accords diplomatic status to the permanent missions and their members by analogy to the international conventions.25 A modern headquarters agreement concluded between Switzerland and the World Trade Organization (WTO) on June 2, 1995 declares

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explicitly the privileges and immunities of the Vienna Convention on Diplomatic Relations (CDR) applicable (Articles 17 and 23). This agreement goes even further than the CDR by granting an exemption from the value added tax and by confirming that the Swiss government will facilitate entry, residence, and exit of the members of permanent missions.26 Also other treaties equate permanent missions and their members with diplomatic missions and diplomats and grant them the same privileges and immunities. Article XII, sections 25 and 26, of the UN-Kenya Headquarters Agreement of 1975 gives permanent missions to UNEP the same privileges and immunities that Kenya accords to diplomatic missions and their members.27 Article 18 of the French-UNESCO Headquarters Agreement of July 2, 1954 treats the members of permanent missions to UNESCO like diplomats.28 Article 11 of the Protocol on the Privileges and Immunities of the European Communities of 1965 declares laconically that representatives of member states “enjoy the customary privileges, immunities, and facilities”.29 It is difficult to discover the rules of customary law regarding permanent missions and their members. It may be easier to understand this provision as a reference to the CDR. 30 The General Convention of 1946 and the Convention concerning Specialized Agencies of 1947 take a more restricted approach towards granting privileges and immunities.31 The pattern of these conventions is repeated by various headquarters agreements, not only by the UN-Swiss Headquarters Agreement of April 19, 1946, but also by the Headquarters Agreement between Switzerland and the WIPO of December 9, 1970 and the Agreement between the UN, the FAO and Italy concerning the World Food Programme of March 15, 1991.32 These treaties do not mention permanent missions, but refer to representatives of members to sessions of organs. Since these duties are also performed by members of permanent missions, the provisions of these treaties are applicable to these members. According to these international treaties representatives of member states do not enjoy comprehensive inviolability, but only immunity from arrest or detention and from legal process with

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regard to official acts.33 They are granted inviolability of documents and freedom of communications. Since representatives of member states have to transit the host country it was important to exempt them from immigration restrictions and from baggage inspection. Finally, the treaties contain a vague reference to the privileges and immunities that are enjoyed by diplomats. They are declared applicable for representatives of member states as far as they are not inconsistent with the previously mentioned restrictive provisions. Section 14 of the General Convention makes it clear that the functional approach is the conceptual basis for granting privileges and immunities to members of permanent missions.34 It states that these exemptions are not granted “for the personal benefit of the individuals themselves, but in order to safeguard the independent exercise of their functions”. The Convention draws the consequence that a state is obliged to waive the immunity of an individual if “the immunity would impede the course of Justice”. This obligation can, however, not be enforced. These restricted privileges and immunities are only applicable if there is no basis for a full diplomatic status. Permanent Representatives and Missions of Non-Member States So far the focus has been on permanent missions and representatives of member states to intergovernmental organizations. Many IGOs invite or accept representatives of non-member states. In the practice of the UN family and the Council of Europe, for example, these representatives are called (permanent) observers. Other IGOs, for example the EU, do not use this term. Representations of non-member states are called missions or delegations.35 Different international governmental organizations have developed different rules on how to deal with representatives of third countries. For many years, neutral countries such as Switzerland and the divided countries such as Germany, Korea, or Vietnam were not members of the United Nations.36 When they wished to send an observer to the UN, they informed the Secretary General, who

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indicated his agreement by acknowledging the receipt of that information.37 The Federal Republic of Germany based its claim to become a formal observer at the UN on the fact that it was recognized by the majority of UN members and was a member of all specialized agencies of the UN system.38 The Federal Republic of Germany set up an observer mission in New York in 1951. It maintained this mission until 1973 when both German states became UN members. After Switzerland, which had preferred voluntarily to remain outside the UN, Timor-Leste and Montenegro became UN members, the United Nations became a truly universal organization of 192 members.39 The Holy See, a traditional subject of international law, continues to be represented to the UN by an observer mission. It does so in order “to maintain absolute neutrality in specific political problems”.40 The list of observers that have been invited to the UN General Assembly comprises international organizations, for example the African Union and the European Community, and other entities such as Palestine.41 The Council of Europe has developed strict rules concerning observers. Observer status may be granted to a state “willing to accept the principles of democracy, the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms”.42 Observer status was granted to Canada, the Holy See, Japan, Mexico, and the United States.43 States that enjoy observer status may appoint a permanent observer to the Council of Europe. Since the European Communities are the focus for European unification, many third countries have been eager to establish relations with the communities. After consent has been reached on the establishment of relations, the ambassador of the third country presents credentials to the President of the Council of Ministers and the President of the Commission.44 Non-members accredited to the EU may establish permanent missions. A third country mission represents the sending country to the organization. It can perform the usual “bilateral” functions, such as maintaining contacts with the organization, negotiating, and concluding agreements with the organization and reporting on the

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organization’s activities. A permanent mission of a non-member state cannot take part in the formal decision making of the organization; it does not have voting rights. Whether and to what degree it can influence decisions of the organization depends on the rules of the organization for observers as well as on the political weight of the mission’s home state. Some IGOs have generous rules for observers. Observers to the Council of Europe are allowed to attend committee meetings. Observers invited to the UN are allowed to address the General Assembly. The permanent observer missions of states to the UN attend the meetings of the Security Council, the General Assembly, and the main committees. Since decisions are prepared by various groups, access to these groups is important for observer missions if they wish to have an impact on preparing decisions that are important for them. Thus, an observer mission can do lobbying and perform political functions within an IGO. The Observer Mission of the Federal Republic of Germany to the United Nations, for example, took part in the efforts to prevent the intrusion of the German Democratic Republic into the UN system, until in 1973 both German states became members of the organization.45 The regulations in force for a specific IGO sometimes determine the privileges and immunities for a third country mission. Article 17 of the Protocol of the European Communities of April 8, 1965 stipulates that missions of third countries accredited to the Communities should be accorded “the customary immunities and privileges by member states in whose territory the Communities have their seat”.46 The “customary immunities and privileges” are also in this case to be understood as reference to the rules of the CDR.47 If operational agreements do not contain provisions regarding privileges and immunities of observer missions, host states can grant them.48 Austria has granted members of permanent observer missions “who hold a rank comparable to that of diplomatic personnel of a diplomatic mission” functional immunities.49

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Chapter 17

International Secretariats and Officials

The International Mandate International governmental organizations have normally one organ that takes care of the organization’s common interests. This organ is usually called the secretariat. This term is, for example, used within the UN system. Sometimes different expressions are chosen. The secretariat of the International Labor Organization (ILO) is called the International Labor Office and that of the Organization of American States (OAS) the Pan-American Union. In the EU system the Commission and its staff members are in charge of common interests. The staff members of a number of IGOs, the international officials (the international civil service), have become important players on the diplomatic stage. Most of the international officials are employed at the headquarters of their respective organization. Others, however, are working abroad in external missions established by their organizations. Rules and practices concerning international officials working at headquarters are discussed in this chapter. As was mentioned in Chapter 1, it was not intended that international officials became important players on the diplomatic stage when the first international organizations were founded. For example, the task of the International Office of the Universal Postal Union (UPU), established in 1874, was to serve as an instrument for information and consultation for administrations (Article 15 of the Treaty Concerning the Formation of a General Postal Union).1 317

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In other words, the secretariat’s functions were restricted to administrative business. Administrative work is understood as a supportive function that keeps the organization going by managing its day-to-day operations. The task of the officials of many secretariats has now expanded.2 The members of the staff are permanently present and can fill in emergency situations. They know the organization’s machinery better than anyone else. Secretariats often have a coordination function. They put together programs for conferences and meetings and orchestrate the activities of various bodies of the organization. They also can make suggestions. These activities give the international officials a chance to take part in shaping the organization’s policy and to play a role in decision-making. A trend can be observed that many intergovernmental organizations, and with them their officials, have become more independent. In these cases they assume a political function. For example, during the Suez crisis in 1956 UN Secretary General Dag Hammarskjold set up a United Nations Emergency Force (UNEP), a military force made up of troops from some UN member states. UNEP, the first force wearing the blue helmets, succeeded in bringing peace to Sinai.3 It is the task of the UN Secretariat to stand up for the global interests of the organization. Hammarskjold put the aims of the UN of creating a harmonious world order above the interests of member states. The UN has various bodies that take care of the national interests of member states. The Security Council is such a body, the permanent members even having the right to block decisions that are not in their national interests. National interests and international interests may clash. This was the situation that Secretary General Hammarskjold faced during the Suez crisis. Secretary General Kofi Annan was in similar difficulties when he expressed his opposition to the US-led war in Iraq and called it illegal because it was not based on a Security Council resolution.4 Their Functions Every secretariat of an IGO fulfills administrative functions.5 The members of the staff provide meeting places, the necessary facilities

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and interpretation as well as translation services. They intervene during debates and inform the public about the organization’s activities. They prepare and circulate documentation for and records of meetings. Often they are requested to submit background papers and reports. They collect and publish statistics. These administrative tasks are linked to the organization’s international mission. Therefore, they are of an external character. Secretariats have to take care of their own organization, for example, of their facilities and their human and financial resources. This administrative work is of an internal character. The larger a secretariat gets, the more it has to focus on self-administration. Secretariats may also fulfill political functions. A clear distinction between administrative and political functions of a secretariat cannot be made because the transition is fluid. Since the political functions of international governmental organizations are so diverse it is difficult to list them. The approach suggested by Alan James is helpful. In an effort to describe the political influence of secretaries general he differentiated between regulatory, promotional, allocative and consultative organizations.6 This approach will be used in the following text. The supranational category is added. A regulatory (technical) organization is established to achieve a certain degree of cooperation in specific matters that continue to remain under the control of member states. The International Telecommunication Union (ITU), the Universal Postal Union (UPU), the World Meteorological Organization (WMO) and the International Maritime Organization (IMO) are examples. Since member states continue to interact, the secretariat seldom has the chance to become politically active as the example of the UPU illustrates. The UPU was founded in 1874 as the General Postal Union.7 In 1948 the UPU became a specialized agency of the UN system and in 1964 its structure was changed when a new constitution was introduced.8 Nevertheless the main task of the UPU has remained the same, that is to form “a single postal territory for the reciprocal exchange of correspondence” (Article 1 of the Treaty of October 9, 1874).9 Since the Postal Congress in which all member states are represented meets only every four years, two councils fill in the

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meantime, the Council of Administration and the Postal Operations Council. They perform most of the regulatory work. The International Bureau is headed by a director general. The Swiss government no longer proposes the members of the staff; they are appointed and promoted by the director general.10 The International Bureau has the function of supporting the Union’s other organs logistically and technically. It is also the focal point for information and consultation. It serves as the clearinghouse for transit accounts and for accounts arising from the use of international postal reply coupons.11 The Director General has only modest means of influencing the decision-making of the Union, for example by submitting proposals to the two councils and by preparing the draft strategic plan for the Postal Operations Council.12 The golden age when the Bureau comprised only seven officials is gone. With 150 officials the Bureau is still comparatively small. Therefore, with only modest capacities, the Common Services are needed for internal administrative work.13 Recently the Bureau has assumed “a stronger leadership role” by using its postal technology center in developing postal markets and monitoring the quality of services.14 The UPU insists that it is not involved in politics.15 The Union does not set postage rates and decide about the postal operations of member states. Thus, the Bureau performs primarily administrative functions. Promotional organizations focus on narrow goals, for example on programs or proposing standards. The OECD, UNESCO, ILO and World Health Organization (WHO) are examples of this type of organization. The secretariats of these organizations wield considerable political influence because it is tolerated by member states that they are driven by the secretariat to fulfill the organization’s goals. Clashes between the common interests of the organization and the national interests of member states are rare. This can be demonstrated using the OECD secretariat as an example. The OECD grew out of the Organization for European Economic Cooperation (OEEC) in 1961, and has the task of promoting strong economies in member countries, the expansion of world trade and cooperation with developing countries (Article 1 of

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the Convention of December 14, 1960).16 The organization has become well known for producing statistics and setting standards.17 It has made, for example, recommendations for guidelines for multinational enterprises, suggested a model agreement for simultaneous tax examination and promoted an anti-bribery convention. The thirty member states are represented in the Council and in 200 committees. The Secretariat, headed by a Secretary General and made up of 2,500 officials, supports the Council and the committees administratively and technically. It also provides interpretation and translation. The work of the organization’s departments and directorates parallels the work of the committees. Their work focuses on the political economy. The secretary general is authorized to submit proposals (Article 10, para. 2, of the OECD Convention). The economic surveys that the OECD publishes of each member state once every 18 months and the reports of the Program for International Student Assessment (PISA), prepared and managed by the secretariat, have a considerable political impact on member states. No doubt, the secretariat of a promotional organization like the OECD has political influence. Allocative international governmental organizations such as the IMF, the World Bank or the United Nations Development Program (UNDP) distribute resources. Their secretariats have considerable power since decisions are needed continuously and only the members of the secretariat are permanently available. The UNDP serves as an example. Though the UNDP is only a subsidiary body of the UN, its administrator and the staff are autonomous.18 According to Rule 11 of the Rules of Procedure UNDP’s representative organ, the Executive Board, has its own Secretariat that is in charge of support services.19 The UNDP staff members focus on development cooperation in five core areas: good governance, poverty reduction, crisis prevention and recovery, energy and environment, and preventing the spread of HIV/AIDS. As the main UN body for technical assistance UNDP has great influence. The administrator has been given far-reaching authority since he is in charge of the implementation of the program and has operational control

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over projects.20 He is even authorized to appoint his own staff. UNDP has various offices and bureaus at UN headquarters in New York. Five regional offices look after the country offices abroad. Other units deal with topical issues, such as resources and strategic partnerships, development policy, crisis prevention and recovery, human development reports, and evaluation of projects.21 Different offices, such as the bureau of management and the communications office, are responsible for internal administration. As of June 2006 the UNDP staff comprised about 7,000 persons. The granting of development assistance, the core task of UNDP officials, happens in the framework of development policies. Since the officials of UNDP focus on the universally accepted aim of help for self-help, they have developed a commitment to that purpose and thus a high degree of authority. Consultative organizations provide a platform for discussing and/or resolving international problems and issues. The Arab League, the Commonwealth and the United Nations, for example, fall under this category. The secretariat of such an IGO wields political influence if it is charged with executing the decisions of the representative bodies and promoting the broad goals of the organization. The UN secretary general and the UN secretariat serve as examples. The secretary general’s involvement in diplomacy has various sources.22 Article 99 is the most obvious source for political activities by the secretary general.23 This provision states that the secretary general “may bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security”. On a number of occasions, this clause has been invoked by the secretary general.24 For example, in July 1960 Dag Hammarskjold summoned the Security Council with regard to the Congo crisis. In November 1979, Kurt Waldheim requested an emergency meeting of the Security Council to discuss the problems arising from the Iranian seizure of the US Embassy in Teheran. In August 1989, Javier Pérez de Cuéllar asked the Security Council to discuss the fighting in Lebanon. Though Article 99 has been invoked directly or indirectly

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less than one would think, it is the crucial provision that gives the office of the secretary general a political dimension. Since he can only assess whether there is a threat to peace if he has sufficient information, he must be in a position to initiate fact finding. The General Assembly has authorized him to undertake fact-finding missions.25 Besides the Charter, the main organs of the UN have assigned many political functions to the secretary general based on Article 98 of the Charter. For example, peacekeeping has given the secretary general additional political duties because he directs and manages the missions with the support of the secretariat’s department of peacekeeping operations.26 Secretaries general have also offered their “good offices” to mediate or settle conflicts. For example, in 1999 Secretary General Kofi Annan made crucial contributions to end the hostilities in East Timor.27 The secretary general’s efforts to prevent disputes have been repeatedly encouraged by the General Assembly.28 Also his function as chief administrative officer of the United Nations (Article 107 of the UN Charter) contributes to his political clout. The rules of procedure for the General Assembly and the Security Council give him rights and possibilities of participating and influencing the discussions. He can propose agenda items and address these bodies. The many reports, which he is asked to prepare, give him ample opportunities to influence decision making. However, the secretary general’s possibilities for political actions should not be exaggerated. As long as he meets with strong resistance from governments, he has little scope for independent interventions. For example, in February 1998 Secretary Kofi Annan reached understanding with President Saddam Hussein that also the presidential palaces will be open to UN weapons inspectors.29 The secretary general’s success was celebrated at the time since it seemed that war could be avoided. However, Annan could travel to Baghdad only after also the US administration had given up its objection against this trip. With regard to political functions, UN practice has stressed the distinction between the secretary general and the secretariat.30 The secretary general may extend his functions to the staff members who then share his political role.31 Conceptually, the secretary

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general and the staff form a common entity, the Secretariat (Article 97, sentence 1, of the Charter).32 The staff members have also many additional means at hand to influence political decisions taken by UN bodies. They do so, for example, by helping the other principal organs of the United Nations formulate and develop the goals of the UN.33 Giving advice and implementing decisions provide many opportunities for UN officials to influence the tide of events. The UN Secretariat has expanded to a machinery of 8,900 regular members.34 It has often been reformed and restructured. Its organization reflects its functions. The Secretariat has departments and offices for political affairs, disarmament affairs, peacekeeping operations, coordination of humanitarian affairs, economic and social affairs and an office of legal affairs.35 The department for General Assembly and conference management provides secretarial services to other UN organs. The department of management is in charge of internal administration. The office of internal oversight services is mainly responsible for audit, monitoring, inspection and evaluation services. The European Commission is the organ in charge of the common interests of the European Union (EU). Accordingly, Jacques Delors, Commission President from 1985 to 1995, has called the Commission the “custodian of European interests”.36 It comes as no surprise that the European commission has left the model of a purely administrative instrument far behind. The Commission, the Commissioners and their staff members, are relieved from supporting the other organs of the EU, the European Parliament and the Council, administratively, since these organs have separate secretariats. Thus the Commission can focus on its many functions to promote integration. The Commission proposes legislation, manages and implements policies, enforces European law and negotiates agreements with other countries.37 The Commissioners and their staff members have reached a considerable degree of independence.38 The right to submit proposals is the main basis for the Commission’s independence. The administrative organization that supports the Commissioners is divided into directorates general and services.

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These units prepare policies. The responsibilities of the directorates general include particular policy fields, such as agriculture and rural development, competition, development, economic and financial affairs, education and culture, employment, social affairs and equal opportunities, energy and transport, enlargement, enterprise and industry, environment, external relations, health and consumers, information society and media, internal market and services, justice, freedom and security, regional policy, research, taxation and customs union, and trade.39 The Commission with its large staff of approximately 31,000 officials (in 1998) has to administer itself.40 This is primarily the task of the directorate general for personnel and administration. The relationship between the Commission and the Council of the EU is, however, in a constant state of flux. There have always been tensions between the Commission and member states. Since the 1990s member states have reasserted their power.41 Only in matters of the first, the community pillar that typically deals with economic matters, the Commission alone can submit proposals (Article 251 of the Treaty Establishing the European Community, Consolidated Version 2006). In issues of the second pillar, the common foreign and security policy, and of the third pillar, the police and judicial cooperation in criminal matters, proposals can be made by the Commission and member states (Articles 22 and 34, para. 2, of the Treaty on EU, Consolidated Version 2006). The greater activities of the European Council, the council of the heads of state or government of EU member states, have also diminished the role of the Commission. It is obvious that since the beginning of the 1990s the national interests have come to the fore within the EU. Tensions between the interests of member states and the common interests of the organization are inherent to IGOs. In the case of conflicts the national interests of states often prevail. The governing bodies that take care of their national interests give states the necessary platforms to assert their goals. Sometimes the organization’s common interests prevail when member states agree or reach a compromise or when the secretariat has enough authority to realize the organization’s common interests. IGOs are often but

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not necessarily a dependent variable. IGOs are useful platforms for diplomacy, that is for the efforts to reconcile interests of states. Furthermore, IGOs help to counter the disorder in international relations.42 International Officials at Headquarters IGOs have proliferated. So have their staff members. Any person through whom an IGO acts is an international agent.43 There is no reason to make a distinction between those officials who do political work and those who do external or internal administrative work because they all carry out functions of the organization. It is the task of international officials to stand up for the organization’s common interests. The organization’s officials are those with whom the officials from permanent missions and delegations interact. The members of the diplomatic staff of a permanent mission will mostly deal with their counterparts among the organization’s officials. In the UN system these are the officials belonging to the professional and higher categories (P1 to P5, D1 and D2, assistant secretary general and under secretary general).44 In the EU institutions the peers of the diplomats are the grade AD 5 to AD 16 officials who belong to the policy-making and policy-management staff.45 Candidates for these jobs in the UN or EU system must usually possess a university degree just like the candidates for a country’s diplomatic service. An international official works for the organization’s common interest only. Therefore, he must be independent of the influence of member states and particularly of his home state. The responsibilities of an official of an IGO are of a purely international character. The official must pursue the organization’s interests, not national interests. This idea has found its expression in Article 100 of the UN Charter: Officials should not receive instructions from any authority outside the organization and member states should not try to influence them. Other IGOs have similar provisions.46 The independence of a staff member can be fostered by giving him or her a permanent appointment.47 IGOs, however, have

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various forms of temporary appointment. If an official is, for example, seconded to an IGO by his government, he works for a period of time for the organization but returns to his original governmental employment after this period has come to an end. It is reasonable to suspect that such an official will not forget his later return to his original employment and behave accordingly. Dobrynin, a Soviet career diplomat and later for many years Soviet Ambassador in Washington, held the post of UN undersecretary general for special political affairs from 1957 to 1960. He has written that his principle task “was to ensure that the Soviet view was not ignored by the secretary general of the UN”.48 Even permanent appointments do not seem to solve conflicts of loyalty. Many infringements of the principle of independence of international officials have been reported and have resulted in proposals for reform. The concept of a purely international civil service can only be realized if the international officials are really committed to the common interests of the organization. This is easier said than done.49 This is particularly true for the UN system.50 There are many ways to foster national interests. The recruitment of staff members offers opportunities and member states try to pressure the secretariat to employ their nationals. Informal arrangements among the permanent members of the Security Council have existed since the beginnings of the UN to the effect that their nationals hold the Secretariat’s most important posts. Thus, some posts became “hereditary”, the holder being succeeded by a national from his country. Networks of officials from the same countries have been built. These cliques have tried to foster their countries’ interests. Member states have established influence over their nationals in the secretariat by granting them subsidies in violation of the Staff Regulations that prohibit accepting “remuneration from any government”.51 When employing staff members the secretary general is obliged to respect the principles of qualification and adequate geographical distribution. This mix does not always work and the principle of equitable geographical distribution has given member states an instrument to place their nationals into positions in the secretariat.52

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Reforms have been proposed to strengthen the independence of the UN’s international civil servants. Some of these proposals have been implemented. The present staff regulations, for example, try to assure the international character of UN officials and oblige the secretary general to secure their independence. This is not enough. The attitude of member states is crucial. If they do not respect the UN officials’ purely international character no progress will be reached. It is the function of the secretary general and the secretariat to take responsibility for the common interests of the UN. The common interests that are defined in Article 1 of the Charter in a vague and global way may clash with national interests of member states. Therefore, member states are tempted to take precautions that their national interests are taken care of within the secretariat. Certainly, many UN officials have stood for the common interests only. Other officials did not do so with the result that the secretariat, contrary to the concept of the Charter, has partly become an organ to look after the national interests of individual member states. Officials of the EU have to be loyal to the Communities, but are “sometimes influenced by the national background”.53 Thus, the EU is facing tensions between supranationalism and intergovernmentalism. Convinced Europeans have been the backbone of the Commissions and their officials. There have, however, been influences stemming from national identities. This is true for recruitment and promotion.54 Maintaining a national balance has offered opportunities for member states to protect their interests.55 Reforms have tried to deal with these problems. There is now a code of conduct for Commissioners that starts from the assumption that ruling out all risks of a conflict of interests helps to guarantee the Commissioners’ independence.56 For staff members a code of good administrative behavior is in force and the Commission is trying to raise awareness for ethical principles.57 Privileges and Immunities of International Officials at Headquarters International officials can perform their functions to take care of the organization’s common interests only if they are independent from

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the coercive power of the territorial states. International officials are awarded those privileges and immunities that are necessary for the independent exercise of their functions. This concept that is expressed in Article 105, para. 2, of the UN Charter, is valid for all international governmental organizations.58 Since there is no universal treaty in force protecting international officials, recourse must be taken to the international instrument relevant to a specific IGO.59 The privileges and immunities for the officials of the UN secretariat are laid down in the General Convention of 1946, those for the officials of the secretariats of the Specialized Agencies in the Convention of 1947.60 The IAEA has passed a separate agreement on Privileges and Immunities on July 1, 1959 that follows the pattern of the Convention of 1947.61 Many headquarters agreements supplement these treaties. Some of the headquarters agreements refer to the Conventions of 1946 and 1947, but provide for the full range of privileges and immunities. This is the pattern chosen, for example, by the Agreement between the UN and Austria concerning UNIDO of April 13, 1967 and the UN–Kenya Agreement concerning UNEP of March 26, 1975.62 The Agreement between the UN and the United States of June 26, 1947, however, does not repeat the provisions of the General Convention, but lays down additional rules particularly for the transit of officials.63 Switzerland has concluded an Agreement with the UN on April 19, 1946 that grants similar exemptions as the General Convention.64 The patterns of granting privileges and immunities to Specialized Agencies in Switzerland differ. Switzerland and the World Intellectual Property Organization (WIPO) concluded an Agreement on December 9, 1970 that lists all the privileges and immunities.65 Detailed Headquarters Agreements concerning Specialized Agencies and UN subsidiary bodies have been concluded, for example, between France and UNESCO on July 2, 1954,66 between the UN and Kenya concerning UNEP on March 26, 1975,67 between the UN, the FAO and Italy concerning the WFP on March 15, 199168 and between the UN and the Netherlands concerning the International Tribunal on May 27, 1994.69 Officials of international organizations outside the UN system enjoy much the same privileges and immunities, for example the

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officials of the World Trade Organization,70 of the OECD,71 of the Council of Europe72 and of the European Union.73 In spite of some differences, it is basically the same set of privileges and immunities that is granted officials of various secretariats of intergovernmental organizations. — International officials are immune from legal process in regard to all acts performed in an official function. In other words, they enjoy functional immunity. Some treaties, such as Section 27, lit. a, of the Agreement concluded between Austria and the UN concerning UNIDO on April 13, 1967 and Article 32, lit. b, of the Agreement between Switzerland and the WTO of June 2, 1995 stress that this immunity continues after the officials have left the organization. Section 30, lit. a, of the Agreement of March 15, 1991 waives the immunities of preventive custody of WFP officials in case of flagrancy or a severe crime. Since crimes may be committed on the occasion of official business but not as a part of it, this provision is not a departure from the general principle. — All relevant international instruments provide for the exemption of international officials from national service. Many treaties like the General Convention (Section 18, lit. c) provide this in an absolute way. Other treaties like the Convention of 1947 (Section 20, para. 1) make the exemption dependent on municipal law of the state of which the official is a national. Switzerland has insisted in its treaties with IGOs, for example in the Agreement with the UN April 19, 1946 (Section 15, lit. c and Annex), that a certain number of Swiss nationals who serve as international officials can be enlisted for military duty. — Another important provision is the exemption of international officials from taxes on their salaries received from the organization. Some treaties add that these officials are exempt from taxes on their worldwide income (Section 27, lit. e, of the Agreement between Austria and the UN of April 13, 1967, Section 28, lit. e, of the Agreement between Kenya and the UN concerning UNEP of March 26, 1975). This exemption is less

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based on conceptual but on practical considerations.74 It is supposed to reduce the overhead costs of IGOs, which have to pay higher salaries in cases where international officials are taxed by their home state. It is also supposed to avoid inequality among officials resulting from the different tax tariffs in different states. Difficulties have been created by the reservation of the United States excluding US nationals and permanent residents from the exemption of taxation. The European Communities have found a way out of the difficulties. Officials of the Communities are exempt from national taxes on their salaries paid by the Communities, but they have to pay an internal tax (Article 13 of the Protocol of April 8, 1965). — International officials enjoy the privilege of customs and duty free imports. Most treaties follow the General Convention of 1946 and the Convention of 1947 to limit this privilege to the import of furniture and effects at the time when the official first takes up his post in the country in question. Other treaties, such as the Agreement of July 2, 1954 concerning UNESCO, permit the duty free import of cars and foodstuff. Switzerland subjects imports of international officials to its municipal customs regulations, for example by Article 33, lit. e, of the Agreement concluded with the WTO on June 2, 1995. It is worth noting that in the Agreement with the UN of March 26, 1975 (Section 28, lit. k) Kenya expressly permitted UNEP officials the purchase and sale of real estate. — All relevant instruments guarantee international officials freedom of movement. They enjoy free transit and are free from immigration restrictions and alien registrations. Many IGOs issue laissez-passers for their officials that are accepted as travel documents by member states. The rules for the UN are contained in Sections 24 to 28 of the General Convention. These laissez-passers come close to diplomatic passports issued by sending states to their diplomats. — International officials have to be given the same repatriation facilities as diplomats in times of an international crisis. The modalities for the departure of diplomats are now laid down in

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Article 44 of the Convention on Diplomatic Relations. This provision is important in case the relations are strained, severed or a war breaks out. Article 44 stipulates that diplomats be given the chance “to leave at the earliest possible moment”, The receiving state is obliged to make the necessary means of transport available in case of need — provided that it is still able to do so. Privileges and immunities can and should be waived in order not to impede the course of justice in cases where it can be done without damage to the organization’s interests. This idea is explicitly stated in Section 23 of the General Convention, in Section 22 of the Convention of 1947, in Section 21 of the IAEA Agreement of July 1, 1959 and in many other relevant treaties. Even if this rule is not explicitly stated it should be applied since it is a necessary consequence of the functional approach to international privileges and immunities.75 International officials enjoy exemption not for their personal benefit but in the interest of the organization. Accepting bribes, fraudulent acts, and espionage are not official acts. It is another result of the functional approach that privileges and immunities are effective in all member states of the organization, the official’s home state included. An international official must be particularly protected against coercion from his home state. Consequently, international privileges and immunities are effective erga omnes.76 Exceptions can only be accepted in cases an explicit reservation was made, like for example by the United States for the taxation of its citizens, by Switzerland for the military service of Swiss citizens and by Austria for the military service of Austrian citizens. Although the result that privileges and immunities take effect also against the home state, except when otherwise stipulated, is convincing, it is not generally accepted.77 The reason for the resistance is to be found in the unwillingness of states to grant privileges and immunities to their own citizens. In bilateral relations it is a rare event that a diplomat working for a sending country is a national of the receiving country, since Article 8,

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para. 1, CDR stipulates that diplomats “should in principle be of the nationality of the sending state”. In the exceptional cases that a diplomat has the nationality of the receiving state, Article 38, para. 1, of the CDR reduces his immunities to “official acts performed in the exercise of his functions”. This is to say that he enjoys exemptions only for “acts performed on behalf of the sending state”.78 Article 38, para. 1, of the CDR cannot be applied to multilateral relations since the status of international officials differs from that of diplomats. Those who enjoy privileges and immunities are the organization’s officials. Who exactly are these officials? Section 17 of the General Convention left it to the secretary general to specify the precise categories. The secretary general did so, and the General Assembly accepted the definition that privileges and immunities are granted “to all members of the staff of the United Nations, with the exception of those who are recruited locally and are assigned to hourly rates”.79 This wide definition has become the rule for international governmental organizations.80 Many international instruments go further. They grant diplomatic privileges and immunities to the heads of the secretariats, the secretary general, the director generals or the executive directors general, and to other high-ranking officials. A number of treaties, such as the Agreement of March 15, 1991 concerning the WFP (Section 31) or the Agreement of June 2, 1995 concerning the WTO (Section 31) provide for granting diplomatic privileges and immunities to officials having the grade of P5 and above. Among an IGO’s staff the officials having the grade of P5 or a similar grade and above are indeed the counterparts of diplomats. Their status is, however, different from that of diplomats. Diplomats live in two worlds, the systems of the sending and the receiving country. International officials are no longer subject to their home states. Therefore the Council of Europe tried to limit the privileges and immunities for international officials by basing them on necessity.81 These efforts failed. So did the efforts promoted by the International Law Commission to expand them. The result was the failed Convention on the Representation of States in Their

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Relations with International Organizations of a Universal Character of 1975. Therefore, there is no other way, but to take recourse to the international instruments relevant to an IGO if one wants to find out the precise provisions in force for the protection of the officials of that organization.

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Chapter 18

External Missions of International Governmental Organizations

Their Proliferation In the period after the Second World War something extraordinary happened: International governmental organizations had hardly been established when they started to send external missions abroad. Meanwhile, external missions of IGOs have spread over the globe. Currently, the United Nations Development Programme (UNDP) maintains 166 country offices, the World Health Organization (WHO) 147 country offices, the European commission 123 delegations, the World Bank more than 100 country offices, the Food and Agriculture Organization (FAO) 74 country representations, and the Asian Development Bank (ADB) 26 field offices. Many other IGOs are represented abroad, such as the International Monetary Fund (IMF), World Health Organization (WHO), United Nations Children’s Fund (UNICEF), United Nations High Commissioner for Refugees (UNHCR), United Nations Office on Drugs and Crime (UNDCP), United Nations Population Fund (UNFPA), United Nations Industrial Development Organization (UNIDO), International Labor Organization (ILO), World Food Programmme (WFP), and Organization of Islamic Conference (OIC). The proliferation of external missions of IGOs illustrates that international organizations play important roles in international relations. It is plausible that an IGO establishes relations with 335

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non-member states and exchanges missions with them. This is what the European Union is doing. It is less plausible that an IGO sends external missions to member states. This is what most agencies previously mentioned are doing. The member states establish the organization and send permanent missions to the organization’s headquarters. Their task is to represent the member state to and within the organization. One would think that this channel is sufficient to deal with all items on the agenda between the organization and member states. Good reasons must exist to establish an additional channel of communication in the member state by setting up an office there. Shortly after the United Nations had been established, it considered rendering technical assistance to developing countries. One country under consideration was Haiti. In December 1949, the ECOSOC decided to appoint a “Representative of the Secretary General” to Haiti to help in rendering aid and to help the Haitian government define its needs.1 In May 1950, the first resident representative took up his duties. Thus, it was a very specialized mission that was to be performed. It makes sense to categorize missions of IGOs as specialized missions.2 Most of the specialized missions sent by the various UN agencies and bodies are dealing with development assistance to the receiving countries. Whether such a multitude of specialized missions is really necessary is doubtful. Whenever various members of the UN system maintain missions in the same country, there are calls for coordination. Meanwhile the UNDP resident representatives have been assigned a central coordinating role for all UN aid on the ground. Coordination continues to be a problem. Coordination, however, should not absorb too much of the capacities of specialized missions. The expansion of specialized missions sent by IGOs has been carried further: IGOs have exchanged missions among each other. Most specialized agencies have liaison offices at UN headquarters in New York. The European Commission established missions at the headquarters of the UN, FAO, IAEA, UNIDO, UNESCO, and the OECD. The question is justified whether this development goes too far.

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When an IGO sends a mission to another IGO, a state that is a member of both IGOs actually represents itself towards itself. Since member states finance these specialized missions, some countries, particularly large contributors, might ask whether they could not perform the duties, for example in the field of development aid, themselves more economically. In the following text, the FAO representations, the country offices of UNDP, the field offices of ADB, and the delegations of the European Communities are discussed as examples of external missions of international governmental organizations. The FAO in the Field The FAO, a specialized agency of the UN system with headquarters in Rome, serves as a network to disseminate knowledge and expertise on agriculture with the aim to raise the levels of nutrition. The organization also manages more than 2,000 field projects throughout the world. It maintains five regional offices, nine sub-regional offices, 74 country offices (excluding those hosted in regional and sub-regional offices), and five liaison offices.3 The FAO has liaison offices with the United Nations in New York and Geneva and with the European Union in Brussels. The regional offices for Africa in Accra, for Asia and the Pacific in Bangkok, for Europe in Budapest, for Latin America and the Caribbean in Santiago, and for the Near East in Cairo plan and implement the organization’s activities in the area. They are supported by the sub-regional offices. The country offices represent the FAO, advise host governments and implement field projects. Most country offices are fully staffed by FAO representatives (FAORs). About 1,000 staff members of the altogether 2,800 FAO officials work in field offices. They enjoy the functional privileges and immunities of the Convention of 1947. They are protected with respect to activities performed in their official capacity. As previously mentioned, the term “officials” included all staff members with the exception of those who are hired locally and assigned to hourly rates. The FAO has reminded its staff members that they

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are granted privileges and immunities not for their personal benefit but in the interest of the organization.4 The structure of FAO has recently been evaluated by an independent external committee. The report, submitted in September 2007, found that the organization’s infrastructure does not function well and suggested a decentralization of the organization’s activities.5 Regional offices should receive greater autonomy and focus on analysis and policy advice. The sub-regional offices should become the technical support arm of the FAO. Presence, structure, functions, and staffing of the country offices should be reconsidered. The committee found that in many cases the justification and rationale for the existence of a country office was questionable. Apparently the growth and structures of the FAO field offices have gotten out of hand. The FAO has acted on the suggestions and is working on reforms.6 UNDP Country Offices The UNDP was set up by the General Assembly in 1965 by merging the Expanded Programmme of Technical Assistance and the Special Fund.7 Though UNDP is called a Programme and while it is in a technical sense a subsidiary body (Article 7, para. 2, and 22, of the UN Charter), it is an international governmental organization.8 Accordingly, UNDP has an organ that represents the common interests, the administrator, and an organ that represents member states’ interests, the Executive Board.9 UNDP concludes cooperation agreements with all countries that request its assistance. These agreements follow the pattern contained in the “Standard Basic Assistance Agreement between the recipient Government and the UNDP” (SBAA).10 These agreements give UNDP the right to “maintain a permanent mission, headed by a resident representative” in the recipient country. These permanent missions are usually called country offices.11 The resident representative has various functions. He is charged with carrying out the development projects in the recipient country. This is a demanding task since UNDP is focusing on many different

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issues as was previously mentioned. It is the resident representative’s duty to maintain liaison with the host government. He is charged with informing the host government “of policies, criteria and procedures of the UNDP and other relevant programmes of the United Nations” (Article II, para. 4, lit. a, of the SBAA). It is also his duty to assist the host government in the preparation of projects and programs. He is no longer told, like the first UNDP resident representative to Haiti, to help the host government defining its needs. With regard to the sensitivities of the developing countries it has been said many times that the responsibility of formulating its country program and coordinating and executing the projects is with the recipient country.12 Discussing development programs and projects result in an involvement in the internal affairs of the host country, however carefully the approach may be. The Basic Agreement gives the resident representatives authorization to negotiate with the appropriate organs of the host government. He is not forced to go through the central authority. As already mentioned, the UNDP resident representative is also the resident coordinator of all operational activities for development by UN agencies in the host country.13 The aim is to improve the efficiency of the activities of the various branches of the UN system at the field level.14 The role of the resident coordinator was first recognized by the General Assembly in December 1979 and later often confirmed.15 The UNDP resident representative coordinates the activities of all UN agencies active in the host country. For example, in Ethiopia the UN country team comprises 25 different agencies.16 Thus the UNDP resident representative in his function as UN resident coordinator assumes the leading role of the UN country team. Therefore, resident representatives are supposed to be accredited to the head of government of the host country. The resident coordinator is supposed to coordinate also the humanitarian assistance at the country level. The Secretary General has delegated his right to designate the resident coordinators to the UNDP Administrator. The resident representative needs a staff. According to Article II, para. 4, lit. b, of the SBAA, he may have “such other staff as

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the UNDP may deem appropriate to its proper functioning”. UNDP country offices are organized in a way that is necessary to fulfill their functions, as the example of the office in Uzbekistan illustrates.17 The office is headed by the resident representative who is concurrently the resident coordinator. He has one deputy. The office is divided into units for environmental governance, good governance, business center coordination, finance, human resources, general administration, logistics, refugee support, and information and communications technology. There are altogether 78 people working in the UNDP country office in Tashkent. The UNDP country office in Uzbekistan shows similarities to that of an embassy. There are good reasons to suspect that the UNDP country office in Tashkent has more officials than a medium-sized embassy. UNDP country offices and their officials concentrate on development cooperation, but apart from their narrower focus, function in a way similar to embassies. They, therefore, need protection similar to that of an embassy. The resident representative and his staff enjoy the privileges and immunities of the General Convention of 1946 since UNDP officials belong to the UN Secretariat. To avoid any doubt Article IX of the Basic Agreement declares the provisions of the General Convention applicable. What UNDP staff of country offices and all other international officials working in external missions really need is protection against any form of attack. Unfortunately, many international officials have been attacked, injured or even killed on duty. The relevant international instruments such as the General Convention do not contain explicit obligations for host states. Since host states are responsible for law and order in their countries, they are also responsible for the security of their guests. International officials are included among the persons protected by the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons including Diplomatic Agents of 1973. All of these responsibilities address the territorial state. International officials work, however, often in places where the territorial state is unable to guarantee their security. The attack on the Canal Hotel that served as headquarters for the UN staff in Baghdad on August 19, 2003 is a case

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in point.18 Numerous international and Iraqi UN workers were killed in the horrible incident, among them is Sergio de Mello, the Secretary General’s Special Representative. On July 6, 2008 the acting head of UNDP’s office in Mogadishu was murdered by gunmen.19 Officials of IGOs who work in external missions need effective protection. More than regulations are necessary. An UN security staff or police units seconded from member states, for example, could assume that task. As long as international officials feel that they are not sufficiently protected, they have no other chance but to leave the inhospitable country. This is what happened in Iraq after the attack on the Canal Hotel.20 The Field Offices of the Asian Development Bank The Asian Development Bank (ADB) with headquarters in Manila has the mission to aid its developing member countries with reducing poverty and improving living standards. ADB has 19 resident missions in developing member countries in order to maintain close working relations.21 The South Pacific sub-regional office in Suva (Fiji Islands) and the office in Sydney serve as missions for several Pacific developing countries. Special offices are maintained in Timor-Leste and Manila. The representative offices in Europe, located in Frankfurt, in Japan (Tokyo), and in North America, located in Washington, are supposed to enhance support for ADB among donor countries. Of ADB’s total staff of 2,443 persons, 479 members, or roughly 20%, work in field offices.22 Apparently, ADB sticks to a policy of centralization while other IGOs such as the FAO pursue a policy of decentralization with the result the personnel working in external missions increases. The privileges and immunities of ADB personnel are laid down in the Agreement that established ADB.23 This approach entails that officials of ADB are accorded privileges and immunities only in member states. ADB, however, has a broad membership of 67 states of which 48 are from the Asian and Pacific region and 18 from outside that region.24 According to Article 55 of the Agreement, Bank

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officials enjoy functional immunity. They also enjoy immunity from immigration restrictions, alien registration requirements and national service obligations. The Delegations of the European Commission United Europe has an extended external network of representations, altogether 123 delegations, 118 in non-member states and five at centers of international organizations, which employ 4,900 officials.25 In a strict legal sense these missions represent the European Commission and not the Communities or the European Union (EU), which lacks legal personality.26 Therefore, they are called delegations of the European Commission. Meanwhile they act, however, under the roof of the European Union. This makes sense. The Commission that the delegations represent has become an important player in the EU’s external relations due to the progress of integration.27 This progress is continuing and has its own dynamics. Some ambiguity remains, and it is not surprising that institutions and citizens in host countries are often confused and mistake the delegation for a real EU embassy.28 Delegations have the following functions: — The promotion of trade is a core function of delegations since the EU has a common commercial policy granting the Communities exclusive powers. Delegations work on questions such as anti-dumping, the elimination of trade barriers, cooperation in customs matters, or the protection of intellectual property. This work includes agricultural, fisheries, environmental, transport, health and safety policies. Delegations explain and promote EU interests in these areas and report to the Commission. In many respects, their partners are not only governments, but also private business. Delegations try to facilitate business-to-business cooperation. — Negotiations for the conclusion of agreements between the Community and states or organizations are conducted by the Commission, however under the supervision of the Council of

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Ministers (Article 300 of the treaty Establishing the European Community, Consolidated Version 2006). The agreements are concluded either by the Community or by the Community and the member states. — In developing countries delegations have another additional function: They are involved in programming and managing EU aid. Development assistance activities of delegations have become more important since a greater part of decision making has been delegated to the level of the delegations.29 Delegations also take part in coordinating EU development assistance with bilateral aid of EU member states. — Delegations contribute to the Common Foreign and Security Policy (CFSP) as far as it is implemented in third countries and international conferences. Together with the diplomatic and consular missions of the member states they ensure that the common positions and joint actions are implemented (Article 20 of the Treaty on European Union, Consolidated Version 2006). By assuming CFSP related functions, the delegations become greatly involved in political work.30 The cooperation of EEC diplomatic missions in third countries and at international governmental organizations had modest beginnings, centering on an annual report on the economy of the host country and occasional meetings of the heads of mission.31 When the EEC became the European Community and later the European Union and enlarged its membership, the meetings of the ambassadors became regular, at least monthly events, and were accompanied by regular meetings of their staff. Originally the representatives of the Commission’s delegations did not participate in the meetings of diplomatic missions. This changed at the beginning of the 1980s. The previously mentioned Article 20 of the Treaty on European Union, introduced by the Treaty of Maastricht of 1992, finally provided for a full participation of the delegations. Rivalry, competition, and jealousy between bilateral embassies of member states and delegations have disappeared and cooperation has become the norm. Cooperation of EU missions in third countries

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and international organizations includes exchanges of information, consultations, and occasionally common reports or suggestions and joint demarches. The head of the Commission delegation participates in these demarches. A caveat has to be added: EU cooperation abroad can only go as far as the degree of understanding allows that has been achieved at home. There is no particular legal basis that gives the Commission the authority to set up delegations. The establishment of delegations can only be interpreted as emanating from the Commission’s right to organize itself.32 The Lisbon Treaty aims at changing this situation.33 There will be “Union delegations” and these delegations, placed under the authority of the High Representative for foreign affairs and security policy, represent the Union in third countries and at international organizations. They will act in close cooperation with the diplomatic and consular missions of member states. The role of Union delegations will depend on the scope of the common foreign policy made in Brussels. The communitarization of foreign policy has made progress, but a comprehensive and coherent European foreign policy is not in sight. The EU does not speak with one voice on core issues, such as the participation in the war in Iraq. Therefore, it is premature to talk about “a fundamental change in the nature of European diplomacy”.34 It is also an open question how the relationship between the Union delegations and embassies of member states will develop. Up to now, Union delegations are not supposed to replace national embassies. Since delegations have functions similar to those of embassies they are organized in a similar way. Delegations in industrialized countries focus on economic and trade questions; therefore, delegations in these countries have various economic sections.35 Delegations in developing countries have additionally a development cooperation section.36 Delegations have also political, public affairs, and administrative sections. The work of a delegation has a narrower scope than that of an embassy. Nevertheless, the functions have come closer to those of an embassy.37 The heads of the delegations use the title ambassador. In many instances, agreements were concluded with host countries that declare the stipulations

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of the Vienna Convention on Diplomatic Relations (CDR) applicable. If such an agreement is missing the title ambassador used by heads of delegations is a courtesy title. As for the privileges and immunities of delegation and their members, the situation is the same as that of other international governmental organizations and permanent missions. The CDR does not apply automatically. Therefore, special international instruments regarding these exemptions are necessary that grant privileges and immunities. For delegations in African, Caribbean, and Pacific (ACP) countries a legal basis exists in Protocol 2 on Privileges and Immunities to the Cotonou Agreement of June 23, 2000.38 The Cotonou Agreement is the framework for the cooperation between EU member states and the 79 ACP countries. According to the Protocol, delegations enjoy the “customary privileges, immunities, and facilities while carrying out their duties”. They are also exempted from any direct taxes. Delegations in countries that do not belong to the ACP countries enjoy only those privileges and immunities they are granted by bilateral agreements or municipal law of the host country.39 The Agreement between the Commission and Japan of March 11, 1974, for example, resorts to the CDR.40

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Chapter 19

International Treaties and Diplomacy

Observations and Definitions International treaties are concluded to make a behaviour binding on two or more subjects of international law (states or international governmental organizations). Thus, greater reliability in international relations is reached. Therefore, international treaties are important instruments of diplomacy. An agreement in writing with another subject of international law is reached as the result of negotiations. The negotiations of a treaty need preparations like bilateral or multilateral conferences. Procedural matters such as the location, time, agenda, and rules of procedure have to be agreed upon. When the subject is not controversial, when for example a bilateral extradition treaty is to be concluded, the negotiations start with a draft submitted by one side. If the topic is controversial, the diplomatic art of defining the area of overlapping interests is in demand. Both sides may start by presenting their maximum demands.1 It is then necessary to find out the other side’s minimum demands or resistance points. If the negotiators develop an atmosphere of understanding and trust, the exchange is facilitated. The confidentiality of bilateral negotiations contributes to a positive atmosphere. Negotiations of a treaty are neither straightforward nor always successful. The differences are often reflected in the changing drafts of the controversial provisions. Concessions and inducements may promote the success of the negotiations. It is even more difficult to achieve success in the negotiations of a 347

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multilateral treaty because all participants have a say and a vote. Comments by the media and pressure from public opinion increase the difficulties of negotiating. When finally the text of a treaty is adopted, it is often the “crowning end product” of diplomatic activities.2 The negotiations of bilateral and multilateral treaties also take a toll on foreign ministries. The political or economic sections have to adapt their instructions to the ever-changing situation of the negotiations and the treaty sections have to see to it that the legal aspects and requirements are observed.3 The state and its little brother, the international governmental organization, are needed since they have the powers to enforce a treaty. International treaty law is sometimes violated. The violations, however, do not render the treaty invalid just as a murder does not invalidate the legal prohibition of murder by a country’s penal code. All in all, international treaties are obeyed. Reciprocity has a positive impact. The European Union is an example that international contract law can effectively and dramatically change the cooperation between states. Treaties are concluded to create legal rights and obligations. This condition is achieved only when the agreement has binding force. If the arrangement is simply the expression of intentions or recommendations, it does not qualify as a treaty. International treaties can only be concluded between subjects of international law, that is, between states, between international governmental organizations or states and international governmental organizations. Thus, the following definition suggests itself: “International treaties are agreements, of a contractual character, between states, or organisations of states, creating legal rights and obligations between the parties”.4 In this definition the term treaty is used as a generic one. It is used in the same way in this book. International treaties come along under many names. They are called conventions, agreements, protocols, final acts, general acts, arrangements, accords, conventions, contracts, regulations, statutes, exchange of notes, and even sometimes declarations. The decisive question is always whether they are intended by the contracting parties to have binding force. Treaties can be concluded

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orally or in written form. The written form is definitely preferred in order to be sure what has been agreed upon. The Convention on the Law of Treaties of 1969 (Article 2, para. 1, lit. a) terms treaties only agreements “in written form”. A memorandum of understanding (MoU) can be either a treaty or a non-binding statement depending on the will of the parties as two examples demonstrate.5 On October 23, 1990, the governments of the United States and Germany signed a MoU concerning air navigation services in Berlin. After Germany was reunited, the quadripartite rights relating to Berlin, including the rights to control air traffic, ceased to exist. In the Memorandum of Understanding the two governments agreed that for a limited period of time the United States should continue these services on behalf of the German agency in charge of air navigation services and that Germany should reimburse the United States for the services. The memorandum was signed by the US ambassador to Germany and the secretary of state of the German Federal Foreign Office. Since the regulation of traffic control was an indispensable requirement of the safety of air traffic, the MoU could only be intended as binding. Consequently, it was registered with the UN Secretariat as a treaty.6 Other types of memoranda of understanding pursue different objectives.7 For example, on November 9, 2007 the governments of Norway and Tanzania signed a memorandum of understanding on Development Cooperation.8 The memorandum refers to the history of the development cooperation of the two countries, sets out its framework, objectives and areas, mentions the roles and possibilities of the partners and describes the volume of assistance in the following way: “Norway will aim at allocating a minimum of NOK 2 000 000 000 (Norwegian kroner two billion) for the five year period 2007–2011 (the equivalent of NOK 400 000 000 annually) for support to the government sector in Tanzania. This level of assistance is subject to the annual allocations made by the Storting (the Norwegian Parliament) and to satisfactory performance with regard to Tanzania’s commitments to reducing poverty, respect for human rights and promotion of good governance, including the fight

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against corruption”. The MoU can be terminated by either party with six months notice. It was signed by the Norwegian ambassador and the minister of finance for Tanzania. The partners established a framework for their development cooperation. In addition, Norway announced its intention to allocate a certain amount of development assistance to Tanzania (“will aim at”) but did not commit itself definitely. Therefore, this memorandum of understanding does not constitute a treaty. International treaties have an old history. A practice for the requirements of a valid treaty developed and became customary international law. The Vienna Convention on the Law of Treaties of 1969 partly codified the law that applies to treaties between states. The Vienna Convention of 1986 partly codified the law that applies to treaties between states and international organizations or between international organizations. The Convention of 1969 is in force since January 27, 1980. The Convention of 1986 has not yet entered into force. The crucial provision of international treaty law is the one, which provides that treaties must be kept. Article 26 of the Convention on the Law of Treaties and Article 26 of the Convention of 1986 use the phrase that every treaty is binding upon the parties and must be performed in good faith. As the preambles of both conventions mention, the rule pacta sunt servanda is universally recognized. It has been customary international law for a long time. Since the number of states has increased and the scope of international cooperation broadened, the numbers of bilateral and multilateral treaties has proliferated.9 A web of tens of thousands international treaties connect and bind the community of states, contributing to stabilize the international system. At the end of the 20th century the United States, for example, was a party to more than 6,000 bilateral and to nearly 600 multilateral treaties and agreements.10 Certain types of international treaties have to be submitted to a domestic procedure, called ratification. According to Article II, Section 2 of the Constitution of the United States, a formal treaty concluded by the administration needs a two-thirds majority in the

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Senate to be approved. Executive agreements, however, are not covered by this provision. They are either approved by both houses of Congress (congressional-executive agreements) or do not have any legislative approval (pure executive agreements) or have been concluded in accordance with existing legislation or a prior treaty (implementing agreements). In the German system treaties that regulate the political relations of the federation or relate to subjects of federal legislation require consent in the form of a federal law (Article 59, para. 2, lit. 1 of the German Basic Law). Administrative agreements do not require the participation of the legislative branch. It does happen that the legislature does not agree to a treaty. Non-ratification happens more often than one would think. A famous example is the failure of the administration of President Woodrow Wilson to secure the ratification of the Treaty of Versailles, which also contained Wilson’s invention, the Statute of the League of Nations. A recent example of non-ratification is the one by the United States regarding the Kyoto Protocol of 1997. This Protocol to the United Nations Framework Convention on Climate Change aimed at lowering greenhouse gas emissions. The United States has signed but not ratified the treaty. The absence of the United States among the parties to the Protocol is noticeable, since the Protocol has been ratified by 182 states.11 A government faces difficulties for the ratification of a treaty more often in a presidential than in a parliamentary system. In a parliamentary system the government is in command of a majority of the seats, while in a presidential system the president’s party does not necessarily enjoy a majority in the legislature. If a treaty does not find the consent of the legislature, it cannot enter into force in that country. This situation is embarrassing for the government and may have a negative impact on its international standing. The Structure of Treaties A closer look at a bilateral treaty sheds light on the form and content of a treaty. The Extradition Treaty between the United States and India of June 25, 1997 is used as an example.12

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The treaty starts, as so many international treaties do, with a preamble. The preamble describes the purpose and the reasons of the treaty. The United States and India wish to cooperate more effectively in the suppression of crime and conclude a new treaty that substitutes an old American-British one of 1931 that was so far applied. Sometimes, particularly in multilateral treaties, definitions follow. For example, Article 1 of the Convention on Diplomatic Relations contains definitions of a number of expressions, such as “head of mission”, “diplomatic agent”, or “premises of the mission”. Then follows the substantive part of the treaty. Extradition means the surrender of a person, who is suspected or convicted of a crime, by one state to another. Since the independence of a state results in its territorial integrity, no state is obliged to extradite a person unless bound by a treaty.13 Therefore, extradition is a classical subject of bilateral treaties.14 Article 2 of the US-India Treaty defines an extraditable offense as one that is punishable under the law in both countries by an imprisonment of more than one year. The treaty is one of the dual criminality type. Other treaties contain lists of crimes that result in extradition. Important is Article 3 stipulating that extradition shall not be refused on the ground that the person sought is a national of the requested state. There are quite a number of countries such as France, Germany, Japan and Russia that do not extradite their own nationals. The treaty excepts a number of offenses under certain circumstances from extradition, such as political and military offenses, cases of prior prosecution and offenses that are punishable by death under the laws in the requesting state. To except political offenders from extradition is a reversal from the original concept of extradition that focused on political offenders. In the second half of the 19th century political offenses were removed from extradition requests. Article 4, para. 2 makes it clear that certain terrorist crimes are not considered to be political offenses. According to Article 9 all requests for extradition must be submitted through the diplomatic channel. Within the embassy it is the task of the consular section

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to take care of extradition cases. The requested state answers also through the diplomatic channel. Article 17 stipulates that the surrendered person can only be tried for the offenses for which the extradition was granted (principle of speciality). The final clauses of the treaty deal with formal aspects. Article 23 stipulates that the treaty is subject to ratification. In this context ratification is used as a term of international law, not as a term of constitutional law: Ratification means an act whereby a state communicates to be bound by the treaty.15 Article 23 further prescribes that the treaty enters into force upon the exchange of the instruments of ratification. At the same time, the old US-British treaty of 1931 ceases to have an effect between the United States and India. According to Article 24 each party can terminate the treaty at any time with a notice period of six months. Date and signature close the treaty. In its last sentence the treaty states that it is done in the English and Hindi languages and that both texts are equally authentic. This clause means that the terms of the treaty are presumed to have the same meaning in each text (Article 33, para. 3, of the Convention on the Law of Treaties of 1969). Multilateral treaties often declare various languages as equally authentic. For example, Article 128 of the Rome Statute of the International Criminal Court of July 17, 1998 declared Arabic, Chinese, English, French, Russian and Spanish as equally authentic.16 There have occasionally been difficulties when the meaning of terms in two authentic languages differed. Article 33, para. 4, of the Convention on the Law of Treaties suggests adopting “the meaning which best reconciles the texts, having regard to the object and purpose of the treaty”. In view of the highly advanced art of translation, difficulties arising from the different meaning of terms used in multilingual treaties are becoming less important. For the United States government the Acting Secretary of State and for India the Minister of State for External affairs signed the treaty. An exchange of letters under the same date and signed by the same officials supplemented the treaty. With this exchange agreement was reached that an extradited person should generally be subjected to the ordinary criminal laws only.

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If the ratification of a treaty is not envisaged, the entry into force has to be fixed otherwise. Executive agreements often stipulate that the agreement enters into force on the date of its signature. For example the Agreement between Norway and Tanzania regarding a development cooperation project, concluded on November 29, 2007, stipulates in Article V that the Agreement enters into force on the date of its signature. That means that from that date on both states are bound by the treaty.17 Formalities Treaty making happens in stages.18 In order to negotiate and sign a treaty a representative needs full powers. The requirement to produce full powers is aimed at excluding all types of insecurity about the person representing a state or an international organization. The full powers, signed by the head of state or government or by the foreign minister, names the representative, with title, and indicates which particular treaty he is entitled to conclude.19 Some officials are ex officio authorized: Heads of state or government, ministers of foreign affairs, heads of diplomatic missions, and representatives accredited to an international organization or conference. Article 24 of the US–India Extradition Treaty mentions that the undersigned were “duly authorized by their respective governments”. When agreement about the text of a treaty is reached the treaty is adopted. For a bilateral treaty the final agreement of the parties is sufficient. A multilateral treaty is adopted by a vote or by consensus. The adoption is followed by the authentication of the text. Typically a treaty is signed. The US–India Extradition Treaty was signed by the Acting Secretary of State on the American side and by the Minister of State for External Affairs on the Indian side. Since both officials were authorized ex officio to sign international treaties they did not need full powers in writing. The Agreement between Norway and Tanzania of November 27, 2007, which was previously mentioned, was signed by the Norwegian ambassador. He also was authorized to do so without having to produce full

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powers in writing. A treaty can also be authenticated by a signature ad referendum or initialling (Article 10, lit. b, of the Convention on the Law of Treaties). In both cases additional action is necessary. If the treaty was signed ad referendum the parties have to communicate that they consider the signature as final. In case the treaty was only initialled, the missing signatures have to be added under the text of the treaty. Ambassadors are frequently asked to sign treaties. This is practical because the ambassador has full powers ex officio. The treaties signed by ambassadors often have the form of an exchange of notes.20 The ambassador addresses a first person letter to the foreign minister of the host country in which he outlines the details of the agreement. In the minister’s answer, addressed to the ambassador, he repeats the text of the ambassador’s letter and declares his agreement with the proposal.21 International treaties become typically effective on ratification. Before a state can proclaim its formal acceptance of the treaty, it has to subject it to the procedure that its constitution prescribes. As was previously mentioned, the internal procedure is also called ratification. The US–India Extradition Treaty was transmitted to the Senate on September 27, 1997. The Senate consented on October 21, 1998. The president ratified it on January 20, 1999; India ratified it on April 16, 1999. The instruments of ratification were exchanged on July 21, 1999. The text of these instruments starts with the heading “Instrument of Ratification” and then names the treaty in question. In its operative part the head of state declares for example that his government’s country ratifies the treaty or that he affirms the treaty.22 The full text of the treaty is annexed to the instrument of ratification. Exchange means that the representatives of both states hand to each other the instruments signed by their chief executives. American and German procedures demand that a protocol is signed stating that the exchange has been effectuated. According to Article 23, para. 2, the US–India Treaty entered into force upon the exchange of the instruments of ratification, that is to say on July 21, 1999. From that moment on, the treaty became binding after international law. If the internal

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procedure fails, because the legislature does not agree, the ratification in the sense of declaring the formal acceptance of the treaty cannot take place. Multilateral treaties allow the accession or adherence by states that originally did not sign the treaty. For example Article 16, para. 2, of the Convention on the Prohibition of the Use, Stockpiling, Production, and Transfer of Anti-Personnel Mines and on their Destruction of September 18, 1997 stipulates that the Convention is open for accession by any state that has not signed the Convention.23 A state that accedes to the Convention must deposit an instrument of accession. The idea that international treaties should be made public was promoted by President Woodrow Wilson. The first of his “Fourteen Points” listed in his speech before Congress on January 8, 1918 demanded the following: “Open covenants of peace, openly arrived at, after which there shall be no private international understandings of any kind but diplomacy shall proceed always frankly and in the public view”.24 The idea to ensure publicity of international treaties found its way into the Covenant of the League of Nations and subsequently into the Charter of the United Nations. Article 102 makes the registration with the UN secretariat of every international treaty compulsory. The same obligation is contained in Article 80, para. 1, of the Convention on the Law of Treaties for the parties to the convention. If a treaty is not registered with the secretariat because of its confidential character, it remains valid. It can, however, not be invoked before any organ of the UN (Article 102, para. 2, of the UN Charter). This means also that an unregistered treaty of a UN member cannot be invoked before the International Court of Justice. The United Nations publishes the registered treaties in the United Nations Treaty Series (UNTS). Modalities If a party does not agree with a provision of a bilateral treaty, this provision will not be included in the treaty. The result may be that

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the treaty is not concluded at all. Therefore, unilateral reservations are not a problem of bilateral treaties. Reservations are, however, a phenomenon of multilateral treaties.25 The constellation is as follows: Some or most states that took part in the negotiations of a multilateral treaty are in agreement with all provisions of the treaty. One state or several states, however, are in agreement with most of the provisions of this treaty, but want to avoid to be subjected to a certain provision or certain provisions, and therefore, declare a reservation. The Convention on the Law of Treaties defines a reservation as a unilateral statement by a state with the aim “to exclude or modify the legal effect of certain provisions of the treaty in their application to that state”. Put another way, reservations are amendments inserted into a treaty by one party as a condition for its membership to the treaty. As amendments, reservations must be accepted by the other parties if the reservation is supposed to come into force. Different approaches are possible. A first alternative suggests that the reservation needs the consent of all parties to the treaty because it changes the treaty. According to a second alternative the consent of all parties to the reservation is not needed. A reservation is in force only between the reserving state and those states that accept it. The Convention on the Law of Treaties follows a middle course. According to Article 19 a reservation cannot be made where it is prohibited by the treaty or where the treaty provides that only specified reservations can be made, or where the reservation is incompatible with the object and purpose of the treaty. For example, the Mine Ban Treaty prohibits all anti-personnel mines. Since an exception would counteract the purpose of the treaty Article 19 of the Mine Ban Treaty prohibits reservations.26 Since human rights treaties endeavor to create a global standard it is incompatible with the purpose of the treaty that a state tries to lower the standard by making a reservation. As the Human Rights Committee of the United Nations outlined in November 1994 a state may not reserve the right to engage in slavery, to torture, to subject persons to cruel, inhuman or degrading treatment or punishment or similar human rights violations.27

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In other instances a reservation is possible and the rule applies that the reservation can be made only with the acceptance by other states involved in the process. However, Article 20, para. 2, of the Convention on the Law of Treaties narrows the scope for an acceptance of a reservation by all other parties in the following way: “When it appears from the limited number of the negotiating states and the object and purpose of the treaty that the application of the treaty in its entirety between all the parties is an essential condition of the consent of each one to be bound by the treaty, a reservation requires acceptance by all the parties”. For cases when the acceptance by all other members is not required, Article 20, para. 4, of the Convention on the Law of Treaties has established the following general rules: — When a state has declared to be bound by the treaty under a reservation, the statement is effective as soon as at least one other contracting state has accepted the reservation. — The acceptance of a reservation by a third state makes the reserving state a party to the treaty in relation to the accepting state, provided the treaty is in force for those states. — An objection by another contracting state to a reservation does not preclude the entry into force of the treaty between the objecting and reserving state unless a contrary intention is definitely expressed by the objecting state. Article 21 of the Convention on the Law of treaties outlines the legal effects of reservations and objections to reservations. A reservation established with regard to another party modifies for the reserving state in its relation with the other party the provisions of the treaty to which the reservation relates to the extend of the reservation. The other party is similarly affected in its relation with the reserving state. However, the reservation does not modify the provisions of the treaty for the other parties to the treaty as between themselves. When a state objects to a reservation, but not to the entry into force of the treaty between itself and the reserving state, then the provisions to which the reservation relates do not

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apply as between the two states to the extend of the reservation. It is important to note that reservations are presumed to have been accepted by states that have raised no objections to them at the end of a period of twelve month after notification of the reservation (Article 20, para. 5, of the Convention on the Law of Treaties). The practice of declaring reservations to a multilateral treaty is discussed here, because it has consequences for diplomacy. Since reservations have become widely accepted, states can be included that are not in agreement with certain provisions. The negotiations of a multilateral treaty typically try to accommodate as many views as possible. The negotiators have also to consider whether they have domestic support for their positions. When it is impossible to incorporate all suggestions into the text of the treaty, there remains the possibility for those governments that have objections against certain clauses to become a party to the treaty with a reservation. The idea is to ensure a broad-based participation in the treaty. If a reservation is not allowed some countries might prefer not to participate at all. However, allowing reservations means sacrificing the integrity of the text of the treaty. For example, as of April 18, 2008, 44 of the 161 states parties to the International Covenant on Civil and Political Rights had made numerous reservations.28 The number of objections is much greater. Thus, it is difficult to ascertain which provisions are in force between which countries.29 Understandings that are sometimes declared on signing or ratifying an international treaty do not have the far-reaching effect of a reservation. Understandings serve as a means to lay down one’s own interpretation of provisions of the treaty or to preserve one’s own legal or political positions. For example, the government of the Federal Republic of Germany made extensive use of this practice when it started concluding agreements with the government of the German Democratic Republic in the beginning of the 1970s. It wanted to avoid the impression that by dealing with the GDR it had given up its fight for unification. Therefore a “letter on German unity “was attached to the Treaty on the Basis of Relations concluded with German Democratic Republic on December 21, 1972. In this letter the Federal Republic of Germany expressed its

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understanding that the treaty “does not conflict with the political aim of the Federal Republic of Germany to work for a state of peace in Europe in which the German nation will regain its unity through free self-determination”.30 The government of the United States makes frequently use of understandings when it ratifies a treaty. When the United States, for example, ratified the 1948 Convention on the Prevention and Punishment of the Crime of Genocide on November 25, 1988, the administration declared among others its understanding “that acts in the course of armed conflict committed without the specific intent required by article II are not sufficient to constitute genocide as defined by this Convention”.31 Article II of the Convention bans acts committed “with the intent to destroy, in whole or in part, a national, ethnical, racial or religious groups”. The US government tried to protect its military forces from being accused of genocide under the convention. To use understandings has become a common practice in international relations. Invalidity and Termination of Treaties A state concludes a treaty because it wishes that the other parties follow the provisions of the treaty exactly as itself does. Each party hopes to create trust within the international community. Therefore, the validity of an international treaty is a precious commodity. Article 42 of the Convention on the Law of Treaties acknowledges this result by restricting the possibilities to get away from a treaty to the cases listed in the Convention. Treaties can be invalid, for example because of error, fraud, or corruption of a representative of a state. From the point of view of diplomacy, the most interesting case that invalidates a treaty is coercion of a state by the threat or use of force. The threat or use of force cannot create legal obligations because the action remains a unilateral declaration that cannot be binding on the other. Nevertheless, peace treaties that were concluded under coercion had been considered valid. The renunciation of the recourse to war by the Kellogg– Briand Pact in 1928 and the ban of the threat or the use of force against the territorial integrity or political independence of any

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state by Article 2 , para. 4, of the Charter of the United Nations led to a new thinking.32 Consequently, Article 52 of the Convention on the Law of Treaties provides the following: “A Treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations”. So, nowadays, the threat or use of force invalidates an international treaty. International treaties continue to be concluded between states that differ in power. A more powerful state can try to influence a weaker state to adopt a certain policy line and finally to agree to a treaty. The stronger state has many possibilities in trying to impose its will. It can, for example, indicate disadvantages for the state that does not comply. These threats below the level of threatening with the use of force do not invalidate the treaty. Diplomacy has to see to it that this level is not passed. Among the various reasons for the termination of a treaty the fundamental change of circumstances is of interest for diplomacy. The formula of Roman law, the clausula rebus sic stantibus says that validity is only given as long as the circumstances remain the same. The application of the clause has been controversial. It is now a part of the Convention on the Law of Treaties and therefore binding to all those who have signed this convention. Article 62 allows invoking a fundamental change of circumstances as a reason for terminating a treaty, if the existence of those circumstances constituted an essential basis for the treaty, and if the change radically transforms the obligations under the treaty. Put another way, it must be really a fundamental change. Article 62, para. 2, excludes two cases from being invalidated by the clausula rebus sic stantibus, if the treaty establishes a boundary or if the fundamental change is the result of a breach by the party invoking it. These principles are difficult to apply. In 1992 Hungary invoked the clausula rebus sic stantibus in order to terminate the Hungarian– Czechoslovak treaty of 1977 that had provided for the construction of a large dam on the Danube River. In the case before the International Court of Justice Hungary argued that the “socialist integration” mentioned in the treaty had disappeared,

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the “single and indivisible operational system” was to be replaced by a unilateral scheme, the planned joint investment had been overturned because both countries had become market economies, Czechoslovakia had turned the framework treaty into an “immutable norm”, and the treaty had transformed from one of environmental protection into “a prescription for disaster”.33 The ICJ held that the political and economic conditions did not constitute an essential basis of the treaty and that the changed circumstances did not transform the extent of the obligations radically. The Court insisted that “the stability of treaty relations requires that the plea of fundamental change of circumstances be applied only in exceptional cases”.34 Diplomats should be careful to ague with the clausula rebus sic stantibus. Restraint is not only necessary because of the legal restrictions but also with a view to the functions of treaties. International treaties are meant to create trust and reliability. Playing with their validity endangers international cooperation.

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Chapter 20

Diplomatic Methods

The Languages of Diplomacy Diplomats, like everybody else, prefer to use their own language. This is also to their counterparts’ advantage because they can be sure that the diplomats mean what they are saying. There are ample opportunities for diplomats to use their own languages because groups of countries share the same national language. A Peruvian diplomat in Venezuela or in any other Spanish-speaking country, for example, can communicate in his own language. The same is true of a French diplomat in Belgium or in any other Frenchspeaking country or of an Australian diplomat in New Zealand or any other English-speaking country. The situation for the Peruvian diplomat in Belgium, the French diplomat in New Zealand or the Australian diplomat in Venezuela is different. In these and all other cases when the diplomat’s native language is not spoken in the host country, one has to look for a way to make mutual communication possible. No problems arise when the diplomat speaks the host country’s language. Indeed, diplomats have always been known for their linguistic skills. Foreign ministries continue to insist on language skills of their diplomats. Applicants for the executive service of the German foreign office must speak English and French.1 Improving the language skills is an important part of the training of the new German foreign service officers. Language skills are not required to join the British foreign service but considered an advantage.2 The Foreign and 363

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Commonwealth Office is particularly interested in candidates who speak difficult languages such as Cantonese, Mandarin, Japanese, Korean, Arabic, or Farsi. As was previously mentioned, applicants for the US foreign service are also not required to demonstrate skills in a foreign language. However, proficiency in one or more languages is an advantage.3 Working knowledge in a super critical needs language (Arabic [modern standard], Chinese, Dari, Farsi, Hindi, and Urdu) or a critical needs language (Arabic [other forms than modern standard], Azerbaijani, Bengali, Cantonese, Korean, Kyrgyz, Nepali, Pashto, Punjabi, Kurdish, Russian, Tajik, Turkish, Turkmen, and Uzbek) enhances an applicant’s competitiveness. Many foreign services encourage their members to learn foreign languages. The State Department offers language training at post or in Washington. The German Foreign Office rewards additional language skills by extra allowances, the amount depending on the difficulty of the language.4 Sometimes, the efforts of diplomats to learn a foreign language collide with the necessities of coping with the daily workload. It has often been stressed that the learning of a foreign language gives deeper insight into the culture, social patterns and history of a country.5 This is certainly true. However, a diplomat acquires skills in a foreign language first of all as means of communication. In many countries he will be excluded from important contacts if he does not speak the host country’s language. The success of a diplomat in using a foreign language depends on the level of proficiency he has reached. The highest level, called native or bilingual proficiency in the State Department, is typically reached only when the language training has started many years before the diplomat entered the foreign service. 6 There are occasions when the choice of the language poses a problem for a diplomat. Diplomats of a number of countries are required to promote the knowledge and spread of their national language. An ambassador of such a country may find it awkward to address his guests on the occasion of his country’s national day in any language other than his own. An ambassador who has been invited to deliver a commencement speech at a university of the

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host country may hesitate to use any other language but his own when a number of students among the audience are studying the language of the ambassador’s country. On the other hand, the use of the ambassador’s native language may be inappropriate when only a small minority among the audience understands this language. Typically, a diplomat prefers to deliver his message in a way so that it is understood. When the diplomat’s language is not understood in the host country and if he does not speak the language of that country, he and his counterparts can choose a third language. Latin served in the Middle Ages and far into modern times as international language for diplomacy.7 Latin was also used as language for international treaties. The Treaties of Münster and Osnabrück of 1648, for example, were in Latin. Latin was a real lingua franca: It was not a language of any nation, but a common language of the European elite. The dominance of Latin was not unchallenged. Governments tried to foster the use of their national languages for diplomacy. In the middle of the 18th century French became dominant. The language of the Congress of Vienna of 1814/1815, as well as of the Final Act, was French. That the struggle continued as to which language to use in international relations can be taken from Article 120 of the Final Act stating that the use of the French language was not to be considered a precedent.8 The British government, later supported by the US government, fought for the use of English in diplomacy. Another important conference, the Paris Conference of 1919–1920, ended the struggle by granting English the same position that French enjoyed. English was a conference language, and was besides French the other language used for the Versailles Treaty.9 Since the end of the Second World War English has become the foremost international language. This development was powered by the educational systems of many countries that made English the first foreign language to be learned at school. Though there is no generally accepted diplomatic language, English is the most frequently used working language of diplomacy. Here is anecdotal evidence for this situation.10 In 2000 the UN Secretariat asked member states to name their preference of English, French

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or Spanish as the language in which correspondence to their permanent missions in New York should be addressed. More than 120 countries chose English, about 40 French and about 20 Spanish. In their written correspondence with other states, governments prefer to use their own language. Britain has followed this practice for more than 150 years.11 All communications that the US government addresses to a foreign government are in English.12 Since English is the internationally best-known language it may work to insist on the use of English. If the national language of a country is nearly unknown in other countries, its use as a means of correspondence with other governments may result in misunderstandings or delays. Therefore, a translation into the language of the host country, a courtesy translation, can or must be added, depending on the local custom. In some countries it is accepted that for official correspondence a third language, for example English, is used. Local usage and practicability, not national prestige, determine how to proceed. For the conclusion of international treaties the choice of the language is important. Bilateral treaties are concluded in the languages of the two partners, British-German treaties, for example, in English and German. Multilateral treaties are concluded in various languages. UN sponsored treaties, such as the CDR and the CCR, were concluded in Chinese, English, French, Russian and Spanish.13 Important conventions, such as the Rome Statute of the International Criminal Court, add Arabic as a sixth authentic language.14 Translation and Interpretation International organizations have to decide in which language or languages they want to operate. Therefore, official languages are established. The idea is that all documents and discussions of the IGO have to be translated or interpreted in all of these languages. Written texts are translated, verbal communications are interpreted. Translation and interpretation are costly when an organization uses many official languages. The European Union of

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27 member states has 23 official languages (Bulgarian, Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Irish, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish, and Swedish).15 The EU tries to consider linguistic diversity an asset. Since it is not feasible for the Commission to perform its daily work in 23 languages, one has to resort to working languages. French and English are the Commission’s working languages. French was predominant until the 1990s; meanwhile English is the most important working language.16 The United Nations originally tried to use a different system. English and French were made working languages, Chinese, French, English, Russian, and Spanish official languages. Statements in one working language had to be interpreted into the other working language, statements in the official languages had to be interpreted into the two working languages.17 Thus, the working languages formally achieved a higher status. This system could not be maintained. Meanwhile, Arabic, Chinese, English, French, Russian, and Spanish are the official languages of the United Nations.18 The UN Secretariat uses English and French as working languages. Since 1975 basic documents have to be translated into German at the expense of the German speaking countries.19 Not only international governmental organizations but also foreign ministries and diplomatic missions have to take care of translation and interpretation. Politicians engaged in international relations often need the assistance of an interpreter. Since many countries with languages that are little known outside their borders have joined the community of nations, foreign services must be prepared to provide for the translation and interpretation of little known languages. The efforts to deal with this situation differ. Some foreign ministries outsource translation, others, such as the German Foreign Office and the French Ministry for Foreign and European Affairs have their own language services divisions. There are many documents to be translated: speeches, statements, press releases, international agreements, diplomatic demarches, visitors’ programs, negotiation minutes, and all kinds of diplomatic correspondence. Often the documents reach the

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translation service late, which, therefore, has to fight permanently with a narrow time schedule. A small signboard on one of the doors of the language services division of the German Foreign Office used to express that situation by saying: “The impossible we do at once, miracles take somewhat longer”. The language services units of foreign ministries do not have the large staff enjoyed by some international organizations. The Translation Service of the European Commission employs approximately 1,750 linguists and 600 support staff.20 The Directorate-General for Interpretation employs 500 staff interpreters and 2,700 accredited freelance interpreters who work mainly for the Commission and the Council of Ministers.21 The Directorate-General for Interpretation provides interpreters for approximately 11,000 meetings every year. Interpretation, that is oral translation, demands special skills. The interpreter has to focus on rendering the speaker’s explanations as precisely and objectively as possible into another language. It is not his business to take part in the discussion by inserting own remarks — a temptation that less well-trained interpreters sometimes cannot resist. A text can only be precisely interpreted if the interpreter has a complete understanding of the issue. If an interpreter is supposed to work for a politician, for example for his foreign minister, during a meeting with another foreign minister, he must receive the papers that were prepared for his minister in time so that he can get prepared. Consecutive interpretation is the norm. It is a great advantage for the speaker if he can think about his next sentences while the interpreter is doing his job. In case two statesmen meet, both may have their own interpreters. They also can rely on one interpreter only. This happened often between European powers in the period between the two World Wars and occasionally also after the Second World War. For example, the first discussion between French President Charles de Gaulle and German Chancellor Konrad Adenauer in Colombey-les-deux-Églises in September 1958 was interpreted only by a French official. President Nixon and Henry Kissinger often relied on Soviet interpreters during their meetings with Soviet leaders.22 A particularly challenging form of interpretation is simultaneous interpretation because there

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is no time for corrections. Simultaneous interpretation into a language that follows a totally different grammar, for example from English into Japanese, cannot be completely perfect, but remains necessarily an approximation. Interpreters follow different styles of simultaneous interpretation. They follow the speaker closely, or summarize the speech at intervals, or reformulate what the speaker has said.23 In any case, they have to rely on key words. The tremendous work of simultaneous translation can be followed, for example, in the General Assembly hall or the Security Council chamber at UN Headquarters in New York. The quality of interpreters differs, as does the quality of diplomats. Mistakes are made occasionally by interpreters.24 All in all, translators and interpreters make a crucial contribution so that diplomacy can fulfill its function of making communication between nations and their representatives possible. Diplomatic Language Whatever language a diplomat uses, he must decide on words and style. It is commonly assumed that diplomats speak in a tactful, indirect, moderate way trying to avoid hurting the feelings of their counterparts.25 It is further understood that diplomats prefer to speak in a vague, often evasive way. Indeed, they often try to keep their options open. Diplomats are also considered to use “guarded under-statement, which enables diplomatists and ministers to say sharp things to each other without becoming provocative or impolite”.26 Diplomats, however, face different situations. The issues that they discuss and the audiences that they address differ. Diplomats adjust their way of speaking accordingly. When a discussion covers common ground the diplomat’s task is easy. For example, when a diplomat informs his counterpart in the foreign ministry that his government accepts a proposal, will vote as was requested, increases its aid, joins hands to fight terrorism, or agrees to a state visit, he has no difficulty in finding the right words. The discussion takes place in a relaxed atmosphere and the partners use a matter-of-fact language.

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Often diplomats are discussing sensitive issues. For example, a diplomat asks for restraint in a border conflict, criticizes the host country’s human rights record, asks for the release of a political prisoner, draws the attention to the involvement of an agency of the host country in drug trafficking or announces the cancellation of an aid program because funds were embezzled. Diplomats have been advised to use smooth language. Abraham de Wicquefort, writing in 1680/81, had this to say: “The Embassador is indispensably oblig’d to execute his Master’s Orders, but he may do it in such a manner as may soften the Harshness of his Action, and justify his Conduct, altho’ his Master’s Intention be not approv’d of. He ought to keep within the Bounds of Respect, notwithstanding his Prince Commands him to express himself in words which cannot be agreeable”.27 If the message is too much watered down it may not be fully understood. It is, however, the diplomat’s task to transmit the message faithfully. A way must be found to express concerns clearly without hurting the feelings of the partner. When only concern is expressed, not combined with a request, it is possible “to keep within the Bounds of Respect”. In an after dinner speech during a state visit to Pakistan on October 8, 1997 Queen Elizabeth II addressed the Kashmir question, a sensitive issue in the host country. By quoting the Quaid Mohammed Ali Jinnah, the founder of Pakistan, she invited the hosts to enter into a dialogue with India. Nobody could feel hurt when the Queen said: “We all know, from experience, that animosity retards development; that development requires trust; that lack of trust closes off opportunities. There are few areas of the world where development is so acutely needed as in this sub-continent. There are few things that would do more to unleash the regions than the lifting of the barriers between these two large nations. It was the Quaid again who said that it was of vital importance to Pakistan and India as independent sovereign states to collaborate in a friendly way. It brings the friends of both countries only pleasure to see the commitment both have made this year to solve contentious issues through talks. Reconciliation will take time, but the effort must be made. I am convinced it will be worthwhile for the more than 1 billion inhabitants of the countries”.28

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The situation is different when the concern is so strong that it is combined with a request. Here is an example: In the summer of 1987, South Korea was in turmoil. The people demonstrated for a democratic government and against the military dictatorship of President Chun Doo Hwan.29 The South Korean leadership played with the idea of imposing martial law and using troops. The US government was concerned about this development since South Korea was a close ally, which the United States protected against military threats from North Korea. President Ronald Reagan decided to argue for a political solution of the crisis. On June 17, 1987 he addressed a letter to President Chun Doo Hwan, saying among other things, “I believe that political stability based on sound democratic institutions is critical to insuring the long-term security of your country, and you have often expressed the same sentiments.... Therefore, I applaud your commitment to a peaceful transfer of Presidential power next year as a crucial — and, as you say, unprecedented and historic — step in strengthening that institution of democratic government.... the release of political prisoners, and further steps along the lines you have recently taken toward effectively dealing with police officials who abuse their authority, would send to the world a dramatic signal of your intend to break free of what you correctly term “the old politics”. A free press and balanced coverage by television and radio are essential to realizing your commitment to fair elections. Dialogue, compromise, and negotiations are effective ways to solve problems and maintain national unity. Let me assure you that we will support all significant steps in these directions”.30 The letter, written in a friendly, though somewhat didactic tone, did not mention the main US concern that the military might be used. To make the position of the United States clear, US ambassador James Lilly added a warning against using the military in the crisis when he delivered the letter to the South Korean President. Thus, the soft approach through the president’s letter was supplemented by an unambiguous statement from the ambassador. In some cases, diplomats have precise instructions as to what language they should use or avoid. For example, as long as the

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government of the Federal Republic of Germany insisted that it was the only freely elected German government and, therefore, alone in a position to represent Germany, diplomats from the Federal Republic of Germany did not use East Germany’s official name “German Democratic Republic” or the acronym “GDR”. Old diplomatic expressions such as “concern”, “grave concern”, “reconsidering one’s position” or “considering its own interests” no longer have a generally accepted and unambiguous meaning.31 Governments, however, try to use certain terms to promote their interests. For example, the Soviet Union used the term “peaceful coexistence” in order to disguise its less peaceful intentions. When an ambassador pays a visit to the foreign ministry, another ministry, to a member of parliament, to a leader of a political party, or to other officials, he will often find that his counterpart is accompanied by a member of his staff who will serve as a notetaker. An ambassador may also bring a member of his embassy staff along to serve as his notetaker. Often an ambassador meets his counterpart for a one-to-one talk. It can happen by chance or because the counterpart prefers to see the ambassador alone. The memoirs of ambassadors recount instances of one-to-one meetings. Former British ambassador Trevelyan reports that the Egyptian President Nasser always received him alone since he did not trust his own staff.32 Soviet Ambassador Dobrynin had an endless chain of private meetings with high American government officials.33 A talk “under four eyes” as it is called in German, offers the chance for a frank and plain exchange of views since no aspect of face saving is involved. Direct language requires that the two partners trust each other. The members of the staff of statesmen and of ambassadors dislike their masters talking in private because they are afraid that no or no precise records will be kept. Sometimes, however, the private talks are those that set developments in motion. A diplomat addressing the public will use a different language. He will try to appear modest and display common sense, restraint and, if possible, humor. He will stress common bonds or interests. Diplomats have delivered countless speeches that follow this pattern.

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Here is a randomly chosen example. When Philip Lader, US Ambassador to the United Kingdom, addressed a British audience on November 18, 1997 he talked about the “special relationship” between both countries.34 He mentioned the quarrels both countries have had in the past, but stressed “the democratic values, common objectives, tangible benefits, and mutual respect which characterize this friendship”. He then listed the political issues that are of common concern for both countries and finished by saying: “Henry Kissinger is fond of citing a Spanish proverb: ‘Traveler, there are no roads. Roads are made by walking’. Over the past 50 years, there has been no certain road for the ‘special relationship’. There is none for the century to come. Some of us travelers are new. As recent days sadly demonstrate, the journey will always be perilous. But we can walk with confidence, knowing our two nations are strong and we are in the company of trusted friends”. Prudence and restraint are needed when a diplomat talks to the media. Most of these talks follow the rules of common sense and journalists respect a diplomat’s wish not to be quoted. If the diplomat cannot be sure that his request to speak off the record will be honored he must be particularly cautious. Indiscretions happen. At a dinner party in London in December 2001 the French Ambassador, Daniel Bernard, had mentioned Israel as the cause of current troubles.35 The hostess of that dinner quoted the ambassador — without identifying him — in a column in The Daily Telegraph on December 21, 2001 and warned against anti-Semitic remarks. The ambassador’s name was soon made public and the affair was embarrassing for him. When an embassy or a foreign ministry addresses a wider public trying to explain its attitude towards a specific political issue, it will use a less ambitious and sophisticated language. The key to convincing the public is a readily comprehensible text. A dispassionate approach will also be the best solution, even in a case where the official statement is in response to emotional questions or accusations. Diplomacy by insult does not work. Here is a famous example of “negotiation by insult”.36 In 968, Bishop Liudprand de Cremona was sent by the Holy Roman

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Emperor Otto I to Constantinople to arrange a marriage between his son and a daughter of the Byzantine Emperor Romanus. As Liudprand recounts himself he accused his host, Emperor Nicephorus, and his predecessors of having left Rome in the hands of prostitutes.37 He stated that Nicephorus’ predecessors were called emperors of the Romans in name only and said at another occasion that he considered the words “You Romans” as insulting.38 His mission failed. Liudprand lacked synesis, prudence, which was considered by the Byzantines to be a virtue of diplomats.39 There are more recent examples of undiplomatic language. After the tsunami disaster that hit many Asian and African states around the Indian Ocean in December 2004 the UN undersecretary general for humanitarian affairs, Jan Egeland, appealed to member states to provide relief funds. He said among other things: “It is beyond me why are we so stingy, really. Christmas time should remind many Western countries at least of how rich we have become”.40 This official was not “very misguided and ill informed”, as President George W. Bush said on December 29, 2004.41 At that point in time, the United States had only made an “initial measly aid offer of 15 million”.42 Egeland had only chosen the wrong language. He could have chosen a positive approach. He could have, for example, commended humanitarian assistance by Western countries in the past and expressed his conviction that these countries would certainly be willing to help to cope with a tragedy of hitherto unknown proportions. Undiplomatic language by a diplomat can have serious consequences. For example, the Canadian Ambassador to Mexico, Marc Perron, suffered more than embarrassment. In an interview he gave the Mexican Weekly Milenio in the fall of 1997 he complained about corruption in the host country saying: “I am an expert on the Middle East and when I came here I thought I already knew everything about corruption. But I was mistaken”.43 The ambassador lost his job. It should not, but it may happen that a diplomat gets angry. Here is a famous example: On August 30, 1939 at midnight, the British ambassador to Berlin, Sir Nevile Henderson, met the German foreign minister in a last British effort to prevent Germany

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from starting a war against Poland. The ambassador’s explanations made it clear that the German efforts to detach Britain from Poland had failed. After the ambassador was treated in a hostile and rude way and felt betrayed he lost his temper.44 One cannot help but feel sympathy with the ambassador’s reaction. Signaling Diplomats can also use non-verbal means to communicate, called signaling.45 An ambassador’s possibilities for diplomatic signaling are limited. In order to demonstrate his disapproval, he can decline an invitation or walk away from a social gathering. For example, the US Ambassador to Germany, Daniel Coats, declined the invitation to attend the ceremony where the American writer, Susan Sontag, who was one of the critics of the US administration, was awarded the German book trade’s prestigious Peace Prize on October 12, 2003 in Frankfurt.46 Other ambassadors might have reacted differently under similar conditions since diplomats are used to talking even to the enemy if necessary. That a diplomat walks out of a social gathering can happen under various circumstances. For example, it can be done as a simple protest or in a way that amounts to an insult. It can also happen under prearranged conditions. Brajesh Mishra, Indian chargé d’affaires in Beijing during the IndoPakistan war in 1971, recounts that at four or five banquets in November and December 1971 he walked out when the Chinese guest of honor delivered a speech attacking India.47 The normal practice, Mishra recalls, was that the host delivered his speech after the second course and the Chinese main guest replied immediately. During these four or five banquets, however, the speeches were made only after the desert had been served. As he found out later, the Chinese had indicated that they would like the Indian chargé d’affaires to complete his meal before he walked out. Thus, the Indian diplomat walked out of the dinner and ate it too. If the diplomat decides to pointedly leave a gathering he will have to answer questions for his motives and is at this point back to verbal communication. Indeed, verbal and non-verbal signals are often combined.48

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Israel’s ambassador to Sweden, Zvi Mazel, did not content himself with walking away from a function. An exhibit in Stockholm that he attended on January 17, 2004 featured a rectangular basin filled with red fluid and a boat floating in it that carried the picture of a Palestinian suicide bomber who had killed 22 people.49 The Ambassador who later called the artwork created by an Israeli artist living in Sweden “an obscene misrepresentation of reality” attacked it physically by ripping out electrical wires and throwing a spotlight into the basin. His government backed him, and Zachi Hanebi, Israel’s Minister for Internal Security, praised the ambassador’s “undiplomatic” behavior.50 Indeed, Ambassador Mazel had made use of undiplomatic signaling. Foreign ministries have wider opportunities to signal praise or displeasure. The Chinese government, for example, treated Prince Sihanouk after his ouster in 1970 as if he were still a head of state. To send a low level delegation to an important function, such as a state funeral, expresses coolness of the relationship. Attempts to isolate an ambassador in the host country demonstrate the same disapproval. Governments can also signal their intentions from decisions about the venue of a conference to movements of their military forces. Official or unofficial explanations and interpretations will, however, soon follow. Diplomatic Correspondence Harold Nicolson advanced the view that “diplomacy, as its name implies, is a written rather than verbal art”.51 The ratio between written and oral communication in diplomacy is difficult to assess. The use of information and communication technology in diplomacy has added to the importance of written communication. Put another way, diplomatic correspondence is still crucial. There are no generally applicable rules for written diplomatic correspondence. It is left to governments to establish rules for their foreign services. The rules in force for the State Department and US embassies, for example, are laid down in the Foreign Affairs Handbook.52 The rules that guide embassies have to be adapted to local usage.

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Thus, practices may vary. Over time various forms for diplomatic correspondence practiced by most countries have developed.53 Sometimes a difference is made between official and semi-official correspondence. Letters exchanged between persons dealing with administrative matters are called semi-official.54 A letter making clear that it emanates from a foreign ministry or a diplomatic mission is, however, an official document. There is no semi-official correspondence in any strict sense. Another distinction is made between more formal and less formal correspondence. The US Handbook, for example, calls a note verbale “less formal than a first-person note but more formal than an aide-memoire”.55 This distinction has no particular consequence. Correspondence that comes discernibly from a foreign ministry or a diplomatic mission is — to use the language of the International Court of Justice — imputable to these agencies, the non-paper being the only exception. If one checks the archives of an embassy one probably finds that most of the correspondence between the embassy and the host government consists of notes verbales and letters. The note verbale is the regular instrument of communication between embassies and the foreign ministry of the host country. It is an agency-to-agency communication and not addressed from person to person. It is typed on the embassy’s stationary and written in the third person. It is dated, sealed and initialed, but not signed. The title “note verbale” is usually written at the top of the paper, but not necessarily so. The note verbale begins with a courtesy phrase like “The Embassy of ... presents its compliments to the Ministry of Foreign Affairs of ... and has the honor ... Then follows the text. The note verbale is closed by using another courtesy phrase like “The Embassy of ... avails itself of this opportunity to renew to the Ministry of Foreign Affairs of ... the assurances of its highest consideration”. US practice differs. In the US foreign service an agency to agency communication written in the third person is called a “memorandum”; it does not bear any heading.56 In the correspondence of diplomatic missions of the United States the title “note verbale” is reserved to third person communications originating from the ambassador.57

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As the term note verbale reveals, this type of correspondence was originally used to confirm an oral communication.58 This practice, however, was given up a long time ago. A note verbale can be used to cover any subject, from administrative questions to the most difficult political issues. Since the note verbale is convenient it is also used within the United Nations, sometimes taking the place of a letter. If a foreign ministry sends an identical note verbale to all diplomatic missions it is called a circular note. The foreign ministry uses circular notes particularly to inform diplomatic missions on the local practices regarding privileges and immunities or on issues of protocol. When, for example, foreign guests are expected to attend the inauguration of a new president, the foreign ministry informs the diplomatic missions of the details of the ceremonies and procedures, such as the greeting of the guests at the airport, customs and immigration clearance, accommodation, credentials, inaugural functions and audience with the new president.59 Notes verbales sent by two or more embassies to the foreign ministry, so called collective notes, are rare. When various embassies join hands to make a joint intervention, for example, to protest against non-tariff trade barriers, they will prefer to address a letter to the foreign minister signed by the chiefs of mission participating in the joint intervention. In EU practice, a note verbale of the embassy of the country holding the presidency often replaces collective notes. Letters dominate an embassy’s correspondence with the host country. Among this type of correspondence the letters between the head of mission and the foreign minister stand out. They are notes in the real meaning of the word.60 A note addresses the recipient as “Excellency” or “Your Excellency” and ends with a courtesy phrase like “Accept, Excellency, the renewed assurances of my highest consideration”. The note is dated and signed. Written on the correspondence paper of the ambassador or foreign minister it uses the name, official designation and address of the recipient. The same style for a letter is used in correspondence between a head of mission and the chief executive and cabinet ministers of the host

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country and between two chiefs of mission at the same post, though these letters are not notes in the strict sense.61 Letters written in a polite way, but without the formalities of a note are widely used for diplomatic correspondence. On the embassy’s side, not only the ambassador but also members of his staff correspond with agencies, organizations and personalities of the host country. The bulk of an embassy’s correspondence with the host country in economic, development, cultural, and scientific matters happens by letters. Private persons of the receiving, sending or a third country can only be addressed by letters. Consulates have many private persons as customers, and therefore, correspond mostly by letters. Only in exceptional cases may a consulate correspond with a consulate of another state by note verbale. The type of correspondence an embassy prefers reflects its working style or habits. The British foreign service has a preference for letters;62 letters are also widely used in reporting and for instructions. The US foreign service is used to memoranda. The German foreign service typically uses an impersonal style. Instructions are those of the foreign office and not of a particular official. Reports are those of the embassy and not of a particular official. Reports in the first person are frowned upon, private letters in official matters between German missions and the Foreign Office are forbidden. Consequently, German diplomatic missions prefer the impersonal style of the note verbale. Embassies are no longer the only channels of communication between states. Governments communicate through their political leaders. Chief executives, foreign ministers, cabinet ministers, and heads of government agencies correspond directly with their foreign counterparts. Documents on foreign policy of major states illustrate that political leaders contribute considerably to diplomatic correspondence. Governments also communicate with international governmental organizations. Political leaders may choose whatever form of correspondence they consider appropriate for the occasion. They may use a third-person communication. One should call this type of communication, following the US practice, a note diplomatique.63 In 1952 the “battle of the notes” concerning the future

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of Germany became famous.64 The Soviet Union made suggestions for German unification and France, the United Kingdom and the United States answered, all by notes. Political leaders often use first-person communication. For issues of protocol they may adopt the formal style of a note that ambassadors and foreign ministers use in their mutual correspondence. This style was used, for example, by Prime Minister Benazir Bhutto of Pakistan when she congratulated H. D. Deve Gowda on his assumption of the office of Prime Minister of India on May 31, 1996. Prime Minister Gowda answered in the same way.65 When political leaders know each other well their letters may take on a personal tone. First names replace the formal “Excellency” and “best regards” the complimentary diplomatic clause. A letter dated October 12, 1990 from German Foreign Minister Hans-Dietrich Genscher to Secretary of State James Baker concerning the ratification of the Treaty on German Unification of September 12, 1990 by the US Senate starts with “Dear Jim” and ends with “best regards”.66 In other cases, letters simply focus on the subject and are devoid of special courtesy phrases. For example, in early summer of 2008 British Prime Minister Gordon Brown and the Secretary of State of the Holy See exchanged letters on the efforts to meet the Millennium Development Goals.67 As the tone of government-to-government correspondence is concerned there is a rich choice. Governments can dare to use a much tougher language than ambassadors because they are not threatened with being declared persona non grata. When a particularly harsh intervention has to be made, ambassadors have a tendency to suggest that the intervention be done by the foreign ministry at home. An aide-memoire (talking points) in the strict sense of the word summarizes the arguments put forward by one side and is handed over to the counterpart.68 Thus, one can make sure that the counterpart does not misunderstand what was said. The counterpart will welcome having the other side’s arguments in writing. He can use the aide-memoire when working on the dossier. When a diplomat, for example, has to make an intervention in the foreign

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ministry to explain his government’s position regarding the reform of the UN Security Council, it is convenient for the foreign ministry official if the aide-memoire explains the precise position of the diplomat’s government regarding a multifaceted and ever changing subject. An aide-memoire is written on the embassy’s or foreign ministry’s stationary and dated, but not necessarily initialed. A formal record of the discussion between a foreign ministry official and a diplomat, a pro memoria, is rarely established and handed over to the other side.69 There are papers that diplomats call non-papers. This is not black magic, but an attempt to downgrade the official status of a paper as low as possible. Non-papers are not written on official stationary and are neither signed, nor initialed, nor sealed. They just contain a message. The non-paper is handed to the counterpart. Thus, its origin is known. Since the paper does not bear any attribution, the diplomat has the chance to deny his authorship. Practices in which way and under which circumstance non-papers are used differ considerably. Some diplomats use it when they want to sound out the reaction of the other side to a proposal in a sensitive matter. In this case, using a non-paper means flying a kite. A non-paper can also help to avoid asking for an appointment with a busy official, for example a cabinet minister. When the diplomat meets the minister at a social function he uses the chance to discuss the problem and, if well prepared, hands the minister a non-paper on the subject. This gives the minister the possibility to react as he wishes. He may make use of the paper and feed it into the bureaucratic machinery or disregard it. Non-papers are helpful to start or restart talks. In mid-June 2008, the EU high representative for the common foreign and security policy presented Iranian officials with a non-paper titled “The Way Forwards to Negotiations” with a view to get the talks on the Iranian nuclear program started.70 Non-papers are also in use with international governmental organizations. When a government or an official from the secretariat wants to get a discussion under way distributing a non-paper can achieve this goal. In these instances, the authorship is typically

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made clear. On August 8, 2005, France suggested in a non-paper the creation of a working group to examine the arrangements for transforming UNEP into a specialized agency of the UN.71 Before a successor of Kofi Annan as UN Secretary General was elected, Canada issued a “Canadian Non-Paper on the Process for the Selection of the Next Secretary-General”.72 The Chair of the Standing Committee on Copyright and Related Rights of the WIPO published on April 20, 2007 a “Non-paper on the WIPO Treaty on the Protection of Broadcasting Organizations”.73 The paper, which was prepared after discussions with member states, dealt particularly with the protection of the program-carrying signals. These non-papers have the characteristics of somewhat downgraded proposals. In the US practice a non-paper is something else. It is a downgraded aide-memoire that summarizes an oral representation.74 The American system thus keeps the tradition of a bout de papier alive.75 For example, the foreign minister of the host country is expected to come to Washington on an official visit. The American government intends to put the sensitive item of cooperation in fighting drug production and trafficking on the agenda. The embassy is instructed to sound out whether the guest is willing to discuss detailed proposals during his visit to Washington. After his talks with a foreign ministry official, the US diplomat leaves a non-paper reflecting his arguments with the official. Whenever states want to communicate they find ways and means to do so. They have found solutions even to talk to the enemy. As far as written correspondence is concerned, states and their diplomats are not bound by general international rules and can use their imagination. They only have to make sure that the message reaches the addressee and is correctly understood. The Mode of Diplomatic Negotiations Diplomatic negotiations are typically conducted on a confidential basis. Only the parties involved are aware that the negotiations are going on, which contents they have, and which results they produce.

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When only the parties are aware that negotiations are going on, they are of a secret character. When it is known that negotiations are being held, but its contents and results are not made public, one could call this approach as diplomacy behind closed door (à huis clos). The classical approach of secret negotiations or behindclosed-doors diplomacy is often impossible, particularly when important issues are at stake or when important leaders negotiate, because of the curiosity and pressure of the media. The confidentiality of diplomacy has been under attack because it was considered the cause for misunderstanding, intrigues, conflict and war. During the French revolution an attempt was made to abolish secret diplomacy. In 1792, the new French Foreign Minister, General Charles François Dumouriez, made diplomatic correspondence available to the Committee of Foreign Affairs and asked the French representative in Berlin to show his counterpart his instructions from Paris.76 This policy was, however, quickly forgotten. The next attempt to introduce open diplomacy was made by the Bolsheviks. Their decree on peace of November 8, 1917 announced the end of secret diplomacy and promised to publish secret treaties.77 They, however, did not succeed in conducting the peace negotiations at Brest-Litovsk with the Central Powers in public sessions. By and by the Soviet Union returned to traditional diplomatic methods and over time became one of the most secretive powers. As previously mentioned, President Woodrow Wilson was partly successful. His demand that international treaties should be made public found its way into the Covenant of the League of Nations and from there into the Charter of the United Nations. Multilateral treaties are mostly “openly arrived at”, as Wilson had suggested, bilateral treaties rarely. Treaties become finally public after they have been registered and published by the UN Secretariat. As far as open diplomacy is concerned President Wilson did not follow his own proposal. As we know from Harold Nicolson, who was an eyewitness, President Wilson forgot his demands after having arrived in Paris for the peace conference and conducted secret old style negotiations with prime ministers David Lloyd George and George Clemenceau.78

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The survival of the confidentiality of diplomatic negotiations has its reason. If negotiations were exposed to the public, the special interests of various groups may hamper progress. Political parties, the legislature, opposing agencies within the government, private interest groups, business or the media might attack the aims and tactics of the negotiators. Third countries that have an interest in the negotiations might intervene. All of this can happen to all parties of the negotiations. In negotiations, one or several sides have to give in on at least some points. If this has to be done in public, the parties will fear a loss of face and, therefore, be reluctant to agree to a final understanding. Thus, confidentiality remains a core element of diplomacy. Here is an example of successful confidential diplomacy: On December 9, 2003 the government of Libya surprised the international community by promising to disclose and dismantle all weapons of its mass destruction programs. This pledge was the result of secret negotiations with the United Kingdom and the United States that had lasted for nine months.79 Only the secrecy of the talks had made it possible to achieve this important goal of non-proliferation. Open diplomacy is, however, more than a slogan. The plenary meetings of international conferences and of international governmental organizations are mostly public, though decisions are prepared through confidential negotiations. Many governments and IGOs have occasionally announced their policy through public declarations. These declarations do not substitute for negotiations but can mark the beginning of negotiations. The efforts to foster open diplomacy have not completely disappeared. After the United States adopted a freedom of information act in 1966, many other countries followed this example.80 Meanwhile, freedom of information acts in nearly 70 countries give private persons the right to access certain categories of governmental documents. Among those documents are also those that refer to a state’s foreign policy.81 The information, which is accessible on the basis of a freedom of information act, comes at a moment when the activities are already completed. However, the idea that a decision

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may eventually be made public can inspire the deciding governmental agency to be particularly careful. The business of diplomats is communication. Bilateral diplomats correspond with the ministry of foreign affairs, other ministries and many agencies. Embassies and consulates try to establish a network of contacts not only with government officials but also with members of parliament, representatives of political parties, of churches, private business, trade unions, universities, cultural institutes, the media and other members of the civil society. Multilateral diplomats focus on communicating with members of other permanent missions and delegations and the staff members of the secretariat. The international civil service is busy in communicating with the representatives of member states. The representatives of states and international governmental organizations talk and correspond in writing by using the traditional methods. They also try to explain their activities to the public, with different intensity and by various means. In the center of these activities are the diplomats and international officials. The success of diplomatic communications also depends on these persons. Contacts yield positive results only when they are established and maintained with care. David Lloyd George, British prime minister from 1916 to 1922, thought that “diplomats were invented simply to waste time”.82 He might be much surprised that at the beginning of the 21st century diplomats do not belong to an endangered species.

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Hocking, Brian, editor, Foreign Ministries: Change and Adaptation (New York: St. Martin’s Press, 1999). Hoffmann, Klaus and Glietsch, Herbert, Konsularrecht (Starnberg: R.S. Schulz, 2001). Ipsen, Knut, Voelkerrecht (Muenchen: C. H. Beck, fourth edition, 1999). Joyner, Christopher, editor, The United Nations and International Law (Cambridge: Cambridge University Press, reprinted 1999). Johnson, Gaynor, editor, The Foreign Office and British Diplomacy in the Twentieth Century (London and New York: Routledge, 2005). Klabbers, Jan, An Introduction to International Institutional Law (Cambridge University Press, fifth printing, 2006). Kurbalija, Jovan, Modern Diplomacy, editor, at www.diplomacy.edu/ Books/mdiplomacy_book/content.ftm (accessed on August 26, 2008). Lee, Luke T., Consular Law and Practice (New York: Oxford University Press, second edition, 1991). Lord Gore-Booth, editor, Satow’s Guide to Diplomatic Practice (London and New York: Longman, fifth edition, eighth impression, 1995), quoted as Satow’s Guide. Macleod, I., Hendry, I. D., and Hyett, Stephen, The External Relations of the European Communities (Oxford: Oxford University Press, 1996). Mattingly, Garett, Renaissance Diplomacy (London: Penguin, 1965). McCaffree, Mary Jane, Innis, Pauline, and Sand, Richard M., Protocol. 25th Anniversary Edition. The Complete Handbook of Diplomatic, Official and Social Usage (Dallas: Durban House, 2002). McClanahan, Grant V., Diplomatic Immunity. Principles, Practices, Problems (New York, 1989). Melissen, Jan, editor, Innovation in Diplomatic Practice (New York: St. Martin’s Press, 1999). Melissen, Jan, editor, The New Public Diplomacy. Soft Power in International Relations (Houndmills: Palgrave Macmillan, 2005). Morgan, William D. and Kennedy, Charles Stuart, editors, American Diplomats. The Foreign Service at Work (New York: iUniverse, 2004).

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Nicolson, Harold, The Evolution of Diplomatic Method (Westport: Greenwood Press, reprinted 1977). Perez, Amadeo, ‘The System of Privileges and Immunities Applicable to the International Organizations in Switzerland and to the Permanent Foreign Delegations in Geneva,’ at www.eda. admin.ch/etc/medialib/downloads/edazen/topics/intorg/un/ gemiss.Par.0174.File.tmp/PZ-Brochure-24.07–ANGLAIS.Pdf (accessed on June 25, 2008). Plischke, Elmer, U.S. Department of State. A Reference History (Westport and London: Greenwood Press, 1999). Potter, Evan H., Cyber-Diplomacy: Managing Foreign Policy in the Twenty-First Century (McGill-Queens University Press, 2002). Rangaragan, I. N., ‘Diplomacy, States and Secrecy on Communications,’ Diplomacy and Statecraft, Vol. 9, No. 3 (November 1998), pp. 18–49. Richtsteig, Michael, Wiener Uebereinkommen ueber diplomatische und konsularische Beziehungen. Entstehungsgeschichte, Kommentierung, Praxis (Baden-Baden: Nomos, 1994). Seidl-Hohenveldern, Ignaz and Loibl, Gerhard, Das Recht der Internationalen Organisationen einschliesslich der Supranationalen Gemeinschaften (Koeln: Heymann Verlag, seventh edition, 2000). Shaw, Malcolm N., International Law (Cambridge: Cambridge University Press, fourth edition, 1997). Simma, Bruno, editor, Charter of the United Nations: A Commentary (Oxford: Oxford University Press, second edition, 2002). Smith, Courtney B., Politics and Process at the United Nations. The Global Dance (Boulder and London: Lynne Rienner, 2005). Spence, David, editor, with Edwards, Geoffrey, The European Commission (London: John Harper, 3rd edition, 2006). Stearns, Monteagle, Talking to Strangers. Improving American Diplomacy at Home and Abroad (Princeton: Princeton University Press, 1996). Steigman, Andrew L., The Foreign Service of the United States (Boulder and London: Westview Press, 1985).

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Traub, James, The Best Intentions. Kofi Annan and the UN in the Era of American World Power (New York: Farrar, Straus and Giroux, 2006). Vagts, Alfred, The Military Attaché (Princeton, 1967). von Glahn, Gerhard, Law Among Nations. An Introduction to Public International Law (Boston: Allyn and Bacon, seventh edition, 1996). Wolfrum, Ruediger and Philipp, Christiane, editors, United Nations: Law, Policies and Practice (Muenchen and Dordrecht: C. H. Beck and Martinus Nijhoff, 1995). The titles listed in this bibliography are quoted in the text in abbreviated form. Internet Sources for Documents used in the Text: Vienna Convention on Diplomatic Relations of 1961 (CDR): untreaty. un.org/ilc/texts/instruments/english/conventions/9_1_1961.pdf Vienna Convention on Consular Relations of 1963 (CCR): untreaty. un.org/ilc/texts/instruments/english/conventions/9_2_1963.pdf Convention on Special Missions of 1969 (CSM): untreaty.un.org/ilc/ texts/instruments/english/conventions/9_3_1969.pdf Vienna Convention on the Law of Treaties of 1969: untreaty.un. org/ilc/texts/instruments/english/conventions/1_1_1969.pdf Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents of 1973: untreaty.un.org/ilc/texts/instruments/english/conventions/ 9_4_1973.pdf Convention on the Representation of States in Their Relations with International Organizations of a Universal Character of 1975 (CRSIO): untreaty.un.org/ilc/texts/instruments/english/ conventions/5_1_1975.pdf Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations of 1986: untreaty.un.org/ilc/texts/instruments/english/conventions/ 1_2_1986.pdf

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Consolidated Versions of the Treaty on European Union and of the Treaty Establishing the European Community (Official Journal of the European Union, December 29, 2006): eur-lex.europa.eu/ LexUriServ/site/en/oj/2006/ce321/ce32120061229en00010331.pdf Foreign Service Act of 1980 (United States): www.usaid.gov/pubs/ ads/400/fsa.pdf Department of State: Foreign Affairs Manual (FMA) and Foreign Affairs Handbooks: www.state.gov/m/a/dir/regs/ Other Sources: For many of the conventions see: Dembinski, Ludwik, Diplomatic and Consular Law. Selected Instruments (Bern: Peter Lang, 1992) For many of the articles quoted in the text see: Proquest and New York Times archives Source for Resolutions of the United Nations General Assembly: www.un.org/documents/resga.htm Source for United Nations documents and publications: United Nations Bibliographic Information System: http://unbisnet.un. org/ Source for Resolutions and Decisions of the Economic and Social Council: www.un.org/ecosoc/docs/resdec.asp?type=year=2007 Terms in the text referring to persons apply to both men and women.

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Chapter 1:

The Permanence of Diplomacy

1. An earlier version of Chapter 1 was published under the title ‘The Inertia of Diplomacy’ in Diplomacy and Statecraft, Vol. 19, 2008, pp. 321–349. 2. For a discussion of the various definitions of diplomacy see Elmer Plischke, ‘Diplomacy-Search for its Meaning’, in Elmer Plischke, editor, Modern Diplomacy (Washington: American Enterprise Institute, 1979), pp. 27–36. See also Hedley Bull, The Anarchical Society: A Study of Order in World Politics (New York: Columbia University Press, 1977), pp. 162–163; Satow’s Guide, p. 3; Alan James, ‘Diplomacy and International Society’, in International Relations, Vol. 6, No. 6, pp. 936–937. Stearns, Talking to Strangers, p. 11; Barston, Modern Diplomacy, pp. 1–8. 3. Hamilton and Langhorne, The Practice of Diplomacy, focus on the historical development of diplomatic practice. For an analysis of modern developments see Brian Hocking, ‘Diplomacy: New Agendas and Changing Strategies’, 2002, at www.usip.org/virtualdiplomacy/ publications/reports/14b.html [August 25, 2008]. 4. Similarly Adam Watson, Diplomacy. The Dialogue between States (London: Routledge, 1991, reprint), p. 11. In his institutional approach, Bátora, grants the sovereign state an “informational prerogative” without taking into account the relationship between diplomacy and foreign policy. 5. For the United States: The National Security Strategy, March 2006, at www.whitehouse.gov/nsc/nss/2006/ [July 25, 2007], and Department of State and USAID Strategic Plan for Fiscal Years 2007 to 2012, at www.state.gov/s/d/rm/rls/dosstrat/2007/ [July 25, 2007]; for the 393

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6. 7.

8.

9.

10.

11. 12.

13. 14. 15.

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United Kingdom: International Priorities, at www.fco.gov.uk/servlet/ front?pagename=Open; Market/Xcelerate/ShowPage&c=Page&cid= 1007029393465 [July 25, 2007]. Klabbers, Introduction, p. 195, suggests “to think member states as organs of the organization”. To consider diplomacy as an institution is a point of departure for the English School, see for example Watson, Diplomacy, pp. 14–21; for an overview see Iver B. Neumann, ‘The English School on Diplomacy’, Discussion Papers in Diplomacy, No. 79 (The Hague: Netherlands Institute of International Relations ‘Clingendael’, 2002), pp. 5–6. Communication is often mentioned as key element of diplomacy. See, for example, James, ‘Diplomacy and International Society’, International Relations, Vol. 6, No. 6, November 1980, pp. 942–948; For newer and more detailed attempts see Lora Anne Viola, ‘Talking States: A Theory of Diplomacy’, at http://cas.uchicago.edu/workshops/cpolit/ papers/viola.doc [July 20, 2007]; Christer Joensson and Martin Hall, Essence of Diplomacy (Houndmills: Palgrave Macmillan, 2005), pp. 67–97. Watson, Diplomacy, pp. 120–131, prefers the term dialogue. Article 3, para. 1, lit. a, of the Vienna Convention on Diplomatic Relations of 1961 (CDR), Article 9, para. a, of the Convention on Special Missions of 1969 (CSM), Article 6 of the Convention on Relations between States and International Organizations of a Universal Character of 1975 (CRSIO). Raymund Cohen, ‘Reflections on the New Global Diplomacy: Statecraft 2500 BC to 2000 AD’, in Jan Melissen Innovation, p. 3, recounts the story of a messenger who around 2500 BC had to bring a letter inscribed on a tablet from the kingdom of Ebla on the Mediterranean to the kingdom of Hamazi in present day Iran. Jovan Kurbalija, ‘Diplomacy in the Age of Information Technology’, in Melissen, Innovation, p. 183. CDR, CSM, CRSIO, Convention on the Privileges and Immunities of the United Nations of 1946 (CPIUN), Convention on Privileges and Immunities of Specialized Agencies of 1947 (CPISA), and numerous Headquarters Agreements between IGOs and host states. Bruce Laingen, ‘Iranian Takeover of the American Embassy’, in Morgan and Kennedy, American Diplomats, p. 190. The Spectator, December 11, 1999. Dembinski, Modern Law, pp. 119–120.

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16. Benno H. Signitzer and Timothy Coombs, ‘Public Relations and Public Diplomacy: Conceptual Convergence’, Public Relations Review, Vol. 18, No. 2, Summer 1992, pp. 140–142. 17. See the various definitions of the Edward R. Murrow Center of Public Diplomacy at the Fletcher School of Tufts University, at http://fletcher. tufts.edu/murrow/pd/definitions.html; Jan Melissen, ‘The New Public Diplomacy: Between Theory and Practice’, in Melissen (editor), The New Public Diplomacy, pp. 11–16. 18. Foreign and Commonwealth Office, Foreign Policy Review of December 13, 2005, at www.fco.gov.uk/Files/kfile/Definitions%20of20 Public%20Diplomacy.pdf [September 14, 2007]. 19. Alan K. Henrikson, ‘What Can Public Policy Achieve?’ Discussion Papers in Diplomacy, No. 104 (The Hague: Netherlands Institute of International Relations ‘Clingendael’, 2006), pp. 9–10. 20. See for the following: Embassy of the United States in Japan, at http://tokyo.usembassy.gov/e/p/tp-20070615-72.html [June 28, 2007]. 21. Recommendations by the Government of Japan to the Government of the United States regarding Regulatory Reform and Competition Policy, at www.mofa.go.jp/region/n-america/us/report0612.pdf [June 28, 2007]. 22. The same prohibition is found in Articles 55 of the CCR, 47 of the CSM, 77 of the CRSIO. 23. Similar regulations are found in Articles 23 of the CCR, 12 of the CSM, IV of the CPIUN and in Headquarters Agreements. 24. All details are taken from the web site of the Norwegian Embassy in Dar es Salaam, at www.norway.go.tz/ [June 28, 2007]. 25. ‘Greetings from the Ambassador’, on the web site mentioned in note 24. 26. Strobe Talbott, ‘Globalization and Diplomacy: A Practitioner’s Perspective’, Foreign Policy, Fall 1997, Iss. 108, p. 68. 27. Lisette Andreae and Karl Kaiser, ‘Die “Aussenpolitik der Fachministerien’, in Wolf-Dieter Eberwein und Karl Kaiser (editors), Deutschlands Neue Aussenpolitik, Band 4, Institutionen und Ressourcen (R. Oldenbourg Verlag, Muenchen 1998), pp. 30–31. 28. Talbott, ‘Globalization and Diplomacy’, Foreign Policy, Fall 1997, Iss. 108, p. 80. 29. Grau and Schmidt-Bremme, Gesetz ueber den Auswaertigen Dienst, pp. 104–106. 30. Foreign Service Act of 1980, Sec. 207, 2 Foreign Affairs Manual (FAM) 113.1.

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31. According to Lawrence Wright, The Looming Tower, Al-Qaeda and the Road to 9/11 (New York: Alfred A. Knopf, 2006), pp. 327–328, Barbara Bodine, US Ambassador to Jordan, got her way in a conflict with John O’Neill, FBI special agent, who had come to Yemen in 2000 to investigate the USS Cole incident. 32. CSIS Report The Embassy of the Future, p. 48. 33. Jon Pevehouse, Timothy Nordstrom and Kevin Warnke, ‘International Governmental Organizations’, in Paul F. Diehl (editor), The Politics of Global Government. International Organizations in an Interdependent World (Boulder: Lynne Rienner, third edition, 2005), pp. 18–20, for the year 2000. 34. Seidl-Hohenveldern and Loibl, Das Recht der Internationalen Organisationen, pp. 8–9. 35. See Article 6 of the CRSIO. The Convention has not entered into force but indicates general practices of states. 36. E. R. Appathurai, ‘Permanent Missions in New York’, in Berridge and Jennings, Diplomacy at the UN, p. 99. 37. Appathurai, ‘Permanent Missions’, in Berridge and Jennings, Diplomacy at the UN, pp. 98–100; Dembinski, Modern Law, pp. 253–262 with references. For the style of work at the UN see Satow’s Guide, pp. 312–314. 38. Seidl-Hohenveldern and Loibl, Recht der Internationalen Organisationen, pp. 123–126. 39. The focus here is on understanding the work of international civil servants. For a discussion of the various theoretical concepts, see Volker Rittberger, ‘Theory of International Organizations’, in Wolfrum and Philipp, United Nations, pp. 760–770. 40. Robert S. Jordan, ‘Law of the International Civil Service’, in Joyner, United Nations and International Law, p. 389. 41. UNDP-Countries: UNDP Country Offices and other Programmes, at www.undp.org/countries [July 7, 2008]. 42. European Commission Delegations, at ec.europa.eu/external_relations/ delegations/intro/role.htm [July 8, 2008]. 43. Article VIII of the Peace Treaty of Osnabrueck, identical to Article LXIV of the Peace Treaty of Muenster, text in Helmuth K. G. Roennefarth, Konferenzen und Vertraege, 1492–1914 (Wuerzburg: Ploetz, second edition, 1958), p. 79. 44. Louis Henkin, ‘The Future of International Law’, in Charlotte Ku and Paul F. Diehl (editors), International Law: Classics and Contemporary Readings (Boulder: Lynne Rienner 1998), p. 551; for considerations on

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45. 46. 47. 48. 49. 50.

51.

52.

53.

54. 55. 56.

57. 58.

the decline of the state, see Martin van Creveld, The Rise and Fall of the State (Cambridge: Cambridge University Press, 1999), pp. 336–414; Jessica T. Mathews, ‘Power Shift’, in Foreign Affairs, January/ February 1997, pp. 50–66. Martin Wolf, ‘Will the Nation-State survive Globalization?’ Foreign Affairs, January/February 2001, p. 182. The term is used by Brian Hocking, ‘Diplomacy’, for the source see footnote 3. Elizabeth T. Harper, ‘Immigration Policy and Foreign Affairs’, in Herz, Consular Dimension, pp. 8–10. See the title of a symposium “The Consular Dimension of Diplomacy”, Herz (editor), Consular Dimension. van Creveld, The Rise and Fall of the State, pp. 337–354. Michael Zuern and Stephan Leibfried, ‘A New Perspective on the State’, in Stephan Leibfried and Michael Zuern (editors), Transformation of the State? (Cambridge University Press, 2005), pp. 17–20. See for example the “Office of the Coordinator for Counterterrorism” of the Department of State, at www.state.gov/s/ct/ [June 13, 2007] and the unit for “Internationale Terrorismusbekaempfung und -praevention”, of the German Federal Foreign Office, at www.auswaertiges-amt.de/ diplo/de/Aamt/organisationsplan-druckversion.pdf [June 13, 2007]. US Department of State, Office of the Coordinator for Counterterrorism, Success Stories, at www.state.gov/s/ct/field/c17575.htm [October 25, 2007]. Juergen Kleiner, ‘Diplomacy with Fundamentalists: The United States and the Taliban’, The Hague Journal of Diplomacy 1 (2006), pp. 209–234. US State Department: The Global Initiative to Combat Nuclear Terrorism, at www.state.gov/t/isn/c18406.htm [October 25, 2007]. UN Action to Counter Terrorism, at www.un.org/terrorism/strategycounter-terrorism.html [October 25, 2007]. For this and the following see John M. Kline, ‘Continuing controversies over state and local government foreign policy sanctions’, Publius, Spring 1999, Vol. 29, Iss. 2, p. 111. David C. Slade, ‘Can a state have a foreign policy?’, The World and I, October 2000, Vol. 15, Iss. 10, p. 62. Michèle Knodt, ‘Auswaertiges Handeln der Deutschen Laender’, in Eberwein und Kaiser, Deutschlands Neue Aussenpolitik, pp. 153–166.

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59. See for example the Web site of Baden-Wuerttemberg, under ‘BadenWuerttemberg und die EU’, at www.baden-wuerttemberg.de/de/ Baden-Wuerttemberg_und_die_EU/85731.html [July 19, 2007]. 60. Bangor Daily News, January 13, 1999. 61 Rob Jenkins, ‘India’s States and the Making of Foreign Economic Policy: The Limits of the Constituent Diplomacy Paradigm’, Publius, Fall 2003, Vol. 33, Iss. 4, p. 63. 62. European Commission, Citizenship, ‘Europe for citizens programme 2007– 2013’, at http://ec.europa.eu/citizenship/guide_en.html [July 21, 2007]. 63. Sister Cities International, Goals, at www.sister-cities.org/sci/aboutsci/ mission [July 21, 2007]. 64. The Glocalization Manifesto, September 2004, at www.glocalforum. org/?id=197&id_=193&Ing=en [July 22, 2007]. 65. Therefore, the definition of diplomacy as “a general instrument of communication among globalized societies”, — Wilfried Bolewski, Diplomacy and International Law in Globalized Relations (Berlin: Springer, 2007), p. 3 — is of a futuristic character. 66. See Jerry Z. Muller, ‘Us and Them. The Enduring Power of Ethnic Nationalism’, in Foreign Affairs, March/April 2008, Vol. 87, No. 2, p. 18. 67. Brian Hocking, “Catalytic Diplomacy: Beyond ‘Newness’ and ‘Decline’,” in Melissen, Innovation, pp. 21–42. 68. Alan K. Henrikson, ‘The Future of Diplomacy: Five Projective Visions’, Discussion Papers in Diplomacy, No. 96 (The Hague: Netherlands Institute of International Relations ‘Clingendael’, 2005), pp. 4–5. 69. Talbot, ‘Globalization and Diplomacy’, Foreign Affairs, Vol. 108 (1997), p. 78. 70. Akira Iriye, Global Community. The Role of International Organizations in the Making of the Contemporary World (Berkeley: University of California Press, 2002), p. 162. 71. Text at www.icbl.org/treaty/treatyenglish.html. The effort had only limited success since 40 states, among them important ones, have not become a party to the Convention, see International Campaign to Ban Landmines, at www.icbl.org/treaty/snp [November 17, 2007]. 72. For an overview, see Klaus Huefner, ‘Non-governmental Organizations’, in Wolfrum and Philipp, United Nations, pp. 928–935; Antonio Donini, ‘The Bureaucracy and the Free Spirits: Stagnation and Innovation in the Relationship Between the UN and NGOs’, in Weiss and Gordenker, NGOs, pp. 83–101.

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73. Consultative Status with ECOSOC at www.un.org/esa/coordination/ ngo/navigation_menu.htm [November 18, 2007]. 74. UN Department of Public Information: About NGO Association with the UN, at www.un.org/dpi/ngosection/about-ngo-assoc.asp [November 18, 2007]. 75. Iriye, Global Community, p. 204. 76. See the critical remarks by Shaun Riordan, The New Diplomacy (Cambridge: Polity, 2003), pp. 91–93. 77. Stearns, Talking to Strangers, pp. 134–135. 78. Louise Diamond and John McDonald, Multi-Track Diplomacy. A Systems Approach to Peace (West Hartford: Kumarian Press, third edition, 1996), pp. 37–42. 79. The Hindu, June 4, 2001; Asia Times online, July 16, 2003. 80. United Nations Global Compact: What is the Global Compact, at www.unglobalcompact.org/AboutTheGC/index.html [July 24, 2008]. See also Smith, The Best Intentions, pp. 146–147. 81. Stimson Center, Equipped for the Future-Managing US Foreign Affairs in the 21st Century, p. 25, at www.stimson.org/pdf/ausr1.pdf [December 13, 2007]. 82. For this and the following see Eytan Gilboa, ‘Real-Time Diplomacy: Myth and Reality’, in Potter, Cyber-Diplomacy, pp. 83–104. 83. Quoted by France Diplomatie, Ministry’s Mission-decision, at www. diplomatie.gouv.fr/en/ministry_158/ministry-missions_2050/ decision_1569.htm?var [October 16, 2007]. 84. Different Riordan, The New Diplomacy, pp. 109–119, who sees diplomacy in decline. 85. Joensson and Hall, Essence of Diplomacy, p. 116. 86. Vladimir E. Hrabar, De Legatis et Legationibus Tractatus Varii (Dorpat, 1906): Bernardi de Rosergio, ‘Ambaxiator Brevilogus’, p. 28. 87. Hrabar, De Legatis, pp. 4 and 6. 88. Mattingly, Renaissance Diplomacy, pp. 45–46. 89. See Paul Sharp, ‘Who Needs Diplomats? The Problem of Diplomatic Representation’, at www.diplomacy.edu/books/mdiplomacy_book/ sharp/p.%20sharp.htm [December 2, 2007]. 90. Mattingly, Renaissance Diplomacy, p. 45. 91. The idea is borrowed from John Swift, ‘The Changing Role of Ambassadors and Embassies’, Administration, Vol. 46, No. 1 (Spring 1998), pp. 3–13.

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Chapter 2: The Ministry of Foreign Affairs and the Foreign Service 1. Nicolson, Evolution of Diplomatic Method, p. 55. 2. United States Institute of Peace, Library and Links: Foreign Affairs Ministries on the Web, at www.usip.org/library/formin.html [February 27, 2008]. 3. In Germany the Ministry for Economic Cooperation and Development is in charge of development assistance; until abolished by the Foreign Affairs Agencies Consolidation Act of 1998 a separate Arms Control and Disarmament Agency existed in the United States, see Reorganization Plan and Report of December 30, 1998, at www. State.gov/www/global/general_foreign_policy/rtp_981230_reorg2.h tm [January 25, 2001]. 4. Aharon Klieman, ‘Israel. Succumbing to Foreign Ministry Declinism’, in Hocking, Foreign Ministries, pp. 89–91. 5. Berridge, Diplomacy, pp. 11–19. 6. For the system within the FCO see John Coles, Making Foreign Policy. A Certain Idea of Britain (London: John Murray, 2000), pp. 84–87. 7. The Canadian Department of Foreign Affairs and International Trade limited the number of e-mails by deciding that particular e-mails can only be sent by higher echelons, Bátora, Foreign Ministries and the Information Revolution, pp. 98–99. 8. For the Foreign and Commonwealth Office see the remarks by Alan Campbell, ‘From Carbon Paper to E-mail: Changes in Method in the Foreign Office, 1950–2000’, in Johnson, The Foreign Office, p. 172. 9. See Chapter 1, and also Brian Hocking, ‘Introduction. Foreign Ministries: Redefining the Gatekeeper Role’, in Hocking, Foreign Ministries, pp. 9–10. 10. In the United States, besides the executive departments (ministries), more than 120 independent federal agencies are handling aspects of foreign policy; Plischke, U.S. Department of State, pp. 474–476. 11. Jonathon W. Moses and Torbjørn Knutsen, ‘Globalization and the Reorganization of Foreign Affairs Ministries’, Discussion Papers in Diplomacy, No. 80 (The Hague: Netherlands Institute of International Relations ‘Clingendael’, 2002), pp. 16–21, suggest that the ministry of foreign affairs transfers most of its functions to other ministries,

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12.

13.

14. 15.

16. 17. 18.

19.

20.

21.

22. 23.

shrinks to a bureau within the prime minister’s office and focuses on a coordinating role. This proposal overlooks that many functions of a foreign ministry cannot be transferred and that the envisaged abolition of the post of the foreign minister is a taboo in most states. See for example: The 9/11 Commission Report. Final Report of the National Commission on Terrorist Attacks Upon the United States, authorized edition (New York: W. W., Norton), pp. 93–95. This is done, for example, by the United States Foreign Affairs Manual, 1FAM 021.1 and the German Foreign Service Act (Grau and Schmidt-Bremme, Gesetz ueber den Auswaertigen Diens, pp. 87–91). Copy in the author’s possession. Gareth Evans and B. Grant, Australia’s Foreign Relations in the World of the 1990s (Melbourne University Press, second edition, 1995), p. 52. See the list: Congressional Testimony for 2007 at www.state.gov/s/ h/tst [February 29, 2008]. Department of State Organization Chart (text only): January 2008, at www.state.gov/r/pa/ei/rls/dos/99484.htm [February 29, 2008]. France Diplomatie: European Union. Who does what in France for the European Union/at www.diplomatie.gouv.fr/en/european-union_157/ index.html [March 22, 2008]. David Allen, ‘The United Kingdom. Adapting to the European Union within a transformed world’, in Brian Hocking and David Spence, Foreign Ministries in the European Union. Integrating Diplomats (Houndmills: Palgrave, 2002), pp. 258–261. Brian Hocking, ‘Introduction: Gatekeepers and Boundary-SpannersThinking about Foreign Ministries in the European Union’, in Hocking, Foreign Ministries in the European Union, pp. 9–14. Coles, a former Permanent Under-Secretary of the FCO estimates that over fifty percent of his time was spent on management issues. See John Coles, Making Foreign Policy: A Certain Idea of Britain (Murray, 2000), p. 31. Coles, Making Foreign Policy, p. 104. Timothy Hannah, ‘Performance Management in a Ministry of Foreign Affairs’, draft of a paper, dated May 29, 2007, delivered at the Conference of Foreign Ministries: Adaptation to a Changing World, Bangkok, 14–15 June 2007, at www.diplomacy.edu/Conferences/ MFA2007/papers/hannah.pdf [March 2, 2008].

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24. US Department of State: Careers Representing America, at careers. state.gov/index.html [March 3, 2008]; Steigman, Foreign Service, pp. 31-51; Stearns, Talking to Strangers, pp. 92-111; George F. Kennan, ‘Diplomacy without Diplomats?’ Foreign Affairs, Vol. 76, 1997, pp. 198–212. 25. Text of the Act at www.usaid.gov/pubs/ads/400/fsa.pdf [March 4, 2008]. 26. US Department of State Careers-Who Qualifies, at careers.state.gov/ officer/who-qualifies.html [March 5, 2008]. 27. Figures taken from US Department of State, HR Fact Sheet as of 9/30/2007, at www.state.gov/m/dghr/c24894.htm [March 3, 2008]. 28. Grau and Schmidt-Bremme, Gesetz ueber den Auswaertigen Dienst, pp. 69–80; good overview in the OECD-Sigma paper: ‘Classification and Career development in the German Foreign Service’, at www. oecd.org/dataoecd/22/62/34874084.pdf [March 3, 2008]. 29. For details see Auswaertiges Amt: The Foreign Service — a resilient and mobile force, at www.auswaertiges-amt.de/diplo/en/Aamt/ AuswDienst/Mitarbeiter.html [March 3, 2008]. 30. Juergen Kleiner and Peter Poddey, ‘Rotation im Auswaertigen Dienst’, verwaltung und fortbildung, 1984, pp. 171–181. 31. See the remark by George F. Kennan, ‘The Future of our Professional Diplomacy’, Foreign Affairs, Vol. 33, 1955, pp. 573–574. 32. Steigman, Foreign Service, p. 46. 33. See the memoirs by Anatoly Dobrynin, In Confidence. 34. 2 FAM 070. 35. Shane Harris, ‘The Unquiet Americans’, Government Executive, Vol. 35, No. 6 (May 2003), p. 40. 36. For the British practice see Alyson Bailes, ‘Reflections on Thirty Years in the Diplomatic Service’, in Johnson, The Foreign Office, p. 196. 37. Stearns, Talking to Strangers, p. 81. 38. The function of a DCM is defined by 2 FAM 113.3.h. 39. François de Callières, The Art of Diplomacy, p. 75. 40. For a more modern list see US Department of State, Careers Representing America, at careers.state.gov/officer/who-qualifies.html [August 25, 2008]. See also the list of twenty-five skills at Chas. W. Freeman, Jr., Arts of Power. Statecraft and Diplomacy (Washington, DC: United States Institute of Peace Press, sixth printing, 2007), pp. 108–110.

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Chapter 3:

The Functions of Resident Diplomats

1. Garrett Mattingly, Renaissance Diplomacy, pp. 51–65. 2. Mattingly, Renaissance Diplomacy, p. 60. 3. See Harold Nicolson, Evolution of Diplomatic Method, pp. 48–71; Hamilton and Langhorne, The Practice of Diplomacy, pp. 71–75. 4. Cardinal de Richelieu, Testament Politique, edited by Louis Andre (Paris, 1947), p. 347. 5. See Chapters 12 and 13. 6. Dembinski, Modern Law, p. 40; Alan James, ‘Diplomacy and International Society’, International Relations, Vol. 6, No. 6, 1980, p. 940. 7. Denza, Diplomatic Law, p. 30. 8. Clive Parry, editor, The Consolidated Treaty Series (Dobbs Ferry: Oceana Publications, 1969–1981), Vol. 64, 1815, p. 2. 9. See Satow’s Guide, p. 85. 10. de Callières, The Art of Diplomacy, p. 11. 11. For France see Decree of June 1, 1979, quoted in France diplomatie, External Activities, Representation, at www.diplomtie.gouv.fr/en/ ministry_158/external-activities_2053/representation_1586.html [March 14, 2008]; for Germany see Paragraph 3, section 3, sentence 2 of the German Law on the Foreign Service at Grau and SchmidtBremme, Gesetz ueber den Auswaertigen Dienst, pp. 97–99 and 105. 12. France diplomatie, External Activities, Representation, at www. diplomatie.gouv.fr/en/ministry_158/external-activities_2053/ representation_1586.html [March 14, 2008]. 13. Paul Sharp, ‘Who Needs Diplomats? The Problem of Diplomatic Representation’, in Kubalija, Modern Diplomacy, p. 59. 14. Olujimi Jolaoso, In The Shadows. Recollections of a Pioneer Diplomat (Lagos: Malthouse Press, 1991), pp. 85–86. 15. Jorge Edwards, Persona Non Grata — An Envoy in Castro’s Cuba (New York: Pomerica Press, 1973), p. 99. 16. de Callières, The Art of Diplomacy, p. 132. 17. de Callières, p. 132. 18. See for example Rana, Inside Diplomacy, pp. 80–81. 19. de Callières, p. 111. 20. Felix Gilbert, “Two British Ambassadors: Perth and Henderson”, in Gordon A. Craig and Felix Gilbert, The Diplomats 1919–1939 (Princeton, 1953), pp. 537–544; Paul Schmidt, in his capacity as interpreter, was often an eyewitness of Ambassador Henderson’s talks with

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25. 26. 27. 28. 29. 30. 31. 32.

33.

34. 35. 36.

37. 38.

39.

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German officials; he gives a more positive picture of the ambassador’s work in Berlin; see Paul Schmidt, Statist auf diplomatischer Buehne (Bonn: Athenaeum Verlag, 1953), pp. 464–473. International Herald Tribune, August 27, 2008. International Herald Tribune, August 24, 2001. BBC Monitoring European, July 10, 2007. Foreign Ministers Communiqué on Indian and Pakistani Nuclear Tests, London, June 12, 1998, at www.g7.utoronto.ca/foreign/ fm980612.htm [March 17, 2008]. See Berridge, Diplomacy, pp. 119–120. Eytan Gilboa, ‘Real-Time Diplomacy: Myth and Reality’, in Evan H. Potter, Cyber-Diplomacy, pp. 87–89. Genscher, Erinnerungen, pp. 380–381. Quoted in Thomas A Bailey, The Art of Diplomacy: The American Experience (New York: Appleton-Century-Crofts, 1968), p. 70. For the story, see Liu, Chinese Ambassadors, pp. 83–88. New York Times, April 30, 2000. Interview with Herman Eilts on March 22, 2001. Norman D. Palmer and Howard C. Perkins, International Relations: The World Community in Transition (Delhi: CBS Publishers and Distributors, third Indian edition, 1969), p. 86. Philippe Cahier and Luke T. Lee, ‘Vienna Conventions on Diplomatic and Consular Relations’, International Conciliation, January 1969, No. 571, p. 10. For the text see Ian Brownlie, Basic Documents, p. 43. See Hamilton and Langhorne, The Practice of Diplomacy, pp. 115–119. Michel Kostecki and Oliver Naray, ‘Commercial Diplomacy and International Business’, Discussion Papers in Diplomacy, No. 107 (The Hague: Netherlands Institute of International Relations ‘Clingendael’). AHK Partner weltweit, at www.ahk.de/index.php?id=partner_ weltweit&type=98 [April 3, 2008]. Evan H. Potter, ‘Canada and the New Public Diplomacy’, Discussion Papers in Diplomacy, No. 81 (The Hague: Netherlands Institute of International Relations ‘Clingendael’, 2002), p. 2. Leitsaetze des Auswaertigen Amts fuer die Auswaertige Kulturpolitik in Auswaertiges Amt, 40 Jahre Aussenpolitik der Bundesrepublik Deutschland. Eine Dokumentation (Stuttgart: Bonn Aktuell, 1970), pp. 230–233.

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40. US Department of State. Diplomacy: The US Department of State at Work, at www.state.gov/r/pa/ei/rls/dos/46732.htm [March 18, 2008]; Fulbright Commissions and Foundations, at exchanges.state.gov/ education/fulbright/commiss.htm [March 18, 2008]. 41. New York Times, April 14, 2002. 42. Frankfurter Rundschau, June 29, 2002. 43. Rana, Inside Diplomacy, pp. 161–164; India, Ministry of External Affairs: Celebrations of Indian Festivals, at meaindia.nic.in/parliaments/rs/2008/04/17rs08.htm [September 6, 2008]. 44. See the suggestions in the CSIS Report The Embassy of the Future, pp. 23–26. 45. Internet World Stats, Internet Usage Statistics as of June 30, 2008, at www.internetworldstats.com/stats.htm [November 5, 2008]. 46. Different Walter B. Wriston, ‘Bits, Bytes, and Diplomacy’, Foreign Affairs, September/October 1997, p. 175. 47. Michael Kunczik, Images of Nations and International Public Relations (Mahwah: Lawrence Erlbaum, 1996), pp. 107 and 148–151 (using the examples of Austria and the Soviet Union). 48. Kunczik, Images, pp. 102–104. 49. David Hoffman, ‘Beyond Public Diplomacy’, Foreign Affairs, March/April 2002, pp. 83–85; Michael Holtzman, “Washington’s Sour Sales Pitch”, New York Times, October 4, 2003; Peter van Ham, ‘Power, Public Diplomacy, and the Pax Americana’, in Melissen, The New Public Diplomacy, p. 60. 50. Pew Global Attitudes Project, June 27, 2007, at pewglobal.org/ reports/display.php?freportID=256 [November 23, 2007]. 51. For the history, see Hamilton and Langhorne, The Practice of Diplomacy, pp. 120–122. 52. Denza, Diplomatic Law, p. 50. 53. Vagts, Military Attaché, pp. 94–108 for the period until the mid-1960s. 54. New York Times, July 4, 1999. 55. Financial Times, August 15, 2001. 56. New York Times, February 3, 2006. 57. New York Times, May 14, 2008. 58. Carl von Clausewitz, On War, edited with an introduction by Anatol Rapoport (London: Penguin Books, 1968), p. 101. 59 Gordon A. Craig, ‘Military Diplomats’, pp. 89–93. 60. Vagts, Military Attaché, pp. 320–339.

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61. United Nations Development Program (UNDP), Human Development Report 2005 (New York 1998), pp. 219–222. 62. US State Department, ‘Focus on Diplomacy’, released by the Bureau of Public Affairs on September 19, 1996, p. 4, at www.state.gov/ www/about_state/diplomacy.htm [March 15, 2000]. 63. For the German system, see Kreditanstalt fuer Wiederaufbau, Cooperation with Developing Countries. The Procedures followed in the Financial Cooperation of the Federal Republic of Germany, 1997; German Federal Press and Information Office, Facts about Germany (Frankfurt: Societaetsverlag, 2000), pp. 237–240. 64. Norad: About Norad, at www.norad.no/default.asp?V_ITEM_ID= 1161 [March 21, 2008]. 65. See for example the web site of the Norwegian Embassy in Dar es Salaam: About the Embassy, at www.norway.go.tz/info/embassy.htm [March 21, 2008]. 66. German Federal Press and Information Bureau, Facts About Germany, pp. 233–244. 67. USAID: About USAID-This is USAID, at www.usaid.gov/about_usaid, and USAID: US Foreign Assistance Reform, at www.usaid.gov/about_ usaid/dfa/ [March 21, 2008]. 68. Desaix “Terry” Myers, ‘US Agency for International Development Mission Director’, in Dorman, Inside a US Embassy, p. 16. 69. DFID Recruitment: A Fact Sheet, at www.dfid.gov.uk/recruitement/ recruitement-guide.asp [March 21, 2008]. 70. See for example Rana, Inside Diplomacy, p. 121, for India. 71. Inter Press Service, February 25, 1994. 72. Thomas Carothers, Aiding Democracy Abroad: The Learning Curve (Washington: Carnegie Endowment for International Peace, 1999), p. 85; Stefan Mair, Internationale Demokratisierungshilfe. Erfahrungen und Aufgaben (Ebenhausen: Stiftung Wissenschaft und Politik, June 1997), passim; Eberhard Sandschneider, ‘Demokratiefoerderung von aussen’, in Internationale Politik, May 1978, No. 5, p. 11. 73. Foreign and Commonwealth Office, Autumn Performance Report 2005, p. 46, at www.fco.gov.uk/Files/Kfile/APR090306,0.pdf [December 13, 2006]. 74. See the critical remarks by Carothers, pp. 53, 276–278. 75. For details, see National Security Archive Electronic Briefing Book No. 16, Tiananmen Square, 1989: The Declassified History, at www.gwu. edu/~archiv/NSAEBB/NSAEBB16/index.html [November 10, 2006].

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76. See, for example, for the United States: The Country Reports on Human Rights Practices for 2007, at www.state.gov/g/drl/rls/ hrrpt/2007/ [March 21, 2008]; for the United Kingdom: Human Rights Annual Report 2006, at www.publications.parliament.uk/pa/cm200607/ cmselect/cmfaff/269/269.pdf [March 21, 2008]; for Germany: Auswaertiges Amt, “Siebter Bericht der Bundesregierung ueber ihre Menschenrechtspolitik in den auswaertigen Beziehungen und in anderen Politikbereichen” (www.auswaertiges-amt.de/diplo/en/Aussenpolitik/ Menschenrechte/7.MR_BerichtBuReg.pdf [November 10, 2006]. 77. Abba Eban, Diplomacy for the Next Century, p. 62.

Chapter 4:

Interfering and Unwelcome Diplomats

1. Denza, Diplomatic Law, p. 59. 2. Bertrand Badie, ‘Sovereignty and Intervention’, in Walter Carlsnaes, Helen Sjursen and Brian White, Contemporary European Foreign Policy (London: SAGE Publications, 2004), p. 155; Stephen D. Krasner, Sovereignty: Organized Hypocrisy (Princeton: Princeton University Press, 1999), pp. 22–25; Robert Jackson, ‘Sovereignty in World Politics: A Glance at the Conceptual and Historical Landscape’, Political Studies (1999), XLVII, pp. 431–456. 3. Wilhelm G. Grewe, The Epochs of International Law, translated and revised by Michael Byers (Berlin: Walter de Gruyter, 2000), p. 414, footnote 10. 4. The quote is from Bodin’s own Latin translation of the original French version: “Maiestas est summa in cives ac subditos legibusque soluta potestas” (Sovereignty is the supreme power over citizens and subjects that is not restricted by law), Jean Bodin, On Sovereignty. Four chapters from The Six Books of the Commonwealth, edited and translated by Julian H. Franklin (Cambridge: Cambridge University Press, 1992), p. 1, footnote 1. 5. von Glahn, Law Among Nations, p. 555. 6. For details see Hans J. Morgenthau, Kenneth W. Thomson, Politics Among Nations: The Struggle for Power and Peace (New York: McGraw-Hill, sixth edition, 1985), p. 331. 7. See the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, contained in the Annex to

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8. 9.

10. 11. 12.

13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27.

28. 29.

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Res.2625 (XXV) of the UN General Assembly of 24 October 1970, in Brownlie, Basic Documents, p. 44. Shaw, International Law, p. 149; see also von Glahn, Law Among Nations, pp. 104–105. For regional and bilateral instruments that guarantee non-intervention see: Lori Fisler Damrosch, ‘Politics Across Borders: Nonintervention and Nonforcible Influence over Domestic Affairs’, The American Journal of International Law, Vol. 83 (1989), pp. 6–13. Brownlie, Basic Documents, p. 41. Denza, Diplomatic Law, p. 376. Article 8 of the Convention on Rights and Duties of States of 26 December 1933, at www.yale.edu/lawweb/avalon/intdip/interam/ intam03.htm [June 27, 2008]. International Court of Justice (ICJ), Nicaragua v. United States, Merits, 1986, ICJ Reports, 107. Denza, Diplomatic Law, p. 371, takes a different view. Lee, Consular Law and Practice, p. 84, takes a different view. Satow’s Guide, pp. 133–134. Burma Related News, October 14, 2000, at www.burmalibrary.org/ TinKyi/archives/2000–10/msg00013.html [October 3, 2006]. Newzimbabwe.com, October 11, 2005, at www.newzimbabwe.com/ pages/powell38.13444.html [October 3, 2006]. See the remarks by the Malaysian Prime Minister in August 2006, BBC Monitoring Asia Pacific, August 9, 2006. Allan Gotlieb, “I’ll be with you in a minute, Mr. Ambassador” (Toronto: University of Toronto Press, 1991), pp. 66–67 and passim. Badie, ‘Sovereignty and Intervention’, in Carlsnaes, Sjursen and White, Contemporary European Foreign Policy, p. 159. New York Times, July 17, 1988. International Herald Tribune, September 20/21, 1997. The Washington Post, March 24, 1997. CNN.com, December 7, 2000. BBC Monitoring European, May 17, 2005. Globalsecurity.org, July 12, 2006, at www.globalsecurity.org/ intell/library/news/2006/intell-060712-rianovosti)1.htm [October 1, 2006); BBC Monitoring Central Asia, August 8, 2006. CNNInternational.com, at edition.cnn.com/2006/WORLD/asiapcf/ 09/12/australia.solomons.ap/indx.html [October 1, 2006]. The Ottawa Citizen, August 26, 2007.

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30. 31. 32. 33. 34. 35. 36.

37.

38. 39. 40. 41. 42. 43.

44.

45. 46.

47. 48.

New York Times, March 18, 2005. The Hindu, December 31, 2000. The Ottawa Citizen, February 5, 1990. Turkish Daily News, March 7, 1997, at www.turkishdailynews.com.tr/ archives.php?id=2236 [January 10, 2007]. The story in the text comes from: Jorge Edwards, Persona non grata. An Envoy in Castro’s Cuba. Immanuel Kant, Perpetual Peace and other Essays, translated by Ted Humphrey (Indianapolis: Hackett Publishing, 1983), p. 113. Center for American Progress, ‘A Crossroads in US-Russia Relations’, December 19, 2003, at www.americanprogress.org/issues/2003/12/ b15121.html [August 26, 2008]. David Adesnik and Michael McFaul, ‘Engaging Autocratic Allies to Promote Democracy’, The Washington Quarterly, Spring 2006, p. 18; for details see Minneapolis Star and Tribune, January 19, 1986; Boston Globe, July 11, 1986; New York Times, July 22, 1986 and October 7, 1988. Michael Schaefer, ‘Wie erzeugt man Stabilitaet auf dem Balkan?’ in Brandt and Buck, Auswaertiges Amt, pp. 97–105. New York Times, December 8, 2006. Thomas Carothers, ‘Promoting Democracy and Fighting Terror’, Foreign Affairs, January/February 2003, p. 84. Damrosch, ‘Politics across Borders’, AJIL, Vol. 83(1989), p. 34. Shaw, International Law, p. 151. The term is borrowed from Hiro Katsumata, “Why is ASEAN Diplomacy Changing? From ‘Non-interference’ to ‘Open and Frank Discussions’,” Asian Survey, March/April 2004, Vol. 44(2), p. 237. Thomas M. Franck, ‘Are Human Rights Universal?’, Foreign Affairs, January/February 2001, p. 191; Michael Ignatieff, ‘The Attack on Human Rights’, Foreign Affairs, November/December 2001, p. 102. Hurst Hannum, ‘Human Rights’, in Joyner, The United Nations and International Law, pp. 131–154. William H. Gleysteen, Massive Entanglement, Marginal Influence: Carter and Korea in Crisis (Washington DC: The Brookings Institution, 1999), pp. 171–189. Juergen Kleiner, Korea: A Century of Change (Singapore: World Scientific, 2001), pp. 185–186. William B. Edmondson, interview, ‘The View from Embassy/ Pretoria’, in David D. Newsom, The Diplomacy of Human Rights (Rowman & Littlefield, 1986), p. 150.

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49. Dorman, Inside a US Embassy, p. 19. 50. Dorman, Inside a US Embassy, pp. 90–91. 51. David D. Newsom, ‘Release in Indonesia’, in Newsom, The Diplomacy of Human Rights, pp. 101–109. 52. See the quote from Arthur Schlesinger, Jr. in Eban, Diplomacy, pp. 62–63. 53. For an overview see Office of the United Nations High Commissioner For Human Rights, Human Rights Treaty Bodies, at www2ohchr.org/ english/bodies/treaty/index.htm [August 18, 2008]. The Human Rights Committee (CCPR) is not to be confused with the UN Commission on Human Rights that was replaced by the UN Human Rights Council in 2006. 54. International Covenant on Civil and Political Rights, at www2.ohchr.org/english/law/ccpr.htm [August 18, 2008]. 55. Report of the Human Rights Committee, Volume 1, Eighty-eighth session (October 16,–November 3, 2006), Eighty-ninth session (12–30 March 2007), Ninetieth session (July 9–27, 2007), Document A/62/40 (Vol. I), p. 34, at daccessdds.un.org/UNDOC?GEN/G07/ 443/06/PDF/G0744306.pdf?OpenElement [August 18, 2008]. 56. Office of the United Nations High Commissioner for Human Rights, Human Rights Bodies — Complaints Procedures, at www2.ohchr.org/ english/bodies/petitions/index.htm#interstate [August 19, 2008]. 57. Factsheet: Work and Structure of the Human Rights Council, at www2.ohchr.org/english/bodies/hrcouncil/docs/FACTSHEET_OUT COMES_FINAL.pdf; Report to the General Assembly on the Fifth Session of the Human Rights Council, Resolution 5/1: Institutionbuilding of the United Nations Human Rights Council, at daccessdds. un.org/doc/UNDOC/GEN/G07/135/62/PDF/G0713562.pdf?OpenEl ement [August 18, 2008]. 58. News from Russia, August 6, 2004. 59. Deutsche Welle, ‘Bangladesh Angry with Donors’, March 17, 2005, at www2.dw-world.de/southasia/bangladesh/print/1.129255.1.html [October 3, 2006]. 60. See footnote 59. 61. Michael Richtsteig, Wiener Uebereinkomen, p. 24. 62. European Information Service, European Report, Justice and Home Affairs:, ‘Council agrees on new guidelines for combating drugs’, at www.findarticle.com/mOWXI/2000_July_5/63135046/p1/article.jht ml; European Commission, External Relations, The EU international

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63. 64. 65. 66.

67. 68. 69. 70. 71. 72. 73. 74. 75. 76. 77. 78. 79. 80. 81. 82. 83. 84. 85. 86. 87.

88. 89.

policy on drugs: ‘The Dublin and Mini-Dublin Groups’, at ec.europa.eu/comm/external_relations/drugs/dublin/index.htm [November 13, 2006]. The Nation (Pakistan), May 14, 1997. For the traditional view: Satow’s Guide, p. 179, and Denza, Diplomatic Law, pp. 59–60. The Vancouver Sun, January 12, 1987, South China Morning Post, August 3, 1995. Library of Congress Country Studies: ‘Hungary, Romania’, dated September 1989, at lcweb2.gov/cgi-bin/query/r?frd/csty:@field (DOCID+hu0172) [November 6, 2006]. China Daily, May 4, 2004. Timesonline, July 17, 2007. The Gazette, July 20, 2007. New York Times, March 5, 2008. The Gazette, December 28, 1996. BBC Monitoring Former Soviet Union, May 12, 2000. BBC Monitoring Former Soviet Union, January 21, 2005. The Daily Yomiuri, April 6, 2006. Associated Press, January 19, 1987. Kyodo, February 14, 2003, at findarticles.com/p/articles/mi_m0WDQ/ is_20033_Feb_18/ai_07790622/print [March 27, 2008]. New York Times, December 23, 2004. Satow’s Guide, p. 184. New York Times, May 18, 1996. New York Times, March 19, 1998. BBC Monitoring European-Political, January 21, 2000. New York Times, March 23, 2001. New York Times, November 7, 2002. International Herald Tribune, January 22, 2008; BBC Monitoring Newsfile, January 25, 2008. The Times, July 1, 1976. New York Times, July 14, 1967; see also New York Times, July 5, 6 and 8, 1967. See the statement by the Iraqi Foreign Minister Hoshyar Zebari with regard to the former practice of Iraqi embassies, New York Times, September 7, 2003. Satow’s Guide, p. 186. Denza, Diplomatic Law, p. 376.

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90. Decision of the Arbitral Tribunal in the LAFICO — Republic of Burundi case, 4 March 1991, in International Law Reports 1996, p. 313.

Chapter 5:

Diplomatic Relations

1. Shaw, International Law, p. 525; Ipsen, Voelkerrecht, p. 480; Dembinski, Modern Law, p. 29; see Denza, Diplomatic Law, pp. 22–23, for the history of the negotiations of the CDR. 2. The text is available at the Mount Holyoke College Web site, www.mtholyoke.edu/acad/intrel/interwar/rapallo.htm [March 30, 2008]. 3. Auswaertiges Amt, Die Auswaertige Politik der Bundesrepublik Deutschland (Koeln: Verlag Wissenschaft und Politik, 1972), p. 307 (translation by the author). 4. New York Times, January 11, 1984. 5. Xiaohong Liu, Chinese Ambassadors, p. 79. 6. The text is available at www.iaea.org/Publications/Documents/Infcirc/ Others/infcirc457.pdf [March 30, 2008]. 7. US Department of State: Joint Statement of the Six-Party Talks Beijing, September 19, 2005, at www.state.gov/r/pa/prs/ps/53490. htm [February 25, 2007]. 8. See Ministry of Foreign Affairs and Cooperation of Belize, Belizian Embassies and Consulates, at www.mfa.gov.bz/representations/bze_ embassies.php [March 31, 2008]. 9. See the Web site of the US embassy in Barbados: About the Embassy, at barbados.usembassy.gov/bio.html [April 8, 2008]. 10. See the Webs site of the US embassy in Port Moresby, at portmoresby.usembassy.gov [April 8, 2008]. 11. Dembinski, Modern Law, p. 77. 12. Lee Khoon Choy, Diplomacy of a Tiny State (Singapore: World Scientific, second edition, 1995), p. 7. 13. US Department of State, Background Note: Grenada, at www.state. gov/r/pa/ei/bgn/2335.htm [April 8, 2008]. 14. Richtsteig, Wiener Uebereinkommen, p. 26. 15. CSIS Report The Embassy of the Future, pp. 44–45. 16. Virtual Embassy of the United States, Port Vila-Vanuatu, at www.usvpp-vanatu.org [April 8, 2008].

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17. Ali Naseer Mohamed, ‘The Diplomacy of Micro-states’, Discussion Papers in Diplomacy, No. 78 (The Hague: Netherlands Institute of International Relations ‘Clingendael’, 2002), p. 23. 18. Organization of Eastern Caribbean States, Overseas Missions, at www.oecs.org/contact_sub.html [March 31, 2008]. 19. Auswaertiges Amt: Die Aussenminister Steinmeier und Douste-Blazy vereinbaren engere Kooperation, at www.auswaertiges-amt.de/diplo/ de/Infoservice/Presse/Meldungen/2006/061012-DtFrMinisterrat [April 1, 2008]. 20. 2 FAM 133. 21. See for example the Web site of the APP Lyon, at france.usembassy. gov/lyon.html [November 5, 2008]. 22. 2FAM 131. 23. Satow’s Guide, p. 67; Denza, Diplomatic Law, pp. 26–28. 24. Iceland, Ministry of Foreign Affairs, Presidential Decree regarding Embassies, Permanent Missions to International Organizations and Consular Offices, dated March 28, 2007, at www.mfa.is/diplomaticmissions/icelandic-missions/nr/1952 [June 4, 2008]. 25. Ministry of Foreign Affairs of the Maldives: Ministry Overseas, at www.foreign.gov.mv/v2/menu.php?menu=2&submenu=Ministry%20 Overseas; Foreign Relations: Countries with which the Republic of the Maldives has Diplomatic Relations, at www.foreign.gov.mv/v2/menu. php?menu=3&submenu=Bilateral Relations [April 2, 2008]. 26. von Glahn, Law Among Nations, pp. 73–75; Ipsen, Voelkerrecht, pp. 236–239; Satow’s Guide, p. 70; M. J. Peterson, Recognition of Governments. Legal Doctrine and State Practice 1815–1995 (Houndmills: Palgrave Macmillan, 1997), p. 15. 27. Text at www.oas.org/juridico/English/charter.html [April 2, 2008]. 28. The Economist, April 14–20, 2001, p. 42. 29. von Glahn, pp. 75 and 76; Shaw, p. 304; Ipsen, Voelkerrecht, pp. 237–239; Peterson, Recognition, pp. 36–39. 30. Peterson, Recognition, pp. 158 and 182. 31. von Glahn, Law Among Nations, pp. 76 and 77. 32. For this and the following see Peterson, Recognition, pp. 178–182. 33. Quoted in Peterson, p. 180. 34. The British Yearbook of International Law 1980 (Oxford: Clarendon Press, 1992), p. 367. 35. John A. Boyd, Digest of United States Practice in International Law 1977, p. 20.

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36. Peterson, p. 181 argues that the new practice is similar to tacit forms of recognition. 37. Denza, Diplomatic Law, p. 25. 38. von Glahn, Law Among Nations, p. 79. 39. English Translation of the Code of Canon Law, at www.vatican.va/ archiveee/ENG1104/_INDEX.HTM [April 2, 2008]. 40. Foreign and Commonwealth Office, Country Profile: Vatican City, at www.fco.gov.uk/en/about-the-fco/country-profiles/europa/holy-see? profile=all [April 2, 2008]. 41. The Gazette (Montreal), September 22, 1992. 42. Lecture by Archbishop Jean-Louis Tauran, The Presence of the Holy See in the International Organizations, at www.vatican.va/ roman_curia/secretariat_state/documents/rc_seg-st_doc_20020422_ tauran_en.html [April 2, 2008]. Bilateral and Multilateral Relations of the Holy See, at www.vatican.va/roman_curia/secretariat_state/ documents/re-st_20010123_holy-see-relations_en.html [April 2, 2008]. 43. Shaw, International Law, p. 172; Satow’s Guide, p. 68; Jelka MayrSinger, ‘Unheilige Allianz oder segensreiche Partnerschaft. Der Heilige Stuhl und die Vereinten Nationen’, in Vereinte Nationen, No. 6, December 2000, p. 193. 44. English translation of the Lateran Pacts of 1929 at www.aloha. net/~mikesch/treaty.htm [April 2, 2008]. 45. Newsweek, April 16, 2001, pp. 26–33; New York Times, 2 to 12 April 2001. 46. For details see New York Times, April 14, 2001. 47. For the full text see: New York Times, April 12, 1998. 48. Don Oberdorfer, The Two Koreas. A Contemporary History (Indianapolis: Basic Books, 1997), pp. 51–55. 49. New York Times, July 24, 2003. 50. BBC News-South Asia, February 14, 2005. 51. Telegraph-Herald (Dubuque, Iowa), November 3, 2007. 52. Xinhua News Agency, January 18, 2008. 53. BBC Monitoring Newsfile, February 18, 2008. 54. Denza, Diplomatic Law, p. 395. 55. BBC Summary of World Broadcasts, August 24, 1998. 56. Denza, Diplomatic Law, p 395. 57. ITAR-TASS News Wire, October 12, 1998. 58. New York Times, April 24, 2008. 59. Reuters, January 3, 2005.

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60. Associated Press, January 31, 2005. 61. Hans-Peter Schwarz (editor), Handbuch der Deutschen Aussenpolitik (Muenchen: Piper, 1975), pp. 321 and 322. 62. For the relations of the United States see Plischke, The US Department of State, pp. 499–500. 63. Charleston Daily Mail, April 14, 2006. 64. BBC Monitoring Newsfile, November 24, 2006. 65. Satow’s Guide, p. 188. 66. Denza, Diplomatic Law, p. 398. 67. von Glahn, Law Among Nations, pp. 81 and 84; Shaw, International Law, pp. 313–315. 68. Françoise Mengin, ‘The Substitution of Conventional Diplomatic Relations: The Case of Taiwan’, in Melissen, Innovation, pp. 231–246. 69. Ministry of Foreign Affairs of Japan: Taiwan, at www.mofa.go.jp/ region/asia-paci/taiwan/index.html [April 2, 2008]. 70. von Glahn, Law Among Nations, p. 82; see also Section 6 of the Taiwan Relations Act of 1979, text at American Institute in Taiwan, www.ait. org.tw/en/about_ait/tra [April 2, 2008]. 71. TECRO, at www.taiwanembassy.org/us/ct.asp?xItem=11422&CtNode= 2326&mp=12&xpl= [April 2, 2008]. 72. Mengin, ‘Substitution’, in Melissen, Innovation, p. 235. 73. Korea Annual 1984, p. 384. 74. Richtsteig, Wiener Uebereinkommen, p. 104. 75. Swiss Federal Department of Foreign Affairs: Protective power mandates, at www.eda.admin.ch/eda/en/home/topics/peasec/peac/ confre/goch/protpw.html [April 2, 2008]; Raymond Probst, ‘The Good Offices of Switzerland’, in David D. Newsom, editor, Diplomacy under a Foreign Flag. When Nations Break Relations (London and New York: Macmillan, 1990), p. 25. 76. Vaughan Lowe, ‘Diplomatic Law: Protecting Powers’, International and Comparative Law Quarterly, Vol. 39 (April 1990), pp. 471–474. 77. Lowe, ‘Protecting Powers’, International and Comparative Law Quarterly, Vol. 39 (April 1990), pp. 472–474. 78. New York Times, March 14, 2001. 79. The story comes from Simon Kear, ‘Diplomatic Innovation: Nasser and the Origins of the Interests Section’, Diplomacy and Statecraft, Vol. 12, No. 3 (September 2001), pp. 68–71. 80. Kear, ‘Diplomatic Innovation’, Diplomacy and Statecraft, Vol. 12, No. 3 (September 2001), pp. 68–71.

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81. Kear, ‘Diplomatic Innovation’, Diplomacy and Statecraft, Vol. 12, No. 3 (September 2001), p. 71. 82. For the text of the note see Kear, ‘Diplomatic Innovation’, Diplomacy and Statecraft, Vol. 12, No. 3 (September 2001), pp. 82 and 83. 83. Satow’s Guide, p. 189. 84. Wayne S. Smith, ‘The Protecting Power and the U.S. Interests Section in Cuba’, in Newsom, Diplomacy under a Foreign Flag, pp. 103 and 104. 85. Probst, ‘The Good Offices of Switzerland’, in Newson, Diplomacy under a Foreign Flag, p. 27. 86. Smith, ‘The Protecting Power’, in Newsom, Diplomacy under a Foreign Flag, p. 104. 87. USINT at http://havana.usinterestsection.gov/history.html [April 2, 2008]. 88. Text in Lowe, ‘Protecting Powers’, International and Comparative Law Quarterly, Vol. 39 (April 1990), pp. 472–474. 89. Richtsteig, Wiener Uebereinkommen, p. 105. 90. Peter Schaller, Nordkorea. Ein Land im Banne der Kims (Boeblingen, 1994), pp. 5–16. 91. Korea Herald, March 3, 2001.

Chapter 6:

The Members of Diplomatic Missions

New York Times, February 9, 2002. Genscher, Erinnerungen, pp. 287 and 288. Los Angeles Times, June 3, 1989. Central News Agency, July 7, 1989, at http://web.lexis-nexis.com/ universe/docum…lzV&_md5=e90038b542c5ce8b7ce87402c8d0/8cb [May 3, 2001]. 5. Amnesty International: Public Statement, August 14, 2001, Israel/ Denmark: Amnesty International calls on Denmark to fulfill its obligations under the UN Convention against Torture, at www.amnesty.org/enlibrary/ asset/MDE15/074/2001/en/dom-MDE150742001en.html [March 8, 2008]. 6. See the outstanding example of the letter by Czar Alexander III addressed to Queen Victoria on February 8, 1884, accrediting Baron Arthur Mohrenheim as new Russian ambassador, in Satow’s Guide, pp. 57 and 58. 7. For the practice in Washington, see McCaffree, Innis and Sand, Protocoll, pp. 336-338; For the practice in London, see Raymond Seitz, Over Here (London: Weidenfeld & Nicolson, 1998), pp. 72–78. 1. 2. 3. 4.

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8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18.

19.

20.

21. 22. 23.

24.

25. 26. 27.

International Herald Tribune, June 29, 2001. 2FAM 113.2. New York Times, February 21, 2002. Dembinski, Modern Law, pp. 130 and 131. Denza, Diplomatic Law, p. 50. Richtsteig, Wiener Uebereinkommen, p. 30. Denza, Diplomatic Law, p. 80. Washington Post, October 23, 1986. Richtsteig, Wiener Uebereinkommen, p. 29. Denza, Diplomatic Law, 54–55; Richtsteig, Wiener Uebereinkommen, pp. 28–29. Jonathan Brown, ‘Diplomatic Immunity: State Practice under the Vienna Convention on Diplomatic Relations’, International and Comparative Law Quarterly, Vol. 37, January 1988, pp. 56–59. See the Security Council Resolution S/RES 664 (1990) of August 18, 1990, at daccessdds.un.org/doc/RESOLUTION/GEN/NRO/575/14/ IMG/NR057514.pdf?OpenElement [August 27, 2008]. Circular Note by the German Federal Foreign Office of August 24, 1990, in Auswaertiges Amt, Deutsche Aussenpolitik 1990/91. Eine Dokumentation (Muenchen: Bonn Aktuell, 1991), pp. 147–148; for the experience of GDR ambassadors in 1990 see Birgit Malchow, editor, Der Letzte macht das Licht aus. Wie DDR Diplomaten das Jahr 1990 im Ausland erlebten (Berlin: edition ost, 1999]. Satow’s Guide, p. 120. McClanahan, Diplomatic Immunity, p. XVI. Dembinski, Modern Law, pp. 153–154; Richard Langhorne, ‘The regulation of diplomatic practice: the beginnings to the Vienna Convention on Diplomatic Relations, 1961’, Review of International Studies, Vol. 18, No. 1 (January 1992), pp. 9–10. ABC News, January 1, 2008: List of Diplomats killed Abroad, at abcnews.go.com/International/witreStory?id=4072537&page=1 [April 9, 2008]. New York Times, December 30, 2003. New York Times, November 9, 2002. Case concerning United States Diplomatic and Consular Staff in Tehran, Order, ICJ Reports 1979, para. 38, referred to in United States Diplomatic and Consular Staff in Tehran, Judgment, ICJ Reports 1980, para. 91, also at www.icj-cij.org/docket/files/64/6291.pdf [September 28, 2008].

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28. For the facts see the Judgment of the ICJ mentioned in footnote 27, para. 17–27; McClanahan, Diplomatic Immunity, pp. 8–11. 29. New York Times, January 19 and 21, 1981. 30. United States Diplomatic and Consular Staff in Tehran, Judgment, ICJ Reports 1980, para. 77. 31. Angela Cronenberg-Vollmer, ‘Als Geisel in Stockholm: April 24, 1975’, in Brandt and Buck, Auf Posten, pp. 92–94. 32. The Toronto Star, November 20, 1995; The Daily Telegraph, November 20, 1995; Manchester Guardian Weekly, November 26, 1995. 33. New York Times, 18, 19, 20 and 21 December 1996, February 15, 1997, April 23, 1997; UPI, April 22, 1997; The Guardian (London), April 27, 1997. 34. International Herald Tribune, September 10 and 11/12, 2004. 35. McClanahan, Diplomatic Immunity, pp. 5 –8. 36. United States Diplomatic and Consular Staff in Tehran, Judgment, ICJ Reports 1980, para. 86. 37. Denza, Diplomatic Law, p. 219. 38. New York Times, March 16 and 17, 2002. 39. Denza, Diplomatic Law, pp. 70–71. 40. New York Times, April 1, 3, and 7, 1970; Keesing’s Contemporary Archives, April 4–11, 1970. 41. Satow’s Guide, p. 122. 42. B. Sen, A Diplomat’s Handbook of International Law and Practice (The Hague: Nijhoff Publishers, second edition, 1979), p. 90. 43. General Assembly: Consideration of effective measures to enhance the protection, security and safety of diplomatic and consular missions and representatives, A/RES/61/31 of December 4, 2006, at daccessdds.un.org/doc/UNDOC/GEN/N06/496/29/PDF/N0649629.pdf ? OpenElement [July 29, 2008]. 44. Sen, Handbook, pp. 106–108; Dembinski, Modern Law, p. 204. 45. Richtsteig, Wiener Uebereinkommen, pp. 70 and 71. 46. See Denza, Diplomatic Law, pp. 243–245. 47. See Article 27, para. 3, of the Law on the Foreign Service, with comment by Schmidt-Bremme and Grau, Gesetz ueber den Auswaertigen Dienst, pp. 442. 48. Richtsteig, Wiener Uebereinkommen, p. 72; Sen, Handbook, pp. 135–140 argues that there is no uniform method. 49. Satow’s Guide, p. 128; Richtsteig,Wiener Uebereinkommen, p. 75.

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50. Dembinski, Modern Law, pp. 215 and 216. 51. BBC News, May 14, 2006, at newsvote.bbc.co.uk/mpapps/pagetools/ print/news.bbc.co.uk/1/hi/england/london/4770293.stm [April 11, 2008]. 52. Dembinski, Modern Law, p. 218. 53. For the history of the negotiations see Denza, Diplomatic Law, pp. 314 and 315. 54. Denza, Diplomatic Law, p. 330. 55. Liu, Chinese Ambassadors, p. 165. 56. For details: Denza, Diplomatic Law, pp. 322–325. 57. Brown, ‘Diplomatic Immunity’, International and Comparative Law Quarterly, Vol. 37, January 1988, pp. 64–66. 58. See for example Article 17 and 19–24 of the German Law on the Foreign Service in Grau and Schmidt-Bremme, Gesetz ueber den Auswaertigen Dienst, pp. 348–413. 59. US Department of State, Bureau of Human resources: Education and Youth, at www.state.gov/m/dghr/flo/c1958.htm [April 12, 2008]. 60. Annabel Hendry, ‘From Parallel to Dual Careers: Diplomatic Spouses in the European Context’, in Kurbalija, Modern Diplomacy (internet edition). 61. See for example the Agreement between Spain and Canada relating to the free exercise of remunerative activities by dependents of employees of diplomatic missions, consular posts or permanent missions to international organizations of September 27, 1990, at untreaty.un.org/unts/60001_120000/27/7/0002305.pdf [July 17, 2008]. 62. UN General Assembly, Report of the Joint Inspection Unit entitled “Review of the Headquarters Agreements Concluded by the Organizations of the United Nations System: Human Resources Issues Affecting Staff, A/59/526/Add.1, at ftp.fao.org/docrep/fao/meeting/009/J4704e/j4704e02.pdf [August 33, 2008].

Chapter 7:

Diplomatic Missions: Their Premises

1. History of Brasilia, at www.infobrasilia.com.br/history.htm [April 18, 2008]. 2. History of Islamabad, at www.visitislamabad.net/islamabad/files/filedetail.asp?var=history-of-islamabad [April 18, 2008]. 3. African executive, History of Abuja, at www.africanexecutive.commmm/modules/magazine/articles.php?article=2145 [April 18, 2008].

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4. Astana-the new capital of Kazakhstan, at kazakhembus.com/astana. html [August 28, 2008]. 5. International Herald Tribune, July 4, 2008. 6. Jane C. Loeffler, The Architecture of Diplomacy. Building America’s Embassies (New York: Princeton Architectural Press, 1998]. 7. The Guardian, July 24, 2000. 8. Associated Press, March 28, 1991. 9. International Herald Tribune, August 22, 2002. 10. United States Diplomatic and Consular Staff in Tehran, Judgment, ICJ Reports 1980, para. 74, at www.icj-cij.org/docket/files/64/6291. pdf [August 28, 2008]. 11. Financial Times (London), December 22, 1989; Washington Post, December 31, 1989. 12. New York Times, December 31, 1989. 13. See the decision of the UN Security Council: S/RES/662 of August 9, 1990 and S/RES/664, August 18, 1990, at daccessdds.un.org/doc/ RESOLUTION/GEN/NRO/575/12/IMG/NRO57512.pdf ?Open Element and daccessdds.un.org/RESOLUTION/GEN/NRO/575/14/ IMG/NRO57514.pdf?OpenElement [August 27, 2008]. 14. United States Diplomatic and Consular Staff in Tehran, Judgment, ICJ Reports 1980, para. 77, same source as in footnote 10. 15. UN Security Council Resolution S/RES/667, December 16, 1990, at daccessdds.un.org/doc/RESOLUTION/GEN/NRO/575/17/IMG/NR O57517.pdf?OpenElement [August 27, 2008]. 16. Denza, Diplomatic Law, p. 126; Richtsteig, Wiener Uebereinkommen, pp. 46–47; see also Dembinski, Modern Law, p. 194. 17. McClanahan, Diplomatic Immunity, p. 7. 18. Newsweek, April 20, 1987; New York Times, May 27, 1983. 19. Los Angeles Times, June 8, 1987. 20. New York Times, April 5 and 22, 1987 and October 28, 1988; Los Angeles Times, November 1, 1988. 21. Associated Press, January 27, 1989. 22. Associated Press, December 16, 1991. 23. New York Times, May 4, 1987. 24. Associated Press, June 4, 2000. 25. Dobrynin, In Confidence, p. 357. 26. New York Times, March 4 and 6, 2001; The Toronto Star, March 17, 2001.

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27. Seattle Post — Intelligencer, May 29, 1995. 28. GlobalSecurity.org, January 22, 2004, at www.globalsecurity.org/ intell/library/news/2004/intell-0401122-irna01.htm [April 20, 2008]. 29. BBC Monitoring Asia Pacific, July 14, 2004. 30. New York Times, March 4, 2001. 31. Dobrynin, In Confidence, pp. 68–74. 32. See for example USA Today, April 10, 1987. 33. Judgement of the German Federal Constitutional Court (Bundesverfassungsgericht), October 30, 1962, at E. Lauterpacht, editor, International Law Reports (ILR), Vol. 38, 1969, p. 167. 34. Dembinski, Modern Law, p. 194. 35. Denza, Diplomatic Law, p. 126; Richtsteig, Wiener Uebereinkommen, p. 98; Dembinski, Modern Law, p. 86, has a different view. 36. The Jakarta Post, September 15 and 29, 2001; Japan Economic Viewswire, September 21, 2001; New York Times, September 28, 2001, and October 10, 2001. 37. New York Times, September 28, 2001. 38. New York Times, August, 8, 9, 10, 24, November 5, and December 17, 1998. 39. Letter dated August 20, 1998 from the Permanent Representative of the United States of America to the United Nations addressed to the President of the Security Council, Security Council Document S/1998/780, at www.jb.lawuu.nl/jb-vol/US-SC.pdf [August 28, 2008]. 40. New York Times, October 19, 2001. 41. New York Times, November 2, 2001. 42. Asian Wall Street Journal, September 13, 2006. 43. Birmingham Mail, January 12, 2007. 44. BBC Monitoring Asia Pacific, March 24, 2008. 45. International Herald Tribune, June 3, 2008. 46. Richtsteig, Wiener Uebereinkommen, p. 49; Denza, Diplomatic Law, p. 139, has a different view. 47. United States Diplomatic and Consular Staff in Tehran, Judgment, ICJ Reports 1980, para. 90 and 95, same source as in footnote 9. 48. Denza, Diplomatic Law, pp. 139 and 140; Satow’s Guide, p. 111; Richtsteig, Wiener Uebereinkommen, p. 49. 49. Finzer v. Barry, Federal Reporter, Vol. 798F. 2d, 1986 pp. 1462 and 1477.

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50. US Department of State: The Inman Report. Report of the Secretary of State’s Advisory Panel on Overseas Security of 1985, at www.fas. org/irp/threat/inman/ [April 20, 2008]. 51. For details see the CSIS Report The Embassy of the Future, pp. 33–34. 52. New York Times, September 9, 1998. 53. New York Times, August 13, 1998. 54. The Ottawa Citizen, September 8, 1998. 55. Michael J. Lewis, ‘Glass Walls to Bunkers: The New Look of US Embassies’, New York Times, July 27, 2003. 56. International Herald Tribune, December 22, 2003. 57. Bátora, Foreign Ministries and the Information Revolution, p. 104. 58. United States Diplomatic and Consular Staff in Tehran, Judgment, ICJ Reports 1980, para. 24 and 7.

Chapter 8:

Diplomatic Asylum

1. Von Glahn, Law Among Nations, p. 245; C. Neale Ronning, Diplomatic Asylum. Legal Norms and Political Reality in Latin American Relations (The Hague: M. Nijhoff, 1965), p. 7; S. Prakash Sinha, Asylum and International Law (The Hague: Kluwer, 1971), p. 51; Angela M. Rositto, ‘Diplomatic Asylum in the United States and Latin America: A Comparative Analysis, Brooklyn Journal of International Law, Vol. XIII, No. 1, 1987, p. 1; Atle Grahl-Madsen, Territorial Asylum (London: Oceana Publications, 1980), pp. 1–2. 2. As an exception, see the “Caracas Incident” (Rositto, ‘Diplomatic Asylum’, Brooklyn Journal of International Law, Vol. XIII, No. 1, 1987, pp. 130–131): In 1961, Venezuelan police entered the premises of the Peruvian embassy in Caracas in hot pursuit of military prisoners who had tried to take shelter there. 3. Von Glahn, Law Among Nations, p. 240; Ronning, Diplomatic Asylum, pp. 50–51; Sinha, Asylum, pp. 51 and 231; Dembinski, Modern Law, p. 248; Rositto, Vol. Xiii, No. 1, 1987, p. 111. 4. 2 FAM 228. 5. Marian L. Nash, ‘Contemporary Practice of the United States Relating to International Law’, American Journal of International Law, Vol. 75 (1981), p. 142. 6. Richtsteig, Wiener Uebereinkommen, p. 184. 7. France: Condition d’octroi de l’asile diplomatique (1er Septembre 1970), Revue Générale de Droit International Public, 1971, pp. 849–850.

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8. Susanne Riveles, ‘Diplomatic Asylum as a Human Right: The Case of the Durban Six’, Human Rights Quarterly, Vol. 11, No. 1 (1989), pp. 140–142. 9. Quoted in Dembinski, Modern Law, p. 250. 10. Financial Times (London), June 25, 1993. 11. US Embassy in London, Political Asylum and the United States Refugee Program, at www.usembassy.org.UK/cons_web/ins/refuge. htm [April 21, 2008]. 12. This story comes from Riveles, ‘Diplomatic Asylum’, Human Rights Quarterly, Vol. 11, No. 1 (1989), pp. 139–141. 13. New York Times, April 1, 2002; BBC Monitoring Newsfile, April 3, 4 and 10, 2002. 14. New York Times, March 2, 2002. 15. Kevin Lynch, ‘Down and Out in the American Embassy’, National Review, August 31, 1979; Rositto, Vol. XIII, No. 1, 1987, pp. 120–124. 16. Dobrynin, In Confidence, pp. 518 and 534. 17. The Times (London), October 25, 2004. 18. Text of the Convention for the Protection of Human Rights and Fundamental Freedoms, at the Web site of the Council of Europe: conventions.coe.int/treaty/en/Treaties/Html/005.htm [April 22, 2008]. 19. New York Times, May 9, 10, and 23, 2002. 20. The Daily Yomiuri, May 12, 2002; Asahi News Service, May 18, 2002; The Japan Times, July 5, 2002. 21. Texts in: Carnegie Endowment for International Peace, The International Conferences of American States 1889–1928 (New York, 931), pp. 434–435 and First Supplement 1933–1940 (Washington, 1940), pp. 116–117. 22. For Article 17 of the 1889 Treaty see Ronning, Diplomatic Asylum, p. 54; for the text of the Treaty of 1939 see Grahl-Madsen, Territorial Asylum, pp. 125–127. 23. Sinha, Asylum, pp. 242–243; Rositto, ‘Diplomatic Asylum’, Brooklyn Journal of International Law, Vol. 13, No. 1, 1987, p. 129 with note 146. 24. Text on the web site of the OAS:www.oas.org/juridico/english/treaties/ A-46.htm [April 21, 2008]. 25. Convention on Diplomatic Asylum. General Information of the Treaty, at www.oas.org/juridico/english/Sigs/a-46.html [April 21, 2008]. 26. Colombian-Peruvian Asylum Case, Judgment of November 20, 1950: ICJ Reports 1950, p. 274, also at www.icj-cij.org/docket/files/7/ 1849.pdf.

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27. Keesings’s Contemporary Archives 1980, p. 30205. 28. Haya de la Torre Case, Judgment of June 13, 1951: I.C.J. Reports 1951, p. 12, also at www.icj-cij.org/docket/files/14/1937.pdf. 29. Columbian-Peruvian Asylum case, Judgment of November 20, 1950: ICJ Reports 1950, p. 227. 30. Keesing’s Contemporary Archives 1973, p. 26153; 1974, pp. 26442, 26443, 26659. 31. The Commercial Appeal (Memphis, Tenn.), March 15, 2003. 32. BBC Monitoring Newsfile, April 21, 2005. 33. This story comes from Keesing’s Contemporary Archives, 1980, pp. 30474–30475, Rositto, ‘Diplomatic Asylum’, Brooklyn Journal of International Law, Vol. XIII, No. 1, 1987, pp. 131–134. 34. Keesing’s Contemporary Archives 1980, p. 30474. 35. Rositto, ‘Diplomatic Asylum’, Brooklyn Journal of International Law, Vol. XIII, No. 1, 1987, p. 134 and footnote 184. 36. Keesing’s Contemporary Archives 1990 p. 37618; New York Times, July 11, 1990. 37. 2 FAM 228; Richtsteig, Wiener Uebereinkommen, p. 184. 38. New York Times, June 12, 1989 and June 26, 1990. 39. Columbian-Peruvian Asylum Case, Judgment of November 20, 1951: ICJ Reports, p. 286. 40. Keesing’s Archiv der Gegenwart 1971, pp. 16578 and 16579; Rositto, ‘Diplomatic Asylum’, Brooklyn Journal of International Law, Vol. XIII, No. 1, 1987, pp. 118–120. 41. Columbian-Peruvian Asylum Case, Judgment of 20 November 1950: ICJ. Reports 1950, p. 275.

Chapter 9: 1. 2. 3. 4. 5. 6. 7.

An Embassy’s Lifelines

Financial Times, April 29, 1987. The Daily Telegraph, March 10, 2000. Dembinski, Modern Law, p. 179. Denza, Diplomatic Law, pp. 189 and 190. The Daily Telegraph, November 18, 1989. The Daily Telegraph, October 30, 2003. See Draft Articles and Draft Optional Protocols One and Two on the Status of the Diplomatic Courier and the Diplomatic Bag not accompanied by Diplomatic Courier, UN General Assembly Doc. A/44/475,

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8. 9.

10. 11. 12. 13.

14. 15.

16.

17. 18.

19. 20.

at untreaty.un.org/ilc/texts/instruments/English/draft%20articles/9_ 5_1989.pdf [August 28, 2008]. The Times (London), November 18, 19 and 20, 1964. Adeoye Akinsanya, ‘The Dikko Affair and Anglo-Nigerian Relations’, International and Comparative Law Quarterly 1985, Vol. 34, pp. 602–609. Richtsteig, Wiener Uebereinkommen, p. 63, has a different view. Rangarajan, ‘Diplomacy, States and Secrecy’, Diplomacy and Statecraft, Vol. 9, No. 3, 1998, pp. 18–49. Wilson Dizard, Jr., Digital Diplomacy. US Foreign Policy in the Information Age (Westport and London: Praeger, 2001), p. 74. For the United States see Dizard, Jr., Digital Diplomacy, pp. 100–109 and 171–173; for Germany see Grau and Schmidt-Bremme, Gesetz ueber den Auswaertigen Dienst, pp. 149 and 150; for France see C. Paulette Enjalrann and Philippe Husson, ‘France, The Ministry of Foreign Affairs: “something new, but which is the legitimate continuation of our past …”’. in Hocking, Foreign Ministries, p. 67 with footnote 20. Denza, Diplomatic Law, pp. 175–177. General Administration of Customs of the Peoples Republic of China Customs Measures for the Declaration of Articles Imported and Exported by Diplomatic Missions and Their Members in China, December 1, 1986, at www.novexcn.com/custom_meas_diplomat_ impor.html [April 27, 2008]. US Department of State, Dispatch, March 18, 1991: Memorandum of Understanding between The United States and Albania, March 15, 1991, at http://web.lexis-nexis.com/universe/docum…lzV&_md59d48c7f54eab3a0aeef2793191bacf8b [October 23, 2001]. See Stewart Eldon, From Quill Pen to Satellite. Foreign Ministries in the Information Age (London: Royal Institute of International Affairs, 1994). For an early example see the IT system of the Norwegian Ministry of Foreign Affairs, described by Bátora and Neumann, ‘Cautious Surfers’, in Diplomacy and Statecraft, Vol. 13, No. 3 (September 2002), pp. 33–35. For details see Bátora, Foreign Ministries and the Information Revolution, pp. 95–97. Foreign and Commonwealth Office, e-diplomacy: the FCO Information and Communication Technology Strategy, January 2004, at www.fco.gov.uk/en/newsroom/latest-news/?view=News&id=1545660 [April 17, 2008].

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21. US Department of State: Fiscal Years 2006–2010: IT Strategic Plan Goals Paper, atwww.state.gov/m/irm/rls/92497.htm [April 24, 2008]. 22. International Herald Tribune, August 4, 2008. 23. US State Department: Office of eDiplomacy, at www.state.gov/m/ irm/c23839.htm [April 24, 2008]. 24. Eldon, From Quill Pen, p. 22. 25. US Strategic Plan Goals Paper, quoted in footnote 21.

Chapter 10:

Special Missions

1. David D. Dunn, ‘What is Summitry?’ in David D. Dunn, Diplomacy at the Highest Level. The Evolution of International Summitry (Houndmills: Macmillan, 1996), pp. 15–20. 2. Plischke, U.S. Department of State, p. 407. 3. Henry Kissinger, Diplomacy (New York: Simon and Schuster, 1994), pp. 703–732. 4. Foreign Ministry of the People’s Republic of China: Nixon’s China’s Visit and Sino–US Joint Communiqué, at www.fmprc.gov.cn/eng/ ziliao/3602/3604/t8006.htm [April 12, 2008]. 5. Text of the Shanghai Communiqué of February 27, 1972, at CNN Perspective Series, at edition.cnn.com/SPECIALS/cold.war/episodes/ 15documents/us.china/ [August 29, 2008]. 6. Jan Melissen, ‘Summit Diplomacy Coming of Age’, Discussion Papers in Diplomacy, No. 86 (The Hague: Netherlands Institute of International Relations ‘Clingendael’, 2003), pp. 8–14. 7. For the statistics see Plischke, U.S. Department of State, pp. 409–419. 8. Plischke, U.S. Department of State, p. 405. 9. David H. Dunn, ‘How Useful is Summitry?’ in Dunn, Diplomacy at the Highest Level, p. 252. 10. The Treaty of Elysée of January 22, 1963, at www.sovereignty.org.uk/ features/eucon/elysee.html [July 25, 2008]. 11. Satow’s Guide, pp. 156–160; Dembinski, Modern Law, pp. 55–61; Shaw, International Law, pp. 538–539. 12. Multilateral treaties deposited with the Secretary-General at: untreaty. un.org/ENGLISH/bible/englishinternetbible/partl/chapterIII/treaty34. asp [April 14, 2008]. 13. See Hajnal, The G8 System, pp. 2–5, on the many characterizations of the G8; he calls it an “unorthodox international institution”. 14. See the document, mentioned in footnote 12.

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15. Perez, ‘The Privileges and Immunities’, p. 18, mentions that heads of state or government and ministers of foreign governments are granted inviolability, juridical immunity, and immunity from giving evidence in Switzerland. 16. For the relevant decisions of German law courts see 80 International Law Reports, pp. 388–424; Shaw, International Law, pp. 538–539. 17. Satow’s Guide, p. 157. 18. Embassy of Greece, Washington, DC: Visit of Greek Foreign Minister Mrs. Dora Bakoyannis in Washington, DC (September, 25–27, 2006), at http://64.237.101.224/Embassy/Content/en/ArticlePrint.asp?office= 1&folder=1&article=18617m [April 15, 2008].

Chapter 11:

Inside an Embassy

1. Department of State: HR Fact Sheet as of September 30, 2007, at www.state.gov/m/dghr/c24894.htm [May 5, 2008]; France Diplomatie: Embassies and Consulates, at www.diplomatie.gouv.fr/en/ministry_ 158/embassies-and-consulates_2052/index.html [May 5, 2008]; Federal Foreign Office: German Missions Abroad, at www.auswaertiges-amt. de/diplo/en/Aamt/AuswDienst/Aven.html [May 5, 2008]. 2. Ministry of Foreign Affairs of Iceland: Presidential Decree regarding Embassies, Permanent Missions to International Organizations and Consular Offices, March 28, 2007, at www.mfa.is/diplomaticmissions/nr/1952 [May 5, 2008]. 3. For the US system see Steigman, Foreign Service, pp. 121–171; Dorman, Inside a US Embassy, with many examples. 4. Jozef Bátora and Brian Hocking, ‘Bilateral Diplomacy in The European Union’, Discussion Papers in Diplomacy, No. 111 (The Hague: Netherlands Institute of International Relations ‘Clingendael’, 2008), pp. 16–19. 5. Auswaertiges Amt: The making of German European Policy, at www.auswaertiges-amt.de/diplo/en/Europa/DeutschlandInEuropa/ entscheidungsfindung.html [May 6, 2008]. 6. For the sources see the Bibliography of this book. 7. See for the US Foreign Service 2 FAM 112.1 and 112.2. 8. For the US embassy in Berlin: germany.usembassy.gov/germany/ sectionss.html; for the British embassy in Washington: www. britainusa.com/sections/articles_show_nt1.asp?d=3&I=41022&L1= 41003&L2=41022&L3=1&a=28898; for the German embassy in

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11. 12. 13. 14.

15. 16.

17.

18.

19. 20. 21. 22. 23.

24.

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London: www.london.diplo.de/Vertretung/london/en/02/Ambassador_ and_Departments/Behoerdenleiter_und_Abteilungen.html (the three Web sites accessed on May 9, 2008). Robert Hopkins Miller, Inside an Embassy: The Political Role of Diplomats (Washington: Congressional Quarterly, 1992), pp. 3–5. John G. H. Halstead, ‘Today’s Ambassador’, in Martin F. Herz, editor, The Modern Ambassador. The Challenge and the Search (Washington: Institute of Diplomacy, Georgetown University, 1983), pp. 23–27; David D. Newsom, ‘The Task of an Ambassador’, in Herz, Modern Ambassador, pp. 32–36. Mattingly, Renaissance Diplomacy, p. 104. Humphrey Trevelyan, Diplomatic Channels, p. 28. See Chapter 1. 2 FAM 113.1; Sec. 207 of the Foreign Service Act of 1980 speaks of the authority of the chief of mission over “all Government executive branch employees”. Trevelyan, Diplomatic Channels, p. 33. Jeffrey D. Merrit, ‘The Ford Administration Response to Human Rights Violations in Brazil’, in Newsom, The Diplomacy of Human Rights, pp. 114–115. William B. Edmondson (interview), ‘The View from Embassy/ Pretoria’, in Newsom, The Diplomacy of Human Rights, pp. 156–157. This article is a realistic account of the possibilities and limits of a human rights policy by an embassy. Agence France Press, May 6, 1991; Inter Press Service, May 10, 1991; Associated Press, October 9, 1991; The Gazette (Montreal), June 19, 1992; Washington Post, November 24, 1991; Associated Press, November 12, 1992;The Financial Post (Toronto), October 31, 1992. New York Times, November 21, 1991; Agence France Press, November 18, 1991. New York Times, November 21, 1991. Agence France Press, November 18, 1991. Smith Hampstone, Rogue Ambassador (Sewanee: University of the South Press, 1997), p. 317. Henry R. Nau, ‘The Diplomacy of World Food: Goals, Capabilities, Issues and Arenas’, International Organizations, Vol. 32, Iss. 3 (Summer 1978), pp. 775–809. Department of State: OES Overseas, at www.state.gov/g/oes/hub/ [May 9, 2008].

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25. Eugene R. Black, Diplomacy of Economic Development (Medford: Simon and Schuster, 1963), p. 24. 26. Antonio Donini, ‘The Bureaucracy and the Free Spirits: Stagnation and Innovation in the Relationship Between the UN and NGOs’, in Weiss and Gordenker, NGOs, p. 88. 27. See, for example, the list of development agreements that Norway has concluded with Tanzania, at www.norway.go.tz/Development/ Agreements/agreements+and+contracts.htm [May 9, 2008]. 28. See Chapter 3. 29. Foreign and Commonwealth Office: British Council, at www.fco. gov.uk/en/about-the-fco/what-we-do/funding-programmes/publicdiplomacy/british-cuncil [May 10, 2008]. 30. France Diplomatie: The Alliance Française, at www.diplomatie.gouv. fr/en/france-priorities_1/francophony-french-language_1113/frenchlanguage_1934/the-alliance-francaise_4475/index.html [May 10, 2008]. 31. Archives of the German Foreign Office, A.2612, March 3, 1887. 32. The story comes from ‘Origins of “Si, Spain”’, at www.docuweb.ca/ INET96/pardosj3.html [May 11, 2008] and Andrew F. Cooper, ‘Snapshots of an Emergent Cyber-Diplomacy: The Greenpeace Campaign against French Nuclear testing and the Spain-Canada “Fish War”’, in Potter, Cyber-Diplomacy, p. 128. 33. Cooper, ‘Snapshots’, in Potter, Cyber-Diplomacy, pp. 142–143. 34. Vagts, The Military Attaché, p. 194. 35. Quoted by Craig, ‘Military Diplomats’, p. 66. 36. Thomas Hobbes, Leviathan, Revised Student Edition, edited by Richard Tuck (Cambridge University Press, 1996), p. 117. 37. US Diplomatic Mission to Germany, Sections and Offices: Administration, at germany.usembassy.gov/germany/sections.html [May 9, 2008]. 38. Government of New Zealand, Security in the Government Sector, Department of the Prime Minister and Cabinet 2002 (quoted as NZ Manual), at www.security.govt.nz/sigs/html/index.html [May 13, 2008]. 39. See the Annexes C to F of Chapter 3 of the NZ Manual. 40. NZ Manual, Chapter 3.24. 41. Stearns, Talking to Strangers, p. 115 calls over-classification a common fault of the US Foreign Service. An analysis of documents registered in the archives of the Norwegian Ministry of Foreign Affairs revealed that 12.2% were classified, Bátora and Neumann, ‘Cautious Surfers’, p. 44. 42. Bátora, Foreign Ministries and the Information Revolution, pp. 112–113.

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43. NZ Manual, Chapter 3.4; Bàtora and Neumann , ‘Cautious Surfers’, p. 29, for the Norwegian Foreign Service. 44. Rangarajan, ‘Diplomacy, States And Secrecy’, Diplomacy and Statecraft, Vol. 9, Iss. 3, 1998, pp. 43–46. 45. New York Times, 23, 25 and 30 September; October 11, 2000. 46. David D. Newsom, ‘Clandestine Collection’, in Robert Hopkins Miller, Inside an Embassy: The Political Role of Diplomats Abroad (Congressional Quarterly, 1992), pp. 38–45. 47. Der Spiegel, 42/2002. 48. Dobrynin, In Confidence, p. 355.

Chapter 12:

Consular Functions

1. See for example the US Consulate General in Osaka-Kobe, at osaka. usconsulate.gov/wwwhceab.html#ConGen and the British Consulate General in Shanghai, at www.uk.cn/bj/index.asp?menu_id=529& artid=1947#staff [May 14, 2008]. 2. Consulate General of India in San Francisco, Consulate and its Activities, at www.cgisf.org [May 17, 2008]. 3. 2 FAM 113.1–1. 4. The Pakistan News Wire, December 6, 2000. 5. Turkish Daily News, March 13, 2002. 6. The Press Trust of India, June 28, 2002. 7. Africa News, August 14, 2002. 8. BBC Monitoring South Asia, October 26, 2005. 9. The Hindu, February 22, 2006. 10. Oakland Tribune, September 27, 2006. 11. The Hindu, December 3, 2006. 12. John W. Bowling, ‘Tales of Three Dilemmas’, in Martin F. Herz, The Consular Dimension of Diplomacy, pp. 63–65. 13. Lee, Consular Law and Practice, p. 7. 14. See the Harvard Research Draft, quoted in Lee, Consular Law and Practice, p. 29. Richtsteig, Wiener Uebereinkommen, p. 145; Dembinski, Modern Law, pp. 45–48. 15. For the US: FAM Chapter 7 (Consular Affairs); for Germany: Law on Consular Officers, Their Functions and Powers (Consular Law) of September 11, 1974, at www.auswaertiges amt.de/diplo/en/AAmt/ Konsulargesetz.pdf [May 12, 2008]. 16. The European Convention on Consular Functions of November 11, 1976 has not entered into force because the necessary number of five

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17.

18. 19. 20. 21.

22. 23. 24. 25. 26.

27. 28.

29.

states has not yet ratified it. See Council of Europe, at conventions. coe.int/treaty/Commun/chercheSig.asp?NT=061&CM=8&DF=&CL= ENG [May 12, 2008]. For the United States see Department of State, Bureau of Consular Affairs, at travel.state.gov/ [May 15, 2008], with many links and details; for Germany see Auswaertiges Amt: Konsularischer Service, at www.auswaertiges-amt.de/diplo/de/Laenderinformationen/01-Laender/ Konsularisches/Uebersicht.html [May 15, 2008]; for the United Kingdom see Foreign and Commonwealth Office: Travelling & Living Overseas and the consular publications, at www.fco.gov.uk/en/ travelling-and-living-overseas [May 15, 2008]. The examples and figures in the text are taken from these web sites. Hoffmann-Glietsch, Konsularrecht, Rz. 2.6.4.1. Lee, Consular Law and Practice, p. 126, quoting a statement by a FCO official. Foreign and Commonwealth Office, Departmental Report, at www.fco. gov.uk/departmental –report/introduction/highlights [May 16, 2008]. Renée Jones-Bos and Monique van Daalen, ‘Trends and Developments in Consular Services: The Dutch Experience’, in The Hague Journal of Diplomacy 3 (2008), p. 91. Peggy Blackford, ‘A Coup, Guinea-Bissau, 1998’, in Dorman, Inside a US Embassy, pp. 91–93. Eberhard Schanze, ‘Geiselnahme im Jemen: Was tut die Botschaft?’ in Brandt and Buck, Auswaertiges Amt, p. 218. The Jakarta Post, May 26, 2005. BBC Worldwide Monitoring, July 2, 2002. The Independent, May 18, 1996; Der Spiegel 28/1996; Good Housekeeping, March 1998, carries an interview with the wife of the American hostage. Sunday Times, March 29, 1998, quoting a US government official. Department of State: International Parental Child Abduction, at travel.state.gov/family/abduction/Solutions/Solutions_3848.html; Foreign and Commonwealth Office: Parental child abduction, at www.fco.gov.uk/en/travelling-and-living-overseas/things-g-wrong/ child-abduction; Auswaertiges Amt:Kindesentziehung, at www. konsularinfo.diplo.deVertretung/konsularinfo/de/03/Kindesentziehung/ Algemeines.html [May 20, 2008]. Text and membership of the Convention at www.hcch.net/index_en. php>act=conventions.text&cid=24 [May 21, 2008].

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30. See for the US Foreign Service see 7 FAM 400, for the German Foreign Service the suggestions in Hoffmann-Glietsch, Konsularrecht, 1.1 § 7 No. 7, for the United Kingdom the publication “In Prison Abroad”, at www.fco.gov.uk/resources/en/pdf/2855621/in-prisonabroad [May 15, 2008]. 31. US Department of State: Consular Notification and Access, Part 5: Legal Material, at http://travel.state.gov/law/consular/consular_ 744.html [May 15, 2008]. 32. Rana, Inside Diplomacy, p. 198. 33. Foreign and Commonwealth Office, Support British nationals abroad, at www.fco.gov.uk/en/departemental-report/part1/british-ationals [June 11, 2008]. 34. Renée Jones-Bos and Moniquie van Daalen, ‘Trends and Developments in Consular Services: The Dutch experience’, in The Hague Journal of Diplomacy 3 (2008), p. 89. 35. LaGrand (Germany v. United States of America), Judgment, ICJ Reports 2001, p. 466, also at www.icj-cij.org/docket/files/104/ 7736.pdf [May 18, 2008]. 36. La Grand Judgment, ICJ Reports 2001, para. 32. 37. La Grand Judgment, para. 13. 38. Gerd Westdickenberg, ‘Deutschland klagt vor dem Internationalen Gerichtshof’, in Brandt and Buck, Auswaertiges Amt, p. 91. 39. La Grand Judgment, para. 77. 40. La Grand Judgment, para. 74. 41. La Grand Judgment, para. 74. 42. Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, ICJ Reports 2004, p. 12, also at www.icj-cij.org/ docket/files/128/8188.pdf [August 5, 2008]. 43. New York Times, March 10, 2005. 44. New York Times, March 25, 2008. 15. New York Times, August 6, 2008. 46. Department of State, Bureau of Consular Affairs: US Passports Will No Longer be Issued Abroad, at travel.state.gov/passport/ppi/ news_860.htm [May 17, 2008]. 47. Bericht an den Deutschen Bundestag: Massnahmen zur weiteren Verbesserung des Visavergabeverfahrens, September 29, 2006, pp. 16–17, at www.auswaertiges-amt.de/diplo/de/Aamt/Abteilungen/ BerichtVisavergabeverfahren.pdf [November 19, 2006].

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48. Department of State, Diplomacy: The US Department of State at Work, at www.state.gov/r/pa/ei/rls/dos/46732.htm [May 17, 2008]. 49. See Lee, Consular Law and Practice, pp. 205–206. 50. For the United States: Destination USA. Secure Borders. Open Doors, at www.unitedstatesvisas.gov; for the United Kingdom see Home Office. UK Border Agency: Visa Services, at www.ukvisas.gov.uk/en; for Germany see Federal Foreign Office: Visa regulations, at www. auswaertiges-amt.de/diplo/en/Willkommen inD/EinreiseUndAufenthalt/ Visabestimmungen.html [May 19, 2008]. 51. The Economist, November 2002: ‘The Longest Journey. A Survey of Migration’. 52. Stearns, Talking to Strangers, p. 15. 53. Hoffmann-Glietsch, Konsularrecht, 1.1. para. 3. 54. See for details the various contributions by practitioners in Herz, The Consular Dimension, pp. 23–34. 55. See for example Chimamanda Ngozi Adichie, ‘The Line of No Return’, New York Times, November 29, 2004. 56. See for example David D. Newsom in Herz, The Consular Dimension, pp. 31–32. 57. Alan K. Simpson in Herz, The Consular Dimension, pp. 11–13. 58. Hoffmann-Glietsch, Konsularrecht, 1.1. para. 3, Rz. 1.3. 59. For a list of the Schengen countries see: Federal Foreign Office, Schengen Regulations, at www.auswaertiges-amt.de/diplo/ WillkommeninD/EinreiseUnd Aufenhalt/Schengen.html [May 19, 2008. See also An Mar Fernández, ‘The Europeanisation of Consular Affairs: The Case of Visa Policy’, Discussion Papers in Diplomacy, No. 105 (The Hague: Netherlands Institute of International Relations ‘Clingendael’, 2006). 60. Common consular instructions on visas for the diplomatic missions and consular posts, Chapter VIII, at eur-lex.europa/LexUriServ/ LexUriServ.do?uri=CELEX:52005XG1222(01):EN:HTML [May 19, 2008]. A ‘Community Code on Visas’ is supposed to incorporate all relevant legislation; see Europa, Activities of the European Union, Summaries of legislation, Community Code of Conduct, at europa.eu/ scadplus/leg/en/lvb/114524.htm [November 25, 2008]. 61. Ana Mar Fernández, ‘Consular Affairs in the EU: Visa Policy as a Catalyst for Integration’, The Hague Journal of Diplomacy 3 (2008), pp. 28–34.

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62. Lee, Consular Law and Practice, pp. 231–233. 63. Convention on the Service Abroad of Judicial And Extrajudicial Documents in Civil or Commercial Matters, at hcch.e-vision.nl/ index_en.php?act=conventions.pdf&cid=17 [May 19, 2008]. 64. See for the list of member states: Department of State, Hague Convention on Service Abroad, at travel.state.gov/law/info/judicial/ judicial_686.html [May 19, 2008]. 65. Lee, Consular Law and Practice, p. 291. 66. Paragraph 19 section 2 of the German Consular Law. 67. Lee, Consular Law and Practice, pp. 304–306. 68. Hoffmann-Glietsch, Konsularrecht, 1.1 para. 17, 1.2.1. 69. Lee, Consular Law and Practice, p. 346.

Chapter 13:

Consular Posts

1. Lee, Consular Law and Practice, pp. 49–50. 2. Richtsteig, Wiener Uebereinkommen, p. 139. 3. Australian Government, Department of Foreign Affairs and Trade: Protocol Guideline: The Consular Corps, at www.dfat.gov.au/protocol/ Protocol_Guidelinjes/03.html [May 20, 2008]. 4. Federal Law Gazette of Germany 1957, Part II, p. 284. 5. County of Los Angeles, Office of Protocol, May 13, 2008, at ceo. lacounty.gov/pdf/LosAngelesConsularCorpsRoster.pdf [May 20, 2008]. 6. Richtsteig, Wiener Uebereinkommen, pp. 163–164. 7. US Department of State, Korea, Democratic People’s Republic of, Country Specific Information, at travel.state.gov/travel/cis_pa_tw/ cis/cis_988.html#registration [May 20, 2008]. 8. Schwarz, Hans-Peter, Handbuch der Deutschen Aussenpolitik (Muenchen: Piper Verlag, 1975), p. 294. 9. New York Times, January 13, 1964, January 22, 1964, February 17, 1964. 10. International Herald Tribune, August 30–31, 2008. 11. New York Times, December 9, 1989. 12. Lee, Consular Law and Practice, pp. 38–39. 13. Quote from a Pakistani official document concerning a new German Consul in Karachi, dated December 17, 1996. 14. BBC Summary of World Broadcasts, October 2 and 3, 2000. 15. See Chapter 6. 16. Lee, Consular Law and Practice, p. 40.

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17. 18. 19. 20. 21. 22.

23. 24. 25. 26. 27. 28. 29.

30. 31. 32.

33. 34. 35. 36. 37.

38. 39.

75 American Journal of International Law, 942–3 (1981). Lee, Consular Law and Practice, pp. 496–504. Richtsteig, Wiener Uebereinkommen, pp. 216–217. Lee, Consular Law and Practice, p. 494. Hoffmann-Glietsch, Konsularrecht, 1.1 Vorbemerkung zum 1. Abschnitt Rz. 4.5.1, footnote 1. United States Diplomatic and Consular Staff in Tehran, Judgment, ICJ Reports 1980, p. 13, also at www.icj-cij.org/docket/files/64/6291. pdf [November 30, 2008]. Federal News Service, June 14, 2002; The Pakistan News Wire, June 18, 2002. New York Times, November 21, 2003; Telegraph, November 21, 2003. New York Times, December 7, 2004. BBC Monitoring South Asia, May 11, 2005. BBC Monitoring South Asia, March 27, 2006. See Chapter 7. United States Diplomatic and Consular Staff in Tehran, Judgment, ICJ Reports 1980, p. 32, also at www.icj-cij.org/docket/files/64/6291. pdf [August 28, 2008]. Lee, Consular Law and Practice, p. 386; Satow’s Guide, p. 22. Federal News Service, March 9, 1989. This definition is based on the suggestions of the Portuguese delegation during the Vienna Conference in 1963. See Luke. T. Lee, Vienna Convention on Consular Relations (Leyden: A. W. Sijthoff, 1966), p. 21. Lee, Consular Law and Practice, pp. 563–564. Bátora and Neumann, ‘Cautious Surfers’, in Diplomacy and Statecraft, Vol. 13, No. 3 (September 2002), p. 28. Netherlands Ministry of Foreign Affairs, Missions abroad, at www. mfa.nl/en/navigation_left/about_dutch_missions [May 22, 2008]. House of Commons Hansard Written Answers for January 25, 1999 [May 22, 2008]. Irish Parliament, Written Answers-Honorary Consuls, at www. oireachtas-debates.gov.ie/D/0491/D.0491.199805280057.html [May 22, 2008]. Australia, Department of Foreign Affairs: Honorary Consulate, atwww.dfat.govau/dept/mission_info.html [May 22, 2008]. BBC Worldwide Monitoring, August 10, 2001.

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40. Department of State, Diplomatic Note, August 6, 2003, at www.state. gov/documents/organization/32435.pdf [May 22, 2008]. 41. Associated Press Worldstream, October 25 and 26, 2001. 42. See the cautious wording of an honorary consul’s duties by the Finish foreign ministry, at formin.finland.fi/public/default.aspx?nodeid= 15276&contentlan=2&culture=en-US [May 22, 2008]. 43. See for example paragraph 24 of the German Consular Law. 44. See for Singapore : The Straits Times, November 20, 2001; for Latvia: Baltic News Service, 25 and 30 May 2002; for Russia: Pravda, April 24, 2003. 45. Mr. Zourek, Special Rapporteur to the UN International Law Commission, guessed that in the mid 1950s 90% of all honorary consuls were nationals of the receiving state, Hoffmann-Glietsch, Konsularrecht, 1.1 Anhang para. 20, p. 41, footnote 1.

Chapter 14:

Multilateral Conferences

1. Plischke, U.S. Department of State, pp. 567–568. 2. See the overview of subjects that have been dealt with by the US government, in Plischke, U.S. Department of State, p. 581. 3. New York Times, May 23, 2008. 4. Berlin Declaration, dated April 1, 2004, at www.reliefweb.int/rw/ RWB.NSF/db900SID/SNAO-634SXS?OpenDocument [May 22, 2008]. 5. Reykjavik Declaration on Responsible Fisheries in the Marine Ecosystem of October 4, 2001, at eelink.net/~asilwildlife/RespFish. html [May 22, 2008]. 6. India eNews, May 25, 2008. 7. The documentation on the United Nations Conference on the Human Environment 1972 is on the Web site of the United Nations Environment Programme, at www.unep.org/Documents.Multilingual/ Default.asp?DocumentID=97 [May 26, 2008]. The quotes in the text are taken from this site. 8. Hajnal, The G8 System, p. 53. 9. Lord Robert Armstrong, ‘Economic Summits: A British perspective’, May 1988, at www.g8.utoronto.ca/scholar/armstrong1999/index.html [June 4, 2008]. 10. German Documentation: Programme Outline of the G8 Summit, at www.g-8.de/Webs/G8/EN/G8Summit/ProgrammeOutline/programmeoutline.html, and Growth and Responsibility — Leitmotif for Germany’s

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11.

12. 13.

14. 15. 16.

17.

18. 19.

20. 21.

G8 Presidency, at www.g-8.de/Content/EN/Artikel?2007/03/Anlagen/ 2007-03-01-g6-schlaglichter-en,property=publicationFile.pdf [May 28, 2008]. Heiligendamm process means “a new topic-driven dialogue on key world economic issues with the aim of reaching concrete results until the G8 Summit in Italy in 2009”, Chair’s Summary, Heiligendamm, June 8, 2007, at www.g-8.de/nsc_true/Content/EN/Artikel?_ g8-summit/anlagen/Chairs-summary,templateteld=raw,property= publicationFile.pdf/Chairs-summary [May 29, 2008]. See the overview given by the G8 Information Center of the University of Toronto, at www.g8.utoronto.ca/meetings.html [May 29, 2008]. G8 Hokkaido Toyako Summit, Outline, Location of Ministers Meetings, at www.mofa.go.jp/policy/economy/summit/2008/info/ map.html [May 29, 2008]. Hajnal, The G8 System, pp. 151–156. Hajnal, The G8 System, pp. 164–169. The White House: Statement by Press Secretary Dana Perino, October 22, 2008, at www.whitehouse.gov/news/release/2008/10/ print/20081022.html [November 18, 2008]. The Spanish Prime Minister was “leant” a seat by the French President who represented France and European Union. See as an example the Draft Rules of Procedure for the Diplomatic Conference for the Adoption of a Cluster Munitions Convention, adopted on February 21, 2008, at www.mfat.govt.nz/clustermunitionswellington/ conference-documents/Draft-RoP-Dublin-21-feb-2008.pdf [May 30]. On the role of presiding officers see Feltham, Diplomatic Handbook, pp. 145–146. The possibilities of the Chair to influence the outcome of a conference have attracted much attention. See particularly the many papers by Jonas Tallberg, for example, ‘The Power of the Chair: Formal Leadership in International Cooperation’, at www.princeton.edu/politics/events/ repository/public/faculty/IR_colloq_Tallberg_April_7_Princeton_ paper.pdf [June 1, 2008]; see also Spyros Blavoukos and Dimitris Bourantonis, ‘The Chair in the UN context: Assessing Functions and Performance’, Discussion Papers in Diplomacy, (The Hague: Netherlands Institute of International Relations ‘Clingendael’, 2005), pp. 4–7. Tallberg, ‘The Power of the Chair’, pp. 7–8. Maurice Strong, Where on Earth are We Going? (New York and London: Texere, 2000), pp. 123–129.

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22. See the source mentioned in footnote 7: Brief Summary of the General Debate. 23. See for example Rule 17 of the Rules of Procedure mentioned in footnote 17. 24. Strong, Where on Earth are We Going?, pp. 131–133. 25. For the importance of the work of the sherpas see Hajnal, The G8 System, pp. 71–73. 26. Ved P. Nanda, ‘Environment’, in Joyner, The United Nations and International Law, p. 296 with footnote 55.

Chapter 15:

International Organizations and Diplomacy

1. Berridge, Diplomacy, p. 151; Ipsen, Voelkerrecht, pp. 398–399. 2. Reparations for injuries suffered in the service of the United Nations, Advisory Opinion: ICJ Reports 1949, p. 180, at www.icj-cij.org/ docket/files/4/1835.pdf [August 29, 2008]. 3. See Shaw, International Law, pp. 909–914, with many references. 4. Europa, Treaty of Lisbon: Treaty at a glance, at europa.eu/lisbon_ treaty/glance/index_en.htm [June 16, 2008]. 5. For details see Amerasinghe, Principles of Institutional Law, pp. 82–83. 6. Dembinski, Modern Law, p. 33. 7. von Glahn, Law Among Nations, p. 126. 8. von Glahn, Law Among Nations, pp. 68–73. 9. Different Amerasinghe, pp. 90–91, who argues that IGOs have prima facie objective personality. Klabbers, Introduction, pp. 55–56, accepts a “presumptive personality” of IGOs. 10. Dembinski, Modern Law, p. 33. 11. Dembinski, Modern Law, pp. 48–54. 12. See Article 6 of the CRSIO. 13. Robert S. Jordan, ‘Law of the International Civil Service’, in Joyner, The United Nations and International Law, p. 389. 14. E. R. Appathurai, ‘Permanent Missions’, in Berridge and Jennings, Diplomacy at the UN, pp. 98–100; Dembinski, Modern Law, pp. 253–262, with references. 15. See Rules 96–133 of the Rules of Procedure for the General Assembly, at daccessdds.un.org/doc/UNDOC/GEN/NSO/005/44/IMG/NS000544. pdf?OpenElement [June 14, 2008]. 16. For the procedure of handling a draft resolution in the UN system see Johan Kaufmann, United Nations Decision Making (Brill Academic, 1985), p. 121.

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17. Kaufmann, Decision Making, p. 131; Smith, Politics and Process at the United Nations, pp. 270–273, with examples. 18. See Chapter 14. 19. Traub, The Best Intentions, p. 359. 20. The Council of the European Union is the Union’s main legislative body. The European Council is composed of the heads of state or government of EU member states and has the task to define the Union’s general guidelines. The Council of Europe is a separate IGO with the aim to develop throughout Europe common and democratic principles. 21. Article 207 of the Treaty Establishing the European Community (Consolidated Version 2006); Alasdair Blair’, Permanent Representations to the European Union’, Diplomacy and Statecraft, Vol. 12, No. 3 (September 2001), pp. 151–152. 22. The examples are taken from Jeffrey Lewis, ‘Institutional Environments and Everyday EU Decision-Making: Rationalist or Constructivist’, 2002, at www.allacademic.com/meta/p_mla_asp_research_citation/0/6/5/ 4/6/p65464_index.html [June 21, 2008]; see also Reinhard Heinisch and Simone Mesner, ‘Coreper: Stealthy Power Brokers or Loyal Servants to Their Governments? The Role of the Committee of Permanent Representatives in a Changing Union’, 2005, at aei.pitt.edu/3046/02/ COREPER-EUSA2005.TxT-wp.doc [June 21, 2008]. 23. Shaw, International Law, p. 826. 24. Maurice Keens-Soper, ‘The General Assembly Reconsidered’, in Berridge and Jennings, Diplomacy at the UN, p. 82. 25. Stephen Zamora, ‘Voting in International Economic Organizations’, in American Journal of International Law (AJIL) Vol. 74 (1980), pp. 566–608. 26. Zamora, ‘Voting’, AJIL Vol. 74, pp. 576–578 and 588. 27. See the definition in Article 161, para. 8, lit. e, of the United Nations Convention on the Law of the Sea, at fletcher.tufts.edu/multi/texts/ BH825.txt [June 14, 2008]. 28. Berridge, Diplomacy, p. 163; Zamora, ‘Voting’, AJIL Vol. 74, p. 574 footnote 30; Kaufmann, Decision Making, pp. 127–129. 29. Appathurai, ‘Permanent Missions’, in Berridge and Jennings, Diplomacy at the UN, pp. 102–103; Kaufmann, Decision Making, pp. 87–92: Smith, Politics and Processes, pp. 53–78. 30. Helen Leigh-Phippard, ‘The Influence of Informal Groups in Multilateral Diplomacy’, in Melissen, Innovation, p. 94.

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31. International Fund for Agricultural Development, About IFAD, Executive Board, at www.ifad.org/governance/ifad/eb.hym [June 15, 2008]. 32. Kaufmann, Decision Making, p. 113. 33. United Nations, Security Council, Resolution 1696 (2006), dated July 31, 2006, at daccessdds.un.org/doc/UNDOC/GEN/N06/450/22/ PDF/N0645022.pdf?OpenElement [June 12, 2008]. 34. Shaw, International Law, pp. 924–925; Ralph Zachlin, ‘Diplomatic Relations: Status, Privileges and Immunities’, in Dupuy, Handbook, pp. 294–295; Iain Scobbie (revising Abdullah El-Erian), ‘International Organizations and International Relations’, in Dupuy, Handbook, pp. 833–834, 838–839; Amerasinghe, Principles of Institutional Law, pp. 315–317. Klabbers, Introduction, pp. 147–153, has a skeptical view regarding functional necessity. 35. Zachlin, ‘Diplomatic Relations’, in Dupuy, pp. 295–298. 36. Simma, The Charter of the United Nations, Art. 105, No. 2 and 12. 37. UN Treaty Series, Vol. 1, p. 15, also at the University of Minnesota Human Rights Library, at www1.umn.edu/humanrts/instree/p&Iconvention.htm [June 15, 2008]. 38. For an overview see Zacklin, ‘Diplomatic Relations’, in Dupuy, Handbook, p. 296; Hans-Joachim Schuetz, ‘Host State Agreements’, in Wolfrum and Phillip, United Nations, pp. 581–591. 39. UN Treaty Series 1947 No. 147, at untreaty.un.org/unts/60001_ 120000/21/00040063.pdf [June 15, 2008]. 40. Agreement on Privileges and Immunities of the United Nations concluded between the Swiss Federal Council and the SecretaryGeneral of the United Nations, at www.unog.ch/80256EDD006B8954 (httpAssets)E896E47AAC100AODC1256F2500528D9D/$file? Accord%20P%207%201%20(1946)%20-%20E.pdf [June 16, 2008]. 41. Article 45 of the UN-Austria Headquarters Agreement for UNIDO, UN Treaty Series 1969, Vol. 600, No. 8679, also at untreaty.un.org/ unts/1_60000/23/28/00045383.pdf, [June 15, 2008], several times amended, particularly by the UN-Austria Agreement regarding the Headquarters of UNIDO and other offices of the UN of September 28, 1979, UN Treaty Series Vol. 1145, No. 17978, also at untreaty.un.org/ unts/60001_120000/2/16/00002765.pdf, [June 15, 2008]. 42. Multilateral treaties deposited with the Secretary-General — Treaty Series I-III-1.asp, also at untreaty.un.org/sample/EnglishInternet Bible/part/chapterIII/treaty1.asp [June 15, 2008]. 43. UN Treaty Series 1982, Vol. 962, No. 13817, also at untreaty.un.org/ unts/60001_120000/5/35/0000709.pdf [June 15, 2008].

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44. UN Treaty Series, Vol. 1792, No. I-31119, also at untreaty.un.org/ unts/60001_120000/29/30/00057453.pdf [June 15, 2008]. 45. International Labor Organization, Constitution, at www.ilo.org/ilolex/ english/constq.htm [June 15, 2008]. For the other Specialized Agencies see Zacklin, ‘Diplomatic Relations’, in Dupuy, Handbook, p. 295, footnote 3. 46. UN Treaty Series I-III-2.asp, at untreaty.un.org/sample/ EnglishInternetBible/partl/chapterIII/treaty2.asp [June 6, 2008]. 47. UN Treaty Series 1960, Vol. 374, No. 5334, also at untreaty.un.org/ unts/1_60000/11/5/00020234.pdf [June 16, 2008]. 48. UN Treaty Series 1999, Vol. 1773, 1999, No. 30879, also at untreaty. un.org/unts/120001_144071/5/10/00004215.pdf [June 16, 2008]. 49. UN Treaty Series I-III-2.asp, at untreaty.un.org/sample/EnglishInternet Bible/partI/chapterIII/treaty2.asp [June 16, 2008]. 50. Schweizerische Eidgenossenschaft, International Organizations in Switzerland, at www.eda.admin.ch/eda/en/home/topics/intorg/ inorch.html [June 16, 2008]. 51. UN Treaty Series 1959, Vol. 339, No. 4849, also at untreaty.un.org/ unts/120001_144071/13/10/00011014.pdf [June 16, 2008]. 52. General Agreement on Privileges and Immunities of the Council of Europe, at: conventions.coe.int/Treaty/en/Treaties/Html/002.htm [June 16, 2008]. 53. Protocol on the Privileges and Immunities of the European Communities at: www.eel.nl/documents/ectreaty/privileg.html [June 16, 2008]. The Protocol on the Privileges and Immunities of the European Union of December 16, 2004, was annexed to the Treaty establishing a Constitution for Europe and the European Atomic Energy Community, which did not yet enter into force. 54. Schweizerische Eidgenossenschaft, Dokumentation: Abkommen zwischen der Schweizerischen Eidgenossenschaft und der Welthandelsorganisation zur Regelung des rechtlichen Status der Organisation in der Schweiz, June 2, 1995, at www.admin.ch/ch/d/sr/0_192_122_632/index.html [June 17, 2009]. For a list of international organizations with which Switzerland has concluded headquarters agreements see Perez, ‘The System of Privileges and Immunities’, pp. 9–10. 55. Shaw, International Law, p. 925; Seidl-Hohenveldern and Loibl, Recht der internatio.nalen Organisationen, pp. 282–285; Scobbie, ‘International Organizations’, in Dupuy, Handbook, pp. 836; Zachlin, ‘Diplomatic Relations’, in Dupuy, Handbook, pp. 298–305. 56. Shaw, International Law, pp. 912–913.

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57. Article 1 of the Agreement between the Government of the French Republic and the United Nations Educational, Scientific and Cultural Organization regarding the Headquarters of UNESCO and the Privileges and Immunities of the Organization on French Territory of July 2, 1954, UN Treaty Series, Vol. 357, No. 5103; also at untreaty.un.org/unts/1_60000/10/26/00019256.pdf [June 17, 2008]. 58. See also Shaw, International Law, p. 911. 59. New York Times, February 27, 2004. 60. Scobbie, ‘International Organizations’, in Dupuy, Handbook, p. 846; different Zachlin, ‘Diplomatic Relations’, in Dupuy, Handbook, p. 299, footnote 17. 61. See for example Article 50, para. 1, of the Agreement Establishing the Asian Development Bank of December 4, 1965, at www.adb.org/ documents/reports/charter/charter.pdf [June 17, 2008]. 62. For a modern text see Article X of the UN-Dutch Headquarters Agreement on the International Tribunal. 63. Schweizerische Eidgenossenschaft, Dokumentation: Abkommen zwischen dem Schweizerischen Bundesrat und der Weltorganisation fuer geistiges Eigentum zur Regelung des rechtlichen Status dieser Organisation in der Schweiz, at www.admin.ch/ch/d/sr/0_192_122_23 [June 16, 2008]. 64. See the Arbitration Tribunal in the European Molecular Biology Laboratory Arbitration of June 29, 1990, in International Law Reports (ILR) Vol. 105 (1997) p. 56; different Seidl-Hohenveldern and Loibl, Recht der Internationalen Organisationen, p. 281 and Amerasinghe, pp. 244–248. 65. Mendaro v. World Bank of September 27, 1983, in 99 ILR, p. 98. 66. For the facts see International Court of Justice, Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of June 26, 1947, Advisory Opinion, ICJ Reports 1988, at www.icj-cij.org/docket/files/77/6729.pdf [June 17, 2008]. 67. New York Times, June 30, 1988. 68. Associated Press, August 29, 1988. 69. Statement of the Department of State, in Federal News Service, November 26, 1988. 70. W. Michael Reisman, ‘The Arafat Visa Affair: Exceeding the Bounds of Host State Discretion’, in American Journal of International Law (AJIL), Vol. 83 (1989), pp. 519–527. 71. Associated Press, November 30, 1988.

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72. New York Times, December 3, 1988. 73. New York Times, December 14, 1988.

Chapter 16:

Permanent Missions and Their Members

1. Web sites of foreign ministries offer a list of their permanent missions to IGOs. See, for example, for the United States: usembassy.state.gov; for Germany: www.auswaertiges-amt.de/diplo/en/Aamt/AuswDienst// STV.html; for Japan: www.mofa.go.jp/about/emb_cons/over/mission. html [June 23, 2008]. 2. J. G. Fennessey, ‘The Vienna Convention on the Representation of States in Their Relationship with International Organizations of a Universal Character’, American Journal of International Law (AJIL), Vol. 70 (January 1976), No. 1, pp. 62–72. 3. See the footnote to the title of the CRSIO at untreaty.un.org/ilc/ texts/instruments/english/conventions/5_1_1975.pdf [June 23, 2008]. 4. Dembinski, Modern Law, pp. 74–75. 5. General Assembly A/Res. 257 (III), at daccessdds.un.org/doc/ RESOLUTION/GEN/NRO/044/28/IMG/NR004428.pdf?OpenElement [June 23, 2008]. 6. Macleod, Hendry and Hyett, External Relations, p. 210, footnote 10. 7. Alasdair Blair, ‘Permanent Representations to the European Union’, Diplomacy and Statecraft, Vol. 12 (September 2001), No. 3, pp. 148–149. 8. Appathurai, ‘Permanent Missions’, in Berridge and Jennings, Diplomacy at the UN, p. 96 with regard to the UN. 9. New York Times, June 14, 2001, March 16, 2002. 10. G. R. Berridge, “‘Old Diplomacy’ in New York”, in Berridge and Jennings, Diplomacy at the UN, pp. 180–187. 11. Permanent Mission of Japan to the United Nations, About us, Organization, at www.un.int/japan/aboutus/organization.htm; for the French Mission to the UN see Who’s Who at the Mission, at www.un.int/france/frame_francais/france_et_onu/organigramme/or ganigramme.htm [June 23, 2008]. 12. UKRep Sections, at www.ukrep.be/plitic.html [June 23, 2008]. 13. The Permanent Norwegian Delegation to NATO, Overview of the current staff, at www.norway-nato.org/contact/Who+is+who/employees. htm [June 23, 2008]. 14. South Africa, Department of Foreign Affairs, South African Representation Abroad, at www.dfa.gov.za/foreign/sa_abroad/sae. htm [June 23, 2008].

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15. For a full list of US Representatives to the UN see: www.usunnewyork. usmission.gov/ambassadors/ambassador_hist.htm [June 24, 2008]. 16. See General Assembly Res. A/257 (III) December 3, 1948 (for the source see footnote 5). 17. See the examples at www.africa-union.org/root/au/index/index.htm [June 24, 2008]. 18. See for example, Vietnam Ambassador to EU presented Letter of Credential, at www.vietnamembasy.be/nr07052115843/nr070731102538/ ns071123170259 [June 24, 2008]. 19. Dembinski, Modern Law, pp. 106–107. 20. See also Scobbie, ‘International Organizations’, in Dupuy, Handbook, p. 860. 21. For the Internet sources of the various treaties see the footnotes to Chapter 15. 22. UN Treaty Series, Vol. 1947, No. 147. 23. Dembinski, Modern Law, pp. 146–148. 24. Agreement on Privileges and Immunities of the United Nations concluded between the Swiss Federal Council and the Secretary General of the United Nations, April 19, 1946. 25. Perez, ‘The System of Privileges and Immunities, p. 19. 26. Abkommen zwischen der Schweizerischen Eidgenossenschaft und der Welthandelsorganisation zur Regelung des rechtlichen Status der Organisation in der Schweiz, June 2, 1995. 27. UN Treaty Series 1982, Vol. 962, No. 13817. 28. UN Treaty Series, Vol. 357, No. 5103. 29. Protocol on the Privileges and Immunities of the European Communities, at www.eel.nl/documents/ectreaty/privileg.html [June 16, 2008]. 30. Concurring Macleod, Hendry and Hyett, External Relations, p. 211. 31. UN Treaty Series, Vol. 1, p. 15 and UN Treaty Series I-III-2.asp. 32. Abkommen zwischen dem Schweizerischen Bundesrat und der Weltorganisation fuer geistiges Eigentum zur Regelung des rechtlichen Status dieser Organisation; UN Treaty Series 1999, Vol. 1773, 1999, No. 30879. 33. Dembinski, Modern Law, pp. 146–148; Scobbie, ‘International Organizations’, in Dupuy, Handbook, p. 823. 34. G. E. do Nascimento e Silva, ‘Privileges and Immunities of Permanent Missions to International Organizations’, German Handbook of International Law, Vol. 21, 1978, pp. 12–14.

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35. South Africa, for example, calls its representation to the EU “Mission to the European Union”, at www.southafrica.be [June 24, 2008]. 36. For an overview of non-member states that have maintained observer missions to the UN see E. Suy, ‘The Status of Observers in International Organizations’, Recueil des Cours, Collected Courses of the Hague Academy of International Law (1978), Vol. II, p. 162, footnote 15. 37. Suy, ‘Status of Observers’, Recueil de Cours (1978), Vol. II, pp. 155–156. 38. Berit Bartram and Dørte Pardo López, ‘Observer Status’, in Wolfrum and Phillip, United Nations, p. 939. 39. List of UN member states at www.un.org/Overview/unmember.html [June 24, 2008]. 40. For a short history of the Holy See’s Diplomacy see www.holyseemission.org/short_history.html. 41. United Nations Member States, Observers, at www.un.org/members/ intergovorg.shtml [June 24, 2008]. 42. Council of Europe, Statutory Resolution (93) 26, adopted by the Council of Ministers on May 14, 1993, at conventions.coe.int/Treaty/ en/Treaties/Html/Resol9326.htm [June 26, 2008]. 43. Council of Europe, Member States, at www.coe.int/T/E/Com/ About_Coe/Member_states/default.asp [June 26, 2008]. 44. See the example in Bulletin EU 7/8-2002 (europa.eu.int/abc/doc/off/ bull/de/200207/p106160.htm). 45. Beate Lindemann, ‘Die Organisationsstruktur der Vereinten Nationen und die Mitarbeit der Bundesrepublik Deutschland’, in Ulrich Scheuner und Beate Lindemann, Die Vereinten Nationen und die Mitarbeit der Bundesrepublik Deutschland (Muenchen und Wien, 1973), pp. 247–248. 46. For the source see footnote 29. 47. Macleod, Hendry and Hyett, External Relations, p. 218. 48. See Scobbie, International Organization, in Dupuy, Handbook, pp. 866–867. 49. Ordinance of October 17, 1978, in United Nations Juridical Yearbook 1979, p. 3.

Chapter 17:

International Secretariats and Officials

1. General Postal Union, October 9, 1874, at www.yale.edu/lawweb/ avalon/intdip/usmulti/usmu010.htm [July 22, 2008].

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2. Seidl-Hohenveldern and Loibl, Recht der Internationalen Organisationen, pp. 123–126. 3. Brian Urquhart, Life in Peace and War (Weidenfeld & Nicolson, 1987), pp. 131–139. 4. New York Times, September 17, 2004. 5. Goodrich, Leland, Hambro, Edvard, and Simons, Patricia, Charter of the United Nation: Commentary and Documents (Colombia University Press, third and revised edition, 1969), pp. 578–579; Simma, Charter of the United Nations Charter, p. 1195. 6. Alan James, ‘The Secretary-General: A Comparative Analysis’, in Berridge and Jennings, Diplomacy at the UN, pp. 31–38. 7. For the following see: Universal Postal Union, Frequently asked questions, at www.upu.int/faq/en/index.shtml [July 22, 2008]. 8. Universal Postal Union, Constitution, General Regulations, Resolutions, and Decisions, Rules of Procedure, Legal Status of the UPU with Commentary by the International Bureau of the UPU, Berne 2005, pp. VIII–XI, at www.upu.int/acts/en/1_constitution_en. pdf [July 22, 2008]. 9. See footnote 1. 10. Article 112 of the General Regulations (same source as in footnote 8). 11. George A. Codding, Jr., Universal Postal Union (New York: New York University Press, 1964), pp. 199–202. 12. See Article 112, paras. 2.7 and 2.9, of the General Regulations with Commentary (same source as in footnote 8). 13. Codding, Universal Postal Union, p. 206. 14. Universal Postal Union, Frequently asked questions: What is the role of the International Bureau, same source as in footnote 8. 15. Universal Postal Union, At a Glance, at www.upu.int/about_us/ en/upu_at_a_glnace.html [July 22, 2008]. 16. Organization for Economic Cooperation and Development: Convention on the Organization for Economic Cooperation and Development December 14, 1960, at www.oecd.org/document/7/ 0,3343,en_2649_34483_1915847_1_1_1_1,00.html [July 22, 2008]; Clive Archer, Organizing Europe; The Institution of Integration (London: Edward Arnold, 1994), pp. 47–56. 17. For details see the OECD Web site: About the OECD, at www.oecd.org/pges/0,3417,en_36734052_36734103_1_1_1_1_1,00. html [July 23, 2008].

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18. Simma, Charter of the United Nations, pp. 1265–1266; Ferdinand Trauttmansdorff, ‘The Organs of the United Nations’, in Franz Cede and Lilly Sucharipa-Behrmann, editors, The United Nations. Law and Practice (Aspen Publishers, 2001), p. 45. 19. UNDP: Executive Board, Rules of Procedure, at www.undp.org/ execbrd/rules_ebsecretariat.shtml [July 23, 2008]. 20. General Assembly A/ RES/ 2029 (XX) of November 22, 1965, at daccessdds.un.org/doc/RESOLUTION/GEN/NRO/217/92/PDF/ NR021792.pdf?OpenElement [July 7, 2008]; General Assembly A/ RES/2688 (XXV) of December 11, 1970, at daccessdds.un. org/doc/RESOLUTION/GEN/NRO/349/53/IMG/NR034953.pdf ? OpenElement [July 23, 2008]. 21. See the organigram at UNDP for Beginners, second edition, June 2006, at www.sas.undp.org/documents/UNDP_for_beginners.pdf [July 23, 2008]. 22. Hubertus von Morr, ‘Secretary-General’, in Wolfrum and Phillip, United Nations, pp. 1136–1146; Smith, Politics and Process, pp. 79–94. 23. Goodrich, Hambro, and Simons, Charter of the United Nations, pp. 578–579; Simma, Charter of the United Nations, pp. 1220–1223. 24. Simma, Charter of the United Nations, pp. 1220–1232; von Morr, ‘Secretary-General’, in Wolfrum and Phillip, United Nations, pp. 1141–1144; A. Walter Dorn, ‘Early an Late Warning by the UN Secretary-General of Threats to the Peace: Article 99 Revisited’, at www.rmc-cmr.ca/academic/gradrech/dorb30_e.html [July 23, 2008]. 25. General Assembly A/RES/ 46/59 with Annex, dated December 9, 1991, at daccessdds/un.org/doc/RESOLUTION/GEN/NRO/581/47/ IMG/NR058147.pdf?OpenElement [July 23, 2008]. 26. United Nations Peacekeeping: Meeting New Challenges, at www.un. org/Depts/dpko/dpko/faq/q8.htm [July 23, 2008]; M. Goulding, ‘The Evolution of United Nations Peacekeeping’, International Affairs, Vol. 69, No. 3, July 1993, pp. 452–455. 27. Charles Traub, The Best Intentions, pp. 102–109. 28. For an example see General Assembly A/RES/57/26 of November 19, 2002, at daccessdds.un.org/doc/UNDOC/GEN/N02/538/47/PDF/ N0253947.pdf?OpenElement [July 23, 2008] and World Summit Outcome, General Assembly Resolution A/RES/60/1, dated October 24, 2005, at daccessdds.un.org/doc/UNDOC/GEN/N05/487/60/PDF/ N0548760.pdf?OpenElement [August 20, 2008]. 29. This story comes from Traub, The Best Intentions, pp. 79–85.

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30. Charles Winchmore, ‘The Secretariat: Retrospect and Prospect’, International Organization, Vol. XIX, 1965, pp. 622–623 and 634–639. 31. Robert S. Jordan, ‘Law of the International Civil Service’, in Joyner, United Nations and International Law, p. 389. 32. Winchmore, ‘Secretariat’, International Organization, Vol. XIX, 1965, pp. 622–639; Trauttmansdorff ‘Organs’, in Cede and SucharipaBehrmann, United Nations, p. 44; D. W. Bowett, The Law of International Institutions (Sweet and Maxwell, fourth edition, 1982), p. 87. Simma, Charter of the United Nations, p. 1193, has a different view. 33. Simma, Charter of the United Nations, p. 1259; Trauttmansdorff, ‘Organs’, in Cede and Sucharipa, United Nations, p. 46. 34. United Nations Home: About the UN, Secretariat, at www.un.org/ documents/st.htm [July 24, 2008]. 35. Departments of the UN Secretariat: www.un.org/Depts/index.html [July 24, 2008]. 36. Quoted by Geoffrey Edwards, ‘Introduction. The European Commission in perspective’, in Spence, The European Commission, p. 19. 37. Europa, European Union institutions and other bodies: The European Commission, at europa.eu/institutions/inst/comm/index_en.htm [July 24, 2008]. 38. Neill Nugent, The European Commission (Houndmills: Palgrave, 2001), pp. 10–17; Geoffrey Edwards, ‘Introduction. The European Commission in perspective’, in Spence, The European Commission, pp. 18–22. 39. European Commission, Directorates-General and Services, at ec.europa.eu/dgs_en.htm [July 24, 2008]. 40. David Spence and Anne Stevens, ‘Staff and personnel policy in the Commission’, in Spence, The European Commission, p. 178. 41. Hussein Kassim and Anand Menon, ‘European Integration since the 1990s: Member States and the European Commission’, 2004, at www.arene.uio.no/publications/wp_04_06.pdf [July 24, 2008]. 42. For an effort to bridge the realist-idealist divide see J. Martin Rochester, Between Peril and Promise. The Politics of International Law (Washington DC: CQ Press, 2006), pp. 27–29. 43. Reparation for Injuries suffered in the service of the United Nations, Advisory Opinion, ICJ Reports 1949, p. 177, at www.icj-cij.org/ docket/files/4/1835.pdf [July 24, 2008]. 44. United Nations, Salaries, Allowances, Benefits and Job Classification, at www.un.org/depts/OHRM/salaries_allowances/salary.htm [July 24,

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45. 46. 47. 48. 49. 50.

51. 52. 53. 54.

55. 56.

57. 58. 59. 60. 61. 62. 63.

2008]; Hans-Joachim Priess, ‘International Civil Service’, in Wolfum and Phillip, United Nations, p. 97. Working for the EU, at www.eu-careers.com/workingfortheeu.htm [July 24, 2008]. See the list in Simma, Charter of the United Nations, p. 1231, footnotes 4 and 5. See for the following C. F. Amerasinghe, ‘The Individuals’, in Dupuy, Handbook, pp. 339–349. Dobrynin, In Confidence, p. 33. Winchmore, ‘Secretariat’, International Organization, Vol. XIX, 1965, pp. 624–629. Simma, Charter of the United Nations, pp. 1232–1247; Erskine Childers with Brian Urquhart, Renewing the United Nations System (Uppsala: Dag Hammarskold Foundation, 1994), pp. 159–168. UN Staff Regulations 1.2, lit. j (ST/SGB/2003/8, dated February 7, 2003), at ombudsperson.undp.org/staffrules.pdf [July 24, 2008]. Jordan, ‘Law of the International Civil Service’, in Joyner, The United Nations and International Law, pp. 393–394. Nugent, The European Commission, p. 182. Maryon Macdonald, ‘Identities in the Commission’, in Neill Nugent, editor, At the Heart of the Union: Studies of the European Commission (Palgrave, 1970), pp. 61–62. David Spence and Anne Stevens, ‘Staff and Personnel Policy in the Commission’, in Spence, The European Commission, pp. 197–203. Code of Conduct for Commissioners, SEC (2004) 1487/2, at ec. europa.eu/commission_barroso/code_of_conduct/code_conduct_en. pdf [July 25, 2008]. European Commission, Code of Good Administrative Behavior, at ec.europa.eu/civil_society/code/index_en.htm [July 25, 2008]. Jordan, ‘Law of the International Civil Service’, in Joyner, The United Nations and International Law, pp. 389–391. Only the Internet sources for those treaties are quoted that have not been mentioned in the footnotes to Chapter 15. UN Treaty Series, Vol. 1, p. 15, and UN Treaty Series I-III-2.asp. UN Treaty Series 1960, Vol. 374, No. 5334. UN Treaty Series 1969, Vol. 600, No. 8679, and UN Treaty Series 1982, Vol. 962, No. 13817. UN Treaty Series 1947, No. 147.

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64. Agreement on Privileges and Immunities of the United Nations concluded between the Swiss Federal Council and the Secretary General of the United Nations, of April 19, 1946 (Swiss Law: RS 0.192.120.1). 65. Schweizerische Eidgenossenschaft, Dokumentation: Abkommen zwischen dem Schweizerischen Bundesrat und der Weltorganisation fuer Geistiges Eigentum zur Regelung des rechtlichen Status dieser Organisation in der Schweiz (Swiss Law: SR 0.192.122.23). 66. UN Treaty Series 1960, Vol. 357, No. 5103. 67. UN Treaty Series 1982, Vol. 962, No. 13817. 68. UN Treaty Series 1999, Vol. 1773, No. 30879. 69. UN Treaty Series, Vol. 1792, No. I-31119. 70. Schweizerische Eidgenossenschaft, Dokumentation: Abkommen zwischen der Schweizerischen Eidgenossenschaft und der Welthandelsorganisation zur Regelung des rechtlichen Status der Organisation in der Schweiz, June 2, 1995 (Swiss Law: RS 0.192.122.632). 71. Article 19 of the Convention on the Organization for Economic Cooperation and Development of December 14, 1960 refers to the Supplementary Protocol No. 2, which refers to the Supplementary Protocol No. 1 to the Convention for European Economic Cooperation of April 16, 1948; see Conventions on OECD at www.oecd.org/ document/7/0,3343,en_2649_34483_1915847_1_1_1_1,00.html [July 25, 2008]. 72. General Agreement on Privileges and Immunities of the Council of Europe. 73. Article 291 of the Treaty establishing the European Community (Consolidated Version 2006) refers to the Protocol (No 36) on the Privileges and Immunities of the European Communities of 1965. 74. Zacklin, ‘Diplomatic Relations’, in Dupuy, Handbook, pp. 307–309; Scobbie, ‘International Organizations and International Relations’, in Dupuy, Handbook, pp. 854–855. 75. Scobbie, ‘International Organizations and International Relations’, in Dupuy, Handbook, p. 856. 76. Scobbie, ‘International Organizations and International Relations’, in Dupuy, Handbook, pp. 856–857. 77. Simma, Charter of the United Nations, p. 1143. 78. Denza, Diplomatic Law, p. 342.

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79. General Assembly A/RES/76(I), dated December 7, 1946, at daccessdds.un.org/RESOLUTION/GEN/NRO/033/27/IMG/NR0033 27.pdf?OpenElement [July 25, 2008]. 80. See for example the Regulation No. 549/69 of the Council of the European Communities of March 25, 1969, at www.legaltext.ee/text/ en/T50939.htm [July 25, 2008]. 81. Linda S. Frey and Marsha Frey, ‘Diplomatic Analogy: International Functionaries And Their Privileges’, in Jovan Kurbalija, Modern Diplomacy, at www.diplomacy.edu/Books/mdiplomacy_book/frey_ frey/frey_frey.htm [July 25, 2008].

Chapter 18: External Missions of International Governmental Organizations 1. Gerard J. Mangone, ‘Field Administration: The United Nations Resident Representative’, in Gerard J. Mangone, editor, UN Administration of Economic and Social Programs (New York: Columbia University Press, 1966), pp. 160–161. 2. Dembinski, Modern Law, pp. 65–66. 3. FAO, Decentralized Offices, at www.fao.org/decentralizedoffices/ physical_presence.asp?Ing=en&jAction=[July 7, 2008]. 4. FAO, Committee on Constitutional and Legal Matters: Information on Cases involving the Immunity of the Organization, June 3–4, 2002, at www.fao.org/DOCREP/MEETING/004/Y6610E.HTM#P22_583177 [July 6, 2008]. 5. FAO: The Challenge of Renewal, Report of the Independent External Evaluation Commission of the Food and Agriculture Organization of the United Nations, September 2007, at ftp.fao.org/docrep/fao/ meeting/012/k0827e02.pdf, particularly pp. 250–268 [July 6, 2008]. 6. Conference Committee for the Follow-up to the Independent External Evaluation of FAO, at www.fao.org/iee-follow-up-committee/homeiee/en [July 7, 2008]. 7. General Assembly A/RES/2029 (XX) of November 22, 1965, at daccessdds.un.org./doc/RESOLUTION/GEN/NRO/217/92/PDF/ NR021792.pdf?OpenElement [July 7, 2008]. 8. Seidl-Hohenveldern and Loibl, Recht der Internationalen Organisationen, pp. 11 and 105.

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9. General Assembly A/RES/48/162 of December 20, 1993, at daccessdds.un.org/doc/UNDOC/GEN/N94/023/09/PDF/N9402309.pdf ? OpenElement [July 7, 2008]. 10. Standard Basic Assistance Agreement between the Recipient Government and the UNDP, available at www.undp.org/idp/docs/ TemplateSBAA.doc [July 7, 2008]. As an example see the Agreement between UNDP and Albania of June 17, 1991, UN Treaty Series 1999, Vol. 1639, No. 28167, also at untreaty.un.org/unts/120001_144071/4/ 10/00003352.pdf [July 8, 2008]. 11. UNDP, Countries, at www.undp.org/countries [July 7, 2008]. 12. See for example General Assembly A/RES/2688 (XXV) with Annex of December 11, 1970, at daccessdds.un.org/doc/RESOLUTION/ GEN/NRO/349/53/IMG/NR034953.pdf?OpenElement [July 7, 2008]. 13. Manfred Kulessa, ‘Resident Coordinator’, in Wolfrum and Philipp, United Nations, pp. 1073–1080. 14. For details see Consultative Committee on Programme and Operational Questions (CCPOQ), Statement on the Role and Functioning of the Resident Coordinator System, ACC/1995/1, at un.intnet.mu/rc/ CCPOQstatement.pdf [July 9, 2008]. 15. General Assembly A/RES/34/213 of December 19, 1979, at www.un. org/documents/ga/res/34/a34res213.pdf [July 8, 2008]. 16. UNDP, Ethiopia: The UN Country Team, at www/et.undp.org/index. php?option=com_content&task=view&id=21&Itemid=83 [July 9, 2008]. 17. UNDP, Uzbekistan, UNDP Country Office in Uzbekistan, at www.undp.uz/en/about/countryoffice.php [July 8, 2008]. 18. Press Briefing by UN Security Coordinator on August 21, 2003, at www.un.org/News/briefings/docs/2003/MyatPB.doc.htm [July 8, 2008]. 19. washingtonpost.com, July 7, 2008. 20. New York Times, October 12, 2003. 21. Asian Development Bank, HQ and Field Offices, at www.adb.org/ About/hq-field-offices.asp [July 8, 2008]. 22. See Asian Development Bank, Annual Report 2007, Chapter: Finance and Administration, at www.adb.org/Documents/Reports?Annual_ Report/finance-administration.asp [July 8, 2008]. 23. Agreement Establishing the Asian Development Bank, December 4, 1965, at www.adb.org/Documents/Reports/Charter/charter.pdf [July 8, 2008].

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24. Asian Development Bank, Membership, at www.adb.org/About/ membership.asp#nonregional [July 8, 2008]. 25. European Commission, External Relations, Unified External Service of the European Commission, at ec.europa.eu/external_relations/ delegations/intro/role.htm [July 8, 2008]. See also Brian Hocking and David Spence, ‘Towards a European Diplomatic System?’ Discussion Papers in Diplomacy, No. 98 (The Hague: Netherlands Institute of International Relations ‘Clingendael’, 2005). 26. Laurens Jan Brinkhorst, ‘Permanent Missions of the EC in Third Countries: European Diplomacy in the Making’, in Legal Issues of European Integration (LIEI) 1984 p. 24; Macleod, Hendry and Hyett, External Relations, p. 209. 27. Nugent, The European Commission, pp. 297–299. 28. Michael Bruter, ‘Diplomacy without a state: the external delegations of the European Communities’, in Journal of European Public Policy (JEPP), 6:2, June 1999, p. 187, cites Mexico as an example. 29. Simon Duke, ‘A Foreign Ministry for the EU: But where’s the Ministry?’ Discussion Papers in Diplomacy No. 89 (The Hague: Netherlands Institute of International Relations ‘Clingendael’, 2003), p. 5. 30. Simon W. Duke, ‘Preparing for European Diplomacy?’ Journal of Common Market Studies, 2002, Vol. 40, No. 5, p. 855. 31. B. R. Bor, ‘Cooperation between the Diplomatic Missions of the Ten in Third Countries and International Organizations’, in Legal Issues of European Integration (LIEI) 1984/1, p. 149. 32. Macleod, Hendry and Hyett, External Relations, pp. 209 and 216. 33. Article 188 Q of the Treaty of Lisbon amending the Treaty on European Union and the Treaty Establishing the European Community, at www. consilium.europa.eu/uedocs/cmsUpload/cg00014.en07.pdf [July 8, 2008]. 34. David Spence, ‘The Commissions External Service’, in Spence, The European Commission, p. 397. 35. See for example the Delegation in Washington at www.eurunion.org/ delegati/WashDelStruct.htm [July 10, 2008]. 36. See, for example, the Delegation to Indonesia and Brunei Darussalam, Organigramme, at www.delidn.ec.europa.eu/en/contacts/organigramme.htm [July 10, 2008]. 37. Macleod, Hendry and Hyett, External Relations, p. 216; Bruter, ‘Diplomacy without a state’, in JEPP, 6:2, pp. 183–215.

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38. Protocol 2 on Privileges and Immunities, at www.acpsec.org/en/ conventions/cotonou/pdf/agr04_en.pdf [July 9, 2008]. 39. Macleod, Hendry and Hyett, External Relations, p. 217. 40. Brinkhorst, ‘Permanent Missions’, in LIEI, 1984, p. 28.

Chapter 19:

International Treaties and Diplomacy

1. Gordon A. Craig and Alexander L. George, Force and Statecraft. Diplomatic Problems of Our Time (New York and Oxford: Oxford University Press, second edition, 1990), pp. 143–171. 2. Plischke, U.S. Department of State, p. 527. 3. For the US government see: Department of State, Office of the Legal Adviser, Treaty Affairs, at www.state.gov/s/l/treay [July 17, 2008]. 4. This is Oppenheim’s definition, quoted in von Glahn, Law Among Nations, p. 460 5. Barston, Modern Diplomacy, pp. 250–252. 6. Memorandum of Understanding between the Government of the United States of America and the Government of the Federal Republic of Germany concerning Air Navigation Services in Berlin, at untreaty.un.org/unts/144078_158780/18/10/9026.pdf [July 20, 2008]. 7. Barston, Modern Diplomacy, pp. 250–252. 8. Memorandum of Understanding between the Government of the Kingdom of Norway and the Government of the United Republic of Tanzania on Development Cooperation of November 9, 2007, at www. norway.go.tz/NR/rdonlyres/F5D941D3–6B92–4E21-AA3496E9E7 dcb4D0/80047/MoU.pdf [July 21, 2008]. 9. For the treaties to which the United States is a party consult Department of State, Treaties in Force 2007, at www.state.gov/s/l/ treaty/treaties/2007/index.htm [July 15, 2008]. 10. Plischke, U.S. Department of State, pp. 544–563. 11. Kyoto Protocol: Status of Ratification as of May 13, 2008, at unfccc. int/files/kyoto_protocol/status_of_ratification/application/pdf/ kp_ratification.pdf [July 18, 2008]. 12. Extradition Treaty Between the United States of America and India, signed at Washington June 25, 1997, with Exchange of Letters, at www.state.gov/documents/organization/101685.pdf [July 15, 2008]. 13. For details see von Glahn, Law Among Nations, pp. 220–239. 14. A list of extradition treaties concluded by the United States is on the Web site of the Cornell University Law School, at www.law.cornell.

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15. 16. 17. 18.

19. 20. 21.

22.

23. 24. 25. 26. 27.

edu/uscode18/usc_sec_18_00003181——000-notes.html. There are multilateral treaties on extradition: the European Convention on Extradition of 1957 with Protocols, at conventions.coe.int/treaty/ en/treaties/html/024.htm, ratified by 47 states as of July 15, 2008, at conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=024&CM= 8&DF=&CL=ENG and the Montevideo Convention on Extradition of 1933, at www.yale.edu/lawweb/avalon/intdip/interam/intam04.htm [July 15, 2008]. See the definition in Article 2, para. 1, lit. b, of the Convention on the Law of Treaties of 1969. Text of the Statute of the International Criminal Court at untreaty. un.org/cod/icc/statute/99_corr/cstatute.htm [July 16, 2008]. See Article 12, para. 1, lit. a, of the Convention on the Law of Treaties. For the US practice see 11 FAM 730: Guidelines for Concluding International Agreements; see also Feltham, Diplomatic Handbook, pp. 123–128. See the Model Instrument of Full Powers suggested by the UN, at untreaty.un.org/english/treatyhandbook/annex3.htm [July 18, 2008]. For the practice of the United States see 11 FAM 720. For an example see exchange of notes between the British ambassador in Egypt and the Egyptian minister for foreign affairs ad interim dated December 5, 1949, at www.internationalwaterlaw.org/regionaldocs/owen-falls-dam2.html [August 30, 2008]. See for example the Instrument of Ratification by Israel of the Treaty of Peace between The State of Israel and The Arab Republic of Egypt of April 20, 1979, at the Web site of the Israel Ministry of Foreign Affairs, Historical Documents, 1979–1980, April 25, 1979. Text of the Mine Ban Convention at www.un.org/Depts/mine/ UNDocs/ban_trty.htm [July 16, 2008]. Text on the Web site of the US Embassy in Germany, at usa. usembassy.de/etexts/ga2–14points.htm [July 18, 2008]. For details: Shaw, International Law, pp. 641–649. For the source of the treaty see footnote 23. Human Rights Committee, General Comment 24 (52): General comment on issues to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under article 41 of the Covenant, UN Doc. CCPR/C/21/ Rev.1/Add.6 (1994), at www1.umn.edu/humanrts/gencomm/ hrcom24.htm#one [July 18, 2008].

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28. Office of the United Nations High Commissioner for Human Rights, International Covenant on Civil and Political Rights of December 16, 1966, Declarations and Reservations, at www2.ohchr.org/english/ bodies/ratification/docs/declarationsReservationsICCPR.pdf [July 18, 2008]. 29. See the General Comment 24 (52) by the Human Rights Committee, same source as in footnote 27. 30. Joachim Nawrocki, Relations Between The Two States In Germany. Trends, Prospects and Limitations (Bonn: Verlag Bonn Aktuell, 1985), pp. 53–54. 31. Office of the United Nations High Commissioner for Human Rights, Convention on the Prevention and Punishment of the Crime of Genocide of December 9, 1948, at www2.ohchr.org/english/bodies/ ratifcation/1.htm [July 18, 2008]. 32. Shaw, International Law, pp. 663–664. 33. Gabcíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, ICJ Reports 1997, No. 95. at www.icj-cij.org/docket/files/92/7375.pdf [July 28, 2008]. 34. Gabcíkovo-Nagymaros Project, Judgment, ICJ Reports 1997, No. 104, same source as in footnote 33.

Chapter 20:

Diplomatic Methods

1. Auswaertiges Amt, Voraussetzungen fuer eine Bewerbung fuer den hoeheren Auswaertigen Dienst, at www.auswaertiges-amt.de/diplo/de/ Aamt/AusbildungKarriere/AA-Taetigkeit/HoehererDienst/Voraussetzungen.html [July 28, 2008]. 2. Foreign and Commonwealth Office, Working for us, Careers, Frequently asked questions, at www.fco.gov.uk/en/about-the-fco/ working-for-us/careers-faqs [July 28, 2008]. 3. US Department of State: The Foreign Service Officer Selection Process, at careers.state.gov/officer/selection.html#FLS [July 28, 2008]. 4. Grau und Schidt-Bremme, Gesetz ueber den Auswaertigen Dienst, pp. 497–505. 5. See for example Stearns, Talking to Strangers, p. 127. 6. For the categorization see 13 FAM 222.2–1. 7. Satow’s Guide, pp. 38 and 59; Robert B. Harmon, The Art and Practice of Diplomacy: A Selected and Annotated Guide (Metuchen: Scarecrow Press, 1971), p. 158.

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8. Acte du Congrès de Vienne du 9 Juin 1815, Article 120, at www. google.com/gwt/n?u=http%3A%2F%pcombal.club.fr%2Fcongresvien ne.htm [July 28, 2008]. 9. Hamilton and Langhorne, The Practice of Diplomacy, p. 157. 10. New York Times, March 25, 2001. 11. Satow’s Guide, p. 40. 12. 5 FAH-1 H-611, lit. j. 13. See Article 53 of the CDR and Article 79 of the CCR. 14. Article 128 of the Rome Statute of the International Criminal Court, at untreaty.un.org/cod/icc/statute/romefra.htm [July 29, 2008]. 15. Europa: Languages and Europe, at europa.eu/languages/en/home [July 28, 2008]. 16. David Spence and Anne Stevens, ‘Staff and personnel policy in the Commission’, in Spence, The European Commission, pp. 304–205. 17. See Satow’s Guide, pp. 333–334. 18. United Nations, Department for General Assembly and Conference Management, at www.un.org/Depts/DGAMC/faq_languages.htm [July 29, 2008]. 19. Vereinte Nationen: Deutscher Uebersetzungsdienst, at www.un.org/ Depts/german/gts/fs_aboutus.html [July 29, 2008]. 20. European Commission, Directorate-General for Translation, at ec. europa.eu//dgs/translation/index_en.htm [July 29, 2008]. 21. European Union, Directorate-General for Interpretation, at scic.ec. europa.eu/europa/jcms/c_5204/what-we-do-faq [July 29, 2008]. 22. Stearns, Talking to Strangers, p. 174, note 4. 23. Vicky Ann Cremona and Helena Mallia, ‘Interpretation and Diplomacy’, in Jovan Kurbalija and Hannah Slavik, Language and Diplomacy (Malta, 2001), at www.diplomacy.edu/Books/language_ and_diplomacy/book.htm [July 30, 2008]. 24. Trevelyan, Diplomatic Channels, pp. 81–82. 25. Wilhelm Grewe, Die Sprache der Diplomatie (Hamburg: Freie Akaemie der Kuenste, 1967). 26. Harmon, Art and Practice of Diplomacy, p. 157. 27. Abraham de Wicquefort, The Embassador and his Functions, with an Introductory Essay by Maurice Keens-Soper (Leicester: Centre for the Study of Diplomacy, 1997), p. 339. 28. The text is in the author’s possession. 29. For details see Juergen Kleiner, Korea. A Century of Change (Singapore: World Scientific, 2001), pp. 215–222.

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30. The quote is from Don Oberdorfer, The Two Koreas. A Contemporary History (Basic Books, 1997), pp. 168–169. 31. For the past see Harmon, Art and Practice of Diplomacy, pp. 157–158. 32. Trevelyan, Diplomatic Channels, p. 82. 33. Dobrynin, In Confidence, passim. 34. United States Information Service, US Embassy, London: Official text, dated November 25, 1997. 35. New York Times, December 22, 2001. 36. The quote is from Nicolson, Evolution of Diplomatic Method, p. 27. 37. The Works of Liudprand of Cremona, translated by F. A. Wright (New York: E. P. Dutton, 1930), The Embassy to Constantinople, p. 235. 38. The Works of Liudprand of Cremona, pp. 237 and 243. 39. Evangelos Chrysos, ‘Byzantine Diplomacy, AD 300–900: Means and Ends’, in Jonathan Shepard and Simon Franklin, Byzantine Diplomacy (Ashgate, 1992) p. 31. 40. Washington Times, December 28, 2004. 41. New York Times, December 30, 2004. 42. Editorial of the New York Times, December 30, 2004. 43. International Herald Tribune, October 8, 1997. 44. Nevile Henderson, Failure of a Mission (New York: Putnam’s Son, 1940), pp. 283–287. 45. Christer Joensson and Karin Aggestam, ‘Trends in Diplomatic Signaling’, in Melissen, Innovation, p. 151. 46. Spiegel online, October 12, 2003. 47. Brajesh Mishra, ‘Walk out of the Dinner and Eat it. A talk at IGNCA’, in Tan Chung, editor, Across the Himalayan Gap. An Indian Quest for Understanding China, 1998, at ignca.nic.in/ks_41052.htm [July 30, 2008]. IGNACA is the acronym for Indira Gandhi Centre for the Arts. 48. Raymond Cohen, Theatre of Power: The Art of Diplomatic Signaling (London and New York: Longman, 1987), pp. 138 and 142. 49. New York Times, January 18, 2004. 50. Der Spiegel online, January 18, 2004. 51. Harold Nicolson, Diplomacy (Oxford University Press, 3rd edition, 1963), p. 113. 52. 5 FAH-1 H-600: Diplomatic Notes with precise examples. 53. See the overview in Satow’s Guide, pp. 41–54, and Barston, Modern Diplomacy, pp. 43–83 with many examples.

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54. John R. Wood and Jean Serres, Diplomatic Ceremonial and Protocol. Principles, Procedure and Practice (New York: Columbia University Press, 1970), p. 185. 55. 5 FAH-1 H-612.2–1 Note verbale. 56. 5 FAH H-612.2–2 Memorandum. 57. 5 FAH-1 Exhibit H-612.2–1I, Third-Person Note Verbale-Embassy. 58. Wood and Serres, Diplomatic Ceremonial and Protocol, p. 195. 59. For the inaugural ceremonies in Washington see McCaffree, Innis and Sand, Protocol, p. 353. 60. See 5 FAH-1 H-612.1 First-Person Notes with an example at 5 FAH-1 Exhibit H-612.1B 61. For the US practice see the examples at 5 FAH-1 H-612.1E 62. Satow’s Guide, p. 49. 63. 5 FAH-1 H-612.2–5 Note Diplomatique. 64. Barston, Modern Diplomacy, pp. 45–47. 65. Copies of the correspondence in the author’s possession. 66. Auswaertiges Amt, Deutsche Aussenpolitik 1990/91. Eine Dokumentation (Muenchen: Bonn Aktuell, 1991), p. 226. 67. Prime Minister and Pope Benedict XVI letters, at diplomacymonitor. com/stu/dm.nsf/dn/dnE703309875074BE38525747E0043289C [August 1, 2008]. 68. Satow’s Guide, p. 45; Barston,Modern Diplomacy, pp. 78–81; 5 FAH-1 H-612.2-3. 69. See the US rules for a pro memoria in 5 FAH-1 H-612.2-4. 70. France diplomatie, The Iranian nuclear issue: Meeting of Javier Solana, EU High Representative for the CFSP, with the Iranian negotiator Saeed Jalili (Geneva, July 19, 2008), at www.diplomatie. gouv.fr/en/country-files_156/iran_301/the-iranian-nuclear-issue_ 2724/meeting-of-mr-solana-with-the-iranian-negotiator-seed-jalili19.07.08_11676.html [August 2, 2008]. 71. French Non-paper: transforming the United Nations Environment Programme (UNEP) into a United Nations Environment Organization (UNEO), at www.diplomatie.gouv.fr/en/france-priorities_1/environment_1097/united-nations-environment-organization-uneo [August 2, 2008]. 72. Canadian Non-Paper on the Process for the Selection of the Next Secretary-General, at www.unsgselection.org/files/Canada+non-paper_ SG_selection.pdf [August 2, 2008].

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73. Non-paper on the WIPO Treaty on the Protection of Broadcasting Organizations, at www.wipo.int/edocs/mdocs/sccr/en/sccr_s2/sccr_ s2_paper1.pdf [August 2, 2008]. 74. 5 FAH H-613.2 Preparation of the Demarche. 75. Satow’s Guide, p. 50. 76. The story is from Felix Gilbert, ‘The “New Diplomacy” of the Eighteenth Century’, in World Politics October 1951, pp. 33–34. 77. Hamilton and Langhorne, The Practice of Diplomacy, p. 150. 78. Nicolson, Evolution of Diplomatic Method, pp. 85–88. 79. New York Times, December 20 and 21, 2003. 80. David Banisar, ‘Freedom of Information Around the World 2006’, at www.freedominfo.org/documents/global_survey2006.pdf [August 3, 2008]. 81. See for example the list of documents regarding the foreign policy and diplomacy of the United States, published by the National Security Archive at George Washington University, at www.gwu.edu/~nsarchiv/ [August 3, 2008]. 82. Thinkexist.com: David Lloyd George quotes, at thinkexist.com/ quotes/David_Lloyd_George [September 9, 2008].

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Name Index

Adenauer, Konrad, 96, 368 Albright, Madeleine, 153, 309 Allende, Salvador, 175 Annan, Kofi, 297, 318, 323, 382 Aoki, Morihira, 132 Arafat, Yasser, 300, 301 Aung San Suu Kyi, 79

Clausewitz, Carl von, 67 Clemenceau, George, 383 Crimmins, John H., 212 Coats, Daniel, 375 Courtney, Michael Aidan, 130 Delors, Jacques, 324 Dobrynin, Anatoly, 45 Dumouriez, Charles François, 383

Baker, James A., 197, 380 Bakoyannis, Dora, 203 Barnes, Harry, 82 Bhutto, Benazir, 380 Bismarck, Otto von, 220 Black, Eugene R., 216 Blackford, Peggy, 235 Brezshnev, Leonid, 152 Bulganin, N. A., 96 Bush, George H. W., 150 Bush, George W., 158, 374 Bushnell, Prudence, 158, 163

Edmondson, William B., 212 Edwards, Jorge, 53, 81 Eban, Abba, 73 Eilts, Hermann, 61 Ericson, Richard, 105 Ferrey, Antenor, 150 Fang, Lizhi, 177, 178 Gelbard, Robert S., 157 Genscher, Hans-Dietrich, 60, 380 Gillon, Carmi, 120 Gleysteen, William H. Jr., 84 Gotlieb, Allan, 79 Gowda, H. D. Deve, 380

Callières, François de, 47, 54 Carter, Jimmy, 152 Castro, Fidel, 90, 96 Chávez, Hugo, 175 Chun, Doo Hwan, 85, 110, 371

461

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Greene, Graham, 266 Gutierrez, Lucio, 175 Hadley, Stephen, 203 Hammarskjold, Dag, 318, 322 Hampstone, Smith, 212 Hanssen, Robert Philip, 92 Hartmann, Arthur, 152 Haya de la Torre, Victor Raul, 172 Henderson, Sir Nevile, 55, 374 Herbst, Axel, 59 Hussein, Saddam, 84, 323

Mahama, Francis Y., 130 Martin, Graham A., 60 Mazel, Zvi, 376 Megawati Sukarnoputri, 158 Metternich, Klemens Wenzel von, 29 Mindszenty, Joseph, 178 Mishra, Brajesh, 375 Moynihan, Daniel P., 309 Mun Se Kwan, 105

Indyk, Martin S., 225

Newsom, David D., 85 Nicolson, Harold, 376, 383 Nixon, Richard M. , 195 Noriega, Manuel Antonio, 150

Jolaoso, Olujimi, 52

Ortega, Carlos, 175

Kant, Immanuel, 81 Kaufmann, Johan, 292 Kennan, George F., 80 Khalilzad, Zalmay, 56 Kim Dae Jung, 84 Kirkpatrick, Jeanne, 83 Kissinger, Henry, 32, 33, 198, 368, 373

Pardos, Jose Luis, 221 Park Chung Hee, 105 Pérez de Cuéllar, Javier, 322 Protic, Milan St., 56 Prueher, Joseph W., 105 Putin, Vladimir, 20

Lader, Philip, 373 Li, Shuxian, 177 Lilly, James, 371 Lodge, Henry Cabot, 309 Lomøy, Jon, 11 Lloyd George, David, 383, 385

Reagan, Ronald, 152, 170, 199, 371 Rice, Condoleezza, 203 Richelieu, Cardinal, 31, 49, 51 Robin, Brian, 221 Rosier, Bernard du, 29 Rusk, Dean, 287

MacKinnon, Philip, 106 Macmillan, Harold, 213 Mao Zedong, 195

Sackville, Lord, 78 Sadat, Anwar, 61 Schieffer, John Thomas, 10

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Name Index 463

Schloezer, Kurd von, 220 Short, Claire, 296 Short, Roger, 260 Shultz, George P., 197 Sontag, Susan, 375 Spreti, Karl von , 135 Stevenson, Adlai E., 309 Strong, Maurice F., 279 Toon, Malcom, 170 Ulbricht, Walter, 108

Waldersee, Count Alfred , 223 Waldheim, Kurt, 322 Wilson, Woodrow, 351, 356, 383 Yang Qilang, 60 Zeng Tao, 60 Zhakiyanov, Galymzhen, 169 Zhou Enlai, 60, 105, 195 Zhou Wenzhong, 105 Zia Khaleda, 87

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Subject Index

ad hoc conferences, 274 ad hoc diplomacy, 193 administrative and technical staff, 118, 124, 127, 142, 143, 254, 309 administrative functions, 16, 232, 318, 320 administrative section, 223–225, 308, 344 administrator (UNDP), 70, 321, 338, 339 Advisory Opinion on Reparations (ICJ), 284 Afghanistan, 20, 24, 39, 100, 101, 112, 158, 230, 269, 281 African Union (AU), 6, 308, 309, 314 agreement, 2–4, 14, 20, 22, 25, 27, 34, 35, 44, 55–58, 62, 63, 66, 95–97, 99, 102, 105, 111, 114, 118, 122, 125, 131, 146, 149, 152, 153, 167, 169, 179, 186, 194, 195, 201, 216, 217, 219, 233, 239, 251, 264, 277, 278, 281, 288–292, 294–300, 304, 311, 312, 314, 315, 321,

324, 329–333, 338–345, 347–351, 353–355, 357, 359, 367 agrément, 118–120, 200, 309 aide-memoire, 3, 91, 377, 380–382 Albania, 176, 189 Algeria, 60, 108, 131, 273 Alliance Française, 64 allocative organization, 319, 321 ambassador, 4, 6, 10, 11, 29, 30, 45, 46, 49, 52–56, 58–61, 68, 79, 80, 82–85, 90–92, 97, 98, 105–107, 113, 118–123, 129, 130, 132, 133, 135, 147, 150, 152–154, 156–158, 163, 169, 170, 193, 201–203, 207–210, 212, 213, 217, 219–221, 225–227, 231, 235, 245, 288, 292, 306, 308, 309, 314, 327, 344, 345, 349, 350, 354, 355, 364, 371,–379 American Presence Post, 99 Amnesty International, 120 Andorra, 15 Antigua and Barbuda, 97, 98

465

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anti-personnel mines, 25, 267, 356, 357 Arab League, 108, 322 archives and documents, 164, 165, 200, 261 Argentine, 266 arrest, 85, 89, 131, 133, 134, 169–171, 177, 178, 238, 239, 256, 257, 312 Asian Development Bank (ADB), 335, 337, 341 Asia-Pacific Economic Cooperation (APEC), 6 Association of Southeast Asian Nations (ASEAN), 6, 79, 291 asylum, 167–181, 308 attaché, 44, 67, 68, 118, 125, 127, 132, 206, 207, 219, 222, 223, 255 attacks on diplomats, 130 Australia, 31, 37, 80, 88, 90, 132, 154, 170, 171, 180, 252, 263, 274, 363 Austria, 64, 68, 289, 294, 295, 315, 329, 330, 332 authentication, 354 Avena and Other Mexican Nationals case (ICJ), 241 aviation issues, 248, 249 bag, 183–187, 262 Baluchistan, 156 Bangladesh, 80, 87, 88 Barbados, 97 Belarus, 80, 90 Belgium, 31, 97, 176, 245, 363 Belize, 97

bilateral diplomacy, 49, 164, 199, 306 blogging, 65 Bolivia, 32, 268 bout de papier, 382 Brazil, 31, 120, 146, 147, 212, 268, 273, 274 British Broadcasting Cooperation (BBC), 58, 65 British Council, 64, 218 bugging, 152–154, 184, 297 Bulgaria, 107, 254, 367 Burundi, 130 Cable News Network (CNN), 58, 59, 65 Cambodia, 31, 109, 114, 115 Canada, 31, 64, 88, 90, 97, 106, 123, 134, 146, 176, 199, 221, 248, 272, 314, 382 Caracas Convention on Diplomatic Asylum, 172–175, 180, 181 career tracks, 43 caretaker embassy, 111 Central Intelligence Agency (CIA), 35, 92, 226, 227 Chad, 71, 108 chairpersons, 274, 288 challenge-and-return principle, 185, 262 chancery, 112, 132, 147, 153, 160, 163, 165, 178, 209, 210 chargé d’affaires ad interim, 98 chargé d’affaires en pied, 53, 81, 117, 123

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chief of mission, 14, 53, 68, 118, 123, 124, 205, 206, 209, 210, 212, 244, 245 child abduction, 237 Chile, 82, 97, 106, 146, 174, 175, 268 China, 14, 60, 71, 96, 104, 105, 109, 110, 115, 143, 159, 171, 177, 178, 195, 196, 268, 269, 273, 274, 280, 290 circular note, 378 civil service, 5, 42–44, 245, 317, 327, 385 classification of consular officers, 255 classification of embassy members, 124 classification of information, 187, 191, 224, 225 clausula rebus sic stantibus, 361, 362 Clusters Munitions Convention, 277 coding machine, 154 Cold War, 67, 69, 91, 111, 127, 152, 280 collective note, 378 Colombia, 172, 174, 235, 268, 281 Colombian-Peruvian Asylum case (ICJ), 172, 174, 178 Common Foreign and Security Policy (CFSP), 41, 308, 325, 343, 381 Commonwealth, 8, 21, 31, 41, 42, 70, 117, 190, 322, 364 commercial diplomacy, 62, 63 commercial section, 213 Commission delegation, 344

467

Commission of Appointment, 253 Committee of the Permanent Representatives (COREPER), 288, 304, 305 Communications, 36, 113, 114, 122, 154, 183–186, 189, 191, 192, 215, 223, 224, 298, 313, 322, 340, 366, 377, 385 communication officers, 124, 254, 309 communiqué, 57, 96, 194–196 conference, 14, 60, 142, 165, 231, 260, 263, 265, 267–272, 274–281, 291, 303, 304, 324, 335, 354, 365, 376, 383 confidentiality, 3, 165, 347, 383, 384 conflict management, 104, 106 Congo, 71, 235, 322 Congress of Vienna 1815, 52, 267, 365 consensus, 291, 292, 354 consul, 18, 19, 46, 75, 80, 81, 90, 171, 230, 231–234, 236–240, 242–249, 252–254, 256–260, 262–266 Consulates, 5, 18, 19, 29, 42, 44, 62, 99, 107, 125, 159, 169, 175, 229, 231, 234, 242–245, 248, 252, 253, 255, 257, 259–263, 265, 309, 379, 385 consular conference, 231, 265 consular functions, 51, 229, 231–233, 246, 249, 254, 257, 258, 263–266 consular post, 164, 231, 251–257, 259, 261–263

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consular relations, 19, 51, 75, 149, 164, 230, 232, 233, 248, 251–254, 256, 263, 264, 268, 281 consul general, 46, 81, 90, 171, 230, 236, 245, 253, 260 consultations, 88, 198, 291, 344 consultative organization, 319, 322 Convention on Consular Relations (CCR), 51, 75, 149, 164, 232, 233, 252, 254, 256, 263 Convention on Diplomatic Relations (CDR), 11, 36, 50, 61, 95, 103, 107, 117, 129, 136, 144, 149, 184, 252, 254, 256, 262, 293, 312, 332, 345, 352 Convention on the Law of Treaties of 1969, 285, 349, 350, 353 Convention on the Law of Treaties Between States and International Organizations of 1986, 284 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, 136 Convention on the Privileges and Immunities of the Specialized Agencies, 295 Convention on the Representation of States in Their Relations with International Organizations, 304 Cotonou Agreement, 345 Council for Mutual Economic Assistance (COMECON), 285

Council of Europe, 295, 303, 313–315, 330, 333 Council of Ministers (EU) see European Council counselor, 118, 226 counter-terrorism, 10, 19, 20, 21, 273 country office, 11, 16, 322, 335, 337, 338, 340 country representations, 335 courier, 185–187, 262 courtesy translation, 366 credentials, 52, 64, 98, 120, 121, 128, 271, 276, 309, 314, 378 credentials committee, 271 Cuba, 81, 90, 92, 96, 107, 108, 113, 114, 154, 175, 176, 227 cultural policy, 4, 32, 59, 64, 219 cultural section, 215, 218 customs, 122, 139, 141, 143, 156, 185, 186, 211, 258, 259, 266, 298, 325, 331, 342, 378 cyber diplomacy, 7 Cyprus, 203 Czechoslovakia, 56, 113, 177, 362 Czech Republic, 64 Dayton Peace Accords, 25 dean (doyen), 122 declaration, 62, 76, 96, 100, 139, 269–271, 273, 348, 360, 384 delegation see Commission delegation democracy promotion, 72, 82, 83 Democratic People’s Republic of Korea (North Korea), 96, 102, 110, 114, 306

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demonstration, 80, 85, 156, 161, 176, 177, 275 Denmark, 64, 92, 107, 125 Department for International Development (DFID), 70 deputy chief of mission (DCM), 123, 212 de-recognition, 109, 110 detention, 73, 85, 131, 170, 171, 238, 256, 312 Deutsche Welle, 65 developing countries, 11, 69–71, 205, 216, 217, 243, 270, 279, 281, 291, 292, 320, 336, 339, 341, 343, 344 development assistance, 11, 12, 15, 16, 24, 32, 51, 68, 69, 70, 71, 87, 108, 124, 198, 215–218, 322, 336, 343, 350 digital diplomacy, 65, 219 diplomacy, definition of, 8, 54, 55, 137, 147 diplomatic agents, 117, 124, 125, 127, 129, 136, 142, 149, 257, 340 diplomatic asylum, 167–170, 172–175, 177, 179–181 diplomatic corps, 37, 103, 122, 125, 127 diplomatic correspondence, 3, 121, 367, 376, 377, 379, 383 diplomatic language, 365, 369, 374 diplomatic list, 125 diplomatic methods, 363, 383 diplomatic missions, 3–6, 8, 23, 27, 32, 36, 41, 50, 52, 57–59, 61–63, 65–67, 71–73, 82, 88, 95, 97, 99, 107, 108, 117, 124,

469

126, 128–130, 134, 138, 141, 147, 149–151, 157, 159, 161, 175, 189, 190, 192, 207, 221, 222, 247, 252, 293, 306, 312, 343, 354, 367, 377–379 diplomatic staff, 117, 125, 129, 142, 143, 156, 160, 310, 326 Diplopedia, 191 director general, 309, 320, 333 disintermediation, 24 dissent channel, 45, 46 documents, 1, 3, 150, 164, 165, 184–187, 200, 225, 242, 246, 247, 257, 261, 265, 270, 273, 276, 279, 280, 284, 313, 331, 366, 367, 379, 384 Doha Round, 14 Dominica, 97, 98, Drug Enforcement Agency (DEA), 89 drug liaison officers, 88 Dublin Group, 88 dues, 118, 139–141 Durban Six, 168, 169 duty cars, 224 duty-free import, 141 Easter Caribbean States, 97, 98 e-archives, 164 Earth Summit, 280 Economic and Social Council (ECOSOC), 25, 86, 270, 274, 305, 336 economic relations, 208 economic section, 113, 208, 214, 215, 307, 344, 348 Ecuador, 90, 101, 175, 176, 268 e-diplomacy, 164, 192

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Egypt, 61, 92, 97, 108, 112, 273 election monitoring, 72 English language, 43, 65, 219 e-mail, 8, 28, 33, 54, 191 embassy, 6, 10, 11, 12, 14, 20, 27, 28, 35, 46, 50, 51, 54, 55–59, 61, 63, 67, 68, 70, 73, 81, 82, 84, 85, 87, 90, 98, 99, 105–107, 109, 111–115, 117–119, 121, 123, 124, 126–128, 131–134, 137, 138, 140, 143, 146–165, 169, 170, 172–180, 182, 184–189, 201–218, 221–224, 226, 227, 229–232, 235, 236, 242, 251, 253–255, 257, 259–262, 264, 265, 278, 298, 306, 308, 322, 340, 342, 344, 352, 372, 373, 377–379, 382 employment of family members, 146 enciphering, 188 equitable geographical distribution, 292, 327 espionage, 61, 92, 126, 134, 332 establishment of diplomatic missions, 99 establishment of diplomatic relations, 95–97, 99, 100, 102, 103, 118, 119, 251 Ethiopia, 97, 308, 339 European Commission, 16, 80, 246, 272, 293, 324, 335, 336, 342, 368 European Communities, 284, 295, 312, 314, 315, 331, 337 European Convention on Human Rights, 171

European Council, 206, 272, 310, 325 European Court of Justice, 289 European Economic Community (EEC), 285, 343 European Parliament, 307, 324 European Union (EU), 6, 14, 15, 23, 33, 39, 51, 79, 99, 195, 217, 252, 274, 284, 288, 291, 299, 303, 307, 309, 310, 324, 330, 336, 337, 342, 343, 348, 366 evacuation, 235 exchange of notes, 112, 348, 355 executive agreement, 351, 354 exequatur, 251, 253–255, 264 external mission, 5, 16, 29, 286, 298, 317, 335–337, 340, 341 exterritoriality, 129 extradition, 20, 57, 90, 136, 198, 347, 351–355 families, 45, 144, 145, 170 favorite nations clause, 252 Federal Foreign Office (Germany), 31 field office, 70, 335, 337, 338, 341 Fiji Islands, 341 finance officer, 21 financial assistance, 69 Finland, 64, 92, 168 flag, 98, 113, 119, 157, 248 Food and Agriculture Organization (FAO), 295, 303, 335 Foreign Affairs Handbook, 206, 376

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Foreign Affairs Manual (FAM), 168, 206, 210 Foreign and Commonwealth Office (FCO), 8, 31, 41, 42, 70, 190 foreign flagging, 248 foreign languages, 3, 43, 65, 364 foreign minister, 3, 6, 7, 14, 32–35, 37, 38, 57, 60, 105, 106, 135, 193, 197–203, 213, 240, 253, 254, 276, 306, 310, 354, 355, 368, 374, 378–380, 382, 383 foreign ministry, 5, 12, 13, 31–33, 35–39, 41, 44, 52–54, 59, 70, 73, 78, 83, 98, 125, 127, 130, 131, 137,, 138, 144, 145, 164, 176, 186–191, 202, 207, 208, 210, 219, 222, 234, 236, 245, 253, 254, 369, 372, 373, 377, 378, 380–382 foreign policy, as content of foreign relations, 1 foreign service, 14, 31, 42–46, 56, 88, 110, 125, 144, 163, 192, 206, 209, 210, 225, 226, 232, 309, 363, 364, 377, 379 foreign service personnel, 42, 45, 110, 163 France, 14, 15, 19, 37, 38, 49, 52, 56, 59, 64, 90, 97, 99, 101, 106–110, 145, 168, 169, 176, 177, 193, 199, 205, 219, 223, 245, 246, 290, 296, 329, 352, 380, 382 fraud, 244, 245, 360 freedom of communication, 5, 183, 200, 262, 298, 313 French language, 365

471

Friendly Relations Declaration, 76 friendship associations, 64, 220 Fulbright, Commissions and Foundations, 64 functional immunity, 137, 259, 266, 330, 342 functional personality, 285 Gambia, 235 G8 summits, 268, 275, 278–281 General Assembly (UN), 21, 26, 62, 86, 199, 272, 274, 287, 288, 290, 300, 301, 306, 310, 314 General Convention, 294, 295, 297, 311–313, 329–333, 340 Georgia, 253 German Consular Law, 244, 247, 249 German Democratic Republic (GDR), 108, 112, 114, 128, 271, 280, 315, 359, 372 German Foreign Service Act, 14 Germany, 13–15, 19, 31, 37, 39, 53, 56, 62–65, 68, 70, 80, 91, 92, 95–97, 99, 107, 108, 110, 112, 114, 115, 120, 123, 126, 128, 132, 135, 138, 139, 141, 142, 145, 146, 160, 168, 169, 176, 177, 185, 193, 199, 201, 205, 206, 215, 217, 222, 223, 227, 236, 237, 240, 241, 244, 246, 248, 251, 253, 255, 263, 272, 306, 313–315, 349, 352, 359, 360, 372, 374, 375, 380 Ghana, 130, 273 globalization, 17, 18, 24, 28, 29, 267

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Glocal Forum, 23 Goethe institutes, 64 good governance, 11, 69, 321, 340, 349 Greece, 56, 64, 80, 177 Grenada, 97, 98 G20, 274 Guatemala, 97, 135, 264 Guinea-Bissau, 235 Hague Convention on the Civil Aspects of International Child Abduction, 237 Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, 247 Hainan case, 104, 106 Haiti, 264, 336, 339 head of mission, 61, 98, 117, 121, 123, 126, 139, 147, 149–151, 163, 179, 352, 378 head of government, 193, 194, 201, 202, 339 head of state, 52, 61, 108, 121, 123, 128, 193, 194, 201, 202, 213, 253, 254, 354, 355, 376 headquarters agreement, 294–300, 304, 311, 312, 329 high commission, 80, 117, 185, 335 Holy See, 96, 102, 103, 117, 120, 122, 179, 220, 314, 380 Honduras, 67, 97 honorary consul, 231, 252, 253, 263–266

humanitarian assistance, 71, 72, 339, 374 human rights, 12, 15, 26, 30, 34, 51, 59, 72, 73, 75, 83–87, 90, 101, 171, 180, 202, 212, 307, 314, 349, 357, 370 Human Rights Commission, 86, 357 Human Rights Council, 87 human rights treaties, 86, 87, 180, 357 Hungary, 64, 90, 96, 115, 177, 179, 361 Iceland, 64, 99, 113 immigration, 19, 22, 29, 39, 230, 243, 245, 308, 310, 313, 331, 342, 378 immunities see privileges and immunities independence, 12, 50, 68, 73, 76, 80, 83, 112, 189, 286, 291, 297, 299, 324, 326–328, 352, 360 Indochina, 195, 196 Indonesia, 14, 85, 157, 158, 236, 274 industrialized countries, 6, 29, 66, 69, 272, 292, 344 information and communication technology, 8, 17, 66, 98, 188, 190, 191, 192, 209, 376 Inman report, 162 intelligence, 20, 35, 39, 90, 92, 120, 125, 153, 154, 207, 226, 227, 260, 297 interdependence, 9, 11, 28, 62, 75, 87, 93

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interests section, 112–115 interference, 9, 11, 12, 28, 62, 71–73, 75–79, 81, 82, 84, 86, 87, 89, 93, 149, 155, 174, 179–181, 183, 212, 260, 281, 297 International Atomic Energy Agency (IAEA), 103, 295, 329, 332, 336 international civil service, 5, 317, 327, 385 International Committee of the Red Cross (ICRC), 25, 71 International Court of Justice (ICJ), 130, 131, 133, 151, 160, 165, 172, 174, 178, 179, 239–241, 284, 356, 361, 362, 377 International Covenant on Civil and Political Rights, 86, 359 International Fund for Agricultural Development (IFAD), 292 international governmental organization, 1–3, 26, 29, 35, 39, 42, 71, 103, 146, 217, 269, 283, 292, 293, 296, 297, 299, 303, 304, 306, 308, 313, 317, 319, 321, 329, 333, 335, 337, 338, 343, 345, 347, 348, 367, 379, 381, 384, 385 International Labor Organization (ILO), 295, 317, 335 international law, 18, 50, 51, 52, 62, 77, 80, 84, 100, 101, 103, 129, 131, 135, 160, 161, 167, 173, 185, 199, 201, 233, 237,

473

249, 252, 269, 284, 285, 299, 314, 333, 347, 348, 350, 353, 355, 361 International Law Commission, 51, 185, 199, 333 International Maritime Organization (IMO), 248, 319 International Monetary Fund (IMF), 71, 291, 335 international officials see international civil service international secretariat, 317 International Telecommunication Union (ITU), 103, 319 international treaty see treaty International Tribunal, 295, 297, 298, 329 internet, 24, 28, 190, 209, 221 interpretation, 8, 24, 76, 89, 113, 155, 241, 255, 257, 275, 276, 284, 285, 311, 319, 321, 359, 366–369, 376 interview, 1, 37, 56, 209, 219, 220, 230, 374 instructions, 2, 3, 5, 12, 26, 36, 50, 53, 54, 56, 77, 78, 85, 156, 164, 169, 184, 188, 208, 209, 224, 275, 289, 305, 310, 326, 348, 371, 379, 383 intervention, 4, 5, 27, 36, 37, 39, 49, 54, 63, 73, 76, 77, 84, 85, 107, 137, 170, 178, 180, 214, 239, 245, 295, 323, 378, 380 investment promotion inviolability see privileges and immunities

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Italy, 64, 99, 101, 103, 107, 112, 177, 199, 272, 295, 312, 329 Iran, 6, 85, 106, 108, 111, 114, 120, 126, 130, 131, 136, 160, 173, 269, 281, 293 Iraq, 20, 24, 39, 108, 112, 128, 150, 151, 155, 156, 281, 318, 341, 344 Ireland, 31, 263 Israel, 21, 32, 85, 108, 112, 158, 225, 226, 300, 373 Jamaica, 97 Japan, 9, 10, 14, 19, 65, 88, 105, 109, 145, 171, 193, 199, 200, 268, 272, 307, 314, 341, 345, 352 Jordan, 235, 264 journalists, 72, 194, 203, 213, 220, 275, 373 Kazakhstan, 148, 169 Kenya, 163, 212, 272, 294, 312, 329–331 kidnapping, 19, 29, 91, 92, 211, 235, 236, 239 Kosovo, 106, 107, 281 Kuwait, 128, 150, 151 Kyoto Conference on Global Warming, 268 LaGrand case, 239 landmines, 25 Latin, 3, 167, 168, 172, 174, 175, 180, 292, 337, 365 Latin America, 167, 168, 172, 174, 175, 180, 292, 337 Latvia, 92, 367

lawful means, 4, 61, 67 League of Nations, 263, 351, 356, 383 legal functions, 18, 19, 80, 232, 246 legal personality, 103, 284, 285, 296, 309, 342 legation, 95, 117, 159 legates, 52, 118 letters, 3, 95, 96, 101, 120, 198, 353, 377–380 Libya, 106, 123, 133, 151, 384 Lithuania, 87 Luxembourg, 288 Macedonia, 56 Maldives, 99 Morocco, 60, 106 Mauritania, 108 media, 2, 7, 24, 34, 37, 58, 59, 64, 65, 83, 120, 164, 198, 203, 219, 220, 230, 235, 238, 264, 275, 278, 290, 325, 348, 373, 383–385 mediation, 131 memoranda, 3, 12, 38, 95, 349, 379 memorandum of understanding, 349, 350 Mexico, 64, 90, 97, 101, 103, 175, 230, 241, 273, 274, 314, 374 Middle East, 14, 21, 66, 83, 198, 203, 222, 281, 374 migration, 12, 19, 69, 243 military attaché, 67, 68, 132, 222, 223 military relations, 51, 66 ministerial visit, 203 Montenegro, 314

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Montevideo Convention, 77, 172, 175 Montserrat, 98 Morocco, 60, 106 multilateral diplomacy, 14–16, 18, 199, 267, 306 multinational corporation (MNC), 17, 24, 26, 27 multiple accreditation, 97–99, 252 Myanmar, 21, 22, 71, 110, 111, 154 nationality, 126, 237, 239, 242, 265, 333 narcotics control, 88 negotiation, 4, 15, 25, 35, 50, 54, 55, 57, 58, 67, 96, 132, 154, 180, 194, 196–198, 201, 217, 236, 248, 278, 280, 287, 292, 293, 305, 342, 347, 348, 357, 359, 369, 371, 373, 381–384 Netherlands, 99, 263, 295, 329 New Caledonia, 90 New Zealand, 41, 224, 225, 363 Nigeria, 53, 79, 98, 99, 206, 230, 273 non-diplomatic staff, 129, 142, 143 non-governmental organization (NGO), 24, 25, 72, 80, 82, 269, 271 non-interference, 12, 76, 77–79, 84, 174, 281 non-member states, 16, 285, 286, 303, 309, 313, 336, 342 non-paper, 3, 377, 381, 382 Norway, 11, 64, 70, 88, 92, 236, 263, 349, 350, 354

475

note, 8, 86, 105, 109, 112, 119, 128, 185, 239, 254, 262, 263, 274, 296, 359, 377–380 note diplomatique, 379 notetakers, 203 note verbale, 119, 128, 254, 377–379 nuncio, 52, 103, 118, 130 nunciatures, 117 observation, 29, 58, 86, 347 observer mission, 286, 300, 303, 314, 315 official languages, 366, 367 open diplomacy, 3, 383, 384 organization chart, 40 Organization for Economic Cooperation and Development (OECD), 26, 66, 290, 291, 303, 320, 321, 330, 336 Organization for European Economic Cooperation (OEEC), 320 Organization for Security and Cooperation in Europe (OSCE), 103, 283, 303 Organization of American States (OAS), 100, 303, 317 Organization of the Petroleum Exporting Countries (OPEC), 283, 291, 292 Organization of Islamic Conference (OIC), 291, 335 pacta sunt servanda, 350 Pakistan, 24, 26, 36, 56, 57, 71, 80, 81, 89, 97, 100, 109, 141, 147, 154, 156,

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206, 230, 237, 260, 269, 370, 375, 380 Palau, 15 Palestine, 122, 300, 314 Palestine Liberation Organization (PLO), 300 Panama, 150, 151, 175, 253 Papua New Guinea, 97 parliamentary diplomacy, 15, 29, 287 passport, 19, 64, 80, 173, 233, 242, 243, 257, 265, 331 peacekeeping, 307, 323, 324 permanent mission, 185, 286, 287, 289, 292, 300, 304–311, 315, 326, 338 permanent observer, 49, 303, 313–315 persona non grata, 3, 11, 12, 61, 67, 75, 76, 80, 81, 89–91, 93, 127, 128, 134, 156, 200, 254, 258, 311, 380 Philippines, 171, 236 Poland, 64, 92, 111, 177, 375 political foundations, 82 political section, 85, 210–212, 229, 307 pouch, 183, 184, 186, 224, 257, 262 preamble, 52, 129, 161, 256, 287, 350, 352 precedence, 13, 98, 122, 125, 139 premises, 99, 109, 112, 147–152, 155, 156, 159, 161, 163–165, 167, 169, 171, 179, 180, 189, 200, 224, 235, 259–261, 296–298, 352

presentation of credentials, 52, 121 press, 4, 12, 28, 37, 58, 60, 65, 203, 209, 212, 219, 220, 229, 230, 308, 367, 371 prison, 106, 126, 132, 135, 158, 238 private servants, 118, 142–144 privileges and immunities, 93, 112, 118, 122, 126, 129, 142, 144, 200, 231, 232, 255, 256, 293–296, 298, 299, 301, 304, 310–313, 315, 328, 329, 330, 332, 333, 337, 338, 340, 341, 345, 378 proliferation (of weapons), 35, 211, 280, 281 pro-memoria, 381 promotional organizations, 320 protected state, 111, 112, 114 protecting nationals, 233 protecting state, 111, 112, 114 protection of diplomats, 5, 130, 131, 136, 158, 200, 226, 256, 261, 298, 334, 340 protocol, 4, 37, 38, 39, 120–122, 137, 201, 241, 296, 299, 312, 315, 331, 345, 348, 351, 355, 378, 380 public affairs section, 218, 219 public diplomacy, 7–9, 37, 38, 43, 64, 66, 113, 191, 221 public relations, 7, 51, 55, 59, 65, 99, 123, 124, 146, 194, 197, 207, 209, 221, 257, 307 rank-in-person system, 42 rapporteur, 271

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ratification, 350, 351, 353–356, 380 recalling, 105–107, 109 recipient countries, 216 reciprocity, 93, 114, 136, 141, 348 recognition, 100–102, 109, 110, 112, 119, 128, 280, 285 recommendation, 6, 10, 57, 86, 269, 271, 290, 321, 348 regional groups, 122, 292 registrar, 124, 246, 254, 309 registration of treaties, 356 registry, 164 regulatory organizations, 319 Renaissance, 49 reporting, 4, 28, 36, 38, 58, 59, 61, 68, 86, 203, 205, 209, 211, 222, 229, 230, 314, 379 representation, 30, 51, 52, 84, 99, 108, 109, 111, 115, 129, 234, 240, 268, 304, 307, 308, 333, 382 Republic of Korea (South Korea), 66, 86, 96, 102, 110, 114, 306 reservation, 331, 332, 357–359 residence, 132, 134, 137, 138, 147, 149, 150, 151, 160, 184, 242, 243, 265, 312 resident coordinator, 16, 339, 340 resident diplomats, 49, 201 resident representative (UNDP), 16, 336, 339 resolution, 21, 26, 151, 267, 284, 287, 293, 300, 318 Rhodesia, 112 Romania, 64, 90, rotation, 44, 45, 272

477

rules of procedure, 270, 271, 275–278, 287, 297, 321, 323, 347 rupture, 103, 107, 253 Russia, 14, 57, 60, 67, 91, 92, 193, 199, 200, 253, 268, 272, 274, 290, 352 Russian Pentecostalists, 170 Rwanda, 108 safe conduct, 174–176, 181 sales tax, 141 San Marino, 15 Saudi Arabia, 100, 274 Schengen treaty, 245 science and technology promotion, 215, 274 secretariat see international secretariat Secretary General (UN), 136, 296, 297, 300, 318, 322, 382 secretary of state, 32, 33, 38, 71, 153, 197, 203, 240, 349, 353, 354, 380 security clearance, 225, 226 Security Council, 16, 76, 151, 290, 292, 293, 305, 307, 315, 318, 322, 323, 327, 369, 381 Security in the Government Sector (Manual), 224 Senegal, 235, 273 senior foreign service officers, 42, 43 Serbia, 83, 106 services staff, 42, 43, 118, 124, 142, 143, 226, 254, 255, 259, 309 sherpa, 272, 275, 279 shipping, 39, 232, 248

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Sierra Leone, 185 signaling, 4, 375, 376 Singapore, 79, 97, 98 Slovenia, 106, 367 soft power, 78 Solomon Islands, 80, 97 Somalia, 71 South Africa, 21, 168, 212, 273, 274 South Vietnam, 60, 101, 128 sovereignty, 19, 73, 75, 76, 89, 101, 140, 173, 179, 238 Soviet Union, 95, 96, 119, 153, 154, 178, 184, 185, 195, 256, 270, 280, 372, 380, 383 Spain, 64, 97, 101, 106, 146, 176, 200, 221 Special Committee on Agriculture, 288 special envoy, 193, 197, 198, 201, 306 specialized agencies, 16, 26, 270, 271, 295, 303. 312, 314, 329, 336 special missions, 5, 149, 193, 199–201, 208 speeches, 1, 12, 28, 37, 85, 209, 231, 276, 278, 367, 372, 375 spouses, 146 spying, 67, 91, 92, 154, 191 Staff Regulations (UN), 327, 328 State Department (USA), 14, 20 33, 35, 37, 42, 43, 44, 46, 56, 69, 70, 145, 146, 163, 168, 190–192, 226, 255, 263, 364, 376 Standard Basic Assistance Agreement (UNDP), 338 St. Kitts and Nevis, 97

St. Lucia, 97, 98 Stockholm Conference on the Human Environment, 268–270 St. Vincent and the Grenadines, 97, 98 submissions, 12 sub-national diplomacy, 21–23 Sudan, 71, 80, 106, 108, 158, 273, 281 summit meetings, 193, 194, 197, 208, 269, 272, 275 supranational organization, 15 Supreme Court (USA), 241 Switzerland, 64, 111, 113, 140, 168, 185, 248, 294–296, 299, 311–314, 329–332 Sweden, 64, 92, 111, 114, 133, 168, 252, 170, 376 Syria, 91, 108, 159 Taiwan, 64, 109, 110, 195, 196 Tajikistan, 269 Taliban, 20, 100, 101 Tanzania, 11, 349, 350, 354 taxes, 118, 139–141, 143, 144, 259, 298, 330, 331, 345 technical assistance, 57, 69, 217, 321, 336, 338 telecommunication networks, 188 telegram, 54, 188, 191 telegraphy, 188 telephone, 28, 54, 104, 107, 125, 183, 188, 189, 192 television, 4, 28, 37, 58, 64, 371 telex, 188, 191 temporary refuge, 168, 177–179

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territorial state, 17, 173, 174, 178, 180, 293, 294, 297, 299, 329, 340 terrorism, 10, 19, 20, 21, 28, 29, 39, 83, 106, 268, 273, 300, 369 Tiananmen square, 28, 73, 177 Timor Leste, 314, 341 tourism, 12, 19, 62, 234 town twinning, 23 track-two diplomacy, 26 trade promotion, 23, 62 traffic regulations, 134 transit, 187, 243, 262, 299, 300, 313, 320, 329, 331 translation, 64, 319, 321, 353, 366–369 translators, 3, 44, 124, 255, 369 treaty, 4–6, 25, 55, 57, 58, 62, 86, 95, 103, 172, 180, 198, 245, 252, 269, 283, 284, 290, 291, 293, 296, 303, 304, 310, 317, 319, 325, 329, 343, 344, 347–362, 365, 380, 382 treaty bodies, 86 Treaty of Elysée, 198 Tupa Amaru guerrillas, 132 Turkey, 81, 106, 177, 197, 274 Turkmenistan, 269 Ukraine, 90 understandings, 356, 359, 360 Union of South American Nations (UNASUR), 268 United Arab Republic, 186 United Kingdom, 8, 14, 19, 31, 37, 38, 42, 64, 67, 91, 103, 106, 110–114, 123, 125, 126, 133, 139, 142, 145, 152, 160,

479

169, 191, 193, 199, 215, 218, 235, 236, 237, 263, 272, 289, 290, 296, 373, 380, 384 United Nations, 11, 14, 16, 21, 25, 33, 56, 68, 83, 84, 88, 92, 95, 136, 180, 217, 269–272, 283, 284, 290, 292, 294, 296, 300, 303–308, 311, 313–315, 318, 321–324, 333, 335–337, 339, 351, 356, 357, 361, 367, 378, 383 United Nations Children’s Fund (UNICEF), 71, 217, 335 United Nations Development Programme (UNDP), 11, 16, 68, 88, 217, 321, 322, 335–338, 340, 335 United Nations Educational, Scientific and Cultural Organization (UNESCO), 296, 303, 312, 320, 329, 331, 336 United Nations Emergency Force, 318 United Nations Environment Programme (UNEP), 294 United Nations High Commissioner for Refugees (UNHCR), 71, 335 United Nations Industrial Development Organization (UNIDO), 329, 330, 335, 336 United Nations International Drug Control Programme (UNDCP), 335 United Nations Population Fund (UNFPA), 217, 335 United Nations Treaty Series (UNTS), 356

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United States, 6, 9, 10, 13, 14, 19, 23, 31, 32, 35, 37, 38, 42, 43, 46, 62, 63, 66, 67, 70, 71, 78, 85, 88, 92, 96–98, 102, 104–108, 110, 112, 113, 120, 121, 126, 130, 131, 134, 139, 141, 142,. 145, 149, 150, 151, 153, 157–161, 167, 168, 169, 176, 177, 178, 189, 191, 193–196, 198–200, 203, 205, 207, 210, 215, 222, 226, 229, 230, 236, 237, 239, 241, 245, 252, 253, 261, 263, 267, 268, 272, 290, 294, 300, 301, 306, 308, 311, 314, 329, 331, 332, 349–353, 360, 371, 374, 377, 380, 384 United States and Consular Staff in Teheran (ICJ), 151 United States Agency for International Development (USAID), 70, 71 Universal Postal Union (UPU), 16, 103, 317, 319 UN Secretariat, 25, 26, 292, 318, 322, 324, 329, 340, 349, 356, 365, 367, 383 Uzbekistan, 269, 340 Vanuatu, 97, 98 Vatican City, 103 Venezuela, 64, 67, 90, 97, 175, 268, 363 Vietnam, 60, 61, 101, 128, 196, 313 virtual embassy, 98

visa, 18, 19, 35, 54, 59, 124, 162, 203, 221, 233, 242–246, 255, 257, 265, 299, 300, 308, 310 voting, 276, 290–292, 299, 300, 315 waiver, 139, 203, 258 Warsaw Pact, 51 weapon sales, 223 web sites, 8, 37, 65, 204, 207, 209, 221, 222 Western European Union (WEU), 303 Westphalian system, 17 wireless transmitters, 188, 189 working language, 3, 365, 367 World Bank, 57, 71, 216, 217, 274, 291, 321, 335 World Food Programme (WFP), 297, 312 World Health Organization (WHO), 320, 335 World Intellectual Property Organization (WIPO), 103, 299, 329, 382 World Meteorological Organization (WMO), 319 World Trade Organization (WTO), 14, 296, 297, 311, 330, 331, 333 World Wide Web, 4, 59, 65 Yugoslavia, 97, 108, 119, 253, 256 Zaire, 235 Zimbabwe, 79, 184