DIPLOMACY

1. DIPLOMACY

2. Lecture Plan • Definition of diplomacy • History of Diplomacy • Forms of Diplomacy • Diplomatic Relations • Consular Relations • Settlement of Disputes by Diplomatic Methods • Diplomacy and IGOs

3. Definition of Diplomacy “Diplomacy is a process of communication and negotiation among official representatives of approximately 200 states and about 450 IGOs for the purposes of maximizing cooperation and minimizing conflict” Conway W. Henderson

4. History of Diplomacy • Diplomacy, in the form known today, had its start within the Italian city-state system in the XV century. • Important development of different forms of diplomacy are related with the Peace of Westphalia (1648), Congress of Vienna (1815), Versailles Conference (1919). • Vienna Convention on Diplomatic relations was adopted in April 1961 and entered into force in April 1964. There are more than 180 parties to the Convention. It is one of the most widely ratified international treaties. Much of the Convention reflects existing customary international law

5. Forms of Diplomacy • Bilateral and multilateral diplomacy • Summit diplomacy • Shuttle diplomacy • Preventive diplomacy • Coercive diplomacy • Track-two diplomacy

6. Diplomatic Relations • Diplomatic relations are established by virtue of mutual consent. • The sending state must ensure that the consent (agrément) of the receiving state is given for the proposed head of the diplomatic mission. The reasons for any refusal do not have to be given. • The head of the diplomatic mission takes up his functions in the receiving state upon presentation of credentials. • The receiving state may at any time declare any member of the diplomatic mission persona non grata without having to explain its decision.

7. Functions of Diplomatic Missions • Representing the sending state in the receiving state; • Protecting in the receiving state the interests of the sending state and its nationals, within the limits permitted by international law; • Negotiating with the Government of the receiving state; • Ascertaining by all lawful means conditions and developments in the receiving state and reporting thereon to the Government of the sending state; • Promoting friendly relations between the sending state and the receiving state and developing their economic, cultural and scientific relations.

8. Diplomatic Privileges and Immunities • The inviolability of the diplomatic mission – the premises of the mission are inviolable and the agents of the receiving state are not to enter them without the consent of the head of the diplomatic mission. • The archives of the diplomatic mission are inviolable wherever they may be. • The premises of the diplomatic mission, including their furnishings and the means of transport are immune from search, requisition or execution. • Free communication – the receiving state shall permit and protect free communication on behalf of the diplomatic mission for all official purposes. Official communication is inviolable and may include the use of diplomatic couriers and messages.

9. Diplomatic Privileges and Immunities • Diplomatic agents are inviolable and may not be arrested of detained. This principle is one of the most fundamental principles of diplomatic law. • The receiving state must treat diplomatic agent with due respect and must take all appropriate steps to prevent any attack on his person, freedom or dignity. • A diplomatic agent enjoys immunity from the criminal, civil and administrative jurisdiction of the receiving state. • A diplomatic agent is not obliged to give evidence as a witness. • The immunity of a diplomatic agent from the jurisdiction of the receiving state does not exempt him from the jurisdiction of the sending state.

10. Settlement of Disputes by Diplomatic Means Diplomatic methods include: • Negotiations • Good offices • Mediation • Inquiry • Conciliation • Settlement by the United Nations

11. Diplomatic methods of dispute settlement - negotiation • The simplest and the most utilised method to resolve differences is negotiation; • Negotiation means discussions between interested parties with a view of reconciling divergent positions; • The parties are directly engaged; • Successful negotiation requires a certain degree of mutual goodwill, flexibility and sensitivity.

12. Diplomatic methods of dispute settlement – good offices and mediation • Good offices and mediation involve the use of a third party- a state, a group of states, an international organisation or an eminent individual – to encourage the disputing parties to come to a settlement. • The use of third party to settle disputes between states can be traced back to ancient Greeks. Similar means were also employed in ancient China and in Arabia. • Good offices: • good offices are involved when a third party attempts to persuade the disputing parties to enter into negotiations and resolve their dispute; • good offices end when negotiations start; • good officer does not participate in negotiations; • the use of good offices is not obligatory and the offer of good offices is not binding for the disputing parties;

13. Diplomatic methods of dispute settlement – good offices and mediation • Mediation: • in comparison with good offices, a mediator is more active and actually takes part in negotiations suggesting terms of settlement to the disputing parties; • a mediator has to enjoy the confidence of the disputing parties and must be impartial/neutral; • no effective mediation can be provided without the consent from the disputing parties; • the use of mediation is not obligatory and the suggestions made by mediators are not binding for the disputing parties; • examples: • mediation of the Pope in the Argentina – Chili territorial dispute over the Beagle Channel; • mediation by the USSR between India and Pakistan in 1966; • mediation of Algeria to end the hostages crisis between the USA and Iran; • US mediation between Israel and Egypt in 1979 in Camp David; • mediation of the UN Secretary General in Cyprus.

14. Diplomatic methods of dispute settlement – good offices and mediation • The success of third party involvement in the settlement of international disputes depends on the influence and persuasive power of the third party. • Good offices and mediation are not always easy to distinguish in practice.

15. Diplomatic methods of dispute settlement - inquiry • Many international disputes involve questions of fact. • Disputing parties may agree to appoint an impartial ad hoc body to produce a finding of disputed facts and to prepare the way for a negotiated settlement. • The parties are not obliged to use inquiry or to accept the findings of the inquiry, but almost always do accept them. • Example: Dogger Bank incident between Russia and Britain in 1904.

16. Diplomatic methods of dispute settlement - conciliation • Conciliation involves elements of mediation and inquiry. • A third party (a commission set up by the parties) investigates the facts of a dispute and submits a report containing a suggested terms of a settlement. • Conciliation is more formal and less flexible than mediation. • Most conciliations were performed by commissions composed of several members but occasionally states may prefer a single conciliator. • The use of conciliation, the report and recommendations made are not binding for the disputing parties. However, in practice, there some treaties providing for obligatory use of conciliation.

17. Settlement by the United Nations • Under the Charter of the United Nations states are obliged to settle their international disputed by peaceful means. • Article 33 sets out the various methods states may pursue to settle their disputes. It requires the disputing parties to “seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their choice”.

18. Settlement by the United Nations • The Security Council, which has primary responsibility for the maintenance of international peace and security has the right to determine if a dispute or situation is likely to endanger international peace and security (Art. 34). • In that case, the Security Council can call upon the disputing parties to settle their dispute. • The Security Council may also recommend the terms of settlement if the disputing parties so request (Art. 38). • The Security Council has employed a variety of diplomatic techniques to resolve international disputes. It has frequently called upon the parties of a dispute to negotiate, it has provided good offices, and has mediated in many international disputes.

19. Settlement by the United Nations • The UN Secretary General may also play a role in resolving disputes between states. • The UN Secretary General may alert the Security Council to situations which, in his judgment, are likely to threaten international peace and security. The Secretary General has provided good offices and mediation in many international disputes. • The UN General Assembly may recommend measures to avert a situation which is likely “ to impair the general welfare or friendly relations among nations” • The General Assembly may not take action if the Security Council is already seized with the matter.