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author: Geoff Berridge

Diplomatic Interference and the Law

2016

Q: ‘Why will there never be a coup d’état in Washington? A: Because there’s no American Embassy there.’ This old joke serves to highlight the belief – entrenched deeply in poor, weak states – that diplomatic missions too often meddle in the ‘internal’ or ‘domestic’ affairs of the countries in which they are located, sometimes with dramatic consequences. It is a view that was held in the years following the Second World War by the former Yugoslavia, then struggling to extricate itself from the Soviet orbit, and prompted it to press successfully for the codification of diplomatic law. Emerging in the shape of the Vienna Convention on Diplomatic Relations (VCDR) signed in 1961, this duly gave prominence to the duty of those enjoying diplomatic privileges and immunities not to interfere in the internal affairs of the state in which they were posted (Art.41.1). But later developments, particularly the strengthening of human rights law, has caused controversy over this subject to increase rather than diminish, and this is the first reason why the appearance of this book by Paul Behrens, a Lecturer in Law at the University of Edinburgh, is so valuable. The other reasons are that the law remains vague on the question, that this is the first attempt to give it serious and comprehensive attention, and that the book is very good indeed.
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The author believes that international lawyers have hitherto been disposed to give too much weight to the rule of non-interference, which obviously favours receiving states, and either overlook or unduly minimise the legal arguments that in some circumstances entitle and even oblige those benefiting from diplomatic privileges and immunities to meddle in the ‘internal affairs’ of their hosts. By examining the evolution of customary law on the subject, which he maintains is indispensable since conventional law on it is more or less useless, it is his aim to provide a set of practical ‘guidelines’ for lawful diplomatic interference. The contents list of his work, which can be seen on the publisher’s website here, shows at a glance how he has gone about his difficult task.

Behrens takes a broad view of ‘internal affairs’ (on the definition of which the VCDR is silent); in other words, he adopts a view indulgent to receiving states because it includes the formulation by governments of their foreign as well as their domestic policies. Nevertheless, he also insists that international law entitles diplomats to interfere in the domestic processes by means of which these policies are arrived at, not least on the basis of the list of functions given to them by the VCDR itself. Most important among these, he maintains, are the protection of the sending state’s interests in general and of its nationals in particular, observation and reporting, and the promotion of friendly relations with all of the citizens of receiving states. As for the more controversial question of the entitlement to interference on the basis of human rights law, he points out that – quite apart from the erga omnes obligations by which states are bound – the VCDR’s list of diplomatic functions is admittedly not exhaustive and that, in any case, diplomatic interference to protect human rights is readily embraced by traditional functions, especially observation and political reporting, and protection of the sending state’s interests (large scale human rights abuses can have serious impacts on neighbouring states in particular, especially if fighting induced by such abuses spills outwards, they are inundated with refugees, and the regional economy suffers); it is useful to be reminded that a few states appoint ‘human rights attachés’ to some of their embassies. When the ‘restrictive’ (on diplomats) rule of non-interference meets ‘permissive’ (for diplomats) rules such as these, the author favours conciliatory rather than confrontational methods to resolve them; in crude summary, he argues that conflicts of this sort are best managed when diplomats interfere in the manner least likely to provoke their hosts – always provided it is as efficient as any other realistic method. This theme is elaborated at some length in Part II of the book: ‘Fields of Diplomatic Interference’ (better understood, I think, at least for the non-lawyer, as ‘forms’ of interference).

I have just a few reservations of substance about this generally splendid work, and one of a more technical character.

The latter, which I shall take first, concerns the ‘Timeline of Diplomatic Interference’ in Annex A, a sort of calendar (Oxford English Dictionary, sense 4e) of instances of diplomatic interference from April 1961, when the VCDR was signed, until April 2014, the half centenary of its entry into force. Stretching to a full 110 pages, this contains the bedrock of evidence on which the author bases his argument for the evolution of customary law. Its contents are thus of immense importance and set the book apart from the more superficial treatments of its subject that tend to be the norm. But was the inclusion in the publication of what is in effect a working paper of such length really necessary? Having compiled this calendar and had it always at his elbow, could not the author have referred readers to the key sources via footnotes at first mention of the cases? As it is, including this Annex must have put up the price of the book considerably (although it is still well below that of many law books), thereby helping to put it beyond the reach of those many diplomats from poorer countries who would benefit greatly from reading it. But never mind! Including the full list shows the author’s (unfashionable) honesty and makes his argument more readily testable. Furthermore, in any future paperback edition, which I hope very much will appear, the Annex can safely be deleted because reference can be made to the appropriate pages in the hardback. By way of a footnote to this point, however, it is a pity that – in view of the importance of the Annex – and despite the authority it provides by the very large number (300) of well documented cases it contains, the author fails to include a reminder in its short preamble of why an exhaustive list (which would in any case be an impossibility) is not necessary. For this, the reader needs to go back to pages 19-23 of the Introduction, where the (surmountable) problems involved in establishing the ‘generality’ of practice and legal opinion required of customary law are clearly and authoritatively discussed. Having said this, I was a little surprised to find no cases listed concerning South Africa until 1987, although after the Sharpeville shootings in March 1960 apartheid became for many years probably the cause célèbre of diplomatic interference.

As to reservations of substance, all of which are relatively minor, I note merely two. First, I think it seriously over-optimistic for the author, when introducing his ‘guidelines’ at the end of the book, to state baldly that the demands of the (sophisticated) legal framework he has advanced will not ‘pose insurmountable challenges to Foreign Ministries, who can rely on the knowledge of the resident experts in their legal departments’ (p. 267). Unfortunately, I think it probably true that most foreign ministries don’t even have legal departments, let alone ones with any great expertise; this is the conclusion at which I arrived in researching and revising the chapter on the foreign ministry in my textbook. Second, I think the argument that diplomatic interference is sometimes justified by lawful allowance for the promotion of ‘friendly relations’ between states as well as their governments would have benefited from discussion of the key concept here. True to character, the VCDR also fails to define ‘friendly relations’, and in this regard the author follows suit. However, in the Palgrave Macmillan Dictionary of Diplomacy we took the view that its first sense is ‘normal’ or civilized relations and only its second sense the ‘warm’ relations signified by friendship among humans. In short, it’s easier to justify to a receiving state diplomatic contacts with its opposition groups if this is done in terms of friendly relations sense (1) rather than sense (2).

But these are very minor quibbles. In the round, this book displays great learning, immense research, clear-sighted judgment, and – more than once – an attractive turn of phrase. All students of diplomacy are greatly in the author’s debt, and the guidelines he provides for practitioners at the end are carefully worked and succinctly expressed. A paperback edition soon, please!

A 20 per cent discount on this book is available here by quoting ref: CV7.

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