Module 6: Diplomacy and International Law

Diplomacy is nothing new. In some form, diplomatic exchange has existed for as long as different groups of people have needed to settle disagreements or establish rules and/or protocols for interaction with other groups of people. At the most basic level, diplomacy is exercised in the space that exists between groups that are neither kept in check by tribal bonds, nor some form of overarching authority. Early forms of diplomacy sought to extend imperial influence, defend political interests, and routinize regional affairs. This evolved into practices of one state seeking to influence the decisions and behaviour of other states through dialogue and negotiation. Soon, states were creating permanent embassies and stationing ambassadors in other states deemed to be important to its interests. The intent of diplomacy is to enhance state power and influence without resorting to force and preferably without generating resentment. Diplomacy seeks to routinize relations between actors, seeks to establish relationships, and therefore build goodwill that can be called upon in future contact. When this fails, and war erupts, diplomats seeks dialogue, peace, and eventually reconciliation. In the long arc of history, diplomacy seeks to establish global order. And it is through this order seeking intention that diplomacy is connected to international law. International law seeks to order relations between states through the establishment of rules, norms, and standards. These govern the relations first and foremost between states but also increasingly other international actors such as MNCs and NGOs. It is important to note that international law is very distinct from domestic law because of the anarchic nature of the international system. In the domestic case, law is most often drafted by the legislative branch of government, enacted and enforced by the executive branch of government, and evaluated and applied by the judicial branch of government. In other words, a state makes laws and enforces them, meting out punishment for those who break the law and are caught. International law on the other hand, is highly political. It is often more of a standard that others are expected to live up to. Unlike domestic law, there is no overarching global authority to enforce international law. The closest thing to a global authority is the UN Security Council but it is both hamstrung by disunity and questionable legitimacy. However, that is not to say international law is without effect. Most states, most of the time, conform to international law. Doing so reduces the costs of doing business, whether that be political, economic, or military action. But when a state does break international law, the consequences can often depend on who the transgressor is and what law is broken. Unlike the domestic example, some actors such as the 5 permanent UN Security Council members, are to a degree above international law. When such disorder erupts, we come full circle, with the diplomats attempting to restore order and often leading to new agreements, new institutions, and perhaps even new international law.

As already suggested, diplomacy is not new. It has existed for as long as groups have sought to order with other groups. In Ancient China, cultural diplomacy was exercised, notably during the Hundred Schools of Thought from 771 BCE to 476 BCE. This is also called the Warring States period, a bloody period that only ended with the consolidation of power in the Qin Dynasty. One of the more important schools of thought established in this period was a School of Diplomacy. It focused on the practical aspect of diplomacy instead of any moral basis, training orators and tacticians.

In Ancient Greece, between 800 BC and 500 BC, diplomacy was exercised in the open with envoys addressing audiences in public forums. These envoys would seek to convince others of the righteousness of their cause. The purpose of these interactions were temporary, seeking alliance against threats. The Ancient Romans, from 753 BC to 476 BC, would develop diplomatic traditions around respect for treaties, acting in good faith, the importance of personal contacts, and developing formal protocols.

However, the diplomacy of the Chinese, the Greeks, and the Romans was markedly distinct from modern diplomacy. The Chinese may have sought to extend their influence via cultural diplomacy, but such practices were reserved for internal rivalries. They viewed foreigners as barbarians and as such formal relations were only possible if the superiority of Imperial China was recognized in advance. It would not be until 1861 that China allowed western style embassies to be established on Chinese soil. The transparency and openness of Ancient Greek diplomacy is more akin to advocacy than modern diplomacy. Roman diplomacy, while full of ritual and ceremony, was often less about achieving compromise and more about conquest. In this sense, Roman diplomats played the good cop to the Imperial Roman Army’s bad cop. Ancient diplomatic traditions crossed over to nascent contemporary diplomacy through Byzantium, from 330 to 1453. Past practices of pomp and ceremony were professionalized through an organized bureaucracy. An intelligence service was created and combined with regular diplomatic reporting. An early form of international law was established with regional neighbours. Cumulatively, Byzantine diplomacy introduced predictability and order.

These practices would be adopted and expanded upon by the 15^th century Italian city-states. There was no dominant city-state and all feared the intrigue of the others. This is the period of Niccolo Machiavelli and ‘The Prince’. Machiavelli sought to root the practices of state and of diplomacy in how the world really was versus how we think it should be.

How we live is so different from how we ought to live that he who studies what ought to be done rather than what is done will learn the way to his downfall rather than to his preservation.

In seeking to advance their interests, the city-states introduced concepts and practices that have continued into contemporary diplomacy. They established permanent ambassadors to keep an eye on each other. These ambassadors would present their credentials to the ruling head of state. They were housed in embassies which were considered extraterritorial. This meant embassies were considered to be on their home-soil and therefore bound only by their own laws and customs, not that of the host state. Ambassadors were granted privileges and immunity. Through this system, these city-states established a primitive balance of power between themselves.

This early Italian system began to be replicated within Europe with the Spaniards being the first to send a permanent representative abroad in 1487, to the Court of St. James, the royal court of the sovereign in the UK. This broader European system was advanced by France, and came to be known as the French System which lasted until the First World War. The French established the first ministry of foreign affairs in 1626. They promoted a standardized system with a hierarchical structure of professional titles that were recognized by all parties. This system was realized during the Congress of Vienna in 1815. Protocols were established, titles were recognized, a balance of power was established and maintained through Great Power diplomacy. This diplomacy was secretive, agreements were arrived at behind closed doors with discretion becoming the norm. This allowed compromise to happen without external pressure and diplomats to be frank with one another. As the French System matured, patronage and nepotism became less common, eclipsed by a trained diplomatic corps supported by a formalized ministry of foreign affairs. The French System of diplomacy would facilitate almost 100 years of peace in Europe through the Concert of Europe.

However, a key short coming of the French System was its primary reliance on bilateral treaties and negotiations arrived at in secret. A weakness glaringly revealed with the onset of the First World War. These 19^th century secret treaties prepared the ground for the first global war by locking states into alliances: the Treaty of London 1839, the German-Austrian treaty of 1879, the Franco-Russian Alliance of 1894, The Triple Alliance of 1882, the 1905 Entente Cordial. While certainly not determinative, this diplomatic activity created a framework which put the Great Powers into potential conflict, culminating in the First World War.

Early contemporary diplomatic practices can be traced to the negotiations of the Treaty of Versailles in 1919. The French System of diplomacy had been held, at least in part, responsible for the First World War. The secret treaties in particular were identified as having created a domino effect: when Austria-Hungary attacked Serbia, two opposing networks of alliances kicked in, drawing in the Great Powers, and leading to the Great War. US President Woodrow Wilson addressed this in Congress with his Fourteen Points, which formed the basis of the American negotiation position at Versailles. Point one argues for “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.”

This was enshrined in the League of Nations Article 18:

Every treaty or international engagement entered into hereafter by any Member of the League shall be forthwith registered with the Secretariat and shall as soon as possible be published by it. No such treaty or international engagement shall be binding until so registered.

It had been intended that the League of Nations would be the primary vehicle for enhanced transparency and a renunciation of the use of force to achieve political goals. However, this ‘new diplomacy’ was short lived given the American’s refusal to join the League and the return in Europe of professional diplomats pursuing the national interest. The secret additional protocol to the Molotov-Ribbentrop Pact of 1939 was a prime example of the return to the tradition of secret diplomacy. In the protocol, Germany and the Soviet Union agreed to divide up Eastern Europe into respective spheres of influence. The United Nations included a similar provision regarding the registration of international agreements, in UN Charter Article 102:

1. Every treaty and every international agreement entered into by any Member of the United Nations after the present Charter comes into force shall as soon as possible be registered with the Secretariat and published by it.
2. No party to any such treaty or international agreement which has not been registered in accordance with the provisions of paragraph 1 of this Article may invoke that treaty or agreement before any organ of the United Nations.

REGISTRATION AND PUBLICATION OF TREATIES

1. Treaties shall, after their entry into force, be transmitted to the Secretariat of the United Nations for registration or filing and recording, as the case may be, and for publication.
2. The designation of a depositary shall constitute authorization for it to per form the acts specified in the preceding paragraph.

However, neither the UN Charter nor the Vienna Convention on the Law of Treaties go as far as the original Article 18 of the League of Nations which stated treaties were not binding until they were registered. Thus, even if prohibited, non-registered agreements are still binding. Modern diplomatic practices were codified in 1961 through the Vienna Convention on Diplomatic Relations, ratified by 179 states. At the broadest level, the convention defines the five functions of diplomatic missions:

1. To represent the sending state in the host state
2. To protect the interests of the sending state and the nationals of the sending state in the host state
3. To negotiate and sign agreements on behalf of the sending state when authorized to do so
4. To lawfully gather information on the conditions of the host state
5. To promote goodwill and friendly relations between states

Since the 1960s, diplomacy has both been simplified and complicated by globalization. Technological globalization has simplified diplomacy in that diplomatic actors are able to coordinate much more easily with political decision makers. It also allows greater access to information and therefore potentially better decision making. However, the explosion in new international actors and their transnational character has also greatly complicated diplomacy. MNCs have annual budgets that rival states. Civil society actors are increasingly active and networked. International institutions provide a number of significant platforms for diplomatic activity. Issue areas, from peace to economics to human rights, have become increasingly interdependent. In response, the practice of diplomacy has specialized, including the fields of economic diplomacy, trade diplomacy, cultural diplomacy, and public diplomacy. What has emerged is two tracks of diplomacy: club diplomacy and network diplomacy. Club diplomacy is the traditional and rarified world of the elite in the diplomatic corps. These are the ambassadors and the like, who work behind closed doors in the pursuit of the national interest as defined by the government of the day. In contrast, network diplomacy mirrors the increasingly decentralized networks that globalization empowers. Network diplomacy is much broader, including a range of actors, and acts more transparently. Instead of a singular national interest, network diplomacy sees the complex interdependence at the core of the globalized world. It is the challenge of contemporary diplomacy to blend both the logics of club and network diplomacy to address the increasing number of transnational issues.

Public International law is often perceived as a paradox. Due to the anarchical nature of international system, there is no over-arching authority to enforce agreements, never mind ‘law’. From this perspective, the national interest and the distribution of power in the system is more determinative of what actors do and what norms or laws they will conform to. This is emphasized when actors, often the Great Powers, ignore international law for their own ends; take the illegal 2003 American invasion of Iraq or the Russian occupation of Crimea in 2014.

Yet, in many ways, these are the exceptions that prove the norm. States, and their diplomatic corps, spend a lot of resources in establishing treaties and laws. Most states, most of the time, adhere to these international norms, standards and laws once constituted. When an actor is caught in breach of international law, other states are quick to condemn them, citing the appropriate laws. In turn, these states are often quick to justify their actions. This paradox can be addressed if we define international law as an institution that seeks to generate ordered and stable relations among states and other international actors. In other words, it is in the interest of most states, most of the time to adhere to international law. It allows states to coordinate on functional issues, from mailing a letter to dealing with global health pandemics. It allows states to cooperate on threats, from organized crime to WMDs. When a state or other international actor breaches international law, either because they believe they won’t be caught or no one will contest their action, other states and international actors need to decide whether the cost of enforcing compliance is worthwhile or even possible. And it is this uncertainty of consequences and enforceability that reinforces the paradox that we introduced above.

However, it is important to note that international law is also a historical construct. It developed out of European political contestation. As discussed in module 4, European monarchies had legitimated their rule through the law of divine right whereby their authority was ordained by God. Subjects were also ruled by the Church. This shaped early international law, defined through the law of nature, as top down divine principles of conduct. The monarchy should adhere to international law not because of self-interest nor because of the need to fulfill promises, but rather because it was God’s will. This absolutist state and ecclesiastical power was challenged by the rise of the sovereign state. Subjects became citizens and institutions of democratic governance arose. Through these social transformations, international law also evolved. Much like the transformation of domestic politics towards democratic accountability, international law came to be legitimated by consent of the parties involved. This was called ‘positive’ law, based on negotiation and adhered to because of contractual obligation. Positive law is the most clear-cut category of public international law. If a state signs an agreement and is found in breach of that agreement, it has broken international law. The penalties for doing so may vary according to the original agreement and the relative weight of the parties involved, but a clear case can be made that the law was in fact broken. The Vienna Convention on Diplomatic Relations is an example of positive international law as it was negotiated and ratified by 191 states. However, this is not the only form of international law that has legal force. International actors, and states in particular, are also bound by customary international law. Customary international law derives from the norms which are constituted by the repeated practices of states and other international actors. In other words, if a particular practice is repeated enough times by enough states, it becomes considered normal practice and therefore a source of customary international law.  As such, it is binding on all states regardless of who signed what. For example, the extraterritoriality of embassies was codified in international law in 1961. However, as we discussed earlier, extraterritoriality had been an international norm for a long time and would have qualified as customary international law much prior to this.

The mainstay of international law has traditionally concerned the issue of war. These laws are normally divided into jus ad bellum and jus in bello. Jus ad bellum deals with the question of whether the use of force is legitimate, based on five criteria. The first deals with the question of proper authority and declaration. Only the sovereign state can authorize the use of force and it must be declared by the state. Second, there must be just cause. Self defence is a just cause, for example the 2001 US invasion of Afghanistan, as is humanitarian intervention, for example the 2011 intervention in Libya.

Third, there has to be a reasonable chance of success. Without a reasonable chance of success, the use of force would only cause unjustified bloodshed and misery on non-combatants. Fourth, the use of force must be proportional to the stated objectives. Often questions of collateral damage are raised here as was in the case of the US strike on a hospital in Kunduz in Afghanistan in 2015. Finally, the use of force must be the last option. This is an important debate surrounding when to use sanctions, peacekeeping, or war. Claims of Jus ad Bellum have been greatly reduced since the signing of the UN Charter. Under Chapter 7 Article 51, only ‘self defence’ remains a legitimate reason for states to use force. According to Chapter 7 Article 42, all other military action must have a UN Security Council mandate to be legal. However, the US invasion of Iraq and Russian involvement in Georgia and Ukraine suggest this may no longer be the case. Similarly, terrorist organizations such as al Qaeda and ISIS question the utility of Jus ad Bellum. Jus in Bello deals with the conduct of war, surrounding three areas: weapons, combatants, and non-combatants. Regarding weapons, there are laws for example on the use chemical and biological weapons, cluster bombs, mushroom bullets, and anti-personnel landmines.

Regarding combatants, the four Geneva Conventions (1864,1906, 1929, 1949) and the associated protocols (1977 and 2005) deal for example with the rights of the wounded and prisoners of war.

Regarding non-combatants, the Geneva conventions are also operative, for example outlawing the intentional targeting of non-combatants and making the use of rape in war an international crime.

However, as is happening in the case of Jus ad Bellum, the behaviour of the US in the Global War on Terror, Russian behaviour in a number of theaters including Chechnya and Syria, as well as the behaviour of the Taliban, al Qaeda, and ISIS are putting pressure on Jus in Bello. For example, the use of torture, so-called enhanced interrogation techniques, by the US in Abu Ghraib or Guantanamo Bay clearly violate the spirit, if not the text, of the Geneva Conventions.

Finally, to understand the current debates surrounding international law, it is necessary to address its increasingly supranational intentions that has been driven in part by globalization. Up until the last couple of decades, international was restricted to the inter-state level. First, states are the primary subject of international law. They were considered to have legal personality and were the principal bearers of rights and responsibilities at the international level. Second, states are also the primary agents of international law: the actor with the authority to draft and sign international agreements. Third, international law is primarily concerned with the relations between states and, due to sovereignty, it had specifically excluded what happened within states. Finally, international law is primarily concerned with questions of order and in the past had excluded questions of justice. This meant, for example, addressing questions of territorial integrity but excluding questions of human rights. However, these basic tenets have increasingly come under pressure. The privileged position of the state has been undermined by the recognition of individuals, groups, and organizations as legitimate subjects of international law. This is seen in the increasing importance of international human rights law, which came to a crisis point with the tragedies of Rwanda and Srebrenica in the mid 1990s. In Rwanda, over 600,000 people were killed between April and July of 1994. In Srebrenica, a supposed UN safe zone in the Bosnian War, 8,000 Muslims were massacred in July of 1995.

This led to a serious debate on the connection between state sovereignty and human security. As then Secretary General Kofi Anan argued in his 2001 Nobel Lecture,

Public Domain via https://commons.wikimedia.org/wiki/File%3AKofi_Annan_2012.jpg

A genocide begins with the killing of one man — not for what he has done, but because of who he is. A campaign of ‘ethnic cleansing’ begins with one neighbour turning on another. Poverty begins when even one child is denied his or her fundamental right to education. What begins with the failure to uphold the dignity of one life, all too often ends with a calamity for entire nations.

In this new century, we must start from the understanding that peace belongs not only to states or peoples, but to each and every member of those communities. The sovereignty of States must no longer be used as a shield for gross violations of human rights. Peace must be made real and tangible in the daily existence of every individual in need. Peace must be sought, above all, because it is the condition for every member of the human family to live a life of dignity and security.

This led the to the creation of the International Criminal Court (ICC) through the Rome Statute and the International Commission on Intervention and State Sovereignty which resulted in the Responsibility to Protect.

The ICC has a mandate to prosecute individuals for the crimes of genocide, war crimes, and crimes against humanity. R2P sets out the responsibility of the state vis-à-vis its citizens, the responsibility of the international community to assist states in carrying out its responsibility to its citizens, and, ultimately, the responsibility of the international community to intervene in the domestic affairs of a state when that state is unable or unwilling to protect its citizens from gross abuses of human rights. This last point has the potential to be the most transformative as it declares an emerging norm that state sovereignty is not absolute but rather conditional on the state fulfilling fundamental obligations to its citizens. If the ICC and R2P become fully realized, then international law is taking on a increasingly supranational role, eroding the sovereign protection of states. The supranational intention of public international law has also been facilitated by other factors of globalization, generating for example distinct bodies of international environmental law and international migration law.

However, the supranational intention of international law faces two obstacles. The first obstacle is the issue of commitment by the international community and more importantly the Great Powers. While the rhetoric of the supranational intention of international law uses universal language and speaks to the obligations of the international community, it is somewhat lacking in practice. Yes, R2P was invoked in the case of Libya in 2011. However, the travesties of the Syrian Civil War which began in 2011 and the treatment of the Myanmar Rohingya in 2017, seriously question the will of the international community to commit to these emerging norms. If the international community has a responsibility to protect civilians from gross abuses of human rights, where are they in Syria? There have been more than 400,000 people killed so far. How about for the ethnic cleansing of half a million Rohingya in Myanmar?

The second, but connected issue is the western bias and dominance of international law. For many, international law is seen as less about universal values and more about privileging western values, in support of a western system, that empowers western actors. Again, look at R2P. Does its application in Libya have to do more with western interests that it does about humanitarian intervention? And why has it not been used in clear cut cases of human rights abuse? This leaves international law at a bit of a crossroads. It has an established body of practice to facilitate inter-state order. But the application of supranational practices to facilitate issues of humanitarian justice are still emerging, and may yet flounder.

Some form of diplomacy has existed since people first formed groups and sought to interact with other groups. It seeks to promote the national interest of states without having to resort to the use of force. It has evolved over time to become highly ritualized and routinized. Embassies have become permanent and extraterritorial. Ambassadors and the diplomatic corps have been granted immunity. Contemporary diplomacy seeks to establish standing relations between international actors, promote good-will, and the means to resolve disagreements without the use of force. In the long arc of history, diplomacy seeks to establish global order. Globalization is challenging traditional club diplomacy and emphasising a new network logic. This is the challenge to contemporary diplomacy, to blend the club and network logics to facilitate global order. This intention of facilitating order is shared by public international law. International law is best understood as a global institution that seeks to generate ordered and stable relations among states and other international actors. It allows states to coordinate and cooperate on international issues. More recently, public international law has been extending past an inter-state focus on order into supranational issues of justice.  Instead of states being the only subject and agent of international law, other actors are playing a larger role including individuals, groups, and organization. This is best seen in things like R2P and the ICC. However, the rhetoric and practice of international law is at a crossroads and questions of commitment and legitimacy are very real. Together, both diplomacy and international law have been a powerful means to reduce global disorder and both are currently important actors in addressing issues of global justice. However, the former is much more robust and the latter is much more tenuous.

The French system is the European diplomatic system characterised by secret diplomacy and the first permanent resident embassies that began in Renaissance Italy and prevailed until the end of the First World War. It represents the increasingly professionalized staffing and conduct of the diplomatic corps. The French system was very significant in the 1815 Congress of Vienna and the subsequent Concert of Europe. However, its lack of transparency and privileging of secret diplomacy would be a contributing factor to World War One.

Club diplomacy is the characteristic of high diplomacy or traditional diplomacy. It is very selective in who is included and hierarchical in structure, often including only the diplomatic corps and state decision makers. It has low transparency in order to allow frank discussion. Its main purpose is to negotiate and sign treaties and agreements. Club diplomacy is still very relevant in the matter of states and of generating global agreement on specific issues.

Network diplomacy reflects the complex interdependence of the globalized world. It is defined by multi-stakeholders and has a relatively flat structure. It has high transparency and actively seeks the input of the various stakeholders. Network diplomacy argues that global issues are so complex and impact so many different groups that finding sustainable solutions must err towards inclusivity versus exclusivity.

 Positive law is based on negotiation and adhered to because of contractual obligation. Positive law is the most clear-cut category of public international law. If a state signs an agreement and is found in breach of that agreement, it has broken international law. The penalties for doing so may vary according to the original agreement and the relative weight of the parties involved, but a clear case can be made that the law was in fact broken.

Customary international law derives from the norms which are constituted by the repeated practices of states and other international actors. In other words, if a particular practice is repeated enough times by enough states, it becomes considered normal practice and therefore a source of customary international law.  As such, it is binding on all states regardless of who signed what.