Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
Satow's Guide to
Diplomatic Practice
Edited by
Lord Gore-Booth
Assistant editor
DesDlond PakenhaDl
~~~
----
JII~~
~
LonglDan
ISBN 0
5~2
50109 1
Contents
Preface
Biographical note on Satow
Acknowledgements
Abbreviations
BOOK I
Chapter
3
4
5
6
7
8
BOOK 11
Chapter
9
10
I I
12
13
14
15
16
17
18
19
20
21
22
23
24
25
IX
Xli
XIV
..
XVll
DiploDlacy in general
Diplomacy
Privileges and immunities of the head of a foreign state
The minister for foreign affairs
Precedence among states and similar matters
Titles and precedence among sovereigns
Maritime honours
The language and forms of diplomatic intercourse
Credentials and full powers
3
9
12
20
27
36
38
55
67
76
82
89
94
106
120
135
143
15 1
156
161
174
18 7
19 2
199
204
BOOK III
Chapter 26
27
BOOK IV
Chapter 28
29
30
31
32
33
BOOK V
Chapter 34
35
36
37
38
39
40
41
42
43
44
Appendix i
..
11
111
IV
v
VI
Consular matters
The appointment of consuls
Functions, privileges and immunities of consuls
21 1
216
International transactions
Congresses and conferences
Treaties and other international instruments - I General
definition
Treaties and other international instruments - 11 Pact,
Constitution, Charter, Statute, Regulations, Concordat,
Additional Articles
Treaties and other international instruments - III Act,
General Act, Final Act, Modus Vivendi,
Compromis d' Arbitrage
Treaties and other international instruments IV Ratification, Accession, Acceptance and Approval
Treaties and other international instruments V Reservations, Notice of Termination and Registration
284
International organisations
The collective third party
The United Nations: A way of life and work
The United Nations - I The Charter and its operation
30 9
3 11
3 15
229
23 6
253
258
27 0
347
356
368
380
39 1
43 8
44 2
457
466
47 2
47 6
486
48 7
Notes
Bibliography
Index
48 9
5 22
53 2
343
Preface
To be invited to revise a masterpiece is a daunting challenge. For Sir Ernest
Satow's Guide to Diplomatic Practice is without doubt a masterpiece. The book he
wrote in the years after his retirement in 1905 went far beyond statements of
fact and law; he infused into the work a lively sense of living with people who
were not all good or famous diplomats, but human beings who behaved in
human ways according to their various characters and the spirit and letter of
their times.
When this editor was invited to supervise a fifth edition of Satow, the
publishers had already sought advice of some fifteen experts. Among the useful
and authoritative comments received, there were, it seemed, two imperatives.
Satow V must be ( I) as near to Satow I as possible and (2) as radically unlike it
as feasible. The paradox was inevitable. Satow set a particular genre and it
would be quite wrong to abandon it: on the other hand, since the fourth (1957)
edition, some passages have had to be rewritten, others have become archaic
rather than historically useful and have had to be omitted, while several new
chapters have had to be added.
It took this editor only a very short study of the book to realise that he would
not be able to manage without a partner. It might have had a contemporary
air if I had sought someone who knew nothing whatever about the subject to
be a kind of heckler-in-attendance on the editor. But after all, in respect of this
book, the diplomat or the student ofdiplomacy is both the supply and demand,
the participant and critic, so I asked the British Foreign and Commonwealth
Office whether they might know ofany recently retired colleague who might be
suitable, interested and available. The list included Desmond Pakenham, who,
apart from a taste for literary work, had served in countries which I did not
know and had an eye for detail which I thought I possessed myself and found I
did not. I would like to express my profound gratitude for his help and his
company throughout the exercise.
revIsion. The most momentous was a triple event in the 1960s, the three
Conferences in Vienna which in effect revised and brought up to date the
settlements made at the Congress of Vienna in 1815 at which so much of the
international law governing diplomatic practice had been drawn up. The work
of the Conferences held in the 1960s necessitated the rewriting of almost the
whole of the chapters which form Chapters 9-2 I and 26-33 of the present
edition. Acknowledgements are expressed below. In this process, we transposed
the previous Chapter IX, 'Advice to diplomatists', to the end of the book; it
seemed gratuitous to give the diplomat advice before he knew even a small
fraction of what he was being advised about. At the end of Book 11, we felt we
must insert some of those things which represent, in some cases regrettably,
features of later twentieth-century diplomacy. Sir Neville Bland, who so ably
edited the fourth edition, wrote in his preface (p. v) that, in his time,
'the accepted "practice of diplomacy" had received some rude blows from which, in
some respects, it has never recovered.'
Xl
GORE-BOOTH
Si r Ernest Satow
Ernest Mason Satow was born at Clapton, Essex, in 1843. He was the son of a
Swedish merchant who had settled in England, and an English lady, Margaret
Mason. In his studies at University College, London, he read at an early stage a
borrowed copy of Laurence Oliphant's Narrative ofthe Earl ofElgin's Mission to
China. This aroused in him a desire to know Asia. In 186 I he came first in an
examination for a student interpretership in the Far East. He was assigned to
the British Consular Service in Japan.
After a short stay in Peking for Chinese studies, Satow arrived in Japan in
1862, nine years after the 'opening up' of that country by Commodore Perry to
foreign presence and commerce. He found himself in the midst of the violent
struggle between the partisans of the Shogun, or chief of government, and the
Emperor, which involved constant physical danger to foreign residents in
Japan. The victory of the Emperor's party ushered in the great Meiji
Restoration period, in which Japan, after three centuries of isolation,
assimilated with incredible seriousness and rapidity skills developed during
those centuries in the Western world. For over twenty years Satow's linguistic
expertness, together with his adventurous travels (including shipwreck ofT the
port of Hakodate) and his personal qualities, gave him a most remarkable
position among Japanese of all backgrounds, and contributed greatly to the
standing of the British Embassy in Tokyo.
In 1884 Satow was posted to Siam (Thailand) and subsequently to Uruguay
in 1888 ('nothing to do') and Morocco in 1893. But a man with an uniquely
expert knowledge of both Chinese and Japanese language and civilisation was
bound to go back to the Far East, and Satow found himself in Tokyo
(1895-1900) and Peking (1900-6), in both places as Minister and Head of
Mission. In these last two posts he performed most distinguished service,
though, as the years went on, the claims and ambitions ofFar Eastern and other
Powers took the situation out of the control of diplomacy or peaceful foreign
policy.
On 25 July 1906, three months before his retirement from the Diplomatic
Service, Satow was received in audience by King Edward VII. 'On my going
away,' he recorded, 'His Majesty said that my services would receive
recognition. Later in the day came a notice that I was to be sworn a member of
the Privy Council.' 'I value it,' he wrote to an old friend, 'more than anything
else that could have been given me. It was The King's own idea.'
In 1907 Satow represented Britain at the Second Hague Conference on
Xlll
International Peace. For the rest of his life, he lived quietly at his home in
Devonshire, devoting his time to study and writing. He never married. He died
in 1929, having lived a full and fruitful life as a member of that rare calling, the
Scholar-Diplomat. As H. W. V. Temperley put it, 'He wrote various studies on
international law and history, and delivered his final message in a work full of
practical wisdom, legal acumen and antiquarian knowledge, entitled A GUIDE
TO DIPLOMATIC PRACTICE'
Acknowledgements
A book of this kind is essentially the work of a great many people, starting with
the original author and continuing through the many people who may have
helped him and subsequent editors to keep later editions as complete and up to
date as possible. This edition is no exception, and the present editors would first
like to express a most sincere thank you to all those people, and there are so
many of them, who have contributed anything from a chapter or more to a
chance remark containing just the information or inspiration needed at the
particular moment.
Far the greatest amount of the help needed came from myoid department,
the Foreign and Commonwealth Office in London. Provided the department
were willing - and they were abundantly so - this was inevitable. For ifone is to
produce a modern edition of this book, such contemporary information as one
uses must be reliable, and it is not possible to acquire all the publicly usable
information that exists and is needed, unless an official source is available.
Having said this, I must make it clear that nothing in the way of opinion or
judgement expressed in the book is attributable to anyone but its editor, unless
it happens to be a direct quotation from an identified source.
In the Foreign and Commonwealth Office, I am most grateful, first of all, to
Sir Thomas Brimelow (later Lord Brimelow), Permanent Under-Secretary of
State in the FCO 1973-5, who gave the project every encouragement when I
explained it to him. His successor Sir Michael Palliser, continued that
encouragement, and both of them made it clear that, subject always to the
requirements of the Office itself, I could enjoy freedom of access to any
members whom I felt I needed to consult, or from whom I could fairly ask a
contribution.
Of all departments of the Foreign and Commonwealth Office, our greatest
debt is to that of the Legal Advisers. Since, as explained in the Preface, the
entire corpus of international law regarding the privileges and immunities of
diplomats and the forms and modalities of international intercourse had been
revised in the 196os, we had no option but to invite the Legal Advisers, some of
whom had participated in these proceedings, to rewrite chapters for us. This
they willingly and skilfully did.
We owe to them immeasurable gratitude, particularly to Sir lan Sinclair,
the chief Legal Adviser, who, with Mrs Eileen Denza, did most ofthe writing; to
Mr Henry Steel, who gave invaluable help on United Nations matters; and to
Mr David Anderson, who rewrote the very important chapter on the
xv
International Court ofJustice. I must not fail to add Sir Gerald Fitzmaurice,
British member of the International Court ofJustice and former Legal Adviser
to the British Foreign Office, whose wisdom and authority were a constant
support.
We were also greatly dependent on the Protocol Department for their expert
and up-to-date knowledge of the present state ofProtocol. It may sometimes be
supposed that Protocol is eternally static; in fact it changes, if slowly, all the
time, whether on the initiative of heads of state, governments or heads of
missions. We are most grateful to The Marshal of the Diplomatic Corps, Lord
Michael Fitzalan Howard, and to Mr Roger du Boulay and Mr Geoffrey
Collins, Head and Deputy Head of Protocol in London, for their guidance.
On historical matters it has been especially valuable to be able to have
recourse at any time to the learning and advice ofMr Rohan Butler, Historical
Adviser to the Foreign and Commonwealth Office, whose immense fund of
historical knowledge was particularly relevant to our subject.
On United Nations matters we have three special debts. First arising from a
meeting in N ew York, Mr Blair Sloan. the Head of the Legal Department of
the United Nations, was kind enough to furnish me with selected material
about certain points on the structure and functioning of the organisation.
Mr Sidney Bailey was good enough to read through a great deal of the
manuscript in draft, and his criticisms, remarkable for their courteous
frankness, were invaluable.
In the United States Department of State, I am most indebted to Mr
Hampton Davis, the Assistant Head of Protocol, for not only giving me
generously of his own time, but also for arranging meetings at which I was able
to talk with a number of his colleagues about problems of modern diplomatic
administration, especially in physically difficult circumstances. A further
special indebtedness to the United States Diplomatic Service is for the help
given to me personally by the Honorable Joseph N. Greene,Jr in ensuring the
accuracy of the account given in Chapter 23 of the most intricate diplomatic
situation in Cairo in the years 1967-73.
We benefited from talking to colleagues from other countries and would like
to express our thanks to the Ambassador of France in London, HE Monsieur
]acques Beaumarchais , to the Swiss Ambassador, HE Dr Ernesto Thalmann
and to the Charge d'Affaires of the United States Embassy in London, the
Honorable Ronald I. Spiers, for information furnished on specialised points;
and to HE Mr Seiro Kawasaki, Japanese Minister at Ankara, for his interesting observations on accreditation by and to the EEC.
The rewriting of the chapter on the Commonwealth of Nations needed
considerable expert support which was given by Mr John Chadwick, Director
of the Commonwealth Foundation, by Lord Garner, formerly Head of the
Diplomatic Service, and by Mrs Beryl Chitty of the Commonwealth
Coordination Department of the FCO. We owe them all particular thanks. We
are indebted to Sir Frank Roberts for his advice on the section dealing with
NATO, and to Mr Gerald Mansell, now Deputy Director-General of the
British Broadcasting Corporation, for his specialised help with the chapter on
radio and Diplomacy.
In the Foreign and Commonwealth Office itself we owe a special debt to Mr
xvi
Nicholas J arrold of the United Nations Department for his help over the long
chapter on the United Nations and to Mr Adrian Russell for expert advice on
consular matters. We are grateful to the Hon. David Gore-Booth, Mr John
Penney, Mr M. A. Patterson and Mr R. A. Longmire for giving us the benefit of
specialised knowledge. Many members of geographical and functional
departments also provided indispensable information without which a proper
standard of accuracy could not have been maintained. One wishes one could
thank individually each one of the many people who at one time or another
contributed knowledge, experience, comment or advice, and we can only
assure them that lack of personal mention signifies no lack of gratitude. But in
concluding these expressions of thanks to our colleagues, we would like to
mention our special gratitude to the Librarian of the Foreign and Commonwealth Office, Mr Bernard Cheeseman, and his deputy and, later, successor,
Miss Eily Blayney, who were always courteously helpful, and to Mrs Fleur
Campbell of the Library for her exceptional prowess in locating sources of
reference which must have saved us innumerable hours of work.
Finally, I owe a quite special tribute to my wife Patricia who, mostly during a
series of air journeys, read through, with me, the entire first proof copy of this
book.
Abbreviations
ACABQ
ASA
ASEAN
BBC
BFSP
BTO
CEEC
CENTO
CINCHAN
CMEA
CMG
COMINFORM
CSCE
ECAFE
ECLA
ECOSOC
ECWA
EOC
EEC
EFTA
ELDO
ESCAP
ESRO
EURATOM
EUROCONTROL
FAO
FRG
GATT
GPRA
HMSO
HC
XVlll
Abbreviations
IAEA
IBRD
ICAO
ICj
IDA
IFC
ILC
ILO
IMCO
IMF
INMARSAT
INTELSAT
IRO
ITU
KB
KC
MAPHILINDO
Mise.
King's Bench.
King's Counsel.
NATO
OAS
OAU
OECD
OEEC
Organisation
Organisation
Organisation
Organisation
PAU
PCIj
of American States.
of African Unity.
for Economic Cooperation and Development.
for European Economic Cooperation.
Pan-American Union.
Permanent Court of International justice.
QB
QC
Queen's Bench.
Queen's Counsel.
RN
Royal Navy.
SACEUR
SACLANT
SELA
SHAPE
sv.
UAR
UNCTAD
UNEF
UNESCO
UNFICYP
UNHCR
UNICEF
Abbreviations
UPU
UNTS
VOA
WEU
WHO
WIPO
WMO
ZOPEAN
Voice of America.
Note: for abbreviations of periodicals and other serial publications, see Bibliography.
XIX
BOOK I
Diplomacy in general
Chapter
2
3
4
5
6
7
8
Diplomacy
Privileges and immunities of the head of a foreign state
The minister for foreign affairs
Precedence among states and similar matters
Titles and precedence among sovereigns
Maritime honours
The language and forms of diplomatic intercourse
Credentials and full powers
3
9
12
20
27
36
38
55
CHAPTER
Diplomacy
I. I.
1.2.
The Oxford English Dictionary is more precise. Harold Nicolson terms it 'precise
although wide.'} Diplomacy, the Dictionary says, is (i) the management of
international relations by negotiation; (ii) the method by which these relations
are adjusted and managed by ambassadors and envoys; (iii) the business or art
of the diplomatist; (iv) skill or address in the conduct of international
intercourse and negotiations. Two further interpretations are also current: a
subject of study in some colleges and universities, especially in European
and American countries; the diplomatic career.
1.3.
Although the word has been in the English language for no more than two
centuries, it has suffered from misuse and confusion. It has sometimes been
made to appear, for instance, as the equivalent of foreign policy.2 But foreign
policy is formulated by government, not by diplomatists. In order to carry out
its policy, a government will need to manage and adjust its international
relations by applying different forms of pressure. How successful these pressures
prove will greatly depend on the real power behind them. The power must be
real, but, rather than exercise it explicitly, the government may prefer to keep
it in reserve with the implication that in certain circumstances it could be used.
Nevertheless, in normal circumstances it will conduct its international
intercourse by negotiation. This is diplomacy. Persuasive argument, ifapplied
skilfully and sensitively at the right time, may achieve a better result than
persuasion too obviously backed by the threat offorce. The latter may provoke
resistance and finally lead to war.
1.4.
Diplomacy is in fact, as the Duc de Broglie remarked, the best means devised by
civilisation for preventing international relations from being governed by force
alone. The field in which it operates lies somewhere between power politics and
civilised usage, and its methods have varied with the political conventions of
each age. There is no lack of evidence that the sending of emissaries to open
negotiations was a common practice among quite primitive peoples and that in
many cases their reception and treatment were regulated, even if only in a
rudimentary way, by custom or taboo. The Greek city states frequently
despatched and received special embassies with due accreditation, who
Diplomacy
presented their case openly before the rulers or assemblies to whom they were
sent. The principles and methods of Greek diplomacy had in fact been
developed by the fifth century B.C. into a recognised system to which much
subsequent thinking on the subject oweS its origin, and which has provided one
of the earliest and clearest illustrations of the difficulty, so familiar to us today,
of reconciling efficient negotiation with the processes of democracy. The
Roman contribution to this heritage was characteristic of a people who
produced rulers and administrators rather than diplomatists, who preferred
organisation to negotiation, and who sought to impose a universal respect for
their own system of law. The Byzantine emperors, on the other hand, although
often at pains to elaborate the machinery of diplomatic intercourse, earned for
this machinery a reputation for complexity and deviousness which has added
little of lasting value to the traditions of the art. 3
1.5.
The Venetians undoubtedly learned much from Byzantine example, but the
diplomacy of the Italian city states was essentially a product of the political
conditions of the time. As the late Garrett Mattingly4 demonstrated, Italian
Renaissance diplomacy did not spring either from a Greek prototype or
ready-made from Italian soil. In his interpretation the Western and Central
European world based itself on the triple concept of the Roman Empire and its
tradition of civil law; its successor, the Holy Roman Empire, with its system of
Germanic feudal and customary law; and the canon law of the ecclesiastical
authority. The centre of faith was the Church of Rome, and of doctrine, the
Papacy. The whole formed what was termed the res publica Christiana. So long as
this trinity formed a credible unity, although of course emissaries (whether:
styled as agents, procurators, or consuls) were sent to transact business in
territories other than their own, there was no formal necessity for accredited
ambassadors (legati) in the sense in which we understand the term today; and
certainly not for resident ones. In fact the thirteenth-century canon law
authority Gulielmus Durandus gave the definition 'a legatus is anybody sent by
another.'
1.6.
Nevertheless as the Middle Ages proceeded, there was rarely concord between
Pope and Emperor, the sovereignty of individual states grew as walled cities
found they could defend themselves against quite large imperial or papal
forces, and credentials of some kind began to be required ifan ambassador was
to be received by someone regarding himself as holding sovereign power. Even
so, growth was by no means logical or tidy. Outstanding among early long-term
resident diplomatic agents was Nicodemo da Pontremoli, sent by Francesco
Sforza, ruler of Milan, not in the first place as his representative to
the Florentine State, but as his confidential agent to Cosimo de' Medici, its
most powerful citizen. When in 1450 Sforza became Duke of Milan, he
furnished his representative with a regular accreditation as 'orator' in the
Florentine republic, and Nicodemo held the post for seventeen years. One can
readily see how in the closely knit but tensely divided polity offifteenth-century
Italy the practice of residential diplomacy came to be commonly accepted and
to evolve its own conventions. At the outset of the sixteenth century this
practice was already spreading to other countries ofEurope. In the atmosphere
of developing nation states, shifting alliances and the dynastic struggles for power
Diplomacy
the resident diplomatic agent was invaluable in keeping his master supplied
with information and acting as a barometer to register every evidence or
portent of impending change. However, the wars of religion so embittered
relations between Catholic and Protestant states that for 100 years true
diplomacy was wellnigh paralysed by mutual distrust. Ambassadors reported
that it was impossible to find out anything, because nobody wanted to talk to
them. Christendom appeared to be breaking up and the civilised intercourse
essential to good diplomacy suffered a temporary lapse.
1.7.
1.8.
Diplomacy
politics by other means,' [an allusion to the doctrine ofClausewitz] 'then peace,
in its turn, is no more than the continuation ofconflict by other means. '5 There
is of course nothing new in this. The same thought is implicit in Machiavelli's
prologue to his Art of War. In such a process ofconflict the practice ofdiplomacy
must be presumed to embrace not merely negotiation, but the use ofa complex
range of moral and psychological weapons.
I.g.
The definitions which follow, taken from various authorities, may be helpful as
a reminder of the many roots from which modern diplomacy has grown.
I. 10.
The diplomat, says Littre, is so called, because diplomas are official dosuments .(actes)
emanating from princes,and the word 'diploma'comes from the Greek 8l.".>..wp4 (S...".>..&w,
I double) from the way in which they were folded. A diploma is understood to be a
document by which a privilege is conferred: a state paper, official document, a charter.
The earliest English instance of the use of this word is of the year 1645.
I. I I.
Leibnitz, in 1693, published his Codex Juris Gentium Diplomaticus, Dumont in 1726 the
Corps universel Diplomatique du Droit des Gens. Both were collections of treaties and other
official documents. In these titles diplomaticus, diplomatique, are applied to a body or
collection of original state papers, but as the subject-matter of these particular collections
was international relations, 'corps dipomatique' appears to have been treated as
equivalent to 'corps du droit des gens, , and 'diplomatique' as 'having to do with
international relations.' Hence the application also to the officials connected with such
matters. Diplomatic bol{y6 now came to signify the body of ambassadors, envoys and
officials attached to the foreign missions residing at any seat of government, and
diplomatic service that branch of the public service which supplies the personnel of the
permanent missions in foreign countries. The earliest example of this use in England
appears to be in the Annual Register for 1787. Burke, in 1796, speaks of the 'diplomatic
body,' and also uses 'diplomacy' to mean skill or address in the conduct of international
intercourse and negotiations. The terms diplomat, diplomate, diplomatist were adopted to
designate a member of this body. In the eighteenth century they were scarcely known.
Callieres, whose book was published in 1716, never uses the word diplomate. He always
speaks of 'un bon' or 'un habile negociateur.' Disraeli is quoted as using 'diplomatic' in
1826 as 'displaying address' in negotiations or intercourse of any kind (New English
Dictionary). La diplomatique is used in French for the art of deciphering ancient
documents, such as charters and so forth.
I. I 2.
Diplomacy
negociations.... Elle embrasse le systeme entier des interets qui naissent des rapports
etablis entre les nations: elle a pour objet leur surete, leur tranquillite, leur dignite
respectives; et son but direct, immediat, est, ou doit etre au moins, le maintien de la paix
et de la bonne harmonie entre les puissances.' (Garden. 1883,) - Conciliation; and a
series of wholly beneficial objectives, in the last of which, however, the writer's
confidence seems to have faltered.
'L'art des negociations. Kliiber 7 developpe assez bien cette definition en disant que c'est
"I'ensemble des connaissances et principes necessaires pour bien conduire les afTaires
publiques entre les Etats." La diplomatie eveille en efTet I'idee de gestion des afTaires
internationales, de maniement des rapports exterieurs, d'administration des interets
nationaux des peuples et de leurs gouvernments, dans leur contact mutuel, soit paisible,
soit hostile. On pourrait presque dire que c' est "le droit des gens applique." , (PradierFodere. 1881.) - The role of diplomacy in times of peace and of conflict. (See 1.8.)
'La science des relations qui existent entre les divers Etats, telles qu'elles resultent de
leurs interets reciproques des principes du droit international et des stipulations des
traites.' (Calvo. 1885,) - A subject of study, with emphasis on law and treaties.
'La science et I'art de la representation des Etats et des negociations.
On emploie le meme mot ... pour exprimer une notion complexe, comprenant soit
I'ensemble de la representation d'un Etat, y compris le ministere des afTaires etrangeres,
soit I'ensemble des agents politiques. C'est dans ce sens que I'on parle du merite de la
diplomatie fran~aise cl certaines epoques, de la diplomatie russe, autrichienne.
Enfin on entend encore par diplomatie la carriere ou profession de diplomate. On se
voue cl la diplomatie, comme on se voue cl la magistrature, au barreau, cl I'enseignement,
aux armes.' (Rivier, Principes du Droit des Gms. 1896.) - The apparatus of representation,
now no longer of princes, but of whole states.
1.13.
Diplomatists existed long before the words were employed to denote the class.
Machiavelli (1469-1527) is perhaps the most celebrated of men who
discharged diplomatic functions in early days. D'Ossat (1536- 1604), the
Conde de Gondomar (1567-i626), Kaunitz (1710-94), Metternich (17731859), Pozzo di Borgo (1764-1842), the first Lord Malmesbury (1764-1820),
Talleyrand (1754-1838), Lord Stratford de Redcliffe (1786- 1880) were among
the most eminent of the profession in their time. If men who combined fame as
statesmen with diplomatic reputation are to be included, the Duc de Richelieu
(Cardinal Richelieu, 1585- I 642) was in a sense the father of French diplomacy;
and Count Cavour (18 I0-6 I) and Prince Bismarck (18 15-98) enjoyed a worldwide celebrity. Outside Europe there were notable 'pioneer' diplomats such as Sir
Thomas Roe, British 'lord ambassador' at the Court of the Mogul Emperor
Jehangir (1615-18) and Townsend Harris the first American Consul-General
in Japan (1855-60) with his remarka ble gift for comprehending the psychology
of a long-isolated people.
1.14.
Diplomacy
for the post. In the Netherlands it is not unusual for a member of the Foreign
Service to be appointed minister for foreign affairs and, after serving his term,
to return to the Service.
I. I
5.
CHAPTER
Privileges and
immunities of the head
of a foreign state
2.1.
It has been established for several centuries in customary international law that
a sovereign, or head of state, who comes within the territory of another
sovereign is entitled to wide privileges and to ceremonial honours appropriate
to his position and dignity, and to full immunity from the criminal, civil and
administrative jurisdiction of the state which he is visiting. 1 From this
immunity of the head of state there flowed, at least in part, the privileges and
immunities accorded to diplomats and consuls who represented the state. And
from this same principle there was established the rule that the foreign state, as
a legal entity, could not be sued in courts oflaw. Actions could not be brought
on a contract with a foreign state, or to claim for damage inflicted by the agents
of the foreign state, or against a ship or aircraft owned by and operated in the
public service of the foreign state. But it is a curious consequence of the
developments of the last few decades, which have brought greater certainty to
the law concerning diplomats, consuls and other state officials and to the law
which regulates the immunities of the state itself, that the position ofthe head of
state has become less clear. The Vienna Convention on Diplomatic Relations
of 1961 and the Vienna Convention on Consular Relations of 1963 (which are
discussed in detail in Chapters 14-19 and 26-27) do not deal with the personal
privileges and immunities of the head of state. The New York Convention on
Special Missions of 1969 provides that heads of state leading a special mission
shall enjoy 'the facilities, privileges and immunities accorded by international
law to Heads of State on an official visit', but it does not define in any detail
these facilities, privileges and immunities. As regards the immunities of the
foreign state itself, many states have developed complex and detailed rules
under which these immunities are restricted in cases which may broadly be
described as 'commercial'. The States of the Council ofEurope have drawn up
among themselves a European Convention on State Immunity 2 which lays
down in detail the circumstances in which one Contracting State to the
Convention cannot claim sovereign immunity before the courts of another
Contracting State. But none of this large and complex body of international
law has been drawn up with the position of heads of state in mind. A clear
distinction is drawn in the law of many states, and implied in that of others,
between the foreign state as a legal entity and the head of such a state as an
individual to whom a very high degree of privilege and immunity remains due.
2.2.
10
2.3.
In the nature of things there are few opportunities for clarifying whether any
exceptions now exist to the immunity of a foreign sovereign. Cases which come
to court nearly always concern not the personal status or the personal property
of the head of state but the status or property of the state as a legal entity. A
head of state, whether a hereditary ruler or an elected president, does not enter
the territory of another state in his official capacity without the clearest
assurances being expressed or implied that full immunity and full ceremonial
honours will be accorded. Although heads of state visit other states not only on
formal visits but also on private visits, any disregard by them of their
obligations or of the laws and regulations of the state they are visiting is almost
unheard of. However, certain exceptions to full immunities may be said to be
inherently justifiable, even if it cannot be said that they are fully supported by
extensive practice. For instance if the foreign sovereign himself institutes civil
proceedings, he makes himself liable to a related counter-claim - as is the case
with a diplomatic agent. 5 If the foreign sovereign owns real property in a
personal capacity, his immunity cannot prevent the hearing of an action to
establish the title or the right to possession of that property, since otherwise no
forum would exist competent to hear such an action. 6 If the foreign sovereign
engages in a trading venture or in speculative investment, it may be justifiable
to subject him to civil suit or to deny him tax exemption on his profits. But state
practice in regard to the taxation of the personal investments offoreign heads of
state is in fact very varied.
2.4.
A head of state who has been deposed or replaced or has abdicated or resigned
is of course no longer entitled to privileges or immunities as a head of state. He
will be entitled to continuing immunity in regard to acts which he performed
while head of state, provided that the acts were performed in his official
capacity; in this his position is no different from that of any agent of the state. 1
He cannot claim to be entitled to privileges as of right, although he may
continue to enjoy certain privileges in other states on a basis of courtesy.
2.5.
In 1940 a state of affairs without precedent arose. Beginning with the Royal
Family and Government of the Netherlands, a series ofdispossessed sovereigns,
with their governments, established themselves in Great Britain. They were
accorded all the privileges normally due to visiting heads of states and to
diplomatic representatives, respectively. The British heads of mission
accredited to them continued to function but enjoyed no privileges, except to
some small extent, and then only by courtesy, in the matter of minor traffic
offences. The governments set up their own departments in offices which were
11
CHAPTER 3
The minister for foreign affairs is the regular intermediary between the state
and foreign countries. His functions are regulated by domestic legislation and
traditions, and his powers vary according to the political organisations of
different states.
3.2.
In England the origins of this high office take us back to the thirteenth century.
The King's Secretary is first heard of in 1253, in the reign of Henry Ill. The
office was at first a part of the royal household. Its holder might be a man of
character and capacity, fit to be a member of the King's Council, or to be sent
as an envoy to foreign powers. Such were the Secretaries of Henry III and
Edward I. Or he might be an inferior officer of the household, and such seems to
have been the position ofthe Secretary of Edward Ill. In 1433 (reign of Henry
VI) two Secretaries were appointed, one by the delivery of the King's Signet,
the other by patent. (Letters patent were open letters of authority, usually
issued by the Sovereign, written on parchment with the Great Seal pendent at
the bottom.) In 1476 (reign of Edward IV) a newly appointed Secretary is
described as Principal Secretary. In the reign of Henry VIII the position of
Principal Secretaries was advanced. They were still members ofthe household,
but ranked next to the greater household officers, and in Parliament and
Council they had their place assigned by statute. In 1539 a warrant issued to
Thomas Wriothesley and Ralph Sadler gave them 'the name and office of the
King's Majesty's Principal Secretaries during his Highness' pleasure.' After
Henry's reign the Secretary ceased to be a member of the household.
3-3.
During the greater part of Elizabeth I's reign there was but one Secretary, but
at the close ofit Sir Robert Cecil shared the duties with another, he being called
'Our Principal Secretary of Estate,' and the other 'one of our Secretaries of
Estate.' From this time, until the year 1794, it was the rule that there should be
two Secretaries of State. The exceptions occurred in 1616, when there were
three; from 1707 until 1746, when there was usually a third Secretary for
Scottish business; and from 1768 until 1782, when there was a third Secretary
for Colonial business.
3.4.
Down to 1782 the duties of the two Secretaries, as regards foreign affairs, were
divided geographically into Northern and Southern Departments, and until
that year they were described in official documents relating to the staffcommon
to both as 'His Majesty's Principal Secretaries ofState for Foreign Affairs.' The
Northern Secretary used to announce himself to resident heads of foreign
missions thus: 'Le Roi m'ayant fait l'honneur de me nommer aujourd'hui son
Secretaire d'Etat pour le departement du Nord,' but on 27 March 1782 Fox
announced to them that 'le Roi m'ayant fait l'honneur de me nommer son
Secretaire d'Etat pour le Departement des affaires etrangeres ... ' Since 1782,
therefore, the Secretaryship of State for Foreign Affairs has always been
entrusted to a single person. Sir William Anson says: 'I cannot ascertain that
any Order in Council or departmental minute authorises or records this
important administrative change. '2
3.5.
It was in the fifteenth and sixteenth centuries that most of the European
monarchies established a special branch of the administration for foreign
affairs. In the reign of Francis I ofFrance there was a secret committee to which
was entrusted the discussion of questions of foreign policy. In France, in the
year 1547, at the beginning of the reign of Henri 11, the Department of
Secretaries of State was founded. There were four such secretaries who shared
home and foreign affairs among them. In the reign of Charles IX the
department was divided into four sections: (I) Italy and Piedmont; (2)
Denmark, Sweden and Poland; (3) the Emperor, Spain, Portugal, the Low
Countries, England and Scotland; (4) Germany and Switzerland. In 1589 a
single ministry for foreign affairs was formed, and all foreign correspondence
was committed to a single Secretary of State. But previously to 1787 he shared
the direction of home affairs with the departments of War, Marine and the
Household. Thus, he had charge of Upper and Lower Guyenne, Normandy,
Champagne and part of La Brie, the principality of Dombes and Berry. But on
Montmorin succeeding to Vergennes as Secretary of State in that year, his
functions were confined to foreign affairs. 3
3.6.
The Emperor Charles V had a secret council of state to furnish advice to him
through the minister who was charged with the foreign branch of administration, while in Spain a somewhat complicated system was established.
3.7.
3.8.
Patents were issued from the fifteenth century onwards till 1852. From that
time the practice was intermittent till 1868, but since the latter date patents
have not been issued, nor in any case would they affect the powers of the
Secretary of State, for these follow the seals. 4
3.9.
The Secretary of State for Foreign and Commonwealth Affairs holds a general
14
full power from The Queen, authorising him to negotiate and conclude, subject
if necessary to Her Majesty's ratification, any treaty in respect ofGreat Britain
and Northern Ireland. (See 8.18)
3.10.
3. I
I.
3. I 2.
15
l'action; depositaire en quelque sorte de l'honneur et des interets generaux de son pays,
dans ses rapports exterieurs, il doit s'appliquer a bien connaitre les hommes, afin de ne
faire que des choix convenables dans le personnel de ses agents au dehors, et de ne
remettre qu'a des mains capables et dignes la sauvegarde de ces interets si graves et de
cet honneur si ombrageux. L'experience acquise, les services anterieurement rendus, la
notoriete du talent, la consideration personnelle, sont des elements essentiels de sa
confiance. '5
3.13.
At the present day the duties and responsibilities of the minister who is
entrusted with the conduct of the foreign relations of his country range over a
yet wider field than when the above was written. The birth of new states, the
advancement of others, constitutional changes which may occur in their
methods of government, the growth of organisations designed to foster a better
understanding between the nations of the world, the ever-increasing
complexity of international relationships, and the many questions to which all
these give rise, have largely extended the area within which diplomacy finds its
proper scope, and call for close and unremitting attention.
3.14.
Occasionally the holder of the office combines this with other functions. In the
United Kingdom within modern times the Secretary of State for Foreign
Affairs has on more than one occasion also been Prime Minister. In France he is
often President of the Council. In Germany, he might be also Chancellor.
3.15.
On taking office the minister for foreign affairs informs the diplomatic
representatives of foreign states, and customarily receives them as soon as
possible thereafter at his official residence to exchange greetings with them. He
also informs the diplomatic agents of his own country accredited abroad.
3. 16.
In the United Kingdom it is usualfor the retiring Secretary ofState for Foreign
and Commonwealth Affairs to address to the foreign diplomatic representatives an announcement in some such terms as
I have the honour to inform you that The Queen has been graciously pleased to
accept my resignation of the office of Her Majesty's Principal Secretary of State for
Foreign and Commonwealth Affairs, and to confide the seals of this Department to
3.17.
For many years the normal procedure on receipt of this letter was for
arrangements to be made for the reception by the incoming Secretary ofState
of the heads of missions in the order of their precedence in the diplomatic list.
This procedure was maintained in the United Kingdom until 1974. But with
the number of heads of mission rising to over 100 (by 1976 it was 124), the
Foreign and Commonwealth Secretary, Mr James Callaghan, decided to
substitute a reception for all heads of mission and their spouses, at which all
present would have the opportunity to meet him and Mrs Callaghan. Such a
16
change has tended to impose itself, particularly in large capitals in which the
Secr.etary of State (or Foreign Minister) combines parliamentary with
executive duties.
3. I 8.
In every country the foreign minister is assisted by a trained staffwho, under his
guidance, constitute the foreign office or ministry for foreign affairs. In the
United Kingdom the permanent staff of the Foreign and Commonwealth
Office has at its head the Permanent Under-Secretary of State (in France it is
the Secretaire-General), who has the rank of ambassador. There may
nowadays be as many as nine officers with the rank ofdeputy under-secretary of
state (so diversified has the work of the Ministry become) and perhaps twice
that number of assistant under-secretaries. The exact number and attributions
will vary with the ebb and flow of priorities in external affairs. The United
Kingdom Secretary of State is also assisted by two ministers of state and two
parliamentary under-secretaries, who hold office as members of the government in power for the time being.
3. I g.
In all communications with the government of the state to which they are
accredited, diplomatic agents should address themselves to the minister for
foreign affairs, whether in seeking information as to the views or practice ofthat
government in regard to various matters that may arise, or in furnishing
information as to the views or practice of their own government.
The Pan-American Convention respecting diplomatic officers, signed at Havana on
February 20, 1928, lays down for the signatory States the following rules:
'Article 13. Diplomatic officers shall, in their official communications, address
themselves to the Minister of Foreign Relations or Secretary of State of the country to
which they are accredited. Communications to other authorities shall also be made
through the said Minister or Secretary.'
3.20.
It is often convenient, when dealing with specialised subjects, such as the detail
of financial, commercial or scientific activities, or questions concerning
development, technical cooperation, etc. for a diplomatic officer to establish
direct contact with the appropriate department or expert, especially if he has
made personal acquaintance with them already. But such approaches are only
semi-official and must be handled with tact, preferably by members of the staff,
rather than by the ambassador himself. On any matter of substance the
ministry of foreign affairs will expect at least to be informed, ifnot consulted in
the first place.
The practising diplomat at whatever level needs to have some feel for the actual
conduct of external policy in the country in which he is serving. Notably it is
important to know something of the standing ofthe foreign minister vis-a-vis his
colleagues, particularly the head of government.
3.22.
In early days this meant the direct relationship with an absolute sovereign. As
sovereignty ceased to be absolute, and authority became more diffused, the
18
and from 1953 to 1957, became in the latter year Foreign Minister, and has
held this post until the time of the publication of this book. Given the Russian
penchant for secrecy, as notable in Communist as in Tsarist times, the full
background of this long tenure of office may never be known. But the
continuance of Mr Gromyko in the Supreme Soviet since 1959 must indicate
that his competence, endurance and loyalty to those in power were such that
there was no reason for change.
3.27.
In matters which affect him and his country, a diplomat thus needs to know
where the power lies. To put it more specifically, he needs to know whether an
initially favourable response by a foreign minister to an approach from a
diplomatic mission is a foretaste of government policy, or a characteristic piece
of personal courtesy, or something in between. In cases where the foreign
minister is known to be a weak member of the government, there may be a
temptation to seek a favourable decision, either by the use of indirect pressure
on him, or even by direct recourse to the head of government. But either of
these tactics can cause the apparently weak minister to show a surprising
negative strength.
Records
3.28.
In most countries special care has been devoted to the preservation ofpublic documents.
In England, from the fourteenth century, papers were deposited at the Tower of
London. Queen Elizabeth I, in 1578, created the State Paper Office for the documents
belonging to the Secretary ofState, which has developed into the existing Public Record
Office.
3.29.
During the seventeenth and eighteenth centuries the foreign, domestic, colonial and
military records, generally described as State Papers, were preserved in a common
repository, at first in Whitehall, and after 1833 in the new State Paper Office built in St
James's Park. During this period they were under the immediate charge of a Keeper of
the State Papers and a separate staff; but in 1854 the establishment of the State Paper
Office was amalgamated with that of the Public Record Office, and in 1862 the building
was pulled down and its contents transferred to the Record Office.
3.30.
The older Foreign Office records, that is those before 1760, were transferred to the
Public Record Office in 1862, with the rest of the contents of the State Paper Office.
Frequent transfers of the more modern papers have taken place since 1868, although,
until the 1958 Public Records Act came into force, they were made at irregular
intervals. The 1958 Act, as amended by the Public Records Act of 1967, placed a
statutory obligation on the Foreign Office (and later the Foreign and Commonwealth
Office) to transfer the records to the Public Record Office well in time for their opening
to public inspection when thirty years old. An exception to the thirty-year rule was
made when, in December 1969, the British Government decided, with the agreement of
the principal Opposition parties, to accelerate the opening of the records of the Second
World War. 6 As a result of this decision, British wartime Diplomatic Records were
opened on I January 1972. Since then, transfers are made annually to the Public Record
Office, thus opening the records for 19460n I January 1977, those for 19470n I January
1978 and so on. Indexes related to the correspondence contained in these records are
also transferred annually.
Records
3.31.
19
France
The following archives of the Ministry of Foreign Affairs are available for historical
research:
(a)
(b)
(c)
(d)
Netherlands
Files more than fifty years old are in principle on deposit in the State Archives
(Algemeen Rijksarchief) and freely open to the public. Archives ofthe Foreign Ministry
which have not yet been transferred to the State Archives are open for scholarly research
after they are thirty years old.
United States
The policy records of the Department of State, with a small number of exceptions,
are required to be declassified and opened to research when they are thirty years old.
Documentary volumes, Foreign Relations of the United States, are in course of publication
for each year. In the restricted period (at present from ]948 onwards) copies of
identifiable documents may be requested by non-official researchers under the Freedom
of Information Act (5 U.S.C. 552) of ]966, amended by Public Law No. 93502 of 2]
November ]974, or Executive Order No. ] ]652, February ]975.
Soviet Union
There appear to be no published regulations concerning the availability of diplomatic
archives in the USSR. Requests for access are considered on an individual basis.
CHAPTER 4
The Pope in early times claimed the right of fixing the order of precedence
among the heads of states. The precedence of the Pope above all other
potentates was assumed as a matter of course. Next in order came the
Emperor; I then the King of the Romans, who was the heir-apparent of the
latter (by election).
4.2.
2I
Dux Sabaudire,
Dux Mediolani,
Dux Venetiarum,
Duces Bavarire.
Duces Francire et Lotharingire,
Dux Borbonire,
Dux Aurelianensis, Isti quatuor non prrestant obedientiam
Sedi Apostolicre quia subditi imperatoris sunt,
Dux Janure,
Dux Ferrarire. 2
4.3.
4.4.
The first place being conceded to the Pope, and the second, with universal
assent, to the Emperor, up to the fall of the Holy Roman Empire in 1806, the
question was as to the others. Gustavus Adolphtas of Sweden asserted the
equality of all crowned heads, Queen Christina maintained it at the Congress
of Westphalia, and in 1718 it was claimed for Great Britain on the occasion of
the Quadruple Alliance.
4.5.
22
4. 6 .
In 1564 Pius IV declared that France was entitled to precedence over Spain
in a question respecting the relative rank of the ambassadors of the two Powers
at Rome. 5 In 1633,6 Christian IV ofDenmark having proposed to celebrate the
wedding of his son, the Crown Prince, a dispute arose between the French and
Spanish ambassadors, the Comte d' Avaux and the Marques de la Fuente. The
Danish ministers proposed to d' Avaux various solutions of the difficulty, and
a'mong these that he should sit next to the King, or next to the Imperial
Ambassador. To this he replied: 'I will give the Spanish Ambassador the choice
of the place which he regards as the most honourable, and when he shall have
taken it, I will turn him out and take it myself.' To avoid further dispute, de la
Fuente, on a plea of urgent business elsewhere, absented himself from the
ceremony. In 1657, a contest ofthe same kind occurred at The Hague, between
de Thou, Special Ambassador, and the Spanish Ambassador Gamarra. 7
4.7.
4.8.
23
On the other hand, Russia had not ordered hers to claim precedence over the
French Ambassador, but simply not to concede it to him. At a court ball in
London, in the winter of I 768, the Russian Ambassador, arriving first, took his
place immediately next to the ambassador ofthe Emperor, who was on the first
of two benches arranged in the diplomatic box. The French Ambassador came
in late, and climbing on to the second bench managed to slip down between his
two colleagues. A lively interchange of words followed, and in the duel which
arose out of the incident the Russian was wounded. l l
4.9.
4.10.
24
4. I
I.
The a/temat consisted in this, that in the copy of the document or treaty which
was destined to each separate Power, the names ofthe head ofthat state and his
plenipotentiaries were given precedence over the others, and his plenipotentiaries' signatures also were attached before those ofthe other signatories. Thus
each Power occupied the place of honour in turn.
4. I 2.
4. I 3.
"By France
"
"By England
"
"For Spain
"
"
"
For France
"
"
For England
"
"
Emperor,
Emperor,
Emperor,
Emperor,
Emperor,
Emperor,
Emperor,
Emperor,
Emperor,
Emperor,
Emperor,
Emperor,
So that, the primacy of the Emperor being recognised, the other three Powers
admitted the a/temat among themselves.
4.14.
It was doubtless to avoid disputes about the a/temat that on some occasions the
practice was su bstituted of the plenipotentiaries signing only the copy intended
for the other party, as in the case of the Treaty of Westminster of 16 January
1756, between George 11 and Frederick the Great, and other instances. Kliiber
says that at the Congresses of Utrecht (17 I 3) and Aix-Ia-Chapelle (1748) each
of the High Contracting Parties delivered to each of the others an instrument
signed by himself alone. 19
4.15.
The Holy Roman Empire came to an end inJuly 1806, in consequence of the
establishment of the Confederation of the Rhine, and the precedence over
other sovereigns formerly enjoyed by the German Emperor disappeared and
could not be claimed by the Emperor of Austria, whose title in 1815 was only
eleven years old. Nor was France at that time in a position to reassert her claims
to rank before the rest of the Powers. From this date the equality in point of
rank of all independent sovereign states, whether empires, kingdoms or
25
While, however, the events recorded relate to an era when questions of precedence between states were jealously regarded as matters affecting the
personal dignity of their sovereigns, it hardly appears that changes to more
democratic forms ofgovernment lessen the importance attached by states to the
maintenance of their position vis-a-vis other states. As Vattel said:
'si la forme du gouvernement vient a changer chez une nation, elle n'en conservera pas
moins le rang et les honneurs dont elle est en possession. Lorsque l'Angleterre eut chasse
ses rois, Cromwell ne souffrit pas que l'on rebattit rien les honneurs que l'on rendait ala
couronne ou a la nation, et il sut maintenir partout les ambassadeurs anglais dans le
rang qu'ils avaient toujours occupe.'20
In the Soviet Union diplomatic representatives have the title of ' representants
plenipotentiaires' alone, but this title is qualified by ascribing to each in his
credential letter the rank of ambassador, minister, etc., so preserving his
relative precedence (see 10.4). The first Soviet representative accredited to
China thus became doyen of the diplomatic corps.
4.18.
In the Treaty of Versailles and other peace treaties resulting from the Peace
Conference of Paris, 1919, the five principal Allied and Associated Powers took
precedence of all other states ranged against the Central Powers.
4.19.
4.20.
26
In the United Nations there are two orders of precedence, the precedence
between delegates and officials and the precedence between member countries.
As regards the first, the President of the General Assembly is held to be the most
senior, followed by the Secretary-General and the Chairman of the Security
Council in that order. There follow the Chairman of the Economic and Social
Council, the Vice-Presidents of the General Assembly and the Chairmen and
Vice-Chairmen of the Assembly Committees. The Secretariat maintains a
protocol department to assist delegates, officials and others with seating
arrangements at formal occasions. This department is responsible for
determining the general order of precedence for occasions when delegates,
officials and other high dignitaries attend together.
4. 22 .
CHAPTER 5
among sovereigns
Titles
5. I.
5. 2 .
The Pope's title of courtesy is Most Holy Father, Tres-Saint Pere, also Venerable
or Tres- Venerable Pere, Holiness, Saintete, or Beatitude, and a Catholic sovereign,
in addressing him by letter, will sign devoue, or tres-devoue,jils. He in turn writes
to them as Carissime in Christo Fili, or Dileetissime in Christo Fili, in Italian
Dilettissimo, Carissimo Figlio. To emperors Sire and Majeste lmperiale are used.
Kings are addressed as Sire and Majeste. For other sovereign princes entitled to
royal honours, Monseigneur and Altesse Royale, for those who do not enjoy them,
Monseigneur and Altesse Serenissime. For the heir-presumptive of an imperial or
royal crown, Monseigneur and Altesse lmperiale, or Royale, as the case may be.
5.3.
The same titles of courtesy are given to empresses, queens and princesses,
according to the birth or rank of their husbands, with Madame instead of Sire.
When a princess entitled by birth to be called Altesse lmperiale or Royale marries
a prince who has not that title she continues to be addressed by it, but with this
exception: princesses bear the same titles as their husbands, unless a different
rule has been established by convention.
5.4.
The German Emperor was Majeste lmperiale et Royale. The title of the Emperor
of Austria was Empereur d'Autriehe, Roi Apostolique de Hongrie. The Emperor of
Russia was Empereur et Autoerate de toutes les Russies. The Russian title Tsar was not
28
5.5.
5.6.
5.7.
The title of Altesse (Highness), which at the outset was given principally to
Italian sovereign princes, and in Germany to the electors, as well as to reigning
dukes and princes, was borne later by princes on whom the German Emperor3
had conferred it. Although the German title Hoheit corresponds literally to
Altesse, it became a title intermediary between Altesse Royale and Altesse
Serenissime; but Hoheit, when applied to a prince of an imperial or royal family,
was always accompanied by Kaiserliche or kiinigliche. By itself Hoheit, which
implied a sort of superiority to Durchlaucht, was adopted in 1844 by reigning
princes of the ancient ducal families of Germany, such as those of Saxony,
Anhalt, Nassau and Brunswick, in distinction to Durchlaucht (likewise signifying
Altesse) , which was borne by sovereign princes (not of ancient descent) of
Germany, as well as by high civil or military functionaries on whom, being
already princes, it was conferred. The qualification of Erlaucht was granted to
the ancient families ofthe Germall counts mediatised after the dissolution ofthe
empire in 1806. 4 A list ofsuch families maybe found in Part 11 of the A Imanach de
Cotha.
5.8.
The title Sa Hautesse (His Highness) was formerly ascribed to the Sultan of
Turkey: in the treaties concluded with Turkey in 1854 and 1856 he was styled
Sa Majeste Imperiale, and the latter title became that habitually used. Formerly
the Khedive of Egypt was styled Son Altesse; the King of Egypt was Sa Majeste.
5.9.
The title Grand Duke was originally the prerogative of the reigning princes of
Tuscany; after Pope Pius V had conferred it on Cosimo I de'Medici. s Until
after the First World War it was borne by six reigning princes in Germany, viz.:
those of Baden, Hesse, Mecklenburg-Schwerin, Mecklenburg-Strelitz, Oldenburg and Saxe-Weimar-Eisenach. The Grand Duchess of Luxemburg bears
this title and is styled Royal Highness. In Russia the heir presumptive to the
Titles
29
throne was Tsasrevitch; all the other members of the Imperial Family bore the
titles of Grand Duke and Grand Duchess. 6
5. 10.
In Austria, with the exception of the eldest son of the Emperor, who was Prince
Imperial, the other members of the Imperial Family were styled Archduke or
Archduchess 7 (Latin, archidux, German, Erzherzog).
5.1 I.
The titles formerly accorded to certain republics have become obsolete. The
States-General of the United Provinces of the Netherlands were addressed as
'Their High Mightinesses' (Hautes Puissallces), and in the letters written to them
by sovereigns they were addressed as Tres-chers amis, or Chers et bons amis et allies.
The Presidents of the United States ofAmerica and of the French Republic are
addressed by other heads of states as 'Good Friend' or 'Great and Good
Friend.'
5. 12 .
In former times the King of France was designated 'le Roi Tres-chretien,' and
the King of Portugal 'le Roi Tres-fidele' since 1748. The KingofSpain became
'le Roi Catholique' in 1496, the sovereign of Austria-Hungary was 'His
Imperial and Royal Apostolic Majesty' from 1758. These titles were conferred
by various popes. Leo X bestowed that of 'Fidei Defensor' (Defender of the
Faith) on Henry VIII in 1521, and his successors have continued to bear this
title. The other titles mentioned were never employed by the sovereigns
themselves; it was only in addressing or speaking of them that they were used.
5. I 3.
In early times the Russian sovereigns bore the title of Autocrator, Magnus
Dominus, Grand-Prince or Czar (Tsar), the last being the Russian word for
'Emperor.'
The surname Monomachus, or Monomakh, was assumed in the twelfth century by
Vladimir 11, according to some writers because at the siege ofTheodosia (Kaffa) he had
vanquished in single combat the general of the Genoese, 8 but according to others, by
derivation from the title of his maternal grandfather the Greek Emperor Constantine
Monomachus. '9
In the seventeenth century the Russian sovereigns began to make use of the
word Imperator in the Latin translations ofofficial documents addressed to other
Powers, and it was Peter the Great who in 172 I, after his victories over Charles
XII, formally took the title of Emperor ofRussia. Notification was made ofthis
fact to all the ambassadors of foreign courts, which did not, however, at once
decide to recognise the new title. Queen Anne was the first to do this in I 7 10,
when she instructed Lord Whitworth to present an apology to Peter the Great
for the insult committed against his ambassador Mathveof (Matveev) in
170 8. 10
5. I 4.
The Elector of Brandenburg assumed the title ofKing ofPrussia in 170 I. It was
first recognised by the Holy Roman Emperor, then by most of the other
sovereigns of Europe at the conclusion of the Congress of Utrecht. The Pope
withheld recognition until I 786 .11
5.15.
30
Duke, and the Prince of Nassau that of Duke. These titles were not at first
recognised by all the Powers, but they were tacitly acquiesced in by those which
were parties to the Treaty of Paris of 30 May 18 I 4, and by the actefinal of the
Congress of Vienna to which all European sovereigns acceded.
5. I 6.
On the latter occasion the Emperor of Russia took the additional title of Tsar
and King of Poland; the King of England - Elector of Hanover, that ofKing of
Hanover; the King ofSardinia the additional title ofDuke ofGenoa; the Dutch
branch of Nassau those of King of the Netherlands and Grand Duke of
Luxemburg; the King of Prussia that of Grand Duke of Posnania and of the
Lower Rhine; the Dukes ofMecklenburg-Schwerin, Mecklenburg-Strelitz and
Saxe-Weimar that of Grand Duke; and the Landgrave of Hesse-Cassel that of
Elector.
5. I 7.
Since the popes and the emperors of the Holy Roman Empire ceased to grant
the title of King to other potentates, European Powers adopted the principle
that the title taken by the head ofa state could not ofitselfgive rise to any sort of
precedence over other crowned heads, and that the latter could either
recognise the new title, or refuse to do so, or recognise it on conditions. 12
5. I 8.
In 1818 the Elector of Hesse-Cassel notified to the diplomatic assembly at Aixla-Chapelle that he intended to take the title of King, having previously written
letters to the sovereigns of the Five Powers in which he asked for their consent.
At the sitting of I I October, the plenipotentiaries agreed that the title borne by
a sovereign is not a simple matter of etiquette, but a fact involving important
political questions, and that they could not collectively give a decision on the
request put forward. However, the Protocol stated that the cabinets, taken
separately, declared the Elector's request not justifiable on any satisfactory
ground, and that there was no inducement to them to accede to it. The cabinets
at the same time took an engagement not to recognise for the future any
change, either in the titles of sovereigns, or in those of the princes of their
families without coming to a previous agreement. They maintained all that
had hitherto been decided in this respect by formal documents (actes). The five
cabinets explicitly applied this reserve to the title of Royal Highness, which
they would henceforth only admit for the heads of grand-ducal houses,
including the Elector of Hesse, and their heirs-apparent. 13
5. I 9
31
Jordan who assumed the title of King on 25 May 1946, and the Amir of
Cyrenaica, Mohammed Idris el Senussi, who became King of the United
Kingdom of Libya on 24 December 1951.
5.20.
Certain sovereigns use three sorts of title: the grand titre, the titre moyen and the
petit titre.
The first of these includes the names of the fictitious as well as of the real
dominions. For instance, the King of Spain's grand titre included the Two
Sicilies, Jerusalem, Corsica, Gibraltar, Austria, Burgundy, Brabant and
Milan, Habsburg, Flanders, Tyrol, all of which were fictitious, one of them,
Jerusalem, being also claimed in the grand titre of Austria. Those of the King of
Prussia and the Emperor of Russia also were very long. (See 5.13 and 8.6.)
The titre moyen is confined to real facts, and the petit titre, the most generally
used, is the highest of all - namely, that by which the sovereign is habitually
designated.
5.21.
Sovereigns in addressing each other officially begin Monsieur Mon Frere (Sir My
Brother), adding the name of any blood relationship that may exist between
them. To an empress or queen it is Madame Ma SO?ur (Madam My Sister); to a
reigning Grand Duchess, Madam My Sister and Cousin.
5.22.
Letters from the Pope to the British court may begin 'Serenissimo Augustoque
Principi' ... 'Serenissime Rex, Salutem et felicitatem'; or 'Augusto Principi ... '
'Auguste Rex et Imperator salutem et felicitatem.' The reply begins, 'Your
Holiness.'
5.23.
In British protocol other forms of writing Royal letters are: first, commencing
with 'Sir my Brother', or in some cases 'Sir my Brother and dear Cousin', and
ending 'Your Majesty's Good Sister'. Arab sultans are 'Your Majesty and
Good Friend'; amirs 'Your Highness and Good Friend'; second, commencing
with The Queen's titles. In these letters the plural 'We' and 'Our' are employed
instead of 'I' and 'My,' and the letters terminate thus: 'Your Good Friend.'
This form is used for Royal letters to presidents of republics.
5.24.
32
place to be taken by them on the occasion ofa gathering ofmore than two must
naturally present difficulties. The meeting of the emperors Napoleon I and
Alexander I at Erfurt, in September 1808, was attended by a number of kings,
grand dukes and princes belonging to the Confederation of the Rhine. Among
them were the Kings ofSaxony, Wiirttemberg, Westphalia, Bavaria, the Dukes
of Oldenburg, Saxe-Weimar, Saxe-Coburg-Gotha, Mecklenburg-Schwerin
and Mecklenburg-Strelitz, and the Prince of Thurn and Taxis. At a great
dinner at Weimar on 6 October the order among these kings seems to have been
Westphalia, Bavaria, Wiirttemberg, Saxony.14
5. 26 .
5.27.
During the meeting ofthe three emperors (Austria, Germany, Russia) at Berlin
in 1872, these sovereigns took precedence over each other, alternately in each
succeeding ceremony, and the national hymns ofeach country were also played
accordingly.
5.28.
5.29.
It is not usual for heads ofstates to attend at each other's coronations, marriages
and on other similar occasions, but crowned heads are often represented by
members of their families. The order in which these are placed must be
determined by the court officials, or in the last resort by the sovereign who is
host. At the inauguration ofKing Leopold ofBelgium in December 1865, when
one crowned head, the King of Portugal, was present~ he naturally had the
place of honour. Next to him came the Comte de Flandre (Belgium), the Prince
of Wales (United Kingdom), Prince Arthur of England, the Crown Prince of
Prussia, the Duke of Cambridge, the Archduke Joseph of Austria, Prince
George of Saxony, Prince William of Baden, Prince Nicholas of Nassau, Prince
Louis of Hesse, Prince Augustus ofSaxe-Coburg-Gotha, and Prince Leopold of
Hohenzollern-Sigmaringen. 16
5.30.
5.3 I.
33
For the coronation of King George VI in 1937 the order of precedence was laid
down as follows:
I.
2.
3.
4.
5.
6.
7.
8.
9.
10.
5.32.
In 1937 the German Ambassador, Herr von Ribbentrop, and his Counsellor,
having informed the Secretary of State that the German Representative at
King George VI's Coronation would be Field-Marshal von Blomberg, then
enquired what precedence the German delegation would enjoy on the
occasion. They were told that it would accord, as between foreign delegations,
with the date when the Ambassador presented his credentials. The German
Embassy protested that this would place the German delegation in a
humiliating position for a great power and threatened that the Field-Marshal
would not be sent unless some improvement were made. After voluminous
explanations, both in London and Berlin, the British standpoint prevailed,
though the Germans still held to their view as to the impropriety of their
delegation coming so low on the list. It was stated, incidentally, in Berlin that
the German Ambassador had made his protest entirely on his own initiative.
5.33.
In this connection it is worth noting that, under the same rule of precedence, the
US special representative at King George VI's funeral had to take an even
lower place on the list; the reason for this was explained to him and he accepted
the situation without murmur.
5.34.
2.
3.
4.
5.
6.
7.
8.
34
5.36.
5.37.
35
At the coronation of King George VI, 5.3 I appears to show that the special
representatives attending the ceremony enjoyed precedence.
5.38.
5.39.
CHAPTER 6
Maritime honours
6. I.
2I
'Des doutes s'etant eleves sur les principes a observer relativement au salut de mer, il
est convenu que chacune des Cours signataires de ce protocole fera remettre a la
Conference Ministerielle a Londres les reglements qu'elle fait observer jusqu'ici a cet
egard, et que I 'on invitera ensuite les autres Puissances a communiquer les memes
notions de leur cote, afin que I 'on puisse s'occuper de quelque reglement general sur cet
objet.'
6.2.
Nothing seems to have been done at the time to carry this agreement into effect,
but certain arrangements regarding ceremonial have since been entered into
between the maritime Powers; and although the practice of other countries
may differ in some particulars from that of the British Navy, the principles
governing courtesies to be shown are nevertheless generally recognised.
6.3.
The British rules for the flyingofflags, the firing ofsaluting guns, the formalities
for receiving distinguished visitors on board, the ritual exchange of calls,
precedence and the drinking of toasts are set forth in Chapter 12 of The
Queen's Regulations for the Navy. Chapter 8 of The Queen's Regulations for
the Army and Chapter 5 and Appendix 39 of The Queen's Regulations for the
Air Force contain directions on similar lines, in so far as these are applicable to
the respective services.
6.4.
6.5.
When a British diplomatic agent pays an official visit in a foreign port to the
officer commanding a British ship, his arrival is announced by the sounding of
the Alert (by bugle, or, at the discretion of the commanding officer, by pipe).
He will normally be accompanied by some ofhis staff. In going on board he will
ascend the ship's side at the head ofhis party and will acknowledge the salute of
the commanding officer by removing his hat and standing briefly at attention.
When appropriate, a salute is fired at the moment when he leaves the ship to
return on shore. The recipient acknowledges the compliment by removing his
Maritime honours
37
hat until the last gun is fired. Ifhe has been brought to the ship's side by boat, he
will be the last person of his visiting party to leave the ship's deck and enter the
boat.
6.6.
Not all of Her Majesty's ships are 'saluting ships'; the point is mainly governed
by the size of the ship and the number of guns that can be fired for saluting
purposes.
6.7.
6.8.
These are, however, matters with which the diplomatic agent is not, as a rule,
concerned, except in countries where the capital happens to be situated at a
port where ships can lie, and the conduct of the ceremonies to be observed in
such cases concerns the naval officers; the diplomatic official does not
intervene, but he will do well, ifresident at such a place, to inform himselfof the
rules that are observed in this respect by the navy of his own country.
6.g.
Queen's regulations for all the Services contain a paragraph to the effect that in
foreign and Commonwealth countries officers may fly their flags on their cars
on those occasions when the British Ambassador or High Commissioner
considers that it would be appropriate for them to do so. In certain countries,
the order continues, the flying of car flags may be completely precluded by
laws, customs or local conditions.
6. 10.
CHAPTER 7
Latin, being the written language not only of the Roman Empire, but also ofits
successor the Holy Roman Empire and of the Roman Catholic Church, was
not unnaturally the written language of all early European diplomacy. From
the Renaissance onward, instructions to diplomatic representatives began to be
framed in the language of the envoy's own country, though the use ofLatin was
common until the eighteenth century. I Latin was also used in conversation
between diplomatists, where the parties were unable to speak each other's
language. French came next in frequency of use after Latin. At the end of the
fifteenth century it had become the court language of Savoy and the Low
Countries, and also of the Emperor's court. When the League ofCambrai was
formed, in 1508, the full powers of both Imperial and French negotiators were
drawn up in French, but the ratifications were in Latin. Henry VI of England
wrote to Charles VII of France in French, and that language was usually
employed both in writing and speaking between the two countries. At the end
of the sixteenth century the King ofFrance no longer writes Latin except to the
King of Poland, to such an extent had the use of French gained ground. 2
7.2.
7.3.
The treaties ofWestphalia (1648) were in Latin. The Treaty of30January 1648
between Spain and the United Provinces, by which the independence of the
latter was recognised, was in French and Dutch, but Latin was used for all
communications between France and the Empire up to the time of the French
Revolution. 4 The Anglo-Danish Treaty of II July 1670 was in Latin; also the
Anglo-Dutch Treaty of 1674; but the Treaty of Alliance of 1677-8 was in
French. The Treaty of the Grand Alliance of 7 September 1701 was in Latin,
and likewise that of 16 May 1703 between Great Britain, the Emperor and the
States-General, members of the Grand Alliance and Portugal. In 171 1 Queen
39
Anne wrote to her allies in Latin, and the full powers given to her
plenipotentiaries for the Congress of Utrecht were in the same language. But at
the first conference, in 17 I 2, the English demands were presented in French, as
were also those of Prussia, Savoy and the States-General. The Commercial
treaty between England and France of I I April 1713 was in Latin, certain
forms appended were in Latin and French, and the Queen's ratification was in
Latin. But the certificate of the exchange of ratifications was drawn up in
French. The treaties signed on the same day by France with Portugal, Prussia,
the Duke of Savoy and the States-General were in French. Sweden and
Holland exchanged correspondence about the same period in Latin, but Peter
the Great used French. On 13 July 17 I 3 Spain and Savoy signed a treaty of
peace in Spanish and French, while the treaty of peace of 7 September 17 14,
signed by the Emperor and the Empire with France, was in Latin. Russia used
German in her early treaties with Brandenburg; with Austria, German, Latin
and French on different occasions, but from about the middle of the eighteenth
century always French; with England always French from 17 I 5 onwards. 5
7.4.
7.5.
A similar article was attached to the Treaty of Paris of 1763, between Great
Britain, France and Spain, and to the Treaty of Versailles of 1783, between
Great Britain and France. 6 Article 120 of the Final Act of the Congress of
Vienna declared that:
'La langue franc;aise ayant ete exclusivement employee dans toutes les copies du
present traite, il est reconnu par les Puissances qui ont concouru a cet acte que l'emploi
de cette langue ne tirera point a consequence pour l'avenir; de sorte que chaque
Puissance se reserve d'adopter, dans les negociations et conventions futures, la langue
dont elle s'est servie jusqu'ici dans ses relations diplomatiques, sans que le traite actuel
puisse etre cite comme exemple contraire aux usages etablis.'7
7.6.
In March 1753, on the occasion of the settlement of prize claims under the
declaration of 8 July 1748, between Great Britain, France and the StatesGeneral, the French commissioners proposed to return to the British a
memorandum presented by them, on the ground of its being drawn up in the
English language, and claimed a prescriptive right to have all transactions
carried on in French. The British Government sent instructions to Paris, stating
that out of complaisance they had at first usually accompanied the English
memoranda (or memorials) with a French translation, but the French
commissioners having found fault with its wording, the commissioners had
been ordered to confine themselves in future to the English language; the
French commissioners having now, however, demanded the use of French as a
right, to comply would be to establish a precedent; and it was added:
'All nations whatsoever have a right to treat with each other in a neutral language.
As such, the French is made use of in transactions with the princes of the Empire and
other foreign Powers, and if the Court ofVersailles thinks fit to treat with His Majesty in
Latin, the King will readily agree to it. ... It is the King's express command that you
40
should not for the future accept any paper from the French commissaries in their own
language, unless they shall engage to receive the answer ... returned to it in English.'
7.7.
In 1800 Lord Grenville introduced the practice ofconducting his relations with
foreign diplomatists accredited to the Court ofStJames's in English instead of
French, the language previously employed. Lord Castlereagh, when at the
headquarters of the Allied Powers in 1814- 15, wrote in English to the foreign
sovereigns and ministers. Canning, in 1823, discovered that the British
representative at Lisbon was in the habit ofwriting in French to the minister for
foreign affairs, although the latter addressed him in Portuguese; he therefore
instructed him to use English in future. In 1826 a controversy arose with the
Prussian Government in consequence ofCount Bernstorffs refusal to receive an
English note from the British representative, 8 on the ground that it was the
offical rule to receive such communications only when written in French or
German. The question remained in abeyance until 1831, when the British
minister was instructed to use English in future. In 1851, the President of the
German Diet having set up the pretension to receive translations of notes
addressed to that body, Lord Palmerston instructed the British representative
that in the opinion of Her Majesty's Government every government was
entitled to use its own language in official communications, on the ground that
it is more certain of expressing its meaning in its own language. He regarded as
objectionable the practice of furnishing a translation, because it led to the
translation being treated as an original in place of the English version.
7.8.
Since that time the right of a British diplomatic agent to use his own language
for communications to the government to which he is accredited does not seem
to have been further contested, the right claimed by Great Britain being
recognised by her as appertaining to every other state. While this right of the
representative of every nation to use the official language of that nation is now
generally accepted, there is no universal rule making obligatory the use of one
language rather than another, and practice varies. At many posts it is
customary to accompany a note which has been by deliberate preference
written in the language ofthe sender, with a translation into the language ofthe
receiving country, typed on plain paper and bearing, if necessary, an
indication (to overcome Lord Palmerston's objection) that it is strictly without
official status. This practice is not merely a courtesy; it may sometimes be
advisable in order to avoid on the one hand delay, or on the other the possibility
of misinterpretation. Occasionally, when the languages of the sending or
receiving state (or both) are not widely known, there may be mutual agreement
to use English or French as a convenient medium of communication. But it
would be rare for translators to be so scarce nowadays in countries which
entertained diplomatic relations that an arrangement of this kind would
become necessary. In the past this was not always so, as is shown in an anecdote
related to Dr Busch by Count Bismarck: 9
By the way, Keudell, he said suddenly, it just occurs to me that I must get a full power
from the King to-morrow - in German ofcourse. The German Emperor may only write
in German, the Minister may be guided by circumstances. Official correspondence
should be conducted in the language of the country and not in that of the foreign one.
Bernstorff tried to carry out that idea here, but he went too far. He used to write to all
Official communications
4I
diplomats in German, and they all replied - by arrangement ofcourse - in their mother
tongue, Russian, Spanish, Swedish, and what not, so that he had to keep a whole staffof
translators at the Ministry. That was how I found things when I took office. Budberg
sent me a note in Russian. That wouldn't do. If they wanted their revenge, Gortschakoff
would have to write Russian to our Minister at Petersburg. That would be the correct
course. It might be permissible to require foreign representatives to know and use the
language of the country to which they are accredited. But to reply in Russian to me in
Berlin to a note in German was unreasonable. So I laid it down that anything received
which was not in German, French, English or Italian should be left untouched and put
away in the archives. Budberg then wrote complaint after complaint - always in
Russian. No reply! The notes were put away in the presses. Finally he came himself and
asked why I didn't reply. 'Reply?' I said in astonishment - 'what to? I have seen nothing
from you.' Now, he had written weeks before, and had sent several reminders. I told
him, if I remember right, that a pile of documents in Russian were lying downstairs, and
that his notes were probably among them; but that downstairs no one understood
Russian, and anything in an undecipherable language was pigeon-holed. It was then
agreed, if my memory serves, that Budberg would write in French, and the Foreign
Ministry also occasionally. (Translation.)
7.9.
Official communications
7.10.
42
scrupulous. Even the size and type of paper to be used, for instance, in different
kinds of correspondence are important in as much as they lend an appropriate
degree of gravity to the matter they contain. Any impression of casualness in
this respect is to be avoided. It sometimes happens that sensitivity in such
matters is keenest in those countries where it is least expected.
7. I
I.
Essentially a Note is a formal personal letter. The traditional French terms used
to indicate its component parts are:
I.
2.
3
4.
5.
6.
7. I 2.
The above is the formal outline of a Note written in the first person. It is typed
on the ambassador's correspondence paper, in preference to foolscap. In British
and French usage the appel and the courtoisie are frequently handwritten.
7. I 3
7. I 4
The third person Note is often called a Note Verbale. The idea originally implicit
in this term was that it embodied the substance ofan oral communication, or of
a conversation, of the wording ofwhich it constituted a formal record, although
not designed for publication. The title Note Verbale is sometimes written at the
top of the paper.
7. I 5.
Official communications
43
date, the embassy's stamp, and the drafter's initials. Below this again, the
reclame.
7. I 6.
7. 1 7.
7.18.
On the occasion of the annexation of Bosnia and Herzegovina by AustriaHungary in I g08, that Government informed the other governments who were
parties to the Treaty of Berlin, 1878, of the signature of a Protocol with the
Turkish Government, and requested their assent to the abrogation ofArticle 25
of that treaty. The Powers, one after another, notified their consent. The Note
of the German Ambassador was in the third person:
The Imperial and Royal Austro-Hungarian Government having informed the
Imperial German Government of the signature of the Protocol relating to Bosnia and
Herzegovina, which has been concluded with the Sublime Porte, and having further
requested assent to the abrogation of Article 25 of the Treaty ofBerlin, the undersigned
Imperial German ambassador, under instructions from his Government, has the honour
to make known to His Excellency Baron von Aehrenthal, the Imperial and Royal
Minister of the Imperial and Royal House and of Foreign Affairs, that the Imperial
Government formally and without reserve gives its assent to the abrogation of Article 25
of the Treaty of Berlin.
The Undersigned, etc.
VON TSCHIRSCHKY.
44
7.19.
The mandates for Togoland accepted by the United Kingdom and France
provided for the delimitation by a mixed commission of the respective zones as
recorded in the agreement between the two governments of loJuly 1919. This
having been completed, the French Ambassador at London addressed a Note
Verbale to His Majesty's Secretary of State for Foreign Affairs:
Comme le sait son Excellence le Principal Secretaire d'Etat de Sa Majeste
Britannique aux Affaires etranghes, des conversations ont eu lieu entre I' Ambassade de
Sa Majeste Britannique it Paris, les Ministeres des Affaires etrangeres et des Colonies, en
vue de proceder it la delimitation des zones franc;aise et anglaise du mandat sur le Togo.
Une mission franco-anglaise ayant prepare un abornement definitif, dont le projet a
ete arrete it Lome par les Commissaires franco-anglais, un rapport commun fut etabli
ainsi que ses annexes (description de la frontihe et jeu de cartes) en trois originaux dans
chacune des langues franc;aise et anglaise et le tout signe it Lome le 21 octobre 1929.
Deux de ces originaux ont dii etre addresses it son Excellence le Principal Secretaire
d'Etat pour les Affaires etrangeres, l'un pour etre examine par le Gouvernement de Sa
Majeste Britannique et garde dans ses archives, I'autre, afin d'etre transmis au Conseil
de la Societe des Nations, lorsque les Gouvernements britannique et franc;ais se seront
notifie leur accord respectif it la frontihe proposee.
L'Ambassadeur de France a ete prie par son Gouvernement de faire savoir it son
Excellence le Principal Secretaire d'Etat de Sa Majeste Britannique aux Affaires
etrangeres que M. Briand a rec;u I'exemplaire qui lui etait destine, qu'ill'a soumis au
Gouvernement de la Republique et que le projet de frontihe ainsi tracee a obtenu son
agrement.
L'abornement definitif sur les lieux ne devant etre efTectue que lorsque les deux
Gouvernements se seront notifie leur mutuel accord, M. de Fleuriau serait tres
reconnaissant it Mr. Henderson de bien vouloir lui faire connaitre le plus tot possible
I'adhesion du Gouvernement britannique. 11 saisit, etc.
Ambassade de France, Londres,
le 30 janvier 1930.
The reply of the British Secretary of State for Foreign Affairs was in the first
person, and as the correspondence 12 furnishes an example of a joint Note
addressed by the French and British representatives to the Secretary-General
of the League of Nations, this also is given below:
Foreign Office,
August 19, 1930.
YOUR EXCELLENCY,
On the 30thJanuary last you were good enough, to address to me a note stating that
the French Government had given their approval to the boundary line defined in the
report of the British and French Commissioners appointed to define the frontier
between the British and French mandated territories in Togoland.
2. I am now in a position to inform Your Excellency that His Majesty's Government
in the United Kingdom have approved this report, and I have the honour to suggest
that, if the French Government concur, steps should be taken to communicate to the
Secretary-General of the League of Nations the third copy of the report, with the maps
attached thereto, which was forwarded to London by the Governor ofthe Gold Coast. I
beg leave accordingly to transmit herewith, for the consideration of the French
Government, the draft of the note which I would propose to address to the Secretary-
Official communications
45
General and to request that I may be informed whether the French Government would
agree to address a similar note to Sir Eric Drummond.
I have, etc.
Geneve,
le 23 Septembre
M.
1930.
LE SECRETAIRE GENERAL,
Conformement aux instructions que nous avons rec;ues des Ministres des Affaires
etranghes de nos Gouvernements respectifs, nous avons l'honneur de porter a votre
connaissance que le Gouvernement franc;ais et le Gouvernement de Sa Majeste
Britannique dans le Royaume-Uni de Grande-Bretagne et d'lrlande du Nord ont
approuve par echange de notes le Rapport final en trois exemplaires, date de Lome, le
21 octobre 1929, presente par la Commission mixte de Delimitation des Territoires du
Togo places sous le mandat des deux Hautes Parties Contractantes respectivement, en
vertue de l'article ler des mandats conferes par la Societe des Nations a la date du 20
juillet 1922.
Le depot aux archives de la Societe des Nations du troisieme exemplaire original
dudit Rapport final et des cartes y annexees s'effectue en meme temps que celui de la
presente note. Ces documents donnent la description exacte de la frontihe telle qu'elle a
ete determinee sur le terrain et portent les signatures des chefs de la mission.
Agreez, etc.
R.
MASSIGLI.
ALEXANDER CADOGAN.
,.20.
'.2 I.
46
action running counter to the said obligation as affecting themjointly and individually.
In the same sense, the treaty States could guarantee in this pact the fulfilment of the
obligation to demilitarise the Rhineland which Germany has undertaken in articles 42
and 43 of the Treaty of Versailles. Again, arbitration agreements of the kind defined
above between Germany and all those States which were ready on their side to accept
such agreements could be combined with such a pact.
To the examples set out above still other possibilities of solution could be linked.
Furthermore, the ideas on which these examples are based could be combined in
different ways. Again, it would be worth considering whether it would not be advisable
so to draft the security pact that it would prepare the way for a world convention to
include all States along the lines of the 'Protocole pour le Reglement pacifique de
Differends internationaux' drawn up by the League of Nations, and that, in case sucha
world convention was achieved, it could be absorbed by it or worked into it.
7. 22 .
( 1)
Budapest,
le 4 novembre, 1921.
M. LE MINISTRE,
47
Official communications
Budapest,
le 5 novembre,
192 I.
M. LE MINISTRE,
le
12
Budapest,
novembre,
1921.
M. LE MINISTRE,
7.23.
Identic Notes. These are not always exactly similar. It is, however, desirable that
48
7.24.
Treaties are nowadays frequently concluded in the form ofan Exchange oj.Notes.
This subject is fully dealt with in 29 34-9.
7. 2 5.
In British usage, Despatch is the name given to a formal letter from the Secretary
of State for Foreign and Commonwealth Affairs to a head ofmission abroad, or
vice versa; or from one head of mission to another. In the latter case a copy is
normally sent to London.
Semi-official correspondence
49
It has long been the custom, though it seems not to be invariably so today, in
writing a despatch to the Secretary ofState, to begin with the phrase 'I have the
honour ... ' or to contrive to include it in the introductory sentences of the
despatch.
7.28.
Semi-official correspondence
7.29.
None of the rules and conventions described in the foregoing section on official
communications will of course exclude the use, at their personal discretion in
certain circumstances, of a semi-official form of address between the Secretary
of State and an ambassador, or between one head of mission and another. This
will be a letter, not a Note, and may begin 'My dear Ambassador,' or 'My dear
Secretary of State,' and end 'Yours sincerely,' or in whatever way the writer
judges most suitable to the occasion. Such semi-official forms are tending to be
used with greater frequency internally in the British service; and they are by no
means unknown in foreign capitals, though, as they obey no generally accepted
rules, they do not provide a conventional vehicle for formal communications.
7.30.
50
enjoined upon legislators and other debaters, and they are preferable to the
'diplomacy by insult' practised by early Byzantine rulers and by like-minded
empire-builders of the twentieth century. In matters oflanguage the art of the
diplomatist, as observed by Andre Maurois, 16 is that ofexpressing hostility with
courtesy, indifference with interest, and friendship with prudence.
7.3 I.
Bout de papier
7.32.
The preceding paragraphs have been concerned with the official forms of
written communication. An unofficial and personal adjunct to oral communication frequently used is known as a bout de papier. When an ambassador or a
member of his staff makes an appointment to discuss some matter semiofficially with a foreign representative, or in the ministry of foreign affairs, he
sometimes has typed on a piece of plain paper a few lines of notes to assist his
memory. He may decide to leave this piece of paper (which is much more
informal than an aide-memoire) with the person to whom he has been speaking,
in order to ensure that there will be no room for doubt regarding the main
points which he has sought to make. The recipient generally finds this helpful
and is grateful for it, especially if the conversation has been in a language in
which one or other participant is only moderately proficient. The piece of
paper is prepared in such a way that it bears no attribution. While it is thus
both a personal courtesy and a practical convenience, it cannot be claimed by
either side as possessing any official status.
7.33.
In different circumstances a bout de papier discreetly passed across the table has
saved the situation in many a conference about to founder on the apparent
inability of either side to move towards a mutually agreeable formula. One
side, let us suppose, has worked out a proposition ofwhich it cannot possibly go
on record as the proposer, but which, in the interests of cooperation, it could
agree to recommend for its government's consideration, if the other side were to
advance it. The anonymous piece ofpaper therefore contains some such form of
words as 'If you felt able to propose . . . I should be prepared to try it on my
Government.' Such a piece of classic give and take can often produce a
surprisingly happy result. But if it only elicits a shake of the head, at least no
51
word has been spoken and no bones broken. In any case the procedure must be
nicely judged and depends, like most good diplomacy, on mutual confidence
and respect between negotiators. It would be worse than useless if the opposing
delegation were of the kind that aimed not at agreement but at scoring points
for the sake of publicity.
'.35.
Its proper interpretation is the literal one - the 'casting back,' in other words
the return to the sender of the actual document itself. 18 This occurs but rarely
and the reason for the 'rejection' is usually either the objectionable language of
the document in question, or that it is a gross interference with the internal
affairs of the addressee country, or both. A classic example of this was the
protest addressed to the British Government by the Soviet representative in
London in connection with the notorious 'Zinoviev letter.' This was 'rejected'
on the ground that, demanding the punishment of persons allegedly in the
employment or under the control of the British Government, it was an
interference in the internal affairs of the country. Shortly afterwards Mr (later
Sir Austen) Chamberlain, having succeeded Mr Ramsay Macdonald as
Secretary of State for Foreign Affairs, caused M. Rakowski to be informed that
no trace of the offending note could be found in the archives left behind by Mr
Macdonald, but that he, Mr Chamberlain, was acquainted with all the
circumstances and had no intention of departing from the decision that the
British Government could not consent to receive it.
'.36.
'.37.
The foregoing examples show the importance of the rule in handling incoming
papers that no mark of any kind should be made on a paper containing a
communication which it might be necessary to reject. If it is returned clean,
there will be no documentary evidence that it was ever received. It will thus
have no status and must be consigned, so to speak, to limbo. There are times
when it may be not only desirable but effective to deliver orally, if possible
before witnesses, a message which, if delivered in writing only, might be
expected to be rejected or ignored. Mr Charles Thayer records having once
52
thus delivered with great firmness and presence of mind an unwelcome but
vital message which would otherwise, it seemed certain, have run into the
sand. 20
7.38.
SIR,
Your Excellency will remember that on the 8th July, 1912, Mr. Mitchell Innes
communicated to the Secretary of State the objections which His Majesty's
Government entertained to the legislation relating to the Panama Canal, which was
then under discussion in Congress, and that on the 27th August, after the passing of the
Panama Canal Act and the issue of the President's memorandum on signing it, he
informed Dr. Knox that when His Majesty's Government had had time to consider fully
the Act and the memorandum a further communication would be made to him.
Knowing as I do full well the interest which this great undertaking has aroused in the
New World, and the emotion with which its opening is looked forward to by United
States citizens, I wish to add before closing this despatch that it is only with great
reluctance that His Majesty's Government have felt bound to raise objection on the
ground of treaty rights to the provisions of the Act. Animated by an earnest desire to
avoid points which might in any way prove embarrassing to the United States, His
Majesty's Government have confined their objections within the narrowest possible
limits, and have recognised in the fullest manner the rights of the United States to
control the Canal. They feel convinced that they may look with confidence to the
Government of the United States to ensurethat, in promoting the interests of United
States shipping, nothing will be done to impair the safeguards guaranteed to British
shipping by treaty.
Your Excellency will read this despatch to the Secretary of State and will leave with
him a copy.
I am, etc.,
E.
7.39.
GREY.
53
than his own individual recollection of it. He therefore felt bound not to listen to the
reading of the despatch without being allowed to take a copy of it, but was perfectly
willing to receive any communication in a written form. However, after they had left, he
noted down his understanding and impression of what they had said, and sent copies to
them for their approval or correction. These were returned to him - that from the
Russian ambassador considerably enlarged, and that from the Austrian ambassador
with an alteration.
54
'.42.
'.43
In 1913 the Austro-Hungarian Chancery still used Latin for Imperial and
Royal letters:
Serenissime et potentissime Princeps, Consanguinee et Frater carissime....
Maiestatis Vestrae Bonus Frater
Franciscus Josephus.
Dabantur Viennae, die ... mensis....
CHAPTER 8
SIR
8.2. Or, in the case of a republic, a Lettre de Chancellerie, in such terms as these:
Elizabeth the Second, by the Grace of God of the United Kingdom of Great Britain
and Northern Ireland and of Her other Realms and Territories Queen, Head of the
Commonwealth, Defender of the Faith, &c., &c., &c.
To the President of the Republic of Z. Sendeth Greeting!
Our Good Friend! Being desirous to maintain, without interruption, the relations of
friendship and good understanding which happily subsist between Our Realm and the
Republic of Z., We have made choice of Our Trusty and Well-beloved X. Y. to reside
with You in the character of Our Ambassador Extraordinary and Plenipotentiary.
Envoy Extraordinary and Minister Plenipotentiary.
The e'l:perience which We have had ofX. Y. 's talents and zeal for Our service assures
Us that the selection We have made will be perfectly agreeable to You; and that he will
discharge the important duties of his Mission in such a manner as to merit Your
approbation and esteem, and to prove himself worthy of this new mark of Our
56
confidence.
We therefore request that You will give entire credence to all that X.v. shall
communicate to You in Our name, more especially when he shall renew to You the
assurances of the lively interest which We take in everything that affects the welfare and
prosperity of the Republic of Z.
And so We commend You to the protection of the Almighty.
Given at Our Court ofSt. James's, the
day of.
One thousand
in the
Year of Our Reign.
Nine hundred and
Your Good Friend,
(Signed) ELIZABETH R.
8.3.
8.4.
Letters of recall
Letters of Recall may take the form of a Lettre de Cabinet as follows:
SIR My BROTHER
Having occasion elsewhere for the services of My Trusty and Well-beloved X.Y.,
who has lately resided at Your Majesty's Court in the
character of My Ambassador Extraordinary and Plenipotentiary
Envoy Extraordinary and Minister Plenipotentiary
I cannot omit to inform You of his recall.
(Or,)
My Trusty and Well-beloved X.Y., who has lately resided at Your Majesty's Court
in the character of My Ambassador Extraordinary and Plenipotentiary
Envoy Extraordinary and Minister Plenipotentiary'
being now on the point of retiring from My Foreign Service, I cannot omit to inform
You of the termination of his Mission in that capacity.
Having Myself had ample reason to be satisfied with the zeal, ability, and fidelity
with which X. V. has executed My orders on all occasions during his Mission, I trust that
Your Majesty will also have found his conduct deserving of Your approbation and
esteem, and in this pleasing confidence I avail myself ofthe present opportunity to renew
to You the assurances of the invariable friendship and cordial esteem with which I am,
Sir My Brother,
Your Majesty's
Good Sister
ELIZABETH R.
Our Court of St. James's.
To My Good Brother The King of
Letters of recall
8.5
57
8.6.
58
Votre Majeste. Sur ce, Nous prions Dieu qu'Il ait Votre Majeste en Sa sainte et digne
garde.
Donne a Petersbourg, le 8 fevrier, 1884, de Notre Regne la troisieme annee.
De Votre Majeste l'afTectionne Frere et Cousin,
ALEXANDRE.
(Countersigned) N. GIERS.
A Sa Majeste la Reine du
Royaume-Uni de la GrandeBretagne et d'Irlande, Imperatrice
des Indes.
8.7.
Full powers
8.8. A diplomatic agent to whom a particular negotiation is entrusted for the
conclusion of a treaty or convention, or an agent who is deputed to take part in
a congress or conference for a similar purpose, requires as a general rule a
special authorisation, called a full power,2 from the head of the state whom he
represents; or, it may be, from its government, if the proposed treaty
arrangement is to be between governments.
8.g.
The use of full powers has a long history going back through the Middle Ages to
the Roman plena potestas conferred on a proctor for legal transactions. It became
in due course an established rule that only the bestowal of full powers gave an
ambassador authority to commit his sovereign. The object of conferring them
Full powers
59
was to be able to dispense, as far as possible, with the long delays needed in
earlier times for referring problems back to higher authority. Their use at the
present day is a formal recognition of the necessity for absolute confidence in
the authority and standing of the negotiator. 3
8.10.
Before the signature of a treaty or convention, etc. it is the rule that the full
powers of the plenipotentiaries must be exhibited for verification. In the case ofa
bilateral treaty this usually takes place at the ministry for foreign affairs prior to
the signature of the treaty; in the case of a multilateral treaty, the duty
automatically devolves upon the headquarters government, viz, that of the
state wherein the treaty is signed, or the international organisation under whose
auspices the treaty is concluded; in the case of a conference a small
subcommittee is often appointed 4 at the outset to receive and examine the full
powers of the representatives of the various states taking part.
8. I
I.
8. I 2.
Formerly, when a congress was held under the superintendence ofone or more
mediators, the full powers of the plenipotentiaries were handed to them for
verification. At the conferences of Constantinople (1876-7) and Berlin (1884)
the plenipotentiaries appointed ad hoc alone produced full powers, which were
held to be unnecessary in the case of the resident diplomatic agents who
represented their governments on those occasions.
8. I 3.
In the eighteenth century the King of England and the Emperor conferred full
powers in the Latin language; France and Russia used French, Spain Spanish
and the United States English. For the definitive Treaty of Peace with the
United States of 3 September 1783, the King's full power was also in English.
Latin was used for this purpose as late at least as 1806, for the full powers given
first to Lord Yarmouth, and afterwards to Lord Lauderdale in conjunction
with him, for the abortive peace negotiations at Lille.
8. 14.
Full power, dated 23 April 1783 to the Duke of Manchester for negotiating a
treaty of peace with France:
(Signature) Georgius R.
Georgius Tertius, Dei Gratia, Magn<e Britanni<e, Franci<e, et Hiberni<e, Rex, Fidei
Defensor, Dux Brunsvicensis et Luneburgensis, Sacri Romani Imperii ArchiThesaurarius, et Princeps Elector, etc. Omnibus et singulis ad quos pr<esentes h<e liter<e
pervenerint, salutem! Cum ad pacem perficiendam inter nos et bonum fratrem nostrum
Regem Christianissimum, qU<e jam signatis apud Versalios, die vicesimo mensis
60
8.I"S.
The full powers given in 1806 to Lord Yarmouth in the first instance, and
afterwards to Lord Lauderdale and Lord Yarmouth conjointly, were worded
in the same manner. Napoleon's full power to General Clarke on the same
occasion ran as follows:
Napoleon par la grace de Dieu, et les constitutions, Empereur des Franc;ais, Roi
d'ltalie, prenant entiere confiance dans la fidelite pour Notre personne, et le zeIe pour
Notre service de Monsieur le General de division Clarke, Notre conseiller intime du
cabinet, et grand officier de la Legion d'honneur, Nous lui avons donne, et lui don nons
par les presentes, plein et absolu pouvoir, commission, et mandement special, pour en
notre nom, et avec tel ministre de Sa Majeste Britannique dument autorise a cet effet,
convenir, arreter, conclure, et signer, tels traites, articles, conventions, declarations, et
autres actes qu'il avisera bien etre; promettons d'avoir pour agreable et tenir ferme et
stable, accomplir et executer ponctuellement tout ce que le dit plenipotentiaire aura
promis et signe en vertu des presents pleins-pourvoirs, comme aussi d'en faire expedier
les lettres de ratification en bonne forme, et de les faire delivrer pour etre echangees dans
le terns dont il sera convenu.
En foi de quoi Nous avons donne les presentes de notre main, contresignees et munies
de Notre sceau Imperial.
Full powers
6I
A St. Cloud, le vingt-un juillet an mil huit cent six, de Notre regne le second.
NAPOLEON.
MAu. TALLEYRAND,
Prince de Benevent. 7
8. 16.
At the present day the full powers issued to representatives for such purposes as
the negotiation and signature of a treaty, or the settlement in a similar manner
at a congress or conference of some question of international concern, vary
greatly in form, according to the particular constitution or the settled practice
of the country which issues them. The form used in the United Kingdom for the
signature of a treaty or convention between heads of states is that of Letters
Patent, as shown in 8. 1 7, and the wording, it will be seen, follows in general that
of the past (8.14) though the use of Latin for such purposes has long been
discontinued. Many countries adopt a similar formal style; in the case ofothers
it may be simpler, and the phraseology employed may vary considerably.
Differences may exist also according to the degree of importance ascribed to the
treaty, or whether it is to be concluded between heads of states or, on the other
hand, between governments. The essential feature ofall such documents is that
they should show by their terms that the representative to whom they are issued
is invested with all necessary authority on the part ofthe state concerned to take
part in the negotiations pending, and to conclude and sign, subject if necessary
to ratification, the treaty instrument which may result from these negotiations.
8.17
The form of special full power issued by the Court ofSt.James's for the purpose
of a treaty or convention between heads of states is as follows:
(Signature) Elizabeth R.
Elizabeth the Second, by the Grace of God, of the United Kingdom ofGreat Britain
and Northern Ireland and of Her other Realms and Territories Queen, Head of the
Commonwealth, Defender of the Faith, etc., etc., etc.
To all and singular to whom these Presents shall come, Greeting!
Whereas for the better treating of and arranging certain matters which are now in
discussion, or which may come into discussion, between Us, in respect of Our United
Kingdom of Great Britain and Northern Ireland, and
.
We have judged it expedient to invest a fit person
concerning
with Full Power to conduct the said discussion on Our part in respect of Our United
Kingdom of Great Britain and Northern Ireland; Know Ye, therefore, that We,
reposing especial Trust and Confidence in the Wisdom, Loyalty, Diligence and
Circumspection of Our
have named, made, constituted and appointed, as We do by these presents name, make, constitute and appoint
him Our undoubted Commissioner, Procurator and Plenipotentiary, in respect of Our
United Kingdom of Great Britain and Northern Ireland, for the purpose aforesaid.
Giving to him all manner of Power and Authority to treat, adjust and conclude with
such minister or ministers, Plenipotentiary or Plenipotentiaries, as may be vested with
any Treaty,
similar Power and Authority on the part of..
Convention, Agreement, Protocol or other Instrument that may tend to the attainment
of the above-mentioned end, and to sign for Us, and in Our Name, in respect of Our
United Kingdom of Great Britain and Northern Ireland, everything so agreed upon and
concluded, and to do and transact all such other matters as may appertain thereto, in as
ample manner and form, and with equal force and efficacy, as We Ourselves could do, if
62
personally present; Engaging and Promising, upon Our Royal Word, that whatever
things shall be so transacted and concluded by Oursaid Commissioner, Procurator and
Plenipotentiary, in respect of Our United Kingdom of Great Britain and Northern
Ireland, shall, subject if necessary to Our ratification, be agreed to, acknowledged and
accepted by Us in the fullest manner, and that We will never suffer, either in the whole
or in part, any person whatsoever to infringe the same, or act contrary thereto, as far as it
lies in Our power.
In witness whereof, We have caused Our Great Seal to be affixed to these Presents,
which We have signed with Our Royal Hand.
Given at Our Court of St. james's, the
day oL
, in the Year of Our
Lord one thousand nine hundred and
and in the
year of Our Reign
8. I 8.
The following is the form of a general full power such as is at present held 8 by
the Secretary of State for Foreign and Commonwealth Affairs, ministers of
state, parliamentary under-secretaries, and the permanent representatives at
the United Nations and the European Communities in order to enable them to
negotiate and sign any treaty on behalf of the United Kingdom:
(Signature) Elizabeth R.
Elizabeth the Second, by the Grace of God of the United Kingdom of Great Britain
and Northern Ireland and of Her other Realms and Territories Queen, Head of the
Commonwealth, Defender of the Faith, &c., &c., &c. To all and singular to whom these
Presents shall come, Greeting!
Whereas, for the better treating of and arranging any matters which are now in
discussion, or which may come into discussion, between Us, in respect of Our United
Kingdom of Great Britain and Northern Ireland and any other Powers or States, We
have judged it expedient to invest a fit person with Full Power to conduct negotiations
on Our part in respect of Our United Kingdom of Great Britain and Northern Ireland:
Know ye, therefore, that We, reposing especial Trust and Confidence in the Wisdom,
have named,
Loyalty, Diligence, and Circumspection ofOur
made, constituted and appointed, as We do by these Presents name, make, constitute
and appoint him Our undoubted Commissioner, Procurator and Plenipotentiary in
respect of Our United Kingdom of Great Britain and Northern Ireland; Giving to him
all manner of Power and Authority to treat, adjust and conclude with such Ministers,
Commissioners or Plenipotentiaries as may be vested with similar Power and Authority,
on the part ofany other Powers or States, any Treaty, Convention, Agreement, Protocol
or other Instrument between Us and such Powers or States, and to sign for Us, and in
Our name, in respect of Our United Kingdom of Great Britain and Northern Ireland,
everything so agreed upon and concluded, and to do and transact all such other matters
as may appertain thereto, in as ample manner and form, and with equal force and
efficacy, as We Ourselves could do, if personally Present: Engaging and Promising,
upon Our Royal Word, that whatever things shall be so transacted and concluded by
Our said Commissioner, Procurator and Plenipotentiary, in respect of Our United
Kingdom of Great Britain and Northern Ireland, shall, subject if necessary to Our
Ratification, be agreed to, acknowledged and accepted by Us in the fullest manner, and
that We will never suffer, either in the whole or in part, any person whatsoever to
infringe the same, or act contrary thereto, as far as it lies in Our power.
In witness whereof We have caused Our Great Seal to be affixed to these Presents,
which We have signed with Our Royal Hand.
Given at Our Court of St. james's the
day of
in the Year of
Our Lord, One Thousand Nine hundred and
and in the
Year
of Our Reign.
Full powers
8. I g.
63
In the case of an agreement between governments, the form offull power issued
by Her Majesty's Secretary of State for Foreign Affairs is as follows:
Whereas for the better treating of and arranging certain matters which are now in
discussion, or which may come into discussion, between the Government of the United
Kingdom ofGreat Britain and Northern Ireland and the Government of..
.
relative to
it is expedient that a fit person should be invested
with Full Power to conduct the said discussion on the part of the Government of the
United Kingdom of Great Britain and Northern Ireland; 1..
.
Her Majesty's Principal Secretary of State for Foreign and Commonwealth Affairs, do
hereby certify that
is by these presents named, constituted
and appointed as Plenipotentiary and Representative having Full Power and
Authority to agree and conclude, with such Plenipotentiary or Representative as may
be vested with similar Power and Authority on the part of the Government
of..
, any Convention or Agreement that may tend to the attainment of the
above-mentioned end, and to sign for the Government of the United Kingdom ofGreat
Britain and Northern Ireland everything so agreed upon and concluded. Further I do
hereby certify that whatever things shall be so transacted and concluded by the said
Plenipotentiary and Representative, shall, subject if necessary to ratification by the
Government of the United Kingdom of Great Britain and Northern Ireland, be agreed
to, acknowledged and accepted by the said Government of the United Kingdom of
Great Britain and Northern Ireland in the fullest manner.
In witness whereof I have signed these Presents, and affixed hereto my seal.
Signed and sealed at the Foreign and Commonwealth Office, London, the......... day
of..
, in the Year of our Lord 19 ..
(Seal)
(Signature of Secretary of State.)
8.20.
A French example:
Vincent Auriol, President de la Republique Franc;aise,
A tous ceux qui ces presentes Lettres verront, Salut;
Un Accord complementaire a la Convention generale franco-britannique du 28
janvier 1950, relative aux regimes de securite sociale applicables en France et en Irlande
du Nord, devant etre prochainement signe a Paris, A Ces Causes, Nous confiant
entierement en la capacite, zeIe et devoument de Monsieur Pierre Garet, Ministre du
Travail et de la Securite Sociale, et de Monsieur Jean-Charles Serres, Ministre
Plenipotentiaire, Directeur des Affaires Administratives et Sociales au Ministere des
Affaires Etrangeres, Nous les avons nommes et constitues Nos Plenipotentiaires a l'effet
de negocier, conclure et signer avec le ou les Plenipotentiaires egalement munis de
Pleins Pouvoirs de la part de leur Gouvernement, tels Convention, Declaration ou Acte
quelconque qui seront juges necessaires dans l'interet de ces Pays.
Promettons d'accomplir et d'executer tout ce que Nos dits Plenipotentiaires auront
stipule et signe au nom du Gouvernement de la Republique Franc;aise sans permettre
qu'il y soit contrevenu directement ou indirectement ou de quelque maniere que ce soit.
En Foi de Quoi, Nous avons fait apposer aces presentes le Sceau de la Republique
Franc;aise.
Fait a Paris, le
12
mal
1952.
(Seal)
Le President du Conseil
des Ministres,
(Signed) ANT. PINA Y .
(Signed) V. AURIOL.
Par le President de la Republique
Le Ministre des Affaires Etrangeres
(Signed) ScHUMAN.
64
8.2 I.
BOOK 11
Diplomatic agents in
general
Chapter
10
I I
12
13
14
15
16
17
18
19
20
2I
22
23
24
25
Right of legation
The selection of diplomatic agents
Classification of diplomatic agents
Persona grata
Diplomatic agent proceeding to his post
Privileges and immunities of diplomatic missions
Immunities of diplomatic agents
Privileges of diplomatic agents
Families, junior staff and local nationals
Diplomatic agents in third states
Special missions
The diplomatic body (corps diplomatique)
Termination of a diplomatic mission
Breach of diplomatic relations
Attacks on embassies
Kidnapping of diplomats
Diplomacy and radio
67
76
82
89
94
106
120
135
143
15 1
15 6
161
174
18 7
19 2
199
20
CHAPTER 9
Right of legation
9. I.
According to the principles which have been recognised since the time of
Grotius 1 and restated in Article 2 of the Vienna Convention on Diplomatic
Relations of 196 I, both the establishment of diplomatic relations between
states and the establishment (which is legally distinct) of permanent diplomatic
missions take place by mutual consent. Every recognised independent state is
held to be entitled to send diplomatic agents to represent its interests in other
states, and reciprocally to receive such agents; and the right of legation has
been generally regarded as an attribute of sovereignty.
9.2.
9.3.
In the past, treaties were often concluded expressly stipulating the right to
exchange diplomatic representatives. In 16 I 4, for example, it was provided by
a treaty between Sweden and Holland that the two states should mutually
accredit resident envoys. Holland had a similar agreement, also of 16 I 4, with
Brandenburg, Anhalt, Baden, Oettingen and Wiirttemberg. The Treaty of
Belgrade, 1739, between Russia and the Porte, provided that the former might
have a resident minister at Constantinople, of whatever category the Russian
sovereign might determine; and by Article V of the Treaty of KutchukKainardji, 1774 (10 January 1775), it was settled that the Russian
representative should always be of the second class, taking rank immediately
after the Imperial German minister; but if the latter were of a higher or lower
category, then the Russians to have precedence immediately after the Dutch,
or, in his absence, after the Venetian Ambassador. 2
9.4
After the setting up of the new Turkish State under Mustapha Kemal in 1923,
treaties were concluded establishing diplomatic relations with Austria,
Czechoslovakia, Germany, Hungary) the Netherlands, Norway, Poland,
Spain, Sweden, the USSR and Yugoslavia. By the Treaty of Rapallo on 16
April 1922, Germany resumed diplomatic relations with Russia; and the Soviet
Union subsequently concluded treaties with various other countries to the
same effect.
68
Right of legation
9.5.
9.6.
9.7.
During the Second World War, President Franklin Roosevelt created a mission
to the Holy See headed by Mr Myron Taylor with the personal, unofficial title
of Ambassador. Mr Taylor retired in 1951 but when a successor was nominated,
objections were raised both among the public and in the Senate. In 1969
President Nixon appointed former Senator Henry Cabot Lodge as his personal
representative to the Holy See with no official diplomatic title and thus no need
for senatorial confirmation. He was allotted a small resident staff Mr Lodge
was succeeded in 1977 by Mr Douglas Waiters, appointed by President Carter
as 'Special Representative to the Holy See', but without official title or personal
rank of Ambassador. Britain is now regularly represented at the Vatican by a
minister, and the Pope is represented in Britain by an apostolic delegate without diplomatic status but with unofficial access to the Government. At the
middle of this century there were as many as thirty nuncios representing the
Vatican abroad.
69
Diplomatic functions
9.8.
9.10.
9.1 1.
On the occasion of the serious illness of King George V in 1928 His Majesty
signed Letters Patent authorising the issue of a Commission under the Great
Seal creating a Council of State, composed of the Queen, Prince ofWales, Duke
of York, Archbishop of Canterbury and the Prime Minister, who were
authorised to sign documents. 5 During the Royal Commonwealth Tour of
1953-4 the following were appointed Counsellors of State by Letters Patent in
accordance with the provisions of the Regency Acts of 1937, 1943 and 1953:
Queen Elizabeth the Queen Mother, the Princess Margaret, the Duke of
Gloucester, the Princess Royal and the Earl of Harewood. Formal documents
such as the credentials of ambassadors and ministers, full powers and
ratifications of treaties were signed on behalf of the Crown by the Regents.
9.12.
70
Right of legation
9. 1 4.
9. 1 5.
In the case of many sudden and decisive revolutionary changes, the British
representative has been instructed (following the present-day trend towards
7I
according recognition in the most informal manner possible, that is by the mere
continuance of relations) to inform the new government that the British
Government consider that diplomatic relations between the two countries were
in no way affected by the change.
9. 16.
9.17
In the case of the 1910 revolution in Portugal, official recognition was delayed
by the British Government until the new republic had been confirmed by a
general election, and until certain alterations, sufficient to protect British
church property in Portugal, had been made in the Constitution. Recognition
was accorded jointly with the Governments of Spain, Germany, Austria and
Italy, and was expressed in notes stating that, in view of the fact that the
Portuguese Constitution had been voted, the respective governments were glad
to join in the recognition of the republic.
9. I 8.
9.19.
The British note of I February 1924, to the Soviet Government stated that His
Majesty's Government recognised the Union ofSoviet Socialist Republics as the
de jure rulers of those territories of the old Russian Empire which acknowledged
their authority. By the amendments to the Soviet constitution of I February
1944, the sixteen constituent republics of the Union were enabled to establish
separate foreign offices and diplomatic services; and at the Dumbarton Oaks
Conference in August of that year the Soviet Representative, Mr Gromyko,
proposed the admission to the future United Nations of all sixteen republics.
The United States delegation was somewhat taken aback by this suggestion,
but it was observed that several self-governing members of the British
Commonwealth would be candidates for admission. In the event, the Soviet
Government reduced their demands to include only the Ukraine and
Byelorussia, whose membership was in due course accepted. But subsequent
enquiries addressed to the Soviet Government by other governments about the
72
Right of legation
On 16 February 1926 the Russian Consul-General in the Hedjaz sent Ibn Saud
a Note saying that the Russian Government recognised Ibn Saud's newly
proclaimed title of 'King', thus opening diplomatic relations. On 17 March
1927 there was an Exchange of Notes atJedda. From 1927 for several years the
Russians had a plenipotentiary representative at the court ofIbn Saud, but the
latter had no representative in Moscow.
9. 2 I.
Before the Second World War, Egypt and Iraq, being under treaties of
protection with the United Kingdom, and Syria and Lebanon, being under
treaties of protection with France, were unable to establish diplomatic relations
with third states. During the war, however, this status was altered, with the
result that Egypt was able to establish relations with the USSR on 23 August
1943, Syria on 26 July 1944, Lebanon on 5 August 1944 and Iraq on 13
September 1944.
9.22.
On 28 February 1966, four days after President Nktumah of Ghana had been
deposed by the Ghanaian Army in his absence from the country, the Ghanaian
High Commissioner-designate to London, whom Nkrumah himself had
proposed to send, flew from Peking to London and declared his loyalty to the
new Ghanaian Government as representing the State. The new Government
was recognised by Britain and by the United States on 4 March. Full
diplomatic relations between Britain and Ghana were re-established on 6
March, and a new British High Commissioner despatched on 9 March.
9.23.
In March 1975 the forces of the Khmer Rouge, having overrun large areas of
Cambodia and attacked Phnom Penh, warned all foreign diplomatic missions
in the capital that they should cease functioning. The French, whose mission,
after withdrawal of the Ambassador in 197 I and of the Charge d'Affaires in
1973, had remained in the charge of a Secretary, closed their diplomatic office
on 17 March, leaving a Consul in charge of French interests. The French
Embassy building however continued after the fall of Phnom Penh on 17 April
to provide a refuge for a number of diplomats and other foreigners until all
were obliged to leave the country at the end of the month. The British, who
since 1974 had been represented in Cambodia by their Ambassador in Saigon,
closed the Embassy office on 2 I March. The United States (the last functioning
foreign diplomatic mission) began evacuating their offices early in April.
Meanwhile the Soviet Government had on 28 March asked the Cambodian
Republic's Charge d'Affaires to leave Moscow, and forthwith recognised the
Royal Government of National Union headed by Prince Sihanouk. This new
Government, having established indisputable control of the greater part ofthe
national territory, was recognised by a number ofcountries in the second halfof
April and by the United Kingdom on 2 May. The French Government
accorded recognition on 12 April and handed over the keys of the Cambodian
Embassy in Paris to the representative of the Royal Government; but the
mission continued to use the flat which it had occupied during the civil war.
Prince Sihanouk stayed at the ambassadorial residence in October 1975, but as
the Royal Government made no attempt to establish diplomatic relations, the
73
French authorities closed the Cambodian Embassy at the end of the year.
9.24.
On the occasion, in April 1931, of the revolution in Spain and the departure of
the King of Spain from that country, the governments of most foreign states,
including those of the United Kingdom and the other Commonwealth
countries, forthwith recognised the new regime. The former Spanish
Ambassador in London, the Marques de Merry del Val, having resigned, a
charge d'affaires ad interim was appointed by the Provisional Government, and
in May Senor Perez de Ayala took up his appointment in London as
Ambassador Extraordinary and Plenipotentiary from the Provisional Government, being received in that capacity, and his name placed on the diplomatic
list. However, the British Ambassador in Madrid was not furnished with new
credentials pending the confirmation by popular vote of the new regime which
had been set up in Spain and the election of a constitutional President of the
Republic.
9.25.
On 4 November 1938, during the Spanish Civil War, the British Prime
Minister (Mr Neville Chamberlain) announced in the House ofCommons that
his Government had entered, without prejudice to the Non-Intervention Pact
(proposed by Britain in August 1936), into negotiations with the Spanish
Nationalist authorities for an exchange of agents to discuss matters affecting
British nationals and commerce in Spain. The agents would not be given
diplomatic status. Occasional visits by the Commercial Secretary ofthe British
Embassy in Hendaye (where it was temporarily located) afforded inadequate
contact with the authorities at Burgos and Salamanca, while the appointment
of new consuls at these cities would imply a measure of recognition which was
not intended. On 27 February 1939, however, British recognition of General
Franco's Government as the legal Government of Spain was announced. On 4
March 1939 Sir Maurice Peterson was appointed Ambassador at Burgos.
9.26.
9.27.
9.28.
74
Right of legation
depend on the normal criteria: full control of its territory by the new
Government; the support of the majority ofthe population; and clear signs that
the newly set up State had reasonable prospects of permanence. Sheikh
Mujibur Rahman arrived in Dacca on 10 January and announced in the
Provisional Constitution Order on I I January that the country was a
parliamentary democracy and that a Constituent Assembly would be called.
Meanwhile the new state had been recognised by India and Bhutan on 6
December 1971. The USSR recognised it on 24 January 1972; Australia and
New Zealand on 3 I January; the United Kingdom and the German Federal
Republic on 4 February; France on 12 February; and about thirty other
countries before the end of the month. As a protest against the decision by
Commonwealth Governments to recognise Bangladesh, Pakistan withdrew
from the Commonwealth on 30 January 1972.
9.29.
Relations between Pakistan and Bangladesh were severed until 1974, when
President Bhutto, in spite of outstanding subjects of disagreement between the
two Governments, decided on the eve of the Islamic Conference at Lahore to
accord recognition to Bangladesh in the interests of Islamic harmony.
9.30.
Multiple accreditation
9.3 I.
A head of mission may be accredited to more than one state, so long as the
receiving states concerned have been duly notified and have raised no
objection. 9 Such multiple accreditation has often been found convenient for
geographical reasons, or because it has been desired to limit expenditure on
diplomatic missions. Subject to the same proviso, a member of the diplomatic
staff of a mission may be similarly assigned to more than one state.
9.32.
Multiple accreditation
75
9.33.
9.34.
CHAPTER
10
Most modern states entrust the conduct of their diplomatic business, at least
below the rank ofambassador, to a professional diplomatic service. This service
consists of men and, increasingly, women who have begun their careers at
junior level and risen gradually but regularly to higher rank. In the nineteenth
century and into the twentieth, the United Kingdom maintained special
regional services such as the China Consular Service and the Levant Service,
covering the Middle East. However, the modern tendency in all countries has
been to maintain a unified diplomatic and consular service with, at least in
theory, complete interchangeability both of diplomatic function and geographical area of work.
Heads of lDission
10.2.
10.3.
In the United States, Article 11, Section 2,2 of the Constitution declares that
'the President shall nominate and, by and with the advice and consent of the
Senate, shall appoint ambassadors, other public ministers and consuls.'
Diplomatic appointments to missions of all classes were formerly conferred
almost without exception on political supporters of the party whose nominee
had been elected President. But by the Rogers Act of 24 May 1924, a career
service was established amalgamating the diplomatic and consular branches
and providing for a uniform system of grading and salaries up to the level of
head of mission. The Foreign Service Act of 1946 codified and superseded all
previous legislation and made it no longer necessary for career officers to
hesitate to accept appointment as head of mission for fear that they would be
Heads of mission
77
10.5.
The regulations of the British service say: 'In regard to all appointments
whatever in the service, the Secretary of State will be free to make any such
selection as, on his own responsibility, he may deem right, without being bound
by claims founded on seniority or on membership of the service.' Literally
understood, this would give the foreign secretary total power over the most
important appointments; in practice, of course, an appointment of the highest
importance would not be made without consultation with the prime minister.
10.6.
10.7
Before 1914, entry into the British Diplomatic Service was by nomination. Sir
David Kelly relates l how, when he left Oxford in 1913, Sir Herbert Warren,
the President of Magdalen College, secured for him 'without any difficulty the
indispensable nomination.' Following the normal practice of that day, Kelly
presented himself in due course before the Foreign Office Selection Board. This
consisted of a panel of senior members of the service whose approach to their
task was strictly non-political. Having been accepted by the Board, Kelly spent
some time at a 'crammer's' (concentrated tuition course) to prepare for an
examination in history and languages. As the best general reading to fit himself
for diplomacy, Sir Herbert Warren had recommended biography, memoirs
and the Latin poet Horace.
10.8.
78
10.9.
In 1943 the Foreign Office and Diplomatic Service, the Consular Service and
the Commercial Diplomatic Service were brought together to form one
amalgamated service. In 1964 a committee under the chairmanship of Lord
Plowden, appointed by the Prime Minister to examine and report on
representational services overseas set out, in a report submitted to Parliament,
the reasons underlying the need to reform the structure and administration of
these services in the light of changing political, social and economic
circumstances. The report contains chapters of permanent value on the
conduct of Commonwealth relations and foreign policy and the working ofthe
British Diplomatic Service, as well as on recruitment and training, to which the
reader interested in these subjects can refer. 2
o.
10. I I.
In considering what sort of person the selectors should look for among younger
candidates for the service it is important to discern not only present attainments
but also future potentiality, a judgement requiring particular insight, and to
distinguish qualities of mind and character from acquired knowledge. A
representative should have a good all-round knowledge of his own country,
rooted in familiarity with its history and culture; and he should have a grasp of
the forces at work in its social, political and economic life. Unless he has this
kind of knowledge, and with it a powerful feeling of attachment (for which
personal ambition and vanity are no substitute), he will be unconvincing as an
interpreter of his country abroad. Moreover ifhe has not learned to understand
his own country to this degree, he will be less likely to develop an instinct for
asking the right questions or a flair for understanding the realities of the
countries in which he may have to work. It is obvious that a very young man or
10. I
Heads of mission
79
woman cannot be expected to have gained expert knowledge of all the various
aspects of national life. But diplomacy does not require polymaths; it is the
aptitude to learn and judge that matters. One of the diplomat's essential
abilities is that of knowing where to find needed information, how to acquire
and interpret it speedily and accurately, and when to make imaginative use of
it.
10.12.
10.13.
An active interest in human beings and sensitivity (which does not mean nafvele)
in converse with them are essentials to successful diplomacy. These qualities
tend to be underrated by outside observers, who may feel not unnaturally that
knowledge of foreign languages should take first place. It is true that for
diplomats whose language is scarcely known outside their own country. a
thorough knowledge of at least one of the internationally used languages
(particularly English or French) is essential. In most countries a diplomat
without special aptitude for languages can acquire by hard work at the outset of
his posting a sufficient practical grasp of the language to carry him through
day-to-day life, if not to do business. Facility acquired in a foreign language is
almost always admired as a capacity, and appreciated as a courtesy; and when
visiting parts of the country away from a cosmopolitan capital it is a most
valuable tool of the trade. For these reasons, both the American and Soviet
Governments have in recent years devoted much effort to producing diplomats
whose knowledge of foreign languages is not just adequate but truly expert.
The British Foreign and Commonwealth Office facilitates the organised study of
languages and has instituted a scale of financial incentives for proficiency.
10.14.
Much has been written about the superlative qualities desirable in diplomacy.
Few persons can embody them all, but the greater part ofa diplomat's armoury
can be developed and improved by sincere application guided by the advice
and example of his seniors. This chapter is concerned primarily with the
foundations on which to build. For these the selectors must be satisfied that
there is a hard core to the applicant's personality. On it will rest the courage,
toughness in confrontation, patience and perseverance without which many
more brilliant gifts can come to grief. Contrary to popular belief, diplomacy is
not a career for the compliant. It often imposes on an officer the duty of
defending the interests of his country in places not of his own choice, where he
must be prepared to withstand the erosion of his health by uncongenial
climates. He must also withstand the moral attrition to which he may be
exposed in the front line of international politics, without flinching from the
Roman precept: aliis licet, tibi non licel.
10.15.
In sum, the acceptable candidate for diplomacy 'should be at the same time a
thinker and a doer, a man of action and a man of learning; a man who is
outgoing, but not insincere, studious and reflective but not withdrawn. He
should not be too pleased with himselfor easily offended; and he should be able
80
6.
A classic illustration offailure in this last and most vital quality was provided by
a distinguished man of letters and lifelong friend of John Donne and Izaak
Walton, Sir Henry Wotton, whose incursions into diplomacy over a number of
years were frustrated by a temperament which led many ofhis contemporaries
to regard him as less than trustworthy. It was an unkind poetic justice perhaps
that caused his ill-managed jest about ambassadors 'lying abroad' for the sake
of their country to recoil on him eight years afterwards, bringing him the
disfavour of his master and a bar to preferment, and leaving to posterity a
byword relished only by the ill disposed. An account ofthe episode by his friend
Izaak Walton s is appended here as a Cautionary Tale.
'At his first going ambassador into Italy, as he passed through Germany, he stayed
some days at Augusta [Augsburg], where having been in his former Travels, well-known
by many of the best note for Learning and Ingeniousness (those that are esteemed the
Vertuosi of that Nation) with whom he passing an Evening in Merriments, was requested
by Christopher Flecamore 6 to write some Sentence in his Albo (a Book ofwhite Paper, which
for that purpose many of the German Gentry usually carry about them) and Sir Henry
Wotton consenting to the motion, took an occasion from some accidental discourse ofthe
present Company, to write a pleasant definition of an Ambassadour, in these very
words:
Legatus est vir bonus peregre missus ad mentiendum Reipublica causa.
'Which Sir Henry Wotton could have been content should have been thus Englished:
An Ambassador is an honest man, sent to lie abroad for the good of his Country.
'But the word for lye (being the hinge upon which the Conceit was to turn) was not so
expressed in Latine, as would admit (in the hands of an Enemy especially) so fair a
construction as Sir Hen~y thought in English. Yet as it was, it slept quietly among other
Sentences in this Albo, almost eight years, till by accident it fell into the hands of Jasper
Scioppius, a Romanist, a man of a restless spirit, and a malicious Pen: who with Books
against King James, Prints this as a Principle of that Religion professed by the King, and
his Ambassadour Sir Henry Wotton then at Venice: and in Venice it was presently written
after in several Glass-windows, and spitefully declared to be Sir Henry Wotton's.
'This coming to the knowledge of King James, he apprehended it to be such an
oversight, such a weakness, or worse in Sir Henry Wotton as caused the King to express
much wrath against him: and this caused Sir Henry Wotton to write two Apologies, one to
Velserus (one of the Chiefs of Augusta) in the universal Language, which he caused to be
Printed, and given, and scattered in the most remarkable places both of Germany and
Italy, as an Antidote against the venemous Books ofScioppius; and another Apology to
King James: which were both so ingenius, so clear, and so choicely Eloquent, that his
Majesty (who was a pure judge of it) could not forbear, at the receit thereof, to declare
publickly, That Sir Henry Wotton had commuted sufficiently for a greater offence.'
Heads of mission
81
'iocosam Legati definitionem, quam iam ante octennium istclc transiens apud amicum
virum Christophorum Fleckamerum forte posueram in Al bo Amicorum more
Teutonico, his ipsis verbis; "Legatus est vir bonus, peregre missus ad mentiendum
reipublica: causa." Definitio adeo fortasse catholica, ut complecti possit etiam Legatos a
latere.'7
10.17.
This sting in the tail was of course a riposte against Scioppius, whose diatribe
(entitled Ecclesiasticus), aimed at King James and his theology, contained the
assertion that he had sent a self-confessed liar abroad as his ambassador. The
fact that a further play is suggested on the term legatus 8 was doubtless calculated
to please the King.
10.18.
Walton, as a loyal friend, puts as good a face on it as he can, but all that could be
said in mitigation of Sir Henry's unwisdom (it was only light-hearted; it had
been an evening of merriments, a private occasion; there had probably been
chaff about the widely accepted 'Machiavellian' notions of diplomacy current
in those days) only serves to point the lesson of what may, when least expected,
overtake the diplomat who gives rein to an incautious display of wit. As the
Arab proverb says, 'The word you have not spoken is your slave; the word you
have spoken is your master.'
10.19.
Evidence that Sir Henry Wotton took his lesson to heart may be found in his
giving to a friend who, 'being designed for the employment of an Ambassador
. . . requested from him some experimental rules for his Prudent and Safe
Carriage in his negotiations ... this Infallible Aphorism, that, to be in safety
himself and serviceable to his country, he should always and upon all occasions,
speak the truth ... "for you shall never be believed; and by this means, your
truth will secure yourself, if you shall ever be called upon to any account; and
twill put your Adversaries (who will still hunt counter) to a loss in all their
disquisitions and undertakings." '9 And in a letter to Milton on 13 April 1638,
giving advice for an intended journey into Italy, he quoted an old Roman
courtier of his acquaintance: 'Signor Arrigo mio, i pensieri stretti, il viso sciolto,
will go safely over the whole world.,lo
CHAPTER
11
Classification of diplomatic
agents
11. I .
11.3.
83
11.4.
11.5.
11.6. In all these cases the change of status took place by mutual consent and the
British diplomatic agent became ambassador. Similar upgrading has taken
place all over the world during the last 100 years in recognition of the growing
importance of the political and commercial relations of an increasing number
of independent states. The Second World War created new situations. In 1942
the United States raised their mission to The Netherlands from legation to
embassy and His Majesty's Government in the United Kingdom promptly
followed suit. The same procedure was shortly after adopted in the case of the
other exiled governmen ts. Since the end of the 1939 war, in accordance with the
principle of equality among nations as embodied in the United Nations
84
Charter, the tendency has become almost universal. Nearly all heads ofBritish
missions now have the title of ambassador extraordinary and plenipotentiary.
The habitual use of these terms is only to be understood by reference to their
historical background.
11.7.
11.8.
II.g.
In the second half of the seventeenth century arose the practice of designating
resident ambassadors as 'extraordinary.' Originally this term had been applied
only to those who were sent on special missions. The disputes about precedence
between ordinary and extraordinary ambassadors furnished the motive to both
monarchs and their agents for this otherwise unreasonable custom. In imitation
of the ambassador extraordinary, the addition was conferred upon envoys, who
thereupon began to claim precedence over residents. Such questions of
precedence were naturally regulated by the etiquette of the court to which the
diplomatic agent happened to be appointed, and in Louis XIV's time the
French Court refused to make any difference. Still the envoys extraordinary
Ambassadors
85
AlIlbassadors
11.10.
11. I I.
Article 2 of the Vienna Reglement says ofambassadors, legates and nuncios, that
they alone have representative character, and by this was meant that agents of
the first class only were considered as representing the person of their sovereign,
though they did not receive all the honours due to the sovereign himself. Their
privileges were originally founded on the supposition that they alone were
competent to carry on negotiations with the sovereign himself. But this has no
real signification in modern times, for they deal as a rule with the minister for
foreign affairs, even in countries which preserve a monarchical form of
government. It is sometimes supposed that an ambassador can demand access
86
to the person of the head of the state at any time, but this is not the case, as the
occasions on which the ambassador can speak with the head of the state are
limited by the etiquette of the court or government to which he is accredited.
The so-called 'representative character' of the ambassador extends no farther,
as Leibnitz says, than 'quantumfert ratio aut consuetudo.' It gives him no right to go
behind the back of the minister for foreign affairs, and negotiate with the
sovereign direct. As Prince Bismarck rightly observed, no envoy or ambassador
has the right of demanding a personal interview with the head ofstate, nor can
the sovereign in any state which possesses a parliamentary constitution
negotiate apart from the advice of his responsible minister. Only in practice,
and especially in the case of absolute rulers, has the easier access to the sovereign
which an ambassador enjoys, any political importance, as was perceived in
1853 in the personal negotiations of Lord Stratford with the Sultan, and of the
Prussian ambassador Graf v. d. Goltz with Napoleon III in 1866. The same
ground is opposed to it from the side of the state to which he is accredited. If a
minister for foreign affairs has to endure that what he has settled with an envoy is
upset by conversations of the latter with the sovereign, no steady ifolgerichtige)
policy is possible. Frederick the Great refused to have any ambassadors,
because they were an inconvenience. 14
Canon law distinguished three kinds oflegates: the legatus missus (or apostolic
nuncio); the legatus a lalere (literally 'from the Pope's side'), who might be
ordinarius, that is responsible for a legation in one of the former Papal States, or
extraordinarius, that is a plenipotentiary envoy of the Pope, charged with a
special mission; and the legatus natus, a title often associated with a particular see
where the legate might hold an archbishopric, as formerly at Canterbury and
York, and still at Seville, Rheims and Cologne. 15
11.13
A nuncio is thus a legatus missus, but is distinguished from a legatus a latere, who
nowadays is always a cardinal, and of course from a legatus natus, who is not a
diplomatic agent at all. An apostolic delegate is a papal official responsible to
the Holy See for the supervision of ecclesiastical matters and has no diplomatic
status. 16
11.14.
In Roman Catholic countries, and in some others, the nuncio has traditionally
been regarded as the doyen of the resident diplomatic body. In 1856 the British
official interpretation of Article 4 of the Vienna Reglement was that 'if by the
invariable custom of any court the representative ofthe Pope had at the time of
the Congress been allowed to take precedence of all other diplomatic agents of
the same class, without reference to the date of his arrival, that custom should
not be affected by the new regulation.' This view has since been maintained.
Moreover, in other countries to which a nuncio has, since the time of the
Congress of Vienna, been accredited, the practice of conceding precedence to
him has, according to local circumstances and as an act of courtesy, been
accepted. Article 16 of the Vienna Convention on Diplomatic Relations of
Charges d'affaires
87
Envoys
11. I
5.
The ordinary custom is to give to an agent of the second class the double title of
envoy extraordinary and minister plenipotentiary. These constitute, as has
been already remarked elsewhere, a rapidly dwindling class of diplomatic
agents.
Internuncios
11. I 6.
The Holy See employs for its ministers of the second class the title of internonce
apostolique. From the Middle Ages onwards internuntius was in use to denote the
diplomatic agent of a lay sovereign, but was not so common as ambasciator and
orator. It first occurs in the literature of the subject in 1595. Its signification was
gradually restricted until from the seventeenth century onwards it became the
technical term for the Austrian agent at Constantinople from 1678 to 1856.18 Its
use by Austria is thought to have been adopted in order to avoid conflicts of
precedence with the French ambassador, to whom Soliman the Magnificent
(1520-66) had undertaken by treaty to accord precedence over the
representatives of all other potentates, and it was continued down to the time of
the Crimean War.
Charges d'affaires
7.
These are accredited to the minister for foreign affairs, in accordance with
Article I of the Vienna Reglement and not to the head of the state (though
instances have occurred in which their credentials have been addressed to the
latter).
11.18.
11. I
88
CHAPTER
12
Persona grata
12. I.
Every state has the right of refusing to accept a particular diplomatic agent,
whether on the ground ofhis personal character or ofhis previous record, as, for
instance, if he is known to have entertained sentiments of enmity toward the
state to which it is proposed to accredit him. A diplomatic agent may also be
declined because of the character with which it is proposed to invest him, 1 or, as
it is tersely expressed in Latin, ex eo ob quod mittitur. The Ottoman Porte for a
long time declined to exchange ambassadors with the United States, until the
latter finally despatched a squadron of ships of war to Constantinople, and at
the cannon's mouth, as it were, extracted a promise to fall in with the proposed
arrangement. 2
Agreation
12.2.
12.3.
When the Pope was about to appoint a nuncio or legate to Spain (formerly also
to the courts of Austria-Hungary, France and Portugal) he submitted a list of
three names, called a tema, to the sovereign, who then was at liberty to make his
choice. If there existed no special reasons for exercising the power ofchoosing, it
was usual to take the name that stood first. In 18 I 9, Dessolles, the French
Minister for Foreign Affairs, wrote to Nesselrode giving a list of four men, any
one of whom the King would be willing to appoint ambassador at St
Petersburg, recommending particularly the first on the list. Alexander I
however, chose La Ferronays, who was the second. By way ofexception, it has
even happened in recent years that an African head of state, visiting a country
with which diplomatic relations were envisaged, offered its ruler the names of
j
go
Persona grata
12.5.
One of the best known instances of refusal was that ofthe Emperor Nicholas I of
Russia to receive Sir Stratford Canning in 1832, on the ostensible ground that
the appointment was made without previous notice having been given, since it
was only ten days after it had been officially gazetted that Palmerston
mentioned it to the Russian Ambassador in London. It has been suggested that
the Emperor's objection to Sir Stratford Canning was on personal grounds, and
though the British Government maintained that a government was perfectly
free in the choice of its representatives at foreign courts, the Emperor refused to
receive him, and the ordinary relations between the two courts were only
resumed in 1835, when Lord Durham was appointed ambassador.
12.6.
In the past, refusal to receive an envoy might occur on such grounds as the
following: Sweden, in 1757, refused to accept the British envoy, Goodrich,
because after his appointment he had visited a prince with whom Sweden was
at war; Great Britain consequently broke off diplomatic relations with
Sweden. 4 In 1820, the King of Sardinia refused to receive the Prussian envoy,
Baron von Martens, because he had married the daughter ofa regicide. In 1847
the King of Hanover refused to accept Grafvon Westphalen because he was a
Roman Catholic.
12.7.
12.8.
In 1885 Mr Keiley was appointed United States minister at Rome. The Italian
Government asked that another choice might be made, without, however, assigning any
. reason. But it was evident that the ground of the refusal to receive him was a speech
made by Mr Keiley at a public meeting of Roman Catholics, at which a protest was
Agreation
91
made against the annexation of the Papal States to the Kingdom ofItaly. Mr Bayard,
the United States Secretary of State, recognised 'the full and independent right' of the
King of Italy 'to decide the question of personal acceptability to him ofan envoy,' and Mr
Keiley, on being made acquainted with the refusal of the Italian Government, resigned
his commission.
12.9.
12. I O.
Later, he discussed the question whether it was necessary previously to ask for the
consent of the government to whom the minister was to be accredited; there was no
instance of this having been done by the United States, and the reason was that frequent
elections at regular intervals might render it difficult to procure the consent ofa foreign
government to the appointment of agents whose views were in harmony with the latest
expression of public opinion, if the new government should happen to have superseded
one whose policy was more in accord with that of the foreign government concerned.
Subsequently the Austro-Hungarian Government based their refusal on the ground
that the Italian Government had objected to Mr Keiley, and that its views had found
earnest expression at Vienna since the President had nominated him to AustriaHungary; the fact that his wife was a Jewess did not influence the judgement of the
government, but the latter could not prescribe social usage, which might be unpleasant
in that regard. The main reason for objection was not the action ofItaly, but the public
utterances of Mr Keiley, which were of a character not agreeable to the AustroHungarian Government. Finally the latter definitely refused to receive Mr Keiley, who
thereupon sent in his resignation. The President declined to make a fresh nomination
and the legation was left in the hands of a secretary as charge d'affaires. 6
12. I I.
In 189 I the United States appointed Mr H. W. Blair minister to China. When he was on
his way thither, the Chinese Foreign Office telegraphed their objection to the
appointment on the ground that in 1882 and 1888 he had 'bitterly abused China in the
Senate' and 'was conspicuous in helping to pass the oppressive Exclusion Act.' In
response to a request that they would consent to reopen the case the Chinese Foreign
Office said 'Mr Blair is not popularly regarded in China,' but that if the President could
do anything to repeal the Exclusion Law of 1888 'the situation in China would be much
changed, and then it would not make much difference what Mr Blair has said, and he
would be well received if the President asked for it.' After the lapse of nearly three
months, the President wrote to Mr Blair accepting his resignation. At the same time, the
minister then in China was instructed to deny the sufficiency of the allegations made in
respect of the views concerning the Chinese people which were stated to have been
entertained and uttered in legislative debate by Mr Blair:
'If Mr Blair may not be received as minister while that law [of 1888] remains
unrepealed, and because of its existence as a law, it is not easy to reconcile that position
92
Persona grata
with the continued friendly reception of the present minister of the United States at
Peking. In this aspect, as in every other aspect, the position assumed by China is
incongruous and inadmissible.'
There was no interruption of the diplomatic representation at Peking. 7
Although exceptions have occurred in the past, it is nowadays taken for granted
that no national of a state will be employed as the envoy ofa foreign state in his
own country. Before he could appear in that capacity he would have to apply
for the approval of his own sovereign or government. In France it is a
constitutional maxim that French citizens are not admissible as foreign
ambassadors or ministers at Paris. And for more than a century past the British
Government has refused to receive British subjects as heads offoreign missions.
In the eighteenth century it was already beginning to be regarded as
unacceptable that any British national should enjoy privilege or protection in
his own country by reason of diplomatic employment in the service ofa foreign
power.
12.13.
12.14.
On 8 July 1786, the following notice was published in the London Gazette:
'Whereas divers applications have of late been made by people of different
descriptions to the foreign ministers resident in England to be appointed secretaries to
some or other of the said foreign ministers in order to avail themselves of the protection
due to persons in that situation against the ordinary course of legal proceedings in
various cases. And whereas such indulgence is liable to many abuses, it is His Majesty's
pleasure that henceforth no subject of His Majesty shall be permitted by the Secretary of
State to have his name inserted at the Sheriffs office in the list of those who are to be
deemed under the protection of any foreign minister, excepting only such persons as
may be employed by the said foreign minister in the capacity of menial servants.
G\RMARTHEN. '
12.15.
93
12.16.
Among other exceptional appointments on record from past ages the following
may be mentioned here.
12.17.
In 1714 Sir Patrick Lawless was Spanish envoy in London, and General
Wall from 1748 to 1762; both were Irishmen by birth. There is also the
case ofBenjamin Thompson, born in the United States, who entered the service
of the Elector of Bavaria, by whom he was appointed as minister to Great
Britain in 1798. He was refused by the British Government on the ground of his
being a British subject, aggravated by the circumstance of his having formerly
occupied the post of Under-Secretary of State in the American or Colonial
Department in 1780. Several of the smaller German states were represented at
Vienna by Austrians, and up to 1855 the charge d' afTaires of the Hanse Towns
in London was a British subject. Wicquefort had been resident of the Duke of
Luneburg at The Hague, though he was a Dutch subject born at Amsterdam.
(See also 17.13.)
'The laws of the United States forbid the employment of any other than a citizen of
the United States in its diplomatic service. It is also a rule of the Department of State
that no citizen of the United States shall be received by it as the diplomatic
representative of a foreign government, but this rule is of a flexible character in its
application. Anson Burlingame, who for some years had acted as the American minister
in China, resigned to accept from the Chinese Government the post of special
ambassador to the United States and certain European governments. He was received
as such in Washington, and Secretary Fish negotiated with him and his colleagues an
important treaty. '9
'Mr Camacho, a native of Venezuela but a naturalised citizen of the United States,
was accepted as minister from Venezuela in 1880, on renewal of relations with that
country which had been for some time suspended. On the other hand, General
0' Beirne, a prominent citizen ofNew York, was accredited as diplomatic representative
of the Transvaal Republic to the United States at the outbreak of hostilities with Great
Britain; and the Secretary of State, applying the rule, declined to receive him on the
ground of his American citizenship, thus avoiding the question of the reception of a
representative of a country which the British Government claimed was a state under
suzerainty.
'In late years a practice grew up of securing the insertion in the Diplomatic List,
published monthly by the State Department, of the names of resident attorneys of
Washington as counsellors of certain legations of the less important countries. The main
object ofsuch insertion was to secure thereby invitations for the persons named and their
wives to the receptions and teas at the White House. When the attention of Secretary
Root was called to the practice he directed it to be discontinued, basing his action on the
rule above cited, that an American citizen could not be clothed with a diplomatic
character in a foreign legation in Washington.'lo
CHAPTER 13
Diplomatic agent
proceeding to his post
13. I.
13.2.
(Seal)
(Signed)
R.
Elizabeth the Second, by the Grace of God of the United Kingdom of Great Britain
and Northern Ireland and of Her other Realms and Territories Queen, Head of the
Commonwealth, Defender of the Faith, etc., etc., etc.
To all and singular to whom these Presents shall come, Greeting!
Whereas it appears to Us expedient to nominate some person of approved Wisdom,
Loyalty, Diligence and Circumspection to represent Us in the Character of Our
Ambassador Extraordinary and Plenipotentiary
Envoy Extraordinary and Minister Plenipotentiary
Now Know Ye that We, reposing especial trust and confidence in the discretion and
faithfulness of Our Trusty and Well-beloved
have
nominated, constituted and appointed, as We do by these Presents nominate, constitute
and appoint him, the said
to be Our
ELIZABETH
95
to
aforesaid. Giving and granting to him in that character all power
and authority to do and perform all proper acts, matters and things which may be
desirable or necessary for the promotion of relations offriendship, good understanding
and harmonious intercourse between Our Said Realm and
.
and for the protection and furtherance of the interests confided to his care; by the
diligent and discreet accomplishment of which acts, matters and things aforementioned he shall gain Our approval and show himselfworthy ofOur high confidence.
And We therefore request all those whom it may concern to receive and acknowledge
Our said
as such
Ambassador Extraordinary and Plenipotentiary
Envoy Extraordinary and Minister Plenipotentiary
as aforesaid, and freely to communicate with him upon all matters which may appertain
to the objects of the high mission whereto he is hereby appointed.
Given at Our Court ofStJames's, the
day of.
, and in the
.
year of Our Reign.
By Her Majesty's Command,
(Countersigned)
13.3.
The Byzantine Emperors, and the Venetians after them, used to furnish their
ambassadors with detailed instructions regarding their behaviour and conduct
of business while abroad; and the Italians in the sixteenth century gave their
ambassadors two sets of instructions, one open and the other secret. The
instructions of the French ambassadors in the eighteenth century contained full
accounts of the political conditions which they would find and of the policies to
be pursued, and were sometimes developed into volumes of considerable
length. Formerly printed instructions for the guidance of their conduct were
furnished to British ambassadors and ministers on taking up their appointments, but these were mainly ofa formal nature, relating to matters which have
become stereotyped by usage, and the custom no longer exists.
13.4.
13.5.
Before starting for his post the agent should take care to let the probable date of
his intended arrival be known, in order that when he reaches the frontier he
may at once enter on the enjoyment of all the privileges and immunities
attaching to his position, especially with regard to the passage of his personal
effects through the Customs.
13.6.
A passport, 2 in which his official status is fully detailed, should be taken, duly
vise where necessary by the representative of the foreign state concerned, who
may also be asked for the favour of a laisser-passer, if exceptional circumstances
appear to render this desirable, in order to expedite the entry of the agent's
baggage and effects. If he has to pass through a third country before arriving at
his destination, similar steps may be advisable. 3
96
13.7.
Before proceeding to his post, Callieres recommends the agent to read the
despatches exchanged between his predecessor and the Foreign Office, and
after having perused them with care and reflection, to discuss pending
questions with the head of the office. He should gain as much information as
possible from those who have preceded him at the post to which he has been
appointed, and also make friends with the diplomatic representative of that
state, who will be able to write home a favourable account of his character and
disposition. This applies equally to all members of the Foreign Service
appointed to posts abroad: whether Ambassador or Third Secretary, and
whether appointed from the Foreign Office or from another post abroad, the
officer, as soon as his transfer ceases to be confidential, should lose no time in
calling on his equivalent in rank at the Mission of the country in which his new
post is situated.
13.8.
In the past it was the custom for an ambassador to make a formal state entry
into the capital of the sovereign to whom he was accredited, but this practice is
no longer observed. A special ambassador may sometimes be welcomed at the
railway station, or the airport, by the minister for foreign affairs, but the
pressure of a minister's work nowadays makes this very unusual. In the United
Kingdom it is normal for an Ambassador or High Commissioner on his arrival
at the capital to be greeted by the Assistant Marshal ofthe Diplomatic Corps on
behalf of the Secretary of State for Foreign and Commonwealth Affairs. But,
generally speaking, diplomatic agents travel to their posts with as little outward
show as private persons, though on long flights they may be met at transit stops
by colleagues from their own countries.
13.9.
On reaching the capital the new head of mission should at once formally notify
his arrival to the Minister for Foreign Affairs, and ask when it will be
convenient to the latter to receive him. At some capitals he may also be
expected to notify the Master of the Ceremonies or the Introducer of
Ambassadors. This may be done by letter. He also requests the Minister for
Foreign Affairs to take the orders ofthe head ofthe state respecting an audience
for the purpose of presenting his credentials, of which he must furnish a copy
beforehand. This copy is known in London as the Working Copy. In French it
is called copie figuree. (The older term copie d'usage was used in London until
recently.) This document need not be signed, but should be in the same
language and wording as the original. It may be typed, photocopied, printed or
handwritten, as convenient. A translation is of course useful, especially where
the original is in a language not familiar in the receiving country, but it is not a
substitute for the Working Copy.
Presentation of credentials
13. I o.
Presentation of credentials
97
On being informed by the minister for foreign affairs of the day and hour at
which his audience is to take place, if (which is not always the case) it is the
customary local usage for the agent to address a formal speech to the sovereign
or president, he sends to the minister for foreign affairs a copy of what he
proposes to say; but he has no right to expect a copy of the reply which will be
made to him. Such a speech should be of a general character. It might, for
instance, begin by expressing the agent's satisfaction at having been appointed
to represent his country; convey assurances of friendship on the part ofhis own
sovereign or president, and his own wishes for the prosperity and welfare of the
sovereign or president he is addressing; state that he will do all in his power to
strengthen the friendly relations existing between the two countries; and
bespeak the friendly cooperation of the sovereign's or president's ministers in
his endeavour to fulfil the purpose of his mission. He will mention also his
credentials, presenting them to the sovereign or president, who hands them
usually unread, to the minister for foreign affairs. If the agent has formerly had
diplomatic service in the country, e.g. as secretary, a graceful allusion to an
agreeable sojourn will be in place.
98
13. I 2.
13. I 3.
In his reply the head ofstate will ofcourse normally observe the same discretion
and restraint. He is in the position of advantage, since his text is not
communicated to his guest in advance. If, as may occur very rarely, he surprises
the ambassador by including remarks critical of, or politically disobliging to
the sending government, this will almost certainly be done with a view to
publicity, in violation of the fundamental laws of good diplomacy. Such
unpleasantness will be remembered, all the more keenly for having been
deliberate, throughout the ambassador's term of appointment and is likely to
colour the relations which develop between the two countries.
13.14.
Besides committing his speech to memory as far as he is able, the agent would
do well to have a copy in his pocket.
The Comte de Segur, in 1785, on proceeding to the Palace for his audience of
Catherine the Great, and while waiting in the anteroom, engaged in a conversation with
his Austrian colleague, which proved of such an absorbing character that the speech
which he had prepared faded from his memory. When he entered the presence of the
Empress, he found that he could not recollect a single word of it, but, with great presence
of mind, he improvised an entirely new speech, to her great surprise, as she had received
a copy of the original discourse, and had framed a corresponding answer.
Subsequently when he came to be on intimate terms with the Empress, she asked him
one day why he had suddenly taken it into his head to change his speech at his first
audience. He replied that he had lost his nerve in the presence of so much glory and
majesty, and so expressed the sentiments of his sovereign in the first phrases that
suggested themselves. The Empress answered that he h~d done right. Everyone had his
failings, and one of hers was easily to conceive prejudices. 'I remember that one of your
predecessors was so perturbed on the occasion of his presentation to me that he could
only say, "Le Roi mon maitre, Le Roi mon maitre." The third time he repeated these
words 1 interrupted him by saying that 1 had long been aware of his master's friendship
for me. Every body assured me that he was an intelligent man, but his bashfulness always
made me prejudiced against him, for which 1 reproach myself, but, as you see, somewhat
late in the day.'s
13.15.
It is not usual for the diplomatic agent to speak again in reply to the answer
made to him by the sovereign or president.
The language of the speech may be that of his own nationality, or French. In
Oriental countries the former is most usual, the speech being translated into the
language of the country by an official interpreter; the head of the state replies in
his own tongue, and the reply is, if necessary, then translated.
13.16.
99
J'ai l'honneur de presenter cl Votre Majeste les lettres qui m'accreditent aupres de
son auguste personne en qualite de ...
Permettez-moi, Sire, d'etre en meme temps aupres de Votre Majeste l'interprete des
sentiments d'estime et de sympathie que mon souverain professe a un si haut degre pour
la person ne de Votre Majeste, et les vreux qu'il fait pour la felicite de votre famille et
pour la prosperite de vos peuples.
A l'expression de ces sentiments, daignez, Sire, me permettre d'ajouter l'hommage
de mon profond respect. Pendant le cours de la mission que je vais commencer, je ferai
tout ce qui dependra de moi pour meriter la confiance de Votre Majeste;je me trouverai
heureaux si j'y reussis et si mes constants efforts contribuent a resserrer encore les liens
d'amitie et d'interet qui unissent deja si etroitement les deux peuples. 6
13.17.
J'ai l'honneur de remettre a Votre Excellence les lettres par lesquelles S. M. le roi
Don ... m'accredite en qualite d' Ambassadeur Extraordinaire et Plenipotentiaire
aupres du President de la Republique Franc;aise.
C'est avec empressement que je saisis cette occasion solennelle pour exprimer, au
nom de mon auguste Souverain, les vreux tres sinceres qu'il forme pour la prosperite de
la France et pour le bonheur de l'homme d'Etat eleve par ses concitoyens a la premiere
magistrature du pays.
Quant cl moi, porte vers la France par toutes mes sympathies, j'accepte avec joie
l'honorable mission de maintenir, de developper et de rendre encore plus intimes les
bons rapports deja existants entre deux nations sreurs par la race et l'origine, par le
voisinage et la communaute des interets.
J'apporterai tout mon zeIe dans l'accomplissement d'un devoir si conforme a mes
sentiments, et j'espere pouvoir compter, pour y reussir, sur la haute bienveillance de M.
le President de la Republique comme sur le puissant et amical concours de son
gouvernement.
13.18.
MONSIEUR
100
In the past it was customary for a distinction to be made between the reception
of ambassadors, on the one hand, and of envoys extraordinary and ministers
plenipotentiary and diplomatic agents of lesser rank on the other. But since
nowadays almost every accredited head ofmission, however small his staff, is an
ambassador, the reduced ceremonial at one time prescribed for representatives
of lesser rank has become all but obsolete. The custom used to be that an envoy
extraordinary and minister plenipotentiary, or a minister resident, went to his
audience without the members of his legation and in his own carriage, and
made no set speech when delivering his credentials. At some capitals, however,
he took his personnel with him, and presented them at the end of his audience.
Altogether it was a much simpler affair than the audience accorded to an
ambassador.
13.2 I.
13.22.
13. 2 3.
Washington
In Washington both ambassadors and ministers are received by the President
in the same manner. Shortly after the arrival of the envoy at Washington an
appointment is made for him to see the Secretary ofState. For this appointment
he goes to the Department of State in his own car, usually accompanied by the
charge d' affaires ad interim, where he is met by the ChiefofProtocol, who escorts
him to the office ofthe Secretary. The envoy is presented to the Secretary by the
Chief of Protocol, who is the only officer of the Department present for this
meeting. The envoy presents to the Secretary copies of his Letter ofCredence, the
Letter of Recall of his predecessor, and his speech, and requests an audience with
the President. The meeting is brief and no matters of substance are discussed.
Within about ten days of the envoy's call on the Secretary a date is set for his
audience with the President. For this audience, he is escorted from his residence
in a White House automobile, by the Chiefof Protocol, to the executive office of
the President. The envoy is not accompanied by any members of his staff Upon
101
arrival at the office of the President the envoy is presented to the President by
the ChiefofProtocol. No one else is present at the meeting. The envoy hands his
Letter ofCredence, the Letter of Recall of his predecessor, and his speech to the
President. The speech is not read, and the President hands the envoy his reply
to the speech. After a brief informal conversation the audience ends. The Chief
of Protocol then escorts the envoy in the White House car back to his residence.
Ceremonial of the Court of St James's
13.24.
On the morning of the Audience, the Marshal of the Diplomatic Corps calls at
the Embassy in a State Carriage, to take the Ambassador (or High
Commissioner, as the case may be) to Buckingham Palace. Similar carriag-es
follow for senior members of the Ambassador's staff, of whom up to eight may
attend, travelling four to a carriage. The carriage attendants are in royal
scarlet, and two footmen stand on the footboard at the back of each carriage.
13.25.
13.26.
13.27.
The Ambassador's spouse, on arrival, is conducted to the Bow Room, and waits
there with a Lady-in-Waiting, or other appropriate official, until fetched by
the Marshal.
13.28.
The Permanent Under-Secretary enters the Presence first in order to take the
Sovereign's pleasure, and, having done so, remains throughout the ceremony.
When the doors have been opened by the pages, the Ambassador,
accompanied by the Marshal and the Comptroller, takes one step forward with
the left foot and bows. After a second step and bow, the Marshal announces the
Ambassador as follows: 'The Ambassador of..
, Your Majesty.' The
Marshal and the Comptroller then withdraw.
13.29.
The Ambassador now goes forward to the Sovereign and states (usually in
English, but occasionally in French): 'Your Majesty, I have the honour to
present my Letters of Credence and the Letters of Recall of my predecessor.'
The doors are by then shut, and the Sovereign converses informally with the
Ambassador. No formal speeches are made at this ceremony.
13.30.
The Ambassador is then invited to present the members of his (or her) staff,
each of whom is presented individually. When these presentations have been
completed, and the members of the staff have withdrawn, the Ambassador's
spouse enters and is presented by the Ambassador. After a few minutes' further
102
conversation, Ambassador and spouse withdraw, and all return to the Embassy
Residence, or Chancery, or to the hotel, in the vehicles in which they arrived.
13.3 I.
The Ambassador and those members of the Embassy staff who are to be
presented to the Sovereign wear Uniform, National Dress, or European full
evening dress, with decorations. The Ambassador's spouse wears National
Dress, or European day dress (ladies' day dress with hat and gloves, or, for a
husband, morning coat), but without decorations.
Commonwealth High Commissioners
13.32.
13.33
13.34.
Vin d'honneur
It is becoming increasingly common for new Ambassadors to offer a small vin
d'honneur at their Residence, Chancery, or hotel immediately on their return,
with the Marshal of the Diplomatic Corps, from their Credentials Audience.
Union of Soviet Socialist Republics
13.35.
13.36.
13.37.
13.38.
On the appointed day the Head of the Protocol Department arrives at the
Embassy or the official Residence of the Ambassador in a special car provided
by the Chairman of the Praesidium. In this car he accompanies the
Ambassador to the Kremlin for the ceremony. The diplomatic staff of the
Embassy follow to the Kremlin in their own cars.
13
13.39.
13.40.
13.41.
The Ambassador, together with the diplomatic personnel from the Embassy
and the Soviet officials, enters the hall: the Head of the appropriate
geographical Department of the Ministry of Foreign Affairs stands on the right
of the Ambassador, on the left is the Head of Protocol Department.
Simultaneously, the Chairman of the Praesidium of the Supreme Soviet enters
through the opposite door in the hall: on his right is the Secretary of the
Praesidium, on his left the Deputy Minister of Foreign Affairs. The
Ambassador stops one or two paces short of the Centre of the hall, opposite the
Chairman of the Praesidium, and greets him with a slight bow. The Head of
Protocol Department presents the Ambassador to the Chairman of the
Praesidium.
13.42.
13.43.
After the translation of the speech into Russian, the Ambassador hands his
Letters of Credence to the Chairman of the Praesidium, together with his
predecessor's Letters of Recall, and returns to his place.
13.44.
13.45.
At the end of the speeches and translations, the Chairman of the Praesidium
and the Ambassador approach one another and shake hands. The Chairman of
the Praesidium introduces the Secretary of the Praesidium and the Deputy
Minister of Foreign Affairs to the Ambassador. In his turn the Ambassador
introduces the members of the Embassy diplomatic personnel accompanying
him.
13.46.
13.47.
After the audience the Chairman of the Praesidium invites the Ambassador
and the Head of Protocol Department and all those present at the ceremony to
be photographed in the main hall. After the photograph the Ambassador bids
goodbye to the Chairman of the Praesidium and with the other officials and the
Head of Protocol Department departs for the Embassy or his Residence in the
order of arrival.
104
13.48.
13.49.
13.50.
Buenos Aires
The maintenance of traditional forms of pageantry and ceremonial to dignify
the introduction of foreign ambassadors is by no means confined to European
countries. In Buenos Aires, for example, it has been the custom for the new
Ambassador to be fetched from his residence by the Assistant Director ofState
Ceremonial and to be escorted by a squadron of the Mounted Grenadiers, with
the senior members of his staff, including Service Attaches, following in motor
cars.
The Ambassador is met at the entrance of the Casa Rosada by the Director of
State Ceremonial. National Anthems are played by a regimental band, and the
Ambassador is conducted to the Salon Blanco, where he is greeted by the
Minister for Foreign Affairs and certain of the President's personal staff. From
there he enters the Presidential office and, having been duly presented, hands
his Letters of Credence to the President. After a short formal exchange of
courtesies and a few minutes' conversation, the Ambassador takes his leave of
the President, and is usually given the opportunity of speaking briefly to the
representatives of the national press before being escorted to his carriage. The
cavalcade then accompanies him to the Embassy, where it is customary for the
Ambassador to invite the Director of Ceremonial, along with the Commander
and the Second-in-Command of the escort, into the house to take a glass of
champagne.
Variations in procedure
In the few examples given, many divergences of practice are visible. For
instance, in the United States no arrangements are made for other than United
States officials to be present at any stage, and no official arrangements are made
for the spouse of the Ambassador to be received. If only for reasons of time, it is
bound to be difficult to arrange for any but the briefest ceremony when the
Head of State and the Head of Government are combined in the same person.
The opposite extreme is presented in India, where the two offices are separated;
all Embassy or High Commission staff are invited to participate and be
presented, while spouses watch the ceremony. This is a pleasant practice
although it provides a severe test of memory for the new Head of Mission, who
may only have known his staff for a few days.
13.5 I.
In Japan, the wife of the Ambassador is not at present introduced at the time of
the presentation of credentials to the Emperor. It is, however, understood that,
within a few weeks, the Ambassador and his wife will be invited to tea with the
Emperor and Empress.
13.52.
13.53.
105
CHAPTER 14
The more fundamental rules of diplomatic law - that the person of the
ambassador is inviolable and that a special protection must be given to the
messages which he sends and receives from his sovereign - have existed from
time immemorial among civilised states. During the sixteenth and seventeenth
centuries, when the exchange of permanent ambassadors between the states of
Europe gradually became general, it came to be accepted in state practice and
by the writers on international law that even where there was evidence that an
ambassador had engaged in conspiracy or treason against the receiving
sovereign, he was immune from the criminal jurisdiction of the receiving state.
He could be expelled, but he could not be detained or tried. Immunity of the
ambassador from the civil jurisdiction of the receiving state was established
during the seventeenth century. Then, as much as now, it was thought
necessary for an ambassador to uphold the prestige of his sovereign by
magnificent display. But the sending state did not ordinarily provide
allowances for this, and so the ambassador who lacked great private means
would often find himself obliged either to go into business or to fall into debt.
Several governments found that embarrassing incidents, and the growing
independence of the courts, made it necessary to enact laws expressly providing
for diplomats to enjoy immunity from civil suits and from execution against
their property.
14.2.
The broad outlines ofcustomary international law regarding the privileges and
immunities of diplomats, their property, premises and communications were
established by the middle of the eighteenth century, and were excellently
described by Vattel in Le Droit des Gens. Vattel clearly explains why the nature
of the ambassador's function makes these immunities necessary.
'Le meme droit des gens qui oblige les nations a admettre les ministres etrangers les
oblige donc aussi manifestement arecevoir ces ministres avec tous les droits qui leur sont
necessaires, tous les privileges qui assurent I'exercise de leurs fonctions. 11 est aise de
comprendre que I'independance doit etre I'un de ces privileges ... 11 importe qu' il n' ait
point de pieges a redouter, qu'il ne puisse etre distrait de ses fonctions par aucune
chicane.')
107
du souverain chez qui ils sont envoyes, ni de ses tribunaux. Ils sont la parole du prince
qui les envoie, et cette parole doit etre libre. '2
14.3.
Modern practice and theory have adopted this explanation of'functional need'
as the correct explanation of and justification for diplomatic privileges and
immunities. The ambassador's status is thus distinct from that of the ordinary
alien who enjoys no immunity from jurisdiction because he does not represent
his state. Grotius remarked that ambassadors were, by legal fiction, deemed to
be outside the territory of the state where they were residing;3 but when this
fiction came to assume the character of a rule, it was seen to be misleading and
dangerous. The term 'exterritoriality,' or 'extraterritoriality,' is sometimes
used to denote the totality of privileges and immunities accorded to diplomatic
agents, their families and subordinate staff, or to describe the status ofembassy
premises. But it is now everywhere accepted that it does not mean that the
diplomat is not legally present in the receiving state or that the embassy is
deemed to be foreign territory. Marriages, or crimes, occurring on diplomatic
mission premises, are regarded in law as taking place in the territory of the
receiving state.
14.4.
14.5. Although the broad rules regarding the privileges and immunities of
ambassadors and their staffs continued unchanged from the eighteenth
century, there grew up on matters of detail considerable variation in the
practice of individual states. Some states admitted exceptions to the rule of
immunity from civil jurisdiction in regard, for instance, to real property, or
where the action related to the diplomat's commercial activities, while others,
in particular the United Kingdom and the United States, admitted no
exceptions. Some states refused to accept their own nationals as diplomatic
representatives of another state, others accepted them provided that they
enjoyed no privileges or immunities, others again allowed them privileges and
immunities. Some states gave full privileges and immunities to all members of
the ambassador's suite, from counsellors and first secretaries to chauffeurs and
cleaners, while others accorded immunity to clerks and typists in regard to
oflicial acts only and nothing to domestic servants; and most drew the line at
intermediate points. The twentieth century led to new forms of diplomatic
communication, such as wireless transmitters in missions and carriage of
diplomatic bags by ad hoc couriers, or by hand of the pilot ofan aircraft, and no
clear agreement emerged as to whether these new methods were permissible or
entitled to equal protection with the traditional diplomatic bag. There was a
108
series of codifications of the rules of diplomatic law, of which the two most
important were the Havana Convention on Diplomatic Officers, signed in
1928,5 and the Harvard Research Draft Convention on Diplomatic Privileges
and Immunities, published in 1932.6 But only fourteen Latin American States
became parties to the Havana Convention, and the Convention described itself
as an interim instrument 'until a more complete regulation of the rights and
duties of diplomatic officers can be formulated.... The Harvard document
had great persuasive authority, but it did not lead states to modify the
provisions of their domestic law where these diverged.
14.6.
14.7.
109
14.8.
Following the arrangement of the text of the Vienna Convention, the subject of
diplomatic privileges and immunities will be examined under the following
headings: the status of the mission itself as regards its premises, archives and
communications, the immunities of diplomatic agents, the privileges of
diplomatic agents, the position of families and subordinate staff and of
nationals and permanent residents of the receiving state, and the obligations of
third states.
14. I o.
I.
1 10
14.12.
In 1827 the coachman of Mr Gallatin, United States Minister, the Head of Mission in
London, was arrested in the stable of the Legation, charged with assault. The
correspondence shows that the British Government upheld the action taken, and that
Mr Gallatin, who had in the meantime dismissed the servant, dissented from the views
expressed. As the outcome of this case, steps were taken by the British Government to
ensure that no similar arrest of the servant of a foreign minister should in future take
place without a previous communication being made to the minister, in order that his
convenience might be consulted as to the method of putting the warrant into
execution. II
14.13.
The celebrated incident concerning Sun Yat-Sen in 1896 shows that the
inviolability of the foreign embassy both from judicial process and from
executive action was then clearly established in Britain.
In 1896 Sun Yat-Sen, a Chinese national, and a political refugee, was detained as a
prisoner in the Chinese Legation in London, with the apparent intention of transporting
him to China. On the matter coming to light, his friends applied to the court for the issue
of a writ of habeas corpus, but the court declined,12 doubting the propriety of such
action where a foreign legation was concerned, and considering the matter rather one
for diplomatic proceedings. The Chinese minister was thereupon formally requested by
the British Government to release the man, whose detention was contrary to law, and an
abuse of diplomatic privilege. He was released on the following day.
14.14.
I I I
away provided that no charges or fines in respect of the incident are imposed on
the embassy involved.
14. I 5
14. I 6.
The premises of the mission are defined in Article I of the Convention as '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 the mission.' Neither the sending nor the receiving state has a right
unilaterally to lay down that certain buildings are embassy premises. They
have to reach agreement in borderline cases such as cultural institutes under the
direction of a cultural attache, or embassy reading rooms or information offices
I 12
open to the public. But in practice the problems usually arise in determining
the time when the status of premises of the mission begins and ends. The Vienna
Convention has clear provisions regarding commencement and termination of
personal privileges and immunities, but not in regard to mission buildings. It is
settled that ownership of property by a sending state, perhaps with a remote
intention to use it for diplomatic purposes, is not enough to make these premises
inviolable. 15 But if the sending state has notified the receiving state of its
acquisition of premises for use as an ambassador's residence or embassy offices,
and has secured any consents which may be needed under local law (for the
character of a building as embassy premises does not exempt it from local
building or planning laws), then those premises are generally regarded as
premises of the mission while they are being prepared for occupation and use.
In the opposite case, where a diplomatic mission has vacated buildings, they
continue to enjoy inviolability for a 'reasonable period' of a few months,just as
the diplomat is entitled to privileges and immunities for a reasonable period
after his appointment ends. If diplomatic relations have been broken ofT or the
mission has been recalled, premises which are no longer in use may lose their
character of 'premises of the mission' and their consequent inviolability. But
the receiving state will still be obliged under Article 45 of the Vienna
Convention to 'respect and protect' them, along with the property and archives
in them.
DiplolDatic asylulD
14. 17.
14. 18.
In 1726 the Duke of Ripperda, a Dutch officer, and minister of the States-General at
Madrid, who afterwards became Spanish minister offinance and foreign affairs, fell into
discredit, and, alarmed at the readiness with which his resignation was accepted, fled to
the British Embassy. The Ambassador gave an assurance that he would not allow
Ripperda to leave until he had given up certain important papers of state said to be in
his possession. Nevertheless, soldiers were posted in the vicinity of the embassy, with
orders to examine all persons and carriages issuing from it, and the Spanish Council of
Castile, having been invoked, held that the Duke had been guilty of lese-majeste, and that he
could be taken by force from the embassy without infringing the privileges awarded to
ambassadors or violating the law of nations. Ripperda was thereupon arrested within
the Embassy by armed force and his papers seized. In the correspondence which
followed, the British Government protested that only an extreme necessity couldjustify
the violation of an ambassador's house, and expressed the hope that the Spanish King
would see that it was to his own interest to make the necessary reparation. But on
receiving the reply that the Spanish King saw no reason to concern himself further
about the affair, the correspondence assumed a bitter tone. Hostilities having broken
out in the following year, peace was not restored till the signature of the Treaty ofSeville
in 1729, in Article I of which it was stipulated that there should be 'an oblivion ofall that
is past. '16
Diplomatic asylum
14.19.
13
In 1747 one Springer, a Russian subject, domiciled at Stockholm, being accused of high
treason against the King of Sweden, took refuge in the hotel of the British Minister at
Stockholm. Under threats of compulsion, the minister consented to surrender the man,
but protested against the violation of the law of nations and the privileges of
diplomatists. On receiving his report, the British Government instructed him to address
to the King of Sweden a memorial, in which it was laid down as an incontrovertible
maxim that the residence of a foreign minister ought to enjoy the right of asyl urn, so long
as the right was not abolished by mutual consent. In reply, the Swedish Government
denied the assertions of the minister as to the treatment he had received, and sought to
lay the whole blame on him for what had occurred. As a result, the minister was
instructed to leave Stockholm as soon as possible, without taking leave ofthe King, and
the Swedish minister in London received similar orders in consequence. 17
But the United Kingdom would not now regard these cases as precedents or
claim any legal right to give asylum on embassy premises.
14. 20.
14.2 I .
The International Court ofJustice carefully considered the nature and scope of
the Havana Convention on Diplomatic Asylum in 1950 in the Asylum Case l9
and in 195 I in the Haya de la Torre Case. 20 In the first of these related cases they
observed
'that asylum as practised in Latin America is an institution which, to a very great extent,
14
owes its development to extra-legal factors. The good neighbour relations between the
republics, the different political interests of the Governments, have favoured the mutual
recognition of asylum apart from any clearly defined juridical system. Even if the
Havana Convention, in particular, represents an indisputable reaction against certain
abuses in practice, it in no way tends to limit the practice of asylum as it may arise from
agreements between interested Governments inspired by mutual feelings of toleration
and goodwill.'
14.22.
14.23.
Somewhat similar to diplomatic asylum was the custom which existed in Persia
in relatively recent times of taking 'bast' or shelter in a foreign legation as a
means of asserting grievances. The principles of hospitality prevailing there
precluded the denial of hospitality under these circumstances, whatever
inconvenience might be caused. One incident of the kind is recounted in The
Biography of Sir Mortimer Durand, British Minister at Tehran: 22
'One day a royal eunuch came galloping into the legation in great haste to see me on
most important business. The message was that the Shah's wives had taken umbrage at
his decision to marry a girl who was sister of one of his wives. The new favourite was a
daughter ofa gardener whom the uxorious monarch had seen in one of his many gardens
and loved, to the great indignation of her sister, and against Persian custom.
'The other wives took up the matter hotly, and issued an ultimatum that ifthe Shah
would not forgo his purpose, they would all leave the Palace, and take bast at the
legation, which was, they declared, a place of refuge for slaves like themselves, and a
sanctuary for the oppressed.
'I expressed myself as being highly honoured at this proof of their confidence, and
declared that the legation was at the service of the ladies. Upon enquiring the size of the
party, 1 was somewhat staggered to learn that there would be about three hundred in
all. 1 said that the legation would hardly hold so many, but with a sweep of his hand
towards the lawn, the eunuch replied that a tent was all that was required, and, as for
food, a few sheep and some bread would suffice.
15
'The eunuch then galloped off, and returned two hours later, by which time tents
had been pitched on the lawn, sheep had also been purchased, together with the entire
contents of a baker's shop. He declared that the arrangements were excellent, that the
Shah was furious, and that the ladies were getting into their carriages. He again galloped
off, and we awaited the arrival of the refugees with keen interest, when the eunuch
reappeared like a whirlwind and shouted out, wild with excitement, "The Shah has
yielded, the ladies are getting out of their carriages, and send you their grateful
thanks!" ,
Article 23 of the Vienna Convention exempts the sending state and the head of
the mission from all taxes in respect of the premises of the mission, with the
exception of taxes which 'represent payment for specific services rendered.' It is
for each state party to give a precise interpretation of this exception in terms of
its own local taxation system, but the general effect is that the embassy, in
addition to being obliged to pay for commodities or utilities actually supplied,
where charges are levied for these, is expected to pay any tax, or element of a
tax, which relates to a supply or a service from which the embassy benefits. For
example the embassy would be expected to pay rates or taxes which related to
road maintenance or street lighting. It would not be obliged to pay rates or
taxes which related to national defence, or education, or administration.
Under British practice embassies are not expected to pay that part of the local
rates which relates to police protection, although they do benefit significantly
from police protection, because the obligation to provide such police protection
to foreign missions is part ofthe duty which falls on the receiving state to protect
inviolable premises and persons.
14.25.
For the exemption to apply, the tax must in law fall on the sending state or on
the ambassador. If a private landlord lets his property to a diplomatic mission
he cannot claim exemption from rates or taxes which under the local law fall on
him.
Article 24 of the Vienna Convention provides that the archives and documents
of the mission shall be inviolable at any time and wherever they may be. This
means not only that the archives may not be seized or detained for examination
by the authorities of the receiving state but also that no one may be compelled
to produce them as evidence in any legal proceedings in that state. In the case of
Rose v. The King 23 a Canadian court held that documents which had been stolen
from the Embassy of the Soviet Union were admissible evidence in the trial ofa
Canadian citizen for espionage in the absence at least of any intervention or
protest from the Soviet Union. But a similar decision now would be inconsistent
with the inviolability accorded under all circumstances to archives by the
16
The right of the diplomatic mission to free and secure communication for
official purposes is guaranteed by Article 27 of the Vienna Convention.
Specially protected communication is perhaps in practical terms the most
important of all diplomatic privileges and immunities. Without the right to
send messages in code and without being able to rely on the inviolability of the
diplomatic bag an embassy cannot usefully perform its function of observing
and reporting, and it will be seriously hampered in the conduct of negotiations
on any matter of importance if it cannot receive confidential instructions. But
because of the uncertainty ofthe previous international law on a few points and
fear of abuse of wireless transmitters and of the diplomatic bag, Article 27 was
one of the most controversial at the Vienna Conference.
14.28.
14.29.
17
states could afford to install it, and they took the view that the inviolability of
the premises where it was installed, together with their right to free diplomatic
communication, implied that they were under no obligation to seek the consent
of the receiving- state before setting- it up. If the frequency selected caused
difficulty they would cooperate in changing it. The less developed states could
not afford to install wireless in t heir missions, and they were afraid that the
transmitters over which they had no control could be used for propaganda
against them. Eventually they succeeded in including in the Vienna
Convention the provision that 'the mission may install and use a wireless
transmitter only with the consent 0f the receiving State.' If a transmitter is
installed, it is the responsibility of the sending state to observe international
telecommunications regulations. The receiving state, under the International
Telecommunication Convention,2.'; is not responsible.
14.30.
The diplomatic bag is accorded under the Vienna Convention a more absolute
protection than was given under the previous customary law. Previously it was
on the whole accepted that the receiving state had a right to challenge a
bag which it believed to contain unauthorised articles. If this occurred the
sending state could elect either to return the bag unopened or to open it in the
presence of the authorities of the receiving state. This practice ofchallenge to a
suspect bag is still permitted in the case of a consular bag under the Vienna
Convention on Consular Relations. 26 But it is no longer permitted in the case of
a diplomatic bag. The bag may contain only diplomatic documents or articles
intended for official use, but the authorities of the receiving state may not
demand that it be returned or opened even if they suspect that is is being used to
smuggle arms or other illegal exports or imports. States were fully conscious of
the dangers of abuse, but they were even more aware that any right of search
could be abused by officials claiming to have grounds to suspect any bag which
they wished to investigate. The receiving state or the airline authorities may
subject a bag to detector devices designed to show the presence of explosives,
metal or drugs, since this does not involve opening or detaining it, and if this
test disclosed grounds for suspicion the airlines could decline to carry it. In one
incident the customs authorities in Rome realised that a large diplomatic bag
destined for Cairo was emitting moans. They seized and opened it and found
that it contained a drugged Israeli who had been kidnapped. Some members of
the Egyptian Embassy were declared persona non grata as a result of this
discovery. 27
14.3 I.
18
diplomatic bag. The Vienna Convention also authorises the modern practice of
sending a diplomatic bag 'by hand of the pilot'of a commercial aircraft. The
captain who carries a diplomatic bag in this way is not regarded as a courier ad
hoc, but a member of the mission is entitled to access to the aircraft and the
captain in order to take charge of the bag directly from him.
FreedolD of lDovelDent
14.32
14.33.
14.34.
The position as between the United Kingdom and the Soviet Union was set out
as follows in the British Parliament on 24 February 1976 by Mr David Ennals,
Minister of State, in answer to a Parliamentary Question by Sir Frederick
Bennett about travel restrictions for British diplomats in the Soviet Union and
Soviet diplomats in the United Kingdom. Mr Ennals said:
Freedom of movement
19
'British diplomats in the Soviet Union, together with their families, are required to
give the Soviet authorities at least two working days' notice of their intention to travel
beyond a 4o-kilometre radius ofthe centre of Moscow. A few towns and highways in the
Moscow oblast (province) are, however, open to notification-free travel by British
diplomats. One working day's notice is required for journeys by road along certain
prescribed motor tourist routes. The British Ambassador, his family and personal
driver/interpreter may travel without prior notification to the open towns and areas of
the Soviet Union. Large areas within the 4o-kilometre zone centred on Moscow; within
the Moscow province; and in the Soviet Union as a whole are formally out of bounds to
foreigners.
'Soviet diplomats in the United Kingdom, together with their families, are subject to
the requirements of the travel notification scheme. Soviet diplomats must give the
Foreign and Commonwealth Office at least two working days' notice of their intention
to travel beyond a 35-mile radius of the centre of London. Notification is not required
for journeys to the Soviet Embassy's country house at Seacox Heath, nor for road
journeys to Hastings, Bexhill, St Leonards, Rye, Winchelsea and Hawkhurst. The
Soviet Ambassador, together with his family, personal interpreter and personal driver,
is allowed to travel within the United Kingdom without prior notification to the
Foreign and Commonwealth Office. There are no closed areas, as such, in the United
Kingdom to which foreigners may not travel.'29
CHAPTER 15
Immunities of diplomatic
agents
15. I.
Personal inviolability
15.2.
Personal inviolability
121
15.3.
15.4.
Many states, in fulfilment of their duty to prevent any attack on the person,
freedom or dignity of a diplomatic agent, have created special offences in
regard to attacks on diplomats, or punish offences against diplomats with
especially severe penalties. This can mean, for example, that press criticism ofa
foreign ambassador which would not have been criminal if the object of the
criticism had been a private individual, constitutes a criminal offence because
it attacks an ambassador. The Vienna Convention, however, does not make the
creation of special offences or penalties compulsory; nor does the Convention
on the Prevention and Punishment ofCrimes against Internationally Protected
Persons, including Diplomatic Agents, 5 which however obliges States Parties to
'make these crimes punishable by appropriate penalties which take into
account their grave nature.' 'These crimes' include murder, kidnapping, other
violent attacks and threats and attempts to commit such attacks. 6 Some states,
including the United Kingdom, do not have special offences in regard to
diplomats, and so although violent attacks are of course punishable under the
ordinary criminal law, and the courts would take into account the fact that
they took place against a diplomat, offensive comments and criticisms in the
press are usually only punishable if they are obscene or constitute a criminal
libel, which is seldom the case.
122
15.5.
What are the 'appropriate steps' the receiving state must take to protect
diplomats and other inviolable persons must be determined in the light ofmany
relevant circumstances by agreement between the sending and the receiving
states. The negotiators of the Vienna Convention deliberately added the word
'appropriate' to make clear that there must be limits to the obligations of the
receiving state. Major capitals will have several thousand diplomats, together
with their families, and members of the administrative and technical staffs of
embassies and their families all entitled to inviolability, and clearly it would be
an impossible burden for each of these to have special police protection for
person and residence. But where there is evidence of a threat to the safety of a
diplomat, such as a likely mob attack or indications that a kidnapping is being
planned, then the sending state can demand that the receiving state should
provide special protection such as an armed guard. A sending state which is
well equipped with resources may prefer to provide special protection itselffor
vulnerable diplomats, and it may do this in agreement with the receiving state.
Bodyguards provided by the sending state are not of course exempt from the
laws of the receiving state regarding the carrying of firearms, or the use of
violence. It seems now to be clearly established that the 'appropriate steps'
which the receiving state is bound to take to protect personal inviolability do
not include surrendering to demands made by kidnappers when a diplomatic
kidnapping has taken place. When the German Ambassador to Guatemala,
Count von Spreti, was kidnapped in 1970, the Government of Guatemala
refused to accept the illegal demands made by his kidnappers, and the Count
was murdered. 7 The German Government accused the Guatemalans of failing
in their duty to protect the Ambassador, but the Guatemalan Government did
not accept that they had in any way fallen short of their legal obligations. The
fact that governments have not regarded a diplomat's inviolability as obliging
them to surrender to illegal demands made by kidnappers has probably done as
much as the tightening of security measures and the conclusion of the
Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, to discourage
terrorists from regarding diplomats as particularly attractive targets. The
kidnapping of diplomatic agents is discussed in more detail in Chapter 24.
123
15.7.
15.8.
15.9.
The inviolability ofa diplomat's property does not mean that he is exempt from
the laws and regulations of the receiving state regarding exchange control. He
must, in accordance with Article 4 I of the Convention, respect these like other
laws. But in practice most states apply their regulations to foreign diplomats in
such a way that they do not experience practical difficulties. Ifany state did not
do so, it could be argued that it was failing in its duty under Article 25 of the
Convention to 'accord full facilities for the performance of the functions of the
.. ,
mIssIon.
124
15. I
I.
25
then be obliged to withdraw him. But states do not have set rules as to when
they will ask for a waiver ofimmunity or declare an offender persona non grata, or
when they will withdraw a diplomat against whom serious accusations have
been made. All the circumstances will be considered by both governments in
each case.
15. 12.
15. I 3.
One must look to the civil law to determine what 'real action' means, and that
makes clear that a real action is an action where ownership or possession of
immovable property is claimed. It is not very clear from the records of
the Vienna Conference whether the words 'unless he holds it on behalf of the
sending State for the purposes of the mission' exclude from the exception the
case of the diplomat in whose name the mission premises are placed or whether
their scope is wider and they exclude from the exception the private residence
126
of a diplomat, which he can be said to hold 'on behalf of the sending State for
the purposes of the mission.' Since the rationale of this exception to immunity is
to make possible the trial of actions affecting title to real property, which could
not possibly be tried in the diplomat's home state, it may be argued that the
exception should be narrowly construed and that it should be possible to bring
an action to determine the legal question of the ownership ofa house in which a
diplomat is living. Any judgement obtained would of course be unenforceable
so long as the diplomat continued to live in the house.
15. I 4.
1 27
sometimes for social reasons. It is evident from the foregoing that when
commitments of this kind are contemplated by members of his staff or their
families, a head of mission should have the opportunity of considering
whether the appropriate authorities of the receiving state should be consulted.
15.16.
15. 1 7.
15.18.
The Vienna Convention endorses the position there taken by the Netherlands
Government. It is made clear that the diplomat is not merely immune from
compulsion in regard to the giving of evidence; he is exempt from any legal
obligation in the matter. The receiving state would thus not bejustified in using
his refusal as an excuse to declare him persona non grata (as happened to the
Dutch minister at Washington). In fact many states take a helpful attitude and
are prepared to authorise their diplomats to make statements on condition that
they are not cross-examined, or to submit written statements, or to make oral
statements on embassy premises. Such evidence was formerly of little use in
128
15.20.
15.21.
The fact that the immunity belongs to the sending state does not however
preclude that state from delegating authority to waive it. The instructions
given to diplomatic service officers of the United States and of the United
Kingdom are that immunity from jurisdiction must never be waived without
instructions from the home government. But not all states require reference
back before waiver is made, and there is nothing in Article 32 preventing a state
from giving its ambassador authority to waive the immunity of members ofhis
29
If the diplomatic agent himself chooses to bring an action before the local
courts, he obliges himself, like a sovereign in similar circumstances, to comply
with the rules of the court. He cannot plead immunity in regard to any set-offor
counterclaim which may be pleaded, provided that it is directly connected
with the principal claim which he has brought. If he succeeds, and the
defendant appeals, he cannot plead immunity in regard to the appeal. The
proceedings which he has begun are regarded as a single entity until the matter
is finally resolved as to liability. But execution of ajudgement and the carrying
out of penalty or sentence following criminal proceedings are regarded as
separate from the issue of liability or guilt, and a separate waiver is required
before they may be carried out.
Article 39 of the Vienna Convention lays down that personal privileges and
immunities begin when the person entitled enters the receiving state on his way
to take up his post. If he is in the territory of the receiving state when he is
appointed, his privileges and immunities begin when his appointment is
notified to the Ministry of Foreign Affairs. This provision ends the previous
uncertainty in state practice as to whether the critical date for the beginning of
130
The position regarding termination of immunities on the other hand has long
been established - that immunities subsist until the diplomatic agent leaves the
country on termination of his mission, or for a reasonable period to enable him
to do so.
In 1859, in the case of the Magdalena Steam Navigation Company v. Martin, in the
English courts, Lord Chief Justice Campbell observed: 'There can be no execution
while the ambassador is accredited, nor even when he is recalled, if he only remains a
reasonable time in this country after his recall. '20
And in 1894, in the case of Musurus Bey v. Gadban, the English court found it necessary
to determine whether the Turkish Ambassador to London was entitled to diplomatic
immunity between the presentation of his letters of recall on 7 December 1885 and his
leaving the country in February 1886. It was held by the Court ofAppeal that the point
was decided in the case of Magdalena Steam Navigation Co. v. Martin. 'It was there held that
there could be no execution against an ambassador while he is accredited, nor even
when he is recalled, ifhe only remains a reasonable time in this country after his recall,
and that is precisely what Musurus Pacha did in the present case. During these two
months Musurus Pacha was in the same position as he was in before his recall as to
immunity from being sued. '21
In 1929 a Netherlands court in the case of Banco de Portugal v. Marang, etc. held that
the immunity from civil jurisdiction enjoyed by a foreign diplomatic representative
ceases on the termination of his mission, except for the time required by him to liquidate
his affairs. 22
15.26.
Although the principle of the 'reasonable period' to leave the country is now
laid down in Article 39 ofthe Vienna Convention, no guidance is given on what
constitutes a 'reasonable period'. A few states defined in precise terms in their
internal law the duration ofthis 'reasonable period.' 23 Others have preferred to
retain a flexible approach which allows their courts or administrative
authorities (in the case of privileges) to have regard to the facts ofeach case. For
example an ambassador who was winding up the affairs of the mission as a
whole might claim to be entitled to a longer 'reasonable period' than one
Other remedies
13 I
merely leaving for his next posting. The United Kingdom in general prescribe
a period of one month for administrative purposes such as tax exemption, but
this could be varied in special circumstances and would not bind the courts if
immunity were in issue.
15. 2 7.
The immunity of a diplomatic agent for his official acts - acts performed in the
exercise of his functions as a member of the mission - is on the other hand
unlimited in time. Immunity in regard to such acts is not a personal immunity
of the diplomatic agent but is in reality the immunity of the sending sovereign
state. It therefore subsists even when the diplomat's immunity for his personal
acts has ended along with his mission. This rule was reaffirmed by the English
Court of Appeal in the case of Zoernsch v. Waldock, where Diplock, L. j.,
explained the position as follows:
'In respect of acts done by an envoy in his private capacity the purpose of his
immunity from suit or legal process is so that he may perform his duties to his
government without harassment while en poste. The immunity is from legal
process, not from liability, and its purpose is fulfilled when he has ceased to be en poste
and has had a reasonable time to wind up his affairs in the country to which he is
accredited. The English cases show that in English law an envoy's immunity from suit
and legal process in respect of acts done in his private capacity endures only so long as he
is en poste and for a sufficient time thereafter to enable him to wind up his affairs:
Magdalena Steam Navigation Co. v. Martin (23); Musurus Bey v. Gadban (24)' Quite different
considerations, however, apply to acts done by him in his official capacity. Such acts are
done on behalf of his government. His government being a foreign sovereign government, under principles of English law which are so well known that I refrain from citing
authority, is immune from the jurisdiction of the English courts. The propriety of its acts
cannot be examined in a municipal court unless it consents to waive its immunity. A
foreign sovereign government, apart from personal sovereigns, can act only through
agents, and the immunity to which it is entitled in respect of its acts would be illusory
unless it extended also to its agents in respect ofacts done by them on its behal[ To sue an
envoy in respect of acts done in his official capacity would be, in effect, to sue his government irrespective of whether the envoy had ceased to be en poste at the date ofthe suit.' 24
Other remedies
15.28.
A person who has a civil dispute with a diplomat or other person entitled to
diplomatic immunity has, if it is clear that immunity will be raised as a bar to
proceedings before the courts of the receiving state, three possible channels
through which he may endeavour to obtain satisfaction:
I.
He may try to institute proceedings before the courts of the diplomat's home
state. Although Article 3 I of the Vienna Convention makes clear that the
immunity from jurisdiction of a diplomatic agent in the receiving state does
not exempt him from the jurisdiction of the sending state, there are many
practical obstacles to such a course. The prospective plaintiffmust seek legal
advice in the sending state. If he commences proceedings it may be
impossible to serve process on the diplomat while he is abroad, and the
diplomat may leave his post only to proceed directly to another. Even if the
proceedings may be validly instituted in some way, it will be difficult to
persuade witnesses to travel to another state to give evidence, and there will
132
be many matters, such as disputes over real property in the receiving state,
where the sending state has no jurisdiction.
2. He may lay the matter before the ambassador of the sending state hoping to
have his assistance in obtaining a settlement. Where there are no complex
legal or factual matters in dispute this procedure will often secure quick
redress. A member of mission who has been dilatory in settling a debt or a
claim for damages will be reluctant to have the matter reported to his
government with possible adverse comment on his behaviour by his
ambassador.
3. He may lay the matter before his own government, usually before the
Ministry of Foreign Affairs, and ask them to intervene with the head of
mission concerned. There are no legal rules as to what action may be taken
in such a case. Practice of the Foreign and Commonwealth Office in
London is to intervene only when three conditions are satisfied. The
complainant must produce satisfactory evidence of a prima facie legal case.
He must have exhausted other methods of obtaining settlement (that is, he
must have drawn the matter clearly to the attention of the member of
mission concerned and of the head of that mission). There must be some
indication that the person concerned is sheltering behind diplomatic
immunity (and so, for example, the Foreign and Commonwealth Office will
not intervene if there appears to be no immunity from action because the
diplomat's appointment has ended some time ago or the matter relates to a
claim against a member of the administrative and technical staff which is
clearly of a private nature).
15.29.
133
that diplomats should be exempt from certain obligations - for example rules
under local labour law - which are inappropriate to their special circumstances
or might be argued to be incompatible with their status. But in the absence of
such special exemptions he is bound by local laws even though they cannot be
enforced against him because of his immunity. For example it is of the greatest
importance that he should observe local motor traffic regulations, maintain his
car to the standard legally required and take out third-party insurance
wherever this is compulsory. In the United Kingdom it was established in the
case of Dickinson v. Del Solm:25 that an insurer cannot take advantage of the
special position of a client entitled to diplomatic immunity to avoid making
payment on a third-party claim, since his client is liable in the event of his
causing damage. But the Foreign and Commonwealth Office have sought to
prevent any further argument on this by asking all insurers in this field to give
them an assurance that they will not seek to take advantage of the privileged
position of a diplomatic client. A list of insurers who have given this
undertaking is circulated to missions in London, and the requirements of
English law regarding licensing, maintenance, testing and insurance of motor
vehicles are specially drawn to their attention.
15-3 I.
The obligation to respect the laws and regulations of the receiving state applies
to the official as well as the private activities of diplomats. For example a
diplomat may only properly exercise consular functions on embassy premises if
this is permitted under the law of the receiving state. Some states prohibit this
and others require special permission, and Article 3 of the Vienna Convention
was intended to make it clear that a diplomatic mission had no inherent right to
perform consular functions regardless of the wishes of the receiving state. In
particular, diplomats should not perform consular marriages on embassy
premises unless this is permitted under local law. United Kingdom diplomatic
service officers are not now permitted to perform consular marriages unless not
only is this pennitted under local law but the local law (which is the law of the
place of marriage) will regard the marriage as valid. Many countries will not
regard as valid a marriage performed by a foreign diplomat or consul in their
territory, and this means that the marriage is unlikely to be regarded as valid in
any country other than the diplomat's sending state.
15-32.
A second duty traditionally laid upon diplomatic agents, and restated in the
Vienna Convention, is the duty not to interfere in the internal affairs of the
receiving state. There have been a number of notorious instances where
flagrant or unluckily discovered breach of that rule has led to the diplomat in
question being declared persona non grata.
In ]888 Lord Sackville, British minister at Washington, received a letter purporting
to come from a naturalised citizen of English birth, named Murchison, asking for advice
as to the way he, and many other individuals in his position, should vote in the pending
election of the President. Lord Sackville replied that 'any political party which openly
favoured the mother country at the present moment would lose popularity, and that the
party in power was fully aware of the fact.' With respect to the 'questions with Canada,
which have been unfortunately re-opened since the rejection of the [fisheries] treaty by
the Republican majority in the Senate, and by the President's message alluded to [by
the writer of the letter], allowance must be made for the political situation as regarded
the presidential election,' and he enclosed an extract from a newspaper in which electors
134
were distinctly advised to vote for Mr Cleveland. This letter of Lord Sackville found its
way into the newspapers, and caused a lively discussion in the Press. The United States
Secretary of State telegraphed to the United States Minister at London, complaining of
the letter and of the language used by Lord Sackville at interviews with newspaper
reporters, and suggested that Her Majesty's Government should take appropriate
action without delay. Lord Salisbury declined to act until he should be in receipt ofthe
precise language of Lord Sackville and his explanation. Lord Salisbury appears to have
said also that the Minister's recall would end his diplomatic career, which would not
necessarily be the case if he were dismissed by the United States, for which there were
precedents. Mr Bayard thereupon addressed a note to Lord Sackville, informing him,
by the instructions of the President, that he was convinced that 'it would be
incompatible with the best interests and detrimental to the good relations of both
governments that you should any longer hold your present official position in the United
States' and enclosing a passport. 26
In 1915 the United States Government requested the recall of Dr Constantin
Dumba, the Austro-Hungarian Ambassador at Washington, who admitted that he had
proposed to his government plans for instigating strikes in American munition factories.
Dr Dumba was therefore no longer acceptable to the United States Government, who
had no alternative but to ask for his recall on account of his improper conduct, which
they did with deep regret, while assuring the Austro-Hungarian Government that they
sincerely desired to continue the existing cordial and friendly relations. 27
On June 15, 1931, in the House of Commons, London, questions were asked of the
Prime Minister regarding certain addresses given by members of the Soviet Embassy
and the Finnish Legation within the precincts of the House, and it was suggested in reply
that Members might consider whether in using the committee rooms for addresses by
members of the diplomatic body upon controversial questions they were not adopting a
practice open to grave objection. In reply to a further question by Sir A. Chamberlain
whether such addresses by foreign diplomats were not contrary to diplomatic usage,
whether the interference of diplomats in the internal affairs of other countries had not
led to their being handed their passports, and whether it was not right that members of
embassies and legations should refrain in future from delivering addresses of that kind,
the Prime Minister said that that was the character and nature of the statement he had
made, and that he hoped its complete significance would not be lost. 28
15.33.
The third general obligation set out in Article 41 of the Vienna Convention is
procedural in nature: 'All official business with the receiving State entrusted to
the mission by the sending State shall be conducted with or through the
Ministry for Foreign Affairs of the receiving State or such other ministry as may
be agreed.' It is, however, increasingly frequent that states agreee between
themselves to vary this rule in their daily business. 29
CHAPTER 16
Privileges of diplomatic
agents
16.1.
Five privileges accorded to diplomatic agents are specifically dealt with in the
Vienna Convention - exemption from taxation, exemption from customs
duties and baggage inspection, exemption from social security obligations,
exemption from personal and public services, and exemption from certain laws
of the receiving state regarding the acquisition of nationality. The right to
freedom of movement, which has already been discussed among the privileges
and immunities of diplomatic missions in Chapter 14, may also be
characterised as a personal privilege. In addition a diplomat may also be
granted special privileges under the law of the receiving state in the absence of
international obligation. For example, exemptions from local requirements
regarding immigration formalities or registration by aliens are quite common,
although there is no reference to them in the Vienna Convention.
Exemption from taxation in the receiving state is probably the most important
of a diplomat's personal privileges. The principle was clearly established under
customary international law, but states varied in the exceptions which they
admitted to the general principle, and it was difficult to deduce general
principles from the divergent and detailed provisions in the tax law ofdifferent
states. Article 34 of the Vienna Convention now provides in general terms that
a diplomatic agent shall be exempt from all dues and taxes, personal or real,
national, regional or municipal, and sets out a list of exceptions to the general
rule. There a ppear to be three types oftaxation where a diplomat is not entitled
to exemption.
16.3.
136
16.4.
The second category of tax which the diplomat must pay relates to activities
which are extraneous to his proper activities in the receiving state. He must pay
taxes on private immovable property in the receiving state 'unless he holds it on
behalf of the sending State for the purposes of the mission.' If he acquires a
holiday cottage, or a block of flats which he then lets to tenants, he must pay
rates and property tax imposed on these premises. But ifhe holds the embassy
premises in his own name, as he maybe required to do by the legal
requirements of the receiving state, he is not obliged to pay rates and taxes on
them. The words 'unless he holds it on behalf of the receiving State for the
purposes of the mission' clearly imply that no taxes are payable on the embassy
premises held in the name ofa member ofthe mission, but it is less clear whether
their effect is to take a diplomat's own residence out of the scope of the
exception. As with the corresponding words in Article 3 I (I Ha) the records of
the Vienna Conference leave room for argument on the point, and not all states
have adopted the same interpretation in regard to diplomatic residences. The
United Kingdom regard the diplomat's residence (whether privately owned or
leased or forming part of a government-owned block) as held by him 'on behalf
of the sending State for the purposes of the mission.' They therefore accord
relief from local rates on such residences in London, and they do receive
reciprocal treatment from the great majority of other states, although, since
systems of property tax differ, this does not always mean that the other state
concerned adopts the same interpretation of the Convention. Some states
believe that residences are not covered by the expression 'private immovable
property;' others do not impose tax on residences at all, while others may be
granting relief to United Kingdom diplomatic residences on a basis of
reciprocity. The general principles applied in the formulation of Article 34
would suggest that residences should be exempt from tax, since the occupation
of a residence in the receiving state is essential to perform diplomatic functions.
Holiday homes and premises which are leased are on the other hand extraneous
to diplomatic activities and therefore properly taxable.
16.5
Another exceptional case in this category where the diplomat is liable to tax is
'estate, succession or inheritance duties levied by the receiving State, subject to
the provisions of paragraph 4 ofArticle 39.' Article 39(4) in the special context
of the death of a member of the mission deals with the question of export of his
personal property (which must be permitted, with the exception of property
acquired in the country the export of which was prohibited at the time of the
death) and with estate duty. It provides that 'Estate, succession and inheritance
duties shall not be levied on movable property the presence of which in the
receiving State was due solely to the presence there ofthe deceased as a member
of the mission or as a mem ber of the family of a member of the mission.' These
137
provisions taken together show the same functional approach to the question of
tax exemption; the diplomat should not pay tax, or his estate be liable, in
respect of matters which are a necessary par~ of his living and working in the
receiving state. But ifhe acquires a substantial fortune or holds property in the
receiving state which has no relation to his functions, estate or succession duty is
payable on it.
16.6.
The third exception to tax exemption which most clearly relates to matters
which are not a necessary part of diplomatic work in the receiving state is 'dues
and taxes on private income having its source in the receiving State and capital
taxes on investments made in commercial undertakings in the receiving State.'
If the diplomat lets property privately or makes profits from investing on the
stock exchange in the receiving state, he is liable to pay tax on these profits.
16.7.
The final category of tax which the diplomat is liable to pay is the tax which is
in reality a charge for a service. Article 34 lists among the exceptions to the
general rule 'charges levied for specific services rendered.' The most frequent
application of this exception is to local rates. Just as under Article 23 the
embassy is made liable to that part of local rates or taxes which relates to
services rendered to the property, so under Article 34 the diplomat must pay
such charges in relation to his residence. He could also be required to pay road
or bridge tolls, where the proceeds were used for the upkeep of the particular
road or bridge. The final exception listed in Article 34: 'registration, court or
record fees, mortgage dues and stamp duty, with respect to immovable
property, subject to the provisions of Article 23,' may be regarded as an
example of the same principle. The dues described are, in general, not imposed
in order to raise revenue but to cover the administrative cost of providing the
service of registration of immovable property. Embassy premises are, however,
exempt from these dues.
16.8.
Article 34 is of necessity cast in very general terms, and to ascertain the precise
position it is necessary to examine the tax laws, or at least the information
circulated to embassies, in each state party to the Convention. There are
sometimes difficulties in applying the Convention to a particular new tax, and
differences between sending and receiving states as to whether a particular tax
has been correctly classed. In these cases it is usually necessary to examine the
purpose and nature of the particular tax, and it may also be helpful to ask
whether on the general grounds of principle described an exception may be
justified because relief would be administratively impractical, because the tax
relates to essentially and extraneous activities or because the tax is in
reality a charge for a service.
Although it had for several centuries been the practice to grant diplomats
exemption from customs duty on import oftheir personal effects and articles for
their personal use or consumption, this was traditionally regarded as a matter
of usage and not of binding customary law. l
138
16.10.
Governments may well have felt that their position in laying down regulations
to end abuse was stronger so long as the exemption from duty was regarded as a
conceSSIOn.
16.11.
16.12.
On the other hand provided that the ambassador of the sending state certifies
that a particular consignment is of 'articles for official use,' the receiving state
will ordinarily accept the duty-free import even of highly unusual items; for
example the United Kingdom during the construction of new embassy
premises in the Soviet Union imported building materials free of duty into the
Soviet Union. Article 36 imposes an obligation to permit entry, as well as to
exempt from duty, and so the sending state, provided that the articles are
genuinely required for official use, would be justified in importing items such as
medicinal drugs or alcohol, even where in the absence of privilege such items
could not be imported under the law of the receiving state. But diplomats on
the other hand are not justified in importing for personal use articles whose
139
import is forbidden under local law, unless they have specific authority from
the receiving state. The powers given in this Article to search a diplomat's
baggage for 'articles the import or export of which is prohibited by the law or
controlled by the quarantine regulations of the receiving State' imply that the
receiving state need not admit such articles.
16.13.
The regulations prescribed by the United Kingdom for the import of goods
under diplomatic privilege are set out in Annex C to a Memorandum on
Diplomatic Privileges and Immunities which was circulated by the Foreign
Office to diplomatic missions in London in 1966, shortly after the United
Kingdom became a party to the Vienna Convention. After setting out the
entitlement of different categories of staff, the Annex continues with the
following general rules:
General
7. The relief from Customs duties outlined above applies to goods of foreign or
Commonwealth origin only (with the exception ofBritish manufactured motor cars
which may be imported free of Customs duties if previously owned and used
abroad).
8. Goods are allowed to be delivered under the above arrangements only on condition
that they are for the personal use of the entitled person or member of his family
forming part of his household or for the official use of a mission or international
organisation. Such goods must not, therefore, be sold, hired, lent, given away or
otherwise disposed of to non-privileged persons. Exceptionally, permission may be
given, on payment of the appropriate Customs charges, for the disposal of certain
articles such as motor cars to a person not entitled to Customs privileges.
Application for such permission should be made to the Protocol and Conference
Department, Foreign Office/Commonwealth Office before any goods imported
free of Customs duties are disposed of.
9. Restrictions will not normally be placed on the quantities of goods imported under
the above arrangements provided that the goods are genuinely required for the
personal use of a privileged individual or for the official use of a mission or
international organisation. If, in any particular case, quantities in excess of
reasonable genuine requirements are imported, the Commissioners ofCustoms and
Excise reserve the right to place a limit on the quantities which may be released free
of customs charges.
10. Goods delivered free of Customs charges under the above arrangements will
normally be released without examination. The Commissioners of Customs and
Excise reserve the right, however, to examine any such goods in exceptional
circumstances. The examination would normally be made after consultation with
the privileged importer and, if desired by him, in his presence or that of his
appointed representative.
11. Arrangements exist for facilitating the temporary exportation from the United
Kingdom of motor vehicles which have been acquired in, or imported into, the
United Kingdom under diplomatic privilege. These arrangements involve
completion by the privileged exporter of form C. & E. 945, copies of which may be
obtained from the Protocol and Conference Department, Foreign Office/Commonwealth Office or direct from the Commissioners of Customs and Excise, King's
Beam House, Mark Lane, London, E.C.3.
12. The arrangements mentioned in paragraph I I do not apply to motor vehicles being
140
16. I 4.
Article 36 of the Vienna Convention also provides that 'The personal baggage
of a diplomatic agent shall be exempt from inspection, unless there are serious
grounds for presuming that it contains articles not covered by the exemptions
mentioned in paragraph I of this Article, or articles the import or export of
which is probbited by the law or controlled by the quarantine regulations of
the receiving State. Such inspection shall be conducted only in the presence of
the diplomatic agent or of his authorised representative.' The right to inspect
the personal baggage of a diplomat in these exceptional circumstances is an
important exception to the general inviolability of a diplomat's property in the
receiving state. It should also be added that if a diplomat declines to allow his
baggage to be inspected or tested by agents ofan air carrier, under the practices
which since the advent of hijacking and terrorism on aircraft have become
general, the carrier is under no obligation to carry him.
16. I 5.
Article 33 of the Vienna Convention provides that diplomatic agents are, with
respect to their work for the sending state, exempt from any social security
provisions in the receiving state. Previously this exemption was not established
in international custom, although some states expressly exempted diplomats in
their legislation. In states where there was no express or implied exemption in
regard to diplomats the position often was that the diplomat could choose
whether he wished to participate, or rely on his immunity fromjurisdiction ifhe
did not wish to do so. No pressure appears to have been put on embassies to
comply, except in regard to staff recruited in the receiving state. But this was
not entirely a satisfactory position, and it was recognised at the Vienna
Conference that exemption in substance was entirely justified for career
diplomats, so that they could, in general, expect to be covered throughout their
Nationality
141
peripatetic career by the system of their home state, to which they were likely to
return in the event of accident, illness, unemployment or retirement. The
Convention, however, permits voluntary participation in the social security
scheme of the receiving state if this is permissible under the local law (but under
the law of the United Kingdom for example such voluntary participation is not
permitted). Sending and receiving states may also make more liberal or more
restrictive arrangements in the context of bilateral social security agreements,
for the Vienna Convention expressly provides that its own provisions on the
matter do not affect bilateral or multilateral agreements, whether prior or
subsequent, on social security.
Exemption from such compulsory services as jury service, military service and
from military obligations such as requisition and billeting has traditionally
been accorded to diplomats. It is now required under Article 35 of the Vienna
Convention.
Nationality
16.18.
16.19.
Article 11 of the Optional Protocol provides that 'Members of the mission not
being nationals of the receiving State, and members of their families forming
part of their household, shall not, solely by the operation of the law of the
142
receiving State, acquire the nationality of that State.' There were two main
objections to this provision. The first was that it did not take sufficient account
of the degree of connection between the child born and the receiving state. For
example a child born to parents both of whom were permanently resident in
the receiving state and whose father was a national of the receiving state (if the
mother was a member ofa mission and was not a national of the receiving state)
would not acquire automatically the receiving state's nationality. The second
was the possibility that in some cases the provision could give rise to
statelessness - for example in the case of an illegitimate child born to a woman
member of a diplomatic mission. The Protocol also has the effect of excluding the
possibility of the nationality of the receiving state automatically being acquired
on marriage to a member ofa diplomatic mission, and this also caused difficulty
for some states. The Protocol does not, of course, exclude the acquisition of
nationality by naturalisation, or by the exercise of rights to choose the
nationality of the receiving state on a voluntary basis.
16.20.
States which have not become parties to the Optional Protocol of course
continue, in general, to apply local laws which accord with the broad principle
established under customary international law. In the United States and the
United Kingdom, for example, the exception from the rule of acquisition of
nationality by birth in the territory depends on possession by the father of
immunity from jurisdiction. In the United Kingdom nationality is not
acquired 'if at the time of his birth - his father is a person on whom any
immunity from jurisdiction is conferred by or under the Diplomatic Privileges
Act, 1964, or on whom such immunity from jurisdiction as is conferred by that
Act on a diplomatic agent is conferred by or under any other Act, and is not a
citizen of the United Kingdom and Colonies.'4
CHAPTER 17
The two previous chapters have set out the scale of immunities and privileges
which is accorded under the Vienna Convention to diplomatic agents who are
not nationals or permanent residents of the receiving state. A majority of the
individuals who are entitled under the Convention to some immunities or
privileges do not, however, come into this category, and they receive privileged
treatment on a lesser scale. Article 37 of the Vienna Convention sets out in
precise terms the immunities and privileges which must be accorded to families
ofdiplomatic agents, to members of the administrative and technical staffof the
mission and their families, to members of the service staff of the mission and to
private servants of members of the mission. Nationals of the receiving state are
entirely excluded from the provisions of Article 37. Permanent residents of the
receiving state are excluded also except in the case of members of the family
of a diplomatic agent. Article 38 sets out the immunities to be accorded to
diplomatic agents who are nationals or permanent residents of the receiving
state.
The members of the family ofa diplomatic agent forming part of his household,
unless they are nationals of the receiving state, enjoy the entire range of
diplomatic privileges and immunities. If they are nationals of the receiving
state they receive no personal privileges or immunities at all, although the
diplomat may use his exemption from customs duty to import free of duty
articles for their personal use. Continuing immunity in regard to official acts is
of course irrelevant in the case of a family member, who does not carry out
official acts.
17.3.
The expression 'member of the family forming part of the household' is not
defined in the Convention. Considerable effort was devoted during the Vienna
Conference to the fonnulation of a definition, but none of those proposed
obtained the necessary majority. The question of who may qualify as a
'member of the family' is thus in principle for negotiation between sending and
receiving states. But states may establish reasonable guidelines for the
interpretation of the term, and these will normally be applied in practice in the
receiving state. Most states have not enunciated rigid rules on the matter and
144
have preferred to retain sufficient flexibility to deal with unusual cases (such as
polygamous diplomats arriving en poste with more than one wife) as and when
they arise. All states, however, accept the spouse of a diplomatic agent as a
member of the family. Spouse includes the husband of a woman diplomat. At
the Court ofStJames's in recent years a few married ladies have been received
as ambassadors and a greater number as diplomatic agents, and their husbands
have been accepted as entitled to diplomatic privileges and immunities. All
states accept the minor child of a diplomat as a member of the family, although
there could be differences between sending and receiving state as to whether a
child is still a 'minor'. The United Kingdom regard the law of the receiving
state as determining this question. Beyond these categories practice varies. The
United Kingdom for the administration of privileges (a claim to immunity
would have to be determined by the courts) normally accept as members of the
family persons in the following three categories: (i) a person who fulfils the
social duties of consort or hostess to a diplomat who is not accompanied by a
wife; (ii) a child of full age who lives with the diplomat at least during vacations
(if he is a student) and is not engaged in paid employment on a permanent
basis; and (iii) a parent of the diplomat who lives with him and is not engaged in
paid employment on a permanent basis. But these categories are not exclusive,
and other claims to privileges as a member of the family of a diplomatic agent
will be considered in the light of the particular facts.
145
afforded by immunity for official acts alone, whereas the second are not likely to
be harassed or attacked and therefore do not need the special protection of
inviolability or immunity from jurisdiction in regard to their private acts. The
distinction itself was readily accepted and the terms have quickly become
standard diplomatic usage. But it proved difficult to agree on the exact
treatment to be accorded to administrative and technical staff The
formulation in Article 37 resulted from compromise. It constitutes progressive
development in this area, and it has not been universally accepted.
17.5.
There are no precise rules in the Convention or in practice as to which tasks are
properly to be performed by 'administrative and technical staff and which by
'service staff.' 'Members of the administrative and technical staff are defined
simply as the members of the staffof the mission employed in the administrative
and technical service of the mission. 'Members of the service staff are the
members of the staffofthe mission in the domestic service of the mission. It is for
the sending state to notify the receiving state of the appointment ofmission staff
in the various categories, and it must therefore decide borderline cases, such as
security guards and embassy teachers, for itself, acting in good faith. For
example it is clearly improper to appoint staff to a staff category which is not
justified by the work they do, simply to give them greater privileges and
immunities. But the receiving state is not under the Convention given power to
challenge a classification ofstaffor unilaterally to demand that they be assigned
to a lower staff category. It can of course ask the sending state to reclassify
particular staff. But if the sending state refuses, the receiving state, if unwilling
to acquiesce, can only declare the individuals persona non grata or not
acceptable, or use its powers under Article I I of the Convention to limit the
number of staff appointed to a particular category.
17.6.
17.7.
146
exemption from customs duty only in regard to those articles which they import
when they arrive to take up their post. They cannot later import items free of
duty, and in particular they cannot import wines, spirits and tobacco duty free
as diplomats can. Each receiving state has exact regulations concerning 'first
arrival privileges' (premiere installation), as the privilege given to administrative
and technical staff is often called. Some countries may allow only one car to be
imported on arrival in the receiving state. All countries have a period during
which articles must be imported if they are to qualify as being 'imported at the
time of first installation'. Some countries (including the United Kingdom)
require articles to be imported within three months after the arrival of the staff
member himself. Others are more generous and grant exemption from duty
even where the articles are imported up to six, nine or twelve months later.
Most will allow an extension if there are special circumstances such as an
unexpected delay in the shipment. The United Kingdom also expect items to
be in the ownership or possession of the staff member when he arrives - or at
least to have been ordered by then. A staff member travelling to a different
climate who wishes to import suitable clothing duty free after his arrival must
at least place his order before travelling to the receiving state.
17.8.
Four states - Egypt, Morocco, Cambodia and Portugal- have at various times
entered reservations 3 to the provision in the Vienna Convention which
regulates the privileges and immunities of members of the administrative and
technical staff They wished to accord to those staffonly the much lower scale of
privileges and immunities which under the Convention is given to service staff.
A number of other states, mainly European, objected to those reservations but
made clear that they regarded the reserving states as parties to the Convention.
Portugal has since withdrawn her reservation and the others have made clear
that in principle they are prepared to accord Vienna Convention treatment to
administrative and technical staff in missions where they are explicitly assured
of reciprocity for their own staffabroad. The People's Republic ofChina which
acceded to the Convention in November 1975 stated in its instrument that it
'holds reservations ... on the provisions of paragraphs 2,3 and 4 ofArticle 37.'4
This reservation therefore applies to all junior staff, not only to administrative
and technical staff, and many states have lodged objections to it.
Service staff
17.9.
Service staff, who are defined as members of the staff of the mission in the
domestic service of the mission, include embassy drivers, cooks, door-keepers
and cleaners. They differ from 'private servants' of members of the mission in
being employed by the sending state and not by any individual member of the
mission. They receive under the Vienna Convention only immunity for their
official acts, which may be regarded to some extent as acts of the sending state;
exemption from tax on the emoluments of their job, which may equally be
regarded as an exemption for the sending state which provides these
emoluments; and exemption from social security provisions. They are entitled
to no immunities or privileges of a purely personal character. Local nationals
Private servants
47
The limited privileges and immunities accorded under the Vienna Convention
may of course be supplemented by more generous provisions under local law or
practice, or by bilateral agreement between sending and receiving state.
Article 47 expressly sanctions the giving of more favourable treatment than is
required by the Convention where this is based on custom or agreement. For
example, when the United States ratified the Vienna Convention, it had not
yet been able to secure legislation to bring its own practice into conformity with
the provisions of the Convention; it was nevertheless made clear that the
greater immunities given tojunior staffin foreign missions under earlier United
States legislation would continue to apply, at least for the time being. 5 The
United Kingdom accords more generous treatment to junior staff in foreign
missions only on the basis ofagreements or arrangements already in force when
she became a party to the Vienna Convention. She has a number of such
agreements or arrangements providing for more generous exemption from
customs duty for junior staff, and three agreements - with the Soviet Union,
Bulgaria and Czechoslovakia - which accord inviolability of person and
residence and personal immunity from jurisdiction on the diplomatic scale to
junior staff. 6 Even where there is no explicit provision for according greater
privileges and immunities to junior staff, it may also happen that
administrative discretion will be used in their favour. For example, if a
member of a foreign mission is detected shoplifting or driving while unfit
through drink, the executive, if it has discretion over the initiation of criminal
proceedings, may prefer, in order not to damage good bilateral relations with
the sending state, to send a private account of the matter to the ambassador
rather than institute criminal proceedings.
Private servants
17. I I.
148
17. 12.
The Vienna Convention also provides that jurisdiction over private servants
must be exercised 'in such a manner as not to interfere unduly with the
performance of the functions of the mission.' This means in practical terms that
the local police should not arrest the ambassador's cook and detain him on
criminal charges on a day when the ambassador is giving an important dinner
party. The authorities should try to fix dates for the hearing of civil claims or
criminal charges against private servants in such a way that the diplomatic
employer is not seri0usly inconvenienced. It must also be remembered that if
the private servant is living, as he will usually be, with his diplomatic employer,
proceedings cannot be begun against him by service of process, or a judgement
against him executed in such a way as to infringe the inviolability of the
residence of the diplomat.
The exclusion of nationals of the receiving state from privileges and immunities
was common, although not universal, under customary international law. The
writers on international law were conscious of the special problems posed if a
national of the receiving state was accepted in the capacity of a diplomatic
agent, but they were not consistent in the conclusions they drew. Adair writes
in this way of Wicquefort, whose famous book on L'Ambassadeur et ses Fonetions
appeared in 168 I:
'Wicquefort, however, had in his own person experienced the dangers to which
ambassadors might be exposed, for, though by birth a Dutchman, he had resided in
Holland as agent for the Duke of Liineburg and while there had been condemned to
perpetual imprisonment for communicating Dutch secrets of state; he therefore gives
very vigorous support to the view that an ambassador possesses full immunity no matter
what his nationality may be, if he has been accepted in such capacity by the receiving
state, for he represents the actual person of the sovereign who has sent him and who
cannot be subject to a foreign jurisdiction; in addition, any such subjection on the part of
an ambassador would so limit his freedom of action as to make it impossible for him to
perform the duties of his embassy. The only qualification he would admit is that, if the
ambassador has himselfviolated the law of nations, he cannot call upon it for protection;
this is vague, and even here no greater punishment can be inflicted than a demand for
the ambassador's recall. If one turns, however, to the earlier and smaller version of this
work, published in 1676, one finds that there Wicquefort speaks with a very different
voice: an ambassador should certainly be secure, but ifhe attempts the life of the prince,
conspires against the state, or even gives information to its enemies, he becomes a traitor
and this is incompatible with his position as an ambassador; therefore there is no longer
any necessity to respect his privileges or to observe those rules ofinternational law which
he himself has broken, though, Wicquefort adds, a prince will have more honour ifhe
sends back to his master an ambassador who has become a criminal than ifhe punishes
him himsel[ Five years later Wiquefort is seen upholding the ambassador's complete
immunity; it is surely not unkind to suspect that his own long imprisonment was
responsible for this drastic change in his views.' 7
Some states avoided the problem by refusing altogether to accept their own
nationals as diplomats representing another state, and of those who were
149
willing to accept them some gave them full privileges and immunities, some
gave them no privileges and immunities (or only immunity for official acts) and
some regulated the matter expressly at the time of receiving the diplomatic
agent, usually by reserving the right to withold immunities and privileges.
17.14.
17.15.
The main difficulty which arises in regard to the provisions of Article 38 results
from the exclusion of 'pennanent residents' as well as local nationals from virtually
all privileges and immunities. Whether a person is a national of the receiving
state is under general principles oflaw to be determined by the law ofthat state.
But the exclusion of 'permanent residents' was not common to many legal
systems before the Convention; it was added to the text of the Convention at a
very late stage and without much discussion, and neither the term nor a
procedure for resolving its application is defined in the Convention. The
United Kingdom Government found that the interpretation of the term was
difficult and gave rise to differences with individual missions. In the light of
several years' experience of administering the regime under the Convention,
and in an effort to avoid the arguments over particular cases which wasted time
and caused friction, the United Kingdom Government elaborated some
working criteria which they circulated on 27 January 1969 to all diplomatic
missions in London for their guidance. Subsequent practice has been based on
this circular. The guidance was as follows:
'When determining whether or not a particular member of your staff should be
regarded as a permanent resident of the United Kingdom the test should normally be
whether or not he would be in the United Kingdom but for the requirements of the
sending State. In applying this test I suggest that you should be guided by the following
considerations:
(i) the intention of the individual; a person should be regarded as permanently
resident in the United Kingdom unless he is going to return to his own country or
proceed to a third country as soon as his appointment in the United Kingdom ends.
It is suggested that points which may be relevant to this question include the links of
the individual with the State which he claims as his home, e.g. payment of taxes,
participation in social security schemes, ownership of immovable property,
150
CHAPTER 18
Two questions arise for the diplomatic agent who wishes to cross a third state on
his way to or from the state where he has been appointed. Does international
law give him an automatic right of passage, at least in time of peace, and is he
entitled to any special privileges and immunities while he is passing through?
Practice on both matters varied considerably at different periods.
18.2.
During the sixteenth and seventeenth centuries it was the custom for diplomats
who wished to cross foreign territory on the way to their post, and indeed for
private persons, to seek the assurance of a safe-conduct from the ruler of the
foreign territory concerned. Thus in 1572 when du Cros, French envoy to
Scotland, was arrested in England, at a time when passage of Frenchmen
through England to Scotland was forbidden, it was contended in defence ofthis
action that he should have asked for a passport. 1 States might provide in
general terms for the safe passage of their ambassadors in transit, as did Britain
and Russia in a Treaty of 1623, which protected: 'Ambassadors, Messengers or
Posts through the Countries and Dominions of the other unto and from
Germany, France, Spain, Denmarke, Sweathland and Netherland, or unto
and from Persia, Turkey and other Partes of the East, which are not in open
Hostilities with either of their renowned Majesties.... '2 Gradually the practice
of seeking safe-conducts fell into disuse but states until the nineteenth century
accepted that the ambassador had a right of innocent passage through third
states on his way to his post. It was clearly to the advantage ofall states that this
should be the position and legal restrictions on immigration or on the
movement ofaliens within a territory were still uncommon. Halleck sets out the
position thus:
'He has a right of innocent passage through the dominions of all states friendly to his
own country, and to the honours and protection which nations reciprocally owe to each
other's diplomatic agents, according to the dignity oftheir rank and official character. If
the state through which he proposes to pass has just reason to suspect his object to be
unfriendly, or to apprehend that he will abuse this right by inciting its people to
insurrection, furnishing intelligence to its enemies, or plotting against the safety of the
government, it may very properly, and without just offence, refuse such innocent
passage. But if an innocent passage is granted (and it is always presumed to be by a
friendly Power, unless specially denied) he is entitled to respect and protection, and any
insult or injury to him is regarded as an insult or injury both to the state which sends him
and that to which he is sent.' 3
18.3.
During the late nineteenth and early twentieth centuries, however, controls on
152
travel became general and states became more restrictive, requiring foreign
diplomats to obtain a prior visa if such a visa was necessary for an ordinary
traveller ofthe same nationality. The reaction of the French Government to the
transit of M. Soule indicates this new attitude.
In 1854 the French Government refused to M. Soule, United States minister at
Madrid (of French origin, but naturalised in the United States, and said to have been 'of
a fiery temperament') permission to stay in France on his way to his post, on the ground
that his antecedents had attracted the attention of the authorities charged with public
order; they had no objection to his merely passing through, but as he had not been
authorised to represent his adopted country in his native land, he was for the French
Government merely a private person, and as such subject to the ordinary law. 4
18-4.
18.5.
153
due to them in accordance with international law, even if the states to which they belong
maintain no diplomatic relations with Italy. It is understood that Italy undertakes
always and in every case to leave free the correspondence from all states, including
belligerents, to the Holy See, and vice versa. ... In virtue of the sovereignty recognised,
and without prej udice to the provisions ofArticle 19 below, diplomatists of the Supreme
Pontiff shall enjoy in Italian territory, even in time of war, the treatment due to
diplomatists and carriers of despatches of other foreign governments, in accordance
with the rules of international law.
Article 19. - Diplomatic officers and envoys of the Holy See, diplomatic officers and
envoys of foreign governments accredifed to the Holy See ... possessing passports issued
by their state of origin and vises by Papal representatives abroad, shall be admitted
without further formality to the City across Italian territory. The same shall apply to the
above-mentioned persons, who, being furnished with regular Papal passports, are
proceeding abroad from the Vatican City.'
18.6.
18.7.
154
18.g.
Third states are also obliged not to 'hinder the passage' through their territories
of members of the administrative and technical staff of a mission and members
of their families proceeding to or from their posts. This does not mean that these
persons have any immunity, but merely that the third state must not
inconvenience or delay them without good cause. Service staff and private
servants receive no special treatment in third states. Diplomatic agents who are
nationals or permanent residents either of the receiving state or of the third
state itself are not specifically excluded from the terms of Article 40; but it is of
course very unlikely that such persons would be passing through or in the
territory of the third state en route for their post or returning to their own
countries.
18. I o.
I.
Under customary international law a state was entitled to arrest the diplomatic
agent of a hostile state during war with that state and treat him as a prisoner of
war. 12 As Rivier said: 'If the two States are at war, the agent may in default ofa
safe-conduct be made prisoner. '13 If he travelled on board a neutral ship, the
vessel might be seized and brought in for adjudication. 14
In 1744 France declared war against the King of England, Elector of Hanover, and
Hanover was consequently enemy territory for France. Marshal Belleisle, then at
Frankfort as French ambassador to the Emperor Charles VII (Elector of Bavaria), was
ordered to proceed to Berlin as minister. In crossing Hanover, he and his brother were
made prisoners of war. Orders were sent from London to remove them to England,
where they were retained for several months, until released conditionally. IS
In 1917 Herr von Heinrichs, former secretary to the German Embassy at Madrid,
while on his way to Mexico to take up another appointment, was made prisoner on
landing in Cuba, then at war with Germany.16
In 1918 Captain von Krohn, naval attache to the German Embassy at Madrid, was,
at the request of the Spanish Government granted safe-conduct by the French
Government, to permit of his return to Germany through France, a prescribed route
being enjoined. 17
18.12.
155
A diplomatic agent is of course obliged to respect the laws ofthe transit state, as
of any other third state, just as he is obliged to respect those of the receiving
state, and his immunity in transit implies no exemption from these laws.
CHAPTER 19
Special missions
19. I.
The earliest diplomatic missions in Asia and Africa as well as in Europe were
generally temporary diplomatic missions despatched for a particular purpose.
It was only in the sixteenth century that the major states in Europe began
to maintain permanent diplomatic representation abroad, and it is clear
from diplomatic writings of this period that permanent and temporary
ambassadors coexisted in a capital without its being thought that the
distinction in the duration of their missions implied any difference in their
status. But gradually permanent diplomatic missions became the norm.
Spec-ial missions were on the whole used only at a very high level and for
ceremonial occasions. A royal wedding or funeral, or the signing of a peace
treaty would be the occasion for a gathering of heads of state or their very
distinguished representatives. Routine business on the other hand was almost
always conducted through permanent ambassadors.
19.2.
19.3.
The status of these various representatives was, however, far from clear. Heads
of state enjoyed extensive privileges and immunities as foreign sovereigns.
Some states regarded other temporary representatives as entitled to the same
privileges and immunities as permanent diplomatic agents. It was generally
accepted that they enjoyed certain immunities, such as immunity for their
official acts and inviolability for their official papers and documents, by virtue
Special missions
157
158
19.6 .
Special missions
19.7.
Special missions
159
conditions and limit the extent to which it assumes the obligations ofa receiving
state.
19.8 .
The privileges and immunities accorded to special missions and their members,
as has been pointed out, also follow closely those accorded to permanent
diplomatic missions by the Vienna Convention. A few differences, however,
some deriving from the different nature of special missions and some from
reconsideration of the terms of the Vienna Convention, may be pointed out.
Article 2 I makes special provision for visiting heads of state, by requiring that
when a head of state leads a special mission he 'shall enjoy in the receiving
State or in a third State the facilities, privileges and immunities accorded by
international law toHeads of State on an official visit.' 2 The same Article also
provides that 'The Head of the Government, the Minister of Foreign Affairs
and other persons of high rank, when they take part in a special mission of the
sending State, shall enjoy in the receiving State, or in a third State, in addition
to what is granted by the present Convention, the facilities, privileges and
immunities accorded by international law. ' However, it cannot be regarded as
at all certain what, ifany, additional privileges and immunities are required by
international law to be given to visiting heads of government or ministers.
Some states may equate a head of government with a head of state, but
ministers have never been regarded under customary law as entitled to any
sovereign immunities.
19.9.
Article 24 limits tax exemption for special mission premises by the words 'To
the extent compatible with the nature and duration ofthe functions performed
by the special mission' - this allows the receiving state to claim that a mission
which overstays its welcome loses its tax exemption, and relieves it from an
obligation to grant exemption or repay minimal amounts of tax. Article 25
gives inviolability to the premises of special missions, but has regard to the fact
that such premises will often be in hotels by providing a power to assume
consent of the head of mission to entry where there is a fire or other disaster and
he cannot be contacted - a power which does not exist in the case of permanent
embassies. To the inviolability of archives set out in Article 26 it is added, to
assist the receiving state, that these archives should, when necessary, bear
visible external marks of identification. The right of freedom of movement,
under Article 27, is limited to what is 'necessary for the performance of the
functions of the special mission.' Rights of free communication similar to those
of permanent missions are given under Article 28, but it is added that 'Where
practicable, the special mission shall use the means of communication,
including the bag and the courier, of the permanent diplomatic mission of the
sending State.'
19.10.
160
Special missions
state to the same extent as under the Vienna Convention, but members of
families receive privileges and immunities on the Vienna scale only if they
accompany members of the special mission. The problem ofdetermining who is
a 'member ofthe family forming part of the household' thus does not arise in the
case of special missions.
19. I I.
The same obligations as under the Vienna Convention are laid on transit states
in regard to members of special missions. But in this case the obligations arise
only where the transit state has been informed in advance, either in the visa
application or by notification, of the transit of the persons concerned as
members of the special mission, members of their families or couriers, and has
raised no objection to it. This emphasises that, as in the case of members of
diplomatic missions, there is no right of passage through a third state and that
the third state must consent to the transit before being required to accord any
special privileges to members of special missions.
CHAPTER
20
The diplomatic body (corps diplomatique) comprises the heads and the
diplomatic staff of all the missions accredited to a government. At most capitals
a list of the diplomatic body, compiled from lists furnished by each mission, is
published and distributed to missions from time to time. This list generally
includes the wives and adult daughters of the members of the missions.
20.2.
20.3
The functions of the doyen and of his office (the decanat) range from questions of
ceremony and protocol to those concerning the day-to-day relations between
the diplomatic body and the host government. He is the mouthpiece of his
colleagues on public occasions. He is the defender of the privileges and
immunities of the diplomatic body from injuries or encroachments on the part
of the government to which they are accredited. The government may find it
convenient to use the doyen as a channel by which to convey to his colleagues
information or guidance of an informal character. To employ his good offices
for formal communications which could properly be circulated by the Protocol
Department of the Ministry of Foreign Affairs is an imposition which a head of
mission will be inclined to resist, especially if his own staff and resources are
limited and the diplomatic corps is numerous. Whatever records belong to the
body as a whole are in his keeping. But he is in no case entitled to write or speak
on behalf of his colleagues without having previously consulted them and
obtained their approval of the step which it is proposed to take, and of the
162
If the host government feel that members of the diplomatic corps are abusing
their immunities in day-to-day matters in such ways as frequent disregard of
traffic or parking regulations, the doyen's help is often sought. He will normally
circulate a note to all his colleagues asking them to assist the authorities in such
a matter and to request the members of their staffs to do likewise. The same
procedure is applied when in a country which restricts imports, diplomatic
agents are found to be circumventing import restrictions by duty-free import
for resale against local currency.
20.5.
On any matter with political implications a head of mission will not take part
with his colleagues in a joint representation to the government of the country
without special authorisation from home, or accept a summons from the doyen
to attend a meeting for the discussion of international matters unless he has
received instructions to take joint action. In practice a joint demarche by an
entire diplomatic corps on a matter with political content is most unlikely. The
possibility of joint demarches of such a kind by a number of heads of mission
representing a particular political grouping is not, however, to be excluded. If
the doyen happened to be a member of that grouping, he would be wise to take
into consideration his position as doyen when deciding whether to take part or
not.
20.6.
20.7.
20.8.
Wives of diplomatists enjoy the same privileges, honours, precedence and title
as their husbands. The wife of the senior diplomatic representative of the
highest category is called the doyenne. Her functions will vary widely from one
post to another. It may be the local custom for her to assume the responsibility
of presenting the wives of newly arrived heads of mission to the wife of the head
of state. But this is by no means invariably so. In general it may be said that her
functions complement those of her husband. A wise and accomplished doyenne
may be able to give a valuable lead in social matters, which will bring credit to
the diplomatic body as a whole; but this will be done by example rather than by
precept, since she has no explicit authority. In countries where the doyen is
unmarried (as is the case in Catholic countries where the papal nuncio is
accepted as the doyen ex officio) the functions of doyenne may fall to the wife ofthe
163
next senior head of mission. At some posts wives of the senior staff of a mission
headed by a bachelor may, if need arises, look to the doyenne for help with
presentations which would otherwise have been effected by the wife of their
own ambassador. Where the doyenne is herself an ambassador, however, it
would probably be too much to expect her to fulfil the double task of
ambassador and ambassador's wife. On the other hand, if an ambassador is
accompanied by her husband, the fact that the roles cannot be neatly reversed
has created many a perplexing situation. For the purpose of initial calls on
colleagues, a female head of mission may go accompanied by her husband and
will then be received by her diplomatic opposite number and his wife.
Although at some capitals it has been ruled that the husband of a female
ambassador should be granted the courtesy of precedence immediately after
ministers, or after the deputy head of his wife's mission, it may on the whole
prove more convenient to place him at dinner parties and other formal
occasions where this is possible, among distinguished unofficial guests, such as
professors or artists. But there will always be predicaments covered by no
generally accepted rule; and these must be solved by forethought and
ingenuity.
20.10.
20. I
As soon as a new ambassador has been admitted to the exercise of his full
functions he informs his colleagues by means of a letter addressed personally to
every other head of mission representing a country with which his own
entertains normal relations. According to the form traditionally used for these
I.
164
20. I 3.
20. I 4.
20. I 5.
165
allusions to these claims in both legislative chambers, combined with a new law
of recruiting, excited a hope in the minds of certain hotheads that the claims
would be referred to the arbitrament of arms. 'Payez les etrangers du fer' was a
common expression used in certain circles. 7 In 1823 Canning forbade the
British Ambassador in Paris to be present at any rejoicing given in celebrat.ion
of the French successes in the Peninsula. 8
20.16.
20.17
If the ceremony is one at which the diplomatic body has to take what may be
termed an active part, its members, ranged according to the order of
precedence, are placed on the right of the centre or post of honour occupied by
the most eminent person present, i.e. usually the head of the state. If, however,
the part taken by the diplomatic body is merely passive, i.e. that ofspectators, a
special place is set apart for it, such as a tribune in a church, boxes at a theatre for
a gala performance, etc. 9
As regards seats, the place of honour and consequently the precedence attributed to
the persons forming the company: At a four-cornered table of which all four sides are
occupied, or at a round or oval table, the first place is usually considered to be facing the
entrance, and the last place is that nearest to it. Counting from the first place, the order
of seats is from right to left, and so on. At a mixed party the hostess sits, tlormally,
opposite the host, and as she is, at least at a formal party, the last to leave the drawingroom with her partner, who is of course the principal male guest, it is more convenient
for her to sit at the side, or end, of the table nearest the entrance.
The order of precedence at mixed parties normally begins for the ladies on the right
of the host, and for the gentlemen on the right of the hostess, and proceeds thus from
opposite ends towards the middle of the table, male guests alternating with female. If
there are special circumstances which seem to require deviation from these accepted
principles, it may be well to take advice from the Protocol Department and also to
ensure discreetly that the guests understand (and are prepared to accept) the reason.
In standing, sitting or walking, the place of honour is at the right, i.e. when the
person entitled thereto stands or walks at the right. Precedence is when the person
entitled goes a step before the other, who is at his left side, as in ascending a flight ofstairs
or entering a room.
In a lateral arrangement, i.e. when the persons present stand side by side in a straight
line, the outside place on the right, or the central place, is the first according to
circumstances. When there are only two persons, the right hand is the first (00 ); if
the right hand the second, the
there are three, the middle place is the first
left hand the third. If the number is four, the furthest to the right is the first place, the
next is the second, the left ofthe latter is the third,and then thefourth
)10 Of
five persons, the first is in the middle, immediately to the right is the second, to the left is
the third, further to the right is the fourth, and the fifth is the furthest to the left
If six or more, the same principles are observed, according as the
number is odd or even.
(000),
(0000
(00000).
166
Between the representatives of states, one of which does not accord the other
diplomatic recognition, there can be no official communication; and calling is
excluded. If diplomatic relations are absent merely because a new state has not
yet been formally recognised or because relations have not yet been established,
a communication may be accepted, but it should not be acknowledged without
authorisation from home, since acknowledgement could be taken as evidence
of recognition. But when the absence of relations is due to a deliberate decision
not to establish them, a communication will be returned without acknowledgement. There will usually be a 'protecting power'll which has assumed the
responsibility of looking after the interests of one state in the other, and it is the
representative of this protecting power who will normally be used as
intermediary. When absence of relations is due to a deliberate breach, a
communication may be accepted without acknowledgement, or returned at
the discretion of the head ofmission to whom it was delivered. As the ret urn ofa
communication is a form of rebuff, a head of mission will be well advised to
make sure he has his government's approval before taking this action.
Protecting powers will generally be careful not to lend their good offices for a
transaction unless they have been given reason to believe that it will be
acceptable. The establishment of diplomatic relations where they have not
existed, or their resumption after interruption, may be brought about by the
intervention of a friendly power, either in a third state, or at the United
Nations, or by direct communication between the two governments concerned.
Les Ministres des princes qui sont en guerre & qui se trouvent clans une meme Cour ne se
visitent point tant que la guerre dure, mais ils se font des civilitez reciproques en lieu tiers
lorsqu'ils se rencontrent, la guerre ne detruit point le regles de l'honnetete ny celles de la
generosite, die donne meme souvent occasion de les pratiquer avec plus de gloire pour le
Ministre qui les met en usage, & pour le Prince qui les approuve. 12
20.20.
20.21.
Flags
167
Rome during hostilities between France and Spain, who, learning of a plot to
kill the Spanish Ambassador, warned the latter, and earned much praise for
this action. The story recalls the incident ofFox communicating to Talleyrand,
in 1806, information regarding a scheme for the assassination of Napoleon,
disclosed to him by a Frenchman. 13
National days
20.22.
On the date appointed for the celebration of its National Day, it is customary
for the head of a diplomatic mission to receive the congratulations of
representatives of the host government and of the heads of all the other
diplomatic missions accredited in the capital. The usual practice is for the
celebrating head of mission to give a reception at which these felicitations can
be offered. If space is insufficient in the premises of the mission, the reception is
sometimes given at a hotel. But many heads ofmission prefer to receive either at
home or in the building of the chancery. Occasionally this means giving as
many as three receptions in the day - one for members of the government and
distinguished citizens of the host country, one for the diplomatic body and a
third for the community of the celebrating country's nationals resident in the
capital. What arrangements are made will depend on local circumstances. It is
inevitable that considerations of expense and of prestige will also be taken into
account. For members of the diplomatic body who are invited, attendance is an
official obligation. If the absence of a head of mission is unavoidable (and no
social pretext will be accepted as an excuse), he will ensure that he is
represented by the most senior member of his staff. In any other case ofabsence,
an explanation, coupled with expressions of regret, should be sent without
delay. At most missions a visitors' book is open for signatures and is kept in the
entrance hall, or vestibule. It is normally signed by all those who call on the
head of mission, whether on business, or for the purpose ofexpressing thanks, or
congratulations, or condolences, or simply as a routine courtesy when arriving
in the country or leaving it. To call and 'sign the book' is an accepted form of
politeness (like the leaving of cards) on occasions when the caller has no
intention of taking up the time of the head of mission by asking to see him
personally. Heads of mission will generally make a point of signing their
colleague's book on his National Day, even if the book is not made available for
signature by all the guests at the reception. The gesture ofsignature provides, as
it were, a confirmation of goodwill and a sufficient expression of thanks for the
invitation on an occasion when individual letters on the following day are not
expected.
Flags
20.23.
168
of the sending state on the premises ofthe mission, including the residence ofthe
head of mission, and on his means of transport.'
20.24.
The flag flown by British diplomatic missions abroad is the Union Flag, with
the Royal Arms in the centre on a white shield, surrounded by a green garland,
and is flown either over the house of the head of mission, or the chancery, or
both, and at the appropriate place in the boat or other vessel, if the ambassador
is afloat. In countries where the custom is accepted, a flag is also flown on the
ambassador's car at any time when the ambassador is in it. An acting head of
mission, or a charge d'affaires will usually fly it only when he is making an
official visit. It is as well to observe the locally accepted practice in these
matters.
20.25.
Flags may be flown at any time at the discretion ofthe head ofmission. But over
the chancery the flag is expected to be flown (according to the rules which most
national services follow) at least on the National Day and principle patriotic
festivals of the sending state (for Britain on the birthdays ofthe Sovereign, actual
and official, and of members of the Royal Family, and on other days on which
flags are flown on public buildings in London); on the anniversary of the
accession, or the appointment, or the birthday, of the head ofstate to whom the
mission is accredited; and on the receiving state's National Day. It will be flown
at half-mast on the occasion of the death of the head of the sending state (for
Britain deaths of members of the Royal Family); or of the death of the sovereign
or head of state to whom the mission is accredited.
20.26.
20.27.
20.28.
169
170
In former days when a diplomatist left the court at which he had represented his
sovereign, either on a permanent or temporary mission, he usually received a
decoration. A gold snuff-box set with brilliants was a gift often presented.
20.3 I.
Queen Elizabeth I objected to her subjects wearing foreign insignia of knighthood. Two
young Englishmen, Nicolas Clifford and Antony Shirley, had been admitted by Henri
IV to the Order of St Michael as a reward for their services. On their return to England
they appeared at court displaying the insignia of the order, which provoked the Queen's
anger, because the French king, without consulting her, had allowed these her subjects
to take the oath to him on their admittance, and she threw them into prison.
Nevertheless, she was too merciful to put the law in force against them, seeing that they
were ignorant youths, and also because she entertained a special goodwill towards the
King of France, who had conferred so great an honour upon them. She therefore
ordered that they should return the insignia and take care to have their names removed
from the register of the Order. Henri IV is said to have wittily replied: 'I wish the Queen
would do me a corresponding favour in return. I should like her to appoint to the Order
of King Arthur's Round Table any aspiring Frenchman whom she might see in
England.' That Order, so celebrated in fable, disappeared long ago, just as that of St
Michael, in consequence of the disturbed state of affairs, had sunk so low, that a French
nobleman said: 'The chain of St Michael, which was formerly a distinction for very
noble personages, is now a collar for every kind of animal. '
In 1596, when the title of Count of the Holy Roman Empire was conferred on
Thomas Arundel of Wardour, with remainder to all his male and female descendants, it
was argued in the House of Lords that an action for theft would lie against anyone who
branded with his mark the sheep ofanother, and an action of deceit agamst anyone who
by scattering food before the sheep of another enticed them into his own flocks. 15 Queen
20.32.
171
Elizabeth is reported by Camden to have said, in connection with this case: 'There is a
close bond ofaffection between princes and their subjects. As it is not proper for a modest
woman to cast her eyes on any other man than her husband, so neither ought subjects to
look at any other prince than the one whom God has given them. I would not have my
sheep branded with any other mark than my own, or follow the whistle of a strange
shepherd. ' 16
During the lifetime of Queen Victoria diplomatic servants of the crown were not
allowed to accept foreign decorations, except in the case of special complimentary
missions to foreign sovereigns. In all such cases the Queen's permission to accept and
wear had to be obtained; the intention to confer had to be notified to the Secretary of
State through the British Minister accredited at the court of the foreign sovereign or
through his minister accredited at the court of Her Majesty. By an order of 18g8
permission could only be obtained by the chief of a complimentary mission from Her
Majesty, or by a military or naval attache on the termination of his appointment. 17 In
Igl I the regulation was relaxed in so far that private permission might be given to
accept and wear on certain specified occasions, in a case where the decoration was more
or less of a complimentary character. The rules of 1914 stated that permission in such
cases would only be given on exceptional occasions, when in the public interest it was
deemed expedient that acceptance should not be declined.
20.33
The rules since 1930, however, have been more stringent, and members of the
British Foreign Service cannot ordinarily expect to be allowed to accept and
wear the decorations of foreign orders. The only exceptions which the rules
allow are for the grant of unrestricted permission in the case of decorations
conferred for distinguished services in the saving of life; and for the grant of
restricted permission, enabling the decorations to be worn only on certain
specified occasions, in the case of foreign honours conferred upon (I) British
ambassadors or ministers and their staffs, when the sovereign pays a state visit
to the country to which they are accredited; (2) members of special missions
when the sovereign is represented at a foreign coronation, wedding, funeral or
similar occasion; or (3) any diplomatic representative when specially
accredited to represent Her Majesty on such occasions (but not on the members
of his staff). Permission is not normally granted to British ambassadors or
ministers abroad to accept decorations when leaving their posts on final
retirement.
On various occasions when a foreign sovereign has made a general
distribution among members of the local diplomatic corps of medals
commemorating his coronation or jubilee or similar personal event, members
of Her Majesty's Embassy, in order to avoid any appearance of discourtesy,
have been given restricted permission to wear them.
It is not customary in England to offer a decoration to a foreign ambassador
or other diplomatic agent on quitting his post.
20.34.
The Constitution of the United States prohibits persons holding any office of
profit or trust under the United States Government from accepting without
the consent of Congress, any presents, emoluments, office or title of any kind
whatever from any king, prince or foreign state. This prohibition has been
modified to allow the acceptance of small gifts of minimal value. Under the
Foreign Gifts and Decorations Act of 1966, as amended in 1967, Congress
consen ts to:
172
The Foreign Affairs Manual further defines a gift of 'minimal value' as one
which has a retail value not in excess of $50 in the United States.
2035
At the Congress of Vienna it was agreed that the plenipotentiaries should receive
neither presents nor decorations, but each of the Powers concerned gave presents to
Gentz, the principal secretary, and to others who had helped in drawing up the
protocols. On the proposal ofthe British it was decided to present Gentz with a snuff-box
and 800 gold ducats, to four of his assistants snuff-boxes and 500 ducats each, and to two
more each 100 ducats, or 3000 ducats in all. This sum would come to over 1200. When
the ratifications were exchanged of the treaty of peace of 20 July 1814, between France
and Spain, presents, consisting of a gold snuff-box with a portrait of Louis XVIII, worth
15,000 francs, were provided for Labrador, the Spanish plenipotentiary, and a similar
one, with the portrait of Ferdinand VII, for Talleyrand, besides 1000 (90,000 reals) for
the clerks of the French and Spanish ministries for foreign affairs. On 8, 9 and 10 June
1817, a treaty was signed between Spain and the five Great Powers with respect to the
succession of Parma on the death of the ex-Empress Marie-Louise, followed by the
accession of Spain to the treaties of Vienna and Paris (of 1815). On this occasion the
Spanish Minister of State received five gold snuff-boxes with portraits of the respective
sovereigns, and Fermin Ntifiez, the ambassador in London, received the same number.
To the clerks of the Spanish Ministry of State a sum of 450,000 reals (10,000 ducats) was
given for the treaty of 10 June (Parma succession). Besides these gifts, various
decorations of the order of Carlos III were distributed. As the English Foreign Office
neither gave nor received decorations, a sum of 1000 was given by the British embassy
to the secretaries of the Spanish embassy, a corresponding amount being assigned to the
secretaries of the British embassy. Presents to the amount of 90,000 reals (1000) were
also given to the chanceries of the five Great Powers. Care was taken that the
decorations given on both sides to the chancery clerks should be ofcorresponding class, a
matter always considered to be of the highest importance even in modern days, when
such trinkets are exchanged. 19 At the end of 1817 the amounts of the gifts in money
bestowed by the contracting parties on the occasion of the conclusion of treaties, of royal
marriages, of congresses and other conventions, and since then instead ofjewellers' gold
and silver work, mutually fixed in money, were divided among the officials ofthe state
chancery at Vienna. The sum accumulated up to that date was estimated at 28,000
ducats. 20
Schmelzing states that Metternich, in November 1818, received the Grand Cross of
the Netherlands Lion from the hands of the King of Holland. This was the twenty-fifth
order with which His Highness was decorated.
20.3 6 .
In earlier times presents in money to members of the Foreign Office were usually made
on the occasion of the exchange of ratifications of an important treaty. Thus, in 17 86,
in connection with the commercial treaty between Great Britain and France,
500 guineas were given by the French Government, of which six-tenths went to the
under-secretaries, one-tenth to the chief clerk, and three-tenths to the junior clerks.
173
20.37.
In 1834 a rule was made in the United Kingdom prohibiting all persons in HM
employment, in diplomatic, consular, naval or military capacities, from receiving from
a foreign Government any presents, whatever might be the occasion on which presents
might be offered. This rule has occasionally been relaxed by special permission of the
Secretary of State.
CHAPTER
21
Termination of a
diplomatic mission
21. I.
21.3.
When an ambassador is about to leave his post for any of these reasons, he
normally asks for a farewell audience with the head of state, at which he may
present his Letters of Recall if he has received them. The request for this
audience is made by means ofa Note to the ministry offoreign affairs enclosing a
copy of the Letters of Recall. The audience with the head of state is usually a
private one. If, as is not infrequently the case, the head of mission has to leave
before the Letters of Recall have arrived, he will none the less seek a farewell
audience, on the understanding that his Letters will be presented by his
successor. The new head of mission will then present the Letters when he
presents his own credentials.
21.4.
21.5.
When about to leave his post, whether temporarily or finally, the head of
mission should write to the appropriate official in the ministry offoreign affairs
(in London, the Vice-Marshal of the Diplomatic Corps) giving in advance the
175
exact date of his departure and nominating a charge d'affaires ad interim. This
letter has to be signed by the head of mission personally. The appointment ofa
charge d'affaires ad interim cannot be made after the departure of the head of
mission except by the Ministry of Foreign Affairs of the sending state.
21.6.
On the death of the head of a diplomatic mission, it will be necessary for the
sending state to notify the receiving state of the name of a charge d'affaires ad
interim, if one has not been previously appointed. If the death takes place in
circumstances where ordinarily an inquest would be necessary, the authorities
in the receiving state should be made aware that it has been general practice 3
not to hold an inquest where a diplomatic agent or other member of a mission
dies in office. In some cases this practice may be based on the continuing
immunity from jurisdiction and inviolability accorded by Article 39 of the
Vienna Convention on Diplomatic Relations. The sending state may ofcourse
waive immunity and allow an inquest to take place. In the case of the death ofa
member of a mission while resident at his post, the members of his family
continue to enjoy their privileges and immunities until the expiry of a
reasonable period allowed to them to leave the country.4 Article 39(4) of the
Vienna ConventionS obliges the receiving state to permit the withdrawal ofhis
movable property, with the exception of any property acquired in the country
the export ofwhich was prohibited at the time ofhis death. Estate, succession or
inheritance duty may not be levied on movable property whose presence in the
receiving state was due solely to the presence of the deceased as a member of a
diplomatic mission.
21.7.
If the mission terminates by the death of the ambassador at his post, the
receiving state may wish to mark the occasion by some ceremonial mark of
respect to him in view of his representative character. If it is wished that he
should be buried in the country where he was accredited, the receiving state
may offer a public funeral in his honour. The nature ofsuch a ceremony would
be for agreement between the sending and receiving state as well as the
ambassador's own family. Alternatively a memorial service or a similar
ceremony of honour and respect to the deceased ambassador might be
arranged. If it is desired that the body of the ambassador should be returned for
burial in his own country, the receiving state may offer to arrange the
conveyance of the body on a warship or state aircraft to his own country, or a
state procession from the embassy to mark the first stage of ajourney by sea or
air. On the death of the Netherlands Ambassador in London in 1952 a
ceremonial procession was arranged in his honour from the Embassy in
Portman Square to Knightsbridge Barracks, and the coffin was escorted by two
companies of the Scots Guards, a division of the Life Guards and the King's
Troop, Royal Horse Artillery, who fired a salute of nineteen guns. At
Knightsbridge Barracks there was a Guard of Honour from the Grenadier
Guards and the coffin was transferred from a gun carriage to a motor hearse for
conveyance to the airport. In 1958 full military honours were also accorded
when the body of the Iranian Ambassador was taken from London. The coffin
was borne from the Embassy to the Duke of York's Headquarters on a gun
carriage and was escorted by detachments of the Life Guards, the 1st Battalion,
Grenadier Guards, and the 2nd Battalion, Coldstream Guards, with the
regimental band of the Grenadier Guards and the pipes and drums of the 2nd
76
Battalion, Scots Guards. The coffin was taken by motor hearse to Northolt
Airport and was conveyed by Royal Air Force Transport Command to
Teheran. At the funeral in Teheran the Queen was represented by Her
Ambassador in Iran. 6 In 1976, on the murder of Senor Fernando Rodriguez
Olivia, the Peruvian Ambassador to Jamaica, his body was flown to Lima,
accompanied by the Jamaican Ambassador to Peru' and members of the
Jamaican Defence Force. A requiem Mass for the Ambassador was said at a
church in Kingston and was attended by the Prime Minister ofJamaica and
members of his Cabinet. 7
21.8.
In place of the farewell audience it is usual practice that the head ofstate of the
receiving state should convey his sympathy to the acting head of mission and
the family of the deceased ambassador and should be represented at any
funeral or memorial service. Practice in London on the death en poste of a head
of mission is that the Marshal of the Diplomatic Corps calls on the acting head
of mission to convey The Queen's sympathy. The Queen is represented,
normally by the Marshal of the Diplomatic Corps, at the funeral or memorial
service in the United Kingdom and by Her Ambassador at the funeral or
memorial service in the home country of the deceased ambassador. The
Marshal of the Diplomatic Corps attends, in his personal capacity, the
departure of the body from London.
21.9.
21.10.
Following the disappearance of the head of state, either of the sending state or
of the receiving state, it is normally quickly apparent whether or not diplomatic
appointments will be renewed as a matter of course. Only very exceptionally
(for example when the Royal Government of National Union of Cambodia
replaced the Government of the Khmer Republic in May 1975)8 is there an
interval before it becomes evident whether diplomatic appointments are being
renewed.
21. I I.
177
not provided for in the constitution lead to the emergence of a new head of
state, it is general practice that ambassadors who remain at their posts are
provided with fresh credentials. Ambassadors' order of precedence is
unaffected when this occurs. On the other hand, the replacement in either
state of a president or other elected or appointed head of state, whether on
death, resignation or expiry of his term of office, has never been regarded
as making fresh credentials necessary. It is sometimes difficult to determine
whether the constitutional change which has occurred is of a nature to make
fresh credentials necessary, and the modern tendency is, in cases of doubt,
neither to seek nor to issue fresh credentials. This is particularly the case when for
political reasons it is desired not to draw attention to the change which has
occurred. 9
21.12.
Where the change in the head ofstate ofa sending or receiving state takes place
as a result of violent revolution or armed conflict, it is more usual that
diplomatic appointments are not confirmed. A new government will wish to
replace former ambassadors by appointing new ones sympathetic to their own
views. If the sending state has merged with or been absorbed by another state it
will no longer have the right to send or receive ambassadors at all. Where the
government changes in the receiving state, other states may withdraw their
ambassadors as a mark of disapproval of the new regime, or they may not
recognise the new state or government which has assumed control of the
capital. The new government itself may not wish to remain in diplomatic
relations with all the states which formerly sent ambassadors to it, or may wish
fresh appointments to be made simply in order to indicate its distaste for
persons who did business with its predecessor. Io
21.13.
1 78
21.14.
179
term in the sixteenth, seventeenth and eighteenth centuries), request for recall
of the diplomat, dismissal (strictly an inappropriate term, since it is for the
sending state, not the receiving state, to 'dismiss' a diplomat from its service),
refusal to receive or to continue to receive the diplomat, and 'sending the
diplomat his passports.' This last expression derives from the former practice of
diplomats depositing their passports with the ministry of foreign affairs. The
expression, along with the practice, is now obsolete. There remains, however, a
tendency to use the somewhat more polite expression 'request the recall of a
diplomat' rather than the blunter 'declare persona non grata.' 'P.n.g.' and 'to
p.n.g.' are the standard colloquial terms. Whatever terminology is employed,
the characteristic feature of the persona non grata procedure is that it is the
diplomat personally who has offended the receiving government. Where the
displeasure is not with the diplomat personally but the policies or conduct of
the sending state, the correct course is to break diplomatic relations, or in a less
serious case recall the ambassador for consultations. Nor should a declaration
or declarations of persona non grata be used to reduce the number of diplomatic
staff in the mission of the sending state. The correct procedure for that purpose
is now set out in Article I I of the Vienna Convention on Diplomatic Relations.
21. I
6.
In 1584 one Francis Throkmorton was arrested in England, in consequence ofa letter he
had written to Mary Queen of Scots, which was intercepted, and the investigation
showed that Don Bernardino de Mendoza, the Spanish Ambassador, was party to a plot
which aimed at the deposition of Queen Elizabeth I. Camden ll relates that while
Throkmorton was under examination 'Don Bernardino de Mendoza, the Spaniard's
Embassadour in England, secretly crossed the seas into France, in a great rage and
fury, as if hee had been thrust out of England with breach of the privilege of an
Embassadour, whereas he himselfe being a man of a violent and turbulent spirit,
abusing the sacred privilege of an Embassage to the committing of treason, was
commanded to depart the land, whereas by the ancient severity, he was to be prosecuted
(as many thought) with fire and sword. For he had his hand in those lewd practises with
Throkmorton and others for bringing in of forreiners into England, and deposing the
Queen.... But yet lest the Spaniard should thinke, that not Mendoza's crimes were
punished, but the privileges of his Embassadour violated, William Waad Clerke of the
Councell, was sent into Spaine, to inform the Spaniard plainly how ill he had performed
the office of his Embassie; and withal to signifie (lest the Queene by sending him away
might seeme to renounce the ancient amity betwixt both kingdomes) that all offices of
kindnesses should be shewed, if he would send any other that were desirous to preserve
amity, so as the same kindnesses might in like sort be shewed to her Embassadour in
Spaine.'
Waad, however, was refused an audience of the Spanish King and 'returned
home unheard.'
This early example of 'expulsion' of an offending ambassador illustrates the
practice that became general: the offence was a personal, and indeed a serious
criminal one, and the receiving sovereign tried to make it clear that her quarrel
was with the ambassador personally and not with the sending sovereign.
21.17.
By the nineteenth century the practice applied by most states was that the
receiving state notified the sending state that its representative was no longer
acceptable and asked for his recall. The sending state immediately recalled the
offending diplomat, having indeed no effective alternative, since a diplomat
180
who is not acceptable cannot perform his proper functions. Reasons might be
given, but the sending State was not entitled to insist on them. In the most
celebrated cases the facts of course tended to become known.
In 1792 ME. C. Genest was appointed French Minister to the United States. On his
arrival, and before presenting his credentials, he began to fit out privateers to prey on
British commerce, in violation of United States neutrality. French consuls, sitting as
courts of admiralty, condemned prizes, some of them being captured in United
States waters. When remonstrated with, he expressed contempt for the opinions of
the President and questioned his authority. Mr Morris, the United States
representative in Paris, was instructed to ask for Genest's recall, which was
immediately granted. 12 The French Republican Government took advantage of the
occasion to ask for the withdrawal ofMr Morris, who had taken part in the effort to
effect the escape of Louis XVI from Paris. This was at once conceded.
2. In 1804 the Spanish Government asked for the recall ofMr C. Pinckney, the United
States minister at Madrid. The reason assigned was a threatening note which he had
addressed to the Spanish Minister of State. This Note contained an intimation that
he would inform American consuls of the critical state of the relations between the
two countries, and direct them to notify American citizens to be ready to withdraw
with their property. Mr Pinckney was instructed to come away on leave ofabsence. 13
3. In 180g Mr E. J. Jackson, British minister at Washington, in a correspondence with
the Department ofState, respecting the repudiation by the British Government ofan
arrangement entered into by his predecessor, Mr Erskine, for the settlement of the
Chesapeake case and the withdrawal of the Orders in Council, intimated that when
the agreement was concluded the United States Government were fully aware that
Mr Erskine had exceeded his instructions. The Secretary of State had already
protested against this insinuation, and, on its being renewed, wrote to Mr Jackson
that no further communication would be received from him. Shortly afterwards the
United States minister in London was instructed to ask for MrJ ackson's recall. This
was consented to by the Secretary of State for Foreign Affairs, who, however,
maintained that Mr Jackson did not appear to have committed any international
offence against the United States Government. 14
4. In 1846 Mr J ewett, the United States Charge d' Affaires at Lima, became involved in
a dispute with the Peruvian Minister for Foreign Affairs, in the course of which he
characterised a decree which had been officially communicated to him as 'a
compound of legal and moral deformities presenting to the vision no commendable
lineament, but only gross and perverse obliquities.' He also omitted to address the
minister as 'Excellency' or 'Honourable' in written communications. He was
recalled in consequence of a reiterated request from the Peruvian Government. In
the despatch to Mr Jewett, the Secretary of State laid it down that 'if diplomatic
agents render themselves so unacceptable as to produce a request for their recall from
the government to which they are accredited, the instances must be rare indeed in
which such a request ought not to be granted. To refuse it would be to defeat the very
purpose for which they are sent abroad, that ofcultivating friendly relations between
independent nations. Perhaps no circumstances would justify such a refusal unless
the national honour were involved.' 15
5. In 1871 Mr Fish, the United States Secretary of State, informed the United States
minister at St Petersburg that the conduct of M. Catacazy, Russian minister at
Washington, both officially and personally, had for some time past been such as
'materially to impair his usefulness to his own government and to render intercourse
with him, for either business or social purpose, highly disagreeable'; that in these
circumstances the President was of opinion that the interests of both countries
would be promoted if the head of the Russian legation were changed; and it was
hoped that an intimation to this effect would be sufficient. The President eventuall'
I.
181
consented to tolerate M. Catacazy until after the intended visit of the Grand
Duke Alexis to the United States. On this occasion the Secretary of State reaffirmed the United States view that an official statement that a diplomatic agent
had ceased to be persona grata 'is sufficient for the purpose ofobtaining his recall.' The
declaration of the authorised representative of the Power to which an offending
minister is accredited is all that can properly be asked, and all that a self-respecting
Power can give. Finally, M. Catacazy wrote to the Secretary of State that he had
received orders to sail for Russia immediately after the end of the Grand Duke's tour.
Mr Fish replied that this was understood to be a practical compliance with the
request for his recall. 16
6. In 1898 there was published in a New York paper a translation of a private letter
from Senor Dupuy de Lome, the Spanish minister at Washington, to a Spanish
journalist friend in Cuba. The letter had been abstracted from the mail at Havana.
The letter described President McKi;lley as 'weak and a bidder for the admiration of
the crowd, besides being a would-be politician who tries to leave open a door behind
himself while keeping on good terms with the jingoes of his party,' and it suggested
that it would be a good thing for Spain 'to take up, even ifonly for effect, the question
of commercial relations.' The United States minister at Madrid was instructed to ask
for his immediate recall, on the ground that the letter contained 'expressions
concerning the President of the United States of such a character as to end the
minister's utility as a medium for frank and sincere intercourse between this country
and Spain.' The Spanish Government expressed their regrets for the incident,
making it clear 'that they did not share, and rather, on the contrary, disauthorised,
the criticisms tending to offend or censure the chief of a friendly state, although such
criticisms had been written within the field of personal friendship, and had reached
publicity by artful and criminal means.' They appointed a new minister to the
United States. I?
7. In 1927 the French Government addressed a protest to the Soviet Government
against the action of M. Rakovsky, their ambassador in Paris, in signing a public
declaration, which, in the event of any future war against the Soviet Union, incited
the workers of capitalist countries to work for the defeat of their governments, and
their soldiers to join the ranks of the Red Army. This action, the French Government
asserted, was a flagrant violation of engagements undertaken by the Soviet
Government at the time of their recognition in 1924. The Soviet Government
repudiated the action of M. Rakovsky, but the latter afterwards made a
communication to the Press with the evident intention of aligning particular
interests against the policy of the French Government in regard to the settlement of
Russian debts. The French Government thereupon deemed it impossible, in the
interests of the two governments and of the success of their negotiations, that M.
Rakovsky should continue as ambassador at Paris, and they demanded his
replacement. The Soviet Government then appointed a successor. 18
21.18.
In 1804 the MarquesdeCasa Yrujo, Spanish minister to the United States, proposed
to the editor of an American newspaper to oppose certain measures and views ofthe
182
government, and advocate those of Spain. The government censured his action, as
constituting a violation of an Act of Congress known as the 'Logan Statute. 119 He
defended his conduct in a Note, which he caused to be published in the newspapers.
On the ground of this attempt to tamper with the Press his recall was asked for,
through the United States minister at Madrid. The Spanish Government replied
that he had asked for leave of absence to return home at a season convenient for the
voyage, and the President acquiesced in this procedure; but when after some time he
had not departed, it was made clear to him that he was expected to leave. He replied
that he intended to remain in Washington as long as it might suit the interests of his
sovereign and his own convenience, and he had a further protest published in the
Press. The United States Government protested in Madrid, but the Spanish
Government defended the conduct of their minister. Yrujo's official relations with
the United States ceased and another Spanish diplomat was received as charge
d'affaires. 20
2. In 1852 the United States Government asked for the recall of Senor Marcoleta, the
Nicaraguan minister, which was refused. The Secretary of State then informed
Senor Marcoleta that the request for his recall had been renewed and that
meanwhile no communication could be received from him in his official capacity.
The charge against him was that he had communicated to the Press certain proposals
in regard to an inter-oceanic canal which had been shown to him unofficially and in
confidence. He not only tried to frustrate the negotiation, but also boasted of his
influence with certain senators and threatened to use it. The Secretary ofState wrote
to the United States minister at Nicaragua that a request for recall 'can never be
refused between governments that desire to preserve amicable relations with each
other; for a minister whose recall has been asked loses, by that fact alone, all capacity
for usefulness. If previously unacceptable, he must become doubly so by being
retained in office in opposition to a distinct wish expressed for his recall.' The
Nicaraguan minister was, however, not recalled but later presented fresh credentials
to a new President of the United States and remained in Washington as minister
until 1856.21
3. In 1905 M. Taigny, French minister to Venezuela, protested to the Venezuelan
Government at their action in summarily closing under decree the offices of the
French cable company at Caracas and elsewhere. In the view of the French
Government this constituted a violation of the rights of the company. The
Venezuelan Government denied the right of the French Government to take the
matter up through the diplomatic channel, claiming that diplomatic representations
could be made only if there had been a denial ofjustice, which was not the case. A
dispute followed, during which the Venezuelan Government expressed the hope that
the French Government would send a representative with whom more agreeable
relations could be entertained. M. Taigny remained in charge, but was not invited
on the occasion of the New Year official reception of the diplomatic corps by the
President, and it became apparent that only on his recall would the Venezuelan
Government resume official relations. The French Government announced his
recall, leaving their interests in charge of the United States minister. On M. Taigny
going on board s.s. Martinique to ascertain the instructions of his Government he was
refused permission to return on shore and thus virtually expelled from the country.
The diplomatic body protested against this act as contrary to diplomatic immunity,
but the Venezuelan Government maintained that immunity had lapsed with his
actual recall. In consequence the French Government on 18January 1906, notified
the Venezuelan charge d'affaires that his mission was terminated and he should
leave French territory the same day. He was escorted to the frontier that evening.
Diplomatic relations between the two countries were suspended for several years. 22
21.19.
A few governments, however, of which the British Government was the most
183
184
21.20.
The position taken by the United States and by the majority of other states is
now embodied in the Vienna Convention on Diplomatic Relations, where
Article 9 states that:
, I.
'2.
The receiving State may at any time and without having to explain its decision,
notify the sending State that the head of the mission or any member of the
diplomatic staffofthe mission is persona non grata or that any other member of the staff
of the mission is not acceptable. In any such case, the sending State shall, as
appropriate, either recall the person concerned or terminate his functions with the
mission. A person may be declared non grata or not acceptable before arriving in the
territory of the receiving State.
If the sending State refuses or fails within a reasonable period to carry out its
obligations under paragraph I of this Article, the receiving State may refuse to
recognize the person concerned as a member of the mission.'
21.2 I.
The Vienna Convention rules are intended to ensure that where a diplomat
becomes personally unacceptable to the receiving state, the matter is handled
with as little personal embarrassment to him as possible and in the way least
likely to lead to protracted and unprofitable dispute between sending and
receiving state. In the majority ofcases the reasons for the recall are known both
to the sending and the receiving state, but they are not discussed in diplomatic
correspondence or in public. The diplomat may have against him evidence ofa
serious criminal offence, such as espionage or fraud, or he may have taken some
action which is resented by the receiving state as interference in its internal
affairs, or he may simply have given offence by his personal manner, attitudes
or conduct. Ifboth states agree, the matter may be handled so quietly that it does
not become public knowledge at all that the diplomat concerned has left before
the expiry of his normal tour of duty.
21.22.
The Vienna Convention makes clear that a diplomat may be declared persona
non grata before arrival and in that event he need not be granted a visa or
admitted on arrival. There is no agrement procedure for diplomats other than
the head of mission (and in some states for defence attaches) and so this
possibility may be of considerable importance if the receiving state finds that it
has been notified of the imminent arrival of someone newly appointed to a
diplomatic mission and it is aware that serious criminal charges have been
made against him or suspects that he is a spy.
21.23.
The rules, however, do not and cannot lead to the avoidance of dispute in all
cases between sending and receiving states. Probably the most dramatic case of
declaration of persona non grata occurred in 1971 when the British Government
requested the withdrawal of 105 Soviet Government officials, many of whom
were on the diplomatic staff of the Soviet Union's Embassy in London.
On the instructions of Sir Alec Douglas-Home, Foreign Secretary, Mr
Ippolitov, the Soviet Charge d'Affaires, was asked to call on Sir Denis
Green hill, Permanent Under-Secretary. He was handed an aide-memoire
which contained the Government's request for the withdrawal of the officials.
The Foreign Office aide-memoire stated:
'When Mr Gromyko visited London in October, 1970, he spoke of the desirability of
improving Anglo-Soviet relations. It is the sincere wish ofHer Majesty's Government to
bring about such an improvement. There is however one matter of importance which
185
has repeatedly caused friction in Anglo-Soviet relations. This is the scale of intelligencegathering activities by Soviet officials in this country.
'This subject was raised with Mr Gromyko by Sir Alec Douglas-Home, first in
conversation in London and subsequently in a letter dated December 3, 1970, written at
Mr Gromyko's suggestion, and in a further letter dated August 4, 1971.
These letters have not been answered, nor even acknowledged.
'Meanwhile inadmissible activities by Soviet officials in Britain have continued.
During the last twelve months a number of Soviet officials have been required to leave
the country after being detected in such activities. During the same period it has been
decided not to issue visas to a number of officials nominated to Soviet establishments in
the United Kingdom on account of their previous activities.
'The staffs of the Soviet Embassy and the Soviet Trade Delegation, which form the
two largest elements in the Soviet official establishment in Britain, far outnumber the
British officials working in the Soviet Union.
'Her Majesty's Government have tolerated the growth of these establishments. They
have not sought to bargain increases in the Soviet establishments in this country against
increases in the British establishment in the USSR; nor have they sought to establish any
fixed relationship between the Soviet commercial establishment in this country and the
growth ofBritish exports to the Soviet Union. Evidence has however been accumulating
that this tolerance has been systematically abused.
'The abuse is a matter of serious concern to her Majesty's Government as a direct
threat to the security of this country. Moreover the recurring need to request the
withdrawal of Soviet officials from this country, or to refuse visas to certain officials
selected for service in this country, imposes strains on Anglo-Soviet relations. So do
unjustified acts of Soviet retaliation such as the recent expulsion of Mr Miller, Mr
Nicholson and Mr Jackson.
'The Soviet Government can hardly fail to be conscious of the contradiction between
their advocacy of a conference on European security and the scale of the operations
against the security of this country which Soviet officials and agents controlled by them
have conducted.
'Her Majesty's Government would like to see this contradiction resolved before the
preparation of a conference on European Security begins.
'The Soviet Embassy is therefore requested to arrange for the persons named on the
attached list, all of whom have been concerned in intelligence activities, to leave Britain
within two weeks from the date of this aide-memoire. Henceforth:
(a) The numbers ofofficials in (i) the Soviet Embassy (ii) the Soviet trade delegation and
(iii) all other Soviet organisations in Great Britain will not be permitted to rise above
the levels at which they will stand after the withdrawal of the persons named in the
attached list;
(b) If a Soviet official is required to leave the country as a result of his having been
detected in intelligence activities, the permitted level in that category will be
reduced by one.
The Soviet Embassy is also asked to take note that the Soviet citizens named on the
second list attached, who are believed to have left the country but still hold valid reentry
visas, will not be permitted to return to Britain, on account of their participation in
intelligence activities. '27
The officials concerned were recalled within the time limit set and the affair led
to a prolonged coolness in the relations between Britain and the Soviet Union.
This was to be expected, and the incident is a classic case of a situation in
which a Foreign Secretary is obliged to present to his Government a choice
between two disagreeable courses, either to continue to tolerate a practice
186
Two further recent cases of the application of the persona non grata procedure are
descri bed below:
I.
2.
In June 1976 the Libyan Ambassador to Egypt was declared persona non grata after
being detected by security authorities distributing pamphlets hostile to the regime of
President Sadat of Egypt. According to the Cairo newspapers an Egyptian reported
to the state security department that a Libyan (who proved on investigation to be the
Ambassador) asked him to take part in a clandestine organisation against the
Egyptian government. 28
The release in October 1976 of evidence of widespread smuggling and illegal sales of
drugs, alcohol and cigarettes by North Korean diplomats in Scandinavia led to a
number of declarations of persona non grata. The first country to act was Denmark,
which gave the North Korean Ambassador and his entire diplomatic stafTsix days to
leave on the grounds that they had turned their embassy into a front for the illegal
import and sale of drugs, liquor and cigarettes. This followed the seizure of 385
pounds of hashish, estimated to be worth about 200,000. The North Korean
Ambassador initially denied all the charges. A few days later the Government of
Finland disclosed that Finland had been used as a transit station for drugs destined
for other Scandinavian countries, and declared persona non grata the North Korean
charge d'affaires and three other diplomats. The charge d'affaires at first refused to go
and demanded that the Finnish Government should review 'the illegal decision.'
The following day the North Korean Ambassador to Norway and Sweden was
declared persona non grata, together with four of his diplomatic staff. On this occasion
however the diplomats concerned were recalled and returned home immediately.
Mrs Karin S6der, the Swedish Foreign Minister, said that her Government were
'deeply disturbed by the fact that officials at a foreign embassy had so seriously
misused their diplomatic immunity in committing such obvious criminal activity. '29
CHAPTER
22
Breach of diplomatic
relations
22. I.
Non-relationship
22.2.
22.4.
22.5
In 1895 the Italian Government published a protocol signed at Caracas some time
188
22.6.
Since the Second World War there have been a number of instances of the
formal breaking off of diplomatic relations without the intention to proceed to
war. When Dr Mossedegh, the Prime Minister of Iran, broke offrelations with
the United Kingdom during the crisis of 1951, the breaking of contact was a
real one, and resumption could not be achieved until December 1952.
Similarly a literal interpretation of a breach in relations occurred in 1956 when
on 6 November, precisely one day before the cease-fire which brought the
Suez incident to an end, Saudi Arabia broke off diplomatic relations with
Britain and France. The Saudi Government found it impracticable immediately to reverse this decision once taken, and relations were not reopened unti19
September 1962 in the case of France and 16 June in that of Britain.
22.7
The conduct objected to is most usually felt to be directly injurious to the state
breaking relations. But relations may also be broken as a protest against the
policy of the other state on a matter of general international concern. In 1965
for example seven African states broke relations with the United Kingdom
because of resentment over the latter's handling of Rhodesia's unilateral and
illegal declaration of independence.
22.8.
It would not be the intention of the government breaking relations that this step
should lead on to war, though it would be intended as something more than a
'gesture' - perhaps a diplomatic 'weapon.' On the other hand it could hardly
be described as an effective weapon, even in the diplomatic sense, in that there
would normally be no assurance that it would achieve the effect intended, or
indeed have any important effect at all.
22.9.
It should be noted also that the breaking off of bilateral relations cannot be
as total as it could have been before the existence of international organisations.
Even if the states are not on mutual speaking terms, it is probable that there will
be on both sides what is called in United States State Department language
'passive acceptance of representation in multilateral bodies.' Such coexistence
modifies by implication the completeness of the breach ofdiplomatic relations.
It also offers opportunity for representatives ofthe two sides to discuss privately,
e.g. at New York during a session of the United Nations General Assembly,
presumably with the acquiescence of their respective governments, whether
any steps towards a renewal of relations could be taken. Such contacts can also
take place between representatives in a third state, though this method is on the
whole more likely to attract premature attention and thus endanger success.
189
22.10.
At the beginning of the so-called 'Six Day War' ofJune 1967 between certain
Arab states and Israel, an alarm was transmitted by the Government ofJordan to
President Gamel Abdel Nasser of Egypt that American and British aircraft
were on their way to cross Israel and attack Jordan. The rumour turned out to
be wholly false, but the Egyptian leadership had by then committed themselves
publicly to its acceptance. As a result, diplomatic relations between Egypt and
the United States (and Britain) were broken off by Egypt. This did not mean a
state of war between the United States and Egypt. But it did mean that, as in
the case of war, the conduct of business between the two Governments was
officially taken over by third parties. The handling of American interests in
Egypt was taken over by the Spanish Embassy in Cairo, while the Indian
Embassy assumed the same function on behalf of Egypt in Washington.
22. I I.
22. I 2.
Since 1965 the United Kingdom have also made it their normal practice on a
breach of diplomatic relations to seek to establish a 'British Interests Section' in
the Embassy of a protecting power. For example, when the Government of
Iceland broke off diplomatic relations with the United Kingdom in February
1976, a British Interests Section of the French Embassy in Reykjavik was
established, consisting of all the members of the former United Kingdom
Mission other than the Ambassador, and was instructed so far as possible to
continue normal business.
22.13
190
that Seminar:
'The course of closing a mission should be resorted to very sparingly. Churchill's
dictum "jaw jaw is better than war war" has a basic truth in this respect. The very time
when a country should not break ofT diplomatic relations is when sharp differences of
view arise or there is a danger of actual conflict. That is the time when the diplomat is
most needed, since misunderstanding of the opposing viewpoint can be fatal in near
war, or actual war (including civil war) conditions. There is always a certain visceral
satisfaction to be gained from the gesture of breaking ofT relations, but the satisfaction is
often short-sighted and short-lived. An example ofa different type of approach is seen in
the Indian decision to maintain their Embassy in Peking throughout the confrontation
of the early I g6os'. 3
22. I 4.
It is fair to recall at this point that in recent years there have been several formal
breaches of relations within the Commonwealth and that the United Kingdom
broke off diplomatic relations in August 1976 with the Government of
President Idi Amin in Uganda. The British argued that its purpose in so doing
was not so much to rebuke or influence President Amin as to confirm that the
President had rendered impossible the proper functioning of the United
Kingdom High Commission in Kampala. 4
22.15.
22.16.
When requests for withdrawal of the head of a mission are made, the
government affected may seek to negotiate; but there is unlikely to be much
profit in this course once the matter has become public knowledge. In any case
the head of a mission who attempted to stay after being requested to go would
find himself immediately in a humiliating and, indeed, impossible position.
Nor, usually, is there any great advantage in retaliating in kind, unless by some
extraordinary chance the 'opposite number' of the head of mission expelled
happens to be on the verge of being declared persona non grata himself. The
British Government did not retaliate in the case described in the preceding
paragraph. In such a situation the only room for negotiation or gestures of
personal goodwill lies in such matters as the degree of courtesy to be shown to
191
the expelled envoy in terms, for instance, of the time allowed to prepare for
departure.
22.17.
In the century before 1914 diplomacy was very largely the diplomacy ofGreat
Powers acting either directly or on behalf of client states. This meant that a
breach of diplomatic relations was a very serious matter which might and
sometimes did portend war. The years after the Second World War brought a
great increase in the number of small independent states, some members of
alliances or blocs, some declaring themselves 'non-aligned' and others simply
remaining non-aligned in fact. It might have been thought that a world of this
kind would have been even more dangerous than the pre- 19 14 world. That it
was not so was at least partly because of the realisation, that as soon as atomic
capability began to spread, a local conflict might be the first step towards
drawing the greater Powers not, this time, into a conventional war, but into a
nuclear war. The fear ofsuch a development did not prevent local war, e.g. in the
Middle East, in South-East Asia and in the South Asian subcontinent. But the
fear that a war could turn nuclear had some inhibiting effect on any impulse to
slide or rush into war. In such circumstances a breach of diplomatic
relationship or a demand for the withdrawal of a particular head of mission
could prove a sufficient outlet for patriotic emotion. But even if a breach of
relations has, on such an occasion a 'safety-valve' effect, it is still permissible to
ask in the spirit of the Singapore report quoted above, to what extent gestures
intended to give satisfaction to domestic public opinion should be allowed to
take the place of normal diplomatic practice.
CHAPTER 23
Attacks on embassies
23.1.
23.2.
What precisely had happened was not at once known publicly, but the news
soon got round that the monarchy had been overthrown. Since there were in
the city large numbers of people who disliked the monarchy, partly for local
reasons and partly encouraged by broadcasts from Cairo radio, crowds soon
came out in the streets and large numbers of people gathered at the gates ofthe
British Embassy, the Royal Family having had strong British connections. At
about 8 a.m. a shot was fired, which turned out to have been due to clumsy
handling of a weapon by an Iraqi soldier who thereby injured himself in the
foot. But such was the tension in the city that the crowd found it only too easy to
believe that the shot had been fired from the Embassy Residence. The crowd
broke through the small party of soldiers, burst in to the Residence and burned
to the ground the fine building and its attractive and valuable contents.
23.3.
The Ambassador, Sir Michael Wright, and his household had retired to the
Chancery building by the riverside. In the confusion of these happenings,
the Comptroller, Lieut.-Colonel Ludovic Graham, was killed by a stray
bullet.
23.4
The next day the Ambassador, without waiting for instructions, called on
General Qasim, who had by then fully established his authority, and requested
a formal assurance of the safety of British subjects and their property, and a
convoy in case an evacuation of British subjects should be needed. He added a
formal protest over the failure to protect Embassy lives and property. General
Qasim expressed regret and added that a convoy would be provided but would
not be needed. On 16 July the Head of Protocol in the Ministry for Foreign
Affairs called on Sir Michael Wright to express regret at what had happened.
235
On 19July, having received instructions (the delay being partly accounted for
by several days of imperfect communications with London) Sir Michael called
Indonesia
193
on the Iraq Minister for Foreign Affairs, repeated the requests already
described, and added that the British Government held the present
Administration responsible. In reply the Minister questioned whether there
was any established government which could be held responsible.
23.6 .
23.7
This case has been described in some detail because it contained many features
which are bound to characterise such a situation - internal tensions in the
country connected directly with external political relations, physical danger
and loss, an immediate protest and request for future protection, followed by a
protest on instructions and eventually, after due negotiation, the payment of
compensation. Such a protest by the head ofthe diplomatic mission concerned,
in anticipation of instructions, is politically and diplomatically important.
Failure to make such an immediate protest would suggest, in the home country
of the embassy attacked, timidity or negligence by the head of mission; to the
government of the country where the event occurred, it might imply doubt as
to the facts, and this could damage the success of a delayed demarche, however
official. The situation is obviously a difficult one, since the government of the
country where the incident occurred will have mixed feelings - a desire to make
the best of its own case and embarrassment that such an incident should have
occurred in its territory, whatever the cause.
23.8.
An event of this kind contains elements of personal tragedy and ofthreat to the
stability of political and diplomatic relations. But the element ofaccident in the
shot which precipitated the destruction ofa British Embassy Residence and the
manifest regret of the new Government that matters should have gone so far
provided a basis both for surmounting immediate political shock and for
agreeing on terms of compensation. But two other cases which involved the
British Government in the 1960s were more complex in their diplomatic
implications.
Indonesia
23.9.
1 94
A ttacks on embassies
23.10.
23.11.
23.12.
For the next two years the compensation question did not move. The
Indonesian Government's policy continued to be the acquisition of all foreign
investment in the country. Then political fate intervened. In September 1965 a
political coup organised by the Indonesian Communist Party failed. A new
Government took over, headed by General Suharto, with Mr Adam Malik as
Foreign Minister. Military 'confrontation' with Malaysia and Britain ceased,
and in June 1966 Mr Malik reached a full agreement with Malaysia which was
signed in August. Attention could then be given to the liquidation of other
previous differences between the Indonesian and British Governments. A
compensation agreement satisfactory to both sides covering the damage to the
British Embassy in 1963 was signed on 1 December 1966.
China
23.13.
China
195
events in the British Crown Colony of Hong Kong. Severe restrictions were
imposed on the movements of British diplomats in Peking, which made it
impossible for them to carry out the purposes for which they were accredited.
The Chinese authorities also from time to time withheld exit permits for
diplomatic personnel. The mood in China seemed to vary from week to week
and the harassment of British officials led to restrictions on Chinese movements
in Britain and, in August, to demonstrations by British crowds outside the
Chinese Mission in London. The diplomacy ofthe period moreover was highly
unorthodox; the Chinese Charge d' Affaires 1 in London, for instance, refusing
to accept four written protests delivered to him. 2
23.14.
23. 1 5.
The first actual attack on British representation in China was not directed at
the British Mission in Peking, but consisted of the invasion by a crowd on 16
May of the large British Consulate-General compound in Shanghai. The
Consul-General and his family were subjected to indignities; furniture was
wrecked and a portrait of The Queen destroyed. This resulted in an immediate
representation to the Chinese Charge d' AfTaires in London, in which the
British Government reserved the right to claim compensation for the damage
done to British property. The Chinese Government on 22 May announced its
decision to annul the 1954 agreement which provided for the British Office in
Shanghai (which was not regarded by the Chinese as a Consulate). The British
Charge d' AfTaires protested at the unilateral abrogation of the agreement and
in a message to the Chinese Foreign Minister on the same day the Foreign
Secretary expressed the view that the agreement could not be unilaterally
annulled and expressed willingness to accept negotiations on the question; he
added that he had already decided to withdraw the British representative from
Shanghai because of the treatment to which the representative and his family
had been subjected, but that this action would not constitute acceptance of or
acquiescence in China's unilateral decision to abrogate the agreement.
Although the message was returned by the Office of the Charge d' AfTaires in
London and a copy delivered to the Foreign Ministry in Peking was
subsequently returned to the British Mission, it was clear that its contents had
been noted. The Counsellor of the Office of the British Charge d' AfTaires in
Peking was summoned to the Foreign Ministry on 9 September to receive
notification of an order by the Shanghai local authorities requisitioning the
premises of the British Office in Shanghai. The Counsellor duly protested and
reserved the right to seek compensation. Subsequently (19 September 1967) the
Chinese Charge d' AfTaires in London was summoned to the Foreign Office and
given a Note formally setting out the British Government's position in
protesting at the requisition and reserving all their rights over the premises as
well as the right to claim compensation.
1 96
A ttacks on embassies
23.16.
23.17.
23.18.
23. I 9.
23.20.
Little information has been made available about the negotiations for
compensation, but the Chinese Government in March 197 I made clear their
General
197
General
23.21.
23.22.
Attacks of the kind described above imply an aroused public, possibly aroused
by the receiving government, as well as a degree of political instability. In a
stable situation, these incidents should not arise; if they are at all likely to do so,
police protection should, in accordance with international law and practice, be
available and sufficient. (The legal position governing the rights of the
diplomatic mission and the responsibilities of the receiving government, are
described in 140 1 5')
23.23.
23. 2 4.
Whatever doubts there may be about facts and causes, it is reasonable for the
'victim' government to take the position that the de facto local government
(whether the established one or a new one) should accept on behalf of the
receiving state responsibility for any failure in the duty to protect diplomatic
premises, and also responsibility for paying compensation.
23. 2 5.
23.26.
Experience points to the great value in such cases ofgood working relationships
between the missions of countries friendly to each other in the wider context.
These would naturally include fellow-members of political organisations
pursuing similar policies, such as the member countries of NATO, the
198
Attacks on embassies
CHAPTER 24
Kidnapping of diplomats
24. I.
24.2.
Nor, when the technique was new, could the security authorities ofthe country
of the crime be specially blamed. Kidnappings of this kind were always
carefully planned and the security authorities could hardly be expected to
protect every single senior diplomat, whether at home or during his or her
comings and goings.
24.3.
200
Kidnapping of diplomats
the kidnappers passed and on 5 April the body of Count von Spreti was found
with a bullet-hole in the temple.
24-4.
Not all such episodes ended in tragedy. On 4 September 1968, the United
States Ambassador in Brazil was forced from his official car and a note was left
in it describing him as the 'symbol of exploitation,' and demanding the
publication of a manifesto and the release of fifteen political prisoners. The
Brazilian Government agreed to the demands, and Mr Elbrick, on his release
three days after the kidnapping, said that his captors were 'young, very
determined, intelligent fanatics' who would have acted on their warning that
he would be 'executed' if their demands had not been met.
24-5.
Other such events include the kidnapping and murder in Canada in 1970 ofMr
Pierre Laporte, Minister of Labour of the Province of Quebec, the kidnapping
in the same year ofMrJames Cross, British Trade Commissioner in Montreal,
the kidnapping in 1971 ofMr (later Sir) GeofTreyJackson, British Ambassador
in Uruguay, the kidnapping and murder of the Israel Consul-General in
Istanbul by Turkish terrorists in May 1971 and the appalling sequel to
the occupation in March 1973 of the Saudi-Arabian Embassy in Khartoum
by the Arab 'Black September group', during which the American
Ambassador, Mr Noel, his Counsellor, Mr Moore and the Belgian Charge
d' AfTaires, Mr Eid, were murdered. Over twenty-five such kidnappings or
attempted kidnappings happened in the years 1968-73. I
24-6.
Reference has been made in the preface to this book to the political background
of the time which made such events thinkable. The basic purpose ofkidnapping
and holding as hostages people of diplomatic status could only be to cause the
sending state to exercise pressure on the receiving state, which is responsible for
his protection, to 'purchase' his release. The purchase price can be very precise,
for instance the release by the receiving state of certain people held in prison people probably of no direct interest to the 'victim' state at all. Or the purpose
could be political but less precise, as in the kidnapping of the British
Ambassador to Uruguay, where the motive appears to have been a determined
desire by the Tupamaros organisation, a young revolutionary group, to
establish themselves as the recognised second power within the State. The
remarkable self-control displayed by the Ambassador throughout his eight
months of captivity seems somewhat to have disconcerted his captors, despite
their success in keeping his whereabouts concealed. But it is well to recall that a
kidnapping operation could also be the expression of something more
fundamental still, a violation of law in pursuit of a doctrinal 'war of nerves,'
described by the Brazilian terrorist Carlos Marighela in the following words:
'The object of the war of nerves is to misinform, spreading lies among the
authorities - thus creating an air of nervousness, discredit, insecurity,
uncertainty and concern on the part of the Government.'
24- 7.
Kidnapping of diplomats
20 I
diplomatic kidnapping takes place to intensify its search for kidnappers and
kidnapped and to assure better protection in the future. But any 'negotiation'
has to be between the territorial government and the kidnappers. If the
diplomat's sending state embarked on its own direct negotiations with the
kidnappers, this could be resented by the territorial government as an
intervention in an affair which was its responsibility.
24.8.
24.9
The Federal German Government for a number of years took the opposite
view. But having paid very heavily for the release in March 1975 ofthe eminent
Berlin political leader, Herr Peter Lorenz, they seemed to have changed their
minds by the time of the violent attack on the German Embassy in Stockholm
on 24 April 1975, when they decided that the moment had come to fight it out. 3
24. I o.
24. I
First, it has to be accepted that security precautions during such a period have
to be reviewed and tightened up both in countries maintaining diplomatic and
consular missions and in countries receiving them. There can be no
mathematical rule of thumb about this. For instance, some receiving countries
are more vulnerable to terrorist attack than others if they hold in prison persons
who can be described credibly, whether correctly or misleadingly, as political
prisoners. Experience is at best an uncertain guide in any attempt to forecast
the occurrence of a kidnapping, or its timing; though reasonably good
intelligence about the strength, activeness and mutual relationships ofterrorist
groups will obviously be helpful. In this context, a state with an effectively
I.
202
Kidnapping of diplomats
24.12.
Although it remains the duty of the receiving power to protect the lives of
members of diplomatic missions, security forces are often - owing to the
considerable rise in terrorist and criminal activity in recent years - too tightly
stretched to give the diplomatic community the protection that the threat
warrants. The receiving power, in these circumstances, can reasonably eXPect
all missions to take measures to protect themselves. Some missions sometimes
employ armed security guards, but a number of countries, including the
United Kingdom, strongly object to arms being carried officially within their
territory by anyone other than their own security forces. Where possible,
therefore, armed intervention against terrorists should be left to the receiving
power, which should of course have the means to intervene quickly and
effectively against armed terrorists attacking diplomatic missions.
24.13.
20 3
24.16.
CHAPTER 25
This use of the word 'diplomacy,' even in inverted commas, compels the
question whether wireless or radio is a branch ofdiplomacy as understood in the
present book, or whether it is simply one more international activity with which
diplomacy has to deal. Can a passing of international messages not to a
particular destination but to anyone who can tune in on the particular
wavelength be in any way termed 'diplomacy'? Even if not, has diplomacy any
special function in its relationships with broadcasting?
25.2.
Thus a ruthless pattern had been set for state control of the content not only
of radio but of the whole of publication and broadcasting.
25.3.
There had indeed been fear in Europe already that the content of radio
broadcasts across international frontiers might disturb the political relations
between neighbouring countries, and a pact was concluded in 193 I, two years
before Hitler became Chancellor, between Germany and Poland, in which
part of the text reads:
'The two Contracting Parties undertake in the future to do everything in their power
to ensure that matter - whether political, religious, economic, intellectual or artisticbroadcast from their stations shall not compromise in any way the spirit of cooperation
205
25.4.
The pact went on to note exceptions, best endeavours, etc. and the drafters
seem to have foreseen in some degree the difficulties of enforcement. But the
advent of totalitarian regimes in Germany and Italy, the permanently polemic
tone of Soviet broadcasting, the growth from 1939 ofwartime political warfare,
followed by cold warfare, suggested that any international control oreven selfcontrol of content was not likely to be agreed or established.
25.5
This judgement is expressed very cautiously, and rightly so, since the new
nationalism in countries nearing national independence was bound to be
reflected in radio broadcasting. But it is true to say that in the broadcasting of
some relatively mature middle-power countries, a conscious effort was made to
give both the home public and listeners abroad a balanced view of events,
internal and international: two outstanding examples are Canada and, as it
developed its democratic independence, the Federal Republic of Germany.
This development gave international prestige to particular broadcasting
systems. An indirect tribute to the maintenance of this standard was paid
nearly thirty years later in a speech delivered in the revolutionary days ofJuly
1975 by Dr Mario Soares, the future Socialist Prime Minister of Portugal who
said:
'We all know what people do in the evenings these days. They listen to the
Portuguese service of the BBC.'5
But on the whole, with the persistence of ideological argument and selfconscious nationalism, the voice of moderation and attempted objectivity was
bound to be the voice of the minority. The power of an international
broadcasting station did not necessarily reflect the importance of the country
using it, and a general exploration of the spectrum picked up easily the shrill,
denunciatory voice of Albania, the confident admonitions of the People's
Republic of China and the strong national 'colour' of the Voice of America
which was bound to qualify its conscientious efforts at objectivity.
25.6.
206
was not real, he spoke frequently and dramatically ofArab unity and freedom.
The effect has been described thus:
'In 1955 ... what began to irritate other Arab leaders was appealing directly to their
own population, literally bypassing the governments in winning popular acclaim. It no
doubt annoyed President Chamoun of Lebanon and King Hussein of Jordan to see
Nasser's photograph more widely displayed than their own. But by early 1956, no Arab
leader dared to speak out against Nasser. Nasser was so popular that to oppose him
meant political suicide.'6
25.7
25. 8 .
25.9.
Predictably, nothing explicit was obtained. But an article was agreed which
stated in part:
'The participating states note the expansion of information broadcasts by radio and
express the hope for the continuation of the process, so as to meet the interest of mutual
understanding among peoples and the aims set forth by this Conference.,8
25.10.
25.1 I.
However, given the control of broadcasting by government in many countriesor if not the control, the strong influence of government over broadcasting diplomacy has to follow what is said in the same way that it still has to follow and
207
assess what is published in the press. To the diplomat, moreover, the medium of
broadcasting may present the further complication that what is transmitted
locally on short waves may have to be monitored in his home country because
he is unable to receive it at his post. Precisely in such a case, his government will
need an estimate of the intention of such a broadcast, having regard to its
timing, and this can only be obtained with full knowledge of the local situation
if the text is sent back to him in the capital from which it originated.
25. I 2.
There is great variety from country to country in the kinds of control exercised
over broadcasting. It may be wholly state controlled or, having a degree of
independence, may be subject to the influence of pressure groups within the
state, or of financial interests. A particular station may be the voice of a party,
or of a leading personality. The audiences to which broadcasts are aimed will
be various, both within and outside the country oforigin. Listenership is always
difficult to estimate, but the diplomatic observer on the spot should be able to
give to his government a fair assessment of the popularity and credibility, in
local terms, of a station or of an individual broadcaster. Such reporting and
advice is part of a diplomat's work as interpreter of the local scene and adviser
of his government. In countries where access to broadcasting systems is
permitted, the normal work of embassy press and public relations officers will
be to offer information, briefing or illustrative material with the object of
keeping perspectives true and of maintaining personal relations on a
reasonable and friendly footing.
25. 13.
BOOK III
Consular matters
Chapter 26
27
21 1
216
CHAPTER 26
So various are the functions of a consul that there can be no precise and at the
same time universally acceptable definition of the term. It would be exact and
perhaps deceptively simple to say that he is an official appointed by a
government to perform, with the permission of another government, certain
duties in the latter's territory. His functions are carried out in the interests of the
sending government's nationals and its commerce, or in connection with the
administration of its laws. But Talleyrand observed in 1837: 'Apres avoir ete un
ministre habile, que de choses il faut encore savoir pour etre un bon consul! Car
les attributions d'un consul sont variees cl l'infini: elles sont d'un genre tout
different de celles des autres employes des affaires etrangeres. Elles exigent une
foule
de.connaissances
pratiques, pour lesquelles une education particuliere est
,
,
necessalre.
26.2.
The ancient Greek city states recognised a system by which foreigners living in
Greece were permitted to choose representatives to act as intermediaries
between them and local authority. Greek settlers in Egypt in the sixth century
BC were permitted a similar privilege. In the third centuryBc the Roman praetor
peregrinus dealt with disputes between foreigners, or between foreigners and
Roman citizens. Comparable appointments, for which the term 'consul' came
to be used, were devised in Byzantium. Their holders were authorised in the
twelfth century to deal with Venetians in Constantinople, and later with
Genoese and French. It was in Constantinople that consular work as we
understand it today had its real beginnings. At first it was for the most part a
judicial responsibility for the foreign merchant community exercised by local
residents specially appointed for the purpose. In due course consules missi, the
first of whom were probably Venetians, were appointed and sent from abroad
to perform the same function. Following the Crusades, arrangements of this
kind proved their usefulness in other parts of the Mediterranean and the Near
East, as well as in France, Spain and Italy. The function of juges consuls and
consuls marchands was to arbitrate in commercial disputes. In due course it
became customary for them to exercise criminal as well as civil jurisdiction over
merchants of their own nationality. After the fall ofConstantinople in 1453 the
Western nations continued to be allowed by the Turks to appoint consuls.
Later on, France, Genoa and Venice were able to conclude agreements with
Turkey for 'capitulations,' or terms specifying the immunities and privileges to
be enjoyed by their subjects in Turkish territory.
2 12
26.3.
26.4.
As international law was not developing fast enough to keep pace with the
expansion of mercantile activity, the leading Western nations found it
expedient to conclude bilateral treaties to regulate their relations in trading
centres and seaports. The first modern consular treaty was that signed by the
representatives of France and Spain at the palace of El Pardo in 1769. Several
hundred others have been concluded since then; and from the nineteenth
century onwards commercial treaties have often included clauses on consular
matters. By degrees a greater uniformity was thus established in the recognition
of consular functions and privileges. Nevertheless the need has become steadily
more apparent, especially since tne Second World War, for a set of clear and
universally accepted definitions.
26.5.
13
26.6.
Consular posts can be established only with the consent of the receiving state,
whose agreement must also be obtained for their location. The existence of
diplomatic relations may be taken as implying consent to consular relations,
but this does not cover the establishment of individual posts, for each of which
separate permission must be obtained. Consular work in the capital city is in
fact often carried out by a depart ment ofthe embassy, in which diplomatic staff
are allocated to consular fune tions. In order to combine flexibility with
economy many governments have now unified their diplomatic and consular
services administratively in a single overseas service, making it possible for an
officer to receive diplomatic or consular appointments alternatively, as
circumstances may require. By the same token an officer may hold at one time
the dual ranks of minister (or counsellor) and consul-general, or of first
secretary and consul.
26.7.
26.8.
Whether, and if so how, a consul should continue in his functions when the
government of the receiving state is succeeded by a government which the
2 I4
sending state does not recognise is a question which must depend on the nature
and importance of the interests which it is the consul's duty to protect, and also,
of course, on the practical possibility of his being able to carry on any effective
work. This kind of problem can only be resolved according to the
circumstances of a particular situation.
26.9
Consuls belong to two broad categories: career consuls and honorary consuls.
The first contains three classes: consuls-general, consuls and vice-consuls. Career
consuls are generally nationals of the sending state and are salaried, career
government servants. They are normally debarred from gainful private
employment or occupation in the country where they are appointed. Honorary
consuls may also be appointed in any of the three classes mentioned. To this
category also belongs the consular agent, a term not universally recognised, but
by many governments equated to honorary consul. An honorary consul is
customarily a local resident in the receiving state with business interests of his
own, or some other private occupation. He may have no previous consular
experience or training. It is generally thought desirable that he should be a
national of the sending state. (However, Scandinavian countries, certain South
American countries and indeed many small states with far-flung interests
freely appoint foreign nationals in this category of post.) But ifhe is a national of
the receiving state, or of a third state, the express consent of the receiving
government is necessary for his appointment. He will in any case be expected to
perform only limited duties and will receive fees, or an expense allowance
instead of a regular government salary.2 He may be nominated by a
superintending consular post, under whose jurisdiction he will then work; and
he will be appointed by the ministry of foreign affairs.
26. I o.
Consuls are often provided by the sending state with a Commission, which is
transmitted to the government of the receiving state. This is not, however, a
universal practice. Notification of the appointment is nevertheless indispensable; and the receiving government's response is to grant their authorisation;
for without this the officer cannot take up his duties. The authorisation, ifit is a
document, is called an exequatur. It may take whatever form the usages and
regulations of the receiving state prescribe. It need not even be explicit. But its
date, or the date on which the officer is provisionally admitted to the exercise of
his functions, if this is earlier, determines his seniority in the local consular
corps. Some communist states, including certain component republics of the
USSR, require that their consent to the appointment ofa head of post should
be sought in advance, on the analogy of agrement.
26. I
I.
Members of the consular staff, other than the head of post, may be freely
appointed by the sending state, subject only to notification in advance to the
receiving government. Some governments, however, find it convenient that
members of consular staffs should also receive exequaturs. The requesting or
granting of such exequaturs, being exceptional, is a matter for bilateral
agreement, or mutual understanding.
26. I 2.
The receiving state may, upon notice of the intention to appoint a consular
officer, refuse to grant an exequatur: and if so, the sending state may enquire the
reason through the diplomatic channel though the receiving state is under no
obligation to give it. Enquiries of this kind are, however, generally considered
215
26.13.
The size of consular staffs is at times made the subject of bilateral agreement.
The Vienna Convention of 1963 recognises the right of the receiving state to
require that the staff be kept within limits which it considers reasonable and
normal, having regard to circumstances and to the needs of the post. A small,
new, or developing state may find it administratively embarrassing to cope
with an inflated corps of foreign officials in its territory; and if the staffs of
foreign representations proliferate without apparent reason, it is legitimate to
wonder what they are all up to. The Abyssinian Government, for instance,
voiced its objection at the League of Nations Assembly to Italy stationing a
consul with a guard ninety strong in a place where there were no Italian
nationals. It can be accepted as fair that the host state should be able to veto
appointments in excess of the number which, having due regard to
circumstances, the recognised activities of a foreign consulate require. These
circumstances will include the number of foreign residents, visitors, tourists,
businessmen, ships and so on, with which the consulate may have to deal; but
the notion (sometimes alleged in the interest of equality, or of prestige) that
parity of representation is desirable is unrealistic and irrelevant to the true
significance of consular appointments. In 1961, owing to the sharply
deteriorating diplomatic situation, the Cuban Government called upon the
United States for the mutual reduction, within forty-eight hours, ofdiplomatic
and consular staff to eleven in the respective capitals. The United States
Embassy and Consulate in Havana employed 300 and had been issuing
thousands of visas every month for entry into the United States. The Cuban
request was, however, overtaken by a general rupture of relations.
26.14.
The Vienna Convention provides that, even in the case of armed conflict, the
receiving state shall grant members of a consular post, their families,
households and private staff, not being nationals ofthe receiving state, time and
facilities, including means of transport, to prepare their departure and leave at
the earliest possible moment after the termination of their functions; and shall
also protect the consular premises, the property of the post and the consular
archives. 3 The sending state may entrust the custody of the premises, property
and archives, as well as the protection of its interests and of its nationals, to a
third state acceptable to the receiving state. It was on account of the many
uncertainties which arose in the two world wars regarding the treatment of
consuls and consular property that provisions of this kind were included by the
United Kingdom and others in their consular conventions. Honorary consuls,
although unlikely to be made responsible for secret documents, receive the
same protection in time of war as career officers; and at all times such
protection as may be required by reason of their official position. 4 But the
treatment accorded to consular agents and agencies is in general governed by
agreement between the sending and receiving states.
CHAPTER 27
Although the historical origins, the titles and the status of consuls are different
from those of diplomats, the distinction between the functions of consuls and
those of diplomats is not clear cut. The essential difference between diplomatic
and consular work is that whereas the diplomat does business with or through
the central government of the receiving state, the consul for the most part
conducts official business only with local or municipal authorities. The nature
of the individual consul's work varies to a much greater degree, as between
different posts, than that ofthe individual diplomatist. For example, a consul in
a busy port may do little else but shipping work; whereas in another place he
may be concerned mostly with problems arising from migrant labour, pilgrims
or tourists. Overall, however, it is the function of protection, in its broadest
sense, which is the most important consular function, whereas in the case of
diplomats the protection function is normally ofless importance than the other
major functions of negotiation with the receiving state and reporting to the
sending state. Of course a consul is concerned with the furtherance of his
country's interests and with the maintenance of satisfactory relations between
his country and others, but in practical, day-to-day working intercourse rather
than in the political sphere. His functions are thus quite often parallel to those
of the diplomatist in the embassy, but they are carried out at a different level
and in a different way.
27.2.
2I7
respect of the offence can better be taken when the ship has returned to its home
port. But if such matters are causing repeated difficulty, it may be desired to
negotiate a consular or a shipping agreement between the sending and
receiving states so as to reduce difficulty in the future, and this function will be
carried out through the embassy. The diplomat protects his nationals in the
general sense or where some major issue of principle or possible breach of
international law is involved, while the consul gives protection and assistance
in the particular case.
27.3.
One distinction which was formerly made between diplomatic and consular
work is virtually obsolete. This was that the promotion of trade and commerce
between the two countries was exclusively a function of the consul. It is true
that the Vienna Convention on Diplomatic Relations describes among the
functions of a diplomatic mission the developing of 'economic' relations,
whereas Article 5 of the Vienna Convention on Consular Relations lists among
consular functions 'furthering the development of commercial, economic,
cultural and scientific relations.' But now that the promotion ofexports and the
development of good trading relations is essential for the economic
development of all countries, and indeed for the survival of some, a clear
distinction can no longer be drawn between 'economic' and 'commercial'
work. In general, of course, negotiation on general trading matters falls to the
embassy, while it is the consul who, in his area, will give advice to the particular
businessman who wants to meet local contacts with a view to exporting his
goods or setting up a local branch ofhis firm. (In the capital this will be done by
the commercial department of the embassy.) But where the deal is of major
national importance - for example the sale of Concordes to Iranair or Spey
engines to China from the United Kingdom - the embassy will always become
closely involved.
27.4.
27.5.
18
Consular protection
27.6.
The most important of all the functions of a consul is that which heads the list
set out in Article 5 of the Vienna Convention on Consular Relations:
'protecting in the receiving State the interests of the sending State and of its
nationals, both individuals and bodies corporate, within the limits permitted
by international law.' These last words were inserted at the instance of those
states which recalled with resentment the period when the ill-treatment of
nationals of an imperial power might occasion the despatch of a gunboat or
reprisals ofa drastic kind. But they remain a useful reminder of the limits ofthe
power of a consul, who must never in his zeal to protect transgress the local law
or intervene in the internal affairs of the receiving state. Protection may involve
assisting or repatriating the destitute, settling disputes and administrative
matters arising on visiting ships belonging to the sending state, visiting
nationals in hospital if they are injured or become ill on holiday, helping
them with their arrangements, and tracing the relatives of victims of an air
disaster in the receiving state. The growth in tourism and in casual travel by the
impecunious has led to considerable increase in this kind of consular work.
Before the consul becomes involved he will of course confirm that the person
seeking assistance is one of his own nationals. Should the individual also possess
the nationality of the receiving state, the consul may assist him or make
informal representations on his behalf to the local authorities, but he is liable to
find that his right to do so is challenged. The 'effective' nationality in such
circumstances is that of the receiving state.
27.7.
The most difficult situations arise when a national of the consul's state is
arrested or imprisoned. Although customary international law entitled a
consul to have access to and communicate with his nationals, in ordinary
circumstances, it was never obligatory for the receiving state to inform the
consul if a foreign national was detained in prison; and the consul had no clear
right of access. Many states might grant access as a privilege or under their
domestic law or practice, but these were not always the states where concern for
the prisoner might be greatest. When Gerald Brooke, a London lecturer, was
arrested in Moscow on a charge of disseminating subversive literature, the
British Consul in Moscow was given access to him during his period of
imprisonment only at very long intervals. It was therefore regarded by the
British Government as of the greatest importance that the Consular
2 I9
Convention which was shortly afterwards negotiated with the Soviet Union
should contain precise provisions obliging the receiving state to notify the
consul of the arrest of one of his nationals and granting him access on a
recurrent basis. Similar provisions have since been included in the Consular
Conventions which the United Kingdom have concluded with nearly all the
countries of Eastern Europe, and they are standard also in the Consular
Conventions negotiated by the United States. In addition to the precise rights
of consular access contained in numerous bilateral consular conventions, more
general provision is contained in Article 36 of the Vienna Convention on
Consular Relations as follows:
'(b) if he so requests, the competent authorities of the receiving State shall, without
delay, inform the consular post ofthe sending State if, within its consular district, a
national of that State is arrested or committed to prison or to custody pending trial
or is detained in any other manner. Any communication addressed to the consular
post by the person arrested, in prison, custody or detention shall also be forwarded
by the said authorities without delay. The said authorities shall inform the person
concerned without delay of his rights under this sub-paragraph;'
'(c) consular officers shall have the right to visit a national of the sending State who is
in prison, custody or detention, to converse and correspond with him and to
arrange for his legal representation. They shall also have the right to visit any
national of the sending State who is in prison, custody or detention in their district
in pursuance of a judgment. Nevertheless, consular officers shall refrain from
taking action on behalf of a national who is in prison, custody or detention if he
expressly opposes such action.'
It should be emphasised that the consul must be informed only ifhis national,
being informed of his rights, so requests. If he prefers not to have consular
assistance - either because he wishes the fact of his arrest or imprisonment not
to become known to his own authorities or because he is a refugee from his own
country and wishes to have nothing to do with his own authorities - the consul
will not be informed.
27.9.
220
But there have been many occasions where the circumstances have been highly
exceptional and the consul has had perforce to assume a political role. A consul
in a remote province or a district unresponsive to the central government may
be directed to make political representation to the local civil or military
administration. Perhaps the most celebrated case ofa consul who found himself
by force of circumstances in a political role of the greatest delicacy and
importance was that ofBruce Lockhart who, originally despatched to Russia in
a consular role, remained after the Revolution and the withdrawal of the
British Embassy stafffrom Leningrad in charge of the unofficial relations which
were maintained between Britain and the new Soviet Government before
recognition was accorded in 192 1. 3 The United States, particularly because of
their reluctance to recognise regimes of which they do not approve, have often
found themselves obliged to conduct business with unrecognised regimes
through their consuls. Thus the United States Consul-General in Peking was
instructed in 1950 to communicate with the authorities ofthe Chinese People's
Republic, and in 1955 the United States Consul-General in Geneva was
directed to negotiate with the Consul-General there of the Chinese People's
Republic. 4 The Belgian Consul-General in Elizabethville (now Lubumbashi)
was instructed to talk to President Tshombe at the time of the latter's secession
from the new Republic of the Congo. 5 The assumption of a political role of
course entails the acceptance of political risks, in particular that ofexpulsion on
account of the expression of views or attitudes unacceptable to the receiving
state. A consul who continues to function where diplomatic relations are
broken, or where the authorities in his consular area are not recognised by his
government, does not necessarily assume any political functions at all.
The United Kingdom retained its consul in Taiwan for a number of years after
recognising the Government in Peking as the sole Government of China, and
this consul dealt only with the local provincial authorities and had no contact
whatsoever with the authorities of the Nationalist Government.
ProlDotional activities
27. 10.
In trade and cultural promotion and in public relations exercises the consul will
be ready to take his cue from the appropriate departments of his embassy, draw
their attention to openings for new initiative, and, at discretion, take such
initiative himself. Mr Ernest Bevin circulated an instruction to the British
Foreign Service when he was Secretary of State after the Second World War to
the effect that every member of it should regard himself as an information
officer in addition to his other capac1ties. The consul will be prepared to play a
leading role in the community of his fellow nationals in the consular district,
where he will be regarded as spokesman for his country's interests. He will
probably be an honorary member of his local chamber of commerce and he
should be familiar with the local trade associations. His office may indeed, if
circumstances permit and warrant it, contain a busy commercial section
complementing that of the embassy. He will certainly be a useful colleague for
the embassy's information officer, or press attache. And he will be ready to help
and advise, when needed, the cultural attache, or, in the British service, the
221
representative of the British Council. The consulate may con tain an information
section in the charge of an information officer with consular status. As it is
not normally permissible to set up offices forming part of the diplomatic
mission in localities other than the seat of government without the
government's express consent, it is often convenient for an information officer
in the provinces to work under the consular roof, where his status will favour
the maintenance of direct contact with the public at large.
Under customary international law only the most limited immunities, and no
privileges, were accorded to consular posts and to consuls. It could broadly be
said that only those immunities were required which resulted from the rules of
sovereign immunity. Thus the archives of a consulate were generally regarded
as inviolable, but this could equally be based on their character as archives ofa
foreign sovereign state. The consul was entitled to immunity in respect of his
official acts only. Again these acts were performed as agent for a foreign state
and so sovereign rather than consular immunity required that immunity
should be accorded in respect of them. The consular premises were not treated
as inviolable, consular bags did not enjoy the inviolable status of diplomatic
bags and consuls themselves enjoyed no personal immunity and were given
taxation or customs privileges only by courtesy, if at all.
27.12.
After the Second World World War an increasing number of states began to
merge their consular and diplomatic services and to make greater use ofcareer
consuls, as opposed to honorary consuls who would be locally engaged and not
subject to posting at the discretion of the sending state. The same individuals
might therefore serve successively in a diplomatic and in a consular capacity.
States which maintained extensive consular services abroad found that they
would benefit overall from the institution of tax and customs privileges for
consuls on a reciprocal basis. The need therefore came to be felt to assimilate
career consuls more closely to diplomats and since there was no basis for this in
customary law, it was done by means of a network of bilateral consular
conventions negotiated extensively by the major states with substantial
consular services. Most consular conventions moreover also contained
important provisions regarding consular functions. The United Kingdom
negotiated a Consular Convention with the United States in 1948 and
subsequently concluded broadly similar conventions with fourteen other states,
mostly in Western Europe, before the Vienna Convention on Consular
Relations was drawn up in 1963. These conventions accorded a very limited
inviolability to consular premises and gave consuls no additional immunity or
inviolability. Career consuls, however, were given fairly extensive tax and
customs privileges. Conventions negotiated later with the countries in Eastern
Europe differed in that, in order to ensure a higher degree of protection, full
diplomatic immunities and personal inviolability were conferred not only on
consuls and their families but also on junior staffand private servants and their
families.
222
27. 1 3.
27.15.
223
on their premises and on the fees and charges levied in the course ofthe work as
are given under the Vienna Diplomatic Convention to diplomatic missions.
The two exceptions limit the inviolability ofconsular premises. Where there is a
fire or other disaster requiring prompt protective action on the part of the
authorities of the receiving state, these authorities may assume that they have
the consent of the head of the post to enter the premises. There is no such
implied authority in the case of diplomatic premises. If expropriation of
consular premises is necessary for purposes of national defence or public utility
(for example to allow a major road to be widened), it is permissible, provided
that all possible steps are taken to avoid consular work being impeded and
provided that prompt, adequate and effective compensation for the property
expropriated is paid to the sending state. Such expropriation could not take
place in regard to diplomatic premises except with the express consent of the
sending state.
27. I b.
Career consular officers are given broadly the same privileges as are given to a
diplomatic agent under the Vienna Diplomatic Convention: exemption from
taxation subject to similar exceptions, exemption from customs duties and
inspection of personal baggage, exemption from social security obligations and
from personal, public and military service obligations. But their immunities are
much more limited than those enjoyed by diplomatic agents. Consular officers
are immune from the jurisdiction ofcourts and authorities of the receiving state
only in respect of acts performed in the exercise ofconsular functions. They are
not accorded the general immunity extending to their private acts to which
diplomatic agents are entitled. It is emphasised that a consul does not have
immunity from a civil action arising out of a contract unless the consul
contracted expressly or impliedly as agent of his own state. Nor does he have
immunity from a third-party claim for damage arising from an accident in the
receiving state caused by a vehicle, vessel or aircraft. It is therefore not relevant
in the case of a suit against a consul whether he was driving on duty when the
accident leading to the claim occurred. In either case he has no entitlement to
immunity.
27. 17.
A career consul does enjoy some inviolability, although more limited than that
of a diplomatic agent. The receiving state is under a duty to respect and protect
his person, freedom and dignity. Ifa criminal charge is brought against him, he
may be arrested or detained only in the case of a grave crime and pursuant to a
decision by a judge or court. If he is detained pending trial, the head of the
consular post, or the sending state in the case of detention of the head of the
post, must be notified of the detention. If criminal proceedings are taken
against him he must appear, although the proceedings must be condu .:ted with
due respect to his position and so as to hinder his functions as little as possible.
The fact that he must enter an appearance before the court does not of course
prevent his claiming that he is entitled to immunity because the act in respect of
which proceedings are brought was an official act. If doubt existed whether the
act was official, the court would probably seek information from the sending
state through the diplomatic channel. If he is found guilty, and provided that
the sentence is no longer subject to appeal, he may be imprisoned. Neither his
residence nor his property have any inviolability.
224
27. I 8.
Career consular officers are not exempt from the duty to attend ifsummoned as
witnesses, although if they decline to give evidence they may not be penalised.
They are under no obligation to give evidence on official matters or to produce
official correspondence or documents, or to give evidence on the law of the
sending state.
27. I g.
27. 20 .
Members of the service staff in a career post are accorded only tax exemption
on their wages, exemption from social security obligations and exemption from
the obligation to perform personal or public services.
27.2 I.
27.22.
The rules regarding waiver of privileges and immunities, and regarding the
beginning and end of privileges and immunities are virtually the same as those
which apply to diplomatic staff. There is, however, one provision which
excludes from privileges and immunities persons carrying on private gainful
occupations and which is not parallel to any provision in the Vienna
Diplomatic Convention. Consular employees or members of the service staff
who engage in private gainful occupations, together with their families and
private staff, are excluded from all privileges and immunities. Members of
families who themselves engage in private gainful occupations suffer a similar
exclusion. Consular officers who are nationals or permanent residents of the
receiving state are excluded from all privileges and immunities except for
immunity fromjurisdiction and inviolability in regard to official matters. Their
families, other members of the post who are nationals or permanent residents of
the receiving state and their families, as well as members of families and
members of private staffs who are themselves nationals or permanent residents
of the receiving state, are excluded from all entitlement to privileges or
immunities.
27.23.
Chapter III of the Vienna Convention deals with honorary consular officers
and with posts headed by such officers. These posts are given very limited
privileges and immunities. Their premises are not inviolable, although some
obligation is imposed on the receiving state to protect them from intrusion,
damage or impairment of dignity. The premises are given tax exemption
provided that they are owned or leased by the sending state. Inviolability of
consular archives is conditional on their being kept separate from the consul's
private and business papers. Only specified articles for office use, and similar
articles, are entitled to exemption from customs duty: it is clear that alcohol and
other consumables for official entertainment by an honorary post are not to be
imported free of duty. Freedom of movement and freedom of communications
are accorded as to a post headed by a career officer.
27.24.
225
Honorary consuls are given the same limited immunity from jurisdiction as
career consuls. They are not entitled to any personal inviolability although
certain courtesies are to be extended to them by reason of their official position.
If proceedings are instituted against them, they must be conducted with respect
and so as to hinder consular functions as little as possible. Their privileges are
limited to tax exemption on their official emoluments and exemption from
personal and public services. Their families are accorded no privileges or
immunities. If the consuls or their families are nationals or permanent residents
of the receiving state - and this is nearly always the case - they are excluded
from almost all privileges and immunities on the same basis as career consuls
and their families. It may be said in general that the Vienna Convention has
not increased the status of honorary consuls and their posts above what was
accorded under customary international law. It is only career consuls and their
posts whose status has been elevated by the Convention.
BOOK IV
International
transactions
Chapter 28
29
33
CHAPTER 28
Congresses and
conferences
1
28.1.
28.2.
28.3.
28.4.
230
Congresses and
co'~ferences
various ways. Sometimes it is the capital of the state which proposes this means
ofadjusting the questions at issue; or, it may be, that of the state most concerned
in their settlement. Sometimes it is chosen as a convenient centre for all parties
to meet; or to enable discussions to be carried on in a neutral atmosphere. In the
case of a multilateral treaty about to undergo revision, it may be determined by
the place of the former meeting, by a provision in the treaty itself or by an
understanding reached at the previous conference.
Invitations to a conference
28.5.
28.6.
Representatives
28.7.
Languages at conferences
23 I
28.8.
28.9.
Credentials for delegates without full powers, and for other members of
delegations, usually take the form ofa letter from the head ofthe department of
the sending government, giving their names, style or title and functions. A
distinction is made between delegates who are the direct representatives of
their governments and participants who may represent other bodies.
Languages at conferences
28.10.
232
officially used. At League of Nations conferences both French and English had
equal validity. Where a limited number of states take part, the language ofone
or other of them is sometimes adopted as the official language, in which texts
and resolutions are published, but several languages may be used as 'working
languages' for discussions and for certain subsidiary documents. The current
tendency at conferences which are not limited to one region, is for English to be
the most widely used language, but normally at least one other language is also
employed. The development of modern equipment providing simultaneous
interpretation of speeches has made the use of two or more languages much
easier. 4 The choice of equipment and the lay-out (which will have security
implications) require up-to-date expert advice. Some organisations bring their
own interpreters. Otherwise the host is expected to provide them. The
standards of simultaneous interpretation, which has always had a few
exponents of legendary skill, is nowadays generally high. The International
Associations of Interpreters and of Translators, both with headquarters in
Paris, have helped to bring this about.
28.12.
Precedence
28.13.
Procedure
233
Procedure
28.14.
28.15.
28.16.
Plenary meetings of the whole body of representatives take place from time to
time as the work proceeds. The first plenary meeting is of an introductory
character, for the election of president, naming of the secretariat, framing of the
lines on which the conference is to be organised, the appointment of
committees, etc. Thereafter plenary meetings are held, as may be required, to
receive and consider the reports of the committees. In a typical case, where the
results ofthe discussions are embodied in a treaty, and where the issues involved
are free from special difficulties, the successive stages might, for instance, be: a
first reading of the draft treaty prepared; followed by a further reading, should
modifications have been proposed and referred back to the committees; and
then a final reading of a formal character, at which the finished result would be
submitted for the signatures of the plenipotentiaries.
28.17.
234
preserved by the government of the state in which the conference was held,
which would supply copies to the representatives ofthe others. 6 In recent years,
practice has become both less regular and less formal. There is generally a
verbatim record, either stenographic or taped, from which the secretariat are
responsible for producing, often under the supervision of a rapporteur, a
summary record for circulation to delegations. Participants may be given
an opportunity of altering wording in the summary, but not the sense.
Adoption of records by the conference and their signature by the president are
unusual, although they are normally submitted to plenipotentiaries before
being drawn up in final form by the secretary-general or secretaries, whose
signatures may then be added. Drafts, declarations, etc. are often circulated as
conference documents and are not always appended to the daily record of
proceedings.
28. I 8.
28. I 9.
In the past a great deal of the work of a congress or conference might relate to
the nice adjustment of matters of ceremonial and precedence. At the Congress
of Nijmegen (1676-9) it is recorded that on the signature of the treaty of peace
between France and Spain, two copies of the treaty having been prepared, one
in French and the other in Spanish, and laid on the table at which sat the
English mediators, the three French plenipotentiaries entered by one door at
the same moment as the three Spanish plenipotentiaries entered at the other;
they sat down simultaneously in exactly similar armchairs, and signed both
copies respectively at the same instant.
28.20.
The question may arise regarding the states to be admitted to take part in a
conference. Of the Paris Peace Conference, 1919, Professor Temperley
says:
'The first question was to decide what Powers were to be represented at the
conference, and what number of plenipotentiaries were to be allowed to each. It was
finally determined to admit all those who had declared war on, or had broken off
relations with, Germany, though the neutrals were to be allowed to take part in
discussions which affected their special interests. '7
Since the Second World War, the question ofthe composition ofa conference is
one that has frequently arisen. For example, in the Berlin Communique of 18
February 1954, detailed provisions were made for the composition of the
Geneva Conference. 8
The secretary
235
The secretary
28.2 I.
28.22.
The proceedings of the conference, and the results arrived at, are on important
occasions sometimes recorded in a Final Act, more especially when these results
are embodied in a number of treaty instruments, the titles of which are set out,
with, it may be, certain voeux or recommendations, in the Final Act, which is
presented for signature by the plenipotentiaries at the last meeting of the
conference. 9
Note. - Lists of the more important congresses and conferences from the
middle of the seventeenth century onwards were given in the second edition
of this work; and in his further treatise, International Congresses, the late Sir
E. Satow dealt more fully with those held since the beginning of the last
century. None of this material is included in the present edition. But in view of
certain peculiarities with regard to the way in which the respective Peace
Treaties were negotiated and drawn up by the Paris Peace Conference of 1946,
the Japanese Peace Conference of 195 I and the Geneva Conference of 1954,
the notes on them which appeared in the Fourth Edition have been retained
and are reprinted (omitting the list of representatives at Geneva) in Appendix
11 of this book.
CHAPTER 29
The Vienna Convention on the Law of Treaties, which was opened for
signature on 2 5 May 1969, defines the term 'treaty' for the purposes of the
Convention as meaning 'an international agreement concluded between States
in written form and governed by international law, whether embodied in a
single instrument or in two or more related instruments and whatever its
particular designation. q McNair uses the term 'treaty' to denote 'a written
agreement by which two or more States or international organisations create or
intend to create a relation between themselves operating within the sphere of
internationallaw.'2 At a higher level ofgenerality, Reuter proposes a definition
of the term 'treaty' in the following sense: 'une manifestation de volonh~s
concordantes imputables cl deux ou cl plusieurs sujets de droit international et
destinee cl produire des dIets de droit selon les regles de droit international.'3
29. 2 .
It is thus apparent that there is no single, all embracing definition of the term
'treaty'. The Vienna Convention definition deliberately excludes international
agreements concluded between states and international organisations or
between international organisations themselves 4 and equally excludes international agreements not in written form. The International Law Commission
which prepared draft articles on the law of treaties as a basis for the work of
progressive development and codification represented by the Vienna
Convention on the Law of Treaties, explained that its proposed definition of
the term 'treaty' (incorporated without change into the Vienna Convention)
was 'not ... in any way intended to deny that other subjects of international
law, such as international organisations and insurgent communities may
conclude treaties': similarly the Commission made it clear that the restriction
of the term 'treaty' to international agreements expressed in writing was 'not
intended to deny the legal force of oral agreements under international law. '5
The McNair definition goes wider than the Vienna Convention by covering
international agreements between states and international organisations or
between international organisations themselves, but again his definition
excludes agreements not in written form. This is not to say that McNair denies
237
the legal force of oral agreements. Indeed, he specifically admits that, though it
is rare to find an oral agreement between states, 'it cannot be asserted that
international law regards writing as essential to the creation of an interstate
agreement. '6 In this context, he cites the judgement of the Permanent Court of
International Justice in the Legal Status of Eastern Greenland case in 1933, when
the Court had to consider the legal significance of an oral declaration made by
the Norwegian Minister for Foreign Affairs (M. Ihlen) to the Danish Minister
accredited to the Norwegian Government. The Court concluded:
'... that a reply of this nature given by the Minister for Foreign Affairs on behalf of his
Government in response to a request by the diplomatic representative of a foreign
Power, in regard to a question falling within his province, is binding upon the country to
which the Minister belongs.'7
Much more recently, the International Court ofJustice has again had occasion
to consider the extent to which oral declarations made by a head of state, a
minister for foreign affairs or another government minister may give rise to a
commitment binding on the state concerned. In the. Vuclear Tests case (Australia
v. France) in 1974, the Court attributed special weight to a series of statements
made by the President of the French Republic, the French Minister ofDefence
and the French Minister for Foreign Affairs subsequent to the oral proceedings
in the case; these statements, according to the Court, indicated the intention of
France to cease the conduct of atmospheric nuclear tests following the
conclusion of the 1974 series of tests. In analysing the legal significance of these
statements, the Court stated the following:
'With regard to the question ofform, it should be observed that this is not a domain in
which international law imposes any special or strict requiremen.ts. Whether a
statement is made orally or in writing makes no essential difference, for such statements
made in particular circumstances may create commitments in international law, which
does not require that they should be couched in written form.'8
293
For present purposes, one can ignore the special cases of international
agreements not in written form, and international agreements between states
and international organisations or between international organisations
themselves. But several other features common to the three definitions already
given warrant further analysis.
2.
29.4
238
Treaties - 1
in the meat trade. Such a contract would not be a treaty and would not be
governed by international law but by the terms of the contract itself
supplemented, where necessary, by general principles of law. 9 Other
transactions of a private law nature, such as leases of land and buildings and
loan agreements, may also be entered into between states; in such cases, it may
be difficult to determine whether the parties intended the transaction to be
governed by international law, or by general principlesoflaw, or by a particular
system of national law. IQ
3. Questions of form and terminology
29.5.
There is, secondly, the question of form, which is linked with the question of
terminology. The Vienna Convention definition makes it clear that a 'treaty'
covers not only international agreements which take the form ofa single formal
instrument, but also international agreements which take the form of related
instruments such as exchanges of Notes or exchanges of letters. The genus of
agreements connoted by the term 'treaty' is therefore a wide one. The term
'treaty' may be taken to cover all international engagements concluded
between states and governed by international law, whatever designation may
be given to the written instrument or series ofwritten instruments in which such
engagements are embodied. The term accordingly covers those written
instruments or series of instruments designated as a treaty, convention,
agreement, protocol, covenant, charter, statute, act, declaration, concordat,
exchange of Notes, exchange of letters, modus vivendi and, depending upon the
intention of the parties, agreed minutes and memoranda of understanding. 11
As the Permanent Court ofInternationalJustice stated in its Advisory Opinion
concerning the Customs Regime between Germany and Austria:
'From the standpoint of the obligatory character of international engagements, it is
well known that such engagements may be taken in the form of treaties, conventions,
declarations, agreements, protocols or exchanges of notes" 2
In this chapter, it is proposed to deal with these six types of treaty instrument
(although not in the order given), and in Chapters 30 and 3 1 with various other
types of treaty instrument which fall within, or may fall within, the general
definition of the term 'treaty' (e.g. Pact, Constitution, Charter, Statute,
Regulation, Concordat, Additional Articles, Act, General Act, Final Act,
Modus Vivendi and Compromis d' Arbitrage).
4 Instruments not intended to embody legally binding obligations
29.7
But, first, it must be borne in mind that not all instruments of an international
character are intended to have an 'obligatory character.' For instance, no
legal obligations were incurred as the result of the Atlantic Charter of 14
August 1941, in which the then President ofthe United States (Mr Franklin D.
Treaties
239
Roosevelt) and the then Prime Minister (Mr Winston Churchill), representing
His Majesty's Government in the United Kingdom, issued aJoint Declaration
stating that 'being met together' they deemed it right 'to make known certain
common principles in the national policies oftheir respective countries in which
they base their hopes for a better future for the world.' Similarly, it would
appear from the internal evidence that the Final Act of the Conference on
Security and Cooperation in Europe 15 is not considered to amount to a treaty.
The Government of Finland is requested to transmit the text ofthe Final Act to
the Secretary-General of the United Nations with a view to its circulation to all
members of the organisation as an official document ofthe United Nations; but
it is specifically stated that the Final Act' is not eligible for registration under
Article 102 of the Charter of the United Nations,' and, as Article 102 of the
Charter requires the registration of every treaty and every international
agreement entered into by any member of the United Nations, it must be
presumed that the states participating in the Conference on Security and
Cooperation in Europe (C.S.C.E.) and signing the Final Act did not consider
that they were subscribing to a treaty instrument. 16
29. 8 .
It would also seem that the Universal Declaration ofHuman Rights adopted by
the General Assembly of the United Nations on 10 December 1948, is not
legally binding since it was made clear that those countries voting in favour of
the Declaration would assume no legal obligations thereby. 17
Treaties
29.9.
Z9 1O
240
Treaties - I
29. I
I.
Formerly, treaties in the restricted sense were always concluded between heads
of state; but modern practice demonstrates that treaties can be concluded in
heads of state form, in interstate form or in intergovernmental form. The choice
of form may depend in part on the political importance ofthe treaty and in part
on the constitutional requirements of the contracting parties; otherwise it is not
possible to discern any general principle governing the choice between these
forms, although the following illustrations of practice may be given.
29. I 2.
Treaties between heads of state are still concluded. The treaties establishing the
three European Communities are cast in this fonn, as (to take but a few examples
from United Kingdom practice) are the Treaty on Merchant Navigation between
the United Kingdom and the Union ofSoviet Socialist Republics of9 April 1968;24
the Treaty of Alliance and Mutual Assistance between the United Kingdom and
France concluded at Dunkirk on 4 March 1947;25 the Extradition Treaty between
the United Kingdom and Austria of 9 January 1953, with amending Protocol of
15 January, 1969;26 and the Consular Convention between the United Kingdom
and the Polish People's Republic of 23 February 1967.27
29. I 3.
A treaty concluded in heads of state form can be broken down into the
following parts:
The preamble (narratio) beginning with (a) the names and titles of the High
Contracting Parties; (b) a summary of the object and purpose of the treaty; (c) the
names and official designations of the plenipotentiaries appointed by the High
Contracting Parties; (cl) a paragraph stating that the plenipotentiaries have
produced their full powers, which were found to be in good and due form, and that
they have agreed upon the following articles.
2. The various substantive articles of the treaty (dispositio) which may begin with a
definitions article and will then normally be followed by general provisions, more
specific provisions and, finally, those provisions, ifany, which lay down the means of
executing the general and specific provisions. 28
3. A series of articles generally known as the 'final clauses' (corroboratio) which deal with
such matters as the extent of application of the treaty (whether ratione loci or ratione
temporis), signature, ratification accession, entry into force and duration. In the case of
a multilateral treaty, there may also be a reservations article. The provision for ratification usually mentions the place for the exchange or deposit of instruments of ratification, whilst the clause dealing with duration may specify that the treaty shall remain
in force for a fixed number of years and shall thereafter continue in force until the expiry of six months' (or a year's) notice of tennination given by one party to the other.
I.
Conventions
24 I
4. A clause (testimonium) stating 'In witness whereof ... ('En foi de quoi ... ') the
respective plenipotentiaries have affixed their signatures and seals.'
5. Locality and date ('Done at ... the ... day of. .. , 19 ...').
6. Seals and signature.
29. 14.
Treaties between states (that is to say, in interstate form) are now much more
frequent. The North Atlantic Treaty of4 April 1949, the Treaty of Peace with
Italy of 10 February 1947,29 the Treaty of Peace with Japan of8 September
195 I 30 and the South-East Asia Collective Defence Treaty of 8 September
1954 31 were all concluded between states rather than between heads of states.
The Treaty on the Non-Proliferation of Nuclear Weapons of I July 1968, is
another example of a recent multilateral treaty concluded in interstate form.
Recent bilateral treaties concluded by the United Kingdom in interstate form
include the Treaty of Friendship with Bahrain of 15 August 197 1,32 the Treaty
of Friendship with Qatar of 3 September 197 I 33 and the Treaty of Friendship
with the United Arab Emirates of 2 December 197 I .34
29 I 5
Treaties between states are rather less formal than treaties between heads of
states. 35 In place of the term 'High Contracting Parties', the expression
'Contracting Parties' or 'Contracting States' (or sometimes simply 'the Parties'
or 'the States Parties') is used. The preamble may also be reduced in length by
the omission of one or other of the formal elements usual in the preamble of a
treaty concluded between heads ofstates. It is, however, customary, even in the
case of a treaty between states, to retain in the preamble a statement of the
object and purpose of the treaty.
29. I 6.
Treaties between governments are also less formal. The parties normally refer
to themselves as the 'Contracting Governments' or the 'Contracting Parties',
although occasionally one may come across the use of such terms as 'Signatory
Governments' or 'Participating Governments'. Again, however, the preamble
will usually contain a statement of the object and purpose of the treaty.
Conventions
29. I 7.
242
Treaties - I
However, it must not be thought that the designation 'convention' is used only
for multilateral treaties of a law-making (or normative) type. The designation
is also used for a wide range of bilateral treaties - for example, consular
conventions, double taxation conventions and conventions for the reciprocal
enforcement of judgements.
29.19.
AgreelDents
29.20.
The term 'agreement', like the term 'treaty' itself, is used in a number ofsenses.
In a generic sense, it covers any meeting of minds - in this case, the minds oftwo
or more international persons. But, as has already been stated, a distinction
must always be drawn between agreements intended to have an obligatory
character and agreements not intended to have such a character. In its
restricted sense, the term 'agreement' means an agreement intended to have an
obligatory character, but usually of a less formal or significant nature than a
treaty or convention. Like treaties and conventions, agreements in this
restricted sense may be concluded between heads of state, between states, or
between governments.
29.21.
Protocols
243
the United Kingdom, Norway and the Soviet Union on the Regulation of the
Fishing of North-East Arctic (Arcto-Norwegian) Cod of 15 March 1974,47 the
Agreement with the Soviet Union on Cooperation in the field of Environmental Protection of 21 May 1974,48 the Agreement with Indonesia on certain
Commercial Debts of 4 October 1972,49 the Agreement with Denmark relating
to the Delimitation of the Continental Shelf between the two Countries of 25
November 1971,50 the Agreement with the Federal Republic of Germany
relating to the Delimitation of the Continental Shelf under the North Sea
between the two Countries of 25 November 1971, SI the Agreement with
Denmark on the International Carriage of Goods by Road of 29 June 197 2 ,52
the Agreement with the International Atomic Energy Agency for the
Application of Safeguards of 14 December 1972,53 the Trade Agreement with
Mongolia of 21 March 1973,54 the Cooperation Agreement with Czechoslovakia of 8 September 1972,55 and the Agreement with Indonesia for Air
Services between and beyond their respective Territories of 28 June 1973. 56 It
may be noted here that bilateral treaties concluded between the United
Kingdom and other Commonwealth countries usually take the form of
'agreements' and are expressed to be concluded as between governments rather
than as between heads of state or as between states.
29.22.
Protocols
29.23.
The term 'protocol' derives from the Low-Latin protocollum, itselfderiving from
a word in the original Greek meaning the 'first glued-in' to a book - that is to
say, a summary or digest of the contents. In diplomacy, it gradually came to
mean the register in which the minutes of a conference were held. It is, of
course, also employed in diplomacy to signify the forms to be observed in the
official correspondence of the minister for foreign affairs and in the drafting of
diplomatic documents such as treaties, full powers, letters of credence and
recall, etc. Finally, it has come also to embrace the concept ofsomething which
is added to a treaty in order to perfect or complete the treaty. The word
'protocol' may accordingly, depending upon the context in which it is used,
signify 'an addition to a treaty, a summary of official proceedings or a
technique of the proper method of doing things, including official etiquette. '59
In this last very broad sense, the word will, of course, cover such matters as
protecting sensitive national dignities on major occasions and the practical
arrangement of the most informal occasions where there might well be
difficulties if no rules existed. 60
244
Treaties - I
29.24.
29. 25.
29.26.
29.27.
It is, however, correct to say that the protocol is now used principally as an
instrument subsidiary to a treaty or convention, usually (but not necessarily)
drawn up by the same negotiators, and dealing with ancillary or incidental
Declarations
245
Declarations
29.28.
29.29.
29.30.
246
Treaties - J
29.3 I.
29.32.
[signatures]
In the Ambatielos case 93 the International Court ofJustice held that the above
Declaration was a 'provision' of the Treaty to which it was annexed, within the
meaning of Article 29 of the Treaty, which stated that any disputes that might
arise between the parties 'as to the proper interpretation or application of any
of the provisions of the present Treaty' should be referred to the Court at the
request of either party. Consequently, the Court found that it had jurisdiction
to determine a dispute, relating to the interpretation of the Declaration, despite
an objection to the jurisdiction lodged by the United Kingdom. One of the
reasons why the Court came to this conclusion was that, when the instruments
of ratification of the Treaty were exchanged, the Declaration was included,
together with the Treaty, in the instrument prepared by the United Kingdom
Government, between the words 'which Treaty is, word for word, as follows'
and the words 'We, having seen and considered the Treaty as aforesaid, have
approved, accepted and confirmed the same in all and everyone of its articles
and clauses' (see instrument of ratification in 32.20.). Further reasons for the
Court's decision were that the plenipotentiaries had included the Treaty and
the Declaration in a single document; that the United Kingdom Government
had issued as Treaty Series, No. 2 (1927) a single document entitled 'Treaty of
Commerce and Navigation between the United Kingdom and Greece and
accompanying Declaration', and that the Foreign Offices of both countries had
communicated official texts to the League of Nations at Geneva for
registration, which led to their inclusion in the League of Nations Treaty Series
under a single number, as 'No. 1425. Treaty of Commerce and Navigation
between the United Kingdom and Greece and accompanying Declaration
signed at London, July 16 1926.'
Exchange of Notes
29.33.
247
Exchange of Notes
2934
29.35.
It is not customary to exhibit full powers for an exchange of Notes. Nor are
exchanges ofNotes normally subject to ratification, although in some cases they
may be. The International Law Commission in their commentary to what is
now Article 14 of the Vienna Convention on the Law of Treaties, summarise
the position as follows:
'Meanwhile, however, the expansion of intercourse between States, especially in
economic and technical fields, led to an ever-increasing use of less formal types of
international agreements, amongst which were exchanges of Notes, and these
agreements are usually intended by the parties to become binding by signature alone.
On the other hand, an exchange of notes or other informal agreement, though employed
for its ease of convenience, has sometimes expressly been made subject to ratification
because of constitutional requirements in one or other of the contracting States.' 95
The fact that exchanges of Notes do not normally require ratification, and
accordingly enter into force as soon as the exchange has been effected, makes
them a very convenient and flexible instrument for treaty-makers. Although
the form is used for recording agreement between two governments on a wide
variety of routine matters, it has also been used to regulate transactions of
considerable political importance. Thus, exchanges of Notes have dealt with
such matters as the transfer and lease of military bases, the maintenance of
armed forces and military missions on foreign soil, settlement of war claims,
settlement of boundary disputes, delimitation of territorial waters and
jurisdiction over foreign armed forces for criminal offences. 96 More recently,
the device of an exchange of Notes was used to record the interim agreement
between the United Kingdom and Iceland in connection with the fisheries
dispute occasioned by the Icelandic claim to a fifty-mile exclusive fisheries
limit. 97
29.36.
Normally the Notes exchanged recording the agreement bear the same date, in
248
Treaties - 1
which case, unless they provide otherwise, the agreement has effect from that
date. If they bear different dates, that of the last Note, or at any rate the date of
its receipt, is the governing date (unless it is otherwise provided), since the
agreement cannot be regarded as completed until it is plain that it has been
accepted on both sides.
29.37.
The treaty concluded in the form of an exchange of Notes is the type of treaty
instrument which is now most regularly utilised. Comparative studies of the
types of treaty instruments registered with the League of Nations and with the
United Nations have confirmed the growing use of the 'exchange of Notes'
form. Blix, on the basis ofa comparative survey oftreaty instruments registered
with the League of Nations between the years 1932 and 1940 and with the
United Nations between the years 1946 and 195 I points out that inst.ruments in
the form of an 'exchange ofNotes' constituted 24 per cent ofthe League treaties
and 30 per cent of the United Nations treaties. 98 A rough analysis of recent
indices of the United Kingdom Treaty Series reveals that the use of the
'exchange of Notes' form is steadily increasing, at least in United Kingdom
practice. Of 350 treaty instruments published in the United Kingdom Treaty
Series during the years 197 I to 1974 in the form of treaties, conventions,
agreements, protocols and exchanges of Notes, 7 were in the form of 'treaties'
(in the restricted sense), 29 were in the form of 'conventions', 98 were in the
form of 'agreements', 29 were in the form of'protocols' and 188 (that is to say,
nearly 54 per cent) were in the form of 'exchange of Notes'.
29.38.
249
reply was signed by M. Thorn and countersigned by the eight other Foreign
Ministers. 101
29.39.
(a) Exchange of Notes between the United Kingdom and Sierra Leone
amending the Air Services Agreement signed at Freetovtn on 5 April
1962 ;102
(b) Exchange of Notes between the United Kingdom and Jordan concerning
an Interest-Free Development Loan for Afforestation, Electricity and
Phosphates Projects; 103
(c) Exchange of Notes between the United Kingdom and Canada concerning
the Training of United Kingdom Armed Forces in Canada;104
(cl) Exchange of Notes between the United Kingdom and Thailand
temporarily prolonging the Treaty ofCommerce and Navigation signed at
Bangkok on 23 November, 1937;105
(e) Exchange of Notes between the United Kingdom and the Arab Republic
of Egypt concerning assistance by the United Kingdom in the clearance of
the Suez Canal. 106
29.41.
250
Treaties - I
of the United Kingdom, the United States of America, Italy and Yugoslavia
about the Free Territory of Trieste 111 provides that certain things were to be
done 'as soon as this Memorandum of understanding has been initialled' or
within a specified period from the date of initialling.
29.42.
29.43.
If a treaty covers more than a single sheet of paper, the sheets will be united by
ribbon or fancy cord and the ends of the ribbon will be sealed. A cover will
normally be supplied by the host government.
29.44.
29.45.
A bilateral treaty between two countries which share the same language will be
drawn up in that language only (e.g. a treaty between the United Kingdom
and the United States or between the United Kingdom and Australia).
29.46.
29.47.
Where a treaty is drawn up in two or more languages, great care must be taken
to ensure the closest correspondence possible between the respective texts. But
this may sometimes be difficult, more especially when the languages differ
widely in character. The faith of negotiators that they have achieved
concordance between differing language texts of a treaty may sometimes be
sadly misplaced. The Treaty of Uccialli of 2 May 1889, concluded between
Italy and Ethiopia affords an example of such a misunderstanding. Article
XIX of this Treaty, in the English-language version published in British and
Foreign State Papers, 114 declared that 'the present Treaty being drawn up both in
the Italian and Amharic languages, and the two versions agreeing perfectly
up
of treaties
251
with one another, both texts shall be considered official, and shall have under
all circumstances the same authority.' The subsequent history ofthe Treaty, as
recorded by the Ethiopian representative to the Vienna Conference on the Law
of Treaties, is revealing:
'The treaty had been one of friendship and alliance, drawn up in Amharic and in
Italian, both texts being considered equally authentic. After its conclusion, differences
had arisen concerning the meaning to be given to Article XVII of the treaty. The
Emperor Menelik had argued, on the basis of the Amharic text, that the article did not
bind him to avail himself of the King of Italy's intermediary in his dealings with other
Governments, but the Italian Government, relying on the Italian text of the treaty, had
argued that the Emperor had agreed to avail himselfof the King ofItaly's intermediary
in all his dealings with foreign Governments. In December, 1889, the Emperor Menelik
had informed the Governments of European countries of his coronation directly, and
not through the intermediary of the King of Italy, an act at which the Government of
Italy had taken offence. Some time later, the Emperor had formally denounced the
treaty in a circular letter addressed to various European Governments, and the treaty
had subsequently been formally annulled under Article 11 of the Treaty of Peace
concluded between Ethopia and Italy in 189 6.' 115
The number of language texts in a multilateral treaty may vary from a single
text to as many as six (Arabic, Chinese, English, French, Russian and Spanish)
for treaties concluded under the auspices of the United Nations,116 or seven
(Danish, Dutch, English, French, German, Irish and Italian) for treaties which
amend the original European Community Treaties following upon the
enlargement of the European Communities in 1973,117 all those texts being
equally authentic. But a multilateral treaty may be drawn up in two or three
widely spoken language texts only (for example, in English, French and
Spanish), provision being made for 'agreed translations (or official texts) ofthe
treaty to be established in other languages also).1118
29-49.
Article I I I of the Charter of the United Nations provides that 'the Chinese,
French, Russian, English and Spanish texts are equally authentic.' Nevertheless, since the working languages of the San Francisco Conference of 1945
were English and French, it is reasonable to assume that, in interpreting the
Charter, more weight should be given to the texts in these languages than to the
others. As between the English and French texts, the English is perhaps the
more authoritative for the reason that the text of the Charter finally approved
by the Coordination Committee - and the text from which the translations into
other languages were made - was in English. As Hardy points out by reference
to a number of cases which have come before the International Court ofJust ice
on the interpretation of particular articles of the Charter, the Court and its
individual members tend, despite the provisions of the Charter regarding the
authenticity of texts, 'to rely solely on the French and English versions of that
252
Treaties - I
instrument and to consider the Chinese, Spanish and Russian versions as mere
translations.' 119
29.50.
Article 33 of the Vienna Convention on the Law of Treaties provides that 'the
terms of the treaty are presumed to have the same meaning in each authentic
text.' It then goes on to deal with the case where a comparison ofthe authentic
texts discloses a difference ofmeaning which the application ofaccepted rules of
treaty interpretation does not remove; and it states that, leaving aside the case
where the treaty has provided or the parties have agreed that, in case of
divergence, a particular text shall prevail, 'the meaning which best reconciles
the texts, having regard to the object and purpose of the treaty, shall be
adopted.'
29.5 I.
It was formerly thought that, in the case of a divergence between two or more
equally authentic language texts of a treaty, a restrictive interpretation was
called for. In the Mavrommatis Palestine Concessions case, the Permanent Court of
International Justice stated that:
'... where two versions possessing equal authority exist, one of which appears to have a
wider bearing than another, it [the Court] is bound to adopt the more limited
interpretation which can be made to harmonize with both versions and which, as far as
it goes, is doubtless in accordance with the common intention of the Parties.' 120
However, as Hardy has pointed out,121 the Permanent Court was concerned in
that case simply to establish whether a particular act (i.e. the grant of a
concession) fell within the powers conferred by the mandate instrument.
Moreover, the International Law Commission has since expressed the view
that 'the Court does not appear necessarily to have intended by [this sentence]
to lay down as a general rule that the more limited interpretation which can be
made to harmonize with both texts is the one which must always be adopted;'
and the Commission conclude that 'while the Mavrommatis cases gives strong
support to the principle of conciliating - i.e. harmonizing - the texts, it is not
thought to call for a general rule laying down a presumption in favour of
restrictive interpretation in the case of an ambiguity in plurilingual texts. '122
CHAPTER 30
30.2.
None the less, several treaties which the Contracting Parties regard as being of
a particularly solemn nature are still given the formal designation 'Pact'. A
recent example of this usage is the Pact of the League of Arab States signed in
Cairo on 22 March 1945;2 another is the Pact of Bogota, the name deliberately
given to the American Treaty on Pacific Settlement signed at Bogota on 30
April 1948. J
Constitution
30.3.
254
Treaties - 11
Charter
30.4.
The term 'Charter' given to the constituent treaty of the United Nations
appears to have originated in the United States Department of State with a
research staff group to which was assigned the task ofdrafting a text to embody
the principles of post-war international organisation developed by studies
made up to August 1943. 7 It would seem that the term was conceived of, by
analogy with Magna Charta, as symbolising a grant of authority to the
organisation from the peoples represented by the governments which would
institute it; and emphasis was given to this underlying idea by formulating the
preamble in the name of 'We the peoples of the United Nations.,a
30.5.
30.6.
The term 'Charter' has also been given to certain instruments which do not
qualify as treaties, whatever influence such instruments may have as being
declaratory of the aspirations of those who subscribe to them. In this category
falls the Charter of Economic Rights and Duties of States adopted on 12
December 1974, by virtue of General Assembly Resolution 3281 (XXIX).II
Statute
3.7.
'Statute' as the designation for a treaty instrument has come into usage among
treaty-makers from parliamentary practice. It is a basic act which regulates an
institution or specific international regime; in so far as it may be the constituent
instrument of an international organisation, it is or may be interchangeable
with 'Constitution'. Examples of use of the term to denote the constituent
instrument of an international organisation are the Statute of the Council of
Europe, 12 the Statute ofthe Hague Conference on Private International Law, 13
and the Statute of the International Atomic Energy Agency. 14 The Statute of
the International Court ofJustice which forms an integral part of the United
Nations Charter is another example of the use of the term 'Statute' to denote a
constituent instrument.
30.8.
In earlier times, and particularly during the period of the League of Nations,
the term 'Statute' was used more generally for treaty instruments setting up
regimes for particular territories or for particular waterways. The first use of
the term in this sense appears to have been in the Convention and Definitive
Statute of the Danube concluded on 23 July 192 L I5 Other instruments of this
type adopted within the framework of the League of Nations were the Statute
on the Regime of Navigable Waterways of International Concern l6 and the
Statute on the International Regime of Railways. 17 Finally, the special regime
Concordat
255
governing Memel during the inter-war period was embodied in the Statute of
Memel annexed to the Convention of Paris of 8 May 1924, relating to the
Territory of Memel. 18
Regulations
30.9.
3.10.
Concordat
30.1 I.
A concordat is an agreement between the Pope and the head ofa state which
has for its purpose to safeguard the interests of the Roman Catholic Church in
the state concerned. It would seem that the concordat is gradually becoming
obsolete, being replaced by 'agreement' or modus vivendi of lesser scope. 22
30.12.
256
Treaties - 11
30. I 3.
2.
3.
4.
5.
6.
30. I 4.
M yers takes the view that 'Concordats concluded between the Pope and States
are not treaties, but the Pope as head ofVatican State has the capacity to make
treaties and a concordat concluded by him in that capacity would be a
treaty. '27
30. I 5.
Additional Articles
257
Additional Articles
3.16.
30.17.
The United States and Venezuela added the following Additional Article to
their Extradition Treaty of 19 January 1922:
The undersigned (names of plenipotentiaries) have agreed upon the following
additional Article to the Treaty of Extradition signed by the aforesaid on the 19th
instant:
It is agreed that all differences between the contracting Parties relating to the
interpretation or execution of this Treaty shall be decided by arbitration.
In witness whereof they have signed the above Article, and have hereunto affixed
their seals.
Done in duplicate, in Caracas, this 21st day of January, 1922.30
3.18.
30.19.
CHAPTER 31
The term 'Act' (as distinguished from 'General Act' or 'Final Act') is a form of
treaty nomenclature which has been used for many years. I t is sometimes used
to designate an international instrument which, in and of itself, may lack some
of the formal characteristics ofa treaty stricto sensu, but which nevertheless forms
part of a complex of treaty instruments establishing clear legal rights and
obligations as between the parties. In this sense, an 'Act' will constitute a piece
of international legislation and may indeed embody the decisive terms of the
treaty complex. An example of this type of usage is the 'Act concerning the
Conditions of Accession and the Adjustments to the Treaties' annexed to, and
forming an integral part of, the Treaty of 22 January 1972, concerning the
Accession of Denmark, Ireland and the United Kingdom to the European
Economic Community and the European Atomic Energy Community. 1 The
Act of Accession consists of 161 substantive articles which, when read with the
1 1 annexes, 30 protocols and single exchange of letters attached to the Act and
forming an integral part thereof, 2 constitute the substantive terms upon which
the accession of the three new member states to the European Communities
was negotiated. A single' Act' embodying the substantive terms ofaccession but
not constituting by itself a treaty stricto sensu proved to be a useful means of
overcoming certain technical difficulties posed by the differences between the
provisions of the three European Community treaties concerning the accession
of new members. Article 237 of the EEC Treaty clearly stipulates that 'the
conditions ofadmission and the adjustments to this Treaty necessitated thereby
shall be the subject of an agreement between the Member States and the
applicant State.' Article 205 of the EURATOM Treaty is in identical terms.
By way ofcontrast, Article 98 of the Treaty establishing the European Coal and
Steel Community provides that the Council, after obtaining the opinion of the
High Authority (now the Commission) shall, acting unanimously, determine
the terms of accession. Formally, therefore, provision is made for the accession
of the new Member States to the European Economic Community and to
General Act
259
EURATOM by the Treaty of Accession itself; and for their accession to the
European Coal and Steel Community by a Decision of the Council of the
European Communities of22January 1972 based upon Article 98 of the ECSC
Treaty. Both the Treaty of Accession and the Council Decision of 22 January
1972 incorporate the substantive negotiated terms set out in the single Act of
Accession. 3
31.2.
A particular usage of the term 'Act' appears to have developed in the practice
of the Latin American States. On at least two occasions, the Latin American
States have used the device ofan 'Act' to assert, in advance ofevents, what their
collective policy will be. Thus, the Act of Habana of 30 July 1940,4 was
intended to make clear the position of the American Republics if Germany
attempted to take French or other European territorial possessions in the
Americas before a Convention ofthe same date could be ratified. Similarly, the
Act of Chapultepec of 8 March 1945,5 was drawn up by an Inter-American
Conference on Problems of War and Peace in the form of an agreement
concerning reciprocal assistance and solidarity; the Act ofChapultepec tended
to unite the positions of the participating states in advance of the San Francisco
Conference and it clearly had some influence on the formulation of Articles
51 -54 of the United Nations Charter.
General Act
3 1.3.
A General Act became familiar in the late nineteenth century and early
twentieth century as the name of a treaty of general import negotiated at an
international conference. The Berlin Conference of 1885 drew up a series of
detailed provisions concerning:
(a) Freedom of trade in the Congo Basin, its tributaries and neighbouring
countries;
(b) The protection of the inhabitants, missionaries and travellers, as well as
religious freedom;
(c) The postal regime in the Congo Basin;
(cl) The slave trade in the Congo Basin;
(e) Neutrality of territories comprised in the Congo Basin;
(f) Navigation on the Congo; and
(g) Navigation on the Niger.
These detailed provisions were united in a single General Act, itself clearly
constituting a treaty. 6
31.4.
A later conference in Berlin concerned itself with the affairs of the Samoan
Islands and drew up a General Act on the Affairs ofSamoa dated 14June 1889
which united a series of provisions relating to the independence and neutrality
of the islands of Samoa, the modification of existing treaties, the establishment
of a Supreme Court of Justice for Samoa, titles to land in Samoa, the
administration of the municipal district of Apia, taxation and revenues in
Samoa, and restrictions on the sale and use of arms, ammunition and
intoxicating liquors in Samoa. 7
260
Treaties - 111
Further instances of the use of the term are the General Act of the Brussels
Conference of 1890 relative to the African Slave Trade;8 the General Act ofthe
Algeciras Conference of 1906 relative to the Affairs of Morocco; 9 the General
Act for the Pacific Settlement ofInternational Disputes of 26 September 1928,
prepared under the auspices of the League of Nations; 10 and the Revised
General Act for the Pacific Settlement of International Disputes of 28 April
1949, prepared under the auspices of the United Nations. 11 It may be noted
that in the Nuclear Tests cases (Australia v. France and New Zealand v. France)
before the International Court ofJustice, Australia and New Zealand invoked
Article 17 of the 1928 General Act, read together with Articles 36( I) and 37 of
the Statute of the Court, as founding the jurisdiction of the Court in the
particular cases, Australia, New Zealand and the French Republic all being
parties to the General Act (with reservations). 12 In the proceedings instituted in
1976 before the International Court of Justice, Greece sought to found the
jurisdiction of the Court in relation to her dispute with Turkey over the
delimitation of the continental shelf in the Aegean Sea on the 1928 General
Act, read in conjunction with Articles 36( I) and 37 of the Statute ofthe Court;
the Court, on I I September 1976, rejected the Greek application for interim
measures of protection on the grounds that no permanent damage was being
done to Greek interests by Turkish exploration, that any Greek claim to have
suffered financial loss because Turkish knowledge of the seabed resources had
affected its negotiating position when selling concession rights could be met by
financial compensation, and that both the Greek and Turkish Foreign
Ministers had reacted favourably to the Security Council resolution of 26
August 1976 urging both countries to negotiate a peaceful settlement of the
dispute. 13
Final Act
31.6.
The term 'Final Act' (Acte Final) is normally used to designate a document
which constitutes a formal statement or summary of the proceedings of an
international conference, enumerating the treaties or related treaty instruments drawn up as the result of its deliberations, together with any resolutions
or voeux adopted by the conference. The signature of an instrument of this
nature does not in itself entail any expression of consent to be bound by the
treaties or related treaty instruments so enumerated, which require separate
signature and, to the extent necessary, ratification.
31.7.
An example of this type of Final Act is provided by the Final Act ofthe Vienna
Conference on the Law of Treaties. This contains the following elements:
A description of the background to the convening of the Conference;
2. A list of the states represented at the first and second sessions of the
Conference (103 states represented at the first session and 110 states at the
second session);
3. A list of the Specialised Agencies and interested intergovernmental
organizations which had accepted invitations to attend the Conferences as
observers;
I.
Final Act
261
This is the normal type of Final Act, of which many examples can be found
in treaty practice. One of the first instances of the use of this device is the Final
Act of the Hague Conference of 1899. After much discussion as to how the
results of the Conference should be formally recorded, it was eventually
decided to draw up a Final Act which would be a resume of the work done by
the Conference and as such would be signed by all the Powers present 'who thus
affirmed the authenticity of the record without binding themselves to sign each
of the Conventions or adhere to each of the Declarations or Wishes contained in
the Act.' 14 Sir Julian Pauncefote (one of the principal United Kingdom
delegates) described the Final Act of the Conference as 'an exposition of the
work of the Conference presented to the various Governments for their
information and approval.'15
31.9.
The Final Act of the Second Peace Conference held at The Hague in 1907 was
drawn up in precisely the same form. It records:
The background to the convening of the Conference:
2. The names of the delegates representing each Power taking part:
3. Enumeration of the thirteen Conventions and the single Declaration drawn
up for signature;
4. The text of a separate declaration on compulsory arbitration;
I.
262
Treaties -Ill
31.1 I.
Modus Vivendi
3 1 12 .
Compromis d'Arbitrage
263
nation treatment (with the necessary exceptions), the functions of the Soviet
trade delegation, shipping, extension to British Dominions, colonies, etc. The
Agreement is expressed to come into force on signature and to remain in force
pending the coming into force of a commercial treaty, subject to the right of
either Party to give six months' notice of termination. (Art. 7.)
3 1 1 5.
The agreemen t was to run for two years from the date of the Exchange ofNotes,
and it is specifically provided (in paragraph 3) that 'its termination will not
affect the legal position of either Government with respect to the substantive
dispute.' It will be recalled that, prior to the conclusion of the Exchange of
Notes of 13 November 1973, the United Kingdom Government had instituted
proceedings against the Icelandic Government before the International Court
ofJustice in relation to the substantive dispute; and this no doubt explains the
references in the Exchange of Notes to the legal position and rights of either
Government in relation to the substantive dispute. In its judgment on the
merits of the Fisheries Jurisdiction case, the Court states the following:
'The interim agreement of 1973, unlike the 1961 Exchange of Notes, does not describe
itself as a "settlement" of the dispute and, apart from being of limited duration, clearly
possesses the character of a provisional arrangement adopted without prejudice to the
rights of the Parties, nor does it provide for the waiver ofclaims by either Party in respect
of the matters in dispute. '24
The Court accordingly concluded that there still existed at the time of the
adjudication an actual controversy involving a conflict of legal interests
between the Parties, and that the existence of the interim agreement ought not
to lead it to refrain from pronouncing judgement in the case.
Cornprornis d'Arbitrage
31. I 6.
264
Treaties - III
either case the subject of the dispute and the parties shall be indicated.'
3 1 17
Several cases have been referred to the International Court ofJ ustice by special
agreement (compromis). A good example is the Special Agreement for
Submission to the International Court ofJustice of Differences between the
United Kingdom of Great Britain and Northern Ireland and the French
Republic concerning Sovereignty over the Minquiers and Ecrehos Islets,
signed in London on 29 December I 950. l~ The text of this Special Agreement
reads as follows:
'The Government of the United Kingdom of Great Britain and Northern Ireland
and the Government of the French Republic;
Considering that differences have arisen between them as a result ofclaims by each of
them to sovereignty over the islets and rocks in the Minquiers and Ecrehos groups;
Desiring that these differences should be settled by a decision of the International
Court of Justice determining their respective rights as regards sovereignty over those
islets and rocks;
Desiring to define the issues to be su bmitted to the International Court ofJustice;
Have agreed as follows:
Article I
The Court is requested to determine whether the sovereignty over the islets and
rocks (in so far as they are capable of appropriation) of the Minquiers and Ecrehos
groups respectively belongs to the United Kingdom or the French Republic.
Article 11
Without prejudice to any question as to the burden of proof, the Contracting parties
agree, having regard to Article 37 of the Rules of Court, that the written proceedings
should consist of
a United Kingdom memorial to be submitted within three months ofthe notification
of the present Agreement to the Court in pursuance of Article III below;
2. a French counter-memorial to be submitted within three months of delivery of the
United Kingdom memorial;
3. a United Kingdom reply followed by a French rejoinder to be delivered within such
times as the Court may order.
I.
Article III
Upon the entry into force of the present Agreement, it may be notified to the Court
under Article 40 of the Statute of the Court by either of the Contracting Parties.
Article IV
(a) The present Agreement shall be subject to ratification.
(b) The instruments of ratification shall be exchanged as soon as possible in Paris and
the present Agreement shall enter into force immediately upon the exchange of
ratifications.
In witness whereof the undersigned, being duly authorised thereto by their
respective Governments, have signed the present Agreement and have affixed thereto
their seals.
Done in duplicate in London, the 29th day of December, 1950, in English and
French, both texts being equally authoritative.
(L.S.) W. E. BEcKETT
(L.S.) MDRE GROS.
26 5
31.19.
Basing itself on this and other material, the International Law Commission
drew up in 1958 a set of Model Rules on Arbitral Procedure which the General
Assembly brought to the attention of Member States 'for their consideration
and use, in such cases and to such extent as they consider appropriate, in
drawing up treaties of arbitration or compromis. '28 Article 2 of the Model Rules
reads as follows:
'I.
Unless there are earlier agreements which suffice for the purpose, for example in the
undertaking to arbitrate itself, the parties having recourse to arbitration shall
conclude a compromis which shall specify, as a minimum:
(a) The undertaking to arbitrate according to which the dispute is to be submitted
to the arbitrators;
(b) The subject-matter of the dispute and, ifpossible, the points on which the parties
are or are not agreed;
(c) The method of constituting the tribunal and the number of arbitrators.
'2.
In addition, the compromis shall include any other provisions deemed desirable by the
parties, in particular:
(i) The rules oflaw and the principles to be applied by the tribunal, and the right,
if any, conferred on it to decide ex aequo et bono as though it had legislative
functions in the matter;
(ii) The power, if any, of the tribunal to make recommendations to the parties;
(iii) Such power as may be conferred on the tribunal to make its own rules of
procedure;
(iv) The procedure to be followed by the tribunal; provided that, once constituted,
the tribunal shall be free to override any provisions ofthe compromis which may
prevent it from rendering its award;
(v) The number of members required for the constitution of a quorum for the
conduct of the hearings;
(vi) The majority required for the award;
(vii) The time limit within which the award shall be rendered;
(viii) The right of the members of the tribunal to attach dissenting or individual
opinions to the award, or any prohibition of such opinions;
266
Treaties - III
Article
Compromis d'Arbitrage
267
Article 3
I. The Court shall, subject to the provisions of this Agreement, determine its own
procedure and all questions affecting the conduct of the arbitration.
2. In the absence of unanimity, the decisions of the Court on all questions, whether
of substance or procedure, shall be given by a majority vote ofits Members, including all
questions relating to the competence of the Court, the interpretation of this Agreement,
and the decision on the question specified in Article 2 hereof.
Article 4
The Parties shall, within fourteen days of the signature ofthe present Agreement,
each appoint an Agent for the purposes of the arbitration, and shall communicate the
name and address of their respective Agents to each other and to the Court.
2. Each Agent so appointed shall be entitled to nominate an Assistant Agent to act
for him as occasion may require. The name and address of any Assistant Agent so
appointed shall be similarly communicated.
I.
Article 5
The Court shall, after consultation with the two Agents, appoint a Registrar and
establish its seat at a place fixed in agreement with the Parties. Until the seat has been
determined the Court may meet at a place provisionally chosen by the President.
Article 6
The proceedings shall be written and oral.
2. Without prejudice to any question as to burden of proof, the Parties agree that
the written proceedings should consist of:
I.
(a) a Memorial to be submitted by each Party not later than six months after signature
of the present Agreement;
(b) a Counter-Memorial to be submitted by each Party within a time-limit of six
months after the exchange of Memorials;
(c) any further pleading found by the Court to be necessary.
The Court shaH have power to extend the time-limits so fixed at the request ofeither
Party.
3. The registrar shall notify to the Parties an address for the filing of their written
pleadings and other documents.
4. The oral hearing shall follow the written proceedings, and shall be held in private
at such place and time as the Court, after consultation with the two Agents, may
determine.
5. The parties may be represented at the oral hearings by their Agents and by such
Counsel and advisers as they may appoint.
Article 7
The pleadings, written and oral, shall be either in the English or in the French
language; the decisions of the Court shall be in both languages.
2. The Court shall, as may be necessary, arrange for translations and interpretations and shall be entitled to engage secretarial and clerical staff, and to make
arrangements in respect of accommodation and the purchase or hire of equipment.
I.
Article 8
The remuneration of Members of the Court shall be borne equally by the two
Governments.
I.
268
Treaties - III
The general expenses of the arbitration shall be borne equally by the two
Governments, but each Government shall bear its own expenses incurred in or for the
preparation and presentation of its case.
2.
Article 9
When the proceedings before the Court have been completed, it shall transmit to
the two Governments its decision on the question specified in Article 2 of the present
Agreement. The decision shall include the drawing of the course of the boundary (or
boundaries) on a chart. To this end, the Court shall be entitled to appoint a technical
expert or experts to assist it in preparing the chart.
2. The decision shall be fully reasoned.
3. If the decision of the Court does not represent in whole or in part the unanimous
opinion of the Members of the Court, any Member shall be entitled to deliver a separate
OpInIOn.
4. Any question ofthe subsequent publication ofthe proceedings shall be decided by
agreement between the two Governments.
I.
Article
10
I. The two Governments agree to accept as final and binding upon them the
decision of the Court on the question specified in Article 2 of the present Agreement.
2. Either party may, within three months of the rendering of the decision, refer to
the Court any dispute between the parties as to the meaning and scope of the decision.
Article
11
I. A Party wishing to carry out, at any time before the Court has rendered its
decision on the question specified in Article 2, any activity in a portion of what it
considers to be its continental shelf within the area submitted to arbitration shall,
subject to the remaining provisions ofthis Article, obtain the prior consent of the other
Party.
2. If such a request for consent is made by one Party the other Party may not
withhold its consent for more than one month nor, if it consents within this period,
subject its consent to conditions, except on the ground that the proposed activity relates
to an area which it intends to claim or might claim as part ofits own continental shelfat
any stage in the course of the arbitration.
3. The Party withholding consent or subjecting its consent to conditions shall, when
notifying the party making the request, briefly state the grounds upon which it justifies
its position.
4. The Party making the request may, if dissatisfied with the justification provided,
refer the issue to the Court for a ruling.
5. Without prejudice to paragraph 4, either party may refer any Jispute as to the
interpretation or application of this Article to the Court for a ruling.
6. The Court shall give, as soon as possible, a ruling on any issue referred to it
pursuant to paragraph 4 or 5, and may order such provisional measures as it considers
desirable to protect the interests of either Party.
Article
12
The present agreement shall enter into force on the date of signature.
In witness whereof the undersigned, duly authorised thereto by their respective
Governments, have signed the present Agreement.
Compromis d'Abitrage
269
Done in duplicate at Paris this tenth day ofJuly, 1975, in the English and French
languages, both texts being equally authoritative.
For the Government of the United Kingdom of Great Britain
and Northern Ireland
EDwARD E. TOMKINS
A close study of the text of this Arbitration Agreement reveals that it covers
most of the matters referred to in Article 2 of the Model Rules on Arbitral
Procedure drawn up by the International Law Commission.
31.21.
31.22.
CHAPTER 32
international instruments
-IV Ratification, Accession,
Acceptance and Approval
32.1.
32.2.
Ratification
32.3.
From the point of view of form, ratification constitutes a solemn act on the part
of a sovereign or by the president of a republic whereby he declares that a
treaty, convention or other international instrument has been submitted to him
and that after examining it he has given his approval thereto, and undertaken
Ratification
27 I
32.4.
32.5.
32.6.
IS
modified
When there are more than two contracting parties to a treaty, it is customary to
have but one original text of the treaty (in all language versions), which is
272
Treaties - IV
Ratification
273
32.9.
The second legal point relates to the purpose which ratification (and indeed
other forms of subsequent confirmation) is designed to serve. McNair explains
the position succinctly:
'Ratification is not (or, at any rate, since the days ofabsolute monarchs it has not been) a
mere formality, like the use of a seal, or parchment, or tape. Ratification has a value
which should not be minimized. The interval between the signature and the ratification
of a treaty gives the appropriate departments of the Governments that have negotiated
the treaty an opportunity of studying the advantages and disadvantages involved in the
proposed treaty as a whole, and of doing so in a manner more detached, more leisurely,
and more comprehensive than is usually open to their representatives while negotiating
the treaty. However careful may have been the preparation of their instructions, it
rarely happens that the representatives of both parties can succeed in producing a draft
which embodies the whole of their respective instructions; some concession on one side
and some element of compromise are present in practically every negotiation. It is
therefore useful that in the case of important treaties Governments should have the
opportunity of reflection afforded by the requirement of ratification. Moreover, the
more careful the preparation of the treaty and the more deliberate the decision to accept
it, the more likely is the treaty to be founded upon the interests of the parties and to be
observed by them.'ll
32. I o.
32. I I.
32. 12.
Finally, there are the related questions of which treaties require ratification
and which do not; and whether, assuming the treaty to be one which requires
ratification, there is any duty to ratify.
32. I 3.
The older view was that, in principle, all treaties required ratification in order
to become valid and binding. The International Law Commission have
explained the reasons for this view:
'The modern institution of ratification in international law developed in the course of
the nineteenth century. Earlier, ratification had been an essentially formal and limited
act by which, after a treaty had been drawn up, a sovereign confirmed, or finally
verified, the full powers previously issued to his representative to negotiate the treaty. It
was then not an approval of the treaty itself, but a confirmation that the representative
had been invested with authority to negotiate it and, that being so, there was an
obligation upon the sovereign to ratify his representative's full powers, ifthese had been
in order. Ratification came, however, to be used in the majority of cases as the means of
submitting the treaty-making power of the executive to parliamentary control, and
274
Treaties - IV
32.14.
32.15.
It is extremely doubtful, however, whether the traditional view still holds good.
Several leading modern authorities have taken the view that the necessity for
ratification is not inherent but depends essentially on the intention of the
parties to the particular treaty; and that present-day state practice shows that
treaties in which there is no clear evidence, express or implied, of the parties'
intentions as to the mode ofentry into force almost without exception enter into
force on signature. IS
32.16.
32.17.
3 2 18.
It used to be thought that heads of state were under a binding legal duty to
ratify treaties entered into by plenipotentiaries appointed by them, save in
those exceptional cases where the plenipotentiaries had exceeded the
instructions contained in their full powers. This view is, however, no longer
held. As Judge Moore said in the Mavrommatis Palestine Concessions case:
'The doctrine that Governments are bound to ratify whatever their plenipotentiaries,
acting within the limits of their instructions, may sign, and that treaties may therefore be
regarded as legally operative and enforceable before they have been ratified, is obsolete,
and lingers only as an echo from the past.'17
275
Ratification
32 19.
It is not customary to fix a time limit for ratification and, unless the treaty
provides otherwise, there is no rule oflaw as to the date within which, ifat all, it
must take place. Frequently several years may elapse between signature and
ratification. 20
Theform ofratification ofa treaty between heads ofstate given by Her Majesty in respect ofthe
United Kingdom of Great Britain and Northern Ireland.
(Seal)
2.
ELIZABETH
R.
The form of United Kingdom ratification of a bilateral treaty concluded between states
276
Treaties - / V
undertake faithfully to perform and carry out all the stipulations therein contained.
In witness whereof this Instrument of Ratification is signed and sealed by Her
Majesty's Principal Secretary of State for Foreign and Commonwealth Affairs.
Done at London the Fifth day ofSeptember, One thousand Nine hundred and Sixtynme.
(Signed) MICHAEL STEWART
(Seal)
3. Governmental ratification
WHEREAS a Cultural Convention was signed at London on the second day ofMay,
One thousand Nine hundred and Seventy-four, by representatives ofthe Government of
the United Kingdom of Great Britain and Northern Ireland and of the Government of
the Kingdom of Denmark, which Convention is, word for word, as follows:
(Texts)
The Government of the United Kingdom of Great Britain and Northern Ireland,
having considered the Convention aforesaid, hereby confirm and ratify the same and
undertake faithfully to perform and carry out all the stipulations therein contained.
In witness whereof this Instrument of Ratification is signed and sealed by Her
Majesty's Principal Secretary of State for Foreign and Commonwealth Affairs.
Done at London the First day of August, One thousand Nine hundred and Seventyfour.
(Signed) JAMES CALLAGHAN
(Seal)
Accession
32.21.
32.22.
Accession
277
(Art. 43); and that 'the present General Act shall come into force on the
ninetieth day following the receipt by the Secretary-General of the League of
Nations of the accession of not less than two Contracting Parties', (Art. 44).:!:!
The Revised General Act for the Pacific Settlement of International Disputes
adopted by the United Nations General Assembly on 28 April 1949 23 not
unnaturally follows the same pattern.
32.23.
Another example of the use of accession as the sole means whereby a state can
become party to a treaty is provided by the Convention on the Privileges and
Immunities of the United Nations approved by the United Nations General
Assembly on 13 February, 1946.24 Sections 31, 32 and 34 are the relevant
provisions and bear setting out in full:
'Section 3 I - This Convention is submitted to every Member of the United Nations for
acceSSIOn.
'Section 32 - Accession shall be effected by deposit of an instrument with the SecretaryGeneral of the United Nations and the Convention shall come into force as regards each
Member on the date of deposit of each instrument of accession.
'Section 34 - It is understood that, when an instrument ofaccession is deposited on behalf
of any Member, the Member will be in a position under its own law to give effect to the
terms of this Convention.'
Similar, but slightly more complex, provisions are contained in the Convention
on the Privileges and Immunities of the Specialised Agencies of the United
Nations adopted by the United Nations General Assembly on 21 November
1947. Again, accession is the only means whereby a state can become a party to
this Convention, but each state party is required to indicate in its instrument of
accession the specialised agency or agencies in respect of which it undertakes
to apply the provisions of the Convention (with an option to make su bsequent
notifications covering further specialised agencies). 25
32 2 4.
Article 82 then provides that the Convention is subject to ratification and that
the instruments of ratification shall be deposited with the Secretary-General of
the United Nations. Finally, and in order to enable these states which have not
signed the Convention by the terminal date specified in Article 8 I to become
parties thereto, Article 83 stipulates that:
'The present Convention shall remain open for accession by any State belonging to any
278
Treaties - I V
32.25.
32.26.
By virtue of a Protocol of 17 October 195 1,33 the Parties to the North Atlantic
Treaty gave their unanimous consent to the despatch ofan invitation to Greece
Accession
279
and Turkey to accede to the Treaty, Article I of the Protocol providing that:
'Upon the entry into force of this Protocol, the Government of the United States of
America shall, on behalf of all the Parties, communicate to the Government of the
Kingdom of Greece and the Government of the Republic of Turkey an invitation to
accede to the North Atlantic Treaty, as it may be modified by Article 11 of the present
Protocol. Thereafter the Kingdom of Greece and the Republic of Turkey shall each
become a Party on the date when it deposits its instrument of accession with the
Government of the United States of America in accordance with Article ID of the
Treaty.'
32.28.
The nature of a treaty may be such that the contracting parties may wish to
subject an invitation to a state to accede to conditions to be agreed between
them and the state so invited. Thus, Article IX of the Treaty of Economic,
Social and Cultural Collaboration and Collective Self-Defence, signed at
Brussels on 17 March 194835 (popularly known as the 'Brussels Treaty')
provided that:
'The High Contracting Parties may, by agreement, invite any other State to accede to
the present Treaty on conditions to be agreed between them and the State so invited.
'Any State so invited may become a party to the Treaty by depositing an instrument
of accession with the Belgian Government.
'The Belgian Government will inform each of the High Contracting Parties of the
deposit of each instrument of accession.'
'2.
3 2 .3 0 .
Membership in the United Nations is open to all other peace-loving States which
accept the obligations contained in the present Charter and, in thejudgement ofthe
Organisation, are able and willing to carry out these obligations.
The admission of any such State to membership in the United Nations will be
effected by a decision of the General Assembly upon the recommendation of the
Security Counci1'37
280
Treaties - IV
In the case of Denmark, Ireland and the United Kingdom, which applied in
1970 to become members of the three European Communities (that is to say,
the European Economic Community, EURATOM and the European Coal
and Steel Community), the conditions of admission and the adjustments to
the Treaties were established after laborious negotiations culminating in the
signature, on 22 January 1972, of the Treaty concerning the accession of the
new Member States to the European Economic Community and EURATOM
and the parallel Decision of the Council concerning their accession to the
European Coal and Steel Community. Article I of the Treaty of Accession
provides that:
'I.
'2.
The Kingdom of Denmark, Ireland ... and the United Kingdom of Great Britain
and Northern Ireland hereby become members of the European Economic
Community and Parties to the Treaties establishing these Communities as amended
and supplemented.
The conditions of admission and the adjustments to the Treaties establishing the
European Economic Community and the European Atomic Energy Community
necessitated thereby are set out in the Act annexed to this Treaty. The provisions of
that Act concerning the European Economic Community and the European
Atomic Energy Community shall form an integral part of this Treaty.'
32.3 I.
In a case such as this, where the new member state isjoining a 'going concern'
(to use Fitzmaurice's phrase) and where the constitutive treaties have theirown
inbuilt dynamic, accession (or admission) may be rendered possible on terms
which put the new member state in a different position from the other
contracting parties, at least for a transitional period. Normally speaking,
however, any state exercising the right of accession given to it in a treaty enjoys
the same rights and becomes subject to the same obligations as the other
contracting parties, whether original signatories or states who have
subsequently acceded. Accordingly, in principle, and unless the particular
treaty otherwise provides, the legal effect of accession is the same in all respects
as that of ratification, and there is no difference of any kind as regards the
status, rights and obligations of states participating by way of accession as
compared with those of states participating by way of signature followed by
ratification.
32.32.
Accession
28 I
Finally it is necessary to say a few words about which states may accede to a
treaty. It would seem beyond dispute that no state, uninvited, has a right by
means of accession to make itself a party to a treaty between two or more other
states; and that, accordingly, accession can only take place when the original
parties to the treaty consent, either generally by means of a provision in the
treaty or ad hoc, and only upon the conditions laid down by them for accession. 40
But this does not entirely dispose of the problem. It has been suggested that the
principle of universality imperatively requires that all states should be entitled
to participate in general multilateral treaties, defined for this purpose as
treaties which concern general norms of international law or which deal with
matters of general interest to states as a whole. A proposal to this effect was
advanced at the Vienna Conference on the Law of Treaties by a group of
Eastern European and non-aligned states. 41 The proposal was, however,
rejected by the Conference mainly on the ground that it ran contrary to the
principle that states are, and should be, free to choose their treaty partners. 42
32.34.
32.35.
282
Treaties - IV
32.37.
32.38.
'2.
This Agreement shall remain open until I December, 1956, for signature by the
Governments named in the Preamble.
This Agreement shall be subject to acceptance by the signatory Governments.
Instruments of acceptance shall be deposited as soon as possible with the SecretaryGeneral, who shall inform all signatory and acceding Governments of the date of
deposit of each such instrument.'
283
32.40.
The advantage ofa provision for acceptance in a treaty is that it may enable the
treaty to enter into force earlier than if the treaty had provided for 'ratification'
eo nomine. The constitutional procedures ofsome states require the assent ofthe
legislature before a treaty can be formally ratified, and it may be possible to
accomplish the process of 'acceptance' by executive action alone. 48
32-41.
32.42.
What has been said above about 'acceptance' applies mutatis mutandis to
'approval,' whose introduction into the terminology of treaty-making is even
more recent than that of 'acceptance.' 'Approval' appears more often in the
form of 'signature subject to approval,' where, according to Liang, approval is
apparently used 'to indicate the approbation, by the process of municipal law,
of the terms ofa treaty, as contradistinguished from "acceptance" which is used
to indicate the formal act evidencing the actual acceptance of the treaty by the
State. '49 The opening of a treaty to 'approval' without signature appears to be
rare. 50
CHAPTER 33
Reservations
33. 2 .
Reservations
33.3.
285
33.4.
Where the particular treaty specifies whether, and if so what, reservations can
be made, the terms of the treaty will prevail; and, in the case of treaties
concluded under the auspices of certain international organisations, 'reservations' clauses, varying in their formulation and effect, are a standard feature.
The practice of the Council of Europe affords a good illustration of the variety
of 'reservations' clauses which may be found in multilateral conventions: all
these 'reservations' clauses were, of course, agreed upon by the negotiating
states within the framework of the negotiations and then incorporated in the
final text of the particular convention.
33.5
'2.
33. 6 .
The High Contracting Parties may only make reservations which exclude from the
application of this Convention disputes concerning particular cases or clearly
specified subject matters, such as territorial status, or disputes falling within clearly
defined categories. If one of the High Contracting Parties has made a reservation,
the other Parties may enforce the same reservation in regard to that Party.
Any reservation made shall, unless otherwise expressly stated, be deemed not to
apply to the procedure of conciliation.'
Annex 11 then lists sixteen precisely formulated reservations (for example, 'to
exempt from compulsory insurance damages for pain and suffering') which a
contracting party may make. Similar provisions will be found in the European
Convention providing a Uniform Law on Arbitration, done at Strasbourg on
20 January 1966.6 where Annex 11 to the Convention lists fifteen precisely
formulated reservations, and in the European Convention on Consular
Functions, done at Strasbourg on I I December 1967,7 where Annex I to the
286
Treaties - V
33. 8.
197 0 . 11
33.9.
33. 10 .
It maybe said at the outset that the area of controversy, at least in modern
times, has largely been confined to the cases of those multilateral conventions
which contain no 'reservations' clauses and are therefore silent on the question
of reservations. 12 In the case of negotiations for a bilateral treaty, the question of
reservations rarely arises since it is generally accepted that an attempt by one of
the two negotiating states unilaterally to vary the terms of the agreed text after
the conclusion of the negotiations will simply mean that negotiations will have
to be resumed so that consensus ad idem can be reached on the text. As Reuter
puts it: 13
'En effet, bien que techniquement possible pour un traite bilateral, la "reserve" ne
constitue pas dans le cadre de ce dernier une figure juridique pratique, ni originale, car
die se ramene cl rouvrir apres leur cUhure les negociations.'
Reservations
287
Traditionally, the generally accepted view was that a state which sought
subsequently to attach a reservation to a multilateral convention the text of
which had been established ne varietur could only do so with the assent of the
other parties or potential parties to the convention. This view was based inter
alia on the practice of the League of Nations. In 1927, a problem had arisen in
connection with the Convention of 19 February 1925 for the Suppression ofthe
Illicit Traffic in Dangerous Drugs (popularly referred to as the Second Opium
Convention). Austria, who had not participated in the negotiations leading up
to the establishment of the text of the Convention, had been invited to sign it;
and duly tendered a signature accompanied by a reservation in respect of
certain clauses. The Committee of Experts for the Progressive Codification of
International Law was thereupon instructed to review the question of the
admissibility of such reservations and, on 17 June 1927 tendered a report, the
gist of which is contained in the following passage:
'In order that any reservation whatever may be validly made in regard to a clause ofthe
treaty, it is essential that this reservation should be accepted by all the contracting
parties, as would have been the case if it had been put forward in the course of the
negotiations. If not, the reservation, like the signature to which it is attached, is null and
void. '14
33.12.
It will be noted that there was a close link between the unanimity rule for the
establishment of the text ofa multilateral convention and the unanimity rule for
the admissibility of reservations to that text. So long as it was accepted that the
text of a multilateral convention could be established only by the unanimous
agreement of the participating states, so long was it understood that subsequent
reservations to that text required, in order to be accepted as valid, the
unanimous consent of the parties to the convention. 15
(a) as between states which ratify a treaty without reservations, the treaty
applies in the terms in which it was originally drafted and signed;
(b) as between states which ratify a treaty with reservations and states which
288
Treaties - V
accept those reservations, the treaty applies in the form in which it may be
modified by the reservations; and
(c) as between states which ratify a treaty with reservations and states which,
having already ratified, do not accept those reservations, the treaty will not
be in force. 17
33. I 4.
2.
to
five, in response to
that a state which has made and maintained a reservation which has been
objected to by one or more of the parties to the Convention but not by others,
can be regarded as being a party to the Convention if the reservation is
compatible with the object and purpose of the Convention; otherwise, that
state cannot be regarded as being a party to the Convention.
The Court further held, again by a majority ofseven votes to five, in response to
question 2:
(a) that if a party to the Convention objects to a reservation which it considers
to be incompatible with the object and purpose of the Convention, it can in
fact consider that the reserving state is not a party to the Convention; and
(b) that if, on the other hand, a party accepts the reservation as being
compatible with the object and purpose of the Convention, it can in fact
consider that the reserving state is a party to the Convention.
This sibylline pronouncement was initially greeted with less than enthusiasm.
The advisory opinion was exposed to penetrating criticism by Fitzmaurice l9
and others, particularly on the ground that the 'compatibility' test as
formulated by the Court would prove to be unworkable in practice, and was in
any event fundamentally subjective and uncertain in its application.
33. I 5
Reservations
28 9
33. 1 7.
33 18.
2.
33.19.
In the context of its work on the law of treaties in general, the Commission had
to keep the question of reservations to multilateral conventions under review;
and, in the course of its subsequent consideration ofthe topic, it is clear that the
Commission underwent a change of heart. This change of heart is no doubt
primarily attributable to the very rapid expansion of the international
community since 1951 with the consequence that 'the very number of potential
participants in multilateral treaties now seems to make the unanimity principle
less appropriate and less practicable. 'l!5 With this consideration in mind, the
29 0
Treaties - V
33.20.
Reservations
Article
29 I
20
33.2 I.
It will be seen that, broadly speaking, the 'flexible' system proposed by the
Commission in 1962 forms the basis of the Convention regime on reservations.
The most significant departure from the Commission's proposals is the reversal
of the rule concerning the legal effect of an objection to a reservation (Art.
20(4)(b) ). The Commission had proposed that an objection to a reservation
should preclude the entry into force of a treaty as between the objecting and
reserving states unless a contrary intention was expressed by the objecting state.
The conference, on the basis of a proposal by the Soviet Union at the second
session, put the onus on the objecting state to declare positively that its
292
Treaties - V
objection had the effect of precluding the entry into force ofthe treaty between
the two States concerned. 29
Comment
33.22.
Notice of TerlDination
33.23.
Notice of Termination
293
'This Agreement shall enter into force upon signature by both Contracting parties and
shall remain in force until 31 December, 1974.'
All the examples so far given are of treaties which come to an end by operation
of their own terms; they are perhaps more accurately characterised as examples
of expiry clauses than of termination clauses.
33.24.
As to termination stricto sensu (by which is meant action by one or more of the
contracting parties to bring a particular treaty to an end during the period
when it remains in force), it is necessary to distinguish between termination ofa
treaty through the application of its own provisions and termination ofa treaty
otherwise than through the application of its own provisions.
I.
33. 2 5.
The majority of modern treaties contain clauses which provide for a right to
denounce or withdraw from the treaty upon the giving of a specified period of
notice. In these cases the termination of the treaty or the termination of the
participation of a contracting party in the treaty is brought about by the
provisions of the treaty itself, and when this may happen is essentially a
question of interpreting and applying the treaty. As the International Law
Commission have pointed out:
'The treaty clauses are very varied. Many treaties provide that they are to remain in
force for a specified period of years or until a particular date or event; others provide for
the termination of the treaty through the operation of a resolutory condition.... More
common in modern practice are treaties which fix a comparatively short initial period
for their duration, such as five or ten years, but at the same time provide for their
continuance in force after the expiry ofthe period subject to a right of denunciation or
withdrawal. These provisions normally take the form either ofan indefinite continuance
in force of the treaty subject to a right of denunciation or withdrawal on six or twelve
months' notice, or of a renewal of the treaty for successive periods of years subject to a
right of denunciation or withdrawal on giving notice to that effect six months before the
expiry of each period. Some treaties fix no period for their duration and simply provide
for a right to denounce or withdraw from the treaty, either with or without a period of
notice. Occasionally, a treaty which fixes a single specific period, such as five or ten
years, for its duration allows a right of denunciation or withdrawal even during the
currency of the period.'H
33.26.
294
Treaties - V
widely in their form and effect. The following examples illustrate the types of
clauses which may be found in modern treaties. The examples are not intended
to be exhaustive, but simply to demonstrate the more usual forms ofwithdrawal
or denunciation clause currently in use.
33.27.
Occasionally, the treaty may stipulate a much longer initial period ofduration,
with a right of withdrawal or denunciation only accruing to a party after the
expiry of this period. Thus, Article 13 of the North Atlantic Treaty, signed at
Washington on 4 April 1949, provides that:
'After the Treaty has been in force for twenty years, any party may cease to be a party
one year after its notice ofdenunciation has been given to the Government ofthe United
States of America, which will inform the Governments ofthe other Parties ofthe deposit
of each notice of denunciation. '36
33.28.
33.29.
'2.
Notice of Termination
'3.
295
'2.
In particular cases (and this depends essentially upon the nature ofthe treaty in
question), a party wishing to exercise a right of withdrawal or denunciation
may have to show special cause. Thus, the Nuclear Test Ban Treaty, signed at
Moscow on 5 August 196340 and the Treaty on the Non-Proliferation of
Nuclear Weapons, opened for signature in London, Moscow and Washington
on 1 July 1968, contain similar clauses covering the right of withdrawal for
special cause. It is sufficient for the purposes of illustration to cite Article X( I) of
the Non-Proliferation Treaty, which reads as follows:
'Each Party shall in exercising its national sovereignty have the right to withdraw from
the treaty if it decides that extraordinary events, related to the subject matter of this
Treaty, have jeopardized the supreme interests of its country. It shall give notice ofsuch
withdrawal to all other Parties to the Treaty and to the United Nations Security
Council three months in advance. Such notice shall include a statement of the
extraordinary events it regards as having jeopardized its supreme interests. '41
2.
33.30.
33.31.
296
33.32.
Treaties - V
The presumption is not, however, an absolute one, since there may be evidence
that the parties to the treaty intended to admit a right of unilateral termination
upon notice: equally, the nature of the treaty itself may be such as to imply the
existence of a right of unilateral termination upon notice. Article 56( I) of the
Vienna Convention on the Law of Treaties accordingly provides that:
'A treaty which contains no provision regarding its termination and which does not
provide for denunciation or withdrawal is not subject to denunciation or withdrawal
unless:
(a) it is established that the parties intended to admit the possibility of denunciation or
withdrawal; or
(b) a right of denunciation or withdrawal may be implied by the nature of the treaty.'
Brierly takes the view that there are certain types of treaty which, from the
nature of the subject-matter or the circumstances in which they are concluded,
may be presumed to be susceptible of denunciation even though they contain
no express term to that effect: and he cites a modus vivendi as an obvious
illustration, adding that 'treaties of alliance and commerce are probably in the
same case, though in practice such treaties ordinarily have a fixed period of
duration. '45
3333
It is, however, only too easy for controversy to arise when a state purports
unilaterally to terminate a treaty which contains no provision on withdrawal or
denunciation with or without the giving of notice. An interesting recent
example of controversy of this nature stems from the action ofthe Government
of Senegal 46 in transmitting to the Secretary-General of the United Nations, on
9 June 197 1, a Note denouncing the 1958 Geneva Convention on the
Territorial Sea and the Contiguous Zone and the 1958 Convention on Fishing
and Conservation of the Living Resources of the High Seas. Senegal had
acceded to these two Conventions on 25 April 1961. None of the four Geneva
Conventions on the Law of the Sea adopted in 1958 contains a denunciation
clause. Indeed, proposals at the 1958 Law of the Sea Conference to include a
'denunciation' clause in the 'codifying' conventions and also in the Convention
on Fishing and Conservation of the Living Resources of the High Seas were
heavily defeated on two separate votes. Despite this history, Senegal sought to
exercise a right of unilateral denunciation in relation to the two 1958 Law ofthe
Sea Conventions to which she had become a party. This gave rise to an
exchange of correspondence between the Government of Senegal and the
United Nations Secretary-General (in his capacity as depositary), correspondence which was subsequently circulated by the Secretary-General to all states
entitled to become parties to the conventions concerned. 47 It may be noted
Notice of Termination
297
that, on 2 June 1973, the United Kingdom Government sent a Note to the
Secretary-General (in his capacity as depositary) which stated inter alia:
'As regards the notification by the Government of Senegal purporting to denounce the
two Conventions of 1958, the Government of the United Kingdom wish to place on
record that in their view those Conventions are not susceptible to unilateral
denunciation by a State which is a party to them and they therefore cannot accept the
validity or effectiveness of the purported denunciation by the Government of Senegal.
Accordingly, the Government of the United Kingdom regard the Government of
Senegal as still bound by the obligations which they assumed when they became a party
to those Conventions and the Government ofthe United Kingdom fully reserve all their
rights under them as well as their rights and the rights oftheir nationals in respect ofany
action which the Government ofSenegal have taken or may take as a consequence ofthe
said purported denunciation. '48
33.34.
33.35.
It is against this background that one must assess the significance of the
Indonesian action in 1965 in seeking unilaterally to withdraw from the United
Nations. By letter dated 20 January 1965, the Indonesian Deputy Prime
Minister and Minister ofForeign Affairs informed the Secretary-General ofthe
United Nations that, in consequence of the election of Malaysia to one of the
non-permanent seats on the Security Council, his Government 'felt that no
alternative had been left for Indonesia but withdrawal from the United
Nations.'51
33.36.
298
Treaties - V
33.37
It has been rightly pointed out that the Secretary-General's reply was noncommittal on the question of the validity of the Indonesian action: and that,
indeed, the concluding sentence 'was clearly drafted in such a way that it might
be interpreted to mean that Indonesia had not ceased to be a member because a
non-member could not "resume full co-operation" unless it had been admitted
or, in this case, re-admitted to the Organisation. '53
33.38.
A note from the Italian Government of 13 May 1965,55 was expressed in more
general terms. The Italian Government felt it necessary 'to voice its
apprehension over the disquieting consequences for the United Nations
resulting from the absence of any mention in the Charter of such an important
point as withdrawal or recession of a Member State from the Organisation.'
With reference to the San Francisco commentary on withdrawal, the Italian
Government took the view that it was 'not entirely adequate' since it did not
'contain any definition of the circumstances which might justify the
withdrawal or recession of a Member State,' nor did it specify any procedure
for determining those circumstances in the future. Furthermore, the
commentary did not indicate any procedure whereby the withdrawal of a
member state might be considered effective. The Italian Note expressed the
hope 'that in the near future it will be possible to undertake an appropriate
study of the problem in general terms.'
33.40 .
Notice of Termination
299
No objection having been raised to the President's statement, the representatives of Indonesia were invited to take their seats in the General Assembly, and
the Secretary-General took action on the lines suggested.
33.42.
There can be little doubt that the manner in which this episode was concluded
revealed a desire on all sides to skate over the difficulties presented by the
Indonesian action of January 1965.58 Notwithstanding the clear and
unambiguous terms of the Indonesian letter of 20 January 1965, it was possible
for the Secretary-General, and indeed for the generality of the membership, to
take the view that the bond of membership between Indonesia and the United
Nations had not been interrupted; and this was the l;>asis upon which it was
eventually accepted that Indonesia should 'resume full participation in the
activities of the United Nations.'59
33.43
300
33.44.
Treaties - V
Breach
A material breach of a bilateral treaty by one of the parties entitles the other to
invoke the breach as a ground for terminating the treaty or suspending its
operation in whole or in part. 61 A material breach of a multilateral treaty by
one of the parties entitles:
the other parties by unanimous agreement to suspend the operation of the treaty
in whole or in part or to terminate it either:
(a) in the relations between themselves and the defaulting state, or
(b) as between all the parties;
2. a party especially affected by the breach to invoke it as a ground for suspending the
operation of the treaty in whole or in part in the relations between itself and the
defaulting state; and
3. any party other than the defaulting State to invoke the breach as a ground for
suspending the operation of the treaty with respect to itself if the treaty is ofsuch a
character that a material breach of its provisions by one party radically changes the
the position of every party with respect to the further performance of its obligations
under the treaty. 62
I.
33.45.
In recent years, the International Court ofJustice has had occasion to consider
the consequences of material breach of a multilateral treaty in two separate
cases. In its Advisory Opinion in the Namibia (South West Africa) case,63 the
Court stated:
'94. The rules laid down by the Vienna Convention on the Law ofTreaties concerning
termination of a treaty relationship on account of breach (adopted without a
dissenting vote) may in many respects be considered as a codification of existing
customary law on the subject. In the light ofthese rules, only a material breach ofa
treaty justifies termination, such breach being defined as:
(a) a repudiation of the treaty not sanctioned by the present Convention; or
(b) the violation of a provision essential to the accomplishment of the object or
purpose of the treaty.' (Art. 60, para. 3.)
'95. General Assembly Resolution 2145 (XXI) determines that both forms of material
breach had occurred in this case. By stressing that South Africa "has in effect
disavowed the Mandate," the General Assembly declared that it had in fact
repudiated it. The resolution in question is therefore to be viewed as the exercise of
the right to determine a relationship in case of a deliberate and persistent violation
of obligations which destroys the very object and purpose of that relationship.'M
33.46 .
In the Appeal relating to the Jurisdiction of the ICA 0 Council (India v. Pakistan)
case,65 the issue of the right of a state unilaterally to terminate or suspend
multilateral treaties for breach arose in two ways: in regard to the jurisdiction
of the ICAO Council and in regard to the jurisdiction of the International
Court itself. For present purposes, it is sufficient to note the Court's statement
that:
'... India's allegation ofa material breach ofthe treaties by Pakistan, asjustifying India
in treating them as terminated or suspended, is inherently and by its very nature, one
that must involve an examination ofthe treaties in order to see whether, according to the
definition of a material breach of treaty contained in Article 60 of the 1969 Vienna
Convention on the Law of Treaties, there has been (paragraph 3(b)) a violation by
Pakistan of "a provision essential to the accomplishment of the object or purpose of the
treaty." 'bb
.Notice of Termination
33.47
301
Impossibility of performance
Article 61 (I) of the Vienna Convention on the Law of Treaties stipulates that:
'A party may invoke the impossibility ofperforming a treaty as a ground for terminating
or withdrawing from it if the impossibility results from the permanent disappearance or
destruction of an object indispensable for the execution ofthe treaty. Ifthe impossibility
is temporary, it may be invoked only as a ground for suspending the operation of the
treaty. '
33.48.
33.49
There have been relatively few cases in which the doctrine of rebus sic stantibus
has been invoked before an international tribunal and in no case has the right
to terminate a treaty on the ground of fundamental change of circumstances
been upheld. Thus, in the case of the Free Zones of (lpper Savo..y and the District of
Gex 69 (France v. Switzerland), the Permanent Court of International Justice had
to consider a French argument that certain treaty stipulations dating from
1815 had lapsed. The Court held that it would have been necessary for France
to prove that it was in consideration of the absence ofcustoms duties at Geneva
302
Treaties - V
that the Powers decided, in 1815, in favour of the creation of the zones. This
France was unable to do. Consequently, the Court affirmed, the French
argument on this point:
'... fails from lack of proofthat the zones were in fact established in view ofthe existence
of circumstances which ceased to exist when the Federal Customs were instituted in
1849.'70
33.50 .
33.5 I.
The Court then went on to analyse the Icelandic claim in detail. It noted that
Iceland had relied on developments in fishing techniques leading to overexploitation of the waters around Iceland as affecting the 'vital interests' of
Iceland, and commented that this 'would correspond to the traditional view
that the changes of circumstances which must be regarded as fundamental or
vital are those which impair the existence or vital development of one of the
parties. '74 However, the Court likewise noted that the United Kingdom
contested the 'fundamental' or 'vital' nature ofthe changes invoked by Iceland.
Relying on the fact that, at the jurisdictional stage, it was not necessary to enter
into the merits of the dispute, the Court concluded:
'But the alleged changes could not affect in the least the obligation to submit to the
Court's jurisdiction, which is the only issue at the present stage of the proceedings. It
follows that the apprehended dangers for the vital interests of Iceland, resulting from
changes in fishing techniques, cannot constitute a fundamental change with respect to
.Notice of Termination
303
33.52.
The Court also denied that the change of circumstances invoked by Iceland
had resulted in a radical transformation of the extent of obligations still to be
performed, pointing out that:
'The present dispute is exactly ofthe character anticipated in the compromissory clauses
of the Exchange of Notes. Not only has the jurisdictional obligation not been radically
transformed in its extent; it has remained precisely what it was in 1961.'76
33.53.
Finally, the Court referred favourably to a United Kingdom argument that the
doctrine of change of circumstances never operates so as to extinguish a treaty
automatically or to allow an unchallengeable unilateral denunciation by one
party; it only operates (if the asserted right of termination is challenged) 'to
submit the dispute to some organ or body competent to determine whether the
conditions for the operation of the doctrine are present.' In commenting on this
argument, the Court noted that, in the instant case, 'the procedural
complement to the doctrine of changed circumstances is already provided for
in the 1961 Exchange of Notes.'??
3355
Any notice of termination given under a treaty must comply with the
conditions specified in the treaty and must be given in the circumstances and
manner therein indicated. It is not sufficient to announce termination or
withdrawal or to publish a notice of it in the press.
33.56.
33.57.
304
33.58 .
Treaties - V
Registration
33.59.
Article
'I.
'2.
33.60.
102
Every treaty and every international agreement entered into by any Member ofthe
United Nations after the present Charter comes into force shall as soon as possible be
registered with the Secretariat and published by it.
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.'
Every treaty or international agreement, whatever its form and descriptive name,
entered into by one or more Members of the United Nations after October 24, 1945,
the date of the coming into force ofthe Charter, shall as soon as possible be registered
with the Secretariat in accordance with these regulations.
2. Registration shall not take place until the treaty or international agreement has
come into force between two or more of the parties thereto.
3. Such registration may be affected by any party or in accordance with article 4 of
these regulations.
4. The Secretariat shall record the treaties and international agreements so registered
in a Register established for that purpose.'
I.
Article 3
I. Registration by a party, in accordance with article 1 of these regulations, relieves all
other parties of the obligation to register.
2. Registration effected in accordance with article 4 of these regulations relieves all
parties of the obligation to register.'
Article 4
I. Every treaty or international agreement subject to article 1 ofthese regulations shall
be registered ex officio by the United Nations in the following cases:
(a) Where the United Nations is a party to the treaty or agreement:
(b) Where the United Nations has been authorised by the treaty or agreement to
effect registration.
2. A treaty of international agreement subject to article 1 of these regulations may be
registered with the Secretariat by a specialised agency in the following cases:
(a) Where the constituent instrument of the specialised agency provides for such
registration;
Registration
305
(b) Where the treaty or agreement has been registered with the specialised agency
pursuant to the terms of its constituent instrument;
(c) Where the specialised agency has been authorised by the treaty or agreement to
effect registration.'
33.61.
(a) Treaties or international agreements entered into by the United Nations or by one
or more of the specialized agencies;
(b) Treaties or international agreements transmitted by a member of the United
Nations which were entered into before the coming into force of the Charter, but
which were not included in the treaty series of the League of Nations;
(c) Treaties or international agreements transmitted by a party not a Member ofthe
United Nations which were entered into before or after the coming into force ofthe
Charter which were not included in the treaty series of the League of Nations,
provided however, that this paragraph shall be applied with full regard to the
provisions of the resolution of the General Assembly of 10 February 1946 set forth in
the Annex to these regulations.'
33.62.
33.63.
BOOK V
International
organisations
Chapter 34
35
36
37
38
39
40
41
42
43
44
343
347
35 6
368
380
39 1
43 8
44 2
CHAPTER 34
In the Preface to this edition, brief reference was made to the startling changes
which in modern times have affected the pace and methods ofdiplomacy. One
of the chief consequences is the enormous increase in the amount ofdiplomacy
by conference. This is not restricted to Viennas and Berlins. The age has given
birth to an entirely new phenomenon, diplomacy by conference based on
permanent organisations meeting regularly and serviced not by officials of
member governments or of the government of the country in which the
conference is held, but by independent international staffs of their own.
34.2.
The first example of such a permanent institution was probably the Universal
Postal Union, set up as a consequence of the Berne Conference on postal
matters in 1874. This was a highly suitable field in which to start this new kind
of work. There was plenty to argue about at the technical level, but political
differences were not involved in the subject-matter, nor in a relatively tranquil
age were they brought in for purposes other than those of the organisation as
such.
343
For the discussion of political matters, there was in the nineteenth century no
movement towards setting up a permanent organisation. It was tacitly assumed
that the affairs of Europe, on which world peace and war almost entirely
depended, could and would be successfully regulated by the Concert of
Europe, and that inter-imperial problems could be settled amicably by the
imperial Powers. This assumption, however, suffered a few shocks such as the
Anglo-French confrontation in 18g8 at Fashoda. The nearest practical
approach to the concept ofan international organisation to maintain peace was
probably the First Hague Conference of I 8gg which established the Permanent
Court of Arbitration.
34.4.
In 1914, however, the Concert of Europe, having modified itself into the
Balance of Power, broke down in the ultimate cacophony of war. 1 The
destruction of the old system in Germany, Austria and Russia was so complete
as to be a little hard to grasp even now. But we are less concerned with that
convulsion than with the attempt made to provide a policy and an
administrative remedy. It was only the relative isolation of the United States,
followed in I 9 17 by a sudden access of recognised world power, combined with
the character and convictions of President Woodrow Wilson, that made it
possible for him to believe and the world experimentally to accept that a totally
new method of conducting international relations was feasible. 2
3 10
34-5.
CHAPTER 35
We shall come back briefly to the League of Nations when we examine the
institutions and procedures of its successor. But it may help to give life to
analysis if an attempt is first made to describe some ofthe differences in the way
of life and of doing business between service at the seat of an international
organisation and service at a national capital in a diplomatic mission accredited
to the government in that capital. We shall take membership of a national
delegation to the United Nations in New York as a prototype. But the
principles apply in some degree to all resident missions to the headquarters of
permanent intergovernmental organisations with international secretariats.
They apply broadly to an organisation such as the International Atomic
Energy Authority at Vienna, to a branch of the United Nations itself, such as
the European Office at Geneva, to a defence organisation such as NATO in
Brussels, or such as that of the Warsaw Pact, or, in a slightly different way, to
the Organisation of African Unity, which has a permanent headquarters in
Addis Ababa but holds its Conference in different countries by invitation.
35. 2 .
The differences of diplomatic method and style apply with particular force
during meetings at the broad political level, such as sessions ofthe UN General
Assembly. But much of what follows illustrates a way oflife which in any case
has to accommodate itself to the routine, or sometimes lack of routine, of
plenary meetings.
35.3.
35.4.
312
United Nations Building on First Avenue, its inhabitants and its regular
visitors. Thus, while geographically in the United States, he is in the
professional sense not 'of it. He may have the good fortune to make American
friends outside the United Nations world, but he will not have much time to
spend with them, because the curious amalgam of friendship and duty which
constitutes diplomacy will decree that his business (and pleasure or suffering)
will be with a large number of specialised people from anything up to 150
countries.
35.5.
Style of work
35. 6 .
Another important difference is in the style of work. Since the Assembly has
many subsidiary bodies, permanent or temporary, a diplomat serving in a
delegation will attend a great many meetings - again unlike normal diplomatic
proceedings in most national capitals. A proportion of these meetings, such as
Committees of the General Assembly, will be in public. Normally the press will
not be there, but if there is a flare-up, it will certainly appear. In that case the
diplomat needs the capacity to think and talk not only in the diplomatic but
also in the political and public relations dimension. He may well need not only
to master his brief as a diplomatic representative but also to handle it in public
like a politician.
35.7
35.8.
Style ofwork
35.9.
35. 10.
35. I
I.
35. I 2.
313
314
35. 1 3.
But given the expense ofdiplomacy and, in many cases, a shortage of personnel,
a small newly emerging state cannot possibly think in terms of a delegation,
whether permanent or appointed for the duration of an Assembly Meeting,
strong enough in quality and quantity to master the whole political, economic
and judicial front, or the mass of documentation. There are for such countries
two principal recourses, block voting, and concentration on a few matters of
special interest to a particular country.
35.14.
Block voting as a system was practised both at the San Francisco Conference
and at the Preparatory Commission Sessions in London before the First
General Assembly Meeting. The Soviet orientated Communist countries
practised it from the beginning. The Latin American countries formed a
natural block in the early stages, though differing internal policies later
modified their solidarity. The Arabs and Asians formed an early alliance but,
again, differing political stances limited its completeness, though the Palestine
question always produced Arab solidarity. Unity between Africans, Caribbean
countries and Asians is naturally produced by any discussion involving the
colour problem. Block voting (and in some cases the absence ofit) does produce
'lobbying,' a word with a slightly ugly connotation. However, so long as it
avoids intimidation or corruption, lobbying can be accepted as a natural
process of persuasion in the lobbies and on the telephone.
35.15.
35.16.
The other recourse of medium and small powers is to concentrate energy and
money on problems of special interest to them. A classic case was the decision of
the Spanish Government in 1967 to use all the diplomatic resources available to
press the Spanish claim for the re-establishment of Spanish authority over
Gibraltar, lost to Britain in 1704. The result of this pressure was an Assembly
Resolution which recommended. in the name of anti-colonialism, the handing
over of the people of Gibraltar, who did not want it, to a regime of which the
vast majority of the Assembly disapproved. A result containing so much inner
contradiction helps to explain why, despite widespread feelings ofreluctance at
the time, the drafters of the United Nations Charter insisted on confining the
Assembly's power to that of recommendation. None the less, from the Spanish
point of view, the passing of the resolution, even if it was not implemented, was
a considerable public relations and diplomatic achievement.
CHAPTER 36
operation
36.1.
In the 1932 edition of this work, considerable space was given to an account of
the League of Nations, its constitution, its activities and kindred matters. But
for all the idealism of its founders, the camaraderie of those who worked in it and
the merits of much of its work, the League's span of life, in terms of world
history, was short. Handicapped from its birth in 1919 by the absence of the
United States, discredited later by its failure to deal adequately with open
breaches of the peace by Italy in Albania and Abyssinia (Ethiopia) and by
Japan in Manchuria and China, fettered by what amounted to a liberum veto l
which inhibited quick, decisive action, weakened in numbers by the inevitable
withdrawal ofNazi Germany and the equally inevitable expulsion of the Soviet
Union on the latter's invasion ofFinland in 1939, the League and its supporters
had to accept during the Second World War that revision and renovation
would be too difficult for them, and that effective world opinion would insist
upon a new international organisation. Accordingly on 18 April 1946, after the
formation of the United Nations, the League gracefully brought its life to a
close, bequeathing certain of its less political responsibilities to the new body.
36 2 .
The term 'U nited Nations' derives from the 'Declaration by United Nations' of
1 January 1942, in which the twenty-six nations then fighting against the
German-Italian-Japanese Axis affirmed their resolve to cooperate in winning
the war and their adherence to the Atlantic Charter. That Charter, proclaimed
on 14 August 1941 by the President of the United States, Franklin D. Roosevelt
and the Prime Minister of the United Kingdom, Winston Spencer Churchill,
looked forward to a peace affording to all peoples freedom and security from
aggresSiOn.
36 .3.
Before any formal steps were taken internationally to set up a new world
political and security organisation, a conference in the name of the United
Nations was held in May andJune 1943 at Hot Springs, Virginia, USA, at the
instance of President Roosevelt. It was called under the title 'United Nations
Conference on Food and Agriculture' and it was attended by repr~sentatives
from forty-four countries. Its mandate was purely advisory, but the Conference
led directly to the establishment in October 1945 of the Food and Agriculture
Organisation of the United Nations (FAO).
316
The Charter
36.4.
The first formal international discussions with the objects described in 36.2
were held at Dumbarton Oaks, Washington, DC, in the summer of 1944,
between representatives of the United States, the United Kingdom and the
Soviet Union. They were followed by similar talks between the United States,
the United Kingdom and the Republic of China. (The Soviet Government
refused to participate with the Nationalist Chinese in these preliminary
meetings.) Further discussions took place at the Yalta Conference in February
1945, attended by President Roosevelt, Marshal Stalin and Prime Minister
Winston Churchill. Those talks resulted in a text of a draft Charter2 for
presentation to the forthcoming United Nations Conference on International
Organisation which opened in San Francisco on 25 April 1945. Various
modifications presented by the Great Powers were agreed; the only issue which
brought the Conference to real crisis with fear of failure was the difference of
opinion between, on one side, the United States, the United Kingdom and
China, with the sympathy of the middle and smaller powers, and, on the other
side, the Soviet Union about the extent of the right of veto by a Great Power in
the Security Council. 3 Extensive argument also took place between the greater
and smaller powers over the Dumbarton Oaks proposals as modified at Yalta;
some concessions were thereby achieved by the smaller powers, but in the main
the Great Power proposals stood. The Charter was signed on 26 June by
representatives of all the fifty-one nations taking part in the Conference, except
Poland, which signed on 15 October. The requisite number of ratifications
having been received, the Charter went into force on 24 October 1945.
Membership
36.5.
36.6.
3I 7
Principal organs
36.7.
The General Assembly is the only organ in which all members of the United
Nations are directly represented. The Assembly receives and notes reports from
the Security Council and other bodies, and it is the Assem bly which approves
the Budget of the Organisation. The Assembly's sphere of activity is as wide as
the Charter itself. But in essence, apart from household questions (budgets,
elections, appointments, etc.) and affirmations of corporate views (e. g. on
racism), it is a recommending and not a deciding body. Under Article I I (I) the
General Assembly
'may consider the general principles of cooperation in the maintenance of international
peace and security, including the principles governing disarmament and the regulation
of armaments, and may make recommendations with regard to such principles to the
Members or to the Security Council or to both.'
But even this broad function is intended to be circumscribed by Article I2( I),
which lays down that:
'While the Security Council is exercising in respect of any dispute or situation the
functions assigned to it in the present Charter, the General Assembly shall not make any
recommendation with regard to that dispute or situation unless the Security Council so
requests. '
However, this limitation, 5 intended in the main to avoid confusion, has not
been difficult to circumvent by procedural devices.
36.9.
3I 8
members who will have to enforce it and there is therefore no prospect ofact ion
on it by the Organisation as a whole.
36.10.
The Assembly, like all other organs, is bound by the 'non-intervention' section
of the Charter. Article 2(7) reads:
'Nothing contained in the present Charter shall authorise the United Nations to
intervene in matters which are essentially within the domestic jurisdiction ofany state or
shall require the Members to submit such matters to settlement under the present
Charter; but this principle shall not prejudice the application of enforcement measures
under Chapter VII.'6
Meetings
36.1
I.
The Charter provides (Art. 20) for the Assembly to have to meet in regular
annual sessions and in 'such special sessions as occasion may require.' Such
sessions can be convoked at the request of the Security Council or by a majority
of members.
The custom has established itself for the regular sessions of the General
Assembly to meet at United Nations Headquarters in New York on the third
Tuesday of each September. The 'Uniting' for Peace' Resolution (1950) made
specific provision for meetings at short notice. 7
36 . I 2.
The final authority within the General Assembly is the Plenary Meetingwhich
can be called at any time during a session. At the next level the Assembly has set
up seven main committees on which each member country may be represented
by one person. (No limit beyond that of space is placed on the number of
advisers present). The committees are:
First Committee: Political and Security.
Special Political Committee: Political questions not taken by First Committee. s
Second Committee: Economic and Financial.
Third Committee: Social, Humanitarian and Cultural.
Fourth Committee: Trusteeship (including non-self-governing territories).
Fifth Committee: Administration and Budgetary.
Sixth Committee: Legal.
Procedural committees
36. 13.
319
presented for admission over and above those originally accepted. 10 It can also
in theory tender general advice to the President on the handling of the sessions:
in practice, its advice has not gone beyond making recommendations a bou t the
inclusion of agenda items and occasionally the amalgamation of related items.
36 1 4.
36 16.
320
36.18.
At the time of the Congo crisis of 1960, there was disagreement within the
United Nations about paying for the United Nations Emergency Force in the
Middle East and for peace-keeping operations in the Congo. The Soviet
Union and its Communist associates had taken the line from 1956 onwards that
only the Security Council had the authority to establish United Nations forces
and decide how their operations should be financed. However, the events
which will be described in 36.46 had shown that practice was not so clearly
definable, and in any case many countries of the Latin-American and AfroAsian groups did not challenge the legality of the procedures adopted in the
case of the Congo, though it was suggested that contributions corresponding to
the assessment of each country for UN budget purposes would place too great a
burden on the poorer countries. 13 The position was further complicated by
Soviet opposition in 1960 to peace-keeping activities in the Congo.
36 1 9.
The Assem bly failed to solve the problem and the Soviet Union and, in respect
of the Congo, France began to withhold payments. The Assembly in 196 I
decided by a majority to refer to the International Court of] ustice the question
whether peace-keeping activities in the Middle East and the Congo constituted
'expenses of the Organisation' under Article 17 of the Charter. 14 The Court
took, by majority vote, the view that no limitation of the scope of United
Nations action, as implied by the opposing side, existed in Article 17, thereby
rejecting the Soviet and French contention and action. In 1964, when Soviet
payments had dropped seriously behind, the United States raised the
possibility of action under Article 19 to suspend the Soviet vote in the
Assembly. There was naturally relief when crisis was averted by a so-called
'non-objection procedure' which enabled the United States to withdraw its
pressure. But this procedural device thinly concealed a major concession of
principle proving the non-effectiveness of rules and committees when a leading
power decides not to comply. IS
36.20.
32 I
Plenary sessions
36.2 I .
General policy speeches, very often made by foreign ministers and occasionally
by heads of government are delivered in plenary session during the first two or
three weeks of the regular Assembly session. Since most speakers work out their
speeches carefully in advance and devise them at least in part to satisfy
audiences at home, there is not much debate at this stage. From then on,
practically every item on the agenda is considered in the appropriate
committee. This will, if necessary, refer them, generally between sessions, to an
existing or ad hoc sub-committee which will be able to do detailed and
specialised work in a group smaller than the main committee ofanything up to
some 150 people. Each item will come back from its committee to the Plenary
Assembly where it will be voted on, sometimes without discussion and
generally with much briefer discussion than that in committee.
36.22.
36.23.
Rule 89 of the Rules of Procedure of the General Assembly reads in part as follows:
(a) The General Assembly shall normally vote by show of hands or by standing,
but any representative may request a roll-call. The roll-call shall be taken in
the English alphabetical order of the names of the Members, beginning
with the Member whose name is drawn by lot by the President. ... 18
In the early meetings of the General Assembly, the roll-call was conducted
in alphabetical order starting at the beginning of the alphabet. It was not
perhaps fully realised that if roll-call votes were declared publicly, the first vote
on a difficult question on which voting lines had not yet become clearly defined
might have an unintended influence on subsequent voting. This possibility can
never be wholly eliminated. The nearest way ofachieving fairness was felt to be
to retain the alphabetical principle as the only practicable one, but to subject
each year to chance the choice of the country announcing its vote first. This at
least avoided all other avoidable disadvantages, and, in particular, the exercise
of special pressure over the years on one single country.
322
The Security Council has the primary responsibility for the maintenance of
international peace and security.
Membership
36.25.
Originally the Security Council had eleven members, five permanent and six
non-permanent. The permanent members were the Republic of China,
France, the Union of Soviet Socialist Republics, the United Kingdom ofGreat
Britain and Northern Ireland and the United States of America. The six nonpermanent members were to be elected by the General Assembly for two years,
a provision in Article 23(2) ensuring that three would be elected each year.
Since that time there have been two important changes, one in the number of
members and the other in the identity of one of the permanent members.
36.26.
Procedure
36.27.
The Security Council is organised so as to be able to function continuously. Every member of the Council has to be represented at all times at
the seat of the Organisation. The position of President is held for a month at a
time by each of its mem bers, in the alphabetical order of their English names.
Functions
3 6 2 8.
The main functions of the Security Council are dealt with in Chapters VI
and VII of the Charter. Under Chapter VI of the Charter, entitled the
'Pacific Settlement of Disputes', the Council may call on the parties to a
dispute to settle it by peaceful means; may investigate any dispute or any
situation which might lead to international friction or give rise to a dispute, in
order to determine whether the continuance of the dispute or situation is likely
to endanger the maintenance of international peace and security; or, at any
stage of such a dispute or situation, may recommend procedures or methods of
adjustment. Any member of the United Nations may bring such a dispute or
situation to the attention of the Council, or of the General Assembly. Any state
not a member of the United Nations may bring to the attention of the same
bodies any dispute to which it is a party, if it accepts for the purposes of the
dispute the obligations of pacific settlement provided in the Charter.
323
36.29.
36.30.
While thus vesting primary responsibility for the maintenance of peace in the
Security Council, the Charter also provides that nothing contained in it shall
impair the inherent right of individual or collective self-defence, if an armed
attack occurs against a member of the United Nations, until the Security
Council has taken measures necessary to maintain international peace and
security. It is under this provision of the Charter that the establishment of the
North Atlantic Treaty Organisation and of the South-East Asia Treaty
Organisation is justified.
36.3 I.
The Charter also allows (in Chapter VIII) for the establishment of regional
arrangements for dealing with such matters relating to the maintenance of
international peace and security as are appropriate for regional action. But no
enforcement action can be taken under regional arrangements or by regional
agencies without the authorisation of the Security Council. (A temporary
exception was made with regard to measures against an 'enemy state' defined
as any state which was during the Second World War an enemy of any
signatory of the Charter.)
Enlargement of membership
36.32.
5
1
2
2
324
36 .33.
This change had a consequence which was more than mathematical. When the
Security Council numbered I I members, a procedural motion required seven
affirmative votes, so that one such vote had to come from one of the five
permanent members. When the membership was raised to fifteen, it was
decided to fix the number of affirmative votes required to carry procedural
motions at nine, with the consequence that such motions can be passed without
a vote from any of the permanent members, and that even with the support of
the five permanent members a resolution requires the positive votes of nonpermanent members representing at least two regional groups. Furthermore,
on a matter on which the permanent members are not enthusiastic but on
which no permanent member wishes to vote negatively, whether alone or in
company with others, a proposition can be carried by the votes of nonpermanent members only. This procedure was used in a vote in 1973 in regard
to the holding of a Peace Conference in Geneva. 20
At the San Francisco Conference the people of China were represented by the
Republic of China, whose Government had for practical purposes been since
1928 in the hands ofChiang Kai-shek. The Republic had struggled since 1931
against Japanese invasion and had fought alongside the Allied forces from the
day when in 1941 Japan entered the Second World War. On the initiative of
the United States, China was accepted as one ofthe original sponsors ofthe San
Francisco Conference and one of the permanent members of the Security
Council. In the immediately succeeding years, while efforts were being made to
find an acceptable modus vivendi between the Nationalists and the Communists,
China was represented at the United Nations by a composite NationalistCommunist delegation. But in 1949, as had by no means been expected in the
outside world in 1945, the Nationalist forces were routed in continental China
by their Communist opponents and Chiang Kai-shek retired to Taiwan
(Formosa) to set up his administration there, retaining the name 'Republic of
China'. At this point a number of countries transferred recognition from the
Republic ofChina to the (Communist) People's Republic, headed by Mao TseTung, as effectively representing the Chinese people as a whole. Among these
countries was the United Kingdom, in conformity with the British doctrine that
recognition is not a moral choice but a recognition that a particular
government has genuine control of a country.
36.35.
However, United States doctrine and policy in a situation of this kind permits
the exercise of choice. In the Chinese case, given the breadth and intimacy of
America's relationship with China, and particularly Kuomintang China, in
peace and war, the Americans did not feel able to accord early recognition to
the Communist Government. There was strong and continuous pressure from
political and economic organisations in the United States against any change.
The subsequent war in Korea made this position more difficult still to abandon.
Other countries, while disagreeing, were not disposed to provoke an American
veto on the question who should represent China, which a motion in the
Security Council under Article 4(2) would have induced. It was only in 1971
32 5
that the general pressure of fact and opinion, and the refusal of the People's
Republic to consider a so-called 'Two Chinas Policy', led the United States
Government reluctantly to agree that the replacement in the United Nations of
the Chiang Kai-shek administration in Taiwan by the People's Republic had
become inevitable. This took place on 25 October 197 1. 21
Voting in the security council
36.36.
Article 27 of the Charter which deals with voting in the Security Council
originally read as follows:
Each member of the Security C<'uncil shall have one vote.
Decisions of the Security Council on procedural matters shall be made by an
affirmative vote of seven members.
3 Decisions ofthe Security Council on all other matters shall be made by an affirmative
vote of seven members including the concurring votes of the permanent members;
provided that in decisions under Article VI and under paragraph 3 of Article 52, a
party to a dispute shall abstain from voting.
I.
2.
36.38.
The effect of Article 27.3 is to create the so-called 'veto', exercisable by any of
the permanent members. Not unnaturally this was strongly attacked at the San
Francisco Conference by both 'middle' and smaller powers, but it was a
proposition from which the sponsoring powers and France were not prepared
to move, maintaining that it was only by a measure of this kind that the
constitution of the United Nations could be made to conform with the realities
of world power. The only modification agreed later (1946/7) by the permanent
members was that abstention by a permanent member was not to be regarded
as the exercise of a veto. Thus, if a permanent member abstained, such an
abstention would not imply failure of a draft resolution provided that there
were sufficient affirmative votes to make up seven or, after August 1965, nine.
36.39.
On 25June 1950, troops from North Korea crossed the boundary into South
Korea and met resistance from South Korean forces. The matter was at once
brought to the attention of the Security Council. In the debate the SecretaryGeneral, Mr Trygve Lie, exceptionally intervened to give his opinion that the
attack was a violation of the United Nations Charter. It was to be presumed,
however, that any proposal for United Nations preventive action would be
vetoed by the Soviet representative.
36.40.
But the Soviet Union was at that time boycotting the Security Council and
other organs of the United Nations on the ground that, given the victory ofthe
Communist forces on the Chinese mainland the year before, China was no
longer properly represented at the United Nations by a Nationalist delegation.
Accordingly, when a draft resolution was put to the vote calling for a cease-fire
326
36.42.
32 7
It is of value to trace the sequels of this episode along two lines, the use of
military forces by the United Nations and the use of the veto. It was not
unreasonable to expect that, as a result of what happened over Korea, no
permanent member of the Security Council would again be absent on a
comparable occasion and no further use of armed forces would be made by the
United Nations. The first judgement has been correct for over a quarter of a
century. The second judgement would be wrong. It is true that with the tacit
approval of at least two permanent members of the Security Council,
machinery for organising action under Article 47 of the Charter through the
Office ofthe Military Adviser had been allowed to run down. However, this did
not happen to the use of the armed forces of the United Nations in the cause of
peace-keeping.
36.45.
Two years before the Korean War the Security Council had on 29 May 1948
authorised the United Nations Mediator in Palestine to use military observers
for truce supervision; but at that stage these observers did not constitute an
'interposition' force between possible combatants. Later, after the Suez crisis, a
United Nations Emergency Force was placed on the border between Israel and
Egypt (United Arab Republic) between the forces of the two countries. In
1967, however, in a tense political situation, the withdrawal of the force was
demanded by Gamel Abdel Nasser, President of the UAR, and the demand
was promptly (and controversially) acceded to by the then United Nations
Secretary-General, U Thant. After the defeat of the Arab forces, the passage
five months later of Security Council Resolution 242 resulted in the truce
supervision organisation assuming responsibility for maintaining the cease-fire
in the Suez Canal Zone. When in 1973 the war broke out again, the Security
Council in Resolution 338 and 339 of 2 I and 23 October set up a new UNEF
with the instruction to 'supervise the immediate and complete implementation
and observance of the cease-fire ... and to use its best efforts to prevent a
recurrence of the fighting.'
36.46.
The use of United Nations forces in a peace-keeping capacity was not confined to the Middle East. There was the intervention in 1960 in the former
Belgian Congo (Zaire). This example of the employment offorces in the name
of the United Nations was wholly different from the other two referred to
328
above. A few days after independence day (20June 1960) the Congolese army
revolted against the Belgian forces still stationed there and, in the atmosphere
of tense fear which followed, the Belgian Government ordered the sending of
reinforcements from home. The Congolese Government appealed to the
United Nations for help, and the then Secretary-General, Dag Hammarskj6ld,
put the matter urgently to the Security Council under Article 99 of the
Charter. 24 Putting his initiative in language which was based on the setting up
of the UNEF in Sinai and avoiding the concept of'enforcement,' the SecretaryGeneral persuaded the Security Council to accept his plan and at one time
there were contingents from no less than eleven members ofthe United Nations
in the Congo for the purpose of promoting the peace and uLity of the country.
The tragic death ofHammarskjold in 1961 and disunity among the powers led
Hammarskj6ld's successor, U Thant, towards a policy ofdisengagement and the
handing to the Specialised Agencies ofthe task ofassisting a country now weary
of civil war. In the wake of the Soviet and French complaints about the Congo
operation a Special Committee on Peace-Keeping Operations was set up by
the General Assembly Resolution 2006 (XIX) to draw up guidelines on peacekeeping operations. But it has so far failed to agree on the terms to be
recommended.
36.47.
Yet another variation in the use of United Nations Forces for peace-keeping
was the Security Council's Resolution 186 of 4 March 1964, designed to keep
the Greek and Turkish protagonists in a near-civil war in Cyprus from actual
hostilities. Under this Resolution there was established, in consultation with
the Governments of Cyprus, Greece, Turkey and the United Kingdom (the
former ruling power), a United Nations Force in Cyprus (UNFICYP). Drawn
from seven Commonwealth and European countries (including, for the first
time, a permanent member of the Security Council, the United Kingdom), the
force became operational on 27 March 1964, initially for three months. It was
not strong enough to prevent civil strife and the Turkish invasion of 1974, and
its existence was constantly placed in jeopardy by the habit of United Nations
members of failing to provide until the last moment, ifat all, the funds required
for the next period. Nevertheless, the presence of these forces (4100 members in
all in 1974) gave to life in the island a certain reassurance which would not
otherwise have existed.
36 .48 .
The unique experience of the Korean debate and its sequel did not
immediately change the spirit or practice of the Security Council in the use of
the veto. In general, the custom was to bring disputes and situations involving
possible dangers to peace rapidly before the Security Council (as indeed
appeared to be the intention of the Charter) with the resultant risk of veto
329
36.50.
The hundredth veto was applied in 1963. At the end ofthat year the number of
vetoes cast was as follows:
China (Nationalist)
France
USSR
United Kingdom
United States
100
3
nil
108
In a degree, the figures speak for themselves. But it needs to be noted at once
thal the figures are 'gross' rather than 'net.' For example, nearly 50 per cent of
the vetoes cast concerned the admission to membership of the United Nations
of new members. Some countries were vetoed more than once before eventual
admission. The frequent use ofvetoes caused increasing concern whether it was
right or expedient for the world organisation responsible for the maintenance of
peace and security to place itself in a position where decision was impossible.
Moreover, with the rapid growth from the late I 950S onward of the concept of
non-alignment, there were many newly elected members to whom it was
distasteful either to take sides or to be criticised, whether for being present and
abstaining from voting or for being absent during a vote.
36.5 I.
On the other side, it could be argued that it was seriously damaging to this
world organisation to face an international crisis and take no decision at all, or
worse still, not even to face it, despite the words of the Charter in Article I. I:
'The Purposes of the United Nations are:
I. To maintain international peace and security, and to that end: to take effective
collective measures for the prevention and removal of threats to the peace... .'27
36.52.
A classic example of successful diplomacy along the lines of this thinking was
the handling of the diplomatic situation after the Six-Day Arab-Israel War of
1967. A cease-fire was followed by the calling of a Special Assembly of the
United Nations at which the Soviet Union prompted a draft Resolution wholly
favourable to the Arab view. This was not adopted, and deadlock appeared
complete. However, early in August there emerged the first signs that there
could be the possibility of compromise. This possibility was pursued
pertinaciously over the next three months, particularly by two leaders of
330
USSR
UK
4
(2 jointly with UK)
10
12
17
37
17
145
331
(a) higher standards of living, full employment, and conditions of economic and social
progress and development;
(b) solutions of international economic, social, health, and related problems; and
international cultural and educational cooperation; and
(c) universal respect for, and observance of, human rights and fundamental freedoms
for all without distinction as to race, sex, language, or religion.'
36.57.
Authority for carrying out the above functions is vested in the General
Assembly and, under its authority, in the Economic and Social Council (Art.
60). The Council may make or initiate studies on the matters referred to, and
may make recommendation upon them to the General Assembly, to member
states and to the Specialised Agencies concerned. It may also make
arrangements for consultation with non-governmental organisations. The
Council enters formal relationships with the Specialised Agencies by
negotiating special agreements with each of them, subject to approval by the
General Assembly.
36.59.
It is often asked why, given the importance of the economic and social aims of
the United Nations and the progress made since 1945 in respect of many of
them, the Economic and Social Council does not enjoy a prestige comparable
to that of the Security Council. It is fair to say that in the United Nations'
formative years of 1945-6, while economic and social objectives were realised
to be very important, the main interest of governments and peoples lay in
organising the preservation of peace and the prevention of future war. But
there was also a basic difference between the two Councils. The Security
Council had no competitors; the Economic and Social Council had
competition existing already in the International Labour Organisation (1919),
the International Bank for Reconstruction and Development and the
International Monetary Fund (articles approved in 1946), and later in the
World Health Organisation (1948) and, on the economic analysis side,
the Organisation for Economic Cooperation and Development (1961) and the
United Nations Conference on Trade and Development (1964)' Of these
'competitors', all but the OECD have since become Specialised Agencies.
Thus, while the Economic and Social Council has initiated such enterprises as
the GATT (General Agreement on Tariffs and Trade) and encouraged
progress on economic and social developments, including in later years work
designed to assist the developing countries, it has never succeeded in
establishing for itself the place of world authority which many in 1945 hoped it
might achieve.
332
The Secretariat
36.60.
In the opening words ofArticle 97, 'The Secretariat shall comprise a SecretaryGeneral and such staff as the Organisation may require.'
The Secretary-General
3661
It was realised by those who devised the Charter that one of the difficulties
which obstruct international peace-making and peace-keeping is a situation in
which national or group sensitivities are so touchy, or moods so tense, that none
of the states concerned wish to invoke or provoke third-party intervention,
national or international. Article 99 contains the strong implication that in
such circumstances the Secretary-General has some moral obligation to have
the position discussed in the Security Council. Such a decision would need both
judgement and courage. If the Secretary-General acted too hastily, he might
make matters worse; if he hesitated too long or did not act at all, he might be
failing to exercise on behalf of the organisation established as the guardian of
the world's security a most important faculty provided explicitly by the
Charter. Different Secretaries-General have taken different views. The second
Secretary-General, Mr Dag Hammarskjold ofSweden, certainly took an active
view of his office in this context, his successors less so.
The staff
36.63'
Thirty years later no one could be considered cynical for doubting whether ail
these conditions have been and continue to be fulfilled. Indeed they are hardly
self-consistent, since the choice of the most competent candidate cannot be
The Secretariat
333
36.64.
In the performance of their duties the Secretary-General and staffmay not seek
or receive instructions from any government or from any other authority
external to the Organisation. They are to refrain from any action which might
reflect on their position as international officials responsible only to the
Organisation. According to Art. 100, each member of the United Nations
undertakes to respect the exclusive international character and responsibilities
of the Secretary-General and his staff and not to seek to influence them in the
discharge of their responsibilities. 30
Languages
36.65'
On I February 1946, during the first part of its first session, the United Nations
General Assembly adopted a Resolution entitled 'Rules of Procedure
concerning Languages' of which the Annex, paragraph I, reads as follows:
'In all the organs of the United Nations, other than the International Court of] ustice,
Chinese, French, English, Russian and Spanish shall be the official languages, and
English and French the working languages.'
This meant in effect that speeches made in one working language were
interpreted into the other, and speeches made in the official languages were
interpreted into both working languages. Any representative might make a
speech in any other language, but in that case he would be responsible for
providing interpretation into one of the working languages; the Secretariat
would then provide interpretation from that working language into the other.
Apart from this, a fuller documentation would be furnished in the working
languages than in any other.
36.66.
At that time simultaneous interpretation was in a very early technical stage, and
the General Assembly included in the same Resolution a recommendation that
the Secretary-General 'make a thorough enquiry into the question of the
installation of telephone systems of interpretation.... '31 As a result of this
examination and the installation ofa telephone system providing simultaneous
listening facilities in more than one lang-uage, the Assembly resolved 32 on 7
December 1946 to continue using both systems (consecutive and simultaneous)
until the next session and meanwhile to provide more equipment with
apparatus for simultaneous interpretation and to consider whether a wireless
system of simultaneous interpretation would be preferable to the equipment
then in use. On 15 November 1947 it decided 33 that simultaneous
interpretation should be adopted as a permanent service, either as an
alternative to, or in connection with, consecutive interpretation. In fact, this
was the end of consecutive interpretation in the Assembly.
36.67.
Consecutive interpretation has its merit ifthere are only two languages in use at
a Conference, since it gives delegates whose own language is other than either of
these two a little more time and opportunity to make sure they understand
what has been said. But whatever might be thought in 1946, the eventual
334
increase in the number ofworking languages would have made the consecutive
procedure impossibly lengthy, and some alternative system had to be invented
and applied. 34
Meantime the number of working languages increased. In 1948 Spanish was
added. Twenty years later the Assembly decided to add Russian. Five years
after that in 1973, Chinese was included for all purposes, together with Arabic
for the Assembly and its Committees. The terms 'official' and 'working'
languages were retained in the title of Rule 51, the text of which reads:
'Chinese, English, French, Russian and Spanish shall be both the official and the
working languages of the General Assembly, its Committees and the subcommittees.
Arabic shall be both an official and a working language of the General Assembly and
the main Committees.'35
36 69.
Thus the simultaneous interpretation system, with its six glass boxes containing
interpreters, enabled the assimilation of working and official languages to
progress, and various national and group claims on behalf of particular
languages to be met. A limited addition to the language services was made
when, to respond to the needs ofAustria, the Federal Republic ofGermany and
the German Democratic Repu blic, it was decided that written German
translation services (as opposed to oral interpretation) should be furnished in
respect of basic documents, provided that the three countries collectively
covered the cost.
In the Budget proposals for UN Headquarters for 1976/7, the estimated
aggregated expenditure of the Translation Division, Interpretation and
Meeting Division and the Editorial and Records Division amounted to over
US $4 1 million. 36
The United N at ions Charter devotes three chapters to the su bject ofdependent
territories. Chapters XII and XIII, entitled respectively 'International
Trusteeship System' and 'The Trusteeship Council,' deal with a special task
inherited from the Permanent Mandates Commission ofthe League ofNat ions
as modified by the changes in the world military and political situation brought
about by the Second World War. Chapter XI, under the title 'Declaration
regarding Non-Self-Governing Territories,' presents a declaration under
which 'Members of the United Nations which have or assume responsibilities
for the administration of territories whose peoples have not yet attained a full
measure of self-government. .. '37 accept certain obligations. The scope and
limits of these obligations are discussed in the following section of this chapter.
But before the two methods of approach are described separately, it is
important to note a degree of common origin.
36.72.
36.73.
36.74.
335
36.75.
36.76.
Since the Trusteeship Council had thus largely fulfilled its purpose, it would be
unprofitable in this edition of this book to describe in detail its nature, purpose
and rules. 39 The texts ofChapters XII and XIII ofthe Charter are, however, of
great interest as illustrating the development of the idea ofTrusteeship, should
336
events again make its adoption expedient and acceptable. Two points may,
however, be briefly noted. Article 76(b) of the Charter describes as a 'basic
objective' of the trusteeship system:
'To promote the political, economic, social, and educational advancement of the
inhabitants of the trust territories, and their progressive development towards selfgovernment or independence as may be appropriate to the particular circumstances of
each territory and its peoples and the freely expressed wishes of the peoples concerned,
and as may be provided by the terms of each trusteeship agreement.'
Another feature of note was the effort made in Article 86 of the Charter to
balance the interests of administering powers, non-administering powers and
world security - the latter by the inclusion as members of the Trusteeship
Council of all the permanent members of the Security Council. This balance
was to be worked out in such a way as
'... to ensure that the total number of members of the Trusteeship Council is equally
divided between those Members of the United Nations which administer trust
territories and those which do not.'40
36.78.
Since the First World War had been conducted principally in Europe and
three out of the four main Allied participants in the Versailles Peace
Conference were European Colonial Powers, it was hardly to be expected that
the international agreements arrived at would contain any statements about
the future of dependent or non-self-governing territories as a whole. In most
colonies movements in favour of independence had scarcely begun; only in the
(British) Indian Empire was the war immediately succeeded by active pressure
for swara} (self-rule). Progress moved fastest where it was least difficult, in what
Professor Max Beloff christened 'Britain's Liberal Empire, '41 in which the
Non-selfgoverning territories
337
During the Second World War various Allied declarations spoke in terms of
freedom, and in the case of India a highly serious, if unsuccessful, effort was
made in 1942 to advance this progress beyond the provincial self-government
already achieved. India had in any case been a member of the League of
Nations while not yet independent of Britain, and it was accepted
internationally that India would be independently represented not only at
politico-technical Conferences such as the Chicago Civil Aviation Conference
in 1944 but also at the San Francisco Conference itsel( American opinion,
official and unofficial, was strongly opposed to the return of French and Dutch
rule in Indo-China and Indonesia (Dutch East Indies) respectively, where
strong nationalist movements had developed during Japanese occupation. It
was thus inevitable that the question whether there should be an Article in the
United Nations Charter about Non-Self-Governing Territories should be
raised and hotly debated in San Francisco. The majority of the Conference,
containing as it did Asian, Arab and Latin-American States, many of which
had had colonial pasts, was bound to be in favour of such an article being
included. Against this the proponents of the emerging Article 2.7, the noninterventi< n clause, could and did argue that the two concepts were
inconsisteJ t. 43 When both Article 2 and Chapter XI - the latter dealing with
non-self-governing territories - became part of the Charter as ratified,
their coexistence raised obvious difficulties. Administering states in due course
sought to use Article 2.7 to prevent discussion of items concerning non-selfgoverning territories, but the Assembly could, if the majority so wished, vote by
majority to undertake such discussion.
36.8 I.
36 82 .
Article 73(b) opens with a commitment 'to develop self-government' but does
not contain a commitment to political independence. On the other hand the
phrase 'have not yet attained a full measure of self-government' has an
implication of progress towards independence, and a much stronger
implication is to be found in Article 1.2 of the Charter which, under the
introductory phrase 'The purposes of the United Nations are -' reads in part:
To develop friendly relations among nations based on respect for the principle of
equal rights and determination of peoples... .'44
'2.
Yet here again interpretation has to be careful, since the people of West Irian
exercise the right not to become a separate, independent state, but to become
part of an already existing state, Indonesia.
338
36 8 3'
And, as if in the early stages of the United Nations this matter were not
ambiguous enough, reference may be made back to Article 73(e), in which
administering powers accept the obligation to 'transmit regularly to the
Secretary General for information purposes ... statistical and other
information of a technical nature relating to economic, social and educational
conditions in territories for which they are respectively responsible.' But
Chapter XI does not provide for the furnishing by the administering power of
'political information.'45
36.84.
The limitations in Chapter XI of the Charter are important. But the essential
change from previous practice is that for the first time the administering
powers accepted the proposition that they had a degree of obligation,
sustained by international Charter, to report to the international community
on matters which had previously been considered their own exclusive
responsibility. This does not mean that foreign public or even governmental
opinion had felt debarred from commenting critically on the colonial
proceedings of others; but hitherto such criticism had enjoyed no status in
international law.
36.85.
36.86.
In the early years after the ratification of the Charter a number of things
happened which had been expected, but they happened rather earlier than
foreseen. India, Pakistan and Ceylon (Sri Lanka) became independent from
Britain in 1947 and Burma in 1948: the first three within the Commonwealth
and Burma outside. The Dutch, under pressure from the United Nations,
accepted similar developments in the Dutch East Indies (Indonesia) in 1950. In
1956, Morocco and Tunisia declared independence from France, and the
Sudan emerged from a nominal Anglo-Egyptian condominium which had become, in practice, British authority. In 1957, the Gold Coast (Ghana), under
the leadership of Dr Kwame Nkrumah, a thorough student of the theory and
practice of colonisation and decolonisation, became the first British black
African colony to gain independence, and in South East Asia the same step was
taken by Malaya (Malaysia).
,I\fon-selfgoverning territories
339
36 8 7.
36 .8 8.
This was briefly the historical and constitutional picture in 1960 when over and
above the many new admissions in the 1950S, seventeen more colonial countries
were due to attain independence and, therefore, to become eligible for
membership of the United Nations. The next episode is a classic example ofa
political tactic applied with appropriate timing to foreign policy and
diplomatic situation. On 23 November 1960 the Soviet Delegation requested
that an additional item be added to the Assembly agenda, namely, a
'declaration on granting of independence to colonial countries and peoples. '46
36 8 9.
The text was considered so important that it was moved by the chairman of the
Soviet Council of Ministers (Nikita Khrushchev) himself. Apart from the main
theme of the Resolution, perhaps the most penetrating phrase was that
'inadequacy of ... preparedness should never be served as a pretext for
delaying independence.'
36.90.
There were objections from some delegations to the tone of the language,
notably from those Latin-Americans who, contrary to the Communist and
African thesis, maintained that there had been some accomplishments in the
colonial periods for which credit must be given to the colonisers. The Soviet
draft, with minor modifications, was carried by eighty-nine votes to nil with
nine abstentions (the administering powers). 47 By abstaining from voting the
administering powers can be said to have conceded the proposition.
36.91.
340
Postscript
:J6.95.
These sections have sought to show how over some thirty years a number of
events and developments have affected the character and practices of the
United Nations. Processes which may appear complicated and even frustrating
are more readily understood when their origins and history are examined.
Undoubtedly, the most important single development has been the increase,
Postscript
341
which amounts to nearly 200 per cent (50 to 147) in the number ofmembers. Of
this latest number, some 90 are former dependent territories. Thus, the earlier
period in which a strongly held American position usually prevailed, passed
into one in which any alliance between the Communist countries and nonaligned countries (as over decolonisation) could dominate the Assembly
without, however, imposing policies or actions on which the Security Council
had, under the Charter, the final say.
36.96.
Immediately after the drafting and ratification of the Charter in 1945, the
hopes of public opinion, despite some chilling warnings, were perhaps placed
too high. Nations did not cease to behave like nations, parties like parties and
politicians like politicians. Successes and failures were mixed; the considerable
successes in the Middle East in 1967 was balanced by the long run offailure over
Rhodesia. But at least a remarkable degree of universality was achieved for the
United Nations. No country wishing to become independent thought in terms
of independence outside the United Nations and the only nation so far to
suspend its participation (Indonesia) came back. Nor does there seem likely to
be a dramatic change in the Organisation unless some sudden physical or
political convulsion were to alter the world scene beyond recognition.
36.97.
It is natural that there should be from time to time interest in the question ofthe
revision of the United Nations Charter. The whole matter, including the
politically sensitive question of the rules governing permanent membership of
the Security Council, has been under discussion in a special United Nations
Committee. The rules governing amendments of the Charter are set out in
Article 108. They are precise and read as follows:
'Amendments to the present Charter shall come into force for all Members of the United
Nations when they have been adopted by a vote of two-thirds of the members of the
General Assembly and ratified in accordance with their respective constitutional
processes by two-thirds of the Members of the United Nations, including all the
permanent members of the Security Council.'
The Organisation, the members and the Secretariat will need to be neither too
hasty nor too faint-hearted in their efforts to organise peace-keeping, the
peaceful settlement of disputes and peaceful change. Members and blocs will
need to conform to accepted obligations (not at present the United Nations'
strongest virtue), and to confront the difficult rather than shirk responsibility or
yield to the momentarily attractive. Nor will it help to imagine that differences
of ideology do not matter. Without full authority over national and therefore
342
international force for direct use and for the maintenance of international
peace and security (Article 43) the United Nations will have to work for
reconciliation despite the temptation to which members are exposed to abuse
and victimise. Without control over economic and social policy, which has
gone to the Specialised Agencies and to UNCTAD (The United Nations
Conference on Trade and Development), the Assembly will nevertheless have
to show active interest and support in these matters and provide a world forum
for their discussion.
Chapter 37
Specialised Agencies,
regional commissions and
special bodies
'Specialised agencies'
37. I.
37.2.
states that:
'The Economic and Social Council may enter into agreements with any of the
agencies referred to in Article 57 ... '
37.3.
In paragraph 2 of the same article it is laid down that the Economic and Social
Council
'may coordinate the activities of the specialised agencies through consultation with
and recommendations to such agencies and through recommendations to the General
Assembly and to the Members of the United Nations.'
37.4.
At the time of the signing of the Charter in June 1945, there was in existence
only one Specialised Agency of the broad politico-social kind covered by these
Articles - the International Labour Organisation. Two other important
organisations, the International Postal Union, as it then was, and the
International Telecommunications Union, were still regarded as principally
technical in function and scope, though later they also joined the group of
Specialised Agencies. However, activity in the direction of creating international agencies to cover Food and Agriculture, Finance, Civil Aviation and
Education, Science and Culture had already reached an advanced stage, and it
was clear that, in the forthcoming period of international relationships, there
would be an unprecedented growth of intergovernmental intercourse through
agencies organised not as periodic conferences, but as bodies with permanent
staffs and continuous international work between conference meetings.
344
37.5.
The nature, volume and authority of such work could not be clearly foreseen;
hence the prudent wording of the first sentence of Article 63, paragraph 2,
quoted in 37.3. Both the concepts and the constitutions of a number of
Specialised Agencies had reached an advanced stage before the U nited Nations
Charter had been approved. These constitutions envisaged fully operative
international agreements, so that there was no question of United Nations
'supervision.' None the less it was generally thought that agreements between
the United Nations and the Specialised Agencies would at least assure a
measure of compatibility, coherence and mutual help, and by the end of 1976
fourteen such agreements had come into force. A schedule of these Agencies,
with brief descriptions of their origins and purposes appears in Appendix IV.
37.6.
The basic structures of such Agencies are generally similar. They consist of an
Assembly or Conference of all members, a smaller Executive Board to meet
regularly between Assembly meetings to steer and sometimes determine policy
and to prepare Assembly meetings, and a Secretary-General or Director to
handle continuing work, organise operations and projects, attend to
administration and keep the organisation generally 'on course.'
37.7.
At the end Of1975, out ofa world community nearing 150 independent nations,
12 of the 14 Specialised Agencies had memberships varying from 100 to 145,
the highest being that of the Universal Postal Union, the most needed and least
controversial of all. The Communist group tended not to join the financial
organisations, and some others did not join those in which they had no special
interest. In the earlier stages, Specialised Agencies were largely run by those
governments who possessed the greatest interest and proficiency in the subject.
With the growth in memberships, greater interest began to attach to equitable
geographical and regional distribution of places on executive boards. The
degree of political as opposed to technical influence varies from, say, the World
Meteorological Organisation, where it is negligible, to UNESCO where,
owing to the incidence of politics in 1974, Israel was prevented from joining a
regional grouping and, as a result, the United States withheld payment of
contributions.
UNCTAD
37.9.
345
Established
Headquarters
28 March 1947 1
Geneva
29 March 1947 2
Bangkok
8 March 19483
Santiago de Chile
29 April 19684
Addis Ababa
9 August 1973 5
Beirut
While all these bodies have done meritorious work in matters such as research
and statistics and in modest projects, the political situations in the different
regions have not been helpful in creating opportunities for politico-economic
cooperation.
UNCTAD
37.10.
It was for some time hoped that the International Bank and Fund and their
offshoots, together with the GATT (General Agreement on Tariffs and Trade),
might have sufficient resources and skill to provide for the needs of the newly
developing countries. A number of such countries might, it was thought in the
early 1960s, bring themselves to what was called the 'take-off stage, from
which point they would be able to finance and manage their national
economies. It did not take long to become clear that the problems of the
countries with the lowest standards of living were far deeper than this, and at
the call of the United Nations, the first United Nations Conference on Trade
and Development met in Geneva from 23 March to 16 June 1964.6 By
Resolution 1995 (XIX) of 1964, the General Assembly established UNCTAD
as an organ of the Assem bly.
37.1 I.
37. 12 . As an organ of the Assembly, UNCTAD did not appoint a Secretariat after the
form of a Specialised Agency, but entrusted to a Trade and Development
Board the task of carrying out the functions of the Conference when it was not
346
in session. From the account given here of the Specialised Agencies and
UNCTAD, it will be seen that (a) in the economic situation of the world, an
organisation additional to the economic and financial agencies had become
politically necessary, (b) much difficult argument will be necessary if countries
are successfully to reconcile needs under UNCTAD policies with existing
formal obligations under agreements entered into under the auspices of other
intergovernmental bodies.
After the First World War, machinery was set up in Geneva, under the auspices
of the League of Nations, to deal with the problem of refugees. This
organisation continued in operation after the Second World War under the
direction of Sir Herbert Emerson. Since, however, the decision had been taken
internationally not to prolong the life of the League ofNations but to replace it
by the United Nations, the General Assembly decided on 3 December 1949 to
appoint a United Nations High Commissioner for Refugees for a three-year
term, which has been renewed at five-yearly intervals. From being a nonoperational organisation, it soon became operational and with an Executive of
thirty-one, all from (politically) Western countries; it now operates on an
annual budget of US $12.5 million.
UNICEF
37. 1 4.
An allied and, in United Nations terms, older body, the United Nations
Children's Emergency Fund was set up as an emergency body in 19467 and
became a permanent organisation in 1953. 8 The UNICEF has the special
feature of accepting subscriptions from both governments and private
organisations as well as from individuals.
From the foregoing paragraphs it becomes clear that an unprecedented
amount of 'diplomatic time' is now devoted to work in and with international
organisations. A high proportion of this work is naturally done by professional
experts,9 many without previous diplomatic experience. Some of the practical
implications of this are dealt with in Chapter 43. But in the broadest sense, this
world wide tendency means that many technicians, senior and junior, learn to
become diplomats, and many diplomats acquire an ability to handle, or at least
'hold the fort' in what might be called general technical discussion. Such
versatility is particularly valuable to countries who need or wish to keep up
with technical developments but do not possess the manpower or financial
resources to send technical experts to every conference or international
committee. It also permits a certain elasticity of movement in that in some
specialised fields professional diplomats find themselves developing a reputable
degree of aptitude. This is particularly true in disarmament and allied subjects.
Thus, sometimes the later career of a diplomatic officer may be channelled not
in accordance with his familiarity with region or language so much as in
directions indicated by economic, social or technical su bjects to which he has
made a contribution.
Chapter 38
international disputes
38.1.
Over the last two centuries international society has evolved a number of
procedures whereby disputes between states can be settled by peaceful means. 1
While it would be beyond the scope of this work to attempt a history of these
developments, the following salient points may be noted. 2 The first cases arose
under the General Treaty of Friendship, Commerce and Navigation (,the]ay
Treaty,') so named after the American Secretary ofState,]ohn]ay) of 1794.
The Treaty dealt with all outstanding issues between the two countries
accumulated since 1776, except three which were remitted to arbitration by
mixed commissions. Simpson and Fox described this step as:
'a new starting point for the development of international arbitration, after the process,
in the preceding period of a century or more, had come to be regarded as virtually in
desuetude. '3
348
3 8 .5.
3 8 6 .
In 1945, when the United Nations came into being, the (new) International
Court of Justice became the principal judicial organ of the United Nations.
(Art. 92 of the UN Charter.)4 Since that time, a number of cases have been
submitted to the Court but not at the same rate as in the case ofits predecessor,
the Permanent Court.
38 .7.
With regard to other means of settling disputes, it may be recalled that when
the Charter was drafted, the general political presumption was that, despite
difficulties between the major allies, some known and others unknown at the
time to the general pu blic, a general unity of purpose and policy among
the leading Powers could be achieved and maintained. On this hypothesis the
central problem would be that of ~olving peacefully secondary problems left
over from the Second World War or arising from the resurgence of previously
independent nations or the appearance of new ones. Fears that there might
later be differences between leading Powers were not overlooked (though
mostly unexpressed), but the hope persisted that the habit of cooperation
engendered in wartime would endure in the form of an ability and willingness
to cooperate for the maintenance of peace. Such future cooperation, the draft
Charter made clear, would have to be based on Article 24( I) of the Charter
which laid down that the Members of the United Nations:
'confer on the Security Council primary responsibility for the maintenance of
international peace and security.... '
The Charter
349
The Charter
38.8.
38.9.
It will have been noted from Article 33( I), that the obligation to seek a solution
by negotiation or any of the approved procedures only arises in the case of
disputes the continuation of which is likely to endanger the maintenance of
international peace and security. Article 37(2) makes it clear that the judge of
'likelihood' will be the Security Council itself, a determination consistent with
the analysis given above.
38.10.
In recent years, as the following pages will show, examples can be found of
recourse to a number of different procedures for the peaceful settlement of
disputes. Some procedures involve the use of permanent bodies, paramount
amongst which is the International Court of.J ustice; others are customarily
devised ad hoc. A new and increasingly important field of international
litigation concerns human rights, while closer regional integration, represented
most clearly by the European Community, also leads to a need for permanent
courts, which quickly acquire a heavy workload.
38.1 I.
The rest of this chapter seeks to bring out certain important features of the
various methods available to governments for the peaceful settlement of
disputes as defined in Article 33( I).
Negotiation
38.12.
By contrast, all the other methods named in Article 33( I) bring into the
procedure other states or individuals who are not themselves parties to the
dispute. However, this relative simplicity of procedure, presupposes that each
government involved feels that it may be able to make, within the range of
tolerance of its own public opinion, sufficient concessions to render agreement
possible. Of course, the degree of tolerance is not unconnected with the nature
of a state's political system. Also, it is easier to present such concessions to the
pu blic if they can be represented as a necessary response to the pressure of a
stronger power, or indeed of the United Nations itself.
38 1 3.
350
38.15.
38.16.
All in all, good negotiation is founded on general good sense and good instinct
and, ofcourse, a will to succeed. Beyond this, there are great varieties of method
and procedure. And there are few more rewarding things in diplomacy than a
successful negotiation of whatever kind from which both or all parties derive
some satisfaction. For mutual satisfaction is the best guarantee of permanence.
Enquiry
38.17.
In a general context, enquiry can mean any form of search for information. In
this specialised context, it denotes a particular process of settling international
disputes which had its origin in the Hague Convention of 1899. Article IX of
this Convention stated the general principle as follows:
'In differences of an international nature involving neither honour nor vital national
interests, and arising from a difference of opinion on points offact, the signatory Powers
recommend that the parties who have not been able to come to an agreement by means
of diplomacy should, as far as circumstances allow, institute an International
Commission ofInquiry to facilitate a solution of these differences by elucidating the facts
by means of an impartial and conscientious investigation.'
38.18.
Impressed by the ideas in both the 1899 and 1907 Conventions, the General
Assembly in 1949 adopted a Resolution establishing the United Nations Panel
The Charter
351
38.19.
The Report on the Peaceful Settlement of Disputes, published in 1966, speaks with
unusual emphasis on this subject. After a thorough analysis of the situation at
the time, after references to the Commission of Inquiry, Conciliation and
Mediation of the Organisation of African States and to the Inter-American
Peace Committee sponsored by the Organisation of American States, the
Report proceeds:
'The Study Group ... suggests that the United Nations should make every endeavour,
by appropriate publications, to focus attention on the need for a more positive approach
by States to peaceful settlement and on the available procedures.'lo
38.20.
38.21.
38.22.
If the first two methods of solution commended in Article 33( I) are easy to
distinguish, the next one, mediation, is less easy to define precisely. It is closely
akin to, and yet slightly different from, an activity not listed in this Article and
yet often applied in United Nations proceedings, good offices. From the point of
view of a diplomat handling such matters, the obvious but fine distinction
would be that, whereas a Mediator would seem to be under some obligation to
suggest possible solutions, a person or organisation invited to afford 'good
offices' might well argue that his obligation was to provide every possible
facility including advice on prodecure, but that any proposals must come from
the parties themselves.
352
To make this definition complete, the words 'or organisation' should perhaps
have been added after 'or individual;' but the Darwin definition is better than
that quoted from Oppenheim in Satow (4th edn) which suggests, too narrowly,
that proposals are 'made by the mediator.' 14 Darwin quotes with approval
Article 4 of the Hague Convention of 1899 as describing the role of a mediator
as:
'reconciling two opposing claims and appeasing the feelings of resentment which may
have arisen between the States at variance.'
38 24.
Pointing out that this would make good offices a 'mediation of more limited
scope,' he continues:
'But the terminology is not exactly applied and good offices and mediation are
sometimes used indifferently [i.e. interchangeably].'
38 . 25.
38 26 .
In the early years of the United Nations, a number of major attempts were
made by the Security Council and the General Assembly to temper hostilities
or to go further and settle highly contentious questions by the use ofmediation.
In the case of Palestine cited above, Count Folke Bernadotte of Sweden was
appointed Mediator; after his assassination, Dr Ralph Bunche, later to become
the senior Under Secretary-General, took over as Acting Mediator. But the
attempt had to be given up in 1949. In Indonesia, a Committee ofGood Offices
was set up which brought about a truce between the Dutch and the Indonesian
nationalist movement; but the matter was finally settled by the Dutch and
Indonesians bilaterally. A very protracted effort was made to assist India and
Pakistan over Kashmir. But the matter proved too intractable, and the
problem was ultimately settled outside the United Nations through the good
offices of the Soviet Union which resulted in the Tashkent Declaration of 10
January 1966.
The Charter
38.27.
353
The degree of success achieved by the United Nations in this period was
disappointing, given the mandate enjoyed by the Organisation under Article
33( I) of the Charter. Judgements on the reasons are necessarily subjective, but
a few are suggested.
There has to be on the part of the contending parties an acceptance of the
thesis that a solution is both necessary and, no doubt with great patience,
attainable - that neither side can 'win' and that a compromise would be
better than living with the status quo. In the period following the Second
World War the circumstances in some of the cases did not fulfil these
conditions.
2. Since the 'unity of the Great Powers,' held to be the precondition of the
successful working of the security and peace-keeping work of the United
Nations, was not maintained, united world pressure behind United Nations
mediation could not be maintained either. The success of the Soviet
Government in acting as a mediator to bring an end to hostilities between
India and Pakistan over Kashmir was achieved expressly outside the United
Nations, and was the effective expression of Soviet presence and power in
the area.
3. With hindsight, it is fair to ask oneself whether United Nations mediators,
who were in the main not professional diplomatists, were right in using
normal diplomatic techniques of patient negotiation in their difficult work.
Could a more political approach, including the conscious use of publicity
and political pressure, have been more effective? Or would that kind of
approach also have been frustrated by considerations (I) and (2) above?17
4. The idea of the promotion of the peaceful settlement of international
disputes by mediation and good offices under United Nations sponsorship is
logical and contains much of good sense and promise, provided that behind
the rules and procedures there is real power. If the world, as a world of
independent states, moves into a period of history which, in terms of
economics and ideology, is less strained than the present, the experience
gained in recent years of a mixed diplomacy, in which politicians,
diplomats, international lawyers, administrators and others take a share,
could be of renewed value.
I.
Conciliation
38.28.
This word can be employed very generally as an aspect of good offices. But it
also has a precise significance in the context of certain international
instruments. In arguing in favour of the conciliation procedure, M. Henri
Rolin, the eminent Belgian jurist, stated:
'... l'essentiel de la conciliation est l'examen au fond, ce qui la differencie des bons
offices [good offices], suivi d'une recommendation non obligatoire (ce qui differencie
conciliation et arbitrage)')8
Against these advantages there have been two major arguments. First, there
are in fact treaties which bind the participants in advance to accept the
Conciliation Commission's views, thereby creating the concept of a 'binding
conciliation.' Secondly, and more important, a decision arising out of what is
354
Arbitration
3 8 .3 0 .
Paragraphs I -7 of this chapter have shown how for over a century from 1794
onwards the idea of involving third parties in the peaceful settlement of
international disputes was thought ofin terms ofarbitration, whether by mixed
commissions or by heads of third states (actually or, more usually, nominally)
or by any variant acceptable to the contending sides. In the twentieth century
other devices came into greater prominence which, while calling for thirdparty participation, did not necessarily call for a commitment by the
contending parties in advance to accept the eventualjudgment. A limitation in
this way of the initial commitment obviously makes it easier to accept, but,
equally obviously, makes the prospect of ultimate decisions much less certain.
In this situation the International Law Commission sought to unify the rules
governing the submission of international differences to arbitration. To this
end the Commission introduced into the General Assembly in 1958 a
Convention on Arbitral Procedure:!l based on what it called the 'principle of
non-frustration.' This principle attempted to ensure that once a country had
agreed to an arbitration, it could not later recede from that commitment.
Debate over this proposition over the next five years reached no practical
conclusion; on the contrary it revealed a deep difference of doctrine between
those countries which were prepared to accept some such limitation on
national freedom of choice at some stage in the arbitration proceedings and
those, particularly the Communist countries, who argued that at any moment
in the discussion, the autonomy of the national will of sovereign states could
become paramount.
Conclusion
355
The above illustrated the diversity of origins and views on arbitration. But at
least it seems that there is no significant limit on the possibilities of taking an
international dispute to arbitration. In United Nations terms the most
straightforward method is recourse to the International Court and this is often
provided for in bilateral or multilateral agreements which contain a clause to
the effect that the dispute regarding the meaning of the agreement will be
referred to the Court for decision.
A simpler possibility is for a direct appeal to be made by two countries in
disagreement to a third state in whose integrity and impartiality they both have
confidence. Thus, Chile and Argentina, pursuant to an Agreement dated 17
April 1896, appealed to the United Kingdom for arbitration over certain
frontier disputes. An Award was accordingly made on 20 November 1902; but
controversy having arisen between the parties regarding points in the region of
Palena, a further appeal for arbitration was made in 1964.22 Arbitration was
also requested later to determine the marine frontier in the Beagle Channel. 23
In the case Anglo-French disagreement over the continental shelf in the
English Channel, many of the arrangements for the arbitration were inspired
by those of the Permanent Court of Arbitration.
Specialised Agencies have also interested themselves in arbitration as a method
of peaceful settlement of disputes: for example the International Bank (IBRD)
has established a Centre for the Settlement of Investment Disputes. And
previous sections of this chapter have shown that questions can go to
arbitration through the Enquiry and Conciliation procedures.
In short, despite the variety of doctrines and the complex background of
procedures, arbitration is not an obscure or difficult resource for states which
require an answer to a specific question and are prepared to abide by an
undertaking to accept the arbitrator's decision. Failure to settle does not
suggest so much weakness in procedure as an absence of readiness to accept an
unfavourable judgment.
Conclusion
38 .35.
This summary will have shown that there is in fact no lack ofroutes to peaceful
settlement of international disputes. Any disappointment over achievement
lies more in the lack of urgent and persistent interest on the part ofmem bers of
the United Nations than on the part of the institution itself in the subject of
peaceful settlement of international disputes, which should be one of the main
items of continuous study and practical pursuit. There are honourable
exceptions such as the judicious intervention by the Secretary-General, Dr
Kurt Waldheim, in 1975 in the Greco-Turkish problem in Cyprus on the basis
of a mandate from the Security Council. But for anyone who doubts thejustice
of the previous comment, a search in the United Nations Yearbook for details of
activities in this field is recommended.
Chapter 39
Article 7( I) of the Charter lists among 'the principal organs of the United
Nations' an International Court of Justice. Chapter XIV of the Charter
(Articles 92-6) contains provisions relating to the Court and to its place in the
schemes of international institutions envisaged by the Charter. 2 Although
located at The Hague, the International Court of Justice is just as much an
organ of the United Nations as is the General Assembly or the Security
Council.
Article 92 of the Charter provides that:
'The International Court ofJustice shall be the principal judicial organ of the United
Nations. It shall function in accordance with the annexed Statute which is based upon
the Statute ofthe Permanent Court oflnternationaIJustice and forms an integral part of
the present Charter.'
Article 93( I) of the Charter provides that 'All Members of the United Nations
are, ipso facto, parties to the Statute of the International Court of Justice.'
Therefore it is impossible for a State to be a member of the United Nations
without also being a party to the Statute of the International Court ofJ ustice.
On 1 December 1976, Angola was admitted as the 146th member ofthe United
Nations.
Article 93(2) of the Charter provides that:
'A State which is not a Member of the United Nations may become a party to the
Statute of the International Court ofJustice on conditions to be determined in each case
by the General Assembly upon the recommendation of the Security Council.'
On II December 1946, the General Assembly adopted, upon the recommendation of the Security Council, a resolution 4 providing that Switzerland should
357
This obligation was also covered in the conditions upon which Switzerland,
Liechtensteirr and San Marino were permitted to become parties to the
Statute, and in those under which the Court is open to states not parties to the
Statute. In any case, irrespective of those provisions it is an established
principle of general international law that the decision of an international
tribunal is binding upon the parties. In practice, this has normally, but not
always, been accepted by losing parties.
39.3.
The first question to which this most important provision gives rise is whether
the right which it confers - i.e. the right to have recourse to the Security
Council - applies only to members of the United Nations or to all states entitled
to appear before the Court, whether as members of the United Nations (i.e.
under Article 93( I) of the Charter), or as non-members under the provisions of
Article 93(2) of the Charter or of Article 35(2) of the Statute. According to the
normal rule of international law treaties cannot confer any rights upon states
not parties to them (pacta tertiis nee noeent nee prosunt), 7 and if this rule were
applied literally, it is difficult to see how a state not a Member of the United
Nations could acquire any right of recourse to the Security Council. The
position would be different if either the conditions determined by the General
Assembly for the purposes of Article 93(2) of the Charter or those determined
by the Security Council for the purposes of Article 35(2) of the Statute had
made express provisions concerning the application of Article 94(2) of the
Charter to non-members of the United Nations. But in neither case was this
done. On the contrary, whereas both the General Assembly and the Security
358
39.4.
The second question to which Article 94(2) of the Charter gives rise is the
nature of the right conferred by the Article. Clearly, the right of recourse to
the Security Council in the event of a failure to comply with ajudgment of the
Court implies no right to demand that the Security Council shall take steps to
execute, or otherwise secure the enforcement of, the Court'sjudgement. Article
94(2) imposes no obligation upon the Security Council or upon the Members of
the United Nations. According to what is probably the better view, the
Security Council, when dealing with a case under Article 94(2), simply deals
with apolitical situation arising out of the failure of a state to comply with the
judgement of the Court. It also appears that Article 94(2) gives the Security
Council power to substitute its own recommendations for thejudgement ofthe
Court, but it is not clear whether, before it decides upon 'measures to be taken
to give effect to the judgement' - if it should so decide - it must first determine
the existence of a threat to the peace or a breach ofthe peace under Article 39 of
the Charter, or whether it is free to act independently of Article 39. 10
39.5.
This Article makes it quite clear that the existence ofthe International Court of
Justice under the Charter in no way limits the right of Members of the United
Nations to settle their disputes by other means. The express reference in Article
95 to 'other tribunals' shows that the Charter permits the existence, alongside
the International Court ofJustice, of other courts (including, no doubt, even
courts organised on a 'permanent' as opposed to an ad hoe basis) with power to
apply international law, while Article 33( I) of the Charter lays down the
general principle that
'The parties to any dispute, the continuance of which is likely to endanger the
maintenance of international peace and security, shall, first of all, seek a solution by
negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to
regional agencies or arrangements, or other peaceful means of their own choice.'
359
The operation of the Court is governed primarily by its Statute and by Rules of
Court adopted under Article 30 of the Statute. The effect of the Statute and
Rules is summarised, though briefly, below.
397
The original Statute, as annexed to the Charter, has not been amended. The
Court proposed 12 in 1969 certain amendments to Articles 22,23 and 28 (which
refer to the seat ofthe Court in The Hague), but the General Assembly deferred
consideration of the question. 13 The present Rules ofCourt were adopted on 10
May 1972 (replacing those which had operated since 1946) and were first
applied in 1973 in the Nuclear Tests cases (Australia v. France, New Zealand v.
France). The main changes in the Rules of Court were:
'to permit expressly the parties to influence the composition of ad hoc Chambers; to
suppress the right to a Reply or Rejoinder, thus reducing the normal number of
pleadings to the Memorial and Counter-Memorial; to exercise greater control over oral
proceedings by indicating precise questions to be dealt with orothers on which there has
been sufficient argument; to provide for accelerated and exclusively oral proceedings in
urgent requests for an advisory opinion and finally, to determine the Court'sjurisdiction
at the preliminary stage of the case and eliminate the express authorization in the Rules
for the joinder to the merits of a preliminary objection.' 14
The Court has a committee which is revising its Rules with a view to
modernising and speeding up the procedures. 15
39.8.
Articles 2-23 of the Statute relate to the organisation of the Court. The Court
consists of fifteen judges, 'no two of whom may be nationals of the same State.'
(Article 3.) The judges are to be 'elected regardless of their nationality from
among persons of high moral character, who possess the qualifications required
in their respective countries for appointment to the highest judicial offices or
are jurisconsults of recognised competence in international law.' (Art. 2.)
Nominations of candidates are made by the national groups in the Permanent
Court of Arbitration (Art. 4) 16 and 'those candidates who obtain an absolute
majority of votes in the General Assembly and in the Security Council shall be
considered as elected.' (Art. 10.) It is the intention' not only that the persons to
be elected should individually possess the qualifications required, but also that
in the body as a whole the representation ofthe main forms ofcivilisation and of
the principal legal systems of the world should be assured.' (Art. 9.) Judges are
elected for nine years and may be re-elected. (Art. 13.) They may not 'exercise
any political or administrative function or engage in any other occupation ofa
professional nature.' Nor may they 'act as agent counsel or advocate in any
case,' or participate in cases in which, before election, they have taken part in
any capacity. Doubts on these points 'shall be settled by the decision
of the Court.' (Arts. 16-17.)17 The judges 'when engaged on the business
of the Court shall enjoy diplomatic privileges and immunities.' (Art. 19.) 18 The
Court elects its President and Vice-President for three years: they may,
however, be re-elected. (Art. 2 I.) The Court appoints its own Registrar and
other staff (Art. 2 I .) Although the seat of the Court is at The Hague, this 'shall
not prevent the Court from sitting and exercising its functions elsewhere
whenever the Court considers it desirable.' (Art. 22.) The Court may sit either
360
as a full Court - it is provided that 'a quorum of nine judges shall suffice to
constitute the Court' (Art. 25) - or in Chambers of three or more judges.
Chambers for labour cases and for cases relating to transit and communications
are specifically mentioned in the Statute, but these are not exclusive (Art. 26),
and 'with a view to the speedy despatch of business, the Court shall form
annually a Chamber composed of five judges which, at the request of the
parties, may hear and determine cases by summary procedure.' (Art. 29.)19 As
already stated, the Court makes its own rules of procedure. (Art. 30.) Article 3 I
contains important provisions concerning the rights of the parties to be
represented on the Court by a judge of their own nationality. If the Court
already includes judges of the nationality of both the parties, thesejudges 'shall
retain their right to sit in the case before the Court.' If the Court includes a
judge of the nationality of one of the parties only, the other party has the right
to appoint ajudge for that particular case. Ifthe Court does not include ajudge
of the nationality ofeither ofthe parties, both parties have the right to appoint a
judge for that particular case. The additional judges appointed in this way
'shall take part in the decision on terms of complete equality with their
colleagues. '20
Articles 34-8 of the Statute relate to the competence ofthe Court. In so far as the
jurisdiction of all international tribunals ultimately rests upon the consent of
States, these Articles are of the greatest importance. Article 34 lays down the
general principle that 'Only States may be parties in cases, before the Court.'
Thus the United Nations, though it is' an international person' and though it
has 'capacity to bring international claims,' 21 has no capacity to prosecute such
claims before its own 'principal judicial organ.' This remains true, even if the
State against which the claim is brought is willing to have the matter
adjudicated by the Court. The capacity of the United Nations and its organs
and specialised agencies to initiate proceedings before the Court is therefore
limited to the right to request advisory opinions. 22 However, Article 34 also
provides that the Court 'may request of public international organizations
information relevant to cases before it, and shall receive such information
presented by such organizations on their own initiative.'
39.10.
By contrast with Article 35 of the Statute, which deals with the general right of
access to the Court, Article 36 is concerned with thejurisdiction ofthe Court to
determine the particular dispute submitted to it. Article 36( I) provides that
The jurisdiction of the Court comprises all cases which the parties refer to it and all
matters specially provided for in the Charter of the United Nations or in treaties and
conventions in force.
This paragraph mentions two of the three ways in which a case may be brought
before the Court, the third way being mentioned in Article 36(2). These three
ways will now be considered in turn.
39. I
I.
The first way in which a case may be brought before the Court is by the consent
361
of the parties (i.e. 'all cases which the parties 23 refer to it'). Usually this consent
is given in the form of a written agreement or treaty, known as a 'special
agreement' (compromis).24 However, so long as the necessary consent is really
present, the Court is not punctilious about the form. As the Permanent Court of
International Justice said in the case of the Minority Schools in Upper Silesia:
The acceptance by a State of the Court's jurisdiction in a particular case is not, under
the Statute, subordinated to the observance of certain forms, such as, for instance, the
previous conclusion of a special agreement. 25
Citing this decision, the International Court ofJustice in the Corfu Channel case
(Preliminary Objection) said:
Furthermore, there is nothing to prevent the acceptance ofjurisdiction, as in the present
case, from being affected by two separate and successive acts, instead of jointly and
beforehand by a special agreement. 26
39.12.
The second way in which a case may be brought before the Court is under a
treaty providing for the submission of a certain class of disputes to the Court by
the unilateral application of one of the parties. The treaty concerned may be a
treaty relating purely to the settlement of disputes - in which case the article
providing for the reference by unilateral application of one class of dispute to
the Court may be accompanied by other articles providing for the reference of
other classes of disputes to other bodies - or it may be a treaty dealing with
other matters (e.g. commerce and navigation) and containing an article
providing that any dispute relating to the interpretation or application of that
particular treaty may be referred to the Court by one party only. In either case
the competence of the Court depends upon whether the dispute actually
referred to the Court is or is not within the class of disputes covered by the
treaty. The reference in Article 36( I) to 'all matters specially provided for in the
Charter of the United Nations' is a drafting error, as no matters are in fact
specially provided for in this way.
39.13.
The third way in which a case may be brought before the Court is under the
provisions of Article 36(2) of the Statute which reads as follows:
The States parties to the present Statute may at any time declare that they recognize
as compulsory ipso facto and without special agreement, in relation to any other State
accepting the same obligation, the jurisdiction of the Court in all legal disputes
concermng:
As between two states, both of which have made the declaration referred to in
this paragraph (usually known as the 'Optional Clause') and have deposited it
with the Secretary-General of the United Nations, one is entitled to institute
proceedings before the Court against the other by means of a unilateral
application, and the Court will havejurisdiction so long as the subject matter of
the dispute is covered by the declarations and is not excluded by any
362
reservation. For this purpose the respondent state is entitled to rely upon any
reservation made by the applicant state.
39.14.
In the event of a case being brought before the Court by unilateral application,
it is always open to the other party to raise a preliminary objection, provided he
does so before the expiry of the time-limit fixed for the delivery of his first
pleading. The effect of raising an objection is to cause the proceedings on the
merits to be suspended while the Court hears the objection. Three possibilities
are open to the Court: either to uphold the objection, or to overrule it, or tojoin
it to the merits. 27
39.15.
Although the International Court of] ustice was established as a new Court, it is
provided in Article 36(5) of the Statute that 'Declarations made under Article
36 of the Statute ofthe Permanent Court ofInternationaljustice and which are
still in force shall be deemed, as between the parties to the present Stature, to be
acceptances of the compulsory jurisdiction of the International Court of]ustice
for the period which they have still to run and in accordance with their terms;'
and in Article 37 that 'Whenever a treaty or convention in force provides for
reference of a matter to a tribunal to have been instituted by the League of
Nations, or to the Permanent Court ofInternational]ustice, the matter shall,
as between the parties to the present Statute, be referred to the International
Court of]ustice.'
Article 36(6) contains the important provision that 'In the event ofa dispute as
to whether the Court has jurisdiction, the matter shall be settled by the decision
of the Court.'
39.16.
As well as the question of its jurisdiction, the Court will also consider that ofthe
admissibility of a case. Admissibility is a concept separate from that of
jurisdiction and goes to the nature of a case. If the Applicant's claim is found to
concern a dispute which has disappeared, or if a case is found to be moot,
academic or devoid of object and purpose, then the Court will declare the case
inadmissible and decline to adjudicate upon its merits. 28 The reason is to
safeguard the judicial function of the Court. A case can become moot after the
filing of the application, for example as a result of a change of practice or the
making of undertakings on the part of the respondent. 29
Applicable law
39. 1 7.
Article 38, which is one of the most important articles in the whole Statute,
states:
I.
The Court, whose function it is to decide in accordance with international law such
disputes as are submitted to it, shall apply:
363
(d) subject to the provisions of Article 59, judicial decisions and the teachings ofthe
most highly qualified publicists of the various nations, as subsidiary means for
the determination of rules of law.
2.
This shall not prejudice the power of the Court to decide a case ex aequo et bono. ifthe
parties agree thereto.
The importance of this Article lies in the fact that the sources mentioned in subparagraphs (a), (b) and (c) of paragraph 1 above are now generally regarded as
the sources of international law which airy international tribunal, to which a
dispute is referred for judicial settlement, should apply in the absence of an
express direction to the contrary. In the particular case of the International
Court of Justice the only possible direction to the contrary is an agreement
between the parties that the Court should decide the case ex aequo et bono. The
effect of such a direction - which is likely to be rare - would be that the Court
need not confine itself to applying the existing law but could, if it deemed the
existing law to operate harshly or unjustly, give a decision more in keeping with
the essential requirements of justice and equity. It may also be noted that,
whereas sub-paragraphs (a), (b) and (c) of Article 38(1) indicate the sources
where international law may be found (i.e. international conventions,
international custom and the general principles of law recognized by civilized
nations), sub-paragraph (cl) of the same paragraph indicates the 'means for the
determination of the rules of law.' Judicial decisions (by which is meant the
decisions of the national tribunals and also - and above all - of international
tribunals, including the Court itself) and the teachings of publicists are
mentioned as 'subsidiary means' for this purpose, the principal means being of
course the states themselves who are parties to the conventions or who are
responsible for the customary law or the general principles oflaw referred to in
sub-paragraphs (a), (b) and (c). Sub-paragraph (cl), while classifying 'judicial
decisions' among the 'subsidiary means for the determination of rules oflaw,'
expressly states that these are 'subject to the provisions of Article 59,' which in
turn states that 'The decision of the Court has no binding force except between
the parties and in respect of that particular case.' The International Court of
Justice is therefore, in strict law, not bound even by its own precedents, let
alone by the decisions of inferior international tribunals. In practice, however,
the Court attaches great weight to previous decisions, not only its own and
those of the Permanent Court of International Justice, but also on occasions
those of arbitral tribunals of high standing. 30
Articles 39-64 of the Statute and Articles 35-65 of the Rules of Court relate to
procedure before the Court, and it is necessary to single out only a few matters
for attention. Contentious cases are begun by the filing with the Court of either
an application or the compromis, or special agreement, where one exists. The
application is signed by the agent or some other duly authorised person. As
agent, it is usual to appoint a legal adviser to the Foreign Ministry or a
diplomatic representative in The Hague. The agent, who acts as the link
364
between the Court and the applicant state, is responsible generally and at all
stages for the handling of the case. In drawing up pleadings and presenting
argument orally the agent is often assisted by Counsel, including in some cases
law officers, ministers of foreign affairs or professors. An application must
identify the parties, the basis of the Court's jurisdiction, the nature of the
dispute, and the precise nature of the claim. It must summarise the main facts
and grounds on which the claim is based. These are developed in detail in the
Memorial, to which documentary evidence is attached. 31
39- I 9
The official languages of the Court are French and English, although there is
nothing to prevent a party using another language provided it arranges for a
translation to be made into one or other ofthe official languages. (Art. 39 ofthe
Statute; Art. 42 and 64 of the Rules of Court.) The procedure consists of two
parts: written and oral, and the oral proceedings may include the hearing of the
evidence of witnesses. (Art. 43 of the Statute.) Article 46 provides that 'The
hearing in Court shall be public, unless the Court shall decide otherwise, or
unless the parties demand that the public be not admitted.' The Court has
power to make orders governing any aspect of the conduct of the case (Art. 48),
to call upon the parties to produce documents and supply explanations (Art.
49), to appoint an individual or a number of persons to carry out an enquiry
or give an expert opinion (Art. 50) or to put its own questions to the parties.
(Art. 57 of the Rules.)
39-20.
This situation has arisen in the Fisheries Jurisdiction cases, the.Nuclear Tests cases,
the Pakistani Prisoners of War case and the Aegean Sea Continental Shelf case. In its
judgement in the Fisheries Jurisdiction case (United Kingdom v. Iceland), the Court
stated:
'It is to be regretted that the Government of Iceland has failed to appear in order to
plead its objections.... '32
These objections had been indicated in letters and telegrams from the Foreign
Minister to the Registrar, but no Icelandic Agent was appointed and no
Counter-Memorials were presented to the Court despite its Orders fixing the
timetable for pleadings. The Court, however, considered all the material
concerning the Icelandic Government's attitude and 'stressed that in applying
Article 53 of the Statute in this case, the Court has acted with particular
circumspection and has taken special care, being faced with the absence of the
respondent State.'33 A similar approach was adopted by the Court in the other
cases in which that situation arose. 34
39-2 I.
The deliberations of the Court take place in private and remain secret (Art. 54.)
All questions are to be decided by a majori ty ofthejudges present, and in the event
of an equality of votes, the President or thejudge who acts in his place has a casting
vote. (Art. 55. )35 The judgement, which must contain the names of the judges tak-
365
ing part, is also required to state the reasons on which it is based. (Art. 56.) Any
judge is entitled to deliver a separate opinion (Art. 57), which may be either a 'dissenting opinion,' or an 'individual opinion' agreeing with the conclusions of the
judgement, though not necessarily with the reasons on which it is based. The
judgement is final and without appeal. The Court may, however, be asked to
construe it ifa dispute arises as to its meaning or scope (Art. 60)jb or even to revise
it in the event of a new fact being discovered 'ofsuch a nature as to be a decisive
factor, which fact was, when the judgement was given, unknown to the Court
and also to the party claiming revision, always provided that such ignorance
was not due to negligence.' The application for revision must be made within
six months of the discovery of the new fact, and no application for revision may
be made after the lapse often years from the date of the judgement. (Art. 61.)
39.22.
Article 62 provides that 'Should a State consider that it has an interest ofa legal
nature which may be affected by the decision in the case, it may submit a
request to the Court to be pennitted to intervene.' It is for the Court to decide
whether or not to accept such a request. (Art. 62.) Such requests are rare. Fiji
applied to intervene in the two ,Nuclear Tests cases brought by Australia and
~ew Zealand against France. When the Court found that the cases were
without object, it also found that the Fijian applications thereby lapsed. 37
However, third parties have an automatic right to intervene, 'whenever the
construction of a convention to which States other than those concerned in the
case are parties is in question.' But, if they exercise this right, they are bound by
the judgement. (Art. 63,) Article 64 provides that 'U nless otherwise decided by
the Court, each party shall bear its own costs.' But the costs of the Court are met
not by the parties (as is the case with arbitrations) but from the UN budget.
2.
The Court shall have the power to indicate, if it considers that circumstances so
require, any provisional measures which ought to be taken to preserve the respective
rights of either party.
Pending the final decision, notice of the measures suggested shall forthwith be given
to the parties and to the Security Council.
In some cases, the Court has ordered both parties to refrain from taking any
action 'which might aggravate or extend the dispute ... or prejudice ... rights
... in respect of the carrying out of whatever decision the Court may render in
the case. '38 If the rights are such that any breach of them eventually found
could be repaired (for example, by the payment of compensation), or if the
parties have already accepted obligations to refrain from actions which would
aggravate the dispute (for example, through the Security Council), the Court
will not order interim measures. 39 It may be a matter of considerable political
importance whether or not, in a given case, the Court decides to indicate
provisional or interim measures.
366
39.24.
Under Article 66 of the Rules of Court, requests for the indication of such
measures shall be treated as a matter of urgency and' if the Court is not sitting,
the Members shall be convened by the President forthwith.' Even before that
'the President shall, if need be, take such measures as may appear to him
necessary in order to enable the Court to give an effective decision.' The Court
has power in certain circumstances to indicate interim measures before it has
decided that it has jurisdiction. Such measures had been indicated where the
Court has considered it probably did have jurisdiction but not where it clearly
lacked such competence. 40 The Court is entitled to indicate measures other
than those proposed in the request and even to indicate measures proprio motu
(i.e. without any request having been made), and it may 'at any time by reason
of a change in the situation revoke or modify its decision indicating interim
measures of protection.'41 It is a controversial question whether the measures
indicated by the Court are legally binding or not. The words 'indicate' and
'suggested' in Article 41 give the impression that the measures are not intended
to be binding, but it has been argued that 'it is in a necessary consequence ofthe
bindingness of the final decision that the interim measures intended to preserve
its efficacy should equally be binding. '42 The measures lapse upon the giving of
judgement upon the merits (whatever the circumstances at that time 43 ) orupon
a finding that the Court lacks jurisdiction. 44
Advisory opinions 45
39. 25.
The General Assembly requested eleven advisory opinions and the Security
Council one during the period 1945-76.46 The other bodies authorised to
request advisory opinions include the Economic and Social Council, the
Committee on Applications for Review of Administrative Tribunal Judgements, thirteen Specialised Agencies (all except the Universal Postal Union)
and the International Atomic Energy Agency; and of those bodies and
agencies, the Committee on Applications, UNESCO and the International
Maritime Consultative Organisation each made one request. Of the total of
fifteen advisory opinions, four have concerned the interpretation of the
Charter,47 three the interpretation of other treaties,48 four the situation in
South West Africa (Namibia)4!1 and three the administration of the international civil service. In addition, there is the most recent case, that
concerning the Western Sahara in 1975.
39.26.
What is a 'legal question' within the meaning of Article 96? The term is 'not to
be interpreted restrictively.' ~o The Court has stated that' ... the contingency
Advisory opinions
367
that there may be factual issues underlying the question posed does not alter its
character as a 'legal question' ... 51 Thus, 'a mixed question of law and fact is
none the less a legal question within the meaning of Article 96 ... ' and so is a
question about rights or obligations at an earlier point of time than that of the
Opinion. 52 The fact that an Advisory Opinion has been requested on a political
issue does not make the question a 'political' rather than a 'legal' one. As is
stated in a case about the interpretation of the UN Charter, 'the Court cannot
attribute a political character to a request which, framed in abstract terms,
invites it to undertake an essentially judicial task, the interpretation of a treaty
provision.' 53 The Court is not prevented from giving an Advisory Opinion on a
legal question by reason only of its being cast in abstract terms. 54 In another
case it was stated that 'the mere fact that it is not the rights ofStates which are in
issue in the proceeding cannot suffice to deprive the Court of ... competence.
. . .'55 Similarly, the Court is not debarred from giving an Opinion for the sole
reason that the question touches upon a contentious issue involving a state
which contests before the Court the. latter's power to exercise its advisory
function, 56 or which abstained from voting on the Resolution requesting the
Advisory Opinion or which previously declined an invitation to submit the
dispute to the Court by special agreement. 57 But if a question is not a legal one,
the Court 'must decline to give the opinion requested.'58
39.27.
39.28
Advisory Opinions have no binding force and states have indicated reservations over their terms in some instances. 64 Nevertheless such opinions are
'authoritative in the sense that their legal correctness cannot be officially or
formally questioned by the organ to which they are rendered, acting
in its corporate capacity.'65 Also, since they emanate from 'the principal
judicial organ of the United Nations' and the highest international tribunal in
the world, 'whatever be their formal authority, their persuasive character and
substantive authority must be great. '66 Moreover, Advisory Opinions may in
certain circumstances be negatively binding, in the sense that, if the Court were
to indicate that a certain course of action would be definitely illegal or that, of
various courses of action proposed only one would be legal, it would be difficult
in practice for the organ requesting the opinion not to follow the course
advocated by the Court. Finally, there is nothing to prevent Advisory
Opinions being given binding force by agreement. 67
CHAPTER 40
organisations
4.1.
40.2.
40.3
The most important of the arrangements made at this time was that drawn up
for the United Nations itself. The Charter of the United Nations made only
very general provision for privileges and immunities. Article 104 provided that
'The Organization shall enjoy in the territory ofeach of its Members such legal
capacity as may be necessary for the exercise of its functions and the fulfilment
of its purposes.' Article 105 required that the Organization should enjoy 'such
privileges and immunities as are necessary for the fulfilment of its purposes' and
that Representatives of Members and officials ofthe Organisation should enjoy
'such privileges and immunities as are necessary for the independent exercise of
their functions in connection with the Organization.' As was envisaged in
Article 105, there was then negotiated a detailed international agreement for
the application of these general provisions. This was the General Convention
369
on the Privileges and Immunities of the United Nations,3 which was adopted
by the General Assembly of the United Nations on 13 February 1946 and
opened for accession by UN Members. It has received overwhelming support
from Members although the United States, the host state to the Organisation,
has never accepted it and instead regulates its relations with the United
Nations on the basis of a Host State Agreement with the Organisation. 4
40.4.
40.5.
370
40.7.
The only officials of the United Nations who under the General Convention are
accorded privileges and immunities on the diplomatic scale are the SecretaryGeneral himself and all Assistant Secretaries-General. These 'High Officers'
are given all the privileges and immunities accorded under international law to
an ambassador. The reference to international law may now be taken as a
reference to the Vienna Convention on Diplomatic Relations. The state of
which a High Officer of the United Nations is a national or permanent resident
need therefore only accord him the more limited immunities which it is obliged
under Article 38 of the Vienna Convention to accord to diplomatic agents
under the same circumstances. The Convention imposes serious obligations on
the United Nations itself to balance the immunities which it accords. It stresses
that privileges and immunities are granted to officials in the interests of the
United Nations and not for the personal benefit of the individuals themselves.
The Secretary-General has the duty to waive the immunity of an official where
in his opinion immunity would impede the course ofjustice and can be waived
without prejudice to the interests ofthe United Nations. No comparable duty is
imposed on states by international law or by treaty as regards the waiving of
any immunity enjoyed by their diplomats or consuls, but a duty is laid on them
by the General Convention to waive the immunity of their representative
where this can be done without prejudice to the purpose for which the
immunity is accorded. The United Nations is obliged to cooperate with
Members to facilitate the administration ofjustice and the observance ofpolice
regulations, and to prevent any abuse of privileges or immunities.
371
40 8 .
Experts on missions for the United Nations are treated separately from officials.
The distinction between an official and an expert is that while an ofIicial has a
contract of employment with an international organisation and is invariably
subject to the staff rules or regulations of the organisation which employs him,
the expert is engaged for a specific task, his contract relates only to the
performance of and remuneration for that task and he is not subject to the staff
rules of the organisation. He is not the servant of the organisation but is in the
position of an independent contractor. The period of service is not the
determining factor, for an organisation may recruit officials who are employees
on a short-term basis (for example additional secretaries or interpreters for a
conference) or on a part-time basis, and an expert may be engaged full-time
on some task for an international organisation for a prolonged period. Nor is
the type of work a guide to the status as expert or official. The tasks for which
experts may be engaged are infinitely varied. More typical assignments include
serving independently on a committee of experts, fact-finding and reporting to
the organisation on some area within its concern, advising on some major new
purchase or enterprise which the organisation is contemplating. Experts under
the United Nations General Convention are accorded, during the period of
their missions and on journeys in connection with their missions, immunity
from personal arrest or detention and from seizure of their personal baggage,
inviolability for their papers and documents, the right to communicate with
the United Nations in code, by courier or by bag, the facilities in respect of
exchange control and currency restrictions which the state concerned accords
to representatives of foreign governments on temporary official missions, and
diplomatic treatment for their personal baggage. In respect ofwords spoken or
written and acts done by them in the course of their mission, experts are
accorded immunity from every form of legal process for an indefinite period.
The Convention imposes on the Secretary-General the same duty as regards
the waiver of the immunity of an expert as is imposed in regard to the immunity
of an official.
40.9.
The scale of privileges and immunities set out in the General Convention on the
Privileges and Immunities of the United Nations was used as a model for other
international organisations having worldwide membership and responsibilities. For the most part the United Nations scale was treated as a ceiling, and
minor reductions in privileges and immunities were negotiated in the case of
other organisations. It was accepted that few other international organisations
had to carry out tasks of such political sensitivity or physical danger as the
United Nations itself and that on a basis of functional need they could not
therefore lay claim to the same level of immunity. The most important of the
international agreements which followed the United Nations pattern was the
Convention on the Privileges and Immunities ofthe Specialised Agencies of the
United Nations,S which was adopted by the General Assembly of the United
Nations on 21 November 1947. The Specialised Agencies Convention set out a
detailed scale of privileges and immunities for the organisation and for various
categories of persons connected with it - representatives of member states and
United Nations officials - which was closely based on the United Nations scale
and was described as 'the standard clauses.' The standard clauses made no
provision for experts, and they provided that only the executive head of each
372
Specialised Agency, including any official acting on his behalf during his
absence from duty, should be accorded 'high officer treatment' - that is the
additional privileges and immunities which are given to diplomatic agents
under international law. Each Specialised Agency can, in accordance with its
own constitutional procedure, make modifications as regards itself in the
standard clauses at the time when the Convention becomes applicable to it or
subsequently, and a number have done so. Several Specialised Agencies have
made provision, on the lines of the United Nations Convention, in regard to
experts. The International Labour Organisation have made special provision
to treat as 'representatives' the Employers' and Workers' members and deputy
mem bers of the Governing Body of the Organisation - who do not represent
member governments - and have also provided that any Deputy DirectorGeneral of the International Labour Office and any Assistant DirectorGeneral of the International Labour Office shall be accorded 'high officer
treatment.' By 1959 the Specialised Agencies Convention applied to thirteen
Specialised Agencies of the United Nations, b with particular modifications for
each one which are set out in the various Annexes.
4.10.
The United Nations scale of privileges and immunities has also been generally
followed in the case of a number of important regional international
organisations. Examples which may be quoted (although in each case the
relevant international agreement must be consulted to ascertain the differences
from the United Nations precedent) include the North Atlantic Treaty
Organization,7 the Central Treaty Organisation (CENTO), 8 Western
European Union, Y the Council of Europe lO and the Customs Cooperation
Council. 11
4.1 I.
373
others. The first four of these organisations are also covered by the Convention
on the Privileges and Immunities of the Specialised Agencies of the United
Nations (although not all members have undertaken to apply the Specialised
Agencies Convention to them).
40.12.
4. 1 3.
This example illustrates one of the most important justifications for the
granting of privileges to international organisations and their staffs: the need
for financial equality as between the host state to the organisation and the other
members. The host state should not be entitled to make, through the presence
of the organisation on its territory, a direct profit at the expense of other
contributors to the budget of the organisation. Of course the host state makes
some indirect profit because representatives of other governments come there
for meetings, bringing and spending foreign exchange; and there are other
intangible benefits accruing to capitals which can attract a number ot
international organisations to set up house there. But it is generally accepted as
wrong in principle that the host state should tax the salaries paid to officials out
of the budget of the organisation and keep the proceeds for itself, or that it
should subject the organisation to direct taxation or even to indirect tax in
respect of its major purchases. This need for equality between member states
does not apply in the case of the diplomat's tax exemption. The diplomat is not
exempt from such indirect taxes as value added tax or purchase tax on the
goods he buys, because this is administratively very difficult to arrange and the
reciprocal nature of diplomatic relations means that no one government
benefits overall at the expense of others. But in the context of international
organisations there is no real reciprocity. If the host state could levy indirect
taxes on an organisation in its territory, or customs on such an organisation's
imports, it could make an undue profit at the expense of the other members
without suffering any reciprocal loss. Of all the privileges accorded to
international organisations, therefore, tax exemption is the most readily
conceded.
4. 14.
374
Nations it is easy to see that its officials must be free from pressure and from
harassment in the performance of their delicate and important tasks in the
territory of members, just as it is essential for diplomats to be free and
independent of pressures from the authorities of the receiving state. But
international organisations have tended to multiply at an unforeseen rate and
to assume functions such as the financing of international telecommunications
systems,19 or the development of rocket launchers,20 or the development of
better weather forecasting,21 which are far removed from the functions of
traditional diplomacy. While perhaps earning a little extra foreign exchange,
the host state does not derive any reciprocal advantage in granting immunities
to international organisations and persons connected with them, such as it
obtains for its own representatives abroad when it accords diplomatic and
consular immunities to foreign diplomatic agents. If persons enjoying
immunity by virtue of their connection with an international organisation
behave unacceptably or cause a security problem in the host state, there is no
swift and reliable method analogous to declaring a diplomat persona non grata,
whereby that state can ensure that the offenders are immediately removed from
its territory. It therefore became necessary, particularly in those states where
public and parliamentary opinion is sensitive to any apparently excessive grant
of immunity, to make quite clear that immunities were not being granted
beyond those which were necessary to enable the organisations concerned to
function effectively, and that privileges and immunities would not be granted
so as to enable any international organisation to carry on a commercial activity
from a position of advantage over its competitors.
415
375
40. 16.
The immunity from jurisdiction ofboth officers ofthe Organisation and experts
is subject to an exception in regard to motor traffic offences and claims resulting
from motoring accidents, parallel to the exception regarding the Organisation
itself. The tax exemption given to the executive head and the staff members of
the Organisation in regard to their salaries and emoluments is made
conditional on their paying tax to the Organisation itself, the tax collected to be
used for the benefit of the Organisation. The practical advantages of this
'internal tax' arrangement are that:
Equality is created between the different members of an international secretariat
(which would not occur if the staff members were paying tax at varying rates to their
home government);
2. The host state is not making a tax profit as it would do ifit could tax staffmembers on
the basis of their residence in its territory;
3. The staff members do not enjoy a tax-free status which might be resented by public
opinion, particularly in the host state.
I.
376
Headquarters agreetnents
40. I 8.
377
Organisation which were not required by the terms of the Convention on the
Privileges and Immunities of the Specialised Agencies of the United Nations.
This Agreement also set out in detail the way in which the broad terms of the
Specialised Agencies Convention were interpreted in United Kingdom law,
practice and procedure.
Examples of (2) (headquarters agreements which are required because the
host state is not party to a multilateral agreement regarding the status of the
organisation) include the Agreement between the United States of America
and the United Nations regarding the Headquarters of the United Nations 28
and the Headquarters Agreement between Switzerland and the United
Nations. 29 Switzerland is not a member of the United Nations.
Headquarters agreements in the third category (3) (where the multilateral
agreement contains no detailed provisions regarding privileges and immunities) usually relate to international organisations which do not need privileges
and immunities except in the host state. In such a case the multilateral
agreement which establishes the organisation may make no provision in regard
to privileges and immunities; it may make provision only in general terms (for
example 'shall be accorded in the territory of member States such privileges
and immunities as it may require'); or it may expressly provide that the
organisation and the host state shall conclude a headquarters agreement
regarding privileges and immunities to be approved by the council or other
executive body of the organisation. The last of these formulations, which has
become the most common, is the most satisfactory, since it emphasises the
interest of the generality ofmembers in the level of privileges and immunities to
be accorded and prevents the possibility of the secretariat of the organisation
negotiating an unacceptably high level of privileges and immunities with one
member state and using this as a precedent in similar negotiations with other
members. The United Kingdom has concluded headquarters agreements with
the five commodity organisations which have their headquarters in London. 30
In each case the relevant multilateral agreement called for the negotiation ofa
headquarters agreement between the host state and the organisation (there
being little general need for privileges and immunities in other member states,
except as regards taxation of the organisation) and the agreement, which
followed generally the precedent of the European Space Research Organisation described above, was approved by the Council of each organisation
before signature. Where the organisation does not have a widespread need for
privileges and immunities, this scheme, while ensuring that the interests of all
member states are consulted, is an economical way of providing the necessary
privileges and immunities. The negotiation of multilateral agreements to
regulate privileges and immunities consumes a great deal of expert time and
effort, and does not always lead to a more satisfactory result than a simple
headquarters agreement between the host state and the organisation.
37 8
Part III of the Vienna Convention deals with delegations to organs and to
conferences and again, with some important exceptions, such delegations are
given privileges and immunities on the full diplomatic scale. No inviolability is
given to the premises of the delegation, although residences are inviolable (this
anomaly resulted from argument at the Conference over the level appropriate);
the immunity ofthe head and of the diplomatic staffofthe delegation is limited
to immunity from criminal jurisdiction and immunity from civil jurisdiction in
respect of acts performed in the exercise of their functions (traffic accidents
are specifically not covered by immunity from civil jurisdiction); and personal
customs privileges of the head and of the diplomatic staff are limited to the
articles which they import in their personal baggage on first entering the
territory to attend the meeting or conference of the organisation. The privileges
and immunities given to families and subordinate staff are also somewhat
below the full diplomatic scale. But the general level of privilege and immunity
goes far beyond what is accorded under the General Convention on the
Privileges and Immunities of the United Nations, or under any bilateral
headquarters agreement, to delegations to organs of an international
organisation or to conferences convened by it. The host state has no power to
declare any person entitled under Part III to immunity persona non grata, or to
379
Part IV of the Vienna Convention provides that observer delegations (that is,
delegations representing states which are not members of the international
organisation) are entitled to the same level of privileges and immunities as the
delegations of members which are covered in Part Ill.
40.22.
(a) are without prejudice to other international agreements in force between States or
between States and international organizations of a universal character, and
(b) shall not preclude the conclusion of other international agreements regarding the
representation of States in their relations with international organizations of a
universal character or their representation at conferences convened by or under the
auspices of such organizations.'
CHAPTER 41
The Commonwealth
of Nations
Balfour Definition
4 1 .1.
Statute of Westtninster
41.2.
The turning point in the history of the Commonwealth came with the
381
41-4.
It was also in 1949 that the title 'Commonwealth of Nations' was first used as an
alternative to the former title 'British Commonwealth of Nations,' which in
time it replaced completely. Nowadays it is simply referred to as the
Commonwealth. Thus, the concept of the Commonwealth has changed from a
group of countries owing allegiance to a single crown, to an association of
sovereign independent nations which includes alongside those members both
republics and countries with their own monarchs.
41.5.
FreedolD of decision
41.6.
In 1947, on the occasion of the Burma Independence Bill, the then British
Prime Minister, Mr C. R. Attlee, emphasised that 'The British Commonwealth of Nations is a free association of peoples, not a collection of subject
nations.' Burma was thus free to become an independent state outside the
Commonwealth and so decided, as did Eire (the Irish Republic) under the
Ireland Act of 1949. The Sudan took the same course in 1956 and between that
date and 1967 British Somaliland and Protectorate, 5 Kuwait, Southern
Cameroons, the Maldive Islands and the South Arabian Federation (including
Aden)6 ended their earlier, sometimes tenuous, imperial connections.
41.7.
None of the above countries had enjoyed the status of member country of the
Commonwealth at the time of decision. Only the Union of South Africa on its
declaration of a republic in 1961 and Pakistan in 1972, following the
recognition by Commonwealth governments of Bangladesh, the former East
Wing of Pakistan, as an independent state, voluntarily ceased existing
membership. There has been no case of any country being expelled, and there
is no machinery for expulsion. The withdrawal of South Africa in 1961 was,
however, due to what was felt to be the pressure of the majority of
Commonwealth governments on the South African Government for an
essential change in the system of racial apartheid to which the South Africans
were not willing to agree.
382
Member countries of the Commonwealth can now be said to fall within the
following broad categories:
Monarchical: Countries of which The Sovereign remains the constitutional
Head of State under the 'divisible monarchy' concept, namely: Australia,
The Bahamas, Barbados, Canada, Fiji, Grenada,Jamaica, Mauritius, New
Zealand, Papua New Guinea and the United Kingdom.
2. Republics in which the offices of Head of State and Head of Government are
combined, namely: Bangladesh, Botswana, Cyprus, The Gambia, Ghana,
Kenya, Malawi, Nauru, Nigeria, Seychelles, Sierra Leone, Tanzania,
Uganda and Zambia.
3. Republics in which the functions of Head of State are separate from those of
Head of Government, namely: Guyana, India, Malta, Singapore, Sri
Lanka and Trinidad and Tobago.
4. Other monarchies: Malaysia, Lesotho, Swaziland, Tonga and Western
Samoa. Of these Malaysia is an elective monarchy, the Head of State or
Yang di Pertuan Agong being chosen from among the Malay rulers of the
nine states of Malaysia. Each Head of State holds office for five years. In
Lesotho and Swaziland the King is designated by the Chiefs in accordance
with customary law. Tonga is a long-established hereditary monarchy. The
functions of the Head of State in Western Samoa are analagous to those ofa
constitutional monarch.
5. Rhodesia (Southern Rhodesia): In 1923, Southern Rhodesia was formally
annexed to His Majesty's dominions as a colony, and granted responsible
government subject to certain limitations. These last, however, largely fell
away over the years. In 1953 Southern Rhodesia became a part of the
Federation of Rhodesia and Nyasaland and in 1961 the colony was granted
a new constitution which replaced that of 1923. Following the dissolution
of the Federation of Rhodesia and Nyasaland on 31 December 1963, the
Government of Southern Rhodesia resumed those powers in the colony
which had been transferred to the Federal Government in 1953.
I.
41.10.
In 1965 the Rhodesian Prime Minister, Mr Ian Smith, and his ministerial
colleagues purported to declare Rhodesia independent, whereupon Her
Majesty, acting through the Governor, dismissed them from office. In June
1969, following a referendum in the colony which resulted in a large majority in
favour of a republican form of government, the Governor sought and obtained
The Queen's permission to resign. In consequence the Residual Mission ofthe
British High Commission in Salisbury and the Rhodesian Mission in London,
respectively, were closed. But, as was announced in the year following by the
then Foreign and Commonwealth Secretary, the illegal introduction of a
republican constitution in Rhodesia in no way affected the constitutional
position. This meant that because of its illegal declaration of independence,
made in 1965, Rhodesia had become a colony administered by a regime in
rebellion against Parliament and the Crown.
383
At the time of her Accession to the Throne The Queen's title was uniform
throughout the then monarchical Commonwealth, viz 'Elizabeth the Second,
by the Grace of God of Great Britain, Ireland and the British Dominions
beyond the Seas Queen, Defender of the Faith.' In December 1952, however,
Commonwealth Prime Ministers gathered in London concluded that the Title
was no longer in accord with modern constitutional relationships and that it
would henceforth be more appropriate that each monarchical member
country should use for its own purposes a form of title better suited to its own
particular circumstances.
41.13.
During the quarter century up to 1976, as countries which had had the status of
monarchies either left the Commonwealth Association (South Africa and
Pakistan) or became republics (e.g. Sri Lanka), and former dependencies
became independent, the list of the Royal Style and Titles was modified.
By the end of 1972 it read as follows:
United Kingdom
Elizabeth the Second, by the Grace of God of the United Kingdom of Great
Britain and Northern Ireland and of Her other Realms and Territories Queen,
Head of the Commonwealth, Defender of the Faith.
Canada
Elizabeth the Second, by the Grace of God of the United Kingdom, Canada
and Her other Realms and Territories Queen, Head of the Commonwealth,
Defender of the Faith.
AustraLia
Elizabeth the Second, by the Grace of God Queen of Australia and Her other
Realms and Territories, Head of the Commonwealth.
,New ZeaLand
Elizabeth the Second, by the Grace of God Queen of New Zealand and Her
Other Realms and Territories, Head of the Commonwealth, Defender of the
Faith
Jamaica
Elizabeth the Second, by the Grace ofGod of]amaica and of Her other Realms
and Territories Queen, Head of the Commonwealth.
384
Barbados
Elizabeth the Second, by the Grace of God, Queen of Barbados and of Her
other Realms and Territories, Head of the Commonwealth.
Mauritius
Elizabeth the Second, Queen of Mauritius and of H~r other Realms and
Territories, Head of the Commonwealth.
Fiji
Elizabeth the Second, by the Grace of God, Queen of Fiji and of Her other
Realms and Territories, Head of the Commonwealth.
The Bahamas
Elizabeth the Second, by the Grace of God, Queen of the Commonwealth of
the Bahamas and of Her other Realms and Territories, Head of the
Commonwealth.
Grenada
Elizabeth the Second, by the Grace of God, Queen of the United Kingdom of
Great Britain and Northern Ireland and ofGrenada and Her other Realms and
Territories, Head of the Commonwealth.
Papua New Guinea
Elizabeth the Second, Queen ofPapua New Guinea and Herother Realms and
Territories, Head of the Commonwealth.
Governors-General
41.14.
In those member countries still owing allegiance to the Crown, the Queen is
represented by a Governor-General. He is charged with many, though not all,
of the functions performed in Britain by The Sovereign personally, such as the
summoning, proroguing and dissolution of Parliament, the giving of the Royal
Assent to Bills and the appointment of Cabinet Ministers and Judges. The
Imperial Conference of 1926 placed it on record 'that the Governor-General in
a Dominion is the representative of the Crown holding in all essential respects
the same position in relation to the administration of public affairs in a
Dominion as is held by His Majesty the King in Great Britain and that he is not
the representative or agent of His Majesty's Government in Great Britain or of
any Department of that Government.'
41.15.
41.16.
385
While ministerial and functional conferences now take place throughout the
Commonwealth on an increasing scale, ranging from gatherings, sometimes in
a United Nations context, of Ministers of Foreign Affairs, Finance, Justice,
Health or Trade to those of Cabinet Secretaries, officials or technicians, the
meetings of Heads of Government have become the most obvious symbol of
continuing Commonwealth cooperation. When such meetings were resumed
in 1944, they took on a more informal character than the pre-war Imperial
Conferences. During the two following decades they were held almost without
question in London under the chairmanship of the British Prime Minister of
the day. Servicing of the meetings remained in the joint hands of the British
Cabinet Office and of the Dominions (later Commonwealth Relations) Office.
Even following the independence of India, Pakistan and Ceylon in 1947-8, the
gatherings remained small and retained something of a family atmosphere.
41.18.
It was not until 1966, shortly after the unilateral declaration of independence
by Rhodesia, that a new precedent was set. In that year not only were two
Heads of Government meetings held; but for the first time one of them took
place outside London - in Nigeria - and was devoted to the single subject of
Rhodesia. While a further conference was convened in London in 1969, the
concept of 'rotation' had by now been tacitly accepted. Thus, Heads of
Government met in Singapore in 1971, at Ottawa in 1973, in Jamaica in 1975
and London in 1977, the year of the Jubilee of Queen Elizabeth 11.
41.1 g.
386
Over a period of some fifty years, organisation within the British Government
had been adapted to meet the changing needs of the Commonwealth. A
separate Department of State had first been established in 1925. Called the
Dominions Office, it was formed from the Dominions Department of the
Colonial Office to handle relations with the Dominions which had effectively
gained independence after the First World War, as well as with Newfoundland
and Southern Rhodesia. On 15 August 1947, the day ofIndependence for India
and Pakistan, the name ofthe Office was changed to Commonwealth Relations
Office, and it assumed responsibilities for United Kingdom relations with
these countries. 7 With the process of independence continuing apace in the
next two decades, most of the territories which had been administered by the
Colonial Office became the responsibility of the Commonwealth Relations
Office. It was decided in 1966 that the remaining responsibilities in this field no
longer justified the maintenance of a separate Colonial Office, which was
accordingly absorbed by the Commonwealth Relations Office, then renamed
Commonwealth Office. 8
41.23.
387
Since 1968 the Secretary of State for Foreign and Commonwealth Affairs has
been responsible for the conduct of relations with other member countries of
the Commonwealth and for the administration of the remaining United
Kingdom dependencies. Within the Foreign and Commonwealth Office there
are departments to advise Ministers on Commonwealth matters and on the
Dependent Territories. Although the conduct of diplomatic business between
Commonwealth governments is carried out in much the same way as that with
foreign countries, Commonwealth High Commissioners and their staffs
traditionally deal direct with a wider range ofgovernment departments, and in
general in a more informal manner, than do their foreign counterparts. 10 Such
dealings across departmental boundaries have grown greatly since the Second
World War, notably in such organisations as the European Communities;
none the less, history, language and habit have given this Commonwealth
practice a special flavour.
Under the Covenant of the League of Nations all the then Dominions except
Newfoundland became original members of the League. In that capacity
they were enti tIed to send separate delegations to the Assembly and were
eligible for election to the non-permanent seats on the Council. Thus Canada
was elected in 1927, the Irish Free State in 1930, Australia in 1933 and
New Zealand in 1936. All members of the Commonwealth (save, at the end of
1977, Nauru and Tonga) have Permanent Representatives at the seat of the
United Nations in New York. Though not a separate member, Southern
Rhodesia was admitted, prior to its unilateral declaration of independence in
1965, to membership of certain international organisations dealing with nonpolitical matters, such as the International Telecommunications Union.
Individual participation by Commonwealth member countries in such
conferences is in itself a token of the true independence of each of them.
388
DiplolDatic representation
4 1 26 .
In accord with its estimate of its needs and the requirements of its national
budget each member government accredits ambassadors or consular representatives to foreign countries. Within the Commonwealth, however, a Head of
Mission is styled 'High Commissioner' rather than 'Ambassador,' and his
office 'High Commission.'
High COlDlDissioners
41.27.
41.28.
Until quite recently, it had not been accepted that a High Commissioner in
London could be the Doyen of the Diplomatic Corps. When, in 1948, High
Commissioners were assimilated fully to the status of ambassador, it was still
considered inappropriate that a subject of The King (which all High
Commissioners then were) should be the Doyen of the diplomatic representatives in his capital, since he was technically not accredited to The Sovereign.
That last inhibition, which never existed at all in other Commonwealth
capitals, lapsed in 1972 when the then High Commissioner for Jamaica in
London, Sir Laurence Lindo, became Doyen of the Diplomatic Corps.
41.29.
Consular functions
389
not a citizen of the United Kingdom and Colonies in that he does not lose his
privileges and immunities because he is a 'national of the receiving state.'
Agents-General
4 1 .3 0 .
Consular functions
41.31.
41.32.
390
outside the capitals of the two latter countries have recently become
Consulates-General, as opposed to Deputy High Commissions or Senior Trade
Commission Offices. They do not, however, carry out any statutory consular
functions, as they are not empowered to do so. In certain other countries ofthe
Commonwealth it remains the practice for British diplomatic offices outside
the capitals to be styled 'Deputy High Commissions.'
41.33.
Some functions which are consular in nature, such as trade, welfare and
immigration, are carried out by representatives whose titles are varied - Trade
Commissioners, Immigration Officers and Assistant Commissioners are among
those used. In the United Kingdom these officers are also given privileges and
immunities on the consular scale under the Commonwealth Countries and
Republic of Ireland (Immunities and Privileges) Order 197 I. The privileges
and immunities accorded in the United Kingdom to the Commonwealth
Secretariat are set out in the Commonwealth Secretariat Act, 1966.
The view formerly held by the United Kingdom Government, and accepted
with isolated exceptions by the then Dominion Governments, was that
agreements between mem bers of the Commonwealth were not properly
registrable with the League of Nations under Article 18 of the League
Covenant. Since the establishment ofthe United Nations further consideration
was given to this question and it was later agreed by all members of the
Commonwealth that agreements concluded since 24 October 1945 should be
registered with the United Nations, saving those which merely amended or
modified agreements concluded before that date, and certain other classes of
agreement not regarded as registrable when concluded between foreign
countries.
For so long as the Crown remained one and indivisible it had been looked to
throughout the Empire, and indeed as recently as 1947, as the 'Fountain of
Justice.' Appeals thus lay by right or by special leave from higher courts
overseas to the Judicial Committee. But once it proved possible, from 1949
onwards, to accommodate republics within the Commonwealth, links with the
Judicial Committee suffered much attrition. In the majority of countries
appeals have terminated. Efforts to establish an alternative worldwide Court,
or a series of regional Commonwealth Courts, have failed. However, a number
of member countries, namely The Bahamas, Barbados, Fiji, The Gambia,
Grenada, Jamaica, Malaysia, Mauritius, New Zealand, Singapore and
Trinidad and Tobago (three of them now republics), together with the
Australian states, still maintain the right of appeal to theJ udicial Committee.
CHAPTER 42
Some regional
organisations
4 2 .1.
The last chapter of the fourth edition of this book was entitled 'Associations of
Western States.' If 'Western' is taken to mean Western Europe and its
American and Canadian allies, or Western Europe on its own, this special
chapter was timely. For a look back from the present day to the first fifteen
years or so immediately after the Second World War shows that period to have
been remarkable for multilateral diplomatic activity leading to the formation
of intergovernmental organisations.
42.2.
42.3.
But in the present chapter it would have been mistaken to confine the study of
regional associations to Europe and the Atlantic. Economic and political
considerations have enhanced the importance of some existing organisations,
while newly independent countries have found regional organisations a help in
preserving and developing their independence. Sections have therefore been
added on the Organisation of American States (OAS), which has existed in
intention if not in fact since the International Union of American Republics
was founded in 1890, the Organisation of African Unity (OAU), established in
1963, and the Association of South-East Asian Nations (ASEAN), established
in 1967.
42.4.
Two very important regional associations have not been subjected to the same
analysis for the reason that they are not wholly parallel in nature to the others.
The first is the organisation generally known as the 'Warsaw Pact,' but more
correctly styled 'Treaty of Friendship, Cooperation and Mutual Assistance,'
signed at Warsaw on 14 May 1955. The text of the Treaty is largely in general
terms, with special reference to Article 51 of the United Nations Charter; the
impact lies in the 'Statement on the Formation of a Joint Command of The
Armed Forces of the Warsaw Treaty States, 14 May 1955.'1 The membership
of the Warsaw Treaty Organisation consists of Bulgaria, Czechoslavakia, the
392
German Democratic Republic, Hungary, Poland, Roumania and the USSR, Albania, an original signatory, having withdrawn.
42.5.
4 2 .6 .
The Warsaw Treaty Organisation differs from the North Atlantic Treaty
Organisation in two important respects: the preponderant power of the Soviet
Union is in the closest proximity to the other members; and, in the case of
Czechoslovakia, the power of the Organisation as a whole has been used
against a member state.
4 2 .7.
4 2 .8.
At the end of the Second World War, Western Europe was faced with two
necessities. The first was that of repairing physical destruction and human
deprivation. The second, already apparent at the time when the United
Nations was being formed, was to take necessary precautions against any
danger developing from divergences of ideas and policies between the Western
Powers and the Soviet Union and its associates. The first was obvious for all to
see. The second showed itself in numerous ways, of which one of the most
conspicuous was the commitment sustained by the Western Powers to the
policy of a united Germany democratically governed, as opposed to the Soviet
policy of keeping Germany divided with one zone under a Communist regime.
The divisions went so deep that, somewhat in advance of much of public
opinion, Western governments had to accept that there would need to be
393
arrangements between them not only for mutual economic help (which could
perhaps be shared with the East), but also for physical defence; and moreover
that this might have to be organised, not simply against a possible revival of
German power, but also against potential dangers from the East both to
military security and to human rights and individual and national freedoms
as understood in the West.
Treaty of Dunkirk
42.10.
The first post-war Western European agreement for mutal defence was the
fifty-year Treaty of Alliance and Mutual Assistance entered into by the United
Kingdom and the French Repu blic at Dunkirk on 4 March 1947. 2 Each
country bound itself to give the other all the military and other support in its
power, should either again become involved in hostilities with Germany. The
Treaty of Dunkirk also provided for consultation on matters affecting the
economic relations ofthe two countries. It did not provide for the establishment
of any formal machinery. It is still valid, although largely superseded by the
more comprehensive agreements signed later.
Signature and provisions. The Brussels Treaty was signed on 17 March 1948
between the United Kingdom, France, Belgium, the Netherlands and
Luxembourg. 3 It is described as a 'Treaty of Economic, Social and Cultural
Collaboration and Collective Self-defence.' The preamble declares that the
Parties resolve 'to reaffirm their faith in fundamental human rights ... to
fortify and preserve the principles of democracy, personal freedom and
political liberty, the constitutional traditions and the rule of law . .. to
strengthen the economic, social and cultural ties by which they are ... united;
... to afford assistance to each other, in accordance with the Charter of the
United Nations, in maintaining international peace and security and in
resisting any policy of aggression.... '
42.12.
42.13.
This Treaty also provided for the coordination of economic activities and the
signature of social and cultural conventions between the Parties (Articles
I-Ill). Finally, it contained an accession clause enabling the Parties, by
394
agreement among themselves, to 'invite any other State to accede to the present
Treaty on conditions to be agreed between them and the State so invited.' (Art.
IX.)
4 2 14.
42.15.
Other organs were set up to deal with the non-military aspects of the Brussels
Treaty. They were the Social Committee, the War Pensions Committee, the
Cultural Committee, the Public Health Committee, the Joint Committee on
the Rehabilitation and Resettlement of the Disabled and the Civil Defence
Conference, with their sub-committees. All these committees met at frequent
intervals and submitted the results oftheir work to the Permanent Commission.
A number of conventions, e.g. multilateral conventions on Social Security,4
Social and Medical Assistance,5 Student Employees, 6 Frontier Workers, 7 were
signed as a result of Brussels Treaty action. The existing network of bilateral
cultural conventions between the five countries (e.g. that of 1948 between the
United Kingdom and France)8 were progressively enlarged in the spirit of
Article III of the Brussels Treaty.
The Brussels Treaty provided a framework for cooperation between the five
Western European Allied Powers. But even at the time of its signature there
was a growing realisation on both sides of the Atlantic that a wider alliance,
combining the strengths of Europe and North America, would be essential. No
one saw this more clearly than the British Foreign Secretary, Ernest Bevin. To
be of real value to Europe, such an alliance would involve for the United States
a permanent commitment far beyond any traditional interpretation of the
historic American phrase 'no entangling alliances. '9 Fortunately for the
prospects of such an ideal becoming real, the United States had at the time not
only a strong Executive in President Harry S. Truman and Secretary of State
(General) George C. Marshall, but, indispensable to success, a united
leadership in the Senate. Early in 1948, Senator Arthur H. Vandenberg from
the Republican side drew up, with the full support of the Executive branch of
Government and of Senator Tom Connally for the Democratic Party, a
resolution embodying what would be for the United States an unprecedented
overseas commitment. 10
4 2 17.
II
April 1948.
395
' ... the idea of a single mutual defence system, including and superseding the Brussels
Treaty, was publicly put forward by Mr St Laurent [Prime Minister of Canada] in the
Canadian House of Commons.' 11
42.18.
Before any study of the content of the Treaty, it is instructive to look at the
events of almost exactly a year from I I April 1948 (opening of preliminary talks
with Senators Vandenberg and Connally) to 4 April 1949 (signature of the
North Atlantic Treaty) as a whole. The negotiations, carried out on a wide
international front, were remarkable both for their efficient organisation and
their well-chosen timing. However urgent the purpose and however high the
level of discussion, there is always the possibility of small slips with grave
consequences. None occurred, and this is a tribute to the calibre of those
engaged in the negotiations. Timing was also felicitous, not simply because of
the shared purposes and anxieties of those involved, but particularly in the
American political context; 1948 was an election year, and the customary
practice in election years is to cut down on policy risks as the election
approaches. Had the momentum been slowed down (e.g. as it would have been
by an attempt to draft a Constitution) and had things then gone wrong for the
Democratic Party in the November election (as they very nearly did) the
impetus could have been significantly lost and the consequences serious.
Timing is, of course, never wholly under the control of governments or
individuals; but politicians and diplomats should never leave timing out of
sight, whether the problem to be negotiated be great or small.
42. I 9.
42.20.
Article I significantly relates the Atlantic Treaty and the future actions of the
Alliance to the purposes and actions of the U nited Nations. Thus, in Article I,
396
'The Parties undertake, as set forth in the Charter of the United Nations, to settle any
international dispute in which they may be involved by peaceful means in such a
manner that international peace and security and justice are not endangered, and to
refrain in their international relations from the threat or use of force in any manner
inconsistent with the purposes of the United Nations.'
42.2 I.
42.22.
Machinery
4 2 2 4.
397
This meant that, to a considerable degree, the history of the North Atlantic
Treaty Organisation is a history of frequent adaptation of structure to meet
changing events and requirements, always in pursuance of and in conformity
with the Treaty.
4 225.
4 2 . 26 .
But in 1950 the Alliance lacked two essentials. First, while there was a great
multiplicity of national armed forces, the edifice had no unified apex, a
situation which would mean weakness and delay in an emergency. (There was
no provision in the Treaty covering this point.) At its Brussels meeting in
December 1950, the Council accepted a recommendation from the Defence
Committee that an integrated European Defence Force be created and that a
Supreme Headquarters be established under the command of an American
officer, and that President Truman be invited to designate General Dwight D.
Eisenhower as Supreme Allied Commander (SACEUR). The President agreed
and General Eisenhower accepted. 16
42.27.
The new body was known as the Council Deputies. It was composed of twelve
Deputies, one representing each of the (at that time) twelve Foreign Ministers,
with advisers and staff as necessary. The Deputies were instructed to meet in
continuous session in London.
4 2 28 .
The Foreign Ministers' Deputies were mainly very senior diplomatic officers.
398
But it will be noted that, particularly after the Council in May 195 I dispensed
with the original Defence, Financial and Economic Committees and
concentrated supreme policy authority in its own hands, each Deputy
represented his Foreign Minister not simply as a departmental Minister but in
the name of the national interest as a whole, including the special interests and
capacities of the Ministers of Defence and Finance. Thus, the Deputies grew
into being not only 'representative' in a conventional, limited sense, but also
the machinery of the government of an important international Alliance. This
is not the same as 'political integration', since each member government
retained its political sovereignty and NATO decisions continued to be taken by
unanimity.
42.30.
Meanwhile, basic work on defence policy done within the Organisation made
it clear that the requirements deemed essential by the Military Committee
called for contributions from member states far greater than the members
considered themselves able to make. A Ministerial Council meeting held in
Ottawa from 20 to 25 September 195 I, was attended by Ministers of Foreign
Affairs, Defence and Finance, with the thought in mind that 'Korea (1950)
might happen here,' and with a conviction that, in the immediate future prices
were likely to rise. The Council appointed a Temporary Council Committee of
Three 21 to review the whole question of requirements versus resources. The
Committee produced many new ideas, notably an application of the principles
of mutual aid and equitable burden sharing. On the basis of the Temporary
Council Committee's report, the Council at its meeting in Lisbon from 20 to 25
February 1952, set future force levels and a future pattern for regular reviews
and economic negotiation.
4 2 .3 I .
399
42.32.
42.33.
It is not possible in this book to follow, even in brief detail, the events and
developments affecting so large and many-sided an organisation as NATO. But
a few landmarks stand out. In May 1956 the Council appointed a Committee to
advise on closer cooperation in non-military matters. It consisted of Dr
Gaetano Martino (Italy), Mr Halvard Lange (Norway) and Mr Lester Pearson
(Canada), each at one time or other Prime Ministerofhis country, who became
known as 'The Three Wise Men.' Working amid the anxieties of 1956, the year
of the failure of the Hungarian uprising and of the Anglo-French enterprise
in Suez, the group laid the greatest emphasis on the necessity ofcooperation at
all times between the members ofan alliance, lest the habit ofcooperation falter
when the need was greatest. In a notable document of 103 paragraphs, they
wrote,
'... events have reinforced the Committee's conviction that the Atlantic Community
can develop greater unity only by working to achieve common policies on matters of
common concern. '23
42 .34.
400
been hoped that he would not insist and there was therefore a brief sense of
shock when action was in the end taken. However, NATO, after a short period
of uncertainty, showed its by now built-in strength by the Council taking note
at its meeting at Brussels on 7 June that a number of the practical problems
consequent on the French decision had been worked out, accepting a warm
invitation from the Belgian Government to make Brussels the Council's
Headquarters and asking for space in Belgium for Military Headquarters. It
then proceeded to consideration of other important technical business.
42.35.
42.36.
As has been evident from the above, NATO was engaged throughout nearly
three decades in a process of structural experiment and adaptation. The main
structure prevailing in 1977 was not far different from that adopted in 1951.
(See 42.28-31.) The principal change had been the formation of a Defence
Planning Committee which was in practice the Council, meeting under the
Defence Planning title and with that function. When in 1966 France remained
in the Alliance but ceased taking part in NATO military discussions, a possibly
serious difficulty was circumvented by the discussion of these items by the
Council, meeting as its own Defence Planning Committee. As such, it became
the organ of coordination and decision for all questions concerning the
integrated defence in which the remaining fourteen members took part, while
from 1966 France did not exercise a right to sit. 25
4 2 .37.
401
4 2 .39.
4 2 -4 1.
In August 1954, however, the French National Assembly after many anxious
delays, finally decided not to accept the EDC Treaty. In consequence it
became necessary to establish new arrangements for the integration of the
Federal Republic of Germany into the Western system of security. At a
Conference held in London from 28 September to 3 October, and attended by
the United Kingdom, the United States and Canada as well as by the six
402
Effect was given to the London decisions at a Conference held in Paris from 20
to 23 October 1954. 28
42.43.
The formation for this purpose of the OEEC owes its origin to the historic
speech made at Harvard University on 5 June 1947 by the United States
Secretary of State, George C. Marshall, in which he referred to the need for
positive action to help Europe towards economic recovery, but stressed the
need for the countries of Europe to reach agreement on the requirements of the
situation before the United States could consider how it could aid a joint
European programme.
42.44.
The Organisation
(l Hurupean
A'conomic (;oo!Jeratioll
403
evident that the Soviet Government would not cooperate in the active role
which the other two governments considered would have to be played by
Europe. Accordingly, the French and United Kingdom Governments invited
all European states (with the temporary exception of Spain) to participate in a
Conference for the drawing up of a European programme. The invitation was
accepted by the majority of European governments but declined by the
Governments of Finland and of those countries under Soviet influence,
including one which had originally accepted.
42.45.
The Conference met in Paris on I 2]uly 1947 and adjourned on I 5]uly, having
entrusted the work to a Committee of European Economic Cooperation
(CEEC) under the chairmanship of Ernest Bevin, the British Secretary. Sir
Oliver Franks 29 was appointed his alternate to chair on his behalf the working
sessions of the Committee. At the end ofSeptember the Committee submitted a
report covering estimates of production, requirements and future plans. On the
basis ofthat report, the President ofthe United States presented to Congress the
outline of a European Recovery Programme which was made law by the
passage of the European Cooperation Act of 1948. The Act provided for
economic aid to Europe during a four-year period ending in 1952, and set up a
United States Economic Cooperation administration to administer this aid.
42.46.
4 2.47.
As part of the preamble to the Convention it is stated that 'the Signatories ofthe
present Final Act who become signatories of the Convention will be deemed to
be the original Members of the Organisation as from the date of the deposit of
their instruments of ratification.' These were Austria, Belgium, Denmark,
France, Greece, Iceland, Ireland, Italy, Luxembourg, Norway, The Netherlands, Portugal, the United Kingdom, Sweden, Switzerland, Turkey, and the
Commanders-in-Chief of the French, United Kingdom and United States
Zones of Germany. 31
42.48.
404
Aims
42.49.
In
Article
11
of the
'The aim of the Organisation shall be the achievement of a sound European economy
through the economic cooperation of its members.'
42.50.
The wording of the general passages ofthe new Convention reflects much more
than do most official documents of this kind the atmosphere in which it was
drafted. Thus from the Preamble:
'The (signatory) Governments ... considering that a strong and prosperous European
economy is essential for the attainment of the purpose of the United Nations, the
preservation of individual liberty and the increase of general well-being. . . .
'... Believing that only by close and lasting cooperation between the Contracting
Parties can the prosperity ofEurope be restored and maintained, and the ravages ofwar
made good....
'Taking note of the generous resolve of the American people expressed in the action
taken to furnish assistance without which the aims set forth above cannot be fully
achieved....
'Have agreed, etc. etc.'
42.51.
In the more specific paragraphs there are passages which are important as
describing the degree of shared effort represented by the future Organisation
for European Economic Cooperation. Article 14 reads in part:
'Unless the Organisation otherwise agrees for special cases, decisions shall be taken by
mutual agreement of all the members.'
These words had two purposes. The word 'decision' emphasised that the
Organisation would not be limited to making 'recommendations.' It was there
to get things done, whether to reach agreement on a system of freer payments
across international exchanges or to ensure delivery at the right places with the
utmost speed, of scarce and vital industrial necessities from railway wagons to
furnace linings. On the other hand, by prescribing that decisions must be
unanimous, the Convention made it clear that these decisions leading to
economic recovery would be arrived at by 'cooperation,' a word much used in
the Convention, not by submergence of national sovereignty nor by majority
voting. In the early, urgent years, this was no serious impediment to action.
General obligations
42.52.
405
42.53.
Rapid and dynamic progress was made, and a report was presented annually to
the governments, including those of the United States and Canada, who had
become associate members of the Organisation in 1950. Perhaps the most
notable feat was the conclusion in 1950 of the European Payments Union.
Under this agreement resources made available under the Marshall Plan were
used to support European currencies in liberating trade and payments from the
tightly controlled bilateral channels in which they had had to operate and
developing an increasingly free-flowing multilateral system.
4 2.54.
The European Recovery Programme ended in June 1952, but the United
States Economic Cooperation Act was succeeded by the Mutual Security Act
of 1952 providing for continued United States economic aid to Europe and
setting up, as the successor body to the Economic Cooperation Administration,
the Mutual Security Agency (restyled, as from August 1953, the Foreign
Operations Administration and from 1955 onward, known as the International
Cooperation Administration).
42.55.
A very full account of the structure and workings of the OEEC is given in the
fourth edition of this work 32 to which the attention of the economic historian is
invited. It is not reproduced here since the OEEC terminated its existence in
1960 to be replaced by a new body.
42.56.
By that year, the main purposes of OEEC had been accomplished. The
financial problems of Europe were no longer localised. In terms of industrial
supplies, scarcity had been succeeded by plenty and the ordinary channels of
trade were operating freely under the rules of GATT.
42.57.
406
42.58.
The Heads of State and Government closed their communique by stating that
they had agreed to call an informal meeting in Paris in the near future to pursue
i~tensive study of these principles. A meeting of Ministers of thirteen countries
and the European Economic Commission followed on 12 and I 3]anuary 1960
and proposed that in April a meeting of senior officials of the twenty member
governments or associate members of the OEEC should meet in Paris:
'to consider the question of appropriate arrangements to achieve the objects stated
above,
and that
'in order to facilitate the work of such a meeting, a group of four persons would be
appointed to prepare a report. .. .'
The proposal received ministerial approval on I 4]anuary, and a few days later
the Governments of the United States, France, the United Kingdom and
Greece were invited to nominate the four persons who styled themselves 'The
Group of Four on European Organisation.'33 The Group reported on 7 April
1960, proposing the setting up of a new body to be called the 'Organisation for
Economic Cooperation and Development'. This new name and the future
foreseen for the Organisation took its work outside the confines of Europe and
North America and its main task was to become an authoritative centre of
research and initiative in economic thought and development on the economic
performance and prospects of the world as a whole.
In the previous two sections consideration has been given to organised efforts by
Western European countries and their North American allies both to establish
a higher level of mu tual defence than ever before in peacetime, including some
degree of integration of armed forces and commands, and to rebuild in fuller
cooperation than before attempted the economic damage inflicted by the
Second World War.
42.60.
407
Benelux
42.61.
After a number of discussions before the Second World War among smaller
European Powers about a possible advance towards customs union, the first
definite step was taken during the war when the Governments in Exile in
London of Belgium, Luxembourg and the Netherlands signed a Convention
affirming their intention to establish a customs union with a common external
tariff. Disruption immediately after the war delayed entry into force which,
however, came on 1 January 1948. Thenceforth the three countries worked
very closely together in all international economic matters. A number of
agreements were confirmed in a more formal and detailed treaty signed on 3
February 1948 entitled 'Traite instituant I'D nion Economique Benelux'. Since
this agreement was signed later than the signature of the Treaty of Rome
(42.74) it is pertinent to quote an authoritative comment:
'La difference principale entre les deux Traites reside dans le rythme et le stade de la
realisation de leurs object ifs. En effet, la Communaute Economique Europeenne
n'atteindra le degre actuel d'integration du Benelux qu'apres une periode de transition
assez longue, tandis que le marche commun du Benelux est deja, dans une large mesure,
une realite. 39
42.62.
There was no immediate sequel in Western Europe along the line of the
Benelux initiative. Defence coordination and economic (including industrial
and financial) recovery were being pursued on a wide front and along lines
leading to NATO and OEEC. But even at the meetings in Paris in 1948 at
which OEEC was founded, there were voices from Benelux and France
indicating a desire for integration as a more speedy and effective road to
recovery, and criticising those who could not agree.
42.63.
Since the advance of the American Recovery Plan through the medium of
OEEC was clearly not to be postponed or obstructed, the way towards greater
(supranational) integration clearly lay elsewhere. It lay through two particular
interrelated industries, coal and steel.
42.64.
408
4 2 6 5.
The European Coal and Steel Community (ECSC) was created under the
Treaty signed on 18 April 1951 and ratified on 25 July 1952. The signatories
(and, therefore, the members of~his Community) in order of signature, were:
the Federal Republic of Germany, Belgium, France, Italy, the Netherlands and
Luxembourg. 41 The Constitution of the Community is described fully in the
fourth edition of this book, and, in view of the greater importance to these
studies of the Treaty of Rome, does not need so long a description here. None
the less, the ECSC Treaty was the first of its kind, and its influence on the
drafting of the Treaty of Rome is apparent and important.
42.66.
The objects of the Coal and Steel Community started with the desire to abolish
Franco-German rivalry in these industries in the interest of economic unity in
Europe. Import and export duties, quantitative restrictions and discriminatory
practices between members of these industries were to be eliminated and a
constant watch was to be kept on the whole process and appropriate decisions
taken.
ECSC institutions
42.67.
From its inception in 1951 to its merger in 1967 with the European Economic
Community and the European Atomic Energy Community, the institutions of
the ECSC were as follows:
A High Authority of 9 members (France and Germany 2 each, the remainder
1 each, the ninth appointed by the 8 so nominated). The members of the
High Authority were the Executive of the Organisation, forbidden either to
consult or to accept instructions from any government or organisation. On
certain subjects, the High Authority was obliged to consult (but without
commitment) a committee of producers, employees, consumers and dealers.
2. The Council ofMinisters, drawn from member governments. Its object was to
reconcile decisions of the High Authority with the general economic policies
of the member countries. The High Authority had to consult the Council
over many issues, and in some cases to obtain its concurrence before acting.
3. The Common Assembly, the parliament of the community, consisting of 78
delegates, chosen annually by national parliaments from their members.
(France, Germany and Italy 18 each, Belgium and the Netherlands 10 each,
and Luxembourg 4.) The Assembly held one ordinary session a year to
debate the Report submitted to it by the High Authority.
4. The Court, the final authority on the interpretation of the Treaty.
I.
4 2. 68 .
However, following the Merger Treaty,42 signed on 8 April 1965, which came
into force on 1 January 1967, the three Communities (Coal and Steel,
Economic and Atomic) share common institutions. These are:
The Commission (in place of the High Authority), which consists of 13
members (2 each from the United Kingdom, France, Germany and Italy,
and 1 each from the rest).
2. The Council (as before).
3. The Assembly, which has 198 members, rising to 410 after direct elections.
I.
409
42 6 9.
It was natural that those hoping for greater unity in Western Europe should
regard the ECSC as a promising step. A further advance was to be expected,
but some of the governments, notably France, were most immediately
concerned with the permanent regulation of the formal relationship between
the other Western European countries and the Federal Republic of Germany.
This was not resolved until October 1954. (See 42.41.) Apart from immediate
political considerations, it might have been unwise to hurry too fast.
42.70.
42.71.
So the six countries conferred and decided that they would go ahead with the
attempt. Negotiations lasting well over a year ended on 25 March 1957 in the
signature of the Treaty of Rome, setting up the European Community and
the European Common Market. 44
42.72.
It will be necessary to return to the structure and functioning of the Treaty. But
a short reference is first needed to the economic diplomacy of the period
immediately preceding and following the signature of the Treaty. It was clear
from the progress in 1956 of the negotiations between the Six that a Customs
Union would emerge. The United Kingdom were quite prepared to compete
in an industrial free trade area, but could not see themselves as part of an
economic unit of which the strict control of agricultural prices would mean for
the British consumer far higher prices than currently paid through free access
to world supplies in a competitive market. In this situation the United
Kingdom launched a plan for a European Industrial Free Trade Area
with which the Common Market could be closely linked or of which it
could be a member. Despite immense activity both at official level, conducted
by technical experts and diplomatic representatives, and at ministerial
meetings, no answer could be found, and at an unhappy meeting in Paris in
November 1958 the project collapsed. The British together with six other
countries then formed in 1959 the European Free Trade Association (EFTA)45
which generated a useful volume of trade over the succeeding years.
42.73.
By 1960, with the work of OEEC accomplished, and despite the valuable
accomplishments of EFTA, it had become clear that the centre of economic
power in Western Europe would thenceforth be the European Economic
Community. Thinking in the United Kingdom about the relationship with the
Communities began to change. In 1962 and again in 1967 the United Kingdom
410
42.74.
The Treaty of Rome, signed on 25 March 1957, and entering into force on 1
January 1958, contains 248 Articles and, if the Amendments to Annexes up to
1960 are counted, includes approximately twice as much again in additional
content. In this, it is totally unlike the two main agreements involving Western
Europe considered so far, the North Atlantic Treaty and the Convention for
European Economic Cooperation. Both these agreements were relatively short
(the former seventeen Articles and the latter twenty). These instruments were
concluded rapidly; they stated great principles, set out some important general
purposes and instructed the organisation set up under the agreements to work
out ways and means of carrying them out. By contrast, the Treaty of Rome,
though it sprang from emergency, set out its principles, radical as they were, for
the indefinite future, and, not content with that, it elaborated very precise
methods by which those principles were to become reality.
4 2 .75.
The Preamble, a notable document throughout, starts with the heads ofthe six
states declaring themselves
'Determined to establish the foundations of an ever closer union among the European
peop Ies.... '46
This is, as it were, the political charter of the Community. The use of the word
'union' in this manner is something more than a hope, while not imposing a
degree of precision which might arouse mistrust at the start. Nor is it valid to
object to the use of the word 'peoples' in a Treaty. The United Nations had
already used it in the Charter in a conscious effort to express the idea that
international engagements concern not only governments who make them but
also peoples on whose authority they do so.
42.76.
42 .77.
4I
as of all other measures having equivalent effect,' (b) the establishment ofa
common customs tariff and of a common commercial policy towards third
countries, (c) the abolition, as between Member States, of obstacles to
freedom of movement for persons, services and capital, (cl) the
establishment of a common policy in the sphere of agriculture....'
Having made these and other statements of objective, the Treaty by no means
stops there. It proceeds to set out (Art. 8) a timetable under which the processes
will be completed and an arbitration procedure for use in case of deadlocks; in
paragraph 6 of that Article, it says sharply 'nothing in paragraphs I -5 shall
cause the transitional period to last more than 15 years after this Treaty comes
into force.' Nothing did.
42 .7 8 .
42.79.
Paragraphs 42.66-8, describing the structure of the European Coal and Steel
Community show that it was not something worked out with the sole purpose of
enabling an international governmental organisation to manage a large
international coal and steel industry. Much of the thinking behind it reflected a
general European approach to a more integrated management of European
industry and economic affairs generally. (The same feature is reflected in the
European Atomic Energy Community Treaty, concluded at the same time as
the Rome Treaty.) Inherent in both are a consciousness of the possibilities of
strain between the ideals of the 'philosopher kings,' the thinkers and
administrators, and the physical pressures represented by the Ministerial
Council.
42.80.
412
42.8 I.
Belgium
France
Germany
Italy
Luxembourg
Netherlands
Belgium
Denmark
France
Germany
Ireland
Italy
Luxembourg
Netherlands
(Norway
United Kingdom
1976
14
As revised in
preparation for
direct elections
24
10
16
36
36
81
81
10
15
36
81
6
14
25
10)48
36
81
The principal activity of the Assembly falls under Article 143: 'The Assembly
shall discuss in open session the annual general report submitted to it by the
Commission.' Article 144 lays down that' if a motion of censure is carried by a
two-thirds majority of the members of the Assembly, the Commission shall
collectively resign their office.'
42.82.
Article 146 explains that each member government shall delegate to the
Council one of its members as its representative, and that the office ofPresident
shall be held for six months by each member in alphabetical order.
4 2 8 3.
4
4
1977
5
3
10
10
10
3)48
10
f2.84.
413
The Council can also request the Commission for studies, and determines,
by qualified majority, the salaries, allowances and pensions of the President
and Members of the Commission and the President and most senior
officials of the Court.
42.85.
42.86.
Further paragraphs of Article 157 and Article 158 prescribe various rules and
obligations. Article 158 lays down that:
'The members of the Commission shall be appointed by common accord between the
Governments of Member States.'
42.87.
Under Article 155, the Commission has the general obligation 'to see that the
provisions of this Treaty and the measures pursuant to it taken by the
institutions are carried out,' and the Commission is to 'exercise the powers
conferred on it by the Council to ensure enforcement of the rules laid down by
the latter.' Two more obligations are more precise:
- 'formulate recommendations or give opinions on matters which are dealt with in this
Treaty, if it expressly so provides or if the Commission considers it necessary;'
- 'have its own power of decision and take part in the shaping ofmeasures taken by the
Council and by the Assembly in the manner provided for in the Treaty.'
Presidency
42.88.
The Council and the Commission both have Presidents. The Council is the
4I 4
body to which 'each Government shall delegate ... one of its members.' (Art.
146.) The Article continues:
'The Office of President shall be held for a term of six months by each member of the
Council in rotation according to the (French) alphabetical order ofthe Member States. '
42.89.
42.9 I.
However, it is the President of the Council who presides over the body
possessing the greater weight of authority in the Community, and in this way is
rightly considered, although he is not so called, the President of the
Community. He has to combine this position with his many time-consuming
national duties as a Minister and cannot be expected to absorb community
business in anything like the detail required and acquired by the President of
the Commission. For this reason, over and above any support he may receive
from his national officials and advisers, special arrangements have to be made
by the Community to provide him with a staff to assist him in preparation for
and execution of any business during his tenure of office. Such special support
has developed into a new institution entitled the 'Presidency.' This group not
only organises programmes and movements, a duty which entails much
commuting from Brussels to the President's own capital, but inevitably finds
itself involved in much political business such as priorities and the handling of
major matters between Council meetings.
Sequels and reflections
42.92.
4 15
'The conditions of admission and the adjustments of this Treaty necessitated thereby
shall be the subject of an agreement between the Member States and the applicant
State. That agreement shall be submitted for ratification by all the contracting States in
accordance with their respective constitutional rules,'
The two approaches made by the United Kingdom in the 1960s had failed
under the unanimity rule. The attitudes of a number of non-member states
continued to grow closer to those ofthe Community and new approaches in the
early 1970S led, after prolonged negotiations, to the signature on 25 January
1972 of a Treaty providing for the accession to the European Economic
Community and the European Atomic Energy Community of Denmark,
Ireland, Norway and the United Kingdom. 49
4 2 .93.
42.94.
A somewhat unusual sequel to the Accession Treaty was the result of a change
of government in the United Kingdom in 1974. The incoming Labour
Government requested a renegotiation of the terms agreed by its Conservative
predecessor. The other members ofthe Community were not best pleased at the
necessity for renegotiating a Treaty so recently concluded. But a difficult
negotiation was completed successfully, though even then the matter was not
finally settled until approval of the new terms had been confirmed by a
referendum of the British people.
42 .95.
42.96.
416
42 .97.
In February 1975 the President of the EEC accepted an invitation from the
Council for Mutual Economic Assistance (comprising the USSR, the countries
of the Eastern European bloc, Mongolia and Cuba) to visit Moscow for
preliminary talks with a view to drawing up an agreement between the two
organisations. InJanuary 1976 the commissioner responsible for the external
relations of the EEC visited Romania to continue these talks, and urged
individual members of the CMEA to negotiate bilateral agreements with the
EEC. In September 1975 diplomatic relations were established between the
EEC and the People's Republic of China.
42.98.
The EEC exercises the right oflegation both passively, by receiving diplomatic
missions from non-members, and actively, by maintaining diplomatic
missions in certain non-member countries and international organisations
outside Community territory. In 1952 the United Kingdom was the first of
the non-member states to accredit a permanent diplomatic mission to the
High Authority of the European Coal and Steel Community, and in 1956
received the diplomatic mission accredited by the High Authority to the
British Government. Such accreditation requires the procedure of Agrement.
(In contrast to the foregoing, permanent missions to the United Nations from
non-member states have only observer status.) Member states of the EEC
all maintain resident missions in Brussels. Given the nature of much Community work, most missions maintain on their regular staff more specialists
than diplomats, although the head of the mission is normally a senior diplomatic officer.
4 2 .99.
There can be no doubt that the European Community is, from the points of
view of both political and diplomatic practice, undertaking a challenging
experiment. It is engaged in a day-to-day exploration of the ground between
cooperation and union. As such, it can hardly stand still. It cannot escape its
various risks, - the risk, for instance, that a further (no doubt gratifying)
increase in membership may make decisions by consensus more difficult to
achieve. It can also wear a confusing aspect because, at least outside the
organisation, there is sometimes, on a particular point, uncertainty where the
last word lies, - the Council or the Commission, or, sometimes, neither. But
behind the daily work lie forces oflogic and history. These have imposed on the
Community a task of coordination far transcending that of the independent
member governments, concerned as they must be in the first place with their
own national policies and performance.
The Statute of the Council of Europe was signed in London on 5 May 1949.
The signatories are: Austria, Belgium, Cyprus, Denmark, France, Federal
Republic of Germany, Greece, Iceland, The Irish Republic, Italy,
Luxembourg, Malta, Netherlands, Norway, Portugal, Sweden, Switzerland, Turkey and the United Kingdom. * (*Original signatories.)
42.101.
It is of interest that the date of signature wasjust over a month later than that
of the North Atlantic Treaty and just under three weeks later than that of the
Convention for European Economic Cooperation. In pure logic, and given the
advocacy by an influential body of opinion in Europe of the setting up of a
417
Council of Europe with real power, the order of dates might well have been
reversed. But the urgencies of defence and of economic recovery and doubts
and differences about the degree of 'European Union,' even among supporters
of the European idea, made such an order of events impossible. The result was
that, when the Council of Europe Statute came to be signed, it was already
clear that although the Council was a body ofparliamentarians, the realities of
power would reside elsewhere. Hence the comment by M. Guy Mollet 52
'The Council of Europe represents one of the principal forces working for unity in
contemporary Europe. Though its achievements are less than we had hoped in the first
flush of enthusiasm in 1949, they are nevertheless considerable, particularly when
viewed in the light of history; they represent a new conception of international cooperation whose influence is only beginning to be felt.'
The third paragraph of the Preamble to the Statute sets out the following
principle:
'Reaffirming their devotion to the spiritual and moral values which are the common
heritage of their peoples and the true source of individual freedom, political liberty and
the rule of law, principles which form the basis of all genuine democracy... .'
(Ch. I, Art. I.) The aim of the Council of Europe, as set out in Article 1 of the
Statute, is 'to achieve a greater unity between its members for the purposes of
safeguarding and realising the ideals and principles which are their common
heritage and facilitating their economic and social progress.' This aim 'shall be
pursued through the organs of the Council by discussion of questions of
common concern and by agreements and common action in economic and
social, cultural, scientific, legal and administrative matters and in the
maintenance and further realisation of human rights and fundamental
freedoms.' Matters relating to national defence are specifically excluded from
the Council's scope. Participation in the Council 'shall not affect the
collaboration of its Members in the work of the United Nations and of other
international organisations or unions to which they are parties.'
42.104.
Membership. (Ch. 11, Arts. 2-9.) Every member of the Council 'must accept the
principles of the rule of law and of the enjoyment by all persons within its
jurisdiction of human rights and fundamental freedoms, and collaborate
sincerely and effectively in the realisation of the aim of the Council. ... '
Membership is open under Article 4 to any European state 'which is deemed to
be able and willing to fulfil' the preceding provisions and which is invited to
accede by the Committee of Ministers.
42.105.
Structure. (Ch. Ill, Arts. 10-12.) The Council consists of the Committee of
Ministers and the Consultative Assembly, served by the Secretariat. There is
also the Joint Committee, the organ of liaison between the Assembly and the
Ministers. The permanent seat of the Council is at Strasbourg.
4I 8
42 106.
The Committee ofMinisters (ch. IV, Arts. 13-2 I ) is the intergovernmental organ of
the Council. Its members are the Foreign Ministers ofmember states, who can,
if necessary, be represented by an alternate, preferably ofministerial rank. The
Committee deals with recommendations made by the Consultative Assembly,
any other matters of general concern which it decides to place on the agenda,
and with administrative and financial questions affecting the Council. It is the
only organ of the Council empowered to take decisions. These may take the
form of recommendations to member governments. The practice has been
usual for decisions to be taken unanimously, although the Statute provides
that certain decisions, including membership invitations, require a two-thirds
majority and, in some cases, lesser majorities. Meetings of the Committee are
held two to three times a year. The preliminary work is undertaken by a group
of officials known as the Ministers' Deputies who also meet between sessions to
discuss current matters. The Deputies are authorised to take decisions on behalf
of the Committee of Ministers on all questions other than those involving
important issues of policy.
42.107.
42 I 08.
Consultative Assembly53 (Ch. VI, Arts. 22-35), which is the' deliberative organ' of
the Council, is composed of I 57 representatives elected by national parliaments
or appointed in such manner as the parliaments may decide. The number of
seats allotted to each member state in the Assembly is governed by the need to
keep the size of the Assembly to reasonable proportions and at the same time to
ensure that the smaller states are adequately represented.
42 . 109.
The Assembly holds one ordinary session each year, and there is a provision for
the calling of extraordinary sessions. In furtherance of close relations between
the two bodies, the Assembly holds an annual meeting with the European
Parliament of the Communities on a subject of topical interest. The President
and the six Vice-Presidents of the Assembly form the Bureau which directs the
Assembly's work. The Assembly's views may be incorporated in resolutions or
recommendations. The latter, which may propose specific action by member
governments, come before the Committee of Ministers for consideration.
Major decisions require a two-thirds majority.
42 110 .
419
I.
Activities. For the reasons explained in 42.101, it was from the beginning not
easy to be sure what business the Council of Europe should undertake which
would ensure a substantial function in Europe rather than high-level
discussion. Indeed the first two years of its existence were largely occupied in
deliberations about federation and the possibility oftransforming the Assembly
into a European Parliament and the Council as a whole into a European
Political Authority. It became clear that whereas certain member governments
wished to create forms of association on federal or confederal lines, other
member governments were, for a variety of reasons, not willing to do this.
42. I 12.
Over the years, the most valuable functions of the Council divided themselves
into three distinct sections:
I. The proposal and submission to Government of conventions;
2. the work done in collaboration with Specialised Agencies, particularly the
International Labour Organisation, culminating in the Social Charter; and
3. the 'tidying up' (harl'1onisation) of items oflegislation or administration in
individual European countries which, while identical in general purpose,
may differ in detail and can be more usefully discussed in conference than
bilaterally.
42.113.
Since the conclusion of this first Convention, over ninety further Conventions
on widely varied subjects, social, professional, economic and cultural have
passed successfully through the Council of Europe.
42. I 15.
The main activities and agreements on social policy are the European Social
Charter (signed 1964), the European Code ofSocial Security (signed 1968) and
the European Convention on Social Security. The Charter seeks to improve
social and economic rights of individuals generally, the Code to establish
acceptable standards of social benefits and the European Convention on Social
Security to solve social security problems raised by the movement ofemployees,
tourists, etc. across national frontiers. By 1976, the Charter had been accepted
420
by eleven countries and the Code by nine; but the Convention, which came
into force in March 1977, has not as yet been signed by the United Kingdom.
42.116.
4 2 .117.
It is clear from this brief analysis that the Council of Europe has found itself a
purpose and method by which it can handle matters not covered by any other
European organisation. Much of it, while not attracting immediate public
attention, has long-term value. It is bound at times to involve the European
Communities, with whose activities it may from time to time overlap, and with
whom its future technical and political relationships will be both delicate and
very important.
42.1 19.
A Congress of American states, the first attempt of its kind, was convened by
Simon Bolivar 56 at Panama in 1826. Common to all the peoples of the new
states was the determination to enjoy independence in their own way, to resist
intervention from abroad and to respect each other's freedom ofdecision. None
of this in itselfmade unified organisation easy; and further formidable obstacles
were the immense size ofthe American continent, its vastly differing climates, a
population of varied racial origins, languages and social customs, a land of
sparse communications broken up by jungle, mountain, river and desert,
where stretches of uncertainly defined frontiers still lead to disputes, and
finally, the extreme inequality of economic resources. The imbalance between
the abundantly realised capacity and wealth of the United States and the
relative weakness, however great their potential resources, of her twenty Latin
American neighbours has led inevitably to a divergence in the motivation of
national policies. Add to this the differences of culture and temperament
between the north with its Anglo-Saxon base in language and institutions, and
the heirs of the Spanish and Portuguese civilisations in Latin America, and it
becomes obvious that a true Pan-American harmony must be hard of
achievement. Whereas the United States has aimed steadily to preserve the
421
security of the continent and to promote the free enterprise of her people, the
Latin American countries have been concerned less with their security (which
they have not felt, at least since the latter part of the last century, to be
threatened by the rest of the world) than with non-intervention in their
domestic affairs, not merely by European Powers but also by their northern
neighbour. What they have seen as a tendency on the part of the United States
to speak for all Americans has made them all the more jealous to preserve their
own freedom of action. Thus non-intervention has come to be described as the
cornerstone of the inter-American system. But being a negative principle, its
operation has been generally unfavourable to international organisation.
42 120.
42 122 .
It was natural that in the world struggle the United States should put the
defence and security of themselves and their allies, as well as their own
economic strength as belligerents, ahead of any other considerations, and
should indeed look to their American neighbours for all the assistance they
could give. This was less than welcome to Latin Americans who had come to
attach greater importance to their own social and economic advancement than
to the necessities of defence. Relations were not unnaturally strained by the
maintenance of military bases in Latin American territories, by demands for
the eradication of Axis agents, by insistence on the coordinated use of natural
resources for wartime purposes and, furthermore, for the severance ofrelations
with the Axis Powers. And when the war was over and price controls were lifted
in the United States, the Latin Americans found that they were having to pay
more for United States goods, while the value oftheir own exports had fallen in
422
42 . 123.
42 . I 24.
42 3
42.125.
This instrument had the character of a regional treaty within the framework of
Article 51 of the U nited Nations Charter. It provided for collective defence in
the face of armed attack either by an American state or by a state outside the
Western hemisphere, and also, though not explicitly, for regional action in the
event of any other act of aggression, as envisaged in Chapter VIII (Arts. 52-4) of
the Charter. The measures of self-defence to be used would be decided by the
'Organ of Consultation of the Inter-American system,' which consisted of the
Ministers of Foreign Affairs of the American republics, though provisional
action could be taken by the Governing Board of the Pan-American Union
(later transformed into the Permanent Council of the OAS) whose
responsibility it would in any case be to convene the 'Organ of Consultation.'
The signatories agreed immediately to furnish the UN Security Council with
'complete information concerning the activities undertaken or in contemplation in the exercise of the right of self-defense or for the purpose of
maintaining inter-American peace and security.' Senator Vandenberg, a
member of the United States delegation at the San Francisco Conference,
described the Rio Treaty as 'a supplement to the United Nations and part of its
machinery.' The United States Government invoked it in the overthrow in
1954 of the Arbenz regime in Guatemala, and also in their intervention
(supported by a token inter-American peace force) in the Dominican Republic
in 1964. The Rio Treaty was revised by a Protocol ofAmendment signed at San
Jose de Costa Rica in July 1975 and generally known as the SanJose Protocol.
Under this amendment the detailed definitions of aggression were enlarged by
a clause enabling the Organ of Consultation to 'determine that other specific
cases ... equivalent in nature and seriousness ... constitute aggression.' The
sanctions proposed in Article 8 of the original Treaty for use against an
aggressor and requiring for their adoption a two-thirds majority in the Organ
of Consultation could be rescinded by a simple majority. This meant in effect
that members of the OAS were thenceforth free to normalise their relations
with Cuba. The resolution indeed regularised, ex post facto, the unilateral
actions of several parties to the Rio Treaty, such as Peru, Argentina, Panama,
Venezuela and Colombia, in resuming direct relations with Cuba. Furthermore, contracting states were not (as in 1947) obliged under the new
amendment to come to the assistance of a state which was not a party to the
Treaty (i.e. Bahamas, Barbados, Canada, Grenada, Guyana andJamaica). On
the other hand, if any of these states were victims of aggression, or of a conflict
that might endanger the peace of the hemisphere, the Organ of Consultation
was to meet immediately to agree on measures for the common defence of the
hemisphere.
424
The Charter
The charter of the OAS needs only a brief summary here since, apart from its
revision in 1970, when a General Assembly was introduced as the 'Supreme
Organ' to supersede the Inter-American Conferences and a General
Secretariat took the place of the PAU, it is subject to plans, at present (1977) in
preparation, for a thorough reform in order to simplify it and to make it more
relevant to the concerns of member countries.
42 128.
42 1 30 .
Chapter 3 dealt with the fundamental rights and duties of states. Article 12,
involving the question of diplomatic intervention in the interest of a country's
42 5
nationals abroad, aroused some controversy and was finally modified to read:
'The jurisdiction of States within the limits of their national territory is exercised
equally over all the inhabitants, whether nationals or aliens.'
42. I 3 I.
42. 132.
2.
3.
4.
5.
6.
7.
8.
g.
10.
42 . I 33.
426
tration, but attracted numerous reservations, the sum of which was to hamper
the application of the compulsory arbitration and jurisdiction of the
International Court of Justice and to rob the Treaty of its effectiveness in
ensuring the peaceful settlement of international disputes.
42.134.
It will be seen from the foregoing that the OAS is well designed to provide a
vehicle for Inter-American communication at the political and economic
levels; and if the more optimistic forecasts of its founders have not been fulfilled,
this is because more was being asked of it than in the circumstances it could
reasonably be expected to perform.
4 2 1 35.
42.136.
From the point of view of the Latin American states, on the other hand, these
same episodes could be viewed as examples ofhow in the framework ofthe OAS
it was possible to exert a restraining influence on the United States. In fact the
Latin Americans have always shown reluctance to allow the OAS to be
involved in military commitments of any kind. They see its virtue as a peacekeeping instrument; and as such it has proved its usefulness in (to name a few
instances only) the investigation of the Costa Rica-Nicaragua dispute in 1955;
the mutual recriminations between Honduras and Nicaragua in 1957 and
1959; successive crises in the Caribbean arising from accusations laid against
Cuba by the Dominican Republic and Haiti of invasion attempts mounted
against them from Cuban territory; complaints by Venezuela ofthe violation of
427
An important aspect of the usefulness of the OAS to the Latin American states
is the opening it has given them for pursuing their own objectives in their own
way. 59 The Inter-American Economic and Social Council has encountered
extreme difficulty in the attempt to reconcile United States and Latin
American policies with regard, for instance, to industrial products and raw
materials, and a solution has been sought in cooperation with the Economic
Commission for Latin America in a move towards establishing a multilateral
Latin American regional market. The Charter of OAS is flexible enough to
admit to membership new entities composed ofregional groupings ofcountries
within the area, provided they ratify the necessary agreements. However, the
newest of such experimental groupings, the Latin American Economic System
(SELA in Spanish) with headquarters at Caracas, is outside the OAS. It
comprises the twenty Latin American states, including Cuba, and five
Caribbean, including Guyana. The United States is, in accordance with the
title, excluded from membership. It remains to be seen how successful SELA
will be in stimulating regional economic cooperation on lines independent of
the hitherto existing framework. But the OAS is conspicuously a useful forum
for the discussion of technical issues, as a result ofwhich bilateral arrangements
can be made either within the Latin American region, or with the United
States, or again with countries or organisations outside the hemisphere. The
inter-American Specialised Organisations may perform the functions of other
international agencies without losing their status as integral parts of the OAS.
In this way a more realistic appreciation can be achieved of Latin America's
relation, as a developing area, to the world as a whole.
42.138.
Barbados (1968);
Jamaica (1969);
428
Israel, Italy, Japan, the Netherlands and Spain. Guyana, although a member
of the Latin American Group at the United Nations, is excluded from
membership of the OAS under the terms ofthe 1964 Act ofWashington, which
disqualifies any country against which an OAS member may have a territorial
claim. Residual colonial disputes concerning the Falkland Islands and Belize
have been an obstacle to any close relationship between the OAS and Britain.
British application for Permanent Observer status at the OAS was rejected in
1973 and 1974
42.140.
42.142.
Except for the overrunning of the North in the eighth century by the Moslems,
conquest came to Africa late. It came from many sources, principally the
Netherlands, Britain, France and Port ugal, but also from others, and there was
no development parallel to that in the Americas, where the original British and
other settlers in the United States converted themselves through the Monroe
Doctrine into the guardians of a continent against outside interference.
European power in Africa was such that it even survived two world wars in
which some European countries which had colonies in Africa fought on
opposite sides without causing the colonial structure in Africa to collapse. A
prerequisite for agreed African unity would have to be African independence.
42.143.
Some pressures for independence existed before the Second World War historic American disapproval of colonies, contact of African students in
Europe and the United States with libertarian doctrines, teaching and
practice, followed after the Second World War by the many invitations
extended by the Soviet Government to African students to study in Moscow.
But perhaps the most telling influence on African hopes was the success of the
429
430
42. I 48.
4 2 . 149.
Section 2 of the Article sets out the particular subjects in which the member
states are 'especially' to coordinate and harmonise their policies. (For text see
4 2 . I 55.)
42. I 50.
While the Preamble has less legal force than the Articles, there are points in it
worth special mention. It speaks ofthe 'inalienable right ofall people to control
their own destiny,' an evident reference to the past. Another such reference is
the phrase:
'Conscious of the fact that freedom, equality, justice and dignity are essential objectives
for the achievement of the legitimate aspirations of the African peoples.'
It is also of note that, while 'to eradicate all forms of colonialism from Africa' is
in the Charter (Art. 11 (d)), the phrase 'to fight against neo-colonialism in all its
forms' is in the Preamble. This is wisdom, since while the word 'colonialism,' if
open to discussion in detail, is generally accepted, the expression 'neocolonialism' would be greatly open to question ifit were to become subjected to
juridical scrutiny and definition.
Membership
42. I 5 I.
43 I
42. I 53.
It was not therefore surprising, even if it was unusual, that Article VIII, the
Assembly of Heads of State and Government, should have read:
'The Assembly of Heads of State and Government shall be the supreme organ of the
Organisation. It shall, subject to the provisions of this Charter, discuss matters of
common concern to Africa with a view to coordinating and harmonising the general
policy of the Organisation. It may in addition review the structure, functions and acts of
all the organs and any specialised agencies which may be created in accordance with the
present Charter.'
This is far from the kind of Assembly which is mainly an advising or reviewing
body.
42. I 54.
Each member has one vote and, except on procedural matters, 'All Resolutions
shall be determined by a two-thirds majority of the Members of the
Organisation.' (Art. X.) The Assembly has, under Article XXVII, the task of
deciding by a vote of two-thirds of the Assembly 'any question that may arise
concerning the interpretation of this Charter.'
The Council
42. I 55.
432
'To these ends [referring to Article 11 section I] the Member States shall coordinate and
harmonise their general policies especially in the following fields;
(a) political and diplomatic cooperation;
(b) economic cooperation, including transport and communications;
(e) educational and cultural cooperation;
(d) health, sanitation, and nutritional cooperation;
(e) scientific and technical cooperation: and
if) cooperation for defence and security.'
42.156.
Administration
42.157.
Articles XVI-XVIII entitled 'General Secretariat' provide for an 'Administrative Secretary-General' and staff, enjoying the normal privileges and
restrictions. The term 'administrative' does not appear to be in popular use,
but simply indicates the normal difference of status between principals or
delegates and staff
Mediation, etc.
42.158.
42.159.
Among the remaining clauses there is an 'adhesion and accession clause' (Art.
XXVIII) which reads in part:
'Any independent sovereign African State may at any time notify the Administrative
Secretary-General of its intention to adhere or accede to this Charter.'
This would appear to qualify the apparent au tomatic working ofArticles I and
IV. It must be assumed that South Africa would be rejected under this head.
Unlike the United Nations, the OAU has also a clause providing for 'Cessation
of Membership.'
4 2 160.
433
Later Events
4 2 16 1.
The Organisation of African Unity had set itself a most ambitious task of both
policy and administration. The administrative problems are obvious, the sheer
difficulty of adequate communication, interpretation and consultation
between nearly fifty nations inhabiting an enormous continent and its adjacent
islands. The policy task was governed by two sets of tensions, those indigenous
to Africa itself and those resulting from past and present encounters between
Africa and the outside world. Some contained elements of both.
42.162.
Confronted by these tensions, the OAU applied both conciliation and pressure.
An important first step in conciliation was the acceptance by the Organisation
in 1964 of a Protocol under which member states would accept the boundaries
set up in the colonial period. The acceptance was not in fact complete. War
broke out between Somalia and Ethiopia in 1977 over the Ogaden area; Libya
has frontier claims against Chad. None the less, the continued validity of the
Protocol and the conciliation activities of the new Standing Committee on
Disputes (42.158) remove much possible danger.
42 16 3.
42.164.
An example ofpressure exerted by the OAU and affecting both Africa itselfand
the outside world was the formation in 1963 at Dar es Salaam in Tanzania of
the Coordinating Committee for Liberation Movements in Africa to provide
financial and military aid to nationalist movements in dependent countries.
Apart from its practical activities, the Committee issued at its twenty-first
session, held in Accra, Ghana, in 1973, a declaration affirming that the
liberation of territories under 'foreign domination' could only be achieved by
armed struggle.
42 165.
To pressures such as these, operating within the continent, there can be added
one operating with some effect outside. There are (1977) no less than forty-nine
member states of the OAU, all members of the United Nations. Such a group
constitutes almost exactly one-third of the total United Nations membership.
Apart from the mathematical effect on voting in the Assembly, a voting bloc of
this magnitude cannot fail to affect the general atmosphere there and the votes,
in Committee meetings in which African members may take a particular
interest. These are changes which cannot be ignored despite the limitations on
the Assembly's power.
4 2 . 166 .
As a result of the lessons of the last thirty years, the concept of uni ty among the
peoples of Africa has grown at great speed, measured against the scale ofworld
history. How rapidly this unity can be translated into yet further practice by so
large a number of newly independent states will depend partly on active
understanding of Africa's problems by the developed world, and partly on the
skill shown in resolving outstanding differences, in particular those which, if
they persist or recur, could inhibit urgently needed economic growth.
434
The reasons for the formation ofASEAN are a complete contrast to those which
lay behind the founding of the Organisation of African States. Whereas in
Africa there was a clear political objective to bring independence to all African
countries that had not yet achieved it, and to remove racial discrimination
from the African continent, the position in Asia in the mid- 1960s was much
more complex. First there were a number of states either at war or at least in
sharp conflict with each other, notably the two Vietnams and the two Koreas.
There was also the confrontation between Malaysia, supported by the United
Kingdom, and Indonesia. In addition, the activities of Communist dissidents
were a continuing problem for countries such as Thailand and the Philippines,
and even to some extent Malaysia (although the Emergency had officially
ended in 1960). These countries therefore sought the reassurance of continued
links with the West. Thailand and the Philippines were members of SEATO:
Malaysia and Singapore had defence ties with Britain. At the same time they
were also a prey to the fear that too much reliance on the West would only serve
to attract increased hostility from the Communist world. They therefore felt
the need to group together in what was seen as the middle ground between the
Communist and non-Communist worlds.
42.168.
When the United States, from acting as adviser to the South Vietnamese
Government and armed forces decided early in 1965 to become more directly
involved by sending regular units in support ofSouth Vietnam the desire ofthe
South-East Asian non-Communist states to stay out of trouble was further
emphasised, despite the degree of active support which both Thailand and the
Philippines gave to the American war effort in Vietnam.
42.169.
435
of that year an attempted coup by left-wing groups, including the leaders of the
Communist Party, was thwarted by the Army. President Sukarno, whose
attitude to the coup had been equivocal, subsequently fell from power and was
succeeded by a military regime under the leadership of General Suharto. The
new government was anti-Communist in sentiment and sought improvement
of relations with non-Communist countries, and the cessation of confrontation
with Malaysia and Britain. Indonesia thus became one of the 'middle'
countries of the area whose location, size, population and resources made its
membership essential if any effective South-East Asian Organisation independent of outside alliances were to be formed.
42.170.
The second important development was that, between the end of I 965 and the
beginning of 1967, a number of efforts to find a solution for hostilities in
Vietnam failed, and thus any hope that the area might settle down in the
atmosphere of a truce and render an independent South-East Asian political
grouping unnecessary collapsed. This tended to accelerate the feeling among
the non-Communist countries that closer cooperation would benefit their
interests.
42.171.
The first attempt at a regional grouping dates from 1961 when the Association
of South-East Asia (ASA) was formed by Malaya, Thailand and the Philippines.
Two years later MAPHILINDO was formed by Malaya, the Philippines and
Indonesia. Neither of these organisations was effective, largely owing to
disputes between the members over the formation of Malaysia in 1963.
Eventually, with Confrontation over, the way was clear for regional
cooperation between all these states and on 8 August 1967 a meeting ofpolitical
representatives of Indonesia, Malaysia, the Philippines, Singapore 64 and
Thailand issued in Bangkok an announcement under the title 'ASEAN
Declaration.' This document, after a statement of motives and attitudes,
proceeded to state that the above-mentioned political leaders:
'DO HEREBY DECLARE:
FIRST, the establishment of an Association for Regional Cooperation among the
countries ofSouth-East Asia to be known as the Association ofSouth-East Asian Nations
(ASEAN).
SECOND, that the aims and purposes of the Association shall be:
I. To accelerate the economic growth, social progress and cultural development in the
region through joint endeavours in the spirit of equality and partnership in order to
strengthen the foundation for a prosperous and peaceful community of South-East
Asian nations;
2. To promote regional peace and stability through abiding respect for justice and the
rule of law in the relationship among countries of the region and adherence to the
principles of the United Nations Charter;
3. To promote active collaboration and mutual assistance on matters of common
interest in the economic, social, cultural, technical, scientific and administrative
fields;
4. To provide assistance to. each other in the form of training and research facilities in
the educational, professional, technical and administrative spheres;
5. To collaborate more effectively for the greater utilisation of their agriculture and
industries, the expansion of their trade including the study of the problems of
international commodity trade, the improvement of their transportation and
communication facilities and the raising of the living standards of their peoples;
436
42.172.
42.173.
42.174.
But matters had been moving steadily towards a greater unity and in 1973 the
ASEAN Ministerial Meeting decided that there should be a permanent
centralised secretariat located in Djakarta. With the establishment of the
EEC/ASEAN Joint Study Group in 1975, ASEAN, in a collective diplomatic
move towards the outside world, undertook discussion with the European
Economic Community. The next year, the Ministers took diplomatic steps to
formalise the corporate status and purposes ofthe Associat ion. On 24 February
at a summit meeting in Indonesia, held at Den Pasar in Bali, the representatives
of the five member states signed three important agreements.
42.175.
Much of the wording of the Declaration and the Treaty of Amity and
Cooperation reiterates and amplifies the purposes and aims adopted in the
1967 Bangkok Declaration. But there were also significant additions. For
instance, in the fourth sentence of the Preamble of the Declaration, the
signatories:
'V ndertake to consolidate the achievement of ASEAN and expand ASEAN
cooperation in the economic, social, cultural and political fields.'
437
Another important political point was the call for the establishment of a Zone
of Peace, Freedom and Neutrality (ZOPEAN) in South-East Asia, thus
transferring to the ASEAN level an initiative made originally by Malaysia in
1971. The economic development aspects are stated with more vigour and
precision than in the previous Declaration, while the Treaty of Amity and
Cooperation affirms the objective of regional peace and, no doubt with the
United Nations Charter in mind, contains a chapter (IV) entitled 'Pacific
Settlement of Disputes.'
4 2 1 76 .
At this conference the Ministers also appointed the first ASEAN SecretaryGeneral, Lieutenant-General Hartono Rekso Dharsono, Special Adviser on
Indo-Chinese Affairs to the Foreign Minister ofIndonesia. Provision was made
for other posts to be allotted to nationals from other ASEAN countries. Thus,
the year 1976 represented an affirmation and a strengthening of the unity of
organisation and purpose in the Association. It brought a clearer statement of
the desire of the members for the formation ofan area ofstability and economic
progress as a bulwark against attempts from outside to weaken them.
4 2 177.
Since the 1976 Summit Meeting, ASEAN has continued to make plans for
further progress. The Economic Ministers, at a meeting following the Summit,
simplified ASEAN's administrative arrangements by substituting for the
original eleven economic sub-committees five Permanent Committees: on (a)
Trade and Tourism; (b) Industry (including Energy); (c) Food, Agriculture and
Forestry; (d) Communications and Transport; (e) Finance and Banking.
They also agreed to allocate an industrial project for development under
ASEAN auspices to each member state. Early in 1977 a preferential trading
agreement was signed under which the five countries are to help each other in
the supply and purchase of basic commodities and provide market support for
the products of ASEAN industrial projects. Subsequently they agreed on tariff
reductions for some seventy items. Further consideration has also been given
to the development of the Association's economic and political relations with
the EEC, Japan, USA, Australia and New Zealand. In 1977 the Prime
Minister ofJapan, Mr Takeo Fukuda, at the end of a formal visit to the area,
announced the intention of his country to give political and economic support
to ASEAN and its member countries.
CHAPTER 43
Post-1945 diplomacy
43. I.
When the Second World War ended, residential diplomacy resumed its normal
rhythm, which had indeed never wholly ceased. The work of observing,
reporting, persuading and negotiating continued wherever countries were
accessible to each other, whether as allies or neutrals. National purposes in
wartime are different from those in peace, but, subject to the demands of
wartime security, diplomats en poste remained protected by the privileges and
immunities accorded by the Vienna Conventions of 1815. But much was
happening, regardless of changes in the balance of power, to alter the style of
international relations in the future.
43. 2 .
The first such change was physical - the fantastic growth in the speed and
availability of fast international travel. When a Naval Conference was
arranged to take place in London in 1935, any preliminary contact with the
Japanese delegates had to cease while the Japanese made their five-week
journey by sea to London. The corresponding journey by air today would take
thirteen and a half hours. The effect of this change on the mobility ofpoliticians,
diplomats and delegations, and the resultant effect on the work required of
resident diplomacy is not hard to imagine. 1
43.3.
The other decisive influence was the great increase in all countries ofthe direct
involvement of government in economic, social and technical affairs, of which
a large proportion had previously been handled, (ifat all,) outside government,
with a modicum ofrestraint imposed by national finance ministries and central
banks. The consequence was a corresponding growth at government level in
direct contact with other governments, the volume and content ofwhich could
not possibly be carried by the 'professional generalist' diplomatic service which
all nations maintain. The legal position of the travelling delegations which this
development produced is covered in 19.6- I o.
43.4.
Political relationships
439
Political relationships
43.5.
It might be supposed that in the most literal way fast air transport brought
nations formerly considered remote into closer touch with and understanding
of each other. This argument can be pressed too far. In the late nineteenth
century, for instance, accidents of history sometimes proved stronger than
accidents of geography. As a result of close naval relationships, Britain arrived
at some degree of sympathy and understanding with two of the 'remotest'
countries in the pre-aviation world - Japan and Chile. (Nor do over seventy
years of Franco-German relations starting in 1870 prove that propinquity
necessarily produces understanding and friendship.) But a combination of fast
travel with political developments such as the disappearance of European
empires has meant that a great acceleration in the growth of large regional
blocs has become possible. Previous to 1945, an Organisation of African Unity
was neither politically nor physically thinkable. Neither, for that matter, was a
United Europe. The result has been to add a new dimension to policy and
diplomacy, the weighing of not only the national but also the regional element
in judging an international situation.
43.6.
43.7.
The post-1945 period has also seen another way in which the dimensions of
day-to-day diplomacy have been widened through rapid international travel.
The classic example is the technique used by Dr Henry Kissinger, United
States Secretary of State from 1968 to 1977. There have of course been
many occasions in history where heads of government and foreign ministers
have acted as, in a sense, their own diplomatic agents and conducted
detailed negotiation. One has in mind Castlereagh, Metternich and Talleyrand at Vienna in 1815. Disraeli and Bismarck at Berlin in 1876, and the
Big Three, Woodrow Wilson, Clemenceau and Lloyd George in Versailles in
1919. There have also been many occasions on which mediatory roles between
440
Post-1945 diplomacy
The change in the style of diplomacy which has emerged in economic and
social affairs is less dramatic but more fundamental. It has meant the
acceptable and efficient incorporation into diplomacy of people whose
profeSsion is not diplomacy at all. They may be civil servants from home
departments of government or experts from industry, finance, trade unions,
professions or the academic world. 4
43.10.
In 1957 the Federal German Government and the British Government held
negotiations in Bonn about the German contribution towards the expense of
maintaining British military forces in Germany (Stationierungskosten). Both
delegations were led by senior diplomats specialising in economic matters. The
two leaders were supported by experienced officials from their respective
economic and defence ministries, while the British team also included the
senior member of the British Embassy in Bonn handling Anglo-German
economic relations. This formation was highly advantageous: negotiation of
this kind involves expert technical knowledge of defence and finance on the
part of members of the delegation who conduct subsidiary bilateral talks.
Diplomatic experience is needed, and an easy access to political authority
which may have to be invoked if, as is often the case, political side-issues may be
the final obstacles to agreement. All these things occurred, and a successful
compromise was reached.
43.1
I.
441
one hand, authority at the political level is greater than at the official; on the
other hand, a premature commitment by a political leader reduces flexibility
and can make compromise more difficult. But there is one absolute prerequisite
at all stages if a result satisfactory to all is to be achieved - mutual
communication and trust between all members of a negotiating team. (A bad
team can by good fortune achieve a good agreement, but the attempt is not
advised.)
43.12.
43.13.
There are two diplomatic riders to the above. When a new international
Convention or Constitution is being negotiated and drafted, it is indispensable
for any interested state to include in the delegation an expert international
lawyer, preferably from its own Foreign Office. Secondly, in a politically
charged age, an official delegation at a Conference where there is forewarning
of political trouble (like that experienced by Israel in UNESCO in 1974) does
well to attach to itself a political adviser. The easiest way to do this may be to
put on the Conference list an official from the permanent diplomatic mission to
the host country. He or she may never be needed. But absence ofthe name from
the Conference list could mean at least temporary exclusion by a conscientious
Conference security guard from a confidential meeting which the official
concerned had been invited by his delegation to attend. 7
CHAPTER 44
Advice to diplomatists
44. 1
443
11 faut surtout qu'un bon Negociateur 3 ait assez de pouvoir sur lui-meme pour resister a
la demangeaison de parler avant que de s'etre bien consulte sur ce qu'il a adire, qu'il ne
se pique pas de repondre sur le champ & sans premeditation sur les propositions qu'on
lui fait, & qu'il prenne garde de tomber dans le deffaut d'un fameux Ambassadeur
etranger de natre terns, qui etoit si vif dans la dispute, que lorsqu'on l'echauffoit en le
contredisant, il reveloit souvent des secrets d'importance pour soutenir son opinion.
11 ne faut pas aussi qu'il donne dans le deffaut oppose de certains esprits mysterieux, qui
font des secrets de rien, & qui erigent en affaires d'importance de pures bagatelles; c'est
une marque de petitesse d'esprit de ne s~avoir pas discerner les choses de consequence
d'avec celles qui ne le sont pas, & c'est s'ater les moyens de decouvrir ce qui se passe, &
d'acquerir aucune part a la confiance de ceux avec qui on est en commerce, lorsqu'on a
avec eux une continuelle reserve.
Advice to diplomatists
445
443
Un habile Negociateur ne laisse pas penetrer son secret avant le temps propre; mais il
faut qu'il sc;ache cacher cette reteniie a ceux avec qui il traite; qu'illeur temoigne de
I'ouverture & de la confiance, & qu'illeur en donne des marques effectives dans les
choses qui ne sont point contraires a ses desseins; ce qui les engage insensiblement a y
repondre par d'autres marques de confiance en des choses souvent plus importantes; il y
a entre les Negociateurs un commerce d'avis reciproques, il faut en donner, si on veut en
recevoir, & le plus habile est celui qui tire le plus d'utilite de ce commerce, parce qu'il a
des vues plus etendiies, pour profiter des conjonctures qui se presentent.
11 ne suffit pas pour former un bon Negociateur, qu'il ait toutes les lumieres, toute la
dexterite & les autres belles qualitez de I'esprit; il faut qu'il ait celles qui dependent des
sentimens du coeur; il n'y a point d'employ qui demande plus d'elevation & plus de
noblesse dans les manieres d'agir.
447
Tout homme qui entre dans ces sortes d'employs avec un esprit d'avarice, & un desir d'y
chercher d'autres interets que ceux qui sont attachez a la gloire de reiissir & de s'attirer
par la I'estime & les recompenses de son Maitre, n'y sera jamais qu'un homme tresmediocre.
Pour soutenir la dignite attachee a ces employs, il faut que celui qui en est revetu, soit
liberal & magnifique, mais avec choix & avec dessein, que sa magnificence paroisse
dans son train, dans sa livree & dans le reste de son equipage; que la proprete,
I'abondance, & meme la delicatesse, regne sur sa table: qu'il donne souvent des fetes et
des divertissemens aux principales personnes de la Cour OU il se trouve, & au Prince
meme, s'il est d'humeur a y prendre part, qu'il tache d'entrer dans ses parties de
divertissemens, mais d'une maniere agreable & sans le contraindre, & qu'il yapporte
toujours un air ouvert, complaisant, honnete et un desir continuel de lui plaire.
449
S'il est dans un Etat populaire, il faut qu'il assiste a toutes ses Diettes ou Assemblees,
qu'il y tienne grande table pour y attirer les Deputez, et qu'il s'y acquiere par ses
honnestetez & par ses presens, les plus accreditez & les plus capables de detourner les
resolutions prejudiciables aux interets de son Maitre, & de favoriser ses desseins.
44. 10.
Une bonne table facilite les moyens de sc;avoir ce qui se passe, lorsque les gens du pays
ont la liberte d'aller manger chez I'Ambassadeur, & la depense qu'il y fait est non
seulement honorable, mais encore tres-utile a son Maitre lorsque le N egociateur la sc;ait
bien mettre en oeuvre. C'est le propre de la bonne chere de concilier les esprits, de faire
naitre de la familiarite et de l' ouverture de coeur entre les convives.
On appelle un Ambassadeur un honorable Espion; parce que I'une des ses principales
occupations est de decouvrir les secrets des Cours ou il se trouve, & il s'acquitte mal de
son employ s'il ne sc;ait pas faire les depenses necessaires pour gagner ceux qui sont
propres a l' en instruire.
44. 12 .
444
Advice to diplomatists
vulgaire, qu'il faut qu'un habile Ministre soit un grand mai'tre en l'art de fourber; la
fourberie est un effet de la petitesse de l'esprit de celui qui le met en usage & c'est une
marque qu'il n'a pas assez d'etendue pour trouver les moyens de parvenir ases fins, par
les voyes justes & raisonnables.
44. 14.
Un homme qui se possede & qui est toujours de sang fro id a un grand avantage a traiter
avec un homme vif & plein de feu; & on peut dire qu'ils ne combattent pas avec armes
egales. Pour reiissir en ces sortes d'employs, il y faut beaucoup moins parlerqu'ecouter;
il faut du flegme, de la retenue, beaucoup de discretion & une patience atoute epreuve.
Un homme engage dans les employs publics, doit considerer qu' il est destine pour agir &
non pas pour demeurer trop longtemps enferme dans son cabinet, que sa principale
etude doit etre de s'instruire de ce qui se passe parmi les vivans, preferablement atout ce
qui s' est passe chez les morts.
44. 16.
Un sage & habile Negociateur doit non seulement etre bon Chretien; mais paroitre
toujours tel dans ses discours & dans sa maniere de vivre.
11 doit etre juste & modeste dans toutes ses actions, respectueux avec les Princes,
complaisant avec ses egaux, carressant avec ses inferieurs, doux, civil & honneste avec
tout le monde.
44. 1 8.
11 faut qu'il s'accommode aux moeurs & aux Coutumes du Pays Oll il se trouve, sans y
temoigner de la repugnance & sans les mepriser, comme font plusieurs Negociateurs qui
loiient sans cesse les manieres de vivre de leurs pays pour trouver a redire a celles des
autres.
44 19
Un Negociateur doit se persuader une fois pour toutes qu'il n'est pas assez autorise pour
reduire tout un pays a sa fac;on de vivre, & qu'il est bien plus raisonnable qu'il
s'accommode a celle du Pays Oll il est pour le peu de temps qu'il y doit rester.
11 ne doit jamais blamer la forme du gouvernement & moins encore la conduite du
Prince avec qui il negocie, il faut au contraire qu'illoiie tout ce qu'il y trouve de loiiable
sans affectation et sans basse flaterie. 11 n'y a point de Nations & d'Etats qui n'ayent
plusieurs bonnes loix parmy quelques mauvaises, il doit loiier les bonnes & ne point
parler de celles qui ne le sont pas.
44.2 I.
11 est bon qu'il sache ou qu'il etudie l'histoire du Pays Oll il se trouve, afin qu'il ait
occasion d' entretenir le Prince ou les principaux de sa Cour des grandes actions de leurs
Ancetres & de celles qu'ils ont faites eux-memes ce qui lui est fort capable de lui acquerir
leur inclination, qu'illes mette souvent sur ces matieres, & qu'il se les fasse raconterpar
eux, parce qu'il est sur qu'illeur fera plaisir de les ecouter, et qu'il doit rechercher aleur
en faire.
Un Negociateur doit toujours faire des relations avantageuses, des affaires de son Maitre
dans le pays Oll il se trouve, mais avec discretion & en se conservant de la creance pour
les avis qu'il don ne; il faut pour cela qu'il evite de debiter des mensonges, comme font
souvent certains Ministres de nos voisins qui ne font aucun scrupule de publier des
avantages imaginaires en faveur de ceux de leur party. Outre que le mensonge est
indigne d'un Ministre public, il fait plus de tort que de profit aux affaires de son Ma'itre,
parce qu'on n'ajoute plus de foy aux avis qui viennent de sa part; il est vray qu'il est
difficile de ne pas recevoir quelquefois de faux avis, mais il faut les donner tels qu'on les a
rec;us, sans s' en rendre garand; & un habile Negociateur doit etablir si bien la reputation
de sa bonne-foy dans l'esprit du Prince & des Ministres avec qui il negocie, qu'ils ne
doutent point de la verite de ses avis lorsqu'illes leur a donnez pour surs non plus que de
la verite de ses promesses.
Un Ambassadeur doit eviter de recevoir au nombre de ses principaux domestiques des
Advice to diplomatists
445
gens du Pays OU il se trouve, ce sont d'ordinaire des espions qu'il introduit dans sa
malson.
Quelques elevez que soient les Princes, ils sont hommes comme nous, c'est-cl-dire sujets
aux memes passions, mais outre celles qui leur sont communes avec les autres hommes,
l'opinion qu'ils ont de leur grandeur, & le pouvoir effectifqui est attache cl leur rang leur
donnent des idees differentes de celles du commun des hommes, & il faut qu'un bon
Negociateur agisse avec eux par rapport cl leurs idees, s'il veut ne pas se tromper.
11 est plus avantageux cl un habile Negociateur de negocier de vive voix, parce qu'il a
plus d'occasions de decouvrir par ce moyen les sentimens & les desseins de ceux avec qui
il traite, & d' employer sa dexterite cl leur en inspirer de conformes cl ses vues par ses
insinuations & par la force des ses raisons.
La plupart des hommes qui parlent d'affaires ont plus d'attention cl ce qu'ils veulent dire
qu'cl ce qu'on leur dit, ils sont si pleins de leurs idees qu'ils ne songent qu'cl se faire
ecouter, & ne peuvent presque obtenir sur eux-memes d'ecouter cl leur tour.... L'une
des qualitez le plus necessaire cl un bon Negociateur est de sc;avoir ecouter avec attention
& avec reflexion tout ce qu'on luy veut dire, & de repondrejuste & bien cl propos aux
choses qu'on luy represente, bien-Ioin de s'empresser cl declarer tout ce qu'il sc;ait & tout
ce qu'il desire. 11 n'expose d'abord le sujet de sa negociation quejusqu'au point qu'il faut
pour sonder le terrain, il regie ses discours & sa conduite sur ce qu'il decouvre tant par
les reponses qu'on lui fait, que par les mouvemens du visage, par le ton & l'air dont
on lui parle; & par toutes les autres circonstances qui peuvent contribuer cl luy faire
penetrer les pensees & les desseins de ceux avec qui il traite, & apres avoir connu
la situation & la portee de leurs esprits, I'etat de leurs affaires, leurs passions & leurs
interests, il se sert de toutes ses connoissances pour les conduire par degrez au but qu'il
s' est propose.
C'est un des plus grands secrets de l'art de negocier que de sc;avoir, pour ainsi dire,
distiler goute cl goute dans l'esprit de ceux avec qui on negocie les choses qu'on a interest
de leur persuader....
Comme les affaires sont ordinairement epineuses par les difficultez qu'il y a d'ajuster des
interests souvent opposez entre des Princes & des Etats qui ne reconnoissent point de
Juges de leurs pretentions, il faut que celuy qui en est charge employe son adresse cl
diminuer & cl aplanir ces difficultez, non seulement par les expediens que ses lumieres
luy doivent suggerer, mais encore par un esprit liant & souple qui sc;ache se plier &
s'accommoder aux passions & meme aux caprices & aux preventions de ceux avec qui il
traite. Un homme difficultueux & d'un esprit dur & contrariant augmente les difficultez
attachees aux affaires par la rudesse de son humeur, qui aigrit & aliene les esprits, & if
erige souvent en affaires d'importance des bagatelles & des pretentions mal fondees,
dont il se fait des especes d'entraves qui l'arretent cl tous momens dans le cours de sa
negociation.
n ne se trouve presque point d'hommes qui veiiillent avoiier qu'ils ont tort, ou qu'ils se
trompent, & qui se depoiiillent entierement de leurs sentimens en faveur de ceux
d'autruy, quand on ne fait que les contredire par des raisons opposees quelques bonnes
qu'elles puissent etre, mais if y en a plusieurs qui sont capables de se relacher de
quelques-unes de leurs opinions, quand on leur en accorde d'autres, ce qui se fait
moyennant certains menagemens propres cl les faire revenir de leurs preventions; il faut
pour cela avoir l'art de leur alleguer des raisons capables de justifier ce qu'ils ont fait ou
ce qu'ils ont cru par le passe, afin de flater leur amour propre, & leur faire connoitre
ensuite des raisons plus fortes appuyees sur leurs interets, pour les faire changer de
sentiment et de conduite ... if faut eviter les contestations aigres & obstinees avec les
Princes & avec leurs Ministres & leur representer la raison sans trop de chaleur, & sans
vouloir avoir toujours le dernier mot.
446
44.30.
44.3 I.
Advice to diplomatists
A century later the first Earl of Malmesbury 4 wrote to Lord Camden, at the
latter's request, on his nephew, MrJames, being destined for the foreign service:
Park Place, April 1I, 1813.
My DEAR LoRD,
It is not an easy matter in times like these, to write anything on the subject of a Foreign
Minister's conduct that might not be rendered inapplicable to the purpose by daily
events. Mr. James' best school will be the advantage he will derive from the abilities of
his Principal, and from his own observations.
44.32.
The first and best advice I can give a young man on entering this career, is to listen, not to
talk - at least, not more than is necessary to induce others to talk. I have in the course of
my life, by endeavouring to follow this method, drawn from my opponents much
information, and concealed from them my own views, much more than by the
employment of spies or money.
44.33.
To be very cautious in a'!-y country, or at a'!-y court, of such as, on your first arrival,
appear the most eager to make your acquaintance and communicate their ideas to you.
I have ever found their professions insincere, and their intelligence false. They have been
the first I have wished to shake off, whenever I have been so imprudent as to give them
credit for sincerity. They are either persons who are not considered or respected in their
own country, or are put about you to entrap and circumvent you as newly arrived.
44.34.
Englishmen should be most particularly on their guard against such men, for we have
none such on our side the water, and are ourselves so little coming towards foreigners, that
we are astonished and gratified when we find a different treatment from that which
strangers experience here; but our reserve and ill manners are infinitely less dangerous to
the stranger than these premature and hollow civilities.
44.35.
To avoid what is termed abroad an al/achement. If the other party concerned should
happen to be sincere, it absorbs too much time, occupies too much your thoughts; if
insincere, it leaves you at the mercy of a profligate and probably interested character.
44.36.
Never to attempt to export English habits and manners, but to conform as far as possible
to those of the country where you reside - to do this even in the most trivial things - to
learn to speak their language, and never to sneer at what may strike you as singular and
absurd. Nothing goes to conciliate so much, or to amalgamate you more cordially with
its inhabitants, as this very easy sacrifice o(your national prejudices to thein.
44.37.
To keep your cypher and all your official papers under a very secure lock and key; but
not to boast of your precautions, as Mr Drake did to Mehee de la Touche.
44.38.
Not to allow any opponent to carry away any official document, under the pretext that
he wishes 'to study it more carefully;' let him read it as often as he wishes, and, if it is
necessary, allow him to take minutes of it, but both in .your presence.
44.39.
Not to be carried away by any real or supposed distinctions from the sovereign at whose
Court you reside, or to imagine, because he may say a few more commonplace sentences
to you than to your colleagues, that he entertains a special personal predilection for you,
or is more disposed to favour the views and interests of your Court than if he did not
notice you at all. This is a species of royal stage-trick, often practised, and for which it is
right to be prepared.
44-40.
Whenever you receive discretionary instructions (this is, when authority is given you) in
order to obtain any very desirable end, to decrease your demands Or increase your
concessions according as you find the temper and disposition ofthe Court where you are
employed, and to be extremely careful not to let it be supposed that you have any such
Advice to diplomatists
447
authority; to make a firm, resolute stand on the first offer you are instructed to make,
and, if you find 'this nail will not drive,' to bring forward your others most gradually, and
not, either from an apprehension of not succeeding at all, or from an over-eagerness to
succeed too rapidly, injure essentially the interests of your Court.
44.4 I.
44.42.
In ministerial conferences, to exert every effort of memory to carry away faithfully and
correctly what you hear (what you say in them yourself you will not forget); and, in
drawing your report, to be most careful it should be faithful and correct. I dwell the
more on this (seemingly a useless hint) because it is a most seducing temptation, and one
to which we often give way almost unconsciously, in order to give a better turn to a
phrase, or to enhance our skill in negotiation; but we must remember we mislead and
deceive our Government by it.
I am, etc. 5
44.43.
A good diplomatist will always endeavour to put himself in the position ofthe
person with whom he is treating, and try to imagine what he would wish, do
and say, under those circumstances. As Callieres observed:
'11 faut qu'il se depoiiille en quelque sorte de ses propres sentimens pour se mettre en la
place du Prince [say, the government] avec qui il traite, qu'il se transforme, pour ainsi
dire en luy, qu'il entre dans ses opinions & dans ses inclinations, & qu'il se dise cl luimeme apres I' avoir connu tel qu' il est, sij'itois en la place de ce Prince avec le meme pouvoir, les
memes passions & les memes prijugez, quels effets produiroient en moy les choses que j'ay a luy
representer?'
44.44.
The man who speaks in a foreign tongue, not his own, is to a certain extent
wearing a disguise. If one wants to discover his ideas de derriere la tete encourage
him to use his own language. Prince Bismarck is reported to have said: 'Der alte
[ich verstand Meyendorfl] hat mir einmal gesagt: Trauen Sie keinen
Englander der das Franzosische mit richtigem Accent spricht, und ich habe das
meist bestatigt gefunden. Nur ado Russell mochte ich ausnehmen.' This
remark cuts both ways. On the other hand, a minister who can spare time to
study the language of the country to which he is sent, will find its acquisition of
great advantage. The surest way to gain admission to the heart ofa nation is to
give this proofofa desire to cultivate intimate relations with, and to understand
the feelings of, the people.
44.45
A diplomatist must be on his guard to protect the dignity of the state which he
represents. Thus, the Duc de Mortemart, French Ambassador at Petersburg,
having been invited to attend a performance of the Te Deum in celebration of
Russian victories over the Turks, learnt that it was to be given in a church
decorated with flags taken from the French, and on this ground declined to be
present. This course was approved by both his own government and by the
448
Advice to diplomatists
Emperor of Russia. 6 In October 1831, after the capture of Warsaw from the
Polish insurgents by the Russian troops, M. Bourgoing, the French Minister,
refused to be present at a Te Deum ordered to celebrate the triumph of the
Russian Government, and he informed Count Nesselrode of his intention to
absent himself, his reason being the strong sympathy for the Poles which was
felt in France. On the same day he dined at an official banquet given at the
Austrian Embassy, went publicly the next day to the theatre, and passed the
evening at a private house. I t does not appear that his conduct was made a
ground of complaint to the French Government by the Emperor? But it is
scarcely admissible for an envoy to refuse to be present on such occasions,
merely on the ground of friendship between his own country and the
belligerent over whose defeat the rejoicing is held.
44.46.
44.47.
The head of a mission should be careful that the affairs, the manners and
customs of the country in which he is residing are not criticised at his table.
What he or his guests may say on such subjects is sure to be repeated to his
disadvantage. A native occasionally makes disparaging remarks about his own
country. A diplomatist should think at least twice before he expresses
agreement with them.
44.48.
44.49.
A diplomatist must be on his guard against the notion that his own post is the
centre of international politics, and against an exaggerated estimate ofthe part
assigned to him in the general scheme. Those in whose hands is placed the
supreme direction of foreign relations are alone able to decide what should be
the main object of state policy, and to estimate the relative value of political
friendships and alliances.
44.50.
Advice to diplomatists
449
44.51.
44.52.
The case of Bulwer8 at Madrid, in 1848, who enclosed, in an official note to the
Spanish Minister for Foreign Affairs, a copy ofa despatch of 16 March, marked
'confidential', in which Palmerston instructed him to ofler to the Spanish
Government advice on the internal affairs of the kingdom, is an example ofthe
unwisdom of putting in writing language which, if used orally, would have
been much less likely to give offence.
44.53.
Before sending home the report of any important conversation with the
minister for foreign affairs, in which the latter has made statements or given
promises that may afterwards be relied on as evidence of intentions or
undertakings of the government in whose name he is assumed to have spoken, it
may be advisable to submit to him the draft report for any observations he may
desire to make. It is said that Lord Normanby, when Ambassador at Paris,
reproduced a conversation of M. Guizot's, which the latter asserted was
incorrect, and he pointed out that the report of a conversation made by a
foreign agent can only be regarded as authentic and irrefragable when it has
previously been su bmitted to the person whose language is being reported. He
added that if Lord Normanby had conformed to this practice, he would have
spoken otherwise and perhaps better. 9
44.54
44.55.
Despatches, their style. '11 faut que le stile des depeches soit net & concis, sans y employer de
paroles inutiles & sans y rien obmettre de ce qui sert a la clarte du discours, qu'il regne
une noble simplicite, aussi eloignee d'une vaine affectation de sc;ience & de bel esprit, de
negligence & de grossierete, & qu'elles soient egalement epurees de certaines fac;ons de
parler nouvelles & affectees, & de celles qui sont basses & hors du bel usage. 11 y a peu de
choses qui puissent demeurer secrettes parmi les hommes qui ont un long commerce
ensemble, des lettres interceptees & plusieurs autres accidens imprevus les decouvrent
souvent, & on en pourrait citer ici divers exemples; ainsi il est de la sagesse d'un bon
Negociateur de songer lorsqu'il ecrit que ses depeches peuvent etre vues du Prince ou des
Ministres dont il parle, & qu'il doit les faire de telle sorte qu'ils n'ayent pas de sujet
legitime de s' en plaindre.' 10
44.56.
When not too hard pressed, heads of missions and of Foreign Office
departments can contribute greatly to the training of junior members of the
Service in their duties and conduct in general, more particularly perhaps in the
proper methods of drafting letters, despatches, etc. If, as is all too apt to happen
nowadays, they have too little time to act personally as instructors, they should
make a point of delegating the task to some experienced member of their
mission or department. This applies also to dress and behaviour: casualness in
450
Advice to diplomatists
either on the part of a member of the Foreign Service reflects discredit not only
on himself but also on the mission or department to which he belongs.
44.57.
The duties ofthe head ofa mission include also the furtherance ofthe legitimate
private interests of his own countrymen residing in or passing through the
country to which he is accredited, the giving of advice to them when in
difficulties and especially intervention on their behalf, if they invoke his
assistance when they are arrested and detained in custody. This should be done
through the ministry for foreign affairs, to which he alone is entitled to address
himsel He should not, however, interfere in civil actions that may be brought
against them, or in criminal matters except where manifest injustice or a
departure from the strict course of legal procedure has taken place. He must on
no account occupy himself with the interests of any but the subjects or
ressortissants (a much wider term) of his own sovereign or state, and especially
not with those of the subjects of the local sovereign.
44.58.
44.59.
The reader who has reached this point in the chapter will reflect that the art of
negotiation is not new and that wisdom from the past is every bit as valid today
as it was in the times of Callieres and Malmesbury. The twentieth-century
psychologist may analyse what the skilled practitioner has always known
instinctively. Negotiation is a dialogue made up of give and take, and the
diplomat will be a poor performer who, as Callieres says, is so full of his own
ideas that he can only think about getting himself listened to, and can scarcely
bring himself to listen in his turn. 11 It is noteworthy that this insistence on the
virtue of listening is common to both Callieres and Malmesbury. Perhaps the
advice of the latter to a young man 'to listen, not to talk - at least not more than
is necessary to induce others to talk - is a shade cynical, or at least too sweeping.
Sometimes you have a long or complex message to deliver which may need
clarifying. Sometimes, maybe, the other interlocutor has a legitimate wish to
listen himself. Everyone knows the colleague who asks everything and gives
nothing; and Callieres warned against this too. Malmesbury has a good point for
beginners; but Callieres, mindful of the potency of suggestion, recommends
learning the secret of distilling 'drop by drop' into the mind of the listener the
matter of which one wishes to persuade him. 12 And it may happen that the
advice to listen becomes more rather than less urgent with experience; for the
more one has to say, the greater the temptation to say it, whether it be timely or
not.
451
44. 6 1.
One should pause a moment over 'truth.' When a Soviet Foreign Minister told
the President of the United States in 1962 that there were no Soviet missile
launchers in Cuba, President Kennedy happened to have in his desk drawer a
photograph ofjust such weapons. What could be his judgement? Perhaps that
of Aristotle who, it is said, when asked what a person could gain by uttering a
falsehood, replied, 'Not to be credited when he shall speak the truth.' The
incident did not change the power position in the world. I t merely cast a
qualification over future judgements made not at the diplomatic but at the
highest political level.
44.62.
44.64.
44.65.
452
Advice to diplomatists
really necessary. For the answer one can best refer back to the battle of the
retinues at the Tower Wharf in London in 166 I, before general rules ofprotocol
and precedence had evolved into an accepted system. 16 An alternative
reference might be to the diplomatic chaos produced by President Thomas
J efferson of the United States, who decided, on lively democratic grounds, to
dispense with any attempt at formal seating arrangements and to place
members of his Administration and foreign envoys and their wives in an order
which corresponded to his feelings towards individuals and the governments
they represented. 17
44. 66 .
Put generally and less dramatically, ifno rules governed diplomatic and other
official occasions, the problem of seating would be solved by a free-for-all with
unfair results. In this respect diplomats would behave neither better nor worse
than other human beings. Obviously in public life some people are more
powerful or more interesting than others, and a seat next to one (or two) ofthem is
something of both a privilege and an advantage. If there were no rules there
would be pushing and shoving, and unscrupulous characters would, with
whatever pretence of politeness, place themselves more effectively than others
with a more developed sense of courtesy. Much bad blood would be created
and the host government would rightly be criticised for letting it happen. A
fixed order may repeatedly put a diplomat next to Mrs X with whom he has no
common language, or Mr Y to whom, two dinners ago, he or she had already
said all that there was to say, after listening to all the other had to contribute.
But diplomats and politicians move on: discomforts caused by official placement
(arrangement of guests at a table) can easily be exaggerated and there are often
pleasant surprises. At least, if the rules are followed, there is no discord. The
wisdom of the Congress of Vienna is not to be despised.
An important contribution a diplomat can make to this procedural harmony is
not to take any risk of causing a scene when he himself is the host at some
diplomatic occasion. He should never be content to trust to instinct or to an
ostensibly knowing colleague's advice. If he has the slightest doubt about
placement at a table, or at separate tables - and both types of party will
continue to take place - he should consult the host government's Head
of Protocol. It is that official's duty to know and to advise; if he does not
know, the person who has put a difficult problem to him has rendered
him a service. The problem may recur.
Protocol and placement need not be totally rigid. Let us suppose that, as can
quite possibly happen, the balance of acceptances and refusals for a sit-down
luncheon leaves the host in a situation where all the diplomatic guests outrank
all the guests from the host country. To seat them accordingly might well defeat
the whole purpose of the party. It is possible to adjust the placement to suit
common sense, by mixing diplomatic and host country guests, but only if the
precaution is taken in advance of making sure that all the guests who will be
'demoted' according to protocol have no objection. IS
Public occasions
453
quietly when the next opportunity for a private word arises. If the diplomat
who notices the mistake does not do as much as this, he may be the passive
and unwitting accomplice of less charitable persons who know what has
happened and rather enjoy the thought that it might happen again.
Public occasions
44.7 0 .
The real difficulty occurs when on a public occasion, or an occasion which will
be known about publicly, a mistake is made by the host government or by, say,
a diplomatic colleague, which could legitimately be thought to disturb
international relations or give rise to misunderstanding. The situation is
particularly difficult to handle when, as can well be the case, the diplomat
whose position is adversely affected has only a few seconds in which to make up
his mind whether to protest at once or to let the matter pass. In the latter case he
can protest later to the host government, but this is obviously much less telling
than to make his objection known at once.
44.71.
44.7 2 .
454
Advice to diplomatists
countries every detail of speech and conduct may be planned and observed
with an eye to its potential utilisation in propaganda, a diplomat will be wise to
refrain from applauding an official speech unless he understands it, even
though his applause might be intended merely as a courtesy to the host
government. But all these counsels to circumspection lead back to a reminder of
the elementary principle that the diplomatic officer arriving at a new post must
try to develop a feel for the way in which the host country manages its external
policy.
44.73.
If you are in the United States, you will be conscious of the important and
active role played by the Congress, and particularly by the Senate Foreign
Relations Committee, in the supervision of policy and the appointment of
ambassadors. This perspective is reflected in those Latin American countries
which maintain democratic government on the United States model. In
Britain and other Commonwealth countries, where the power of the executive
is more direct, there is sometimes a temptation to impatience with what seem
(wrongly) to be deliberate American procrastinations.
44.74.
In countries with political organisations ofthe French type, a diplomat will find
that he has to learn to understand and work with the so-called cabinet system. 19
The Minister, as in all governments, derives information and support from his
department. But he has also a personal supporting team of his own choice,
consisting partly of officials and partly of people from political, academic and
professional life who, while conversant with external policy, are his personal
eyes and ears in relation to what the rest of the government is thinking and
doing. This arrangement, among other things, helps to protect his external
policy against erosion from outside his own department.
44.75.
Since the institutions of the European Community are based very largely on a
Latin rather than an Anglo-Saxon tradition, it is natural that a cabinet system
should prevail there; and the diplomat in Brussels, whether representing a
member country or a non-member, will need to develop relations with the
cabinet as well as the department of any Commissioners with whom contact is
needed.
44.76.
Internal discords
455
Internal discords
44.77.
Diplomacy, like any other worldwide aCtivIty, enjoys and suffers its own
peculiar rewards and deprivations: against absorbing interest must be set the
disadvantages of family separation; against exciting variety, periods of
unexpected monotony. Diplomacy also has privileges, as described in previous
chapters, linked with special obligation and responsibility. Within this general
framework are the phases ofpersonal relationship which can, at least over short
periods, make or mar the good functioning of the machine as a whole. One of
these, while common enough in other walks of life, has particular dangers in
diplomacy. It has been called the Us and Them complex; and it can still arise
even in an age when the international telephone system is generally at hand to
link the post abroad with the ministry at home.
44.78.
44.79.
None of this is wholly unreasonable; its only fault is that, ifit is allowed to grow,
it is fatal, first to personal relationships between post and ministry, and later to
the conduct of the diplomatic machine. The main responsibility for averting
this development of the Us and Them disease lies with the head of the post or
the head of the department. But no one should be unconscious of the possible
danger, or too torpid, or too timid, to do something about it when its symptoms
appear. There are ways and ways of complaining or protesting; most of them
are wrong and can produce a pained reaction. The search for the right way is
one of the challenges to diplomats and to a diplomatic service. Neither total
complacency nor total officiousness is helpful, and tattle is apt to be worse still.
Mutual confidence within diplomatic services varies from nation to nation, but
there are certain observable general principles and this is one of them. 21
44.80.
Most advice to diplomats falls, as natural science used to fall, under the heading
'organised common sense.' But among the traps that can be difficult to detect
without advice is the following. It can happen that a young diplomat suddenly
finds himself or herself thrown into a position of abnormally heavy
responsibility when an unexpected crisis occurs in the absence of the head of
mission or leader of delegation. The young diplomat performs brilliantly,
possibly in a way that attracts public attention. It is subconsciously tempting at
such a moment to promote oneself to a rank beyond that which one's limited
service will carry. The essence ofdiscretion at this point is to remind oneselfthat
experience is the best ally of true talent.
456
44.81.
Advice to diplomatists
But enough of precept. Shakespeare must have, as so often, the last word. No
one is quite sure whether Polonius's advice to Laertes is to be taken as parody,
irony or high seriousness. But to say to a diplomat:
'... to thine own self be true,
And it must follow, as the night the day,
Thou canst not then be false to any man'22
is to get as near to the kernel of truth as this Guide can travel.
And if the diplomat, aspiring or experienced, who has read thus far should
feel that he has had his fill of instruction and exhortation, let him, or her, take
consolation in Warwick's exclamation:
'Alas! How should you govern any kingdom
That know not how to use ambassadors?'23
Appendix I
Definitions and terms
A. SOlDe dermitions
I.
The following elucidations of certain terms and expressions, some of which are
no longer in current use, have been retained from earlier editions on account of
their intrinsic interest. Briefer notes have been added on a few terms commonly
used today, but not figuring in the index.
2.
3.
A good example of this is contained in the last paragraph ofa note addressed by
the Russian Charge d'Affaires at Constantinople to the Reis-Effendi in 1826,
which was thus worded:
Le soussigne terminera la tache que lui imposent les instructions de son souverain, en
declarant cl la Porte Ottomane que, si, contre la legitime attente de l'Empereur, les
mesures indiquees dans les trois demandes qui forment le present office n'auraient pas
ete mises completement cl execution dans le delai de six semaines, il quitterait aussit6t
Constinatinople. Il est facile aux ministres de Sa Hautesse de prevoir les consequences
immediates de cet evenement.
Le soussigne, etc.
MI;\/CIAKI. 2
Constantinople,
le 5 avril, 1826.
4.
Another case of ultimatum in the ordinary sense occurred in 1850, when, by the
orders ofPalmerston, the British Minister at Athens presented a demand for the
settlement of the Don Pacifico claim within twenty-four hours, failing which a
blockade of the coasts of Greece would be established and Greek merchant
ships seized. 3
The note from the British Minister to the Greek Minister for Foreign Affairs
of 5 January 1850, after making a formal demand for reparation for the
wrongs and injuries inflicted in Greece upon British and Ionian subjects, and
458
Appendix I
the satisfaction of their claims within twenty-four hours, announced that if the
demand were not literally complied with within that period after the note had
been placed in the hands of the Hellenic Minister for Foreign Affairs, the
Commander-in-Chief of Her Majesty's naval forces in the Mediterranean
would have no other alternative (however painful the necessity might be to
him) than to act at once on the orders he had received from Her Majesty's
Government. 4
5.
6.
Austrian ultimatum to Serbia. This took the form ofa note, dated 23july 1914,
to the Serbian Government, containing various demands, and requiring an
answer by six o'clock in the evening of the 25th. The reply of the Serbian
Government not being regarded as satisfactory, the Austro-Hungarian
Minister left Belgrade, and war was declared against Serbia on the 28th.
7.
On 3 1 july, 1914, the German Ambassador in Paris asked the President of the
Council (who was also Minister for Foreign Affairs) what would be the attitude
of France in the case of war between Germany and Russia, and said he would
return for a reply at one o'clock on the following day. On 3 August, at 6,45 p.m.
alleging acts of aggression committed by French aviators, he communicated a
declaration of war. This does not appear to have been preceded by an
ultimatum.
8.
9.
The note of the German Minister presenting this demand did not mention any
length of time for an answer, but it appears from the telegram of 3 August sent
out by the Belgian Minister for Foreign Affairs to the Belgian Ministers at St
Petersburg, Berlin, London, Paris, Vienna and The Hague, that the German
Minister had verbally required an answer within twelve hours.
10.
On the same occasion the British Government, on 31 july, asked the German
A. Some definitions
459
But the meaning of ultimatum is not restricted to the sense which it bears in the
foregoing examples. During the course of a negotiation it may imply the
maximum amount of concession which will be made in order to arrive at an
agreement, where no resort to compulsion is contemplated in case of refusal.
Cases have occurred in which it has been used as denoting an irreducible
minimum which would be accepted, a plan or scheme ofarrangement which it
was sought to impose, a maximum of what would be conceded, and the like.
12.
l Tti possidetis and status quo. These two phrases often amount to the same thing,
and are used to denote actual possession by right of conquest, occupation or
otherwise, at some particular moment, which has to be defined with as much
exactness as possible in the proposals for a treaty of peace, or in the treaty itself. 5
But while uti possidetis relates to the possession of territory, the status quo may be
the previously existing situation in regard to other matters, e.g. to privileges
enjoyed by one of the parties at the expense of the other, such as the French
privilege of taking and drying fish on a portion of the coast of Newfoundland.
In the memorial of the King of France of 16 March, 176 I, it was proposed
that the two Crowns shall remain in possession of what they have conquered from each
other, and that the situation in which they shall stand on the I st September, 176 I, in the
East Indies, on the I st]uly in the West Indies and Africa, and on the I st May following
in Europe, shall be the position which shall serve as a basis to the treaty which may be
negotiated between the two Powers. 6
The British reply accepted the status quo, but it is alleged to have said nothing
'with regard to the epochs.' It did, in fact, sai that
expeditions at sea requiring preparations of long standing, and depending on
navigations which are uncertain, as well as on the concurrence of seasons, in places
which are often too distant for orders relative to their execution to be adapted to the
common vicissitudes of negotiations, which for the most part are subject to
disappointments and delays, and are always fluctuating and precarious: from whence it
necessarily results, that the nature ofsuch operations is by no means susceptible, without
prejudice to the party who employs them, of any other epochs than those which have
reference to the day of signing the treaty of peace.
460
Appendix I
The French Government took this to mean that the date of the treaty of peace
should be the epoch to fix the possessions of the two Powers, and delivered a
memorial of 19 April, insisting on the dates previously proposed by them. On
this, the British Government replied that they were ready to negotiate as to the
dates. The French envoy to London was furnished with 'extremely simple
instructions. '
The basis of them regarded the proposition Uti Possidetis and he was enjoined to demand
of the British Minister, whether the King of England accepted of the periods annexed to
the proposition of Status quo, and if His Britannic Majesty did not accept of them, what
new periods he proposed to France?8
The British proposal in reply was that]uly, September and November should
respectively be the periods for fixing the uti possidetis. So much difficulty arose
from this original proposal of uti possidetis, that it was ultimately replaced by a
series of mutual concessions of territory to take place in consequence of the
treaty which might be eventually concluded. In the preliminaries of peace
finally signed at Fontainebleau, 3 November, 1762, it was provided, for
instance, by Article 7 that Great Britain should restore the fortresses in
Guadeloupe, Mariegalante, Desirade, Martinique and Belle-Isle 9 in the same
condition as when they were conquered by the British arms, i.e. in statu quo, and
the French trading posts in India 'in the condition in which they now are,' i.e.
also in statu quo. 10 These stipulations were renewed in the definitive treaty of
peace of 10 February 1763.11
In stipulating for uti possidetis or for status quo, it is consequently ofthe utmost
importance to fix the date to which either expression is to relate.
When on the conclusion of a treaty of peace the belligerents agree mutually
to restore all their conquests, they are said to revert to the status quo ante belium. 12
In 181 3 Napoleon drafted instructions for his plenipotentiaries to the Congress
of Prague: 'Quant aux bases, n'en indiquer qu'un~ seule: l' Uti possidetis ante
bellum,' meaning by that the relative possessions of France and the continental
alliance before the invasion of Russia in 1812. 13
In May 1850 the French President, Prince Napoleon, demanded ofthe Porte
that the privileges accorded to the Latin Church by the treaty between Francis
I and Soliman should be upheld, without regard to those granted to the Greek
Church by various firmans. The Emperor Nicholas resented this action, and
addressed a letter to the Sultan Abdul Medjid in which he insisted on the
maintenance of the status quo with respect to the Holy Places, i.e. the
arrangements that had existed up to that time in virtue ofthe firmans. 14 This is
a case in which status quo has nothing to do with the state of territorial
possessIOn.
English writers ordinarily use the form status quo. Statu quo is the foreign
expression for the same thing.
13.
Ad referendum and Sub spe ratio When the sovereign whom a diplomatic agent
represents, or to whom he is accredited, dies, the mission ofthe agent is, strictly
speaking, at an end. During the interval which must elapse before he can
receive fresh credentials, he may carry on a negotiation which has already been
commenced, sub spe rati, i.e. in the expectation that what he promises will be
ratified by his sovereign. 15
A. Some definitions
46 I
It has also been said that when a proposal is made to an agent, and the case is
urgent and the distance from his own country is considerable, he may accept or
decline it sub spe ratio 16 But in these days, when telegraphic communication is
possible between capitals even the most distant from each other, a prudent
diplomatist will take care not to commit his government by a provisional
acceptance of what is not warranted by his previous instructions. The utmost
he will do will be to receive the proposal ad referendum. Sub spe rati maybe
explained to indicate that the agent is himself inclined to favour the proposal,
but there is no reason why he should compromise either himself or his
government.
14.
15.
16.
Casus belli and Casus foederis. These terms appear to be sometimes confused.
The former signifies an act or proceeding ofa provocative nature on the part
of one Power which, in the opinion of the offended Power,justifies it in making
or declaring war. Palmerston defined it in 1853 as 'a case which would justify
war.'I8
The latter is an offensive act or proceeding ofone state towards another, or
any occurrence bringing into existence the condition of things which entitles
the latter to call upon its ally to fulfil the undertakings of the alliance existing
between them, i.e. a case contemplated by the treaty of alliance.
At the Congress of Paris, 15 April 1856, the English, French and Austrian
plenipotentiaries signed a convention by which a reciprocal engagement was
entered into to regard as a casus belli any violation of the main treaty, and any
attempt, no matter from what quarter it might be made, on the independence
and integrity of the Ottoman Empire; it also fixed the naval and military
contingents to be mobilised in case this casus foederis should arise. 19
I,.
Demarche is defined by Littre as: 'Ce qu'on fait pour la reussite de quelque
chose,' and one of the examples he gives is: 'la demarche que l' Angleterre avait
462
Appendix I
faite du cote de Rome.' This 'something' may have been what in English might
be described as an offer, a suggestion, an advance, a demand, an attempt, a
proposal, a protestation, a remonstrance, a request, an overture, a warning, a
threat, a step, a measure - according to circumstances, and unless the
translator happens to know what the circumstances were under which the
demarche was made, he will be at a loss for a precise English equivalent.
18.
Cussy says:
'Cette locution, en usage dans les tribunaux, signifie les exceptions diverses qui forment
autant d'obstacles a ce que le juge saisi d'une instance puisse s'occuper, au moins
immediatement, de la connaissance et de l'appreciation de la demande; c'est un moyen
de droit prijudiciel, par lequel on repousse une action, sans qu'il soit necessaire
d'examiner le fond de la contestation. '21
This latter explanation corresponds better to the notion conveyed when the
expression is used to describe the diplomatic practice which consists in rejecting
an official complaint or demand without examining into the merits.
'Evasive reply' may be sometimes the best rendering.
19.
Prendre Acte. Donner Acte. The legal definition of acte is 'a declaration made
before a court, whether spontaneously or in consequence ofan order ofa court,
and which has been certified to have been made.' In diplomacy it is applied to
any document recording an international agreement by which an obligation is
undertaken; such as, for instance, the convention for the suspension of
hostilities of 23 April 1814, signed between France and the four allied Great
Powers. 2~ 'Instrument' is the proper English equivalent, though we sometimes
find it rendered by 'Act,'
Prendre acte is to declare that one will avail oneself, should the necessity arise,
of a declaration or admission made by the other party, without conceding that
one is in any way bound by that declaration. 'To take note or is perhaps the
English equivalent. Yet it may sometimes conveniently be rendered by
'recognise' or 'acknowledge.'
'Mais les sagesses tardives ne suffisent point; et meme quand elles veulent etre prudentes,
I'esprit politique manque aux nations qui ne sont pas exercees a faire elles-memes leurs
affaires et leur destinee. Dans le deplorable etat OU l'entreprise d'un egolsme heroique et
chimerique avait jete la France, il n'y avait evidemment qu'une conduite a tenir;
reconnaitre Louis XVIII, prendre acte de ses dispositions liberales et se concerter avec
lui pour traiter avec les etrangers. '23
to
Donner la main (in English, give the hand, German Oberhand) means to give the
463
seat of honour, i.e. on the right hand ofthe host or diplomatic agent receiving a
visit from a person of lower rank. The Elector Max Joseph of Bavaria was
reported in 1765 to have bestowed this mark of deference on the Imperial
Ambassador 'which certainly no crowned head in Europe would do. '24 In the
instructions to Lord Gower, on his appointment as Ambassador to Paris in
1790, he is directed to act in accordance with the Order in Council of 26
August 1668, and 'to take the hand of envoys' in his own house, i.e. to place
them on his left hand. 25 See also on this point 450 in the fourth edition of this
work.
21.
464
Appendix I
Europe' means the Ministries, in particular the Ministries for Foreign Afhlirs,
of the European countries.
In German, Kander is a Minister at the head ofa government department. It
may be used as an abbreviation of Reichskander, the Chief Minister. The
Minister's office is the Kandei. (Kanzel is, however, a pulpit.)
The Spanish canciller can be used for the official called chancelier in a French
embassy, and cancilleria for the office called chancery in English. But in some
Spanish-speaking countries the Minister for Foreign Affairs is still known by
the traditional title of Canciller, and his office, or that of his Ministry, is the
Cancilleria.
Consular invoices. As all goods exported by a country have not necessarily been
manufactured there, customs officials in the importing country may require
them to be accompanied by a certification of origin signed by the importing
country's consul in the exporting country. Such a certification is known as a
consular invoice.
Counsellor.
Secretary.
Free trade area. Two or more countries agreeing to the abolition of tariffs on
goods imported from each other, but not necessarily to the imposition of a
common tariff on imports from outside the area.
Hot line. Direct and constant communication by electronic teletype (not
telephone). Usually refers to heads of government.
465
Appendix 11
Conferences
(See 28.22.)
2.
The first meeting of the Council lasted for about a month, and was followed by
a second meeting - in June and part ofJuly. Opportunity was afforded to the
enemy countries to express their views, and in some cases their representatives
were heard at the Council table. In this way, the complete drafts of Peace
Treaties with each of the five countries were drawn up. The remaining Allied
Powers were then invited to a full-scale conference, also at the Luxembourg,
which started early in August and went on until late in October. However, this
46 7
conference was not empowered to take any final decisions: according to the
Rules of Procedure which it adopted as its opening act, it could only proceed on
the basis of the texts already drawn up by the Council of Foreign Ministers,
though of course it was open to any delegation to propose amendments, which
would then be carried or rejected by a majority vote. But even where carried,
these amendments did not of themselves cause the text as drawn up by the
Council of Foreign Ministers to be altered. Their status was simply that of
proposals for amendment made by the conference to the Council. The upshot
was that at the end of the Peace Conference in October, a considerable part of
the original texts as drawn up by the Council stood approved by the
Conference, while in respect of the rest, the Conference had adopted a series of
proposed amendments which the Council would now have to consider.
3.
The Peace Conference then came to an end and never reconvened, and the
remainder of the work was done by the Council of Foreign Ministers, meeting
for this purpose in New York from early November until January, the Foreign
Ministers themselves leaving about half-way through December. The meetings
took place in one of the Tower Rooms of the Waldorf Astoria Hotel. At these
meetings, the Foreign Ministers examined one by one the proposals for
amendment to the original text adopted by the Peace Conference and either
approved the amendment or rejected it, or possibly adopted some amendment
of their own, using the same apparatus ofDeputies and Committees, etc. By the
time the Foreign Ministers themselves left, complete and final texts had been
drawn up, subject to a comparison of the texts in the different languages
(French, English and Russian), in the course of which some further purely
drafting alterations were made.
4.
These final texts were then thrown open for signature in Paris. A short
signature ceremony took place then on 10 February 1947, and the texts were
signed by all the Allied Powers that had actually been at war with the five
countries concerned.
The procedure adopted for the conclusion of this Treaty was of an even more
unorthodox kind than in the case just considered. Some of the preparatory
work was done by a body sitting in Washington, consisting of representatives of
the principal countries that had been at war with Japan, and called the Far
Eastern Commission. However, the actual raison d' et re of this body was not the
conclusion ofa Peace Treaty, but the political supervision ofthe administration
ofJapan during the occupation period. The first actual drafts ofa Peace Treaty
were got out by diplomatic correspondence between the United States and
United Kingdom governments during the latter part of 1950 and the early part
of 195 I. There then followed a series of meetings between officials and
468
Appendix 11
Ministers of these two countries, some of which took place in Washington and
some in London, between April and August 1951, at which progressive
agreement was reached on the text of the Peace Treaty. Contact with other
prospective signatories was maintained, partly by diplomatic correspondence
conducted mainly through the State Department in Washington; partly by
meetings between the State Department and the Embassies ofsuch countries in
Washington; and partly by means ofsimilar meetings between these Embassies
and the British Embassy in Washington. In this way, the views of the different
countries on the proposed text were ascertained, and progressive alterations
were made in the texts to take account of these views. However, at no stage of
the proceedings was there any general negotiating conference at which views
could be exchanged across the table between all concerned.
6.
Eventually, in August, final texts ofa Treaty and various ancillary instruments
were circulated to all the prospective signatories, and they were invited to
attend a meeting at San Francisco which, it was emphasised, would be for the
purpose of signing the Peace Treaty and other instruments and of hearing any
accompanying declarations or speeches, but which was not intended to be a
forum for any negotiations or for proposing alterations in the existing texts.
,.
The San Francisco meeting was duly held in the first part ofSeptember 1951, in
the same buildings that had been utilised for the drafting ofthe United Nations
Charter. Objections to the procedure adopted were voiced by certain countries
which did not sign the Treaty. Apart from that, the Treaty and ancillary
instruments, as presented, were found to be acceptable, and were signed on
8 September by twenty-six Allied Powers that had been at warwithJapan, and
by Japan.
8.
469
conference, to which representatives of the United States, France, the United Kingdom,
the Union of Soviet Socialist Republics, the Chinese People's Republic and other
interested States will be invited.
It is understood that neither the invitation to, nor the holding of, the above-mentioned
Conference shall be deemed to imply diplomatic recognition in any case where it has not
already been accorded.
10.
The Conference was held in the Palais des Nations from 26 April to 21 July
1954. 2 It virtually became two conferences - one for the Korean question and
one for the problem ofrestoring peace in Indo-China. This division was natural
because, apart from the concern of the Four Powers and the People's Republic
of China in both problems, they were entirely separate and distinct.
11.
12.
The Indo-China phase of the Conference opened on 8 May 1954, a short time
after the French garrison at Dien Bien Phu fell to the onslaught of the Viet
Minh forces. The battle was the culmination of a nationalist and Communist
struggle to wrest the Associate States ofVietnam, Laos and Cambodia from the
status of protection which France had tried to re-establish after the Second
World War. At the time of the Conference, France had, in principle,
recognised the independence ofthe Associate States and the primary task ofthe
Conference was to put an end to hostilities so as to make possible a stable
political settlement. The result was the signature of three Agreements on the
cessation of hostilities in Cambodia, Laos and Vietnam, respectively signed in
each case by the appropriate military authorities. The conference contented
itself with a declaration which, inter alia, took note of the three Agreements.
Separate declarations were also made by the representatives of the United
States, Cambodia, Laos and France. 3
13.
Appendix l/
470
interesting. Ostensibly, the seating for the Korean phase followed the English
alphabetical order and for the Indo-China phase the French alphabetical
order, but the practical convenience of the arrangement in both cases is
apparent from the seating plans set out below:
Ch.urm.m
d.od \tarf
Luxem-
Austra
bourg
lia
Interpreter,
Nether-
lands
4
U Rued Kingdom
or Great Brilaln
Royaumc
un.
14.
There was no Secretariat for the Conference as a whole, but the sixteen nations
who had contributed military forces to the United Nations Command in Korea
formed their own Secretariat for the Korean phase of the Conference. A
47 1
At the first Plenary Meeting on Korea, Prince Wan made the usual polite
introductory remarks, read a telegram of greetings from the President of the
Swiss Confederation, and made the following announcements from the chair,
which in fact governed the procedure of the Conference:
The Conference will meet daily at 3 p.m. except on Sundays.
2. Delegates wishing to speak should inscribe their name with the Chairman, who
will call them in the order in which their names are received. The speakers' list will be
carried on from day to day.
3. The official languages of the Conference will be French, Russian, English, Chinese
and Korean. Each language will be used for a day at a time in the above order. Speeches
will be interpreted into the language of the day on the floor of the Conference and
concurrently into the other four official languages.
4. No observers or spectators will be permitted, and the Press will be excluded except
as the Conference itself decides. (On the first day Press photographers were admitted for
the first ten minutes.)
5. Each Delegation is free to conduct its own relations with the Press and official
communiques will only be issued if the Conference so decides.
I.
18.
Append ix III
United Nations
membership
Melllber states of the United Nations at
1 Novelllber 1977 1
The 147 member states of the United Nations, with the dates on which they
became members, are listed below:
Member
Afghanistan
Albania
Algeria
Angola
Argentina
Australia
Austria
Bahamas
Bahrain
Bangladesh
Barbados
Belgium
Benin 2
Bhutan
Bolivia
Botswana
Brazil
Bulgaria
Burma
Burundi
Byelorussia
Canada
Cape Verde
Central African Republic
Chad
Chile
China
Colombia
Comoros
Congo
Date of admission
19 Nov. 1946
14 Dec. 1955
8 Octo 1962
I Dec. 1976
24 Oct. 1945
1 Nov. 1945
14 Dec. 1955
18 Sept. 1973
2 I Sept. 197 I
17 Sept. 1974
9 Dec. 1966
27 Dec. 1945
20 Sept. I 960
21 Sept. 1971
14 Nov. 1945
17 Octo 1966
24 0c t. 1945
14 Dec. 1955
19 Apr. 1948
18 Sept. 1962
24 0c t. 1945
9 Nov. 1945
16 Sept. 1975
20 Sept. 1960
20 Sept. 1960
24 0c t. 1945
24 0c t. 1945
5 Nov. 1945
12 Nov. 1975
20 Sept. 1960
Member
Costa Rica
Cuba
Cyprus
Czechoslovakia
Democratic Kampuchea 3
Democratic Yemen
Denmark
Dominican Republic
Ecuador
Egypt 4
El Salvador
Equatorial Guinea
Ethiopia
Fiji
Finland
France
Gabon
Gambia
German Democratic Republic
Germany, Federal Republic of
Ghana
Greece
Grenada
Guatemala
Guinea
Guinea-Bissau
Guyana
Haiti
Honduras
Hungary
Iceland
India
Indonesia 5
Iran
Iraq
Ireland
Israel
Italy
Ivory Coast
Jamaica
Japan
Jordan
Kenya
Kuwait
Lao People's Democratic Republic ot6
Lebanon
Lesotho
Liberia
473
Date of admission
2 Nov. 1945
24 Get. 1945
20 Sept. 1960
24 Get. 1945
14 Dec. 1955
14 Dec. 1967
24 Gct. 1945
24 Get. 1945
21 Dec. 1945
24 Gct. 1945
24 Get. 1945
12 Nov. 1968
13 Nov. 1945
13 Gct. 1970
14 Dec. 1955
24 Get. 1945
20 Sept. 1960
2 I Sept. 1965
18 Sept. 1973
18 Sept. 1973
8 Mar. 1957
25 Gct. 1945
17 Sept. 1974
21 Nov. 1945
12 Dec. 1958
17 Sept. 1974
20 Sept. 1966
24 Get. 1945
17 Dec. 1945
14 Dec. 1955
19 Dec. 1946
30 Gct. 1945
28 Sept. 1950
24 Get. 1945
2 I Dec. 1945
14 Dec. 1955
I I May 1949
14 Dec. 1955
20 Sept. 1960
18 Sept. 1962
18 Dec. 1956
14 Dec. 1955
16 Dec. 1963
14 May 196 3
14 Dec. 1955
24 Get. 1945
17 Get. 1966
2 Nov. 1945
474
Appendix III
MelDber
Libya
Luxembourg
Madagascar
Malawi
Malaysia 7
Maldives
Mali
Malta
Mauritania
Mauritius
Mexico
Mongolia
Morocco
Mozambique
Nepal
Netherlands
New Zealand
Nicaragua
Niger
Nigeria
Norway
Oman
Pakistan
Panama
Papua New Guinea
Paraguay
Peru
Philippines
Poland
Portugal
Qatar
Romania
Rwanda
Samoa
Sao Tome and Principe
Saudi Arabia
Senegal
Seychelles
Sierra Leone
Singapore
Somalia
South Africa
Spain
Sri Lanka
Sudan
Surinam
Swaziland
Sweden
Date of admission
14 Dec. 1955
24 0c t. 1945
20 Sept. 1960
I Dec. 1964
I 7 Sept. 1957
2 I Sept. 1965
28 Sept. 1960
I Dec. 1964
27 Oct. 1961
24 Apr. 1968
7 Nov. 1945
270ct. 1961
12 Nov. 1956
16 Sept. 1975
14 Dec. 1955
10 Dec. 1945
24 0c t. 1945
24 0c t. 1945
20 Sept. 1960
7 Oct. 1960
27 Nov. 1945
7 0c t. 197 1
0
3 Sept. 1947
13 Nov. 1945
10 Oct. 1975
24 0c t. 1945
3 I Octo 1945
24 0c t. 1945
24 0c t. 1945
14 Dec. 1955
21 Sept. 1971
14 Dec. 1955
18 Sept. 1962
15 Dec. 1976
16 Sept. 1975
24 0c t. 1945
28 Sept. 1960
21 Sept. 1976
27 Sept. 196 I
2 I Sept. 1965
20 Sept. 1960
7 Nov. 1945
14 Dec. 1955
14 Dec. 1955
12 Nov. 1956
4 Dec. 1975
24 Sept. 1968
19 Nov. 1946
Melllber
Syria8
Thailand
Togo
Trinidad and Tobago
Tunisia
Turkey
Uganda
Ukraine
Union of Soviet Socialist Republics
United Arab Emirates
United Kingdom
United Republic of Cameroon
United Republic of Tanzania 9
United States
Upper Volta
Uruguay
Venezuela
Yemen
Yugoslavia
Zaire
Zambia
.November 1977
475
Date of acbnissioD
24 Dct. 1945
(resumed 13 Dct. 1961)
16 Dec. 1946
20 Sept. 1960
18 Sept. I 962
12 Nov. 1956
24 Dct. 1945
25 Dct. 1962
24 Dct. 1945
24 Dct. 1945
9 Dec. 197 1
24 Dct. 1945
20 Sept. 1960
14 Dec. 1961
24 Dct. 1945
20 Sept. 1960
18 Dec. 1945
15 Nov. 1945
30 Sept. 1947
24 Dct. 1945
20 Sept. I 960
I Dec. 1964
Appendix IV
Special ised agencies
Agency
International Bank
for Reconstruction
and Development
(IBRD or World Bank)
International
Civil Aviation
Organisation
(ICAO)
Specialised agencies
Head
quarters
Purpose
Structure
A biennial General
Conference; a Council (4 2
members with 4
Committees); Executive;
Director and Secretariat
Rome
To promote an international
flow ofcapital for productive
purposes and to finance
rebuilding after the Second
World War. Main objective
later became financing
projects which would aid
developing countries
President; Board of
Governors; 20 Executive
Directors
Washington
A triennial Assembly;
Council of 33; SecretaryGeneral and Secretariat
Montreal
477
NUtnberof
tnetnbers
12 9
478
Appendix IV
Agency
International
Development
Association
(IDA)
International Finance
Corporation (IFC)
International Labour
Organisation (ILO)
Intergovernmental
Maritime Consultative
Organisation (IMCO)
Specialised agencies
479
Headquarters
NUlnberof
Inelnbers
Purpose
Structure
To promote economic
development by providing
tinance to developing
countries on much more
favourable terms than
conventional loans,
especially for projects
which do not attract
private investment and
cannot service IBRD loans
Washington
116
To invest in enterprises,
private or partly
government, when private
capital is insufficient, and
to bring together
investment opportunities,
private capital and
experienced management
Washington
105
An annual Conference in
which each member has 4
delegates (2 government
representatives, I of
employers, I of workers);
A Governing Body: tripartite
(government, employers,
workers);
Director-General;
International
Labour Office: Regional
Conferences
Geneva
133
To facilitate cooperation in
technical matters and in
promoting safety of life at
sea. Consults with other
organisations on marine
aspects of matters with
which they deal
A biennial Assembly;
Council (24 members from
3 defined categories of
interest in shipping);
Secretary-General and
Secretariat
London
103
480
Appendix IV
Agency
International Monetary
Fund (IMF)
International
Telecommunications
Union (ITU)
United Nations
Educational, Scientific
and Cultural Organisation
(UNESCO)
Specialised agencies
481
Headquarters
NUlDberof
lDelDbers
Purpose
Structure
International monetary
cooperation to facilitate
trade, maintain high levels
of employment and real
income, promote exchange
stability and assist members
with temporary balance of
payments difficulties
without their being
compelled to resort to
measures inimical to
national or international
prosperity
Board of Governors; 20
Directors; Managing
Director and Chairman of
the Board of Directors
Washington
13 0
A five yearly
Plenipotentiary Conference;
Administrative Council of
36; Secretary-General and
Secretariat
Geneva
153
A biennial General
Conference; Executive
Board, increased between
1946 and 1972 from 24 to
40 (elected from five
geographical groupings).
Director-General and
Secretariat
Paris
142
Berne
15 6
482
Appendix / V
Agency
World Intellectual
Property Organisation
(WIPO)
World Meteorological
Organisation.
(WMO)
Specialised agencies
483
Headquarters
NUlIlber of
lIlelllbers
149
Purpose
Structure
An annual Assembly;
Executive Board of 30;
Director-General and
Secretariat
Geneva
A triennial General
Assembly, in which states
members ofWIPO and of
either the Paris or the
Berne Union are entitled
to participate;
Annual WIPO Conference;
Conference Committee of 3$
Director-General
Geneva
To promote international
cooperation in providing
and rapidly exchanging
meteorological information,
in standardising
observation and its
application to aviation,
shipping, etc
Geneva
73
(WIPO)
81
(Paris
Union)
65
(Berne
Union)
484
Appendix / V
International Atomic
Energy Agency (IAEA)
Specialised agencies
485
Headquarters
NUlDber of
lDelDbers
83
Purpose
Structure
Contracting Parties;
Council of Representatives
meeting between Contracting Parties' meetings;
CommiUee on Trade and
Development; International
Trade Centre (working
with UNCTAD). (See
37. I 0- I 2.) DirectorGeneral; Secretariat
Geneva
Vienna
plus
3
provisional
members
10
Appendix V
Commonwealth
membership
(A) Member countries of the Commonwealth (April 1977)
St Lucia;
St Vincent
Cook Islands;
Niue
Tokelau;
Ross Dependency.
Appendix VI
Special ised diplomacy
A proportion of diplomatic work is performed in many embassies and
high commissions by officials who are not career diplomats, but whose names
figure on the diplomatic list recognised by the government of the host country.
2. Even a statistical table based on data collected from all round the world
would be of uncertain value because of the constantly changing size and nature
of diplomatic staffs and the varying practice of different countries in
announcing, for publication in official lists, the precise qualifications and
assignations of individual members of their staffs. However, an approximate
estimate of the proportion of specially qualified professionals other than career
diplomats employed on the staff of diplomatic missions has been based on the
study of lists in London in the mid- I 970s.
3. Of the 2,000 or so officials on the diplomatic lists of 130 missions, it has
been estimated that about 380 were non-career diplomats, working in specialist
capacities. This last figure does not include attaches from the armed services, or
officials performing consular, passport or administrative functions, since all
these have long been regarded as essential members of a diplomatic staff.
However, commercial and information officers have been included among
specialists, since in the services of most countries (though not in the British
Service) such officers tend to be employed on loan or transfer from the
appropriate home department of the government. It must also be taken into
account that there may be a few diplomatic officers who have through practical
experience acquired the ability to occupy a position in one or other of the
specialist fields.
4. The rough breakdown of the total figure for specialists in the survey
was as follows:
Commercial
10 7
Economic and financial
59
Press and information
62
Culture
60
Agriculture
22
Education
18
Scientific and technical
14
Specialised commodities
10
Tourism
I I
Shipping
9
Medical, legal and other
professional representation - say
I.
488
Appendix VI
.Notes
489
Notes
Chapter
2.
(i) 'Most of these embassies would fall, so far as their ostensible object was concerned, into
the category which Mattingly [see footnote 4], following and adapting Bernard du Rosier,
calls "embassies of ceremony", to bring presents and letters of congratulation to a Prince
on accession or after conquests, to renew friendship, etc.'
(ii) 'At the same time, from a more practical standpoint, in most cases these embassies also
presumably fall into Mattingly's other category as "embassies of negotiation."
(Quoted from Foreign Relations of African States, ed. K. Ingham (London, 1974), 9,)
4- Mattingly Renaissance Diplomacy (London, 1955), Ch. I - 11.
5. Quoted by Garthoff in La doctrine militaire sovietique (Paris, 1956 ), 4.
6. This use of the expression first arose in Vienna about the middle of the eighteenth
century. (Ranke, cited by Holtzendorff, iii. 617.)
7 Chronicler of the Proceedings of the Congress of Vienna, 1814-15. (See bibliography.)
l
Chapter
A regent, or other acting head of state, is entitled to the status of head of state.
2. Cmnd 5081.
3. This applies equally to the husband of a female head of state.
4- In the case of Mighell v. Sultan of Johore the Sultan who, describing himself by the assumed
name of' Albert Baker' had promised to marry the plaintiff, succeeded in his plea that he was
as a sovereign ruler immune from the jurisdiction of the court in regard to an action for
breach of promise (1894) 1 QB. 149.
5 See 15.23.
6. See European Convention on State Immunity, Art. 9 (Cmnd 5081) and see below under
15. 1 3.
7 See 15.2 7.
8. 4 and 5 Geo. vi, c. 21.
I.
Chapter 3
I. In most countries the title of the minister who directs foreign relations is Minister for
Foreign Affairs, or of Foreign Relations. In the United Kingdom it is Secretary of State for
Foreign and Commonwealth Affairs. In the Union of Soviet Socialist Republics foreign
490
Notes
.Notes
491
Chapter 7
I. See 8.13.
2. de Maulde-Ia-Claviere, i. 80, 389.
3. Ibid., 209.
4. Garden, Histoire des Traites de Paix, v. 155 n.
5. F. de Martens, Recueil des Traitis etc., v. and ix. (x.).
6. J enkinson, iii. 342.
7. d'Angeberg, Le Congres de Vienne (1864)'
8. Stapleton, Political Life of the Rt. Hon. George Canning, iii. 265.
9. Moritz Busch, Graf Bismarck, 4th edn (1878), ii. 289.
10. For a more detailed account of the use of languages in the United Nations, see 36.65-70.
I I. E.g. 'C.E.E.' (French), 'E.E.C.' (English) for the European Community.
12. Trea~v Series, No. 45 (1930).
13. Parliamentary Paper, Mise., No. 7 (1925).
14.B.f:S.P., cxvi. 513-17.
15 B.F.S. P., xci, 175.
16. L'eloge du diplomate.
17. Lord Trevelyan has amusingly caricatured the abuse of diplomatic language in the
communiques issued after conferences to which the press have had no access. He makes the
following suggestions: ' "A frank exchange of views" = "nearly came to blows." "In the spirit
of brotherly solidarity" indicates that one side made clear to the other that it was becoming
too independent for its future comfort. "An atmosphere of cordiality" may mean that,
although one party was on the wrong side of the ideological fence, it was hoped that a little
flattery might induce it to do something in the other's interests.' Humphrey Trevelyan,
Diplomatic Channels (London, 1973), 9 I.
18. See also 23. I 3 and I 5.
19. Churchill, The Second World War, v.
20. Charles Thayer, Diplomat (London, 1960) pp. 105- 106.
21. B.F.S.P., cv. 366.
492
Notes
Chapter 8
I. See 21042. See 28.8.
3. A classic illustration of the importance of a clear definition of full powers and their
relation to the instructions given to the negotiator is afforded by the events which led to
Cardinal Richelieu's refusal to ratify the Treaty of Regensburg in 1630. His grounds for
refusal were that the two French representatives, whose full powers had been intended
apparently to apply only within the limits of their instructions, had gone far beyond what
they were authorised to do, and had thus placed their sovereign in an unacceptable position.
But it appeared that the Cardinal's thinking had changed with changed circumstances in the
three months between the initial despatch of the negotiators and the opening of the
discussions; and that the successive instructions he sent them proved more confusing than
helpful. For a detailed reconstruction of the whole story and its background, see' A cause celebre
in the history of treaty-making: The refusal to ratify the Peace Treaty of Regensburg in
1630', by D. P. O'Connell, in the BrIL, 1968, p. 71. Professor
O'Connell shows how this and other failures to ratify treaties in the first half of the
seventeenth century led to greatly intensified scrutiny of the credentials and full powers of
delegates to negotiations. 'Out of this caution,' he concludes, 'was born the modern
international law of ratification.' See also 28.8, 32.9, 32.13-15 and 32.18.
4. See 28.14
5 See Jenkinson, iii. 347.
6. Jenkinson, iii, 347.
2.
3.
4.
5.
6.
7.
8.
9.
Chapter 10
I.
,Notes
493
3. Deak, 'Classification etc. des agents diplomatiques', R.D. 1. L. C., (1928), 183, 185.
4 4 1.26-9.
5. Some of the ground of this and the following paragraphs is covered in greater detail by Garrett
Mattingly, Renaissance Diplomacy Chapter 5 onwards. See also Eileen Young, 'The development of
the law of diplomatic relations', B. r. I. L., (1964), 166-8.
6. Nys, Les Origines du Droit international, 312. There was a Venetian hailo there already in
1249, but not till after the conquest by the Turks did he come to have a diplomatic character
(Holtzendorff, iii. 613).
7 Schmelzing, ii. 115; de Martens-Geffcken, i. 59.
8. Krauske, 160.
9. Krauske, I 29
10. Nys, Droit International, ii. 345.
I I. Krauske, 163.
12. Krauske, 165, 174.
13. L'Intermediaire des Chercheurs of 13-30, August 1931, notes that the term 'ministre
plenipotentiaire' appears in the first edition of the Dictionnaire de l'Aeademie in 1694, and that
Richelet's Dictionary, which omits it from the first edition (1680), includes it in that of 1719,
with the note 'mot ecorche du latin,' which is taken to signify that grammarians did not
approve of it. Quotation is made from the Treaty of Munster (1648) 'congressus
plenipotentiariorum' and 'legati plenipotentiarii'; and of somewhat later seventeenth-century
instances of the French word - thus Cardinal Mazarin is 'Plenipotentiaire de S.M. TresChretienne' in the Treaty of the Pyrenees. Hatzfeld-Darmesteter gives as the first occurrence
that in Balzac's address to the Regent in 1615. (Notes and Queries, 12 September 1931.)
14. Holtzendorff, iii, 641.
15. Ferraris. Prompta Bihliotheca, Canonica, Juridica etc., iv. 1401 (quoted textually on page 168
of the Fourth Edition of the present work). See also Schmelzing, ii. 120.
16. See 9.7.
17. See 20.2.
18. Heffter, Das Europiiische Volkerrecht der Gegenwart, 7te Ausg., 428.
19. Almanach de Gotha.
Chapter 12
I. See 9.6.
2. Foster, Practice of Diplomacy, 31.
3. F. de Martens, Recueil des traites, etc., xiv, 415.
4. Schmalz, Europiiisches VOlkerrecht, 87, etc.
5. See 21.22.
6. Papers Relating to the Foreign Relations of the United States, (Washington, 1886).
7. Hall, 355 n.
8. See 17.13 and 14, which also deal with the relevant privileges and immunities.
9. Papers Relating to the Foreign Relations of the United States, (Washington 1868-9), i. 493, 60 I;
Foster op. cit., 49.
10. Foster, op. cit., 49, 50.
Chapter 13
I. See 28.7 and 8.
2. The diplomatic representatives of most countries are furnished with special passports,
known as 'diplomatic passports,' the purpose of which is to ensure that the status of their
holders is recognised and that they are shown the consideration to which they are entitled.
The British Government do not issue diplomatic passports.
3. See 18.
4. Garcia de la Vega, Guide Pratique des Agents Politiques, Paris, and Brussels, 18 73, p. 635.
5. Memoires et Souvenirs de M. le Comte de Segur (3rd edn), Vol. 2, p. 215.
6. Garcia de la Vega op. cit., p. 636.
7. de Castro y Casaleiz Guia Practica del Diplomatico t.spanol Madrid, 1886, Vol. 2, pp. 291-2.
8. See 21.3.
9. Giacomo Bologna, Noz<.e Busnelli-Ballarin, Schio ( 1884).
494
Notes
Chapter 14
Le Droit des Cens, IV. VII, Sect. 92.
De l'Esprit des Lois, xxvi, Ch. 2 I.
3. De Jure Be'lli ac Pacis, 11. XVIII. iv. 5.
4. Hurst, 'Les immunites diplomatiques,2 H.R. (1926), p. 123.
5. UN Legislative Series, Vol. 7, p. 4 19.
6. 26 A.].I.L. (1932) (Suppl.), 19.
7. For a summary of the debates and successive drafts of the International Law Commission
see rearbook of the /LC, 1957 and 1958.
8. Histoire des Franfais, xxv, p. 552.
9 Treaty Series, No. 17 (1902).
10. 7 Anne, c. 12.
11. McNair, International Law Opinions, Vol. I, p. 193.
12. Mew's Digest of English Law Cases, Vol. 2, p. 306; McNair, op. cit., Vol. I, p. 85.
13. The Observer, I I February 1973.
14. UN Legislative Series, Vol. 7, p. 375; 32 A.J.I.L. (193 8 ), 344 and Supp., 100. Frend et. al. v.
US, Annual Digest (1938-40), No. 161.
15. Tietz et al. v. People's Republic of Bulgaria, Weinmann v. Republic of Latvia, Bennett and Ball v.
People's Republic of Hungary, Cassirer and Ceheeb v. Japan, 28 I.L.R. 369, 385, 392, 396.
16. De Martens, Causes Celebres du Droit des Cens, Vol. I, p. 174.
17. Ibid., p. 326.
18. Hudson, International Legislation, Vol. 4, p. 2412.
19. ICJ Reports (1950), p. 266.
20. ICJ Reports, (1951), p. 7 I.
21. ILC rearbook (1957), Vol. I, p. 54.
22. By Brigadier-General Sir P. Sykes, p. 233.
23.3 Dominion Law Reports (1947), 618, Annual Digest (1946), No. 76.
'24. The Exterritoriality of Ambassadors in the Sixteenth and Seventeenth Centuries, p. 175.
'25. UK Treaty Series, No. 41 (1967), para. 261.
16. Art. 35.
27. The Times, 18-20, 23-25, 27 November 1964.
28. Perrenoud, 'Les restrictions cl la liberte de deplacement des diplomates,' 57 RGDIP, p. 444.
29. Hansard, HC Debates, Vol. 906, col. 133 (written answers).
I.
2.
Chapter 15
I. Tenekides, 'Droit international et communautes federales dans la Grece des cites,' 2 H.R.
(1956), p. 552; Coleman Phillipson, The International Law and Custom of Ancient Creece and Rome,
Vol. I, Ch. xiii.
2. Chatterjee, International Law and Inter-State Relations in Ancient India, London, 1958, p. 66.
3. e.g. Gentilis, De Legationibus Libri Tres (1585).
4. De Martens, Causes Celebres du Droit des Cens, Vol. I, p. 68.
5. Art. 2. Cmnd 6176.
6. Art. 2.
7. The Times, 7 April 1970 .
8. (1969), I W.L.R. 703, 2 All E.R. 707.
9 See .4. 14.
10. McNair, International Law Opinions, Vol. I, p. 186.
I I. De Martens, Causes Celebres du Droit des Cens, Vol. I, p. 83.
12. Ibid., p. 139.
13. UN" Legislative Series, Vol. 7, p. 201; Bynkershoek, De Foro Legatorum, Ch. IV.
14.7 Anne, c. 12.
15. Moore, Digest of International Law, Vol. 4, p. 662.
16. 1964, c. 81, S. 4.
17 14 RGDIP, p. 159
18. Eliz. 2, 1964, C. 81.
19. See Empson v. Smith (1966) I QB. 426, (1965); 2 All E.R. 881; 41 I.L.R. 407.
20. 121 E.R. 36; 2 E.&E. 94.
.Notes
495
Chapter 17
4 & 5 Eliz. 2 c. 2 I.
2. Service staff in the Vienna Convention does not refer to the Defence Attaches (generally
known in English as 'Service Attaches'), or to other Naval, Military, or Air Force members of
the mission.
3 UN Docs. CN 99, 1964, Treaties - 10; CN 93, 1968, Treaties - 10; CN 139, 1965,
Treaties - 11; CN 153, 1968 - Treaties - 14.
4 CN 354, 1975, Treaties - 8.
5. Advice from Assistant Attorney-General to Acting Legal Adviser of State Department, 67
A.J.I.L. (1973), 760 - 2.
6. Details of arrangements and agreements were published in the London Gazette of I October
1964, and amended on I September 1966 (by the removal of Hungary on termination of the
relevant arrangement).
7 The Exterritoriality of Ambassadors in the Sixteenth and Seventeenth Centuries, pp. 31 -2.
f.
Chapter 18
I. Ward, Law ofNations, p. 560.
2. 'De intercursu mercandisarum cum imperatore Russiae', Rymer, Foedera, Vol. 17, p. 506 .
3. International Law, Vol. I, p. 389.
4 Moore, Digest of International Law, Vol. 4, p. 557; Foster, Practice of Diplomacy p. 53.
5. UN Laws and Regulations regarding Diplomatic and Consular Privileges and Immunities
(UN Legislative Series Vol.. 7, p. 201).
6. (N.Y. 1839), 4 Sandf. 619.
7 (N.Y. 1889),4 N.Y. Suppl. 714.
8. 71 F. Suppl. 334; 170 F 2d 360; Annual Digest (1947), No. 73.
9 UN Doc.SII0816; RGDIP, (1974) p. 247.
10. (1971) 2 QB. 274; (1971) 2 All E.R. I I.
I I. Principes du Droit des Gens, Vol. I, p. 508.
12. Hall, p. 365.
13. Principes du Droit des Gens, p. 509.
14. Hurst, 'Immunites diplomatiques', 2 H.R. (1926), p. 235.
15. De Martens, Causes Celebres, Vol. I, p. 285.
496
.Notes
I,
p. 512.
Chapter 19
I. Cmnd 4300.
2. Chapter 2 sets out the privileges and immunities accorded under customary international
law to heads of state in foreign territory.
Chapter 20
I. See 11.3.
2. Vienna Convention on Diplomatic Relations, 1961, Arts. 13 and 16. See also 13-10.
3. Schmelzing, Vol. 2, p. 128.
4. Foreign Relations of the United States, cited by Foster, op. cit., p. 71.
5. One of the most up-to-date handbooks, in which almost every aspect of the subject
receives thorough and lucid treatment, is Diplomatic Ceremonial and Protocol, by John R. Wood
and Jean Serres, London (1970).
6. Schmelzing, Vol. 2, p. 126.
7. Schmelzing, Vol. 2, p. 227.
8. Stapleton, Political Life of the Rt. Hon. George Canning, Vol. I, p. 482.
9 De Martens-Geffcken, Vo!. I, p. 127.
10. De Martens-Geffcken, Vo!. I, p. 131, puts the order thus 4 3 I 2
I I. See 22.1, 10 and 12 and Arts 45 and 46 of the Vienna Convention on Diplomatic
Relations (1961). See also 26.7 and 14.
12. Callieres, 194.
13. Cambridge Modem History, Vol. 9, p. 269; Holland Rose, Lift of Napoleon I, Vo!. 2, p. 70.
14 Flassan, Vol. 3, p. 93
15. Camden, Annales Rer. Angl. Leyden, (1639), p. 734.
16. The story is reproduced by Wicquefort in L'Ambassadeur, nouv. edit., augm., (1730), Vo!.
2, p. 33, and Bk. 11, p. 99.
17. There is a well-known story that when Castlereagh, at Vienna in 1814, appeared in his
ordinary dress-coat with only the riband of the Garter among a crowd of foreign ambassadors
in full uniform and covered with orders, Talleyrand exclaimed, 'Ma foil C'est distingue!'
Croker, Correspondence and Diaries, Vo!. 3, p. 191, puts the scene at Chatillon.
185 V.S.C. 7342.
19 Villa-Vrrutia, Vol. 3, pp. 381 , 382, n.; pp. 448, 483.
20. Schmelzing, Vol. 2, p. 208.
21.]. Q Adams, Memoirs, Vol. 3, p. 827, cited by Foster, op. cit., p. 147.
22. Mirruss, Europiiisches Gesandschaftsrecht, p. 200.
23. Flassan, Vo!. 6, p. 560.
24. Hertslet, Old Foreign Office, pp. 174-6.
Chapter 21
Cmnd 4300.
See 8.7.
See 15. 17.
Vienna Convention on Diplomatic Relations 1961 , Art. 39(3).
See 165
6. The Times, 8 May 1958.
7 The Times, 17 June 1976 .
8. See 9.23.
9. See 9.13-18; 20.9-10; and the Vienna Convention on Diplomatic Relations, Art. 16(2).
10. See 9.23 and 30.
11. Annales Rerum Anglicarum et Hibernicarum, regnante Elizabetha, trans. by R. N. Gent, London,
3 rd edn, ( 16 35), pp. 263-4.
12.J. B. Moore, A Digest of International Law, Washington (1906), Vo!. 4, pp. 485, 489.
I.
2.
3
4
5
.Notes
497
Chapter 23
I. Mr Shen P'ing, who was appointed in 1975 Director of the Chinese Foreign Ministry's Asian
Affairs Department.
2. See 7.35.
3. It is a not uncommon and very mortifying experience for a mission to learn from a written
or broadcast comment from home that 'Our Embassy was taken entirely by surprise': so,
presumably, was the previous national government.
4. The question whether this immediate request should be made 'on instructions' or on the
responsibility of the head of mission may well depend on the possibility of immediate
telephone communication between the head of mission and his own foreign ministry; if there
is any doubt about this at all, immediate action by the head of mission is desirable.
Chapter 24
I. Sources include Political Kidnappings, Committee on Internal Security, US House of
Representatives, 93rd Congress, I August 1973, and Professor Carl Edler Baumann, The
Diplomatic Kidnappings The Hague, (1973).
2. Op. cit.
3. The nature of the dilemma in which German public opinion and the German authorities
themselves had been placed by the activities of violent revolutionaries is described by Melvin
J. Lasky in 'Ulrike Meinhof and the Baader-Meinhof gang,' Encounter (June 1975).
4 See 14. 15.
5. The Tokyo Convention on Offences and Certain Other Acts committed on board
498
.Notes
Aircraft, 14 September 1963, which came into force on 4 December 1969. (Cmnd 4230.)
The Hague Convention for the Suppression of Unlawful Seizure of Aircraft, 16 December 1970,
(Cmnd 4577), came into force on 14 October 1971 and was republished as Cmnd 4956.
The Montreal Convention for the Suppression of Unlawful Acts against the safety of
Civil Aviation, 23 September 1971, came into force on 26January 1973. (Cmnd 5524.)
6. This desire was intensified by the kidnappings of Mr Laporte and Mr Cross in Canada.
(See 24.5.) A fascinating account of this episode, with all the complexities of a situation in
which a Federal Government and a State Government were dealing simultaneously with
more than one terrorist group, will be found in Baumann, op. cit., Ch. VII, I I 1-38.
7. Cmnd 61 76.
8. Published in the UK Mise. series (Cmnd 7031) pending receipt of the necessary ratifications
to bring it into force.
Chapter 25
Julian Hale, Radio Power (London, 1975), 62.
The Goebbels Diaries (New York, 1946), 13.
3 See Thomas Grandin, The Political Use of the Radio, Geneva Studies, x. No. 3 (1939).
4. Quoted by Hale from John B. Whitton and Arthur Larson, Propaganda: towards
Disarmament in the War of Words (New York, 1959).
5. Quoted in a lecture, 'Why external broadcasting?' by Gerald Mansell, Managing
Director, BBC. External Service, 1976.
6. Wilton Wynn, Nasser of Egypt; the Search for Dignity (Cambridge, Mass., 1959).
7. Op. cit.
8. Final Act, Helsinki Conference, 1975.
9. It is to be hoped that they will not often have to go so far as a certain ambassador of recent years
who, on hearing intolerable disparagement of his country in a broadcast by the local dictator,
is said to have driven immediately to the studios and to have interrupted the discourse by making
his protest there and then.
I.
2.
Chapter 26
I. Vienna Convention on Consular Relations, 1963. Cmnd 5219.
2. United States' practice is an exception.
3 Arts. 27 and 53
4 Vienna Convention on Consular Relations, 1963, Art. 64.
Chapter 27
I. Paris, 11 December 1967. European Treaty Series 61.
2. See 41.31-33.
3. Lockhart, Memoirs of a British Agent. London, 1932.
4 New York Times, 26 July 1955.
5. New York Times, 11 January 1963.
Chapter 28
I. Permanent organisations having their own standing arrangements and rules ofprocedure, such
as the United Nations and the Special Agencies, are treated as a separate subject in Book V. Crossreferences to that Book have therefore been kept to a minimum.
2. The Universal Postal Convention, however, continues to be revised periodically at
congresses of the states forming the Universal Postal Union.
3. See 8.8.
4 See ]6.65-9'
5. See 8.10.
6. Basdevant, 'La conclusion et la redaction des traites,' 5 H. R. (1926), p. 629.
7. History of the Peace Coriference of Paris, Vol. I, p. 247.
8. See Appendix 11.
9. See 316.
Notes
499
Chapter 29
I. Cmnd 4818, Art. 2(1) (a). The Convention has not yet formally entered into force. As of31
December 1977, thirty-one states had deposited instruments of ratification or accession with the
Secretary-General of the United Nations: Article 84 of the Convention stipulates that it will enter
into force on the thirtieth day following the receipt ofthe thirty-fifth instrument of ratification or
accession. The fact that the Convention has not yet formally entered into force does not materially
affect its significance, since it may in many (though not in all) respects be taken as an exercise in the
codification of existing customary international law: see Sinclair, The Vienna Convention on the Law of
Treaties (1973), Ch. I for a brief analysis of how far particular Convention provisions represent
progressive development of international law rather than codification. The International Court of
Justice has already held (in its Advisory Opinion in the Namibia case) that the rules laid down in the
Convention concerning termination of a treaty relationship on account of breach 'may in many
respects be considered as a codification of existing customary law;' and (in the Fisheries Jurisdiction
case) has made an identical pronouncement with respect to Art. 62 of the Convention which deals
with the question of termination ofa treaty relationship on account ofchange ofcircumstances. See
3349-3353
2. Law of Treaties (1961), p. 2.
3 Introduction au droit des Traites (1972), p. 40.
4. A resolution adopted by the Vienna Conference on the Law of Treaties recommended to
the United Nations General Assembly that it refer to the International Law Commission the
study, in consultation with the principal international organisations, of the question of treaties
concluded between states and international organisations or between two or more
international organisations. This study has now been put in hand: see Reports of the
International Law Commission covering its 1974, 1975 and 1977 sessions (A/961O/Rev. I,
A/wow/Rev. I, and A/32/1O respectively)
5. Reports of the International Law Commission on its 17th and 18th sessions (1966): A/6309/Rev. I
(hereinafter cited as 1966 /LC Report), p. 22.
6. Op. cit., p. 7.
7 PCIJ Series A/B, No. 53, p. 7 1.
8. ICJ Reports (1974), p. 267. Earlier, the Court had affirmed that 'declarations made by way
of unilateral acts, concerning legal or factual situations, may have the effect of creating legal
obligations;' and that 'an undertaking of this kind, if given publicly, and with an intent to be
bound, even though not made within the context of international negotiations, is binding.'
(Loc. cit.) It would appear that an oral statement of this nature must be construed in
accordance with the precise meaning of the original language version in which it has been
expressed. The Court indicated that the precise nature and limits of the obligation
undertaken by the French Government 'must be understood in accordance with the actual
terms in which [they have] been publicly expressed'. (Loc. cit.)
9. McNair, op. cit., pp. 4-5
10. See Mann, Studies in International Law (1973) pp. 140-255. Of particular interest in this
context is the ruling of Arbitrator Cassin in the Diverted Cargoes arbitration between the
United Kingdom and Greece. The question at issue was which rate of exchange (the rate on
the day on which the debt arose, or the rate on the day of payment) should be used to
calculate the sterling amount to be credited to Greece under the terms of an agreement of
1942 between the United Kin~dom and Greek Governments for the settlement of claims
arising from the diversion of Greek cargoes by UK forces during the Second World War. The
arbitrator. although holding that the 1942 agreement was 'unquestionably governed by
International law' and not by the internal law of one or other of the states concerned, was
nevertheless constrained to found his award on reasoning derived from analogies with rules of
comparative municipal law. For the text of the award, see Reports of International Arbitral
Awards, VoI. 12, pp. 53-81; see also Mann, op. cit., pp. 166-75.
11. At the Vienna Conference on the Law of Treaties, the United Kingdom representative
maintained that 'many agreed minutes arid memoranda of understanding were not
international agreements subject to the law of treaties, because the parties had not intended
to create legal rights or obligations, or a legal relationship, between themselves.' He also
pointed out that 'international practice had consistently upheld the distinction between
international agreements properly so-called, where the parties intended to create rights and
obligations, and declarations and other similar instruments simply setting out policy objectives
or aRreed views.' Official Records, Second Session (1969), p. 228.
500
Notes
PCI], Series A/B, No. 4 1, p. 4713 'Harvard Research,' 29 A.J. I.L. (1935), p. 712.
14 Myers, 'The names and scope of treaties,' 51 A.].I.L. (1957), pp. 575-605.
15. Cmnd 6198.
16. The Prime Minister of the United Kingdom (Mr Harold Wilson) in his speech at
the CSCE in Helsinki on 30 July 1975, specifically stated that 'the Final Act of this
Conference is not a treaty; nor is it a peace settlement'. (Cmnd 6197.)
17. Other examples of instruments which are not intended to embody legally
binding obligations are: (a) the conclusions of the 1943 Cairo Conference; (b) the Potsdam
Protocol of 2 August 194$ (e) the so-called 'gentlemen's agreement' of 1946 on the
distribution of non-permanent member states on the Security Council; and (d) the so-called
'Luxembourg agreement' of 1966 on voting procedure in the EEC Council of Ministers. On
the whole question of non-binding agreements, see Munch in 29 Z.a.o.R. V., (1969), pp. 1-11.
18. Treaty Series, No. 56 (1949), Cmd 7789.
19. Treaty Series, No. 2 (1973), Cmnd 5189.
20. Treaty Series, No. I (1973) - Part 11, Cmnd 5179-1 I.
21. Ibid.
22. Treaty Series, No. I (1973) - Part I, Cmnd 5179-1.
23.51 A.].I.L. (1957), p. 579. While this may be true on a quantitative analysis of the
12.
various international agreements registered with the Secretary-General of the United Nations,
the fact remains that the 'treaty' form is still used for international agreements of a
particularly significant nature. Recent examples are the Treaty Banning Nuclear Weapon
Tests in the Atmosphere, in Outer Space and Under Water of 5 August 1963 (Treaty Series,
No. 3 (1964), Cmnd 2245), the Treaty on the Non-Proliferation of Nuclear Weapons of I July
1968 (Treaty Series No. 88 (1970), Cmnd 4474), the Treaty for the Prohibition of Nuclear
Weapons in Latin America of 14 February 1967 (Treaty Series, No. 54 (1970), Cmnd 4409)
and the Treaty on Principles governing the Activities of States in the Exploration and use of
Outer Space, including the Moon and Other Celestial Bodies of 27 January 1967 (Treaty
Series, No. 10 (1968), Cmnd 3519).
24. Treaty Series, No. 67 (1972), Cmnd 5008.
25 Treaty Series, No. 73 (1947), Cmd 72 I 7
26. Treaty Series, No. 68 (1970), Cmnd 4438.
27 Treaty Series, No. 75 (197 1), Cmnd 4790.
28. This order is, however, by no means sacrosanct. The definitions article (if any) is
sometimes relegated to the end; and, where the treaty sets up an organisation or mechanism
to ensure effective execution of its provisions, the organisational or mechanical provisions may
precede the more specific substantive provisions.
29. Treaty Series, No. 50 (1948), Cmd 748 1.
30. Treaty Series, No. 33 (1952), Cmd 860 I.
31. Treaty Series, No. 63 (1957), Cmnd 265.
32. Treaty Series, No. 79 (1971), Cmnd 4828.
33. Treaty Series, No. 4 (1972), Cmnd 4 850.
34 Treaty Series, No. 35 (197 2), Cmnd 4937
35. Occasionally, one may come across a treaty which is in 'mixed' form. Thus, the Treaty of
Versailles of 28 June 1919 is expressed to be concluded between the 'Principal Allies and
Associated Powers' and Germany, but the High Contracting Parties (on the Allied side) are
the various Heads of State 'represented' by certain Ministers and Ambassadors. This formula
was probably chosen for the purpose of enabling the British self-governing Dominions and
India to participate separately in the Peace Treaty without raising what would have been
regarded at that time as difficult questions of their treaty-making capacity; see McNair, op.
cit., p. 16.
36. That is to say, the Convention on the Territorial Sea and the Contiguous Zone, the
Convention on the High Seas, the Convention on Fishing and Conservation of the Living
Resources of the High Seas, and the Convention on the High Seas, all of 29 April 1958; the texts of
these four conventions can be found in Mise., No. 15 (1958), Cmnd 584.
37 Treaty Series, No. 19 (1965) Cmnd 256 5.
38. Treaty Series, No. 14 (1973), Cmnd 5219.
39 Mise., No. 19 (1971), Cmnd 4818.
40. The Convention was adopted by the United Nations General Assembly in Resolution
.Notes
501
2530 (XXIV) of 8 December 1969. For the text of the Resolution, to which the Convention is
annexed, see Official Records of the General Assembly, Twenty-fourth Session, Supplement No. 30
(A/7630); or Mise. No. 3 (1970), Cmnd 4300.
41. The Convention was adopted by the United Nations General Assembly in Resolution
3166 (XXVIII) of 14 December 197$ for text, see Official Records of the General Assembly,
Twenty-eighth Session, Supplement No. 30 (A/9030); or Mise., No. 19 (1975), Cmnd 6176.
4 2 . Treaty Series, No. 39 (1972), Cmnd 4956.
43. Treaty Series, No. 10 (1974), Cmnd 5524.
44. Loc. cit., p. 583.
45. Treaty Series, No. 3 (1955), Cmd 93 6 3.
46. Treaty Series, No. 15 (1974), Cmnd 5552.
47. Treaty Series, No. 35 (1974), Cmnd 561 5.
48. Treaty Series, No. 58 (1974), Cmnd 5778.
49 Treaty Series, No. 4 (1973), Cmnd 5204.
50. Treaty Series, No. 6 (1973), Cmnd 5193.
51. Treaty Series, No. 7 (1973), Cmnd 5192.
52. Treaty Series, No. 15 (1973), Cmnd 5198.
53 Treaty Series, No. 23 (1973), Cmnd 522 I.
54. Treaty Series, No. 53 (1973), Cmnd 5306 .
55. Treaty Series, No. 70 (1973), Cmnd 5335
56. Treaty Series, No. 99 (1973), Cmnd 5433
57. Myers, loco cit., p. 589.
58. See 29-4
59. Myers, loco cit., p. 586 .
60. See especially Chapters 4, 13, 20, 44
61. Treaty Series, No. 125 (1973), Cmnd 5496.
62. Treaty Series, No. I 18 (1973), Cmnd 5454.
63. Treaty Series, No. 104 (1973), Cmnd 5426.
64 Treaty Series, No. 107 (1973), Cmnd 5437.
65 Treaty Series, No. 160 (1975), Cmnd 6396.
66. United Nations Treaty Series (UNT..~J, Vol. 258, p. 39 2.
67. l ~ /\fTS, Vol. 588, p. 290.
68. British and Foreign State Papers (BFSPj, Vol. 90, p. 1049.
69 Ibid., Vol. 114, p. 875.
70 . CI\fTS, Vol. 67 1, p. 57.
71. BJ<:~'P, Vol. 86, p. 543.
72. Treaty Series, No. 81 (1965), Cmnd 2777.
73 Treaty Series, No. 14 (1954), Cmd 9071.
74. Treaty Series, No. 4 (1925), Cmd 2312.
75 See 32.3 and 32.11.
76. International Law (8th edn, (1955), Vol. I, p. 899.
77 BJ<:.,P, Vol. 46, p. 63.
78. Loc. cit.
79. BFSP, Vol. 58, p. 16.
80. Ibid., Vol. 104, p. 242.
81. Treaty Series, No. 29 (1923), Cmd 1994.
82. Treaty Series, No. 27 (1g63), Cmnd 2025.
83. rearbook of the United Nations (1946-7), p. I.
84. Such as the conferences which took place at Yalta and Potsdam in 1945.
85 McNair. op. cit., p. 23, n. 2.
86. Op. cit., p. 872.
87. Ibid.
88. Treaty Series, No. 1(1973), Cmnd 5179- 1, p. 275.
89. On the Court ofJustice, on the Sovereign Base Areas in Cyprus, on the fisheries sector, on
the development of trade relations with Ceylon, India, Malaysia, Pakistan and Singapore,
and on the free movement of workers.
90. On the application of the Treaty of Accession to Berlin.
9 1. Including a unilateral Declaration by the United Kingdom Government on the definition
of the term 'nationals.'
502
Notes
,Notes
503
2.
Chapter 31
I.
Tlfa~)' Se/if.l, No. I (1973)-Part I, Cmnd 5179-1.
2. See Art. 158 of the Act of Accession.
504
Notes
3. For a fuller explanation of the legal background, see Puissochet, L 'Elargissement des
Communautes Europeennes (1974), pp. 3 1-5.
4. Hudson, International Legislation, Vol. 8, p. 563.
5. 39 A.J.I.L. (1945); Supplement, p. 108: it may be noted that the Act of Chapultepec
consists in substance of a Declaration and Recommendation, together to be known by the
name of 'Act of Chapultepec'. See 42. 124.
6. BFSP, Vol. 76, p. 4.
7. Ibid., Vol. 81, p. 1058.
8. Ibid., Vol. 82, p. 55.
9. Ibid., Vol. 99, p. 141: this is sometimes popularly referred to as the 'Act of Algeciras'.
10. Ibid., Vol. 130, p. 878.
I I. UNTS, Vol. 71, p. 101.
12. The Court did not feel itself called upon to pronounce on the issue of jurisdiction, holding
that, having regard to certain circumstances set out in the judgment, the claims of Australia
and New Zealand no longer had any object. But the joint dissenting opinion of Judges
Onyeama, Dillard, Jimenez de Arechaga and Sir Humphrey Waldock contains a full
description and analysis of the jurisdictional provisions of the 1928 General Act and its
relationship to the Revised General Act: IC] Reports (1974), pp. 253-74 (Australia v. France),
and 457-78 (New Zealand v. France), the joint dissenting opinion being found at pp. 312-71
and 494-523, respectively.
13. Aegean Sea Continental Shelf case (Request for the indication of interim measures
of protection: IC] Reports (1976), pp. 1-40.
14. Pearce Higgins, The Hague Peace Conferences (1909), p. 41.
15. Sir J. Pauncefote to the Marquess of Salisbury, 31 July 1899: Pari. papers,' Mise., No. I
(1899), p. 27 8.
16. Mise., No. 19 (1g64), Cmnd 2415. This covered the Convention relating to a Uniform
Law on the International Sale of Goods and the Convention relating to a Uniform Law on
the Formation of Contracts for the International Sale of Goods.
17. Mise., No. 6 (1973), Cmnd 5225. This covered draft conventions concerning (a) the
International Administration of the Estates of Deceased Persons, (b) the Law applicable to
Products Liability and (c) the Recognition and Enforcement of Decisions relating to Maintainance Obligations.
18. Mise., No. 54 (1972), Cmnd 5169.
19. Treaty Series, No. 38 (1933), Cmd 4449.
20. See the interesting discussion by Briggs, 'The Final Act of the London Conference on Germany,'
49 AJ.I.L. (1955) pp. 148 - 65, especially at pp. 149-52.
21. UNTS, Vol. 37, p. 223
22. Treaty Series, No. 19 (1930) Cmd 3552. See also the Temporary Fisheries Agreement
between the Government of the United Kingdom and of the Union of Soviet Socialist
Republics signed at London on 22 May 1930 - Treaty Series, No. 22 (1930), Cmd 3583.
23. Treaty Series, No. 122 (1973), Cmnd 54 84.
24.IC] Reports (1974), p. 18.
25. Treaty Series, No. 103 (195 I), Cmd &4:l2. Note also that the North Sea Continental Shelf cases
(Netherlands v. Federal Republic of Germarry, Denmark v Federal Republic of Germarry) were referred
to the ICJ by Special Agreements: see ICJ, North Sea Continental Shelf Pleadings (1g68), Vol. I,
pp. 6-9
26. This refers to the written pleadings of the parties.
27. Text as published in Pearce Higgins, The Hague Peace Conference (1909), p. 137.
28. General Assembly Resolution 1262 (XIII) of 14 November 1958.
29. Treaty Series, No. 137 (1975), Cmnd 6280.
30. Mise., No. 17 (1965), Cmnd 2682.
31. Mise., No. 23 (1971), Cmnd 4781.
32. BFSP, Vol. 95, p. 759
33. Pursuant to the Agreement for Arbitration (Compromiso) of I April 1965, the Court of
Arbitration constituted by that Agreement (whose President was Lord McNair) delivered its
report to the United Kingdom Government on 24 November 1966. The formal Award was
promulgated by Her Majesty on 9 December 1966 For the text of the Award and report, see
Report of International Arbitral Awards, Vol. 16, p. 109. The Award of Her Majesty
in the Beagle Channel case was promulgated on 18 April 1977: for the text ofthe Award and the
Notes
505
report and decision of the Court of Arbitration (whose President was Sir Gerald Fitzmaurice), see
Award of Her Britannic Majesty's Government pursuant to the Agreement for Arbitration (Compromiso)
of a Controversy between the Argentine Republic and the Republic of Chile concerning the region of the
Beagle Channel, published by HMSO in 1977. See 38.32.
34. Treaty Series, No. 20 (1955), Cmd. 9425.
35. Treaty Series, No. 65 (1954), Cmd. 9272. This was the famous Buraimi arbitration where
the Tribunal became disrupted as a result of serious allegations of improper conduct on the
part of the Saudi Arabian member of the Tribunal: see Simpson and Fox, International
Arbitration (1959), pp. 162-3, 253 and 288, n. 85.
Chapter 32
Vienna Convention on the Law of Treaties (Art. I I).
See Chapter 29. 9, also 32. I 7, 18.
3. Ibid.
4. Vienna Convention on the Law of Treaties (Art. 12(2) (b) ).
5. 1966 /LC Reports, p. 29
6. There are, however, exceptions to this rule. For example, the Agreement regarding the
Status of Forces of Parties to the North Atlantic Treaty (Treaty Series, No. 3 (1955) ) was
signed in London on 19 June 1951, but was deposited in the archives of the United States
Government (presumably because the United States Government was the depository of the
North Atlantic Treaty itself). Multilateral agreements which adopt the 'triple depository'
technique may also constitute an exception to the general rule. Thus, the Hague Convention
for the Suppression of Unlawful Seizure of Aircraft was originally opened for signature at The
Hague by states which had participated in the conference at which the convention had been
negotiated. The Governments of the USSR, United Kingdom and the United States were,
however, designated as the Depository Governments, and the Convention remained open for
signature by all states in Moscow, London and Washington, respectively, after the expiry of
the short period stipulated for signature at The Hague. (Treaty Series, No. 39 (1972) (Art. 13).)
A parallel provision will be found in the Montreal Convention for the Suppression of
Unlawful Acts against the Safety of Civil Aviation. (Treaty Series, No. 10 (1974) (Art. 15,)
7. Art. 77 of the Vienna Convention on the Law of Treaties sets out in general terms the
functions of a depository of a treaty 'unless otherwise provided in the treaty or agreed by the
contracting States.'
8. Practice, of course, varies widely as regards the precise form of an instrument of
ratification. For examples from other countries, notably Australia, Cyprus and the
Philippines, see The Treaty Makers Handbook, pp. 57-8.
9. This is popularly known as the 'Ponsonby rule'; it derives from a statement made by the
then Parliamentary Under-Secretary of State in 1924. See 5 B.Y.I.L. (1924), p. 190, and
McNair, Law of Treaties (1961 ), pp. 99, 190.
10. McNair, op. cit., pp. 129-30.
11. Ibid., pp. 133-4.
12. An example of express provision to the contrary is provided by Protocol 3 to the Universal
Copyright Convention signed at Geneva on 6 September 1952 which stipulates that 'any
State party hereto may, on depositing its instrument of ratification or acceptance of or
accession to the Convention, notify the Director-General of UNESCO that that instrument
shall not take effect for the purposes of Article IX of the Convention until any other State
named in such ratification shall have deposited its instrument.' (Treaty Series, No. 66 (1957),
Cmnd 289.)
13. 1966 /LC Reports, p. 30; see also the judgment of Sir William Scott (later Lord Stowell) in
the Eliza Ann (1813) I Dods. 244 at p. 248, and Mervyn Jones, Full Powers and Ratification
(1946), pp. 12-20 and 74-90.
14. PCI], Series A, No. 23, p. 20.
15 Fitzmaurice, 15 B.Y.I.L. (1934), p. 129; Blix, 30 B.Y.I.L. (1953), p. 380 .
16. Art. 12, 14 and 15; see also Sinclair, The Vienna Convention on the Law of Treaties (1973),
pp. 36- 8.
17. PC/], Series A, No. 2, p. 57.
18. Op. cit., p. 135.
19. For example, the then French Government failed to obtain in 1954 the necessary
I.
2.
506
,'Votes
.Notes
507
47. A similar provision will be found in Art. 10 of the International Convention for the Safety
of Life at Sea signed in London on 17 June 1960: Treaty Series, No. 65 (1965), Cmnd 28 I 2.
48. See Liang in 44 A.J.I.L. (1950), pp. 342-9.
49. Liang, loco cit., p. 346.
50. 1966 /Le Reports, p. 31.
Chapter 33
I. Art. 2(1) (d).
2. United Nations Conference on the Law of Treaties, Official Records, First Session, p. 34.
3. Law of Treaties (1961), pp. 160-1.
4. Treaty Series, No. 10 (1961), Cmnd 1298.
5. Conventions and Agreements concluded within the Council of Europe and which concern the European
Committee on Legal Cooperation, (1974), p. 23: the United Kingdom Government have neither
508
,Notes
Bank for Reconstruction and Development contain a similar provision. (Art. VI, Sect. I.)
No. 31 (1974) Cmnd 5613.
No. 10 (1974), Cmnd 5524.
No. 3 (1964), Cmnd 2245.
No. 88 (1970), Cmnd 4474. For other examples of withdrawal and
denunciation clauses of various types, see The Treary-Maker's Handbook, (1973), pp. 104-14.
42. Art. 54(b) of the Vienna Convention on the Law of Treaties.
43 0 P cit., pp. 493-4
44 O p. cit., p. 504.
45. Brierly, The Law of Nations (6th edn, 1963), p. 331; see also Detter, Essays on the Law of
Treaties (1967), p. 87.
46. For a history of the matter, see 1966 /LC Reports, p. 79.
47. Multilateral Treaties in Respect of which the Secretary-General Performs depositary Functions, list of
signatures, etc. as at 31 December 1974, p. 43 6 , n. 3.
48. Ibid. For a fuller analysis of the controversy see Bardonnet, 'La Denonciation par le
38 . Treary Series,
39. Treary Series,
40. Treary Series,
41. Treary Series,
Notes
509
Court's invocation of Art. 60(3) (a) of the Vienna Convention quite misplaced since, in his
view, the South African attitude was in no sense equivalent to a disavowal of the Mandate,
loco cit., p. 300. See also Briggs, 'Unilateral denunciation of treaties: The Vienna Convention
and the International Court of Justice', 68 AJ.I.L. (1974), pp. 5 1- 68 .
65 IC]. Reports (1972), p. 46.
66. Ibid., p. 67.
67. Art. 61(2).
68.1966 ILC Reports, p. 84.
69. PCI], Series A/B, No. 146, pp. 155-8.
70. Ibid., p. 157.
71. Ibid., p. 158.
72 IC] Reports (1973), p. 3.
73. Ibid., p. 18.
74 Ibid., p. 19
75. Ibid., p. 20.
76. Ibid., p. 21.
77. Ibid., p. 21.
78. Note by the Secretariat and Regulations to give effect to Article 102 of the Charter of the
United Nations, adopted by the General Assembly on 14 December, 1946 (UNTS., Vol. I,
p. xvi).
Chapter 34
Lord Strang, British Permanent Under-Secretary of State for Foreign Affairs from 1949 to
1953, has this interesting comment: 'The policy of the balance of power may at some stage in
the 1815-1914 period have become a misguided policy through becoming difficult to realise....
Less work was done in those days by foreign ministries and diplomatists than ought to have
been done, and the work that was done tended to become rather superficial.' The Foreign
Office (London, 1955), p. 33
2. The autocrats of pre-1914 Europe would probably not have welcomed it; Sir Eyre
Crowe's famous memorandum in the British Foreign Office in 1907 was perhaps the period's
shining exception.
3. Professor Stephen C. Xydis, Department of Political Science, Hunter College, New York,
in The United Nations, Past, Present and Future, ed. James Barros (New York, 1972).
+ Sir Eric Drummond (who later succeeded to the title 'Earl of Perth').
I.
Chapter 35
I. Fourth paragraph
2. An interesting and sensitive account of the work of a Colonial in these surroundings is
given in William Wallace, The Foreign Policy Process in Britain, (London, 1975) Ch. 9.
Chapter 36
I. A procedure under which one adverse vote prevents a decision.
.
2. It is generally accepted that the word 'charter' originated in the group in the United
States State Department engaged, under the supervision of Dr Leo Pasvolsky, in the
preparation of documents and drafts for the Dumbarton Oaks talks. The alternative word
'covenant' was rejected as reminiscent of the failure of the League of Nations.
3 See 36 38 .
4 See 36 38 .
5. The effect of the limitations on the powers of the Assembly to act in a situation in which
the Security Council may not be able to do so are referred to in 36 41.
6. See 36. 29.
7 See 36 41.
8. From an early stage it became apparent that the First Committee could not complete
within one session of the Assembly the amount of work assigned to it. Therefore, in 1948 the
Assembly set up an ad hoc Political Committee to assist it in its work. At the eleventh session
(1956) the Assembly, on the recommendations of the General Committee (see 36. 13), placed
510
Notes
this Committee on a permanent basis and named it the Special Political Committee. The
First Committee has of late increasingly concentrated on disarmament issues.
9. Selection of Vice-Chairmen of the Assembly and Chairmen of Committees is carried out
by negotiation, first within and then between 'blocs'. The electoral process starting with the
President may be protracted. To establish a generally acceptable balance of distribution
between blocs, the Assembly by Resolution 1990 (XVIII) of 17 December 1963 laid down
that the number of Vice-Presidents should in future be 17, distributed in agreed proportions
between African and Asian, Eastern European, Latin American, Western European and other
States, and permanent members of the Security Council. A comparable system has also been
worked out for the choice of the 7 Chairmen of the Main Committees.
10. The Soviet Draft Resolution on non-self-governing territories of 1960 was a case in point.
I I. For the sequel see 36.34'
12. The United Nations Assembly records are full of examples of the mutual influence of politics,
law, institutional theory and practice, etc. A classic instance is the debate on the position of
South Africa recorded in A/PV 2281 of 12 November 1974.
13. The position was further complicated by the decision of the Soviet Government to give its
support in the Congo civil war to Mr Lumumba instead of his rival Mr Adoula whose claims were
supported by the majority of the United Nations.
14. Article 17.2 reads, 'The expense of the Organisation shall be borne by the Members as
apportioned by the General Assembly'.
15. The discussions, voluntary initiatives and expedients accompanying this main question
were of immense length and complexity and can only be studied completely by reference to
United Nations documents. A good background can be obtained from Sydney H. Bailey, The
General Assembly of the United Nations (rev. ed, New York, 1964) and Stephen C. Xydis, The
United Nations, Past, Present and Future, ed. James Barros (New York and London, 1972).
16. The best way to approach a more detailed knowledge of this subject is undoubtedly to use
the latest edition of the United Nations rearbook as a starting-point. Research into the more
detailed or more controversial activities can then follow.
17. The Russians applied to this 'thesis', the term 'hidden veto'.
lB. Rules of Procedure of the General Assembly, United Nations (New York, 1970), p. 18: Rule 128
prescribes the same procedure for the Main Committees of the Assembly.
19. General Assembly Resolution No. 1991(XVIII), 17 December 1963. The Resolution came
into force on 31 August 1965 on receipt of the necessary ratifications.
20. In 1976 Angola was admitted despite abstention by the United States.
2 I. General Assembly Resolution 2758 (XXVI): 'Restoration of the lawful rights of the
People's Republic of China in the United Nations.'
22. Resolution 377, 3 November 1950.
23 See 36.29.
24. See 36.18.
25. Any serious study of the question owes the highest debt to Sydney D. Bailey, both for his
general work on the United Nations, and, in this present context, for his careful, informative
and sensitive work Voting in the Security Council (1969), and his later work The Procedure of the
Security Council (1975)'
26. The Anglo-French vetoes concerned the Suez episode of 1956.
27. There was, for instance, criticism of the failure of the Security Council in 1976 to take
active cognisance of the intervention of Cuban troops in the civil war in Angola; and of the
civil war in the Lebanon in the same year.
2B. Bailey, Voting in the Security Council, p. 10 I.
29. It is right to add that the Resolution left behind one ambiguity for which, in the view of
the Israelis and some others, a solution is required. The English text of the first 'affirmation'
in the Resolution contains the following principle: (i) withdrawal of Israel armed forces from
territories occupied by the recent conflict. ... The French text ('des territoires') does not
admit the narrow distinction between 'territories' and 'the territories' implied in the English,
and this distinction may require final compromise, - and statesmanship. The interpretation of
the formula by the majority of delegations was that the text meant a wholesale restoration of
occupied territories qualified only by small agreed modifications where experience and good
sense indicated that these would help.
30. Full text in Arts. 100 and 10 I.
31. Resolution 2 (I), I February 1946.
.Notes
511
512
,Notes
7. General Assembly Resolution 57 (I), 11 December 1946. (The terms of reference were
amended in Resolution 417 (V), I December 1950.)
8. UNICEF/UK Agreement of 7 October 1953 (Cmd 8981).
9. See 43. 8- 12 and also Appendix 6.
Chapter 38
I. For a general view of this topic by a group of eminent international lawyers and
diplomats, attention is invited to the Report ofa Study Group on the Peaceful Settlement ofDisputes,
under the auspices of the David Davies Memorial Institute, (London, 1966).
2. For a survey of the history of international arbitration, see J. L. Simpson and Hazel Fox,
International Arbitration (London, 1959), and Hudson, The Permanent Court of International Justice
(1934)
3. Op. cit., Ch. I, p. I. The rest of the chapter follows the practical development of this
innovation through the nineteenth century.
4. Art. 92 also defines the exact terms of the International Court's succession to the
Permanent Court of International Justice. Chapter 39 of this book discusses the International
Court in greater detail.
5. 'Judicial settlement' refers to the processes described in Chapter 39 (International Court of
Justice) while 'resort to regional agencies or arrangements' may be taken to refer generally to
such agencies as are referred to in Chapters 37 and 42 and are in good standing with the
United Nations.
6. Satow, 4th edn, p. 487, para. 2, and Report on the Peaceful Settlement of Disputes, (see
footnote I), p. 67.
7. See e.g. Winston Churchill, The Gathering Storm (London and Boston, 1948).
8. General Assembly Resolution 268D (Ill) of 28 April 1949.
9. The Netherlands Government were also active in this period.
10. Op. cit., p. 45, para. 65. The whole subject of the peaceful settlement of disputes is dealt
with in detail in Sect. I, paras. 4-46.
I I. Trea{v Series, No. 118 (1961).
12. Hansard, HC Debates, Vol. 670 (Written Answers), cols. 77-8.
13. Report on the Peaceful Settlement of Disputes, p. 72, para I.
14. Satow, op. cit., p. 438, para. 809, quoting Oppenheim, International Lau', (7th edn, 1952),
Vol. 2, p. 10.
15. Op. cit., para. 2.
16. Resolution 194 (Ill) of 1948.
17. See comments on Dr Henry Kissinger's methods in 43.7.
18.49 A.I.D.I. (1961), Vol. 2, p. 227: quoted in Report on the Peaceful settlement o.IDiJ/JuteJ,
Annexe IIC para. 4.
19. Cmnd 4818; Art. 66(b) and the Annex.
20. T rea~v Series, No. 10 (196 I ).
2 I. Yearbook of the International Lau' Commission (1958), Vol. 2.
22. See Cmnd 2682 (1965)'
23. In the Palena case, a tribunal presided over by Lord MeNair (formerly President of the
International Court of Justice) gave in 1966 a decision which was accepted by both parties.
(The Award was published by HMSO. in 1966.) In 1977 a decision on the Beagle Channel
case was given by a tribunal presided over by Sir Gerald Fitzmaurice (formerly a judge of the
International Court of Justice). See 31.2 I.
Chapter 39
I. A leading work on the Court is Rosenne, The Law and practice of the International Court, in two
volumes (Leyden, 1965). For the general reader, see idem, The World Court: What it is and How
it IVo rks, (3rd edn, 1973) and The International Court of]ustice, (1976) a booklet prepared by
the Registry of the Court. For recent surveys of the Court's role and standing see Professor
M. Lachs, 'La Cour Internationale de Justice dans le monde d'aujourd'hui.' 9 RBDI (1975), p. 548,
and Gross (ed.), The Future of the International Court of Justice (1976), 2 vols.
2. Goodrich, Hambro and Simons, Charter of the United. 'Ifations (3rd edn, 1969).
3. See 39.7. The Court submits reports to the General Assembly: that for 1974 to 1976 is in
,Notes
513
Document A/31/5' The Court also publishes Yearbooks, the most recent of which (No. 30)
covers the period from I August 1975 to 31 July 1976.
4 Resolution 9 1(I) (1946).
5. 1(7 Yearbook '975-'976, pp. 35-7 Before becoming a Member of the United Nations,
Japan was a party to the Statute of the Court from 2 April 1954.
6. See Resolution 9 (1946). For full details, see the fourth edition of this work and 1(7
Yearbook '975-76, pp. 37-8. In the past, several declarations were filed under this provision.
7. See Article 34 of the Vienna Convention on the Law of Treaties, 1969 (Cmnd 4818).
8. Ibid., Article 36.
9. Indeed Article 35(2) of the Statute, referring to the conditions under which the Court
shall be open to states not parties to the Statute, expressly says that 'in no case shall such
conditions place the parties in a position of inequality before the Court.'
10. Goodrich et aI., op. cit., pp. 555-8.
I I. Article 96 of the Charter (Advisory Opinions) is considered at 39.24.
12. In exercise of the power given to it by Article 70 of the Statute.
13. In 1975, work began on a new building at the expense of the Dutch Government in the
grounds of the Peace Palace where the Court sits in The Hague. In its Report for 1974-6, the
Court stated that the new building would 'help to remedy what has long been an
unsatisfactory situation.'
14. Gilberto Amado Memorial Lecture by Judge (now President) Jimenez de Arechaga, 15
June 1972, pp. 27-8, reproduced in 67 AJ.I.L. p. I, at p. 21.
15 I(] ,yearbook '975-'976, p. 118.
16. Concerning the national groups in the Permanent Court of Arbitration, see 38.3.
describing the method of selecting arbitrators according to the Hague Convention of 1899.
17. See for example Orders Nos. I, 2, and 3 of 26 January 1971 in the Advisory Opinion on
the Legal Consequences for States of the Continued Presence of South Africa in Namibia
(South West Africa) notwithstanding Security Council Resolution 276 (1970) I(] Reports
(197 1), pp. 3,6 and 9, also pp. 18- 19.
18. In an exchange of letters between the President of the Court and the Dutch Minister of
Foreign Affairs on 26 June 1946, it was arranged that Members of the Court would, in a
general way, enjoy the same privileges immunities, facilities and prerogatives as Heads of
Diplomatic Missions in the Hague (I(] Acts and Documents, No. I, 2nd edn, pp. 86-90). For
the special arrangements about the question of precedence of Members of the Court in
relation to Ambassadors, see 20.28 and 1(7 rearbook '970-'97', pp. 110-1 I. In the Hague
the president of the Court takes precedence over the Dean of the Diplomatic Corps.
19. Changes made to the Rules of Procedure in 1972 were designed to facilitate and
encourage the use of Chambers, but no case has ever been referred to one.
20. The additional judges (usually known as ad hoc judges) need not possess the nationality of
the party who appoints them, although of course they usually do. They can be appointed in
certain circumstances for Advisory Opinions: an example of the appointment of a nonnational is that by Morocco of Mr A Boni (Ivory Coast) in the Western Sahara Advisory
Opinion (I(] Reports (1975), p. 12).
2 I. See the Advisory Opinion concerning Reparation for Injuries suffered in the service of the
United Nations (I(] Reports (1949), p. 174)
22. See 39.25-8.
23. By 'parties' is meant states having a right of access to the Court under Articles 34 and
35 of the Statute.
24. In the North Sea Continental Shelf cases, jurisdiction was based on two agreements between
Denmark and the FRG and between the Netherlands and the FRG (/C] Reports (1969),
pp. 5-7)
25 P(;I],~eries A, No. 15.
26. f(.] Reports (1948), p. 15.
27. The rules governing preliminary objections - which are usually, though not necessarily,
objections to the jurisdiction - are contained in Article 67 of the Rules of Court.
28. Northern Cameroons case (le] Reports (1963), p. 15)
29.. Vuclear Tests cases (/(7 Reports (1974), pp. 253 and 45 1).
30. For a full survey of the provisions of Article 38 of the Statute see Parry, The Sources and
Evidences of International Law (1965)'
31. Rule 35 of the Rules of Court.
514
.Notes
.Notes
515
Nations provides as follows: 'If a difference arises between the United Nations on the one
hand and a Member on the other hand, a request shall be made for an advisory opinion on
any legal question involved in accordance with Article 96 of the Charter and Article 65 of the
Statute of the Court. The opinion given by the Court shall be accepted as decisive by the
parties.'
Chapter 40
Art. 7.
Hamard, H.C. Debates, Written Answer by Mr Ennals on 20 January 1975. For a
comprehensive account of developments in the law regarding privileges and immunities of
international organisations see Jenks, Internalionallmmunities (1961), London and New York.
3. ['h" Trea~y Series, No. 10 (1950).
4. See 40.18 (2).
5 ['h' Trea~)'Series, No. 69 (1959).
6. The organisations are:
International Labour Organisation (ILO)
Food and Agriculture Organisation (FAO)
International Civil Aviation Organisation (ICAO)
United Nations Educational, Scientific and Cultural Organisation (UNESCO)
International Monetary Fund (IMF)
International Bank for Reconstruction and Development (IBRD)
World Health Organisation (WHO)
Universal Postal Union (UPU)
International Telecommunication Union (ITU)
International Refugee Organisation (IRO)
World Meteorological Organisation (WMO)
Inter-Governmental Maritime Consultative Organisation (IMCO)
International Finance Corporation (IFC)
7. UK Treaty .\eries, No. 11 (1955)'
8. Agreement on the Status of the Central Treaty Organisation, National Representatives
and International Staff, 1960, Cmnd 1721.
9. UK Treaty Series, No. 4 2 (1957)
10. VK Treaty Series, No. 34 (1953) (extended by four later Protocols).
11. UK Treaty Series, No. 50 (1954).
12.2 UN Treaty Series, p. 39 (Art. IX at p. 72).
13.2 UN Treaty Series, p. 134 (Art. VII at p. 180).
14. 264 UN Treaty Series, (Art. VI at p. 142).
15. lTK Treaty Series, No. I (1961) (Art. VIII).
16. [IK Treaty Series, No. 53 (1968) (Ch. VIII).
17. lTK Trea~y Series, No. 36 (1970) (Ch. VIII).
18. See Convention relating to Cooperation for the Safety of Air Navigation
(EUROCONTROL), 1960 (UK Treaty Series, No. 39 (1963) ), Art. 21-7, and Additional
Protocol to the Convention, 1970 (Cmnd 4499).
19. See Agreement relating to International Telecommunications Satellite Organisation
(INTELSAT) (UK Trea~y Series, No. 80 (1973)); and International Maritime Satellite
Organi!>ation (INMARSAT).
20. European Launcher Development Organisation (ELDO).
21. European Centre for Medium Range \Veather Forecasts.
22. l"lt" Tlfa~)' Sf/ie,l, No. 39 (1968).
23. l'l( Treaty Series, No. 28 (1967). These two organisations subsequently merged to form the
European Space Agency.
24. General Assembly Resolution of 13 February 1946.
25. Resolution (69)29 adopted hy the Committee of Ministers of the Council of Europe on 26
I.
2.
516
Notes
Chapter 42
The 'Joint Command' decision is often believed to have been a counter-measure to
NATO. It was, in fact, a reply to the Paris Agreements of 1954, (42.40-41). See Barraclough
I.
Notes
517
518
Notes
34. There are problems about the correct title to use in different contexts. There is no doubt
that the founders decided 'to create a European Community' (Treaty of Rome Preamble,
final para.), and this is a straightforward, popularly usable title. It should, however, be
recalled that the European Coal and Steel Community existed before the establishment of the
EEC, and the European Atomic Energy Community was created at the same time as the
EEC; in many circumstances and applications, the title 'European Communities' is correct
(see for instance the title 'Convention relating to certain institutions common to the European
Communities,' Treaty of Rome, Annex 11).
It is important to bear in mind that, as the United Kingdom was not a signatory of the
Treaty of Rome, no English text can be regarded as authoritative for legal purposes; this
point is made clear by HMSO in the English translation published by them in [967. The
official and authentic texts are the French, German, Italian and Dutch, published by the
office of the EEC in Brussels.
35. Commissioner for Armament Supplies and Reconstruction in the French Committee of
National Liberation, [943-4. General Commissioner for the Modernisation Plan (which bears
his name), [947. President of the ECSC High Authority, [952-5.
36. Foreign Minister of Belgium, [936. Prime Minister, [938-9. Active in forming the Benelux
Customs Union, [944, and in the drafting of the UN Charter and the NATO Treaty.
Secretary-General of NATO [957-6I. Frequently held office of Prime Minister and Foreign
Minister in Belgium.
37. Prime Minister of France, [947-8. Minister of Foreign Affairs, [948-52. President of the
European Parliament, Strasbourg [958-60.
38. Head of the French Supply Mission to the USA, [944. Director of External Economic
Relations in the French Ministry of National Economy, [945. Deputy High Commissioner for
the Modernisation and Equipment Plan, [946. Secretary-General of OEEC, [948-55.
39. Le Binilux Commenti, Karelle et Kemmeter, (Brussels, [96[).
40. This was one of those occasions when an accumulation of doubts, both personal and
institutional, provided a difficult atmosphere in which to achieve a positive result. A vivid
description of this will be found in Dean Acheson, Present at the Creation (London, [970),
pp. 38 4-7.
4I. An agreement providing for a 'Standing Council of Association' between the United
Kingdom and the ECSC was signed on 2[ December [954. (Cmd 9346.)
42. Published in Brussels (See fn. 34.)
43. This episode is included partly as showing that, in the diplomatic context, the status of a
parliamentary representative may be held to differ from that of an official.
44. Ambassador Attilio Cattani one of the leading economic negotiators for Italy at this
period and later head of the Italian Foreign Office, once observed to the editor, 'We looked
out together over the Straits of Messina and did not quite believe what we had done.'
45. The agreement was initialled in [959 and signed in [960. (Cmnd [026.) EFTA consisted
originally of Austria, Denmark, Norway, Portugal, Sweden, Switzerland and the United
Kingdom. The UK and Sweden were the principal architects; Finland and Iceland joined
later. By [977, Britain and Denmark had joined the EEC, Norway had negotiated entry but
had not ratified. Under a series of agreements, industrial goods were moving freely between
the sixteen EEC and EFTA countries.
46. Determines a etablir les fondements d'une union sans cesse plus etroite entre les peuples
europeens.... '
47. 'Les Fondements de la Communaute.'
48. See fn. 45.
49 Cmnd 4862- [ of [972. The United Kingdom gave notice at the time that it had not
acceded to the Treaty establishing the European Coal and Steel Community. But the UK did
sign in time to accede to all three communities on [ January [973.
50. See Cmnd I026, pp. I07, [22 on the future of sterling balances and future handling of
certain sensitive agricultural products.
5 I. By [977 the figure had risen to fifty-two.
52. President of the Consultative Assembly of the Council of Europe ([954-6) and Prime
Minister of France ([ 956-7). In his foreword to The Council of Europe (London, [96 [), Mr A.
H. Robertson gives a brilliantly lucid account of the events leading up to the formation of the
Council of Europe (pp. [-6), and follows it with a few equally clear and persuasive pages on
why the tendency, since the Second World War, to produce multilateral organisations has
persisted.
.Notes
519
53. There is some danger here of a confusion in names. In the Statute, the Consultative
Assembly is called by that name; a full description would be 'the Consultative Assembly of
the Council of Europe.' The parliamentary body of the European Community is called in the
Treaty of Rome, Art. 137, 'The Assembly.' It became known in popular usage as 'The
European Parliament' and adopted the name in 1962. The confusion was at its worst when,
with the Council of Europe sometimes referring in its literature to the Consultative Assembly
as the 'parliamentary Assembly', the European Parliament held some meetings in the Council
of Europe Building in Strasbourg pending the completion of its own accommodation in
Brussels.
54. For the negotiations see Robertson, op. cit., pp. 160-84. The precise status of a draft
Convention at any given moment can be a somewhat intricate matter. Expressed as simply as
possible, when the Committee of Ministers approves, under its Rules of Procedure, a draft
text, it is 'open for signature.' The text is then submitted to individual member governments,
with a favourable recommendation, by their representatives on the Committee, for signature
and ratification. When a number of ratifications, usually specified in the text, is received, the
Convention has 'entered into force.'
55. For a fuller treatment, the reader is referred to Gordon Connell-Smith's masterly study,
The Inter-American .\)stem (London, 1966).
56. Sim6n Bolivar, called El Libertador, born at Caracas in Venezuela in 1783. After
travelling in Europe and the USA he joined the independence movement in Venezuela in
1809 and commanded insurgent forces with varying success until he defeated the Spaniards in
1821 and became the first President of Colombia, later helping to bring both Ecuador and
Peru to independence. He died in 1830.
57. President J ames Monroe embodied this doctrine, now universally known by his name, in a
message (largely written by John Quincy Adams, Secretary of State and future President) to
Congress on 2 December 1823. The so-called Roosevelt Corollary, enunciated by President
Theodore Roosevelt in 1904, seemed to be an extension of the doctrine presaging claims by
the USA to the right of intelVention in the affairs of Latin American states. In 1923 Secretary
of State Hughes formally stated that the US had no such intention, and in 1930 was
published a memorandum previously prepared by Under-Secretry J. Reuben Clark, stating
that the Corollary was not justified by the terms of the Monroe Doctrine.
58. Established by the Charter of Punta del Este, under which $20 billion, largely from US
governmental sources, would be made available over a period of ten years for national
development projects in Latin America.
59. Diplomatic asylum is a subject having peculiar relevance to Latin America. An InterAmerican Convention on Diplomatic Asylum, recognising a general right of asylum, and also
a similar Convention on Territorial Asylum, were signed at Caracas in March 1954. The
United States refused to sign either; and five signatory states recorded reselVations. See 14.20
and 2 I.
60. A list is appended to this section.
61. It is fair to recall that Ethiopia had retained its independence until its conquest by Italy
under Mussolini in 1935. This, together with the sUlVival in exile of the Emperor Haile
Selassie, gave Ethiopia a good claim to be the headquarters of the eventual OAU.
62. Apart, of course, from South Africa. (See 42.159.)
63. For the historian of the development of the idea of African unity, the lists of attendances
at these conferences are of very special interest. They suggest a study, as it were, in two
depths, (I) the general growth of the idea and (2) variations of thinking and of regime in each
of the individual countries.
64. The amalgamation of Malaya and Singapore as Malaysia had not worked satisfactorily,
and the two states were separate again by August 1965. The name 'Malaysia' was, however,
retained by the former Malaya as a better designation for a state which included as well as
Malaya the states of Sarawak and Sabah (former North Borneo).
65. ASEAN Problems and Prospects, Singapore, (December 1975).
Chapter 43
I. Castlereagh took twenty-eight days to reach Vienna for the Congress in 1815,
with a short detour to call on Talleyrand in Paris.
2. This felicitous phrase was first employed in Sir Vat Duncan's Report on British Overseas
520
Notes
Chapter 44
I. Paris, I 716
2. The orthography and accenuation of the original are preserved.
3. Observe that the word diplomate did not exist when Callieres wrote.
4. James Harris, first Earl of Malmesbury, British Ambassador at St Petersburg, I 777-82.
5 Diaries and Correspondence, Vol. 4, p. 420.
6. Garden, Traiti complet de Diplomatie, Vol. 2, p. 84.
7- F. de Martens, Recueil des Traitis etc., Vol. 15, p. 140'
8. See Ch. 2 I.
9. Ollivier, L'Empire Liberal, Vol. I, p. 322.
10. Callieres, op. cit., pp. 298, 304.
I I. See 44.26. 12. See 44.27.
13. Harold Nicolson, DiplomaC)! (Oxford, 1939), p. 126.
14. Garrett Mattingly, Renaissance Diplomacy, (London, 1955), Ch. 25.
15. Sir William Temple (I 628-99), distinguished British diplomat and writer much involved
in the succession of William III and Mary to the British throne in 1689. In 1669 he applied
the principle quoted above in the brilliantly swift negotiation of an alliance to protect the
Netherlands and Flanders against French pressure.
16. See 4.7.
17 Beckles Willson, Friend~y Relations (London, 1934), pp. 43-7.
18. This suggestion is made on no other authority than experience, which may not be
applicable everywhere.
19. In this context, the word 'cabinet' is always used with the French pronunciation.
20. For this analysis, the Editor is indebted to the late Mr Radivoy Uvalic, Yugoslav
Ambassador in India in the early 1960s, and from 1968 to I97 I Head of the Yugoslav
Foreign Office.
2 I. For some comment on certain concrete cases, see Gore-Booth, With Great Truth and Respect,
pp.80-I.
22. Hamlet, Act I, Scene 3, l. 78.
~3 King Henry VI, Part Ill, Act IV, Scene 3, l. 35.
Appendix I
I. Cussy, Dictionnaire du Diplomate et du Consul, s.v.; Oppenheim, Vol. 2, s. 95.
2. Garden, Traiti Complet de Diplomatie, Vol. 3, p. 344.
3 BFSP, Vol. 39, p. 49 I.
4. See also Ollivier, L'Empire Liberal, Vol. 2, p. 320; and F. de Martens, Recueil des Traitis
etc., Vol. 7, p. 262.
5. Foster, A Century of American Diploma9', p. 246, defines uti possidetis by the belligerents as
the territory occupied by their armies at the end of the war, but this seems too absolute. Cr.
Oppenheim, Vol. 2, 263.
6. Jenkinson, Vol. 3, p. 91.
.Notes
521
Appendix III
I. United Nations OP1/599, November 1977.
2. Formerly Dahomey.
3. Formerly Cambodia.
4. Egypt and Syria were original Members of the United Nations from 24 October 1945.
Following a plebiscite on 21 February 1958, the United Arab Republic was established by a
union of Egypt and Syria and continued as a single member. On 13 October 1961, Syria,
having resumed its status as an independent state, resumed its separate membership in the
United Nations.
5. By letter of 20 January 1965, Indonesia announced its decision to withdraw from the
United Nations 'at this stage and under the present circumstances.' By telegram of 19
September 1966, it announced its decision 'to resume full cooperation with the United
Nations and to resume participation in its activities.' On 28 September 1966, the General
Assembly took note of this decision and the President invited representatives of Indonesia to
take seats in the Assembly.
6. Formerly Laos.
7- The Federation of Malaya joined the United Nations on 17 September 1957. On 16
September 1963, its name was changed to Malaysia, following the admission to the new
Federation of Singapore, Sabah (North Borneo) and Sarawak. Singapore became an
independent state on 9 August 1965 and a member of the United Nations on 21 September
196 5.
8. See note 4.
9. Tanganyika was a Member of the United Nations from 14 December 1961 and Zanzibar
was a Member from 16 December 1963. Following the ratification on 26 April 1964 of
Articles of Union between Tanganyika and Zanzibar, the United Republic of Tanganyika
and Zanzibar continued as a single member, changing its name to United RepUblic of
Tanzania on I November 1964.
Bibliography
This bibliography contains all the sources quoted in the Fourth Edition and the names of all the
original works to which reference has been made in the present text. It will be noted that many of
Satow's references are to classical nineteenth-century works on diplomacy which by now might be
considered out of date. But they remain valuable because the nineteenth century was the first
period in which the establishment of rules of diplomacy by the Congress of Vienna made such a
general treatment possible. Twentieth-century writing has carried further the exploration of
primary sources and the study of individual cases; but the value ofthe generalised approach which
was fundamental to the shaping of Satow's book is not thereby diminished. The present editors
have accordingly mentioned, in addition to references of quoted material, only a few books and
articles which they found particularly illustrative or otherwise helpful.
Bibliography
English Reports (ER). An edited collection of law reports from 1220 to 1865.
Law Reports (LR) (monthly); Weekry Law Reports (WLR) - . Published as official senes
In
International Court of Justice (commonly abbreviated ICJ) publish Reports, a Yearbook (see
above) and a Registry.
International Commission of Jurists (not to be confused with the ICJ above) publish occasional
reports, a Yearbook and a biannual Review in Geneva.
Permanent Court of International Justice (PCIJ) publications:
Series A - Judgments, 1922-30;
Series B - Advisory Opinions, 1922 - 30;
Series A/B - Cumulative Collection ofJudgments and Opinions given since 1931. 193 I -40. Leyden.
Reports oflnternational Arbitral Awards, 1949 - , published by the United Nations.
Publications of international organisations are in general listed under the name of the organisation
in question, e.g. League of Nations Treaty Series, and United Nations Treaty Series (UNTS).
British and Foreign State Papers (BFSP) are an official series which began to be issued in 1841. Since
1887 they have been published by His/Her Majesty's Stationery Office (HMSO). The series
includes documents dating from the year 1373 onwards.
Command Papers (Cmd., printed Cmnd. from Nov. 1956 onwards) are papers presented to the
British Parliament by command of His/Her Majesty. They are published by HMSO.
Texts ofConventions, Agreements etc. which the United Kingdom has signed, but which are not
yet ratified, or in force, are published in the Miscellaneous, Country, or European Communities
Series. Once an Agreement has been ratified and is in force for the United Kingdom, it is laid before
Parliament again and published in the Treaty Series (TS) of Command Papers. The Vienna
Convention on Consular Relations of 1963, for example, was originally pu blished as Cm nd. 2 I 13, M isc
911963, and re-issued after ratification in 1972 as Cmnd. 5219, TS 1411973. Many Agreements
which do not require ratification or any other process to bring them into force are published
directly in the Treaty Series.
The terminology of legal references follows the accepted methods of indexing used by law
libraries in Britain. As the reader wishing to look them up must inevitably have recourse to such
libraries, no elucidation of them is necessary here.
Angeberg, Comte de. Le Congres de Vienne et les Traitis de 1815. Paris, 1864.
Anson, Sir William. The Law and Custom of the Constitution, 3rd edn. 2 vols. Oxford, 1908.
Argyll, Duke of The EaJtern QuestionfTOm 1856. London, 1879.
Ashley, A. E. M. The Life and Correspondence of Hen~y John Temple, Viscount Palmerston. 2 vols.
London, 1879.
Aspaturian, V. V. The l !nion Republics in Soviet Diplomacy. Geneva, 1960.
Bailey, Sydney D. The General Assembry of the United Nations, rev. edn. New York, 1964.
- . Voting in the Securi~y Council. Indiana University Press, 1969 (rev. edn. 1970).
Barraclough, Geoffrey and Wall, Rachel F. Survey of International Affairs 1955-6. Oxford,
1960.
524
Bibliography
Ban-os, James (00.). The United Nations, Past, Present and Future. New York, 1972.
Bardonnet, Daniel. La denonciation par le gouvernement senegalais de la Convention sur la
Mer Territoriale et la Zone Contigue et de la Convention sur la Peche et la
Conservation des Ressources Biologiques de la Haute Mer en date a Geneve du 29 Avril
195 8 . AFDI, 1972, p. 123.
Basdevant, J. La Conclusion et la Redaction des Traites. HR, 1926(V).
Baumann, Carl Edler. The Diplomatic Kidnappings. The Hague, 1973.
Beloff, Max. Britain's Liberal Empire (vol. I of The Imperial Sunset) London, 1969.
Bittner, L. et al. Repertorium der diplomatischen Vertreter aller Liinder seit dem westfiilischen Frieden
( 1648 ). Vol. I: 1648-1715. Oldenburg, 1936; Vol. 2: 1716-1763. Zurich, 1950; Vol. 3:
1764- 1815. Graz- Koln, 1965.
Bluntschli, J. C. Das moderne Vjjlkerrecht der civilisierten Staaten als Rechtsbuch dargestellt, 3rd edn.
Nordlingen, 1878.
Boeck, Charles de. L'Expulsion, etc. HR, 1927 (iii).
Bologna, Giacomo. Noae Busnelli-Ballarin. Schio, 1884.
Bowett, D. W. The Law of International Institutions, 3rd edn. London, 1965.
Brierly, J. L. The Law of. Vat ions, 6th edn. Oxford, 1963.
Briggs, Herbert W. The Final Act of the London Conference on Germany. 49 AJIL, 1955.
- -. Unilateral Denunciation of Treaties, etc. 68 AJIL, 1974.
Browning, O. The Despatches of Earl Cower. Cambridge, 1885.
Bryce, James. The Holy Roman Empire. London, 1889.
Busch, J. H. M. CrafBismarck und seine Leute wiihrend des Kriegs mit Frankreich, 2nd edn. 2 vols.
Leipzig, 1878.
- -. Bismarck, Some Secret Pages of his History. 3 vols. London, 1898.
Busk, Sir Douglas. The Craft of Diplomacy. London, 1971.
Bynkershoek, Cornelius van (1673-1743). De Foro Legatorum.
Callieres, Franc;ois de. De la manihe de nigocier avec les souverains, etc. Paris and Amsterdam,
1716. Translation by A. F. Whyte, London, 1919.
Calvo, Charles. Dictionnaire de Droit Internat ional Public et Prive. 2 vols. Berlin (and Paris), 1885.
- -. Le Droit international, Thiorie et Pratique, 5th edn. 6 vols. Paris, 1896.
Cambon, Jules. Le Diplomate. Paris, 1926.
Cambridge Modern History (edited by Sir Adolphus Ward and others). 13 vols. Cambridge,
1904- 11.
Camden, William. Annales rerum Anglicarum et Hibernicarum regnante Elizabetha. 2 vols. Leyden,
1616, 3rd edn. translated into English by R. N[orton]. London, 1635.
Castro y Casaleiz, de Cuia prtictica del Diplomtitico Espanol, 2nd edn. 2 vols. Madrid, 1886.
Chappuzeau, Samuel. L'Europe Vivante, etc. Geneva, 1667.
Chatterjee, International Law and Inter-State Relations in Ancient India. London, 1958.
Churchill, Sir Winston. The Second World War. 6 vols. London, 1948-54.
Clark, Eric. Corps Diplomatique. London, 1973.
Cobbett, W. Parliamentary History. 12 vols. London, 1806-12.
Committee of Experts for the Progressive Codification of International Law, Report to the
League of Nations, 1928 (League Document A.15.1928.v.).
Committee of Three. Report on Non-Military Cooperation. Paris, 1956.
Commonwealth Secretariat. Diplomatic Service: Formation and Operation. London, 1973.
Connell-Smith, Gordon. The Inter-American System. London, 1966.
Croker, John Wilson. Correspondence and Diaries, 2nd edn., by Jennings. 3 vols. London, 1885.
Cussy, Baron Ferdinand de. Dictionnaire du Diplomate et du Consul. Leipzig, 1846.
Bibliography
Detter, Ingrid. Essays on the Law of Treaties. London, 1967.
Dicey, A. V. Conflict of Laws, 4th edn. by Berriedale Keith. London, 1927.
Dictionnaire de I' Acadimie fran~ise. Paris, 1694.
Diplomatic correspondence between the United States and Belligerent Governments
relating to Neutral Rights and Commerce. Special Supplement to the American
Journal of International Law, Vot. 10 (1916).
Documents relating to the Discussion of Korea and Indo-China at the Geneva Conference
(Cmd. 9 I 86).
- -. Further Documents relating to the Discussion of Indo-China at the Geneva
Conference, June 16-July 21, 1954 (Cmd. 9239)'
Documents relating to the Meeting of Foreign Ministen, Berlin, January 25-February 18,
1954 (Cmd. 9080 ).
Dumont, Baron Jean C. de. Corps Universel Diplomatique duo Droit des Gens. Paris, 1725-31.
Duncan, Sir Val. Report ofthe Review Committee on Overseas Representation, 1968-9. Cmnd. 4107.
London, 1969.
EFTA Secretariat. Building EFTA. Geneva, 1966.
Ehler, Sidney Z. The recent Concordats. 104 HR (1961) p. I.
Evelyn, John. Diary. Edited by W. Bray. 4 vols. London, 1906 - .
Fauchille, P. Traiti de Droit International Public. 8th edn. ofBonfils' Manuel de Droit International
Public. 2 vols. Paris, 1926.
Feltham, R. G. Diplomatic Handbook. London, 1970.
Ferraris, Lucius. Prompta Bibliotheca canonica, juridica, etc. I I vols. Venice, 1782-94 (Paris,
1852 -7).
Finett, Sir John. Finetti Philoxonis: Som Choice Observations etc. London, 1656.
Fitzmaurice, Sir Gerald. A Diplomat's Handbook of International Law and Practice. The Hague,
1965.
Fitzmaurice, G. G. The Law and Procedure of the International Court ofJustice. 29 Brn
(1952).
- -. Reservations to Multilateral Conventions. 2. ICL~ January 1953.
Flassan, G. de R. de Histoire Ginirale et Raisonnie de la Diplomatie Fran~aise, 2nd edn. 7 vols.
Paris, 181 I.
Foreign Office and the Commonwealth Offu:e, The Merger of the. London (HMSO) 1968.
Foster, J. W. A Century of American Diplomacy. Boston, 1900.
- -. The Practice of Diplomacy as Illustrated in the Foreign Relations ofthe United States. Boston,
1906
Garda de la Vega, D. Guide Pratique des Agents Politiques, etc. Brussels and Paris, 1873.
Garden, Comte Guillaume de. Histoire des Traites de Paix. 13 vols. Paris, 1848-59.
- -. Trait! complet de Diplomatie. 3 vols. Paris, 1883.
Gardiner, S. R. History of the Commonwealth and Protectorate. 3 vols. London, 1894-190 I.
Gardner, R. N. Sterling-Dollar Diplomacy. London, 1956.
Genet, R. Trait! de Diplomatie et de Droit Diplomatique. 3 vols. Paris, 1931.
Gentili, Alberico. De Legationibus Libri Tres. 1585.
Gerin. -. 16 RQH.
Goebbels Diaries, The. Edited by Louis P. Lochner. New York, 1948.
Goodrich, Leland M. The United Nations. New York 1959; London, 1960.
Goodrich, L. M., Hambro, E. and Simons. ThtCharterofthe UnitedNations, 3rdedn. London,
1969'
Gore-Booth, Lord. With Great Truth and Respect. London, 1974.
Grandin, Thomas. The Political Use of the Radio. Geneva Studies, X, 3, 1939.
Grassis, Paris de. Diarium. British Museum, MSS. 8440-4 (cited in 25 RDILC ( 1893) p. 515.)
Gross, Leo (ed.) The Future of the International Court of Justice. 2 vols. New York, 1976.
526
Bibliography
Grotius, Hugo. De Jure Belli ac Pacis (d)25)' Translated by Whewell. 3 vols. Cambridge and
London, 1853.
Group of Four. A Remodelled Economic Organisation. Paris, 1960.
Guizot, F. P. G. Mbnoires pour semir al'Histoire de mon Temps. 8 vols. Paris, 1857-67.
- -. Histoire de la Ripublique d'Angletem et de Cromwell. 2 vols. Paris, 1856.
Bibliography
Jackson, Sir GeotTrey. People's Prison. London, 1973.
Jenkinson, Charles (1st Earl ofLiverpool). A Collection ()fall the Treaties . .. between Great Britain
and Other Powers . .. from 1648 to . . . 1783. London, 1785.
Jenks, C. Wilfred. Internationallmmunities. London and New York, 1961.
Jimenez de Arechaga, Eduardo. The Amendments to the Rules of Procedure of the
International Court of Justice. 67 AJIL (1973) p. I.
Johnson, W. F. America's Foreign Relations. 2 vols. London, 1916.
Joy, c. T. How Communists Negotiate. New York, 1955.
Kay, David A. In The United Nations, Past, Present and Future, edited by James Barros. New
York, 1972.
Karelle, Jacques and Kemmeter, Fritz de. Le Benelux Comment!. Brussels, 196 I.
Keith, A. Berriedale, and Adair, E. R. 12 JCL (1930) and 13 JCL (1931).
Keith, K. J. The Extent ofthe Advisory Jurisdiction of the International Court ofJustice. Leyden,
197 I.
Kelly, Sir David. The Ruling Few. London, 1952.
Kelsen, Hans. The Law of the United Nations. London, 195 I .
Kennedy, A. L. Old Diplomacy and New. London, 1922.
Kissinger, Henry. Nuclear Weapons and Nuclear Policy. New York, 1957.
Klliber, J. L. Acten des Wiener Congresses, 2nd edn. Erlangen, 1817-35.
Kluchevsky, V. O. A History of Russia. 5 vols. London, 191 I.
Koch, C. G. de. Histoire abregee des Traites de Paix, etc. (continued to 1815 by F. Schoell).
181 7- 18. 4 vols. Brussels, 1937-8.
Krauske, Otto. Entwickelung der stiindigen Diplomatie, etc. Leipzig, 1885.
La Briere, Yves de. Le Droit concordataire dans la nouvelle Europe. 63 HR (1938) p. 367.
Lacil~, M. La Cour Internationale de Justice dans le monde d'aujourd'hui. 9 RBDl (1975)'
Lawrence, Thomas Joseph. Principles of International Law. 1898. 7th edn., revised. London,
1937
Lay, T. H. The Foreign Service of the United States. New York, 1925.
League of Nations Treaty Series. 205 vols. Geneva, 1920-46.
Lee, Luke T. Consular Law and Practice. London, 196 I.
Lefevre-Pontalis, Antonin. Jean de Wilt. Paris, 1884.
Leibnitz, G. W. von. Codex luris Gentium diplomaticus. Hanover, 1693.
- -. In Holtzendorffs Handbuch des Viilkerrechts, vol. Ill.
Liang, Yuen-li. Notes on legal questions concerning the United Nations observance of
human rights in Bulgaria, Hungary and Rumania. 44 AJIL (1950) p. 100.
- -. United Nations practice with respect to reservations to multipartite instruments. 44
AJIL (1950) p. 117
Livingstone, F. Withdrawal from the United Nations: Indonesia. 14 lCLQ (1965) p. 637.
Lockhart, Robert Hamilton Bruce. Memoirs of a British Agent. London, 1932.
Lucien-Brun, J. La fin des concordats? AFDl, 1972, p. 225.
Machiavelli, Nicolo. L'A rte della Guerra. 152 I.
McNair, Sir Arnold. The Law of Treaties. Oxford, 1961.
Malmesbury, 1st Earl of. Diaries and Correspondence. 4 vols. London, 1844.
Mann, F. A. Studies in International Law. Oxford, 1973.
Mansell, Gerald. Why External Broadcasting? London, 1976.
Martens, Baron Charles de. Causes celebres du Droit des Gms. 2 vols. Leipzig, 1827.
- -. Le Guide diplomatique, 5th edn. by F. H. GetTcken. 2 vols. Leipzig, 1866.
Martens, Georg Friedrich von. Precis du Droit des Gens modeme de I' Europe. 2 vols. Paris, 183 I.
- -. Recueil de Traitis d'Alliance ... depuis 1761 (1761-1808). 8 vols. Gottingen, 1817-35.
- -. Nouveau Recueil ... depuis 1808 (1808-39). 16 vols. and 3 supplements. GOttingen,
181 7-42.
- -. Nouveau Recueil General de Traitis . .. depuis 1840: Series I (1840-73),20 vols. GOttingen,
1843-75; Series Il (1873- 1906),35 vols. Leipzig, 18g6-I908; Series Ill, 1906 -. Leipzig,
IgoB -.
528
Bibliography
Bibliography
Perrenoud, G. Les Restrictions a la Liberte de Deplacement des Diplomates. 57 RGDIP
([953) p. 444
Phillimore, Sir Robert. Commentaries up. 'n International Law, 3rd edn. 4 vols. London, [879-89.
Phillipson, Coleman. The International '.-aw and Custom of Ancient Greece and Rome. 2 vols.
London, [9[I.
Plowden, Lord. Report of the Committee on Representational Services Overseas, 1962-3. London,
[964.
Pradier-Fodere, P. Cours de Droit Diplomatique 2 vols. Paris, [88I.
Prescott, W. H. History of the Reign of Philip II. London, [855.
Public Record Office Documents:
King's Letters, Prussia, [737-60.
S.P. Foreign, Germany, vol. LX.
S.P. France, 242.
Puissochet, Jean Pierre. L'Elargissement des Communautes Europeennes. Paris, [974.
530
Bibliography
Bibliography
Wallace, William. The Foreign Policy Process in Britain. London, 1975.
Walton, Izaak. Reliquia Wottoniana, 4th edn. London, 1685.
Ward (afterwards Plumer Ward), Robert. An Enquiry into the Foundation and History ofthe Law
of Nations in Europe. 2 vols. London, 1795.
Watt, D. C. Personalities and Politics. London, 1965.
Webster, Sir Charles Kingsley. The Art and Practice of Diplomacy. London, 1961.
Weinstein, J. L. Exchange of Notes. 29 BrIL (1952) p. 205.
Wheaten, Henry. Elements ofInternational Law. 8th (American) edn., by Dana. Boston, 1866;
5th (English) edn., by Coleman Phillipson. London, 1916.
Whitton,John B. and Larson, Arthur. Propaganda: Towards Disarmament in the War of Words.
New York, 1964Wicquefort, A. Van. L'Ambassadeur et ses Fonctions. 2 vols. The Hague, 1682; Amsterdam,
1730 .
Willson, Beckles. Friend~y Relations. London, 1934.
Wilson, C. E. Diplomatic Privileges and Immunities. Tucson, Ariz., 1967.
Wolff, C. Jus gentium methodo scientifico pertractatum. Halle:an-der-Saale, 1749.
Wood, John R. and Serres, Jean. Diplomatic Ceremonial and Protocol. London, 1970.
World Health Organisation. Final Act of Conference, and Constitution. (Cmd. 7458).
World Meteorological Organisation. Final Act of Conference, and Convention. (Cmd.
742 7).
Wynn, Wilton. Nasser of Egypt: The Search for Dignity. Cambridge, Mass., 1959.
Xydis, Stephen C. In The UnitedNations, Past, Present and Future. Ed.James Barros. New York,
197 2.
Yoshitomi, M. Chine: l'affaire de la perquisition de l'Ambassade Sovietique cl Pekin par les
autorites chinoises. RGDIP (1928).
Young, Eileen (Eileen Denza). The Development of the Law ofDiplomatic Relations. BrIL
(1964).
53 1
Index
(The references are to chapters and paragraphs)
A
Ablegatus, 11.8
Absence from state ceremony, 20.15,22; 44.45
Acceptance and Approval (treaties),
32 .3 6-4 2
Accession (treaties), 32.21-5
Accreditation, 9.9,31-4
see also credentials
Acheson, Dean, 3.25
Act, 31.1
Additional Articles, 30.16- 19
Address, forms of, $ 7; 20.26,27
Admissions case, 39 n.53
Aegean Sea Continental Shelf case, 39020
Agbor v. Metropolitan Police Commissioner,
15-7
Agreation, (Agrement) 12.1 - I I
Agreement. 29020
Aide-m/moire, 7.20
Aircraft, seizure of (Hague Convention),
24. 14- 16; 32 n.6
Aix-la-Chapelle, Congress of (1818), 6.1
Alabama case, 38.1
Alexander I, Tsar, 12.3.
AIIende, President, 14.22; 21.14
Alternat, 4- I I - 14, 15; 2g.42
Altesse, 5.7
Ambassade d'obidience, 4-2
Ambassadors, 1.5,6; 4-17; 10.2-6; 20.9- 1 I
special, 4-20; 5-32
title, 11.9; 20.26
Ambatielos claim, 29.32
Amin, President, 22.14
Anglo-Iranian Oil Company case, 39 n.42, n.44
Anne, Queen, 5- I 3
Anne, Statute of, 14 n.lO; 15-2 and n. 14
Appel, 7.11-13
Index
B
Baader-Meinhof, 24 n3
Bags, official, 14.$ 14.26-8,30,31; 27. I I
Bailo, 11.7
Balfour, Lord, 41.1
Banco de Portugal v. Marang, IS.25
Bangladesh, 9028
Bast, 14.23
Beagle Channel arbitration, 31.21; 38.32,
n.23
Belatinde, Fernando, 36 n.34
Belligerent rights, 18.12; App. loB
Belleisle, Marshal, 18.11
Benelux, 42.61
BenneU and Ball v. People's Republic of Hungary,
14 n5
Berat, 11.19
Bergman v. de Siiyes, 18.5
Bernadoue, Count Folke, 38.26
Bernstorff, Count, 7.7
Bestoujew-Rioumine, 22.4
Bevin, Ernest, 27.10; 42.16,45
Bhuuo, President, 9028
Bidault, Georges, App. 11. 9
Billet, en, 7.1 I
Birthdays, royal, 20.25
c
Cabinet system, ff.74-5
Cadogan, Sir Alexander, 36.93
Callaghan, James, 3-17
Callieres, Franc;ois de, I. I I; ff. I -29
Calls on appointment to new post, 13.10,19;
20.8,13
Camacho, 12.1 7
Canning, George, 7.7,39
Canning, Sir Stratford, 12.5
see also under Stratford de RedclifTe
Canon Law, 1.5; 11.12
Capitulations, 26.2,3
Caradon, Lord, 36.52
Cardinals, S.39; 11.1$ 20.26
Casa Yrujo, Marques de, 21.18
Castlereagh, Viscount, 7.7; 20 n. 17; 43.7
Castro, President Fidel, 42.135
Cassirer and Geheeb v. Japan, 14 n. 15.
Casus belli, App. I. 16
Casus fOederis, App. I. 16
Catacazy, 21.17
Catholic King (title), S.12
Cecil, Sir Robert, 3.3
Celebrations, national, 20.15,16,22; .....45
flying flags, 20.25
man of war in foreign port, 6.7
see also Mission, ceremonial
534
Index
Contracts (private law), 29.4
Convention, 29 I 7- 19
Convention on the Prevention and
Punishment of Crimes against
Internationally Protected Persons,
including Diplomats, 24.14
Corfu Channel case, 39-1 I
Coronations, 5.29-34
Correspondence, 7
British forms of address, 7.27-8
despatch read and copy left, 7.38-9
heads of states, 7.40
let/res de cabinet, de chancellerie, 7.40; 8.1-7
rejection, 7.34-7
semi-official, 7.29
Counsellor, App. I B
Coup d'etat, 9.16; 21.13
Couriers, 14.3 I
Court (law), 2.$ 15.7,18,19,23,28,
27.4-. 16- 19
Courtoisie, 7. I I
Crampton, 21.1 7
Credentials, 8
change of regime, 9-13,24,30; 21.12
conferences, 28.9
death of sovereign, 21.1 I
presentation, 13-10-18,22-51
UN, ;)6.14
Crime by diplomatic agent, 15.10, I I
Criminals
Convention on the Prevention and
Punishment of crimes against
Internationally Protected Persons,
including Diplomats, 24.14
refuge in legation, 14.17-23
see also Hijacking and terrorism
Cromwell, Oliver, 4- 16
Cros, du, 18.2
Cross, James, 24.5
Crowe, Sir Eyre, (memorandum), 34 n.2
Cuba (missile crisis, 1962),36.48
Customary international law, 14-2,4,9; 26.11;
29 n.1
Customs Regime between Germany and Austria case,
29-5
Customs facilities, 13.5,6; 16.1,9- 15; 17.2,7;
18.6; 19.3,5; 27. 11 , 12, 16,23;
40.4- 6,8,13,15,20
Customs Union, European, 42.70-2
D
Date, 7.11
Death
head of mission, 21.6,7
head of state, 20.2S; 21.10, I
Declaration, 29-28-33
Decolonisation, 36.91
Decorations, see Orders of Chivalry
Defender of the Faith, 5.5,12; 41.12,13
De Gaulle, President Charles, 3687; 42.34,73
Delegations, 28.7,8,9; 40.5,8,20
Index
Dimarche App. I. 7;
by diplomatic corps, 20.5
Den Pasar Conference, 42.174,175
Depeche, en, 7. I I
Despatches, 7.25-7,38,39
Dessolles, 12.5
De Visscher, Professor, 38.2 I
Dharsono, General Hartono Rekso, 42.176
Dickinson v. Del Solar, 15.30
Diplomacy
general, I
by conference, 3+1
public argument, conduct of 36.93
role of international lawyer, 43.13
specialised and technical content,
43-4>9, 10-12
speed of travel, 43-2,7,8
Diplomatic agent, 9-1$ IS; 18 etc.
conduct in absence of diplomatic relations,
2G. 18; 26.8; 27.9
conduct in war time, 9-1$ 20.19-21;
26.7,14
offences against and protection of, 15.4,S;
2$ 24
offences by, 15.10-16,28-9; 20.4; 21.15-24
respect for laws and non-interference in
affairs of state, 15.30-2; 18.13
at UN, 35
see also 3-20; 20.13,22; 4$ 44
Diplomatic lists, 13.10; 20.1,29; App. VI. I
Diplomatic missions, 1.4-8; 9.1 -8; 19
New York Convention on Special Missions
(1969),14- 19
termination, 21
Diplomatic Privileges and Immunities
abuse of, 24-4
acquisition of nationality, 16.18-20
archives and communications, 14-26-31
bag, 14-30
bankruptcy, 150 I 7
cars, 15.8
civil jurisdiction, 15.12-15
commencement and termination, 15.24
conferences, of international organisations,
40.5,8,20
consular, 26.1 1-24
counterclaims, 15023
courier, 14-3 I
criminal jurisdiction, 150 I 0-1 I
customs, see under Customs facilities
evidence, 150 18, 19
extraterritoriality, 14.3
family, 17.2,3
freedom of communication, 14.27-31
freedom of movement, 14.32-4
history, 14.1-2
Holy See, 9-6; 18.5
independence, 14.4
inquests, 15.17; 21.6
535
international organisations, 40
jury service, 16.14
local nationals employed, 17.13-14
military obligations, 16. I 7
official and private capacity, 15.27
premises of mission, 14-9-16
real property, 2.$ 14.24,25; 16.4; 40.4,18
reciprocity, 14.~ 17.8
residence, 15.6-9
servants, 17.1 1-12
service staff, 17.9-10
social security, 16.16
termination of mission, 21.6,9
UK guidance, 17.15
UN, 40
waiver, 15020-2
wireless, 14-29
see also Inviolability, Taxation
Diplomatic Privileges Act (1708), see Anne,
Statute of
Diplomatic relations
absence, 20.18; 22.2,9; 26.8; 27.9
breach, 21.9; 22
resumption, 9.22,23,30; 20.18
Diplomatic service
admission of women, 10.1,6
amalgamation with consular and
commercial services (British), 10.9;
26.6
British regulations, 10.5-10
qualifications, 10.1 1,15
United States, 10.3; 26 n.2
Soviet Union, 10.4
Diplomatic Wireless, 14.29
Disputes
peaceful settlement of, 38
arbitration. 38.30-4
conciliation, 38.28-9
enquiry, 38.17-21
General Act (1928) for Pacific Settlement,
38.5
good offices, 38.24>25
Hague Conventions, 38.3-4
International Court of Justice, 38.6
judicial settlement, 39-5
mediation, 38.22-7
Permanent Court of Arbitration, 38.3
Permanent Court of International Justice,
38.4
Disraeli, Benjamin, 1.11; 43-7
Diverted Cargoes (arbitration UK-Greece),
29 n.IO
Dominions, see Commonwealth of Nations
Don Pacifico claim, App. 1.4
Donner acte, App. I. 19
Donner la main, App. 1.20
Doyen, II.I~ 20.2-3
Doyen d'age, 28. I I
Doyenne, 20.8
536
Index
E
European Economic Community, 42.59-91
Assembly, 42.80-1
Commission, 42.85-7
Council 42.82-4
European Economic Cooperation,
Organisation for
aims, 42.49-51
Convention (1948), 31.1; 42.46
obligations, 42.52
origins, 42.48
progress, 42.52-6
European Free Trade Association, 42.72-3
European Launcher Development
Organisation, 40.15
European Payments Union, 42.53
European Recovery Programme, 42.45,54
European Space Research Organisation,
4. 15- 16
Evidence, 15.18-19
Excellency, 20.26,27
Exchange of Notes, 7.24; 2905,34-9
Exequatur, 26.7,10,11,12
Expenses case, 39 n.47, n58
Extraterritoriality, 25; 14.3
'Extraordinary' (diplomatic representation),
5-32-S; 119
see also 19
42 65- 6
institutions, 42.67-8
European Defence Community, 42.40-1
F
Falkland Islands, 22.15
Feisul, King, 23.2
Fernan Ntiiiez, 20.35
Fidei Defensor, 5.5, I 2
Final Act, 31.6
Fin de non recevoir, App. 1.18
Fish (US Secretary of State 1871), 21.17
Fisheries jurisdiction case
UKv. Iceland 31.1S; 33.15-5$ 39020;
39 n'3 8, n4 1
Federal Republic ofGermany v. Iceland 39 n'42,
n43
Fishing and Conservation, Convention on,
3333
Flags, 20.23-5
see also Maritime Honours
Foreign and Commonwealth Office,
amalgamation of different elements, 10.8,9
evolution, 41.22,23
nationality qualifications, 10.10
Franchise du quartier, 14.10
Franco, Generalisimo Francisco, 9.25,26
Franks, Sir Oliver (later Lord Franks) 42.45
Frederick William of Brandenburg, 11.7
Free Zones of l pper Sal'~V and District ~l
Gex (France v. Switzerland), 33.49
Fuente, Marques de la, 4.6
Fuerzas Armadas Rebeldes (Guatemala) 24.3
Full Powers, 8.8-2 I; 28.9
conferences, 28.9
reserve of ratification, 32.1,4,13
Secretary of State, 3.9
treaties, 29040
Functions, consular, 27.1 -10
Functions of diplomatic mission, 9.8
Functus officio, 13.1
Funeral of a diplomatic agent, 21.7
Index
537
G
Goodrich, 12.6
Gousev, 7.36
Governors-General, 41.14-16
Graham, Lt Col Patrick, 23.3
Grand Duke, 509
Grand-titre, 5.20
Grassis, Paris de, 4.2
Great Seal, 3.2,7; 32.3
Greene, Joseph N.Jr., 22.1 I
Gremonville, Sieur de, 20.2 I
Grenville, Lord, 7.7
Gromyko, Andre, 3.26; 9- 19
Gros, Professor, 38.21
Guizot, Fran<;ois Pierre Guillaume, 44.53
Gustavus Adolphus, 4.4. I 2
Gyllenborg, Count, 15.10
H
Habana, Act of, 31.2
Habsburg, deposition of House of,
(Hungary), 7.22
Hague Convention of 1899 and 1907
(arbitration) 38.3-4
Haile Selassie, Emperor, 42 n.61
Halifax, Earl of, 10.2
Hammarskjold, Dag, 36.46,62; 3815; 43.7
Harriman, W. Averill, 10.2
Harvard Research Draft Convention on
Diplomatic Privileges and
Immunities (1932), 1+5
Hautesse, 5.8
Havana Convention on Diplomatic Asylum
(1950), 1+21
Havana Convention on Diplomatic Officers
(19 28), 1+5
Haya de la Torre, 14.21
Hayter, Sir William, 44.71
Headquarters Agreements, 4.18
Heinrichs, von, 18.1 I
I
Iceland, 22.12
Ibn Saud, 9-20
Identic Notes, 7.23
Illah, Abdul, 23.2
Immunities, 2,14,15.4
see also Diplomatic Privileges
International Civil Aviation O~ganisation Council,
Jurisdiction of, (India v. Pakistan) 33.46
International Maritime Consultative Organisation
case, 39.n.48
Income Tax, see Taxation
Independence, diplomatic agent, 14.4
Innes, MitchelI, 7.38
Inquests, 150 17; 21.6
Instructions, 13-3; "'40,50 - 2
briefing for a conference, 13.4
Interference, 15.32; 18.13
see also Termination of a mission
538
Index
J
Jackson, G.]., 21.17
Jackson, Sir Geoffrey, 24.5-8
Jamming of Broadcasts, 25.7,8,10
Jarring, Gunnar, 22.1 I; 43.7
J ay Treaty (General Treaty of Friendship,
commerce and Navigation, 1794) 38.1
Jebb, Sir Gladwyn (Lord Gladwyn), 36.93
K
Kaminker brothers, ]6 n.34
Keiley, 12.8- I 0
Kelly, Sir David, 10.7
Kemal, Mustapha, 9-4
Kennedy, President John F., 42.13$ 44.61
Khmer Rouge, 9-23
Kidnapping, 154,5; 24
Kissinger, Henry, I n.2; 22.11; 43.7,8
Korea
Korean war, ]6.39-41
peace conference, App. 11
Kosygin, Alexei, 43.7
Krohn, von, 18.11
Khrushchev, Nikita, 36.89
Kuomintang, ]6.35
Kuznetsov, V. V., ]6.52
L
Labrador (Spanish plenipotentiary 1814),
2035
La Ferronays, 12.3
Laisser-passer, 13-6
Lange, Halvard, 42.33
Languages
conferences, 28.10
diplomatic intercourse, 7.1-8
required for diplomatic service, 10.13
treaties, 29-45-51
UN, ]6.65-70
Lansing, Robert, 3.25
Laporte, Pierre, 24-5
Lateran Treaty, 9.6; 18.5
Lawless, Sir Patrick, 12.17
League of Nations, 1.8; 36- I
Index
Ligne, en, dam la, 7. I I
Lindo, Sir Laurence, 41.28
Lloyd George, 79; 43 7
Locamo Conference, 7.2 I; App. I. I4
Lockhart, Robert Bruce, 27.9
539
M
Messengers, see Couriers
Messina Conference, I955, 42.70
Metternich, Prince von, 3.23; 2035i 43.7
Mighell v. Sultan of Johore, 2 n.4
Minister for Foreign Affairs, I. I4; 3
Minister Plenipotentiary, 11.3,4,7,9; 13.3,20
Minister Resident, 11.7,9
Minority Schools in Upper Silesia case, 39. I I
Minquiers and Ecrehos islets, 3 1 I 7
Mission
ceremonial, 5-32-5
special, 19
termination, 21
Modus vivendi, 31. I 2- I 5
Mollet, Guy, 42.IOI
Molotov, Vyacheslav, App. 11,9, I5
Monitoring, 25. I I
Monnet, Jean, 42.60
Monomachus, 5.I3
Monroe Doctrine, 42. I 20
Montmorin, Armand Marc, Comte de, 3.5
Moolenburgh, Captain, 38.2 I
Moore, (US Counsellor, Khartoum, I973)
24-5
Morny, Duc de, 16.IO
Mortemart, Duc de, 42.45
Mossadegh, 22.6
Motor cars and driving, 15.8; 17.6;
40.I5, I6,20
Mussolini, Benito, 9. I 3
Musurus Bey v. Gadban, 15.25,27
N
Namibia case, 33-45
Napoleon I, 20.2 I
Nasser, President Gamel Abdel, 22. IO; 25.6;
36-45
National Days, 20.22
Nationality, acquisition of, 16.I8-20
Nationals
employment of local nationals, 17. I3- I4
local nationals as representatives offoreign
countries, 12. I 2- I 7
national groups in ICJ, 39-8
protection of, 9.8; 27. 6 -7; .....57
Nehru, Jawaharlal, 3.24
540
Index
alms, 42.19
machinery, 42.24-8,36-8
origins, 42. I6- 18
privileges, 42.29
North Sea Continental Shelf Pleadings, 31 n.2S;
39 n.24
Notarial Acts, 27.4
Note, 7.10-19
Note verba/e, 7. I 4- I S
Notice of Termination (treaties) 33.23
Nuclear Tests cases, 29-2; 39.20 and n.38
Nuclear war, risk of, 22. I7
Nuncio, 11.3, 12-14i 20.2
o
O'Beime, 12. I7
Oder arbitration, 32. 14
Offences, see Diplomatic agent
Ongania, General, 9- I6
Oral agreements, 29.2
Orator, 1.6; 36-93
Orders of Chivalry etc., 20.30-7
Organisation of African Unity, 42.141
activities, 42. I6 I- S
p
Pacific Settlement of Disputes, Revised
General Act for, 38.S
Pact, 30.1
Pakistani Prisoners of War case, 39-20; 39 n.39
Palena arbitration, 38 n.23
Palestine Liberation Organisation, 36.S2
Palmerston, Lord, 3.2$ 7.7; "".S2; App. 1.4
Pan-American Conventions
asylum, 1+20,2 I
diplomatic officers, 3. I9
Pan-American Union, 42. I23, 126
Paris Agreements, 19S2-4, 42.40- I
Passports, 13.6; 14.3 1; 18.4,S,7; 21.IS; 27.4
Peace, 1.8; 22. I I, I 7; 42. I24
Peace conferences, 28.1; Appl. 11
Peace treaties, 28. I8
Peace keeping, 36.44-8,S I
Peaceful settlement of Disputes, 38
Pearson, Lester, 42.33
Perez de Ayala, Ram6n, 9.24
Permanent Court of Arbitration (Hague),
3 8.3,4
Permanent Court of International Justice,
3 8.4
Permanent Delegations at UN, 35-4>S
Perjona grata, 12
Persona non grata, 15.1 I; 21.IS-24
recall refused, 21.18
Peter the Great, 5. I3; 7.3
Peterson, Sir Maurice, 9-2S
Petitioner case, 39 n49
Petit-titre, 5.20
Pichon, 7.9
Pinckney, 21. I7
Index
Press, 7. 17; 13049; 15.~ 25. 11 ,12; 27. 10;
287,21; 350 6; 44.71
Proces-verbalr, 28.17
Pro-memoria, 7.20
Promotion, *80
Pro-Nuncio, 20.2
Property, 202,$ 1506-9; 16.4-5; 21.6
Protecting power, 200 18
Protection
consular, 27.6-7
of diplomats, 15.5
541
Protests
dtmarche by doyen, 20.3,5
against negligence by host government,
2307,11,15,18,25
Protocol, 3020; 4; .$ 6; 13.9-52; 20.1-29;
21.3-8,11; 28.13,18,19; 29023-7;
4 1 12 ,13,2""28; 44. 63-7 1
Publications by diplomats, 44.58
Puebla, Dr de, *63
Punta del Este charter, 42 n.58
R
Rv. Governor of Pentonville Prison, 18.7
Rahman, Sheikh Mujibur, 9.28
Rakovsky, 7.3$ 21.17
Ramphal, Shridath S., 41.2 I
Rapporteurs, 28. I..., 15
Ratification, 8n.$ 32.2-19
examples, 32020
Rebus sic stantibus, 33.49
Recall, letters of, 8.4-6; 21.3
Riclame, 7.1 I
Recognition:
de facto government, 9.13
examples, 9-16-30
methods of according, 9- 14, 15
Records, diplomatic, 3.28-3 I
Recredential, 8.7; 21.4
Red Crusader case, 38.21
Red Guards, 230 I 9
Redress against diplomtic agent, 15028-9
Refugees, UN High Commissioner for, 37.13
see also Asylum
Regent
entitled to sovereign privileges, 2 n. I
in minority, illness, absence of monarch,
9- 10- 11
Regional blocks, 3513-I~ 4305
Registration (treaties), 1.8; 33.59-60; 41.34
Reglement de Vienne, 11.1-2
Regulation, 30.9, 10
Rejection, 7.34-7
by Chinese Charge d'affaires, 23.13-15
*44
542
Index
s
Smith, Arnold, 41.2 I
Soares, Mario, 25.5
Sotomayor, Duke of, 21.19
Souscription, 7. I I
South East Asia Treaty Organisation, 36'30;
42 16 7
Sovereigns, 1.6,8; 2,4,5; 9-1,9-12,26;
13. 10,25-3$ 21.10-11; 41'4, 11, 12-1416; 4+1
see also Titles
Spaak, Paul Henri, 42.60
Special missions, 5.32-5; 19
New York Convention on, 19-4-11
Specialised Agencies (UN), 37. App. IV
Spreti, Count Karl, 15.5; 2+3
Springer, 1+ 19
Stalin, Field-Marshal, 7.36; 36'4
Status quo, App. I. 12
Status of S. J11. Africa case, 39 n.49
Statute, 30.7,8
Statute of Westminster 1931, 41.2
Stratford de Redcliffe, Lord, 1.1 $ 11.1 I
see also Sir Stratford Canning
Stresemann, Ouo, 3.24
Sub spe rati, App. I. 13
Suez crisis, 36'43-5
Suharto, General, 23.12
Sukarno, President Ahmad, 3.2~ 23-9;
4 2 169
Sun Yat-sen, 1+ 13
T
Taigny, 21.17
Talleyrand, C. M. de, 20 n. 17; 20.21,35;
26.1; 43.7
Taxation, 2.$ 14.24.25; 16.1-8;
4,4- 6,11-14,16,18
motor cars, 15-8; 17.6; 40.15,16,20
Temple, Sir WiIliam, 44.64
Teja, Dr, 18'7
Termination of a mission
death of head of mission, 21.6-8
modalities, 21.1-3
nomination of Charge d'affaires, 21.5
persona non grata, 21.15-24
recredential, 21'4
replacement of head of state, 21.10- I I
war, revolution, 21.12-14
Termination of Treaties, 33.23-43,54
Third state, diplomat transiting,
armed conflict and belligerent rights, 18.12
immunities and privileges, 18'5-10
non-interference, 18. I 3
passage in war time, 18. I 1-12
Index
Constitution, 30.3
Consular treaties and conventions, 26.4
Convention, 29. 17- 19
Dates of operation and duration, 29.13
Declaration, 29-28-33
Exchange of Notes, 29-5,34-9
Full powers, 29040
Final Act, 31.6
General Act, 31.3
Head of state or interstate form, 290 I 1- I 6
High contracting parties, 290 15
Languages, 29045-51
Modus vivendi, 31. I 2- 1 5
Notice of termination,33.23
Oral agreements, 29.2
543
Pact, 30.1
Protocol, 29023
Ratification, 32.2-19
Registration, 33.59
Regulations, 30.9
Reservations, 33.2-22
Statute, 30.7
Treaty-making power; 29.1 I (.lee also
Ratification)
Truman, President Harry S., 42.16
Trust territories, 36.71-8
Tsar, 5.~ 13
Tsarevitch, 5.9
Tshombe, President, 27.9
Tupamaros, 24.6
u
negotiation, 38. 12- 16
non-intervention, 36.10
non-self governing territories, 36.79-94
Organisation of American States, relations
with, 42.125,140
organs, 36.7
origins, 36.2-4
Palestine, mediation, 36.45; 38.25-6
Palestine Liberation Organisation, 36.52
permanent delegations, 35.4-5
political techniques, 35.6
privileges and immunities, 40.3-9
public argument, conduct of, 36.93
refugees, UN High Commissioner for,
37. 1 3
Secretariat, 36.60-4
Security Council, 3624-55; 3903,4
Six-Day War (Arab-Israel), 36.52
South Africa (exclusion), 36.15
Specialised Agencies etc, 37; App. IV
specialists, role of, 35.1 I
Suez crisis, 36.43-5
Trusteeship Council, 36.22,71-8
Twenty-four, Committee of, 35. 1 I; 36.91-2
Trade and Development, UN Conference
on, 35.15; ]6.98; 37.10- 12
uniting for peace, 36.1 1,41
veto, 36.29,38,49-54
voting, 36.22,23
Us and them, 44.n
Uti possidetis, App. I. I 2
v
Vance, Cyrus R., 43.7
Vandenberg, Senator Arthur H.,
42.16,18,125
Vatican
544
Index
concordat, 30. I I - I 5
diplomatic representation, 9.6;
11.12-14. 16
treaty with Italy, see Lateran
see also Pope
Vedette, en, 7-1 I
Vergennes, Charles Gravier, Comte de, 3.5
Versailles, Treaty of, 4.18
Veto, see United Nations
Vice-doyen, 20.7
Vienna, Congress of, Reglement, 4.6, 10;
11.1-2,14
Vienna Convention on Consular Relations
w
Westphalen, Graf von, 12.6
Whitworth, Lord, 5 I 3
Wicquefort, Abraham, 12.1 7; 17.13
Wilson v. Blanco, 18.5
Wilson, President Woodrow, 1.8; 3.25; 7.9; 30.
n.8; ]673; 43-7
Wives, 10.6; 17.$ 20.8
doyenne, 20.8
reception at Court of St J ames's,
13. 25,27,3 0,3 1
varying customs elsewhere, 13.50,51
Wotton, Sir Henry, 10.16-19
Wright, Sir Michael, 23-3-5
Wriothesley, Thomas, 3.2
y
Yaounde Convention, 42.92
Yalta, ]6.4
z
Zinoviev letter, 7.35
Zoernsch v. Waldock, 15.27