This is a final exam. I would like somebody to write 5 pages for each question following the instructions below. Your answers should be from your own words after reading the course readings I have attached.
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unit_8.docxUnit Learning Objectives
After reading this unit, you will:
· Understand the nature of diplomacy, its importance to states, and why diplomats are accorded an extensive range of immunities.
· Be able to identify and explain the different types of negotiation and why the majority of international disputes are settled by negotiation.
· Understand the relationship between international arbitration and adjudication as methods of judicial settlement of disputes.
Unit Plan and Summary
This unit discusses the rules governing some of most important set of activities and interactions (diplomacy and negotiation) undertaken by states in their efforts to cooperate and settle disputes peacefully. We begin by discussing the rules on diplomatic relations and diplomatic immunity and then proceed to focus on one of the key functions of diplomats – negotiation. Here, we examine the different forms international negotiations assume (direct and third party) and the types of agreements that may result from successful negotiations. We conclude by examining judicial methods of peaceful dispute settlement in international law focusing on the UN's main judicial organ, the International Court of Justice.
Outline
1. Rules Governing Diplomatic Relations
2. Negotiation & Third Party Intercession
3. Judicial Settlement
Readings
· Malanczuk, Peter. “ Immunity from Jurisdiction .” In Akehurst’s Modern Introduction to International Law, 118-129. 7th ed. London, UK: Routledge, 1997.
Key Concepts
· Criminal and Civil/Administrative Jurisdiction
· Personal Inviolability
· Right of Representation (Active and Passive)
· Persona non grata
· New Diplomacy
· Redistributive Agreements
· Innovation Agreements
· Extension Agreements
· Normalization Agreements
· Negotiation
· Good Offices
· Mediation
· Conciliation
· Inquiry
· Arbitration
· Justiciable
· Contentious and Advisory Proceedings
· Reciprocity and Automaticity reservations
Rules Governing Diplomatic Relations
Diplomacy is a term that encompasses the range of official communications and interactions among states. The rules governing diplomatic relations are among the oldest (and most well respected) branches of international law. Historically, the need to establish a means of official communication among rulers of the newly established sovereign states became one of the first priorities after the Peace of Westphalia in 1648. Prior to this, the agents of official communication among the feudal rulers (emissaries, messengers, etc) did not possess the character of permanent representatives nor did they enjoy the range of immunities they have today. Prior to 1815, rules for diplomacy were based on customs. The Congress of Vienna in 1815 (which ended the Napoleonic wars) was the first attempt at codifying these rules and classifying the ranks of diplomatic agents. In contemporary international law, the 1961 Vienna Convention on Diplomatic Relations is the most authoritative statement of rules governing diplomatic relations. However, any questions regarding diplomatic relations not covered by the Vienna Convention are covered by existing customs. Let us examine some of these rules:
Right of Representation
Only sovereign states (not international organizations) possess a right of representation. This right has two components:
1. Active Right: This includes the authority to send diplomatic agents abroad. Who qualifies as a diplomatic agent is a matter for the domestic law of the sending state.
2. Passive Right: This is the right to receive diplomatic agents from other states.
Normally, a state that possesses an active right would also possess a passive right but this is not always the case, particularly for states that for various reasons are not fully recognized (see Unit 5 on recognition of states and governments).
Diplomatic Missions
Official diplomatic missions ('embassies', 'high commissions', and 'consulates') can be established only by the mutual agreement of the states involved. Diplomatic relations can, however, be severed unilaterally. The receiving state's consent is required for the selection of the head of the diplomatic mission (usually at the rank of 'ambassador'), but not necessarily for subordinate staff of the mission. The receiving state may at any time declare a diplomat of a sending state persona non grata (unacceptable person) and demand that the sending state withdraw him/her (Article 9, Vienna Convention)
The 1961 Vienna Convention on Diplomatic Relations (article 14) lists three categories of heads of diplomatic missions:
1. Ambassadors (also called 'High Commissioners' in Commonwealth counties) and Papal Nuncios (representatives of the Vatican)
2. Ministers, Special Envoys and Papal Internuncios
3. Chargés d'affaires
The first two are accredited to Heads of State; the third is accredited to Ministries of Foreign Affairs.
Today, states normally exchange diplomats of equivalent rank (as a symbol of recognition and of sovereign equality) irrespective of differences in size, wealth and capability. This was not always the case, however. In the past, states that were more powerful sometimes refused to exchange diplomats of equivalent rank with states considered inferior in status.
Functions of Diplomatic Agents
Article 3 of the 1961 Vienna Convention lists the following as the main functions of diplomatic missions:
1. Representing the sending State in the receiving State;
2. Protecting in the receiving State the interests of the sending State and of its nationals, within the limits permitted by international law;
3. Negotiating with the Government of the receiving State;
4. Ascertaining by all lawful means conditions and developments in the receiving State, and reporting thereon to the Government of the sending State;
5. Promoting friendly relations between the sending State and the receiving State, and developing their economic, cultural and scientific relations
The New Diplomacy
The 'new diplomacy' reflects the innovations in communication technologies that have produced changes in the nature and functions of diplomacy and diplomats. This has resulted in a reduced role for ambassadors and permanent missions generally and an increased role for Special Envoys, foreign ministers and those with special technical skills. In addition, heads of state have become more directly involved in diplomacy. We can identify three broad areas where these changes are most visible:
· Shuttle Diplomacy: US Secretary of State Henry Kissinger initiated this new type of diplomacy in 1974. It involves a third party interceding in a dispute between two or more states and trying to broker a settlement.
· Summit Diplomacy: This refers to the regular meetings between heads of state/foreign ministers. Good examples are the G8 and G24 annual summits
· Conference Diplomacy: This reflects the growth in multilateral conferences, usually sponsored by the UN. Some of these conferences are held on a fairly regular basis. For example, the UN conferences on the environment and development held every 10 years since 1992 (we discuss this in Unit 12).
Diplomatic and Consular Immunity
Diplomatic personnel of sending states are subject to and expected to obey the laws of the receiving state (prescriptive jurisdiction); however, they enjoy a wide range of immunities from the enforcement jurisdiction of the receiving state. These immunities cover diplomatic premises, and diplomatic personnel, their families and residence. In effect, with diplomatic immunity receiving states agree to tolerate 'islands of foreign sovereignty' within their territory, and as sending states, to extend 'islands' of their sovereignty into other states (so called 'extraterritoriality). This is necessary because obtaining and facilitating stable and secure communications among states is a pillar of the international society of states. So well respected are these rules that overt violations are rare because it is in the self-interest of all states to respect these rules. One notable exception was the taking of hostages at the US embassy in Tehran, Iran in 1979. The 1961 Vienna Convention on Diplomatic Relations lists the following immunities:
Diplomatic Premises
Article 22:
1. The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission.
2. The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.
3. The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution.
Article 23:
The sending State and the head of the mission shall be exempt from all national, regional or municipal dues and taxes in respect of the premises of the mission, whether owned or leased, other than such as represent payment for specific services rendered.
Diplomatic Personnel
The key to understanding the kinds of immunities diplomats enjoy lies in the distinction between criminal jurisdiction andcivil/administrative jurisdiction, and the distinction between official property/actions and unofficial property/actions. Generally, criminal jurisdiction involves arresting, prosecuting and imprisoning offenders. With civil/administrative jurisdiction on the other hand, offenders are required to pay some kind of damages (fines, penalties, etc). Official property/actions include property owned by the sending state (including the private residences of its diplomats in the receiving state), and actions carried out by the diplomats as part of their official duties. Private property/actions include property privately owned by diplomats and any actions they may engage in outside their official duties.
Diplomatic personnel enjoy at all times absolute immunity from the criminal jurisdiction of the receiving state. Here, there is no distinction between official and unofficial:
Article 29:
The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.
The distinction between official/unofficial is only relevant when it comes to the civil jurisdiction of the receiving state. Here, diplomats of the sending state enjoy immunity from civil/administrative jurisdiction only for official duties and property. Immunities do not cover private property, inheritance, or commercial/ professional activity by a diplomat outside official duties:
Article 31:
A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:
1. A real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission
2. An action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State
3. An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions
However, although diplomats are subject to the receiving state's civil/administrative jurisdiction in the three exceptions listed in article 31, they cannot be forced to go to court if they are being sued, and if a penalty is assessed against them, they cannot be forced to pay.
Family Members of Diplomats
Article 37 (1) and (2) provide that the family members of a diplomat who are part of his/her household enjoy the same privileges and immunities, provided they are not nationals of the receiving State. Members of the administrative and technical staff of the mission, together with members of their families forming part of their respective households, shall, if they are not nationals of or permanently resident in the receiving State, enjoy similar privileges and immunities.
Immunities in Third States
A diplomatic agent passing through or in the territory of a third state, which has granted him/her permission to enter in order to take up or to return to the mission, or when returning to the sending state, is accorded inviolability and other immunities required to ensure transit or return. The same applies to any family members enjoying privileges or immunities who are accompanying the diplomat, or travelling separately to the diplomat or to return to their country.
Waiver of Immunity (Article 32)
Diplomatic immunity can be waived but only by the sending state. The sending state's waiver must always be express or explicit. If a diplomat is involved in a court case, he/she is deemed to have waived immunity from any counterclaim directly connected with the principal claim. A waiver of immunity from jurisdiction for civil or administrative proceedings does not imply a waiver of immunity from the execution of the judgement. In other words, a separate waiver of immunity is required before any court judgements are enforced.
Severing Diplomatic Relations (Article 45)
If diplomatic relations are broken off between two states, or if a mission is permanently or temporarily recalled:
1. The receiving State must, even in case of armed conflict, respect and protect the premises of the mission, together with its property and archives;
2. The sending State may entrust the custody of the premises of the mission, together with its property and archives, to a third state acceptable to the receiving state;
3. The sending state may entrust the protection of its interests and those of its nationals to a third state acceptable to the receiving state.
Consular Immunity
Consuls are similar to diplomats but they only perform 'non-political' duties (e.g., issue passports and visas, look after sending states' economic and trade interests, etc). Consulates (the premises housing the consuls) are usually located in regional cities and towns, while embassies are usually located in capital cities. A state that does not have official diplomatic relations with another state may nevertheless have consular relations.
The 1963 Vienna Convention on Consular Relations grants consular staff a range of immunities that are similar to, but not as extensive as, that enjoyed by diplomats. For example, like a diplomat, consular officers enjoy 'personal inviolability' from arrest and detention. However, unlike diplomats, consular officers can be tried and detained in cases where they commit a 'grave crime' as determined by the 'competent judicial authority' in the receiving state. (Article 41 and 42).
Special Cases
In 1979, following official recognition of the Peoples Republic of China (PROC) on the mainland and the establishment of diplomatic relations, the USA 'downgraded' its embassy in the Republic of China (Taiwan). The Taiwan Relations Act was passed to maintain 'unofficial' diplomatic relations as well as commercial, cultural, and other relations through an entity called the American Institute in Taiwan. This Institute functions as an embassy in all but name so as not to offend the PROC government.
International Organizations
International Organizations also enjoy some immunity usually specified in their constituent treaties (e.g. article 105(2) of the UN Charter). The UN, as the preeminent IGO, enjoys quite an extensive set of immunities: The UN Secretary-General and assistant Secretaries-General enjoy full diplomatic immunity. The Secretary-General can grant full immunity to 'special envoys'. Other UN personnel have more limited immunities. Representatives of member states at the UN enjoy the same range of immunities as regular diplomats.
Negotiation & Third Party Intercession
Figure 1 provides a diagrammatic representation of dispute settlement in international law. These can be divided into peaceful methods of dispute settlement (generally listed in UN Charter Chapter 6), and more forceful methods (generally governed by UN Charter Chapter 7). We focus in this unit on the peaceful methods. Unit 9 discusses the forceful methods (including peacekeeping). Peaceful dispute resolution includes various types of negotiation and adjudication.
Figure 1: Negotiation and Dispute Settlement in International Law
The UN Charter Provisions
Chapter 6 of the UN Charter (articles 33-38), entitled "Pacific Settlement of Disputes", sets out various measures states may take to settle disputes and prevent escalation of that dispute into open warfare:
Article 33(1) provides that all UN member states endeavor to settle disputes through first, negotiation, mediation, conciliation, arbitration, enquiry, judicial settlement, or regional organizations or agencies or other arrangements of their own choice.
Article 33(2): Authorizes the UN Security Council (UNSC) to call upon the parties to settle dispute through such means, and article 34 empowers the UN SC to investigate any situation/ dispute that might lead to a breach of international peace and security.
Article 35(1) provides that any member of the UN may bring a dispute before the UNSC or the UNGA, and article 36(1-3) empowers the SC to intercede into a dispute at any stage in order to recommend procedures for settlement (e.g. appoint a mediator, and pass ceasefire resolutions). Article 36 (3) provides as a rule that international disputes of a legal character, are dealt with by the ICJ.
Direct Negotiations
The vast majority of international disputes are settled by negotiations between the parties involved and not by judicial settlement. Indeed, this is true for most domestic legal systems. The International Court of Justice (ICJ) requires that before an issue comes to judicial settlement, there must be evidence that the parties have tried negotiations.
Negotiation is the chief instrument of international diplomacy. It may be defined as a process in which explicit proposal are exchanged to reach an agreement, or to realize a common interest, where conflicting interests are present. For negotiation to occur, therefore, there must be:
1. Issues of conflict/dispute between two or more parties (or there is nothing to negotiate about)
2. Common interests (or there is nothing to negotiate for).
These two conditions, however, are not always present. Thus, although most international negotiations occur directly between the disputing parties, sometimes, the intercession of a third party is necessary in order to facilitate negotiations between disputing parties. There are three types of Third-Party Intercession: Good Offices, Mediation, and Conciliation.
Good Offices
This occurs when a third party tries to persuade disputing parties to enter into negotiations. When the negotiations actually start, then the role of the third party ends. Thus with intercession under Good Offices, the third party does not actually take part in the negotiations. The third party which offers its good offices may be a state, an individual, a group of states, or an international organization. Examples of Good Offices include the role of the USA in 1973 after the 3rd Middle East war to bring the two sides to accept the terms of the ceasefire; and the role of Norway in facilitating negotiations between Israel and the PLO which culminated in the 1993 Oslo Peace Accords.
Mediation
A mediator is a third party that actually takes part in negotiations and suggests terms of settlement to the disputing parties. Parties to the dispute are not obliged to accept the recommendations of the mediator. A prominent example of successful international mediation was the role of US President Jimmy Carter during the Camp David negotiations between Israel and Egypt, which culminated in the Camp David Accords in 1978 and the Egypt-Israel Peace Treaty in 1979. Other (less successful) examples of international mediation efforts include UN Sec. Gen. DeCuellar's efforts to end the Iran-Iraq war (1980-1988); and the efforts of the UN to end the war in Afghanistan in 1988.
Conciliation
Conciliation is more formal than mediation. A conciliator is a third party that ascertains the facts and makes recommendations for a solution to the dispute. A conciliator usually issues only one report (whereas a mediator can formulate an infinite number of reports). As with mediation, the parties to the dispute are not obliged to accept the recommendations of the conciliator. Since WWII, numerous commissions of conciliation have been established by bipartite or multipartite agreements and conventions. An example of successful international conciliation was the "Commonwealth Group of Eminent Persons" established in 1978 to help solve the dispute between the warring factions in Rhodesia (now Zimbabwe). The civil war ended and Zimbabwe became an independent state in 1980.
Inquiry
This occurs when disputing states agree to appoint an impartial body to ascertain the facts surrounding the dispute in order to prepare the way for a negotiated settlement. Committees/Commissions of Inquiry do not take part in negotiations. In addition, they cannot make recommendations to solve the dispute. Their role is restricted to gathering information and evidence to determine the facts. States are not obliged to accept their findings. Many international disputes fester because of disagreements over the 'facts'. Thus, one of the keys to resolving these disputes is to find ways to uncover the facts as 'objectively' as possible. This is the primary function of committees of inquiry.
Examples of international inquiries include the International Civil Aviation Organization's (ICAO) inquiry into the shooting of Iran's flight 655 in 1988 by a US warship; and the efforts of a UN fact-finding mission to Iran in 1980 to investigate Iran's grievances against the USA after the takeover of the US embassy in Tehran in 1979. This UN effort was not successful; they were forced to leave after they were denied permission to visit the hostages at the US embassy. The UN Charter makes special provision for commissions of inquiry under UN auspices (Article 33), and UN General Assembly resolution 2329 (XXII) of 1967 urges member states to make use of this provision. UN Secretaries-General have lists of 'experts' and 'eminent persons' in a variety of fields for fact-finding missions.
Types of International Agreements
Not all international negotiations (direct and third party) end in a formal treaty. Informal agreements can ensue. States may seek different types of agreement via negotiation, and these can be placed in four broad categories:
1. Extension Agreements: These extend or continue an existing set of arrangements between the parties (e.g. tariff agreements).
2. Normalization Agreements: These terminate an abnormal situation between two or more parties (e.g. restoration of diplomatic relations).
3. Innovation Agreements: These create new arrangements that benefit the parties (e.g. creating the establishment of NAFTA).
4. Redistributive Agreements: These are the most difficult kinds of agreements to reach. Negotiations are usually protracted and difficult and often do not produce results satisfactory to all the parties. Redistributive agreements are often sought in situations described as 'Zero-Sum' conflicts. Here, whatever one-side gains, represents an equivalent loss for the other side, and thus when you add up their 'preferences' you get zero. For example, if state 'A' and 'B' are claiming the same 10 square mile piece of land, we can represent it in mathematical terms as 10 + (-10) = 0, hence the name zero-sum. Territorial disputes and disputes over natural resources are often perceived in zero-sum terms.
Judicial Settlement
There are two methods of judicial dispute settlement: Arbitration and Adjudication. The distinction between the two is not always clear-cut in international law, and there are important differences between arbitration and adjudication in international and domestic law:
1. In domestic law, arbitrators are appointed by the disputing parties (or by someone nominated by the disputing parties) whereas judges are appointed by procedures established under general law. This is not always the case in international law.
2. In domestic law, jurisdiction is conferred upon an arbitrator by agreement between the parties. Jurisdiction is conferred upon a judge by general law. In international law, this distinction does not apply. The jurisdiction of arbitrators and judges to hear a case can only be conferred by agreement between the parties to the dispute.
3. In domestic law, the parties can authorize the arbitrator to apply rules other than those of ordinary law (i.e., positive law). No domestic court can do so. In international law, given the relative lack of clarity in many rules of international law, there is nothing to prevent the parties authorizing the arbitrator or court to apply rules other than those derived from positive law.
Arbitration
This is one of the oldest and most prevalent forms of dispute settlement in the western legal tradition. Rules of international arbitration have evolved over time. Arbitration, like mediation and conciliation, involves third party intercession, but unlike the latter two, recommendations and decisions made by an arbitrator are binding on the parties to the dispute.
Rules of arbitration
1. The arbitrator/s should be freely selected.
2. Arbitrators must respect the rule of law and when making decisions, they must endeavor to come as close to the letter/spirit of the law as possible (either specified positive rules or unspecified rules of equity).
3. Parties to a dispute agree to accept the decision/award of the arbitrator and to carry out its provisions (except where the arbitrator violates rule b).
4. Under normal circumstances, there is no right of appeal against the decision of the arbitrator. (The arbitrator, however, may revise/reverse an award if new facts on the dispute surface).
An example of international arbitration was the Iran-USA Claims Tribunal established in 1981 as part of the hostage controversy between the two countries. By September 1989, this tribunal had awarded more than US$ 5.9b to US citizens and banks, and over $630m to the government and people of Iran. (However, these amounts represented only a fraction of the total claims of each side).
Adjudication: The International Court of Justice (ICJ)
The International Court of Justice is the successor to the Permanent Court of International Justice, established under article 14 of the Covenant of the League of Nations. In 1920, the PCIJ Statute was adopted and came into effect in 1921. In 1945, the UN and the ICJ replaced the League and the PCIJ. The PCIJ Statute was incorporated into statute of ICJ (with important additions).
Structure of the ICJ
The ICJ is one of the six central organs of the UN, and the principal judicial organ of the UN. (articles 92-96 of UN Charter). Together with UNSC and UNGA, it has responsibility for dispute settlement
The ICJ has 15 judges, with five elected every three years. Judges hold office for nine years. Nine judges (excluding the ad hoc judge), constitute a quorum. Judges are selected to represent all major legal systems in the world. States have right to appoint ad hoc judge for the particular case which that state is party to. States that are not UN members may become parties to the ICJ statute subject to conditions laid down by the UNGA; and recommendations of the UNSC (e.g. Switzerland, from 1947 until it became a UN member in 2002).
A special feature of the ICJ is the provision for ad hoc chambers of 3-5 judges (article 26-29 of ICJ Statute). Here, instead of the whole (15) court sitting to hear a single case at a time, 3-5 judges may form a chamber to deal with particular cases/categories of cases. Chambers can sit anywhere other than at HQ at the Hague. Decisions of a chamber are considered to be decisions of the full court. This enables the court to handle a larger number of cases and to adjudicate closer to the litigants (saves cost/time).
Operations
The Courts's jurisdiction comprises all cases referred to it and all other matters provided for in the UN Charter or in treaties. A submitted dispute must be justiciable, i.e., it must be capable of settlement by a judicial process/court. In addition, the dispute must be between the parties in question (i.e. a third party cannot bring a dispute between two other parties before the court). The court differentiates between advisory and contentious proceedings. Only states may file suits before the court for contentious proceedings.
Advisory Proceedings
Under article 96 of the UN Charter, the court is empowered to give advisory opinions to members of the UNGA, UNSC, and other UN organs and specialized agencies. Unlike judgements in contentious disputes, advisory opinions of the court are not binding.
Contentious Proceedings
Contentious proceedings are those in which the court is required to make a binding ruling on a legal dispute between states. The jurisdiction of the court in contentious proceedings depends on the consent of states, and this consent can take several forms:
1. Article 36(1) of the ICJ Statute specifies that the Court will exercise jurisdiction when all parties to the dispute jointly agree. However, there is a provision that each party may make a separate reference at separate times. Respondent states may accept jurisdiction after proceedings have started.
2. Article 36(1) also makes provision for states, through treaty provisions, to confer jurisdiction on the court.
3. Also in article 36(1) is the provision that the UNSC can recommend that parties to a dispute confer jurisdiction on the court. Recommendations of the UNSC in such instances, however, are not considered to be binding.
Optional Clause: This clause, article 36(2) & (3) of the Statute, emerged as a compromise between the advocates and opponents of compulsory jurisdiction for the ICJ. Article 36 (2) provides for compulsory jurisdiction. States may accept the compulsory jurisdiction of the court, without special agreement in relation to any other state accepting the same obligation (condition of reciprocity). Here, a state cannot enjoy the benefits of the optional clause unless it is prepared to accept the obligations (i.e. if state 'A' has accepted the optional clause, and state 'B' has not, state 'A' cannot be sued by state 'B' before the court).
Article 36 (3), however, permits reservations that limit the scope and applicability of the optional clause. Reservations may take the form of "State X accepts the court's jurisdiction except all matters within the domestic jurisdiction/national security of state X, as determined by state X". Such reservations appear to contradict art 36(6), which states that in the event of a dispute as to whether the court has jurisdiction, the matter shall be settled by the court. This kind of reservation is known as automatic reservation. Only a handful of states, including the USA and Mexico have made this type of reservation. The majority of UN members that have accepted the optional clause have done so under the condition of reciprocity.
Decisions and Enforcement
Judgements of the court are binding on the parties to the dispute. Article 94 of the UN Charter authorizes the UNSC to enforce judgements of the ICJ. As of the beginning of 2013, these powers had never been used. However, it could be argued that the problem of enforcement should not arise because if a state is willing to accept the jurisdiction of the court, then it should be willing to obey the court's judgements. The real problem is not enforcing the court's judgements, but in getting states to accept its jurisdiction to adjudicate disputes in the first place.
