A Cornerstone of Modern Diplomacy

Britain and the Negotiation of the 1961 Vienna Convention on Diplomatic Relations

Kai Bruns

• Publisher: Bloomsbury Academic
• Year: 2014
• Print ISBN: 9781501316319
• eBook ISBN: 9781628921557
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Diplomacy & Treaties
• Index: Politics & International Relations

The Vienna Convention on Diplomatic Relations (VCDR) was signed at the height of the Cold War more than fifty years ago. The agreement and its negotiation have become a cornerstone of diplomatic law. A Cornerstone of Modern Diplomacy, which is based on archival research in the National Archives (London), the Austrian State Archives (Vienna) and the Political Archive (Berlin), delivers the first study of the British policy during the negotiation of the key convention governing diplomatic privileges and immunities: the 1961 Vienna Convention on Diplomatic Relations. The book provides a complete commentary on the political aspects of the codification process of diplomatic law. By clearly presenting the case with accessible analysis, author Kai Bruns makes the relations between international law and politics understandable, stressing the impact of the emergence of the third world in UN diplomacy. This unique study is a crucial piece of scholarship, shedding light on the practice of United Nations conference diplomacy and the codification of diplomatic law at the height of the Cold War.

Part One

The Preparatory Stage: 1949–60

1

Codification of International Law: Organs and Procedures

After the First World War, codification of international law became institutionalized by the League of Nations. However, while its efforts led to a more organized approach on codification it was not altogether successful and, eventually, halted because the preparatory process had failed to produce a balanced draft convention for the first codification conference, The Hague Codification Conference in 1930. Until the First World War, codification was mostly in the hands of international jurists or private international organizations such as Johann Caspar Bluntschli or the Institute of International Law, respectively. With the end of the First World War and the establishment of the League of Nations, the codification of international law became organized on an intergovernmental level.¹ In so doing, the League of Nations instructed a Committee of Experts to prepare a provisional list of the subjects on international law of which codification, by international agreement, would seem to be most desirable and realizable. The basis for this evaluation was a detailed questionnaire on matters drawn from a provisional list of subjects which were determined in subcommittees, normally staffed with one rapporteur and assisted by another international jurist. However, there was little communication between the Committee members and governments and the feedback on the questionnaires was of limited value for a balanced codification since the responses were kept general and did not include specific information on detailed practices. This absence of diplomatic spadework was partly because, to that time, international law did not occupy any significant place in the diplomatic exchange between states, but also because governments were not particularly motivated to reveal their diplomatic practices. As a result, the 1930 The Hague Codification Conference negotiated the selected three subjects on a set of bases for discussion which only reflected the views of individual experts but did not constitute a politically and scientifically sophisticated draft convention. The basis for discussion lacked the precision necessary to reach a satisfactory agreement, and eventually the remoteness of the preparatory work from diplomatic realities led to the practical failure of the first international conference convened for the codification of international law.²

The Hague Codification Conference was judged superficial at any rate because it was too remote to both the status quo of International Law and the extent to which codification was politically possible.³ As a result, a more cautious approach on codification was taken in preparation for future conferences via the originally semi-professional, part-time-working International Law Commission (ILC). The successor organization of the League of Nations, the United Nations, included the initiation of studies on the codification and progressive development of international law in Article 13 of its Charter. This made the study of international law an integral part of the work of the United Nations in the hope of ensuring its scope and increasing its effectiveness in creating a sound legal system. Therefore, after the Second World War codification fell mainly under the responsibility of the ILC, a sub-organ of the United Nations General Assembly (UNGA), which was, regarding its working procedure, a compromise solution of two prevailing views of codification of international law after 1945.

The ILC, created as a permanent institution, was the first one authorized primarily for the codification (and progressive development) of public international law. During more than 50 years, the ILC had worked almost exclusively on the codification of public international law, to its greatest achievements counting the drafting of the Vienna Convention on Diplomatic Relations (1961), the Vienna Convention on the Law of Treaties (1969) and the Vienna Convention on Succession of States in Respect of Treaties (1978). It has also worked in the field of the ILC, formulating the principles for the Nuremberg Tribunal in 1950, drafted the Statute for an international Criminal Court in 1994 and a Code of Crimes against the Peace and Security of Mankind in 1996. Only towards the end of the millennium, the ILC started also being involved more often in the codification of private international law.⁴

However, in the early years of the ILC many questions regarding its work and working procedure still stood open. The experience of the failure of the 1930 The Hague Codification Conference led to divergent interpretations of how the future work of codification should look. So, in the late 1940s it was not yet clear how the United Nations should comply with its obligations under Article 13 of the Charter. By the end of the 1940s, one of the most influential private institutions on the study of international law of the time, the Institut de Droit International, estimated in 1947 that, for the time being, the most important contribution to the codification of international law was to perform, on national and international level, scientific research in order to correctly calculate the current state of international law. Doing so, a doctrinal base could be set from which gaps in international law could be filled.

This view was supported by British international jurists and particularly by the then president of the renowned Grotius Society, Sir Cecil Hurst, who pleaded for the codification of international law on new lines. Through his work as former Foreign Office (FO) legal adviser as well as judge and president of the Permanent Court of International Justice, he was very familiar with the interwar work and recognized that there were still many points in international law on which no universal acceptance existed or on which no international practices had yet developed. Therefore, according to Hurst, the strict sense of codification was to ascertain and define the limitations of international law, declaring the existing rules of international law but not formulating how rules of international law ought to be (as it had been practice in the past under the guidance of the League of Nations). However, the latter was, according to Hurst, the automatic consequence of codification by international conferences in which national needs were too often in opposition. This was, for Hurst, the misfortune that contributed to the failure of the 1930 The Hague Conference. Regarding the practice under the League of Nations, Hurst pointed out that the work was too vast for one man and that the task could not be done on an individualistic base. On the other hand, some states criticized rather the remoteness of the preparatory documents than opposing national interests during the final diplomatic stage of the 1930 attempt at codification. Therefore, there was powerful political support, inter alia stemming from the Soviet Union, for a greater influence of governments on the codification process in order to avoid too theoretical and unpractical a draft provision being produced in the preparatory stage. As a result, preparations were to be conducted within an institutional framework which would allow for the in-depth involvement of governments.

Evolution of the ILC, 1947‒60

It was in this light that the Statute of the ILC was drawn up in 1947 providing for a preparatory codification process in which calm scientific research and governmental involvement went hand in hand. The idea behind the UN effort was to refashion the classic notion of international custom through codification which sought to make the law more effective in order to support the very conceptive idea of the United Nations itself, the maintenance of international peace and security.⁵ As a result, the ILC was instructed to discover the real needs of the international community in the field of codification and progressive development of international law. Or put in other words, its mission equalled a quantum leap in which the ILC commissioners were to strike a balance between the need for improvement of international law by progressive development and the need for stability secured by codification.

In doing so, the Statute of the ILC drew on past experience containing a number of provisions which strengthened the reciprocal relations between the ILC and governments. The Statute gives a concrete role to each of these actors, providing for routine procedure in the codification process. Consequently, it became usual procedure that, first, research was organized by the ILC as an independent group of experts, whose drafts and recommendations, at this stage, were still non-binding for governments, before the preparatory stage was concluded by a recommendation of the ILC to the UNGA for the appropriate form of codification. The second phase became a diplomatic one in which every member state had the possibility to participate directly in the negotiations, often (but not exclusively) taking the form of an international conference of plenipotentiaries.

The ILC, however, was not a finished product and underwent considerable change in size and composition, particularly during the first two decades of its existence. The founding fathers of the Commission were guided by the principle to create an international organ which was small enough to be efficient but also big enough to represent the principal legal systems of the world. However, political aspects were important, too. Hence, all five permanent members of the Security Council wanted a seat, leaving little room for other members. As a result, proposals for nine, eleven and thirteen commissioners could not be adopted as it would have made the Commission too Eurocentric. Eventually, the Committee on the Progressive Development of International Law agreed to start with a rather intimate group of 15 commissioners.⁶

Nevertheless, the size of the Commission remained an issue. Soon after the UNGA elected the first commissioners of the ILC in 1948, two things become obvious. First, the small Commission was facing a daunting task and was, from the very beginning, overloaded with work. Secondly, its composition reflected very little the ongoing changes within the United Nations, particularly since the 1955 en bloc enlargement of the United Nations.⁷ While until 1954 only nine new Member States joined the 51 UN ‘Charter members’, in the years between 1955 and 1960 UN membership increased by 40 states. In this process particularly the recently independent Afro-Asian states benefitted from the widening of UN admissions. In order to comply with the claim to represent all major legal systems of the world, there were two options which could be followed. In order to give a fair involvement to the newly independent states, the Commission would either enlarge its number of commissioners or redistribute their seats. Redistribution was favoured by the Soviet Union, aiming for a greater representation of African-Asian but also communist states. This, however, would have meant that the Western powers would need to lower their share. Therefore, the US-led West, which could count on a comfortable majority in the UNGA during the 1950s, promulgated for enlargement of the Commission and the UNGA adopted a resolution increasing the ILC’s size from 15 to 21 members.⁸ Political aspects rather than legal ones were also the driving force behind a second enlargement in 1961. Similarly to 1956 when the Sixth Committee of the General Assembly reached an agreement regarding the allocation of seats among the regional groups in the ILC, it was the West who saw in enlargement the only possibility to maintain its influence in the ILC. It was a time when the United States was still confident in securing allies in the broader international system and, hence, expected to benefit more than the communist East from the enlargement of the Commission, in particular from the addition of representatives from Asian-African countries.

Moreover, the Commission did not only grow larger, its individual composition also started to change considerably soon after its establishment, introducing a political aspect to the work of the Commission. While the first commissioners were mostly international jurists and academic scholars, by the 1956 election this had changed and a great many of the ILC commissioners were professional diplomats who worked in the legal departments of their respective FOs. The Statute of the ILC did n...

Table of contents

• Cover
• Half-title
• Introduction
• Part 1 The Preparatory Stage: 194960
• Part 2 The Diplomatic Stage: 19614
• 7 Conclusion
• Appendix I: Overview of the 1961 Vienna Convention and the 1958 Draft Articles
• Appendix II: Voting results in Committee and Plenary
• Appendix III: Whos Who
• Bibliography
• Index