A Cornerstone of Modern Diplomacy: Britain and the Negotiation of the 1961 Vienna Convention on Diplomatic Relations 9781501302022, 9781628921540

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To Freya

List of Figures and Tables Figures 5.1 5.2 5.3 5.4

Voting blocs at the Vienna Conference Amendments and proposals in the Committee VCDR content overview Number of delegations engaged in article discussions

112 113 115 122

Tables 5.1 5.2 5.3 5.4 5.5 5.6 6.1 6.2 6.3 6.4 6.5 6.6 6.7

Compulsory settlement of disputes Inviolability of mission premises Preamble Final clauses Freedom of communication Persons entitled to privileges and immunities Classes of heads of mission Non-discrimination Acquisition of nationality Size of mission Exemption from taxation Exemptions from customs duties and inspection Duration of privileges and immunities

124 128 132 136 139 145 172 174 176 177 180 183 185

Acknowledgements My interest in the Negotiation of the 1961 Vienna Convention on Diplomatic Relations was stimulated by Dr Lorna Lloyd. I owe her a great intellectual debt. She provided invaluable advice, commented thoughtfully on the draft chapters and shared her academic expertise and editorial experience throughout all stages of the writing process. The writing of this book has been almost entirely done during my PhD research at Keele University. I am grateful to the university, which extended funding for my PhD research and, thus, enabled this project in the first place. Also, I am particularly appreciative to Dr Helen Parr, Professor John Young, Professor Bülent Gökay, Professor Alan James and Professor David Long for their enriching ideas and comments at different stages of research. Thanks remain also due to Bloomsbury’s editorial team, particularly Matthew Kopel and Kaitlin Fontana. I want to thank Michael Martens and Andreas Heye for their invaluable assistance and encouragement. Moreover, I would like to express a huge thank you to Daniel Bosley and Casey Casler, who turned a multitude of my German-soaked English sentences into nice and neat English. Any that remain are, of course, my own responsibility. My greatest appreciation goes to my wife, Freya, for her support, love and tolerance during the writing of this book. Kai Bruns Dubai December 2013

Abbreviations AJIL ASA BCE BIR BoT BYIL CRO DEA DO DUS FAO FCO FO FRG GPO Great powers HC HCO HMG ICJ IIL ILC ILC draft

ILO INA LCO MPNI

American Journal of International Law Austrian State Archive, Vienna Board of Customs and Excise Board of Inland Revenue Board of Trade British Year Book of International Law Commonwealth Relations Office Department of External Affairs Dominions Office Deputy under-secretary Food and Agriculture Organization of the United Nations Foreign and Commonwealth Office Foreign Office Federal Republic of Germany General Post Office The five permanent members of the United Nations Security Council High Commissioner High Commissioner’s Offices Her Majesty’s Government International Court of Justice Institute of International Law International Law Commission The International Law Commission’s draft Articles on Diplomatic Intercourse and Immunities, adopted at its tenth session, 28 April–4 July 1958 International Labour Organization Irish National Archives, Dublin Lord Chancellor’s Office Ministry of Pensions and National Insurance

Abbreviations NAC PUS Set of provisional drafts

Sixth Committee T TNA TPA UAR UK UN UNCDII UNESCO UNGA USA USSR VCDR Vienna Conference Vienna Convention YBUN YILC

xiii

National Archives of Canada, Ottawa Permanent under-secretary Provisional draft Articles on Diplomatic Intercourse and Immuni-ties, adopted by the International Law Commission at its ninth session, 23 April–28 June 1957 The Sixth (Legal) Committee of the United Nations Treasury The National Archives: Public Records Office, Kew The Political Archive, Berlin United Arabic Republic United Kingdom United Nations United Nations Conference on Diplomatic Intercourse and Immunities United Nations Educational, Scientific and Cultural Organization United Nations General Assembly United States of America Soviet Union Vienna Convention on Diplomatic Relations, 1961 United Nations Conference on Diplomatic Intercourse and Immunities, 1961 Vienna Convention on Diplomatic Relations, 1961 Yearbook of the United Nations Yearbook of the International Law Commission

Introduction

The Vienna Convention on Diplomatic Relations (subsequently referred to as the VCDR or Vienna Convention) deals with one of the oldest subjects in the field of international law: diplomatic privileges and immunities. Some of its fundamental aspects, for example, those regarding precedence and classes of heads of mission, received their first codified form in 1815 at the Congress of Vienna while others have grown and evolved over centuries as part of international customary law. Although the Vienna Convention could never perfect the practice of diplomatic relations, politicians and diplomats alike had high hopes that the Vienna Convention could help avoid friction via the codification of established rules, and the clarification of those aspects of law where universal practice had yet to be established. When, in 1964, the British House of Commons gave a second reading to the Diplomatic Privileges Bill, Robert Mathew, the Under-Secretary of State for Foreign Affairs, anticipated that: There is now every prospect that the Convention will achieve universal acceptance by the nations of the world. Her Majesty’s Government ha[s] consistently supported the work of the United Nations in the sphere of international law, and we are now glad to be able to welcome this Convention as one of its most valuable contributions to the development of the international rule of law.1

This statement implies that, for the United Kingdom, the Vienna Convention was more than just the codification of a fundamental aspect of international life. The codification of diplomatic practice was part of the development of international law and the establishment of codified rules which were to be universally accepted.

1

Robert Mathew, in Hansard House of Commons Deb., 01 July 1964, vol. 697 colony 1359. See http://hansard.millbanksystems.com/commons/1964/jul/01/diplomaticprivileges-bill-lords, 28/11/2013.

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A Cornerstone of Modern Diplomacy

But embarking on the codification of diplomatic relations was a hazardous task which could have been caught up in the political quarrels of the time. By the early 1960s, the Cold War confrontation between East and West had reached another intense peak. While the division of Europe had been taken as the accepted state of affairs, highlighted by the dangerous crisis of the erection of the Berlin Wall in 1961, the ideological confrontation between socialist values on the one hand and capitalist ones on the other entered into a dramatic phase. In several circumstances in a clash between the opposing powers, such as the ‘eye-to-eye’ confrontation during the 1962 Cuban missile crisis but also in proxy (war) confrontations, say, in the former Belgian Congo and Vietnam, the conflict had spread outside Europe and turned into a global concern. Thus, the early 1960s were years of contest and mutual distrust which was reflected in general suspicion and a loaded international atmosphere. Interestingly, however, certain United Nations conventions negotiated during the early 1960s entered into force with significant speed and wide participation. Three of the most important instruments adopted during the first 15 years of UN codification efforts were the Geneva Conventions on the Law of the Sea (1958 and 1960), the 1961 Vienna Convention on Diplomatic Relations and the 1963 Vienna Convention on Consular Relations. The main legal instruments of all these law-making conferences came into force within as little as four to six years, which is a swift period compared to later international law-making conventions. Significantly, all three dealt with aspects of international relations in which the two opposing superpowers, the United States and the Soviet Union, came almost on a daily basis into physical contact. As a result, the codification of basic rules of international law had risen on the international agenda because it met a pressing international need. In diplomatic practice, international custom had proved too vague and could not keep step with technological advancements and the increasing number of states within international society. This was true particularly for the practice-orientated subjects of diplomatic and consular relations. The Vienna Conventions supplied a basic but specific law code for inter-state contacts and specified, as well as adapted, where necessary, international customs in order to avoid friction particularly in times of high tension and suspicion. In 2014, when the Vienna Convention celebrates the 50th anniversary of its coming into force, it will be almost universally accepted, with 187 states parties to it (the United Nations has 193 members to the time of writing), and Singapore (4/2005), Monaco (10/2005) and the Maldives (10/2007) being its newest parties. The high degree of acceptance is an expression of its recognition in diplomatic law and makes the VCDR the primary source

Introduction

3

of reference, or to say it in the words of Eileen Denza: ‘a cornerstone of the modern international legal order’.2 The progressive codification of diplomatic law was an event of exceptional political and legal significance, coming as it did, shortly after the end of the Second World War, at the height of the Cold War, and amid the on-going process of decolonization. The Vienna Convention was part of a wider process in which states under the auspices of the United Nations strove for the codification of international law in order to clarify customary law and strengthen its global acceptance. After the Second World War, the United Nations, as the successor organization of the League of Nations, included the assumption of studies on the codification and progressive development of international law in Article 13 of its Charter. Article 13 made the study of international law an integral part of the work of the United Nations in the hope to ensure its scope and effectiveness creating a sound legal system securing peace and security between states. In practice, the scientific and legal organs carrying out this task hand in hand have been the International Law Commission (ILC) and the Sixth (Legal) Committee of the United Nations General Assembly. During its first session in 1949, the ILC selected the matter of ‘diplomatic intercourse and immunities’ as one of the 14 topics on which codification was considered necessary or desirable.3 Of these 14 topics, the Commission accorded priority status to the systematic study and codification of three topics. Unlike the issues of the law of treaties, arbitral procedure and the regime of the high sea, no priority status was initially accorded to the codification of diplomatic intercourse and immunities. Meanwhile in 1952, because of serious violations of the rules of diplomatic custom by the Soviet Union, the Yugoslavian representative introduced a draft resolution in the Sixth (Legal) Committee regarding the codification of diplomatic intercourse and immunities. At the 1952 United Nations General Assembly, the United States supported Yugoslavia and supplied evidence of Soviet diplomatic misconduct and pressed for priority to be given to codifying diplomatic practice. This was partly because it wanted to protect US diplomats and also to land another propaganda strike against the Soviet Union.

2

3

Denza, E., Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations, 2nd edn paperback (Oxford: Oxford University Press, 2004), p. 1. It was under the term ‘diplomatic intercourse and immunities’ that the codification started and only at the Vienna Conference in 1961, on the suggestion of the British delegation, it was decided to replace the ambiguous term ‘intercourse’ for the more neutral concept of ‘relations’.

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A Cornerstone of Modern Diplomacy

The discussion led to the adoption of General Assembly resolution 685 (VII), which requested priority status for diplomatic intercourse and immunities.4 It was only two years later, however, that the ILC granted diplomatic intercourse priority status putting it on the agenda for its 1954 session. During this session, the ILC appointed the Swedish commissioner, Emil Sandstroem, special rapporteur on the codification of diplomatic privileges and immunities. The heavily overloaded working schedule of the ILC and the election of new commissioners and enlargement of the Commission in 1956 resulted in a delay, meaning that a systematic debate on the special rapporteur’s first set of provisional drafts could not take place until 1957. As time elapsed, the political motivation behind codification cooled off and the United States became opposed to adapting its own diplomatic practices in an internationally binding convention. In terms of procedure, it must be stressed that codification by convention was not the only available alternative, and during the codification process there were times during which the ILC commissioners were in doubt about the final articles’ content and legal form. Initially, the British Foreign Office (FO) legal adviser who sat on the ILC, Sir Gerald Fitzmaurice, worked with other commissioners towards producing a draft text reducing diplomatic immunities on the basis of the functional necessity theory. During the preparatory negotiations in the ILC, it became increasingly clear that the majority of commissioners favoured a codifying convention to be agreed upon at a conference held under UN auspices. Fitzmaurice did not favour this. Influenced by the difficult negotiations during the 1958 Law of the Sea conference, which had closed shortly before the ILC’s 1958 session, Fitzmaurice pleaded that codification should be in the form of a United Nations General Assembly (UNGA) resolution. But by then Anglo-American influence in both the ILC and the UNGA could prevent neither the ILC forwarding its draft Articles to Member States nor the General Assembly calling a conference to codify the law. This change in final legal form of codification required Her Majesty’s Government to deal differently with the draft articles of the ILC during the preparatory stage of codification. In its commentary on the 1957 ILC draft, the FO had outlined British practice in order to indicate agreement or disagreement with the draft Articles; in its commentary on the revised 1958 ILC drafts, the FO suggested changes due to difficult passages in the draft, weaving in, tapestry-like, its amendments. These had been the outcome of a difficult balancing act covering Britain’s interests as both a sending and a 4

The General Assembly Resolution was adopted by 42 votes to 5, with no abstentions.

Introduction

5

receiving state. The Treasury had a particularly strong interest in the fiscal draft Articles but the Home Office and the Lord Chancellor’s Office each had something to add, too. It was the FO’s task to determine which interests had to be defended or, if need be, sacrificed. In other words, the FO had to coordinate the interests of all interested Departments and find the highest common denominator over what was legally necessary and diplomatically feasible. By virtue of UNGA resolution 1450 (XIV) of 1959, the United Nations Conference on Diplomatic Intercourse and Immunities (UNCDII) was convened for no later than spring 1961. In terms of structure and proceedings, the conference followed the tradition of international conferences under the auspices of the United Nations during the late 1950s and early 1960s. The conference was subdivided into meetings in Plenary, meetings of the Committees of the Whole and functional Committees such as the General Committee, the Credentials or the Drafting Committee. The main negotiations took place in the meetings of the Committees of  the Whole in which all conference participants were members. Whereby the number of these Committees of the Whole depend on the scope and variety of the conference agenda, the 1961 Vienna Conference sat in one Committee of the Whole only, thanks to the compactness of the topic. In its composition, the Committee of the Whole resembled that of the Plenary. It differed, however, in voting procedure and had different presiding officers who needed to be elected at the beginning of the Conference. The positioning of candidates in presiding posts or in influential conference committees was a matter of conference influence and generated politically driven interest conflicts. Therefore, at the Vienna Conference, particularly the first Conference days had the potential to raise political controversies. In the run-up to the Vienna Conference, public awareness for the subject was scant and, contrary to what might be expected given the general international atmosphere, the negotiation of the Vienna Convention was remarkably free from East‒West discords. Codification of diplomatic relations, as a set of basic rules of general conduct, was in the interest of the great majority, if not even all, 81 participating states. This common interest led to a constructive and positive Conference atmosphere in which delegations agreed unanimously on a majority of Articles and concluded a convention whose success is reflected in the high number of signatory parties as well as its speedy coming into force and its on-going acceptance until 50 years after its adoption. But as in all negotiations, there was also conflict at the Vienna Conference. Heated conference negotiations included the discussion of the obligatory settlement of disputes, the inviolability

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A Cornerstone of Modern Diplomacy

of mission premises, the preamble and final clauses, and the freedom of communication. The most controversial Article of the Convention was Article 37 on the privileges and immunities of non-diplomatic staff due to varying diplomatic practice and a progressive step in codification which the ILC had embarked on. The increase in United Nations membership and the influx of AfroAsian states in the 1950s and early 1960s influenced numeric majorities at United Nations conferences in general, and at the 1961 Vienna Conference in particular. This numeric majority was significantly counterbalanced by the leadership provided by the British delegation. As representatives of one of the five great powers (the five permanent members of the UN Security Council), the British delegation was led by, and mainly composed of, legal experts who were well-qualified lawyers and good negotiators which allowed them to enter the inner Conference circle. The British delegation matched the composition of other influential delegations, such as the Soviets and the Swiss. In addition to the excellent conference manner and legal expertise of its chief delegate, Francis Vallat, the British delegation excelled in its knowledge of the relevant political and legal aspects concerned in the negotiation and maintained a web of cooperation and communication with a large number of delegations. Hence, the British delegation became an information hub and counsellor inside and outside of the official Conference structure, enabling it to provide valuable leadership that especially extended to Afro-Asians who were linked to Britain through the Commonwealth. Together with the Soviets, the British delegation was the most influential delegation at Vienna. It was well briefed and had a clear idea of the amendments that it wanted to have made to the ILC draft. Most of Britain’s aims were achieved and the British delegation left Vienna satisfied with the outcome. Yet the delegation did not achieve all of its objectives. In two of the final Articles, hitherto much-valued British principles were amended to the disadvantage of the receiving state. In addition, two fiscal points could not be adapted to the complete satisfaction of the UK Treasury, and, while the FO was reluctant about making reservations to the Vienna Convention on Diplomatic Relations, the Treasury refused to extend custom and tax privileges. What followed was a two-and-a-half-year-long interdepartmental conflict which delayed Britain’s ratification of the VCDR and the Optional Protocol on the Settlement of Disputes until September 1964, almost three months after the Vienna Convention had entered into force on 24 June 1964.

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 1

For further details, see R. Langhorne, ‘The Regulation of Diplomatic Practice: The Beginnings to the Vienna Convention on Diplomatic Relations, 1961’ (1992) 18, Review of International Studies (Langhorne (1992)).

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A Cornerstone of Modern Diplomacy

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 2

3

S. Rosenne, ‘Relations between Governments and the International Law Commission’ (1965), The Year Book of World Affairs, pp. 188–98 (Rosenne (1965)), pp. 184–90. S. Rosenne, ‘Codification Revisited after 50 Years’ (1998), Max Planck United Nations Yearbook, pp. 1–22 (subsequently referred to as Rosenne (1998)), p. 1.

Codification of International Law

11

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 4

United Nations Secretariat, Codification Division, Office of Legal Affairs, The Work of the International Law Commission (New York: United Nations, 2007) (United Nations (2007)), pp. 7–8.

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A Cornerstone of Modern Diplomacy

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 5

Rosenne (1970), p. 26.

Codification of International Law

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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 6

7

8

J. Morton, The International Law Commission of the United Nations (Morton (2000)) (Columbia: University of South Carolina Press, 2000), pp. 7–8. The 1955 ‘package deal’ broke the previous deadlock on UN membership admissions and enabled 16 states to enter simultaneously the United Nations on 14 December 1955. While the United States gave up its hostile position against the admission of proSoviet states, it was possible to welcome an even greater number of pro-Western states. United Nations Secretariat, Codification Division, Office of Legal Affairs, YBUN: 1960 (New York: United Nations, 1960) (YBUN (1960)), Appendices, Roster of the United Nations. In contrast, redistribution of seats rather than enlargement became the prevailing procedure according to which the judges in the International Court of Justice were appointed.

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A Cornerstone of Modern Diplomacy

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 not call upon particular professions and only required that members should be persons of recognized competence who should possess the qualifications necessary for the post. Therefore, although the founding fathers of the Statute decided that commissioners would sit in their personal capacity and remain independent from governments thereby avoiding political appointments and guaranteeing a scientific restatement of the law by independent experts, the Statute left the possibility open for commissioners to be directly linked to their home governments. Drawing their lessons from the past, the authors of the Statute had feared the ILC could become detached from reality without the guidance from national governments and, as a result, no such limitation was included in the Statute. For Britain, the independence of the ILC commissioners was a fiction and it expected the commissioners to receive instructions by their national governments. While Britain allowed its scholarly ILC members freedom on the substance, by the 1950s it had been practice to provide, at least, some general political guidance.9 Moreover, although membership in the ILC was officially a personal appointment, nationality mattered for both governments and individual candidates. Candidates for ILC membership were nominated by UN Member States governments who could put forward up to four candidates each in regular election. The candidate with the most votes was elected

9

Between 1949 and 1951, Professor James Leslie Brierly of Oxford was Britain’s ILC commissioner. He was followed by Professor Hersch Lauterpacht of Cambridge between 1952 and 1954. DHN Johnson (assistant legal adviser, FO), note for Anthony Eden (secretary of state for foreign affairs) on the International Law Commission, 9 May 1952, TNA, FO371/101403.

Codification of International Law

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to the Commission. During the lobbying and jockeying previous to such elections, it was very unlikely that a candidate would receive the necessary votes exclusively because of legal or academic merits. Rather it was because the candidate’s respective government managed to lobby most effectively in the run-up to the election. For instance, after the resignation of Abdullah El-Erian of Egypt as member of the ILC in 1958, the Turkish government and not Nihat Erim, the candidate himself, lobbied intensively with the British government to secure a majority for the Turkish candidate who was eventually to fill the casual vacancy in 1959.10 Of course, it is difficult for an individual to sell himself in front of the General Assembly, but the amount of lobbying hints at how important such nominations had become for national governments. In the 1950s, on both sides of the Iron Curtain, governments started to identify themselves with the success of their representatives in the Commission, recognizing the value of having a successful representative within the ILC; or even better, having someone taking the lead in the Commission, occupying one of the annually elected posts as chairman, vice-chairman, chairman of the Drafting Committee or general rapporteur. This was also true for Britain. When Sir Gerald Fitzmaurice, at that time legal adviser to the UK FO, was elected to chair the 11th session of the ILC in 1959, the British FO sent him a letter of congratulation. Although British officials recognized that such an appointment was a personal one, the FO did not fail to stress that such an honour also might be of value to the United Kingdom.11 Additionally, nationality was an important criterion for the geographical distribution of seats in the ILC. Although nationality is not a formal criterion for admission, Article 8 of the Statute (echoing the Statute of the International Court of Justice) regulates that the members of the Commission should be representative of the main forms of civilization and of the principal legal systems of the world. Therefore, the process of decolonization and the en bloc expansion of UN membership in 1955 influenced the composition of the ILC and led to the increase in membership from 15 to 21 in 1956.12 Much stress was laid on the integration of newly independent states; however, a D. M. Kitching (first secretary, FO), minute, 22 April 1959, TNA, FO371/145287. Kitching (FO), minute, TNA, FO371/145287. The chairman of the ILC not only coordinates the annual sessions of the ILC but also has representative tasks such as presenting the ILC’s annual report to the UNGA in the meetings of the Sixth Legal Committee. 12 Between the 21 members, seats were distributed as follows: five nationals of the Permanent Members of the Security Council, five Afro-Asian, two Eastern Europeans, four Latin Americans, four Western Europeans and one candidate of the Old Commonwealth. 10 11

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A Cornerstone of Modern Diplomacy

Gentlemen’s agreement on the distribution of seats in the Commission secured four seats for the Latin Americans who had to share a fifth seat with a candidate from the old Commonwealth, leaving no room for candidates from the newly independent African countries. De facto, the distribution of seats in the second era from 1957 to 1961 was that the Latin Americans were, with 4 out of 21 seats, similarly to the 8 out of 21 seats for European representatives, well represented. This distribution had been criticized by Asian representatives who expressed that even with four seats the Latin Americans were over-represented. In contrast, after the 1956 election, the Asian and, in particular, the Africans remained under-represented in the ILC. Particularly problematic was the case of the African representation as Africa was a hugely diverse continent ranging from Arab and Muslim states in the north, Europeanleaning legal systems in the south (deriving from British and Dutch colonial influences) and purely African states of a different kind in the middle. Despite this difficulty and because of the under-representation of the African legal system, Britain expected a second enlargement was to come shortly after the first one early in the 1960s. To the British FO, enlargement was the only way to maintain the share of commissioners from Western Europe. Enlargement was not only expected to bring in new members from Asia and Africa but also to influence power relations within the Commission. Thus, early on, Fitzmaurice calculated on another enlargement to 23 or 25 members and, unlike the Americans, Fitzmaurice expected this to ‘tilt the balance between East and West in favour of the former’,13 as particularly African members were likely to follow the Soviet lead. This shows again that the ILC, although formally an organ of experts originally detached from national influences, did not fully live up to its theoretical independence which, in practice, was considerably limited during the 1950s and early 1960s.

The Sixth (Legal) Committee of the UNGA In contrast to the ILC, the Sixth Committee of the UNGA is not a detached scientific body but, as one of the six Main Committees of the UNGA, a political organ to which all Member States are entitled to representation. Although there is no formal qualification required for participation in the Committee’s work, members of the Sixth Committee are normally trained lawyers commonly serving in their national legal or diplomatic service and 13

Kitching (FO), minute, 22 April 1959, TNA, FO371/145287.

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sit in this Committee as representatives of their country. Therefore, the representative’s statement reflects official positions, giving indications to all other participants of where friction can be expected in the future. The Sixth Committee starts its work by a general debate on the agenda items, followed by the discussion of the specific texts, such as draft resolutions or the report of the ILC on its annual session. The rapporteur of the Sixth Committee will then prepare a report to the General Assembly on the decisions taken by the Committee on each of the agenda items. On the basis of this information, the General Assembly in its Plenary session will take the final decision on the adopted draft resolutions or other texts such as the draft Articles of the ILC. The ILC is the Sixth Committee’s principal expert body, but despite their  organizational cooperation relations between them have been difficult. Even with the distinction of the function of the ILC as a scientific body and the Sixth Committee as a political organ, it can happen that membership is overlapping so that these experts are simultaneously representatives of their government in the Sixth Committee as well as independent experts in the ILC. Nevertheless, this does not mean that the Sixth Committee is involved in the planning of future work of the ILC and, according to a long-standing member of the ILC during the 1960s, for a very long time there was a great distance between these two bodies. Indeed, this was not least because of overlapping membership between the Commission and Committee, which impeded the latter institution from exercising ‘informed political control’ over the former. As a result, the Committee tended in the 1950s to endorse the Commission’s proposals without questioning their ‘political implications and viability’.14 The remoteness of these two major bodies in the codification of international law, resulting from a struggle for competences, became visible at the very beginning of their planned cooperation. At its first session, in 1949, the ILC reviewed, on the basis of a survey, 25 topics for possible further study. It selected 14 for a provisional list of topics for codification. While there was general agreement that the General Assembly had the power to approve or disapprove in the last resort, this was not the case for the selection of topics made by the Commission. As early as during the drafting sessions of the Statute of the ILC, divergent opinions were expressed as to whether the Commission might proceed with the codification of a subject selected by it before the Assembly had approved the selection. Relating

14

J. Kaufmann, United Nations Decision Making (Alphen aan den Rijn: Sijthoff en Noordhoff, 1980), p. 6.

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A Cornerstone of Modern Diplomacy

back to the political situation of the time, the Soviet view was that all topics of either codification or progressive development of international law should be decided by the General Assembly. The United States, in contrast, wanted the ILC to receive the capacity to initiate research on its own.15 Finally, representatives in the Sixth Committee pointed out that Article 18, paragraph 2, of its Statute only gave the Commission a power of initiative in the selection of topics; once the Commission had selected and studied a topic, and was of the opinion that its codification was necessary or desirable, it was to present a recommendation to this effect to the General Assembly, which should then decide whether or not it was desirable for the process of codification to go forward. In support of this view, it was eventually accepted that the technical task of selecting topics belonged to the Commission, but that the political decision as to whether and in which form codification should be carried out should be solely the responsibility of the General Assembly.

The Codification process Once the decision is taken in favour of codification or progressive development of international law, there is a fixed procedure that the ILC adopts to start the codification process. As first step, the Commission appoints a special rapporteur. This rapporteur defines, in complete freedom, the subject, formulates a working plan and presents his report, including the first set of provisional drafts, to the Commission. For the formulation of the first provisional draft Articles, the special rapporteur may request support from the Secretariat of the United Nations. Although the nature of the cooperation between the Secretariat and special rapporteurs is difficult to standardize, during the 1950s it had become the practice for the Secretariat to supply, on the request of the special rapporteur, a survey of a topic on a particular subject or, if appropriate, to invite experts in preparations of such surveys. In some other cases, such as the codification of statelessness, the Secretariat compiled the relevant national legislative texts, too. After the ILC has discussed and adopted the first provisional set of draft Articles, the UN Secretary-General is requested to issue a Commission document which includes explanations and supporting material giving background information on the purpose and negotiation history of the subject matter. Most helpful in the understanding of the negotiation of the 15

Morton (2000), p. 13.

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drafted Articles is therefore this commentary which normally accompanies the draft Articles. According to Article 20 of the ILC’s Statute, a commentary should contain, on the one hand, ‘adequate presentation of precedents and other relevant data, including treaties, judicial decisions and doctrine’.16 On the other hand, it should draw conclusions relevant to the ‘extent of agreement on each point in the practice of states and in doctrine’17 as well as the ‘divergencies and disagreements which exist’18 and should give insight into points raised in favour of one or another solution. For the drafting process, the commentary provides a variety of functions. As a legal document, the binding power of the commentary is equal to that of the draft Article: nil. The commentary is adopted by the Commission in the same way as the Articles and has precisely the same force. Therefore, legally speaking at this stage of negotiations, it makes no difference whether exceptions are agreed and enlisted in either the draft Article or the commentary. However, there is of course a huge difference regarding the political function of the commentary. There is, for example, ‘all [the] difference in the world’19 between referring to exceptions in the commentary and the attempt to formulate them in an Article since the latter would give them ‘a kind of standing which they were not entitled’.20 It is not the purpose of the commentary to introduce new rules or elements that are inconsistent to the formulations in the draft. In consequence, rules of law are to be stated in the Articles themselves, not in the commentary. In general, therefore, commissioners and governments tend not to regard the commentary as binding.21 In this way, the commentary should contain only explanation of scope of the Article or the scope of exceptions it provides for. Often the commentary also contains the hopes commissioners have for certain developments, drawing attention to current tendencies. Eventually, the commentary carries a procedural function, too. So, during the 1957

18 19

Statute of ILC, Article 20, paragraph (a). Statute of ILC, Article 20, paragraph (b)(i). Statute of ILC, Article 20, paragraph (b)(ii). United Nations Secretariat, Codification Division, Office of Legal Affairs, YBILC 1957: Summary records of the ninth session, 23 April−28 June 1957 (1957), vol. I (YBILC (1957)), p. 56. 20 This is how commissioner Edmonds of the United States described the different impact of introducing exceptions to a certain rule (in this case the principle of inviolability of mission premises) either in the Article or in the commentary. YBILC (1957), p. 56. 21 As claimed by commissioner Tunkin of the Soviet Union, when discussing the possible exemptions in the commentary to the principle of inviolability of mission premises. YBILC (1957), p. 82. 16

17

20

A Cornerstone of Modern Diplomacy

ILC session, considering the draft Articles on diplomatic intercourse and immunities, if, on a certain Article, commissioners could not agree on the exact formulation they tended to relegate everything to the commentary.22 They sometimes provided for further explanations and definitions in the commentary, leaving it to governments to comment on the draft and to decide on the further details of the Article. This shows that the commentary was essential for governments to understand how commissioners had come to their conclusions or the options that had stood open to them. The commentary therefore provides valuable insight into the background, purpose and meaning of the final Articles. Unfortunately, it is practice that only provisional drafts are supplied with a commentary and all this information gets lost once the Articles are turned into a convention during the concluding diplomatic stage.23 Although there is not much time between the termination of the ILC’s sessions, normally in July or early August, and the beginning of the annual sessions of the UNGA, the Commission’s document will form a basis for discussion which takes place after the representation of the ILC’s annual report in the Sixth (Legal) Committee. Furthermore, governments are commonly invited to comment on the set of provisional drafts, in reasonable time, so that the special rapporteur will be able to prepare a final draft on the basis of these comments for the next annual session of the ILC, normally starting around April or May. Government comments are important for pragmatic reasons, as no final draft can be formulated without governments having had the chance to comment, as well as for political reasons. The observations do not only show where the draft provisions do not adequately reflect universally accepted state practice but also show where and to what degree Member States do not agree with the formulations of the ILC. Therefore, it is the task of the special rapporteur to cast these observations so as to present a revised draft for a ‘second reading’ in the Commission. In a final step, the Commission will discuss the drafts and will submit the revised and adopted text via the Secretary-General to the UNGA together with an explanatory report as well as a recommendation on the further handling of the drafts. Although in many cases the ILC draft Articles are recommended to form the basis for a convention, there are also other forms in which the drafts can be transferred into practice. In Article 23, the Statute of the ILC provides for different recommendations which the body can give to the YBILC (1957), p. 43. Denza, E., Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations, 2nd edn paperback (Oxford: Oxford University Press, 2004), p. 2.

22 23

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UNGA for further usage of the drafts. These recommendations vary in their binding force on the members of the United Nations, giving governments the possibility to choose between codification of International Law through conventions, as under the League of Nations, and codification through the ‘unofficial scientific restatement of positive law’.24 One possibility of the latter is that no further action will be taken other than the publication of the draft Articles in the report of the ILC. In this case, the draft Articles help to identify a certain field of law, although the drafted provisions have the legal character of a code only and are not binding to the members of the United Nations. A more authoritative way to process the ILC draft is to adopt its provisions as a resolution, summoning Member States to follow a certain procedure or to respect the formulated principles on the law in the hope that certain nuances and standards will translate into customary international law. However, the most authoritative procedure to be taken is to conclude with a convention on the basis of the draft Articles. The ILC has the remit to recommend the text to UN members with a view to its conclusion in a convention that, in most cases, will mean holding a convention under the auspices of the Sixth (Legal) Committee of the UNGA, or the recommendation of the convocation of a conference to conclude in a convention. In the latter case, the UNGA will adopt a resolution calling for a conference of plenipotentiaries. Depending on the chosen invitation formula, the conference will be open to either all states or UN Member States only.25 Both scenarios, in the end, have a binding power on the signatory parties of the convention, assisting customary law in terms of precision and, in regard to newly independent states, in acceptance of codified, international rules.

Conclusion The codification process of international law under the auspices of the United Nations bears in mind the shortcomings of previous codification attempts under the League of Nations. With the establishment of the ILC in 1947, the United Nations approached codification of international law on new lines. Creating the first permanent institution for the codification of international law, the ILC is the Sixth (Legal) Committee’s principal expert body. The reorganization of the codification process constituted a modern

YBILC (1949), p. 9. The latter is also known as the Vienna formula.

24 25

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A Cornerstone of Modern Diplomacy

approach to codification in which calm scientific research conducted by the ILC and governmental involvement (through commentaries and discussions at the Sixth (Legal) Committee of the UNGA) were to go hand in hand. In the early years, however, the organizational cooperation between these two bodies suffered under upcoming disputes over the competency to ignite research. Eventually, it had been agreed that the ILC would take the lead in the preparatory process of codification and progressive development of international law. In the following, the ILC became primarily responsible for the groundwork of codification and the preparation of draft articles. It took on the role of an objective and scientific body which, originally, was meant to be free from any political interference. Due to the evolution of the ILC in terms of size, composition and professionalism, political matters also influenced the work of the commission. With an increased interest in its work, states had started to brief appointed commissioners for political purposes. In case of Britain, this is reflected by the fact that while its first commissioners at the ILC were predominantly drawn from the scholarly field, in later years it became established practice to appoint the FO’s chief legal adviser for such positions. Notwithstanding, codification of international law remained a highly standardized process. During the preparatory stage, the ILC is dependent on feedback from governments, either directly through their comments on the set of draft Articles or via debates in the Sixth Committee. Only after the ILC has invited governments at least once to comment on the prepared drafts, it is able to recommend to the UNGA for further usage of the drafts. Within the possible recommendations, the creation of an international convention (produced by a conference of plenipotentiaries or by diplomatic negotiations within the sessions of the Sixth Committee of the UNGA) is the most authoritative form, particularly suitable for a progressive development of international law. Sometimes, however, it is only necessary to identify a certain field of international law or to produce a reminder, in form of a resolution, drawing attention to nuances of international law.

2

The International Law Commission on Diplomatic Privileges and Immunities, 1949–58

In preparation of the first session of the International Law Commission (ILC) in June of 1949, a number of studies were published by the Secretariat, inter alia, for a draft declaration of the rights and duties of states, a survey of the question of international criminal jurisdiction and a survey on International Law in relation with the codification work of the ILC. The latter study included 25 topics in the field of ‘international law of peace’ of which the commissioners selected, within only six meetings, a preliminary list of 14 topics becoming the Commission’s first long-term working plan.1 Although with this plan the ILC had decided, for the start, against the establishment of a general and systematic codification plan for the entire field of international law, as originally envisaged in the preamble and Article 1 of the Charter of the United Nations, such a list enabled the ILC to start its effective work immediately. While the Commission had only necessitated six meetings to agree on the topics included in the working plan, identifying the topics which should enjoy priority status seemed more difficult. One suggestion favoured the regime of the high seas, statelessness and consular intercourse and immunities.2 Another strategy aimed to prioritize the law of treaties and arbitral procedure. A third proposal focused on the question of nationality and statelessness and a final one stressed the importance of the codification 1

2

The 25 topics shortlisted in the survey can be found in ILC report to the General Assembly. YBILC (1949), p. 9, pp. 280–1. Commissioner Vladimir Koretsky of the Soviet Union stressed that questions on consular relations arose very often in the current state practice and that this field was ‘strewn with obstacles, as practice differed in various countries, thus leading to frequent misunderstandings between the states’. However, in the final vote consular intercourse received only three out of nine votes. Ibid., p. 58.

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of the right of asylum. However, the last two proposals did not find the necessary support to be pushed forward. Eventually, the Commission decided to prioritize the three topics of law of treaties, arbitral procedure and the regime of the high seas. Although diplomatic immunities did not seem a matter of urgency to the Commission, it not only included the topic in its long-term programme but also extended its scope. Originally, the survey conducted by the Secretariat dealt principally with the question of diplomatic immunities. However, the Commission agreed that a study of this field should include also ‘the various aspects of diplomatic intercourse in general’. Thus, the Commission extended the topic to ‘diplomatic intercourse and immunities’ including the issue in its long-term working plan. The topic received no priority because it seemed to the commissioners that no urgent work on the topic needed to be done as rules revolving around diplomatic relations were some of the oldest and least controversial ones in the field of international law. However, the increasing Cold War confrontations during the 1950s deterred enhanced relations between states. The international pressure particularly burdened relations between states of East and West, and violations of diplomatic immunities became more frequent and increasingly serious. It was often in these situations that less powerful states sought the protection of international law and, in this specific case, it was the former Republic of Yugoslavia, which had fallen out with the Soviet Union, and had placed a draft resolution on the agenda of the seventh United Nations General Assembly (UNGA) session in 1952, requesting priority be given to the codification of ‘diplomatic intercourse and immunities’.3 In the meetings of the Sixth Committee of the United Nations, the representative of Yugoslavia accused the governments of the Soviet Union, Poland, Czechoslovakia, Hungary, Bulgaria, Romania and Albania of diplomatic discrimination. Yugoslavian agents, he argued, had been the subject of physical attacks as well as restriction of fundamental diplomatic rights such as the freedom of movement, the inviolability of mission premises and the freedom of communication.4 Therefore, he argued that an early codification of ‘diplomatic intercourse and immunities’ would have a positive effect on the application of respect for traditional rules of diplomacy. It would 3 4

See Langhorne (1992), pp. 3–17. The flagrant violations of privileges and immunities included: discourtesy, maltreatment and physical attacks, arrest, restriction of travel, denial of medical aid and various services, refusal of exit visas, illegal entry into the embassies and legations, censorship and refusal of permission to receive mail and newspapers. United Nations Secretariat, Codification Division, Office of Legal Affairs, Yearbook of the United Nations: 1952, Legal questions (New York: United Nations, 1952) (YBUN (1952)), p. 801.

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mobilize world public opinion against ‘aggressive machinations’ and, as a consequence, would relieve world tension.5 The US representative supported the idea and stressed the importance of codification as US citizens and diplomats, too, were suffering discrimination by Cominform regimes. He referred to a Soviet decree that converted 80% of the country into a forbidden zone, which included capital cities such as Kiev and Minsk. Additionally, there was a Secrets Act in 1947 that had restricted all forms of communication between Soviet citizens and foreign diplomats. The Soviet representative, of course, denied these charges of violation and was opposed to the Yugoslavian draft resolution. He was supported by the Polish delegate who interpreted the claims as not of a legal character, explaining that the issue had been artificially created by the United States and Yugoslavia as a propaganda manoeuvre.6 Meanwhile, discussion in Committee on the codification of diplomatic intercourse and immunities had already borne substantial results. In the light of those recent violations of diplomatic custom, most members of the Sixth Committee regarded the topic as sufficiently important to be considered by the ILC. It was proposed to include matters such as personal privileges and immunities, diplomatic asylum, protection of premises and archives as well as the start and ending of the appointment of diplomatic staff in the codification project.7 Certainly the Yugoslavian and the US representative had made an impression, warning that such violations of diplomatic immunities infringed the Charter of the United Nations and threatened the maintenance of peace. However, there was another practical reason to treat the question of diplomatic privileges with priority. It was in the early 1950s that international organizations sought increasingly immunities and privileges for their members of staff and there was a prevailing desire to circumscribe this process.8 Representatives in the Sixth Committee feared that the elasticity of customary law could be challenged and it was argued that certain privileges, such as juridical immunity, should be reserved only to diplomatic agents. 5 6

7

8

Ibid., p. 801 and Liang (1953), p. 442. United Nations Secretariat, Codification Division, Office of Legal Affairs, YBILC 1956: Volume II, Documents of the eighth session including the report of the Commission to the General Assembly (New York: United Nations, 1957)  (YBUN (1956) vol. II), p. 802. Memorandum of the Secretariat on the codification of diplomatic intercourse and immunities in YBUN (1956) vol. II, p. 131. Liang (1953), p.  443. State relations with international organizations were later regulated separately by the 1975 Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character (CRSIO) which, however, by 2013 is still missing the necessary number of ratifications in order to come into force.

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Despite the overall agreement to lift diplomatic intercourse and immunities to a priority topic, some representatives wanted to further broaden the Yugoslavian draft resolution. The Lebanese and Columbian representatives suggested including the topic of consular relations in the resolution as well. Another proposal, made by Colombia and supported by many other Latin American countries, wanted to add diplomatic asylum to the topic of diplomatic intercourse and immunities, as these topics would be closely related. But none of these suggestions gathered the necessary majority. Only under the precondition that the work of the ILC would not be disturbed and that it was granted the necessary freedom to decide when to start to work on the subject, the representatives of, inter alia, Australia, Bolivia, Brazil, Taiwan, France, Greece, the United Kingdom and the United States, agreed to support an amended version of the Yugoslavian draft resolution. Eventually, the amended draft resolution was adopted in the Sixth Committee by 42 votes to 5, with 4 abstentions, and passed the Assembly without discussion.9 As a result, resolution 685 (VII) urged the ILC to treat the codification of diplomatic intercourse as a priority topic, starting with its research ‘as soon as it considered it possible’.10

The fifth to eighth session of the ILC, 1953‒6 Half a year later when the ILC held its fifth annual session in 1953, it was not able to deal with the subject of diplomatic intercourse and immunities due to an overloaded working schedule, unfortunate timing and some procedural problems. Because of the absence, caused by illness, of one of the special rapporteurs and other procedural problems with the preparations of the meetings, members of the ILC had difficulties deciding on a suitable working order. For example, the Secretariat had failed to produce crucial French translations and, furthermore, had not supplied the commissioners with some important preparatory documents.11 Furthermore, the ILC was overloaded with work, having scheduled seven different topics, including ‘diplomatic intercourse and immunities’, YBUN (1952), pp. 802–3. See UNGA the resolution 685 (VII), Adopted by the UNGA at its 400th Plenary meeting on 5 December 1952. 11 See United Nations Secretariat, Codification Division, Office of Legal Affairs, YBILC 1953: Volume I, Summary records of the fifth session (New York: United Nations, 1959) (YBILC (1953)), p. 4. 9

10

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for this session.12 The heavy agenda required the commissioners to concentrate on a few topics rather than giving superficial attention to all of them. Thus, the ILC was at pains not to load even more work onto their annual agenda. Additionally, the commissioners’ term was due to end in the following year and members felt the need to complete at least some of their work. The upcoming ILC elections left the commissioners uncertain of re-election which would enable them to continue their work. This uncertainty led the Commission to conclude that it would be inappropriate for the then present members, in their last year of term, to elect a special rapporteur as no one could be sure if he would be re-elected for another term.13 As a result, the appointment of a special rapporteur on diplomatic intercourse and immunities was postponed until the next session, in 1954. The sixth session of the ILC was held at the headquarters of United Nations  Educational, Scientific and Cultural Organization (UNESCO) in Paris from 3 June to 28 July 1954. For two out of the nine members it was the first session after their election into the ILC in late 1953.14 Although diplomatic intercourse and immunities was only the fifth topic on the provisional list for this session, commissioner Hersch Lauterpacht of Great Britain suggested placing the topic of diplomatic intercourse and immunities together with the study on state responsibility on the Commission’s priority list for the next, seventh session of the ILC in 1955. Furthermore, he proposed Jaroslav Zourek of Czechoslovakia to be appointed special rapporteur. However, when, ten days later, it came to the election of the special rapporteur for the topic of diplomatic intercourse and immunities, Zourek declined the proposal, owing to a lack of time.15 As an alternative candidate Lauterpacht suggested the chair of the current These topics were: nationality/statelessness, arbitral procedure, regime of high seas, law of treaties, draft code of offences against the peace and security of mankind, regime of territorial sea and, finally, the question of diplomatic intercourse referred to the Commission by virtue of Assembly Resolution 685 (VII) of 1952. 13 YBILC (1953), p. 366. 14 Fluctuation of membership, though, was not too high. While Jesús Yepes of Colombia, Ricardo Alfaro of Panama, Feodor Kozhevnikov of the Soviet Union and Manley Hudson of the United States left the International Law Commission, Francisco García Amador of Cuba and Carlos Salamanca Figueroa of Bolivia joined the Commission. Another vacancy was caused by the resignation of John Parker of the United States shortly after his election in 1955; he was later replaced by Douglas Edmonds of the United States. 15 United Nations Secretariat, Codification Division, Office of Legal Affairs, YBILC 1954: Volume I, Summary records of the sixth session (New York, 1960), p. 146. 12

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ILC session, Emil Sandstroem, to be special rapporteur on diplomatic intercourse and immunities. Lauterpacht was seconded by other members and, as a result, Lauterpacht’s proposal was adopted unanimously and Sandstroem became special rapporteur for the codification of diplomatic intercourse and immunities.16 Although Sandstroem was able to draft a first report on the subject of diplomatic intercourse and immunities within a year’s time, the Commission neither in 1955 nor in 1956 found time to discuss the subject as it was busy preparing the drafts for the Law of the Sea conventions. However, commissioners were provided with background information via the report of the special rapporteur and a memorandum drafted by the Secretariat which outlined existing principles and practices followed by states. The memorandum not only was a recollection of the status quo of prevailing rules but also observed divergences in practice, such as regarding the limits of immunity in private law, categories of diplomatic staff entitled to full diplomatic immunity, immunities of the subordinate staff, extent of immunity from taxation and conditions for waiver of immunity. Furthermore, the memorandum reviewed various attempts which were made in the past to codify the subject: these included the first international convention on diplomatic relations, namely the 1815 Règlement de Vienne (Congress of Vienna); a regional codification of diplomatic relations, namely the 1928 Havana Convention on Diplomatic Officers and an in-depth piece of research conducted by the prestigious American Harvard University on diplomatic privileges and immunities, the 1932 Harvard Research Draft.

The ninth session of the ILC in 1957 As part of the agenda for the 1957 session of the ILC, diplomatic intercourse and immunities was agenda point 3 and subject of discussion during 39 meetings between the 383rd to 413th as well as the 423rd to 429th meeting. The meanwhile increased number of 21 commissioners considered, under the guidance of chairman Zourek, the topic on the basis of the report and draft Articles supplied by special rapporteur Sandstroem and the memorandum drafted by the UN Secretariat. Sandstroem’s draft report on diplomatic intercourse and immunities originally contained 28 Articles only, but expanded during the discussions in Committee to 37 draft Articles. 16

Ibid., p. 193.

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Cold War issues influenced the discussion on the Articles and sometimes gave reason for their very inclusion in the draft. It was noticeable that although commissioner Grigorii Tunkin of the Soviet Union, and also commissioner Fitzmaurice, sat in Commission in their personal capacity, they were well aware of national diplomatic practices and peculiarities of Cold War diplomacy between East and West.17 As a result, provisions such as that on the facilitation of accommodation and particularly that regarding the freedom of movement made their way into the first set of provisional draft Articles in a form which would not have been necessary before the start of the Cold War. Not least because of the technical nature and reciprocity of diplomatic relations, commissioners were able to go beyond these arguments until they reached a common principle on which a compromise text could be adopted which was acceptable for both sides. However, there were also many points on which Tunkin and Fitzmaurice agreed and, together, had convinced other commissioners of their position. This was the case, for example, during the debate on the inviolability of mission premises in respect of the regionally practised custom of conceding diplomatic asylum in the mission premises. In this particular case, the Commission as a whole became aware that a perpetual debate on diplomatic asylum could only be avoided if the diplomatic mission was granted absolute inviolability. Hence, the fear of opening up Pandora’s box was greater than the wish to eliminate any form of misuse of this principle and eventually led to the absolute principle of the inviolability of mission premises. During the 400th meeting, after more than three weeks’ work, the Commission discussed a point raised by commissioner Jean Spiropoulos of Greece, namely the final form of the draft Articles. Such a decision was not unimportant and affected the method of work, particularly for the discussion of diplomatic privileges and immunities. It was rather unlikely once the Commission had decided to formulate a model code, it being not much more than a restatement of the current law, that the Commission would go beyond recognized international law in force. However, should it be decided to envisage a codification by convention, which had a binding power on the UN Member States, the Commission might also attempt to ‘codify a practice which had not yet become law, but which was general enough to warrant the reasonable expectation that the text proposed [. . .] would be accepted by Governments’.18 Fitzmaurice was the legal adviser of the British FO. Tunkin headed the Legal Department of the Foreign Ministry of the Soviet Union. 18 YBILC (1957), p. 88. 17

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In general, most commissioners had aimed from the beginning for a codification by convention. Special rapporteur Sandstroem acknowledged that he had assumed the final drafts would form basis for a draft convention: until the 400th meeting half of the set of drafts had already been discussed on the understanding that they would be recommended for codification in a convention and, de facto, the Commission had no choice but to continue as it had begun. Furthermore, the Commission was positive about the suitability of the topic for codification. Commissioner Zourek noticed that uniformity of state practice could only be achieved by a convention, while others stressed that diplomatic intercourse displayed a fair measure of conformity expressing their high hopes by suggesting that it had the best chance of all topics of achieving a successful codification. In contrast, Fitzmaurice was not so optimistic and doubted whether a draft convention was the most desirable form. Having in mind the two options open for the UNGA to proceed with the codification by convention (i.e. either within the General Assembly or to convene a diplomatic conference), Fitzmaurice was sceptical. He did not expect the UNGA to convene a special conference on diplomatic intercourse alone, as it had done with the Law of the Sea, and pointed to the dangers that codification within the scope of the General Assembly would imply. He expected the General Assembly to open up discussions on the drafts again, but with far less time for a careful study, increasing the likelihood that any change introduced ‘might not be for the better’.19 On top of this, there was also the problem of ratification and reservations. One could not know yet how many states would ratify a possible convention, nor the extent of reservations these states would introduce to it. Therefore, Fitzmaurice was not sure if a convention would necessarily be more advantageous than a model code, suggesting the deferment of a final decision until the next ILC session, awaiting the nature of governmental comments. Despite his warnings the Commission as a whole could not agree entirely. The recommendation for a model code would have impeded the formulation of provisions that differed from recognized rules of international law or which introduced a means of implementation such as the new draft Article on the settlement of disputes. As a result, such a step would have meant to reconsider half of the draft Articles for which there would have been too little time. But there was also the fact that many commissioners saw good chances for a successful codification due to the majority of the subject. Eventually, the reluctance to review half of the commission’s work as well

19

Ibid., p. 88.

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as the prospects of a successful codification tipped the balance in favour of codification by a binding convention. In order to indicate to governments which final form the Commission was aiming for, it provisionally decided in favour of codification by convention and it was on that basis that it proceeded with its considerations of the remaining Articles.

The tenth session of the ILC in 1958 The tenth session of the ILC in 1958 was an important step for the codification process of diplomatic privileges and immunities. The ILC had received comments by 21 governments on the 1957 set of provisional draft Articles and subsequently was to review the Articles in the light of these commentaries.20 The revision led to changes of some draft Articles and the inclusion of additional ones so that the 1958 ILC draft convention eventually comprised 45 draft Articles. During the 1957 debate in the Sixth Committee, a particular enthusiasm had developed over the idea of simultaneous codification of diplomatic and consular relations. This enthusiasm transferred to the 1958 session of the ILC. The issue was raised by Jean-Pierre François of the Netherlands who wondered whether the ILC should submit those two drafts simultaneously to the UNGA. Thus, one option discussed was that commissioners could deal with the most important aspects of consular intercourse and immunities in the current 1958 session so that, accordingly, in 1959 a provisional draft might be adopted together with the ILC’s draft on ad hoc diplomacy. However, although a certain familiarity of the topic was obvious, as diplomats would partly also perform consular tasks, the agenda of the ILC was set according to the maturity of topics and not according to the close relationship between two topics. No draft had yet been prepared on consular intercourse and the ILC preferred to press on with the subjects of arbitral procedure and diplomatic intercourse, whose preparation was most advanced. Accordingly, if not already in 1957 then after the termination of the tenth ILC session in 1958 it had become clear that a simultaneous codification of diplomatic and consular intercourse and immunities could not be achieved without taking into account huge delays in the presentation of the former topic. 20

These were the governments of Argentina, Australia, Belgium, Cambodia, Chile, Taiwan, Czechoslovakia, Denmark, Japan, Jordan, Luxembourg, the Netherlands, Pakistan, Sweden, Switzerland, Union of Soviet Socialist Republics, United Kingdom, United States and Yugoslavia.

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By the beginning of negotiations in 1958, the ILC had not yet taken a final decision on its recommendation for the General Assembly regarding the form and eventual purpose of the draft Articles. The feedback received on the draft Articles as a whole was generally favourable. Many governments agreed to the scope of the presented draft and expressed their appreciation for the ‘painstaking study’21 rendered by the Commission. Particularly interesting were the comments of the United States and Chile. The latter noted that the 1957 ILC draft fundamentally met with the provisions of the Havana Convention of 1928.22 This comment was important for the Commission as it stood in contrast to the criticism received in the Sixth Committee discussion where it had been said that the draft did not sufficiently take into account the provisions of the Havana Convention and, hence, the regional practices of Latin American countries. In fact, the only important principle that was not covered by the ILC draft but practised in South America was that of diplomatic asylum. This practice stood in relation to the fiercely debated principle of absolute inviolability of mission premises and was dropped for tactical reasons. In the observations to the first set of provisional drafts, the United States supported a codification in the form of a restatement of existing principles of international law and was the only country that plainly excluded a possible codification by convention because it felt that friction could arise between states due to a number of vague and ambiguous provisions whose language was ‘obscure in meaning and susceptible of different interpretations’. 23 This is particularly interesting bearing in mind the initial debates in the Sixth Committee in 1952 about diplomatic intercourse and immunities becoming a priority topic for codification, in which the United States actively supported the Yugoslavian representative in its endeavour to press for codification. Commissioner Fitzmaurice also tried hard to avoid a codification by convention and lobbied for the recommendation of a resolution on the drafts of diplomatic intercourse and immunities. While in 1957 he had still favoured a codification through a conference of plenipotentiaries, under the recent impressions gained from the UN Law of the Sea conference of 1958, he turned his back on this idea. Instead, he would have favoured the recommendation of the draft to Member States for signature only, without opening debate YBILC (1958), p. 3. The 1928 Havana Convention codified regional diplomatic practices how they were found primarily in Latin American states. Its regional focus was one of its major flaws and impeded a more wide-reaching application. 23 YBILC (1958), p. 4. 21

22

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either in the Sixth Committee or through an international conference of plenipotentiaries. Towards the end of discussions on diplomatic intercourse and immunities, at its 467th meeting the Committee again took up the matter of the final form of the drafts. Although some time had passed, the general attitude of commissioners regarding their inclination towards codification by convention had not changed. The special rapporteur proposed inviting the General Assembly either to recommend the drafts to Member States with the view of concluding a convention or to convoke a conference to conclude a convention. Such a procedure would be in accordance with Article 23 (c) or (d) of the Statute of the ILC. However, Fitzmaurice, still trying to avoid codification by convention, deprecated the idea that all ILC codifications should be recommended to the General Assembly in the form of a convention. Comparing diplomatic intercourse and immunities with consular affairs, he stressed that there was not much customary international law on the latter which might make codification by an international conference desirable. However, the draft Articles, according to Fitzmaurice, had broken no new ground, nor was there ‘any obscurity’ (as was the case with the Law of the Sea) which would justify the convocation of a conference. Therefore, Fitzmaurice suggested that neither Article 23 (c) nor 23 (d) should be invoked but 23 (b), which would recommend the General Assembly take note of the Commission’s report and adopt it as a resolution. Nevertheless, for the majority of commissioners, only recommendations along the lines of Article 23 (c) or (d) were ever in the running. Zourek supported the convocation of a conference which, in any case, did not need to be as big as the UN Conference on the Law of the Sea. In contrast, there was also a need to reduce the number of conferences to a minimum, and, because the subject of diplomatic intercourse was ‘straightforward’, the General Assembly could deal with it. Although the codification of Genocide was an exceptional one and, as the Secretary to the Commission pointed out, no convention since then was discussed Article by Article in the General Assembly, it was true that the General Assembly would not have the necessary time to examine the draft in order to recommend it to Member States. Consequently, Ahmed Matine-Daftary of Iran took up Fitzmaurice’s suggestion that it was not necessary to recommend the convocation of a conference but that the draft convention could simply be opened for signature by Member States after the General Assembly had adopted it. Despite some debate, this suggestion still did not convince the majority of commissioners. Eventually, the Committee agreed that the draft Articles would be formulated in conformity with Article 23, paragraph (c) of the ILC statute, recommending

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to the General Assembly ‘that the Articles on diplomatic intercourse and immunities should be recommended to Member States with a view to the conclusion of a convention’.24 Regarding the content of the drafts, the 1958 ILC session had not brought much change in structure but led to a considerable increase in the total sum of draft Articles. While the 1957 draft contained 37 Articles, the adopted and final set of draft Articles in 1958 comprised 45 draft Articles. Together Tunkin and Fitzmaurice sought that no profound debate developed on the freedom of communication, the family of a diplomatic agent and the inviolability of mission premises or the diplomatic bag despite some remarks in the governmental comments. In contrast, a new Article on the notification of arrival and departure followed due to the suggestions of the Netherlands and Italy and another one on non-discrimination and reciprocity of diplomatic privileges and immunities emerged out of the discussions. Generally speaking, debates tended to emerge on the points on which state practice differed. Thus, a rather controversial debate arose on ILC draft Article 45, settlement of disputes by the International Court of Justice, because the jurisdiction of the Court was not accepted by many states. Although it was feared that the Article could deter states from acceding to the Convention, it eventually remained in the ILC draft. However, commissioners saw little prospect that the Article would be adopted by a necessary two-thirds majority in the Plenary of the Vienna Conference and, resulting, it could be expected that it would be relegated to the form of an optional protocol. Other controversially debated issues which were debated but not included in the 1958 ILC draft was an Article on the right of legation and a provision stating that the establishment of diplomatic relations implied the establishment of consular functions, both of which were suggested by the Czech government. A potential Article on the diplomatic corps failed because commissioners could not agree on a concrete definition of it while the subject of the diplomat’s bank account remained too disputed as well.

Conclusion The process of the codification of International Law and the work of the ILC started with the creation of a preliminary list of 14 topics with which 24

United Nations Secretariat, Codification Division, Office of Legal Affairs, 1958: Volume II, Documents of the tenth session including the report of the Commission to the General Assembly (New York: United Nations, 1958), p. 89.

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35

the ILC decided upon a general codification plan for the whole field of international law. This opened the possibility for topics to receive priority according to political urgency. The topic of diplomatic intercourse and immunities was included in the preliminary list of 14 topics because it could draw on a gradual historical development through which customary law had become stable and generally accepted. However, it followed from this stability that codification did not call for urgency and, as a result, the subject did not enjoy any preference at the beginning in 1949. It was only after the request from Yugoslavia during the 1952 General Assembly that diplomatic intercourse and immunities was elevated to priority status as relations between states deteriorated due to the growing tensions of the Cold War. Although the ILC was instructed to instigate research on diplomatic intercourse and immunities the same year, overloaded with work and hampered by the regular ILC election in late 1953, it could not start working on the draft Articles until the ninth session of the ILC of 1957. After two years waiting in line, it is the first session in which the special rapporteur’s report and draft Articles were presented to commissioners for discussion. Discussions and additional Articles emerged on issues sensitive to Cold War aspects and, in cases of the freedom of movement and the facilitation of accommodation of diplomatic mission premises, ended up in a compromise solution which both sides could live with. On other issues, such as the principle of the absolute inviolability of mission premises, Tunkin and Fitzmaurice worked almost hand in hand in order to avoid any discussion on the disputed principle of diplomatic asylum. It was avoided because there was no sight of a compromise solution. Providing for absolute protection to mission premises, however, made it possible that even in cases of misuse – for instance, giving shelter to political refugees in the mission premises, local authorities would be given no right to enter the diplomatic premises. While during its 1957 session the ILC had postponed a final decision on the further usage of the draft Articles, it decided in 1958 to recommend the codification by convention. By recommending the codification of diplomatic intercourse and immunities by convention allowed to formulate Articles where practice had not yet turned into international law but where it was accepted enough for codification. This implied that codification could include the so-called progressive development of international law and that the state would have to adopt its state practice to the Vienna Convention on Diplomatic Relations, 1961 (VCDR) should diplomatic practice differ. The ILC recommended the codification by convention despite the objections of the United States and the misgivings of commissioner Fitzmaurice,

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who would have favoured the codification by resolution in order to avoid domestic legislation. As regards the negotiations under a British perspective, although commissioner Fitzmaurice again proved to be an excellent jurist and eminent member of the ILC, he could not avoid the draft being recommended to the General Assembly as forming the basis for a convention. The comments by the Pakistani government (on the 1957 provisional draft) to create a forth category of heads of mission for high commissioners and the passivity of Fitzmaurice on the issue indicate that there was obviously no agreed policy concerning the application of a possible convention to Commonwealth relations. A closer look at the British preparations will help to understand better the British position on the ILC draft Articles and how it prepared for the negotiations at the 1961 United Nations Conference on Diplomatic Intercourse and Immunities. Regarding the negotiations at Vienna, Rudolf Bindschedler, deputy head of the Swiss delegation and chief of the Legal Service of the Swiss Federal Political Department, had said that the most difficult aspect about the Vienna Conference was not the negotiations between delegations during the conference but balancing the internal interests of being a sending as well as a receiving state. Therefore, a look at the British preparations will show how the British Foreign Office (FO) managed to organize the views of other Whitehall Departments, including the burning issue of the application of the Vienna Convention to Commonwealth relations.

3

Britain’s Foreign Policy Process: Preparing for the 1961 Vienna Conference

Preparing the commentary on the draft Articles and then preparing to negotiate an internationally binding convention implies making certain calculations about foreign policy. In Britain in 1961, formal responsibility for conducting foreign policy rested primarily with the Foreign Secretary, the Cabinet minister responsible for the Foreign Office (FO).1 However, this excluded relations with Member States of the Commonwealth. IntraCommonwealth relations were deemed to resemble those within a family as opposed to those with foreign states and, accordingly, a distinctive Department, the Commonwealth Relations Office (CRO), handled all dealings with members of the Commonwealth.2 While the FO and CRO differed considerable in terms of money, staff and influence on the policy-making process, both Offices followed the same working procedures. First, there was a horizontal division in matters of foreign policy whereby international issues were handled according to their perceived relative importance ranging from matters affecting fundamental British standing to routine matters such as dealings with amicable states, technical agreements and managing unspectacular conference work. Additionally, and as a consequence of the former distinction, issues were vertically divided according to the level at which they are handled. In other words, matters of high diplomacy or those which were urgent or particularly 1

2

Of course, in the last resort and according to the British constitution, the Foreign Secretary’s actions are subject to approval by the Cabinet and the Prime Minister as its chair. Ibid., p. 21. The Secretary of State for Commonwealth Relations had a seat in the Cabinet. To the time of the Vienna Conference in 1961, it was Duncan Sandys who held the office between July 1960 and July 1962.

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pressing usually came to the attention of the Foreign Secretary and, often, that of other senior Cabinet ministers.3 Meanwhile, incoming despatches moved up the departmental hierarchy,  starting off with the most junior official who minuted his/ her views and then forwarded them, as necessary, to his/her superior who, in turn, passed them upwards, and so on. In the process, low-level decisions were taken at a low level and important papers and important decisions rose  to the level of the Permanent Under-Secretary (the top official) or one of the ministers.4 Thus, summit matters would be coordinated at the highest level and would involve the Prime Minister. But this is the exception and the bulk of FO work, including issues of ‘low diplomacy’, was relegated to the lower levels where the five DeputyUnder Secretaries came into their own as ‘the real work horses’ of the FO. 5 Under their supervision, policy work was handled by regional and functional departments, each of which was superintended by an Assistant Under-Secretary.6 Referring back to the codification of diplomatic relations, the main work relating to the commentaries on the ILC drafts of 1957 and 1958, as well as the preparations for the 1961 Vienna Conference, fell to the FO legal advisers.7 However, in the FO there was no such thing as a legal Department. Papers that reached the FO were normally not marked as ‘legal’ but went directly to the political, geographical or functional departments to which FO legal experts were allocated. Although the legal 3

4

5

6

7

See also K. S. Rana, The 21st Century Ambassador: Plenipotentiary to Chief Executive, Oxford India Paperbacks (New Delhi: Oxford University Press, 2010), p. 7. In 1961, the year of the Vienna Conference, Sir Alec Douglas-Home was Secretary of State for Foreign Affairs. Sir Frederick Hoyer Millar was the Permanent UnderSecretary. The Minister of State was David Ormsby-Gore and instead of a second minister, the Lord Privy Seal, Edward Heath was allocated to the FO. There were also two Parliamentary Under-Secretaries of State, The Marquess of Lansdowne and J. B. Godber. Ibid., p.  28. In 1961, these were: Sir Roger Stevens, Sir Patrick Reilly, Sir Francis Rundall, Sir Evelyn Shuckburgh and Sir Hugh Stephenson. In 1961, these were: F. R. H. Murray, D. F. MacDermot, A. D. Wilson, H. N. Brain, R. H. K. Marett, R. S. Crawford and R. W. Jackling. The CRO also had its own branch of legal advisers which should have been involved in this process. However, according to CRO legal adviser Sir William Dale, the CRO did not make much use of its legal advisers. Such interpretation is supported by the fact that the post of CRO legal adviser was vacant in 1961. Furthermore, the CRO was involved in the preparations of the Vienna Convention on Diplomatic Relations, 1961 (VCDR) only very briefly before the Vienna Conference took place. As soon as the ‘problem’ was recognized it was tackled by the legal experts, William Dale and Humphrey Oxley. See J. Whitaker, Whitaker’s Almanack 1961 (London: Whitaker’s, 1961). Part of this information derives also from a telephone interview conducted by Prof. Alan James with Sir William Dale, 20 November 1997.

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adviser could be consulted if need be, it was the deputy legal adviser, a legal counsellor and several assistant legal advisers who did most of the work on a specific problem and bore the main responsibility for dealing with it. 8 Thus, in 1961 the FO legal branch was structured as follows: the (chief) legal adviser, the deputy legal adviser, a legal counsellor and a number of assistant legal advisers. In other words, chief legal adviser Sir Gerald Fitzmaurice was supported by nine lawyers during the preparatory stages of the codification of diplomatic privileges and immunities. After Fitzmaurice’s December 1960 election to the bench of the International Court of Justice (ICJ), he was succeeded by Francis Vallat who had been deputy legal adviser since 1954. The next (third) most senior lawyer was the legal counsellor, a position which between 1959 and 1961 was held by three different officials: first John (Liddle) Simpson who in June 1959 transferred to New York becoming the legal adviser to the UK delegation to the United Nations; second (William) Vincent (John) Evans who succeeded Vallat as deputy legal adviser9 and, third, Miss Joyce (Ada Cooke) Gutteridge who became legal counsellor in December 1960.10 In addition, there was a team of five to six assistant legal advisers, the most important from the perspective of this book being Fred Burrows (1956–65), Arthur (Desmond) Watts (1959–62), Christopher (Duncan) Lush (1959–62) as well as a couple of lower executive officers of the legal branch such as CW Courtness and Miss Todd-Naylor. Bearing in mind the technical character and detailed legal issues involved, these preparations neither attracted nor required more than the very occasional attention of the ministers or, indeed, the Cabinet, and, when they did, it was essentially via the Cabinet Steering Committee on International Organizations.11 As a consequence, it was the FO lawyers who bore the brunt of the task, in cooperation with officials in other Departments. Moreover, until 1960 the preparatory work fell within the remit of the British member within According to a telephone interview of 22 April 1997 between Professor Alan James and Sir Vincent Evans, FCO legal adviser, 1968–75. See also A. Carty and R. Smith, Sir Gerald Fitzmaurice and the World Crisis: A Legal Adviser in the Foreign Office 1932–1945 (The Hague: Kluwer Law International, 2000), p. 1. 9 Evans was appointed assistant legal adviser in 1947 and promoted to be legal counsellor in early 1954 before he was transferred to the UK delegation to the United Nations the same year. In July 1959 he returned to his old post as legal counsellor substituting J. L. Simpson. FO List (1960), p. 398. 10 After she had served about ten years as assistant legal adviser. FO List (1960), p. 224. 11 There was a working party on Diplomatic Privileges and Immunities within the Cabinet Steering Committee on International Organizations. 8

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the International Law Commission  (ILC), Sir Gerald Fitzmaurice.12 Until his election to the bench of the ICJ in 1960, Fitzmaurice had, in a personal capacity, sat on the ILC while he was simultaneously FO legal adviser.13 He was, moreover, president of the ILC in 1959 and its general rapporteur in 1957, 1958 and 1960. Although Fitzmaurice’s annual ten weeks’ absence for ILC sessions added to his workload, his ILC work and his position as legal adviser perfectly complemented each other. As Robbie Sabel, former legal adviser to the Foreign Ministry of Israel, explains the role of legal advisers is tripartite. The legal adviser unifies the function of counsellor, attorney and legal draftsman. In his first role, the legal adviser gives counsel on what international law says on any given subject and in so doing gives an ‘accurate, unvarnished and objective portrayal of the law’.14 In his role as attorney he will advise, support and, if need be, justify the position of his government once a foreign policy decision has been taken. His function here is to convince neutral or objective observers about the legitimacy of his government’s action. Furthermore, he not only provides reassurance that a given stance is correct but, if disputed, can also argue that it was legal. Finally, in his third role, and most interesting from the point of view of the codification of international law, he is a legal draftsman. In this function, he ensures that international treaties to which his government will be a party reflect, as far as possible, the objectives and diplomatic practices of his state. As a skilful drafter, he must ensure not only that international law is not violated but that the wording reflects intentions and uses clear, legal language which will be understood by the international community.

Coordinating Britain’s view on the codification of diplomatic privileges and immunities By the summer of 1957, the ILC had produced a first set of draft Articles that the UN member governments were invited to comment. Governments He was knighted in 1954 and appointed Queen’s Counsel in 1957. J. Merrills and G.  Fitzmaurice, Judge Sir Gerald Fitzmaurice and the Discipline of International Law:  Opinions on the International Court of Justice, 1961–1973 (Kluwer Law International, 1998) (Merrills/Fitzmaurice (1998)), p. 4. 13 Fitzmaurice became legal adviser in May 1953. Like in 1955 when Fitzmaurice followed Hersch Lauterpacht as member of the International Law Commission, he took over from him as judge of the International Court of Justice in 1961, upon Lauterpacht’s death in 1960. Ibid., p. 10. 14 R. Sabel, ‘The Role of the Legal Adviser in Diplomacy’ (1997), Diplomacy and Statecraft, vol. 8, p. 1. 12

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were twice given the chance to submit their observations: in 1957 on the set of draft Articles and in 1958 on the final version of a revised set of 45 ILC draft Articles.15 On both occasions, the UK government took the opportunity to send observations, which varied according to the perceived direction in which the ILC was travelling. In early 1957, Sir Gerald Fitzmaurice wanted all ‘interested Offices and outside Departments’ to be informed about the ILC draft Articles16 but did not yet appear to have sought their comments. The final British commentary on the 1957 ILC draft Articles contained exclusively the FO’s view on the subject and, as a consequence, explained mainly on how the ILC draft differed from current British diplomatic practice. Compared with the comments submitted by other governments, the British commentary was a reserved approach which relied very much on the hope that the final draft Articles would form the basis for a legally non-binding international agreement such as a restatement of diplomatic practices or a resolution of the United Nations General Assembly (UNGA) on diplomatic intercourse and immunities. Unlike the British, other Commonwealth governments started criticizing the provisional set of draft Articles more openly. For example, Australia and Pakistan were aware and concerned that Commonwealth affairs had been entirely left out of account. The Australians commented that some further consideration might be required to take account of the special position of members of the Commonwealth of Nations in their mutual diplomatic relations. Furthermore, it stated that the term ‘government’ should be avoided as diplomatic missions usually represent the head of state which in the case of Commonwealth realms had been Queen Elizabeth II of Great Britain.17 The Pakistani government, on the other hand, singled out the different practice of high commissioner’s accreditation while stressing their equal rank to ambassadors and their priority in matters of precedence over them. Unlike the British, which avoided explaining the special characteristics of Commonwealth practices in its comment on the 1957 ILC draft, the Pakistani government pressed that any departure from these practices would be ‘a concern to the whole

In 1957, this opportunity was taken up by only 21 States. On the final drafts, the UN Secretariat received observations by 19 States. Talking about a ‘commented draft’ means that next to the 45 draft Articles the ILC had also drafted an explanatory commentary to it. 16 Fitzmaurice (legal adviser, FO), minute, 6 February 1959, TNA, FO372/7515. 17 United Nations Secretariat, Codification Division, Office of Legal Affairs, YBILC 1958: Volume II, Documents of the tenth session including the report of the Commission to the General Assembly (New York: United Nations, 1958)  (YBILC 1958, vol. II), Annex, p. 111. 15

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Commonwealth’.18 As a result, for Karachi the incorporation of particular Commonwealth practices within the codification of general diplomatic relations was essential and already decided as soon as 1958. In contrast, the British were divided on this issue and were able to take a decision only in early 1961. There are essentially two reasons for the rather descriptive British commentary. First, the ILC had not yet taken an official stance on its recommendation for the final form of the draft Articles. Fitzmaurice was inclined to see the main purpose of the ILC work in the preparation of draft Articles which should not form basis for international conventions but to produce rather a review of the existing law.19 Although Fitzmaurice suggested to invite all interested Departments to comment on the ILC drafts, this was a time-consuming process which only started with the preparations of the UK commentary on the final 1958 ILC draft Articles. The back and forth of intra-departmental communication between the Whitehall Departments and the FO was time consuming, and time was rather too short to include these views already in the 1957 commentary. A second reason for the limited commentary was that it was initially not clear which Departments would be interested and necessary to be involved in the preparation and formation of a complete British position. While Whitehall Departments were invited to comment on the final 1958 ILC draft by a circular notice, the circular notice was not noticed by all Departments with a vital interest in it. Particularly remarkable, the CRO did not engage in the preparation process until shortly before the Conference did start.

Dealing with the 1957 set of provisional draft Articles On 10 March 1958, almost two months before the opening of the ILC’s 1958 session, 20 Britain submitted its commentary on the set of 37 provisional In 1958 seven out of ten Commonwealth members had Queen Elizabeth II as its monarch and head of state. To these sovereign states known as Commonwealth realms counted Great Britain, Canada, Australia, New Zealand, South Africa, Ceylon (today Sri Lanka) and Ghana. India and Pakistan were republics with a President as its head of state. The Federation of Malaya (together with North Borneo, Sarawak and Singapore today’s Malaysia) became independent in 1957 with its Yang di-Pertuan Agong as head of state. 19 He applied this view not only on the preparatory work on diplomatic intercourse and immunities but also to the codification efforts on law of treaties. However, with little success in the end both matters finally resulted in codification by convention in 1969 and 1961, respectively. Merrills/Fitzmaurice (1998), p. 11. 20 The International Law Commission opened its tenth session on 28 April 1958 and closed its work on 4 July 1958. 18

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draft Articles created by the ILC in 1957. 21 As mentioned before, most of these comments were moderate and stated British diplomatic practice, trying to clarify custom rather than to provoke a change in drafting. Hence, the UK comments set out its practice regarding the commencement and termination of the function of the head of mission (Article 8), the duration of his privileges and immunities (Article 31) as well as the regulation of precedence (Article  12). Furthermore, Her Majesty’s Government (HMG) explained that the head of mission was entitled to waive a diplomat’s immunity in case of criminal prosecution (Article 25)  and that in its diplomatic practice the use of a charge d’affaires ad interim was rather scarce. After stating its practice, HMG sought clarification on some other points. For example, in Article 23 regarding the inviolability of residence and property, the matter of bank accounts was mentioned in the commentary but not in Article 23 itself. At another point, HMG spotted a possible conflict in the regulation of the scope of diplomatic privileges and immunities enjoyed by diplomatic agents and other staff of the mission (Articles 22 and 28). Regarding the functions of a diplomatic mission, stipulated in Article 2, she stressed that in modern times cultural activities had become an important part of a diplomatic mission’s functions and should not be omitted from an exhaustive enumeration. However, there were also provisions in the draft Articles which differed from British practice and which caused some obvious discontent with the British. For example, it was contrary to Britain’s practice to grant express consent to the appointment of British nationals to foreign missions in London (Article 5)  and that missions in London had no right for tax exemptions, but these were granted on the basis of reciprocity (Articles 17 and 26). Furthermore, it did not agree with the text of Articles 7 and 21. British practice neither required agreement for the appointment of military, naval and air attaches, nor did HMG ask foreign missions in London to seek any special permission or licence to operate diplomatic wireless transmitters. Finally, the only point in the commentary which not only did state British practice but also suggested a concrete change referred to the new creation of different categories of heads of mission (Article 11). It probably seemed too rigid to make classes of heads of mission subject to international codification. As a result, HMG was not inclined to follow the suggested classes of heads of mission and asked instead for a redraft in which ‘states shall mutually agree the level of their diplomatic representation at

21

YBILC 1958, vol. II, HMG commented on 14 out of the 37 draft Articles.

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each other’s capitals’.22 But this was the only time HMG was straying from its tactics of commenting only without suggesting concrete changes in the draft and suggests that it tried as soon as in 1958 to create a loophole to cover for Commonwealth practices.

Preparing the commentary for the 1958 ILC draft Articles In prospect of a revised draft created by the ILC during its session in 1958 and in preparation for the discussion which would follow in the General Assembly Sixth Committee meetings in autumn 1958, the FO invited (on the same day as it transmitted its 1957 commentary to the Secretary-General of the United Nations) the Lord Chancellor’s Office (LCO), the Home Office and the Board of Inland Revenue and Board of Custom Excise to comment on the ILC draft. In contrast to the UK comments on the 1957 set of preliminary drafts, the FO had changed its tactics for its second commentary on the final 1958 ILC draft. With the certainty that the draft Articles would take the final form of an internationally binding convention, simply setting out British practices or the provisions of British legislation and focusing on the points on which the draft differed did not seem appropriate anymore. Therefore, the language and nature of the new comments were directed to secure the accommodation of UK practices which, consequently, should facilitate HMG’s adherence to the final convention text. To this end, all interested Whitehall Departments were invited to send their observations. However, while the UK commentary on the 1958 ILC draft was to become (unlike the commentary of the 1957 ILC drafts) a collaborative attempt, many of the comments were greatly framed by the legal and protocol experts of the FO. It was the FO that drafted the original commentary text on which she invited other Whitehall Departments to express their views. After the ILC had concluded its work on the 45 draft Articles on diplomatic intercourse and immunities in July 1958 with a recommendation to Member States ‘with view to the conclusion of a convention’, the FO contacted all Whitehall Departments via a circular notice late in October 1958. This circular contained the revised ILC draft Articles and invited all interested Departments to give their observations.23 While the FO legal

Ibid., HMG’s commentary, Article 11, p. 132. Christopher Lush (assistant legal adviser, FO) to T. C. Jerrom (assistant secretary, CO), letter, 20 February 1961, TNA, FO372/7574.

22 23

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45

experts were able to comment adequately on most draft Articles, there were also some ambiguous points on which they needed the help of domestic Departments because issues were completely out of their own field of expertise. So, the FO was keen to receive observations on draft Articles 31 (social security regulations) and 35 (acquisition of nationality) on which the FO was totally dependent on the Ministry of Pension and National Insurance (MPNI)’s and the Home Office’s view, respectively.24 However, not all departmental views met with the approval of the legal experts of the FO. So, on occasional points such as draft Articles 25 (diplomatic wireless) and 39 (diplomats in transit) there emerged long debates and outstanding differences with the respective Departments.25 On these points, the FO had its own interpretation and it proved difficult to convince the departments of the superiority of its arguments. Despite, the majority of suggested amendments met with the general approval of the Whitehall Departments and the suggested FO amendments remained unchanged. Looking at the suggestions in the final UK commentary on the 1958 ILC draft Articles, most of HMG’s comments aimed at details within the Articles and tried to clarify the scope of the terms applied. HMG made clear that the offices away from the seat of the mission, referred to in draft Article 11, were to be understood as only such offices were directly connected with the mission. On draft Articles 12 and 15 (start of the functions of the head of the mission and precedence), that provided for two alternative procedures for determining both the date of the start of the functions of the head of mission and their order of precedence, HMG explained that the adoption of the same alternatives was not to be taken to imply that these were to be adopted in each case. Furthermore, the British comments asked for clarification on the inviolability of mission property. Here it hinted on the practical difficulties which might be caused by (improperly parked) motor cars and advocated that inviolability should not be absolute unless the property concerned was in the possession, or under the control, of a diplomatic agent. Moreover, the commentary referred to points in the draft Articles in which British diplomatic practice differed. While it agreed with the principle of free movement for diplomatic agents (Article 24), HMG hinted indirectly at the restrictions which were imposed at that time by the Soviet Union on British diplomats in Moscow. As a result, and guided by the principle of reciprocity, HMG reserved the right to impose restrictions on the movement of Soviet diplomats in London. Glasse (FO) letter to UK delegation at UN, 14 May 1959, TNA, FO372/7515. For draft Article 25, see discussion with GPO; for draft Article 39, see discussion with the HO.

24 25

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Concerning the immunity from jurisdiction, enunciated in Article 29, HMG mentioned that the term ‘real action’ was no longer used in English law and, hence, the precise scope of the exception in Article 29, paragraph 1(a), needed clarification.26 However, the most important questions arose in the interpretation of the tax and custom exemption provisions referred to in Articles 32 and 34. In its comments on these Articles, HMG repeated its general readiness, on a reciprocal basis, to grant diplomatic agents the right of exemption of premises from local taxes. However, it would do so not because of long-standing diplomatic custom but as an obligation ‘arising out of a convention’.27 Nevertheless, HMG criticized the wording of subparagraph (a) of Article 32. According to UK practice, ‘indirect taxes’ applied to taxes which in the United Kingdom were known as excise duties, including purchase tax and customs duties on goods not imported or cleared from bond by the diplomatic agent. In this connection (while recognizing that this was rather the exception than the rule), it was pointed out that in particular cases a tax which is often incorporated in the price of goods is sometimes payable separately and therefore would not fit the wording of subparagraph 1(a). Similarly, HMG disagreed over the scope of exemptions from customs duties and inspections regulated in the provisions of Article 34. HMG suggested that paragraph 1 of the Article should make clear that the exemptions were only applicable to Articles imported directly or withdrawn from bonded warehouse by the diplomatic agent or mission. Therefore in paragraph 1(a), it suggested replacing the phrase ‘Articles for the use of the diplomatic Mission’ with ‘Articles consigned by the sending state for the official use of its diplomatic Mission’. Furthermore, HMG intended to restrict this privilege to diplomatic agents only and aimed for a word change in paragraph 1(b) so that the provision could not be interpreted to fit the personal use of servants of the diplomat’s household. As before, HMG stressed that the exemption of a diplomatic agent and his family from customs and duties was not required by customary international law. Again, it would be prepared ‘to accept the obligation to grant customs exemption as an obligation arising out of a Convention’.28 However, this again was The introductory sentence of Article 29 granted immunity from criminal, civil and administrative jurisdiction and was qualified, inter alia, by paragraph 1(a) referring to real action relating to private immovable property situated in the territory of the receiving state. 27 Final version of draft comments prepared by the ILC on Diplomatic Intercourse and Immunities, TNA, FO372/7515, Article 32. 28 Final version of draft comments prepared by the ILC on Diplomatic Intercourse and Immunities, TNA, FO372/7515, Article 32. 26

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subject to some minor comments and insistence that custom duties should only cover foreign goods but not British-produced items such as Scotch whisky.29 As we shall see, the latter will become a major sticking point during the British ratification process of the 1961 Vienna Convention and almost impeded a successful ratification of the Convention by the British government.

Whitehall comments on the ILC drafts A look at the archival documents on the preparation of the British commentary shows that already in the late 1950s no Whitehall Department was entirely detached from policy positioning towards the ILC draft Articles. Consultation with other Whitehall Departments was part of a ‘political litmus test’. In the preparations, such procedure served the FO essentially in three ways. First, it helped show the FO which ILC draft Articles were likely to become a source of irritation, and to which degree these changes were necessary to guarantee that no vital interest remained uncovered. Secondly, consultations were essential in those cases in which the ILC drafts did draw on subject matters which lay outside the FO competence and where its adoption would directly affect domestic affairs. In these cases, consulting Whitehall Departments not only did mean an intake of expertise and knowledge but, thirdly, was also a reassurance for the subsequent ratification of the final Convention. In this respect, the comments of the Cabinet Offices such as the Home Office, Treasury and the LCO30 were of special interest to the FO. Although the FO was instructed from 1957 onwards to contact all interested Departments, certain Whitehall Departments were contacted earlier than others. It was that particular Departments had an obvious interest in the ‘diplomatic machinery’.31 However, as a reflection of an unwritten hierarchy between Cabinet Departments, a British view would Paragraph 1 did not take account of the position of States in which customs exemptions for diplomats were granted without the need of any legislation. 30 The LCO existed between 1885 and 1971. From that year onwards, it became known as Lord Chancellor’s Department before in 2003 it was renamed in the Department for Constitutional Affairs. In 2007, it changed its name to the Ministry of Justice. 31 A term which, according to Richard Langhorne, was created to refer to the subject matter of the Vienna Conference on diplomatic intercourse and immunities. R. Langhorne, The 1961 Vienna Convention on Diplomatic Relations: History and the Future (Symposium to mark the 50th anniversary of the 1961 Vienna Convention on Diplomatic Relations, Leuven, 2011), p. 1. 29

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not be complete without the input of the Home Office, the LCO and the Treasury. The Ministry of Defence was not separately contacted before the circular notice was sent. This was not surprising, having in mind the legal issues on diplomatic privileges and immunities in which no security issues were at stake. What was surprising, however, is that the CRO was skipped at this stage of the preparations. The draft Articles prepared by the ILC evolved around three main aspects of the diplomatic machinery: diplomatic protocol, diplomatic immunities and diplomatic privileges. The in-depth preparation for the Vienna Conference, expected to produce an internationally binding convention, required the attention of a number of Whitehall Departments. Next to the FO and CRO, these were particularly the Treasury, the Home Office, the MPNI, the Post Office and the LCO. Because of the legal nature of the draft Articles, it was not only a question of expertise but also a matter of role in Whitehall that securing the approval of the LCO was vital to the FO. The LCO (predecessor of the Ministry of Justice) had been the principal legal Department and thus a key department; its core function consisted to foster the fair, efficient and effective administration of justice in England and Wales.32 The responsibilities of this influential Department stretched from Court Service, the Public Records Office over to Land Registry and the Northern Ireland Court Service.33 The Home Office deals with internal affairs of England and Wales as they are not conferred to other Departments. It is mainly concerned with the maintenance of law and order, the efficiency of the police service, the treatment of offenders, the legislation on criminal justice, the control and naturalization of aliens. These areas of responsibility overlapped the ILC draft Articles on several points, including the personal inviolability of mission personal and the inviolability of mission premises, and the acquisition of nationality of children of diplomatic personnel. The Treasury’s involvement in the preparations was necessary for at least two aspects. The Treasury Department has traditionally been a Department of very high standing in the British Cabinet and its opinion carried (and still does) much weight in foreign policy making. However, the Treasury was not only powerful but had a keen interest in the matter of diplomatic privileges. The ILC drafts touched on a number of fiscal issues, including the exemption of taxation of diplomatic personnel or the custom and excise privileges enjoyed by them. Thus, in the first place, it were the Board D. Woodhouse, The Office of Lord Chancellor (Antwerpen: Hart, 2001), p. 39. By the turn of the century, the Lord Chancellor’s Department maintained a body of staff of about 12,000 officials. Ibid., p. 39.

32 33

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of Revenue Income34 and the Board of Customs and Excise35 which were deeply involved in the preparation of the British position on the ILC draft Articles. Furthermore, the Ministry of Pensions and National Insurance had also its stake in the preparations of the commentaries and Britain’s final strategic position on the draft Articles on diplomatic intercourse and immunities. The MPNI had been responsible for the administration of war pensions, family allowances and national insurance. It was this latter responsibility that resulted in the involvement of the MPNI in the preparation of the Britain’s position on the ILC drafts. Last but not least, one of the oldest HM Departments, the General Post Office (GPO), had its say on the Article concerning the principle of freedom of communication and the usage of diplomatic wireless.

Her Majesty’s Home Office The FO invited the Home Office as one of the first Whitehall Departments to give its observations on the draft Articles on diplomatic intercourse and immunities. Its comments tackled issues relating to five provisions, namely Articles 20 (inviolability of mission premises), 27 (personal inviolability), 35 (acquisition of nationality), 39 (diplomats in transit) and 40 (duties regarding the laws of the receiving state). While its comments on the inviolability of mission premises, personal inviolability and the duties regarding the laws of the receiving state were more of an advisery and a warning character, it felt more strongly about the other two points; particularly the interpretation of the diplomat in transit caused an affront between the Home Office and the FO. Regarding draft Articles 20, 27 and 40, the Home Office was concerned about the contrast between the provisions on personal immunity (draft Article 27, its commentary and Article 40, paragraph 1) and on the right The Board of Inland Revenue (BIR) was constituted under the Inland Revenue Board Act, 1849 by the consolidation of the Board of Excise and the Board of Stamps and Taxes. In 1909 the administration of excise duties was transferred to the Board of Customs. The BIR is responsible for the management and collection of income tax, surtax, profit tax, estate duty, stamp duties and other direct taxes, and also for the Inland Revenue taxation, for certain purposes on behalf of other Government Departments. 35 Commissioners of Customs were first appointed in 1671. The Excise Department was formerly under the Inland Revenue Department and was amalgamated with the Customs Department in 1909. The Board was directed by a chairman but understood the authority of the Treasury Department. Whitaker (1961), p. 369. 34

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of the diplomatic mission to use its premises for prescribed purposes, the so-called ‘ franchise de l’hôtel’.36 For the Home Office, the latter point in particular aroused the suspicion that the Convention would abrogate, or at least weaken, existing exceptions to the principle of the inviolability of mission premises. For them these exceptions seemed very ‘useful to have in reserve’ for cases in which state security would be at risk, and that the decision, exceptionally to give away certain rights, should be taken only after ‘very careful consideration’.37 In other words, although the Home Office was aware of the need for protection of British diplomats and missions abroad, it was also important, according to them, not to detract from the legal possibilities which emerged from customary law in order to deal with serious abuse of inviolability by foreign embassies in London. 38 As a very last resort, the receiving state should still be able to enter the mission premises but the terms of the draft Convention would make it difficult to maintain this position. As a result, the Home Office suggested that the British delegation should take a similar line to that of Japan, Switzerland and the United States in their comments on Article 16 of the 1957 draft. This was in fact exactly the opposite of the FO’s plans. In contrast to the suggestion, it was keen to avoid any discussion on this principle and on the advice of Sir Gerald Fitzmaurice the Home Office observations were not mentioned in HMG’s commentary.39 Fitzmaurice feared that any express limitation on the general terms of this Article could cause very considerable difficulties for British resident missions. Cold War confrontations were certainly an issue, and although the Soviets had respected the full inviolability of mission premises in the past, 1957 Draft Articles, Commentary to Article 16 in United Nations Secretariat, Codification Division, Office of Legal Affairs, YBILC 1957: Volume II, Summary records of the ninth session (New York: United Nations, 1957), Report of the International Law Commission to the General Assembly, paragraph 1, p. 137. 37 J. K. T. Jones (legal adviser, HO) to Francis Vallat (legal adviser, FO), letter, 9 February 1961, TNA, FO372/7574. 38 Jones (HO) later explained to Vallat in a letter shortly before the Conference began that it was easily to conceive cases in which people were held within the embassy against their will and later smuggled abroad or, in contrast, a British who had committed a serious offence against the Official Secrets Act would be given asylum in a foreign embassy. Jones (HO), to Vallat (FO), letter, 9 February 1961, TNA, FO372/7574. 39 Sir Gerald Fitzmaurice argued that the UK should not raise the point and if other states would do he expected the British delegation to refer to generally accepted limitations which were not needed to be mentioned. Furthermore, the special rapporteur Sandstroem said in the ILC that in cases of urgency the immunities must give way to the paramount needs of life. Lush (FO) letter to Jones (HO), 17 February 1961, FO372/7574. 36

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they should not be given any excuse for not doing so in future.40 In any case, the FO expected that Switzerland would raise the point again during the Conference negotiations. However, and in contrast to the United States and Japan who confined themselves to exceptions in cases of fire and epidemics, the Swiss were the only ones to refer to a ‘right’ to prevent the committing of a crime.41 Such cases had already been dealt with in the 1928 Havana Convention.42 Article 17 of the Havana Convention made it clear even when surrender was refused, the local authorities could do little more than guard the embassy to prevent escape.43 Christopher Lush, assistant legal adviser to the FO and later a member of the UK delegation at Vienna, doubted that the majority of states would be willing to give such a power to the receiving state. He argued that this should also be the UK line of approach despite the fact that many states in Latin America had given way to the reality of the right of asylum, which was considered under British practice a ‘gross misuse’ of diplomatic inviolability, as the receiving state was entitled to enter the mission premises to arrest such a suspect. As to the official line of the British government, eventually the Home Office decided not to press the issue. However, before the Conference started it briefly reminded the FO in February 1961 that it was essential to have a clear position before the expected discussions at Vienna would resume.44 While the Home Office could hold back its reservations on the inviolability of mission premises, it drove a harder line on draft Articles  35 (acquisition of nationality) and 39 (diplomat in transit), causing much concern on the side of the FO. For the Home Office, draft Article 35 was defective in many ways and, in principle, it would have Referring to the Soviet approach on mission inviolability, the assistant legal adviser Lush mentions a case in which a man who had committed an offence against Soviet law was hiding for a long time in the British embassy in Moscow. Lush (FO), minute, 10 February 1961, TNA, FO372/7574. 41 Lush (FO), minute, 10 February 1961, TNA, FO372/7574. 42 Although the Havana Convention had its shortcomings, not reflecting universal practices and terminology, it was held in high standing particularly between Latin American delegations. 43 The wording of Article 17 of the Havana Convention is: ‘Diplomatic officers are obliged to deliver to the competent local authority that requests it any person accused or condemned for ordinary crimes, who may have taken refuge in the mission’. Lush (FO), minute, 10 February 1961, TNA, FO372/7574. Lush later mentions the ‘Sun Yut Sen’ case in which the Chinese legation yielded to the diplomatic pressure, eventually releasing their prisoner under the threat of a declaration of persona non grata or severance of diplomatic relations. Lush (FO) to Jones (HO), letter, 17 February 1961, TNA, FO372/7574. 44 Jones (HO), letter, 9 February 1961, TNA, FO372/7574. 40

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liked the Article to be deleted.45 However, in its observations to the FO it did not say as much explicitly but explained why it would be extremely difficult to accept this Article as it stood. The Home Office interpreted the effect of this Article as trying to avoid a child born in the receiving state to a female diplomat (even if fathered by a national of the receiving state) acquiring the nationality of the receiving state. However, there were at least two difficulties with this approach. The first difficulty arose because it involved a departure from the United Kingdom’s principle that only paternal descent was relevant for the determination of nationality. Secondly, there was a danger that such a child could remain stateless. The FO agreed with the Home Office and accepted its observations on draft Article 35 as a basis for its final comment.46 While both offices agreed relatively easily on this point, opinions greatly differed on the interpretation of another Article dealing with the rights and extent of immunities of diplomats in transit. First of all, it must be noted that the internal discussion between the Home and FOs on the provision regarding the diplomat in transit displays how sensitive domestic policy-makers were about issues that could be interpreted as making even the slightest extension of diplomatic immunities. Although the FO tried to play down the differences on Article 39,47 different expectations and accounts of the current rights of diplomats in bona fide transit remained an issue. The Home Office based its objections mainly on the argument that the draft Article moderated current state practice and extended diplomatic immunities which (if accepted) would mean introducing controversial legislation. The Home

FO, cypher no. 222, 10 April 1961 from FO to UK delegation at Vienna, ‘following for Vallat from Home Office on Art. 35’, TNA, DO161/138. 46 ‘A child of a male member of the Mission not being a national of the receiving state, shall not, by sole reason of the child’s birth in the territory of the receiving state, acquire the nationality of that state. Nor shall members of the Mission, not being nationals of the receiving state, and members of their families forming part of their household, for any other reason acquire the nationality of the receiving state solely by the operation of its law’. Final version of draft comments on the draft Articles prepared by the International Law Commission, Article 35, TNA, FO372/7515. 47 Lush of the FO remarked in a draft circular (which later was part of the draft briefing for the UK delegation to the United Nations) that the ‘outstanding differences’ should be put in singular (hence, excluding any reference to the differences over draft Article 25 on the freedom of communication) and minimized in its importance. Lush (FO), minute September 1959, on draft on IOC (59) 135, Cabinet Steering Committee on International Organizations, Working party on Privileges and Immunities to ­Todd-Naylor (FO, Executive Officer), TNA, FO372/7515. 45

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Office’s interpretation of the Article was that diplomats in transit together with their families would be granted full immunity and a far-reaching ‘right of innocent passage’48 which would put them above British law and which, whenever it came up in parliament, led to an outcry.49 Furthermore, the Home Office understood that the diplomats concerned should be on duty in transit between post or post, or post and headquarters, and it was important to make clear that a mere visit would be excluded.50 The FO, on the other side, saw things differently. Although it recognized the potential difficulties that future legislation would cause (although the need for legislation was not a certainty), it argued that the Article could not be construed to mean that either a diplomat or his family would be beyond law or that the diplomat in question would enjoy ‘full’ immunity. 51 The Home Office alluded to the oft-heard argument that diplomats regularly misused their diplomatic privileges, especially regarding minor traffic offences. Another problem in this regard was that of speeding by diplomats in transit, which would be not only seemingly above the law but also out of the country very soon and therefore out of the reach of British jurisdiction. But for the FO, the ‘speeding [ticket] argument’ was, according to Fitzmaurice, a general problem, but not a particular one as in regard of diplomats in transit. The Article regarding diplomats in transit embodied a sound principle, and the Home Office’s criticism, according to Fitzmaurice, was misplaced. However, to appease the Home Office and to show that not all of their observations were dismissed, their comments were taken into

The right of innocent practice emerged from the custom of allowing free and innocent passage to a diplomat conferring him privileges and immunities out of courtesy but of no legal obligation. Past state practices and a recent trend in judicial decisions have fostered this practice; however, there has been some divergence of opinion particularly on the extent of such immunities. When preparing the draft convention, the International Law Commission could not identify an unambiguous state practice. Furthermore, some writers were more restrictive than others which made the issue difficult to grasp. Therefore, the final ILC text formed a compromise in which diplomats got only greater rights as it was to ensure their function as a diplomat. For further information, see B. Sen, A Diplomat’s Handbook of International Law and Practice, 2, rev. and enlarged ed. (The Hague: Nijhoff, 1979), Position in Third States, pp. 203–10. 49 The HO put the illustrative example of speeding, in which a possible predilection of diplomats or even their sons for fast cars was often source of controversial debate in Parliament. Sir Samuel Hoare (HO, Under-Secretary of State, International Division) letter to Ursula Todd-Naylor (assistant, Research Department, FO), 11 June 1959, TNA, FO372/7515. 50 Hoare (HO) to Todd-Naylor (FO), letter, 11 June 1959, TNA, FO372/7515. 51 Todd-Naylor (FO) to Hoare (HO), letter, 15 July 1959, TNA, FO372/7515. 48

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account. The FO solidified the position by explaining that the provision would not only apply to a diplomat in transit who was ‘on duty’ during his passage. In response, Miss Joyce Ollett of the Home Office mentioned that her department was glad about the restricted interpretation of the term ‘diplomat in transit’ but that draft Article 39 was still unacceptable to the Home Office and, consequently, the whole commentary as such. Giving full diplomatic immunity to diplomats and their families during bona fide transit still seemed an extension of existing law to the Home Office, which only recognized a right of innocent passage. Hence, the provision would need legislation which, as the LCO confirmed, was likely to be difficult and controversial.52 Once again the FO could not agree. It argued that ‘full diplomatic immunity’ and the ‘right of innocent passage’ should be differently interpreted. Miss Todd-Naylor tried to explain that diplomats were not granted ‘full’ immunity but, rather, inviolability.53 This meant that diplomats would be immune to arrest or any legal process which interfered with their freedom to leave the country but it would not mean total immunity from civil jurisdiction. This ‘full’ immunity was reserved for the Ambassador alone. As regards the ‘right of innocent passage’, Sir Gerald Fitzmaurice was of the opinion that it had no meaning or reality in the present context. Article 39 did not confer on the diplomat any right of entry into, or transit through, the country concerned and, consequently, it would give the diplomat no extra rights at all. His argument made sense, bearing in mind that diplomats still had to have passports just like anyone else and, where visas were necessary, a diplomat had to obtain them the same as everyone else. Therefore, in these respects, diplomats were no better off than ordinary travellers and the point of the granting immunity in third states to diplomats could be reduced to the same practical reason which lay behind all diplomatic privileges and immunities; namely, that this immunity was necessary to the exercise of the diplomatic function.54 Concluding, for the FO, draft Article 39 stated a generally recognized rule of international law and arose out of the immunity enjoyed by a diplomat in the country in which he carried out his functions. However, the Home Office remained unconvinced by the FO’s line of argument and was still concerned at the prospect of controversial Joyce Ollett (HO) to Todd-Naylor (FO), letter, 20 July 1959, TNA, FO372/7515. More precisely, personal inviolability in draft Article 27 and inviolability for his property in draft Article 28. 54 Sir Gerald Fitzmaurice (legal adviser, FO), minute, 21 August 1959, TNA, FO372/7515. 52

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legislation to which the public and Parliament might object on the grounds that it further extended diplomatic immunities.55

The Lord Chancellor’s Office The LCO was formally invited to comment on the set of provisional ILC drafts as early as on 10 March 1958.56 Together with a list of the submitted comments, the LCO was asked to give its observations within a three-week time frame.57 The LCO responded exactly one month later. In its view, the draft Articles on diplomatic immunity from jurisdiction and waiver of diplomatic immunity were within the scope of current practice and, at that stage, only one Article needed to be singled out.58 Paragraph 3 of Article 28 (Article 36.3 of the 1958 ILC draft) provided that private servants of members of the mission should enjoy immunity only to the extent admitted by the receiving state. Any jurisdiction assumed by the receiving state should be exercised in such a manner that it would avoid undue interference with the conduct of the business of the mission. 59 Seen in the context of the whole Article, it was understood from the commentary of the ILC report that while paragraph 1 established the rule that all administration and technical staff should be given the same privileges and immunities as diplomatic agents, private servants of the head of mission were, by contrast, to be deprived of this long-standing right. The members in the ILC thought that the mission’s interests would be safeguarded if the receiving state were duty-bound not to interfere unduly with the mission’s conduct of business. However, the LCO thought

A short but illustrative newspaper Article published in the Daily Express on 27 February 1961 with the title ‘Privileges’ Army’ pictures a horrendous scene of that present days in which 4,000 foreigners already did not pay any taxes in Britain and could not be sued. Furthermore, it mentions plans of UN officials at Vienna to extend those privileges and immunities also to chauffeurs and chefs in embassies. Concluding, it urged the reader that Britain should not accept any more privileged foreigners. Article found in: TNA, T3205. 56 Arthur Watts (legal assistant adviser, FO) to the LCO, letter, 10 March 1958, TNA, LCO2/8478, TP20015/3 and circular IOC (PI) (58)8. 57 The FO intended to prepare some comments for the upcoming UNGA and, therefore, had set such a narrow deadline. 58 K. M. Newman (senior legal assistant, LCO) to FO, letter, 10 April 1958, TNA, LCO2/8478. 59 Article 28, of 1957 draft Articles dealt with persons entitled to privileges and immunities. 55

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the purpose of paragraph 3 was unclear and its consequences were ‘otiose’ and ‘incapable’ of being translated into legislation. It suspected from the ILC’s accompanying commentary that, eventually, courts would be obliged to accommodate the interests of a mission if a case of ‘undue interference’ should occur. But already the legal clarification of ‘undue interference’ seemed questionable with the prospect that the LCO would probably object to legislation which intended to give such wide protection.60

The Treasury and its Revenue Departments On 4 March 1959 the FO sought the Board of Inland Revenue’s observations on the 1958 draft Articles.61 The draft Articles touched on fiscal privileges in 9 out of the 45 Articles, on which the Board of Inland Revenue and the Board of Customs and Excise approved the substance, with only few exceptions. However, Articles 32 (personal exemption from taxation), 34 (duty-free entry for goods of diplomatic staff), 36 (persons entitled to diplomatic privileges and immunities) and 38 (death duty) remained disputed. The Revenue Departments, basing their view on domestic law and regulations, collided with the FO’s understanding of what would be internationally acceptable and therefore realistically achievable at Vienna. The outcome was a ministerial-level decision to smoothen the waves between the Board of Inland Revenue, the Board of Customs and Excise on the one hand, and the FO on the other. On 27 April 1959 Leonard Warr, principal at the Board of Inland Revenue, responded to CW Courtness’ invitation for observations and forwarded a preliminary commentary on draft Articles 21 (exemption of mission premises from taxation), 32 (the diplomatic agent’s exemption from taxation) and 38 (duration of diplomatic privileges and immunities). The bone of contention at this stage was mostly the latter Article concerning the collection of death duties. Draft Article 38 provided that estate duty should be charged only on the immovable property of a deceased diplomat. Under present UK practice the only special exemption from estate duty which the foreign diplomat enjoyed was that, if he had not been normally domiciled in the United Kingdom, estate duty was not

W Bourne (LCO) to CW Courtness (FO), letter, 11 March 1959, TNA, FO372/7515. Courtness (FO) to Leonard Warr (principal, tax and stamps division, BIR), letter, 4 March 1959, TNA, IR4017448.

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charged on any movable property physically situated in the embassy or in the ambassador’s official residence (if owned by his government). The Inland Revenue thought this was far too wide and it was not prepared to approve for it.62 A similar problem arose in respect of Article 34 and the duty-free entry for goods of diplomatic staff. Traditionally, the United Kingdom restricted the right of duty-free entry for imported goods to members of the mission with diplomatic status. Therefore, diplomats could import tobacco, liquor and other items produced outside the United Kingdom and intended for their personal use or for that of the diplomatic mission. Draft Article 34 would have extended this privilege to non-diplomatic staff, junior members of the mission such as typists and cypher clerks (but not private servants) and their families. The FO mainly ignored objections about this extension, saying that opinion at Vienna would be against the Inland Revenue’s position63 and the general trend was in the direction of treating all categories of staff equally favourably. In any case, this privilege was already extended to administrative and technical staff of the missions on a bilateral basis. Equally, Vallat saw considerable difficulties with the forwarded amendments to draft Article 36, persons entitled to diplomatic privileges and immunities. Warr of the Inland Revenue had suggested restricting income tax exemptions to the private servants of the head of mission as opposed to the servants of diplomatic agents generally. According to Vallat, Warr’s suggestion would be hard to justify and look mean, and other delegations were unlikely to support such a stand. Evan Maude of the Treasury showed a certain sympathy for the FO’s argument. Once the distinction had been removed as regards the diplomatic immunities of different members of missions, it would be difficult to defend drawing a distinction between the ambassador’s cook and the First Secretary’s cook.64 But the Board of Inland Revenue refused to exempt the salaries of domestic servants of diplomatic personnel generally and remained opposed strongly to Article 36.65 Maude would have been inclined to drop it the Inland Revenue’s demand given that Vallat felt so strongly he was unwilling to table the amendment desired by the Inland Revenue unless he was so instructed by Ministers; however, Maude would not give way. Tax privileges were too sensitive a subject and likely to attract too much hostile public and parliamentary attention if Warr (BIR), minute, undated, IR4017448 613. Albert Ashford (assistant secretary, BCE), draft letter, 1 March 1961, TNA, T3205. 64 Evan Maude (Chancellor’s private secretary, Treasury), to Warr (BIR), letter, 7 March 1961, TNA, T3205. 65 Warr (BIR) to Maude (Treasury), letter, 13 March 1961, T3205. 62

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legislation had to be introduced. Eventually, as no preliminary solution could be found, shortly before the start of the Conference, Vallat asked for ministerial instructions for the negotiations at Vienna.

The Ministry of Pensions and National Insurance On 12 February 1959 the MPNI was contacted by the FO to obtain assistance on producing the commentary on draft Article 31 concerning exemptions from social security legislation.66 In so doing, the FO supplied the MPNI with the set of draft Articles and its first attempt at a commentary. Under draft Article 31, members of a mission including family members ‘forming part of the household’ would be exempted from the receiving state’s social security legislation but not as regards the payment of any contributions for contracted ‘servants and employees’. In its response to the FO, the MPNI expressed polite concern about the formulation of draft Article 31 which, it said, was unacceptable in its present form. The MPNI already had some experience with the question of national security provisions in the international sphere; in March 1948 it had written a guidance letter to the CRO in which it confirmed that it was established British practice to ask foreign diplomats as well as high commissioners to pay National Insurance contributions for employed, British subjects who were permanently resident in the United Kingdom.67 Accordingly, it was clear that, as provided for in draft Article 31, foreign diplomats were generally exempted from social security legislations. However, there were certain other provisions which the MPNI rejected or which it thought needed changing. First of all, the Department suggested changing the wording from ‘members of their families who form part of their households’ to ‘dependents who are resident with’. Such rephrasing would carry the benefit of covering not only members of the family who were not employed by the mission but also those who were in civil employment. According to its reasoning, family members who were in civil employment would not be dependent on the diplomat and, consequently, they ‘should be obliged to pay [British] contributions’.68 Secondly, the MPNI pointed out that different states had The Ministry of Health was also contacted as regards the implications of draft Article 31 but they had no comments to make. Todd-Naylor (FO) minute, 30 April 1959, FO372/7515. 67 Except Australians and Canadians who are only temporarily resident. 68 Ian Gilbert (MPNI) to Courtness (FO), letter, 17 March 1959, paragraph 1, TNA, FO372/7574. 66

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different systems of social security. Hence, the MPNI suggested clarifying this point by including in the commentary a reference to a generally agreed definition. As to its own policy, it preferred using the definition in the International Labour Organization (ILO) Convention No. 10269 in order to make clear what is understood to be included in social security.70 Thirdly, the MPNI suggested some minor amendments in terminology of which two of the more important ones need mentioning here. First, the exact difference between employees and servants was not clear to the MPNI. For its purposes, the term employee designated anyone other than servants. Accordingly, the MPNI suggested simplifying the wording and deleting the term ‘servants’. Secondly, the MPNI thought there should be a reference to existing multilateral social security agreements. The MPNI argued that these were considerable in number and had the resources to include a precise provision setting out the rules to which legislation should apply.71 The MPNI included all these points in its own draft comment, which accompanied an explanatory letter to the FO. The FO found the MPNI remarks very useful, particularly because its detailed background analysis was of a quality which they ‘d[id] not always get from outside depart[ments]’.72 However, the FO could still not accept the revised draft comment as suggested by the MPNI.73 There were multiple reasons, most of which were of a technical nature rather than principled nature. For instance, while the FO generally agreed about it being advantageous to substitute the MPNI’s wording regarding ‘dependents and members of the family’, it doubted that such an amendment could be successfully pressed at Vienna. Defining the term ‘family’ had already caused a long debate within the ILC and the formula adopted was ‘the best that could be achieved’.74 Another MPNI observation, which found no entry into the commentary, was the The Social Security (Minimum Standards) Convention, 1952 (No. 102), is a main convention on social security issues codified by the International Labour Organization. It is the only international instrument, based on basic social security principles, that establishes a universally agreed minimum standard for the branches of social security. 70 This definition covers medical care, sickness, unemployment, old age, employment injury, family maternity, invalidity and survivors’ benefits but excluded education, housing and welfare facilities. 71 HMG had over 20 bilateral agreements with European and Commonwealth countries alone which was quite a lot having in mind the number of recognized States in the 1950s. 72 Courtness, (FO), minute, paragraphs 1 and 2, 19 March 1959, TNA, FO372/7515. 73 Actually, Courtness, the first level contact within the FO, would have even approved the MPNI’s revised version but Watts, assistant legal adviser, was more sceptical. 74 Watts (FO), 24 March 1959, minute, paragraphs 1 and 2, TNA, FO372/7515. 69

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perceived redundancy of the phrase ‘employees and servants’. Again, the FO could not entirely agree with the MPNI because of practical reasons and was inclined to retain the phrase. ‘Private servant’ was a defined term within the draft Articles and the use of this term was expected to be of value, even if only ‘ex abundante cautela’.75 However, generally speaking, it can be said that the FO agreed with MPNI on the essential points raised in the revised commentary. In the FO’s official response, Miss Todd-Naylor dangled the prospect that the extended meaning of social security might be added at the end of the commentary and that an appropriate reference to existing bilateral or multilateral social security agreements could be suggested. As a result, the final commentary started off with a reference to 20 bilateral social security agreements. As regards second point to draft Article 31, the FO suggested deleting the phrase which contained the controversial term ‘members of the family’ and that the term ‘social security’ should be interpreted according to its meaning in the ILO Convention No. 102. Therefore, although not all issues raised by the MPNI were included, the FO had little to add but to filter the suggestions according to whether or not they were perceived as negotiable and raise these three points in the official and final UK commentary.

The General Post Office The involvement of the GPO was of a different nature from that of other Departments such as the LCO or the Home Office. The most distinctive point was that the GPO did not raise any serious concerns but was contacted by the FO which asked for advice on draft Article 25 (freedom of communication regarding diplomatic wireless). Hence, the GPO’s observations were certainly taken into account but did not provoke any alteration of the official UK position. However, the points which the GPO raised on the diplomatic wireless issue were sound and not unimportant. The GPO’s line of approach, basically claiming that freedom of radio communication must stay within the limits of established regulations of the International Telecommunication Union, confronted the FO with arguments similar to those that Fitzmaurice had already heard during debates in ILC, and those Watts (FO), minute, paragraph 7, 24 March 1959, TNA, FO372/7515. Despite the British practice to grant private servants the same degree of immunities, the provisions of the Vienna Convention would later conceive different degrees of privileges and immunities to employees of the Mission. Private servants became a proper category of staff with the lowest degree of immunities and privileges.

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which the UK delegation would encounter later in the course of the Vienna Conference. Constituting an official Department of HMG, the GPO was copied into the recipient list of circular IOC (PI) (58)8 containing the 1958 ILC draft Articles which had been sent out to Departments in late October 1958.76 Additionally, Courtness of the FO addressed the GPO in late February and early March 1959, inviting it to comment on the draft Articles in general and on draft Article 25 (freedom of communication)77 in particular.78 The GPO also examined draft Articles 20 (inviolability of mission premises), 28 (inviolability of premises and property), 29 (immunity from jurisdiction), 36 (persons entitled to diplomatic privileges and immunities) and 39 (duties of third states), all of which had a bearing on its services and responsibilities. It replied to the FO that all but Article 29 were acceptable and no difficulties in application were expected.79 As most other domestic Departments, the GPO was against any extension of diplomatic immunities and it opposed the GPO Article 29 for two reasons. First, it granted more immunity than existed under current state practice, and, secondly, it protected the diplomatic agent even in private issues outside his professional activities. At that time, the UK practice was to relieve diplomatic agents from having to take out broadcast receiving licences. However, the GPO argued that this was the result of an administrative decision, not a legal requirement. It also thought that the draft Article might substantially weaken the British legal position in cases in which foreign diplomats interfered with domestic (security) regulations.80 Furthermore, the GPO understood that any usage of wireless transmitting apparatus would of a private nature and, hence, Lush (FO) to Jerrom (CO), letter, 20 February 1961, TNA, FO372/7574. Article 25 dealt with Diplomatic Wireless Stations on which the FO had already prepared a comment for which was probably why they mainly wanted the GPO to give their observations. 78 E. M. Perry (principal, GPO) letter to Ursula Todd-Naylor (executive officer, FO), 4 April 1959, TNA, FO372/7515. 79 As regards draft Articles 20 and 28, the GPO was interested to be able to enter the mission premises for inspections of telecommunication devises. Comments on Article 36 were minor and remembered on the practice of extending receiving licence exemptions. Regarding draft Article 39 the GPO briefly observed that the freedom and protection of messages in code and cypher is also regulated under Article 38 of the International Telecommunication Convention and that no new legislation would be required. 80 Amateur model control licences were only given out to British subjects. Diplomatic agents could therefore only be eligible for private mobile radio licences for use only above 60 Mc/s. Ibid., Article 29. 76

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had no connection with the ‘freedom of communication’ of a diplomatic mission inherent to draft Article 25. Consequently, the GPO wanted, in the event of a serious breach, to be able to revoke broadcasting licences and, with the guidance of the FO, to seek to prosecute. For its part, the FO was keen to avoid any additional debate on this contentious issue and, in any case, deemed the GPO satisfied with the current practice. But it was late in replying to the GPO’s observations, only doing so after the official draft comments had been submitted to the Secretary-General of the United Nations. In so doing, the FO said that the GPO suggestions would be considered in ‘connexion (sic) with any eventual debate’.81 Or, in the words of assistant legal adviser Arthur Watts, ‘none of the comments [. . .], useful though they undoubtedly are, requires any addition to or modification of our Comment’.82 However, the FO had subjected Article 25 (diplomatic wireless stations) to detailed scrutiny. Diplomatic wireless transmission was only indirectly mentioned in draft Article 25, by the formulation ‘messages in code and cypher’. In itself this was not problematic and did not require any alteration of current UK law. The use of both codes and secret language in both personal and Government telegrams was obviously already permitted and of long standing.83 For the FO, the difficulty lay in the language and implication of the last two sentences of paragraph 2 of the ILC’s commentary. The FO could not agree with the GPO’s concurrence with the commentary’s proposal that the freedom of communication should be qualified by reference to the provisions of the international conventions on telecommunications84 (which meant mainly that Governments were obliged to avoid harmful interference). Indeed, as EG Willian of the communication department in the FO remarked, if diplomatic wireless transmitters were not even mentioned in the Todd-Naylor (FO) to Perry (GPO), 9 June 1959, TNA, FO372/7515. Watts (FO) minute on GPO comments, 28 April 1959, draft Articles on Diplomatic Intercourse and Immunities, under ‘Other Articles’, TNA, FO372/7515. 83 Article 38 of the International Telecommunication Convention which regulated the international use of telegrams. This was translated into domestic law under the Telegraph Regulations of 1954 (for inland telegrams) and the Telegraph Regulations of 1956 (for British Commonwealth and foreign written telegrams). Perry (GPO) to Todd-Naylor (FO), letter, 4 April 1959, Article 25, p. 2, TNA, FO372/7515. 84 Article 22 (regulation 488) of the International Radio Regulations (which completed the International Telecommunication Convention of Buenos Aires, 1952) regulated that ‘No transmitting station may be established or operated by a private person or any enterprise without a licence issued by the government’ of the receiving state. Article 45 provided that ‘all stations, whatever purpose, must be operated as not to cause harmful interference’ with an exemption being made in Article 48 in which reservations were put in place for military installations. 81

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International Telecommunication Union (ITU) Convention, it was hardly logical to regard wireless transmitter stations as bound by regulations of that Convention.85 To the FO it seemed obvious that there was an ‘ulterior’86 behind the attempt to include this qualification, and the historic and unrestricted right to free diplomatic communication, which was fundamental to the development of diplomacy, ‘must be held at all costs’.87 After all, as Watts put it, ‘that these communications can now be made by radio is basically irrelevant – just as much as diplomatic bags are now carried by aeroplanes instead of by horse-transport’.88 The GPO was surprised at the FO’s belief that international regulations on telecommunication did not apply to diplomatic wirelesses but the FO did not take up the GPO’s disapproval89 and stressed in its final commentary on the ILC draft the supremacy of specific rules of diplomatic law over general obligations emerging out of other international regulations. Of course, the FO recognized that diplomatic wireless could cause harmful interference which needed to be avoided but they argued that diplomatic transmitter was neither mentioned in these international regulations nor did it apply to States. However, it was the prospect of grave damage to their overseas communication that drove the FO to champion an unqualified right of freedom of communication.90 But while the FO was able to make sure its view was included in the commentary, the wording to which it objected gave warning that there lay ahead a battle with the many new and developing countries in Vienna.

The Commonwealth Relations Office Until July 1966 London contacted other members of the Commonwealth not through the FO but through the CRO, whose genesis will help understand the somewhat special relationship between Britain and the E. G. Willian (head of Communications department, FO), minute, 24 April 1959, draft Articles on Diplomatic Intercourse and Immunities, TNA, FO372/7515. 86 Perry (GPO) to Todd-Naylor (FO), letter, 4 April 1959, TNA, FO372/7515. 87 Watts (FO) minute on GPO comments, TNA, FO372/7515. 88 Ibid. 89 The GPO suggested that the Government of the receiving state should be informed, as a matter of courtesy, of the installation of diplomatic wireless transmitter and a reference that the provisions of the ITU Convention and the International Radio Regulations must be observed at all times. Perry (GPO) to Todd-Naylor (FO), letter, 4 April 1959, TNA, FO372/7515. 90 Willian (FO), minute, 24 April 1959, TNA, FO372/7515. 85

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members of the Commonwealth.91 In 1925 the new Dominion Office was created which took over the Dominions business of the Colonial Office. This included Britain’s daily relations to self-governing Dominions, the self-governing Colony of Southern Rhodesia (today Zimbabwe) and South African territories (Basutoland, Bechuanaland Protectorate and Swaziland) as well as the organization of the Imperial Conference.92 In July 1947 the Dominion Office merged with the India Office to form the new CRO. As of August 1947 the CRO resumed responsibilities for the relations with India and Pakistan, from February 1948 onwards also those between Britain and Ceylon. After the merger of the self-governing Colony of Southern Rhodesia with Nyasaland, the CRO resumed responsibilities for the new Federation of Southern Rhodesia and Nyasaland as of September 1953. With the independence of Ghana in March 1957 and the formation of the Federation of Malaya as of August of the same year, the CRO kept assuming additional responsibilities and with Nigeria, Cyprus and Sierra Leone becoming members of the Commonwealth, eventually, the CRO had become a communication hub for 12 members of the Commonwealth. Therefore, all the states the CRO was responsible for had somewhat of a special, familiar-like relation to Britain. This is also reflected in diplomatic practice in which Britain establishes High Commissioner’s Offices (HCOs), usually headed by a high commissioner, in contrast to other states with which Britain exchanges ambassadors and maintains embassies. By 1948 the HCOs had reached embassies and high commissioners had reached substantive equality to the status of ambassadors.93 Still, ambassador was a more widely used title which carried greater prestige than the title high commissioner, which could be understood wrong in association with Britain and its Dominions (a title that had been dropped in 1948). Despite, by the mid-1950s high commissioners cherished their position, not least because in London, high commissioners received favourable treatment in terms of protocol, such as in royal occasions, and in the start and conduct of the daily business (presentation of credentials and communication through the CRO).

On 1 August 1966 the CRO merged with the Colonial Office to form the new Commonwealth Office until 17 October 1968 when it amalgamated with the FO to form the Foreign and Commonwealth Relations Office. 92 The Imperial Conferences were the predecessor of the bi-annual Commonwealth Prime Ministers’ Conference which became known as such since 1944 (until 1969). 93 Lloyd, L., Diplomacy with a Difference: The Commonwealth Office of High Commissioner, 1880–2006, Diplomatic studies (Leiden: Nijhoff, 2007) (Lloyd (2007)), p. 121. 91

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Late recognition of the problem Despite, or particularly because high commissioners received equal status to ambassadors since 1948, it was not known as of 1958 whether a special reference to Commonwealth practices was needed in the to-benegotiated Vienna Convention. The Vienna Convention was debated on the basis of a set of draft Articles on which the ILC started its work in 1954. As mentioned above, during that time Sir Gerald Fitzmaurice was the British commissioner and legal adviser to the FO. Fitzmaurice was very active during the preparations but he was to no moment convinced that a final Convention should include a reference to the HCO or high commissioners themselves. During the first of the two sessions on which the ILC drafts on diplomatic intercourse and immunities were discussed, in 1957, no mentioning was made to this respect at all. The matter only arose in the 1958 session as the result of the Pakistani government’s comments on the 1957 ILC draft. In its commentary, Karachi reserved its position on matters of accreditation, the channel of communication used and the different title of its heads of missions in reference to divergent Commonwealth practices. During the 453th meeting of the ILC on 30 May 1958, in context of the discussion on the commencement of functions of the head of mission, the special rapporteur Sandstroem raised the question whether a reference on high commissioners should be made in the ILC draft. To that time, two out of nine ILC commissioners derived from Commonwealth countries, Radhabinod Pal of India and Sir Gerald Fitzmaurice of the United Kingdom; however, remarkably none of which spoke in favour of the inclusion of high commissioners. While Pal did not contribute to the official debate, Fitzmaurice pointed out that for three reasons it would not be wise to deal with the issue of high commissioners in the ILC drafts. First, governments in question had not been asked for their comments. Secondly, the number of these governments in which the title of high commissioner was applied were little (he said about ten), in none of which there had been difficulties in diplomatic practice. Finally, Fitzmaurice doubted (and this should later become a controversial point) whether high commissioners could be regarded as strictly equivalent to the heads of diplomatic mission, for example, the fact that the countries concerned all had a common sovereign or head of state made the whole system of accreditation entirely different. Certainly, Fitzmaurice should have shown more caution in his expression, but by directly referring to the mode of accreditation, it is not too likely that he wanted to say that high commissioners were not of the same class of heads of mission. Another indication for this interpretation was the complete silence of the Indian

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commissioner Pal who could be expected to disagree with Fitzmaurice if the latter would have meant to relegate high commissioners to a second class of heads of mission. In the subsequent short discussion, the majority of commissioners agreed that a mentioning to high commissioners would not be appropriate in the ILC draft, and in case Commonwealth countries wanted it included, they could say so at the Vienna Conference. Only commissioner Bartos of Yugoslavia remained sceptical and stressed that no reference to high commissioners would mean an omission in the ILC draft, as it was not clear to which degree the special treatment between Commonwealth members had implications on other states as well. This discussion during the 1958 ILC session shows that Fitzmaurice was aware about the possible interpretation (i.e. of Pakistan) that the ILC drafts, and resulting the Vienna Convention, should include a reference to high commissioners. He was just not of the opinion that Commonwealth practices should be included, and the final decision of the ILC not to include any reference to it (neither in the ILC draft Articles nor in the commentary) confirmed Fitzmaurice in his opinion, leaving room for the interpretation that he did not have, in his function as legal adviser of the British FO, to call for the CRO’s attention, simply because he did not think it was necessary to be involved. Despite, it is not only the FO which is to take the blame but also the CRO slept through the problem. Although not individually invited such as the before-mentioned Cabinet Offices, the CRO had been informed via a circular notice (including the draft Articles), like every other Department, and was supplied with the relevant papers in late October 1958. Eventually, a couple of months before the Vienna Conference was to start the penny had dropped and from late 1960 onwards both Offices, the CRO and the FO, started working on the problem together. On 6 January 1961, assistant legal adviser Lush of the FO invited the CRO senior legal assistant Humphrey Oxley of the CRO to give his comment on a possible application of the Vienna Convention to intra-Commonwealth relations. A little later the CRO began analysing the ILC drafts with a view to specific Commonwealth amendments, but its focus remained on the question whether or not the Convention should be applied to Commonwealth relations. Confronted with this essential question CRO officials realized the costs of their delay, complaining that Commonwealth questions had been ignored and ‘largely overlooked’.94 In early 1961, a mere two months before the Conference was to start, and three years

Lush (FO), minute, 13 January 1961, FO372/7573.

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after Pakistan and Australia had for the first time drawn attention to Commonwealth issues in their respective commentaries on the 1957 ILC draft, there was very little time to define a British position which would satisfy also the desire to coordinate a common line of approach for all Commonwealth members. But despite its determination to ‘put matters right’, the CRO had to be careful as other Commonwealth countries were ahead of Britain. Therefore, before it could act, the ground needed to be cautiously levelled to try to ensure the approbation of other members of the Commonwealth.95

The future convention and its application to Commonwealth relations Before the ‘unsuitable’ provisions within the ILC draft Articles could be tackled, it had to be decided whether the Convention on Diplomatic Privileges and Immunities should be applied between Commonwealth countries. Therefore, at the beginning of January 1961, the FO asked the CRO, as the responsible ministry, whether the Convention should apply to Commonwealth practices. The CRO took some time to consider this question as the application of the Convention as it stood was by no means free of difficulty. High commissioners and their staff did not have the same precedence, etiquette and immunities as members of foreign diplomatic missions. Applying the Convention to intra-Commonwealth relations would likely to put high commissioners on the same footing (at least in terms of diplomatic privileges and immunities) as fully fledged ambassadors. However, feelings on the feasibility and desirability were mixed. In an agitated telephone call Chadwick, the assistant director of the CRO, expressed his concern about the applicability of the draft Convention to Commonwealth relations.96 There were two ways of dealing with the problem: either amending the draft Convention throughout the whole text or inserting a general reservation excluding the application of the Convention between Although HMG had decided to tackle the problem, it seemed a little awkward that Canada had realized the problem for quite a while. The Canadians assumed that the VCDR would be applicable to Commonwealth relations and had already contacted the CRO about amendments to draft Articles 13 and 15, adding high commissioners to the text. Cole (CRO) to Wakely (CRO), minute, 2 January 1961 and the latter’s reply on 3 January 1961, DO161/137. 96 Lush (FO), minute, 13 January 1961, FO372/7573. 95

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Commonwealth countries. But both ways presented difficulties. While Chadwick recognized that it was likely the latter solution would upset some of the newly independent governments such as Ghana, he was not convinced that amending the whole text would be the best solution. While a general reservation was a common measure in the past, that is, Atlantic Charter of 1941 when Winston Churchill decided that the Atlantic Charter would find no application on the Commonwealth, such a handling did not seem feasible anymore as it would probably be interpreted by newer Commonwealth countries as denying them the ‘full trappings of independence’.97 Sir Leonard Day Wakely, an experienced India expert within the CRO, had similar doubts. As he pointed out, India was one of the Commonwealth members which were anxious to treat Commonwealth diplomats in the same way as foreign diplomats. Nor would simply adding an Article confirming that the Commonwealth would continue its existing practices inter se be enough. Meanwhile, poring over the Convention’s text with Commonwealth amendments would be a ponderous procedure and unpopular with non-Commonwealth delegations. Furthermore, rigid regulation of intra-Commonwealth relations would go against the very principle of the friendly and informal nature of this grouping of states. In contrast, assistant legal adviser Lush of the FO favoured amending the draft Convention which, he said, had two advantages. First, he felt that the required changes would not be too great and would lead to a ‘unified scale’ of privileges and immunities. Secondly, British representatives in African and Asian countries now needed the protection of such a Conventional text, for they could no longer rely on fragile local goodwill which could easily fluctuate.98 Time was running out and whichever tactical approach would be adopted, it would be necessary to brief Britain’s high commissioners in order for them to discuss the issue with the other Commonwealth governments. By 19 January 1961 (only six weeks before the Conference was to begin), the CRO had not yet decided whether or not the Convention should apply to Commonwealth practices. In a final meeting between FO and CRO officials under the chairmanship of Chadwick, it was agreed that Commonwealth governments should be approached on Confidential circular telegram from CRO to Ottawa, Canberra, Wellington, Cape Town, Delhi, Karachi, Colombo, Accra, Kuala Lumpur and Lagos (as well as Nicosia, Salisbury and Dublin), 23 January 1961, Wireless no. 36, TNA, FO372/7573 (Circular Telegram). 98 Wakely (CRO) minute for Cole (CRO), 3 January 1961, TNA, DO161/137. 97

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the basis that the Convention should be applied to intra-Commonwealth relations.99 However, in order to make this happen, amendments were necessary and draft Article 44, 2(b) concerning non-discrimination should be redrafted and newly interpreted in a way that permitted the continuance of special Commonwealth practices. Once the British stance had been roughly defined, opinions within the CRO differed over which Commonwealth governments were to be approached first. Humphrey Oxley appreciated the merits of contacting the old three Commonwealth members Australia, Canada and New Zealand first, although, because of time restraints he was eventually inclined to approach all Commonwealth members at once.100 George Cunningham maintained his preference for a more gradual method. He would have preferred a common line of approach with the settled and discrete nucleus before contacting the other 12 Commonwealth governments at large. He reasoned that, on the one hand, Canada, Australia and New Zealand would not only be the most affected Commonwealth countries by the Convention but probably, ‘the least likely to reveal any intimations they may get of our own [British] unpreparedness’ on the matter.101 On the other hand, time was short and it was also in the CRO’s interest to collect as many indications from other Commonwealth countries as they could get. Finally, on 23 January 1961, the CRO opted to send a circular telegram to the high commissioners in Ottawa, Canberra, Wellington, Cape Town, Delhi, Karachi, Colombo, Accra, Kuala Lumpur and Lagos providing them with the minimum necessary information. In this telegram the high commissioners were briefed that the British position was to apply the Vienna Convention to Commonwealth practices. The CRO expected that this would also be the line taken by Canada, Australia and Pakistan subject to some necessary amendments. Therefore, any ‘attempt to exclude Commonwealth practice from Convention might have met with strong resistance which would have done more harm than any other alternative solution’. But the draft Convention could not stay as The meeting was attended by Oxley (CRO), George Cunningham (CRO), Lush (FO) and Patrick Bushe-Fox (assistant legal adviser, FO), TNA, FO372/7573. 100 Oxley (CRO) and Wakely (CRO), minutes between 6 and 10 January 1961, TNA, DO161/137. Oxley referred in his minute only to the old three Commonwealth members. However, until 1961 South Africa had been part of the Commonwealth deriving from one of the old Dominions. In March 1961, South Africa held a referendum which resulted in the South African withdrawal from the Commonwealth. 101 Wakely (CRO), minute, 10 January 1961, TNA, DO161/137. 99

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it was and, as a result, the aim of the British Commonwealth Office was to achieve agreement on a set of amendments before the Conference began.

Troubleshooting Articles By the end of January 1961, the CRO had received replies from all posts except Karachi.102 In essence, most Commonwealth countries wanted the Vienna Convention to find application in Commonwealth relations. As had been assumed, Canada, Australia, New Zealand, India and Nigeria gave positive indications. The same response was anticipated from Ghana which had given only non-committal remark but was expected to go along with the majority. In contrast, Ceylon, Malaya and South Africa gave no indication of their preferences. The latter in particular was not prepared or able to formulate its own view before the Conference started.103 There was also a little confusion, mainly between the Canadians and the CRO, over whether there would be preparatory talks in London before the Vienna Conference. Counsellor H. E. Davies of Earnscliffe, the home of British high commissioners to Canada, understood that the British would invite the Commonwealth delegates for preparatory talks to concert their views and elaborate a list of amendments. However, this was wrong and, as George Cunningham of the CRO later claimed, had been never planned. Thus, the main preparatory work was done via telegram and led to a set of pending amendments to the draft Convention about whose introduction and handling was not actually discussed until the Commonwealth group met during the Conference.104 Once it had been generally agreed that the Convention should apply between Commonwealth members (subject to necessary changes), HMG identified the precise and exhaustive modifications that would be necessary to make the text acceptable. A general problem was that the Convention did not limit itself to diplomatic immunities and privileges. While questions of diplomatic privileges and immunities were not too problematic for the

Karachi was the capital city of Pakistan between 1947 and 1959. The high commissioner in Pretoria (South Africa) attributed their tardy response not only to the poor staffing and working conditions but also to their uncertainty of membership in the Commonwealth. Hence, on 2 March 1961 (on the day the Conference officially started) the high commissioner in Pretoria reported that Foreign Affairs Minister Louw will not formulate a view on this matter until he had reached London but would do so after consultation with the Chief of the South African delegation at Vienna, C. H. Taljaard. 104 Cunningham (CRO), minute, 22 February 1961, TNA, DO161/137. 102 103

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CRO, there were apparent problems in the application of terminology and standardized practices. It was at this point at which the British had to balance the advantage of standardizing diplomatic practice against the desirability of not weakening arrangements that reflected and gave special intimacy and flexibility to traditional relations between Commonwealth members. HMG was aware that not all of their amendments would be welcomed by non-Commonwealth countries and, consequently, had to try to promote their own amendments while persuading other Commonwealth members of the genuine value of such changes.

Minor changes and terminological differences Generally speaking, many of the changes discussed within the CRO and between the CRO and the FO were of either a minor or terminological nature. From a Commonwealth perspective, not all of the functions of a mission listed in draft Article 3 were suitable for Commonwealth practices. Draft paragraph (a) used the term ‘state’ and a reference in paragraph (b) referred to the protection of nationals. It was at least debatable whether these terms were applicable to the functions of the HCO as they neither represented states (but governments) and none were assigned to protect their nationals.105 Another contentious point was the reference to the ascertaining of conditions and developments included in paragraph (d). Although not a major issue, it was questionable whether such a function should be attributed to the friendly affairs between the members of the family of Commonwealth countries.106 Practice also differed in respect of other formalities mentioned in draft Articles 4 (agrément) and 12 (start of functions of heads of mission). Formal agrément was not required in Commonwealth practice as between the Queen’s realms and a provision that required accreditation of the head of mission in the name of the head of state was entirely objectionable.107 The CRO explained that high commissioners of the Queen’s realms are Ibid. It could be deduced that despite the later reference to international law, this paragraph carried an implicit reference to international spying with, of course, a rather negative connotation which should not have been a conceivable problem between Commonwealth members. 107 Formal agrément was not required for most Commonwealth countries except in cases of Republics within the Commonwealth and the Federation of Malaya. Miss M. L. Dalgleish (CRO) minute, 21 February 1961, TNA, DO161/137. For more details on the agrément between Commonwealth members, see Lloyd (2007), p.  111 and pp. 196–7. 105

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not accredited but appointed and pointed out that the term ‘appointed’ itself should be inserted rather than accredited.108 Although diplomatic immunities was not a particularly contentious issue, draft Articles  27 (inviolability of a diplomatic agent), 28 (private residence of a diplomatic agent) and 30 (waiver of immunity) caused some discussion since legislation would probably become necessary if the drafts remained unaltered. In draft Article 27 the extent of inviolability of a diplomatic agent was greater than called for in British law. In the 1952 Act, it was not specifically provided that the person of high commissioners or other staff enjoyed inviolability. A similar problem was expected to arise with draft Article 28, as under the 1952 Act the residences of members of the HCO were not inviolable. In principle, this was not a point of rejection for the CRO but legislation would be necessary in the aftermath. Oxley saw further problems with draft Article 30 which called for waiver of immunity in relation to a suit against a member of the mission. However, this would not be permissible under the 1952 Act and he suggested accepting the Article as it stood and adapting domestic legislation to make the provision applicable in respect of Commonwealth missions. As mentioned above, terminology was another problem which caused some difficulty to the CRO officials who tried either to broaden the Conventional text or to make it more specific by adding Commonwealth terms. Draft Articles 12 and 15 are examples of these approaches. It was general diplomatic practice for foreign ministries to be the channel of communication between states. However, Commonwealth relations were more familiar and were treated as more like family affairs. Therefore, communication was not channelled between the British FO and the HCOs but via the CRO. However, draft Article 12 expressly referred to the Ministry for Foreign Affairs and, hence, it seemed appropriate to the British slightly to broaden the wording to ‘the appropriate Ministry’ to accommodate and protect Commonwealth practices. Furthermore, another terminological problem was identified. It was common for high commissioners of the Queen’s realms to carry a usually rather informal letter of instruction, in contrast to the letter of commission which was exchanged by Commonwealth states of who the Queen was not the head of state. A similar problem emerged within draft Article 16 (final 18) concerning the The CRO preferred an amendment saying that ‘The sending state must make certain that the receiving state agrees to the appointment of the person proposed to be appointed as head of mission to that state’. Oxley (CRO) to Lush (FO), 10 January 1961, TNA, FO372/7573.

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reception of heads of mission. The CRO reminded that Commonwealth practice differed and that there was no formal presentation of letters of credentials between Commonwealth members which were the Queen’s realms and that the procedure of reception was not the same for high commissioners as for ambassadors.109 However, generally speaking, the CRO intended to avoid any disturbances and sought to introduce only occasionally terminological changes. Although the substance behind the words was similar, some terminological changes were inevitable such as a reference to high commissioners (and deputy high commissioners) and their appropriate rank which needed to be introduced if the Convention were to be applicable to the Commonwealth.110

Important questions of principle However, these terminological changes were mainly overshadowed by other more important issues which concerned 8 out of 45 draft Articles as well as the form of the final Convention.111 Most of the doubts provoked by these Articles touched on questions of principle. First of all, the CRO stressed the fact that high commissioners are not accredited like normal diplomats but rather appointed. Therefore, the use of the term accreditation in draft Article 5, seen from a Commonwealth perspective, was wrong and the addition of the words ‘or appointed’ seemed necessary for the exchanges of high commissioners between the Queen’s realms. Another difficulty arose with the provision regarding the employment of foreigners within the diplomatic mission (draft Article 7). Given the closeness of relations between Commonwealth members it was not unusual for an HCO to employ officials who had Oxley (CRO) to Lush (FO), letter, 10 January 1961, amendments required for application in respect of Commonwealth countries, TNA, FO372/7573. 110 Draft Article 17 (chargé d’affaires ad interim) was intended to read: ‘If the post of head of mission is vacant [. . .] the affairs of the mission should be conducted by a charge d’affaires ad interim’ and/or deputy high commissioners’. In relation to draft Article 13 (heads of mission), paragraph 1(a) should read ‘[. . .] and high commissioners exchanged between Commonwealth countries after the word state’. Oxley (CRO) to Lush (FO), letter, 10 January 1961, TNA, FO372/7573. 111 These were: draft Articles 5 (multiple appointment), 7 (appointment of nationals of the receiving state), 8 (persona non grata provision), 9 (notification of arrival and departure), 10 (size of mission), 11 (offices away from the seat), 40 (conduct of mission and diplomatic agents towards the receiving state) and 45 (settlement of disputes). 109

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the nationality of the receiving country. Thus in the late 1950s, due to British dual nationality laws, there were a fair number of high commission members in London with two nationalities. However, it was not practice to ask for consent when the HCO wished to employ a citizen of the receiving country. Therefore, in its present form the CRO rejected the Article and indeed sought the inclusion of a passage calling that this Article shall not be applicable in respect of staff of Commonwealth High Commissioners. The content of draft Articles 8‒11 seemed of little use for Common­ wealth relations and, in fact, could cause considerable difficulties in future practices. For example, although the CRO did not strive for amendment, the persona non grata clause (draft Article 8)  seemed difficult to apply within the Commonwealth. While the idea of the expulsion of a member of the High Commission did not cause much joy within the CRO, paragraph 2 seemed to be overly complicated to legally apply. Furthermore, the duty of notification of arrival and departure (draft Article 9), the limitations on the size of the mission and the exclusive conduct of relations through the Ministry for Foreign Affairs (draft Articles 10 and 40), as well as the establishment of outposts, all were considered ‘unnecessarily and undesirably restrictive’ for the application in Commonwealth terms.112 Of further concern was the wording of draft Article 40 which did not take into consideration the existence of the CRO.113 It was less the terminological flaw than the impending of intra-Commonwealth relations that would have caused concerns. In the years until 1961, all business had been conducted via the CRO and not the FO. But as the Article did not reflect this current Commonwealth practice, D. L. Cole of the CRO had a suspicion that certain Commonwealth members were keen to break with the tradition of conducting business via the Commonwealth Office. With his comment he was referring to the South Africans which already had intended to conduct business directly via the FO instead via the CRO. Cole (CRO) to Wakely (CRO), minute, 2 January 1961, TNA, DO161/137. Also the CRO was against the application of draft Article 38, paragraph (final Article 39, 3 death of a diplomatic agent) and intended to exclude Commonwealth practices that the receiving state should allow the withdrawal of the movable property and do not levy inheritance duties but on immovable property situated in the receiving country. 113 ‘Unless otherwise agreed, all official business with the receiving state [. . .] shall be conducted through the Ministry of Foreign Affairs’. 112

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Another important point of principle was the British reluctance to take any Commonwealth dispute to the ICJ, as generally suggested in draft Article  45.114 The CRO considered it unsuited to the friendly and familiar relations of the Commonwealth to take one another to the ICJ. Therefore, the CRO sought a reservation to exclude its application to Commonwealth relations. However, it was considered unthinkable that a point of diplomatic practice between two Commonwealth countries would ever be disputed before the ICJ as, not least, most Commonwealth members in their acceptance of the Optional Clause of the Statute of the Court limited the ICJ’s jurisdiction to matters involving only non-Commonwealth countries.115 A final but important issue was a principled one, namely the form of the Convention. The CRO expected the Convention to be between governments and opposed strenuously the ‘heads of state’ form and also disfavoured the ‘state’ form. Oxley of the CRO interpreted the constant use of the word ‘state’ within the Articles to mean simply the country and its government which is why no negative implications for Commonwealth relations were expected. Although possible, the argument that ‘state’ may refer to the Queen who could not contract between herself seemed weak. In a later observation in the draft brief for the UK delegation, the CRO emphasized that it did not want to sign the Vienna Convention if there were doubts about the applicability to Commonwealth practices and relations. The FO understood the motive and agreed to do its best at Vienna. However, it was likely that the majority of states would favour the inter-state form and the intergovernmental form was not considered appropriate for international law making. Furthermore, the Geneva Law of the Sea treaties, to which the Commonwealth governments were parties, had set a recent precedent for using the inter-state form. As at Geneva, any minister signing the Convention would do so on behalf of an international actor and not on behalf of the Queen as their head of state. Therefore, although the CRO had stressed the point on several occasions there was little hope of successful amendment and the strong law of the sea precedent made it difficult for the CRO to persist in this matter. Draft Article 45: ‘Any dispute between States concerning the interpretation [. . .] of this Convention that cannot be settled through diplomatic channels shall be referred to conciliation or arbitration or, failing that, shall, at the request of either of the parties be submitted to the International Court of Justice’. 115 Pakistan did not limit the jurisdiction of the International Court of Justice. 114

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Interpretation of the more favourable treatment clause Next to these selective amendments, the CRO was eager to find a way to rescue and protect the distinctive practice of diplomacy within the Commonwealth. A possible preamble and draft Article 44 were central to this idea. Although at the beginning of 1961 a preamble had not yet been drafted, it was clear that the majority of states would be inclined to have one included. However, as most Commonwealth members wanted the Convention to apply to their diplomatic relations as well, it was not possible for the CRO to seek the inclusion of a reservation within the preamble. Therefore, the CRO was initially inclined to put a reference to Commonwealth practices within the preamble so as to make clear the intention of establishing ‘the minimum [rules] of good behaviour’ and states should not cease to accord each other more favourable treatment if this was current practice.116 Another neat solution which would achieve the desired effect was an interpretation of draft Article 44 to cover Commonwealth relations by provision 2(b). The redrafting of draft Article 44, however, seemed somehow ambiguous to the CRO. Cole of the CRO suspected there was very little discrimination in practice and the qualifications in paragraph 2(a) and (b) seemed to reduce its effect. He feared that the underlying principle of non-discrimination could lead to the loss of the right to discriminate in favour of the Commonwealth diplomacy and therefore it was of great importance to express clearly the British interpretation of the Article.117

Conclusion It was the FO and more concrete the legal adviser branch that took care of the coordination of Britain’s approach to the ILC draft Articles. It pursued two different approaches in its commentaries to the ILC sets of draft Articles. Its commentary on the 1957 draft Articles reflected mostly UK diplomatic practices, and only on the classification of heads of state the FO suggested a regulation based on bilateral agreements. This approach was chosen because it was not yet clear as of which form of codification the final drafts would be recommended to the UNGA, and because there was little time between the discussions in the 1957 UNGA session and the deadline for submission of the commentary in late spring 1958. 116

Cunningham (CRO), minute, 22 February, 1961, TNA, DO161/137. Cole (CRO) to Wakely (CRO), minute, 2 January 1961, TNA, DO161/137.

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However, Britain’s approach on the final set of draft Articles adopted by the ILC in 1958 session was different. Confronted with the situation that the drafts were recommended to be turned into an international convention, the FO adapted to the new circumstances. As a result, the FO as the lead Department sought, in its commentary, to weave in the views and needs of different Whitehall Departments as in a tapestry. Key to the United Kingdom’s commentary was a balancing process between Britain’s interest as a sending as well as a receiving state. This was, however, a quite difficult process as on a number of Articles domestic and foreign interests differed considerably. The LCO, the Home Office and the Revenue Departments were the first Departments approached. Following this, however, all other interested Departments were invited, too, via a circular notice to comment on the ILC draft Articles. But balancing the departmental views according to the tight time limits, the FO’s own interests and understanding of the law, as well as what it deemed achievable at Vienna was often a stressful matter. When negotiating with other Whitehall Departments, the FO had to have in mind what was diplomatically feasible and domestically justifiable. Generally speaking, the rest of Whitehall was very critical about any draft provision which would involve subsequent legislation and was definitely opposed to any extension of diplomatic privileges and immunities. Consequentially, the FO crashed with the Home Office over its interpretation of Article 39 (diplomats in transit) and with the Board of Inland Revenues and Excise and Customs over Articles 32 (personal tax exemptions), 36 (personal diplomatic privileges and immunities) and 38 (death duties). In latter case, only a ministerial-level decision could resolve the deadlock for the moment. In regard of the GPO comments, both sides, the FO and the GPO, had a good case and the FO had to try to reconcile what the GPO wanted with what the FO thought practical and in keeping with Britain’s international needs. Similarly to the case with the Treasury, it was a matter of balancing internal and external interests. The CRO played a particular role in the preparation for the negotiations at the Vienna Conference. It engaged very late in the preparations of the Vienna Conference because from the discussions in the ILC it was not clear if a reference to Commonwealth practices would be necessary. But as the suggestion in Britain’ commentary on the 1957 provisional set of drafts to avoid the categorization of heads of mission in the draft Articles was ignored, and once the ILC decided to recommend codification by means of a legally binding convention, the CRO had to decide whether or not that the Vienna Convention should be applicable to Commonwealth relations. Although Britain tended to leave Commonwealth aspects unmentioned,

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other Commonwealth members did not follow suit. It was implicit in the comments of Australia and Pakistan on the 1957 ILC drafts that the Vienna Convention should be applicable to Commonwealth relations and when other Commonwealth members confirmed this impression, the CRO started to prepare the necessary amendments and lobbying for a general Commonwealth position. The CRO pursued two tactics to adapt the draft Convention towards Commonwealth needs. First, two general alterations (Article 44 and to a possible preamble) were to pave the ground for approval of the more favourable Commonwealth practices. Particularly, the amendment to draft Article 44 was the key. It should ensure the possibility to hold up these diplomatic practices which gave special intimacy and flexibility to diplomatic relations within the Commonwealth. It should be made explicit that by custom or agreement states could extend to one another more favourable treatment than stipulated in the Convention. Secondly, it hoped any preamble might include a reference on similar lines to ‘set the right note’ from the beginning so far as the effect on Commonwealth relations was concerned. The rest of the amendments were selective points on matters of terminology or Commonwealth practice. These were important issues, but the CRO sought to avoid any internal discussion and hoped that the troubleshooting draft Articles on the appointment of nationals, the persona non grata provision and the limitation of the size of mission and offices away from the seat would never be applied between Commonwealth members. Thus, high commissioners were prompted to encourage host Governments to believe that the CRO considered those draft Articles generally acceptable with only some minor need for amendments.

4

The Preliminaries of the 1961 Vienna Conference

Convened by the United Nations General Assembly (UNGA) resolution 1450 (XIV) of 1959, the Vienna Conference was held from 2 March to 18 April 1961, in the historically significant Neue Hofburg Palace in Vienna. This was the first time a substantial and law-making conference held under the auspices of the United Nations (UN) was not convened in either New York or Geneva. Yet, Vienna was a logical venue for several reasons. As the legal counsel of the UN stressed in his opening speech, the idea to convene the Conference in Vienna emerged out of a desire for historical continuity. In 1815, the first steps for the codification of diplomatic law were taken at the Congress of Vienna. Since then the Final Act had been deposited in Austria and, in the spirit of continuity, all relevant and official documents could be gathered together at Vienna. Apart from this traditional aspect, Austria’s political status was particularly well suited for the successful celebration of such a fundamental event in the history of codification and development of international law.1 Bound since 1955 to permanent neutrality, Austria was equally acceptable to both East and West, and, with more than adequate facilities, Vienna represented a suitable venue for the 320 expected delegates. Furthermore, the Austrian government had spotted the chance to present the country in a new and independent light, lobbying for the right to host from 1958 when a codification conference first became a possibility.2 In November 1959 Austria repeated her invitation to host the Conference and, 1

2

On 26 October 1955, Austria incorporated the ‘Constitutional Law on the Permanent Neutrality of the Republic of Austria’ in its constitution, binding the country internationally to ‘maintain permanent neutrality’. However, legally speaking a state can only be neutral during wartime. Thus, it would therefore be more accurate to speak about Austria as a neutralized state. See K. Zemanek, ‘Neutral Austria in the United Nations’ (1961) 15, International Organization, pp. 408–10. As part of the deal, the Austrian government offered to assume all additional costs that would exceed the expenses resulting out of a comparable conference in New York.

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once the UNGA decided to follow the recommendation of the International Law Commission (ILC) to pursue codification, Vienna was proclaimed the venue of the UN Conference on Diplomatic Intercourse and Immunities (UNCDII).

Opening of the Conference and discussion on participation For the opening of the Conference and the organization of work and conference organs, delegations worked in Plenary during the first two Conference days. Although the scheduling was tight, on these first two Conference days the only events were afternoon plenaries which left ample time for informal meetings and ‘corridor diplomacy’. The first Plenary meeting involved the opening of the Conference by the UN legal counsel, Constantin Stavropoulos, as acting president, followed by a speech by the Federal President of the Republic of Austria.3 On Thursday, 2 March 1961, the 81 flags of the participating states were fluttering in front of the Neue Hofburg in Vienna.4 What many delegations, other than the German and Swiss, would not have noticed is that initially 3

4

For the conference agenda, see United Nations Secretariat, Codification Division, Office of Legal Affairs, United Nations Conference on Diplomatic Intercourse and Immunities: Official Records, Volume I: Summary Records of Plenary Meetings and of Meetings of the Committee of the Whole, Vienna, 2 March–14 April 1961, A.CONF.20/14, Out of Print (Geneva, 1962) (VCDR official records), p. xxii. The General-Secretary of the United Nations invited 108 states. See Swiss Bundesblatt 597, p.  5. The Vienna Conference on diplomatic intercourse and immunities was attended by 79 out of 104 UN Member States. They were Albania, Argentina, Australia, Austria, Belgium, Brazil, Burma, Byelorussia, Cambodia, Canada, Central African Republic, Chad, China, Chile, Colombia, Congo (Leopoldville), Cuba, Czechoslovakia, Denmark, Dominican Republic, Ecuador, El Salvador, Ethiopia, Finland, France, Ghana, Greece, Guatemala, Haiti, the Holy See, Honduras, Hungary, India, Indonesia, Iran, Iraq, Ireland, Israel, Italy, Japan, Lebanon, Libya, Liechtenstein, Luxembourg, Madagascar, Malaysia (Federation of Malaya), Mali, Mexico, Morocco, the Netherlands, Nigeria, Norway, Pakistan, Panama, Paraguay, Peru, the Philippines, Poland, Portugal, Republic of Korea, Republic of Vietnam, Romania, Saudi Arabia, Senegal, South Africa (Union of South Africa), Spain, Sri Lanka (Ceylon), Sweden, Syria, Thailand, Tunisia, Turkey, Ukraine, the USSR, the UAR, the United Kingdom, the United States, Uruguay, Venezuela and Yugoslavia. The Federal Republic of Germany and Switzerland were invited as members of a specialized agency as both countries had not yet joined the UN. Observer status had following specialized agencies and international organizations: International Labour Organization (ILO), Food and Agriculture Organization (FAO), United Nations Educational, Scientific and Cultural Organization (UNESCO), the League of Arab States, the Asian-African Legal Consultative Committee and the International Atomic Energy Agency (IAEA).

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79 flags, those of the Member States of the UN only, were hoisted. The German head of delegation, Werner Dankwort, notified the Conference Secretariat, and all national flags were hoisted in time for the beginning of the Conference. At 3 o’clock in the afternoon, around 285 delegates came together filling the ranks of the immense congress hall to celebrate the start of the Vienna Conference. Stavropoulos welcomed the assembled delegations on behalf of the UN’s Secretary-General Dag Hammarskjöld. Having in mind the technical, it est, legal character of diplomatic privileges and immunities, and because Stavropoulos had been in charge of the entire preparation and organization of the Conference, as well as previous ones such as the UN Law of the Sea II conference in 1960 (UNCLOS II), it came as no surprise that Hammarskjöld neither opened, nor personally assisted, the Conference. Generally speaking, the absence of political ‘heavy-weights’ had already been anticipated by the Austrian organizers, explaining why they calculated for a relatively low level of security and safety measures. After Stavropoulos, the President of the Federal Republic of Austria, Dr Schärf, addressed the delegations. While Stavropoulos recalled past codification projects and the recent preparations (mostly those of the ILC, but also regional ones such as the Afro-Asian Legal Committee which had also prepared a draft Convention), the President of Austria stressed that the Vienna Règlement of 1815 was a first step towards more ‘democracy between states’.5 In this context he gave his fullest support for the principles of the UN for providing peace and security and said that the Convention on diplomatic intercourse and immunities would supply a common statute for the diplomatic corps around the capitals of the world, despite divergent national interests. Directly after the Austrian President had left the conference hall, the first political controversy arose over the question of restricted participation in the Conference. While twenty-first-century UN conferences follow the so-called ‘all state’ or ‘any state’ formula (emulating the one used in multilateral treaties which aim at universal participation and ratification), the situation during the Cold War was different. During the early years of the UN, the criterion for invitation to UN conferences was restricted by the  ‘Vienna formula’ which permitted participation in an international law-making treaty only to Member States of the UN, its specialized agencies or parties to the Statute of the International Court of Justice. Officially, the formula was applied to avoid discussions over whether certain entities were to be recognized as states and could become party 5

What he probably meant was that he saw in the Vienna Règlement a first step towards ‘legal equality of states’.

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to such conventions. In effect, this action served to exclude communist regimes of divided countries (such as the German Democratic Republic (the GDR), North Vietnam or North Korea and countries of dubious independence such as the Mongolian People’s Republic). Conversely, the formula served to include Western-friendly states, such as the FRG, the Holy See, Kuwait, Lichtenstein, Monaco, San Marino, the Republic of Korea, the Republic of Vietnam and Switzerland.6 The communist bloc was aware of this deliberate exclusion of their potential allies and they used every opportunity to protest formally against this restriction on participation. The option to apply restricted participation to the Vienna Conference was debated during the 14th Session of the UNGA though a conclusive decision was not reached. Therefore, at the Vienna Conference, Grigorii Tunkin, head of the Soviet delegation at Vienna, raised a point of order and protested about the absence of invitations to the People’s Republic of China (PRC), the GDR, North Vietnam, North Korea and the Mongolian People’s Republic. He noted that the Conference could only accomplish its mission of the global codification of international law if all states were invited for participation. This discrimination, he felt, indicated the desire of the Western powers to perpetuate international tensions. This type of complaint was not new and must have been expected by most of the delegations involved. The Federal Republic of Germany’s (FRG) delegation anticipated this complaint, and Hermann Meyer-Lindenberg, legal counsellor of the of the FRG’s Foreign Office, pointed out that the discussion was very similar to the discussions at the second UN conference on the Law of the Sea in 1960. Besides criticizing the Vienna formula and the non-participation of many communist states, Tunkin also engaged in the general debate on Chinese representation, criticizing the presence of the representatives of the Taiwanese Chinese Nationalist Government whom he called the ‘Kuomintang clique’, whose representatives, according to Tunkin, had no right to be present.7 6

7

In Sabel (2006), p. 52 the Vienna formula is called ‘1949 Vienna’ formula. This might be an indication that the formula was first applied in 1949. However, Sabel does not indicate its origin. Some more information on the formula’s origin can be found in Contemporary Practice of the United States Relating to International Law in AJIL, vol. 58, No. 2 (April 1964), pp. 454–87. In the mentioned form, the Vienna formula has been used in at least the Vienna Convention on Diplomatic Relations (1961) and in the Vienna Convention on Consular Relations (1963). The Vienna formula is reiterated in Article 81 of the Vienna Convention on the Law of Treaties and stands in contrast to the ‘all state formula’ which is also known as the ‘Moscow formula’. British delegation, Vienna to Foreign Office, telegram, 3 March 1961, TNA, TP30015/36, FO372/7574.

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The Soviet intervention was supported by the delegates of Poland, Czechoslovakia, Cuba, Romania, the United Arab Republic (UAR), Ukraine, Albania and Indonesia.8 In response, Freeman Matthews, head of the US delegation, pointed to current UN practice, arguing that according to Resolution 1450 (XIV) adopted by the General Assembly of the UN on 7 December 1959, participation was to be restricted to members of the UN, its Specialized Agencies and the International Court of Justice. He claimed it was not within the competence of the Conference to invite further countries. The US delegate was supported by the delegates of the FRG, the Philippines, the Republic of Korea and Ecuador.9 Meanwhile, the head of the non-aligned Indian delegation steered a middle course, expressing concern about the scope of the invitations.10 Although he admitted that the General Assembly resolution 1450 had determined participation, his government believed that a representative of the Chinese People’s Republic would be the only legitimate representative of China.11 This Indian intervention is particularly interesting as there was an agreed policy among Commonwealth delegations to avoid discussion on participation in the Conference, including the Chinese question. However, the Indian delegate skilfully avoided violating this agreed policy on the PRC’s participation, stating clearly India’s national point of view on the general discussion of the Chinese question. Dankwort spoke about the non-invitation of the GDR. He denied her status as a sovereign state and referred to her as the ‘Soviet-occupied zone’ of Germany claiming that the FRG was the only state that was democratically legitimized to act internationally on behalf of the German people. In this way, Dankwort not only responded to the Soviet discourse but also ‘Report on the International Conference on Diplomatic Intercourse and Immunities held at Vienna, March 2 to April 18, 1961’, TNA, TP30015/85, FO372/7578 (Vallat report). 9 Ibid. 10 The concept of non-aligned States emerged during the 1950s and received strong impulses from the Indian Prime Minister, Jawaharlal Nehru, together with Tito of Yugoslavia and Nasser of Egypt. The non-aligned states celebrated their first official conference in Bandung in 1961 in which they explicitly expressed their desire of not being involved in the ideological conflict of the Cold War that was going on between the East and West. 11 The Republic of China (ROC) was a founding member of the UN in 1945. However, the 26th General Assembly of the UN endorsed in 1971 Resolution 2758 which restored the lawful rights of the PRC to hold the seat on the Security Council previously held by the ROC. Since then, most UN members have switched their diplomatic allegiance from Taipei to Beijing and finally even the United States severed her diplomatic ties with the ROC in 1979. 8

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underlined the official foreign policy of the FRG since 1955, the so-called Hallstein Doctrine.12 Concluding, it might be said that the Soviet protests had been expected to be much longer and harsher, not least because of Soviet objections to the UN Secretary-General’s West-leaning policies in the Congo.13 Instead, speeches on both sides were routine interventions for the record rather than vigorously delivered statements of principle or ideology.14 This resulted in the discourse concerning representation appearing mundane, provoking a Chilean delegate to judge the debate as having the character of a ‘Byzantine liturgy’.15 Further weight was given to this impression as the Soviets raised the point at this early stage of the Conference on the express request of the Conference Secretariat. The designated president of the Conference was explicit that neither he nor his country should be put in the position to take any position on the ‘delicate decision’ of conference participation. As a result, the debate was tantamount to a standard procedure which caught no one but the press by surprise who inflated the debate and, unsurprisingly, made a story out of it. Nevertheless, in comparison with similar political statements, it might be noted that the debate exhibited one new feature. In contrast to similar discussions during the Geneva conferences on the Law of the Sea (1958 and 1960), for the first time states not directly affected by the debate, that is, states of the non-aligned movement such as India, the UAR and the Philippines, intervened in the debate, showing their displeasure over such an unproductive and time-consuming discussion.16

Organization of the Conference Today it is common practice for a treaty-making conference to appoint, at minimum, a Credentials Committee, a Drafting Committee, a General or Steering Committee and several Main Committees. In the main The Hallstein Doctrine was a crucial point in the foreign policy of the FRG between 1955 and 1969. It was founded on the idea that the FRG had the exclusive right to represent the entire German nation, including the people living in the GDR and the Soviet occupation zone in East Berlin. 13 Christopher Lush (British delegation, Vienna) to G. V. Hart (assistant legal adviser, HO), 8 March 1961, TNA, FO372/7575. 14 ‘Report of Canadian delegation to the UN conference on diplomatic intercourse and immunities, Vienna, 2 March to 18 April 1961’, NAC, RG25, vol. 3477, file 9–1961/1 (Canadian delegation report). 15 Meyer-Lindenberg report. 16 The Philippines, Korean and Ecuadorean delegates spoke in general support of the Western line. The Chinese question was also raised by Cuba, Indonesia and the UAR. Meyer-Lindenberg report. 12

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committees, normally identified by number, delegates come together to formulate the content of draft Articles or resolutions on the particular topics falling within their committee’s remit. The contemporary creation of various main committees is the result of the increasing number of delegations and the growth in personnel of each delegation. In early UN law-making conferences there had been only one main committee, the Committee of the Whole, in which all delegations were gathered and whose work was confirmed only by the Plenary. So it was at Vienna in 1961: the main work was entrusted to the Committee of the Whole17 which, although effectively having the same composition as that of the Plenary, nevertheless had to have its work confirmed separately by the Plenary.18 Plenary meetings were held for the opening, for the organization and for the conclusion of the Conference, as well as for the discussion and final voting on the draft Articles negotiated in the Committee of the Whole, after preparation by the Drafting Committee.19 At Vienna there were altogether 12 Plenary meetings while the Committee of the Whole met 41 times. The Drafting Committee, although only formally established after the first two Conference weeks had passed, worked as a ‘middleman’ between those two Committees, taking over the pre-formulated drafts (or sometimes only the agreed principles) from discussions in the Committee of the Whole, and transferring the revised texts to the Plenary as basis for further discussion or for a final vote.20 Although the Committee of the Whole had, according to the rules of procedure, the possibility to create subcommittees, it resigned largely to this practice. The only subcommittee was that on the ad hoc diplomacy, established at the 23rd Committee of the Whole meeting. 18 The main difference between these two conference organs is to be found in the presidency and voting procedure. Presiding officer of the Plenary was the president of the conference (i.e. the Austrian Alfred Verdross) and to conclude a vote in Plenary, a two-thirds majority was needed. 19 Today, decision-making at conferences is normally reached by consensus (see UN Model Rules, rule 51 Consensus) rather than by voting. Consensus working procedures evolved during the Law of the Sea conferences which worked with new rules of procedure. However, at the 1961 Vienna Conference a classic voting procedure was still at use by which the Committee of the Whole as well as the Plenary were instructed to vote amendments and proposal as well as, eventually, on every final version of the Article. Compare Sabel (2006), p. 335 and D. H. Anderson, ‘Law-Making Process in the UN System  – Some Impressions’ (1998), Max Planck United Nations Yearbook, pp. 23–50, p. 48. 20 United Nations Secretariat, Codification Division, Office of Legal Affairs, United Nations Conference on Diplomatic Intercourse and Immunities: Official Records, Volume II: Annexes, Final Act, Vienna Convention on Diplomatic Relations, Optional Protocols, Resolutions, Vienna – 2 March–14 April 1961, A/CONF.20/14/Add.l, Out of Print (New York, 1962), (VCDR official records II), pp. iii‒ix. 17

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This form of committee composition and working procedure was nothing unusual for diplomatic conferences of the 1950s. Indeed, the Vienna Conference of 1961 resembled its famous predecessors, the Geneva conferences on the Law of the Sea, both in structure and personnel.21 Delegations at Vienna were generally headed by experienced ambassadors or legal experts. Other than these familiar faces, most delegations were staffed with international lawyers or members of the legal advisery branch of their foreign ministries. The Soviet delegation, for example, was headed by Tunkin and the British delegation by Francis Vallat, both of whom were leading international lawyers who had extensive experience in the art of parliamentary diplomacy. As a result of recent conference experience, delegations were inclined to stick to familiar patterns of organization and procedure proposed by the Secretariat of the UN and, consequently, the Vienna Conference resembled the Law of the Sea conferences in organization as well as in the geographic distribution of conference posts.22 The election of presiding officers (president of the Conference and chairman of the Committee of the Whole) and the composition of Conference organs (General Committee, Credentials Committee and Drafting Committee) provided the focus of activity during the first days of the Conference. The presidency of the Conference was the first position to be officially allocated. As a tribute to the host country, the Austrian jurist and professor of international law, Alfred Verdross, was elected unanimously by acclamation. He had been officially nominated by the delegation of Ceylon (today Sri Lanka) which received general support from all other regional groups.23 Although his election looked like an act of formality, it was the result of hard lobbying that had taken place in the run-up to the Conference. Austria had put forward the almost 70 years old

The UNGA resolution 1105 (XI) of 21 February 1957 decided to convene the (first) UN conference on the Law of the Sea in Geneva from 24 February to 27 April 1958. Four separate conventions were adopted by the conference on 29 April 1958 and were opened for signature until 31 October 1958. Until the convention of the Vienna Conference on Diplomatic Intercourse and Immunities in March 1961, a second conference on the Law of the Sea was held in 1960 to consider the topics which had not been agreed upon at the 1958 conference. 22 The whole Conference was working on the UN group System basis which included the distribution of posts according to a regional key. This was a common procedure and could be well expected from such a conference. Ibid. 23 This will say delegations of the Eastern and Western group, the Americas and Arab countries. Inter alia, the United Kingdom, Switzerland, the Soviet Union, Uruguay, Spain and Iran. 21

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Verdross, one of its finest international jurists, and a shortlisted candidate for the office of Federal President of the Republic of Austria,24 for the presidency of the Conference in 1960. Though Austria lobbied almost all of the invited states, it was particularly important to engage the four great powers of France, Great Britain, the Soviet Union and the United States of America. However, the United States had particular reservations, being suspicious of Professor Verdross’ supposed attitude towards the PRC (then often referred to as ‘Red China’). The British, for their part, despite having minor doubts about Professor Verdross’ likely effectiveness, did not see his appointment as a matter of great concern. The then legal adviser of the British Foreign Office, Sir Gerald Fitzmaurice,25 and Vallat,26 his deputy at the time, agreed to support appointment of Alfred Verdross because of his strong juridical background and experience. Verdross had been a professor of Law at the University of Vienna, was a member of several international law organizations and since 1957 had also been member of the ILC, which had spent a long time preparing the draft Articles on diplomatic intercourse. Britain expected Verdross to avoid any political debate on representational legitimacy or credentials, and to rule any such a request during the Conference to be out of the question. Also reassured about his ‘soundness’ on such matters, and with the certainty that the presidency of the Conference was a mainly representational task, Washington eventually agreed to the Austrian candidate. Noteworthy here is the British practice of understatement. Despite having made the decision internally, the British remained outwardly uncommunicative as they had little information on other states’ positions towards Verdross’ candidacy. When asked by the Austrians for their official stand on Verdross’ candidacy, the British replied that it was its common practice not to undertake any definite commitment in advance in elections of this kind. However, Britain let the Austrians understand that it would not vote against Verdross’ candidacy, mentioning that it will be sympathetically regarded.27 In 1957 Verdross was invited to stand as a candidate for the office of Federal President of Austria, but he refused. 25 Sir Gerald Fitzmaurice was legal adviser to the FO from 1953 to 1960 when he was elected to the International Court of Justice where he sat on the bench from 1960 to 1973. 26 Francis Vallat was deputy legal adviser under Fitzmaurice between 1954 and 1960. In 1961 he became legal adviser at the British FO. Vallat was the head of the British delegation at Vienna. 27 This had been Britain’s usual practice. Normally, the United Kingdom would consult Commonwealth countries but was wary of giving definite responses to states who ask her to support their candidates. 24

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Moscow also took a prudent position on any advance commitments, finally giving the green light on 25 January 1961 that it would not object to the Austrian candidate.28 Given official Soviet approval, the Austrian ambassador to Poland, Stephan Verosta, pointed out that the rest of the Eastern bloc would follow suit. Generally speaking, it can be said that the great majority replied favourably to the Austrian lobbying. Only a few countries such as Denmark, the Netherlands or Libya had not taken any official position by the end of January 1961, still needing time to coordinate with allied countries.29 In fact, the only country that officially withheld her approval was the Republic of Indonesia. This was because Verdross had taken the Dutch side over the nationalization of Dutch companies in the Republic of Indonesia.30 However, Indonesian reluctance was accompanied by a promise not to oppose Verdross’ candidature. Eventually, during the course of the first Plenary meeting, Verdross was roundly praised for his suitability as presiding officer and for his active role in the preparation of the draft Articles, before being appointed president of the Vienna Conference.31 In his opening speech, Verdross modestly hinted that he was aware of the controversy around his person and he assumed that his nationality rather than his academic reputation had lifted him to this presidential position. Like the previous speaker, Verdross pointed out the essential preparatory work of the ILC. He also stressed the importance of codification and the role of conventional law in the development of international law. Despite the predominant role of customary law in the past, he explained, the rapid change of the international community in number and sociological composition could not be sufficiently accommodated by custom and tradition. There would be friction between states until new diplomatic practices had settled and, Verosta (Austrian Embassy, Warsaw) to Austrian Foreign Office, 22 February 1961, ASA, AT-OeStA, Karton II-pol 1961, 736 UN 6/1–14. 29 In general, it can be said that Denmark’s official procedure on such elections was similar to that of the United Kingdom and thus they basically waited until the Great powers showed their approval to Verdross’ candidacy. The Netherlands and Libya had to coordinate their position with that of the other Benelux states and that of the Arab League, respectively. 30 This was a reference to Verdross’ publication ‘Die Nationalisierung Niederländischer Unternehmen in Indonesien im Lichte des Völkerrechts’, Netherlands International Law Review, July 1959. 31 Although Rule 43 of the rules of procedure would have called for a secret ballot, the Acting President dispensed of a secrete vote as only Alfred Verdross was put forward as nominee. 28

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according to him, conventional law was, as a result, the most important source for the development of international law. After the presidential appointment, the first Conference day concluded with the adoption of the provisional draft agenda, prepared by the Secretariat. This was a routine and organizational aspect which prompted no debate.

Adoption of the rules of procedure The second Conference day started with the adoption of the provisional rules of procedure. Rules of procedure do not play a preponderant role; however, they are necessary for the orderly conduct of the Conference. Their function is to protect the rights of the individual delegations but can also be regarded as a keen tool for anyone who has a detailed knowledge of their application. It has been accepted practice and, since the 1969 Vienna Convention on the Law of Treaties, also conventional law that each international conference is independent in the adoption of its own rules of procedure. In most cases, however, the rules of procedures are derivatives of the set of standard rules of procedure applied to the sessions of the UN General Assembly and, therefore, their adoption prompts little discussion. At the UNCDII such standard rules of procedure had been prepared by the Secretariat and were put to a vote by President Verdross during the second Plenary meeting. Although more or less a formality, due to widespread satisfaction with the standard rules of procedure, Vallat suggested a minor amendment to facilitate the accommodation of an additional vice-president to the Conference.32 His amendment was the result of insights gained at a non-official meeting on the morning before the Plenary meeting. The amendment was generally welcomed and together with the provisional rules of procedure was adopted by acclamation.

The General Committee: Election of vice-presidents At international conferences, the General Committee, sometimes also referred to as Steering Committee, is one of two procedural committees (the other being the Credentials Committee) which, generally speaking, In rule 13 of the provisional rules of procedure, the composition of the General Committee was foreseen to include only 21 members. VCDR official records, p. xxiii.

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assists the presidency in the general conduct of business and ensuring the coordination of work. Normally, these delegates preside over the deliberations of the subcommittees and working parties. According to the rules of procedure of the 1961 Vienna Conference, a further function was for these delegates to propose who ought to be on the Drafting Committee. As a matter of courtesy, often one representative from the conference host country would form part of the Drafting Committee. 33 In the case of the Vienna Conference, Alfred Verdross, as president of the Conference, was part of the General Committee, as was the chairman of the Committee of the Whole (a position which would be filled by Arthur Lall of India). While these two officials automatically became part of the General Committee, it was the appointment of the vice-presidents of the Conference which involved some political wrangling. At international conferences, it is usually the case to appoint numerous vice-presidents. Their primary function consists in substituting for the president in the latter’s absence. However, the appointment of vice-presidents has also become a matter of regional representation. The vice-presidents are customarily agreed upon in private consultations prior to the formal opening of a conference, with governments tipping off the field and lobbying via their resident diplomatic missions so as to widen their candidate’s chances of office. At Vienna, the organizers of the Conference had to deal with a tight time schedule, with Stavropoulos and Vallat having to work hard to guarantee business proceeded punctually. While the official schedule provided for only one Plenary meeting in the afternoon, delegations took advantage of this gap in the official schedule to meet in regional groups, discussing aspects of the Conference. 34 On the morning of 3 March 1961, Stavropoulos held an informal meeting to discuss the composition of the General Committee and Credentials Committee as well as candidates for vice-chairmanship and rapporteur of the Committee of the Whole. Regarding the General Committee, the focus lay on the appointment

At the 1961 Vienna Conference this happened automatically as the host country was still granted the presidency of the Conference. Today, particularly when conferences are held under the auspices of the UN in a state with a UN (regional) headquarter (United States, Switzerland, Austria and Kenya), this practice has become less common. According to the Israeli delegate, Shabtai Rosenne, cited in Sabel (2006), p. 411, footnote 11. 34 Next to this meeting Vallat hold another with the Western European group and with that of the Commonwealth delegations. British delegation (Vienna), to Foreign Office, telegram, TP30015/36, FO372/7574. 33

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of the 19 vice-presidents of the Conference. 35 The vice-presidencies were important insofar as they shaped the composition of the General Committee, for which Stavropoulos assigned representation according to the UN group System basis.36 Particularly for the procedural committees (the General Committee and the Credentials Committee), Stavropoulos planned a composition corresponding to those committees of the UNGA to ensure the representational character of the General Committee. But, as was to be expected, Tunkin rejected to this idea and insisted that members should be elected by secret ballot. His ostensible aim was to persuade delegations to vote on the basis of a three-bloc system corresponding to Khrushchev’s line of argument at the 15th session of the General Assembly in 1960.37 It was obvious, however, to the British delegation at Vienna that Tunkin’s political objective was to avoid the election of the Taiwanese delegate as vice-president of the Conference. Interestingly, the other representatives at the meeting did not engage in the Soviet protest, a fact that lends further weight to the oft-cited ‘constructive, good-natured, and amicable’ Conference atmosphere38 which can be traced back even as far as preparatory talks between peer delegates. Another reason was certainly the time constraint which existed from the start of the Conference and the desire to guarantee a smooth start. Thanks to a combined effort of the French, British and US delegates, the other heads of delegation agreed fairly rapidly on a distribution of committee membership equal to that of the latest UNGA. However, the composition of the Conference committees could not be exactly the same, as not all UN members did attend the Conference which made a complete reflection of these committees impossible. Therefore, delegates fell back on a mixture of UN System representation and committee compositions of the recent UN Law of the Sea II conference of 1960, and by the time the

These delegations included: Chile, France, Japan, United Kingdom, United States and the Soviet Union. Although the composition of the General Committee was the core agenda point of this meeting, also the position of rapporteur of the Committee of the Whole was discussed. 36 This means, composition of these committees should be similar to the current composition of the presiding office holder of the UNGA. 37 The Soviet premier, Nikita Khrushchev, was furious with the pro-Western bias of the Secretary-General Dag Hammarskjöld and proposed at the 15th session of the General Assembly a so-called troika solution. This collegial organ at the head of the UN Secretariat would consist of three Secretary-Generals who would come from the Eastern bloc, the Western bloc and the non-Aligned bloc. 38 Lloyd (2007) and comments on Conference atmosphere in Canadian delegation report. 35

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Conference formally opened in the afternoon, the Secretariat had already circulated a list of proposed nominees. These included: the five permanent members of the UN Security Council (France, the Republic of China, the Soviet Union, the United Kingdom and United States of America); the African-Asian countries of India, Iran, Iraq, Liberia, Nigeria and the Philippines; the Latin-American countries Argentina, Chile, Colombia and Mexico and a European group of Austria, Italy and Spain, Czechoslovakia, Romania and also Canada. The chosen form of regional representation was approved by the majority of delegations and, besides the Soviet reluctance, there seemed to be only minor discord. The Canadian delegation was displeased with its nomination as it had received instructions from Ottawa ‘not [to] seek election to this or any other office’.39 However, so as to assist in securing unanimous agreement, they agreed to be put forward.40 Eventually, even the Soviet delegation seemed in agreement with the proposed vice-presidents before the opening of the Plenary meeting. One reason for this was an agreement reached during the informal meeting which would reserve for the Polish delegation one of the posts of vice-chairman of the Committee of the Whole. A unanimous agreement was in sight. However, at the last moment the Yugoslav delegation pressed its claim to one of the Western European seats that were to be occupied by Spain and Italy. Regarding European representation, the British thought an Austrian presidency together with vice-presidencies for Italy and Spain gave too much weight to Southern Europe.41 Other delegations might have felt the same, and the Yugoslav delegation, representing a state both geographically and politically in between the Soviet Union and Mediterranean Europe, received considerable support. However, neither Spain nor Italy was prepared to step down. The Conference may have faced deadlock but for Stavropoulos’ experience and broad knowledge of conference procedures as well as his cooperation with Vallat. In a solution seemingly as simple as it was brilliant, he proposed a change of the rules of procedure increasing the number of members of the General Committee from 21 to 22. The British delegation, who agreed to the suggestion, took up the idea and pushed it to a vote. The Conference agreed unanimously to an amendment of the respective Canadian delegation report. Furthermore, Canada occupied one of the vice-presidency seats in the 15th regular session of the UNGA in 1960 and for procedural reasons could have expected to be involved in the composition of the General Committee. 41 Vallat (legal adviser, FO), minute, 20 February 1961, TNA, FO372/7574. 39

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provision in the rules of procedure (rule 13)  and the representative of Yugoslavia became the General Committee’s 22nd member.42 Despite this unusual procedure, the role of the General Committee stayed very small. During the Conference proceedings, the General Committee held only one formal meeting towards the middle of the Conference, on 16 March 1961. At this meeting, it recommended, as foreseen in the rules of procedure, the composition of the Drafting Committee.43

Election of the chairman of the Committee of the Whole At Vienna, the Committee of the Whole was the key organ entrusted with the main work of the Conference. Following the example of the Geneva conferences on the Law of the Sea, the composition of the Committee of the Whole corresponded to that of the Plenary. This meant that it comprised all delegations but had a different chair. It was Arthur Lall of India who had the honour to preside over the Committee of the Whole. Although his appointment was generally accepted without problems, it did take some time before his election became a certainty. In the run-up to the Conference a fair amount of shuffling, lobbying and jockeying went on during which different people were traded as possible candidates. Stavropoulos expected the communists to make a strong bid for the chairmanship since the presidency of the Conference had been pre-empted by Austria, a state that was friendly to the West. Indeed, with Manfred Lachs, a Polish diplomat and international jurist of high repute, the communists had a promising candidate for the post. Britain concentrated on personal suitability rather than on political aspects, also considering Lachs a suitable candidate. Fitzmaurice, at that time still the (chief) legal adviser to the British Foreign Office, was disposed to favour Lachs, seeing no problem in giving a presidential office to a communist delegate. However, the idea of any communist holding this office encountered the ‘uncompromising opposition’ of the Americans. Her Majesty’s Government, however, rejected the notion of explicitly excluding a candidate from chairmanship for being a communist and, eventually, left it to the Americans and the UN’s legal counsel, Stavropoulos, to find a suitable candidate.44 Vallat (UK delegation, Vienna) to FO, telegram, 8 March 1961, FO372/7575. But to ensure wider representation, it decided to change rule 48 of the rules of procedure suggesting an increase in membership (12 instead of 9 members). 44 Vallat (FO) to Simpson (UK permanent Mission to UN), letter, 27 January 1961, TNA, FO372/7573. 42 43

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To counterattack the communist bid for the post, Stavropoulos wanted to find a candidate who would be generally acceptable to all sides and it seemed to him most likely that such a candidate could be found in Asia or Latin America. Stavropoulos favoured an Asian candidate but had difficulties finding one. After failing to find an individual candidate who would be generally acceptable, he turned to the Japanese authorities as a last resort. However, the Japanese did not want the chairmanship of the Committee of the Whole, putting Stavropoulos back to the beginning of his search.45 Stavropoulos turned now to the Americas in his hunt for a suitable chairman, his thoughts first inclining towards Miguel Rafael Urquía of El Salvador who, he judged, would be much better in the chair than leading a delegation. Urquía was personally very keen to get the job but was not immediately authorized by his government to put himself forward as a candidate.46 As Stavropoulos wanted to conclude this issue as soon as possible, he finally approached the Indian mission, suggesting that Lall, the Indian Ambassador at Vienna, should be nominated for the job. Politically as well as personally, this turned out to be an extremely good choice. As will be shown later, he was an able chair, competent and thoughtful in his rulings, which ref lected an extraordinary knowledge of the rules of procedure, with a good feeling for the momentum of negotiations. Lall was, moreover, highly respected in UN circles and, since India was an important Commonwealth country, Stavropoulos expected him to receive the necessary support from the United Kingdom as well as from the other members of the Commonwealth. The Indians, it became apparent, were not the only Commonwealth member which was interested in providing the chairman of the Committee of the Whole. Serenat Gunewardene from Ceylon, the former Ceylonese permanent representative at the UN in New York, had announced himself candidate for the chairmanship of the Committee of the Whole. However, Lall had already responded positively to Stavropoulos’ approach and, although the election still had to be held, the post was in effect taken. Nevertheless, Gunewardene’s highly regarded legal qualifications led Simpson (UK permanent Mission to UN) to Vallat (FO), letter, 11 January 1961, TNA, FO372/7573. 46 This was because El Salvador had just undergone a revolution and few people were interested in the Vienna Conference. Interestingly, eventually Urquía did not chair the El Salvadorian delegation nor attended the Vienna Conference. 45

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to talk of him becoming chair of the Drafting Committee instead.47 As expected, therefore, Lall was the only official nominee for the chairmanship of the Committee of the Whole and his election was little more than a formality. Immediately upon Lall’s confirmation, the Committee went on to appoint the officials for the Credentials Committee.

Appointment and report of the Credentials Committee The Credentials Committee is the other procedural committee. Generally speaking, it has to ensure that the diplomatic credentials of all representatives are in order. Delegations at treaty-making conferences have to submit their credentials to the Secretariat of the Conference. Correct credentials are issued by either the head of government of the sending state or its Minister of Foreign Affairs. The signature of one of these government officers vests the delegate with the competence to negotiate the treaty and to sign the Final Act.48 At UN conferences, the members of the Credentials Committee are normally proposed by the presiding officer. In today’s diplomatic conferences, the composition of the Credentials Committee usually reflects the setting of the Credentials Committee of the most recent UNGA meeting and therefore its composition is normally approved without a vote. At the 1961 Vienna Conference, rule number 4 of the rules of procedure called for a nine-member Credentials Committee which had to be appointed at the beginning of the Conference. Its composition was discussed and agreed together with that of the General Committee at the same informal meeting called by Stavropoulos on the morning of the second Conference day. Stavropoulos had contemplated for some time that this Credentials

Simpson (UK permanent Mission to UN) to Vallat (FO), letter, 3 February 1961, TNA, FO372/7573. Nevertheless, during the Conference Gunewardene became a key person as he also chaired the Asian-African group meetings and functioned as a link between those Commonwealth members and Britain and other European delegations. 48 Sabel (2006), pp. 58–9. Failure of the credentials being signed by any of the abovementioned officials, these documents are invalid. As a result, the delegate will not be able to speak on behalf of his/her government. Due to this entire process, conferences such as the 1961 Vienna Conference, in which credentials are checked, are per definition conferences of plenipotentiaries. 47

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Committee would have the same composition as the Credentials Committee  of the 15th session of the General Assembly in 1960.49 This idea, however, was unworkable as two of the countries involved (Costa Rica and New Zealand) had declined to attend the Vienna Conference.50 In order to avoid wrangling and time wasting, it seemed to Stavropoulos the best solution was to replace only these two missing delegations with other candidates of the same regional group. Therefore, he sought to persuade either Australia or Canada to serve in place of New Zealand with another Latin American country substituting for Costa Rica.51 Stavropoulos was successful replacing these committee members, and the aforementioned composition was agreed between a number of delegations during the informal meeting that took place on the morning of the second Conference day. This time, however, there was a ‘price’ to pay for Soviet agreement on the composition of the Credentials Committee. Tunkin was not willing to make any more concessions as a sign of good will, insisting on Poland having a vice-chairmanship of the Committee of the Whole in exchange for agreement over the procedural committees’ composition. Furthermore, he was willing to concede to a second vicechairman (possibly someone from Uruguay) and that the rapporteur might be provided by Western Europe. As a result, the Conference appointed the Credentials Committee at its second Plenary meeting consisting of Australia, El Salvador, Haiti, Mali, the Philippines, Spain, the Soviet Union, the UAR and the United States. According to the rules of procedure of the Vienna Conference, the Credentials Committee was required to decide on credentials and report ‘without delay’ to the Conference. However, at previous conferences the practice had been established of transferring the adoption of the report to nearer the end of the Conference when the question of credentials has The nine members appointed by the President of the 15th UNGA in 1960 were: Costa Rica, Haiti, Morocco, New Zealand, the Philippines, Spain, USSR, UAR and United States. United Nations Secretariat, Codification Division, Office of Legal Affairs, YBUN: 1960 (New York: United Nations, 1960), Appendix III, p. 714. See also Simpson (UK permanent Mission to UN) to Vallat (FO), letter, 16 February 1961, TNA, FO372/7573. 50 New Zealand reportedly did not attend as the benefit of attendance outweighed the costs. See Lloyd (2007), p.  199. Similar thing might be true for Costa Rica. However, New Zealand had the advantage that it could count on the British and other Commonwealth members to accommodate the specific needs of the Commonwealth, which constituted the main framework for the diplomatic relations of New Zealand to that time. 51 Simpson (UK permanent Mission to UN) to Vallat (FO), letter, 18 February 1961, TNA, FO372/7574. 49

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already lost importance.52 Using this routine, unnecessary political debates over competing credentials could not disturb a smooth start to conference organization and work. As a result, it was not unusual that the first meeting of the Credentials Committee was only held in the second to last week of the Conference, on 7 April 1961. Of the 81 delegations attending the Conference, 78 had presented full negotiating powers in original documents. Only the Foreign Ministries of Haiti, Senegal and Uruguay had sent cablegrams to confirm the credentials of their delegations. Of course, there was no fundamental doubt about the legality of any delegation invited, but discussions reverted to wellknown political issues of that time. During discussions in the Credentials Committee meeting, the Soviet Union and UAR often voted together, first against the validity of the Chinese credentials and later against a US motion referring to the UN resolutions of the General Assembly, according to which ‘no action’ should be taken on the Hungarian credentials.53 While in the former case the chairman of the Credentials Committee, John Kevin of Australia, argued that the task of the Credentials Committee was only to see if introduced credentials were in order; in the latter case chairman Kevin felt it appropriate to follow the current UN policy not to take any decisions regarding the Hungarian credentials. With this decision Kevin followed the general procedure that competing credentials were a political question on which the power to decide lay outside the competence of the Committee. Eventually, on proposal of the chairman, the Credentials Committee agreed that all credentials were in order except those of the Hungarian delegation. In practical terms, this had no consequence for the participation of the Hungarian delegation during the Vienna Conference. On the one hand, most of the conference work had already been done and, on the other hand, the Hungarian delegation was allowed to participate until a final decision would be taken.54 However, if these debates had happened towards the Sabel (2006), p. 65. The 11th UN General Assembly session endorsed the report of the Special Committee on Hungary in Res. 1133 (XI) of 14 September 1957 in which it was established that the uprising in Hungary in 1956 was spontaneous (as opposed to Soviet  allegations that it was triggered by US intervention) and that the Soviet Union had deprived the Hungarian people from political independence. As a consequence, the Credentials Committee of the UNGA decided to take no decision regarding Hungarian credentials. This was a measure of ‘collective non-recognition’ short of treating the Hungarian government as a non-entity, a policy that was practised until 1963. See B. Roth, Governmental Illegitimacy in International Law (Oxford: Oxford University Press, 2000) (Roth (2000)), p. 267. 54 In legal terms, this means that Hungary was denied de jure recognition; however, it still enjoyed a de facto recognition. Roth (2000), p. 267. 52

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beginning of the Conference, it is easy to imagine that they would have disturbed a smooth conference start.

Working procedures of the Committee of the Whole The organization of the conference work was the last agenda point for the second Conference day, on Friday 3 March 1961. President Verdross proposed to refer to the Committee of the Whole items 10 and 11 of the Conference agenda, namely the consideration of the question of diplomatic intercourse and immunities according to resolution 1450 (XIV), adopted by the General Assembly on 7 December 1959, and of the draft Articles on special missions in accordance with resolution 1504 (XV), adopted by the General Assembly on 12 December 1960. By transferring the Conference work to the Committee of the Whole, delegations formalized the last official act of the Plenary until it was to meet for the appointment of the Drafting Committee at its third meeting (not until two weeks later, on 16 March 1961).55 However, before the Committee of the Whole would proceed with the official negotiations, delegates took advantage of the weekend to meet in regional groups building up parallel structures which are essential for the preparation of the official Conference proceedings. Thus, as the official Plenary meeting ended at 4.10 p.m. on that Friday afternoon, the day’s work was not yet done for most of the delegates and particularly the Western European group had, as a result of the other informal meeting earlier that day, to agree on a suitable candidate for the post of rapporteur to the Committee of the Whole. Vallat, the British head of delegation, took the lead and invited the Western European delegations to meet after the second Plenary meeting had concluded, in order to prepare for the first Committee of the Whole meeting on Monday. On Vallat’s suggestion, the delegations agreed unanimously that the Dutch delegate, Willem Riphagen, the legal adviser to the Dutch government, should be their candidate for the post of rapporteur.56 This third Plenary meeting was called exclusively for the appointment of the Drafting Committee and rose again after 15 minutes. The Plenary started its consideration on the draft Articles (special missions and diplomatic intercourse) only in the afternoon session on 10 April 1961. 56 It was at the same meeting that Vallat was asked by the convened European delegates to act as chairman of the European group for the duration of the conference. Vallat, of course, agreed and this contributed to his becoming one of the most important key figures at the Vienna Conference. 55

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On Monday 6 March 1961, the Conference came together for the first time in the Committee of the Whole, chaired by Lall. The Committee of the Whole started its work with the election of its vice-chairmen. Rules of procedure provided for two positions, and the previously agreed nominees (Henryk Birecki of Poland and Nelson Iriniz Casas of Uruguay) were put forward and elected by acclamation. Even shorter was the procedure to appoint the rapporteur. The Swiss delegation proposed Riphagen who was also appointed by acclamation.57 After organizational issues were dealt with, the Committee started taking up the two agenda points it was entrusted with by the Plenary, those of diplomatic intercourse and immunities as well as the consideration of draft Articles on special missions/ad hoc diplomacy. Chairman Lall stuck to the order of the agenda and suggested work be tackled on an Articleby-Article basis starting with the draft on diplomatic intercourse and immunities. For him, this seemed the most effective way to work through the ILC drafts and he was joined in this opinion by the Committee. During all of its 41 meetings, the Committee of the Whole worked on the draft Articles on diplomatic intercourse and immunities. According to rule 29 of the rules of procedure, the starting point of discussions was always the ILC draft on which delegations could introduce amendments or new proposals (for instance on a title or preamble to the Convention). For more background information to the negotiation of the draft Articles, the ILC had prepared a commentary from as early as 1958, and in order to assist delegations at Vienna, the Conference Secretariat had additionally prepared an updated guide to the draft Articles in early 1961. As further guidance for the delegation’s work on the draft Articles, there was a final report of the Asian-African Legal Consultative Committee on Functions, Privileges and Immunities of Diplomatic Envoys or Agents, which this Committee had adopted in 1960 but which did not differ too much from content and volume of the ILC drafts. The Havana Convention on Diplomatic Officers (1928) served also as a point of reference to the negotiations as it was the only regional codification of diplomatic practice in the twentieth century. The Committee held 41 meetings during the period from 6 March to 5 April 1961. During only two of these meetings did the Committee deal with the work on the draft Articles on special missions/ad hoc diplomacy. At its 23rd meeting, on 21 March 1961, the Committee of the Whole 57

Appointed by acclamation will say that no secret ballot or voting on this position has taken place as the presiding officer assumed that no delegations had objections to this appointment.

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established a subcommittee to work and report on the subject of ad hoc diplomacy.58 The subcommittee started its work the next day and held other meetings on March the 22nd, 24th and the 29th. In the course of discussion in the subcommittee it was pointed out that the draft Articles on special missions mainly indicated which of the 1958 ILC draft Articles would be applicable to both permanent and special missions. 59 Therefore, delegates doubted that this approach would cover the whole field of ad hoc diplomacy. To answer this question, however, it was thought a thorough study of the subject would be necessary, and the delegates doubted there was enough time (in the subcommittee but also in the Committee of the Whole and the Plenary). The subcommittee decided that it had neither the time nor the means for a ‘proper and thorough’ study of the subject of special missions. Presenting the subcommittee’s working report at the 39th meeting of the Committee of the Whole, the Ecuadorian delegate, Neftali Ponce Miranda, stressed that although the draft Articles were an adequate basis for discussion, they were still too vague and needed more extensive study. Furthermore, unlike the ILC drafts on diplomatic intercourse, these drafts had not been yet subjected to the comments of governments, who ought to be granted this opportunity before codification commences. As a result, the delegate of the UAR, Abdullah El-Erian, reminded the Committee of the Whole that his country had put in a reservation on General Assembly resolution 1504 (XV) of 1960 because the draft Articles on special missions had not been submitted to governments for their comments.60 As there appeared to be general support for this argument, the chairman of the Committee of the Whole suggested the Drafting Committee be asked to draft a resolution reflecting the core statement of the subcommittee’s report, referring these articles back to the UNGA for further study. In the final report, it was argued that the study of these draft Articles could not be undertaken until at least the Committee of the Whole had approved essential sections of the draft on diplomatic intercourse and immunities, The Sub-Committee on Special Missions was composed of the following States: Ecuador (Neftali Ponce Miranda); Iraq (Mustafa Kamil Yasseen); Italy (Adolfo Maresca); Japan (Michitoshi Takahashi); Senegal (Boissier-Palun); the Union of Soviet Socialist Republics (A. P. Movchan); the United Kingdom (Thomas Glasse); the United States (E. Kerley) and Yugoslavia (Milan Bartos). Neftali Ponce Miranda was elected chairman of the subcommittee by acclamation at its first meeting on 22 March 1961. VCDR official records, pp. 45–6. 59 Apart from Article 1 which defines those missions as well as paragraph 2 of Article 3 which concerns their modes of termination. 60 VCDR official records, pp. 230f. 58

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as these sections had particular importance in relation to special missions. Thus, a final study and any recommendations on special missions had to await the approval of a definitive text on permanent missions by the conference itself.

Appointment of the Drafting Committee At the Vienna Conference, under rule 48 of the rules of procedure, the Conference was to appoint a Drafting Committee consisting of not more than nine members, on the proposal of the General Committee. This committee was responsible for the coordination of the instruments approved by the Committee of the Whole and their subsequent preparation into a final text to be submitted for consideration by the Plenary of the Conference. Delegates in the Drafting Committee faced a strenuous task. New draft versions often had to be ready for the next session, requiring delegates to work long hours, often until the early morning. Furthermore, the meetings in this Committee were often used for informal negotiations and delegates had to walk a thin line to avoid acting beyond their mandate. As the UAR delegate, Nafeh Zade, pointed out in one of the Plenary meetings, the Drafting Committee was not competent to change the substance of a text without the directive of one of the main committees. The directives of these organs, however, were often vague and Articles often referred to the Drafting Committee in the light of ‘foregoing decisions’ or ‘amendments and comments’.61 Subsequently, it was advantageous to occupy a position in the Drafting Committee as it could turn out to be an influential one. A similar situation was to arise over the election of the Drafting Committee as occurred with the election of the vice-presidents. The delegations at Vienna included a number of well-qualified candidates for posts in the Drafting Committee, together with other candidates whose presence on the Committee was necessary for political reasons. Stavropoulos favoured a delay in appointing the Drafting Committee at the beginning of the Conference, preferring to wait until the Conference was well under way. After a week he hoped certain members would have displayed their legal capacities and have built up their reputations as legal experts in the eyes of the convened delegates; 61

Article 5 was referred to the Drafting Committee ‘for redrafting in the light of foregoing decisions’, VCDR official records, p.  92 and the Venezuelan delegate called for ‘revision in the light of amendments and comments’ made on the many definitions contained in draft Article 1.

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this way, it could be possible to establish a Drafting Committee which was based on acknowledged competence of the individuals rather than on mere geographical representation.62 Stavropoulos was to be proved right. As an example, the appointment of Endre Ustor of Hungary, despite being highly qualified to be a member of the Drafting Committee, was initially objected to by the United States for political reasons, its delegation justifying this on grounds of the doubtful status of his credentials. But even though the United States questioned the credentials of the Hungarian delegate, it was clear that the Credentials Committee would take no decision on the Hungarian credentials according to the ‘no decision’ formula embraced by the General Assembly since 1959. After several Conference days a consensus had been found before the meeting to appoint the Credentials Committee started at the third Plenary meeting on 16 March 1961. By this time, the US delegation had no doubts over the individual’s qualifications and accepted Ustor’s incorporation into the Drafting Committee. This did not happen without additional political bargaining which resulted in the inclusion of Nationalist China (Taiwan) into the Drafting Committee. Once again the rules of procedure were amended so that the Drafting Committee could incorporate 12 rather than 9 members. This was done without further debate.63

Conclusion At contemporary conferences under the auspices of the UN, the conference  agenda is usually rather broad and, therefore, the Plenary establishes a number of Committees of the Whole to work on the different aspects of the conference subject. In contrast, and thanks to the compactness of the topic, the Vienna Conference worked on an Article-byArticle approach in only one Committee of the Whole whose decisions later needed to be confirmed by a vote in the Plenary, the only exception being the draft Articles on ad hoc diplomacy/special missions. The Committee of the Whole delegated its work to a subcommittee which came to the conclusion that the draft Articles on ad hoc diplomacy were not ‘ripe’ for codification and recommended their reference back to the UNGA. Simpson (UK permanent Mission to UN) to Vallat (FO), letter, 18 February 1961, TNA, FO372/7574. 63 The Drafting Committee included Brazil, Ceylon, China, France, Ghana, Hungary, Mexico, Switzerland, the Soviet Union, the UAR, United Kingdom and the United States. 62

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Despite the good conference atmosphere, the technicality of the subject and well-established diplomatic practice, the preliminaries of the conference raised several political issues, often related to the Cold War confrontation. The UN legal counsel, Constantin Stavropoulos, was deeply involved in the organization and concerned about the smooth start of the Conference. Although no political heavyweight on either side of the Iron Curtain attended, Cold War issues such as the Vienna formula on UN conference participation, the representation of divided states and the ‘no-action policy’ as to the credentials of the Hungarian delegation added political tension. Also, the bargaining for Conference posts gave a political drive to the first days. Thus, in a tit-for-tat-like situation the East accepted the Chinese (Taiwanese) representative in the Drafting Committee in exchange for the vice-chairmanship for a Polish delegate. Furthermore, it was no coincidence that the chairman of the Committee of the Whole was neither of the West nor of the East. The United States would not have accepted a Soviet-bloc candidate for the chairmanship, so Stavropoulos worked in a rather close relationship with the United States and Britain in order to find a suitable candidate from Latin America or some of the non-aligned states. Stavropoulos, consulting the British delegation before and during the preliminaries of the Conference, had great confidence in the opinion of the United Kingdom not least because, in comparison to the United States, it had shown less restrictive viewpoints in Cold War issues. As the next chapter will show, however, Cold War issues lost their importance during the remaining time of the Conference, and it was matters of substance that stood in the forefront during the following negotiation weeks.

5

Analysis of the 1961 Vienna Conference Negotiations

In the run-up to the United Nations Conference on Diplomatic Intercourse and Immunities (UNCDII), the media showed little interest and covered the subject only sporadically. The ‘penny press’ twisted intentions and mixed information to capture at least minimal reader attention for the issue, but the quality press did little more than anticipate Cold War issues that might arise at the Conference. The 1961 UNCDII coincided with a series of new attacks by the Soviet Union against the United Nations and its Secretary-General Dag Hammarskjöld. In the eyes of the Soviet Union Hammarskjöld interpreted his mandate too liberally, and he caused particular Soviet annoyance running the pro-Western interventions in the Republic of the Congo (Léopoldville, now Kinshasa) giving little support and protection to its first legally elected (and pro-Soviet) Prime Minister, Patrice Émery Lumumba. As a consequence of the pro-Western bias of the United Nation, the Soviet Union boycotted Hammarskjöld and pushed for their troika proposal, creating a collective and unbiased executive organ. From this angle, it was not surprising that the media depicted the UNCDII only as another temporary battlefield for ideological confrontations at the height of the Cold War. Experience had shown that regardless of the size of the conference and the issue under discussion (such as the 1959 conference on the elimination or reduction of statelessness, or the more complex Law of the Sea conferences in 1958 and 1960), East‒West issues could put an oppressive weight on successful negotiations. Consequently, several weeks before the UNCDII, the Telegraph correspondent, Annelise Schulz, suspected the hot topics of the Conference would entail mainly East‒West brushes. On the top of her list were issues such as the right of legation (which according to Western doctrine did not exist) and the size of diplomatic missions (Soviet missions particularly had the reputation of being excessively inflated). But Schulz also pointed

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to other issues on which international customs differed or which were disputed, such as the extension of diplomatic privileges and immunities to administrative and technical staff, the right of asylum in embassy premises and the classification of heads of mission. Shortly after the Conference had started, The Times also published an article that not only touched on similar Cold War issues but also reported the Soviet protest (at the opening of the Conference) against the failure to invite its communist allies.1 Business as usual. However, as mentioned in a previous chapter, this intervention was, if looked at closer and compared to previous conferences, considerably less vigorously debated and took no one by surprise. However, the press made a story out of it as it fitted into previous experiences and the general media expectation that it was only the start of a couple of East‒West confrontations that were to be taken to the Conference floor at Vienna. But there was also a historical fact that made the media suspicious about the probable success of the UNCDII. Annelise Schulz titled her Telegraph article a ‘Second Congress of Vienna’, drawing a parallel to the 1815 Congress of Vienna when the classification of heads of missions and their precedence among each other was codified for the first time.2 Sympathetic towards the idea of the lingering memory of the 1815 Congress, particularly its extraordinary splendour and solemnity, Schulz said that Vienna was ‘determined to live up to its reputation’. She expected some 500–600 delegates from 110 countries to attend the Conference. Participation in the Conference, indeed, could be expected to be nearly universal but, of course, 110 states was a way too optimistic, especially given that the Conference was held under the auspices of the United Nations which in December 1960 counted only 99 members. As the whole world was coming to Vienna, Austrian officials reportedly wanted both to achieve ‘its goals and to amuse’, and Schulz added her part in depicting the Conference, above all, as a solemn act. The solemn aspect of the Conference was also the hook for a short and vitriolic article in one of the British ‘penny press’, tabloid papers. Shortly before the Conference the Daily Express spoke of the ‘men of UNO [who] gather solemnly in Vienna to extend diplomatic immunity to chauffeurs and chefs in embassies’.3 Of course, this sentence included superficially researched facts that were taken out of their context and provided a twisted insight in the Conference objectives. But, on the other hand, it shows clearly 1 2

3

Editorial, ‘80 Nations discuss diplomacy’, The Times, 4 March 1961. Annelise Schulz, ‘Second Congress of Vienna’, Telegraph, 14 February 1961, TNA, T3205. Editorial, ‘Privilege’s Army’, Daily Express, 27 February 1961, TNA, T3205.

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public awareness of a constantly rising number of people enjoying privileges and immunities in London. This caused some difficulties in daily London life and there was always good press to be had in the ‘4000 foreigners who pay no taxes and cannot be sued.’4 Again, although these figures were not accurate the article drew on a well-known problem and the message for the British delegation at Vienna was crystal clear: Britain should not accept more ‘privileged foreigners’ and, instead, should cut down their number.

Statistics of the Vienna Conference The UNCDII was scheduled to last six weeks, including the Easter holiday weekend. It started on 2 March with a Plenary session at the Neue Hofburg and concluded with the signing of the adopted instruments and the Final Act on 18 April 1961. Although the effective negotiations of the Convention had already ended on 14 April, it took a couple of days for the Drafting Committee and the Secretariat to complete the final documents. As regards its proceedings, the work of the Conference was conducted in two fora: Plenary meetings and Committee of the Whole meetings.5 In both bodies the totality of delegations was gathered but each had its own presiding officers and they covered different functional aspects of the Conference work. The more formal acts of the Conference took place in the 12 Plenary meetings: the opening and closing of the Conference, the election of officers, and the adoption of the provisional agenda as well as receiving other conference reports such as the Credentials report. It was also in the Plenary that the final vote was taken on every Article and the Convention as whole after it had been discussed within, and adopted by, the Committee of the Whole. The main bulk of the work was entrusted to the Committee of the Whole.6 Normally it met twice a day in a morning and afternoon session during five days a week and worked on an Article-by-Article basis. It also appointed a subcommittee on special missions which reported back to it and prepared a resolution in order to refer the matter back to the United Nations General Assembly. Taking the 45 International Law Commission  (ILC) 4 5

6

Ibid. The Swiss delegate Rudolf L. Bindschedler mentioned that the conference did not split into different committees thanks to the compactness (‘Einheit’) of the subject matter in question. Bindschedler, R., ‘Die Wiener Konvention über die Diplomatischen Beziehungen’ (1963) 18, Swiss Yearbook of International Law, pp. 29–44 (Bindschedler 1963), p. 32. It started its work on 6 March and closed its last meeting on 5 April 1961.

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draft Articles as the basis for negotiations, it adopted 53 Articles and two optional protocols on diplomatic relations, privileges and immunities in only 41 meetings held on 21  days. According to Karl Zemanek, adviser to the delegation of the Holy See, this was an unusually short period, particularly bearing in mind the roughly 350 amendments and proposals for new Articles which it had to face.7 In addition to the functional difference between these two organs, there were a couple of procedural differences. The most prominent one regarded the voting procedure. While only a simple majority was needed in the Committee of the Whole for an Article to be adopted, all decisions in Plenary required a two-thirds majority. Therefore, it is clear that delegations did indeed do well to discuss in detail all the proposed amendments and obtain a ‘sustainable’ majority. Only once was there a slip-up, and this cost the supporters of an amendment almost the entire provision. This was in respect of Article 35 concerning the acquisition of nationality, when some delegations ignored the severe opposition of the Latin Americans who objected because of likely legislative problems. To put it bluntly, the Latin Americans put their constitutional needs first and asked for the deletion of the Article. A working group sought to reconcile the opposing parties, but no generally acceptable compromise solution was found. Still, the original ILC draft was adopted by a vote of 46, with 12 delegations abstaining and another 12 voting against it. In Plenary, however, the lobbying of the Soviet bloc, Spain and the UAR failed to secure the requisite two-thirds majority for the adoption of the Article.8 Eventually, it was only thanks to an oral Spanish proposal that the principle was rescued by being moved to an optional protocol, which, Erice y O’Shea claimed, would be ‘of great assistance to diplomats in regard to the nationality of their children’.9 As the provision formed no official part of the Convention any longer, the Plenary adopted the proposal and turned the text of former Article 35 into an optional protocol concerning the acquisition of nationality.10 The 81 delegations to the UNCDII ranged in size from 27 to just 1 member according to each state’s interests and financial means. While the number of delegates representing different states delegations varied from conference to conference, general advice on the composition could be found in the rules of procedure adopted by the Conference. At Vienna K. Zemanek, ‘Die Wiener Diplomatische Konferenz 1961’ (1961) 9, Archiv des Völkerrechts, pp. 398–427, p. 404. The final vote on Article 35 as a whole was 42 in favour and 28 against, with 6 abstentions. VCDR Summary Records, p. 31. 9 Ibid., Erice y O’Shea, p. 31. 10 The proposal was adopted by 54 votes to 4, with 11 abstentions. Ibid., p. 31. 7

8

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the rules of procedure put no limit on the size of delegation but stated that delegations should consist of accredited representatives, alternate representatives and advisers. Accordingly, the official conference records counted a total of 318 delegates, split into 161 representatives, 61 alternates, 47 advisers, 26 secretaries and 23 others. Of course, the rules of procedure set out only the formal categories and many delegations included additional experts and most of the larger delegations included also a secretary as well as one or two secretarial staff. The largest was fielded by the host, Austria. By contrast, nine states had one-man delegations and most did not exceed three members.11 After Austria, the largest were the United States (9 members), the Federal Republic of Germany (10 members) and the Soviet Union (12 members including 2 interpreters). The United Kingdom sent an eight-member delegation. In comparison to the size of its delegations to the two previous conferences on the Law of the Sea (1958 and 1960), this was a rather small British delegation but, as we will see, it was still suitable for the task lying ahead.12 The topic of the Law of the Sea conferences was wider, and its nature more contentious, than the technical and mostly reciprocal issue of diplomatic relations, so there was no need for additional permanent, technical experts. It was also in line with the size of delegations from the other permanent UN Security Council members other than the Soviet Union, and the UK delegation, in terms of numbers, was just about average.13 Next to the permanent UN Security Council members, delegations could be categorized along the lines of UN geographical groups: East European, West European, Latin American and Afro-Asian delegations. The Afro-Asian group benefitted from the resolved deadlock in UN membership and its subsequent rapid growth after the 1955  ‘package 48 delegations consisted of 3 or less delegates. There were nine 1-man delegations: Ecuador, El Salvador, Haiti, Mali, Panama, Peru, the Philippines, Saudi Arabia and Uruguay; and the following 21 delegations were composed of 2 members only: Albania, Cambodia, Central Republic of Africa, Ceylon, Chad, Colombia, Cuba, Ethiopia, Guatemala, Honduras, Ireland, Israel, Lebanon, Liechtenstein, Luxembourg, Pakistan, Senegal, Thailand, Tunisia, Union of South Africa and Venezuela. Another 18 delegations consisted of 3 delegates only. 12 The UK delegation at the 1958 Law of the Sea (LOS) conference counted 25 members while the second LOS conference in 1960 was staffed with 19 members. The number of members of delegation was further reduced at the 1963 Vienna Conference on consular relations which counted ten members. 13 The Chinese delegation counted three members while the French delegation had six members. The US delegation comprised 10 members and the Soviet delegation built up around Grigorii Tunkin had 12 members. Thus, the average number of delegates sent by UN Security Council members were 7.6 members. 11

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deal’ admissions. While until 1954 only nine new Member States joined the 51  ‘Charter Members’, in the years between 1955 and 1960 UN membership increased by 40 states deriving mainly from recently independent A­f ro-Asian states. Moreover, the 1960 admission of 20 new Afro-Asian states14 meant that the UNCDII was the first United Nations international law-making conference at which the Afro-Asian delegations were in a clear numeric majority. As Figure  5.1 shows, 29 out of the 81 delegations were sent by Afro-Asian states, giving them the edge over the 20 delegations from West European states (plus France, the United Kingdom and United States from the Security Council group).15 However, only very occasionally did the Afro-Asians present a united front and on the majority of issues they tended to divide into groups according to their differing legal systems and diplomatic practice. The one important exception to this was the discussion of Article 27 on the installation of diplomatic transmitter stations when they successfully organized a blocking third in order to compel a more balanced outcome. The 81 delegations submitted a total of 377 amendments and proposals for consideration in the Committee of the Whole (Figure 5.2).16 According

5

12

20

Security council Permanent members Eastern European states

29

15

Western European states +other Latin American states Afro-Asian states

Figure 5.1  Voting blocs at the Vienna Conference These states were: Benin, Burkina Faso, Cameroon, Central African Republic, Chad, Congo, Côte d’Ivoire, Cyprus, Gabon, Madagascar, Mali, Niger, Nigeria, Senegal, Somalia, Togo and Zaire. 15 The composition of the conference according to regions and influence groups was: 6% Permanent Security Council Members, 15% East European delegations, 19% Latin American delegations, 25% West European delegations and 36% Afro-Asian delegations. 16 Delegations and scholars have forwarded in their reports and articles different numbers; however, all agree that the number of amendments was well over 300. The official conference records have recollected a total of 359 amendments and 18 proposals submitted for consideration in the Committee of the Whole. 14

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35 Delegations

30 25 20 15 10 5

nd Sw

itz er

la

ce

K U

Fr an

M

ex i

co

ly Ita

SA U

Sp

ai

n

0

Figure 5.2  Amendments and proposals in the Committee

to the Canadian delegation, many of these amendments had been withdrawn before the start of debate and a great number of the remaining amendments concerned matters of legal propriety rather than of national interest. The Canadians also reported that an irreverent bystander might have observed a certain crude proportion between the quantity of a delegation’s amendments and the juristic ambitions of its head. This was certainly true of José Sebastian de Erice y O’Shea, the head of the Spanish and most active delegation, at least in terms of amendments introduced. His background in international law encouraged him to make many speeches and to submit a total of 33 amendments and proposals. However, as the US performance demonstrated the quantity of amendments did not necessarily equal leadership and influence. Although the delegation was well staffed, in number and quality, and although it introduced 23 amendments and proposals in the Committee, the US delegation only exerted influence on subjects with some political bearing, such as on the appointment of presiding officers, the accession formula and the final clauses. On substantive issues, the US delegation was the weakest of the three leading powers.17 It was not only in comparison to the great powers the US delegation lost out. In the eyes of the Canadian delegation, the United States seemed to be ‘strangely out of touch’ and a great many of its 23 amendments were overwhelmingly voted down. This phenomenon found its climax in the voting on a US amendment to Article 39, paragraph 2. In this instance, the United States 17

These powers were, next to the United States, the Soviet Union and the United Kingdom.

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wanted to introduce the principle that the loss of privileges and immunities should take effect from the time when the diplomat’s functions ceased. By contrast, many other delegations, including those from the Soviet bloc, thought nationals of the sending state should continue to enjoy privileges and immunities until they left the territory of the receiving state. Despite the obvious opposition of a substantial number of delegations, the United States forced an open roll-call vote on the amendment but was almost humiliatingly defeated, with 28 votes to 13, with 28 abstentions. It remained the only roll-call vote the US delegation asked for.

Articles and Documents adopted by the Conference The UNCDII adopted seven instruments which are embodied in the Final Act. Next to the Vienna Convention on Diplomatic Relations the Conference produced two optional protocols, concerning the Acquisition of Nationality and the Compulsory Settlement of Disputes, as well as four resolutions.18 Although the final Convention followed the general structure of the draft Convention, the original 45 ILC draft Articles grew, despite some losses, to eventually 53 Articles including the Convention’s final clauses plus a preamble (Figure  5.3).19 Despite of the high quality of the ILC drafts, delegations introduced a flood of amendments which, particularly towards the start of the Conference, meant there was a good deal of speeches and long interventions. Inevitably, these discussions led to four additional Articles throughout the Convention. In the first section of the Convention, Articles 1–19 on formal matters, two additional Articles were introduced: Article 6 on multiple accreditation and Article 17 on precedence among members of diplomatic staff. No new Articles emerged in the middle section, on the privileges and immunities of diplomatic missions, and classes of diplomatic agents (Articles 20‒40). The third group of miscellaneous Articles (Articles 41‒47) were supplemented by two more: Article 42 on the professional or commercial activity of a diplomat and Article 46 on the protection of state interests. Yet although On Special Missions, on Consideration of Civil Claims and two others expressing the conference’s gratitude to the International Law Commission for its preparatory work and to the Government and people of the Republic of Austria for hosting the conference. 19 It was usually the case that the International Law Commission left the drafting of a potential preamble and the formulation of the convention’s final clauses (regulating accession, ratification and the depository power) to the conference. 18

Analysis of the 1961 Vienna Conference Negotiations

2 Optional Protocols

Final Clauses

Article 42 Article 17 Article 6 Preamble

(ILC Article 35) (ILC Article 45)

=

53 VCDR Articles

45 ILC Articles Article 46

115

Preamble

Figure 5.3  VCDR content overview

a good many amendments were proposed, most delegations took a constructive approach towards the ILC draft and, like the Canadian and British delegations, were instructed to support the ILC draft Articles where possible. In particular, the first 19 Articles concerning formal matters followed closely the ILC draft, and out of the 47 substantive Articles (without final clauses), 7 remained unchanged and no amendments were proposed to 4 Articles. Moreover, some Articles, such as Article 25, were adopted without debate in Committee and Plenary. Only exceptionally (Articles 15 and 28) were Articles adopted without a vote at all. As is usual for international law-making conferences, the preparatory organ (i.e. the ILC) had left it to the Conference itself to draft preamble and suitable final clauses. While the preamble is, legally speaking, not part of the Convention, it is important for the interpretation and application of the Convention.20 It opens in a pleasant way to include matters of principle that did not fit in between the Articles or (as regards the theory of diplomatic privileges and immunities) was deemed unsuitable for inclusion in a practice-orientated convention. By contrast, the final clauses adopted by 20

Bindschedler (1963), p. 35.

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the Conference were a crucial part of the Convention since they stipulate when, and for how long, the Convention would be open for signature. At Vienna the question of the depository power surprisingly became an issue. Normally, the United Nations serves as the depository for legal instruments adopted during conferences held under its auspices. However, the final clauses of the Vienna Convention provided that the Convention and the protocols remained open for signature in Vienna until 31 October 1961 and would then be kept open at the United Nations headquarters in New York for another five months until 31 March 1962. During the UNCDII no ILC draft Article was deleted without being replaced, which again reflects the high quality and good balance of the draft Articles. Only on two Articles were delegations significantly divided and, when it was recognized that they would fail to secure the necessary two-thirds majority in Plenary, the draft Articles were relegated to the form of optional protocols ‒ hence, the Optional Protocols on the Acquisition of Nationality (adopted in place of ILC draft Article 35) and another concerning the Compulsory Settlement of Disputes (which replaced ILC draft Article 45). The underlying principles of both these Articles were too disputed to be included in a convention whose legally binding provisions later would be translated into national law. Without such a relegation, the opponents to both draft Articles (i.e. the many Latin American countries following the ius soli principle21 on draft Article 35 and the communist countries which did not accept the jurisdiction of the International Court of Justice (ICJ) on draft Article 45) would probably have never ratified the Convention. Therefore, although it was not the preferred solution, it was the only possible means of maintaining in some form these provisions without endangering the adoption of the Convention as a whole. Finally, and in addition to the two optional protocols, the Conference adopted four resolutions. Two of them expressed gratitude: to the ILC for its outstanding contribution to the codification process and to the government and people of the Republic of Austria for splendidly hosting 21

Many ius soli countries found it difficult to apply the articles provision to their national legislation. Ius soli (also jus soli) countries base their citizenship on the place of birth (birth right citizenship), in contrast to ius sanguinis (jus sanguinis) countries which base citizenship on ties of blood. In some other states nationality may be acquired in either way, however, often with one exception to it: children of members of the diplomatic mission born in the receiving state. Francis Vallat (legal adviser, FO), ‘Report on the International Conference on Diplomatic Intercourse and Immunities held at Vienna, March 2 to April 18, 1961’, TNA, FO372/7578 (Vallat report).

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the Conference and meeting a considerable portion of its costs. 22 The other two resolutions concerned the subjects of ‘special missions’ and ‘consideration of civil claims’. The latter had originally been submitted by the Israeli delegation during the last Plenary meeting. There had been little time at the end of the Conference to debate new proposals in detail. However, there seemed nothing obviously wrong in issuing a reminder that the purpose of diplomatic immunities was ‘not to benefit individuals, but to ensure the efficient performance of the functions of a diplomatic mission’ and also to recommend the waiving of immunity when it would not impede the functioning of the mission (or whenever immunity was not waived to aspire for a just settlement of claims). Accordingly, the Israeli resolution slipped through. On the other hand, ‘special missions’ had been point 11 on the Conference agenda and at its 23rd meeting the Committee of the Whole had referred the item to a nine-member subcommittee. 23 The subcommittee held three meetings in which it found that the quality of the drafts on special missions was not as high as that on diplomatic privileges and immunities. 24 Furthermore, the draft Articles on special missions only indicated which Articles of the 1958 ILC draft Convention would apply to ad hoc diplomacy (special missions). Given its limited resources (time and staff), the subcommittee argued that there was not enough time to bring the Articles up to a suitable standard for inclusion in an international convention. Consequently, the subcommittee recommended referring the issue back to the General Assembly of the United Nations with the suggestion that the draft Articles be referred back to the ILC for further examination. The Committee of the Whole agreed and drafted a corresponding resolution which was adopted unanimously in Plenary.

Furthermore, Vienna entertained the delegations with two major receptions and a couple of other events. On 15 March 1961 the Austrian government invited the delegations to a reception at Schönbrunn Palace, and on 6 April 1961, the Mayor of Vienna invited to another in the City Hall. On 22 March 1961 delegations were invited for a screening of the Spanish Riding School of Vienna. Dankwort to German FO, del. Wien-3/61, 11 March 1961, PA, B80 315. 23 Members of the subcommittee: Ecuador (Neftali Ponce Miranda), Iraq (Mustafa Kamil Yasseen), Italy (Adolfo Maresca), Japan (Michitoshi Takahashi), Senegal (Boissier-Palun), the Union of Soviet Socialist Republics (A. P. Movchan), the United Kingdom (Tom H. Glasse), the United States (Ernest Kerley) and Yugoslavia (Milan Bartos). Neftali Ponce Miranda was elected chairman of the subcommittee by acclamation at its first meeting on 22 March 1961. See VCDR summary records, pp. 45–6. 24 The subcommittee meetings took place on the 22, 24 and 29 March 1961. 22

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The positive Conference atmosphere and spirit of cooperation One of the key elements to successful and sound conference diplomacy is the creation of confidence between delegations. At international lawmaking conferences, confidence starts building up with the preparation of sound draft Articles, and, at best, spreads out during the holding of the Conference through the interactions of delegations and the participation of their delegates during the work in Committee and on the dais. Experienced conference delegates speak of confidence as a psychological trait which emanates from individual behaviour but it may evolve as a collective feature of a Conference. Although it was not expected by everyone in the running up to the Conference, this is exactly what happened at the 1961 UNCDII. At the outset of the Conference, a couple of pessimistic voices had been heard among the delegates. The six weeks allocated to the Conference seemed too short and the political atmosphere too divided to reach unanimous agreement, particularly on ‘the more important issues’25 of diplomatic privileges and immunities. However, looking back on the Conference negotiations as a whole, many Conference participants and scholars do not think negative thoughts were prevailing. The Conference was praised for its positive atmosphere. After a slightly sedate but smooth start in the Committee of the Whole, a positive atmosphere quickly grew. The harmony of the proceedings was in no small part because of the exciting Conference venue, the spacious Neue Hofburg Palace, that provided a variety of meeting places for informal discussions. However, above all negotiations were facilitated by the non-political nature of the subject and its technical aspects, as well as the conviction of the need to agree a convention, that lent itself quite well towards codification. Groups of delegations cooperated and individual delegates and presiding officers provided the leadership and confidence necessary for successful codification.26 Moreover, cooperation between East and West and also between delegations in general had a couple of general strategic-political reasons. In contrast to other codification projects of that time (i.e. Law of the Sea), diplomatic relations lent itself quite well towards codification for several Waldron, ‘Report of the Irish Delegation to the Conference on Diplomatic Intercourse and Immunities, Vienna, March 2 to April 18, 1961’, INA, DFA, 417/244 (Irish delegation report). 26 While the chairman of the Committee of the Whole aimed for final decisions of at least two articles per day, during the first 5 days it was only one per day. 25

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reasons. Despite the Cold War difficulties, the codification of diplomatic relations fell on fruitful ground as it aimed to regulate precisely and to reinforce the basic rules for diplomatic relations. In addition, codification of many of the Eurocentric rules had been long accepted in both the East and West and the Vienna Conference being the moment in which they could be adapted by the recently independent states as their own. Furthermore, the post-war years had seen the emerging of many international organizations which often claimed diplomatic immunities and privileges for their staffs. A clear-cut codification of expressly diplomatic immunities would draw a dividing line between state intercourse and what to that time had not yet considered as a diplomatic process, the relations between states and international organizations. Indeed, interestingly enough, as Richard Langhorne points out, the Vienna Convention was concluded to the end of a time when it still could be argued that the sole right of legation, in form of sending and receiving diplomatic missions, was with states.27 Finally, there was a fourth reason why the codification of diplomatic privileges and immunities was generally deemed desirable. Not only did capitals such as Paris and Rome have to struggle with the increasing personnel working for international organizations, the multiplication of states led to inflation of the diplomatic corps in general. Historically, even if it were only regionally applied such as the 1928 Havana Convention on Diplomatic Officers, codification tended to reduce traditionally conceded privileges rather than expanding them. Therefore, the Vienna Convention was seen as an opportunity to reduce those privileges which could be abandoned and which in the public eye had lost much of their traditional essence and whose misuse, more often than in the past, had become a hot topic discussed in the public media.28 In addition, the auto-regulating nature of diplomatic relations helped to avoid politically driven negotiations despite the high political tension of that time. Diplomatic relations are characterized by a certain measure of self-regulation. Owing to the reciprocity of diplomatic relations in which states almost invariably send as well as receive resident missions, breaches of diplomatic traditions will likely have an immediate effect on a violator’s personnel abroad, and this provides a relatively effective means R. Langhorne, The 1961 Vienna Convention on Diplomatic Relations: History and the Future (Symposium to mark the 50th anniversary of the 1961 Vienna Convention on Diplomatic Relations, Leuven, 2011), p. 10. 28 To the extent the public was touched by diplomatic privileges and immunities; it was they who mostly suffered from, say, failing to pay rent or damaging property or accidents in which diplomatic immunities were not lifted and not much more could be done than to declare a diplomat persona non grata. 27

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of punishment. At Vienna, not least this nature of diplomatic relations had a beneficial effect on the Conference negotiations, and although there was a slight tendency of major states to focus on the protection of their personnel abroad, there were no instances in which diametrically opposed positions collided and could have threatened to cut successful Conference negotiations. Strong feelings were occasionally vigorously expressed in speeches and there were unexpected and rare situations of political tension, but in no circumstances did these have a lasting effect on the proceedings as a whole. In only very few instances was the positive spirit disturbed. This was the result, on the one hand, of a politically inspired Belgian intervention towards the beginning of the Conference and, on the other hand, during the discussion of the report of the Credentials Committee regarding the Hungarian credentials towards the end of the Conference. The latter disturbance had become pretty much par for the course following the failed Hungarian revolution in 1956, but the Belgian intervention had come as a surprise and delegations were eager to avoid any negative influence on the following negotiations on the inviolability of mission premises. What had happened was that during the opening remarks in the Committee of the Whole, the Belgian delegate blamed, without giving names but in an obvious fashion, the UAR authorities for their passivity earlier that year when the Belgian embassy in Cairo was burnt during protests over the murder of the president of the former Belgian Congo. 29 The officials of the receiving state had, he said, not fulfilled their responsibility as a receiving state to protect the premises of the mission. Although only the United Arab Republic (UAR) took up the gauntlet and intervened (twice), there were fears that the ugly head of political discussions might arise anew when the Conference discussed Article 22 on the inviolability of mission premises. However, the Conference regarded this political intervention with disfavour although the Belgians received much support outside the Conference and the issue had also been discussed in the North Atlantic Treaty Organization (NATO) Council. All NATO delegations were agreed that political issues should be avoided at all costs and so it came that, despite the existence of substantial support for Belgium, Belgium not only showed satisfied with the provisions of Article 22 but hoped the debate would be limited The United Arab Republic (UAR) came into existence in 1958 when Syria and Egypt formed a union. The Union ended on 28 September 1961, when Syria, following a military coup, declared itself independent of Egypt. Egypt retained the name UAR until 1971, when it became the Arab Republic of Egypt.

29

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to uncontroversial statements of support for it. There was no renewed political debate between the delegations of Belgium and the UAR, it being generally agreed that ‘broad support should be given to the principle of inviolability’ throughout the Convention. Episodes like this showed the delegations’ desire for a non-political debate and the cooperative spirit of all Conference participants, which contributed to a general final impression that the Conference atmosphere was surprisingly positive and, contrary to what might be deduced from the general international context, the ‘unusually constructive, goodnatured, and amicable’ nature of the discussions.30 This awareness of the importance of avoiding issues that, once opened up, would be difficult to agree upon was, most importantly, recognized by the two big blocs led by the Soviet Union and the United States, so many fundamental questions were agreed almost without discussion. The most obvious case in which all states agreed that there was no hope of finding agreement between East and West once discussion commenced was during the negotiations of Article 26 on the freedom of movement. Vallat, the British head of delegation, described the Article as a technical compromise on political issues which it would be ‘very unwise’ to reopen.31 Italy, the Philippines and Venezuela accordingly withdrew their proposed amendments. By so doing, they avoided opening a Pandora’s box on an issue with the potential to become the most difficult sticking point of the Conference. But the Soviet and British delegations were at one in determining to bar dissension (mainly in form of new amendments). Capitalizing on the general feeling of harmony, these delegations evoked ‘the wisdom of the ILC’ to defend the pre-negotiated drafts against a flood of amendments which could have led to a prolonged debate, if not failure over the more controversial and legally complex points. In this way, harmony became a psychological factor that was used by the great powers to defend their interests against the numerous minor powers. However, while evoking the wisdom of the ILC worked out well for these powers, it started to annoy the minor powers. This explains the impression that the Conference tended to split vertically between North and South rather than horizontally between East and West. While harmony was appreciated by all, when the delegations of minor powers saw the balance of reciprocity disturbed or perceived the codified rules as being too traditionally Eurocentric, they took advantage of their numeric majority and united in their common objective of putting their handwriting on the Convention, too. Lloyd (2007), p. 198. Canadian delegation report.

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Types of disputes and negotiation examples The pre-negotiated ILC draft Articles rendered an indispensable service to the success of the negotiations in facilitating the work of the Conference and supporting its cooperative and ‘unusually constructive’ atmosphere.32 However, even the UNCDII was showplace of a couple of intensive arguments and on a few occasions the Conference faced deadlock due to severe differences of opinion. As an indication for the diversity of views Figure  5.4 provides an overview of the number of delegations that were directly involved in negotiations according to the Articles. It is essential for the efficient conduct of conference diplomacy to know whether conflicts are a result of, on the one hand, negotiation points on which delegations disagree but at some point have agreed to disagree and, on the other hand, sudden, unexpected arguments. Additionally, there are several principal categories of conflicts, classified as political, economic, budgetary and elections. 33 Again, because of the well-prepared draft and the technical nature of their content, the great majority of disputes were anticipated and political conflicts were reduced to a minimum. At the

Final Clauses Article 37 Article 36 Article 34 Article 27 Article 8 Article 1 Preamble 0

5

10

15

20

Number of delegations

Figure 5.4  Number of delegations engaged in article discussions Canadian delegation report. Kaufmann (1968), pp. 69–74.

32 33

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same time, the conflicts that arose in Vienna may be roughly categorized along Kaufmann’s lines and four kinds of arguments may be identified: (1) canned arguments which were known in respect of which some kind of compromise still needed to be found; (2) disagreements which arose due to the progressive codification of diplomatic custom; (3) Cold War issues in respect of which had been taken into account when the ILC drafted the Articles but which could not always be avoided and, last but not least, (4)  arguments which arose because of a disturbed reciprocity and codification threatened to produce one-sided benefits in terms of different needs due to either the size of missions or financial inequalities between states.

Canned arguments The Vienna Conference inherited a couple of issues from earlier unsettled discussions in the ILC. These Articles attracted a good number of amendments because discussions in the ILC had not led to a satisfactory result. Therefore, discussions on those points were pre-fabricated and delegates hoped that a solution would be found during the negotiations at Vienna. Canned arguments, therefore, arose over the establishment of diplomatic relations and the supposed right of legation, the functions of a diplomatic mission (regarding the inclusion of consular functions), and the right of accommodation (Article 21) in respect of which seven amendments were tabled and all but one were withdrawn. Furthermore, the negotiation of Article 14 on the classes of heads of mission was of particular interest to the British and French. The question arose whether they would submit amendments to accommodate the titles of high commissioner and high representatives, which were used within the French colonial empire and the British Commonwealth, respectively. The clearest example of a pre-programmed dispute, however, was probably the inclusion of ILC draft Article 45 on the compulsory settlement of disputes via the ICJ (Table 5.1). The problem over the ILC’s draft Article 45 was threefold. The most obvious one was that not all states were willing to accept the jurisdiction of the ICJ. Indeed, in 1961 fewer than a third of the state parties to the Court’s Statute had accepted the optional clause specifying the circumstances under which they would recognize the ICJ’s compulsory jurisdiction.34 In particular, the Soviet bloc was doubtful about the impartiality of the VCDR summary records, Carmona of Venezuela, paragraph 60, p. 221.

34

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Table 5.1  Compulsory settlement of disputes ILC Draft Article 45

VCDR Optional Protocol concerning the Compulsory Settlement of Disputes

Any dispute between States concerning the interpretation and application of this Convention that cannot be settled through diplomatic channels shall be referred to conciliation or arbitration or, failing that, shall, at the request of either of the parties, be submitted to the International Court of Justice.

Article II The parties may agree, within a period of two months after one party has notified its opinion to the other that a dispute exists, to resort not to the International Court of Justice but to an arbitral tribunal. After the expiry of the said period, either party may bring the dispute before the Court by an application. Article III 1. Within the same period of two months, the parties may agree to adopt a conciliation procedure before resorting to the International Court of Justice. 2. The conciliation commission shall make its recommendations within five months after its appointment. If its recommendations are not accepted by the parties to the dispute within two months after they have been delivered, either party may bring the dispute before the Court by an application.

ICJ, and no matter how well the relevant Article might have been drafted, these states would not agree to the compulsory judicial settlement of disputes. Bearing in mind that the Soviet bloc could count at least about 15% of the votes, it was unlikely that the original Article 45 would attract the necessary two-thirds majority in the Plenary. But even during the discussions in the Committee of the Whole, it had become clear that the Soviet bloc did not stand alone in opposition. As Zemanek observed, many Afro-Asians states sided with the Soviet bloc in keeping draft Article 45 out of the Convention.35 The Afro-Asian delegations oriented on the recommendation of the Asian-African Legal Consultative Committee. This Committee, which had drafted a set of provisional Articles similar to those of the ILC, had decided to omit any provision for the compulsory settlement of disputes between states and had not considered it appropriate to adopt the ILC’s draft Article 45, since the governments held divergent views on the matter. 35

Zemanek (1961), p. 426.

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In the light of the Soviet and Afro-Asian opposition to the draft Article, neither the US nor the UK delegations, which, in other circumstances would probably have supported the Article, took too much effort in its rescue. Looking at the negotiation history of the draft Article, its improbable adoption had been evident already from the time of its inclusion by the ILC draft. But the United States attached more importance to keeping the issue alive in times of ‘moderate support for such means’ than actually obtaining the adoption of the Article. 36 Kerley, an adviser to the US delegation, later reported that reliance on the ICJ would be emphasized by the efforts to include such an Article in the Convention together with the signatures of a number of states under the optional protocol on compulsory settlement of disputes. A similar view was taken by the British. Although the provision would have been in line with government policy, the United Kingdom favoured the adoption of an optional protocol. In any case, relegating the matter to an optional protocol was not novel; the first Law of the Sea conference had dropped a similar Article and, instead, adopted an optional protocol. Retaining an Article which was not essential would have prevented many states from becoming part of the Convention and, at best, would have attracted a great number of reservations that would have undermined the authority of the Convention. In the end, for the British it was not a matter of voting on the principle of obligatory settlement of disputes but of finding a way to secure the broadest possible support for the Convention. By contrast, many Latin American and continental European delegations fought vigorously for the adoption of draft Article 45. Above all the Swiss delegation fought hard and almost ‘heroically’ for it.37 It is the Swiss efforts that provide a splendid example of the art of multilateral conference diplomacy and the value of a good knowledge of the rules of procedure and the application of procedural motions in influencing the outcome. The situation was as follows. Draft Article 45 was raised at four meetings, two in the Committee of the Whole and another two in Plenary. During the Committee of the Whole, four kinds of amendment were introduced. Bulgaria requested the plain deletion of the Article and was seconded by delegations of the Soviet bloc, which, inter alia, argued that the compulsory settlement clause had been deleted from the ILC draft Convention on consular relations. Another two amendments aimed to retain the essence E. L. Kerley, ‘Some Aspects of the Vienna Conference on Diplomatic Intercourse and Immunities’ (1962) 56, AJIL, pp. 88–129, p. 126. 37 Bindschedler (1963), p. 43. 36

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of the Article providing that both parties agreed to use the ICJ. 38 A third group of amendments (submitted by Japan, the United States and Belgium) were intended to retain the ILC draft with only minor changes. By contrast, an alternative proposal (submitted by Iraq, Italy, Poland and the UAR) suggested substituting an optional protocol along the lines of that which had been adopted by the first United Nations conference on the Law of the Sea of 1958. Switzerland had been one of the co-sponsors of that 1958 optional protocol but, according to Kerley, felt misunderstood, as the draft protocol was introduced as a last resort only after the original draft Articles had failed. Switzerland was determined to stand firm on the principle of compulsory jurisdiction and called for a recorded roll-call vote.39 In line with the procedure followed during the 1958 Law of the Sea conference, the chief Swiss delegate, Paul Ruegger, proposed that a vote on the principle of compulsory settlement of disputes should precede the voting on amendments. In this way, Switzerland hoped to avoid a vote on those amendments that were intended to eliminate draft Article 45 as a whole. But the delegations of Venezuela and Tunisia objected and pointed out that the substance of the amendments was clear to the delegations and there was no reason for such a vote. Instead, the proposal for an optional protocol should be voted first. The chairman, Lall, announced that, according to the rules of procedure, the Committee had to vote first on the amendments themselves, starting with the most remote from the original text. Consequently, the Committee voted on the four-power proposal to replace Article 45 with an optional protocol and adopted it by a vote of 49 to 7, with 16 delegations abstaining. In Plenary, however, Ruegger re-introduced the text of ILC’s draft Article 45 via an amendment to the optional protocol that had been adopted in Committee. He reiterated his intention to force a roll-call vote on this amendment, but again his intervention was in vain. The Indian delegate, Krishna Rao, pointed out the successful adoption of the optional protocol in the Committee of the Whole, and not least to save time, Rao suggested that priority be given to the voting on the adopted optional protocol. This request was agreed by a vote of 40 to 28 with 7 abstentions, and the new optional protocol was then adopted by a vote of 63 to 3, with 9 abstentions.40 Amendments introduced by China (Taiwan) and Argentine/Guatemala. Roll-call votes were a time-consuming issue as voting took place openly and in alphabetic order but it was also a suitable tool in order to build pressure on delegations and mainly on those that were undecided yet. 40 Even in Plenary, procedural motions require only a single majority in order to get passed. 38 39

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Progressive codification In his report on the achievement of the Vienna Conference, Vallat described the Convention as a ‘fair codification of existing law and practice with some significant changes’.41 This will say, the Vienna Convention includes both, Articles that codified existing diplomatic practice as well as Articles that contained a progressive development of diplomatic law. In contrast to the mere codification of custom, these Articles are dealing with issues which before had not been recognized custom and present a prescriptive codification of how the law should be. As the history of the codification of international law under the League of Nations had shown, the procedure was questionable in many states’ eyes and the ILC was skating on pretty thin ice. Accordingly, the ILC commissioners wanted to keep the so-called progressive codification within limits. It was not surprising that at Vienna the major powers were keen to stick to traditional rules while the delegations of smaller, younger states tended to be quicker to agree to suggested new provisions. While the codified rules were already the utmost that Britain, France and the Soviet Union were willing to accept, some steps towards progressive codification were deemed necessary given the current political climate and changes in international society. At least 6 out of the 53 Articles fall into this category: parts of Article 22 on the inviolability of mission premises; Article 27 on freedom of communication; Article 31 on the diplomat’s immunity from jurisdiction; Article 34 on exemption from taxation; Article 37 on the extent of immunities for administrative and technical staff (as well as the exclusion of permanent residents) and Article 38 on nationals and permanent residents of the receiving state. The negotiations over Article 22 on the inviolability of mission premises are particularly worth looking at. This is partly because it is striking that diplomatic asylum is not once mentioned because of a sharp difference of opinion, although many Latin American delegations would have welcomed a provision on the subject.42 But mainly it is because the inviolability of mission premises is a long-standing and fundamental principle and the Vallat report. The complete inviolability of mission premises meant that the host state cannot enter, similarly to the principle of diplomatic asylum. Codified in the 1928 Havana Convention, the practice to grant diplomatic asylum had become accepted practice in Latin America; however, it was by no means a universal practice and, that is, not recognized in Europe. In order to avoid any discussion which, in the worst case, could provide arguments which could weaken the principle of absolute inviolability of mission premises, the issue of diplomatic asylum was cancelled out as early as in the 1957 ILC discussions.

41

42

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great majority of delegations were determined that the inviolability of mission premises must be declared absolute. In other words, there were to be no exceptions, even in emergencies such as fires. Furthermore, the Article contains a provision that extends diplomatic immunity to the means of transport of a diplomatic mission, which embodies a change to the 1958 ILC draft and a progressive codification of diplomatic custom. The ILC draft on the inviolability of mission premises contained three paragraphs (Table 5.2). In the first it provided a clear description of the implications of the inviolability and the last established the immunity of furnishings of mission. The second paragraph put a special duty on the receiving state to protect mission premises. This was an undisputed principle but the recent burning of the Belgian embassy in Cairo prompted expectations of a controversial and mainly political debate. However, the anticipated political debate was largely avoided. During the opening debate, the Belgian allusion to this episode had been received unfavourably and all NATO delegations, including Belgium, subsequently agreed about the importance of avoiding a reopening of any political debate on paragraph 2. The NATO states had discussed the issue in regular NATO Political Committee meetings when the Belgian representative raised the topic of diplomatic privileges and immunities, and the delegates of Italy, Canada, Table 5.2  Inviolability of mission premises Inviolability of mission premises ILC Draft Article 20

VCDR Article 22

1. The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, save with the consent of the head of the mission.

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 and their furnishings shall be immune from any search, requisition, attachment or execution.

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.

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the Netherlands, West Germany and France were subsequently instructed to support the Belgium position.43 Hence, a much harsher tone in the language of paragraph 2 might, possibly, have been adopted but the Belgian delegation signalled its satisfaction with the provision, and there was only an uncontroversial debate on the support of the embodied principle evolved during the negotiations. Attention to the inviolability of mission premises had been spurred on by the burning of the Belgian embassy, and the Canadians counted no fewer than 60 interventions during the debate (all of which were in favour of protecting the inviolability of mission premises). Many speakers warned against any limitation of this principle, even in cases of danger to life and limb and public emergency. This was one of the main factors behind the bad prospects for any of the tabled amendments providing for exceptional cases such as public emergency (Japan and Ireland) or when there was danger to life or property (Spain), and why they were withdrawn early on. Only a Mexican amendment, which required heads of mission to cooperate with the local authorities in extreme emergencies, withstood for discussion a little longer, but it was withdrawn before any vote could be taken. In the light of possible abuse of such a provision, NATO delegations and the Soviets alike questioned the desirability of setting out precise exceptions and the Mexican delegation had no option but to withdraw its amendment. In any event, while the final Article does not provide for any exceptional cases, Vallat acknowledged in his report that at Vienna it was widely recognized that in grave emergency it might be necessary for the agents of the receiving state to enter the premises without first obtaining the consent of the head of the mission.44 During the discussion on paragraph 3, the Ukrainian delegation introduced an amendment to insert the words ‘and other property’. In so doing, he explained that this meant only property within the mission premises. On that understanding the Committee of the Whole agreed and adopted the amendment unanimously.45 While the discussions in the Committee of the Whole took place during the middle of the Conference, by the time the issue was discussed in Plenary the Conference was approaching its last days and was under considerable time pressure. No The Vienna Conference had been a fix agenda point on the NATO Political Committee meetings from the Vienna Conference’s beginning until the end of March 1961. P. Murray (UK delegation to NATO) to FO, letters, 18 March 1961 and 21 March 1961, TNA, FO372/7575. 44 Vallat report. 45 The voting result was 60 votes to null, with 10 abstentions. 43

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further amendment, therefore, had been tabled for the Plenary discussion. However, the Spanish introduced an oral amendment to extend the immunity of the premises, furnishings and other property including the means of transport used by the mission. Given time constraints and the fact that it was an afternoon Plenary meeting and delegates were suffering from mental and physical exhaustion, there was little detailed discussion of possible practical implications of this rather minor amendment. The Plenary adopted the Spanish oral amendment by a vote of 40 to 7 with 16 abstentions and the Article as a whole was, again, adopted unanimously with three abstentions.46 As it happened, during the Plenary meeting the British delegation had been aware of the potential practical problems that extending immunity to means of transport might entail, but having failed to avoid its adoption Vallat concluded that at least the gained immunities were not as great as if the means of transport had been accorded the same inviolability as is accorded to the premises of the mission itself by paragraph 1. Therefore, Vallat expected that local police forces could at least remove such means of transport if they were obstructing the traffic.47 In conclusion, Article 22 is a good example of how codification has helped to make concrete diplomatic custom and it showed the universal support for absolute immunity of mission premises. It also illustrates the importance of the time factor and of not underestimating the problems arising from time running out. The negotiation of paragraph 3 is illustrative of how amendments might slip through, leading to less thought-out regulations of international law.

Political, Cold War confrontations A number of Articles had political Cold War implications. Early on in the drafting process, members of the ILC had taken into account the divergent interpretation of diplomatic practice between these opposing blocs and tailored the formulations of these Articles to fit the needs of the missions of both camps. This had the advantage that the negotiations of potentially critical issues on which East and West had divergent practices, such as the right of the establishment of diplomatic relations (Article 2), size of the diplomatic mission (Article 11), the right of accommodation (Article 21) and the freedom of movement (Article 26), did not run into deadlock but remained smooth. This success was bought at the price of The voting result was 67 votes to null, with 3 abstentions. Vallat report.

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a certain stiffness of these Articles. In his Conference report, Zemanek criticizes these parts of the Convention for not having been made with the needs of the future in mind, and he speculated that they might soon be outdated. Only a few delegations, he said, were well aware that the Convention was intended to last a long time but the result of this special orientation was ‘these [A]rticles may fit poorly to changing relationships’.48 Even so, Cold War issues did arise, although they were less forcefully debated than anticipated by the press. The most difficult moments when the East and West brushed up against each other came when the Conference had to discuss issues that had not been previously prepared by the ILC, namely the preamble and, particularly, discussions of the final clauses of the Convention.

Preamble Luxembourg had already, in the comments on the 1957 draft Articles, raised the question of a preamble (Table 5.3). In the following, 1958, ILC session, discussions on a potential preamble were focused on the inviolability of mission premises (indicating possible cases of emergency providing for exceptions to the inviolability of mission premises) and the mentioning of the reciprocal character of diplomatic privileges and immunities.49 Thus, commissioner Verdross (who later became president of the 1961 Vienna Conference) noted that a preamble could indicate that the draft Articles are not meant to be exhaustive. 50 However, the final 1958 ILC draft Convention did not include a preamble because the ILC, as a whole, thought it unnecessary to add any theory to the Convention. 51 Nevertheless, the ILC explained some of its theoretical assumptions in its commentary on the final, 1958 draft Convention. When the Conference met in Vienna, the Soviet Union and its allies made clear that they wanted a preamble. At the first meeting of the Committee of the Whole, Endre Ustor of Hungary explained that both the 1928 Havana Convention and the 1960 Colombo draft Articles (prepared by the Asian-African Legal Consultative Committee) were preceded by a preamble. Lall, the newly

Zemanek (1961), p. 407. The new Article 10: Size of mission gave rise to provisions on non-discrimination and reciprocity. 50 United Nations Secretariat, Codification Division, Office of Legal Affairs, YBILC 1958: Volume I, Summary records of the tenth session (New York: United Nations, 1958) (YBILC 1958), Verdross, p. 127. 51 Denza (2004), p. 11. 48 49

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Table 5.3  Preamble Preamble Proposed text by Burma, Ceylon, India, Indonesia and the United Arab Republic

Preamble to the VCDR

The States parties to the present convention, Recalling that peoples of all nations from ancient times have in practice and by conviction respected the status of diplomatic agents;

The States parties to the present Convention, Recalling that peoples of all nations from ancient times have recognized the status of diplomatic agents;

Having in mind the purposes and principles of the Charter of the United Nations concerning the sovereign equality of states, the maintenance of international peace and security and the promotion of friendly relations among nations;

Having in mind the purposes and principles of the Charter of the United Nations concerning the sovereign equality of States, the maintenance of international peace and security and the promotion of friendly relations among nations;

Believing that an international convention on diplomatic intercourse and immunities would contribute to the development of friendly relations between nations, irrespective of their differing constitutional and social systems;

Believing that an international convention on diplomatic intercourse, privileges and immunities would contribute to the development of friendly relations among nations, irrespective of their differing constitutional and social systems;

Realizing that the purpose of such immunities and privileges is to ensure the efficient performance of the functions of diplomatic missions and not for the personal benefit of the members of such missions;

Realizing that the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States; Affirming that the rules of customary international law should continue to govern questions not expressly regulated by the provisions of the present Convention,

Have agreed on the following provisions:

Have agreed as follows:

elected chairman of the Committee of the Whole, pointed out that someone had to make a proposal to the Committee if they were to begin on a potential preamble. The result was that the delegations of Romania and later Hungary presented draft texts. Even though those drafts were written in a tactful and restrained way, they gave the impression of combining a restatement of the

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principle of peaceful coexistence with potentially controversial concepts of diplomatic immunities and privileges, which were of minor importance for a preamble.52 In response, the US delegation (in cooperation with Brazil, Colombia, Japan, Mexico, Nigeria, Norway, Pakistan, Senegal, Spain, Turkey and the United Kingdom) submitted a compromise proposal which aimed to water down the ideologically coloured proposals by Hungary and Romania. It did, however, include the Hungarian contention that states should develop peaceful and friendly relations ‘irrespective of their divergencies’.53 However, the proposal was superseded by two broader proposals from Ghana and from Burma, Ceylon, India, Indonesia and the UAR. As the latter, ‘five power proposal’, received broad support, the United States and its co-sponsors withdrew their draft. With two, important amendments, the ‘five power proposal’ provided the basis for the final preamble. Of the three theoretical bases that had been historically used to justify diplomatic immunities and privileges, only one was emphasized in the four-power proposal.54 This was the functional necessity theory as expressed in the phrase that diplomatic privileges and immunities are granted ‘to ensure the efficient performance of the functions of diplomatic missions [and not for the personal benefit of the members of such missions]’. However, before the preamble came to its final vote, the Soviet delegate, Grigorii Tunkin, said the functional theory was not the sole justification for privileges and immunities. The representative character of the head of mission and mission premises were also relevant in justifying diplomatic prerogatives. Accordingly, and in order to give expression to the representative character theory, he proposed an oral amendment adding the words ‘as representatives of states’.55 Although some delegations opposed to Tunkin’s oral amendment, saying that the additional words were unnecessary (the Indian delegate) or would put all the emphasis on

One draft included the ‘principle of equal rights and self-determinations of peoples’. Canadian delegation report. 53 Ibid. 54 The three principles are extra-territoriality, representative character and functional necessity theory. The first considers the premises of a mission not as property of the receiving but of the sending state. The representative character principle justifies immunities and privileges to diplomats as they are direct representatives of the sending country. Finally, the functional necessity theory argues that diplomats need those privileges and immunities in order to fulfil their tasks efficiently. 55 Originally it had also been discussed to include an article to this effect in the Convention itself. However, in order to avoid misunderstandings, it was felt that this theoretical aspect should not be included in the body of the Convention but in the preamble. See Irish delegation report. 52

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the representative character and in effect discard the functional necessity theory (the Irish delegate), the amendment was adopted by 39 votes to 5, but with 23 abstaining from the vote. In another successful oral amendment on the same paragraph, the Australian delegation quite unexpectedly forced a separate vote on what its head of delegation, John Kevin, called the last ‘12 ugly words’56 of the sentence, that is, those referring to functional necessity.57 It is not known why the Australians objected to the reminder that diplomatic privileges and immunities were ‘not to benefit individuals’, but in the fourth Plenary meeting when the matter was discussed anew, the UK delegate re-introduced the wording. In so doing, Vallat said it was important to make clear that the Conference had not met to create privileges for the benefit of members of the diplomatic staff, and to say so explicitly in order to forestall reactions from parliaments and public opinion.58

His reasoning found general support and was eventually adopted by the Plenary with 68 votes to none, with 4 abstentions. The second important amendment to the preamble was made by the Swiss delegation. This was the incorporation of a paragraph stating that the rules of customary international law shall continue to govern questions that are not explicitly regulated by the Vienna Convention. Despite the resistance of some delegations who considered this statement redundant, the majority were in favour of the amendment and on a number of occasions delegates referred to the non-exhaustive nature of the Convention they were drafting. Although the preamble as a whole was unanimously adopted in Plenary, many Western delegations had problems accepting the inclusion in the third paragraph of the phrase ‘irrespective of their differing constitutional and social system’. However, they accepted it since the Eastern bloc dropped its original plan of including a provision of this nature in Article 2 of the Convention. This kind of concession was a smooth move for both sides. The wording in question was: ‘and not for the personal benefit of the members of such missions’. 57 ‘[. . .]and not for the personal benefit of the members of such missions’. The oral amendment was adopted by the Committee of the Whole by a vote of 35 to 19 with 18 abstentions. 58 Vallat during the fourth Plenary meeting, p. 7. It might be pointed to the short daily express article (Privilege’s Army, 27 February 1961) discussed at the beginning of the chapter in which it was assumed that delegations met in order to extent diplomatic immunities to chauffeurs and chefs. Ibid. 56

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While the Eastern bloc had its political reference included in the Convention, the Western bloc could argue that the preamble was, legally speaking, not a binding part of the Convention and avoided argumentation about the issue being included in Article 2.

Final clauses The final clauses span Articles 48‒53 and had debated in both Committee and Plenary (Table 5.4). The ILC had not included any final clauses as it considered them a political matter, it being for the Conference to determine the modes of accession and when and where the documents should be deposited. The main questions arising concerned Article 48 which identified the depository power of the Convention and Article 50 which defined the group of states entitled to adhere to the Convention. A third item included in the final clauses, concerning reservations, was not seriously examined by the Conference. The first proposal for an accession clause came from Poland and Czechoslovakia. They suggested a universal accession formula whereby any state (not just members of the United Nations, its Specialized Agencies or the ICJ) could sign, ratify and accede to the Convention. The Poles and Czechs also recommended Austria as depository power. At a press Conference, they claimed that their choice of Austria was a fitting gesture of recognition for Austria’s hospitality and a reminder of Vienna’s historical role in the field of regulating diplomatic intercourse. This, however, did not convince the majority of delegations. The Western Europeans in particular suspected the move was politically motivated and aimed at diminishing the authority of the United Nations and its role as depository power. Austria, meanwhile, scrambled to accept the honour of accepting the role of depository power, without first looking at the possible political consequences. When it did, it sought advice and assistance from the Western European group. The United States suggested sponsoring a counter-proposal to protect the role of the Secretary-General of the United Nations and also to avoid an open formula for universal accessions. These took the shape of a set of final clauses based on those found in the 1958 Geneva Convention on the Law of the Sea: the Secretary-General would act as depository power, and adhesion was restricted members of the UN or its Specialized Agencies, and members of the ICJ. Additionally, the proposal left room for compromise with the Soviet bloc by stating that the UN General Assembly could issue invitations to non-members to accede to the Convention. The US proposal also suggested that the venue be mentioned

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Table 5.4  Final clauses VCDR final clauses Article 48 The present Convention shall be open for signature by all States Members of the United Nations or of any of the specialized agencies Parties to the Statute of the International Court of Justice, and by any other State invited by the General Assembly of the United Nations to become a Party to the Convention, as follows: until 31 October 1961 at the Federal Ministry for Foreign Affairs of Austria and subsequently, until 31 March 1962, at the United Nations Headquarters in New York. Article 49 The present Convention is subject to ratification. The instruments of ratification shall be deposited with the Secretary-General of the United Nations. Article 50 The present Convention shall remain open for accession by any State belonging to any of the four categories mentioned in article 48. The instruments of accession shall be deposited with the Secretary-General of the United Nations. Article 51 1. The present Convention shall enter into force on the thirtieth day following the date of deposit of the twenty-second instrument of ratification or accession with the Secretary-General of the United Nations. 2. For each State ratifying or acceding to the Convention after the deposit of the twenty-second instrument of ratification or accession, the Convention shall enter into force on the thirtieth day after deposit by such State of its instrument of ratification or accession. Article 52 The Secretary-General of the United Nations shall inform all States belonging to any of the four categories mentioned in article 48: (a) Of signatures to the present Convention and of the deposit of instruments of ratification or accession, in accordance with articles 48, 49 and 50; (b) Of the date on which the present Convention will enter into force, in accordance with article 51. Article 53 The original of the present Convention, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations, who shall send certified copies thereof to all States belonging to any of the four categories mentioned in article 48.

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in the title of the Convention in order to honour the Austrian government’s part in organizing the Conference. Although the Austrian delegation officially agreed to this compromise, the US proposal was subject to a further amendment by Iran and a subamendment by the Netherlands. The Dutch proposal specified the place and time of signature of the Convention and the subsidiary protocols (for the next six months in Vienna and then at the UN headquarters in New York until 31 March 1962). Furthermore, Ireland and Sweden had recommended that the Final Act of the Conference, as distinct to the Convention, should be permanently deposited with the Government of Austria. It was so agreed. The Western delegations convinced the Conference to vote first on the US proposal regarding signing and depositing the Convention. This meant a considerable disadvantage for the Polish and Czech proposition. Remarkably, although the Soviet bloc obviously had accepted their defeat in advance, the Afro-Asians fought vigorously against the limitation on universality. During a Committee of the Whole meeting, India tried to force a separate vote on the wording in Articles 48 and 50 but she and her allies encountered massive US opposition. Although the United States had lost out on several votes throughout the Conference, her delegation came on strong during the debate on the final clauses and used its political influence to organize a blocking majority to prevent a separate vote on the categories of states that could adhere to the Convention (Article 50, first sentence). A reverse situation came up in the Plenary voting. Threatened by a blocking third of Afro-Asian and Soviet bloc delegations, the United States let it be known privately to the Canadians that if universality of accession were permitted, the United States would consider defeating the final Articles and with it the entire Convention.59 Fortunately for the fate of the Vienna Convention, and in keeping with the general character of the negotiations, in the Committee of the Whole the Afro-Asian and Soviet delegations did not organize for a blocking third but stepped back in order to let the final clauses slip through as they stood and to save their work of the past six weeks.60 As a result, the final clauses passed the Committee and Plenary voting and the United States achieved its three main objectives: to maintain the position of the Secretary-General as depository of UN conventions; to keep not recognized states such as East Germany and Outer Mongolia Canadian delegation report. Similarly, on the negotiations of Article 16 on precedence of the heads of mission the Afro-Asian and Soviet bloc could have mobilized enough support to block a Holy See amendment on the precedence of Papal representatives. Ibid., p. 32.

59

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sidelined in this Convention and, lastly, to acknowledge the Austrian efforts in hosting the Vienna Conference.

Unbalanced reciprocity, when rules seemed to carry one-sided benefits The last category of disputes arising during the Conference derived from an unbalanced reciprocity, or at least when codification seemed to benefit mainly the more powerful states. On several occasions the South saw the balance of reciprocity disturbed, either because they were materially disadvantaged vis-à-vis the North (most prominently in respect of Article 27, the diplomatic wireless) or because it differed from the North in its interpretation of the functional need to protect its personnel abroad. For example, great powers with bigger diplomatic missions tended to look favourably on provisions that protected diplomats abroad while smaller powers were keen to protect themselves from outside interference.61 Indeed, it was these differences that produced the most controversial incidents of the Vienna Conference (Table 5.5). The negotiation of Article 27 proved to be one of the longest and most controversial of the Conference. Debate stretched over four Conference days and meetings in the Committee of the Whole, including two adjournments.62 The intensity of debates reflected not only the importance of the principle but also the extent of differences in interpreting what was meant by freedom of communication. Unlike the discussion on Article 22, where the Conference reiterated the unrestricted inviolability of mission premises, it could not agree on an unlimited freedom of communication. The debate over paragraph 1 in particular was one of the longest and most controversial of the Conference. The problem here was that the representatives of the great powers took a progressive approach on the question of diplomatic wireless, while smaller or poorer states, including even ‘fairly important’ ones such as Japan and India, had a more retrograde one.63 On the one hand, the latter group was suspicious This was mainly because bigger states tend to maintain more extensive missions abroad than smaller states which often limit the size of their missions to a couple of people only. 62 Debate took place between 21 and 24 March 1961. The Committee of the Whole debated the Article on its 24th–26th meeting, and after an adjournment took the issue up again at its 29th meeting. The Articles were finally adopted during the sixth meeting of the Plenary on 11 April 1961. 63 Fitzmaurice, minute, paragraph 9, TNA, FO372/7515. 61

Table 5.5  Freedom of communication VCDR Article 27

1. The receiving State shall permit and protect free communication on the part of the mission for all official purposes. In communicating with the Government and the other missions and consulates of the sending State, wherever situated, the mission may employ all appropriate means, including diplomatic couriers and messages in code or cipher. 2. The official correspondence of the mission shall be inviolable. 3. The diplomatic bag shall not be opened or detained. 4. The diplomatic bag, which must bear visible external marks of its character, may only contain diplomatic documents or articles intended for official use. 5. The diplomatic courier shall be protected by the receiving State. He shall enjoy personal inviolability and shall not be liable to any form of arrest or detention.

1. The receiving State shall permit and protect free communication on the part of the mission for all official purposes. In communicating with the Government and the other missions and consulates of the sending State, wherever situated, the mission may employ all appropriate means, including diplomatic couriers and messages in code or cipher. However, the mission may install and use a wireless transmitter only with the consent of the receiving State. 2. The official correspondence of the mission shall be inviolable. Official correspondence means all correspondence relating to the mission and its functions. 3. The diplomatic bag shall not be opened or detained. 4. The packages constituting the diplomatic bag must bear visible external marks of their character and may contain only diplomatic documents or articles intended for official use.

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5. The diplomatic courier, who shall be provided with an official document indicating his status and the number of packages constituting the diplomatic bag, shall be protected by the receiving State in the performance of his functions. He shall enjoy person inviolability and shall not be liable to any form of arrest or detention. 6. The sending State or the mission may designate diplomatic couriers ad hoc. In such cases the provisions of paragraph 5 of this article shall also apply, except that the immunities therein mentioned shall cease to apply when such a courier has delivered to the consignee the diplomatic bag in his charge. 7. A diplomatic bag may be entrusted to the captain of a commercial aircraft scheduled to land at an authorized port of entry. He shall be provided with an official document indicating the number of packages constituting the bag but he shall not be considered to be a diplomatic courier. The mission may send one of its members to take possession of the diplomatic bag directly and freely from the captain of the aircraft.

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about the great potential for abuse of radio transmitters, its value to Secret Service operations being well known. On the other hand, those states which could not afford such expensive technology nor had the means to overcome technical difficulties due to distance or inferior equipment outnumbered those few states which could. Hence, permitting freedom of use of radio transmitters would disturb the balance of reciprocity in favour of the richer, technologically advanced powers, and the small states deemed it only to be in the interests of the great powers. This unbalanced situation became even more obvious, taking into consideration that the United States made heavily usage of diplomatic wireless abroad but, in the reverse, did not grant permission for their use within their territories. Next to this all overshadowing discussion, also another smaller but for its constellation eye-catching debate arose during the negotiation of Article  27. In contrast to the situation in paragraph 1 in which greater states (mainly the Soviet Union, the United Kingdom and, although to a lesser degree, the US delegation) sided to defend the ILC draft against attempts by smaller states to introduce limitations (in order to prevent abuses) on the usage of diplomatic wireless stations, on paragraphs 3 and 4 these great powers were divided. In contrast to the discussions over Article 22, when the great powers especially lobbied for the absolute inviolability of mission premises, this time they were divided and it was the United States rather than any smaller state that introduced a corresponding amendment. Although the Article drafted by ILC did not contain any provision regarding the use of a diplomatic transmitter station, with or without the consent of the receiving state, this was discussed in an ILC’s accompanying commentary. According to the commentary, states wishing to use a private transmitter had to do so in accordance with existing international conventions on telecommunications and needed the special permission of the receiving state. This provided the opening for a joint amendment introduced by Argentina, India, Indonesia, Mexico, United Arab Republic and Venezuela (the ‘six power’ amendment). It formed the basis for further discussions between what had emerged as two opposing sides: the great powers on the one side and the Latin American, African and most of the Asian countries on the other side. As one of the co-sponsors of the amendment, the Indian delegate started his well-prepared argument by pointing out that using a wireless transmitter was not a functional necessity, the principle on which the Conference worked. Furthermore, there were certain international regulations, most prominently the 1947 Atlantic City International Telecommunication Convention, providing that the permission of the local authority

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should be obtained before installing a radio transmitter. It would lead to chaos, he warned, if the majority of missions went on air without observing local laws. Additionally, only a minority of states (including the United Kingdom) did not require permission to be granted for the use of transmitters whereas most countries did. These included France, the Netherlands, the Federal Republic of Germany, Australia, Canada, the United States and Brazil. Finally, the Indian delegate spoke of global public mistrust against diplomatic radio transmitters being misused for propaganda purposes. The ‘six power’ amendment was neither acceptable to the Soviets nor leading Western delegations such as the United Kingdom. The latter countered the Indian’s arguments by reference to the progressive spirit in which the Convention was being negotiated. According to the British, the proposed amendment seemed likely to impede the performance of the mission’s function, while the aim of the Convention was to facilitate it. In the early 1960s, wireless transmitters were one of the most efficient means of communication and should be considered as an ‘appropriate’ one. Therefore, he claimed, if an amendment were needed, it should go no further than to add‚ ‘wireless telegraphy’ after the words ‘code and cipher’ in paragraph 1. As regards the alleged practical problems mentioned by the Indian delegate, no interference had yet occurred via the internal communication of missions. Furthermore, any case of abuse could be treated according to normal practice, by expelling the head of mission. The British delegate Vallat concluded his speech challenging the applicability of the International Telecommunication Convention: legally speaking, a mission is neither ‘a person’ nor ‘an enterprise’ and therefore it is not subject to the provisions of that Convention. Although the United Kingdom had impressively defended its position (and that of the great powers), the majority of the delegations still supported the joint amendment. The discussion was deferred to the next session but even after it resumed, there was still deadlock. Most delegations stood firm against unlimited freedom of use of wireless transmitters by missions. During the 26th meeting of the Committee of the Whole, on suggestion of the Spanish delegations negotiation was eventually adjourned. Three meetings and one and a half days later, when the Committee resumed negotiations on its 29th meeting, the United Kingdom introduced an amendment. In line with his remarks a few days earlier, Vallat proposed restricting the use of radio transmitters to telegraphic communications but the consent of the receiving state should not be a prerequisite. This amendment, meant as a compromise solution, only increased opposition to the UK position. As a member of the UK delegation observed, ‘almost the entire world seems to

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take a contrary view to our own’.64 In order to put some pressure on the ‘six power’ amendment sponsored by Argentina, India, Indonesia, Mexico, the UAR and Venezuela, Vallat requested an open (roll-call) vote. Eventually, although four of the five great powers (France, the Soviet Union, the United Kingdom and the United States) voted against the amendments (China (Taiwan) abstained), it was adopted by a vote of 41 in favour, 20 against and 9 abstentions. In the two weeks between debate in the Committee of the Whole and the final adoption of the Article in Plenary, there were a lot of lobbying going on to try to calm the situation and convince the Indians and their co-sponsors to change their view. These attempts were fruitless; it became clear that unless the principle of consent was accepted by Britain and those who shared her views, no compromise would be in view. Eventually, the British offered that consent could only be achieved if the phrase ‘and after obtaining authorization in accordance with the laws of the receiving state and international regulations’ was deleted. Vallat stated that this was vital in the view of Her Majesty’s Government and he had instructions to stay firm on this point. There seemed enough support for such a compromise and, as a result, India combined with 13 other delegations to co-sponsor an amendment to the text approved in Committee, leaving out the controversial passage. Although the British abstained from vote, the spirit of conciliation was discernable and even the Ghanaian withdrew his initial request for a roll-call vote on the new ‘thirteen-Power amendment’. The amendment was adopted by 57 in favour to 1 against, with 12 delegations abstaining and the paragraph as a whole by a vote of 65 in favour with 6 against. The second major sticking point on Article 27 arose in respect of paragraphs 3 and 4. Although paragraph 4 remained unchanged and paragraph 3 was only modestly changed, these paragraphs gave rise to considerable discussion in the Committee of the Whole. A number of amendments had been proposed which, in varying degrees, sought to limit the inviolability of the diplomatic bag or, at least, its free passage when there was reason to suspect abuse. Remarkably, it was not the smaller states (which normally had a keen interest in the strengthening of the position of the receiving state) but the United States which proposed that the diplomatic bag could be refused entry if a diplomatic mission refused to permit inspection. Most other amendments did not go this far. One amendment was introduced by the British, taking up a previously withdrawn UAR amendment, to permit the receiving state to request the withdrawal of a diplomatic bag, ‘where serious doubts exist as to the Lush (UK delegation, Vienna) to Malcolm (FO), 21 March 1961, TNA, FO372/7575.

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legality of its contents’. Meanwhile, the French and the Swiss introduced a joint amendment whereby the inviolability of the bag would depend on whether its contents were what they should be, documents or articles of an official nature necessary for the performance of the mission. However, all the amendments were either withdrawn or failed to secure a majority. Paragraphs 3 and 4 remained as they were and were adopted in Plenary without a vote.65

A bone of contention: Privileges and immunities of non-diplomatic staff Article 37 on the persons entitled to privileges and immunities is a vital part of the Vienna Convention but reaching compromise on it was hard work. Highlights of the negotiations, spurred by the submission of 43 amendments in the Committee of the Whole, this Article attracted not only the most amendments, but its negotiation history reads almost like a novel: a voted down ILC draft paragraph 2 with no potential amendment in sight which would carry the necessary two-thirds majority in Plenary, a challenged President’s decision in the Plenary and three roll-call votes during the negotiation rounds. Put in other words: the Conference faced failure because delegations could not agree on the extent of privileges and immunities of administrative and technical staff, a category of staff comprising the biggest share of staff of the diplomatic mission. No agreement on this point would have left it to customary law to decide on the extent of privileges and immunities which would have been a considerable flaw in the Convention. Divergence of state practice was at the root of all the problems, and also, in contrast to the line the ILC had taken in drafting most of the other Articles, it had acted with ‘unexpected boldness’66 in producing draft Article 36. In so doing, it had departed from diplomatic realities and failed to take into account the comments that governments had submitted to it. When the ILC prepared the draft text, it was general practice to grant members of the mission with diplomatic status the same diplomatic immunities and privileges as the Head of mission. However, there was 65

Canadian delegation report, p. 45. Introducing the amendment of Libya, Morocco and Tunisia, Bouziri of Tunisia showed himself surprised about the ‘unexpected boldness’ of the International Law Commission draft Article 36. He stressed that the Article was not acceptable and that it went far beyond the limits of the accepted rules of international law regarding diplomatic privileges and immunities.

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no uniform diplomatic practice as regards mission staff who were not engaged in diplomatic work. State practice differed widely  – not only in respect of the categories of staff which enjoyed diplomatic immunities but also as regards the extent to which those persons were entitled to privileges and immunities. The question for the ILC had been to decide whether to work on the ‘principle of a bare minimum’,67 leaving the rest to bilateral agreements, or to try to establish a general and uniform rule based on what the ILC considered necessary and reasonable. The Commission opted for the latter course and, in so doing, took a progressive stance.68 It created a text which granted complete privileges and immunities to administrative and technical staff and gave the service staffs immunity in relation to their acts as well as some tax exemptions on their salaries. This reflected the Commission’s decision during its 1957 session to see the function of a mission as an ‘organic whole’,69 and not to focus on the work rendered by individuals. Although this was criticized by some governments, the ILC did not change the text of its final draft which continued to stipulate complete privileges and immunities for administrative and technical staff (Table 5.6). At Vienna the Committee of the Whole began discussing Article 37 at its 32nd meeting during the fourth Conference week. The 43 amendments that had been tabled showed the Article’s potential for controversy and states’ deep disappointment with the ILC draft.70 Thanks to numerous interventions, the debate got off to a confusing start. From there it went downhill because of the severe difficulties it faced in trying to define the circle of people enjoying full diplomatic immunity. The first problem was defining what a family was in paragraph 1. European and Latin American states had differing interpretations of the circle of direct family members, but there was a yawning gap between them and the Afro-Asians. Further difficulties arose in defining what was a ‘minor’ and ‘dependent on’, which had different legal meanings in different legal systems. United Nations Secretariat, Codification Division, Office of Legal Affairs, YBILC 1958, Volume II: Documents of the tenth session including the report of the Commission to the General Assembly (New York: United Nations, 1958)  (YBILC (1958) vol. II), Article 36, paragraph 4, p. 101. 68 Alternatively, the ILC discussed to grant only functional immunities to administrative and technical staff and let the remaining details to be decided by the receiving state. 69 YBILC (1958 vol. II), Article 36, paragraph 4, p. 101. 70 Next to the Tunisian delegate, other very critical words came from the Italian delegate who reminded that the Conference was to codify but not progressively develop international law. VCDR summary records, paragraph 20, p. 194. 67

Table 5.6  Persons entitled to privileges and immunities VCDR Article 37

1. Apart from diplomatic agents, the members of the family of a diplomatic agent forming part of his household, and likewise the administrative and technical staff of a mission, together with the members of their families forming part of their respective households, shall, if they are not nationals of the receiving State, enjoy the privileges and immunities specified in Articles 27‒34. 2. Members of the service staff of the mission who are not nationals of the receiving State shall enjoy immunity in respect of acts performed in the course of their duties, and exemption from dues and taxes on the emoluments they receive by reason of their employment. 3. Private servants of the head or members of the mission shall, if they are not nationals of the receiving State, be exempt from dues and taxes on the emoluments they receive by reason of their employment. In other respects, they may enjoy privileges and immunities only to the extent admitted by the receiving State. However, the receiving State must exercise its jurisdiction over such persons in such a manner as not to interfere unduly with the conduct of the business of the mission.

1. The members of the family of a diplomatic agent forming part of his household shall, if they are not nationals of the receiving State, enjoy the privileges and immunities specified in Articles 29–36. 2. 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 the privileges and immunities specified in Articles 29–35, except that the immunity from civil and administrative jurisdiction of the receiving State specified in paragraph 1 of Article 31 shall not extend to acts performed outside the course of their duties. They shall also enjoy the privileges specified in Article 36, paragraph 1, in respect of Articles imported at the time of first installation. 3. Members of the service staff of the mission who are not nationals of or permanently resident in the receiving State shall enjoy immunity in respect of acts performed in the course of their duties, exemption from dues and taxes on the emoluments they receive by reason of their employment and the exemption contained in Article 33. 4. Private servants of members of the mission shall, if they are not nationals of or permanently resident in the receiving State, be exempt from dues and taxes on the emoluments they receive by reason of their employment. In other respects, they may enjoy privileges and immunities only to the extent admitted by the receiving State. However, the receiving State must exercise its jurisdiction over those persons in such a manner as not to interfere unduly with the performance of the functions of the mission.

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Second, and much harder, was the problem of deciding the extent to which non-diplomatic staff of a mission should enjoy diplomatic privileges and immunities. The second paragraph of the ILC draft, which attracted 24 amendments, provided for full immunity but the Conference was divided as to whether this was the right decision. On the one hand, there was a camp (which included the Canadians, British, Soviets and Americans) who wanted to grant complete immunity to administrative and technical staff and, on the other hand, there was another camp (which included France, Italy and Switzerland) who attached great importance to restricting the privileges and immunities of administrative and technical staff mainly to official acts.71 In private talks with British and Canadian delegates, but also later in Committee, the French indicated that their amendment was essential in order effectively to deal with such officials in many capitals. Particularly in Paris thousands of minor technical personnel of diplomatic missions as well as of international organizations, such as United Nations Educational, Scientific and Cultural Organization (UNESCO), were granted traditionally the same immunities as their peers in the diplomatic service. The chief British delegate, Vallat, was well aware of the pressure to reduce the number of people enjoying diplomatic immunities and privileges, especially in major metropolis like Paris or London. However, he stood firm on British policy (and his instructions) which maintained that the work of personal assistants, ciphers and all other allegedly minor categories of staff were as vital as to the functioning of the mission and as confidential as to that of most diplomats. Furthermore, the British government was not prepared to hand over mission staff to foreign jurisdiction and measures of execution and, hence, Vallat rejected the French amendment. Libya, Morocco and Tunisia submitted a more extreme joint amendment on paragraph 2 seeking to omit any reference to the immunity of nondiplomatic staff. But because such an extreme position was not sufficiently supported by many other delegations, the sponsors revised the amendment later on making it more appealing to a wider circle of delegations. The revised amendment was to grant immunity in respect of official acts only and limited privileges to tax exemptions on official salary. There were

71

All these states host a variety of major international organizations in their capital cities: Paris (UNESCO, Organisation for European Economic Co-operation (OEEC), International Chamber of Commerce); Rome (Holy See, Food and Agricultural Organization (FAO), European Economic Community (EEC)); and although Geneva is not even the capital city, this relatively small state is inter alia home to the European seat of the United Nations, Red Cross and the International Telecommunication Union (ITU).

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also a couple of more moderate amendments (Denmark, Sweden, Brazil, Australia and a joint amendment of Burma, Malaya and Ceylon) but all of which could not be agreed on to take the place of paragraph 2, or at least amending it adequately enough. The only successful amendment introduced on paragraph 2 in Committee was submitted by the Canadian delegation. In essence, the amendment aimed to restrict the tax privileges of non-diplomatic staff to ‘first arrival’ privileges. That is, the exemption from customs duties and taxes granted in respect of personal and household goods on first arriving in a post.72 As part of the Canadian amendment, changes were introduced also to paragraphs 3 and 4 which included permanent residents and placed them, immunity-wise, on the same footing as nationals of the receiving state, namely excluding them from immunities. However, amending paragraphs 3 and 4 as suggested by the Canadians was too much for some delegations. Furthermore, the Tunisians complained that the chairman had put the Canadian amendment too quickly to the vote. Consequently, the whole of Article 37 was submitted to a roll-call vote. Despite an atmosphere of ‘some hostility’, as the Canadians put it, the Article won broad support, being adopted by 54 votes to 10 against, with 7 abstaining. While France abstained from voting, some delegations which had voted against the Article, particularly Tunisia, Saudi Arabia and the UAR, were not satisfied with the result, so it was quite obvious that the debate would transfer into the Plenary. The Plenary took up Article 37 during its ninth meeting on the second last day of the Conference. However, what had been unspoken by the Canadians and suspected by many delegations should become reality. So severe were the disagreements that the discussion spilled over into the final day, and Article 37 became the last to be adopted before the final vote on the Vienna Convention as a whole. In what the Polish delegate described as an ‘unprecedented situation’,73 two new amendments were tabled in the Plenary and opened the discussion on the Article anew. One amendment was sponsored by Tunisia, Libya and Morocco and another so-called ‘nineteen power’ amendment sponsored by the delegations of France, Italy and Switzerland. While both amendments sought to limit considerably the immunities of technical and administrative staff, the Tunisian‒Libyan‒Moroccan restricted them to staff performing ‘confidential duties’. This would have had the advantage of excluding from full immunity The amendment was carried by a majority of 47 to 7 with 13 abstentions of the delegations present and voting. Canadian delegation report. 73 VCDR summary records, paragraph 51, p. 33. 72

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any staff whose work had a clear technical function. However, its lofty formulation offered much room for criticism. ‘Confidential duties’ was a vague concept and not a generally defined term. Nor was it included in the definitions set out in Article 1 of the Convention. The second, ‘nineteen power’ amendment, which had an impressive number of sponsors and the support of most of the continental European, and many Arab and Latin American delegations, would have granted immunity from jurisdiction to administrative and technical staff in the course of their official functions. But this amendment, too, appeared to go too far in exposing them and looked unlikely to gain the necessary twothirds majority. In private discussions, the French delegation revealed that they did not expect their amendment to win the necessary two-thirds majority. As an alternative solution, it considered organizing at least a blocking third in Plenary, in order to avoid the adoption of paragraph 2 as it stood. This way the controversial issue would be cut off the Convention leaving the regulation of immunities for administrative and technical staff to customary international law.74 However, Vallat warned against any hasty rejection of the work of the ILC. By persuading the assembled delegations in Plenary of the sound deliberations of the ILC on Article 37, he tried to break the deadlock introducing a compromise text by an oral amendment to paragraph 2 of the ILC draft. This amendment limited immunities of administrative and technical staff to immunity only in civil matters but retained all other immunities as specified in paragraph 1 of Article 31, providing for immunity from criminal jurisdiction of the receiving state and immunities from its civil and administrative jurisdiction. After a two-hour postponement and only at the end of the afternoon meeting of the second last Conference day, the discussion on Article 37, paragraph 2 resumed. This had left little time for delegations thoroughly to study the implications of Vallat’s oral amendment, let alone to get new instructions from their foreign offices. Therefore, and partly because some Asian delegations had been surprised and, the Canadians speculated, even offended for not being consulted in advance, the UK amendment remained disputed. In the final vote, the ‘nineteen power’ amendment was taken first. Although it could count on the support of the majority of ‘delegations present and voting’, it had no hope of the necessary two-thirds majority and was rejected by a vote of 37 in favour, 29 against and 7 abstentions.75 74

VCDR summary records, paragraph 44, p. 34. Not always all delegations were present or participated in the voting, which explains the different overall number of ‘delegations present and voting’.

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Next, the Conference voted on the amendment of Tunisia, Libya and Morocco, which clearly failed to obtain the necessary two-thirds majority losing by 38 votes to 18 with 15 abstentions. So did the British amendment, by 41 to 24 with 12 abstentions. No amendment having won the requisite two-thirds majority, the Plenary turned to paragraph 2 of the ILC draft. Once more there was no two-thirds majority, the vote being 39 in favour to 23 against with 16 abstentions. In other words, the Conference had voted down anything what came across for a decision and in effect had decided it could not agree on this matter, with the consequence that the final Convention would be incomplete. That being so, custom would remain the guide for this pivotal aspect of diplomatic privileges and immunities. However, Vallat took the lead and introduced a procedural motion asking for a reopening of debate on paragraph 2, and, if necessary, that the debate be adjourned to the next, final day of the Conference.76 Most delegations were aware that, in failing to agree on the second paragraph of the ILC’s draft Article 36, the Conference was on the verge of committing a major mistake; it would probably have made the Convention unacceptable to a large number of governments.77 Vallat’s suggestion was welcomed by the Plenary and the debate was actually postponed to the very last meeting of the Plenary. Delegations used the time until the afternoon meeting to agree on possible solutions. Having taken the lead, the British proposed the rather lofty exemption of ‘administrative immunity’ which it took from an oral amendment introduced by the Spanish delegation. In doing so, Vallat hoped to gain the support of the Latin American delegations. Unlike earlier when Vallat shoot ahead without prior consultation with friendly delegations, this time the United Kingdom obtained nine co-sponsors to introduce an amendment (the ‘ten-power amendment’) in the final Plenary.78 This ‘ten power’ amendment, which was the outcome of numerous consultations, represented a considerable effort of reconciling differing views. Delegations now had to decide whether to adopt the ‘ten power’ amendment’ or a new, Tunisian‒Libyan‒Moroccan amendment along the same lines as their earlier amendment. President Verdross The motion for reopening of debate, despite some critical voices, was carried by an overwhelming majority of 60 votes to 10, with 6 abstentions. 77 Very few exceptions were, for instance, Bouziri of Tunisia who thought it regrettable but expected rules of customary law to regulate the issue (as stated in the preamble) while Carmona (Venezuela) and de Erice y O’Shea plainly rejected the procedure to reopen discussion. 78 Belgium, Ceylon, Federal Republic of Germany, Ghana, India, Federation of Malaya, the Netherlands, Nigeria, United Kingdom and United States. 76

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first put the Tunisian‒Libyan‒Moroccan amendment to a vote, and at the request of Tunisia, the voting was by roll-call. Having drawn the lot to vote first, Senegal proclaimed itself in favour of the amendment. However, only 11 other delegations followed suit and the amendment was rejected.79 As the negotiations reached their climax, some delegates’ nerves were obviously on edge, which resulted in an unnecessary appeal for a procedural decision by President Verdross. When Vedross called for a vote on the ‘ten-nation amendment’, the Senegalese delegate interrupted and put in a procedural motion in order to amend the ‘ten-nation amendment’. Verdross, who interpreted the voting on the two amendments as part of a single process, said that, under rule 22 of the rules of procedure, the motion was out of order because voting had already started. His ruling was challenged by the French delegate, Vaucelles, who pointed out that voting had to take place on each amendment individually. The Conference then voted on and overturned the President’s ruling by a simple majority. But Senegal gained nothing. The vote which then took place on the Senegalese oral sub-amendment to the ‘ten-nation amendment’ was heavily defeated by 46 votes to 13 with 14 abstentions. Eventually, the Conference came to vote on the ‘ten-nation amendment’ by a roll-call vote. Because 76 delegations took part in this last vote, 51 votes were needed for the amendment to pass. This time the Ukrainian Socialist Republic voted first. It very quickly became clear that the amendment had a good chance of being passed. It did. The final result was very tight, with 52 votes in favour and 7 against with 17 abstentions. However, what mattered was that the necessary two-thirds majority had been achieved and a vital amendment to paragraph 2 had been finally adopted. Finally, the Conference voted on Article 37 as a whole. It was adopted by 61 votes to 5, with 7 abstentions. The dissidents included the North African sponsors of the ‘three-power’ amendment, Senegal, and Saudi Arabia who had constantly voted against the Article. When, a little later, the Conference adopted the Vienna Convention on Diplomatic Relations as a whole, Tunisia was the only delegation that abstained from voting in an otherwise unanimous final confirmation of the successful work of the Vienna Conference.

79

Final vote on the amendment was 12 votes in favour with 45 votes against and 17 abstentions.

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Conclusion The Cold War influenced the negotiations of the Vienna Convention, but not in the way the media (and some delegations) had expected. The media expected that the Conference would be another battlefield for Cold War issues. However, these were largely avoided and only arose on a few points, such as the preamble and the accession and depository provisions included in the final clauses. On substantive issues, the impact of the Cold War was limited. Indeed, as underlined by several authors, the Conference was remarkably free from East‒West disputes. Contrary to expectations, it was not the discussions on the right of legation, size of missions and freedom of movement that caused problems. It was disputes between the political North and South on diplomatic transmitters and extending diplomatic privileges to administrative and technical staff that caused temporary turbulence. Meanwhile, the Conference was working along geo-political lines. This was not unusual for multilateral conference diplomacy practised at that time. What was new was that for the first time the Afro-Asian bloc was in the majority of attendees, reflecting the process of decolonization and, with it, the enlargement of UN membership. In Vienna, 29 out of the 81 delegations could be counted as members of the Afro-Asian bloc, so if it were united it could constitute a blocking third and stop unwanted passages from being adopted in the Plenary. However, only once did the Afro-Asians come out as a homogenous group as they were too divided by differing diplomatic practices and law systems. The one exception occurred during negotiations on Article 27 (freedom of communication) when they prevailed over the major powers in making the installation of diplomatic wireless transmitters subject to the consent of the receiving state. United by a common perception of a disturbed balance of reciprocity, the highly diverse South not only organized a blocking third but also achieved a majority vote for their interpretation of reciprocity in respect of the principle of freedom of communication. The analysis of the organization and work of the Conference has shown that the Spanish delegation has been the most active in terms of amendments introduced. However, its contributions did not always have a positive impact on the final convention, leading to the last-minute extension of diplomatic inviolability to means of transportation. Similarly, ill-fated were the contributions of the US delegation. Strangely out of touch on substantive negotiations, it was outvoted on several occasions. Nonetheless, despite being unsuccessful with a number of its amendments, the US delegation was able to win on its main objectives which involved

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political aspects of the Conference, for example, securing the position of the United Nations as depository of the Conference instruments as well as keeping (in their view) dubious Soviet satellite states such as Outer Mongolia and the German Democratic Republic out of the realms of the Convention. Therefore, on this aspect, yes, the Cold War affected the negotiations. Furthermore, a good number of the 53 Articles of the final Vienna Convention dealt with controversial East‒West issues (size of mission, freedom of movement and duty to provide accommodation for diplomatic missions) on which deeper discussion had mostly been avoided. The basis on which the discussion proceeded, namely the 1958 ILC draft Articles, contained a compromise solution with which both sides of the Iron Curtain seemed satisfied. As a result, the great powers and their allies had an interest in the preservation of the ILC drafts and referred to the ‘wisdom of the ILC’ whenever awkward discussions arose. On the positive side, this avoided many time-consuming discussions and guaranteed that the Conference was able to find a suitable solution for the entirety of the draft Articles. On the negative side, however, and as some delegates pointed out, the Convention was not made for the long term but tailored for the immediate Cold War needs. Only a few delegations demonstrated awareness that the Convention should take account of the long term, and Zemanek, adviser to the Hole See delegation at Vienna, feared that some of the provisions tailored to fit the needs of a politically bipolar world would stand the test of time. Eventually, it was not the bipolarity of the international political system that caused the greatest dispute during the Vienna Conference but it was a matter of varying diplomatic practice. On Article 37 (privileges and immunities for non-diplomatic staff), to the regret of many governments, the ILC had opted for a progressive draft. As a result, Article 37 became a bone of contention and brought the Conference on the verge of failure. The final result is probably the best that could have been negotiated in so short a time and often in the absence of detailed instructions from the delegations’ respective foreign offices. Therefore, Article 37 is a compromise solution which, on the positive side, is the best solution since otherwise the extent of diplomatic privileges and immunities would have remained ruled by customary law. However, as Zemanek puts it, the result was only partly satisfactory because the solution that was reached was the most remote from functional theory which the preamble claimed to be the basis for all diplomatic privileges and immunities. Yet under Article 37, the immunity of the chancellor of the embassy, the secretarial

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staff of the ambassador or the cypher technician is more limited as that of a recently dispatched attaché who is still quite remote to be removed from more serious political decisions. Why his immunity is complete, the formers, however only partial, cannot be explained by the functional necessary theory. Bindschedler adds to this point, saying that the work of the non-diplomatic staff is often of greater importance than that of recently appointed attachés.

6

Britain and the 1961 Vienna Conference: A Hazardous Task

On 18 April 1961, the day when the United Nations Conference on Diplomatic Intercourse and Immunities (UNCDII) was about to close, The Times published a short article entitled ‘Privileges of Diplomatists, Agreement Reached on Codification’. It was based on information apparently provided by the head of the British delegation, Francis Vallat. The Article explained that the Convention settled a number of controversial points and Britain was expected to ratify ‘as soon as possible’. Among the most important points, two had caused much perturbation in the Foreign Office (FO): first, that the appointment of military attachés must be approved by the receiving country and, second, that diplomatic missions must have the consent of the receiving state for the installation of radio transmitter stations (known also as diplomatic wireless). Until 1961, Britain’s diplomatic practice had differed from the codified practices on both issues which explained why several missions, after reading the article, made enquiries with the FO. The FO explained that the article was inaccurate on several points, including that the United Kingdom had dropped its insistence on the right of the sending state to install and communicate freely via the diplomatic transmitter. Nor was it right to forecast that the United Kingdom would soon ratify the Convention: the British delegation had not even signed the Convention at the time of this article’s publication. Before doing so, there had to be consultations in Whitehall.1 Only when the relevant Departments had signalled the acceptability of the provisions of the Vienna Convention, would the United Kingdom sign. Ratification,

1

Protocol department to UK delegation to NATO (Paris), 21 April 1961, TNA, FO372/7576.

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which would confirm Britain’s adhesion to the treaty, was a different matter still and could not be expected anytime soon.2

Britain’s delegation: Composition, communication and instructions In 1960 Sir Gerald Fitzmaurice was legal adviser to the British FO and member of the International Law Commission (ILC). However, later that year at the 15th Session of the United Nations General Assembly (UNGA) he was elected to the International Court of Justice, which would necessitate all his attention.3 His election to the bench of the International Court caused a vacancy in the ILC which was filled in 1961 by Sir Humphrey Waldock, Chichele Professor of Public International Law at the University of Oxford.4 In the British FO, Fitzmaurice was replaced by his former deputy, Francis Vallat, in December 1960.5 One of the tasks that Vallat inherited from Fitzmaurice was preparations for the United Nations Conference on Diplomatic Intercourse and Immunities, which was scheduled to open on 2 March 1961, and for which he had to compose a delegation. The legal, rather than technical, nature of the subject matter in concern was the reason why the legal adviser branch to the British FO took the lead in the preparation of the British position. In what might be called a ‘gate-keeper role’, the legal advisers around Vallat coordinated the views of a number of Whitehall Departments taking charge of the creation of the official UK stance on the ILC draft Articles. Thus, it was left to Vallat to form the team. In so doing, Vallat sought Fitzmaurice’s advice and his choice came down on appointing mainly

2

3

4

5

Dugald Malcolm (head of protocol department, FO) to Anthony Lincoln (minister, British Legation Sofia), letter on The Times article of 18 April 1961, 17 May 1961, TNA, FO372/7576. Fitzmaurice was elected in a supplementary election (in contrast to the regular elections to replace a third of the seats on a triennial bases) replacing Sir Hersch Lauterpacht, who had died on 8 May 1960. Fitzmaurice received the necessary majority in the first ballot in each of the electoral bodies, the Security Council and the General Assembly. For more details, see Simpson, ‘The 1960 Elections to the International Court of Justice’, 37 BYIL, 527, 1961, pp. 527–35. Sir Humphrey (knighted in 1961)  was between 1961 and 1972 member of the International Law Commission. Taking up the position of HM’s legal adviser from Sir Gerald on 12 December 1960, this appointment traditionally carried with it the rank of Knight Commander of the Most Distinguished Order of Saint Michael and Saint George (KCMG) which Vallat was awarded in 1962, making him Sir Francis Vallat.

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legal experts rather than experienced diplomats because most practical points had been settled during ILC negotiations and it would be legal craftsmanship in revising and drafting amendments that would come in handy during the nit-picking at Vienna. In mid-February 1961, Vallat sought approval of his choices from the Secretary of State for Foreign Affairs, the Earl of Home.6 Other delegations, including the Soviet Union’s, were expected to be led by the head of the legal department of their respective ministries of external affairs, so it was no surprise that Vallat suggested himself as the head of the delegation. By contrast, it did at first sight seem surprising that he did not include Dugald Malcolm, the head of the Protocol Department since January 1961, to the Vienna delegation, but turned instead to Malcolm’s predecessor, Thomas Glasse who recently had retired. However, his substantial experience in the matters of protocol gave him the edge over Malcolm. Malcolm himself would have liked to form part of the delegation and argued that it would be useful to at least assist during the closing phase of the Conference given that he would have to help implement the Convention.7 The Deputy Under-Secretary of State and Chief Clerk of the FO, Francis Rundall, agreed and recommended that Malcolm should attend ‘the last two or three days of the Conference’.8 As a result, Malcolm was planned in as adviser for the closing days of the Conference. Next to Vallat and Glasse, the assistant legal adviser Christopher Lush became a permanent member and third legal expert of the delegation. For the lobbying at the Conference, the delegation was assisted by John Lambert of the FO research department as Secretary of the delegation and there were two FO secretarial staff – Miss Lindars (personal secretary to Vallat) and Miss Maddock – to assist the delegation in its daily tasks. In addition, Vallat agreed with the relevant Whitehall Departments that representatives of the Home Office, Treasury and the Commonwealth Relations Office (CRO) would be present when the discussions broached relevant points. While the Home Office and Treasury sent representatives for only a couple of days, that of the CRO remained with the core delegation for the first three Conference weeks and contributed significantly to the success of the UK delegation. In early 1961, the CRO was still in a state of surprise that Commonwealth issues had been neglected in the past. Both the FO and the CRO had 6 7 8

Francis Vallat (legal adviser, FO), minute, 3 January 1961, TNA, FO372/7573. Malcolm (FO), minute, 3 January 1961, TNA, FO372/7573. Francis Rundall (Deputy Under-Secretary of state, FO), minute, 12 January 1961, TNA, FO372/7573.

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failed to raise Commonwealth issues on time. At the very least the issue should have been tackled in the UK commentary on the 1958 ILC draft Articles. In January 1961, two months before the Conference was to start, the CRO representative faced the mammoth task of making the final Convention suitable for Commonwealth diplomacy more or less off the cuff. Although Pakistan and Canada had already, in 1958, spotted the need for amendments touching on Commonwealth practices and seemed a step ahead in preparations, the CRO was determined to play a leading role in organizing a shared, Commonwealth approach. Accordingly, Gerald Chadwick, an Assistant Director of the CRO, chose to nominate a political rather than a legal expert. Chadwick forwarded the name of the young political officer, George Cunningham, to lobby actively with other Commonwealth representatives.9 In so doing, Cunningham’s main task would be to ensure, not the precise wording of the amendments and new proposals, but the preservation of the special Commonwealth relationship in codified diplomatic law. While the CRO had communicated Cunningham’s name promptly, the Home Office and the Treasury hesitated to come up with names. The relevant fiscal points arose towards the end of the Convention and, with the budget due on 17 April, it was workwise ‘a particularly difficult time of the year to spare people for excursions of this sort’.10 Accordingly, it would decide only shortly in advance who to send to Vienna and when. The Home Office remained similarly uncommitted, and because only few Articles required the presence of its representative, and as it was not known yet when this would be, Glasse suggested that, in submitting the names of delegates, Britain should use a general formula that would leave the door open for additional temporary advisers without yet specifying names. Eventually, on 9 February 1961, less than a month before the Conference opened, Malcolm, in his function as head of the Protocol department, informed the United Nations of the official composition of the UK delegation. It would be headed by Vallat; Glasse and Lush would be official representatives; Lambert was the Secretary of delegation; Lindars and Maddock would provide secretarial support and they would be assisted ‘from time to time by such additional advisers as may be necessary’.11 At the time of the Vienna Conference, Cunningham was only 29 years old (born in 1931). Following his national service, George Cunningham worked at the CRO from 1956 to 1963. 10 Evan Maude (Chancellor’s private secretary, Treasury), minute, 2 March 1961, TNA, T3205. 11 Malcolm (FO) to United Nations, letter, 9 February 1961, TNA, FO372/7574. 9

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The British delegation arrived in Vienna on 1 March 1961 and was well accommodated, equipped and instructed for the task before them. The British government had reserved rooms in two of the finest hotels in Vienna, the Hotel Sachers and the Hotel de France. Vallat had a suite in the Sachers and Glasse and Lush each occupied a single room with bath. Similar rooms in the same hotel were arranged for the temporary stay of Evan Maude of the Treasury and G. Hart of the Home Office.12 In the Hotel de France, still one of the most luxurious hotels in Vienna, the Secretary of the delegation, Lambert, the CRO adviser Cunningham and Malcolm of the FO each had a single room with bath, a luxury denied the secretarial staff who simply had single rooms.13 As there was not enough office space in the Conference building, Neue Hofburg, the British embassy provided Vallat with his own room to work in, a second room for the other advisers and another one for the secretarial staff. It also supplied with stationary, two typewriters and a duplicator.14 The British embassy further provided transport and entertainment. The embassy hired two cars for the use of the delegation: one for the entire duration and a second on a part-time basis as necessary. Last but not least, the embassy provided liquor and cigarettes for small receptions during which delegates could confer privately with members of other delegations in order to discuss positions and tactics. The Vienna delegation communicated with London via the usual means of communication between the British embassy in Vienna and the FO in London. Malcolm was the delegation’s main contact within the FO. Confidential bag dispatch was particularly appropriate for securitygraded documents and was despatched once a week in either direction, normally taking two days to arrive at its destination.15 For shorter and more urgent communications between Vienna and London, the delegation was able to use the cypher facilities in the British embassy. These were supplemented with short telegrams updating London on proceedings and seeking new instructions. In so doing, it supplied London with four kinds Evan Maude of the Treasury was the Chancellor’s private secretary while G. V. Hart was one of two assistant legal advisers under J. K. T. Jones in the HO. 13 Plan for the UK delegation to the UN conference on diplomatic intercourse and immunities, 6 February 1961, TNA, XC 12/17, T3205. 14 The British embassy in Vienna was headed by Sir Reginald James Bowker who became British Ambassador to Austria in 1958. He occupied this position until 1961. 15 The deadline for dispatches from London to Vienna was Thursdays at 4.30 p.m. They would arrive on Saturdays, while the bag service from Vienna to London left the embassy on Wednesdays and arrived in the FO on Friday mornings. Plan for the UK delegation to the UN conference on diplomatic intercourse and immunities, 6 February 1961, TNA, T3205, XC 12/17. 12

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of documents: first, provisional summary records of proceedings in the Committee of the Whole; secondly, the draft Articles as adopted by the Committee of the Whole; thirdly, the notes the Conference Secretariat issued for the guidance of the Drafting Committee and, finally, the texts of the Articles as approved by the Drafting Committee and on the basis of which the Plenary was to take the final vote. In addition to copies of the official conference documentation (the ILC drafts, Havana Convention and UN Secretariat guide to the draft Articles), the UK delegation was equipped with a brief stating the United Kingdom’s official and agreed view on each of the Articles as well as another one on political issues. As at the 1958 Law of the Sea Conference and the 1960 United Nations Educational, Scientific and Cultural Organization (UNESCO) General Conference, the UK delegation was supplied with a detailed brief on political issues that might arise during the Vienna Conference. Generally speaking, it was to avoid any political discussions, particularly regarding credentials. Should there arise political discussions which could not be dealt with instantly, or issues that were not covered in the brief, the delegation was to refer back to London. The political briefing, however, gave fundamental guidance on a number of notorious political questions revolving around contemporary territorial disputes and recognition of states.16 The latter issue arose in connection with, inter alia, the Chinese question. Britain did not expect the issue of Chinese representation to be raised during the Conference as the Conference was convened by the United Nations in which Taiwan held the China seat and from which, therefore, Beijing was excluded.17 However, should the occasion arise, it was hoped that Verdross, the Conference President, would rule such an intervention out of order and, if he did not, the United States would no Next to the mentioned points, the briefing stated quite a few minor points, inter alia, that the delegation should be friendly to the Yemen delegation and should support the credentials of the delegation from the Congo (Leopoldville). Moreover, because similar issues had arisen in other technical conferences and international forums, the FO had prepared a draft to counter possible claims to territories for whose external relations Her Majesty’s Government (HMG) was responsible, particularly those of the Falkland Islands (against Argentina) and British Honduras (against Guatemala). Draft brief for UK delegation, FO372/7576. 17 The Charter of the United Nations points out in Chapter II, Article 4 that membership in the UN will be effected by the decision of the United Nations General Assembly upon recommendation of the Security Council. It was not until 25 October 1971 that the necessary two-thirds of the General Assembly voted in favour of the People’s Republic of China (Beijing) to be the sole legitimate representative of China to the United Nations. 16

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doubt do so or ask for the question to be deferred. The United Kingdom was to support the United States on this point and, in the unlikely event of a vote on the Chinese credentials, to abstain on the grounds that the question was out of order. Should, alternatively, the credentials of the Chinese National authorities be questioned, the UK delegation was to vote in favour of their credentials.18 As many delegations had assumed in light of what happened at the 1958 Law of the Sea Conference, during the start of the Vienna Conference the Chinese question gave rise to only a small number of interventions on protocol. In order to avoid serious, possibly disruptive, discussion, the majority of these questions were dealt with within the Credentials Committee, which reported at the end to the Conference. In due course, the Soviets protested against the Nationalist Chinese representation but the Credentials Committee, chaired by the Australian head of delegation, John Charles George Kevin, did not engage with the issue and ruled it out of order, to the satisfaction of many Western delegations, including the British and the US. The political brief referred also to the Hungarian credentials. Following the October 1956 Hungarian rising, all ordinary and special sessions of the UNGA (including that in November 1956) had decided to take no decision regarding the credentials submitted on behalf of Hungary. In 1961 Vienna Conference the question had not yet been settled, so the UK delegation was instructed to cooperate with the US delegation for a repetition of the so-called ‘no-decision formula’. If the Credentials Committee report did not include such a formula, the UK delegation was to seek a corresponding amendment. However, this was not necessary as when the Credentials Committee reported to Plenary on the 81 delegations’ credentials it had received; it said that it had decided by a majority to defer a vote on the Hungarian credentials. The Soviet bloc protested the decision and launched into their well-rehearsed arguments about restricted participation and exclusion of representatives from People’s Republic of China, the Vietminh, North Korea and the Republic of Congo.19 However, this was clearly for the record as they simultaneously announced they would not vote against the Credentials Report, which eventually was adopted by a vote of 69 to 1 with only the Hungarian delegation voting against it. Diplomatic Intercourse and Immunities Conference of plenipotentiaries Vienna March‒April 1961, undated brief for the use of the UK delegation on political issues, classified as secret, TNA, FO372/7577 (UK political brief). 19 Antoine Gizenga installed an allegedly pro-Socialist, alternative government in Stanleyville (today Kisangani) of the Republic of Congo that competed with the central government in Leopoldville (today Kinshasa). 18

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Exerting influence Along the lines of UN voting groups (as for voting in the UNGA or Security Council), delegations at Vienna organized the preparations of the official discussions in Committee and Plenary. Some of the well-known groups of that time were the Soviet bloc, the Arab League countries, the Latin American group, the Western European group, the Commonwealth group and the Afro-Asian group. 20 Although the Vienna Conference was at no time permanently divided along the lines of UN regional groups, these group meetings helped to prepare a common position on upcoming Articles, with the discussions shedding light on delegations’ views on amendments and the likely consequences arising from them. 21 The Conference worked on a simple majority voting procedure in Committee for the preparation of the Articles and on a two-thirds majority procedure in Plenary for their final adoption. Thus, group meetings were a useful platform to discuss amendments to Articles adopted in Committee, to test possible voting patterns and, in a few cases, to organize opposition. Two groups, the Afro-Asian group and, to a lesser degree, the Western European group, were able to reach and influence a third of delegations, and, if they voted homogeneously, they could organize at least a blocking third in order to prevent the Plenary adopting unacceptable provisions. As we have seen in the last chapter, Cold War tensions did not infuse the Conference. On the one hand, the US delegation was weak and unable to fill its leadership role. On the other hand, the Soviets were well-led by Grigorii Tunkin, an eminent international lawyer, and, in British eyes, were moderate and reasonable. Together they combined to ‘prevent too many changes’ and to resist a flood of poorly drafted amendments. Moreover, they In the early 1960s, the Afro-Asian delegations were still counted as one group, although the independent African states had already started to act as a separate group. J. Hadwen and J. Kaufmann, How United Nations Decisions Are Made (A. W. Sythoff, 1962), p. 64. For group and bloc voting patterns in the United Nations during the 1950s, see Riggs, Politics in the United Nations (Urbana, 1958). 21 Today there are five UN regional groups: Western European and others, Latin American and Caribbean, Eastern European, Asian and African. However, in the early 1960s the Afro-Asian group was counted as one group. The five permanent members of the UN Security Council (China (Taiwan), France, Great Britain, the Soviet Union and the United States) were referred to as the ‘five great powers’. See ‘Report on the International Conference on Diplomatic Intercourse and Immunities held at Vienna, March 2 to April 18, 1961’, TNA, TP30015/85, FO372/7578 (Vallat report). 20

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were often in agreement on points on which other fellow delegations were not, so that (to US discomfort) the UK delegation occasionally organized majorities with the help of the Eastern bloc. Because of Vallat’s standing as a legal expert and conference diplomat, but also to fill the leadership vacuum, it was the UK delegation that found itself in the driver’s seat, taking the lead and calling the first Western European group meeting, during which Vallat was eventually asked to chair the future meetings of that group. Moreover, not only did Vallat chair the Western European group but he also presided over meetings of the 11-strong Commonwealth group.22 The main purpose of Commonwealth meetings was to orchestrate a common line as regards the particular needs of intra-Commonwealth diplomacy within the Convention. In this respect, Cunningham was a most helpful liaison officer and good communicator between the British and other Commonwealth delegations. The CRO prepared the groundwork by, in advance, having high commissioners lobby for prepared British amendments. At Vienna Cunningham was able to build on this and secure broad support for most of the amendments the United Kingdom considered necessary to accommodate intra-Commonwealth diplomacy. However, cooperation was not restricted to Commonwealth issues. Cunningham reported that Commonwealth cooperated fairly well on general points, with the old Commonwealth members consulting the British delegation also on points which were not of Commonwealth character. Others did so to a slightly less extent.23 Although the British delegation provided considerable guidance possible for other Commonwealth delegations, intra-Commonwealth consultations must be seen as discussions between active and deeply involved delegations who shared common objectives but did not always agree; they were certainly not occasions which the British even attempted to instruct the delegations of former dependencies. Moreover, while Commonwealth delegations might have been small, they could wield disproportionate influence because their delegates were members in Conference organs and could count on an inner circle of deeply involved

New Zealand, for reasons of costs, had decided not to send a delegation to Vienna but to rely on the British and other Commonwealth delegations to cover matters of Commonwealth interest; nor were Cyprus and Sierra Leone represented. Circular telegram to High Commissioner’s Offices (HCOs), 19 November 1961, TNA, DO161/139. 23 George Cunningham (UK delegation, Vienna) to Leonard Wakely (head of constitutional department, CRO), report no III, 6 March 1961, TNA, FO372/7575. 22

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Conference participants who won general praise for their contribution.24 Three chaired Conference committees.25 John Charles George Kevin, head of the Australian delegation and high commissioner of Australia to Ceylon, chaired the Credentials Committee. Credentials were a formal issue but, as indicated above, could give rise to political disputes, so it was comforting for Western delegations that this committee was presided over by a pro-Western delegation. Further, the Ceylonese chief delegate and ambassador to Washington, Serenat Gunewardene, chaired the prestigious Drafting Committee.26 Through his posting to Washington, he had a very good knowledge of US diplomatic practices and Vallat described him as a ‘sympathetic liaison officer’27 between Western and Afro-Asian delegations. As a member of both the Commonwealth group and chair of the Afro-Asian group, he contributed to an ‘unusually happy relationship between the Commonwealth and the Afro-Asian group [. . .] in no small measure’.28 Most prominent, however, was the contribution of the Indian delegate, Arthur Lall, the capable chairman of the meetings of the Committee of the Whole.29 A number of reports described him as one of the outstanding personalities of the Conference and an excellent choice.30 There was relatively little time allotted to the Conference, and negotiations during the first week were ‘hardly going at break-neck speed’.31 However, Lall’s experience, logical clarity and sound knowledge of the rules of procedure enabled him to keep an overview, even in complex discussions. Furthermore, he never lost sight of one of the most precious assets: time. He had drawn up an ambitious time schedule, and as the Conference started falling behind, Examples of small Commonwealth delegations: Ceylon (two members), India (three), Nigeria (three), Pakistan (two) and Union of South Africa (two). 25 Lall of India chaired the Committee of the Whole and, as a result, also the Steering Committee; Gunewardene chaired the Drafting Committee and Kevin, high commissioner of Australia, chaired the Credentials Committee. 26 At an early stage of the Conference preparations, Gunewardene was also candidate for the chairmanship of the Committee of the Whole. 27 Vallat report. 28 Ibid. 29 Waldron, ‘Report of the Irish Delegation to the Conference on Diplomatic Intercourse and Immunities, Vienna, March 2 to April 18, 1961’, INA, DFA, 417/244 (Irish delegation report). On the importance of appointing a capable chair and presiding officer, see R. Sabel, Procedure at International Conferences: A Study of the Rules of Procedure at the UN and at Inter-governmental Conferences, 2. ed. (Cambridge: Cambridge University Press, 2006), p. 68. 30 Vallat report. 31 Cunningham (UK delegation, Vienna) to Wakely (CRO), telegram, 10 March 1961, TNA, DO161/137. 24

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he imposed a guillotine on speeches in order to avoid too long-winded a discussion. In his final report Vallat expressed the highest praise for the way in which Lall presided over the Committee and left no doubt that his excellent chairmanship contributed largely to the satisfactory work of the Conference. Besides this, his position as chairman of the Committee of the Whole was not without importance for accommodating Commonwealth requirements. At the time of the Conference Lall was Indian Ambassador at Vienna but had substantial experience of parliamentarian diplomacy thanks to a spell as India’s Permanent Representative at the United Nations in the 1950s. During his time in New York, however, he had not appeared to be an enthusiastic supporter of the Commonwealth. He had been strictly non-aligned in his political attitudes and connected to the ‘abrasive and viscerally anti-American policy’32 of his notoriously awkward and abrasive chief, Krishna Menon.33 Thus, in an internal enquiry about his suitability as chairman of the Committee of the Whole, Cunningham had rated him as an unsuitable choice.34 Cunningham was wrong for Lall’s appointment turned out to be a stroke of luck for the Conference and for the Commonwealth in particular. His political nous and diplomatic experience meant he was fully aware of the significance and the particularities of intra-Commonwealth diplomacy, and this mattered given the widespread and general ignorance of the Commonwealth office of high commissioner. He helped to create an understanding of Commonwealth particularities in a way that a potential Latin American chairmen (the Salvadorian Miguel Rafael Urquía had been a possible candidate but he did not attend) could not have. As a result, Lall did not dismiss the UK amendments as political and regional particularities as an Eastern bloc candidate (Manfred Lachs, a Polish legal expert, who had been named early on for the Presidency of the Conference) might well have been inclined to do. Like Lall, Vallat played an outstanding role. Thanks to his ‘superior [legal] knowledge and conference manner’ he was a reputable head of delegation, chair of the Western European group meetings and reputable member of the Drafting Committee. 35 Together with his Soviet B. Crossette, ‘Arthur Lall, 87, Indian Diplomat and Scholar’, New York Times, 21 September 1998. 33 Vengalil Krishnan Krishna Menon, born on 3 May 1897, Calicut (now Kozhikode), India and died on 6 October 1974, New Delhi. Between 1947 and 1952, he was Indian high commissioner in London and later became Indian’s permanent representative to the United Nations. 34 Cunningham (CRO), minute, 13 February 1961, TNA, DO161/137. 35 Cunningham (CRO), report on the first three weeks of the Vienna Conference, undated, TNA, DO161/138. 32

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counterpart, Tunkin, Vallat reportedly provided, at all stages, continuous and active leadership in Conference work. 36 In so doing, Vallat and Tunkin worked on the understanding that they would protect the compromise solutions which Tunkin and Fitzmaurice (Vallat’s predecessor in the ILC) had fought for during the earlier drafting stages. Also worthy of note, both Tunkin and Vallat were legal experts of the highest calibre and, most naturally, sat on the Drafting Committee, one of the most influential Conference organs. Together with two other Commonwealth delegates – the chairman Sir Senerat Gunewardene and the head of the Ghanaian Legal Division, Emmanuel Kodjo Dadzie – Vallat worked on drafting issues which ranged from re-formulating the adopted text to finding compromise solutions in the spirit in which amendments to the ILC Articles had been presented. This gave the Drafting Committee a capacity to decide not only on matters of drafting but also on the content of the Articles. For the United Kingdom this meant that Vallat could, with considerable advantage, apply his legal expertise and make the most of his high reputation in the intimacy of a 12-member strong group of legal experts.

Objectives, negotiation tactics and results About two months after the termination of the Vienna Conference, Vallat submitted his report on it to the Permanent Under-Secretary of the FO, Sir Frederick Hoyer-Millar. In his report, Vallat explained that the delegation had been able to obtain most of the desired amendments and that he was satisfied with the final outcome of the Vienna Conference. He mentioned that it had been hard to obtain Commonwealth requirements and that it had required both persistence and persuasion to convince the Conference to accept general formulations that would allow the continuance of intraCommonwealth practices. One of the major issues was to provide for a widened communication concept that allowed the CRO to communicate with Commonwealth members instead of using the FO. This achievement was not least the result of Britain’s leadership role and British delegates’ fostering cooperation and communication between other Commonwealth delegates. Yet despite these efforts, Commonwealth delegations had noticed a tailing off of communication during the second part of the Conference. The reasons for this were at least twofold. First, Report of the Canadian delegation to the UN Conference on Diplomatic Intercourse and Immunities’ NAC RG25, 3477, 9–1961/1 (Canadian delegation report).

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after three weeks, when the Conference was about to tackle draft Article 23 in the Committee of the Whole, the CRO delegate, Cunningham, left. This was because the CRO had calculated that Cunningham’s main contribution at Vienna would be in the opening stage of the Conference and that a maximum of three weeks would be sufficient to see how far the Commonwealth as a whole would follow the British lead. Although Vallat had wanted Cunningham to stay until the end of the Conference, the small and under-staffed CRO was not able to spare Cunningham’s services any longer. He did, in fact, stay a week longer than planned, and as most provisions touching on the Commonwealth, including the vital amendments to Articles 14 and 47, had been settled, Cunningham returned to London on 22 March 1961. His return to London weakened the British delegation. Although at a later stage the representatives of the Treasury and Home Office assisted the delegation, they could not fill the gap which Cunningham left behind in terms of networking and cooperation with the other delegations. Secondly, the pace of the Conference increased noticeably towards the end. Partly because of the extended debates at the start of the Conference, little time was left for discussions at the end of the Committee meetings and in Plenary. Although Lall applied his best time-management skills, restricting not only the number of speeches to the minimum but also the time delegates could take the floor relatively early on, time constraints became increasingly pressing towards the end of the Conference and detailed discussions had to be abandoned in order to end on schedule. This handicapped the corridor work, which made for confusion of conference participants during the closing phase of the Conference.37 Time pressure accounted for Vallat’s inability to maintain close contact with all involved delegations and explains why the Commonwealth delegations felt they were not adequately consulted during the negotiations of Article 37 (on the extent of diplomatic privileges and immunities for nondiplomatic staff). After a protracted debate in Plenary, the negotiations of Article 37 were on the verge of failure, and in order to rescue the substantive content of Article 37, Vallat hammered out an oral amendment without previously taking the counsel of other Commonwealth delegations. This provoked some unrest among Commonwealth members, particularly the Ceylonese under Gunewardene, the Chair of the Drafting Committee and an influential ‘inner circle’ Conference delegate. In the subsequent voting on Vallat’s oral amendment, Gunewardene left Vallat stranded R. Bindschedler, ‘Die Wiener Konvention über die Diplomatischen Beziehungen’ (1963) 18, Swiss Yearbook of International Law, pp. 29–44, p. 32.

37

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and did not support the amendment. It was only after the meeting when Vallat consulted with fellow Commonwealth (and Western European) delegations that the necessary majority, which included Afro-Asian delegations, secured the adoption of what was for Britain a vital provision on the extent of privileges and immunities of administrative, technical and service staff. On the negative side, Britain was unable to obtain what she regarded as adequate amendments to four draft Articles. Two of these Article outcomes were the result of pressure exerted by delegations of smaller and recently independent (mostly Afro-Asian) countries which had a keen interest in strengthening the rights of the receiving state throughout the Convention. These delegations’ fear of external interference in internal issues weighed more with them than their interest in protecting the freedom of their (often relatively small) diplomatic missions abroad. For the Conference negotiations, this meant that the Afro-Asian delegations used their influence to restrict the principle of free appointment of staff, giving the receiving state last word as regards the size of a mission. Additionally, while negotiating Article 27 regarding the freedom of communication, this group managed to include an express provision stating why the installation of a diplomatic transmitter was to be subject to the receiving state’s consent. The United Kingdom, like other great powers with a copious diplomatic corps (the Soviet Union in particular generally had large missions), was concerned about protecting its mission’s freedoms abroad and opposed such limitations. This different focus on the application of freedom of diplomatic communication contributed to Vallat’s view although there were no fixed voting patterns, the Conference was, on the more important issues, divided between the major and minor powers; since the latter delegations were more numerous, they tended to impose their will.38 Finally, there were a couple of misgivings relating to traditional particularities in British law regarding diplomatic privileges and customs duties. The UK delegation was instructed to safeguard current British diplomatic practice. But while in general the delegation succeeded in doing so, there were two fiscal issues which were not covered to the complete satisfaction of the UK Treasury. Although cooperation with the Treasury was continuous and immediate (Evan Maude of the Treasury was directly involved in the negotiations), the Treasury was not happy about the final wording of Articles 36 and 37 regarding the exemption of import duties on re-imported goods (essentially Scotch whisky) and the income tax exemptions for an increased number of private service staff. 38

Vallat report.

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Negotiations of Commonwealth issues at Vienna The FO brief for the delegation combined instructions with tactics on how to achieve British goals. Thus, in addition to the political brief, the UK delegation was equipped with a second briefing on the substance of the 1958 ILC draft Articles. The brief pointed out what was problematic, where changes were needed in order to make provisions acceptable to Her Majesty’s Government (HMG), and what was accompanied with a provisional list of 21 desired amendments.39 Of these amendments, eight aimed to change the text’s substance (Articles 10, 14, 18, 27, 36, 37, 47 and the optional protocol on nationality) while the remaining 13 amendments referred to changes in terminology or formulation. Eventually, only 15 out of the planned 21 amendments were submitted by the United Kingdom itself. The other seven were dropped because either they were covered by the amendments put forward by other delegations or the likelihood of success was too small.40 Commonwealth issues were dealt in cooperation with the other Commonwealth countries (who were present except for New Zealand, Cyprus and Sierra Leone) in regional group meetings which took place in different intervals (at the beginning more frequently than towards the end) at Vienna Conference. These group meetings were called by the British delegation, which concentrated in the first meetings on checking and coordinating the extent of agreement to the amendments proposed by the British. Although the amendments were discussed with all Commonwealth delegations, it was agreed at the first meeting that amendments, as prepared by the British, should be laid down by the United Kingdom and not in the name of other or all Commonwealth delegations. The first Commonwealth meeting was on the morning of Friday, 3 March 1961 (the second Conference day), to discuss a preliminary list of amendments prepared by the CRO. The CRO wanted at least seven Articles amended. Of these, the most important concerned the classification of heads of mission (Article 14)  and the principle of non-discrimination (Article 47). The CRO’s primary goal was to get Article 14 amended in order to accommodate high commissioners within the first rank of heads of mission, and to insert into Article 47 a general formula which would provide a loophole for the peculiarities, and often more favourable treatment,

The briefing of the UK delegation suggested to introduce amendments to ILC Articles: 4, 5, 7, 9, 11, 12, 13, 15, 16, 17, 25, 28, 31, 32, 34, 35, 36, 37, 38, 42 and 44. 40 In detail, this meant that the UK delegation did not table its planned amendments to final Articles 4, 5, 16, 18, 30 and 44. 39

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extended between Commonwealth countries. The United Kingdom also suggested amendments to Articles 4 and 8 on the appointment of heads of mission and the appointment of nationals of receiving states. According to the CRO, neither Article was, legally speaking, accurate enough or reflective of intra-Commonwealth practice. However, the majority of Commonwealth delegations queried the necessity of these amendments as Commonwealth practice did not differ so much that it could not be covered by an amendment to draft Article 44 which would allow Commonwealth countries to retain, between themselves, their different, more favourable practices.41 In a second Commonwealth meeting, it was decided that the proposed amendment to draft Article 4 (appointment of the head of mission) should not be tabled as the Americans had introduced an amendment which would refer not only to agrément but also to other signs of approval which would be suitable for Commonwealth practices. As Commonwealth delegations were keen to keep the number of amendments as small as possible, the UK delegation agreed not to submit its amendments to Articles 5 (multiple accreditation), 13 (commencement of functions) and 16 (precedence among heads of mission) which took account of, inter alia, the fact that high commissioners are not accredited but appointed and neither do they carry a letter of accreditation but, instead, they present a letter of commission or, where appropriate, a letter of introduction.42 The suggested amendment to Article 8 (nationality of diplomatic staff) was also questioned by the Canadians. They considered it a rather minor point and feared that other delegations could question the necessity for any Commonwealth amendment at all. It was agreed that the United Kingdom would introduce the amendment to Article 8 to test reactions. However, as even the ILC draft was widely and severely criticized for ‘encouraging obsolescent and undesirable practice of employing diplomatic staff who were not nationals of the sending [s]tate’, the amendment stood no chance.43 From a Commonwealth point of view, one of the major shortcomings of the ILC draft Articles was that they implied that all diplomatic The amendment to draft Article 44 seemed generally accepted, with exception of South Africa. 42 Heads of mission exchanged between Commonwealth members carry a letter of commission. Only if such an exchange occurs between the Queen’s realms, which means that the Queen is the head of state of both states, these representatives will carry a letter of introduction written by the sending state’s head of government to his/her counterpart in the receiving state. See G. Berridge and A. James, A Dictionary of Diplomacy, 2nd edn (Houndmills Basingstoke Hampshire, New York: Palgrave Macmillan, 2003), letter of introduction, p. 161. 43 Circular telegram to HCOs, 19 November 1961, TNA, DO161/139. 41

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communication should be conducted through the Ministry for Foreign Affairs, and only ambassadors and nuncios were mentioned as belonging to the first class of heads of mission. However, Commonwealth countries did not communicate via the FO in London but through the CRO, and although the heads of missions exchanged within the Commonwealth enjoyed the same rank as ambassadors they were called high commissioners. Britain therefore wanted ILC draft Article 9 altered to permit communication through ‘appropriate Ministries’ (instead of Ministries of Foreign Affairs) and ILC draft Article 13 amended to rank high commissioners together with ambassadors and nuncios. As Ministry of Foreign Affairs was not universally used, a general reference to appropriate Ministries was easily agreed upon and inserted upon Britain’s request.44 More complicated, however, was the amendment of Article 14 regarding the classes of heads of mission.

Article 14: Classes of heads of mission In the Commonwealth group meeting, the importance of at least a general reference to high commissioners was deemed essential and some delegates stressed that the office should be explicitly mentioned. The British were optimistic about their draft amendment to this Article, especially given that the French signalled that they would want a direct reference to High Representatives within the French Community countries if the British sought to have included the title ‘high commissioners’ inserted into the text. As a result, the UK amendment provided that subparagraph 1(a) should include a specific reference to high commissioners.45 Introducing the amendment in the Committee of the Whole, the British delegation thought that the French would be useful allies and that they had carefully done their lobbying. While the fact that the wording of the amendment was following the example of Article 14 of the 1960 draft Convention adopted by the Asian-African Legal Consultative Committee was thought

The United States applied the term Department of State; the United Kingdom conducted diplomacy through the FO and the CRO, and most Commonwealth countries used the term ‘Department of External Affairs’. 45 The Asian-African Legal Consultative Committee was the legal advisery board of the 1956-founded Asian-African Legal Consultative Organization (AALCO). The offspring of the 1955 Bandung Conference which paved the way to the formation of the non-alignment movement, the AALCO’s Legal Committee, created a draft convention negotiated in 1960 which served as orientation for many Afro-Asian delegations. 44

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Table 6.1  Classes of heads of mission Classes of heads of mission ILC Draft Article 13

VCDR Article 14

1. Heads of mission are divided into three classes, namely: (a) That of ambassadors or nuncios accredited to Heads of State; (b) That of envoys, ministers and internuncios accredited to Heads of State; (c) That of chargés d’affaires accredited to Ministers for Foreign Affairs.

1. Heads of mission are divided into three classes, namely: (a) That of ambassadors or nuncios accredited to Heads of State, and other heads of mission of equivalent rank; (b) That of envoys, ministers and internuncios accredited to Heads of State; (c) That of chargés d’affaires accredited to Ministers for Foreign Affairs. 2. Except as concerns precedence and etiquette, there shall be no differentiation between heads of mission by reason of their class.

2. Except as concerns precedence and etiquette, there shall be no differentiation between heads of mission by reason of their class.

to bestow additional authority to the amendment (Table 6.1), the United States had shown no objections as neither did Vallat foresee any coming from the European delegations.46 However, to the British delegation’s surprise, the French said they were happy with the original ILC draft and interpreted the Article as implicitly covering high representatives. It was for political reasons only (i.e. because the British asked for a special mention of high commissioners) that the French changed their minds and asked for a reference to High Representatives. Initially, the United Kingdom thought the matter could be transferred to the Drafting Committee with a view to finding a general formula covering both offices. Cunningham was very positive about such a procedure because Vallat, Gunewardene of Ceylon and Dadzie of Ghana were members of the Drafting Committee and could probably press for a suitable wording. However, the Soviet Union objected strongly to any mentioning of particular titles, claiming that these regional matters should be settled between the countries themselves and not in a universal convention. The Soviets argued quite reasonably, if also forcefully, and their ‘moderate conduct throughout Cunningham (UK delegation, Vienna) to Wakely (CRO), report no I, 6 March 1961, TNA, FO372/7575.

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the Conference won them considerable support’.47 This being so, and because the Conference seemed to accept that high commissioners were of equal rank to ambassadors, the British delegation decided, in consultation with the other Commonwealth delegations, and with some regret, to seek compromise formula which indirectly covered high commissioners. For tactical reasons it was introduced by Ghana.48

Article 47: Non-discrimination The CRO attached tremendous importance to amending Article 47, and the British delegation accordingly prepared an amendment on general lines. Although Cunningham himself was no longer on hand to ensure and lead intra-Commonwealth cooperation, Britain hoped for widespread support. They did not think an inconspicuously worded general amendment would provoke objections and, moreover, the proposed wording was broad enough to cover other intra-Commonwealth particularities, thereby rendering unnecessarily any changes to Articles 8, 9, 11 and 12. All important was the change to subparagraph 2(b) to make it wider in scope than the ILC draft. The amendment had not been expected to arouse antagonism. Nevertheless, the increasing time pressure resulted in an acceleration of the debate in the final stages of the Conference which actually helped the amendment as it was only briefly discussed, resulting in the amendment passing the Committee effortlessly (Table 6.2). In fact, most of the debate on Article 47 revolved around an attempt by Bulgaria and Czechoslovakia to delete paragraph 2(a) on the grounds that the Convention should not envisage departures from rules which had been laid down as binding. This failed, being defeated on a roll-call vote of 20 in favour, 30 votes against and 19 delegations abstaining. Interestingly, on this amendment the United States allied with Bulgaria and Czechoslovakia before encountering severe opposition, led by the United Kingdom and Soviet delegations. Apparently by mutual agreement, the UK and Soviets supported each other over these two amendments to the Article, leaving the US delegation furious. In Plenary, subparagraph 2(a) was separately put

Circular telegram from CRO to all Offices of high commissioners, 19 November 1961, TNA, DO161/139. 48 The planned reference to ‘Acting high commissioners’ was dropped because other Commonwealth delegations pointed out that the chargés d’affaires referred to in this Article were chargés d’affaires en titre. A reference to Acting high commissioners was needed in relation to chargés d’affaires ad interim, which were dealt with in Article 19. 47

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Table 6.2  Non-discrimination Non-discrimination ILC Draft Article 44

VCDR Article 47

1. In the application of the present rules, the receiving State shall not discriminate as between States.

1. In the application of the provisions of the present Convention, the receiving State shall not discriminate as between States. 2. However, discrimination shall not be regarded as taking place: (a) Where the receiving State applies any of the provisions of the present Convention restrictively because of a restrictive application of that provision to its mission in the sending State; (b) Where by custom or agreement States extend to each other more favourable treatment than is required by the provisions of the present Convention.

2. However, discrimination shall not be regarded as taking place: (a) Where the receiving State applies one of the present rules restrictively because of a restrictive application of that rule to its mission in the sending State; (b) Where the action of the receiving State consists in the grant, on the basis of reciprocity, of greater privileges and immunities than are required by the present rules.

to another vote and retained by a substantial majority, as was Article 47 as a whole.

FO points Apart from the Commonwealth points, the FO was anxious to introduce changes to draft Article 35 and final Article 27, both of which were not acceptable to HMG. Article 27 stipulated freedom of communication, which the British considered a fundamental right which must not be limited. The Article had been contentious at the ILC stage (at that time still draft Article 25) and the British expected a recurrence of the previous debate. The delegation was instructed to safeguard two vital rights: (1) to include in diplomatic bags Articles for official use (secret equipment) and not merely correspondence and (2) to operate diplomatic wireless freely without needing to seek permission or obtain a licence from the receiving state. The British delegation submitted amendments covering both aspects with varying success. While the final wording regarding diplomatic bags and couriers accorded broadly with UK practice and was acceptable as the

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freedom of communication was extended to more than just documents, the second vital point was lost. The United Kingdom fought hard in cooperation with France, the United States and the Soviet Union, to avoid having to have the receiving state’s consent to install diplomatic wirelesses. However, the resistance to the unrestricted use of diplomatic wireless was too severe and there was no chance to surmount the united front of Afro-Asian and Latin American delegations. Vallat later concluded that it was a confrontation between users and non-users, the latter being united and motivated by the fear of the misuse of diplomatic wireless for propaganda and external intervention in internal affairs, and only to a lesser degree by the official reason given that the opposition was in order to avoid radio interferences.49 The British sought to organize a blocking third against the adoption of the ‘offending sentence’ and lobbied at the Conference and in foreign capitals. These attempts, however, failed and, there being no prospect of deleting it, the delegation concentrated on the maximum possible improvement. Vallat was able to persuade the sponsors of the amendment to reduce the limitations to the installation of diplomatic wireless stations to the simple consent of the receiving state, rather than the express consent as originally proposed. In his final report, Vallat concluded that the final wording of Article 27 was not satisfactory. However, in comparison with the original draft, it was an improvement and was less harmful to UK diplomatic practices than previously feared. Although the text failed to preserve what the United Kingdom had sought to build up during the years as diplomatic custom, the repercussions were likely to be limited: the Article could be read as providing for the possibility of a tacit agreement to install transmitters instead of requiring explicit authorisation. Therefore, Britain interpreted the Article to mean that where a diplomatic wireless had been in operation with the knowledge of the receiving state, consent was implied and there was no need to seek express consent.

Optional protocol on the acquisition of nationality The original ILC draft Article 35 stood in contrast to British diplomatic practice and was not acceptable to the British because its adoption would have required a change in law. The Home Office in particular was keen to delete the Article altogether on the grounds that it dealt with matters that 49

Bindschedler, member of the Swiss delegation, points out that the argument that stood in the forefront was the misuse of the diplomatic wireless stations for propaganda and interference with political affairs of the receiving state. Bindschedler (1963), p. 38.

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Table 6.3  Acquisition of nationality Acquisition of nationality ILC Draft Article 35

Optional protocol on nationality

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 receiving State, acquire the nationality of that State.

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 receiving State, acquire the nationality of that State.

did not touch on diplomatic privileges and immunities, and because no practical problem needed to be settled. The question of nationality arose only in relation to children born to a member of the diplomatic mission in a receiving state whose law conferred the nationality of that state on all persons born to its territory; but such states normally provided for exceptions to children of diplomatic personnel which were normally regulated by bilateral agreements (Table 6.3). Although at Vienna several delegations spoke against the draft Article, it was supported by the majority which was enough to push it to a vote in Plenary. But particularly the Latin American delegations threatened that including the Article would delay, if not prevent, ratification by them. Thus, in preparation for the Plenary discussion, the UK delegation sought additional instructions from London for a possible compromise formula. The Home Office responded that it still wanted the Article deleted. If proved impossible, it would accept a provision stating that a child whose father and mother were both foreign nationals and one of whom had diplomatic status would not, solely by operation of the law of the receiving state, acquire the receiving state’s nationality. Constantin Stavropoulos, United Nations Legal Counsel and head of the Conference Secretariat, was eager to find a compromise solution, but it was clear in Plenary that this was unlikely. The lobbying by the British delegation, together with the support of the Latin Americans, formed an opposition too strong to overcome and, as a result, made it impossible for draft Article 35 to pass the vote in Plenary. With a final vote of 42 in favour, 28 against and 6 abstentions, draft 35 Article did not receive the necessary two-thirds majority. Nonetheless, the underlying principle of the draft Article was not entirely lost, as Spain then proposed in an oral intervention that the substance of the Article be included in an optional protocol. The Spanish proposal was adopted by a vote of 54

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in favour, 4 against and 11 abstentions. To the British delegation, the final result was satisfactory. It abstained in the last vote and was pleased that ILC draft Article 35 was not in the final Convention.50

Article 11: Size of mission A third aspect which caused some concern to the British was the restriction on the free appointment of staff. This arose mainly in respect of Article 11 regarding the size of mission, but also arose in respect of Articles 7 and 8 (both concerning the appointment of military, naval and air attachés). Article 7 contained a provision that the receiving state might require the names of military, naval and air attachés to be submitted for approval. This had hitherto been contested by the British government. Discussions at Vienna threatened to stray further from British diplomatic practice during discussions on a French amendment proposing that inclusion in the diplomatic list required the consent of the receiving state. However, in a procedural motion, Ghana asked for a priority vote on the ILC draft Article. This request was granted and the draft was adopted as it stood by Committee and Plenary, thereby disposing of the French and the possible UK amendment (Table 6.4). Table 6.4  Size of mission Size of mission ILC Draft Article 10

VCDR Article 11

1. In the absence of specific agreement as to the size of the mission, the receiving State may refuse to accept a size exceeding what is reasonable and normal, having regard to circumstances and conditions in the receiving State, and to the needs of the particular mission. 2. The receiving State may equally, within similar bounds and on a non-discriminatory basis, refuse to accept officials of a particular category.

1. In the absence of specific agreement as to the size of the mission, the receiving State may require that the size of a mission be kept within limits considered by it to be reasonable and normal, having regard to circumstances and conditions in the receiving State and to the needs of the particular mission. 2. The receiving State may equally, within similar bounds and on a ­ non-discriminatory basis, refuse to accept officials of a particular category.

50

As of November 2013, the optional protocol on acquisition of nationality had not been signed by the United Kingdom.

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A similarly restrictive approach to the free appointment of staff was codified in Article 11 on the size of mission staff. It gave the receiving state the last word in deciding what would be a reasonable and adequate size for any diplomatic mission and, in so doing, departed from the principle that it was for the sending state to determine the size of the mission. The United Kingdom was opposed to putting a cap on the number of staff in a mission, considering it impracticable owing to wide variations in the temper and the organization of work between the diplomatic missions. That is, reciprocity was not always appropriate and it should be up to the head of mission to determine how many diplomatic staff were needed to discharge the functions of the mission. The British were unenthusiastic about this provision, expecting it would prove particularly tiresome in Iron Curtain countries as well as in the newly independent ones, but the small powers wanted to change the ILC draft in order to strengthen the position of the receiving state. Meanwhile, the great powers and those delegations from states that had commissioners placed in the ILC reiterated that the Article was a carefully drawn compromise aimed at avoiding friction between the political East and West. Despite this reminder, an Argentine amendment was carried out by the majority in Committee. The amendment originally suggested to insert the phrase ‘what it considers’. When the Article came before the Plenary, the Drafting Committee had changed the wording to ‘considered by it’. The UK delegation asked the FO for its view on the Argentine amendment and the new wording by the Drafting Committee. The FO cordially disliked the new wording (‘considered by it’) and, in order to avoid leaving the final authority to the receiving state, the British and Soviet delegations cooperated in Plenary in seeking the deletion of the words ‘considered by it’ in Plenary (leaving them in would have left room for interpretation).51 The FO agreed to seek any amendment that would modify the Argentine amendment (as modified by the Drafting Committee) in order to reduce the control which the amendment placed in the hand of the receiving state. However, the Plenary seemed to be firmly against the deletion, which was reflected in a plain, but still sufficient, twothirds majority for the retention of the new phrase in subparagraph 1. The British remained disturbed about the limitations to the principle of free appointment of staff. However, Vallat and Malcolm agreed that it was not a vital point and the permissive language of the Article had at least rendered it free from specific objection.

51

FO to Vallat, telegram on draft Article 10, 7 April 1961, TNA, T320/675.

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Treasury issues Another noteworthy aspect in the UK objectives were the fiscal issues revolving around Articles 34, 36, 37 and 39. The Treasury’s views had been emphasized by Maude of the Treasury at a delegation meeting which Vallat had convened on 27 February 1961, shortly before the Vienna Conference. In discussing the Treasury points, Vallat pointed out that Britain’s proposed amendment to Article 37 covering the exemption from income tax would be hard to justify on the lines the Treasury suggested. The draft amendment sought to limit income tax exemptions to the private servants of the head of mission. The domestic servants of other diplomatic staff would have to pay income tax. Although Vallat understood that the Treasury wanted only to protect a long-standing diplomatic practice, other states took a different line and the proposed amendment would be difficult to justify, would look mean, and had little hope of receiving the necessary support.52 Maude indicated that there was little room for compromise and doubted that the Treasury could drop the amendment or accept extended concessions to diplomatic privileges. For his part, Vallat was unwilling to table an amendment that would encounter stiff opposition unless instructed by Ministers. Accordingly, Vallat and Maude agreed to seek Ministerial instructions on Article 37 as well as on Articles 36 (exemption from customs duties and inspection) and 39 (duration of privileges and immunities as to excise duties), in respect of which the Treasury had tabled similarly controversial amendments.

Article 34: Exemption from taxation There was no Treasury representative on the UK delegation during the early stages of the Conference, and two weeks after it had begun Vallat requested instructions from the Treasury in order to be able to prepare amendments on the disputed Articles 36, 37 and 39. Miss Miles, the designated Treasury representative, had fallen ill and was replaced by Maude. Losing Miles at short notice delayed discussions on Article 34, which had to await Maude’s arrival at Vienna. Nevertheless, the UK delegation was well instructed and discussions went through satisfactorily. The Article provided for a number of limitations to fiscal privileges and enumerated the kind of taxes and duties which were not

52

Maude (Treasury) to Leonard Warr (principal tax and stamps division, BIR), letter, 7 March 1961, TNA, T3205.

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Table 6.5  Exemption from taxation Exemption from taxation ILC Draft Article 32

VCDR Article 34

A diplomatic agent shall be exempt from all dues and taxes, personal or real, national, regional or municipal, save: (a) Indirect taxes incorporated in the price of goods or services;

A diplomatic agent shall be exempt from all dues and taxes, personal or real, national, regional or municipal, except: (a) Indirect taxes of a kind which are normally incorporated in the price of goods or services; (b) Dues and taxes on 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; (c) Estate, succession or inheritance duties levied by the receiving State, subject to the provisions of paragraph 4 of Article 39;;

(b) Dues and taxes on private immovable property, situated in the territory of the receiving State, unless he holds it on behalf of his Government for the purposes of the mission; (c) Estate, succession or inheritance duties levied by the receiving State, subject, however, to the provisions of Article 38 concerning estates left by members of the family of the diplomatic agent; (d) Dues and taxes on income having its source in the receiving State; (e) Charges levied for specific services rendered; (f) Subject to the provisions of Article 21, registration, court or record fees, mortgage dues and stamp duty.

(d) 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; (e) Charges levied for specific services rendered; (f) Registration, court or record fees, mortgage dues and stamp duty, with respect to immovable property, subject to the provisions of Article 23.

covered by diplomatic privileges. At Vienna, a number of amendments were successfully introduced, some of them with the obvious intention of solidifying these limitations (see changes to subparagraphs (d) and (f)) or introducing technical drafting changes (subparagraphs (b) and (c)). By contrast, the amendment sponsored by the UK delegation had the objective of widening the interpretation of the nature of indirect taxes covered by subparagraph (a). Under instructions from the Treasury, the UK delegation ensured that purchase tax would be included in the exception. 53 The substance of the amendment was well received but the The British amendment provided for the phrase ‘indirect taxes of a kind which are normally incorporated in the retail price of goods’.

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Soviets challenged the UK view that including the word ‘retail’ was a matter of drafting only. As a result, the UK delegation dropped the word ‘retail’ and replaced it with the phrase used in the original part of subparagraph (a). In Committee, the Soviets still resisted the drafting change and voted against it. However, there was enough support to gather the necessary simple majority and the UK amendment was adopted by a vote of 27 votes to 18, with 26 delegations abstentions. The Article as a whole was adopted in Committee and later in Plenary, without division as the great majority of delegations seemed satisfied with changes to the fiscal Article which was crucial for exactly determining tax exceptions (Table 6.5).

Controversial fiscal points: Articles 36, 37 and 39 When Maude arrived at Vienna on 27 March 1961, the outstanding ministerial instructions on the controversial fiscal points could be clarified. The Treasury suggested accepting Article 36(1) as drafted and was happy to grant immunity from tax and suit for servants of the head of mission but not for servants of other diplomatic agents. Accepting Article 36 (1) as it stood was a concession on the part of the Treasury and meant ‘a great deal’ for the FO. It was the most important of the three points (between Articles 36, 37 and 39) from a practical point of view. The FO accepted the Treasury view on Article 36, granting privileges and immunities only to servants of the head of mission, although the delegation already knew that they were fighting a lost battle.54 After introducing an amendment on this point according to the Treasury lines, Vallat was pessimistic about winning support with the Conference for an amendment that aimed merely at enabling the United Kingdom to keep its existing diplomatic practice. Furthermore, regarding Article 38 the Treasury was prepared to accept exemption from inheritance tax on all movable property in diplomatic residences (including pictures, jewellery and motor cars) but not for invested capital. Apart from some minor details, this view was shared by the FO.

Article 36: Exemption from custom, duties and inspection Paragraph 1 of the ILC draft did not take account of states, such as the United Kingdom, which used administrative measures to grant custom exemptions (because of long-standing practice and without the need for Malcolm (FO) to Vallat (UK delegation, Vienna), telegram, 16 March 1961, TNA, FO372/7575.

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legislation). In the United Kingdom, customs franchise for heads of resident missions was based on a Treasury minute of 1856, explaining that the privileges of members of the diplomatic mission rested upon bilateral and mutual arrangements. While the Treasury did not regard the exemption of a diplomatic agent and his family from custom duties as an international legal obligation, it was prepared to one in the final Article. Nevertheless, it attached the greatest importance customs privileges applying only to foreign goods and the delegation was instructed to introduce an amendment to paragraph 1, adding the words ‘originating outside the receiving state’ (Table 6.6).55 At Vienna, only the controversial discussions on Article 27 on the freedom of communication and Article 37 on privileges and immunities attracted more amendments than those on Article 34 on exemptions from customs duties and inspection. The discussions on the over a dozen amendments overlapped or, as it was the case with the British amendment, were not discussed at all prior to the voting. Although the amendment was, of course, accompanied by a clarifying explanation by the British delegate, Glasse, no other delegation referred to the amendment and few delegations thought it worth supporting. As a result, the amendment did not pass in Committee and was rejected by 38 votes to 4, with 26 abstentions. The failure of this amendment was a special concern for the Board of Customs and Excise. The prospect of foreign missions in London importing from Ireland or the Channel Isles duty-free Scotch whisky was clearly unattractive.56 Maude, the Treasury representative, called the rejection of the draft amendment a regrettable failure. For him it was out of question to reverse the long-standing practice that diplomatic customs franchise was restricted to goods originating outside the United Kingdom. He suggested that the UK delegation should make a statement on this point before the closure of the Conference. The relevant Committee discussions had taken place in the last week of the Conference, and there was no possibility of initiating discussion in the subsequent Plenary discussion of the Article. The flood of amendments that the Article had attracted in Committee and Plenary, combined with increasing time constraints, quashed every hope of amending the Article successfully, even by threatening to insert a reservation.

Brief for the UK delegation at the Vienna Conference, undated, Article 34, TNA, LCO2/8478. 56 Maude (UK delegation, Vienna) to Raymond (Treasury), undated report of discussion on fiscal points, TNA, T320/675. 55

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Table 6.6  Exemptions from customs duties and inspection Exemptions from customs, duties and inspection ILC Draft Article 34

VCDR Article 36

1. The receiving State shall, in accordance with the regulations established by its legislation, grant exemption from customs duties on: (a) Articles for the use of a diplomatic mission; (b) Articles for the personal use of a diplomatic agent or members of his family belonging to his household, including articles intended for his establishment.

1. The receiving State shall, in accordance with such laws and regulations as it may adopt, permit entry of and grant exemption from all customs duties, taxes, and related charges other than charges for storage, cartage and similar services, on: (a) Articles for the official use of the mission; (b) Articles for the personal use of a diplomatic agent or members of his family forming part of his household, including articles intended for his establishment. 2. 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 1 of this Article, or Articles the import or export of which is prohibited 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 authorized representative.

2. The personal baggage of a diplomatic agent shall be exempt from inspection, unless there are very serious grounds for presuming that it contains Articles not covered by the exemptions mentioned in paragraph 1, or Articles the import or export of which is prohibited by the law of the receiving State. Such inspection shall be conducted only in the presence of the diplomatic agent or in the presence of his authorized representative.

Article 37: Privileges and immunities of non-diplomatic staff From a UK perspective, two main questions arose as regards this Article: first, extending personal customs franchise to administrative and technical staff and, secondly, the applicability of income tax exemptions for private servants. When the Article was under discussion during the (abovementioned) February delegation meeting in London, Vallat expected that other delegations would widely welcome the extension of customs privileges to non-diplomatic staff, as suggested in the ILC draft. To him it seemed unlikely that any attempt to resist this extension would be supported by the majority, so he had insisted on ministerial instructions. At Vienna, and contrary to what he had expected, opinions on the need for privileges and immunities for administrative and technical staff were widely spread.

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A good number of the minor powers took the old-fashioned view that there was an essential difference between officers of diplomatic rank and non-diplomatic staff and argued that the latter had no need of special privileges. By contrast, the great powers attached importance to the role of the so-called junior staff. For example, the United States went as far as to suggest equal treatment and complete privileges and immunities for both, administrative and technical staff as well as service staff. The Conference was divided and there seemed no hope of getting either position through. A compromise was reached whereby administrative and technical staff were given full diplomatic immunities but customs franchise only on their first arrival. Regarding the situation of private servants, the UK delegation did as instructed and introduced an amendment restricting tax exemptions to private servants of the head of mission. As expected, the UK delegation stood alone with its amendment and, to avoid a defeat, did not press the amendment to a vote. Particularly for the Treasury this was an unsatisfying result and Maude expected the United Kingdom attaching a reservation when ratifying the Convention since Treasury Ministers would likely be extremely reluctant to approve legislation on this point.57

Article 39 (Estate duty) The problem with draft Article 38 was that it went further than current UK diplomatic practice. If the Article remained unchanged, ratification would have required legislation granting an extension of granted tax privileges. At least this was what the Treasury feared. Although paragraphs 1 and 2 were generally acceptable to the British delegation (although they felt the wording could be improved), paragraph 3 provided that estate duty should be charged only on the immovable property of a deceased diplomat. But hitherto Britain had only exempted from death duty movable property, which was physically situated at the mission premises or the ambassador’s official residence and which had belonged to a non-domiciled deceased diplomat. The Board of Inland Revenue saw no merit at all in exempting a private fortune from estate duty (Table 6.7). At Vienna, it was touch and go whether ILC draft Article 38 was amended. The UK delegation was instructed to table an amendment to paragraph 3 so that estate, succession and inheritance duties should not be levied on

Maude (UK delegation, Vienna) to Raymond (Treasury), undated report of discussion on fiscal points, TNA, T320/675.

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Table 6.7  Duration of privileges and immunities Duration of privileges and immunities

1. Every person entitled to diplomatic privileges and immunities shall enjoy them from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry for Foreign Affairs. 2. When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist. 3. In the event of the death of a member of the mission not a national of the receiving State, or of a member of his family, the receiving State shall permit the withdrawal of the movable property of the deceased, with the exception of any property acquired in the country, and the export of which was prohibited at the time of his death. Estate, succession and inheritance duties shall be levied only on immovable property situated in the receiving State.

1. Every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry for Foreign Affairs or such other ministry as may be agreed. 2. When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist. 3. In case of the death of a member of the mission, the members of his family shall continue to enjoy the privileges and immunities to which they are entitled until the expiry of a reasonable period in which to leave the country. 4. In the event of the death of a member of the mission not a national of or permanently resident in the receiving State or a member of his family forming part of his household, the receiving State shall permit the withdrawal of the movable property of the deceased, with the exception of any property acquired in the country the export of which was prohibited at the time of his death. 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 of the deceased as a member of the mission or as a member of the family of a member of the mission.

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the movable property of a deceased person whose permanent residence was outside the receiving state, if situated in premises that were inviolable under the Vienna Convention. However, Vallat’s amendment was unlikely to be accepted since most delegations were happy with the draft Article as it stood. Even Maude, the Treasury representative, saw little prospect of the Treasury amendment being adopted or at least not in the terms that would be acceptable to the United Kingdom. The only possibility Maude envisaged of moving in the ‘right’ direction would be via an amendment on the lines of a similar provision used in the North Atlantic Treaty Organization (NATO) Status of Forces Agreement.58 Accordingly, the United Kingdom withdrew its old amendment in favour of a new one; meanwhile, Maude started lobbying with the Western European group as well as a number of Commonwealth delegations. References to the NATO agreement made quite an impression and bore remarkable fruit, reflected in the final voting. While other amendments, such as that of the US delegation on which it forced a roll-call vote,59 were heavily defeated, the UK amendment was carried in Committee with 30 votes in favour, 22 against and 16 abstentions. Maude later acknowledged that the adopted amendment differed greatly from what had been approved by the Treasury, but he had hoped that the amendment would be perceived as better than nothing.

Post-Vienna: Signing and ratification of the 1961 Vienna Convention While the Plenary of the Conference had concluded its work by 14 April 1961, it took the Secretariat four more days to prepare the final documents so that the Conference could be officially concluded on the afternoon of 18 April 1961, with the signing of the Final Act. Of the 81 delegations, 74 signed the Final Act (including all permanent members of the UN

The NATO Status of Forces Agreement, signed on 19 June 1951 between the members of NATO, establishes the legal basis for the presence of NATO troops of one member on the territory of another NATO member state. 59 The United States wanted to introduce the principle that the loss of privileges and immunities should take effect from the time when the diplomat’s functions ceased. By contrast, many other delegations, including those from the Soviet bloc, thought nationals of the sending state should continue to enjoy privileges and immunities until they left the territory of the receiving state. The amendment would have allowed the withdrawal of movable property only after payment of the ‘just debts’ of the deceased. 58

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Security Council), with 37 also signing the Convention.60 Vallat and Glasse signed the Final Act on Britain’s behalf, but neither the Vienna Convention nor the Optional Protocols. Despite the near-unanimous adoption of the Convention (only Tunisia abstained in the final vote), only 37 delegations signed the Vienna Convention on the spot.61 Legally speaking, the signing of the Convention had no binding significance and merely indicated an intention to ratify. The Convention and the Optional Protocols remained open for a year: for six months (until 31 October) at the Austrian Foreign Ministry in Vienna and then at the seat of the United Nations in New York. Signature at any time within that period was of equal legal validity, so most delegations, including all permanent UN Security Council powers other than China (at that time represented by Taiwan), could without difficulty abstain from signing the Convention immediately after the closing ceremony. Few Whitehall Departments were aware of this legal quiddity, and several officers checked with the FO’s legal advisers the exact stipulation of the VCDR’s final clauses. Members of Parliament had similar questions: on 15 May 1961 the Lord Privy Seal was asked why the British delegation had not signed the Convention. The FO’s Parliamentary Under-Secretary, Joseph Godber, replying to the question, said that the UK delegation signed the Final Act but not the Convention, in order to give HMG ‘a full opportunity before signature to consider the Convention in all its aspects’.62 What Godber actually meant was that it was also a question of power. Adhering to a multilateral convention was subject to Cabinet approval. As the UK delegation was not able to push through all of its strategic amendments and proposals, approval could not be taken for granted. Even if the delegation had been able to achieve all its aims, it would have been inappropriate to sign without express powers and instructions.

China and the Soviet Union were the only permanent members of the United Nations Security Council that signed the Convention instantly. Other delegations that signed the VCDR on April 18 were: Albania, Argentina, Austria, Byelorussian Soviet Socialist Republic, Brazil, Bulgaria, Czechoslovakia, Chile, Colombia, Democratic Republic of Congo, Denmark, Ecuador, Federation of Germany, Ghana, Guatemala, Holy See, Hungary, Ireland, Israel, Lebanon, Liberia, Liechtenstein, Mexico, Norway, Panama, Poland, Romania, Senegal, Ceylon, Sweden, Switzerland, the Ukrainian Soviet Socialist Republic, Uruguay, Venezuela and Yugoslavia. UK Mission to the UN to FO, list of states that signed the VCDR, 12 May 1961, TNA, FO372/7577. 61 Nor did Tunisia sign the Convention at the Conference, although it acceded to it in 1968. 62 Reginald Sorensen (MP for Leyton) to Joseph Godber (minister of state for foreign affairs, FO), 15 May 1961, TNA, FO372/7577. 60

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After the Vienna Conference, the FO needed to assess the outcome of the negotiations. Vallat duly submitted a detailed, 23-page report to the Foreign Secretary, Lord Home, in which he spoke favourably about the general outcome. The detailed codification of diplomatic law had been a ‘hazardous task’ but it had resulted in a fair codification of existing law, despite some significant variations to British diplomatic practices.63 Although it had departed from Britain’s opinion on Articles 11 (size of mission) and 27 (freedom of communication), it satisfactorily covered aspects of intraCommonwealth diplomacy. Although British ratification of the Convention would involve legislation, the tendency was to reduce rather than to increase diplomatic privileges and immunities and it would probably be welcomed by the public for this reason. The systematic codification of diplomatic practice constituted a path which the members of a politically and culturally diverse international community, particularly its newer members who had little to no memories or accumulated customs to guide them, could follow together. A large number of states were likely to accept the Convention as an authoritative source of international law and it would become, sooner or later, the relevant source of reference. Concluding, Vallat explained that the quality of the draft proposals and the resulting success of the Vienna Conference had strengthened the reputation of the ILC as the principal institution for the codification of international law. Lord Home, however, took issue with certain aspects of the Convention and expressed doubts about accepting the provisions on the size of staff (Article 11), the obligation to obtain accommodation (Article 21)  and restrictions on freedom of communication (Article 27). In order to make a better-informed judgement, he wanted to know the views of the French and Americans, instructing the ambassadors at Paris and Washington to make ‘necessary enquiries’.64 Both countries’ attitudes towards the result of the VCDR negotiations were similar to Vallat’s and signature was expected in due course.65 As in the United Kingdom, the conventional text had been circulated to all interested Departments. However, in France, the Quai d’Orsay, the French Ministry of Foreign Affairs, which was struggling because many experts were on summer leave, moved slowly. Furthermore, although the French were generally satisfied with the Convention, the Ministry of Justice had raised technical objections on some of its Vallat report. FO Protocol department to UK delegation to NATO, 29 August 1961, TNA, FO372/7578. 65 UK delegation to NATO to FO Protocol department, letter, 30 May 1961, TNA, FO372/7578. 63

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provisions. Reginald Michael Hadow, the chargé d’affaires in Paris, did not think an early signature was likely but, according to the head of the French Department of political affairs, Charles Lucet, political considerations (id est the great importance the VCDR had particularly for the large majority of new states) would carry the day. Decisions at Washington were taken faster, but the Convention remained an issue there also. According to His Excellency Sir Harold Caccia, British ambassador at Washington (from 1956 to 1961), the Americans were not wholly pleased with the Convention but eventually arranged to live with it.66 Like the United Kingdom, the United States had reservations about Articles 11, 21 and 27, but these did not prevent the United States from signing the Convention early on. So, while the Americans had overcome their misgivings rapidly and signed the Convention in Vienna on 29 June 1961, the French were ‘bogged down in an interdepartmental discussion of technical issues’ and as of September 1961 were not likely to sign anytime soon.67 It was not until the end of October 1961 that the Foreign Secretary’s doubts about signing had been overcome. Eventually, on 26 October 1961, the necessary consent between the Departments was achieved so that the Foreign Secretary gave the green light to proceed with the signature of the Vienna Convention and the Optional Protocol on the compulsory settlement of disputes. (It did not sign the other Optional Protocol on nationality.)68 Theoretically, there were still five more days during which the Convention was open for signature in Vienna. According to the FO, there would have been a certain psychological advantage in doing so; however, time was too short for the necessary arrangements to be made. Thus, the FO started to arrange for signature at New York where the VCDR remained open until end of March 1962. On 9 November 1961, Malcolm, on behalf of the Secretary of State, requested Sir Patrick Dean, UK permanent representative at the United Nations, to arrange with the Secretary-General of the United Nations to sign the Vienna Convention, as well as the Optional Protocol of Compulsory Settlement of Disputes. On 11 December 1961, Dean signed the Vienna Convention on Diplomatic Relations and the Optional Protocol on Dispute Settlement on behalf of the UK government. Sir Harold Caccia (British ambassador, UK embassy, Washington) to Malcolm (FO), letter, 24 August 1961, TNA, FO372/7577. 67 France signed the Vienna Convention on 30 March 1962. FO Protocol Department to UK delegation to NATO, 22 September 1961, TNA, FO372/7578. 68 The CRO, inter alia, asked Britain to defer signing until there had been consultation with the Federation of Rhodesia and Nyasaland which would be automatically included in the UK act of signature. Glasse (FO), minute, 19 September 1961, TNA, FO372/7579. 66

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Britain’s ratification of the Vienna Convention on Diplomatic Relations, 1962–4 Although there was a time limit for signature, there was none for ratification. Article 51 of the Convention provided its automatic entry into force of the Convention 30 days after it had received its 22nd ratification. In order for the VCDR to be ratified by HMG, it was necessary to align the law and practice of the United Kingdom with the provisions of the VCDR. Although it would have technically been possible to avoid legislation, as the VCDR tended to reduce diplomatic immunities, it was preferable to introduce new legislation in order to be able to take full advantage of the reduced circle of diplomatic agents enjoying full diplomatic immunities under the VCDR. Thus, the FO sponsored a Bill giving the force of statute law to the provisions of the VCDR in substitution for existing UK practices based on custom, the Common Law and relevant statutes. A relatively short Bill with about ten clauses was planned.69 Looking at the British ratification process, however, in early 1962 it seemed to have become a tiresome process, marked by a long-standing interdepartmental disagreement between, on the one hand, the Treasury which wanted to append two reservations to the ratification and, on the other, the FO which was in principle opposed to attaching reservations to multilateral conventions. Indeed, while Britain had signed the VCDR relatively fast, it was moving towards the ratification stage rather slowly. Britain had signed the Convention with the concurrence of all interested departments, and although signature did not oblige the United Kingdom to ratify, it was a matter of general policy that the United Kingdom did not sign international agreements without firmly intending to proceed to the binding act of ratification.70 The first legislative stage – interdepartmental consultations – was a disaster, as the FO was bogged down in a dispute with the Board of Customs and Excise and the Board of Inland Revenue. During discussions in the run-up to signature, the FO’s legal advisers explained to interested Departments that during the period between Glasse (FO), notes, 8 January 1963, TNA, FO372/7814. Only in 1964 had such a procedure become codified in international law through the virtue of the Vienna Convention on the Law of the Treaties. When a state signs a treaty ‘subject to ratification, acceptance or approval’, the mere signing of the convention is not legally binding on the signing state, although it does oblige the signing party to refrain from acts which would defeat the object and purpose of the treaty until such time as it has made clear its intention not to become a party to the treaty. See Vienna Convention on the Law of Treaties, Article 18(a).

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signature and ratification any envisaged difficulties could be ironed out during interdepartmental discussions. The Board of Customs and Excise as well as the Board of Inland Revenue understood that such ironing out might include considering reservations. Technically speaking, they were right, as reservations to international conventions can be placed either on signature or on ratification (but not in between these two official acts). However, by custom the United Kingdom preferred to submit reservations on signature rather than on ratification, and although the FO had indicated this early on, it was only during ratification discussions between the FO and the Treasury that this aspect came to the fore. The Treasury and the FO had different views, particularly over Article 36 on the exemption from income tax of household servants, and Article 38 regarding the duty-free re-importation of goods of UK origin. Ever since the conclusion of the Conference, the FO had been trying to dissuade the revenue departments from pressing reservations regarding these two Articles. Although both the Chancellor of Exchequer and the Foreign Secretary were in direct contact with each other, the situation was difficult and had eventually taken to the Cabinet. The business of the Cabinet consists mainly of questions which engage the collective responsibility of the government, such as points of principle and major issues of policy. Additionally, the Cabinet can also be involved as a last resort for interdepartmental disputes when all other means, such as personal correspondence and discussions between the Ministers concerned, have been exhausted. In the case of the Vienna Convention, two questions of potential Cabinet concern emerged. The first was whether legislation was needed and, if so, what form it should take. The second question (which was the more tedious one) was whether the United Kingdom should ratify the Vienna Convention with or without attaching reservations. The contentious fiscal points would mean extending tax privileges, and the question of how to deal with them was holding up the entire operation. The respective Ministers could not reach a mutually satisfying decision, and, as a consequence of their irresolvable consultations in May 1962, the Chancellor of Exchequer, Selwyn Lloyd, sought the advice of the Cabinet presenting a memorandum in which he explained his view that ratification of the VCDR should be subject to reservations on the before-mentioned two points.71 Following, the Foreign Secretary, Lord Home, was asked to explain his view on the raised points and how it suggested to proceed with the issue. 71

Memorandum by the Chancellor of the Exchequer, C. (62). 65, 3 May 1962, TNA, CAB129/109.

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The income tax point Article 37, paragraph 4 of the Vienna Convention provides that private servants of members of a Mission, who are not nationals of, or permanent residents of, the receiving state, shall be exempt from income taxes. Until now Britain had only granted such an exemption to the servants of heads of Mission. The Treasury opposed such a widened exemption because it saw no obvious reason why private servants of lower-ranking diplomats, paid not by the foreign government but by those agents, should enjoy exemption from income tax. They also thought it would be difficult to justify the extended privileges to Parliament, which took a negative view on any further increase of tax privileges to diplomats. By contrast, the FO opposed appending reservations on ratification as it would feel embarrassment. For them, it was most desirable that the UK ratification should be clean, that is, free from reservations. Traditionally, Britain had been in the forefront of states which foster and support International Law.72 Reservations were seen by the FO as undermining the spirit of compromise in which the Articles were negotiated and hamper, if not destroy, the value of the Convention as a codifying instrument. The FO was also guided by the principle that reservations to international agreements should not be made unless vital national interests were at stake. In the present instance, the amount of revenue at stake was minor and no vital interests could be said to be in danger.

The excise point The excise problems were at least twofold. Firstly, the Treasury saw an inconsistency between Articles 34 and 36 of the Vienna Convention. While Article 34 provided for a general exemption, making diplomats also liable to pay indirect taxes (e.g. purchase tax to which the Treasury also counted excise duties), Article 36 was interpreted as permitting for the duty-free re-importation of goods of UK origin. However, although it was British diplomatic practice to allow the import of goods duty and customs free, this custom did not extend to excise duties on goods produced in the United Kingdom, such as Scotch whisky. Secondly, the Treasury insisted, as a matter of principle, that customs privileges had always been contested and that such an exemption had great potential for misuse. Permitting the Lord Carrington (Leader of the House of Lords), Diplomatic Privileges Bill, second reading, 11 May 1964, Hansard 1803–2005, http://hansard.millbanksystems.com/ lords/1964/may/11/diplomatic-privileges-bill-hl, 28/11/2011.

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re-importation, duty free, of British products as per Article 36, according to the Treasury, would bring no foreseeable end to what goods and duties might be involved or the people who could claim those privileges. The British Customs and Excise Act of 1952 explicitly stated that goods liable to excise duty (e.g. Scotch whisky) cannot escape taxation by being exported duty free and then being re-imported.73 Such goods were subject to a charge equal to the amount of the excise duty in force at the time of importation. However, accepting Article 36, paragraph 1 as it stood would mean enabling diplomats to import from overseas, goods (regardless of origin) for their personal or official use without attracting liability for payment of duties or taxes of any kind. The Department of Customs and Excise wanted to adhere to the basic revenue principle that no goods liable to excise duty should be consumed within the United Kingdom without paying duty charges. It thought the Vienna Convention would undermine the position regarding excise duties and open unnecessarily the way for uncontrolled widening (for instance to international organizations) or even misuse. Furthermore, the Treasury thought public opinion would not support any increase in the already wide field of diplomatic and similar privileges. After the Cabinet had taken into account the divergent positions, it concluded that it could not decide on a solution without further considerations of the form of the legislation required to enable the United Kingdom to ratify the Vienna Convention. As a result, the Cabinet instructed the Secretary of the Cabinet, Norman Brook, to arrange for a report to be prepared by officials (the Lord Chancellor Office) on the nature of the legislation required for this purpose. This report, which Brook presented to the Cabinet in late October 1962, concluded that legislation would take form of a Bill with four or five operative clauses and a Schedule (addendum). Although the report agreed that both issues, tax exemption for diplomats’ servants and the concession on free entry of re-imported goods, conflicted with revenue principles, it highlighted that in both cases little revenue was at stake. So, the question whether ratification should be made subject to reservation was a matter of balancing revenue considerations on the one hand and considerations of international policy and practice on the other. Eventually, it was the Prime Minister who arranged for the establishment of a committee of officials (the Lord Privy Seal) to consider interdepartmental problems affecting immunities and privileges. Resulting, in early 1963 a cabinet committee on immunities and privileges had been established to consider the requisite legislation in order to ratify the VCDR. At its first meeting, on 9 January 1963, it decided to 73

Customs and Excise Act, 1952, section 35.

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seek authority for drafting a bill as soon as interdepartmental difficulties had been settled. It then suspended its work until the departments found a solution. In February, Reginald Maudling, the new Chancellor of Exchequer, contacted the Lord Privy Seal, Edward Heath, in order to settle the outstanding revenue matters.74 After careful examination of the situation and further enquiries by the Revenue Departments of the practice in other countries, the Chancellor of Exchequer agreed to exempt all domestic servants from income tax. On the other customs exemption of re-imported goods, however, Maudling remained firm. In the FO, the concession left a bitter aftertaste. While the widening of the exemption of income tax for private servants required statutory authorization by the Parliament, the second point (on the re-importation of excisable goods from abroad under diplomatic customs franchise) could have been arranged administratively ‘without much fuss’ but it was still withheld.75

Solution for excise duties Following the Chancellor’s letter, Vallat re-examined the legal position and found an interpretation of Article 36 which opened the way to a solution. One of the main points at Vienna had been the defeat by 28 votes to 4, with 26 abstentions, of the UK amendment to exclude re-imported goods from the customs exemption under Article 36(1). In Committee discussion, a debate on the UK amendment had hardly evolved; only Glasse mentioned at the 31st meeting of the Committee of the Whole that the term ‘customs duties’ included duties levied on Articles on foreign origin. While the UK amendment was voted down in Committee, Glasse’s interpretation of the definition of excise duties had never been challenged. Thus, Vallat interpreted, on the one hand, that the UK amendment had not been defeated and, on the other hand, that it was not defeated inasmuch as the Committee had accepted (by not challenging it) Glasse’s definition.76 A little later, in March 1963, Heath urged Maudling to drop his opposition to a widening of exemption of excise duties on the grounds of considerations of national policy. Heath, who shared the FO’s reluctance

Reginald Maudling replaced Selwyn Lloyd as Chancellor of the Exchequer during the ‘Night of the Long Knives’, as it was called. On 13 July 1962 Macmillan sacked seven Ministers, including Selwyn Lloyd, the Chancellor of the Exchequer. See S. Dockrill, Britain’s Retreat from East of Suez: The Choice between Europe and the World (Houndmills: Palgrave Macmillan, 2002), p. 36. 75 Glasse (FO), minute, 15 February 1963, TNA, FO372/7814. 76 Vallat (FO), minute, 20 February 1963, TNA, FO372/7814. 74

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to attach reservations, reminded Maudling that British practice on excise duties was more restrictive than of most other countries and that the doyen of the diplomatic corps had raised the point with the Foreign Secretary in the past. Duty-free whisky was in other (non-dry) capitals a universally regarded major facility in diplomatic entertaining. Besides the inevitable resentment of the diplomatic corps, Heath reminded Maudling of the negative consequences for London as an international capital. Heath was eager to make London a home for international organizations and had carefully considered privileges and immunities as key incentives in the pursuance of this plan. The question, however, was not whether to be liberal on the excise duty point but to agree on what had become universal practice. While the costs were expected to be little (the loss in customs was calculated to cost £290,000 a year), the benefits in terms of goodwill and international reputation would be considerable.77 While a reaction from the Treasury was still outstanding, Vallat suggested proceeding with the drafting of the Bill as there was only the excise duty-point outstanding. A draft submission was prepared for Heath to submit to the Cabinet Home Affairs Committee approving the drafting of a Bill.78 Because of the arguments of general policy brought forward by the Lord Privy Seal, and Vallat’s legal advice on the interpretation of the excise duty provision in the VCDR, in early July 1963 the Chancellor of the Exchequer eventually confirmed in a letter the end of the excise duty debate.79 Although this did not mean Britain would agree to the extension of such tax exemption on re-imported goods (the issue was to be settled separately), it was now possible to go on with the ratification process without planning to submit a reservation. In the legislative programme for 1963–4, the Immunities and Privilege Bill was neither classified as essential and contingent, nor did it secure a place in the main programme. It was listed under the category of Bills in reserve. As the Bill did not enjoy priority, at the end of May 1963 there seemed little prospect of it being dealt with in that session’s legislative programme. Not until the next spring was the Diplomatic Privilege Bill submitted to Parliament. Eventually, on 11 May 1964, the Diplomatic Heath (lord privy seal) to Maudling (Chancellor of the Exchequer), letter, 11 March 1963, TNA, FO372/7814. 78 With Heath’s approval the Home Affairs Committee could be asked to approve the drafting of a bill. Glasse (FO), minute, 10 April 1963, TNA, FO372/7815. 79 The United Kingdom looked also to the United States who were slightly ahead in the ratification process of the VCDR, which was expected to pass through the Senate in the autumn of 1963. British embassy Washington to FO, letter, 24 May 1963, TNA, FO372/7815. 77

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Privilege Bill received its second and final reading in the House of Lords which was the basis for its successful implementation into British law.80 After approval by the Lords, the Bill also passed through the Commons. Presented in one main overview, the Bill contained only those Articles of the VCDR (Articles 1, 22–24 and 27–40) which, according to British law, required a text form (which Common Law does not) to become British domestic law.81 The Diplomatic Privilege Act 1964 came in force on 31 July 1964 and replaced the corresponding passages in the Diplomatic Privilege Act of 1708, the Income Tax Act of 1952 and the Diplomatic Immunities Restriction Act 1955. In the meantime, the Vienna Convention had entered into force on 24 June 1964. The United Kingdom deposited its instrument of ratification of the Convention (and the Optional Protocol concerning the Compulsory Settlement of Disputes) on 1 September 1964.82

Conclusion The British delegation was able to provide leadership during the Vienna Conference for various reasons. The general atmosphere of the Conference was positive and there was a remarkable absence of Cold War tensions. Since the US delegation was not well composed and remained isolated on many issues, it was the UK delegation that stepped in to fill the leadership vacuum between the Western European delegations and, in cooperation with the Soviet Union delegation, provided active leadership for the Conference as a whole. With Vallat, the UK delegation was led by one of the outstanding personalities of the Conference who impressed others with his conference manner and legal knowledge. As member of the Drafting

In accordance with the so-called Ponsonby Rule, all treaties subject to ratification were laid before the Parliament for 21 sitting days by means of a Command Paper. 81 The main provisions are made in clauses 1, 2 and 3. The provisions of the other clauses are of a technical and/or inconsequential nature. The core of the Bill is in Clause 1, read with subsection (1) of Clause 2 and Schedule 1. The general purpose and effect of these provisions is to substitute for the existing law the relevant parts of the Vienna Convention which are contained in the Articles of Schedule 1. 82 The other permanent members of the UN Security Council ratified as follows: the US Senate agreed in 1965 to ratify the Vienna Convention but the United States ratified it only in 1972. France ratified the Vienna Convention on 31 December 1970 with a reservation to Article 38. The Soviet Union ratified on 24 March 1964 and placed reservations against Article 11 (size of mission) and Articles 48 and 50 (final clauses) on the restricted accession regulation (the so-called Vienna formula). The Republic of China ratified the Convention on 19 December 1969. 80

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Committee, he knew how to exert influence effectively. He was joined in the Drafting Committee by Gunewardene of Ceylon and Dadzie of Ghana, which facilitated the cooperation with Commonwealth delegations. Moreover, with the young George Cunningham, the British CRO had sent a most effective liaison officer who greatly contributed to the successful cooperation between Commonwealth delegations and who convincingly completed the mammoth task of ensuring the accommodation of all vital Commonwealth amendments. As a result, particularly towards the beginning of the Conference, cooperation within the Commonwealth group was very good. Generally speaking, the British delegation was well briefed, well equipped and able easily to contact London so as to react in a timely manner to the evolving negotiations. Not always to the liking of the US delegation, the British delegation was able to form alliances with all regional groups and was not constricted by political Cold War cooperation. Vallat often cooperated with members of the Western European group (whose meetings he chaired) as well as with the Afro-Asian delegations, some of whom also belonged to the Commonwealth group. Throughout the Conference, the British delegation worked effectively and smoothly with the Soviet delegation creating majorities in order to cover Britain’s interests. The leader of the Soviet delegation, Tunkin, was, like Vallat, a high-class legal expert who took a moderate and reasonable stance on the ILC Articles. Together, Tunkin and Vallat often defended the ILC draft against the amendments of the Afro-Asian delegations. The British delegation knew how to counterbalance the numeric AfroAsian majority most of the time, but despite skilful lobbying and sound knowledge of the Conference procedures, it was not able to push through all of its objectives. The majority of the smaller delegations were eager to protect the position of the receiving state, which led to restrictions on the free appointment of staff of the diplomatic mission (Articles 7 and 11) and on the use of the diplomatic wireless in Article 27. Unsatisfactory, too, were the final outcomes of the fiscal aspects of Articles 34 and 37. It was a vital Treasury principle, and point to its own right, to avoid the widening of tax privileges. But from the point of view of the FO, the Treasury instructions were unreasonable and the question arose whether they indeed covered vital British interests. The analysis of the negotiations has shown, at least, that they were points that could not be carried through the Conference. Acknowledging this fact, Vallat insisted on having ministerial instructions; it made little sense to push a point that was doomed to fail. Back in London, the outcome of the negotiations over income tax privileges for private service staff led to a clash between the FO and the Treasury as the Treasury feared

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that these could lead to duty exemption for products such as Scotch whisky. While there was a moment in which the entire ratification of the Vienna Convention was jeopardized by these irreconcilable differences between the FO and the Treasury, it was thanks to a skilful legal reinterpretation of the negotiations regarding, and the final outcome of, Article 37 that broke the log-jam and paved for Britain’s ratification. Eventually, Parliament passed the Diplomatic Privileges Act in July 1964, and Britain ratified the Vienna Convention on Diplomatic Relations (including the Optional Protocol on the Settlement of Disputes) on 1 September that year. Concluding, it was an interdepartmental dispute combined with the low parliamentary priority that slowed the United Kingdom from swiftly ratifying the VCDR earlier, resulting in the failure to live up to its reputation as a leading supporter of international law.

7

Conclusion

[C]odification of international law on diplomatic intercourse and immunities is necessary and desirable as a contribution to the improvement of relations between States. UNGA Resolution 685 In the introduction to this book, it was asserted that the Vienna Convention on Diplomatic Relations (VCDR) was part of a wider process in which states under the auspices of the United Nations (UN) strove to codify international law in order to clarify customary law, strengthen its global acceptance and, as a result, limit friction between states. The preamble to the VCDR reminds us that the Convention’s purpose has been ‘promoting friendly relations among nations’. At first sight, this might appear in today’s context a lofty phrase; however, this aspect had already been covered by United Nations General Assembly Resolution 685 in 1952 calling for priority to be given to codifying diplomatic intercourse and immunities. It is noteworthy that the VCDR was prepared for, and negotiated during, some of the ‘hottest’ years of the Cold War; its primary aim was to avoid tension in the ‘diplomatic machinery’, that is, the means by which the United States and the Soviet Union, the superpowers of that time, came in direct and daily contact with each other. Avoiding friction in order to facilitate smooth relations, particularly between the superpowers and, later, also in the diplomacy of the numerous newly independent Afro-Asian states, had become a matter of primary concern during the 1950s and early 1960s. Thus, the VCDR met pressing needs of the time. It was a useful means of helping to integrate into the world of diplomacy the inexperienced third world. It gave them a useful and standardized guide to the law relating to diplomatic privileges and immunities, the development of which they had previously had no influence. Although it took three years for the VCDR to come into force,

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compared to other international conventions this is a relatively short time and, in any case, was quicker than the traditional establishment of diplomatic customs would have been. This research has chronicled the complete codification process of diplomatic intercourse and immunities from its inclusion in a provisional list of topics for codification in 1949, over the negotiations in the International Law Commission (ILC) until 1958, its negotiation at the 1961 Vienna Conference and its coming into force in 1964. By following the preparations and negotiations of the United Kingdom before, during and after the Vienna Conference this study has been able to see the codification process through the eyes of an influential stakeholder in order to analyse its political motivation shedding light on Britain’s role and its contribution to the negotiations. During the preparatory codification stage the negotiations within the ILC and the Sixth (Legal) Committee gathered momentum through Cold War tensions. Having been diplomatically harassed by the Soviet Union, the Republic of Yugoslavia introduced to the agenda of the seventh (1952) United Nations General Assembly a draft resolution seeking to prioritize the codification of diplomatic privileges and immunities. For the United States this was a welcome opportunity to make propaganda and win moral ascendancy over the USSR, so it supported the resolution and supplied further evidence of Soviet misconduct. The codification process, however, moved slowly and when, in 1958, it emerged that codification would take the form of a binding convention, the United States argued the draft Articles were too obscure and proposed going no further than restating existing principles. By then it was the USSR that wanted a convention. Meanwhile, the question had been raised of codifying not only diplomatic privileges and immunities but also consular relations. In the 1957 General Assembly, attention had been drawn to the close connexion between the two, and hope had been expressed that the Commission’s drafts on those two subjects would be submitted together to the General Assembly. During the next, 1958, ILC session, the issue was raised by JeanPierre François of the Netherlands, but for procedural reasons the ILC was not able to submit the drafts on both subjects simultaneously as it would have implied a huge delay in producing the draft Articles on privileges and immunities. In terms of length, the number of Articles almost doubled during the codification process. Initially, special rapporteur Sandstroem presented 28 draft Articles at the ILC’s seventh session in 1955. These had grown to 37 Articles during the ILC’s first discussions in 1957. Enriched through

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the discussions in the Sixth (Legal) Committee during the 1957 UNGA session, and following the commentaries provided by 21 governments, the final 1958 ILC draft had expanded to 45 Articles. After the diplomatic negotiations at Vienna, the text of the Convention (including a preamble and the obligatory final clauses regulating the accession to and the depository of the VCDR) contained 53 Articles. Furthermore, the Vienna Conference produced two optional protocols (on the obligatory settlement of disputes and the acquisition of nationality) as a result of deleting two former draft Articles. The 1961 United Nations Conference on Diplomatic Intercourse and Immunities (UNCDII) was remarkable for the excellent cooperation among delegations and its pleasant atmosphere. While several Articles in the draft Convention were prepared with the objective of avoiding East‒West tensions, it was not the bipolarity of the Cold War that marked the negotiations at the 1961 Vienna Conference. Instead, it was the fact that it was the first UN conference of plenipotentiaries, outside the United Nations General Assembly, in which the Afro-Asian group had a clear numeric majority; acting as a bloc, they could muster the votes of 29 out of the 81 delegations. Although the Conference was never permanently divided, during the negotiation of certain Articles an evident disagreement between delegations of richer and poorer states was perceptible in which the interests of the greater, older states collided with those of the minor, newer states. Delegations of the former had often in mind the protection of diplomatic personnel; the latter was eager to strengthen the rights of the receiving state. As a result of its numeric majority and the differing approaches on diplomatic immunities, the Conference agreed on restrictions on the freedom to appoint staff (Article 7)  and the freedom of communication (Article 27.1). Nevertheless, negotiation positions were not too far apart from each other, which permitted compromise solutions normally to be supported by a substantial majority which often approached, or achieved, unanimity. Eventually, on 14 April 1961, the VCDR was adopted unanimously with only Tunisia (which had been outvoted particularly towards the end of the Conference, that is, on the final clause and on Article 37) abstaining. The unanimous result was an expression of the positive and collaborative atmosphere. This was, on the one hand, thanks to the technical nature of the Conference which was relatively removed from current political issues. On the other hand, the detailed and thoughtful preparation of the draft Articles by the ILC was important in helping to avoid any surprising

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conflicts. In most cases, the ILC had decided to codify those aspects which dealt with the codification of settled diplomatic practice reducing the potential for conflict. Exceptions to the smooth negotiation process on the substantive Articles (excluding the preamble and final clauses) were rare. The Conference had difficulties agreeing on points on which the ILC had opted for progressive development of the law. This gave rise to debate, for example, in respect of ILC draft Article 45 on the obligatory settlement of disputes by the International Court of Justice whose compulsory jurisdiction was only accepted by a third of UN Member States, and certainly not by communist states. As a result, the Article was not adopted in Plenary but was relegated to an optional protocol. Debates also emerged on the few points on which diplomatic practice was not settled yet or where it differed regionally. The greatest debate arose over Article 37 on the diplomatic immunities of non-diplomatic staff, which attracted over 40 amendments and several roll-call votes. Negotiating this Article proved to be difficult because, on the one hand, it included defining the concept of ‘family’ about which delegations had, culturally speaking, different interpretations. On the other hand, state practice before the Vienna Convention differed on the extent to which non-diplomatic staff (i.e. administrative, technical and service staff) were granted privileges and immunities. While some states (including Britain, the United States and the USSR) traditionally granted complete diplomatic immunity, delegations of smaller states or those which accommodated numerous officials of international organizations (including France, Italy and Switzerland) attached great importance to restricting privileges and immunities of administrative and technical staff mainly to official acts. The drastic span of opposing views made it difficult to reach agreement, but leaving this aspect of diplomatic privileges and immunities within the realm of customary law and bilateral agreements would have torn a large gap in the Convention. It was thanks to the common interest of the great majority of states not to endanger the whole work of the Conference, and the active leadership and compromise solution worked out by the British delegation, that an acceptable formula was found. For Britain, the codification of diplomatic intercourse and immunities by an international convention was not the initially favoured form so that it had to pursue varying tactics during the preparatory negotiations. The legal adviser to the Foreign Office, who was also a member of the ILC, Sir Gerald Fitzmaurice, initially lobbied for codification by a resolution on diplomatic intercourse and immunities and, as a result, Britain’s

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commentary on the provisional 1957 ILC draft Articles stated only how British diplomatic practice differed from, or accorded with, the provisions. By 1958, when it was becoming apparent that this was not going to happen, and awareness grew that the Articles would find expression in an internationally binding convention, the British contributed constructive comments on the 1958 ILC draft. In so doing, and surprisingly given Britain’s then considerable attachment to the Commonwealth, it was relatively late in recognizing the likely effect the draft future Convention would have on intraCommonwealth diplomacy. Only in late 1960 did the Commonwealth Relations Office (CRO) start considering the potential application of the VCDR to relations between Commonwealth members. Faced with two options (either amending the draft Convention throughout the whole text or inserting a general reservation excluding the application of the Convention between Commonwealth countries), the CRO accepted that the Convention should be applied within the Commonwealth. Pakistan and Australia had already indicated in 1957 that they wanted this, and although the British were tempted to strive for another solution, anything other than the full application of the Convention to intra-Commonwealth diplomacy would have upset some of the newly independent Commonwealth countries such as Ghana. Generally speaking, during the preparation of the commentary on the 1958 ILC draft, as well as during the negotiations at Vienna, the Foreign Office was confronted with the difficult task of following instructions to protect Britain’s customary international practice, while pursuing tactics that stood a chance of success in international negotiations and, at the same time, keeping an eye on the need to protect its interests as a sending and receiving state. At Vienna, the UK delegation was well briefed and impressed other delegations by its solid legal drafting skills and by the active leadership provided by its head of delegation, Francis Vallat. Of course, delegations attending a conference to codify law ought to be composed as far as possible of legal experts. This was a fact dismissed by the US delegation which, as a result, appeared weak on matters of substance. The British delegation benefitted also from technical expert advisers. So, G. V. Hart of the Home Office, Evan Maude of the Treasury and George Cunningham of the CRO were in Vienna for part of the proceedings. In Vallat’s view, Cunningham’s lobbying and liaison work was most helpful. Cunningham was able to coordinate British objectives with those of other Commonwealth delegations and he managed to safeguard intraCommonwealth diplomatic practices without arousing too much outside

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suspicion of the peculiarities of Commonwealth diplomacy. However, the CRO needed Cunningham back in London, and although Vallat wanted him to stay on in Vienna, he was only there for the first half of the Conference. His departure, together with the increasing pressure on time towards the end, meant that cooperation between Commonwealth delegations was not as intense as before. The consequential relative lack of communication between Commonwealth delegations was another complicating factor in the negotiations of Article 37, and prompted Ceylon and Ghana to complain about limited cooperation with the British delegation at Vienna. Yet the UK delegation was throughout deeply involved in the Conference negotiations as a member of the Drafting Committee and as chair of the regional group meetings of the Commonwealth and Western European delegations. As regards the latter group, Vallat’s leading role was a result of the weakness of the US delegation. Although the United States was part of the Western European group (which resembled in its composition the North Atlantic Treaty Organization (NATO) alliance), the US delegation showed little interest in taking the initiative of engaging in group preparations. But Vallat’s cooperation with the Soviet delegation was also remarkable. While the preparatory negotiations in the ILC were marked by Cold War disputes, at Vienna the British and Soviet delegations not only cooperated to defend the compromise formulas of many ILC draft Articles but also cooperated effectively throughout the Conference (not entirely to the satisfaction of the US delegation) and in so doing were able to marshal majorities to protect British interests. Thanks to its well-connected delegation, the United Kingdom was able to safeguard most of its vital amendments (including the protection of the position high commissioners among the first category of heads of mission) with the exception of the freedom of appointment of staff (VCDR Articles 7 and 11) and the freedom of communication (Article 27), on which the receiving state gained increased influence. These reversals came courtesy of the Afro-Asian delegations against whose numerical majority the British delegation could not prevail. Nevertheless, the UK delegation returned to London satisfied, not least because the Convention reduced diplomatic immunities, meeting a pressing need in the opinion of the British public. As it turned out, the path to British ratification of the VCDR was not plain sailing because of interdepartmental disputes. The major point of irritation was that the VCDR widened some fiscal privileges in ways contrary to British instructions and in respect of which the United Kingdom stood alone. Nor was the Treasury subsequently prepared to make

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concessions on these fiscal issues. While the Foreign Office was reluctant to attach reservations to Britain’s signature of the VCDR (in keeping with traditional policy as regards multilateral treaties), the Treasury refused to condone the extension of diplomatic privileges on the tax-free re-import of UK goods such as Scotch whisky. Eventually, thanks to the goodwill of the Treasury and a legal reinterpretation of the course of discussions at Vienna, the British legislation process could proceed with the 1964 Privileges and Immunities Act, which reconciled the VCDR with UK law, and the UK ratified the VCDR on 1 September 1964. In 2014, 50 years after the coming into force of the Vienna Convention, the codification of diplomatic privileges and immunities is challenged by new developments. At a symposium to mark the 50th anniversary of the VCDR, Richard Langhorne, a leading scholar on the history of diplomacy, pointed out that the VCDR was negotiated at the end of a time when states had the sole right of legation and when other international actors were not yet recognized as subjects in diplomatic law. The VCDR was codified at a time when international actors were almost overwhelmingly sovereign states and only their accredited representatives (and those of the UN) enjoyed diplomatic privileges and immunities. In today’s postCold War epoch, our conception of diplomacy has widened and, thanks to new communication technologies and means of transport, an increasing number of non-governmental actors have entered the international field. It remains to be seen what influence the current economic crises will have on the way states conduct diplomacy, for example, whether and which trivial functions might be outsourced due to budgetary restraints without running into security risks. The codification of diplomatic immunities of representatives between states in 1961 was a contribution to the improvement of the conduct of relations between states. Should it, in the future, be desirable and necessary to codify the privileges and immunities of diplomatic agents of supranational or non-governmental entities, there is much to be learnt from the 15-year-long codification process (between 1949 and 1964) of the VCDR. It has shown that political issues gave impetus to this process, and that a balanced text (prepared by lawyers) reflecting diplomatic realities, was key to the successful negotiations at an international conference. The Vienna Conference also underlined the importance of not taking decisions prematurely and of reaching near-unanimous acceptance in order for the outcome to withstand subsequent public scrutiny and for states’ lasting adherence. This, in turn, calls for the actors involved in the codification process to understand why change is needed and to perceive a common

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goal and mutually beneficial interests. Alternatively, if there is such a common interest but no political momentum, other forms of codification might be available. Although less authoritative, resolutions and statements of principles might represent a first step towards establishing international practices which might, in due course, become ripe for codification by convention.

Appendix I: Overview of the 1961 Vienna Convention and the 1958 Draft Articles

1961 VCDR Preamble Article 1 Article 2 Article 3 Article 4 Article 5 Article 6 Article 7 Article 8 Article 9 Article 10 Article 11 Article 12 Article 13 Article 14 Article 15 Article 16 Article 17 Article 18 Article 19 Article 20 Article 21 Article 22 Article 23 Article 24 Article 25 Article 26 Article 27 Article 28 Article 29 Article 30 Article 31 Article 32 Article 33 Article 34 Article 35 Article 36 Optional Protocol on Nationality Article 37

1958 ILC Draft – Article 1 Article 2 Article 3 Article 4 Article 5 – Article 6 Article 7 Article 8 Article 9 Article 10 Article 11 Article 12 Article 13 Article 14 Article 15 – Article 16 Article 17 Article 18 Article 19 Article 20 Article 21 Article 22 Article 23 Article 24 Article 25 Article 26 Article 27 Article 28 Article 29 Article 30 Article 31 Article 32 Article 33 Article 34 Article 35 Article 36

Appendix I

208 1961 VCDR

Article 38 Article 39 Article 40 Article 41 Article 42 Article 43 Article 44 Article 45 Article 46 Article 47 Optional Protocol on Dispute Settlement Article 48–53 (final clauses)

1958 ILC Draft Article 37 Article 38 Article 39 Article 40 – Article 41 Article 42 Article 43 – Article 44 Article 45 –

Preamble Article 1 Article 2 Article 3 Article 4 Article 5 Article 6 Article 7 Article 8 Article 9 Article 10 Article 11 Article 12 Article 13 Article 14 Article 15 Article 16 Article 17 Article 18 Article 19 Article 20 Article 21 Article 22 Article 23 Article 24 Article 25 Article 26 Article 27 Article 28 Article 29 Article 30 Article 31 Article 32 Article 33 Article 34 Article 35 Article 36 Article 37 Article 38 Article 39 Article 40 Article 41 Article 42 Article 43 Article 44 Article 45 Article 46 Article 47

Preamble Article 1 Article 2 Article 3 Article 4 Article 5 Article 6 Article 7 Article 8 Article 9 Article 10 Article 11 Article 12 Article 13 Article 14 Article 15 Article 16 Article 17 Article 18 Article 19 Article 20 Article 21 Article 22 Article 23 Article 24 Article 25 Article 26 Article 27 Article 28 Article 29 Article 30 Article 31 Article 32 Article 33 Article 34 Article 35 Article 36 Article 37 Article 38 Article 39 Article 40 Article 41 Article 42 Article 43 Article 44 Article 45 Article 46 Article 47

Appendix II: Voting results in Committee and Plenary

Voting results in Committee of the Whole

100% Pro

Pro Contra

Contra Abstention

Abstention n/a

n/a

Unanimously

Unanimously

Without Vote

90%

80%

70%

60%

50%

40%

30%

20%

10%

0%

Voting results in Plenary

100% Without Vote

90%

80%

70%

60%

50%

40%

30%

20%

10%

0%

Appendix III: Who’s Who Legal Adviser Branch to the British Foreign Office, 1959–61 Title

1959

1960

1961

Legal adviser

Sir Gerald Fitzmaurice Francis Vallat

Sir Gerald Fitzmaurice Francis Vallat

Francis Vallat1

J. L. Simpson J. A. C. Gutteridge

Vincent Evans J. A. C. Gutteridge

J. A. C. Gutteridge Patrick. L. Bushe-Fox

Patrick Bushe-Fox H. G. Darwin J. R. Freeland Arthur Watts F. Burrows

Patrick Bushe-Fox H. G. Darwin J. R. Freeland F. Burrows Christopher Lush

I. M. Sinclair J. R. Freeland F. Burrows Christopher Lush Philip Allot D. H. Anderson

Deputy legal adviser Legal counselor Assistant legal adviser

Vincent Evans

Whitehall Departments, 1957‒64 Name

Department

Ashford, Albert Reginald Bamfield, C.

Board of Customs & Excise Assistant secretary

Barker, J. R. Bourne, Wilfrid Bowett, Derek Bowker, Reginald James Caccia, Harold

1

Function

Board of Customs & Excise Private secretary to the chairman British High Commission, First secretary, executive Ottawa assistant to the high commissioner Lord Chancellor’s Office Private secretary to the Earl of Kilmuir Foreign Office UN codification division British Embassy, Vienna UK ambassador British Embassy, Washington

Ambassador, 1956–61

Sir Gerald left office and was replaced by Francis Vallat in December 1960; as a consequence, as of the same date Vincent Evans became deputy legal adviser and J. A. C. Gutterridge legal-counsellor.

212

Appendix III

Name

Department

Function

Chadwick, Gerald William St. John

Commonwealth Relations Office

Clutterbuck, Sir Alexander Cole, D. L.

Commonwealth Relations Office Commonwealth Relations Office Foreign Office British High Commission, Colombo

Assistant secretary, 1956–60, assistant under-secretary, 1960–6 Permanent under-secretary

Courtness, C. W. Crosthwait, Timothy Leland Cunningham, Sir George Dale, William Dalgleish, Margaret Lamb Daniels, H. A. Davies, H. E. Dean, Sir Patrick Evans, L. J.

Commonwealth Relations Office Commonwealth Relations Office Commonwealth Relations Office General Post Office High Commissioner’s Office UK permanent representative to the UN, New York Foreign Office

Gilbert, Ian

Ministry of Pensions and National Insurance (MPNI) Glasse, Thomas Henry Foreign Office Godber, Joseph Bradshaw Hadow, R. M. Hale, H. E. J. Hart, G. V.

Foreign Office

Heath, Edward

Foreign Office

Hoare, Sir Samuel

Home Office

Douglas-Home, Sir Alexander

Foreign Office

British embassy, Paris Foreign Office Home Office

Private secretary 1957–60, head of personnel department Executive officer Deputy high commissioner, 1957, in 1961 assistant secretary, CRO CRO adviser to UK delegation, Vienna Legal adviser Chief executive officer Assistant secretary UK high commissioner in Ottawa Signed Vienna Convention on behalf of the UK Communications department, assistant Principal Head of protocol department (until 1960) Minister of State and Foreign Affairs (61–63) chargé d’affaires UN department Assistant legal adviser, HO adviser to UK delegation, Vienna Lord privy seal, February 1960–October 1963 Assistant under-secretary of state, international division Secretary of state for Commonwealth relations, April 1955–July 1960, lord president of the council, October 1959‒July 1960, secretary of state for foreign affairs, July 1960‒October 1963

Appendix III

213

Name

Department

Function

Horn, Alan Bowes Hoyer-Millar, Sir Frederick Jerrom, T. C. Jones, J. K. T. Kevin, John Charles George Kirby, G. M. Lambert, John D.

Foreign Office Foreign Office

UN department Permanent under-secretary of state Assistant secretary Legal adviser Head of delegation

Lindars, F. M. Lloyd, Selwyn

Foreign Office Foreign Office Treasury __

Maddock, E. J. Malcolm, Dugald

Foreign Office Foreign Office

Maude, Evan W.

Treasury

Maudling, Reginald

Treasury

Miles, G. E. Murray, J. D.

Treasury United Nations Department, FO Lord Chancellor’s Office Home Office Foreign Office Commonwealth Relations Office Foreign Office General Post Office Foreign Office

Newman, K. M. Ollett, Joyce Ormsby-Gore, David Oxley, Humphrey Leslie Malcolm Patterson, A. Perry, E. M. Rundall, Francis Ryrie, W. S. Simpson, John

Colonial Office Home Office Australian delegation to Vienna Conference Board of Inland Revenue Foreign Office

Colonial Office United Kingdom Mission to the United Nations, New York Foreign Office

Todd-Naylor, (Ms) Ursula Wakely, Leonard John Commonwealth Relations Dean Office

Principal Delegation secretary, research department Personal assistant Secretary of state for foreign affairs (until 1960) chancellor of the exchequer, 1960–2 lord privy seal and leader of the house of Commons, 1963–October 1964 Secretarial staff, UK delegation Vice-marshal of the diplomatic corps and head of protocol department (as of 2 January 1961) Chancellor of the exchequer’s private secretary, Treasury adviser to UK delegation, Vienna Chancellor of the exchequer, July 1962‒October 1962 Principal Head of department Senior legal assistant Higher executive officer Minister of state Senior legal assistant Under-secretary of state Principal Deputy under-secretary of state, chief clerk Principal Legal adviser Executive officer Assistant secretary

Appendix III

214 Name

Department

Function

Walker, Sir (Charles) Michael Warr, Leonard Albert

Commonwealth Relations Office Board of Inland Revenue

Watts, Arthur Desmomd Willian, E. G.

Foreign Office

Assistant under-secretary of state Principal, tax and stamps division Legal assistant

Wolters, G. E. M.

Board of Inland Revenue

Foreign Office

Head of communications department Assistant secretary, stamps and taxes division

Commissioners of the International Law Commission involved in negotiations: 1957‒61 Name

Nationality

1957

1958

1961 Vienna Conference

Ago, Roberto Alfaro, Ricardo J. Amado, Gilberto Bartos, Milan

Italy Panama Brazil Yugoslavia

member – member member

member member first vice-chair member

Edmonds, Douglas L. El-Erian, Abdullah El-Khouri, Faris Bey Fitzmaurice, Sir Gerald François, J. P. A. García-Amador, Francisco. V. Hsu, Shuhsi Khoman, Thanat Liang, Yuen-li

United States

member

member

delegate – – head of delegation –

Egypt

member

resigned

delegate (UAR)

Syria

member

member

–

United Kingdom rapporteur

rapporteur

–

Netherlands Cuba

member member

member member

– –

China (Taiwan) Thailand Director of the Codification Division of the Office of legal Affairs Iran

member member – member member – secretary to secretary to – Commission Commission

Matine-Daftary, Ahmed

member

member

head of delegation

Appendix III Name

Nationality

Padilla Nervo, Luis Pal, Radhabinod Sandstrom, A. E. F. Scelle, Georges Spiropoulos, Jean Tunkin, Grigorii

Mexico

1957

215 1958

1961 Vienna Conference

member

–

chair special rapporteur member Resigned second vice-chair

– –

Verdross, Alfred

second vice-chair India first vice-chair Sweden special rapporteur France member Greece member Union of Soviet member Socialist Republics Austria member

member

Yokota, Kisabúro Zourek, Jaroslav

Japan member Czechoslovakia chair

member member

president of the Vienna Conference – –

– – head of delegation

Other Conference officers Name

Delegation

Position

Dadzie, Emmanuel Kodjo

Ghana

Gunewardene, Sir Serenat Lall, Arthur

Ceylon India

Stavropoulos, Constantin Tunkin, Grigorii Verdross, Alfred

United Nations Soviet Union Austria

Head of the legal division, Ministry of Foreign Affairs Head of delegation Chairman of the Committee of the Whole Legal counsel Head of delegation President of the Conference

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Index absolute inviolability of mission premises  29, 35, 120, 128, 130 acquisition of nationality  45, 49, 51, 52, 110, 114, 116, 175, 201 ad hoc diplomacy  31, 101, 102, 103, 104, 117 adopted without a vote  115 agrément  71, 170 all state formula  83 appointment of military, naval and air attachés  43, 155, 177, 201, 204 arbitral procedure  23, 24 Asian-African Legal Consultative Committee on Functions, Privileges and Immunities of Diplomatic Envoys or Agents  101, 124, 131, 171 Bindschedler, Rufolf  36 Birecki, Henryk  101 blocking third  137, 175 Bluntschli, Johann Caspar  9 Burrows, Fred  39 Cabinet Steering Committee on International Organizations  39 Cairo incident  120, 129 Casas, Nelson  101 Chadwick, Gerald  67, 68, 158 Charter of United Nations  10, 11, 23, 25 classes of diplomatic agents  114 codification  by conference of plenipotentiaries  32 by convention  4, 29, 30, 31, 33, 35, 200, 203 by model code  29, 30 theory, general  12, 17

Cold War  2, 24, 29, 50, 105, 107, 108, 119, 123, 130–8, 151, 152, 162, 178, 196, 199, 201 Cole, D. L.  76 commencement and termination of functions of head of mission  43, 45, 65, 71, 114, 170 commercial activity of a diplomatic agent  114 committee on the Progressive Development of International Law  13 conference atmosphere  118–21, 201 conference deadlock  122 conference organs  Committee of the Whole  5, 87, 88, 92, 96, 100, 102, 109, 110, 117, 118, 124, 125, 129, 132, 137, 141, 143, 160 Credentials Committee  5, 86, 88, 91, 93, 97, 98, 99, 109, 120, 161, 164 Drafting Committee  5, 86, 87, 92, 97, 100, 102, 103, 104, 160, 164, 165, 178, 196, 204 General Committee  5, 86, 88, 91, 95 Plenary  34, 87, 91, 95, 100, 109, 110, 116, 124, 125, 134, 137, 142, 143, 147, 149, 151, 160, 161, 167, 173, 176, 178 Congress of Vienna  1, 108 consular relations  23, 26, 31 Courtness, CW  39 credentials  Chinese  161 Hungarian  99, 104, 105, 120, 161 Cunningham, George  69, 70, 158, 163, 165, 167, 172, 197, 203, 204

230

Index

Dadzie, Emmanuel Kodjo  166, 172, 197 Dankwort, Werner  83 Davies of Earnscliffe  70 Dean, Sir Patrick  189 decolonization  3, 15, 119 delegations  Afro-Asian Group  6, 13, 16, 83, 111, 112, 124, 125, 137, 144, 151, 162, 164, 168, 175, 199, 201, 204 Commonwealth Group  6, 16, 36, 41, 63–76, 158, 163, 164, 169, 171, 173, 197, 203, 204 Five great powers  6, 94, 111, 112, 141, 184 Latin American Group  16, 32, 110, 116, 125, 144, 148, 149, 162, 176 Soviet Union  11, 13, 18, 24, 25, 45, 85, 88, 89, 90, 98, 105, 110, 114, 121, 124, 125, 127, 133, 140, 162, 172, 173, 175, 181, 199, 202 United States  14, 18, 25, 32, 35, 50, 89, 98, 104, 111, 113, 121, 133, 140, 160, 161, 173, 199, 202 Western European Group  13, 100, 111, 144, 163, 168 departmental hierarchy  38 depository power  116, 137, 151, 152 diplomat in transit  45, 49, 51, 52, 77 right of innocent passage  53, 54 diplomatic asylum  24, 25, 26, 29, 32, 35, 51 diplomatic bag  34, 63, 142, 143, 174 diplomatic bank account  34, 43 diplomatic corps  34, 168 diplomatic privileges and immunities of non-diplomatic staff  108, 127, 146, 152, 167, 168, 183, 184, 202 diplomatic wireless  see freedom of communication Douglas-Home, Sir Alexander  157, 188, 191

duration of privileges and immunities  43, 56 duties regarding the laws of the receiving state  49, 61 El-Erian, Abdullah  15, 102 en bloc enlargement  13, 15, 111 Erice y O’Shea  110, 113 Erim, Nihat  15 establishment of diplomatic relations  130 Evans, Vincent  39 facilitation of accommodation  35, 123, 130, 188 family members forming part of the household  34, 58, 59, 144, 202 favourable treatment clause/ non-discrimination  69, 76, 77, 169 Final Act  81, 97, 114, 137, 186 Final Clauses  6, 114, 115, 131, 135–8, 187, 201, 202 Fitzmaurice, Sir Gerald  15, 16, 29, 30, 32, 34, 35, 36, 40, 41, 42, 50, 53, 65, 89, 95, 156, 166 franchise de l’hôtel  50 François, Jean-Pierre  31, 200 freedom of communication  34, 43, 45, 49, 60, 61, 62, 127, 138, 140, 151, 155, 168, 174, 175, 182, 188, 197, 201, 204 freedom of movement  35, 45, 121, 130 functions of a diplomatic mission  43, 71, 123 Glasse, Thomas  157, 158, 159, 182, 187 Godber, Joseph  187 Grotius Society  11 Gunewardene, Serenat  96, 164, 167, 172 Gutterridge, Joyce  39

Index Hallstein Doctrine  86 Hammarskjöld, Dag  83, 86, 107, 135, 189 Hart, G.  159, 203 heads of mission  36, 43, 65, 123, 171, 178, 204 Heath, Edward  194, 195 high commissioner  65, 66, 67, 68, 73, 171, 172, 173, 204 high Commissioner Office  64, 72, 73 Holy See  110, 152 Hoyer-Millar, Frederick  166 immunity from jurisdiction  46, 48, 61, 72, 127, 148 immunity of private servants  55, 57, 181 Institut de Droit International  9, 11 interdepartmental dispute  6, 190, 198 international conferences  5 The Hague Codification Conference, 1930  9, 10, 11 international conventions  22 Atlantic Charter  68 Code of Crimes against the Peace and Security of Mankind, 1996  10 Harvard Research Draft, 1932  28 Havana Convention on Diplomatic Officers, 1928  28, 32, 101, 119, 131, 160 International Labour Organization Convention No  60, 102 International Telecommunication Union Convention  63, 140, 141 Law of the Sea Convention, 1958  2, 4, 24, 28, 30, 32, 75, 86, 88, 95, 107, 118, 125, 126, 160, 161 Law of the Sea Convention, 1960  2, 83, 86, 88, 93, 95, 107 North Atlantic Treaty Organization Status of Forces Agreement  186

231

Règlement de Vienne, 1815  28, 83 Vienna Convention on Consular Relations, 1963  2 Vienna Convention on Law of Treaties, 1969  3, 10, 23, 91 Vienna Convention on Succession of States in Respect of Treaties, 1978  10 International Court of Justice  40, 75, 116, 123, 126, 135, 202 International Labour Organization  59, 60 International Law Commission  3, 10 commentary  19, 20 election  15, 16, 27, 35 enlargement  4, 13, 14, 16, 28 International Law Commission Drafts  1957 set of provisional drafts  31, 33, 41, 42, 76, 131, 200, 203 1958 draft  33, 41, 42, 109, 117, 128, 131, 151, 158, 201, 203 Special Rapporteur‘s draft report  28, 35, 200 inviolability of mission premises  5, 29, 34, 43, 45, 49, 50, 61, 127, 129, 131 means of transport  53, 130, 151 Kerley, E.  125, 126 Kevin, John Charles George  99, 134, 161, 164 Lachs, Manfred  95, 165 Lall, Arthur  95, 96, 97, 101, 126, 131, 164, 165, 167 Langhorne, Richard  119, 205 Lauterpacht  27, 28 League of Nations  3, 9, 11, 21, 127 Committee of Experts  9 legal adviser  function  40 team  38, 39

232

Index

legislation  182, 190 British Customs and Excise Act 1952  193 Diplomatic Immunities Restriction Act 1955  196 Diplomatic Privilege Act 1708  196 Diplomatic Privilege Act 1964  196, 198 Diplomatic Privilege Bill  1, 195 Income Tax Act 1952  196 Lloyd, Selwyn  191 Lush, Christopher  39, 51, 66, 157, 158, 159 Malcolm, Dugald  157, 178, 189 Matine-Daftary, Ahmed  33 Maude, Evan  57, 168, 179, 181, 184, 186, 203 multiple accreditation  114, 170 NATO  120, 128, 129, 186, 204 Neue Hofburg Palace  81, 82, 109, 118, 159 offices away from seat of mission  45 Ollett, Joyce  54 Oxley, Humphrey  66, 72, 75 Pal, Radhabinod  65 peace through law  1, 2 peaceful coexistence  133 Permanent Court of International Justice  11 persona non grata  74, 77 persons entitled to diplomatic privileges and immunities  56, 57 Ponce Miranda, Neftali  102 preamble  6, 78, 114, 115, 133, 134, 152, 201, 202 precedence  43, 114, 170 privileges and immunities of agents of international organizations  25, 119, 146, 193, 202

progressive development of international law  3, 10, 12, 18, 22, 35, 123, 152, 202 propaganda  3, 200 provisional list of subjects  9 Queen’s realms  71, 72, 73 Randall, Francis  157 Rao, Krishna  126 ratification process  British  47, 135, 155, 186, 187, 190–1, 195, 198, 204 General  176 reception of heads of mission  73 reciprocity  29, 34, 43, 119, 120, 123, 131, 138–43 regime of statelessness  23 reservations  135, 190, 192, 203 Right of legation  34, 107, 119 Riphagen, Willem  100 Roll-call vote  114, 126, 142, 143, 150, 173 Ruegger, Paul  126 rules of procedure  91, 92, 95, 97, 101, 110, 111 Sabel, Robbie  40 Sandstroem, Emil  4, 28, 30, 33, 65, 200 sessions of the ILC  1949  23 1953  26 1954  27 1957  20, 28, 35, 144 1958  31, 33 settlement of disputes  5, 30, 34, 75, 114, 116, 123, 124, 198, 201, 202 signature of VCDR  186, 189 Simpson, John  39 size of diplomatic mission  77, 107, 130, 177, 178, 188

Index social security regulations  45, 60 Special Rapporteur  see Sandstroem Spiropoulos, Jean  29 statute of ILC  12, 14 Article  8, 15 Article  19, 20 Article  20, 23, 33 Stavropoulos, Constantin  82, 83, 92, 93, 95, 96, 97, 98, 103, 104, 105, 176 subcommittee on special missions  109, 117 tax and custom exemption  5, 6, 46, 48, 56, 127, 144, 168, 181, 193 death duty  56, 77, 181 excise duties  46, 57, 179, 184, 192, 194, 195 income tax  46, 56, 77, 179, 191, 192 mission premises  56, 184 Scotch whisky  47, 168, 182, 191, 192, 195, 198, 204 theoretical basis  functional necessity theory  4, 133, 134, 152, 153 representative character theory  133 Tunkin, Grigorii  28, 33, 35, 88, 93, 133, 166, 197 United Nations General Assembly  1948  13 1949  17 1952  3, 24, 35, 200 1958  44 United Nations General Assembly Resolutions  Resolution 685(VII)  4, 199 Resolution 1450 (XIV)  5, 81, 85, 100 Resolution 1504 (XV)  100, 102 United Nations Secretary-General  18, 20

233

Urquía, Miguel Rafael  96, 165 Ustor, Endre  104 Vallat, Sir Francis  6, 39, 57, 58, 89, 91, 92, 100, 121, 127, 129, 130, 134, 141, 146, 148, 149, 155, 156, 157, 158, 163, 166, 167, 172, 175, 178, 179, 181, 183, 186, 187, 188, 194, 196, 197, 203 Vaucelles  150 Verdross, Alfred  88, 89, 92, 149, 150, 160 Vienna formula  83 voting procedure  110, 162 waiver of immunity  72, 117 Wakely, Sir Leonard  68 Waldock, Sir Humphrey  156 Warr, Leonard  56, 57 Watts, Arthur  39, 63 Whitehall Departments  36, 42, 47–77, 155, 156, 187 Colonial Office  64 Commonwealth Relations Office  48, 63–76, 157, 166 Dominion Office  64 General Post Office  49 Home Office  5, 44, 45, 48–55, 77, 157, 158, 175 India Office  64 Lord Chancellor’s Office  5, 44, 77, 193 Ministry of Defence  48 Ministry of Pension and National Insurance  45, 49, 58–60 Treasury  5, 6, 44, 48, 49, 56–8, 157, 158, 168, 179, 182, 191, 197, 204 Yugoslavia  3, 24, 32, 35, 94, 200 Zade, Nafeh  103 Zemanek, Karl  110, 131, 152 Zourek, Jaroslav  27, 28, 30, 33