Limits of diplomacy

The law on diplomatic practice and behaviour remains uncertain and uncodified; practice abounds in contradictions.

SIR Ernest Satow’s A Guide to Diplomatic Practice , which was published in 1917, still holds the field. This book bids fair to rank with it as another work of encyclopaedic range and accepted authority. Satow guided diplomats through the labyrinths of the diplomatic process. He had served as Ambassador to China. Paul Behrens’ work guides the diplomat on the laws and precedents that should guide him where the field of diplomacy touches the legal sphere. The author is Lecturer in Law at the University of Edinburgh.

How far can a diplomat, based in a foreign country, go in contacting politicians in the opposition, critics of the regime, and members of the media? What are the curbs that bind him on public comments on the country’s politics, on interceding with the government on behalf of citizens of his country—the book deals with all this and much else. It deserves a place in the library of every diplomatic mission and foreign office. The documentation is meticulous.

The author explains: “This study examines the concept of diplomatic interference; it analyses the rationale of its prohibition and outlines the interests on the side of the sending state and the international community which may induce diplomats to engage in conduct which their hosts consider meddling in internal affairs. It investigates the applicability of mechanisms which mediate between the competing interests and provides an overview of the main fields in which charges of interference have arisen in the past.

“In so doing, it relies not only on treaty law and academic opinion in the field, but draws on instances of alleged interference which have played a role in diplomatic history.” The Vienna Convention on Diplomatic Relations, the governing legal instrument, is not exhaustive. It is supplemented by international law and practice, which is shaped by international politics and the power equation between the sending state and the receiving state. The United States emerges as the worst offender, followed by the United Kingdom. In October 2000, the U.S. Ambassador to Indonesia, Robert Gelbard, pressured the government to appoint Agus Wirahadikusumah as Chief of the Army. Defence Minister Mahfful threatened him with expulsion.

The work covers “diplomatic interference in state practice over the centuries”, discusses the codification of the rule of non-interference, and proceeds to discuss in depth the range of diplomatic interference—representation, protection of interests, reporting, and involvement in human rights in the receiving state. Other topics are lobbying the government, partisan behaviour, propagating in the media the views of the diplomats, government, areas of legitimate funding, diplomatic asylum, threats, insults and criticism.

Appended to the book are selected instruments on diplomatic practice, including the Vienna Convention (1961) and the Vienna Convention on Consular Relations (1963). Pages 277 to 386 cover brief reports of 311 cases, in some of which Indian diplomats figure.

Diplomatic language Diplomatic language has changed a lot. Nearly 80 years ago it was considered grossly improper to use the word “damn”, as Dr Paul Schmidt, Hitler’s renowned interpreter, recorded in his memoirs Hitler’s Interpreter . The British Ambassador to Germany, Sir Neville Henderson, in his final interview with Foreign Minister Herbert von Ribbentrop scolded him. The Minister had remarked: “I can tell you, Herr Henderson that the position is damned serious.” Henderson lost his temper and, lifting a forefinger in admonition, he shouted, “You have just said ‘damned’. That’s no word for a statesman to use in so grave a situation.”

“Ribbentrop’s breath was taken away. One of the ‘cowardly’ diplomats, an ambassador, and an arrogant Englishman at that, had dared to reprimand him as he might a schoolboy. Ribbentrop jumped up from his chair. ‘What did you say?’ he roared.

“Henderson too had risen to his feet. Both men glared at each other. According to diplomatic convention I too should have risen; but to be frank I did not quite know how an interpreter should behave when speakers passed from words to deeds—and I really feared they might do so now. I therefore remained quietly seated and pretended to be writing in my notebook.” Fortunately, things went no further and the two sat down and resumed their interrupted dialogue on more consequential matters.

Sir Neville himself fell from grace over inapt language. He wrote in a despatch dated May 28, 1939, which was published after the Second World War broke out in the Government Blue Book Documents concerning German-Polish Relations and the Outbreak of Hostilities between Great Britain and Germany on September 3, 1939. It concerned a meeting with Hermann Wilhelm Goering. “He insisted on showing with much pride the great structural alterations which he is making to his house. He also produced with pride drawings of the tapestries, mostly representing naked ladies labelled with the names of various virtues, such as Goodness, Mercy, Purity, etc. I told him that they looked at least pacific, but that I failed to see Patience among them,” Sir Neville Henderson reported to Foreign Secretary Lord Halifax. Even at a time when war had broken out, the British public found time to ask what business His Majesty’s Ambassador had to see drawings of “naked ladies”. Sir Neville blushingly explained that the expression meant no more than mere drawings of nudes and not known women. Blushingly, because Sir Neville was quite a prude; a diplomat cannot be too careful in the language he uses.

In March 2007, Zimbabwean Foreign Minister Mumbengegwi summoned a group of Western diplomats and warned them that the Vienna Convention prohibited interference. The U.S. diplomat, Christopher Dell, walked out but voiced his opinion about the charges a few days later in a radio interview. The Zimbabwean government, according to Dell, tended to rely greatly on “certain Articles of the Vienna Convention on Diplomatic Relations about non-interference in the internal affairs of the receiving state, conveniently ignoring other Articles of the Convention which obligate the receiving state…to allow diplomatic missions to ascertain…the conditions and developments in the receiving state”.

The author remarks: “The function of observation to which Dell alluded is the first of two aspects which Article 3(1)(d) incorporates (the other refers to the reporting of the findings to the sending state). At first sight, it would appear strange that observation could ever give rise to charges of interference—it is a task which seems to involve diplomats in a fairly passive role as recipients of information. But closer inspection reveals a more complex situation. There are, in particular, two facets of this function which need to be taken into account.

“First of all, the task of observation may carry a message which the receiving state interprets as interference with its internal affairs. It can in particular create the perception that the sending State had a special interest in the matter in question. An ambassador cannot observe everything with his own eyes; but if he decides to observe certain matters for himself—be it poor housing conditions, court trials with political connotations or the prison cell of an opposition leader—he conveys the message that this object has been worthy of selection. If the object is the opposition of the receiving state, the message will often be seen as one of support.”

Indian diplomats Consider the cases affecting Indian diplomats. “The Indian High Commissioner in Fiji [T. Sreenivasan] is expelled amid official allegations of interference. Sreenivasan had reportedly protested against the firebombing of Indian temples in Fiji and had linked these incidents to an initiative to adopt a Constitution which would have given a preferential position to the political rights of indigenous Fijians over those of other groups.”

“India expels a U.S. diplomat [Wayne May] amid allegations of involvement in the Khobragade case [Devyani Khobragade was an Indian consul in the U.S. who had been accused of exploiting her Indian-born housekeeper, Sangeeta Richard]. Wayne had reportedly granted visas to the Richard family. Wayne faces accusations of interfering with the work of legal authorities in India. India expels the community liaison officer of the U.S. Embassy [Alica May, wife of Wayne May]. The expulsion is seen as retaliation for the treatment of Devyani Khobragade in the United States.

“However, it is also reported that Ms May had, on her Facebook page, given the picture of a cow the caption ‘stupid cow’ and had stated that she would like to seen an article ‘on how many vegetarians rape women here every day’.”

“The Nepalese Foreign Minister [Upendra Yadav] criticises the Indian Ambassador to Nepal [Rakesh Sood] over a meeting with the country’s former head of state. Yadav reportedly states that the Ambassador had met the former king Gyanendra without informing the Foreign Ministry beforehand and had thus been in breach of diplomatic norms.”

“The Indian High Commissioner in Bangladesh [Pinak Ranjan Chakravarty] comments on persons protesting against the Tipaimukh dam [a project involving the building of a dam in India which would affect a river flowing through Bangladesh]. Chakravarty states that ‘so-called water experts’ attempted to poison the minds of the people of Bangladesh and speaks of ‘criticism of India and India-phobia’ which had ‘become an instrument for deriving political mileage for a particular section’. The Bangladeshi Foreign Minister [Dipu Moni] reportedly states that Chakravarty may have deviated from diplomatic norms.” One wishes the author had analysed the merits of the main case concerning Devyani Khobragade itself.

Attacks on ‘third countries’ The recent attacks on Pakistan by the Afghan Ambassador to India squarely raise the issue of attacks by foreign diplomats on “third countries”. The practice was begun by his predecessor 70 years ago on the Pashtunistan dispute. After the Polish Ambassador to the U.S. had, in public addresses, attacked the Federal Republic of Germany, the U.S. Secretary of State issued a warning letter to him on April 19, 1961, stating that “representational activities” did not extend to making public attacks “upon a government with which the United States maintains friendly relations”.

In 1940, Jacob Suritz, the Soviet Ambassador to France, was expelled after he had sent a telegram en clair [uncoded] to Joseph Stalin congratulating him on foiling the plans of “Anglo-French warmongers” and on the aggressive Soviet policy concerning Finland. In this instance, the claim could have been advanced that the diplomatic message had concerned “merely” foreign affairs. France’s reaction, however, was decidedly negative. After the message was initially held up by the censors, it was eventually delivered by the French charge d’affaires in Moscow himself, along with a call for the withdrawal of the Soviet Ambassador.

“But the case highlights a fundamental problem in this field: Some issues of ‘foreign policy’ are considered by receiving states to lie squarely within their own domain. It is a difficulty which was recognised by some International Law Commission members: Liang for one emphasised that, as for the reference to ‘domestic or foreign politics’, logically speaking the formulation and directing of the foreign policy of a state came within the meaning of ‘matters within its domestic jurisdiction’. The very character of the subject with which the diplomat is dealing, can therefore impair the clarity of the distinction.”

It is well known that Jawaharlal Nehru was very touchy about foreign diplomats’ contacts with politicians in the opposition and with journalists critical of him. John Kenneth Galbraith, the U.S. Ambassador, avoided them and ordered his colleagues to do likewise; an edict wisely and bravely flouted by the most brilliant diplomat on his staff, Howard Schaffer.

In 1984, the U.S. Ambassador to France, Evan Galbraith, was moved to voice his opinion after members of the Communist Party joined the French government. Galbraith stated that a French Communist was a “poor Frenchman gone wrong” and that “[e]verybody knows very well that the Soviet foreign policy is followed by the French Communist Party”. Galbraith’s comments earned him a summons by French Prime Minister Pierre Mauroy, who told him that such remarks were “unacceptable”.

Attendance at trials of political significance posed a problem. In 1998, Malaysia prevented foreign diplomats from attending the trial of Anwar Ibrahim, former Deputy Prime Minister.

Diplomatic asylum International law on grant of diplomatic asylum is none too clear. In New Delhi, Stalin’s daughter, Svetlana, was granted asylum by the American Embassy. In our times, Julian Assange, founder of WikiLeaks, was granted asylum by the Embassy of Ecuador in London on June 19, 2012.

Consider two other cases which reveal a lot. In 1956, Cardinal Mindszenty sought asylum in the U.S. Embassy in Budapest, a few days after the Hungarian uprising when Soviet troops were about to crush the revolution. Shortly before his appearance at the embassy, Mindszenty had, in a radio speech, underlined the concepts of “national independence and democracy”. Imre Nagy, the reformist Prime Minister who had been in office during the uprising, had likewise taken refuge in diplomatic premises. Together with colleagues of his administration, he had sought asylum in the Yugoslav Embassy in Budapest. The new Hungarian government promised Nagy safe conduct if he wished to leave the country; yet when he did emerge from the embassy, he was arrested and later executed. In 1930, the U.S. State Department had said that “affording of asylum is not within the purposes of a diplomatic mission”.

The author notes that the United Nations General Assembly Resolution 3321, which invited members of the U.N. to express their views on diplomatic asylum, had also mentioned the “humanitarian” aspects of that matter, and several states referred to this facet of asylum in their replies. But not all of them were happy to base a customary right to grant asylum on humanitarian concerns.

Czechoslovakia, for instance, pointed out that it was “fully aware of the humanitarian aspects of the institution of asylum”, but still asserted its view that, in the absence of special agreements, diplomatic asylum was not recognised in international law.

The author points out: “Acceptance of a customary right to grant asylum on humanitarian considerations would thus be fraught with difficulties—beginning with the very question whether ‘humanitarian concerns’ are capable of an interpretation which yields a sufficient degree of precision to allow the assumption of a rule with normative character. The replies to the General Assembly Resolution certainly suggest that States harboured widely varying ideas of what the ‘humanitarian aspects’ of asylum should encompass.” The law remains uncertain and uncodified; practice abounds in contradictions.