Diplomatic handbook

The major provisions of the Conventions are as follows:

 

Coastal states exercise sovereignty over their territorial sea up to twelve nautical miles in extent, but foreign vessels are allowed 'innocent passage' through these waters for purposes of peaceful navigation, and permission to overfly is subject to the approval of the coastal state.

Ships and aircraft of all countries are entitled to 'transit passage' through straits used for international navigation, as long as they proceed without delay and without threatening the coastal states. States border- ing the straits will be able to apply generally accepted international regulations and pollution control, but may not hamper or impede transit.

Archipelagic states, made up of a group or groups of closely related islands and interconnecting waters, have sovereignty over the sea area enclosed by straight lines drawn between the outermost points of the islands. Ships of all other states enjoy the right of passage through sea lanes designated by the archipelagic state.

Coastal states have sovereign rights in a 200-nautical-mile exclusive economic zone (EEZ) with respect to natural resources and most economic activities, and are also entitled to have a certain degree of jurisdiction over scientific research and environmental preservation. All other states have freedom of navigation and overflight in the zone, as well as freedom to lay submarine cables and pipelines. When coastal states cannot fully utilise the resources available, they should provide access for other states, with a certain preference for land-locked states.

Delimitation of overlapping economic zones is to be effected by agreement on the basis of international law in order to achieve an equitable solution.

Coastal states have sovereign rights over the continental shelf (the national area of the sea-bed) for the purpose of exploring and exploiting it without affecting the legal status of the water or air space above. The shelf extends at least to 200 nautical miles from the shore, and up to 350 nautical miles under specified circumstances. A Commission on the Limits of the Continental Shelf makes recommendations to states on the shelf's outer boundaries. Coastal states are to share with the international community part of the revenue they derive from exploiting oil and other resources from any part of their shelf beyond 200 nautical miles. The 1982 Convention provides for delimitation of overlapping shelves in terms identical with those relating to the EEZ.

All states enjoy the traditional freedoms of navigation, overnight, scientific research and fishing on the high seas. They have the obligation to adopt, or cooperate with other states in adopting, measures to manage and conserve living resources.

The territorial sea, the exclusive economic zone and the continental shelf of islands are to be determined in accordance with rules applicable to land territory, but rocks which cannot sustain human habitation or economic life will have no economic zone or continental shelf.

States bordering enclosed or semi-enclosed seas are expected to cooperate on the management of living resources and on environmental and research policies and activities.

Land-locked states have the right of access to and from the sea, and enjoy freedom of transit through the territory of transit states by all means of transport, subject to agreement.

A 'parallel system' (as amended in 1994) provides for the exploration and exploitation of the international sea-bed area. All activities in the area are deemed to be under the control of the International Sea-Bed Authority, which is responsible for supervising the recovery of minerals from the sea-bed, and which has its headquarters in Kingston, Jamaica.

States are bound to use the best practical means at their disposal to prevent and control marine pollution from any source. Coastal states, port states and flag states are responsible for preventing pollution and punishing polluters, particularly when pollution originates on board vessels. States will be liable for damage caused by violation of their international obligations to combat marine pollution. They are bound to cooperate globally and regionally in formulating rules and standards of environmental protection, and commit themselves to promoting technical assistance to developing countries in this area.

All marine scientific research in the exclusive economic zone and on the continental shelf is subject to the consent of the coastal state, but such states shall, in normal circumstances, grant consent to foreign states when the research is to be conducted for peaceful purposes as laid down in Article 246 of the Convention. A coastal state can deny permission for such research or insist on its cessation, but only under circumstances defined in the Convention. In the event of a dispute, the researching state can require the coastal states to submit the matter to international conciliation on the grounds that it is not acting in a manner compatible with the Convention.

States are bound to promote the development and transfer of marine technology on fair and reasonable terms and conditions. This will be done with proper regard for all legitimate interests, including the rights and duties of holders, suppliers and recipients of technology.

States are obliged to settle by peaceful means their disputes over the interpretation or application of the Convention. When they cannot agree on the means of settlement, they have to submit most types of disputes to a compulsory procedure entailing decisions binding on all parties. They have four options: an International Tribunal for the Law of the Sea, established under the Convention; the International Court of Justice; arbitration; and special arbitration procedures. Certain types of disputes have to be submitted to conciliation, a procedure whose outcome is not binding on the parties.

 

JURISDICTION

 

The jurisdiction of a state is generally recognised as extending over all persons, property, acts and events within its territory; and for this purpose its territory includes the Territorial Sea. However, it is customary for a state to exercise restraint in applying jurisdiction in respect of offences committed on board foreign ships by foreign nationals, provided that the general peace is not disturbed and that the crime is not a grave one; and particularly if the consular representative of the country concerned is seen to be in control of the situation. Jurisdiction also relates to aircraft registered in, and ships flying the flag of, a state and to a state's nationals abroad, as well as universal jurisdiction over pirates and war criminals.

 

 

NATIONALITY

 

The possession of a nationality grants privileges to an individual and correspondingly imposes obligations:

 

'It is for each state to determine under its own law who are its nationals. This law shall be recognised by other states in so far as it is consistent with international conventions, international custom, and the principles of law generally recognised with regard to nationality.

Any question as to whether a person possesses the nationality of a particular state shall be determined in accordance with the law of that state.'

 

These fundamental principles set out in the Hague Convention of 1930 on the Conflict of Nationality Laws have been modified by a subsequent principle that when a state grants nationality to a person whose association with that state is so tenuous as not to constitute a 'genuine link', other states are not bound to recognise that grant of nationality; otherwise they continue to apply.

Nationality is normally acquired by birth in the territory (jus soli) or as the descendant of a national (jus sanguinis), occasionally by naturalisation, marriage or on application, and on rare occasions as a consequence of conquest, cession or other change in the nature of a state. It is often forfeited on the acquisition of a different nationality and may be lost by renunciation, specific state legislation or, in some cases, marriage or prolonged absence. Dual nationality may occasionally result from an overlap of two countries' legislation on the subject or from exceptional circumstances. A person becomes stateless when he is deprived of his nationality and does not acquire an alternative.

The laws relating to nationality are complicated and varied, but they are very relevant to diplomats in general and to consular officers in particular. For example, a state has the right to accord diplomatic protection to its nationals while abroad but not to others; a person usually has the right to be granted re-entry into the state of which he is a national (and therefore prima facie entitlement to a transit visa through an adjacent state in the direction of that state); or he may be liable to military service or subject to extradition. A duly authorised passport is generally accepted as prima facie evidence of nationality.

 

Chapter 10

CONFERENCES

 

 

 

 

 

International negotiation is a specialised form of bargaining: when it takes the form of bilateral negotiation it may be relatively informal, but multilateral negotiation is normally conducted on a formal conference basis. As the range of international business has increased over recent years, so has conference practice and procedure become to a greater extent refined and standardised: that is a sort of science; and conference diplomacy, which is rather more an art, has, like diplomacy in all its forms, adapted to changing situations.

Conference practice and procedure are concerned with the commonly accepted rules designed to ensure the most successful possible outcome of a conference and the greatest degree of satisfaction to all participants; whereas conference diplomacy is the expertise practised by the individual delegate who seeks to gain the maximum advantage for his country. It may be said that the chairman or president of a conference requires a high degree of diplomacy to ensure a successful outcome of a conference, but as he also needs to be well acquainted with practice and procedure his skill can best be summed up in the term conference management.

 

International conferences can be classified in a number of ways. They may be:

 

· bilateral or multilateral;

· single-subject or multi-subject;

· ad hoc or regular;

· those with a permanent secretariat and those without.

 

International conferences may also be classified in terms of the objectives that they set out to achieve. These may be:

 

· to serve as a forum for the general discussion of a subject or subjects;

· to make non-binding recommendations to governments or international organisations;

· to make decisions binding on governments (in most instances ad referendum);

· to make decisions giving guidance or instructions to the secretariat of an inter-governmental        organisation, or on the way in which a programme financed by governments should be administered, e.g. the standing or executive committees of international organisations in the interim between plenary sessions;

· to negotiate and draft a treaty or other formal international instrument;

· to provide an international exchange of information, e.g. UN Conference on the Peaceful Uses of Atomic Energy;

· to provide for the pledging of voluntary contributions to international programmes, e.g. UN High Commission for Refugees; World Food Programme.

 

 

 

 

 

 

 

 

 

CONFERENCE PRACTICE AND PROCEDURE

 

RULES OF PROCEDURE

 

The first requirement of every formal conference is a set of written rules that guide and determine the activities of the participants and to which the chairman can refer in cases of doubt or dissent. These must either be standing rules which, having been approved by a previous session, are accepted as standard procedure by subsequent sessions, e.g. the rules of procedure of the United Nations General Assembly; or they must be submitted to, and approved by, the conference. In the latter instance they would be circulated in draft form in advance, and would include the date and place of the meeting, adequate advance notice of which must always be given.

 

 

THE AGENDA

 

The agenda of a conference lists the items of business that will be raised and the order in which each item will be considered. A draft or provisional agenda is normally prepared and circulated by the convenors or secretariat of the conference and will, in the case of regular meetings, include (i) obligatory items (e.g. the approval of the minutes of the previous meeting); (ii) items of business left over from the previous session; and (iii) new submissions for consideration. The agenda must be circulated sufficiently far in advance of the conference to give participants time to study the various items of business. Similarly, items to be included on the agenda must be sent to the secretariat/convenors sufficiently early for them to be processed and the participants notified.

For certain conferences (e.g. the UN General Assembly) it is obligatory for an explanatory memorandum to be circulated in respect of each substantive item on the agenda.

 

 

COMPOSITION OF DELEGATIONS

 

The composition of delegations is normally provided for in the Rules of Procedure. The United Nations recognises representatives (maximum five) and alternate representatives (maximum five), and as many advisers, experts, etc., as are required.

 

 

CREDENTIALS

 

Credentials are provided in a document identifying a representative and authorising him or her to act; they are usually verified by a credentials committee which reports to the plenary meeting for approval. Credentials must be issued by the proper authority and comply with the requirements of the conference rules of procedure. Full powers are required in certain instances, e.g. for adopting the text of a treaty. Paragraph 29 of the General Assembly rules of procedure allows for the provisional admission of a representative against whom objections have been raised.

 

 

OBSERVERS

 

The admission and status of observers depend on the rules of procedure of the conference, but they do not in any circumstances have a vote. In the UN General Assembly it is exceptional for observers to be permitted to join in the discussions, but in the Security Council it is a common practice.

OFFICIAL LANGUAGES AND WORKING LANGUAGES

 

Official languages are those in which texts and resolutions are published and in which discussions are held. Working languages are those languages used in discussion and from and into which interpretation is provided.

PUBLICITY

 

Conferences can be divided into three general categories: those that are completely open and to which the public and media are invited; those that are completely closed, the public and the media being provided with a final communiqué agreed by the participants; and those that are limited to the participating members, the public and the media being informed by individual participants by means of press conferences, television interviews and other forms of publicity. In practice there is a spectrum of ad hoc arrangements between the closed and the open conference (e.g. some sessions may be open to the public and others not).

 

 

RECORDS

 

A fundamental requirement of any conference is that there should be no doubt as to what has, and what has not, been agreed. For this purpose records of the proceedings are invariably kept and are agreed as correct by the participants. The records kept can be divided into three categories:

 

1. verbatim records (manual or audio);
2. summary records, usually prepared by the secretariat, and supervised by a rapporteur;
3. the texts of resolutions only.

 

Participants normally have the right and opportunity to make minor alterations to improve the presentation but not the substance of a report of their intervention when it is circulated in draft form; this applies particularly in respect of verbatim reports.

 

 

THE RIGHTS OF PARTICIPANTS

 

The rights of participants as well as the limitations on their activities are usually specified in the rules of procedure; and are subject always to the proviso that it is the task of the presiding officer to ensure that the conference reaches a satisfactory conclusion, and that the business of the meeting is not deliberately or needlessly obstructed. These rights are usually: the right to speak once on each question under discussion, the right to make a point of order (usually an objection to the remarks of a participant which are considered offensive or irrelevant); the right to make a procedural motion (a procedural motion relates to the conduct of the meeting and must immediately be put to the vote by the presiding officer); and the right to reply to another speaker.

 

 

MAKING PROPOSALS AND TAKING DECISIONS

 

Decisions at conferences are normally taken on the basis of written proposals submitted for consideration by one or more participants: these are referred to as draft resolutions. In the UN they take the form of a preamble and an operative section; and they are normally required to be submitted with an explanatory memorandum.

Amendments and sub-amendments to draft resolutions may be proposed (and may subsequently be withdrawn) before voting takes place. Voting is firstly on sub-amendments; secondly on 'the amendment furthest removed in substance from the original proposal' (UN General Assembly rule 92) when two or more amendments relate to the same text; and finally on the draft resolution as amended. Amendments cannot negate the substance of a resolution: they must add to, delete from or revise part of a proposal. Explanations of vote, i.e. a verbal statement given by a participant explaining why his vote has been cast in a particular way, are normally permitted, as are motions for division, which provide for separate voting on separate sections of a resolution in the event of this being specifically provided for.

 

VOTING QUORUMS AND MAJORITY REQUIREMENTS

 

Voting is usually on the basis of a simple majority (i.e. over half) of the representatives present and voting; in certain instances (often for important questions) the rules of procedure may specify a two-thirds majority (i.e. two-thirds or more) of the representatives present and voting; or alternatively a simple or two-thirds majority of total membership.

Normally each country has one vote, but systems of weighted voting exist in, for example, the ILO and the IMF (in accordance with their rules of procedure), whereby certain categories of participants or certain countries having a greater financial or practical stake in the matter in question have more votes than others.

Rules of procedure normally provide for two specific quorums:

 

1. the minimum number of members or participants who must be present for a vote to take place;
2. the minimum number required to be present for business to proceed.

 

Voting in the Security Council is on the basis of two categories of representatives: permanent members and non-permanent members. In the General Assembly, where each country has one vote, a resolution on which there is an equally divided vote is voted on at a second meeting held within forty-eight hours, and is rejected if the votes are again equal. This procedure does not apply to the elections of officers.

Votes may be counted in various ways: by a show of hands, a roll call, by members standing or pressing a button, by secret ballot or by postal ballot.

 

 

DETERMINING PROPOSALS BY CONSENSUS

 

It is unnecessary to go to the extent of casting votes on certain proposals - for example that the Conference should adjourn for lunch: the president decides that there is a consensus of opinion among the representatives that they are feeling hungry, and accordingly proposes that they should do so. This is a consensus decision without a resolution: it is based on an assumption by the presiding officer of what is sufficiently self-evident not to warrant taking up the time of the meeting on preparing a resolution, and is particularly applicable to procedural decisions. It is also a device that may be adopted by the presiding officer if he judges that the absence of a resolution is the best political solution to a particularly delicate situation and would be accepted as such by the participants.

A consensus decision with a resolution falls within the same category but is slightly more formal. It is for routine and non-controversial items, and for those items to which a minority of representatives object, but would rather not be seen to object through the publicity of a vote. The term 'consensus' is also used to an increasing extent in various inter-governmental organisations as an extension of the term 'unanimity'; implying that:

 

1. all delegates have had an opportunity of expressing their point of view before final approval is given, and
2. although they may not be entirely in favour of a draft resolution, all delegates consider it advisable, on balance, not to force the issue by opposing it.

 

SUBCOMMITTEES AND WORKING PARTIES

 

It is common practice for conferences to resolve themselves into subcommittees or working parties in order to deal with separate issues of a problem, and then to consider their reports at plenary sessions. They may also provide a useful means of making recommendations on highly specialised subjects; and in cases where a conference meets at lengthy intervals are a means whereby business can be continued during the intervening periods.

 

 

THE ELECTION OF THE OFFICIALS

 

The president, vice-president(s) and, where applicable, the rapporteur assume their functions either by election (as is the case in the majority of conferences) or by rotation (as the chairmanship of the Security Council). In an ad hoc conference the representative of the country in which the conference is being held is normally the provisional chairman.

 

 

 

SEATING, PROTOCOL, ORDER OF PRECEDENCE, ETC.

 

In bilateral conferences normal diplomatic protocol is customarily observed. In multilateral conferences precedence is normally based on the alphabetical order of name of country (in English or French). In the UN General Assembly the point of seniority in the alphabetical order varied for each session.

 

 

CONFERENCE MANAGEMENT

THE ROLE OF PRESIDING OFFICERS

 

There is a close parallel between the role of the presiding officer and that of the football referee. Each has the lonely and responsible task of supervising the interplay of skills and techniques between professional players each seeking to gain the maximum advantage; and within a given space of time he has to ensure that the game is played according to the rules and that the final decision is accepted by all the participants. He is provided with a book of rules (the rules of procedure) but his authority, though theoretically supreme, can have no substance unless he is able, by his sensitivity and diplomacy, to persuade those concerned that it is in their own interests to accept it and abide by his decisions. Both need fairness, firmness, knowledge of the rules and very sensitive antennae; not to mention monumental patience and, at times, self-restraint.