Law and the Practice of Diplomacy

Abstract

At the boundary where states meet the outside world, we find public diplomacy. Distinct from private negotiation and covert action, diplomacy involves the presentation of the interests and actions of the state to an international audience. It includes a wide variety of activities, including formal interactions with other states over treaties and agreements, public statements by spokespeople to explain the state's actions, and positions taken in international settings such as the United Nations general assembly, among many other manifestations. These activities share two features in common: first, they are all at some level official products or byproducts of state behaviour, meaning that diplomacy is essentially connected to the business of the state; and second, they all involve situating state behaviour within the framework provided by international law. This article defends the claim that these two features make up the essential core of international diplomacy and examines implications for the practice and theory of international politics.Seeing diplomacy in terms of international legal justification provides a novel perspective on the behaviour of states and on their interaction with international law. This has three elements. First, it emphasizes the use of law by states, suggesting that international law is a set of resources with which states construct the explanations for their behaviour. This view is an alternative to conventional philosophical positions on international law from the Hobbesian, positivist, and Kantian traditions. Second, it suggests that controversy over distinguishing compliance from noncompliance is inherent in the concept of international law, so that diplomacy is by nature a contest among competing claims about rule-following. This contradicts some common approaches to diplomacy and law that suggest that deliberation, argumentation, and diplomacy lead to greater consensus over the meaning of particular laws. Instead, I suggest that diplomacy complicates rather than simplifies the notion of compliance. Finally, it presents diplomacy as the medium of exchange between agents and structures in international relations. Studying the practice of diplomacy therefore provides an example of how the interactive process between agents and structures can be modelled for international relations theory.This article seeks to substantiate two points: first, that diplomacy is a practice of states; and second, that this practice consists of reconciling state behaviour to international law. The first section of the article explains what is entailed in seeing diplomacy as a practice, including the dynamic between state officials and new actors in diplomacy. The second examines diplomacy's connection to compliance, contestation, and the rule of law. It suggests that compliance with international law is an intrinsic quality in the self-understanding of state action: states naturally see their behaviour as rulecompliant and the function of diplomacy is to substantiate that connection. As a result, competing claims about compliance cannot be resolved within the terms of diplomacy; they are political rather than legal artefacts. In conclusion, I explore the implications for the philosophy of international law, the concepts of compliance and noncompliance, and the agent-structure debate in international theory.DIPLOMACY AS A PRACTICEThe interaction among sovereign states inevitably produces dialogues of diplomacy - states talking to states about the business of states. This is the infrastructure of world politics.1 Public diplomacy is a subset of these dialogues, where the broader set also includes private negotiations and secret interactions.2 Among these, I am interested in the pattern of public justification of state policy or action, undertaken by leaders, diplomats, and other government officials as well as by the professional staffs of foreign offices and other bureaus.Public diplomacy is a social practice. …