International lawyers and the diplomacy of modern states, with specific reference to South Africa

Abstract

This study explores the role and influence that advisers on international law in foreign ministries have on the diplomacy of modern states. The departure point of the study is the new interdisciplinary scholarship on the relationship between international relations and international law that was triggered by the termination of the Cold War and the bipolar, realist world order. New perceptions of increased interdependence between states resulting from the need for transboundary cooperation to address contemporary international problems also resulted in a renewed focus on the applicability of other theories, besides that of realism, which dominated international relations theory after the Second World War. This interdisciplinary scholarship, conducted by both international relations scholars and international lawyers, has both institutionalist and liberal underpinnings. Within this discourse a renewed focus on the role of advisers to governments on international law has also become evident, but it is generally of a descriptive nature and not directly linked to diplomacy. This study aims to contribute to this discourse by analysing the direct impact that advisers on international law, in most cases employed by foreign ministries, have on diplomatic decisions and the conduct of diplomacy by modern states, with a specific focus on South Africa. In the course of the study a number of propositions are explored. This is done by analysing the available literature and by means of three case studies. Two case studies will assess the role that advisers on international law played during two crises involving the use of armed force. During the Suez crisis of 1956 the realities of the Cold War started to assert themselves in international relations, while the NATO attack on Kosovo of 1999 took place within the post-Cold War paradigm. The third case study will explore the role of the Office of the Chief State Law Adviser (International Law) at the South African Department of Foreign Affairs in the formulation and conduct of South African diplomacy. The propositions advanced by this study relate firstly to a general approach by states to conduct their diplomacy within the limits of international law (or at least to justify it in terms of international law). The second proposition holds that the influence of law advisers is greater with regard to problems with a high legal content, but less profound in cases of crisis decision-making, with regard to issues with a high policy content or where considerations of security are involved. The third proposition explores two approaches towards the role of the law adviser: the first considers him/ her as an objective analyst of legal rules, while the second provides that the law adviser can choose from various interpretations of international law to advance an opinion that will further the state’s interests. Finally, the changes wrought on the international system, international law and diplomacy by the terrorist attacks against the United States of America on 11 September 2001 and their possible relation to the function of the law adviser, will be explored.