Written evidence from Anthony Aust
General point: it would
be a mistake to appoint businessmen as British ambassadors
MY EXPERIENCE
1. I was for 25 years a Legal Adviser in the
Foreign and Commonwealth Office (FCO), retiring in 2002 as Deputy
Legal Adviser. I read law at the London School of Economics (LSE),
became a solicitor and then joined the FCO. Throughout my career,
I gave legal advice to FCO departments. Before and since I retired,
I have taught international law as a visiting professor at University
College London, the School of Oriental and African Studies (SOAS),
LSE, Westminster University and Notre Dame (London). I have also
taught and given seminars at other universities and other places
in the United Kingdom and abroad: see the attached (and rather
short) CV.
2. During my time in the FCO, I got to know well
those who I advised and their particular concerns and how they
operate. Like any lawyer, one has to know all the relevant facts
of any case and appreciate the pressures on the client, which
in this case was principally the department and the Foreign Secretary
or a junior FCO minister. This was exemplified by the Lockerbie
affair. By this I mean not only the criminal case, but also the
case brought by Libya against the United Kingdom and the United
States at the International Court of Justice (ICJ), and the need
to get the backing of the UN Security Council for what we wished
to do in both with the criminal case and at the ICJ.
3. I was posted abroad twice for three years
each time: West Berlin 1976-79 and as a Legal Adviser to the UK
Mission (ie British Embassy) to the United Nations in New York
in 1988-91.
4. Each FCO department has one or more legal
advisers, and usually one has at least four departments to advise
at any one time. Each year one may drop one department and be
assigned another to advise. Sometimes, one may advise a department
for much longer, so providing much needed continuity. Nevertheless,
during one's career, one will advise most departments. This gives
one an understanding of each department's concerns. Although one
is not responsible for the policy adopted by a department you
advise, one is a full member of the FCO and soon learns of the
problems facing the department.
5. As an FCO Legal Adviser, I worked closely
with the members of the departments that I advised. Usually, they
were not legally qualified persons although they were generally
well aware of the problem facing them and usually understood very
well my legal advice. In this, like most of my colleagues, I was
at pains to make the advice understandable to a layperson. There
is no point in writing as one would to another lawyer if the layperson
would not understand the advice. I therefore experienced few problems,
and was glad that I did not have to advise ministers on difficult
policy problems, merely on the legal aspects of the problem.
However, given my experience, from time to time I was able to
suggest a practical way out of a policy quandary.
6. Knowing the diplomatic and political pressures
(both on the UK Government and other relevant governments) is
especially important for matters coming before the United Nations.
When I was Legal Adviser to the UK Mission to the United Nations,
the time was particularly important since I saw at first hand
the effect of the end of the Cold War on the policy of East European
Governments. When I left the post in August 1991, I became, inter
alia, Legal Adviser to the FCO's UN Department, where I saw from
the perspective of the FCO the break-up of Yugoslavia, and continued
to monitor the doings of the UN Security Council.
VIEWS
7. Working so closely with non-lawyers, I got
to know well the subject they were concerned with and was impressed
by the way they tackled it. Despite the changes in nomenclatureborrowed
chiefly from the City and large companiesthe way the FCO
operates has not essentially changed. It has to take into account
the views of other governments and seek to find a way which protects
British interests and, if necessary, those of our allies. That
task is far from easy, but it is the essence of the task of any
foreign ministry. Putting it more simply, it is (generally) being
nice to foreigners in order to get our way. This is now more difficult
since we are no longer a Great Power either military or economically,
and our empire had shrivelled to a handful of generally poor and
troublesome overseas territories. Yet, we are judged by the effectiveness
of our diplomacy. In other words, are we to be taken seriously?
8. Based on my long experience of working with
the FCO, I believe that nothing substantive needs to be changed
in the way it works. Despite alterations in nomenclature (for
example an Under-Secretary becoming a Director), which may be
understandable, the challenges facing the FCO and its diplomats
remain essentially the same. That is knowledge of the local language;
the local ways of doing business; and the concerns of the foreign
country.
Local language
9. It would be a big mistake to think that because
English has now replaced French as the "international language",
and so is widely understood and spoken, and that a British diplomat
can get by speaking only or mainly English. Although his opposite
numbers may understand and speak English apparently fluently,
it is not usually their language. Thus, serious mistakes and misunderstandings
can occur if one does not know the local language well. Therefore,
to be truly influential with members of a foreign government and
their officials (and to report back accurately), one must be able
to speak and understand their language well. It would therefore
be a mistake to recruit most businessmen as diplomats, even as
ambassadors. They are unlikely to know well enough the country,
its concerns or its people. Their skills (even if otherwise considerable)
are different to that of diplomats.
10. The US practice of appointing as ambassadors
many non-diplomats (such as businessmen) is not a path the United
Kingdom should follow. What is done in the United States is very
different. Each Presidential election is most expensive and if
their candidate is successful, many large donors expect to be
appointed as ambassadors. In fact, those so appointed usually
only host meals and cocktail parties and give set speeches; most
of the real work of the embassy being done by their deputy, who
is a full and experienced member of the US Foreign Service.
Ways of doing business
11. Even European businessmen do business in
ways that are not ours; this applies even to what we regard as
our closest neighbours. It would therefore be a mistake to appoint
businessmen as ambassadors unless they are very aware what really
matters to the businessmen they have to deal with, as well as
speaking and understanding their language very well. Today, their
concerns are often related to foreign policy.
Concerns of the foreign country
12. Political concerns will also influence foreign
businessmen when dealing with the United Kingdom. These will be
truly understood only by UK diplomats who live among them and
speak their language. The British ambassador may be given false
encouragement, though he should understand this. A businessman
ambassador may not be so lucky.
CV
13. I advised FCO ministers, officials and other
government departments on public international law, constitutional
law and UK law. I acquired an in-depth knowledge of most areas
of international law, including the law of treaties, international
civil aviation, diplomatic privileges and immunities, counter-terrorism,
dispute settlement, Antarctica and defence. I had over 10 years
close involvement in UN legal affairs in New York and London.
I am experienced in drafting treaties, constitutions and legislation.
14. Now I am a consultant on public international
law and constitutional law to British ministries (eg FCO, DfID
and Defra), other Commonwealth and foreign governments, international
organisations and law firms in London and abroad. I have been
the Deputy Director and a Visiting Fellow of the British Institute
of International and Comparative Law. I have been a visiting professor
at the London School of Economics (LSE), University College, London
(UCL) and the School of Oriental and African Studies (SOAS). I
have also taught elsewhere.
15. Cambridge University Press published my Modern
Treaty Law and Practice, (2nd edn 2007; Chinese edn,
2004); and my Handbook of International Law (2nd edn 2010).
I also write on international law for chapters in edited books
and in articles for learned journals.
10 December 2010
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