Archive | January, 2014

53. Challenges of the peaceful settlement of conflicts

29 Jan

Challenges of the peaceful settlement of conflicts

1. Although by its very nature the international legal order is evolutionary, it is now necessary for international law to generate new rules and mechanisms to ensure an effective response to the new phenomenon of the threat to state security by terrorism which some describe as worse than the wars of the past.

2. The new forms of terrorism cause massive damage to human life and property aim their attacks on centres of political and economic power of global society and in some cases their actions actually receive the support of certain States.

3. New technologies have placed in the hands of small groups a destructive potential previously only available to some States. This new form of terrorism can be described as “the privatisation of war.”

4. Based on the nature of international crime that is represented by global terrorism and the uniqueness of the international responsibility that combating it entails, it can be inferred that fighting it will require adaptation of the international legal system to the new situation. This is urgently necessary since there are still significant aspects of law not covered by the international legal instruments governing the prosecution of perpetrators and supporters of global terrorism.

5. Without doubt, the international legal order established in San Francisco in 1945 has changed. The Charter of the United Nations continues to be the regulatory framework with which the use of force in modern times is applied by the international community. But it should be noted that the principle of prohibiting the use of force as enshrined in the Charter does not provide an effective response against this new threat of global terrorism.

6. One of the great challenges of the international community has been and still is today, to achieve by peaceful means the effective resolution of conflicts or disputes that frequently arise between States. In this regard, in the present international legal order the use of weapons is permitted only for self-defence, individually or collectively – that is to say that war has “no reserve” in the current international legal order.

7. The UN Charter has established the most desirable methods of peaceful settlement of international conflicts, while authorising its member States to choose the system that they feel are most appropriate. There are two kinds of arrangements: the “diplomatic-political” and legal. In the first, which is the oldest, the methods of solution most frequently used are: direct negotiation or settlement, the good offices, mediation and conciliation, commissions and research. On the other hand, the legal means are arbitration and judicial settlement.

8. According to Article 39 of the United Nations Charter, the Security Council is the body responsible for taking measures to remove threats to peace, breach of it, or qualify an act of aggression.

9. If all peaceful methods are exhausted, the situation opens the possibility of using coercive means. Methods that have been established as coercive in nature and based on collective decision include: retaliation, foreclosure, closing of borders, boycott, the rupture of diplomatic relations, and retaliation.

10. Advances in the field of peaceful settlement have been augmented with advances in related fields, such as disarmament and collective security. Furthermore, a State’s recognition and respect for fundamental human rights assists in this process.

11. The methods of peaceful settlement, in general, are proposed to solve the problem or dispute before it causes major consequences for the affected States and to world peace. Based on the fact that the fundamental mission of international law is to establish order and justice in international relations, it is essential that international law preserves the tendency to subordinate a State or a group of States that threaten world peace to the political power and force of the international community.

Editor’s Note: Credits to Amb. Manuel Morales Lama

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52. The conclusion of treaties

28 Jan

The conclusion of treaties

1. In the practice of international relations, the treaty has gained primary importance. The process for the conclusion of treaties has been the result of persistent work, which for centuries has gradually forged the foundations of the present procedure aimed at achieving the required effectiveness in implementing the key international legal instruments.

2. The 1969 Vienna Convention on the Law of Treaties specifies that “every State possesses the capacity to conclude treaties.” The conclusion of treaties is enabled by the power of State sovereignty. (The power to conclude treaties is also extended to public international organisations.) Under its sovereignty, the State determines the internal organs and legal procedures to be involved in negotiating treaties in the international arena.

3. The conclusion of treaties is the result of understandings freely entered into between two or more States (or between these and other subjects of international law with the capacity to do so, or between such other subjects) to voluntarily consent to negotiations aimed to create, define, establish, modify or terminate a legal relationship  between them.

4. The validity of a treaty depends greatly on the ability (and consent) of the parties to conclude an agreement and implementation it. In essence, treaties are the legal instruments of the highest contract between States.

5. The procedures for the conclusion of treaties have both internal and external aspects. External procedures include negotiation the project, drafting the final document, the signing and exchange of ratifications (or the deposit of ratifications, in the case of a multilateral instrument) and registration. The internal procedures involve legislative approval, ratification of the Executive and the publication in the Official Gazette.

6. In practical terms, it should be noted that the staff assigned to participate in the negotiation phase of the conclusion of a treaty must have full knowledge of the issues to be negotiated. In accordance with the particular complexity and importance of the negotiation techniques, it is expected that the negotiators are adequately trained in those methodologies and, of course, must be firmly committed to defending the fundamental interests of the nation. In this phase outside consultants may also participate, and in some cases, representatives of civil society whose expertise and experiences have a direct bearing on the issues that are negotiated.

7. Those involved in the conclusion of a treaty must be fully aware of the provisions contained in the Vienna Convention on the Law of Treaties (1969) which governs the matter essentially between States, including the rules of interpretation and appropriate parameters for the prevention and resolution of conflicts arising from the implementation of treaties.

8. They must also have an adequate understanding of the Vienna Convention of 1986 governing all matters relating to other international instruments between States and international organisations or between the latter. They should also be fully aware of the discipline known as the Law of Treaties (the universe of public international law), containing among other relevant aspects, the principles, standards and procedures for the conclusion of treaties.

9. While the generic term commonly used to refer to this category of international commitments is “treaty,” it can assume different names in accordance with certain aspects recognised by international law, without altering its legal or ethical powers these. Consequently, the treaty can be called: convention, agreement, union, pact, partnership, agreement, protocol, proceeding, concordat, exchange of notes, exchange of letters, “modus vivendi,” among others.

10. Undoubtedly, treaties have become a means of limiting international randomness, consecrate the conciliation of interests, stabilise the balance of power and provide assurances within a fluid and changing environment.

11. Treaties, currently the most objective source manifesting the consent of States, must be in writing in accordance with the principles and rules established by international law to which they are all legally bound.

Editor’s Note: Credits to Amb. Manuel Morales Lama

51. Economic Diplomacy

20 Jan

Economic Diplomacy

1. As part of the State’s foreign policy, economic affairs and trade are now being given greater priority. Indeed, these areas are now key factors in the development of contemporary international politics.

2. “Economic diplomacy” has become an inseparable part of the conventional diplomacy. Actually, a diplomacy that does not promote economic development risks having its role devalued in the modern State.

3. While traditionally the cooperation and the maintenance and strengthening of international peace and security have been and still are today essential objectives of diplomacy, it is clear that economic and commercial aspects are fundamental parts of the diplomatic activity of a considerable number of countries. This activity is essentially related to investment, exports, the role of protection and assistance in these areas, and also the promotion of tourism.

4. In the field of modern diplomacy, globalization and the technological revolution demand change and effective adaptation of the traditional roles and responsibilities of the Ministries of Foreign Affairs. These should be based on the necessary professionalization of the diplomatic function, and include the task of reconciling, through institutional mechanisms, actions that formerly belonged exclusively to them with other ministries (or governmental agencies ) that handle areas such as economic matters and trade.

5. Links should also be established with non-State actors including business executives, civil society representatives and NGOs with the aim of maintaining a constructive dialogue and cooperation in order to achieve economic objectives linked to national interests.

6. For a State, its economic power, the dynamism of its trade and its presence in global markets, allow alliances and resolve conflicts much easier than if it did not have such clout. However, the political benefits of an active trade diplomacy are not instantaneous, nor are there always economic dividends arising from political friendships.

7. The political power of a State does not rest solely and directly on economic parameters.  A State must coherently combine the capacity to trade with operations in other fields and all must be linked to greater social cohesion. It is the versatility and the synthesis of all these factors which provide the political clout of a State.

8. Professional diplomacy is most suitable for this synthesis, to the extent that it can use its political weight in favour of businesses and investments and bring political and economic benefits to its nationals abroad.

9. In practical terms, within the framework of the Foreign Ministries, central management of these actions is usually the competence of a deputy minister. While in the embassy is run by the ambassador, often there is an attaché who is exclusively responsible for these functions. This officer could be designated as “adviser” to give more relevance to his work, which consists essentially of advocacy, analysis and evaluation, and the duty to inform, assist and advise.

10. Clearly, economic and commercial diplomacy should be a key State project that requires a strong background of the diplomats from a multidisciplinary perspective. Their specialised work, to be effective, requires constant updating of knowledge and techniques and procedures. It is also essential for them in this exercise to ensure appropriate consistency in the identification of sustained national economic interests abroad in order to allow for effective economic diplomacy outside of the State.

Editor’s Note: Credits to Amb. Manuel Morales Lama