Archive | May, 2014

60. Information technology in diplomacy

10 May

Information technology in diplomacy

1. Technological advances have in recent times have led to dramatic changes in communication in the area of international relations. Clearly, current diplomacy is now re-sized to allow for the application of essential and effective tools, such as those provided by the information technology.

2. The exercise of “conventional” diplomacy through electronic means is called “digital diplomacy” (or “e-diplomacy”). The UK and the USA are leaders in this field; the former has a “Digital Diplomacy Department” in its Foreign Office while the latter has an “e-Diplomacy Office” in the State Department.

3. Digital diplomacy must be understood and embraced as a tool of communication and information relevant to the foreign service. However, it has to be regularly and comprehensively updated in tune with new technologies and also with the needs of the foreign service itself.

4. Exchanges of information between the Ministry of Foreign Affairs and diplomatic missions are normally conducted increasingly by email. However, email communication has issues that require special privacy and can also be easily breached by unauthorised persons.

5. The electronic media significantly affect not only the presentations themselves, but also in the way information is archived, allowing quick and efficient classification and also facilitating rapid and consistent access. Above all, these media today are essential to the effectiveness of monitoring and rapid reporting.

6. This electronic form of communication and also the information provided through it has its own risks. Therefore it is essential to implement a security system for the purpose of having the effective confidentiality in the information provided or required and also to ensure that it could be stored securely.

7. It is worthy to note that the violation of the confidentiality of the electronic information can lead to criminalisation since it is regarded as a breach of national or international law or both.

8. As part of the implementation and development of electronic media, the foreign ministries (as well as embassies and consulates) have established modern internet portals (websites) that maintain a constant flow of up-to-date information targeted to their own officials and foreign nationals, and to promote trade and tourism, among others.

9. “Intranet” systems (particular link between computers) allow, among other benefits, a comprehensive and effective communication between the Foreign Ministry and diplomatic missions in their country. Such initiatives are often framed in the “e-government projects” and the modernisation programmes of the foreign ministries.

10. “Instant media” have a significant role in this area, especially the “chats” and social media networks like Facebook, Skype and Twitter, which are used both by the foreign ministries to disseminate and receive data. Through these means, “virtual” communication can coordinate activities that once could only be made by physical time-consuming means.

11. Despite the persuasive impact of new media, they cannot be expected to replace private negotiations and personal exchanges. It is impossible to conclude agreements on a large scale through electronic chat rooms or in video conferences. Nevertheless, such agreements would be unsustainable without the aid, understanding and support of a changed world interconnected and empowered by information technology.

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

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59. Arbitration and diplomatic protection of investment

10 May

Arbitration and diplomatic protection of investment

1. In the field of international business, private investment abroad has historically enjoyed the diplomatic protection of the State of its nationality. However, today it is considered that such protection does not provide foreign investors sufficient legal guarantees especially when they operate in countries with little legal or political stability or both.

2. However, diplomatic protection remains an essential instrument for the international protection of the individual, essentially in the field of human rights.

3. It is common for companies located abroad, when circumstances so warrant, to seek the protection (or assistance) of the diplomatic and consular missions of the country of origin of the company, or its owners, with regard to investment in the host nation. It should be noted, however, that there generally exist many treaties in this field incorporating direct methods of arbitration that a foreign company or investor can “trigger,” when the circumstances require, against the respective host State. But such treaties may also contain clauses that prevent resort to diplomatic protection.

4. In addition, it must be taken into account that the signatory states of the WTO and free trade agreements can go to arbitration based on procedures they establish. Another mechanism used for settling such disputes is that of the World Bank’s International Centre for Settlement of Investment Disputes.

5. The requirements for the implementation of international action of diplomatic protection are:

a)      Establishment of “the criterion of effective nationality.” A State cannot protect its national if it the national is guilty of wrongdoing. However, a State can make statements on behalf of companies holding the nationality of the applicant.

b)      No action of a State shall be admissible if the individual has not previously exhausted all remedies provided by the laws of the State concerned.

c)      An act that harms the compatriot should be unlawful in relation to international law (denial of justice, unjustified delay in its administration, or judgment against the law). Furthermore, another condition is the “right conduct” (“clean hands”) by the compatriot, i.e., the compatriot has not caused by his own behaviour the alleged damage.

6. With regard to commercial arbitration, it is evident that with rising frequency it is gaining ground as a flexible, fast, reliable and effective resolution of commercial disputes. Progress is evident in this field, especially in the Americas, where arbitration features within the constitution of several countries, through the incorporation of universal and regional treaties relating to arbitration and by the adoption of new laws or reform of existing laws that govern them.

7. This evolutionary process has been instrumental to the point that virtually all Latin American countries have conducted or have gone to international arbitration.

8. The major legal barriers that have traditionally prevented arbitration from becoming the most effective to resolve international commercial disputes in Latin America have now been suppressed. The process has finally found a solution consonant with the legal bodies of countries around the world, especially those most familiar with the practice of this effective dispute settlement procedure.

 

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