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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


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

50. Consistency in Diplomacy

1 Dec

Consistency in Diplomacy

 1. In the international arena at the present time, the speed and intensity of the changes resulting from globalization and the multiplicity of actions and trading relations and, above all, the extraordinary effects of the communications revolution, has introduced sharp changes in the orientation, design and implementation of international relations.

2. In a world that has become “tight but diverse” it is an indisputable fact that diplomacy, as he executor of the State’s foreign policy has acquired primary importance. There are now numerous international and even daring opportunities that the State can take advantage of to conduct trade, to cooperate in various fields and to acquire the necessary knowledge to develop harmony between other States.

 3. It is clear that consistency in diplomacy is a key principle, due to the diversity and complexity of the issues made by the State today. It is necessary to remember that diplomacy is neither an invention nor the thought of any given political system, but an essential element in any rational relationship between nations.

4. In practical terms, the Foreign Ministry, with a sense of responsibility and consonant with the public trust of the nation’s citizens, manages international issues consistently with the care and restraint of the required actions.

5. Accordingly, States are often represented abroad by its “more worthy” citizens who for very obvious reasons are considered for such appointments. The receiving States must provide these envoys with the privileges and immunities, essential for the effectiveness of the management of their missions and their diplomatic actions.

6. While diplomats work out the principles of foreign policy of their States, a most important part in the formulation and modification of such a policy is enabled through their reports from their posts abroad.

7. Undoubtedly, procedures of diplomacy are in effect today because of their essential advantages for communication among States, with necessary adjustments imposed by the evolution of techniques and customs. All of these are essentials of the principles, standards and procedures of diplomatic practice.

8. In the same direction, governments still tend to ignore the “unofficial emissaries” and to question their authority, but in the case of diplomatic missions they are required to take account of the authority and representation of these emissaries acting in accordance with the existing rules of international coexistence and according to the principle of reciprocity.

9. Governments, Foreign Ministries and embassies are in these changing times beset by “intermediaries” offering all kinds of services, contacts and even confidential information. These offers must be carefully screened before any “formal” arrangements are reached with such “intermediaries.” The effectiveness of these arrangements is sometimes very useful.

10. There are also times when a “parallel diplomacy” is practised through the efforts made abroad by state institutions, without the direction, control or knowledge of the Ministry of Foreign Affairs. These actions run counter to the fundamental principle of unity of action outside of the State and even conceptual contradictions are noticed critically by foreign governments.

 © by Odeen Ishmael 

49. Good Office

19 Nov

Good Office

1. Internationally the term “good office” has been used with different meanings, but its increased use is probably more appropriate since international law regards it as a political-diplomatic means of peaceful settlement of disputes.

2. Good office consists of the friendly intervention of a third country (or personality with respected moral authority or an international body) outside the dispute in question, which acts to consult with two (or more) states which are in conflict (armed or not) in order to start or resume direct negotiations between them. The purpose is to try to establish an atmosphere conducive to peaceful dialogue.

3. Any State may offer good office if disputing States request it. The good office of mediation by a third may have a different approach if that third State is merely attempting rapprochement of the parties without making any proposal for resolving the conflict.

4. In essence, good office’s manager urges the disputing nations to initiate or resume negotiations when the problem has outstripped the capacity of solution by the principal parties.

5. The good office can also act as mediator if that is requested. In mediation, the good office intervenes more actively, not only proposing a solution to the problem but involving itself in the discussions between the parties to discuss and encourage the proposed solutions. Mediation is halfway between the good office and conciliation because it does more than just to bring the parties in conflict to the bargaining table.

6. The good office makes efforts of goodwill and reconciliation which are not compulsive. They consist of urging the disputing nations to resort to negotiations between them. The manager of the good office, if he expresses his opinion on the matter of substance, became the mediator – a situation which can occur frequently in the course of the exercise of good office.

7. The good office is part of the so-called political-diplomatic methods of settlement that provides for in Article 33 of the UN Charter. It is applied first and may be followed by other procedures such as commissions of inquiry and conciliation, and also legal settlement including arbitration and judicial settlement which are binding on the parties.

8. The good office coexists with other forms of conflict resolution, some of which are “coercive,” not involving a war but can through certain actions compel a State to fulfil its international duties.

9. 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. As international disputes are very different in nature, procedures to fix them are also numerous and varied. The UN in its Charter has established the most desirable methods of peaceful settlement, while authorising its Member States to choose the system they deem most appropriate.

10. The good office as a major aspect of diplomacy can prevent the exercise of force by showing the effectiveness of nonviolence, that is, the possibility of settling disputes without provoking violent conflict. The guarantee of a dialogue requires that existence always of a reason to negotiate. The real test of strength is not war but peace which is not a state but a task. The involvement of the good office in finding solutions is laudable and does not imply a weakness by nations seeking peace, since by its very nature, it assists in the control of hostile factors that prevent amicable settlement.

 © by Odeen Ishmael 


48. Self-determination as a right

17 Nov

Self-determination as a right

1. Independence for the States today is the ability and willingness to freely set for themselves their own objectives and the relevant strategy for achieving them, and defining and implementing the internal and external politics which dictate their interests.

2. Self-determination and sovereignty cannot mean isolation. However, the exercise of this status gives a State to exercise its political power with the highest authority without external interference.

3. Similarly, independence usually means that the State has the constituent and reserve domain over domestic jurisdiction. Independence and self-determination are virtually synonymous and really are the essential attributes of the traditional legal conception of sovereignty and supremacy over the inhabitants of a territory without the intervention of an external party.

4. While the right of self-determination, secession and the principle of nationalities are different forms of inequity. In the field of international law are words that describe the same phenomenon.

5. Strictly speaking, self-determination must be understood by a community’s right to exercise the first act of popular sovereignty, namely the exercise of constituent power and, following this, to be respected in their independence by other members of the international community, under so-called principle of “non-intervention” in internal matters reserved to the domestic jurisdiction.

6. On the other hand, secessionist demands and repression on behalf of the territorial integrity of the States have generated fierce wars and other events including terrorism.

7. The case for the applicability of the right of self-determination by a secessionist entity becomes very strong when it is supported by the overwhelming majority of the citizens. The degree of global harmony resulting from the secession depends on the viability of the new state and the consequences of secession.

8. Over time, “self-determination of peoples” has achieved the prestige of regulatory recognition. Beginning in 1918, it was a late manifestation of the national claims of the nineteenth century which were closely linked to the treatment of national minorities. After WWII, with the establishment of the UN, this fundamental principle was to become the political and legal instrument to promote the decolonisation movement.

9. In a technical sense, self-determination of a territorial unit allows it to become independent and live separately from any other unit; and create a new state or the existing rule without interference from external parties.

10. There are two general forms of self-determination: external self-determination refers to a claim of sovereignty of a people without a state, while internal self-determination refers to the demand of people within an internal state. Both make the same request: non-intervention of others.

© by Odeen Ishmael 

47. Secret diplomacy and “Raison d’Etat”

31 Oct

Secret diplomacy and “Raison d’Etat”

1. The field of international relations split into two stages the historical trajectory of diplomatic procedures, taking into account actual motivations rather than the fundamental concepts that underpin this exercise. These two stages are secret diplomacy and open diplomacy.

2. One could consider that the path of diplomacy from its origins has corresponded practically to secret diplomacy, which survived until the First World War. A secret diplomacy opposes open diplomacy, commonly practiced today, which has been the result of an intense and complex evolutionary process in the field of international relations which led to the enactment of the Charter of San Francisco which became the Charter of the United Nations Organisation.

3. It is worth noting that secret diplomacy has been the characteristic of this procedure for the duration of the exercise and was considered normal and desirable at the time. Actually, international commitments (treaties, agreements, covenants, among others) were not known by other nations, nor by public opinion nationally and internationally.

4. Secret diplomacy invoked the to justify many of the actions of both foreign policy and domestic policy. “Raison d’Etat” (state reason) is the historical foundation of a political theory by which the State’s interests take precedence over all others. It became an intrinsic decision based on genuine interest of the nation.

5. The invocation of “Raison d’Etat” usually occurs when a conflict arises as a result of political action and the State will place its resources in handling this particular issue at the expense of other national issues which may also be demanding attention. Through “Raison d’Etat” many dishonest operations have been conducted by governments. In despotic regimes, particularly, many unjust actions have been covered up or justified through the explanation “Raison d’Etat.”

6. “Raison d’Etat” has been invoked for centuries in order not to give account or explain a governmental decision, or cases of human rights violation or the miscarriage of justice. It has also been conceptualised the modern version of an old Machiavellian rule of thumb attributed to propose that government actions can only be judged by their success. “Raison d’Etat” actually proclaims that “the end justifies the means,” viewed as a landmark feature of the so-called “Machiavellian politics” which proclaims that “the Prince is the State.”

7. The era of secret diplomacy had its greatest diplomatic development mode which could be described as “Machiavellian diplomacy” which consisted of sinister techniques in pursuing national objectives. With the advent of open diplomacy it is now more difficult to implementation such actions.

8. The first half of the twentieth century was marked by two world wars. The world forged by the Congress of Vienna in 1815 was destroyed in World War I (1914-1919), and a few years after the society of nations was powerless to prevent the Second (1939-1945). Everything was affected as a result of these two great calamities suffered by humanity and next to the reconstruction plans of countries and their economies, it was necessary to revise the existing principles of international coexistence. It was in this context that the so-called open diplomacy arose. This type of diplomacy begins with fundamental changes in the diplomatic procedures that include the publication and registration of international treaties.

9. With the implementation of open diplomacy, global multilateral diplomacy has now become institutionalised. Before the development of global multilateral diplomacy, bilateral relations played the main role in diplomacy. Now, multilateral diplomacy has become a key factor in international relations.

© by Odeen Ishmael