Paula Sullaj (MsC)
University “Ismail Qemali” Vlorë, Albania
ABSTRACT: Information and Communication Technology has made great developments these past decades. Its manifestation through the Internet has not only affected the way people interact but lately even the way States communicate with their audiences. This however, leads to new situations which international arena has to deal with and quickly adapt. Such an occurrence happens to be even more new to the way Diplomacy conduces itself. Authors and ambassadors have taken different approaches on the topic but they all agree at one point, Classic Diplomacy is not prepared for this. Thus, it is important to have a look on how these occurrences can be interpreted in the lens of the current international right. The existing treaties on diplomatic and consular relations offer the space for an extended interpretation of certain articles, yet there is a point where this interpretation cannot be done. Simultaneously, the Internet is a phenomenon from which Diplomacy has no escape. Therefore Diplomacy is left with two choices: either to keep up the pace of its legal aspects at the same level of the technological development, or to wait until a customary attitude takes place.
Key words: E- Diplomacy, Internet, International Law, Diplomatic Law, Consular Law, Vienna
Conventions, E- governance.
The international context has changed through various developments, but still some things find change as a hard thing to do. Through diplomacy States interact with each other, in order to come down to settlements or improve relationships. Whilst the Internet is the new way society widely communicates nowadays, it cannot exclude from such an effect even the ways diplomacy conducts itself through it.
The Internet has connected the world in such ways that it would have not be considered possible before. Activism and political changes, sometimes, occur only through and because of it. This big impact has pushed diplomats to use it in the best ways they could think of, keeping in mind the limits diplomacy itself imposes. We can see now Foreign Ministers using social media such as Twitter or Facebook, to communicate with each other and also with their public. This has grown the role of non-governmental organizations and interested public to have a bigger impact on the policies taken by States. Thus, it is now happening what many call “the democratization of diplomacy”. Not only technology and the Internet could be used as a means for public diplomacy and exchanging messages between diplomats. It has been possible that through the Internet diplomats can develop negotiation processes. Of course, this isn’t widely practiced, but anyhow steps have been made into this. E-negotiations, as they are called, would have many beneficial aspects regarding costs, time and also discreteness. A negotiation process made in through such tools would become less visible to the public and thus the decision-making would be done without much pressure. But as everything, it has its drawbacks. As much as secrecy may happen, at the same time cyber attacks, can happen so the information exchanged between diplomats can be used in other means. This is why this whole activity needs also to be regulated in legal forms. Currently there are no treaties made from States on the diplomatic activity and the Internet. This possibly, because there isn’t yet a created custom attitude of States to fall upon agreements.
In this essay, we will try to discuss even further the impact of the Internet in diplomacy. We will see how diplomacy applies its functions via the Internet through the first chapter. Whilst in the second chapter we will be making an interpretation of the Vienna Conventions, regarding the Internet usage from diplomats. And thirdly, we will make some conclusions regarding digital diplomacy.
2. The Internet, a new path to diplomacy?
Although the conception of the Internet dates back to the 1960s it was only until the 1990s that the Internet gained popularity, and together with other technologies deriving from microprocessors gave rise to what is known as the information revolution. New communication tools have allowed a free flow of content and information. As a result information is no longer limited to privileged government officials but is accessed by the general public. Info on a population of a country, its economy or demographics, international statistics and rankings, updates on political events and many other basic information one may access instantly via numerous Internet services such as country’s official site, Wikipedia, “cia World Fact-book”[...]or publicly available sources. Generally speaking the world has never witnessed more transparency than now as the result of the Information Revolution. Information and news is immediately available, and developments in any part of the world have become visible.
But, technology creates the means. The people that use it define the ends to which it is put. Thus Wescott continues arguing that the Internet has three fundamental impacts on international relations:
• it multiplies and amplifies the number of voices and interests involved in international policy-making, complicating international decision-making and reducing the exclusive control of states in the process;
• it accelerates and frees the dissemination of information, accurate or not, about any issue or event which can impact on its consequences and handling;
• it enables traditional diplomatic services to be delivered faster and more cost effectively, both to ones’ own citizens and government, and to those of other countries.
Following these impacts, we realize the growing influence of states, and also non-governmental organizations, businesses and even citizens in decision-making. So, despite how many state structures still exist, in places they are becoming disaggregated or hollowed out. Most people still vote in national elections and pay taxes to national revenue authorities; but their interest, loyalty and activities are becoming more focused at a global, as well as local and national, level. Potter on Cyber-Diplomacy: Managing Foreign Policy in the Twenty-First Century says that this only means that the new technology’s possibilities have “leveled the playing field” in which public diplomacy is conducted.(Qtd.in. H. Hoffman172) So, continue Khatib, Dutton and Thelwall in Public Diplomacy 2.0 “the Internet is used as the starting point for journalists in traditional media for the gathering of topics and opinions. Thus, online content can be very influential in “intermedia agenda setting”, but at the same time it can only realize its power through the old media’s cooperation.(Qtd.in. H. Hoffman175) Also, one key element of public diplomacy, the explaining of policy becomes even more important when citizens are confronted with different, contesting information from sources that all follow their own political agenda. Moreover, public diplomacy actors need to establish a credibility that makes them one of the voices that is heard and trusted among users.
At this point, the role of diplomacy, and what is called public diplomacy, has changed in the need to adapt to these fast changes. This change has been reflected not only in the growing number of subjects, when it comes to international decision-making, but also how governments and diplomats communicate, interact and accomplish their functions with this wider global public. In Transformational Diplomacy, O’ Keefe states that traditional means of public diplomacy such as participation at public events or appearance in media may allow some space only, commonly for the ambassador, while the potential of other mission staff might not get the opportunity. (Qtd. in. Radunovic) Whilst using the Internet, the communication with the public may be more direct and also staff members may be able to do it, in order to create real contact with the audience, be it of the hosting country, or the global audience. For this reason the Information Revolution is the increased risk of being misunderstood. With the constant pressure of diplomats into public diplomacy, information which was traditionally intended for diplomatic recipients is now being delivered also to the non-diplomatic community. Moreover, besides other diplomatic opponents sources which may scrutinize diplomats are increased to the media and public in general, together with non-government and other organizations. This is a side-effect of the fast decision-making diplomats are faced to do when faced with too much information in a very little time. However, we shall discuss the diplomatic functions on the Internet more extendedly below.
3. Virtual diplomacy
We know that diplomacy is an information intensive business, but we have not entirely figured out how to apply technology to meet the mission of statecraft, an area populated by an ever-increasing number of actors, many of whom are not states. The involvement of non-state actors such as corporations, non-governmental organizations (ngos), special interest groups, social movements and even private citizens in affairs of the state is constantly on the increase and is making diplomacy less state-centric. The Internet has become an indispensable tool, alongside official sources, for gathering the information, and the global Internet public has become an indispensable audience to whom to explain the basis of decisions. Westcostt claims that this growing involvement of actors in diplomacy isn’t a product of the Internet itself, but “but it has reinforced the capacity of non-state actors to participate in the debate and outcome”. Government agencies are now using social media to improve public services, reduce costs and increase transparency. Through these media, they can inform citizens, promote their services, seek public views and feedback, and monitor satisfaction with the services they offer so as to improve their quality. As social media enable two-way communication in real time, government agencies can quickly engage citizens as co-producers of services, not just passive recipients. Thus, the Internet has allowed a significant number of diplomatic tasks such as consular or other administrative duties to be effected in an online fashion, yielding many advantages and increased opportunities.
4. Diplomatic functions online
By far, we have been discussing the use of the Communication and Information Technology by states, which has led our focus on diplomatic missions and its use of the Internet. Lately, this usage of technology has been shedding doubts whether there is or not a digital diplomacy under development. But what is or would be a digital diplomacy, or differently called e-diplomacy? Waller calls virtual diplomacy “the decision-making, coordination, communication, and practice of international relations as they are conducted with the aid of information and communications technologies” in his The public diplomacy reader.(Qtd. in. Radunovic) As for William Assanvo “in the term ‘e-Diplomacy’, the key element is not electronic but diplomacy. E-Diplomacy remains Diplomacy not electronics. The e-diplomacy assumes and emphasizes the ‘electronic’ as a tool that should serve a state’s national interests in diplomatic relations.”(Qtd. in. Nweke) The basic functions of a diplomatic mission, among other things, include negotiation, promotion of friendly relations between the host country and the home country, protecting in the receiving State the interests of the sending State and of its nationals etc. Seeing these functions with the Internet usage lenses according to Ambassador Rana, in one of the DiploProjects when speaking about Bilateral diplomacy, contemporary professional diplomacy might be better defined by promotion, outreach, negotiation, feedback, management and servicing.(Qtd. in. Radunovic)
Practically, the Internet, also called a new version of media, holds information in its core. Information takes various shapes on the online ground, starting from texts, video, audio and many other web applications, whose use also could not be neglected by states. Despite how diplomacy bases its communication on more traditional means such as telegrams, letters or personal direct meetings, it has made steps into integrating with this whole new reality. So, the representation and communication between state agents has become much easier and faster. This is why Solomon clarifies through his article The Internet and the Diffusion of Diplomacy, that even though “virtual… implies a lack of reality…, virtual diplomacy, however, is real diplomacy - in the sense of authoritative interactions between officials of different governments”(Qtd. in., Grech). Not only, but networking also helps in “nourishing conversant and updated relations with key actors of the political elite and all the stakeholders in the host country”. Through mobile and web applications, diplomats and state agents not only can communicate with their colleagues and stay up to date with their activities, but their net of acquaintances may grow with a simple click, just by adding someone in the “friend list” without the need to have had a interaction before. This is helpful in two aspects; first, it is an easy way to extend the circle of acquaintances, which may help in accomplishing even more the foreign policy of one’s own country. A friend more, is one more “alley”. Second, through different statements on personal profiles or various posts, it is another way of gathering information either on their mentality or various other subjects, which may come handy in a later time, for example when negotiating.
But when it comes to information, we already said the Internet offers miscellaneous variety. Information is stored in a binary digital format and this property has various advantages. Information may be submitted to various recipients at will and be accessed by virtually anyone with the permission and resources to do so. Although we should admit how the new varieties of information are creating new dilemmas. How can government leaders and diplomats assess the reliability of sources? Which news accounts and political analyses should matter, and which should be discounted? When does the perceived credibility of a source make it worthy of respect, notwithstanding its dubious quality or bias? Hence, gathering reliable information and informed analysis have always been at the heart of foreign policy making. The multiplication of sources of information and advice, combined with the involvement of more actors in the process, make it more important to share information and analysis more widely.
Diplomats do not need information only to report in their home country, but also because it’s very important during the negotiation process. Not only, technology makes the whole process possible without a need to be physically present. Technology has created the possibility for negotiating parties to consult with the home government, foreign ministry or other concerned organizations in a virtual fashion in order to obtain advice. This is why Gregory E. Kersten considers e-negotiation as a social process embedded in technology. In E-negotiations: Towards Engineering of Technology-based Social Processes he follows by saying that the minimal technology-based functions are communication, presentation and interaction in a simple text-based form. At the other end e-negotiation may involve negotiators, decision and negotiation support systems, knowledge based systems and media, all of which are active and creating content. The participants of e-negotiations and the relationships among them comprise an e-negotiation system (ens)”.(Qtd. in. Grench) This can be very well illustrated with the negotiation process of the 24Th November 2005 between the United Kingdom, Canada and European Union, which occurred through a video conference, because the British Prime Minister’s spokesman said on the British Prime Minister Website that “a face-to-face meeting was not possible due to diary commitments, and that video conferencing was an effective use of new technology”(qtd. in. Grench).
When it comes to public diplomacy we can’t but say, it is one of the many important purposes of a diplomatic mission. Partridge explains how it can be used “to gain the support of people and institutions; to attract people to shared freedoms and values; to engage and persuade others about who we are, what we do, and what we stand for; to educate and bond through the exchange of ideas, people, experiences, and trade; and to demonstrate goodwill and a desire to achieve just political arrangements.”(qtd. in. Bollier) And as Sandre puts it ‘On the one hand it allows heads of state and government to broadcast their daily activities and government news to an ever growing audience. On the other hand it allows citizens direct access to their leaders”. So, “the public has acquired the freedom to exert pressure on governmental decisions, particularly in decisions involving international commitments or national interests”, which at times would make it difficult for diplomats to follow their home countries objectives. Thus, explains Faris in Diplomacy, Development and Security in the Information Age, within the era of the three-level game, diplomats continue to mediate state relationships, but must do so with a new appreciation for public opinion as channeled through social media.(Qtd. in.Kalathil6) Moreover, they must comprehend that global publics are now part of creating diplomacy, not merely consuming it. For public diplomacy practitioners it served as a reminder: the world has undergone some rapid and dramatic changes that require them to adapt quickly. New communications platforms are different and digital communication platforms like Twitter, Facebook and blogs are far more democratic. In what will be an incredibly short timeframe, the world will soon reach the point where almost every single person on the planet has the potential to be a publisher, writer, photographer, video producer and blogger. This situation on the other hand leads to many difficulties when decisions need to be made. First, considering the public pressure and its sensibility on certain matters diplomats will need to keep in mind what different non-state actors need and limit their choices within a very short time; also, states in their official websites and profiles in social media do not focus on the message behind the words as much as they focus on being always up to date with all the global happenings at a certain moment. But to understand public diplomacy one needs to also understand how much it is part of a state’s e-governance of. E-governance does not have state representatives as its only subjects, but it also includes IT technicians, secretaries and all the staff that makes the web page more communicative and updated. In the same way, the public diplomacy of a state isn’t entirely made of state representatives, but most of the times it is made of people who stay behind the scenes. This of course leads also to some risks, such as those communicating with the public are not connected to the state by obvious string therefore in the public’s eye the chief representative is the one at fault. Another example would be the act of the employees of the Department of State, who posted pictures of their Frappucinos thus reaching out with a very typical feature of Twitter, the sharing of frequent life updates. However, the United States were on the verge of war during this time, which made the post seem cynical and did not help the public diplomacy of the state at all.(qtd. in. Hoffman184) So, as we have seen by far the role of the state in public diplomacy has become more interactive, which has led to a deviance from traditional diplomacy that used public speeches, or interviews in the media as the only way of communicating. Furthermore, with the information technology it has become easier to promote businesses, culture and tourism of the home country. Showing the mission, functions and competences of the diplomatic mission has also become more cost-free. In some cases states have even used virtual embassies as a better way of introducing their international politics; we could mention the case of the virtual embassy of the United States in Iran, or the e-embassy of Estonia, which is a representation of the real diplomatic mission the Estonian state. Obviously public diplomacy is diplomacy using information technology as the main tool to orient itself directly toward citizens. Listening can be done through media monitoring and opinion polls, but nowhere can it be done as easily – and cheaply - as on Twitter: here one can simply check the trending topics and read millions of users’ thoughts on Swedish politics, Iranian riots or the Belgian candidate in the Eurovision Song Contest. This attempt to a more direct communication has led to what many call Twiplomacy.
Twiplomacy “is forcing its way onto the foreign policy agenda as a consolidated e-diplomacy tool to rethink objectives and better respond to new challenges.”At the same time its risk o is evident when you do not know the public reading the screen and its interpretations of each word. This hasn’t stopped many diplomats to use Twitter or Facebook to even communicate with their colleagues. In May 2011, Carl Bildt, the Swedish foreign minister, also crowned as the most well-connected foreign minister on social media site Twitter,after various attempts to communicate with his counterpart in Bahrain, Foreign Minister Khalid bin Ahmed Al Khalifa – aka @khalidalkhalifa – by traditional means of communication, he decided to tweet him. Al Khalifa didn’t take long to respond – using the more traditional diplomatic channels – but he couldn’t resist responding on Twitter. When taken in an interview by the Associated Press asked if that was the future of diplomacy, Blidt said “It shows that in the modern world you can seek contact in modern ways”. But do these modern ways include non-formal language, something that traditional diplomacy is very fond of? James Carafano expressed himself on this matter saying that “If somebody thinks that 140 characters is the diplomatic solution to solving the world’s problems, and then we’ve got a big problem” he continues “Twitter really wasn’t created for diplomacy. Twitter’s not even created to have a conversation.”(Qtd. in. Sandre19)Furthermore, Article 41(2) of the Vienna Convention on Diplomatic Relations, states that every official business between the sending and receiving State should be done with/through the Ministry of Foreign Affairs, does this mean that all the communications done from diplomats on social media do not have a legal status? Kurbalija’s presents two future-images of this aspect; the first one is an internet-based interpretation of the Vienna Convention on Diplomatic Relations; whilst the second prediction includes the adoption of an ‘internet protocol’, which would provide explanations of the current rules and contain other rules for the new arising problems. Apparently diplomacy is in between traditional means and modern ones. Considering how politics needs to grow its impact by any ways possible, it may still be difficult for diplomats to get adapted to this new reality. However, it is certain that face-to-face diplomacy is still a proper way of conducting proper diplomacy.
5. The legal aspects of digital diplomacy
The Vienna Convention on Diplomatic Relations and The Vienna Convention Consular Relations are both treaties deeply based in the customary law of diplomatic relations between states, thus its articles are obligatory not only to those states which ratified the treaties, but also to the entire international community, because of the force customary law holds within. The diplomatic law covers three main areas: (1) the establishment of diplomatic relations and the status of diplomatic missions; (2) the performance of diplomatic functions; and (3) diplomatic immunities, privileges, and facilities. But how can these areas be interpreted with the fast changes technology has had these 50 years? We previously discussed the influence of the Internet in the functions of the diplomatic mission, that is why in this section we will focus on the diplomatic immunities, privileges and facilities provided in the Conventions, of course interpreting by including the Internet’s influence in them all, because the Internet is now “an inseparable part of the process of global political change”.
6. Immunities, privileges and facilities in the Internet era
Despite the different theories which discuss the legal source of immunities, it is now widely accepted that immunities were given in order to provide the representatives of the sending State the optimal conditions to pursue their mission. This is also provided in the v.c.d.r., in its preamble is clearly stated “that the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States”. In this case the State is the one holding the right to immunity, an immunity that prevents the sovereign state itself or its representative from being subjected to suit without its consent. The immunity of the diplomatic agent last as much as his mission does, and he isn’t subject to the national laws of the host state for criminal acts made during his mission, even though the host state has rights to exchange diplomatic notes with the sending state, or to even announce the agent as persona non grata. When it comes to the immunities of the diplomatic agent, they are somewhat less than those of the diplomatic one. The Vienna Convention on Consular Relations protects the inviolability of consular officers up to a certain point. The inviolability of a consular agent can be possible in the case of a grave crime and pursuant to a decision by the competent judicial authority, but always after sending before a notification of arrest, detention or prosecution to the head of the consular post or the sending state itself. Is should be said that diplomatic agents and consular officials aren’t the only ones to be given immunities. The diplomatic mission also holds immunities given by the Convents, also members of the administrative and technical staff of the mission, the family members of the diplomatic mission residing in the receiving state, these immunities however are far more less when it comes to members of consular staff. However, “without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of that State.”, So, the right of immunity belongs only to the sending state and none of his representatives and at the same it the obligation to respect this immunity fall onto the receiving state, who has to take all the necessary measures to ensure a peaceful environment for the diplomatic mission to be developed. “The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity”, this is also valid when it comes to protect the consular premises. The same obligations fall on the residence state of an international organization, the invader country of the receiving state, or the receiving state of a government in exile.
7. The immunities of the diplomatic mission are expressed in both Vienna conventions
These immunities mostly regard the inviolability of premises, the prohibition of entering the premise without the consent of the chief of the mission, the prohibition of taking executive measures from the host state in the premises of the sending state, the immunity from jurisdiction, protecting mission goods that are outside the mission and so on. There are of course some differences in the provisions of each Convention and this will be shown even when interpreting them in the Internet context. The Internet has of course changed some developments of diplomacy, but can these developments be considered within or without an extended interpretation of the Vienna Conventions?
The inviolability of premises is widely accepted under international law. Inviolability usually means exemptions from the jurisdiction of the receiving State. Thus, the first element of inviolability is the freedom of the premises from entry by authorities of receiving State. Even when crimes are being committed inside the premises of the diplomatic mission, the only way by which receiving State agencies can enter diplomatic missions is to obtain consent of the head of the mission. Whilst the v.c.c.r. adds some limits to this guarantee such as allowing the authorities of the receiving State to enter that part of consular premises used for work when a permition “of the head of the consular post or of his designee or of the head of the diplomatic mission of the sending State”. Assuming for an instance, that a diplomatic mission or a consular post is used to commit Internet-related crimes, for example, computers inside the diplomatic mission are used to create viruses that steal the bank information of the citizens in the host State, or perhaps are preparing a cyber terrorism attack in the receiving state. Even if such an activity may have been noticed by the receiving State, yet for it to interfere in the diplomatic premises without the consent of the head of the mission is impossible. Where cyber crimes are committed on the premises of consular posts, the agents have more options. Firstly, entry into parts of the premises of consular post unrelated to consular function is not restricted. Thus, the agents may enter these parts and gather more evidence from there. Secondly, agents may enter parts of the premises used exclusively for consular function, after obtaining the consent of either the head of the post or his designee, or the head of the diplomatic mission of the sending State. Then again, according to both Conventions the host State has the duty “to take all appropriate steps to protect the consular premises against any intrusion or damage and to prevent any disturbance of the peace of the consular post or impairment of its dignity”. The intrusion and damage mentioned in this paragraph of the article are somewhat mentioned in the previous paragraph of the same article, where the authorities of the receiving State are allowed to enter the consular premise and the “consent of the head of the consular post may, however, be assumed in case of fire or other disaster requiring prompt protective action”. Professor Choi, argues that if certain people try to spread computer viruses into the computer of the consular post, this could be considered as an “other disaster” and so the receiving State could enter in the consular post in application to the Article 31(2) of the v.c.c.r. She continues by saying “the dictionary meaning of the word “disaster” is not confined to natural disasters.[...] In this sense, the v.c.c.r. can be interpreted in such a way that, in emergency situations... agents of the receiving State may enter the premises of the consular post without consent.” She follows by saying that “disaster exception” only applies to situations where the diplomatic mission or consular post falls victim to a cyber disaster originating from outside. In other words, situations in which the mission or post itself generates cyber disaster to the outside are not covered. In any case, the authorities of the receiving state are not allowed to withdraw any device in the consular premise, not matter how much suspicious their usage may be. However, it is not clear whether inviolability could be extended to digital assets which are located outside the mission on, for example, internet servers in a cloud. For the protection of this type of digital asset, the closest analogy is the protection of bank accounts, which are held outside the premises of the mission. Denza interprets this issue further by including the Convention on Special Missions (1969), whose 25th article “includes inviolability to ‘other property used in the operation of the special mission’, however, some digital assets such as electronic documents could enjoy wider protection via the provision of Article 24 of the v.c.d.r. that guarantees protection of diplomatic archives ‘at any time and wherever they may be’.(Qtd. in. Kurbalija)
The inviolability of Archives and Documents is provided in Article 24 of v.c.d.r., which states that “The archives and documents of the mission shall be inviolable at any time and wherever they may be.” The word ‘documents’ mentioned in the Article should not exclude from its meaning electronic documents like computer files, cd-s or any other means in which an electronic document may be stored. Choi says that it should not matter if these electronic files are saved in the main system computer of the mission or post as disposable files, Web-pages or binary codes, because also enjoy this privilege of inviolability. Therefore, any kind of electronic document cannot be opened, searched, or requisitioned without the permission of diplomats or consuls. This protection is strengthened by the phrase ‘wherever they may be’ including within also databases, electronic documents and emails stored in cloud servers and services such as GoogleDocs or Skydrive. Thus, Kurbalija discusses, diplomatic archives and documents found outside the mission enjoy immunity, even if they are not clearly marked or otherwise identifiable as diplomatic documents. “This decision does not help to solve the question of the immunity of diplomatic digital assets saved on servers in a cloud.” It would be more than normal to further ask, up at what point should the receiving state protect these immunities? This is a question customary law will probably give an answer, sooner or later.
Freedom of communication is another immunity provided to the diplomatic mission of the sending State, which finds ground in various articles of v.c.d.r. and v.c.c.r. Thus, Art. 27(1) provides again the obligation of the receiving State to “permit and protect free communication on the part of the mission for all official purposes.” The entire Article 27 of the v.c.d.r., describes various immunities given in this aspect, such as free communication, inviolability of the official correspondence, the prohibition of opening the diplomatic bag even when entrusted “to the captain of a commercial aircraft scheduled to land at an authorized port of entry” and similar predictions are made in the v.c.c.r. in its 35th Article. Technology has mainly been used as a tool of communication between diplomats ever since the telegram was invented, so it is apt to say how the Internet is mainly being used as a tool of communication between diplomats too. This is why it is closely related to the freedom of communication in diplomacy. As both the v.c.d.r. and the v.c.c.r. define “official correspondence” as “all correspondence relating to the mission or consular post and its functions”,it can include e-mails if the mission or post uses these as a means of correspondence with the headquarters or other mission or post. In such cases, the e-mails are “inviolable”.This is why it is important that the receiving State provides all the sufficient tools for this service to be applicable, but also to make sure that the Internet connection used by the diplomatic mission or consular post doesn’t slow down or block. These measures should be taken towards all people or organizations who try to impend Internet communications for diplomacy.Besides the host State, Article 40(3) of the v.c.d.r. requires third-party countries to protect diplomatic communication in transit. It extends protection of diplomatic communication to all places where internet communication passes. For example, diplomatic messages sent from a diplomat’s device, be it a computer, tablet or Smartphone in Italy, to a server in the US enjoys protection along the internet path.
Use of Wireless Facilities by Diplomatic Missions is one of the means that enables the freedom of communication, because an internet connection may be possible even through wireless waves. The connection, thus, between these two cannot be avoided. Article 27(1) limits the usage of a wireless transmitter (a) for the communication of diplomatic missions and (b) only with the consent of the receiving State. Thus, alongside with Art. 41(3) of v.c.d.r., the limitations posed to the diplomat rises. For this reason, Kurbalija predicts that by giving international telecommunication regulations priority over diplomatic law [...] may be used in the future by States to reduce the freedom of diplomatic communication on the basis of enforcing telecommunication standards and regulations.
Diplomatic or consular bags enjoy inviolability generally by both Conventions. The only difference in consular bags stands on the ability of the host State to limit this inviolability. Like this, Art. 35(3) of v.c.c.r. says that the authorities of the receiving State, have the right to make such a limit if “have serious reason to believe that the bag contains something other than the correspondence, documents or articles referred to in paragraph 4”, but only within “the presence of an authorized representative of the sending State”. One should note that mere “serious reason to believe” is not sufficient to return the diplomatic bag, but instead “clear evidence” is required. The reason why a stricter requirement is imposed for the case of diplomatic bags is because the v.c.d.r. has no provision of exception to the inviolability. When speaking of a diplomatic bag on the web, this of course, should be considered more when applications of sharing files or the e-mail are being used. In this case, the receiving State would find difficulties in finding whether an e-mail or a file is part of the diplomatic bag or not. Suggestions say that it would be a good idea if these digital files could have a digital mark on them, somewhat similar to that on a real diplomatic bag, by which certain programs or web applicationswould recognize the diplomatic e-bag. At the same time, cyber bags carrying contents unrelated to official diplomatic or consular functions such as private information, spying information or contents, child pornography, gambling, computer virus, or cyber bombs may be blocked with proper evidence or reasons in accordance with due process.
II. 1. B. The inviolability of the members of the diplomatic mission is not a right belonging to the individuals but it is a right given to them by the representation State. So, in each and every case the State carries the responsibility for their misdoings, and vice versa the diplomats carry the duty to represent their State properly. Based on the function these individuals have, it has been given them a certain amount of immunities and privileges.
Immunities of the Head of the State derive from the times of absolute monarchies, when the sovereign, so the monarch, held absolute immunity. Even though, it has a customary nature and it isn’t provided in the Vienna Conventions, the norm still applies. There is one treaty of the United Nations, the Convention on Special Missions of 1969, which includes this immunity in one of its articles. Thus whenever they may commit a crime within the territory of a receiving country, they profit exception from it. That is not to say the criminal act has been deleted, or revoked, it is still present and if it’s been made during personal activities whilst the diplomatic mission, by the end of the mission the receiving state may exercise its jurisdiction upon him. There have not been cases where such an issue may have occurred, when using the Internet, it can be assumed that acts like using the Internet to order, solicit, induce, aid, abet, or assist the commission of genocide, crimes against humanity, or war crimes conducted by a national of a state party of icc Statute or in the territory of a state party of icc Statute, those diplomats or consuls may be punished despite the immunity from criminal jurisdiction that they usually enjoy.
The immunity from Criminal or Civil Jurisdiction- diplomats is provided in Art. 31(1) of v.c.d.r. and it states how a diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction. So if diplomats, or any of their family members commit or attempt cyber attacks, their immunity is what makes then inviolable, and keeps them our of the jurisdiction of the receiving State. Choi states that if actions committed in cyber space by diplomats or their family members result in civil responsibility such as defamation, they can also enjoy immunity from civil jurisdiction. The Convention, however, specifies three situations when, the immunity may be limited, in whose core stands the idea of performing activities outside the official functions. The same applies to Consuls, except when they are committed cyber crimes or civil offenses are “not liable to arrest or detention pending trial, except in the case of a grave crime, and pursuant to a decision by the competent judicial authority”. In such accusations, diplomats and their family members may refuse to witness in cases involving Internet-related crimes or civil actions, as opposed to consuls. Hence, it is always possible that cyber crimes or other misbehaviors by diplomats or consuls are punished, or held liable, in the sending State or even in the receiving State. But what if the diplomat or consul commits acts that fall under the jurisdiction of international criminal law? In such cases it is already provided that the immunity breaches and the individual is thus under judgment. This could also be more broadly interpreted in the light of the Internet. So if diplomats were to use the Internet to order, solicit, induce, aid, abet, or assist the commission of genocide, crimes against humanity, or war crimes conducted by a national of a state party of icc Statute or in the territory of a state party of icc Statute their immunity
wouldn’t last any longer.
Through this essay, we have seen the route diplomatic missions and the Internet have followed together in the last decades. Diplomacy makes a use of technology in order to properly apply its functions. However, considering the big impact the Internet has had on everyone’s lives, diplomacy has not been entirely able to fully avoid this influence. One of the main purposes in diplomacy is to fully follow the interests and politics of its representing State. That being said, we are still wondering if there exists a proper digital diplomacy. Of course that the Vienna Conventions allow space for a further interpretation of their articles so that there is space for the Internet. For now, the Internet is mainly used as a way of better fulfilling functions of the diplomatic missions and at the same time as a means of communication. It allows citizens to better know understand and get informed regarding their home country, but at the same time the audience is much bigger than before, which serves as a bonus for a better implementation of state policy. Also, it allows the public to directly speak with their representative, so all the bureaucratic paper procedure is fastened. Citizens can get answers anywhere within a very short amount of time. Public diplomacy sounds as a better version for the state to make its impact in a faster, broader and cheaper way. However, it isn’t all about the positive aspects when we take a deeper insight. There is no certainty for the simple public, whether they are speaking to the real representative or not. The person hiding writing in the other monitor may be personnel of the administration, or even worse a hacker or a terrorist. When it comes to cyber terrorism things start being frightening, because the power a terrorist can assume from interfering in a diplomatic premise holds within not only the power of a state, but also millions of lives. Also, when being too enthusiastic about digital diplomacy, we should at the same time bear in mind digital divide. Digital divide means that not every citizen of a state can either afford, or use a high technology gadget such as smart phones, lap tops etc. And lastly, considering the major number of followers on Twitter, or friends/likes on Facebook the representative of the state won’t surely know how his/her statements will be taken. This could lead to higher pressure in decision-making and more thinking when posting; but this would seem a little difficult in a world that teams in information and the reactions need to be made quickly.
The legal aspect of the whole situation is also very important. The legacy of diplomacy is firstly found in customary law and then in the materialization of treaties, like the two main ones, the v.c.d.r. and v.c.c.r.. These two, specify the role of the diplomatic mission as a representative of the sending State, thus gaining immunity only because of the function. What would happen to these immunities when applied in a territory that belongs to none and everyone at once? An extended interpretation of the Conventions can be surely done. Nonetheless, questions arise when it comes to the safety of the diplomatic bag on the internet, or as we preferred to call it e-bag, its inviolability and the protections the host State should do in such situation. Different authors give the option of a digital mark of every digital information considered as a diplomatic bag. This would be easier for the receiving State to protect it and also not to control it. But how far is the actual diplomacy from it? Would it not be easier to ensure regulating laws at this point, or should we wait for an instant custom to rise, in order for diplomacy to find its way? At the same time, what is the legitimacy of posts and twits between diplomats, if they do not fall under the belonging Ministries of Foreign Affairs? What if each and every claim made online by representatives, would be taken as it was done by the representing State, so this last one would be asked to take responsibility? Of course politics, has its ways of understanding things according to internal interests, but willingly or not, the Internet is changing things, so it would be best for things to be seen from different perspectives, and not only the personal ones. People nowadays worry about everything happening on this planet, because deep in them lays humanity and the need for a prosperous community. For this reason, it should be best if everything else follows the same path.