Diplomatic Law Guide

‘Quam fluctus diversi, quam mare conjuncti – though the waves are many, the sea is one.’

In the late 1980’s secret talks were held in England between the African National Congress – the political party who spearheaded the South African independence movement, and the South African Government. These took place in a series of clandestine meetings held over several years, which were set up and mediated by an executive with Consolidated Goldfields, a British mining company which had a commercial stake in the future political stability of South Africa, see: Michael Young discusses his role as facilitator in anti-apartheid negotiations – Harvard Law School | Harvard Law School

Inspired by that model and other precedents, including the mediated talks which resulted in the 1998 Good Friday Agreement, and lessons which can be drawn today from diplomacy conducted in the Middle East by Henry Kissinger during the Nixon and Ford administrations, and by Dennis Ross who was the chief Middle East peace negotiator for both George H.W. Bush and Bill Clinton, this website contains an evolving bank of legal materials, on-line library resources, news, talks, articles, and blogs, about the dynamic and inter-related subjects of:

(i) International Humanitarian Law & Mediation;

(ii) Geopolitical Mediation & Peace Building;

(iii) Track 2 Diplomacy; and

(iv) the Negotiation of Political Order, i.e. the negotiation through a Track 2 mediated process, of constitutional principles and an institutional framework for political survival and co-existence of the ‘stakeholders’ in a geo-political conflict, with the ambition of jointly developing a road-map for peace (i.e. a ‘Peace Process’), which results in the agreement and practical implementation of a coherent, comprehensive and sustainable ‘political’ solution to the underlying ‘root’ and ‘dynamic’ causes of the conflict (i.e. a ‘Peace Treaty’). Thereby ensuring peace underwritten by security guarantees and International Law.

I founded this website in June 2014, and it was listed with my permission, on the website of the United States ‘American Foreign Service Association’ (the ‘AFSA’) based in Washington DC underneath the heading ‘Codes of Conduct from Other Services/Countries’ (http://www.afsa.org/ethics).

According to Google Analytics, in under 10 weeks the website grew from a zero readership to a weekly audience spread across Canada, the USA, South America, the Caribbean, the UK, the Netherlands, Belgium, Germany, France, Spain, Italy, Ukraine, the Russian Federation, North Africa, the Gulf states, Pakistan, India, China, South East Asia, and Australasia.

Carl Amir-UL Islam

B.Soc.Sc (Keele) (Joint-Honours) (Law & Political Science), LLM (Exon) (International Business Legal Studies), Diploma in Art Law (Institute of Art & Law) (London), of Lincoln’s Inn and the Middle Temple, Barrister-at-Law (practising), TEP, SCMA Accredited Mediation Advocate, Accredited Mediator and MSoM (Full Member of the Society of Mediators in London). CMC Registered Mediator: Mediator Search — Civil Mediation

1 EC Barristers, 3 Kings Bench Walk North, Temple, London EC4Y 7HR.  (www.1ec.co.uk) and (www.ihtbar.com).

Dual qualified as a Solicitor of the Supreme Court.

Founder of the Diplomatic Law Guide and author of ‘The inviolability of diplomatic and consular premises’ (1988), which was the first article to be published about the existence and legal effect of the Diplomatic and Consular Premises Act 1987. Diplomatic and Consular Premises Act 1987 – Wikipedia

Text version available HERE.  ‘The article was very helpful for getting our heads round a law we didn’t know existed until last night, so your work was put to good use.’ Dave McMullan, Senior Broadcast Journalist, The Today Programme, BBC Radio 4 (15 August 2012).

As a Mediator, I have a research and writing interest in relation to International Humanitarian Law, see my essay on the International Humanitarian Law page at www.carlislam.couk ‘Cultural Heritage Diplomacy & IHL – Are Principles of Humanity under International Humanitarian Law a diplomatic tool in mediating a peace process and agreement?’.

In 2025, I plan to research and write an article entitled, ‘Ethical Principles Underlying Peremptory Norms of International Humanitarian Law.’ 

In international relations theory, it is a cannon of realist doctrine that a policy which is strategically and morally bankrupt will neither serve and advance your interests nor has any ethical raison d’être.

Because it does not align with core principles underlying the policy-maker’s interests and may prove to be antithetical, it is not rational and is a geopolitical mistake.

Applying this principle to the design of a political structure [‘PS’], the likely consequence is that PS will not survive.

That is because in balance of power politics, PS may threaten the interests of key stakeholders [‘KS’] including:
(a) demographic groups with the territory of PS;
(b) neighbouring states; and
(c) regional hegemons/aspiring hegemons and their proxies.

If PS has no legitimacy at birth, then inevitably this will take all key stakeholders back to square one, i.e. it will result in a resumption of armed conflict. So, as a political solution, at every level, PS will prove to be a failure.

However, if the geopolitical architects of PS can balance ‘realism’ with ‘practical ethics’, then arguably PS can achieve legitimacy by applying for membership of the United Nations, i.e. as a state recognized by each KS UN member state [‘UNKSMS’].

If each KS acknowledges and supports this political endgame, then a balance can be agreed through a mediated process, and a mediator tool is the previously uncharted body of ethical principles underlying peremptory norms of international humanitarian law, upon which each UNKSMS can agree.

If the endgame is achieved, then PS can integrate with each UNKSMS in order ensure and maintain stability in the region for the mutual benefit of each UNKSMS. This may take the form of interdependence through collaboration e.g. in education, trade, infrastructure development, investment, and mutual security – including environmental protection.

Writing in ‘Foreign Affairs’ 20.02.2024, in an article – ‘The strange resurrection of the two state solution – how an unimaginable war could bring about the only imaginable peace’, Martin Indyk wrote:

‘Wars often don’t end until both sides have exhausted themselves and become convinced that they are better off coexisting with their enemies than pursuing a futile effort to destroy them. … Over time, majorities in both societies may recognize that the only way to secure the future for their children is to separate out of respect rather than engage out of hatred.’

The design and evolution of a two-state solution is not a unilateral process. At some point, when each KS is ready to talk, it will require a process of geopolitical mediation in order for each KS to arrive at the realisation that ‘the only way to secure the future for their children is to separate out of respect rather than engage out of hatred.’

That is the break-through moment.

The article will also explore: (i) the existence of ‘fiduciary’ duties owed by states under International Law to both their own people and to humanity, i.e. to the international community as a whole – the ‘Dual Commission’ principle; and (ii) the intersection and nexus between jus cogens and erga omnes under International Humanitarian Law, including the absolute prohibition against genocide.

‘Verdross argued that states bore an imperative duty under international law to undertake certain moral tasks. Lauterpacht asserted that peremptory norms derive their unique legal authority from two interrelated sources – international morality and general principles of state practice. In Lauterpacht’s view, “overriding principles of international law,” [which in the author’s submission includes a duty by an occupier to protect ancient public monuments located in the occupied territory – subject to the doctrine of military necessity], “may be regarded as constituting principles of international public order (ordre international public). These principles … may be expressive of rules of international morality so cogent that an international tribunal would consider them forming a part of those principles of law generally recognised by civilised nations which the ICJ is bound to apply [under] it statute.” … Kant’s theory of international law ultimately relies on his social contract theory of the state. [The] theory we defend is that the state and its institutions are fiduciaries of the people subject to state power, and therefore a state’s claim to sovereignty, properly understood, relies on its fulfilment of a multifaceted and overarching fiduciary obligation to respect the agency and dignity of the people subject to state power. One of the requirements of this obligation – is compliance with jus cogens. Put another way, the fiduciary principle governs the relationship between the state and its people, and this principle requires the state to comply with peremptory norms. … Fiduciary relations arise from circumstances in which one party (the fiduciary) holds discretionary power of an administrative nature over the legal or practical interests of another party (the beneficiary), and the beneficiary is  peculiarly vulnerable to the fiduciary’s power in the sense that she is unable, either as a matter of fact or law, to exercise the entrusted power. … The fiduciary’s power is purposive in that it is held or conferred for limited purposes, such as furthering exclusively the equitable interests of a trust’s beneficiary.  And finally, the power is institutional in that it must be situated within a legally permissible institution.  … The law seeks to dissolve rather than regulate relationships of incorrigible domination. Beneficiaries are particularly vulnerable in that, once in a fiduciary relationship, they generally are unable to protect themselves or their entrusted interests against an abuse of fiduciary power. … Locke had famously asserted that legislative power is “only a fiduciary power to act for certain ends” and that “there remained still in the people a supreme power to remove or alter the legislators, when they find the legislative act contrary to the trust reposed in them. In other words, popular sovereignty denotes that the state sovereign powers belong to the people, and so those powers are held in trust by the rulers on condition that they be used for the people’s benefit. Popular sovereignty thus implies that the state and its institutions are fiduciaries of the people, for their justification rests exclusively on the authority they enjoy the governance of the people. … [It] is an entity’s assumption of state powers, not de jure statehood per se, that triggers the fiduciary principle. Any entity that assumes unilateral administrator power over individuals bears a fiduciary obligation to honour the basic demands of dignity, including the peremptory norms of international jus cogens. … [Implicit] within the state’s obligation to secure legal order is another independently sufficient condition for the identification of peremptory norms: the rule of law. … Public corruption offends the state subject fiduciary relation irrespective of whether the corrupt acts are large or small in scope: a low-level public official who … Accepts a petty bride violates the peremptory norm against corruption, just as a head of state violates jus cogens by draining the state treasury for private gain. The prohibition against corruption thus illustrates the important principle that the scope of jus cogens is not limited exclusively to acts such as military aggression. … Violations of peremptory norms .. are necessarily wrongful and legally impermissible on any scale. …

Legal scholars have traced the fiduciary concept as far back as the Code of Hammurabi in ancient Mesopotamia … and have shown that concepts of fiduciary obligation informs not only Roman law … But also Islamic law. … Indeed, the modern Anglo-American law of trust owes a considerable debt to the waqf from Islamic law – an endowment created by a donor for use by designated beneficiaries and under the administration of the trustee – which was introduced to England by Franciscan friars returning from the Crusades in the 13th century.’ (Criddle, Evan J. & Evan Fox-Decent A Fiduciary Theory of Jus Cogens, The Yale Journal of International Law (2009) Vol 34: 331-387).

States can respond to breaches of obligations ‘erga omnes’ by instituting proceedings in the ICJ. Where under International Law a crime, e.g. genocide is a ‘jus cogens’ violation, there can be no legal justification whatsoever. So, at trial, (i) ‘erga omnes’ – which on the factual matrix may arise out of a breach of ‘fiduciary duty’; and (ii) ‘jus cogens’, are powerful arguments in discharging the burden proof, because if the other threshold issues including ‘actus reus’ and ‘intent’ are proven, there is no defence.

The title of my next book, which I will start to research and write in 2025 is, ‘Conflict & Mediation.’