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International Law

IT law – a challenge of dispute resolution

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IT law or cyber law or internet law, is evolving in giant steps. On its way, it has many challenges to meet and a lot of burdens to cope with. Being a part of international law, it is though specific in its nature, mode of implementation and protection. While the classic international law deals with classic state territories, state jurisdictions, with a clear distinction between national laws, the IT law is uncertain about the state jurisdiction, earthbound borders, rules and proceedings regarding any dispute arising on internet.

However, with a fast development of information technology, the number of legal contracts and businesses on internet rises, requiring the fast response by legal order in terms of regulating and protecting it.

From the time internet emerged, each entity operating on internet provided for its own rules. With the IT becoming more complex and demanding so were the rules. We therefore say that internet is self-regulated, with no visible interference by state, apart from criminal activities control.

Some authors even call the internet private legal order where stateless justice apply. Justice usually needs a state, which is a supreme authority, having the monopoly of violence, or the legitimate use of physical force. But speaking in internet terms, self-regulation has evolved, with the state interferece being mainly excluded.

The form of entering into online contracts gets simplified, mainly requiring just a mouse click by ‘I agree’ or ‘I accept’. The quantity of such legal interactions increases. It is often simpler and more convenient to purchase goods via internet, e-commerce blumishes. Parallely to Single Market, the European Commission, the Junker’s Commission, has started to boost a Digital Single Market in 2015, which would provide growth of digital economy. It’s aim is to provide the EU citizens equal online access to goods and services, making a parallel world to a conventional or a non-digital one. The Commission has just, on 25 May 2016, presented a package of measures in that regard with the objectives of advancing EU data protection rules, reform of telecoms rules, copyright, simplyfying consumer rules for online purchases, providing the same online content and services regardless of EU country, etc.

However, what happens if a dispute arises from an online legal interaction. Which court is in charge? In which state? Under what fees?

The law has always provided for a procedural protection of obligations entered into by various types of contracts. The usual protection belongs to courts. Court proceedings may sometimes be time-consuming, barry expensive fees, and are usually non-voluntary for at least one party to the proceedings. That usually brings the use of multi-level proceedings, recourse to remedies and ends in compulsory enforcement proceedings.

With the development of trade, especially of trade which crossed the state borders, there emerged a system of solving disputes before a non-judicial bodies, arbitration. Arbitration became a convenient way of solving disputes arising from contracts that involve a cross border element. The very important segment, which was not present in conventional court proceedings, is voluntarity of parties which agree even prior to any dispute that might arise, about an arbitration body which would be in charge, in case a dispute happens. The arbitration become institutionalised, like the Paris ICC Arbitration, New York International Arbitration Center, etc.. However, many forms remain non-institutionalised, which include impartial experts in the area of dispute, who with the help of parties, and implementing various forms of mediation and arbitration, aim to resolve the issue. This way of settling cases became very well accepted, as the parties voluntarily agree to arbitration rules and therefore enforcement of any such decision becomes more acceptable to parties and usually deprived of a compulsory element. So not many arbitration awards face compulsory enforcement by courts, which is otherwise provided by the New York Convention .

However, with the emergence of online trade, there also came a question of solving any such dispute that might arise from online trade, whether the subject of such trade are goods or services. It is more natural for parties who enter into their contract online, to solve the dispute online.

In February 2016 the European Commission has launched an Online Dispute Resolution Platform (ODR) in order to provide for the structured and institutionalized recourse to resolving legal disputes arising on internet. It is designed to bring together the alternative dispute resolution (ADR) entities by member states, which fulfill certain quality conditions, provided in the Directive on consumer ADR.

The European Parliament and the Council of the EU have adopted two key documents in respect of online dispute resolution (2013), i.e. the Directive on alternative dispute resolution for consumer disputes and Regulation on online dispute resolution for consumer disputes.

The parties to the proceedings are a consumer, being a natural person, acting for purposes which are outside his trade, business, craft or profession, and resident in the Union, and a trader, a natural or legal person, privately or publicly owned acting for purposes relating to his trade, business, craft or profession.

The fees of the proceedings are supposed to be minimal or none. The length of proceedings should not exceed 90 days. Comparing to court proceedings, which are often lengthy and costly, this makes a good alternative.

Each trader is obliged to make visible the link to ODR platform, informing and enabling thus the consumers to initiate the proceedings in case of dispute.

The online dispute proceedings are to be led by key principles that ADR must fulfil including expertise, independence and impartiality, transparency including listing of ADR entities, natural persons in charge of ADR, the average length of ADR procedure, the legal effect of the outcome of ADR procedure including penalties for non-compliance, the enforceability of the ADR decision, if relevant. ADR proceedings must be effective, available and accessible with duration of up to 90 days except in highly complex disputes.

But the question which arises after every dispute is solved, is the enforcement of its outcome.

While the EU has just recently put forward the ODR platform, creating common principles of procedure for alternative dispute resolution entities joining the platform, there are already some good examples of self-regulated dispute resolution bodies. Some of the most succesful models include Pay Pal, CyberSettle, and Domain dispute resolution-UDRP.

CyberSettle, the world’s first online claim settlement company which was launched in late 90’s and pattented in 2001, invented the ‘double-blind bid’ dispute resolution process, which includes two parties each making three offers and three demands in dispute resolution, in separate ‘blind’ submissions. The CyberSettle automatically choses the closest middle solution. PayPal profiled a system of chargeback, upon the complaint by the customer to his credit card issuer, in case, for example, of not receiving the ordered goods. PayPal holds the funds until the issue is resolved. UDRP (Uniform Domain-Name Resolution Policy) was designed to protect Trademarks from registering the same or similar domain names by non-owners of Trademarks, or cybersquatting.

The common ingredient of these success stories is that the above ODR bodies themselfes provided for an efficient system of enforcement, i.e. the self-enforcement. The self-enforcement is considered to be the simplest and best way of enforcing a decision arising from an online dispute. Self-enforcement is possible with the support of technology.

Another good incentive for enforcement is a trust the trader enjoys in the digital market. The impairment of the trust in the trader, would automatically scale down his position in the digital market. If a trader holds a Trustmark, as a guarantee of his quality, losing it for not complying with an online dispute resolution decision, would put him in a disadvantaged position, and would certainly make him obey the decision.

Moreover, disclosure of list of traders not complying with ADR/ODR decision might be detrimental to their reputation, which speaking of online traders, plays very important role in geting trust from the consumers in digital market. Furthermore, social networking on internet enable the information to spread fast, which as a result may lead to a drop of trader rating.

The trust is, speaking of online business, of utmost importance. Digital market is more sensitive and depending upon acceptance by the public then regular market. It responds quicker and any flaw is easily transmitted via internet. It lacks the physical assesment and therefore it is more reliable on written information. The market rules will certainly define that it is better for a trader to comply with the ODR decision, then to get an unfavourable reputation. E-commerce and e-business relies significantly on trust that it has built towards the custommers. A custommer is much more careful when entering an online shopping site then entering a real shopping mall.

It is still early to have a case-law resulting from running of the ODR platform, as it has just been released in February 2016. However the move by the European Commission to bring the self-regulation and self-enforcement under certain unified rules, shall certainly bring results. The platform is currently applicable in EU member states, except for Croatia, Luxemburg, Poland, Romania and Spain. The remaining 23 member states reported to the Commission a wide list of ADR bodies, which may operate under different names, ombudsman, mediator, arbitrator, etc. This is a huge step in moving from the conventional court system, in cases that originated in online interactions. That gives another unified form to the online legal order that has been creating spontaneously and hectically from the time the internet spread as a tool. The European Commission, representing the key governing functions of the EU, made a move towards bringing online system of running businses, especially B2C, more secure and more convenient for the consumers.

The enforcement of ADR decision should therefore not be uncertainty of online dispute resolution proceedings. In that regard, it should be stressed that a milestone judgment of the European Court of Human Rights, Hornsby v. Greece (1997), provided that it would be ‘illusory of a Contracting State’s domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party’. Accordingly, all procedural guarantees would be purposeless without protecting for the implementation of the result of the proceedings.

Although the ODR proceedings are not judicial proceedings, often being left without state control, ammounting thus to stateless justice as referred to above, it would be unimaginable that the decision ending the online dispute resolution, remains with no effect in praxis. It would make the whole concept of online dispute resolution useless and deprived of its advantages, such as availability, fast resolution, small or no fees, and would eventually bring parties to the court, with all the shorcomings when online disputes are at stake, such as long proceedings, high fees, time-consuming, duty of appearing of parties in person, but with a certain enforcement. Accordingly, in order for the online dispute resolution to endure and evolve, as a breakthrough in IT law, the enforcement of its outcome, must not be compromised.

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International Law

Undemocratic United Nations and Global Peace

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War is not the solution to any problem rather war is a problem itself. Many countries believe in diplomacy and peaceful means of problem-solving and conflict resolution. But, unfortunately, many nations still seek solutions of problems and continuity of politics in wars.

If we look at any newspaper, we find too many armed conflicts going on around the globe. To name a few would include a catastrophic war between Russian Federation and Ukraine which has caused tens of thousands of casualties, with millions displaced. Decades-long civil wars and subsequent US-led NATO intervention and withdrawal has brought Afghanistan to the brink of famine and hunger. The whole Middle Eastern region is unstable and striving with civil wars for long. The Arab -Israel conflict and Kashmir Dispute have been there for more than seven decades.

Above-mentioned and many others examples of armed conflicts prove that there is no durable peace in the world. Here one thing that needs to be noted is that conflict is always inevitable among individuals, societies and nations, because the interests of individuals, societies and nations do not always converge. When there is divergence of interests, conflict arises.

What is needed to be done is the resolution of these conflicts. There are two ways to resolve conflicts: one is violent way (use of force) and the other is peaceful way (diplomacy and negotiations). More than seven decades ago, after World War 2, nations realized that war is not solution to any problem and they established United Nations Organization (UNO). Primary objective of UN was and is the maintenance of peace and security in the world.

But, if we look at history, it seems the UN has failed to achieve international peace and security. UN may have had role in preventing the outbreak of another world war, but it could not stop a series of conflicts from Korea, Vietnam to Afghanistan (during Cold War), and from Africa, Middle East to ongoing Russian-Ukraine conflict.

This is a question mark on the credibility of UN, that why the UN despite being guardian of international peace and security cannot stop wars.

UN has six principal organs and many Specialized Agencies and Funds for different tasks.  Among them Security Council is the most powerful Organ and is mandated with enforcing international peace and security. UNSC uses two tools to enforce its decisions, one is applications of sanctions and the other is use of force (intervention).

However the concentration of power in the hands of five permanent states of Security Council, namely the United States, United Kingdom, France, China and Russia have been problematic. These five countries use veto power whenever they perceive any resolution to be against their national interest or against the interests of their allies. Throughout the Cold War, US and USSR had paralyzed UN by vetoing resolutions. Same happened with any other conflict including when US drafted a resolution to stop the war in Ukraine.

So, it is crystal clear that if UN (specifically Security Council) is not reformed, UN can not achieve its primary goal i.e. maintenance of peace and security. UN members and experts have talked about reform in Security Council. Experts have also given suggestions and proposals to make UN more democratic and representative. One of those proposals is abandoning veto and doubling the size of SC members. This can make UN more democratic and representative to some extent. But this is not an easy job. Firstly, because P5 are reluctant to abandon this privileged position (veto power). Secondly, countries hoping for permanent membership are opposed by other countries. For example, many European countries object Germany’s membership. Pakistan objects to India’s membership.

 Experts believe the solutions could be the democratization of UN system (particularly UNSC). This is done by involving General Assembly in the decision making regarding international peace and security. General Assembly is a symbol of democracy, representing almost all the states on the globe. Simple or two-third majority must be mandatory to make any decision regarding international peace and security. This could stop any powerful state to use UN as a tool for its own vested national interest , and the decision of majority will prevail. All the states, big and small, powerful and weak will have equal say in the UN. Otherwise the possibility of wars, violence, genocide and injustice will further increase.

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International Law

United States thinks it’s ‘the exception to the rules of war’

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The architects of those Nuremberg trials—representatives of the United States, the Soviet Union, the United Kingdom and France fully expected that the new United Nations would establish a permanent court where war criminals who couldn’t be tried in their home countries might be brought to justice. In the end, it took more than half a century to establish the International Criminal Court (ICC). Only in 1998 did 60 nations adopt the ICC’s founding document, the Rome Statute. Today, 123 countries have signed.

Guess what superpower has never signed the ICC? Here are a few hints? – writes Rebecca Gordon in an article at “The Nation”:

Its 2021 military budget dwarfed that of the next nine countries combined and was 1.5 times the size of what the world’s other 144 countries with such budgets spent on defense that year.

Its president has just signed a $1.7 trillion spending bill for 2023, more than half of which is devoted to “defense” (and that, in turn, is only part of that country’s full national security budget).

It operates roughly 750 publicly acknowledged military bases in at least 80 countries.

In 2003, it began an aggressive, unprovoked (and disastrous) war by invading a country 6,900 miles away.

Yes! The United States is that Great Exception to the rules of war.

While, in 2000, during the waning days of his presidency, Bill Clinton did sign the Rome Statute, the Senate never ratified it. Then, in 2002, as the Bush administration was ramping up its Global War on Terror, including its disastrous occupation of Afghanistan and an illegal CIA global torture program, the United States simply withdrew its signature entirely. Secretary of Defense Donald Rumsfeld (photo) then explained why this way:

“The ICC provisions claim the authority to detain and try American citizens — U.S. soldiers, sailors, airmen and Marines, as well as current and future officials — even though the United States has not given its consent to be bound by the treaty. When the ICC treaty enters into force, U.S. citizens will be exposed to the risk of prosecution by a court that is unaccountable to the American people, and that has no obligation to respect the Constitutional rights of our citizens.”

The assumption built into Rumsfeld’s explanation was that there was something special — even exceptional — about US citizens. Unlike the rest of the world, we have “Constitutional rights,” which apparently include the right to commit war crimes with impunity.

Even if a citizen is convicted of such a crime in a US court, he or she has a good chance of receiving a presidential pardon. And were such a person to turn out to be one of the “current and future officials” Rumsfeld mentioned, his or her chance of being hauled into court would be about the same as mine of someday being appointed secretary of defense.

The United States is not a member of the ICC, but, as it happens, Afghanistan is. In 2018, the court’s chief prosecutor, Fatou Bensouda, formally requested that a case be opened for war crimes committed in that country. ‘The New York Times’ reported that Bensouda’s “inquiry would mostly focus on large-scale crimes against civilians attributed to the Taliban and Afghan government forces.” However, it would also examine “alleged C.I.A. and American military abuse in detention centers in Afghanistan in 2003 and 2004, and at sites in Poland, Lithuania, and Romania, putting the court directly at odds with the United States.”

Bensouda planned an evidence-gathering trip to the United States, but in April 2019, the Trump administration revoked her visa, preventing her from interviewing any witnesses here. It then followed up with financial sanctions on Bensouda and another ICC prosecutor, Phakiso Mochochoko.

So where do those potential Afghan cases stand today? A new prosecutor, Karim Khan, took over as 2021 ended. He announced that the investigation would indeed go forward, but that acts of the United States and allies like the United Kingdom would not be examined. He would instead focus on actions of the Taliban and the Afghan offshoot of the Islamic State.

When it comes to potential war crimes, the United States remains the Great Exception. Wouldn’t it be wonderful if we were just a little less exceptional?

If, for instance, in this new year, we were to transfer some of those hundreds of billions of dollars Congress and the Biden administration have just committed to enriching corporate weapons makers, while propping up an ultimately unsustainable military apparatus, to the actual needs of Americans?

Wouldn’t it be wonderful if just a little of that money were put into a new child tax credit? – asks Rebecca Gordon.

International Affairs

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International Law

Selective Standards: Fight Against Oppression or Just a Geopolitical Showdown for Global Supremacy?

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The karma of destiny is perhaps the most patent representation of natural balance one could witness in a lifetime. The global divide between democracy and autocracy has been a mainstay of western diplomacy since the days of the Cold War. ‘Rule-based International Order’ has been the de facto foreign policy of subsequent western administrations – the United States, in particular. One would assume that the virtue of such an altruistic agenda would extend universally regardless of caste, creed, and ethnicity. But unfortunately, while nature could prove occasionally unfair, each successive American regime sets new records of cant and hypocrisy, as if trying to remind us of its duplicitous existence and deviant machinations.

The war in Ukraine was the grotesque highlight of the year 2022. But what notably garnered considerable spotlight was the western unity against Russian maneuvers. Placing crippling sanctions on the Kremlin – done. Cutting energy imports from Russia – mission accomplished. Military and humanitarian aid to Ukraine – $65 billion have already been appropriated to Kyiv, while an additional $47 billion got approved in a $1.7 trillion government funding bill signed by President Biden. What else? Oh, yes! Sanctions on Iran for supplying military drones to Russia, allegedly used in surveillance and targeted attacks on Ukrainian energy infrastructure. Russia got ejected from the United Nations Human Rights Council (UNHRC), ridiculed in the UN General Assembly (UNGA), and suspended from the Group of Eight (G8) in 2014 for annexing Crimea. All in the name of, and I quote the US Secretary of State Antony Blinken, “defense of the UN Charter and in resolute opposition to Russia’s devastating war of aggression against Ukraine and its people.” Well, is the defense of the UN Charter absolute or subject to the selective judgment of the United States? Is all aggression against any innocent civilians culpable, or just Russian predation against innocent denizens of Ukraine? The answer was pretty evident on (ironically) the last day of the year that would remain earmarked in history as the year of the notorious Russian invasion of Ukraine.

The UNGA voted on a resolution calling on the International Court of Justice (ICJ) to opine on the legal consequences of Israel’s illegal occupation of Palestinian territories. Today, Israel colonizes swathes of Palestinian land beyond the borders established under the 1947 UN Partition Plan (contentious in itself to begin with). Since the 1967 Arab-Israeli War, this illegal occupation also includes Gaza, East Jerusalem, and the West Bank. The resolution passed 87 to 26 with 53 abstentions. Unsurprisingly, the typical states opposing the resolution were the United States and Britain – the flag-bearers of justice in the Russian war in Ukraine. The same standard-bearers of international law that applauded Ukrainian President Volodymyr Zelenskyy for dragging Russia to the ICJ before Russian forces even fully penetrated the Ukrainian borders. It is another rueful example of a shameless display of hypocrisy on the geopolitical canvas. And it would’ve been tragicomical had it not been par for the course – a historical cliche!

Last month, two US lawmakers: namely House Reps. Steve Cohen and Joe Wilson, introduced a bipartisan congressional resolution calling on President Biden to boot Russia from the United Nations Security Council (UNSC) for its “flagrant violations” of the UN Charter, including its illegal naturalization of four Ukrainian oblasts and committing atrocities against civilians in Ukraine. While the expulsion proceedings of a permanent member of the UNSC are both obscure and (frankly) unrealistic without Russian consent, this scenario is spectacularly ironic.

In November 1967, the members of the UNSC voted unanimously for Resolution 242: calling out Israel to withdraw from the annexed territories seized in the Six-Day War. Yet 55 years later, Israel not only continues to violate the resolution, it also proceeds to expand settlements on expropriated Palestinian land with impunity. In the last five decades, the Israeli regime has demolished over 28,000 Palestinian homes in the occupied territory; spawned more than 200 settlements and outposts. And between 600,000 and 750,000 Jewish settlers have been transferred to the West Bank and East Jerusalem. The violence against Palestinians has never ceased.

According to the data from the UN Office of the High Commissioner for Human Rights (OHCHR), a total of 424 children have been killed in Ukraine by Russian barbarity. Apartment blocks razed mercilessly; the electricity grid battered to the brink of collapse. The United States has termed it a ’systemic’ assault on humanity, and President Biden even called it a “genocide.” The same department (OHCHR) reported in May 2021 that the Israeli bombardment of the Gaza Strip killed 242 Palestinian children. Was Israel punished for its war crimes? Far from it. President Biden recently congratulated the incoming Israeli Prime Minister Benjamin Netanyahu, the architect of the 11-day war in 2021, on forming the government – terming him as his “friend for decades” while conspicuously ignoring concerns regarding the inclusion of far-right racist politicians in the new cabinet.

The US officials have always maintained a programmed PR narrative of “Israel’s right to defend itself.” From what, children? According to the World Health Organization (WHO), Israeli aggression in Gaza displaced more than 74,000 Palestinians, including 7,000 children without a roof, scant food supplies, and virtually no access to medical assistance. The WHO also reported the decimation of 30 health facilities in Gaza due to Israeli airstrikes. Yet, annualized military aid to the tune of $3.8 billion continues to flow to Israel from the United States. What more to explain other than the absolute mockery of international law; the farce of diplomacy of human rights and equitable justice at the behest of the apparently puritanical United States of America.

History is riddled with numerous examples of American duplicity. The American acquiescence to the Israeli invasion of Lebanon in 1982, which eventually galvanized the Shiite Islamist group Hezbollah. The United States vetoed the UNSC resolution – one of its 53 vetoes time and again used to shield Israel from global denunciation – calling for Israel’s immediate withdrawal from southern Lebanon. An estimated 49,600 Palestinian and Lebanese civilians died during the occupation. And then there are glaring examples of American interventions. Its outright support to the Afghan Mujahideen against the Soviet Union and the subsequent provenance of the Taliban regime in Afghanistan. How can one forget the devastating invasion of Iraq on the utterly bogus canard of Saddam Hussein wielding Weapons of Mass Destruction (WMD). Between 2003 and 2006, the US-led assault resulted in over 655,000 Iraqi civilian casualties, primarily due to the indiscriminate aerial bombardment by the US forces on Iraqi towns and cities. And the civil vacuum engendered in wake of the Iraq War served as a breeding ground for radical offshoots of Al-Qaeda – later accreting under the banner of the Islamic State (IS). How can a country such as America still enjoy a moral high ground when its historical scroll stands emblazoned with unilateral aggression, illegal intervention, and unabashed prevention of justice against its genocidal allies?

The war in Ukraine is a blood-strewn conflict but a rendition of complex realpolitik import and balance of regional power dynamics. Opposing Russian cruelty should not implicitly spell out support for American rhetoric. One could still stand with Ukrainians while denouncing its backers in the name of universal covenants of justice. All humans are entitled to the right to life, security, freedom, and dignity. These fundamental rights should not waver based on alliances – political, ideological, ethnic, or otherwise.

While the passage of this UNGA resolution is a promising sign of growing global consciousness, it won’t yield any significant, policy-altering outcomes. In 2004, the ICJ weighed on the issue of Israeli occupation and ruled that the wall in the occupied West Bank and Jerusalem was illegal. In response, Israel termed The Hague ‘politically motivated’ and rejected the ruling. Similarly, the Permanent Representative of Israel to the United Nations Gilad Erdan, speaking ahead of the vote, characterized this resolution as “a moral stain on the UN,” further arguing that “no international body can decide that the Jewish people are occupiers of their own homeland.” Russia makes an eerily similar argument about Ukraine; Russian President Vladimir Putin aspires to ‘Reunify the Soviet Motherland.’ Even China’s President Xi Jinping posits a parallel assertion regarding the ‘reunification’ of Taiwan with the Chinese motherland. The resemblance is uncanny. But while the US continues to support Ukraine to wrestle back lost territory from Russian troops; continues to arm Taiwan to defend against a potential amphibious invasion from China, plans are effectively underway to move the US embassy to Jerusalem – a tacit nod to Donald Trump’s aberrant recognition of Jerusalem as Israel’s capital – despite the city’s disputed status under the international law. I reckon the words of Ms. Tirana Hassan, the acting executive director at Human Rights Watch (HRW), in her introductory essay in the HRW World Report 2023 aptly bewail these double standards: “[In] a world in which power has shifted, it is no longer possible to rely on a small group of mostly Global North governments to defend human rights.

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