Global Customary International Law Index: An Analytical Monograph

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Global Customary International Law Index: An Analytical Monograph Abhivardhan President, Global Law Assembly

& Bhavana J Sekhar Principal Researcher, AbhiGlobal Legal Research & Media LLP

© AbhiGlobal Legal Research & Media LLP


Global Customary International Law Index

Year: 2021 Date of Publication: June 17, 2021 ISBN (online): 978-81-947926-3-5; (paperback): 9798520436522 Authors: Abhivardhan, Bhavana J Sekhar. All rights reserved. No part of this publication may be reproduced, distributed, or transmitted in any form or by any means, including photocopying, recording, or other electronic or mechanical methods, without the prior written permission of the publisher and the authors of the respective manuscripts published as papers, except in the case of brief quotations embodied in critical reviews and certain other noncommercial uses permitted by copyright law. For permission requests, write to the publisher, addressed “Attention: Permissions Coordinator,” at the address below. Printed and distributed online by AbhiGlobal Legal Research & Media LLP in the Republic of India. First edition, Global Customary International Law Index: An Analytical Monograph. Price (Online): 150 INR Price (Paperback): 12 USD (Amazon.com) AbhiGlobal Legal Research & Media LLP, 8/12, Loyal Road, Mayo Hall, Allahabad, Uttar Pradesh, India – 211001 The publishing rights of the papers published in the book are reserved with the respective authors and the publisher of the book. For the purpose of citation, please follow the format for the list of references as follows: 2021. Global Customary International Law Index: An Analytical Monograph, Allahabad: AbhiGlobal Legal Research & Media 2021. You can also cite the book through citethisforme.com (recommended). For Online Correspondence purposes, please mail us at: global@internationalism.co.in For Physical Correspondence purposes, please send us letters at: 8/12, Patrika Marg, Civil Lines, Allahabad, Uttar Pradesh, India - 211001

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Preface This analytical monograph is a technical work on the concept of customary international law. We have covered the concept of a Global Customary International Law Index. Traditionally, customary international law is a field in which how states behave and make decisions, the old traditional way is not left unaccounted. In the era of globalization (fourth stage), the purpose of CIL is declining or saturating. It does not anyways mean the end of customary international law – because the transformation of the rules-based international order clearly suggests that there is ample scope for assessing the way international law is widely accepted and put into judicious use by the international community and the ‘subjects’ of international law. This monograph is divided into 9 chapters with a list of references. We have even included an emerging concept in public and private international law, entitled as Soft Law, and have dedicated a special chapter to it. In the end, I am elated to express my gratitude to Bhavana for her amazing efforts in the technical work as a co-author for the book. I also express my gratitude towards Manohar Samal, Kartikey Misra and Akash Manwani for their motivational support towards the process behind the monograph and those insightful discussions with them. This work is a part of the series of Global Customary International Law Index, a research initiative by Global Law Assembly, the member-organization of AbhiGlobal Legal Research & Media LLP.

Abhivardhan

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Table of Contents 1 Introduction and the Basics 6 2 Historical Relationship Between the Evolution Cycles of CIL and Treaty Law 9 2.1 Treaty as Mere Declaration of Pre-Existing Customary Rule 10 2.2 Assimilation of Treaties Formed into the Transformation of CIL 12 2.3 The Improvement of CIL Norms in Line with Progressing Conditions 13 3 Legal Pluralism and the Transformation of Jus Cogens in CIL 16 3.1 The Primacy of Norms in Case Conflict of Norms is in Place 17 4 Traditional Sovereignty in Customary International Law 20 4.1 Sovereign Equality Not to be Undermined 22 4.2 Degree of Influence of Sovereign Equality in Various International Organizations and the Subject-Matter of the Attributed International Organization(s) 25 Japan. 27 France. 27 India. 28 4.3 The Contribution of Neoliberalism and Multilateralism in Shaping the Positivist Character of Sovereignty in International Law 29 Increase in the Participation, Role, Representation and Influence of Diversified State and Non-State Actors. 29 The Modernity of the Rules-Based International Order due to Globalization. 32 The Transformation of Natural Morality and Shared Common Responsibility in International Law as Conceptions. 35 4.4 Fictional Sovereignty and the Individualization or Collectivization of Sovereign Equality 37 5 Historical Transformation of Jus Cogens 40 5.1 Sovereign Equality as a Tool of Legal Supremacy 41 5.2 Ambiguities and Anomalies in the Position on Jus Cogens for Countries in the 21st Century 43

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Abhivardhan & Bhavana J Sekhar 6 Historical Transformation of Persistent and Subsequent Objectors in CIL 46 6.1 The Persistent Objectors 47 6.2 The Subsequent Objectors 49 7 How Policy Leadership and Instrumentalism Shapes CIL 53 7.1 Consequentiality in Risk Assessment & Decision-Making: Linear & Cyclic 54 The United Nations Security Framework for the Rules-Based Order. 56 The Biases Within the International Human Rights Approaches. 58 The GDPR and European Union’s Regulatory Sovereignty. 61 7.2 The Aestheticization of State Practices and the Evidentiary Value of ‘Sources’ 62 Scope of the Draft Conclusions. 63 How State Practices are Aestheticized. 65 The Phenomenological Learning of Aesthetics Based on State Practices in Public and General International Law. 66 8 Courts and their Methodologies on Shaping the Course of CIL 68 9 Soft Law and its Relationship with CIL 71 9.1 Degradation of the Qualitative Purpose of Hard Law and the Malfunctioned Adherence of Norms 73 9.2 The Shift from Human Legal Positivism to Non-Human Tools of Regularization 75 9.3 Self-Regulation by Private Actors 76 9.4 Cultural Intelligence and Soft Law 78 10 Conclusions and Recommendations 79 References 82

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1 Introduction and the Basics

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Customary International law has been an indispensable portion of international law and is possibly the oldest source of law that generates a normative structure that evolves consequently with the societies, states, economies. It is uncodified and an unwritten source. It has an exponential relationship with treaties. Treaties amplify the usage and recognition of customary law by codifying them. A rule of customary law to be identified as a customary law should depict two elements- a consistency in the state practice and the opinio juris which would mean that states recognise it as a customary norm as a legal obligation and. As the International Court of Justice has explained it, the concerned acts should not only be a practice, but the evidence should also support the fact that this practice is given the sense of a legal duty in adhering to this state practice. The various facets of customary international law and its relationship with the conventional Treaties and various sources of international law will be explained in further detail through this analytical monograph. The purposes of the monograph are enumerated as follows: • The book is an effort to develop a Global-level Customary International Law Index (hereinafter Global CIL Index), a metric based on the designing of the external and internal parameters which influence customary international law in different international law domains. This book is the first analytical work under the objective to create the metric and by all means, is a schematic work, to generalize the legal and policy problems associated with the transformation, growth and impact of & on customary international law as a source of international law; • The book assesses the structure of customary international law on the basis of its historical relationship with treaty law, its contributive responsibility to shape jus cogens and the objectors, persistent and subsequent, and thus applies a doctrinal approach to deal with the legal and policy issues of customary international law in the realm of pure international law;

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• The book is also a special effort to assess the policy basis behind the development of customary international law and therefore, includes more policy-centric analyses throughout; The analytical monograph is therefore divided into following chapters: 1. Historical Relationship Between the Evolution Cycles of CIL and Treaty Law 2. Legal Pluralism and the Transformation of Jus Cogens in CIL 3. Traditional Sovereignty in Customary International Law 4. Historical Transformation of Jus Cogens 5. Historical Transformation of Persistent and Subsequent Objectors in CIL 6. How Policy Leadership and Instrumentalism Shapes CIL 7. Courts and their Methodologies on Shaping the Course of CIL 8. Soft Law and its Relationship with CIL Conclusions and Recommendations have been provided at the end of the book.

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2 Historical Relationship Between the Evolution Cycles of CIL and Treaty Law

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The interaction between CIL and treaties is significant in understanding the source and the influence they exert upon each other and how their combined effect impacts and contributes to the development of international law. Even though they exist independently, they can often be intertwined. The interplay can be explained in three ways. 2.1

Treaty as Mere Declaration of Pre-Existing Customary Rule

First is the Treaty could act as a mere declaration of pre-existing customary rule. There should also be a distinction between the treaties which create rules that are accepted as custom and the treaty that codifies and elaborates upon the existing custom and codifies an evolving customary law. For instance, codifications through treaties can assist in preventing the retarding development of a customary norm by making a reference to an existing customary law. Most arbitral tribunals in deciding investment disputes under BITs and the regional free trade agreement have applied the minimum standard of treatment as the level of treatment that should be provided to foreign investors. The Arbitral tribunals have also reiterated that this standard or principles of the customary norm is evolving and should be applied in accordance to content of the customary norm present at the time of the dispute (UNCITRAL Arbitration Tribunal, 2007 pp. 95, para. 302). The NAFTA Tribunal (NAFTA Arbitration Tribunal, 2000 pp. 1, para. 118) found that the customary norm of the standards for protection of investors had evolved and includes the fair and equitable treatment according to NAFTA Article 1105. Another example within the formulation of customary norm that was codified into a convention was in the field of international humanitarian law relating to torture. Torture is a practice that is universally frowned upon, and no country publicly supports it, and even though real practice of the countries could depict an opposing reality. The prohibition against torture is classified as a jus cogens norm and is treated as a norm that can supplant all the other norms. Following due to fatal consequences that ensued {10}


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during and after the Second World War, the UN General Assembly (UN General Assembly, 1975) decided to include this norm within Article 5 of UDHR which states that no one should be a subject to torture and inhumane activities. It is also reproduced within Article 7 of the ICCPR (International Convention on the Civil and Political Rights) ratified by 153 countries. Further the Convention Against Torture (CAT) took force in the year 1987 and prohibits various forms and methods of inflicting Torture. CAT further mandates states to take any judicial and administrative actions to restrict the acts of Torture and unlawful treatment within the state’s territory and jurisdiction. In the area of international environmental law, while describing the procedural obligations of the state in preventing extensive transnational environmental harm such as the duty in analyzing any probable environmental harm from the other state. The principle of utilization of shared resources was raised in the case of River Oder (Permanent Court of International Justice, 1929). Principle of equitable utilization of shared resources is the interest of the state in the form of a common legal right of all the riparian states towards the equitable and reasonable share for the beneficial usage of the water in an international basin. This significant principle of customary law was stated in Article 4 of Helsinki Rules which states that each state basin has the right to reasonable and beneficial usage of waters. This is further reinstated in Article 5 of the 1997 Convention on the Law of NonNavigational Use of Water, 1997. Other rules which garnered significant attention are the duty of due diligence and the duty to not impose harm on the other states. In addition, the principle of good neighborliness mandates all the riparian states or waterbound states to take caution and adequate measures in preventing a serious harm to the other watercourse states that makes a notable mention in the preamble to the Convention of Non-Navigational use of Water, 1997 and was also used in deciding the Corfu Channel case (International Court of Justice, 1949 p. 1).

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2.2

Assimilation of Treaties Formed into the Transformation of CIL

Whereas sometimes the formation of treaties assimilates and formulate the rules of customary international law. An instance of this would be Article 2(6) of the UN charter which provides for retaining international peace and security that undoubtedly stands as a principle of Customary International principle and can be binding on states even if they have not consented to the treaty. In a statement dated 31st January 2002, the Security Council by restating its fundamental responsibility in maintaining international peace and security and thereby the threat caused to it by the terrorist activities, was requested by the member-states in pursuance of the resolution for countering terrorism and building a dialogue with the international, regional and organisations within the UNSC Resolution (United Nations, 2013 pp. 1019-1080). The mechanism used here is the evolution of the treaty to codify an antecedent principle of customary law. The observation made in the ICJ’s decision on the UNCLOS has formulated the emerging rules of customary law (International Court of Justice, 1969 pp. 1, para. 65). The historical overview and geopolitics behind the law of seas was debated for a long period since they were used for wars, commerce, and economics. Preexisting customs such as the right to innocent passage which is the right of all ships to sail freely through the territorial waters without intervening the internal waters causing disturbance to the peace and security of the coastal state was earlier a customary norm and was an accepted state principle. The English common law regarded that it was a right to freely navigate within the boundaries for both the citizens and aliens (House of Lords, 1870). The United States took a similar approach and denoted the rule of innocent passage in the case of Foreman v Free Fishers of Whitestable in the year 1886. In 1958 Geneva Conference (United Nations, 1958), the principle of innocent passage was adopted as a customary rule which was codified and conceived as a rule under Chapter III of UNCLOS. This was verified through the years of state practice and its widespread application in many states bound by coastal areas. Apart from this, the UNCLOS also {12}


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derives its principles of from other customs. Sometimes, the formation of treaties assimilates and formulates the rules of customary international law. An example of this would be Article 1 of the Genocide Convention, 1949, which states that the contracting parties will treat genocide as a crime for which they shall strive to punish and prevent. Genocide as a legal concept has reached the status of peremptory norms under customary international law that contains a universal character which cannot be deviated from (International Court of Justice, 1951 pp. 15, 51). Even though the state practice was limited only to seeking negotiations of the Nuremberg Charter, the ICJ and European Court of Human Rights were quick to discern that it had reached the status of customary law1. Additionally, the nonexhaustive list of ILC reports dealing with jus cogens norms has mentioned prohibition of genocide as a peremptory norm (International Law Commission, 2019 pp. 147, 151). In this method, the treaties crystallize the amorphous content in the customary law and the emerging principles and declare them as treaties through repeated negotiations and ratifications. 2.3

The Improvement of CIL Norms in Line with Progressing Conditions

At times, there is a requirement for progressively improving and broadening the customary law to retain the momentum with the increasing contributions in the field of science and technology. A classic example of this would be the rapid advancement in technology relating to air travel and rocket technology in the 1960s by both United States and the Soviet Union that led to the inception of a new standard of rules that governs the usage of outer space through the Declaration on the Outer Space approved by the UN General Assembly in 1963 (Scharf, 2013 pp. 107-122). This declaration proposed an authoritative principle of customary international law due to rapid developments in the 1

Each state has a responsibility to prevent and punish genocide and has a customary basis of existence (United Nations General Assembly, 2005 pp. 138140).

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field of international space law, despite the fact that rockets were launched by very few countries at the time of codification. In pursuant to this, the treaties fortify the new and emerging principles of customary international law. Another instance which did not garner considerable support in codification is the autonomous usage of weapons. The deepening divide amongst the legal and political opinions on the usage of the autonomous and semi-autonomous weapons which included unmanned, robotic warfare and weapons development have caused quite some concerns raised by different countries which consider them as a threat that could relentlessly put the lives of persons within the hands of a machine being controlled from another country. While some people have regarded that the machines could replace human beings from actually being used in armed conflicts to in a probable time, being used to prevent armed conflicts through these sophisticated technologies, some argue that these machines like general technological advancements have a high probability of being misused without any laws in place to regulate its mechanism and working. The international law debate surrounding this was in the aspect of international humanitarian law rather than the usage of force between states which is as mentioned under Article 2(4) of the UN Charter, which is universally affirmed as a customary norm (International Court of Justice, 1986). The slight change in focus of the autonomous weapons could be regulated by jus ad bellum but there exist considerable challenges in the legality of deploying a weapon because the deploying state can take the defence that the machine was deployed to save people’s lives and not to cause threat. The principle of proportionality within the jus ad bellum requires a careful comprehension of various factors and consequences behind the usage of such autonomous weaponry and systems. This led some widespread interpretational ambiguities that prevented it from being classified and placed within the 2(4) of the UN Charter. The following is concluded in this Section: • Treaties play an important role in crystallizing the new and emerging principles of customary international law. It is {14}


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• •

therefore important to carefully assess the traditional characteristic of treaties of fortifying such CIL principles; Even if there are insufficient erga omnes or opinio juris present, treaties can swiftly and accessibly animate CIL principles and norms; The evolution of treaties should be avoided from being conjoined with CIL in terms of their respective transformation because CIL norms may or may not exist independently of treaty formations as well;

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3 Legal Pluralism and the Transformation of Jus Cogens in CIL

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In the most generic terms, legal pluralism would mean the existence of different legal systems that exist independently and cover the same states or territories. The rules of international law are not present as hierarchical order and the sources of the international law as stated under the Article 38 of the ICJ Statute as treaties, customs, and general principles of law. The fragmentation of the normative structure of international law is very apparent. There is nevertheless an existence of conflict between various rules that are posed in international law. The usual practice international law has always had the presence of some norms more important than others and therefore an inaction or violation of these norms are considered as an international wrong. In the Nuclear Weapons Advisory Opinion (International Court of Justice, 1996 pp. 257, para. 79), it is certain that there is presence of some inviolable principles of international customary law from which no transgression is permissible, and no objections could be raised. 3.1

The Primacy of Norms in Case Conflict of Norms is in Place

When there is conflict of norms in place, the question of what norm should be given importance and how their importance is determined are significant questions that are raised. In order to comprehend such questions, it is important to understand the informal practice of hierarchical position of certain norms namely the erga omnes obligation and the peremptory norms. Article 103 of the UN Charter reads that an obligation under any international agreement and its superiority would take place in case of a conflict. The text of Article 103 states that the all the obligation and commitments under the UN Charter will supersede all the other commitments. Many have argued that the obligations would also include the obligations that arise due to the customary international law. However, this view was omitted when the UN Charter was entered into. This would mean that the principle of superiority of UN Charter would only be in case of other treaties. The possibility of advancements in international law holds that it might be possible for Article 103 to extend to any {17}


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customary law and its conflict with the obligations under UN charter. However, in practice, the Security Council is consistent in that UNSC Resolutions can supersede the conflicting customary law. As the Security Council is conceived by the UN Charter, the overriding effect thereby can be concluded to apply to the charter as well. Thus Article 103 provides that the obligations under the charter will prevail over the customary law obligations of the state (International Law Commission, 2006). The ICJ in the discussion of the Genocide Convention (International Court of Justice, 1993 p. 440) discussed the relationship between Article 103 and the jus cogens norms which state that as jus cogens is a norm that is superior to even the UN Charter. The charter obligations and any other bodies that function due to the Charter cannot be in conflict with the Jus cogens norms. Historically, the jus cogens norms or as it was referred to as before by various lawyers of the eighteenth century who claimed that the existence of some norms from which no derogation is permitted. In effect, the consequence of these norms was dealt with by ICTY. These significant principles that condemn torture has attained the status of a peremptory norm or a norm that enjoys the highest hierarchical status above the conventional treaty law and ordinary principles of customary law. The inherent consequence of the existence of these rules is international treaties, states and domestic laws and even other general customary law must not derogate from these laws and the normative effect of these jus cogens are very high. In the Vienna Convention on the Law of Treaties2, the aforementioned rule was imposed in Article 53 and 64 of the final draft. Article 64 states that if any new peremptory norm in the character of general international law when emerges is in conflict with an existing treaty, the existing treaty would be abrogated. Similarly, Article 53 of VCLT provides that the consequence of a conflict within treaty law and jus cogens norms, in which the former will be rendered inapplicable and void. 2

Please refer to the Vienna Convention on the Law of Treaties, 1969; Articles 51 and 63.

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In this way, the pluralistic framework of international law has emerged that has led to the fragmentation of various normative effects within the rules-based order. The complexity of the modern societies and their political systems can create many discrepancies in the field of international law and jus cogens norms will fundamentally prevail over other treaty obligations and conventions regardless of any controversy caused.

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4 Traditional Sovereignty in Customary International Law

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Sovereignty in the international law literature has special origins. In fact, the concept of traditional sovereignty, which under the current UN-based rules-based system, is described as ‘sovereign equality’ under the Purposes and Principles of the UN Charter, is the current traditional norm under customary international law. In the rules-based international order, especially since 1945, the estimation of sovereignty has been modernized, generalized and centralized towards creating the tools of recognition and denial to recognize. Now, there are certain common features of traditional sovereignty in international law, which countries put into use in general, when any matter comes up. Here is a non-exhaustive list of such features: • Sovereignty is equal, and must not be undermined under international law, whether of any recognized state; • The degree of influence of sovereign equality in international organizations differs from organizations to organizations, coupled with the very fact that the subjectmatter of the particular international organization if taken into consideration, shapes the model of sovereignty for countries across; • Sovereignty, though has origins in the school of positive law, has drastically changed as multilateralism and neoliberalism have shaped international law and notions of diplomacy & engagement; • Sovereignty is also now interpreted geopolitically, sometimes aesthetically and even legally, as a component of the notion of a civilization state or persona ficta by either state actors or international organizations, which simply means that the concept itself with practical resources reflecting the resistive capacity of the legal concept contribute towards ensuring to developing some individual or collective persona of the very same concept; For the purposes of this chapter, the focus generally lies on these aforementioned features, with assessment provided.

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4.1

Sovereign Equality Not to be Undermined

A surgical analysis of the applicability of sovereign equality in international law after the recognition of a state’s sovereignty has usually been a connective issue for international organizations, especially the international tribunals and the multilateral bodies such as the UN Security Council. Article 2(1) of the Charter of the UN establishes a clear basis of the concept of sovereign equality, which means that the capacity of a sovereign country to operate in a decentralized world, where international law applies to a naturally anarchic global order – cannot be undermined. The Island of Palmas Arbitral Award of 1928 also defines sovereignty quite clearly, where sovereignty is connected with the notion of ‘independence’ (United Nations, 2006 p. 838). However, the transformation of the concept of Responsibility to Protect (R2P) has anyhow created a legal and policy space for international organizations and stronger developed countries to intervene and undermine the sovereign equality of countries across the globe (at least in the domain of IHL). Now, the political aspects in consideration with the concept of sovereign equality in international law are now being discussed in a sense by miscarried assumptions that human rights violations are so rampant in certain countries according to their ‘estimates’, which may turn out to be wrong anyways sometimes, that the developed countries (for example, the United States) are empowered to intervene. In addition, the nature of intervention under Responsibility to Protect is not necessarily meant to be only of military nature. Interventions can be cyber, or maybe through economic sanctions or maybe other activities. For example, the intervention of the UN Security Council in Libya in 2011, led by the United States, was, in the name of R2P, unjust and untenable under public international law, due to special reasons (Nuruzzaman, 2014). First, even if countries and their leaders are attempted to be held accountable for their actions under international human rights law, for not improving quality of life or not providing more political rights to the people, the fact that there are {22}


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serious human rights issues, means that a moderate, swift and risk preventing approach must be dealt, which is not motivated by abstract political or ideological interests. Second, there could have been other alternative options for the United States to endorse such actions considering the history of the United States to intervene in the Cold War era, encouraging rebellions and toppling governments for mere political reasons. Actions, which were undertaken in Libya created serious policy and legal voids not just for the scholars but also for the policy makers. Beyond the obvious legal question of maintaining proportionality in action, which countries are expected to comply with in their own circumstances, there is no legal onus or even liability on the countries who authorized such actions and those, who participated in the same process. Also, the repeated misuse of R2P (No Responsibility for the Responsibility to Protect: How Powerful States Abuse the Doctrine, and Why Misuse Will Lead to Disuse, 2014) and its progenitor in international humanitarian law, which is known as humanitarian intervention, shows why accountability is blurred strategically by countries across and how top-down approaches to impose notions, standards or ineffective sanctions, further degrades the reliability of the global order (Nossal, 2013 pp. 110-119). Now, in the context of customary international law, sovereign equality is very much a clear legal concept. However, since there exist such artificially created or naturally occurring policy voids, and doable cum peaceful means to undergo R2P are not usually undergone or even exhausted, legally (ICISS, 2001), which may not give better legal options to even develop and could be accepted as customary international law. Thus, in the domain of humanitarian intervention and R2P, customary international law must ripen and mature with time. However, the same is only possible when the experiential quotient behind the realization cum acceptance of such CIL norm is diversified. Thus, in the domain of IHL, sovereign equality needs to be protected and institutionalized. {23}


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There is another possibility of context in the field of customary international law, which is emerging since the 2000s. The focus on improving human quality & even equality is a global issue. The same has been reiterated indirectly by two important moments – when the Sustainable Development Goals were adopted in 2016 and their predecessor, the Millennium Development Goals were adopted in 2000. In line with that, for example, in the domain of international environmental law, sovereign equality is also established through the General Assembly resolution 1803 (XVII) of 14 December 1962 (United Nations General Assembly) – wherein the permanent sovereignty of natural resources was affirmed at first. Even the International Court of Justice in Nicaragua (International Court of Justice, 1986 p. 212) affirmed that the respect of State Sovereignty is attributably connected to the prohibition of use of force and non-intervention. In international cyber law, experts believe that a state is free to enjoy sovereignty over its internal cyber infrastructure, whether it is a private-led one or a public-led one, thereby giving validation to the territorial fragmentation of cyberspace in international law (Schmitt, 2017 pp. 13-14, 17). Of course, when it comes to the question of the role of non-state actors, only the state actors can be subject to the breaching of the international legal obligations, and not the non-state actors (unless of course they are attributable to the state actors). Now, in the domain of technology, environment and others, it is appropriate to focus on the question of human equality and the responsibility of the state to better the conditions of its people. It is often proposed that sovereign equality must be surpassed by increasing the primacy of individuals in international law as subjects. However, that requires policy approaches, which are driven by conscience and not designs to subvert the rules-based system altogether. Also, the policy approaches require the consonance with the realities of the subject-matter, in which individuals must be given more primacy, or it could be converted as a tool to induce policy paralysis into an already confused rules-based international order. Further, the role of companies has become {24}


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prominent, not from a legal point of view, but from a policy point of view, because even if attribution of theirs is not linked to the state, the way they comply with any standards related to, for example, data privacy, environment, transparency towards their consumers, etc., and the role of their host state to regulate practices, contribute together. Thus, the questions related to the subject-matter issues of international law and the utilization of sovereign equality and the policy realities emulated by the companies and other related entities are discussed in the further sub-sections. 4.2

Degree of Influence of Sovereign Equality in Various International Organizations and the Subject-Matter of the Attributed International Organization(s)

Now, this sub-section is an exploratory analysis of the phenomenon of how sovereign equality has its own designs and degrees of influence, which, even from legal and policy points of view, are dynamic, central to the national interests of the states who endorse such policy points (and sometimes even develop customary international law out of it), subject to the international organization and the subject-matter related to it. For a basic principled understanding, the sub-section covers: • How sovereign equality is transcendental to an international law field specifically for making policy decisions; • How the subject-matter of that international law field is shaped in and through the international organization/multilateral framework to contribute to the development of customary international law; Now, authority is an essential concomitant of an international organization (Cooper, et al., 2008 pp. 501-524), and unlike from the usual blind-eyed assumption that sovereign countries have to yield some sovereignty of theirs to the international organizations so that they function authoritatively considering that they principally are the monopolistic contributors to any policy, the yielding of {25}


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sovereignty is factually the clearest reflection of the emulation and transaction of a state’s sovereignty in the crafted way the state desires to be. However, proportional representation is not always a possibility, and certain countries’ demands and visions are often ignored. For example, the first draft of the 2015 Paris Accords had ignored India’s policy demands, which afterwards were incorporated in the final draft (Sethi, 2015). Even from an aspect of positive connotation, countries shape and envision the policy agendas of the international organizations by bargaining their sovereign equality according to the design of the international organization. China, for example, already has their representatives in various key UN bodies either as the Heads of the international bodies or maybe at some other executive position. China also has been accused of utilizing its own position of power to obfuscate the passing or even discussion of mandates, for example in March 2020, when it was the President of the UN Security Council (Deo, 2020). In earlier health crises, the UNSC has been quite much participatory, while the same did not happen in the case of the COVID19 pandemic. Even China, since is an important trading partner of the Dominican Republic, had obfuscated and affected the decision-making autonomy of Dominican Republic’s Presidency in UNSC in April 2020 (Deo, 2020). Of course, such examples do not have a direct connotation to establish liability for misusing sovereign equality multiplied or merely existent. Still, from a policy perspective, the tool of sovereign equality under international law is not just about enabling substance & degrees of representation, since the utilization of sovereign equality itself enables countries to contribute to particular subject-matters which are related to the international organizations in attribution. Here are some brief examples on certain international organizations and some countries, who have contributed through sovereign equality in the qualitative and quantitative development of the policy agendas (subjects-matter) of the international organization, which is valid under international {26}


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law, and how they indirectly shape norms beyond the traditional approaches. The basic trend which can be seen through these examples is described as follows: • How countries enforce their national interests through contributing for international community through these bodies; • How does it shape their role; Japan. In the domain of international trade, economics and finance, Japan has gained much in various institutions such as the World Bank Group, the International Monetary Fund, and even in the World Trade Organization. In the IMF, for example, Japan is in the second position in funding quotes & voting rights (International Monetary Fund, 2021). It is argued that in the year 1998, Japan received a legible quota increase in terms of voting shares, and the regulatory constraints of the economic institutions contributed to Japan’s voting shares growth incrementally (Shibata, et al., 2017 pp. 4, 7). Even in the past, due to the dysfunctional dispute resolution procedure of the GATT, many disputes between Japan and other GATT parties have been resolved through bilateral means (Noland, 2020). Even in the early years, Japan has adopted the approach of voluntary export restraints or VER to ensure that trade fictions are prevented whenever necessary (Shibata, et al., 2017 pp. 9-10; Curson, et al., 1976 p. 260; Bhagwati, 1989 p. 11). These approaches led to Japan’s ascent as an important rule-maker in the international economic institutions, especially the IMF. France. France has extensively participated in the International Civil Aviation Organization since its foundation years, with 3 French Nationals being the Secretary-Generals of the ICAO for 25 years (France Diplomacy, 2021). France considers civil aviation as a significant field of asset for its economic growth and strategy cum security reasons. France has also ensured {27}


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that in all Technical Committees and Expert Groups of ICAO, French experts are also present. France also has a healthy Air Transport Regulatory Competitiveness according to IATA (IATA, 2019). India. India has successfully utilized the agenda of sustainable development for its own economic needs, despite arising restrictive and protectionist practices from the United States and the European Union, even in matters related to sustainable development. India is currently the only country which has the potential to abide by the standards of emission required to be mitigated as per the 2015 Paris Accords, according to the 2020 Transparency Report (Climate Transparency, 2020). India and France jointly founded the International Solar Alliance in 2015, which again contributes to the model of green economy in India (International Solar Alliance, 2021). While the efforts to achieve green economy for the US and EU would be highly cost-intensive, India has the potential to achieve its own proposed quantifiable targets it had submitted along with the NDCs when it had ratified the Paris Agreement in 2016 (Ministry of Environment Forest and Climate Change, Government of India, 2018; Joshi, 2021). India advocates for Common but Differentiated Responsibilities and perhaps can adopt better climate models than the European Union for example. However, at the same time, while India’s traditional priority is economic development, it becomes necessary for India to internalize and present a model of a development power, which again, can develop more policy and legal norms in future with respect to international environmental law (Butler, 2021). The following therefore can be concluded in this sub-section: • Countries can shape their national interests and agendas as they yield some sovereignty of themselves; • Since the same is achieved through yielding sovereignty in various different ways, subject to the policy realities which make governments shape their sovereignty, {28}


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traditional and archaic norms do not work, and the diversification of such degree of influence of sovereign equality can possibly make the trajectory of growth of any customary international legal norm steeper than before; 4.3

The Contribution of Neoliberalism and Multilateralism in Shaping the Positivist Character of Sovereignty in International Law

The characteristics of both concepts in international relations, law and economics can be classified on the basis of the study of ideologies that envision the concepts as tools. Although there is no doubt that both neoliberalism and multilateralism despite being from different fields have some ideological basis, both the concepts have anyhow contributed significantly in shaping the traditionalist and positivist character of sovereign equality in public international law. Following are the ways in which both of these concepts have shaped the positivist character of sovereignty in international law. • Increase in the Participation, Role, Representation and Influence of Diversified State and Non-State Actors • The Modernity of the Rules-Based International Order due to Globalization • The Transformation of Natural Morality and Shared Common Responsibility in International Law as Conceptions Increase in the Participation, Role, Representation and Influence of Diversified State and Non-State Actors. By definitive means, a state actor can be understood simply under the traditional definitions of international law. Even GONGOs (for example), or government-organized nongovernmental organizations (Steinberg, 2001) supplanted in the civil society and NGOs ecosystems across the globe reflect the sophisticated characteristics of how countries and their governments can shape and transform their own specific state

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actors. GONGOs became active since the 1980s, technically, and countries like China have been extensively utilizing GONGOs in African countries. Here are some examples of such state and non-state actors, whose increase in participation, role, representation and influence has contributed to affect or impact not just the notions of sovereignty for countries, but also has effectively shaped the way sovereignty is applied by countries. State Actors • Government-Organized Non-Governmental Organizations GONGOs are technically government-sponsored NGOs, which act as lobbyists for international organizations, political parties and other relevant stakeholders as the governments which sponsor them intend to (Naim, 2009). GONGOs act as indirect groups, to achieve political interests of the states abroad or within their areas. • QUANGOs QUANGOs are considered as Quasi-NGOs, whose power of regulation or sponsorship by national governments are usually devolved. However, such NGOs are yet attributable and under the agency of government agencies at least (Pifer, 1987). Apart from GONGOs, QUANGOs can involve in taking up government functions all across. One of the common examples of QUANGOs may be for example ICANN, or the Internet Corporation for Assigned Names and Numbers, which is sponsored indirectly by the United States Government (National Research Council; Division on Engineering and Physical Sciences; Computer Science and Telecommunications Board; Committee on Internet Navigation; Domain Name System: Technical Alternatives and Policy Implications, 2005 pp. 188-189). Non-State Actors The information age has enabled to gather more value to nonstate actors, and garner their own sphere of influence. Commonly, due to neoliberalism, traditional means of control, {30}


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surveillance and other issues are now subject to change and are not merely monopolized by governments anymore. There are existent sophisticated means to attribute the notion of sovereignty, and even how to undermine them. Examples include how social media companies led the Arab Spring (O'Donnell, 2011; Sapra, 2020; TED, 2016), caused the riots in the UK through Blackberry messenger phones (Fuchs, 2012) and even acts of violence in India on January 26, 2021 (Shrivastava, 2021; Press Trust of India, 2021). Examples with related to military contractors can also be taken into consideration, like the sex abuse scandal in Bosnia with respect to the UN peacekeeping forces, where the troop soldiers were hired by a private UK-based firm (Bowcott, 2005; Barnet, et al., 2001) and increasing military contractors after Blackwater Security Consulting in Libya (2007), who are found working in the Middle East and rest of the West Asia (McFate, 2019). Even in research, several think tanks or research organizations, as non-state actors, whether through media campaigns, consultancy (for e.g., McKinsey consulting France for their COVID-19 vaccines procurement and vaccination policy (Braun, et al., 2021)) or any other means have been involved in transnational or intranational activities (Brown, et al., 2014 pp. 5-6), out of which most of them in literature are political by nature (for example, political competitiveness). In conclusive aspects, non-state actors indirectly are given leverage or used as special actors along with any kind of indirect state actors or GONGOs to enable the following: • Many developed and developing countries are not able to push their policy agendas with respect to their national interests forward. Think tanks, GONGOs, international media platforms and even cyber non-state actors for example thus can assist them in blurring directions of liability and even state responsibility under the Draft Articles of State Responsibility (even if the ARSIWA is non-binding);

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Acceptance of so many multidisciplinary and omnipresent ‘stakeholders’ does not mean their legal inclusion in the international law system as an equal entity to a sovereign state. For example, NGOs cannot sue countries in the International Court of Justice because not just the statute, but also the international legal scholarship does not permit NGOs and such non-state actors. Second, their credibility is always questioned since there are no commonly accepted international rules on either such non-state actors or GONGOs, like the international media, transnational research thinks, MNCs at an international level. This since is a classic form of policy paralysis in the field of international law, there is no foreseeable expectation that such state and non-state actors would get any customary international legal value or any peremptory norms would even develop; Customary international law norms do not develop merely because multilateralism is considered to be justifiable and appropriate according to certain countries. Various state and non-state actors can make things easier for any group of countries to formally or indirectly accept something as a CIL norm, and then with time, if jus cogens are producible, then even objectors can be created. However, CIL norms can even develop or fail to develop if such state and non-state actors by design, are participating in activities of imperialist or controlling nature, if the examples are assessed from a policy perspective;

The Modernity of the Rules-Based International Order due to Globalization. When the term modernity is being used, for the purposes of this portion in this sub-section, it clearly means how consequentiality is developed. The concept of utilitarianism or consequentialism, stems its origins from works developed by thinkers such as Jeremy Bentham, John Rawls and Peter Singer. Now, a deeper analysis of consequentiality is provided in Section 7.1 of the chapter. However, for the purposes of this {32}


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portion, some aspects of consequentiality in the rules-based international order will be covered. Modernization of any system implies that its aesthetic and pragmatic elements will also modernize or adapt the revolutionized or evolved form of realities. This happens even in the fields of innovation, technology and economics, where some limited degree of linear consequentiality (meaning – any consequence which will just come, and reach its endpoint) has to be performed at the end of the subjects who are susceptible to such thing. There can be events of circuited or cyclic consequentiality (as proposed by various Indian, Chinese, Japanese and other Asian philosophers) that whether it is revolutionized or is evolving, the process is perennial and thus, long-term without a clear linear endpoint. Even the transformation of customary international law as the figment of the political construct of international law can be either cyclic or linear. Globalization, although is a perennial economic phenomenon, which exists in different degrees, forms and sizes as it has existed for centuries, in the context of the rules-based international order, since the 1990s, has been technocratized with rules that shape the modernity of the rules-based order. Here are some examples where modernity in the context of linear consequentiality (mostly) is shaped due to globalization through the transformation of international law: International Intellectual Property Law In the realm of intellectual property and international law, if a thorough analysis of the contributions by the World Intellectual Property Organization and the International Telecommunication Union is done, much then can be estimated with respect to the sub-section. WIPO, unlike the traditional years when IP Law emerged, now embraces more multilateral action to achieve the sustainable development goals and their targets (World Intellectual Property Organization, 2021). Now, in the activities of infrastructure development and assistance, WIPO is presenting that there are certain cyclic targets too, especially for the developing {33}


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countries. However, the modus operandi is linear consequentialist due to the design of the organization’s role in governing international intellectual property law. Even France’s earlier contributions to protect rights of artists and creators, from the moral domain (Peeler, 1992 pp. 423-456) have very much contributed to the modernization and evolution of IP Law. Traditionally, France has developed a sense that IP rights must be availed by people regardless of any of their distinctions and identities, which has now become a normal for international intellectual property law, thereby giving and make IP Law completely a legal rights field. Even the WIPO in 1998 in a document on Intellectual Property and Human Rights, had traced the universal character of intellectual property rights and cultural rights, especially for the indigenous peoples (World Intellectual Property Organization, 1998 pp. 13, 43). International Technology Law The Tunis Agenda of 2005 formulated the stepping stone for proper existence and modernization of international technology law (United Nations; International Telecommunication Union;, 2005). The agenda document WSIS-05/TUNIS/DOC/6(Rev. 1)-E led the foundation of regulating and enabling the ICTs or the information and communications technology. Of course, the modernization of the international cyber law literature has been seen apparently, through the development of the Tallinn Manuals (Schmitt, 2017), the UNICRI, the General Data Protection Regulation by the European Parliament in 2018 (European Parliament, 2018), the recently proposed Artificial Intelligence-related legislation (European Commission, 2021) and other legal reforms. In the same EU-led proposed AI legislation, the Annex 1 for Article 3, point 1 of the legislation is quite inquisitive, because it reflects the modernistic and consequentialist attitude of the European Commission. However, Annex 1 (b) by all means, which is about restricting the definition of logic, is focusing on a linear consequentialist model of restriction and regularization, which again might be {34}


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problematic (Goodson, 2021). The Transformation of Natural Morality and Shared Common Responsibility in International Law as Conceptions. This portion is a critical analysis of the philosophical contributions in the field of international law with respect to the notions of (1) natural morality and (2) shared common responsibility. Natural Morality The International Court of Justice has, in repeated ways, expressed concerns on the dichotomous relationship between political conscience and political will (International Court of Justice, 2018). Judge Cançado Trindade while expressing his disagreements with respect to the ICAO Council case (International Court of Justice, 2018), explained that human conscience must be above any political will in the due realm of natural law. He believes that in conformity with the principles of recta ratio, all State subjects must behave with conscience, since the principles which intermingle law and ethics emanate from human conscience. The Advisory Opinion on the Legality of Nuclear Weapons is a noted exception, where the Court has taken a positivist legal approach (International Court of Justice, 1996). It is often estimated that when even ethics, much different from morality, is determined in the strictest and rigid manner possible, then the humane component of natural morality is not achieved (Boldizar, et al., 1999 pp. 279-311), and is dissipated. Such examples are found in the case of the Nuremberg trials and even the Case concerning the Continental Shelf (International Court of Justice, 1985 pp. 39, para. 45). This at least shows that universalization of principles of natural morality either should be avoided to at least some extent in substance through abrupt generalization, or if universalization is done, then procedurally, a proper multicultural way of development is essential to ensure that in operation, natural law and morality sustain and improve {35}


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with experience. Of course, substantively, the concepts can be attributed and even connected with other natural law conceptions, to a limited extent. This definitely would be important since natural morality, ethics and human conscience are the generalist tools of international legal theory, which are put into use in order to adjudicate the political will of the states. This may work even in the case of treaty law interpretation. Shared Common Responsibility The notion of common responsibility is not something new in public international law because for ages and centuries, the notion of globality and cosmopolitanism has been embraced, especially in continental Europe. In the context of the postcold war global situation of the rules-based order, the concept of shared common responsibility is traceable in many forms and ways. For example, the emergence of ESG Compliances and Corporate Social Responsibility, even if is in the domain of private international law mostly, is based on the ideamodels of responsibility for a global humankind, which anyways has to be taken up by the corporate sector too, whether they are startups, or multinational companies (Dörr, 2020; Muchlinski, 2008). In the domain of international environmental law, the concept of common but differentiated responsibilities (CISDL, 2002; World Trade Organization, 2001) has emerged to reflect upon the shift of understanding in equality from formalistic and strict to substantive. This was even reflective in the Shrimp Case of 2001 (World Trade Organization, 2001). Even humanitarian intervention and the Responsibility to Protect have been often interpreted as ‘global’ ideas, and it has been regularly propounded that the international community has a responsibility towards any crisis happening in a country. In theory, the concept and its variants or versions have been amazing. In practice, however, the reality that the system of international law is majorly decentralized has been often ignored. However, one example of global support can be seen through 2 important incidents related to India, which are: (1) India’s Vaccine Maitri initiative {36}


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(Ministry of External Affairs, Government of India, 2021; Pant, 2021); and (2) several countries coming in support for India during the second wave (Parpiani, 2021). These do not directly reflect upon how common responsibilities should be made, but with an analytical perspective, it is worth concluding that the support provided to India and at the same time, India’s philanthropic gesture is very much inspirational for policymakers to achieve common responsibility in a soft manner. 4.4

Fictional Sovereignty and the Individualization or Collectivization of Sovereign Equality

The concept of fictional sovereignty in legal theory has been discussed widely. However, a lecture by Quentin Skinner in 2008 explains in a much nuanced and detailed manner about persona ficta (Abhivardhan, 2021), or the concept of fictional sovereignty (Skinner, 2008 pp. 325-370). Fictional sovereignty, according to Skinner, essentially means that certain notions of commons or the ‘good’ to be adhered or committed – even without direct descriptions of sovereign equality with a traditionalist outlook are expressed. This can be seen by understanding the concept of civilizational states as well. Civilizational states are merely concepts for diplomatic, political and even cultural policy which are put into use by sometimes individual countries, and sometimes international organizations. Even some non-state actors develop their forms of persona ficta. However, for the purposes of this chapter, the same have no relative viability as such. Thus, the analysis will be constrained within how states and international organizations commit to fictional sovereignty. India, the United States, China, the European Union, Israel, Saudi Arabia and Russia conceptualize their own ideas of civilization states (Abhivardhan, 2021 pp. 2-5). The United Nations through its subsidiary agencies, programmes and special groups also push an agenda to promote globalism and cosmopolitanism. Proposals related to the idea of world {37}


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governments through a UN Parliamentary Assembly are being propounded (Niebuhr, 1949), especially by the European Union (Bummel, 2021; Marsh, 2018). The example of the European Union thus, shows in many ways how fictional sovereignty is being put into use. Commonly, the following parameters are observed, when countries either individually develop notions of fictional sovereignty separately, or a group of countries (informally or through international bodies) collectively form notions of fictional sovereignty (like European sovereignty, for example, or the Article 51 of the UN Charter). Here, sovereignty is surely being yielded either through countries’ collaborative efforts, or merely through multilateral organizations. The following parameters are described as follows: • The trajectory of consequentialist approaches towards the subject-matter policy (linear or cyclic); • The purpose of the multilateral organization/the group of countries/the country’s policy itself; • How much top-down positivist international legal approaches will be replaced or their transformation or crystallization into CIL will be slowed down or steepened; The reason why countries do not intend to dilute the traditional estimate of sovereignty under international law and given relatively equal (in substance) status to other ‘multiple stakeholders’ is because they are interested in utilizing international organizations for keeping their end of the bargain, and at the same time, stabilize cum expand their interests and motivations. This in any way or form, also shows that countries may differ in their global approaches to contribute and help the ‘international community’ and the rules-based international order. This has been beautifully explained by Simon Anholt in two important terms – entrepreneurial multilateralism & the good country index (Anholt, 2020). Entrepreneurial multilateralism simply means that there are various stakeholders within the state and {38}


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non-state actors compacts, and if they are in case involved in the multilateral system, they must use the existent systems of multilateral governance with an entrepreneurial touch. It also means that the principles of entrepreneurship along with the modus operandi of entrepreneurial zeal and interest must be applied in the cause of global governance. The Good Country Index is, like any index, a statistical estimate. The idea behind the estimate is central to a reasonable notion that countries do not really need to lose their sovereign and national character, but at least must envision to contribute in the global commons by reflecting and implementing the good part from their own indigenous and national origins. Vaccine Maitri by India is an excellent example like the 5 Panchsheel Principles, or the principles of peaceful co-existence. However, the positivist international legal conundrum cannot be diluted or replaced so easily, because some limited space for legal development will anyways be kept on bargain by the countries. Therefore, a study of fictional sovereignty very much shows that the CIL norms may or may not be built anytime soon on any subject-matter, but the way a persona ficta is sculpted, would not just reflect the sovereign and national character or interest of the countries (or the sovereign/collectivist sovereign character of the international organization(s) or grouping(s)), but also would endorse further intersectional analysis into the cultural and other geographical attributions, which contribute to the global commons. However, an overexaggerated form of multilateralism would damage the cause of multilateralism and lead to more political disagreements on the transformation of CIL norms. Thus, it is appropriate that CIL changes remain incremental, slow but steady and cautious. Limited multilateralism is way better than accelerationist multilateralism.

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5 Historical Transformation of Jus Cogens

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The concept of jus cogens was elaborated and formalized through the Vienna Convention on the Law of Treaties in the year 1969 which abjures any treaty from being passed if it is in contravention with jus cogens norms. The ILC during 1963 while drafting VCLT discussed the idea of peremptory norms. In the year 1953, ILC’s Special Rapporteur (Lauterpacht, 1953 pp. 90, 93), Hersch Lauterpacht had formally proposed the idea of peremptory norms which had an overriding effect that was stated as a treaty and its provisions would be abrogated if it involves a performance of any action which is illegal or illegal as concluded by the ICJ. These principles which opined the ideology of international morality and public policy were so perspicuous that the international courts considered them as widely prevalent within the general principles of law by the nation-states and the ICJ is bound to apply these norms. It was included within Article 53 of VCLT. The article invokes that the peremptory norms are expressly gathered from state consent. It is widely accepted and recognized by the nation-states, and these are norms which are universal and fundamental, widespread, and inherent and posits an idea of international public policy. There are some theoretical discrepancies that is associated with the idea of jus cogens due to its fundamentalist, rigid and unmodified structural foundations for instance the idea of how certain norms can attain the structure of jus cogens if they are already inherent norms and since there could no idea of retrospective or prospective involved. 5.1

Sovereign Equality as a Tool of Legal Supremacy

If the concept of state sovereignty is superior to the developing international law, then the states being bound to certain norms that they have not explicitly consented tends to leave an ambiguous answer in relation state sovereignty. Nevertheless, there some norms which are widely construed as peremptory or jus cogens which includes the crimes against Humanity under the Rome Convention, genocide, aggression, torture, slavery, and crimes of aggression which are fundamentally prohibited from occurring (Bassiouni, 1996) and the state’s duty to prevent the same. Further a committee was established in the year 1987 which {41}


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monitors and ensures the compliance of the states to implementation their obligations under the Convention against Torture (CAT). In addition, the ICJ (International Court of Justice, 2006 pp. 1, para. 229, 431) stated that the preventive measures should be undertaken as per the capacity of the state and the obligation to prevent the genocide does not arise when the activities leading to genocide commence, rather the ICJ assumes that the state owes a duty to act as per its international obligations if a serious risk or threat of a genocide is present. While recognising the international crimes as jus cogens, it entails the duty of the state to prevent and prosecute individuals committing of such crimes. The obligation or duty is imposed on the state which is the obligatio erga omnes to prosecute or extradite individuals and not to grant immunity to any individuals regardless of their position. Jus cogens norms tend to substantiate their normative validity upon nation states prior to the formulation of any treaties and conventions. The normative and positivist idea is that it is characterized without the consent of the states. Peremptory norms relating to the general international law can lead to the inception of the obligations owed by the state to the international community as whole. A state has the right to claim responsibility from another state for any breach caused within the peremptory norms in consonance with the Rules of Responsibilities for Any Internationally Wrongful acts3. For instance, in the Phosphates in Morocco (Permanent Court of International Justice, 1938 pp. 1, para. 28) case, where certain Italian citizens claimed the rights to explore the phosphate deposits in the then French-protected state Morocco. PCIJ held that when one State commits an international wrongful and an illegal activity against another state, then the international responsibility is assumed to have been established between the two states (International Law Commission, 2001). The relationship shared between the peremptory norms, general international law, and obligations erga omnes is that they have been 3

See Conclusion 17 of the ILC Report of 2019 (International Law Commission, 2019).

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characterized by the practice in the states. For instance, the Democratic Republic of Congo in the statement in the General Assembly proposed the idea for enacting the Treaty on the Prohibition of the Use of Force and insisted the idea of treaty being an erga omnes obligation upon the nation-states (Zaire, 1980 pp. 1, para. 38). The jus cogens norms have been speckled within the international legal systems. The ICJ identifies the jus cogens norms as erga omnes that the state owes towards the rest of the international community (International Court of Justice, 1970). As these norms concern states as a whole, all states have a legal interest to ensure their protection and are obligated to follow them. The courts such as ICJ have faced a trouble in balancing the tension between the peremptory norms and state sovereignty. The notions of state sovereignty would require the states to consent to the jurisdiction whereas the issue of peremptory norms before the court does not require for the state to consent to the compliance (International Court of Justice, 2006 pp. 86, 87). The approach taken by the courts mostly tend to make references to state consent and subsequently focus on building normative structural framework around formulating jus cogens norms carefully in a manner that it does not outweigh the state centric (consent-based) approach of the international legal systems. Therefore, international courts generally take a cautious approach while imposing obligations that are binding on the state in a manner that the sovereignty of the state is not compromised. 5.2

Ambiguities and Anomalies in the Position on Jus Cogens for Countries in the 21st Century

Today’s position on jus cogens norm suffers from some sizeable vacuum that are unfilled within the area of substantiveness, jurisprudential applicability universalism & definitional ambiguity. At the most fundamental level, the jus cogens norms seek to reflect a paradigm shift of focus on international law from the concepts of state sovereignty etched into the international legal systems. The jus cogens pose as a superseding norm which does not

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place any reliance on authorities or sources. Therefore, it denies the possibilities of various choices gathered from global governance and political realities. For instance, the two-element test for identification of CIL which is considerable amount of state practice and opinio juris has to be gathered for it to be identified within the sphere of customary norm is not appropriately followed. The approach advanced by most courts while dealing with the cases are more assertive and use deductive analysis as opposed to the traditional method. The courts do not segregate by stating how such evidence assisted them in reaching and determining the customary norm, instead they attempt to combine all the evidence and conclusively determine that both the state practice and opinion juris exist (Choi, et al., 2016). Another ambiguity is the distinction or rather the approach in identifying the jus cogens and the erga omnes obligations. In the general sense, the jus cogens norms are binding on every state while erga omnes obligations do not bind all the states. Slavery and genocide as discussed above are all jus cogens norms and are consecutively erga omnes obligations, whereas diplomatic immunity, racial discrimination constitutes erga omnes obligations (International Court of Justice, 1970 pp. 1, para. 34). There is lack of concrete literature to assist the formulation between the erga omnes obligations and the jus cogens norms even though an apparent difference exists between both. There are some scholars argue the acceptance and universalism of the content present within the jus cogens norms to validate its peremptory nature and this can help in differentiating the moral content of the obligations owed by the state to the international community. However, this approach precludes the existence of the moral content within the jus cogens norms that greatly influence its conventional status through the treaties. Further even if there exists some moral content within the erga omnes obligations, the reason behind the conversion of the moral content into legal obligations gathered from nation states is not apparent. It is therefore concluded as follows: • Even though the idea of sovereign equality is the foundational principle of international law, there exist some {44}


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peremptory norms which states have to positively adhere and not derogate; Peremptory norms create a sense of mutual responsibility among various states and if any of them derogate the norms themselves, then they bear the responsibility towards the international community; There is a huge lack of literature available with respect to jus cogens norms and erga omnes, when it comes to the identifiable characteristics of both the concepts despite the fact that they are apparently distinctive;

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6 Historical Transformation of Persistent and Subsequent Objectors in CIL

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In the backdrop of multilateralism, the elements of custom might be present only in some state or only a specific portion of the custom might be available in subset of countries. While customary international law is capable of creating a binding effect on all states, some state nevertheless can oppose the custom that is emerging against states that hold them binding on all nations. The rule of persistent objector explains that a state can oppose a rule of customary international law when the rule is in the process of crystallization and the rule would not be applicable to the state while it upholds its opposition against the rule. The objections should be clearly presented and might be known to other states. 6.1

The Persistent Objectors

In the pursuit of finding the earliest evidence of the usage of the persistent objector rule in most rudimentary form, the legal usage of the same has to be examined, especially in the context of the jurisprudence by the ICJ. These cases are used as a yardstick for determining the earliest usage of the rule. The Asylum case (International Court of Justice, 1950), revolved around the decision by Columbia to grant diplomatic asylum in the year 1949 to Victor Raul De la Torre. Peru claimed that he was guilty of the crime of military rebellion and Colombia granted asylum on the ground that he was a political offender. Columbia argued several times by stating that on the basis of various treaties and local customs of the Latin American countries, it was right in holding the nature of his offence as being political for the justification of the asylum. Peru in opposition claimed that it was a common crime of the state and should not be granted the status of asylum. ICJ held in its decision that even if such a custom existed between Latin American countries, this custom could not be claimed against Peru, which in contrast rejected the custom and its evidence can be seen from its non-ratification of Montevideo Convention of 1993 which concerns the matter of diplomatic asylum. Another notable case in this regard is the Fisheries case (International Court of Justice, 1951). This case concerns the {47}


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delimiting of the baselines of the territorial sea according to Norway which disallowed British fishing boats to fish off the Norwegian coast. UK claimed violation of international laws as the Norwegian country in determining the baseline was in contradiction with the general customary law of 10 nautical miles commonly referred to as the 10-mile rule. The ICJ in turn held that the 10-nautical-mile-rule that the UK propagated did not attain the status of a binding customary international law and there was inadequate practice for it cross the evidentiary threshold of the state practice and opinio juris to assist in the crystallization of the rule. The court held that Norway has always opposed to the rule as the country had always rejected to admit it as a rule that was applicable of the Norwegian coast. While there are several critiques of associating these cases with the persistent objector rule, the cases are certainly the touchstones of the most rudimentary application of a ubiquitous custom that is claimed by the state. The Asylum (International Court of Justice, 1950) decision contemplated the requirement of a constant and uniform practice by all the states that has claimed the usage of custom. The question that needs to be examined is the content of opposition that needs to be made by the state. The state seeking to reject the norm of any customary law can either reject the existence of the rule rather than argue its applicability or it can accept the existence of the customary law but question its applicability of the rule to be binding towards the state. This former approach would mean that the state expressly dissents to the applicability to the recent emerging norm of customary law. In the latter case, the state dissents that existence of the customary law and the fact there is not enough evidence of state practice to crystallize the customary law as of yet. More often than not, the states do not take the approach that the nascent customary norm is inapplicable. Rather, they take the approach of claiming that the customary norm has not reached the stage of crystallization. This can be viewed from the example of the United States’ statements in the 2005 International Committee of the Red Cross (ICRC) study on the aspects of IHL (Henckaerts, 2005). ICRC {48}


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concluded that the United States, the UK, and France were acting as persistent objectors to the customary norm on the prohibition on the use of methods that are intended to cause widespread and permanent damage to the environment. In usage of nuclear weapons, the United States took an approach by claiming that no such prohibition can viewed from their customs. United States objected to the norm by claiming that there was inadequate state practice and opinion juris for the norm to be an emergent rule and as a reason asserted that they were not bound by it. The 2015 ILC draft (International Law Commission, 2015) on the identification of customary international law states that the for the persistent objection rule to be in effect, the state should object to the rule of CIL while the rule is in the process of formation and antecedent to the norm being crystallized. 6.2

The Subsequent Objectors

This type of objection as the name suggests raised after the Customary International norm has already been conceived. However, this objection cannot be claimed by the state when the norm has already been established and thereby cannot claim exemption from it. It will be treated as a digression from the international law. The persistent objection of a customary international law norm should be done within a specific time frame i.e. before the crystallization of the norm as CIL or while it is in the process of emerging as a norm during its incipient stage. Subsequent objection is an opposition that is raised after the norm has been crystallized. Objection that can be raised should pertain to norms that are in the process of formation rather than already existing CIL norms. Objections that are derogated from the established customary international norm will constitute an international wrong (Fon, et al., 2009). The discussion of subsequent persistent rule though may not be an internationally accepted principle but is still relevant to comprehend the formation of and development of CIL. Customs can be tailored by the states by adopting the contrary approach from the existing norm and the custom would change accordingly (Crawford, 2012). This cannot be equated to subsequent objector {49}


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rule, and it is rather a method of development of CIL. The only position where this principle could be affirmed is in the case of when the state that is dissenting gains the vote of majority of states to dissent to the existing customary norm by modifying the custom altogether or dissent to the norm prior to the crystallization of the norm. In the aforementioned cases of Asylum case and Fisheries case (International Court of Justice, 1950; International Court of Justice, 1951), the courts grappled with the question of qualification of asylum status and the 10-mile limit claimed by the UK, respectively and whether they had reached the status of customary international law. Thus, these states raised their objections before the customary international norm had already been formed. The courts however did not deal with the questions of the time limit for proposing the opposition towards a customary norm and what the status of the norm would have been had it been proposed after the customary rule was conceived. The temporal restriction for claiming the opposition against a customary norm though has been critiqued by some authors has been opined by the ICJ’s decision in the North Sea Continental Shelf4, stating that Germany had failed to raise an objection at a time prior to formulation of the customary principle of equidistance in reference to the delimitation of the continental shelf and thus the state cannot be avail exemption. The objection to be raised in reference to the time might not be definite criterion because to establish this criterion, there are less than handful of examples of when the states have opposed to the customary norm after its conception. The very few states who have attempted to take to take assistance of this principle after violation or rejecting an existing customary norm have been unsuccessful in its attempt. Thus, we can safely conclude that for the present analysis; the temporal restriction for claiming an objection is prevalent as a criterion. One such instance where subsequent objection has been raised 4

See the dissenting opinion of Judge ad Hoc Sorensen in the North Continental Shelf case (International Court of Justice, 1969).

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was in the case of states present in the equatorial line i.e., Brazil, Ecuador, Indonesia & Zaire are amongst others that jointly opposed the presence of the geostationary satellites (Green, 2016). They objected on the basis of the presence of these satellites and their launch, orbital position of these satellites and claimed that these satellites would fall within the territorial jurisdiction of some of these states and their opposition was enunciated clearly by the enactment of the Bogota Declaration of 1976 which disallowed the process of placing and launching geostationary satellites for weather observation, monitoring oceans, tides etc. However, these satellites were already in place since 1950s in the equatorial states without an opposition from the equatorial states. The Outer Space Treaty, 1967 which obligated the zone considered as “outer space” not to be claimed by any of the states and most of states that had raised an opposition now had already signed the treaty priorly. The Declaration adopted by the states had been too late to dispute the existence of placing and launching of the satellites and thus, the customary norm had already been formulated and accepted by majority of the states. Hence, most states that had objected reached an impasse and passively accepted the customary norm that had already been in place. An overview of these rules will assist in comprehending the position, development, and circumstances under which the principles of persistent objector rule and the subsequent objector rule were applied. Though the latter principle is very rarely claimed by states as examined through its analysis, application, and the reasoning by the courts. The major reason contributed to the lesser usage of the persistent objector principle is mainly twofold - the states which take a contrary view of the emerging the customary norm would be considered as exceptions, a pariah that is straying away from the evolution of customary law principle. This would begrudgingly impact the international and diplomatic relations of the state with other countries that are in support of the emerging customary norm. The negative implication of claiming non-applicability of the rule could weaken the international political stability of the country. The other {51}


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stance is that the state by dissent has voluntarily chosen to distance itself from other countries. There are various negative implications and impacts this rule will pose if the states chose to place their reliance on it.

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7 How Policy Leadership and Instrumentalism Shapes CIL

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Since, it is clearly evident that sovereignty is instrumental in shaping activities of international law, beyond the obvious and reconciled undertaking that international law is a ‘political construct’, the role of policy leadership stems from the aesthetic and pragmatic approaches to employ state practices. However, state practices, no matter what figment of experience they provide, are anyhow dependent on the nature of consequentiality, which makes policy decisions come into play. This section thereby covers the role of policy leadership and the instrumentalism behind the same in the following sub-sections: 7.1

Consequentiality in Risk Assessment & DecisionMaking: Linear & Cyclic

Dealing with any risks, which are connected with the legal development of a norm – is a recently discovered issue of study in the field of strategic studies. Generally, analysts believe that only political and economic risks cover the space of consequentiality as to how to ensure the status quo transforms slyly but since is pretended to be fragile or is fragile, so is not damaged. This sub-section covers the way risk assessment should be done, from past examples in the field of international law, relations & policy. Please note that the features mentioned below might or might not ideally fit in every exemplification provided. However, to some extent, they are reflective. Policies which are based on linear consequentialism have the following features: • They have end-points and end-goals and may/may not be short-term or long-term by default; • By design, they are linear and are not expected to be subjected to cyclic improvements; • Most of such policies tend to focus on creating artificial equilibriums and are susceptible to shocks. They, topologically, by design focus on the mechanical {54}


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animation of first-order policy changes, without clear estimate of the second-order or the third-order policy changes; The communication strategies espouse utopian notions with respect to the credibility and pursuit of the policy;

Policies which are based on cyclic consequentialism have the following features: • Instead of end-points, they have positions based on the destination of the task(s) attributed to the cycle itself. It can be again, either short-term or long-term; • Unlike linear approaches, policies of these sort are designed to squeeze out and deal with any risks or hazards uncalled for. Any random activity or occurrence how is dealt by the system and its policy, shows the strength of the policy; • Policies like these do not rely on artificial equilibriums and focus on naturalized or experience-based resilience. In either of the two cases, the second, third, fourth to the Nth order of policy effects or changes are if not predicted, then at least dealt with; • The communication strategies usually reflect a short-run attitude in expression towards the general public. They are considered to be direct, clear and non-abstract; In reality, and in proposition, we can see the following sets of examples: • Non-ideal linear approaches • Non-ideal cyclic approaches • Mixed non-ideal linear-cyclic approaches having elementary features of both linear and cyclic approaches in policy Here are some examples of policies to explain how linear and cyclic approaches develop.

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The United Nations Security Framework for the RulesBased Order. The United Nations Charter is a clear estimation of a legal document, which by all means is of international and constitutive scope and character. This is the reason why the Charter is assumed to be like that of a constitution, and its Key Organs are referred to as the Charter Bodies (for e.g., the Economic and Social Council and the Security Council). Every programme, ECOSOC-member-organization (means intergovernmental body), special group and other ad hoc bodies and tribunals have their own policy frontiers. For example, the mandates of the International Court of Justice and the International Criminal Court differ quite as much, even if on principle of action they seem similar. The design of the organs, subsidiaries and bodies in the United Nations definitely have contributions from various multicultural diasporas. However, there should be no doubt that managing the United Nations involves all sorts of realities when policies are debated, accepted, put into action and then rechecked. There are no ideal methods and means, and so at the best of the UN system’s extent, it is expected that the system works transparently. For the purposes of this sub-section of the chapter, a critical analysis of the Security Apparatus of the UN would be appropriate. The security apparatus begins and ends with the UN Security Council, which is juridically argued as kind of an executive body within the UN system. There are valid reasons behind this. The General Assembly’s approved Resolutions do not necessarily contribute in the transformation or evolution of Customary International Law as directly as UNSC Resolutions and ICJ Judgements, Advisory Opinions & Orders. It can be challenged by the view that historically, there have been few examples which show that the UN GA Resolutions have some instrumental value in shaping important treaties and international legal instruments (Rul, 2016; Sloan, 1948 pp. 1-33). That instrumental value is by all {56}


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means, indicative (Schwebel, 1979 pp. 301-309). Those resolutions can be assumed of some international character since a simple majority of the UNGA has passed it. However, despite the fact that from Apartheid to COPOUS and Outer Space Treaties, and even the International Criminal Law, the UNGA represents the administrative and participatory unit of the UN, since many bodies report to the GA as well, the representative essentiality of the UNGA thus should not be ignored. In the case of the Security Council, there are certain generic problems, which affect the institutional credibility and potential of the organ. Some common problems of the organ include the Veto Power concept by design, lack of efficacy of sanctions and the peacekeeping operations cum the international criminal tribunals and the ICC. The problem with the concept of concurrent vote exists not just because any permanent member can veto any draft UNSC Resolution due to disagreements. The UN, like any international organization that old, has an imperialist history, which has more to do with the systemic conditions of development and backlashes in the policy approaches within the system that have been ignored in general. The effectiveness of the economic and military sanctions is challenged due to many issues, but this also ranges back to the imperial structure of the organization and its incompetence to deal with the policy issues. This even applies to the severe mandate issues of the International Criminal Court and other International Criminal Tribunals. There is definitely an element of realpolitik, where the P5 members have important stakes in any of the problems within the UN Security Council and its apparatus. For example, China deliberately blocked any discussion on the issue of global health security in March 2020 in the UNSC under its 1-month Presidency. Even if political rhetoric is ignored on the COVID19 pandemic, China definitely blocked means to develop confidence-building measures for the COVID pandemic, which was not the case with other epidemics and pandemics in the past.

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Also, the UN system anyways, by virtue of its representatives’ commitments, like in the 1990s, after the Berlin Wall incident, will endorse more ‘inclusive’, ‘intervening’ and ‘allcomprehensive’ means to induce multilateralism for the global south countries. The problems within the UN are deeply systemic, and it has more to do with the way the global north countries, at most collaborated within the organization. The Global South countries however too, need a better directional approach, not through the approach of TWAIL or the third world approach of international law due to the field’s counterproductive nature, but through proper decolonial and pragmatic approaches to global governance. India, Israel, Singapore, Japan, South Africa and even some Eastern European states reflect upon those elements of development economics, which again, are contingent to the steepening of CIL developments, either through the works of the International Law Commission and Sixth Committee of the UNGA, or through other individualized or collectivized means of yielding sovereignty & national interests. The UN itself therefore is an example to show how various cyclic and linear policy approaches exist, and need to be dealt surgically. However, the key schematic undertaking should be that the UN system has to be cyclic consequentialist, in terms of squeezing out any risks and dealing with them by adapting with any random changes. The Biases Within the International Human Rights Approaches. The system of global governance and human rights, is another interesting case study, and must be dealt surgically. The system and its legal development is generally accorded to the generations theory of human rights. The theory (Domaradzki, et al., 2019 pp. 423–443; Vašák, 1977 pp. 29-32) by Karel Vašák has its own limits however, because the theory does not have clear basis for establishing the hierarchies. The theory also deliberately ignores Asian, African and Pacific histories and {58}


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the perspective of human rights of those regions’ peoples. It formulates that the American and French Revolutions are superior to other revolutions or any event of cognizance of human rights, be it of any nature. The last problem with the concept is its deliberate assumption that it is of cyclic and perfect nature, while in practice, and understanding – it is of linear nature, and highly flawed (Jensen, et al., 2017). Similar applies to the UN Human Rights system (and not necessarily the human rights framework through the European Convention of Human Rights and the Council of Europe and other regional IHRL systems). The basic concomitant of international human rights law is right-centrism (United Nations Population Fund; United Nations Sustainable Development Group, 2003; Miller, et al., 2019 pp. 699-718), which means focusing on a rights-based and rights-inspired approach to render human rights for all. Although on paper, the concept is beautiful, and must be embraced, on practice, the same has not been achieved, which involves various systemic and political biases within the international human rights systems. In terms of academic contributions, there is a deep lack (not in terms of mere representation) of available international human rights approaches that reflect non-Western value systems. The problem is not the existence of human rights as a concept, since the need of a rights-centric approach is essential to preserve and evolve human rights exercises and protection. However, the neocolonial attitude does exist in the aesthetic components of the approaches towards assuring and implementing IHRL among the developed countries, at most (Willmott-Harrop, 2003). It also exists in the lack of referential understanding of any understanding of any unideal condition, which cannot be sometimes, fit into the generalist approaches in the generic international human rights framework. By mere recognition that international human rights or human rights existed in all civilizations as a 1969 UNESCO publication tried to prove (Hersch, 1969), does not make policy reforms in the IHRL system. Affirmative recognition of human rights to be safeguarded by the state {59}


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should even not be a policy issue at all. However, relativist positions provided by countries must be assessed with an ethical perspective and also in line with how social mobility works (Blaut, 1993). United Arab Emirates and Afghanistan are perhaps the best examples to explain social mobility. Afghanistan, despite military and economic support from the international community, especially India, the US, the UK and other countries, has social issues with respect to women rights (Mishra, et al., 2021). The UAE is technically, an Islamic monarchy. However, in terms of quality of life (United Arab Emirates Ministry of Foreign Affairs & International Cooperation, 2020) and social liberalization (Masood, 2019; NDT Bureau, 2020), it is way ahead many countries in the Middle East, except Israel. The dichotomous assumption that since there is no democracy in the state, there exists no human rights, is clearly a neocolonial assumption by the scholars in the field of law and human rights, especially from the developed countries in the West. Afghanistan is a democracy, but has not been dealt reasonably since its internal conflict and relations with Taliban (Laskar, 2021; Akbaruddin, 2021). This example shows that creation of artificial dichotomies in determining human rights violation and even quality of life (since development is becoming an important part of rightscentrism) does not help (Douzinas, 2019 pp. 93-95; Wallerstein, 1995 pp. 1161, 1176–77). It also shows that, in accordance with Costas Douzinas’ analysis on the ‘Paradox of Rights’ (Douzinas, 2019 pp. 100-105), value systems differ across the world, and do not require to be pivoted with a sense of artificial dichotomy. Social mobility is reflective in the international human rights framework, which is why a development-based approach to rights-centrism has replaced the old 1950s approach where focus was essentially on according basic rights other than those of development to the people (which itself traversed long from the consensus achieved in the Congress of Vienna and the treaty of Westphalia). However, groups and individuals must be closely entitled with social mobility as a human right, and {60}


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their representative, participatory and active considerations must be, without any confirmation bias, be recorded and analyzed, since international human rights law like any public international law field has much to learn, improve and apply from the reality that multicultural engagement happens at various levels through various state and non-state stakeholders. IHRL thus from the perspective of consequentialism, resembles a promise of cyclicity, like the UN, but with the problem of abrupt linearized goals, which impedes or damages the purpose of the framework. The GDPR and European Union’s Regulatory Sovereignty. The General Data Protection Regulation of the European Union, by all means, is a European regulation, which has transnational consequences (Slaughter and May, 2016). For example, if an Israeli company is taking private information from EU citizens, then their infrastructures by design and default, under Articles 3(2) & 4 of the GDPR (Or-hof, 2018), subject to Articles 13-17 of the Regulation, must be constructed in such a manner that the EU citizens’ data rights are adhered. This definitely is a great case for the European Union, since by all means, the vision behind a European Union and the single market has been to construct a regulatory state (Bradford, 2020 pp. 9-11; Korreck, 2021), which the European Commission rightfully considers under the domain of ‘European Sovereignty’ (Madiega, 2020). Like the Council of Europe focuses on human rights governance, the EU has its own organs, which contribute in developing Europe as a regulatory superpower. In the realm of cyberspace, geoblocking is common because of EU’s regulations, which are abided by platforms such as Amazon, YouTube, Hulu and others (European Commission, 2021) in streaming videos. However, in the field of consumer services, not all companies opt EU-protected geoblocking. The EU also had passed a regulation in 2018 in the European Council to prohibit unjustified geoblocking (Council of the European Union,

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2020). While there is no doubt that the EU’s stringent measures, whether data-related or financial are strong in order to protect the legal rights of EU citizens, the economic backing behind the same leads to an increase in maintenance costs for EU and non-EU companies anyways. Then, the issue of regulatory sovereignty might not be accepted by other countries, and maybe their sovereignty could be undermined. Nevertheless, the European Union’s policy approach towards GDPR is clearly linear with some cyclic considerations in distributed ways. 7.2

The Aestheticization of State Practices and the Evidentiary Value of ‘Sources’

For the purposes of this chapter, the evidentiary value of the sources of international law will be strictly based on the International Law Commission’s works on the identification of customary international law. The meaning of aestheticization is quite simple. It means to create visual/audio/both experiences for people in a political framework. Aesthetics in general means what is experienced and so, how does that experience make the subject realize. Generally, the aestheticization of politics has been linked to regimes in the 20th century (Benjamin, 1935; Trodd, 2015 pp. 14-16). Creating aesthetics is quite common, even in the field of law (Posner, 2000). This sub-section, in accordance with the 2018 Draft Conclusions on the identification of customary international law by ILC (International Law Commission, 2018) is a critical analysis of the following important phenomena-in-issue: • How State Practices are Aestheticized in International Law; • How far the draft conclusions go in determining the evidentiary value of customary international law ‘sources’; • Based on the farther limits manifested in the draft conclusions, how much experience of aestheticization is reflective in public and general international law central {62}


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to the authoritative works of the International Law Commission; Scope of the Draft Conclusions. Conclusion 2, Part II makes it clear that any general practice that is accepted as law, which is called as opinio juris, is put into use to decipher the existence and content of customary international law (International Law Commission, 2018). It also means that Existence and Content (of CIL) are to be assessed separately. Now, to estimate how CIL existed or how CIL seems to be is based on the same opinio juris. That opinio juris, as per Conclusions 3 and 4, must have clear and affirmative ‘regard’ to three things: • The Overall Context • Nature of the very rule in question • Particular circumstances Evidence-in-Question & Conduct of States and International Organizations Only in these three, the evidence-in-question has to be affirmatively discovered. It applies to both, existence analysis and content analysis. Once, the regard is discovered in order, there are two ways only, through which a particular state practice (in the text it is referred as “practice of States” (International Law Commission, 2018)) is affirmed. They are explained as follows: 1. Of the State 2. Of the International Organization(s) Now, both the State & the International Organization related to the “subject-matter” attributable to the evidence in question have to contribute to the formation or expression of the rules of customary international law. It is clearly stated that the conduct of “other actors” is not counted as practice for assessment. However, they may have relevance in order to examine any contributions to form or express CIL rules through the State or the International Organization(s). Conclusion 6 thus becomes important to be scrutinized. The {63}


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following are considered in the same conclusion, suggestively and non-exhaustively, forms of state practice: • diplomatic acts and correspondence; • conduct in connection with resolutions adopted by an international organization or at an intergovernmental conference; • conduct in connection with treaties; • executive conduct, including operational conduct “on the ground”; • legislative and administrative acts; and • decisions of national courts; Also, no predetermined hierarchies exist, which is interesting in terms of determining anything as a mere form of state practice under public international law. The “General” Practice In addition, not all practices would have enough “weight”, so those, which are unique and could get reduced, should be highlighted with special care and attention, as per Conclusion 7. Time is not considered a restrictive parameter in order to assess what is a form of state practice. Now, the “general” practice must be sufficiently (1) “widespread” and (2) “representative”, as well as “consistent”. The term widespread means that on a legal plane of reference, it must be experienced and so, sought in a widespread manner. The spontaneity or specificity of it does not matter at least here. The word representative signifies that it has by conduct show that the state actors were being representative in committing to the general practice. The term consistent simply means that despite its unique, limited and apparent consistency has to be affirmatively determined. Of course, as per Conclusion 9(1), any such general practice must show that the practice has been exercised (and committed to) with a sense of legal right or legal obligation. If legal rights or legal obligations are just not determined, the practice by no means is representative. The terms usage and habit in Conclusion 9(2) show that real use and conduct in ordinary course of action are enough to {64}


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accept practice exercised in legal right/obligation. Evidentiary Value Conclusions 10-16 focus on the schemata of acknowledging the evidence-in-question with certain specific ones already explained in a narrow manner. Any scholarly work, which is mentioned in Conclusion 14 as “Teachings” is by all means, suggestively considered as even a subsidiary means (and not sources) to determine customary international law. Conclusion 10 explains what “wide range” of forms of evidence are suggestively & non-exhaustively considered as evidence-in-question: • public statements made on behalf of States; • official publications; • government legal opinions; • diplomatic correspondence; • decisions of national courts; • treaty provisions; and • conduct in connection with resolutions adopted by an international organization or at an intergovernmental conference; Of course, as per Conclusion 10(2), if a state fails to react over time expectedly, then the “failure to react” may serve as the evidence-in-question in relation with the opinio juris. However, the state as a subject of international law has to be in a “position” to even react & there must exist some contingency to react. If no contingency exists, and the state is not in a position to react, then it is negative to refer the failure to react as the evidence-in-question. How State Practices are Aestheticized. The aestheticization of state practice, in general, cannot be directly pointed out to the way emotions are estimated in law and psychology. The reason is that doing it blurs the direction towards which the enquiry on this issue undergoes. The aestheticization of any thing that classifies itself as a state

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practice subject to Conclusions 8-10 can be based on Conclusions 2-4 (International Law Commission, 2018). Now, the element of using aesthetics with a sense of legal right/obligation may or may not have to do with fictional sovereignty and the individualization/collectivization of sovereign equality (refer to Sections 4.4 & 7) because both of them are subject to whether the aesthetic experience was systemically or specifically designed to determine whether the same is a general practice or not. This is a big reason why states do not assert everything their representatives do as opinio juris under customary international law, and the trajectory to grow in CIL generally steepens. Even the 2018 Draft Conclusions are made by an international organization, which is ILC. Representatives from the states are elected in the ILC every year, and they contribute to the text. The same happens in the case of Advisory Opinions, but in a different way. When the Nuclear Weapons Advisory Opinion (International Court of Justice, 1996) was expected of the International Court of Justice, various UNGA members had submitted their positions on the Advisory Opinions considering the contentiousness of the matter. Now, by default, the Conclusions make it clear that even an international organization can contribute to the formation and expression of the rules of customary international law. It is thereby worth concluding that by adopting fictional sovereignty, by focusing more on aesthetics, policy, narratives and diplomacy, countries whether due to the imperialist structure of the international organizations, or by their pragmatic/habitual/utilitarian means of yielding sovereign equality by shaping their “national interests” – steepen the trajectory of the development of customary international law. The Phenomenological Learning of Aesthetics Based on State Practices in Public and General International Law. It is understandable that fictional sovereignty and policyrelated instrumentalism (based on consequentialist {66}


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approaches adopted by countries is very much deterministic of how they themselves are involved in creating phenomena not through direct positivist or hard policy measures, but are using the softer components. This is in general quite seen in various international organizations, where the diplomats from either the countries or the international organizations utilize “ideology” or any identity as a tool to shape policies and international legal developments. This was evidently observant in the Universal Declaration of Human Rights, 1948 (Willmott-Harrop, 2003) and the two International Covenants of 1966 (ICCPR & ICESCR). In constitutional law, this is unusually seen when preambles are drafted for the treaties or basic laws of constitutive nature (Orgad, 2010 pp. 714–738). This also shows that the rules-based international order, and the international law system, in light of the transformation of customary international law, must be estimated in the following ways: • The speed of transition from imperialist/colonial/archaic models of governance of the intergovernmental organizations and its referentiality; • The individualization and collectivization of sovereign equality yields through an interface of strategy analysis; • The layers of various primary and secondary indicators & representations of exercised fictional sovereignties ascribed by countries (and their indirect state actors); • The subsidiary role of non-state actors only to the extent that they contribute to the scheme of fictional sovereignties;

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8 Courts and their Methodologies on Shaping the Course of CIL

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Courts while formulating reasoned judicial decisions have contributed significantly to the growth and development of CIL. Decisions of courts and tribunals are an indirect source for interpreting the various components of CIL. Article 38(d) of the ICJ statute describes courts as a subsidiary method for the determination of the state practice (International Law Commission, 1950). Whilst the approach taken by the ICJ in the Fisheries case (International Court of Justice, 1951 pp. 1, para. 33), states that the role of the courts is to discern the existence of the principles of customary international law and within these powers, it does not include the power to formulate the principles of CIL. This approach was broadened further in the case of Nuclear Weapons Advisory (International Court of Justice, 1996) opinion (para. 18), where the court stated that in the application of the law, it can also examine the scope and trends over the course of years. Thus, it has a cumulative effect of crystallizing various progressive and emerging principles of customary law and substantial role in influencing state practice and their behaviour. In the case of Nicaragua (International Court of Justice, 1986 p. 177), ICJ decided that treaties and customs can co-exist with one another, and a dispute can seek its application from both the customs and treaties. The court examined a portion of the customary law principle i.e., the use of Force under the UN charter and the right to self-defense. The courts opined the view that Article 51 poses an inherent right of the state to resort to the usage of arms when they are under an attack, and this is already an existing right of the state, and this rule and principle was merely confirmed by the UN Charter. Though the epistemological content within the Treaties and Custom might principally be similar, Article 51 of the charter remained silent on certain substantial elements of the natural right of the usage of force. It did not include the features of an armed attack or the definition of what constitutes an armed attack. Therefore, the court concluded that the customary principle and treaty law could exist parallelly and the customary rule would still hold its validity due to its difference in content and application. Further, the treaties while adopting the principles of Customary law should

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possess the characteristics of a norm which has created the rule that would formulate the general rules of law that can be made applicable to states regardless of whether it is a part of the treaty. Even though the International legal systems do not embrace the concept of stare decisis, judicial decisions have an element of duality with reference to Customary law where they could be responsible for providing state practice under Article 31(1)(b) and is considered as a subsidiary method for determining the rules of law. ICJ decisions assist solidifying the existing substance on customary international law. It ascertains the customary law and provides evidentiary value in determining the principles of CIL. Thus, it decides by laying down the principles and norms and decides upon issue by law and its usage can be persuasive for any controversy that might arise prospectively in determining the principles of CIL (Mendelson, 1998). The Courts duty particularly, the ICJ is to identify and confirm the new norms that are developing or emerging that should be considered while dealing with various cases. In the case of Gabcikovo-Nagymaraos Project (International Court of Justice, 1997), ICJ dealt with various evolving environmental norms that falls within the ambit of sustainable development and new standards which need to be analyzed and contemplated for the application of the customary norms to any case. As the ICJ has enumerated it, the concerned acts should not only be a practice, but the evidence should also support the fact that this practice is given the sense of a legal duty in adhering to this state practice. Sir Jennings (Jennings, 1992 pp. 240-244) in his statements towards representatives present at the Proceedings of the 1992 UN Conference on Environment and Development, that the fundamental duty of the ICJ in identifying the various sources of rules and principles that have crystallized the customary international environmental law stated that it includes identification of well-established principles and rules and whether the content within the multilateral treaties have developed transformed from contractual duties into the rules of customary International Law. {70}


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9 Soft Law and its Relationship with CIL

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Soft law is a part of both public and private international law, of course, through indirect means, as the term suggests, it is not conceptually even of any positivist and binding nature. Generally, soft law are penetrable practices, or intentioned/unintentional yet indicative ascertainments which are tactically adopted by countries, and sometimes, even international organizations to generically shape the trajectory of any governance faction, or any matter of proceduralism. Soft law is a policy tool, which can be used to enable any norm creation or validation and perhaps, acceptance, legally or unofficially, but through indirect means, which must have some phenomenological control on the coherencies of the existent legal systems not through a top-todown law adherence approach, which classically relates to legal positivism. Instead, it enables change by softening the traditional and hegemonic leverage of hard laws by shaping their key factors and perhaps stakeholders’ interests, in order to either subvert or transform the purpose of the very hard law mechanism without even any direct top-down intervention. Soft law is very much seen in the domains of international technology law and international commercial law. For the purposes of this chapter, the relationship of soft law with CIL is thereby assessed in the following sub-sections: • Degradation of the Qualitative Purpose of Hard Law and the Malfunctioned Adherence of Norms • The Shift from Human Legal Positivism to Non-Human Tools of Regularization • Self-Regulation by Private Actors • Cultural Intelligence and Soft Law In order to give some proper context, in accordance with the 2018 Draft Conclusions by the International Law Commission (International Law Commission, 2018), the role of soft law can be estimated as (1) of subsidiary and of less legally binding nature; and (2) of consultative, perpetuating and alternating nature. It also means that even if anything estimated as soft law (since by clear understanding, soft law is a policy {72}


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phenomenon, and not even a construct of hard law systems – like for e.g., emanated from a treaty, regulation or a statute) and is non-binding, it definitely will have policy implications, and can be proposed of duly consultative maneuvers. In addition, soft law perpetuates, and in most cases, transforms and evolves under linear/cyclic consequentialist trajectories. Finally, soft law alternates with time and space, because it has more design freedoms than hard laws, since most hard laws are restricted by the rules and methods of interpretation. In the realm of international law, the same rules can be perpetuated through the international organizations (intergovernmental and others), like for example, the works prepared by the International Law Commission and the International Commission of Jurists. In the realm of soft law, how influence in policy and practicalities happen matters, and not the question whether the law itself is even binding. Also, when it means that soft law is not even a law, it means simply that it is not a binding act of the state or has that much legal binding value from a top-down aspect like any judicial, executive, legislative or other body can impart. 9.1

Degradation of the Qualitative Purpose of Hard Law and the Malfunctioned Adherence of Norms

Hard law itself has transformed significant in various ages and time references. Even public international law in any form possible is being designed to convert its value into that of a hard law. Treaties represent the contractual relationship of two or more state parties. ICJ judgments do not necessarily envision common law systems of precedent and ratio-obiter, and the binding value of certain specific legal documents like resolutions, reports, communiques etc., depends from organizations to organizations. Thus, by the design and default features of an international organization, hard international law also thrives accordingly. Now, in the recent years in the 21st century, there are many ways, through which instruments of hard international law are being carefully avoided, by countries and even {73}


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international organizations. Since, the role of corporate nonstate actors such as multinational and indigenous companies and civil societies cum NGOs has significantly increased postglobalization, the information age has led the states to take a backseat, which means liberalize and let the corporate nonstate actors behave accordingly. The G7 in 2021 proposed for enabling 15% global minimum tax rate for companies (Shalal, et al., 2021). GONGOs organized by China play an important role in Africa (Brenner, 2012). Even startups and cultural diasporas play important role in shaping the implementation of hard laws and regulations. The rise in self-regulation among countries is also not worth ignoring. For example, most of the hate speech regulation guidelines drafted and put into public by companies like Facebook, Twitter, Instagram and others are majorly inspired by EU Law, and not the US Constitution’s First Amendment Rights and American jurisprudence, especially Brandenberg v Ohio, for example (Supreme Court of the United States, 1969). Even the GDPR as discussed previously, reflects the EU’s regulatory sovereignty. Now, the geographic extent of the regulation applies to any country in world, whose entities are processing the data subjects, provided that they are EU citizens. Even due to fictional sovereignty and the individualization/collectivization of state sovereignty, it becomes clearer that since various degrees of resistance, disagreements or virtual opposition may be expressed and put into use tantamount to certain state(s)’ interests, it becomes important for countries to adopt measures that are indirect and influential. The GDPR however is a hard law approach because it forces countries and non-EU entities of any sort to design their infrastructure the way it complies with EU, subject to market influence. Of course, companies have also figured loopholes within the framework. For example, right to erasure, in accordance with the 2019 European Court of Justice case against Google (European Court of Justice, 2019), does not emanate global application due to the GDPR. It simply means that Google does not need to protect right to erasure or the right to be forgotten globally except within the {74}


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EU. This eventual degradation of hard law does not mean the end of hard international law or hard law at municipal levels in various states anyways (unless exceptions come in). It just means that the nature of enforcing laws is changing, and diffused measures of soft law have more intrinsic and penetrable cum unforeseen potential to shape policy targets and subjects quite swiftly. 9.2

The Shift from Human Legal Positivism to NonHuman Tools of Regularization

Human-legal positivism is based on the command theory of law, or the Austinian notion of sovereignty (dispositivum). Aestheticization of hard law (refer to Section 7.2) is an apparent reality and has been achieved by polities for centuries. However, aestheticization by design also is reflective of the intelligibility of the political and administrative elites, who shape the polity itself. If aestheticization is too much scattered and unclear, like pretending that linear approaches are cyclic (refer to Section 7.1), while by design they are not, then it does not direct the subjects of the polity, i.e., its people, reasonably. Such failures were observant in Soviet Union, The third German Reich and former imperial systems of governance. Even the United States and China suffer from their own aestheticization. The United States has to resolve issues with its international law and responsibility to protect (Bellamy, 2011) approach, while China’s protection and preservation of human rights qualitatively, is not getting practical and reasonable (Government of the United States, 2021). Like the human rights generations approach does not do better to rightscentrism, human legal positivism, due to inevitable reality that human administration is not perfect, is failing, and being replaced by aestheticized practices that either cover up the practices, or maybe indicate how they function. It does not mean that the imperfection of legal positivism implies the end of any fair and reasonable system or of democracy or liberties anywhere, because it is again, a consequentialism issue. When {75}


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there are random circumstances, countries have to act reasonably. If it fails to happen, then problems emerge as usual, leading to short-run realizations that the human system is failing. However, just because human imperfections exist, a better approach to deal with the failures of human positivism is by making them in a cyclic consequentiality. Doing that makes the stakeholders abled to develop both linear and cyclic approach, by virtue of experience with cyclic policy approaches. This is why it is proposed that the draft conclusions by the International Law Commission (International Law Commission, 2018) are better to be considered of consultative nature, in order to render steeper and stable transformation of customary international law. Also, not every act of fictional sovereignty or individualization/collectivization is unreasonable. The concept of persona ficta can be more efficient than legal positivism in solving global, transnational, international, national and local problems, since they need some approaches of research designs. 9.3

Self-Regulation by Private Actors

Private actors are way capable in enabling acts of selfregulation. By primary understanding, self-regulation is one of the most common soft law methods. Self-regulation includes the following: • Checking where individualization and collectivization or the aestheticization (like states do), can be done by companies and other entities. The former applies to real hard policy issues while the latter mostly allies with soft policy issues or merely management, marketing and other related soft fields; • Identifying parameters which crystallize economic and other dimensions of policy and governance in favour of the persona ficta or the individualized/collectivized “factions”; • Creating artificial or driving natural economic and other dimensional conditions to influence the state to adopt {76}


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regulatory approaches in line with the same developments, or prevent the state from adopting it; • This step may be an over-stretch, but it depends: undermining or participating in the space of sovereignty and governance of the state, directly or indirectly by privatizing public law adherence and enforcement and strengthening private law; • Even if the previous step is not adhered, since it is not necessary to undermine or take away some sovereignty, self-regulation validates the political and moral capital of the entities who fictionalized or individualized/collectivized specific policy approaches; Please note that self-regulation can be enabled in many ways possible. Some of the example-based illustrations are provided below: • Through company directives, guidelines and other disciplinary documents enforceable within and throughout certain entities; • Through disruptive and regulation technologies (this is a very new way of handling actually); • Treating the sporadic and ambushed policy realities with a risk-based approach if the state is incapable of handling it; • Privatization of state entities and government administrations (private cities, PSUs being privatized, etc.,); • Cross-border evasion of transnational and local regulations through factors of influence; • Collaboration with international organizations regionally; • Activities of trade unionism, like strikes, lock-outs and other physical and digital unionist activities; It is assumed that due to rise of artificial intelligence and other disruptive and regulation technologies, self-regulation can be automated. To some extent, in fields like commercial law, it is possible. However, technology’s disruptive and regulatory transformation in decades does not lead towards the {77}


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beginning of soft law. Soft law and its bi-product, selfregulation have existed even through practices of aestheticization and individualization/collectivization, which again, can be found in the way how social mobility is achieved, and how identity and other forms of politics are assessed. These things do not generally count in the development of CIL Rules. However, self-regulation through advanced means including technology should be suggestively and subsidiarily counted under customary international law, surgically. 9.4

Cultural Intelligence and Soft Law

Cultural intelligence involves activities of leadership and conviction. They relate to soft law, since in the domain of selfregulation, cultural intelligence involves how thought and design leadership can be applied on various stakeholders. It is definitely based on the psychological capabilities of the leaders who involve in dealing with cultural intelligence, since that diversifies with time and creates space for protection/isolation accordingly. If a clear analysis of the draft conclusions (refer to Section 7.2) is done, then with respect to cultural intelligence, it can at least be concluded that cultural intelligence in many ways reflect how openended and close-ended the privatization of the rules-based international order is possible, and so, the strengthening of private law. Of course, they cannot be included bluntly and plainly in customary international law. Still, if properly assessed, much can be achieved, since cultural intelligence has a lot to do with innovating mechanisms of dispute resolutions in the coming future.

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10 Conclusions and Recommendations

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Here are the following conclusions and recommendations affirmed: • There should be due care in assessing the fortified and constructed emerging and disruptive principles of customary international law considering the information age and its vulnerabilities; • Fictional sovereignty is a novel and innovative tool to deal with and transform global governance, and can be used to avoid colonial/imperialist practices from other countries; • The growth of customary international law will steepen in most public law domains, which are getting more aestheticized with political and other elements; • The ILC 2018 Draft Conclusions on the identification of customary international law is the best way to ensure the development of a Customary International Law Index, considering its ability to connect transitional realities of international law of this century and of the post-1945 era; • Individualization/collectivization is not problematic, and if the role of international organizations is getting bigger due to any whatsoever reasons, then state sovereignty on a technical basis, should not be undermined and diluted. However, in the information age, states should avoid using coherentist arguments, which are too much positivist and not in line with the present realities; • Sovereign equality under international law, technically, is a reasonable concept, and must be enhanced with better tools of yielding sovereignty; • The Global South countries must avoid the third world approach to international law and develop un-polarized methods of international law and global governance, which are decolonial and in line with a much cyclic and evolutionary dimension. Linear approaches in TWAIL will only damage the concerns raised by the Global South countries even with respect to matters of CIL; • The role of soft law is going to be indirect and influential. It is therefore needed that their subsidiarity in CIL is accepted but still at a suggestive level. The understanding {80}


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of self-regulation must not be severely limited to the capacity and design of disruptive technologies like artificial intelligence;

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