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Global Relations & Legal Policy VOLUME 1 (2020)

EDITED BY ABHIVARDHAN & AMULYA ANIL © Internationalism - AbhiGlobal Legal Research & Media LLP


Global Relations and Legal Policy Volume 1 (2020)


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Global Relations and Legal Policy, Volume 1 (2020)

Editors: Abhivardhan, Amulya Anil. ISBN: 979-86-6502-892-7 (Paperback) ISBN: 978-93-5407-220-8 (Online)

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 non-commercial 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, Volume 1, 2020. Price (Online): 350 INR Price (Paperback): 10 USD AbhiGlobal Legal Research & Media LLP, 8/12, Loyal Road, Mayo Hall, Civil Lines, Allahabad, Uttar Pradesh, India - 211001 The publishing rights of the papers published in the book are reserved with the respective authors of the papers and the publisher of the book. The copyright of all the papers are reserved with the authors of the respective papers. For the purpose of citation, please follow the format for the list of references as follows: 2020. Global Relations and Legal Policy. Prayagraj (Allahabad): AbhiGlobal Legal Research & Media, 2020. 979-866502-892-7, 978-93-5407-220-8. You can also cite the book through citethisforme.com (recommended). For Online Correspondence purposes, please mail us at: global@internationalism.co.in research@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 Global Relations and Legal Policy is a special edited book published by the team of Internationalism Editorials. The book is a special coverage of policy papers, international law and relations anthologies and briefs by our Research Editors and in short, is a collection of novel ideas and propositions which researchers, editors and interns at Internationalism do make. We have also published some of the miscellaneous works on International Law and Relations in this Volume. We believe the Discussion Papers are special proposals that have been accepted for the purpose of academic scholarship and open & rational discussion, and thus we do not claim any of the content enumerated in the book as a resemblance to the values and ideas of Internationalism and the Editors involved in the process. We would like to express my deepest gratitude to the members of the Global Legal Innovation Advisory of Internationalism and our Core Team for their support in making the editorial process possible.

Abhivardhan Editor

Amulya Anil Editor


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Table of Contents Indian International Law Series. 1. Indo-Russian Relations: The Vladivostok Developments and their Reasonable Underpinnings Vasu Sharma & Manohar Samal 2. Should India join the Inter-Parliamentary Alliance on China? Arpan Chakravarty, Pratham Sharma & Manohar Samal 3. Indo-African Multilateralism: A 2020 Insight Manohar Samal 4. India’s Foreign Policy Avenues towards a Multipolar West Asia Vasu Sharma. 5. Threat of Israeli Annexation over Palestine and the Indian Position Manohar Samal. 6. India-Bangladesh Relations: Future Underpinnings and Understandings Akash Manwani 7. Analysis of India’s Joint Ventures with UNOPS to Achieve Sustainable Development Goals Mugdha Satpute & Ridhima Bhardwaj Discussion Papers and Research Articles. 8. Resolving the Jurisdictional Issues of International Courts and Tribunals Manohar Samal. 9. Manifestation of the Rules of International Humanitarian Law in Outer Space Governance Pratham Sharma. 10. The Dysfunctionalities of International Investment Law: An Unoffending Attempt at Balancing Investor Rights and Obligations


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Akash Manwani 11. An Examination into Managing the Plight of Migrant Workers in India during the COVID-19 Quarantine and Beyond Arpan Chakravarty & Anubhav Banerjee 12. The Nascency of Good Governance: Community Policing in the Contemporary India Pranay Bhattacharya & Akshat Mall. 13. The Right to Have Political Voice: Situating the Right to Political Participation of National Minorities under the UN and Council of Europe Human Rights Regimes Amin Labbafi. 14. Relevance of the Exception of Political Offense in the Extradition Matters in the 21st Century Padmja Mishra. 15. Analyzing the Viability of ADR in Settling Maritime Boundary Disputes Around the South China Sea Avishikta Chattopadhyay. 16. Doctrine of Clausula Rebus Sic Stantibus in International Law and its Relevance in the Contemporary World Pragya Sharma. 17. Analysing the Veto Power of the United Nations Security Council Dhanya Visweswaran.


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Indian International Law Series Special Anthologies and Works on Indian Foreign Policy and its International Law Perspectives from our Researchers and Analysts Internationalism.in/iilp


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Indo-Russian Relations: The Vladivostok Developments and their Reasonable Underpinnings Vasu Sharma1 and Manohar Samal2 1

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Junior Research Analyst, Internationalism C/O AbhiGlobal Legal Research & Media LLP 2 Research Analyst, Internationalism C/O AbhiGlobal Legal Research & Media LLP vasu@internationalism.co.in; manohar@internationalism.co.in;

Introduction and History of Indo- Russian Relations

Diplomatic relations between India and Russia have withstood the test of time and have been strongly based upon a strategic partnership that has encompassed mutual benefit, mutual cooperation and mutual trust (Embassy of India, 2017). In the immediate post- independence period, India’s heavy industry development was directed towards self- sufficiency and Russia played an extremely vital role in aiding India’s establishment of heavy industries in the energy production, steel, heavy machine building and mining (Embassy of India, 2017). However, the relations between India and Russia did not begin blossoming before the 1960s and 1970s (Unnikrishnan, 2017). In August 1971, the Treaty of Peace, Friendship and Cooperation was signed between India and the Soviet Union which intended to strengthen a plethora of factors for increasing cooperation, friendship and peace in the fields of art, literature, education, science, press, radio, public health, cinema, television, sports, tourism and also formed a military alliance keeping in mind territorial integrity and internal sovereignty of both the parties (Ministry of External Affairs, 1971). However, after the Soviet Union was dissolved, a new Treaty of Peace, Friendship and Cooperation was signed between Russia and India in 1993 and a MilitaryTechnical Cooperation bilateral agreement was signed in 1994 (Embassy of India, 2017). This eventually led to the Russian President’s visit in the year 2000 and the signing of the Declaration on Strategic Partnership Between the Republic of India and the Russian Federation (Ministry of External Affairs, 2000). Although there has been many differences witnessed in political and global interaction strategies of India and Russia, since the year 2000, Indo- Russian relations have transformed to achieve huge progress in military- technical cooperation, science and technology advancements, economic bonds and resilient cultural links. The reason for such cordial diplomacy between the two nations is due to the shared vision of both the countries in creating a polycentric and multipolar international order (Unnikrishnan, 2017). It is indeed undeniable that India’s foreign policy changed after 2014 and the strong ties between India and Russia transcended after the year. This is because over the span of time, strong political relations between India and Russia have resulted in 19 annual summits since 2000, Russia pushing for India’s membership in the Shanghai Cooperation Organisation and regular interaction between the two countries through the Inter- Governmental Commission on Military Technical Cooperation. The Strategic Vision for Strengthening Cooperation in Peaceful Use of Atomic Energy was signed between India and Russia in 2014 and the Partnership for Global Peace and Stability was agreed upon by the two nations in 2016 (Kapoor, 2019). The Indian Prime Minister was also awarded the highest State honour of Russia known as the “Order of St. Andrew, the Apostle” in 2019, for promoting privileged


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strategic partnership between India and Russia (Chaudhury, 2019). Furthermore, strong economic ties have resulted in signing of the Druzhba- Dosti 2014 Joint Statement and a trade of up to 10.17 Billion US Dollars or INR 7.72 lakh crores in 2017 alone. Defence deals valuing up to 13,62,00,00,000 US Dollars or INR 10.34 lakh crores in the 2018-19 period (Kapoor, 2019). 2

The Vladivostok Connection

In September 2019, the Eastern Economic Forum was held at Vladivostok where India was invited as a special guest to enhance economic development in the Russian Far East and many Memorandum of Understandings were signed (Vasudevan, 2020). Only a few aspects were decided as the agenda which included digital approach in connectivity, investment in gold and diamond industries and cooperation in energy. The invitation increased India’s chances of increasing overseas assets through joint ventures and public sector undertakings which would prove to be economically resourceful. Before the Eastern Economic Forum, India’s presence was highly in only the Central and Northwest regions (Vasudevan, 2020). India’s underperformance or non- performance in the Russian Far East was due to the collapse of relations between India’s public sector undertakings with Russia (Vasudevan, 2020). Although the Russian Far East region contains a vast amount of natural resources, very few means to attain exploitation of such resources exist. There are transport connectivity issues which pose a significant problem as the distance between destinations are long with inhospitable and permafrost terrain. Moreover, limited means of transport and extremely poor internal communications add to the larger problem (Lavrent’ev, 2017). Issues of human resources also exist since the population in the region seems to be continuously declining leading to poor labour supply (Vasudevan, 2020). Investments in the Russian Far East region began at a large scale after 2012 and few partnerships with China were also developed in this respect, but after the accession of Crimea to Russia in 2014, the United States of America and the European Union imposed sanctions on Russia which led to falling revenue, declining prices of oil and natural gas, decrease in foreign investment and harm to the overall Russian gross domestic product (GDP) (Vasudevan, 2020). However, since India had a change in Government and foreign policy after 2014, India’s increased presence in the Russian Far East continued in the oil, natural gas, diamonds and tea industries. Therefore, India was invited to be the chief guest in the September 2019 Eastern Economic Forum by Russia to foster investments in the energy and extractive industries sector of the Russian Far East region (Vasudevan, 2020). Investments by various companies such as Jay Tea, Sun Group, KGK Group, Tata Power and Oil and Natural Gas Corporation Videsh Limited has been witnessed in the Russian Far East region since after the year 2014 (Vasudevan, 2020). Although this may be the case, from 2014 to 2018, the overseas direct investment by Indian companies has only been at a low 2% in Russia compared to Mauritius, Singapore and the United States of America which stands at 20%, 20% and 14% respectively (Vasudevan, 2020). The Vladivostok connection in Indo- Russian relations has led to the signing of various Memorandum of Understandings between India and Russia for the development and enhancement of various sectors in the Russian Far East region. Three prominent sectors of investment were aircraft production and assembly, mining and education. This is evident by the agreements between Bharat Earth Movers and Yakovlev Design Bureau for the promotion of indigenous production and assembly of aircrafts, Far East Mining Company, State Trading Corporation of India Limited, Minerals and Metals Trading Corporation of India Limited, National Mineral Development Corporation, Steel Authority of India


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Limited and Khanij Bidesh Limited for mining and mineral exploitation, and finally in the education sector, Amity University, Indian School of Business Management and Khemka’s Educational Foundation with the Skolkovo Foundation and other educational bodies in the Russian Far East (Vasudevan, 2020). A one billion dollar line of credit was also declared by India for the Russian Far East region (Roche, 2019). However, the poor knowledge of Indian ventures and officials about the situation and business environment in the Russian Far East Region and overarching control of the Russian Federation of business activities and investments originated from India to benefit the Russian Far East region could pose few issues in the process (Vasudevan, 2020). But, after the outbreak of the coronavirus pandemic, the Russian Far East region has enabled its population to order and avail themselves essential items from India and this could be seen as an upside in the Vladivostok connection in Indo- Russian relations (Vasudevan, 2020). 3

The Geo-politics of the Vladivostok Event

Putin’s “Pivot to East” was immediately complemented by New Delhi’s extension of “Act East Policy” to “Act Far East Policy”. The 1960s saw a rift between Soviet-Sino relations. This resulted in the rapprochement of Washington towards Beijing. Subsequently, the 1971 Indo-Pak war, which was ought to become a projection of geo-political power and alliance, was averted by the Treaty of Friendship and Cooperation between India and USSR. According to Article VIII of the treaty, “[I]n accordance with the traditional friendship established between the two countries each of the High Contracting Parties solemnly declares that it shall not enter into or participate in any military alliance directed against the other party” and according to Article IX of the treaty, “Each High Contracting Party undertakes to abstain from providing any assistance to any third party that engages in armed conflict with the other Party. In the event of either Party being subjected to an attack or a threat thereof, the High Contracting Parties shall immediately enter into mutual consultations in order to remove such threat and to take appropriate effective measures to ensure peace and the security of their countries” (Ministry of External Affairs, 1971). These articles of the treaty have proved to be a turning point in 1971. This treaty was precedent to the natural alliance between the United States of America, Pakistan and China. The duo of Richard Nixon and Henry Kissinger (then President of US and Secretary of State) denied any support to India in the situation of war. Moreover, Nixon was the first US President to visit Beijing, post 1945. Furthermore, the presence of 74 US Navy Task Forces, deployed to Bay of Bengal by the Nixon Administration posed a threat to the geo- strategic position of India in the 1971 Indo-Pak War (Mahfuz, 2020). Vladivostok played a central role at this juncture, when USSR sent nuclear armed submarines of its pacific fleet located at Vladivostok. Hence, the hard-edged realistic position of the Indian Prime Minister at that time, Indira Gandhi proved to be successful to avert any trilateral alliance of Pakistan, China and the United States of America against India. This instance is not wholly applicable in the current multipolar era of international order. United States of America and China have already been in a trade war, while the bonhomie China and Pakistan still prove to be a geo-political threat to India, especially to the Indian territory of Jammu and Kashmir and Leh– Ladakh. However, Indian presence in Vladivostok, Memorandum of Understandings between Moscow and New Delhi and as well as a five Minister delegation under Piyush Goyal, the Minister of Commerce and Industry at that time (Chaudhury, 2020) ensured escalation of Indo-Russian ties amidst Beijing swaying exSoviet Central Asian countries. Moreover, China is like a canary in a coal mine for Russia as it also apprehends “Chinese demographic invasion” through the influx of Chinese


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migrants in the far-east (Chellaney, 2020). Hence, the presence of Indian public sector undertakings as a geo-economic arm could contend any Chinese presence in the Russian Far East. Hence, the Vladivostok connection can become the new centre of Indo-Russian relations. Prime Minister Modi’s visit to Eastern Economic Forum in September 2019 was preceded by a five chief minister delegation to Russia under the Minister of Commerce and Industry, viz., Piyush Goyal. However, New Delhi aimed at Vladivostok as a strategic port and evidence of this can be dated back to July 2018 when the Foreign Minister of that time, viz., Sushma Swaraj visited Russia to plan a new maritime cargo route from Chennai to Vladivostok (Chaudhury, 2020). Till that time, Indian goods take up to 40 days to reach Russian Far East via Europe but due to this proposed maritime route, Indian goods would then only take up to 24 days to reach Pacific port of Vladivostok. New Delhi seemed to be pensive about Chinese Maritime Silk Route and One Belt One Road and therefore, to indulge with Russian Far East port in Pacific can be seen as an important strategy to counter the hegemonic Red Dragon in the region. If connected well through Japan, and the INSTC (International North and South Trade Corridor) this new maritime trade route from the Gulf of Oman to Lord of The East, India could possibly challenge the Chinese One Belt One Road initiative. However, this whole process would have to go through ebb and flows. A concrete plan to connect Chennai to Vladivostok is yet remaining. 4

Conclusions

The geo-politics of Asia will surely be determined by the power sharing of four Asian giants i.e. India, Russia, China and Japan. The US poses as a foreign intervenor in the region, but plays an important role in geo-politics of Asia due to its presence in Pacific region. The recent demand of the current President of the United States, viz., Donald Trump to induce Russia and India into G-8 countries can surely be a challenge to China in Asia. Although these four countries converge on hardly few interests, any proximity between the four could challenge the Chinese hard-edged aggressive expansion policy along South Asia, East Asia and West Asia and Eurasia. However, amidst the pandemic, such ventures and alliances between countries seem to be difficult. The current Indo-Russian diplomatic relations are defined through ‘geo-strategic’ and ‘geo-economic policies’. The new chapters in trade and investments between Moscow and New Delhi, for developing Vladivostok would not only benefit India and Russia, but also hold the potential to change the geo-politics of East Asia. References 1. Chaudhury, Dipanjan Roy. “Chennai- Vladivostok Sea Route: India’s Effort to Counter China’s OBOR Could Soon Get a Big Russian Helping Hand”. The Economic Times. (12 July 2018). [online]. [15 June 2020]. Available from: <https://economictimes.indiatimes.com/news/defence/chennai-vladivostok-sea-route-tomake-it-near-east/articleshow/60486508.cms>. 2. Chaudhury, Dipanjan Roy. “Russia Awards PM Narendra Modi With Highest State Honour”. The Economic Times. (12 April 2019). [online]. [14 June 2020]. Available from: <https://economictimes.indiatimes.com/news/politics-and-nation/russian-award-for-pmnarendra-modi/articleshow/68848666.cms?from=mdr>. 3. Chaudhury, Dipanjan Roy. “Commerce Minister Led- CM Delegation Generates Business opportunities in Far East Russia.” The Economic Times. (13 August 2019). [online]. [15 June 2020].


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Available from: <https://economictimes.indiatimes.com/news/economy/foreigntrade/commerce-minister-led-cm-delegation-generates-business-opportunities-in-far-east-russia/articleshow/70662734.cms>. Chellaney, Brahma. “Asia’s Geopolitical Chessboard is Witnessing a Power Shift.” The Hindustan Times. (30 August 2019). [online]. [15 June 2020]. Available from: <https://www.hindustantimes.com/columns/asia-s-geopolitical-chessboard-is-witnessing-apower-shift/story-0RLhxPUYhdwsZTPBEGDSyK.html>. Embassy of India, Moscow (Russia). “Ambassador Pankaj Saran’s Visit to Chechnya Republic”. Embassy of India, Moscow (Russia). (2017). [online]. [14 June 2020]. Available from: <https://indianembassy-moscow.gov.in/70-years-of-india-russia-relations-a-historicmilestone.php>. Kapoor, Nivedita. “India- Russia Ties in a Changing World Order: In Pursuit of a ‘Special Strategic Partnership’”. Observer Research Foundation: Occasional Papers. (22 October 2019). [online]. [14 June 2020]. Available from: <https://www.orfonline.org/research/india-russia-ties-in-achanging-world-order-in-pursuit-of-a-special-strategic-partnership-56877/>. Lavrent’ev, A.V. “Razvitie Transporta Na Dal’nom Vostoke Rossio V Usloviakh Obshchestvennogo Reformirovaniia: Seredina 80-x Godov – Nachalo XXI Veka,” Avtoreferat Kand. (2017). Mahfuz, Asif. “US Fleet in Bay Of Bengal: A Game of Deception”. The Daily Star. (15 December 2013). [online]. [15 June 2020]. Available from: <https://www.thedailystar.net/news/us-fleetin-bay-of-bengal-a-game-of-deception>. Ministry of External Affairs. “Declaration on Strategic Partnership Between the Republic of India and the Russian Federation”. Ministry of External Affairs, Government of India. (03 October 2000). [online]. [14 June 2020]. Available from: <https://mea.gov.in/Images/pdf/DeclerationStrategicPartnership.pdf>. Ministry of External Affairs. “Treaty of Peace, Friendship and Cooperation Between the Government of India and the Government of the Union of Soviet Socialist Republics”. Media Center: Ministry of External Affairs, Government of India. (08 August 1971). [online]. [14 June 2020]. Available from: <https://mea.gov.in/bilateral-documents.htm?dtl/5139/Treaty+of+>. Roche, Elizabeth. “India Announces $1 Billion Line of Credit to Resource Rich Russian Far East”. Livemint. (06 September 2019). [online]. [14 June 2020]. Available from: <https://www.livemint.com/news/india/india-extends-1-billion-line-of-credit-fordevelopment-of-russia-s-far-east-1567674855140.html>. Unnikrishnan, Nandan. “The Enduring Relevance of India- Russia Relations”. Observer Research Foundation: Issue Briefs and Special Reports. (25 May 2017). [online]. [14 May 2020]. Available from: <https://www.orfonline.org/research/the-enduring-relevance-of-india-russiarelations/>. Vasudevan, Hari. “India’s ‘Look Far East’: The Vladivostok Moment in Indo- Russian Relations”. Observer Research Foundation: Occasional Papers. (May 2020). [online]. [14 June 2020]. Available from: <https://www.orfonline.org/research/indias-look-far-east-the-vladivostok-moment-inindo-russian-relations-66765/?amp>.


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Should India join the Inter-Parliamentary Alliance on China? Arpan Chakravarty1, Pratham Sharma2 and Manohar Samal3 Research Mentor, Internationalism C/O AbhiGlobal Legal Research & Media LLP Research Member, Internationalism C/O AbhiGlobal Legal Research & Media LLP 3 Research Analyst, Internationalism C/O AbhiGlobal Legal Research & Media LLP arpan.chakravarty@law.christuniversity.in; 1

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The relationship between China and the Western Bloc has been dynamic over the past few years. Ever since the advent of Donald Trump, the United States of America, one of the major players in the Western Bloc, has adopted a crystal clear stand towards their counterparts in the East. China has been considered as a threat not only to its national security, but also to its ideology. The United States of America has described the Chinese ideology as a threat to its democratic ideals based on freedom of the highest order and is also adamant on taking down this Chinese threat and has gone as far as declaring a trade war on them. While it is the United States of America who has the most aggressive stand towards the Chinese, it would not be wrong to infer that a similar feeling is prevalent among parliamentarians across the entire Western Bloc. In an attempt to further tackle the Chinese threat, eighteen parliamentarians from the United States of America, few European nations, the United Kingdom, Australia, Japan, Norway, Canada and Sweden (Swarajya, 2020) have come together to form a cross country alliance known as the Inter- Parliamentary Alliance on China (Chaudhury, 2020). The alliance is formed with a view to promote fairness in trade, upholding human rights, protecting national sovereignty and complementing security strategies. Specifically, the Alliance aims to adopt a strong strategy and stance against the Chinese Communist party explicitly for their moves on Hong Kong and the handling of the coronavirus outbreak in the early stages. In addition to these two stated goals, the Inter- Parliamentary Alliance on China is also expected to coordinate a stance with an aim of improving the human rights situation in parts of China. The Chinese oppression on the Uighurs has been widely criticised in the western media and the United States have even brought forward a legislation on this particular issue. These issues have been focused on by many countries in connection with China over the past few years (Chaudhury, 2020). The official statement released by the Inter- Parliamentary Alliance on China aims to respond to curb the global influence of the Chinese Communist Party that has been threatening democratic values and practices in the international sphere to achieve such influence. Therefore, the statement elucidates that the Alliance also aims to support nations that wish to stand up against China to preserve the integrity and fundamental liberties of the international order (IPAC, 2020). Alongside the broader and specific aims, the official statement of the Alliance also encompasses preservation of the democratic system and a marketplace with ideas free of any form of distortion. Moreover, the Alliance also aims to rallies likeminded nations to participate in the governance and enforcement of a free, rule- based and open international order which strives to protect human dignity (IPAC, 2020).


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In order to assess the success of the Inter- Parliamentary Alliance on China’s goals in the upcoming future, it is extremely vital to first discuss the Hong Kong issue, Uighurs issue and China’s coronavirus diplomacy. The Chinese Communist Party was founded in 1921 and was directly inspired from the Russian Revolution and therefore, its foundation has been laid with strong principles of Marxism and Leninism (Albert, Xu and Maizland, 2020). Although there was significant market reform in China, the Chinese State led by the Chinese Communist Party functions in today’s world in a Leninist System similar to North Korea, Cuba and Laos (Albert, Xu and Maizland, 2020). The island of Hong Kong was ruled by the Britishers for more than a duration of 150 years and subsequently, even China had leased Hong Kong to the British Government. However, in the 1980s when the lease between China and the British Government was going to come to an end, the Chinese Communist Party expressed that it wanted Hong Kong to be returned to China (Cheung and Hughes, 2020) and in pursuance of this, the Sino- British Joint Declaration was signed in 1984 and came to effect after July 1997 which resulted in Hong Kong to come under the control of China consisting of the “one country, two systems” principle (United Nations Treaty Collection, 2020). Recently in the year 2019, the Government of the Special Administrative Region of Hong Kong introduced the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill, 2019 which intends to regulate the transfer of criminal fugitives who are wanted in different parts of China such as Macau, Taiwan and Mainland China which would make the residents of Hong Kong subject to the legal system of China, undermining the civil liberties and freedoms of Hong Kong residents (Shek, 2020). This led to a strong reaction from the population leading to social unrest as a lot of vandalism, demonstration, condemnation and violence took place (Shek, 2020) due to which the Chinese Government expressed its wish to implement a national security law to curb dissent. Although the outbreak of the pandemic had reduced such instances by manifold, many concerns in China’s interference in Hong Kong’s affairs still exist in the global sphere (Fong, 2020). Discomfort amongst diplomats of various nations have also been witnessed in response to the coronavirus diplomacy strategy employed by China which included a wide host of unfavourable activities such as gouging of prices of medical supplies when the virus was declared as a pandemic and opportunism which was directed at takeovers and acquisitions of companies worldwide by Chinese companies (Bloomberg, 2020). Moreover, sale of faulty medical equipment and threats to other nations for investigations in the early pandemic handling measures taken by China has contributed to a negative image of China in international relations as an “unreliable partner” in all spheres (Mattoo and Narlikar, 2020). Human rights abuse against Muslim minorities and especially the Uighurs came to light in 2018 when it was reported that around 800,000 to 2 million Uighurs and other Muslim minorities were being detained in internment camps for indefinite durations by the Chinese authorities in the Xinjiang Uighur Autonomous Region (Busby, 2018). The Uighurs had been facing decades long atrocities for no justifiable reasons. The original 39 camps kept expanding year by year and has now taken the size of one hundred and forty soccer fields. It has been reported that the Uighurs have been forced to live in prison- like conditions, forced to renounce Islam and pledge loyalty to the Chinese Communist Party, faced torture, sexual abuse and forceful invasive medical procedures (Maizland, 2019). The United States of America, the European Union, various United Nations human rights agencies and international actors had criticised China’s actions but unfortunately, many Islamic nations have


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themselves supported Chinaâ&#x20AC;&#x2122;s human rights abuse inflicted upon the Uighur (Maizland, 2019). The Inter- Parliamentary Alliance on China can play an extremely vital role in closing Pandoraâ&#x20AC;&#x2122;s box constructively, opened by the Chinese Communist Party in the activities undertaken by it in the past few years. The multitude of diversity in countries that are a part of the Alliance can aid the situation as those member nations can rally other countries with similar interests from their respective Bloc. China has responded to this gargantuan initiative as political manipulation, ideological prejudice, interference in internal affairs and a cold war mentality (Chaudhury, 2020). A peculiar question that looms large is Indiaâ&#x20AC;&#x2122;s prospective participation in the alliance. This question seems more intriguing at a time when relations between India and China are convoluted. In a recent report from China, a senior figure at an influential Chinese think tank has explained that China considered the abrogation of the Article 370 of the Indian Constitution as a threat to their sovereignty (Krishnan, 2020). This Chinese statement has the potential to trigger India to do likewise on the issue of Honk Kong. The Inter- Parliamentary Alliance on China offers a strong platform to India for voicing a similar statement regarding the Honk Kong issue and also to proactively participate in discussions over the issues related to China. It seems that Parliamentarians from India can possibly join the alliance as a response to Chinese stand over the abrogation of Article 370 and the rising tensions with the Chinese. The Indian Ministry of External Affairs has been said to be in contact with some of the members of the Inter- Parliamentary Alliance, which further signifies possible Indian participation in the alliance in the near future. It would not be uncanny for the Indians to join the move against Chinese and in support of Honk Kong considering the flourishing relations between India and Hong Kong. Both parties have signed Memorandums of Understanding for trade, commerce, education etc. including a double taxation avoidance agreement in March 2018 for improved flow of investment and economic cooperation (Consulate General of India, 2019). Thus, India has sufficient ground to proactively voice their support for Hong Kong and hold China responsible for their wrongdoings. Due to the diversity in participating nations, the Alliance will focus on creating a loose network that will generate ideas for individual legislators and such approaches will be kept open for election by individual participating nations to cater all forms of differences that might arise between participating nations while the activities of the Alliance are in operation (Rogers, 2020). Such functional independence and freedom will also facilitate and support the wider goals for which the Alliance had formed. The Inter- Parliamentary Alliance on China could achieve decentralisation of dependence upon China for trade by other nations in the international order and moreover, support nations that have been often pressurized by China in one form or another (Marlow, 2020). Therefore, in view of the flow of events in the international sphere, it is undeniable that the Inter- Parliamentary Alliance on China will influence and transform the international order that will change the geopolitical and geo- economic relationships amongst countries and drastically change how China interacts in the incessantly frontward flowing river of global order.


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References 1. Albert, Eleanor; Xu, Beina; Maizland, Lindsay. “The Chinese Communist Party”. Council on Foreign Relations. (09 June 2020). [online]. [13 June 2020]. Available from: <https://www.cfr.org/backgrounder/chinese-communist-party>. 2. Bloomberg. “China’s Coronavirus Diplomacy has Finally Pushed Europe Too Far.” Bloomberg. (22 April 2020). [online]. [13 June 2020]. Available from: <https://www.bloombergquint.com/politics/china-s-coronavirus-diplomacy-has-finallypushed-europe-too-far>. 3. Busby, Scott. “Testimony”. Foreign Senate. (04 December 2018). [online]. [13 June 2020]. Available from: <https://www.foreign.senate.gov/imo/media/doc/120418_Busby_Testimony.pdf>. 4. Chaudhury, Dipanjan Roy. “18 US, Europe MPs Form Alliance Aimed at China”. The Economic Times. (07 June 2020). [online]. [12 June 2020]. Available from: <https://economictimes.indiatimes.com/news/international/world-news/18-us-europe-mpsform-alliance-aimed-at-china/articleshow/76250197.cms?fbclid=IwAR1Ue_D4PsLthINxONV9PJ1VNcWm0ZRN5QgIwPOTkuy3Iy4gvrNCba3xoCw&from=mdr>. 5. Cheung, Helier; Hughes, Roland. “Why are there Protests in Hong Kong? All the Context you Need”. BBC News. (21 May 2020). [online]. [13 June 2020]. Available from: <https://www.bbc.com/news/world-asia-china-48607723>. 6. Consulate General of India, Hong Kong. “India- Hong Kong Bilateral Relations”. Consulate General of India, Hong Kong. (April 2019). [online]. [14 June 2020]. Available from: <https://www.cgihk.gov.in/page/india-hong-kong-relation/>. 7. Fong, Brian. “Where Does Hong Kong’s Protest Movement Stand Amid Coronavirus Fears?” The Diplomat. (24 February 2020). [online]. [13 June 2020]. Available from: <https://thediplomat.com/2020/02/where-does-hong-kongs-protest-movement-stand-amidcoronavirus-fears/>. 8. Inter- Parliamentary Alliance on China. “Statement”. Inter- Parliamentary Alliance on China. (2020). [online]. [13 June 2020]. Available from: <https://www.ipac.global/statement>. 9. Krishnan, Ananth. “Beijing Think- Tank Links Scrapping of Article 370 to LAC Tensions”. The Hindu. (12 June 2020). [online]. [14 June 2020]. Available from: <https://www.thehindu.com/news/national/beijing-think-tank-links-scrapping-of-article370-to-lac-tensions/article31815266.ece>. 10. Mattoo, Amitabh; Narlikar, Amrita. “Resuscitating Multilateralism With India’s Help”. The Hindu. (07 May 2020). [online]. [13 June 2020]. Available from: <https://www.thehindu.com/opinion/lead/resuscitating-multilateralism-with-indiashelp/article31521059.ece>. 11. Maizland, Lindsay. “China’s Repression of Uighurs in Xinjiang”. Council on Foreign Relations. (25 November 2019). [online]. [13 June 2020]. Available from: <https://www.cfr.org/backgrounder/chinas-repression-uighurs-xinjiang>. 12. Marlow, Iain. “Lawmakers in Eight Countries Form New Alliance to Counter China”. Bloomberg. (05 June 2020). [online]. [13 June 2020]. Available from: <https://www.bloombergquint.com/global-economics/lawmakers-in-eight-countries-formnew-alliance-to-counter-china>. 13. Rogers, Benedict. “Parliamentarians From Around the World Unite to Discuss the China Challenge”. The Diplomat. (06 June 2020). [online]. [13 June 2020]. Available from: <https://thediplomat.com/2020/06/parliamentarians-from-around-the-world-unite-todiscuss-the-china-challenge/>. 14. Shek, Daniel. “Protests in Hong Kong (2019-20): A Perspective Based on Quality of Life and Well Being”. Applied Research in Quality of Life: Springer Link. (2020). [online]. [13 June 2020]. Available from: <https://link.springer.com/article/10.1007/s11482-020-09825-2>.


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15. Swarajya. “Several MPs from US, Europe and Other Nations Come Together to Form InterParliamentary Alliance Against China”. Swarajya. (08 June 2020). [online]. [12 June 2020]. Available from: <https://swarajyamag.com/insta/several-mps-from-us-europe-and-othernations-come-together-to-form-inter-parliamentary-alliance-against-china>. 16. United Nations Treaty Collection. “Joint Declaration on the Question of Hong Kong”. Treaty No. 23391. (12 June 1985). [online]. [13 June 2020]. Available from: <https://treaties.un.org/doc/Publication/UNTS/Volume%201399/v1399.pdf>.


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Indo-African Multilateralism: A 2020 Insight Manohar Samal1 1

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Research Analyst, Internationalism C/O AbhiGlobal Legal Research & Media LLP manohar@internationalism.co.in;

Introduction

Multilateralism has been an extremely pivotal political tool in the international sphere since the end of the Second World War and refers to the coordination of national policies in groups of three or more States with the aid of international institutions and ad hoc arrangements (Keohane, 1990). Multilateralism consists of certain principles and qualitative elements such as commitment to diffuse reciprocity, indivisible interests of participants of multilateralism and a dispute settlement mechanism that can enforce compliance which can either be through informal arrangements or through a formalised body (Scott, 2015). In context to todayâ&#x20AC;&#x2122;s world, multilateralism is a key pillar in the global system that provides for international order (Sidiropoulos, 2019). The coronavirus (COVID- 19) pandemic has entirely changed the nature and focus of international cooperation and has also resulted in explicating the weaknesses in the entire system (Mishra, 2020). Western Blocs which comprise Global North nations that have usually led multilateral efforts have been hit the hardest during the pandemic (Chan, 2020). Response from all the nations in the global sphere has led to a shift to inward focus, deterioration of multilateral efforts within a span of a few months and a significant rise in protectionist measures by nations (Broadman, 2020). However, repairing multilateral relations in the post- recovery stage will do more good than harm for the progress of all nations. The shifting global order has provided numerous opportunities for India and Africa due to strong multilateral efforts of African nations and India individually and also in partnership (Bhatia, 2019). 2

Indiaâ&#x20AC;&#x2122;s Approach to Multilateralism

After India gained independence in the year 1947, it had to spend many years struggling to achieve international status on the basis of its geopolitical uniqueness and civilizational greatness. However, it was not until the Cold War period, that India had to resort to multilateralism as a defensive measure to achieve international recognition in an increasingly competitive bipolar world (Mukherjee and Malone, 2011). Over the span of years, India has managed to earn the reputation of an idealist moralizer and pragmatic dealmaker in its multilateral strategies (Mukherjee and Malone, 2011). The shift of international order has not only been from one bloc to another but also from the political to the ideological sphere. An ideological battle in global governance and multilateral relations could lead to severe bifurcation in international relations where Western Powers, Japan and India would be on one side that prefer free and open international


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economic systems and nations like Russia and China on another side who emphasise more upon spreading non- liberal political and economic reforms for governance (Nachiappan, 2020). Under such circumstances, India can play a significant role in maritime security, trade and climate change. The devastation inflicted by the coronavirus pandemic has heightened the multilateralism crisis resulting in one of the weakest forms of multilateral relations that has ever existed in the world (Mattoo and Narlikar, 2020). The rise in the amount of deaths globally resulted in severe export restrictions of basic medical and essential supplies. China’s coronavirus diplomacy and responses from other nations to it has pristinely elucidated the grave realities of weaponised interdependence (Mattoo and Narlikar, 2020). In this situation, India’s resilient pluralism, liberalism and democratic strategies provide remarkable opportunities to increase multilateral efforts as many powers from the Western Bloc have started decoupling from China and have started fixing their focus on India. Even though China’s economy will revive faster, it has lost its image of a reliable partner globally (Mattoo and Narlikar, 2020). Therefore, the recent initiatives to include India in the G7 Plus, India’s increased medical multilateral strategies and the aim of the international order to decentralise the dependence of the global supply chains from China, various new geopolitical and geo- economic relationships will emerge where India can play an extremely pivotal role (Bagchi, 2020). 3

Africa’s Approach to Multilateralism

Africa’s multilateral strategies have often gone unnoticed which has led to ignorance of the fact amongst many nations across the world that Africa has been a secret champion of multilateralism (Maunganidze, 2019). Right from the 1960s, multilateral initiatives have played a vital role for African nations to escape apartheid and colonialism. The African Union has been the regional organisation empowered to adequately represent the interests of 55 African countries in multilateralism. Due to incessant violence and conflict in African countries, most of its resources are utilised for attaining continental security and peace (Maunganidze, 2019). The African Free Trade Agreement which was signed in 2018 and came to effect in 2019, has also shown Africa’s commitment towards economic integration since 54 out of 55 Member States of the African Union have signed it (Tralac, 2020). Not only this, but Africa has various multilateral organisations to foster cooperation and facilitate disputes such as the Pan- African Parliament, African Development Bank and the African Court on Human and People’s Rights (Maunganidze, 2019). African leaders have noticeably called for an increased role in the United Nations Security Council and moreover, strong integration amongst the entire continent could lead to an increased role of African countries in a world where most nations have resorted to protectionism presently. Although the coronavirus pandemic has hit African nations hard and the reduction of commodity prices could hurt the economies of African nations, a reintegrated attempt of the African Union with the European Union with a revised multilateral strategy could prove to be resourceful in the post- pandemic stage since the two other significant powers that play a significant role in the economies of the European Union and the African Union, viz., the United States of America and China have shifted their focus to rivalry amongst each other (Ketchell, 2020). Not only with the European Union, but African nations can now simultaneously build partnerships with India, which is emerging as another global player which is capable of shifting the global order towards new geopolitical and geo- economic multilateral initiatives, strategies and relationships (Mishra, 2020).


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Indo- African Relations

Relations between India and Africa are not a recent phenomenon and date back to the initiatives of the Bandung Declaration and as well as the Non- Aligned Movement. India’s relations with Africa already span over a variety of trade and other areas such as pharmaceuticals, information technology, agriculture, health, culture, education, civil society, telecommunications, governance and energy where both, the private and the public sector have played an important role over the years (Beri, 2019). In July 2018, the Indian Prime Minister visited and addressed the Ugandan Parliament and espoused ten guiding principles of improving multilateral relations between India and the African continent (Viswanathan and Mishra, 2019). The principles have been specified below• Africa will be at the top of India’s priorities and intensification and deepening of relations between India and Africa will be sustained and regular. • Development partnership will be based upon the priorities of Africa and India’s attempt would be to create local opportunities and capacity on terms that are comfortable to African nations to ensure liberation of potential and avoid constraints in the upcoming future. • India will keep open markets for African nations in a manner that it makes it easy and attractive for trade and India will aid its industries to invest more in Africa. • India’s experience in the digital revolution will be harnessed to support the development of African nations by improving delivery of public services, education and healthcare facilities, increase digital literacy and expand the inclusion of mainstream and marginalized finance. • India will partner with Africa to increase agricultural productivity in African nations since Africa possesses 60% of all arable land in the world but only manages to produce 10% of the global output. • The partnership will emphasize on climate change. • The partnership will emphasize on strengthening cooperation and mutual capabilities to combat terrorism, extremism, keep cyber space safe and support the United Nations to advance peace. • The partnership will focus on keeping oceans open and free for benefits to be reaped by all the nations in the world by cooperation and competition in the eastern shores of Africa and the eastern part of the Indian Ocean. • The partnership will also emphasize on avoiding the catering of any form of rival ambitions as global engagement increases and rather focus on advancing the aspirations of African youth. • India- Africa partnership will work together for a democratic, just and representative global order that represents one- third of the human beings that live in India and the African continent. The partnership between India and Africa is people-centric which is based upon the principles of mutual benefit, equality, solidarity and mutual respect (Mishra, 2020). However, at the same time it is extremely significant that the Global North nations do not withdraw from their North- South commitments. However, after the outbreak of the coronavirus


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pandemic, India has advocated ideas of self- sufficiency. Similarly, even African nations have believed in self- sufficiency since an extremely long duration of time. The Indian Prime Minister has explained the importance of an ‘Atmanirbhar Bharat’ to increase the emphasis on indigenous manufacturing in all the sectors (Press Trust of India, 2020). African nations have also stated the importance of pan- Africanism and the development of self- reliance during the Agenda 2063 (African Union Commission, 2015). Although nations have begun focusing more inwards, it cannot be denied that increased self- sufficiency in a nation also facilitates the improvement of how a nation fulfils its international and multilateral obligations and duties. Therefore, India and Africa could use their shared and common interests and multilateral strategies as a tool to shape the global order of multilateralism in the post- pandemic recovery stage. References 1. African Union Commission. “Agenda 2063: The Africa We Want”. Background Note. (2015). ISBN: 978-92-95104-23-5. [online]. [12 June 2020]. Available from: <https://au.int/sites/default/files/documents/33126-doc-01_background_note.pdf>. 2. Bagchi, Indrani. “A New Order: When the World Emerges From the Pandemic, We’ll Wake Up to a New Multilateral Order.” The Economic Times. (07 June 2020). [online]. [12 June 2020]. Available from: <https://economictimes.indiatimes.com/news/politics-and-nation/a-neworder-when-the-world-emerges-from-the-pandemic-well-wake-up-to-a-new-multilateral-order/articleshow/76237429.cms>. 3. Beri, Ruchita. “India and Africa: An Evolving Partnership”. Institute for Defence Studies and Analyses. (2019). [online]. [12 June 2020]. Available from: <http://www.nkibrics.ru/system/asset_docs/data/54cf/7408/6272/690a/8b1b/0000/origina l/India_and_Africa_-_An_Evolving_Partnership.pdf?1422881800>. 4. Bhatia, Rajiv. “India- Africa Partnership in a Changing Global Order: Priorities, Prospects and Challenges- Remarks by Secretary (ER) at ICWA National Conference”. Ministry of External Affairs, Government of India: Media Center. (03 September 2019). [online]. [12 June 2020]. Available from: <https://mea.gov.in/SpeechesStatements.htm?dtl/31785/IndiaAfrica_Partnership_in_a_Changing_Global_Order_Priorities_Prospects_and_Challenges__Remarks_by_Secretary_ER_at_ICWA_National_Conference_September_>. 5. Broadman, Harry. “Protectionism Makes the Coronavirus Even More Lethal”. Forbes. (31 March 2020). [online]. [11 June 2020]. Available from: <https://www.forbes.com/sites/harrybroadman/2020/03/31/protectionism-makes-thecoronavirus-even-more-lethal/#7545468a1413>. 6. Chan, Melissa. “The West is About to Fail the Coronavirus Test”. Foreign Policy. (24 February 2020). [online]. [11 June 2020]. Available from: <https://foreignpolicy.com/2020/02/24/west-coronavirus-china-quarantine-covid-19pandemic/>. 7. Keohane, Robert. “Multilateralism: An Agenda For Research”. International Journal. (1990). Volume 45, No. 4, pp. 731-764. [online]. [11 June 2020]. Available from: <https://www.jstor.org/stable/40202705?seq=1>. 8. Ketchell, Misha. “Europe and African Relations Post COVID- 19: Time to Add Size, Scale and Speed”. The Conversation. (01 April 2020). [online]. [12 June 2020]. Available from: <https://theconversation.com/europe-and-african-relations-post-covid-19-time-to-add-sizescale-and-speed-135017>. 9. Maunganidze, Ottilia Anna. “Africa- The Secret Champion of Multilateralism”. Arab News. (15 September 2019). [online]. [12 June 2020]. Available from: <https://www.arabnews.com/node/1554636>.


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10. Mattoo, Amitabh; Narlikar, Amrita. “Resuscitating Multilateralism With India’s Help”. The Hindu. (07 May 2020). [online]. [12 June 2020]. Available from: <https://www.thehindu.com/opinion/lead/resuscitating-multilateralism-with-indiashelp/article31521059.ece>. 11. Mishra, Abhishek. “India, Africa and the Quest For Reformed Multilateralism”. Observer Research Foundation. (26 May 2020). [online]. [11 June 2020]. Available from: <https://www.orfonline.org/expert-speak/india-africa-quest-reformed-multilateralism66763/?amp>. 12. Mukherjee, Rohan; Malone, David. “From High Ground to High Table: The Evolution of Indian Multilateralism”. Global Governance. (2011). Volume 17, No. 3, pp. 311-329. [online]. [12 June 2020]. Available from: <https://www.jstor.org/stable/23033750?seq=1>. 13. Nachiappan, Karthik. “Redirecting Multilateralism: Will India Seize the Opportunity?” Heinrich Boll Stiftung: The Green Political Foundation. (15 January 2020). [online]. [12 June 2020]. Available from: <https://www.boell.de/en/2020/01/15/redirecting-multilateralism-will-indiaseize-opportunity>. 14. Press Trust of India. “COVID Crisis an Opportunity, Time For Bold Decisions and Investments: Modi”. The Times of India. (11 June 2020). [online]. [12 June 2020]. Available from: <https://timesofindia.indiatimes.com/india/covid-19-crisis-should-be-turned-into-anopportunity-for-self-reliant-india-pm-modi/articleshow/76316166.cms>. 15. Scott, James. “Multilateralism: International Relations”. Encyclopaedia Britannica. (13 October 2015). [online]. [11 June 2020]. Available from: <https://www.britannica.com/topic/multilateralism#ref307855>. 16. Sidiropoulos, Elizabeth. “The Retreat of Multilateralism: What Should Africa Do?” Istituto Per Gli Studi Di Politica Internazionale. (07 October 2019). [online]. [12 June 2020]. Available from: <https://www.ispionline.it/it/pubblicazione/retreat-multilateralism-what-should-africa-do24092>. 17. Tralac. “African Continental Free Trade Area”. Tralac. (2020). [online]. [12 June 2020]. Available from: <https://www.tralac.org/resources/our-resources/6730-continental-free-tradearea-cfta.html>. 18. Viswanathan, H.H.S. and Mishra, Abhishek. “The Ten Guiding Principles For India- Africa Engagement: Finding Coherence in India’s Africa Policy.” Observer Research Foundation: Occasional Papers. (25 June 2019). [online]. [12 June 2020]. Available from: <https://www.orfonline.org/research/the-ten-guiding-principles-for-india-africa-engagementfinding-coherence-in-indias-africa-policy/>.


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India’s Foreign Policy Avenues towards a Multipolar West Asia Vasu Sharma1 1Junior

1

Research Analyst, Internationalism C/O AbhiGlobal Legal Research & Media LLP vasu@internationalism.co.in

Introduction

The International Order has seen three phases of polarity since Treaty of Westphalia (1648) till date. For three centuries, 1648 – 1945 i.e. since Treaty of Westphalia and till end of World War II, the International Order was merely ‘Concert of Europe’. This term is used to define the three centuries because most of the territories other than Europe were colonies of European empires. However, with end of Second World War, an era of bi-polarity prevailed. Conceptually, the International Order was dominated by two superpowers i.e. United States of America (USA) and former Union of Soviet Socialist Republics (USSR). The bi-polar world was complemented by a ‘Cold War’ between the two poles of power. With disintegration of USSR, Cold War and bi-polar world, both came to an end in 1991. USA remaining the only superpower, led to creation of unipolar world since 1991. The year 1991 is not only remembered for disintegration of Soviet Union but also due to the Gulf War which had taken place in 1991. Under leadership of dictator Saddam Hussein, Iraqi forces invaded Kuwait in August of 1990. An ultimatum was given to Iraq by United Nations to evacuate Kuwait before January 15 or else, a military action would be taken. Through operation Desert Storm and operation Desert Sabre, a military offensive led by alliance of USA and other countries (Britain, France, Egypt and Saudi Arabia) in months of January and February respectively, it was a sneak peak of unipolar world which would last till 2008. With economic recession in 2008, a multipolar world emerged. In a multipolar world, there are no defined poles of power. A multipolar world implies a number of stake holders or key players in International Order. The multipolar world has given Asian countries to emerge as major stake holders at forefront of International Politics. Asian countries which were once colony of various European powers, now stands as more important and significant than Western Economies. This multipolar world has given opportunity to India to exercise ‘Strategic Autonomy’, a doctrine which theoretically is possible only under Unipolar World. 2

India and West Asia

West Asia is a nomenclature used for the region popularly called ‘Middle East’. India and West Asian countries share historical and civilizational ties. A region accommodating largely Islamist countries, is highly strategic and important for India. The geographical position of Indian sub-continent is such that India enjoys certain proximity with energy rich Strait of Hormuz in West and trade enriched Strait of Malacca in East. Recognizing monetary and economic advantages in a globalized world, India with a vision of enhancing


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cordial relations with South East Asian economies, formulated ‘Look East Policy’ in 1991 which later was reformed to ‘Act East Policy’ in 2014. As matter of chance, there is as such no formal policy of Republic of India towards West Asia. However, foreign policy of India towards West Asia is significant and important as well to study. Undoubtedly, a popularly known ‘Look West’ or ‘Think West’ of India does stand on different pathways from the official doctrine of ‘Act East Policy’. Indian approach towards West Asia was completely on different contrasts before and after 1991. Indian Interests in the Region Indian interest in the region can be classified into four aspects a. The Indian diaspora in the region b. Energy access or dependence of oil and gas to the region c. Foreign Exchange remittances d. Trade Gulf countries are important source of oil and gas to India. India is 83 per cent oil dependent on its imports. The fact that India is third largest consumer of oil in world (after US and China) provides justification for importance of the region. 51 per cent of oil imported, is through Strait of Hormuz, broadly through Iraq, Saudi, Kuwait and UAE. (Turmoil in the Middle East, 2020) 3

Literature Review

3.1

Indian Engagement in West Asia

British India engagement In geo-political connotations, Arabia could be termed as westernmost frontier of British India. As mentioned earlier, for three centuries International relations and orders were defined through the terminology of ‘Concert of Europe’. Foreign involvement in the region was specifically by the European imperial powers. During 19th and 20th Century, foreign interventions in West Asia were broadly due to three aspects first trade and political rivalry among imperial European powers, second need to maintain imperial interests in the region, and third to establish and protect lines of communication in the region. Interests of the mighty British Empire in the region was through a number of agreements between the Monarchs and British Empire. These agreements were advocated, carried forward and looked upon by diplomats, civil servants and armed forces officials who were funded and deployed by British India. These officials were exercising powers as ‘political representatives and imperial officials’ of safeguarding British interests. Soon a triangulated power structure was formed to maintain British Political authority in the region. The stakeholders of power in the triangular structure were officials (diplomats, civil servants, armed forces officials, etc), Native agencies and residencies in the region and the Gulf Monarchs. British Navy switched from coal to oil to power the Naval vessels of British Empire in 1912. Hence the region of Gulf became important to cater navies and armies of European imperial empire. (Ahmad, 2015) The 20th Century not only witnessed the Great War (World War I) 1914 – 1919 and World War II 1939 – 1945, but also how hydrocarbons would enter the global diplomacy and could dominate International Order for next 120 years. Many battles of World War II were specifically fought to access and dominate oil supplies or to cut off oil supplies. Hydrocarbons


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were not only used to power Battle ships, aircraft carriers, and other naval vessels, but also mechanized infantry vehicles and aircrafts. Hence the demand of energy resources was major cause of battles. Post – Independence engagement (1947 – 1991) The post – independent India was a nascent democracy. Between 1947 – 1964 Indian foreign policy was defined by the Nehruvian doctrine of Non-alignment. The cold war era initiative was brain child of first prime minister of independent India, Dr, Jawaharlal Nehru. The initiative conceptually meant a group of then third world countries (Asian, African and Latin American countries which got independence from European Colonizers by end of World War II). As a movement NAM did fail but as a doctrine, its remnants were still prevailing in Indian foreign policy. Furthermore, due to the twenty-year Friendship Treaty in 1971, neither did India entered Warsaw Pact nor did it join Soviet Bloc, but would ally with USSR in case of foreign threat or war. This treaty was precedent to the Indo-Pak 1971 war. Such a treaty was signed with USSR since, an alliance of Pakistan, China and USA was seen in 1971, with Seventh Fleet of US Navy locating itself in Bay of Bengal. Hence, due to Cold War politics, Indian foreign policy was somewhere defined due to its proximity with USSR. Hence for around first twenty years, Indian approach to foreign affairs was defined by ‘Nehruvian idealism’ and during era Indira Gandhi, Indian approach towards foreign affairs was defined by ‘hard edged realism’. (Malone, et al., 2015 p. 23) Post – Independence, Indian approach towards West Asia was quite different and unlike from the hegemonic political and military intervention of its precedent, the British Raj. However, India’s post – independent ties were quite similar to the pre – colonial ties with West Asia. Nascent Republic of India provided region with commodities like ‘foodstuff’, ‘textile materials’, ‘silk’, ‘jewelleries’, etc and in return Arab world recognized India commercial partner, medical centre and tourist destination. (Ahmad, 2015) Following cold war politics, India was dependent for Hydrocarbons largely on USSR (1525 per cent). India maintained political distance with the West Asian countries. Indo-Israel relation were frozen at that point of time, due to pro-Arab and pro-Palestinian position of India. (Alam, 2017) Another reason for the pro – Arab and pro – Palestine stand was the need anticipated by New Delhi to obtain sympathy and support from ‘Islamist Arab World’ on Kashmir issue. (Ahmad, 2015) The Pakistan – Saudi relation has been an issue of concern for Indian diplomats and Indian foreign policy makers. From 1968 – 1988, Pakistan provided Saudi Arabia with 20,000 military personnel stationed at borders of Jordan, Iraq and Yemen. Moreover, Pakistan provided Saudi Arabia with military training and in return, the Gulf Monarch funded Pakistan the purchases of US arms. During Cold War, an intimate tie between Saudi Arabia – Pakistan – United States was witnessed to promote ‘Global Jihad’ against the Soviet Invasion of Afghanistan. In 1971, Pakistan and Saudi Arabia were important countries and members who played a major role in formation of Organization of Islamic Nations. Indo – Pak rivalry was visible in Rabat Conference, 1969, the convention for institutionalization pan – Islamic project. On insistence of Pakistan, Indian delegation was forced to leave the convention. As an attempt to create vacuum between the strong Saudi – Pak relation, Prime Minister Indira Gandhi visited Saudi Arabia in 1982. However, this visit could not distance Saudi Arabia from Pakistan. (Ahmad, 2015) In 1970s, Gulf monarchs used oil as a token to strengthen their position and obtain a higher leverage against the Strong and powerful Western Democracies. As a result, oil prices witnessed an increase subsequently leading to revenue generation. This revenue generation led to a situation of oil boom in 1973 which preluded advancements in science and


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technology and national development projects. Then India emerged as a major outsourcing of blue-collar job workers to Gulf countries. (Ahmad, 2015) Since oil boom, migration of Indians to Gulf Co-operation Council countries has increased. To narrow down gap between labour force and rapid industrialization, Gulf countries allowed inward migration of labours from countries. Since then, India is largest supplier of unskilled or semi-skilled labour to Gulf Countries. Since then, Indian diaspora been an important responsibility of Indian diplomacy. (Indian Migration to Gulf Countries: Issues and Challenges, 2015) Era of new chapters (1991 – 2014) However, the Nehruvian Non-Alignment was challenged by the Gulf War in 1991. When Indian foreign policy makers faced a policy dilemma whether to stay non-aligned and stand against Western intervention in conflict or to ally with US led military coalition considering the changing World order and economic interest ahead. The VP Singh government then, chose to a rather different solution, to ensure safety of Indian diaspora there. Hence from August 1990 to October 1990, around 1,70,000 Indians were evacuated from the region. India did support UNSC Resolution 678 in 1991, which authorized use of force against Iraqi Army however, did not join the US led Military coalition. But India did provide Indian Air Force facilities to be used as fuelling stations for jets of US Air Force during Operation Desert Storm. Although ensuring the South – South co-operation, India abstained to vote for Resolution 686, which dealt with boundary dispute between Iraq and Kuwait. (Wedhawan, 2019 ) In 1991, when India went through New Economic Policy (NEP 1991) and doctrine of liberalisation, privatization and globalization was adopted, economic growth was inevitable. But to facilitate the economic growth and growing economies oil demand, India had to look to West Asian countries for Oil and Gas. Since then ties with UAE, Saudi Arabia, Iran and Israel were escalated. Till date, Indian foreign policy revolves around these countries. (Alam, 2017) Indo – Israel relations With collapse of Soviet Union in 1991, India had to search a defence and strategic partner in the International Order. Normalization of ties with Israel in 1992 meant commencement of new9 chapter between India and Israel. Then Prime Minister P.V. Narsimha Rao and his Security Advisor J.N. Dixit identified Israel as a gateway for bolstering new ties and relations with Washington. However, at that point of time two concerns clouded over New Delhi, (a) Left liberal intellectual opposition and (b) Limited Muslim sensitivity in Israel. India observed Israel as a major defence strategic partner and Israel identified India as prowess of software, Pharma, Water management and agriculture. During Kargil War in 1999, Israel provided strategic contributions to India through supply of arms and ammunition, etc. Furthermore, Israel helped India to develop Air and Missile defence systems. Visit of then Deputy Prime Minister of India to Israel marked a new strategic partner of India in the region. From 1992 – 2000, normalization of ties between the Jerusalem and New Delhi, complemented active growth in tourism, trade, investment and government – government assertion and promotion of defence partnership and co-operation. (Chaudhari, 2015) India- Iran Agreement (2003) The agreement between India and Iran to develop Chabahar Port in 2003 was a pathbreaking and landmark agreement in Indian diplomacy and foreign policy. According to the agreement, India would invest and develop Chabahar Port and further connect it to Afghanistan, providing Afghanistan to trade with India by – passing irritant neighbour Pakistan. In 2008, India and Iran signed an agreement to develop rail link between Iran and Russia.


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Furthermore, India – Iran – Afghanistan came into a trilateral agreement to construct a rail road -from Iran to Afghanistan (Chabahar – Melak – Zaranj – Delaram) In 2009, what is known as Route 606, Zaranj – Delaram was completed through assistance of India. Another important project between India and Iran was ‘International North and South Trade Corridor’. This was a multi-modal trade and transit corrido connecting India, Iran, Russia and other Eurasian and Central Asian countries. Such projects were signed upon by India and Iran years before Xi Jinping announced the ‘Belt and Road Initiative’ in 2013. (Roy, 2015) Visit of first Gulf monarch to India (2006) In January 2006, Kang Abdullah, the monarch of Saudi Arabia visited India and was called upon as chief guest for Republic Day on January 26. 1955 was the last time when a Saudi monarch visited India (King Saud). This visit was indeed very important for India and its interest in West Asia. With ‘Delhi Declaration’ signed between two (Indian Prime Minister and Saudi King) a ‘strategic energy partnership’ was established between India and Saudi Arabia. The subtitle of ‘Riyadh Declaration’ in 2010 stated ‘A New Era of Strategic Partnership’. Saudi had now identified India as a strategic partner in political, defence and security, cultural and economic areas. The result of this declaration set out to be intelligence sharing to monitor ‘Islamic Extremism’ in South Asia and Persian Gulf. During these years (2008 – 2010) Indian relations with other Gulf countries like Oman and UAE (United Arab Emirates) boosted as well. Gulf countries reciprocated the strategic partnership with India. Defence co-operation was a field where major gulf countries found convergence with India. The fear of expanding religious extremism in the region, New Delhi set out to establish important defence co-operation and relationship with Gulf Countries. Post 2006 (visit of Saudi King) defence relationship bolstered between India and the region with escalation and assertion of maritime security, intelligence sharing, military exercises, etc. (Ahamd, 2015) 3.2

Estimating the Widely Held Foreign Interests of the US, Russia and China

United States of America United States of America is most powerful global player in West Asia. US led interventions in Libya and North Africa have not only led countries into turmoil and devastation but have rendered them unable to obtain growth and development. Such interventions by Western Democracies raise questions on the ‘Responsibility to protect’ doctrine of West. Campaigns of Uncle Sam in Iraq and Libya have given states, sects and locals an opportunity to acquire weapons of mass destruction. Such counter activities to raise ethical and moral questions on so called ‘humanitarian posture’ of United States. Syria has become an arena for regional and global powers to express their hegemony, safeguard their rights and interests, eliminate and contain rise of opposing regimes, doctrines, etc. Syria is witnessing a Civil War, complemented by sectarian conflicts between Shia and Sunni which was further infused by regional rivalry between Iran and Saudi Arabia. In 2013 with rise of Islamic State, the region became more vulnerable. US was able to promote ‘Kurds’ against Islamic State. With Syria backed by Russia, US took san anti – Assad stand in International Order. The agreement of Syrian Chemical Weapons was victory of Moscow Diplomacy and failure of Obama administration. Moreover, military threats by Washington to interfere in Syria resulted a need of military and political solution. Washington was a virtual ally of Saudi Arabia and Pakistan since Cold War days. The Operation Desert Strom and Operation Desert Sabre in January and February 1991 respectively, functioned as a catalyst to bolster ties between the two. However, with Joint Comprehensive Plan of Action (JCPOA) and Iran Nuclear Deal in 2015 indicated disengagement


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of Washington from the region and re-approach of US foreign policy towards Shia majority Iran, thus directing certain disownment for Sunni Gulf Countries. Due to this, there have been certain disarrays between USA and Saudi Arabia. Persian Gulf has always been a major supplier of hydrocarbons throughout the countries. However, energy independence of US is a big factor completely shifting US interests. Yet, United States of America with its mistakes in Libya, Afghanistan and Iraq does hold certain power assets and strengthened leverage with its partners in the region. Hence still US remains major global player in West Asia. (Widmark, 2015) China Chinese interests are not only restricted to West Asia but further to West Asia – North Africa (WANA) region and other important nations of Africa as well. The WANA region provides China with coal and oil (energy exports) which serve and boost Sino economic growth and development. Significantly, China provides WANA region with investment in infrastructural development, automobiles, etc. Acceptance of Asian countries like China and India is much better in West Asia rather than the interfering USA. Quite similar to Russia, China in past had chose to veto resolutions regarding Syrian Crisis. Hence Chinese foreign policy is not that of ‘non-interference’ but ‘position taking’. China is trying to establish military ties with Iran through naval exercises and defence co-operation. But Sino – Pak relation would not only affect Chinese policy in Iran, but also in the Gulf Countries. (Widmark, 2015) China has been keen on increasing its footprint in West Asia. Unlike USA, China is not using military intervention but through BRI (Belt and Road Initiative) it is connecting West Asia to BRI from vision of logistical support and trade corridor. Through various infrastructure and development projects, China has been able to advocate its expansion policy. Chinese presence in West Asia provides India with two concerns, first it can challenge, contend, diminish Indian presence in the region and second, cut off India from energy supply in West Asia or alter it. (Roy, 2018) Russia Russian policy in the region is quite contrary to that of US and Western World. Unlike other foreign interventions in the region, Russia is not dependent on Persian Gulf or West Asia North Africa (WANA) for it’s energy calculus or demand for hydrocarbons. Rather Russia can be considered as competitor to the oil supplies of West Asia. For Russia, Syria can be termed as a ground to challenge and contend USA and Western regimes of intervention. Moreover, Syria has been a country of strategic importance for Russia. The gas and oil pipelines in Syria are important fields of convergence between two. Russia has been observed to use the ‘Veto power’ in United Nations Security Council to express its stand for Syria. Russia fears a weakened Assad regime or fall of Assad regime would gradually lead to threat to domestic stability in Russia and threat to interests in Syria. Russia has not been able to create a strategic cartel with countries in West Asia. As such, a virtual cartel between US, Saudi Arabia and UAE (US and other Sunni Muslim nations) can be observed in West Asia which have weakened Russian oil diplomacy with depleting the oil prices on purpose. US and Saudi alliance can be dated back to cold war era. However, with Syria emerged in Civil War and proxy wars on periphery of that civil war, Russia has not identified any strategic partnership in West Asia to challenge the US cartel.


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Russia has maintained good relations with Israel, a major trading partner. Furthermore, presence of Soviet Jews was eminent to bolster Russian Israeli relations and support of Israel in Russian campaigns of Chechen. (WIdmark, 2015) Russian presence in West Asia, has been primarily due to three reasons: a. Its support of Bashar Al Assad government in SYRIA as bulwark to stop radical Islam to spread b. To terminate any expansion of ISIS in terms of agenda and recruitment into Central Asia, to be precise, Chechnya, Dagestan, Tatarstan and Bashkortostan (Muslim Republics in Russian Federation). c. Thus, to eliminate and fight against ISIS Russia and India have several advantages if they work together in the region. Though INSTC and Chabahar Port, a trade and transit corridor can connect Eurasia, Central Asia, Afghanistan and other parts of West Asia to India. (Roy, 2018) 3.3

Indian Diaspora in the region

Gulf countries accommodate around seven to eight million of Indian expatriate community. Indian diaspora in the region is the largest foreign immigrant community in Gulf countries. As mentioned earlier, due to oil boom Persian Gulf became an attractive employment opportunity for Indians. With enhanced bilateral trade with GCC nations, India enjoys around an amount of 30 billion USD (until 2017) remittances sent by Indian expatriate community in Gulf. Responsibility and safety of the Indian diaspora becomes an important subject of Indian diplomacy in West Asia and remittances sent by the diaspora an interest of New Delhi towards its foreign policy in West Asia. Since West Asia is turbulent region internally, the conflicts in the region had forces New Delhi to conduct evacuations of Indians wherever conflict was hard – edged. Due to escalation of violence and internal turbulences, Indians had to be evacuated from Kuwait (1990), Lebanon (2015), Iraq (2014), Yemen (2015), and Qatar (2017). (Sangha, 2020): Profile of Indian Diaspora Saudi Arabia, United Arab Emirates and Bahrain host maximum number of Indian Diaspora (Non – residential Indians as well as Persons of Indian Origin). Generally, Kerala, Tamil Nadu and Andhra Pradesh provide maximum number of expatriates to Gulf. But off lately, states like Uttar Pradesh, Bihar, Maharashtra and Punjab have significant amount of population travelling to Persian Gulf. A four-tier classification of Indian community based on their qualification and profession is as follows (Kohli, 2015) : - unskilled workers, labourers in construction companies, logistical and transport companies, domestic workers, etc - skilled and semi-skilled workers - professionals: doctors, nurses, engineers, accountants, etc - Businessmen/ entrepreneurs In 1990s, around 90 per cent of Diaspora belonged to blue – collar jobs whereas the remaining constituted white – collar jobs and services. However, by 2012 around 35 percent of diaspora belonged to white – collar jobs and around 65 per cent of diaspora constituted blue – collar rendering jobs.


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Impact of Migration on India: Kerala as a Case Study Kerala is a state which provides largest number of Indian expatriates in Gulf Countries. Malappuram, Kasaragod and Thrissur are the three major districts which have been significantly being affected by migration. Migration solely does not impact any state or country. The remittances sent back to home, when injected into local economy lead to local prosperity and change in economic and socio-cultural aspects as follows (Kohli, 2015): - Large amount of money which is sent back to home as remittances by migrants in Gulf countries, when enters the economy of state helps to defeat the vicious cycle of poverty and unemployment. Due to remittances, an increase in consumerism can be observed in Kerala with commoditization of healthcare and education. Furthermore, due to increase in individual wealth, education and change in lifestyle, investment opportunities, socio – cultural patterns, politics and habits changes in trends of land ownership are observed as well. This has led to upward mobility of families of migrants living in Gulf. According to Kerala migration survey 2011, around 1.2 million wives were termed as ‘Gulf wives.’ The term denotes independent outlook of wives who manage household and financial transactions back at home, when the head of the house (male) is earning in foreign land. • A number of institutes which impart training on construction related courses, computer education, motor machines operations, paramedical courses, etc have been established in Kerala to form a skill full migrant class. These institutions have also led to certain improvement in vocational education. • Saudi Arabia accommodates around 2.8 million of Indian expatriate community, largest in West Asia. Hence large number of remits are sent back from Saudi Arabia. However, due to induction Wahabi brand of Islam in Saudi Arabia lifestyle, dressing habits and rationality is affected by the conservative element of Wahabi Islam. Hence this brand of Wahabi Islam us felt amongst Muslim households in Kerala whose family members reside in Saudi Arabia. • Spread of radical Islam is a threat to internal as well as external platers of West Asia. Less in number, many Indians were seen in Gulf countries converging with Islamic extremism emotionally thus getting recruited into Islamic State. 3.4

Oil Dependency and Trade

Dependency of oil Due to inadequate resources at home, India’s energy calculus is 83 per cent dependent on oil imports. Furthermore, 50 per cent of the oil needs are met by Gulf Countries i.e. Iraq, Saudi Arabia, UAE and Kuwait. India is third largest consumer of oil after US and China. However, if US becomes largest producer of oil, India will be second largest consumer of oil. India’s energy mix includes (Turmoil in the Middle East, 2020): Source Dependency in percentage Coal 44 Oil 25 Gas 5 Nuclear 1 Renewable Resources 10 Others 14 Table 1.1 - India's energy calculus (Ahmad, 2017)


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Oil has always strategic tool for Gulf Countries. Through this natural resource, Persian Gulf has been able to earn revenues through export of hydrocarbons. India’s growing economy will need more hydrocarbons in coming future. In 2017, India consumed 4.4 million barrels per day, this figure will increase to six million barrels per day in 2024. (Krishnan, 2020) Trade deficit In 2015 – 16, India’s five largest trading partners (countries, not multilateral forums) were: Country Exports (US$) Imports (US$) Total trade (US$) China 9,010 61,706 70,717 USA 40,335 2,1781 62,117 UAE 30,290 19,445 49,375 Saudi Arabia 6,394 20,321 26,715 Switzerland 977 19,299 20,276 Table 1.2- India's largest trading partners in World 2015 - 16 (Ahmad, 2017) Table 1.1 depicts how two Gulf countries i.e. UAE and Saudi Arabia occupy third and fourth position in India’s largest trading partners respectively. Persian Gulf countries which come in top 25 trading partners of India: Country Imports (in Exports (US$) Total Trade Rank US$) (US$) UAE 19,445 30,290 49,735 3 Saudi Arabia 20.321 6,394 26,718 4 Iraq 10,837 1,004 11,841 17 Qatar 9,022 902 9,924 19 Iran 6,278 2,781 9,060 21 Table 1.3 - India's largest trading partners in Persian Gulf in 2015 - 16 (Ahmad, 2017) In table 1.2 it can be seen that the countries with whom India is dependent on oil majorly, do acquire position in top 25 trading partners of India. However, other than UAE, with no other country does India’s exports exceed India’s imports. This is due to the oil imports. In 2015 – 16: Exports Imports Trade Oil im- Share of oil in trade deficit (US$) (US4) Deficit ports (Percentage) (US$) (US$) 262,290

381,006 118,716 96,935 81 Table 1.4 Share of Oil in trade deficit in 2015 - 16

In table 1.3 depicts how oil imports account for major trade deficits with Gulf nations (Ahmad, 2017). 3.5

Changing Energy Scenario

The energy calculus and oil diplomacy of West Asia is facing the following changes (Hameed, 2017):


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US shale oil revolution Since 2008, US Shale Revolution has transformed United States from largest importer of oil to largest exporter of oil in International Community. Shale Gas supplies of Pennsylvania are equal to natural gas export capacity of Qatar. The light tight oil production of North Dakota and Texas (2012 – 2017) were equivalent to Iraq’s production levels in 2017. ‘Hydraulic Fracturing’ and ‘Horizontal Drilling’ were economically viable for United States. In 2011, the exports of refined petroleum products exceeded the petroleum imports of US. The low-priced natural gas has reaped two major benefits for Uncle Sam: ─ competitive advantage to refineries of US ─ refined petroleum products obtaining numero uno position amongst export commodities Impact of internal turbulences and Islamist Revolution Arab Spring in 2011 witnessed regime changes in majorly in non-Gulf countries of Arab World. Directly or indirectly, the protests in WANA did impact the oil prices globally. Saudi Arabia, UAE and Kuwait provided Bahrain, Jordan, Egypt and Morocco with ‘Aid Diplomacy’ to contain Arab Spring and therefore stabilize ‘dwindling oil prices’. However, the internal turbulences escalated in West Asia since then. In 2015, Saudi Arabia sent its forces to combat Houthi rebels (backed by Iran) in Yemen and fight proxy war against Iran in Syria, Lebanon and Iraq. This led to a resource drain of 5.3 billion US$ for Saudi Arabia annually. Furthermore, since Radical Islam was a threat to the whole region of West Asia, many coalitions were made internally to fight Islamic State of Iraq and Syria as well. Foreign Policy of Saudi Arabia has influenced internal actors as well as has increased ‘contestations for regional supremacy’ in West Asia, thus escalating turbulences and neverending conflicts in the region. ‘Military adventurism’ and ‘Aid Diplomacy’ of Saudi Arabia have affected the flow of oil prices in the region. Re – entry of Iran and Iraq Iran is fourth largest oil reservoir (ten percent of world reserves) and second largest gas reservoir (eighteen per cent of world reserves). Until 2015 due to sanctions from US and European Union, there were certain restrictions on global trade with Iran. With JCPOA (Joint Comprehensive Plan of Action) talks with P5 + 1 countries (US, UK, Russia, China, France and Germany) and Nuclear Deal in 2015, sanctions and restrictions being lifted Iran increased its oil exports and attracted foreign investments. Iraq is fifth largest oil reservoir in world. However, due to differences between Kurdistan Regional Government and Iraqi Government, oil supplies were disturbed and completely overlooked by Kurdistan Regional Government. However, a deal was made between the two, hence both parties came together with an objective to stabilize oil supplies. Yet, future of the deal remains debatable. Global Oil pact deal West Asia is a region which is characterized by turbulences in geo-politics and never-ending conflicts. However, on November 30, 2016, in Vienna victory of geo – economics over geo – politics was witnessed with need of higher oil price to boost export revenues. Saudi Arabia agreed to implement largest cuts in its oil production. Due to immediate lifting of sanctions Iran did agree to slightly increase its productions. On contrary. Iraq also agreed on Production Cuts. Iraq also agreed on Production Cuts. ‘Global oil pact deal’ was production cut deal signed between OPEC members and twelve non – OPEC countries.


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4

India’s Engagement after 2014

4.1

Escalation in Bilateral Ties

Post 2014, India has been actively engaging with Foreign Policy objectives and agendas. As mentioned earlier, Energy security, Expatriate security, Remittances and Trade are interests that lay in West Asian countries. However, post 2014 there has been quick escalation of high bilateral visits, engagements and talks between Gulf Countries and India. Prime Minister Narendra Modi visited Bahrain in August 2019, Israel in July 2017, Iran in May 2016, Oman in February 2018, Palestine in February 2018, Qatar in June 2016, Saudi Arabia in April 2016 and October 2019 and the UAE in August 2019 after previous visits in August 2015 and February 2018 respectively. With escalation of ties and bilateral engagements, new interests and fields where Indo – Gulf relations can converge on have been discovered. These include maritime security, defence co – operation, cyber security, intelligence sharing, counter terrorism, protection of sea – lanes, combating extremism and radicalism. Table below depicts the visit to country, number of areas which were agreed upon and +out these how many were security related (Ahmad, 2017): Country Total areas agreed upon Security related UAE 31 17 Saudi Arabia 36 9 Iran 12 5 Qatar 38 10 4.2

Maintaining Poles of Power in the Region

Foreign Policy experts have often argued that post 2014, since the Hindu nationalist Bhartiya Janata Party has won the General Elections in India, Prime Minister Narendra Modi has focused on West Asia and relations with West Asian countries have quickly escalated. (Burton, 2019). Foreign Policy experts have identified West Asia as a tripolar region, i.e. regarding Indian Foreign Policy approach, there are three power structures in West Asia. Some identify it as Saudi Arabia, Israel and Iran (2019) while some identify the axis as Arab Gulf Countries, Israel and Iran (Burton, 2019). Post 2014, PM Modi had visited capitals of all three powers i.e. Sunni, Jew and Shia respectively. • Saudi Arabia among the Gulf Countries accommodates largest number of Indian Diaspora i.e. around 2.5 million Indian citizens. • Israel can be seen as the most strategic partner in terms of defence co-operation and counter terrorism in West Asia. Israel has been supplied India with spare parts of Soviet made arms and equipment. Israel has also taken pro-Indian stand on the Kashmir issue and has backed India on various issues as well. Experts argue that new chapter of IndoIsrael relations were marked when PM Modi visited Israel in July 2017 and became first Indian PM to visit Israel. Furthermore, ties between two countries enhanced when in January 2018 Benjamin Netanyahu visited India first time since 2003 when he became PM.


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Why is it important to maintain equilibrium? • Saudi Arabia had met the loss of imports of Hydrocarbons from USSR and was top supplier of crude oil to India until 2015 (20 per cent)1. • Israel had quickly intruded into defence sector in India, when it supplied arms to India during Kargil issue. • Other than oil imports and Chabahar Port (complemented with International North and South Trade Corridor) Iran is strategically important to India because, Strait of Hormuz accommodates worlds important seaborne trade routes (mostly oil), it is an ally in fight against Taliban in Afghanistan and is emerging power in West Asia. The Gulf Countries are also important strategically important because GCC countries are India’s largest trade partners and accommodates around eight million Indian expatriate community which send 30 billion (US Dollars) as remittances to India. (Alam, 2017) 4.3

Defence Co-operation – The New Chapter in West Asia Engagement

Gulf countries can be termed as extended neighborhood of India. The historical and cultural ties between India and Gulf transformed to ‘Triple E’ in 21 st Century i.e. energy, expatriate and economy. The amount of energy imports from West Asia, the volume of Indian diaspora residing and the value of trade with Gulf countries make it necessary for Indian Military to establish its presence in Arabian Sea, Persian Gulf and West Asia. As mentioned earlier, defence co-operation between India and Gulf countries increased post ‘Delhi Declaration’ in January 2008 and ‘Riyadh Declaration’ in February 2010. (Roy-Chaudhury, 2018) India – Saudi Arabia In February 2014, when then Defence Minister and Crown Prince Salman bin Abdulaziz visited New Delhi, Memorandum of Understanding was signed on ‘Defence Co-operation’. Defence co-operation was further emphasized when PM Modi visited Riyadh in February 2016 and when Crown Prince and King Salman bin Abdulaziz Al Saud visited New Delhi in February 2019. A Joint Committee for Defence Co-operation which was setup in February 2012 conducted its fourth meeting in January 2019 in Riyadh. (Quamar, 2019) Furthermore, to enhance maritime security and co-operation, first naval drill was to be conducted between Saudi Arabia and India in March 2020 (PTI, 2019) which got cancelled due to outbreak of COVID 19. Riyadh and New Delhi find convergence on the need to ensure security in Indian Ocean and Arabian Sea. India – UAE 1

PM Modi visited Saudi Arabia twice, once in February 2016 and in October 2019. Saudi King, Mohammed bin Salman bin Abdulaziz Al Saud visited India in February 2019. In May 2016 Prime Minister Narendra Modi visited Tehran and in February 2018, Iranian President Hasan Rouhani visited India. Visit of Iranian Premiere was important because the lease contract of Shahid Beheshti Port was signed and publicly announced. Furthermore, there several announcements and deals made as well to bolster operationalization of Chabahar Port. Chabahar is the most important aspect of Indo-Iran relations. Between 2014-2018, Twenty-two MOUs were signed between India and Iran, most of them related to Chabahar Port. Chabahar Port is an important gateway of trade to Central Asia.


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India participated in the International Defence Exhibition (IDEX) organized in Abu Dhabi February 2017. Furthermore, UAE participated Defence Expo in Chennai, April 2018. The first naval exercise off the coast of UAE, between navies of Emirati and India was conducted in March 2018, the ‘Gulf Star I’. Second edition of a joint exercise between Airforce of the two countries, the ‘Desert Eagle II’ was conducted in May – June 2016 at Al Dafra Air Base, Abu Dhabi. (Quamar, 2019) Maritime Security, Counter Terrorism, Intelligence Sharing, and co-ordination among enforced authorities are fields where India, Saudi Arabia and UAE have convergence and mutual interest. India – Oman Oman was one of the first GCC countries to establish defence relations with India. Oman due to its geo – strategic location at mouth of Persian Gulf and Arabian Sea is an essential country to have defence ties with. Maritime security, again is an important field of convergence as well as anti – piracy operations in Indian Ocean. Oman provides berthing facilities to Indian Warships which patrol the Arabian Sea and Indian Ocean. ‘Duqm Port’ the most strategic port in Persian Gulf as of now, allows Indian warships to access the port for maintenance of its warships and vessels. The activity at Duqm Port not only allows India to enhance its naval activity in Persian Gulf, Arabian sea and Indian Ocean but also challenge the current increasing Sino activity in the region. Furthermore, Omani cadets and officers are provided training at National Defence Academy, Pune. Oman is a Gulf nation, who conducts military exercises with India across three forces of defence i.e. Army, Navy and Air Force. In March 2019, Indian Army and Royal Army of Oman conducted third edition of Joint Exercise ‘Al Nagah’ in Oman. In January 2017, ‘Eastern Bridge’ the joint exercise between Air Forces of two countries participated in Jamnagar, Gujarat. In December 2017, eleventh edition of Joint Naval Exercise, ‘Naseem Al Bahr’ was conducted, off the coast in Muscat. (Quamar, 2019) India – Kuwait In February 2020, Kuwait established a defence attaché office in New Delhi. Establishment of this office would lead to enhancement of defence co – operation and security ties between India and Kuwait as well as bolster participation of both countries in military events, exercises, exhibitions, conferences, etc (Chaudhary, 2020) India – Israel Unlike Gulf countries, Indian defence co-operation with Israel does not limit to military exercises and high bilateral level visits, etc. Israel is a major arms provider to India. Israel has been able to intrude into the Defence Industry of India, thus modernizing Indian military with arms and equipment. Israel is best known to enhance the missile systems of Indian Defence forces. ‘Arms trade will remain bedrock’ for bi – lateral ties between India and Israel. (Harsh Pant, September 2019) Between 2008 – 2019 Israel provided India with aircrafts, Air Defence Systems, Missiles, Radars and Sensors. Furthermore Indo – Israel interests converge on collaboration on space co-operation and cyber security. (Harsh Pant, September 2019) In 2017, a two-billion-dollar deal was signed between India and Israel for buying MRSAM missiles (Gady, 2017) and in 2018, an additional contract of 770 million US$ was signed for BARAK 8 Air and Missile defence systems for Indian Navy (Gady, 2018). In July 2018, India and Israel participated in; Gulf Flag I’ and aerial training exercise. (2018)


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Indian maritime diplomacy with Gulf Countries

Indian Navy can be noted as a net security provider in the Indian Ocean Rims. Since Gulf countries are observed as extended neighborhood of India, India does act as security provider to its extended neighborhood as well. As mentioned earlier in this chapter, due to large amount of trade and oil imports, and volume of Indian diaspora Indian Navy has conducted active expansion and operationalization in Arabian Sea. The friendly maritime ties of Indian Navy with Gulf Navies are due to the personnel training India imparts to them as well as hydro graphic support it provides to Gulf Navies. Furthermore, all Gulf Navies are active members Indian Navy conceived ‘Indian Ocean Navy Symposium’ a biennial forum of Navy Chiefs of Indian Ocean littorals. With spike in piracy in Gulf of Aden, Indian Navy was significantly involved in anti – piracy operations. Maritime diplomacy which was codified in 2007, has institutionalized in two aspects: 1. Memorandums of Understanding and agreements between India and gulf nations, the establishment of Joint Committee on Defence Co-operation 2. Naval training imparted, regular ship visits to Indian Ocean Rims, intelligence sharing and regular naval exercises. (Singh, 2017) 4.5

Intelligence sharing

Intelligence sharing not only implies sharing vital data, sources and information but also using the data to avert any threat perception. Intelligence sharing between India and Gulf countries and co – ordination among enforcing agencies and authorities have led to important extraditions and deports to India. Important deportations include Abu Jindal (2008 Mumbai Attack Planner) from Saudi Arabia, Mansed Bin Mohammed (Islamic State recruiter) from Qatar, Nicky Joseph (Islamic State recruiter) from UAE and Abdul Wahid Sidibapa (Indian Muhajuddin financer) from UAE. Furthermore, from 2014 – 2017 thirty Indians were deported under charges from terrorism. (Siyech, 2017) Of these, seventeen were deported from UAE alone. From August - December in 2018 four IS sympathizers were deported from UAE. (Chaudhary, 2018) 4.6

Problems Faced by Indian Laborers in Gulf Countries

Two major problems faced by Indian labourers are: 1. Kafala system: Alienation through labour laws 2. Arabization/Indigenization of labour force Kafala system is often regarded as ‘Devil’ amongst Indian migrant labourers in Gulf countries. The system operates all over the Gulf region. The system implies that during steps of securing visa, legal documentation, getting hired, till his stay, his living expenses, food, accommodation, etc are looked up by his employer. But due to inducive corruption, abusive practices, no checks and balances, workers are getting exploited by their employers due to Kafala system. Under this system, workers are not allowed to change their jobs unless their original sponsor allows it. Hence it even leads to a situation where visas and passports of workers are confiscated and thus illegal migrants are left without any sustenance. Hence issue of ‘illegal migrants’ is also related to Kafala system as well. Furthermore, due to Kafala system, female migrant workers often have to face discrimination and sexual harassment. (Mukherjee, 2016)


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Kafala System and International Law 1. Kafala system has been condemned by ILO (Pethiyagoda, 2017). The situation of expatriate workers in Gulf Countries regularly fail to adhere to ILOs Declaration of fundamental principles and: a. Right to Work b. Right to Freedom of Association c. Right to collective bargaining d. Elimination of all forms of forced labour 2. Gulf States have not ratified to Freedom of Association and Protection of Right to Organize Convention which has been adopted by International Labour Convention in 1948. 3. Furthermore, Kafala system often complements a legal system which fails to safeguard rights of expatriate workers Saudization of Workforce Nitaqat was first implemented in 2011. Its main aim was to create 1.12 million new jobs. In 2012, if a company had less than 50 percent of Saudi nationals in workforce, then a monthly fee of 200 Saudi Reyal was to be paid for each migrant worker. (Indian Migration to Gulf Countries: Issues and Challenges, 2015) Saudi government also aims to employ Saudi nationals to 92 percent of the nascent jobs which will be created. (Kohli, 2015) Similar policies have been implemented in UAE – Emiratization, Bahrain – Bahrainisation, Oman – Omanization. Oman was all set to remove migrant workers from Government jobs this year but delayed it to next fiscal year. (Sibal, 2020) Qatar has been a major example and model in Gulf for reforming its laws and policies for expatriate workers: • In 2016, Qatar government bought a new labour law which established a state-run grievance and redressal system for workers • According to Domestic Employment Law, domestic workers are subject to ten hours per day work; one day leave per week; annual leave for three months; compulsory payment at end of each month • In October 2017, Qatar concluded technical co – operation accord with ILO according to which, it had set minimum wage and would abolish Kafala system • In April 2019, Qatar ratified International Covenant on Civil and Political Rights and International Covenant on Economic, Cultural and Social Rights. These ratifications meant right to freely choose employment; fair wages; safe working conditions. (Abraham, 2018) 4.7

Foreign Interventions

China Duqm Port and Khalifa Port Oman exports around 90% of its oil to China. Oman is an important member of Chinese Belt and Road Initiative as well. In 2016, an agreement was signed between Oman and China to develop an Industrial Park at very geo – strategic location of Duqm. This project is aimed to receive an investment of 10.7 billion US$ by 2022. This will be first major


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investment by any country in Oman. Moreover, China plans to setup oil refinery at petrochemical complex of Duqm. In December 15, 2019, 49 per cent stakes of Oman Electricity Transmission were sold to China’s State Grid International Development. (Ramajuna, 2019) Inauguration of CSP Abu Dhabi Terminal at Khalifa Port, a joint venture between COSCO Shipping Ports and Abu Dhabi Ports in December 2018 to act as a link to BRI was a major landmark in China’s Gulf Engagement. This terminal is region’s largest freight station. Moreover, COSCO has a global network of 37 ports. CSP invested around 299 million US$ for construction and machinery at the terminal. UAE is China’s largest non – oil trading partner. (Debusmann, 2018) After Oman and UAE, China is trying to establish close relations with Iran also. China was in support of Iran and advocated flexibility on part of every stakeholder during JCPOA P5 + 1 talks. Furthermore, it continued to have cordial relations with China instead of withdrawal of US from JCPOA and sanctions re – imposed by Washington. Furthermore, China National Petroleum Corporation was granted contract by Iran with around 85 million US$ to drill oil wells in Southern Iran. China is also aiming to decrease its dependency on oil and opting for alternative resources. Although Iran might be next immediate neighbour of India, and Tehran and New Delhi have entered a new energy and trade relations post operationalization of Chabahar Port, China enjoys very minimal trade deficit with Iran. Unlike India, who experiences huge trade deficit with Tehran, Beijing enjoys an equal imports and exports ratio with Tehran. (Singh, 2020) 4.8

US-China Trade War and Depleting Oil Prices

US – China trade war implies increasing tariffs on each - others imports. Such trade wars impact ability of consumer to buy goods. Once that ability is affected, consumer buys less goods, thus leading to an economic slowdown. US due to shale revolution is largest producer of oil. Since China declined its oil imports from US, China turned to WANA region to fulfil its energy needs. (Rapier, 2019) With a trade war effecting oil supplies and decreasing oil prices, many Gulf countries had to use their Sovereign Wealth to fill the deficit and gaps. India is dependent on Gulf Countries for 51 per cent of its energy requirements. Hence, US – China trade war led to disruptions in oil supplies, further impacting Energy security of countries dependent on West Asian countries for Hydrocarbons. 4.9

US’s Withdrawal from the JCPOA and the Killing of Qassem Soleimani

West Asia has never been as multipolar as it is now. Although Obama Administration did signal to disengage from the region, Trump Administration through withdrawal from JCPOA and killing of Qassim Soleimani has just worsened the situation in West Asia. Due to sanctions on Iran, since 2003 the project of Chabahar Port got delayed and its first phase was finally completed in 2019. With withdrawal from JCPOA and re-imposing sanctions, India got a waiver and exemption from sanction until May 2019. Oil imports from Iran gradually decreased after May 2019. Hence India had to look for other options such as importing oil from Russia, USA, etc. Military interventions of US in the region had already affected Indian trade and migration of Indians to Iraq. Furthermore, by killing Al Quds Forces leader, Qassim Soleimani in January 2020, situation in West Asia has become more vulnerable and sensitive. Any disruption in the region causes disruptions in prices of oil. Due to production cuts oil prices must have gone high (but could not because of pandemic). Any turbulence in the region increases vulnerability of seven to


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eight million Indian diaspora. November 2018 - May 2019, 80 percent of Iran imports included crude oil. Furthermore, 1/5th of India’s oil needs were met by Iran. Prior to May 2019, Indian oil trade with Iran was around 2.5 billion tonnes. However due to sanctions by US it reduced to one million tonne post May, 2019. Hence recent US interventions have not only disrupted India’s energy security but also affected India’s bi-lateral relations with Iran. (Krishnan, 2020) 4.10 COVID Diplomacy Outbreak of Novel Coronavirus (COVID 19) in Wuhan (China) and subsequent declaration of the situation as pandemic has surely disturbed the International Order. With a global shutdown and lockdown across countries, global trade has come to a point of stagnation. However, with challenge has come an opportunity for India to bolster and enhance its relations with the Gulf Countries. India’s COVIDIAN Diplomacy with West Asian countries involves: • Supporting West Asian countries through providing medical support, equipment, medicines, etc • Evacuating Indians due to Gulf countries requesting repatriation Medical Assistance 1. Kuwait: On special request made by Kuwait, a medical rapid response team consisting of fifteen doctors, and other healthcare professionals reached Kuwait on April 10. The team for two weeks provided medical assistance for testing and treatment as well as imparted medical training to Kuwaiti personnel. (Javed, 2020) 2. UAE: Similarly, on request of UAE government, a team of 88 doctors and several healthcare professionals are bound to leave for Emirates. Recognizing brotherly ties between UAE and India, the Emirati sent seven tonnes of medical supplies to India. (Laskar, 2020) 3. Oman: After bi-lateral talks between Oman King and Narendra Modi (PTI, 2020), goods from India, including foodstuff and various other goods had reached Sohar Port in Oman on April 19 – 20 (2020). 4. Medical Assistance (Gupta, 2020):

2

Country

Medical assistance provided

UAE

428 lakh HCQ2 Tablets, ten tonnes of HCQ ingredients, 220 million paracetamols

Kuwait

7.7 million paracetamols

Bahrain

Fifteen lakh HCQ tablets

Jordan

0.5 tonnes of HCQ ingredients

HCQ – Hydroxychloroquine, the anti – malaria drug


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Oman

Ten lakh HCQ tablets

Qatar

80,000 HCQ tablets

Saudi Arabia

0.5 tonnes of HCQ ingredients

39

5. Israel: On April 10, Israeli PM offered his gratitude for India’s help to Israel. This help was a five-tonne shipment sent from India to Israel which included medicines and ingredients for chloroquine and hydroxychloroquine tablets. (Mishra, 2020) Repatriating Bahrain nationals On April 19, 125 Bahrain nationals were evacuated from Pune through a Gulf Air flight and were boarded to Chennai. From Chennai, with other Bahrain nationals on board, Bahrain nationals were heading back to their home. Among 125 Bahrain nationals, most of them were students. A total of 167 Bahrain nationals live in India, in Pune, Mumbai, Delhi, Kochi, Hyderabad and Chennai. It was evident that all 125 stranded Bahrain nationals were subject to medical testing since one of them could not board flight due to High Temperature. (Bari, 2020) Bringing Indians Back . Indian diaspora in UAE constitutes around 30 per cent of Emirates total population. Following strict restrictions given by UAE and Kuwait against those countries who are not taking their nationals back, New Delhi decided to bring its nationals back. By May 3, 1,50,000 Indians registered to be repatriated in UAE (Chaudhary, 2020) and around three lakh Indians registered in Gulf countries by May 5. (News, 2020) Under the second phase of Vande Bharat Mission there will be 149 flights for 31 countries. The second phase would begun from May 16 – May 22. Flights for Gulf countries: 1. UAE – 11 2. Saudi Arabia – 9 3. Oman – 8 4. Qatar – 6 5. Bahrain – 2 6. Kuwait – 2 Cost of each flight from West Asia would be Rs. 15,000. (Tripathi, 2020) 5

Conclusions

Post 2014, due to escalation of ties between India and Gulf countries, few characteristics were observed in India’s engagement in West Asia. India has always resorted to certain ambivalence and silence over geo – political issues and internal issues in West Asia. India remained silent during Arab Spring, and is neither interfering in regional politics nor taking stand between regional rivalries. West Asia now witnesses many conflicts, Sectarian conflict between Shia and Sunni: Significant population of both sects reside in India, Saudi – Iran Rivalry and proxy wars, Israel – Iran rivalry over Iran backing Hamas, Hezbollah and Houthi, and UAE and Kuwait boycotting Qatar. Taking stand on any one of them could


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trigger communal disharmony in India, which prevails most of the times. If New Delhi interferes in any of the regional conflicts, it defence co-operation, safety of Indian Diaspora, remittances and energy security, will all be at stake. Hence in a multipolar West Asia India’s policy is to maintain equilibrium and balance with all Gulf Nations. Bilateralism: Unlike East Asia and South Asia, Indian engagement in West Asia is highly bi-lateral. Multilateral forums which India is part of in South Asia and South East Asia are SAARC – South Asian Association of Regional Co-operation, ASEAN FTA – Association South East Asian Nations Free Trade Agreement, BBIN – Bhutan, Bangladesh, India Nepal, SCO – Shanghai Co-operation Organization, BIMSTEC – Bay of Bengal Initiative for Multi Sectoral Technical and Economic Co – operation, MEKONG – GANGA Co – operation. However, for West Asia there is no specific multilateral forum. A more peculiar fact is, GCC is India’s largest trading partner but, there is no free trade agreement with GCC. But an internal turbulences and multipolar West Asia might be reason for Bilateral approach of Delhi towards West Asia. Defence Co-operation: Defence Co-operation is a new area where convergence between India and Gulf has been found. To strengthen position and leverage in Persian Gulf, India does have an institutionalized Maritime Diplomacy. This security co – operation is important for India to challenge aggressive expansionist policy of China in West Asia. Through gestures of solidarity and evacuating Indians in West Asia, New Delhi through its COVIDIAN Diplomacy might further acquire deep and profound position as global player in Gulf Countries. Furthermore, Mission Vande Bharat might be greatest evacuation missions after airlift of stranded Indians in Kuwait, 1990. 6

Challenges for New Delhi

1. US – Iran war: After withdrawal from JCPOA and killing Qassim Soleimani, a virtual war between Iran and US will be prevail. US has been and will be important ally for India to challenge Chinese domination, whereas Iran is immediate neighbour of India along with whom India has just ventured new energy and trade relations through Chabahar Port. New Delhi will face a policy dilemma soon i.e. with whom to ally with or just practice strategic autonomy when two of its closest allies would go into non – traditional war with each other. 2. China and Pakistan: The Sino – Pak alliance has been irritant for India since a long time. With Chinese ports at Gwadar (Pakistan), Hambantota (Sri Lanka) and Khalifa (Abu Dhabi), Chinese presence in Arabian Sea has increased. It could now monitor Indian activity as well. Furthermore, operationalizing ties with between Oman – China and Iran – China would be geo-strategic failure for New Delhi. 3. Depleting Oil Prices: Energy security still remains top priority. Due to depleting oil prices, policy of production cuts was adopted by Gulf. Hence India now has to decrease its 51 percent of oil dependence of Gulf and look out for other options. 4. Post –COVID era: COVID 19 and subsequent Pandemic has led to anti – globalized policies being implemented all over the world, post pandemic would not only be challenging for India but Gulf countries as well. Since oil prices have decreased drastically due to global shutdown, what policy will OPEC adopt would directly affect India’s Energy security. 5. Anti-India campaigns and Islamophobia: In April-May 2020, cases were reported in UAE where three Indians were suspended from their jobs due to Islamophobic occurrences.


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(Parashar, 2020) Although this might not be a strategic constraint, it is important to acknowledge the sheer anti-India campaigns on social media in past few months. A fake twitter handle, posing itself as Mona bint Fahad ( daughter of Oman’s Deputy PM Sayyid Fahd) circulated message about expelling Indians from Oman, if persecution of Muslims does not stop. However, all differences were cleared out between India and Gulf countries like Saudi Arabia, Oman, Kuwait and Qatar when the four countries highlighted their sheer concrete relations with India. (Chaudhary, 2020)However, it all took a tweet from Prime Minister of India and several requests from Indian Missions and embassies in Gulf Countries to Indian expatriates to refrain from any Islamophobic occurrence on or off social media. (Kumar, 2020) It must be acknowledged that any public relations cell/wing of any foreign state/non-state actor could be behind this social media campaigns against New Delhi and creating strife and discord in Indo-Gulf relations. 7

Policy Recommendations

India must continue and escalate it’s defence co – operation in Persian Gulf and assume the role of sole security provider in Indian Ocean. This would lead to challenging the Sino expansionist policy in the region. Furthermore, India must deepen the existing ties with Israel and bolster defence co-operation as well as space co-operation. Indo-Israel research and development will create new avenues in Indo-Israel relations. India pursuits a doctrine of ‘Strategic Autonomy’ in the region. However, with US engagement in the region, China increasing its presence in Arabian Sea and Persian Gulf, it might not be possible for India to pursue its policy to pursue strategic autonomy under tremendous foreign intervention. Recognize and formulate: New Delhi must recognize the importance of West Asia now and formulate policies to trigger a multi forum discussion avenues and enhance cultural ties with countries in West Asia. To prevent alienation of migrant workers in West Asia, India must make consular access in the region more flexible and frequent. As well as take the issue to international organizations as well. Furthermore, states and New Delhi must impart skill training and create more opportunities at home. Considering the events on social media-Islamophobia, A two way strategy needs to be mobilized by New Delhi. First, Indian expatriates must refrain from tweeting any instances which could possibly hurt religious sentiments and New Delhi must tap the fake accounts and the cyber cells which conduct such cyber operations. In post –COVID era, India must keep providing West Asia and other needy countries with gestures of solidarity to position itself as a model of assistance in region. References 1. Abraham, Rhea. 2018. Getting Qatar Ready For 2022: Reforms in Labour Immigration Policy and options for India. mei.edu. [Online] December 4, 2018. 2. Ahamd, Talmiz. 2015. India and the Gulf Region. [book auth.] C Raja Mohan, Srinath Raghavn David Malone. Oxford Handbook of Indian Foreign Policy. s.l. : Oxford University Press, 2015, pp. 547 - 548.


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3. Ahmad, Talmiz. 2015. India in Gulf Region. [book auth.] C Raja Mohan, Srinath Raghavan David Malone. Oxford Handbook of Indian Foreign Policy. s.l. : Oxford University Press, 2015, pp. 542 - 545. 4. Ahmad, talmiz. 2017. Introduction. Persian Gulf 2016 - 17, Indias relation with the region. s.l. : Pentagon Press, 2017, pp. 10 - 22. 5. Ahmad, Talmiz. 2017. Introduction. [ed.] P.R Kumaraswamy and Meena Singh Roy. Persian Gulf 2016 - 17, Indias relations with the region . s.l. : Pentagon Press, 2017, p. 9. 6. —. 2015. The Gulf Region. [book auth.] David MAlone and Srinath Raghavan C Raja Mohan. Oxford HAndbook of Indian Foreign Policy. s.l. : Oxford University Press, 2015, pp. 540 - 542. 7. Alam, Anwar. 2017. India’s Strategic Vision About West Asia and Its Limitations. https://www.mei.edu/. [Online] March 2017. https://www.mei.edu/publications/indias-strategic-vision-about-west-asia-and-its-limitations. 8. Arun, Swati. 2018. China. [book auth.] P.R. Kumaraswamy and Meena Singh Roy. PERSIAN GULF 2016-17, India’s Relations with the Region. 2018, p. 216. 9. Bari, Prachir. 2020. 125 stranded Bahrain nationals evacuated from Pune amid lockdown. Hindustan Times. [Online] April 19, 2020. [Cited: May 10, 2020.] https://www.hindustantimes.com/india-news/125-stranded-bahrain-nationals-evacuated-from-pune-amid-lockdown/story-6Bel7MyrT1kiyAub1A9VxJ.html. 10. Burton, Guy. 2019. India's Look West Policy under Modi . Middle East Institute. [Online] August 2019. https://www.mei.edu/publications/indias-look-west-policy-middle-east-under-modi. 11. 2020. Cargo ship arrives in Oman with goods from India. Times of Oman. [Online] April 20, 2020. [Cited: May 8, 2020.] https://timesofoman.com/article/3014004/oman/transport/cargo-ship-arrives-in-oman-with-goods-from-india. 12. Chaudhari, Pramit Pal. 2015. Israel and India. [book auth.] Arundhati Ghose. West Asia in Transition. s.l. : IDSA and DPG (Institute od Defence Studies and Analysis and Delhi Policy Group) , 2015. 13. Chaudhary, Dipanjan Roy. 2020. 150000 Indians register to be repatriated from UAE. Economic Times. [Online] May 3, 2020. [Cited: May 10, 2020.] https://economictimes.indiatimes.com/nri/nris-in-news/150000-indians-register-to-be-repatriated-from-uae/articleshow/75522824.cms. 14. —. 2020. Kuwait joins Saudi-Qatar-Oman to reject anti-India propaganda. Economic Times. [Online] April 29, 2020. [Cited: May 12, 2020.] https://economictimes.indiatimes.com/news/politics-and-nation/kuwait-joins-saudi-qatar-oman-to-reject-anti-india-propaganda/articleshow/75416569.cms. 15. —. 2020. Kuwait opens defence attaché office in India to ramp up security cooperation. Economic Times. [Online] February 20, 2020. [Cited: May 10, 2020.] https://economictimes.indiatimes.com/news/defence/kuwait-opens-defence-attach-office-in-india-to-ramp-up-security-cooperation/articleshow/74230367.cms?from=mdr. 16. —. 2018. UAE quietly deporting IS sympathisers of Indian origin. Economic Times. [Online] December 6, 2018. [Cited: May 10, 2020.] https://economictimes.indiatimes.com/news/politics-and-nation/uae-quietly-deporting-is-sympathisers-of-indian-origin/articleshow/66963305.cms?from=mdr. 17. Debusmann, Bernd. 2018. China's CSP and Abu Dhabi Ports launch new terminal at Khalifa Port. Arabian Business. [Online] December 11, 2018. [Cited: May 10, 2020.] https://www.arabianbusiness.com/transport/409521-chinas-csp-abu-dhabi-ports-launch-new-terminal-at-khalifaport. 18. Gady, Franz Stefan. 2017. India, Israel Conclude $2 Billion Missile Deal. The Diplomat. [Online] April 11, 2017. [Cited: May 10, 2020.] https://thediplomat.com/2017/04/india-israel-conclude-2-billion-missile-deal/.


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19. —. 2018. Israel to Supply Missile Defense Systems to India’s Navy for $770 Million. The Diplomat. [Online] October 25, 2018. [Cited: May 10, 2020.] https://thediplomat.com/2018/10/israel-to-supply-missile-defense-systems-to-indias-navy-for-770-million/. 20. Gupta, Shishir. 2020. PM Modi gets a SOS message from UAE for Indian healthcare personnel. Hindustan Times. [Online] April 28, 2020. [Cited: May 10, 2020.] https://www.hindustantimes.com/india-news/pm-modi-gets-a-sos-message-from-uae-for-indian-healthcarepersonnel/story-puMmZC60VJR7MWP0sYMtOK.html. 21. Hameed, Sameena. 2017. Chamgimg Energy scenario: Geopolitical implications for West Asia. [ed.] Sanjay Singh. West Asia in Transition VOlume II. s.l. : IDSA, DPG and Pentagon Press, 2017, pp. 36 - 41. 22. Harsh Pant, Ambuj Sahu. September 2019. Israel’s Arms Sales to India:. s.l. : Observer Research Foundation, September 2019. pp. 5 - 11, Issue Brief. 23. —. September 2019. Israel’s arms sales to India: Bedrock of a strategic partnership. s.l. : Observer Research FOundation, September 2019. p. 11, Issue Brief. 24. 2019. India in pivotal geographies: West Asia. orfonline.org. [Online] August 2019. https://www.orfonline.org/expert-speak/india-in-pivotal-geographies-west-asia-54432/. 25. India, Press Information Bureau pf. 26. 2018. Indian commandos in Israel for major military drill. Economic Times. [Online] July 12, 2018. [Cited: May 10, 2020.] https://economictimes.indiatimes.com/news/defence/indiancommandos-in-israel-for-major-military-drill/articleshow/61581736.cms. 27. Indian Migration to Gulf Countries: Issues and Challenges. Naresh, Sudhaveni. 2015. 2015, International Research Journal of Commerce , Arts and Science, p. 82. 28. Javed, Nilanjana. 2020. Rapid response team from India reaches Kuwait to combat COVID-19. Gulf News. [Online] April 11, 2020. [Cited: May 10, 2020.] https://gulfnews.com/world/gulf/kuwait/rapid-response-team-from-india-reaches-kuwait-tocombat-covid-19-1.1586619932751. 29. Kohli, Neha. 2015. Indian migrants in West Asia. [ed.] Arundhati Ghose. West Asia in Transition. s.l. : IDSA and DPG, 2015, Vol. I, pp. 42 - 43. 30. —. 2015. Indian Migrants in West Asia. [ed.] Arundhati Ghose. West Asia in Transition. s.l. : IDSA and DPG, 2015, p. 45. 31. Krishnan, Vishakh. 2020. Iran's tole in Energy calculus of India. s.l. : Centre for Land and Warfare Studies, 2020. p. 2, Issue Brief. 32. Kumar, Ashwani. 2020. Indian missions in GCC warn against hate speech. Khaleej Times. [Online] April 23, 2020. [Cited: May 12, 2020.] https://www.khaleejtimes.com/news/general/indian-missions-in-gcc-warn-against-hate-speech-. 33. Laskar, Rezaul. 2020. India clears travel of 88 healthcare professionals to UAE, emirates send 7 tonnes of medical supplies. Hindustan Times. [Online] May 2, 2020. [Cited: May 8, 2020.] https://www.hindustantimes.com/india-news/india-clears-travel-of-88-healthcare-professionals-to-uae-emirates-send-7-tonnes-of-medical-supplies/storyiJ9HvvdiB6RbKOFCPgOh0H.html. 34. Malone, David, Mohan, C Raja and Raghavan, Srinath. 2015. India and The World. [book auth.] C Raja Mohan, Srinath Raghavan David Malone. The Oxford Handbook of Indian Foreign Policy. 2015. 35. Mishra, Harinder. 2020. Netanyahu thanks India for delivering hydroxychloroquine to Israel. Outlook. [Online] April 11, 2020. [Cited: May 10, 2020.] https://www.outlookindia.com/newsscroll/netanyahu-thanks-india-for-delivering-hydroxychloroquine-to-israel/1797589. 36. Mukherjee, Rina. 2016. Great migrant hope. HIMAL - South Asian. [Online] August 24, 2016. [Cited: May 8, 2020.] https://www.himalmag.com/great-migrant-hope-indian-migrant-laborers-jordan-west-asia-kafala/.


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37. News, 18. 2020. 3L Register in Gulf Nations as India Readies for Vande Bharat Mission to Bring Back Stranded Nationals. News 18. [Online] May 6, 2020. [Cited: May 10, 2020.] https://www.news18.com/news/india/3-lakh-register-in-gulf-nations-as-india-readies-forvande-bharat-mission-to-bring-back-its-nationals-stranded-abroad-2607273.html. 38. Parashar, Sachin. 2020. Govt concerned about offensive social media posts in Gulf. Economic TImes. [Online] May 4, 2020. [Cited: May 12, 2020.] https://timesofindia.indiatimes.com/india/govt-concerned-about-offensive-social-media-posts-in-gulf/articleshow/75524772.cms. 39. Pethiyagoda, Kadira. 2017. Supporting Indian workers in. s.l. : Brookings DOha Centre, 2017. pp. 2 - 3, Policy BRief . 40. PTI. 2019. India, Saudi Arabia to hold first joint naval drills in early March. The Hindu. [Online] October 31, 2019. [Cited: May 12, 2020.] https://www.thehindu.com/news/international/india-saudi-arabia-to-hold-first-joint-naval-drills-in-early-march/article29840104.ece. 41. —. 2020. PM Modi speaks to Sultan of Oman on COVID-19 crisis. Times of India. [Online] April 7, 2020. [Cited: May 10, 2020.] https://timesofindia.indiatimes.com/india/pm-modispeaks-to-sultan-of-oman-on-covid-19-crisis/articleshow/75029888.cms. 42. Quamar, Dr. Md. Muddassir. 2019. Growing Indo - Gulf Defence Co-operation and Future aspects. Raksha Anirveda. OCTOBER DECEMBER, 2019, p. 48. 43. —. 2019. Growing Indo - Gulf Defence Co-operation and Future aspects. Raksha Anirveda. OCTOBER DECEMBER, 2019, p. 49. 44. Ramajuna, Kanchan. 2019. China Factor to Watch Out for as India & Oman. CLAWS focus. [Online] December 22, 2019. https://www.claws.in/china-factor-to-watch-out-for-as-indiaoman-expand-strategic-partnership/. 45. Rapier, Robert. 2019. How The Trade War Impacts The Oil Industry. Forbes. [Online] August 25, 2019. [Cited: May 10, 2020.] https://www.forbes.com/sites/rrapier/2019/08/25/how-thetrade-war-impacts-the-oil-industry/#6b32442f5ed2. 46. Roy, Meena Singh. 2015. Geo-Political Trends in Iran: Prospects for Re-energising India-Iran Relations. [book auth.] Arundhati Ghose. West Asia in Transition . s.l. : Institue of Defence Studies and Analysis, Delhi Policy Group, 2015. 47. Roy, Meena Singh Roy and Rajorshi. 2018. Russia. [book auth.] P. R. Kumaraswamy and Meena Singh Roy. PERSIAN GULF 2016-17, India’s Relations with the Region. s.l. : PENTAGON PRESS, 2018, pp. 255 - 271. 48. Roy, P.R. Kumaraswamy and Meena. 2018. Persian Gulf 2016-17: India's Relation with Gulf Countries. s.l. : Pentagon Press, 2018. 49. Roy-Chaudhury, Rahul. 2018. India and the Gulf Region: Building strategic partnerships. India Inc. [Online] August 23, 2018. [Cited: May 12, 2020.] https://indiaincgroup.com/india-andthe-gulf-region-building-strategic-partnerships-india-global-business/. 50. Sangha, Nirmolika. 2020. Political Crisis in Iraq: Challenges for India. CLAWS (Centre for Land and Warfare Studies) Web Site . [Online] January 31, 2020. [Cited: April 19 , 2020.] https://www.claws.in/political-crisis-in-iraq-challenges-for-india/. 51. Sibal, Sidhant. 2020. Oman policy to replace expats likely to implement next year, blue collar Indian workers not to be impacted. WION. [Online] May 2, 2020. [Cited: May 10, 2020.] https://www.wionews.com/india-news/oman-policy-to-replace-expats-likely-to-implementnext-year-blue-collar-indian-workers-not-to-be-impacted-296210. 52. Singh, Abhijit. 2017. India's Middle Eastern Naval Diplomacy . mei.edu . [Online] July 27, 2017. https://www.mei.edu/publications/indias-middle-eastern-naval-diplomacy. 53. Singh, Manjari. 2020. Leveraging Energy Requirements: Deals with Iran: China way. Scholar Warrior. Spring Edition, 2020, pp. 54 - 56. 54. Siyech, Mohammed Sinan. 2017. India - Gulf Counter Terrorism Operation. mei.edu. [Online] December 21, 2017. https://www.mei.edu/publications/india-gulf-counterterrorism-cooperation.


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55. Tripathi, Ashutosh. 2020. 149 flights to bring back Indians from 31 nations between May 16-22: Sources. Hindustan Times. [Online] May 12, 2020. [Cited: May 13, 2020.] https://www.hindustantimes.com/india-news/149-flights-to-bring-back-indians-from-31-nations-from-may-1622-sources/story-cmyHwBaOfZs2PfMPhcl0eM.html. 56. Turmoil in the Middle East. Singh, Kuldip. 2020. 2020, Scholar Warrior, p. 31 . 57. Wedhawan, Meher. 2019 . Evolution of India's West Asian Policy . orf online . [Online] October 2019 . https://www.orfonline.org/expert-speak/evolution-india-west-asian-policy-57176/. 58. Widmark, Otto. 2015. External Powers in West Asia and North Africa. [book auth.] Arundhati Ghose. West Asia in transition. s.l. : IDSA AND DPF, 2015, pp. 57 - 59. 59. â&#x20AC;&#x201D;. 2015. Role of External Powers in West Asia and North Africa. [book auth.] Arundhati Ghose. West Asia in Transition. s.l. : IDSA and DPG, 2015, pp. 52 - 55. 60. WIdmark, Otto. 2015. Role of External Powers in West Asia and North Africs. [book auth.] Arundhati Ghose. West Asia in Transition. s.l. : IDSA AND DPG, 2015, pp. 55 - 57.


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Threat of Israeli Annexation over Palestine and the Indian Position Manohar Samal1 1Research

1

Analyst, Internationalism C/O AbhiGlobal Legal Research & Media LLP manohar@internationalism.co.in

Introduction and History

A 140 square mile stretch of land, popularly referred to as the “Gaza Strip”, located between Egypt and Israel along the Mediterranean Coast has witnessed violence, military operations and protest since several decades (Marks, 2018). Israel was not declared as a State till the year 1948 and the territory was controlled by Palestine till that time. However, one day after the declaration of Israel as a State, the 1948 Arab- Israeli War took place and at the end of this war, control of the Gaza Strip was handed over to Egypt leading to a mass influx of more than 700,000 Palestinians who had to flee and settle in refugee settlements in the Gaza Strip as easy passage was not granted to them in any of the neighbouring nations (Marks, 2018). In the year 1967, an increase in skirmishes along Israel’s Borders led to the Third ArabIsraeli War which is also popularly referred to as the “Six Day War” (Editors, 2010). The war ended due to the efforts of the United Nations in brokering a cease- fire instrument. In 1993, the Oslo Accords was signed between the Israeli and Palestinian leaders where the removal of Israeli troops from Palestinian population centers within a five year transitional period was agreed upon and in return for this, Palestine promised to end anti- Israeli violence (Global Policy Forum, 2020). Although the end of the transitional period should have led to an agreement based upon United Nations Security Council Resolutions 242 and 338, denial of economic cooperation in a manner that would benefit both regions, blockade of infrastructure development, denial of political autonomy to Palestine (Gaza Strip) and sabotaging of transport and communication by Israel resulted in uprisings and ultimately, failure of the Oslo Accords (Weissbach, 2004). The conflict escalated even further after an Islamist political group referred to as “Hamas” occupied the Gaza Strip (Marks, 2018). The conflict between Israel and Hamas is evident from Operation Cast Lead, Operation Pillar of Defense and Operation Protective Edge (Marks, 2018) and the 2018 Gaza- Israel Clashes (BBC News, 2019). 2

Recent Issues

Israeli- Palestinian events of 2018 has raised severe global concerns. The incessant expansion and intervention of Israel on the West Bank which includes a host of activities such as enforcement of severe and discriminatory restrictions on the basic human rights of Palestinian populaces, prohibition on movement of goods and people from the Gaza Strip and facilitation of illegal transfer of Israeli citizens to settlements in the occupied regions of the West Bank led to scathing protests and demonstrations which led to use of extreme force by the Israeli Government (Human Rights Watch, 2019). Air and artillery strikes leading to significant loss of life and property were a result of such extreme force by the Israeli


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Government. Even though the State of Palestine was formed in the year 1988 and NonMember Observer status was granted to it by the United Nations in 2012, conflict and skirmishes has been incessant due to Israel’s interference and plans of annexation (United Nations, 2020). On 28 January, 2020, the Middle East Peace Plan popularly also connoted as “Trump’s Middle East Plan” was unveiled by the United States of America and since then, it has been subject of acute criticism (Haddad, 2020). The Middle East Peace Plan aims to redraw the boundaries in a manner to formalize the illegal annexation of settlements by Israelis in the Jordan Valley by including them in Israeli territory, recognising Jerusalem as the undivided capital of Israel and at the same time, the capital for the future State of Palestine, complete demilitarization of Palestine, denial of return of Palestinian refugees to Israel in contravention to the principle of non- refoulement and an economic plan to facilitate investments of more than 50 Billion US Dollars over the next ten years in and the development of a port and an airport in Palestinian territories (Haddad, 2020). Needless to say, the Middle East Peace Plan is entirely prejudiced towards furthering the interests of Israel and only meagre consideration to interests of Palestine has been showcased through this Plan. Immediate outbreaks of protests by Palestinians took place as soon as this Plan was officially announced. Up till now, the Plan has witnessed brutal criticism globally and the largest protest was organized on 01st July, 2020, the date on which the official annexation of 30% of the West Bank by Israel was supposed to occur (People’s Dispatch, 2020). In fact, it would not be wrong to include the Middle East Peace Plan with the list of other failed instruments that aimed to resolve the Israeli- Palestinian conflict such as the Belfour Declaration 1917, Resolution 181 of 1947, Resolution 194 of 1948, Resolution 242 of 1967, Resolution 478 of 1980, Aslo Accords 1993 and the Arab Peace Initiative 2002 (Haddad, 2020). Israeli experts have also raised a multitude of concerns of Israel’s annexation plan since this could lead to grave security issues, uprisings, international isolation, international relations with other nations, sanctions and international actions against Israel (Halbfinger and Rasgon, 2020). India’s Relations with Israel Israel- India relations can be traced back to the year 1992 where the first bilateral instrument between India and Israel was signed for economic, agricultural, military and political cooperation (Jewish Virtual Library, 2020). Since then, one of the largest trading partners of Israel has been India. One of the prominent reasons for strong ties has been that both India and Israel are isolated democracies that have faced threats from few of their immediate neighboring nations, leading to a slightly common narrative. Not only in trade, but the relations have deepened due to Israel’s support to India during the Kargil War and natural disaster relief work as well (Jewish Virtual Library, 2020). The outcome of such strong ties between India and Israel has resulted in various fruitful results for both the nations including massive defence deals of Israeli surveillance and radar systems, electronic components for military aircraft, X- 95 assault rifles, Phalcon AWACS planes, swordfish ground radar trackers, precision artillery, Barak 8 air and naval defense missile system, Heron TP drone vehicles, surface to air python and derby missile systems (SPYDER), Punj Lloyd Raksha Systems (PLR) and comprehensive integrated border management system (CIBMS) (Jewish Virtual Library, 2020). Moreover, the Indo- Israel Agricultural Project has also helped in establishing various centres of excellence across India that will help Indian farmers in learning new agricultural techniques and technologies for


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advancement in vertical farming, soil solarization and drip irrigation (Jewish Virtual Library, 2020). Despite the outbreak of the coronavirus pandemic, India and Israel relations have continued to grow. This is clearly evident from the fact that India exempted Israel from its export ban on masks and pharmaceutical raw materials, defence deal where India is in the process of purchasing 16,000 light machine guns worth INR 880 crores and evacuation support by Air India to transport 500 Israeli nationals from India to Tel Aviv (Singh, 2020). 3

India’s Relations with Palestine

Albeit the fact that, Israel and India have had strong ties over the years, India has actively supported the Palestinian cause. In 1974, India had officially become the first Non- Arab country to confer recognition on the Palestine Liberation Organisation (Ministry of External Affairs, 2018). This active support can be clearly witnessed through India’s role in the 53rd session of the United Nations General Assembly, 2003 and 2012 United Nations General Assembly Resolutions, Palestine’s membership in United Nation Educational, Scientific and Cultural Organisation, installation of the Palestinian flat at United Nations’ premises and the Bandung Declaration on Palestine (Ministry of External Affairs, 2018). A significantly good relations between Palestine and India have led to multiple projects and Memorandum of Understandings in Palestine which involves activities such as construction of schools, universities, vocational training centers, libraries, hospitals, governorates and printing press (Ministry of External Affairs, 2018). India has also increased its contribution for United Nations Relief and Works Agency for Palestine Refugees to 5 Million US Dollars from 2018-19 onwards and has provided ease in visa processes for Palestinian people (Ministry of External Affairs, 2018). The Indian Prime Minister has also been awarded the “Grand Collar of the State of Palestine” for its contribution towards better relations and support in resolution of Palestine’s conflict with Israel (Press Trust of India, 2018). 4

India’s Response to the Israeli- Palestinian Conflict and the Way Forward

In respect to the Israeli- Palestinian conflict, India has always focused on the “Two State Solution” which was introduced during the Oslo Accords and aims to provide equal recognition for both Israel as well as Palestine with independent and autonomous governing bodies of their own (Sreeresmi, 2020). India’s strong support towards Palestine has not deterred the relations between India and Israel as India has managed to maintain a good amount of balance with its individual relations with each country (Sreeresmi, 2020). Undoubtedly, good relations with Israel has led to some form of dilution of India’s opposition of treatment of Palestinians by the Israeli Government, but it cannot be said that India has favored any one country in comparison with its relation with both nations (Sreeresmi, 2020). India reiterated its position towards the end of January, 2020 advising the Israeli- Palestinian conflict through negotiations and the Two State Solution. The Indian Foreign Ministry also seemed to passively support the Middle East Peace Plan proposed by the United States of America (Roche, 2020). However, considering the severe criticism faced by United States of America’s Middle East Peace Plan, the United Nations sought India’s assistance in early March to revive the process and increase India’s participation in mediating the resolution of the Israeli- Palestinian conflict (Middle East Monitor, 2020). In consideration of the fact that the conflict between Israel and Palestine has not shown any kind of positive step towards resolution even after the outbreak of the pandemic, India might


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have to engage in direct dialogue in the post- pandemic period rather than maintain the balancing act to ensure that no further damage is done since India has been one of those nations that has managed to showcase positive initiatives for the advancement of both the countries equally. References 1. BBC News. “Israel- Gaza Violence Spirals After Killing of Top Palestinian Militant”. BBC News. (12 November 2019). [online]. [02 July 2020]. Available from: <https://www.bbc.com/news/world-middle-east-50395347>. 2. Editors, History Stories. “Six- Day War Ends”. History Stories. (09 February 2010). [online]. [02 July 2020]. Available from: <https://www.history.com/this-day-in-history/six-day-war-ends>. 3. Jewish Virtual Library. “Israel International Relations: India- Israel Relations”. Jewish Virtual Library. (2020). [online]. [02 July 2020]. Available from: <https://www.jewishvirtuallibrary.org/history-and-overview-of-india-israel-relations>. 4. Global Policy Forum. “The Oslo Accords”. Global Policy Forum. (2020). [online]. [02 July 2020]. Available from: <https://www.globalpolicy.org/component/content/article/189-israelpalestine/38356-the-oslo-accords.html>. 5. Haddad, Mohammed. “Trump’s Middle East Plan and a Century of Failed Deals”. Aljazeera. (2020). [online]. [02 July 2020]. Available from: <https://interactive.aljazeera.com/aje/2020/the-failed-deals-of-the-century/index.html>. 6. Halbfinger, David; Rasgon, Adam. “As Annexation Looms, Israeli Experts Warn of Security Risks”. The New York Times. (19 June 2020). [online]. [02 July 2020]. Available from: <https://www.nytimes.com/2020/06/19/world/middleeast/isael-annexation-west-bankrisks.html>. 7. Human Rights Watch. “World Report 2019: Israel and Palestine”. Human Rights Watch. (2019). [online]. [02 July 2020]. Available from: <https://www.hrw.org/world-report/2019/countrychapters/israel/palestine>. 8. Marks, Julie. “Gaza: The History that Fuels Conflict”. History Stories. (30 May 2018). [online]. [02 July 2020]. Available from: <https://www.history.com/news/gaza-conflict-history-israelpalestine>. 9. Middle East Monitor. “UN Seeks India’s Assistance on Palestine- Israel Conflict”. Middle East Monitor. (03 March 2020). [online]. [02 July 2020]. Available from: <https://www.middleeastmonitor.com/20200303-un-seeks-indias-assistance-on-palestineisrael-conflict/>. 10. Ministry of External Affairs, Government of India. “India- Palestine Relations.” (August 2018). [online]. [02 July 2020]. Available from: <https://mea.gov.in/Portal/ForeignRelation/Updated_Note_on_IndiaPalestine_Relations_for_MEA_Website.pdf>. 11. People’s Watch. “Global Protests Against Israel’s ‘Annexation Plan’”. News Click. (02 July 2020). [online]. [02 July 2020]. Available from: <https://www.newsclick.in/Global-Protest-AgainstIsrael%27s-Annexation-Plan>. 12. Press Trust of India. “PM Modi Conferred ‘Grand Collar of the State of Palestine”. Economic Times. (10 February 2018). [online]. [02 July 2020]. Available from: <https://economictimes.indiatimes.com/news/politics-and-nation/pm-modi-conferred-grandcollar-of-the-state-of-palestine/articleshow/62863005.cms?from=mdr>. 13. Roche, Elizabeth. “India Asks Israel and Palestine to Resolve their Dispute by Negotiations.” LiveMint. (29 January 2020). [online]. [02 July 2020]. Available from: <https://www.livemint.com/news/world/india-asks-israel-and-palestine-to-resolve-theirdispute-by-negotiations-11580311209958.html>.


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14. Singh, Mansheetal. “Despite Coronavirus Outbreak, India- Israel Friendship Continue to Shine”. Observer Research Foundation. (06 April 2020). [online]. [02 July 2020]. Available from: <https://www.orfonline.org/expert-speak/despite-coronavirus-outbreak-india-israelfriendship-continue-to-shine-64193/>. 15. Sreeresmi, S. “Israel- Palestine Conflict: History, Wars, and Solution”. ClearIAS. (2020). [online]. [02 July 2020]. Available from: <https://www.clearias.com/israel-palestine-conflict/>. 16. Sreeresmi, S. “India’s Stand on Israel- Palestine Conflict: Recent Changes.” ClearIAS. (2020). [online]. [02 July 2020]. Available from: <https://www.clearias.com/indias-stand-on-israelpalestine-conflict/>. 17. United Nations. “History of the Question of Palestine”. United Nations. (03 April 2020). [online]. [02 July 2020]. Available from: <https://www.un.org/unispal/history/>. 18. Weissbach, Muriel Mirak. “Who Murdered the Oslo Accords?”. Global Policy Forum. (21 May 2004). [online]. [02 July 2020]. Available from: <https://www.globalpolicy.org/component/content/article/189/38354.html>.


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India-Bangladesh Relations: Future Underpinnings and Understandings Akash Manwani1 1Junior

Associate Editor, Indian Society of Artificial Intelligence and Law akash.manwani@isail.in

Since its independence in 1971, Bangladesh grappled with domestic political instability facing events ranging from military coups to violent overthrow attempts, wherein the military and nationalist party leaders dictated an anti-India policy. Alternatively, the present Awami League party always propagated proliferation of cordial relationship with India. Although India has always preferred to act mature despite of serious allegations made against it, the flickering love-hate policy of Bangladesh has led to making and breaking of several multilateral and bilateral treaties involving security and economic cooperation Agreements. The Awami League government, led by Sheikh Hasina, has instilled confidence and stability in the India – Bangladesh relations by taking effective steps against anti-India leaders in Bangladesh thereby showing her utmost commitment to the nation which helped Bangladesh secure independence in the first place. Several factors which rule the relationship between both the nations are immigration policies, border feuds, water disputes, domestic stability, the China angle and economic cooperation. 1

The intertwined immigration and domestic policies

The immigration policy and domestic political setting of both the countries coincide at several places. India’s comparatively better economic position, democratic credentials and political stability has acted as a magnet for people facing persecution, hostile conditions and intolerance in surrounding states like Myanmar, Sri Lanka, Bangladesh, Afghanistan, Pakistan, Tibet and Nepal. Especially Bangladesh which covers India’s north-east from three sides sharing boundaries with Indian states like West Bengal, Assam, Meghalaya, Tripura and Mizoram has seen a surge in population migration. There is no definitive data on number of illegal migrants but last four censuses of 1981, 1991, 2001 and 2011 suggests that this number exceeds 15 Million. Such concentration of population has left a huge impact on north-east India’s limited resources. Locally, Assam has seen huge protests against illegal immigrants with several laws being passed and Accords being signed but no effective steps could be taken (Tripathi, 2016). Bangladesh on the other hand, maintains that there is no necessity for migrants to move to India as Bangladesh itself has shown better economic performance in the recent years (BBC, 2020). As per a report of Asian Development Bank, it surpassed India as the fastest growing South Asian economy (Asian Development Bank, 2019). Lack of definitive data shrinks the scope of productive dialogue with Bangladesh leaving India no option but to take severe measures to cope with the problem. It was the Supreme Court of India who took up the issue and passed a Judgement for implementation of National Register of Citizens (NRC), making Assam the only State in India with a Register of citizens. On 31st August, 2019, the final list of NRC was released, wherein about 19 lakh people were excluded from the Register (Center for Law and Policy Research, 2017-20). As Bangladesh was concerned about these migrants being deported to the home


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State, India assured that it was an internal matter and there would be no deportations to Bangladesh (Venkatraman, 2018). Although reportedly, about 4 immigrants were recently deported to Bangladesh (Chauhan, 2019) while the fates of the 19 Lakh, NRC-excluded people remains hanging at the mercy of the Foreign Tribunals whose integrity is not exactly solid (Mohan R. , 2019). There has also been minor discrepancies over other issues like introduction of India’s controversial Citizenship Amendment Act (CAA) which secures citizenship for migrants with 6 years of residence instead of 11 years, who are Hindus, Buddhists, Christians and Paris coming from Pakistan, Afghanistan and Bangladesh. It is controversial at the bilateral level, not due to the total exclusion of a religion but because of the rationale of the law that Bangladesh does not met adequate treatment to its minorities (Mohan G. , 2019). It is natural for immigration related issues to arise between States with large borders but with Assam’s NRC and local activism, illegal immigration has become difficult and both the nations should ensure to not let immigration decide the future discourse. 1.1

The Chinese angle

The Bangladesh – China relations is a matter of concern for India at several spheres. Bangladesh’s cordial relations with both, China and India, is not an effort to balance the hegemony in either of the bilateral relationship, but instead has a bipartisan objective of furthering economic betterment for itself. Bangladesh has signed up major Chinese projects like the Belt Road Initiative (BRI) which India has specifically disbanded, and further, Bangladesh has been open to Chinese investments despite the threat of hovering Chinese debt. India’s concerns can said to be legitimate in some circumstances but in some cases it can be addressed through the prism of Bangladesh’s viewpoint regarding the neutral approach in matters involving Bangladesh’s internal security. For instance, Bangladesh has been grappling with terrorist outfits on its soil which had stemming from political instability and therefore needs the active support from China for arms and ammunitions and from India for active counter insurgency assistance (Masood, 2017). Chinese intervention in counter-terrorism is welcomed but India has been on a lookout for intrutionist tendencies and the radar has notified results of grave concerns. Sheikh Hasina has categorically stated that India need not worry about the growing Bangladesh-China friendship, as it involves only economic proliferation and since Bangladesh is not in a position to deny any incoming funds, it has been maintaining safe distance from feuds between the two Asian giants (Das, 2018). However, on the other hand, India’s concerns regarding deep Bangladesh- China relations is natural, since Bangladesh, in the garb of seeking monetary trickles might look for capitalization of its geopolitical advantages, whose utility can be derived by Beijing (Finnigan, 2019). China has been a key contributor to developing Bangladesh’s military capabilities. China has been actively supporting Bangladesh’s military initiatives since 2002 which covers the controversial submarine sale, posing as a provocative move against India, as deployment of submarines could mean no other reason but to balance out the already inoffensive India (Raghuvanshi, 2016). The submarine deal and other similar deals become specifically problematic as these give a direct channel of information to China about Indian naval activities in the Indian sea lanes because it is China who will be intrinsically involved in the manufacturing process of submarines in Bangladesh’s Kutubdia Naval base thereby increasing the presence of Chinese troops for familiarization and training of the Bangladesh’s crew plying in the Indian waters near Indian naval establishments. This will succinctly allow China to cast a sensor net beyond its land jurisdiction which will be detrimental to India’s security (The Diplomat, 2017).


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Even on the economic frontlines, China overtook India as the biggest trade partner of Bangladesh. China is meting preferential treatment to Bangladesh through tariff liberalisations, infrastructure investments, Free Trade Agreements (FTA) and multilateral cooperation. Although there are no similar products in the exporting list of either of India, China and Bangladesh trilaterally, India should worry about the recent FTAs as there is a possibility of not only China taking over India’s part of trade with Bangladesh but also increasing its reliance on Bangladesh for products which are presently being supplied by India (Siddiqui, 2019). 1.2

The water issues

Water has an emotive value in countries like India and Bangladesh. There are more than 50 rivers shared by these neighbouring countries and this number is likely to increase through interlinkages and building of dams. Two Agreements in 1996 and 2019 were signed between India and Bangladesh for two major rivers Ganges and Feni respectively. Although a draft was approved for sharing of Teesta river, before the signing of the agreement, Mamta Banerjee raised objections on the ground of availability of water during the lean season (January-March) and water being a State subject, the Agreement could not materialize. Bangladesh has further raised concerns about India interlinking rivers to its water-deficient regions which might affect the water availability for Bangladesh. On the other hand, India has expressed environmental concerns about the trans-boundary river Churni with the upstream Bangladesh discharging factory effluents which might plausibly impact the domestic health in India. The National Green Tribunal has even directed the Ministry of External Affairs to cause representation and submit a report on the steps and actions taken to initiate dialogue (Tribunal on its Own Motion Vs. Union of India, 2019). Due to multiplicity of tiffs between both the nations, a Joint River Commission (JRC) had been set up with the object of resolving river-related issues but its functioning has been in doldrums due to little willingness shown by both the countries to address the issues. It is important for both the countries to resolve river disputes amicably, keeping in mind, the larger goals of neighbouring cooperation and environmental sustainability (Bhattacharjee, 2020). 2

Conclusions

India’s ‘neighborhood first’ policy and contradictorily, Bangladesh’s ‘look east’ policy on account of water disputes, radicalization, Chinese interventions and illegal immigration, might set a downward trajectory for both the countries to foster a strong future. However, India has consistently maintained a softened stand towards Bangladesh. For instance, it quietly accepted the ruling of the United Nations Tribunal in favour of Bangladesh on a maritime dispute and in contrast there stands China’s prima facie rejection of ruling of UNCLOS Tribunal decision in favour of Philippines (Habib, 2016). A major and direct threat for India is Bangladesh’s plausible deleveraged position with China on account of extreme reliance on Chinese money which can then be used to corner Bangladesh against India’s strategic interests. Bangladesh believes that it can negotiate its way out of notorious Chinese debt trap, but these are hardly any assurances. During this COVID-19 pandemic, India provided unconditional medical support to Bangladesh and on the other hand China has proposed to help Bangladesh if it agrees for sister-city alliance. This method of alliance is a new ‘citizen diplomacy’ of China which offers to connect cities for deepening cultural and commercial cooperation by helping other cities to become like developed Chinese cities.


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The world is sceptical about this overenthusiastic approach of China and links can be drawn to furthering Chinaâ&#x20AC;&#x2122;s BRI objective. Some Swedish cities have already terminated official city cooperation deals and Sri Lanka, having to mandatorily lease a part of its land to China because of non-repayment of loan, is another prime example of the debt trap. During these testing times, Bangladesh, just like other world economies, is grappling with maintaining economic stability and could use any help it gets but it should not blind itself to an extent where it does not even realise that China is actually arm-twisting it to sign agreements by making medical assistance subject to cracking a favourable deal with China. If pre-deal situation begins at this note, any country should not expect a fair and equitable treatment while dealing with China. India in this situation must capitalize on its unique advantages like access to natural resources like rivers, proliferation of long term security over short term monetary sustenance and ethical trade cooperation. To tackle the Chinese soft power, India needs to look deeply for its own leverages over its better sheltered neighbor. References 1. Asian Development Bank. (2019). Fostering Growth and Inclusion in Asian Cities, Asian Development Outlook 2019 Update. Asian Development Bank. Retrieved June 18, 2020, from https://www.adb.org/sites/default/files/publication/524596/ado2019-update.pdf 2. BBC. (2020, February 21). India and Bangladesh: Migration Claims Fact-Checked. Retrieved June 18, 2020, from BBC News: https://www.bbc.com/news/world-asia-india-51575565 3. Bhattacharjee, J. (2020, May 12). Migration River Management and Radicalization: What does the Future hold for India. Retrieved June 18, 2020, from Observer Research Foundation: https://www.orfonline.org/research/migration-river-management-radicalisation-66008/ 4. Center for Law and Policy Research. (2017-20). Assam's National Register of Citizens. Retrieved June 18, 2020, from Supreme Court Observer: https://www.scobserver.in/court-case/assam-snational-register-of-citizens 5. Chauhan, N. (2019, December 10). 1.29 Lakh People Declared Foreigners in Assam, 6 Deported: Government. Retrieved June 18, 2020, from The Hindustan Times: https://www.hindustantimes.com/india-news/1-29-lakh-people-declared-foreigners-in-assam-only-6-deportedgovt/story-M3sMhUjODQfwd4y4SughrN.html 6. Das, M. (2018, February 23). India need not worry about Bangladesh-China ties: Sheikh Hasina. Retrieved June 18, 2020, from The Economic Times: https://economictimes.indiatimes.com/news/politics-and-nation/india-need-not-worry-about-bangladesh-china-tiessheikh-hasina/articleshow/63037906.cms?from=mdr 7. Finnigan, C. (2019, June 20). Bangladesh China Relations Have Metamorphosed into a Strategic Partnership. Retrieved June 18, 2020, from London School of Economics South Asia Centre: https://blogs.lse.ac.uk/southasia/2019/06/20/bangladesh-china-relations-have-metamorphosed-into-a-strategic-partnership/ 8. Habib, H. (2016, May 23). Bangladesh Wins Maritime Dispute with India. Retrieved June 18, 2020, from The Hindu: https://www.thehindu.com/news/national/bangladesh-wins-maritimedispute-with-india/article6191797.ece#:~:text=The%20much%2Dawaited%20verdict%20on,of%20the%20Bay%20of%20Bengal 9. Masood, A. (2017, July 25). India-Bangladesh-China Relations: A Complex Triangle. Retrieved June 18, 2020, from South Asia Journal: http://southasiajournal.net/india-bangladesh-china-relations-a-complex-triangle/ 10. Mohan, G. (2019, December 14). Don't Club us With Pakistan, Afghanistan Says Bangladesh PM's Media Advisor on CAB. Retrieved June 18, 2020, from India Today:


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12.

13.

14.

15.

16.

17.

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https://www.indiatoday.in/india/story/bangladesh-india-citizenship-amendment-bill-pak-afghanistan-modi-hasina-1628304-2019-12-14 Mohan, R. (2019, July 29). Inside India's Sham Trials That Could Strip Millions of Citizenship. Retrieved June 28, 2020, from Vice News: https://news.vice.com/en_us/article/3k33qy/worsethan-a-death-sentence-inside-indias-sham-trials-that-could-strip-millions-of-citizenship Raghuvanshi, V. (2016, November 23). Purchase of Chinese Subs by Bangladesh An Act of 'Provocation'. Retrieved June 18, 2020, from Defence News: https://www.defensenews.com/naval/2016/11/23/purchase-of-chinese-subs-by-bangladesh-an-act-of-provocation-toward-india/ Siddiqui, M. S. (2019, March 15). China-Bangladesh FTA An Overview. Retrieved June 18, 2020, from The Financial Express: https://www.thefinancialexpress.com.bd/public/views/chinabangladesh-fta-an-overview-1552662271 The Diplomat. (2017, January 20). Why China's Submarine Deal with Bangladesh Matters. Retrieved June 18, 2020, from The Diplomat: https://thediplomat.com/2017/01/why-chinas-submarine-deal-with-bangladesh-matters/ Tribunal on its Own Motion Vs. Union of India, OA No. 471/2018 (National Greeen Tribunal April 2, 2019). Retrieved June 18, 2020, from http://www.indiaenvironmentportal.org.in/files/file/Churni-river-pollution-NGT-Order.pdf Tripathi, S. (2016, June 29). Illegal Immigration from Bangladesh to India: Toward a Comprehensive Solution. Retrieved June 18, 2020, from Carnegie India: https://carnegieindia.org/2016/06/29/illegal-immigration-from-bangladesh-to-india-toward-comprehensive-solution-pub-63931 Venkatraman, P. (2018, October 5). PM Modi Assured Sheikh Hasina that India Won't Deport NRC-excluded People to Bangladesh. Retrieved June 18, 2020, from News 18 India: https://www.news18.com/news/india/pm-modi-assured-sheikh-hasina-india-wont-deport-nrcexcluded-people-to-bangladesh-1900203.html


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Analysis of India’s Joint Ventures with UNOPS to Achieve Sustainable Development Goals Mugdha Satpute1 and Ridhima Bhardwaj2 1Research 2Research

1

Member, Internationalism C/O AbhiGlobal Legal Research & Media LLP Member, Internationalism C/O AbhiGlobal Legal Research & Media LLP mugdha1042@gmail.com

Introduction to UNOPS & SDGs

The United Nations Office for Project Services (UNOPS) is a United Nations functional branch committed to executing initiatives undertaken by the UN, global financial institutions, states, as well as other stakeholders around the world. It is a self-financed and demand-driven business model which helps UN and its partners provide peace and security, humanitarian and development solutions. Its services include infrastructure, project management, procurement, financial management and human resources. UNOPS strategic plan of 2018-2021 outlines the vision of the organization of a world where people can live full lives, supported by appropriate, sustainable and resilient infrastructure and by efficient and transparent utilization of community resources. UNOPS can make direct and indirect contribution to the achievement of all 17 Sustainable Development Goals through its implementation procedure. The ultimate value proposition for UNOPS facilities is articulated through three commitment objectives: 6. Facilitate partners to do much more with far less by providing effective organizational support services, supplied locally or as a globally interconnected service. 7. Help individuals achieve individual, regional, national, and international goals through effective knowledge and experience based on global guidelines and benchmarks. 8. Aid countries in widening the pool as well as the impact of available resources with a view to achieving the 2030 Agenda. (United Nations Office for Project Services) 2

The Goa Project in India under the Sustainable Infrastructure Impact Investment (S3i)

To achieve the sustainable development, developing countries need large investments, new technologies and infrastructural developments. With its new initiative, UNOPS has created a platform to help and support such countries. It has started an innovative financing solution named Sustainable Infrastructure Impact Investment (S3I) which provides opportunities for investors from both public and private sectors, thus contributing to a positive social, economic, and environmental impact. In January 2020, the name of S3I was officially changed from ‘Social Impact Investing Initiative’ to ‘Sustainable Infrastructure Impact Investment’ Currently UNOPS is working on three core areas of sustainable infrastructure: renewable energy, affordable housing and health infrastructure. Through public-private partnerships


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it has been helping various countries by making infrastructural developments. Various companies, organizations and funds have been investing in these projects to create a social and environment impact along with financial returns. This initiative aims to channel the private sector investment towards developing countries and helping them meet critical national needs. (United Nations Office for Project Services, 2020) As a part of the S3I, UNOPS will be working on providing 2,60,000+ affordable homes across Ghana, Kenya, India, Nepal, Pakistan, and the Caribbean. UNOPS has undertaken affordable housing projects time and again, for instance, in Kenya the project provided 100,000 houses making it “the single largest housing initiative in the history of the nation” – a momentous achievement that benefitted masses of Kenyans. Since 2018, UNOPS entered into another agreement with the Government of Ghana, to establish around 100,000 housing units for teachers and students. The Kenya and Ghana ventures have a market capitalization of about $5 billion and $10 billion respectively. An agreement was signed with the Indian Government to construct 50,000 affordable houses in the state of Goa, and also pledged to build 10,000 houses across four island countries in the Caribbean. (United Nations Office for Project Services, 2019) 3

Sustainable Housing Solutions (SHS)

The UN Global Compact communication on progress (CoP) report 2018-19 considered the Goa Project to be the most idealistic affordable-housing venture in the developing countries, as SHS will be working in partnership with UNOPS to establish multiple large-scale affordable housing systems across various locations. SHS pledged to provide specialized state-of-the-art infrastructure and supervise the building of houses and neighbourhoods. Every house will incorporate solar energy systems, waste-to-energy technologies and preventive substances that deter diseases such as mosquito repellent covering. In this way SHS supports the objective of UNOPS to aid countries attain sustainable development and improving standards of living. The Government of India and UNOPS entered a bipartite arrangement. SHS was named as the UNOPS operations partner with the responsibility of providing 50,000 affordable homes in Goa. Thus, SHS engaged in advanced contract negotiations with an international building company of Indian origin and possessing comprehensive construction experience in India. (Amazon, 2019) 4

India-UNOPS Relations in Collaboration with South-South Cooperation

The South-South Co-operation is a collaborative initiative among the countries of South functioning under the United Nations Office for South-South Cooperation (UNOSSC). It works in the political, social, cultural, economic, environmental and technical sectors of these countries. Through this cooperation, developing countries share knowledge, skills, expertise and resources to meet their development goals through intensive efforts. (United Nations Office for South-South Cooperation, 2018) Developing countries along with international organisations invest into and execute the strategic projects as a part of south-south cooperation. This initiative has created positive developments in the economies of member countries, it has led to increase in Foreign Direct Investments, has expanded the opportunities for trade and markets, also through transfer of new technologies it has helped in making infrastructural developments, thus leading to regional integration of such countries.


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India has made great contributions to the South-South Cooperation initiative. India is helping various least developed countries and small island developing states through the IndiaUN Development Partnership Fund. The Fund helps these countries and supports them in achieving the Sustainable Development Goals and the Agenda 2030. The projects funded by India â&#x20AC;&#x201C; UNDP Fund are executed in collaboration with partnerships in Asia-Pacific, Africa, Europe, Latin America and the Caribbean. These projects have been emphasizing on sustainability challenges, climate change, infrastructural development, disaster management, renewable energy, agricultural developments, employment, education, gender equality, etc. The Government of India has committed an amount of $150 million for this Fund over the next decade to support projects aiming to achieve the Agenda 2030. The amount includes $50 million for working with the Commonwealth developing countries. 5

India at the UN

As India shines as a rising influence in the global community, its unwavering involvement with multilateral international organizations, especially the United Nations, is among the cornerstones of its soft power. India's growing involvement with the UN builds on its strong dedication to multilateralism and discourse as the path to achieving mutual priorities and resolving specific issues affecting the world community, such as those relating to maintenance of peace and security, sustainable development, eradication of poverty, global warming, terrorism and violence, human rights, health and pandemics; and reform of UN bodies especially the Security Council. (Permanent Mission of India to the UN at New York, 2020) Indiaâ&#x20AC;&#x2122;s country based foreign policy and diplomacy has gained it emerging power in its international relations. It has contributed in various UN based projects and has also taken the lead in developing its own projects along with other nations for the regional benefit. 6

India-UN Development Partnership Fund

The India-UN Development Partnership Fund is a committed institution within the UNFSSC. It is backed and led by the Indian government and enforced in cooperation with the UN framework. It is implemented in compliance with UNDP policies and guidelines, as well as recommendations and frameworks for inter-agency cooperation from the United Nations Development Group (UNDG). Initiatives backed by this fund support the implementation of the Sustainable Development Goals via concrete projects in response to requests from other developing nations for collaboration. Initiatives helping small island developing countries (SIDS), least developed countries (LDCs), and nations where India is qualified for diplomatic ties at the same period are preferred. (United Nations Development Programme, 2020) It has 31 partner countries including LDCs, LLDCs, and SIDs, 25 projects approved out of which 40% belong to Africa, $10 million dollar contributed to date and a $100 million pledged. (United Nations Office for South-South Cooperation, 2019) The projects comprise of, for example, Climate Early Warning Systems in 7 Pacific Island Countries, Promoting Youth and Women Employment through Agricultural Diversification in Benin, Building Resilience: Community Health Centre Improvement in Palau, Prevention of Adolescent Pregnancy and Sexual Abuse/Violence of Girls and Adolescents from an Intersectoral Approach in Paraguay, and much more.


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The Fund is indeed evidence of India 's commitment to presume an ever-increasing role on the global stage, and of India's great contribution to growth and prosperity for its citizens. India 's leadership has provided the world community with a committed platform to support those in the developing world including those nations that are suffering greatly from the consequences of climate change. (United Nations Office for Project Services, 2019) 7

India’s Contributions to South-South Cooperation and Joint Ventures With UNOPS

India is one of the prominent contributors to the UNOPS projects, United Nations Development Programme, and the South – South Cooperation. It is helping in creating a global change as an economic supporter for achieving the Agenda 2030 and the Sustainable Development Goals. Majority of the projects funded by India – UNOPS relations and India – UNDP Fund are functioning in the Pacific region. These projects are also operating as a part of the South – South Cooperation. The India – UNDP Fund is managed by the United Nations Office for South-South Cooperation (UNOSSC), and it supports Southern-owned and led, demand-driven, and transformational sustainable development projects in developing countries. These funded projects specially function in the Least Developed Countries (LCDs) and Small Island Developing States (SIDS). In accordance to the Paris Climate Agreement, Sendai Disaster Risk Reduction and Framework for Resilient Development in Pacific (FRDP), the fund has initiated the ‘Climate Early Warning System in Pacific Island Countries’ project in 2017. This project will be functioning in the Pacific islands of Governments of the Cook Islands, the Republic of Kiribati, the Republic of the Marshall Islands, the Federated States of Micronesia, the Republic of Nauru, the Solomon Islands and the Kingdom of Tonga. Through this project the seven countries’ disaster awareness and preparedness will increase. It will also strengthen their resilience to climate change by providing effective preventive measures. (United Nations Office for South-South Cooperation, 2017) India, along with Brazil and South Africa has started an initiative of the ‘India, Brazil and South Africa Facility for Poverty and Hunger Alleviation’ (IBSA Fund). Formation of IBSA Fund is done to promote South – South Cooperation in partnership with the United Nations system. This initiative funds the local demand-driven projects aiming in reduction of poverty, improvement in health facilities and health infrastructure, developing sanitation and waste management systems, promoting the use of solar energy, creating local job opportunities, modifying agricultural practices, etc. Countries like Haiti, Burundi, Cabo Verde, Guinea-Bissau, Sudan, Timor-Leste, Comoros and Fiji are receiving assistance from the Fund. (United Nations Office for South-South Cooperation, 2017) In March 2018, the Government of India, the United Nations Development Programme (UNDP) and UNOPS signed a partnership agreement to accelerate the post-earthquake reconstruction in Nepal. The Government of India under this agreement provided a US $8.79 million grant to UNDP and US $7.41 million to UNOPS for safer reconstruction of houses in the hardest hit districts of Gorkha and Nuwakot, by the 2015 earthquake. This economic assistance will allow UNDP and UNOPS to provide socio-technical facilitation for rebuilding of households. The Government of India provided a grant of US $250 million and a US $750 million Line of Credit, after the 2015 Gorkha earthquake for reconstruction of houses, schools, hospitals, heritage structures and other affected infrastructure. (United Nations Development Programme, 2018) Lately, India is focused on helping its neighboring countries and is emphasizing on collective development of all.


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Even during the Covid-19 pandemic, the India – UNDP Fund is operationalizing important healthcare and medical projects. Through these projects emergency medical equipment is supplied, health centers are being developed, medical ventilators and ambulances are provided, etc. It focuses on strengthening the national health capacities and reducing the negative socio-economic impact and catalyzing transformative recovery. The fund is providing assistance to countries such as Palau, Antigua, Barbuda, Papua New Guinea, Grenada, and St. Lucia. (United Nations Office for South-South Cooperation, 2020) Through these projects and funding, India is promoting multilateralism and shared prosperity. India’s approach to cooperation is based on the concept ‘Vasudhaiva Kutumbakam’, as a result of which India supports and promotes the collective actions taken by nations and helping each other in achieving the SDGs. During the global crisis of climate change India is emphasizing on developing environment friendly infrastructural projects. It has taken the lead in working against climate change by establishing various international collaboration projects such as ‘International Solar Alliance’, ‘Global Coalition on Disaster Risk Reduction’, and ‘One Sun One World One Grid’ initiative. The Indo-Pacific region is of strategic importance, but China is trying to increase its presence in this region, which poses a threat to India and neighboring countries. Thus, India is helping its neighboring countries, least developed countries, and small island developing states present in Pacific region, in the infrastructure developments and in gaining economic independence. The Government of India is emphasizing on implementation of sustainable and eco-friendly developments in India as well as across the world to promote its environmentalist agenda. It is formulating mechanisms to tackle natural calamities and its impact in alliance with the other countries. The huge contribution of India in achieving the global sustainable development collectively has gained India the positive legitimacy in its relations with the UN agencies and in the South-South and triangular cooperation. 8

Environmentalist Agendas of India and the Global South

Contemporary world's Global South developing nations form four-fifth of the earth's population, but also consist of billions of people who still live in poverty and disadvantaged circumstances. Such nations take up over two thirds of the earth's landmass, including the most crucial and prized ecologies and renewable and non-renewable resources on the planet. Provided that LDCs and emerging nations make up the majority of Global South participation, it's indeed evident that such a significant political group can play a crucial role in encouraging sustainable development and fighting climate change. The Global South “possess the economic conditions, the natural and cultural assets, and the policy setting to embrace, if not lead, a green economy transition, which would in turn accelerate their development”. (Energy Pact Foundation, 2020) A Global South outlook on climate change politics is focused on developed and developing nations' unequal contribution to climate change, differentiated adaptation capabilities and the growing need for developing nations to concentrate on reducing poverty and sustainable growth. (Understanding India's Representation of North–South Climate Politics, 2013) The rising proof of climate change, both scientific and observational — has triggered an increase in social reform, particularly among young people. Although more evident in the global north, young people are rallying against indifference towards climate change in India and the rest in the global south. For India, that politics surrounding global climate change means something. India has the ability to increase action against climate change whilst also continuing to pursue its aspirations of development. A prominent example is its past history of renewable energy, which


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helps in minimizing greenhouse gas emissions while still saving the country energy resources. Throughout the narrative of India as a champion of climate change, however, there seem to be discrepancies. India is rightly known for encouraging green energy, but it still complicates the vision by putting out conflicting messages on potential use of coal. (Dubash, 2019) India has been implementing initiatives and government financed projects based on energy efficiency and the introduction of clean energy technology for many decades. Some of these include, New and Renewable Energy Policy, 2005, Biodiesel Purchase Policy, Energy Conservation Act, 2001, Bachat Lamp Yojana (Efficient Lamps Program), etc. Positive value for the environment is rooted in the ethos of India. Despite rising economic success this remains constant. Waste management in India is significantly ahead of even Japan, the industrialized nation that has the strictest recycling rules. India possesses a long cultural recycling tradition. A significant inclination towards fuel-efficient vehicles can be seen in the preference of automobiles wherein there is an evident and swift rise in automobiles powered by natural gas. (Narain, 2009) Thus, India with its environment friendly initiatives and ventures undertaken with international organisations, is a powerful contributor to global sustainable development. References 1. Amazon. 2019. UN Global Compact communication on progress (CoP) report 2018-19. Amazon S3. [Online] September 2019. [Cited: June 20, 2020.] https://s3-us-west-2.amazonaws.com/ungc-production/attachments/cop_2019/479508/original/SHS_COP_report_Sept19.pdf?1570824405. 2. Dubash, Navroz K. 2019. The nationalist hindrance to climate actions. The Hindu. [Online] September 23, 2019. [Cited: June 20, 2020.] https://www.thehindu.com/opinion/lead/the-nationalist-hindrance-to-climate-actions/article29483225.ece. 3. Energy Pact Foundation. 2020. The global south agenda for a sustainable world. Energy Pact Foundation. [Online] 2020. [Cited: June 20, 2020.] https://www.energypact.org/the-globalsouth-agenda-for-a-sustainable-world/. 4. Narain, Sunita, Ghosh, Prodipto, Saxena, NC, Parikh, Jyoti and Soni, Preeti. 2009. Climate Change Perspectives from India. United Nations Development Programme. [Online] 2009. [Cited: June 20, 2020.] https://www.undp.org/content/dam/india/docs/undp_climate_change.pdf. 5. Permanent Mission of India to the UN at New York. 2020. Permanent Mission of India to the UN. [Online] 2020. [Cited: June 20, 2020.] https://www.pminewyork.gov.in/pdf/menu/submenu__1521185553.pdf. 6. Understanding India's Representation of North–South Climate Politics. Joshi, Shangrila. 2013. 2, s.l. : MIT Press – Journals, 2013, Global Environmental Politics , Vol. 13, pp. 128-147. 7. United Nations Development Programme. 2020. United Nations Development Programme. [Online] 2020. [Cited: June 20, 2020.] https://info.undp.org/docs/pdc/Documents/TUV/India-UN%20Programme%20Guidelines%20(Distribution).pdf. 8. —. 2018. Government of India, UNDP and UNOPS partner to expedite reconstruction in Nepal. United Nations Development Programme. [Online] March 8, 2018. [Cited: June 20, 2020.] https://www.undp.org/content/undp/en/home/news-centre/news/2018/Government-of-India-UNDP-and-UNOPS-partner-to-expedite-reconstruction-in-Nepal.html. 9. United Nations Office for Project Services. 2019. INDIA-UN DEVELOPMENT PARTNERSHIP FUND SECOND ANNIVERSARY EVENT. United Nations Office for


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15.

16.

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Project Services. [Online] June 06, 2019. [Cited: June 20, 2020.] https://www.unops.org/newsand-stories/speeches/india-un-development-partnership-fund-second-anniversary-event. —. 2020. INVESTING FOR IMPACT (S3I). United Nations Office for Project Services. [Online] 2020. [Cited: June 20, 2020.] https://www.unops.org/about/investing-for-impact. —. 2019. Statement to the Annual Session of the Executive Board, 2019. United Nations Office for Project Services. [Online] June 07, 2019. [Cited: June 20, 2020.] https://www.unops.org/news-and-stories/speeches/statement-to-the-annual-session-of-the-executive-board2019. —. United Nations Office for Project Services. UN SYSTEM SDG IMPLEMENTATION. [Online] [Cited: June 20, 2020.] https://sustainabledevelopment.un.org/content/unsurvey/organization.html?org=UNOPS. United Nations Office for South-South Cooperation. 2018. About South-South and Triangular Cooperation. United Nations Office for South-South Cooperation. [Online] 2018. [Cited: June 20, 2020.] https://www.unsouthsouth.org/about/about-sstc/. —. 2017. Climate Early Warning Systems Project for Pacific Island States receives India-UN Development Partnership Fund support. United Nations Office for South-South Cooperation. [Online] June 16, 2017. [Cited: June 20, 2020.] https://www.unsouthsouth.org/2017/06/16/climate-early-warning-systems-project-for-pacific-island-states-receives-india-un-development-partnership-fund-support/. —. 2019. India_UN Fund Report. United Nations Office for South-South Cooperation. [Online] May 2019. [Cited: June 20, 2020.] https://www.unsouthsouth.org/wp-content/uploads/2019/06/UNDP_India-UN-Fund-Report_May-2019_v1.6-web-ready.pdf. —. 2020. India-UN Development Partnership Fund Building Pandemic Responses through South-South Collaboration. United Nations Office for South-South Cooperation. [Online] April 29, 2020. [Cited: June 20, 2020.] https://www.unsouthsouth.org/2020/04/29/india-un-development-partnership-fund-building-pandemic-responses-through-south-south-collaboration/. —. 2017. The South Working for the South: The India-Brazil-South Africa Fund. United Nations Office for South-South Cooperation. [Online] December 18, 2017. [Cited: June 20, 2020.] https://www.unsouthsouth.org/2017/12/18/the-south-working-for-the-south-the-india-brazil-south-africa-fund/.


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Discussion Papers and Research Articles Policy papers and Articles on the Neorealist and Contemporary Avenues of International Law and Relations


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Resolving the Jurisdictional Issues of International Courts and Tribunals Manohar Samal1 1Research

1

Analyst, Internationalism C/O AbhiGlobal Legal Research & Media LLP manohar@internationalism.co.in

Introduction

Sovereignty of a nation is an aspect which can be equated to individual autonomy on a miniscule scale. Just like every individual possesses a certain amount of autonomy and has to willingly give it up to interact with society in different ways, even nations have to be willing to sacrifice a certain amount of sovereignty to interact with the international community. Not only that, but such sacrifice is vital for the survival of the international community itself. Conventional instruments have been one of the mechanisms through which nations consent to give up a certain amount of sovereignty to achieve certain common goals by way of ratification of such instruments (Verma, 2012). Therefore, it is trite that consent plays a sacramental role under international law and nations cannot be held liable in the international sphere unless the subject matter of controversy is not a part of jus cogens norms (Guzman, 2011). However, for violations of jus cogens norms too, no effective remedial mechanism exists, where a court can take cognisance. This is evident by the fact that although genocide is a jus cogens norms and the Vienna Convention on the Law of Treaties confers a higher status than other conventional instruments to it (Article 53), no effective and timely action is taken to impose liability upon the nations which violate them. This has resulted in the incessant number of refugee and stateless populations all throughout the world. This example is only one issue faced due to the issue of lack of jurisdiction of international courts and tribunals. Therefore, it is extremely paramount that in order to resolve the issue of jurisdiction of international courts and tribunals, certain principles of international law are rethought to accommodate compulsory jurisdiction of international courts and tribunals in some spheres which are essential for the co- existence and harmonious development of the international community as a whole. 2

Review of Literature

Kiyotaka Morita in his work â&#x20AC;&#x153;The Issue of Lacunae in International Law and Non Liquet Revisitedâ&#x20AC;? (Morita, 2017) has effectively dealt with the jurisdictional issues of international courts and tribunals and its relationship with the non liquet principle. The author has clearly shown how international tribunals and courts have chosen not to apply the non liquet principle, but have found solutions such as general principles of international law, equity, analogy and the residual negative principle to fill the lacuna in international law to hear the cases. Few of the cases which the author has discussed include the Barcelona Traction Case, Corfu Channel Case and the North Sea Continental Shelf Cases. However, the author has not managed to arrive with resilient solutions that are capable of resolving the issue at hand. It merely affirms the existing principles that have been utilised by courts, solely on discretion to either choose non liquet or to dispense with it.


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Traces of the idea of compulsory jurisdiction of courts and tribunals can be traced back to the resolution passed by the Institute of International Law in 1959. However, very less seems to have been achieved in the international sphere in respect of resolving jurisdictional issues of international courts and tribunals. Andrew Guzman in his work “The Consent Problem in International Law” (Guzman, 2011) has correctly pointed out that the decision of an international court or international tribunal is a source of non- consensual jurisprudence in the international sphere which shapes the legal obligations of States. This work has also exhibited the inadequacy of jurisdiction faced by international courts and tribunals and has veraciously highlighted that international law’s commitment to consent may pose severe challenges to achieve goals of climate change and disarmament and alongside collaborative efforts, answers to the consent problem needs to be found. Although the author has accurately explicated the insufficiencies that cause jurisdictional problems before international forums, the solution formulated by the author may not aid the situation in the long run. This is because the author’s work has focused on empowering international organisations in the international sphere as a solution to the problem. Such a solution might not be viable since the driving factors of jurisdictional issues in international courts and tribunals are consent of States and situations of non liquet faced by the international forums. Thus, the present research is being carried out in order to fill the gap in research shortcomings in this subject so that workable solutions that will effectively solve the problem can be obtained. 3

Hypothesis

It is hypothesized that introducing non- consent based compulsory jurisdiction can resolve the issue of lack of jurisdiction and non liquet in international courts and tribunals. 4

Testing the Hypothesis and Discussions

It is noteworthy that, although introducing a non- consent based compulsory jurisdiction mechanism can resolve the issue of lack of jurisdiction and non liquet in international courts and tribunals, in order to avoid absurd results, it is pertinent that such non- consent based compulsory jurisdiction is only introduced in forums that are empowered to deal with violations of jus cogens norms, implementing universal standards and dealing in other essential customary law principles. In other words, such non- consent based compulsory jurisdiction cannot be implemented in international tribunals that utilise peaceful settlement of dispute techniques for adjudication like the Permanent Court of Arbitration and International Centre for Settlement of Investment Disputes since ousting of consent in these forums would not lead to fruitful and viable results. It is undeniable that any system of law that prescribes rights has to also provide for sufficient remedy and an enforceable co- relative duty (Corbin, 1924) or if it asserts guidelines for the behaviour of any entity, person or nation or prohibits any activity, then sufficient penal or enforcement mechanism has to also be prescribed by such law. Few essential concomitants of the rule of law itself embody access to justice, judicial review, proportionality, legal certainty, transparency, equality and non- discrimination (Arcas, 2014). The inability of international law to provide many of these elements of rule of law are extremely alarming. Under such circumstances, to continue at the same path would only prolong the inadequacy and insufficiency of remedy and enforcement under the sphere.


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The concept of non liquet originated under Roman Law and states that it is the lack of jurisdiction of an international court or tribunal due to ambiguities and inconsistencies in law or absence of adequate law (Fastenrath and Knur, 2016). In fact, the inclusion of general principles of international law under Article 38 of the Statute of the International Court of Justice was introduced for the very purpose of defeating a non liquet situation (Bassiouni, 1990). A similar application can also be seen in the Rome Statute of the International Criminal Court where, under Article 21, general principles of international law and domestic laws of State Parties consistent with international principles, norms and standards can also be applied during the course of adjudication. It is noteworthy that although these applications within the respective statutes of international courts have permitted to reduce the volume of non liquet situations, it still exists in case of jurisdiction of such courts and tribunals. This is because a State who has not ratified a particular international court or tribunal’s statute will not be bound by it. This in itself would naturally lead to a non liquet situation where a forum will have to succumb to inadequacy of the law of jurisdiction. Such instances create irreparable damage in refugee crises, environmental destruction, heinous crimes against humanity or oil spills in a regional and international sphere. Sovereignty of States has been the nucleus under international law and everything has been revolving around it in this arena, since time immemorial. In modern political and legal context, sovereignty of a State can be fully associated with the scope of competence of a State (Bytyak & Others, 2018) for external independence, ultimate legal supremacy, internal authority and autonomy (Loughlin, 2017). Contrary to Bodin’s and Hobbes’ theories which portrayed sovereignty as absolute, it is trite that sovereignty in today’s context is nonabsolute and circumscribed (Philpott, 2003). The increased scale of global activities, relations between non- state global actors, consent based ratification of international legal instruments and multilateral sanctions have contributed towards the non- absolute nature of sovereignty of States. One of the prominent legal philosophers who successfully recognised the non- absolute nature of sovereignty of States in the international sphere was Hugo Grotius which was based upon the idea that under international relations, one sovereign State deals with other sovereign States in a situation where none of the sovereign powers hold superiority over the other (Blom, 2013). Sacrifice of sovereignty for the greater good and in order to achieve a common set of goals is not a newfound phenomenon. Rather, Hedley Bull, a professor in his work “The Anarchical Society” (Bull, 1977) traces its origins to the Grotrian School and has stated the following in its respect (Yamauchi, 1994); “A society of states (or international society) exists when a group of states, conscious of certain common interests and common values, form a society in the sense that they conceive themselves to be bound by a common set of rules in their relations with one another, and share in the working of common institutions, ….. such as that they should respect one another’s claims to independence, that they should honour agreements into which they enter, and that they should be subject to certain limitations in exercising force against one another. At the same time they co- operate in the working of institutions such as the forms of procedures of international law, the machinery of diplomacy and general international organisation, and the customs and conventions of war.” It is undeniable and indispensable that a non- consensual compulsory jurisdiction of international courts and tribunals would directly strike at the sovereignty of States. The difference between the existing regime and the post- implementation of this mechanism is that the consent of States may become immaterial in certain cases. Currently, international


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crimes covered under jus cogens go unanswered due to the jurisdictional non liquet in international courts and tribunals. Even if jurisdiction exists, the duration taken for evidence gathering, apprehension and other relevant processes is time consuming and onerous due to non- cooperation. Just like in the domestic sphere, individuals, association of individuals and juridical persons exist, in the international sphere an addition of the State is witnessed. Within the domestic legal structure, sufficient and evolving jurisprudence for penalties and consequences for non- compliance exists. The same cannot be said for the international legal structure where enforcement and compliance is ousted by States in the guise of interference with sovereignty. International law is the body of law which envisages rights, but no mechanism to effectively and exhaustively enforce remedy and stipulates a plethora of prohibitions without any power to enforce such prohibitions. Although the rights, freedoms, liberties and principles enshrined under the International Bill of Human Rights are treated as universal standards for all to achieve, prohibitions on crimes against humanity and genocide have been asserted and the significance of sustainable development is time and again reiterated, but there is no authority where such rights can be enforced or remedy for violation can be granted without the consent of the violating State itself. Unfortunately, under the present international law mechanism, the violating or offender State has the power to decide whether the process of law can apply to it by choosing to oust the jurisdiction of the court or not by ratifying the instruments of the court which empower it to exercise jurisdiction over that particular State. Even the multilateral sanctions of the United Nations Security Council is heavily dependent upon the decisions of the “Permanent Five Countries” who exercise veto powers (United Nations Charter, 1945). Due to such qualms of non- enforceability of international law, the association of States have been reduced to individual members that utilize common global resources for enhancement and progress of interests that are merely constrained to their own geographical boundaries. This has defeated the entire purpose of having an international association or international community in the first place. On an analysis of the present scheme of things in the international sphere it can be figuratively stated that the international society as a whole, is a chariot being driven towards an uncharted future of unpaved and destroyed roads by headless horses. Emphasis on economy development and resource exploitation seems to be higher than sustainable development and protection of basic rights of every individual. The role and function of law itself in modern society is to legitimize governmental institutions, confer powers and restrictions upon such governmental institutions, maintain order in society, to control individuals, to deal with conflicts, to dispense justice and to ultimately transform society for the greater good (Funk, 1972). Coercion up to certain extent has to mandatorily be employed in order to achieve the goals of law. However, in international relations, such coercion cannot be exercised by States themselves but have to be exercised by authorities established for implementing the law. All of the problems highlighted factors discussed in the paragraphs above contribute towards the need for achieving a non- consent based mandatory jurisdiction of international courts and tribunals. In consideration of the fact that the scope of its application cannot be extended to all the issues under international law, it is necessary to set the parameters and areas where such non- consent based mandatory jurisdiction of international forums can apply. Therefore, for the present purpose, it is vital to discuss jus cogens norms and the role they play in the international society. Jus cogens literally translates to “compelling law” and refers to peremptory norms which are non- derogable (Hossain, 2005). Due to this, States are not completely free to pursue activities that are in contravention of jus cogens norms. The Nicaragua Case is a landmark judgment of the International Court of Justice which has recognized jus cogens to be a


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doctrine under international law. The elements which make norms into jus cogens norms are that it has to be a part of customary or general international law, accepted by States as a whole, non- derogable and modifiable only by another norm having the same status (International Law Commission, 2019). Preliminarily, aspects like prohibition of genocide, aggression, slavery, heinous crimes against humanity and torture that are the sub- species of international humanitarian law were a part of jus cogens norms. Over the span of years, the evolution of international jurisprudence has led to the expansion of its scope and now includes the principles enshrined under the International Bill of Human Rights, proportionality principle, non- refoulement principle, prohibition of terrorism, right of peaceful passage on air and water and liability for destruction of environment resources and biodiversity due to activities and negligence of another State. Jus cogens create obligations erga omnes which means â&#x20AC;&#x153;flowing to allâ&#x20AC;? (Bassiouni, 1997). Therefore, jus cogens norms are obligations to be observed by the States for the preservation of the international community as a whole. Despite this, no specific and established consequences for violation of such jus cogens norms exist till today (International Law Commission, 2019). Therefore, the non- consent based compulsory jurisdiction mechanism being proposed by this paper can act as an enforceable legal consequence for violation of jus cogens norms so that the process of law can begin sooner against the violating States without the need for consent of the violating State itself. The introduction of a non- consent based compulsory jurisdiction of international courts would also affect individuals and other juridical persons. Unlike the traditional dogmas and the perspectives encompassed by classical international law, individuals and juridical persons are also subjects of international law (Verma, 2012). On implementation of compulsory jurisdiction for jus cogens violations and crimes, individuals and juridical persons will be empowered with remedy to initiate and pursue the process of law against States for their wrongdoings. In consideration of the fact that a certain amount of sovereignty has already been given up by States in order to ensure passive compliance with jus cogens norms, it follows that active compliance enforced upon States is only being considered for the harmonious and orderly development of the international society as a whole and States should succumb for the greater good of the international community. One of the recent pristine violations of jus cogens norms was the Rohingya crisis in Myanmar that led to genocide, crimes against humanity, torture, rape, forced displacement, war crimes and ultimately, statelessness for the Rohingya people, (United Nations General Assembly, 2019) catastrophic and anarchical effect of which, still remains till today. Although Myanmar was unwilling to succumb to the jurisdiction of the International Criminal Court who is empowered to adjudicate upon cases of genocide, crimes against humanity, aggression and war crimes, the court in Situation in the Peopleâ&#x20AC;&#x2122;s Republic of Bangladesh/ Republic of the Union of Myanmar exercised its jurisdiction laudably on the principle of ratione temporis. Before this decision, the International Criminal Court only used to exercise jurisdiction only if both the States were parties to the Rome Statute or if the United Nations Security Council passed a resolution referring a certain matter to the court (International Criminal Court, 1998). Therefore, the decision of the International Criminal Court in the Rohingya case, in terms of exercise of jurisdiction, has opened new doors for international forums that exhibits as to how a court can extend its jurisdiction to enforce jus cogens norms and to dispense justice to the victims against violating State members that utilize the guise of sovereignty in order to escape from accountability and liability for jus cogens crimes. Therefore, it is manifestly clear that the hypothesis formulated in this work has a significant chance of succeeding if it is implemented efficaciously since the need of the present age and the times to come in the upcoming future demand for a stronger and more stringent international law ability to enforce and achieve common goals for the international society to progress.


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Conclusions

On perusal of the propositions advanced in the paragraphs above, it seems to be clear that a non- consent based compulsory jurisdiction mechanism implemented to provide for legal consequences towards States that indulge in jus cogens violations can indeed resolve the jurisdiction issue and non liquet situation by adequately prescribing a framework for remedy that is in consonance with the rule of law, purpose, preservation, orderly and harmonious development of international law. Evolving and transformative jurisprudence has to be embraced in order to maximize the results achieved in a particular age. The fact that the violating State can absolve itself from being made liable and accountable for its deeds is unjustifiable and a direct attack at the very purpose of having a system of law. Considering that over the years, recognition of the non- absolute nature of sovereignty has done better than harm, if implemented efficiently and resiliently, the proposed mechanism can indeed achieve its purpose of formalizing the melodious rhythm of progress and solidarity in the international society of States. 6

Recommendations

• The implementation of a non- consent-based jurisdiction mechanism can only be formulated by way of addendum in the United Nations Charter. This is because the Charter is the only instrument which has the highest amount of State ratifications and is the instrument capable of executing such a Goliath mechanism. Moreover, the goals encompassed within the ambit of the Charter also concur with jus cogens norms. In other words, jus cogens norms could be treated as the “means” and the goals enshrined under the United Nations Charter could be treated as the “ends” of harmonious, incessant and orderly development of the international community. • The committees, conferences, resolutions, white papers and other actions undertaken to initiate the implementation of a non- consent based compulsory jurisdiction mechanism for violation of jus cogens norms will have to involve the active involvement, participation and guidance of responsible United Nations agencies, human rights treaty bodies, non- state actors such as International Non- Governmental Organisations who are closely involved in matters that are related to the subject and States themselves in order to ensure the best outcome. • It is significant that the types of courts empowered under the mechanism, parameters of exercise of jurisdiction of courts empowered under the mechanism, penalties and consequences awardable, powers of the courts and the instances where such jurisdiction can be exercised have to be explicitly stipulated covering all substantive and procedural aspects required for the successful implementation of the proposed mechanism. • It is extremely vital that internal sovereignty does not become a subject matter of interference under the proposed mechanism. The mechanism can only extend to matters and actions in the sphere of external sovereignty and international relations where more than one State is being affected. Individuals and juridical persons of one or more State being affected by violation of jus cogens norms due to external acts of another State should also be afforded remedy under this proposed mechanism. • In order to ensure fruitful dispensation of justice, a limitation period only for completion of jurisdictional and other preliminary proceedings have to be mandated so that the


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courts are enabled to provide interim relief to the victim States, individuals and juridical persons. However, it is paramount to understand that a limitation period for filing or initiating proceedings or completion of the full hearing is not justifiable and would not bring out the best results. This is because violation of jus cogens norms in international law involve dealing in grave, irreparable and catastrophic situations. Under such circumstances, only the jurisdiction and other procedural and preliminary aspects involved in the hearing of the case can be barred by limitation of time. â&#x20AC;˘ The courts and tribunals that can be empowered under this mechanism to hear disputes are the International Court of Justice, the International Criminal Court, the International Tribunal for the Law of the Sea and the International Residual Mechanism for Criminal Tribunals. The relevant addendums by way of amendment will have to be brought to the Statute of the International Court of Justice, the Rome Statute of the International Criminal Court and the Statute of the International Residual Mechanism for Criminal Tribunals in order to permit the accommodation and formalisation of the non- consent based compulsory jurisdiction to adjudicate violations of jus cogens norms. Furthermore, the consent based ratification mechanism of the instruments of the empowered courts and tribunals will have to be ousted completely as far as jus cogens violations are concerned and replaced with provisions that are mutatis mutandis to the proposed mechanism. â&#x20AC;˘ The proposed mechanism can accomodate the support and assistance of human rights treaty bodies established for the implementation of international instruments such as the Human Rights Committee, the Committee on Economic, Social and Cultural Rights, the Committee on Elimination of Racial Discrimination, the Committee on the Elimination of Discrimination Against Women, Committee Against Torture, Committee on the Rights of the Child, Committee on Migrant Workers, Committee on the Rights of Persons with Disabilities and the Committee on Enforced Disappearance. This is because individuals and other juridical persons often face insurmountable difficulties in engaging in the process of law for relief. Moreover, the international courts and tribunals adjudicating with compulsory non- consent-based jurisdiction under the mechanism can utilize these human rights treaty bodies to support the process of dispensation of justice by entrusting them with powers of investigation, evidence gathering and other necessary support services, wherever required. â&#x20AC;˘ Regional organisations such as the European Union, African Union, Association of Southeast Asian Nations, South Asian Association for Regional Cooperation, Organization of American States, League of Arab States and the Pacific Islands Forum may choose to implement the proposed mechanism within their regional and domestic framework without any compulsion. However, in cases where forcibly deported, stateless and refugee populations flee to other States, in accordance with the principle of non- refoulement, the States would have to be mandated under the mechanism to seek guidance and assistance of the respective national bodies of human right treaty bodies or the respective United Nations agencies before making any decision and indulging in refoulement of such individual or population of individuals. References 1. Arcas, Leal Rafael. Essential Elements of the Rule of Law: Concept in the EU. Queen Mary University of London, School of Law, Legal Studies Research Paper No. 180/2014. [online]. August 2014. [30 April 2020]. Available from:


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<https://www.researchgate.net/publication/264894332_Essential_Elements_of_the_Rule_of_ Law_Concept_in_the_EU_Essential_Elements_of_the_Rule_of_Law_Concept_in_the_EU>. Bassiouni, Cherif M. A Functional Approach to â&#x20AC;&#x153;General Principles of International Lawâ&#x20AC;?. Michigan Journal of International Law. [online]. 1990. Volume 11, Issue 3, pp. 768-818. [01 May 2020]. Available from: <https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1664&context=mjil>. Bassiouni, Cherif M. International Crimes: Jus Cogens and Obligatio Erga Omnes. Law and Contemporary Problems. [online]. 1997. Volume 59, No. 4, pp. 63-74. [02 May 2020]. Available from: <https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1016&context=lcp>. Blom, Andrew. Hugo Grotius (1583- 1645). Internet Encyclopedia of Philosophy: A Peer Reviewed Academic Resource. [online]. 2013. ISSN: 2161- 0002. [01 May 2020]. Available from: <https://www.iep.utm.edu/grotius/>. Bull, Hedley. Does Order Exist in World Politics?. The Anarchical Society: A Study of Order in World Politics. 1977. Second Edition. London. ISBN: 978-0-333-63822-4. Bytyak, Yuriy; Yakovyuk, Ivan; Tragnuik, Olesia; Komarova, Tatiana; Shestopal, Sergey. The State Sovereignty and Sovereign Rights: The Correlation Problem. Man In India. [online]. New Delhi: Serials Publications Pvt. Ltd. 2017. Volume 97, No. 23, pp. 577-588. ISSN: 0025-1569. [01 May 2020]. Available from: <https://www.researchgate.net/publication/322233984_The_State_Sovereignty_and_Soverei gn_rights_The_Correlation_Problem>. Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United State of America) (Merits). [online]. Judgment dated 27 June 1986. [02 May 2020]. Available from: <https://www.icj-cij.org/files/case-related/70/070-19860627-JUD-01-00EN.pdf>. Case Concerning the Barcelona Traction, Light and Power Company Limited (Belgium v. Spain) (Preliminary Objections). [online]. Judgment dated 24 July 1964. [30 April 2020]. Available from: <https://www.icj-cij.org/files/case-related/50/050-19640724-JUD-01-00-EN.pdf>. Corbin, Arthur. Rights and Duties. Yale Law Journal. [online]. 1924. [30 April 2020]. Available from: <https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=3968&context=fss_papers >. Fastenrath, Ulrich; Knur, Franziska. Non Liquet. Oxford Bibliographies. [online]. 31 March 2016. [30 April 2020]. Available from: <https://www.oxfordbibliographies.com/view/document/obo-9780199796953/obo9780199796953-0130.xml>. Funk, David. Major Functions of Law in Modern Society Featured. Case Western Reserve Law Review. [online]. 1972. Volume 23, Issue 2, pp. 257-306. [01 May 2020]. Available from: <https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=2885&context=caselrev >. Guzman, Andrew. The Consent Problem in International Law. Berkeley Program in Law and Economics: Working Paper Series. [online]. 2011. [30 April 2020]. Available from: <https://escholarship.org/content/qt04x8x174/qt04x8x174.pdf>. Hossain, Kamrul. The Concept of Jus Cogens and the Obligation Under the U.N. Charter. Santa Clara Journal of International Law. [online]. 01 January 2005. Volume 3, Issue 1, pp. 72-98. [02 May 2020]. Available from: <https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1011&context=scujil>. International Criminal Court. Rome Statute of the International Criminal Court. [online]. 17 July 1998. A/CONF.183/9. United Nations Treaty Series, Volume 2187, No. 38544. [01 May 2020]. Available from: <https://www.icc-cpi.int/NR/rdonlyres/ADD16852-AEE9-4757-ABE79CDC7CF02886/283503/RomeStatutEng1.pdf>.


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15. International Law Commission. Peremptory Norms of General International Law (Jus Cogens). Report No. A/74/2010. [online]. 2019. [02 May 2020]. Available from: <https://legal.un.org/ilc/reports/2019/english/chp5.pdf>. 16. Loughlin, Martin. The Erosion of Sovereignty. Netherlands Journal of Legal Philosophy. [online]. 2017. Netherlands: Boom Juridische Uitgevers. Volume 2, pp. 57-81. ISSN: 2213-0721. [01 May 2020]. Available from: <http://eprints.lse.ac.uk/73501/1/Loughlin_The%20erosion%20of%20sovereignty_published _2017%20LSERO.pdf>. 17. Morita, Kiyotaka. The Issue of Lacunae in International Law and Non Liquet Revisited. Hitotsubashi Journal of Law and Politics. [online]. February 2017. Volume 45, pp. 33-51. [30 April 2020]. Available from: <https://hermes-ir.lib.hitu.ac.jp/rs/bitstream/10086/28304/1/HJlaw0450000330.pdf>. 18. North Sea Continental Shelf Cases. [online]. Judgment dated 20 February 1969. ICJ Reports 1969 p.3. [30 April 2020]. Available from: <https://www.icj-cij.org/files/case-related/52/05219690220-JUD-01-00-EN.pdf>. 19. Philpott, Daniel. Sovereignty. Stanford Encyclopedia of Philosophy. [online]. 31 May 2003. Revised on 25 March 2016. [01 May 2020]. Available from: <https://plato.stanford.edu/entries/sovereignty/>. 20. Situation in the Peopleâ&#x20AC;&#x2122;s Republic of Bangladesh/ Republic of the Union of Myanmar. [online]. Order dated 14 November 2019. No. ICC-01/19. [02 May 2020]. Available from: <https://www.icc-cpi.int/CourtRecords/CR2019_06955.PDF>. 21. The Corfu Channel Case (Merits). [online]. Judgment dated 09 April 1949. ICJ Reports 1949 p. 4. [30 April 2020]. Available from: <https://www.icj-cij.org/files/case-related/1/00119490409-JUD-01-00-EN.pdf>. 22. The Institute of International Law. Compulsory Jurisdiction of International Courts and Tribunals. [online]. 1959. Twenty Fourth Commission Report. [30 April 2020]. Available from: <https://www.idi-iil.org/app/uploads/2017/06/1959_neu_02_en.pdf>. 23. The International Court of Justice. Handbook. [online]. 2018. France. ISBN: 978-92-1-1573640. [01 May 2020]. Available from: <https://www.icj-cij.org/files/publications/handbook-ofthe-court-en.pdf>. 24. The International Court of Justice. Statute of the International Court of Justice. [online]. [01 May 2020]. Available from: <https://www.icj-cij.org/en/statute>. 25. United Nations. United Nations Charter. [online]. 1945. San Francisco: United Nations Treaties. [01 May 2020]. Available from: <https://treaties.un.org/doc/publication/ctc/uncharter.pdf>. 26. United Nations General Assembly. Report of the Independent International Fact- Finding Mission on Myanmar. Human Rights Council, A/HRC/42/50. [online]. 08 August 2019. GE.1913646(E). [02 May 2020]. Available from: <https://reliefweb.int/sites/reliefweb.int/files/resources/G1923674.pdf>. 27. United Nations Security Council. Statute of the International Residual Mechanism For Criminal Tribunals. Security Council Resolution: S/RES/1966 (2010). [online]. 22 December 2010. [02 May 2020]. Available from: <https://www.irmct.org/sites/default/files/documents/101222_sc_res1966_statute_en.pdf>. 28. Verma, S.K. An Introduction to Public International Law. 2nd Edition. Mumbai: Satyam Law International. 2012. ISBN: 978-8192120416. 29. Vienna Convention on the Law of Treaties. United Nations Treaty Series. [online]. 1969. Volume 1155. [30 April 2020]. Available from: <https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf>. 30. Yamauchi, Susumu. The Ambivalence of Hugo Grotius: State Sovereignty and Common Interests of Mankind. Hitotsubashi Journal of Law and Politics. [online]. February 1994. Volume 22, pp. 117. [01 May 2020]. Available from: <https://hermes-ir.lib.hitu.ac.jp/rs/bitstream/10086/8195/1/HJlaw0220000010.pdf>.


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Manifestation of the Rules of International Humanitarian Law in Outer Space Governance Pratham Sharma1 1Research

1

Member, Internationalism C/O AbhiGlobal Research & Media LLP pratham@internationalism.co.in

Introduction

The governance of outer space has posed an instrumental challenge before the international community for many years now. The early space exploration activities have facilitated the use of outer space in times of conflicts. Both, Soviet Union and United States of America had demonstrated the possible uses of outer space through their space exploration programmes. With time, political units like China, Germany, India, South Korea, Canada and European Union have also become stakeholders to the discussion regarding usage of outer space. Progress in time has brought forth different challenges related to outer space than the traditional question of governance. The most pressing of them all is effective regulation of conflicts in and related to space. This question has become a cause of concern for the international community due to the increasing usage of outer space for military purposes. The scope of space warfare includes ground-to-space warfare, such as attacking satellites from the Earth; space-to-space warfare, such as satellites attacking satellites; and space-to-ground warfare, such as satellites attacking Earth-based targets. The regulation of armed conflict finds its place in a separate branch of law altogether. The conduct of parties in the armed conflict is regulated by International Humanitarian Law. It is described as the branch of law which consists of a set of rules which seek to limit the effects of armed conflict due to humanitarian purposes. One of the major sources of International Humanitarian Law is the Geneva Conventions of 1949 and contains the large chunk of rules applicable in armed conflicts. The solution to the modern challenge posed by the exploration of outer space is also dependent on this branch of law. The question regarding the regulation of conflict in outer space primarily depends on the applicability of the International Humanitarian Law on activities in outer space. The applicability of the International Humanitarian law in outer space can be investigated on two fronts, one is whether the treaties that form International Humanitarian law allow for their application in outer space or not and the second is regarding the scope of the treaties concluded on space governance with respect to allowing application of International Humanitarian Law in outer space. While it seems imperative to investigate the application of the International Humanitarian Law or “laws of war” to the activities in outer space, it is even more important to first understand what outer space warfare stands for. There has been more than one understanding of the term ‘outer space warfare’ and before discussing the applicability of international laws to the same, it is crucial that we come to a logical and common understanding of the term for future reference and smooth governance of activities in outer space. It is only in the


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backdrop of this discussion that an investigation of the applicability of the laws and possibility of manifestation of them in the outer space can make sense. 2

Outer Space Warfare â&#x20AC;&#x201C; What it means

The general understanding of outer space warfare would mean confrontation in outer space. However, the question that surrounds this discussion is regarding the actual possible common meaning of the term outer space. Some suggest that the meaning is as it seems on the face of it and concluded that Outer-space warfare is the military confrontation between states. It not only includes military attack and defence happened in outer space and actions taken in outer space with its damage effects occurred in air space or on the earth, but also includes actions taken in air space or on the earth aiming at destroying or invalidating outer-space systems (Jie, 2019). Another approach has come to light, which seems to be a broad understanding of the term. This approach has proposed to include conflicts where any usage of space-based asset is made to gain advantage in the conflict under the ambit of the definition. To understand it in simpler terms, it means to communicate that any use of space based asset in a conflict on land, sea or air will be treated as part of the term outer space warfare. This would mean that use of satellites in conflicts on land, sea or air will be treated as part of outer space warfare since the use of a space based asset is being made in the conflict. This second meaning given to the terms seems rather controversial and tricky. It is very common to use satellites to conduct important military activities in present time. The intelligence collection and surveillance activities are largely if not entirely dependent on the use of satellites. To illustrate the point here, turning to Military strategic and tactical relay (MILSTAR) communications system of the United States can be helpful. The MILSTAR programme provides United States with jam-resistant and secure communications worldwide for the United States military. Without the use of MILSTAR, United States would have not been able to lead the campaigns in the War of terror initiated by them (Military Use of Satellite Communications, Remote Sensing, and Global Positioning Systems in the War on Terror, 2014). The satellite communications helped United States military in surveillance activities and intelligence gathering before the on-ground operations and most of the operations were based on their successful and reliable reconnaissance missions. The example of MILSTAR and its role in War on terror sufficiently exemplifies the importance of satellite systems in warfare and conflicts in the present time. It is impossible to get assent from states across the globe for such an understanding of the term outer space warfare. Apart from being impossible, it also is unreasonable to accept such an understanding. By accepting or approving such a meaning of the term outer space warfare would effectively mean turning back time and moving back towards the now primitive methods of intelligence gathering and conducting surveillance. In addition to the same, this particular suggestion also lacks the force of law both statutory and customary. There is no definition of the term outer space warfare in any of the statutes drafted as part of space law by the international community. When it comes to customary law, an important component of the same is state practice. It is imperative to have state practice for a particular principle to be treated as customary law. This specific understanding of the term outer space warfare lacks the state practice. On the other hand, the evidence of state practice for the general understanding explained above is available, as the states have always considered confrontation in outer space as â&#x20AC;&#x2DC;outer space warfareâ&#x20AC;&#x2122;. Thus, the force of the law also seems to be with the approach as explained by Liang Jie in his paper. It is also important to note that the common understanding of the term outer space warfare also includes destroying or targeting of satellites


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and space-based assets from earth. Even though no satellite or space-based asset has been destroyed or targeted by any country, but the technology has been developed and successfully demonstrated by states like United States, Russia, India and China. Anti-Satellite Weapons or ASATs are useful in deterring attacks and enhance the military strength of a country but also act as a potential threat to the essential satellites in space. The successful demonstration of such weapons by four countries and potential development by Israel, compels the international community to consider targeting of space-based assets from earth as a part of the understanding of the term ‘outer space warfare’. Accepting this as the common understanding of the term outer space warfare enables us to consider the application of International Humanitarian Law conveniently since till now no country has destroyed or targeted satellite of another. This also helps us build consensus on the meaning of the term within the international community since all states have been acting in accordance with such an understanding even in the absence of a statutory law. There is a common acceptance of this understanding and it can be considered to be included in the current draft code of conduct being negotiated for outer space. The investigation of the application of International Humanitarian Law in outer space will be based on this understanding of outer space warfare in this paper. 3

Application of International Humanitarian Law in Outer Space

The common understanding of the term outer space warfare enables us to further explore the application of the international humanitarian law or the laws of war as they are called in the outer space. It is important to look at the 1949 Geneva Conventions, since it forms a large chunk of International Humanitarian Law along with other sources like the additional protocols, Biological weapons convention, chemical weapons conventions and some customary principles. We look to explore the basic provisions of the 1949 Geneva Conventions to investigate the scope of the same for applicability in outer space activities. The very first part of the convention deals with the general provisions which include provisions regarding the application of the convention, respect for convention and the nature of the conflict. The Article 1 of the Geneva Conventions says “The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances” (Geneva Convention, 1949). The words used in the article 1 indicate a no-compromise attitude towards the compliance of this convention and it calls for respect in all circumstances. Further the Article 2 of the convention mentions that “In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict (International Committee of the Red Cross, 1949)”. The text of article 2 clarifies that the convention shall be applicable in all cases of armed conflict. It seems reasonable and logical to draw the conclusion that it is also to be respected and adhered to in cases of armed conflict in outer space or outer space warfare in general. When article 1 and article 2 are looked at collectively, it is clear that Geneva Conventions are applicable in all situations of armed conflict and no special factors can deem the conventions inapplicable since the convention is to be respected in all circumstances according to the two articles. Further the commentary on Article 2 of the Geneva Convention published in 2016 has specified in paragraph 218 that the term armed conflict means a situation when one or more States have recourse to armed force against another State, regardless of the reasons for or the intensity of the confrontation (International Committee of the Red Cross, 2016). There are no limits on the definition in terms of the mode of warfare and where it takes place, which renders the Article 2 inclusive of a situation where the armed


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conflict takes place in outer space. Owing to the text of the article and the commentary on the same, it seems logical to consider the application of the Geneva conventions in outer space as possible and permissible under the ambit of the convention. Even though the breadth of the expression in Article 1 and Article 2 seem to allow for the application of the convention to the cases of outer space warfare, it still lacks the recognition from the legal experts of International Committee of the Red Cross and the commentators on the conventions. While the commentators have not restricted the scope of the convention in their commentaries on article 1 and article 2, they have specified the phrase â&#x20AC;&#x153;land, sea and airâ&#x20AC;? while discussing other provisions of the convention in the commentary. It is important for the International Committee for the Red Cross to take note of the new sphere of conflict and recognise the application of the convention explicitly in the commentaries since in times of disputes over interpretations of the treaties; one generally turns towards the commentary on the same. The International Committee on the Red Cross can discuss the specific question about inclusion of outer space warfare and application of laws to it at the International conference in addition to the review meets for a comprehensive discussion on the same. The view of the International Committee of Red Cross would matter significantly since the Geneva Conventions was sponsored by the International Committee of Red Cross and have been given mandate in the Geneva Convention itself to not only lend assistance but also act as protecting power in cases of disputes over interpretation in Article 11 of the convention itself. Thus, it is very important at the outset to get recognition of possible application of Geneva Conventions in outer-space in the Commentary and Manuals of International Committee of Red Cross to get credibility for the argument that we are making with regards to its applicability and scope. Until then, it cannot be assumed that the general terminology shall permit the same satisfactorily. It seems reasonable to award the conflicts in outer space that recognition considering the threat is increasing with every passing year and the rapid development in space weapons lay down even more reason for us to consider the serious work on the regulation of conflict in outer space. Apart from the 1949 Geneva Conventions, the general application of International Humanitarian law is been said to be over all sorts of conflicts and use of all sorts of weapons. The International Court of Justice in their advisory opinion in the Nuclear Weapons case had mentioned in paragraph 87 that the entire law of armed conflict applies to all forms of warfare and to all kinds of weapons, those of the past, those of the present and those of the future (International Court of Justice, 1996). The court was analyzing the applicability of International Humanitarian law and its nature while dealing the question in the case. From the conclusion of the court it could be understood that the International Humanitarian law is not a devised body of law which would be restricted to the forms of warfare that were possible in 1949 or before that but rather it is a foresighted law which deems it applicable to all future forms of warfare and weapons. 4

Harmonisation of International Humanitarian Law and International Space Law

International Humanitarian law has already been introduced in the earlier sections, but introduction for International Space law is in order. It is the body of law which governs space related activities and mainly encompasses the five international agreements on space activities and its governance. The five agreements of Space Law include the outer space treaty, the liability convention, the Rescue Agreement, the moon treaty and the registration convention. The United Nations Committee on the Peaceful Uses of Outer Space (COPUOS),


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along with its Legal and Scientific and Technical Subcommittees, are responsible for debating issues of international space law and policy. The United Nations Office for Outer Space Affairs (UNOOSA) serves as the secretariat of the Committee and is promoting Access to Space for All through a wide range of conferences and capacity-building programs. However, still the international regulatory framework for outer space is in its early developmental stage and requires a lot of work. 4.1

Need for harmonization

The relationship between International Humanitarian Law and International Space law is intriguing since both are separate branches of law and to a certain degree also specialized in the respective fields. While there seems no inherent need to discuss the relationship between the two bodies of law since they are independent of each other and can be applied in the same manner, a situation of overlapping fields causes concern. If there is a situation of armed conflict in outer space, it would be preferred that both set of laws be applied independently in that situation. However, that is not possible without addressing the relationship between the two bodies of law, since there are inconsistencies on certain matters in both sets of law. To illustrate the point of inconsistencies, it is relevant to understand the case of 1968 Rescue and Return Agreement and third Geneva Convention of 1949 as an example. The Rescue and Return agreement mandates the return of a foreign astronaut that makes a forced landing outside of their national territory. In case of an astronaut who is downed in a military conflict while participating in the conflict within the territory of a belligerent state, the situation gets tricky. Ordinarily, such an individual who was participating in the conflict would be treated as combatant and be considered a prisoner of war since he has been downed in belligerent territory going by the principles laid down in the Article 4 of the Third Geneva Convention of 1949 (International Committee of the Red Cross, 1949). However, according to the Article 4 of the Rescue and Return agreement, such an individual is to be promptly returned to the home state. This raises a question of which provision should supersede the other and how do the two provisions be applied independently or how does the dispute between the two laws be resolved (United Nations Office for Outer Space Affairs, 1968). It is often suggested that possible ways to resolve the dispute without harmonization of the treaties is making use of the vertical hierarchy concept which is commonly known as Jus Cogens and the lex specialis maxim. While the usage or understanding of Jus Cogens may potentially resolve disputes between the space law and humanitarian law, there exists very little conflict between such provisions which can be dealt with this approach. Jus cogens as understood from the Article 53 of the VCLT are peremptory norms which supersede all other principles of law (United Nations, 1969). While there is no common acceptance of what constitutes Jus Cogens apart from a few principles, its constituents are understood sometimes on the face of it. At face value, there are elements of Jus Cogens in both the space law and humanitarian law. However, they donâ&#x20AC;&#x2122;t seem to be operating in opposition. The elements of Jus cogens under the space law could be observed in the understanding of non-aggression and provision regarding peaceful purposes under the Outer space treaty will supersede principle of International Humanitarian law since the body of law has focus on Jus in Bello and not Jus ad Bellum. Thus, there seems no contradiction or opposition between the two regimes on this front. While the principles that are Jus cogens under humanitarian law are related to prohibitions of torture and war crimes. The space law is void of any mentions or prohibitions of torture and war crimes, thus there seems no inherent conflict between the legal regimes


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on this front either and the humanitarian law can supersede the space law. Hence, the conclusion that it is unnecessary to use the Jus Cogens formula because there is no direct or implied conflict between International Humanitarian Law and the Space Law in this context seems reasonable and justified (Stephens, 2018). The lex specialis approach should also be discussed fairly before resorting to harmonization of both bodies of law. The maxim provides or means that “special law prevails over general law”. The principle doesn’t find place in the Vienna Convention on the law of treaties however has been recognized by International Court of Justice in many judgements and has even been given its due by the International Law Commission reports (Koskenniemi, 2007). As a mechanism for interpretation, it offers an effective solution for facilitating reconciliation between two conflicting laws or legal regimes, as is the case with the outer space regime and International Humanitarian Law. However, it is unlikely that the application of the lex specialis mechanism will result in the desired solution or answers regarding the two bodies of law. The concept of lex specialis can be best utilized when dealing with two different laws on same subject matter or similar field. It is only then that one can possibly compare the two and conclude on specific nature of the laws. When they are of two separate fields then it becomes difficult for one to compare both laws since the intention of the legislators differ largely due to the difference in fields. It becomes a choice of better intention than specific law for the one who tries to resolve the differences between the two laws on the basis of this mechanism. This can be instantiated by the Beef Hormones Case of the World Trade Organization’s appeals committee. It was explained that trade law and environment law have no boundaries and in case of maritime transport of oil the situation gets tricky. The activity links to both trade law and environment law. The responsibility of a ship owner should be governed by trade law categorizing the transport as commercial activity or by environment law categorizing it as an environmentally hazardous activity? The body mentioned that it would depend on which one chooses as the relevant frame of legal interpretation and thus the lex specialis rule does not help in case of two special laws or laws of two different fields (Koskenniemi, 2007). Thus, due to a lack of contextual relation or similarity between the International Space law and International Humanitarian law, it seems unlikely that the approach or the rule of lex specialis is going to lend assistance in resolving the contradictions between the two bodies of law. Both bodies of law represent special law considering both deal with two separate distinct fields of application. In such a scenario where both suggested ways of resolving the differences between the two bodies of law have failed, it seems reasonable and logical to resort to harmonization between the two bodies of law with a view to ensuring application of the basic principles of both bodies of law to the largest extent possible. The harmonization can take place by introducing relevant and important changes in the law to make it mutually applicable and ensuring a smooth regulation of armed conflict in outer space or outer space warfare in general. 5

How will Space law and Humanitarian law be harmonized?

The harmonization of both bodies of law can be done by introducing required changes in one of the bodies of law to allow for better application of both regimes simultaneously. In this context, it will be easy and helpful to bring changes in the International Space law and introduce provisions in the new drafts being negotiated as the body of humanitarian law has largely attained customary character and changing the same will affect the entire field of armed conflict. To bring this process of harmonization in effect, it is important to look at


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the International Space law and find possible gaps when applied with International Humanitarian Law. It is difficult to manifest each and every rule of the International Humanitarian Law with the International space law due to the vast nature of humanitarian law, however, a normative analysis and manifestation is possible for both branches of law. The most important principles of humanitarian law need to be incorporated in the space governance first to ensure regulation of armed conflict. Principles of distinction and proportionality form the most basic principles of the International humanitarian law and should be considered as the area of focus for manifestation and harmonization. 6

Manifestation of Distinction

The principle of distinction means that the parties to the conflict must at all times distinguish between civilians and combatants. Attacks can only be directed towards the combatants and there is a prohibition on attacks towards the civilians. It is one of the most important rules of International Humanitarian law for ensuring the protection of civilians. Fulfilment of the said principle is central to the idea behind the formation of the entire branch of law which as highlighted by the International Court of Justice, is on elementary considerations of humanity. The principle has been qualified as cardinal and crucial by the International Court of Justice for considerations of humanity during armed conflict (International Court of Justice, 1996). This principle of distinction should also be applicable in cases of armed conflict in outer space. The parties to the conflict in outer space should also be expected to apply the principle and distinguish between military and civilian objectives. It is clear and unequivocal that civilians or their property should not be targeted during the armed conflict as per the principles of International Humanitarian Law. The same should also be applicable in its entirety to the cases of outer space. Distinction is primarily looked at from two perspectives, one is distinction between civilians and combatants, and other is distinction between civilian and military objectives. One of the major problems in applying the principle in outer space is distinction between civilians and combatants. As also illustrated by an example above, the status of Astronauts is controversial. However, the problem can be resolved by making a brief change in the provision of the 1968 Rescue agreement for the status of astronauts. Firstly, it is clear enough that if an Astronaut is not taking part in combat then he/she enjoys the protection of the International Humanitarian Law and cannot be targeted by a belligerent state. The participation in combat renders the protection void under the law and therefore the belligerent can then target the Astronaut. To this extent some have argued that Astronauts were awarded the protection by the space law with a view to always protect them and ensure assistance for them. However, it is important to look at the Travaux Preparatoires of the Rescue agreement to understand the idea behind the provision laid down in Article 4 (United Nations Office for Outer Space Affairs, 1968). The concept of the prompt return of the crew and affording of the protection and assistance to the Astronauts was on the premise that the launch made by the state is in accordance with the Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space which allows for launches in the interest of peace and restricts use of force (United Nations Office for Outer Space Affairs, 1974). The participation in combat by the astronaut itself renders it out of the principles behind the formation of the rescue agreement and thus the point raised by Stephens and Steer stands on weak footing and Astronauts can be considered combatants are targeted in accordance with the principles of humanitarian law. Thus, the principle of distinction from the


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viewpoint of distinguishing between civilians and combatants poses no more challenges in terms its application in outer space. While the second front of application of Principle of distinction still poses an interesting question about distinguishing between military and civilian objectives. The major problem comes in terms of categorizing the dual use objects. It is said that owing to the nature of dual use satellites a question comes up regarding the categorization of these satellites into one of the two categories (Conflicts in Space: International Humanitarian Law and Its Application to Space Warfare, 2015). Belligerents should be allowed to target dual use objects or not because they may have effect on civilian properties as well. However, the question of categorization for dual use objects can be resolved by an academic analysis of the law on the same. It was first codified in the 1923 Hague Convention on aerial warfare where it was mentioned that “Aerial bombardment is legitimate only when directed at a military objective, that is to say, an object of which the destruction or injury would constitute a distinct military advantage to the belligerent.” A modern version of the same has been adopted in the additional protocol. Article 52(2) of Additional Protocol I provides that “Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage (International Committee of the Red Cross, 1987)”. The provisions that lay down the law on distinction between objects clearly calls for target of military objects but does not specifically mention or lay down objects which are exclusively used for military purposes or which contribute to military exclusively. Even the commentaries of 1987 on the Article 52 of the Additional Protocol I which deals with protection of civilian objects have clarified that the definition of military objectives as accepted under law is limited to “objects that in view of their essential characteristics, are generally acknowledged to be of military importance (International Committee of the Red Cross, 1987)”. Thus, as is accepted by most states and international humanitarian law in general, a prohibition on targeting the dual use objectives is not in place. Thus, a military confrontation or outer space warfare will potentially threaten the existence of dual use satellites in outer space. To avoid this problem of threat on dual use satellites, the better implementation of the Registration convention of the United Nations can be helpful considering, it requires state to specifically mention the space-based assets and their objectives. States can protect their civilian satellites by specifically offering the protection of law by registering them as civilian asset and using the same in line with the law and the convention. 7

Manifestation of Proportionality

The principle of proportionality is also an important principle of International Humanitarian law. The principle has been codified or textually mentioned in the additional protocol I of the Geneva Conventions. Article 51(5)(b) lays down an express prohibition on “An attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof which would be excessive in relation to the concrete and direct military advantage anticipated (International Committee of the Red Cross, 1987)”. It is important to secure the interests of the civilians and to ensure minimum damage to civilian property by the belligerent forces. In terms of its application in outer space, it is obvious that damage to civilian population will be close to zero since there is almost no presence of human kind in outer space and thus a conflict in outer space already fulfils the principle of proportionality on the face of it.


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However, there still are civilian objects which can be important to the civilian existence and a careful consideration of damage and the application of the principle maybe warranted. There is no specific part of the International Space Law which contradicts or presents opposition to the application of the principle of proportionality. International Space law is largely silent on the provisions to be applied in times of conflict or Jus in Bello and it is the body of International Humanitarian law which can be unequivocally be applied to the situations of outer space warfare. While an important aspect of the principle of proportionality which is worth mentioning is the certain degree of military discretion it awards to the belligerents. The principle leaves it to the belligerent to determine the expected civilian loss in comparison to the direct military advantage obtained. While lack of definition for terms like military advantage is also a big concern from a civilian point of view since it is also left on the belligerent to decide, it is important to recognise the observations made by the International courts in this respect. The International Criminal tribunal for Yugoslavia in Prosecutor v. Stanislav Galic had explained a test of ‘reasonableness’ to determine if the attack will be proportional and whether it stands the test of the International Humanitarian law or not (International Criminal Tribunal for former Yugoslavia, 2003) (Prosecutor v. Stanislav Galic, 2003). The reasonableness is important to be specifically mentioned in the context of outer space warfare as well since in absence of a limitation like this, the belligerent has excessive discretion in applying the principle. The International Court of Justice in the advisory opinion on Nuclear weapons case also in its essence mentioned about the test of reasonableness to determine what constitutes proportional and what doesn’t. While, even a test of reasonability does not provide the most reliable solution, currently it is the best option available to the international community considering the fact that this form of proportionality has attained customary status and any deviation from this would take time and also require extensive state practice for the same. 8

Potential changes required in Space law regime to facilitate harmonization

It is logical for us to first look at the most important treaty of the space law which is the outer space treaty. The treaty has an interesting provision in the form of Article 7 of the treaty which is as follows. It states “Each State Party to the Treaty that launches or procures the launching of an object into outer space, including the moon and other celestial bodies, and each State Party from whose territory or facility an object is launched, is internationally liable for damage to another State Party to the Treaty or to its natural or juridical persons by such object or its component parts on the Earth, in air or in outer space, including the moon and other celestial bodies” (Outer Space Treaty, 1967). The problem arises in situations where the two parties are involved in a warfare or armed conflict. The provision offers a challenge since compensation post conflict for the damages caused are unprecedented in the International Humanitarian Law regime. However, at the same time it is important to respect the intention of the treaty governing the activities in outer space. Article 15 of the Outer Space treaty introduces the scope for introducing amendments in the treaty and a brief change could resolve this problem due to the Article 7. A mere addition of the phrase: “except for in situations of armed conflict in outer space or outer space warfare” can resolve the problem and thus an amendment under the Article 15 of the Outer space treaty could be helpful. In addition to the same, a provision clarifying the law can also be included in the Draft code of conduct being currently negotiated by the international community for the activities in outer space.


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A change in the Article 2 sub clause 3 of the UN Registrations convention is also reasonable in harmonising both branches of law and allowing for better applicability of humanitarian law. The article calls for maintenance of registry of the objects launched into outer space (United Nations Office for Outer Space Affairs, 1974). The problem with clause 3 is that the authority of determination of contents for the registry is left on the state of registry and there has been no minimum requirements mentioned for the registry. It could have included minimum standards like the type of object launched and the purpose of the object launched to be mentioned mandatorily. Further there is no mention of the UN having power to request information from such state registry as and when they deem necessary. Thus, contents of such state registry will be more or less discretionary and classified. The situation surrounding this article of the registration convention is important in terms of better application of the principle of distinction. As already mentioned, that the statement of purpose of the space-based asset will be helpful to understand the characteristic of the object and further its categorisation into civilian or military objective by the belligerent state in times of conflict or warfare in outer space. Another change in the same convention, but in Article 4(1)(e) (United Nations Office for Outer Space Affairs, 1971) can result in improved application of humanitarian law in outer space. The article calls for the state to inform the secretary general of a “general function of the object”. This is not useful in case of dual use objects since a state may hide the military purpose that the object serves from the United Nations. For instance, the Athena-Fidus satellite, which is known to serve French defence, is described by France as ‘telecommunications satellite’ with no reference to its use for military space activities. To compare, Eutelsat 3B, a purely commercial satellite, is given the same description by France. It is evident that the French have misused the privilege of this particular provision of the treaty. In these cases, the UN Register does not help to determine whether these space objects are military or non-military due to the flexibility allowed to the state in providing information to United Nations. Thus, it is important to change the ‘part e’ of the article and specific function of the object can be requested for under the convention. The amendments suggested to the registration convention can be made in accordance with the provision laid down in Article 9 of the Convention. In terms of the provisions of the liability convention, an addition of the phrase “except for in situations of armed conflict in outer space or outer space warfare” is required to the Article 2 of the convention. It is a provision that also deals with damage and an addition to the provision is important for facilitation of harmonisation between both branches of law. The change can be incorporated in accordance with the Article 25 of the convention which lays down the procedure for amendments. All these changes suggested do not directly facilitate the harmonisation of the principles of International humanitarian law however indirectly facilitate the improved application of the principles like distinction and proportionality to activities in outer space. The changes are brief and can be made in accordance with the procedures laid down in the respective agreements. It seems reasonable to make the following changes to make sure that the regulation of armed conflict in outer space or outer space warfare is without complications and problems. While one important consideration could be to review the withdrawal clauses permitted in all these agreements considering some of the provisions in the respective treaties are crucial to unhindered governance of the outer space and seem imperative to be in force for all future outer space exploration activities and even for flawless regulation of outer space warfare or armed conflict in outer space.


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Conclusions

At the end of this paper, an unequivocal conclusion towards the research area is about the specialization of both branches of law and the complexities involved. It is clear from the research that both International Space law and International Humanitarian law are fields of specialization of the highest order and require a careful consideration before they are applied together. While both have certain contradictions in the current form, a few changes and few additions could harmonize both the branches in an effective manner which will be sufficient to ensure regulation of outer space warfare within the current framework of space governance. It is also clear from the investigation into the two branches of law that a specific manifestation of all of the rules of International humanitarian law into the International Space law or space governance is not possible owing to the vast subject matter of international humanitarian law. At the same it is also evident that manifestation of the most important principles of humanitarian law is crucial to regulation of outer space warfare and ensuring prevalence of elementary considerations of humanity. In this respect, principles of distinction and principle of proportionality are of unequivocal importance while considering the harmonization of the two branches of law. While this paper tries to explore the current space law regime and humanitarian law regime with a view to harmonize both to the extent of simultaneous application, it is also important to recognise the importance of the possible future additions to the space law regime and incorporating the approach of harmonization at this very developmental stage. The proposed PAROS treaty and the draft code of conduct for states in outer space which are in the developmental stage and are being negotiated will play a significant role in governance of outer space in future. It is important that states and drafters adopt this approach of harmonization at the very outset in order to ensure its simultaneous and effective coexistence with the International Humanitarian Law. All of these efforts collectively can be largely helpful in ensuring peaceful exploration of outer space and effective governance of the outer space in case a situation of outer space warfare arises in future. References 1. Conflicts in Space: International Humanitarian Law and Its Application to Space Warfare. Stephens, Dale and Steer, Cassandra. 2015. 2015, McGill Annals of Air and Space Law, Vol. 40. 2. International Committee of the Red Cross. 1987. Commentary on Additional Protocol I to the Geneva Conventions. International Committee of the Red Cross. [Online] 1987. https://ihldatabases.icrc.org/applic/ihl/ihl.nsf/Comment.xsp?action=openDocument&documentId=5F27276CE1BBB79DC12563CD00434969. 3. —. 2016. Commentary on the First Geneva Convention, 1949. [Online] 2016. https://ihldatabases.icrc.org/applic/ihl/ihl.nsf/Comment.xsp?action=openDocument&documentId=BE2D518CF5DE54EAC1257F7D0036B51. 4. —. 1949. First Geneva Convention, 1949. International Committee of the Red Cross. [Online] 1949. https://www.icrc.org/en/doc/assets/files/publications/icrc-002-0173.pdf. 5. —. 1949. Third Geneva Convention. International Committee of the Red Cross. [Online] 1949. https://www.icrc.org/en/doc/assets/files/publications/icrc-002-0173.pdf>. 6. International Court of Justice. 1996. ICJ Advisory Opinion in the case of ‘Legality of the threat or use of nuclear weapons’. [Online] 1996. https://www.icj-cij.org/files/case-related/95/7497.pdf.


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7. International Criminal Tribunal for former Yugoslavia. 2003. International Criminal Tribunal for former Yugoslavia judgement in Prosecutor v. Stanislav Galic. International Criminal Tribunal for former Yugoslavia. [Online] 2003. https://www.icty.org/en/press/judgement-caseprosecutor-v-stanislav-galic-stanislav-galic-s. 8. Jie, Liang. 2019. How does IHL apply in outer space and which challenges exist for applying existing rules in outer space? International Institute of Humanitarian Law. [Online] September 2019. http://iihl.org/wp-content/uploads/2019/10/Liang-Jie.pdf. 9. Koskenniemi, Martii. 2007. Fragmentation of International Law: The function and scope of the lex specialis rule and the question of 'self-contained regimes. International Law Commission. [Online] 2007. https://legal.un.org/ilc/sessions/55/pdfs/fragmentation_outline.pdf. 10. Military Use of Satellite Communications, Remote Sensing, and Global Positioning Systems in the War on Terror. Lee, Ricky J and Steele, Sarah L. 2014. 1, 2014, Journal of Air Law and Commerce, Vol. 79. 11. Stephens, Dale. 2018. The International Legal Implications of Military Space Operations: Examining the Interplay between International Humanitarian Law and the Outer Space Legal Regime. US Naval War College and Stockholm Centre for the Study of International Law. [Online] 2018. https://digital-commons.usnwc.edu/cgi/viewcontent.cgi?article=1719&context=ils. 12. United Nations Office for Outer Space Affairs. 1968. Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space. United Nations Office for Outer Space Affairs. [Online] 1968. https://www.unoosa.org/pdf/gares/ARES_22_2345E.pdf. 13. â&#x20AC;&#x201D;. 1971. Convention on International Liability for Damage Caused by Space Objects. United Nations Office for Outer Space Affairs. [Online] 1971. https://www.unoosa.org/pdf/gares/ARES_26_2777E.pdf. 14. â&#x20AC;&#x201D;. 1974. Convention on Registration of Objects Launched into Outer Space. United Nations Office for Outer Space Affairs. [Online] 1974. https://www.unoosa.org/pdf/gares/ARES_29_3235E.pdf. 15. United Nations. 1969. Vienna Convention on the Law of Treaties. [Online] 1969. https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf.


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The Dysfunctionalities of International Investment Law: An Unoffending Attempt at Balancing Investor Rights and Obligations Akash Manwani1 1Junior

1

Associate Editor, Indian Society of Artificial Intelligence and Law akash.manwani@isail.in

Evolution & relevant legal background

The International Investment Law is successful in contributing to the expansive proliferation of International Investment regime which has drawn the globe closer through the net of cultural, capital and modern technical exchange. With more than 3000 Investment Treaties and trade of approximately $1.5 trillion Dollars (2019), International Investment is the fastest growing sector in the international sphere. Just like every other industry, the COVID-19 pandemic has been a major blow to the Investment regime and it is speculated that the ripples will be felt long after the pandemic restrictions are relaxed. In midst of this, it is not to be forgotten that a relook at sustainable provisions in Investment Treaties is also necessary, since we are only a decade away from 2030 when the world’s goals relating to environment sustainability are to be achieved (UNCTAD, 2020). There are no determinate set of substantive rules forming the structure of International Investment Law, rather, it mostly consists of customary practices and legal principles which are derived from extensive framework of international investment agreements (WHO FCTC Secretariat Knowledge Hub, 2019). Foundations of International Investment Law are built upon the principles of customary international law under the concept of meting “minimum standard” of treatment to aliens by a host state (Moltke, 2004). A peek into the 17th Century reveals that, from the times when inter-state mobilization of nationals increased and nations were sequestered within themselves, nationals of developed States were more concerned about travelling to underdeveloped provinces since there was no security with respect to fair treatment and adequate compensation under the domestic law of the host states. These nationals were at the mercy of diplomatic intervention by their own State to protect their interests. With a surge in colonial expansionist tendencies, European states were more concerned about protecting their nationals in under-developed states hence they frequently entered into Treaties for Freedom of Trade, Commerce and Navigation with the under-developed states. This insecurity regarding “minimum standard” treatment in underdeveloped States can be equated today, to the concerns of states and foreign entities investing capital in other states. On the other hand a different school of thought was building on the lines of protectionism wherein the host States were vying for greater domestic autonomy over foreign citizens. The turf was open for developed and under-developed States to exploit their leverages and manage their interests as early as 1868. During that time, Carlos Calvo, famous Argentine Jurist, propagated more sovereignty for the host States’ rule over international standards which were highly influenced by developed states. He enumerated three main pillars to set standards for treatment of foreign nationals which have become instrumental in the


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struggle for balance of interests today. The three fundamental principles are: adjudication of rights of foreign nationals by host States, abolition of favored treatment for foreign nationals and retain exclusive jurisdiction of domestic courts for matters related to foreign nationals. Thus began the rivalry of developed and under-developed States for race to the top in beneficial exploitation of foreign capital. The Calvo doctrine would partially fail to stand its ground against overwhelming domination of Investors and capital exporting states over the years (Newcombe, 2009). The wave of liberalized trade movement pre-WWII took a momentary pause during the war and rekindled post war through International interventions and voluntary initiatives of States. Borchard (1915) in his Diplomatic Protection of Citizens Abroad notes “legal position of aliens has in the progress of time advanced from that of complete outlawry, in the days of the early Rome and the Germanic tribe, to that of the practical assimilation of nationals, at the present time.” Among the European nations with paramount bargaining power, there existed a protectionist regime with a balance of investor rights and obligations but when these very transactions transformed to a global scale with unequal leverages, commercial interests trumped over indigenous community protection, financial sustainability, environmental protection and corporate social responsibilities (Miles, 2013). Contrary to popular beliefs, the first treaty signed between Germany and Pakistan in 1959 (Treaty for Promotion and Protection of Investments, 1959) does not mark the beginning of present day International Investment regime. While it was a turning point for modern day instruments like Bilateral Investment Treaty (BIT) and International Investment Agreements (IIA), it does not offer itself as a source of inherent flaws and lack of reciprocity existing in the fundamental roots of the present-day International Investment environment. A major contribution to the body of International Investments Law is supplied by substantive Treaty provisions, Arbitral awards and principles laid down by multilateral International Organisations. The relevant history put forth forms the basis of reflecting on fairness of the International Investment environment without dissuading from the fact that Investments primarily are motivated by profits. 1.1

Role of International Organizations and multilateralism

Post WWII, in 1961, the United Nations General Assembly (UNGA) adopted a Resolution (United Nations , 1961) “International Trade as the Primary Instrument for Economic Development” through which the United Nations Secretary General was assigned the task to initiate dialogue with various governments for resolving problems involved with international trade law. As a result of this, subsequent Resolutions led to the creation of United Nations Conference on Trade and Development (UNCTAD) which was built on the consensus of the States to increase business connectivity and foreign reserves for domestic growth. Multilateralism has led to successful promotion of sustainability goals with adequate participation of the private sector. The United Nations Global Compact is one such instance where private players, Governments and NGOs have voluntarily come together to abide by a set of ten sustainable development principles covering Human Rights, Labour, Environment and Anti-corruption. It was formed in the year 2000 and is the world’s largest corporate sustainable development initiative with more than ten thousand business participants till day. Participants affirm to the principles and inculcate it into the functioning and corporate practices of their business (United Nations Global Compact, 2020). Another instance of corporate integration is the United Nations Principles for Responsible Investment (UNPRI) launched in the year 2006, under the auspices of United Nations Global Compact and the United Nations Environment Programme Finance Initiative (UNEP FI). The


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principles propagated by UNPRI are homogenization of environmental, social and governance factors with investment analysis, decision making process, timely disclosures and reporting on developments towards integration. It has been a major success with signatories growing from 100 to more than 3000 who are currently abiding by the principles enumerated by this partnership (Principles of Responsible Investment, 2020). These multilateral organisations are specifically important since Industry-state partnership is harbinger of hope for meaningful negotiations to create balance. 2

International Investment: Means of exploitation?

This section is an analysis about the shortcomings of the under-developed or developing countries on the front of risk analysis, fiscal threats and compromised sovereignty. This analysis is being undertaken by considering the problems faced by the State and which aspects in particular left the States feeling exploited or cheated. The lack of reciprocity in International Investment dealings will be reflected through the issues faced by the State which in turn would help formulate recommendations based on better understand of Stateâ&#x20AC;&#x2122;s needs. 2.1

Sustainability aspect

The United Nations has predicted that we might only be 10 years away from an irreversible climate change catastrophe (United Nations, 2019). The COVID-19 pandemic should be a reminder that global catastrophes are not just a part of fiction movies but exist in reality. Sustainability cannot exist without concentrated group efforts of all the market players taking concrete steps towards a meaningful direction and it cannot be denied that over the years it has gained traction. Sustainable Development has become sine qua non for policy makers in the recent years. It has gained utmost importance after the 2015 United National Sustainable Summit where 193 countries adopted a resolution (Transforming our world: the 2030 Agenda for Sustainable Development, 2015). The States have always pushed for sustainably sound Treaties for optimal use of their invaluable natural resources. Pac Rim vs. El Salvador (International Centre for Settlement of Investment Disputes, 2016) was a major breakthrough for sustainable development concerns of host States. The Claimant investor had challenged the decision of the Republic of El Salvador which rejected mining accessions to the Claimant on the grounds that the Claimant failed to satisfy the host State that the chemical processes involved in the mining activity will not harm a huge resource of drinking water for local people. The Tribunal recognized the possibilities of environmental hazards which the project might pose and rejected the claim. To further highlight modern global trends towards sustainability, there have been several industry-led partnerships for an agreed set of corporate code of conduct. For instance, the Coalition for Environmentally Responsible Economies (CERES) is an organisation with unique blend of signatories ranging from top financial institutions, companies and fund managers to environmental and public interest groups. CERES was formed in response to the 1989 oil spill of Exxon Valdez which served as a clarion call for several market players to take a more sustainable approach towards business. The CERES principles are inter alia committed to protection of natural resources, biosphere, restoration of environment and compensation to persons affected by corporate wrongdoings (CERES). Similarly, the ICC: Business Charter for Sustainable Development is setting an example for industry driven conscious approach towards healthy environment. It promotes innovation in different


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dimensions of sustainable development, amending governance structures, multilateral and dynamic approach and top to bottom alignment towards sustainability and so on (International Chamber of Commerce, 2015). In 2003, through an association of NGOs globally, the Collevecchio Declaration on Financial Institutions and Sustainability was floated showcasing responsibilities of Financial Institutions with respect to their commitment towards sustainability principles like ‘do no harm’, accountability, transparency and responsibility for businesses. Although this Declaration got major support from public interest groups, it did not receive an equally jubilant response from the financial institutions (Bank Track, 2003). Although a more conscious driven approach can be seen, the present state of sustainability is not as satisfying and straightforward as it looks. It is only in these modern times that the Investors have realised that it is beneficial for them to keep up with the sustainability trend. There are serious apprehensions that the reason for exponential growth of international investments during the late 20th Century was possible because Investors maintained safe distance from sustainable development provisions which would have cost them a share in their monetary incentives. Apart from oral commitments and partnerships, very little is incorporated in Treaties. Ferreira (2017) in her work undertook a deep study of integration of sustainable development into international investment regime. The conclusions suggest that out of thousands of treaties, only few have incorporated the sustainable development provisions and the ones in which these provisions exist, are in extremely vague terms. These provisions take the character of soft declaratory nature rather than normative prescription. Some countries tend to be homogenous in their sustainability applicability of their treaties while some adopt a selective approach in treaties. Lack of an established model creates issues of disparity which makes it difficult to maintain a reputable sustainability profile for a State. An effective acceptance of commitment towards sustainability will take place only through installations of relevant provisions into new Treaties and revision of older ones. On a positive note, industry led partnerships will open up channels for dialogue to include such provisions. Environmental aspect Environmental issue is a subset to a larger framework of sustainable development provisions. Pro-environmental policies go against the prospects of Investors to gain immediate economic incentives by exploiting scare natural resources whose economic, social and political costs are borne by the host State. Several International financial institutions have a special interest in countries with weak environmental governance without realizing that it is actually obligation of the developed countries to foster environmental governance throughout the globe. In Santa Elena vs. Costa Rica (ICSID, 2000), the Claimant investor demanded compensation against State’s decision to extend a public park on Claimant’s property. Rather than emphasizing on the claim of expropriation, Claimant insisted on compensation and the Tribunal, without appropriating due regard to State’s international obligation to preserve a unique ecological site of Santa Elena, passed an award for $16 Million USD against the host State. Due consideration was not given to environmental obligations and an ultra-mechanical contractual interpretation of expropriation was accorded. There have been several cases for such extortionate damages against the host States and Governments. This is also a major issue raised by critics of the dispute resolution mechanism in Investment regime where a handful of Arbitrators adjudge on matters involving serious public policy concerns. On the other hand, in the rat race to gain as much Foreign Direct Investment (FDI) as possible, State’s relax essential domestic environmental norms. There are evidences of States citing FDI competition as the reason for not implementing environmental regulation


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or bringing about tax reforms. More often than not, environmental exploitation cannot be valued hence it misses out as a major concern in decision making process. For instance, damage caused to the health of the population of a local city cannot be put in numbers when a factory releases hazardous effluents into a river. Similarly, at a much larger level and a real time incidence, due to the sulphur dioxide emissions caused by the United Kingdom (UK), the Norwegian rivers and forests were critically damaged on account of acidification of rains (environment.no, 2018). These indefinite externalities lead to an inefficient risk analysis by the State which was already clouded by the bid to gain more FDI. Ultimately, imbalanced allocation of already scarce environmental resources will have major welfare implications and disparity. The economic benefits incurred from FDI become highly distorted when collateral damages like domestic disinvestment and loss of domestic natural resources are ignored (Mabey, August 1999). Environmental protection is not a State’s backyard issue anymore. It has wider implications hence, international intervention in such matters is necessary despite of both the contracting parties agreeing to disturb the state quo. Corporate Social Responsibility Corporate Social Responsibility (CSR) is a fairly recent and progressive concept in the modern business governance which consists of a principles, code of conduct and recommendations. There are mandatory provisions for Corporate Social Responsibility at national level but even in the sphere of International Investments, a hint of CSR exists but almost without any teeth. The only comprehensive document enumerating the corporate responsibilities of every multinational business is the OECD Guidelines for Multinational Enterprises (OECD, 2011) which consists of recommendations into the areas of human rights, environment, employment, industrial relations, bribery, extortion, consumer interests, competition and taxation. These guidelines are meant to achieve an intersection of CSR and sustainable development principles. There are rare examples of Treaties where CSR provisions have been incorporated. Canada has actively included CSR principles in its BITs and in a particular BIT signed with Burkina Faso (2015), the agreement mentioned liability of parties to maintain the CSR expectations of international levels. These CSR principles specifically cover labour, anti-corruption and environmental issues. In addition to this, in a BIT signed between Canada and Senegal (2016), parties have agreed to make further investments whose impact will contribute to upliftment of the society. The sustainability angle covers much wider issues of labour, environmental and financial regulations. As mentioned above, there have been several corporate and state level partnerships for a more sustainable regime, satisfactory results will only be seen when both the parties in Investment treaties lay down their obligations in specific terms. 2.2

Interference in domestic policies

The Investors obsessively protect their Investments to an extent where even a possibility of threat to their Investment urges them to take actions for reliefs pre-emptively. The eligibility of Investors to sue the States directly, post SPP v. Egypt (ICSID, 1992), has posed unprecedented challenges for the States. These potential threats feared by Investors are usually on account of different acts of the State. When a State proposes to bring in a legislation which will have an impact on the Investor’s business, the Investor may start issuing warnings by demanding huge compensations or withdrawal of business from host State. This has a “chilling effect” on the domestic regulations of the State (Mohamadieh, 2019). There have been pre-emptive attempts by the Investors to influence domestic policies of the


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State which works in their favour but the real impact can never be known as threats and reaction to those threats may not always be revealed. There have been claims in the nature of “ordering” the host States to refrain from legislating. Arbitral Tribunals in some Awards have held that Investors cannot put an impediment on the sovereign power of the States to bring laws through mere contractual obligations (Górska, 2015). Investors have their own reservations, representations and commitments in the Investment Treaties. It is important to acknowledge that Investors input huge amounts of capital and hence feel the possessiveness towards their investment against fraud, misappropriation and improper losses. Hence, it is important to safeguard the Investors and hand them appropriate legal tools to exercise this protection. These concerns of investors have sufficiently empowered them and in turn have enabled them to receive protection over the years. It is to be noted that there have been very few instances of Governments going rogue in Investment Treaties. Improper treatment to the Investors in fact, leads to reputational damage to the host State itself, who might then face blacklisting for Investment during due diligence by different companies. The rate of expropriations in the recent years has drastically dropped and even otherwise, there are insurance mechanisms being made available from Multilateral Investment Guarantee Agency, a World Bank affiliate for Investors who are seeking substantial protection for their Investments (Stiglitz, 2015). Could the State waive off its sovereign power to manage internal affairs through an Investment Agreement? Such an Agreement itself should be void as unlike accession to an International organisation or Treaty with other States, Investment Agreements with corporations do not involve international subjects. Corporate entities have separate legal entity at international level for criminal matters only. If legislation is brought in to unfairly affect the Investor then the Investor has an option to be compensated but waiver of sovereignty through Investment Agreement should be against public policy. 3

Backlash against attempts towards sustainability

The apprehensions about reason for exponential growth of international investment, being lack of sustainable development interferences, actually gets substantiated when noticeable reduction is seen after regulatory efforts to bring sustainable development are around the corner. To understand why the backlash took the form of reduced Investments, it is important to see the actions of the States which led to such backlash. States were not completely complacent about the pressure on domestic structure caused by foreign investment. Due realisation was bestowed and some attempts were taken throughout the 20th Century against the supposed biased framework of International Investments Law. The key reforms which showcase resistance of host States include the agrarian movement of the Soviet Union and Mexico (1915-38) wherein major uncompensated land seizures took place in the name of nationalization (1938), the post-colonial States’ participation in New International Economic Order which helped the host countries secure permanent and total sovereignty over their natural resources (Permanent Sovereignty Over Natural Resources, 1962), the emergence of political and social movements with the efforts of local as well as international nongovernmental organisations (NGOs) at the grassroots level helped in shifting the status quo through civil unrest and domestic opposition (From Resistance to Renewal: The Third World, Social Movements and the Expansion of International Institutions, 2000) and the environmental activism in general invited combat for capital exporting nations (Miles, 2013). Even the World Trade Organization in its Preamble recognizes the rights of its


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Members to retain autonomy to regulate or introduce reforms in their own territory as a matter of national policy (WTO). Naturally, a backlash from the developed States was inevitable as these actions impacted monetary incentives. The powerful states maintained the generalist international nature as the best way forward since it guaranteed investor protection through various legal tools like modern day BITs, doctrine of acquired rights and the concept of ‘internationalized’ contracts (Miles, 2013). On account of apparent defects stemming from an outdated objective, the IIAs and BITs were under critical review, and thus the United Nations Conference on Trade and Development (UNCTAD) also introduced reforms into the Model Investment Agreement treaties to inculcate elements of sustainability (2016), environmental protection, greater investor obligations and revolutionize Investor State Dispute Settlement system (June, 2013). Soon after these reforms were implemented in 2017, for the first time a reduction in traffic of International Investment was noticed. A UNCTAD report of 2018 shows that for the first time, the number of effectively terminated IIAs (22) exceeded the number of newly concluded treaties (18) and the number of new treaties entering into force. There has been a downward shift in the number of new treaties concluded since the year 2009. The year 2017 noted lowest number of new agreements signed since the year 1983 (May, 2018). A story of a failed yet noteworthy attempt by the United Nations Centre for Transnational Corporation (UNCTC) is a perfect example of private-sector led backlash to a meaningful attempt for more accountability of transnational companies. The UNCTC’s aim to bring about a consensus for a United Nations code of conduct to regulate the practices of multinational corporations led to severe criticism and was being considered as a nefarious attempt to imbalance the power dynamics. These actions of the UNCTC put itself on radar of influential corporations and capital exporting nations who were actively looking out for ways and means to curb autonomy of the UNCTC. Ultimately in 1992, when the United States (US) managed to place its confidant with United Nations Secretary General, dismantling and gradual abolition of the UNCTC began. The agency’s essential role was watered down to the job of ‘promotion’ instead of ‘monitoring’ the actions of transnational corporation (Patomäki, 2004). In October 2015, more than a hundred thousand protestors took to the streets in Germany against a multi-lateral Transatlantic Trade and Investment Partnership (TTIP) between US and the European Union which proposed to enable foreign Investors to sue the host State’s governments if domestic policies impact the profits of the Investors (Williams, 2015). International legal scholars like Professor Martti Koskenniemi expressed deep concerns regarding the TTIP which stem from the fact that international investments tend to make way in-roads towards core domestic policy issues and adjudication of disputes pertaining to the same have long lasting effects. Hence, the adjudication cannot be trusted with a handful of arbitrators who act hyper-technically on contractual lines (Helsinki Times, 2013). On the other end, from Investors point of view, Caron and Shirlow in their work (2016) have critically considered the consequences of ‘backlash’, taking the issue of TTIP as a catalyst to judge the unintended impact caused on account of misdirected assumptions. The identification of backlash is pertinent to the meaningfulness of the movement itself. Is the backlash solely against establishing of the rule under TTIP? Is it against arbitral process altogether? Is it against alleged hegemony of Investor protection regime? These questions need to be answered before a fanatic backlash calls for an unmanaged reform which might have the potential to eradicate a well-established system of Investment. This, by no stretch of imagination, suggests that there is no scope of adequate reforms in the dispute resolution sector but that does not call for existential threat to the system. Investors’ justification for


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backlash can be as simple as loss of profits. States cannot submit to waiver of sovereignty but can compensate elsewhere to secure investment. Interestingly, States always have a leverage since one aspect while dealing with Investors is that their actions are profit oriented and not politically oriented which makes comprehension of the backlash easier. 4

Recommendations for balance

Rigid repudiation regarding acceptability of sustainable development movement by the corporates on one hand and the inability of the States to maintain counter-extremist stability in Investment Agreements on the other hand, are only causing dipping Investment. Undesirable motives of parties are further supplemented by distrust caused by apparent defects in the framework of law itself which has received no consideration or motivation to be rectified. Recommendations are in the form of dissecting expectations and needs of the parties to have less hostile Investment regime. 4.1

Understanding corporate needs

To master this section, it is important to temporarily incorporate capitalistic tendencies as treaty making is a consensual issue wherein one of the parties is major transnational corporation. Even for the interest of States wherein access to expertise, capital and employment is at stake, overall legal system should facilitate and not derogate. The best way to understand the corporate side is through their lawyers and different types of political risks that are enumerated by several international law firms who have represented such Investors. Investment Treaties mostly span through several years making Projects susceptible to change in governmental and political structures. Different legal tools for guarantee and insurance policies directed towards wrongful governmental action like partial risk guarantee (PRG) and public political risk insurance, specifically enumerate concerns of foreign investors when investing in developing or under-developed countries. For instance, a Partial risk guarantee covers commercial lenders and private projects from risks associated with change of governments wherein the new government might disown the agreement with the investor in toto. Further, in an another instance, if a company intends to invest in a Project in an underdeveloped sub-Saharan African State and fails to secure a direct guarantee from the host government against improper governmental action, then the company has different avenues like the World Bank, Multilateral Investment Guarantee Agency (MIGA) or private lenders to avail and secure their investment (Dhar, 2017). These insurance policies and guarantees enumerate that the “improper governmental action” pertaining to the host country could mean wide array of risks like payment or performance risk, regulatory risks like change in law, cancellation of licenses and tariff adjustments, currency risks like transferability and convertibility, political risks like expropriation, war and civil disturbance. The World Bank also provides Project based and Policy based guarantees. The Project based guarantee covers commercial lenders, private projects and foreign public entities against failure of the host government to meet payment obligations. The Policy based guarantee secures commercial lenders against debt service payment defaults by the host government on account of transposition of state’s funds towards a sustainable policy objective through budgetary allocations (The World Bank). The relevant risks to consider for the analysis of this paper’s titular issue are mainly political risks wherein the hostility of different states has been uncovered. The mechanisms of these guarantees and insurances exist because these are common instances in foreign investment regime. Hence, Investor protection is legitimized because of several counter party-political risks existing.


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An outright rejection of “proposals to politicize dispute settlement by giving states control over adjudicators, introducing self-judging defenses, permitting retroactive treaty amendment through state practice, or relaxing the rules of treaty interpretation” are the proposition proposed by Hon’ble Charles Brower, Ad Hoc Judge of Iran-United States Claim Tribunal in his “What’s in a Meme? The Truth about Investor-State Arbitration: Why It Need Not, and Must Not, Be Repossessed by States” (Brower, 2014). This work gives a scathing reply to the critics of the present Investment Arbitration system and upholds that the Investment regime has in fact brought about more prosperity and transparency in the developing nations than cause problems or losses. The most striking feature of his work showcases response of State’s to demonize Investment Arbitrations, thereby calling for provisions which would enable states to select all the Arbitrators in case of disputes. According to the author, there have been extreme attempts made to ensure greater control of States. The critics are calling for doing away with the entire existing investment arbitration system and replacing it with a more neutral forum wherein the States will be given more power in the dispute resolution process. This is all without realizing the fact that about 50 years ago, an intelligible consensus had come about to set up a neutral dispute resolution system which will adequately avoid gunboat diplomacy. Greater control to States will politicize commercial Agreements and the system would go back 50 years to square one. The sensationalist ideology that crony capitalist interest has sucked on the poor economics for personal gain is actually a threat to a well-established internationally cooperated investment regime. There is a strong reason that States not only willingly sign Investment treaties but also make all possible arrangements to accept as much Foreign Direct Investment (FDI) as possible. It is due to foreign investment that developing or under developed countries get exposed to modernization, develop technical abilities, learn sophisticated management, secure human capital and superior network of opportunities (Ozturk, 2007) and (OECD, 2002). The treatment meted to the Investors by the States itself is a measure of security because the reputation of the State to ensure safety of investors decides its viability for investments and development. If a State takes an unjustified provocative stand then that itself goes against their interest of securing foreign capital (Allee, 2011). The rationale of Investor protection is further substantiated since the counterpart is a sovereign State which is much more powerful and has several legal tools at their disposal like violation of domestic law, tort, criminal penalties, extraditions, social and political interventions and so on. It is rationally in the interest of Investors to abide by the domestic law for their incentives to mature and multiple hence only 4 claims have been raised by the State before ICSID (Brower, 2014). Investors rarely indulge in breaches. As far as Investment Treaties acting as an impediment to States’ autonomy is concerned, it is a self-imposed restriction. For instance, when States sign Bilateral or Multilateral Agreements for a cooperative Organization, they abide by the constitution, goals and code of conduct of that Organization. Just as under International law, allegiance to a particular code of conduct on account of Multilateral Agreement is not considered as an impediment to sovereignty of the signatory State, similarly, Investment Agreements being a document signed with consensus ad idem should not be considered as obstruction to sovereignty. Thus, as per an Investment Agreement when the State consents to not take a recourse to a harmful legislation, it will have to bear the consequences because even International Law purports that national legislation should not be a ground to override International Law (Vienna Convention on the Law of Treaties, Article 27 , 1969) and (Brower, 2014). Although Investment Agreements cannot be an instrument to hamper sovereignty of a State, an Investor would argue that States waive sovereignty time and again which makes the idea of sovereignty abstract in this limited environment. There is a direct impact on the Investments on account


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of State’s action regarding regulating the treaties. There have been suggestions of ultimate autonomy over appointment of Arbitral tribunal judges. This would lead to politicization of the independent dispute resolution process. In a situation where the Investor’s actions cause human rights violations, the States are well within their right to impose sanctions, terminate contracts and pursue criminal charges. At the end, the author concludes that the hostility against International Investments “undermine continuing economic development, improved governance, and enhanced rule of law promoted by Investment Treaties”. 5

Understanding States’ needs

In an OECD Report (2016) titled “The Impact of Investment Treaties on Companies, Shareholders and Creditors” gives an adequate insight into the expectations and aspirations of investors towards host States. Firstly, the report substantiates the belief that the rationale of investor protection is to safeguard the Investors from ‘non-commercial’ risks. Several rules pertaining to corporate governance differ in an international environment where more fragmented nature of companies is unveiled. Unlike in a national environment, the investor company’s shareholders have a right to raise claims for reflective losses on account of governmental misconduct or breach, depending on Investor treaty. This ‘cushy position’ has a unique effect on corporate governance because of transposition of central power from the Board of Directors to the secured Shareholders. There is due acknowledgement of the fact that claims of monetary damages are preferred over claims of non-monetary damages like annulment of improper governmental action. Many first-generation as well as modern treaties are silent about course of different remedies for investors in case of improper governmental action, leaving a blown-out of proportion option of Arbitration at a preliminary stage to protect their rights as the only option. It needs to be understood that claims befitting non-pecuniary damages are also converted to pecuniary ones on account of lack of unpartisan trust in the host State’s courts. The easy access to Arbitration coupled with each Shareholders’ eligibility to claim reflective losses creates unprecedented problems for the State. Most of the state’s needs are covered throughout the paper. Other major aspects revolve around concerns of the Investors pertaining to regulatory shifts by the host countries like change in licensing requirements, functioning of the business etc. It is the resolve of the host States that such issues should be adjudicated in domestic courts while investors lay their trust on Investor-State Dispute Settlement (ISDS). The domestic court may adjudicate the issue based on the domestic legal setting and may decide on the administrative action based on the national law. While in ISDS, the elected or authoritative State itself is involved and the Investors, in both the situations may vie for international principle based scrutiny which affords them adequate protections. This friction has led to legal innovation and introduction of alternative remedy in international sphere wherein the provisions may provide that domestic remedies are to be exhausted before raising claims in ISDS (Gaukrodger, 2017). The State’s remain justifiably strict in giving commitments relating to avoidance of dynamic regulations and meting favourable treatment to the investors because the host countries enter into several treaties with other private players, public entities, other states and multilateral organisations whose interests and commitments need to be meticulously balanced to avoid overlapping of obligations. There are several outdated Treaties today, wherein the interests of the Investors are impossible to be assimilated in the present context. Several clauses in the Treaties cause a “no u-turn” effect which makes negotiation for revision of treaties particularly difficult. Withdrawing or terminating the Treaty puts the


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States in a precarious position wherein ultimately the host States face substantial compensatory and legal costs (OECD, 2014). There is a direct link between development of a domestic industry and foreign investment which facilitates expertise, capital and international network system for the domestic industry to flourish. The host state, while formulating a policy, should consider participation of foreign investor in the early stages of development of a new industry which will automatically assign more importance to harmonious transactions. The sustainability aspect has also become a no-negotiation zone for States and to presume that the corporations are against sustainable goals is not true. Corporations have in fact, embraced and shared sustainability aspirations which were fortified after realization that the business model actually benefit in the long term due to innovative sustainability process. It will only take an irresponsible and slow-moving, non-sustainable company, to move against the mainstream globe trends and practices (IISD). States have not been able to justify how their greater involvement in Arbitration procedural aspects will not politicize the issues. States have not offered an adequate alternative to the present Arbitration system. More often than not, it is not the States but public interest groups which express concerns over losing State autonomy. 6

Vague umbrella clauses

The Umbrella clauses help investor enforce State’s commitments, not only in the Investment contract but also in the BITs. This is a generic clause in very vague terms which enables investors to escalate basic administrative deficiencies to breach of contract. The Umbrella clauses had been existing since 1950s but surprisingly it was really not considered as the source or core of the problem or even necessary for criticism until recently in 2005 (The Umbrella Clause in Investment Arbitration – A Comment on Original Intentions and Recent Cases, 2005). There were two possible interpretations of this clause. Firstly, the narrative was set by Arbitrators in the case of SGS v. Pakistan (2003) which put a rest to the dispute by interpreting umbrella clause to cover only substantial contractual obligations and not the obligations in the BIT. Soon after this decision, in 2004, in the case of SGS v. Philippines (2004), the supposed narrow interpretation was done away with and SGS v. Pakistan (2003) was overruled in spirit. The 2004 Award gave an expansive interpretation to the umbrella clause and set it up to cover a broad range of commitments, which technically raised the issue of breach to be judged on the touchstone of international law (Lowe, 2007). There are several aids of interpretation available to the Arbitrators like placing of the umbrella clauses reveals much of the intention of the parties. In the case of SGS v. Pakistan (2003) the Tribunal ruled that the placing of the umbrella clauses shows the substantive nature accorded to it and is not a part of “other commitments”. Yannaca (2008) has compared different treaty practices with umbrella clauses and concludes that “proper interpretation of the clause depends on the specific wording of the particular treaty”. It is suggested that the jurisprudence in Investment disputes is ever changing and evolving, making it impossible to derive a speculation or conclusion with respect to the wording of a particular clause or interpretation of wide umbrella clauses. The clause itself may not create problems for the State, but it supplies a channel for Investor to substantiate their occasional unfounded threats. Several treaties are at the verge of renewal or revision, whether the issue of umbrella clauses will be rectified or not, is yet to be seen. Vague wordings are core of the problem but an effective Arbitral Tribunal which can establish strong principles or rules of interpretation will automatically solve the issue.


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Overhaul of dispute resolution mechanisms

The issue relating to Arbitral dispute resolution between investor and state stems from the core of problematic predictability of vague clauses in the Investment Treaties (Brower II, 2003). The other problems lie in the sheer inconsistencies of the decisions on account of multiplicity and incoherence of arbitral institutions, leaving no scope of meaningful speculation. In the interest of balance, the author (Brower, 2009) has analyzed criticisms pertaining to the arbitral mechanisms and justified his contrary stand. Firstly, the issue of accessibility and choice of Investors to initiate Arbitral proceedings has been under scanner because it enables the investor to float unfounded threats, is not a valid criticism because this autonomy of investors actually creates balance and does not destroy balance. Without an effective arbitral procedure, there will be very less confidence in International Investors wherein chances of succumbing to political pressures are higher. Secondly, contrary to the popular beliefs, an Investor cannot raise claims against mere unfavourable business conditions or non-conducive business environment unless those can be linked to improper political action. Hence, hasty Investor led perusal of Investor led Arbitration is an improper allegation. The issue of regulatory chill also cannot be sustained since neither fair and equitable treatment nor any other provision in the investment treaties imposes any restriction on states to manage their regulatory affairs. In case of direct conflict between investor rights and public interest, the states themselves have agreed to balance issues and take an appropriate decision which in no way hampers the sovereignty of the State. Though the author has raised valid points pertaining to the abovementioned issues, the article itself acknowledges that more work is to be done on the inconsistencies of Arbitral Awards. States should consider the way in which they draft the substantive protections of new investment treaties and consider amending the existing substantive protections in the treaties to clarify the exact protections accorded to the investors. In his Substantive Protection under Investment Treaties, the author has undertaken a detailed analysis about the protectionist provisions like FET and consequences of differential treatment regarding the level of protection granted by different arbitral tribunals (Bonnitcha, 2014). Consistency is the only way forward. 8

Conclusions

Both the parties need to adjust different scales to achieve the perfect equilibrium. Sustainability should be a no-negotiation zone as most of the developed and developing States have national environmental regulations for optimal use of their natural resources. Immunity from those regulations just because capital is infused from an international channel coverts fallible logic. Investment treaties do pack commercial interests, but must act within the four corners of sovereignty, international principles, sustainability and transparency. Similarly, domestic regulation shift is an inevitable event which is supposed to be adjusted and not contested. There may be possibility of differential treatment towards Investors, hence case to case basis adjudication is an appropriate safeguard which can sufficiently be provided by Arbitral Tribunals. Host Statesâ&#x20AC;&#x2122; negative reservations about biased Arbitration is not substantiated with evidentiary value. Most of the Arbitral adjudication is not confidential which should be considered to be made a rule because of far reaching impact of the Investment on local population. There is also no reliable dispute resolution alternative provided. Greater influence of host States over Arbitral Tribunal would tip the balance negatively which will hamper growth of the Investments. A trustworthy and competent Arbitral Tribunal will automatically solve the issue of vague clauses in the Treaties. Ultimately, beginning with a


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clean slate is the most viable option. New Treaties should involve beneficial provisions and the older Treaties need to be updated and revised with a different approach which will ensure that there are no more reactions to actions. References 1. Agreement between the Government of Canada and the Government of Burkina Faso for the Promotion and Protection of Investments. Faso, Canada and Burkina. 2015. 2015. 2. Allee, Todd and Peinhardt, Clint. 2011. Contingent Credibility: The Impact of Investment Treaty Violations on Foreign Direct Invesment . 2011. 65 INT'L ORG 401 426 (2011). 3. Bank Track. 2003. Collevecchio Declaration. Bank Track. [Online] 2003. https://www.banktrack.org/download/collevecchio_declaration_with_signatories/030401_collevecchio_declaration_with_signatories.pdf. 4. Bonnitcha, Jonathan. 2014. Substantive Protection under Investment Treaties: A Legal and Economic Analysis . s.l. : Cambridge University Press , 2014. ISBN: 978-1-107-04241-4. 5. Borchard, Edwin. 1915. Diplomatic Protection of Citizens Abroad or The Law of International Claims. New York : Banks Law Publishing Co., 1915. 6. Brower II, Charles. 2003. Structure Legitimacy and and NAFTA's Investment Chapter . s.l. : Vand Journal of Transnational Law , 2003. 36 Vand J Transnatl L 37 (2003). 7. Brower, Charles and Blanchard, Sadie. 2014. What’s in a Meme? The Truth about Investor State Arbitration: Why It Need Not, and Must Not be Repossessed by the State. s.l. : Columbia Journal of Transnational Law, 2014. Vol. 52, N. 3, p. 748. 8. Brower, Charles and Schill, Stephan. 2009. Is Arbitration a Threat or a Boon to the Legitimacy of International Investment Law. s.l. : Chicago Journal of International Law, 2009. Vol 9 No 2 Article 5. 9. Canada-Senegal Foreign Investment Promotion and Protection Agreement. Senegal, Canada and. 2016. 2016. 10. Caron, David and Shirlow, Esme. 2016. Dissecting Backlash: The Unarticulated Causes of Backlash and its Unintended Consequences. s.l. : King's College London Dickson Poon School of Law, 2016. Legal Studies Research Paper Series: Paper No. 2016-37. 11. CERES. [Online] See CERES https://www.ceres.org/about-us. 12. Dhar, Mukund. 2017. Sub-Saharan African Power Projects. White & Case. [Online] September 11, 2017. [Cited: June 26, 2020.] https://www.whitecase.com/publications/insight/sub-saharan-african-power-projects. 13. environment.no. 2018. Acid Rain. s.l. : Norwegian Environment Agency, 2018. 14. Ferreira, Agata. 2017. How and why does Sustainable Development influence International Investment Law in the Current Globalization Era. Compatibility or Irreconcilability? s.l. : Universitat Ramon Llull, 2017. 15. Frank G. Dawson, Ivan Head and Ivan I. Head. 1971. International Law, National Tribunals and the Rights of Aliens. Syracuse, N.Y : Syracuse University Press, 1971. 16. From Resistance to Renewal: The Third World, Social Movements and the Expansion of International Institutions. Rajagopal, Balakrishnan. 2000. Spring 2000, s.l. : Harvard International Law Journal, 2000, Vols. Vol. 41, No. 2, p. 529. 17. Gaukrodger, David. 2017. The Balance Between Investor Protection and the Right to Regulate in Investment Treaties: A Scoping Paper. s.l. : OECD, 2017. OECD Working Papers on International Investment 2017/02. 18. Górska, Cezary Wiśniewski and Olga. 2015. A Need for Preventive Investment Protection? Kluwer Arbitration Blog. [Online] September 30, 2015. [Cited: June 21, 2020.]


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39. Patomäki, Heikki and Patomäki, Elsa and Teivainen, Teivo. 2004. A Possible World: Democratic Transformation of Global Institutions. London : Zed Books Ltd., 2004. ISBN: 1 84277 406 9. 40. Permanent Sovereignty Over Natural Resources. United Nations. 1962. s.l. : United Nations, 1962. General Assembly resolution 1803 (XVII). 41. Principles of Responsible Investment. 2020. What is the PRI? United Nations Principles of Responsible Investment. [Online] 2020. https://www.unpri.org/pri/about-the-pri. 42. May, 2018. Recent Developments in the International Investment Regime. s.l. : UNCTAD, May, 2018. 43. June, 2013. Reform of the Investor-State Dispute Settlement: In search of a Roadmap. s.l. : UNCTAD, June, 2013. 44. Secretary-General of the OECD. 2016. The Impact of Investment Treaties on Companies, Shareholders and Creditors. s.l. : OECD, 2016. OECD Business and Finance Outlook 2016, Chapter 8. 45. 2003. SGS Société Générale de Surveillance S.A v. Islamic Republic of Pakistan. ICSID Case No. ARB/01/13, International Investment Law and Sustainable Development: Key cases from 2000– 2010 : ICSID, 2003. 46. 2004. SGS Société Générale de Surveillance S.A v. Republic of the Philippines. Case No ARB/02/6, Washington D.C : ICSID, 2004. 47. Stiglitz, Joseph. 2015. The Secret Corporate Takeover. Project Syndicate. [Online] May 13, 2015. https://www.project-syndicate.org/commentary/us-secret-corporate-takeover-by-joseph-e--stiglitz-2015-05?barrier=accesspaylog. 48. The Umbrella Clause in Investment Arbitration – A Comment on Original Intentions and Recent Cases. Wälde, Thomas. 2005. April 2005, Geneva : Journal of World Investment and Trade, 2005, Vol. Vol. 6 No. 2. 49. The World Bank. Guarantees Program. The World Bank. [Online] [Cited: June 26, 2020.] https://www.worldbank.org/en/programs/guarantees-program#1. 50. Transforming our world: the 2030 Agenda for Sustainable Development. United Nations General Assembly. 2015. s.l. : United Nations, 2015. A/RES/70/1. 51. Treaty for Promotion and Protection of Investments. Pakistan, Federal Republic of Germany and. 1959. 1959. (1963) 457 UNTS 23. 52. UNCTAD. 2018. World Investment Report 2018: Investment and New Industrial Policies. Geneva : United Nations Publications, 2018. ISBN 978-92-1-112926-7. 53. —. 2020. World Investment Report 2020, International Production Beyond the Pandemic. Geneva : UNCTAD, 2020. ISBN 978-92-1-112985-4. 54. United Nations . 1961. Resolution 1707 (XVI) International Trade as the Primary Instrument for Economic Development. United Nations . [Online] 1961. [Cited: June 18, 2020.] https://undocs.org/en/A/RES/1707(XVI). 55. United Nations Global Compact. 2020. Uniting Business in the Decade of Action, Building on 20 Years of Progress. s.l. : United Nations Global Compact, 2020. 56. United Nations. 2019. Only 11 Years Left to Prevent Irreversible Damage from Climate Change, Speakers Warn during General Assembly High-Level Meeting. United Nations. [Online] March 28, 2019. [Cited: June 2020, 26.] un.org/press/en/2019/ga12131.doc.htm. 57. Vienna Convention on the Law of Treaties, Article 27 . 1969. s.l. : United Nations Treaty Series, 1969. 1155 U.N.T.S. 331. 58. WHO FCTC Secretariat Knowledge Hub. 2019. Why is International Investment Law Relevant to WHO FCTC Implementation. WHO Framework Convention on Tobacco Control . [Online] 2019. [Cited: June 19, 2020.] https://untobaccocontrol.org/kh/legal-challenges/investment/international-investment-law-relevant-fctc-implementation/. 59. Williams, Lee. 2015. What is TTIP? And Six Reasons Why the Answer Should Scare You. INDEPENDENT. [Online] October 6, 2015. https://www.independent.co.uk/voices/comment/what-is-ttip-and-six-reasons-why-the-answer-should-scare-you-9779688.html.


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60. 2016. World Investment Report 2016 Investor Nationalisty: Policy Challenges. s.l. : UNCTAD, 2016. Chapter 3: Recent Policy Developments and Key Issues. 61. WTO. General Agreement on Trade and Services. World Trade Organization. [Online] https://www.wto.org/english/docs_e/legal_e/26-gats_01_e.htm. 62. Yannaca-Small, Katia. 2008. Interpretation of the Umbrella Clause in Investment Agreements. s.l. : OECD International Investment Law: Understanding Concepts and Tracking Innovations, 2008. ISBN 978-92-64-04202-5.


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An Examination into Managing the Plight of Migrant Workers in India during the COVID-19 Quarantine and Beyond Arpan Chakravarthy1 and Anubhav Bannerjee2 1Student, 1Student,

Christ (Deemed to be University), Bangalore Christ (Deemed to be University), Bangalore

arpan.chakravarty@law.christuniversity.in;

1

Introduction

The world remains gripped in uncertainty due to the Covid-19 Pandemic, and India is no different, having spent multiple weeks on a Nationwide Quarantine, bringing its economy to a screeching halt. This has affected a multiplicity of parties, none more severely than the lower-income households and migrant labourers (Miglani, 2020), who remain unsure about the status of their employment, the source of income necessary to provide for their households or even the safety of their own residence. A natural step in the Nationwide Quarantine announcement was the closure of public transport facilities and State governments sealing their borders, causing droves of migrants to resort to walking back to their native homes (Ellis-Petersen, et al., 2020). South Asia as a region suffers more acutely from this problem due to the high degree of internal migration for employment (International Organization for Migration, 2020), causing countries like India to suffer a humanitarian crisis amidst this pandemic. Such a step by the Government of India has led many to question the presumptive biases in the governmentâ&#x20AC;&#x2122;s policymaking, as quarantines necessitate a degree of personal wealth and capacity of each individual to remain indoors and requiring only replenishment of resources periodically. The authors echo such sentiments, for in a country like India, which still witnesses to poverty and degrees of income inequality, on top of having a massive population; policy measures should ideally include the poor and downtrodden as important stakeholders, and not just for distribution of resources, but also migration and healthcare, without which there would arise problems quite like those currently suffered by migrant workers and their families. Constitutionally, the Central Government has the capacity to deal with this pandemic (Constitution of India, 1950) both through cooperation with State governments through their own respective policies (Constitution of India, 1950) and through their own mandate. Such is complimented through statues such as the Disaster Management Act (2005), thus vesting a far greater potential in the Government to mitigate the harms being suffered. This has already begun, with food and shelter being provided in the spirit of Article 257 of the Constitution to various groups of impoverished persons (Kaushik, 2020), but a lot more is warranted to ensure that the pandemic is tackled, and also to build up the capacity of the people to deal with such crises in the future. As a precursor to the problems faced by migrant workers, it is pertinent to note how migrant workers exist in a legal vacuum concerning their status. They are the subjects of the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act,


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1979; which seeks to establish Registering Offices, deeming provisions and regulations to ensure that any employers seeking to hire such persons undergo certain additional regulations and steps. However, the statute does little to confer specific benefits, or record and transmit information about such persons; which leaves them critically vulnerable to governmental oversights or needless antagonism from State machinery, especially about the politics surrounding interstate migration. It is crucial to note that if there were more comprehensive laws surrounding the processes of interstate migration, the numerous mishaps which adversely affected such persons may have been avoided, so if anything, there needs to be a serious examination of the disparate legal situation that migrant workers exist in so that subsequent ÂŹex-post affirmative actionâ&#x20AC;&#x2122;s reach their desired targets. Therefore, the authors would invoke a spirit of solidarity, commending the efforts of both Central and State Governments, such as the strides made in Kerala and Rajasthan to offset infection rates and contain the spread of the coronavirus; but would like to continue the discourse on both long and short term policies which can be implemented to deal with different dimensions of these problems, and ameliorate the conditions of the migrant workers and impoverished communities. Five such problems shall be explored subsequently. 2

Capital Building

The most obvious concern faced by migrant workers and their families is a lack of monetary capital, either through savings or investment, which prevents them from either having a repository of funds to deal with unexpected healthcare expenses or to be able to sustain themselves during this period of zero income due to the Quarantine. Vide an order under Section 60 of Building and Other Construction Workers Welfare Cess Act, 1996, there has been an attempt to provide monetary benefits and a social security cover (Ohri, et al., 2020) through the DBT (Direct Benefit Transfer) method directly to the bank accounts owned by migrant workers. Such a move aligns existing Central Government schemes such as the Pradhan Mantri Jan Dhan Yojana (PMJDY), and with the assistance of State governments, workers under policies such as the Mahatma Gandhi National Rural Employment Guarantee Act (2005) are able to accrue some monetary benefits. However, it is unsure about both the short term and long-term viability of this policy due to the existing shortages in the supply of food and medical supplies, coupled with the inevitable rise in inflation that such measure by the government shall achieve the main intent of the government, which was to provide â&#x20AC;&#x201C; social security to the poor. Capital may only really be used when such persons are able to have access to affordable goods and services they need to survive, which is why the amounts being disbursed may not be enough to sustain them or their families by itself. Only those employed under certain schemes, or those who are eligible for such accounts and benefits are those who may even gain access to such affirmative actions, and thus the desired increase in capital of these individuals may only really come through a measurable rise in purchasing power. Such may happen through the involvement of Residential Welfare organizations, for example, who may be able to ascertain the quantum of resources required by each household within certain areas so that they may be directed to access supply networks of resources. This may be a way to involve various communities in helping provide for the migrants living in slums near their colonies, both to improve their conditions and to reduce the problems of infectivity due to poor health conditions and a lack of resources. Domestic Medical Supply and Markets


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As a continuation of the prior corrective step, migrant workers also suffer disproportionately due to the inability of the Governmentâ&#x20AC;&#x2122;s medical personnel in providing affordable care and treatment. Such stems from both financial constraints and a shortage of supplies of surgical masks (such as the N95 Mask), Protective Personal Equipment and disinfectants for the general public and the doctors on the frontline. In such times, it is appalling to note the continued export of most of these products, with Governmental orders as late as 8 February 2020 permitting the export of such vital products to foreign markets (Directorate General of Foreign Trade, 2020). As a neighbouring state to China, the epicentre of the COVID-19 outbreak from as early as December 2019, a degree of preparedness or pre-emptive organization would have been instrumental in mitigating the virility of the disease in India; and given how protective equipment and hand sanitizer eventually became crucial commodities [and were specifically targeted by ordinances and notices to accelerate their production by March 2020 (World Health Organization, 2020)], it is surprising how the government even permitted exports in the absence of a domestic surplus. The capitulation to export Hydroxychloroquine (Dasgupta, et al., 2020) is another example of the Government relinquishing their ability to control the supply of medical equipment or medicines which mitigate the symptoms of the disease (Goodman, et al., 2020) if not outright assist in the development of a cure. A power to regulate the same is vested under Section 3 of the Essential Commodities Act 1955. The government still has the power to ensure that these commodities are sold and made available at lower prices, and while such a mandate is not to the same extent as the U.S. Defence Production Act 1850, there can still be a major impetus from the State towards lowering the costs and ensuring a greater supply of these commodities. So far, the extent of such power has only been used to ensure there is enough product to sell such commodities at maximum retail price (Press Information Bureau of India, 2020), and the authors urge the temporary provision of subsidy, or temporary suspension of the Patent holderâ&#x20AC;&#x2122;s rights over such medicines so as to ensure their mass production is viable, with subsequent deferred payments to offset the immediate shortfall in supply. 3

Obsolescence and Absence of Reliable Data for Policymaking

There is a severe deficit of information on many aspects of both public health and employment, as the records of migrant workers and their places of origin exist only till 2008-2009. Without a repository of information regarding the same, and the lack of obligations on Employers to maintain this form of information, the avenue to compel employers to assist the state in ensuring the safety of migrant workers is greatly impaired. The lack of reasonably correct estimations of the numbers of migrant workers in each workplace makes strategies like employer-provided residencies (for which the employers get tax benefits, such as in the US) are lost, which causes the growth of slums and illegal constructions. This increases the risks of such workers living in unsanitary conditions (and thus being more susceptible to being carriers of such pathogens); and making it difficult to trace individuals entering and leaving these encroachments, which increases the costs incurred in containment and security measures. Such also increases the likelihood of migrant workers being stranded, having left their temporary hovels and being unable to travel home. This is a long-term problem (Borhade, 2011) requiring an extensive collection and preservation of such vital demographic information, which can further be used to formulate more critical healthcare policies. For the time being, there is a degree of control over the urban migrants, who have been contained within their respective states for the period of National Quarantine. Temporary accommodations are being setup reminiscent of leper camps to


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ensure some degree of governmental relief reaches such persons. For example, the Unorganized Workers Social Security Act 2008, vide Section 3, can allow for specific welfare programs to reach even those migrants who cannot currently claim benefits through their Unions or by government relief agencies. Along with municipal workers and essential service providers, the government may collect information from those slums and health camps where workers have already congregated, and dismantle them systematically after ensuring the residents have met the safety standards for the disease. State governments can provide transport to these camps to directly take these migrants on planned routes back to their native states, to disperse such people in an orderly manner in anticipation of upcoming Anti-COVID 19 measures. 4

An Absence of a National Contingency Plan

Migrant workers, in addition to being their own category of legal persons distinct from employees in most industries, also are affected worse through an absence of a centralized governmental schematic which comprehensively deals with emergencies. Such is not simply limited to the aforementioned shortage of capital, supply and targeted data, but also in the general lack of preparedness which stems from a weakness in the legal infrastructure to combat such scenarios, with the Disaster Management Act (2005) and Epidemic Act (1897) distributing powers unevenly between legislative and bureaucratic agencies without giving a concrete protocol to deal with pandemic or epidemic related disasters. The Home Secretary may enact orders under the instructions of the Prime Minister, and the Epidemic Act allows for the regulation of vessels by the Central Government, but the absence of a National Plan from the National Disaster Management Authority makes all Legislative actions reactionary to the outbreak of such diseases. State governments, while enjoying Constitutional powers under Schedule 7 to exclusively deal with public health, perform with unequal standards based upon their regional demography and economy, which is extremely perilous for contagious diseases due to the need for uniform safety measures and a standardized policy to ensure compliance to such measures take place. This issue manifested clearly in the period before the National quarantine from 23 March, where State governments would unilaterally take precautionary measures (or abstain from the same) which left many migrants in a lurch regarding their ability to reside in their place of employment or returning to their homes. In these situations where a broad contingency plan does not exist, and reactionary fixes from the Centre becomes the norm, the actions by local self-governments become the baseline for successful micro-level strategies. For example, the city of Bhilwara tested for COVID on more than 2.2 million families from the villages and 1 million households, sealing the city and district boundaries. With a defined quarantine process, identification of hotspots and junctions for the potential spread of the virus, and early containment and ameliorative measures, the remarkable outcomes achieved by the city (Sharma, 2020) can form the basis for strategic planning. Such models emerge out of necessity and the dearth of a broader safety-net, and while such examples ought to receive greater accreditation and emulation in macro-level plans, it also highlights the potentially better outcomes possible if more pro-active legal policies and strategies can exist, with the adequate planning, infrastructure and training. As it is unlikely that Parliament will convene before the resumption of normalcy, the immediate actions by the Ministry of Home Affairs are the extent to which there can be a National policy against the spread of COVID-19. But a long-term overhaul of these


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legislations is necessary, including the redaction of the National Disaster Management Authority due to its insufficient mandate, along with reference to success stories from local self-governments, such as the Surat Plague (Swamy, et al.), which serves as a touchstone for capacity building, with its Municipal Commissioners during that period implementing cleanliness projects, waste collection and removal policies, as well as using surveillance technology to ensure infected households were contained and received medical assistance. These need to be coupled with a corresponding increase in Insurance coverage schemes, better investment in public health and infrastructure and enactment of novel policy reforms similar to the National Health Policy Bill 2017, to serve as both aspirational and achievable models, which would restore a sense of procedural certainty during times of crisis; an invaluable action for all citizens, especially those who have to sustain their families and themselves across state boundaries. 5

A Deficit of Practicable Information

A final ex-ante mishap that the authors would draw attention to is the methodology of dissemination of information down to individuals who may lack the ability to reliably access or understand the same. There is a major reliance upon the televised or radio broadcasts from the Central Government or News Media by people for information and instructions regarding public healthcare, which is problematic for both migrant workers and State officials. Post the Janata Curfew declared on 22 March, and before the nationwide quarantine, with Public transport being suspended irregularly between states, 75 districts across the country locking down haphazardly (Sharma, 2020), and the lack of any real standing instructions to civil servants led to hundreds of migrant workers being stranded (Ulmer, et al., 2020), having left for their native home towns without clear information regarding the same. Such was compounded by reports of inhuman treatment (Biswas, 2020), likely fueled by misinformation and confusion amongst healthcare personnel and police about the standards of safety and precaution necessary. Such would usually be rectified through training and contingency plans being made by the Government, but for the immediate period, there needs to be a more comprehensive public health and safety awareness program, which is initiated, which combines the existing efforts by the government to bolster the resolve of citizens with concrete information on safer habits, disease combative measures, and places where resources and medical supplies can be accessed. Such may be complemented through government helplines, the All India Radio and government-run channels to ensure medically sound and logistically relevant information can trickle down to the most vulnerable sections of the society. 6

Conclusions

There are certain latent concessions and presumptions that the authors have operated under in course of writing this article. There are very little verifiable sources of the feasibility of such programs in rural settings due to the incomplete or obsolete data with regard to the levels of infrastructure, access to resources and sanitation for rural settings. Additionally, such plans may fall victim to the Trickle-Down problems, wherein there is little certainty that such benefits may actually accrue to the most vulnerable sections of the society.


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However, the authors have attempted to integrate the involvement of all three strata of Governments so as to ensure that there is an attempt to achieve simultaneous macro and micro-level reforms. Furthermore, the bulk of the proposals aim to increase the supply of capital, food and healthcare resources, accurate information for targeted policies and reforms, as well as comprehensive policymaking; all of which are desirable across the spectrum of families in India, and thus not a zero-sum game between groups of individuals. The benefits of better healthcare laws, more humanitarian treatment and accommodation of migrant labourers, and more receptive and capable public institutions are all beneficial for the society as a whole, and crucial for building public trust, which is vital for dealing with pandemics (Moglie, et al., 2020). References 1. Biswas, Soutik Coronavirus: Anger as migrants sprayed with disinfectant in India. bbc.com/news [Online]. British Broadcasting Company, March 31, 2020. [Viewed date: April 3, 2020.] Available from <https://www.bbc.com/news/world-asia-india-52093220 >. 2. Borhade, Anjali. 2011 Health Of Internal Labour Migrants in India: Some Reflections on the Current Situation and Way Forward Asia Europe Journal [Online] Gurgaon: Springer-Verlag, 2011, 8(4), 567-460, ISSN-1612-1031 [Viewed date: April 3, 2020.] Available from <https://link.springer.com/article/10.1007/s10308-011-0293-z>. 3. Constitution of India Schedule 7, List III, Entry 26, 29 1950. 4. â&#x20AC;&#x201D;. 1950. Schedule 7, List II, Entry 6. 1950. 5. Dasgupta, Neha and Miglani, Sanjeev India Allows Limited Exports of Anti-Malaria Drug after Trump Warns of Retaliation. Reuters.com. [Online] Reuters, April 7, 2020. [Viewed Date: April 9, 2020.] Available from: <https://www.reuters.com/article/us-health-coronavirus-indiadrugs/india-allows-limited-exports-of-anti-malaria-drug-after-trump-warns-of-retaliationidUSKBN21O34B>. 6. Directorate General of Foreign Trade Ministry of Commerce and Industry, Government of India Notification No. 47/2015-2020. dgft.gov.in [Online] New Delhi: 8 February 2020 [Viewed date 1 April 2020] Available from <https://dgft.gov.in/sites/default/files/Noti%2047_0.pdf>. 7. Ellis-Petersen, Hannah and Chaurasia, Manoj India racked by greatest exodus since partition due to coronavirus. TheGuardian.com/world. [Online] March 30, 2020. [Viewed date: April 19, 2020.] Available from: <https://www.theguardian.com/world/2020/mar/30/india-wracked-bygreatest-exodus-since-partition-due-to-coronavirus>. 8. Goodman, Jack and Giles, Christopher Coronavirus and chloroquine: Is there evidence it works? bbc.com/news. [Online] British Broadcasting Company, April 9, 2020. [Viewed date: April 9, 2020.] Available from <https://www.bbc.com/news/51980731>. 9. Gordenker, Leon Refugees in International Politics. [Online] 1st Edition Ann Arbor: Beckenham : Croom Helm, 1987, Digitized 2009, ISBN- 9780709938484. [Viewed date: 04 March 2020.] 10. International Organization for Migration World Migration Report. [Online] Geneva : 2020, eISBN-978-92-9068-789-4 [Viewed date: 9 April 2020] Availible from: <https://publications.iom.int/-system/files/pdf/wmr_2020.pdf> 11. Kaushik, Krishan During Lockdown: Haryana, Delhi gave most meals, Kerala sheltered 3 lakh Indianexpress.com [Online] Indian Express, April 9, 2020. [Viewed date: April 29, 2020.] Available from <https://indianexpress.com/article/india/during-lockdown-haryana-delhi-gave-mostmeals-kerala-sheltered-3-lakh-says-govt-6353901/>. 12. Miglani, Sanjeev Indian leaders hesitate to end world's biggest lockdown Reuters.com. [Online] Reuters, April 7, 2020. [Viewed date: April 9, 2020.] Available from:


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<https://www.reuters.com/article/us-health-coronavirus-southasia/indian-leaders-hesitateto-end-worlds-biggest-lockdown-idUSKBN21P13O>. Moglie, Marco Le, et al. 2020 Epidemics and Trust: The Case of the Spanish Flu [Online] IGIER Working Paper No. 661. s.l. : Innocenzo Gasparini Institute for Economic Research, 2020, Working Paper Series, 2020. [Viewed date: 07 April 2020] Available from: < http://www.igier.unibocconi.it/files/661.pdf>. Ohri, Nikunj and Nahata, Pallavi Government Advises States To Release Rs 52,000 Crore For Construction Workers https://www.bloombergquint.com/ [Online] BloombergQuint, March 24, 2020. [Viewed date: April 18, 2020.] Available from: <https://www.bloombergquint.com/business/government-advises-states-to-release-rs-52000crore-for-construction-workers>. Press Information Bureau of India, Ministery of Consumer Affairs, Government of India, Essential Commodities Order 2020 S.O. 1087(E) [Online] 2020 [Viewed date: 12 April] Available from: <https://consumeraffairs.nic.in/sites/default/files/file-uploads/essential-commoditiesorder/1087.pdf >. Sharma, Aman. 2020 After Janata Curfew, India gets ready for long haul economictimes.com. [Online] Economic Times, March 23, 2020. [Viewed date: April 3, 2020.] Available from: <https://economictimes.indiatimes.com/news/politics-and-nation/after-janata-curfew-indiagets-ready-for-long-haul/articleshow/74765039.cms?from=mdr>. Sharma, Neetu Chandra Coronavirus: Want to contain the virus spread? Do it the Bhilwara way. Livemint.com. [Online] Livemint, April 8, 2020. [Viewed date: April 9, 2020.] Available from: <https://www.livemint.com/news/india/covid-19-how-did-bhilwara-emerge-as-an-idealmodel-for-containment-11586227844819.html>. Swamy, H.M. Shivanand, Vyas, Anjana and Narang, Shipra Transformation of Surat : From Plague to Second Cleanest City in India. [Online] s.l., All India Institute Of Local Self Government. [Viewed date: 11 April 2020] Available from: <https://www.indiawaterportal.org/sites/indiawaterportal.org/files/UI_1-Surat.pdf>. Ulmer, Alexandra and Jamkhandikar, Shilpa India's stranded migrant workers struggle under virus lockdown news.trust.org. [Online] Thompson Reuters, April 2, 2020. [Viewed date: April 6, 2020.] Available from: <https://news.trust.org/item/20200402090405-a5o3p>. World Health Organization Novel Coronavirus â&#x20AC;&#x201C; China who.int. [Online] World Health Organization, January 12, 2020. [Viewed date: April 19, 2020.] Available from: <https://www.who.int/csr/don/12-january-2020-novel-coronavirus-china/en/>.


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The Nascency of Good Governance: Community Policing in the Contemporary India Pranay Bhattacharya1 and Akshat Mall2 1Student, 2Student,

1

Maharashtra National Law University, Aurangabad Maharashtra National Law University, Aurangabad 17ballb46@mnlua.ac.in

Introduction and Meaning

Community Policing is interchanging the word play of a police in regards with the citizens and vice-a-versa. It is going nearer to the general population for including them in guaranteeing their own security (Community Policing, 1992). It is a method which can be characterized as a proactive policing approach where police and individuals of a community cooperate to guarantee well-being, peace, and security of the local natives. It is the reorientation of policing theory and procedure far from the view that police alone can diminish misdemeanor, issues and dread. Therefore; community policing suggests an essential change in the origination on the part of the police in the public arena. It alludes those courses of action of policing which helps in understanding a critical part of the community in characterizing and controlling policing in their locality. According to the Bureau of Police Research and Development, the purpose of Community Policing is "to envision and perceive bad behavior, keep up orchestrate and ensure prosperity and security of the system in association with the all-inclusive community, and to give the system capable, clear and responsive law-prerequisite equipment which engenders the upkeep of current law". They referred it as "ordinary policing of general public in discussion, collaboration and organization to maintain a consonance with laws" (Bureau of Police Research and Development, Ministry of Home Affairs, Government of India , 2010). In all, community policing is as much about police becoming more acquainted with the community as it is about the community becoming acquainted with the police. Community policing is an intense method for expanding social comprehension amongst police as a community, particularly different in a diverse society like India with expounding laws. 2

History of Community Policing

John Angell (1971) authored the expression "democratic policing" to portray community policing. Community policing basically is another rationality of policing in which the police offices and the nationals cooperate in inventive approaches to address the contemporary network issues (Angell, 2001). A Police-Community Relations program was for all intents and purposes was obscure before the 1960s. In the greater part of cases, it was presumably well-known weight, as opposed to regulatory creative energy, that brought the thought into being. This boost came basically from expanding confident ethnic minorities. The idea of community policing assembled force in numerous nations of the world in 1980s. In perceiving the extending hole


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between the regular people and police authorities, the nations like Canada, England, Japan, and Singapore and many others were investigating the contrasting options to their expert bureaucratic model of policing.4 The nations in the west, similar to the U.K. have a long custom of neighborhood administration in police and different circles of life.. Indeed, even in other representing bodies, the customs and exercises of the vast majority of these spans back to the beginning of the English history (Denney, et al., 2013). 2.1

Indian Viewpoint

But there are sure contrasts in the Indian social and political condition, and that of the western countries, where the community policing is rehearsed effectively, what's more, these distinctions must be remembered to change the execution systems for India. To a few, police-community relations just means public relations, that is, exercises coordinated at making and keeping up good impressions of an institution, a firm, or an organization. In India, community policing was predominant from antiquated era. Indeed, the key component of old police framework was its locale introduction. The references to police association and particular forces of law requirement with preventive, investigative and arraigning obligations can be followed back to Maurya period as well as the Vedic period where the tribes used to secure their own cattle and farms. Amid medieval India likewise, Sarpanch used to fill in as a cop and used to keep up lawfulness with the assistance of town network. To facilitate upper levels, the Muhasil, Fauzdar, Khwaza and Munsiffs used to help the community policing. Amid later time of Mughal period, the policing wound up as an optional approach. The essential worry of the administrative bodies was battle and gathering of income. The territories were put under inherited Subedars, to maintain criminal equity, law and order. A Fauzdar was made in charge of law, order and concealment of wrongdoing. Amid British period, the lawfulness got under the control of Zamindars according to changes made by Cornwallis. Uniform police compulsion was built up with local judges in each region. Be that as it may, community policing had lost itâ&#x20AC;&#x2122;s whatever pertinence during that time (Basham, 1994). In autonomous India, peace was made a state subject and a few states attempted to execute the community policing. For a Police Department, this would mean great support of the network. Community Policing Resource became a pioneer venture of Punjab police that was given a boost in 2003 with the establishment of Community Policing Resource Centers (Kumar, 2011). To start with a four-level body headed by the state directing advisory groups that gives strategy rules, bolster for limit constructing and fortifies arrangement of administration, participation and integrative system. It moreover streamlines the preparation of faculty at the regional levels directing the sub-divisional and local thana/police outreach. These focuses can work as a single point contact/clearing house at the local level. For instance, West Bengal had a program called the Village Resistance Group to manage dacoits in provincial territories. In Gujarat and Maharashtra, community group policing program called Gram Rakshak Dal was built up. Also, in Karnataka authorization of the Karnataka Village Defense Parties Act of 1964, which wound up operation in 1975 intended to set up community policing. Mohalla Committee Movement trust is another example which was set up in Mumbai in the wake of Hindu-Muslim uproars of 1992 and 1993. Mohallas or beat watch met consistently to address assortment of issues concerning the


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community, for example, concerns identifying with well-being, training, natural issues, issues identified with public congruity and so forth (Nalla, et al., 2013). • Participation of General Public - It includes a dynamic organization amongst police and the community in recognizing the fundamental standards which would offer ascent to crime and in distinguishing the arrangements in avoiding and controlling those crimes and thus creating an amicable relationship between the two. • Accentuating specific purpose - The core of this issue is to foreshadow particular reason to outline the problematic issues and resolve the same. • Suggestions put forward by the community – For the welfare of community a police officer is not expected to choose the issue unilaterally without any consultation. He must act in concord for the welfare of the community. • Division of Power - Dividing the basic leadership as community policing engages field level officer to recognize the issue with the assistance of neighborhood subjects, devise and execute a procedure to settle the same. Thus, by making an instant decision which prompts speed and effectiveness. 2.2

Critique of Some Laws Related to Community Policing

There are no laws and statutes made particularly for Community Policing under the Criminal Procedure Code (Cr.P.C) of India. But its substance can be seen under this Code. Section 37 which forces a obligation on individuals from general society, who are required to help a Magistrate or police in the preventing escape of an offender, in the counteractive action or rupturing the peace of the community, or in the aversion of damage of public property. Punishment for oversight to do as such is given under section 187 of the Indian Penal Code. Section 39 also gives an obligation on each individual to give data of specific offenses determined in its clauses and sub-clauses. Additionally, Section 40 of Cr.P.C, stands as an obligation on town officers and individual inhabitants in towns to promptly give data about specific offenses to the closest magistrate or police officer. In India, law authorization is a state subject, in this manner, there is no specific order of encompassing any law from the Central Government level, however numerous initiatives are taken up by the nearby police headquarters, police stations and local thanas under the provisions streamed down by the state laws. A few states, for example, Uttarakhand, Karnataka, Kolkata, Punjab, and Andhra Pradesh have characterized 'community policing' on their sites and issued general rules for people. 2.3

Objectives of Community Policing

• Building associations by the community as a form of organisation for the totalitarian welfare of the society. • To take care of local neighborhood issues by anticipating and recognizing violations, reestablishing peace and cutting down the wrongdoings against children, women, senior citizens and weaker sections of the public. • It needs to guarantee appropriate coordination among different offices and organizations to guarantee well-being and security of the community.


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â&#x20AC;˘ To utilize it as a broadened public relation apparatus by providing updates, news, perspectives and authority proclamations by means of tweets and other web-based social networking sites. With this movement, the police will have the ability to attract, fortify, inspect and translate community needs in an enormously enhanced way and pass on tasteful advantages to decide these things properly. With this, the police would in like manner can know the demands of the overall public and acknowledge what is disquieting them. This can in like manner go about as early forewarning system for the police who might then have the capacity to think about reasonable restorative measures. 2.4

Initiatives Taken by Indian States

Tripura: Prayaas Initiative Community policing began its voyage in Tripura in January, 2011 with the usage of 'Prayaas' program. The central purpose of the plan was on avoiding wrongdoing specifically against women, street misdemeanor and leftover insurrection in the state. The initiative was at first presented in all police stations situated in capital, district-headquarters and subdivisional headquarters of the state. For usage of the program, Beat Committees, including agents of all the areas of the neighborhood community, have been constituted under enrolled police stations under the administration of cops of the concerned police headquarters. (Tripura Police, 2011) Coimbatore: Samarth Yojna Community Policing Experiment The city has seen two common uproars, viciousness, and barbaric fierceness. There has likewise been an expanding level of criminal misconducts. It was a result of these shocking circumstances that, Mr.K.Radhakrishnan, IPS, chose to execute a community policing test to bring the circumstance under control. The primary targets of this analysis were to see and resolve the mutual issue and furthermore to win the certainty and trust of the general population. (Nalla, et al., 2013) Punjab: Community Policing Resource Centers Community Policing Resource Centers (CPRCs) have been set up in Punjab from 2003 onwards, which are independent and enrolled for maintaining "social orders" mutually by overseeing delegates of the network and police authorities. These units incorporate: one for casualties of wrongdoing, one for non-inhabitant Indians, and a unit set up particularly to serve ladies. The activities and tests led by different state policies were very compelling and effective (Kumar, 2011). Assam: Prahari Community Service . The PRAHARI community policing service was started for changing the demeanor of the normal policeman at the police headquarters towards the general population, to influence them to and to enhance their living and working conditions for the well-being of the society.


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Tamil Nadu: Friends of Police The Friends of Police is a comprehensive and ace dynamic idea that loans way to deal with policing. It is a genuine case of police open organization where residents have been engaged alongside the police. Friends of Police gives chances to standard residents to viably add to the aversion and identification of wrongdoing. Any individual from people in general, male or female who isn't associated with common or criminal case can turn up as a member of this association (Friends of Police). Mumbai: Public Concern for Governance Trust One of the community policing activity taken up by the Mumbai Police is the Public Concern for Governance Trust which has been set up in different parts of the city. This is an investigation which assembles general assessment and builds open interest and activism towards making more straightforward and productive administration. The proposed task includes, building skills, qualities and morals among Police Force and Civil Society; to distinguish open concerns and their prioritization through example reviews, look into, centered gathering exchanges with people and different gatherings including NGOs; to recognize the particular issues making grievances free society and law organizations through encounters of open police authorities; starting discourse between the police and public and along these lines create and recommend measures for the recognized concerns; directing attitudinal change addresses, workshops and classes among the police and civil society and taking police to instructive establishments to train about urban qualities and ultimately by expanded collaboration of the police faculty with other expert gatherings on particular issues of morals in administration (Public Concern for Governance Trust). Delhi: Senior Citizens Wellbeing Programme In continuation of its overdrive to guarantee the well-being of senior citizens, the Delhi Police sorted out well-being camps in relationship with a private doctor's facility offering free check-ups to the elderly in South and South West Delhi during July, 2004. Senior Citizens turned out what's more, imparted their issues to police and Resident Welfare Associations. Senior Natives utilized this chance to acquaint with their neighbours. The Delhi Police additionally distributed in the daily papers with precautionary measures to be taken by the Senior Nationals to guarantee their security. (Department of Social Welfare (Planning Branch), Government of NCT of Delhi, 2011) Bangalore: Slum Domination In Bangalore the police from a few divisions have presented a new framework called "SLUM DOMINATION". This is an exceptionally one of a kind and most recent advance embraced by the police to diminish wrongdoing rate by going to the slum regions consistently and keeping up the social responsibility in those regions, police likewise meet those localities who had criminal charges and first time guilty parties and keep view of all their day to day activities, if nothing incorrect or suspicious is discovered at that point, police give them affirmation of expelling them from the unruly charge sheets and reduce charges framed on them. This is additionally a piece of community policing where police is stepping up in regards to control wrongdoing and other unlawful exercises against the general public (Shadow policing: the boundaries of community-based â&#x20AC;&#x2DC;policingâ&#x20AC;&#x2122; in Northern Ireland, 2014). The techniques for enlistment and preparation of police force in India are not logical. Right now, mental tests are not led on the applicants to analyse whether they have basic characteristics to serve in police. The procedure of enlistment of the police force is, to an expansive


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degree, politicized and justified as typical and disregarded at the sacrificial table of 'recommendationsâ&#x20AC;?. There are portions of boundaries to community policing that should be tended to any police training. The conviction inside and outside association that request in the public is kept up because of police fear. This dread is a noteworthy hindrance in conveying individuals closer to the police. This closeness is essential for any community policing activity. Poor police conduct prompting poor picture and, the hierarchical culture of disregarding individuals go hand-in-hand. The authoritative culture of mystery and secrecy is another boundary. Such a culture clearly can't perceive any part for the general population. Without a doubt police can't reveal all the data to the general population. Be that as it may, it is similarly evident that all the data isn't classified. Additionally, amid preparing, slightest exertion is attempted to advance administrative introduction and helpful mentality among the community. Police is additionally not prepared in swarm control and administration. Also, the police preparing methods are till date without modem offices. Police preparing foundations in the states, (are) generally headed by disappointed and de-motivated officers who just await their opportunity to oversee posting. Not just the conventional strategies yet in addition the course substance of preparing needs quick modification keeping in mind the end goal to hone the mentality of the community. The administrative position of the police force, particularly those in the constabulary position are generally poor and unsuitable. The normal working long stretches of a police/cop are much more than those of the other government hirelings. "A policeman has a 24-hour workday and he needs to regularly take time to visit his family. This has influenced his/her work profile and proficiency." Moreover, they have set number of occasions and they are only here and there allowed to profit them according to their family necessities. The living conditions of the police faculty in sleeping quarters are a long way from agreeable. The greater part of the police headquarters are normally housed in old and tumbling down structures." The essential pleasantries like drinking water, lights and fans, toilets, and so on are exceptionally lacking in these obsolete police headquarters, in addition, the insufficient compensation of the constabulary and the fast increment in expansion rate has additionally made their position more reprehensible. The lesser odds of advancement and exhaust in the division because of deficiency of staff likewise add to their dissatisfaction and outrage. There would be no embellishment to feature that the earth in which the police is working isn't harmonious. In nutshell, "the constabulary, which constitute 80 percent of the nation's aggregate police constrain, is not well prepared, inadequately paid and has no extension for advancements". It antagonistically influences their conduct, which boomerangs in their dealings with the ordinary citizens and consequently, at last defaces their general execution. The senior-subordinate relations in the police depend on impulse and are orthodoxically monarchical as opposed to equitable and participative. There are wide holes between the seniors and subordinates at various progressive levels to the degree that the subordinates feel choked amid their communication with their seniors. Truth be told, for the sake of it, they are not allowed to ventilate their grievances. The subordinates are only here and there urged to express their perspectives uninhibitedly. "This denies senior officers access to numerous great proposals, which the field staff have by temperance of their day by day brush with various down to earth issues." So far as this issue is concerned, the well-being work culture of police is critical. In the light of the above occasions, the police in India can scarcely be named as individual-friendly.


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Suggestions to Improve Community Policing

The noteworthy changes which are required for the development and welfare of this concept are: • The relationship between the police and the citizens ought to be such that, it is based on mutual faith and trust and develop a sense of responsibility towards each other for solving the problems at ground level. • Police chain of importance should be made judicious and advanced. It should be wider at the constabulary level and limited at center. Along these lines, the constables are far less in number to cover every panorama of complications, which can be solved by the natives in their locality/community. • The expanding intricacy in the police working throughout the years requests specialization. Police power of past characterization having critical approach should not come in coordination with the general society. • Techniques for examination should be changed. The general sentiment of fear among the nationals is quick outcome of the use of such methodologies. The standard systems for expelling information through torment ought to be restricted. These methodologies require to be supplanted by psycho-legitimate tests. At this moment these systems are not upheld with authentic endorsements, yet rather considering the convenience and accomplishment of these procedures and brutality related with torment, these methodologies should be given lawful authorization. • The techniques for police preparing need advancements and its course content needs to be updated. For example, yoga should be embedded in its educational modules. Stress ought to be laid on the reception of mental strategies to bestow preparation. The course substance ought to be such that which may help in creating demonstrable skill and administration and introduction with respect to new areas of skill development. 4

Conclusions

Since community policing is a stand-out association among police and public, it finds its quality in like manner encompassing trust and hones people to have out their influence in dealing with their own issues and overhaul general individual fulfillment in a community. If the speculation of the general populace moreover makes one more walk ahead as a matter of benevolence among neighbors, the preferred standpoint for the overall population can be expanded. There is a critical need to consolidate worldwide guidelines in community policing activities which ought to be regulated as well as disguised in police working system that requires standard audit. There is in like manner a need to move a long way from the pioneer model of master towards an organization of arranged practice in the police service. The evaluation of community policing exercises have focused on the connection between key basic undertakings and the fear of crime, crime rates, issues additionally, satisfaction with the police. People and police coordinate to outline the organization methodology called policing with community policing. It is more prominent so, community policing is, inherently, a rationale of policing and can't be seen as its distinctive branch. The police force needs to move a long way from the extraordinary unit/specific activities based strategies, which are


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useful for setting up the thought in the department. Every officer in the workplace should recognize the possibility of bad behavior as an expectation and organizational limits are comparably as basic as law enforcement. On the other hand, the individuals living in a community should likewise be submitted in understanding their responsibility as a basic part in wrongdoing prevention. This will improve police response to organize needs, raise the standard of work through more imperative work involvement and will set up a standard structure.

References 1. Angell, John E. 2001. Toward an Alternative to the Classic Police Organisational Arrangement: A Demographic model. [ed.] Quint Thurman, Jihong Zhao and Andrew L Giacomazz. Community Policing in a Community Era: An Introduction and Exploration. Los Angeles, California : Roxbury Publishing Company, 2001, pp. 185-206. 2. Basham, A L. 1994. The Wonder That Was India. New Delhi : Rupa & Co., 1994. 3. Bureau of Police Research and Development, Ministry of Home Affairs, Government of India . 2010. Research Studies on Police and Prison Issues (1970-2009) Compendium. New Delhi : Ministry of Home Affairs, Government of India, 2010. 4. Community Policing. Burden, O. 1992. 1992, National Fraternal Order of Police Journal, Fall/Winter, pp. 31-35. 5. Denney, Lisa and Jenkins, Sarah. 2013. Securing Communities: The What and the How of Community Policing. [Online] July 2013. https://www.odi.org/sites/odi.org.uk/files/odi-assets/publications-opinion-files/8491.pdf. 6. Department of Social Welfare (Planning Branch), Government of NCT of Delhi. 2011. Material for Preparation for Economic Survey (2010-11). [Online] 2011. http://delhi.gov.in/wps/wcm/connect/874adc0045b34698835d9fc1c1f135e9/Economic+Survey+2010-11+DSW.pdf?MOD=AJPERES&lmod=366753429&CACHEID=874adc0045b34698835d9fc1c1f135e9. 7. Friends of Police. Friends of Police Home Page. [Online] https://www.friendsofpolice.org/. 8. Kumar, Pramod. 2011. Community Policing Programme In Punjab. s.l. : Institute for Development and Communication, , 2011. 9. Nalla, Mahesh K and Newman, Graeme R. 2013. Community Policing in Indigenous Communities. 2013. 10. Public Concern for Governance Trust. Public Concern for Governance Trust Home Page. [Online] http://www.pcgt.org/. 11. Shadow policing: the boundaries of community-based â&#x20AC;&#x2DC;policingâ&#x20AC;&#x2122; in Northern Ireland. Topping, John and Byrne, Johnny. 2014. 2014, Policing and Society, pp. 522-543. 12. Tripura Police. 2011. 'Prayass' A Community Policing Initiative of Tripura Police. Tripura Police. [Online] 2011. http://www.tripurapolice.gov.in/prayaas.


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The Right to Have Political Voice: Situating the Right to Political Participation of National Minorities under the UN and Council of Europe Human Rights Regimes Amin Labbafi1 1Research

1

Scholar, Ă&#x2026;bo Akademi University alabbafi@abo.fi

Introduction

Power accompanies the ability to control people and events affecting them (Weller, 2010, p. VII). In a democratic society power or authority resides in people. It is in this context that the participation of national minorities becomes essential because if access to the means of collective decision-making becomes impeded for national minorities, they will also lose their ability to decide upon the matters which are essential to their cultural identity. Democracy at its heart has the core idea that the legitimacy of the authority is derived from the consent and participation of individuals who are citizens of a state (the idea of the democratic franchise). In other words, legislative mechanisms and enacted laws, which affect the lives of individuals, cannot be considered legitimate if individuals have not consented those enacted laws through either direct consent or the consent of their representatives. Therefore, the idea of participation of all the segments of society in the decision-making process and the mechanisms that allow for the effective participation of diverse groups constitute the core of democratic governance. In this paper, it will be argued that the political participation of national minorities in the processes of public decision-making matters for several reasons. Firstly, political participation as a right is enshrined in the ratified international and regional human rights treaties as a guaranteed right. Its meaningful application regarding minorities needs special considerations, and it should be understood beyond the mere formal recognition of this right by giving due attention to the specific needs of national minorities. Secondly, the historical marginalization of national minorities has led to structural exclusion, and thus, the violation of the human rights of individuals belonging to national minority groups in various ways. The participation of national minorities in political life and public institutions can be a response to more extensive problems, such as discrimination and marginalization of minority groups. It is because political participation can empower individuals belonging to minorities to deal with their concerns through the authority granted to them to have a share in the working of political institutions. Finally, from the perspective of national peace and security; an inclusive, plural democracy, which allows national minority groups to take part in public decision makings on an equal footing with the majority population, can be the ultimate solution for the prevention of ethnic conflicts, and threats to both national, and international security. The security dimension of national minoritiesâ&#x20AC;&#x2122; issues has been mostly reflected in the works of the Conference for Security and Co-operation in Europe (Present OSCE), which has had a central role in the security paradigm of Europe after the cold war. The participating states in the Conference on the Human Dimension of the CSCE emphasized the importance of respect for the universal human rights of national minorities for the reasons of peace and prevention of


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conflict. In this regard, the Copenhagen Document reaffirms (as in para 30) (Conference on Security and Cooperation in Europe (CSCE/OSCE), 1990), “minority rights are part of universally recognized human rights is an essential factor for peace, justice, stability, and democracy in the participating states.” Although these documents have no legally binding effect, they have been an inspiration for the development of other legally binding instruments for the protection of national minorities' rights. The present paper addresses the following questions: Is there any special right to political participation for persons belonging to national minorities? Also, what are the legal grounds for justifying the existence of a right to political participation for national minorities? The article will explore the existing legally binding instruments concerning the right to political participation of national minorities in two levels of the UN system and regional system of the Council of Europe (CoE). Also, the documents adopted by the CSCE/OSCE will be examined as far as they are related to the development of minority rights protection regime within the Council of Europe. The emphasis, however, will be on the Council of Europe instruments because it constitutes one of the most developed models for the protection and accommodation of national minorities rights. 2

Public Participation: A Substantive, Enabling Right

The substance of national minorities’ rights can be categorized in two respects. The first category of minority rights is concerned with issues, such as language, culture, education, and access to jobs; these rights have an object-oriented nature. The second category includes rights such as the right not to be discriminated against based on ethnicity or the right to political participation of minorities in the public affairs of their country. These rights have a process-oriented nature, which can result in one or more objects of the former category. This approach considers the right to public participation of national minorities as an enabling right that its objective is the protection of matters of primary importance to national minority groups, such as their cultural identity. In other words, the protection of national minorities’ identity is the outcome of effective political participation. In this regard, the ACFC Commentary on Article 15 of the FCNM regards full equality, protection of minorities’ cultural identity, and participation of minorities in public life as, “three corners of a triangle,” which constitute the foundation of the FCNM (Council of Europe, 2008). The Advisory Committee of the FCNM believes whatever the mechanisms of public participation are, they should satisfy two requirements and those are, “[…] real opportunities to influence decision-making and the outcome of which should adequately reflect their needs” (para. 13) (European Court of Human Rights, 2008). Indeed, the political participation of minorities, in addition to providing equal opportunity to become represented in the forums of public decision-making, should result in the protection of national minorities’ cultural identity. Therefore, the right to public participation is a human right in itself, which plays a crucial role in the effective exercise of other human rights, especially the protection of national minorities’ right to culture (para. 88) (UN Human Rights Council, 2014). It is important to distinguish between universally applicable human rights and specific minority-related rights, which persons belonging to minorities can enjoy in accordance with their association to a minority group. The former includes the universal rights and freedoms that states must respect, protect, and promote concerning all individuals within their jurisdiction in a non-discriminatory manner as stipulated in Article 2 of ICCPR, Article 1 of CERD, Article 14 of ECHR and Article 1 of Protocol No. 12 to ECHR. The grounds of


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discrimination include any differentiation based on race, color, sex, language, religion, political opinion, national or social origin, property, birth, association with a national minority, or another status. The latter refers to a specific apparatus of international law which applies to persons who identify themselves as belonging to a minority group to protect their cultural identity. As Patrick Thornberry argues, the human rights element of rights and freedoms guaranteed in the treaties are secured to all inhabitants of a state, whereas those rights with minority rights element are related to persons belonging to national minority communities (Thornberry, 1991 p. 170). Although there is a difference between minority rights of individuals who belong to national minority groups and the general category of human rights, it does not exclude the relation between the generally codified human rights and those provisions with a more minoritycentric language enshrined in the FCNM. We need to draw on both of these categories mainly because the corpus of universally applicable human rights is legally-binding and contain treaty obligations which can be of use for legal interpretation to compensate for the weakness and the lack of clarity regarding standards related to minorities’ rights protection regimes. The weakness of international instruments regarding minority rights is in two respects. Firstly, except for the FCNM that is legally binding, they either lack a legally binding status or lack a juridical character to allow individuals to enforce the implementation of related provisions by legal actions before a competent court or tribunal. Even the FCNM, as the only legally-binding instrument dedicated to the protection of national minorities, does not foresee any mechanism for individual complaints regarding the violation of the provisions of the FCNM. Secondly, the content of minority related instruments, such as the FCNM, “includes no directly applicable rule but disposition programs (Thiele, 2006 p. 125),” which grants states a wide margin of discretion. Therefore, we need to rely on the generally applicable body of human rights and relevant international law principles to give a concrete interpretation to the question of minorities’ entitlement to participate in the political and public life of their states and consequently identify related shortcomings. In this regard, the International UN system and the regional system of the CoE will be discussed and analyzed in standards pertaining to the protection of minority communities and the public participation of persons belonging to national minority communities. Besides, the CSCE/OSCE as a multilateral political organization will also be discussed because, despite its non-binding character, it can shed light on relevant hard law sources regarding public participation of persons belonging to national minorities. 2.1

The UN System

Within the UN human rights protection system, the only document which is specifically concerned with the protection of minority rights is the non-binding 1992 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities adopted by General Assembly, which contains provisions that specifically deal with minorities (UN General Assembly, 1992).3 In this regard, the UN instruments can be divided in terms of their relevance to the protection of minority rights into two groups. The first category is the UN Minority Declaration and related Special platforms and mandate holders that exclusively deal with minority rights issues. These are mainly preoccupied 3

See Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (European Court of Human Rights, 2008).


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with, inter alia, the thematic reports, promotion of dialogue among states in matters related to minority groups and the provision of advice on the minority-specific issues, which lack a legally-binding status. In this respect, the Independent Expert on Minority Issues, the Special rapporteur on minority issues and the UN Forum on Minority Issues share the common goal of promotion of the implementation of the UN Minorities Declaration. The second category is the UN General human rights instruments, including the International Covenant on Civil, and Political Rights and the instruments primarily adopted for dealing with other human rights concerns, such as the International Convention for the Elimination of Racial discrimination (ICERD). These instruments are legally-binding and contain provisions on the protection of national minorities, such as Article 5.C of ICERD, which refers to the public participation of persons belonging to national minorities as one of the effective ways for the elimination of racial discrimination (UN General Assembly, 1969). In addition to Article 5.C of ICERD, which refers to public participation as an instrument for encountering discrimination, Article 25 of ICCPR provides for the right to public participation in a general language as the right of every citizen. The right to political participation is also reflected in Article 21 of the Universal Declaration of Human Rights. The chapeau of Article 25 of ICCPR provides for the right to political participation with an explicit reference to Article 2 of the same covenant on the prohibition of discrimination. This explicit reference to Article 2 of ICCPR can reflect the importance of the principle of nondiscrimination for the exercise of the right to political participation. Article 25 of the ICCPR states (UN General Assembly, 1976): “Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives. (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors. (c) To have access, on general terms of equality, to public service in his country.”

Similarly, Article 21.1 of UDHR states (UN General Assembly, 1948), “Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.” Subsequently, Article 21.3 of UDHR holds (UN General Assembly, 1948), “The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.” The only difference of the formulation of Article 21 of UDHR, taking into account its customary status in international law, is that it explicitly refers to public participation of people as the legitimizing source of political authority. Article 25 of ICCPR in conjunction with Article 27 of the same covenant, regarding the rights of persons belonging to minorities to enjoy their culture, profess and practice their religion and language, as well as Article 2.1 and 2.2 on the principle of non-discrimination, constitute the basic rules for the protection of the content of the effective participation of minorities in political life.


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In this regard, Article 25 of ICCPR and its interrelatedness with Articles 2 and 27 can guide us to a understanding of the content of the universal right to political participation, and its application concerning individuals belonging to national minorities. Martin Scheinin in his individual dissenting opinion, in the communication brought against Namibia before the Human Rights Committee, argues that the Committee failed to interpret Article 25 in the context of minorities’ enjoyment of the right to participation in public affairs. He states (UN Human Rights Committee, 2000): “There are situations where article 25 calls for special arrangements for rights of participation to be enjoyed by members of minorities and indigenous peoples. When such a situation arises, it is not sufficient under article 25 to afford individual members of such communities the individual right to vote in general elections. Some forms of local, regional, or cultural autonomy may be called for to comply with the requirement of effective rights of participation.” Scheinin’s argument is in conformity with the authoritative interpretation of the UN Human Rights Committee in GC No. 23 and GC No. 25, which follows the same line of thought about minorities’ public participation. The Committee states in General Comment No. 23 (para. 7) (UN Human Rights Committee, 1994): “With regard to the exercise of the cultural rights protected under article 27 […] the enjoyment of those rights may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them.”

The UN Human Rights Committee in General Comment No. 25 is more specific regarding facilitating the access of minorities to participatory mechanisms by promoting electoral facilities that can be used by all minority groups (para. 12) (UN Human Rights Committee, 1996). In this regard, states should take positive measures to remove the obstacles for the effective participation of individuals who belong to national minorities. For example, states should use minority languages on voting ballots and provide education and information necessary for voting in the areas where minorities live. It is only through such positive measures that the very essence of the exercise of the right to political participation which is “the reflection of everyone’s will,” can be realized in relation to national minorities (ICCPR, 1976, Art. 25) (UN General Assembly, 1976). Thus, special measures to facilitate the political participation of national minorities seem to be a necessity for the political participation of national minorities without which the essence of the general right to political participation, which is the reflection of the will of everyone, might be impaired. Besides, one can argue that these measures are not to be understood as a more favorable treatment of members of minority groups. Indeed, such measures do not add to the substance of the general right to public participation, rather, these measures are to be seen as means to remove the special obstacles that individuals belonging to national minorities, unlike the majority population, encounter for the exercise of their right to political rights. The other implicit legal ground for the right to political participation of national minorities is the prohibition of discrimination. The prohibition of discrimination has major implications in relation to the political participation of national minorities. The prohibition of discrimination, based on the listed grounds in Article 2 of ICCPR, is a principle in international law. Besides, the prohibition of discrimination based on the ground of race enjoys a heightened status in international law and is considered as an obligation erga omnes in the Barcelona Traction case (1970 p. 32). The International Court of Justice, in the Barcelona Traction case, considers the prohibition of racial discrimination among the customary principles of human rights, which protect the very core of human dignity (1970 p. 32). However, the


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Court only considers racial discrimination as obligation erga omnes that its infringement is an action amounting to a violation of the dignity of the human being. Although ICJ in the Barcelona Traction case only considers racial discrimination as one of the peremptory norms, it is difficult to argue that the concept of race does not include ethnicity. In this respect, Article 1.1 of ICERD defines racial discrimination as, “any distinction, exclusion, restriction or preference based on race, color, descent, or national or ethnic origin (UN General Assembly, 1969).” In addition, the travaux préparatoires4 of ICCPR also considers the term ‘ethnic’ as including both racial and cultural characteristics pertaining to minority groups (para. 11-12, 16-21) (UN Commission on Human Rights, 1950). It suggests that ethnicity and race are synonyms, and drawing a rigid distinction between them might lead to absurd consequences, such as leaving communities with different cultural characteristics unprotected (para. 31) (Sub-commission on the Prevention of Discrimination and Protection of Minorities, 1950). The view of the United Kingdom in the fifty-eighth meeting of the sub-commission on prevention of discrimination and protection of minorities was that “the word ethnic seemed to be more appropriate, as it referred to the entire biological, cultural and historical heritage of an individual or a group whereas racial referred only to the physical aspects of such a heritage (para. 12) (Sub-commission on the Prevention of Discrimination and Protection of Minorities, 1950).” The chairman of the meeting also supported this view. Regarding the general right to political participation, differential treatments leading to the exclusion of national minorities from participation in public decision-making institutions can be deemed to fall under the category of racial discrimination. In addition to the centrality of the prohibition of discrimination based on race and ethnicity in international law, political participation is also an effective instrument for eliminating discrimination against ethnic identities. It is because political participation affords national minorities the ability to influence public decisions which might affect them. The ICERD is more explicit about political participation in light of the principle of non-discrimination. Article 5(c) of ICERD requires states to undertake measures to tackle discrimination along the lines of ethnicity, age, gender, etc. and reaffirms that one of the means to do so is to ensure political rights, such as participation in elections based on internationally recognized electoral principles of equal and universal suffrage (UN General Assembly, 1969). One of the contributions of ICERD to the principle of non-discrimination is that it requires states to take measures in forms of positive discrimination to empower disadvantaged individuals belonging to minority groups. Article 1(4) of ICERD states: “Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination […] (UN General Assembly, 1969).”

It can be argued that over-emphasis on formal equal treatment can lead to de facto inequality through negligence to remove structural obstacles for facilitating the right to political participation of members of a national minority group. Here, non-discrimination as an overarching principle of international law can serve as an important legal principle for the interpretation of the right to political participation of persons belonging to a national

4

See Vienna Convention on the Law of Treaties, 27 January 1980, Article 31 and Article 32. According to Article 32, the preparatory work of a treaty is a recognized means for interpretation of treaties.


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minority. It is in this regard that the Sub-Commission on Prevention of Discrimination and Protection of Minorities states (UN Commission on Human Rights, 1949 p. 2): “Protection of minorities is the protection of non-dominant groups which, while wishing in general for equality of treatment with the majority, wish for a measure of differential treatment in order to preserve basic characteristics which […] distinguish them from the majority of the population.”

2.2

The Council of Europe

The main instrument for the protection of human rights within the CoE is the European Convention on Human Rights (hereinafter ECHR). It did not contain any provision on the universal right to participation in the public affairs in the first place until the Protocol No. 1 was added to the convention. Article 3 of Protocol No. 1 to the ECHR provides for the right to political participation through participation in elections. Article 3 of Protocol No.1 (hereinafter P1.3) states (Council of Europe, 1953): “The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”

The formulation of the right to political participation, as reflected in P1.3 of the ECHR, is different from the formulation of the same right in ICCPR in two ways. First, although participation through voting is an essential component of genuine democracy, political participation is not limited to voting. In other words, the wording of P1.3 does not contain any explicit reference to political participation through representation or the right to directly participate in the political life of a state by standing as candidates in elections. Nonetheless, this became further elaborated by the European Court of Human Rights (ECtHR) which does not consider political participation limited to the act of voting and extends it to encompass representative means of participation by, “standing for election (para. 51) (European Court of Human Rights, 1987).” Second, the text of P1.3 only refers to the election to choose members of the legislature, and it excludes other organs of state, such as the administrative bodies. It is evident that this Article does not entitle individuals to the right to participate in public affairs beyond the legislative bodies, such as the administrative body of the state if the constitution of the respective country does not provide for it. The Convention lacks reference to the term minority except in Articles 14 of ECHR as well as Article 1 of Protocol No.12 to ECHR. These articles prohibit any differential treatment for the purpose of the enjoyment of the rights guaranteed in ECHR based on, inter alia, belonging to a national minority group. However, the Convention lacks explicit reference to minority groups beyond the prohibition of discrimination. Such absence of reference to minority groups is especially crucial regarding guaranteeing the right to freedom of culture of persons belonging to minorities, which could be taken into account for the interpretation of the right to political participation of persons belonging to national minorities. However, democracy which political participation can be presumed to be its beating heart has a principal status in ECHR as the preamble of the Convention states (Council of Europe, 1953): “Reaffirming […] belief in those fundamental freedoms which are the foundation of justice and peace in the world and are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the Human Rights upon which they depend.”


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The rulings of ECtHR elaborated on the idea of effective political democracy. As reflected in the preamble of the Convention, the Court reiterates that the protection of human rights and effective political democracy go hand in hand. The Court considers P1.3 of ECHR as, “[a] principle that is characteristic of an effective political democracy” and of, “prime importance in the Convention system (para. 47) (European Court of Human Rights, 1987).”5 In this respect, democratic governance is an underlying principle for the effective implementation of the Convention, and this has consistently been referred to in the Strasbourg Court rulings (para. 45) (European Court of Human Rights, 1998). Therefore, democracy can have the status of a general principle of the regional system of the CoE because the right to political participation, as the cornerstone of democracy, is considered by the Court as a fundamental feature of the European public order, and the only political model compatible with ECHR (para. 45) (European Court of Human Rights, 1998). In this respect, because the specific situation and concerns of persons belonging to national minority groups differ from those of the majority, an inclusive democratic system that allows for the plurality of political interests should facilitate the access of national minorities to means of political participation. This can be done if individuals belonging to national minorities can vote for their representatives or stand as a candidate of their community in a non-discriminatory fashion. The ECtHR highlights the value of pluralism as an integral element of the kind of democracy that is compatible with the Convention. In other words, the Strasbourg Court acknowledges that pluralism, as the integral value of political democracy, is not compatible with the exclusion of national minorities in relation to their right to political participation (para. 58) (European Court of Human Rights, 2006). For instance, in Sedjic and Finci, the Court finds a violation of P1.3 in conjunction with article 14 of ECHR. The Court holds that the differential treatment regarding the ineligibility of the representatives of other national communities to stand in elections of the House of People and the Presidency of Bosnia and Herzegovina was not compatible with the requirements of a pluralist democracy that is built on the value of diversity and the principle of non-discrimination (para 44-45) (European Court of Human Rights, 2009). The materials of legal assessment for the Strasbourg Court in cases related to the political participation of minorities are the general right to political participation as enshrined in P1.3 and the principle of non-discrimination as enshrined in Article 14 of ECHR and Article 1 of Protocol No. 12 to ECHR. Also, the principle of democratic governance in a plural manner, as stated in the preamble of ECHR, has become a consistent theme for the Court in deciding the cases before it. The articles mentioned above constitute the foundation for the protection of the right to political participation of individuals belonging to national minorities, which can be legally enforced by individuals before the Court when CoE member states fail to meet their obligation. The Court, however, has been more conservative with matters related to the mechanisms and procedures of political participation, which might structurally limit or even undermine the ability of national minorities to exercise their right to public participation. For example, In Yumak and Sadak case, the Court adopted a limited, conservative approach regarding the issue of minimum electoral thresholds for minorities (para. 110-125) (European Court of Human Rights, 2008). Nonetheless, the Court in other contexts adopts views that seem to be promising for a consistent interpretation of the right to political participation of national minorities. Concerning the issue of de facto discrimination, the Court considers equality of 5

mutatis mutandis to para. 271 in Davydov and others v. Russia, Judgement of 30 May, 2017 in the European Court of Human Rights (Davydov and others v. Russia, Application No. 75947/11, 2017).


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the treatment of two persons or groups of individuals while their situations are considerably different is discriminatory. In light of the Court jurisprudence, the issue of indirect discrimination has been addressed in the Thlimmenos case in which the Court acknowledged that equal treatment of individuals whose situation considerably differs from that of others might result in indirect discrimination (para. 38) (European Court of Human Rights, 2000).6 However, ECtHR fails to adopt the same approach in relation to the issue of minorities’ representation in Turkey in Yumak and Sadak case. It is essential to consider that imposing a one-size-fits-all approach to the political participation of minorities by the Court will not be a fruitful approach. However, the importance of the political participation of minorities for the preservation of minorities’ cultural identities seems to be more compatible with the spirit of ECHR. In this regard, the principles of democracy and respect for pluralism in lights of the principle of nondiscrimination should be a guide for the assessment of the mechanisms designed for political participation in order to adequately protect the content of P1.3 for individuals belonging to national minorities. This kind of assessment seems to be absent in the Court’s judgment in Yumak and Sadak. The FCNM is another legally binding treaty within the regional system of the CoE that deals specifically with issues concerning national minorities. Both the preamble of the FCNM and explanatory report to the FCNM clarify that the Convention was the CoE attempt to transform the political obligations of the CSCE/OSCE documents regarding minorities into legally-binding standards (Carmen, 2006, p. 136).7 The Convention has a monitoring body (ACFC) which together with the Committee of Ministers of the CoE are responsible for the monitoring of the implementation of the Convention provisions through country-specific reports, and thematic reports on particular, concurrent areas of concern to minorities [Articles 24 and 26 of the 1998 Convention) (Council of Europe, 1998). There is no complaint mechanism to allow individuals or groups to lodge a complaint against member states. Also, the ACFC works in cooperation with the Committee of Ministers, which is a political organ to monitor the implementation of the Convention provisions [Art. 26] (Council of Europe, 1998). Even though a political organ monitors the Convention (the Committee of Ministers), the Convention has a legally-binding character (Brownlie, 2012 p. 648). Article 15 of the FCNM, explicitly refers to the right to public participation of national minorities, including participation in the political life of the hosting state. The importance of public participation within the FCNM is supported by the adoption of a Commentary on Article 15 by the Advisory Committee, which is exclusively concerned with the Effective Participation of Persons Belonging to National Minorities. In this regard, the Advisory Committee assigns a central role to article 15 of the FCNM and considers it as, “an indicator of the level of democracy and pluralism of society (ACFC, 2008, para. 5).” There is no doubt that according to the principle of equality and non-discrimination the right to political participation can be well guaranteed for everyone without any distinction based on, inter alia, affiliation with a national minority group.8 This represents the normative equality between citizens concerning political participation, which is based on the traditional principle of one-person, one-vote. Also, democracy and pluralism as the only political ideas which are compatible with ECHR require that although the majority has a significant influence on democratic systems, it does not mean that the voice of national minorities mutatis mutandis, para. 176 of D.H. and Others v. the Czech Republic in the European Court of Human Rights (D.H. and Others v. the Czech Republic, Application No. 57325/00, 2007) 7 See also FCNM preamble. 8 See Chapeau of Article 25 of ICCPR as well as Article 14 of ECHR, Article 1 of Protocol No.12 to ECHR. 6


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due to their numerical weakness can be disregarded. Furthermore, the fundamental right of persons belonging to minorities to freely enjoy and practice their culture intensifies the protection of national minorities’ participation in the political life to be able to have an influence on matters, which directly or indirectly, affect their cultural identity (para. 7) (UN Human Rights Committee, 1994). In this regard, the Advisory Committee considers Articles 4, 5, and 15 of the FCNM as the backbones of the catalogue of minorities’ rights which lay the foundations of the FCNM. These articles respectively deal with the right to equality, the responsibility of states to promote conditions for the development of minorities’ identity, and the right to participation in public life. The ACFC considers the right to effective participation as a right that enables minorities to preserve their identity as enshrined in Article 5 of the FCNM. Besides, it allows individuals who belong to national minority groups to enjoy full equality as enshrined in Art 4 of the FCNM. Thus, two principal aims of the Convention can become realized through the right to political participation of national minorities without which neither full equality nor the preservation of the cultural identity of national minorities’ can be achieved (ACFC, 2008, para. 15). Therefore, the political participation of national minorities as a right entitles individuals belonging to national minorities to political participation in a non-discriminatory manner along the line of their cultural identity. It requires not only recognition and noninterference with the exercise of the right to political participation but also affirmative measures to enable national minorities to have an influence on matters which are of cultural importance to them. However, the nature and scope of these affirmative measures are vague and are left within the margin of discretion of member states (Council of Europe, 1995) (kindly refer to para 11 of the 1995 Council of Europe report). 3

Public Participation of National Minorities through the Lens of the CSCE/OSCE

The Conference on Security and Cooperation in Europe (CSCE) was founded in 1973 as a multilateral forum for member states negotiations.9 After the 1994 Budapest Summit, the Conference continued its work under the new name of the Organization for Security and Cooperation in Europe (OSCE). The primary concern of CSCE was the establishment of a channel for talks and cooperation between former East-West blocks during the Cold War. There were fundamental changes in the working of the CSCE/OSCE in terms of increasing emphasis on human rights and minority issues, during the conferences held in the late 80s and the early 90s. The first references to the protection of national minorities were made in principle VII of the 1975 Helsinki Final Act which states (Conference on Security and Cooperation in Europe (CSCE/OSCE), 1975 p. 6): “The participating States on whose territory national minorities exist will respect the right of persons belonging to such minorities to equality before the law, will afford them the full opportunity for the actual enjoyment of human rights and fundamental freedoms and will, in this manner, and protect their legitimate interests in this sphere.” In this regard, the concept of the human dimension introduced in the concluding document of the 1989 Vienna meeting in which member states made nonlegal commitments concerning the protection of human rights and national minorities (read § 18-19 of the concluding document) (Conference on Security and Cooperation in Europe (CSCE/OSCE), 1989). 9

At present, all 47 Council of Europe member states are also member states of OSCE.


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One of the most critical documents of the CSCE/OSCE which dedicates considerable attention to the protection of minorities, including the right to public participation, is the 1990 Copenhagen Document on the human dimension (Conference on Security and Cooperation in Europe (CSCE/OSCE), 1990) (para. 35). The Copenhagen Document later became the primary source of inspiration for the UN Minority Declaration and the FCNM, which both contain provisions on the political participation of individuals who belong to national minorities (Pentassuglia, 2002 p. 142). In the 1992 Helsinki summit participating states reaffirmed their determination to implement their commitments in the Vienna Concluding Document and the Copenhagen Document relating to the rights of persons belonging to national minorities. In this regard, the 1992 Helsinki Document reiterates the importance of the right of persons belonging to national minorities, “to participate fully, in accordance with the democratic decision-making procedures of each State, in the political […] decision-making and consultative at the national, regional and local level, inter alia, through political parties and associations (Conference on Security and Cooperation in Europe (CSCE/OSCE), 1992) (as per para. 24).” In this context, the CSCE/OSCE highlights the importance of strengthening the viability of democratic governments for realizing objectives, such as conflict prevention and the creation of confidence between people and the governments. Also, the member states emphasized the vital role of plural democracy, which allows national minorities to participate in the national decision-making processes (Conference on Security and Cooperation in Europe (CSCE/OSCE), 1992) (kindly refer to para. 23). Following the emphasis that the Vienna Concluding Document and the Copenhagen Document put on minorities issues, in the 1992 Helsinki summit, member states established the Office of the High Commissioner on National Minorities (HCNM). The primary role of the Office is to provide early warning about tensions involving national minority issues. Thus, the Office designed as, “an instrument of conflict prevention at the earliest possible stage (Conference on Security and Cooperation in Europe (CSCE/OSCE), 1992) (as per the para. 2-3 of the Helsinki document).” After the establishment of HCNM, the Office took substantial steps toward the development, better clarification, and better implementation of international law standards regarding minority rights in different areas, including the right of minorities to participate in public and political decision-making. These attempts were in the form of thematic recommendations regarding recurrent issues in member states that the High Commissioner had faced in his work. The most important recommendations are the Lund Recommendations, the Oslo Recommendations, and The Hague Recommendations which are concerned with the effective participation of national minorities in public life, the linguistic rights, and the education rights of persons belonging to national minorities, respectively. The bodies of the CSCE/OSCE as well as the recommendations and reports issued under the mandate of HCNM have no legally-binding effect and consequently, no capability for standard making. However, the human dimension of the CSCE/OSCE, as reflected in the Vienna Concluding Document and preamble of 1990 Copenhagen Document, emphasizes human rights, protection of minorities, and democracy as the principles of the new order of Europe after the collapse of the Soviet Union (1990, preamble). In this regard, the Copenhagen Document reminds member states of their obligations under international human rights treaties, which they are bound to respect and protect (1990, para. 38). The same approach reflected in the thematic recommendations, introduced by the OSCE High Commissioner on National Minorities. In this regard, the Lund Recommendations contain a set of guidelines which are either compiled from the already existing international standards with further specifications or contain proposals that have been identified as a response to a general pattern of deficit in the CSCE/OSCE member states (Pentassuglia, 2002 p. 139). The


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Lund Recommendations aim to facilitate the protection of minorities’ participation in the conduct of public affairs and for that purpose draw upon already existing standards in international law. Even though the documents adopted by the CSCE/OSCE are not legally-binding, the workings of the OSCE organs and the HCNM have had a decisive influence on the development of minority protection in thes European regional system (Pentassuglia, 2002 p. 139). As was mentioned earlier, the CSCE/OSCE has contributed to further elaboration of legal standards concerning the protection of national minorities, especially in co-operation with the CoE and the adoption of the FCNM in 1995 (Narten, 2006 p. 109). Such influence is significant considering the precedent efforts of some of the CoE member states, such as Austria in 1993, which tried to add a protocol to ECHR concerning the rights of individuals belonging to minorities but failed to succeed. It is noteworthy that in 1991 member states agreed under the Moscow Document that the principle of non-intervention is not applicable in cases related to the human dimension (Conference on Security and Cooperation in Europe (CSCE/OSCE), 1991) (please refer to para. 9-11). Consequently, the issues related to minorities and human rights become issues of international concern in which state sovereignty is non-applicable and can lead to reporting measures under the Moscow mechanism regarding violations in member states. This mechanism can be requested by any of the OSCE member states even if the host state denies as long as five other states support the initiative to establish a country mission consisting of rapporteurs. In this respect, although the commitments, made within the CSCE/OSCE framework, lack a legally-binding status, they are politically binding and have contributed to the development of minority rights regimes, especially in the context of the CoE (Pentikainen et al., 1993 p. 117). 4

Mechanisms for Political Participation of National Minorities

One can argue that there is not any provision in hard law sources of international law in favor of any special mechanism to facilitate the political participation of national minorities. Nonetheless, the provisions of Article 25 of ICCPR and the communications before the UN Human Rights Committee of ICCPR, as well as P1.3 and the case law of ECtHR, emphasizes the centrality of electoral processes in democratic states. The principal expectation from electoral systems is that they should be capable of reflecting the opinion of people in the choice of their representatives (ECtHR, 1993, para. 50). The minimum legal standards as guaranteed in P1.3 of ECHR and Article 25 of ICCPR are that every citizen in a non-discriminatory fashion can participate in the conduct of the state and the mechanism of elections should be capable of reflecting the opinions of people. Therefore, apart from the duty of states to hold free and periodic elections, individuals’ right to political participation should be guaranteed in the form of the right to free elections. The Strasbourg Court, in light of the minimum legal guarantee of P1.3 of ECHR, holds that states cannot thwart, “the free expression of opinion of the people in the choice of the legislature (para. 51-52) (European Court of Human Rights, 1987).” In fact, even if states apply measures under their margin of discretion, these measures cannot aim at restricting the application of P1.3 for members of national minority groups. Also, the FCNM, which exclusively deals with minority rights, holds the same general approach regarding the political participation of members of national minority groups. The ACFC adopts the view that any standard making concerning the political participation of minorities should be cautious to domestic complexities of each state and avoid a one-sizefits-all approach (2008, para. 148). Therefore, appropriation of mechanisms for political


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participation of minorities should be done in a case by case and need-based manner. As Asbjørn Eide, the author of the commentary to the UN Minorities Declaration, states, “it is essential that the state consult the minorities on what would constitute appropriate measures, different minorities might have different needs that must be considered (2001, para. 30). It is in this regard that due attention should be given to mechanisms of political participation, to examine whether they can protect the exercise of the right to political participation for national minorities. In other words, structural problems can place a de facto restriction on the meaningful realization of the right to political participation as a guaranteed right. In this respect, the failure of states to take positive measures impedes individuals to have an influence on public decision-making to preserve their culture and protect their interests (read para. 30-31) (Eide, 2001). States should meet the minimum legal requirements, as stated in article 25 of ICCPR and P1.3 of ECHR regarding holding free elections. However, the distinct situation of minorities concerning the exercise of the right to public participation and the importance of this right for the preservation of minority culture should be considered in order to give the right to public participation an effective content for members of minority groups. In this regard, three characteristics can be identified in the case law before the Strasbourg Court, which is critical in relation to justifying and protecting the right to political participation of national minorities. First, one of the well-established legal principles, which can help to protect better the right to public participation of persons belonging to minorities, is the prohibition of indirect discrimination. Indirect discrimination refers to discriminatory results that are caused by equality of treatment. In other words, mere equality of treatment can lead to discrimination when two persons or groups of individuals have significantly different situations. The Court, in the Thlimmenos case, finds a violation of the content of Article 14 of ECHR, when a prima facie neutral law can have a detrimental impact on the rights of some individuals. Indirect discrimination and the removal of structural disadvantages faced by national minorities can be a basis for the justification of the need for special measures to facilitate the political participation of individuals belonging to minorities. In this regard, minorities’ political participation in the context of pluralistic democracy overlaps with the duty of states to protect the cultural identity of minorities through promoting, “[the] opportunity for contribution from those who are affected by public decision-making (OSCE High Commissioner on National Minorities, 1999 p. 6).” Second, the idea of democratic pluralism developed in the Strasbourg Court case law has implications for the general duty of states to be inclusive concerning, inter alia, the participation of national minorities in the political life of the state. In this regard, the importance of pluralism as the hallmark of democracy has been emphasized persistently by the Strasbourg Court (para. 49) (European Court of Human Rights, 1976). Third, the idea of the effectiveness of rights means that the exercise of individual human rights should find a concrete meaning in real life. Regarding the exercise of the right by individuals who belong to national minorities, states should adopt measures to actualize the reflection of the political voices of national minorities. In this respect, the Strasbourg Court in the Soering case reiterates the need for effective and meaningful enjoyment of the rights guaranteed in the Convention. The Court in its reasoning, which is in conformity with the provisions of Article 31.1 of the Vienna Convention on the Law of Treaties, states that the Convention provisions should be interpreted and applied in a manner to make its safeguards practical and effective, rather than illusory and theoretical (para. 87) (European Court of Human Rights, 1989). The effective implementation of the rights of individuals who belong to minorities is a guiding principle, which might require different affirmative measures based on the specific circumstances of minorities in each state. They might range from


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lowering the minimum thresholds in proportional electoral systems to facilitate the representation of national minorities to guarantying seats designated to minority representatives in the national parliaments. The ECtHR jurisprudence reveals that the Court, to a large extent, has left the determination of the precise scope and shape of these measures within the discretion of states. The Courtsâ&#x20AC;&#x2122; reluctance to intervene in drawing up the boundaries of a right to political participation for national minorities along with the vagueness of the language of Article 15 of the FCNM could have the impact of making national minoritiesâ&#x20AC;&#x2122; political participation a matter of political discretion rather than a legal right and a duty for states within the CoE. 5

Conclusions

Participation in political life lies at the heart of democracy. Democracy, itself, is the only form of governance that goes hand in hand with respect for human rights. The nexus between democracy and political participation is also related to the idea of pluralism that is one of the principal values of genuine and inclusive democracy. The importance of pluralism is the extent to which the European Court of Human Rights considers pluralism as a constitutive requirement for democracy. In this regard, as was examined in the present article, the content of the right to political participation for national minorities does not contain a new substantive right. Current international law standards and the idea of pluralist democracy can normatively cover the political participation of persons belonging to national minorities. The content of the right to political participation for minorities might, if circumstances demand, necessitate affirmative measures to be taken by states to enable them to exercise their right to political participation. In this regard, the difference in lifestyle, language, and cultural identity of persons who belong to national minority groups coupled with numerical inferiority and possible historical marginalization might cause special circumstances in which the lack of affirmative measures can render their right to political participation illusory. Furthermore, the cultural identity of national minorities intensifies the need of national minority groups to political participation to be able to influence public decisions that affect their identities. In other words, the meaningful protection of their identity cannot be achieved unless members of national minority groups have confidence in the governance of the state and are entitled to have their share of influence over the institutions of decisionmaking.

References 1. Barcelona Traction, Light and Power Company Limited (Belgium v. Spain), ICJ Reports 1970 (International Court of Justice February 5, 1970). 2. Brownlie, I. (2012). Brownlie's Principles of Public International Law. Oxford: Oxford University Press. 3. Conference on Security and Cooperation in Europe (CSCE/OSCE). (1975). Helsinki Final Act. Helsinki, Finland. 4. Conference on Security and Cooperation in Europe (CSCE/OSCE). (1989). Concluding Document of the Vienna Meeting.


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5. Conference on Security and Cooperation in Europe (CSCE/OSCE). (1990, June). Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE. Copehangen, Denmark. 6. Conference on Security and Cooperation in Europe (CSCE/OSCE). (1991). Document of the Moscow Meeting on the Conference on the Human Dimension of the CSCE. . Moscow, Russia. 7. Conference on Security and Cooperation in Europe (CSCE/OSCE). (1992, July). Helsinki Document. Helsinki, Finland. 8. Council of Europe. (1953). European Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocols Nos. 11 and 14 (ETS No. 005). 9. Council of Europe. (1995, February 1). Explanatory Report on the Framework Convention for the Protection of National Minorities (ETS No. 157). 10. Council of Europe. (1998). Framework Convention for the Protection of National Minorities (ETS No.157). 11. Council of Europe. (2008, May 5). Commentary on the Effective Participation of Persons Belonging to National Minorities in Cultural, Social and Economic Life and in Public Affairs. 12. D.H. and Others v. the Czech Republic, Application No. 57325/00 (European Court of Human Rights November 13, 2007). 13. Davydov and others v. Russia, Application No. 75947/11 (European Court of Human Rights May 30, 2017). 14. Eide, A. (2001, April 2). Final Text of the Commentary to the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious, and Linguistic Minorities (UN Doc. E/CN.4/Sub2/AC.5/2001/2). 15. Handyside v. the United Kingdom (European Court of Human Rights, Application No. 5493/72 December 7, 1976). 16. Mathieu-Mohin and Clerfayt v. Belgium, Application No. 9267/81 (European Court of Human Rights March 2, 1987). 17. Narten, J. (2006). The Human Dimension: The OSCEâ&#x20AC;&#x2122;s Approach to Human Rights. In F. Main, & P. Lang (Eds.), Human Rights in Europe: A Fragmented Regime? (pp. 102-119). 18. OSCE High Commissioner on National Minorities. (1999, September 1). The Lund Recommendations on the Effective Participation of National Minorities in Public Life & Explanatory Report. 19. Pentassuglia, G. (2002). Minorities in International Law: An Introductory Study. Strasbourg: Council of Europe Publishing. 20. Pentikainen et al. (1993). A Comparative Study of the Monitoring Mechanisms and the Important Institutional Frameworks for Human Rights Protection within the Council of Europe, the CSCE and the European Community. In A. Bloed, I. Leicht, & M. Nowak (Eds.), Monitoring Human Rights in Europe:Comparing International Procedures and Mechanisms (pp. 93-119). Dodrecht: Martinus Nijhoff Publishers. 21. Sejdic and Finci v. Bosnia and Herzegovina, Applications Nos. 27996/06, 34836/06. (European Court of Human Rights (Grand Chamber) December 22, 2009). 22. Soering v. the United Kingdom, Application No. 14038/88. (European Court of Human Rights July 7, 1989). 23. Sub-commission on the Prevention of Discrimination and Protection of Minorities. (1950). Report of the 3rd Session, 9-27 January 1950 (UN Doc. E/CN.4/358E/CN.4/SUB.2/119). United Nations. 24. Thiele, C. (2006). Minorities and Minority Rights in Europe. In F. Main, & P. Lang (Eds.), Human Rights in Europe: A Fragmented Regime? (pp. 120-136). 25. Thlimmenos v. Greece. Application No. 34369/97 (European Court of Human Rights (Grand Chamber) April 6, 2000). 26. Thornberry, P. (1991). International Law and the Rights of Minorities. Oxford: Clarendon Press. 27. Timishev v. Russia, Applications Nos. 55762/00 and 55974/00. (European Court of Human Rights (Second Section) March 13, 2006).


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28. UN Commission on Human Rights. (1949). The Main Types and Causes of Discrimination (UN Doc. E/CN.4/SUB.2/40/REV.1). United Nations. 29. UN Commission on Human Rights. (1950). Summary Record of the 48th Meeting (UN Doc. E/CN.4/Sub.2/SR. 48). United Nations. 30. UN General Assembly. (1948, December 10). Universal Declaration of Human Rights, General Assembly Resolution 217 A (III). New York City, NY, United States of America. 31. UN General Assembly. (1969, January 4). International Convention on the Elimination of All Forms of Racial Discrimination, United Nations Treaty Series, Volume 660. 32. UN General Assembly. (1976, March 23). International Covenant on Civil and Political Rights, United Nations Treaty Series Volume 999. 33. UN General Assembly. (1992, December 18). Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (UN Doc. A/RES/47/135). 34. UN General Assembly. (1992, December 18). Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (UN Doc. A/RES/47/135). 35. UN Human Rights Committee. (1994, April 8). CCPR General Comment No. 23: Article 27 (Rights of Minorities) (UN Doc. CCPR/C/21/Rev.1/Add.5). 36. UN Human Rights Committee. (1996, July 12). CCPR General Comment No. 25: Article 25 (Participation in Public Affairs and the Right to Vote) (UN Doc. CCPR/C/21/Rev.1/Add.7). 37. UN Human Rights Committee. (2000, July 25). Diergaardt et al. v. Namibia (UN Doc. CCPR/C/69/D/760/1996). 38. UN Human Rights Council. (2014). Factors that impede equal political participation and steps to overcome those challenges: Report of the Office of the United Nations High Commissioner for Human Rights (UN Doc. A/HRC/27/29). 39. United Communist Party of Turkey and Others v. Turkey, Application No. 133/1996/752/951 (European Court of Human Rights (Grand Chamber) January 30, 1998). 40. Weller, M. (2010). Democratic Governance and Minority Political Participation: Emerging Legal Standards and Practice. in Political Participation of Minorities: A Commentary on International Standards and Practice. Oxford: Oxford University Press. 41. Yumak and Sadak v. Turkey, Application No. 10226/03 (European Court of Human Rights (Grand Chamber) July 8, 2008).


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Relevance of the Exception of Political Offense in the Extradition Matters in the 21 st Century Padmja Mishra1 1Student,

National Law University, Odisha padmja1106@gmail.com

1

Introduction

The exception of Political offense has more often than not been a bone of contention in various extradition matters. Even though it was intended to provide protection to political refugees and preserve the right to dissent, it has been subjected to rampant abuse by the governments and criminals alike. This has led to several problems, the major one of them being the problem of terrorism. Overtime, the exception has acted as protective shelter for terrorists and there are no other safeguards currently in place to prevent its misuse. Hence, the provision can be re-structured or amended to suit the present times and if not, then doing away completely with the provision might be a better alternative to consider. This paper not only attempts to discuss the origin and development of the political offense exception and its evolving jurisprudence, but also questions its relevance in the modern scenario. 2

Brief History

The extradition treaties were incorporated with the aim of international co-operation and to ensure that the people charged with severe humanitarian crimes are duly and adequately prosecuted in accordance with the law of the state where the crime was committed. It involves matters of people “who have been charged but not convicted, convicted but have escaped custody and those who have been convicted in their absence.” (The political offense exception in international extradition, 1980) Extradition treaties can attribute their origin to ancient and medieval times. One of the oldest examples of the extradition agreements or treaties can be said to be the Chino-Russian agreement that was concluded in 1689 at Nerchinsk. Extradition treaties evolved with the time and society and accordingly certain safeguards or exceptions were included. The period of 1789-1799 saw the French Revolution that was more of a cause for liberty. It is also called the “Age of Enlightenment” because of the fact that several social and political norms were challenged and there was an apprehension of change in the status quo. It is in France, perhaps, that the earliest exception of “political offence” was introduced in the post revolutionary period. Foreigners were given asylum in France under the pretext that there was threat of them being prosecuted for the “cause of liberty”. The exception found its first formal mention in the Belgian extradition treaty of 1833. The term and definition of “political offence” was not complicated during those times and its interpretation was restricted to the crimes including “treason, acts against the security of the state, rebellion and incitement to civil war”. However, with the


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development in society, more crimes started to be included in this definition by somehow linking them to any political issue or act. Since then, the exception of political offense in extradition matters has been a source of constant debate in the international realm. According to Grotius, political offenders were those “who disturbed the peace of the state” (The political offense exception in international extradition, 1980). These crimes in itself that had the element of political character went on to be classified as “pure political crimes” (Political Offenses in the Law and Practice of Extradition, 1933). However, there were certain crimes which when viewed alone do not classify as political crimes but when the circumstances and situations during that time period are considered, they can be easily linked with having a political character. Such crimes acquire the element of political character despite the fact whether they were done in furtherance of any political motive or not. These crimes then subsequently went on to be classified as “relative political offense” (The political offense exception in international extradition, 1980). The jurisprudence of this exception underwent evolution over a period of time and across the countries and has been a subject of international debate because of its myriad interpretations. 3

Jurisprudential Evolution

The exception of political offense required the offender to be a political one since that decided if the offender was to be offered asylum or not. The political offense has been classified into two as explained above: “pure political offense” and “relative political offense”. Pure political offenses are offenses that are directly committed against the state and are not subject to in-depth arguments of interpretation. However, the term “relative political offense” has been an area of heated debate and several scholars have argued over the same. In 1957, the European Convention on Extradition further classified “relative political offense” under Article 3 of the same. (The political offense exception in international extradition, 1980). The classification was “delit complexe” and “delit connexe”. When an act is directed against both, the political order as well as private rights, then the act constitutes “delit complexe”. However, when an act is not directed against the political order but has a close connection with another politically directed act, then such an act constitutes “delit connexe”. Even though none of the extradition arrangements define “political offenses” per se, attempts have been made for the same which eventually lead to formulation of three theories (The political offense exception in international extradition, 1980) under the ambit of “relative political offense”. The theories are as follows: • Political Incidence Test developed by the British courts • Political Objective Test developed by the French courts • Political Motivation Test developed by the Swiss courts These theories via their formulation and interpretation of the term “political offenses” have played a pivotal role in enhancing the jurisprudence behind this term. 3.1

Political Incidence Test developed by the British courts

This theory was developed in the most celebrated English case of 1891: In re Castioni. Castioni was charged with the murder of a Swiss government official during an uprising in


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the Canton of Ticino. There has been a growing unrest and dissatisfaction amongst the citizens and subsequently, Castioni, along with a few fellow citizens attacked and seized the government arsenal. Eventually, they took forcible possession of the municipal palace and established a provincial government. During this process of attack and siege, a government official Luigi Rossi was killed by Castioni. Pursuant to this he escaped to England, where he argued against his extradition stating that his crime had a political character. While deciding on whether his act had a political objective and whether it was done in furtherance of the same, the court took into consideration the definition by John Stuart Mill and rejected it on the ground of it being too narrow. However, Justice Stephen’s definition of political offense was considered and applied. The definition states that the act would classify as a political offense if it was “incidental to and formed a part of political disturbances.” Subsequently, via the application of this definition, Castioni was not surrendered and his crime was termed a “political crime”. However, in other case of In Re Meunier, it was argued whether anarchy can be termed as a political crime or not and the court decided against it, stating that such crimes are directed against the citizens and do not have the element of dissatisfaction or dissent against the existing political circumstances of the state. 3.2

Political Objective Test developed by the French courts

Also known as the injured rights theory, this test has its origin in the French Extradition Law of 1927 and states that extradition must be denied if sought exclusively in furtherance of a political agenda. In Re Giovanni Getti has been a leading case in this aspect. A communist accused of attempted homicide had been granted extradition in this case. The court stated that the political character is not determined by the offender’s motive but from the nature of the rights that it injures. This test excludes “mere motive” as a test and focuses more on the acts affecting the “political organization” of the state. This test is less prone to abuse since it ensures that a crime does not attain a political character solely because of the author’s political intention. 3.3

Political Motivation Test developed by the Swiss courts

The controlling factor under this test is the motive of the political offender. The courts have been determining the nature of a political crime by relying on the motivation of the offender. The Swiss Federal Tribunal in the case of VP Wassilief, propounded three general principles in order to consider an act as a political crime: • The commission of the offense was to aid or ensure the success of a purely political offense, and • That there is a direct nexus between the committed act and pursuit of such a political purpose, and • The domination of the political element over that of the criminal element.


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Developments in the 21st century

There has been a host of literature and scholar commentaries on the exception of political offense up till the 20th century. However, a number of cases in the 21st century have put to question the relevance of having this exception in the modern scenario. There has been a persistent misuse of this exception by various state government and wanted criminals alike. For instance, the 2008 Mumbai attacks were a series of attacks planned by an extremist Islamist terrorist organization Lashkar-e-Taiba. One of the masterminds behind this attack was Sajid Mir alias Majith (Print, 2020). Pakistan’s intelligence agency ISI recently confirmed their presence in the country under the pretext of “asylum”. Another Pakistan’s Jaish-e-Mohammed terrorist Masood Azhar has been held responsible by the U.S. government (Print, 2020) as the man behind the Pulwama attacks, who along with Sajid Mir continues to enjoy “asylum” under high protection of ISI in the country. Another conspirator behind the Mumbai terrorist attacks were David Headley and Tahawwur Rana (PTI, 2020). U.S. denied David Headley’s extradition to Indian subsequent to him turning approver in the case. However, U.S. is still processing India’s extradition request of extraditing Rana to India to be tried for his alleged involvement in the Mumbai terrorist attacks. An investigation by a news agency revealed that despite a pressure created by the U.S. and Indian governments on Pakistan to conduct a trial of the accused, Pakistan remains in denial of the involvement of the militants and continues to offer them protection (Print, 2020). An ISI official went to the extent of stating that “not all militants are enemies of the state” (Rotella, 2010). Pakistan’s convenience of providing effective protection to these convicts can be attributed to its recent developing ideology of Islamic supremacy in the region. Even though the Pakistani government might not agree or adhere to this ideology, however, there are officials who in their individual capacity and power, agree and continue to provide protection to the accused. In this scenario, the accused can quite effectively claim “political asylum” since their act was done in furtherance of dissatisfaction with the Indian government that infringes upon their right to dissent and silences the minority voices of opposition. This can also be said to be in furtherance of the alleged evolving political ideology of the nation. The exception of political asylum has the capacity to help these terrorists get away with the scores of murders they committed on the grounds of “distinct political ideology”, thereby never being put to trial for their alleged involvement. India even sought to extradite Hafiz Muhammad Saeed, Zaki ur Rehman Lakhvi and few others responsible for the 26/11 Mumbai attacks (Jain, 2010) but was yet again met with the same response. Another of the most famous Indian extradition cases involved the case of Vijay Mallya’s extradition. He was a fugitive tycoon, who was accused of defrauding banks to an approximate amount of Rs.9, 000 crore (Singh, 2020). So far he had been able to delay his extradition proceedings by exhausting subsequent available remedies. As of April 2020, the UK High Court rejected Mallya’s plea against his extradition and found him guilty of the fraud allegations (Das, 2020). However, Mallya continues to delay the judicial process by exhausting all his legal remedies. As per recent news sources, Mallya is now been planning to apply for “political asylum” in the UK since he has been a previous Rajya Sabha member (IANS, 2020). Since the interpretation of political offence varies on case-to-case and state-to-state basis; there are chances that Mallya might successfully be able to avail this remedy. Even if not, then at least this might help him stall the judicial procedure for a considerable amount of time yet again (Suri, 2020).


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In the international scenario, Julian Assange sought political asylum at the Ecuadorean embassy in London days after his appeal against extradition to Sweden was rejected. The WikiLeaks founder had been accused of rape and sexual assault of two women in Sweden. However, he is majorly wanted for charges of espionage in the U.S. and his extradition to Sweden would have accelerated the same. There are 18 charges levied against Assange in the United States including the Espionage Act, for conspiracy to gain access into U.S. Military secrets during January 2010 to May 2010 (Sonavane, 2020). Ecuador had clarified that his protection in the Ecuadorian embassy should in no way be deemed as means to interfere or thwart the judicial process. Despite this statement, Ecuador granted him asylum stating he would face human rights violation if he was sent to Sweden (BBC-NEWS, 2012). Ecuador came under the radar of several critics who argued on the irony of Assange seeking asylum in a country especially known for its poor record of free speech. As far as the espionage charges are concerned, it has been argued that Assange’s act was politically motivated. The reason behind it is said to be that he wanted to highlight the human rights violations by the U.S. Military (Perraudin, 2020) in Afghanistan and Iraq. Later, Assange was arrested in London after he was evicted from the Ecuadorian embassy. As of now his lawyers continue to seek asylum in France (Rosman, 2020) stating it to be the “homeland of human rights” and that his extradition would pose a serious threat to the freedom of press and free speech. Another most celebrated case of espionage is that of Edward Snowden. He has been accused of leaking details of secret and extensive U.S. government global surveillance programs in 2013. U.S. since then has declared this whistle-blower as the enemy of state and slapped charges of espionage on him. His actions in 2013 lead to a number of debates that questioned the working of surveillance agencies of the government. Prior to this leak, the general public had been living in the dark since they had no idea about the extent and working of the agencies like National Security Agency (NSA) and its British counter-part Government Communications Headquarters (GCHQ). This whole debacle led to the wider use of encryption technology worldwide. So far Snowden has been living in exile in Russia and is eyeing political asylum in France (Cerulus, 2019) and Germany (Die-Welt, 2019). Even the refugees who sheltered Snowden in Hong Kong had been seeking asylum in Canada (BBCNEWS, 2017). 5

Interpretative Comparison of the Past with the Present

The 1891 case of Castioni saw the birth of the theory of political incidence test. However, if the same principle were to be applied to let’s say the ISIS attacks, then these “alleged extremist terrorists/organizations” are nothing but political activists/ heroes. Their clear dissatisfaction with the governments in Afghanistan, Iraq and Syria would sound reasonable and can be easily construed as having a “political character”. The Castioni case provides for a two-fold requirement. One of the requirements is that of a political revolt or disturbance and the second is that the committed act should be incidental to such revolt or disturbance. The murders, tortures and other acts of human rights violations in the ISIS scenario seem to be well justified according to this test. If the ISIS perpetrators were to be ever brought to trial, then the exception of the political offense is a protective tool in the hands of such people. The perpetrators of the Mumbai terrorist attacks shall also be well protected as per this theory. The acts of the alleged terrorists had been in furtherance of their anti-India agenda. This agenda in itself gives their act, the protective layer of it being classified as a political offense. As far as the acts of Julian Assange and Edward Snowden are concerned, their acts of leaking classified and confidential government information do not per se


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seemed to be per se protected under this theory. Their acts did not cause any threat or disturbance among the masses but however aimed at bringing to light various mal-practices of the government officials and were not incidental to any political scenario of the state. However, as far as Vijay Mallyaâ&#x20AC;&#x2122;s case of financial fraud is concerned, he is least likely to be protected under this theory for the same reasons as those attributed to the case of Snowden and Assange. Therefore, it can be said that this theory is more likely to protect those, who should not be protected and does not protect those who should be protected. Applicability of the political objective test does not help much either. The test clearly states that political offenses are directed towards the government or sovereignty of the state. Its intention is to take into account the rights injured by such acts rather than the presence of a political motive. However, if the act committed is directed against the state sovereignty and at the same time involves mass killing of innocent citizens, will it still continue to be a political offense? The answer is yes since these situations can be fitted under the ambit of delit complexe. The ISIS attacks were both directed against the state sovereignty as well as the citizens. The same is the situation with respect to the Mumbai terrorist attacks. Decision shall have to be made in such a scenario by prioritizing between state sovereignty and human lives. No precedents or opinions have been laid down regarding the same. However, in the case of Snowden and Assange, even though their intentions were more of to bring to light the human rights violations and issues of privacy breach by the government, their acts are more likely to be construed as directed towards the government. This theory again leaves a lot of room for uncertainty and wrongful conviction of the alleged perpetrators. However, the Swiss political motivation test provides some relief in this scenario. Even though this theory focuses on the motive of the offender, it also considers the dominant nature of the crime. It tries to investigate the dominance of the political element over the criminal behavior of the accused. Re-considering the example of ISIS, even though their acts were politically motivated, the dominant nature in that scenario is that of a criminal behavior. Similarly, in the case of Mumbai terrorist attacks, the dominant nature was that of murder and not their political ambition to threaten the sovereignty of the government. Despite being politically motivated, civilians were at the receiving end of their acts rather than the government. Therefore, in such a scenario the perpetrators of the crime get a chance to face trial for their crimes. Similarly, in the cases of Snowden and Assange, the political element can be construed as the dominant nature rather than their criminal behavior and would ensure them adequate and well-deserved protection of the exception. As far as Mallyaâ&#x20AC;&#x2122;s case of financial fraud is concerned, there is no political element in his act and hence the only and dominant element in his act is that of a criminal behavior. Hence he shall not be extended the protection under this exception. Therefore, even though different countries came up with their own theories with respect to the applicability of the exception of political offense, they have their own drawbacks if applied in the modern pretext. The Swiss theory of political motivation test seems to be a relatively better theory to be applied since it is more likely to extend the protection of the exception to the deserving people. This theory has a relatively less possibility of shielding people convicted of terrorist activities, genocide, crimes against humanity and war crimes. Hence, this theory should be the preferred means while interpreting the exception of political offense in a case along with its due consideration of the circumstances of the case.


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Suggestions/Recommendations

Several 20th century scholars suggested alternatives to the exception of political offence. The international scenario has under-went a drastic change since the inception of the exception of political offence in the 19th century until now. Instances like the World War I and II, the Balkan wars, the refugee crisis and other several instances have put basic human rights to risk. At a time when free speech and freedom of press are being curbed, itâ&#x20AC;&#x2122;s time that we re-evaluate the exceptions as well as these guaranteed freedoms. Various scholars have argued in favor of the exception and stated that the suggestion of doing away with the exception should not be considered in order to safeguard the intention of the drafters. Measures of excluding various heinous crimes like that of terrorism from the umbrella of political activism should be put in force. Several other suggested measures include: 6.1

International Court of Terrorism (Extradition and the Political Offense Exception in the Suppression of Terrorism, 1992)

This measure has been suggested, keeping in mind the major problem with the exception of political offense. Thereâ&#x20AC;&#x2122;s a high probability of several terrorists not being tried and availing the protection of this exception. This exception also paves the way for countries to justify their acts of biasness towards a person of any particular nationality. By creating an International Court of Terrorism, it shall help in eliminating the bias and shall also substantially increase the chances of terrorist being justly put to trial. The driving mechanism of such a court should be binding on the states rather than having a mere advisory nature. This shall also help in furthering the intention of a zero-tolerance policy towards terrorism as well as pave the way for cementing a solid foundation of international co-operation. 6.2

International Code of Criminal Procedure (Extradition and the Political Offense Exception in the Suppression of Terrorism, 1992)

Attempts were made to codify the international criminal law in the Rome Statute that came into force in 1998. It established four international core crimes that comprised war crimes, crimes against humanity, genocide and crimes against aggression. Terrorism should be included in this ambit to make sure that people accused of terrorism are unable to take the defense of this exception. By protecting politically motivated terrorism, the exception risks the protection of the very human rights it seeks to preserve. (Extradition as a method of combating international terrorism: A U.S. Perspective, 2002) Furthermore, unlike the Roman statute that is binding and applicable only on the member states, there should be an internationally accepted framework or the development of a new rule of law that prevents the misuse of the exception while at the same time should have a binding effect on all the countries.


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Eliminating the political offense exception altogether (Extradition and the Political Offense Exception in the Suppression of Terrorism, 1992)

The rampant misuse of the exception raises questions over its relevance in the modern scenario. Efforts and agreements have been made to restrict the exception to that of political offenses with a non-violent character. Letâ&#x20AC;&#x2122;s assume that the exception of political offense has been restricted to those with non-violent means. People who try to bring to light human rights violations shall be able to use this exception more viably and the threat to freedom of speech shall be eliminated. Even the threat to freedom of press shall be contained to some extent. This shall help in ameliorating the present scenario with respect to that of terrorism. However, this would also help in extending the umbrella of protection to the people convicted of financial fraud and other people convicted of other similar contractual violations. However, doing away completely with the exception shall risk the very values and notion of liberty and free speech that the exception sought to protect. Therefore, restricting the applicability of the exception is a relatively more feasible option than completely eliminating it altogether. This shall further help solve the interpretative problems that arise while deciding on the applicability of the exception. In its traditional form, the exception was prone to protecting terrorist acts in the name of political activism. However, with the evolution of time, the applicability of the exception needs to be restricted. With human rights violation more rampant now than ever, a clear distinction needs to be made between terrorism and political activism. This shall not only encourage a healthy development of free speech but shall also ensure the use of non-violent means to express and voice dissent and subsequently discouraging violence as a tool for political activism. 7

Conclusions

The international scenario today is considerably different from what it was two centuries ago. Human right violation and crimes committed against it are on its peak with almost every person wanting supremacy of his or her own ethnicity or religion or country. Rampant discrimination round the world has seen a blatant disregard for human lives. Despite coming up with several international agreements and counter-terrorist conventions to combat terrorism, they have been largely ineffective and hence a subsequent failure in their mission to curb terrorism (Extradition as a method of combating international terrorism: A U.S. Perspective, 2002). And at the same time, the judicial system round the world also seems to be failing along with the dwindling faith in the judicial system, for the actual perpetrators of crime are hardly ever brought to justice. During such trying times, there is a need for rigid judicial framework in order to safeguard justice and restore faith in the judicial systems. There are no perfect measures or laws and there are always going to be drawbacks. Searching for idealism in law does not help much either. Therefore, restricting the ambit of the exception of the political offense shall help in considerably reducing its misuse by the criminals and governments alike and shall ensure that they are brought to trial and convicted or released only by the due process of law. Continuous attempts should be made to define the term â&#x20AC;&#x153;political offenseâ&#x20AC;? and rather than giving it an inclusive interpretation its interpretation should be restricted. Furthermore, crimes against humanity, genocide, war crimes and terrorist activities should not be included in the ambit of applicability of this


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exception in extradition matters. These “international crimes” should be kept excluded and the defense of this exception should not be given to potential or convicted criminals. References 1. BBC-NEWS. 2012. BBC NEWS. [Online] August 16, 2012. [Cited: June 19, 2020.] https://www.bbc.com/news/uk-19281492. 2. —. 2017. BBC NEWS. [Online] March 09, 2017. [Cited: June 21, 2020.] https://www.bbc.com/news/world-us-canada-39222655. 3. Cerulus, Laurens. 2019. Politico. politico.edu. [Online] September 16, 2019. [Cited: June 21, 2020.] https://www.politico.eu/article/edward-snowden-would-love-to-get-political-asylumin-france/. 4. Das, Shaswati. 2020. LiveMint. [Online] April 20, 2020. [Cited: June 21, 2020.] https://www.livemint.com/news/india/one-step-closer-to-extradition-uk-court-rejects-vijaymallya-s-plea-11587383435563.html. 5. Die-Welt. 2019. Die-Welt. dw.com. [Online] September 13, 2019. [Cited: June 19, 2020.] https://www.dw.com/en/edward-snowden-still-eying-asylum-in-germany/a-50429478. 6. Extradition and the Political Offense Exception in the Suppression of Terrorism. Peterson, Antje C. 1992. 3, s.l. : Indiana Law Journal, 1992, Vol. 67. 7. Extradition as a method of combating international terrorism: A U.S. Perspective. Lazarus, Wendy. 2002. s.l. : University of St. Andrews, 2002. 8. IANS. 2020. Bangalore Mirror. bangaloremirror.indiatimes. [Online] June 4, 2020. [Cited: June 21, 2020.] https://bangaloremirror.indiatimes.com/news/india/vijay-mallyas-extraditioncould-be-delayed-he-may-seek-political-asylum-say-agencies/articleshow/76193819.cms. 9. Jain, Bharti. 2010. Economic Times. [Online] November 19, 2010. [Cited: June 21, 2020.] https://economictimes.indiatimes.com/news/politics-and-nation/hand-over-saeed-gang-newdelhi-to-tell-islamabad/articleshow/6950911.cms. 10. Perraudin, Frances. 2020. The Guardian Weekly. [Online] February 27, 2020. [Cited: June 19, 2020.] https://www.theguardian.com/media/2020/feb/27/julian-assanges-lawyers-us-fileswere-leaked-for-political-ends. 11. Political Offenses in the Law and Practice of Extradition. Deere, Lora L. 1933. 2, s.l. : Cambridge University Press, 1933, Vol. 27. 12. PTI. 2020. Deccan Herald. [Online] June 27, 2020. [Cited: June 28, 2020.] https://www.deccanherald.com/national/mumbai-attack-convict-david-headley-cannot-be-extradited-to-indiatahawwur-ranafaces-extradition-us-attorney-854327.html. 13. Rosman, Rebecca. 2020. Al Jazeera. [Online] February 21, 2020. [Cited: June 19, 2020.] https://www.aljazeera.com/news/2020/02/assange-lawyers-seek-asylum-france-whistleblower-200221092101008.html. 14. Rotella, Sebastian. 2010. ProPublica. [Online] November 13, 2010. [Cited: June 19, 2020.] https://www.propublica.org/article/the-man-behind-mumbai. 15. Singh, Bhavatosh. 2020. Times Now. [Online] May 28, 2020. [Cited: June 21, 2020.] https://www.timesnownews.com/business-economy/article/the-last-gamble-vijay-mallyamay-seek-political-asylum-cbi-ed-keep-fingers-crossed/598151. 16. Sonavane, Aishwaria. 2020. Republic World. [Online] February 21, 2020. [Cited: June 19, 2020.] https://www.republicworld.com/world-news/rest-of-the-world-news/wikileaks-publisher-julian-assange-to-seek-asylum-in-france.html. 17. Suri, Sanjay. 2020. CNBC. cnbctv18. [Online] June 10, 2020. [Cited: June 21, 2020.] https://www.cnbctv18.com/politics/vijay-mallya-seeks-uk-asylum-extradition-stalled6102601.htm.


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18. The Indian Print. 2020. dailyhunt. [Online] June 28, 2020. [Cited: June 29, 2020.] https://m.dailyhunt.in/news/india/english/the+indian+print-epaper-theindpr/isi+placed+sajid+mir+mastermind+of+26+11+attack+in+pakistan+under+high+level+security+us+report-newsidn194506056#:~:text=WASHINGTON%3A%20While%20the%20US%20has,to%20be%20in%2 0the%. 19. The political offense exception in international extradition. King, Daniel P. 1980. 3, s.l. : Institute of Foreign and Comparative Law, 1980, Vol. 13.


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Analyzing the Viability of ADR in Settling Maritime Boundary Disputes Around the South China Sea Avishikta Chattopadhyay1 1Student,

1

Rajiv Gandhi National University of Law, Punjab avishiktachattopadhyay@rgnul.ac.in

Introduction

Alternative Dispute Resolution grants the assurance of the establishment of a win-win situation. However, there are several considerations which may tantamount to disruption of the resolution process. One of such elements is the imbalance in the bargaining power of the parties. Such a situation is evident in the deliberations of settlement of the maritime boundary disputes around South China Sea. The political thought and the radical geopolitical presence of China creates an imbalance in the bargaining power. The wide differences in the diplomatic relations has created an impasse thus preventing any further improvements. This paper would thus analyse the viability of ADR with respect to maritime boundary disputes around South China Sea. Thus, concluding that the presence of a Super Power disrupts the process of resolution through ADR mechanisms. 1.1

Literature Review

In the book The Art of Rulership: A Study of Ancient Chinese Political thought (Ames, 1994), Rojer T. Ames explains in great detail the development of the ancient Chinese political thought of one king, one kingdom and one party. The foreign powers were supposed to ‘kowtow’(submission) before the King to ensure friendly relations. Similarly, in the article The One That Pervades the All’ in Ancient Chinese Political Thought: The Origins of ‘The Great Unity’ Paradigm ("The One That Pervades the All" in Ancient Chinese Political Thought: The Origins of "The Great Unity" Paradigm, 2000), the author explains the origin of ancient Chinese political thought where the unity in all political forms is given importance. The political thought of oneness presented in the literature deeply influences the contemporary geopolitical stances taken by China. Fisher and Ury in their book Getting to yes explain the disruptions caused by unequal bargaining power in the in the B2B business settlements through negotiations. This model will be used in the paper to portray the disruptions created through unequal bargaining power in the negotiations for settlement of south china Sea dispute. ADR is a thus a sort of kangaroo court explains utilisations for ensuring peaceful settlement of water disputes (Legal Perspective: Alternative Dispute Resolution: A Kangaroo Court, 1997). The literature does not take into account the political dispute settlements and the difference in bargaining power that causes disruptions to the resolution of disputes. Maritime Boundary Disputes, Settlement Processes, and the Law of the Sea (Seoung-Yong et al., 2009) consolidates the maritime disputes in various continents and discusses a wide variety of cases with maritime boundary disputes. Ji Geoxing the author of the article “Sino Japanese Delimitation in East China Sea: Approaches and dispute settlement” has


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mentioned a three-point approach to ensuring better Sino-Japanese relations over the South china Sea. The book also had the six-point strategy given by the author to help in resolving the disputes between China and Japan. The article however fails to consider the disregard and the intentional conventional breaches of China into the East china Sea territorial waters. The author incessantly tries to ensure the importance of dispute resolution as a method is successful solely when both the parties are willing to take part in the process. However, the author does not take into consideration that China through its stances impliedly forcing the other parties to resolve the disputes through ADR by disregarding the jurisdiction of international institutions. Maritime Disputes and International Law: Disputed Waters and Seabed Resources in Asia and Europe (Yiallourides, 2019) has reviewed the disputes in the East China Sea maritime dispute between Japan and China in detail focusing on the resolution of the delimitation dispute. The book comprehensively portrays the importance of third party lead settlement in maritime boundary disputes also providing models to resolve the sovereignty issue over a territory between two parties The article by GU Junfeng (Junfeng) gives a detailed account of the maritime boundary dispute in the South china sea and concludes by stating that South China Sea would soon be regarded as a joint land with no sovereign control. In the article Law of the Sea Dispute Settlement Mechanism (Aceris, 2015), L. Aceris mentions that negotiation has specific advantages in delimitation disputes. Negotiation however is difficult for settlement of dispute in the South China sea because of the problem of difference in bargaining power. Law of sea has been a domain of both the private as well as the public international law. In the public context it is referred to in the interstate relations while in the private domain we talk about maritime law and admiralty law. The author in the article, Protracted maritime boundary disputes and maritime laws (Protracted maritime boundary disputes and maritime laws, 2019) states that most of the maritime disputes pertain to the economic benefits and strategic location of the maritime boundaries with regards to international geopolitics. The disputes also pertain to the baseline and delimitation of territorial sea and the Exclusive Economic Zone (EEZ). The author considers the important location that maritime boundaries have with respect to oil and fish as important economic resources. Edelman L. â&#x20AC;&#x153;Resolving Disputes Without Litigation.â&#x20AC;? Lester Elderman (Resolving Disputes Without Litigation, 1990) explains the concept of partnering which enables the parties to negotiate the terms before the disputes occur. Through a system of partnering and the equitable principle can be applied to ensure that there is proper settlement of dispute and in a peaceful manner. On the other side, K E. Wiegand, in the article Resolution of Border Disputes in the Arabian Gulf (Resolution of Border Disputes in the Arabian Gulf, 2014) explains that ADR is successful in addressing maritime disputes is the example of Kingdom of Saudi Arabia which had taken to Alternative Dispute Resolution for resolving their maritime border disputes. The literature has however failed to take into account the disruptions caused due to imbalance in the bargaining power. Acknowledging the above literature and considering the gap mentioned above the research is conducted. 1.2

Hypothesis

Alternative Dispute Resolution is the most viable option for settlement of maritime boundary and delimitation disputes in the South China Sea.


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Detailed Account of the Maritime and Delimitation Disputes in the South China Sea

The South China Sea is a water-body in East Asia surrounded by Republic of China Taiwan in the north, Peopleâ&#x20AC;&#x2122;s Republic of China located in the north-west, Vietnam in the south west, Malaysia and Brunei in the south and The Philippines covering the eastern part. The South China Sea(SCS) is acclaimed to be surrounded with the greatest ports in the world and is connected to some of the most important maritime trade routes of the world including the Strait of Malacca which is considered to be one of the most busiest routes of the world (Hirst, 2014). The United Nations Conference on Trade and Development (UNCTAD) estimated that a third of global shipping passes through the South China Sea (Chinapower). $5.3 trillion worth of goods transits through the South China Sea annually, with $1.2 trillion of that total accounting for trade with the U.S. (Chinapower) Furthermore about 25% of the global trade occurs through the South China Sea (Spegele, 2014). The south china sea abounds in natural resources such as hydrocarbons, oil and natural gas most of which is unexploited. This region has plenty of fish and other important marine wildlife. Above all the maritime zone is located in one of the most influential diplomatic and geo-political positions. All the advantages combined and the strategic location of the SCS has made it a disputed area. The importance of this region both naturally and geo-politically has made the countries surrounding it want to establish sovereignty over this region. South China Sea was regarded as one of the most significantly affected regions of acts of maritime piracy and armed robbery by the International Maritime Organisation (United Nations Conference on Trade and Development, 2016 p. 93). There are maritime and territorial disputes of the states surrounding the SCS. 2.1

Detailed Account of the Major Disputes Among the Countries Revolving Around the South China Sea

1. The Nine Dash Line Dispute: According to Article 57 of the United Nations Convention on Law of Sea (UNCLOS) the Exclusive Economic Zone (EEZ) of every country extends to 200 nautical miles (United Nations, 1982) from the territorial coast of the country. The nine- dash line dispute is regarding the imaginary maritime claim of China in the SCS published in a map in 1949. China claims the area inside the nine-dash line as its territory and represents it inside its national map. which was invalidated by the June 2016 judgement by the Permanent Court of Arbitration. 2. Creation of artificial islands by China: China has constantly tried to expand its dominance in the region. In the year 2014 China started dredging operations to build artificial islands in the SCS. According to International Maritime Law the countries territorial extent should not extend more than 12 nautical miles in the sea. Through the creation of seven artificial islands (Panda, 2020), Beijing aims to include portions of the SCS into its territory thereby extending territorial as well as maritime extent in the region. What is more concerning is that the Chinese Authority aims at using artificial islands are used for military operations (Poling, 2020). China has created air bases in the islands. Furthermore, several naval operations are conducted by China in and around the islands and the EEZ of the surrounding states.


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3. Sea Area North of Borneo: Also referred to as the Sabah dispute between Philippines and Malaysia. In the year 1968 signed a Congressional Bill aimed at demarcating its territorial sea which considered a part of Malaysia (North Borneo also known as Sabah). The dispute is majorly territorial in nature however, the sea around Sabah also came into consideration during the dispute which reached the International court of Justice. The dispute which lasted for more than sixty years took radical form during 2013 but was subsided with the tripartite cooperation arrangement signed between Indonesia Malaysia and Philippines where the parties promised to set aside the dispute (Meaghan, 2019). 4. Disputes around the South China Sea islands: Three main islands of disputes are the Paracel islands, the Scarborough Shoal and the Spratly Islands. The Spratly islands being the most contentious of the islands in the SCS. The Paracel islands are claimed by China, Vietnam and Taiwan. The Scarborough Shoal is claimed by China, Taiwan and Philippines while the Spratly Islands is claimed by China, Vietnam, Taiwan, Malaysia, Philippines and Brunei. 5. Sea area north of the Natuna Islands: It is a territorial dispute between China and the Indonesia. However, the dispute also includes claim over the maritime area around these islands. In December of 2019 several Chinese shipping vessels entered the EEZ of Indonesia near the Natuna islands. The delimitation dispute in this area is originally between Indonesia and Vietnam. Indonesia considers it a part of its territory but both Vietnam and China have tried to ascertain their position over this region. Several minor territorial and maritime issues have also been revolving around the SCS which include the 2002 case concerning sovereignty over Ligitan and Sipadan islands between Indonesia and Malaysia, the International Court of Justice (ICJ) ruled in favour of Malaysia. However, these smaller cases have been carefully considered and resolved by the respected member states. The major conflict is over Chinaâ&#x20AC;&#x2122;s illegal aggressive over the islands and the maritime resources of the SCS which is envisioned to be resolved through the most apt method of Alternative Dispute Resolution. In order to understand the type of ADR that will be applicable to resolve the maritime border and delimitation dispute in the SCS it is important to understand the mutual relationship that countries harbour. Therefore, the following section enlists the major countries in dispute over the SCS. 2.2

Disputes of Countries on and Around the South China Sea

1. Brunei: The Islamic state at the South-East corner of the SCS is sometimes labelled as the silent claimant (Hart, 2018).The state does not have lofty claims in the maritime region but makes its presence felt. It restricts itself to only 200 nautical miles which is the EEZ according to UNCLOS and a few land features in the SCS including the Loisa Reef. Brunei has preferred to be in friendly terms with China thus strengthening the bilateral trade. China on the other hand is investing heavily in Brunei and initiating several infrastructural activities such as the Brunei-Guangxi Economic Corridor in the year 2014 in the 11th China ASEAN expo (CAEXPO, 2019). Therefore, Brunei is ensuring the safety and growth and is focused on maintaining peace. 2. Peopleâ&#x20AC;&#x2122;s Republic of China (PRC): One of the five permanent members of the Security Council, PRC is one of the biggest players in the dispute of the SCS. Covering 90 percent of the SCS which is nearly 3.5 million square km (Lague, 2012) of the are under its


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imaginary nine-dash line region PRC has been seeking sovereignty over the region for its natural resources and wealth. PRC has relinquished all jurisdictional claims by international organisations and seeks to establish multi-lateral talks to settle the dispute. It carries out frequent military operations and especially naval drills in the EEZ of other states surrounding the SCS. Despite being part of several multi-lateral treaties for maintaining respect for the international conventions such as UNCLOS, China pays no heed and keeps on establishing its sovereignty over the area. The is alleged that it is the Salami slicing tactic of China which it has been following since World War II (Dutta, 2017). Through regular establishment of China’s claim over an area through military and diplomatic and following the divide and rule technique in forming alliances China aims at gaining control over places. 3. Republic of China (ROC/Taiwan): Taiwan also maintains that in pursuant to the international law that is the extent of maritime territory as mentioned in the UNCLOS. After the decision of the Permanent Court of Arbitration in 2016 Taiwan has maintained “Four Principles and Five Actions” to guide Taiwan’s South China Sea policy (Tsai, 2018). However the unambiguous political position of Taiwan and its exclusion from participation in ASEAN creates a problem in its stand over the SCS (Taiwan's South China Sea Policy, 1997). 4. INDONESIA: Indonesia has successively rejected China’s claim over the SCS and states that it has no legal basis. (Chaudhary, 2020) Its main dispute is around the Natuna island where China breaches the norms of the international law. The Indonesian claim that the nine-dash line which was submitted to the United Nations was not proposed by China during the delimitation of the SCS by Indonesia and Malaysia in an agreement in 1969. 5. MALAYSIA: In addition to the 12 nautical mile territorial claim under the UNCLOS Malaysia contends for a continental shelf in the southern part of SCS (United Nations, 2009). 6. PHILLIPINES: Over the nine-dash line in the permanent court of arbitration. seized the Scarborough Shoal from the Philippines in 2012. Philippines approached the Permanent court of Arbitration on 22 January 2013 (PCA-CPA.org, 2016 pp. 11, 28) regarding the imaginary nine-dash line which is considered to be an historic claim to the SCS by China. the Permanent Court of Arbitration ruled in favour of Philippines and banished all claims of China over the maritime territory within the nine-dash line SCS and established the supremacy of the UNCLOS in deciding the maritime extent of a state. 7. VIETNAM: The East Sea issue between VIETNAM and China. Vietnam was suing China for its approach on the South China Sea: Vietnam approached the United Nations against China stating the violation of the EEZ as mandated by the UNCLOS. The 69 th General Debate in the United Nations General Council focused on China’s alleged infiltration in the South China Sea undertaking maritime operations. The disputes have not stopped yet with the Chinese Government playing in the offensive over naval operations by Vietnam within their EEZ (Grossman, 2020). Vietnam is thus creating alliances with various countries in a feat to stand against China. The states individually claim sovereignty over the territorial water and the EEZ of the SCS. In addition to the above China through its nine-dash line limit claims exclusive sovereignty and historic claim over the major portion of the SCS. China further disregards jurisdiction of all the international organisations stating that the it has historical claim over the said span. It is clear that China has been aggressively pursuing its claim over the sovereignty in


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the SCS. In order to clearly understand China’s claims over the SCS it should be understood from the perspective of historic as well as present circumstances. 3

China Exerting its Position in the South China Sea Historically and in the Present Time

Chinese political thought has always focused on one-nation, one emperor and one party. Their concept of absolute sovereignty has been predominant even during their change in political set-up. The Chinese Government has claimed right over SCS historically dating back to the Song Dynasty (Lague, 2012). In the year 1947 China published a map called the Map of South China Sea islands. The map consisted of 11 dashes and surrounded most of the maritime area of SCS. This map was adopted by the Communist part in the year 1949 excluding two dashes granting Gulf of Tonkin to Vietnam. Notably the nine-dash line encompassed almost 80% of the SCS. Tensions arose when in the year 2009 China presented the map to the United Nations stating that China had undisputed sovereign rights over the SCS and its various land features. This stance was objected by Vietnam, Indonesia and Philippines stating that China’s claim as illogical. They relied on the 1982 UNCLOS in which is ratified by China. In addition to the above the states criticised the Chinese for non-publication of the map even during the time when several states around the SCS were creating agreements for delimitation of their maritime territories. China is one of the most established maritime economies of the world in the present day. According to the World Economic forum Shanghai port is the largest port in the world (Routley, 2019). Furthermore, according to the report by the World Shipping Organisation Shanghai is the largest container port in the world which saw an increase of 71% in the last decade. Furthermore, ten among the top twenty container ports in the world belong to China alone (World Shipping Council). This shows the importance China gives to maritime trade. The recent diplomatic stances by China in several countries further prove the fact. The manipulative capture of the Hambantota Port in Sri-Lanka and the infamous One Belt One Road (OBOR) initiative are all part of China’s Big Plan of creating a monopoly in the Maritime Trade. 60% (Chinapower) of China’s trade is through the maritime route and therefore SCS playing an important part in it. China is trying to exert its presence in the SCS through a number of military and diplomatic stances. Despite all aggressive stances of China in the South China Sea, the states in and around the SCS have tried to maintain peace and stability through a number of agreements and treaties including the Code of Conduct of the states surrounding the SCS. The following section describes the recent such initiatives taken by the members to ensure peace and tranquillity in the region and the possible ways in which the disputes can be settled in between the members regarding the SCS. 4

Initiative to Maintain Peace and Tranquility in the Region and the Most Viable Method of Resolution of Delimitation Dispute in the South China Sea

The disputes surrounding the South China Sea can be divided into two broad categories which include claim over the islands and island features and the second being maritime disputes. It is logical to think that the best way to solve the disputes around South china Sea is through the delimitation of maritime boundaries by using the “equitable principle” of


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international maritime law (Wang). However, there are several problems which arise which dividing establishing the equitable principle. The most prominent problem is the presence of two dominant international players in the SCS that is The People’s Republic of China and the United States of America. Other factors including China’s blatant disregard to the international treaties and conventions and the presence of soft laws in the maritime regime. For several years China’s claim was unnoticed by the international community. The countries around SCS do not consider themselves to be powerful enough to tackle China in a standoff which has further aggravated the situation. The ASEAN members along with China have been trying to ensue peace and tranquillity in the SCS region. In the year 2002 the ASEAN members ratified the Declaration on the Conduct of Parties in the South China Sea (DOC) (ASEAN). This is a multi-lateral treaty for ensuring friendly relations and maintaining respect for international principles and international treaties and conventions. In 2016 the four-point approach in the ASEAN China encouraged the use of dialogue to solve the problem in the SCS. It was seen as a Chinese tactic to prevent the dispute from going to any international forum. The Plan of Action (POA) (ASEAN, 2015) which was drafted to ensure that peace is maintained between ASEAN and China was for 4 years till 2020. Clause 1.5 of the POA mentioned the maintenance and effective implementation of the Declaration for Conduct of the Parties in the South China Sea. Furthermore, this clause required the parties to ensure respect international maritime law and its recognised principles in the UNCLOS for the resolution of disputes. However, in the same year China disregarded the authority and the jurisdiction of the international organisations in deciding the matter of the SCS. The members of the ASEAN had drawn up a non-binding Code of Conduct of the Parties in the dispute of the South China Sea in 2017 for maintaining amongst other things peace and security in and around the area of south china sea. The Code which was majorly drafted by 11 ASEAN members which related to China’s assertive nature over the South China sea and establishing its sovereignty in the 2002. 4.1

Factors which Prevent the Conclusion of Peaceful Settlement of the Disputes in the South China Sea

There are several positions which prevent peace from prevailing in this region. The following shows the various external and internal factors which prevent the countries from establishment of peace in the region. 1. China’s hard stance and blatant disregard to international law and international conventions has created problems in resolving the SCS dispute. China constantly seeks to resolve the dispute through bilateral talks and settlements. China had rejected the jurisdiction of the International Court of Arbitration when it received a case by the Philippines authority to settle the dispute. It is an accepted fact that none of the countries in south-east Asia have the capability or the power to stand against China in its claim over the South China Sea (Puspitawati, et al., 2020). Apart from the constant disregard for international conventions the Chinese government has several provocations at various levels. China constantly sends paramilitary petrol vessels, fishing ships in the EEZ of other countries backed by coast guards. The most striking of which is the testing of missiles in one of the artificial islands built by it (Reuters, 2019). Furthermore, China has built several artificial islands which causes severe environmental problems and


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degradation of the marine wildlife. Using the island for military purposes is yet another radical stance by the members 2. Interference of the United States of America (US): The US has been openly critical about China’s claim over the SCS and condemns it to be coercive in nature. In 2020 US deliberately send its naval vessel within territorial waters of the Spartly archipelago’s Fiery Cross Reef (Johnson, 2020) which is a disputed territory of the SCS. Additionally, US is one of the most important strategic and diplomatic partners of Vietnam. The freedom of Passage operations (FONOP) of US have been constantly on the rise in the SCS. In its four-point approach (Fravel, 2014) to the dispute at the SCS US has maintained a diplomatic fervour. During those operations, they receive constant radio messages from Chinese authorities that they are violating Chinese territory (Martinez, 2019). According to this approach US mentions that it holds utter respect for each independent member and maintains that the dispute should be resolved amongst the ASEAN members with upholding practices in customary international law. 3. US and China Standoff over the region: The Chinese president, Xi Jinping, has vowed to “resolutely defend” his country’s interests in the region (Phillips, et al., 2016) while speaking with the Barack Obama in a nuclear summit. China’s foreign minister has spoken with US secretary of state John Kerry by telephone ahead of a key international court ruling on China’s South China Sea claims and warned Washington against moves that infringe on China’s sovereignty (Brunnsotrm, et al., 2016). 4. The difference in the bargaining power of the states around the SCS. China is one of the most powerful countries of the world and one of the most important economies of the world. The military and diplomatic position of China cannot be compared with any of the other states. There is inequality in the bargaining power of the members states which create a disequilibrium in the process of bilateral talks. In addition to the above Power-play by major economies and intrusion to the disputes play a major role in preventing the peaceful settlement of disputes. Given the circumstances of China’s dominance in the area the help given by other economies to weaker countries cannot be completely criticized. Taking cognizance of all the problems mentioned above the following section talks of the most appropriate method to be adopted to resolve the SCS dispute. 4.2

Selection of the Most Viable Alternative Method for Resolving the SCS Dispute

There are various factors which will influence the selection of the type of alternative dispute resolution method which would be viable for the amelioration and resolution of the dispute. There are several parameters which have to be analysed in order to understand the best method to avail in that particular case. Since 1946, at least 40 % of intrastate conflicts have been linked to natural resources (Kron, et al., 2016). In the dispute revolving the SCS has many aspects attached to it. All the countries around the SCS claim their maritime jurisdiction. However, China seeks to establish sovereignty in a greater area encompassed in the nine-dash line. It is a maritime dispute for which UNCLOS has several given methods of dispute resolution. Article 284 (Part XV) of UNCLOS Convention provides for the use of conciliation as a way of resolving maritime boundary disputes. Furthermore, Article 287(Part XV) of UNCLOS provides that the


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parties can through contract utilise ADR processes for resolving disputes. The international regime has already provided for Alternative Dispute Resolution methods for solving maritime boundary disputes. The geographic location of SCS is such that it will affect the entire worldâ&#x20AC;&#x2122;s maritime trade. If China is given sovereignty over then it can result in establishment of monopoly of China in international maritime trade. Furthermore, one of the most important trading routesThe Strait of Malacca is directly attached to the SCS. The sovereignty of China over that region would mean the extension of its sovereignty in the nearby areas as well. It would lead to unfair competition and lead to monopoly in maritime trade. Article 33 of the Charter of United Nations enlists the types of Alternative Dispute Resolution methods to resolve disputes between states. Arbitration The Philippines tried to resolve the dispute through the Permanent Court of Arbitration but it was unsuccessful because of Chinaâ&#x20AC;&#x2122;s claim that the international court had no jurisdiction in the matter of the SCS. The resolution of dispute through arbitration is generally through legal framework. Arbitration does not digress from the path of law. It creates a mutual understanding based on the prevailing framework. However, in the maritime dispute of the SCS it is not possible to be resolved through international legal framework. International law in itself is sometimes treated as soft law because it is not binging. Therefore, arbitration would not be suitable to resolve this maritime dispute. Through there are several maritime disputes that are resolved through arbitration such as the long dispute over the Bay of Bengal between India and Bangladesh was solved in the Permanent Court of Arbitration (PCA). The PCA ruled in favour of Bangladesh giving it four-fifths of an area of 9,700 sq. miles (Al Jazeera America, 2014). The PCA was approached by the Bangladesh authorities for delimitation of their maritime boundaries to bestow legal rights over the Bay of Bengal. The decision was taken positively by both India and Bangladesh. The counterparts suggested that it was the beginning of establishing the long-standing friendship between the two countries. The diplomats ensured that both Bangladesh and India would further their bi-lateral good relations (Harun, 2014). The major difference between the dispute between India and Bangladesh and SCS dispute is that both the countries have equal respect for international law and multi-lateral treaties and both the countries wanted to settle the dispute in order to establish friendly relations. Negotiation Negotiation is a method where the parties deliberate over a dispute on their own. This sort of alternative dispute resolution is devoid of any legal due process to be followed and also devoid of any statutory requirements. Negotiation is only possible where the parties to a dispute are willing to compromise in order to resolve the dispute. In the present situation Negotiation will not be successful because of several reasons. China with a greater bargaining power will use it to ensure that it receives a greater share of the deal and emerges victorious. The principle of Alternative Dispute Resolution is based on a win-win situation where both the parties are satisfied with the result of the solution thus reached. The inclusion of China will defeat the principles on which ADR is based on because China is better equipped than all the other countries seeking territory around the SCS. Furthermore, in the present instance it is possible that a situation of impasse will be reached where there is no further development in the negotiations. Therefore negation will not be a suitable method for resolution of dispute in the current situation.


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Bilateral negotiations were majorly used to resolve the dispute in the Arabian Gulf (Wiegand). It was majorly possible because of the same cultural ties and understanding between the member states. Another important aspect which made the negotiations easier is the relevance of Islamic Law in the region furthered by Saudi Arabia. Mediation K. Holsti in his paper had examined 77 major international conflicts between 1919 and 1965 and found that in 49 of these (or 64 percent) there was some form of mediation (Resolving International Conflict: A Taxonomy of Behaviour and Some Figures on Procedure, 1966) and it is by far the most used method to resolve violent disputes (Third-Party Mediation of Interstate Conflicts: Actors, Strategies, Selection, and Bias, 2014). Mediation is the process of resolution of disputes through negotiation facilitated by a third party. There are several examples of successful mediation with the help of third parties which are mutually agreed. Examples are Vatican which successfully mediated a territorial and maritime dispute over Cape Horn and the Beagle Channel Islands, disputed between Argentina and Chile (Mediation in Territorial, Maritime and River Disputes, 2014). In the present dispute mediation would be the most suitable method for resolution because it negates the differences in the bargaining power between the states. One of the major advantages of mediation in resolving the SCS dispute is that the differences in culture is almost negated. Mediation helps parties reach a common ground based on the Zone of Possible Agreement (ZOPA). The states around the SCS can come to a consensus either by delimitation of their maritime zones or by distributing the functions one can reach in a consensus. 5

Conclusions

The disputes over the SCS are long-standing and have historical roots. The problems are further aggravated owing to power-play of the strong economies and the smaller states acceding to the Big powers. There is currently an impasse over the disputes in SCS because of the non-compliance of international legal framework by states. In addition to that Beijing is equipping the SCS to be its military base. Furthermore, China is constantly breaching territorial water limits of several countries around the SCS. This is increasing the tensions in the region. It is therefore extremely essential that the dispute over the SCS is resolved so that all the states can best utilise the resources that SCS has to provide. Considering all the above options it is contended that Mediation is the best method for resolution of dispute in the SCS. Mediation is usually suitable for violent disputes where there persist strained relations between the members. All the members in a dispute would be satisfied with the result if a third party is given the power to facilitate the resolution of the dispute. Thus, the hypothesis holds true. However, it holds true only to the extent that the mode of Dispute Resolution is Mediation. 6

Recommendations

There are several problems for the resolution of the disputes around the SCS which include the power struggle among the surrounding states, the greater bargaining power of the China, the interference of USA and Japan in the dispute and the disregard for international


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law showcased through non-obligation to the bi-lateral and multi-lateral treaties. However, listed below are the plausible several ways for peaceful settlement of the disputes around the SCS. • Creation of an organisation which would recommend policies for the proper administration of the SCS: All the states should be equally represented in the organisation. The organisation would be entrusted with the work of surveying the interest of each of the states in the SCS and formulating policies to ensure that all the interests of the states are meted. If there is any conflict of interest between any party the conflict would be resolved through voting of all the members of the organisation. Creating such an organisation would ensure that disputes are prevented in the present as well as in the future. • The creation of an organisation would ensure that there is lasting peace and development in the region. However, organisational method for mitigating disputes is sometimes difficult when there is an imbalance in the power of the members. Then it would render the organisation useless. Therefore, the next best option is to solve the individual disputes through ADR preferably mediation as is discussed in the preceding paragraphs. Mediation with the help of a neutral third-party country is preferred in the present circumstance. The choice of the third party should be such that the parties have friendly relations with and one to whose authority none of the parties have any problem. The thirdparty country would ensure that good relationship is maintained between the parties. • One of the important aspects of ADR in general and mediation in particular is that it does not follow any particular legal framework. However, in the present case the nonpresence of any legal framework to resolve disputes can be detrimental to the resolution process because the parties may not concede to the agreement after the initial resolution. However, if this problem arises then the states can try to resolve their disputes by other ADR methods such as Co-Arb or even Negotiation. • In Conciliation- Arbitration the process is legally defined and therefore the states can take action against each other for non-compliance in International courts. The single important advantage of negotiation in the present case would be that there would be no third-party interference and the parties can freely come into an agreement satisfying the requirement of each country. However, given the several negative aspects of negotiation mentioned above the parties should not indulge in talks over negotiation. The above recommendations are not restrictive and not exhaustive. There are several other ways in which the SCS dispute can be solved provided the parties intend to resolve the same. The intention of the parties is of paramount importance in resolving long-standing disputes. References 1. "The One That Pervades the All" in Ancient Chinese Political Thought: The Origins of "The Great Unity" Paradigm. Pines, Yuri. 2000. 4/5, 2000, T'oung Pao, Second Series, Vol. 86, pp. 280-324. 2. Aceris, L. 2015. Law of the Sea Dispute Settlement Mechanism. International Arbitration Attorney Network. [Online] International Arbitration Attorney Network, 2015. https://www.international-arbitration-attorney.com/law-of-the-sea-dispute-settlement-mechanism.


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3. Al Jazeera America. 2014. UN rules in favor of Bangladesh in sea border dispute with India. [Online] July 8, 2014. http://aJmerica.aljazeera.com/articles/2014/7/8/bangladesh-indiadispute.html. 4. Ames, Rojer T. 1994. The Art of Rulership: A Study of Ancient Chinese Political Thought. 1994. 5. ASEAN. Declaration on the Conduct of Parties in the South China Sea. ASEAN. [Online] https://asean.org/?static_post=declaration-on-the-conduct-of-parties-in-the-south-china-sea2. 6. —. 2015. Plan of Action to Implement the Joint Declaration on ASEAN-China Strategic Partnership for Peace and Prosperity (2016-2020). ASEAN. [Online] 2015. https://www.asean.org/storage/images/2015/November/27th-summit/ASEANChina%20POA%20%202016-2020.pdf. 7. Brunnsotrm, David and Blanchard, Ben. 2016. Beijing warns U.S. on sovereignty ahead of South China Sea ruling. Reuters. [Online] July 7, 2016. https://www.reuters.com/article/us-southchinasea-china-kerry-idUSKCN0ZM2GU. 8. CAEXPO. 2019. Open a Vast World of Cooperation between Brunei & China. CAEXPO. [Online] September 19, 2019. http://eng.caexpo.org/index.php?m=content&c=index&a=show&catid=10106&id=209242/. 9. Chaudhary, D R. 2020. Indonesia stands firm against Chinese claims in South China Sea region. Economic Times. [Online] January 6, 2020. https://economictimes.indiatimes.com/news/defence/indonesia-stands-firm-against-chinese-claims-in-south-china-sea-region/articleshow/73122584.cms?from=mdr. 10. Chinapower. How much trade transits the South China Sea? CSIS.org. [Online] [Cited: May 10, 2020.] https://chinapower.csis.org/much-trade-transits-south-china-sea/#easy-footnote-bottom-1-3073. 11. Dutta, P K. 2017. What is China's salami slicing tactic that Army chief Bipin Rawat talked about? [Online] September 7, 2017. https://www.indiatoday.in/india/story/doklam-china-salami-slicing-army-chief-general-bipin-rawat-1039864-2017-09-07. 12. Fravel, M Taylor. 2014. Policy Report: U.S. Policy Towards the Disputes in the South China Sea Since 1995. s.l. : S Rajaratnam School of International Studies, Nanyang Technological University, 2014. 13. Grossman, Derek. 2020. Reviewing Vietnam’s ‘Struggle’ Options in the South China Sea: What are Hanoi’s options to push back on Beijing? The Diplomat. [Online] May 2020. https://thediplomat.com/2020/05/reviewing-vietnams-struggle-options-in-the-south-china-sea/. 14. Hart, Micheal. 2018. Brunei Abandons South China Sea Claim for Chinese Finance. Geopolitical Monitor. [Online] April 4, 2018. https://www.geopoliticalmonitor.com/brunei-abandonssouth-china-sea-claim-for-chinese-finance/. 15. Harun, Habib. 2014. Bangladesh wins maritime dispute with India. The Hindu. [Online] July 9, 2014. https://www.thehindu.com/news/national/bangladesh-wins-maritime-dispute-with-india/article6191797.ece. 16. Hirst, T. 2014. The world’s most important trade route. World Economic Forum. [Online] World Economic Forum, May 21, 2014. https://www.weforum.org/agenda/2014/05/worldmost-important-trade-route/. 17. Johnson, Jesse. 2020. U.S. Navy sails warship near disputed islands in South China Sea for first time in 2020. Japan Times. [Online] January 28, 2020. https://www.japantimes.co.jp/news/2020/01/28/asia-pacific/us-navy-warship-disputed-islands-south-china-seafirst-2020/#.Xr5zEmgzY2w. 18. Junfeng, G U. Dispute Resolution in the South China Sea: from “Joint Development” to “Joint Protection”. [Online] https://warwick.ac.uk/fac/soc/law/research/clusters/international/devconf/participants/papers/gu_-_dispute_resolution_in_the_south_china_sea.pdf.


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19. Kron, Amanda and Jenson, David. 2016. From curse to opportunity: Mediation of natural resource conflicts. Völkerrechtsblog. [Online] July 13, 2016. 20. Lague, D. 2012. Analysis: China's nine-dashed line in South China Sea. Reuters. [Online] May 25, 2012. https://www.reuters.com/article/us-china-sea-boundary-idUSBRE84O07520120525. 21. Lague, David. 2012. Analysis: China's nine-dashed line in South China Sea. Reuters. [Online] May 25, 2012. https://www.reuters.com/article/us-china-sea-boundaryidUSBRE84O07520120525. 22. Legal Perspective: Alternative Dispute Resolution: A Kangaroo Court. Hornreich, M. 1997. 11, s.l. : JSTOR, 1997, Water Environment & Technology, Vol. 9, pp. 88-88. 23. Martinez, Luis. 2019. Why the US Navy sails past disputed artificial islands claimed by China. ABC News. [Online] May 6, 2019. https://abcnews.go.com/Politics/us-navy-sails-past-disputed-artificial-islands-claimed/story?id=60993256. 24. Meaghan, Tobin. 2019. Explained: what’s behind the revived dispute between Philippines and Malaysia over Sabah? South China Morning Post. [Online] September 9, 2019. https://www.scmp.com/week-asia/explained/article/3026422/explained-whats-behind-revived-dispute-between-philippines-and. 25. Mediation in Territorial, Maritime and River Disputes. Wiegand, Krista. 2014. 2014, International Negotiation, Vol. 19, pp. 343-370. 26. Panda, A. 2020. Are China’s South China Sea Artificial Islands Militarily Significant and Useful? The Diplomat. [Online] January 15, 2020. https://thediplomat.com/2020/01/are-chinas-southchina-sea-artificial-islands-militarily-significant-and-useful. 27. PCA-CPA.org. 2016. The Republic of The Philippines And the People’s Republic of China, PCA Case No. 2013-19. PCA-CPA.prg. [Online] 2016. https://docs.pca-cpa.org/2016/07/PH-CN20160712-Award.pdf. 28. Phillips, T and Holmes, O. 2016. South China Sea dispute: What You Need to Know About the Hague Court Ruling. The Guardian. [Online] July 12, 2016. https://www.theguardian.com/news/2016/jul/12/south-china-sea-dispute-what-you-need-to-know-about-the-haguecourt-ruling. 29. Poling, G. 2020. The Conventional Wisdom on China's Island Bases is Dangerously Wrong. War on the Rocks. [Online] January 10, 2020. https://warontherocks.com/2020/01/the-conventional-wisdom-on-chinas-island-bases-is-dangerously-wrong. 30. Protracted maritime boundary disputes and maritime laws. Hasan, Md. M. 2019. 2019, Journal of International Maritime Safety, Environmental Affairs, and Shipping, Vol. 2. 31. Puspitawati, Dhiana and Rusli, M Hazmi Mohd. 2020. Territorial tussle over South China Sea. The Jakarta Post. [Online] January 14, 2020. https://www.thejakartapost.com/academia/2020/01/14/territorial-tussle-over-south-china-sea.html. 32. Resolution of Border Disputes in the Arabian Gulf. Wiegand, K E. 2014. 1, 2014, The Journal of Territorial and Maritime Studies, Vol. 1, pp. 33-48. 33. Resolving Disputes Without Litigation. Elderman, Lester. 1990. 536, 1990, The Military Engineer, Vol. 82, pp. 20-24. 34. Resolving International Conflict: A Taxonomy of Behaviour and Some Figures on Procedure. Holsti, K. 1966. 3, 1966, Journal of Conflict Resolution, Vol. 10, pp. 272-296. 35. Reuters. 2019. Pentagon: China Missile Test in South China Sea 'Disturbing'. Reuters. [Online] July 2, 2019. https://www.voanews.com/east-asia-pacific/pentagon-china-missile-test-southchina-sea-disturbing. 36. Routley, Nick. 2019. Here are the 20 busiest ports on the planet. World Economic Forum. [Online] February 5, 2019. https://www.weforum.org/agenda/2019/02/visualizing-theworld-s-busiest-ports. 37. Seoung-Yong et al. 2009. Maritime Boundary Disputes, Settlement Processes, and the Law of the Sea. s.l. : Brill Nijhoff, 2009.


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38. Spegele, B. 2014. Competing Stakes Hamper Development of South China Sea Rig Standoff Just One Example of Interlocking Interests in Troubled Waters. The Wall Street Journal. [Online] May 13, 2014. https://www.wsj.com/articles/competing-stakes-hamper-development-of-southchina-sea-1399996465. 39. Taiwan's South China Sea Policy. Lin, Cheng-yi. 1997. 4, 1997, Asian Survey, Vol. 37, pp. 323339. 40. Third-Party Mediation of Interstate Conflicts: Actors, Strategies, Selection, and Bias. Gartner, Scott Sigmund. 2014. 2014, Arbitration Law Review, Vol. 6. 41. Tsai, C. 2018. Taiwan's South China Sea Policy Evolution. Asia Maritime Transparency Initiative. [Online] April 12, 2018. https://amti.csis.org/taiwan-scs-policy-evolution/. 42. United Nations Conference on Trade and Development. 2016. Review of Maritime Transport. [Online] 2016. https://unctad.org/en/PublicationsLibrary/rmt2016_en.pdf. 43. United Nations. 2009. Executive Summary, Joint [partial] Submission by Malaysia and Viet Nam to the Commission on the Limits of the Continental Shelf in the southern part of the South China Sea. United Nations. [Online] May 6, 2009. http://www.un.org/depts/los/clcs_new/submissions_files/submission_mysvnm_33_2009.htm. 44. â&#x20AC;&#x201D;. 1982. United Nations Convention on the Law of the Sea, Article 57 (1833 U.N.T.S. 397). 1982. 45. Wang, Kuan-Hsiung. Peaceful Settlement of Disputes in the South China Sea through Fisheries Resources Cooperation and Management. Core.ac.uk. [Online] https://core.ac.uk/download/pdf/56360619.pdf. 46. Wiegand, Krista E. Resolution of Border Disputes in the Arabian Gulf. [Online] 47. World Shipping Council. Top 50 World Container Ports. World Shipping Council. [Online] http://www.worldshipping.org/about-the-industry/global-trade/top-50-world-containerports. 48. Yiallourides, Constantinos. 2019. Maritime Disputes and International Law: Disputed Waters and Seabed Resources in Asia and Europe. 2019.


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Doctrine of Clausula Rebus Sic Stantibus in International Law and its Relevance in the Contemporary World Pragya Sharma1 1Student,

1

Institute of Law, Nirma University, Gujarat 16bal039@nirmauni.ac.in

Introduction

Buried behind most pervasive international agreements, and more often than not overlooked by scholars, are terms that reckon into question international law’s unambiguous instruction that direct states must either comply with treaties or collaborate in adjust them. Such conditions, known as denunciation or withdrawal clause, permit a state to leave from a valid and in effect treaty that the state had erstwhile ratified. The framework and process of treaty exit clauses were long unseen by most scholars and political scientists (McNair, 1961 p. 510). Over the preceding decade, that hush has been broken as commentators in both fields have dedicated new interest to the design and use of global agreements in general and treaty elasticity mechanisms in particular. Essentially, an “exit clause” creates a legal, open apparatus for states to terminate its treaty requirements or extract from membership in an interstate treaty and hidden in the back of most international agreements are these clauses that describe procedures for the treaty parties to end their relationship. This article has attempted to analyze the diverse mechanisms that States employ to terminate their treaty-based dealings, which includes express suspension, withdrawal, and denunciation provisions and the default rules provided by the authority of Vienna Convention on the Law of Treaties (1969) by using these exit causes amongst other mechanisms. The author tried to argue that ‘exit’ clauses in fact help States to alleviate the qualms that are prevalent to such international contracts and dealings. This article shall attempt to analyse the under – explored trend of unilateral exit from international accords and how denunciation and risk of withdrawal from treaty obligations have become more relevant in the wake of the US withdrawal from the Paris Agreement and Covid-19. 2

The Principles of Law of Treaties and its Contemporary Understanding

“One can no longer speak of the existence of the existence of the treaty as a juridical act; it remains without doubt as a historical fact, but that in itself is another thing!” Anzilotti (Gidel, 1929 p. 440) With the human race still divided into autonomous states and possessed of no institutions for all-inclusive regulation of trans-nation security and interest, treaties are progressively escalating in number and significance as an imperfect but an essential alternative for such instructions. Through multiple treaties and conventions, the global community will establish extensively acknowledged standards of state performance in general interest; and many


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worldwide agreements are completed for the intention of the regulation of relationships between states through contractual bonds and reciprocal natures amidst them (Sinha, 1966). A treaty is made because two or more states have a common or mutual interest in establishing a new relationship or modifying an existing one (Lissitzyn, 1966 p. 8). Every public international organization is based on treaties or convention entered into by States which establish it (Fitzmaurice, 1956). It is therefore absolutely imperative that the founders of an international organisation, when drafting the document, consider whether to permit or forbid withdrawal from the same since the international legal system is grounded on a fundamental principle: Pacta Sunt Servanda – treaties must be obeyed (Article 26, Vienna Convention on the Law of Treaties (United Nations, 1969)). States, or more precisely the government officials who represent their interests during diplomatic negotiating conferences, are masters of their treaty commitments. A state can’t be coerced to accept a treaty without its consent, nor can it be obligated to join an inter-governmental organization in opposition to its will. Once a state has entered a treaty and has effectively shepherded its effect through ratification and state approval procedure, it must observe its bona fide treaty obligations. Clausula Rebus Sic Stantibus (Latin for "things thus standing"), is the international law principle which permits for a treaty to become ineffectual because of an elemental change in the state of affairs and/or conditions. In public international law this principle essentially serves an "escape clause" to the general rule of Pacta Sunt Servanda (promises must be kept) (Poonja, 1977 p. 28). International law however, takes a dim view of the obstructions to this Meta norm of treaty adherence. Assertions of invalidity, changed environment and other exculpatory doctrines are very narrowly interpreted, construing unilateral departures as digressions from treaties. In the events, if there is an undercurrent in the political scenario, or national preferences that might make compliance to a treaty burdensome or render its terms and conditions obsolete, international law directs states to abstain from unilateral action in favour of mediation with their corresponding treaty counterparts (Exiting Treaties, 2005 pp. 15791648). The plausible outcomes of such concerted efforts are restrained which range from temporary suspension of the treaty, to amendments of its conditions, to even abrogation from the agreements (David, 1975 pp. 159-202). Buried behind most pervasive international agreements, and more often than not overlooked by scholars, are terms and conditions that reckon into question international law’s ambiguous instructions that regulate termination of treaties. Such conditions, known as denunciation or withdrawal clauses, permit a state to leave from a valid treaty that the state had itself erstwhile ratified( as per Article 70(1) VCLT (United Nations, 1969)). Essentially, an “exit clause” that creates a legal option for states to terminate its treaty requirements or extract from membership. These ‘exit’ clauses share a quality: they sanction one treaty member acting unilaterally or all treaty parties acting communally to end their commitments under an international contract (Exiting Treaties, 2005). 3

Rethinking

Termination,

Withdrawal

and

Denunciation

vis-à-vis

International Treaties An old proverb says that no one likes to talk about divorce before a wedding. However, that exactly what States do when they contract new treaties. Obscured in the back of so many international agreements is fine print laying down procedures for the involved treaty parties to terminate their relationship. Additionally, no fewer than thirteen articles of the 1969 Vienna Convention on the Law of Treaties (VCLT 1969) comprise of termination,


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denunciation, or withdrawal rules that are implementable when States do not discuss treaty particular rules on these subject matters10 (Gomaa, 1996 pp. 167-8). It would be well to commence with a description of key terms. Denunciation and withdrawal are often used interchangeably to explain a unilateral act through which a State that is a party to a treaty concludes its membership in that treaty (Aust, 2010 p. 93). In the case of multilateral agreements, denunciation or withdrawal mostly won’t affect the treaty’s continuance in force for the remaining parties. In case of bilateral agreements, in opposition, denunciation or withdrawal by either party results in the termination of the treaty for both parties. The end that is termination of a multilateral agreement exists when the treaty stops to exist for all states parties involved. The initial principle of State consent governs the design and operation of all treaty exit provisions. At the discussion and debating stage, State representatives have liberty to reign and choose the substantive and procedural regulations that will administer and oversee the future termination of their relationships.11 Unilateral exit endeavors that do not meet the terms of these situational conditions or limitations shall be rendered unsuccessful. A State that stops such performance after such an endeavor shall remain a party to the treaty, insofar as one that is in violation and contravention of its duties and requirements (Exiting Treaties, 2005 pp. 1579, 1582). Nevertheless, the treaty parties may relinquish these situational conditions or limitations and allow unilateral withdrawal, or terminate the treaty, ‘at any time by consent of all the parties after a unanimous vote from the other contracting parties.’12 In summation, States are the undeniable managers of treaty exits. They use this authority to bargain a miscellaneous range of termination, denunciation, and withdrawal clauses and to invoke those provisions in a broad multiplicity of conditions. However, the question is what happens to treaties with no clause for termination, denunciation, or withdrawal? The most imperative—and the most contentious—of these exit default policies is Article 56(1) of the VCLT 1969, which provides that a treaty that includes no scope for termination, denunciation, or withdrawal ‘is not subject to denunciation or withdrawal except: (a) it is recognized that the parties anticipated to acknowledge the possibility of denunciation or withdrawal; or (b) a right of denunciation or withdrawal may be implied by the character of the treaty’.13 Article 56(2), necessitates twelve months’ notice previous to a withdrawal or denunciation.14 This article highlights an uncomfortable conciliation among the members of the International Law Commission (ILC) as to whether States may exit from treaties that do not include an express denunciation or withdrawal provision. 10

Please refer to Articles 42–5, 54–6, 65–8, 70–1 of the Vienna Convention on the Law of Treaties (United Nations, 1969).

Please refer to the Art 54(A) of the Vienna Convention on the Law of Treaties (United Nations, 1969). 11

Please refer to the Art 54(B) of the Vienna Convention on the Law of Treaties (United Nations, 1969). 12

Please refer to the Art 56 (1) of the Vienna Convention on the Law of Treaties (United Nations, 1969). 13

Please refer to the Art 56(2) of the Vienna Convention on the Law of Treaties (United Nations, 1969). 14


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In his 1957 account to the ILC, Sir Gerald Fitzmaurice wrote that such treaties should be understood to be of ‘indefinite duration, and only terminable by reciprocal agreement on the part of all the parties’ (Fitzmaurice, 1957 pp. 16, 22). Fitzmaurice recognized, however, the likelihood of several exceptions. 4

General rule of pacta sunt servanda and its exceptions with regards to treaty obligations under VCLT, 1969

Article 62 of the Vienna Convention on the law of treaties (concluded at Vienna on May 23, 1969) declares that “1. A elementary change of circumstances which has taken place with regard to those existing at the time of the winding up of a treaty, and which was not predicted by the parties, may not be invoked as a basis for ] withdrawing from the treaty except: (a) The existence of those conditions comprise an important and elemental grounds of the consent of the parties to be obligated by the treaty; and (b) The effect of the change is fundamentally to change the extent of requirements to be completed under the treaty. 15 “Clausula rebus sic stantibus” (Latin for “things thus standing”) in public international law, is the legal principle that allows for a treaty to become implausible to effect because of an elemental change of conditions (The Doctrine of Rebus Sic Stantibus and the Termination of Treaties, 1927 pp. 509–516). The principle is fundamentally an “escape clause” to the universal rule of “Pacta sunt servanda” (promises must be kept). Although much debate is in the background of rebus sic stantibus as well as the usage for its application, the bulk of authority assures of the doctrine's life as very much a part of international law.16 The continuation of this principle is mostly relying on the notion that any existing legal system should and will have adequate room for adjusting and reconciling the opposing interests of consistency and peaceful adjustments. Despite strong support for the principle, there is general appreciation and recognition of the dangers of its unnecessary use, and the resulting need to cautiously define and explain its function and operation. The test for the doctrine's application is highlighted in a multiplicity of ways. A frequent element is that the change in conditions must be fundamental and essential to the completion of the treaty. This means that the adjustment must not only reckon conditions that are pertinent to the performance of the treaty, but it should also make the treaty completion much more onerous as a result of these adjustment and changes (International Court of Justice, 1973 pp. 49-67, para 38, 299 & 43). Since global treaties are mostly entered into contract to deal with prospect state of affairs, it is evident that an agreement shouldn’t be conceived as inapplicable just because future events aren’t congruous fully with the expectations of one or more of the parties (Rhyne, 1971). As this rule of is a risk to the security of treaties, as its scope is relatively liberal, the circumstances in which it may be invoked must be cautiously prominent. Article 62 of the Vienna Convention on the Law of Treaties 1969 makes it likely to invoke the basic change of circumstance for terminating or withdrawing from an international

15

Please refer to the Art 62 of the Vienna Convention on the Law of Treaties (United Nations, 1969).

Examples From State Practice Include: The Iranian Repudiation Of The 1921 Friendship Treaty Between Persia And Russia; The United States' 1941 Suspension Of The Load Line Convention; French Termination Of Certain Nato Agreements; And The Egyptian Attempt To Persuade The Security Council To Declare The 1936 Anglo-Egyptian Treaty At An End. 16


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treaty. Intrinsic to the act of contracting for the prospective future is an acknowledgement for the uncertainties of that future. The issue that is brought into the limelight by the legal principle of rebus sic stantibus is which kind of changes would fall outside such a scope. The following can be considered within the said ambit: 4.1

Impossibility of Performance

It is an established principle of international law that if a treaty becomes actually impossible through no fault of any involved party, then as a result that party will be terminated of its involvement or required obligation. This doctrine is unmistakably applicable in the case of a commercial treaty or on the sale and delivery of goods. Some authorities, however, have suggested that it has a broader application. Jurist Nahlik has referred to a subjective impossibility other than an objective impossibility (The Grounds of Invalidity and Termination of Treaties, 1971 p. 736). 4.2

Force Majeure

A nation may avoid treaty obligations on the basis of an interfering incident that might be natural occurring disaster or even a complete foreign invasion (Brownlie, 1979 p. 419). Although, that this principle is limited to incidents in which the performance of the obligation would jeopardize the very survival of the involved state. 4.3

Other Doctrines

Other principles related to those mentioned above but not of any particular relevance to major transformations may be briefly noted. Treaties that were legal and lawful at the time of coming into a contract but which later transgressed a principle which has later been included in jus cogens are termed void by that development (Oppenheim, et al., 1955 p. 925). An epidemic of disease or possibility of war will cause the termination of at least those treaties whose continuation would be impractical and implausible with the existing conditions of the war (Brierly, 1963 p. 332). Treaties can also be termed void through ways of acts of retaliation or even for desuetude. 5

Legal consequences & procedure for controlling unilateral termination of treaties

If the factual setting changes drastically, the mutual profits of the treaty may reallocate and sustained performance of its original terms and conditions may inflict a severe deprivation on one involved party. When these conditions arise, the disadvantaged party may raise a claim to conclude the treaty. It is precisely at this juncture that the dearth of processes and rules for dispute resolution is very perversely felt and the foundation of treaties in international law is visibly endangered. One of the many consequence of this circumstances is the obvious unwillingness to appreciate the right of unilateral emendation or termination since the entire concept of clausula rebus sic stantibus is by no means unanimous or conventionally within international law institutions accepted (Revolutions, Treaties, And State Succession, 1967 p. 1669). However, in a transient world, an inflexible principle of pacta


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servanda itself obstructs treaty-making and steady international relationships; its rigidity deters conscientious states from entering into international agreements. Other than offering default exit rules for treaties that are deficient express exit provisions, the VCLT 1969 lays into the open significant doctrines regarding the legal resultants of the exit.17 Termination does not, ‘affect any right, obligation or legal situation of the parties created through the implementation of the treaty prior to’ the date that the termination takes effect (United Nations, 1969). Nor does it weaken the duty of any State to fulfill any compulsion embodied in the treaty to which it would be subject under international law separately from the treaty —an implicit reference to customary international law. These restrictions are similarly implementable to a State that unilaterally revokes a multilateral treaty.18 These set of laws play the role as a deterrent to exiting. The overpowering majority of termination and withdrawal provisions require previously sent notice to other involved treaty parties. During the notice period, the legal requirements of all involved States parties—as well as the nation that wants to withdraw from or terminate the contract shall carry on without obstruction. States shall be accountable and answerable for any violations that take place during the notice phase. All these clauses restrict States from using exit to evade answerability for past committed breaches in international law. They also dissuade withdrawals wherein States opportunistically try to exit and then without delay violate a rule that it beforehand agreed as obligatory (Exiting Custom: Analogies To Treaty Withdrawals, 2010 pp. 65, 78-9). The instant after the formulation of a treaty between two parties presents a certain level of consensus; the instant of dispute, however, represents a point of disharmony. The incongruity that characterizes this latter point in time very discernibly affects the compliance of at least one party to submit itself to an institutionalized resolution process, which may in some way amend the material of a treaty. When a dispute arises over a bilateral treaty, one involved party in all probability stresses upon a change in the treaty regime, while the other finds that it is to its benefit to continue upon a rigid interpretation of the same treaty resulting very apparently in tension among the involved parties (Procedures For Controlling Unilateral Treaty Terminations, 1969 pp. 544-547). One of the ways of avoiding at least this difficulty is to render the establishment of the arbitral tribunal envisaged in the jurisdictional provisions as an essential clause to force the treaty in question. The tribunal could be fashioned, declare itself in sitting, record and register its own existence and function of the treaty and then adjourn sine die. Once in existence however, the tribunal cannot be caused problems by the defection of one state. Should a difference of opinion arise and one state eliminate its panel member, general arbitration law allows the tribunal itself to restock its personnel and after defaulting to the appropriate procedure to offer judgment. One cannot enumerate the political consequence of such an ex parte award.

Please refer to the Art. 70(1)(A) of the Vienna Convention on the Law of Treaties (United Nations, 1969). 17

Please refer to the Articles 43 and 70(2) of the Vienna Convention on the Law of Treaties (United Nations, 1969). 18


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6

Case Studies

6.1

Appeal Relating to the Jurisdiction of the International Civil Aviation Organization Council [India v. Pakistan] (International Court of Justice, 1972 p. 46)

Facts: Pakistan (plaintiff) in this case brought a suit against India (defendant) before the Council of the International Civil Aviation Organization (ICAO) on the justification that India had dishonored clauses of the Chicago Convention on International Civil Aviation and the International Air Services Transport Agreement (1944). The suit was based on India’s act of unilaterally shelving flights made by Pakistan airplanes over Indian region. ICAO implied jurisdiction over this case because of the jurisdictional provisions in the treaties. India petitioned an application of appeal to the International Court of Justice (ICJ), declaring that ICAO had no jurisdiction due to the treaties not being in effectual force anymore. India stated that it suspended the Pakistan aircrafts due on a violation and contravention of treaty by Pakistan which took place when Pakistan allegedly was conspiring with the hijacking of an Indian plane. India stated that the ICJ and not the ICAO had any kind of jurisdiction over the case. Pakistan argued that India could not all together claim the treaty was not in effect due to Pakistan’s violation, and also that the treaty’s jurisdictional clause simultaneously applied. Pakistan raised objection against the jurisdiction of the I.C.J.’s on the basis that India’s unilateral termination had made the jurisdictional provision ineffective. India hence then proceeded to argue that the treaties had been or became suspended in amongst the parties involved since the outbreak of conflict between India and Pakistan in 1965 and had never been actually resuscitated since. India itself “had the right to terminate them unilaterally and it should be held here as having suspended them unilaterally” in 1971 under general laws of international governance allowing unilateral suspension for breach (in particular the hi-jacking of an Indian aircraft, supposedly with the conspiracy of Pakistan involvement (Unilateral Denunciation Of Treaties: The Vienna Convention And The International Court Of Justice, 1974 pp. 51-68). This accusation of a unilateral right of suspension of treaties for violation under general doctrines of international law was also alleviated by India to prop up its second assertion that the suspension of treaty made no provision that couldn’t involve the understanding or appliance of that treaty and was as a result not within the jurisdictional provisions. In other words, in Indian behavior and acts weren’t within the treaties’ scope but outside them. Issue: Are jurisdictional provisions rendered implausible and impractical in use by mere unilateral suspension? Held: Jurisdictional clauses are not affected fundamentally inoperative by a simple unilateral terminating act alone. If a measly contention that a treaty is no longer functioning can be used to overwhelm its jurisdictional provisions, then provisions of this nature would become possibly a dead / defunct letter of law. This basically implied that the Court had jurisdiction. Discussion: The Court was able to construe that any treaty could be desecrated by any one party’s claims that the treaty was no longer functional, hence further compromising the basic and fundamental goal the treaty might seek to accomplish. It may specifically be one of the basic purposes of jurisdictional provisions of a treaty to facilitate that matter to be arbitrated upon.


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This holding that a difference of opinion as to suspension of a treaty for a violation/ contravention in necessarily one as to its interpretation or application is rather even more fascinating due to the courts dependence on the Vienna Convention in the Law of Treaties as an established authority and commanding statement upon international law even before the entry to the effect of that Convention (Unilateral Denunciation Of Treaties: The Vienna Convention And The International Court Of Justice, 1974). 6.2

Significance of the study in wake of current events

Onset of COVID19 Pandemic 1. Through multiple treaties and conventions, the global community has established and acknowledged standards of state performance in general interest; and many worldwide agreements are completed for the intention of the regulation of relationships between states through contractual bonds and reciprocal natures amidst them (Sinha, 1966). 2. The framework and process of treaty exit clauses were long unseen by most scholars and political scientists (McNair, 1961 p. 510). Over the preceding decade, that hush has been broken as commentators in both fields have dedicated new interest to the design and use of global agreements in general and treaty elasticity mechanisms in particular. Even though, clauses authorising denunciation and withdrawal from treaties are all pervasive, less seems to be said about it. But what happens when a global pandemic like Covid 19 hits the international market and there’s uncertainty prevailing every convention and every treaty completion threatened by it? 3. What are the defences available to nations in the current global geopolitics to emphasise the relevance of the issue of denunciation and/or withdrawal from these international treaties. Whether States will be even required to depend on these defenses at all would actually be based on the particular requirements at issue. Certain requirements, like those under human rights treaties which are subject to restrictions and derogations, don’t include dependence on the defense of necessity. However, some other requirements might actually already accommodate extraordinary state of affairs; for example, due diligence requires the fulfillment of a definite standard of diligence which standard shall always be subjective to the conditions. The renders dependence on a plea of force majeure is outmoded since if it’s not possible to exercise a certain qualification of diligence due to extraneous circumstances then naturally State can’t be held to be acting inconsistently with its obligations. 4. Since the onset of COVID19, the question that arises is what will qualify as a defense for the termination/ withdrawal of states from treaties and conventions. One of the most agreeable defenses here can be of force majeure. However, it would do us well to remember that a successful claim must fulfil 5 conditions: (i) there must be an unforeseen event or an irresistible force (the ‘triggering event’); (ii) the event or force must be beyond the control of the State; (iii) the event must make it functionally unfeasible to perform an obligation; (iv) the State must not have in any way contributed to the situation; and (v) the State must not have assumed the risk of the situation occurring. Each of these will be assessed in turn, except for (v) which is likely to depend on the specific language of particular treaty commitments (Paddeu, et al., 2020). 5. The triggering event must cause a ‘functional impossibility’ to complete an international responsibility. Though there isn’t any definition provided for the ‘functional’, the


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adoption of this defense implies that the impossibility must be material and absolute. ‘Material’ means the type of impracticality that it must be a tangible and corporeal incapability to perform the requirement. ‘Absolute’ means the degree of this impossibility: the State must have absolutely no means of the fulfillment of the compulsions in question. This is established by the underlying principle of the plea in the fact that the non-completion of the requirement is in no way ‘involuntary or involves no element of free choice’ (Paddeu, et al., 2020). 6. Whether the corona virus outbreak will cause this kind of impossibility cannot be answered in broad brackets since it will depend on the compulsion in question with respect to the treaty or convention. However, it is tricky to notice whether or not this very lofty standard be met. Simply put, it is very probable for States to continue to run as usual. They might have taken measures to address the emergency, the conduct of which is controlled by external events – but it is not ‘involuntary’ and neither does it involve ‘no element of free choice’. The States have at least ‘some’ choices – as inadequate as these may be – and hence, they do not face an unconditional impossibility of fulfillment of obligations, but instead a relative one. This doesn’t put them in the same ambit or scope of force majeure and rather couples them into the potential claims of necessity and distress. The claim of force majeure is a very restrictive one, and States have hardly ever been triumphant when claiming it as a subject of international law. The epidemic of COVID-19 qualifies as an event which has and can further trigger a condition of force majeure, but States will even so have trouble indicating the impracticality of the fulfillment of obligations necessary for the use of cover of force majeure. This will however in most cases obviously rely on the particular compulsion in each case, but in most cases States are likely to have a choice (even if a tricky one) with regards to conformity to conditions required to stay in a treaty or withdrawal from it. US withdrawal from the Paris Agreement 1. More than three decades ago, a D.C. Circuit judge cautioned against the risk of “an ambitious or unreasoned President disengaging the United States from crucial bilateral and multilateral treaties with the stroke of a pen.” (The Law of Treaty Termination as Applied to the United States De-Recognition of the Republic of China, 1978 pp. 931, 1008). We see the same transpiring in United States in today’s world with the Trump Administration having announced its intention to withdraw from a host of bilateral and multilateral arrangements, including the Paris Climate Agreement; the Joint Comprehensive Plan of Action (JCPOA); the U.N. Educational, Scientific, and Cultural Organization; the Global Compact on Migration; among others since 2017 (The Trump Administration and the “Unmaking” of International Agreements, 2018 pp. 443, 444). Treaties and such other international conventions function in dual international and domestic frameworks (Malanczuk, 1997 pp. 64-71). With relevance to the former framework, many international agreements that are binding in nature actually comprise of pacts between nations, and they more oft than not create rights and duties that sovereign states are obligated to one another under international law (Wippman, et al., 2015 pp. 37-38). Although such withdrawal may not compose a legal breach or violation in strict justiciable terms, the withdrawing party might still undergo consequences and the likelihood of political penalty and responsive measures from global actors.


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2. Albeit not a party to it, the United States has deemed the Vienna Convention on the Law of Treaties (“VCLT”) to “provides a legitimate guide to international treaty law and practice on the authority and withdrawal of treaties (Office of Legal Advisor, US Department of State, 2016 p. 154).” So while the emissions-reduction pledges in the Paris Agreement are non-binding political commitments, its procedural provisions do create lawfully compulsory obligation under international law (Bridgeman, 2017). Under Article 28 of the Paris Agreement, a country may give notice of its purpose to withdraw after three years have elapsed from the Agreement’s entry into force on November 4, 2016. Withdrawal after that will take place one year after the received notification explicitly implying the intention to do so. Hence, even though in August 2017, the United States proposed a formal notice of withdrawal, actual withdrawal from the Paris Agreement can only take consequence from November 2020. 3. Additionally, under Article 68 of the VCLT, such withdrawal can be rescinded at any point of time before the withdrawal becomes effectual legally. Accordingly, if the United States attempts to stop execution of at least the binding rudiments of the Paris Agreement before then, it runs a considerable risk that it would be in violation of international law, as the United States would be in theory still bound by its obligations. Hence, it wouldn’t be wrong to say that a contravention of international law by the United States would have major foreign policy implications, which would include for the loss of capability of the United States to uphold other global actors and international players answerable and accountable for their conduct in effectuating international agreements or convention adherence in matters far beyond climate change (The Trump Administration and the “Unmaking” of International Agreements, 2018 pp. 443, 444). Therefore, President Trump cannot simply “undo” the Paris Agreement with a simple stroke; for U.S. withdrawal to be effectually realized under international law, the withdrawal provisions in the Agreement need to be adhered to. 4. Therefore, at present, the United States continues to be a party to Paris Agreement, at least until Article 28’s withdrawal procedure is complete—albeit having announced the intention very publicly once it become eligible to do so. 7

Conclusions

This article has attempted to analyse the diverse mechanisms that States employ to terminate their treaty-based dealings, which includes express suspension, withdrawal, and denunciation provisions and the default rules provided by the authority of Vienna Convention on the Law of Treaties (1969). The author tried to argue that ‘exit’ clauses in fact help States to alleviate the qualms that are prevalent to such international contracts and dealings. In concluding, it is imperative to highlight and understand that treaty exit provisions do not exist in a vacuum. Instead, they function in tandem with other elastic policies and apparatus—such as reservations, amendment rules, escape provisions, and renegotiation clauses—that treaty contractors use to mitigate risk. The affiliation among these elastic tools has oft times been a source of distress and concern to government officials and speculators who are involved in bettering the treaty assembling process. It would be constructive to connect these studies to topical investigations which analyze the structure and essence of these international agreements.


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The research might deem how States decide from among a varied array of lithe mechanisms, and how they actually implement the mechanisms accessible to them. The conclusions of these investigations would also assist mediators in formulating treaties that more efficiently attend to the dissimilar array of legal issues that are areas which are simultaneously under

jurisdiction and influence of international directives and instructions. References

1. Aust, Anthony. 2010. Handbook Of International Law. s.l. : Cambridge University Press, 2010. 2. Bridgeman, Tess. 2017. Tess Bridgeman, Paris is a Binding Agreement: Here’s Why that Matters. Just Security. [Online] June 4, 2017. https://www.justsecurity.org/41705/paris-bindingagreement-matters. 3. Brierly, J. 1963. The Law Of Nations: An Introduction To The International Law Of Peace. 1963. 4. Brownlie, Ian. 1979. Principles of Public International Law. 1979. 5. David, Arie E. 1975. The Strategy Of Treaty Termination: Lawful Branches and Retaliations. 1975. 6. Exiting Custom: Analogies To Treaty Withdrawals. Helfer, Laurence R. 2010. 2010, Duke Journal of Comparative & International Law, Vol. 21. 7. Exiting Treaties. Helfer, Laurence R. 2005. 7, 2005, Virginia Law Review, Vol. 91, pp. 15791648. 8. Fitzmaurice, Sir Gerald. 1956. Report On The Law Of Treatise. [book auth.] International Law Commission. Yearbook of the International Law Commission 1956. 1956. 9. —. 1957. Second Report on the Law of Treaties. Yearbook of the International Law Commission 1957. 1957. 10. Gidel, Gilbert, [trans.]. 1929. Cours De Droit International. 1929. 11. Gomaa, M M. 1996. Suspension or Termination of Treaties on Grounds of Breach. THe Hague : Martinus Nijhoff, 1996. 12. International Court of Justice. 1972. Appeal Relating to the Jurisdiction of the International Civil Aviation Organization (India v. Pakistan). The Hague : International Court of Justice, 1972. 13. —. 1973. Fisheries Jurisdiction Case. 56, 12 ILM 290, 298. The Hague : International Court of Justice, 1973. 14. Lissitzyn, Oliver J. 1966. Unilateral Denunciation Of Treaty Because of Prior Violations of Obligations by Other Party Foreword. s.l. : Springer, 1966. 978-94-011-8745-9. 15. Malanczuk, Peter. 1997. Alkhurt’s Modern Introduction to International Law. 1997. 16. McNair, A. 1961. The Law Of Treaties, Clarendon Press. s.l. : Clarendon Press, 1961. 17. Office of Legal Advisor, US Department of State. 2016. 2016 Digest Of United States Practice In International Law. 2016. 18. Oppenheim, Lassa and Lauterpacht, Hersch. 1955. International law : a treatise. Vol. I, Peace. 1955. 19. Paddeu, Federica and Jephcott, Freya. 2020. COVID-19 and Defences in the Law of State Responsibility: Part I. EJIL: Talk! [Online] European Society of International Law, March 17, 2020. https://www.ejiltalk.org/covid-19-and-defences-in-the-law-of-state-responsibility-parti/. 20. Poonja, Mahmood M. 1977. Termination Of Treaties Owing To Fundamental Change Of Circumstances (Clausula Rebus Sic Stantibus): A Doctoral Dissertation, Juris Doctor Dissertation. Prague, Czech Republic : Charles University, Prague, 1977. 21. Procedures For Controlling Unilateral Treaty Terminations. Reisman, W Micheal. 1969. 3, 1969, American Journal of International Law, Vol. 63. 22. Revolutions, Treaties, And State Succession. 1967. 1967, Yale Law Journal, Vol. 76, pp. 16691687.


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23. Rhyne, C. 1971. International Law: The Substance, Processes, Procedures And Institutions For World Peace With Justice. 1971. 24. Sinha, Bhel Pati. 1966. Unilateral Denunciation Of Treaty Because Of Prior Violations Of Obligations By Other Party. s.l. : Springer, 1966. 978-94-011-8745-9. 25. The Doctrine of Rebus Sic Stantibus and the Termination of Treaties. Garner, J W. 1927. 1927, American Journal Of International Law, Vol. 21, pp. 509–516. 26. The Grounds of Invalidity and Termination of Treaties. Nahlik, S E. 1971. 1971, American Journal of International Law, Vol. 65, pp. 736-756. 27. The Law of Treaty Termination as Applied to the United States De-Recognition of the Republic of China. 1978. 1978, Harvard International Law Journal, Vol. 19. 28. The Trump Administration and the “Unmaking” of International Agreements. Amirfar, Catherine and Singh, Ashika. 2018. 2018, Harvard International Law Journal, Vol. 59. 29. Unilateral Denunciation Of Treaties: The Vienna Convention And The International Court Of Justice. Briggs, Herbert W. 1974. 1, 1974, American Journal Of International Law, Vol. 68, pp. 51-68. 30. United Nations. 1969. Vienna Convention on the Law of Treaties. 1969. 31. Wippman, David, Dunoff, Jeffrey L and Ratner, Steven R. 2015. International Law, Norms, Actors, Process: A Problem Oriented-Approach. 2015.


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Analyzing the Veto Power of the United Nations Security Council Dhanya Viswesvaran1 1Student,

National Law University, Odisha dviswesw3241@gmail.com

1

How was the security council established?

The United Nations (henceforth, “UN”) was set up in 1945, and is arguably the most important international organization in the world. (United Nations) Simply put, it is an organization of “peace-loving” nation-states that rose up in the aftermath of World War II. (BBC News, 2017) It was established by the Charter of the United Nations (henceforth, “UN Charter”), which further established six organs of the UN. (Article 7, The Charter of the United Nations, 1945) The Security Council (henceforth, “SC”) is one of these organs, and is designated to meet whenever there exists an identified threat to peace and security in the international community. (Article 24, The Charter of the United Nations, 1945) Currently, the SC consists of five permanent members (henceforth, “P5”) and ten non-permanent members, elected through the UN General Assembly (henceforth, “GA”) for twoyear terms each. (Article 23(1), The Charter of the United Nations, 1945) The current P5 members of the SC are the United States of America (henceforth, “USA”), the United Kingdom (henceforth, “UK”), France, China, and USSR/Russia (henceforth conjointly referred to as “Russia”). (Article 23(1), The Charter of the United Nations, 1945) All five nationstates have remained constants throughout the various changes in membership that the Security Council has been subjected to. The most integral advantage of being a P5 member, apart from permanency in the SC, is the veto power. What this represents is the ability of every single P5 member to unilaterally prohibit a certain decision from being officially taken. Only when every single P5 member concurs with a decision will it be officially taken by the SC. (Article 27(3), The Charter of the United Nations, 1945) Undoubtedly, the veto power gives the P5 members unfettered influence over every matter that the SC takes up, especially since there exists no particular check and balance over this ability. This happens to be the major reason why the veto power is opposed by various other nation-states. (United Nations General Assembly SeventyThird Session, 2018) When considering the permanent member status and the veto power that it provides to the P5 members in the SC, it is very important that we understand the roots and motivations behind this designation in the first place. Two questions are to be considered in this respect. 1.1

How did the idea of permanent membership and the veto power come about?

As we noted before, the UN came up in the ashes of World War II. However, the setting up of the UN was not a novel idea in itself. The ideologies of the organization, to a very large extent, were borrowed from the League of Nations. The League of Nations was the most prominent forerunner to the UN and was set up in the aftermath of World War I by the Treaty of Versailles in 1919. (United Nations)


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While the League of Nations itself had no permanent members, it conferred certain advantages to the nation-states that were signatories to its governing treaty. These advantages have, when it comes to the SC, been translated into the ability of the P5 members to exercise the veto power. Part I of the Treaty of Versailles deals with the Covenant of the League of Nations, wherein Article 5 stipulates that “agreement of all the Members of the League represented at the meeting,” is required while taking decisions. (Article 5, Treaty of Versailles, 1919) Despite never using the word ‘veto’, there exists no doubt that this article does, in fact, confer the ability to veto to the member states of the League of Nations. Similarly, the provisions of the UN Charter that govern the SC do not explicitly mention the word ‘veto’ either. Article 27(3) stipulates that all decisions of the SC require an affirmative vote of “nine members including the concurring vote of the permanent members.” (Article 27(3), The Charter of the United Nations, 1945) What does the word ‘concurring’ entail? The word has not been defined anywhere in the UN Charter. However, through the historical practice of the SC, it has been understood as every decision of the SC requiring a necessary affirmative vote from each P5 member, with the exception of one or more of the P5 members abstaining from voting. The first abstention from voting in the SC occurred on 29th April 1946 when Russia abstained from voting on a resolution regarding the Spanish Question. (S/RES/4, 1946) On receiving affirmative votes from the remaining four P5 members, the resolution was considered to have been passed. Despite the insistence of Russia that this particular incident of allowing the resolution to be adopted when there exists an abstention from voting should not act a precedent for the future, this has become a commonly accepted practice. (Sievers and Daws, 2014) Hence, to concur means to either vote affirmatively or abstain from voting. However, the League of Nations was eventually terminated on 18th April 1946 and its assets were transferred to the United Nations. (Resolution for the Dissolution of the League of Nations, Adopted by the Assembly on April 18, 1946, 1947) This move was a necessary evil, with one of the major reasons being that in 1936, the League of Nations was expanded to include many more members and it became next to impossible for all these members to be in agreement and give consent on any particular issue. Learning from previous mistakes with the League of Nations, the UN Charter conferred the SC with permanent membership to only five of its members and the necessity to concur was restricted only to these chosen P5 nation-states. (Article 23, The Charter of the United Nations, 1945) 1.2

Was providing the P5 members with permanent member status and the veto power inevitable to enlist their support?

All five P5 nations have one thing in common, that is, they were all the most important nation-states in the aftermath of World War II. (United Nations) In 1945, when the UN was in the process of being established, the P5 members were the strongest players in the international community. Simply put, for the UN to be a successful organization with the utmost credibility in the world order, the support and participation of the P5 members was crucial. However, ensuring their active involvement was easier said than done. In such a situation, the veto power acted as a valuable incentive to get all the P5 nations to endeavour to work together in the SC. (Security Council Report, 2015) It also served to act as an official recognition of the power wielded by these five nation-states. Would it be correct to say that without providing the P5 members with the veto power there existed no other alternative method to convince all of them to join the SC? This assertion is a tough one to make conclusively. However, as a corollary, it would not be


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incorrect to say that the veto power surely made the process of enlisting support from the P5 members much easier. Hence, the veto power of the SC is an undeniably important part of the SCâ&#x20AC;&#x2122;s existence and working. Realizing this fact, this paper attempts to study the vetoes cast by all the P5 members through a quantitative as well as qualitative statistical analysis of the vetoes. Pursuant to this analysis, an attempt has been made to identify certain existing trends and further explore them. Only vetoes cast in open sessions of the SC have been analysed. Hence, vetoes regarding issues raised in private sessions, such as the appointment of UN Secretary-Generals over the years, have not been analyzed. 1.3

A quantitative statistical analysis of the veto power

The SC held its first ever meeting on 17th January 1946, with the first ever veto being cast just about a month later on 16th February 1946 by Russia. Since then, till 20th December 2019, the veto has been cast by the P5 members for a total of 294 number of times pertaining to 243 issues. By carrying out a quantitative statistical analysis, answers to certain questions can be found. 1.4

What is the proportion of vetoes cast be every P5 Member?

The most basic question that would arise in the mind of any person studying about the veto power of the P5 members would be regarding the frequency of its usage over the course of the SC's existence. This question can be best answered by studying the veto behaviour of every P5 member individually. Observation Table 1: Table Showing the Total Number of Vetoes cast by every P5 Member over the course of the Security Council's Existence S. No. P5 Member Number of Vetoes Cast 1

Russia

143

2

USA

85

3

UK

32

4

France

18

5

China

16

Total Vetoes cast by all P5 Mem-

294

bers


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Analysis From the table and figure drawn above, one can clearly conclude that Russia has cast the highest number of vetoes, with its tally standing at 143. These 143 vetoes form almost half of the total number of vetoes ever cast in the SC. Of the remaining half of the vetoes cast, USA takes the lead with almost 30% of the vetoes, its tally standing at 85. China, UK, and France have together cast the remaining 22% of votes.


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Conclusions Therefore, going by a purely numerical analysis, Russia takes the lead with its 143 vetoes while China, with its 16 vetoes, seems to be the most hesitant when it comes to casting vetoes. However, it is interesting to note that over the years, the number of vetoes cast by Russia have steadily gone down while those cast by USA and China have steadily increased. This is further evaluated in the forthcoming sections. 2

How many vetoes have been cast by the P5 members over the course of the Security Council's existence?

While it is true that historically Russia has cast the most vetoes throughout the life of the SC and China has cast the least, this statistical information is not enough. Two other related questions arise when we follow our previous line of thinking. 2.1

Have the number of vetoes increased or decreased as the Security Council continues its existence?

Observations Table 2: Table Showing the Number of Issues Vetoed by the P5 members over the course of the Security Council's Existence (with the life of the Security Council being further divided into Smaller Time Periods) Time Period Number of Years Number of Issues Vetoed in every Time Period 11 86 1946-1956 1957-1967 11 25 1968-1978 11 35 1979-1990 12 54 1991-2019 29 43 Total 74 243


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Analysis The 74 years throughout which the SC has continued to exist can be divided into certain smaller time periods. An extremely broad classification would entail bifurcation on the basis of the Cold War. The period of 1947-1990 would be designated as the Cold War era while 1991-2019 would become the Post-Cold War era. We would benefit from further dividing the Cold War era into smaller time periods. Keeping this in mind, a further division of the Cold War era is carried out into four smaller time periods, that is, the first time period of 1946-1956 (11 years), the second time period of 1957-1967 (11 years), the third time period of 1968-1978 (11 years), and the fourth time period of 1979-1990 (12 years). We begin by analysing the Cold War era first. The highest number of vetoes in the history of the SC were cast in the first time period immediately following the setting up of the organization, with the tally being 86 vetoes over 11 years. However, this number faced a decline in the second time period. With 25 vetoes being recorded, the second time period of 11 years contains the lowest number of vetoes ever recorded in the history of the SC. This decline is thwarted in the following time periods. The number steadily increased throughout the Cold War area post the second time period, with an aggregate tally of 89 vetoes being recorded in the third 11-year and fourth 12-year time period. The total vetoes recorded in the Cold War era stands at a tally of 200, with the era having a total lifespan of 45 years. On an average, at least 4 vetoes were cast every year during the 45-year lifespan of the Cold War era. However, in the last 29 years that form the Post-Cold War era, the number of vetoes has faced a remarkable decline. Only 43 vetoes have been recorded in total. On an average, only one veto, if not more, has been cast per year. The drop in vetoing from at least four vetoes being cast every year in the Cold War era to only at least one veto being cast every year in the Post-Cold War era is of utmost importance. It cannot simply be written off as a conscious realization on the part of the P5 members to exercise the veto power with more care and avoid accusations of abuse. Instead, it reflects more of a change in the mindset and approach of other key players in the SC, such as stakeholders who introduce issues in the SC for consideration by its members. This is where the concept of the hidden veto must be introduced. This concept has gained prominence in the Post-Cold War era and provides a logical explanation for the dwindling veto tally in recent years. It posits that while the formal casting of veto in open SC meetings


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might have gone down, in reality vetoes are still being cast. However, this is done informally, with the P5 members creating apprehensions in the mind of stakeholders regarding the likelihood of them exercising their veto power. Curtis Ward, the Ambassador of Jamaica, described it best when he said that, â&#x20AC;&#x153;The mere presence of the threat of the veto determines the way the Council conducts its business.â&#x20AC;?19 Through its exercise, the P5 members can control the entire agenda of the SC as well as block action whenever they desire, largely based on their political preferences and alliances or feuds. The best example of this is constant warnings given by US in the SC, where it has opposed decisions that are detrimental towards Israel, its prominent ally. It has followed through on its warning multiple times in the past. The hidden veto is a representation of one of the most blatant abuses of power in recent times, especially in the international community. Conclusions While it may seem like the fall in the vetoes being cast in recent years is a cause for celebration, it is in fact the contrary. By virtue of its informal nature, it is very difficult to ascertain how prevalent the usage of the hidden veto is in the working of the SC. It is imperative that the pervasiveness of this measure in the SC be publicized and more widely discussed, so that we can, at least, begin to think of measures that will help in combatting the increasingly tyrannical nature of the organization. 2.2

Has the veto usage by individual P5 members increased or decreased as the security council continues its existence?

Table 3: Table Showing the Number of Vetoes cast by each P5 Member over the course of the Security Council's Existence (with the life of the Security Council being further divided into smaller Time Periods) Time Period

Vetoes by Russia [A]

Vetoes by USA [B]

Vetoes by UK [C]

Vetoes by France [D]

Vetoes by China [E]

1946-1956

82

-

2

4

1

Total Vetoes Cast in every Time Period [A+B+C+D+E] 89

1957-1967

24

-

1

-

-

25

1968-1978

6

21

14

7

2

50

1979-1990

6

48

15

7

-

76

1991-2019

25

16

-

-

13

54

Total

143

85

32

18

16

294

19

Statement at the Wrap-Up Session of August 2001, S/PV. 4363, p.7. Jamaica served in the Council in 2000-2001


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Analysis In the first 22 years following the establishment of the SC, Russian vetoes formed more than 90% of the total vetoes cast. The second highest contributor to the vetoes were France and UK but this formed just about 5% of the total vetoes for those periods. Additionally, vetoes by USA during this time were non-existent. However, from the late 1960â&#x20AC;&#x2122;s this trend changed. USA became a forerunner when it came to casting vetoes, with Russia starting to take more of a backseat. However, through the entire Cold War era, China acted as more of a silent spectator than an active participant in any veto casting. Now, in the Post-Cold War era, some of these trends have persisted, such as increased participation of USA with somewhat reduced veto casting by Russia. However, most surprising is Chinaâ&#x20AC;&#x2122;s shedding of its silent spectatorship, moving towards active participation. China


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has cast the most vetoes in recent times. UK and France, on the other hand, seem to have adopted Chinaâ&#x20AC;&#x2122;s earlier stance of silence spectatorship, with them recording no vetoes in the Post-Cold War era. Conclusions It is interesting to note that during the initial days of the Cold-War era, active veto casting was only undertaken by Russia, UK, and France. Vetoes from USA and China were nil. However, in the Post-Cold War era, the situation is almost the exact opposite. UK and France have cast no vetoes in the last 29 years, with Russia casting minimal vetoes as well. 70% of the total vetoes in the Post-Cold War era have been cast by USA and China together, who were the least active participants in the years following the establishment of the SC. Holistically, this indicates broad changes in the ideologies and preferences of these nations. 3

A Qualitative Statistical Analysis of the Veto Power

At the end of the day, the SC is less of a diplomatic and more of a political organization. All the P5 members hold political biases towards and against each other, non-permanent members, and various other stakeholders. This section attempts to uncover these political biases by analyzing the nature of the various decisions that have been vetoed by the P5 in the last 74 years. In the course of our analysis, certain questions arise. 3.1

What are the major decisions that have been vetoed by the P5 members?

In the last 74 years, a number of issues have been vetoed by the P5 members. After looking at each and every issue vetoed till the end of December 2019, these have been segregated into broadly 50 themes. By analyzing these themes, we attempt to find certain biases that the P5 members may hold towards or against certain issues and the relevant stakeholders behind them. Observations Table 4: Table Showing the Division of Issues Vetoed by Each P5 Member in the Security Council Into 50 Broad Themes (In Descending Order of Total Number of Vetoes) S. No.

Issues

Vetoes Russia

1

Admission of New Members Palestinian Question; Israel/Palestine; Israel; Question of the Exercise by the Palestinian People of their

2

by

Vetoes by the UK

Vetoes by France

Vetoes by China

Total Vetoes

51

Vetoes by USA 6

-

-

2

59

2

29

2

2

-

35


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4 5

6

7

8 9

10

11

Inalienable Rights Namibia Question; Situation in Namibia; Situation in South Africa and the Illegal Invasion of Namibia Syria South Africa: Called for Sanctions; Complaint by Angola against South Africa; Botswana, Zambia, and Zimbabwe: Complaint against South Africa; South Africa; Situation in South Africa; Expulsion of South Africa from UN Membership Complaint by Lebanon; Lebanon/Israel; Lebanon Situation in South Rhodesia; Situation in Rhodesia; Southern Rhodesia; South Rhodesia (Zimbabwe); Zimbabwe Spanish Question NicaraguaUS; Nicaragua; Letter from Nicaragua India-Pakistan; Calling upon India to Withdraw its Forces from Goa, Daman and Diu Letter from Libya; Letter from Libya,

179

-

9

9

7

-

25

14 -

9

8

3

8 -

22 20

3

10

-

-

-

13

1

2

9

-

1

13

7

-

-

1

-

8

-

7

-

-

-

7

6

-

-

-

-

6

-

2

2

2

-

6


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12 13 14

15 16 17 18 19

20 21

22 23

24 25 26 27

Burkina Faso, Syria, and Oman Situation in the Middle East Congo Question; Situation in the Congo Complaint of Aggression against Republic of Korea; Republic of Korea/USSR Greek Frontier Incidents Panama Canal Question; Panama Syria/Israel Bosnia-Herzegovina; Bosnia Complaint by USSR; Incident in which a US Air Force plane was brought down by Soviet Military Forces Indonesian Question Proposal of the Commission on Conventional Armaments; Regulation and Reduction of Armaments Situation in Cyprus/Cyprus China and Viet Nam; Cambodia and Viet Nam Complaint by Guatemala; Guatemala Falkland Islands (Malvinas) Letter from Chile Myanmar

1

4

-

-

1

6

5

-

-

-

-

5

5

-

-

-

-

5

5

-

-

-

-

5

-

3

1

1

-

5

3 2

1 1

-

-

-

4 3

3

-

-

-

-

3

2

-

-

1

-

3

3

-

-

-

-

3

3

-

-

-

-

3

2

-

-

-

-

2

1

-

-

-

1

2

-

1

1

-

-

2

2

-

-

-

-

2

1

-

-

-

1

2


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29 30 31 32

33

34 35 36 37 38 39

40 41

42

43 44 45 46 47 48

Request for Investigation of Alleged Bacterial Warfare Venezuela Crimea, Ukraine Complaint by Czechoslovakia Complaint of Bombing by Air Forces on China's Territory Former Yugoslav Republic of Macedonia Georgia Incidents in the CorfuChannel Kuwait LebaneseSyria Letter from France, UK, and USA Malaysia-Indonesia Relationship (Armed Incidents) MH17 Tribunal Reports from the Atomic Energy Committee Situation Created by the Unilateral Action of the Egyptian Government Situation in Comoros Situation in Grenada Situation in Hungary Situation in Thailand Soviet Invasion of Afghanistan Ukrainian Complaint

181

2

-

-

-

-

2

1 1

-

-

-

1 -

2 1

1

-

-

-

-

1

1

-

-

-

-

1

-

-

-

-

1

1

1 1

-

-

-

-

1 1

1 1

-

-

-

-

1 1

1

-

-

-

-

1

1

-

-

-

-

1

1

-

-

-

-

1

1

-

-

-

-

1

1

-

-

-

-

1

-

-

-

1

-

1

-

1

-

-

-

1

1

-

-

-

-

1

1

-

-

-

-

1

1

-

-

-

-

1

1

-

-

-

-

1


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49 50

against Greece USA and Iran Hostage Question Yemen TOTAL

1

-

-

-

-

1

1 143

85

32

18

16

1 294

Table 5: Table Showing the Proportion of Vetoes Received by Different Number of Themes Particulars

Number of Themes

Themes receiving 1 veto in total

21

Themes receiving 2 vetoes in total

7

Themes receiving 3 vetoes in total

5

Themes receiving 4 vetoes in total

1

Themes receiving 5 vetoes in total

4

Themes receiving 6 vetoes in total

3

Themes receiving 7 vetoes in total

1

Themes receiving 8 vetoes in total

1

Themes receiving 9 vetoes in total

0

Themes receiving 10 or more vetoes in

7

total TOTAL

50


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Analysis Table 4 shows the division of all the major issues vetoed by the SC into 50 broad themes. These themes have been arranged in descending order, in terms of the total number of vetoes they have received over their lifetime. The most vetoed theme involves the question of Admission of New Members, with Russia casting the most vetoes and the total tally being recorded at 59 vetoes. On the flip side, it is hard to pinpoint the least vetoed theme as there exist a multitude of themes that have received single veto castings from a P5 member. From Table 5 it is clear that 21 out of 50 themes have received single vetoes, with seven other themes each receiving either two vetoes or more than ten vetoes in total over their lifetime.


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Conclusions Thus, 50 major themes can be said to be vetoed by the P5 members. Most of these have received single vetoes for each of the topics that are grouped within each theme. The most vetoes received by any theme is 59 vetoes, out of which 51 have been cast by Russia, once again reinforcing Russiaâ&#x20AC;&#x2122;s proclivity towards using the veto power. 4

Which are the most and least vetoed themes of every P5 member?

The way every P5 Member approaches a particular theme along with the number of vetoes it casts regarding a particular theme can clue us into its major political biases. Keeping this in mind, the following section studies every theme vetoed by every P5 Member and seeks to further analyze it. 4.1

Russia

Observation Table 6: Table Showing the Themes Vetoed by Russia along with the Number of Vetoes it has Cast Related to Every Theme over its lifetime (In Descending Order of Total Number of Vetoes) S. No. Themes Vetoed by Russia Number of Vetoes received by each theme from Russia in total over its lifetime 1 Admission of New Members 51 2 3 4 5 6 7 8

9 10

Syria Spanish Question India-Pakistan; Calling upon India to Withdraw its Forces from Goa, Daman and Diu Congo Question; Situation in Congo Complaint of Aggression against Republic of Korea; Republic of Korea/USSR Greek Frontier Incidents Complaint by USSR; Incident in which a US Air Force plane was brought down by Soviet Military Forces Complaint by Lebanon; Lebanon/Israel; Israel Proposal of the Commission on Conventional Armaments; Regulation and Reduction of Armaments

14 7 6 5 5 5 3

3 3


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11

Situation in Cyprus; Cyprus

3

12 13

Syria/Israel Bosnia; Bosnia-Herzegovina

3 2

14

Palestinian Question; Israel/Palestine; Israel; Question of the Exercise by the Palestinian People of their Inalienable Rights Indonesian Question China and Viet Nam; Cambodia and Viet Nam Letter from Chile Request for Investigation of Alleged Bacterial Warfare Crimea, Ukraine Complaint by Czechoslovakia Complaint by Guatemala; Guatemala Complaint of Bombing by Air Forces on China's Territory Georgia Incidents in the Corfu-Channel Kuwait Lebanese-Syria Letter from France, UK, and USA Malaysia-Indonesia Relationship (Armed Incidents) MH17 Tribunal Myanmar Reports from the Atomic Energy Committee Situation Created by the Unilateral Action of the Egyptian Government Situation in Hungary Situation in the Middle East

2

Situation in Thailand Situation in South Rhodesia; Situation in Rhodesia; Southern Rhodesia; South Rhodesia (Zimbabwe); Zimbabwe Soviet Invasion of Afghanistan

1 1

15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36

37

2 2 2 2 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

1


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187

Ukrainian Complaint against Greece USA and Iran Hostage Question Venezuela Yemen Total

1 1 1 1 143

Figure 15: Proportion of Vetoes Cast by Russia Towards a Number of Themes One Theme Receiving 51 Vetoes 17% 38%

9% 10%

11%

5% 10%

One Theme Receiving 14 Vetoes

One Theme Receiving 6 Vetoes Three Themes Receiving 5 Vetoes Each Five Themes Receiving 3 Vetoes Each

Analysis By analyzing the above table, it is possible to find three major trends that Russia has followed in its vetoing behaviour. • Vetoes owing to conflicts with USA: Russia, with 51 vetoes on the theme of Admission of New Members, was extremely reluctant to let any members who belonged to the Western Bloc to become a part of the SC. This was highly influenced by USA’s reluctance to let members of the Eastern Bloc become a part of the SC. This issue was ultimately resolved when members of both the Blocs were allowed to become UN Members. (Amendments to Articles 23, 27 and 61 of the Charter of the United Nations, 1965) • Vetoes owing to protection of the interests of its allies: A recurring trend in the SC is P5 Members vetoing issues that are detrimental to the interests of their allies. This has been the case with a majority of Russian vetoes, especially when it came to themes that condemn the actions of the Governments of nations such as Syria, India, Myanmar, and Indonesia, to name a few. • Vetoes owing to protection of its own interests: Russia has also cast a considerable number of vetoes to protect its own interests. These include attempts by Russia to protect itself pursuant to its involvement in the shooting down of a Korean Commercial Airline, Invasion of Czechoslovakia, and situations created in Georgia, Crimea, and Berlin, to name a few themes.


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Conclusions Most vetoes have been cast by Russia regarding the theme of Admission of New Members to the SC. Themes with single vetoes from Russia over their lifetime take up the next highest place. Russia has cast the least proportion of vetoes regarding the theme of India and its various conflicts, out of all the themes that it has vetoed. Russia, while having toned down its vetoing behaviour considerably, still remains ahead in the bid to veto. 4.2

USA

Observations Table 7: Table Showing the Themes Vetoed by USA along with the Number of Vetoes it has Cast Related to Every Theme over its lifetime (In Descending Order of Total Number of Vetoes) â&#x20AC;&#x201C; as depicted in the upcoming pages â&#x20AC;&#x201C; S. No.

Themes Vetoed by USA

Number of Vetoes received by each Theme from USA in total over its lifetime

1

Palestinian Question; Israel/Palestine; Israel; Question of the Exercise by the Palestinian People of their Inalienable Rights

29

2

Complaint by Lebanon; Lebanon/Israel; Lebanon

10

3

Namibia Question; Situation in Namibia; Situation in South Africa and the Illegal Invasion of Namibia South Africa: Called for Sanctions; Complaint by Angola against South Africa; Botswana, Zambia, and Zimbabwe: Complaint

9

4

9


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189

against South Africa; South Africa; Situation in South Africa; Expulsion of South Africa from UN Membership Nicaragua-US; Nicaragua; Letter from Nicaragua

6

Admission Members

New

6

7

Situation in the Middle East

4

8

Panama Canal Question; Panama

3

9

Letter from Libya; Letter from Libya, Burkina Faso, Syria, and Oman

2

10

Situation in South Rhodesia; Situation in Rhodesia; Southern Rhodesia; South Rhodesia (Zimbabwe); Zimbabwe Bosnia-Herzegovina; Bosnia

2

Falkland (Malvinas)

1

11

12

of

7

Islands

1


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13

Situation in Grenada

1

14

Syria/Israel

1

Total

85

Figure 16: Proportion of Vetoes Cast by USA Towards a Number of Themes

5%

6%

10%

40%

25% 14% One Theme Receiving 29 Vetoes One Theme Receiving 10 Vetoes

Two Themes Receiving 9 Vetoes Each Fourth Themes receiving 7,6,4, and 3 Vetoes Each Respectively

Two Themes Receiving 2 Vetoes Each Four Themes Receiving 1 Veto Each

Analysis By analyzing the above table, it is possible to find three major trends that USA has followed in its vetoing behaviour. • Vetoes owing to protection of the interests of Israel: Most vetoes cast by USA are to protect the interests of Israel. These are majorly related to the theme of Palestine, considering Israel’s feud with the nation over Jerusalem. (BBC News, 2019) USA’s vetoes are the major reason why Israel has been getting away with various violations of the


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rights of the Palestine people time and again, a trend that does not seem to be going away anytime soon. • Vetoes owing to protection of the interests of South Africa: USA has consistently upheld the interest of South Africa, especially in the face of proposals involving the impositions of sanctions on the nation for its illegal occupation of Namibia, one of the many reasons that led to talks about revocation of its membership from the UN, another issue that USA proactively vetoed. Though not as many times as issues involving Israel, themes related to South Africa form a major chunk of USA’s vetoes. • Vetoes owing to protection of its own interests: Just like Russia, USA itself has also been involved in various issues that have been considered by the SC to take action on. These include the tensions between USA and Nicaragua, leading to the latter complaining against the former, the military actions of USA in Panama City and regarding the status of the Panama Canal, and Air Attacks that it carried out, especially over Libya, to name a few. Conclusions USA has cast the most vetoes on themes related to Israel, followed by Southern Africa. This goes to show USA’s proclivity towards using the veto for the protection of its allies, more than anything else. Apart from the additional trend of USA protecting itself, USA does not cast many vetoes, especially single vetoes. These patterns are not likely to experience any radical changes in the coming future. 4.3

UK and France

Observations Table 8: Table Showing the Themes Vetoed by UK and France along with the Number of Vetoes it has Cast Related to Every Theme over its lifetime (In Descending Order of Total Number of Vetoes)

. S. No.

Themes Vetoed by UK

Number of Vetoes received by each theme from UK in total over its lifetime

1

Namibia Question; Situation in Namibia; Situation in South Africa and the Illegal Invasion of Namibia Situation in South Rhodesia; Situation in Rhodesia; Southern Rhodesia; South

9

Number of Vetoes received by each theme from France in total over its lifetime 7

9

-

2


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3

4 5

6 7 8 9 10

Rhodesia (Zimbabwe); Zimbabwe South Africa: Called for Sanctions; Complaint by Angola against South Africa; Botswana, Zambia, and Zimbabwe: Complaint against South Africa; South Africa; Situation in South Africa; Expulsion of South Africa from UN Membership Letter from Libya; Letter from Libya, Burkina Faso, Syria, and Oman Palestinian Question; Israel/Palestine; Israel; Question of the Exercise by the Palestinian People of their Inalienable Rights Falkland Islands (Malvinas) Indonesian Question Panama Canal Question; Panama Situation in Comoros Spanish Question Total

8

3

2

2

2

2

1

-

1

1 1

32

1 1 18


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Analysis Since UK and France have very similar vetoing behaviour, they have been grouped together for a more effective analysis. By analysing the above table, it is possible to find two major trends that UK and France have followed in their vetoing behaviour. â&#x20AC;˘ Vetoes owing to the protection of interests of Southern Africa: When it comes to Southern Africa, France and UK have increasingly colluded with USA. They have


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constantly sought to protect the interests of South Africa from sanctions, especially when it came to its illegal occupation of Namibia and its racist apartheid regime. They have also refused to allow revocation of South African membership from the UN. â&#x20AC;˘ Minimal Veto Casting: France and UK are the two P5 members who are extremely reluctant to cast vetoes. In fact, in the last 29 years of the Post-Cold War period, they have refrained from casting any vetoes. However, it is possible that they may be using the hidden veto to influence matters in their favour. France is one of the only P5 members lobbying for the restriction of the veto power of P5 Members, a movement which has garnered massive support from various other nations. Conclusions UK and France have cast the majority of their vetoes in favour of Southern African themes. Their single veto casting is even lower than that of the USA. They also do not harbour as much of a proclivity towards veto casting as the other P5 members do. In fact, it would be much easier to convince these two nations to restrict their veto behaviour as compared to the other three P5 members. 4.4

China

Observations Table 9: Table Showing the Themes Vetoed by China along with the Number of Vetoes it has Cast Related to Every Theme over its lifetime (In Descending Order of Total Number of Vetoes)

S. No.

Themes Vetoed by China

1 2 3 4

Syria Admission of New Members Complaint by Guatemala; Guatemala Former Yugoslav Republic of Macedonia Myanmar Situation in the Middle East Situation in South Rhodesia; Situation in Rhodesia; Southern Rhodesia; South Rhodesia (Zimbabwe); Zimbabwe Venezuela Total

5 6 7 8

Number of Vetoes received by each theme from China in total over its lifetime 8 2 1 1 1 1 1 1 16


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Analysis By analysing the above table, it is possible to find two major trends that China has followed in its vetoing behaviour. • Vetoes owing to opposing countries that support Taiwan: China, under its OneChina policy, considers Taiwan to be an indispensable part of the Chinese mainland and it demands that its allied nations refrain from recognizing Taiwan as an independent nation. (BBC News, 2019) However, various countries have suffered the wrath of China by maintaining friendly relations with Taiwan, and it is these countries who have been subject to China’s veto in the SC. Prominent examples include China’s veto that blocked an observer mission in Guatemala and discontinued a UN mission in Macedonia, due to the fact that these nations had demonstrated support for Taiwan in the past. • Vetoes owing to the protection of the interests of its allies: Like every other P5 member, China uses its veto power in favour of its allies. The best example of this is China’s constant vetoing of themes regarding Syria, a nation that, as mentioned before, also receives support from Russia. Hence, China and Russia have constantly cast double vetoes on a number of themes related to condemning the Syrian Government. A less prominent example would be China’s support of Aung San Suu Kyi’s ruling government in Myanmar. Conclusions Half of China’s vetoes are exclusively in favour of Syria’s interests. The remaining half is dedicated majorly to the fact that Taiwan is a sore spot for China, and will continue to remain that way till a decision is officially reached regarding its status. Chinese vetoes are one of the most concerning vetoes in recent times, with the numbers taking a massive jump.


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Which themes have been subjected to simultaneous veto casting from the P5 members?

While merely a single veto from any P5 Member is enough to obstruct an issue from reaching a final decision in the SC, certain themes have experienced vetoes from up to three P5 Members at the same time. However, this alliance formed by the members over vetoing certain issue may not always indicate a permanent stance, with members collaborating on certain themes while feuding on others. However, studying these behaviours does clue us into mutual alliances and ideologies. Observations Table 10: Table Showing the Number of Issues as well as List of Themes Subject to Simultaneous Vetoes by the P5 Members

Simultaneous

Number of Issues

Themes Vetoed with the Number of

Vetoes From

Vetoed

Vetoes

China and

12

1. Syria (8 vetoes) 2. Myanmar (1 veto)

Russia

3. Situation in the Middle East (1 veto) 4. Venezuela (1 veto) 5. Zimbabwe (1 Veto) France, UK,

12

1. Namibia Question; Situation in Namibia; Situation in South

and USA

Africa and the Illegal Invasion of Namibia (7 Vetoes) 2. Situation in South Africa; Expulsion of South Africa from UN Membership (3 Vetoes) 3. Letter from Libya (1 Veto) 4. Panama (1 Veto) UK and USA

10

1. South Africa: Called for Sanctions; Complaint by Angola against South Africa;


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Botswana, Zambia, and Zimbabwe: Complaint against South Africa; South Africa (5 Vetoes) 2. Namibia Question; Situation in Namibia (2 Vetoes) 3. Falkland Islands (Malvinas) (1 Veto) 4. Situation in Rhodesia; Zimbabwe (2 Vetoes) France and UK

2

1. Palestine Question (2 Vetoes)

France and

1

1. Spanish Question (1 Veto)

Russia Total

37 (Issues Re-

12 (Themes Receiving Simultaneous

ceiving Simulta-

Vetoes)

neous Vetoes) Analysis P5 Members have cooperated with each other while vetoing whenever one of their mutual allies’ interests required protection. Prominent examples are China and Russia vetoing issues related to Syria and France, UK, and USA protecting South Africa from sanctions. USA and Russia have never collaborated with each other, since their stance on most issues usually lie on polar opposite ends. Neither has UK ever collaborated with Russia while casting a veto. France and Russia have only ever collaborated in the initial period of the SC’s existence, when the Spanish issue was being considered. UK and France’s reluctance to veto an issue along with Russia can be explained by their allegiance towards USA. USA and China have also never collaborated on a veto, majorly since China has only started wielding its veto power recently, and because China harbours a higher allegiance towards Russia. Earlier, it was more of a silent spectator to the veto casting rather than an active participator. However, only a very specific number of themes, that is, 37 issues, have experienced simultaneous veto casting. The remaining 206 issues have, out of the total 243 vetoes, been subject to single vetoes only. Hence, only about 15% of vetoes that have been considered till now by the SC have received simultaneous, indicating that such collaborations in the SC are pretty limited. Conclusions Since merely one veto is enough to stop an issue from being considered, simultaneous veto casting is, arguably, nothing but a wasted effort. It is nothing more than an expression of


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open political support towards a particular stakeholder, such as in the case of Myanmar which is allied with both Russia and China. It would be interesting to note if these simultaneous veto castings go up in the coming years and which members strike up new partnerships while vetoing. 6

Conclusions

In the above paper, an attempt has been made to analyse the data related to veto casting by all P5 Members. This has been studied to attempt to find further trends. Merely a quantitative statistical analysis of the veto, related purely to the number of vetoes cast by every P5 Member would have rendered a merely one-sided analysis. Keeping this in mind, a qualitative statistical analysis was also carried out, which involved dividing all the 243 issues vetoed by the SC into 50 broad themes. These themes were then scrutinized, both on an overall level, as well as individually. It helped us find certain biases and attitudes that P5 Members may harbour towards themselves, their allies, as well as veto casting as an activity. This was further elaborated upon by briefly exploring the concept of the ‘hidden veto’, which posits an explanation for decreasing veto numbers. It is highly unlikely that the veto casting will be done away with anytime soon, as that move in itself will require a concurring from all 5 Members without any abstentions. Hence, it is important to keep in mind the historical trends so that future veto casting can be analyzed more effectively and efficiently. References 1. Amendments to Articles 23, 27 and 61 of the Charter of the United Nations. Schwelb, Egon. 1965. 4, s.l. : Cambridge University Press, 1965, The American Journal of International Law, Vol. 59, pp. 834-846. 2. Article 23(1), The Charter of the United Nations. United Nations Conference on International Organization. 1945. San Francisco : United Nations, 1945. 3. Article 23, The Charter of the United Nations. United Nations Conference on International Organization. 1945. San Francisco : United Nations, 1945. 4. Article 24, The Charter of the United Nations. United Nations Conference on International Organization. 1945. San Francisco : United Nations, 1945. 5. Article 27(3), The Charter of the United Nations. United Nations Conference on International Organization. 1945. San Francisco : United Nations, 1945. 6. Article 5, Treaty of Versailles. Paris Peace Conference. 1919. Paris : League of Nations, 1919. 7. Article 7, The Charter of the United Nations. United Nations Conference on International Organization. 1945. San Francisco : United Nations, 1945. 8. BBC News. 2019. Eurovision 2019: The Israeli-Palestinian situation explained. BBC. [Online] 14 May 2019. [Cited: 7 July 2020.] https://www.bbc.com/news/newsbeat-44124396. 9. —. 2017. Un Security Council - Profile. BBC Web Site. [Online] 24 August 2017. [Cited: 7 July 2020.] https://www.bbc.com/news/world-11712448. 10. —. 2019. What's behind the China-Taiwan divide? BBC. [Online] 2 January 2019. [Cited: 7 July 2020.] https://www.bbc.com/news/world-asia-34729538. 11. Resolution for the Dissolution of the League of Nations, Adopted by the Assembly on April 18, 1946. International Organization. 1947. 1, s.l. : University of Wisconsin Press, 1947, Vol. 1, pp. 246-251. 12. S/RES/4. United Nations Security Council. 1946. New York : United Nations, 1946.


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13. Security Council Report. 2015. Research Report on the Veto. s.l. : Security Council Report, 2015. 14. Sievers and Daws, Lorraine and Sam. 2014. The Procedure of the UN Security Council. Fourth. Oxford : Oxford University Press, 2014. 15. United Nations General Assembly Seventy-Third Session. 2018. Member States Call for Removing Veto Power, Expanding Security Council to Include New Permanent Seats, as General Assembly Debates Reform Plans for 15-Member Organ. New York City : United Nations, 2018. 16. United Nations. How are the non-permanent members of the Security Council selected? United Nations Library. [Online] [Cited: 7 July 2020.] https://ask.un.org/friendly.php?slug=faq/14382. 17. â&#x20AC;&#x201D;. Overview. United Nations. [Online] [Cited: 7 July 2020.] https://www.un.org/en/sections/about-un/overview/index.html. 18. â&#x20AC;&#x201D;. Preparatory Years - History of the United Nations Charter. United Nations. [Online] [Cited: 7 July 2020.] https://www.un.org/en/sections/history/history-united-nations/index.html#:~:text=The%20forerunner%20of%20the%20United,International%20Labour%20Organization%20was%20also.


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