Indic Journal of International Law, Volume 1, Issue 2 (2021)

Volume 1, Issue 2 (2021) e-ISSN: 2582-8398 September 7, 2021

Special Issue

Featuring Articles, Reports, Interviews and Commentaries of, along with Regular Articles

Confluence of Two Seas: The Emerging Geopolitics and Geoeconomics of the Indo-Pacific March 25-26, 2021 Research Conference organised by COVINTS and School of International and Area Studies, Goa University, India

Global Law Conference, 2021

Assembly

July 23-25, 2021 Research Conference organised by Global Law Assembly

The Best Podcast Interviews on International Law & Geopolitics by Internationalism Global Podcasts

Supported by

© Indic Journal of International Law, 2021

Indic Journal of International Law e-ISSN: 2582-8398 Volume 1, Issue 2 (September 2021)

© Indic Journal of International Law, 2021.

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e-ISSN: 2582-8398.

Printed and distributed online via Internationalism.in in the Republic of India.

Volume: 1 Issue: 2 Date of Publication: September 7, 2021 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, 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. © Indic Journal of International Law, 2021.

Publisher: Abhivardhan C/O Indic Journal of International Law, 8/12, Patrika Marg, Civil Lines, Allahabad, Uttar Pradesh, India – 211001 For the purpose of citation, please follow the format for the list of references as follows: 2021. Indic Journal of International and Law, e-ISSN: 2582-8398. Allahabad.

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Preface International Law is a field of specialized development and transformation towards how diplomacy and foreign policy is to be made. The role of international law in a multipolar order is subjected to instrument and gauge countries towards the realm of self-reliance and a reformed multilateralism, where trust triumphs internationalization, and conflict resolution is based on the principles of true competence instead of the abstract dynamics of power and prejudice.

The Indic Journal of International Law is a biannual law journal covering international law in a combination of theoretical and practical approaches – with its space open for global and Indic (Indian/Dharmic/Indic/Indo-Pacific) perspectives on global governance. It also provides coverage of the relationship between law and international politics in businesses, education, research and innovation practices.

In this special issue, we have published 2 important contributions, which we would to enumerate as follows.

• The papers and the commentaries of other papers presented in “Confluence of Two Seas: The Emerging Geopolitics and Geoeconomics of the Indo-Pacific”, a Research Conference organised by COVINTS and School of International and Area Studies, Goa University, India on March 25-26, 2021, and • The Conference Report of the Global Law Assembly Conference, 2021, organized by Global Law Assembly.

We have also published some of the exceptional interviews as a part of Global Hint, a show focusing on the issues of geopolitics and international law by Internationalism Global Podcasts.

I would like to express my deepest of gratitude to our esteemed Managing Editors and the Associate Editors for their contribution towards the Journal and its efforts.

Abhivardhan Editor-in-Chief Indic Journal of International Law.

Indic Journal of International Law

Acknowledgments Poulomi Chatterjee, Contributing Researcher, Global Law Assembly Dr Vignesh Ram, GLIA Advisor, Global Law Assembly Pratejas Tomar, Chief Executive Advisor, Global Law Assembly Sairaj Goudar, Research Intern, Global Law Assembly

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Table of Contents Conference Overview Reports • Confluence of Two Seas: The Emerging Geopolitics and Geoeconomics of the Indo-Pacific, COVINTS and School of

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International and Area Studies, Goa University, India Global Law Assembly Conference, 2021, Global Law Assembly

Special Edition Articles - “Confluence of Two Seas: The Emerging Geopolitics and Geoeconomics of the Indo-Pacific”, a Research Conference organised by COVINTS and School of International and Area Studies, Goa University, India on March 25-26, 2021 1.

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Beyond the Economy: Blue Economy and Multilateralism - Divyali Mehrotra Reoriented ‘BIMSTEC’ at the Heart of Reconceptualized Regionalism in the Indo- Pacific - Anisree Suresh

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India- Iran Relations: Implications for Maritime Security in the Western Indian Ocean - Rishi Athreya

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Approach of International Judicial Bodies Towards Cultural and Human Rights - Sakshi Trivedi Self- Regulation of Multi-National Companies - Aakriti Jaipuriar

Technical Articles 4.

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International Criminal Law and the Governance of Issues Related to Terrorism - Anoushka Chauhan Armouring the Climate: QUAD’s Approach to Protecting the IndoPacific - Poulomi Chatterjee

Case Comments 8. Dispute Concerning Delimitation of Maritime Boundary Between Mauritius and Maldives in the Indian Ocean- Rajluxmi Joshi

7.

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Armed Activities on the Territory of Congo (The Democratic Republic of the Congo vs. Uganda)- Richa Vyas, Ananya Srinath & Tvisha Vadhul

Interviews Analysis for Global Hint by Internationalism Global Podcasts 10. Russia and the Construct of the Indo- 12. Decoding Various Indo- Pacific Pacific Strategies 11. Deciphering Risk Assessment in a 13. A War of Empires: Japan, India, Multipolar Geopolitical Order Burma and Britain (1941-45) 14. The Good Country Equation

The Journal Team Editorial Board Abhivardhan, Editor-in-Chief Manohar Samal, Chief Managing Editor Akash Manwani, Special Associate Editor Ayush Mishra, Senior Associate Editor Sathyajith MS, Special Associate Editor Shikhar Yadav, Junior Associate Editor Mridutpal Bhattacharya, Consulting Editor

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Conference Reports

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Confluence of Two Seas: The Emerging Geopolitics and Geoeconomics of the IndoPacific, COVINTS and School of International and Area Studies, Goa University, India Introduction The Indo-Pacific continues to unravel as a key regional geopolitical concept having a key impact on all major powers around the world. The shifting focus on the Asian continent in the past decade has often been driven by the shifting axis of global power towards the ‘East’ from the west. However, beyond the confines of semantics driving geopolitical considerations, the evolution of the power matrix in the east has been largely fluid at times defined by powers external to Asia or convenient to rising powers to shape the narrative by maintaining a status quo. In this context the Indo-Pacific has emerged as closest to real conceptualization which has a geopolitical as well as geoeconomic system shaping ability.

There have also been growing fissures in terms of individual states’ policy in designing a positive and inclusive architecture in the Indo-Pacific region.

While on the security side, the semblance of view against the increasing assertiveness of China seems to be gaining momentum in the form of military posturing, the economic challenges in integrating the approach seems to be an emerging challenge. The multiple viewpoints over trade agreements proves to be a challenge in this regard. The increased Anti-China sentiment in the region has been brewing ideas about increased diversification of supply chains away from China. The Supply Chain Resilience Initiative (SCRI) is a case in point about the same. The inability to predict political behaviour of China has further brought nations together. Similarly, the inability to conduct a comprehensive Free Trade Agreement in the form of Regional Comprehensive Economic Partnership (RCEP) which excludes India (pending future negotiations due to the altered geo-economic climate) will prove to be another challenge.

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The future solidification of the Indo-Pacific concept will be driven by the requirement for a growing consensus of multiple stakeholders on contentious divergent issues including trade, alliances and resources sharing. Another important aspect of the collaboration would be to understand the future scope of formalization via institutionalization of the grouping. Therefore, understanding the gradually developing normative basis for the conceptualization will also be important to understand.

Objectives of the Conference • To understand the Geopolitical and Geo-Economic developments in the Indo-Pacific region • To identify the risk factors in the Indo-Pacific and its impact for regional stakeholders including states, businesses, militaries, societies • To evaluate the prospects and challenges in developing an institutional and normative framework in the Indo-Pacific • To assess the way forward in carrying out a qualitative framework in the regional process The Conference was held virtually on March 25-26, 2021 by COVINTS and School of International and Area Studies, Goa University, India. Following is the list of the Speakers of the Conference:

25 March 2021 Day 1 10:00 hrs – 11:00 hrs – Keynote Address – Prof Varun Sahni – Geopolitics in the Indo-Pacific Century (TBC)

Working Session 1

11:00 hrs – 12:45 – The Evolving Indo-Pacific Security Architecture Chair: Commodore Sheshadri Vassan, Director Chennai Centre for China Studies • 11:00 – 11:15 – Comments by the Chair • 11:15 – 11:45 - Dr Anand V, Assistant Professor, Department of Geopolitics and International Relations, Manipal Academy of Higher Education – China and the Quad – Deciphering the dynamics of the emerging Geopolitics

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11: 45 – 12:15 - Dr Sana Hashmi - The possibility of a 'Quad Plus' A focus on Taiwan in the extended Quad 12:15 – 12:45 – Q&A

Working Session 2

13.30- 14.45 - The Evolving Security Calculus in the Indo-Pacific Chair: Lt Gen AB Shivane, Former DG, Mechanised Forces, Indian Army and Advisory Member, COVINTS Network • 13:30 – 13:45 – Comments by the Chair • 13:45 – 14:15 - Dr Uma Purushothaman, Assistant Professor of International Relations at the Central University of Kerala - India’s Indo-Pacific Reorientation • 14:15 – 14:45 - Mr Uday Patil, Doctoral Candidate in Geopolitics and International Relations, Manipal Academy of Higher Education - US Indo-Pacific Strategy: From Trump to Biden • Dr Satoru Nagao - Japan’s policy in the Indo-Pacific (TBC)

Working Session 3

15.00- 16.30 - Maritime Security and Indo-Pacific borderlands Chair: Cdr. Jayakrishnan Nair, Defence Research and Studies (DRaS) (TBC) 1. Dr Nanda Kishor, Head of the Department, Department of Geopolitics and International Relations, Manipal Academy of Higher Education, Manipal - On the borders of the Indo-Pacific (West Asia and East Africa in the Indo-Pacific security calculus 2. Mr Rishi Athreya, Researcher at Asia Centre Bangalore - India-Iran Maritime cooperation in the Indo-Pacific

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26 March 2021 Day 2

Working Session 1 10:00- 11:30 - Non- Traditional Security Challenges in Indo-Pacific Chair: Ms Cleo Paskal (TBC) 1. Dr Alvite Ningthoujam – Assistant Professor, Symbiosis School of International Studies - The Security Dynamics of the Indo-Pacific 2. Dr Dhanasree Jayaram – Assistant Professor, Department of Geopolitics and International Relations, Manipal Academy of Higher Education and Coordinator Centre for Climate Studies, MAHE – Understanding the Climate Change Dynamics in the IndoPacific

Working session 2 11:45-13:30 - Trade Dynamics in the Indo-Pacific/Geo-economics in Indo-Pacific 1. Ms Divyali Mehrotra - MA: International Relations and Affairs, Goa University and Diploma in French and European Studies (DFES), Sciences Po Lyon - Institut d'Etudes Politiques, Lyon, France - Blue Economy and Multilateralism in the Indian Ocean 2. Professor Dattesh D Parulekar, Assistant Professor, School of International and Area Studies, Goa University – The Geoeconomics Conundrum in the developing Indo-Pacific dynamics 14.00- 15.30 - Regionalism in the Indo-Pacific Session Chair: Prof. Aparajita Gangopadhyay, Professor, School of International and Area Studies, Goa University

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1. Anisree Suresh -International Studies (2019-2021), Goa University Reoriented ‘BIMSTEC’ at the Heart of Reconceptualized Regionalism in the Indo-Pacific 2. Dr Vignesh Ram, Division Head, Political Risk and Intelligence Services Management (PRISM), COVINTS Network, Bengaluru ASEAN in the Indo-Pacific dynamics 15:45 – 16:45 – Special Roundtable on the Future of India in the Indo-Pacific: Geopolitics, Geo-economics and Security Prof. MD Nalapat – UNESCO Peace Chair and Honorary Director, Department of Geopolitics and International Relations, Manipal Academy of Higher Education Shri Jayadev Ranade Dr Jaganath Panda

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Global Law Assembly Conference, 2021 Introduction Global Law Assembly Conference is a continuation to The Juris En Conference on International Law, 2020, organized by the Secretariat of Global Law Assembly. The conference was held virtually on July 23-25, 2021.

This report is jointly prepared by: Pratejas Tomar, Chief Executive Advisor, Global Law Assembly Sairaj Goudar, Research Intern, Global Law Assembly Following were the speakers for the Conference: Prof. (Dr.) J.K Sharma VC, Baddi University Akshobh Giridhardas Visiting Fellow, Observer Research Foundation Vivek Acharya IFS Officer Vinod Saxena Professor (Retired), Amity University, Lucknow Lt Col Prashant Mishra (Retd) Army Veteran and Defence Consultant Pallav Pradyumn Narang Partner, CNK RK & Co. Parthsarathi Jha Partner at Economic Laws & Practice Krishnan Chakravarty

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Defence Analyst Rishap Vats Visiting Faculty at NMIMS Mumbai Kartikey Vipul Misra Advocate and GLIA Advisor, Global Law Assembly Bhavana J Sekhar Principal Researcher, Indic Pacific Legal Research LLP

The Themes of the Conference I

STRENGTHENING MULTILATERALISM BEYOND THE OECD-G20 FOR TACKLING BASE EROSION AND PROFIT SHIFTING TAX AVOIDANCE PRACTICES Global Governance and International Taxation Law Background The 2008 financial crisis and successive tax scandals acted like a wake-up call, for globalization had brought many benefits to the world but people and governments realized that it had also facilitated tax evasion and avoidance resulting in a strong sense of unfairness. Bank secrecy and lack of transparency helped high net worth individuals hide their assets offshore, loopholes in the international tax rules also allowed multinationals to artificially yet legally shift their profits to low or no tax jurisdictions. Governments had to take action; international cooperation was vital to introduce some form of tax regulation to globalization.

Scope The panel is recommended to discuss the following ● OECD International VAS/GST guidelines.

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Proposal for Country by Country Reporting projects for increased transparency.

How Countries/Governments can coordinate and make changes in Domestic laws.

Treaty Shopping through Letter companies and how to stop them.

Purpose Funds parked by Indian individuals and firms in Swiss banks, including through India-based branches and other financial institutions, jumped to 2.55 billion Swiss francs (over ₹20,700 crore) in 2020 on a sharp surge in holdings via securities and similar instruments, though customer deposits fell, annual data from Switzerland's central bank revealed. This is a major concern and more efforts and laws need to be implemented to to stop such practises.

II REFORMING INTERNATIONAL LAW TO DEAL WITH COMMERCIAL SPACE ACTIVITIES International Space Law and Commercial Law Background The Outer Space Treaty was considered by the Legal Subcommittee in 1966 and agreement was reached in the General Assembly in 1967. The Treaty was largely based on the Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space. As of today, close to 80 UN Member States have established space agencies and in 2020, the space community launched a record number of satellites, surpassing the 1,000 threshold for the first time ever - breaking the previous high set in 2019.

Scope

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The panel is recommended to discuss the following ● Antrix - Devas dispute, What went wrong and what can be done now. ● New education regime to teach law students about International Space Laws. ● New education regime for students in High Schools and Middle schools, for them to have a vision of what the future can hold and the possibilities that come with it. ● Space traffic management, specifically the satellites that revolve around the earth's orbit. ● Indian SATCOM policies and how Government intervention and Lack of transparency became its roadblock for robust private participation.

Purpose As technology advancements are taking place, and major players like Jeff Bezos and Elon Musk have started taking interest in Space Exploration, it is of imminent need to have International Law that can help maintain Rule of Law in International Space. One major reason for that is the only rule right now governing International Law for Space activities is from the Outer Space Treaty that was held in 1967. Since then many new changes have been observed in this emerging “Industry”, hence the need for new reforms.

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III INTERNATIONAL COMMERCIAL ARBITRATION AND NATURAL RESOURCES International Environmental Law and Commercial Law Background The UN for Arbitration of Disputes Relating to the Environment and/or Natural Resources was adopted in 2001. These Rules were drafted by a working group and committee of experts in environmental law and arbitration in order to address the principal lacunae in environmental dispute resolution. The UN for arbitration of Disputes Relating to the Environment and/or Natural Resources was adopted in 2002. The Environmental Rules for arbitration and conciliation provide the most comprehensive set of environmentally tailored dispute resolution procedural rules presently available. The Environmental Rules are referred to in a treaties and contracts, such as the 2003 Protocol on Civil Liability and Compensation for Damage Caused by the Transboundary Effects of Industrial Accidents on Transboundary Waters and the Model Emissions Reduction Purchase Agreements developed by the International Emissions Trading Association.

Scope There are several reasons why arbitration has become the preferred means of settling international disputes all around the world: ●

●

Arbitration is efficient and expeditious. The process is quicker and cheaper as compared to the alternatives, usually litigation before national courts.

Arbitration is expertise. One of the critical features of arbitration is that parties are able to choose their arbitrators, who may have particular commercial experience or specialized experience in specific industries, for example construction or commodities or international law.

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Arbitrators are also particularly expert in terms of procedures, and can manage the process to ensure the arbitration proceedings precede both expeditiously and fairly.

Arbitration is even-handed and perceived as neutral. Meaning that the arbitrators are independent of the parties and will hear the dispute impartially.

Arbitration is enforceable. Arbitral awards have an enforceability premium, particularly under the New York Convention, which I will discuss in greater detail later, which allows the enforcement of arbitral awards in over 165 different countries. This makes arbitration superior to the available alternatives, being national court litigation, because judgments are not as easily enforced. There is no real equivalent to the New York Convention for court judgments.

Purpose The aim of the international commercial law with energy law, policy and natural resources is to provide you with a strong commercial awareness to do deals and understand the impact of regulations and the fast-growing area of energy dispute resolution. How climate change policy is affecting the business of energy and how environmental policy is driving epic change in renewable and in the global energy architecture. The pathway enables you to develop an understanding of law and commercial dimensions with applications to clean tech and the proliferation of energy disputes taking place. You will be well equipped to understand the brave new world of energy and be in a strong position to secure jobs in this fastgrowing global area.

IV PREPARING THE INDIAN FOREIGN SERVICES FOR THE INDO-PACIFIC Indian Diplomacy, Constitutional & Administrative Policy and QUAD studies

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Background Indian foreign policy is in the throes of change. It has begun its evolution from the days of coveted non-alignment, towards a diplomatically sound multi-alignment. A quintessential part of this process of evolution has to do with India strengthening its footing in the Indo-pacific. An area that is both strategically indispensable and commercially unavoidable. India’s position in the Indo-Pacific naval and trade corridor has increasingly raised many eyebrows as the nation starts asserting its dominance in South Asia.

Additionally, the QUAD and other alliances, based in and around the Indo-Pacific, look onto the regional powers for not only logistical help but diplomatic support. With the growing nervousness over the future of the South China Sea dispute, it is quite clear that the region is bound to attract more than its fair share of attention in the coming years. China’s growing influence around the world has ensured that the international community has grown wary of this power. Therefore, alliances like the QUAD come into the picture. Though initially painted as an alliance that is mostly commercial and slightly military, its real purpose has always been to curb the threat of unchecked dominance of China in the world and specifically, in the Indo-Pacific. India’s foreign service, therefore, must brace itself for the strategic battleground of the future and equip itself for what may come.

Scope While the Indo-Pacific, in no manner is reflective of India being connected to the “Indo” reference in the terminology, which is actually the representation of the Indian Ocean; one cannot but recognize that the coinage of the term was centred around a prominent role India has to play for the success of a US-led, Japan initiated Indo-Pacific maritime and security strategy. The QUAD, specifically, acts as a torchbearer in the region since it involves the representation of three regional powers (India, Japan, Australia) facilitated by a global superpower (United States).

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The Indian Foreign Services’ scope in this region lies in keeping its planned policy intact, isolated from and independent of the internal changes in govt or of Prime Ministerial Foreign policy and treat the matter as a national interest issue than making it a party-dictated stance. Secondly, it can also ensure that it extracts as much as it can in international commercial and strategic agreements from individual nations in these alliances and so far, it has managed to do just that. One such example of India clinching deals with individual QUAD countries is that of its relationship with Japan. In 2016, India and Japan signed a record agreement worth 33.5 billion dollars. In return, India promised to introduce a special mechanism like a “Japan Fast Track Channel for Japanese investors in India” to woo investment into the country. To capitalize on alliances by leveraging the Indian market opportunities for further influence in the regional space and at the global stage is what the Foreign Services must be able to foresee.

Purpose The Indo-pacific has always been an important region, but its specific significance now has yet to dwindle with the debates of our mainstream.

In contrast to these abnegating trends, the existence of this theme at Global Law Assembly Conference – 2021, looks to suggest the pivotal role that the foreign service plays in being able to implement diplomatic policy that the government of the land devises. In understanding the underlying influence of our esteemed and sought-after Foreign Service and suggesting ways to prepare it for the Indo-Pacific & other strategic zones that are important to India, this theme will have served its purpose.

V THE ROLE OF PRIVATE CITIES DEVELOPMENT Private Policy, Private International Law and Public Policy Background

IN

GLOBAL

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After the collapse of the Western Roman Empire in the 5th century CE, Europe suffered from frequent warring for nearly 500 years. Eventually, a group of nation states emerged, and a number of supranational sets of rules were developed to govern interstate relations, including canon law , the law merchant , and various codes of maritime law—e.g., the 12thcentury Rolls of Oléron, named for an island off the west coast of France, and the Laws of Wispy , the seat of the Hanseatic League until 1361. In the 15th century the arrival of Greek scholars in Europe from the collapsing Byzantine Empire and the introduction of the printing press spurred the development of scientific, humanistic, and individualist thought, while the expansion of ocean navigation by European explorers spread European norms throughout the world and broadened the intellectual and geographic horizons of Western Europe. The subsequent consolidation of European states with increasing wealth and ambitions, coupled with the growth in trade, necessitated the establishment of a set of rules to regulate their relations. In the 16th century the concept of sovereignty provided a basis for the entrenchment of power in the person of the king and was later transformed into a principle of collective sovereignty as the divine right of kings gave way constitutionally to parliamentary or representative forms of government. Sovereignty also acquired an external meaning, referring to independence within a system of competing nation-states.

Scope Partnering with the private sector could: ● ● ● ●

extend services into poorer or informal communities provide safer workplaces, promote adoption of non-discriminatory employment policies help the poor access credit, and boost investment in low-cost housing.

The privatization of Manila’s water authority highlights that partnerships among urban stakeholders need to be based on a

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thorough understanding of community needs and pursued in tandem with other initiatives.

In both contexts, the private sector actively sought out partnerships with residents of informal settlements, NGOs and municipal governments. These collaborative ventures involved information, education and community campaigns to ensure that residents of informal settlements were involved and had some ownership of programmers. They also sought to provide assistance to the poorest families through the provision of micro-finance.

Purpose The impact of COVID-19 will be most devastating in poor and densely populated urban areas, especially for the one billion people living in informal settlements and slums worldwide, where overcrowding also makes it difficult to follow recommended measures such as social distancing and self-isolation.

Interactive planning and decision-making processes are needed to support private sector participation in urban governance and to coordinate this participation with municipalities. Pie terse comments that municipalities can strengthen urban governance in co-operation with the private sector by fostering partnerships and local economic development strategies that combine local skills, resources and ideas to stimulate the local economy, enabling it to respond innovatively to national and global economic changes The main objective of the private sector is to earn profits and become a leading organization in their line of business. To enhance this objective, most of the private sectors have embraced technological advancements where a business is operated online. E-business is one of the current advancements where a business can advertise, market and make sales through the Internet. The business has to share its information online to attract a large pool of potential customers. For example, effective strategies detail how the municipality will: ●

Develop and maintain infrastructure and services;

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Promote and expand existing businesses; Address inefficiencies in the local economy; Promote human capital development, to help vulnerable groups, especially to participate in the labour market.

Promote small, micro and medium enterprises (SMME) through supply-side measures and demand-side Attract investment in the city.

Encourage community development by promoting community business and co-operatives, local exchange systems and informal credit etc.

VI

IMPROVING MULTILATERAL EFFORTS FOR ISSUES RELATED CROSS-BORDER INSOLVENCY & CORPORATE DEBT RESTRUCTURING Insolvency Law and International Corporate Governance Background In 1933, the Nordic States of Denmark, Finland, Iceland, Norway and Sweden concluded a convention regarding bankruptcy. This convention was later amended in 1977 and 1982. The convention provided for amalgamation of assets into one estate and distribution according to the rules of the State where proceedings were opened in the bankrupt’s residence or registered office. It provided for recognition of bankruptcy proceedings in other states, judicial assistance, and recognition of judicial decisions. In Europe work started in 1894 as part of the Hague Conference and in 1928 it was decided to transform the multilateral convention into a model bilateral treaty, which saw very little adoption.

The Council of Europe concluded the European Convention on Certain International Aspects of Bankruptcy in 1990, which provided for ‘main’ and ‘secondary’ bankruptcy proceedings. In May, 2002 EU Regulation 1346 came into force repealed in May 2015 by the Regulation (EU) 2015/848 and issued a ‘Recommendation of 12.3.2014 on a New

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Approach to Business Failure and Insolvency.’ Regulation 1346 provided uniform rules for the settlement of cross border insolvencies and focused on coordinating insolvency proceedings as they existed in member states rather than creating uniform rules, whereas Regulation 848 and the Recommendation ‘signal the new approach.’ The objective is to foster the creation of a homogenous legal framework for business restructurings across the EU while also striving to promote a common and uniform legal, economic, and financial environment between the European Union and the United States. The latest EU Regulation also is short on cooperation with non-EU countries in insolvency matters.

Scope This introduced a new restructuring and insolvency regime for corporate entities. Although the instrument is relatively new, it has already undergone multiple legislative changes. It has also created a new specialist ecosystem relating to the restructuring and insolvency of corporate entities, with the Insolvency and Bankruptcy Board of India as the regulator and insolvency professionals as the administrators of the process. As the code is still in its infancy, it is continuously evolving - as is the infrastructure surrounding it, including specialist advisers.

The specialist tribunals that handle insolvency and liquidation proceedings for corporate entities and voluntary schemes of arrangement are the National Company Law Tribunal and the National Company Law Appellate Tribunal. The NCLT has benches across the country. The specialist tribunals that will handle insolvency and bankruptcy proceedings for individuals and partnerships are the Debt Recovery Tribunal and the Debt Recovery Appellate Tribunal.

Purpose The objective in developing the Model Law was to establish a set of uniform principles that would deal with the requirements which a foreign insolvency representative would need to meet in order to have access to the courts of other countries in cross-border cases. The Model Law

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Project, however, evolved into a much broader work and ultimately became an agreed-upon international model for domestic legislation dealing with cross-border insolvencies that could be adopted anywhere in the world with or without variations that would reflect local domestic practices and procedures the International Insolvency Institute The primary goal of the Model Law is to facilitate domestic recognition of foreign insolvency proceedings and to increase international co-operation in multinational cases. Foreign insolvency proceedings are divided into two categories in the Model Law, i.e., “main” proceedings and “nonmain” proceedings. A main proceeding is one which takes place in the country where the debtor has its main operations. If the foreign proceeding is recognized as a main proceeding, the Model Law provides for an automatic stay of proceedings by creditors against the debtor's assets and the suspension of the right to transfer, encumber or otherwise dispose of the debtor's assets.

VII PROPOSAL FOR THE INDIAN TEACHING SERVICES FOR DEVELOPING INDIA'S KNOWLEDGE-ECONOMY Knowledge Economy Studies Background Knowledge economy is a system of consumption and production that is based on intellectual capital. It refers to the ability to capitalize on scientific discoveries and applied research. This has come to represent a large component of all economic activity in most developed countries.

With sustained use and creation of knowledge at the center of the economic development process, an economy essentially becomes a Knowledge Economy.

It has been found that the successful transition to the Knowledge Economy typically involves elements such as long-term investments in education, developing innovation capability, modernizing the information infrastructure, and having an economic environment that is conducive to

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market transactions. These elements have been termed by the World Bank as the pillars of the Knowledge Economy.

Scope The panel is recommended to discuss the following ● Long term strategies - All India Council for Technical Education and their policies like, AICTE Quality Initiatives in Technical Education, Comprehensive Training Policy for Technical Teachers, AICTE Internship Policy: Guidelines & Procedures.

Purpose Basic education is necessary to increase peoples’ capacity to learn and to use information. On the other hand, technical secondary-level education, and higher education in engineering and scientific areas is necessary for technological innovation. Thus , in order to make sustained growth for a country and need to make leaps in R&D and Knowledge based innovations one needs to focus on building a Knowledge based economy.

VIII THE NEED TO DEVELOP EFFICIENT DEFENCE/AEROSPACE FIRMS IN INDIA Defence and Strategic Studies

PRIVATE

Background The increasing privatization of space activity is no distant dream but a lived reality today. With the recent spaceflight of British Billionaire Richard Branson and a similarly scheduled expedition of Jeff Bezos are both indicative of this change in space resource control. These are followed by many other private players coming into the business of defence and aerospace, that supplement governmental activity in these fields or marginally supplant them.

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Over recent years, advances in computing capabilities have enabled satellite builders to make smaller and lighter craft, such as the SpaceX Falcon 9 rocket, which has slashed launch cost per kilogram by 85% compared to 20 years ago. Similarly, in India, public-private defence contracts are not a rare occurrence anymore. These defence contracts are formed mostly at govt request and their performance is usually under absolute government control and supervision. With space, in 2017, India launched a record breaking 104 satellites in a single mission, most of which were privately-owned satellites.

Scope This privatization of defence & space activities, unfortunately, is not helped by the absence of well-equipped laws to govern and regulate them.

The 1967 Outer Space treaty, for example, laid out basic rules of spacefaring but had nothing to say about private entities. India needs to look at developing private defence and space agencies that are given the freedom to operate after the setting up of regulatory guidelines that maintain checks on their activities.

Through their support of such companies in the commercial space industry, India can wield some influence at the bargaining table of the future. In the sense that since no broad-sweeping set of regulations or customary international law on space activities has been devised yet, India can leverage their dominance to enjoy more of the drafting rights and rule setting, traditionally reserved for countries who are a major stakeholder in the field.

Purpose This theme has been brought into the Global Law Assembly Conference – 2021, as an attempt to picture India’s future as a strategic faction, in line with the interests of its corporations. This theme also necessarily tries to chart out a roadmap of how Public-Private partnerships can be made cooperative and healthily indispensable. It draws upon the various sub-topics of conversion that haven’t been a part of mainstream discourse. In igniting

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that conversation into these areas and suggesting ways to gauge the situation, the theme will have served its purpose.

IX THE CREDIBILITY IN QUESTION OF THE INDIA-US RELATIONS AND THEIR SOFT POWER CONUNDRUMS Indo-US Relations and Indian Diplomacy Background Relations between India and the United States have often been dictated by the currents inherent in their own national politics. It was first grounded in India’s reluctance in picking a side during the Cold war and harking back on Non alignment. It then progressed into economic partnership after the Soviet Union fell in the same year that India opened its doors to the world economy. The United States and India, thereon, came to be known as ‘natural allies’ while India solidified its position in the global politique.

Recently, India came out of its last vestiges of global isolation after the country began achieving a rate of growth close to 10% and India joined the G20 at the heads of government level. This trend of closeness in the relationship of India and USA continued until the trump trigger appeared in the latter. Under President Trump, the “nationalist” trope of the US began demanding for a more unflinching “America centric” diplomacy, neglecting international commitments and undoing years of progress between the two countries. Off late, under the renewed leadership of President Biden, New Delhi has become a priority in the region; strategically, militarily and commercially.

Scope All three aspects of strategy, military and commerce, come with the ‘image’ or the “soft power” that India has managed to build for itself, since independence and more recently, through its assertion of an ancient

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culture and the experiment of “vaccine diplomacy” that India attempted during the pandemic. These soft power advantages are aplenty with a diverse and constitutional democracy like India but with these advantages, there come soft power conundrums of a marginal level that either act as crevices in policy or end up causing further damage to policy after its adoption.

If India does indulge in increased soft power capabilities and solve its underlying problems of image and COVID management, there are multiple avenues that might open up for it in the international arena. But more importantly, with the nomination of Biden’s close ally, Eric Garcetti to the post of Ambassador to India, White House recognises the importance of India in building a sound American foreign policy.

Purpose Emphasis on India, automatically means that this theme serves as the launchpad of discussing the cornerstone of India’s future prospects.

Namely, its efforts in building a soft power capability and its attempts at deepening the already healthy relationship it enjoys with the US. This, coupled by the existence of transnational alliances like the QUAD, the theme looks to generate new debate around the multiple layers and avenues around the India-US relations and their bright future, for now.

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Beyond the Economy: Blue Economy and Multilateralism in the Indian Ocean Divyali Mehrotra Goa University, India ORCiD: https://orcid.org/0000-0001-8972-0562 divyali.mehrotra07@gmail.com

Abstract. Oceans cover over 70 per cent of our planet's surface and enhance more than 80 per cent of global trade. Considering how important the oceans are as a resource for humankind, the concept of Blue Economy became widely used, thereby acknowledging and recognising the need for sustainable use of oceanic resources for the benefit of humankind. In the development of oceans, Blue Economy adopts the principles of the green economy to include low carbon emissions, resource efficiency and social inclusion. It is also part of the Sustainable Development Goals (SDG) as Goal 14. Therefore, the Blue Economy, as a concept, has become a guide for maritime and foreign policy. In a time where the focus of the international community is on public health and the economy, in relation to the coronavirus pandemic, the world also seems to be preoccupied with regional stability and connectivity. Our national security not only depends on traditional security policies but also on our multilateral ties, our ability to cooperate and sustainability in our practices. Multilateralism is imperative in the Indo-Pacific and the Indian Ocean as the region is marked by political tension, and intensely competing ideological narratives. Therefore, in these circumstances, multilateralism is a tool that can help countries defuse tensions and build common understandings of shared challenges. Focusing on protecting biodiversity and promoting sustainability opens new avenues for regional and global cooperation.

Therefore, a comprehensive and structured blue economy policy for the region has the potential to foster peace, cooperation and stability. This paper attempts to address the issues of developing the Blue Economy in the Indian Ocean Region, and its potential as a tool for multilateral cooperation, economic relations and collaboration to build a secure and stable regional network.

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Keywords: Multilateral Cooperation, Indian Ocean Region, Blue Economy

Introduction The countries of the Indian Ocean Region (IOR) have been consistently pushing toward growth and development of their economies and people. As a result of this, the region has become one of the most promising economic areas and a highly politically charged arena, amidst rising security issues regarding the militarisation of ocean spaces, trade routes and the race for hydrocarbon and mineral resources. Under these circumstances, the concept of the “blue economy” presents a unique opportunity for the countries of the IOR to reframe their approach towards managing the oceanic resources. The economic benefits of the blue economy are several. However, the potential it holds as a political tool for cooperation and the promotion of multilateralism is quite under- appreciated.

By developing a comprehensive strategy, the countries of the Indian Ocean can optimally utilise the potential of the blue economy to build a more sustainable future, to grow their economies and to strengthen ties with other nation-states (Mittra, 2017).

The term “blue economy” refers to the sustainable usage of ocean resources, targeting the conservation of oceans and a higher level of productivity. The blue economy principles adopt the concept of “green economy” which include low carbon emissions, resource efficiency and social inclusion. It is also a prominent feature of the Sustainable Development Goals (SDGs). This is apparent from Goal 14 which reads as, “to conserve and sustainably use the oceans, seas, and marine resources for sustainable development” (Mittra, 2017). Such international support for the development of the economies has gained further strategic importance. Blue economies are endowed with marine resources that serve human settlements in many different ways by providing several essential products in the form of food, energy, biodiversity, and even medications. Coastal nations are dependent on oceans for fishing, mineral exploration, oil and gas extraction, rare earth mining and other sources to earn livelihood. In this context, the role of the blue economy is especially important for coastal nations and small island developing states. The Indian Ocean Region, in particular, has a diverse portfolio of rich ocean resources and serves as a link for major trade routes, investment and technological collaboration between littoral states. Indian Ocean is a major sea route for the world which connects India, China, East Africa, South Asia and the Middle East.

The littoral states of the Indian Ocean Rim Association (IORA), have lately been emphasising the importance of harnessing the blue economy for the overall development in the region. Blue economy initiatives have been pushed in the

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international forum by the Small Island Developing States (SIDS) mainly because of the long coastlines and heavy dependence of the SIDS on the ocean for their livelihoods. SIDS that are members of IORA, such as Seychelles and Mauritius had previously introduced measures toward promoting the blue economy as part of their maritime strategy (Voyer et al., 2018).

The concept of blue economy has been governing the discourse regarding ocean resources since its emergence in 2012 at the United Nations Convention on Sustainable Development (UNSCD); also referred to as the Rio +20 Conference.

At the conference, the concept was promoted as part of the larger dynamics of the green economy, aimed at improving human well-being and social equality while significantly reducing environmental risks and ecological scarcities (Voyer et al., 2018). Since then, there has been a growing interest in the concept.

However, the term is still employed differently in different concepts and lacks a universal definition. Regardless of this, it is globally accepted that it involves the sustainable usage of ocean resources and the reduction of environmental risks (World Bank and United Nations Department of Economic and Social Affairs, 2017). The concept of the blue economy is still in its infancy, but countries seem to be adopting it and are increasingly realising its importance in recent times. This can be seen in regional initiatives such as the 2050 Africa’s Integrated Maritime Strategy (2050 AIM-Strategy), the declaration of the decade of African Seas and Oceans (2015–2025), and Africa’s Blue Economy: A Policy Handbook (UNECA, 2016). All of the above recognise and show interest in the blue economy as a pathway for sustainable development (World Bank and United Nations Department of Economic and Social Affairs, 2017). The Indian Ocean Region (IOR) is an extremely important area for the development of a strong blue economy. The competition amongst the nations over the marine and ocean resources for their developmental needs highlights the importance for a strong regional, multilateral cooperation to allow for peaceful and sustainable livelihoods. A comprehensive definition of the blue economy might be the first step toward strengthening the blue economy in the IOR.

Untested Waters: Various Definitions of Blue Economy

Covering nearly three-fourths of the Earth’s surface, oceans comprise the world’s single largest ecosystem. It therefore, also becomes a large arena for emerging complex and interconnected issues that link all the nations of this planet together.

The oceans are a great space for collaboration for several issues such as climate change, livelihood, commerce, industry, economy and security. Humanity’s

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relationship with ocean-space and its utilisation of resources has evolved in many important ways over the years (Roy, 2019). Oceans are an important source of food, energy and essential products like medicines. With the advancement in science and technology, ocean resources have now become a source of goods and services that are vital for life on Earth. Moreover, it provides food, minerals, absorbs greenhouse gases, mitigates the negative effects of climate change, generates oxygen, determines the weather patterns and serves as important routes for trade and international shipping, which are crucial to the global supply chains and the ability of the global markets to function. A blue economy seeks to promote economic growth, social inclusion and preservation and improvement of livelihoods while ensuring environmental sustainability. It requires the decoupling of socioeconomic development through ocean related sectors from environmental degradation (Voyer et al., 2018). Due to its importance, it employs a vast number of people and has become the main source for income for several sectors. According to the Global Ocean Commission, ocean resources account for 5 percent of the world’s Gross Domestic Product (GDP) and are a source of employment for three billion people and important for the livelihood of 350 million people (Voyer et al., 2018). Often referred to as “marine economy”, “coastal economy” or “ocean economy”, there are some differences in approaches with reference to resource management, sustainability and social equality, from what the term blue economy encompasses. Ocean economy refers to the decoupling of socio-economic development from any form of environmental degradation. It can therefore be understood as a subset of the economy that is dependent on the ocean for its production process, based in coastal and non-coastal areas. Coastal economy, on the other hand, is larger than ocean economy and includes concentration of activities on or around the coastal areas and is a total of all activities relating to output, employment and wages in the coastal region. Finally, the marine economy is an economy that includes commercial seafood, marine transportation, coastal tourism and marine science and infrastructure (Pauli, 2012).

Gunter Pauli (2012), in his book The Blue Economy, explains how this concept is the key from scarcity to abundance, not just in resources but also in job creation.

By increasing the utility of the oceans, seas and coasts, Pauli argues that these sectors would become indispensable and therefore, provide a large number of jobs, and also provide alternatives to sustainable models of industrial growth and development. Blue economy combines conventional maritime-based industries such as fishing, marine transport and tourism and newer activities such as aquaculture, marine biotechnology, offshore renewable energy and seabed

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mineral extraction. Pauli also calls for a solution-oriented approach to deal with challenges of sustainability, employment and development. The focus must shift from identifying problems to finding and creating solutions (Voyer et al., 2017).

The Economist Intelligence Unit attempted to delimit the concept and claimed that the blue economy was synonymous to the “greening of the ocean economy” and has futuristic implications towards development. It has the ability to visualise patterns of production and the consumption of ocean resources. From this perspective, the blue economy is a fresh paradigm shift from the older view of ocean resources as a means for free extraction of resources and waste dumping (Upadhyay and Mishra, 2020).

While most scholars agree on the general definition of the blue economy, SmithGodfrey recognises that this is a purely qualitative definition and thus defined this concept in quantitative terms. The blue resources used are standardised and per societal developments and without harming the health of the ocean systems. In order to adopt a blue economy system, there needs to be a balance between maritime activities and the values attached to them. In this paper, Smith-Godfrey identifies five activities relating to the oceans including harvesting of living resources, extraction of non-living resources, generation of new resources, and trade of resources and resource health. Keeping the value chain of oceans in mind, applying the definition of blue economy, the results of each level of activity can be calculated and measured in a structured framework (Smith-Godfrey, 2016).

Smith-Godfrey (2016) applies the qualitative comparative analysis (QCA), to the various definitions of blue economy to count the combinations of the variables observed. He came to the conclusion that the definition of Blue Economy could be “Blue Economy is the sustainable industrialisation of the oceans to the benefit of all”. SmithGodfrey explains that the term, “sustainable” in the inclusion of the concept of blue economy emerges from the concept of green economy, which is the balance of human activities such as economic, trade and legislative activities and the ecological system, and the communities and livelihoods that depend on this. The motivation of “industrialisation” in the definition comes from the importance of large-scale manufacturing, and other economic activity, and economic development in the region. It is a calculable variable, unlike “sustainable” which may or may not be calculable to measure effectiveness. “Oceans” are defined as the defined environment which is different from the land activities, which are considered more traditional. The motivation for including “benefit” in this definition is to be able to ensure the wellbeing of both humankind and the environment with a reduction in resource scarcity, an increase in efficiency and a

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much lower carbon footprint. Finally, the inclusion of “all” in the definition is to emphasise the holistic and inclusive approach of the concept of blue economy.

As a whole, this definition provides for all the critical elements of the several definitions of the blue economy. Smith-Godfrey also emphasised on how this definition allows for the effectiveness of its application to be measured in calculable terms (Gamage, 2016).

The blue economy primarily recognises that oceans are the latest frontier for economic development as it is an invaluable source to support livelihoods and for resources. It considers the sustainable usage of oceanic resources to be extremely important. The intent might not necessarily be completely altruistic as healthy oceans ensure the long-term benefits for all parties involved. The blue economy also puts an emphasis on the vital role of technological development in improving economic conditions of a nation-state, and in ensuring continued enforcement of the sustainability component of the blue economy. Marine technology can help address several issues like oil spills and deoxygenation of waters, waste water treatment and disposal and mitigation of other environmental disasters.

Advancements in such technology also facilitates better collection and study of data by the usage of remote satellites and high frequency surface wave radar (HFSWR). The HFSWR technology, for example, provides real-time coastal ocean current observations and tidal current predictions. This helps in economic activities such as fisheries management and with securing the oceans for safe passage as it enables surveillance which helps tackle maritime piracy and terrorism (Upadhyay and Mishra, 2020). With the several benefits of the development of ocean resources, multinational corporations, investors and even nongovernmental organisations are vying to grab marine and blue resources. This can be detrimental to small scale businesses as these big economic actors’ control and decide the extent to which marine resources are used. This is precisely why a strong blue economy policy must be implemented as it emphasises on an inclusive and sustainable economic environment. It has the potential to generate new employment opportunities and boost trade. According to a UNSCD report, ocean resources would solve the global crisis of climate change, food security, energy, natural resources and also medicines. The report also highlights that the contribution of the global ocean economy, in 2010, was about USD 1.5 trillion which provides for 31 million jobs. Blue resources have the potential to contribute to meeting sustainable development goals, which is why it is SDG 14, which is interlinked to other SDG goals. This is evident from SDG 14’s connection with SDG 1 (poverty), SDG 2 (food security), SDG 3 (health), SDG 8 (economic growth and employment), SDG 9 (infrastructure, innovation, and

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industrialisation), SDG 12 (sustainable consumption and production), SDG 13 (climate change), SDG 15 (terrestrial ecosystems) and SDG 16 (peaceful and inclusive societies). Hence, the development of a healthy blue ecosystem will contribute to an overall development of the region, for a more inclusive socioeconomic future (Roy, 2019).

Blue Economy in the Indian Ocean: Current Trends and a tool for Multilateralism The Indian Ocean Region (IOR) has been defined by regionalism and the blue economy idea suits the maritime dimension of this region, and the geo-economic and security goals. This focus on the importance of the blue economy comes from the increasing awareness amongst Indian Ocean littoral states and islands. This phenomenon partly became more important in the wake of the United Nations Convention of the Law of Seas (UNCLOS), when the sea was no longer a separate entity from the land and was not only seen in terms of shipping and trade. Since then, it has come to be understood as a resource rich space that requires immense rational management and a sustainable approach. This move requires research to improve our technical knowledge of the seabed and the health of the oceans.

Important policy-oriented research is also required which will require a strong focus on the complex governance structures that will be required to govern a regional blue economy. It needs to involve multiple strata of the governing actors, both state and non-state, to understand how to build and utilise networks for a sustainable and ethical regional blue economy (Upadhyay and Mishra, 2020). A comprehensive definition of the blue economy in the region, might be the first step toward strengthening the blue economy in the IOR. Since Gunter Pauli’s ideation of the concept in 2010 and later in the Rio +20 Conference in 2012, the blue economy concept has emerged as an influential concept in the IOR and is still contested amongst the member states of the Indian Ocean Rim Association (IORA). Despite the lack of a concrete definition, several IORA states have been advocating for the development of the blue economy in the Indian Ocean.

Bangladesh, for example, has been at the forefront in the attempt to promote the blue economy concept. In 2014, Bangladesh became the first country to propose a Bay of Bengal partnership for the Blue Economy. IORA also organised a conference titled, “Enhancing Blue Economy for Sustainable Development” in 2015. Prime Minister Narendra Modi has also emphasised the importance of a blue economy in India’s development in the initiative called Security and Growth for All in the Region (SAGAR), while the former president of Seychelles, James Alix Michel, spoke highly of the concept in his book, “Rethinking the Oceans:

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Towards the Blue Economy” (Doyle, 2018). This is vital as the population of the Indian Ocean Rim Countries (IORCs) are going through a dramatic growth change and will grow to include almost half of the planet’s population. The IOR, undoubtedly, has a high economic significance as nearly half the world’s trade passes through the region. It has an environmental and strategic significance as the IORC is home to a variety of marine and terrestrial natural resources on which its inhabitants have come to depend on for food, livelihood, essential minerals and tourism. The scope for development of ocean resources, apart from the traditional food and minerals, such as bio-prospecting, blue energy and mining of the seabed resources is being realised by coastal and island states. Hence, they are the strongest advocates of the blue economy (Doyle, 2018).

Regionally, the Indian Ocean Rim Association (IORA) countries have individually or multilaterally begun to work toward growing the blue economy. Some issues that can be identified by the IORA Council of Ministers include maritime and security challenges sustainable development of fisheries, judicious exploitation of minerals, harnessing renewable energy and encouraging coastal tourism, to help in the growth and of food and energy security, which can serve as a common source of innovation and job creation. The various definitions play their part in preventing nation states from fully cooperating on this front as each state tries to shape the narrative to suit their own national interests. For the Small Island Developing States (SIDS), the potential of the blue economy was described in 2014, at the Samoa Conference, where they aimed to go “beyond sustainability”.

For India, its Ocean Policy includes social, environmental and security matters and proposes the use of the ocean resources to benefit society. This has been reaffirmed on several occasions by Prime Minister Narendra Modi, and the Governments of Sri Lanka and the United Arab Emirates have also voiced the same (Doyle, 2018).

Seychelles has emphasised the importance of defence and security integration in securing some of the important maritime “chokepoints” such as the Malacca and Lombok straits. This is also a priority in Australia’s security cooperation with Indonesia, which focuses on creating regional networks that link maritime operations and facilitate coordination among regional actors such as the coastguards, police and other officials. Malaysia has also been working toward developing a blue economy since the mid-1980s. Several organisations such as the South African Development Community, the South West Indian Ocean Fisheries Commission and the Maritime Organization of West and Central Africa have also been focused on governance of the oceans. The African Union published its 2050

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Africa’s Integrated Maritime Strategy which elucidates upon the AU’s goal to establish a blue economy by prioritising the establishment of a “Combined Exclusive Maritime Zone of Africa”. Australia had developed its ocean policy in 1998 to develop rights for the exclusive economic zone and to ensure an ecologically sustainable way to create wealth and boost trade. Australia has developed its policy further over the years, and its foreign, trade and foreign aid policies are all encapsulated under its economic diplomacy. It has also built links between environmental diplomacy, security, prosperity and peace, which also emphasises on women upliftment and marine science. It opens up an inclusive space for the contribution of humanities and social sciences in the development of the blue economy. The IORCs have come to understand that such diverse and profound issues should not be solved individually, but multilaterally through a powerful commitment to regional governance structures. Littoral states had introduced the concept of maritime spatial planning (MSP), which involves the construction of zoning techniques that have been defined through technical innovations that are dependent on the use of the sea. The concept of the MSP is defined by securing the usage of the ocean resources on the three-dimensional level; firstly, the seabed; secondly, the sea column; and thirdly, the surface of the sea. The sectors that function on these three levels are all interdependent on each other. Hence, there is a need to regulate competition in this maritime space. The difference sectors include coastal tourism, offshore oil and gas, deep sea shipping, short sea shipping, yachting and marinas, passenger ferry services, cruise tourism, fisheries, inland waterway transport, coastal protection, offshore wind farms, monitoring and surveillance activities, blue biotechnology, desalination, aggregates mining, marine aquatic products, marine mineral mining and ocean renewable energies. This requires several infrastructures such as ports and electricity networks. In 1996, when the UNCLOS framework came into force, it offered 36 States of the Indian Ocean, (of which 20 were IORA member states), over 7,000,000 square kilometres of sea space for the exploration of ocean spaces.

Article 123 of UNCLOS has been used as a legal basis for regional-based MSP by States bordering enclosed or semi-enclosed seas, which provides for the cooperation and coordination for the management, conservation and exploration of the sea. Such cooperation must occur through a regional organisation (Doyle, 2018). The complexity of regulatory frameworks involves several levels of governance such as national, regional, and international level. Regional organisations in the Indian Ocean region need to have an adaptive, flexible, integrated, and collaborative approach to law and policy.

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Conclusion and the Way Forward The Indian Ocean Economies need to secure a sustainable economic growth, and also have an increased certainty in decision making for industry and government.

They also need to have a greater social license to operate for developments of affected communities and other important stakeholders. The Indian Ocean Rim Countries should delve into extensive collaboration, such as industry relations in the Indian Ocean Rim, which will pave the way for international partnerships between several interest groups such as government, academia, environmental groups and businesses. Although collaboration involves risks, it can also improve the cooperation between nation states by sharing information, financial capital and technology. In addition to collaboration, countries need to have a robust governance structure, with a strong legal regime, that will enhance economic development which should be stable, and transparent. The governance structures need to be cognizant of the difference in needs from its terrestrial counterparts.

These governance structures need to adopt marine-specific policies and regulatory frameworks. A separation of marine and terrestrial policies is more beneficial in the long term, as it provides more certainty to the industries involved, as they will have a clearer framework to operate within.

Governance structures need to work in combination with integrated regional scale planning, as oceans are connected by currents, which change with seasons and due to climate change. These changes can affect the countries’ exclusive economic zones (EEZ), as these currents run deep and transport biodiversity and chemicals over thousands of kilometres. Countries need to have a deep understanding of oceanography to avoid uninformed policy decisions which can negatively affect nations. Nations need to share their skills, data and knowledge in order to effectively collaborate, as every nation state in the Indian Ocean does not have the sufficient skills required to bring about the desired growth in their national blue economies. Skills need to be imported and then transferred to local professionals to reduce dependency. Governments are usually cautious about sharing data. However, metadata can be shared so as to know more about the kind and type of the data that exists and its quality. This will allow for the other nations to judge its potential and help initiate discussions with the data owning country. This can go a long way in cementing trust between the participants of the blue economy.

Some bilateral and multilateral agreements exist amongst the nation states of the Indian Ocean. The Indian Ocean Rim Association (IORA) is by far the most

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comprehensive arrangement in the region. The IORA unanimously decided to further focus on the ‘regional cooperation for the sustainable development of the Blue Economy’ for the ‘generation of employment and ensuring sustainability in business and economic models’ in 2014. Since 1997, the IORA has been bringing together its business, academic and policy networks and this focus on the blue economy builds on this cooperation of nearly three decades (Llewellyn et al., 2016). The Indian Ocean is a region where several common and varied responsibilities transcend national interests, which implies that structured international cooperation reinforces all the aspects of a blue economy. The IORA is ideal as it provides a platform for regional leadership and coordination, and therefore has the potential to transform the blue economy from being a tool for national economic development to a tool for multilateral regional cooperation and development.

References Doyle, Timothy. Blue Economy and the Indian Ocean Rim. Journal of the Indian Ocean Region. [online]. Routledge, February 22, 2018. 14 (1), 1-6. ISSN1948-108X. Available from: <http://www.tandfonline.com/loi/rior20>.

Gamage, Rajni Nayanthara. Blue Economy in Southeast Asia: Oceans as the New Frontier of Economic Development. Maritime Affairs: Journal of the National Maritime Foundation of India. [online]. Routledge, November 8, 2016. 12 (2), 1–15.

ISSN 1946-6609. Available from: <http://www.tandfonline.com/loi/rnmf20>.

Llewellyn, Lyndon E., Susan English, and Sharon Barnwell. A Roadmap to a Sustainable Indian Ocean Blue Economy. Journal of the Indian Ocean Region. [online]. Routledge, February 22, 2016. 12 (1), 52–66. ISSN: 1948-108X. Available from: <http://www.tandfonline.com/loi/rior20>.

Mittra, Sonali. Blue Economy: Beyond an Economic Proposition. ORF Issue Brief. [online]. ORF, March 03, 2017. 173. Available from: <https://www.orfonline.org/research/blue-economy-beyond-an-economicproposition/>.

Pauli, Gunter. The Blue Economy: 10 Years - 100 Innovation - 100 Million Jobs. United States: Paradigm Publications. 2010. ISBN: 9780912111902, 0912111909.

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Roy, Aparna. Blue Economy in the Indian Ocean: Governance Perspectives for Sustainable Development in the Region. Observer Research Foundation, January 18, 2019.

Available from: <https://www.orfonline.org/wpcontent/uploads/2019/01/ORF_Occasional_ Paper_181_Blue_Economy.pdf>.

Smith-Godfrey, S. Defining the Blue Economy. Maritime Affairs: Journal of the National Maritime Foundation of India. [online]. Routledge, April 26, 2016 12 (1), 58– 64.

ISSN: 1946-6609.

Available from: <https://www.tandfonline.com/doi/abs/10.1080/09733159.2016.1175131>.

Upadhyay, Dinoj K and Manoranjan Mishra. Blue Economy: Emerging Global Trends and India’s Multilateral Cooperation. Maritime Affairs: Journal of the National Maritime Foundation of India. [online]. Routledge, July 21, 2020 16 (1), 30– 45. ISSN: <https://www.tandfonline.com/loi/rnmf20>.

Voyer, Michelle et al. Maritime security and the Blue Economy: Intersections and Interdependencies in the Indian Ocean. Journal of the Indian Ocean Region. [online]. Routledge, January 08, 2018 14 (1), 28–48. ISSN: 1948-108X Available from: <https://www.tandfonline.com/doi/abs/10.1080/19480881.2018.1418155>.

World Bank and United Nations Department of Economic and Social Affairs. The Potential of the Blue Economy: Increasing Long-term Benefits of the Sustainable Use of Marine Resources for Small Island Developing States and Coastal Least Developed Countries. Open Knowledge Repository. [online]. World Bank, Washington, DC. License: CC BY 3.0 IGO Available from: <https://openknowledge.worldbank.org/handle/10986/26843>.

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Reoriented ‘BIMSTEC’ at the Heart of Reconceptualized Regionalism in the Indo- Pacific Anisree Suresh.

ORCID https://orcid.org/0000-0002-1352-4677 School of International and Area Studies, Goa University, India anisreesuresh@gmail.com

Abstract. The cold war and immediate post-cold war had witnessed marginalization of the Bay of Bengal from the mainstream geopolitics due to bloc rivalry and major contestation outside the region and also due to the isolationist policies followed by the littoral states in the region. With Indo-Pacific started getting momentum, Bay of Bengal and the regional body ‘BIMSTEC’ was behind the pace. China’s nationalistic leadership and aggressive pursuit of national interests also with its BCIM initiative trying to connect to the Bay of Bengal as a direct entry into Indian ocean and also as part of PRC’s west region development strategy, became an imperative for re-emerging geographic centrality of the Bay of Bengal. Last few years as the strategic and economic interests in the Bay of Bengal are gaining fame as part of the larger maritime strategic space of Indo-pacific, BIMSTEC is emerging as a promise in the region, as institutionalization of IndoPacific could promote overall peace, security and prosperity in the region. Bay of Bengal could rightly claim the centrality of Indo-pacific regionalism through a renewed BIMSTEC as it provides an alternate economic choice over BRI of PRC and allows South Asian countries connect with the ASEAN and connects two regions of geo-economic importance while diversifying the dependency of littoral states beyond China. BIMSTEC, along with connecting Asia's economic capital to the subcontinent, also establishes itself at the heart of Indo-pacific with a promise of geo-economic importance. Littoral states of Bay of Bengal are reclaiming the geo-economic space in Indo-pacific through a reimagined BIMSTEC and the prospects of reorganized value chains of post-COVID-19 global economic scenario. This paper intends to study the emerging importance of a reoriented BIMSTEC central to the dynamics of Indo-Pacific regionalism.

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Keywords: BIMSTEC, Geo-Economics, Regionalism.

Introduction Bay of Bengal region, as per the intellect of the west mostly exists only to distinguish South Asia from South east Asia. As the scholar V. Suryanarayanan rightly points out that until the late 20 century there were minimal efforts given to understand Bay of Bengal as a region, as a community, from a localized nonwestern perspective [Suryanarayan,2000]. Bay of Bengal (BOB) is one of the largest bays with 839000 sq. miles area, i.e., 2173000 sq. km, bordered by Sri Lanka and India on its west, Bangladesh on its North and East is secured by Myanmar and Malay Peninsula. BOB has a rich heritage of cultural and ancient connectivity to Southeast Asia and the rest of the world. The history of the bay could be traced back to the trade facilitated by the monsoon winds of the bay. Sooner, along with the trade, the culture and the religious notions were sent from Indian subcontinent to Southeast Asia. th

During the epoch of Chola dynasty, Bay of Bengal had given utmost importance as it had connected the Indian subcontinent to the crucial maritime silk route for sea trade and commerce. BOB came to be known as ‘Chola lake’ due to its strategic importance as a major trading route [Srivastava, 2021]. Later, under the British regime BOB received its rightful claim of centrality in the strategic geography Britain had drawn as it controlled the major countries surrounding the bay. At the time Britain exited from the subcontinent, BOB started taking a backseat in contemporary geopolitics. The countries in the region were preoccupied with nation building processes and the major theatres of world politics were shifted far away from the bay. Britain, under the umbrella of colonialism, was able to integrate the region to an extent. After the partition of the subcontinent led to disintegration of the BOB region, as each country prioritized building robust national economies over building a community around the region. As the cold war politics was staged away from the bay, the limelight was further taken away from the bay. Except, for once in 1971 India- Pakistan war on the liberation of Bangladesh in the context of proxy war politics of cold war, Soviet Union and US had made their naval presence in the BOB. The region of Bay of Bengal was no longer recognized globally as a strategic water, but more of a dividing line of South from Southeast Asia. On its one side, the countries of Southeast Asia placed their security under the umbrella of the western bloc and economically prospered into one of the successfully economically integrated regions in the world. Other side, South Asian countries like India and its

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neighbours, were more intent on holding a neutral stance in geopolitics. The gap in terms of economic growth, security alliance and connectivity between one another grew further between these two regions, pushing the BOB into the periphery of strategic game play. Due to the lack of integration of the BOB region even though India shared land and maritime borders with Myanmar and maritime boundaries with Thailand and also with ancient historical and cultural linkages with one another, there were fewer efforts to integrate to one another. In contemporary geopolitics, as Indo-Pacific is gaining currency, the geopolitical understanding of the strategic position of Bay of Bengal is also gaining the world's attention.

Towards the end of the 20th century, there were more intensified efforts to integrate the region as the geopolitics of cold war faded off. The Bay of Bengal Initiative for Multi-Sectoral Technical and Economic Cooperation (BIMSTEC) came into existence with a view to regenerate the historical connectivity of the ancient times in the BOB to mutually benefit from the economic integration. The Bangkok declaration of 1997 gave birth to BIMSTEC which assured to overpass the economic and connectivity divide of the region and to deeply integrate with Association of SouthEast Asian Nations (ASEAN). The BIMSTEC regional association comprises seven member countries, India, Sri Lanka, Bhutan, Nepal and Bangladesh from South Asia and Thailand and Myanmar from southeast Asia who had come together to rejuvenate the regional community sense and to fasten the integration of the region in an intertwined economic web. The states around the bay started to recognise the importance of multilateral association and benefits of an institutionalized region as it could collectively bargain for national and economic interests. BIMSTEC as a sub-regional integration mechanism was formed mainly to accelerate the growth through mutual cooperation in various sectors by utilizing regional resources available to bridge two regions of geoeconomic importance, South and Southeast Asia, while taking advantage of the geo-strategical and geopolitical factors.

The region accommodates roughly a quarter of the world’s population with 1.68 billion people with a combined GDP of over 3.6 trillion dollars economy deserves the global attention towards the association [World Bank, 2019]. The highly populated Bay of Bengal carries a lot of economic promise due to its population count. The size of the grouping is mostly because of India’s 1.3 billion people but the presence of big economies like Thailand and Myanmar along with India balances one another and showcase huge potentials of partnership. The high GDP growth rates of most of the South Asian economies is a sign that the future

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of geoeconomics centrality belongs to South Asian economies, especially to the countries surrounding the Bay of Bengal region. BIMSTEC was founded on the principles that the cooperation within the member countries would be based on mutual respect for sovereignty of nations, member countries are equal to one another, regard for territorial integrity, retaining of one’s own independence politically, no interference in domestic affairs, peaceful coexistence in a mutually beneficial way [BIMSTEC, 2008]. This paper intends to study the role of a reoriented BIMSTEC in claiming the centrality of Bay of Bengal in Indo-Pacific and also understanding the regionalism in the bay and how BIMSTEC plays a role in integrating the region of South Asia to the Southeast Asia.

BOB Central to Indo-Pacific As the global economic power centre shifts from the West to the East, particularly to the East of Asia, the geopolitical construct, Indo-Pacific, becomes the hotspot of geopolitical cooperation and competition. Indo-Pacific generally implies a region comprising Eastern coasts of Africa to the Western Pacific Ocean through the Indian ocean region. The major global trading routes pass through the Indian and Pacific Ocean, the centre of global trade passage also more focused in this interjunction of Indian and Pacific oceans. The change in the nomenclature from ‘Asia-Pacific’ to ‘Indo-Pacific’ shows the need to specify the significance of Indian Ocean region and the significance of emerging power centres such as India [Ali, 2019]. As the post-cold war chaos of politics shifted to the theatre of Indo-Pacific, owing to the major checkpoints Indian ocean region has such as Horn of Africa, Bab Al-Mandeb, Strait of Malacca, Sunda and Lombok Straits and their security concerns.

For the United States, Indo-Pacific is a rebalancing strategy towards Asia to counter China as its rise is disrupting the status quo, to create a rule based ‘free and open Indo-Pacific’ as a consequential region for America’s future [Haruko, 2020]. America’s Indo-Pacific strategy approaches the region to deal with economics, governance and security of the region. Its economic engagement with the region is mainly focused on energy, infrastructure building and the security cooperation is in strengthening maritime security, disaster management in collaboration with regional players and building peacetime capabilities and enhancing programmes against transnational threats, non-inadvertently protect the American interests [Haruko, 2020]. The National Security Strategy of 2017 geographically draws Indo-Pacific as a region extended from west coasts of India to the western coasts of America [White House, 2017]. Australia as well has a

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similar understanding of the region also acknowledging North Asia, South China sea and the extensive sea lanes of communications as part of Indo-Pacific which is vital for the economic development of Australia [Haruko, 2020]. As far as India is concerned it is extended from the eastern shores of Africa to the Americas and Bay of Bengal positioned to its centre.

The countries like US, Japan and Australia who have strategic stakes in IndoPacific have placed crucial importance to India’s role in Indo-Pacific and for India, it tries to establish itself in Indo-Pacific to accomplish its maritime aspirations. India tries to project its power capabilities in the maritime domain as Indo-Pacific is an opportunity for its global power aspirations. Indo-Pacific also beholds challenges for India to enhance its diplomatic footprint and security environment against China as it aggressively triumphs over the countries in the region through its economic capabilities [Baruah, 2020]. Beijing’s increased strategic presence is seen as a common challenge for the countries in the region and India’s strategy towards the region is to manage China's economic influence over the countries and to build stronger partnership across the Indo-Pacific ss Beijing is able to offer a set of substantial economic projects and military assistance to the countries in South Asia and Bay of Bengal region. Global powers like the US believe that India can play a strategic role in containing China's economic influence making inroads to Indian ocean region. This ultimately brings the attention back to India and Bay of Bengal countries to claim their own strategic role in the global stage. India through its Look East policy to connect with ASEAN is a way to look towards the east to expand its influence, on economic and security terms. BIMSTEC as an institutional framework was one of the strategic instruments to connect to the eastern part of India’s neighbourhood.

Bay of Bengal, the natural bridge between the Indian subcontinent and its eastern prosperous Asia lies strategically central to the concept of Indo-Pacific. The factors such as China’s dramatic economic transformation towards the 21 century and the emergence of Asian economic giants on the East side of the Bay and its undisputed strategic location raised the stakes of BOB as a region. India’s economic reforms since the 1990s produced a substantive growth rate along with rest of the South Asian economies and their economic priorities to integrate with the East had become essential in a globalized world. These rising economies with increasing middle class population are great market choices for the Pacific economies as well. Especially, the countries of Bay of Bengal rim region like Bangladesh, Sri Lanka and Nepal with their high growth trajectories, makes the

st

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region one of the fastest growing regions in the world. Myanmar's integration into Southeast Asia as well as its opening up made the Bay of Bengal region the connector of eastern Indian ocean and the western Pacific Ocean.

The inevitable factor of the scaling up of the value of BOB is the China factor.

Under the ‘West Region Development Strategy’ China seeks nearest ocean access to landlocked western provinces of China, Tibet and Yunnan, to accelerate this region's sluggish economic development [Mohan, 2020]. Along with China’s efforts to connect with the bay economies, Bangladesh, Myanmar and India through its BCMI initiative, China is promoting infrastructure projects in the region, road and rail extension projects and energy pipelines connecting western provinces to Indian Ocean region. Also, China uses its economic diplomacy to buy the countries in the littoral through sponsoring infrastructural projects like BRI and associated economic corridors to the countries of the region. China’s maritime traffic passes through the Malacca straits to the Indian Ocean region and this makes Beijing intent on keeping its naval presence in the Indo-Pacific.

Beijing fears that its national interests would be compromised if anti-China forces control the Sea Lanes of Communications (SLOCs). Along with China, the US, South Korea, Japan and India are bent on protecting SLOCs and chokepoints in the region to protect their own national interests.

Andaman sea as part of the North Eastern Indian Ocean connects the Bay to strait of Malacca and then it to South China sea, the sea of contestation. The Bay and the Andaman Sea connects the prospering South Asia to the prosperous Southeast Asia acting as a ‘strategic gateway’ [Bose, 2020], increasing the strategic importance of the region and connecting the bay to major shipping lanes in the world. The North-eastern Indian Ocean, the BOB hosts major SLOCs, crucial for the energy trade between the Western Pacific economies and Middle East, and is a critical transit route of Indo-Pacific. India feels bothered by the Chinese intention to build a China controlled Sea lanes of communication and with the increasingly present Chinese submarines and Chinese controlled ports in the region.

BIMSTEC was formed to institutionally deepen the integration of the Bay of Bengal region to the Southeast Asian economies. BIMSEC was just more than a ‘SAARC minus Pakistan’, as it represents the geopolitical and economic priorities of India and its eastern neighbours to connect Eastward as the World economic centre is gravitated towards East. BIMSTEC countries, as they are connected to one another by their shared culture, history and similar political system, they also

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share a sense of common threat in the region, China. The tensions between India and China are real and India shares this feeling of threat with the US and several other countries in the South China Sea. Although, except Bhutan and India, most of the countries are part of China’s BRI projects and mostly the smaller countries in the region do not necessarily see China as a threat but more like a challenge or sometimes even an opportunity [Price, 2021]. BIMSTEC being an organization exclusive for the bay, it is considered as a ‘subsection’ of Indo-Pacific, thus it reflects the security concerns of the Indo-Pacific region, as it is in vicinity to the South China Sea. As China exerts itself as an aggressive dominant player in its neighbourhood, as the common enemy would bring South and Southeast Asia together.

In 2018, the first ever BIMSTEC military exercise, BIMSTEC Nations Military Field Training Exercise, was held as a drill for counter terrorism, which was an attempt to strengthen the security aspect of BIMSTEC. Although, many member countries were apprehensive of the military exercise, as they did not like to be projected as in a security arrangement ostensibly against China [Lintner, 2021].

This exercise to build interoperability and consensus generation around the member countries on counter terrorism, was to make its presence felt in the IndoPacific. In 2017, at the first meeting of the National Security Chiefs of BIMSTEC member countries held in India, acknowledged the common security threats of the region as addressing the security threats is necessary for economic development. This meeting declared BOB as a ‘common security space’ which needs common strategic response to the challenges [Ministry of External Affairs, 2017]. BIMSTEC also tries to create a common response to the overfishing in the region and to protect the ocean ecosystem by establishing a standard operating procedure to fishing in the Indian Ocean and to have a negotiating position in defying China in its overfishing in this area.

BIMSTEC as an organization formed on the basis to govern the ocean, it needs to address the challenges arising from the waters to be recognized as an important governing body of the region. The occurrence of cyclones is quite frequent in Indo-Pacific and it’s happening oft-times triggered by the climate change and due to the geographical nature of the region placed near Andaman Sumatra Subduction Zone. As India, acknowledged worldly as a net provider of disaster management and mitigation, does play a leading role along with BIMSTEC member countries under its ‘Environment and Disaster Management’ in the region. Providing a well preparedness in mitigating disasters and providing resilience to pandemic by creating a global response to it could be the strong

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foundational area of cooperation for BIMSTEC like the coal and steel community for the EU in its early years of inception [Price, 2021].

As Indo-Pacific where the interests of BIMSTEC countries as well as Southeast Asian countries converge, these interconnected oceans and their geopolitical value act as a unifying factor of these regions bringing out the regional cooperation to one another. The utter need to keep the SLOCs free and open to protect the important chokepoints of global commercial flows like the Strait of Malacca. The ASEAN charter clearly allows it to engage with other regional organisations in Asia to keep the SLOCs protected. A quarter of all the goods traded in the world pass through the BOB so it’s quite important for BIMSTEC and ASEAN to collaborate to protect their economic interests in the region.

These regional collaborations between ASEAN and BIMSTEC are seen as part of their strategic interests in the Indo-Pacific to counterbalance the BRI aspirations of China and expand access to western Pacific. India, who sees abundant power projection opportunities in the Indo-Pacific, put forth BIMSTEC as a cornerstone for extending its economic and diplomatic outreach to Southeast Asian countries. As part of India’s Sagarmala project India extended its reach to Indonesia’s Sabang port through BOB to enhance its outreach program to coordinate with ASEAN in port development in the region [Bose et al, 2021]. In this context, one could rightly assume BIMSTEC is a successor in following the ASEAN model of open regionalism in the BOB region.

BIMSTEC Regionalism Economic regionalism as defined by Britanica as an institutional mechanism set up to provide a liberalized passage of goods and services across the borders and also to have a unified economic national policy for the countries from the same geographical region [Moon, 2016]. The process of regionalism is availing an environment which nurtures intraregional trade and investment. In the later part of the cold war era, the economic globalization and the transnationalism of the capital made the environment for global trading a volatile one. Contemporary regionalism is taking place in a renewed abstract concept called space which had changed from a point of view as something that was bounded, closed and within a proximity to one another to a space which is loosely bounded by distantly connected organizations and networks with no regard for proximity. It’s no longer a geographical territorial entity distinct from global space. In the emerging world order of globalization, where the territorial spatial arrangements are constantly altered and territorial boundaries are no longer necessary or no longer

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territorial in nature due to the socio political and economic elements of the region is wired by the network of interconnected actors in the region which are becoming dynamic in nature [Amin, 2004]. With telecommunication and transport networks that wired the word intrinsically together connecting the furthest dots to some common close patterns of mutuality and dependence, perhaps in terms of supply chains and corporate networks in a structural connected configuration. The idea of regionalism is rooted to restore local control and democracy through territorial autonomy, increase economic returns and strengthen a sense of attachment [Amin, 2004]. The major central aspect of the unbound regionalism is a politics for territorial management for local returns with localized decision-making bodies. As in the institutional framework is to help a locally build economic system focusing on the local supply chains and local transfer of knowledge. It establishes a different order of organization and power to that of a central global power and transnational corporations to reduce the regional inequality and a way to build local capacity to reduce the dependency of certain less fortunate regions on the global centres of power. The majority of contemporary corporate networks are spatially dispersed and not locationally restricted as the international firms draw from highly spatially distributed supply chains with transregional infrastructure and logistics links. This set of regionalisms, not as an opponent of globalization, is called open regionalism.

The Indian Ocean region has always had the natural environment for regionalism, as the countries in the Indian Ocean are connected to one another by the climate, geography and history they share. The South Asian Association for Regional Cooperation (SARRC) has proved over the years has not been effective in promoting intraregional trade and in creating a sense of community in South Asia.

Although SAARC could have benefitted comprehensively by a larger market economy combined of the existing national economies of the region, if impediments such as comparative advantage of alike goods produced in the region, shortage of surplus produced for export, deficiency in communication infrastructure weren’t there [Yahya, 2006]. There are structural impediments as well to the SAARC region like underdeveloped manufacturing sector, terrorist activities and political rivalry between countries, smuggling, corruption and transportation costs affecting the regionalism of South Asia. The Indo-Pak rivalry which was intrinsically linked to the terrorist activities in the borders and economic asymmetry between the countries in the region put SAARC Regionalism into complete stagnation.

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On the other side, during the cold war a new geographical construct was formed -Asia Pacific- comprising Southeast Asia, Northeast Asia with the major powers of the Pacific rim. In recent years a new regional construct, the Indo-Pacific is evolving, extending the Asia pacific westwards. Association of Southeast Asian Nations (ASEAN) thrived as the crown of Asia-Pacific regionalism, complimenting the globalism tendencies of the region. Although the founding objectives of ASEAN were; to reduce the tensions between non-communist states and to contain the spread of communism into their domestic affairs, to promote socioeconomic development and to reduce the external military influence in the region. ASEAN as a collaborative enterprise which created a space for regional integration of the region which led to the growth of the domestic economies at the same time supporting the global economic structures [Drysdale, 2017]. The path ASEAN followed, Open Regionalism, acted rather as a stepping stone to global liberalization, than a stumbling block against globalization.

BOB is one of the least integrated regions with the minimal trade with one another and lacks physical connectivity within. For decades the divide in terms of economic growth and socio-political development within the bay acted as barriers for regional integration and in developing strategic and economic interdependence to one another. As the geopolitics around the bay started shifting with the wider Indo-Pacific context, the BOB countries started recognizing the potential of an interdependent bay to achieve their own national, security and economic interests. Although BIMSTEC was in existence for more than two decades, only in the post half of the second decade of 21 century, in the context of stagnation of SAARC indefinitely, brought the limelight to the BIMSTEC for regional cooperation. A regional institution basically formed to tap unexplored opportunities to the member countries and/or to combat potential common threats to the region [Ghosh et al, 2019]. BIMSTEC happened to complement India’s interests in regional connectivity to Southeast Asia as part of its ‘neighbourhood first’ and ‘Act East’ policies as well as India’s North-eastern states development programme. Bangladesh’s national interests well converge at BIMSTEC as it would act as a multilateral framework for its engagement with both South Asia and Southeast Asia at an institutional level. Sri Lanka looks at BIMSTEC as a platform to enhance its maritime logistics capabilities, for Nepal and Bhutan it’s a possible means to overcome the challenges of its geography of being mountain economies by connecting to the bay, physically and politically.

Myanmar and Thailand, it's about the access to consumer markets offered by South Asia, notably India. At a time where India had exited the Regional st

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Comprehensive Economic Partnership (RCEP), BIMSTEC portrays extreme potential of regional cooperation. For smaller countries in the region, a regional institutional mechanism acts as a check on the dominance of powerful players such as China and India. The foundational functioning motive of BIMSTEC was to enhance the socio-politico-economic conditions of the member countries to create a contiguous regional unity across the bay [Ghosh et al, 2019]. China through its BRI projects and military aggression, have spread its dominance across the Indo-Pacific and as well its belligerent posture in the South China Sea created apprehension among the countries across Indo-Pacific regarding its ambition in the region. This fear of China’s economic and military might and its potential of uprooting the status quo in the region are a few pushing factors of regionalism in BOB. This state of tension which rises with the increased presence of China in the Indian ocean region made states to identify ways of coming together against this sense of threat. For countries like Sri Lanka which is debt trapped by China, BIMSTEC plays a crucial role of balancing and diversifying by reducing the dependence on Beijing.

BIMSTEC in its 23 years of existence had made quite a lot of achievements in regionalism, but the pace towards regionalism was quite slow relative to many other regions. Recently, BIMSTEC picked up its pace due to the dynamic environment of Indo-Pacific and as an alternate regionalism model to SAARC. At the 4 BIMSTEC Summit held in Kathmandu in 2018, the MOU was signed for the establishment of BIMSTEC Grid Energy connection to enhance the energy cooperation between the member countries towards an energy surplus region. Sooner, the first ever military exercise, MILEX 2018, was held in the BOB to strategize a collective response for counterterrorism [Ghosh et al, 2019]. There were also robust discussions for adoption of a Master Plan on Transport Connectivity. All these policies and programmes of BIMSTEC reflect the renewed interest by the member countries to increase trade and deepen the integration of the region. th

Although outside of BIMSTEC, the member countries have undertaken various measures and bilateral FTAs to one another, such as the FTA between Sri Lanka and India signed in 2005, finalization of FTA under BIMSTEC was an uphill task.

Since 2004, the talks were going on for implementing an FTA and have been trying to finalize the FTA by 2014 which covered certain areas such as; tariff concessions on trade in goods, customs cooperation in services, investment cooperation and also a dispute settlement mechanism. Four foundational agreements were adopted on trade in goods, rules of origin, dispute settlement

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and customs [Ghosh et al, 2019]. A successful FTA creates employment opportunities and in turn economic and social development to the region.

Although FTA would bring mixed results, initially increasing trade deficits but it would also improve the intra-regional trade of the region which is quite low in BOB and it would create efficiency due to the high competition and widened consumer choices. But, as many countries in the association have had recorded economic growth in the pre-pandemic period and would be able to be more of a success than South Asian Free Trade Agreement due to the political issues it had.

BIMSTEC-FTA also allows the member countries to take enough precautionary safeguarding measures for its domestic industries from practices such as goods dumping. The BIMSTEC-FTA would be successful if it is able to synchronise the standards and removal of para-tariffs [Sengupta, 2017].

With the finalization of the FTA, as it enables trade it also helps convalesce from the inadequacy of infrastructure and logistics. BIMSTEC finalizes its Master Plan for Connectivity in 2021 to foster multimodal transport systems and connectivity projects. The major impetus of BIMSTEC regionalism initiative was its obsession with connectivity projects. Although there are a fair number of connectivity projects across the region, most are unfinished and lagging for years. In the recent years, there was a renewed interest to improve the road and rail connectivity as it would be beneficial and a supporting factor for increased economic interaction within the region. There are certain enterprises by BIMSTEC such as its Motor Vehicle Agreement and BIMSTEC Transport Infrastructure and Logistics Study which identified and recommended a set of new approaches to improve connectivity in the region. Although BIMSTEC was in existence for about 23 years, BIMSTEC regionalism is still in its infancy, but it holds enormous potential in driving the socioeconomic development of the region. BIMSTEC cold be the regional institution in directing the countries towards mutual cooperation in trade, investment, energy, tourism, counter-terrorism and Blue-economy.

The Future of BIMSTEC BIMSTEC could be the future of world power dynamics, if the political leadership plays the card well. The future of BIMSTEC depends on how the political leadership of the member countries would engage themselves in the organization by providing adequate resource bases. BIMSTEC member countries have to take the initiatives to take up necessary internal and structural reforms in its administrative sector as well as in its financial matters to enhance its credibility and functioning. For the success of BIMSTEC as a regional apparatus for deeper

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unification of the region, it needs to fundamentally focus on the basic area of cooperation such as disaster management and mitigation of disasters as it is one of the strongest points where BIMSTEC can make itself visible. BIMSTEC can also take advantage of the current pandemic situation by being a collective global response in mitigating pandemics away from the region by pooling its resources.

As a region of political and religious chaos, BIMSTEC needs to be extremely sensitive in dealing with the regional sentiments such as the Rohingya crisis and it uses the BIMSTEC platform as a friendly forum for discussion on the issue between Myanmar and Bangladesh [Price, 2021].

BIMSTEC had over the years built a sense of community around the organization and cherished its linked past. Malaysia, Singapore and Indonesia also share maritime borders with these countries and as ASEAN members and strong Asian giant economies, it would be beneficial for BIMSTEC to open up and integrate these economies to form a potential ‘BIMSTEC Plus’. BIMSTEC should further enhance its collaboration with BIMSTEC and it’s quite possible to bring out a ‘BIMSTEC+ASEAN’ joint regionalism in Indo-Pacific to divert the geopolitics in favour of these organisations.

BIMSTEC should deliberately evolve its regionalism proactively rather than reactive regionalism due to the perceived Chinese threats, to evolve BOB into a secure, peaceful and prosperous region. The Covid 19 pandemic along with the difficulties and fatalities also brought opportunities to BIMSTEC as BOB might be identified as a preferred destination for investment capital as countries are looking for supply value chains away from China and BIMSTEC has the skilled human capital and resource capital to attract the finance capital.

There should be administrative reforms to brace the Secretariat with human and financial resources. Only an organization with strong governance would be able to facilitate easier trade and investment without the bureaucratic red taping.

BIMSTEC should continue to prioritize its connectivity projects to allow high quality infrastructure into the region and bridge the mountain economies to the blue ones. BIMSTEC shouldn’t be another SAARC with no guidance and resource base, it should find its ways to cooperate and find grievance mechanisms to address the political and security concerns.

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India- Iran Relations: Implications for Maritime Security in the Western Indian Ocean Rishi Athreya Research Associate, Asia Centre Bangalore, India rishi.athreya@googlemail.com

Abstract. Iran and Russia recently conducted a maritime drill in the Persian Gulf.

There were contradictory reports on Indian participation. While Iran was keen for India to join, India kept away from this exercise. This paper shall examine the nature of the Indian position vis-à-vis Iran. India has long term political, economic and security ties with Iran. The Chabahar port is being built by India. India has long been seen as neutral in conflicts between GCC countries and Iran. One challenge faced by India was the sanctions by the United States of America (USA) on Iran. After the waiver was not renewed in April 2019 India had to stop buying oil from Iran. Consequently, Iran has been seen as gravitating towards China. Iran and China are reported to be moving towards a strategic agreement. In another development, Iran has reportedly ousted India from a rail line linking Zahedan in Afghanistan and Chabahar. This was supposed to be a trilateral agreement of the three countries. There are specific challenges for maritime security from the IranUS tensions. The PLA-N is increasing its presence in the Persian Gulf. There is poor coordination between India and the USA in this region. The Strait of Hormuz is an important choke point for India. The recent non-participation in the naval exercise is perhaps symptomatic of deeper issues. The change of government in the USA opens new possibilities for Iran. Here too India could play a constructive role. Given the position of Strategic Autonomy it is seen as a neutral party by all concerned. This paper will address these issues and attempt to conclude on the way forward.

Keywords: Maritime, Iran, Russia, Persian Gulf, Indo-Pacific, Indian Ocean, Chabahar, China

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Introduction: India’s Maritime Domain Iran and Russia recently conducted a maritime drill named “Iran-Russia Maritime Security Belt 2021” in the Persian Gulf. There were contradictory reports on Indian participation. While Iran was keen for India to join, India kept away from this exercise (Times Now News, 2021). This decision of India to not participate once again brings to light India-Iran bilateral relations. India’s primary area of maritime interest include, India’s coastal area and maritime zone; the Arabian Sea, Bay of Bengal, Andaman Sea, and their littoral regions; the Persian Gulf and its littoral; South-West Indian Ocean, including Indian Ocean Rim (IOR) island nations therein; the Gulf of Oman, Gulf of Aden, Red Sea, and their littoral regions; and East Coast of Africa littoral regions (Indian Navy, 2016), (Parmar, 2014) (Parmar, 2014). The main chokepoints within India’s maritime domain are those leading to, from and across the Indian Ocean, including the Six-Degree Channel, the Eight/Nine-Degree Channels, the straits of Hormuz, Bab-el-Mandeb, Malacca, Singapore, Sunda, and Lombok, the Mozambique Channel and the Cape of Good Hope (Vasan, 2017). Vice Admiral Pradeep Chauhan gives a comprehensive list of India’s maritime neighbourhood. These are categorised as Immediate, Proximate, Extended and Strategic Neighbourhood.

Proximate neighbourhoods are those countries that do not share a common Territorial Sea or Exclusive Economic Zone’ but whose stability affects India (Chauhan, 2019, pp. 13-16). The Indian Ocean region can be segmented as the Western Indian Ocean, Persian Gulf, Indian Ocean Island Countries and Eastern Indian Ocean (Kumar & Ghosh, 2020, pp. 2-5).

Determinants of Maritime Security The key determinants for shaping the maritime security strategy cover broader maritime strategic imperatives and more specific maritime security drivers (Indian Navy, 2016 p. 5).

Broader Maritime Strategic Imperatives India is centrally located within the Indian Ocean with an unencumbered entree through the IOR. Maritime economic activities include energy, trade, and fisheries. Freedom of Navigation (FoN) along these International Shipping Lanes (ISL) and Sea Lanes of Communication (SLOC) in times of conflict is a vital

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national maritime interest (Indian Navy, 2016, p. 5). In fulfilment of these essentials, there are traditional and non-traditional maritime threats. These are continuously being assessed (Indian Navy, 2016, pp. 6, 33-35).

Traditional Threats and Sources These are threats from States holding an inimical posture vis-à-vis India. Sudden politico-economic and/or military events may also affect the regional security scenario. Moreover, there are multiple players in the global scenario and it is common to find that economic ties and imperatives are not perfectly aligned with a country’s traditional political agenda (Indian Navy, 2016, pp. 33-35).

Non-Traditional Threats and Sources There has been an increase in non-traditional security threats, e.g., piracy, and terrorism, in recent years. There are often State-sponsors of such activities.

Changes in the nature of non-traditional threats and challenges necessitate corresponding changes in strategies, force structures, operating methodology, training and coordination mechanisms. In the specific case of India, the events of 26/11 are a prime example of non-traditional threats.

Principal Rivals India’s foreign and defence policies aim to deter the two principal rivals of China and Pakistan. This is also reflected in the Western Indian Ocean.

1. China China is India’s main strategic rival, including at sea. According to some analysts, an important aim for India’s maritime policy is to reduce the influence of China (Baruah, 2017; Singh, 2018; Shrikhande, 2018). There is Chinese presence across the board, and has become more important due to that country’s ‘Belt and Road Initiative’ (BRI) (Singh, 2018; Singh, 2017). Thus, India is forced to factor into its own security calculus. However, the concern among Indian scholars has been about China’s rapid military modernisation, and locating PLA-N Fleets in the Indian Ocean region (Upadhyaya, 2017; Singh, 2018). There are contradictory views on the level of strategic advantage and disadvantage of both countries.

Purely geographically India had the strategic advantage (Brewster, 2015). Given

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primacy given to the USA, China is insensitive to Indian concerns. India continues to build alliances in the region (Brewster, 2018). To counter China, India has undertaken infrastructure development for smaller neighbours, humanitarian assistance, and bilateral alliances (Chaudhary & Estrada, 2018).

Consequently, India is increasing engagement with Quad countries (Athreya, 2020).

2. Pakistan Although Pakistan’s naval expansion was not as often noticed as it might have been before the military rise of China, the latter has been providing maritime assistance to the former and therefore, Pakistan too, has been able to upgrade its naval infrastructure (Parmar, 2014; Parmar, 2018, p. 6). This includes advanced submarines and nuclear weapons. Al-Qaeda’s September 2014 attempt to capture PNS Zulfikar at the Karachi naval base provides forewarning of the vulnerability of deployed nukes to terrorists. There is a view that China’s alliance with Pakistan is the biggest challenge in the Indian Ocean Region (Kumar & Ghosh, 2020, p. 4). Pakistani analysts view the naval alliance with China as a natural progression given the close economic ties, especially the China-Pakistan Economic Corridor. Another shared concern is the increasing maritime power of India, especially India-US cooperation (Saeed, 2016).

India Maritime Foreign Policy India pursues a realist approach to foreign policy (Ranganathan, 2020). Indian foreign policy has the concept of strategic autonomy (Khilnani, et al., 2012).

Experts see this position as a natural continuation of the erstwhile NonAlignment Movement (Ranganathan, 2020). However, even this position is seen as having a realist slant (Brewster, 2016, p. 5). India has embarked on maritime diplomacy in the past two decades. The Indian Navy released the first doctrine in 2009. In 2007, Freedom to Use the Seas: India’s Maritime Military Strategy was released (Indian Navy, 2007). A second version of the Indian Maritime Doctrine was released in 2016 (Indian Navy, 2015). In the same year, a Maritime Strategy Paper was also released (Indian Navy, 2016). The latest Joint Doctrine of the Armed Forces was released in 2017 (Headquarters Integrated Defence Staff, 2017). These provide the conceptual basis for India’s defence policy and strategy, including Military Diplomacy.

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The basic aim of India’s defence diplomacy is to promote goodwill towards India overseas (Headquarters Integrated Defence Staff, 2017, pp. 21-22; Jaishankar, 2016). The two main aims are increasing cooperation and signalling intent to rivals (Athreya, 2020, p. 60). The larger purpose of the navy’s diplomatic role is to favourably shape the maritime environment in the furtherance of national interests, in consonance with the foreign policy and national security objectives (Indian Navy, 2015, p. 151). As part of maritime diplomacy, India has adopted visions of security and growth for all in the region (SAGAR) and Indo-Pacific Oceans Initiative (IPOI) (Athreya, 2020a).

Challenges for India in the Persian Gulf The scenario in the Persian Gulf creates challenges for India due to various reasons.

1. Geography

An important part of India’s proximate neighbourhood is the Strait of Hormuz including countries of the Persian Gulf and North Arabian Sea (Indian Navy, 2016, pp. 17-21). A particular area of concern has been the Persian Gulf. These has been spill-over effect from land to sea, giving rise to non-traditional threats and maritime security challenges, such as piracy, terrorism, and humanitarian crises. There has been continued militarisation of the region and proliferation of weapons amongst non-state groups, including private security organisations (Indian Navy, 2016, p. 37).

2. Regional Issues There are challenges in the Middle East that India has no control over. Regional turmoil, civil wars, internal strife, geopolitical competitions are a feature of the Middle East and have muddled India’s options. Whereas India has friendly relations with all Gulf States there are challenges in the region. Animosities are worsening in the region especially between Iran and Saudi Arabia. There are tensions within the Gulf Cooperation Council states. The US and Israel are also active in the region (Kumar & Ghosh, 2020, p. 4). India has an extended harmonising role among these states (Quamar, 2018, p. 8).

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3. Extra Regional Powers

Several leading powers maintain military presence in the IOR to safeguard their interests, through military bases and forward deployed units (Indian Navy, 2016, p. 37). Extra regional powers especially the United States Navy, PLA-Navy and Russian Navy are getting active in the region. There are often skirmishes between the US and Iranian Navies. This creates much anxiety for FoN in the Strait of Hormuz, a major artery for global trade (Kumar & Ghosh, 2020, p. 4). Given the nearness of Iran to the Strait of Hormuz, its part in Constabulary operations in the western IOR is crucial (Behal, 2018).

US- Iran Relations The United States of America has long been active in the Persian Gulf region.

The U.S. National Defense Strategy (NDS) states that it will support a free and open Indo-Pacific. Further it will build partnerships for deterrence and free access to common domains (U.S. Defense Department, 2018, p. 9). The Indo-Pacific Strategy Report mentions the relevance of free and open Indo-Pacific. This includes governance, peace, diplomacy, economics, and security (Department of Defense, 2019, p. 3). The NDS aims to have a stable Middle East that enables stable global energy markets and trade routes.

Further it intends to consolidate gains in Afghanistan, Iraq, Syria, and elsewhere and “to support the lasting defeat of terrorists as we sever their sources of strength and counterbalance Iran” (U.S. Defense Department, 2018, p. 9). The US Navy maintains a presence in the Persian Gulf. US naval assets in the Gulf and the Strait are part of the Bahrain-based US Navy’s 5th Fleet, itself under the United States Military’s Central Command (CENTCOM) (Department of Defense, 2021). It identifies priorities as freedom of navigation, regional commerce, global energy supplies, and the global economy (Department of Defense, 2021).

1. JCPOA The most significant aspect of the US-Iran relationship is the Joint Comprehensive Plan of Action (JCPOA) or nuclear deal (Arms Control Association, 2021). This agreement was laden with problems from the very beginning and even during its implementation. There have been differences

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between the European Union and USA. There were misgivings among the EU States and UK on increased US sanctions on Iran. European Union (EU) States were keen that Iran comply with the JCPOA terms but were not in favour of aggressive sanctions by the USA (Einhorn, 2020). Even the EU member countries’ own economies were affected by such US sanctions (Tabrizi & Dell, 2017). Iran announced on 05th January, 2020 that it will not honour the agreement.

2. Iranian Policy At the 2018 Munich Security Conference, the Iranian Foreign Minister Mohammed Zarif mentioned that the US made wrong choices that have caused trouble in the Middle East. He suggested a strong region with no single hegemon.

There is a need to accept differences. He commended the JCPOA as an example of non-zero-sum game. Zarif suggested a regional dialogue for security as the only viable alternative to address issues. There can also be dialogue between scholars and thinkers. Zarif also mentioned the need to honour UN Principles. The Minister mentioned that there is ultimately the need for a regional non-aggression pact to address traditional and non-traditional security threats (Munich Security Conference, 2018). Speaking at IONS in 2018, the commander of the Iranian Navy stressed that regional navies should ensure security and that outsiders would impose foreign security arrangements. Thus, regional collaboration was necessary (IONS, 2018).

3. Covid-19 Pandemic The world has faced the coronavirus pandemic. Iran is one of the worst affected countries in the world. It has been badly hit partly due to lack of precautions. In the current scenario Iran is facing an extra crisis especially given the economic hardship caused by the sanctions. There has been some humanitarian aid from other Gulf countries (Singh, 2020). Many friendly countries like China, France, Turkey, Japan, Qatar and Turkmenistan have also offered assistance to Iran.

There has also been assistance from the WHO (Roy, 2020). However, there is little chance of the US removing sanctions on Iran (Singh, 2020; Fathollah-Nejad & Naeni, 2020).

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4. Targeted Assassinations Major General Qasem Soleimani, the commander of the special forces and intelligence wing of the IRGC was assassinated on 03rd January 2020 around 1:00 a.m. local time, by an alleged U.S. drone strike near Baghdad International Airport. The United States of America claimed responsibility and justified their actions based on a supposed death of US personnel and continued threat (Department of Defense, 2020; Watling, 2020). A retaliatory attack was launched

by Iran on US bases in Iraq (Singh, 2020). The USA considers these to be beyond the threshold of grey zone attacks and having lowered the bar for future attacks (Department of Defense, 2021). On 27 November 2020, Brigadier General Mohsen Fakhrizadeh of the IRGC, a key nuclear physicist was assassinated. This too is believed to be at the behest of the USA (Singh, 2020).

Maritime Security Challenges The major casualty of the tensions in the Persian Gulf and US- Iran conflicts is maritime security.

1. Freedom of Navigation Iran’s Naval deterrence is based on blocking the Strait of Hormuz by sea, air and land. Iran has a dual maritime force. The Iranian Navy is a conventional blue water force that covers the Gulf of Oman, the Indian Ocean, the Arabian Sea, the Gulf of Aden and the Red Sea. The Islamic Revolutionary Guard Corps Navy (IRGCN) conducts asymmetrical operations with the Persian Gulf and Gulf of Oman (Kumar & Ghosh, 2020, pp. 16-17). Freedom of Navigation will be the main casualty of any such tensions.

2. Incidents Given the US naval presence in the region, there are often skirmishes with Iranian naval forces (Kumar & Ghosh, 2020, pp. 16-17; Abbas, 2020). In 2019 the US has designated the IRGC as a terrorist organisation (Department of State, 2019).

Both the USA and Iran have implemented constabulary measures to deal with such attacks (Abbas, 2020). The USA CENTCOM website mentions the need to deter further attacks by Iran (Department of Defense, 2021).

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Impact on India Increased tension in India’s areas of interest can adversely impact maritime security and prosperity in those areas and adjacent waters, with consequent effect on India’s maritime interests (Indian Navy, 2016, p. 37). Iran has been important to India for the following reasons:

1. Energy Security Adhering to American sanctions, India has reduced oil imports from Iran. This has created a chasm between India and Iran. In turn, Iran notwithstanding an Indian consortium discovering gas deposits at Farzad B gas field, Iran has vacillated on giving exploitation rights to Indian companies. This prompted New Delhi to instruct its oil importers to reduce their take from Iran in 2017.

Reciprocal disenchantment is creating geopolitical questions for both nations.

Iran had indicated withdrawal of special privileges to India if other oil importers were to be patronised. A possible casualty has been the Chabahar port (Soami, 2019).

2. Connectivity An important aspect of India’s engagement with Iran was the building of the Chabahar port. This gives India access to the International North South Transit Corridor (INSTC) (Kashyap, 2018). India and Iran agreed to develop this port in January 2003. The agreement to build this port was signed between India, Iran and Afghanistan in May 2016. This gives Iran and Afghanistan a port that bypasses Pakistan. India too benefits from this arrangement. There had been a fourteen year delay in the construction of the port due to prior sanctions imposed on Iran’s nuclear programme. The JCPOA agreement reached between Iran with China, France, Russia, USA and UK, along with Germany (P5+1) facilitated removal of sanctions. Thereafter, work on the port commenced (Bahal, 2017).

Given the withdrawal of the USA from the JCPOA, Chabahar has once again run into trouble. This would also impact proposed Japanese investment in that port (Singh, 2020). Another concern with Chabahar is the possibility of China getting involved were India to dither from its commitments (Valiathan, 2020).

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3. Chabahar-Zahedan Railway Line A key facet of this project is the Chabahar-Zahedan railway line. This would connect India with Afghanistan. There have been varying reports on whether Iran had dropped India from the railway line construction (Passi & Shah, 2020).

According to the Iranian Embassy in India, the US sanctions made it difficult for India to participate in these ventures. However, they claim that Iran continues to welcome India’s involvement (The Hindu, 2020). The latest statement by the Government of India points to India’s continued involvement (Ministry of External Affairs, 2021).

4. Maritime Relations There have in the past been port calls by Indian and Iranian ships at each other’s ports (Indian Navy, 2019). However, Iran has for long not wanted a long term Indian naval presence in the region (Singh, 2017). It is not clear as to how active the Indian Navy will be in the region.

5. Foreign Minister Visit The Iranian foreign minister recently visited India for the Indian Ocean Region Defence Ministers’ Conclave on the side lines of Aero India 2021 (Press Information Bureau, 2021). Brig General Amir Hatami called the invitation for Tehran to attend the Indian Ocean Region defence ministers’ meet as a “turning point” for India and Iran, calling the bilateral standing at a “good level” (Taneja, 2021).

Other Major Powers in Iran There are other regional powers that are engaged with Iran. The main ones are China and Russia.

1. China Factor in Iran

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After the 2016, JCPOA deal China has increased involvement in Iran. There is also common interest in the BRI (Forough, 2020). China and Iran have signed a Comprehensive Joint Strategic Partnership. This includes cooperation on defence and energy. There are several commonalities that facilitate interests of both countries (Forough, 2020, p. 22). Indian scholars too see the increased sway of China as a threat to India’s interest in Iran (Singh, 2020).

2. Russia Factor in Iran The latest maritime exercise was held jointly with Russia and Iran (Ministry of Defence of Russian Federation, 2021). There is convergence between the two countries on several issues including expansion of NATO, the spread of terrorism, destabilisation of the Central Asian and South Caucasian nations and rebuilding and stabilisation of Afghanistan. Another shared interest is energy and gas exploration. Russia has provided military technology to Iran. There is a military cooperation agreement on deeper cooperation in the field of counterterrorism, exchanges of military personnel for training purposes and an increase in the number of reciprocal visits by the Iranian and Russian leaders. The Russian position vis-à-vis Iran is influenced by its relations with the west and NATO. The US withdrawal from the JCPOA nuclear deal is effectively driving Iran towards Russia (Sharma, 2018, pp. 135-136). India had a close association with the erstwhile Soviet Union in the Cold War era. There is currently a treaty between India and Russia (Ministry of External Affairs, 2004). There is continued cooperation in defence sales and research and development. This builds on the earlier defence relationship with the Soviet Union (Upadhyaya, 2018, pp. 208212). The Russian and Indian Navies hold the biennial Exercise INDRA since 2003 (Athreya, 2020, p. 54). At the larger Indo-Pacific level, Russia is not keen for any kind of alliance that will mirror Cold War alliances (Koldunova, 2019).

One issue with Russia is its increased closeness to China (Singh, 2019). India and Russia have a Reciprocal Logistics Support Agreement that will give rights for mutual use of ports and bases (Press Information Bureau, 2019).

Other Gulf States India has relations with all six GCC states, namely Bahrain, Kuwait, Oman, Qatar, Saudi Arabia, and the UAE. These need to be examined to better understand the

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scenario involving Iran. From the Indian point of view there is also the China factor involved with these countries.

1. Bahrain India has economic ties with Bahrain. The United States Fifth Fleet is located here. Indian Navy representative has recently been located at the USCENTOM headquarters in Bahrain. This is hoped to augment ties. Bahrain has low engagement with China since the US is a major presence in this country (Upadhyaya, 2019, p. 29). The UK has a Naval Support Facility at Mina Salman port in Bahrain (Royal Navy, 2018).

2. Kuwait Kuwait and India have economic and energy ties. There are also refuelling facilities for Indian Navy ships. There are defence ties with NATO. Kuwait is also a close economic partner of China (Upadhyaya, 2019, pp. 30-31).

3. Oman In 2016, the two countries signed a MoU for cooperation on maritime security.

The Royal Oman Navy and Indian Navy have held the exercise NASEEM-ALBAHR since 2007. Oman has recently permitted India to use Duqm port. There is also an MoU with the Indian Coast Guard (Indian Coast Guard, 2018). In 2018 at a bilateral meeting the joint statement endorsed cooperation in maritime security, terrorism, space, and energy security (Ministry of External Affairs, 2018).

Oman supports India’s anti-piracy patrols. The UK maintains a maritime presence in Oman. There is joint exercise with France and USA (Upadhyaya, 2019, pp. 31-32; Royal Navy, 2021). Oman hitherto had energy trade with China, but due to Oman joining the BRI there is enhanced economic cooperation. There is also maritime cooperation including logistic support for anti-piracy patrols.

There is common strategic interest that makes the association thrive. An open question is as to how Oman will balance relations with India. There are suggestions for India to maintain a high level of military diplomacy (Upadhyaya, 2019, pp. 31-32).

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4. Qatar Qatar is the supplier of LNG to India. Qatar has close economic and military ties with India. There is training and technical cooperation between the two navies.

Ship visits have been carried out by the Indian Navy and Indian Coast Guard to Qatar. There are also participations in defence exhibitions (Upadhyaya, 2019, pp.

32-33). Qatar and the United States also have close defence ties. The Forward Headquarters of the USCENTCOM is located at Doha. There are also joint exercises of the two navies. The US was long keen to solve the rift between Qatar and the GCC to build a coalition of GCC with Egypt and Jordan against Iran (Upadhyaya, 2019, p. 33). Some scholars believe that the dispute was due to poor handling of the region by the US under Trump. Qatar was able to withstand the blockade due to its ties with Turkey, Iran and West (Stephens, 2021). At the forty first GCC summit at Riyadh, Qatar has been readmitted (GCC Summit 41, 2021) . India had maintained neutrality during the GCC-Qatar standoff during 20172021 (Upadhyaya, 2019, p. 32). Qatar is the second largest supplier of natural gas to China. Qatar and China held a strategic-level dialogue in Beijing to explore areas for cooperation, including an operational plan for BRI. There are major investments by the Qatari sovereign wealth fund in China. Reportedly, Qatar has also covertly procured SY-400 short-range ballistic missiles from China. China has maintained neutrality in the GCC tensions (Upadhyaya, 2019, p. 32).

5. Saudi Arabia India and Saudi Arabia signed an MoU on Defence Cooperation in 2014 (MInistry of External Affairs, 2014). In April 2016 five new bilateral agreements covering intelligence-sharing on the financing of terrorism, increasing private investment, and enhancing defence cooperation, were signed (Ministry of External Affairs, 2016). The two countries have been engaged in training and capacity building exercises and hydrographic cooperation. The Royal Saudi naval forces have reportedly stepped enhanced naval engagements with the Indian Navy and the Coast Guard. Indian ships undertaking several goodwill visits to Saudi ports since the early 2000s. There are indications that Saudi Arabia is keen to enhance security cooperation with India in the Western Indian Ocean. Joint exercises are reported to be planned for late 2021. Several Saudi officers are trained in India’s military academies. There are also plans for enhancing cooperation on defence production (Pillai, 2021). Most recently the Chief of Army Staff Gen M.M. Naravane made a trip to Saudi Arabia (Press Information Bureau, 2020). This is seen as boosting defence ties (Taneja, 2020). Saudi Arabia

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is the major supplier of oil to China. In 2016 they two countries entered a Comprehensive Strategic Partnership to include cooperation in economic, political and military fields. Since 2016, Saudi Arabia has sought to diversify its economy, as outlined in the Saudi “Vision 2030” and has expressed interest in the BRI, which could potentially provide new opportunities for growth and investments. There are discussions on defence manufacturing. Saudi Arabia is reportedly keen to finance parts of the CPEC. Saudi Arabia is clearly keen to expand its diplomatic alliances beyond the United States. There is the possibility of greater China-Saudi cooperation and strategic influence in years to come. China may overtake India as a partner of Saudi Arabia. However, Saudi may be keen to balance ties with India and China, while continuing to be close to the United States (Upadhyaya, 2019, p. 35).

6. United Arab Emirates (UAE) In the past few years there have been several mutual visits at the head of state level. After the 2015 joint statement there is close cooperation of defence including maritime security (Ministry of External Affairs, 2015). This is still continuing (Ministry of External Affairs, 2018). India’s security cooperation with UAE comprises defence exports, intelligence, counterterrorism, ship visits, combined naval exercises, staff talks and training assistance (Upadhyaya, 2019, p.

36; Embassy of India, 2020). The first Ex GULF STAR 1 was held in 2018. There is participation in exhibitions (Indian Navy, 2021). Most recently the Chief of Army Staff Gen M.M. Naravane made a trip to the UAE (Press Information Bureau, 2020). This is seen as boosting defence ties (Taneja, 2020). There are also plans for France to join the UAE and India in joint Naval Exercises (Pillai, A Proactive Indian Navy: Upcoming Naval Exercises, 2021). It is however not clear if UAE actually joined Ex VARUNA 2021. At a diplomatic level UAE has supported India against Pakistan. There is also a deterioration of relations between UAE and Pakistan (Upadhyaya, 2019, p. 37). China and UAE have a Comprehensive Strategic Partnership since July 2018. There have been several trade delegation visits. There are substantial economic relations between the two countries. However, given the lack of defence ties, it is unlikely to encroach on India’s strategic ties with UAE (Upadhyaya, 2019, p. 37).

International Organisations 1. Indian Ocean Rim Association (IORA)

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IORA (IORA, 2021) could be said to be the closest to a multilateral body for Indian’s Maritime Neighbourhood (Khurana, 2019). France was admitted as a member based on the Indian Ocean territory of Reunion Island (France Diplomacy, 2020). This was apparently possible only after Iran withdrew objections. This is seen as a way of Iran seeking French support with the JCPOA (The Wire, 2020).

2. Indian Ocean Naval Symposium (IONS) The Indian Ocean Naval Symposium (IONS), an Indian initiative, was established in 2008 (Royal Australian Navy, 2020). It brings together 35 navies and coastguards to increase maritime cooperation among navies of the littoral countries of the Indian Ocean Region (Athreya, 2020a, pp. 74-75). Besides Iran, France and the UK are members of this grouping. This too gives India leeway for mediation.

3. International Atomic Energy Agency (IAEA) The International Atomic Energy Agency has been carrying out technical verification of Iranian nuclear assets (IAEA, 2020). Notwithstanding Iran’s planned withdrawal from the deal there is a working agreement on inspections (Al Jazeera, 2021). The IAEA believes that can be a return to inspections (European Parliament, 2021).

Indian Response India is clearly in the midst of regional tensions. It has responded based on existing doctrines and policies. Preserving relations with navies of the Persian Gulf is vital for India to hold its sway in the IOR (Singh, 2015). India has had joint exercises with several Gulf states (Athreya, 2020, p. 52). The two main aims are increasing cooperation and signalling intent to rivals (Athreya, 2020, p. 60).

India has long followed a policy of Strategic Autonomy (Ranganathan, 2020).

Based on these premises there could also be further responses.

1.

Cooperation

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This article started by highlighting the ambiguity regarding India’s participation in a naval drill along with Iran and Russia. There is already uncertainty surrounding Chabahar and the railway line to Zahedan. These are symptomatic of the underlying strain being put on the India-Iran relations due to the US sanctions.

There may be little comfort in the fact that Iran is still open to engagement with India. The recent visit by the Iranian Defence Minister to India shows continued good relations. There are also issues within the GCC. Here too India has been seen as a trusted partner (Athreya, 2020).

2. Signalling to Rivals India has clearly not been successful in signalling to rivals. Notwithstanding the specific reasons India has been absent from Iran. This has created a vacuum that is being filled by China. China too has a massive footprint among GCC countries.

Here too India faces challenges to keep up it’s position. Pakistan too is making inroads into the GCC region. India must be careful to stem this tide.

3. Neutrality The entire Iran crisis has challenged India’s strategic autonomy. India has long been seen as a neutral partner by Iran, Israel and the GCC states. Currently India is effectively the largest country in the region that is trusted by the United States, Iran, Qatar, and even other GCC countries. It is also in India’s interest for Iran to not join the Chinese camp.

4. JCPOA Revival Good Offices The major sticking point with Iran is the revival of the JCPOA nuclear deal. Iran is keen that the US lift all sanctions before any discussions. As a start some immediate measure such as unfreezing assets may be needed (Zamirirad, 2021).

However, the US Middle East allies may not be keen on such a move. There are suggestions for mediation by the EU or European countries (Tabatabai, 2021). There are also suggestions for the UK to take this role and bring together Europe, US, and Iran (Tabrizi, Dolzikova, & Plant, 2021). This fits well with earlier recommendations for mediation between NATO and Iran by India (Athreya, 2020, p. 58). IONS and IORA further create a forum for negotiation.

Given the recent change of government in the United States it is an added opportunity for India to play a conciliatory role.

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Conclusion The current situation in Iran and the larger Persian Gulf has been a major challenge for India due to geography, regional issues, and extra regional powers.

This has affected India-Iran bilateral relations. The US is the major extra regional power active in the Persian. It is also the main player with the JCPOA. The US withdrawal and sanctions have made it impossible for India and most European countries to trade with Iran thereby impacting on energy security. There are also issues around freedom of navigation, and infrastructure. In terms of IR Theory, clearly India has a Realist position. Thus, India was compelled by strategic considerations to follow the position taken by the main global super power the United States of America. India has not been able to uphold the much hyped Strategic Autonomy. There are still opportunities for India to increase goodwill overseas. There can be increased cooperation with all countries concerned. Iran itself is keen on a stable balance of power with there being no major external power. Assuming that the USA could not totally withdraw from the region, the presence of France, UK and India can be seen as a stabilising factor. Once again this shows India's position as a trusted party that follows Strategic Autonomy.

Based on the position of Strategic Autonomy, India is in a unique position to offer good offices to solve the current impasse with the JCPOA and larger issues in the Persian Gulf region. For one India is effectively the only major power that is trusted by Iran, the USA, E3, Russia and GCC states. Further, India has expertise in technological, military, and diplomatic spheres to make an impact.

International organisations like IORA and IONS have a role to play in reconciliation with Iran. Given that France is part of these it can play an intercessor role between the P5+1 and Iran. The UK could take a role in these negotiations. As the lead in IONS India once again has a key role in this regard.

India’s emerging maritime relation with E3 counties would feed into the Iran negotiations. From the point of view of India, it has not been entirely successful in terms of maritime and other diplomatic efforts. There has been no efficacious signalling to rivals in the region. Effectively China and Pakistan have made inroads to Iran. Were India to facilitate a rapprochement between Iran, US, and GCC while including Russia it will do well to increase cooperation with allies.

This would also signal intent to rivals like China and Pakistan. There are suggestions for Track 1.5 and 2 events to increase dialogue. India has think tanks and consulting firms that can provide this service. This seminar by COVINTS is an example of such a forum.

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International Criminal Law and the Governance of Issues Related to Terrorism Anoushka Chauhan NALSAR University of Law, India

anoushkachauhan0@gmail.com

Abstract. Following the events of 9/11, terrorism has taken a central role in the global debates on governance, humanitarian crises, and international relations.

With there being no uniform definition of terrorism that all States can agree upon, forming counter-terrorist strategies has proven difficult. Similarly, the place of terrorism in International Criminal Law is highly contentious, and has not found permanent place within the International Criminal Court. This research paper discusses how international terrorism, despite its lack of a uniform definition, can be placed within the institutions of International Criminal Law in praxis. The paper is divided into three parts. Part I serves as an introductory part, discussing the working definitions of terrorism that have been adopted in customary international law, by the United Nations, and by International Criminal Tribunals, as well as discussing the drawbacks of such definitions. This part explains the reasons for the lack of consensus on a definition, and the implications and complications that arise due to it, such as a violation of the principle of legality.

Part II of the paper briefly looks at how terrorism in international criminal law has developed as a “treaty-crime,” which sets up for the discussion in Part III of how this “treaty-crime” nature of terrorism has posed a hindrance in its inclusion within the established institutions of International Criminal Law, such as the ICC. Despite its complete exclusion from the framework of the Rome Statute of the ICC, this paper discusses how terrorism can still be prosecuted within the ICC as either war crimes, or crimes against humanity. Thus, this paper attempts to show conclusively that despite the hindrances within the debate of terrorism—from the lack of uniform definitions, to the systematic exclusion from the ICC—the development of the legal regime still has ample scope to effectively tackle international terrorism within the institutions of International Criminal Law.

Part I: Working Definitions of Terrorism

The 21st century has seen international terrorism transform into a debate of global importance, specifically after the 9/11 attacks. Acts of non-governmental

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violence, terrorism has taken a central place in matters of international relations, human rights discourse, and international criminal law. In strategizing any effective way to combat terrorism, it is imperative to construct a working definition of terrorism in the first place. However, while the United Nations has sanctioned the war against terrorism in order for states to take universal responsibilities in this regard, there is no consensus on how terrorism is to be defined (Lawless, 2007). The variance in definitions is attributed to the fact that different interest groups attempt to define the word in a way that suits their purpose. For instance, analysts try to evolve a ‘legal’ definition which can be employed in a court of law, while some seek international consensus (Lutz & Lutz, 2005). Interestingly, while the road to incorporate a uniform definition of terrorism has been riddled with obstacles, States in the international community have found ways around it to enact instruments that deal with counterterrorist measures and strategies nonetheless, thereby developing multiple approaches to tackle terrorism, taking into account the differences in opinion that cause the multiplicity of definitions.

Differences in evolving a universal definition stem from many fronts—some groups place the onus of defining terrorism in terms of the motivations for it, while some define it in terms of counterterrorist strategies (Clarke, 2009). Most of the disparity in constructing a definition, however, lies in the motivational aspect of it. Definitions that evolve around motive alone can be observed as classified into two strands. One way to define terrorism is by branding it as ‘politically-motivated,’ while the other takes into account more specific aspects of acts of terrorism, as well as other possible underlying motives that lead to transnational terrorism (Clarke, 2009). Jan Schreiber, as quoted in The Morality of Terrorism defines terrorism as “a political act, ordinarily committed by an organized group, involving death or the threat of death to non-combatants;” (Schreiber, 2014). Similarly, Wilkinson, who focuses his definition along similar lines, has written that “terrorism is the systematic use of coercive intimidation, usually to service political ends. It is used to create and exploit a climate of fear among a wider target group than the immediate victims of the violence and to publicise a cause, as well as to coerce a target to accede to the terrorists’ aims;” (Wilkinson, 2002). Notably, the first of these fails to provide a causal element or link between the intention and the act, which would allow for so broad a conception of terrorist activities, that accidents not attributable to any terrorist activities may also fall within its ambit. Additionally, limiting the result to ‘death, or the threat of death’ is a narrow construction, ignoring various other methods of coercion and violence apart from death (Coady, 2005). Wilkinson’s construction places the onus on “alienated, angry” individuals who are “literally

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brainwashed” into the regime they follow, and ignores the systemic or structural social and political contexts that terrorism may be a consequence of (Wilkinson, 2002). In essence, subsuming terrorism entirely within the ambit of ‘politically motivated’ is reductionist, and has no utilization in strategizing or shaping counterterrorist policies, or guidelines to the same effect.

Some definitions go a step ahead and add more possible motivations to their version of terrorism, including “religious and ideological objectives” in addition to political ones (O’Day, 2004). The Security Council Resolution 1566 reads “political, philosophical, ideological, racial, ethnic [and] religious’ grounds;” (S/RES/1566(2004). Alex Schmid, who comprehensively studied over a hundred definitions propounded by various scholars, stated that the motivations that inspire terrorist activities may range between “idiosyncratic, criminal or political.”

Since the events of 9/11 and the rise in the terrorism debate sparked by Al Qaeda, there has been a rather heavier inclination to construct the word in terms of religious motivations. Another instance of a narrowing construction, definitions that take this form fail to acknowledge the gap that exists between “motivation and justification;” (Clarke, 2009). The terrorist actions of certain white supremacist groups are orchestrated in order to achieve political goals (Wilkinson, 2003). In a similar way, Wilkinson describes Marxist terror in Latin America as, although political in agenda but ideological in its origin.

1. The United Nations’ Approach The United Nation, that has sanctioned the war against terrorism, has taken a more purposive route in not focusing on how its definition of terrorism can close all the aforementioned inconsistencies and conflicts, or how to pin the motivations of terrorist groups, but has focused on developing guidelines for States to tackle terrorism in accordance with how other legal instruments— regional or domestic—may define terrorism according to their identifiable purposes and motivations. The General Assembly resolution 49/60 reads: “[A]cts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes are in any circumstance unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or any other nature that may be invoked to justify them.”

Backed by the fact that there is no agreeable definition that the States can form a consensus on, this remains non-binding in nature, but shares consensus on its

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substantive element. Similarly, Resolution 1566 (2004), which was enacted in order to fulfil the obligations prescribed under Security Council Resolution 1373 (2001) (S/RES/1373(2001), referred to “terrorism” as the following: “...criminal acts, including against civilians, committed with intent to cause death or serious bodily injury, or taking of hostages, with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government or an international organization to do or to abstain from doing any act, which constitute offences within the scope of and as defined in the international conventions and protocols relating to terrorism, are under no circumstances justifiable by considerations of a political, philosophical, ideological, racial, ethnic, religious or other similar nature, and calls upon all States to prevent such acts and, if not prevented, to ensure that such acts are punished by penalties consistent with their grave nature.”

Arguably binding, this resolution has had a considerable impact. It cannot possibly purport to have States implement a singular definition of terrorism, yet it has helped in ironing out the differences between the various definitions of terrorism adopted by States in their national framework of laws, and has had an impact on the light in which subsequent definitions of terrorism have been shaped (Reuven, 2006).

2. Terrorism in International Criminal Law There exists no agreeable definition of terrorism yet, that has achieved consensus at an international level. However, the Special Tribunal for Lebanon attempted to define “transnational terrorism” in its Interlocutory Decision, claiming that the definition forms a part of Customary International Law (“CIL”). The Decision (STL-11-01/1) explained that since there have been multiple UN resolutions, the existing legislations regarding terrorism in national frameworks, and the judicial practice of states depicts that there is opinio juris and consistent state practice that shows a definition of terrorism has been accepted as being part of customary international law. It further reads, that: “This customary rule requires the following three key elements: (i) the perpetration of a criminal act (such as murder, kidnapping, hostagetaking, arson, and so on), or threatening such an act; (ii) the intent to spread fear among the population (which would generally entail the creation of public danger) or directly or indirectly coerce a national or

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international authority to take some action, or to refrain from taking it; (iii) when the act involves a transnational element.”

For a norm of customary international law to come into existence, it must enjoy opinio juris and observably consistent and uniform state practice (Cassese, 2003).

The take on transnational terrorism as part of customary international law, as the Tribunal had stated, was very heavily criticized on several grounds. Firstly, it drew majorly from United Nations resolutions, most of which are not even binding in nature and do not indicate the existence of a customary definition of terrorism.

Furthermore, they reiterate sectoral offences, and do not include any special intent or motive in the way terrorism is defined (S/RES/1566(2004)). As mentioned previously, the approach of the United Nations has been to provide guidelines that would assist States in tackling terrorism under various other regional or international instruments. There are several sector-specific treaties addressing the methods and crimes of terrorists, which was an approach adopted specifically for the reason that States could not reach an agreement on what constitutes terrorism. Therefore, while several of those specific crimes, as they are enlisted in the relevant treaties, may have attained status of customary international law, the definition of terrorism itself does not arise to that level (Saul, 2012). Ultimately, while some of these regional or domestic instruments may have attained the status of forming customary international law, the definitions they prescribe do not form CIL per se, and while a customary definition of terrorism is positively evolving, but does not agreeably exist as of yet.

3. Implications No universal definition of terrorism enjoys international consensus, as each carries a different set of political sensitivities along with it. The United Nations does not provide a single way to theorize terrorism in its Resolutions that call for cooperative action amongst States, and consequently, States will often end up with different ways of combating terrorism, with little cooperation or cohesiveness between different States’ approaches (Hardy & Williams, 2011).

Due to this problem, domestic legislations that penalize terrorist acts might even violate the principle of legality as well.

However, the lack of consensus on how to define terrorism and tackle has not posed much obstruction in counterterrorist efforts adopted by States that they do agree upon. These efforts reflect regional priorities. For instance, the Arab Convention for the Suppression of Terrorism (1999) distinguishes between unlawful terrorist acts, and those aggressive or violent acts that are a part of a

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legitimate struggle against any occupation or transgression by foreign forces. In this instrument, the latter is exempt from being prosecutable in criminal proceedings. Other regional instruments such as the Organization of the Islamic Conference (OIC) Convention on Combating International Terrorism (2002) in Article 2(a), and the Organization of African Unity (OAU) Convention on the Prevention and Combating of Terrorism (2003) at Article 3(1) follow suit.

However, the struggle with such regional instruments can be observed when their approach to pursuing wider international cooperation on countering terrorism conflicts with its Member States.

Some international instruments follow a sectoral approach. Similar to the Resolutions adopted by the United Nations, the purpose is to identify and enlist the criminal elements of the punishable acts, as opposed to searching for a catchall definition of terrorism. In this regard, Article 1(1) of the Council of Europe Convention on the Prevention of Terrorism, which was adopted in 2005, Article 2(1) of the Inter-American Convention against Terrorism (2013), and Article II of the Association of Southeast Asian Nations Convention on Counter Terrorism (2017) are particularly noteworthy.

Interestingly, the Shanghai Convention on Combatting Terrorism, Separatism and Extremism (2001) in its Article 1(b) adopts a “hybrid” approach, wherein it cross-refers to existing anti-sectoral treaties, whilst also providing a definition that reflects the regional priorities of the Convention. It reads as follows: “[A]ny other act intended to cause death or serious bodily injury to a civilian, or any other person not taking an active part in the hostilities in a situation of armed conflict or to cause major damage to any material facility, as well as to organize, plan, aid and abet such act, when the purpose of such act, by its nature or context, is to intimidate population, violate public security or compel public authorities or an international organization to do or to abstain from doing any act, and prosecuted in accordance with the national laws of the Parties.”

Part II: Terrorism as a Treaty Crime in International Law As has been discussed above, there is no customary definition of terrorism that is agreeable in the international community as of now. The Special Tribunal for Lebanon’s attempt to propose that terrorism—along with crimes such as war crimes—is accepted in customary international law, was heavily criticized and nearly never accepted. The 19 treaties that have been developed and enacted to

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combat terrorism have followed the way paved by the United Nations in its Resolution 49/60. Therefore, terrorism has evolved to become, in the international community, a treaty-based crime.

Since these treaties cannot define the ‘crime’ of terrorism at the outset, the effect and goal of the treaties is to prevent and deter or dissuade terrorist activities by urging States to adopt substantive and procedural law tackling terrorism, and to strengthen the criminal justice system in such a way that it can effectively criminalize terrorism. These treaties, such as the International Convention for the Suppression of the Financing of Terrorism (1999) creates an obligation upon the State parties to adopt measures that limit financing of terrorist activities. Of course, these instruments, like all others of international law, work in tandem with accepted human rights norms. Article 21 of the International Convention for the Suppression of the Financing of Terrorism (1999) specifies that the rights and responsibilities of States under International Law will remain unaffected irrespective of its application. Article 5 of the Convention of the Suppression of Terrorist Bombings (1997), and Article 6 of the Convention for the Suppression of Acts of Nuclear Terrorism (2005) include explicit reference to the mens rea or mental element of criminalizing an act, an essential component of criminal law, while Article 11 of the Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation (2010) guarantees ‘fair treatment’ to those brought under it, in accordance with established international human rights law. It reads: “Any person who is taken into custody, or regarding whom any other measures are taken or proceedings are being carried out pursuant to this Convention, shall be guaranteed fair treatment, including enjoyment of all rights and guarantees in conformity with the law of the State in the territory of which that person is present and applicable provisions of international law, including international human rights law.”

While defining terrorism has been a task that lacks consensus in the international community, specific treaties, such as the aforementioned ones, have been enacted to counter terrorism despite the lack of definitional uniformity. One of the key aspects of a legislation or treaty may be to define its subject matter, but the multiplicity of counter-terrorism treaties indicate that not only can terrorism be dealt with without having a common definition, but in fact, each treaty can counter terrorism from a specific perspective, taking into account regional differences that cause the difference in agreement. While the codification of terrorism in multiple treaties serves its purpose, its evolution as a ‘treaty crime’

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poses a problem in its inclusion within institutions of international criminal law, which is discussed in Part III.

Part III: Terrorism in International Criminal Law The place of terrorism within the scope of International Criminal Law has been heatedly debated upon. Multiple treaties have been enacted globally to tackle the different aspects of terrorism. However, despite the evolution of terrorism as a treaty crime, its exact nature has posed a hindrance from its inclusion in statutes of International Criminal Law, such as the Rome Statute of the International Criminal Court. The Special Tribunal for Lebanon attempted to codify within its jurisdiction the crime of terrorism, by defining it as having a place in customary international law. The Interlocutory Decision stated that it enjoyed opinion juris and evinced consistent and uniform state practice. However, as it drew upon the approach of the United Nations towards terrorism, it did not meet the threshold of forming customary international law. For these reasons, among others, terrorism has not yet been categorized as a crime in any statute codifying International Criminal Law. This part analyses the reasons for exclusion of terrorism due to its nature as a treaty crime, and argues for alternative ways in which acts of terrorism can be criminalized by categorizing the acts under other crimes that are codified in International Criminal Law.

1. Exclusion of Terrorism from the Rome Statute of the ICC International Criminal Law has been institutionalized by the establishment of the International Criminal Court, governed by its law enshrined within the Rome Statute. It postulates four ‘core’ crimes—genocide, crimes against humanity, war crimes, and the crime of aggression. Subject to multiple debates and years of drafting, the issue of whether to accept and include terrorism as a core crime in the subject-matter jurisdiction of the Rome Statute was inevitably debated upon.

In fact, it was crimes such as hijacking, drug-trafficking, and terrorism that prompted Trinidad and Tobago, to restart the debate of establishing a permanent and independent international criminal court within the General Assembly (UN Doc. A/RES/44/89). Ultimately, in the lengthy process of codifying the Rome Statute, terrorism was rejected from finding a place in the core crimes of the Statute. The reasons for this were several. First, as would be reasonably expected from the aforementioned discussion on the disagreeability of defining terrorism, States could not settle upon a way to define terrorism within the Statute that would envelope all regional interests and political sensitivities. States that formed

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part of the Preparatory Committee of the International Criminal Court “were of the view that international terrorism should not be included [within the jurisdiction of the ICC] because there was no general definition of the crime and elaborating such a definition would substantially delay the establishment of the Court;” (Report of the Preparatory Committee, Supplement No.22, A/51/22,1996). The various proposals submitted by States such as Algeria, India, Sri Lanka and Turkey, to include terrorism within the mandate of the Court did not enjoy sufficient consensus (UN Doc. A/CONF.183/C.1/L.27/Corr.1).

Terrorism, along with drug-trafficking, was categorized as a treaty crimes, as it has priorly been dealt with in multilateral international instruments under the auspices of the United Nations (Schabas, 2017). Terrorism also did not see consensus on its inclusion within the Rome Drafts as some states deemed it to be ‘less serious’ of a crime than crimes against humanity, genocide, and the other core crimes (Daniel & Nsereko, 1999). The Final Act of the Rome Conference included a resolution urging the Review Conference to reconsider the exclusion of the ‘treaty-crimes’ from the Statute (UN Doc. A/CONF.183/13 (Vol. I)), but the attempt was abandoned altogether in the Review Conference’s Report (ASP/8/43). Of course, most of these reasons can be fundamentally attributed to the disagreement that sparks when States attempt to define Schabas suggests that the most convincing explanation for having left terrorism out of the jurisdiction of the Statute was that unlike the core crimes of crimes against humanity, genocide, aggression, and war crimes, terrorism does not face the same amount of impunity that the former do. Terrorism is often non-governmental violence, while the core crimes are perpetrated by governments themselves, or the governments are complicit in their commission (Schabas, 2017).

2.

Terrorism as a Crime Against Humanity or War Crime in the ICC

Nevertheless, the exclusion of terrorism from the ratione materiae should not become a permanent obstacle. One possible way is to limit ‘terrorism’ in the ICC to only those specific instances which would already fall under the ambit of the accepted international anti-terrorism agreements (Wertheim, 2003). Scholars argue the possibility of prosecuting acts of terrorism as crimes that are enlisted under the Rome Statute. Depending on whether the act of terrorism is situated outside or without an armed conflict, or whether it has a nexus to an armed conflict, it may possibly fall under the scope of either crimes against humanity, or war crimes respectively.

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The International Criminal Tribunal for the Former Yugoslavia concluded in Galic that terrorizing a civilian population during an armed conflict constitutes a war crime (Galić, 2003; 2006). The Appeals Chamber concurred, holding that such an act is a violation of international humanitarian law. While the Rome Statute does not include terror as a war crime under Article 8, it does provide for the possibility of both state and non-state actors being prosecutable if involved in “intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities” in either international, or non-international armed conflicts, in Articles 8(2)(b)(i) and 8(2)(e)(i) respectively.

Thus, with the further additions of meeting specific mens rea components of the crime, if the actus reus of terrorist acts aligns with the actus reus of the specific war crime, it may be prosecutable within the International Criminal Court (Van der Wilt & Braber, 2015).

Alternatively, terrorism may be classified as a crime against humanity (Arnold, 2004). The history of terrorism being classified as a crime against humanity dates back as early to 1919, when the Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties provided that “‘systemic terrorism’ was considered a crime against humanity;” (Arnold, 2004). In the International Criminal Tribunals of the Former Yugoslavia and Rwanda, crimes of terror have been prosecuted as either persecution or ‘inhumane acts,’ (Krstic, 2001) the latter being a residuary category to prosecute grave crimes which do not fall under the ambit of any of the other specific crimes. Several judgements of the International Criminal Tribunal of the Former Yugoslavia, in the form of obiter dicta indicate that crimes of terror have found place as a crime against humanity (Kupreskic, 2000). The ICTR laid out an interesting formulation, stating that the use of terror or terrorist methods, when resulting in serious mental or physical harm, when committed with the requisite mens rea, could amount to genocide (Kayishema, 1999).

In the International Criminal Court, Article 7 defines a crime against humanity.

With an illustrative list of the specific acts that can be charged as crimes against humanity, it requires that the ‘attack’ be based on a policy, which when read in conjunction with the Elements of Crime, can be directed by state or non-state actors (Arnold, 2004). Therefore, depending on whether the act of terrorism has the same actus reus as that of the specific offences enlisted under Article 7, such as murder, or imprisonment, torture, or other inhumane act, etc., terrorism can possibly be charged as a crime against humanity. The mens rea component would only require that the perpetrator have the intention to commit the underlying offence, such as that of murder or imprisonment or torture, whichever be the case.

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Conclusion Terrorism has been an issue of global relevance in humanitarian law, international criminal law, and a hot topic in matters of international relations as well. Most attempts to combat terrorism face the singular problem of having to define it in a way that attracts consensus. However, owing to different regional priorities and different perspectives that States adopt, there is no agreeable definition of terrorism in the international community as of yet. This has not posed a problem in enacting international instruments that combat terrorism based on specific acts, adopting ‘sectoral’ approaches. While some of these instruments may have attained the status of customary international law, no definition of terrorism forms customary law as of yet. Due to this, and the disagreement between states on how to define terrorism, this ‘treaty-crime’ did not find its place in the Rome Statute of the International Criminal Court. However, there is a possibility to charge and prosecute acts of terrorism within crimes against humanity or war crimes, if the actus reus of the terrorist act, and core crime align. Subject to the mens rea requirements prescribed for the crimes, the exclusion of terrorism from the ICC may not be an absolute bar to bringing to justice the victims that have suffered due to international terrorism.

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Armouring the Climate: QUAD’s Approach to Protecting the IndoPacific Poulomi Chatterjee Contributing Researcher, Global Law Assembly poulomi@globallawassembly.org

Abstract. When the QUAD reassembled, the majority of the involved member countries wanted to focus on upcoming issues such as that of cybercrime and security, while taking the issue of climate change for granted. However, this view changed when it was realised that long term climate degradation has led to a variety of disasters including viruses, flues, and diseases, aside from the range of disasters categorised as earthquakes, tsunamis, etc. which have hit the habitat of human beings at a degree so large, it has alarmed the need to act promptly in this favour.

The QUAD has taken up the emerging issue of climate change amongst other issues, aiming to make the Indo-Pacific region a safe space for habitation, while also protecting the area from any geopolitical concerns. The instant paper thus discusses QUAD’s approach to protecting the climate of the Indo-Pacific region, while putting an armour over it. The paper also discusses various strategies taken by the member countries of the group pertaining to the issue of climate change.

In order to free the region from any further climate disasters after the advent of the coronavirus pandemic in 2020, the QUAD has decided to follow the Paris Climate Agreement in order to aid to the drooping climate, which focuses on lowering the rising temperatures to at least 1.5 degrees celsius, while supporting it with the slogan of ‘1.5 to stay alive.’ Several countries across the globe have joined the agreement in support of climate, due to which a window of new hope has emerged.

Keywords: Quadrilateral Security Dialogue, Climate, Indo-Pacific

Introduction After decades of stalling the Earth's tears, the world was hit by a devastating outbreak of a deadly and fatal virus, which brought the world's most responsible members back to their senses, urging them to act as quickly and cleverly as

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possible, in order to avoid such future disasters and mishaps. Although it is difficult to ascertain that the pandemic and the issue of climate change are interrelated, the same was hinted by Dr Robert M. Byer amongst other scientists who claimed that the rising issue of climate change was one of the causal factors that led to the emergence of the COVID-19 pandemic. To come to this conclusion, they explained that due to the varying and unstable factors of climate change, such as the evolving temperature, atmospheric carbon dioxide, including the cloud cover have directly impacted the natural growth cycle of plants and trees, which has led to the destruction of various ecosystems and natural habitats, causing tropical shrublands to transform into tropical savannahs and deciduous woodlands (Robert, Andrea, et. al., 2021).

This in turn contributed to facilitating a suitable living environment for the species of bats who prefer to live in forests. The team of international researchers further revealed that large-scale similar changes have been observed particularly in the Chinese province of Yunnan. Furthermore, it was also observed that approximately 40 bat species had moved to the province in the past century, all of whom carry hundreds of different bat-borne coronavirus diseases, which proves Yunnan, China as the global hotspot of SARS-CoV-2, i.e., one of the many variants of the several coronavirus diseases present amongst the bats in the province of Yunnan, who emerged due to the unstable factors of climate change (Robert, Andrea, et. al., 2021).

Amongst this horrible sequence of events, a group of countries in the Indo-Pacific finally reassembled after much thought, which was then eventually formally defined as the Quadrilateral Security Dialogue (QUAD), which is also sometimes known colloquially as the ‘Democratic Security Diamond.’ The QUAD is made up of four countries that have banded together to avert a range of security challenges, one of which being climate change, which will also be discussed in a ray of light in the instant paper. The prima facie goal of their collaboration is supposed to combat China's challenges to the Indo-Pacific area in particular.

Following the formation of QUAD, China considered the alliance as a threat and labelled the organisation as an Asian equivalent of North Atlantic Treaty Organization (NATO), working together to undermine the growth and prosperity of one country (Ananth, 2020). However, the group did not intend to undermine the growth and prosperity of China, but simply came together to bring a variance against the monopoly of only one country as well as for protecting the region of Indo-Pacific from geopolitical threats.

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The QUAD has not come together for the first time, but had pursued their strategic alliance much before its formation, i.e., in 2004 when India was hit by a deadly tsunami and a catastrophic earthquake, where Japan, Australia, and the United States, along with India had joined hands to create a safe space for living. As a result, the QUAD is an informal communication amongst its aforementioned member countries (Tanvi, 2017). The group's goal is to solve developing geopolitical and geo-economic challenges while also developing global strategic alliances in the same setting. In 2007, the then Prime Minister of Japan, Mr. Shinzo Abe, suggested the idea of the QUAD's functioning, inspired by the four nations' effective level of teamwork after the incident of 2004’s deadly earthquake and tsunami in the territory of India, with the aim to join together with the three countries and protect the area of the Indo-Pacific (Prime Minister of Japan Mr. Shinzo Abe, 2007). However, owing to Chinese pressure, Australia was unable to continue with the group of QUAD until the disastrous pandemic hit the world in the disastrous year of 2020 (Geoff, 2021).

Following the occurrence of the pandemic, the ties between China and Australia, which was referred to as a comprehensive strategic partnership, began to deteriorate when Australia detected significant rumours about China having an intentional aim regarding the emergence of the fatal COVID-19 (David, 2021).

Subsequent to that, the group of QUAD then became a reality after Australia accepted India's request to participate in the Malabar Exercise of 2020, which came about to be one of the main aims of their coming together. During the same year, the group convened in a virtual summit to discuss their main goal as well as remedies to the current concerns regarding the Indo- Pacific region and security.

On their virtual meeting, the alliance discussed four main areas they need to act upon which include; firstly, maritime security and co-operation, intending to ultimately make the Indo-Pacific region of a free and secure nature, in consonance with the Free and Open Indo Pacific (FOIP) Strategy disclosed by Japan and the US; secondly, discussing applicable solutions in order to tackle the complexities that arose because of the COVID-19 pandemic, as well as addressing the concern areas regarding the production schemes for vaccines and its distribution across the globe; thirdly, climate change as one of the main highlights being discussed in the instant paper, in light of the repercussions caused by the same, such as that of the pandemic and several other disasters, all of which have been discussed at length later in the paper; and fourthly, strengthening the Indo- Pacific region’s economic and technological capabilities by producing a variant of their own rare earths, i.e., material needed to produce competent technology. This is because

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China has the monopoly of producing rare earths, due to which it has an ability to have a technological reign all over the world.

Thus, the instant discussion paper will seek to address the newly emerged issues in the context of climate challenges, with the pandemic being the most severe consequence of the same. Furthermore, the author will also attempt to demystify the group of QUAD's roles in climate change while also alluding to numerous domestic initiatives that nations have implemented. Finally, the author will attempt to provide remedies to the developing issue of climate change, on which world leaders should move as promptly as a fox in order to secure a safe future for the youth of tomorrow.

Paris Climate Change Agreement: How it all Started When the matter of climate action and climate talks and similar discussions take place, the first thing that comes to the minds of the general public is the Paris Climate Change Agreement which was signed by the United Nations Framework Convention on Climate Change (UNFCCC) in 2016, when a total of 196 countries came together to join the Agreement of delivering a safe future for the youth of tomorrow. In consonance to this, the signatures of 196 countries were collected in the COP 21 (the 21 Conference of Parties) in a time period of November 20, 2015 to December 12, 2015 respectively. st

The Paris Climate Change Agreement then became a legally binding international agreement related to the movement of climate change when it officially entered into force on November 4, 2016. This agreement of Paris Climate Change strategically aims to limit the level of global warming to less than 1.5 to 2 degrees celsius, as compared to the pre-industrial levels. In order to achieve this long-term benchmark set in regards to the desirable temperature, the group of 196 countries contribute little by little, after which they report their results at the end of an interval to the respective authorities of the United Nations Framework Convention on Climate Change (UNFCC). These nations resort to attaining the global peal of greenhouse gas emissions as soon as it is feasible, in order to create a climate neutral planet by the mid-century, i.e., by 2050 respectively. In context of this, before the emergence of the Paris Climate Change Agreement in the COP 21 (the 21 Conference on Parties), the respective countries were asked to submit their respective Nationally Determined Contributions (NDCs) with respect to acting in favour of climate change during the power of Kyoto Protocol in regards to prompt climate action. st

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Although the same was not framed under a legally binding contract, it stood as an obligation for the concerned countries involved in the Kyoto Protocol. Thus, through this, we can gather that the Paris Climate Change Agreement is essentially a bottoms up approach of processing information. This essentially means that the information which will be processed will be presented before us by way of analysing the incoming data from the environment in order to form a final perception (Robiou & Meinshausen, 2018). Moreover, the agreement of Paris Climate Change also asserts the necessity of achieving the 20-20-20 target in order to improve the climate situation in the world. In simpler words, a small part of the agreement aims to bring a 20 percent increase in efficiency of energy use, a 20 percent decrease in reduction of Carbon Dioxide (CO ) emissions, and to be able to achieve a total of 20 percent renewables by 2020.

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In this context, these targets have to be achieved, but it is also important to ascertain what has actually caused such repercussions. It is submitted that it has been long decades and centuries since human activities have started causing trivial issues like causing the emissions of greenhouse gases like Carbon Dioxide (CO ) and methane, which ultimately leads to an excess of greenhouse effect, leading to global warming. Global warming takes its turn in increasing the temperature of the earth.

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Strategically Dealing with the Repercussions of Climate Change It has been reported that the year 2016 acted like a calm before the storm, since during that time, it had been observed that the average temperature in comparison to the average temperature of 1880 was 1.3 degrees celsius higher. (Agence, 2020) However, in this context, it is submitted that this value has been increasing at an alarming rate, which has been one of the prime causes of ultimately causing numerous climate disasters including forest fires and a series of triple disasters as well as threat of viruses, such as the Influenza as well as that of the instant pandemic. (Agence, 2020) Thus, it becomes necessary to act promptly in such scenarios and efficiently reduce greenhouse gas emissions, all in order to save the world and allow a healthy climate in the future for the safety of the youth of tomorrow which will be coming about in the next few decades (Lumpur, 2020).

This is because, due to the emergence of such new viruses, flus, and diseases, as well as the increasing temperature which is leading to long term effects of climate

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disasters, the health of the new -born infants as well as those who are of a biologically weak immune system have been getting affected tremendously through this terrible series of events.

Since the year of 2020 has been reached, in consonance with the targets in regards to the 20-20-20 goals which were to be achieved by the lot of committed countries, it becomes extremely imperative to analyse the performance of such goals in any case. It has been observed through various reports citing several data that the 20 percent reduction of greenhouse gas emissions target had been reached well before 2020, i.e., in 2015, while the target regarding the increase of renewable energy sources was getting closer by day. Further, it was also observed that the greenhouse gas emissions during 2016 decreased even more as compared to 2015, which allowed the proxy greenhouse gas emissions to reduce to approximately 23 percent below 1990 levels and a reckoning 27 percent below 2005 levels. Although the progress that has been made so far is impressive, it must also be noted that in order for the earth to battle its tears, the whole globe should be acting towards climate change, rather than a few countries at hand. Moreover, if individual countries fail to reach their contributions, they may be left behind in a catastrophic climate disaster, while the rest of the world may also be at risk.

In context of this, according to the data cited in 2015, a total of 27 member states had successfully met their promised contributions under the target of reducing greenhouse gas emissions, while several others also failed to do so. This not only puts the whole globe at risk, but also poses a big threat to those individual countries who fail to act for the issue of climate change.

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Figure 1: Achieving 20- 20- 20 Targets by 2020: A Progress Report (European Environment Agency, 2017)

It can be ascertained from an observation of Figure 1 that the percentage of renewable energy was counted in the gross final energy consumption from 2005 for renewable energy. Furthermore, it was recommended that the 2020 energy efficiency objective should be set at a 20 percent reduction in energy use beyond baseline estimates, equating to a 13 percent reduction in primary energy consumption as compared to 2005 levels. The graph further illustrates the relative change in primary energy usage since 2005. The reduction goal for greenhouse gas emissions by 2020 is a 20 percent reduction from 1990 levels. The graph depicts changes in emissions compared to 1990 levels and shows trends and projections. These projections are essentially based on the scenario with existing measures, which incorporates policies and measures that have already been enacted.

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It is submitted that through the survey conducted in the matter of Climate Security Risk Perception by the IMCCS Expert Group in December 2019, there is a reckoning 100 percent increase of climate risks in the next twenty years, i.e., between 2020 and 2040, if the appropriate targets in consonance with climate action are not achieved and if prompt action is not taken. Furthermore, it was also predicted by the survey that approximately 93 percent of military and security respondents believe that the climate repercussions will highly impact the security of water which will present even higher risks to the global security overall by the next ten years, i.e., by 2030. In addition to this, 91 percent of the parties involved in the survey predicted even more severe disasters and challenges such as that of the instant pandemic will be presented in the next twenty years, i.e., by 2040 (IMCC, 2020).

The Emergence and Re-emergence of QUAD as a Colloquial Group The Indo-Pacific region has witnessed the revival of the QUAD again in recent years, while standing stronger with an established framework, consisting of a podium which allows discussions on pressing issues related to the Indo- Pacific and its overall regional security. The revival of the mechanism of QUAD has revived the strategic interests between its four member states, i.e., India, Australia, Japan and the US. It is wrapped with golden virtues of freedom of movement and openness as well as respect for the international order, while it continues to build a web of bilateral and trilateral alliances across the four nations. Thus, the revival of QUAD promises a constructive platform for implementing its golden virtues in order to mend the current malpractices being pursued across the Indo-Pacific region, and to bring regional order. However, the re-emergence of the QUAD group has also led to suspicion and doubt, due to the rumour of it being solely being against China, it being the four democracies’ significant interest to defeat, keeping in mind the ultimate welfare of the Indo-Pacific region. The credit of the first step taken towards reviving the QUAD group goes to the former US President Donald Trump, who in his keynote to the 2017 APEC Leaders’ Summit in Vietnam expressed for availing a Free and Open Indo Pacific (FOIP), which has now also been embedded in the national security strategy of the US respectively.

While the intent behind the emergence of group of QUAD remains to be ‘ambiguous’ and not directly aiming to destroy the reputation of China, one of its main aims is to bring competition and self-sustenance in a world where China has

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already been gaining predominance, in order to defy a complete delegation of reign and power to only one country (Anthony, 2018). Thus, although the counterparts of the concept have categorised this series of events as targeting Chinese power, the QUAD group, in fact, simply aims to bring major democracies together and build a network of resources as a self-sustenance measure, i.e., to basically dilute the predominance of China, and ultimately which stands as a necessary element for attaining global peace.

While on the emergence of QUAD, the majority of the group wanted to focus on addressing the emerging issues of cybersecurity and transnational crime, when the issue of climate change was brought about, the same was categorised as a nontraditional threat issue, which might not need much attention as the other issues revolving around individual countries of the group of QUAD, relying upon Fiji’s Prime Minister, Frank Bainimarama’s critique, of Australia taking a selfish stance on the issue of climate change, while affecting the island countries surrounding it (Michael, 2018). The framework which was thus proposed through the emergence of the group QUAD, however, has provided the ability to address such issues particularly, since it overlooks the overall security of the Indo-Pacific region, and not only focused on traditional threats and crimes.

The Urgency of QUAD 2.0 to Act Promptly and the Concept of QUAD Plus It has also been recently contended that in recent times, due to these horrifically inspiring series of events, the region of Indo-Pacific has started emerging as an extremely important area which is driven by the common and strategic interests of the QUAD group collectively, where each member state is empowered with their own sets of inspirations for working in the group (Medcalf & Mohan, 2014).

This common strategic interest is mainly regarding the emerging geostrategic and geo- economic shifts which have recently emerged in the era of the COVID-19 pandemic. It is contended that the next several decades may be taken over by the strategic competition dominated mainly by the issue concerning maritime and blue economy, after the emergence of COVID-19, the fatal virus, as a wake-up call. Thus, this acts as the sole reason for Quad 2.0 to act as promptly as possible, in regards to these concern areas that have been discussed in brief.

Moreover, since the Chinese expansion has been proven to be a threat to its neighbouring countries as well as the whole world due to its dominance over most powerful sectors, which includes its advantage in monopoly of production in rare

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earths, it stands at an extremely high power, due to which if alliances with China are broken, it may pose as a serious threat even to the industrialised nations. This presupposes the fact that despite having a strong backdrop, even developed countries have their own perils of breaking their ties with China. This also includes the heightening rivalry between the US and China relationship, which has led to the very start of a possible war like situation, for which the QUAD group has emerged in interest of preventing these situations, where idle countries have been desperately looking for alliances and partners to justify their long-term strategic and economic cooperation in order to go beyond the unipolar or bipolar dynamics suggested by the US and China.

This is because a guaranteed negative spike has been already predicted in the uncertainty and instability of supply chain risks. In addition to this, an all the more reason for the QUAD group to act promptly is due to the eminent danger being posed by China to the rest of the world, dictating its role in the whole pandemic, as well as its constant attempts to take over institutions like the World Health Organisation (WHO) as well as its territorial aggression on the land of India by using coercive trade practices for targeting Australia which broke the strategic alliance between it and China. It is believed that the emergence of the group of QUAD can also very well be a strong alternative towards China’s Belt and Road Initiative (Rajah, 2020).

According to India, the QUAD is defined as the Indo-Pacific region which stretches over the areas consisting of the Western coast of North America to the Eastern shores of Africa and everything in between or coming on the way (Elizabeth, 2020). Furthermore, the vast area of the Indo-Pacific region comprises 38 countries and shares a total of 44 percent of the world’s total surface area, where more than 64 percent of the whole world’s population is also situated, constituting more than half of the world. This area accounts for about 62 percent of the world’s global GDP which includes more than 50 percent of global traversing through the waters surrounded by the countries in the IndoPacific region.

Japan has been strategically considering the concept of ‘QUAD Plus,’ where the foreign minister of Japan, Taro Kano claimed that the same could be a strategic alliance between Britain, Japan, and France, with a view to expand the interests of the dialogue between QUAD as a whole. However, the same still remains as a plan or strategy, which is difficult to be implemented, since factors of trust still exists between France and Britain towards China, and even if they agree to join

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the dialogue of QUAD, they have a high possibility of exiting in case the US decides to exit due to external aggression and national security, which is another factor of unreliability.

India’s Role in the Indo- Pacific For India as a rapidly emerging nation, the concept of Indo-Pacific has been articulated by Prime Minister Narendra Modi as the doctrine of SAGAR, i.e., promoting ‘Security and Growth for All in the Region.’ It is submitted that this notion has been established as a high priority with the goal of ensuring prosperity for all stakeholder nations while adhering to established norms and laws and maintaining freedom of passage, ultimately spreading the idea of a Free and Open Indo Pacific (FOIP).

In 2019, at the platform of East Asia Summit in Bangkok, India had first announced the concept of Indo- Pacific Oceans’ Initiative (IPOI) which was established mainly in order to support the formation of a binding regional architecture centred on seven pillars, namely, maritime security; maritime ecology; maritime resources; capacity building and resource sharing; disaster risk reduction and management; science, technology, and academic cooperation; and trade, connectivity and maritime transport. The concept of Indo Pacific Oceans’ Initiative (IPOI) is based on our country’s ‘Act East’ and ‘Act West’ policies which basically focus on the Eastern Indian Oceans and the Western Pacific as well as the Western Indian Ocean respectively, in order to widen the scope of the Indo-Pacific region by indulging itself with a vast variety of issues concerning the region as well as seeking to expand by looking for appropriate opportunities which are beyond traditional security threats and geostrategic concerns.

Challenges related to economic, environmental and technology also come under this umbrella. Thus, in this manner, India and Australia have been cooperating and collaborating with their powers in strategic interests towards the concerned area of maritime security and safety, while also protecting the marine environment of the Indo- Pacific region as well. India categorises its closest neighbours as its highest priority (this includes all the South Asian countries) and its outer neighbourhood (which includes Gulf States in the West and the Southeast Asia and ASEAN countries in the East) while it has also partnered with several other like- minded nations in the Indo-Pacific region, ranging from the Pacific Islands to the archipelagos, to the Western Indian Ocean, and off the Eastern coast of

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Africa, as well as the ultimate group of QUAD, consisting of US, Japan, and the Australia along with India itself.

India has also partnered with Japan and Australia solely in the context of the Supply Chain Resilience Initiative (SCRI). In the context of the dialogue between QUAD, being inspired by the coalition, several like- minded nations like South Korea have agreed to join the group to respond to the repercussions of climate change and the pandemic collectively, which proves that the formation of groups like that of QUAD can be efficient and beneficial to not only the Indo-Pacific, but also the world at large. Furthermore, in this context, if the dialogue between QUAD wishes to expand its scope as was stated by the foreign minister of Japan, Taro Kano who wished for a mechanism of QUAD Plus to emerge and let the nations of France and Britain to join the dialogue, it can instead focus its powers on merging the trilateral arrangements which have been mentioned above, i.e., the arrangements of India-US-Japan, India-Japan-Australia, and US-JapanAustralia, respectively.

Moreover, according to Mr. S. Jaishankar, who is the Indian Foreign Minister, the Indo-Pacific region essentially articulates the confluence of the Indian and the Pacific Oceans that cannot be handled as distant spheres due to the lack of connection. Thus, it is supposed to be an idea which states that the world in future, if the Indo-Pacific related strategies are adopted, states may not remain frozen and idle and promote security, stability, peace, and prosperity towards the whole region, which may ultimately be a vital part of the security of the whole world itself. Moreover, it has been often stated that the concept of the IndoPacific is not a concept of tomorrow’s forecast, but a mirror reflecting yesterday’s reality.

Strengthening Climate Diplomacy Across the Indo-Pacific Region As had been discussed previously, it is further submitted that after the emergence of the pandemic, it acted as a wake-up call to startle the responsible leaders willing to act in favour of climate action. In view of this, even before the emergence of the pandemic, the concern regarding climate action was being taken into consideration by many countries, however, in the present, the same has become necessary, whether favourable by the participants or not. It is submitted that the UK had already declared the health of climate as a national emergency in 2019,

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putting place its ambitious contributions in the carbon neutrality targets.

Moreover, even the European Union itself has now announced a target of a net zero carbon emissions in the mid-century, i.e., by 2050.

In context of the strong support placed by the Paris Agreement of Climate Change, along with net zero carbon emissions by mid-century, the slogan ‘1.5 to stay alive’ has also become famous in being able to defend climate action in favour of climate change, while a total of 180 countries signed up for the agreement and disclosed their respective Intended Nationally Defined Contributions (INDCs). Furthermore, it also proposes a carbon border tax for its international trade agreements in order to indirectly impact the larger goal of strengthening climate diplomacy. This tax will play a huge role in discouraging the usage of carbon while also accumulating fund to cater to the issue of climate change, by creating technologies which are environmentally sound.

In the context of India, spurring with the repercussions and the negative effects of climate change, the ultimate Governmental goal of India has been to establish a large demand for development and expansion, while ultimately benefiting the area of climate action as well. Moreover, in view of this, the country has also made a significantly high amount of progress in being able to alleviate poverty for millions of Indians, especially in the rural areas of the country, while promoting climate change and transitioning its economy into a one with a low-carbon future.

This is because investing in clean energy transitions would benefit the planet, but will also be economically beneficial and provide employment, while also helping to mitigate the repercussions caused by the climate change issue.

It is further submitted that India is one of the only few countries who are actually on track to meet their national commitments and contributions promised by them respectively in context of the Paris Agreement. Moreover, by forming the International Solar Alliance (ISA) in 2014 and the Disaster Resilient Infrastructure Coalition (DRIC) in 2019, India has not only boosted its international efforts for climate preservation, but has also promoted a mechanism of clean energy diplomacy. However, considering the drastic effects of the challenge of climate change, individual countries working towards achieving small goals may not prove to be efficient and sufficient overall, unless a big group of countries, specifically the Indo-Pacific as well as the several lots of alliances work together to achieve certain goals in favour of climate change. These activities are considered to be especially pertinent to emerging nations which already face a number of issues other than the challenge of climate change. In this context, however, India has

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managed to create a safe environment for itself, provided that it keeps working in the same manner to achieve ultimate climate diplomacy.

The Urgency of Appropriate Climate Action It is further submitted in light of the disastrous repercussions caused by climate change issues, the Indo- Pacific region is supposedly considered to be the most vulnerable to repercussions of climate change out of the rest of the world due to its geographical location as well as its proneness to disasters which also translates into issues in regards to food and water security (Alisjahbana, Zahedi, et al., 2019). In addition to this, the ones at utmost danger are considered to be the low-lying island nations situated in the Pacific and Indian Ocean, which have already started facing the threat of disappearing from the map due to the rising sea levels engulfing their territory into its mouth (Holland & Babson, 2019; Robinson, 2018).

Furthermore, in this context, it is also submitted that if such islands do end up engulfed by the rising sea levels, it may impact the national waters and the exclusive economic zones (EEZs) tremendously, since the loss of a sovereign territory has not only proven to be a challenge of climate repercussions, but also a challenge to the legal authorities of such land being engulfed by the rising sea levels, due to which the specific sovereign nations could have the possibility to acquire special rights over these areas, especially in relation to exploration and use of marine resources, including that of energy.

In order to work towards these issues, India had set up the National Action Plan for Climate Change as early as 2009 along with eight missions solely for promoting the concept of sustainable development and climate change and adaptation. These missions itself predicted the Nationally Determined Contributions (NDCs) which were further mentioned in front of the Paris Climate Agreement. Furthermore, in this context, it becomes extremely necessary to act in favour of climate change, taking the deadly examples of the triple disaster suffered by Japan in 2011, which consisted of a consecutive earthquake, tsunami, and the Fukushima Daiichi Nuclear Accident, all of which led to a scary fatality increase of more than 22,000 citizens of Japan. Moreover, biological hazards such as that of the instant pandemic of the COVID-19 which has had a hand in killing approximately 40 lakhs people across the globe, is also one of the repercussions of taking climate for granted. (WHO, 2021; Robert, Andrea, et. al., 2021)

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In addition to this, just as the Indo-Pacific region was to enter the predicted cyclones, droughts, heatwaves, and extreme monsoon seasons, it was hit by an unprecedented and unpredicted pandemic, which has caused the Indo-Pacific region to be more vulnerable to impacts. Thus is the reason why a strong capacity in relation to military planning in the context of Humanitarian Assistance and Disaster Relief (HADR) is also highly recommended in order to prevent such incidences of triple disasters as well as that of the unprecedented and unpredicted situation of the pandemic in interest of the COVID-19, in order to allow the vision of a future with a healthy climate and healthier people (Chen, Yen Ne, et. al., 2018).

Conclusion Keeping in mind the strategic interests of four democracies involved, i.e., India, US, Japan, and Australia, the QUAD is a group which has come together to protect the Indo-Pacific region which has two common interests, namely, being joined by the Indian Ocean, and protecting the area’s regional security from outside influences and any geopolitical concerns. After the QUAD failed to enact as a group and work towards discussing and solving concerns related to the IndoPacific region, as was first suggested by Japanese Prime Minister, Mr. Shinzo Abe, and chose not to come together in the interest of common strategic interests, it stretched on for a total of sixteen years, after which the world was struck by a global pandemic. This was a wake-up call for countries across the world for starting to treat the issue of climate change as one which has the ability to destroy the habitat of human beings, if not catered to. This is because the rising temperatures along with other unstable climate factors have led to a number of catastrophic events including triple disasters. Moreover, it cannot be a coincidence for predicted natural disasters to occur during the unprecedented pandemic.

Initially, Australia was unwilling to join the group of QUAD due to its existence of a strategic partnership alliance with China, and was being pressured into not joining the same in interest of its relationship with China. However, when the world was hit by an unprecedented global pandemic in the disastrous year of 2020, following which China made consequent efforts to take over essential intergovernmental organisations such as that of World Health Organisation (WHO), Australia decided to resign from its alliance strategic partnership with China and joined the group of QUAD by formally accepting India’s invitation to

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join the Malabar Exercise of 2020, coming under one of the operations of QUAD as a group aiming to make the region of Indo-Pacific free and open, in consonance to the Free and Open Indo Pacific (FOIP) Strategy proposed by the US and Japan.

Since then, the QUAD has had its first virtual summit where it joined the bench to discuss four major areas of concern. One of the concerns which has been discussed in detail is regarding the increasing need for climate action in order to prevent future biological hazards such as that of the instant pandemic, as well as to reduce climate disasters which has become quite prevalent now. This is because it is firmly believed by research scholars and scientists that if proper climate action is not taken, the physical and the strategic environment will be affected catastrophically, which will not be a good scenery to watch, especially at developing countries in the Indo-Pacific region. For this purpose, the Paris Climate Change Agreement has been proposed, of which, a total of 198 countries are a part of, all who are responsible for their respective Intended Nationally Defined Contributions (INDCs).

So far, a 20-20-20 target was supposed to be achieved by 2020 under the Paris Climate Agreement which had been proposed in COP 21 (21 Conference of Parties). These 20-20-20 targets have been achieved with flying colours as the result, i.e., the target of reducing greenhouse gas emissions by 20 percent was achieved well before 2020, precisely in 2015, which provides a good start to an already delayed action. An urgency in this matter is required in order to prevent further mishaps, such as the rising sea levels causing the small islands situated near the Indo-Pacific region as well as in the Indian Ocean to be engulfed by international waters, while also causing a huge crisis on the rights of such waters present in the exclusive economic zones (EEZs). Thus, this is also the reason why aside from the QUAD, concepts of QUAD Plus and other trilateral arrangements as well as other strategic alliances formed by different countries across the globe is also being supported, the formation of which will ultimately support the group of QUAD in achieving the primary goal of Climate Action. st

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Rory Medcalf & C. Raja Mohan, Responding to Indo–Pacific Rivalry: Australia, India, and Middle Power Coalitions, Lowy Institute Analysis. Australia: Lowy Institute, 2014.

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Approach of International Judicial Bodies Towards Cultural and Human Rights Sakshi Trivedi ICFAI Law School, Hyderabad, India sakshitrivedisa9@gmail.com

Abstract. International community has been constantly involved in application and recognition of Human Rights as well as Cultural Rights.

Various judicial bodies enjoying international jurisdictions have now and then adjudicated on human rights. The scope is limited to the approach undertaken by International Jurisdictional Courts on Cultural and Human Rights of people. Furthermore, this case study would be addressing the obiter dicta of judges, fallacies encountered by them, jurisdictional limitations on International judicial bodies and their holistic approach for upholding human rights. To provide a relevant and credible case study, empirical evidence as well as various reports and judgments have been studied and counted on. In the first section, the approach of the International Court of Justice to check human rights violations would be discussed by references to the Ahmadou Sadio Diallo case and the Kulbhushan Jadhav case. Subsequently, the outlook of the International Criminal Court would be discussed by references to the Germain Katanga case. Furthermore, the role of International Judicial bodies in relation to protection of cultural rights would be mentioned. An analysis has been done keeping in mind the role played by the international judicial bodies in the cases concerning human rights violations.

Keywords: International Judicial Bodies, Human Rights, Cultural Rights

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Introduction Recent times have witnessed the growth of international human rights law across the world. The countries have been more vigilant in administration of human rights as well as cultural rights which had an ever-growing impact on domestic and international legal systems, thereby also on work of international judicial forums and judges, prosecutors and lawyers.

The true dimensions of the developing legal justice system that could hardly be discerned a century ago, requires each nation and legal professionals to consider ways in which effective implementation of cultural and human rights could be secured. The outlook of international judicial bodies such as the International Court of Justice and International Criminal Court in addressing the issues related to human rights or cultural rights violation is crucial to understand.

The very specificity of the concept of “human rights” is that they belong to the individual in their quality as a human being, who cannot be deprived of their substance in any circumstances. These rights are thus intrinsic to the human condition. The Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, all give expression to this fundamental ethical basis in their first preambular paragraphs by recognizing “the inherent dignity and ... the equal and inalienable rights of all members of the human family”. Here is an expression of the principle of universality of rights, including the right to equal protection before the law which is a fundamental principle conditioning the entire field of international human rights law. The principle of universal and inalienable rights of all human beings is thus solidly anchored under international human rights law.

International Court of Justice and Human Rights The International Court of Justice (ICJ) has made a landmark contribution to the protection of minority rights and in development of the protection of international human rights. Even though the International Bill of Human Rights generally have their own dispute resolution mechanisms, the situations in which ICJ has dealt with human rights issues have arisen mainly in context of general international law and non-human rights specific treaties or conventions, which nevertheless have raised such situations. The International Convention on the Elimination of All Forms of Racial Discrimination 1965 and Convention on the

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Prevention and Punishment of the Crime of Genocide 1948 contains provisions particularly referring disputes to the International Court of Justice. This Court had abundant opportunities to play a significant role and contribute immensely to the international law of human rights in fields such as genocide, race discrimination, self-determination, consular access and diplomatic protection in the Ahmadou Sadio case. Even though the court had worked for securing individual human rights, still the arguments advanced in the Diallo Case as well as Kulbhushan Jadhav case made it clear that they centered on individual human rights and that the case became transformed in substance into a human rights protection case instead of one involving the diplomatic protection of a national under the law of State responsibility for the treatment of aliens.

Facts Ahmadou Sadio Diallo was a Guinean Citizen based in the Democratic Republic of Congo in 1964. In 1974, he founded an import-export company named Africom-Zaire which was incorporated under Zairean Law and registered in the Trade Register of the city of Kinshasa. Mr. Diallo participated as manager of Africom-Zaire and was involved as a founder in another Zairean based company Africontainers-Zaire, specializing in the containerized transportation of goods.

This company was also registered under the Trade Register of the city of Kinshasa. In the late 1980s Africom-Zaire and Africontainers-Zaire, which acted through Mr Diallo as their manager, took legal action against their business partners to collect various debts and for the most part they remained unsolved at the time of the judgment of the Tribunal. On January 25, 1988, Mr. Diallo was arrested and detained in connection with a criminal investigation into fraud. On January 01st, 1989, the Prosecutor of Kinshasa ordered the release of Mr. Diallo and later on October 31, 1995, the Prime Minister of Zaire issued an expulsion decree against Mr. Diallo. On November 5, 1995, Mr. Diallo was arrested and detained for deportation. After his release and re-imprisonment, he was finally expelled from the Democratic Republic of the Congo on January 31, 1996.

On December 28, 1998, the Government of the Republic of Guinea filed a complaint in the Registry of the Tribunal to initiate proceedings against the Democratic Republic of the Congo (called Zaire between 1971 and 1997) in relation to a lawsuit in relating to "serious violations of international law" allegedly committed against the person of a Guinean national. In its judgment of May 24, 2007 on Preliminary Statement of Objections, the Court declared Guinea's application admissible" insofar as it relates to the protection of Mr Diallo's rights

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as an individual and to the extent that it relates to the protection of direct rights as a partner in Africom-Zaire and Africontainers-Zaire. The legal contours of the relevant provisions under the International Covenant on Civil and Political Rights 1966 (ICCPR), the African Charter on Human and Peoples’ Rights 1981 (‘African Charter’) and the Vienna Convention on Consular Relations 1963 (VCCR) would be examined.

Contention In its final arguments, Guinea maintained that Mr Diallo was; (i) the victim of arrest and detention measures by the DRC authorities in 1988-89 in violation of international law; and (ii) the victim of arrest, detention and expulsion measures in 1995-96 also in violation of international law. Accordingly, Guinea asserted that it was entitled to exercise diplomatic protection of its national Mr Diallo in this regard. In reply, the DRC asserted that the claim relating to events in 198889 was presented belatedly and therefore must be rejected as inadmissible.

Alternatively, the DRC asserted that; (i) the claim must be rejected because of the failure to exhaust domestic remedies; and (ii) otherwise be rejected on the merits.

Furthermore, the DRC denied that its treatment of Mr Diallo in 1995-96 breached its obligations under international law. The Court found that the claim concerning the arrest and detention of Mr Diallo in 1988-89 was inadmissible as being too late. There was thus no need for the Court to consider whether the DRC could at this stage raise the objection of failure to exhaust local remedies, and if so, if that objection could be maintained.

Some of the facts relating to the arrest, detention and expulsion measures taken against Mr. Diallo between October 1995 and January 1996 were agreed between the Parties. Others were in dispute. After a detailed examination of the facts, the evidence before it and the application of its jurisprudence on burden of proof, the Court found that Mr Diallo remained in continuous detention from 5 November 1995 to 10 January 1996, a period of 66 days. The Court concluded also that Mr. Diallo was in detention between 25 January and 31 January (the date of his expulsion from the DRC), a further period of 6 days (making a total of 72 days).

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Judgment The Court’s analysis of the legal position proceeded on this footing. Its analysis focused upon the question whether the treatment of Mr Diallo was consistent with the DRC’s relevant treaty obligations.

The Alleged Violation of Article 13 of the International Covenant on Civil and Political Rights and Article 12, Paragraph 4 of the African Charter on Human and Peoples’ Rights Before considering whether the Court found that the ICCPR had been infringed, it may be noted that Guinea initiated inter- State proceedings before the Court and not the Human Rights Committee (which is responsible for applying the ICCPR). Neither State Party had accepted the inter-State procedure detailed in Articles 41 to 42 of the ICCPR. The supervisory role of the Human Rights Committee under this procedure can only be activated if both States Parties concerned have declared that they recognise its competence to receive and consider such communications from States Parties. The operative principle is one of reciprocity. The procedure is complex, cumbersome and extended. It is based entirely on the goodwill of States and may be terminated by either party to the dispute before an ad hoc Conciliation Commission has been appointed. Even if both States Parties agree to accept the competence of such a Commission, the State alleged to be in breach of its ICCPR obligations is entirely free to accept or reject the contents of the report delivered by the Commission.

The Human Rights Committee has appealed repeatedly to States in recent years to make the declaration under Article 41(1) of the ICCPR and to use the mechanism in order to make implementation of the ICCPR more effective. Indeed, in General Comment No 31 on ‘The Nature of the General Legal Obligation Imposed on States Parties to the Covenant’, the Human Rights Committee states expressly that ‘[it] reminds States Parties of the desirability of making the declaration contemplated in Article 41. It further reminds those States Parties already having made the declaration of the potential value of availing themselves of the formal procedure under that article’. Despite the fact that it is a substantial step forward to give one State locus standi to complain about the treatment by another State of its own

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nationals, the inter-State procedure has never yet been invoked. This is hardly surprising given the lack of any meaningful determination of the issue under this procedure, rendering it impotent and toothless in the absence of some fundamental amendments. Accordingly, it is entirely understandable that neither party to this dispute would have wished to refer it to the Human Rights Committee, even if they had accepted the inter-State dispute procedure. It is very doubtful if the Human Rights Committee’s remarkable enthusiasm for highlighting this arcane procedure is likely to bear any fruit in the foreseeable future. As to whether Mr Diallo’s expulsion infringed the DRC’s human rights treaty obligations, Article 13 of the ICCPR reads as follows: “An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.”

Similarly, Article 12(4) of the African Charter provides: “A non-national legally admitted in a territory of a State party to the present Charter, may only be expelled from it by virtue of a decision taken in accordance with the law.”

The Court declared that these provisions ensured that the expulsion of an alien lawfully in the territory of a State which was a party to both instruments could only be compatible with the international obligations of that State if it was decided in accordance with ‘the law’ (that is the relevant domestic law), so that compliance with international obligations is to some extent dependent on domestic law. However, there were two additional requirements; firstly, the applicable domestic law must in itself be compatible with the requirements of both the ICCPR and the African Charter; secondly, ‘an expulsion must not be arbitrary in nature, since protection against arbitrary treatment lies at the heart of the rights guaranteed by the international norms protecting human rights, in particular those set out in the two treaties applicable in this case’. This second proposition is rather controversial and will be discussed fully when considering the Joint Declaration of Judges Keith and Greenwood. However, the Court considered that this interpretation was fully corroborated by the jurisprudence of the Human Rights Committee, and in particular its ‘views’

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in Maroufidou v. Sweden and General Comment No 15 on ‘the position of aliens under the Covenant’. Having established the law, the Court proceeded to apply it to the facts. Guinea alleged that the decision to expel Mr Diallo breached Article 13 of the ICCPR and Article 12(4) of the African Charter because the decision was not taken in accordance with Congolese domestic law for three reasons; (i) it should have been signed by the President of the Republic and not by the Prime Minister; (ii) it should have been preceded by consultation of the National Immigration Board; and (iii) it should have indicated the grounds for the expulsion, which it failed to do.

The Court rejected the first of these arguments after an exhaustive examination of the relevant domestic legislation (Zairean Legislative Order of 12 September 1983 and the Constitutional Act of 9 April 1994) and an application of the principle that it is in the first instance for the State to interpret its own domestic law. The Court will not interfere by substituting its own interpretation unless the interpretation advanced by the State is manifestly incorrect, particularly if its purpose is to gain an advantage in the litigation. Thus, the Court was able to find that just because the expulsion decree was signed by the Prime Minister (and not the President) did not mean that it was not issued ‘in accordance with law’. The second argument was accepted quickly by the Court. The National Immigration Board, whose opinion is required by Article 16 of the Legislative Order before any expulsion measure is taken against an alien holding a residence permit, was not consulted. The DRC did not contest that consultation was necessary in this case and did not take place. The final argument was also accepted by the Court. The expulsion decree should have been ‘reasoned’ in accordance with Article 15 of the Legislative Order, in the sense that it should have indicated the grounds of the decision, and it was not. The general, stereotyped reasoning included in the expulsion decree, which simply repeated the text of Article 15 and added a clause so vague that it was impossible to comprehend on the basis of which activities the presence of Mr Diallo was deemed to be a threat to public order, could not be regarded as meeting the requirements of the legislation (the clause that the ‘presence and conduct [of Mr Diallo] have breached Zairean public order, especially in the economic, financial and monetary areas, and continue to do so’).

The Alleged Violation of Article 9, Paragraphs 1 and 2, of the International Covenant on Civil and Political Rights

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and Article 6 of the African Charter of Human and Peoples’ Rights Article 9(1) and (2) of the ICCPR reads as follows: (1) Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law. (2) Anyone who is arrested shall be informed, at the time of his arrest, of the reasons for his arrest and shall be promptly informed of the charges against him. Article 6 of the African Charter provides: Every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained.

The above mentioned provisions were violated in three ways when Diallo was arrested and detained for implementation of the expulsion decree.

Firstly, the deprivations of liberty suffered by Diallo were incongruous with the Article 9 (1) of the ICCPR or on the basis of the conditions mentioned in Article 6 of African Charter. Secondly, the deprivations of liberty were arbitrary within the meaning of both the provisions and lastly there was no information provided to Mr. Diallo for his arrest and charges levelled against him thereby violating Article 9 (2) of the ICCPR. The Court’s analysis began with a general remark. The Court pointed out that in principle the provisions of Article 9(1) and (2) of the ICCPR and those of Article 6 of the African Charter apply to any form of arrest or detention effected by a public authority, whatever its legal basis or the objective being pursued. The Court cited in support the Human Rights Committee’s General Comment No 8: ‘The Right to Liberty and Security of Persons’. The Court observed that the scope of these provisions is not confined to criminal proceedings, but apply also to any measures that deprive individuals of their liberty that are taken in the context of any administrative procedure, such as those undertaken necessarily to remove an alien from the national territory.

The Court then determined whether Mr Diallo’s arrest and detention were ‘arbitrary’ within the meaning of Article 9(1) of the ICCPR and Article 6 of the African Charter. The Court conceded that, in principle, an arrest or detention aimed at implementing an expulsion order taken by the competent authority could not be characterised as being ‘arbitrary’, within the meaning of the relevant provisions, simply because the lawfulness of the expulsion

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order might be questionable. Accordingly, the mere fact that the expulsion decree of 31 October 1995 in some respects did not meet the requirements of Article 13 of the ICCPR and Article 12(4) of the African Charter was not definitive in attributing to it an ‘arbitrary’ character within the meaning of Article 9(1) of the ICCPR and Article 6 of the African Charter. Accordingly, ‘under these circumstances, the arrest and detention aimed at allowing such an expulsion measure, one without any defensible basis, to be effected can only be characterised as arbitrary within the meaning of Article 9(1) of the ICCPR and Article 6 of the African Charter’

The Alleged Violation of the Prohibition on Subjecting a Detainee to Mistreatment It was argued by Guinea that Mr Diallo was subjected to mistreatment during his detention; (i) because of the particularly harsh conditions thereof; (ii) because he was deprived of his right to communicate with his lawyers and with the Guinean Embassy; and (iii) because he received death threats from the guards. Guinea invoked in support Article 10(1) of the ICCPR, which reads as follows: All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

The Court referred also to Article 7 of the ICCPR, which reads as follows (in part): No one shall be subjected to torture, or to cruel, inhuman or degrading treatment or punishment. In addition, the Court adverted to Article 5 of the African Charter, which states (in part): Every individual shall have the right to the respect of the dignity inherent in a human being. Before assessing the claim, the Court confirmed that there is no doubt, moreover, that the prohibition of inhuman or degrading treatment is among the rules of general international law which are binding on States under all circumstances, even apart from any treaty commitments.

The Alleged Violation of the Provisions of Article 36, Paragraph (1)(b) of the Vienna Convention on Consular Relations Guinea alleged that these provisions were violated when Mr Diallo was arrested on both occasions (November 1995 and January 1996) because he was not informed, ‘without delay’ on those occasions of his right to seek

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consular assistance. The Court observed that the DRC had not challenged the accuracy of Guinean allegations either in the written proceedings or in the first round of oral argument. The DRC had replied to the Guinean allegations by claiming that; (i) Guinea had failed to prove that Mr Diallo had requested the Congolese authorities to notify the Guinean consular post without delay of his arrest and detention; and (ii) that the Guinean Ambassador at Kinshasa was aware of Mr Diallo’s arrest and detention, as evidenced by the action he took on behalf of Mr Diallo. However, in reply to a question posed by one of the Court’s judges during the hearing on 26 April 2010, the DRC asserted for the first time that it had ‘orally informed Mr Diallo immediately after his detention of the possibility of seeking consular assistance from his State’. This was re- affirmed in the Written Reply delivered to the Registry on 27 April 2010 and confirmed orally at the hearing on 29 April 2010 during the second round of oral argument. The Court dismissed the two arguments advanced by the DRC as lacking any credence.

The Court made three points; (i) it was for the authorities of the State which initiated the arrest to inform, on their own initiative, the arrested person of his right to consular access; (ii) the fact that a detainee in some cases does not make a request for consular access can be explained precisely by the fact that he had not been informed of that right; and (iii) the fact that the consular authorities of the national State of the arrested person had heard somehow of his arrest did not excuse the violation which had occurred already by failure to inform the detainee of his rights without delay.

Judge Cancado Trindade concluded: “It is not for this Court to keep on cultivating, in obiter dicta, hesitations or ambiguities, such as those of paragraph 124 of its Avena Judgment of 2004. Furthermore, in this transparent age of internet, to attempt capriciously to overlook or ignore the contribution of other contemporary international tribunals to the progressive development of international law, - in the sense of its irreversible advance of its humanization, - seems to attempt to avoid the penetrating sunlight with a fragile blindfold.”

Of course, here the Judge was referring most particularly to the landmark Advisory Opinion No 16 of the Inter-American Court of Human Rights.

Indeed, in general, Judge Cancado Trindade is critical of what he calls a ‘partial or atomized outlook’, whereby the contribution of the jurisprudence under other regional human rights treaties such as the American Convention on Human Rights and the African Charter on Human and Peoples’ Rights is almost ignored when contrasted with the jurisprudence under the European Court of Human Rights. Judge Cancado Trindade warns against adopting a singularly ‘Euro-centric outlook.

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Kulbhushan Jadhav Case The basic human rights are available for prisoners too and in the following case refusal to grant consular access stands against the fundamental human rights. The International Court of Justice stepped up to provide justice by staying the execution sentence of the accused, and rooting for application of human rights in the case.

Facts The present case is between India and Pakistan in the International Court of Justice where Kulbhushan Sudhir Jadhav, a 50-year-old retired Indian Navy Officer, was sentenced capital punishment via the Military Court of Pakistan. The charges against Jadhav were of espionage and terrorism for which he was sentenced to death. On March 3rd, 2016, Kulbhushan Jadhav was arrested by Pakistan. Subsequently, the Pakistan Security forces declared Jadhav was an Indian undercover agent, arrested from the southern Balochistan, who came after crossing over from Iran. After 22 days of the arrest, Pakistan reported about the arrest and accused him for being a spy to which India denied. Pakistan had even shared the confession video of Jadhav. On March 29th, 2016, New Delhi requested from Islamabad consular access to Jadhav. Over the next year, India made sixteen such requests which were denied by Pakistan. Following the nonstop denial of consular access, Pakistan Army Court on April 10th, 2017, sentenced Jadhav to death for “his involvement in espionage and sabotage activities against Pakistan”. On April 14th, 2017, India demanded from Pakistan a certified copy of the charge sheet in addition to the judgement in the death sentence of Jadhav and claimed consular access to him. Seeing no signal of cooperation from Pakistan’s side India decided to take an efficient step to save its innocent kidnapped citizen.

On May 8th, 2017, India approached the International Court of Justice at The Hague against Pakistan military court's decision. The very next day ICJ stayed Jadhav’s execution. After ICJ’s live order to Pakistan concerning Jadhav’s execution, on May 15th, 2017, India and Pakistan crossed swords on the ICJ over Jadhav’s case.

India had requested for restitution from Pakistan’s moves primarily based totally on these issues; immediate suspension of the loss of life sentence, declaration that

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the sentence passed by the Pakistani Military Court violated Vienna Convention on Consular Relations (VCCR) and the International Covenant on Civil and Political Rights (ICCPR) taking in consideration that Pakistan had not given India consular access to Jadhav and declaration of the sentence as illegal and the discharge of Jadhav if Pakistan is not able to annul the decision. Objection raised

by Pakistan had been India’s abuse of process, abuse of rights and illegal conduct.

Pakistan additionally accused India of the usage of language to insinuate that army courts have been similar to kangaroo court. Furthermore, they raised suspicion about the nationality of Kulbhushan Jadhav primarily based on his passport.

Contention The violation of Article 36 of the VCCR was the principal issue on which India took Pakistan to the International Court of Justice. The main ground on which India dragged Pakistan to the ICJ was the breach of Article 36 of VCCR. Article 36 of Vienna Convention on Consular Relations states that – “(1) With a view to facilitating the exercise of consular functions relating to nationals of the sending State: a. consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State; b. if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph; c. consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment.

Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.

(2) The rights referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended.”

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The above reading makes it clear that the provision governs consular personnel’s right to visit and access their citizens in a foreign country. Despite several attempts of Indian government, Pakistan never responded back to India.

Pakistan’s action demonstrates a clear violation of Article 36 of the said treaty.

To rebut India’s position, Pakistan cited a 2008 bilateral agreement on consular access between two nations, claiming that the arrangement, rather than VCCR, was the prominent factor in the situation while India contended that the 2008 agreement could not override the 1963 VCCR accord. Instead, it emphasized the link between bilateral treaties and the VCCR. It further contended that domestic law could not justify the breaches of international duties.

VCCR's Article 36, according to Pakistan, is "not engaged until and unless the ‘sending State' presents evidence of the individual's nationality." India replied by claiming that Jadhav was described as an Indian national in all of Pakistan's conversations. India also took issue with Jadhav's confession video, which Pakistan had provided. It was claimed by India that the video was fake and mentioned that they had conducted an independent forensic study which showed that the video was “anything but voluntary and a heavily edited version”. Pakistan has also accused India of using language that implied military tribunals were "similar to kangaroo courts," claiming that this was an unpleasant thing to say because both countries' military courts originated in the same place. India, on the other hand, claimed that it had not used such terminology or expressions toward them because it would not help them in the current case. Furthermore, India retaliated, claiming that the allegation that both countries have the same origin for the military court is false. The Indian military court has no jurisdiction over civilians since it can only hear issues involving military personnel. Pakistan's military court, on the other hand, claimed that it has exclusive jurisdiction over civilians, bypassing ordinary criminal tribunals.

Judgment The ICJ delivered the judgment with an amazing majority of 15:1 ratio. The judgement delivered by the bulk identified mainly with the question of violation of Article 36 of VCCR. As per the court’s observation the most dispute between both the countries is about ‘consular assistance’ of arrest, detention, trial and sentencing of Kulbhushan Jadhav.

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Both the countries besides being the members of VCCR are members of “Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes” with none reservations or declarations.

The court had observed that the jurisdiction of the case comes about from Article 1 of the “Optional Protocol” and doesn't breach any of the international treaties’ asides from VCCR. Therefore, it's legitimate jurisdiction under Article 1 of the Optional Protocol as alleged by the State of India regarding the violation of VCCR. The three objections raised by the State of Pakistan regarding the abuse of power, abuse of rights and unlawful conduct by the State of India were dismissed and India’s application was admissible. Further the court also held that Pakistan has acted in breach of the agreement and did not fulfil its obligations as per Article 36 of VCCR. The State of Pakistan had didn't inform Kulbhushan Jadhav about his rights which he had under Article 36(1)(b), by not informing India about the arrest and detention of Jadhav and lastly by denying the access of Jadhav by the Consular Officers of India. These were all a part of the VCCR agreement which Pakistan had agreed with none reservations or declarations. Hence, the court has found Pakistan to be in violation of international laws.

Status Quo While the hearing of the case was under process, Pakistan had allowed the mother and wife of Jadhav to meet him on December 25th, 2017. Pakistan also allowed to the present meeting on humanitarian grounds. This certainly was done by Pakistan to urge a position from ICJ side as showing itself as ‘humanitarian nation’. After the judgment in July 2019, the Pakistan Government agreed to grant consular access to Jadhav. After the meeting with Jadhav, India alleged that Jadhav was under extreme pressure and was also forced to present a fake version of accounts which might have helped Pakistan to win the case. The ICJ declared in its 2019 verdict that Pakistan had to provide a proper forum for appeal against the sentence given to Jadhav by the military Court. The bench of Islamabad High Court (IHC) in April 2021 was hearing the case and asked India to appoint a lawyer to represent Jadhav. While the Indian Government asserts that Islamabad High Court has no jurisdiction to try the case, the IHC chief dismissed the Indian government’s observation as a misunderstanding.

Human Rights and International Criminal Court

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The Universal Declaration of Human Rights was a stepping stone firstly for the International Covenant on Civil and Political Rights (ICCPR) and secondly for the International Covenant on Economic, Social and Cultural Rights. These three documents together form the International Bill of Rights. The two Covenants placed the universal norms of basic human rights in the framework of multilateral legal instruments, which have, up to date, been joined by the overwhelming majority of the United Nations member States. The global promotion of human rights, however, continues to be a momentous challenge. Countless people in various regions still do not enjoy many of the most basic rights and freedoms enumerated in the Universal Declaration. That is particularly alarming is that fundamental human rights, including the right to life and liberty, and freedom from torture and inhumane treatment, continue to be frequently and flagrantly violated in many quarters of the world. All too often such violations take place in the context of war and armed conflicts, which in themselves represent the ultimate threat to all human values. The ICC is a permanent international Court that was set up to end impunity for the most serious crimes of international concern, namely, genocide, crimes against humanity, war crimes and the crime of aggression. The ICC is the direct heir of the International Military Tribunal established in Nuremberg in 1945 to try the Nazi leaders after Germany’s defeat.

The trials in Nuremberg, as well as those in Tokyo, established the principle of every individual’s responsibility under criminal law for mass atrocities, even if they are high-ranking representatives of the state or its military apparatus.

Article 21 of Rome statute of ICC states: “1. The Court shall apply: (a) In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence; (b) In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict; (c) Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards.

2. The Court may apply principles and rules of law as interpreted in its previous decisions.

3. The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender as defined in article 7, paragraph 3, age, race, colour,

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language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.”

The jurisprudence concerning interpretation of Article 21(3) of the Rome Statute of the ICC is the primary interpretative guidance embracing the Statute and other sources applicable before the ICC. Non-refoulement principle is used as an example that not every human right is transferable to the ICC, which is an international organization. The core mandate of the International Criminal Court is to act as a court of last resort with the capacity to prosecute individuals for genocide, crimes against humanity and war crimes when national jurisdictions for any reason are unable or unwilling to do so.

Germain Katanga Case Facts A violent armed conflict between Lendu, Ngiti and Hema ethnic groups consumed Eastern DRC's Ituri province from 1999-2003. On 24 February 2003, the Force de résistance patriotique d'Ituri (FRPI) and the Front des Nationalistes et Intégrationnistes (FNI) militias, consisting of Ngiti and Lendu rebels respectively, launched a reprisal operation against Hema civilians in Bogoro, a strategic point on the road between district capital Bunia and the Ugandan border.

The Hema-dominated Union des Patriotes Congolais (UPC) had seized control of Bunia with Uganda's assistance in 2002. Evidence from the attack shows murder, pillaging, destruction of property, sexual crimes, and the use of FRPI child soldiers. 200 civilians were killed, and following the attack, Hema civilians' property was pillaged and women and girls from Bogoro abducted to serve as "wives" for combatants. The ICC prosecutor suspected FPRI commander Germain Katanga was pivotal in planning and executing the attack against Bogoro village, a joint effort with the Front des Nationalistes et Intégrationnistes (Allied Forces of the Nationalist and Integrationist Front, FNI), led by Mathieu Ngudjolo Chui. ICC warrants were issued for the arrest of Katanga (2007) and Ngudjolo (2008).

Katanga was charged with murder, rape, and sexual slavery as crimes against humanity and attacks against a civilian population, murder, destruction of enemy property, pillaging and using child soldiers as war crimes. The case marked the first-time crimes against humanity and sexual- and gender-based crimes charges were brought by the ICC Prosecutor. Pre-Trial Chamber I decided on 10 March

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2008 to try Katanga jointly with Mathieu Ngudjolo Chui, former commander of FNI, as a co-perpetrator of a common plan to execute the attack on Bogoro. The cases were later separated however, due to the possibility of Katanga's mode of criminal liability charges being amended to 'accessory' based on the role played by FPRI combatants in the Bogoro attack. ICC judges noted this change could prejudice Ngudjolo's right to a fair and expeditious trial.

Judgment On 7 March 2014, a majority of Trial Chamber II found Katanga guilty as an accessory to one count of crimes against humanity (murder) and four counts of war crimes (attacks against a civilian population, murder, destruction of enemy property, and pillaging). The verdict followed Mathieu Ngudjolo Chui's acquittal for his alleged involvement as FNI commander during the Bogoro attack. In the final trial judgment, Katanga was acquitted on charges of rape and sexual slavery as crimes against humanity and using children under 15 to actively participate in hostilities as a war crime. Katanga dropped his appeal of the judgment and issued a declaration accepting responsibility and expressing his “sincere regret” to all those who suffered as a result of his conduct. The ICC prosecutor as a result dropped appeals relating to the sentence and to the judgment on rape and sexual slavery charges. The legal representatives for both victim groups in the case denied involvement in or satisfaction with the deal made between the prosecution and defense.

On 24 March 2017, Trial Chamber II issued an Order for Reparations for an amount of USD 1,000,000 against Mr. Katanga pursuant to Article 75 of RS. The Trial Chamber ordered awards for reparations to 297 identified victims, consisting of an individual symbolic compensation award of USD 250 to each victim and of four collective awards to all victims in the form of housing assistance, education assistance, income generating activities and psychological rehabilitation. The Trial Chamber instructed the TFV to submit a draft implementation plan tasking the TFV with implementing the individual and collective awards contained in the Order for Reparations.

In light of Mr. Katanga's indigence, the Trial Chamber had requested that the TFV's Board of Directors consider complementing the payment of both the individual and collective awards ordered against Mr. Katanga. In May 2017, the TFV's Board decided to provide USD 1 Million for the reparations awarded to victims in the Katanga case covering the full amount of the costs of the

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reparations awards ordered by the Trial Chamber. The Board also welcomed a voluntary contribution of EUR 200,000 by the Government of the Netherlands, which included earmarked funding to cover the cost of individual awards. On 25 July 2017, the TFV presented its draft implementation plan to the Chamber. On 08 March 2018, the Appeals Chamber of the ICC confirmed, for the most part, the Order for Reparation.

International Covenant on Civil and Political Rights and International Courts Codified under Articles 27 and 15(1)(a) of the International Covenant on Civil and Political Rights [ICCPR] and International Covenant on Economic, Social, and Cultural Rights [ICESCR] respectively, cultural rights are still read as distinct from linguistic and religious freedoms. The ICCPR vests cultural rights only in “persons belonging to minorities”, instead of groups. A nation that wilfully destroys another country’s heritage would be no better than the criminals who have destroyed irreplaceable sites in Syria, Afghanistan, Iraq and elsewhere in recent years. Protecting civilian lives is paramount, but saving cultural sites is consistent with that mission too. Destroying mosques, museums and libraries will certainly result in civilian casualties. A part of the Hague Convention of 1907, signed over a century ago, stipulates that, “all necessary steps must be taken” to spare “buildings dedicated to religion, art, science, or charitable purposes, historic monuments, hospitals, and places where the sick and wounded are collected.” Similarly, the Geneva Convention Protocol I, signed in 1949 and amended in 1977, renders unlawful “any acts of hostility directed against the historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples” (Sara, 2020).

In August 2016, Ahmad al-Faqi al-Mahdi pled guilty before the International Criminal Court (ICC) to the intentional damage of nine mausoleums and a mosque in Timbuktu, Mali. The Rome Statute of 1998 establishing the ICC classifies the international destruction of cultural heritage as a war crime in Article 8(2), and Prosecutor v. Al-Mahdi is the first time the court has taken action stemming from this provision. While the case may not immediately deter future terrorists from targeting cultural sites, it establishes precedent against the practice and helps raise awareness about the necessity of protecting a population’s identity and history. The Government of Mali brought the case to the ICC on July 13, 2012, a few days after the crimes occurred. Al-Mahdi admitted guilt at the opening proceedings of his August 2016 trial and he was sentenced to nine years in prison.

As a member of Ansar Dine, an al-Qaida-linked paramilitary group seeking to

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impose sharia law in Mali, he organized, supervised, and actively participated in the destruction of Malian heritage. Sidi Yahia is one of Timbuktu’s main mosques and reflects the city’s place as an Islamic centre during the fifteenth and sixteenth centuries. The mosque and eight of the nine mausoleums destroyed are designated UNESCO world heritage sites. Similarly, the ICC deemed the structures pieces of significant cultural heritage and not military objects. The ICC’s chief prosecutor described the damaged objects as the “embodiment of Malian history captured in tangible form from an era long gone.” With very limited resources and a focus on crimes against persons, the ICC accepting this case demonstrates its conviction that international law and international bodies need to address the deliberate destruction of cultural heritage as acts of war. The court’s decision could have a number of implications, including advancing the codification of the norm against cultural destruction, helping with the Malian reconciliation process, and supporting further efforts to protect cultural sites before they can be targeted.

The ICC, a court of last resort, is unlikely to hear another similar case in the foreseeable future. Thus, al-Mahdi’s case is essential in defining the international precedent of contextualizing cultural heritage destruction as a war crime. This is particularly true given that countries like Iraq, Afghanistan, and Syria cannot be tried because they are not party to the Rome Statute. It seems highly unlikely that this trial will showcase the seriousness of law enforcement without a credible threat of punishment. Nevertheless, the ICC has staked its claim on this case.

Mali’s Government described the outcome of the case as a source of “hope for all the victims of the barbaric ideology . . . in northern Mali,” adding that it “should serve as a . . . warning to criminals who attack cultural property.” In the opening address to the court, al-Mahdi stated, “I regret what I have caused to my family, my community in Timbuktu, what I have caused to my home nation Mali.”

The case could also indicate an important shift in the international consciousness surrounding the importance of cultural heritage and the imperative to protect it.

The 2016 People on War report from the International Committee of the Red Cross polled over 17,000 people in 16 countries and found that 72 percent of the sample said it was wrong to attack religious and historical monuments, and not just an inherent part of war. In countries currently engaged in an armed conflict, 84 percent of individuals deemed it wrong. This stands in contrast to a similar question that found only 59 percent of respondents found it wrong to harm humanitarian workers.

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The increase in reporting on cultural heritage issues is echoed by increased scholarship and action. For example, the UN’s Unite for Heritage campaign works to engage the global public in celebrating and safeguarding diverse cultural heritage. Elsewhere, technological innovation is changing the field. Groups have begun to utilize sandbagging to protect heritage, satellite imagery to track looting and 3D printing to recreate objects. The push is largely a product of significant events, including the al-Mahdi case, that have helped create renewed interest.

These events include the destruction of archaeological structures in Palmyra, Syria, the towering Buddhas of Bamiyan Valley in Afghanistan, and artifacts of the Mosul Museum in Iraq. In this case, the ICC functions as an assertive voice at a time when the safety of global cultural heritage is particularly endangered.

Increasing the awareness of states, organizations and individuals of the severity of the issue can improve the likelihood that there will be domestic and global organizing efforts to more effectively protect heritage. Although some may argue this case is merely symbolic, it is a needed affirmative decision in a complicated field to guide progress forward.

Conclusion ICJ had granted analogous relief of “review and consideration” to the country in violation of human rights. The approach of ICJ as well as ICC has been liberal, empirical and formulative in order to undermine the principles of international humanitarian law along with stressing the need for rejuvenation of International Criminal Court or International Court of Justice perspective in dealing with human rights and cultural rights. However, these cases do not establish a clear trend. The Court has not always received human rights claims so supportively. In the 1996 advisory proceeding on the threat or use of nuclear weapons, it was vigorously argued that the use of nuclear weapons would unlawfully violate the right not to be arbitrarily deprived of life under Article 6 of the International Covenant on Civil and Political Rights. ICJ straightaway rejected such contention.

It agreed that Article 6 of the Covenant applied in wartime, but found that what is arbitrary must be determined through the applicable lex specialis— the law of armed conflict.

In recent years, there have been a few more such cases, helping to stimulate this symposium. The Court’s responses have varied. When faced with competing legal values, today’s Court does not necessarily give human rights claims special weight or authority. It takes such claims quite seriously, but one could not observe it as

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taking a uniformly “pro-human rights” approach. Yet the commendable work done by these international Courts could not be ignored. In cases involving seriously contending legal values from different strands of international law, the Court will make a conscientious effort to rank the claims and if need be to find a balance. However, it will not necessarily give primacy to human rights considerations.

The ICC conviction and UNSC resolution relating to Cultural rights have put States on notice that the intentional destruction of cultural property is a very real trend in conflict, and that international efforts will need State will and cooperation to protect cultural heritage and the identity attached to it.

In accordance with the above-mentioned facts analysis, wishful thinking and sloppy legal interpretation tend to be too common in international human rights law. At the end of the day, the process of testing and refining of claims through litigation before the only true World Court should help to produce a body of human rights law that is more broadly accepted and effective. The international Courts have a general mandate where human rights claims and claims derived from other areas of the law may well compete and have to be reconciled.

References Anjali, Krishnan. June 23, 2020. [viewed 28 June 2021], Available from <https://lawlex.org/lex-pedia/icj-judgement-analysisthe-kulbhushan-jadhavcase/23548>.

Ella Weiner. Can the International Criminal Court Help Protect Cultural Heritage. [viewed date 26 June 2021]. Available from: <https://www.csis.org/npfp/caninternational-criminal-court-help-protect-cultural-heritage>.

ICC. Coalition for the International Criminal Court [online], May 2014 © ICC-CPI [viewed date: 17 June 2021].

Available from: <https://www.coalitionfortheicc.org/cases/germain-katanga>.

ICC. International Criminal Court, “The State Parties to the Rome Statute” [online]: ICC. [viewed date: 15 June 2021].

Available from: <https://asp.icccpi.int/en_menus/asp/states%20parties/Pages/the%20states %20parties%20to%20the%20rome%20statute.aspx>.

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Ondřej, Svaček. The International Criminal Court and Human Rights: Achievements and Challenges. April 2016 [viewed date: 22 June 2021]. Available from: <https://www.researchgate.net/publication/305253292_The_International_Cri minal_Court_and_Human_Rights_Achievements_and_Challenges>.

Sandy Ghandhi. Human Rights and the International Court of Justice The Ahmadou Sadio Diallo Case. Human Rights Law Review 11:3 © The Author [2011], Available from: <ngr023 527..555 (corteidh.or.cr)>.

Sara c. Bronin. Los Angeles Times, Opinion: Destroying cultural heritage sites is a war crime, JAN. 5, 2020 4:39 PM PT, Available from: <https://www.latimes.com/opinion/story/2020-01-05/iran-donald-trumpcultural-sites-war-crime>.

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Self- Regulation of Multi-National Companies Aakriti Jaipuriar Amity University, Noida, India aakritijaipuriar@gmail.com

Abstract. With the emergence of powerful ‘cosmocorps’, the social order has shifted in subtle ways but has made significant waves. People are constantly surrounded by products of MNCs and in this period of globalisation, this trend is here to stay. Today, MNCs have developed to such a stage that it influences politics, economies, development of regions, lifestyles and other trends. Needless to say, there are no walks of life that are untouched by these gigantic corporations.

Also, the power they gain is only increasing day-by-day. As such, scholars from both international and domestic fields accept that they need to be regulated at least to some extent. International institutions have recognised the ability of powerful MNC to influence national policies in their favour. Besides, with nations competing for foreign investments, Governments are more likely to be lenient towards these companies. Therefore, international organisations encourage selfregulation. This paper discusses this method of regulation in an attempt to evaluate efficiency and efficacy of self- regulation.

Keywords: Multinational Companies, Self- regulation, International Law

Introduction Multinational Companies (MNCs) are such companies which, while operating in their home country, sell their products in other nations as well. Transnational Companies (TNC), on the other hand, operate in more than one country individually and do not depend on the home country for coordination of management globally (Njogu, T. 2019). An example of an MNC can be Microsoft; whereas an example of a TNC can be McDonalds. However, both terms have

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been used interchangeably. The boundaries present amongst countries have blurred significantly and the world has become more globalised. This means that today what is available in other parts of the world may very well be available here.

Globalisation, as a process that is more or less blurring the lines and boundaries between the countries, can be seen as the starting point of MNCs. With development there has been an increase in demand for better life standards which promoted globalisation and globalisation promoted MNCs. Today, MNCs have integrated themselves within economies of multiple nations and have generated enough to compete with the GDP of nations where some of them operate or sell their products (Insider, 2018). Around 64% of non-governmental jobs are provided by MNCs in host nations (Tirimba and Macharia, 2014), and one of their other significant benefits is technology transfer. MNCs and TNCs are responsible for a sizable part of technology transfer from their home nation to their host nation. With these companies bringing so many benefits, it is not surprising that many work hard to make themselves attractive to these companies.

For example, countries competed fiercely when Amazon offered 50,000 new jobs and an increase in wages of the region where its second headquarters would be situated (Alexandra V., 2018). Competing nations offered many incentives such as multiple states in the United States (U.S.) were offering tax breaks of over USD 3 Billion. Moreover, another State offered Amazon to not pay tax for a few years, while others offered tax cuts with subsidies for the future employees of the company (Isaac, K. S., Ibidunni, A., Kehinde, O. J., Ufua, D., Elizabeth, K. B., Oyo-Ita, D., & Mathias, C M. 2020). Much of the foreign investments come from MNCs which is a strong point of attraction for developing countries. Another example of a country making itself attractive is India. The Trade Ministry has put forth a proposal of tax exemption for full 10 years for companies making new investments of USD 500 million or more. Another variant of the same scheme will provide a 4 years tax exemption for companies investing USD 100 million or more in labour intensive industry like textile, food-processing, leather and footwear.( Shruti Srivastava, 2020) Therefore, it can be seen that in order to attract investments from MNCs, many nations offer incentives such as subsidiaries, tax cuts and reduced tariffs.

One thing that is clear is the fact that MNCs and TNCs are very much capable of influencing politics in both domestic and international spheres. It has enough power to influence market conditions, control prices to some extent, exploit available resources and environment, influence political relations, impact social status and become dream employers to many. Therefore, regulating them is a necessity. Besides, regulation can be beneficial in the long run. It can increase

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competitiveness, induce innovations, improve quality of product and services and can create an overall healthy environment for commercial development. The question that arises here is how can MNCs be regulated? Presently there are both international laws and domestic laws that control MNCs to some extent. For instance, both the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) binds MNCs specifically if there is human rights violation (Tromvoukis Konstantinos). In the domestic sphere, there are laws like tax laws or patent laws of the region which regulate MNCs to some extent. However, it is hard to get that proper balance where there is no over-regulation while some sense of control still does exist. Another option is to adopt self regulating policies.

But, self-regulation may not always work as expected. Perhaps slight push from government and international agencies with voluntary initiatives to regulate themselves could lead to better success.

Understanding Self- Regulation Self-regulation means voluntary initiatives taken to regulate one-self. In case of MNCs these are such initiatives which reduce excess exploitation at any end or abuse of power. For example, an MNC may decide to adopt a policy to regulate attendance of employees especially in the present pandemic scenario. Similarly, the company may also adopt a policy to be more lenient towards pregnant employees and have a childcare department for all employees. Some early adoption of self-regulation can be seen in American film industry in the 1900s.

The Motion Picture Producers and Distributors of America Incorporated (MPPDA), which changed its name to the Motion Picture Association of America Incorporated in 1945 and began reviewing scripts on an advisory basis in 1926.

In order to avoid the charges of immorality, it created a list of do’s and don’ts which were distributed to member firms by next year. This way they wished to get rid of local and State censorship. However, this policy saw limited success as producers were reluctant against outside interference and submitted only 21% of scripts (Piepenburg, Claire, 2018). Then came threats of boycott from Catholic Church. In order to counter this, Joseph I Breen—a former journalist, prominent Roman Catholic, and anti-Semite was invited to work upon another Code which could inspire public trust. The Code adopted three principles;- no picture shall be produced which will lower standards of those who see it, hence the sympathy of the audience shall never be thrown to the side of crime, wrong-doing, evil or sin, correct standards of life, subject only to the requirements of drama and entertainment, shall be presented;

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law, natural or human, shall not be ridiculed, nor shall sympathy be creat ed for its violation (MPPDA Digital Archive, 1931). The code did not give consideration to context or artistic merit. Another issue was that the Code acted as supreme authority in the film industry. As such it could openly discriminate by dealing with five major firms like Paramount Pictures, Warner Brothers, Twentieth Century Fox, Sony Pictures Entertainment and Universal Studios differently than independent filmmakers and producers. Therefore, this model failed. Later on, Jack Valenti MPAA President developed another system of rating which is now internationally used. Developed first on November 01 , 1968, it used age as means of classification. Terms like G (general), M (mature), R (persons under 16 not admitted unless with a parent or adult guardian) and X (persons under 16 not permitted) were used in the original rating system. PG rated system was also instigated. NC-17 was introduced in the 1990s. st

Today, this self-regulated rating system has found quite a success with many streaming services such as Netflix, Amazon Prime and the like using similar rating systems as well though whether it is being done due to intense scrutiny by the State or not is still a question to be answered. But one thing that one can see from the above presented example is that the companies tend to self- regulate when they find that the other option is to follow coercive regulations formulated by the State. However, fear of over-regulation or coercive regulations, as shown in earlier examples, is not the only reason why self-regulation has found its place within such changing weather or power balance of State and other major corporate institutions. Another reason for adopting self-regulating policies is to demonstrate a company’s willingness to restrain from societal damage or any significant environmental destruction. It also showcases transparency in management which is always encouraged on all fronts. These two points improve public trust and public perception. Lack of Government regulations are also one of the reasons why self- regulation is adopted at times. For instance, the international non-profit organisation, Forest Stewardship Council was formed when there was lack of regulation in sustainability of natural resources (Lisa L. Sharma, Stephen P. Teret and Kelly D. Brownell , 2010).

It is not possible to discuss self-regulation without discussing Government regulation. Without Government regulation there will be no comparison point and it would be hard to understand why businesses prefer self- regulation.

Government regulated policy is focused on public welfare and the stability of the economy. However, it ends up over-regulating on many occasions. For example, according to a survey by Harvard Business School as a part of the US

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Competitiveness Project, large companies are investing less than before and one of the main reasons for the same is fewer and less expensive regulations in other countries (Mark Earley, 2016). It also stifles innovation by over-regulating.

Growth becomes slower with huge monopolies raising their heads and competitiveness is hurt. Hence, consumers have to pay a higher price for the product which otherwise would have been more affordable (Chris Seabury, 2021).

Government regulations are more vulnerable to lobbying activities. This means that preference of politicians would play a major role while penalties may be subject to a higher level of discretion. This would hurt overall freedom as not all would accept all the regulations. For example, a regulation restricting freedom of speech may not be acceptable to newspaper companies, film industry, blog writers and other members of society which work mainly in content writing institutions.

Government regulation for every little aspect is not good for economic growth and business of MNCs. Therefore, it is understandable that at certain times selfregulation is a feasible alternative to Government regulation.

How Does Self- Regulation Work?

With increasing power of MNCs and globalisation escalating into worldwide phenomenon, regulating and means of regulating MNCs are some hotly discussed topics. Strict Government regulation, as discussed before may not work and MNCs may as well find them stifling, resulting in them not dealing with nations with such regulation. However, even MNCs are aware of the necessity of regulation, therefore they self-regulate. But, these regulations may not always meet the required standards or may not always be enough. This gives the Government a chance to intervene and question the validity of such regulations.

When it comes to regulations, there are four questions that need to be answered.

First, who designs these rules? In case of State regulation, Government is the formulating the regulations and it cannot be denied that at times Government regulations can be stringent and too rigid. Self- regulation on the other hand, is designed by the companies themselves but at times they overlook public welfare or may not make regulations rigid enough. Next question is who adopts these rules? This one is simpler. Either companies adopt individual regulations or multiple companies within the same industry, under self-regulation, however, when State regulations are made they are adopted of the same becomes mandatory for all; for example laws may force an MNC to make its employee work for a certain period of time during a day and no more. Now with State regulations, the rules made are of more general nature while self-regulation is

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more specific. Third question is how is compliance monitored? For State regulation, a proper organisation is established like the Securities and Exchange Board of India (SEBI). For self-regulation, self-policing is one way but not very trustworthy. Hence, third party verification is needed from time to time. Last question is do the rules achieve what it was supposed to? Both State regulations and self-regulations show both success and failures on this front (Martha Lagace, 2007).

In order to optimize the self- regulatory regime, many industries established SelfRegulatory Organisations (SROs). SROs are many times responsible for setting standards and industry regulations which are from the private sector. These organizations are from the private sector, which as previously stated has power to set regulations and standards in any given industry. Such power has been invested in it through its member firms of a particular industry which are stakeholders of the organization. Stakeholders also include representatives of consumers and public interest. These organisations, however, are subject to Government regulations. Examples of such organizations include, Investment Industry Regulatory Organization of Canada (IIROC) and the Association of Mutual Funds in India (AMFI) (Adam Hayes, 2021).

SROs are not without limitations. Firstly, there is the possibility of being a bad actor. That is to say that a firm which is not part of SRO will still benefit from the regulatory regime without paying any costs. On the other hand, this ‘bad actor’ may remain outside SRO and not accept the regulations made by the same (Daniel Castro, 2011). Self-regulation is definitely more in favour of businesses. For instance, the regulations adopted may be business and consumer focused than the general public. This is to say that a self-regulatory policy may have been adopted only on paper to appease investors or partners, but there may not be actual ground adoption of the same. Also, there is always a possibility of regulations which are designed and monitored by one’s own self to be weak and lax. Another issue that self-regulation creates is that it creates different standards making it difficult for suppliers to meet all the standards across any particular industry. Yet, the companies cannot coordinate such standards without co-operation from a significant number of other companies in the same field due to high costs.

Therefore, it has been seen that many self-regulatory policies such as standardization of pipeline quality or quality of storage facilities in the chemical industry are the result of concerns raised after major issues like oil spill in significant water bodies or chemical leak causing major issues in the surrounding environment. So, a question rises, is self-regulation genuinely voluntary in nature?

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Many suggest that these policies are adopted because coercive pressures require them to. For example, a supplier of cotton or wool yarn may get its produce certified from a third party to satisfy a significant customer who places big orders determined by the quality of the same.

Self- Regulation and International Law Soft law is any quasi-legal instrument used to probe an actor to behave in a certain manner. Guidelines issued by Government or international institutions to encourage better ethics or good business practices can be considered as soft-law as they have no legal binding but encourage and often pressurise a firm to adopt them. SROs also adopt such guidelines that complement state policies, creating soft law of another kind. Self-regulation can work better if it is under the framework of international regulation. For example, OECD (Organisation for Economic Co-operation and Development) guidelines for MNCs on human rights, labour rights and environment establish a unique, government-backed, international grievance mechanism to address complaints between companies covered by the OECD Guidelines, and individuals who feel negatively impacted by irresponsible business conduct (The OECD Guidelines).

Under the current international human rights law, primary accountability lies with the nation. Hence, MNCs are not explicitly covered under international human rights law. But, as the Preamble of the Universal Declaration of Human Rights states, “...every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures...” (Universal Declaration of Human Rights, Preamble). One may interpret this statement to include MNCs as well but the Preamble itself is not part of mainstream international human rights laws (John Ruggie, UNHRC, 2010). Therefore, there is no real responsibility to MNCs through international human rights laws. Multiple times, international institutions have tried to bind MNCs under international human rights law. For example, the United Nations drafts norms on the responsibilities of transnational corporations and other business enterprises with regards to human rights. These norms faced severe criticisms and were abandoned. Then came guiding principles on business and human rights; these principles were both criticised and praised. The praise was because these principles spread awareness (Susan Ariel Aaronson and Ian Higham, 2013) regarding the issue and also separated state obligations and corporate responsibilities. The critics, on the other hand, exclaimed that the principles were neither binding nor substantial enough to form a normative

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framework which could be used as reference (Jan Wouters, Anna-Luise Chané, 2013).

With MNCs rallying against binding instruments, a non-binding approach was taken. The Global Compact, a ‘soft law’ policy initiative for businesses which voluntarily commits to respect and support ten principles in the areas of human rights, labour, the environment, and anti-corruption, derived from the UDHR, the ILO’s Declaration on Fundamental Principles and Rights at Work, the Rio Declaration on Environment and Development and the UN Convention Against Corruption was adopted. This initiative also saw both praise and criticism. The main criticism is on the fact that there is no review mechanism, besides lack of monitoring and audit (Weilert).

Self-regulation has been seen as a better alternative here. MNCs strongly reject ‘hard laws’ but voluntarily adopted softer approach where they have shown their respect to human rights by adopting self-imposed code with legal consequences such as deceptive advertisement (Su-Ping Lu, 2000) or liability for damages under torts in case of violation (Wouters and Ryngaert). However, actual compliance is still under doubt. Third-party verification system is not in play, while selfevaluation is not very transparent or accurate. Another area of international law that MNCs have to get tangled with is international environmental law.

Environmental conduct of most MNCs is subject to controversy. There are some scholars claiming that MNCs do not bear enough damages and do not conduct themselves in a responsible manner. While others claim that self- regulation policies adopted in this front have been working brilliantly. The issue with selfregulation on the environment is that the policies adopted are designed to conform to the laws of the market so as to not restrain trade or economic profit, making them not effective enough. Also, critics have raised the issue of selfregulating firms having commercial relationships with external auditors. This makes one question the credibility of auditing mechanisms. Efficiency of selfregulation also seems to depend on the external regulation regime. For example, in a developed nation with stronger laws for environment protection, selfregulation is not very strongly adopted because in this case they are not cost efficient. However, in the case of developing nations, the companies are more strongly adopting and implementing self-regulatory measures as they seek to export to nations with strong institutional regimes and improve internal efficiency (Corporate environmental impact, 2017).

Example of Self- Regulation

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Does self-regulation work everywhere? The answer is no because self-regulation sometimes works and sometimes it does not work. It depends on the purpose of the regulation itself. Also, it works more if it gets support from Governments or if it is required by consumers or if need is so much that without any self-regulation on certain subjects actual working will be obstructed or if the self-regulatory regime is adopted by more companies in the same industry. For example, recently, 17 of India’s biggest streaming services adopted a ‘toolkit’ which is essentially a self-regulatory Code to bring effective procedure for age classification, appropriate content description, and access control. The provisions have put together a grievance redressal mechanism. A Secretariat is to be established, which will consist of representatives of all the signatories of the toolkit, to administer implementation of the toolkit and Code. The Secretariat will also seek updates from member companies on implementation of provisions, work on online content specific laws and will update the members regarding legislative or judicial development on the same. This self- regulatory Code is still young and therefore there is no guarantee of its success. This example especially focuses on selfregulatory mechanisms adopted when there is no Government policy available.

However, there are times that these regulations are adopted to encourage social, physical or mental well-being of society. Though, it is still questionable if these are adopted due to genuine belief or due to societal pressure. For example, in the UK, fashion magazines are adopting self-regulation under which they refuse to use unhealthily thin models and blacklisting any agency which persistently provides them. This step has been taken because of strong backlash that the fashion industry faced due to consistent use of ‘young and thin’ models (Lucy Ward, 2000). Showcasing such figures has led to many women feeling inadequate in terms of size, shape and age. Will this help? This is a debatable question. There is a side which claims that if heath is a classifying factor and a certificate from a doctor is required, then it is feasible. Yet, the other side finds the idea to be ridiculous. Health is a subjective matter. It varies from one individual to another.

For instance, while one can generalise the amount of calories that an adult male or female would require, a balanced diet would still depend on an individual metabolism, environment, genes and other biological factors which differ in every individual. Therefore, the insistence of the fashion industry on using certified healthily thin models would not help in improving self-esteem of women who are unable to relate themselves with such models. Besides, getting a certificate from a doctor may not always mean health in every sense of the word (Kirstie Clements, 2013).

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Conclusion Corporate self-regulation has many shortcomings. For instance, lack of third party verification, considerably softer repercussions than State regulation and vulnerability to change in accordance to trade and economic profit. As such its effect in reality is questionable. But State regulation is also not without limitations.

Over-regulation limiting innovation and growth, political manipulation and improper regulation resulting from lack of knowledge are few such limitations.

But one has to compare shortcomings with the advantages to understand which would be a better option. Self- regulation is more flexible allowing businesses to consider market laws which provide room for improvisation and innovation, before designing the regulations. Hence, it allows more room for economic growth. Besides as previously mentioned if the company does not properly implement what was self-imposed, it would be seen as deceptive advertisement and the company will be liable to pay damages under tort. While this option does not mete out punishment as strong state regulation could, it is still not nothing and besides any such suit would hurt the good name of the company and would look bad in front of investors. State regulation on the other hand, generates public trust. It is more stringent and repercussions of violation are much stronger.

Consumer benefit and safety is the focus of these regulations and not market laws.

But, why would MNCs accept these State designed regulations. On the other hand, will self-regulations improve the present scenario? Will it have any actual effect? Consider the situation of social media platforms. They are reluctant to censor their digital platforms. These companies generate powerful feedback loops by connecting users with other market actors. These companies then monetize the loops by selling them for advertisements. So, while they are able to earn a substantial amount, they also give a platform to misleading information, political manipulation and in some cases even violence (Michael A. Cusumano, Annabelle Gawer, and David B. Yoffie, 2021). Why would an MNC jeopardise its profit by accepting State regulation on digital censorship. But being aware of public backlash of not accepting regulations, it is likely they would favour self-regulation.

However, such regulation is unlikely to quell public distrust. A better solution for such a problem can be co-regulation, where both, the State as well as various MNCs in that industry would decide upon regulations which are neither too rigid nor too flexible. This does not mean that both parties will automatically become equal shareholders. They may decide a power balance which would slightly favour one party but will be an affordable compromise for the other. Besides, every industry needs a different amount of State intervention. Sometimes, the State can just slightly adjust self-regulatory policy and invest certain power into monitoring

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of the implementation. At other times, the State may involve itself with representatives of various MNCs and design regulation on certain issues like acceptable working hours for an employee. One can say that self-regulation would work best when the need is high for a regulation and there is optimum pressure present. It would work even better if it could mix well with State regulations and policies. It can be concluded that creating a balance between State regulations and allowing room for MNCs to self-regulate itself is of immense importance. One cannot deny that over-regulation can not only slow down development but also be disadvantageous to the overall corporate environment. Yet, self-regulation will work in all scenarios and in every industry is simply a foolish belief. Besides, we cannot deny that State regulation allows consumers to feel more secure and at ease.

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Isaac, K. S., Ibidunni, A., Kehinde, O. J., Ufua, D., Elizabeth, K. B., OyoIta, D., & Mathias, C M. (2020). The role of multinational corporations in global economic practice: literature review [online]. Journal of Management Information and Decision Sciences, 23(5), 619-628. Available athttps://www.abacademies.org/articles/theroleofmultinationalcorporationsinglo baleconomicpracticeliteraturereview-9918.html [Viewed on 26 June 2021] US movie rating system [online], Blog, Available athttps://www.ramsar.org/qnfnz/ayoibu/viewtopic.php?id=us-movie-ratingsystem [Viewed on 26 June2021] Andreas, Advantages and disadvantages of regulation, 26 Crucial Pros & Cons of Regulation [online], Blog, Available at-https://environmentalconscience.com/government-regulation-pros-cons/ [Viewed on June 27 2021] Daniel Castro, Benefits and Limitations of Industry Self-Regulation for Online Behavioral Advertising [online], The Information Technology & Innovation

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Foundation (Published in December 2011) https://itif.org/files/2011-selfregulation-online-behavioral-advertising.pdf [Viewed on 27 June 2021] Chris Seabury, The Cost of Free Markets [online], Reviewed by-Michael Boyle, Investopedia, Economics [updated 24 June 2021] Available athttps://www.investopedia.com/articles/economics/08/free-marketregulation.asp [Viewed on 27 June 2021] Adam Hayes. Self-Regulatory Organization (SRO) [online], Reviewed byGordon Scott, Investopedia, Markets; Stock Markets [updated on 1 July 2021], Available at- https://www.investopedia.com/terms/s/sro.asp [Viewed on 3 July 2021] Martha Lagace. Industry Self-Regulation: What’s Working (and What’s Not)? [online], Business Research for Business Leaders, Harvard Business School [posted 9 April 2007], Available at- https://hbswk.hbs.edu/item/industry-selfregulation-whats-working-and-whats-not [Viewed on 3 July 2021] OECD. The OECD Guidelines for Multinational Enterprises [online], 2011 Edition (general introduction), Available at-https://www.oecdwatch.org/oecdncps/the-oecd-guidelines-for-mnes/ [Viewed on 3 July 2021] United Nations. Universal Declaration of Human Rights [online], Preamble, Available at-https://www.un.org/en/about-us/universal-declaration-of-humanrights [Viewed on 3 July 2021] Wouters, Jan & Chané, Anna-Luise. (2013). Multinational Corporations in International Law [online]. SSRN Electronic Journal. 10.2139/ssrn.2371216 (updated version Feburary 2015).

Available athttps://www.researchgate.net/publication/272241501_Multinational_Corporati ons_in_International_Law [Viewed on 4 July 2021] Corporate environmental impact - why self regulation isn't enough [online], Business and society, Environment, Research (Posted on 18 September 2017) https://blogs.bath.ac.uk/business-and-society/2017/09/18/self-regulationcorporate-environment-impact/ [Viewed on 4 July 2021]

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Christmann, P. (2004). Multinational Companies and the Natural Environment: Determinants of Global Environmental Policy Standardization [online]. The Academy of Management Journal, 47(5), 747-760. doi:10.2307/20159616 (October 2004) https://www.jstor.org/stable/20159616 [Viewed on 4 July 2021] Lucy Ward. Fashion magazines agree to ban use of unhealthily thin models [online], The Guardian, E-Newspaper (published on 22 June 2000), Available athttps://www.theguardian.com/uk/2000/jun/22/lucyward [Viewed on 5 July 2021] Kirstie Clements. Former Vogue editor: The truth about size zero [online], Anna Wintour, The Guardian, E-Newspaper, (published on 5 July 2013) Available athttps://www.theguardian.com/fashion/2013/jul/05/vogue-truth-size-zerokirstie-clements [Viewed on 5 July 2021] Michael A. Cusumano, Annabelle Gawer, and David B. Yoffie. Social Media Companies Should Self-Regulate. Now. [online], Harvard Business Review Home, Economics & Society (published 15 January 2021) Available athttps://hbr.org/2021/01/social-media-companies-should-self-regulate-now [Viewed on 5 July 2021] Njogu, T. (2019, August 27), Difference Between Multinational and Transnational. Difference Between Similar Terms and Objects. [online], available athttp://www.differencebetween.net/business/difference-betweenmultinational-and-transnational/. [Viewed on 27 June 2021] Fernando Belinchón and Qayyah Moynihan , Business Insider España (2018, July 25), 25 giant companies that are bigger than entire countries, Insider [online], available at- https://www.businessinsider.com/25-giant-companies-that-earnmore-than-entire-countries-2018-7?IR=T [Viewed on 27 June 2021] Alexandra V.(2018, November 13), Ladders, Amazon HQ2 means 50,000+ new jobs, but not everyone’s happy about it [online], available athttps://www.theladders.com/career-advice/amazon-hq2-means-50000-newjobs-but-not-everyones-happy-about-it [Viewed on 26 June 2021] Tromvoukis Konstantinos, Multinational Corporations in International Law: A treaty to “rule” them all [online], Prof. Dr. J. E. Nijman, LLM in International

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and European Law: Public International Law, University of Amsterdam, available at- https://scripties.uba.uva.nl/document/657614 [Viewed on 27 June 2021] Shruti Srivastava, India to plan tax holiday to win new investments [online], The Economic Times, English Edition, E-Paper, updated on May 12, 2020, available athttps://economictimes.indiatimes.com/news/economy/policy/india-toplan-tax-holiday-to-win-newinvestments/articleshow/75690968.cms?from=mdr [Viewed on 14 July 2021] Mark Earley, Government Over-Regulation Impacts US Businesses [online], Tecma, Blog, updated in 2016, available athttps://www.tecma.com/government-over-regulation-impacts-us-businesses/ [Viewed on 17 July 2021] Su-Ping Lu, ‘Corporate Codes of Conduct and the FTC: Advancing Human Rights through Deceptive Advertising Law’ (2000) 38 Columbia Journal of Transnational Law 603. [Accessed on 5 July 2021] Susan Ariel Aaronson and Ian Higham, ‘“Re-righting Business”: John Ruggie and the Struggle to Develop International Human Rights Standards for Transnational Firms’ [online] (2013) 35 Human Rights Quarterly 333, 336, ReseachGate, (posted on September 2011) Available athttps://www.researchgate.net/publication/228184690_'ReRighting_Business'_John_Ruggie_and_the_Struggle_to_Develop_International _Human_Rights_Standards_for_Transnational_Firms [Viewed on 5 July 2021] UNHRC, ‘Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie’ (2010) UN Doc A/HRC/14/27 para 55; De Brabandere (n 25) 67. [Viewed on 6 July 2021] Lisa L. Sharma, Stephen P. Teret and Kelly D. Brownell, “The Food Industry and Self-Regulation: Standards to Promote Success and to Avoid Public Health Failures,” [online] American Journal of Public Health 100, no. 2 (2010): 242 (published online on 20 September 2011) Available athttps://ajph.aphapublications.org/doi/10.2105/AJPH.2009.160960 [Viewed on 6 July 2021].

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Dispute Concerning Delimitation of Maritime Boundary Between Mauritius and Maldives in the Indian Ocean Rajluxmi Joshi University of Mumbai, India solapur1972@gmail.com

Facts The Republic of Mauritius had instituted arbitral proceedings against the Republic of Maldives before the International Tribunal for the Law of the Sea (ITLOS) on 24 September 2019 to delimit the maritime boundary between Mauritius and Maldives in the Indian Ocean (ITLOS, 2021). The proceedings were instituted after the International Court of Justice (ICJ) gave the advisory opinion on the legal consequences of sovereignty over Chagos Archipelago. The Chagos Archipelago lies 2,200 kilometres north-east from the territory of Mauritius. The territory of Mauritius was colonised by the French till 1814 which also included the Chagos Archipelago as a part of Mauritius. The French Government later signed the Treaty of Paris in 1814 and ceded Chagos Archipelago to the United Kingdom. In 1965, the United Kingdom separated Chagos Archipelago and declared the territory to be under the sovereignty of the United Kingdom to form the British Indian Ocean Territory (BIOT). The Chagossians were displaced from Chagos Archipelago to Mauritius and Seychelles. Mauritius claims that the United Kingdom had not decolonised Chagos Archipelago despite being a signatory to the Declaration on the Granting of Independence to Colonial Countries and People in 1960 (UNGA, 1960). In 2001 the Government of Maldives had earlier denied preliminary negotiation to delimit maritime boundary between Maldives and Chagos Archipelago as the Government of Maldives considered inappropriate to initiate any talks over Chagos Archipelago as Mauritius did not have jurisdiction over Chagos Archipelago. Later in 2011, the Prime Minister of th

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Mauritius and President of Maldives agreed to conduct bilateral meetings to delimit the extended continental shelf between Maldives and Chagos Archipelago.

In 2010, the United Kingdom had announced the Chagos Archipelago as a Marine Protected Area (MPA). Mauritius instituted arbitral proceedings in the Commission on the Limits of the Continental Shelf (CLCS) against the United Kingdom regarding Chagos Marine Protected Area. On 18 March 2015, the Arbitral Tribunal found that the United Kingdom had violated Article 2(3), 56(2), 194(4) of the United Nations Convention on the Law of the Sea (UNCLOS) (CLCS, 2015). th

The United Nations General Assembly (UNGA) passed a Resolution 71/292 on 22 June 2017, pursuant to Article 65 of the Statute of the ICJ for seeking an advisory opinion from the ICJ on the legal consequences of the separation of the Chagos Archipelago from Mauritius in 1965 (UNGA, 2017). ICJ delivered its advisory opinion on 25 February 2019 and provided that the United Kingdom had not lawfully completed the process of decolonisation of Mauritius by subsequently separating the Chagos Archipelago from Mauritius. The Court opined that the United Kingdom must end its administration over Chagos Archipelago and for this purpose all member states of the United Nations are under an obligation to participate in decolonization of Mauritius (ICJ, 2019).

Pursuant to the advisory opinion by ICJ, the United Nations Resolution 73/295 on 22 May 2019 demanded that the United Kingdom must discontinue its administration over Chagos Archipelago within 6 months (UNGA, 2019). 116 Voted in favour of the resolution with 6 against and 56 abstentions. However, the United Kingdom has not initiated any action on the demand of United Nations General Assembly Resolution 73/295 within the time limit. Hence, the Republic of Mauritius claimed that since it has sovereignty over Chagos Archipelago, Republic of Maldives and Republic of Mauritius have transferred the dispute concerning the delimitation of maritime boundary between Mauritius and Maldives in the Indian Ocean to a special chamber of the ITLOS. nd

th

nd

On 28 January 2021, the ITLOS had provided judgment based on the Preliminary Objections raised by Maldives and the response to it by Mauritius. th

First Preliminary Objection The Republic of Maldives contended that the United Kingdom is an indispensable third party to the present proceedings, and, as the United Kingdom is not a party to these proceedings, the Special Chamber does not have jurisdiction

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over the alleged dispute. According to Mauritius, the subject-matter is the delimitation of a maritime area between Chagos Archipelago and Maldives and since ICJ has made it clear that United Kingdom has no sovereign rights over Chagos Archipelago and therefore, United Kingdom is not an indispensable party to the case.

Second Preliminary Objection The Republic of Maldives, it states that the Special Chamber has no jurisdiction to determine the disputed issue of sovereignty over the Chagos Archipelago since it is not a coastal state opposite or adjacent coast to the Maldives, which it would necessarily have to do if it were to determine Mauritius’ claims in these proceedings. Mauritius contends that since the subject matter is to resolve disputes between Exclusive Economic Zones and delimit maritime boundary between Mauritius and Maldives, it does not intend to settle the territorial dispute of Chagos Archipelago.

The Special Chamber in the said dispute has combined the first and second preliminary objection since both issues are inter-related to each other. The Special Chamber is of the view that since the United Kingdom has failed to end its wrongful administration over Chagos Archipelago, Mauritius has legal right to delimit the maritime boundary over Chagos Archipelago (ITLOS, 2021).

Therefore, the Special Chamber has rejected the first preliminary objection raised

by Maldives. Further, the Special Chamber has regarded Mauritius as the coastal state only for the purpose of the delimitation of a maritime boundary. The Special Chamber has regarded Mauritius as the state with an opposite or adjacent coast to the Maldives within the meaning of article 74 and 83 of the UNCLOS (ITLOS, 2021). Therefore, the second preliminary objection of the Maldives is rejected.

Analysis of the First and Second Preliminary Objections The Special Chamber has recognised Mauritius as a coastal State and has also regarded the United Kingdom as not an indispensable party to this case since the delimitation of maritime boundary can bring clearer understanding between the two states. However, it is crucial to know the geography of Chagos Archipelago.

The Chagos Archipelago is strategically located to the south of Indian Ocean and provides passage for trade & commerce for various countries. The significance of Chagos Archipelago is that the United States of America (USA) has a naval base

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on lease by the United Kingdom in one of the largest islands in Chagos Archipelago known as Diego Garcia. Diego Garcia has helped the USA acquire vital information in the Middle East and Central Asia. The island acts as a station of communication in identifying threats in the region. It has recently asked the troops deployed in Afghanistan to return to America. The withdrawal of US forces from the region implies that America is now concerned with developing its economy by healthy relations in the Middle East and Gulf Countries. As reiterated, American demands have grown with industrialisation as a result of which the need of oil from the region is also increasing. Hence, the presence of the U.S. Navy is also increasing in the island. The island provides a direct sea route to the Gulf Region, Africa, Central Asia, South-East Asian Countries, and Australia. It can be seen that apart from the key players of the 20 century, China is strengthening its grip in the Indian Ocean. This has not only threatened the power of the United Kingdom, USA but also India’s position in the Indian Ocean and West Asia. China is convincing West Asian Countries to be a part of its One Belt One Road Initiative. People’s Liberation Army Navy (PLAN) has increased its reach in the Indian Ocean by allying with economically weaker countries in African Continent and West Asia. As a step towards building naval bases and harbours in Indian Ocean, it is creating a Maritime Silk Route. In order to counter China’s presence in the Indian Ocean, India and USA have come closer to form a defence strategy and have continued political influence in the region. The key players in the Indian Ocean are extending their reach in the region by holding bilateral ties with countries that have access to Indian Ocean and its resources.

Due to this tussle between notable countries, the United Kingdom and USA will confine the resources of the Continental Shelf from the reach of Mauritius and make it difficult to complete the process of decolonization of Mauritius. The Special Chamber by declaring Mauritius as a coastal State has paved way to utilise the Exclusive Economic Zone of Chagos Archipelago after the sovereignty dispute between United Kingdom and Mauritius is resolved. The constant attempt of the United Kingdom and USA to decline trilateral talks with Mauritius is only resulting in increasing pressure from Member States of the United Nations.

India has been firm in its stand on decolonisation of territories. In the Sovereignty dispute over Chagos Archipelago, India has stood by Mauritius and its claim over Chagos Archipelago. It recognises that the United Kingdom has not completed the decolonisation of Chagos Archipelago and that the human rights of Chagossians were violated. In asserting the fact that the United Kingdom has no legal interest in the delimitation of maritime dispute between Mauritius and Maldives, it opens the doors of Mauritius to claim rights over the Exclusive Economic Zone of Chagos Archipelago. Under such circumstances, India stands in advantage since it is constantly trying to put forth its footprint in the region. th

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India’s emerging ties with Mauritius can help both the countries station defence equipment from understanding the strategic importance. It can be foreseen that India’s helping hand to Mauritius may secure the region from possible war and natural calamities. Although the futuristic perspective may seem bright, Mauritius has to bring Member States of the United Nations closer to their intention of having an appropriate administration in the Chagos Archipelago and ensure that Chagossians will inhabit the island with facilities. In the history of India- Mauritius relationship, India has offered growth in cultural, religious, educational, economic and defence association. Seeing the significant progress made by developing and developed nations in Indian Ocean, Indian interest lies in providing help to Mauritius. This will ensure India to establish favourable conditions in the region such as growth in trade and commerce.

Third Preliminary Objection The Maldives contends that since the dispute of sovereignty over Chagos Archipelago between the United Kingdom and Mauritius remains unresolved, Maldives cannot meaningfully engage in the negotiations of delimitation of maritime boundary over Chagos Archipelago as required under Articles 74 and 83 of the UNCLOS. Therefore, the Special Chamber lacks jurisdiction. However, Mauritius maintains that it has complied with the procedural pre-condition as required under Article 283. The Special Chamber notes that Mauritius had made the attempt to conduct bilateral meetings between Mauritius and Maldives on the overlapping Continental Shelf. The Special Chamber views that under such circumstances, Part XV of UNCLOS is the resort. The Special Chamber has concluded that the obligation under Article 74 and Article 83 of the UNCLOS has been fulfilled. Therefore, the third preliminary objection of the Maldives is rejected.

Fourth Preliminary Objection The Maldives contended that there is no dispute between Mauritius and the Maldives concerning its maritime boundary so the Special Chamber has no jurisdiction. The Special Chamber took note of the invitation by Mauritius to the Maldives for the second round of discussions on maritime delimitation on 7 March 2019, to which the Maldives did not respond. The Special Chamber has also emphasised on the opinion of ICJ that in case if a state fails to respond to the claims made by another state then a dispute exists between the parties. The

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Special Chamber concludes that in the present case a dispute existed between the Parties concerning the delimitation of their maritime boundary at the time of the filing of the Notification. Therefore, the fourth preliminary objection of the Maldives was rejected.

Fifth Preliminary Objection Mauritius’ claims constitute an abuse of process and should therefore be rejected as inadmissible at the preliminary objections phase. Mauritius contended that it has invoked the jurisdiction to resolve the maritime delimitation dispute since the ICJ has issued the ruling of sovereignty over Chagos Archipelago (ITLOS, 2021).

The Special Chamber states that the claims of Mauritius are within the scope of Article 74 and 83 of UNCLOS and therefore, the fifth preliminary objection of the Maldives was rejected.

Analysis of the Third, Fourth and Fifth Preliminary Objections Part XV of UNCLOS provides for settlement of disputes. The settlement of dispute can only be initiated if negotiation between States have been conducted or attempted. In a letter dated 18 July 2001, the Government of Maldives informed the Government of Mauritius that it does not intend to commence any discussion on the delimitation of the maritime boundary over Chagos Archipelago. Maldives must strategize to consolidate with its neighbouring countries into partnership. India has been able to provide humanitarian aid and assistance to Maldives considering the distance between India and Maldives for over decades with its history of tsunami and many other natural catastrophes. On 21 February 2021, an Agreement to develop, support and maintain a Maldives National Defence Force Coast Guard Harbour at Sifvaru was signed (MEA, 2021). Maldives has ensured interrupted energy supplies to India. President Ibrahim Solih's support has taken the relationship between India-Maldives to a better scale. However, Indian interest lies in strengthening regional cooperation since China has opted to group countries by engaging in more economic provision for Small Island Developing States (SIDS) like Maldives. China’s presence in Maldives had also severed ties with India from the side of Maldives.

A series of terrorist activities can also be seen in Maldives. India is committed to stand against all terrorist related activities. Therefore, India’s approach towards Maldives is equally important from a political standpoint. Maldives also stands th

st

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like a side gateway to International Water from defence and trade related purposes. In order to minimise any blockage from Maldives in the future, India must extensively commit to its relationship with Maldives such as the Ekuverin Exercise and contribute to trade and commerce between India and Maldives.

Creating employment opportunities in the field of technology can act as a variant in a country that is mostly dependent on tourism. If Maldives sees an opportunity in Chagos Archipelago, it can create human capital along with Mauritius. But since Maldives is reluctant to execute bilateral talks with Mauritius, the Special chamber has recognised Mauritius’ request to delimit the maritime boundary of Chagos Archipelago.

Conclusion In the present case, the Special Chamber is said to have jurisdiction to delimit the maritime boundary between the Parties over Chagos Archipelago and the claims of Mauritius is regarded as admissible. The Special Chamber has also recognised that although the dispute of sovereignty exists between the United Kingdom and Mauritius over Chagos Archipelago, Mauritius is entitled to certain maritime rights. This acknowledgement made by ITLOS will promote independence of Mauritius around the continental shelf of Chagos Archipelago which will in turn benefit India in establishing stronger economic and strategic relations with Mauritius. Furthermore, equivalent exploitation and exploration of resources in the disputed Continental Shelf of Chagos Archipelago by Mauritius and Maldives can initiate stability in the Indian Ocean region leading to growth exchange of Trade and Commerce. It is however regarded by the Special Chamber of ITLOS that the matter be considered for further proceedings. Therefore, the case is reserved for the parties to argue on the merit.

References CLCS, Commission on the Limits of the Continental Shelf. 2015. Award in the Arbitration regarding the Chagos Marine Protected Area between Mauritius and the United Kingdom of Great Britain and Northern Ireland. s.l. : Commission on the Limits of the Continental Shelf, 2015.

ICJ, International Court of Justice. 2019. Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965. s.l. : International Court of Justice , 2019.

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ITLOS, International Tribunal for the Law of the Sea. 2021. [Online] 28 January 2021. [Cited:18 April 2021]. <https://www.itlos.org/securedl/sdleyJ0eXAiOiJKV1QiLCJhbGciOiJIUzI1Ni J9.eyJpYXQiOjE2MTk4MDQwMjMsImV4cCI6MTYxOTg5NDAyMywidXNl ciI6MCwiZ3JvdXBzIjpbMCwtMV0sImZpbGUiOiJmaWxlYWRtaW5cL2l0bG9 zXC9kb2N1bWVudHNcL2Nhc2VzXC8yOFwvcHJlbGltaW5hcnlfb2JqZWN0 aW9uc1wvQzI4X0p>.

MEA, Ministry of External Affairs. 2021. [Online] 21 February 2021. [Cited: 30 April 2021]. <https://www.mea.gov.in/bilateraldocuments.htm?dtl/33556/Joint+statement+on+Official+Visit+of++External +Affairs+Minister+of+India++to+the+Maldives>.

UNGA, United Nations General Assembly, 1960. [Online] 14 December 1960. [Cited: 26 April 2021]. https://undocs.org/en/A/RES/2708(XXV).

United Nations General Assembly, 2017. [Online] 22 June 2017. [Cited: 28 April 2021]. <https://documents-ddsny.un.org/doc/UNDOC/GEN/N17/181/95/PDF/N1718195.pdf?OpenElem ent>.

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Armed Activities on the Territory of Congo (The Democratic Republic of the Congo vs. Uganda) Richa Vyas, Ananya Srinath & Tvisha Vadhul Vellore Institute of Technology School of Law, India richavyas0606@gmail.com ananya.srinath99@gmail.com tvisha.vadhul@gmail.com

Introduction

In 2000, a case was filed before the International Court of Justice (ICJ) by the Democratic Republic of the Congo (DRC) because of armed activities which took place on the territory of the Congo against the Republic of Uganda and other States in June 1999. DRC placed reliance on Articles 41 and 48 of the ICJ Statute and Rules 73, 74 and 75 of the ICJ Rules. Article 41 of the ICJ Statute empowers the Court to issue such orders, before the Court reaches other procedural or substantive issues in a proceeding when the Court deems it appropriate to preserve the respective rights of either party and thus, the court unanimously issued an Order under Article 41 of the statute granting provisional measures of protection at the request of the DRC. Furthermore, the DRC sought reparation for acts of intentional destruction, looting and the restitution of national property.

Furthermore, they claimed for the resources appropriated by the respondent States. In this article, the authors elaborate the facts of the case, i.e. the Democratic Republic of the Congo vs. Uganda and the issues raised by the Court for questioning. Furthermore, the questions on the armed forces were also raised before the Court, which is discussed in the review. Finally the authors have also emphasised the claims and counterclaims presented by both the parties and the prevalence of the series and decisions taken by the international court so far.

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Facts In 1997, President Kabila came into power in the DRC with the help of Uganda and Rwanda. Initially, Ugandan and Rwandan forces were present in the DRC because of DRC’s consent. However, DRC’s relations with Uganda and Rwanda deteriorated and on 28 July 1998, President Kabila announced the withdrawal of the DRC’s consent to Rwandan military presence in the DRC. On 8 August 1998, President Kabila accused both Ugandan and Rwandan forces of invading the DRC. On 19th June 2000, the DRC filed a request in the international courts for the indication of provisional measures to put a stop to all military activity and in DRC, which abrogated the human rights and sovereignty of the DRC by Uganda.

On 01 July 2000, the Court ordered each of the two Parties to prevent and refrain from any armed action which may jeopardise the rights of the other Party or aggravate the dispute and to take all measures necessary to comply with all of their obligations under international law and also to ensure full respect for fundamental human rights and the applicable provisions of humanitarian law. By June 2003, Ugandan forces completely withdrew from the DRC. th

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Issues After the Order under Article 41 of the ICJ Statute, the Court moved to the question of occupation and violations of human rights and international humanitarian law. The first question before the court was if Uganda was an occupying power in the DRC. The Court concluded that Uganda was the occupying power in Ituri at the relevant time. The Court held that it was under an obligation, according to Article 43 of the 1907 Hague Regulations, to take all measures in its power to restore and ensure, as far as possible, public order and safety in the occupied area, while respecting, unless absolutely prevented, the laws in force in the DRC which was not duly fulfilled. The Court also considered that it had sufficient evidence to conclude that Uganda Peoples’ Defence Forces (UPDF) troops had committed violations of international humanitarian law and international human rights law which were attributable to Uganda.

The Court was called upon to examine the alleged exploitation of Congolese natural resources by Uganda. In this regard, the Court considered that it had credible and persuasive evidence to conclude that high ranking officers and soldiers of the UPDF, had been involved in the looting, plundering and exploitation of the DRC’s natural resources. Moreover, the military authorities

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had not taken any measures to put an end to these acts. Thus, Uganda was responsible, both for the conduct of the UPDF as a whole and for the conduct of individual soldiers and officers of the UPDF in the DRC. This was the case even when UPDF officers and soldiers had acted contrary to instructions given or had exceeded their authority. The Court found on the other hand, that it did not have at its disposal, credible evidence to prove that there was a Government policy of Uganda directed at the exploitation of natural resources of the DRC or that Uganda’s military intervention was carried out in order to obtain access to Congolese resources.

It was alleged that Uganda has failed to take measures to respect international human rights law (IHRL) and international humanitarian law (IHL) in the occupied areas. Uganda reverted and stated that its military presence and activities in the DRC were justified. Initially, it was based on consent by the DRC and its occupation till 1999 was based on self-defence. The Court held that consent provided by one State to another is limited by duration until the consent is withdrawn and the scope of the consent, i.e., acting within the limits specified in the consent. The Court concluded that DRC’s consent was certainly withdrawn by 08 August 1998. Regardless of the withdrawal, Ugandan military activities fell outside the scope of authorization provided by the DRC. Moreover the Court also concluded that Uganda had expanded to occupy the Ituri Province and had failed to take measures to respect IHRL and IHL in the province. This also answered the question of whether Uganda was responsible for violations of its armed forces. The Court rightly held that Ugandan military forces did commit international human rights law violations and gravely breached the international humanitarian law in the DRC. Hence, Uganda was responsible for all activities of its forces because the conduct of any organ of a State (military forces and its personnel) must be regarded as an act of that State. th

In response to the said contentions, Uganda argued that DRC had consented to the activities of Ugandan forces. However, the kind of activities and the extent of said consent remained ambiguous. The ICJ held that the consent/ authorization provided by the DRC was not an “open-ended consent” and was restricted in terms of “geographic location and objectives.” Initially, the DRC had accepted that Uganda could act, or assist in acting against the rebels in the Eastern border and to prevent them from acting across the common border. Thus, the consent only encompassed Ugandan military operations to act in these situations. However, the existence and scope of Ugandan military operations in three border towns that resulted in Uganda taking complete control of the towns and airports, fell

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outside the scope of any agreement between the two parties. Thereby, even if the DRC had not withdrawn consent, these activities would fall outside the authorization provided by the DRC.

Claims The DRC requested the Court to adjudge and declare that Uganda, by invading and occupying Congolese territory, had violated international conventional and international customary law principles on non-use of force including the prohibition of aggression. The application also called upon the Court to make formal pronouncements that the Ugandan military, economic and logistical support to Congolese militia and rebel groups violated the principle of nonintervention in matters exclusively reserved for the domestic jurisdiction of States. The case against Uganda also raised, in a novel and unprecedented way, the legal framework governing the exploitation of natural resources outside the context of decolonization (Okowa, 2006).

1.

DRC’s Claims

The DRC claimed that Uganda engaged in military and paramilitary activities against the DRC’s occupied territory and actively extended military, economic and financial support to irregular military forces operating in the DRC. Thereby, Uganda violated international law governing non-use of force, peaceful settlement of disputes, respect of sovereignty and non-intervention. By committing acts of violence against DRC nationals, destroying their property and by failing to prevent such acts by persons under its control, Uganda violated international legal obligations to respect human rights, including the obligation to distinguish between civilian and military objectives during armed conflict (Shaukat, 2021). By exploiting Congolese natural resources and pillaging DRC assets and wealth, Uganda violated international law governing rules of occupation, respect for sovereignty over natural resources, right to self-determination of people and the principles of non-interference in domestic matters.

2. Uganda’s Counterclaims First Counterclaim In addition to challenging each of the substantive claims on which the Congolese application rested, the Ugandan counter-claims made under Rule 79 and Rule 80

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of the ICJ Rules, Uganda also called on the Court to make a finding of Congolese responsibility for alleged violations of obligations owed to Uganda in the field of use of force and the protection of diplomats. The counterclaim noted that, for a long period between 1994 and 1997, Uganda had been the victim of armed attacks orchestrated by anti-Ugandan rebel groups operating from the Congolese territory with the direct complicity and military support of the Congolese authorities. In the alternative, it argued that the existence of a political vacuum in the East of the country meant that successive Congolese governments were unable to control these provinces and eliminate anti-Ugandan insurgents operating from there. Uganda maintained that in the period immediately following the overthrow of Mobutu, it was invited by Kabila's Government to help eliminate the threat posed by Ugandan rebel groups and to secure the border area. In essence, Uganda was claiming that the presence of its troops in this period was based on legitimate consent of the Congolese authorities and was therefore not contrary to any norms of international law relating to the use of force.

Second Counterclaim The DRC allowed attacks on Ugandan diplomatic premises and personnel in Kinshasa in violation of the law of diplomatic protection. Ugandan counterclaims related to the period after foreign troops had been formally asked by Kabila's Government to leave Congolese territory. First, Uganda maintained that the notice to foreign troops to withdraw was specifically aimed at Rwanda and not Uganda. In the alternative, it argued that it had, in any case, found itself unable to withdraw since the security threats from the anti-Ugandan insurgents that had necessitated Uganda's intervention in the first place had persisted and the attacks from the insurgents had become more pronounced. It, therefore, argued that the continued presence of its troops between 11 September 1998 and 10 July 1999 was an act of legitimate self-defence following Article 51 of the UN Charter.

Uganda went on to maintain that the continued presence of its troops after 10 July 1999 was authorized in terms by a series of inter- related ceasefire arrangements, viz., the Lusaka Agreement (Agreement for a ceasefire in the Democratic Republic of Congo), Kampala Disengagement Plans (Plan for the Disengagement and Redeployment of Force in the DRC) and the Harare Disengagement Plans which had provided for a gradual withdrawal timetable.

Specifically, Uganda also alleged that in this period, its embassy in Kinshasa had been attacked and ransacked by the Congolese authorities contrary to the Vienna Convention on Diplomatic Relations 1961. th

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Third Counterclaim The third Ugandan counter-claim alleged violations by the DRC of the Lusaka Agreement. However, the Court found this counterclaim inadmissible under Article 80, paragraph 1 of the Rules of Court as not being directly connected with the subject matter of DRC’s claims.

Judgment and Relevance In 2005, the ICJ handed down its judgements on this case (International Court of Justice, 2021). The Court first dealt with the invasion by Uganda on DRC. It was found that the DRC had not consented to the presence of Ugandan troops on its territory. Uganda’s claim that its use of force was an act of self-defence was also rejected by the Court, as it found that the preconditions of self-defence did not exist. The Court said that the unlawful military intervention by Uganda was of such magnitude that it violated the prohibition on the use of force as stated in Article 2 of the UN Charter. The Court also found that Uganda had violated the principle of non-use of force in international relations and the principle of nonintervention. This was because Uganda had actively extended military, logistic, economic and financial support to irregular forces operating on the territory of Congo.

Another issue that the Court covered was that of the alleged exploitation of Congolese natural resources by Uganda. Under this fact, the Court considered that there was credible evidence to conclude that officers of the UPDF were involved in the looting, plundering and exploitation of the DRC’s natural resources and there was no measure taken to put an end to these actions. Uganda was responsible for the conduct of the UPDF as a whole as well as for the officers and soldiers of the UPDF. But it was also found that there was no Government policy of Uganda which was directed at the exploitation of natural resources of the DRC or that the military intervention was carried out to obtain access to Congo’s resources. Concerning Uganda’s first counterclaim, the Court found that there was not sufficient evidence to show that Congo had provided military and political support to the anti-Ugandan rebel groups operating in its territory.

Hence, it was rejected.

The second counter-claim of Uganda (International Court of Justice, 2021), part of which alleged the maltreatment of Ugandan nationals at the said airport was

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declared inadmissible. But, there was enough evidence to prove that there were attacks against the Embassy and acts of maltreatment against the Ugandan diplomats at the said airport. It was stated that DRC had breached its obligations under Vienna Convention on Diplomatic Relations. The Court had left the parties to negotiate the terms and conditions and said that if they are unable to reach an agreement based on the judgement then, the Court would give the form, nature and amount of compensation owed by each Party. It was stated in the judgment that the Fourth Geneva Convention (Obligations of Occupying Power), International Covenant on Civil and Political Rights, African Charter on Human and Peoples’ Rights, Convention on the Rights of the Child and the Optional Protocol to the Convention on the Rights of the Child had been violated by Uganda (American Society of International Law, 2021). In 2015, after noting that the negotiations had failed, DRC asked the court to determine the amount of reparation owed by Uganda. To this, the Court observed that the Parties had tried to settle the matter directly, but have been unable to reach an agreement (Cabilte, 2021). In the most recent order of the Court, dated 12 October 2020, the Court, concerning Articles 48 and 50 of the Statue, stated that an expert opinion should be obtained. This would be regarding three heads of damage, alleged by DRC which are the loss of human life, loss of natural resources and property damage. th

Conclusion There are yet dates that need to be given upon making a final judgment on the very instant case which is pending before the ICJ as it seems to be clear that many treaties have been violated and injustice has been done despite prevailing law. The Court found that Uganda violated both the principle of non-use of force and the principle of non-intervention in foreign affairs. Uganda has strongly supported paramilitary forces operations on DRC with military, logistical, economic and financial assistance. In 2015, after noting that the negotiations had failed, DRC asked the court to determine the amount of reparation owed by Uganda. For this, the Court observed that the Parties had tried to settle the matter directly, but have been unable to reach an agreement.

References Cabilte, J. Case Summary of: Democratic Republic of Congo vs Uganda.

Southwestern University: Phinma. [online].

Available from: <https://www.scribd.com/document/366369984/PIL-Report>.

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International Court of Justice. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo vs Uganda). I.C.J. Reports. 2005, 168.

International Court of Justice. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo vs Uganda) Conclusion of the Public Hearings. Press Release No. 2021/16. [online]. 2021. [viewed date: 27 June 2021].

Available from: <https://www.icj-cij.org/public/files/case-related/116/11620210430-PRE-01-00-EN.pdf>.

International Court of Justice. Latest Developments: Armed Activities on the Territory of Congo. International Court of Justice. [online]. 2006. [viewed date: 27 June 2021]. Available from: <https://www.icj-cij.org/en/case/116>.

McGuinness, M. Case Concerning Armed Activities on the Territory of the Congo: The ICJ Finds Uganda Acted Unlawfully and Orders Reparations.

American Society of International Law Insights. 2006, 10(1).

Okowa, P. Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda). International and Comparative Law Quarterly. Cambridge University Press, 2006, 55(3), 742-753.

Shaukat, H. DRC vs Uganda. International Islamic University, Islamabad. [online].

2021. [viewed date: 27 June 2021].

Available from: <https://www.coursehero.com/file/78856705/DRC-vs-Ugandapdf/>.

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Interviews Analysis for Global Hint by Internationalism Global Podcasts

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Russia and the Construct of the Indo-Pacific Edited by: Poulomi Chatterjee Contributing Researcher, Global Law Assembly poulomi@globallawassembly.org

Introduction

The coming decade of the Indo-Pacific suggests that it not only needs to combat Chinese predominance, but also to formulate a stronger model suggesting a capitalist global power projection, as opposed to the US being the only country having such a great power. This threatens the Russian interest of retaining its legacy. Thus, the instant report has attempted to describe the two faces Russia has in the current geopolitical situation, i.e., its role towards Europe and its role towards the Indo-Pacific.

Having a long history and extensive literature of being a competitive player since even before the USSR, Russia undoubtedly has the superpower of an imperial DNA in general, while also having an exceptional set of know-how in the subject matter of geopolitics. In the coming decade of the Indo-Pacific, in order to revive Russian interests, the state attempts to become the new norm setter, not only to defeat Chinese predominance, but also to aid and protect the Indo-Pacific from a world where a unipolar system suggested by the US would not work. This is mainly due to the fact that most countries of the world have undoubtedly become a part of a capitalist system, as stated by the Director of Austrian Institute for European and Security Policy (AIES), Velina Tchakarova.

It is proposed by the guest speaker, that after major events in relation to the annexation of Crimea in 2014 by Russia and the military involvement in eastern Ukraine, a major shift was seen in Russia’s Asian Policies, after which, Moscow

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was then isolated by the west. However, to allow the Russian interest to translate well in favour of the Indo-Pacific, it needs to be diverted from risky interests, like that of China. In this context, the French president engaged Russia in order to stop overlapping geopolitical interests and to forbid Russia from entering into an alliance with China. However, a negative factor is the eastern flank, consisting of the European NATO members who still believe Russia to be a number one security threat.

Formulation of Worthy Strategic Alliances and Russian Risk Assessment In the coming decades, Europe will indefinitely be weakened when it comes to shaping relations with Russia, which can be justified by the claims of the Russian foreign minister, Surgery Lavrov, who stated that the European Union is no longer considered a reliable partner in Russian interests. The US-Russia relationship, however, suggested different diplomatic behaviour. Through this, Russia has now diversified its international portfolio, by shifting majorly towards Asia, with a vision to deepen relations with China and other Asian countries, especially with the Indo-Pacific. A positive factor for the European Union, however, is that the relations between India and the European Union may deepen, in regards to the negotiations which were put on hold in 2013. In this context, if the European Union fails to diversify its international portfolio with a major focus on the Indo-Pacific, other major actors of geopolitics would replace the same.

It must be noted, however, that Russia is not an active player in strategic competition, neither in the Pacific or in the Indian Ocean, especially the South China sea due to the possibility of future disputes between China and its direct neighbours. Moreover, any such newly emerging construct, like that of the IndoPacific is viewed with great suspicion by Russia, especially because of the possibility of the institutionalisation of the QUAD amongst India, US, Japan, and Australia. What lies in Russian interest, is to gain incentives by making alliances with like-minded constructs like that of the Indo-Pacific, where both parties would be gaining some kind of advantage.

With the threat of Chinese predominance and American global power, Russia lies at a state of threat, wanting to counter such issues. Thus, it views the Indo-Pacific as a possibility to expand its Eurasian integration processes, including the ability to enter Asian markets, especially since Russia believes itself to be a Eurasian country. Furthermore, both the parties, i.e., Russia as well as India would be

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gaining strategic interest through their alliance, which assisted Russia in preferring an Indo-Pacific relation rather than an Asia-Pacific relation. Moreover, the strategic format of the Indo-Pacific and India’s relations with other countries in the region would also create incentives for Moscow, which would assist Russia to look away from China. This would not only be a preferrable scenario for India alone, but also for the Indo-Pacific region.

The China Factor The Chinese influence and predominance along with the American unipolar system have majorly brought about the issues pertaining to the above-discussed geopolitical interests. It is clear that through the Regional Comprehensive Economic Partnership, China has gained enough momentum and power to proceed with its interests, however, stands at a cliff due to the presence of counter constructs such as the QUAD, the Indo-Pacific, as well as the involvement of Russia. The China Factor is an extensive and extremely strong competitor, especially considering its Regional Comprehensive Economic Partnership with majority of ASEAN countries, which India decided not to be a part of.

This in turn leads to an overlapping of interests between an array of multilateral platform wanting to gain regional confidence. Thus, there is a strong need for a norm setter, a role which the US has constantly failed to uphold. However, on the other hand, it is in the Russian interest to have ASEAN Centrality, which will discourage further integration with other active players, like that of China. With the Regional Comprehensive Economic Partnership, however, China intends to deepen its relations with majority of the ASEAN countries that it has a partnership with. Thus, the QUAD principle, i.e., ASEAN Centrality, plays a huge role in determining the Chinese vision of dominating the globe, which is why it is an integral part of any analysis.

Conclusion The above-stated literature attempts to discuss a Russian perspective of retaining its Eurasian legacy, while also encountering other geopolitical issues with China and the US being the key players against the battle of dominance and power over the globe. The Indo-Pacific lays down a smooth strategy for all players, which increases geopolitical tensions between the region and the specific countries.

Hence, there is a strong need for a detailed, comprehensive guide to choosing the correct player and the correct strategy, especially in terms of Indian relations. The

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instant report has thus attempted to discuss the major issues revolving around the subject matter. It is noteworthy to state that the coming decade would be a time to look forward to, which will undoubtedly carry a range of opportunities, challenges, as well as the possible fulfilment of respective strategic interests.

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Deciphering Risk Assessment in a Multipolar Geopolitical Order Edited by: Poulomi Chatterjee Contributing Researcher, Global Law Assembly poulomi@globallawassembly.org

Introduction

To understand risk assessment in a multipolar geopolitical order, we must understand the subject matter of a multipolar order itself. It has been illustrated so in geopolitics, that the globe transitions from a bipolar order to a multipolar order due to the several challenges posed by regional forces and other dynamic players. Essentially, it must also be noted that the concept of multipolarity is in line with the systematic design of the globe as it emerges organically. In this context, the Theory of International Politics can be quoted, to establish the absence of a global policeman, i.e., an anarchy, which is impossible to bring in an international system. (Waltz, 1979) Thus, through this, the idea of multipolarity emerges which discourages hegemon.

Since the last 70 years, the US has been the hegemon, while since the last 25 years, a unipolar power has been in favour of the state. However, as has been previously stated, it is not possible for a single dominant force to exist due to the natural phenomenon of multipolarity. It is important to understand while studying the concept of multipolarity in geopolitics, that it is hard to fathom a world where all powers are equal, and everyone is in harmony. This can be proven by establishing the fact that the relative power of the US has been declining due to a range of security threats it has had to carry throughout the years. Hence, the instant report has attempted to address the issues of multipolarity in context of various faces of the most dominant players in the globe.

Red Lines in Defence of Taiwan

Considering political and diplomatic interests of dominant key players in the geopolitical surface, there is a united interest against the predominance of China,

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which signals us towards the idea of considering the involvement of trade-offs in foreign policy. An essential ingredient to the understanding of risk assessment in geopolitics has been paved by the three questions that the guest speaker, Dr. S. Maitra, namely mentioned as, (Maitra, 2021) 1.

2.

3.

What should one categorically do to defend Taiwan after a seaborne invasion starts, and missiles start flying?

How many Americans are we willing to sacrifice in defense of Taiwan, even at the cost of a great power war with a nuclear rival?

If China successfully invades Taiwan, are American, Japanese, and Australian soldiers willing to sacrifice innumerably more men to liberate Taiwan and restore the current status quo ante?

In this context, Dr. Maitra discussed that even if Taiwan falls, it is inevitable for economic damage to occur, but it is not possible for the balance of power of the region to change from a mere invasion by the Chinese. Moreover, even if such circumstances come to rise, it will only give rise to a formalised status quo to QUAD to become a military power like the NATO. Thus, the fall of Taiwan would rather be an influence on a greater balancing posture, while also balancing China in the Indo-Pacific.

Furthermore, it should also be noted that even if American troops are sent to defend Taiwan, it is imperative to note that a province with a population of approximately 24 million cannot be invaded easily. Moreover, the strategies adopted by the Taiwanese does not help its pickle with China, since no matter how many weapons and troops they count on, they will not be able to defeat China, i.e., a nuclear rival. Instead, it has been proposed for Taiwan to focus on a counter China strategy, by allowing the invasion of their borders and bleeding them out on insurgency.

Improving the Indian Strategy In the Indian interest, QUAD cannot become a military alliance, especially concerning the instant Chinese threat. This is because of the incompatibility of treating India as a secured power and the systems of interoperability. To understand the context in deep, the advantage of a natural maritime power that exists with India must be understood. It has been briefly elaborated by the guest speaker that although India is protected with natural barriers on all of its sides, it fails to recognise the immense military power it holds, especially in regards to the

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Indian Navy. It has been observed that the majority of finances allocated to the defence circles is sent to the Indian Army, rather than the Navy.

Moreover, the absence of a Military Industrial Complex like that of Britain or the US speaks volumes about the under confidence of India in the defence sector, which has led to the country having to buy weapons from foreign suppliers despite 75 years of independence, even after having all the three necessary ingredients of formulating a strategy to become the leader of defence. These ingredients can be further defined in terms of Indian Institute of Technology (IITs), government funding, and companies willing to implement designs and strategies in relation to establishing a stronger defence for the country, like that of Tata and Mahindra. In this context, the same idea has been pursued in many foreign practices including the US, where the government funds universities like that of the Indian Institute of Technology (IITs) in case of India to further formulate appropriate designs and strategies which can then be implemented by companies like Tata and Mahindra.

Thus, it can be concluded that India as a power has enough ability to achieve a secured power which can further defend itself by itself, while also being able to afford to have equidistance from all major power centres, which would in turn encourage the formation of the country’s own military industry complex and a solid internal market. However, for the same to take place, it is imperative for India to implement appropriate strategies by understanding the strategies used by other developed countries which were once developing as well.

Conclusion Through a thorough understanding of the report, it can be deduced that the existence of a naturally multipolar order which is in line with the essence of the globe, no power is free from their share of busts. Furthermore, in the history of time, the transition of one great power to the decline of the same to the rise of another great power has been witnessed, for example, in relation to Russia being the strongest power in the Cold War, after which the reigns were taken by the rising US. Thus, by critically analysing the strategies being followed by several regional powers, the same conclusion can be drawn into.

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References Kenneth Waltz, Theory of International Politics, Addison-Wesley. Berkeley: University of California, (1979).

Dr. S. Maitra, America Needs An Honest Debate About Red Lines In Defense Of Taiwan. [online]. 2021. [Accessed on 27 th August 2021]. Available From: https://thefederalist.com/2021/05/10/america-needs-an-honest-debate-aboutred-lines-in-defense-of-taiwan/.

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Decoding Various IndoPacific Strategies Edited by: Poulomi Chatterjee Contributing Researcher, Global Law Assembly poulomi@globallawassembly.org

Introduction

Although India has always been in touch with the concept of Indo-Pacific, it has only recently come into light as a relatively new concept in the 21 st century. It has been often reported that the coming decades will entirely be based on the idea of an Indo-Pacific decade, which is why it is necessary for understanding the importance of the same.

In an American point of view of strategic thinking, the concept of India-Pacific has replaced the concept of Asia-Pacific due to the Chinese threat of predominance. When the US realized the issue, it started considering the concept of Indo-Pacific more seriously than Asia-Pacific, while considering India as an important asset to the US as a counterweight to the rising China. It must be understood, however, that the Indo-Pacific in its true essence is not a concept which has emerged solely in order to outweigh Chinese predominance, but in order to make better the situations of the Indo-Pacific region itself. China, however, thinks the transition from Asia-Pacific to Indo-Pacific is directly aimed towards it, which is why it does not encourage the concept of Indo-Pacific.

In the instant report, the different strategies adopted in favour of the Indo-Pacific by various countries involved with the region will be decoded, while also throwing light on the literature regarding QUAD as a possible strategy of the Indo-Pacific.

Viewing Indo-Pacific from the Lens of Major Involved Players For the US, India is majorly an afterthought, through which it can treat the state as a leverage to counterweigh Chinese predominance. However, if not in context

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of China, the US would not have given a second thought to the Indo-Pacific, as can be claimed from previous instances. For example, the US had airlifted supplies to India in 1962, since it was fighting China, but then also airlifted supplies to Pakistan only a few years later. A contradicting thought towards this, however, is that the interest of halting Chinese expansion is common to both India and the US. Thus, from an American point of view of strategic thinking, it does not need to convince India for treating it like an instrument to defeat Chinese interests, but rather acts as an ally or a supportive friend fighting for the same objective.

In furtherance to this, India is also seen as a potential economic alternative to China, according to Australia. In this context, Australia’s Indo-Pacific strategy sees two markets, i.e., the China Market and the Australia Market, where Australia would in its interest like to see a bigger share of exports going to the Indian market in order to reduce its reliance in the Chinese market. Similarly, for Japan, India is considered as a potential ally to counter China.

Japan, however, unlike the US, is more committed towards the concept of the Indo-Pacific, since it has a history of long-term commitment towards Asia, while also being an Asian country itself. This in turn translates into the common interest of the US, Australia, and India to defeat Chinese dominance. In terms of the Indian view, it is happy for getting recognition in the American and western strategic calculations, in a way that it hasn’t before, which makes the Indo-Pacific region the most important strategy for countering majority of geopolitical issues and regional complexities.

Translating the Lens of EU EU, being another big player who is in line with the Indo-Pacific ambitions, has complicated thoughts about the concept in general. Moreover, it must also be noted, however, that these thoughts are rather mixed, since the EU does not speak in a single voice, especially in matters of foreign policy. In this context, for Germany, it is still in the view of viewing the world with a first view towards China, no matter how worse the tangles deepen in the region. Moreover, Germany considers the whole of Asia to be China, rather than a group of separate individual countries. Thus, the concept of Indo-Pacific is difficult to be translated in terms of Germany, if it has no recognition for any other country in the region other than China.

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The Indo-Pacific as a concept, for France, however, translates extremely smoothly. Although France is not the biggest economic power in the EU, it is the biggest military power. Thus, since France is deeply involved with India in terms of its nuclear industry, it views the Indo-Pacific from an India first perspective, while not recognizing China as a part of the same. Furthermore, since France is a state driven economy, it expects itself to involve in big development projects, which translates well in terms of connecting with India for the purpose.

Furthermore, as opposed to the US, it also has a long-term commitment towards such developmental roles, majorly since it does not politicize its relationships.

QUAD: An Asian NATO The QUAD has recently emerged as the most important tool of implementing strategies in favor of the Indo-Pacific region, especially to defeat Chinese predominance, the issue being of common interest to all the four member states of the informal alliance, i.e., India, Japan, US, and Australia. It had been infamously pointed out by the Chinese, after witnessing the formation of the QUAD, that the alliance is merely an Asian version of NATO, which should be looked down upon.

However, as established humbly by the guest speaker, the NATO has changed drastically from its role in the 1950s to the 1960s, from a provoked defense organization to a peaceful organization working towards capacity building, interoperability, and democracy promotion. Moreover, it is interestingly observed that amongst many other missions of the NATO, it particularly has a mission to promote the role of women in military, which also encourages support from other countries.

Thus, considering the QUAD is also built along the same lines of keeping the Indo-Pacific region free and open, i.e., in line with the FOIP strategy proposed by the US and Japan in 2016, it has the characteristics of a modern NATO, which does not translate into a wrinkled nose from discontent by China. Thus, in view of the guest speaker, the QUAD can very well be referred to the Asian version of NATO, which supports a self-reliant Indo-Pacific, and one which majorly does not single out Chinese predominance.

Conclusion

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The Indo-Pacific as a concept has recently been recognized after the US recognized the threats posed by China, after which the concept became the most important strategy for majority of the countries facing regional complexities in an imperfect multipolar world, which successfully translates into only one language: an Indo-Pacific decade, not ashamed of major developments.

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A War of Empires: Japan, India, Burma and Britain (1941-45) Edited by: Poulomi Chatterjee Contributing Researcher, Global Law Assembly poulomi@globallawassembly.org

Introduction A War of Empires is a book written by the guest speaker, Dr, Robert Lyman, who conveyed a unique perspective in terms of a traditional military history, towards the second world war, especially in context of Asia. Lyman was inspired by the Indian spirit of fighting for its own land, i.e., Bharat, during 1944-47 when the INA had formed, not in favour of the British Raj, but in order to fight for their own land. Moreover, what makes the inspiration towards writing the book stronger, is the very fact that the Indian Army was successful in its deliberate attempt of forming INA and fighting for its land, in the war against Japan.

An astonishing fact in this context, is the realisation that the INA consisted of approximately 300 men and women from across the nation, who had voluntarily agreed to come together for specifically defending India and not the British Raj, which translates more than a mere binary view of India. In a nutshell, it was acknowledged by the speaker that if it was not for the effort of the INA during the second world war, i.e., the pre-partition India, Britain would not have been able to mark success on its footprints of defeating the Japanese.

Path to Recognition of Indian Integrity A common misconception surrounded amongst the pre-partition India is the notion that Indians were mere puppets on a string for the British Raj and that

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India remained static under the British Raj. A truer scenario, however, was the fact that the British Raj was in fact trying to help India attain more development.

One factor which worried the British Raj was the realisation of threats to the Indian security, since India, as a united country in the British Raj, was not able to protect its own territory, which is when the Raj stepped in to assist the country.

Because of the colonial diaspora, however, at that time, the British did not do a great job at the task, which led to a number of Indians following the British rupee, and travelling to Malaya, Singapore, and Burma. This created an ink stain effect of Indian immigration, which increases security issues.

During this time, the Indo-Pacific region and the Indian interests started extending into a wider Asia. When Britain left India, the state was still not mature enough to understand its own identity, which however, was not the case after some benchmarks of realisation, worth to be discussed in the instant report. In a nutshell, it was observed that India, over the years of finally attaining independence, gained its own military identity which developed tremendously over the years, even after Britain left. One of the turning points towards this realisation was the Battle of Kohima and Battle of Imphal against the Japanese during the second world war in 1944. It is imperative to note that both these battles were fundamentally important to the security and defence of India.

This is because at this point, the invincible Japanese Army psyche was broken down, when the Indian Army managed to defeat the 15 th formed-up, infantry based Japanese Army, which was notably weak in armour, weaken up to an artillery, and had weakened air power. The Japanese Army during this time period was known to be invincible and referred to as the ‘Sword of the Emperor’ in this context. Moreover, it is noteworthy to also mention that the Japanese was not only defeated by the British power, but by an allied army made up predominantly of Indian army.

The point where India realised its true nature of Indian democracy, was in 1962, during the Indo-Sino war, which is considered to be the second turning point in the path of recognition to Indian integrity, since at this time, India successfully learned to manage its defence, strategic, and security issues in a manner mature enough to stun the colonial power which was in reign before.

INA: The True Essence of India

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The INA was not successful in its mission but left a deep footprint of the true essence of India, which is still recognized today. This is because the Indian soldiers who took part in this army did not fight for a British war, was not considered as a British Army, but was led by British officers who in fact considered themselves as Indian. Furthermore, it is noteworthy to note in this context, that the actual utility of the Indian Army in 1944 was majorly different than to what it was expected of the Indian Army to perform in the 1939 and 1940, i.e., the Indian Army turned out to be a completely different animal than it was actually designed to achieve in 1939 and 1940. This is mainly due to the success of the Indian Army for defeating the Japanese Army in 1944, and the amount of achievement it unbelievably countered in the battlefield of 1944.

The INA was formed under the guidance of the honourable Subhash Chandra Bose, who encouraged the formation of a true Indian Army who do not aim to fight under the British orders, but rather fight for the Indian land and for the Indian identity. In this context, the INA was formed from the former soldiers of Indian Army who had been taken as prisoners in the regions of Malaya and Burma during 1942 and were then persuaded to join the Japanese Army as an ally to Indian national, against the colonial power posed by the British. However, what Indian Army consisting of the INA failed to realise at that time, was the harsh truth that the INA was a tool for the Japanese strategy from the start and throughout the end.

A hard realisation of Indian integrity traced its first footsteps when it realised that the Japanese was fighting for a recognition of Asia for the Asiatics, i.e., an Asia for the Japanese, rather than helping India to free itself from colonial power. After this realisation, when India agreed by itself that it did not wish to exit one colonial force and enter another colonial force, it decided to fight against the invincible Japanese Army and won for the Indian identity of an Indian land, by successfully preventing the Japanese from pursuing their strategy of executing Operation U Go Offensive (also referred to as Operation U-Go or Operation C).

Conclusion A War of Empires is a book written by the guest speaker, Dr. Robert Lyman, which is the recollection of a traditional historical war with an inspirational highlight on the true essence of India and its democratic values of protecting its integrity and territory. The book has carved out various aspects of the history

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which were not on the surface before, which makes the study of the strategies adopted by the nations at war all the more interesting to read about.

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The Good Country Equation Edited by: Poulomi Chatterjee Contributing Researcher, Global Law Assembly poulomi@globallawassembly.org

Introduction

The instant report discusses the ideas and inspirations of Mr. Simon Anholt, the author of The Good Country Equation, which vastly discussed a concrete formula for fixing a large number of issues and challenges being faced by the world in such complex times. According to The Good Country Equation, the best recipe for a healthy society is one which essentially satisfies the four basic human appetites, i.e., intellectual appetite, cultural appetite, animal appetite, and spiritual appetite.

Anholt elaborated that the current world has two wrong approaches to addressing instant challenges. These are, namely, the way countries behave, i.e., the culture of governance, and the way people behave. In this context, countries often fail to address global issues swiftly and efficiently mainly because they fail to collaborate and cooperate enough with other countries. The main idea that the Good Country Equation displays is the recommendation for all countries to come together and discuss plausible solutions as a team, rather than competing.

Moreover, the speaker highlights that competitive behaviour is in fact encouraged if it stimulates growth but is a problem in itself when it is the only game in town.

Thus, the culture of collaboration between countries becomes necessary in order to overcome global issues like that of the pandemic, climate change, nuclear

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proliferation, or poverty. Furthermore, the way people behave depends upon the upbringing and values one is taught whilst growing up. Thus, if a sort of global agreement on the necessary fundamental values, virtues, and skillsets that all citizens should be equipped with is formulated and distributed, it would become relatively easier to survive and prosper in the current world.

The Problem Statement It is a common notion of countries on global platforms, that whenever they come about to discuss global issues and collaborate on plausible solutions, most intergovernmental bodies claim the existence of a binary conflict rather than a global issue. Furthermore, it has often been observed by scholars including that of the guest speaker, Mr. Simon Anholt, that the world operates in fixed, rigid, and selfish ideas, such as the unsaid principle of placing domestic responsibilities before international responsibilities.

This attitude not only brings tension between doing right for a country’s own people and doing right for other people not belonging to one’s own country, but also poses selfish interests of refusing to help one in need. In this context, principles like America First does not translate into the principle of placing everyone else at the end of the list. Thus, highlighting the problem statement, The Good Country Equation is based on an idea to be able to find a way to harmonize the responsibilities of both the domestic and international nature. This is in line with the fact that it has been often observed that better policies are devised if the same is done with an international mindset.

In relation to Indo-European relations, with regards to India’s keenness on addressing third world issues like climate change, and the EU being reluctant with the same, it must be noted that India can perform such strategic thinking largely because it is a single state, as compared to the EU; a group of countries which does not function in a single voice. EU, however, is in a remarkably outstanding position since it functions 26 countries at the same time, while also making impactful but small changes as a collated effort of all. This essentially brings out the culture of collaboration flawlessly.

Hence, through the above discussion, it is clear that there is a need for a more entrepreneurial form of multilateralism with a comparatively leaner, agile, and versatile form, where all countries come together to identify global challenges and voluntarily work together to address the same, in order to give birth to the culture of collaboration.

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Establishing Monarchy 2.0 A context which is necessary to study is regarding the modern idea of monarchy which can be used in favour of global relations to strengthen foreign policy decisions while also being able to inhabit the culture of collaboration and cooperation. However, the idea behind a traditional monarchy stems from an idea of ‘inherited power’ which does not always translate into the surety of receiving heirs who may be just as good as the previous throne holders. In this context, the speaker has elaborated the need to have a persuasive method of empire rather than an empire achieved by cohesive means. American empire is the best example of a persuasive empire, made up more from a soft power perspective (Nye, 2015).

However, the most discussed issue of geopolitics in the current turn of history is the question regarding whether the western style of democracy is the best the world can achieve, which even hints towards the possible decline of the American empire. In this sense, it is a positive factor that complacency between states has reduced tremendously, which signifies the potential of growth in other regions.

In relation to deriving a good equation which an ideal world could follow, is the concept of Monarchy 2.0, which recognizes the modern and positive factors of the concept, rather than labelling it as a family business of the richest in town. In this context, a positive factor in monarchy which ignites a long-term interest in a country, is the factor of not worrying about having to get re-elected every term, and instead focussing on pertaining issues and their solutions. Furthermore, Monarchy 2.0 suggests the method of availing a global governance think tank by purely thinking about the major international problems the globe is suffering, without showing any special favour to one’s own country. Thus, Monarchy 2.0 does not suggest the invention of a new system of governance, but rather promotes the idea of principle of collaboration and cooperation.

Conclusion The Good Country Equation is one of the few books which addresses a unique solution of coming together on one global platform and discuss global issues without any sense of wanting to be better than anyone else in any chair. The book essentially highlights the negative notion of having to be the first one to finish the

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sprint to achieving the most development and prosperity. Rather, The Good Country Equation promotes the idea of the principle of collaboration and cooperation with other countries and striving to take the whole globe towards development and prosperity, rather than a single nation.

References Joseph S. Nye, Is the American Century Over? America: Wiley, 2015. ISBN: 9780745690100.