Post Colonial Case for Rethinking Borders

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COVID19 has implications for global movement of people, goods and capital. International migration came to a standstill with many countries imposing travel bans and other border restrictions. While, most migration pathways are expected to open after we mitigate some of the dangers posed by the virus, it is not unreasonable to envisage that some political leaders will use the current migration restrictions as an opportunity to reinforce broader, longer-term agendas built around xenophobia and the “othering” of migrants. To understand the dehumanisation of these migrant subjects we must situate it within the context of colonialism, manifested in current power asymmetries between and within different world regions in the Global North and South. These patterns define culture, labour, intersubjective relations and knowledge production, well beyond the formal ending of colonial rule. In this post, I will consider the racialised dehumanisation of economic migrants who migrate from the Global North to the Global South in light of COVID19, and their possible emancipation.

To be clear, when I use the term migrant I refer only to the economic migrant as opposed to a refugee, or an asylum seeker. The term ‘economic migrant’ has no legal definition. It is not mentioned in any international instruments of migration law.  However, the IOM defines “economic migrant” as “A person  leaving his/her habitual place of residence to settle outside his/her country of origin in order to improve his/her quality of life.” For the purposes of this article, this term  includes those who do so without legal authorization from the countries they seek to enter. The term “Global South”  is a geopolitical and ideological category, and in this post, the term refers to the territories and peoples that Europeans colonized primarily between the mid-eighteenth and twentieth centuries. The corresponding category of “Global North” refers to the metropolitan European colonial powers and to those settler colonies that preserved their European identities even after gaining independence. Further, this post does not cover migrants within their own countries who have also been affected by the ‘lockdown’ of cities.

The distinction between economic migrants and refugees is useful only because international law itself reinforces it and provide access to rights and services based on it but I am cognisant of the fact that such a distinction can also reinforce strict lines between ‘good’ and ‘bad’ immigrants. It obscures the view of migrants as ordinary people and instead portrays migrants as either bad, or as the exemplary citizen. Unlike refugees who are protected under the 1951 Refugee Convention and the customary law norm of the principle is non-refoulement, it is largely recognised in international law that it is the prerogative of the sovereign state to exclude economic migrants.  International law justifies this through its normative commitment to sovereignty which, at its core, about the capacity and right to self-determine collectively on grounds established by citizens, making limited exceptions for the admission and gradual inclusion of non-citizens who are otherwise at risk of persecution or extreme human rights violations. However,  the control OECD states have over their borders far surpasses that of their Global South counterparts as is evident from multilateral and bilateral visa agreements that privilege rights of the former over the latter.

Further, this approach to international law is much newer than you’d think. During the period of conquest and expansion of the Global North, international law supported expansionary rights of colonisers. Chantal Thomas notesMeasured either as a percentage of the total population, or in terms of economic significance, the impact of the earlier wave of [colonial and New World] immigration was much greater than the [contemporary] one.” Back then, it seems, changing countries for economic reasons was a perfectly valid thing to do. In the time of global primitive accumulation, migration was accepted. When formal decolonization of the Global South eventually gained ground as a legal and political project, it was largely framed as the pursuit of political equality for colonized peoples through the achievement of independence of the “state”. Although international law facilitated formal independence for many political communities, for former colonies nation-statehood hardly did enough to disrupt relations of colonial exploitation.  International institutions and international legal doctrine still preserve the colonial advantage secured by Global North. What this implies is that Global South peoples are not political strangers to the Global North. In fact, neocolonial and other forms of imperial “interconnection” makes them bound in a relationship of co-sovereignty.

Now, economic migration exists because of fairly extreme socioeconomic conditions arising from globalized political economic structures due to which there are not enough opportunities for safety and prosperity at home and too few regular means through which to remedy that lack of opportunities.  Even before COVID19 this resulted in economic migrants from the Global South being recruited through unfair channels, working in unsafe environments and still being underpaid and overworked. Now, COVID-19 will probably not stop all international migration since cheap labour is critical to the neoliberal project but it does mean that there are fewer regular means for migration than there were a couple months ago. Further,  as the World Bank itself has noted, migrant remittances provide an economic lifeline to poor households in many countries; a reduction in remittance flows could increase poverty and reduce households’ access to much‐needed health services. This structure of codependence can be easily exploited to the detriment of economic migrants. Female migrants may still face stronger discrimination, and are more vulnerable to mistreatment compared to male migrants.

But this does not mean that all economic migrants will be affected equally. OECD states have long competed against each other to attract “valued forms of capital”. In the neoliberal political economy of belonging, inclusion and exclusion are increasingly becoming a function of an individual’s, or a group’s, capacity to contribute to the country’s financial viability, economic competitiveness, international reputation, moral standing and self-understanding, and emotional well-being. Hence, “highly skilled” migrants such as academics, doctors, lawyers who contribute to the international competitiveness of the state are less likely to face discrimination compared to a construction worker.

Bearing all this in mind, a strong case can be made for rethinking the starting point of migration law research especially pertaining to policy towards migrants who have crossed the border without authorization. We must reconsider what sovereignty means for us today. This is more complicated than what it seems. For one, Global South, at the apex of the decolonization movement, actually argued for a strong interpretation of sovereignty, one that would lead to effective economic rather than merely nominal political independence, and would entail the right to nullify international contracts in order to reclaim natural resources.  However, this is now interpreted by the Global North to have stricter border control. We must recognise not only the moral but the distributive justice obligation to redress and reduce the brutality of draconian border policing.

International Law and Development V: Covid19 and whether we should be looking for alternatives?

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The disruptions caused by COVID, such as lockdowns, export bans and the global supply chains for medicines and other restrictions being under severe strain, has sharpened the debate on the alternatives to development by questioning whether free trade, and modernisation is beneficial for all evidenced by the deficiencies of current welfare nets and growing inequality since we can see how the impact of the pandemic differs greatly along the lines of wealth, poverty, gender and race. Further, the trickle down theory of economics seems even more tenuous now. Moreover, the structures of exploitation make the Global South so much more vulnerable to a public health crisis. India’s public hospitals and clinics will not be able to cope with a crisis even to the extent that Europe and the US has. Despite this, until April 2020, India had been exporting protective gear and respiratory equipment, instead of keeping it for Indian health workers and hospitals. Further, certain communities and regions in India have seen a food shortage as a result of the pandemic. Instinctively, most scholars explain this as a domestic, technical problem – how India hasn’t diversified its economy or that the Indian administration is poor. However, such an understanding ignores how international institutions like the World Bank and the IMF, which provide aid on seemingly technical grounds, have ensured that India remains committed to a development model that prioritizes attracting private corporations with promises of tax relief while neglecting to invest heavily in public institutions and how there are distorted practices in the international system that enable agro-businesses to exploit the system.

This article will take seriously the notion that the particular developmentalism generated by the Global North has detrimental impacts on the Global South and then, it will evaluate alternates to “development” in the context of COVID19.

In his book White Man’s Burden, Easterly, a Professor of Economics at New York University and former economist at the World Bank, argued practically none of the fashionable, and typically aid‐​funded, fixes to the problem of underdevelopment—investment in infrastructure, education, industrial policies—had produced desired outcomes because development was a result of the institutions embedding markets and political processes. He writes that ““When you are in a hole, the top priority is to stop digging.  Discard your patronizing confidence that you know how to solve other people’s problems better than they do.  Don’t try to fix governments or societies.  Don’t invade other countries, or send arms to one of the brutal armies in a civil war.  End conditionality.  Stop wasting time with summits and frameworks.  Give up on sweeping and naïve institutional reform schemes.  The aim should be to make individuals better off, not to transform governments or societies.” (White Man’s Burden, p. 322)

Easterly makes a distinction between ‘planners’ and ‘searchers’.   His recognition of the complexity and diversity of the problems (and likely solutions) underlies his suspicion of top down, one fits all solutions and is reflected in his preference for the latter, who he identifies with ‘home grown solutions’. It is the searchers, in his view, who will have the best access to ‘knowledge of local conditions, experimental results from interventions, and some way to get feedback from the poor.’

Notably, Easterly accepts economic growth and free markets as necessary to development. In fact, in a recent Boston Review piece he defends neoliberalism from its critics. Therefore is not as radical as the other alternatives I will discuss here, such as Gustavo Esteva’s work. Esteva is a Mexican activist, “deprofessionalized intellectual” and founder of the Universidad de la Tierra in the Mexican city of Oaxaca. His work is similar to Easterly’s to the extent that Esteva also contends that the “global village” has been transformed from a metaphor to a fact and this leads us to arrogantly assume that we can manage things from a global level. Further, Esteva also argues that the idea of the individual was the Trojan Horse by which Western nations infused their ideology of development into traditional, communitarian ways of being.

It is true that the IMF recently provided debt relief to 25 low income countries to enable them to channel more of their resources towards healthcare, furthermore the G20 offered a debt standstill to 76 low income states.  These measures are temporary and hardly enough when making people richer by promoting economic growth has been the assumption at the centre of international aid and philanthropy since it began. This assumption rests on Rostow’s take- off theory from the early sixties according to which every country should follow the great path of evolution of first world countries and “grow” toward a society of mass-consumption and productivism, what we would call a “growth society”.

The FAQs section on the WTO website has a question that asks whether WTO members can impose trade restrictions due to COVID19. In response, the WTO notes: ” each WTO member is free to determine what is necessary to protect its citizens and take the measures it deems appropriate. In general, WTO rules provide broad space for members to adopt trade measures deemed necessary to protect public health and public welfare (including import and export bans, quantitative restrictions on imports and exports, and non-automatic import licensing). ” What this implies is that the rules which were held so dearly by international law can be broken when they need to be broken. This begs the question of whether they were the right rules in the first place. As the prominent French philosopher Bruno Latour tweeted: “Next time, when ecologists are ridiculed because ‘the economy cannot be slowed down’, they should remember that it can grind to a halt in a matter of weeks worldwide when it is urgent enough.” Thus, the pandemic has made it apparent that not even the much richer societies of the Global North can fully enjoy their rights optimally without respecting the rights of their minority communities.

This requires us to inspect why the same states which benefited from international economic system in 1970s are still benefiting from it now? Of course, we also have to grapple with the fact that international law is not just dealing with state behaviour but corporations that often have a bigger value than a state’s GDP. Often, corporate behaviour is justified in the name of “development” and their actions are represented as being in the interests of those whose resources they exploit. Any response to this must take seriously critical scholar’s insistence on the continued presence of history in the making of international norms. Most importantly, the current crisis has opened the possibility for degrowth, discussed with such merriment as impossible just a few years ago. Degrowth, as the name suggests, is movement that dismantles the goal of limitless economic growth as being compatible with a finite planet. This means abandoning extractivism in the Global South and the increasing commercialisation of societal fabric and nature. Further, under a degrowth economy, local communities will be encouraged to address their own problems to the extent they can. This is because it allows people to hold political bodies accountable in a way that is politically and institutionally easier than say holding the WTO responsible.Thus, the challenge for degrowth activists is to work out an intentional policy of economic slowdown that ensures the well being of populations and fair distribution of resources.

Audio of Session on Critical Perspectives to IL

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This is the audio of the session on Critical Perspectives to International Law that Sagnik Das, Assistant Prof at Jindal Global Law School, and I, Shubhangi Agarwalla, took via Zoom. 

The Classical Understanding of International Law has had the unintended consequence of legitimising an expanding domain of international intervention into the Third World. Interesting, neither Sagnik nor I, both Indian students who completed our undergraduate law degrees from India, were introduced to Critical scholarship that challenges these interventions during our time at law school in India. Instead, he was introduced to it at Harvard during his Masters whereas I got introduced to it at the Max Planck Institute of International Law during an internship.

Hence, the session is partly in response to the inadequate attention that critical scholarship gets in Indian law schools. We were surprised to see the large turnout of people who chose to attend the session and found the engagement to be very rewarding.

The four texts that we asked everyone to read before joining us were:

1. Baxi’s Remarks on Eurocentricism.

2. Antony Anghie’s Introduction to his book Imperialism, Sovereignty and the Making of International Law.

3. Sundhya Pahuja’s Letters from Bandung. 

4. Joseph Slaughter’s Hijacking Human Rights. 

I would suggest reading them before listening to the audio. 

Guest Post: Time to revisit “Loss and Damage” under International Climate Change Law?

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– Parimal Kashyap.

Although the world has been occupied by the impact of COVID, there is another pressing problem that begs our attention. The second week of April saw a Category-5 cyclone drift past low-lying Pacific islands of Solomon, Vanuatu, Fiji and Tonga causing damage amounting to $123.5 million and loss of at least 30 human lives.

Although natural disasters have serious repercussions for any state, they bring severer consequences for inhabitants of these densely populated, ‘small’, isolated and low-lying islands. A report of IPCC noted that such island states may incur losses of multiples of their GDP from natural disasters. For instance, St. Lucia, lost around four times of its GDP in 1998 from Hurricane Gilbert, and Granada lost twice its GDP in 2004 from Hurricane Ivan. Due to their geographical and economic vulnerability, these island states are also ill-placed to recover from natural disasters, and it often takes years (or sometimes, decades) to recover.

Although tropical cyclones are not uncommon for these island states, owing to the climate change and rising sea levels, there has been a steep surge in their frequency and intensity. Given that there is little doubt that the loss suffered by these island states is a consequence of climate change, which, in turn, is a product of the conduct of other states, these island states have long argued for a treaty-based reparation policy.

Before I address this issue, it may be desirable to understand the context in which these island states have operated within the international framework. Termed as ‘Small Island Developing States’ (‘SIDS’) by the UN, these island states have been universally (albeit reductively) characterized as vulnerable and weak. For the majority of their existence, SIDS have been seen by global powers as a means to serve their economic and strategic interests. While in the colonial era, occupation and control over such islands was crucial for the imperial states, SIDS continued to be tied to patron-client relationships during the Cold War period for political reasons. The end of the Cold War greatly diminished SIDS’ ability to bargain for aid and investment from the established powers. At the same time, the emergence of tourism as a major source of revenue and establishment of a systematic multilateral trading system strengthened inter-state relationships between SIDS. This period also presented newer and bigger challenges in the form of climate change and global warming. SIDS sought to overcome their ‘smallness’ at international negotiations by establishing an association in the form of Alliance of Small Island States (‘AOSIS’). Since the early 1990s, concerted efforts by SIDS in raising concerns about rising sea levels have fortified their identity as the ‘front-runners’ in international climate change negotiations. In the past 30 years, SIDS have managed to get states to establish climate change funds and move closer towards creating a binding setup within the international environmental framework. However, one of their important (and controversial) proposals during the UNFCCC negotiations— addressing loss and damage (‘L&D’) to the most vulnerable countries from human-induced climate change, has been largely neglected and remains in the embryonic phase.

In their proposal, AOSIS had suggested a creation of a collective insurance-cum-compensatory scheme on the pattern of ‘1963 Brussels Supplementary Convention on Third Party Liability in the field of Nuclear Energy’ with the contributions equally based on parties’ relative emissions and their relative share in global gross national product. AOSIS had envisaged L&D as the third pillar (apart from ‘adaptation’ and ‘mitigation’) of climate change action. The proposal was rejected but the parties settled to agreeing ‘insurance’ as a means to meet specific needs and concerns of developing states (See Article 4.8 of the UNFCCC). More notably, the parties also agreed that developed countries ‘shall’ assist vulnerable states in ‘meeting costs of adaptation’ to the adverse effects of climate change. (See Article 4.4 of the UNFCCC and Article 9 of the Paris Agreement). These provisions were in addition to the general principle of ‘Common But Differentiated Responsibilities’ (CDBR) embedded in UNFCCC.

After regular demands from AOSIS which encompassed 20 odd years from the initial proposal, parties, by Decision 2/CP.19, finally agreed ‘to establish an international mechanism to address loss and damage associated with impacts of climate change’. The decision was finally realized with the establishment of the Warsaw International Mechanism (‘WIM’) during COP19. Subsequently, ‘loss and damage’ was also afforded place under the Paris Agreement. Although these developments are encouraging for SIDS, the details suggest that the conceptualization of L&D may not be heading into the direction SIDS had initially envisaged.

Firstly, developed states have shown continuous reluctance to allow L&D to create any financial liability (See Durban and Doha negotiations). The United States’ position against the inclusion of legal remedies within the Paris Agreement forced AOSIS to compromise with their initial conception of L&D. On the other hand, the EU’s 2018 proposal reduced L&D to a post-disaster response. It linked L&D with already existing environmental funds and expressly stated that L&D was linked to efforts at mitigation and adaptation. Hence, while WIM did recognize compensation/rehabilitation as a part of L&D, it has primarily focused on the mobilization of resources. As a consequence, the decision adopted by the parties at COP25 also has focused mostly on capacity-building and technological cooperation, and like voluntary arrangements within the UNFCC, the references to financial obligations are non-specific and non-committal. Clearly, putting L&D in the same category as already existing funds substantially weakens L&D by considering it as a privilege as opposed to a right of the vulnerable states. Despite this, interpretative declarations made to the Paris Agreement and regular emphasis on compensation at COPs indicate that SIDS are not ready to compromise the compensatory aspect of L&D in toto.  

Due to their consensus-based model, climate change conferences have been infamous for theirzero-sum negotiationswhere the will of financially powerful states has generally dictated the implementation of the adopted measures. Although due to several reasons, negotiations in the recent past have become more democratic and transparent, financial measures are still largely driven by the notions envisaged by the developed states. Even assuming that the developed states approve the compensatory aspect of L&D, it is quite likely that the particulars of such scheme and its implementation will be dictated by them. Lessons from existing environmental funds reveal that donor-driven implementations can often be unsympathetic to the concerns of beneficiaries. For example, Global Environmental Facility (‘GEF’) which was established to assist developing states in fulfilling their objectives of mitigating climate change, has often funded projects that have adversely affected indigenous people. Poor implementation of GEF is reflected in a confidential internal memo of the World Bank which revealed that such projects had caused the relocation of almost two million people in the developing countries.

In the current schema of things, the traditional hegemonic powers are gradually declining and developing states (including BASIC and G77) are more vocal at the negotiations than ever before. As predicted, the power shift has also affected climate finance. For instance, since 2014, the United States— the largest donor to the Global Climate Fund, has withdrawn two-third of its promised contribution. Similarly, other donor states are hesitating in increasing their contributions. Further, the COVID-19 crisis is bound to affect climate financing in general. At the same time, the latest figures reveal that developing states may be responsible for almost two-thirds of total carbon emissions. Quite predictably, China, India and Russia, alone account for around 40% of the total emissions. In these circumstances, the allocation of potential share contributions in the L&D may be more controversial than expected. International environmental lawmaking has suffered from the indecision and lack of specifications and unfortunately for SIDS, the current position suggests that   L&D may be following a similar trajectory.

So far, developing states have actively supported L&D. At COP11 and COP13, Bangladesh advocated for compensation for damages arising out of climate change. The African Group, in particular, pressed for compensation to address unavoidable damages during COP18. Later, G77 and China also pushed for the adoption of WIM and emphasized its importance to the Paris Agreement. Commentators note that during early days, developing states approached climate change negotiations with much distrust as they saw those negotiations as an attack on their newly achieved sovereignty. However, it may not be incorrect to assert that developing states have, to an extent, benefited from the compromise, and a part of it must be credited to the consistent efforts of the SIDS. Perhaps, it is the time that the most well-placed states of the developing world take center-stage in furthering the discourse on the financial aspects of L&D. It must be recalled that L&D was introduced under the UNFCCC framework which does obligate all the states to contribute according to their capabilities.  It can be argued that neither UNFCCC nor Paris Agreement envisaged a framework where developing states would have financial commitments. However, all the references to the financial obligations of the developed states in both the treaties are in reference to the ‘adaptation’ and ‘mitigation’ efforts. Considering that the L&D has always been advocated as a pillar distinct from ‘adaptation’ and ‘mitigation’, there seems no bar on the developing states to be a part of the financial contributors. Public finance from developing states is not an unknown concept. In fact, a study shows that South-originating green investment made up almost half of total renewable energy infrastructure investment with BRICS states accounting for the majority of it. Indeed, climate financing is not the same as compensation as envisaged by SIDS in the L&D scheme. Nevertheless, it indicates that some of the developing states may be ready to share this responsibility with the developed states.

Of course, L&D is a ‘work in progress’ and there is a long way to go before it comes into action. However, like the majority of environmental arrangements, the initial phases of soft-lawmaking will determine its direction. The tacit acknowledgment of states that their efforts to mitigate climate change may not totally prevent its adverse impacts in the foreseeable future is indeed another emblematic victory for the SIDS in their short existence at the international platform. However, in order to ensure that ‘loss and damage’ does not end up becoming another ‘victory on paper’, SIDS require more than just ‘moral’ support from their fellow developing counterparts.

Covid-19 and the Rest of the World

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We are constantly told that the COVID-19 pandemic is an extraordinary occurrence. Arguably, it is not extraordinary at all but a continuation of a mode of doing, thinking and being that for the most part of history has been premised on exploitation, dislocation and marginalization of vulnerable people. This includes an unshakeable belief in the inherent sensibility of a self-correcting neoliberal market order that is sustained by the international legal framework that constitutes it. Just to put things in perspective, the world’s billionaires have more wealth today than 60 percent of the world’s population, and where the 22 richest men in the world have more wealth than all the women in Africa. This last point is crucial given that women in Africa and beyond make up at least two-thirds of the global care workforce and in times of multiple ‘pandemics’, women remain at the forefront of governmental and community responses. 

COVID-19 is showing us how the system of free trade, based on profit accumulation and consumerism, is not only widening inequalities between the global north and global south but also between and within countries in the north. We are currently witnessing an unprecedented level of export bans, including moves by the EU to restrict export of medical equipment outside the bloc, export ban of over 80 vital drugs by the UK, and of face masks by Malaysia and Thailand. All of this illustrates the ways in which the rules of free trade can both liberalize and constrain the movement of much needed goods in times of crisis.

Further, I think most of us would agree that the current global food regime is distributed according
to whoever has most purchasing power and not according to who needs it the most. For example, Anne Saab and Anne Chadwick each provide a very convincing account of how international law maintains and reproduces a contradictory food regime that both maintains a particular type of food security and contains within it structures that create hunger and famine. This is a regime dominated by the WTO, which governs through market mechanisms (such as trade and private property). Resultantly, most countries of the Global South have, either through the coercion of IMF structural adjustment programs or unilaterally with the aid of World Bank programs, implemented a small revolution and liberalized their agricultural sectors. Their agricultural sectors are export-oriented and do little to protect (i.e. support) domestic agricultural production. Today, countries that rely heavily on imported food to meet demand, including sub-Saharan Africa, face disproportionate risk from supply chain failures, especially in the face of border-crossing closures. 

Safety-net systems are critical lifelines to help stem the negative economic and nutritional impacts of COVID-19. Many developing countries, however, lack safety-net systems to fill that void. In fact, less than 20 percent of people living in low-income countries have access to social protections of any kind, and even fewer have access to food-based safety nets. Any effective response to a COVID-19-related food crisis requires examining how to restructure our global and national food systems.

 Moreover, the ability of many developing countries to rapidly adopt technology and, more importantly, adopt an environment of trust allowing people to work from homes is always going to be an uphill task and cannot be achieved readily.

Not only is there the possibility of this virus affecting slums, refugee camps and densely populated poorer regions disproportionately, but also that many developing countries are using the tactics of governing refugee camps in terms of establishing quarantines and dealing with Covid-19 patients. Hospitals and clinics are ill-prepared to face this challenge due to years of budget cuts in health services. While other factors have an influence over expenditure patterns, the fact is that if more resources are dedicated to debt service then fewer are available for health services. For example, the 80’s and 90’s saw Africa suffer the effects of a series of neoliberal policies under the structural adjustment programmes (SAPs), which essentially cut funding for public services and goods including primary education, primary healthcare and public infrastructure. There was a push for Africa to privatise and have more of a market and export-led orientation in its development. Governments were obliged to cut their budgets for public provision of healthcare, which has been turned into a commodity placing responsibility on the individual rather than on government policy. Admittedly, in past disease outbreaks, the approach of wealthier countries has been to invest human and financial resources in poorer countries to prevent the need to fight the virus on their own soil. However, COVID-19 has flipped the equation. Poorer countries that have struggled to build their health systems, particularly as multilateralism has been challenged, are being faced with a new reality where they must prepare for, fight, and recover from COVID-19 on their own.

It is also foreseeable that a number of Global North and Global South states will face claims by foreign investors before investment arbitral tribunals because such measures may breach international investment agreements. International law protects states in situations of necessity or force majeure, and more recent bilateral investment treaties, for example, allow for exceptions to investment protection when measures are taken to protect public health. But different states have taken different measures which leaves open the possibility for investors to still make a claim. This will have a disproportionate impact on the Global South which is already unable to cope with the economic disrupture caused by the pandemic.

Lastly, it is surely inevitable that death rates in Syrian refugee camps, in Yemen, and in many of the world’s poorest countries will be far higher than in the rich world. It is also true that COVID-19 may be relatively low on the list of concerns that people in those countries will have. War, hunger, and other fatal illnesses will be more pressing, and notions of isolation and social distancing may have little relationship to lived reality or practicality. For many, social distancing and home quarantine will in practice be impossible. COVID-19 will only intensify the already existing crisis.

Thus, the above points to the fact that we need to stop looking at COVID as an exception to the norm since it is, if anything, its very embodiment. To reiterate, there is nothing novel in our response to the virus as we have repeated, and as we were bound to repeat, the same tropes and trends that were there in our limited arsenal. As with other crises, the COVID-19 pandemic exacerbates underlying vulnerabilities and inequalities. The problematic nature of our international legal architecture lays down the perfect groundwork for the emergence of the pandemic and for some of the inadequate responses from national and international institutions.

Coronavirus and International law

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Late last week, the World Health Organisation declared the outbreak of Covid-19 [hereinafter “the Coronavirus”] to be a pandemic. Since the quarantine began, I’ve had a nagging sense of having many things to do, but can’t, for the life of me, recall what they are. So, I decided the next best thing was to research on the Coronavirus and its implications in international law. Given, its relevance to our immediate lives, I hope this will be of interest to some people.

A brief overview of WHO laws

International Health Regulations (hereinafter IHR) is secondary source comparable in some ways to a Security Council Resolution, and derives its powers from WHO Convention which is a treaty under Vienna Convention of Treaties. The IHR were approved at the 58th World Health Assembly in 2005, in accordance with Article 21 of the Constitution of the WHO. This provision gives the World Health Assembly the authority to issue regulations, inter alia, in the subject of “procedures designed to prevent the international spread of disease”. Regulations adopted under this procedure become binding for all WHO Member States, with the exception of those which explicitly “opt out”. The IHR entered into force in 2007, and are currently binding for all 195 WHO Member States and Liechtenstein.

There have been 6 emergencies so far- H1N1 in 2009, Ebola in 2014, Polio in 2014 too, Zika in Brazil which only lasted for a few months, Ebola in Congo which is still an emergency, and now, the Coronavirus. As noted by Pedro Villareal, Senior Research Fellow at Max Planck, in a post about Ebola on EJILTalk, the criteria for declaring an emergency are vaguely worded and difficult to be framed in purely legal terms.  Scholars have noted that polio, in particular, was used politically to put pressure in Pakistan and instances like these stand in sharp contrast to WHO’s ethos as a technical organization based on evidence and science. Further, discussions taking place within the meetings of the Emergency Committee are not open to the public. Only the final outcome of the meeting is published. 

“If it has been determined in accordance with Article 12 that a public health emergency of
international concern is occurring, the Director-General shall issue temporary recommendations in
accordance with the procedure set out in Article 49… Temporary recommendations may include health measures to be implemented by the State Party experiencing the public health emergency of international concern, or by other States Parties, regarding persons, baggage, cargo, containers, conveyances, goods and/or postal parcels to prevent or reduce the international spread of disease and avoid unnecessary interference with international traffic.”

ARTICLE 15 IHR

As per Articles 15 and 48(1)(c) IHR, the WHO Director General may issue temporary recommendations. Article 1 defines them as “non-binding advice.” Beyond the framing and certain procedural issues (i.e. monitoring), it is unclear to what extent advice given after an emergency in the form of temporary recommendations will have more or less weight than non-emergency advice. Once an emergency is declared, the WHO has to review temporary recommendations every 3 months.

WHO members are not legally required to state their policy. WHO only requires states to report on their implementation every year and then the WHO compiles and gives a macro-picture to the Health Assembly. As per Art 43 only when states go beyond WHO recommendations or do things that are othewise in breach, then they have a good faith obligation to cooperate with WHO and one another by assessing health events occurring on their territory, notifying to WHO those which reach a certain threshold of gravity, providing detailed information and taking a range of measures depending on the nature of the health event.

WHO historically is a very deferential organisation to its member states and has historically preferred voluntary and technical approaches. There is not much naming and shaming or harder forms of enforcement in WHO culture, and most political pressure often takes place on a bilateral level. Greater reliance is rather placed on the legitimacy and credibility of WHO as provider of authoritative guidance and information, on its technical assistance to countries in need, and on its authority to convene experts and stakeholders from all over the world to increase the level of knowledge and aim at scientific consensus regardless of political differences.

Thus, states have a lot of discretion to impose measures. Certain states have done screening on incoming passengers, quarantine for certain groups, others have suspended travel. To a certain extent these measures fall under the IHR but the problem with the IHR is that it uses the term “traveller” in some places concerning the scope of application and in other cases talks about “persons” leaving some degree of ambiguity about its applicability. Further, as noted by Professor Gian Luca Beri, Professor of international law at the Graduate Institute of Geneva who also served in Legal Office of the World Health Organization, the IHR lacks a both a dedicated funding mechanism and a formal mechanism for compliance monitoring. He also talks about the compromises that were made in the negotiations of IHR that touch on sovereignty.

The intersection of Global Health Law and Human Rights

Some media reports talk about how people in Wuhan feel like they’re being sacrificed for the greater Chinese population (Take for example this report titled China Sacrifices a Province to Save the World From Coronavirus). Similarly, for the longest time, in California, a cruise ship, which lingered in limbo for days off the coast after a former passenger who died of the virus is believed to have spread infections on board, kept more than 3000 people confined to the cabins with figures of infected passengers increasing every day. Further, as Virchow notes, even when governmental measures may adopt a facade of neutrality, public health tends to follow an inexorably utilitarian logic, which can often lead to inadvertent discrimination. For example, women are overwhelmingly responsible for caretaking both at home and as front-line health providers. And “social distancing” means little in crowded housing conditions, prisons, and public transportation and may lead to stigmatization of already marginalized groups. This obviously raises a lot of human rights issues. The WHO Rules however are completely agnostic about that. It is notable that to date WHO has not issued any substantive guidance on how countries can take public health measures that achieve health protection while respecting human rights.

Surprisingly, I have not even come across media reports taking this human rights element into account. Some scholars have noted that this might be because the community of global health experts are not particularly familiar with human rights and it is seen as a distraction used to politicize technical work.

The intersection of Global Health Law and Trade

This emergency has economic implications locally but also in terms of trade. There are no institutional link between the WTO and WHO regimes but it is fair to say that the IHR was adopted with the WTO in mind to avoid situations of incompatibility. There is a requirement of risk assessment under the IHR as much as the GATT for that matter. They both take a fairly “scientific and technical” approach. Trade restrictions might not be as much of an issue for Corona Virus because no commodities that are incriminated on the basis of the virus. In contrast, take the H1N1 influenza which was, atleast in the beginning, associated with pork meat and China, Croatia, Russia amongst 17 other countries, blocked the import of Canadian and American pork. China underlined the fact that China was the most populous nation in the world, and stressed the burden this virus could have on its public health system. Despite measures to prevent entry of the disease into China, there had still been instances of detection of the virus, which highlighted how contagious it was. The provisional measures imposed by China took into account its huge population, its susceptibility to the disease through human-to-human transmission, the fact that China was the world’s biggest producer of pork and that pork was the most consumed meat product in the country. There was an immediate reaction by Canada and America in the Sanitary and Phytosanitary Committee that this ban had no scientific basis, was not recommended by the international public health, food safety and animal health bodies and that the IHR does not justify those measures.

Conclusion

As the scholars I have cited have noted, it is clear that the IHR has flaws. As Prof. Gian Luca notes, if the WHO has to play its role, it needs money, and flexible money. That’s something that the IHR was never conceptualised to generate. Beyond that, I’m wondering whether we can go beyond a concept of emergency to take in a more complex reality. Prof. Gian Luca hints to that when he notes that calls for introducing a more gradual alert system are increasing.Further, there is a definite need for more clarity on travel bans and additional measures and a clear system to assess compliance.

International Law and Development IV: Agriculture Investment and Food Security

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After decades of steady decline, the trend in world hunger – as measured by the prevalence of undernourishment – reverted in 2015, remaining virtually unchanged in the past three years at a level slightly below 11 percent. Meanwhile, the number of people who suffer from hunger has slowly increased. As a result, more than 820 million people in the world are still hungry today, underscoring the immense challenge of achieving the Zero Hunger target by 2030.

FAO 2019 Report “The State of Food Security and Nutrition in the World

I have already highlighted here, here and here the ways in which the ways in which development in the 20th century is tied to discourses of modernization and the agricultural trajectory is also an important one to keep in mind.

What’s at stake?

(Thanks are due to Prof. Ruth Buchanan, Osgoode Hall, for bringing this to my attention)

  • There are 800 million people who are chronically undernourished (this means a caloric intake below minimum required for a sedentary lifestyle- interesting to remember that a lot of the people who are chronically undernourished come from the margins of society and often don’t have the privilege to have jobs that would allow them to lead a sedentary lifestyle).
  • Around 1/3rd of the world population is actively engaged in agricultural work. So how we decide rules in the international level matters.
  • There’s also a growing dependence on food imports for the world’s poorest countries.

Meanwhile,

  • World food trade has been growing dramatically.

History

The international trade in food items is nothing new, nor is debate about its merits and downsides. The imposition of the Corn Laws in Britain in 1815, for example, sought to protect domestic farmers by imposing steep duties on imported grain. But the idea that countries should strive for self-sufficiency came under pressure in the mid-1800s in the context of objections from industrial interests and rising concern about access to food for Britain’s poorer classes. The Corn Laws were repealed in 1846 and this episode is widely seen to have ushered in an era of “free trade”, as many countries around the world followed Britain’s lead in reducing agricultural trade barriers. This “golden era of free trade” for food and agriculture only lasted a few decades, however, and countries were soon back to protecting the agriculture sector by the 1880s and throughout most of the twentieth century.

After World War I, the League of Nations saw the need for multilateral mechanisms to address problems with food production, supply, and trade, including assistance to developing countries. In 1941, Franklin D. Roosevelt’s influential “four freedoms” speech stressed the importance of “freedom from want” as a key tenet of international policy. This call was taken up in the global arena around food with the establishment of the FAO in 1945, which explicitly states in the preamble to its constitution that one of its main aims is “ensuring humanity’s freedom from hunger” by promoting greater and more efficient production and distribution of food, raising levels of nutrition, and bettering the condition of rural populations.

Beginning in the 1940s, and accelerating in the 1950s, a lot of American foundations started aggressively funding agricultural modernisation. By the mid-1960s, for example, the United States of America urged India and other developing countries to adopt Green Revolution farming techniques in order to improve their own agricultural productivity and gain a greater measure of self-sufficiency that would enable them to reduce their dependence on food aid. The idea was the increase profit yields so that the world could be fed. It wasn’t just higher yielding varieties that were improved but added input like fertilisers, new seeds, irrigation, pesticides etc. It was immensely successful in that it increased food production but the assumption that increase in food production would automatically reduce food insecurity was a tenuous one. For example, Amartya Sen’s work shows us that hunger is deeply linked to individual food access, rather than simply its availability in society. People’s access, in turn, depended on their ability to obtain resources to produce, buy, or trade for food. In other words, having enough food available in a society was no guarantee that everyone would be free from hunger. This important insight was captured in the World Bank’s 1986 report, Poverty and Hunger, which defined food security as “access of all people at all times to enough food for an active, healthy life.”

Starting in the 1980s, with the rise of neo-liberal economic policies, there was growing pressure to liberalize agricultural trade within the international trade regime. There had been some earlier attempts to incorporate agriculture into the GATT rules in previous decades, but these efforts were not successful. The Uruguay Round, launched in 1986 and completed in 1994, included an Agreement on Agriculture that incorporated rules to begin the process of liberalizing agricultural trade.

From the mid-1990s, the concepts of food sovereignty and the right to food also gained increasing attention from scholars concerned with issues of hunger, and have been influential in shaping global food security norms and ideas. Food sovereignty emerged as a concept in the early-mid 1990s and has Jennifer Clap, Canada Research Chair in Global Food Security and Sustainability in the School of Environment, Resources and Sustainability (SERS) at the University of Waterloo, notes, it has been associated with a broad social movement that challenges what it perceives as a food system controlled by transnational corporations and industrial country interests and advocates the rights of states and communities to shape their own food systems.

The 1996 World Food Summit expanded the definition to incorporate nutrition and cultural dimensions, and with the addition of the word “social” in 2001, this definition remains the most widely used and authoritative definition of the concept today: “food security exists when all people, at all times, have physical, social and economic access to sufficient, safe and nutritious food that meets their dietary needs and food preferences for an active and healthy life”

In the 2000s, there was a consolidation of the four pillars of food security and growing attention to the right to food, food sovereignty, and new dimensions of nutrition. The word “social” was added to the FAO definition of food security: “Food security exists when all people, at all times, have physical, social and economic access to sufficient, safe and nutritious food that meets their dietary needs and food preferences for an active and healthy life.”

Trade and food security

There has been a longstanding debate on whether trade supports or undermines food security. The idea is complex and for some it might enhance food security and for others it may not. Not surprisingly, this issue has brought the WTO to its knees as countries like India and other countries of the Global South have pushed for “policy space” in trade rules to pursue food security measures while other rich, industrialized countries have fought for further trade liberalisation. The result has been a stalemate. Both advocates and critics of trade have constructed narratives to support their propositions- one seeing trade as an opportunity for food security and the other as a threat. The former talk about trade allowing countries to benefit from comparative advantage. This is Ricardo’s theory where he basically argued that if countries produce the goods that they are relatively best at producing, this will lead to more efficient production leading to economic growth and then greater supply, and finally greater access. Countries also argue that trade improves food distribution- from surplus areas to deficit areas. Some argue that this is absolutely essential in times of climate change.

On the other, for critics, trade is seen to threaten not just the sovereignty of states but also self reliance of communities. When we look at rice, maize and wheat, we see a huge proportion of these crops being handled by a very few countries. Reliance on just a few sources can lead to vulnerability especially in times of crisis. Bolivia for instance announced that it is aiming for 100% food security. Another argument made is that trade discounts the broader sociological and ecological goals of agriculture. The idea is to see the aspect of agriculture beyond trade-able communities. To quote Wolfgang Sachs, agriculture is not a normal business, it is so much more. Further, liberalised food trade brings enormous risks- it can undermine livelihood, autonomy and land rights of small farmers. One thing we know, in economics if you are a country that specializes in agricultural goods they are likely in a growing trade deficit situation, the real price for agricultural exports tend to decrease over time, whereas if you were producing manufacturing goods then they would hold firm or increase. The second concern for Global South countries is that agricultural products tend to be subject to much more price volatility which can damage the domestic economy, especially if you are a small country heavily reliant on export of one or two commodities.

Both sides have some convincing and some not-so-convincing arguments. For one, in today’s world, it is questionable how much relevance Ricardo’s theory holds because what Ricardo was talking about was a time when capital was not mobile between two countries, only goods were. Today we have transnational corporations and the rise of global value chains. This narrative also ignores the impact on the ecology. 3 countries produce 90% of the palm oil and they are experiencing the worst of forest loss. On the other hand, self-sufficiency is not a feasible goal for some countries. There are land, water, soil constraints. Those countries will need to rely on trade to meet their food security needs.

We see this talking past each other and I think its important to question why. There are different ideological traditions represented in these two world views based on these world views, goals, and language. When we examine the kinds of speeches put forward, we see different sets of words. The first group talks about markets, labour productivity, the other talks about community. There is also different types of scientific data that each side consider legitimate. The advocates talk about quantitative data to support their perspective while the critics rely on qualitative data and lived experiences and stories. Funnily, each side does not acknowledge the other sides evidence. This obviously shuts down meaningful dialogue.

Indeed, life is rarely so simple that among two competing views, one is right and the other wrong and Jennifer Clap suggests an alternative. She proposes that we ask more open ended questions like “under what conditions is trade harmful for food security and under what conditions is it beneficial” as opposed to “is trade good or bad”. (But how do you “broker compromise” between institutions like the WTO and FAO when it is the “powerful interests” that control the WTO?) She also advocates the creation of new, objective scientific indicators in consultation with advocates from both sides of the debate.

Guest Post: Restitution of Cultural Objects Taken During Colonisation Part 1

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-Kartik Ashta, BA LLB (NLU Delhi)/ LLM International Law (The Fletcher School of Law and Diplomacy)

Recent reports post the UK’s exit from the European Union suggest that the return of the Elgin Marbles would be included in the EU’s demand for the return of ‘stolen, or wrongfully removed artefacts.’  While it would be naïve to assume that the UK would just hand them over without a fight, it is important to note that the Elgin Marbles, and the discussion around them are only emblematic of the importance that cultural artefacts have in the public mind, as bargaining tools, and as signals of soft power in the international sphere.  The discourse around such restitution has happened in fits and starts, not just recently, but for many years in history. 

The history of restitution of cultural artefacts is rooted in the fact that buildings and markers of cultural importance were prime targets in conflict.  Even Homer’s Iliad refers to the Greeks attacking temples of Apollo and Athena.  Napoleon dreamed of his French Empire being the cultural capital of the world, and Hitler always wanted to build the Fuhrermuseum in his home city of Linz, Austria.  The historical evidence of loot and plunder of these ‘objects of beauty and civilisation’ has been documented, and such destruction has also been criticised by thinkers and philosophers in history. 

The reasons for the looting and destruction of cultural objects are many, and include targeting and destroying the essence and traditions of a society, the aggressor’s desire to own markers of ‘civilisation’, and also the economics of ‘blood antiquities’, where in today’s day and age, antiquities are destroyed, and sold on the black market to fund illicit markets for arms and drugs which continue to fuel conflicts.

The current scenario has brought these issues back to the fore.  Questions regarding restitution of antiquities and artwork became important after the process of decolonisation began from the 1950s.  With newly emerging states acutely aware of the theft that their erstwhile colonisers had inflected on them, along with the need to build a domestic cultural consciousness, the call for the restitution and return of objects became louder.  This culminated in the 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, and the 1995 UNIDROIT Convention on Cultural Property. The issue with these conventions however, was that they do not apply retrospectively.  As a result, colonial era looting was ignored once again. 

The question that scholars then have to answer is, is there a legal basis for the return historically looted cultural objects? Scholars have usually sought to answer this question by placing it within the realm of equity, or customary international law.  For centuries, as stated before, philosophers have not only decried the destruction of objects and structures of cultural importance, but have also demanded that looted works of art be returned.  After Napoleon’s loss at the Battle of Waterloo, he was forced to return objects that were stored in the Louvre as spoils of war.  Furthermore, a number of treaties signed after the end of the Thirty Years War included provisions for the return of artefacts, and archives, and also included a tacit understanding that they should not be targeted as they served the interests of the ‘state and all mankind.

The Hague Convention of 1907 specifically forbade the targeting of buildings of scientific, religious or cultural importance.  The Convention, which dealt with the rules of land warfare, was significantly influenced by the existing domestic codes of military conduct, primarily among them being the Lieber Code of 1860, which also included a provision against the targeting of such buildings and areas.  Between 1907 and 1954, the world witnessed two World Wars.  Preceding the Second World War, Hitler’s disenfranchisement of the Jewish population also included the process of stripping them of any economic rights, or means to earn a livelihood.  Rich members of the Jewish population were also connoisseurs of the arts, and their artwork was either taken away, or ‘bought’ at basement prices.  The ‘Monuments Men’ were a group of soldiers, academics, and artists who were part of the Allied forces which then got together to find artworks and objects hidden away by Hitler to form his personal collection, or be placed in the Fuhrermuseum.  Those objects which were not found, became part of a larger part of the process of restitution of ‘Nazi Looted Art’.  In fact, a number of countries got together to launch coordinated and concerted efforts to find and return such art to their honours or heirs of the honours.  These efforts resulted in the Terezin Declaration of 2009 and Washington Principles of 1998. 

As a result, 3 arguments have been made for a legal basis for restitution.  These are the arguments of self determination, customary international law, and unjust enrichment.  Ana Filipa Vrdoljak argues that true self determination can only be achieved if cultural components of society are restored to them.  Furthermore, as stated previously, the looting and destruction of cultural artefacts is an internationally wrongful act, and the remedy for such acts is first and foremost, restitution.  This fits right in with the Draft Articles on State Responsibility for Internationally Wrongful Acts, and finally, there is a sacred link that exists, and must be answered in equity. 

The argument of customary international law requires us to look at the actions of nations not just recently, but throughout history.  As stated above, there is enough documentation in history to prove that restitution of cultural artefacts have taken place routinely, all the way to date, including efforts to return Nazi Looted Art.  More recently, the French, Dutch, and Belgian governments have taken steps to either return, or loan in perpetuity artefacts that had been taken from their erstwhile colonies.  The only countries still holding out are the Spanish, and the United Kingdom, with pressure being exerted on them politically by a number of nations who find objects dear to them in ‘universal museums’ like the British Museum.  These restitutions are only the most recent in a long history of return of cultural artefacts, which to put it into jargon, are evidence of widespread and continuous practice of states, especially since those states which are acting now are the holders of the removed objects. 

States have also argued that their erstwhile colonisers benefited economically from the artefacts which they had taken.  The benefit from stolen items falls under the guise of unjust enrichment, a recognised principle in many countries over the world.  Institutions like the British Museum, the Louvre, and the Rijksmuseum have garnered immense economic benefits from the display of forcibly removed artefacts, and it is imperative that such historical wrongs be righted.  The domestic law of many nations also recognises that the first remedy for unjust enrichment is restitution. 

Recent moves in this field have moved towards restitution.  The Belgian government has decided to return archives to the Democratic Republic of Congo, and the Rijksmuseum has taken steps to begun the return of objects to Indonesia.  The French, after the release of a seminal report, have also sought to begin the process of return, most importantly of the Benin Bronzes. 

However, it would be remiss to believe that these steps are out of goodwill.  Macron’s policy motives are positioned in a manner to allow the French to have a greater role in the politics of West Africa.  As a result, politics and political self interest may be a greater push factor in hastening the return of cultural artefacts.  The legal arguments may only play a surface level to cover the real reasons for return. 

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I was finding it difficult to write about international law issues happening elsewhere when my own country was in the grips of such horror- videos and reports of horrific riots are everywhere; mosques being burnt to the ground, four public institutions that were moderately autonomous before 2014 i.e., the armed services, EC, RBI and the Supreme Court are subject to various degrees of capture and intimidation by the ruling party at the Centre; and the silence of the politicians in power and the police is deafening. I felt uncomfortable but it is difficult to discuss how one “feels” in a scholarly manner. Moreover, I couldn’t simply start talking about this on my blog that very clearly has to do with International Law issues right? The point of my blog or of any legal scholarship isn’t to be passionate or to make the reader feel something.

Isn’t it though?

As reluctant as I am to admit it, part of the appeal of international law is that it has an aspirational dimension in which law bears an enduring relationship to the idea of justice. Thus my reaction was as a member (however critical) of the field, and as someone who continued to believe that the discipline had something of value to contribute to the world. Yet it’s very difficult to talk about what’s happening in India in the language of international law- almost genocide anyone? Incidentally though, John Sifton, the Asia advocacy director at Human Rights Watch, has claimed that India couldn’t argue that its moves are an “internal matter” because international law was being violated. (Sidenote: Reminds one of BS Chimni’s polemical denunciation of international law as a wasteland. )

And then I realised I really didn’t have to censure myself or worry that this wasn’t the right forum or worse that my blog wasn’t appropriately aridly technical, acontextual, and ahistorical. Such an approach might support, and itself be reinforced by, a modern turn toward emphasizing the universality, comprehensiveness, and imprescriptibility of the primary norms underlying the legal system. We might be concerned that a turn to passion in international law scholarship could involve a florid attention to broken bodies or a kind of victim pornography. Or that it would lead to a total personalization of analysis, where the individual scholar centers themselves as the main protagonist in international legal questions. But at a time like this, when streets are filled with people chanting for peace, or decrying the governments abuse of human rights, completely soulless scholarship is taking away what is innate to the topic, the stakes, and the central legal questions.

So here it goes:

This blog officially condemns the violence meted out to muslim minorities by the Indian state and its right wing affiliates. It condemns the internet shutdown in Kashmir and the crisis of statelessness created by the state with the tacit approval of some Western forces. And, it is frankly disgusted by the lack of spine displayed by police officers and leadership in Delhi.

Theorising International Law and Development Part III: Investor State Dispute Resolution

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International Investment Law is a fairly recent field of law and arguably exploded in the 1990s. In this era, the locus of interaction has expanded to include states, foreign investors, and non-disputing parties that are granted limited privileges as amicus curiae. More significantly, this is an era in which developed states are once again significantly engaging in re-development of the rules governing the system. Like the crop of investment law that applied during the colonial and postcolonial eras, there is a reiteration of the development of international investment law in a manner that systematically resists peculiar Third World influence.

Interestingly before the 1990s, investment rules seemed settled, at least from the perspective of major capital exporting countries, until rules formerly applied almost exclusively to the Third World in dispute settlement proceedings were extended to developed-state defendants. Suddenly, the rules appeared inadequate and biased in favor of investors, and economically powerful states increasingly adopted formerly untenable Third World arguments.

What is the investor state regime?

The significant thing about these agreements is that they delocalised and denationalised investment relationship by providing investing corporations and individuals the legal right to sue the host state directly in binding arbitration proceedings conducted by arbitrators selected by the disputing parties outside the legal institutions of the host state.

Cutler

In the colonial era, the primary motivating factor was developed states’ desire to protect the
property of their nationals in Third World countries, prompting Professor Anghie to allude to the “colonial origins of foreign investment law as an academic discipline.” During the colonial era, foreign investment protection was assured through the instrumentality of merging the legal systems of the colonized and the colonial power, and where this failed or where the territory in
question was independent of a colonial power, foreign investment protection was assured through gun-boat diplomacy. As a result of this colonial paradigm, the need for an international dispute settlement institution was minimal.

In the 1960s newly decolonised states were trying to kickstart their economy from the top down by extensive governemnt intervention in economic policy. one of the things these states did was to nationalise key industries such as oil in Mexico or Venezuela.

In the wake of the sense that developmentalist states were going to be interventionists provoked concerns among investors. This shift was mainly due to the perception of transnational
corporations (“TNCs”) and their home states, that the application of the host state’s law and adjudication by domestic tribunals might be prejudicial to their interests. ICSID was established in the euphoria of these ideologically charged times. It filled the need to protect foreign investment in the Third World and suggested that the promise of investment protection would attract foreign investment to the Third World. In the definition I provide above, Cutler highlights the de-localising and de-nationalising notion of this process- it was important for investors to have remedies not governed by state laws. In the current regime, the investor is, for example, protected against an unfair and unequal treatment, against discrimination related to nationality reasons or against expropriatory measures.

Van Harten situates this regime as a less costly and less odious alternative to the use of force in economic affairs. He also speaks to the North-South dimension of the regime when he says that:

“Investment treaties apply standards of reviews to protect foreign investment from state regulation- that are based on a Western conception of international law that was long resisted by the Third World, and the typical contemporary arbitrator is a Western professional…It is not surprising that investment treaty arbitration is viewed with hesitation, not to say suspicion in many quarters.”

A number of years ago, Yves Dezalay did a study that ultimately culminated in a book called “Dealing in Virtue”. They wrote that ‘International arbitration is an arcane domain, the subject to date of a literature produced mainly by insiders with their own particular understandings.’ The factors that are take into consideration are impacted by who are the decision makers. Further, arbitration tribunals are granted a wide interpretive ambit not unlike that available to national high courts in constitutional states. According to Douglas, investment treaty standards are ‘uncertain’ just like fundamental freedoms in ‘a constitutional text.’ Even though the power of investment arbitrators, like judges on high courts, is a ‘negative’ one – they can only tell governments what not to do, not direct them to do it– they, practically speaking, can direct governments to behave in specific ways by recommending conduct that will not run afoul of investment treaty standards (e.g. the improbably high standards set out under fair and equitable treatment)

Broader conceptual problems with the regime

  1. The arbitration system is voluntarily in disequilibrium in favour of the investors’ protection. The overall system whereby the investor is always the claimant and the State, the defendant, indeed gives the appearance of a disequilibrium. While you could argue that states consent to the treaties, it is not always an easy achievement for developing States to successfully negotiate international agreements geared towards their interests. Indeed, they have a poor bargaining power in international negotiations. In 2006, for instance, Bolivia proposed a treaty project on equitable trade and cooperation to the United-States of America. Considering the economic disequilibrium between the two States, Bolivia suggested that a bilateral agreement should include, among others, provisions on poverty reduction, healthy environment, the promotion of agricultural and indigenous agriculture, sovereignty over natural resources, principles of special and differential treatment, the protection of biodiversity or of cultural diversity. The proposition was simply rejected by the United-States of America. Some developing States have managed to negotiate bilateral investment treaties upholding their national interests (Vietnam-UK BIT comes to mind) but this remains an exception.
  2. The tribunals adopt a depoliticized (or apolitical) conception of the law. One of ICSID’s major contributions to investment arbitration is the exclusion of a foreign investor’s home state from formal participation in dispute settlement once a claim has been submitted to ICSID. In ICSID parlance, this is generally referred to as ICSID’s ability to depoliticize investment disputes. Although this is the oft-referred-to angle of the depoliticization agenda, one could read depoliticization in more than one way. The second view entails a separation of “law” from its socio-economic, cultural and political origins and ramifications. Often, IIAs dictate that tribunals determine whether measures violate most favored nation treatment (MFN), national treatment (NT), and fair and equitable treatment clauses and so on. The nature of some of these clauses requires an inquiry into the origin and nature of laws and regulatory measures. This is however, limited to interpretation of actions in light of applicable law, and not a questioning of the wisdom of domestic policies. By privileging some reasons for adopting regulatory measures over others, tribunals are involved in highly political inquiries, which they purport to exclude in the first place.
  3. While the foreign investor includes the corporation and the shareholders, the state party is often constructed in this forum as an abstract, artificial entity separate from and divorced from its population. Apart from the state, Articles 25(1) and 25(3) of the ICSID Convention envisage situations where a constituent subdivision or agency of a state could be a party to dispute settlement proceedings (where the state designates such constituent subdivision or agency to ICSID), although this has not been a frequent occurrence. As laid down in the first article of the Montevideo Convention, the criteria for statehood include not only a defined territory, a government, and the capacity to enter into relations with other states, but also a “permanent population.’ Professor Crawford notes that “[i]f States are territorial entities, they are also aggregates of individuals. Even within this limited conception, by the very definition of statehood, arbitral tribunals are by implication entrusted with the interests of a states’ population in settling investment disputes. Thus, by discounting popular protests in investment dispute settlement, the state is read as separate from the people it represents in order to facilitate an easier process that avoids the consideration of the public interest and broader socio-political backgrounds to legal issues.
  4. Even though investor-state arbitration is currently witnessing NGO participation as amicus curiae, it is important that this is not taken as adequate representation of the views of Third World masses. Like the postcolonial state and Third World elite that emerged during the decolonization era, it is not conclusive that NGOs adequately capture the interests of Third World masses in their work. This does not imply that non-disputing party participation in investor-state arbitration does not serve useful and positive purposes. Nevertheless, it is important to note, as subaltern studies have shown, that there is a tendency to subsume dissenting voices under views represented as the universal interests of a particular country. In this regard, it is noteworthy that there is no ICSID case involving NGO participation that has been exclusively orchestrated by groups from the Third World.

Conclusion

In an Open Letter to the Chair of the UNCITRAL Working Group numerous professors have proposed measures aimed at shifting the playing field on which these kinds of disputes unfold. These include notions such as IIAs should explicitly state the right of host States to commence counterclaims. Investors’ consent to counterclaims would be deemed to have been given upon admission of the investment to the host state, a number of public bodies such as Ombudspersons and OECD National
Contact Points already are (or could be) entrusted with the task of receiving complaints from
investment-affected communities and reasonably available local remedies ought to be exhausted before the matter can be heard by the tribunal.

International Law & Development Part II : Case study of the Indian Government and the Ease of Doing Business Index

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The main advantage of showing a single rank: it is easily understood by politicians, journalists, and development experts and therefore created pressure to reform. As in sports, once you start keeping score everyone wants to win.

World Bank Staff Report, 2005

That is precisely what GPIs aim to do. They simplify a complex regulatory reality, compare all states along a set of actionable indicators, and publicize the resulting rankings to media hungry for simple headlines. As David Kennedy has cogently argued contestation among experts over the best ways to measure and compare economies is a defining feature of our globalised international order. Wielding comparative information using simple rankings is designed to alter shared information, affect third-party beliefs and opinions, and ultimately convince targets that their reputation or relative status is at stake, potentially with material and/or social consequences. Investors looking for rules of thumb to guide their decisions pay attention. Constituents use them to pass simple judgments on policies and politicians.

Social pressure of this kind is evident in the area of business (de)regulation. Since the mid-2000s the World Bank has used rankings to influence the regulatory policies of countries worldwide. By creating the Doing Business Report and the Ease of Doing Business (EDB) Index, the bank has decisively shaped states’ regulatory behavior, especially in emerging markets and developing countries. The index is focal to this discussion in part because it was one of the first to successfully harness broader intellectual and ideological trends, to link development with a country’s business-friendly environment, and thus to ride the crest of the deregulatory wave of the Washington Consensus touted by prominent economists.

Sidestepping the longstanding debates within development studies over the sufficiency or suitability of various indicators, this post, rather, is located within a different body of scholarship that seeks to examine the ways in which quantification, and concomitant processes such as the production and tracking of indicators, operate as mechanisms of knowledge production.

Ease of Doing Business Report

The World Bank, whose legal mandate was to promote investment by guaranteeing loans and supplementing private finance, began to turn its attention to what it saw as one underlying reason for underinvestment in the first place: burdensome business regulations. Thus, the EDB reports are based on factual information concerning laws and regulations in force. They deal with topics such as the time and cost of meeting regulatory requirements to register a business, rigidity of employment law or procedures to enforce a contract. They also investigate the efficiency of government institutions, including business registries, courts, and public credit registries. The methodology builds on detailed information about regulations that are considered relevant to identifying specific problems and designing reforms.

The 2004 report was the first publication of an annual series which studies the determinants of private sector development. In this report, five topics were analyzed: starting a business, hiring
and firing workers, enforcing contracts, securing credit, and closing a business. Over the next few years, Doing Business extended the coverage of topics (for instance, Doing Business in 2005 added three new sets of indicators: showing the regulations an entrepreneur faces when registering property, protecting investors, and dealing with business licenses).

Based on the performance observation of a number of legal systems, they aim to demonstrate that the heaviest regulations produce the worst results because they are usually associated with inefficiency within public institutions, long delays in reaching decisions, high costs of administrative formalities, lengthy judicial proceedings, higher unemployment and more corruption, less productivity, and lower investment.

The Report has not gone without criticism. The Association Henri Capitant published two collective works on the Doing Business reports, one written by French academics, attorneys, and notaries, another by non-French members of the Association, i.e., academics and judges from a wide range of jurisdictions: Belgium, Brasil, Bulgaria, Chile, Colombia, Spain, Greece, Guatemala, India, Italy, Lebanon, the State of Louisiana, Morocco, Mexico, Panama, the Netherlands, Puerto Rico, Quebec, Romania, Switzerland, Syria, Tunisia, and Vietnam. Chapter I criticizes the fact that the authors of the World Bank report, who are economists, not lawyers, have a perception of law which is distorted by the use of econometric methods based on the analysis of economic development factors. Further, countries, notably Georgia, have been trying to game the system instead of making meaningful policy changes. Chapter IV criticizes the very premise of the Doing Business reports. The main objection is that law is not a mere “favorable regulatory environment.” Therefore it is wrong to evaluate the quality of a particular legal system only in the context of economic prosperity enjoyed by the society in which it operates. Consequently, jurists should not hand over their profession to economists who, excited by the idea of mathematical assessment, advocate universal legal standardization, as in the “one size fits all” approach. The law of the richest is not necessarily the best.

Analysing the Impact of the Report on State Governance

Once you start keeping score, everyone wants to win. Over the past decade, policymakers around the world have spoken and acted as though the EDB matters greatly. Countries openly publicize their plans to undertake reforms. Georgia—whom some have criticized for gaming the system—announced concerted efforts to rise from one-hundredth to the top twenty in two years. In 2006, Azerbaijan’s president declared the country’s ranking “unacceptable,” and sent a working group to consult with the bank to design reforms that moved Azerbaijan up in the rankings. Since its inception, the DBR has recorded over 3,500 reforms globally in 10 areas of business regulation and reported a peak in reform activity worldwide in 2017-18, with 128 economies undertaking a record of 314 reforms

In India too, Narendra Modi began to focus on the EDB Index late in his 2013 campaign for prime minister. Emphasizing the business-friendly roots of his political party, the Bhartiya Janata Party (BJP), Modi blamed India’s poor rating on the ruling Congress Party and promised to improve the ranking. The BJP implicitly included EDB Index improvement in the 2014 party platform when it promised “making ‘doing business’ in India easy.

Modi has always been clear that his EDB-related reforms were not about improving microeconomic incentives but about signaling a welcoming investment climate through a higher EDB ranking. In his speech announcing his EDB effort, Modi declared that “industrialists don’t come due to some fancy incentive scheme. One can say you will get this or that we will make this tax free or that tax free.
Incentives don’t work.” Instead, “the investor first wants the security of his investment. Growth and profit come later,” Modi argued. For that reason, India needed to send a signal to investors that “your money will not sink.” The EDB initiative was part of that signaling effort and Modi committed his entire team in government to improve India’s ranking from 130 to 50, and then later to 30. While the reforms adopted may well have economic benefits that ordinarily could explain their adoption, they were undertaken for symbolic rather than economic value. The prime minister’s words and behavior reveal a belief that rankings matter more than economic incentives—they improve India’s reputation, and thereby attract investment.

Roughly a month after Modi announced the initiative, DIPP published a report with forty-six policy proposals across several government ministries hewing almost precisely to the bank’s subindicators and intended to improve India’s ranking. The Indian government has adopted many of these reforms, including reducing the number of days it takes to register a business from twenty-seven to one; simplifying application forms for industrial licenses; placing license applications online; exempting several business from licensing requirements; extending the validity of licenses. The effort has been mentioned in party platforms, is explicitly coordinated through interagency mechanisms, and is implemented in part through local governments by using subnational rankings to stimulate competition, embarrass opponents, and reward supporters.

According to a study by Santosh Mehrotra and Jajati K. Parida of the Centre of Sustainable Employment at Azim Premji University, total employment dropped by 9 million – from 474 million to 465 million between 2011-12 and 2017-18 for the first time in Indian history. The report calculated a high unemployment rate of 8.8 per cent in 2017-18 up from 3 per cent in 2011-12. The high rates of growth have not translated into jobs. This is coupled with informality of labour and a gender wage gap. According to the State of Employment 2019 report by Oxfam India, women on average are paid 34 per cent less than male workers doing the same task. Meanwhile, net foreign direct investment decreased from $31.2 billion in 2014 to $30.7 billion in 2018-19. This is also true for portfolio investments which plummeted from $4.8 billion in 2014 to $618 million in 2018. Indian GDP, which was growing at 7.4 per cent per annum, has been revised to 6.1 per cent by the IMF in the 2019 World Economic Outlook.

Conclusion

“Perhaps targeting a problem is not always as useful as situating a problem. Perhaps it encourages us to focus on symptoms rather than causes; perhaps it leaves unaddressed, and hence intact, the many direct and indirect sources of the problem that we seek to solve or alleviate.”

Kerry Rittich, “Governing by Measuring: The Millennium Development Goals,” in Law in Transition: Human Rights, Development and Transitional Justice, ed. Ruth Buchanan and Peer Zumbansen (Oxford: Hart Publishing, 2014), 165–88.

We are increasingly in a setting where centers in the Global North are rating the rest of the world. That is something we should at least be aware of going forward. They have ideological bents and there are winners and losers from each perspective. What this means is that development indicators such as the EDB frame both objects and outcomes through a transformative lens which conflates means and ends; equating the collection of ever more quantifiable and globally commensurable data points with the project of realizing stated ambitions of global development institutions.

Thus, creation of indicators reveals a slippage between the political and the technical. The slippage occurs in the way issues and problems are defined, in the identity and role of experts, in the relative power of the people engaged in producing and using indicators, and in the power and clout of the sponsoring organization. Through the apparatus of science and measurement, the indicator displaces judgment from governing bodies onto the indicator itself, which establishes standards for judgment. Nevertheless, indicators are inevitably political, rooted in particular conceptions of problems and theories of responsibility. Unintended consequences can and do arise in a variety of ways, either through actors seeking to ‘game’ the indicator, or through the re-allocation of resources to issues that are being tracked and away from equally.

How Can We Make Sense of the Failure of International Environment Law Despite its Prolific Growth

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International Environmental Law lawyers have brought forth our treaties, institutions and resources to tackle the global environmental challenges we face. Yet we find our technocratic solutions for climate change, mass extinction, deforestation, desertification, and increasing pollution and toxicity of the air, water, and land have only been partially helpful. That might be a bit too complimentary. Half of all greenhouse gases currently in the atmosphere were emitted in the last 30 years and one million species are now at risk of extinction, despite these two crises being the focus of sustained international law attention since the 1990s.  What explains this? To answer this question I rely on the work of Usha Natarajan & Julia Dehm, editors of Locating Nature: Making and Unmaking International Law, for the TWAIL Review.

A little context before I begin. We are told that there are two reasons for this problem still persisting. First, the non-cooperation of developing states. These post colonial states have sought development in the Western sense, perceiving it to be the only available path out of poverty, dependency, and disempowerment. At the same time, the developed world has gradually realized that its development trajectory is unsustainable and causes grave environmental harm. Thus, IEL is characterized by a tension between experts from the affluent north urgently calling for greater environmental protection everywhere, and advocates from the south insisting that poverty eradication is their priority and the north should take responsibility for environmental problems the north leaves in the wake of its well-trodden path to continuing affluence. Prost and Camprubı point out that in recent years there have been ´references to the global south ‘not merely as a reluctant and hesitant participant in multilateral negotiations, but one that is perverting environmental diplomacy’. Second, we are told that there is a lack of political will. In this post, I will consider whether there may also be other more fundamental reasons for the lack of success of the discipline.

The very origins of international law lie in doctrines put forward to allow private actors from the North to exploit natural resources in the South, whether in the arguments of Vitoria for free commerce in the Americas or Grotius’ defense of the liberties of the Dutch East India Company in its untrammeled pursuit of exploiting colonial labor and resources. This prevails even today. For instance, while IEL strives to protect us from serious environmental harm, the general thrust of international law remains towards economic expansion at the expense of ecological decline. If its counter-intuitive, its because standard disciplinary textbooks tell of how humanity’s understanding of nature changed in the 1960s. In the past, states and peoples were exhorted to control nature through science, industry, and modernity. But, with the advent of Western environmentalism, humanity turned away from mere mastery and towards protecting and cherishing nature. Thus, the environment was created as an object of and for international regulation. Foundational concepts such as sovereignty, development, property, economy, human rights, and so on, have evolved through understanding nature in ways that are unsuited to perceiving or observing ecological limits. International law primarily sees nature as a resource for wealth generation to enable societies to continually develop, and environmental degradation is treated as an economic externality to be managed by special regimes. As legal systems were supposed to enable civilized societies to triumph over external nature, they also guaranteed the right of the state to expropriate land and resources for the public good—a right now recognized as part of customary international law and articulated in many postcolonial constitutions. Whether through international laws, such as the terra nullius doctrine and the laws of title to territory, or domestic laws such as the principle of eminent domain, the modern nation-state remains founded on the ability to assert not only physical but also utilitarian authority over territory.

This is reflected for instance in the League of Nations Mandate System’s classification into A, B, and C mandates. The system oversaw a process of tutelage whereby certain European states would assist non-European territories to evolve towards sovereignty. Class A mandates had the shortest evolutionary leap, whereas Class C mandates would have to undertake significant societal transformation to be sovereign. An indispensable part of this transformation was taking steps to control and productively use the natural environment.

Further, in the process of colonization and decolonization, all the continental land masses and some of the oceans came under sovereign control. Some international regimes, such as those for fishing, explicitly require states to exploit the ocean’s maximum sustainable yield in the areas they control. If they are unable to do so they must allow others to farm these areas so as to achieve such yields. Gross overfishing and the depletion of fish stocks is the inevitable outcome in a system that demands
that in order to be modern, sovereign, and independent, a society must, among other things, demonstrate its ability to assert productive control over its environment. The modern state is a powerful mechanism for converting increasing aspects of the natural environment into commodities because a sovereign state is inescapably also a developmental state.

The contemporary understanding of development, that everyone everywhere, rich and poor, can economically grow all the time, is challenged by the concept of sustainable development as it raises the prospect of finite natural limits to economic growth. Yet, international reports on sustainable development seldom dare to call for less development anywhere, environmental treaties are loathe to hint at economic limits, and international organizations continue making policy as though development is possible everywhere all the time. Such behaviour renders the concept of sustainable development a mere ‘hope that the necessary will become possible.’

Rist argues that the idea of development helps the economically and culturally dominant remain thus. That is to say, the most developed are the real beneficiaries of development, and therefore they have an interest in ensuring that the concept remains an entrenched focus of contemporary thought. The concept of development helps naturalize and obfuscate the process whereby some people systemically under-develop others. International law and organizations have advocated the pursuit of development for more than six decades. In these decades, while certain post-colonial states are perceived to be ‘emerging’ and others even declared ‘developed’, development experts
agree that inequalities of wealth between rich and poor states and within states have widened. Such a growth-based approach to ecological crises ensures that the structures of economic privilege and subordination that created environmental problems are systemically reinforced in
circumscribing potential solutions. In other words, while international law proffers a panoply of technical solutions, the difficulty is that the problem is not amenable to a technical solution.

Alternative understandings of the relationship between nature and law are challenging and stretching legal systems everywhere. For instance, as Usha Natarajan notes in her TWAIL review article, these alternate understandings can be viewed class actions on behalf of future generations in the Philippines, transnational tribal mobilization against extractive industries across South Asia, law reform recognizing the rights of Mother Earth in Bolivia, recognizing the legal personality of non-human entities in New Zealand, the rights of Indigenous and tribal peoples to hunt protected species in the Arctic, climate justice demands of sinking small island states. Yet, as Prost and Camprubı observe ‘IEL script disregards ´ [the] practice of local resistance to environmental threats either as something that does not exist or as a practice that is “inadequate” to tackle today’s global environmental problems.’

Contemporary social movements share in common a demand from vulnerable communities for social justice, through fairer benefit-sharing in development, and more economically and environmentally sustainable development. Natural resource governance is of special importance for many such social movements because natural resources form a central pillar of growth models and development policy. Civil-society demands for transparent, accountable, and participatory governance, economic reform, and action against corruption and human rights abuses
are often closely related to natural resources and the environment. This is particularly evident in emerging economies where rapid growth brings to bear increasing pressures on the resource base and the communities that host them, with host communities often excluded from the benefits of growth despite historically high commodity prices and record corporate profits.

They also call into question traditional orthodoxy on the role of the state in the political–economic order. Control over natural resources has been central to state legitimacy and power, shaping the nature of governance, and influencing how sovereignty and statecraft function. Contemporary protests provoke a rethinking of the developmental state, posing:


important questions about the allocation of wealth and power in society. To what ends
andin whoseinterest do we regulate such resources?Who can own these resources and
in what form? Can and should limits be placed on the use of resources to protect other
social values? Such questions are rightly in the domain of international and municipal
law.

Often this resistance exposes deep rifts between land-based peoples’ cosmologies that rest on principles of deep relationality with lands, waters, and other beings, and extractive logics, in which elements of the earth are understood as resources presumed to exist for the sole purpose of providing sustenance to humans. The idea that humans may be in relationships with these elements, that these elements exist in relation to each other, and that those relations may include not just the right to ‘take’ but obligations to protect or to steward, is emerging as a direct challenge to extractivism. In fact, this challenge is now most forcefully expressed as one of a ‘conflict of laws’: with Indigenous peoples pointing to their own pre-existing, still operating, and always evolving legal orders as the source of their obligations to protect and defend the land.

Environmental change confronts international lawyers with the systemic injustice we help create and maintain. It demands an acceptance that we were mistaken in thinking we could construct and then govern the environment. It necessitates that we transcend the confines of Western modernity and embrace instead other narratives about our relationship with the natural world that more accurately estimate human ability to regulate it. We need to look outside of the constructs that are familiar to us i.e the language of protection, remedy, damages and liability, all of which is grounded in Western philosophy and the idea that humans are the centre of the natural world, in order to protect our environment more fruitfully.

Theorising International law and Development: Part 1

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The Bretton Woods Conference, officially known as the United Nations Monetary and Financial Conference, was a gathering of delegates from 44 nations that met from July 1 to 22, 1944 in Bretton Woods, New Hampshire, to agree upon a series of new rules for the post-WWII international monetary system. 

(This is the first of a series of posts on International Law and Development and is very special to me. It is largely inspired by Prof. Ruth Buchanan, whose course on the same topic has given me much to think about. )

What relationship does international law have to the development paradigm? Both experts and activists view international law as an instrumental means by which poverty may be
addressed, but which is intrinsically secondary or epiphenomenal to the causes of poverty.

 There was a perceived incompatibility of human rights and development. This can be boiled down to two reasons. Earlier, human rights were predominately understood as civil and political rights over economic and social rights. The expansion of human rights was imagined as belonging to the person as against the state whereas development was a state led project and it needed a strong state that could implement a project top down. Human rights was therefore viewed as not compatible with development which was focused on macro-economic growth at least till the publication of Amartya Sen’s book “Development as Freedom” which proposed a new measure of development aka the Human Development Index. Further, institutionally they operated on two different tracks. The discourse and practice of human rights and development were thus understood as different projects, carried forward by different individuals. It wasn’t really until the 1990s that we saw rights talk make inroads into the development paradigm which coincided with the shift in the kind of lending provided by “developed” to “developing” countries. There were critiques of the Washington Consensus in the 1980s and the promised gains in terms of economic growth did not materialise and these institutions needed to prove their legitimacy so they turned increasing towards language of participation and inclusiveness.

This profound relation between international law and the development project has been explored in a body of critical international legal scholarship that has systematically challenged common readings of international law as a purely non-contingent normative body or as simply
the outcome of the will of states. These scholars, including Donatella Alassandrini, Antony Anghie, Jennifer Beard, Hilary Charlesworth, Anne Orford, Sundhya Pahuja, Balakrishnan Rajagopal, Alvaro Santos, Chantal Thomas and David Trubek, amongst others, have engaged in an exploration of international law in terms of the historical and material relations from which it emerges and which it generates. In particular, these authors have studied international law in terms of its relation with the expansion of European empires and their ontological structures, economies and cultural and legal frames through the colonial process and the daily disciplines that this process unleashed, as well as the global spread of the nation-state form, the expansion of the international institutional realm, especially from the second half of the twentieth century onwards, and the channelling of these historical events and their problematic political and economic effects through contemporary international normative discourses, in particular the idea of development.

Based on this understanding of the reciprocal relation between international law and development, these scholars have generated readings that attempt to overcome the usual assumption that these two fields encounter each other only through international norms or institutions dedicated to the promotion of international development. They have also shown that international programmes supported by international institutions or through international cooperation agreements involving legal related reforms in Third World nations are far from being the only places in which international law and the development project cross paths.

History of the Development Discourse

If during World War II the dominant image of what was to become the Third World was shaped by strategic considerations and access to its raw materials, the integration of these parts of the world into the economic and political structure that emerged at the end of the war grew more complicated. From the founding conference of the United Nations held in San Francisco in 1945 and throughout the late 1940s, the fate of the nonindustrialized world was the subject of intense negotiations. Moreover, the notions of underdevelopment and Third World were the discursive products of the post–World War II climate. These concepts did not exist before 1945. They emerged as working principles within the process by which the West—and, in different ways, the East—redefined itself and the rest of the world.

The year 1945 marked a profound transformation in world affairs. It brought the United States to an undisputable position of economic and military preeminence, placing under its tutelage the whole Western system. This privileged position did not go unchallenged. There was the rising influence of socialist regimes in Eastern Europe and the successful march of Chinese Communists to power. Old colonies in Asia and Africa were claiming independence. The old colonial systems of exploitation and control were no longer tenable. In sum, a reorganization of the structure of world power
was taking place.

The period 1945–1955, then, saw the consolidation of U.S. hegemony in the world capitalist system. The need to expand and deepen the market for U.S. products abroad, as well as the need to find new sites for the investment of U.S. surplus capital, became pressing during these years. Yet the fundamental preoccupation of the period was the revitalization of the European economy. A massive program of economic aid to Western Europe was established, which culminated in the formulation of the Marshall Plan in 1948. As Georges Bataille, following French economist François Perroux’s 1948 analysis of the plan argued, with the Marshall Plan, and for the first time in the history of capitalism, the general interest of society seemed to have taken primacy over the interest of particular investors or nations. The Third World was not deserving of the same treatment. Compared
with the $19 billion received by Europe, less than 2 percent of total U.S. aid, for instance, went to Latin America during the same period (Bethell 1991, 58); only $150 million for the Third World as a whole were spent in 1953 under the Point Four Program. The Third World was instructed to look at private capital, both domestic and foreign, which meant that the “right climate” had to be created, including a commitment to capitalist development; the curbing of nationalism; and the control of the Left, the working class, and the peasantry. The creation of the International Bank for Reconstruction and Development (most commonly known as the World Bank) and the International Monetary Fund did not represent a departure from this law.

As others have observed, Truman’s address was remarkable for its ‘discovery’ of poverty. Suddenly, most of the world was understood as being defined by lack. Though the mass dislocations caused by the consolidation of capitalism did dissociate people from access to land, water and food, and create vast inequalities, and though the causes of material want were real and many, without their even knowing it most of the people in the world were lumped together as simply ‘poor’ in technocratic, quantitative terms. As Beard points out, the Truman address can be understood as a kind of ‘christening’ in which the mass of non Western colonies and nation-states were suddenly called forth as ‘underdeveloped’

By the early 1950s, the notion of three worlds—the free industrialized nations, the Communist industrialized nations, and the poor, nonindustrialized nations, constituting the First, Second, and Third World respectively—was firmly in place. Even after the demise of the Second, the notions of First and Third worlds (and North and South) continue to articulate a regime of geopolitical
representation.

Development was also justified on additional grounds, particularly the urgency believed to characterize the “population problem.” Statements and positions regarding population began to proliferate.

Rich countries, however, were believed to have the financial and technological capacity to secure progress the world over. A look at their own past instilled in them the firm conviction that this was not only possible—let alone desirable—but perhaps even inevitable. Sooner or later the poor
countries would become rich, and the underdeveloped world would be developed. A new type of economic knowledge and an enriched experience with the design and management of social systems made this goal look even more plausible.

Although the 1970s ended with postcolonial capitulation to the new age of neoliberal globalization, the decade had begun on a very different note: with a radical call from the Global South for a New International Economic Order (NIEO). Announced in the UN General Assembly with the Declaration on the Establishment of a New International Economic Order (1974) and the Charter of Economic Rights and Duties of States (1974), the NIEO was conceived as the international corollary to the domestic projects of socialism. In its ambition to transform international economic relations, the NIEO addressed critical issues that included the ownership of resources in land, space, and the seas; the growing power of transnational corporations; and the transportation of goods in an increasingly globalized commodity chain. At its core, however, the NIEO was concerned with the unequal relations of trade between the Global North and South. 

Why does this matter?

In the development discourse, the causes of poverty are generally ascribed to local/national causes (political institutions, absence of infrastructure, values and culture) and the geographic causes (natural endowments). For example, there was a study by Prof. Robert Putnam, described as the most influential academic in the world today, that compared economic wealth of the north of Italy than the South of Italy and the argument that the author made was (i) northern Italy has developed faster than southern Italy because the former was better endowed with social capital; and (ii) that the endowments of social capital across Italian territories have been highly persistent over centuries. Well, when we treat international and the local as if they were two different silos or when the international normative order presents itself as national or local then we risk breaking the lines of global responsibility.

For instance, the global economy that international law has helped to create has further ensured international law’s percolation throughout the realm of the quotidian. Behind most of the products that we consume and the services that we use, it is possible to find a tumultuous array of international economic regulations, regional agreements and multilateral or bilateral trade investments. And even when this is not the case, when the international economic order is constrained by local tariffs and safeguards, what we find are national regulations that make products appear national, when in fact they are just as likely to be born of an intimate, ongoing conversation between local policies and international market forces.

The intertwined mimesis between the international and the national, and between the international and the global economy, is further complicated by the current role of local jurisdictions in the international order. During the 1970s and 1980s, at the time when nation-states and their bureaucracies and industries were being put through an intense process of structural adjustment, the idea of shifting the international project from the national to the local (i.e. to cities and municipalities) emerged in international policy circles and institutional discussions. At that point, the decolonisation movement had already altered the face and colour of the international order, bringing Third World nationalist claims to the forefront of international discussions. It was not only that the economy of Southern nations had been constructed over the preceding centuries such that they had little option but to remain primary commodity producers. And it was not just that their geographical make-up was often precarious, given the arbitrariness underpinning their colonial boundaries. Besides these concerns, Southern national governments also began to face an intense scrutiny by international institutions from the 1970s onwards due to their accumulated debt, rapidly growing urban populations, lack of infrastructure, high levels of informality, and lack of presence throughout their complicated human and physical geographies.

Take for example, the changed role of the IMF. It was set up to manage a system of stable exchange rates but it is now primarily associated with development financing. the IMFs prime tool of influence which is conditionality: the provision of credit only where the debtor country meets certain criteria, or enacts certain policies.  Although not designed to regulate foreign investment, the IMF has often required capital liberalization as a condition of credit, revealing the modern/traditional opposition as foundational. There are doubts whether the IMF is even allowed by its own constitution to do so. But even beyond that, a more basic point can be made about how loan conditionality is a form of individualised international governance.

In his 2002 book, Globalization and Its Discontents, Nobel Prize–winning economist Joseph Stiglitz denounced the fund as a primary culprit in the failed development policies implemented in some of the world’s poorest countries. He argues that many of the economic reforms the IMF required as conditions for its lending—fiscal austerity, high interest rates, trade liberalization, privatization, and open capital markets—have often been counterproductive for target economies and devastating for local populations. And even though they seem to be endemic across nations, these rather persistent ‘anomalies’ of our day are still often presented as intrinsic domestic malaises: products of bad internal policies, deficient local institutions, geographical shortcomings of particular countries or towns, or the result of low social capital or morally deficient local politicians. 

Unsurprisingly, the reallocation of international responsibilities to the domestic level is usually felt more painfully by those who are less able to cope with new international requirements and standards. And these are, again unsurprisingly, the same subjects with less financial ability to navigate across the local, national and international divides, and who are less able to separate domestic interests from international influences.

Guest Post: Legalizing the Special and Differential Treatment Norm in the WTO system

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-by Rakesh Roshan, National Law University Delhi. Views expressed by him are his own and not necessarily endorsed in this blog.

All is not well in the international trading system. The trade tensions between Developed, Developing Countries are widening on several key issues in the WTO.  Only recently, we witnessed increased unilateral trade measures and counter measures by states, deadlocks in the key area of negotiations and an impasse in the Appellate Body (AB), which threaten the very existence of the Dispute Settlement System (DSS) of the WTO.

That being said, several states have communicated reform proposals to the WTO to reach certain solutions to preserve the essential features of the system. Nevertheless, there is a stark difference in approach adopted in the proposals of developed and developing members of the WTO. For e.g., the proposal of the UK on the provisions of Special and Differential Treatment’ (S&D) reads:

“[developing-country] members should be actively encouraged to opt-out of  S&D, whether horizontally or agreement by agreement”.

Similarly, the proposal of Canada on S&D is “developing categories of need, differentiated by obligation, by country and by length of the transition required, to be applied based on evidence of need and subject to negotiations”.

On the contrary, the delegation of China, India, South Africa, and the Bolivarian Republic of Venezuela communicated to the WTO that the self-declared development status of developing members is the integral part of the WTO framework.

It is pertinent here to note that the proposals of former are based strongly on the principle of transparency, openness and predictably, whereas the developing members proposals pay special attention to the importance of provisions on the S&D under the WTO framework. It is my understanding that the developed Members proposals give impression which will seriously undermine provisions of S&D and further continue such impasse.

In this light, the article seeks to address that firstly, the Developing Members characterizes S&D in the form of a right; secondly, the S&D has been understood as an integral aspect of the WTO and thirdly, the S&D is identified as a key factor in the development process of the WTO.

The S&D is understood as a special right of Developing Members which give Developed Members the possibility to treat them more favourably than other WTO Members. These special provisions include, e.g., longer time periods for implementing Agreements and commitments or measures to increase trading opportunities for Developing Members, etc. 

Most importantly, the ‘special position’ signifies the delay in economic development experienced by the Developing Members due to colonization. In fact, the oldest demand for Developing Members has been that the fact of the inequality of development should be reflected in legal norms. The United Nations identifies international trade as a ‘primary instrument for economic development’.

The WTO system recognizes the inherent gap of developmental dynamics between member states since the beginning. The Preamble reads “that there is a need for positive efforts designed to ensure that developing countries and LDCs should secure a share in the growth of international trade commensurate with the needs of their economic development”.

The Panel in Argentina-Import Measures while interpreting the preamblehighlights the positive role international trade can play as part of the development policies in the Developing Member States. Similarly, the Panel in Brazil-Aircraft (Article 21.5-Canada) referred to the Preamble in reference to Article 27 of the SCM Agreement and recognized that “subsidies may play an important role in economic development programmes of developing country Members’ and provides substantial special and differential treatment for developing countries, including in respect of export subsidies”.

The negotiation documents reveal that the S&D was understood as a core principle of the WTO in furtherance of economic development of Developing Members. The delegates of several member states like Senegal, Cuba, Kenya, Malaysia, India, Pakistan, etc. represented that [the] “objective included in the preamble to the Doha Ministerial Declaration was clear. One of them, as set out by the WTO Members, was to realise the greater participation of developing countries in international trade. So S&D was a right which developing countries had acquired in order to improve their effective participation in the multilateral trade system”.

In my view, the justification of S&D is based on the differences in the economic capacities of different member countries. Economic imbalances reduce the capacity of Developing Members to produce and to trade. Thus, Sonia E. Rolland argues that the S&D makes the rules of the WTO equitable and therefore gives it legitimacy.

The first US proposal (WT/GC/W/757) criticizes the practice of self-declared development status by Developing Members and argues that global north-south divide does not make sense due to ‘great development strides’. The second proposal (WT/GC/W/764) provides criteria which will exclude at least 34 Developing Members including India to not avail themselves of S&D in the WTO. Moreover, the EU uses the term case by case S&D and Canada have referred on the basis of ‘evidence of need’ in the Member State.  

The developed-developing states dichotomy has persisted to describe the contemporary global economy. The self-declaration of Developing Member status has proven to be the most appropriate classification approach to the WTO. Historically, it has been reflected in the negotiations and bargaining processes. The gap exists between the developed and developing Members is also evident in different development indicators which are widened over time and substantial during a time period.

Even though some Developing Members have succeeded in making considerable economic growth in past couple of decades, they have not managed to reach anywhere near the Developed Members despite significant efforts. For e.g. GDP Per-captia income in the US- $59,531; Canada- $45,032; Australia- $53,800; New Zealand- $42,940; European Union- $33,723 vis-à-vis in China- $8,827; Brazil- $9,821; India- $1,942; Indonesia- $3,846; South Africa- $6,151 is absolutely wide.

Some Developing Members even argue that they became WTO Member because S&D was part of trading rules, without which they may never have become Members. The Doha Developmental Round in 2001 “seeks to place developing countries’ needs and interests at the heart of the Work Programme”. Part IV of the GATT (Article XXXVI-XXXVIII) legally mandates S&D for Developing Members. Recently, at the 11th WTO Ministerial Conference, in the Ministerial Decision on Fisheries Subsidies, Ministers had recognized “appropriate and effective special and differential treatment for developing country should be an integral part of these negotiations”. Therefore, the Developed Members decision contradict with several other provisions of S&D in the WTO regime and other Regional Trade Agreements (RTAs).

Since the Uruguay Round, the Developing Members are able to bring their issues related to S&D treatment in the WTO collectively and tactfully. If we accept the S&D based on the evidence of need and subject to negotiations as offered by the Developed Members, the Developing Members will be making their case individually and not as a group. Such process puts Developing Members into less bargaining position. Therefore, the Developed Members are making an attempt to bring institutional change and divide Developing Members.

Finally, it is pertinent to note that the Developed Members have exercised their economic power to negotiate ‘reverse S&D’ for themselves. For e.g., the Aggregate Measurement of Support (AMS) entitlements in Agriculture, the Green Box on agricultural subsidies was tailored to suit unlimited subsidies by Developed Members. Data shows that the US and the EU have provided $119 billion and 61 billion Euros in the Green Box. The other such instances are evidenced in Special Safeguard Provision (SSG), Agreement on Subsidies and Countervailing Measure (ASCM), GATS and Nairobi Decision on Export Competition.

Therefore, the WTO was established with an objective for trade between member states and development of economic growth in Developing Member States through S&D and reform proposals of the Developed Members are inconsistent with such objectives.

While concluding, I’d like to draw attention to the fact that the Global Growth Forecast for 2019 and 2020 had already been revised downward in the World Economic Outlook, partly due to the negative effects of tariff increased in the US and China in early 2019.

In this tough time we expect Member States would act fairly, equitably and sustainably to achieve objectives of the WTO and save the International Trading System. We would like to see the deliberation will aim at “getting a direction on how to constructively engage on various issues in the WTO”, in the run up to the 12th Ministerial Conference of the WTO to be held in Kazakhstan in June 2020.

Police Brutality During CAA Protests: India and International Human Rights Law

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“We revolt ‘cus we can’t breathe”

Jerome Roos, Reflections on a Revolution

Images of police releasing choking clouds of teargas inside locked university libraries and hostels have become a symbol of the ongoing civil protests, and questions about whether India is complying with its international human rights obligations regarding the use of force by the police are now part of public debate. To say that this issue has been addressed by Indian Courts would be a gross overstatement. Recently, a bench of the Supreme Court observed that “courts can’t do much”  and would not give in to “bullying” in response to a request that it take suo moto cognisance of the widespread police brutality in Delhi. 

In this post, I will chart how the police has been violating international human rights standards. I would have engaged with the statements made my certain members of the leading party where they reject international standards as purely western conceptions, had it not been for their own atrocious human rights record that make any such statements suspect.  Moreover, as I argue elsewhere, the Supreme Court’s treatment of international law has been formally dualist but functionally monist. It has given effect to treaties that have not been incorporated in domestic law to enact a sexual harassment law, it has given binding effect to soft law to recognise “transgenders” as a third gender and ignored reservations to treaties to give compensation to prisoners. Thus, it is pertinent to remember that to ignore international standards especially ones that have been ratified by the legislature is a choice being made by the court today.

It should be acknowledged that the data I have on police use of force in India and globally, is remarkably poor. This is unfortunate because ensuring accountability is predicated upon accurate information. 

Now, first, although there is no specific international treaty regulating the use of force by Delhi police, the right of all people to express their ideas and opinions through the medium of protest is also guaranteed through a number of core international human rights provisions, including the right to free expression under Article 19 of the ICCPR, which has been ratified by India. Further, there are various soft-law instruments that help us flesh out the applicable rules. The two most relevant ones include the Code of Conduct for Law Enforcement Officials and the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. Article 3 of the Code of Conduct states that “law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty.” In turn, the Basic Principles establish that force may only be used “if other means remain ineffective or without any promise of achieving the intended result”. The principles of necessity and proportionality are well recognised in Indian jurisprudence. However, several reports and media outlets have documented the indiscriminate and excessive use of force by police officers (including but not limited to entering into University premises, indiscriminate attacks within the premises of the University including releasing tear gas in libraries, and brutal use of force against civilians)  in breach of the above mentioned standards. There are videos of the police lobbying teargas on people’s faces and beating up women. It is another question whether the visual field is neutral and independent of wider communal prejudices. Do you remember the Video footage that showed Rodney King on the ground, being beaten with batons by police officers and dragged on his abdomen? In the trial, the footage was presented by attorneys representing the police officers as evidence that the police acted in self-defence? The black male body was perceived as dangerous even when it is seen attacked. How different is this from the Indian Supreme Court claiming that it is being bullied by students?

The use of teargas by the Delhi Police also deserves scrutiny. Teargas has an interesting relationship with international law. The use of tear gas is prohibited in wartime both by the 1925 Gas Protocol and the 1993 Chemical Weapons Convention, ratified by India.  The 1993 Convention, however, explicitly includes a clause in Article 1(5), inserted at the insistence of the United States, stating that “Each State Party undertakes not to use riot control agents as a method of warfare.” This clause, by implication, signals a regime of permissibility for riot control agents — including tear gas — during peacetime. This has to be understood in light of the political-economic history of tear gas, particularly its deployment against colonial uprisings and independence movements. 

During World War I tear gases were generally used to get people out of trenches so that other forms of gas or artillery fire could be used on them. Later, in the Vietnam war, we see similar uses of tear gas. It was used to get the Vietnamese out of their bunkers, in order to gas them or to bomb or fire on them. These kinds of military uses are the reasons why that ban exists in warfare. Interestingly, when the Chemical Weapons Convention was negotiated in the 1990s, there was a lot of pressure to ban chemical weapons even by law enforcement. There were two major things that legitimated that shift from seeing tear gas as barbaric to seeing it as civilizing. First, the pushback the talk of a ban from various countries including the United States,  South Africa and some European countries which used tear gas to repress labor disputes and strikes. As Anna Feigenbaum documents, the UK was initially much more reluctant since they were much more present in the war and they were witness to the widespread condemnation of war gases. However, the colonial administrators found themselves encountering satyagraha or non-violent protests during the rise of independence movements in India which necessitated an alternative to shooting people since they still wanted to seem benevolent. Similarly, women were at the forefront of direct action protests in Nigeria and the British did not want to appear to be using violence against women. So tear gas again was posed as a solution to make the British look like they are benevolent colonizers. The idea that tear gas can be safe is premised on it not being a weapon – at least, not in a traditional way. Less lethal weapons can only make sense as something somehow benevolent if we believe in the fundamental logic, which is the same logic as torture. We don’t think of torture as being benevolent, but we’re using the same logic: how much pain can we cause somebody without causing whatever point of harm is no longer seen as humanitarian? So, how toxic can this be without making somebody choke to death? Tear gas is a weapon — it’s sold and traded by the arms industry — but international law is very careful to adopt this kind of technical language that pulls us out of thinking of it as chemical weaponry.

Now, while peacetime riot control, including the use of tear gas as a riot control agent, is not prohibited under any body of international law, the effects of tear gas on the enjoyment of individual rights fall within the scope of international human rights law. In addition, if used as part of a widespread or systematic policy against a civilian population, the use of tear gas can come under the scope of crimes against humanity. Thus, states have come up with  international guidelines contain more specific regulations. For instance, the recently published Guidance on Less-Lethal Weapons in Law Enforcement, issued by the OHCHR, contains a series of provisions concerning the use of impact projectiles, including teargas. The document is based on international human rights law and is aimed to supplement and complement both the Code of Conduct and the Basic Principles. 

A combined reading of the above guidelines establish  circumstances of “potentially lawful use” that require officers to ensure that there is a way for a crowd to disperse; that the area is well ventilated; and that the gas is fired into the ground in front of protesters, not in the air or at their heads—especially when the canisters are large and may be lethal.The Delhi police has clearly flouted the guidelines in place by lobbying teargas in enclosed spaces and firing directly and indiscriminately at protestors. This is likely to implicate India’s international responsibility. South Korea came under increasing international pressure for its similar use of the chemical weapon against student protesters, as did Israel for deploying tear gas against Palestinians during the First Intifada. 

While the protests are still ongoing, it is not clear whether the Government or the Court is willing to take measures to limit the action of the Police pursuant to the relevant standards of international human rights law. But when tomorrow comes, let us remember that these were choices that were made every single day.

Critiquing the Mainstream Feminist Narrative of Sexual Violence in Conflict

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Feminist legal theory came to international law and discourse later than it came to many other legal fields, but in a surprisingly short amount of time, it went from being extremely marginal to relatively mainstream. As Halley and Kotiswaran note, anything involving sexual violence has been at the forefront of a carceral impulse. I will be questioning the intellectual assumptions that underlie the mainstream feminist consensus on sexual violence in international criminal law. In doing so, I make no pretence of having a lock on the normative assessments of feminism- the idea is simply to start a discussion on some ignored aspects. Further, I focus on feminism because it matters to me so much and not because its will to power is more suspect than other aspirational projects.

Progress narratives suggest that the recent proliferation of international criminal courts and tribunals complements the institutional legacy of the Nuremberg trials as the first international success in imposing individual criminal responsibility for war crimes and crimes against humanity. However, feminists argue that both rape committed by the Axis sufficiently and those committed by the Allied powers were ignored at the International Military Tribunal for Nuremberg because it would not have served the political interests of the time. In a nutshell, their argument is that sex violence was so ubiquitous that any attention to sexual violence on the part of the Axis powers would require an attention to sexual violence on part of the Allied powers, producing what Sarah Nouwen and Wouter Werner have referred to as a kind of Schmittian distinction between ‘friends’ and ‘enemies’ of the ‘international community’. Interestingly, the whole premise of the Nuremberg judgement was precisely to say that it wasn’t just that Germany tortured people but “they usurped the form of the German state for territorial expansion”. Moreover, this narrative suggests that all reasonable women who experienced sexual violence during conflict, would, if given the opportunity, opt for a criminal remedy.

In any case, these feminist critiques laid the groundwork for the early jurisprudence of the both the ICTY and the ICTR where there was a doctrinal recognition of rape as a war crime, a crime against humanity, and, at least in the ICTR, genocide. The primary issue that plagued feminists was whether rapes of Bosnian women should be treated differently from rapes of Serbian women and whether they should be treated differently from rapes that happen in all wars. Catherine Mckinnon was one of the most vocal proponents of rape as genocide. She attempted to articulate an international legal understanding of rape that would not distinguish between everyday wartime rape and rape committed by the Serbs. Interestingly, other feminists responded to this not on the issue of whether rape had been used as genocide but whether a focus on genocidal rape would render rape invisible. Strategically, the rhetorical connection of rape to genocide suggested that it too was a jus cogens violation and thereby bought more media attention to rape in wartime.

This turn to individualized punishment in the international sphere is understood to be synchronous with the institutionalization of individual human rights. Feminists agreed that prosecution was the only way to achieve justice and were not shy to claim credit for this. Hilary Charlesworth notes: “This recognition [of sexual violence as a potential crime of genocide, a crime against humanity, and a war crime in the statutes of the two ad hoc tribunals and the ICC] was the result of considerable work and lobbying by women’s organizations …” To the end criticisms were voiced was that the tribunals did not go far enough, and not that they went too far.

Genocide, unlike aggression, is actually a prohibited means of waging war. According to Article I of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, genocide can take place during peace or war. In this way, the Convention departs from the Nuremberg paradigm where crimes against humanity have to be committed during aggressive war. This distinction is precisely what feminists were looking for. This is particularly evident when Catherine Mckinnon talks about the Yugoslavian conflict. As Karen Engle notes, she talks about it in ahistorical terms, as motivated by genocidal intent rather than a conflict between emerging sovereigns in the aftermath of the Cold War. Drawing upon Susan Woodwards work, the point is not that genocide did not happen but the language of ethno-nationalism was a language that was abstracted from the political and economic reasons for war. Further, Engle demonstrates how the term “genocide” was used in numerous ways and often hid problematic suppositions of the cultural, political, and genetic effects of rape of Bosnian women by Serbian men.

Moreover, it gave legal purchase to the idea of rape as an exceptional harm, as a “fate worse than death.” The idea that there is a particular harm associated with sexual violence in wartime, and that it disproportionately affects women and girls is both factually and normatively debatable. It is true that over the years, stereotypical and patriarchal notions have developed with regard to women’s sexual behaviour and most of these notions are based on the assumption that the chastity and virginity of a woman are her most important “assets” leading to the conclusion that since rape robs women of these “virtues”, it is comparable or worse than death. This description of the harm also follows the reasoning of the International Criminal Tribunal for Rwanda in its conviction of Jean-Paul Akayesu of responsibility for acts of rape that were found to be constitutive of genocide, in part because of the public humiliation brought by the rapes and the resulting ‘physical and psychological destruction of Tutsi women, their families and their communities’. Thus, both the ICTY and ICTR have not only reinforced that assumption of individual and communal shame, they have attributed the shame to culture. In doing so, they have arguably suggested that certain ethnic groups are responsible for their own genocide or attempted genocide, by presuming that communities are torn apart as they shame and are shamed by women and girls who have been raped. This arguably reinforces, rather than undermines, the problematic assertions about culture from an earlier era.

Further, current legal doctrine exceptionalizes wartime rape in a manner that distracts from broader justice considerations, including policy questions about the justness of the underlying armed conflict itself. In so doing, I argue, we risk undermining the capacity for political agency of the women we study. This suggests that the women’s experience of war was simply of victimisation, rather than agency and participation. Historians have already questioned this myth but this scholarship has been relegated to the margins. The margins’ is a familiar realm for women and their histories, isn’t it?

‘The crimes of which these women were convicted ought to be unimaginable,and will remain, here at least, unprintable.’ 

Women in Nuremberg , IntLawGrrls – a US-based website on women and/on international law seems to concludes, somewhat abruptly, the succinct treatment devoted to women perpetrators of international crimes. As with the other accounts in this post, these expectations of course have a history. 

Wendy Lower and Elizabeth Heineman, both feminist historians who have really been trying to unpack the complexities of law and politics during the period, assert that in both general histories of the Holocaust and studies of Nazi women, scholars have greatly underestimated the role these women played both during and after the war. Lower shows that the Nazi genocidal system could not have functioned without the participation of the thousands of women who filled key positions in the Nazi hierarchy as both helpers and overseers. Heineman similarly shows that women’s paid work and labor for the state bureaucracy and not just their reproductive capacity were crucial to carrying out Nazi agenda.

Suddeutsche Zeitung was a book released anonymously that depicted the Soviet rapes. In the diary, the woman records multiple rapes of herself and others by Russian soldiers. She also describes how, on several occasions, she made calculated decisions to agree to and even seek out sexual acts for food, money, and protection. Years later it was revealed that the author had published during the Nazi years, and that at least some of her Nazi- era writings conveyed the excitement surrounding that movement. Does being raped mean that she loses her political identity?

This forces the reader to question the perpetrator–victim dichotomy and displaces the masculine myth that sees war as simply a masculine front. The feminist truism that women did not and do not participate in the war as anything other than victims is simply not historically true. This requires a move from a perpetrator/victim dichotomy to a more complicated relationship between vulnerability and privilege. Overstating gender differences through the universalizing of harms experienced by women in war is likely to lead to the proliferation of legal rules and popular understandings that further entrench the power dynamics we seeks to combat. As Heidi Matthews documents, many women, certainly not all, were more committed to the political potential of the new socialist era that they would be willing to forgo their particular trauma in terms of a carceral solution.

Feminism is by aspiration an emancipatory project and feminists have been, in some cases, highly successful in changing laws, institutions and practices, very remarkably often for the better. However, like any socio-political project it has unintended consequences. It is a recognition of women’s agency, which permits us to see both troubling and admirable choices, even by subjects with a limited range of motions, that I believe a feminist theory of international criminal law must account for.

French Food is Ethnic too: Analysing The Sources Doctrine in International Law

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Nehru’s “Glimpses of World History” was mandated reading in my school. For the unfamiliar, the book is a collection of letters, Jawarharlal Nehru wrote for his ten year old daughter Indira, during the many years he spent in prison for the “crimes” he committed during India’s struggle for independence. However, the letters from Nehru to his daughter were published almost the moment they were written, suggesting that they were intended for a wider readership. As noted by Sundhya Pahuja, in his letters, Nehru used history-telling both critically, to cast doubt on the authority of imperialism and imperial law, and creatively, as a way of re-authoring the ‘world.’ Not a third way a la Giddens or Beck, but something else, away from the two sides of the coin of the European enlightenment.

However, the tone of the book itself seemed too overtly didactic to capture the interest of my teenage rebel without a cause self. Moreover, Bengalis of all stripes and ideologies seemed to dislike him for mutually contradictory offences.

Thankfully neither nostalgia nor romance is needed to question whether these can be regarded as sources under international law? If not why?

This methodological invitation runs against the grain of traditional ways of studying and engaging with international law. The classic doctrine of sources, as it was developed in the nineteenth century, and later codified in Article 38(1) of the ICJ Statute, entrenches international legal discourse and argumentation in the historical and contemporary behaviour, will and interests of states. The consecration of the sources doctrine was in many ways an exercise in cherry-picking source material in the pursuit of new doctrinal boundaries and hierarchies. History remains tightly woven into the fabric of international law, and much like memory, history too celebrates its own ideological and political ends.

International law, according to Article 38(1), is that to which states consent to be bound, either explicitly (through the conclusion of treaties) or implicitly (through their words and acts). Yet the positivist notion of history implied by this doctrine is a notoriously problematic one. In the first place, the consent of states is understood to be of overwhelmingly primary relevance when compared to that of other entities, such as individuals or ‘peoples’. In the second place, as Koskenniemi has pointed out, the doctrine provides no plausibly ‘positivist’ way in which to legitimate this restriction. Moreover, its narrow set of (European male) authoritative figures – such as Vitoria, Suárez, Gentili, Grotius, Vattel, and Pufendorf, to the exclusion of a range of different actors and voices.

By feeding into the classical doctrine, we, whether consciously or not, feed into predominantly Eurocentric narratives which tend to ignore the discontinuities in history, adopting a naturalized approach which typically constructs the ‘evolution’ of international law as an enlightenment narrative of progress. Take for example, what we’re taught about the “birth of” international human rights law:

1789 : American Declaration of Independence + French Déclaration des droits de l’homme et du citoyen

1948 : Universal Declaration of Human Rights (UDHR) and the completion of the International Bill of Human Right

1976 : International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR).

This exaggerates the continuity and consistency of human rights, while down- playing the historical discontinuities, conceptual inconsistencies, linguistic incoherence, and paradoxical disjunctions that are notoriously endemic in the languages, laws, and practices of human rights. When examined through the lens of orthodox sources doctrine, this restriction is – once again – valid: the only ‘nations’ to have existed as full law-making subjects for the best part of these six centuries as far as mainstream international law is concerned were either European states or neo-European settler states.

Attempts at diversifying the relatively static historical engagement with international law have grown considerably in the last two decades. New and varied histories of different and previously uncharted areas of international law have prompted a re-examination of the ideas, figures, structures, and theories embedded in the field of international law, taking into account the broader social, political, and intellectual context of legal ideologies and especially areas such as international relations or political theory and philosophy.

‘Is it actually possible to liberate the historiography of international law from the constraints of sources doctrine without transforming it into a historiography of something else?’ (Rose Parfitt 2014)

Or, in other words, how and to what extent scholars can dispense with Eurocentric markers and periodization of dominant linear disciplinary narratives without ‘throwing the proverbial baby out with the bathwater’?

Some scholars such as Luis Eslava, Madelaine Chiam, and Charlotte Peevers have purposefully abandon the conventional sources doctrine, writing new histories in international law, focusing on ‘other’ sources, or in their case archives. However, often-voiced critique directed at such scholars is that they neither do history ‘proper’ because of the explicit critical and theoretical engagements in which the past/present distinction is collapsed, nor do they do international law ‘proper’ because the historically and theoretically infused methods and analysis make use of sources and arrives at conclusions considered too unconventional.

But even if it were possible to repudiate ‘Sources Doctrine’ as European, such a refusal need not be holus bolus in principle, nor is wholesale repudiation a freely available choice.

To this end, some scholars, such as David Kennedy, have opted for a highly contextual response, situating the decisions, rules, incidents, participants, and institutions of international law within the particular confines of the times in which they occurred and, in doing so, looking to a wide range of texts and participants for evidence. This has been described by Koskenniemi as ‘mak[ing] that which presents itself as universal [understandable] as contextually bound’, to show, as he puts it, that ‘French food is ethnic too’.

This kind of approach reminds me of another author I grew up reading in Calcutta- Arundhati Roy. In her book, Broken Republic, which deals with the struggle of Dongria Kondh against a mining company called Vedanta’s over the Niyamgiri mountains, Roy points out many times that for the Dongria, the mountain is a Mountain of Law. From the perspective of the indigenous people, the situation represents a violent clash of laws. The State and its laws are not a social fact for them. This challenges the idea that states are independent juridical-institutional formations that come into being once they are formed in ‘fact’ and which are only later ‘recognised’ as a matter of international law and it becomes increasingly clear that the concept of statehood is not universal or obvious but reflects the social transformations and Eurocentric cultural understandings prevailing at the time. As Anne Orford has argued, ‘constituting order’ has been a central preoccupation of both nation-states and international lawyers from the seventeenth century to the present day.

Another interesting take is offered by the work of Arnulf Becker-Lor who argues that Eurocentrism is does it fit with conventional international legal sources doctrine if we care to take into account all relevant sources that the sources doctrine avails us. What differentiates his work from the mainstream is the re-evaluation of conventional sources that have so far been dismissed from the agenda of canonical narratives on the history of international law and present day international legal practice, either because they do not fit with the notion of ‘progression’ or because they are considered ‘minor’ or ‘other’ histories in the general trajectory of international law. Understandably, Becker-Lorca’s scholarship has also been well received outside of critically inclined scholarly circles.

It is relatively clear why we should be uneasy with the idea of opening up the sources doctrine is an automatic and universal cure to crises, imperialism or injustice. But it might be a useful first step to rethink our own biases and assumptions. The ways this conversation should unfold, I believe, is to look at both “moments of regress” as opposed to only moments of progress, be receptive to counter-narratives, voices silenced and routes not taken.

ICC, Complementarity and Africa

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In recent years, the ICC has been the subject of increasing scrutiny and criticism in international criminal-justice discussions. At the political or ideological level, these have tended to focus on the relationship between the ICC and other bodies, such as the African Union (AU) and the UN Security Council. In the context of the former relationship, the fact that the ICC has so far investigated crimes and prosecuted perpetrators only in Africa has led the AU to suggest that the ICC has an anti-African bias and an imperialist inclination. At a more doctrinal level, the discussions surrounding the ICC have focused on specific principles and obligations, such as complementarity and cooperation. The concept of complementarity states that states have a priority in exercise of criminal jurisdiction over crimes and the ICC can only intervene in the face of inaction by the states.

In this post, I will demonstrate how this seemingly simple idea has met with resistance from the Global South, particularly African states. In doing so, I stand on the shoulder of giants, in particular Dr. Sarah Nouwen, Cambridge University, who does an empirical analysis of complementarity’s life in Uganda and Sudan and Balakrishnan Rajagopal, MIT. At the outset, it is not my claim that all people in Africa have the same world view nor that there is a radical difference between the Global North and South. Further, in this post I will only be analysing the Court’s involvement in Uganda which is one of the earlier situations and, particularly, with respect to the role of the ICC itself in bringing the matters within its jurisdiction, it should not be too hastily assumed that whatever conclusions can be drawn from the Court’s involvement there are generally accurate.

In its preamble, the Rome Statute emphasises that ‘it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes’ and that ‘the International Criminal Court … shall be complementary to national criminal jurisdictions.

Further, Article 17 of the Rome Statute provides that the court ‘shall determine that a case is inadmissible where’, among others, that ‘case is being prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable to genuinely carry out the investigation or prosecution.’ The Rome Statute addresses in great detail these inadmissibility aspects of complementarity, including, for example, descriptions of what is meant by unwillingness, and how the admissibility of the court, including on the grounds of complementarity, can be challenged. It does not, by its terms, establish national jurisdiction, create obligations independent on states, nor does it require states parties to establish national jurisdiction over Rome Statute crimes.

However, the meaning of the complementarity has shifted away from a simple rule about admissibility. This is partly due to influential actors such as international non-governmental organisations (NGOs) and the OTP who have promoted normative agendas beyond the framework of the ICC that impose on states the responsibility or obligation to investigate or prosecute crimes within the ICC’s jurisdiction. In truth, this invented tradition of complementarity as establishing a legal obligation has, in fact, managed to find itself into judicial decisions, including in South Africa.

Now, the concept of complementarity is important because the ICC has concurrent jurisdiction with national jurisdictions. Interestingly, other international criminal tribunals such as the Special Tribunal for Lebanon, ICTR and ICTY have a primacy principle wherein these tribunals are accorded priority over the jurisdiction of national courts.

As per Dr. Nouwen findings for her thesis, Complementarity in the Line of Fire, governments in Africa have sought recourse to the ICC as a means to legitimise their own military approach to its Western allies. This has met with local resistance as the locals who suffered at the hands of both the government army and the counterinsurgent groups proposed own traditional justice and reconciliation mechanisms as an alternative.

Take for example, the “Situation in Northern Uganda” which was referred to the International Criminal Court (ICC) in 2003 by the Ugandan government itself upon invitation, and was to be the ICC’s first big case. The Ugandan government was easy to convince because they believed the referral would assist military efforts.

This self referral upon invitation is critical to another ranging debate concerning the so-called Africa bias since the ICC’s response to the charge of bias is, in part, to refer to the fact that most situations on its docket are the result of self-referrals by states. But from the perspective of complementarity, it raises issues concerning the validity of the assertion that justice must be done domestically first and at the ICC only as a last resort.

Moreover, this referral was met with strong resistance from the Acholi people, an ethnic group from Northern Uganda from where many LRA fighters originate. This is noteworthy because the Acholi people were the victims of the atrocities. Essentially their argument was the following: convictions in criminal trials are not a universally recognised approach to justice, and among the Acholi, there are other ways of doing things ; reconciliation is preferred to retribution, and amnesty and truth telling are much more acceptable than punishment of the guilty, particularly if those that have suffered can receive some form of compensation. In March 2005, six Acholi community leaders from northern Uganda went to The Hague to try and persuade the ICC prosecutor to discontinue his proceedings in northern Uganda. There was a meeting between the Acholi leaders and the ICC Prosecutor, which ended with both parties issuing separate press statements. The Acholi leaders stated that they had asked the Prosecutor ‘that he is mindful of our traditional justice and reconciliation process and that he is also mindful of the peace process and dialogue.’ On his part, the Prosecutor echoed that he was ‘mindful of traditional justice and reconciliation processes and sensitive to the leaders’ efforts to promote dialogue between different actors in order to achieve peace’. But he also reiterated that he had ‘a clear policy to focus on those who bear the greatest responsibility for the atrocities committed’.

A similar point has, of course, been made in other places that international criminal justice mechanisms have been introduced, notably Rwanda and Sierra Leone, but in Uganda the lobbying for recognition of local, traditional and restorative judicial approaches has been intense. Also the ICC has been found to be more vulnerable to the argument than the other international courts and tribunals. This ties in with the point I made earlier, i.e., unlike other international criminal courts and tribunals, the ICC statute requires it to complement national judicial processes whenever possible.

According to many human rights activists, the Acholi mechanisms did not meet the standards of complementarity. An ICC judge, indeed the Ugandan judge, publicly stated:

Crimes against humanity, genocide, aggression against other states and war crimes are internationally condemned and cannot be tried by traditional courts but by the ICC … You cannot expect someone who caused the death of 100 people to be tried in a traditional court if you are looking for justice to be done … You must convince the international community that justice was done and that the punishment is proportionate with the crime.”

Similarly, NGOs stressed that traditional justice fails to meet ‘international benchmarks.’ In other words, the Acholi processes needed to mirror the ICC proceedings for it to render the ICC’s case inadmissible on grounds of complementarity. At the cost of reiteration, it is crucial to remember that the Rome Statute, primarily regulating proceedings before the ICC, is relatively silent on domestic proceedings. It provides only that, to render an ICC case inadmissible, domestic proceedings in that case must be genuine.

This reminds me of Martin Koskenniemi’s “politics of definition” or the strategic practice of defining international situations and problems in new expert languages so as to gain control over them, and the “politics of re-definition” which involves strategic definitions of situations by reference to a technical idiom so as to secure the application of the expertise related to that idiom with all its structural biases. 

Similarly, Acholi justice and reconciliation mechanisms were evaluated from the perspective and within the framework of ICC-style justice. Rebutting that argument required mastering the language of international law, a skill that very few had. Whilst I do not particularly take issue with the politics of this sort of stratagem and whilst it may be part of a well-intentioned drive to help states be “safe rather than sorry”, this does raise strategic issues about what is fair to bundle as part of implementation. The push to “mirror” the Rome Statute domestically is part of a universalizing drive that overstates the homogeneizing requirements of the struggle against impunity beyond and even in contradiction with complementarity. In essence, the risk is that complementarity will be used to occasionally implement a liberal orthodoxy about what international criminal law should be in Africa, caricaturing the reality of complementarity.

The ICC is supposed, after all, to offer the state of the art in terms of substantive definitions and procedural due process. But the truth is the ICC is an imperfect institution, meant to operate in a very specific environment. It is neither the whole of international criminal law, nor in some cases the best of international criminal law. An excessive drive to homogeneization, masked under the tag of complementarity, will reduce the inherent diversity of the world’s legal traditions, some of which are no doubt a threatened species in an era of globalization.

The Balakot Strikes: India’s shifting position on self defense?

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“Who killed Article 2(4)?”

This is how Professor Thomas Franck in 1970 framed the perceived erosion of the legal prohibition of the use of force especially in the context of the armed conflicts then taking place in the Middle East. Recent events in the Indian Subcontinent awaken the memory of this question. 

On 14 February, a suicide attack was conducted in Indian controlled Kashmir took the lives of over 40 Indian paramilitary soldiers. A Pakistani based terror group Jaish-e-Mohammad (JeM) claimed responsibility for that. This led to an escalated military situation between India and Pakistan. In response, on 26th February 2019, India conducted air strikes in Balakot. The details of this airstrike remain unclear. India initially claimed that the strike was aimed at a training facility of JeM and that many members of this group were killed in the process, while Pakistan denied this. Journalists tried to bring clarity to the exact set of facts. There is not a lot of evidence that it was a training facility and locals say that it was an abandoned school.

The following day, Pakistan responded with an air strike of its own, this time deliberately not targeting any particular military or civilian building or object. During an ensuing confrontation, Pakistan shot down an Indian Air Force MiG-21 jet and the pilot was captured for a brief period and then released. Meanwhile there was artillery fire across the Line of Control, killing atleast 6 civilians and 2 Indian soldiers. India has also claimed to have shot down a Pakistani fighter jet which had fallen on to the Pakistani side of the LoC. After the pilot was returned, military action subsided.

Contrast this with India’s actions in 2008 when another non-state actor based in Pakistan, Lashkar-e-Taiba (LeT), carried out coordinated attacks at several sites in Mumbai that left 174 people dead. India complied with international law restrictions on resort to military force, opting for law enforcement measures instead. Those had success and trials continue in India and Pakistan of persons suspected of involvement.

At the outset, I will make no effort here to assess India or Pakistan’s factual claim, but instead examine whether there is a subtle shift in India’s understanding of international law—one that may significantly increase the risk of escalation. As the incident directly involves the use of military force by one state against the other, any attempt to evaluate the incident and the developments that followed entails the analysis of jus ad bellum, the body of international law governing the permissibility of the threat or use of armed force by States.

Article 51 recognizes “the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations.” India noted that the framers of the Charter never intended Article 51 to cover anything beyond its text. Significantly, the Non-Aligned Movement in 2005 issued a position paper emphasizing that: ‘Article 51 . . . is restrictive and recognizes ‘the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations.’ This Article should not be re-written or re-interpreted. This is supported by the practice of the UN . . .’.

It seems hard to reconcile this view with India’s Foreign Secretary’s statement in light of the Balakot strikes.

India’s legal justification (or lack thereof)

India, in explaining its actions, had a rather unusual formulation. Below are certain extracts of the Statement made by India’s Foreign Secretary:

India has been repeatedly urging Pakistan to take action against the JeM to prevent jihadis from being trained and armed inside Pakistan. Pakistan has taken no concrete actions to dismantle the infrastructure of terrorism on its soil.


[…]


Credible intelligence was received that JeM was attempting another suicide terror attack in various parts of the country, and the fidayeen jihadis were being trained for this purpose. In the face of imminent danger, a preemptive strike became absolutely necessary.

[…]

The Government of India is firmly and resolutely committed to taking all necessary measures to fight the menace of terrorism. Hence this non-military preemptive action was specifically targeted at the JeM camp. The selection of the target was also conditioned by our desire to avoid civilian casualties.”

Three features of this statement require closer reading. First,  most commentators who have discussed this think that the term “non-military” was just meant to emphasise that the strike was not targeting Pakistani military. The rationale being it would contribute to the legal justification of the strike but how exactly it would do so is not clear. India might have been suggesting that it was not even a use of force against Pakistan as there was no engagement between the armed forces (or militaries) of the two States, so the prohibition on the use of force under the UN Charter would not even be implicated or they could be saying that there is no reason for Pakistan to retaliate because none of its soldiers or military facilities were targeted. While some scholars have looked at the language of Art. 2(4) of the UN Charter which talks about the use of force against the “territorial integrity or political independence of another state, or in any other manner inconsistent with the Purposes of the United Nations,” and have tried to argue that, in principle use of force might not fall under any of these categories and thus, there is no need to justify it as self-defense. However, the text and preparatory work of the UN Charter makes it fairly clear that Art 2(4) was intended to be a comprehensive prohibition of the use of force and that these terms—territorial integrity, political independence, inconsistency with purposes—do not limit the scope of the prohibition, but instead underscore its breath. In accordance with the will of the creators of the UN Charter, it is rightly no longer seriously contested that the use of force in foreign territory or against otherwise protected positions of a foreign State is subject to the prohibition of the use of force, regardless of the objective pursued by the use of force. 

Second, with its language, India certainly seems to be stating that, so far, Pakistan has been unwilling to act against JeM, therefore, India has the legal right to resort to military force against it.  For one, this would bring India’s rationale closer to the mainstream position. For the most part, powerful states (United States and its allies) have relied on the “unwilling or unable” approach when using armed force on the territory of weaker states (Syria, Pakistan) who would be foolish to respond with armed force in turn. At the same time, others have objected that the U.S. position fails to even address the most basic questions that any viable doctrine of self-defense must persuasively answer: what, exactly, happens to the territorial state’s right not to have armed force used on its territory and what, exactly, happens to the territorial state’s right of self-defense against an armed attack by the intervening state?

In any case, unlike the United States and its allies which have been explicit about what they take to be their legal basis making it easy for us to look at their practice under a legal heading, the statement from India provides no clarity as to what its legal rationale is.

Third, the use of the term “pre-emptive” is interesting but it bears no legal significance. The existence of a right of pre-emptive self-defence has long been controversial. In fact, as Tom Ruys carefully analyses in his book, several states, including the Pakistan and India, have previously gone further and combined a rejection of the interpretation of Article 51 in the two Reports with an explicit affirmation that self-defence could only be exercised in response to an actual armed attack. An arguable case can be made that such a right exists if an armed attack against a State is imminent.  With respect, the Foreign Secretary’s statement conflates the imminence of an attack with the immediate necessity of defensive action. The question “Is an attack imminent?” is quite distinct from the question “is defensive action necessary now?”

In many cases, the imminence of an attack and the immediate necessity to take defensive action will coincide. However, in some cases, they may come apart. In some cases, an attack will occur quite soon (say, in a matter of hours), but there will be a clear opportunity to prevent the attack until minutes before it is launched (say, by a drone hovering overhead). In other cases, an armed attack will not occur soon, but the last clear opportunity to prevent the attack may be about to end.

Though the Foreign Secretary said they have credible evidence that JeM was planning another attack, the rest of their statement makes it hard to take what they’re saying at face value. It seems like what they were really trying to do was trying to identify training facilities the group uses to deal with a long term security problem. Take for example, the interesting admission that the target was selected in particular to avoid civilian casualties. This suggests there was a choice of target and it was not that an imminent attack was going to arise out of any one of these targets or a combination thereof. It seems more likely that India was either sending a message to Pakistan or causing some damage to JeM which posed a long term security threat than responding to an imminent threat.

It must not be ignored that any advancement in the timing of preventive action increases the risk of error or rather, erroneous forecasting. This risk can be illustrated by a historical precedent, the grave consequences of which continue to this day: Israel justified the beginning of its military operation in the Six Day War of June 1967 under international law by the decision made in the previous month by Egypt to close the Strait of Tiran to Israeli maritime traffic. However, Israel was also clearly pointing to a future armed attack by Arab States under Egyptian leadership, whose imminence was indicated by not a few signs. However, until now it is unclear whether Gamal Abdel Nasser had actually made this decision and was about to attack Israel. In the recent literature, such a decision is sometimes strongly put in doubt. In view of the present state of the discussion it can therefore not be ruled out that Israel waged the Six Day War on the erroneous assumption of having to prevent an armed attack.

It is also crucial to note that India did not comply with its Charter-based obligation of reporting its actions to the UN Security Council, which makes its legal justification even murkier.

In this aftermath of this incident too, India’s more lawful alternatives would have been to engage in bilateral resolution and through a peaceful settlement resolve the dispute about what India perceives as Pakistan’s unwillingness and inability to suppress armed groups and if that fails seek the resolution of the dispute through the UN Security Council which is charged with dealing with long term threat.

So, does India’s actions contribute to the formation of new customary law?

This question is important because customary international law on the use of force is often treated, in both theory and practice, as a key means to help resolve legal disputes, fill-in perceived gaps in the law and further develop doctrine.

However, in my opinion, fortunately, or unfortunately, India does not contribute to the formation of customary international law.

This is because there are three crucial questions that remain unanswered.

  1. Whether it was truly defensive?
  2. If it is state practice, then what is it practice of?
  3. What is the rule or principle that India accepts as law?

It would be decidedly too complimentary to claim that the Indian government made a serious attempt to justify its use of force under international law in its statement. Nor do the laconic factual assertions give the impression that India placed any significant emphasis on the prohibition of the use of force in its strike decision.  As to why India, once an enthusiastic participant in the study and formation of international law, seems to neglect it in its diplomatic overtures today- this might be a question for another day.

Guest Post: Indian Courts and Jus Cogens

-Chhaya Bhardwaj, Lecturer at O.P. Jindal Global University

The concept of jus cogens norm was first codified under Article 53 of the Vienna Convention on the Law of Treaties, 1969 (VCLT), to which India is not a party. A peremptory norm of general international law (jus cogens) is a norm accepted and recognized by the international community of states as a whole, as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. The United Nations International Law Commission (UN ILC) has recognized that jus cogens norms are hierarchically superior to other norms, are universally applicable and reflect the value of the international community. An illustrative list of jus cogens norm recognized by the UN ILC includes prohibitions of aggression, torture, genocide, crimes against humanity, apartheid and racial discrimination, slavery and right to self-determination.

Indian practice in relation to specific peremptory norms has not received much attention in scholarly articles. This article attempts to fill the scholarly gap by summarizing the recognition and understanding of jus cogens norm by the Indian courts. Before analyzing the position of Indian courts on recognition of specific peremptory norms, it is necessary to discuss India’s relationship with VCLT because it is the primary source of definition and interpretation of a peremptory norm. India has also appreciated and supported the application of VCLT to resolve disputes arising in relation to Jus Cogens norms, even though India is not a party to VCLT. India’s Supreme Court in Ram Jethmalani & Ors. v. Union of India AIR 2011 applied and interpreted VCLT. The court also recognized that VCLT codifies many principles of customary international law and provided a broad guideline for interpreting a treaty in the Indian context. In the Jadhav Case (India v. Pakistan) (para 71), the International Court of Justice applied the provisions of VCLT that reflected customary international law and those provisions of VCLT that were highlighted by the parties in their written submissions. Therefore, VCLT plays an important role for both- defining the peremptory norms and interpreting the peremptory norms (under international law in general) for India.

In relation to specific dictum of the Indian courts on jus cogens norms, India deviates from the UN ILC list of jus cogens. In addition to the listed norms, the report points that there is support for the peremptory character of the right to life. Indian courts have also applied jus cogens when interpreting “right to life” and rights related to its extension. Post-independence, i.e. after 1947, the Supreme Court of India has extensively applied and interpreted “right to life” which is guaranteed under Article 21 of the Constitution of India, 1949. In 1982, the Supreme Court in Bachan Singh v. State of Punjab AIR 1980 , while trying to strike a balance between death penalty and right to life, propounded the rule of “rarest of rare” by declaring the following:

“A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.”

The convict in Bachan Singh’s case had served life sentence for committing murders, before committing three murders again. Given the subjective factual circumstances of the case, the Supreme Court awarded the death penalty. Additionally, this decision considered the international law, vis-a-vis International Covenant on Civil and Political Rights of 1966 that also allows death penalty for the most serious crimes as a part of right to life.

While this decision above did not discuss if right to life could be characterised as a jus cogens, in State of Punjab v. Dalbir Singh AIR 2012, the Supreme Court declared the following:

“… the ratio in …Bachan Singh (supra)… has been universally acknowledged in several jurisdictions across the world and has been accepted as correct articulation of Article 21 guarantee. Therefore, the ratio in ….. Bachan Singh (supra) represents the concept of jus cogens meaning thereby the peremptory non-derogable norm in international law for protection of life and liberty.”

In Dalbir Singh, the court analyzed an appeal on an acquittal decision by a lower court. The acquitted was charged under section 27(3) of the Indian Arms Act, which imposed death penalty on person convicted of causing death by using prohibited arms or ammunitions. In this case, the universality of whether death penalty is a part of the right to life was tested by analysing judicial decisions of atleast 7 countries including the United States of America, Belize, the United Kingdom, Malawi, Uganda, Kenya, and Singapore.  The decision in Dalbir Singh has three impacts on Indian jurisprudence. Firstly, it recognizes that the right to life is a peremptory non-derogable norm. Secondly, the right to life as non-derogable norm includes imposition of death penalty in rarest of rare cases.Thirdly, this inclusion of death penalty is recognized universally.

Generally, the right to life based jurisprudential development is expanding and ever-evolving, highlighting the naturally growing dominance of this right in India. Article 21- right to life is the most widely interpreted right/law in India and many other substantive rights like right to livelihood, right to health, right to environment, flow from right to life. The 2018 General Comment No. 36 on right to life lays out the inclusiveness of this right because other rights like right to health and right to environment flow from it.

In June 2020, the Kerala High Court in Cry for Life Society and Ors. vs. Union of India and Ors. AIR 2020, further interpreted right to life and in its judgment discussed that “the rule regarding protection of life before birth could be considered as ‘jus cogens’ (final norm of general international law)”. The court’s discussion was based on whether a pregnant woman should be allowed to terminate her pregnancy if the baby was to be born with disabilities or due to other scientific grounds justifying termination of pregnancy. There is a life before birth which needs equal protection as life after birth and its protection should be guided by scientific information. This is a reasonable and scientific interpretation of the right to life under both domestic and international law of treaty interpretation.

The explanation of the right to life in India also includes a right to die with dignity, amongst other rights and should be concluded only in accordance with the procedure established by law. The continuation of imposition of death penalty for the most serious crimes in India is in alignment with the international legal framework on right to life which incorporates continuation of death penalty. There is a parallel global practice and demand to abolish death penalty in totality. However, at the same time imposition of death penalty is not completely forbidden by law, in fact, allowed in effect.  Implementing death penalty for crimes like genocide, crimes against humanity and other heinous crimes is an acceptable legal norm if a person is convicted of the crime. Therefore, in effect, imposition of death penalty may protect future deprivation of life and liberty of a few people. The Supreme Court of India in the Delhi Gang Rape Case, concluded that the case was “rarest of rare” and justified death penalty in the following words:

“The accused may be a menace to the society and would continue to be so, threatening its peaceful and harmonious coexistence. The manner in which the crime is committed must be such that it may result in intense and extreme indignation of the community and shock the collective conscience of the society. Where an accused does not act on any spur-of-the-moment provocation and indulges himself in a deliberately planned crime and meticulously executes it, the death sentence may be the most appropriate punishment for such a ghastly crime. The death sentence may be warranted where the victims are innocent children and helpless women. Thus, in case the crime is committed in a most cruel and inhuman manner which is an extremely brutal, grotesque, diabolical, revolting and dastardly manner, where his act affects the entire moral fiber of the society e.g. crime committed for power or political ambition or indulging in organized criminal activities, death sentence should be awarded.”

In the Nuremberg trial Judgement, the bench ordered death penalty for international crimes and stated the evidence for murder and ill treatment of civilian population was “quite overwhelming of a systematic rule of violence, brutality and terror”. The bench also noted that “the persecution of the Jews at the hands of the Nazi Government has been proved in the greatest detail before the Tribunal. It is a record of consistent and systematic inhumanity on the greatest scale.” It can be generally concluded, without much opposition, that the actions of Nazi Government constituted rarest of rare case of collective brutality and violence that shook the collective conscious of the globe. Therefore, death penalty of the perpetrators was justified on accounts of the rarity and gravity of the crimes. The Indian judicial system also adopts a similar approach for the rarest of rare criminal convictions, especially in cases involving crimes against women and children that continue to shake the global consciousness.

The implementation of death penalty is different in diverse jurisdictions given the context of a societal and political set-up. However, the fundamental concept is that death penalty is justified for a crime that shakes the consciousness of the world, affects the moral fiber of the society, and constitutes most cruel and inhuman actions. This concept fundamentally and evidently remains similar under international and Indian framework.  It is likely that recognition of Bachan Singh’s decision as one representing the peremptory norm could cause support and consequent development of “death penalty for most serious crimes” as a norm of peremptory nature. This norm can be of the “same character” as the ones absolutely recognized as jus cogens.

The application of peremptory norms of general international law by the Indian Courts to interpret ‘right to life’ is a progressive step and contributes to the Indian State practice on the peremptory norms. The other, more mainstream jus cogens norms like slavery, apartheid, crimes against humanity, genocide has not been in spotlight as far as India is concerned, not even historically. Therefore, Indian courts never had the chance to interpret other recognized norms. However, with a progressive analysis, the Indian courts continue to contribute towards recognition or development of  jus cogens norms, particularly the right to life.