Connect with us

International Law

The Unfinished agenda of 2016’ Global Politics and expectations of 2017

Published

on

The unstoppable flow of new issues in international relations (IR) always pushes aside present and past crises. The entrance of these modern day challenges occupy more of the international community’s resources and time, making other vital issues less important. Is this an organic design, and the natural consequences?

It is a contested argument. However, we all forget that leaving problems to escalate from one year to the next year not only leaves the wound open, but makes it harder to close, particularly in regard to influencing the situation. Though the international players observe these developments as grave concerns, their experiences can only offer a familiar voice asking the stakeholders to remain calm. The Israeli-Palestine conflict, civil wars throughout Africa, the Kashmir issue, Tamil’s status in the United Sri Lanka, belligerent North Korea, Iran’s nuclear potential, governmental issues across Latin America, the worldwide war on terror, the shift of the old world order in the shadow of new rising powers, the impact of the Arab Spring, new tensions between the US and Russia, the Syrian refugee crisis, pandemic diseases, climate change, stalled WTO negotiations and many more keep the United Nations (UN) permanently engaged. Which issues did the international community consider more important than others and which remained untouched during the year 2016 will be discussed here.

This year the Israel-Palestine issue did not received more space in the agenda of the UN but was always present at the table. The recent abstention of the United States in the UNSC censuring the illegal Israeli settlements show that the long-standing approach of America in favor of Israel now is tilting. Israeli Prime Minister Benjamin Netanyahu was blindsided by this new shift, and spectators continue to contemplate why the US has broken its uncontested support for Israel and what the expected results might be.

No one dare talk of the Kashmir issue boldly, as it fuels the bitter relations between India and Pakistan. The reason for the estranged relations between India and Pakistan begins six decades ago at the partition of the Hindu-Muslim divide. Pakistan invaded Kashmir and was the aggressor in the situation. With no question surrounding India’s status as one of the new rising powers in the international system, seeking major influence within inter-governmental and organisational bodies is tensely anticipated. It seem Pakistan has not realised the reality of this issue, it can cry foul but it will not receive any support from any major Western players. This issue was not considered seriously by the international community for two reasons. First, India maintains that Kashmir is the internal matter of India and will only be resolved bilaterally with Pakistan. It claims that there would be no space for a third party. Second, India is the worlds largest democracy with a fast growing economy, as well as the largest importer of military procurements. India’s growth can be attributed to its friendly relations with major powers in the international system.

The agreement between Colombia and FARC would have ended one of the world’s longest, continuous conflicts in Latin American and set a precedent for resolving any deadly conflicts across the continent. However, Africa remains a continent plagued by suffering, and does not intend to copy the model and attempt to end any of their internal conflicts. Poverty, malnutrition, water insecurity and chronic diseases are threatening Africa’s communities. In addition, other issues like Boko Haram’s insurgency in northeastern Nigeria, ethnic violence in the divided Sudan, and Congo, Somalia, Mali and Algeria registered even more deaths from political violence in the year 2016. Recent reports say that Robert Mugabe, the 92 year old President of the failed state Zimbabwe will be in the race again to retain his presidential power. The UN and the US are concerned about the burgeoning issues across Africa but are unable to do carry out any action because of their focus on eradicating ISIS in the Middle East.

In Sri Lanka, the conflict between the majority of Singhalese and the minority Tamils and taking forward the new constitution of united Sri Lanka will be a burning domestic matter. The post-LTTE regime and the continuous presence of Sri Lanka’s military throughout war-torn regions makes the deprived minority people more vulnerable and poses a serious threat for their peaceful living. Further, the government’s concern to monitor and if needed thwart the regrouping of the LTTE would be understandable but the internal security matters should not endanger to its citizens. The crucial factor here would be an investigation by the UN body regarding the Human Rights violations, torture and unlawful killings during the final seven years of the war, and to apply pressure to the Sri Lankan government for further actions and a follow up. However, the resistance of Colombo in addition to the rivalry between India and China granted free bail to Sri Lanka in Indian Ocean security challenges.

At the Paris accord on Climate Change at the end of 2015 and the follow up in 2016 by the UN, the US sought a Chinese pledge. This was in order to give a chance to the citizens of the world and for the biggest polluters to guarantee change in the face of the real threat of global warming as well as the responsibility to save it. So far, “120 Parties have ratified of 197 Parties to the Convention” (unfcc.int) thus the Paris Agreement was fully supported and entered into force in 2016, received as a very positive message to all environmentalists, climate change scientists and anyone affected/worried about the consequences of pollution.

The deadlock of the WTO Doha Round talks means there will not be negotiations in 2016 due to the inability of the international community. This is not good news to the developing world, as this is the only rules based organisation which gives support to small states. The deadlock must be reversed to give an opportunity to every human being who have the right to live in this world equally. The failure of the WTO in boosting regional trade pacts would be a loss for developing nations. In 2016 the WTO was able to receive the required attention but will get the right consideration in 2017 if the Director General of the WTO, along with the new US administration, the EU, China, India, Russia, Brazil, South Africa and other major players collectively stand to provide a chance for future negotiations.

The second Iraq war, the repercussions of the ‘Arab Spring’ followed by civil war across North Africa and the Middle East has caused serious damage and disasters to humanity. The struggle to wipe out ISIS in Iraq and Syria fuelled the biggest refugee crisis the world has witnessed since World War II. The continuous clash between the US and Russia over Syria ceasefires and the battle for Mosul and Aleppo has devastated the country without any immediate redemption. Though the international community was concerned, the ego’s and power struggle between the US and Russia was the main reason behind the delay to bring all parties for ceasefire discussions.

The threat of nuclear weapons falling into the hands of deadly terrorist groups and proliferation of nuclear material within failing states is a serious issue which hurts everyone in the world. Last year alone, various tests were exercised by North Korea, and though its weapons capacity is contested the main point is that the tests were successful. North Korea is demonstrating its nuclear might with the protective shadow of China. No one is willing to address and/or challenge China’s influence, powers and relationships in the region. Why is this?

The pact with Iran surrounding nuclear material was a necessity as there was no alternatives that pursued the right direction. Which way this option proceeds lies in the hands of the new US president. Hopefully, Iran and its people will enjoy the outcome of the pact and it can be viewed as a positive message. With more investments predicted for Iran, the international community should keep a watchful eye on Iran incase these are viewed as funding opportunities to strengthen their nuclear option in the future. To counteract this, Iran should be guaranteed a security shield to protect them from another nuclear state or threat in their region.

US-Cuba relations

After imposing sanctions on Russia as punishment for the Crimea issue, tensions between the US and Russia have been renewed and registered at a new level. The US administration should not forget that pushing Russia towards the East is a big challenge in that it has the possibility of strengthening the relationship with China. Hacking the US election system, President Barak Obama’s reactions to expelling 34 Russian diplomats from the US, as well as Trump’s response are sending dangerous messages. Instead of retaliating, Russian President Vladimir Putin’s silence troubled every one. Which way the US will move and why remains to seen. The important aspect of this and the biggest worry would be the future and risks of cyber-security and the impact it can have on the international stage.

Silent issues are appearing quickly, particularly after the announcement of Trumps election win. His phone call with the Taiwanese President Tsai Ing-disturbed and shocked China. Trump’s olive branch towards Putin and open talks with Ing-wen will be a gateway to isolating China but also poses serious challenges to the new UN Secretary-General.

Ban Ki-Moon the Secretary-General of the UN is now completing his 10-year tenure. Now, the new Secretary-General Antonio Guterres has “pledged to make 2017 a year for peace.” He has experience in the UN as a High Commissioner for Refugees and as prime minister of Portugal. What the international media and diplomats have commented about the incoming secretary general are positive and widely endorse him as the right choice for this post. Let us hope that he will oversee all the important issues, give immediate attention to deadly issues and will work along with the international community to make a consensus in resolving conflicts and bring peace to this world with a stern hand.

International relations and its issues can not be limited or restricted. They are constantly changing and evolving, and the international community needs to be more resilient and adaptive in order to function at its highest capacity.

The UN has the institutional framework which, empowered by international law and the Geneva Conventions, can take the lead in finding solutions for any conflicts across the world. However, every IR scholar knows that without the backing of the US the UN’s stance would be powerless. Moreover, to carry forward the any proactive UN role the United States support can not be compromised. With unexpected events taking place in the US, president-elect Donald Trump would be the first leader in the history of US politics to be openly disliked by state leaders and his own citizens. With organised rallies, the appearance of posters stating ‘He is not my President’ and a number of debates across social media, serious questions are being about Trump’s presidency.

Though President Barak Obama was praised for his orator-ship, he could only impact minimum issues and some critics state he did not reach his expectations in the year 2016. However, his strong stance on non-intervention, withdrawal of the US military from the Middle East will stand strongly for him in the future. At the same time, the new president-elect of the US is already impacting the world stronger than ever. Russia is happy about the election results as Trump is batting for Russia. Would this mean that the new US policy will attempt to dismantle Russia-China relations? China is not happy about the new US president-elect. India has no opinion but there are expectations for closer ties with the US because of Prime Minister Modi and Trump’s shared policy disarray and inconstant personality traits.

The more international issues are in rise the intervention of the US president with rational act would be crucial for resolving conflicts. So far, Trump has not shown any maturity in his statements on global affairs. Contested statements in his name make the global stage more confusing and reduce his image as a trustworthy global leader.

Will the important global issues that remain unresolved or not a high priority in the year 2016 receive attention from the new US president in the New Year 2017? This has no immediate answer. The UN and the US are strongly expected to lead the way for useful solutions to the global problems. We have crossed the year 2016 with some achievements but not with great disappointments. Hence, we have hope that the international community will fight to save humanity from the natural and manmade disasters.

Antony Clement is a Senior Editor (Indo-Pacific), Modern Diplomacy, an online journal. He is a researcher in Indian Foreign Policy. He is currently working on two books - “The Best Teacher” and “Diplomacy in Tough Times”. His research centres on India’s diplomacy & foreign policy and extends to domestic politics, economic policy, security issues, and international security matters, including India’s relations with the US, the BRICS nations, the EU and Australia. His recent book is “Discover your talents.”

Continue Reading
Comments

International Law

Submarine Cables: The Global Data Infrastructure and International Law of the Sea

Published

on

Image source: indiatoday.in

As a lay person, it is a common perception that data and communication signals travel through multiple satellite systems orbiting around the earth. However, this is a grave misconception. As one writer puts it, “but that the communication signals themselves are then broken into bits of data, which then ply the ocean depths at the speed of light via unseen cables, is hard to imagine.”[1] The reality is that 99% of the world’s communication data is currently moving through hidden undersea cables. These are now befittingly called as the “Out-of-Sight Arteries of Globalization”.[2] These submarine cables are functioning as a global infrastructure for the movement of inter alia big data, communication signals, phone traffic and even financial capital around the world. During the past decade, the weaknesses and gaps in the protection of these underwater fiber-optic cables under International law has come to the fore. This article is aimed at critically analyzing the vulnerability in International law to protect these global underwater data highways.

History & Background

In the year 1858, the first transatlantic subsea cable was laid down between Ireland and Newfoundland which snapped 26 days later.[3] In the year 1864, another transatlantic cable was placed between the same territories and this time it proved to be successful. Following this success, there was no looking back and submarine cables were placed between various territories along the seabed of the Pacific Ocean.[4] Interestingly, the transmission speeds for these first telegraph cables were 12 words per minute which increased exponentially to 200 words per minute by the 1920’s. The invention of the telephone expanded the reliance on these transcontinental cables. From the beginning of the 1950’s until  the late 1960’s underwater coaxial cables dominated intercontinental voice communications.[5]

It was the invention of satellite systems during the 1970’s which greatly reduced the reliance on subsea cables for use in communication technologies. Although the satellite systems dominated the telecommunications world for more than a decade, they were soon replaced by the invention of fiber-optic cables. Fiber-optic cables were more capacious in carrying vast amounts of data and signals as compared to coaxial cables of the bygone days.[6] The first fiber-optic cable was laid down in the year 1986. As of 2019, there are 241 active and distinct fiber-optic subsea cables which are mapping a length of 1.1 million kilometers (km) of the seabed.[7] One writer points out the dominance of undersea cables over satellites by the fact that if they were to stop transmitting then “only 7% of the total United States data traffic volume could be carried by satellite”.[8]

Global Significance & Issue of “Materiality”

Subsea cables are a crucial part of the digital economy, making flows and exchanges of data possible. Astonishingly, they are considered to be intangible, immaterial and un-territorial under the international legal framework.[9] It is understandable that an average person using the internet is unaware about the physical aspect of data transmission. However, International law and its supremacy is founded upon physical objects and materiality. International law experts are now increasingly engaging in such a method of analysis as compared to archetypical theoretical frameworks. Hohmann and Joyce explain that “in revealing the deep entanglements of international law and the material things around us, we can begin to understand how international law structures and disciplines its subjects—and sets the contours for the possibilities and limits of our lives—through objects.”[10]

It is absolutely imperative that International law recognizes the physicality of undersea cables which are now deeply intertwined with the social, economic, legal and technological orders of a digital age. International law and its dominance is moulded by the physical infrastructures which are an important factor in the growth of modern digital economies. Undersea cables are now the subject of competition and struggle between both state and non-state actors (e.g developers and corporations). These struggles include title, control, access and territorial sovereignty.[11] All these fall within the ambit of International law, and efforts must be made to enable a fair regulation.

International Legal Framework and Challenges

The protection and security of subsea cables has been the subject matter of at least seven different international conventions between late 19th century and the beginning of 20th century. It all started with “The Convention for the Protection of Submarine Telegraph Cables (1884)” which was inked in Paris. The 1884 convention was applicable in the territorial waters of the signatory states, making the damage of such cables a punishable offense.[12] The primary purpose of this treaty was to encourage the stakeholder States to promulgate domestic legislation protecting these cables.

The World moved on from the Telegraph to the Telephone, but these undersea cables remained of cardinal importance in communication technology. These cables were an agenda topic in the United Nations International Law Commission (ILC) on the law of the sea. In the International Law Conference of the Sea (1958), three articles relevant to the protection of subsea cables were incorporated into the Geneva Convention of the Law of the Sea (1958).[13] It was also agreed that the provisions of the 1958 conventions will not affect any previous treaties (which included the 1884 convention).[14]

In the year 1973, the UN held a third conference to debate upon the law of the seas and this subsequently resulted in the “United Nations Convention on the Law of the Sea, 1982 (UNCLOS)”. This time again, three provisions (Articles 113 to 115) specifically addressed the protection of undersea cables. Unfortunately, neither the 1982 UNCLOS nor its predecessor treaties could correctly envisage the importance of submarine cables to a digital age.

Pursuant to Art. 21 and 113 of the UNCLOS, littoral states have the authority to enact domestic legislation to protect the subsea cables or any other conduit that lay beneath their territorial waters. States are under no obligation to enact such legislation, and for this reason, most of the littoral states have abstained from doing so. Many studies and reviews have found that there exists little or no domestic legislation which criminalizes any damage caused to such cables.[15]

In addition to this, there does not exist a legal regime which could potentially prosecute offenders who damage undersea cables which are located in the high seas. The UNCLOS limits the jurisdictional protection to flag-bearer vessels.[16] This implies that littoral states could prosecute foreign vessels for damaging fiber-optic cables within its territorial waters, but not otherwise. As a result, there exist significant lacunae in the prosecutions of intentional or negligent damage of such important infrastructure. It is clear that the undersea cables are more prone to nefarious designs to disrupt communications by the foreign vessels of adversary states in the high seas. In terms of technological advancements, the data transmission network has moved forward by leaps and bounds. Legally, the International framework has failed to keep up.

Conclusion

In a modern digital world, these hidden subsea cables are a site of politics, power, communication and most importantly contestation. These cables may prima facie be an invisibility. But the real importance of an invisibility lies in the phenomenon it enshrouds. It is about time that International law recognizes that global digital economies are functioning and prospering through a hidden network of key infrastructure which needs better and impenetrable protection.


[1] Douglas R. Burnett & Lionel Carter, International Submarine Cables and Biodiversity of Areas Beyond National Jurisdiction: The Cloud Beneath the Sea, BRILL RESEARCH PERSPECTIVES IN THE LAW OF THE SEA, 3 (2017).

[2] Surabhi Ranganathan, The Out-of-Sight Arteries of Globalization, Visualizing Climate and Loss, http://histecon.fas.harvard.edu/climate-loss/lawofthesea/arteries.html

[3] Lionel Carter & Douglas R. Burnett, Subsea Telecommunications, in ROUTLEDGE HANDBOOK OF OCEAN RESOURCES AND MANAGEMENT, 349, 350 (Hance D. Smith, et al. eds., 2015)

[4] Stewart Ash, The Development of Submarine Cables, in SUBMARINE CABLES: THE HANDBOOK OF LAW AND POLICY

[5] Lionel Carter & Douglas R. Burnett, Subsea Telecommunications, in ROUTLEDGE HANDBOOK OF OCEAN RESOURCES AND MANAGEMENT, 349, 350 (Hance D. Smith, et al. eds., 2015)

[6] Ibid

[7] Working Group 8 Submarine Cable Routing & Landing, Final Report – Protection of Submarine Cables Through Spatial Separation, THE COMMUNICATIONS SECURITY, RELIABILITY & INTEROPERABILITY COUNCIL IV, 1

[8] Stephen C. Drew & Alan G. Hopper, Fishing and Submarine Cables: Working Together, International Cable Protection Committee (February 23, 2009) at 8, available at https://www.iscpc.org/publications/

[9] Territoriality and Intangibility: Transborder Data Flows and National Sovereignty, in Beyond National Sovereignty: International Communication in the 1990s 259 (Kaarle Noerdenstreng & Herbert I. Schiller eds., 1993)

[10] International Law’s Objects, 2 (Jessie Hohmann & Daniel Joyce eds., 2019).

[11] Jeremy Page, Kate O’Keeffe & Rob Taylor, America’s Undersea Battle With China for Control of the Global Internet Grid, Wall Street J. (Mar. 12, 2019)

[12] George Grafton Wilson, The Law of Territorial Waters, 23 AM. J. INT’L. L. 2, 241-380 (Apr 1929)

[13] Eric Wagner, Submarine cables and protections provided by the law of the sea, 19 MARINE POLICY 2, 127, 135 (Mar. 1995)

[14] Convention of the High Sea, Apr. 29 1958, 450 U.N.T.S. 11 (codifying this provision at Article 30, excerpted here: “The provisions of this Convention shall not affect conventions or other international agreements already in force, as between States Parties to them.”)

[15] Robert Beckman, Protecting Submarine Cables from Intentional Damage, in SUBMARINE CABLES: THE

HANDBOOK OF LAW AND POLICY

[16] UNCLOS (1982), Art. 27

Continue Reading

International Law

Locating Sustainable Migration Framework in a Globalized World beyond the UNCSR

Published

on

Photo Credit: © UNHCR/Ivor Prickett

The traditional understanding of refugee protection and safeguards enshrined in the 1951 UN Convention relating to the Status of Refugees (UNCSR) with its 1967 Additional Protocol has come to a tipping point. The current scenarios of mixed human migration have given a new term that defines the “new refugee” as “migrant” due to the imprecise distinction between refugee and migrant in the wake of enlarging protections and expanded challenges to the refugee interpretation under UNCSR. Today, mixed human migration has become the determinant factor to critically appreciate the experiences, familiar routes, and intentions of refugees and migrants and threats to the protection system in the wake of emerging populist radicalism in the Global North and Global South with equal intensity. Such radical trends are generally backed by the majoritarian political discourse in constitutional democracies. But such revanchist patterns could only be contained by the re-mainstreaming of liberalism in our geopolitical identities.

New Categories in a Globalized World

Thus, the mixed human migration has necessitated the creation of new categories beyond the traditional understanding provided in UNCSR. Historically, the remarkable distinction between “refugee” and “migrant” is based on the institutional recognition of the notion that the refugee enjoys an elevated status in the framework of international law. However, the nation-states and inter-governmental mechanisms attend refugees based on the thresholds of gravity of refugee situations on a particular occasion. Consequently, such arrangements recognize the “refugees” and derecognize the “economic migrant.” However, in reality, it has now become a well-established understanding that such divisions between these categories are difficult to make in a globalized world. Alexander Betts has written about people who flee hostile circumstances and called such flight “survival migration,” especially from unstable nation-states, situations of socioeconomic violations, and climate change-driven displacement that have not yet been recognized as refugees under UNCSR. Unfortunately, there is no political understanding among the UN member states to broaden the limits of the UNCSR definition of a refugee by creating the new protection categories. Therefore, it is imperative in the present scenario to defend the existing “refugee” category, and nation-states strive to extend protection under international human rights treaties to other groups of vulnerable migrants fleeing persecution beyond UNCSR.

Global Compacts on Refugees & Migration

The origin of the Global Compact on Refugees (GCR) and Global Compact on Migration (GCM) is knotty as a global political project. Primarily, in late 2015, the strategy was to conclude and adopt a comprehensive plan of action for Syrian refugees and Mediterranean routes of refugees who have created a refugee crisis in Europe. Therefore, global institutional politics and other multiple reasons paved the way to adopt such a plan of action in January 2016 for organizing an international conference in New York in September 2016 with the mandate to have GCR. Simultaneously, other world institutions also hard-pressed for a similar arrangement called GCM to create equilibrium for proportionate protection. Such segregation was required due to the organizational distribution of business within the UN system. Therefore, the UNHCR (UN High Commissioner for Refugees) was mandated to act upon and implement GCR.

In contrast, Switzerland and Mexico have co-supervised the parallel GCM programme and its modalities for implementation. Though these Global Compacts have common characteristics, gaps, and intersections mainly, there is small space for internally displaced persons (IDPs) and transnational displacement that has not been recognized in the refugee definition. But UNHCR has proposed specific plans for implementing GCM that incorporate significant steps for migrants in vulnerable conditions. As a result, these Global Compacts have been playing relatively different roles as GCR attempts to address the gaps in the UNCSR by ensuring fundamental principles of humanity and international solidarity and strives to implement the principles of burden-and-responsibility-sharing (BARS) for refugee protection, assisting the refugees and supporting the refugee-hosting countries and communities. On the other hand, GCM provides a nascent global migration governance system as a first step. GCM is an intergovernmental agreement brokered by the UN that addresses all dimensions of global migration holistically and comprehensively and confronts the challenges relating to the worldwide movement by strengthening the contribution and engagement of migrants to sustainable development.

The Role of UNHCR & Shifting Global Debate

The position of UNHCR has become challenging as it confronts a multitude of constraints such as cuts in the humanitarian budget by the US, widespread non-compliance with the UNCSR and its Additional Protocol, and the emergence of institutional rivalry with the entry of IOM in the UN system. However, UNHCR has taken a restrained approach and deliberately excluded many parts from the current global debate on GCR, particularly Lego-institutional reforms. The GCR’s Comprehensive Refugee Response Framework (CRRF), Global Refugee Forum (GRF), and a string of Solitary Platforms provide the foundation for the philosophy of change and emplace global arrangement for international cooperation and addressing particular refugee crises. These institutional arrangements in the GCR framework, like CRRF and GRF, stipulate a new development-based and market-driven model of operation with a lot of pragmatism. GCR is an itinerary of actions and actors entrusted to implement the BARS and the entire ambit of modes of contribution on the part of stakeholders. The GCR is a remarkable achievement in its normative and substantive significance and commitments, provided it is executed on the ground. The CRRF has been showing positive results in Ethiopia and Kenya. However, it is the political leadership that has to determine new commitments and promises.

In the present scenario, international institutions require the exceptional and unprecedented capacity to lead collective action based on moral yet pragmatic parleys and diplomacies. World history is a testimony that non-binding intangible and universal commitments of the nation-states incommensurate with the international refugee regime do not serve a significant purpose. At least five to eight years must be demarcated to assess the impact of the Global Compacts on the ground. To do an impact assessment of GCR and GCM along with durable solutions, there are numerous refugee situations like Rohingya refugees in Bangladesh and India, Afghan refugees in Pakistan and Iran, Syrian refugees in Europe, Lebanon and Jordan, Mexican refugees in the US, Somali refugees, Venezuelan refugees in Colombia and Brazil, Afro-Asian refugees in Canada and Tibetan refugees in India. Though the GCM stipulates principles only, it has to evolve its intellectual contours in its initial stages to establish a global migration governance system, and its institutionalization will consume years ahead. However, the GCM is a remarkable achievement that has made migration a head-on agenda item for the UN system.

Global Refugee System: A Critique

Off late, UNHCR has not been innovative and inventive for an expansion of alternatives for refugee protection. It has adopted a guarded approach under which several issues have been put on hold. For long, UNHCR has been avoiding institutional reforms and keeping the refugee definition out of its re-consideration and re-formulation in tune with the current objections by the Global South countries. UNCSR refugee definition is the most significant contention of the Global South countries. It is a Eurocentric formulation and does not cater to the needs of the refugee people from the Global South nation-states. As a whole, the UNCSR regime is regarded as a Global North project imposed on Global South countries. Presently, many UNHCR personnel acquiesce in institutional politics, and the threat has been looming upon them that might jeopardize refugee protection. In such a pessimistic atmosphere, the GCR and CRRF provide a ray of hope for refugee protection. But there would be numerous geostrategic and geopolitical challenges such as the metamorphosis in the thresholds of global world order in terms of the recalibration and transformation of goal-posts of international power politics, the impact of socioeconomic praxis, the emergence of the artificial intelligence in RSD, and immigration procedures, and resurgence of far-right and nihilistic nationalism for minorities, and LGBTQI groups worldwide. Therefore, UNHCR has to continue to adapt to the changing circumstances, particularly by developing and re-crafting its capability for political leadership along with the existing humanitarian leadership in the context of global restrictionism.

Mixed Migration: A Divide between Principles and Pragmatics

The normative understanding of refugee protection and their human rights must not be sandwiched between principles and pragmatics of the regulatory approach. It is the cause of refugee protection that must alone prevail in global institutional priorities, intergovernmental primacies, and political urgencies in any given situation. But the divide between principles and pragmatics of refugee protection has been increasingly widening at an unprecedented scale that has made the UNCSR partially irrelevant, and several governments do not feel embarrassed with their public apathy towards refugees. Even though, immigration has squarely benefited and enriched the host countries of the Global North by building societies based on multiculturalism, pluralism, and cosmopolitanism. However, the political advocacy of right-wing nationalism in Australia, Canada, Europe, the US, South Asia, South-East Asia, and elsewhere conveys that the Global North has been incriminating immigration in the name of pragmatism by undermining the principles of migration.

The far-right nationalism breeds backlash and xenophobia. There is a need to repulse the anti-immigration surge. Global migration is, prima facie, not an immigration narrative alone; instead, it is, predominantly, impregnated with refugee dimensions that have to be dealt with under UNCSR and GCR instead of restrictive immigration laws. Because when immigration law stops, refugee law begins. Immigration law is based on nationalism, and refugee law is based on globalism. The global principles of the rule of law must comport with secular democracy, inclusive human rights, and liberal pluralism. These principles must get the support of the electorates in all geopolitical entities across the world. Such steps will guard these principles from far-right-wing politicians who are hell-bent on eroding universal liberal values. Therefore, the international community must reconcile the idea of liberal internationalism with the notion of secular democracy; otherwise, humanity would not be able to defeat the resurgent Frankenstein of international politics.

Global Public Perception & Sustainable Migration Framework

The global public perception suffers from the fear and impact of the increasing population of refugees and migrants, and Global North countries are reluctant to host them. There are 84 million displaced people worldwide, and out of them, 26.6 million are refugees (as of mid-2021). However, the challenge is greater geographical concentration as 85% of refugees live in low and middle-income countries, and 60% are present in just ten countries. Meanwhile, global migration trends have been mostly steady in terms of proportion to the global population since the 1970s, although the statistics of the people have increased from 70 million to 240 million. However, the refugee crisis has never been a crisis of statistical data; rather, it is the crisis of international politics and trust deficit among the comity of nations. The people of Global North countries are skeptical and fearful of socio-cultural transformation due to the triggering of structural changes with the arrival of refugees. Such changes cause the loss of low-skilled manufacturing jobs, starting of the politics of austerity, and politics-driven campaigns by the far-right-wing politicians in the host countries. In such a situation, the global community must develop a sustainable migration framework based on migrants-oriented policies that address both host and transit countries in equal measures.

One of the biggest challenges in the current world order is reconciling democracy with globalization in the wake of anti-migrant populism in Global North and Global South countries with equal far-right ferocity? It is, indeed, a significant challenge to preserve the optimism in the present world where electoral choices are expressed with technology, and sovereign citizens demand the re- endorsement and re-statement of national sovereignty in all its manifestations. Therefore, such integration of democracy and globalization needs a substantial amount of creativity that includes a new perception about normal human mobility and forced migration. Such optimism needs farsighted global governance supported by institutions and subsidiary organizations of the UNO, regional and other inter-governmental organizations. However, such a possibility right now is absent due to the international orders increasingly becoming more and more obstructive and deterring human mobility. There is a need to have collective measures to address the problem of the exodus of hybrid migration resulting in a backlash in the destination countries. It further jeopardizes the lives of people taking strenuous and frantic travels in search of safer refuge. Such reckless journeys become the cause of mushrooming of criminal syndicates indulging in human trafficking and criminalizing migration networks that mount a massive burden upon the capabilities of refugee-hosting countries while chipping away the thresholds of refugee safety.

Way Forward

On the basis of our cumulative experiences, there is a need to re-imagine the innovative and inventive refugee protection proscenium to respond to grisly human migration in all continents and countries. But it must not be devoid of the principles of Global Human Rights Constitutionalism, and it must discard the discourse of popular nationalism that is anarchist, narcissist, nihilist, and exclusionary in its treatment of RAMS (refugees, asylum-seekers, migrants, stateless). The current Globalized World needs the re-validation and re-assertion of diversity, dignity, multiculturalism and liberal values of the yore. It is an age requiring arrangements for integrating the contesting and opposing interests across the political spectrum in all geopolitical enties. Such measures demand audacious actions, quixotic visions and re-embracing of human rights liberalism beyond the rubrics of UNCSR.

Continue Reading

International Law

UNCTAD Report: Revisiting Old Issues in Managing Cross-Border Data Flows

Published

on

Today, information space has become a field of confrontation involving major digital platforms, governments, societies and individual users. Stories featuring latest cyberattacks or state-sponsored attempts to limit the influence of social networks and regulate the digital sphere, where there is no governance at the international level, are those that grab the headlines of many online media outlets.

Given the current climate, it is then no surprise that the United Nations is paying close attention to the issues related to the digital domain. On September 29, United Nations Conference on Trade and Development released its Digital Economy Report 2021, which focuses on the issue of managing cross-border data flows. The piece is rather comprehensive in terms of the issues covered, seeking to analyze the inhibiting factors that prevent us from working out an exhaustive definition of what “data” is, while exploring the specific approaches of states to regulating cross-border data flows. The report’s authors pay particular attention to the digital divide that has emerged between developed and developing nations. That said, we would argue that the report is more of a descriptive paper rather than a real step towards erecting a system of global governance.

The first section of the report addresses the lack of clarity on the definition of “data”, whether in research or among practitioners. With no unified terminology, communication between stakeholders appears to be complicated, much as the process of designing public policy as regards the digital sphere. A generally accepted and unified terminology would no doubt make it easier to foster closer cooperation, although this is certainly not a defining prerequisite. International efforts to fight against terrorism can be a case in point here, as there is no conventional definition of “terrorism,” while this does not hinder inter-state cooperation, both regionally and globally. While this cooperation may not always proceed smoothly, any problems encountered tend to be the upshot of political squabbles rather than the implications of the fact that no single definition of “terrorism” is to be found.

The UNCTAD report brings up another underlying premise, which is that data should be treated as a global public good. This will allow citizens, acting as “producers” of raw data, to claim the benefits of it being used by digital platforms. This issue has already been discussed at the EU, with the approach tested in a number of cities. Transferring some control over the flow of data from corporations to users is an important step towards ensuring that human rights are upheld in the digital environment.

The UNCTAD report also explores the technological and digital divide, whose dimensions span developed and developing countries as well as urban and rural areas within a particular country. This problem is nothing new: it was only last year when UN Secretary-General António Guterres referred to the need to bridge the gap, arguing that it was instead widening amid the COVID-19 pandemic. At the same time, he proposed a Roadmap for Digital Cooperation.

Besides, the report notes the massive impact of digital platforms. These, the authors believe, “are no longer just digital platforms” but “global digital corporations” that have the necessary capabilities for processing information, which puts them in a privileged position. Further, digital platforms are able to influence policymaking through lobbying their interests. In terms of spending, Facebook and Amazon are the most active lobbyists in the United States, while Google, Facebook and Microsoft are the biggest spenders in Europe. The report suggests that the privileged position of digital corporations—such as their ability to process massive bulks of data and derive profit from raw information—leads to something of an imbalance between the private and the public sectors when it comes to recruiting talent. Accordingly, the gap is widening, which means that the tech giants are moving even further out in front.

Finally, fragmentation of the digital space into competing models of managing cross-border data flows is another challenge to the digital domain and its prospects. Should such fragmentation occur, this may create new obstacles to communication and economic development, as the existing models (those of the U.S., the EU, Russia, China and India) offer different regulatory practices that have their own flaws and inefficiencies. The report identifies the broad shortcomings of these practices, making note of poor coordination between government agencies; ambiguous formulations deliberately used to denote key concepts (such as “critical infrastructure” or “digital sovereignty”); and setting unrealistically high technical requirements, including the requirement to store personal data locally—something that entails greater costs for smaller businesses and is detrimental to end consumers of digital products and services.

The Digital Economy Report implies the solution lies in establishing a new institutional framework to meet the challenge of global governance in the digital domain. This new institution should contain the “appropriate mix of multilateral, multi-stakeholder and multidisciplinary engagement.” At the same time, the report argues for ad hoc interaction between stakeholders given the inherent complexity of the framework. The new organization should become a coordinating body for digital governance with a sound mandate.

Indeed, the main stumbling block for global governance to emerge in the digital sphere has to do with the model of interaction to be chosen. The epitome of the intergovernmental approach is the International Telecommunications Union (ITU), while the Internet Corporation for Assigned Names and Numbers (ICANN) is illustrative of the multi-stakeholder approach.

Since neither is perfect, this naturally leads us to the conclusion that a combined approach is what is needed. This approach can possibly provide states with a much-needed platform for broader involvement in issues of digital governance, while ensuring that non-state actors and expert community retain their positions. The UNCTAD report refers to the United Nations Economic and Social Council (ECOSOC) as a perfect example of such a “hybrid” international organization. At ECOSOC, interaction with NGOs takes place through the Conference of Non-Governmental Organizations in Consultative Relationship with the United Nations. Expert bodies made up of representatives of individual countries as well as of independent experts also operate within the framework of ECOSOC.

Indeed, ECOSOC is a good example of how international institutions can interact with NGOs. However, it will not do to simply copy its mechanism, and it is so for several reasons. First, final recommendations within ECOSOC are adopted by representatives of member states. This harms its usefulness as a model to be replicated, since there will always be the risk that issues are politicized—this will be the case even if the new institution is designed with the combined approach in mind. Besides, should this body take on the role of the principal coordinator in the digital space, issues will become more politicized and disagreements will be more heated, thus slowing down decision-making. Second, the question remains as to how the new institution will interact with the existing organizations, namely the Internet Architecture Board and the Internet Engineering Task Force. The ad hoc mechanism to engage NGOs in other areas, which works perfectly fine for ECOSOC, may not be enough when it comes to technical standards that need to be constantly updated. Third, the General Assembly elects ECOSOC members every three years. However, this would not be feasible for the new coordinating body as the digital domain has its own leaders, and leaving them overboard would be incredibly detrimental to its effectiveness. In such a case, there remains the above-mentioned risk of discussions between the U.S./EU and Russia/China becoming politicized.

Moreover, the choice of decision-making mechanism presents certain difficulties given the dominant position of the four, both on the international stage and in terms of data processing. Operating on the basis of consensus may hinder negotiations or become an instrument to block unwanted decisions, while a simple majority will likely result in these nations establishing ad hoc coalitions to try and swing votes in their favour. Therefore, it seems prudent to design a complex voting mechanism based on qualified majority, possibly drawing on the system used in the Council of the European Union. Still, this mechanism will not rule out struggles unfolding behind the scenes.

Finally, the fact that the two sides have fundamental disagreements as to the concept of sovereignty in the digital space should be accounted for, as this could put an end to the new coordinating institution before it has even been established. The only way to move forward with a truly effective platform for cooperation in the digital space is to temporarily improve, if not to normalize, the relations between the leading states in this area.

No global governance in the digital domain is better than a poorly regulated system spinning its wheels. Our modern world is too dependent on technological advances that ensure that all regions and facets of life are complementary. Any failure of the mechanism can be extremely costly. However, increasing fragmentation of the digital space may be even more costly—for developing and developed countries alike. One possible way forward amid the international environment mired in uncertainty is to search for common ground on the most basic of issues. While the differences in national regulations persist, there are a number of issues that are common to all: these include cyberterrorism, cybercrime, illegal access to data or threats to critical infrastructure.

Multilateral agreements that do not address the fundamental differences in the stances taken by states may lay the foundation for global governance to emerge in the future. It is in this context that the joint U.S.–Russia draft resolution on the responsible behaviour of states in cyberspace, if legally unbinding, bears utter significance for cooperation between nations who espouse two different models as well as for overcoming the negative background of broader political disagreements.

From our partner RIAC

Continue Reading

Publications

Latest

Americas5 mins ago

The American Initiative for a “Better World” and its difference with the Chinese Belt and Road

During their summit held at the end of July 2021 in the city of “Cornwall” in Britain, the leaders of...

Africa6 hours ago

Xi Jinping’s Global Development Initiative and the Sustainable Development Agenda of China-Africa in 2030

Chinese President “Xi Jinping” proposed during his speech before the virtual session of the (general debate of the 76th session...

EU Politics10 hours ago

Commission proposes to strengthen coordination of safe travel in the EU

European Commission has proposed to update the rules on coordination of safe and free movement in the EU, which were...

Reports12 hours ago

France: Invest in skills, digitalisation and the green transition to strengthen the recovery

Swift and effective government support has helped France to rebound rapidly from its COVID19-induced recession. Using the country’s announced Recovery...

quantum technology quantum technology
Tech News14 hours ago

What is the Difference between a Sensor and Transducer?

What Do We Understand by a Transducer? A transducer is an electrical gadget or device that can convert energy from...

Americas14 hours ago

Russia and the United States Mapping Out Cooperation in Information Security

Authors: Elena Zinovieva and Alexander Zinchenko* The first committee of the 76th session of the UN General Assembly has adopted...

Human Rights15 hours ago

Russian mining giant builds new settlement for indigenous peoples

The FPIC procedure, first used in Russia by the Norilsk Nickel mining company, has entered a new stage. A second...

Trending