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International Law

The Global Nuclear Justice: From Westphalian Exceptionalism to Universal Constitutionalism

Dr. Nafees Ahmad

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The global nuclear justice quest has been culminated by adopting a new regime that intends to dilute the Westphalian Exceptionalism and tries to establish the Universal Constitutionalism based on UN Charter’s goal of violence free world enunciated in its preamble. But its plausibility and pragmatism would be tested in the years ahead.

The United Nations has voted to approve the text of a proposed draft for an international treaty on the Banning and Prohibiting Nuclear Weapons on July 07, 2017.  The Draft Treaty is called Nuclear Ban Treaty (NBT) that shall formally be opened for signature in September 2017, and shall be binding as an international legal instrument provided it receives 50th country’s instrument of ratification that is duly deposited with the UN Secretary-General within 90 days of its opening as per the provisions of the impugned treaty. Unbelievably, the ensuing ratification of the treaty has consumed 73 years since the attacks on Hiroshima and Nagasaki in Japan to arrive at an international understanding for the nuclear arms free world. Under the auspices of the UN, the international community has made the use or threat of nuclear weapons prohibited unconditionally under Article 1 (e) of the framework of the multilateral treaty. Remarkably, state parties to the treaty have to bear the core and absolute obligation enunciated under Article 1 (a) of the Draft Treaty that is “prohibition of any possession, deployment, testing, transfer, storage and production” of the nuclear weapons and any connection whatsoever therewith or thereto or otherwise. The NBT is an unprecedented step beyond the rubrics of prohibition that must be interpreted by dismantling the geopolitical Doctrine of Nuclearism (DoN), and its proliferation and retention must not be content as an absolute necessity by the few international geopolitical entities.

The positive resurgence of NBT has recalibrated an international impetuosity to untangle the murky clouds of geostrategic justifications of nuclear status quo which have rubbished the DoN and anti-nuclear perceptions of the many national governments. However, past assertions regarding the nuclear disarmament lack convictions of the nuclear states of US, UK, China, France, and Russia along with India, Israel, North Korea and Pakistan led by the United States. The nuclear states have been making massive investments in developing, modernizing, and stockpiling their nuclear arsenals. The Pakistan and North-Korea keep on irresponsibly and aggressively asserting their nuclear capabilities for indulging in war-mongering, creating hostilities and hiding misdeeds in their respective regions. Therefore, it must be admitted that a disastrous drawback has been looming large that might derail the newly established NBT architecture. But international community consisting of more than 122 countries has lent credibility and weight to this process and has alluded to an obligation to eliminate all nuclear weapons for all practical reasons. But, unfortunately, all the nuclear states have refused to register their reservations and opposition to the NBT process and to participate in the Conference for Negotiation. Moreover, most of the allies of the nuclear states who are the part of NATO stayed away from the NBT Process. Had these nine nuclear powers abondoned their nuclear racism and participated in the negotiations, the NBT process would have got a greater amount of legitimacy, credibility, and stability in accomplishing global nuclear justice.

International Fragmented Responses

Ironically, many countries in the past such as China, India, and Sweden who vehemently advocated and spearheaded against the DoN and nuclear proliferation were not only opposed the nuclear prohibition but also conspicuous by their absence at the NBT negotiations. Therefore, such an opposition that reminds us of Shakespeare’s Tragedy “Macbeth” wherein Lady Macbeth flagrantly motivates Macbeth by saying “Look like an innocent flower but be the serpent under it” (It means to look like an innocent flower, but be like the snake that hides underneath the flower) and this is what these five permanent members of the UN Security with Germany and Japan have done to the UN sponsored venture to delegitimize the existing Nuclearism in the world. Further, the trinity of veto-wielded powers the US, UK, and France got furious with the whole NBT exercise and issued a joint statement lambasting the new treaty and asserted that they would not sign, ratify or ever become party to it and there will be no change in the legal obligations on these countries with respect to the nuclear weapons contrary to the existing nuclear world order. The present five permanent nukes-armed countries contended that global security balance is based on the current nuclear power structure bolstered by the Non-proliferation Treaty, 1998 (NPT) and any divagation therefrom might cause hara-kiri of sorts. Thus, NPT regime has claimed to have successfully maintained the nuclear deterrence and peace for over 70 years in Europe and North Asia.

It is, indeed, a hollow claim of the maintenance of peace and security for the last, so the low-intensity warfare has dominated many years as this period almost in all the regions of the world including US and Russian Federation who have the biggest nuclear arsenals of the time. However, the Cod-War nuclear rivalry of the US and ex-USSR (now Russia) swelled to other regions and countries of the world that pandered to substantial travails and tribulations for the Global South populations. Therefore, the claim of peace or no-war situation cannot be justified by nuclear deterrence narrative as the present order has been accumulated at the expense of the Afro-Asian societies. Hence, the NBT regime is also juxtaposed with a Westphalian model of state-centrism under which a Global Legality Framework (GLF) has been followed in inking the NBT under the auspices of UN architecture. The NBT adherence by the state parties and national governments has been meticulously formulated so that their obligations and commitments could be executed after duly depositing the instrument of ratifications. But in the case of suspected or alleged non-compliance of the NBT, it does not offer any guidance whatsoever despite the fact Article 4 of the NBT details as to how the nuclear states must divest themselves of all connections with nuclear arsenals limit claims; therefore, it needs further elaboration and clarification.

Past Denuclearization Drives

The history of the fragmented response of the international community (read nuke-states) embedded in the use of atomic weapons in the WW-II that had incepted the methodology of the warfare in the future. At San Francisco in the US on June 26, 1945, United Nations Charter was signed that contained adequate provisions for peace, tranquility, and stability throughout the world. But on July 16, 1945, the US detonated the world’s first nuclear explosive at the Trinity test site adjacent to Alamogordo-New Mexico in circumvention of the UN spirit and ethos. Therefore, UN Disarmament Commission was established on January 11, 1952, having dissolved the UN Energy Commission. But, the UK also tested its first atomic bomb called Hurricane at Monte Bello Islands in Australia on October 03, 1952. However, US President Eisenhower proposed a new vision termed as “Atoms for Peace” (AoP) while addressing the UN General Assembly on December 08, 1953. The AoP Programme was directed to use nuclear energy for peaceful purposes with safeguards against the military use of nuclear materials and allowed all the nations willing to subscribe to AoP with these conditions. He also mooted an idea to create an international atomic energy organization that ultimately initiated an era of nuclear power and its dissemination. However, the USSR proposed the idea of setting-up of Nuclear Weapons Free Zones (NWFZs) in the UN General Assembly in 1956 and Poland introduced the Rapacki Plan as the first NWFZ. Thereafter, on October 16, 1956, the Statute of the International Atomic Energy Agency (IAEA) was opened for signature. The IAEA has been established to enable the peaceful use of nuclear energy and to ensure that IAEA’s assistance should not be used for military objectives.

Many NGOs such as Pugwash Movement also supported the idea of denuclearized world. Thus, the US., UK, and USSR declared an unofficial moratorium on the nuclear tests from November 1058 to September 1961. In the following years, many efforts have been made to have a nuclear weapons free world by the US and the former USSR in the 1960s. Under the UNGA Resolution 1653 (XVI) and UN Charter, threat or use of nuclear weapons was declared unconditionally illegal in 1961 and violation thereof was regarded as a crime against humanity. In 1962, the Cuban Missile Crisis that was juxtaposed with nuclear weapons and it terrified the international community to the hilt. The ICJ (International Court of Justice) with the majority rendered an advisory opinion on the reference made by the UN General Assembly regarding the “Legality of Threat or Use of Nuclear Weapons” Case on July 08, 1996 had limited the scope of the legality of use to the rare situations of the survival of a state. Even before that, the leaders of the two super powers of the Cold war era, Ronald Reagan (US) and Mikhail Gorbachev (USSR), now Russian Federation, met at Reykjavik-Iceland in 1986 to negotiate a historical nuclear disarmament treaty. In the later stages, particularly in 2009 at Prague, President Barack Obama has also shared the sentiments of the President Jimmy Carter who had expressed his determination in 1977 to wipe out completely the menace of nuclear weapons. Fortunately, new NBT regime seems to be in proximity to his vision of the nuclear weapons-free world.

Therefore, these opportunities and initiatives enhanced the chances for a denuclearized world but, unfortunately, no substantial progress could be achieved for a peaceful future and humanity generally got disenchanted and disillusioned with the cynicism of the nuclear weapons states. Though, they do pose some anti-nuclear weapons advocacy sporadically just to placate the sentiments of the non-nuclear countries. But, ultimately, denuclearization drive got tottered under the exclusive global security narratives that have been politically crafted, diplomatically calibrated, and monetarily pursued by the nukes holder states.   

The NBT Strengths & Weaknesses

The NBT has been created as an ambitious plan for achieving universality ultimately in the years ahead, but it seems a remote possibility as it contemplates minimum substantive obligations for implementation irrespective of the fact whether the non-nuclear states agree to the deployment of nuclear weaponry or have any connection therewith. However, there is a strong case made out for prohibitions in the NBT are universally binding under customary international law (CIL) deviant to the opposition, reservation, exception or rejection by the states or countries resorting to the persistent objector rule. But, unfortunately, NBT still protects and promotes the idea of Statism considered to be the bedrock of the present world order which emanates from Article 18 giving state parties the right to withdraw from the NBT mandate by formally attaching a statement regarding the “extraordinary circumstances” that have endangered the paramount  interests of its country and, therefore, made a case for withdrawal. Further, the NBT regime is silent about the geopolitics of denuclearization, demilitarization, and conventional disarmament. Even it also ignores the fact of nuclear capabilities of threshold nuclear states under the current technological advancement that gives a nuclear weapon option to them.

Any reneging from the NBT shall take three months from the date of notice and statement deposition but, regrettably, the NBT lacks procedure on defining and contesting the grounds of “extraordinary circumstances” if made with mala fide intentions beyond the pale of law and morality. Even non-nuclear states would not accord any credence to the global human well-being while exercising their sovereign rights. Let’s hope that comity of nations would not use the rights available under Article 18 of the NBT shortly. Nevertheless, such kind of provision does make global human security subservient to the national security interest narrative that further undermines the CIL, International Law and the Principles of Natural Law regarding weapons of mass destruction (WMD), etc. Consequently, state parties to the NBT can rescind their NBT obligations in the ways which are not there in international human rights instrument such as 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide, 1973 UN Convention on the Suppression and Punishment of the Crime of Apartheid, and 1984 UN Convention on Torture (CAT) etc. However, the preponderance of the nuclear states in world power structure does not conform to the international law, the international rule of law, peace, democracy and human rights for all.

Where from here?

Despite all the weaknesses and challenges, the anti-nuclear protagonists and advocates of nuclear disarmament have accomplished as of now something considered unthinkable in the form of the NBT. But the skeptics are hell bent to quash the NBT as wannabe narrative that would prove a giant fiasco. Thus, the dichotomy between nukes-states and non-nukes states has become invincibly visible devoid of any common minimum understanding for the shared future of the humanity. Primarily, the DoN has been impulsive that has fashioned the geostrategic calibrations of the nukes-states leading to the considerable self-restraint in crisis situations. The policy of nuclear unilateralism has delegitimized the implementation of NPT regime since its being discriminatory in nuclear nonproliferation standards, e.g. Israel’s nuclear ambitions are being ignored, whereas nuclear non-proliferations standards were enforced in Iraq in 2003 beyond the NPT stipulations and violation of the UN Charter. At the same time, Iran and North Korea are under the constant threats of military actions sans any defense unless and until such actions are authorized unanimously by the five permanent members of the UN Security Council (UNSC) resolution along with four other states in the UNSC under the Article 27 (3), the UN Charter, but such a possibility remains a distant dream.

Therefore, permanent members of the UNSC along with the countries opposed to NBT might resort to coercive unilateralism to delegitimize and discredit the NBT regime despite its being in conformity with GLF. They had already displayed such tactics and tantrums in the past in the case of war against Iraq that was branded as counter-proliferation narrative. Moreover, the nuclear-states do not respect their obligations and do not have the political will to negotiate the complete nuclear disarmament project. The NPT regime has been in force since 1970, but nuclear weapons states have always violated their material obligations that have also established the fact that the nuclear powers have opted for nuclear deterrence as a permanent security narrative and the nonproliferation as its mechanism to monitor any other nuclear ambition in the world.

Suggestions

The NBT regime is an iconoclastic development that conveys to the present ideologues of the DoN that the public perception of the 122 countries has rejected the contemporary nuclear dogma of the world based on NPT model. Thus, NPT model cannot eliminate the Nuclearism, and it obfuscates the idea of denuclearization. Therefore, the NBT regime offers a two-fold strategy for nuclear disarmament; firstly, unequivocally prohibiting the use or threat of nuclear weapons and secondly, the relevance of the nuclear energy technology option must be addressed in the process of nuclear disarmament. It is my well-considered view that all opposition from all quarters including the US, UK, and France, the new NBT regime must be regarded an unprecedented opportunity to wipe out all the nuclear weapons in the world. The NBT process has been a peregrination from the Westphalian Exceptionalism to Universal Constitutionalism construed under the idea of common good for collective humankind that gives hope for the denuclearized world ahead.

Once again, the NBT regime has presented an occasion to the global community to substantiate its perennial will to eliminate nuclear weapons in commensurate with the UN Charter mandate. The NBT is a historical accomplishment of the collective wisdom of the 122 countries and their civil society institutions and individuals. The US, UK, and France and their assertions under the joint statement are fallible, flawed and they must not treat it a political project, but it is, indeed, a massive project for the humanity by the humanity for its existential survival on this beautiful planet. However, the biggest challenge before the international community is to take full measures for making the NBT regime functional with sufficient ratifications and achieve its objectives of the global nuclear justice to the hilt.

Ph. D., LL.M, Faculty of Legal Studies, South Asian University (SAARC)-New Delhi, Nafees Ahmad is an Indian national who holds a Doctorate (Ph.D.) in International Refugee Law and Human Rights. Author teaches and writes on International Forced Migrations, Climate Change Refugees & Human Displacement Refugee, Policy, Asylum, Durable Solutions and Extradition Issus. He conducted research on Internally Displaced Persons (IDPs) from Jammu & Kashmir and North-East Region in India and has worked with several research scholars from US, UK and India and consulted with several research institutions and NGO’s in the area of human displacement and forced migration. He has introduced a new Program called Comparative Constitutional Law of SAARC Nations for LLM along with International Human Rights, International Humanitarian Law and International Refugee Law & Forced Migration Studies. He has been serving since 2010 as Senior Visiting Faculty to World Learning (WL)-India under the India-Health and Human Rights Program organized by the World Learning, 1 Kipling Road, Brattleboro VT-05302, USA for Fall & Spring Semesters Batches of US Students by its School for International Training (SIT Study Abroad) in New Delhi-INDIA nafeestarana[at]gmail.com,drnafeesahmad[at]sau.ac.in

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International Law

Refugees In The Outbreak Of The Pandemic

Parismita Goswami

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Rohingya refugees fleeing conflict and persecution in Myanmar (file photo). IOM/Mohammed

The COVID-19 today is having an adverse impact on our lives although it has brought exceptional changes in climate and human behavior. The increasing number of refugees and internally displaced persons in the 21st century explains the intensified global scenario. The refugee crisis is the greatest humanitarian crisis the world has ever seen where most of them are internally displaced persons. Yet, they are humans with unique life experiences; they had dreams, children who are dwelling hopes of normal life, and a better tomorrow. The mothers are longing to return home, fathers yearning to work again, and an identity. Leaving behind their homes, being prosecuted from the country, and losing their loved ones; refugees had gone through the worst of time. Refugees are the worst sufferers in this 21st century. Around 80 million homeless people in the world most of them are from Syria, Afghanistan, South Sudan, Myanmar, and Somalia. The Syrian crisis reported being the greatest refugee crisis in the world. The United Nations also estimated the women and children to be the worst sufferers.

The refugees were tormented by years of poverty, poor health, and lack of basic infrastructures like education, food, health care, sanitation, social security, and etc. Humanitarian organizations have stretched beyond their capacity to help millions of refugees over the years. The WHO and UN Refugee Agency have signed new agreements to provide health services and benefits to the displaced and vulnerable population around the world. Among the 79.5 million forcibly displaced individuals lacks access to clean water or soap. Despite social and economic setbacks due to the pandemic, health is still the paramount factor affecting the poor and homeless. During the COVID-19 situation around the world food, medicine or sanitary products and even clean water have become inaccessible for many refugees. Social distancing has become a major concern in the refugee camps.

Challenges Upfront

The COVID -19  is severely affecting the education of the children in the refugee camps. In the refugee camps only 63% of refugees are enrolled in primary school and 24% in secondary education where most of the children are left out. The limit in pursuing education continues potentially in the refugee camps and its worsening due to the pandemic. There is a growing possibility of discrimination and xenophobia is affecting the process of socialization in their host country. Nevertheless, an unequal world with challenges to achieve education and skill training for self-development must be ceased.

In Yemen, more than 3 million people have been displaced and approximately 17 million require food. Yemen’s health facilities have either been destroyed or damaged in the conflict and with the unbridled transmission of COVID‑19 in Aden; Yemenis are living through the worst humanitarian crisis. Only a few health centers are operational in Yemen where the numbers of patients suffering from malnutrition, cholera, dengue fever, and injuries of war are very high.

In India almost 18,000 Rohingya refugees are taking shelter where thousands of them live in densely populated settlements in preposterous conditions; a third world country with the second-highest population in the world. India can hardly feed its population and especially it hosts a huge number of Refugees. Tibetan and Sri Lankan refugees have access to certain rights as assisted by the government, while the Rohingyas are still struggling for it. But, in Bangladesh, the WHO is working with governments to secure the health of nearly one million Rohingya refugees against the multiple threats of the pandemic and including natural disasters in the upcoming monsoon season.

The COVID-19 is increasing the needs and vulnerabilities of the Refugees. The United Nations High Commission for Refugees (UNHCR) is concerned about the collateral effects of the pandemic among the Refugees. According to the UNHCR’s Assistant High Commissioner for Protection, due to the degrading socio-economic plight of the forcibly displaced people and poverty among them has made them a target to several traffickers that are immorally exploiting and profiteering from their culpability. The adolescent girls and children have become the victims of sexual exploitation, forced labor, slavery, and organ removal, forced recruitment into armed groups, forced marriages, or forced begging. The COVID-19-related impacts on restricted movements, closures, or availability of proper help, support services are put to constrain. The pandemic has limited the opportunity for the refugees, particularly women to seek legal support for sexual and gender-based violence.

On the World Day against Trafficking, the United Nations Office on Drugs and Crime, UNHCR proposed for support in the prevention of trafficking and response efforts globally. The Governments and humanitarian actors together must ensure and assist the victims of trafficking

mostly among the displaced people where they are in immediate need of protection. A major initiative was taken by the WHO Eastern Mediterranean Regional Office (EMRO) to monitor the events and trend of COVID-19 among displaced populations in camps and non-camps settings for their safety.

Conclusion

 Resources are available in scanty, refugee camps and settlements are becoming overcrowded and many are being forced to sleep outside in freezing temperatures during the winters. For those living in refugee camps or camp-like situations, they also face an increased risk of COVID-19. In refugee camps, it is difficult to practice public health measures like frequent hand washing or social distancing. Therefore, it is also the responsibility of the host government to provide aid and essentials to the refugees living in their country. But in many cases, the host governments don’t have enough financial capability but can arrange testing services in certain regions, regardless of whether an individual is a national or a refugee. Secondly, even though high-income countries are currently most affected, they need to assist low- and middle-income countries because those countries don’t have the means to deal with COVID-19. The outbreak of the pandemic in populous and poor countries will put the rest of the world at continued risk.

It’s true of the fact that the world was not prepared for a pandemic and COVID-19 does not respect any boundaries. But, the governments should not use pandemic as an excuse for applying repressive policies. Efforts should be made spread information in every camp that have limited source to reliable information about COVID-19 and measures of protection.

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International Law

Understanding the unlawfulness of the Law of Armed Conflict

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The contravention of rules outlined in the Law of Armed Conflict has created an environment of exploitative exceptions in the understanding, and applicability of human rights and security in theatres of modern warfare. As these exceptions pave way for the proliferation of national might in the name of national security, and combatant safety, the human suffering for non-combatants also witnesses a proportionally massive upsurge. The changing (mis)understanding of these regulations calls for a review on the accountability and necessity of jus in bello, and its weakened importance under the ambit of the law of armed conflict, and the greater International Humanitarian Law.

More than often, man-made conflicts have been responsible for the decimation of life and property around the globe. Even though human casualty stands divided between conventional and non-conventional threats in a modern world, the protraction of man-made conflict is mainly responsible for loosening up tides after tides of bloodshed for physical or territorial gains. However, with the advent of the prospect of domestic/international accountability, and a fool-proof system of checks and balances, mankind’s warfare is held by tighter strings of transparency and justifiability, adorned by rules and regulations. Nonetheless, it is very important to analyse and understand if its techniques of armed conflicts and subsequent regulation are stringed by laws of conduct to create a policy of accountability and fairness equally amongst participating parties or are riddled with discriminatory practices, apropos to an obscure understanding of who is sacred and who is profane. Rather unsettling, the horrors of war have time and again been governed with a rather small yet informative account of jus in bello (justice in war) or the law which governs how warfare is conducted, centred in the Law of Armed Conflict.

Jus in bello falls within the ambit of the International Humanitarian Law (IHL), and as the semantics suggest, it indeed is purely humanitarian in its objective to limit human suffering in modern warfare through a strict set of pre-decided rules. Jus in bello is independent of the questions about the reason for war, or its basic rules, which in turn is explained by jus ad bellum(the law of waging war). Jus in bello, if we analyse through its literary content, consists of two parts. The first part explains principle determinants for a proper quantum of force required in armed warfare if limiting warfare is ever the case in humanitarian laws. The second part guides us through limitations and prohibitions in warfare if not complete cessation, which reminds of the old age tradition of centripetal discussions around international peace and security, albeit to no practical effect. In contrast to the humanitarian nature of the IHL, the first part of jus in bello aims to indulge the parties in conflict with a categorised, and diverse set of paradigms for use of violence. In a dubious exception, it can also encourage the parties to use toolkits of violence on adversaries, if it is justified with international/domestic military necessity, regardless of the means of interpretation, e.g. Turkey’s raid over Syria. Nonetheless, the rule of active distinction in IHL between combatants and non-combatants aims to impose limits on destruction and suffering in armed conflicts. However, the interpretation of the exceptional military necessity, proportionality, and distinction (MNPD) principles in IHL makes the death and injury of non-combatants casual, by emphasising on the miscued understanding that any unintentional attack with extreme unaccountability on non-combatants can, and will be classified as “collateral damage”. It ends up giving a sense of irresponsibility, justifiability, and immunity to the unprejudiced actions of the armed combatants since their actions are no longer a criminal or civil liability.

Fortunately, the second part of jus in bello adheres to the responsibilities in humanitarian law and imposes strict, absolute limits on certain instruments and modes of violence which can most certainly, if given a free hand, increase human casualty and suffering. These rules are extremely significant and cannot be exploited for potential military advantages. It is extremely altruistic to non-combatants. Nevertheless, a major limitation of the second part, as a general exception concerns the legality of warfare in the treatment and torture of prisoners of war by nation-states, regardless of the combatant and non-combatant status. One such example of that exploited limitation is the question on the authorization of torture, and indignation by US Personnel in the infamous Abu Ghraib prisons, which is backed by a textbook excuse that under US military commissions, information acquired through torture, generally inadmissible in domestic US civil/military courts will be considered as evidence for the sake of its internal security, and can ignore international laws and declarations. Fundamentally, even though this rule is in contrast with The Military Commission Act of 2006 section 6 (c)(1), the international organisations, honouring their commitment to the UN Charter Chapter 1, Article 2(7), limit their intervention in the matter. This is even though the US has ratified UNCAT Convention against Torture, and stands in clear violation of international decrees.

Moreover, the penumbra veiling the opacity of scores of military commissions, omissions and laws in this particular matter by different nation-states has threatened to unsettle various humanitarian provisions in jus in Bello, to evolve with the growing needs of armed conflict, primarily after the US’s war on terrorism. Major western nation-states like the UK and the US have called for a case by case approach into evidence gained from torture, taking a cue from Churchill’s “supreme emergency” dictum, henceforth, threatening to make torture a tool of plausible military necessity, which is unproportioned and discriminatory towards non-combatants.

Articulating the terminology change in IHL over due course of time, and an itemization of new crimes post-World War II, it is to be brought into notice the alarming plethora of provisions that have changed course in jus in bello. Regardless of the differentiation between combatants/prisoners of war, and non-combatants in Article 37(1) of Additional Protocol I and Article 44 of Protocol I of Geneva Convention, the lack of trust among state actors over doubtful logic and morality due to the inclusion of irregular fighters, non-state actors, and foreign fighters in modern warfare leads to unprecedented failure to comply with the second part prohibitions. This has resulted in the loss of a great majority of non-combatants in the conflicts of the 21st Century.

Furthermore, with the increasing reliance on tech-based warfare to minimise combatant casualty among state actors, WMDs have been the instrument of choice against the belligerent party. Unfortunately, the volatile firepower of such weapons, as well as its unprejudiced understanding between combatants, and civilians are judged under MNPD principles. Regardless of its clear military, and political danger over misuse, it is still accepted frivolously in the international community, and among state actors as a weapon of choice. The existence of nuclear weapons even after strengthened efforts towards non-proliferation, and its evolving doctrines of use among various nation-states, is an example of this effort to sham jus in bello, which is acting towards effective distinction in conflicts. The concept of the use of WMDs as a possible deterrent or a method of national self-defence is heavily prejudiced and debated in the international legal community, which openly admits that it cannot regulate the legality or illegality of such weapons by a nation-state in cases of self-defence, whatever the interpretation may be. Instead, they added this responsibility on MNPD principles, and un-verified claims of user assessment for self-defence, which technically does nothing to put a halt on the proliferation of WMD usage as an instrument of fear-mongering, e.g. the Democratic People’s Republic of Korea.

In the end, the lack of political will, and international compliance, marred by selfish national interests have worked more to change the law of armed conflicts, rather than strictly implementing it. The increasing reliance on the first part of jus in bello threatens to omit the second part from IHL, resulting in warfare and conflicts in modern times without a leash to save civilians from the unavoidable line of fire. It is high time that the international community takes a stand to promote and propagate the relevance of IHL to preserve the purity of conventions in place years ago, without pressure from major nation-states. These conventions find their relevance even now until mankind in its very nature of gaining more power decides to uproot it once and for all.

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International Law

How India’s Current Digital Strike Against China Is well-Protected Under article 14 Of Gats

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As the military tensions between India and China were steadily increasing due to Chinese intrusion into India territory at the Galwan valley, India on 29th June, 2020 launched a digital strike against China to counter its unwarranted territorial aggression. In a press release as issued by the Indian government, it was stated that 59 applications were decided to block as such applications are “prejudicial to sovereignty and integrity of India, defence of India, security of state and public order”.

Certainly, the digital strike has been hailed by many countries that were aware of the rising accusations of Chinese surveillance on sensitive communications. China has often been blamed for the act of stealing foreign intellectual property for its military advancement. The Chinese government has been using these applications as a medium to institutionalize a system that legally and illegally acquires the foreign technology for its domestic advantage and strategic development.

Although, as this Indian geo-political move has much significance in the ongoing debate of protecting the sovereignty of India, China, on the other hand, has threatened to sue India at WTO dispute resolution forum for potentially violating the multilateral WTO agreements. China has termed this Indian app-banning move as an abuse to national security exception. It has stated that this move is ‘selective and discriminatory’ and against ‘fair and transparent procedure requirements’ thus, violating the trade-liberalizing agreements. However, India has squared-off all the Chinese claims by terming them frivolous because India’s WTO sovereignty and national security defence argument in this incident is much stronger and infallible.

Therefore, in this article, I would be discussing that how India’s recent measure is protected under the provisions of Article XIV (a), XIV (c) (2), and XIV Bis of GATS and thus how it raises a strong stance in favour of India that can rebut the baseless Chinese WTO threat.

Article xiv and xiv bis of the gats

GATS is a multilateral agreement that is established to provide rules for trade in services with a view to the expansion of such trade while ensuring transparency and progressive liberalization in order to promote the economic growth. Although this agreement desires to achieve a higher level of liberalization, it still recognizes the right of Member-state to regulate, and to introduce new regulation, on the supply of services within their territories to meet national policy objectives.

Article XIV is one such provision articulated in the agreement that provides the Member-state to accommodate other policy goals and choices made in accordance with domestic laws and societal values. This article expresses the scope of particular matters related to national importance including privacy and public order. Moreover, Article XIV bis is another such provision that accommodates security exceptions that provide the room for implementing those actions which it considers necessary for the protection of its essential security interests.

India’s move of blocking applications is well-based on these provisions that provide the sovereign country like India to take all policy measures which protects the security of its state and thus, its recent measures are protected under these Articles.

Measure protected under Article XIV (A) of GATS

Article XIV (a) gives the liberty to the member-state for adopting or enforcing any measures that are necessary to protect public morals or to maintain public order. According to the Panel Report in dispute of United States –Gambling, public order has been defined as “the preservation of the fundamental interests of a society, as reflected in public policy and law.”

In the same WTO dispute, two-tier analysis of justifying the member-state measure under this specific provision has been provided. The panel states that member-state has to satisfy two elements that are firstly the measure must be one designed to “maintain public order”; and secondly the measure for which justification is claimed must be “necessary” to maintain public order.

In the present scenario, India’s measure to ban the 59 Chinese apps was necessary to maintain the public order. As India provides the primary market of digital space, there is a higher risk of exploitation of fundamental interests of the society and its citizens. According to the Ministry of Information Technology, many complaints were filed with them which summarily reports about misusing of these applications to steal and underhandedly transmitting users’ data in an illegal manner to data servers that are located outside the territory of India. Therefore, it was important for India to protect the fundamental interest and values of its citizens and thus, a necessity which is an objective standard has been evolved for India to take such WTO-consistent repressive measure which was reasonably available to protect the public order of its country after following the test of weighing and balancing a series of factors as determined by Appellate Body in WTO dispute of Korea-Beef.

Moreover, as this measure promotes the maintenance of public order, it was found by the appellate body in the dispute of US-Gambling that the member-state is not obliged to explore and exhaust all other reasonably available alternatives and there is no need for prior consultations with the counter-part before implementing such measure and thus, this measure is WTO-consistent and protected under Article XIV (a) of GATS.

Measure protected under Article XIV (C) (2) of GATS

This Article provides the liberty to the member-state like India to adopt or enforce such measure that is necessary to secure compliance with such laws and regulations that are not inconsistent with the provisions of GATS. Further, this provision provides a non-exhaustive list of those laws or regulations that are not inconsistent with WTO and clause (2)specifically provides a WTO-consistent provision that relates to “protection of the privacy of individuals in relation to the processing and dissemination of personal data and the protection.” In the WTO dispute of Mexico-Soft Drinks, the Appellate Body explained the meaning of law or regulations and held that such term is used to denote the rules including international agreements that form part of the domestic legal system of a WTO member-state.

Under this provision, it is necessary to show that the measure which is enforced was necessary and was further designed to secure compliance with the WTO-consistent law. Undeniably, the current measure which banned the Chinese apps was particularly designed to secure compliance with the Indian Constitution (WTO-consistent law) as well as other Indian legislations that accounts for protecting the privacy of its citizens as these apps were threatening and violating the privacy of its users. This measure is said to be securing the compliance as its design reveals that the certain measure protecting the right to privacy of its citizens under Article 21 of the Constitution.

The Supreme Court of India in its landmark decision held that right to privacy including the aspect of information privacy is a facet of Article 21 of the Indian Constitution and thus it is a fundamental right guaranteed to everyone. Therefore, when the Indian government was satisfied that there was a reasonable apprehension regarding the security of data and breach of privacy of its citizens due to operation of such certain apps, it became indispensably necessary for the Indian government to enforce such WTO-consistent measure to ban these applications to protect the privacy and sensitive data of its citizens from being harmed and intruded. Moreover, the Appellate Body in dispute of Dominican Republic-Import and Sale of Cigarettes held that the member-state has the whole right to determine for themselves the level of enforcement of their WTO-consistent law, thus this measure was necessarily implemented to secure compliance with the Constitutional principles of India and hence, this measure is protected under Article XIV (c) (2).

Measure protected under Article XIV BIS of GATS

This article provides for the security exceptions that allow the member-state to take any actions that are required to preserve the sovereignty and national security interests of its state in times of war or any emergency in international relations. The recent ban of these 59 apps was in regard to terminate their usage as it was reported that these apps were being engaged in activities which were prejudicial to sovereignty and integrity of India and have been acting hostile to national security and defence of India. Such threats to the pillars of democracy required emergency measures and therefore, India’s measure to disallow the usage of these applications was a result to ensure safety and sovereignty of Indian cyberspace.

Moreover, this action of India cannot be seen in isolation and there is a need to appreciate the geo-political evidence revolving around India that aggravated the situation. There was a weather of emergency created in India due to the repeated aggression shown by the Chinese government at the Line of Actual Control. Even 20 Indian soldiers were martyred during the violent face-off with the Chinese counterpart. Such incident potentially raises a situation of emergency in international relations and that further allows India to take the defence of Article XIV Bis to eclipse its digital strike under the ambit of necessary and strategic action taken to protect the security and sovereignty of India.

Conclusion

For China, the doors of WTO are ajar to try its last fling to protect its shameful diplomacy of unfair practices; however, approaching to this organization will do more harm than good for China as the case of India is strong and firm. India’s current diplomatic measure is clearly WTO-consistent and squarely falls under the Security and General exceptions provided under GATS, therefore, there is no instance of trade violation. Instead of giving a baseless threat, China should try to mediate and consult the issue with the Indian government to protect the trade market that it used to enjoy before the ban. It should also try to introduce reformative measures that ensure accountability and transparency amongst the links between the Chinese government and the Chinese economic players. The world is now aware of the dirty economic strategies that China is implementing to build a Chinese century and this time, the world would rebut back with stronger measures just like India declared a digital war against China.

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