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International Law

2017 ICJ Elections and India’s Win: A lateral view

Nithin Ramakrishnan

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The ICJ Elections 2017 undoubtedly represented a historic moment in International Relations. For the first time in history, the United Kingdom, P2 of the UNSC, has lost its seat in the International Court of Justice since its establishment in 1946. International media describes this as a true reflection of the changing global order and a huge diplomatic loss not only for Britain but also for the privileged bloc in the United Nations.

National media, on the other hand, is busy praising Indian diplomacy and the Ministry of External Affairs and its role in shifting the balance of power away from the Security Council in the United Nations. However, some lateral thinking on the issue brings me to a few other questions. First, what do the 2017 ICJ elections mean to the International Judicial Conscience? Second, is it a historic moment for International Law? Third, does this lauded victory of the UNGA against a P5 nation mean anything beyond an aberration in the existing world order? Let me begin my lateral view on the issue, by addressing these questions in the reverse order.

The European media condemns the British failure as a punishment for Brexit, alongside other diplomatic losses the United Kingdom suffered very recently. Almost on the same day, it withdrew from the ICJ Elections, the U.K. failed to prevent EU agencies such as the European Medicines Agency, and the European Banking Authority from moving out of London.  Earlier in June, the United Kingdom had again failed in its attempt to prevent the UNGA from requesting an advisory opinion from the ICJ on the sovereignty of Chagos Islands, over which the Westminster has considerable interest. A common phrase describing these losses is the United Kingdom’s “diminishing status” in the world order.

Nevertheless to represent the situation as UNGA’s victory or Global South’s victory is something a far-fetched imagination. The very same evidences may be presented together to forge an argument that the political scenario doesn’t represent an equation between the global north and south, as everyone is arguing, but rather is about the north (U.K.) v. north (E.U.). It can even be argued as a scenario representing a North – North co-operation, between the Northern U.K. and a seemingly North, India. This is a perfectly arguable proposition, given that India is now closely working with the United States and the remaining western bloc, pitching against the Asian dominance of China. There is hardly anything for the Global South in it, or anything substantially against the P5 nations. It is highly unlikely that this event may initiate or condition the change in the current structure or functioning of the United Nations.

The Global South need not benefit anything particularly from this win for at least two reasons: (1) In the ICJ, there won’t be much change in the judicial policy, as J. Bhandari himself asserted that he would continue representing the common law system inherited from the British, and (2) there is increasingly a chance that India may play North in order to keep pleasing its new found allies and other self-interests. Look at the U.K’s trade interest with India, which the Government of the U.K. is highlighting to save its face, and which the Indian protagonists portray as a double-win for India. A thorough reading of these statements of Indian and the U.K diplomats can reveal the global elite synergy, if not connivance. Take a counter-narrative to the incident, where instead of India, Lebanon (who found more support that U.K. and India in 2017 ICJ  and whose win was crucial in creating this deadlock) remained in the deadlock. The UNGA would have supported them too with the same vigour and vehement, but, could it have precipitated the same result? No, I believe. Now even if we reimagine the narrative with a Chinese-aligned India, the result would be again not the same. This means that should the U.K. withdraw, then it cannot go against the interests of the North. We must also remember that 2107 elections is not going to establish a precedent of the UNSC candidate withdrawing from the elections, yielding to the will of the General Assembly. It is just a political choice of the United Kingdom.

This brings us to the second question of interest whether it represents a historic moment for International Law, it must be argued “nought”. Once again, the general reluctance of the nation-states to resort to the international legal system prevailed over the better interests of International Law. The nations by settling the issue among themselves circumvented Article 12 of the Statue of the International Court of Justice into action. Many would argue International Law is not a Law, or the International Court is not a Court, but a disguised political interest and institution respectively. Yet, Article 12 is much more than that of a simple political scheme. It is a part of a legal instrument which established the World order after the World War II and has the seeds of representing the will of an international community more than the will of the nations.

Article 12 of the Statute speaks about constituting a joint conference of 6 members, three each from the UNSC and the UNGA to fill the vacancy in the Court based on an absolute majority. India’s Permanent Representative to the United Nations, Syed Akbaruddin has denounced this method as an out-dated instrument and has said that 3 or 9 persons cannot decide upon the judges comprising the World Court. Others had argued that the joint conference mechanism is a trump card of the UNSC. While this may be a possibility, it is probably not the only possibility. Article 12(2) read with Article 10(2), and Article 2 of the Statute could have far more implications than those represented by the above claims. Article 10(2) of the ICJ statute could have barred any veto power gambit in matters connected with the joint conference, whereas Article 12(2) could have opened up an opportunity to nominate a person of high international standing and judicial capacity beyond the nominations forwarded by the respective nations. Though it is highly ideal and unlikely to happen, a resort of the Article 12 procedure could have set a precedent in favour of the international community against the power-play of nations, since in any case, it would leave open the way to invoking Article 12(2). Remember that in 1921, when the procedure of joint commission was used for the first and the last time, a judge was chosen not from the candidates in the deadlock. It is also interesting to note that Article 12 could have led us to the International Court of Justice for deciding which candidate should fill the vacancy if the stalemate continued even in the joint conference. Therefore, viewing it from the perspectives of a student of International Law the ICJ elections 2017 lost an occasion to open up new opportunities in International Law and also an opportunity to attempt further experiments in submitting an issue to a structured extra-national process.

While the international diplomats described Article 12 as a strange process and as a trump card in the hands of P5 nations, they seem to have ignored summarily the 1985 legal opinion provided by the United Nations Secretariat on the International Court of Justice Election Procedure to be followed in the Security Council and the General Assembly. The opinion has clarified regarding the procedures involved in the operation of Article 12. The legal opinion has even suggested recommendations as to composition of a joint conference such that (i) the General Assembly representatives will not be delegates of States represented in the Council; (ii) it allows for maximum representation of different systems of law; and (iii) the members are elected such that they should not have a direct interest in the outcome of the elections. It appears that all these legal issues were kept in the wings, while the diplomatic activity was in full swing at the ICJ elections 2017. This is a flagrant violation of the Principle 2.3 of Burgh House Principles on the Independence of the International Judiciary, which requires appropriate safeguards against nominations, elections and appointments motivated by improper considerations and also calls for transparency in all these processes.

This brings to the last and most important question, which I raised earlier, what it means to international judicial conscience. The growls and grunts which overshadowed the ICJ elections 2017 is completely oppugnant to the spirit of Article 2 of the ICJ statute which boldly states that the Court should only be composed of independent judges, elected regardless of their nationality from among persons of high moral character. Therefore this historical moment represents nothing but a general reluctance on the part of the Sovereign nations to submit to anything which is genuinely extra-national process and an obvious violation of Article 2 of the ICJ Statute. We must remember the principle of judicial independence enshrined in Article 2 of the ICJ Statute is highly unique in that it mandates to constitute ICJ with Judges, regardless of their nationality and diplomacy. It required the nation states to work together in building up a judicial institution of the highest quality all-inclusive jurisprudence. The scope of Article 2 is such that individuals even from non-State parties to the ICJ Statute can become Judges of the Court.  It is highly unfortunate that when Article 2 proudly describes a system of an election where individuals are brought to the Court, not citizens, J. Bhandari, soon after the elections, is reported to have declared his re-election as a victory of India and Indians. Historically, it is argued that the court must be more of the character of a judicial procedure and less of a diplomatic accommodation. However the ICJ elections 2017, in total, seem to have reached new heights in terms of diplomatic involvement and the diplomats seem to have appropriated the judicial appointments process for themselves and for their rat race. Much desolate, International Judicial Conscience is choked and is deprived of any expression and role in the appointments of the judges of the ICJ. It is a wonder how the international community considers the 2017 elections as the historical precursor to the United Nations reforms. For me, it would be extremely surprising if anything of that sort ensues. Ideally speaking, this was the right time for the ICJ to invoke its powers under Article 70 of the Statute and could have recommended amendments to procedures involved in its judicial appointments. Unfortunately, even this seems to be nearly impossibility, while we are eloquent about UN reforms. Having suffered such severe contempt to its structure, this could have actually saved the face of the International Judicial Conscience; forget the diplomacy of the UNSC or the UNGA, whose adoption is needed for bringing such amendments into force.

Nithin Ramakrishnan is an honorary fellow of the Centre for Economy, Development and Law (CED&L), an academic think tank backed by Government of Kerala. He is also an Assistant Professor of Law, at Chinmaya University for Sanskrit and Indic Traditions, Ernakulam, India.

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International Law

A sea and thousands of concerns

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The name of the “Caspian Sea” has been recently heard more than any other time! In the meantime, there are rumors, ambiguities and, of course, concerns that need to be described in the Convention on the Legal Status of the Caspian Sea which was signed on August 12 in the port city of Aktau, Kazakhstan.

Accordingly, there are some important points that calls for attention and scrutiny. In general, over the past 21 years, several meetings have been held on the Caspian Sea and how the coastal countries should be benefited from its resources. In these meetings, legal, security, economic, and even cultural cooperation were discussed among the littoral countries.

After more than two decades of fraught diplomatic efforts, the five littoral Caspian nations – Russia, Iran, Kazakhstan, Azerbaijan and Turkmenistan – agreed upon a legal framework for sharing the world’s largest inland body of water. However, as long as all disputes, especially legal conflicts between the participating countries aren’t resolved, it is impossible to talk about the establishment and continuity of sustainable relations among these countries. It should be noted that over the past two decades, one of the main tasks of our country’s Ministry of Foreign Affairs has been to direct this case and determine its legal convention.

1) Prolongation of the finalizing process of a case is not undesirable if it’s the result of scrutiny in the legal and technical parts. This is the case with determining the legal dimensions of the Caspian Sea Convention. After the collapse of the Soviet Union, we witnessed a kind of transformation in the Caspian legal regime. The Soviet Union was divided into 15 countries.

Consequently, Russia, Kazakhstan, Azerbaijan and Turkmenistan each became a separate and independent variable in this equation. Undoubtedly, the transformation of a two-variable legal equation into a “legal-security” multivariable equation is not considered a simple transformation. Therefore, we should understand the complexities of the Caspian case.

The countries of Iran, Azerbaijan, Turkmenistan, Russia and Kazakhstan each have specific demands regarding their share of the Caspian Sea resources. Making a balance between these demands and subsequently realizing them is very difficult and complicated. What is important in this context is to strengthen the “principle of cooperation” among the Caspian coastal nations, and to define joint maritime projects among all neighboring countries to protect the Caspian Sea.

Another point to be taken into consideration here is about the draft of the Caspian Sea Legal Convention and the role of the Foreign Ministry in this process. As mentioned above, the Caspian Sea Case has been open for more than two decades and has not yet come to a complete conclusion. Negotiations held among the Caspian Sea littoral states should distract our attention from the realities.

It should be noted that the establishment of the Caspian Sea Legal Convention is the basis for solving the existing disagreements over the Caspian Sea and defining concrete and conclusive cooperation among the littoral countries. A remarkable part of such security and economic cooperation will be the result of this convention.
In other words, the Convention on the Legal Status of the Caspian Sea can’t and shouldn’t be taken as in the same level with “defining the security and economic cooperation” between the coastal countries. Undoubtedly, the definition of economic, security and even cultural cooperation between the coastal countries depends on the settlement of legal disputes between these countries and setting of a common legal convention.

2) Speaking of controversial issues such as Iran’s 50 percent share of the Caspian Sea, which couldn’t be fulfilled even before the collapse of the Soviet Union, and the creation of false subjectivities in the country, by those who claim to be the representatives of our people, has no result except for the weakening of national security.

his is while the Iranian president, Hassan Rouhani, had emphasized that “we should recognize there are more important issues that need to be addressed.”
This is a legal process, and one of the main tasks of our country’s diplomacy and foreign policy system is to manage and direct this complex process. Obviously, under the current circumstances, expressing biased and targeted words will only lead to the loss of focus of our country’s diplomatic apparatus on this critical case.

Finally, it should be noted that good commitments were made during the meeting among the countries involved in this case. Today, the ministers of foreign affairs of the Caspian littoral states, unanimously emphasize on the necessity of the absence of foreign forces in this region, which is a positive trend. Moreover, from the statements made by the foreign ministers of the Caspian littoral states, we understand that their cooperation on resolving existing disputes has become faster than before.

However, until all legal conflicts between the Caspian littoral countries are not totally resolved and the Convention of the Caspian Sea Law Convention is not perfectly codified, we can’t think of this legal and strategic case as closed and settled. Therefore, in this critical situation, all efforts should be made so that Iran can benefit most.
It is emphasized here that even one singled legal disagreement should not remain among the players involved in the case. Meanwhile, the mechanism for resolving disputes should be carefully decided. Therefore, while welcoming the settlement of the existing disagreements over the Caspian Sea, there shouldn’t be any haste in completing this process.

First published in our partner Tehran Times

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International Law

Iran has to be very careful in future negotiations on Caspian Sea

Payman Yazdani

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Professor of political science says although the text of the Caspian Sea Treaty signed on August 12, 2018 in Kazakhstan does not define the share of each of the littoral states, Iran has to be very careful in future negotiations.

Five Caspian Sea littoral states signed Caspian Sea Treaty on August 12, 2018 in Kazakhstan. The agreement has created many debates about the share of Iran in Iran.

To know more about the issue we reached out to Nader Entessar Professor Emeritus of Political Science in University of South Alabama.

There are many debates on the legal regime of the Caspian Sea. Some argue that according to the treaties of 1921 and 1940 between Iran and the USSR, the share of Iran equals to 50% of this sea. Is Iran’s share stipulated in those treaties?

Nader Entessar

No.  Neither the 1921 nor the 1940 treaties specify that Iran and the USSR each share 50 per cent ownership of the Caspian Sea.  Both of these treaties talk in general terms about the resources of the Caspian Sea being the used by Iran and the USSR without stipulating the exact ownership of the seabed, boundary delimitation, and other related issues.  We have to remember that these two treaties were signed well before the United Nations Convention on the Law of the Sea (UNCLOS) was drafted and came into force.  Therefore, the 1921 and 1940 treaties could not have foreseen the complex issues of maritime boundaries that were discussed in UNCLOS.

Based on the international law, what is the legal status of the Caspian Sea after the collapse of the USSR and the sharing of the Caspian Sea by the five littoral states? Some bring about the idea of 20% sharing? Is there any base for this idea in the international law? 

The answer to this question depends on if the Caspian is defined as a “sea” or a “lake.”  If one classifies the Caspian as a lake, then according to international law its resources should be divided equally among the five riparian states.  However, if the Caspian is designated as a sea, then the five littoral states should draw lines extending from their shores to the midway point with littoral neighbors.  This explains why for many years Iran had insisted on defining the Caspian as a lake.  However, it appears that the five littoral states agreed in Aktau that the Caspian is a sea.  That is why some observers have argued that in the final delimitation agreement, Iran will end up getting not only about 13 per cent of the Caspian but also the saltiest and deepest part of it.

Is the share of each of the littoral states from the Caspian Sea defined in the convention signed on August 12 in Kazakhstan?

No, the text of the Caspian Sea Treaty signed on August 12, 2018 in Kazakhstan does not define the share of each of the littoral states.  In so far as Iran is concerned, this issue will have to be determined in a future agreement with Azerbaijan and Turkmenistan.  Iran has to be very careful in future negotiations with its two neighbors because the resulting boundary agreement will determine Iran’s final Caspian share.

What is the main achievement of the Aktau Convention, signed on August 12 in Kazakhstan, in regards to the legal regime and status of the Caspian Sea?

Although some reports have referred to the Caspian Sea Convention as a “landmark agreement,” I don’t view this agreement as such.  Its main achievement was that after more than 20 years of contentious diplomatic efforts, the five littoral states of the Caspian Sea finally agreed on a legal framework for sharing the resources of this significant body of water.  There are some clear and specific agreements in the Convention.  For example, all five littoral states agreed to 15 miles of sovereign waters, plus a further 10 nautical miles of fishing area.  But the wording of the Convention remains vague in many parts of the document, thus delaying divisive decisions that have to be made in future negotiations.

First published in our partner MNA

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International Law

Fifty Years of NPT: Weaknesses over the course

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NPT is a landmark treaty that lies at the heart of non-proliferation regime (NPR). In July 2018, Fiftieth anniversary of the NPT has been celebrated. Theoretically, NPT is committed to the goal of arms control and aims to accomplish the nuclear disarmament. For this purpose, the NPT member states are devoted to pursue three key objectives of the treaty: prevent horizontal proliferation, state’s right to use nuclear energy for peaceful objectives, and nuclear disarmament. However practically due to shifting US’ alliances, major power politics, and growing arms race, the fifty years of NPT has only delivered “Distress, Conflict and discrimination”.

Loopholes and weaknesses exist in NPT which are being misused by Nuclear Weapon States (NWS) and Non-Nuclear Weapons States (NNWS) of the treaty. Despite the NPT’s presence for 50 years and an expansion in its membership, atomic weapons have not been wiped out from the world. All the NWS aim to maintain their nuclear weapon state status due to their security or strategic concerns. Despite the dialogues of arms control, all major and smaller nuclear weapon states are committed to maintaining credible deterrence and strategic balance. Such aspirations of NWS demonstrate that major powers party to the arms control and disarmament treaty are merely the silent spectators to the existing weakened structure of the so called universal treaty of 191 member states due to their own vested interests.

The fifty years of NPT have reaffirmed that the universal mechanism to fight with nuclear proliferation and achieving the objective of disarmament is not adequate for two reasons: first, the international mechanism of non-proliferation has failed to deal with the few potential proliferators; secondly, strategic and security concerns of NWS and NNWS has undermined the Articles I, II, IV, VI and X of the treaty. In spite of the fact that until the 1980s worldwide measures to counteract atomic multiplication were generally more effective, yet in the subsequent years the NPT was not much successful to counter the aspirants of nuclear capability such as North Korea, Iran, Libya and Syria. Due to inadequate mechanism and weaknesses of the treaty, now nine states possess nuclear weapon capability and approximately 30 states have the technical ability to acquire it that is viewed as serious threat to the NPT.

Despite the potentials of non-proliferation, since 1968 with participation of 191 states and various agreements and talks, an efficient and effective regime stresses on pin pointing the weaknesses and restructuring, re-evaluation and reformation of the treaty structure.  The key setback to the NPT is that the articles of the treaty are not fairly adopted by the member states due to which the regime has failed to address the significant objectives of horizontal proliferation, arms control and disarmament. For instance under Article I of the treaty, transfer of nuclear material and technology by NWS to NNWS is prohibited. But treaty has failed to address the transfer of fissile material and nuclear technology from one NWS to another NWS. Such dynamic have increased the insecurities of NNWS and resultantly forces them to take extreme measures to ensure their security .e.g. North Korea. Simultaneously, despite being the member of the treaty, the US has been providing nuclear related technology to India since 1990s under the umbrella of various bilateral treaties or agreements. India-US nuclear agreement and granting of NSG waiver to India is viewed as an intentional measure to help India increase its military buildup to carry forward strategic ambitions of the US in the Asian region.

Furthermore, the US agreement with India for joint production and development of  military related technology such as mini UAVs , distinctive kits for C130 and designing/ development of jet engine technology has played central role in speedy development of India’s nuclear program. Such development is not only the violation of NPT by the US but also compels the NNWS to acquire nuclear capability to address their security concerns.  Right of all states to use nuclear energy for peaceful objectives played key role as bargaining chip and is viewed as major loophole in the treaty due to technical similarities in peaceful use of nuclear technology and technology for military purposes. North Korea Withdrew from the NPT in 2003.Article X of the treaty provides the right to member states to withdraw from the treaty if their sovereignty is on stake. However not accepting the states’ right to withdraw from the treaty is denial of their right of self defence and violation of treaty. Therefore, discriminatory attitude, special treatment and country specific treatment pose serious question mark on the implementation and standards of NPR.It demonstrates that the regime is just an instrument of major powers to fulfill their strategic and foreign policy objectives.

The current doctrines of NWS comprise of elements warfare, which shows hegemonic mindsets of major powers and explains their reluctance to give up on their “nuclear assets”. These factors have posed negative impact on the process of non-proliferation and disarmament. Therefore it can be inferred that the above mentioned scenarios have played central role in keeping Pakistan away from joining the NPR. If NPT states want to attract non-NPT states for the membership of regime then the current member states will have to pursue non-discriminatory approach towards non-proliferation themselves.

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