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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

Human Rights Council election: 5 things you need to know about it

MD Staff

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The United Nations General Assembly held secret-ballot elections for the Human Rights Council (HRC) on Friday.  As of 1 January next year, the 18 newly-elected States will serve for three years on the UN’s highest inter-governmental body, mandated to protect and promote human rights worldwide.

While the institution has been the subject of controversy since its creation in 2006 – culminating in the withdrawal of the USA this past June – UN Secretary-General António Guterres reiterated that it plays “a very important role” in the UN’s human rights architecture.

1. First of all… how does it all work?

Elections to the Council happen annually, with countries serving for three years on a rotational basis, as some of the seats expire on 31 December every year. There are 47 seats, equitably distributed according to five regional divisions.

Countries need a minimum of 97 votes to get elected, and everything happens by secret ballot. This year, 18 seats were up for election:  five for Africa, five for Asia-Pacific, two for Eastern Europe, three for Latin America and the Caribbean, and three for Western Europe and other States.

2. So… who’s in and who’s out?

After Friday’s election, here’s how the Council will look from 1 January:

IN, elected this year: Argentina, Austria, Bahamas, Bahrain, Bangladesh, Bulgaria, Burkina Faso, Cameroon, Czech Republic, Denmark, Eritrea, Fiji, India, Italy, Philippines, Somalia, Togo and Uruguay.

IN, continuing their terms: Angola, DRC, Egypt, Nigeria, Rwanda, Senegal, South Africa, Tunisia, Afghanistan, China, Iraq, Japan, Nepal, Pakistan, Qatar, Saudi Arabia, Croatia, Hungary, Slovakia, Ukraine, Brazil, Chile, Cuba, Mexico, Peru, Australia, Iceland, Spain, and United Kingdom of Great Britain and Northern Ireland.

OUT, because they didn’t apply for a second consecutive term: Belgium, Burundi, Ecuador, Georgia, Kyrgyzstan, Mongolia, Panama, Slovenia and Switzerland.

OUT, because after two consecutive terms, they’re not eligible for re-election: Côte d’Ivoire, Ethiopia, Kenya, the Republic of Korea, the United Arab Emirates, Venezuela and Germany.

3. What does the Council actually do?

In a nutshell, the HRC is a multilateral forum to discuss anything relating to human rights issues around the world.

In addition to launching fact-finding missions and establishing commissions of inquiry into specific situations, it meets three times a year to review the human rights records of all UN Member States, in a special process designed to give countries the chance to present the actions they have taken, and what they’ve done, to advance human rights. This is known as the Universal Periodic Review.

This video explains it all in a simple way:

4. How come some countries accused of human rights violations still serve?

The HRC was created in 2006, following a proposal by former Secretary-General Kofi Annan. In a report titled “In Larger Freedom”, he noted that the Commission on Human Rights, created in 1946, was suffering from “declining credibility and professionalism” and was “in need of major reform”. Subsequently, based on his recommendations, the Human Rights Council was established by the General Assembly to replace the Commission and several measures were put in place to try and avoid the same problems that eventually arose with the Commission.

For example, as it is understood that the Council can only be as effective as its Member States, the election process was placed directly in the hands of the General Assembly, the only UN organ where every one of the 193 countries has equal voting weight.

In addition, the geographical group divisions and seat allocations are meant to prevent disproportionate focus on just a handful of regions and countries, and ensure that every country has a chance of fair consideration.

Finally, during the elections for each regional group, the General Assembly allows extra blank slates: this should theoretically ensure there are more candidates than available seats, enabling a competitive process. However, if – as was the case this year with 18 candidacies for 18 available seats – no extra countries apply, then no competition occurs, and whichever Member State applies, is likely to get elected.

5. So does the HRC make a difference for human rights worldwide?

Although human rights have always been a very sensitive matter for Member States, the Human Rights Council remains an essential part of the UN’s human rights architecture.

The Council has the power to adopt resolutions, launch fact-finding missions and investigations, and establish commissions of inquiry. In particular, the HRC can appoint independent experts on specific issues. At the moment, there are 44 thematic experts and 11 country ones appointed to monitor and report on human rights issues as requested.

All these mechanisms allow for grave violations to be highlighted and brought up on the global stage for examination, discussion and, whenever feasible, action.

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International Law

Unilateralism Vs Multilateralism

David Ceasar Wani

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During the 73rd sessions of the general assembly at the UN, the crunch of unilateralism and multilateralism between US and China kicked off, in which Trump’s unilateral visualization of the world likely to hurt the US, but it might undermine his presidency. As the competitions between unilateralism and multilateralism are viewed inversely. According to the international relations scholars, unilateralism has defined an approach in international relations in which states act without regard to the interests of other states or without their support. Unilateralism is usually contrasted with its opposite approach, yet multilateralism is acting cooperatively with other states. Though unilateralism is often used in a negative way, experts agree that there are positive aspects to occasionally acting unilaterally, such as in issues of national self-defense.

Some politicians and international experts support unilateralism, at least for certain issues. An example of a unilateral action is the U.S. President Donald Trump’s decision to withdraw from the Paris Climate Accord in 2017. The Paris Climate Accord was actually negotiated and approved by nearly 200 nations around the world, and the issue of climate change is impossible to be handled significantly without united efforts of all the countries, particular the major ones. Trump withdrew from the Paris Climate Accord, saying that it hurt American jobs and American interests as well. Trump’s decision was opposed by many experts and average people around the world including the United States.

Nevertheless, it is believed that unilateralism is a policy of dealing with affairs that may be violent, regardless of the will of other countries or nationals. Given this, the most prominent feature of multilateralism is the negotiation since it can pay close attention to the shared interests of the majority and take practical and reasonable measures to deal with affairs in international affairs. The U.S. adopts unilateralism as a kind of closed rather than open behavior. Self-interest is the American priority mentality that Trump previously reiterated, and this approach seems to be a good way to safeguard the interests of the United States, but in fact, it is inconvenient for American nationals, and for the United States.  Conversely, politics, diplomacy, and trade all have disadvantages and this disadvantage can be a hindrance to domestic investment, risk from political changes negative influence on exchange rates, higher costs, economic non-viability, expropriation, negative impact on the country’s investment, modern-day economic colonialism and etc.

From this point of view, it can be said unfavorable to Americans. The reason why the United States has become strong from a dispersed federation compared with the confederation is mainly between states. Improvement of politics and other status has enabled the United States to develop and be strong because of a strong government. If the United States 1787 Constitution was originally formulated by the founding fathers’ generation, and then adopted unilateralism and did not negotiate, it is unimaginable that there would be a powerful United States today. So now Trump adopts unilateralism, which is contrary to the spirit and method adopted by the U.S. Constitution. The threat to his presidency is great because unilateralism is difficult to promote the cooperation and development of national economies. The interests generated by the United States are very short-lived, but they pose great threats to their long-term development and the long-term interests of their citizens. Therefore, when dealing with state affairs or international affairs, multilateralism should be adopted and negotiated. The problem is that we can better safeguard the interests of all parties, maximize the benefits, and promote the development of countries and their own economies.

In conclusion, it is important to understand the evolution of China’s concept of multilateralism, because one has to begin with China’s particularly humble experience with multilateral institutions e.g. it’s being kept out of the United Nations (UN) and its institutions during its preliminary decades as also for it is being the target of UN criticism and sanctions (for Korean War) during those years. The things were to begin to change following the Sino-US rapprochement and China’s entry into the UN and other multilateral institutions from the 1970s. Another crunch change to overlap with the late 1970s was the rise of Deng Xiaoping to power in China. Deng’s economic reforms and openness become the driving force behind China’s conclusive shift toward multilateral institutions.

According to Zhang Baijia, expert at the Chinese Communist Party’s (CCP) Central School, numerous internal and external developments during the first half of the 1980s were to expressively influence Deng’s strategic thinking in three major ways: (a) Deng aborted the long-held view that world war is inevitable’ and instead stresses on ‘peace and development’ as central theme for China; (b) Deng acknowledged that the contemporary world is heterogeneous in nature and that conflicts coexist with cooperation and competition with interdependence; and (c) Deng maintained that independence does not equal isolation and self-reliance does not mean rejecting all foreign things as had been the case during Mao’s times. Change in Deng’s worldview was to result in the change in China’s approach towards international institution and towards the whole idea about multilateralism.

As a result, the whole of the 1980s witnessed extraordinary qualitative and quantitative changes as China gradually involved itself in not only international organizations in the political domain but also expanded its participation in economic and security types of multilateral forums. As regards China’s future vision on multilateralism, it has been motivated primarily by China’s felt need (a) for undermining the basis of United States’ unilateralism and its global power profile and (b) for making efforts to become acceptable as the benign rising power amongst its immediate neighbors and amongst the world at large. By far these two remain China’s most important foreign policy challenges through its rise as a major power has already been accepted as a given reality in general. The conditions have also been facilitated by external dynamics, especially following the collapse of former Soviet Union which has shifted the focus of international relations and led to the widening of the whole understanding of security and strategic calculations amongst major players therefore moving the dynamic of international power politics beyond two superpowers to include new actors like China.

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International Law

Strengthen UN, Implement UN Charterer in true spirit

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Humanity is suffering everywhere whether it is Syria or Yemen, Afghanistan or Libya, Iraq or Myanmar, Palestine or Kashmir. The one who are being killed are human beings, irrespective of his or her race, color, religion, nationality, its human lives which are being lost. Last couple of decade, around 2 million people have been killed, 6 million have been made refugees in their own country or forced to migrate to other countries. Threats and tension is felt in Iran, Turkey and North Korea, Ukraine, and many other parts of the world.  If one switches on TV or read or listen to News, it is all about War, Killings, Blasts, hate and suppressions. People are fed-up of bad news all the time. Everyone is suffering with mental torture. Geo-political situation is deteriorating rapidly. The world is less safe than few decades ago. Insecurity feelings are rising exponentially. What is new world order? On the name of World new order, we have made this world more hostile and fragile. Who is suffering, humanity! Who is the beneficiary, end of the day, no one will be winner.

United Nation General Assembly is busy in its 73rd session. Leaders from all over the world are meeting each other and making speeches one after another, but what will be the out-come or result?

United Nation was founded on 24 October 1945, just after the World War II, in replacement of League of Nations. Its head quarter is at New York, USA. The United Nations is an intergovernmental organization tasked to promote international co-operation and to create and maintain international order. The charter of UN was very well drafted and very comprehensive. Its charter was formulated on justice and equality. It was hard work of genius people.

But with the passage of time, it is losing its effectiveness and failed to maintain world order. Some nations became so strong that, they put aside the UN and act unilaterally. Some nations are so stubborn, that they violate UN charter openly and feel no guilt. Some countries are so feeling-less that the whole world condemned them but they keep criminal silence.

Should we stay calm and just became spectators and watch what so-ever will happen? Should we leave all the issues to our next generations to suffer? Should we close our eyes and do not acknowledge the issues? Can we escape? Can we be ignorant? Can be we so cruel to our kids and leave them to be humiliated?

I believe, it is time to think and raise our voice, and struggle for a better tomorrow, better tomorrow for everyone, better tomorrow for my kids, better tomorrow for your kids, better tomorrow for our next generation, better tomorrow for everyone. We should struggle to make our tomorrow better than our yesterday. Think positively, act smartly and be optimistic.

We demand, respect of the UN , we demand for implementation of UN charter, We demand for justice, We demand for equality, We demand for fair-practices, We demand respect for human kind, We demand for a stoppage of killing, we demand stoppage of violence, We demand for protection of weak, We demand for uniformity etc.

It is natural, when we live together, the differences may rise among us. It can be among individuals or nations. It is very much normal and was happening since ages. We quarrel with our kids, brothers and sisters, parents, spouse or friends, boss or subordinates or colleagues. It is understandable. But we live in a civilized world. There are mechanisms to resolve the differences. In our day to day life we are over-coming on many issues and resolve with each other. The same approach may be followed to resolve the differences or misunderstanding among nations. UN is the right platform, UN charter is the proper guidelines for resolving the issues. Diplomacy is the weapon of civilized world. We all must respect UN, and its charter and resolve all issue through peaceful manner and dialogue. No one should have the right to by-pass UN or impose its decisions unilaterally.

I suggest, the International Community may join hands and strengthen UN and implement its charter in true later and spirit. UN may investigate the history of almost 7 decades and point out all the violators and let them declare responsible for their wrong doings. Force them to rectify their mistakes, compensate their wrong doings. UN should strengthen to the extent that any country how strong it might be, should not dare to violate UN charter. Any sanctions without UN approval may be declared null and void. Any military action without UN approval may not be recognized and declared criminal acts. They must be punished for their heinous crimes and war like crimes.

Let us struggle to make this world a place of “Peace, Harmony, Justice, Equality and Prosper” place for our generations to come. We may sacrifice but our next generation may enjoy Peace, Harmony and Prosperity.

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