On 21st February 2019, International Court of Justice finished it hearing the arguments of India and Pakistan on Jadhav Case and cases is reserved for deliberation. In 2017 India had instituted proceedings against Pakistan claiming for consular access to Mr.Jadhav (alleged to be Indian Spy by Pakistan) who is convicted for espionage. The case arises out of an Application filed by India under Article 40, paragraph 1, of the Statute of the Court and Article 38 of the Rules read along with Article 1 of the Optional Protocol concerning the Compulsory Settlement of Disputes (Optional Protocol) done at Vienna on 24 April 1963.Pakistan has however in its reply statement argued that State of Pakistan was willing to permit consular access upon an undertaking from the State of India that it will co-operate with Pakistan in a mutual investigation about the crimes allegedly perpetrated by Jadhav in the territory of Pakistan and his possession of Indian Passport with wrong credentials. State of Pakistan states its view is legally correct as per paragraph (vi) of the Indo-Pak 2008 Bilateral Agreement on Consular Access.
The interpretation of 2008 Bilateral Agreement is thus important in order to resolve the issue. However, while the State of India considers the 2008 Agreement to be irrelevant and Pakistan relies on a flawed interpretation of the same in order assert the correctness of their action. Getting the interpretation of 2008 Bilateral Agreement right could have saved States from arguing on the uncharted areas of espionage, and the status of military tribunals, indirectly compromising the interests of national security on various notes.
Indian counsels began the arguments by identifying two broad issues arising in the case. The first one relates to the violation of Article 36 of Vienna Convention of Consular Relations (VCCR)1963 and the second is a little extended argument about the relief to be awarded in the said case upon an affirmative decision of the violation of Article 36. Indian Counsels stressed on the importance on the special relief of release pleaded by India, unlike Avena or La Grand Case, where ICJ had ordered reconsideration. They had been confident enough throughout the hearing that the first issue is established on a very simple prima facie observation. However there appears to be a missing point in the Indian take on the case. It fails to address the India-Pakistan2008 Bilateral Agreement on Consular Access interpretatively. It simply relies on a theory that the 2008 Agreement doesn’t modify the obligations of the State of Pakistan under the Vienna Convention of Consular Relations. Perhaps, the State of Pakistan was successfully managing to fix the context of the dispute to an alleged espionage case and led the arguments away from the text of treaties.
There are several ambiguities in the explanation given on 2008 Bilateral Agreement. Not using the full title of the 2008 agreement even once, State of India argued that “(2008 Agreement) is… irrelevant to the assertion of rights to consular access under Article 36 of the Vienna Convention (Para 107 of Verbatim Record 2019/1)”. It is highly unsustainable claim State of India can make, after signing an international agreement titled “Agreement on Consular Access” intending to provide “reciprocal” consular facilities. Such a claim is not consistent with good faith by which States enter into treaty relationships. You may argue Human Rights, but the implementation of the same requires inevitably a system of governance build upon the principle of trust.
By applying Article 41 of VCLTand Article 73 of VCCR India contends that the provisions of 2008 Agreement have no applicability in the instance case. It also relies on the Human Right’s dimension of the Article 36 of VCCR (pages 35-47 of Verbatim Record 2019/1) to establish an erga omnes nature of consular access as a due process of law. It deals casually with the words “supplementary and amplification the provisions thereof” in the text of Article 73. This in my view is a serious lacuna. The word “supplementary” can mean something which is “completing and supporting” the provisions as well. If it solely meant to be augmenting the provisions then there is no need for separate enunciation of the words “confirming”, “supplementing”, “extending” or “amplifying” in the article.
First of all, Article 73 of VCCR is speaking about the provisions of VCCR as such, and not directly addressing the rights contained therein. It means that the absolute notion of the rights mentioned in VCCR is imaginary and highly expansive of the textual meaning of Article 73.Article 36 of VCCR also is primarily not a human rights provision, although the dimensions of Human rights are easily attributable to it. It deals with procedural aspect of “exercising consular functions” and intents “to facilitate” a smooth exercise of the same. Viewed from such a context the 2008 Agreement is meaningful and relevant. It is decidedly descriptive of the procedure to be adopted by governments of India and Pakistan in cases involving Article 36 of the VCCR.
The Article 36 of the VCCR, paragraph 1 clause (a) speaks about the freedom of consular agents to communicate with nationals of sending state and vice-versa, clause (b) deals with actions to be taken up by the receiving state, without delay, if the nationals under custody request to meet their consuls, and clause (c) right of the consular officer to meet nationals and arrange for legal assistance. But clause (c) also requires consuls to refrain from such actions if the nationals expressly requests so. Paragraph 2 further mandates that the rights referred in paragraph 1 shall be exercised according to the laws and regulations of the receiving state with only subjection that “the purposes” for which the rights are provided must be fulfilled.
The2008 Bilateral Agreement paragraphs (i-iv) are improving upon these provisions of Article 36. They are not irrelevant as such. The paragraph (ii) makes it obligatory that receiving state immediately inform the sending state the arrest of its nationals, whether the national requests so or not. This is an amplification of right mentioned in paragraph (b) of the Article 36 of VCCR. Paragraph (iv) improves upon the position of paragraph (b) of Article 36 by qualifying the words “without delay” in Article 36(b) with “a maximum limit of 3 months” within which the consular access “must be provided”. Paragraph (iii) once again improves upon the provisions of the VCCR by making it obligatory again for the receiving state to inform expeditiously about the sentencing of the nationals of sending state. State of India at ICJ could have ideally relied upon these provisions in order to further establish instances of violations of its rights by the State of Pakistan. Although the State of Pakistan has almost violated almost each one of these provisions in the instant case, India’s claim solely relies upon the Vienna Convention (Application Instituting Proceedings, Para 46).The motivations behind State of India in avoiding such a straight legal strategy and choosing the language of Human Rights is something interesting to be investigated. Probably it’s because of the intention to seek remedies beyond “review” or “reconsideration” of case back in the courts of Pakistan.
On the other hand, State of Pakistan claims the paragraph (vi) of 2008 Bilateral Agreement enables them to make the provision for consular access conditional, which is both jurisprudential and interpretatively unsustainable. Jurisprudentially, such an argument abridges the guarantee of the right of consular access, a ‘due process principle ‘codified under Article 36 of VCCR. Interpretatively, paragraph (vi) not cannot be argued successfully as a provision dealing with consular access. Although the paragraph (vi) states thus “in case of arrest, detention or sentence made on political or security grounds, each side may examine the case on its merits”, it is not clear as to whether this could mean limiting the right to consular access.
Both the paragraphs (v) and (vii), i.e. to say antecedent and subsequent to para (vi), deals with the repatriation of the individuals arrested, detained or convicted inside the territory of receiving state upon the fulfilment of certain conditions by the sending state. Just because the Agreement is titled after Consular Access, it is highly imaginative to load paragraph (vi) with explanation on consular access when both the paragraphs (v) and (vii) are dealing predominantly with repatriation after detention or conviction. Right to Consular Access is a right coming into the effect at the very first moment of the arrest or sometimes even when a decision to make an arrest is made by the receiving state.
However arguing on the false premise presented by State of Pakistan, India Counsels had to the extent the breadth of its own arguments, finally ending up with claims like interests of national security cannot be self-certified by nations concerned. This is in direct contravention to Indian position in various human rights forum that it cannot allow for politicised international organisations or international tribunals to decide upon the issues of national security. Further these arguments, if addressed seriously by the International Court, are going to change the composure of the jurisprudence of international law. Although such an evolution of jurisprudence is desirable from the angle of human rights, it has the danger of exposing diplomatically the weaker State’s sovereignty to a politicized International arena. This could have been possibly be avoided by solely relying upon positive legal materials such as Vienna Convention 1963 and 2008 Bilateral Agreement. The outcome of judgement could be no different, but would also have saved the principle of State sovereignty. The lack of international law expertise of developing nations was quite visible throughout the hearing.
Democracy at Risk: The Global Challenge of Rising Populism and Nationalism
Authors: Meherab Hossain and Md. Obaidullah*
Populism and nationalism represent two discrete political ideologies; however, they may pose potential threats to democracy. Populism is a political ideology and approach characterized by the emphasis on the interests and concerns of ordinary people against established elites or perceived sources of power and privilege. Populist leaders often portray themselves as champions of the “common people” and claim to represent their grievances and desires. It is a political stance that emphasizes the idea of “the people” and often contrasts this group against “the elite”.
Nationalism, on the other hand, is an ideology based on the premise that the individual’s loyalty and devotion to the nation-state surpass other individual or group interests. It represents a political principal positing that there should be congruence between the political entity and the nation-state. While populism emphasizes the idea of “the people,” nationalism emphasizes the idea of the nation-state.
In what ways can populism pose a threat to democracy?
While some argue that populism is not a threat to democracy per se, others contend that it poses a serious risk to democratic institutions. Populism can become a threat to democracy by undermining formal institutions and functions, discrediting the media, and targeting specific social groups, such as immigrants or minorities. This threat arises from its potential to confer a moral legitimacy upon the state that it might otherwise lack. Consequently, it can jeopardize the defense mechanisms established to safeguard against tyranny, including freedoms, checks and balances, the rule of law, tolerance, autonomous social institutions, individual and group rights, as well as pluralism. Populism imposes an assumption of uniformity onto the diverse fabric of reality, distorting not only factual representations but also elevating the attributes of certain social groups above those of others.
In Turkey, President Recep Tayyip Erdogan’s populist rhetoric and policies have led to the erosion of democratic institutions, including the judiciary and the media. Populism in Turkey can be traced back to the era of Mustafa Kemal Atatürk’s regime, during which Atatürk’s elites, who had limited commonality with the broader society, assumed the responsibility of educating and guiding the masses. This phenomenon, often referred to as ‘regime elitism,’ has rendered Turkey susceptible to populism, which fundamentally revolves around the conflict between the elites and the general populace.
In Hungary, Prime Minister Viktor Orban’s populist government has been accused of undermining the rule of law, limiting press freedom, and targeting civil society groups. He has established a repressive and progressively authoritarian state that operates under the guise of democracy.
In media discourse, he has been designated as a populist leader. Empirical analysis reveals that Hungary is currently governed by a form of political populism, characterized as conservative right-wing populism. The salient features of Hungarian political dynamics encompass the government’s claim of challenging established elites, a lack of a clearly defined political agenda, the utilization of propaganda as a prominent tool in its political communications, advocacy for the preservation of a Christian Hungary, intervention in areas traditionally considered independent from state interference such as education and jurisdiction, the implementation of mass clientelism to reward its supporters while exerting pressure on critics, and overt criticism of non-governmental organizations (NGOs). Consequently, this trajectory underscores the ascendance of authoritarianism within Hungary.
How Nationalism can be threat to Democracy?
Nationalism can pose a potential threat to both democracy and international relations when it manifests in forms of discrimination, violence, and the exclusion of specific groups. The ascension of nationalism may jeopardize the established efficacy of multilateralism, which has historically been instrumental in preserving lives and averting conflicts. This can result in unilateral actions by certain nations, thereby undermining the collaborative approach to the peaceful resolution of disputes.
Nationalism can serve as a catalyst for conflict and division, fostering tendencies toward exclusivity and competition that impede the resolution of common global challenges. The ascent of economic nationalism has the potential to undermine global collaboration and policy alignment, resulting in a resurgence of nationalist economic strategies in many regions worldwide. Such strategies often prioritize individual national objectives over the collective global interest. Unrestrained nationalism can pose a threat to stability by inflaming ethnic tensions, thereby increasing the likelihood of violence and conflict.
In Europe, nationalism has historically been a significant catalyst for conflict and division, spanning from the emergence of Nazi Germany in the 1930s to more recent upsurges of nationalist movements in various countries. Nationalism tends to foster exclusivity and competition, thereby complicating efforts to address common global challenges. Under nationalist ideology, exemplified by Hitler, instances of extreme cruelty and inhumanity have been documented.
Another instance of nationalism, which presents a significant challenge to democracy, is the ascendance of Hindu extremism and nationalism in India, resulting in communal tensions. Since the Hindu nationalist BJP came into power, there has been a heightened sense of insecurity among Muslims in India, with the situation reaching unprecedented levels of concern. The government has actively employed media, television, and the film industry to propagate Islamophobia among the Hindu majority. In 2018, the Indian High Court rendered a judgment advocating for India to be declared a Hindu state, citing the country’s historical religious divisions. Nonetheless, it is crucial to emphasize that, in accordance with its constitution, India is mandated to maintain a secular state. Needless to say, the rise of Hindu nationalism under Prime Minister Narendra Modi has been accused of fueling sectarian tensions and undermining the country’s secular democracy.
Indeed, while populism and nationalism are distinct concepts, their simultaneous global rise poses a considerable threat to democracy. These ideologies frequently favor specific groups over the broader population and can corrode democratic principles. They tend to exacerbate polarization and undermine vital democratic institutions. Hence, many countries are grappling with substantial challenges to their democratic systems, which puts their stability and effectiveness at risk.
*Md. Obaidullah holds both a BSS and an MSS degree in Public Administration from the University of Barishal. He is currently employed as a Research Assistant at the Centre for Advanced Social Research in Dhaka, Bangladesh. His writing expertise spans various subjects, including Public Policy, Politics, Governance, Climate Change, and Diplomacy, on which he frequently contributes
Principles of International Relations as Homo Sapiens
After listening to Hariri’s Home Sapiens, I grasped, with a new perspective, the state of our humanity. I deeply realized that indeed we are the last human species. Our closest relative and competitor, the Neanderthals, were long gone. So how do we, as homo sapiens (“wise men”), wisely ensure the well-being and future of our species? The question seems too general or even irrelevant to many considering that everyday life on Earth continues despite the horrors of war, the devastation of calamities, and the forebodings of apocalypticism. But let’s not toy around with the destructive propensity and capability of our species which could have played a significant role in the demise of the Neanderthals and could also threaten our very own existence.
Life on Earth now is multifaceted and more complex than when we were still cohabiting our planet with other human species. The ancient “us and them” have become the modern and ironically complicated “among us,” and consequentially “us versus us.” We have become the only remaining human species—but the only remaining species that wants to destroy itself for self-interest.
Reflecting on the implications of our being the only human species left on Earth, I deduce the following principles for our international relations.
As one human species living on one planet:
The principle of cohabitation
We all have the rights to peacefully and productively cohabit on planet Earth without the sequestration of others due to superficialdiversity such as geographical locations, skin color, social ideology, and culture; or because of national or corporate resource exploitation.
The principle of mutual survival
We cannot survive without the human ecosystem. Human life is a multidimensional ecosystem. It cannot survive and thrive with only one feature or characteristic in one locality. It necessitates global diversity and mutuality. For our species to survive, our relations need to be based on mutual universal survival.
The principle of co-thriving
We cannot thrive secluded from the universal life system. Regression and destruction of one geographical locus, one ethnicity, or one natural feature impacts the whole bio-societal system. Inversely, the flourishing of one locus, one ethnicity, or one natural feature in conjunction with others, furnishes the whole human system to thrive.
The principle of developmental competition
We have both the latent propensity for destructive bouts and a penchant for developmental competition. International relations based on destructive bouts eventually inflect global crises. Global relations based on developmental competition advance our civilization. Each progress in a varied sphere, though will not be the same, complements the whole progression.
The principle of common home protection
We only have one home, one present habitat for our species to live and thrive, and one human family. Allowing these to decay will not only result in our degeneration but also the eventual risk of our survival.
As homo sapiens, we are at the top of the food chain and intolerant. We want to devour everything we can see and irrationally have the delusion of grandeur of being the only predator left. But the prey and the predator are one and the same. It’s not so naïve to outline what can be tagged as an idealistic theoretical construct. But let’s also accept the fact that the most influencing factors in our international relations are either commercially exploitive or ideologically invasive. And these are not sustainable and globally beneficial—for they are calculated goodness intended for the temporal benefits of the very few. The principle of the common good will enable us to see more beyond our present state and ensure the well-being and future of our species.
UN 2.0: Reimagining our global organization for a world in flux
Working towards better results on the ground and focused on the future, the UN family is undergoing a reset that will give rise to more agile, tech-savvy and impactful UN organizations.This transformation in skills and culture, encapsulated in the Secretary-General’s vision of a UN 2.0, is focused on fostering cutting-edge capabilities in data, digital, innovation, foresight and behavioural science – to deliver stronger results, better Member State support, and faster progress towards the Sustainable Development Goals.
During a roundtable with Member States, a group of UN leaders and experts explained the potential and strategies of UN 2.0. They highlighted early success stories, that, when replicated, will boost on-the-ground impact of a stronger, more flexible and modern UN.
This event came before the launch of the Secretary-General’s policy brief on the issue of a UN 2.0 revamp.
At the core of UN 2.0 is the so-named ‘Quintet of Change’, a powerful combination of data, innovation, digital solutions, foresight, and behavioural science solutions.
Opening the discussion, Melissa Fleming, the Under-Secretary-General for Global Communications, emphasized the need for change, highlighting that the progress towards the 2030 Agenda for Sustainable Development – adopted by all UN Member States in 2015 as a blueprint for peace and prosperity – is currently not on track.
Responding to the growing demand for reform, UN 2.0 represents a shift in how UN system organizations operate, aiming to accelerate progress towards the Sustainable Development Goals (SDGs).
Guy Ryder, the Under-Secretary-General for Policy, who brings extensive experience from his decade-long tenure leading the International Labour Organization (ILO), explained that the purpose of UN 2.0 is to equip UN organizations with the contemporary expertise required to be an effective partner for Member States in the twenty-first century.
A transformed UN leaves no one behind
Catherine Pollard, the Under-Secretary-General for Management Strategy, Policy, and Compliance, explained that the primary beneficiaries of UN 2.0 are the people the UN serves in its 193 member countries. “But equally important, UN 2.0 is about UN organizations themselves, because they will develop new skills, new talent, new purpose to better deliver our mandate.”
The UN continues to be a relevant player in the multilateral arena. To maintain this relevance, Ms. Pollard said, the Organization will develop employees’ skills, offer more training, attract new talents, and improve human resources policies.
Like many things in the modern world, UN 2.0 will be driven by digital solutions and cutting-edge technologies. Robert Opp, Chief Digital Officer of UNDP, the UN agency promoting international development, advocated for the potential that new technologies offer and contemplated on what the future can bring.
“AI is the current challenge, but there will be quantum computing and other breakthroughs around the corner, what we haven’t even anticipated,” he said, adding that when the ‘Quintet of Change’ is successfully implemented across the UN system, the Organization’s agility in responding to new challenges and in helping Member States will increase dramatically.
Data, digital innovation, foresight and behavioural science play key roles
The UN is actively supporting Member States in their pursuit of new solutions. A network of innovation labs has been established in more than 90 countries, serving as platforms for sharing new expertise in technology, data and other areas.
One notable success story comes from Indonesia, explained Faizal Thamrin, Data Scientist at UN Global Pulse Asia-Pacific. He illustrated how his team collaborated with the Government and thousands of small and medium enterprises to prepare for the future. Additionally, the team’s data analytics skills, combined with Indonesia’s experience, helped replicate early warning systems for natural disasters across the region.
UN 2.0 extends beyond data and digital solutions. Behavioural science, a multidisciplinary field that integrates insights from psychology, economics, communications, data science, sociology, and more, plays a crucial role in the ‘Quintet of Change’.
Claire Hobden, an ILO expert on domestic work, provided an example from Argentina’s informal sector. With support from UN colleagues, the Government was able to significantly expand social security coverage to domestic workers, such as nannies and caregivers, who are often hard to reach.
“Through a very small intervention we hope to be able to give more people access to social security, realizing their rights and access to decent work,” said Ms. Hobden noting the huge potential of replicating these methods, as there are 75 million such workers around the globe.
‘With new tools, we can do better’
In conversation with senior diplomats, Mr. Ryder emphasized that UN 2.0 is about potential of doing our job better “if we take a fresh look at some of the things we’ve been doing for a long time.”
Commenting on the journey ahead for UN colleagues, Mr. Ryder said “What you’ve done has been great. Now we have new tools. Let’s pick up those new tools, use them and maybe we can improve on what we’ve done before. It’s not saying what happened in the past was bad. It’s saying what we do in the future can be better”.
The event was co-organized by the Permanent Missions of Norway and the Republic of Indonesia to the United Nations in partnership with the Executive Office of the Secretary-General.
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