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Reserve judgment: Arbitrating energy disputes in Africa

Simon Sloane

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As African states seek to use national laws to protect their natural resources and increase revenue from their development, Fieldfisher dispute resolution partner, Simon Sloane, considers the difficulties facing energy companies seeking to protect their investments while respecting the transformational needs of host states.

Africa’s capacity to benefit equitably from its own natural resources continues to be one of the main challenges facing many of its most energy-abundant jurisdictions.

While blaming this state of affairs on the old “resource curse” myth is simplistic and unhelpful, it remains the case that nations rich in resources tend to be poorer and less developed than those which are not, with many of the benefits of their exploitation going offshore.

Despite the clear moral case for African countries to profit more from their energy and mineral reserves, legally the picture is more complicated.

Much of the cost and risk of extracting these resources tends to be shouldered by foreign investors, who expect to be compensated for their outlays and assume that the terms on which they invested will be protected by local and international laws.

Consequently, any new domestic legislation guaranteeing host countries a “fair” share of the revenues from internationally funded projects is often treated as breaching protections given to foreign investors in bilateral investment treaties (BITs).

There have been numerous incidents of foreign companies successfully bringing arbitrations against African states that have tried to amend investment terms retrospectively, with investors relying on safeguards such as fair and equitable treatment (FET) and non-expropriation rights provided in BITs.

This has led to growing scepticism among African governments of (particularly first and second generation) BITs, as these treaties are often perceived as looking after the interests of foreign investors, to the detriment of states’ needs to transform their economies.

Affirmative action

A handful of African countries, including South Africa and Tanzania, have recently cancelled a number of their BITs – a situation that has created tension between the desire to preserve domestic assets for the national benefit and the need to attract foreign investment to fuel economic growth.

Domestic legislation designed to promote equitable ownership include South Africa’s black economic empowerment initiatives, which compel 26% of shares in mining assets to be distributed to disadvantaged local people.

In Tanzania, new laws including the Natural Wealth and Resources Contracts (Review and Re-negotiation of Unconscionable Terms) Act, 2017 and the Natural Wealth and Resources (Permanent Sovereignty) Act, give the government power to renegotiate contracts with investors on terms more favourable to the state.

Although international arbitration is generally a last resort for resources companies when disputes arise, lately there has been a noticeable increase in requests for arbitration in circumstances where African states have sought to implement alternative local laws.

BIT terms and Western-centric legal principles rarely align with traditional African customary laws and there is a growing unwillingness in many African states to accept foreign rulings over key national assets, which can make the enforcement of an international arbitration award against a state politically challenging.

Since relatively few African court decisions are published, it is hard to tell statistically where many countries are in terms of compliance with international arbitration awards, and how many are resisting enforcement.

There have been some very public rejections of international arbitrators’ decisions.

Zimbabwe, for example, has resisted recent efforts to enforce awards made against it in US courts.

Nigerian courts have also refused the local enforcement of a multi-billion dollar London Court of International Arbitration (LCIA)commercial arbitration award against a state-owned entity in favour of foreign investors, notwithstanding that the English courts have upheld the validity of the award (see P&ID Ltd v Federal State of Nigeria).

Yet even in cases where the authority of international arbitrators is accepted, the variety and nature of local laws can cause problems when it comes to implementing awards in African states.

Parallel proceedings

Growing distrust of the international arbitration system among African governments is a considerable problem for foreign investors, especially in the highly litigious energy sector, as there is currently no trusted alternative for resolving disputes.

Historically, arbitration has not been high on the agenda for most African states and relatively few African judges have significant experience of international arbitration.

Efforts are being made to redress this through legal education and there have been moves to establish regional arbitration centres throughout Africa that have the confidence of both states and investors, although these are yet to gain significant traction.

In the meantime, there continue to be serious problems in resolving energy project disputes caused by parallel proceedings, where one party will ignore an arbitration clause in a contract and ask for the matter to be addressed in a local court.

In these situations, partiesend up straddling one or more proceedings on the same issues, with different tribunals and courts regularly reaching different decisions and with the added hurdle of a party facing competing anti-suit or anti-arbitration injunctions.

Such circumstances are common where at least one partner is foreign and relies on an arbitration clause in a contract or its public international law rights under a BIT, while local parties are more naturally inclined to seek decisions from local judges.

Often, the impasse is caused by local judges who are suspicious of the international arbitration process and are not willing to abdicate their powers to a foreign tribunal .

Pre-empting problems

In many cases, the need for arbitration can be avoided by careful and far-sighted approaches to contract negotiation.

Simply including an arbitration clause in a contract will not automatically prevent the parties ending up in messy disputes being contested simultaneously in domestic and international courts.

Energy projects especially will usually involve a complicated series of contracts between international energy companies and one or more domestic counterparts, including government bodies, local investors and contractors.

If a domestic party decides to ignore an arbitration clause and asks a local court to intervene, the foreign party then has to choose whether to seek an injunction and refer the dispute to arbitration, or submit to the local court’s jurisdiction.

In these situations, the international partner is likely to have difficulty locally enforcing any award they obtain, if they proceed with the arbitration.

Alternatively, the international party can opt to engage in the local court process which can expose them to the vagaries of an unfamiliar legal system.

Where there is a suite of contracts containing different arbitration clauses, this leaves the parties open to arguments about which arbitration clause governs which dispute and the possibility of multiple proceedings.

Habitually, there is a lack of attention given by lawyers drafting contracts to what are sometimes mandatory laws to protect natural resources.

Rules obliging infrastructure developers to use local contractors on large projects are also frequently ignored.

This failure to respect local laws can lead to litigation in local courts, especially as communities become more empowered to challenge this practice, over issues which should have been addressed at the drafting stage.

While not wholly avoidable, the risk of becoming embroiled in paralysing disagreements can be minimised by careful drafting and fully thinking through how proceedings will work in particular African jurisdictions.

Intra-African arbitration centres

One of the solutions being implemented to improve the perception of international arbitration in African disputes is the establishment of local arbitration centres.

In 2016 alone, there were more than 70 international arbitration centres operating across Africa,, with varying degrees of credibility, and more have sprung up since.

The Cairo Regional Centre for International Commercial Arbitration, established in 1979, has been notably successful in attracting Arab and north-Saharan arbitrations.

In Nigeria, the Lagos Court of Arbitration is growing in stature, as are the Kigali International Arbitration Centre (KIAC) in Rwanda and the Ghana Arbitration Centre.

The Casablanca International Mediation and Arbitration Centre (CIMAC) in Morocco and the Mauritius International Arbitration Centre (MIAC), which was previously an offshoot of the LCIA, are also actively seeking to play active roles in resolving African disputes.

China’s approach to arbitrating in Africa is also worth paying attention to. The China-Africa Joint Arbitration Centre (CJAC) in Shanghai was specifically set up to deal with infrastructure project disputes, and China is now looking to set up centres with broader mandates in East and West Africa.

The goal of all of these African centres is to regionalise arbitration, so that cases involving precious national assets are dealt with in Africa by African lawyers and arbitrators, with the buy-in of African governments and international investors.

However, until local courts are equipped to play a supportive role in arbitration, it may be hard for these centres to command confidence, especially when there are so many centres competing to hear arbitrations.

Transparency within the local court system also needs to improve, as where there is little or no access to court judgments, the worst assumptions are going to prevail.

International investors need to feel they can trust the integrity of local courts before they can be comfortable with their handling of cases.

The Paris-headquartered International Court of Arbitration (ICA) is pushing to improve the transparency of enforcement, on the grounds that it is important for tribunals and courts to know what other courts are doing, and for the rest of the world to see that key treaties are not being overturned and set aside.

The Organization for the Harmonization of Business Law in Africa (OHADA) is similarly seeking to facilitate a pro-arbitration stance in West Africa.

It is worth noting that suggestions around using institutionally appointed arbitrators, who have the advantage of proven expertise in the area they are arbitrating on, have generally received a cool reception by courts, states and investors.

Stabilisation clauses

The use of stabilisation clauses in contracts as a means for foreign investors to mitigate or manage political risks associated with their project is coming under scrutiny in Africa.

The World Bank and other multi-lateral development organisations favour the deployment of clauses that allow an investor to sue a state if the terms on which they invested change, as a way of increasing investment in Africa and developing economies in general.

But it is becoming increasingly evident that such clauses bind African governments and prevent them from amending local labour and environmental laws or their fiscal regimes, even if such reforms are deemed necessary to transform their societies and enhance domestic economies.

Although many African countries recognise that including stabilisation clauses in a BIT is likely to lead to expensive disputes that state balance sheets can ill afford, the need to attract foreign investment means that most governments are still willing to take the risk.

This is an area that multi-lateral organisations need to review, as it is clear that the current situation does not adequately serve the transformational needs of many African states.

New model treaties

Simultaneously with the growth of local arbitration centres, a raft of regional investment and co-operation agreements have sprung up to foster intra-African state and private investment from home-grown and international sources.

The majority of these agreements contain carve-outs expressly to enable African states to address their transformational needs, including exemptions for disenfranchised communities and the need to protect natural resources, without the fear of incurring liability to foreign investors.

The African Continental Free Trade Agreement (AfCFTA), signed in Kigali in March 2018, is intended to provide a platform for intra-African investment between 27 African Union member states, both at state level and for private investors.

It is also hoped that the AfCFTA will go some way towards dealing with the perception that foreign investors have advantages over local partners under traditional BITs, and with some of the problems of enforcing courts’ decisions on disputes.

The New York Convention

One major benefit of international arbitration is the ease of enforcement in foreign jurisdictions which are signatories to the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“the New York Convention”).

In sub-Saharan Africa, a region which comprises 46 of Africa’s 54 countries, many but not all jurisdictions have ratified the New York Convention.

The challenge now will be to ensure that the convention is properly implemented and respected by all signatories.

African governments are also closely following developments in Europe around the Investment Court System as an alternative to international arbitration, for resolving investor disputes in EU member states.

Tackling corruption

Non-governmental organisation Transparency International singles out the global oil and gas industry as one of the business sectors at the greatest risk of corruption, with Africa being a particular hot spot.

While there has been ample evidence of corrupt practices in some jurisdictions, observers should be cautious generalising about Africa, as many African countries are highly ranked as places to do business cleanly and legally.

Corruption is one of the issues at the heart of many governments’ dissatisfaction with the international arbitration system, as it smacks of injustice that an investor may be involved in illegal activity, by coercion or by choice, yet still win significant arbitration awards.

There have been a few advances in BITs and model laws that indicate international law is starting to get to grips with the issue.

The Dutch Model BIT published earlier this year allows tribunals to take into account whether there has been corruption when making an award – a development that has been largely welcomed and is likely to be replicated in other BITs around the world.

The Nigeria-Morocco BIT (the Reciprocal Investment Promotion and Investment Agreement) signed in late 2016, which contains a comprehensive anti-corruption provision, is also seen as one of the most progressive new formats of BIT.

The future of African energy disputes

Anyone considering making investments in Africa needs to be aware that there are a number of regional treaties to be complied with in order to benefit from investment protections.

There continue to be unresolved questions around enforcement mechanisms and what protections are enforceable through arbitration, especially as countries pull out of BITs.

For users or would-be users of the arbitration system, there are some difficult choices to be made for those who find themselves in the midst of several parallel proceedings.

While disputants may be convinced that they are legally right that arbitration is the way to resolve an issue, parties need to be very certain that there is some kind of enforcement option available to justify the time and expense involved.

Otherwise, disputes can turn into difficult procedural battles between arbitrators and local court proceedings, leading to spiralling costs and project delays, ultimately forcing parties to abandon the case.

Simon Sloane is a dispute resolution partner at European law firm, Fieldfisher. He is a leading expert in international arbitration and ADR with over 25 years' experience of advising construction, energy and insurance clients. For more information on our international arbitration expertise, please visit the relevant pages of the Fieldfisher website. https://www.fieldfisher.com/

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International Law

China’s aggressive moves in South China Sea

Prof. Pankaj Jha

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At the time when the whole world is reeling under the Wuhan virus epidemic, China has upped the ante in South China Sea, knowing very well that the domestic compulsions in the US would be a constraining factor for the global hegemon to undertake any military action in SCS. These maneuvers by China’s People’s Liberation Navy (PLN) are decimating the concept of China’s peaceful/harmonious rise. With Philippines abrogating the Visiting Forces Agreement with the US, the Chinese party leaders feel that it is right time to define Chinese strategic spaces through the use of military power. In October 2019 after a series of incidents in the Vanguard Bank, which falls under EEZ of Vietnam and regular patrols in the non-disputed areas last year, the focus has now shifted to the Union Banks, a group of small islands and land features, closer to central SCS region so that China can control the waterways. Earlier this month Chinese military aircraft conducted anti-submarine drills in those contested waters. This was in response to the USS Mc Campbell sail through the contested region. Further, China conducted joint exercises in mid –March despite knowing very well the risk of annoying other claimant countries. China has also activated its fishermen militia which have outnumbered all countries fishing boats in the SCS to outmaneuver them. These fishermen militia have been closely followed by Chinese coastguard ships as a brute show of power.     

In early March 2020, USS Theodore Roosevelt along with an advanced destroyer made the visit to Danang to mark 25 years of diplomatic relations. China perceived it as a growing closeness between the US and Vietnam as this was the second ever visit by any US carrier strike group to Vietnam. Earlier this week (March 24)the USS Barry (DDG 52), the US navy guided-missile destroyer during a live fire exercise fired a missile in the SCS showcasing its offensive capabilities. A day before that (March 23) Lockheed EP-3E reconnaissance aircraft of US Navy conducted surveillance sorties flying between Taiwan and the Philippines (Bashi Channel). This was in response to the infringement of Taiwan’s air space by Chinese military planes earlier in February.  The US counter moves and live firing exercises has annoyed China to such an extent that it has been firing lasers on US surveillance aircrafts while at the same time conducting air sorties in East China Sea through Chinese Shaanxi Y-8 maritime aircrafts. This growing intensity of Chinese naval actions have compelled Japan and Vietnam to further develop their defence and strategic relations.

Due to the critical pandemic situation in Southeast Asia an emergency ASEAN session is being ruled out and there might be a few teleconferencing or web-conferencing dialogues which might take place to address the situation under Vietnam’s chairmanship. However, it might not get the attention of international media. It seems that Chinese moves are to intimidate Vietnam into not issuing a strict statement against China and also abide by the Chinese diktats during the ASEAN summit which in all likelihood might get delayed. However, Vietnam has made plans for a strong communique against the Chinese aggressive tactics in SCS and given the prerogative of the ASEAN Chair Vietnam might even name China as the aggressor and the major challenge to peace in the contested region. Chinese presence in Union banks, which is northeast of Johnson Reef have angered the Vietnamese, because more than three decades ago (1988) China had killed several Vietnamese soldiers to claim the Johnson Reef. Five People’s Armed Forces Maritime Militia (PAFMM) ships have been tracked closer to the waters and have been stationed there for quite some time. 

China is planning for some kind of military action and it is apparent through the mobilization of fishermen militia, coastguards and navy as well as maritime aircrafts. Coercion tactics against smaller claimants would help China to negotiate bilaterally leaving countries like Vietnam to come for negotiations. However, Vietnam has been clear on its position that all negotiations must be done at the multilateral level. The tactics that China is employing to claim the waters around SCS as its territory and proclaim complete fulfillment of its nine-dash dream. China has been giving economic inducements to Laos and Cambodia through its BRI projects and also building ports and infrastructure like airstrips and military base to be used by its military force at times of crisis.  China has also deployed a dozen unmanned submersibles in the Indian Ocean to monitor activities of India, Japan and the US ships and submarines.

It appears that China wants Vietnam to budge to its coercive measures and must not issue a statement condemning its actions in SCS, but strategic thinkers and scholars believe that the ASEAN might get united before the ASEAN summit and issue a strongly worded statement against activities in the SCS. Of course, the chair of the ASEAN this timeis Vietnam which would make sure that the ASEAN communique lists Chinese activities as a big time threat. It is hoped that this year ASEAN Chairman’s statement would be similar to that of 2019 or may even use stronger adjectives.

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The Idea of Global Governance

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“Global governance” has increasingly become common sense within the political-economic sphere in the context of preaching for accountability and transparency. There is,however, a grey space that claims questions of what the end goal of such coherence is called for and who it seeks to serve. This paper shall descriptively delve into the need for Global Governance in today’s world while enumerating its corresponding challenges and criticisms.      

“International solidarity is not an act of charity, it is an act of unity between allies fighting on different terrains towards the same objective. The foremost of these objectives is to aid the development of humanity to the highest level possible.” – Samora Machel

The international arena in the 21st century requires a catalyst to unify the world beyond borders and to build global institutions that can combat disparagement of the idea of globalisation. The resolution to this conundrum is the dilation and legitimisation of global governance. Global Governance is essentially a framework that proposes global relationship and a knit playing field integrating all spheres of a society including social, economic, political, cultural, and environmental sectors to revolve issues with a collective consciousness[1] as liberalists would preach.

This is however unachievable without all actors in the system including, states, political figures and leaders, quasi state actors, corporate sector and institutions, NGO’s, MNC’s and the financial system collaborate to form a coherent structure that can vastly influence the grassroots of the system. This is parallel to the idea of mega diplomacy proposed by Parag Khana, a profound specialist in international relations. As Parag Khana stated, “We’re moving into a post Westphalian world, a world which is populated where the authoritative actors are not just governments. They are companies”.[2] He explains how diplomacy has widened as a tool into diverse spheres such as private mercenary armies, AI and technology, humanitarian agencies and non-governmental organizations, the educational sector; schools and universities, religious institutions and organisations and much more. He believes that diplomacy stretches beyond multilateral institutions such as the United Nations and the World bank or bilateral relations between nation states themselves. This is more efficient as it uplifts the accountability held by state and non-state actors. It propagates a sense of global order and global citizenship in an interdependent world as an aftermath of proactively embracing globalisation.

While there is no universally accepted definition of ‘Governance’, The Commission of Global governance defines the same as ‘the sum of the many ways individuals and institutions, public and private, manage their common affairs’. It has posited that governance is ‘a continuing process through which conflicting and diverse interests may be accommodated and cooperative action may be taken’.[3] The concept of Global Governance is viewed narrowly as a movement to address today’s issues while it is fundamentally much more. As Whitman (2009:8)[4] stated, it is an instrument to help independent states reach out for help in the face of emerging international issues and come together to create the envisaged world of peace and harmony. This stems out of the inefficiency and the failure of global institutions. For instance, humanitarian relief having been sent to Rwanda in 1994 during the genocide by the UN enforcing the Tusi military could have deterred the massacre at its grassroots.

Globalisation backlash may be seen as a growing hindrance to the expansion of Global Governance as states are reluctant ant towards embracing the rapid interdependence often leading to circumstances and conflicts that arise out of intervention. Kofi Annan, Secretary General of the United Nations rightfully stated while addressing the assembly that “the Central challenge we face today is to ensure that globalization becomes a positive force for all the world’s people, instead of leaving billions of them in squalor”.[5] While an ambitious concept, it may serve to be counterproductive in nature. The shift towards abandoning globalisation in neither desirable nor pragmatic. Revoking the systemic change, it has brought about for more than a decade now would bring along multifaceted problems hand in hand. It goes unrecognised, that the issue isn’t globalisation, but how we work around it and how it is managed. As rightly pointed out by Stiglitz, the macroscopic problem lies in the hands of the global financial institutions such as the World Trade Organisation (WTO), World Bank and The International Monetary Fund (IMF). They go beyond their mandates to ideally sere the best interest of the developed nations as opposed to the developing unindustrialised nations.

Need for Global Governance

Transnational policy challenges influencing nation states on an individual level see the need for cooperative global approaches within the contemporary world. This would require re-building of the mechanisms of global governance and its constant expansion to address global issues that are on the rise. Globalisation, being the epicentre of the framework, is array of opportunities alongside challenges. While the debate on pollution persists, issues such as terrorism, drugs abuse, arms proliferation, climate change, and data security have crossed national borders in search of global solutions. These while picked up within the domestic affairs of individual states within their political agendas, require integrated policy change in the international arena to be dealt with in an effective and constructive manner.

While viewed as transnational, the effects of global governance have a direct influence within the domestic there of each individual state. As Halabi (2004:23)[6] stated, that the framework of global governance is best suited to manipulate globalisation’s forces, control its detrimental negative effects and recognises that globalization cannot lead to global governance like cooperation correspondingly may not be facilitated by the anarchy that prevails in the international system. In the anarchic system, the challenge stands as states seek authority, power and control. While this collective consciousness is imperative for change, the thirst for power breaks down the cooperation and leads to violations in search for a state of hegemony. While offensive realists would argue that this is natural, this state of neutrality is least beneficial for the scale of change that meets the eye. A multilateral approach is therefore the only possible explanation which not only levels the playing field for all but also doesn’t compromising on valuing the voices of each of its stake holders from time to time.

While the framework sounds equitable, it is impossible to isolate domestic values in a multilateral setting. Deliberation and debate may still lead to decision making that isn’t convincingly adhered to by all states. Hence, policy development needs to be holistic in nature.

Challenges

One of the main challenges to Global Governance is state sovereignty. Stemming from the widely accepted grassroots of the Westphalian system that today UN carries forward in its mandate stated, “the concept of nation-state sovereignty based on two principles: territoriality and the exclusion of external actors from domestic authority structures ”.[7] Global Governance can be maximised in the state of absence of state governments and a collective sense of shared sovereignty to create a cohesive international community.

The ability for nations to contribute to change may diversely vary corresponding to their standing and their state capabilities. As Halabi (2004:24)[8]recognises, while global governance seeks to resolve disputes and issues, it does not restrict states in continuing to pursue wealth within the created structure of their own. Hence, we need a global interface that can pool in these independent capabilities and empower international actors to foster change.

Domination and subordination of states hinders the process of global governance. As pointed out by Mehta (2007:4)[9], the idea of ‘international’ is often perceived as the G8 or the G20. The G8[10], while primarily focusing on economic issues are seen to represent and speak for the entire international community as they guide the forces of response to global issues and challenges. From an economic lens, the G8 as one might multilateral institution concentrates the power to manipulate the procedures of world economics. This prevailing hierarchy in the system therefore deters the comprehensive bridge between the rich and poor states, further breaking down the cooperation.

Limits of Global Governance

Some of the fundamental limits to the idea go Global Governance includes the force’s ability to comply with international rules, to maintain transparency, to be able to create win-win resolutions that are mutually beneficial in interstate disputes, and its ability to empower international organisations to deliver required international aid in terms of services and public goods for all nations to thrive in an equitable system. All nations have an intrinsic need to join these international organisations and institutions to prove their international legitimacy within the global community.

These challenges have been witnessed prominently in many spheres of transnational issues. The United States’ non-cooperation in the environmental protect through the implementation of the targets to reduce CO2 emissions that would help curbing global warming in accordance to the Kyoto protocol[11] is an apt example of the same. The target of global poverty reduction has prompted international economic institutions such as the International Monetary Fund and the World Bank to strengthen their policies through the launch of CDF (Comprehensive Development Framework) and PRSP’s (Poverty Reduction Strategy Papers). Yet, the need for radical reformation persists. A report by the IFIAC, also known as the Maltzer Commission[12] deduces the inefficiency of the World Bank by pointing out the inconsistency in its assistance provided to the social programs for the rural as its administrative work overlaps significantly with the domestic and regional developmental banks hence leading to low performance of the institution as a unit. The commission called for a privatisation of the World Bank’s lending operations leading to its conversion into a World Development Agency.

The field of human rights has been widely debated due to the lack of coherence and inconsistencies in policies that are adapted to the domestic affairs of each state. Human rights for the moral compass for global governance as violation proliferate across the globe. The asymmetry of information enables institutions and states to exercise policies that impede several rights that individuals are fundamentally entitles to. The use of policing, coercion and torture violate rights including their rights to food, health care, housing and many more. The conundrum of capital punishment and its violation to the fundamental right to life has been debated for decades. The implementation and an ability to uphold and maintain this moral compass of human rights is a test of the potential of Global Governance.

The breakdown of trade agreements highlights the over reliance and dependance of developing nations on the export of commodities that carry the brunt of collapsing prices. Such disputes and inequities within investment and trade may also be seen among large and advanced nations that seek to uphold leverage against one another such as the persisting trade conflict between USA and China. The shift in focus is therefore now on the diversification of exports that may be facilitated if Global Governance can effectively manage the forces of globalisation and streamline it through new international agreements supporting the price of commodities.

Last but not the least, the uprise of civil society conflicts and revolutions are grossly mismanaged. The recent measures taken by the United Nation of disputes such as the ongoing Syrian Civil War and unrest have led to questioning the legitimacy of the proposals passed through the Security Council and the body itself. While funding for the institution is always constituted as a fundamental issue, no constructive measure to rectify the same has been collectively formed by the member states of the international organisation.

Conclusion

While Global Governance seeks to benefit all, it is over ambitious and idealistic. There are several reforms that are imperative to its efficient implementation. Firstly, it is important to modify how states perceive state sovereignty and dismiss the threat that global governance poses to it. It is crucial to sustain he representation of state governments to retain the democratisation of global institutions. With that said, the international community has a heavy reliance on national governments as opposed to weakening them. Weak states carrying a contrasting perception are not only a threat to themselves but also to the framework of Global governance. Weak legitimacy in nations that may categorised as rogue states, fake democracies or quasi authoritarian states have a high degree of threat on their efficiency and potential. This is however enhanced in states that exercise more liberty and freedom, where the civil society representation is high.

Secondly, global governance requires an accountable and moral structure. These two elements must be universally recognised as backbones of the framework that are essential and uncontested. Subsequently, regional governance and domestic affairs must be trusted and respected to maintain development and management of state infrastructure and the preservation of natural resources. Emerging regional powers must refrain from dominating the playing field and facilitate trade and regional agreements to foster global governance by mobilising people, boosting imports and exports, and effectively managing resources.

Correspondingly, the needs to be an urgent democratisation of international economic institutions such as the UN, World Bank, WTO and IMF to filter and check the viability of proposals and measures taken. There needs to be a reiterated call for conformity of these revolutionary and policy making bodies with the cause of strengthening global governance, enabling them to efficiently respond to current and emerging global challenges. There needs to be an expansion of the Security Council that restricts the veto power in the hand of a few elitist nations and a reformation of the mandate of the UN enabling it to target short term goals making it more effective.

Lastly, the legal structure require reform. The international judiciary and legal system need to be strengthened adhering to the globalised relationships between states that supersede domestic dynamics of legal frameworks within states. International courts such as the ICJ and the ICC must take cognizance of the changing world that the seek to serve.

The global community must in tandem minis the unilateral rule and isolate the quest for hegemony to create a system of cooperation and enable the upliftment of subordinated sections of societies such as women, children, indigenous people, underprivileged, refugees and many more. The structure should encompass all state and non-state actors to help developing nations in the society meet the Millennium Developmental Goals to ensure peace, harmony, uphold human rights, reduce the detrimental effect of global warning on climate change, combat terrorism, curb migration and nuclear proliferation alongside fostering growth in the international, regional and individual state level. Global Governance is there a vital instrument that seeks to intertwine global interests and look beyond domestic foreign policies to form a global knit community that envisages a world of peace and harmony. Yet the question prevails, is global governance an answer to the echoing anarchy or a mere euphemism of a global government?


[1](n.d.). Retrieved from http://csmt.uchicago.edu/glossary2004/collectiveconsciousness.htm.

[2]Bigthinkeditor. (2018, October 5). Parag Khanna on the Rise of Mega Diplomacy. Retrieved from https://bigthink.com/big-think-edge/parag-khanna-on-the-rise-of-mega-diplomacy.

[3]Hägel, P. (2011). Global Governance. Oxford Bibliographies Online Datasets. doi: 10.1093/obo/9780199743292-0015

[4]Whitman, J. (2009). Conclusion: The global Governance Prospect. Palgrave Advances in Global Governance, 189–203.

[5]Speeches. (2019, February 13). Retrieved from https://www.kofiannanfoundation.org/topics/speeches/.

[6]Halabi, Y. (2004). The Expansion of Global Governance into the Third World: Altruism, Realism, or Constructivism? International Studies Review, 6(1), 21–48.

[7]Timberman, T., & Timberman, T. (n.d.). The Peace of Westphalia and its 4 Principles for Interstate Relations Isn’t Failing. Retrieved from https://smallwarsjournal.com/jrnl/art/the-peace-of-westphalia-and-its-4-principles-for-interstate-relations-isnt-failing.

[8]Halabi, Y. (2004). The Expansion of Global Governance into the Third World: Altruism, Realism, or Constructivism? International Studies Review, 6(1), 21–48.

[9]Mehta, M. D. (2007). Good Governance. Encyclopedia of Governance.

[10]Canada, France, Germany, Italy, Japan, Russia (suspended), the United Kingdom and the United States.

[11]What is the Kyoto Protocol? (n.d.). Retrieved from https://unfccc.int/kyoto_protocol.

[12]International Financial Institution Advisory Commission. (2016, December 23). Retrieved from https://en.wikipedia.org/wiki/International_Financial_Institution_Advisory_Commission.

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International Law

Human Rights in the Context of the Changing Global Order

Ankit Shubham

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on

Thomas Hobbes argued that nature of conflict is embedded in the natural condition of mankind. On account of constant fear procured from this nature for the weaker sections of society, philosophers argued for creation of moral and legal obligations for protecting the interests of human beings. This followed the formulation of human rights in its modern sense. Though human rights are synonymous with every human civilization throughout the history, the nature of these rights were mostly in pursuance of the natural condition of conflict where it was directed in favour of one group over another. The current form of liberal world order based human rights regime was formed after the World War II and is the most influencing regime ever formed in the human history. There have been no other human rights system as widely accepted as the one we are living in. It is based on the principles of mutual respect, human dignity, equality and democratic values. In the bipolar world of the cold war era, human rights became part of an ideological struggle. The codification and monitoring of these rights benefitted from the power struggle between Soviet Union and the United States of America [US]. The human rights regime was at its peak after the fall of Berlin Wall. In the following unipolar era dominated by the US hegemony, the regime at times did suffer from backlashes but nothing was that serious to threaten the base of this regime at all. Now when the current world order itself is in retreat, the future of this human rights regime is under skepticism.

American hegemony is on a decline, particularly due to their own policies aided with the rise of regional players. The American-dominant world order is set to be replaced by a multi polar order, where numerous emerging states will have a share in the global power. These emerging states are mostly authoritarian or illiberal democracies having a poor record on human rights subject. The changing course of global power would adversely impact the current human rights regime. The change is inevitable but the degree of such change could be controlled since the international order is very deeply rooted in the current world order. It is where the role of emerging democracies and traditionalist powers become important to control the course of such change.

The changing global order

Stagnancy coupled with global order is a false concept often intermixed in the international relations. The end of every global order is inevitable and they expire in a prolonged deterioration rather than taking a sudden collapse. Ever since liberalism became the centre of the global order in the 1940s, it has been under constant threat from the actions of dominating state as well as non-state actors. This liberal order that was created in the aftermath of the Second World War produced immense benefits for the people across the planet. The years following this period brought unprecedented growths like prosperity and raise in standards of human rights. In particular, the human rights regime received a boost with the different newly formed human rights order centered on upholding the values of humanism. This order was centered on the principle of mutual respect of sovereignty and it survived the cold war and American hegemony and the challenges thereafter.

But the liberal world order is now deteriorating and the US is fast losing its superpower status that it gained post Soviet collapse. Experts argue that this breakdown of US power started with the invasion of Iraq in 2003 and the present administration policies which seem disinterested in leading the global order is the end point of US hegemony.[1] With this end, there are multiple aspects of world order that is possible and foreseeable. Some argue that the world order will remain unipolar with the classical power swift happening from one great power to another, others argue that the world order will return to pre-1992 bipolar phase while the most convincing argument being the multi polar world order where the global power could be concentrated in small pockets of numerous countries. With the rising economy and military powers, the regional powers will have a share in the concentrated global power in the upcoming order.

With the shift in the world order, the international institutions supporting the order will find it difficult to adapt to the new conditions. The older order was primarily supported by liberal democracies, now there is a constant shift of powers from these democracies to authoritarian and illiberal democratic countries. The liberal world order saw the rise of free countries by at least 36 percent which is now at a constant rate of decline.[2] The new world order is thus set to be dominated by countries with poor human rights record. With these set of countries dominating the world order in the coming times, the liberal order based human rights regime will suffer severe repercussions.

The human rights order of the current era

Global human rights came into play only after a long period of power shifts and brutal wars rather than peaceful international relations. Post World War II, the liberal order gave prominence to the United Nations which was seen as a standing global forum which would set uniform guidelines for attaining mutual trust and orchestrate domestic as well as external policies of a state. In the third General Assembly of the United Nations held in 1948, the Universal Deceleration of Human Rights [UDHR] was adopted which could be attributed as the principle document of the current human rights regime.[3] Article 28 of the UDHR emphasises on entitlement to a social and international order which upholds human dignity and liberty.[4] In the following years, numerous national and international human rights organisations were set up which ultimately established an international order based on the principles of Article 28.

The human rights order has been shaped by the actions of state as well as non-state actors. Under the state actors include the nature of states, the domestic laws and the geopolitical interests the state serve to the particular cause. For the non-state actors, there are two broad heads of human rights organisations, the intergovernmental organisations [IGOs] or the international non-governmental organisations [INGOs]. The IGOs are formed by treaties amongst several states. Upon ratification of the same, the states become legally bound by the objectives set out in the treaty. The INGOs on the other hand carry out support services along with pressurizing the states for attaining rights. In the past, INGOs like Amnesty International or Red Cross have been successful in influencing political processes including areas of high politics affecting national sovereignty and the actions of other key players. The human rights order thus created has established deep roots in the current world order.    

Challenges to human rights order in the multi polar world

Western countries played an extraordinarily large role as funders and conveners of human rights organisations, directly or indirectly shaping the mode of working of these organisations.[5] Several states have argued that the organisations have been shaped in such a way to best suit the dominance of the western countries. For instance, there have been criticisms of Responsibility to Protect doctrine which have been time and again usurped by the West to wage wars in other countries. The double standard invasions to bring peace to a region have not gone well with the advocates of human rights. Countries are losing confidence in the established institutions like never before. Many countries have either left or have showed their intentions to leave the International Criminal Court over alleged political bias. Other human rights institutions are also not free from these threats. The principles of democracy as enshrined under UDHR are not feasible in a world ruled by far right or authoritarian states. If the world powers are shifted from the west to the regional players then it is certain that these organisations in their current form would suffer a backlash. While traditional powers are unwilling to reform the institutions, the emerging states are becoming more assertive in the global politics in the same place. The formation of New Development Bank by BRICS countries show that if the emerging states are not better accommodated in the existing institutions, such as World Bank or UNSC, they will undermine those institutions by creating alternative ones.

The rise of populism

The issue of human rights disorder cannot be limited to non-western countries. In recent years, the rise of populism has resulted in deteriorating human rights accord in the western countries as well. Populism is a growing ideology and an anti-establishment movement which share suspicion and hostility towards the established institutions. Studies have indicated that populist governments have eroded individual rights and inflicted serious damage on democratic institutions.[6] In Europe for example, the increasing immigration from the Middle East and the need for preservation of cultural identity per se started the populist tide and now, the far right groups emerging from populism are expressing discontent with the established human rights laws. Several states are even passing protectionist laws aimed at curbing basic rights of refugees as enshrined in the Refugee Convention or the UDHR principles. The rise of populism has not only affected Europe but it has gone past the Atlantic to the US. The protectionist policies coupled with growing human rights abuse of the migrants shows the changing nature of administration to deal with human rights issues.[7] Though the abuse on several counts like Guatanamo Bay have been there in the US but the current administration is very vocal in carrying out these abuses and making it sound like a norm. The multi polar world order will continue to have considerable say of these western countries and they are ought to act as saviours of the established institutions but with the rise of far right groups here they are most likely pursue the protectionist policies and evade their responsibilities to act.

Populism have gone past all possible barriers to distant countries like Philippines, Japan, Indonesia, Brazil and other emerging powers. This is leading to swift transfer of liberal democracy to illiberal ones. For instance the Philippine government has initiated its war on drugs policy where thousands of extra judicial killings have taken place.[8] Brazil has also shown increasing numbers of extrajudicial killings.[9] Indonesia is also witnessing the rising tides of populism where the far right opposition is witnessing strongholds in different pockets of the country.[10] Unlike the west where populism is constrained by strongly established democratic institutions, in Asian countries these institutions are generally weak and populism could prove more dangerous to democracy. These countries are the important regional players who will have significant say in the new world order, the rising populist tide in these countries is thus worrisome for the established human rights order.

The rise of authoritarian states in the world order

The authoritarian states will have a dominant share in the rising multi polar world order. Countries like Turkey, China, North Korea, Russia etc and regional groups like African Union, Arab League and the like will have a considerable say in the world order. The human rights record of these countries range from poor to very poor. Of these countries, China is likely to have the most important share of the global power but its autocratic government sees human rights as existential threat to the state. The Chinese government has long pushed the current human rights order as an infringement of its sovereignty. Its recent episode with detaining of thousands of Muslims from Xinjiang region clearly shows the poor human rights accord it would provide for in its capacity.[11] The current human rights order will always have some kind of infringement on the national sovereignty thus one should not expect support of the authoritarian states in this regard. Further, there are certain provisions in the UDHR which are clearly in contraventions with the foundations of these states. For instance, Article 29 calls out for establishment of democratic societies which is not a feasible alternative under an authoritarian rule.[12]

The rise of these authoritarian states challenges the liberal order built around human rights, democracy and international justice. These states were always skeptical of human rights organisations and will abstain from progressive interpretations of human rights obligations.[13] The attitude of these states is going to make the current human rights regime ineffective per se given the dominance of these states in the current world order. Though one could argue that the current international order has very deep roots in the society and is not easily threatened by these changes, these authoritarian states even during the current regime have successfully crumbled upon the human rights in their own domestic spaces. With the shift in world order in their favour, they could extend their domestic policies to the international sphere and change the course of human rights in the world.

The decline of human rights order

Political scientist Samuel Huntington cited democracy and the subsequent human rights from it as the inevitable consequence of the assertion of US dominance. He said

Democracy is promoted, but not if it brings Islamic fundamentalists to power; non-proliferation is preached for Iran and Iraq, but not for Israel; free trade is the elixir of economic growth, but not for agriculture; human rights are an issue for China, but not with Saudi Arabia; aggression against oil-owning Kuwaitis is massively repulsed, but not against non-oil-owning Bosnians. Double standards in practice are the unavoidable price of universal standards of democracy.”[14]

Though human rights have provided immense benefits for people across the globe, the proponents of these rights have used these for ulterior motives. The controller of the world order will always look for creation of institutions in the way that best suits their goals of dominance. The authoritarian dominated order would curb the liberties by counting the shortcomings of democracy. Statements like the following by the former Malaysian Prime Minister Mahathir Mohammad could be used for supporting the restrictions on human rights

 “Authoritarian stability has enabled prosperity whereas democracy has brought chaos and increased misery. Should we enforce democracy on people who may not be able to handle it and destroy themselves?”[15]

The advocates for autocracy will undermine the human rights system for shaping up their rule and establishing long term powers in the process. The emerging authoritarian states have from time and again created deadlocks in the existing human rights system for resolving humanitarian conflicts. The deadlock created in the UNSC over Syrian Civil War by Russia and China is the most recent one. Estimated suggest that over half a million people died in this conflict but still a no-vote was given for intervention in Syria.[16] This was partly due to the misuse of humanitarian intervention in Libya by NATO troops earlier where the said intervention failed miserably. The reasons also ranged to Russian alliance to Syrian government which it sought to protect while the western countries launched an offensive against the government at the same time. This is a perfect example of inefficiency the human right order could turn into.   

The current international order has survived decades of violent wars and instability. But the stability was partly due to the fact that the US and its allies were able to maintain their hegemony. With this hegemony set to be broken, an unstable human rights order is just a matter of time. Owing to the protectionist policies, the upcoming major world powers would denounce these set of rights and will look forward to replace these with a new set of rules. The nature of these rules is easily foreseeable from the domestic policies that these countries have been serving in the past. It makes the next generation of human rights regime look bleak and cites our future to be on the verge of being in dystopia.

Conclusion

George Orwell in his famous novel 1984 quoted that “power is in tearing human minds to pieces and putting them together again in new shape of your own choosing.” This quote is very relevant to the current scenario of the changing world order where the emerging powers will restrict the shape of human rights regime suitable for their own purposes. The new Orwellian world therefore would push us back decades and nullify the attempts that were done for creating this most effective human rights regime in the course of history. The human rights regime is under threat, particularly due to the actions of the parent countries of the regime and also due to the rise of emerging countries elsewhere. The traditionalist countries are showing little to no interest in upholding the values they created for protection of human rights. It is where the role of emerging states becomes crucial. The current human rights regime need to gain the active support of at least some of the emerging states, if they are to maintain significance in the coming decades of this century. Emerging democratic states like India and others could prove to be crucial in mediating between the diverging interests of the traditional powers and illiberal emerging states elsewhere. If the human rights order is to somehow survive in the changing world order, it would depend on how these emerging states are able to bridge the gaps that exist between traditionalist and conservative powers.


[1] Fareed Zakaria, The Self-Destruction of America Power, Foreign Affairs, Volume 98 Number 4, July/August 2019 at p 10

[2] Democracy in Retreat, Freedom in the World 2019, Freedom House, https://freedomhouse.org/report/freedom-world/freedom-world-2019/democracy-in-retreat

[3] Universal Declaration of Human Rights, History of the Document, United Nations, https://www.un.org/en/sections/universal-declaration/history-document/index.html

[4] Universal Declaration of Human Rights, art. 28

[5] Seth D. Kaplan, Human Rights in Thick and Thin Societies: Universality without Uniformity, (Cambridge: Cambridge University Press 2018)

[6] Yascha Mounk & Jordan Kyle, What Populists do to Democracies, The Atlantic, (Dec 26, 2018), https://www.theatlantic.com/ideas/archive/2018/12/hard-data-populism-bolsonaro-trump/578878/

[7] Lauren Sukin, The United States treats migrants worse than Prisoner of Wars, Foreign Policy, (July 26, 2019), 10:45 AM), https://foreignpolicy.com/2019/07/26/the-united-states-treats-migrants-worse-than-prisoners-of-war/

[8] Philippines ‘War on Drugs’, Human Rights Watch, https://www.hrw.org/tag/philippines-war-drugs

[9] Brazil: Events of 2018, Human Rights Watch, https://www.hrw.org/world-report/2019/country-chapters/brazil

[10] Umar Juoro, The Rise of Populist Islam in Indonesia, Turkish Policy Quarterly, (Nov. 29, 2019), http://turkishpolicy.com/article/987/the-rise-of-populist-islam-in-indonesia

[11] Roland Hughes, China Uighurs: All you need to know on Muslim ‘crackdown’, BBC, (Nov 8, 2018), https://www.bbc.com/news/world-asia-china-45474279

[12] Universal Declaration of Human Rights, art 29.

[13] Thijs van Lindert, The International Human Rights Regime in a Multi Polar World, Humanity in Action Nederland, (Oct. 2016), https://www.humanityinaction.org/knowledge_detail/the-international-human-rights-regime-in-a-multipolar-world/

[14] Samuel P. Huntington, The Clash of Civilizations and the Remaking of World Order, 184 (New York: Simon & Schuster, 1996).

[15] Speech to the Europe-East Asia Economic Forum, Hong Kong, 14 Oct. 1992. 

[16] 560,000 Killed in Syria’s War according to Updated Death Toll, Haaretz, (Dec. 10, 2018, 4:26 PM), https://www.haaretz.com/middle-east-news/syria/560-000-killed-in-syria-s-war-according-to-updated-death-toll-1.6700244

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