In the aftermath of US President Donald Trump’s recent carte blanche to Turkey to destroy with impunity fragile Kurdish populations in Syria, the “civilized” world stands at the beginning of yet another unforgivable genocide. How is this possible in the allegedly law-based system of contemporary international relations? Quite literally, there can be no more important question. Accordingly, the timely essay which follows attempts a tentative and partial answer, but one presented, as plainly necessary, at an optimally conceptual level. In such extraordinarily complex matters, theory is a “net.” Only those who cast, can catch.
In the third book of his philosophical romance, The New Gods, the French writer E.M. Cioran, exclaims: “With the exception of some aberrant cases, man does not incline to the good; what god would impel him to do so?” Whether or not the good is a great, unreal force, one that exists only as a ghost of the possible, one thing is certain. From the beginning, from that primal moment when the swerve toward evil first occurred, humankind has been the author of unspeakable crimes.
Most glaringly, these myriad crimes include genocide, war crimes and crimes against humanity.
This is not even a contestable allegation. Consider, in recent years, Syria, Afghanistan, South Sudan and the Congo. Recall, in the 1970s, Cambodia, and somewhat later, Rwanda, Somalia and the former Yugoslavia. Glance, today, at Turkey’s annihilationist war against the Kurds in Syria, a genocidal war given the de facto blessings of Russia’s Vladimir Putin and the open encouragement of US President Donald Trump.
There is more. War and genocide are not mutually exclusive. Sometimes, as history makes perfectly clear, war is simply the “best” means by which a particular genocide or closely-related crimes against humanity can be carried out.
Now, deeper philosophical questions need also be raised. How, we must finally inquire, has an entire species, miscarried from the start, managed to so egregiously scandalize its own creation? Are we all (or “merely” almost all) potential murderers of those who would normally live safely beside us? What about slavery, which continues, among other places, in Mali and Mauritania? Reference, too, the diamond mines of Sierra Leone and Liberia, and human child trafficking, especially in Nigeria and Benin but also in both North and South America. All these crimes are still far-reaching and “robust.”
All are still actively flourishing in our “advanced” 21st century
In such grim matters, death is pretty much the universal solvent. For as long as we can meaningfully recollect world history (a recollection currently out of favor in the US White House and at Goebbels-style Trump “rallies”), the corpse has been in conspicuous fashion. Today, in too many places, whole nations of corpses are being created.
As for the too long-inchoate “international community,” it stands by just as it always has, indifferently, for the most part coupled with a gratuitously self-righteous indignation; sheepish, yet arrogant, calculating and still lamenting its own alleged impotence.
All at once.
Why? The distressing answer must have several different levels, and also display several intersecting layers of pertinent meaning. At one level, and certainly the one most familiar to political scientists and legal scholars, the most basic problem lies in the changing embrace of Realpolitik or power politics. Following genuinely prophetic insights of the nineteenth-century German philosopher Friedrich Nietzsche (the “state is the coldest of all cold monsters,” he warns in Zarathustra), the effective deification of the State has reduced millions of individuals to very tiny specks of residual insignificance. In such an upside-down world, one wherein the “self -determination” of peoplesis championed but where individual human beings are expressly minimized, executions are too often welcomed, heralded as welcome expressions of something sacred.
To prevent genocide and genocide-like crimes, States must be shorn of their presumed sacredness. Before this can happen, however, individuals must first discover alternative and attractive sources of belonging. In the final analysis, the core cause of genocide, war crimes, and crimes against humanity is not the glorification of any particular State, or even the corresponding cowardliness of other powerful States, but the continuing incapacity of individual human beings to draw any true and satisfying meaningsfrom within themselves.
In essence, the most genuinely underlying problem here is the universal and sinister power of theNietzschean “herd” in human affairs; a power now applied by those who would create or control a state, but at any time applicable also by other herds.
At its heart, the problem of all such grievous international criminality is one of distraught and unfulfilled individuals. Ever fearful of drawing meaning from their own inwardness, human beings will draw closer and closer to the nurturing herd, like a moth to flame. Sometimes it is the Class. Sometimes the Tribe. Sometimes the Church. Sometimes the Race. Most commonly, it is the State.
Whatever the particular claims of the moment, the herd may spawn hatreds and excesses that make focused mass murder more or less welcome. Fostering a soundless but persistent refrain of “us” versus “them,” it can systematically prevent each affected person from becoming fully human – that is, governed by considerations of compassion and empathy – and can encourage each impacted person to cheerfully celebrate the wanton death of “outsiders.
Small matter, always, that the victim population, wherever it may exist, is constructed of flesh and blood itself. Since the murderous herd-based perpetrator has wittingly chosen to renounce self, he has already become impervious to reason, responding only to the irresistibly strong emotional advantages of “belonging,” and also, as sometime corollary, to the ecstatic promise of power over death.
Always, in human affairs, there is no greater power in world politics than the power of immortality.
Always, there can be no more compelling promise.
Indeed, against this incomparable power, even nuclear weapons are inherently impotent.
Each of us contains at least the possibility of becoming more fully human, a positive prospect that could reduce destructive loyalties to the herd and thus prevent genocide and related crimes. But it is only by actively nurturing this essential possibility that we can ever realistically hope even to endure.
The central task to creating freedom from genocide is to discover the true way back to ourselves; otherwise, we can only continue to fly with the exterminatory ideals of a delirious collectivism, with a herd-life of conformance and fear that must ultimately make defilements normal. Understood in terms of the contemporary prevention of genocide, war crimes, and crimes against humanity, this key task calls forth an immediate obligation to look beyond ordinary collective politics to the sanctity of individual persons. Philosophically, the vital center of any such desperately needed obligation can be found especially in philosophers Kierkegaard, Nietzsche, Freud, Hesse, Jaspers, and Jung. In the more specifically American genre, we should think admiringly of Emerson, Thoreau and the American Transcendentalists.
But let us be candid. In the virulently anti-intellectual Trump Era, no one thinks seriously about classical American thought – not even in the best universities, which remain collectively silent in the face of current US-president assisted crimes against humanity.
Living can be a process of continuous rebirth, but once under the captivity of predatory states or certain smaller groups, most humans will readily choose to die before they are fully born. Although we can evolve into compassionate persons only by first mustering carefully considered acts of defiance against the herd, this mass (a term preferred over “herd” by seminal Swiss psychologist Carl G. Jung) retards personhood by its consuming demands for obedience. Because these generally inflexible demands carry an arsenal of punishments and rewards that may seem impossible to defy, affected individuals are often ground into cogs, literally and metaphorically.
While few will even acknowledge such a disturbing fragmentation of life, a too-willing servitude to the herd may make mass killing or genocide acceptable.
Actually, it’s an old story.
Left unchallenged by those selectively few individuals who have already become empathic persons, many national leaders will remain what they have always been – that is, hyenas making verses among the tombs. Ever ready to prey upon the weak in the interests of some purportedly aggrieved populace, these ubiquitous predators can continue to carry out their nefarious crusades only because they are sustained by an inert and willing mass.
To prevent genocide and genocide-like crimes against humanity, the ultimate task must be to migrate from the violence-based Kingdom of the Herd to the individual-based Kingdom of the Self. In this utterly critical movement, however, the individual must also want to live in the second kingdom. This critical desire is the single most difficult part of the needed migration because the Kingdom of the Herd boasts its own utterly immense attractions.
risks of continuing to live within this murderous kingdom may become sufficiently
apparent only when it is already too-late; that is, when the residual possibilities
of a meaningful migration no longer exist.
 This convenient metaphor is drawn from the German poet, Novalis. Earlier, it had been embraced by philosopher of science Karl R. Popper, as epigraph to his The Logic of Scientific Discovery (1959).
The crisis of international law
The idea of promoting the human rights agenda in the image and likeness of the Western countries’ principles – as the repositories of Absolute Truth – is counterproductive and directly harmful in the Near and Middle East and Central Asia, as it does not consider the historical experience of these geopolitical regions. Moreover, many experts in the West talk about such topics, but do not really know the local culture or languages. Therefore, when they write about these countries, they rely on the classic languages of imperialism – English and French – with all that inevitably follows in geometric progression.
The decline of the bipolar system in international relations in the early 1990s was accompanied by great expectations of politicians and experts, who dreamt of the advent of a world based on the rule of law. A kind of Paradise on Earth, where everyone would suddenly be happy, and wars – but first and foremost hunger – would disappear. Their dreams, however, were not destined to become true, as wars have multiplied and hunger is claiming more victims than ever before, with the spectre of wars over water resources now looming large.
The specificities of international relations are determined by the three most important components: international law, geopolitics and ideology. The first international treaty systems appeared in the ancient world: in the aftermath of the Battle of Qadeš between the Egyptians and the Hittites at the end of May 1,274 BC. In 1,258 a fair treaty was concluded regarding the land to be ruled around the border that Ramesses II was unable to move farther north than Qadeš. But diplomacy, in the modern sense of the word, only began to take shape after the Thirty Years’ War of 1618-1648.
On May 15, 1648 the Protestant princes signed the first treaty of the Peace of Westphalia, in Osnabrück, which marked the end of the conflict between Sweden and the Habsburg Empire. The Catholic princes later signed two more treaties in Münster (on October 24 of the same year).
Westphalia – and, to an even greater extent, the Congress of Vienna (November 1, 1814 – June 9, 1815) that replaced it, was also based on three components: multipolarity, the balance of powers and the concert of powers, which mainly meant the importance of the great powers: Austria, Prussia, Russia and the United Kingdom. In many ways, the same principles were characteristic of the Yalta-Potsdam system, which determined relations between the two superpowers during the Cold War. The rules of international law were respected above all because there was a force behind them that could not be ignored. That is why peace reigned in Europe and the interests of the Union of Soviet Socialist Republics and the United States of America clashed mainly in the countries on the periphery – i.e. by shifting the Second Thirty Years’ War (1914-1945) to Third World countries and the Balkans, so that the West’s and East’s war industries would have their war theatres as outlets for their weapons. Little could the People’s Republic of China do by defining both the former and the latter social-imperialists as imperialists tout court, and branding them both as hegemonists.
In the 1990s the world changed. It became “US-centric”. After the collapse of the Soviet Union, the United States of America became the only superpower to take responsibility for the fate of humanity, i.e. its own “manifest destiny”. The concept of the “end of history”, developed by the famous American political scientist and Professor at Johns Hopkins University, Francis Fukuyama – although criticised by some experts in the United States of America – has not been seriously revised. In turn, the various wars in Asia, Yugoslavia and the difficult situation in Africa (the genocide in Rwanda in 1994, amidst the United Nations’ indifference and multiple local wars) raised the issue of the right to interfere in the countries’ internal affairs in order to protect human rights.
The situation in the former Soviet Union also changed. Local leaders seemed to be deciding to abandon their sovereignty completely and to integrate themselves as far as possible into Western political structures.
It is worth mentioning the conversation between the former President of the United States of America, Richard Nixon (the last great US President), and Boris Yeltsin’s former Foreign Minister, Andrey Vladimirovič Kozyrev, in June 1992. When asked by President Nixon how the Russian government decided his country’s national priorities, Kozyrev replied that its leaders were guided by universal values: “Probably you, as a friend of Russian democracy, will help formulate these interests?” asked Kozyrev. The former US President briefly replied that he would not commit himself to doing so, hoping that the Minister would formulate them himself. However, after President Nixon left the Foreign Ministry, he could not resist stating that it was unlikely that such a Head of Russian diplomacy could earn the respect of his compatriots.
The main idea of the United States of America, after the collapse of the bipolar system, was to take measures to prevent the emergence of any serious competitors in the international arena, especially in Eurasia. That effort, however, concealed a structural contradiction: the world is too complex and diverse to be controlled by a single centre. Humanity is currently faced with situations in which the system of international law is ever less functioning.
The powers in the world arena have been upset and, without international law respected by everyone, it is impossible to speak about the existence of a system of equilibrium, but only of world law, regarded as a construction solely in the interests of the hegemonic and hegemonist country, whose role is increasingly claimed by the United States of America. .
The reason for the crisis in which world diplomacy is now floundering is the US exorbitant ambitions, which have been expressed in the “liberal” interventionism of the Democratic Party and the neo-conservative ideology of the Republican Party.
The economic rise of the People’s Republic of China, as well as the creation of the foreign policy bases by the Russian Federation, which has recovered from the consequences of the “shock therapy” and the quasi-clearance sale operated by Yeltsin has gradually laid the conditions for the creation of the basis of a new multipolarity in the balance of power. The problem lies in the fact that it is extremely disadvantageous for the United States to recognise this new reality, because the US unique position after the end of the Cold War brought it considerable economic and political dividends. Moreover, the White House mastered new mechanisms to control its partners’ activities. For example, many of the strategically important technologies that many countries need are based on US patents.
Obviously, for the United States of America, the intensification of Russian foreign policy since the second half of the 2000s has in many ways been an unpleasant revelation. While the People’s Republic of China developed gradually, for the moment without criticising the United States on controversial issues, Russia’s position, starting with Vladimir Putin’s speech delivered in Munich in 2007, and especially after the handover of Crimea to the motherland in 2014, began to be perceived by the White House as a challenge aimed at restoring the influence lost in Eurasia and the world as a whole.
Was it possible to avoid the conflict, which led to clashes of interests between the USA-NATO and Russia on the territory of Georgia, Ukraine and Syria? Some experts think so. The well-known British political scientist, Richard Sakwa – a Professor at the University of Kent – noted that the main problem of the West is that for many years it did not find effective mechanisms to integrate countries like Russia and the People’s Republic of China into the orbit of its values. Developing this idea, we can see that the conditions for such an association should have been discussed on an equal footing and not imposed from outside.
Will there be a politician in today’s Europe who knows how to return to cooperation and compromise with Russia, reviving de Gaulle’s idea of a “Europe from the Atlantic to the Urals”? In Italy certainly not; probably in France and Germany. While, on the whole, the current EU politicians – except when attempting to ban saying “Merry Christmas”, for reasons of politically correct inclusiveness – are more interested in serving US interests.
Therefore, the reason for the alienation arisen between Russia, the People’s Republic of China and the West lies in the arrogance of the so-called developed countries, which actually deny the others the existence of national priorities, thus imposing – like good Gauleiter – the sphere of third parties’ interest.
The development of Russia’s relations with Eastern countries, and especially with the People’s Republic of China, is intended to make up for the losses Russia has suffered as a result of its confrontation with the West. According to some experts, however, China does not fully trust the current Russian political elite. The current complications in its relations with the United States and the European Union are sometimes seen here as nothing more than contrast and opposition, which can end as soon as Western politicians offer decent compensation. All this with the hope that then the Russian Federation will switch to a consistent anti-Chinese policy. Such fears are not unreasonable, but the anti-Russian lobby in the US Congress is unlikely to find strategists subtle enough to ensure such a split.
Currently much depends on the White House’s policy. It cannot be ruled out that the US President’s uncertain actions – see the literal flight from Afghanistan – are likely to help clarify the platform on which a different concept of foreign policy will emerge from the United States. A concept which is probably better suited to the changed reality, since the allies’ loss of power and trust was inevitably undermined in Afghanistan.
Every year it becomes increasingly clear that the modern world needs new value bases for its development. With all the well-known merits of liberal democracy, it shall leave the historical scene. But what concepts will replace it and help humanity out of the crisis? Will there be some model of meritocracy or transhumanism, which is now fashionable in certain circles? It is too early to answer this question definitively. The fact is that, a quarter of a century after the end of the Cold War, ideological enmity has re-emerged between Europe and Russia. A significant reason for its emergence lies in the US efforts to prevent the revival of the idea of “Europe from Lisbon to Vladivostok”. In view of laying the foundations for overcoming it, we need to recognise the right of the Russian Federation and the People’s Republic of China to pursue an independent foreign policy line and to step up contacts with Russia and China in the framework of the integration projects of multilateralism that had ensured stability until the implosion of the Soviet Union (December 25, 1991).
Submarine Cables: The Global Data Infrastructure and International Law of the Sea
As a lay person, it is a common perception that data and communication signals travel through multiple satellite systems orbiting around the earth. However, this is a grave misconception. As one writer puts it, “but that the communication signals themselves are then broken into bits of data, which then ply the ocean depths at the speed of light via unseen cables, is hard to imagine.” The reality is that 99% of the world’s communication data is currently moving through hidden undersea cables. These are now befittingly called as the “Out-of-Sight Arteries of Globalization”. These submarine cables are functioning as a global infrastructure for the movement of inter alia big data, communication signals, phone traffic and even financial capital around the world. During the past decade, the weaknesses and gaps in the protection of these underwater fiber-optic cables under International law has come to the fore. This article is aimed at critically analyzing the vulnerability in International law to protect these global underwater data highways.
History & Background
In the year 1858, the first transatlantic subsea cable was laid down between Ireland and Newfoundland which snapped 26 days later. In the year 1864, another transatlantic cable was placed between the same territories and this time it proved to be successful. Following this success, there was no looking back and submarine cables were placed between various territories along the seabed of the Pacific Ocean. Interestingly, the transmission speeds for these first telegraph cables were 12 words per minute which increased exponentially to 200 words per minute by the 1920’s. The invention of the telephone expanded the reliance on these transcontinental cables. From the beginning of the 1950’s until the late 1960’s underwater coaxial cables dominated intercontinental voice communications.
It was the invention of satellite systems during the 1970’s which greatly reduced the reliance on subsea cables for use in communication technologies. Although the satellite systems dominated the telecommunications world for more than a decade, they were soon replaced by the invention of fiber-optic cables. Fiber-optic cables were more capacious in carrying vast amounts of data and signals as compared to coaxial cables of the bygone days. The first fiber-optic cable was laid down in the year 1986. As of 2019, there are 241 active and distinct fiber-optic subsea cables which are mapping a length of 1.1 million kilometers (km) of the seabed. One writer points out the dominance of undersea cables over satellites by the fact that if they were to stop transmitting then “only 7% of the total United States data traffic volume could be carried by satellite”.
Global Significance & Issue of “Materiality”
Subsea cables are a crucial part of the digital economy, making flows and exchanges of data possible. Astonishingly, they are considered to be intangible, immaterial and un-territorial under the international legal framework. It is understandable that an average person using the internet is unaware about the physical aspect of data transmission. However, International law and its supremacy is founded upon physical objects and materiality. International law experts are now increasingly engaging in such a method of analysis as compared to archetypical theoretical frameworks. Hohmann and Joyce explain that “in revealing the deep entanglements of international law and the material things around us, we can begin to understand how international law structures and disciplines its subjects—and sets the contours for the possibilities and limits of our lives—through objects.”
It is absolutely imperative that International law recognizes the physicality of undersea cables which are now deeply intertwined with the social, economic, legal and technological orders of a digital age. International law and its dominance is moulded by the physical infrastructures which are an important factor in the growth of modern digital economies. Undersea cables are now the subject of competition and struggle between both state and non-state actors (e.g developers and corporations). These struggles include title, control, access and territorial sovereignty. All these fall within the ambit of International law, and efforts must be made to enable a fair regulation.
International Legal Framework and Challenges
The protection and security of subsea cables has been the subject matter of at least seven different international conventions between late 19th century and the beginning of 20th century. It all started with “The Convention for the Protection of Submarine Telegraph Cables (1884)” which was inked in Paris. The 1884 convention was applicable in the territorial waters of the signatory states, making the damage of such cables a punishable offense. The primary purpose of this treaty was to encourage the stakeholder States to promulgate domestic legislation protecting these cables.
The World moved on from the Telegraph to the Telephone, but these undersea cables remained of cardinal importance in communication technology. These cables were an agenda topic in the United Nations International Law Commission (ILC) on the law of the sea. In the International Law Conference of the Sea (1958), three articles relevant to the protection of subsea cables were incorporated into the Geneva Convention of the Law of the Sea (1958). It was also agreed that the provisions of the 1958 conventions will not affect any previous treaties (which included the 1884 convention).
In the year 1973, the UN held a third conference to debate upon the law of the seas and this subsequently resulted in the “United Nations Convention on the Law of the Sea, 1982 (UNCLOS)”. This time again, three provisions (Articles 113 to 115) specifically addressed the protection of undersea cables. Unfortunately, neither the 1982 UNCLOS nor its predecessor treaties could correctly envisage the importance of submarine cables to a digital age.
Pursuant to Art. 21 and 113 of the UNCLOS, littoral states have the authority to enact domestic legislation to protect the subsea cables or any other conduit that lay beneath their territorial waters. States are under no obligation to enact such legislation, and for this reason, most of the littoral states have abstained from doing so. Many studies and reviews have found that there exists little or no domestic legislation which criminalizes any damage caused to such cables.
In addition to this, there does not exist a legal regime which could potentially prosecute offenders who damage undersea cables which are located in the high seas. The UNCLOS limits the jurisdictional protection to flag-bearer vessels. This implies that littoral states could prosecute foreign vessels for damaging fiber-optic cables within its territorial waters, but not otherwise. As a result, there exist significant lacunae in the prosecutions of intentional or negligent damage of such important infrastructure. It is clear that the undersea cables are more prone to nefarious designs to disrupt communications by the foreign vessels of adversary states in the high seas. In terms of technological advancements, the data transmission network has moved forward by leaps and bounds. Legally, the International framework has failed to keep up.
In a modern digital world, these hidden subsea cables are a site of politics, power, communication and most importantly contestation. These cables may prima facie be an invisibility. But the real importance of an invisibility lies in the phenomenon it enshrouds. It is about time that International law recognizes that global digital economies are functioning and prospering through a hidden network of key infrastructure which needs better and impenetrable protection.
 Douglas R. Burnett & Lionel Carter, International Submarine Cables and Biodiversity of Areas Beyond National Jurisdiction: The Cloud Beneath the Sea, BRILL RESEARCH PERSPECTIVES IN THE LAW OF THE SEA, 3 (2017).
 Surabhi Ranganathan, The Out-of-Sight Arteries of Globalization, Visualizing Climate and Loss, http://histecon.fas.harvard.edu/climate-loss/lawofthesea/arteries.html
 Lionel Carter & Douglas R. Burnett, Subsea Telecommunications, in ROUTLEDGE HANDBOOK OF OCEAN RESOURCES AND MANAGEMENT, 349, 350 (Hance D. Smith, et al. eds., 2015)
 Stewart Ash, The Development of Submarine Cables, in SUBMARINE CABLES: THE HANDBOOK OF LAW AND POLICY
 Lionel Carter & Douglas R. Burnett, Subsea Telecommunications, in ROUTLEDGE HANDBOOK OF OCEAN RESOURCES AND MANAGEMENT, 349, 350 (Hance D. Smith, et al. eds., 2015)
 Working Group 8 Submarine Cable Routing & Landing, Final Report – Protection of Submarine Cables Through Spatial Separation, THE COMMUNICATIONS SECURITY, RELIABILITY & INTEROPERABILITY COUNCIL IV, 1
 Stephen C. Drew & Alan G. Hopper, Fishing and Submarine Cables: Working Together, International Cable Protection Committee (February 23, 2009) at 8, available at https://www.iscpc.org/publications/
 Territoriality and Intangibility: Transborder Data Flows and National Sovereignty, in Beyond National Sovereignty: International Communication in the 1990s 259 (Kaarle Noerdenstreng & Herbert I. Schiller eds., 1993)
 International Law’s Objects, 2 (Jessie Hohmann & Daniel Joyce eds., 2019).
 Jeremy Page, Kate O’Keeffe & Rob Taylor, America’s Undersea Battle With China for Control of the Global Internet Grid, Wall Street J. (Mar. 12, 2019)
 George Grafton Wilson, The Law of Territorial Waters, 23 AM. J. INT’L. L. 2, 241-380 (Apr 1929)
 Eric Wagner, Submarine cables and protections provided by the law of the sea, 19 MARINE POLICY 2, 127, 135 (Mar. 1995)
 Convention of the High Sea, Apr. 29 1958, 450 U.N.T.S. 11 (codifying this provision at Article 30, excerpted here: “The provisions of this Convention shall not affect conventions or other international agreements already in force, as between States Parties to them.”)
 Robert Beckman, Protecting Submarine Cables from Intentional Damage, in SUBMARINE CABLES: THE
HANDBOOK OF LAW AND POLICY
 UNCLOS (1982), Art. 27
Locating Sustainable Migration Framework in a Globalized World beyond the UNCSR
The traditional understanding of refugee protection and safeguards enshrined in the 1951 UN Convention relating to the Status of Refugees (UNCSR) with its 1967 Additional Protocol has come to a tipping point. The current scenarios of mixed human migration have given a new term that defines the “new refugee” as “migrant” due to the imprecise distinction between refugee and migrant in the wake of enlarging protections and expanded challenges to the refugee interpretation under UNCSR. Today, mixed human migration has become the determinant factor to critically appreciate the experiences, familiar routes, and intentions of refugees and migrants and threats to the protection system in the wake of emerging populist radicalism in the Global North and Global South with equal intensity. Such radical trends are generally backed by the majoritarian political discourse in constitutional democracies. But such revanchist patterns could only be contained by the re-mainstreaming of liberalism in our geopolitical identities.
New Categories in a Globalized World
Thus, the mixed human migration has necessitated the creation of new categories beyond the traditional understanding provided in UNCSR. Historically, the remarkable distinction between “refugee” and “migrant” is based on the institutional recognition of the notion that the refugee enjoys an elevated status in the framework of international law. However, the nation-states and inter-governmental mechanisms attend refugees based on the thresholds of gravity of refugee situations on a particular occasion. Consequently, such arrangements recognize the “refugees” and derecognize the “economic migrant.” However, in reality, it has now become a well-established understanding that such divisions between these categories are difficult to make in a globalized world. Alexander Betts has written about people who flee hostile circumstances and called such flight “survival migration,” especially from unstable nation-states, situations of socioeconomic violations, and climate change-driven displacement that have not yet been recognized as refugees under UNCSR. Unfortunately, there is no political understanding among the UN member states to broaden the limits of the UNCSR definition of a refugee by creating the new protection categories. Therefore, it is imperative in the present scenario to defend the existing “refugee” category, and nation-states strive to extend protection under international human rights treaties to other groups of vulnerable migrants fleeing persecution beyond UNCSR.
Global Compacts on Refugees & Migration
The origin of the Global Compact on Refugees (GCR) and Global Compact on Migration (GCM) is knotty as a global political project. Primarily, in late 2015, the strategy was to conclude and adopt a comprehensive plan of action for Syrian refugees and Mediterranean routes of refugees who have created a refugee crisis in Europe. Therefore, global institutional politics and other multiple reasons paved the way to adopt such a plan of action in January 2016 for organizing an international conference in New York in September 2016 with the mandate to have GCR. Simultaneously, other world institutions also hard-pressed for a similar arrangement called GCM to create equilibrium for proportionate protection. Such segregation was required due to the organizational distribution of business within the UN system. Therefore, the UNHCR (UN High Commissioner for Refugees) was mandated to act upon and implement GCR.
In contrast, Switzerland and Mexico have co-supervised the parallel GCM programme and its modalities for implementation. Though these Global Compacts have common characteristics, gaps, and intersections mainly, there is small space for internally displaced persons (IDPs) and transnational displacement that has not been recognized in the refugee definition. But UNHCR has proposed specific plans for implementing GCM that incorporate significant steps for migrants in vulnerable conditions. As a result, these Global Compacts have been playing relatively different roles as GCR attempts to address the gaps in the UNCSR by ensuring fundamental principles of humanity and international solidarity and strives to implement the principles of burden-and-responsibility-sharing (BARS) for refugee protection, assisting the refugees and supporting the refugee-hosting countries and communities. On the other hand, GCM provides a nascent global migration governance system as a first step. GCM is an intergovernmental agreement brokered by the UN that addresses all dimensions of global migration holistically and comprehensively and confronts the challenges relating to the worldwide movement by strengthening the contribution and engagement of migrants to sustainable development.
The Role of UNHCR & Shifting Global Debate
The position of UNHCR has become challenging as it confronts a multitude of constraints such as cuts in the humanitarian budget by the US, widespread non-compliance with the UNCSR and its Additional Protocol, and the emergence of institutional rivalry with the entry of IOM in the UN system. However, UNHCR has taken a restrained approach and deliberately excluded many parts from the current global debate on GCR, particularly Lego-institutional reforms. The GCR’s Comprehensive Refugee Response Framework (CRRF), Global Refugee Forum (GRF), and a string of Solitary Platforms provide the foundation for the philosophy of change and emplace global arrangement for international cooperation and addressing particular refugee crises. These institutional arrangements in the GCR framework, like CRRF and GRF, stipulate a new development-based and market-driven model of operation with a lot of pragmatism. GCR is an itinerary of actions and actors entrusted to implement the BARS and the entire ambit of modes of contribution on the part of stakeholders. The GCR is a remarkable achievement in its normative and substantive significance and commitments, provided it is executed on the ground. The CRRF has been showing positive results in Ethiopia and Kenya. However, it is the political leadership that has to determine new commitments and promises.
In the present scenario, international institutions require the exceptional and unprecedented capacity to lead collective action based on moral yet pragmatic parleys and diplomacies. World history is a testimony that non-binding intangible and universal commitments of the nation-states incommensurate with the international refugee regime do not serve a significant purpose. At least five to eight years must be demarcated to assess the impact of the Global Compacts on the ground. To do an impact assessment of GCR and GCM along with durable solutions, there are numerous refugee situations like Rohingya refugees in Bangladesh and India, Afghan refugees in Pakistan and Iran, Syrian refugees in Europe, Lebanon and Jordan, Mexican refugees in the US, Somali refugees, Venezuelan refugees in Colombia and Brazil, Afro-Asian refugees in Canada and Tibetan refugees in India. Though the GCM stipulates principles only, it has to evolve its intellectual contours in its initial stages to establish a global migration governance system, and its institutionalization will consume years ahead. However, the GCM is a remarkable achievement that has made migration a head-on agenda item for the UN system.
Global Refugee System: A Critique
Off late, UNHCR has not been innovative and inventive for an expansion of alternatives for refugee protection. It has adopted a guarded approach under which several issues have been put on hold. For long, UNHCR has been avoiding institutional reforms and keeping the refugee definition out of its re-consideration and re-formulation in tune with the current objections by the Global South countries. UNCSR refugee definition is the most significant contention of the Global South countries. It is a Eurocentric formulation and does not cater to the needs of the refugee people from the Global South nation-states. As a whole, the UNCSR regime is regarded as a Global North project imposed on Global South countries. Presently, many UNHCR personnel acquiesce in institutional politics, and the threat has been looming upon them that might jeopardize refugee protection. In such a pessimistic atmosphere, the GCR and CRRF provide a ray of hope for refugee protection. But there would be numerous geostrategic and geopolitical challenges such as the metamorphosis in the thresholds of global world order in terms of the recalibration and transformation of goal-posts of international power politics, the impact of socioeconomic praxis, the emergence of the artificial intelligence in RSD, and immigration procedures, and resurgence of far-right and nihilistic nationalism for minorities, and LGBTQI groups worldwide. Therefore, UNHCR has to continue to adapt to the changing circumstances, particularly by developing and re-crafting its capability for political leadership along with the existing humanitarian leadership in the context of global restrictionism.
Mixed Migration: A Divide between Principles and Pragmatics
The normative understanding of refugee protection and their human rights must not be sandwiched between principles and pragmatics of the regulatory approach. It is the cause of refugee protection that must alone prevail in global institutional priorities, intergovernmental primacies, and political urgencies in any given situation. But the divide between principles and pragmatics of refugee protection has been increasingly widening at an unprecedented scale that has made the UNCSR partially irrelevant, and several governments do not feel embarrassed with their public apathy towards refugees. Even though, immigration has squarely benefited and enriched the host countries of the Global North by building societies based on multiculturalism, pluralism, and cosmopolitanism. However, the political advocacy of right-wing nationalism in Australia, Canada, Europe, the US, South Asia, South-East Asia, and elsewhere conveys that the Global North has been incriminating immigration in the name of pragmatism by undermining the principles of migration.
The far-right nationalism breeds backlash and xenophobia. There is a need to repulse the anti-immigration surge. Global migration is, prima facie, not an immigration narrative alone; instead, it is, predominantly, impregnated with refugee dimensions that have to be dealt with under UNCSR and GCR instead of restrictive immigration laws. Because when immigration law stops, refugee law begins. Immigration law is based on nationalism, and refugee law is based on globalism. The global principles of the rule of law must comport with secular democracy, inclusive human rights, and liberal pluralism. These principles must get the support of the electorates in all geopolitical entities across the world. Such steps will guard these principles from far-right-wing politicians who are hell-bent on eroding universal liberal values. Therefore, the international community must reconcile the idea of liberal internationalism with the notion of secular democracy; otherwise, humanity would not be able to defeat the resurgent Frankenstein of international politics.
Global Public Perception & Sustainable Migration Framework
The global public perception suffers from the fear and impact of the increasing population of refugees and migrants, and Global North countries are reluctant to host them. There are 84 million displaced people worldwide, and out of them, 26.6 million are refugees (as of mid-2021). However, the challenge is greater geographical concentration as 85% of refugees live in low and middle-income countries, and 60% are present in just ten countries. Meanwhile, global migration trends have been mostly steady in terms of proportion to the global population since the 1970s, although the statistics of the people have increased from 70 million to 240 million. However, the refugee crisis has never been a crisis of statistical data; rather, it is the crisis of international politics and trust deficit among the comity of nations. The people of Global North countries are skeptical and fearful of socio-cultural transformation due to the triggering of structural changes with the arrival of refugees. Such changes cause the loss of low-skilled manufacturing jobs, starting of the politics of austerity, and politics-driven campaigns by the far-right-wing politicians in the host countries. In such a situation, the global community must develop a sustainable migration framework based on migrants-oriented policies that address both host and transit countries in equal measures.
One of the biggest challenges in the current world order is reconciling democracy with globalization in the wake of anti-migrant populism in Global North and Global South countries with equal far-right ferocity? It is, indeed, a significant challenge to preserve the optimism in the present world where electoral choices are expressed with technology, and sovereign citizens demand the re- endorsement and re-statement of national sovereignty in all its manifestations. Therefore, such integration of democracy and globalization needs a substantial amount of creativity that includes a new perception about normal human mobility and forced migration. Such optimism needs farsighted global governance supported by institutions and subsidiary organizations of the UNO, regional and other inter-governmental organizations. However, such a possibility right now is absent due to the international orders increasingly becoming more and more obstructive and deterring human mobility. There is a need to have collective measures to address the problem of the exodus of hybrid migration resulting in a backlash in the destination countries. It further jeopardizes the lives of people taking strenuous and frantic travels in search of safer refuge. Such reckless journeys become the cause of mushrooming of criminal syndicates indulging in human trafficking and criminalizing migration networks that mount a massive burden upon the capabilities of refugee-hosting countries while chipping away the thresholds of refugee safety.
On the basis of our cumulative experiences, there is a need to re-imagine the innovative and inventive refugee protection proscenium to respond to grisly human migration in all continents and countries. But it must not be devoid of the principles of Global Human Rights Constitutionalism, and it must discard the discourse of popular nationalism that is anarchist, narcissist, nihilist, and exclusionary in its treatment of RAMS (refugees, asylum-seekers, migrants, stateless). The current Globalized World needs the re-validation and re-assertion of diversity, dignity, multiculturalism and liberal values of the yore. It is an age requiring arrangements for integrating the contesting and opposing interests across the political spectrum in all geopolitical enties. Such measures demand audacious actions, quixotic visions and re-embracing of human rights liberalism beyond the rubrics of UNCSR.
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