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International Law

When Life Imitates Art

Arlene J. Schar

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Authors: Arlene J. Schar and Dr. David Leffler*

The movie Wag the Dog was released a generation ago, one month before a presidential scandal which invited comparisons between that film and the reality of that time. Now, 23 years later, we find ourselves in the midst of yet another presidential scandal; one which has made this movie once again relevant to our times.

The premise, which hits uncomfortably close to home, is about a war fabricated to deflect attention from a president’s indiscretions. War is described as “show business” with all the trappings: slogans, nicknames, theme songs, and even merchandizing to show solidarity; all orchestrated by a media intent on projecting a party’s “alternate reality” on an unsuspecting public.

However war, whether fabricated or not, is serious business and there are casualties. Iran has recently admitted to unintentionally shooting down a Ukrainian passenger jet, blaming human error and “US adventurism” for the crash. Human error can happen, and can be especially heightened during times of war. 176 lives were lost from this particular error; how much greater would have been the loss of life if this were on a nuclear scale.

The 2014 Danish documentaryThe Man Who Saved the World tells the story of Stanislav Petrov, a former lieutenant colonel of the Soviet Air Defence Forces and his role in preventing the 1983 Soviet nuclear false alarm incident from leading to nuclear holocaust. Thankfully in this case human error was successfully averted. 

Human error is something that will always be present; and so we have to ask ourselves: is it worth it, to life and to our planet, to entrust such terrible war-making forces to fallible humans? The obvious answer is no, and yet we do. What can we do to change our ways, to guarantee our safety in an uncertain world?

In an ideal world, there would be no enemies, hence no war: war would be prevented by militaries before it occurs – Victory before War. There is a little known scientifically proven way to accomplish this, by using a brain-based technology known as Invincible Defense Technology (IDT). IDT incorporates non-religious advanced techniques of Transcendental Meditation (TM) which, when practiced twice a day in large groups, has the effect of raising the consciousness of all those within its field. 

Extensive peer-reviewed scientific research has repeatedly confirmed that when large groups of experts practice these advanced techniques together, a powerful field effect is generated which affects the surrounding population. This results in measurable decreases in war deaths, terrorism, and crime whenever IDT is utilized.

IDT was previously utilized in Washington D.C. over a two-month period in the summer of 1993, where 4000 meditators gathered for an experiment to lower crime. The result, as documented by an independent board of criminologists, was a 24 percent reduction in criminal violence. This profound reduction in social stress also influenced the public approval of the US president, which suddenly changed from a negative trend to a positive trend, as predicted (Reference: Social Indicators Research, 1999, 47: 153-201).

A study published in May 2019 in Studies in Asian Social Science6(2), 1-45, found that IDT implementation by students trained in the advanced TM techniques resulted in a 96% decline in sociopolitical violence in war-torn Cambodia as compared to violence in the preceding three years.

The Global Union of Scientists for Peace (GUSP) advocates IDT as a cost-effective, simple means to rapidly reduce the societal stresses held to be the underlying cause of terrorism and war.

Military and civilian groups in South America, Africa, and parts of Asia are currently field-testing this approach by creating Prevention Wings of the Military, using IDT to reduce crime, quell violence, create prosperity, prevent the rise of enemies, and create the conditions for lasting peace. 

No nation can afford another war, and no country can feel safe as long as nuclear weapons are available to be deployed, whether intentionally or by human error. It is time for all of us to consider embarking on a new course of action, utilizing IDT to raise the global consciousness so that positive solutions can be found which do not involve war.

Because our next war may well be our last.

*Dr. David Leffler served as an Associate of the Proteus Management Group at the Center for Strategic Leadership, US Army War College. Currently, he serves as the Executive Director at CAMS.

Arlene J. Schar has served as Dr. Leffler's Executive Assistant at the Center for Advanced Military Science (CAMS) http://www.StrongMilitary.org since 2015. She has edited and co-authored many of Dr. Leffler's articles.

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International Law

How To Get Away With Murder

Ankit Malhotra

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 The Enrica Lexie Case involved two Italian marines namely, Salvatore Girone and Massimiliano Latorre, who were accused of shooting two Indian fishermen, Jalastine and Ajeesh Binki, off India’s southeastern Kerala coast on February 15, 2012. “We have not heard a word from the PM or the Government of India on the matter. It sends a dismaying signal that Indian lives don’t matter to the Indian Prime Minister and that justice can be sacrificed at the altar of diplomatic expediency,” said Shashi Tharoor, Congress Member of Parliament from Thiruvananthapuram. On the contrary, India had detained the marines on board of the Italian tanker, Enrica Lexie for killing the fishermen on an Indian vessel, St Antony. The arrest and subsequent exercise of jurisdiction by Indian authorities had plagued relations with Italy for years.

Italy had alleged that India had violated United Nations Convention on the Law of the Sea (UNCLOS) provisions by ordering the detention of the Italian tanker, but this was rejected unanimously by the International Tribunal for the Law of the Sea (ITLOS). During the legal proceedings, the foremost legal issue that was raised was on the question of Indian jurisdiction to conduct criminal trials. India argued that it had jurisdiction over the case since the deceased fishermen were Indian, therefore, the case must be tried as per Indian laws. On the other hand, the Italians argued that shooting took place beyond Indian territorial waters, marines on-board were Italian and flying under an Italian flag. Thus, Italy had jurisdiction. Furthermore, the Italians argued, the marines acted to protect an Italian oil tanker as part of an anti-piracy mission.

ITLOS, a Tribunal created as per the provisions of the UNCLOS, is aimed by the desire to settle, in a spirit of mutual understanding and cooperation, all issues relating to the law of the sea. Italy approached ITLOS and based on its request, ITLOS referred the Case to the Permanent Court of Arbitration (PCA), which was constituted under Annex VII of the UNCLOS on June 26, 2015.

ITLOS upheld the actions of the Italian marines, but in contrast, held that Italy was in breach of India’s Freedom of Navigation as per Articles 87(1)(a) and 90 of UNCLOS. On the question of jurisdiction, ITLOS observed that India and Italy had “concurrent jurisdiction” over the incident and a valid legal basis to institute criminal proceedings against the marines. ITLOS rejected Italy’s claim to compensation for the detention of the marines. Conversely, the Tribunal ruled that the accused enjoy diplomatic immunity that is granted to foreign State officials, which will act as an “exception to the jurisdiction of the Indian courts”. As a consequence, Indian courts cannot judge the case owing to diplomatic cover.

Furthermore, the PCA enabled India to seek compensation and asked India and Italy to consult on the amount of compensation due. In a close 3:2 vote, ITLOS President Jin-Hyun Paik and former President Vladimir Golitsyn and Professor Francesco Francioni voted in favour of Italy,  whereas Judge Patrick Robinson and Judge Pemmaraju Sreenivasa Rao voted in favour of India on the note of “commitment expressed by Italy” to resume a criminal investigation into the incident in Italy. ITLOS held India must cease to exercise its jurisdiction on the Italian marines.

Disclosing the details of the verdict, Indian Ministry of External Affairs spokesperson Anurag Srivastava stated, that the court upheld the conduct of the Indian law enforcement authorities, declared that Italy had breached Freedom of Navigation and concluded that ITLOS rejected Italy’s claim for compensation for the detention of the marines. “However, it found that the immunities enjoyed by the Marines as State officials operate as an exception to the jurisdiction of the Indian Courts and, hence, preclude them to judge the Marines.” In a statement on Thursday, the Italian Foreign Ministry said, “Italian Marines Massimiliano Latorre and Salvatore Girone, are entitled to immunity from the jurisdiction of Indian courts concerning the acts which occurred during the incident of 15 February 2012. India is therefore precluded from exercising its jurisdiction over the Marines. The Arbitral Tribunal has therefore agreed on the Italian position that the Marines, being members of the Italian armed forces in the official exercise of their duties, cannot be tried by Indian courts.” Acknowledging the breach of freedom of navigation, it said, “As a result of the breach, India is entitled to payment of compensation in connection with loss of life, physical harm, material damage to property and moral harm suffered by the captain and other crew members of the Indian fishing boat St. Anthony.” “Italy stands ready to fulfil the decision taken by the Arbitral Tribunal, in a spirit of cooperation,” the Italian Foreign Ministry said.

In reaction to the verdict, Senior Advocate K.N Balagopal mourned with distaste and said; “What happened was a cold-blooded murder”. Balagopal represented the State in the case before the Supreme Court in the matter. “Compensation is anyway granted in such cases; the marines should have stood trial in our courts for the crime committed”, he added. He called the verdict less than a victory “though there is some vindication to an extent”.

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International Law

Reassessing Sustainable Governance Models for the Post-COVID 19 World Order

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Authors: Manini Syali and Aaditya Vikram Sharma*

The Coronavirus pandemic is not the first occasion when human civilizations are witnessing the outbreak of a deadly disease. This becomes even more crucial in the present day era, dominated by technological and scientific advancement, when cures for a number of life threatening ailments have successfully been discovered. Yet, a virus, because of its highly contagious nature has brought human life to a complete halt and even specialised international organisations like the World Health Organisation, devoted towards the sole objective of maintaining health care standards worldwide, more or less appear to be helpless in containing it. The pandemic can be called a watershed moment, after recovering from which, the way human beings have been living in industrialist societies will change drastically. Signs of this change can be felt in the form of increased awareness towards environmental issues, which in spite of having been a subject matter of policy consideration for more than fifty years now, largely remained being seen as ancillary in front of ‘crucial issues’ like peace, security, poverty etc., which demand swifter actions. The need of the hour, therefore, is to broaden the horizons of ecological analyses, as it is being done traditionally, and to realise that pathogens need to be made an integral part of eco-system management.

Further, it is a well-known fact that the consequences of environmental degradation have always been seen in anticipatory terms, reducing the gravity of the situation further. Moreover, the environmental doctrines like ‘sustainable development’, themselves are worded in such a manner that they portray sufferings of the generations yet to come instead of being seen as a present day problem. It will also not be wrong to say that there exists a resemblance between environmental principles like the polluter pays principle, precautionary principle, transboundary environmental pollution etc. and the classic common law doctrines having their basis in the tort of negligence. This has further strengthened the perception that non-abidance with the said doctrines will merely give rise to claims of compensation which can be easily settled in monetary terms. Alternative jurisprudential theories like green-criminology, which advocate criminal remedies in case of environmental destruction, or imbibing sustainability in all kinds of regulatory frameworks, therefore, majorly remain limited to academic discussions.

An attempt will, therefore, be made in the present article to trace the evolution of the already existing models of environmental governance and give a critique, highlighting their non-applicability in the post-Corona world order, which would demand alternative models of sustainability and would not only help in containing the spread of similar diseases in the future but will also supplement effective implementation of the already existing environmental law instruments. 

Technocratic Progress and Altered Human Conditions

In the 18th century, the human kind encountered a life changing turn of events in the form of Industrial Revolution. The repercussions of the revolution were such that it did not remain limited to the economic front and left its impact on the social and cultural life of individuals as well. Moreover, the changes which the society underwent as a result of the revolution were rather quick and demanded implementation of regulatory frameworks, covering different aspect of human life. A few examples of the same are family laws for regulating altered family ties, alien to the pre-industrial society, establishment of a legal regime for intellectual property rights, banking and commercial laws for facilitating the contemporary financial activities etc. The way nation states interacted with each other also witnessed drastic changes due to increased dependence on technology.

The gravity of the situation, however, was only realised in the year 1962, in the aftermaths of the Cuban missile crises, when around two dozen experts met in Santa Barbara, California during a Conference to discuss the impacts of technology on human affairs. The conference ended on an optimistic note, but also received a highly sceptical submission from the side of French sociologist Jacques Ellul, who argued that human life had become dangerously dependent on Technology and no aspect of it had the capacity to escape ‘the technique’.

Early Years of Environmental Governance

The criticisms against the technocratic notions of ‘progress’, however, remained limited to sociological fronts for a long time despite emergence of early signs of Climate Change in the late 1950s itself.The United Nations (UN)-centric international legal regime also remained silent on these issues till the advent of the UN Conference on Human Environment (Stockholm Conference),held in the year 1972. The Conference was the first occasion when global environmental issues were discussed as a matter of concern at the global level. Before this also environmental treaties existed, but they largely remained limited to localised issues like wildlife preservation, migratory birds, conservation of wetlands etc. Multiple factors like extinction of the Blue Whale due to indiscriminate hunting, rampant nuclear bomb testings in the 1960s and use of chemical warfare during the Vietnam War which adversely impacted environment as well as human health, finally resulted in a proposal from the side of the Swedish government to organise the Conference.

It will not be wrong to state that the Stockholm Declaration, the legal instrument produced as a result of the Stockholm Conference appears more to be a Human Rights instrument rather than an environmentally oriented regulatory framework. Moreover, the anthropocentric nature of the declaration, which otherwise is popularly known as Magna Carta of environmental law, gets reflected in its preamble itself.

Evolution of Sustainable Governance Models

This spirit of the declaration, was further carried forward in the Brundtland Commission report, published in the year 1987, which gave the concept of ‘sustainable development’ a concrete shape. Through this concept it was realised that developmental activities cannot be given up in absolute terms and the need of the hour, therefore, was to adopt environmentally sustainable activities to create a balance. The next milestone in environmental regulation, achieved by the World Community, was the UN Conference on Environment and Development. The conference gave birth to three important environmental law instruments namely, the Rio Declaration, the Convention on Biological Diversity (CBD) and the United Nations Framework Convention on Climate Change (UNFCCC). Further, all three of the above mentioned instruments had ‘sustainability’ as their theme. 

Despite receiving a good response from nation states in the form of substantial number of ratifications, the objectives of the above mentioned international instruments has remained a distant dream and the natural environment continues to witness deterioration, so much so, that it is about to reach the stage of irreversibility. Further, rampant developmental activities, which are being carried out at a global scale have also totally disregarded the principles of ‘conservation’ and ‘sustainable use’, as enshrined in the preamble of CBD. The UNFCCC mandate of ‘stabilization of greenhouse gases’ has also not received a collective effort from the side of the World Community.

Sustainability in the Times of Coronavirus Pandemic

The significance of these issues increases multifold in the contemporary times when the World is witnessing a humanitarian crises in the form of the COVID19 pandemic. Establishing a connection between ‘development’, ‘environmental degradation’ and the Corona Virus pandemic is  important because in the roots of this virus spread lies the illegal wildlife trade in which China has remained engaged for decades. In the past also the scientific community has attributed origination of several contagious diseases to Chinese wet markets where exotic and vulnerable species are sold at commercial levels. This deadly disease outbreak is, thus, being seen as an eye opening moment, having the capacity to halt wildlife trade as well as habitat destruction. 

The other linking point between the Coronavirus pandemic and sustainability is the issue of sanitation and hygiene.  Insanitary conditions can be called both a cause and an effect of the pandemic. The connection between unhygienic practices and disease outbreak does not require much explanation, however, the bio-medical waste management and related issues have emerged as a major regulatory hassle in the present day crisis, which are demanding a detailed policy framework for proper management. This also gets reflected in the ‘Goal 6’ of the Sustainable Development Goals (SDGs), established in the year 2015 by the United Nations General Assembly, which talks about ‘Ensuring availability and sustainable management of water and sanitation for all.’

It has further been reported that due to the lockdowns imposed in several nation states, economic and industrial activities came to a complete standstill, which resulted in drastic reduction in greenhouse emissions worldwide. Certain reports were also rejoicing by citing positive signs being shown by ozone layer recovery and giving the Corona pandemic a credit for the same. In those moments of temporary happiness, the years which national jurisdictions spent in implementing the Montreal Protocol on Ozone Depletion were discredited.  Moreover, if latest reports are to be believed catastrophic rise in greenhouse gases has further worsened the condition of ozone levels in the environment. This raises a very pertinent question with respect to how the mankind plans to deal with climate change, because of the simple reason that such arguments are simply based on devaluing persistent application of sustainable governance models, which will not merely improve the degraded environmental conditions but will also result in improvement of living condition of millions of individuals living under perilous circumstances.

*Aaditya Vikram Sharma, Assistant professor, Vivekananda Institute of Professional Studies.

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International Law

Kashmir conundrum and the international law

Abdul Rasool Syed

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The scrapping of article 370 and subsequent annexation and illegal occupation of the state of Jammu and Kashmir by India has once again, brought the seven-decades-old Kashmir issue, a prime cause of friction between two nuclear states India and Pakistan into international limelight. Before this constitutional catastrophe, the state had special status, separate laws, constitution, and flag. This special status has been revoked in utter contravention of UNSC resolutions and international law.

This mala fide move by Modi government is indubitably aimed at eclipsing the importance of the issue of Kashmir by localizing it and thereby   putting it on backburner.  However, the irrefutable fact is that the Kashmir is a disputed territory between India and Pakistan, and recognized as such, without any reservation, by international community.

Amid Indo-Pak partition, Under Article 2 (4) of the independence act of India, the princely states were given choice to join “either of the new Dominions”. While it was an easy decision for some princely states due to their geographical proximity, territorial contiguity or political and religious affiliation of the rulers and subjects, the accession of the State of Jammu and Kashmir emerged as a chronic conundrum and a nuclear flash point between two nuclear countries India and Pakistan.

 To add, in the beginning, the ruler of the state, Maharaja Hari Singh, toyed with the idea of remaining independent. However, Indian machinations spearheaded by Congress leaders including Nehru and Patel created such circumstances for maharaja that left him with no option but to capitulate to their demand of  “ Accession of state of Jammu and Kashmir  to India”.  Hence, Hari Singh, due to unwarranted conditions, forged by the Indian Machiavellian masterminds, had to agree to sign the instrument of accession with India.  Thus, On October 27, 1947, the governor general of India approved the accession with the condition that “as soon as law and order were restored in Kashmir…the question of [the] state’s accession should be settled by a reference to the people [of Jammu and Kashmir].”

The purported Instrument of Accession (which India has failed to produce) denies the authority of any unilateral action by India. The terms of this Instrument would not be varied by any amendment of the Indian Independence Act, 1947 without acceptance of the ruler of the state (clause 5). Further, nothing in the Instrument could have been deemed to be a commitment as to acceptance of any future constitution of India and nothing could affect the sovereignty of the Maharaja over the state (clause 7 and 8).

 So far as the internationalization of the issue of Kashmir is concerned, it is India that took the issue to international forum by knocking at the door of UN security council back in January 1, 1948, resultantly the Council, via UNSCR 38, called upon the contending governments to refrain from aggravating the circumstances and report any material changes on the ground. Thereafter, the Security Council over a number of years issued a total of 17 resolutions on the disputes status of Kashmir. UNSCR 47 of 1948, the most important of roughly all resolutions on kashmir, calls for the resolution of the dispute of Kashmir’s accession to either India or Pakistan through effecting the democratic means of a free and impartial plebiscite.

Simla agreement is another worth quoting document ,deemed as  the premier bilateral accord between the warring nations, it holds that “principles and purposes of the Charter of the United Nations shall govern the relations between the countries”, hence shining light on the validity of the UNSC resolutions on Kashmir. The disputed nature of the issue is further reiterated as, “In Jammu and Kashmir, the Line of Control resulting from the cease-fire of December 17, 1971 shall be respected by both sides without prejudice to the recognized position of either side.

Moreover, the same Simla Agreement also forbids unilateral action to change the status of the state. Clause 1(ii) of the agreement specifically states that neither side shall unilaterally alter the situation. Clause 6 further emphasizes that both the countries should discuss modalities for a final settlement of the state through diplomatic means. Thus, India’s claim that the revocation of Occupied Kashmir’s ‘special status’ is its internal issue negates its commitment under the agreement.

 Additionally, the right of self-determination is the basic principle of the united Nation charter which has been reaffirmed in the universal declaration of human rights, and applied countless times to the settlement of international issues. The concept played significant role in post-world war I settlement, leading for example to plebiscite in a number of disputed areas.

However, in 1945 the establishment of UN gave a new dimension to the principal of self-determination. It was made one of the objectives which the UN would seek to achieve, along with equal rights of all nations.

The principle of self-determination and the maintenance of international peace and security are inseparable. For example, the denial of this right to self-determination to the people of Kashmir has brought the two neighboring countries in South Asia — India and Pakistan to the brink of nuclear catastrophe.

Apart from the specific UN resolutions which guarantee Kashmiris’ the right to self-determination, the UN Charter in Article 1(2) declared one of its purposes as, “To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples”. This serves as the biggest impetus to the said right under international law.

In 1952, the General Assembly further expounded this principle and stated in Resolution 637A(VII), that ‘the right of peoples and nations to self-determination is a prerequisite to the full enjoyment of all fundamental human rights’ and recommended that UN members ‘shall uphold the principle of self-determination of all peoples and nations’. The Declaration on the Granting of Independence to Colonial Countries and Peoples enshrined in GA resolution 1514 of 1960 upheld the right to self-determination. The resolution explicitly says, “All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development”.

What’s more to say is that the principle of self-determination was given overwhelming protection in Article 1 of both International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR). In 1966, these two covenants enshrined the self-determination principle verbatim as was laid in GA resolution 1514. The Declaration of Principles of International Law Concerning Friendly Relations (GA Resolution 2625 of 1970) went further in recognizing that peoples resisting forcible suppression of their claim to self-determination are entitled to seek and receive support in accordance with the purposes and principles of the Charter. Since the adoption of the Declaration in 1970, the ICJ has, on a number of occasions, confirmed that the principle of self-determination constitutes a binding norm of customary international law and even a rule of jus cogens- peremptory rule of international law. Thus, international law and the specific UNSC resolutions on Kashmir uphold and provide the Kashmiris with the overriding principle of right to self-determination.

Inter alia, by the revoking the state’s ‘special status’, the situation has now become an ‘occupation’ with an ‘unlawful annexation’. India is an Occupying Power and it has unlawfully annexed the state. From international legal opinion on the issue of self-determination, as developed in the aftermath of the Second World War and the process of decolonization, the fate of millions of people cannot be left to the whims of India. Given the UN General Assembly’s resolution of 1960 concerning Declaration on the Granting of Independence to Colonial Countries and Peoples, the people of Jammu and Kashmir have every right to self-determination.

India has no title on the state under international law. India’s illegal occupation since 1947; denial of the right to self-determination of the people; application of India’s constitution by removing the state’s special status, makes India an Occupying Power and its army a hostile force. The BJP’s recent attempt to include the territory of the state within the Union’s territory of India is an act of ‘occupation’ and ‘illegal annexation.

 While commenting on Article 47 of the Geneva Convention IV, jurist Jean S Pictet explains that the Occupying Power is the administrator of the territory and is under various positive obligations towards the Occupied Population (ie the Occupying Power cannot annex the Occupied Territory or change its political status). Jean elaborates that the Occupying Power must respect and maintain the political and other institutions of the Occupied Territory. Therefore, India being an Occupying Power cannot annex the state’s territory and is bound to keep the state’s institutions and territorial boundaries intact till the conduct of plebiscite under the UNSC resolution 1948.

The International Commission of Jurists has categorically stated that “the Indian government’s revocation of the autonomy and special status of Jammu and Kashmir violates the rights of representation and participation guaranteed to the people [of Jammu and Kashmir] under… international law”.

To cap it all, the world powers should take a leaf from the statement made on June 15, 1962 by American representative to the UN, Adlai Stevenson” the best approach is to take for a point of departure the area of common ground which exists between the parties. I refer of course to the resolutions which were accepted by both parties and which in essence provide for demilitarization of the territory and a plebiscite whereby the population may freely decide the future status of Jammu and Kashmir.”

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