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International Law

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 and governance for the future 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.

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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International Law

Shari’a Law and Dispute Resolution in the Post-COVID-19 Legal Order

Damilola S. Olawuyi

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Modern societies have for many years evolved efficient methods for resolving legal disputes in a peaceful manner. Litigation in courts, as well as out-of-court alternative dispute resolution (ADR) methods – such as negotiation, mediation, conciliation and arbitration – are popular avenues through which a wide range of commercial and non-commercial disputes are resolved in Qatar and beyond.

However, the ongoing COVID-19 pandemic poses complex and multifaceted challenges to justice delivery systems across the world. History teaches us that in times of global disasters and economic disruptions, such as those triggered by COVID-19, legal disputes significantly increase. These include employment disputes, breach of contract, bankruptcy, insurance claims, family disputes, supply chain disruptions, and more. In light of the impending tsunami of complex legal disputes that could arise post-COVID-19, lawyers and judicial institutions will require support so that they can effectively handle such disputes and not be overwhelmed. In addition to technological, digitalization, financial and infrastructure needs, innovative dispute management mechanisms will be required to avoid institutional gridlock.

The COVID-19 pandemic provides an opportunity to explore how Shari’a law – the principal source of law in Muslim countries – can provide additional and innovative avenues for dispute resolution. For many years, the value of Islamic ADR has been explored in the literature but has not been exhaustively tested. Islamic ADR promotes the resolution of disputes outside of courts, in accordance with the tenets and procedures of Shari’a law. Shari’a-compliant modes of resolving disputes include Muhtasib (use of an ombudsman); Sulh (negotiation, mediation/conciliation); and Tahkim (arbitration). One distinguishing feature of Islamic ADR, as compared to traditional ADR methods, is that parties agree to abide by Qur’anic injunctions and prophetic practice in determining their claims. For example, the Qur’an and Hadith prohibit the levying of interest (riba). In selecting Islamic ADR, parties therefore choose to exclude riba.

In addition to its inestimable moral, cultural and spiritual value, Islamic ADR can provide an alternative legal framework for resolving non-commercial disputes such as family disputes, property and inheritance. The same is also true of small and medium scale entrepreneurial disputes where religious tenets and principles can play a key role in timely, less acrimonious, and cost-effective resolution. In a post-COVID-19 world, Islamic ADR Tribunals can reduce the impending pressure and demand on courts and ADR institutions and allow parties to achieve final and binding resolution in a timely, accessible and cost-efficient manner.

Islamic ADR can be implemented within the framework of existing judicial institutions across the Islamic world. Among the lessons that can be gleaned from countries such as the United Kingdom, Malaysia and Indonesia, where Islamic ADR is already being implemented with varying levels of success, is that the most important first step is to develop clear and comprehensive rules and procedures that provide legal backing and support for Islamic ADR.

For example, the Asian International Arbitration Centre in Malaysia has developed Islamic Arbitration Rules (i-Arbitration Rules), which provide a comprehensive framework of Shari’a-compliant rules and procedures for resolving disputes. An equally important step for fast-tracking the adoption of Islamic ADR is to leverage the existing expertise of arbitrators, practitioners and scholars who are already well versed in the intricacies of ADR, as well as the fundamental principles of law. Such experts can guide the speedy development of tailored Islamic ADR principles and procedures that reflect the rich and diverse legal cultures and traditions across and within Muslim countries.

Higher education institutions also have crucial roles to play in developing innovative programs to train and prepare societies for the emerging legal order post-COVID 19. The College of Law at Hamad Bin Khalifa University (HBKU) is already spearheading innovation in this area. Through its Juris Doctor (J.D.) program, LL.M. in International Economic and Business Law, LL.M. in International Law and Foreign Affairs, as well as the Certificate Program “Law in Practice in Qatar”, students have exceptional opportunities to acquire comparative legal skills and knowledge on the rudiments of ADR and its practical application in their home countries.

This article is submitted on behalf of the author by the HBKU Communications Directorate. The views expressed are the author’s own and do not necessarily reflect the University’s official stance.

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