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International Law

Law in Text or Law in Context: What we need?

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According to Lon Fuller, the law should not be just read as it is but should be read as what it should be. It should be read with the concept of morality. He states that rules should necessarily be moral for fostering the objectives of mankind. This he called as the ‘external morality’. A law should be fluid enough to adjust to the dynamic nature of society. As per Fuller, law should be framed in such a way which brings people together for serving their best interest.[1]

In this paper I have argued that, with changing time there is an earnest need to adopt the contextual interpretation approach of law in order to hold the rights of the people.The researcher has taken the example of Procedure established by law versus Due process of law and Right to Privacy to substantiate his argument.

Procedure established by Law vs. Due Process of Law

Article 21 reads for the restrictions on personal liberty subject to the procedure established by law. Interpreting this article by textualism or positivism, restrictions can be put upon the rights of any person if any law has been passed by the authority in such respect. Such an approach does not take into account the critical morality of the society as the procedure established decades ago may be anachronistic today. In the case of ADM Jabalpur v Shivkant Shukla,[2]the court adopted the textual interpretation of law and held that right to approach the court under article 14, 21 and 22stands suspended during the emergency. The court took this stance on ground of Article 359(1) which in this case was the ‘procedure established by law’.

However, the phrase ‘procedure established by law’ was read in consonance with the phrase ‘due process of law’ in the case Maneka Gandhi vUnion of India[3]. The court held that the procedure established by law must be just and fair and not arbitrary thereby expanding the scope of article 21. Fundamental rights are not distinct and mutually exclusive rights.The legality test of a law won’t just be limited to Article 21 but can be sufficiently challenged by provisions in Articles 14 and 19 as well.[4] This constituted the golden triangle of Articles 14, 19 and 21.[5]

The majority judgment in the Jabalpur case was overruled in K.S. Puttaswamyv Union of India.[6] The bench held that the right to life and personal liberty was present even before the Constitution of India came into being. It is an erroneous construct to think that these rights are subject to the will of the state who can curtail the liberty of the citizens by making unfair and unjust laws.

Right to Privacy

In the case of Kharak Singh v State of UP,[7]textualism approach was used. The two parts of the judgment contradicted each other in the very essence. Justice Rajagopala Ayyangar submitted that the Art 19(1)(d) doesn’t stand violated by surveillance over an individual’s movement and the article just talks about physical interference with movements and not mental.

The main legal issue was whether clause ‘b’ of Regulation 236 of the UP Police Regulations which allowed domiciliary visits at night, was unconstitutional or not. Interpreting Article 21, the court held that the above-mentioned clause violated the Right to personal liberty. When articles 19 and 21 are read together, article 19 speaks about reasonable restrictions which can be put by the state by enforcing some law. Clause ‘b’ of Regulation 236 of the UP Police Regulations is merely a rule of the police and not some law enforced by the state.[8] So, having not been backed by some law, domiciliary visits at night are violative of Article 21 which reads of ‘personal liberty’ and the clause was struck down. With the given proposition, it can be implied that the court upheld Right to Privacy implicitly.

When the question of keeping a watch on the movements of suspect came to light, the court interpreted Article 19(1)(d)and read it as the freedom to move around without physical impediments. Mere vigilance over the person doesn’t restrict his or her movement. The watch over an individual’s movement was violative of Article 21 and his privacy. But the court held that Right to Privacy wasn’t a right explicitly guaranteed by the Constitution of India and Article 21 also has no say in the argument. Going by the textual interpretation of Article 19(1)(d), the court contradicted its own proposition in the first part of the judgment which implicitly recognised right to privacy.

In Puttaswamy case,the Supreme Court of India observed that right to privacy, though not explicitly written in Article 21, has its origin from right to life and personal liberty, thereby supporting the dissenting statement of Justice K Subba Rao in the Kharak Singh case. It also arises from various other fundamental rights enumerated in the Constitution. Going beyond the text of the Constitution and bringing in the concept of critical morality, the court broadened the purview of Article 21. The court overruled the majority judgment in Kharak Singh case on the grounds of infringing the Right to privacy.

Prof. Hart supports constitutionalism in some instances because according to him, words as written in the law are not sufficient to give a proper meaning. He termed this as ‘penumbra of doubts.’ Hart says that these problems can be easily solved by judicial interpretation. He talks about intersection of law and morals while dealing with such problems. Morals are an influential factor in deciding cases which fall in this penumbra.[9]  This theory buttresses the contextualism approach.

Conclusion

With changing times, there is a need to change the perspective of how law is to be understood. One such way is to adopt the ‘living tree’ doctrine of reading the Constitution. In this approach, it doesn’t matter what was the intent behind the formation of law. The thing which matter the most is how the Constitution can be read to contain rights in their broadest realm. Dworkin says in Freedom’s Law that “according to the moral reading, these clauses must be understood in the way their language most naturally suggests: they refer to abstract moral principles and incorporate these by reference, as limits on government’s power.”[10] This proposition by Dworkin buttresses the ‘living tree’ doctrine of interpretation.

It has been observed through a range of studies that in the coming 20-30 years, the world will certainly become more urban, better educated and connected to each other as well as to information about their rights and more empowered.[11]In the current scenarios of law making by the legislators, courts and others, the law makers must keep in account the social changes that are taking place in the society, if regulating the social order is of paramount importance to them.[12]

The courts, with the change in social scenarios, have felt the need to change the view of how law should be seen. In the case of Navtej Singh Johar v Union of India,[13]the court followed this approach and recognised the rights of the LGBTQ community. CJI Dipak Misra took the approach of transformative Constitutionalism and dynamic acknowledgment of rights to hold that the Constitution must guide the general public’s change from a bygone to modern approach society where fundamental rights are strictly protected. He also said that, “Constitutional morality would prevail over social morality”.[14] The recent judgments are reflective of the above-mentioned change.This approach according to me will help people exercise their liberty and give them rights which they are entitled to.


[1] Lon L Fuller, The Morality of Law, Revised edition, Universal Law Publishing Co Pvt Ltd 2000 at p. 95-118 & 187-225 127.

[2]ADM Jabalpur v Shivkant Shukla [1976] 2 SCC 521. (hereinafter Jabalpur case)(Supreme Court of India)

[3]Maneka Gandhi v Union of India,AIR 1978 SC 597. (Supreme Court of India)

[4]¶ 48, Maneka Gandhi,AIR 1978 SC 597.

[5]¶ 74, Minerva Mills Ltd. And Othersv Union of India[1980] 3 SCC 625. (Supreme Court of India)

[6]Justice K.S. Puttaswamy v Union of India [2017] 10 SCC 1. (hereinafter Puttaswamy case) (Supreme Court of India)

[7]Kharak Singh vState of UP AIR 1963 SC 1295. (hereinafter Kharak Singh Case) (Supreme Court of India)

[8]¶ 18, Kharak Singh, AIR 1963 SC 1295.

[9] HLA Hart, ‘Positivism and the Separation of Law and Morals’ [1958] 71[4] HARVARD LAW REVIEW, 593- 629.

[10]Thulasi K. Raj, ‘Ways to read the Constitution’ (The Hindu28 August 2018) <https://www.thehindu.com/opinion/op-ed/ways-to-read-the-Constitution/article24794977.ece>accessed 13 August 2019.

[11]David Petrasek, ‘Global Trends and The Future of Human Rights Advocacy’ [2014] 11(20) SUR- INTERNATIONAL JOURNAL ON HUMAN RIGHTS, 2.

[12]Wolfgang Friedmann, Law in a Changing Society (first published 1972, Columbia University Press) 3.

[13]Navtej Singh Johar v Union of India [2018] 1 SCC 791. (Supreme Court of India)

[14]¶121, Navtej Singh Johar [2018] 1 SCC 791.

I am a 1st year student at National Law School of India University, Bangalore. I was also recommended for the Army cadre under NDA-II, 2016 exam. I am passionate about writing articles on pressing issues. My areas of interest is Constitutional Law.

International Law

Cooperation in a Changing World: A Discussion on New Regionalism and Globalisation

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The two main trends that have shaped the World Economic Order are 1) multilateralism, which sets global rules for international trade without favouritism, and 2) new regionalism, which sets up several zones of regional free trade and cooperation that can apply development and economic growth more quickly and flexibly but have a limited geographic scope.

Hettne (1995) says that “new regionalism” is not a single policy but a set of policies that focus on economics or other factors. “Regionalism” refers to a complex change process involving state and non-state actors at the global, regional, and national levels. Since actors and processes interact at many different levels and their relative importance changes over time and space, it is impossible to say which level is the most important (Soderbaun, 2001).

This article highlights the discussions between the experts on regional cooperation and integration and the supporters of multilateralism and globalisation. The objective is not to extend arguments that can be endless due to rich literature, however, it is to show the major points of contention that can lead to more research and discussions.

Gilson (2002) and other scholars argue that regionalism divides the international system into different and separated competitive blocks, despite arguments to the contrary from authors and analysts like Hettne (1998, 2005), Beeson (2009), and Dent (2004). Regionalism, especially forms of closed regionalism, acts as an obstacle on the path to globalisation (Dent, 2008).

Authors in the first category argue that globalisation and regionalism are not mutually exclusive concepts. Their reasoning rests on the GATT-WTO conception of regionalism and regionalisation as integral to and predating globalisation. As of 2022, the WTO had informed about 356 Regional Trade Agreements (RTAs) in force (and its predecessor, the GATT), while several others are thought to be in effect but have yet to be reported (see: WTO, 2022 database).

 Regional trade liberalisation and cooperation arrangements have been considered important intermediate measures, enabling nations to cope with the risks and opportunities of the global market and embrace new multilateral regulations (Katzenstein, 1997). The developing tensions between economic regionalism and economic multilateralism directly result from the mutually reinforcing nature of regionalism and globalisation. As seen with the end of the Uruguay Round, when integration into the EU prompted some member states to adopt the GATT deal, and with NAFTA’s significant impact on the liberalisation of investments, regional cooperation can be a good stepping stone to an accessible international economy. According to Summers (1991), regionalism affects the multilateral international trade system and will increasingly serve as a driving factor towards liberalisation. Summers contends that regional liberalisation is the best approach towards liberalisation and globalisation.

In contrast, the second category of experts’ places greater emphasis on the notion that discriminatory regional and sub-regional accords are a response to globalisation. As an example, Bhagwati (1993) argues that protectionism, mercantilism and other regionalism delay global liberalisation and threaten the multilateral trading system. Bergsten (1997) says that the European Monetary Union (EMU) shows how it sets priorities that differ from those of the world. Furthermore, regional blocs can contribute to geo-economics conflicts, which may have political implications.

Three key issues are raised by those who want complete dependence on the multilateral approach (Bhagwati and Panagariya, 1996):

  1. Trade is diverted by regional cooperation.
  2. The distraction of attention.
  3. The geopolitical consequences of regionalism.

 First, they point out that trade is diverted by regional cooperation that provides members favourable treatment over non-members. Members may also profit from favourable policies and regulations for restricted content in addition to differential tariffs. According to opponents, the disadvantage of regional liberalisation can be more than overcome by the impact of preferences, resulting in a diversion of the trade balance.

Also, they are worried that transferring tariff revenues under a preferential arrangement could hurt the way one member’s income is split. The distraction of attention is the second point raised by critics. They say that if countries get involved in regional projects, they might lose interest in the multilateral system, which could stop its growth and possibly make it less effective.

The United States’ rapid change in trade policy since the early 1980s has drawn particular attention. The international system had previously received top attention from the United States. It declined to take part in regional economic integration. The main reasons the U.S. agreed to the creation and growth of European integration were political and security issues. The U.S. wanted to keep Europe safe and out of war.

The geopolitical consequences of regionalism are the third issue. Regional trade agreements (and economic groupings more generally) may have caused political and even military conflicts between governments in former times. While modern regionalist critics do not expect such severe results, analysts are concerned that close and intense regional links may cause aggravations and even conflicts that extend beyond economics to more generalised domains of global affairs.

Regionalism proponents hold opposing viewpoints on each of these topics (Bergsten, 1996). First, they contend that regional agreements advance free trade and multilateralism in at least two ways: first, that trade expansion has typically surpassed trade contraction, and second, that regional agreements support both domestic and global dynamics that increase rather than diminish the likelihood of global liberalisation. For developing nations, the internal dynamic is particularly crucial since regional agreements, which can be negotiated considerably more quickly than global accords, lock in domestic reforms against the possibility that succeeding governments will attempt to reverse them. Internationally, regional agreements frequently set the stage for liberalisation concepts that can then be broadly applied in the multilateral system.

Second, regionalism critics pointed out that it frequently has considerable, verifiable impacts. Regional integration will likely lead to further multilateral initiatives when officials, governments, and nations adapt to the liberalisation process.

Third, proponents of regionalism argue that it has had more positive than negative political consequences. Because of trade and closer economic cooperation, a new war between Germany and France was almost unthinkable in the European Union. Argentina and Brazil have used it to end their long-running rivalry, which has recently taken on nuclear implications.

APEC’s primary objectives include establishing the United States as a stabilising power in Asia and creating institutional ties between nations that were once adversaries, like Japan, China, and the rest of East Asia. Therefore, the potential of carrying up peace through cooperation is greater than the likelihood of generating conflicts.

Defenders of regionalism point out that regional agreements are permitted explicitly by Article 24 of the GATT and, more recently, the WTO, recognising their consistency with the global trading system. Three requirements must be met for these agreements to be effective:

  1. They must substantially encompass all trade between member nations;
  2. They must not erect new barriers for outsiders;
  3. They must accomplish free trade among members by a specific date (usually to be at most ten years from the starting date).

Although it is generally acknowledged that the most significant regional agreements (the EU and NAFTA) have fully or largely met these criteria, the GATT and WTO have been largely ineffective in certifying and overseeing their implementation. Because of this, the important regions have had many reasons to say that they work well with the multilateral system.

In conclusion, regionalism and globalism are linked, but only if the major countries involved in the process manage it well. History shows they can succeed if they try to improve things for both sides. The outcome in former eras shows that this is also reasonably achievable if they desire to pursue one at the expense of the other. The process’s inherent dynamics are sufficiently balanced for the participants’ policy choices to be decisive.

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International Law

Institution’s evolution

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As the human civilization is evolving, the institutions that were once very relevant and inevitable have been becoming archaic and irrelevant and alarmingly becoming deleterious if remain enacted and rigid. Standing mass armies is one of such institutions, which is losing its relevance that it once earned through conscription of human resource and extraction natural resources. With the emergence of democracy coupled with the dilution of borders by globalization, the armies have lost their stage and much eulogized roles as the defender, protector and invaders. The yardstick to measure the strength of any nation was their military’s might which has now been replaced with other well established indicators.

To shed light upon how and why the role of armies has been dwindled, we have to dive into the modern historical account of the events and reasons that once made the army inevitable and much desirable. As the raison d’etat for establishing the armies and galvanizing their influence   was to acquire the large swaths of land and the quantifiable amount of people to propel the engine of their state machine. Resultantly, the expanded territories were in dire need to be regulated and protected with the iron fist rule, which could not be done without strengthening armies.

Now the hitherto said aspirations have become obsolete and less desirable due to changing dimensions of a society as a whole thereby the military too. To give credence to these assertions it is adequate to allude towards the decline in the tendency of ragging the territorial acquisition wars specifically in the post peace era. Now there is no incentive to acquire the large latifundia or the large amount of people to be slave them as farm workers or to conscript them into armies.

As per the report of the freedom house, there were scant sixty-nine electoral democracies in 1990; today there are more than one hundred and fifteen electrical democracies, which are more than sixty percent. In recently emerged democracies, resultantly, the transition from the centrally planned economies to the economic liberalization spawned the era of entrepreneurship and innovation. Now these budding democracies have recently embarked on the journey towards more opportunities and rising incomes that remained chimera twenty years ago. To bolster this claim, the human security report is enough as it claims that state-based arm conflict has ebbed by 40 percent and which is waning the propensity of countries to wage a full-scale war.

Furthermore, well-established democratic peace theory hits the last nail in the coffin of the aspirations to reinvigorate the military might. The increasing number of democracies are less likely to wage a war with another democratic country, which in result declines the chances of war.

As initially claimed, the ab initio reasons of having standing armies have squarely been replaced; it comes naturally in mind what have replaced them. In a complex and entangled world woven with the fabric of trade, ideas, and innovations, the war-philic countries are the least fit for survival in the Darwinian sense. The countries who are doing wonders in the spheres of economy ideas, innovations inter alia services are less prone to war and aggression.

Many but naming few as the innovation, ideas, trade, and entrepreneurial tendencies have substituted the reasons, which once made the armies relevant and inevitable. Sweden, Norway, UK at the top of global innovation index 2021 and the countries deprived of bloated, mighty, and behemoth militaries, which are also circumscribed in the limited territories, are at the peak of ideas, prosperity, and innovation as compared to those who are bestowed upon with unassailable armies.

Ostensibly, after taking into account the recent shift in the reason of having large standing armies, it is now necessary to discuss about the nature of the future warfare which poses the threats, but here too while dealing with them make everyone wary of the institution of armies and militaries which are too rigid to abreast with the current dynamic nature of warfare, resultantly, they have to bear the brunt of their rigidity everywhere.

Therefore, the Character of the future warfare is dramatically changing which incorporates the novel means to materialize the desired and often mischievous aspirations. In this regard, hybrid warfare is one emerging character, which includes a diverse variety of activities and instruments to destabilize the society, which surely would be desirable for its user. These instruments are like interfering in the electoral processes in which the adversaries can influence the outcome of the electoral processes in the direction, which benefit the adversaries’ political aspirations – Putin’s interference in Trump’s election campaign and Cambridge analytica.

Other instruments are disinformation and false news, Cyber-attacks, and financial influence. Which all of them have already been employing in different dimensions and scales. In this domain, Russia is employing all of these instruments with great dexterity. To better deal with such recent emerging means and tools, it has become a need of hour to introduce the more integrated and sophisticated ways to deal with hybrid warfare and to replace the rigid, archaic and obsolete militarily solutions. In doing so, fostering democracy, inclusion of civil society investment in media literacy are few but viable solutions.

Succinctly, the justifications for raising the large armies, which were to expand the territories, to slave the people or to protect the volatile boundaries, have recently been replaced or become obsolete and irrelevant. Therefore, this institution should be abreast its pace with the dynamic and changing character of the threats posing the great dangers. Moreover, the gauge to quantify the power of any country has resultantly been changed from the strength of armies to the innovation, ideas, entrepreneurial spirit, trade, and socio economic and socio political stability. Contemporarily, it has become futile to strengthen and increase the sizes of armies, which have already lost their relevance, conversely, the changing Character of warfare or better known as hybrid warfare, demands more.

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International Law

Sanctions as Weapons: A Challenge in Addressing Our Global Collective Problems

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Since the Ukraine conflict, ‘Sanction’ has become a buzzword worldwide. It has become a new instrument for the West to coerce others to attain their interests. The impact of the sanctions imposed on Russia has already reached almost every corner of the earth. The sanctions subsequently bolstered the energy crisis globally. It has also disrupted Russia’s worldwide trade and commerce as payment gateways block transactions. However, Russia was quick to overcome the financial blockade. China and Russia are also looking for alternative gateways to reduce their reliance. The latest sanctions have only complicated world affairs, putting the great powers at dagger’s drawn.

Since the last decade, economic and Human Rights sanctions have become popular worldwide. But a decade later, these sanctions hardly solved any issues but put multilateralism under threat. And such weaponization of sanctions also poses challenges in addressing our collective global problems.

Our Global Collective Problems

Collective Global Problems refer to issues and problems that the world faces together. These issues are prevalent and have repercussions for almost all countries. In the 21st century, Human Rights and Democracy have become such issues. Deteriorating human rights standards and global democratic backslide have emerged as new collective global issues for us.

The ongoing global recession, commodity shock, and soaring inflation have also emerged as new global problems as the world suffers from these. However, the economic and Human rights sanctions by the West further complicate the scenario. The motivation of ‘One Size fits All’ is creating confusion and hampering global cooperation. The ongoing energy crisis is the result of such motivation. However, multilateralism is the best path for solving collective problems. But the sanctions and rivalries are polarizing the world and posing a severe threat to multilateralism.

Sanctions as Weapon

Sanctions emerged in the interwar period as a tool for the great powers as they significantly contributed to global and bilateral economies. The early pioneers developed it as an alternative to brute force to coerce the opponent to end or avoid war. Early ‘Sanctionists’ believed it was an effective tool to avoid bloodshed. However, it was used during peacetime in the 1930s. According to Nicholas Mulder, the author of ‘The Economic Weapon: The Rise of Sanctions as a Tool of Modern War’, the use of sanctions by the allied powers further radicalized fascists at that time also. Mulder also thinks the current situation parallels the scenarios of then. Advanced globalization and financial inclusion have created a complex interdependency among the nations that rely on a uniform system to conduct their foreign economic exchange and are becoming skeptical about it. Such skepticism also reinforces economic nationalism. And the sanctions aimed at rivals affect billions of ordinary citizens worldwide.

The use of sanctions has increased since Donald Trump’s ascension. The sanctions motivated by national interests and counter-sanctions have further complicated it. Between 2016 and 2019, the USA under Trump Administration imposed sanctions that constitute 40% of the total sanctions worldwide. The reliance on sanctions has also transformed it into a weapon. Sanctions also have an important role in Biden’s foreign policy as he has formulated his policy centering on Democracy and Human Rights.

Effectiveness in Question

During the last few years, economic and human rights sanctions became important. But many of them were motivated by national interests. As a result, the use of sanctions handicapped the scope for greater intervention. For example, when the Rohingya exodus took place, the West merely relied upon individual sanctions against the Myanmar Generals. The West thought it would serve their commitment as they have interests in Myanmar. But it seems the West could have a more proactive role in the Rohingya crisis to solve the problem. Again, the Biden administration announced sanctions on RAB and its 7 officials in Bangladesh last year on the allegation of human rights violation. But it seems the allegations are very few compared to the violations that took place worldwide, especially by the US allies.

Biden’s latest sanction schemes reveal that these are built upon controlling the global economy. For instance, the Russian sanctions attempted to exclude Russia from global transaction mechanisms. Both China and Russia have also acknowledged it and have made an effort to create a parallel system to avoid it. The attempt to internationalize the Ruble and Yuan is one example of such a claim. Hence, the sanctions are only creating confusion and turmoil in global politics. As a result, the effectiveness is in question.

In most cases, the sanctions only isolated the nations and backfired. Global Sanction Database recorded 1100 public sanctions between 1950 and 2019. The database also identified that the most common objective of sanctions imposed between 2016 and 2019 are human rights and democracy. However, only 42% of sanctions were partially successful.

A Challenge

Sanctions in the last decade motivated by national interest failed to uphold the public good. Instead, it is further polarizing world politics. It also creates distrust about existing global economic mechanisms among the great powers. The economic sanctions against the rivals also widen the gap between the great powers. Great powers like Russia and China are forced to establish an alternative economy to counter it. Such actions and counter-actions are challenging the uniformity of the global economy also.

Again, multilateralism is facing a crisis due to growing distrust and polarization. The ongoing economic recession, post-pandemic challenges, and soaring inflation require a multilateral solution. But the distrust is weakening the spirit. So, sanctions and the use of the global economy also pose challenges to our collective global problems. Therefore, sanctions are doing a great disservice than service.

In conclusion, Sanctions should not be an instrument during peacetime. It should only be reserved for wartime to avoid using brute force. Weaponizing sanctions and unilateral ‘abuse’ of the global economy and its control during peacetime threaten our multilateralism. In the current global context, it is posing a severe threat to addressing existing global issues. As the world is passing a tough time, Great powers need to come together and find solutions as their decisions affect all countries.

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