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International Law

Responsibility to Protect and Political Will

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The very reason why responsibility to protect fails drastically in many circumstances is that the international community is plagued by the complete lack of political will. Alex Bellamy finds that “the international community’s actual record of preventing and halting the mass killing of civilians is staggeringly poor”.When the practical battle of sovereignty versus humanitarian intervention started the former UNSG Kofi Annan proposed a “forged unity” that resulted the norm of humanitarian intervention. (Bellamy, June 2006 )

The indeterminacy (sovereignty v intervention) somehow makes the responsibility to protect to fail in both practical and institutional terms. However, there is still hope that with the “compliance pull” the R2P can be newly emerged as it proved to be better solution than humanitarian intervention. It is worthy to note what Eric Heinze speaks on humanitarian intervention and he says “the transboundary use of military force for the purpose of protecting people whose government is egregiously abusing them, either directly, or by aiding and permitting extreme mistreatment”. (Heinze, 1 January 2010). Gareth Evan comments on Humanitarian Intervention as follows: “mistake of going to war when we should not, but also what can sometimes be the even bigger mistake of not going to war to protect our fellow human beings from catastrophe when we should”. (Sahnoun, November – December 2002 )

There are four core claims on the legality of the humanitarian intervention:

The plain meaning and language of UN Charter

UN Charter is being an “organic document” not answering the legal arguments

Viewing customary law and other normative practices as the legal basis of a state’s behavior

There is codified treaty law that define the rules for state behavior

Along with the four claims above, the question of morality is another issue. For example, the humanitarian intervention in Haiti would have been still justified without the OAS (Organization of the American States) sanctioning and the NATO’s intervention in Kosovo without Security Council mandate is “illegal but legitimate” but sanctioned for its “compelling moral purpose”.

When talking about Responsibility to Protect and it’s predecessor norm humanitarian intervention it is vital to remember that both are derived from Just War tradition “Quod est necessarium est licitum – ‘that which is necessary is legal’ in other words as quoted by the Prime Minister of East Timor “Some times war saves people”.  (Schrijver, 2000)

Sovereignty has a long history of colonial war and revolutions, and it is still promised with “self-determination” and “future free from outside interference” which is considered to be as just an “emotional attachment”. At this juncture it is worthy to note Gerath Evan’s view on sovereignty “Sovereignty thus hard won, and proudly enjoyed, is sovereignty not easily relinquished or compromised”

The following responses on NATO’s intervention in Kosovo would reflect the nation states’ take on “sovereignty”

Algerian President, and then President of the Organization of African Unity (OAU), Abdelaziz Bouteflika, in addressing the UN General Assembly in 1999, advocated the value of sovereignty as “our final defense against the rules of an unjust world”

Former Secretary of State and realist scholar, Henry Kissinger lambasted British Prime Minister Tony Blair after the intervention in Kosovo for the “abrupt abandonment of the concept of national sovereignty”

Nelsen Mandela in 2000, saw military action in Kosovo as: “such disregard for international conventions was more dangerous to world peace than anything that was currently happening in Africa

The basic problem is that the individual is protected by intervention whereas the state in protected by territorial sovereignty and non-intervention.

“the international community’s actual record of preventing and halting the mass killing of civilians is staggeringly poor”

The theoretical vacuum between non-intervention and moral responsibility to protect humanity at risk engulfs majority global crisis and thus Responsibility to Protect became the solution.

R2P can be metaphorically compared to a bridge that connects indeterminacy of intervention vs sovereignty. (Stahn, 2007 )

R2P and practical successes

In Kenya after the presidential elections in 2007, the violence outbroke with the killing of 1000 people and displacement of 250,000. Frances Deng, through the Special Advisor on the Prevention of Genocide (OSAPG) used R2P to charge political leaders who are inciting violence. As a result, the inflammatory speech and hate comments were banned and it reduced considerable amount of human sufferings.

Libya is another watermark example for R2P is where Kadaffi’s regime was thrown out not only by his death but also by successful international mobilization and application of humanitarian principles. At this moment it is worthy to note Jack Straw, as British Foreign Minister said: “if this new responsibility had been in place a decade ago, thousands in Srebrenica and Rwanda would have been saved”(Thakur, 2011)

R2P – Failure Stories

When declaring Responsibility to Protect through a UNSC resolution, it is extremely difficult to gain the consent or the support of all the nation states in unity especially the P5. In Resolution 1973 on Libya the most important international actors like India, Russia, China and Brazil chose to abstain rather than endorse the Resolution whereas the BRICS countries expressly stated their distrust in Responsibility to Protect.

The case of Darfur

When Darfur was in the need of humanitarian assistance, The R2P was explicitly declared by British Government, and the UNSC resolution condemning Khartoum. It was later realized by the international community that the key players of the international politics were unwilling to support humanitarian operations through providing necessary military troops. R2P does not expect consent from the targeted states and UNSC Resolution 1706 called “the consent for national unity” from international governments which was ended up as failure. Lee Feinstein articulates “If Darfur is the first ‘test case’ of the responsibility to protect there is no point in denying that the world has failed the entry exam”.

Although the Kenya sets an example of a successful R2P application, it was criticized that R2P used more as a “diplomatic tool than a catalyst for action”. Kenya’s act of dragging R2P into the territory without a clear-cut evidence of ethnic cleansing and only 700-800 confirmed deaths also questioned the threshold of the doctrine of responsibility of protect.

R2P failed to protect about 150,000 of people who were at a huge humanitarian risk in Sri Lanka at the final phases of war when the Government of Sri Lanka turned its defensive humanitarian operation into offensive. The intervention of international community was widely expected at the final moments of war and Crawshaw from Human Rights watch criticized it as points “there was a failure to address the Sri Lankan issue and that I think can be said to be indicative of where the gap between the words and reality is”.

In Mali, despite of three explicit UN Resolutions and the support of ECOWAS, the unilateral intervention of France was needed to proceed international assistance. As per the UN Commission on Inquiry, the government of Guinea committed crimes against humanity, yet the language of R2P was nowhere to be seen.  In the case of DRC (Democratic Republic of Congo), the UNSC failed to authorize intervention under the guise of Responsibility to Protect. Although troop expansions, mandate strengthening and greater assistance were given in DRC, the R2P had no practical impact.

The issue of Israel’s assault on Gaza was raised at the UNGA in 2009 and the citizens of Gaza were in need of R2P Solution. The failure to intervene reflected of a “selective application” and “double standards”.

Apart from the failed intervening moments on humanitarian grounds, the misappropriation created more confusions which leads back to the indeterminacy of intervention versus sovereignty. French intervention Myanmar upon the post-Nargis Cyclone rebuilding, Russia’s misinterpretation of R2P language to annex South Ossetia in which Russian Foreign Minister Sergei Lavrov stated that the “proximity of the conflict makes it absolutely unavoidable to us to exercise responsibility to protect”, and Tony Blair’s use of R2P to invade Iraqin 2003 are some of the examples where the prism of R2P was misused. These incidents not only questioned the threshold of the doctrine but also invalidated the manifestation of the four mass crimes covered by the R2P.

Political Will

The “age of strict national sovereignty” started to change slowly during 1990’s after some acts such as UN Resolution to authorize no fly-zone over Iraqi-Kurdistan under the justification of “right to intervene” and legitimatization of entering into the crisis zones such as Rwanda and Darfur under Genocide Convention. The establishment of ICTY and ICTR and evolving realm of human rights and human security always reconstructed the practices of sovereignty time to time. The slogans such as “its people’s sovereignty rather than sovereign’s sovereignty”, “sovereignty is also a responsibility” have started to articulate the international law. Thus, in the present context sovereignty is not a challenging ground to R2P as it is expected to be. The foremost and challenging barrier to responsibility to protect is the lack of moral and ethical will.  This is explained by Alex Bellamy, the reason that humanitarian intervention was not successful pre-R2P was “the basic political fact that no state wanted to pay the price associated with saving strangers”. With absence of strict sovereignty concept, the scholars of international law acknowledged the need of a strong “political will” to back it up as Lee Feinstein observed in the World Summit. Aidan Hehir explains that “political will is the variable upon which the entire utility of R2P is now predicated”. The General Assembly 2009 recognized the need of “political will at the right time” and the co-chair of the ICISS report, Gerath Evans noted that “without the exercise of political will, by the relevant policy makers at the relevant time, almost none of the things for which this book has argues will actually happen”.

The failure of the doctrine during Rwandan Genocide was, according to Thakur, due to lack of “civic courage and collective consciences, UN inquiry pointed out “lack of resources and political commitment”, andICISS finally concluded as “a failure of international will”.  Taking East Timor scenario into consideration, a senior diplomat and scholar in Jakarta described the unwillingness to intervene as “Indonesia matters and East Timor doesn’t and Aida Hehir commented “it was clear that no intervention would take place without Indonesia’s consent”. The Srebrenica massacre is another example where the Report of the Secretary-General 1999 commented that “the cardinal lesson of Srebrenica is that a deliberate and systematic attempt to terrorize, expel or murder an entire people must be met decisively….with the (requisite) political will”. The Democratic Republic of Congo, Somalia, Sri Lanka and North Korea are some of other examples where the international community lost consciences to intervene.  Bernanrd- Henri Levy , an author in the Public Intellectuality commented of the fact that French Government was successful in the gist of R2P in Darfur, yet failed in other scenarios due to a single issue of “ the political will of one man, the President of the French Republic, Nicolas Sarkozy” also raised a question “If Libya, then why not Bahrain, Yemen, or Syria?”.  Leon Panetta, the Defense Secretary of United States viewed the failure of American Administration to intervene into Syria as “we learned a lot about how to confront al-Qaeda and its affiliated as a result of operation in Pakistan and Afghanistan…. we know how to do this”.

Responsibility to Protect: Weaknesses and Recommendations 

Would R2P work as a regional protection?

Responsibility to protect fails mostly in the initial stage of its implementation by two reasons: 1. The United Nations Security Council fails to get the consent of the Permanent Members, 2. It may fail in the  national level as the governments use the concept to achieve it’s national interests which would further lead to a development of a “neo-colonial state” that uses power to oppress citizens. (O’Donnell, 2014)Since R2P was formed on the basis of United Nations values and United Nations Charter authorizes the validity of regional arrangements in resolving conflicts, the new suggestion merged of implementing Responsibility to Protect as a regional arrangement. While having R2P implemented by Regional Organizations, the implementation would limit itself within its purposes and the there would be less infringement of state sovereignty. (Shen, 12th January 2000)

All the regional arrangements are agreed upon a certain Charter (a treaty or an agreement) that binds the member states and the rights to intervene or the theory of responsibility to protect can be included in such binding provision. In those circumstances, the ROs can intervene with the help of member states using either permanent troops and troops called upon member states. While using Responsibility to Protect through regional arrangements would stop the intervention of powerful states with geopolitical interests, spill over effect on developing and third world countries, serve with the bona fide intervention of protecting civilians from human rights violations. (Naomi Kikoler, September 2009 )Regional Organizations maintain strong economic, cultural, historic and political ties with the violating state and member states which would create a quicker response and most of the armed conflicts rise around regional level more than national and international level. It is also vital to note that incorporating R2P with Regional Organizations is just a logical choice that needs legal attention to be executed since some of the regional organizations are controlled by the hegemonic powerful states within it especially when the RO is a continent spanning (Example: African Union). (Rosenperg, 2009 )

UN Charter’s Article 2 strict prohibition against use of force can be made favorable to responsibility to protect applying two arguments: a sovereign state can limit its sovereignty by entering into multi-lateral treaties and the interpretation of the language of the UN Charter itself. When it comes to the sovereignty issue foremost requirement to overcome the national sovereignty problem is that the R2P must be squared with UN Charter’s recognition for the “sovereign equality of all its Members” and UN Charter’s prohibition against “the threat or use of force against the territorial integrity or political independence of any state”. (Orford, February 2011 )The dilemma fails to understand how a state can fundamentally establish its own right to limit its sovereignty through ratifying treaties and other international obligations. The UN Charter can be taken as a simple example and further the R2P is a pre-requisite for a statehood as per the Montevideo Convention expects nation-states to have the capacity to enter into relations with other states to earn legal recognition in the international law. The ICISS reports points out “external sovereignty” (respecting other states) is only applicable for the states which fulfill the obligations come under the “internal sovereignty” (the primary obligation includes protection of civilians within the territory). According to Crossly, the concept of “equal sovereignty” in international customary law for the states who misuse their “internal sovereignty”. (Henrikson, 1996)

The Article 2 of the UN Charter is ambiguous, not only restricts the application of responsibility to protect concept but also challenges the practicability of Regional Organizations utilizing this international law norm.  Article 53 of the Charter emphasizes that Regional Organizations are not authorized to “enforce actions” without the UNSC Resolution. Article 24 is vested with promoting international peace and security and thus Article 54 expects the ROs to support for peace and security arrangements within the regional level. (Zifcak, 2011) Further, ROs are given secondary authority to deal with peace and security conflicts within the region, next to International Organizations and International Treaty Law. This freedom can be misused and the most practical example is NATO’s intervention in Kosovo which was criticized by the international society as it lacked humanitarian purpose. Therefore, it is important the ROs’ founding Charter should include the clauses of R2P which are justified validly by Member States before incorporating. (Cuéllar, 2004)

The most recent practical example of how Regional Organizations can be effectively utilized to tackle down the internal conflict of a region under the concept of Responsibility to Protect. When Boko Haram Insurgency started threatening the political integrity of Nigeria and the Member States, the African Union initiated multiple actions against terrorist including creation of “Multinational Joint Task Force”, without any approval from UN Security Council.  Instead of waiting for Security Council’s approval, having known to the background of the Nigerian integrity and the situations of the neighbor states, African Union used Responsibility to Protect as an effective counter-terrorism strategy to defeat Boko Haram. (Brechenmacher, 2019 May )

Responsibility to Protect is an obligation of internationality based on humanitarian concern of preventing mass atrocity crimes and human rights violations. Adapting to some theoretical and practical challenges can not only strengthen the implementation of the norm but also fill the already existing loopholes found in the application of the norm.  The changes include incorporating of Regional Organizations as players of intervention overlapping the R2P concept, making structural changes in the United Nations Security Council methodology and stressing out the fact the R2P should carry a legally binding role in the international customary law although it is not passed through a legally binding treaty.

MaathumaiParanthaman is a UN Volunteer attached to Office of the High Commissioner of Human Rights (OHCHR). She currently works as a Program Support Officer at Human Rights Commission of Sri Lanka. She holds LL.B (Hons) from University of Wolverhampton, UK and a Master in Human Rights at University of Colombo. Her research focuses on human rights, conflict and peace studies and international law.

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International Law

Ensuring Sustainable Development and Peace: Who in the UN is Against it?

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March 2021 marks a year since the World Health Organization announced that the spread of the novel coronavirus COVID-19 had turned into a pandemic. Despite the highly negative socioeconomic consequences it had for the international community, the U.S.-led countries of the North did not alter their course to prevent the UN General Assembly from adopting resolutions (14 in total) aimed to ensure sustainable development and stable peace and to counter the use of unilateral financial measures, which remain intact and intended to curtail the international community’s efforts to guarantee the right to development and a decent life. Since resolutions are adopted by majority vote of all the UN member states (193), the efforts of the Global North prove futile, anyway. The article explores the stances of states when voting on the resolutions of the UN General Assembly pertinent to the issues discussed in this piece.

Promoting Sustainable Development and Stable Peace

In the context of global economic inequality, the North–South dichotomy is a conflict of interests between industrially developed and developing nations. The conflict has to do with the expanding gap in socioeconomic and cultural development between the “rich” countries of the North and the “poor” countries of the South. According to the UN, the number of people living in extreme poverty shrank from 36% in 1990 to 10% in 2015. However, owing to the coronavirus pandemic, the pace of the changes is slowing down and the world is running the risk of nullifying the decades-worth of progress in combating poverty.

The gap in capital distribution, income and quality of life brings about socioeconomic and political upheavals worldwide, which is a challenge to security and to the stability of the global economy.

Since the early 21st century, the international community has made serious efforts to counter the North–South dichotomy and eliminate the consequences of global inequality.

For instance, on September 8, 2000, the Millennium Summit adopted a Declaration that included a roadmap up to 2015. The document contained eight goals, 18 objectives, and 48 indicators for measuring the achievement of the so-called Millennium Development Goals (MDGs).

The UN Sustainable Development Summit of September 25–27, 2015 unanimously approved the Sustainable Development Agenda. The document‒called “Transforming our World: The 2030 Sustainable Development Agenda” and unofficially dubbed “Sustainable Development Goals”, or the SDGs‒contains a set of goals (17 in total) for international cooperation in global development. Part of the implementation of the Global Agenda, it went into effect on January 1, 2016.

However, from 2016 onwards, the United States, the European Union and their satellites, including Ukraine, started voting against the adoption of the resolution “Sustainable Development: Implementation of Agenda 21, the Programme for the Further Implementation of Agenda 21 and the outcomes of the World Summit on Sustainable Development and of the United Nations Conference on Sustainable Development”—something previously adopted without voting. In 2019, most opponents, with the exception of the United States and Israel, “abstained.”

The vote on the fundamental resolution “The Right to Development” showed a certain split among the countries of the North. However, the backbone of the “rich” Western European nations and the United States (as well as Ukraine, which sided with them) invariably cast their vote “against” the motion. Voting on such resolutions as “Implementation of the Recommendations Contained in the Report of the Secretary-General on the Causes of Conflict and the Promotion of Durable Peace and Sustainable Development in Africa” and “New Partnership for Africa’s Development: Progress in Implementation and International Support” showed differences in opinions as well.

The European Union member states and Ukraine support the United States in voting against the resolution “Promotion of Peace as a Vital Requirement for the Full Enjoyment of All Human Rights by All,” which, among other things, stresses that the ever-increasing gap between the developed and the developing worlds poses a major threat to global prosperity, peace and security, and stability. A similar situation happened with the resolution “Eradicating Rural Poverty to Implement the 2030 Agenda for Sustainable Development.”

We should also note that the U.S. stance under the Trump Administration changed radically‒and this position was supported by Israel only, as well as by Libya in one instance‒when voting on the following UN General Assembly resolutions:

  1. “The Right to Food” (in 2009–2016, the resolution was adopted without voting; the United States and Israel have voted against it since 2017).
  2. “Global Health and Foreign Policy: Strengthening Health System Resilience through Affordable Health Care for All” (in 2008–2017, the resolution was adopted without voting; in 2018, the United States and Libya voted against it; in 2019, it was adopted without voting; in 2020, the United States alone voted against it).
  3. “International Financial System and Development” (in 2000–2016, the resolution was adopted without voting; in 2017, the United States and Israel voted against it; in 2018–2019, the United States alone voted against it).
  4. “International Trade and Development” (in 2011–2016, the resolution was adopted without voting; in 2017 and 2020, the United States and Israel voted against it; in 2018 and 2019, the United States alone voted against it).
  5. “Commodities” (in 2004–2015, the resolution was adopted without voting every two years; in 2017, the United States and Israel voted against it; in 2019, the United States alone voted against it).

Use of Unilateral Financial and Economic Measures

Global economic inequality along the provisional “North–South” confrontation axis was particularly evident during the pandemic, when the effect of sanctions acquired the scale of an emergency (Venezuela, Iran).

In order to help the international community overcome the consequences of the coronavirus, UN Secretary General Antonio Guterres addressed the heads of the G20 member states at the very outset of the pandemic (March 25, 2020), calling for them to lift their sanctions so that states would have access to food, essential goods and medical aid in combating COVID-19. Michelle Bachelet, UN High Commissioner for Human Rights, called for easing sanctions against states combating COVID-19. Restrictive measures can hinder the effective response to the pandemic, which will inevitably have a negative impact on other states. The United Nations and the international community have placed overcoming the pandemic and its consequences at the top of their agenda.

At an extraordinary G20 Summit on March 26, 2020, Russia’s President Vladimir Putin proposed introducing green corridors free from trade wars and sanctions and open primarily for essential goods, food, medicines, personal protection equipment needed precisely to combat the pandemic. On the same day, the eight states currently under restrictive measures, specifically Russia, Venezuela, Iran, China, North Korea, Cuba, Nicaragua and Syria, sent a letter to Antonio Guterres on the negative impact the sanctions were having on the human rights agenda and economic growth.

On April 3, 2020, Alena Douhan, UN Special Rapporteur on the Negative Impact of the Unilateral Coercive Measures on the Enjoyment of Human Rights, called for lifting or at least suspending sanctions amid the COVID-19 pandemic. In her opinion, unilateral measures adopted in circumvention of the UN Security Council affect economic, social and civil rights and, most importantly, the right to development. The pandemic has obviously resulted in unemployment, bankruptcy of some economic sectors and falling incomes, thus exacerbating the negative effect of unilateral economic restrictions. The sanctions policy hinders the recovery of markets and the global economy, which has a knock-on effect on the development of emerging markets.

Despite calls from the United Nations, the countries of the North do not deem it necessary to change their sanctions policies. In December 2020, the United States, the European Union and the few states that joined their ranks, including Ukraine, voted against the Human Rights and Unilateral Coercive Measures resolution that calls, among other things, for ceasing the use of essential goods as a tool of political coercion, especially in the context of global healthcare problems, such as the COVID-19 pandemic.

At the same time, the United States and the European Union typically vote differently on the resolution “Unilateral Economic Measures as a Means of Political and Economic Coercion against Developing Countries” since 2001, the EU countries have abstained from voting, while the United States and Israel have voted against it. However, when voting on the resolution “Toward a New International Economic Order” (a supplement to the existing resolution on the “International Financial System and Development”), where the General Assembly calls for an international order based on the principles of “sovereign equality, interdependence, common interest, cooperation, and solidarity among all States” and also recommends that states “refrain from promulgating and applying any unilateral economic, financial or trade measures,” the EU and their satellite states, including Ukraine, support the United States and vote against such motions.

Russia and the Sustainable Development Goals

Russia supports the adoption of the above-listed resolutions of the UN General Assembly and actively promotes development goals, both by incorporating them in its national projects and strategic development planning and by giving other countries access to financial resources. Over the last two years, Russia has provided humanitarian aid to 21 states in Latin America, Southeast Asia and Africa, over USD 25 million worth in total. Interest in providing international aid has only increased amid the pandemic: Russia provided anti-coronavirus aid in the form of medical equipment and products, personal protection equipment and medical ventilators to more than 20 states.

On March 17, 2020, the Government of the Russian Federation approved the Priority Action Plan for Ensuring Sustainable Economic Development in Conditions Exacerbated by the Spread of COVID-19, which is aimed at achieving the SDGs nationally. The anti-crisis plan provides for the following measures: provision of essential goods; support for economic sectors in the risk zone; support for small- and medium-sized enterprises; and general system-wide measures (establishing a guarantee fund for restructuring loans to companies affected by the worsening situation as a result of the spread of COVID‑19; compiling a list of backbone enterprises in the Russian economy; and operational monitoring of the financial and economic state of backbone organizations).

Currently, the SDGs in Russia are integrated into national projects and other strategic and program documents, such as the Food Security Doctrine of the Russian Federation, as well as state programmes, such as “Development of Education,” “Accessible Environment,” “Promoting Employment” and “Comprehensive Development of Rural Territories.” In 2020, twelve national projects as well as the Comprehensive Plan for Modernization and Expansion of the Trunk Infrastructure cover 107 out of 169 objectives set forth by the UN.

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China and India must stop rivalry and begin to reform the Third World

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The First World has been anticipating with a great enthusiasm to see geopolitical tensions between China and India. On the one hand, the United States has been wittingly trying to control the Indian Ocean. On the other, the diplomatic and trade ties between China and India are lopsided. Boycotting Chinese goods by India certainly enlarged the tensions not only between these Asian powers but also among the Third World states and most importantly in South Asia region. The People’s Republic of China, which is being considered as superpower of Asia must stop diplomatic rivalry with its neighbor and decades long diplomatic partner, India. The Republic of India, which is also being considered as one of the largest economies outside the west, has to stop its rivalry with China to safeguard non-western economic interests. As world observing, there has been frontier dispute going on between these two non-western largest political and economic powers for a last couple of years.

According to customary International law, as far as any territorial dispute is concerned, every state has the right to protect its national borders without any external legal oppression. In this regard, as far as China is concerned, it has its primary responsibility to protect its national borders. On the other, India has also unequivocal responsibility to protect its national borders under the Law of Nations. In these adverse circumstances, the leader of the Third World ( to some extent, I refer this word as leader of the third world, since China has a tremendous capability to lead the developing world ) and as well as the fastest growing economy of the Third World must unite and strive for three essential goals. I would clearly argue about them here. Before that, let me get into the economic background of these two nations.

Since the end of the Second World War, these two former British colonies have strived tremendously for becoming economically self-dependent nations. But in those attempts, China has accelerated its industrialization in the period of Den Xiaoping and turned as a manufacturing hub of the world, while India has only become as largest importer of goods, however it got reached to the peak stage of International economic order that could slightly influence International legal order. The main contention of this piece lies in examining why India and China should stand together as a common force. Let me now turn towards the main argument of this writing. The leader of the Third World China has to strive to become success in three essential goals with the collaboration of India.  The first essential goal is to mobilize non-western nations to fight for decolonization of west made International law. The second essential goal is to fight for new global economic order, which can make Third World rich. And the third one that what China must do is to promote industrial growth in Third World nations.

Let’s debate one by one. In the past history, the rest of the world outside the west had been arguably ruled by the European powers. There were plenty of battles, as we all know taking place for safeguarding their sovereignty. It must be admitted that the International rules, whatever were substantially made by the colonial powers, were framed to suppress non-western people. To prove it, the Third World International law scholarship has accepted that International law is a product of European civilization, which is in this 21st century being used as a legal instrument by the United States to expand west’s global dominance. Prof Antony Anghie, the vital voice of the Third World Approaches to International law, clearly mentions in his great writing “Imperialism, Sovereignty and the Making of International law” that “International law is an absolute construct of Western colonial powers with imperial ambitions”. This interpretation of Prof Anghie, should deeply be understood by each and every student of International law with legal intellectual concern. We should never like to hate the west and blame the First World and its leader the United States. But, Third Worldism has to rethink its history unavoidably to generate new form of International, political and economic policies for its self growth. Most important thing among all the concerns is that China which I refer as leader of the Third World, should work to increase the political and legal ability of the Third World countries at International platform that is the Security Council. Third World countries absolutely do not have participation in the Security Council, which is considered as a top body of the world where the final decisions on global conflicts are made. So in this context, China and India must initiate the political and legal campaign of the Third World to reform the Security Council. This should become an agenda of the Asian African countries too.

We are turning towards the second essential goal that is the new global economic order. The whole word is currently living in the age of Globalization. To say in simple terms, the Globalization is nothing but the global capitalism, which affects the daily life of an ordinary citizen of the world. However, the Globalization has its roots in International Economic Order adopted in 1974 by the United Nations General Assembly. As the rest of the world outside the West knows that, the developing countries were intended for economic decolonization and as well as to decrease the dependency on industrially developed nations. The process of economic decolonization of the Third World is linked with economic policies of the Bretton Woods Institutions, since most of the power lies with the World Bank and International Monetary Fund. The New International Economic Order which is intended to decolonize developing economies, being violated by the developed nations and International financial institutions. The founding principles of the G-77 countries have not been reached through United Nations General Assembly adopted International Economic Order. In above mentioned facts and factors, the Globalization has been playing a primary role in influencing and shaping Global South economy. The western richness is absolutely on the rise due to existence of International trade and economic norms that are maintained by the system of Globalization. In this context, the leader of the Third World China and the fastest growing economy of the Third World India, must initiate a campaign for a new Global Economic Order which would eradicate poverty and make the Third World rich.

Now debating regarding third essential goal that is to develop industrial growth in Third World countries. The modern economic history begins with the Industrial Revolution which had taken place in Europe. It had a destructive effect on Third World domestic productions. But in the 21st century it is fully occupied by the People’s Republic of China. One of the major developmental obstacles facing Third World countries is the industrial growth. The vast gap that exists between the affluent First World countries and the impoverished Third World countries is indirectly dictating these poor countries to obey the west dominated global economic, political and legal order In the TWAIL scholarship, the ideas propounded by scholars like RP Anand, Prof Bupendra Chimni have affirmed that modern International law was an Eurocentric creation determined to uphold the economic hegemony of the West. In the backdrop of such a historical anomaly, both India and China should alter their parochial stances in order to counter the Western hegemony in the International economic sphere. In this context, these two countries China and India have to review their foreign policy to cooperate with other Asian and African countries in terms of developing domestic industrial growth. There is a need for Third World countries to depend on industrially developed states since these countries have no all sorts of domestic industries. But of course I would agree that the interdependence of countries with each other is inevitable in this era of Globalization. In spite of that, No country should be forced to make her foreign policy favor to a particular state which is against the freedom of a state under International law. In these circumstances, the Third World countries should be encouraged profoundly towards industrial growth. Most importantly, the leader of the Third World China has to prefer it as a principal agenda in its foreign policy. China’s rivalry with India splits up India from this sort of International economic, political and legal conceptions.   

Concluding Remarks

As I have mentioned above, economic needs of a country decide the way of a country where to go in International arena. To say in simple terms, economics dictates politics while politics dictates law. So, to achieve new International legal order, should develop economic capability of the Third World. As I have said before, the leader of the Third World China and one of the largest economies of the world India both must put an end to frontier disputes and initiate a campaign for three essential goals that I have already mentioned. The first and primary essential goal is to mobilize non-western nations to fight for decolonization of west made International law. China and India both alone would never achieve this great achievement. All non-western nations are required to be mobilized to work for decolonization through reformation of the Security Council. The second primary agenda is to fight for new Global Economic Order, which protects the natural rights of states like sovereignty over all their natural resources. The final and concluding agenda is to encourage industrial growth in Third World states, which would decrease the dependency of states with each other.

Finally I reached to the end and I would conclude by stating a great remark that International law is never separated from International politics while International politics is never separated from the global economic policies which are framed and monitored by the Bretton Woods Institutions.

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Chagos: An Achievement in Self-Determination with a Treacherous Path to Decolonization

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The overwhelming global support for the United Nation’s 2019 Chagos International Court of Justice (I.C.J.)Opinion and General Assembly Resolution was a remarkable success for modern-day decolonization. However, real-world implementation of the decisions will be incredibly complicated, perhaps even to the extent that full decolonization of Chagos becomes impracticable and/or illegal. Resolving the U.K./Mauritius legal sovereignty dispute over the Chagos archipelago was only the tip of the iceberg.

Implementation of decolonization will require at least five critical steps. First, the Chagossians still require legal and practical support to resettle the islands. Second, Mauritius needs to come to an agreement with the U.S. regarding the future of the Diego Garcia military base. Third, that agreement and Mauritian state responsibility for the base will need to address ongoing violations of numerous anti-nuclear, anti-arms, and human rights treaties. Fourth, Mauritius will need to ensure a military presence adequate to maintain a deterrent effect against nearby aggressors, which may require keeping some weapons on-site, and in which case Mauritius will need to seek amendments to or withdrawals from some of its current treaties.  Finally, and perhaps most critically, Mauritius needs to address global climate change impacts, because if it does not, in a matter of decades the islands will be uninhabitable or even fully submerged, leaving the previous four points irrelevant.

Background

The Chagos islands are an African archipelago that cover 1,950 square kilometers, with Diego Garcia as its largest island.  Colonial occupation of Chagos by the U.K. started in 1814 when it was administered as a dependency of Mauritius (another British colony).

Sixty years ago, the United Nations passed the Declaration on Decolonization, committing to the swift end of colonization and declaring that all people have the right to self-determination.  In 1946, Mauritius was listed as a non-self-governing territory under Article 73(e) of the Charter of the United Nations.

The General Assembly(G.A.) passed Resolution2066 (XX) in 1965 calling for the U.K. to immediately and fully decolonize Mauritius. In September 1965, the U.K. and Mauritian governments entered into an agreement allowing for the detachment of Chagos before the remainder of Mauritius gained independence. Mauritius was forced into the agreement despite its protests, with U.K. Prime Minister Harold Wilson threatening the Mauritian Prime Minister: “[I]f you don’t agree to what I am proposing [about Chagos] then forget about [your] independence.”Following the coerced agreement, the U.K. created the British Indian Ocean Territory (B.I.O.T.),which included Chagos and preserved it as a British colony.

In 1966, the U.S. and the U.K. concluded an international agreement allowing the U.S.to use Diego Garcia as a military base. Per the U.S.’ request, the agreement provided for the “resettling [of] any inhabitants,” who were the Chagossians, thousands of descendants of people forcibly transported from Mozambique and Madagascar in the early 1800s and enslaved to work on the islands’ coconut plantations. The U.K. forcibly removedthe population, though the displaced Chagossians continue to protest, and the U.K. later apologized for the “shameful and wrong[ful] forcible removal.”

In 1967, the G.A. passed Resolution 2357 (XXII) expressing “[deep] concern[s]” about “disruption of the territorial integrity” and the “creation … of military bases” on several of the non-self-governing territories, including Mauritius (and its dependency, Chagos). The resolution reiterated that these actions are incompatible with the purposes and principles of decolonization.

In June 2017,theG.A.requested an Advisory Opinion from the I.C.J. regarding the sovereignty of Chagos. The request asked two questions.  First, was the decolonization of Mauritius completed when it gained independence in 1968, after the excision of the Chagos archipelago? And second, if not, what legal consequences flow from the U.K.’s continued administration of the archipelago?

The I.C.J. judges relied almost exclusively on customary international law in their opinion and their opinion was the first time the Court recognized the rights to self-determination and territorial integrity under customary international law.  The I.C.J. found that state practice and opinio juris requirements were met in 1960, and thus the new customary international law crystallized that year making the dismemberment of Chagos from Mauritius a violation of international law. The court reiterated the same concerns noted in the G.A.’s 1967 resolution.

Then, in May2019, the G.A. adopted Resolution 73/295 which incorporated the Chagos Advisory Opinion and took steps to effectuate it. Only six states voted against it. The resolution requests that the U.N. and other international organizations support the decolonization of Mauritius and prohibit aiding any claim of sovereignty by the U.K. over the B.I.O.T.

Next, Mauritius took a separate maritime dispute about overlapping economic zones to the International Tribunal for the Law of the Sea (ITLOS). Mauritius’ neighbor, the Maldives, refused to negotiate with Mauritius about the dispute, citing an “ongoing” sovereignty dispute with the U.K. even after the U.N. opinion and resolution.

In January 2021, ITLOS, under the authority of the United Nations Convention on the Law of the Sea (UNCLOS), issued a preliminary decision on the economic zone dispute, that the case could proceed because the I.C.J. Opinion had “legal effect and clear implications for the legal status of the Chagos Archipelago,” and was “authoritative.” The tribunal found Opinions do have legal effect in situations like that of the Chagos sovereignty dispute.

Next, Mauritius is lobbying the Indian Ocean Tuna Commission (I.O.T.C.).  Following the Chagos Opinion, Mauritius requested to expel the U.K. from the I.O.T.C., as membership is only for states with coastlines along the Indian Ocean Region (I.O.R.). The ITLOS decision strengthened the Mauritian case with the I.O.T.C. because tribunal was established under the same convention as the commission, and the U.K. is also a member state to that convention. One would think the I.O.T.C would approve Mauritius’ request, however because diplomatic relations with a global superpower are at stake, it is challenging to predict how the Commission will proceed.

Obstacles to Effective Implementation

The U.K. Needs to Accept the Legal Decisions.

The U.K. and U.S. responses were standard for any imperial powers: they rejected the nearly unanimous U.N. resolution, committed to maintain the status quo of exploitation and imperialism, made threats against those who questioned their authority, and boasted their superior military power as the determining factor in territorial possession. The U.K. historically said it will hand Chagos over to Mauritius when it is “no longer needed for defense purposes, ”but it has become clear the U.K. does not see that situation occurring anytime soon.

Regardless, the global community nearly unanimously agreed that the U.K. is well overdue to decolonize Chagos. This is now reflected in binding international law. However, the U.K.’s stubbornness is merely one of several problems that Mauritius faces in the decolonization of Chagos.

Chagossians Resettlement and Reparations.

Once the U.K. finally concedes, the real-world implementation of decolonization will be extremely complicated. First, there is the question of the fate of the Chagossians. The Chagossians have expressed concerns that recent developments will not actually allow for resettlement. The Chagos Opinion and Resolution said nothing of specific resettlement plans. The Chagossians who went to the I.C.J. to view the proceedings were even denied entry to the Court. Further, Mauritius’ claim to the Chagos archipelago was based on its own interests, not the Chagossians. Mauritius’ legal achievement increased the size of the state dramatically, including new ownership of the largest undamaged coral reef in the world as well as a sea-floor rich in minerals. The Chagossian people do seem to be an afterthought in these conversations, with the primary interest in the U.K./Mauritius dispute being the land and economic zone.

The Fate of Diego Garcia and its Nuclear Weapons.

In 2020, Mauritius offered the U.S. a 99-year lease of Diego Garcia with resettled Chagossians kept at least 100 miles away from the base. However, the U.S. declined. In 2016, the 50-year period covered by the U.K. and U.S. in the 1966 Agreement came to an end but was extended for a period of an additional twenty years until 2036.

If the circumstances of the proposed Mauritian/U.S. lease sound oddly familiar, it should, as the U.S. has leased the 45 square mile Guantánamo Bay military base since 1898, with Cuba retaining ultimate sovereignty. Cubans are not allowed on the base, and the Castro government declared the U.S. presence an “illegal occupation” of its territory. The U.S.’ experience with Guantánamo Bay has been very problematic and may dissuade the U.S. from attempting to replicate the situation in Africa, especially considering the billions of dollars the U.S. has already invested in Diego Garcia.

Following the U.N. decisions, Mauritius is now in the position to decide whether to allow the continued use of Diego Garcia as a military base, and if so, to charge the U.S. for use. Hosting the base would allow Mauritius to increase its military strength, limit its dependence on India, and avoid the complexity of trying to evict the U.S. – all of which likely factored into Mauritius’ decision to allow the U.S. to remain.

Even if the U.S. agrees to sign a new lease with Mauritius, Mauritius will be faced with additional legal complexities regarding illegal arms and violations of human rights. The U.S. stores weapons in their ships anchored in the huge 125 square kilometer lagoon, including: anti-personnel landmines, cluster bombs, nuclear-tipped ballistic missiles, and a large quantity of nuclear materials, vehicles, and weapons. The U.S. and U.K. claimed that storing the weapons on U.S. ships gives the weapons “state immunity,” a unilateral interpretation contested by the International Committee for the Red Cross. This leaves Diego Garcia a “prime arms control loophole,” with its legitimacy only supported by the muscle of the superpowers who currently occupy it, not the law.

Continuing to lease Diego Garcia to the U.S. under current conditions would violate Mauritius’ obligations under the African Nuclear-Weapon-Free Zone (“Pelindaba”) Treaty. Under the treaty’s terms, Mauritius cannot allow the stationing of any nuclear weapons in its territory. It would also conflict with the General Assembly’s 1971Resolution2832 (XXVI), stating that the I.O.R. should be a “zone of peace” with no military bases or weapons.

Further, Mauritius may face human rights charges if the U.S. continues to use Diego Garcia asa “black site” for interrogations, detentions, and torture. The B.I.O.T. is referred to as a “human rights black hole” as the U.K. government refused to extend numerous human rights agreements to the territory. Human rights investigators and journalists have been barred from visiting the island despite the C.I.A.’s denial of torture allegations.

Security Risks in the Indian Ocean Region

During U.N. debate, U.K. fiercely argued only it can ensure security in the I.O.R. Mauritius’ attorney on Chagos summarized the U.K. argument in saying, “much of the General Assembly listened [to the U.K.’s arguments] in rapt embarrassment, unwilling to buy arguments of a kind you might find in a 1930s textbook on colonialism and diplomatic practice.”However, it is not that simple. While the U.K. might not be the only power able to ensure the security of the I.O.R., security risks to the area do need to be addressed and monitored. Freedom of navigation in the I.O.R. is at risk with any de-stabilization of the area. Other states with Indian Ocean coasts are supportive of the continuing presence of the U.S. base, desiring to keep Chinese naval power at bay. Despite the U.S.’ presence on Diego Garcia conjuring up images of a nuclearized Rambo sequel, it does apparently serve important values in the current political landscape.

The U.S. said a primary objective for Diego Garcia is to maintain the power balance in the I.O.R., enforced by the presence of naval units which “preserve necessary deterrence.”Indeed, it’s been often said, “whoever controls the Indian Ocean controls Asia. The ocean is the key to the seven seas.”The I.O.R. also faces numerous ongoing maritime security threats, including piracy, armed robbery, human smuggling, drug smuggling, illegal fishing, and terrorism.

China also has nuclear weapons, as one of the five states allowed to maintain them under the Non-Proliferation Treaty. However, the threats from China are even more complex, with their “String of Pearls” militarization of the I.O.R., concerning use of nuclear submarines and drones in the I.O.R., and aggressive actions in the nearby China Seas.

This leaves Mauritius in a difficult position. If Mauritius tries to expel the U.S. completely from Diego Garcia, it could wreak havoc on the stability and security of the I.O.R., impacting nearby countries’ maritime rights. However, if Mauritius allows the U.S. to continue administering the military base, Mauritius will need to make some tough decisions regarding the U.S.’ nuclear weapons and materials stored in the harbor. One option is to persuade the U.S. to remove the nukes voluntarily. A second option is to lobby the African states to amend the Pelindaba treaty.  The final option is that Mauritius can withdraw from the Pelindaba treaty. If Mauritius does persuade the U.S. to remove all nuclear materials from the Indian Ocean, the majority of the assumed deterrence power of the base is gone.  That new gap may allow for China, India, and other power-hungry states to expand their footholds and encroach further into the I.O.R.  Mauritius would need to prepare for this as a possibility. 

The removal of cluster-bombs and anti-personnel landmines from Diego Garcia would not create as significant of an impact to security in the region, however it would still require Mauritius to persuade the U.S. to do so. We all know that telling the U.S. to do something it does not want to do rarely goes well. Further, the same diplomacy obstacle will be faced in ensuring Diego Garcia is not used for future torture and other human rights violations.

Mauritius Needs a Plan to adapt to Global Climate Change.

All of this will be for nothing though, if Mauritius does not create a plan and secure resourcing to protect Chagos from the effects of global climate change. Scientists expect Chagos, along with other low-altitude islands in the Indian Ocean, to experience the most severe sea level rise.

The entirety of Diego Garcia is at risk from the devastating effects of global climate change. In 2007, a U.S. blue ribbon military advisory panel found Diego Garcia at risk of submersion due to low land elevation at only 1.3 meters and rising seas. The U.S. may need to close the base, perhaps in a matter of decades.

Two outer atolls were studied for resettlement in 2002, with 35 islands averaging two meters elevation. Climate change is expected to at least cause an increase in cyclones, flooding, and coastal erosion, coral bleaching, and freshwater salinity on the islands. Scientists found short-term resettlement feasible, though long-term maintenance prohibitively expensive.

Whatever Mauritius decides regarding the other issues, it will also need to incorporate climate change adaptation plans.  Instead, it could also start with a more robust climate change study to assess whether all the above trouble is actually needed or if the islands are destined to soon be underwater and should be treated as such.

Conclusion

Following the overwhelming support of the 2019 U.N. decisions, it appears there is no longer a significant, global pro-colonial force. There is no longer reverence for old world superpowers refusing to acknowledge they are now in a new world. The Chagos decision is hopefully a sign of more decolonization to come.

However, the actual implementation of the decision will be long and arduous. There are many complex decisions to make, which will require continued partnerships and support from the global community. Further, some of the major risks provoke questions as to whether resettlement should actually even be attempted.

Self-determination does not necessarily mean returning to the status quo – it is the power to decide what to do next. The symbolism of that is already evident by Chagos’ impact to the global consciousness and conscience over the last few years.

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