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The Rules-Based Order, Maritime Freedom and Recent Naval Operations in the Barents Sea

[source: U.S. Navy from Royal Navy] [official description: “200505-N-NO901-3026 ARCTIC OCEAN (May 5, 2020) The Royal Navy Type-23 Duke-class frigate HMS Kent (F78), front, and the Arleigh Burke-class guided-missile destroyer USS Donald Cook (DDG 75) conduct joint operations to ensure maritime security in the Arctic Ocean, May 5, 2020.”]

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Last week, the U.S. Navy announced publicly that a group of warships had entered the Arctic waters of the Barents Sea to “conduct maritime security operations.”  The ships participating in these combined operations included three U.S. Navy Arleigh Burke-class destroyers and one Royal Navy Duke-class frigate, all of which were accompanied by a U.S. Naval Ship to provide them with logistical support during their operations.  This group of surface ships also received air supportduring these operations from a U.S. Navy P-8A maritime patrol and reconnaissance aircraft and a U.S. Air Force RC-135 reconnaissance aircraft.  Given that these operationswere conducted within a body of water located among the coastlines and island groups of twoEuropean coastal states(i.e., Norway and Russia), the U.S. ships were under the operational command of Commander, U.S. Naval Forces Europe/Africa, headquartered in Naples, Italy.  Of significance, the U.S. Navy’s press release highlighted that these were the first “surface” operations conducted by the U.S. Navy in the Barents Sea since the mid-1980s.  Additionally, the press release declared that these combined naval operations had two intended purposes: (1) to “demonstrate seamless integration among allies” and (2) to “assert freedom of navigation.”About this second purpose, the commander of the destroyer squadron stated, “It was great to be operating in the Barents Sea again.  This is what it means to be a global Navy, sailing wherever international law allows.”

When it comes to “sailing wherever international law allows,” the concept of maritime freedom has received significant international attention over the past few years –but primarily for waters elsewhere in the world that are distant from European shores.  In general, there is a minority of coastal states around the world that attempt to restrict the transits and activities of other states’ vessels and aircraft, particularly their military vessels and aircraft, in excess of what international law permits them to restrict.  While not the only culpable state, China has received much scrutiny for its efforts to control how ships and aircraft may operate on and over the waters of East Asia, particularly within its infamous 9-dash line in the South China Sea.  If other states acquiesce to illegal restrictions imposed by this minority of coastal states, then the maritime freedom guaranteed to all states globally could be jeopardized.

To counter efforts by this minority of coastal states to restrict maritime freedom, the U.S. government has executed a presidentially-directed, multi-agency “Freedom of Navigation Program” over the past four decades.  In conjunction with formal diplomatic protests by the U.S. Department of State, ships and aircraft of the U.S. military conduct routine transits and peaceful activities, known technically as “freedom of navigation operations” (FONOPs) or “operational assertions.”Of note, the U.S. Freedom of Navigation Program also includes what is described as “other FON-related activities” — that is, operations that have “some other primary purpose, but have a secondary effect of challenging excessive maritime claims.”The purpose of these FONOPs and other FON-related activities is to ensure that unlawful, unilateral restrictions imposed by coastal states are not accepted internationally.  For the Arctic region specifically, the U.S. Department of Defense Arctic Strategy (June 2019) described the importance maritime freedom in the Arctic region as follows:“Maintaining freedoms of navigation and overflight are critical to ensuring that the Arctic remains a free and open domain and that U.S. forces retain the global mobility guaranteed under international law. DoD will continue to fly, sail, and operate wherever international law allows.”  At a fundamental level, that same U.S. strategy recognized that preserving maritime freedom in the Arctic, as it is other regions of the world, is about “strengthening the rules-based order.”

On previous occasions, this author has sought to provide insights into the importance of maritime freedom and the deliberate role of the U.S. military in helping to preserve this freedom.  These commentaries have included examinations of the legality and legitimacy of such military operations, explanations about why are they are conducted in the South China Sea, and efforts to quash legal disinformation and dispel factual myths propagated by critics who are opposed to these operations.  Critics of the U.S. Freedom of Navigation Program, including voices in China, often allege inaccurately that these operations are intended to be provocative and that they seek to single out nations that the United States does not like.  At the same time, some European legal observers might be unfamiliar with the FON program and question whether FONOPs are warranted.  For these reasons, the recent U.S./U.K. naval operations in the Barents Sea provide an opportunity to reflect upon the importance of preserving maritime freedom – not only in that body of water, but in oceans world-wide. 

Restrictions on Maritime Freedom in the Barents Sea

Military doctrine explains, “Understanding the operational environment is fundamental to joint operations.”  This operational environment includes “the conditions, circumstances, and influences that affect employment of capabilities and bear on the decisions of the commander.”  In terms of law, what are the “influences” or “conditions” that could affect the operational environment of the Barents Sea?  As mentioned previously, there are two states with territory surrounding the Barents Sea: Norway and Russia.  Norway has not attempted to restrict the maritime freedom enjoyed by other states, but Russia has asserted excessive maritime claims that could affect maritime freedom within portions of the Barents Sea.In particular, Russia has two maritime claims that might have potentially been challenged during the recent U.S./U.K. naval operations.

First, Russia has drawn baselines along its entire coastline, which close off an excessive amount of waters as internal waters and improperly push out the starting point for measuring its maritime entitlements (i.e., territorial sea, contiguous zone, and exclusive economic zone).  As reflected in applicable international law, the normal rule for drawing baselines along a state’s coastline is to use the low-water mark. The International Court of Justice has ruled that the method of straight baselines is “an exception to the normal rules for the determination of baselines” and “may only be applied if a number of conditions are met.”  For example, a straight baseline drawn across a body of water shall not exceed 24 nautical miles. Notwithstanding these legal limitations, Russia has literally implemented the exception to be its universal rule.  In 1984 and 1985, the then-Soviet Union declared a comprehensive regime of straight baselines along its entire coastline.  For purposes of this discussion, the 1985 declaration including straight baselines on Russia’s coastline adjacent to the Barents Sea.  Of note, one of those baselines is drawn from Cape Svyatoy Nos and Cape Kanin Nos, measures approximately 220 nautical miles in length, closes off the mouth of the White Sea, and thereby seeks to make it entirely internal waters. Consequently, the U.S. government views Russia’s regime of straight baselines to be an excessive maritime claim, and challenged these baselines diplomatically and operationally in the 1980s.

Second, Russia has imposed navigational restrictions along the Northern Sea Route (NSR), which appear to apply to military and non-governmental vessels alike.  In 2012, Russia enacted its Federal Law of Shipping on the Water Area of the Northern Sea Route.  This law mandates that foreign vessels intending to transit the NSR shall, among other requirements, provide advance notification of transits, use Russian ice pilotage, pay pilotage fees, and be escorted by Russian icebreakers.  In May 2015, the U.S. Department of State delivered a diplomatic note to the government of Russia, which identified a number of ways in which its NSR law exceeded the authority of a coastal state under international law.  The diplomatic note highlighted that the Russian legal regime “does not seem to provide an express exemption for sovereign immune vessels.”  Similarly, the DoD Arctic Strategy assessed there strictions of Russia’s NSR law to be “in excess of the authority permitted under international law.”Notwithstanding these U.S. concerns, the Russian government did not eliminate or loosen these restrictions, but rather started the process of furthering tightening them.  In March 2019, Russia announced draft legislation that would expressly apply these transit requirements on foreign warships, which would clearly violate the sovereign immune status of such warships. 

For these two excessive maritime claims asserted by Russia, the question remains: could the U.S./U.K. warships have challenged either or both these claims during their Barents Sea operations?  In all likelihood, they could have challenged the first one, but maybe not the second one.  Given that Russia’s straight baselines include its entire coastline in the Barents Sea, these foreign warships could have conducted one or more FONOPs to challenge that claim.  But it is somewhat unclear whether it would have been feasible for the foreign warships to challenge the second claim in the Barents Sea.  By the actual language of Russia’s 2012 NSR law, these requirements apply to vessels navigating in the “area of the Northern Sea Route.”  Article 5.1. of that law defines that “area” to include “a water area adjoining the northern coast of the Russian Federation, including internal waters, territorial sea, contiguous zone and exclusive economic zone of the Russian Federation.”  It further defines that area to span from the Bering Strait at its most western point to the “east coast line” of the Novaya Zemlya archipelago.  In other words, the Barents Sea is not within what defines as the “area of the Northern Sea Route.”However, Commander, U.S. Naval Forces Europe/Africa published an opinion-editorial in July 2019, in which he expressed concern about Russia’s increased restrictions on the NSR.  Of note, his description of the NSR implied that the Barents Sea was impacted by Russia’s law, given that he described the NSR as one that “connect the Kola Peninsula and the Bering Strait.”  If that the U.S. understanding of the situation, then these naval operations might have additionally or alternatively sought to challenge this second excessive claim.

As an aside, it would also be helpful to understand what is not the purpose of FONOPs.  In particular, these operational activities are directed at excessive maritime claims, not competing maritime claims.  For competing claims, the U.S. government generally does not take a side in maritime disputes to which the United States is not a party, but calls upon the claimant-states to resolve their disputes by peaceful means in accordance with international law.  This policy nuance is sometimes misunderstood by some government officials and outside observers, particularly in complex situations such as the South China Sea, where competing claims and excessive claims exist simultaneously.  But fortunately, this is not an issue in the Barents Sea.  That is, the “operational environment” of the Barents Sea is not complicated by competing maritime claims, given that Norway and Russia have an agreed maritime boundary delimitation, based upon their 2011 bilateral treaty.

Returning to the matter of maritime freedom, some observers might wonder: what exactly did the U.S./U.K. Navy do during these recent operations in the Barents Sea to protect maritime freedom?  The U.S. Navy’s press release for the Barents Sea operations stated generally that one of the purposes of these operations was to “assert freedom of navigation,” without specifying whether any element of these ongoing operations would actually include ship transits or activities designed to directly challenge one or more of these excessive maritime claims asserted by these surrounding states.  Hopefully, given that the public records of U.S. Freedom of Navigation operations reflect that the most recent diplomatic and operational challenges to these excessive maritime claims in the Barents Sea were in the 1980s and early 1990s, the U.S. and U.K. navies seized this opportunity to renew the operational challenges to some or all of these excessive claims.For reasons of operational security, the public will not know for certain whether specific operational challenges were conducted during these Barents Sea operations until the U.S. Department of Defense issues its annual Freedom of Navigation report for fiscal year 2020, which would be published sometime in early 2021.However, in light of recent U.S. practice elsewhere in the world, the U.S. government might alternatively decide to publicize any freedom of navigation operations in the Barents Sea, soon after they were conducted.

Finally, it should be noted that these recent U.S./U.K. naval operations might have intended to preserve maritime freedom more generally, without actually including a FONOP or other FON-related activities that directly challenge a particular excessive maritime claim.  The U.S. Navy sometimes publicly characterizes these as a “persistent presence” or “routine presence operations.” Such presence operations can be intended to effectuate several national security policies or interests simultaneously, to include preserving maritime freedom, reassuring allies and partners, deterring transnational crimes such as piracy, and dissuading competitors and potential adversaries.  Of course, there would be nothing wrong if these recent naval operations did not include activities to directly challenge one or both of these excessive maritime claims asserted by Russia.  However, given the logistical challenges, expended resources, expansive area of operations, and relatively infrequency for this group of warships to transit to and operate within Arctic waters, it would have been a lost opportunity if the U.S. Navy did not conduct at least one FONOP as an element of these Barents Sea operations.

The Significance of Providing Notification

Given the geopolitical status of Russia in the European theater, perhaps some additional thoughts on maritime freedom through the lens of U.S.-Russia relations are warranted.  The current U.S. National Security Strategy recognizes that the United States, Russia, and China are not “at peace” or “at war,” but rather are operating in “an arena of continuous competition.”  The strategy also identifies that a “risk of conflict due to Russian miscalculation is growing.”  In response, the U.S. strategy declares, “We will raise our competitive game to meet that challenge, to protect American interests, and to advance our values.”  Additionally, the United States seeks to “deepen collaboration with [its] European allies and partners to confront forces threatening to undermine our common values, security interests, and shared vision.”  These allies would include the United Kingdom, and these common values would include preserving maritime freedom.  Yet a question arises:  how can the United States protect a value or interest like maritime freedom without increasing the risk of miscalculation by a competitor like Russia?  Once again, consider the Barents Sea naval operations as an illustrative example.

An important preparatory step taken with respect to these naval operations was that Russia was notified that they were occurring.  As a matter of practical details, when and how was this notification provided?  The U.S. Navy’s press release addresses when it was provided: “The Russian Ministry of Defense was notified of the visit to the Barents Sea, May 1.”But it does not specify the manner in which the notification was provided.  In all likelihood, the U.S. government provided this notification through defense attaché channelsor a direct communications link with the Russian government.

Another logical question worth asking is why was this notification provided?  The U.S. Navy’s press release clarifies, “The notification was made in an effort to avoid misperceptions, reduce risk, and prevent inadvertent escalation.”  Some observers might wonder whether providing this advance notification of these operations sets a “bad precedent.”  International law can be formed by either conventional law or customary law, but both forms of law create legal obligations for the state-parties involved.  In terms of customary law, a concern might be that a practice of providing notifications to a coastal state before conducting transits or commencing routine operations could eventually form an obligation to provide such notifications in the future.  Paradoxically, legal experts might question whether providing this type of notification for naval operations – especially ones that are specifically intended, in part, to protect maritime freedom — might risk undercutting that very freedom by providing that notification.

In this particular instance, however, this notification arguably does not jeopardize the maritime freedom guaranteed to all states under international law.  As the International Court of Justice has explained, customary international law is formed through state practice accompanied by “a belief that is practice is rendered by the existence of a rule of law requiring it.”  This necessary element is captured by the Latin phrase opinion juris sive necessitatis, or “opinio juris” for short.  This raises the question:  what was the intended purpose of this notification for these naval operations?  In other words, this notification was not provided out of some sense of obligation or requirement of the international law of the sea.  Instead, the decision to provide this information to Russia was made as a matter of U.S. policy. 

Moreover, the U.S. Navy’s press release does not indicate that notification was provided for a particular freedom of navigation operation to challenge a specific maritime claim asserted by Russia as a coastal state.  Instead, the notification might have been more generally about the combined U.S./U.K. naval operations within the high seas of Barents Sea.  This would be consistent with specific obligations under a bilateral agreement that is separate and apart from the international law of the sea.  In fact, the United States and Russia have several bilateral agreements that include notification provisions designed to reduce risk of unsafe incidents or escalation between their respect military forces.  Under the 1972 Prevention of Incidents On and Over the High Seas Agreement (INCSEA), both the United States and Russia agreed to “provide through the established system of radio broadcasts of information and warning to mariners, not less than 3 to 5 days in advance as a rule, notification of actions on the high seas which represent a danger to navigation or to aircraft in flight.”  Additionally, the two governments concluded a legally-binding, bilateral agreement in 1989 with the stated purpose of “prevent[ing] dangerous military activities, and thereby [reducing] the possibility of incidents arising between their armed forces.”  Article II of that agreement obligates each party to “take necessary measures directed toward preventing dangerous activities,” without specifying what types of measures are necessary and whether those measures might include prior notification of conducting activities.  At the same time, however, Article VIII of that same agreement states, “This Agreement shall not affect…the rights…of navigation and overflight, in accordance with international law.”  In short, the U.S. advance notification to Russia about these naval operations did not otherwise undermine the maritime freedom to operate in the Barents Sea.

The Importance of “Maintaining” Maritime Freedom Against “All Hazards”

In closing, a brief lesson in maritime history and law might be appropriate.  The Barents Sea was named after Willem Barentsz.  Living in latter half of the sixteenth century, Barentz was a Dutch navigator, cartographer, and explorer.  During his seafaring career, he famously explored all of the oceans and islands surrounding the European continent, to include the Mediterranean Sea but more notably waters within the Arctic Circle.  Hoping to find the “northeast passage,” Barentz and his crews impressively braved extreme weather conditions and undertook three historic voyages through these icy waters.  For these accomplishments, one of the bodies of water that he was a pioneer to explore was eventually named in his honor.  Coincidentally, the final years of Barentsz’s life overlapped with the first years of another famous Dutchman:  Hugo Grotius.  Grotius was aware of his fellow countryman’s contribution to international maritime exploration, as he purportedly observed that Baretnsz was “worthy to be ranked with” the Italian Amerigo Vespucci and Christopher Columbus.  Eventually, Grotius left his own mark on world history, being described now by many legal experts as the “father” of international law. 

Only a decade after Barentz’s death, Grotius published his pamphlet Mare Liberum, which translates from Latin as The Freedom of the Sea.  About the universality of maritime freedom, Grotius famously observed, “[T]he sea is common to all, because it is so limitless that it cannot become a possession of any one, and because it is adapted for the use of all, whether we consider it from the point of view of navigation or of fisheries.”  At that time, Grotius was countering Portugal’s mare clausum (closed sea) policy.  What happens if one state seeks to control other states’ free access to the world’s oceans: should those others states capitulate or acquiesce?  Grotius legal defense of maritime freedom argued otherwise:

Wherefore since both law and equity demand that trade with the East Indies be as freeto us as to any one else, it follows that we are to maintain at all hazards that freedom which is ours by nature, either by coming to a peace agreement with the Spaniards, or by concluding a treaty, or by continuing the war.

Four centuries later, we see that two truths endure: the cold weather conditions of the Barent Sea still pose a “hazard” to mariners who brave those Arctic waters; so, too, do the efforts by some states around the world that seek to restrict the maritime freedom of other states, including in the waters of the Barents Sea.  In the contemporary era, however, the ways for states to “maintain” their maritime freedom has been refined, beyond “a treaty” or “a war.”  In between those extremes rests another option:  routine, peacetime naval operations, like those recently undertaken by two allied navies.

Jonathan G. Odom is a judge advocate (licensed attorney) in the U.S. Navy. Currently, he serves as a Military Professor of International Law at the George C. Marshall European Center for Security Studies, located in Garmisch-Partenkirchen, Germany. Previously, he has served as the oceans policy adviser in the Office of the U.S. Secretary of Defense and as a Military Professor of law and Maritime Security at the Daniel K. Inouye Asia-Pacific Center for Security Studies. The views expressed are his own and do not necessarily reflect the positions of the U.S. Government, the U.S. Department of Defense or any of its components. He may be contacted at jonathan.odom[at]usa.com

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International Law

A leader of the third world has to lead a movement for reformation of the International law

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It is by no means a hyper reality that China has accelerated its geo political influence around the world this year despite the criticism of the West on China’s negligence in concealing the COVID 19 at outset. China being one of the permanent members of security council has widely contributed to the UN system. In this single modern global market, the People’s Republic of China has arguably become the manufacturing hub of the world in producing a large number of goods than any other western country, besides that it has also become the world’s second largest importer of goods.  Today the realm of bargaining power in the positivistic international law is completely based in the idea of power politics and the US stands as its cradle beyond a doubt. I would mention America as leader of the first world and China as leader of the third world. As the leader of the western world, the United States relentlessly works for its political, economic and legal dominance, which it has been enjoyed for plenty of years. The third world, which is considered to be the group of states known for its extreme poverty, civil wars, unrest and unemployment, has realized that poverty would become an inevitable obstacle in the process of its development. Mohammed Bedjaoui , who had served as a judge on the International Court of Justice, clearly claimed in his great astonishing work “ Towards a New International Economic Order” that “ It is western exploitation that leads to the poverty of the third world. “The third world pays for the rest and leisure of the inhabitants of the developed world,” and that “Europe created, and the United States has appreciably aggravated, most of the problems which face the third world”.

International law governing the rights and duties of states is perpetually and predominantly being dominated by the first world and its embodiment that is the United States. In this research article, I am going to discuss two essential things which are: what China has to do to reform the west constructed International law and as well as why China should lead a movement of the third world for its reformation?

For knowing these queries, we have to note the origins of International law down and how it works in today’s world?

If we have a look at the brief history of International law, International law has its roots in diverse European civilizations. To say in simple terms, International law is Eurocentric. Natural law which is also considered as a part of International law was developed by ancient Christian thinkers whose ideas were rooted in the Greco Roman ideas on rights and justice, in the due course of time those ideas were imbued with the Catholic theological virtues. However, it was such a sense of sheer irony that ideas such as natural law venerated by the Catholic thinkers were later used to legitimize the colonial expansion in the 16th century. For instance Francesco Vittoria who has been regarded as one of pioneers of modern international law used the very concept of natural law as Spanish justification of its rights over Indian territories in America. Let us turn towards modern International law. Modern International law primarily developed based on two concepts that are the concept of State practice and International treaties.

On the one hand, most of the global scholars perceive the United Nations charter as a founding International treaty of International law that contains rights and duties of states. On the other hand, the third world scholars perceive the United Nations as a founding organization of colonial imperialistic powers. There is a general perception among third world International law scholars that the Security Council of the United Nations is completely dominated and run by the colonial turned imperial powers. Four members out of the five in the Security Council were purely colonial countries who had ruled and economically exploited the world for centuries. The Security Council has also arguably been Eurocentric which is consisted of more western states embodying their own interests. Security Council is the principal organ of the United Nations, which mostly enjoys veto power. Permanent members may use the veto to defend their national interests. Over the years, in history of the Security Council, the United States has used the veto power more than other permanent member for defending west interests including Israeli interests. Most importantly, the third world has no effective role to play and to defend its interests in this globalised world. The colonial super powers met in San Francisco, to establish a predecessor to the League of Nations, have not granted independence to a number of African and Asian countries. Most of the third world countries became independent after establishing the United Nations.

Finally, we reached to the end. I would conclude this article by answering questions that I have put above. The structure of the United Nations is based on the charter of the United Nations, which is considered as a founding document of modern International law.  In this way, the United Nations charter grants more absolute powers to the Security Council where third world countries do not have participation. The leader of the third world China must wage a movement for developing countries to reform the Security Council. China has to collaborate with a group of developing countries for removing global financial power that lies with the Bretton Woods Institutions. Obviously, most of the power lies with the Bretton Woods Institutions, where western nations exercise the power on the rest of the world. So far, third world was exploited. So, the rest of the world outside the west has to demand for new international economic order, which would work for developing states.

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UN at 75: The Necessity of Having a Stronger & More Effective United Nations

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October 24, 2020, marks the 75th anniversary of the United Nations. In this context, this article investigates the necessity of having a stronger UN for the benefits of the world’s people. In fact, if one looks at the past, the UN came up in 1945 in response to the Second World War for a more stable, secured, and peaceful world. And the UN has been successful to a larger extent to that goals and objectives, many argue. Kofi Annan, the former UN Secretary-General for instance, wrote that ‘The United Nations, with their rules and institutions, are at the heart of the international system. They encourage States to prevent or settle disputes peacefully. The United Nations speaks for the voiceless, feeds the hungry, protects the displaced, combats organized crime and terrorism, and fights disease across the globe’ (Annan 2015).

If one looks at the history, after the Second World War, there are not so many wars on a large scale or conflicts except some bilateral Wars like Vietnam War or Iraq invasion in Kuwait or US invasion in Afghanistan or Iraq or Syrian crisis or Rohingya crisis. One can claim that the present world is more stable and peaceful than the world before the Second World War. Against this backdrop, Ramesh Thakur rightly observes, ‘On balance, the world has been a better and safer place with the UN than would have been the case without it (Thakur 2009:2). And it will not be wrong to claim that the United Nations Security Council (UNSC) is playing a crucial role in this regard, focusing both on ‘hard’ and ‘soft’ security issues. Hard security issues ranges from nuclear threat to international terrorism and soft security issues include human security issues to human rights to international criminal justice and international sanctions (For details see, Thakur, 2009).

The UN is not only concerned about international peace and security but also concerned about economic and social issues. There are several UN organizations e.g. United Nations Development Programme (UNDP), World Food Programme (WFP) or the United Nations High Commission for Refugees (UNHCR) which is involved in socio-economic issues that impact millions of people globally.

First, one can look at the role of the UN General Assembly to understand the necessity of having a more robust UN. It is the core organ of the UN. It is the only organ in which all the member countries are represented all of the time. The role of the UN includes to pass resolutions and to create subsidiary agencies to deal with particular issues (Barkin 2006: 58). UN General Assembly works as a forum where the world’s states meet and discuss the pressing global problems. In this context, Eleanor Albert, Leo Schwartz, and Alexandra Abell write that ‘Since its inception seventy-one years ago, the United Nations General Assembly has been a forum for lofty declarations, sometimes audacious rhetoric, and rigorous debate over the world’s most vexing issues, from poverty and development to peace and security’ (Albert et al. 2016). However, in September 2015, the Assembly agreed on a set of 17 Sustainable Development Goals, contained in the outcome document of the United Nations summit for the adoption of the post-2015 development agenda (resolution 70/1). Notably, the implementation of SDG goals will have broader implications for the world’s people.

In addition, the Assembly may also take action in cases of a threat to the peace, breach of peace or act of aggression, when the Security Council has failed to act owing to the negative vote of a permanent member. In such instances, according to its “Uniting for Peace” resolution of 3 November 1950, the Assembly may consider the matter immediately and recommend to its Members collective measures to maintain or restore international peace and security.

Second, one should also look at the role of the Security Council to make the case of having a stronger United Nations. The UN Security Council is the most powerful security-related organization in contemporary world politics. As the Charter of the United Nations says: ‘the Security Council has primary responsibility for the maintenance of international peace and security (Article 24). The Security Council takes the lead in determining the existence of a threat to the peace or act of aggression. It calls upon the parties to a dispute to settle it by peaceful means and recommends methods of adjustment or terms of the settlement. In some cases, the Security Council can resort to imposing sanctions or even authorize the use of force to maintain or restore international peace and security’

In contemporary world politics, the UN Security Council is the most potent security-related organization because it is the only recognized and legitimate international organ which deals with international peace and security. In this regard, Justin Morris and Nicholas J. Wheeler claim that ‘The United Nations Security Council is at the heart of the world’s collective security system’ (Morris and Wheeler 2007: 214). The UNSC play role by passing Resolutions regarding maintaining international peace and security, determining threats to peace and security and finally undertaking peacekeeping operations.

Decisions made by the Security Council are known as the Security Council resolutions. Examples of Security Council resolutions include Resolution 794 (1992), which authorized military intervention in Somalia on humanitarian ground, or the resolution 1325 (2000), which called on states to recognize the role of women in peace, and security and post-conflict situations. In the UN Security Council Working method Handbook, it is noted that the UNSC has adopted over 2,000 resolutions relating to conflict and post-conflict situations around the globe. Another report, titled Repertoire of the Practice of the Security Council noted that between 2008 and 2009, the Security Council adopted  35 out of 65 resolutions in 2008 (53.8 %), and 22 out of 47 resolutions in 2009 under Chapter VII (46. 8 %) concerning threats to the peace, breaches of the peace or acts of aggression. The report also notes about several UN resolutions authorizing United Nations peacekeeping missions. In connection with the mission deployed in the Central African Republic and Chad, the Council approved the deployment of a United Nations military component for the first time in 2009 to follow up operations by the European Union in Chad and Central African Republic (EUFORChad/CAR). The Council continued to authorize enforcement action for United Nations peacekeeping missions in Côte d’Ivoire (UNOCI), Darfur/Sudan (UNAMID), the Democratic Republic of the Congo (MONUC), Lebanon (UNIFIL) and Sudan (UNMIS). This increased number of UNSC Resolutions dealing with international peace and security reinforces its legitimacy and power as a security organization.

The critical question that comes into the forefront is how much UNSC can implement its mandates neutrally or independently in terms of maintaining world peace and security. The critiques bring the example of Iraq war (2003) where UNSC ‘faces a crisis of legitimacy because of its inability to constrain the unilaterally inclined hegemonic United States.’ (Morris and Wheeler 2007:214). Another critical question is the role of UNSC in resolving the long-standing Syrian crisis or the Rohingya refugee crisis.

It is undeniable the fact that UNSC cannot function with its full potentialities due to the challenges and limitations it faces because ‘in their pursuit of raisons d’état, states use whatever institutions are available to serve their interests’ (Weiss 2003: 151). And here comes the politics in the Security Council which is highly manifested in the past. Against this backdrop, Weiss correctly observes, ‘the politics of the UN system- not only the principal organs of UN like Security Council or General Assembly is highly politicized but even ‘technical’ organizations, for instance, World Health Organization or the Universal Postal Union continue to reflect the global division between the so-called wealthy, industrialized North and the less advantaged, developing South’ (Weiss 2009: 271).

It is, therefore, states and particularly the P5 want to use the Security Council as a means to uphold its interest. Gareth Evans rightly points out ‘for most of its history the Security Council has been a prisoner of great power manoeuvring…’ (Evans 2009:Xi).  Hence, using veto by the P5 remains a significant challenge for the UNSC to work in its fullest potentials. In the recent case of the Rohingya refugee crisis, the UNSC is unable to take adequate measures due to veto power used by China and Russia. However, the UNSC is responsible for maintaining world peace and security.

The bottomline is that there is no alternative to having a stronger and more effective UN because it is the only hope for millions of people around the world. The UN is an inevitable international organization in this turbulent world despite its criticism or limitations.Thus, it becomes essential for the P5 nations to think about the broader benefits of the world’s people instead of their narrowly defined interest in the case of using veto power. And the world also needs to acknowledge that the UN reform has been a reality to ensure the neutrality and objectivity of the United Nations for a more peaceful, stable, secured world.

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The United Nations and the Neglected Conflict of Kashmir

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The principle of ‘right of self-determination’ and its applicability to the 72-year-old Kashmir conflict needs to be considered during the 75th session of the Fourth Committee of the United Nations General Assembly that is taking place between October 8 to November 10, 2020 at its headquarters in New York. The Committee will discuss and deliberate the issues related to international conflicts and decolonization. What I do hope to offer is an unstarry-eyed view of the fate of self-determination in Kashmir; and, the indispensability of convincing the United Nations that international peace and security would be strengthened, not weakened, by resolving the Kashmir conflict to the satisfaction of all parties concerned..

The self-determination of peoples is a 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 disputes.

The concept seems to be as old as Government itself and was the basis of French and American revolutions. In 1916, President Wilson stated that self-determination is not a mere phrase. He said that it is an imperative principle of action and included it in the famous 14-point charter. This gave a prominence to the principle. Self-determination as conceived by Wilson was an imprecise amalgamation of several strands of thought, some long associated in his mind with the notion of “self-determination,” others hatched as a result or wartime developments, but all imbued with a general spirit of democracy.

Self- determination is a principle that has been developed in philosophic thought and practice for the last several hundred years. It is an idea that has caused people throughout the world to rise up and shed the chains of oppressive governments at great risk.

Finally, in 1945 the establishment of the UN gave a new dimension to the principle of self-determination.  It was made one of the objectives, which the UN would seek to achieve, along with equal rights of all nations. Article 1.2 of the Charter of the Untied Nations reads: “To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples.”

From 1952 onwards, the General Assembly of the UN adopted a series of resolutions proclaiming the right to self-determination. The two most important of these are resolution 1514 (XV) of 14 December 1960 and resolution 2625 (XXV) of 24 October 1970. Resolution 1514 was seen almost exclusively as part of process of decolonization. 1514 is entitled: Declaration on the Granting of Independence to Colonial Countries and Peoples.”

International Court of Justice considered the several resolutions on decolonization process and noted:  “The subsequent development of International Law in regard to non-self governing territories as enshrined in the Charter of the UN made the principle of self-determination applicable to all of them.”  This opinion establishes the self-determination as the basic principle for the process of de-colonization.

The principle of self-determination in modern times can be defined as the right of peoples to determine their own political status and pursue their own economic, social and cultural policies.  Self-determination in its literal meaning or at a terminological level also implies the right [of a people] to express itself to organize in whatever way it wants. A people must be free to express their will without interference or threat of interference from a controlling authority. This includes alien domination, foreign occupation and colonial rule.

Although, the applicability of the principle of the self-determination to the specific case of Jammu and Kashmir has been explicitly recognized by the United Nations. It was upheld equally by India and Pakistan when the Kashmir dispute was brought before the Security Council. Since, on the establishment of India and Pakistan as sovereign states, Jammu and Kashmir was not part of the territory of either, the two countries entered into an agreement to allow its people to exercise their right of self-determination under impartial auspices and in conditions free from coercion from either side. The agreement is embodied in the resolutions of the United Nations Security Council, explicitly accepted by both Governments. It is binding on both Governments and no allegation of non-performance of any of its provisions by either side can render it inoperative.

It is apparent from the record of the Security Council that India articulated the principle, accepted the practical shape the Security Council gave to it and freely participated in negotiations regarding the modalities involved. However, when developments inside Jammu & Kashmir made her doubt her chances of winning the plebiscite, she changed her stand and pleaded that she was no longer bound by the agreement. Of course, she deployed ample arguments to justify the somersault. But even though the arguments were of a legal or quasi-legal nature, she rejected a reference to the World Court to pronounce on their merits. This is how the dispute became frozen with calamitous consequences for Kashmir most of all, with heavy cost for Pakistan and with none too happy results for India itself.

By all customary moral and legal yardsticks, 23 million Kashmiris from both sides of the Ceasefire Line (CFL) enjoy a right to self-determination. Kashmir’s legal history entitles it to self-determination from Indian domination every bit as much as Eritrea’s historical independence entitled it to self-determination from Ethiopian domination.

India’s gruesome human rights violations in Kashmir also militate in favor of self-determination every bit as much as Yugoslavia’s human rights violations and ethnic cleansing created a right to self-determination in Bosnia and Kosovo. Kashmir’s history of social and religious tranquility further bolsters its claim to self-determination every bit as much as East Timor’s history of domestic peace before Indonesia’s annexation in 1975 entitled it to self-determination in 1999.                                   

If law and morality are overwhelmingly on the side of Kashmiri self-determination, then why has that quest been thwarted for 72 years? The answer is self-evident: the military might of India. India is too militarily powerful, including a nuclear arsenal, and too economically mesmerizing to expect the United States, the United Nations, NATO, or the European Union to intervene. The United States is reluctant to exert moral suasion or pressure to prod India because it covets more India’s alluring economic markets and collaboration in fighting global terrorism.  Further, the size and wealth of the Indian lobby in the United States dwarfs the corresponding lobbies supporting Kashmir.  

The world powers need to understand that there is no way the dispute can be settled once and for all except in harmony with the people’s will, and there is no way the people’s will can be ascertained except through an impartial vote. Secondly, there are no insuperable obstacles to the setting up of a plebiscite administration in Kashmir under the aegis of the United Nations. The world organization has proved its ability, even in the most forbidding circumstances, to institute an electoral process under its supervision and control and with the help of a neutral peace‑keeping force. The striking example of this is Namibia, which was peacefully brought to independence after seven decades of occupation and control by South Africa; East Timor and Southern Sudan, which got independence only through the intervention of the United Nations. Thirdly, as Sir Owen Dixon, the United Nations Representative, envisaged seven decades ago, the plebiscite can be so regionalized that none of the different zones of the state will be forced to accept an outcome contrary to its wishes.

In conclusion, a sincere and serious effort towards a just settlement of the Kashmir dispute must squarely deal with the realities of the situation and fully respond to the people’s rights involved in it. Indeed, any process that ignores the wishes of the people of Kashmir and is designed to sidetrack the United Nations will not only prove to be an exercise in futility but can also cause incalculable human and political damage.

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