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The Artemis Accords: Repeating the Mistakes of the Age of Exploration

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“Space is a warfighting domain. . . . It is not enough to have an American presence in space; we must have American dominance in space.”- U.S. Vice-President Mike Pence, 20181

In the spring of 1493, the King and Queen of Spain sent an envoy to the Pope in Rome. Along with Portugal, Spain had just used its advanced sailing and navigation technology to reach “new worlds”, areas of the Earth that had not been previously discovered by Europeans. But they had a problem: they wanted to establish sovereign property rights in the lands they had discovered, but they weren’t sure they could do so under their own authority. So they turned to the only international authority in Europe at that time, the Catholic Church, which held sway over governments from Portugal to Poland, from the Arctic to the Mediterranean. If the Church would establish a legal framework that granted them sovereignty, then those nations would be bound to recognize it.2

This is the first lesson that the current governments of the world can learn from the Age of Exploration & Empire that began five centuries ago. Even then, the most powerful nation in Europe, with the largest army and most advanced technology, realized that it could not unilaterally establish property rights or any other kind of sovereignty without the approval of an international authority. After the Church granted that authority, Spain was able to create one of the greatest empires in history. Spain and Portugal formalized the arrangement with a binding international agreement, the Treaty of Tordesillas, whose purpose was to ensure peaceful cooperation between their nations, primarily by establishing a line of demarcation that separated their areas of activity.3

Unfortunately, the legal framework so established was based on national dominance, not multilateral international cooperation. The grant of sovereignty was exclusive, made only to Spain and Portugal, and it required them to subjugate the “savages” in the lands they discovered by taking along Church missionaries.This exclusivity did not sit well with other nations as they also developed the technologies of exploration; it was one of the reasons many northern European nations joined the Protestant Reformation and rejected the authority of the Pope in Rome. Without a fair and equitable international agreement that honored the interests of emerging states, the Church lost its ability to act as an arbiter between nations.

Even worse, the dominance model set up centuries of conflict among the major powers in Europe. Militant nationalism and economic colonialism became the principles guiding national policy. The result was centuries of war, suffering, and neglect among the major powers and the nations they subjugated. This pattern did not end until the 20th century, when the major powers fought two world wars and finally dismantled their colonial empires, sometimes peacefully, sometimes by force.

By the mid-1960’s, most countries on Earth were independent or on their way to becoming so. But a new conflict had started, one that threatened to repeat the mistakes of five centuries earlier. The great powers were once again using their advanced technology to explore new worlds, and the race was on to plant their flag on the Moon first. Under the ancient traditions, the country that did so would have a claim against all others for possession and use of the territory. The Cold War was about to expand into outer space.

But then something wonderful happened. In 1967, the United Nations proposed, and the world’s space powers accepted, an international agreement known as the Outer Space Treaty.4The Treaty was an intentional effort to avoid the mistakes of the Age of Exploration & Empire. Article I states that “The exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.” Article II is even more specific: “Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” Because of this Treaty, the United States carried a plaque to the Moon that said, “We came in peace for all mankind”.5 When the Apollo 11 astronauts planted the U.S. flag, they did so out of pride, but did not establish any claim or national priority.

This legal framework worked well initially, but people soon started wondering about what to do when countries and/or private entities wanted to start commercial activity on the Moon, or build settlements. The solution was the Moon Treaty, proposed by the United Nations and adopted by enough nations to come into force in 1984.6 But it has not yet been adopted by any space-faring nation. The United States, by a recent executive order, has specifically renounced the Treaty and stated its intentions to extract materials from the Moon without any international agreement.7

The newly announced Artemis Accords go even further. Although the actual Accords have not been released pending consultation with possible partners, the summary provided by NASA8indicates that the United States will unilaterally interpret the Outer Space Treaty to allow “space resource extraction”, despite the prohibition against appropriation in Article II of the Treaty. There will also be “safety zones” to avoid “harmful interference” with such operations. The effect is to establish exclusive economic zones, especially if “harmful interference” is defined to include economic harm, not just safety. Will the new Space Force be used to protect such economic interests? Will other nations be excluded if they support the Moon Treaty?9Will private actors be required to follow the same rules as states, as recommended in the recently-drafted Moon Village Principles?10This is the slippery slope of using unilateral action to establish economic rights rather than an international agreement.

The Artemis Accords acknowledge many beneficial agreements and policies: The Outer Space Treaty, Rescue Agreement, and Registration Convention (though not the Liability Convention); peace, transparency, interoperability, protecting heritage sites and sharing scientific information. But its unilateral authorization of space mining is a continuation of the Trump Administration’s underlying foreign policy strategy: unilateral dominance over international cooperation. The United States has withdrawn from the Paris Accords, the Iranian nuclear deal, and, in the middle of a pandemic, the World Health Organization. Dominance has even become the theme of the Administration’s domestic policy, with President Trump recently telling governors, “If you don’t dominate, you’re wasting your time. . . . You have to dominate.”11That core philosophy is now being applied to outer space, as Vice-President Mike Pence proudly announced (above). Despite the lessons of history, the United States is going full speed ahead with the “dominance” model of space development rather than working with the nations of the world to develop a “cooperation” model. Outer space, which so far has been preserved for peace and cooperation, is about to be spoiled, perhaps forever.

But if the Moon Treaty is the key to peaceful cooperation in outer space, why haven’t more nations adopted it? The reason appears to be that the Treaty is incomplete, and thus flawed. Article 11 requires an implementation agreement to create the legal framework for private activity. Without that agreement in place, some states fear the worst, that they will lose their sovereignty if they adopt the Treaty, especially since it refers to outer space as the “common heritage of mankind”. Private mining interests are afraid that their profits will be taxed for redistribution to less-developed countries. As one space law scholar put it:

“Some would say the biggest challenge for the implementation of the Moon Agreement are four little words found in Article 11 . . . the “common heritage of [hu]mankind”. . . . At first glance, it appears that to implement the concept of common heritage of humankind, an international body must be created to redistribute wealth and technology among nations.”12

Some even wonder if they will be able to market the materials they extract. As recently explained by an attorney for the mining industry:

Here’s the issue on the security of tenure [the right to extract materials] and the fiscal regime: there’s an Outer Space Treaty that was signed by a lot of countries when the moon exploration was going on, and the treaty includes a provision that says you can’t appropriate celestial bodies, that would include the moon.

The question is — what happens if I go to the moon? I set up shop, and I extract ice and rocks and start making things, do I own the rocks that I’ve extracted? I’m not saying that I own the moon, but if I put in the effort, do I own the resources? Same thing with asteroids,if I send a robot to the asteroid, it sets up shop and starts extracting things and using them, do you own the extracted mineral? And that’s the legal issue, that’s the unsettled question.13

Until the rule of law is extended to the Moon by such an international agreement, there will be great uncertainty as to the viability of commercial activities. It is an axiom of economics that businesses and investors hate uncertainty, as it makes it impossible to analyze risk and estimate the return on investment.

The solution is to create an implementation agreement that addresses these concerns and can be adopted along with the Moon Treaty. To that end, a Model Implementation Agreement has been drafted by The Space Treaty Project. It was first distributed for comment in 2018 and made its public debut at the 2019 Shanghai Advanced Space Technology conference. It has recently undergone peer review and was published in the Journal of Advances in Astronautics Science and Technology.14

The Model Implementation Agreement has only 10 paragraphs and is based on four organizational principles:

1) The Agreement must be comprehensive and support all private activity;

2) The Grand Bargain: Trade private property rights for public policy obligations;

3) Defer issues currently at impasse (e.g., monetary sharing of benefits) by creating a governance process for making future decisions;

4) Integrate and build upon current institutions and processes.

The Model Agreement supports all private activity by defining the “use of resources” to include the use of any location on the Moon for any purpose, much the same way that real estate and property rights are considered resources on Earth. Any use would be supported if the private activity is authorized/supervised by a country that has adopted the Moon Treaty and the implementation agreement, because any country that has done so has agreed to the public policy obligations therein and to require that their nationals abide by them.

What are the obligations of the Moon Treaty that the countries and their nationals must accept? They are summarized in paragraph 4 of the Model Agreement:

4. Public Policy Obligations

The States Parties agree that the public policy obligations of the Treaty and this Agreement include the following:

1. Use outer space exclusively for peaceful purposes (Article 3.1);

2. Provide co-operation and mutual assistance (4.2); 

3. Honor the Registration Convention and inform the public of:

– Activities (5.1)

– Scientific discoveries (5.1)

– Any phenomena which could endanger human life or health (5.3)

– Any indication of organic life (5.3)

– The discovery of resources (11.6)

– Any change of status, harmful impacts of activities, use of nuclear power, and links to websites for specific objects/activities [COPUOS recommendations]

4. Protect the environment and preserve areas of “special scientific interest” such as historic landing sites (7.1-7.3);

5. Allow free access to all areas by other parties (9.2);

6. Honor the Rescue Treaty (10.1)

7. Share technology as part of sharing the benefits of outer space with less technologically advanced countries (4.1-4.2)

The full Agreement [follows this article] or [is available at http://spacetreaty.org/modelimplementationagreement.pdf]:

Most of these obligations are already established in other widely adopted treaties, i.e., the Outer Space Treaty, the Rescue Agreement, the Registration Convention, and the Liability Convention. Even the Artemis Accords acknowledge many of them (see above).But there are some that are not acknowledged, such as sharing the discovery of resources, protecting the natural environment, and sharing technology. The Accords are also silent as to whether its obligations will apply to private parties.

Sharing technology is not specified in the Moon Treaty, but some view it as included in Article 4:“The exploration and use of the moon shall be the province of all mankind and shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development.”The “Building Blocks” of The Hague Spaces Resources International Working Group call for sharing technology on a “mutually-accepted basis”.15The Working Group members were “stakeholders of space resource activities and represent consortium partners, industry, States, international organizations, academia and NGOs.”16It is significant that stakeholders from the private sector are willing to consider the sharing of technology. If a “mutually-accepted basis” for sharing cannot be found, the Model Agreement would require the licensing of technology at fair market value.

Accepting the obligations of the Moon Treaty is the trade-off for private property rights, the “Grand Bargain” in the organizational principles. They are no more onerous or burdensome than the obligations that property owners must accept on Earth. Here, property owners must always consider what effect activity on their own property will have on others. Property on Earth is subject to regulation (e.g., zoning, permits, safety) and can be taken (with compensation) for public policy reasons. It is unreasonable to expect that the use of property on the Moon will not be subject to similar regulation.

The Model Agreement contains other provisions, such as controlling law, dispute resolution, and future governance for substantive decisions. It also protects the rights of individuals and those wanting to establish private settlements: “Nothing in this Agreement or in the Treaty shall be interpreted as denying or limiting the rights guaranteed to individuals by the Universal Declaration of Human Rights, or the right of settlements to seek autonomy and/or recognition as sovereign nations.” (Paragraph 10). By providing legal support for all private activity, protecting individual rights, and maintaining essential public policies, the Model Implementation Agreement satisfies all concerns about the Moon Treaty and creates a practical, cooperative alternative to the unilateral and exclusive dominance model being proposed by the United States.

The current Model Agreement is the product of consultation with many individuals and organizations over the past three years. It now being presented for consideration as a reasonable alternative to the Artemis Accords. If adopted, the Agreement will have a significant advantage over the Accords in that, like all treaties, it will be an enforceable international agreement that is binding on the States Parties, not just a unilateral action by one country with a few activity partners. It will also be comprehensive, supporting all private activity, not just materials extraction like the Accords. And it will include an overall framework for international cooperation, including controlling law and dispute resolution, none of which are included in the Accords.

We have become familiar with the Overview Effect, that fundamental change in attitude that comes from viewing the Earth from space, as with the picture of Earthrise taken from the Moon in 1968. We must now take an overview through time. Humanity is on the verge of leaving the home planet. It is the greatest adventure and opportunity in our history, but it will be an opportunity lost if we repeat the mistakes of the last Age of Exploration. We can continue to preserve outer space for peaceful cooperation, or we can extend the pattern of domination and conflict that for too long has controlled our destiny on Earth.

At this most pivotal moment in history, the choice is ours.

Many thanks to Vidvuds Beldavs and the International Lunar Decade (https://ildwg.wordpress.com/) for assistance in researching this article.

References

1. Washington Post, videos of U.S. Vice-President Mike Pence: “Space is a warfighting domain”, October 23, 2018. https://www.youtube.com/watch?v=0LtLNp4nde0“We must have American dominance in space”, August 9, 2018. https://www.youtube.com/watch?v=9xEkyT7XrxQ

2. Bulls of Donation (1493), Wikipedia (Three papal “Bulls of Donation”- Inter Caetera,Eximiae Devotionis,and Inter Caetera (2)- were issued May 3-4, 1493, and a fourth – Dudum Siquidem– on September 26, defining the terms of the “donation” of lands to each country). https://en.wikipedia.org/wiki/Bulls_of_Donation#cite_note-verzijl-1

3. The Treaty of Tordesillas (1494), Wikipedia.https://en.wikipedia.org/wiki/Treaty_of_Tordesillas

4. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (The Outer Space Treaty, 1967), United Nations Office of Outer Space Activities (UNOOSA).http://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/introouterspacetreaty.html

5. Lunar Plaque, Wikipedia.https://en.wikipedia.org/wiki/Lunar_plaque#cite_note-Moon_Flag-1

6. Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (The Moon Treaty, 1984), UNOOSA.http://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/intromoon-agreement.html

7. Executive Order on Encouraging International Support for the Recovery and Use of Space Resources, The White House, April 6, 2020.

https://www.whitehouse.gov/presidential-actions/executive-order-encouraging-international-support-recovery-use-space-resources/

8.NASA, The Artemis Accords (2020).https://www.nasa.gov/specials/artemis-accords/index.html

9. “Australia would be obliged to withdraw from the Moon Treaty if it accepts an offer to join the Accords.” Mark Whittington, How the United States plans to make space exploration pay, The Hill, April 26, 2020.https://thehill.com/opinion/technology/494730-how-the-united-states-plans-to-make-space-exploration-pay?fbclid=IwAR3lwrIV43fPX6T7lMDFC9tilnzZiBdidgUEAVLzNsTl6FLBnGtInT1xWMI

10. “States shall authorize and continually supervise all lunar activities of their nationals in order to ensure compliance with international law.” Moon Village Association,Moon Village Principles Issue 2 (draft), March 5, 2020. https://moonvillageassociation.org/moon-village-principles-mvp-issue-2-draft-public-consultation-opens/

11. David Choi, ‘Exactly what President Trump wants’: Democratic governors are shunning Trump’s calls to ‘dominate’ protests using military forces, Business Insider, June 1, 2020. https://www.businessinsider.com/state-leaders-shun-trumps-calls-to-dominate-protests-using-military-2020-6

12. Michelle Hanlon, What is the Moon Treaty and is it still useful?,Filling Space, May 14, 2020.https://filling-space.com/2020/01/17/what-is-the-moon-treaty-and-is-it-still-useful/?fbclid=IwAR2HHd5x6hPQQf7AsuLuVoy5JpY98LxsWEbYofRCjiRwTIqKn8gkMP5tDGc

13. Stutt, Amanda, How Earth-bound Mining Lawyers Think About Space Mining (interview with Scot Anderson, attorney and Global Head of Energy & Natural Resources with the law firm Hogan Lovells in Denver, Colorado),Mining.Com, Jan. 3, 2020.https://www.mining.com/how-earth-bound-mining-lawyers-think-about-space-mining/?fbclid=IwAR0pbCwO20c9W_uEd1Rve0ME_6Aw5Z4XMcqr_MdTSrYr-L-VkB_TkKD5JrI

14. O’Brien, D. Legal Support for the Private Sector: An Implementation Agreement for the Moon Treaty. Adv. Astronaut. Sci. Technol. (2020). https://doi.org/10.1007/s42423-020-00059-w

15. The Hague International Space Resources Governance Working Group, Building Blocks For The Development Of An International Framework On Space Resource Activities (13. Sharing of benefits arising out of the utilization of space resources),November 2019.https://www.universiteitleiden.nl/binaries/content/assets/rechtsgeleerdheid/instituut-voor-publiekrecht/lucht–en-ruimterecht/space-resources/bb-thissrwg–cover.pdf

16.The Hague International Space Resources Governance Working Group, International Institute of Air and Space Law, Leiden University (2019)https://www.universiteitleiden.nl/en/law/institute-of-public-law/institute-of-air-space-law/the-hague-space-resources-governance-working-group

Model Implementation Agreementfor the Moon Treaty (May 2020)

Preface

The provisions of this Agreement and the underlying Treaty shall be interpreted and applied together as a single instrument. In the event of any inconsistency between the Agreement and the Treaty, the provisions of the Agreement shall prevail. After the adoption of the Agreement, any instrument of ratification or formal confirmation of or accession to the Treaty shall also represent consent to be bound by theAgreement. No State or entity may establish its consent to be bound by the Agreement unless it has previously established or establishes at the same time its consent to be bound by the Treaty.

1. Administration; Creation of Agency

The States Parties agree to create as soon as is practicable an agency (“Agency”) to administer the provisions of the Agreement Governing The Activities Of States On The Moon And Other Celestial Bodies (“Treaty”) and this Implementation Agreement (“Agreement”).

2. Licenses for Private Activity; Exploitation of Resources

The States Parties agree to authorize the Agency to issue licenses to non-governmental entities (“NGE”) for the priority exploitation of resources. Exploitation of resources shall include but is not limited to: (a) the extraction of materials, (b) the use of a location for any other commercial activity [e.g., tourism], and (c) the use of a location for non commercial private activity [e.g., science, settlements]. Licenses shall describe the extent, duration, and nature of the activity and shall maximize free access for all in accordance with Article I of the Treaty On Principles Governing The Activities Of States In The Exploration And Use Of Outer Space, Including The Moon And Other Celestial Bodies [the Outer Space Treaty]. Activity by governments is authorized under Treaty Articles 8 and 9.

3. Requirements for License; Adoption of Obligations

The States Parties agree that the Agency shall issue a license for any NGE activity that is authorized and supervised by a State Party to this agreement. The States Parties further agree to require that their nationals (a) accept the public policy obligations of the Treaty as mandated by Treaty Article 14, and (b) share technology as described in Paragraph 5 of this Agreement. The license shall be revoked if, at any time, a licensed NGE fails to comply with its obligations.

4. Public Policy Obligations

The States Parties agree that the public policy obligations of the Treaty and this Agreement include the following:

1. Use outer space exclusively for peaceful purposes (Treaty Article 3.1);

2. Provide co-operation and mutual assistance (4.2); 

3. Honor the Convention On Registration Of Objects Launched Into Outer Space (“Registration Convention”) and inform the public of:

– Activities (5.1)

– Scientific discoveries (5.1)

– Any phenomena which could endanger human life or health (5.3)

– Any indication of organic life (5.3)

– The discovery of resources (11.6)

– Any change of status, harmful impacts of activities, use of nuclear power, and links to websites for specific objects/activities [COPUOS recommendations]

4. Protect the environment and preserve areas of “special scientific interest” such as historic landing sites (7.1-7.3);

5. Allow free access to all areas by other parties (9.2);

6. Honor the Agreement On The Rescue Of Astronauts, The Return Of Astronauts And The Return Of Objects Launched Into Outer Space(“Rescue Treaty”) (10.1)

7. Share technology as part of sharing the benefits of outer space with less technologically advanced countries (4.1-4.2)

5. Sharing Technology; Exclusions

In accordance with Treaty Article 4, the States Parties agree to develop a process for sharing technology on a mutually acceptable basis. Until or in the absence of such a process, the States Parties agree to require their nationals to license technology at no more than fair market value. Technology that is subject to export controls shall be excluded from these requirements.

6. Standards and Recommended Practices; Registry

The States Parties, in consultation with non-governmental entities, agree to develop technology standards and recommended practices for the safe use and development of space resources. Such standards or practices shall not require technology that is subject to export controls. The Agency and/or other designated entities shall maintain the registry of such information and any information relevant to activities on the Moon that is not included in the registry for the Registration Convention that is maintained by the United Nations.

7. Protected Sites; Designation

The States Parties agree to prohibit the use or disturbance of any location on the Moon or other celestial body that is the site of a historical mission that occurred more than 20 years prior to the authorization of new activity pending a final determination of the site’s status as a Cultural Heritage Site. This prohibition applies to the location of any equipment and any evidence of presence (e.g., footprints, tracks). The States Parties agree to develop standards and recommended practices for determining what historical, cultural, or scientific sites should be protected or to designate another entity/process for making such determinations that will be binding on the States Parties.

8. Governance; Fees

The States Parties agree to create a process of governance for making substantive decisions as authorized under Articles 11 and 18 of the Treaty. The States Parties are financially responsible for the Agency, which shall be operated in a cost-effective manner. The collection and use of fees for administration or any other purpose is a substantive decision to be made by the governance process.

9. Dispute Resolution

The States Parties agree that any dispute concerning this Agreement or the Treaty shall be addressed using the consultation process detailed in Treaty Article 15. As an alternative, the States Parties hereby authorize the voluntary use of binding arbitration in accordance with the 2011 Permanent Court of Arbitration Optional Rules for Arbitration of Disputes Relating to Outer Space Activities. The results of such arbitration shall be enforceable underThe Convention on the Recognition and Enforcement of Foreign Arbitral Awards(“New York Convention”).  The Agency shall facilitate and inform the arbitration.

10. Controlling Law; Rights of Individuals, Settlements

In accordance with Treaty Article 12, the States Parties agree that the controlling law at any location shall be the law of the country that authorized/supervises the activity at that location, subject to this Agreement and Treaty. Relations between locations of different nationalities will be governed by current international law, including theConvention On International Liability For Damage Caused By Space Objects(“Liability Convention”), until such time as new substantive rules are created under the governance process in Agreement Paragraph 8, as authorized by Treaty Article 18. Nothing in this Agreement or in the Treaty shall be interpreted as denying or limiting the rights guaranteed to individuals by the Universal Declaration of Human Rights, or the right of settlements to seek autonomy and/or recognition as sovereign nations.

Dennis O’Brien is a member of the International Institute of Space Law and founder of The Space Treaty Project (www.spacetreaty.org). The Project is a member of the Moon Village Association; Mr. O’Brien sits on their Coordination & Cooperation workgroup

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International Law

Carl Schmitt for the XXI Century

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For decades, the scholars of international relations have confused the term “New World order” in the social, political, or economic spheres. Even today, few scholars confuse the term with the information age, internet, universalism, globalization, and  American imperialism. Unlike the complex categorization of the New World Order, the concept of the Old World Order was purely a juridical phenomenon. However, from standpoint of modernity, the term New World order is a purely ideological and political phenomenon, which embodies various displays such as liberal democracy, financial capitalism, and technological imperialism.

In his Magnus Opus “The concept of the Political”, Carl Schmitt lauded a harsh criticism on liberal ideology and favored competitive decisionism over it. This is why according to Schmitt’s critics; the whole text in “The concept of the political” is filled with authoritarian overtones. Nonetheless, the fact cannot be denied that it was the radical political philosophy of Carl Schmitt that paved the way for the conservative revolution in Europe. Even today, his writings are being regarded as one of the major contributions to the field of political philosophy from the 20th century.

Throughout his major works such as “Nomos of the earth”, “the Crisis of Parliamentary democracy”, “The concept of the Political” and “Dictatorship”, Carl Schmitt frequently employs unadorned terms such as ‘actual’, ‘concrete’, ‘real’, and ‘specific’ to apprize his political ideas. However, he advances most of the core political ideas by using the metaphysical framework. For instance, in the broader political domain, Carl Schmitt anticipated the existential dimension of the ‘actual politics’ in the world today.

On the contrary, in his famous work “The Concept of the Political” readers most encounter the interplay between the abstract and ideal and, the concrete and real aspects of politics. Perhaps, understanding of Schmitt’s discursive distinctions is necessary when it comes to the deconstruction of the liberal promoted intellectual discourse. However, the point should be kept in mind that for Schmitt the concept of the political does not necessarily refer to any concrete subject matter such as “state” or “sovereignty”. In this respect, his concept of the political simply refers to the friend-enemy dialectics or distinction. To be more precise, the categorization of the term “Political” defines the degree of intensity of an association and dissociation.

In addition, the famous friend-enemy dialectics is also the central theme of his famous book “The Concept of the Political”. Likewise, the famous friend-enemy distinction in Schmitt’s famous work has both concrete and existential meaning. Here, the word “enemy” refers to the fight against ‘human totality”, which depends upon the circumstances. In this respect, throughout his work, one of the major focuses of Carl Schmitt was on the subject of  “real Politics”. According to Schmitt, friend, enemy, and battle have real meaning. This is why, throughout his several works; Carl Schmitt remained much concerned with the theory of state and sovereignty. As Schmitt writes;

I do not say the general theory of the state; for the category, the general theory of the state…is a typical concern of the liberal nineteenth century. This category arises from the normative effort to dissolve the concrete state and the concrete Volk in generalities (general education, general theory of the law, and finally general theory of the knowledge; and in this way to destroy their political order”.[1]

As a matter of the fact, for Schmitt, the real politics ends up in battle, as he says, “The normal proves nothing, but the exception proves everything”. Here, Schmitt uses the concept of “exceptionality” to overcome the pragmatism of Liberalism. Although, in his later writings, Carl Schmitt attempted to dissociate the concept of “Political” from the controlling and the limiting spheres but he deliberately failed. One of the major reasons behind Schmitt’s isolation of the concept of the political is that he wanted to limit the categorization of friend-enemy distinction. Another major purpose of Schmitt was to purify the concept of the “Political” was by dissociating it from the subject-object duality. According to Schmitt, the concept of the political was not a subject matter and has no limit at all. Perhaps, this is why Schmitt advocated looking beyond the ordinary conception and definition of politics in textbooks.

For Schmitt, it was Liberalism, which introduced the absolutist conception of politics by destroying its actual meaning. In this respect, he developed his very idea of the “Political” against the backdrop of the “human totality” (Gesamtheit Von Menschen). Today’s Europe should remember the bloody revolutionary year of 1848 because the so-called economic prosperity, technological progress, and the self-assured positivism of the last century have come together to produce long and deep amnesia. Nonetheless, the fact cannot be denied that the revolutionary events of1848 had brought deep anxiety and fear for the ordinary Europeans. For instance, the famous sentence from the year 1848 reads;

For this reason, fear grabs hold of the genius at a different time than it does normal people. the latter recognizes the danger at the time of danger; up to that, they are not secure, and if the danger has passed, then they are secure. The genius is the strongest precisely at the time of danger”.

Unfortunately, it was the intellectual predicament at the European stage in the year 1848 that caused revolutionary anxiety and distress among ordinary Europeans. Today, ordinary Europeans face similar situations in the social, political, and ideological spheres. The growing anxieties of the European public consciousness cannot be grasped without taking into account Carl Schmitt’s critique of liberal democracy. A century and a half ago, by embracing liberal democracy under the auspices of free-market capitalism, the Europeans played a pivotal role in the self-destruction of the European spirit.

The vicious technological drive under liberal capitalism led the European civilization towards crony centralism, industrialism, mechanization, and above all singularity. Today, neoliberal capitalism has transformed the world into a consumer-hyped mechanized factory in which humanity appears as the by-product of its own artificial creation. The unstructured mechanization of humanity in the last century has brought human civilization to technological crossroads. Hence, the technological drive under liberal democratic capitalism is presenting a huge threat to human civilizational identity.


[1] Wolin, Richard, Carl Schmitt, Political Existentialism, and the Total State, Theory and Society, volume no. 19, no. 4, 1990 (pp. 389-416). Schmitt deemed the friend-enemy dialectics as the cornerstone of his critique on liberalism and universalism.

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International Law

Democratic Backsliding: A Framework for Understanding and Combatting it

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Democracy is suffering setbacks around the world. Over the past decade, the number of liberal democracies has shrunk from 41 to 32. Today, 34 percent of the global population lives in 25 countries moving in the direction of autocracy. By contrast, only 16 countries are undergoing a process of democratization, representing just 4 percent of the global population. Reflecting these troubling trends, USAID Administrator Samantha Power, during her confirmation hearing, highlighted democratic backsliding – along with climate change, conflict and state collapse, and COVID-19 – as among the “four interconnected and gargantuan challenges” that will guide the Biden Administration’s development priorities.

However, defining “democratic backsliding” is far from straightforward. Practitioners and policymakers too often refer to “democratic backsliding” broadly, but there is a high degree of variation in how backsliding manifests in different contexts. This imprecise approach is problematic because it can lead to an inaccurate analysis of events in a country and thereby inappropriate or ineffective solutions.

To prevent or mitigate democratic backsliding, policymakers need a definition of the concept that captures its multi-dimensional nature. It must include the actors responsible for the democratic erosion, the groups imperiled by it, as well as the allies who can help reverse the worst effects of backsliding. 

To address this gap, the International Republican Institute developed a conceptual framework to help practitioners and policymakers more precisely define and analyze how democratic backsliding (or “closing democratic space”) is transpiring and then devise foreign assistance programs to combat it.  Shifting away from broad generalizations that a country is moving forward or backward vis-à-vis democracy—which makes it difficult, if not impossible, to derive specific solutions—the framework breaks closing democratic space into six distinct, and sometimes interrelated, subsectors or “spaces.”

Political/Electoral: Encompasses the arena for political competition and the ability of citizens to hold their government accountable through elections. Examples of closing political or electoral space range from fraudulent election processes and the arrest or harassment of political leaders to burdensome administrative barriers to political party registration or campaigning.

Economic: Refers to the relationship between a country’s economic market structure, including access and regulation, and political competition. Examples of closing economic space include selective or politically motivated audits or distribution of government licenses, contracts, or tax benefits.

Civic/Associational: Describes the space where citizens meet to discuss and/or advocate for issues, needs, and priorities outside the purview of the government. Examples of closing civic or associational space include harassment or co-optation of civic actors or civil society organizations and administrative barriers designed to hamper civil society organizations’ goals including limiting or making it arduous to access resources.

Informational: Captures the venues that afford citizens the opportunity to learn about government performance or hold elected leaders to account, including the media environment and the digital realm. h. Examples of closing informational space consist of laws criminalizing online speech or activity, restrictions on accessing the internet or applications, censorship (including self-censorship), and editorial pressure or harassment of journalists.  

Individual: Encapsulates the space where individuals, including public intellectuals, academics, artists, and cultural leaders– including those traditionally marginalized based on religious, ethnicity, language, or sexual orientation–can exercise basic freedoms related to speech, property, movement, and equality under the law. Common tactics of closing individual space include formal and informal restrictions on basic rights to assemble, protest, or otherwise exercise free speech; censorship, surveillance, or harassment of cultural figures or those critical of government actions; and scapegoating or harassing identity groups.

Governing: Comprises the role of state institutions, at all levels, within political processes. Typical instances of closing the governing space include partisan control of government entities such as courts, election commissions, security services, regulatory bodies; informal control of such governing bodies through nepotism or patronage networks; and legal changes that weaken the balance of powers in favor of the executive branch.

Examining democratic backsliding through this framework forces practitioners and policymakers to more precisely identify how and where democratic space is closing and who is affected. This enhanced understanding enables officials to craft more targeted interventions.

For example, analysts were quick to note Myanmar’s swift about-face toward autocracy.  This might be true, but how does this high-level generalization help craft an effective policy and foreign aid response, beyond emphasizing a need to target funds on strengthening democracy to reverse the trend? In short, it does not.  If practitioners and policymakers had dissected Myanmar’s backsliding using the six-part framework, it would have highlighted specific opportunities for intervention.  This systematic analysis reveals the regime has closed civic space, via forbidding large gatherings, as well as the information space, by outlawing online exchanges and unsanctioned news, even suspending most television broadcasts.  One could easily populate the other four spaces with recent examples, as well. 

Immediately, we see how this exercise leads to more targeted interventions—support to keep news outlets operating, for example, via software the government cannot hack—that, collectively, can help slow backsliding.  Using the framework also compels practitioners and policymakers to consider where there might be spillover—closing in one space that might bleed into another space—and what should be done to mitigate further closing.

Finally, using this framework to examine the strength of Myanmar’s democratic institutions and norms prior to the February coup d’etat may have revealed shortcomings that, if addressed, could have slowed or lessened the impact of the sudden democratic decline. For example, the high-profile arrest of journalists Wa Lone and Kyaw Soe Oo in December 2017 was a significant signal that Myanmar’s information space was closing. Laws or actions to increase protections for journalists and media outlets, could have strengthened the media environment prior to the coup, making it more difficult for the military to close the information space.

A more precise diagnosis of the problem of democratic backsliding is the first step in crafting more effective and efficient solutions. This framework provides practitioners and policymakers a practical way to more thoroughly examine closing space situations and design holistic policies and interventions that address both the immediate challenge and longer-term issue of maintaining and growing democratic gains globally.

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International Law

Authentic Justice Thus Everlasting Peace: Because We Are One

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The ceasefire in the Israeli-Palestine conflict is a good thing. We thank God for it. Be it between two individuals or institutions or nations or the internal colonial and colonized, war does not do anything except cause more immediate or future mass misery and human destruction. Our continued memories of our interpersonal and international and internal colonial and civil wars and the memorials we erect to remember them recall and record wounds and pains we never get over. 

So it becomes a bothersome puzzle as to why we human beings still just don’t get that war like oppression leads to nowhere except to more human devastation. And we should have learned by now but have not that peacemaking like ceasefires mean nothing without justice.

 It is the reason why I constantly find myself correcting those who stress Peace and Justice.No Justice No Peace is more than a cliche.It is real politic emotionally, economically, socially, and spiritually.

Our American inner cities like those in every continent where culturally different and similar people live cramped impoverished lives and nations and colonial enclaves with such unequal wealth remind us of their continued explosive potentialities when peace is once again declared but with no justice.Everyone deserves a decent quality of life which not only includes material necessities but more importantly emotional and spiritual freedoms and other liberations.Not just the victors who conquer and rule and not just the rich and otherwise privileged.

 And until such  justices are  assured to everyone peacemaking is merely a bandaid on cancerous societal or International conflictual soars which come to only benefit those who profit from wars which are bound to come around again when there is no justice and thus peace such as  family destroying divorce lawyers, blood hungry media to sell more subscriptions , arms dealers to sell more murderous technologies, politicians needing  votes so start and prolong wars, and military men and women seeking promotion while practicing their killing capacities.

So if those of us who devoutly practice our  faiths or our golden moral principles,  let us say always and pray and advocate justice and peace always  as a vital public good  and  do justice then lasting peace in our personal lives and insist that national leaders, our own and others do the same in their conduct of international affairs and affairs with those who are stateless in this global world. 

All such pleading is essential since we are all brothers and sisters in the eyes of God who created all of us  in God’s image as one humanity  out of  everlasting divine love for all of us so we should love each other as God loves all of us  leading to desiring justice and thus lasting peace for each and every one of us.

This is difficult for those in international affairs to understand who take more conventional secular approaches to historical and contemporary justice and peace challenges as if our universal spiritual connectivennes  ( not to be confused with the vast diversity of organized religions)as human beings which makes us all brothers and sisters has no relevance. But if we are going to find true enduring peace we have no alternative but to turn our backs on increasingly useless secular methods which go either way, stressing peace then justice or justice then peace and understand how much we must begin to explore and implement approaches which we look at each other as spiritually connected brothers and sisters in which it is the expectation that peace only comes and lasts when  through the equal enjoyment of justices for every human being, we restore our universal kindred rooted in the everlasting love of God and thus for each other, no matter the different ways in which we define God or positive moral principles which originate in understandings that we human beings in all our diversities are one and thus brothers and sisters.

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