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Is federalism a moat against autocracy?

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The rogues’ gallery of autocratic rulers has been growing for some years now. It is no more an age of much-reviled ‘tinpot’ dictators. Today, we have wolves in sheep’s clothing. The elected autocrats follow a familiar playbook for capturing power and holding on to it. Since the owl of Athena no more spreads her wings as evenings fall, autocratic leaders have grabbed more powers during the Covid-19 pandemic.

We gloated over the global expansion of democracy but didn’t pay sufficient attention to the parallel rise of autocracy. We are currently witnessing what Anna Luhrmann and Staffan I. Lindberg call a “third wave of autocratisation.” It is marked by the tyranny of the executive and a growing phenomenon what Steven Levitsky and Daniel Ziblatt describe as “capturing the referees”.

The elected autocrats use institutional violence and repression but they also seduce, appeal, exert charisma and draw on myths and digital storytelling. It is very much like what Nigerian novelist Chimamanda Adichie writes about “the danger of a single story.” She says, “power not only spreads a story but also makes its ideas persist. Power can be used for malintent, through controlling “how [stories] are told, who tells them, when they’re told, [and] how many stories are told.”

A democrat invents a very different new role when new situations arise. But an autocrat acts both like a prophet and a guru. After all, he/she lives by the myth of a flawless hero. As a poem by Iranian-American poet Kaveh Akbar reads, “my empire made me happy because it was an empire and mine…(it was) cruel and the suffering wasn’t my own.”

Federalism was, for long, considered a moat against autocracy, particularly in large and ethnically, linguistically and culturally diverse countries. It was seen as a valuable tool for mitigating ethnic conflict and for enabling people with divergent ideologies and aspirations to co-exist in the same polity.

Today, federalism is confronting twin attacks from autocratic rule and the Covid-19 pandemic. United Nations Secretary General António Guterres has written how some leaders have used the pandemic to deploy “heavy-handed security responses and emergency measures to crush dissent, criminalise basic freedoms, silence independent reporting and restrict the activities of nongovernmental organisations.”

Federalism, considered the most meaningful constitutional design to prevent authoritarianism, is facing a crisis of faith. It has suffered serious erosion even in well-established federal states like the United States, India and Brazil. Federalism no longer thrills and it has now accumulated a chorus of new sceptics.

Devolution of power is the quintessence of federalism which is intended to empower the state and local governments as also to impede the tyranny of the national government. However, recent experience suggests that the institutional design that most federal states created are not adequate to prevent autocracy at the Centre.

How have federal states fared in dealing with the corona pandemic? Australia’s Lowy Institute has ranked countries handling the Covid-19. The top 10 best performers include only Australia as a federal state. Germany, Canada, India and Brazil hold 55th, 61st, 86th and 98th positions respectively. It appears federal states are outcompeting each other only by degrees of underperformance. The East Asian, South-east Asian and Australasian countries have fared significantly better. Interestingly, some surveys reveal that Canadians distrust both their federal and provincial governments. Brazil and India stand out to be the worst performing federal states.

President Jair Bolsonaro of Brazil has openly attacked federalism as he considers his ministers and bureaucrats to be his vassal. He has frequently flogged state governors for lockdown. He went to the extent of saying, “my army won’t go to the streets to ensure obedience to governors’ decrees.” Its healthcare system has collapsed and as Miguel Nicolelis, professor at Duke University, says, Brazil is facing a “biological Fukushima.”

As far as India is concerned, both democracy and federalism are moving in reverse gear. Federalism is certainly grating and grinding and democracy is fast becoming a festival of hypocrisy.

Even though India is not a textbook federation and under the classic theory of federalism not a federation at all, India was considered a success story. India made a success of its federal polity largely because of its impressive democratic record, the role of its civil society, its institutional strengths and its vibrant political culture.

During the Congress Party rule, federalism remained rather weak. In the words of former Supreme Court judge V.R. Krishna Iyer, India remained “unitary at the whim of the Union and federal at the pleasure of the Centre.” However, today much of the etiquettes of federalism is in tatters. India had never experienced such systematic destruction of its federal structure. The institutionally weak state and local governments have failed to become the sites of resistance.

Majoritarian politics is predatory in nature. The much touted “cooperative federalism” has turned out to be a predatory federalism. Prime Minister Narendra Modi sought to market “cooperative federalism” as the distinguishing feature of his style of governance. The BJP government accepted the 14th Finance Commission Report which favoured greater devolution of funds to States. The states’ share in tax collection was raised from 32% to 42%. But the States soon realized that there was a poisonous sting in the tail.

By a sleight of hand, the federal government expropriated a larger share of revenues than prescribed by the 14th Finance Commission and reduced the states’ share. The government said later it had no money to pay the States their share of Goods and Services Tax (GST) revenues. Cooperative federalism was offered to the states in handy package. Smart packaging has a way of causing eyes to glaze over. India’s cooperative federalism is like the “Ikea Kit” where recipients are expected to assemble the furniture without help and if the furniture is faulty or lopsided, it is the fault of the customer.

What India is left with today is federalism in a frilly apron. Indian federalism always had a bias in favour of the Centre. The chain of command—bureaucracy, law enforcement agencies, supervisory bodies and commissions has, for all practical purposes, collapsed. The Modi government has weakened federalism by “capturing the referees.” It has used institutions to its advantage and disabled impartial adjudicators from performing their roles.

The anti-commandeering doctrine authored by the US supreme court saved American federalism despite Trump’s all-round attack on federal institutions. This doctrine prohibits the federal government from commandeering state governments from imposing coercive duties upon state governments. The US federal government can’t force state governments to implement its policies. It can’t appoint or remove state officials or judges.

When Prime Minister Modi imposed a harsh lockdown at a few hours’ notice in March last year, it sought to convey a message that he stood by the principle ‘Dare to be a Daniel! Dare to stand alone!’ However, India’s patchwork response to the pandemic caused immense hardship for the poor migrants and other marginalised sections of society. While cases began to surge last March, India’s health minister Harsh Vardhan claimed that India had entered the endgame” of the pandemic.

Albert Camus says, “plagues and wars always find people equally unprepared.” India was not only not prepared, it allowed huge election rallies and religious gatherings flouting all norms. That was an open invitation to the virus to strike ferociously. As CBS News put it, “surging Covid cases and lack of oxygen make India living hell”.

With India struggling to cope with the second wave of Coronavirus and the hospitals reeling under shortage of beds and medical oxygen, the reputation of the vaccine superpower is in tatters. India is reaping the bitter harvest of the government’s premature triumphalism and lowering the guard.

Today, India looks like what Guillermo O’ Donnell calls a “delegative democracy” marked by low levels of horizontal accountability. Federalism is not to blame. Federalism as an organising principle is neither the problem nor the answer. It should be judged by the parabola of its uses rather than by the curve of its misuses.

And yet, ‘federalism for me, not for thee” is no federalism. Suddenly, Indian federalism looks like a ‘patchwork quilt.’ The federal government under Modi has worked like an invasive, noxious weed that has rendered the states powerless and vulnerable. The pitfalls of pop federalism or comical federalism could be injurious to democracy.

Ash Narain Roy did his Ph.D. in Latin American Studies , Jawaharlal Nehru University, Delhi. He was a Visiting Scholar at El Colegio de Mexico, Mexico City for over four years in the 1980s. He later worked as Assistant Editor, Hindustan Times, Delhi. He is author of several books including The Third World in the Age of Globalisation which analyses Latin America's peculiar traits which distinguishes it from Asia and Africa. He is currently Director, Institute of Social Sciences, Delhi

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International Law

Omicron and Vaccine Nationalism: How Rich Countries Have Contributed to Pandemic’s Longevity

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In a global pandemic, “Nobody is safe until everyone is safe”, – it is more of true with respect to the current globalized world system. It is said that crisis strikes the conscience and forces the ‘commonality of purpose’ on one another- and a major one in magnanimous scale. But the current Covid-19 crisis seems to have emerged in oddity with this very axiom, of course, due to self-serving, in WHO’s words- ‘self-defeating’ and ‘immoral’, approaches to dealing the pandemic by wealthy countries.

 A new and potentially more transmissible variant of Covid-19 virus, named Omicron by WHO, has been detected in South Africa. With scientists yet to be confirmed about new variant’s epicenter and its likely implication on human immune system, the emergence of Omicron has brought the long-warned case of ‘vaccine nationalism’– a phenomenon in which each nation prioritizes securing ample doses without considering impact on poor ones- to light.

Unheeded to the repeated warnings by scientists and pandemic specialists, many of the world’s richest countries had embarked on a vaccine-acquisition frenzy and hoarded jabs more than their requirements. Some countries have even gone to the extent that they had acquired up to four times what their population needed. Thereby, it has left majority of poor and developing countries, particularly those in global south, unvaccinated, with further risk of the virus being muted into more virulent variants, as in the case of Omicron.

A simple numerical data over vaccination rate across the world exposes the grotesques picture of pandemic recovery divide among the countries and immoral hoarding and hedging efforts on vaccine supplies by wealthy countries. As of now, whereas only 3% of people in low income countries have fully been vaccinated, the figure exceeds 60% in both high-income and upper-middle –income countries. In Africa, the most under-vaccinated and the epicenter of ominous Omicron, only some 7% of its 1.3 billion people are fully immunized.

Given the 9.1bn vaccines already manufactured and 12bn expected by the end of this year, the question is- why does vaccination effort remain so discriminatory and dividing across the regions? The answer, in most part, lies in the ‘pervasive economic inequity’ inherent in initial vaccine-acquisition process. With their enormous capacity to pay out, rich countries, even before pandemic took devastating hold, had pursued a ‘portfolio-approach’ in investing on vaccine development research by pharmaceutical companies- simultaneous investment on multiple ones. In exchange, those countries stroke bilateral deal with each drag company to secure enough prospective vaccine doses to inoculate their respective population several times over.

This absolutist vaccine-acquisition drive of wealthy nations had substantially thwarted the holistic approach taken up by World Health Organization(WHO) under the platform of COVAX, a vaccine sharing program. With the aim of reducing the delay in vaccine allocation to poor and developing countries, and thus ensuring vaccine equity, the multilateral platform didn’t get enough incentives from wealthy ones, since started its journey in April 2020. Both investment and acquisition by well-off countries, having bypassed the COVAX, kept them into the front of manufacturing line, thereby, contributed to the distributional injustice.

‘What starts wrong ends wrong’- initial absolutist approaches in vaccine acquisition started to be manifested in discriminatory distribution of vaccines. Thereby, an amazing scientific breakthrough, development of vaccine in record time, has been offset by awful political policy. In mid-2021, when one portion of world were almost on the track of carefree normalcy, people in bigger portion were struggling to breath. Today, problem is not in production of vaccines, as 2 billion doses of vaccines are being manufactured in every month, rather in the ‘unfairness of distribution’.

Early monopolistic exercise by G20 on acquisition and subsequent stockpile of vaccines has resulted in such galling situation that they have commandeered over 89% of vaccines already produced and over 71% of future deliveries. Consequently, the global inoculation drive, since started, is so unjust that for every vaccine delivered to the poorest countries, six times as many doses are being administered as third and booster vaccines in the richest countries. Adding further to the crisis being escalated, while more than 100 countries, for past one year, have desperately demanded emergency waiver on TRIPs related regulatory restriction on Technologies crucial to pandemic recovery, it has repeatedly been blocked by UK and EU.

Picture is not all-about gloomy with respect to vaccine collaboration but it is quite tiny to the scale of requirements. Rich countries could not deliver on the commitments they did to help poor countries immunize their population. For instance, WHO’s target of having 40% of global population vaccinated by end of this year, through COVAX, seems certainly to fall short largely due to the rich countries failing to deliver on their promise to use their surplus vaccines to immunize the under-vaccinated countries. Far from near, the G7 countries had drastically failed to deliver on their promises made on G7 summit in June. As of last week, USA has delivered only 25%, with further embarrassing arithmetic of EU only 19%, UK 11% and Canada just 5%.

Given the frightening predictions from WHO that another 5 million could be added to the already 5 million death tolls across the world, in the next year or more, it is high time starting a collective endeavor with herculean efforts to inoculate large swaths of unvaccinated people in un-protected areas. Keeping large portion out of vaccination will only make the pandemic endure with no time to end, as virus continues to persist through mutating in un-protected area into a more menacing variant. If so, then again someone else may say, after next the worst wave-We were forewarned- and yet here we are.             

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The Nuclear Weapons Ban Treaty (TPNW): Wishful daydream or historic milestone?

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The Treaty on the Prohibition of Nuclear Weapons (TPNW), adopted in 2017, has entered into force on the 22nd of January of this year and the number of ratifying states continues to grow, with Mongolia being the latest to announce its accession. This positive trend is certainly welcomed with enthusiasm by the Civil Society campaigners and growing number of supporters of this treaty that represents a huge step forward for the global movement to draw attention to the catastrophic humanitarian consequences of any use of nuclear weapons. It would certainly be dishonest to ignore the fact that this new international legal instrument remains controversial, to say the least, for most of the members of the so-called nuclear deterrence community. As preparations are ongoing for the first Meeting of States Parties, scheduled to take place in Vienna on 22-24 March 2022, it is useful to address some of the main doubts and arguments against the treaty.

In this regard, the main criticism is that it makes no sense to support a treaty on nuclear weapons if those states that possess them have not joined nor any intention to join it.  

In order to address this claim, it may be useful to recall that in the case of the Mine Ban and the Cluster Munition treaties, its main promoters and supporters were also states that did not possess those weapons, and that those international instruments also received some harsh criticism for this reason. Despite of this, there is no doubt now that both of those treaties have become remarkable success stories, not only by achieving the goal of approaching universalization, but also by consolidating a general moral condemnation of those categories of weapons. Therefore, the argument that a treaty necessarily needs to be joined by the possessors of the weapons can easily be rebutted. Despite of the current position of the nuclear weapons states, each new ratification of the treaty is not meaningless: on the contrary, it provides the treaty more authority and contributes to the growing pressure on nuclear weapons states to adopt further steps towards nuclear disarmament.

The other major contribution of the TPNW is that it facilitates the process of delegitimisation of nuclear weapons, necessary to finally amend the well-established foundations of nuclear deterrence doctrines. The humanitarian principles that are underlying the treaty are totally incompatible with those doctrines, and therefore are having an impact on them by highlighting the inherent immorality and illegitimacy of nuclear weapons.   

Another argument for the case of ratification is that it provides states the opportunity to support the process of democratization of the global debate on nuclear weapons, as this new treaty has been the result of a very open discussion with active engagement of delegations from all geographic regions and, in particular, of representatives of Civil Society. This is not a minor aspect of this process, but a key element. Indeed, unlike in negotiations of previous international legal instruments, in this era of growing complexity and interlinkages, the main challenges faced by humankind are being addressed by a diverse group of citizens, from all walks of life and regions. Traditional diplomacy is certainly not enough, and in the case of the TPNW, the positive results would clearly not have been possible without the decisive boost provided by the International Campaign to Abolish Nuclear Weapons (ICAN), which was able to mobilize Civil Society and likeminded governments towards the goal of negotiating a nuclear weapons ban treaty. 

While it would be naïve to expect the establishment of the nuclear weapons states to be convinced by the humanitarian narrative and in a foreseeable future to amend its defence and security policies base on nuclear deterrence, the TPNW and its focus on the security of the human being instead of the traditional notion of the security of the state, are already having an impact on the academic and public debates in those states.

The second argument used by its critics is that the TPNW weakens the Non-Proliferation Treaty (NPT).  Actually, this is not only incorrect, the opposite is true. In fact, the TPNW can serve as an initiative to help implement article VI of the NPT, by which parties are committed to undertake to “pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament”. This is of vital importance as the treaty clearly attaches a key role to all parties, and not only to those states that possess nuclear weapons. This commitment has also been reflected in the Final Document of the 2010 NPT Review Conference, and the TPNW can be understood as a reflection of that obligation to contribute to nuclear disarmament by non-nuclear weapons states.

Another common point is that the nuclear weapons industry is too strong and well consolidated and that it would be naïve to pretend that this treaty could actually have an impact on investment decisions.

This pessimism has also been proven wrong. In fact, in 2021, more than one hundred financial institutions are reported to have decided to stop investing in companies related to nuclear weapons production. As a result, the nuclear weapons industry is experiencing a considerable reduction and the trend towards the exclusion of this sector from investment targets is growing steadily. This is not only the consequence from the legal obligations that emanate from the TPNW but a reflection of the devaluation of the public image associated to these industries. As this public image continues to deteriorate, it is likely that this trend will continue and that the moral condemnation of these weapons of mass destruction will be absorbed into the mainstream of society.

Another common misinterpretation is that the TPNW should be understood as an instrument that is only designed to be joined exclusively by non-nuclear weapons states.

In fact, even though the treaty was developed by non-nuclear weapons states, it has been drafted and negotiated with the goal of universal adherence, including, someday, those states that still include nuclear deterrence in their national security doctrines. In particular, the TPNW establishes a clear set of steps for nuclear weapons states in order to eliminate their arsenals of nuclear weapons. Specifically, within 60 days after the entry into force of the treaty for a state party that possesses nuclear weapons, that state must submit a plan for the complete elimination of its nuclear weapons to a competent international authority that has been specially designated by states parties. The treaty also includes a process to designate a competent international authority to verify the elimination of nuclear weapons by a state before acceding to the treaty, and a process for states parties that maintain nuclear weapons in their territories for the removal of these weapons and report this action to the United Nations Secretary General.

It is also noteworthy that this treaty obliges states parties to provide adequate assistance to victims affected by the use or by testing of nuclear weapons, and to take the necessary measures for environmental rehabilitation in areas contaminated under its control. This dimension of the treaty constitutes an important contribution both to the protection of human rights of victims and to the now inescapable obligation to protect the environment, which are aspects that are not covered by the Comprehensive Nuclear Test Ban Treaty (CTBT). This certainly does not affect the value and vital role of this key instrument of the nuclear disarmament and non-proliferation regime but complements it by addressing the fundamental issue of environmental reparation.

The main challenge now is now not only to achieve a wider universality of the TPNW, but to engage more stakeholders and create awareness on the urgency of bringing pressure on the nuclear weapons states to finally move toward nuclear disarmament. In this regard, Civil Society initiatives have been promoting engagement of members of grassroots, parliament, the media and city governments, particularly in nuclear weapons states, which has had impressive results, with hundreds of local governments expressing support for the treaty and generating discussion among the population. These initiatives serve the purpose of putting pressure on politicians and especially, to facilitate a discussion within democratic societies about the sustainability and risks involved in the possession and harboring of nuclear weapons.

Indeed, the TPNW has a long way to go and overcome many obstacles to achieve its objective, but in its first year of entry into force, it has already had an undeniable impact on the nuclear disarmament and non-proliferation debate, despite the expected skeptics and efforts to ignore its existence stemming from the still powerful nuclear deterrence establishment. Most of its technical experts, academics and government officials honestly believe that nuclear weapons have helped to guarantee peace and stability to the world and therefore should continue as the foundation of international security doctrines. These well-established ideas have been based on the questionable assumption that the deployment of these weapons have avoided war and can guarantee permanent peace for all nations. This has served as a sort of dogmatic idea for many decades, but recent research results have shown that the risks involved are significantly higher and that the humanitarian consequences would be catastrophic for every citizen of the planet. The humanitarian impact paradigm, which underlies the process that has inspired the TPNW, has provoked a tectonic shift in the nuclear disarmament and non-proliferation debate, which had been limited to the NPT review conferences with its often-frustrating results. Certainly, the persistence of the different approaches needs to be addressed in a more constructive discussion among the supporters of this treaty and the deterrence community.

Finally, the fact that the first meeting of states parties of the TPNW will take place in Vienna is very meaningful as Austria has been one of the leading nations in this process, particularly in drafting the Humanitarian Pledge to fill the legal gap for the prohibition of nuclear weapons, which has been a decisive step towards the treaty that has already fulfilled that commitment. Despite of all the difficulties and the persistence of significant resistance, the active and committed participation of diplomats and Civil Society representatives, under the leadership of Austria, allow to envisage that this first meeting will help to strengthen the treaty and move forward in the long and burdensome road to the final objective of achieving a world free of nuclear weapons.

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Regional Mechanisms of Human Rights: The Way Forward: Case of South Asia

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Long debates have evolved since the 1948 UDHR as to whether human rights should always be perceived as universal, or whether they need to be regarded as contextual on regional and local cultures. If we look at  Art. 2 of the UDHR the rights apply “with no distinction given to their race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”. Still in spite of this, the universality has been criticized by some, who argue that by claiming human rights are universal, we ignore and undermine the cultural differences that exist between societies in different parts of the world

Historically, the first written evidence of human rights was found in the famous universal declaration in 1215 A.D., popularly known as the ‘Magna Carta’. Along with the same, there were many thinkers like Hobbes, Locke Rousseau, Milton, and Voltaire who argued in favour of  individual rights and with passage of time and the conclusion of two world wars, the United Nations Organisation came into being on 24th October 1945 that replaced the League of Nations.

Further, the Universal Declaration of Human Rights that was established in 1948 and is considered a milestone in the field of human rights whose primary aim is to protect and promote human rights. In contrast to the said aim, the critics of the UDHR label it as a Western-biased document that fails to account for the cultural norms and values which exist in the rest of the world. It is only with regard to a group of certain core rights like that are listed in the human rights treaties as ‘non-derogable rights’ or considered jus cogens such as the prohibition of the use of force, the law of genocide, the principle of racial non- discrimination, crimes against humanity, and the rules prohibiting trade in slaves and piracy that consensus among nations exist.

The core of the issue is that a group of nations are seeking to redefine the content of the term “human rights” according to their own social and cultural experiences as they argue that the principles enshrined in the Universal Declaration reflect Western values and not their own. These countries sign many international human rights treaties and conventions, but the use of reservations and internal obstacles

jeopardize their implementation. Such claims of social and cultural differences in the past have been dismissed by the western countries and the USA who dismissed such claims as being a screen behind which authoritarian governments can perpetuate abuses.

Coming to South Asian Nations, there does exist violations of human rights in India as there is an absence of any regional framework that can hold the government responsible for the acts committed or provide a forum to individuals to appeal against the decisions of the Courts like the one existing under European Court of Human Rights. To illustrate, the aspect of women’s rights needs consideration and improvement in the daily lives of women to meet the gap between formal rights and actual implementation of the same.  What this means is that there exists a necessity to focus on translating the universal values enshrined under International human rights to local contexts that is the only option available to human beings irrespective of the geographical location to the ideals of equality and freedom from discrimination

In this context, there arises a need for establishing regional and sub- regional human rights codes or conventions. This has also been recognized by the United Nations since in absence of a universal approach that the South Asian states refuse to adopt, it is through regional initiatives that the motives of human rights could be achieved. The need for a regional initiative becomes even more significant because unlike Europe, America, and Africa there is no inter-governmental regional system for human rights protection in South Asia. In practice, the reason cited is that the human rights debate revolves around the South Asian views or perspectives. Although the South Asian governments have ratified international human rights instruments, they fail to reflect in the national constitutions or laws of most governments.

The fact that human rights will enjoy certain specificity in South Asia, still to be elaborated and applied, however, does not mean less for the universality of human rights. The reason being that the international human rights do not originate from merely one homogenous European value system or culture, but from various heterogeneous sources, some of these existing in the long history of South Asia. Thus, human rights are universal not only in their applicability to all human beings in every corner of the world, but are also universal because they originated from every corner in the world.

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