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International Norms On Fair Hearing: The Case of US, UK and India

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Fair hearing and its elements have been a hotly contested issue in administrative law. The right to fair hearing has traditionally been an indispensable aspect of the rules of natural justice. Broadly, the right to a fair hearing contains of several elements including but not limited to the right to a free and fair public hearing, the right to an independent and impartial tribunal and the right to present at an oral hearing. However, while fair hearing norms originates in the Articles 14 and 21 of the constitution in India, USA and UK trace it back to the 5th Amendment of the US Constitution[1] and Section 6 of the European Convention on Human Rights[2] respectively. Thus, the elements of fair hearing in the United States of America, the United Kingdom and India differs owing to these constitutional variations. These differences then evolve owing to diverse judicial interpretations which are based on different factors including expense, time and the need to avoid unduly binding administrative law making.

Despite these differences, fair hearing remains an important requirement in the process of administrative adjudication and ensures that every person being affected by a decision is granted a hearing before he suffers detriment. Thus, it is important that fair hearing remains an internationally recognised civil right while leaving significant discretion to individual states to adopt different procedural norms for practical demand.

This paper aims to understand the elements of fair hearing in three jurisdictions, namely US, UK and India. Accordingly, it first briefly traces the origins of the concept of fair hearing in administrative law and then narrows it down to understanding the evolution of the right in the three countries. Second, the paper makes a detailed scrutiny of the different elements of fair hearing in US, UK and India, observing the similarities and the differences. This involves exploring the judgments and legislative norms laid down in the three countries in this regard. Lastly, it specifically examines the effectiveness of the Indian notion of fair hearing in addressing administrative issues and ponders over the need to borrow from US and UK jurisdictions in this regard.

It concludes by reemphasising the importance of the right to fair hearing and how the differences in the fair hearing frameworks of the three countries points to different administrative demands and patterns.

FAIR HEARING NORMS: ORIGIN AND EVOLUTION ACROSS NATIONS

The norms of natural justice were originally imposed in common law countries as minimum standards of fair decision making so as to ensure that bodies or persons ‘act judicially’. The natural justice norms were later differentiated into two rules: the rule against bias and the right to a fair hearing. However, while European nations focused more on non-procedural aspects such as jurisdiction and correct legal reasoning, the US Supreme Court insisted on understanding fair hearing norms as ‘the essence of the scheme of ordered liberty’[3]. This is difference is elaborated as follows-

The initial academic discussion on fair hearing in the US centred on due process norms. For instance, the courts in Crowell v. Benson[4] and Ohio Valley Water Co.[5] ensured that due process norms imposed traditional procedural restrictions as well as absolute limits on the powers of administrative bodies. On the other hand, the Human Rights Act 1998[6] in UK gives effect to the Article 6 of the European Convention on Human Rights which declares the norms for a fair hearing. The elements of fair hearing in UK originating from Article 6 of ECHR allow tribunals to have considerable discretion in conducting trials and admitting evidences. However, they are expected to uphold “natural justice” norms especially when taking decisions that directly affect the “legitimate expectations” of a government body[7].  

The Indian administrative law assumes audi alteram partem or the right not to be condemned unheard to be an essential constituent of natural justice norms. Accordingly, the right to fair hearing, although not explicitly legislated on, has been firmly grounded in Articles 14 and 21 of the Indian Constitution. Further, fair hearing norms involve several different rights recognised through various judicial precedents i.e. right to notice, right to present case and evidence, reasoned decision etc. The norms have also provided for certain exceptions in the administrative law which form legal grounds for avoiding the application of fair hearing norms. However, there is no straightjacket formula for its determination and it depends on the particular circumstances of an administrative law case[8].

Thus, it may be argued that the fair hearing norms of the three countries have had different origins thus different substantial outputs. For instance, while English and Indian laws do not have general due process requirements for all governmental action affecting private citizens, it is quite the contrary in the US law. Nonetheless, fair hearing maintains its universal applicability in ‘laying duty upon everyone who decides everything’. 

ELEMENTS OF FAIR HEARING IN US, UK & INDIA: VARIATIONS AND DIFFERENCES

Owing to different origins and administrative law advancements, the fair hearing norms of UK, US and India substantially differ from one another. For instance, the US norms demand that a party not only be given opportunity to present evidence, but allowed to know the claims of opposing party as well as meet them. Those who contest government claims in a quasi-judicial proceeding are expected to be informed of government proposals and heard on them before the final order[9]. Similarly, the US law does not guarantee a right to oral hearing under fair hearing norms and decides upon it on a case to case basis.

More importantly, the Constitution of the US, in its 5th Amendment, also does not guarantee a trial type hearing in every governmental infraction of private rights[10]. For these reasons, administrative bodies such as the Civil Rights Commission do not accord the right to confront or cross examine witnesses as they only serve as investigative bodies and make no adjudications.

The present norms on fair hearing in United Kingdom may be traced to the judgment in Ridge v. Baldwin[11] which abandoned analysing the administrative and adjudicatory roles of decision making bodies and turned to the precise content of the complainants’ rights. The judgment declared that the applicant in an administrative law case may rely on prior legitimate expectations that the law will fulfil in the absence of countervailing considerations. This expectation may arise out of any prior course of conduct by the executive bodies in regard to the applicant’s case. The adjudicatory body will then have to determine the exact content of the right through these legitimate expectations[12]. However, the ECHR which is the basis for the UK fair hearing norms lay down three participation principles that are to be necessarily complied with. These are the principle of respectful treatment, the ‘equality of arms’ norm and the adversarial principle.

In India, the concept of fair hearing is a fairly elastic one and may not be contained within any precise definition. Thus, there are no indispensable standards of reasonableness that have to be complied with except that the conscience of the court should be satisfied that the person who will be affected by a decision has had a fair chance of convincing the particular authority[13]. However, the Supreme Court of India has also clarified that the principles of natural justice demand that a minimum fair procedure be always followed. This minimum fair procedure is, however, for the court to determine based on the particular facts and circumstances of the case. Nonetheless, the court has through judgments such as Maneka Gandhi v. Union of India[14] espoused fairness jurisprudence in regard to the civil rights of a citizen. Accordingly, some liberal norms for fair hearing that the judiciary has laid down over the years include: decision maker to be above bias, need to state reasons etc.

The United Kingdom, the United States and India all fall in the category of commonwealth nations. However, their legal regimes and fair hearing notions are marked by wide differences. For instance, while the UK law focuses on a limited arena of the norms of natural justice, the US law is embedded in the concept of procedural due process[15]. However, while US makes use of the right to notice and right to be heard to further the basic constitutional guarantees of the protection of life, liberty and property, UK also uses the ‘margin of appreciation’ in ECHR norms to guarantee the same rights[16].

Further, the right to fair hearing in UK is expressly limited by several factors ranging from merits of a case to morals and national security. On the other hand, although there exist no identifiable limits on due process and fair hearing norms in US, the identified purposes of procedural due process and rule of law serve as implicit limits[17].

On a comparison between Britain and India, while Britain has experimented with a right based approach before returning to the basic principle of fairness as a core constituent of fair hearing issues, India has merely made sporadic attempts to disregard statutory stipulations in order to preserve fairness and natural justice procedures.

Additionally, the Indian Supreme Court has stated that the notwithstanding any finality clauses in any act, Articles 136 and 226 allow the judiciary to review a law for violation of natural justice norms[18]. This is in contrast with US law which excludes certain congressional norms from the purview of due process requirements and judicial review. The US also has relaxed norms for attracting fair hearing norms as compared to India. For instance, while the US law allows for its non-application only in non-immediate matters or during subjective applications of the act, the Indian Supreme Court has insisted that audi alteram partem may only be used only in the instances of the violation of liberty or property causing grave injustices[19].

Therefore, it may be conclusively argued that the laws on fair hearing in the US, UK and India are based on entirely different perceptions and have evolved accordingly, thus the vast differences.

INTERNATIONAL FAIR HEARING NORMS AND COMMON LAW TRADITIONS

Notwithstanding the differences between the fair hearing norms in the US, UK and India, there are startling similarities owing to their similar common law origins. The fair hearing norms in all the three countries have constantly strengthened and have expanded the substantive idea of fairness so as to achieve fairer outcomes. This is largely because of the natural law entitlements of individuals that common law traditions have endowed upon the masses. Further, all common law jurisdictions share social policy, tradition and elaborated analogies in various forms. Thus, the right of a man to be given fair opportunity to be heard on what has been alleged against him is a universal principle in all common law jurisdictions and hence, in all three countries, namely US, UK and India[20].

Similarly, common law countries as well as nations falling under the jurisdiction of ECHR i.e. UK, allow quasi-judicial agencies to not completely comply with all the norms of procedural fairness if the affected person has any recourse to a further hearing or appeal. On the question of exceptions to the natural justice norms too, UK and India both use similar factors of time, place and apprehended danger etc. to ascertain their application. However, all the applicable exceptions are merely circumstantial and not conclusive[21].

Further, another common law norm adopted by all the three countries is the requirement for adjudicating bodies to provide reasons for the decisions they make. In India, duty to provide reasons as a requirement of fair hearing norms, even in the absence of statutory provisions, is a judge-made law[22]. In UK, the section 12 of the Tribunals and Inquiries Act, 1946 requires them to provide with reasons only when the parties ask for them. However, there is now a judicial trend for transparency that mandates the administrative authorities to provide reasons in all circumstances[23]. Finally, in US too, Section 8(b) of the Administrative Procedure Act, 1946 mandates administrative agencies to give reasons for their decisions.

Another important similarity between the fair hearing norms is the principle of ‘one who decides must hear’. Accordingly, UK’s House of Lords in Arlidge[24], the Indian judiciary in Nageshwar Rao[25] and the US Supreme Court in Morgan v. United States[26] have made clear that the duty to decide a case cannot be performed by someone who has not heard the arguments or evidence. Thus, unless it unduly complicates administrative proceedings, one administrative body should decide a case from the beginning to the end in all the three countries.

Additionally, the principle of post decisional hearing has been considered to be an exception in all common law jurisdictions, especially US and India. The Indian Supreme Court in H. L. Trehan[27] has clarified that post decisional hearing should not subserve the norms of natural justice and it may only be used in exceptions such as deprivation of life and liberty etc. Similarly, in US, due process requires that fear hearing is ensured with promptitude. Thus, post decisional hearing is allowed only in the case of extreme violations of public interest of impracticability and emergency.

Most importantly, in all three countries, principles of natural justice and fair hearing norms are meant to supplement and not alter the law. They are an integral part of the concept of good governance norms and hence, any claim to exclude any particular administrative hearing from the purview of fair hearing norms imposes the burden to prove so on the one demanding such exclusion[28].

Thus, it may be concluded that the UK, US and India respect certain elements of fair hearing as absolutely essential and have incorporated them into the law in different forms. The three countries owe these similarities to their common law origins which have retained some traditions and practices for many centuries.

FAIR HEARING IN THE INDIAN LAW AND THE NEED FOR CHANGE

In India, there is no statutory enactment on the minimum procedures that administrative agencies have to comply with. The vigilance of the judiciary has thus, become the best safeguard for fair hearing and procedural fairness in extremely complicated administrative law cases. This is accompanied by constitutional provisions in Article 311 of the Indian Constitution that provides the right to hearing of a civil servant when he is removed, dismissed or reduction in rank. Accordingly, the person affected by the violation of his civil rights may use constitutional provisions or the concerned statue to argue principles of natural justice without invoking any prejudice or civil consequence. Further, the constitutional affirmation of the natural justice norms by the judiciary has ensured that they are read into every administrative case, subject to exclusions. As the Indian administrative law is largely judge-made, the exclusions to natural justice norms i.e. confidentiality, impracticability etc., have also been developed through judicial precedents only[29].

Additionally, Indian courts have made clear their stance on the effect of any administrative law decision made in violation of the rule of bias. The aggrieved individual or body has the opportunity to accept such decision and it may not be necessarily void. This acceptance of the bias will be deemed to have been done if the party has the conscious knowledge of such a bias[30].

This analysis makes it clear that the Indian administrative law has various elements of fair hearing that are unique to the nation in different ways. There are little determinable standards on what fair hearing constitutes and judiciary has preferred to use higher standards in cases of more serious consequences. However, all the fair hearing norms are designed to prevent authorities from doing injustice[31].

The above analysis indicates that the Indian administrative law has its separate and unique needs and the judicial precedents on fair hearings are comprehensive enough to adequately address them. However, the judiciary needs to ensure it keeps certain important principles on fair hearing in mind. For instance, the inherent human dignity of persons before the tribunals be respected, they be entitled to consult and represented by a legal representative and provided adequate opportunity to present their case, among others. 

CONCLUSION

The elements of fair hearing in the United Kingdom, the United States and India have originated and evolved according to the individual administrative needs of the three nations. For instance, while US law solely insists on due process norms based in the 5th amendment, the UK and Indian laws are equally focused on technical administrative requirements such as the legal eligibility of a body to listen a case. The Indian administrative law is in its infant stage and thus has witnessed the judiciary espousing hitherto unused natural justice norms. However, these fair hearing norms have also been borrowed from and are a combination of the common law traditions which encompasses the US and UK law.

The common law origins of the three countries’ fair hearing norms have ensured that these reverenced certain principles irrespective of jurisdictional constraints. Thus, there is a stark similarity between them in terms of the post decisional hearings, the deciding body and the need to provide with adequate reasons in relation to the decision rendered. This, in turn, has ensured a consistency in terms of the importance given to the fair hearing norms and the application of administrative law in the three nations.  

Thus, it may be argued that the fair hearing norms in the three countries are marked by many similarities. However, the different nature of the jurisdictions under which the authority is usually conferred to the administrative bodies in the three nations is varied, thus leading to many differences as well. Therefore, it is important that while they respect the common law traditions that have been a part of their legal cultures, the judiciary of the three nations should render administrative decisions while taking into account the character of the rights of the person affected. This will allow the administrative law in these nations to progress as well as retain its core elements.


[1] The Constitution of the United States, 5th Amendment

[2] European Convention on Human Rights, 1953

[3] T. Koompans, ‘Natural Justice Rediviva? The Right to a fair hearing in European Law’ (1992) 39(1) NILR < : http://journals.cambridge.org/abstract_S0165070X00035440> accessed 7 May 2021

[4] Ohio Bell Tel. Co. v. Public Utils Commn, 301 U.S. 292 (1937)

[5] 253 U.S. 287 (1920)

[6] Human Rights Act, 1998

[7] H Davis, ‘The Right to a Fair Hearing’ (Bournemouth 2014) < http://eprints.bournemouth.ac.uk/31096/3/Chapter_7_Beginning_Human_Rights_Law_Author%27s_Text%20%281%29.pdf> accessed 13 May 2021

[8] D.D. Basu, Commentary on the Constitution of India (9th ed., vol 1, LexisNexis India 2014)

[9] Morgan v. United States, 304 U.S. 1 (1938)

[10] Cafeteria & Restaurant Workers v. McElroy367 U.S. 886 (1961)

[11] Ridge v. Baldwin [1964] AC 40

[12] Swati Jhaweri, ‘Right to a fair hearing in administrative law cases’, The Max Planck Encyclopedia of Comparative Constitutional Law (Oct 2016) < : https://ssrn.com/abstract=3175734> accessed 10 May 2021

[13] Ibid 5

[14] Maneka Gandhi v. Union of India, (1978) 1 SCC 248

[15] Nathaniel Nathanson, ‘The Right to Fair Hearing in Indian, English and American Administrative Law’ (1959) 4(1) JILI <https://www.jstor.org/stable/43949624> accessed 10 May 2021

[16] Ola Johan Settem, Applications of the Fair Hearing Norm in ECHR Article 6(1) Proceedings, (Springer International Publishing Switzerland 2016)

[17] Edward Rubin, ‘Due Process and the Administrative State’ (1984) 72(6) CLR < https://heinonline.org/HOL/LandingPage?handle=hein.journals/calr72&div=50&id=&page=> accessed 2 May 2021

[18] Lydia Kerketta, ‘Audi Alteram Partem: The right to a fair hearing’ (Legal Services India) <http://www.legalservicesindia.com/article/1860/Audi-Alterem-Partem-Right-to-fair-hearing.html> accessed 14 May 2021

[19] Ibid 5

[20] Ibid 9

[21] Ibid 12

[22] M.J. Sivani v. State of Karnataka, (1995) 6 SCC 289

[23] S A de Smith, ‘The Right to a Hearing in English Administrative Law’ (1955) 68 Harv L Rev 569

[24] Local Government Board v. Arlidge [1915] AC 120 [HL]

[25] Gullapalli Nageshwar Rao v. A.P. State Transport Corpn., 1959 Supp (1) SCR 319

[26] Ibid 6

[27] H.L. Trehan v. Union of India, (1989) 1 SCC 764

[28] I. P. Massey, Administrative Law (8th ed. Eastern Book Company, 2012)

[29] Ibid 5

[30] Ibid 25

[31] P. Leelakrishnan, Mini S. ‘Procedural Fairness in Administrative Decision Making’ (2017) 59(4) JILI < : https://www.jstor.org/stable/10.2307/26826613> accessed 6 May 2021

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International Law

An interview with Joel Angel Bravo Anduaga: Are international organizations still relevant?

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With recent developments in the international arena, and ghost conflicts from the past exacerbating contemporary global issues, it is inevitable to question what is happening with international organizations in different regions across the globe. Joel Bravo shares his insights about the importance of international organizations nowadays. Mr. Bravo is an international affairs practitioner with more than twenty years of experience managing design and implementation of strategies aimed at institutional strengthening and governance. Joel is a former electoral adviser for the United Nations to Ivory Coast (West Africa) and Timor-Leste (South-East Asia), respectively. Currently, he is a PhD candidate in Processes and Political Institutions at the University Adolfo Ibañez in Chile and a Professor at the Tecnologico de Monterrey University in Mexico. His ample experience in the field of international affairs as well as his theoretical and practical knowledge and expertise in international organizations, is crucial to help us understand the current state, challenges, and opportunities organizations faced by ongoing international conflicts.  

What is the current role of international organizations?

For starters, Joel Bravo made it clear that is very important to take into account the period we talk about when explaining the role of international organizations because different periods in time have called for different roles. There must be a differentiation between what these organizations should do and what they can do. There are two levels of analysis towards them. First, the operational level which entails the everyday actions. Second, what the mass media portrays the actions of the organizations to be. There is a lot of speculation in the media about whether the United Nations (UN) works or if the North Atlantic Treaty Organization (NATO) has a fair agenda, however in the operational sense they still work every day. Hence, the true answer lies within the background and the essence of each organization; circumstances and the purpose of each one are key.

From your personal experience in the peace missions of the Ivory Coast and Timor-Leste, what is your opinion about the influence of international organizations when it comes to conflict resolution?

To begin with, Mr. Bravo explained that the interests of world powers and regional powers are crucial factors. In both cases mentioned, it logically depended on the context of the countries directly involved and the external countries as well. So, it is a mix of variables that must be considered to see what the influence of an international organization in these situations truly is. Meanwhile, in Ivory Coast, at some point, the peace mission led to elections after a certain time; the peace operation from the Security Council was one of accompaniment. In contrast, the mandate that was held in the different missions in East Timor gave the United Nations more power, not only to organize the elections from a logistical and operational point of view, but also to make political decisions.

How do international organizations influence the exercise of democracy?

Joel Bravo shared that sometimes democracy can be seen simply as a concept and other times as a system or a way of living; it stretches and lengthens according to conditions and needs. Elections are a clear example of this. In the case of Ivory Coast, the efforts to hold elections started in 2005 and did not happen until 2010 because there were no appropriate internal or external conditions. On the other hand, in East Timor in 1999, when the referendum was held and then the presidential elections occurred, it was because there were conditions to do so. Additionally, it is crucial to understand what as well the underlying interest of each international organization is: to hold elections first, and then pacify the country, or pacify the country first then hold elections. Thus, the process of adaption also proves to be a strong challenge. Many factors must be taken into consideration to have a successful democracy in practice and not only in theory, understanding democracy in a broad sense and not simply from the electoral perspective.

Do you consider that international organizations are essential so that the citizens of a country can fully exercise their rights and freedoms? Why?

Initially, Mr. Bravo began explaining the difference between international organizations being essential or necessary. He claims they are not essential but rather necessary, because in many cases there have been accusations of international organizations working in favor of specific interests and being co-opted by world powers. Nonetheless, specifically for the citizens, with the idea of liberal democracy in mind, non-democratic countries would definitely need more the support of international organizations. Yet here we come to a paradox, because if a country is not democratic, thinking for example of North Korea, it is not going to allow an organization to carry out supervision, both in internal and external matters. Then, yes, the presence would probably become essential, but it is not decisive. On the other hand, these matters should be dealt with carefully because, sometimes, the media places excessive responsibility on international organizations. It is true that they help countries, and provide validation, but, at the end of the day, they are still constrained by the context and environment of each case.

Are international organizations accountable?

All organizations, or at least the most important and most robust have internal instruments, instances of accountability, of transparency; to a certain extent they self-monitor. Nevertheless, for example, security organizations such as NATO, due to their nature it is difficult for there to be proper transparency because it would be a matter of national security for the members and the region. It depends on the organization, there are some that can be more controlled. There are some that are highly questioned, for instance, the International Monetary Fund or the World Bank, both which possess control mechanisms, but the question is who determines those mechanisms. Before the West was the main axis for how accountability is and is delivered; it was not questioned because there was no counterpart. China and Russia are now acting as a counterpart and there is a questioning of that order.

What impossibilities can international organizations have that do not allow them to operate as they are expected to do so in theory?

First of all, the nature of each organization is key. Nation-States are the first and focal factor. Anyhow, any international organization also considers at least two other variables, two other types of actors: economic interests represented by the companies that do lobbying and organized civil society; both of which influence decision-making and public opinion, more so in this age of social networks and cyberspace. The word international is now set too short, it would be better to called them world organizations, global organizations or regional organizations but speaking in terms of international continues to think of the Nation-State as the center, constraining its potential.

With new international conflicts developing, how does the role of international organizations change? Are they still relevant?

From a traditional point of view, the Russian-Ukrainian conflict logically has relevance, and it has been proven that international organizations sometimes fall short. Thinking, for example, of the United Nations, NATO and the Organization for Security and Cooperation in Europe (OSCE), which to a certain extent could not have prevented the conflict but do have a leading role. On the contrary, if these new conflicts are unknow territory, for example, what happens in the cyberspace, then international organizations are falling behind. Current conditions are shaping up to a hyper-specialization of international organizations. They are becoming increasingly technical, focusing on what needs fixing and working to agree on very specific issues. For these reasons, international organizations are in a process of adaptation. It would seem like it is still slow due to bureaucratic processes, but their relevance is still present.

What is the future of international organizations?

Mr. Bravo answered that there will be a greater presence of regionalization in international organizations that goes hand in hand with specialization. This occurs for example with NATO: in its name it continues to apparently be regional, but it is expanding.  Also, the creation of new organizations is happening, like AUKUS, which on the one hand seems to be new, but it is a continuation of political dialogue mechanisms that were already established and that are now becoming more structured. Whilst the power structure is not perceived clearer, a global restructuring of international organizations cannot be mentioned. However, what can be mentioned is a sense of greater conformation, reactivation, and strengthening of the schemes. There is a cohabitation to a certain extent of the old, traditional organizations that come from the second post-war period that have been adapting, with the new problems and the new-old problems that evolved. Especially technology, social networks and the internet have a lot to do with these transformations.

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The Noble Nobel

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One of the most coveted awards in human history, the Nobel Prize was created by the last will and testament of Alfred Nobel, inventor of the “dynamite”. These are essentially personal awards from his private estate but has since evolved into something much larger. All the Nobel Prizes are awarded in Sweden except for the Peace Prize given in Norway. Alfred Nobel flourished during the Industrial Revolution, when the United Kingdoms of Sweden and Norway were still together, amassing his fortune making military weapons. Some argue that these prizes were posthumously conceived to improve his reputation.

Nobel Prizes are awarded in the fields of Chemistry, Physics, Medicine, Literature, and the most coveted, the Peace Prize. In his will, Alfred Nobel characterized the Peace Prize to be given “to the person who has done the most or best to advance fellowship among nations, the abolition or reduction of standing armies, and the establishment and promotion of peace congresses”.

More than a century later, has the Nobel Peace Prize lost its luster?

The Norwegian Nobel Committee, a five-member committee appointed by the Parliament of Norway chooses the recipient. Interestingly, despite being appointed by Parliament, the committee is a private body tasked with awarding a private prize. Unless the Committee becomes inclusive, it will lose its moral authority in an increasingly divided world.

Russian journalist, Dmitry Andreyevich Muratov, drew international headlines after auctioning off the Nobel Peace Prize he had won last year for a record $103.5 million to aid Ukrainian refugees.

In doing so, he showed a level of responsibility and moral leadership that has unfortunately been lacking in the institution of the Nobel Prize itself.  This auction presents a moment to reflect on the future of the prestigious award.

Since its inception, nearly every winner of the Nobel Prize for Science has been a “white” man – as almost no scientist that were female or of any other ethnicity were deemed worthy enough to win this illustrious award. Not only this, but only four of the 200 winners in the history of the Nobel Prize for Physics have been women. The committee’s nomination and selection processes are reflected by the institution’s lack of diversity, tainting the reputation of a prize intended to celebrate humanity. This matters especially today because moral leadership is needed more than ever.

In these testing times, when the global powers are wrestling against the climate crisis, terrorism, population growth, food insecurity, refugee crisis, religious violence, Islamophobia, racism, and conflicts like the Russia-Ukraine war and its repercussions on world peace, the Nobel committee must demonstrate moral leadership. And it can only do so by redressing its centuries’ old gender and racial disparities against nominees.

The Nobel Prize committee has been on shaky ground in recent times. In matters of war and peace, the stakes are higher. In retrospect, the last two times it selected a head of state were a disaster. In 2009, the committee selected then-President Barrack Obama at the beginning of his presidency. The award was given in the hope that President Obama might change the direction of his country after he had campaigned for the office in part of his opposition to previous heavy-handed military interventions in the Middle East – notably in Iraq. This anti-war sentiment was what the Nobel committee likely honed in on when selecting him for the award.

Yet, President Obama authorized a military surge in Afghanistan and the invasion of Libya. The botched Libya invasion did remove Muammar Gaddafi, but it also helped destabilize the Sahel region, instigating a state of instability and chaos that is still with us today.

The Nobel Committee was on firmer ground when it chose Muratov along with Filipino journalist Maria Ressa “for their efforts to safeguard freedom of expression, which is a precondition for democracy and lasting peace.”

Ressa is considered a brave journalist, but many in the Philippines will say otherwise and even wonder if the award was given erroneously.

Furthermore, in the case of Muratov, it is worth asking if the undisclosed bidder for his Nobel Peace Prize – was, in fact, the Norwegian government. What we know for sure is that Norway recently handed 4 million Euros worth of seized Russian media assets to Muratov.

Cordell Hull, who secured the Nobel Peace Prize in 1945 for his role in establishing the United Nations, was the same person who turned away Jewish refugees fleeing the Holocaust by redirecting their ships to the infamous concentration camps. On 5 June 1939, he returned a ship carrying 937 passengers. Over a quarter of them ended up dying in the Holocaust.

There have been some glaring omissions as well. At least one is worth noting. Indian leader Mahatma Gandhi, one of the most significant persons of our time. Even today he is a byword for peace activism. Yet even he failed to win the Nobel Peace Prize, despite being shortlisted five times. In 2006. the former director of the Nobel Institute, Geir Lundestad, said the most significant omission in the prize’s history was never awarding the peace prize to the Indian political activist Mahatma Gandhi. However, the committee’s Euro-centric inclinations kept him from receiving the prize.

The sad reality appears to be that the Nobel Peace Prize committee blurs the lines between being an independent institution guided by clear moral principles and one that is a realpolitik instrument of Norwegian foreign policy. It was only in 2017 that the committee prevented current members of the Norwegian parliament from serving on the committee. However, the membership of the committee is currently selected by Norway’s Parliament and perhaps not surprisingly includes four politicians. Two of whom are former government ministers.

With Russia invading Ukraine, China making its own bold land grab in the South China Sea, disinformation on the rise, and many democracies in OECD countries facing a populist if not putschist threat, clear moral leadership on the international stage is needed more than ever.

The Nobel Prize Committee, in this context should take several reforms designed to make the organization more representative.

Firstly, the organization should clearly establish itself as a civil society organization – not an arm of Norwegian foreign policy. The presence of former or current politicians on the committee should be limited if not removed entirely. More civil society leaders like human rights experts would go a long way here.

Second, the committee lacks diversity considering it is composed of entirely of people from white, Christian backgrounds and, of course, Norwegian. Why aren’t representatives of Norway’s immigrant communities or even the ethnic Sami people a key feature of its famed instrument of soft power?

Thirdly, the committee should not be afraid to revoke the Nobel Prizes given to individuals who later betray its principles.

Again, these are extraordinary times, and the Nobel Committee is an important institution whose peace prize is closely followed globally. With Western institutions under pressure, the Nobel Peace Prize is an entity worth saving. The choice is Norway’s.

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International Law

Regulate outer space before it is too late

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The war in Ukraine has reached outer space as Russia and the United States lock horns in flag-waving catfightsin the International Space Station, long heralded as the epitome of international co-operation. This is the second international conflict manifesting itself in space in just over a month. A few weeks ago, the collapse of the Kleo Connect joint venture between Europe and China, aimed at producing hundreds of Low-Earth Orbit satellites, highlighted the fragility of the space domain.

These developments are a timely reminder that the EU’s new multilateral space initiatives are not sufficient and need to be accompanied by a durable framework for cooperation and non-conflictual competition in space.

Outer space is a global commons, which means it is in everyone’s interest that new codes of conduct and treaties are implemented to ensure greater collaboration between states and private space actors. So how do we keep the peace in space while still encouraging healthy competition the fuels innovation? The key lies in smart regulation and strong multilateral consensus. Given the intimate connection between space security and terrestrial security, a simple yet compelling principle must guide space security and inter-state relations down here on Earth: if outer space becomes critically unsafe, it will be unsafe for everyone without exception. 


The rules, or lack thereof, that govern space today, are already directly impacting our relations here on Earth. The quest for space supremacy has catalysed the increasingly fraught relations between the U.S., China and Russia, as well as between the UK and the EU, as Brexit forced Britain to leave the EU’s Galileo system.


Competition in the space domain is crucial for the development and improvement of increasingly complex space technologies. However, this unchecked, and potentially conflictual competition, has come hand in hand with an increasingly insecure space frontier. The global race for ever more accurate satellite infrastructure has induced a rise of increasingly hostile cyber operations. The transmission of counterfeit signals, known as spoofing, the intentional interference of signals, known as jamming, hijacking and even direct kinetic attacks are likely to become more frequent as they given the cloak of national security. They are a growing concern for sustainable global security.


Despite its limitations, the Outer Space Treaty of 1967, established over half a century ago, remains the foundation of international space law and is the most important of the UN’s five major space treaties. The lack of a renewed treaty capturing all the technological advancements achieved over the last decades has created a vacuum in the space domain that has been filled by increasing anarchy and narrow unilateral geopolitical goals.


While the 1967 treaty critically prohibits the deployment of weapons of mass destruction in outer space, it does not prohibit the launch of ballistic missiles through space. It also does not prohibit the placement of non-nuclear weapons in space. In short, the treaty does not prevent all forms of escalation, and it leaves many issues unaddressed, particularly in the age of new weapons and cyber technologies. The unwillingness of the signatory parties to develop their space capacities exclusively for “peaceful purposes”, as stipulated in the treaty, has set a precedent for accepting militarised space use, which continues today.


While space infrastructure undoubtedly holds an important role in national defence and security, it also plays a pivotal role in our global economy. Our global communications systems powered by satellites allow us to closely monitor the trillions of dollars’ worth of goods being traded every day. We receive crucial intelligence regarding geological and meteorological developments through our satellites that allow us to thwart natural disasters saving trillions of dollars and thousands of lives in the process. Satellites now also play a decisive role in our ability to monitor and track worrying changes in our climate and environment. More resources need to be allocated into these crucial activities and away from reckless military escalation.


The use of the ISS for national propaganda and the collapse of the Kleo Connect joint venture illustrates that the trust and cooperation needed for rival countries to navigate the space economy are still in short supply. The EU’s new Space Traffic Management initiative aims to develop an EU strategy to ensure the safe and sustainable use of space while preserving the EU space industry’s competitiveness. It is a step in the right direction but it is not enough to defuse tensions in space. Given the critical role of outer space both for civilian and military purposes, a carefully managed, well-regulated and cooperative framework is indispensable moving forward. Gaps in space law, such as over space mining and debris and the role of private actors, will need to be addressed responsibly within international fora with legally binding agreements. Other neglected areas include space debris mitigation, situational awareness and space traffic management rules. The same ethos that spearheaded the successful Nuclear Non-Proliferation Treaty and the Partial Test Ban Treaty must steer our space relations. 

Our advanced societies are becoming increasingly and irreversibly overdependent on outer space in our daily activities. Therefore, any disruption or conflict in outer space, intentional or accidental, will be at the detriment of us all. Regulating space is an urgent priority for the global community – it is high time that it is treated as one.

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