Global Legalism by Internationalism GP

PROCEEDINGS OF THE JURIS EN CONFERENCE ON INTERNATIONAL LAW, 2020

GLOBAL LEGALISM VOLUME 1 (2020)

Abhivardhan Editor-in-Chief

OUR PARTNERS

FOR THE JURIS EN CONFERENCE ON INTERNATIONAL LAW, 2020

International School of Business & Media, Pune World Mediation Organization Alexis Foundation

Indian Society of Artificial Intelligence & Law Risis Legal Easychair.org Katcheri.in Law Mentor stay22 Legge Rhythms

Global Legalism Volume 1 Proceedings of The Juris En Conference on International Law, 2020

All rights reserved. No part of this publication may be reproduced, distributed, or transmitted in any form or by any means, including photocopying, recording, or other electronic or mechanical methods, without the prior written permission of the publisher and the authors of the respective manuscripts published as papers, except in the case of brief quotations embodied in critical reviews and certain other noncommercial uses permitted by copyright law. For permission requests, write to the publisher, addressed â&#x20AC;&#x153;Attention: Permissions Coordinator,â&#x20AC;? at the address below.

ISBN: 978-93-5396-497-9 (Online) Printed and distributed online by (AbhiGlobal Legal Research & Media LLP) in the Republic of India. First edition, Volume 1, 2020. Price (Online): 300 INR

AbhiGlobal Legal Research & Media LLP, 8/12, Loyal Road, Mayo Hall, Civil Lines, Allahabad, Uttar Pradesh, India - 211001 The publishing rights of the papers published in the book are reserved with the respective authors of the papers and the publisher of the book. The copyright of all the papers are reserved with the authors of the respective papers.

For the purpose of citation, please follow the format for the list of references as follows: 2020. Global Legalism. Prayagraj (Allahabad): AbhiGlobal Legal Research & Media, 2020. 978-93-5396-497-9. You can also cite the book through citethisforme.com (recommended).

For Online Correspondence purposes, please mail us at: global@internationalism.co.in | info.internationalism@gmail.com For Physical Correspondence purposes, please send us letters at: 8/12, Patrika Marg, Civil Lines, Allahabad, Uttar Pradesh, India - 211001

Preface The book ‘Global Legalism’ is a flagship publication series encouraged by the team of The Juris En Conference on International Law, 2020. Our team has reviewed the best papers we had received, and they are now incorporated into the First Annual Volume of the series of publications as a part of the Jurisprudential Entrepreneurship Project (often known as the Juris En Project). I would like to extend my greetings to the Editorial Board for their apt contributions to review and approve the submissions. The following members of the Board have been supportive in the due process, and we hope to achieve more avenues through the Juris En Project: • Bulbul Khaitan, Doctoral Candidate, University of Hamburg, Germany • Quazi Omar Foysal, Lecturer in International Law, American International University, Bangladesh • Sara Arafa, ICRC Protection Delegate in Beirut, Lebanon • Luisa Fernanda Cañas Arandia, Professional in International Human Rights Law • Arushi Alka Bajpai, Research Associate, Jindal Global University, India • Dr Koagne Zouapet Apollin, PhD, University of Geneva, Switzerland • Nivedita S, Research Associate, Centre for International Law, National University of Singapore, Singapore • Udomo Ali, Founding Member, International Law and Technology Interoperability Association, Nigeria • Shobhitabh Srivastava, Tamil Nadu National Law University, India • Dr Ritu Agarwal, Amity University Lucknow Campus (Guest Consulting Editor); I would like to extend gratitude to Mr Pratejas Tomar, the Director, Executive Affairs for The Juris En Conference on International Law, 2020, Mr Aditya Singh, the Chief Advisor of the Conference, our Mr Kunal Mandal & Mr Bhaskar Kumar, the Advisory Strategists for the Conference, and Mr Sarthak Roy from CHRI, India & Mr Philippe Lefevre from the Institute for a Greater Europe, UK & Belgium for their advisory role in the Conference. Lastly, I would like to express my gratitude to my team, i.e., the Directors of Human Resources & Management for the Conference, Ms Vrinda Aggarwal & Ms Rasika Joshi for their logistic strategies, the Director of Content Curation and Innovation for the Conference, Mr Utkarsh Mishra & the members from the Indian Society of Artificial Intelligence & Law, Alexis Foundation and the International School of Business & Media, Nande Campus, Pune, for their support.

Abhivardhan Editor-in-Chief, Volume I.

Index 1

International Humanitarian Law & International Criminal Law

1.1

An Analysis of "Forced Marriage" in the Context of Sierra Leone: How to Prosecute Mini Saxena, National Law University Delhi, India

1.2

Progression of the defence of Superior Orders and Prescription of Law Sangeet Khurana, Symbiosis Law School, Pune, India

1.3

Exclusion Clauses in Refugee Law: The Developments and Detachments from International Criminal Law Yifang Ye, Hitotsubashi University, Japan

International Law & Technology

2.1

Regulating Dual-Use Space Objects in an Era of Commercialization Nivedita Raju, McGill University, Montreal, Canada

2.2

Misuse of Cyberspace by Unauthorized Organisations : A Critical Study on Acts of Cicada 3301 and Anonymous (Anons) Hemant Prasad, Hidayatullah National Law University, Raipur, India

2.3

Commercialization of Space and the Need for Regulation of Actors in Outer Space Keertana Venkatesh, Gujarat National Law University, Gandhinagar, India

International Human Rights Law & International Refugee Law

3.1

Natural Resource Justice: Distributive or Rights-based Approach? Dr Petra Gumplova, Max Weber Kolleg, University of Erfurt, Erfurt, Germany

3.2

Justice to Indigenous Peoples Nikhil Dongol, Kathmandu School of Law, Kathmandu, Nepal

3.3

Universalism versus Relativism - Legacy of Empire and Potential for Change Sulekha Agarwal, The Graduate Institute, Geneva (IHEID), Switzerland

3.4

Evolution of Refugee law in Greece and Turkey in the context of Syrian refugee crisis Christina Velentza, Koc University, Mirekoc, Istanbul, Turkey

International Trade Law & International Economic Law

4.1

The fourth sector of the economy as part of the new corporate social responsibility global paradigm Vivian Rodrigues Madeira da Costa, University of Seville, Spain Carolina Rodrigues Madeira da Costa, University of Castilla La Mancha, Spain Diogo Luiz Chagas Santos, University of Seville, Spain

4.2

Anti-Dumping Agreement: A Change with no Change Ishita Thakur, Symbiosis Law School, Noida, India Trushita Srivastava, Symbiosis Law School, Noida, India Nandini Agarwal, Symbiosis Law School, Noida, India

An Analysis of "Forced Marriage" in the Context of Sierra Leone: How to Prosecute Mini Saxena National Law University Delhi, India mini.saxena@nludelhi.ac.in

Abstract. In 2004, the Special Court for Sierra Leone (SCSL) became the first ever war crimes tribunal to charge defendants in two trials (the Revolutionary United Front Case and the Armed Forces Revolutionary Council Case) with “forced marriage.” In addition to charging the defendants with “sexual slavery” under Article 2(g), the Tribunal charged them with “forced marriage” as a distinct crime against humanity under Article 2(i) of the Tribunal’s Statute (“other inhumane acts”). While the SCSL Trial Chamber in the RUF Case upheld the “forced marriage” charge, the SCSL Trial Chamber in the AFRC Case dismissed the “forced marriage” count on grounds of redundancy, concluding that the crime was subsumed in “sexual slavery”. The decisions produced strongly worded dissents. Justice Doherty was of the opinion that “forced marriage” should be recognized as a distinct crime. Justice Sebutinde, separately concurring, relied on the expert report of Mrs. Bangura, a social activist and women’s rights expert in Sierra Leone who reported on the incidence of “forced marriages” during the Sierra Leonean conflict and all the different elements which the practice entailed, on the basis of widespread empirical research and field study. The SCSL Appeals Chamber took Justice Doherty’s view and reversed the majority in the AFRC Trial Chamber, upholding the charges of “forced marriage” as a separate crime against humanity. But the soundness of the Appeals Chamber’s decision was subsequently questioned in the Charles Taylor Judgment, in which the Trial Chamber went out of its way to assert in dicta that forced marriage was not a specifically indictable crime against humanity. This paper argues that in future cases with facts similar to those in Sierra Leone, the ICC should not recognize “forced marriage” as a distinct crime against humanity under Article 7(1)(k), because it is prosecutable under other crimes enumerated under Article 7. Keywords: International Human Rights Law, Feminist Jurisprudence, Forced Marriage.

Introduction

In 2004, the Special Court for Sierra Leone (SCSL) became the first ever war crimes tribunal to charge defendants in two trials (the Revolutionary United Front Case and the Armed Forces Revolutionary Council Case) with the crime of “forced marriage.” In addition to charging the defendants with “sexual slavery” under Article 2(g), the Tribunal charged them with “forced marriage” as a distinct crime against humanity under Article 2(i) of the Tribunal’s Statute (“other inhumane acts”). While the SCSL Trial Chamber in the RUF Case upheld the “forced marriage” charge (Prosecutor v. Sesay, Kallon and Gbao, Trial Judgment, SCSL, para 168 (May 2, 2009) [RUF Trial Judgment]), the SCSL Trial Chamber in the AFRC Case dismissed the “forced marriage” count on grounds of redundancy,

concluding that the crime was subsumed in “sexual slavery” (Prosecutor v. Brima, Kamara and Kanu, Trial Judgment, SCSL, para 714 (Jun. 20, 2007) [AFRC Trial Judgment]). The decisions produced strongly worded dissents. Justice Boutet dissented in the RUF Trial judgment, while Justice Bankole Thompson separately concurred. But more importantly, and perhaps more controversially, in the AFRC Trial Chamber, Justice Sebutinde separately concurred, while Justice Doherty partly dissented on the counts of sexual slavery and “forced marriages”. Justice Doherty was of the opinion that “forced marriage” should be recognized as a distinct crime. Justice Sebutinde relied on the expert report of Mrs. Bangura, a social activist and women’s rights expert in Sierra Leone who reported on the incidence of “forced marriages” during the Sierra Leonean conflict and all the different elements which the practice entailed, on the basis of widespread empirical research and field study which she had conducted, especially among women who were victims of the crime, their families etc. This report was used throughout the AFRC case, in both the Trial Chamber and the Appeals Chamber. Ultimately, the SCSL Appeals Chamber took Justice Doherty’s view and reversed the majority in the AFRC Trial Chamber, upholding the charges of “forced marriage” as a separate crime against humanity (Prosecutor v. Brima, Kamara and Kanu, SCSL, Appeals Chamber, 22 February 2008, para 195 [AFRC Appeals Chamber Decision]). But the soundness of the Appeals Chamber’s decision was subsequently questioned in the Charles Taylor Judgment, in which the Trial Chamber went out of its way to assert in dicta that forced marriage was not a specifically indictable crime against humanity (Prosecutor v. Charles Ghankay Taylor, Judgment, 18 May 2012, SCSL-03-01-T, paras 422, 425, 426, 427 and 429).

Purpose of Research

This essay argues that in future cases with facts similar to those in Sierra Leone, the ICC should not recognize “forced marriage” as a distinct crime against humanity under Article 7(1)(k), because it is prosecutable under other crimes enumerated under Article 7. This would uphold the scheme and interpretation of the Statute.

Research Method

The research method followed by the researcher in this paper is doctrinal, wherein secondary sources have been used as part of research material. The researcher has made extensive use of the secondary sources which include books, articles, journals and all literary resources to be along with e-resources like the internet pertaining to the given topic.

Forced Marriage As A Crime Against Humanity – An Overview

An understanding of the practice of “forced marriage” is quintessential to put forth the nuances of my argument. The same is explained throughout the SCSL Trial Chamber in the RUF Trial Judgment: women and girls (some as young as ten) (Prosecutor v. Issa Sesay et al, Case No. SCSL-04-15-T, Judgment, ¶ 1553 (Mar. 2, 2009)) were forced into conjugal relationships with soldiers, especially commanders, expected to have sex on demand, maintain an exclusive sexual

relationship, show loyalty to their “husbands,” do domestic chores such as cooking and housework, carry the husband’s possessions when he was deployed, bear children, and otherwise do what their husbands instructed (ibid, ¶¶ 460, 1154– 55, 1211– 13, 1293, 1295, 1413, 1460, 1472). Some women and girls were abducted (See for example, ibid ¶¶ 1154, 1409– 10), while others were forced into “marriage” “by means of threats, intimidation, manipulation, and other forms of duress which were predicated on the victims’ fear and their desperate situation” (ibid, ¶ 1468). Women and girls were subjected to sexual and gender-based violence including kidnapping, rape, forced marriage, forced impregnations and childbearing (Susan McKay & Dyan Mazurana, Where are the Girls? Girls in the Fighting Forces in Northern Uganda, Sierra Leone and Mozambique: Their Lives During and After War (Montréal: Rights & Democracy, 2003)). The Truth and Reconciliation Commission in Sierra Leone found that “young girls, most of them not yet at puberty, were raped and taken away to become “bush wives” ” (Sierra Leone, Truth & Reconciliation Commission Report, Witness to Truth: Report of the Sierra Leone Truth & Reconciliation Commission (Sierra Leone: Truth & Reconciliation Commission, 2004), vol 3A, ¶ 127, online: Sierra Leone Truth and Reconciliation Commission Report <http://www.sierra-leone.org/TRCDocuments.html>). As described by Justice Sebutinde, the phenomenon was characterized by “the forceful abduction and holding in captivity of women and girls (“bush wives”) against their will, for purposes of sexual gratification of the “bush husbands” and for gender-specific forms of labour including cooking, cleaning, washing clothes (conjugal duties)” (Prosecutor v. Brima et al, Case No. SCSL04-16, Judgment (Separate but Concurring Judgment of Justice Sebutinde), ¶ 12 (June 20, 2007)). I argue that contrary to acknowledging the victims’ suffering, the AFRC Appeals Judgment, by distinguishing the crime of “forced marriage” from the crime of sexual slavery, has the ironic effect of belittling the sexual violence and enslavement that were the principal features of “forced marriages” in the Sierra Leone conflict. As a result, the decisions of the Special Court for Sierra Leone may actually undermine the recognition of “forced marriage” as a serious violation of human rights and a crime akin to modern-day slavery in the context of war. By reaching to define a “new” crime of “forced marriage” subsumed under “Other Inhumane Acts,” the AFRC Appeals Judgment raises a host of contextual issues that may have problematic implications for future prosecutions by international criminal tribunals and, perhaps more importantly, fails to enhance the understanding of conflict related violence against women and girls.

The Exploitation of The Institution Of Marriage

The changes in the societal, legal, and religious status of two people brought about due to marriage are meant to protect the marriage and respect the autonomy and the privacy of the married couple within the sphere of the family. Marriage enjoys a highly favoured and in fact, often protected status in the law and in public policy, especially in the context of countries such as Sierra Leone and India. Religious and social taboos exist regarding adultery and associated ruptures of loyalty within a marriage. The objective of these is to protect the marital relationship from infidelity. Such manner of protection is not afforded to non-marital relationships. However, in a “forced marriage”, such changes in status are used by the perpetrators to trap the non - consenting spouse within the “forced marriage”. In addition, for a woman to dissolve her customary marriage (one where she has consented), she needs the permission of her relatives. By way of comparison, a victim of “forced marriage” rarely has access to her family to obtain such permission. By virtue of bestowing upon her the label of “wife”, her “husband” attaches

the rights of a spouse (within a conventional marriage) to her, and traps her within the “forced marriage” through the cultural and social mores which are already in place and function to protect valid marriages, as mentioned above. For example, in Sierra Leone, strong taboos exist regarding victims of rape (PHYSICIANS FOR HUMAN RIGHTS, War-Related Sexual Violence In Sierra Leone (2002), available at http://www.phrusa.org/research/sierra leone/report.html, at 78-79). A woman who has been raped before may be seen as unfit to be married, but if she gets “married” to her rapist, then the sexual violence inflicted upon her is deemed merely to be a part of the marital relationship she is now in, and the woman is spared any censure. Such a vast difference in cultural status between a “wife” and a rape victim compels the victim to stay in her “forced marriage”.

The Label Of “Wife” Is A Misnomer Within A “Forced Marriage”

Those who support the view that “forced marriage” must be categorized as a distinct crime against humanity, often put forth the argument that a “forced marriage” is different from the crime of sexual slavery because it involved additional elements or factors. These additional elements are usually said to be the mental and psychological trauma and social stigma that the “wife” faces as a victim of a “forced marriage” (Michael P Scharf & Suzanne Mattler, “Forced Marriage: Exploring the Viability of the Special Court for Sierra Leone’s New Crime Against Humanity” (2005) 1:2 Case Research Paper Series in Legal Studies). For instance, Chief Prosecutor in the AFRC Trial judgment, Stephen Rapp, insisted that the experience of “bush wives” in Sierra Leone was unlike that of women who were kidnapped and forced into sexual slavery for troops during the Japanese occupation of Korea in World War II who are often referred to as “comfort women” (Katy Glassborow, Forced Marriage Appeal May Influence ICC, July 24, 2007, available at http://iwpr.net/index.php?m=p&o=337374&s=f&apc). In his view, “[bush wives] were conscripted into a marital relationship, with all that that entails, which is more than being a comfort woman or a rape victim” (ibid). Based on these and other similar statements he made to the Institute for War and Peace Reporting (IWPR), it appears that Prosecutor Rapp believes that the only way to vindicate the psychological damage caused by the non-sexual elements of “forced marriage” is to recognize it as a separate crime against humanity under international criminal law. The prosecution argued, apparently without citation or example, that “while acts of forced marriage may in certain circumstances amount to sexual slavery, in practice they do not always involve the victim being subjected to non-consensual sex or even forced domestic labour” (Prosecutor v. Brima et al, Case No. SCSL-2004-16-A, Judgment, ¶ 189 (Feb. 22, 2008)). The prosecution thus contended and the Appeals Chamber agreed that forced marriage is not a sexual crime (ibid). Moreover, the Appeals Chamber reasoned that the perpetrators of forced marriages intended to impose a “forced conjugal association rather than exercise an ownership interest” over civilian women and girls (ibid, ¶ 190). However, my contention is that in fact, once the elements of sexual slavery are removed, only the label – “wife” – remains to distinguish between the crime of sexual slavery as defined by the AFRC Trial Judgment and the “new” crime of “forced marriage” recognized for the first time by the Appeals Chamber of the SCSL. The Trial Chamber in the RUF case found that the use of the word “wife” was deliberate and strategic, used a as a tool of psychological manipulation, with the aim of enslaving “bush wives” and treating them like possessions (Prosecutor v. Issa Sesay et al, SCSL-04-15-T, Judgment, ¶ 1466 (Mar. 2, 2009)). It is imperative that the Court look beyond the label and examine the substance of the

relationship between the “wives” and their captors in the background of the coercive environment in which these women were placed (Prosecutor v. Brima et al, Case No. SCSL-04-16-T, Judgment, ¶ 17 (Dissenting Judgment of Justice Doherty) (Jun. 20, 2007)). The title “forced marriage” is a misnomer, which belies the fact that the relationship was essentially one based on extreme oppression and sexual exploitation of these so-called “wives”. In addition, such “forced marriages” are devoid of any sanctity in religion and society or legal validity whatsoever, in the absence of customary rites and rituals conventionally attached to marriages. The psychological trauma and social stigma faced by victims of “forced marriage” and sexual slavery is identical, the only difference between the two being, the misleading label of “wife” and “marriage”. The Trial Chamber in the AFRC case found that not one of the victims testified that “the mere fact that a rebel had declared her to be his wife had caused her any particular trauma, whether physical or mental” (Prosecutor v. Brima et al, Case No. SCSL-04-16-T, Judgment, ¶ 710 (June 20, 2007)). Regardless of whether this definition of “forced marriage” rises to the level of a crime against humanity, Justice Doherty and the Appeals Chamber both ignored the Trial Chamber’s factual findings. Of 321 women’s claims for reparation, sampled randomly, approximately one quarter of the claimants talked about the designation of “wife” in her claim. Many spoke of rape and other losses during the conflict. In the required description of the event leading to the human rights abuse, as the reparation form titled it, women spoke of being “forced into marriage”, “taken as a wife”, or “used as their wife” (Claims from National Commission for Social Action (NaSCA), (2011)). These “forced marriages” were a stark departure from marriage as it was typically understood under the laws of Sierra Leone. The few official ceremonies that were performed did not conform to any recognized religious or civil union; they occurred in the absence of consent by the “wife” or her family in violation of the requirements and forms of such marriages. These “forced marriages” were also anomalous in the context of customary marriages. The consent of the woman’s family was not obtained, nor, in many cases, was the family a party to the proceedings or paid “bride wealth”-typically a substantial element of the customary marriage and generally considered one of the main bases of the marriage’s legitimacy (Iman Ngondo A Pitshandenge, “Marriage Law in Sub-Saharan Africa”, Nuptuality In Sub-Saharan Africa: Contemporary Anthropological And Demographic Perspectives 118 (Caroline Bledsoe and Gilles Pison ed., 1994)). Additionally, the woman’s transition from the unwed to wedded state was accomplished by one defining act, namely the perpetrating spouse declaring the woman his “wife.” Thus, at best, such a practice of “forced marriage” is an attempt to confer false legitimacy to the heinous acts committed within such a relationship, which ought not be reinforced by the ICC itself.

“Forced Marriage” Is A Predominantly Sexual Offence

According to the rule of effective interpretation (Prosecutor v. Tadić, Case No. IT-94-1-A, Judgment, ¶ 284 (Jul. 15, 1999)), the Rome Statute’s provisions must be interpreted without rendering any part superfluous. Article 7 of the Rome Statute contains the crimes against humanity, a list of enumerated offences and a residuary clause of “other inhumane acts” in Article 7(1)(k). Therefore only offences excluded from Articles 7(1)(a)-(j) will be classified under Article 7(1)(k). Article 7(1)(g), on the other hand, covers predominantly sexual crimes, and includes a distinct residuary clause (Article 7(1)(g), Rome Statute of the International Criminal Court (2002)), making the list of sexual offences contained

therein exhaustive (Prosecutor v. Norman et al, Case No. SCSL-04-14-PT, Reasoned Majority Decision on Prosecution Motion for a Ruling on the Admissibility of Evidence, ¶ 19 (May 24, 2005)), and excluding the same from Article 7(1)(k). It is my contention that clause (g) encompasses “forced marriage”. Justice Sebutinde emphasized that the clear legislative intent behind the phrase “any other form of sexual violence” in Article 2(g) of the SCSL Statute is the “creation of a category of offences of sexual violence of a character that do not amount to any of the earlier enumerated sexual crimes, and that to permit such other forms of sexual violence to be charged as ‘other inhumane acts’ offends against the rule against multiplicity and uncertainty….” (Prosecutor v. Brima et al, Case No. SCSL-04-16, Judgment (Separate but Concurring Judgment of Justice Sebutinde), ¶ 3 (June 20, 2007)). According to the Appeals Chamber in the AFRC Trial, certain distinctions imply that “forced marriage” is not predominantly a sexual crime: (1) words or conduct intended to compel a person by force or threat of force into a “forced conjugal association,” and (2) a relationship of exclusivity between the “husband” and “wife,” which could lead to disciplinary consequences for breach of the “exclusive arrangement” (Prosecutor v. Brima et al, Case No. SCSL-2004-16-A, Judgment, ¶ 195 (Feb. 22, 2008)). Consequently, the Appeals Chamber found that “forced marriage” describes a situation in which the perpetrator through his words or conduct, or those of someone for whose actions he is responsible, compels a person by force or threat of force, or coercion to serve as a conjugal partner resulting in severe suffering, or physical, mental or psychological injury to the victim” (ibid, ¶ 196). The Appeals Chamber noted that the ICTY and ICTR have recognized a wide range of sexual and other gender-based acts as inhumane acts, and that there is no reason why the listing of sexual violence crimes in Article 2(g) of the SCSL statute should foreclose the possibility of charging as inhumane acts crimes which may have a sexual or gender component ( Prosecutor v. Brima et al, Case No. SCSL-04-16-T, Judgment, ¶¶ 703-707, 710 (Jun. 20, 2007)). But it is our submission that “forced marriage” hinges principally on sexual violence. It is not an offence which simply contains a sexual component, but a crime which is predominantly sexual in nature. “Other inhumane acts” have in the past included forced public nudity (Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, ¶ 697 (Sep. 2, 1998)), forcing women to perform exercises naked (ibid), beatings, torture, humiliation, and harassment (Prosecutor v. Kvočka et al, Case No. IT-98-30/1-T, Judgment, ¶ 180 (Nov. 2, 2001)). These crimes are perpetrated as an affront to human dignity (Prosecutor v. Norman et al, Case No. SCSL-04-14-PT, Reasoned Majority Decision on Prosecution Motion for a Ruling on the Admissibility of Evidence, ¶ 19 (May 24, 2005)) and to degrade the victim. They primary objective is not sexual violence, but to attack and question dignity. While they may have sexual components, they are predominantly nonsexual crimes (ibid; Prosecutor v. Brima et al, Case No. SCSL-04-16-T, Judgment, ¶ 697 (Jun. 20, 2007)). Only predominantly sexual crimes should be included within Clause (g), and “forced marriage” is a predominantly sexual crime. This is evident from witness testimonies, which give primacy to sexual elements (Prosecutor v. Brima et al, Case No. SCSL-04-16-T, Judgment, ¶ 523-4, 595, 10798-1185, 1455-1458, 1823, 2092 (Jun. 20, 2007); Prosecutor v. Charles Taylor, Case No. SCSL-03-01-T, Judgment, ¶ 427, 428, 1079, 1113, 1126, 1157, 1158, 1165, 1172 (May 18, 2012); Prosecutor v. Issa Sesay et al, SCSL-04-15-T, Judgment, ¶ 944-947, 1291-1301, 1406-1413, 1460-1474, 1562, 1566 (Mar. 2, 2009)). Justice Sebutinde reasoned, rightly, that the sexual element inherent in these acts tends to dominate the other elements, such as forced labour (Prosecutor v. Brima et al, Case No. SCSL-0416, Judgment (Separate but Concurring Judgment of Justice Sebutinde), ¶ 6 (June 20, 2007)). In support, she cited the expert report of Mrs. Bangura, relied on by

both the prosecution and the Appeals Chamber, which acknowledges that sexual abuse is an inherent component of “forced marriage”, and affirms that “bush wives” were subjected to constant sexual abuse (ibid, ¶ 15). None of these facts were contested by the prosecution, which makes its characterization of “forced marriage” as not predominantly a sexual crime, which the Appeals Chamber adopted, all the more perplexing. The second factor identified by the Appeals Chamber, namely the “exclusivity” factor, is more appropriately characterized as evidence of ownership or control, which is an element of sexual slavery or enslavement in the context of armed conflict. As identified by the ICTY in Kunarac, a perpetrator’s assertion of exclusivity can be indicative of enslavement, but it is only one of many factors that may be taken into consideration (Prosecutor v. Kunarac, Case No. IT-96-23T & IT-96-23/1-T, Judgment, ¶ 543 (Feb. 22, 2001)). This issue will be dealt with in detail in a subsequent portion of this essay. Not only that, another flaw in the Appeals Chamber’s approach is that its definition of “forced marriage” as a crime against humanity is impossibly vague. As mentioned above, the distinct elements of “forced marriage” are essentially twofold: a “forced conjugal association” that is “exclusive” (Prosecutor v. Brima et al, Case No. SCSL-2004-16-A, Judgment, ¶ 195 (Feb. 22, 2008)). However, neither of those terms is defined. Moreover, the act of consummation is central to marriage as a social institution, as it constitutes the foundation of the family unit. An important traditional social function of marriage is to give social legitimacy to sexual relations between a man and a woman. For example, failure to consummate the marriage renders it voidable in common law (S. 12, Matrimonial Causes Act 1973 (as amended by Gender Recognition Act, 2004); Civil Partnership Act 2004). Thus acts of a sexual nature assume a central position in “forced marriages”. Thus, “forced marriage” should not fall within clause (k) in accordance with the rule of effectiveness.

The Crime of Forced Marriage Is Subsumed Under Sexual Slavery

In fact, it is submitted that “forced marriage” is subsumed under the crime of sexual slavery (Special Rapporteur on Contemporary Forms of Slavery, Systematic Rape, Sexual Slavery and Slavery-like Practices during Armed Conflict, U.N. Comm'n on Hum. Rts. U.N. Doc. No. E/CN.4/Sub.2/2000/21, ¶ 13 (Jun 6, 2000), (by Gay J. McDougall)), as held by the ICC itself (Prosecutor v. Katanga et al, Case No. ICC-01/04-01/07, Decision on Confirmation of Charges, ¶ 431 (Sep. 30, 2008)), and the SCSL (Prosecutor v. Brima et al, Case No. SCSL-04-16-T, Decision on Defence Motions for Judgment of Acquittal Pursuant to Rule 98 (Mar. 31, 2006) ; Prosecutor v. Brima et al, Case No. SCSL-04-16-T, Judgment, ¶ 14 (Separate but Concurring Judgment) (Jun. 20, 2007)). Indeed, by relying on evidence of physical and sexual violence to find that forced marriage satisfied the elements of “other inhumane acts”, the Appeals Chamber of the AFRC Trial further muddied the distinction between its new crime against humanity and sexual slavery. But sexual violence has been defined broadly by the ICTY (Prosecutor v. Kvočka et al, Case No. IT-98-30/1-T, Judgment, ¶ 180 (Nov. 2, 2001)) and ICTR (Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, ¶ 688 (Sep. 2, 1998)) to include acts constituting “forced marriage”. ”Forced marriage” fulfils the elements of sexual slavery (Article 7(1)(g), Elements of Crimes (2002)). Under a straight application of the facts, the acts of “forced marriage” fit the required elements of sexual slavery without the unnecessary ambiguities created by defining a new crime (Art. 7(1)(g)-2, Elements of

Crimes, (2002)). First, the perpetrator (“husband”) exercised any or all of the powers attached to the right of ownership over his victim (“wife”), whereby not only was she held captive or not free to leave without fear of reprisal (deprivation of liberty), but also she was forced to perform gender-specific forms of labour, including cooking, cleaning and washing clothes (Prosecutor v. Brima et al, Case No. SCSL-04-16, Judgment, ¶ 12 (June 20, 2007)). Likewise, assertions of exclusivity could also be considered as evidence of ownership or control. Second, without exception, the perpetrator regularly subjected his “wife” to sexual intercourse (rape) or forced her to engage in other sexual acts (sexual abuse) without her genuine consent (ibid). Third, the perpetrator abducted and forcibly kept his “wife” in captivity and sexual servitude with the intent to hold her indefinitely in that state (ibid). With respect to the mens rea element, a perpetrator’s use of the term “wife” could be offered as proof of intent to engage in acts of sexual slavery. 8.1

Ownership and Control

The first Element of Crime for the offence of sexual slavery is the establishment of a right of ownership over one or more persons. The AFRC Trial judgment also noted that payment or exchange is not required to establish the exercise of ownership, nor does ownership require confinement to a particular place (Prosecutor v. Brima et al, Case No. SCSL-04-16, Judgment, ¶ 709 (June 20, 2007)). This settles a debate that arose during the ICC negotiations as to whether payment or exchange is a necessary element of sexual slavery (Valerie Oosterveld, The Special Court for Sierra Leone’s Consideration of Gender-based Violence: Contributing to Transitional Justice?, 10 Hum. Rts. Rev. 81 (2009); Valerie Oosterveld, Sexual Slavery and the International Criminal Court: Advancing International Law, 25 Mich. J. Int’l L. 630-31, 642-43 (2004)). Perpetrators exercised a right of ownership over “bush wives” (Prosecutor v. Kunarac et al, Case No. IT-96-23-T & IT-96-23/1-T, Judgment, ¶ 542-3 (Feb. 22, 2001)) and deprived them of liberty. They extracted forced labour (washing, cooking etc.) (Susan McKay & Dyan Mazurana, Where are the Girls? Girls in the Fighting Forces in Northern Uganda, Sierra Leone and Mozambique: Their Lives During and After War (Montréal: Rights & Democracy, 2003)) and reduced “wives” to servile status. “Wives” testified to the control and possession that the perpetrators attached to them (ibid; see eg. Prosecutor v. Brima et al, Case No. SCSL-04-16-T, Judgment, ¶ 1126, 1130, 1159, 1183 (Jun. 20, 2007)). With respect to the sole defining feature of a “forced marriage”, according to Mrs. Bangura, the word “wife” demonstrated a rebel’s control over a woman (this will be elaborated upon further in the paper) (ibid, ¶ 13). In fact, the aspect of exclusivity reinforced the exercise of ownership over “bush wives”. The rebels “perniciously instilled fear in their “wives” by telling them that their families would not accept them back” (HUMAN RIGHTS WATCH, "We'll Kill You If You Cry": Sexual Violence In The Sierra Leone Conflict 44 (2003), available at http:/Ahrw.org/reports/2003/ sierraleone/sierleon0103.pdf). Indeed, “ex-wives” of rebels have experienced ostracism from their community and rejection from their former husbands (SIERRA LEONE TRUTH & RECONCILIATION COMMISSION, Witness To Truth (2004), available at http://www.trcsierraleone.org/, at 165-66, 19799, 320). Similarly in Prosecutor v. Kunarac, the Trial Chamber found the abduction, rape, and confinement of two Muslim girls in an abandoned house in Trnovace to be a form of enslavement, which the Trial Chamber defined as “the exercise of any or all of the powers attaching to the right of ownership over a person” (Prosecutor v. Kunarac et al., Case No. IT-96-23T & IT-96-23/1-T, Judgment, ¶ 539 (Feb. 22, 2001)). In this case, the witness was taken, together with two other girls,

to a house in Trnovace by Kunarac, nicknamed “Gaga,” and other soldiers in uniform (ibid, ¶ 255, 256). She spent roughly five to six months in the Trnovace house (ibid, ¶ 262). The Trial Chamber found that, during the time of her detention, she was constantly raped by Kunarac who “reserved [her] for himself” (ibid, ¶ 728). As evidence of Kunarac’s assertion of exclusivity (i.e., ownership) over her, the Trial Chamber emphasized that other soldiers were forbidden to rape her (ibid, ¶ 741). Evidence such as having to “obey all demands” of the accused and having to “do household chores” was highlighted as proof of the complete control that Kunarac exercised over the life of the witness (ibid, ¶ 728). With the exception of the label “wife”, the circumstances establishing the crime of rape and enslavement in Kunarac by the ICTY are closely analogous to the phenomenon of “bush wives” in the Sierra Leone conflict. Mrs. Bangura’s expert testimony in the AFRC Trial (Prosecutor v. Brima et al, Case No. SCSL04-16-T, Transcript of Proceedings, 19-20 (Oct. 3, 2005)) points to the term “wife” and the control over the bush wife’s sexual autonomy, as demonstrating that a woman belonged to a man and could not be touched by another (Exhibit P32, Mrs. Zainab Bangura, “Expert Report on Phenomenon of Forced Marriages in the Context of the Conflict in Sierra Leone and, more specifically, in the Context of the Trials against the RUF and AFRC Accused Only”, Prosecutor v. Brima et al, Case No. SCSL-04-16-T, Judgment, (Jun. 20, 2007)). What makes these acts ones of control over the women's sexuality is that the women had no escape. They were captives or, as specified in the Elements of Crimes, they were deprived of their liberty (Article 7(1)(g), Elements of Crimes (2002)). The importance of not interpreting this deprivation of liberty in the narrow, physical sense of imprisonment was emphasized by some delegations during the negotiations of the Elements of Crimes: “The expression 'similar deprivation of liberty' does not exclude certain situations, which took place during the Rwandese and Bosnian conflicts, in which women, sexually abused, were not locked in a particular place and therefore were 'free to go', but were in fact deprived of their liberty as they had nowhere else to go and feared for their lives.” (Eve La Haye, “Article 8(2)(b)(xxii)-Rape, Sexual Slavery, Enforced Prostitution, Forced Pregnancy, Enforced Sterilization, and Sexual Violence”, The International Criminal Court: Elements Of Crimes And Rules Of Procedure And Evidence, pp. 183, 191-92 (Roy S. Lee ed., 2001)) 8.2

Acts Of A Sexual Nature

The second Element of Crime for the offence of sexual slavery necessitates engagement in one or more acts of a sexual nature. “Forced marriages” also included one or more sexual acts as evidenced from the widespread sexual violence (Susan McKay & Dyan Mazurana, Where are the Girls? Girls in the Fighting Forces in Northern Uganda, Sierra Leone and Mozambique: Their Lives During and After War (Montréal: Rights & Democracy, 2003)). And the contextual and knowledge elements are presupposed, it being clear that the perpetrator intended to sexually abuse the “wife” and keep her in such state indefinitely, while attempting to establish legitimacy by using the label of “wife”. The Trial Chamber in the RUF case also began its analysis of sexual slavery by noting that the inclusion of this prohibited act, first in the Rome Statute of the ICC and then in the SCSL’s own Statute, simply codified actions that were already criminal (Prosecutor v. Issa Sesay et al, Case No. SCSL-04-15-T, Judgment, ¶ 154-56 (Mar. 2, 2009)). This codification was “designed to draw attention to serious crimes that have been historically overlooked and to recognise the particular nature of sexual violence that has been used, often with impunity, as a

tactic of war to humiliate, dominate, and instil fear in victims, their families, and communities during armed conflict” (ibid, ¶ 156). But the Trial Judgment avoided defining the crime with any particularity, which leaves unanswered whether the actus reus of “forced marriage,” namely a “forced conjugal association,” could ever be met under circumstances that do not amount to sexual slavery. Clearly “forced marriage” has no distinctive features different from sexual slavery. Forced conjugal labour is a descriptive component of a form of sexual slavery, not a definitional element of a new crime, in the same way that gang rape is a form of rape but is the same crime (Prosecutor v. Charles Taylor, Case No. SCSL03-01-T, Judgment, ¶ 429 (May 18, 2012)). 8.3

“Forced Marriage” As Enslavement

One of the arguments that is given against the inclusion of “forced marriage” within the crime of sexual slavery is that there were instances of “forced marriages” where sexual violence was not predominant. Firstly, this is in strict contrast to the evidence testimonies of the victims in the various SCSL judgments that have been recorded, and secondly, it is contended that even in these scenarios, a new offence of “forced marriage” cannot be created because the crime may then be subsumed within the offence of Enslavement under Article 7(1)(c) of the Rome Statute (Jean Allain, “Servile Marriage as Slavery and its Relevance to Contemporary International Law” (2010) [unpublished]). It is also contended that even in cases of “forced marriage” which involved the kind of rampant sexual abuse evident in the testimonies, the elements of enslavement are visibly fulfilled. If the crime can be categorized under either sexual slavery or enslavement, its recognition as a distinct crime against humanity must not be considered. The court in the AFRC Trial found that “[t]he evidence showed that the relationship of the perpetrators to their ‘wives’ was one of ownership and involved the exercise of control … including control of the victims sexuality, her movements and her labour; for example, the ‘wife’ was expected to carry the rebel’s possessions … to cook for him and to wash his clothes” (Prosecutor v. Brima et al, Case No. SCSL-04-16-T, Judgment, (Jun. 20, 2007)). Notably, in the Trial Chamber’s analysis, duties such as cooking and cleaning are not characterized as essentials of marriage, but as evidence of forced labour tending to prove the element of control as in the Kunarac decision. In the Kunarac decision, the witness testified that she felt like Kunarac’s property (ibid). Significantly, the ICTY considered similar evidence of “protection” from rape by other men as demonstrating the elements of ownership and control necessary for the crime of enslavement. In determining whether the defendants were guilty of enslavement, the ICTY Trial Chamber listed the following factors to be taken into consideration: control of someone’s movement, control of physical environment, psychological control, measures taken to prevent or deter escape, force, threat of force or coercion, duration, assertion of exclusivity, subjection to cruel treatment and abuse, control of sexuality, and forced labour (ibid, ¶ 543). In the SCSL, the use of the term “wife” was viewed by the Trial Chamber as proof of the perpetrator’s intent “to exercise ownership over the victim, and not intent to assume a marital or quasi-marital status with the victim in the sense of establishing mutual obligations inherent in a husband wife relationship” (ibid). The point is, the non-sexual elements outlined by the various opinions in the AFRC judgments have for the most part been recognized as acts that can form the basis of the crime of enslavement (Prosecutor v. Kunarac et al., Case No. IT-9623T & IT-96-23/1-T, Judgment, ¶ 539 (Feb. 22, 2001)). The elements of enslavement can be clearly established, for what were the economic and social alternatives for these women if they did leave their “husband”

who, at least, provided them with minimal protection and means of support. According to Human Rights Watch, the RUF rebels established "internal rules" to govern the behaviour of the fighters and captives: “A rebel was expected to provide for his “wives” and children during their captivity .... If a rebel reneged on his responsibility, then he could be put in a cell and beaten to death” (HUMAN RIGHTS WATCH, "We'll Kill You If You Cry": Sexual Violence In The Sierra Leone Conflict 45 (2003), available at http:/Ahrw.org/reports/2003/ sierraleone/sierleon0103.pdf). “Numerous victims end up being commercial sex workers, selling their bodies for as little as U.S. 50 cents” (ibid, see also SIERRA LEONE TRUTH & RECONCILIATION COMMISSION, Witness To Truth (2004), available at http://www.trcsierraleone.org/, at 199-200, 313). After seeing their family decimated and becoming accustomed to their new life, some-particularly those who were abducted young and have had children fathered by a rebel – even came to consider their "rebel husband" as a surrogate family (HUMAN RIGHTS WATCH, "We'll Kill You If You Cry": Sexual Violence In The Sierra Leone Conflict 44 (2003), available at http:/Ahrw.org/reports/2003/ sierraleone/sierleon0103.pdf). Those who stayed with their captors considered themselves married ... and believed that they [had] no choice but to remain with their “husbands” (PHYSICIANS FOR HUMAN RIGHTS, War-Related Sexual Violence In Sierra Leone (2002), available at http://www.phrusa.org/research/sierra leone/report.html, at 76). The number of “wives” who remain with their abductors today is unknown (HUMAN RIGHTS WATCH, "We'll Kill You If You Cry": Sexual Violence In The Sierra Leone Conflict 44 (2003), available at http:/Ahrw.org/reports/2003/ sierraleone/sierleon0103.pdf). In addition, the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery (Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery (1956), 226 UNTS 3) includes child exploitation and marriage without the right to refuse where consideration is exchanged as forms of slavery, which is defined in the Slavery Convention of 1926 (See Jean Allain, “On the Curious Disappearance of Human Servitude from General International Law” (2009) 11 J Hist Int’l L 303 [Allain, “Human Servitude”]; Jean Allain, “Hadijatou Mani Koraou v. Republic of Niger” (2009) 103 Am J Int’l L 311). It can be argued that with the inclusion of certain factors, both the 1926 and the 1956 Conventions support my interpretation of contemporary “forced marriage” in conflict – related contexts being prosecuted as slavery. Thus, while it is my contention that “forced marriage” should be subsumed within the crime of sexual slavery and that “forced marriage” is predominantly sexual in nature, in arguendo, it is contended it can simply be recognized under the offence of enslavement, especially if instances of non-sexual “forced marriage” come up in the future.

Gender Neutrality Of The Rome Statute

The underlying principle in the drafting of the Rome Statute of the ICC (United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, 4th Plenary Meeting, June 16, 1998, A/CONF.183/SR.4, p. 82; ILC Draft 1994, pp.114-115) and the jurisprudence of the ICC (Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, ¶ 162 (Jun. 15, 2009)) and other international tribunals (Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment (Sep. 2, 1998)) has been a continued effort to define crimes of sexual violence (with the exception of forced pregnancies) in a gender-neutral manner,

and transcend traditional social expectations that arise out of gendered roles of a man and a woman, in the spheres of both family and society. The appropriate labelling of crimes is a crucial concern – labels hold the potential to either reinforce or break away from stereotypes, and in the context of crimes of sexual violence, gender stereotypes. The word “wife” as commonly understood, is associated with traditionally defined conjugal duties. This traditional understanding arises out of constructs of “marriage” and associated roles of spouses that are based on gender biases. This reinforces age – old gender stereotypes and at the same time, overlooks potential male victims of “forced marriages”. In the context of armed conflict, the international criminal tribunals must not validate discriminatory notions of marriage that contribute to violence, but rather they must call it what it is – sexual slavery or enslavement. With respect to the distinction between conflict – related “forced marriage” and sexual slavery or enslavement, the Appeals Chamber of the SCSL in the AFRC case exaggerated the significance of so – called “conjugal duties” of a “wife”, such as cooking and cleaning, to support its conclusion that “forced marriage” is not predominantly a sexual crime. In attempting to identify the so – called “distinct elements” of a “forced marriage”, the elements apart from acts of a sexual nature, the prosecution, and later the Justices of the Appeals Chamber, resorted to stereotypical examples of the “tasks attached to a marriage”, tasks that are properly characterized as evidence of forced labour when “forced marriage” is categorized under sexual slavery or enslavement. In so doing, the Appeals Chamber of the Court effectively incorporated centuries – old gender stereotypes of women’s work into the jurisprudence of international humanitarian law, stereotypes that must not be reinforced by international criminal tribunals such as the ICC.

Prohibition Of Sexual Slavery Is A Jus Cogens Norm

Lastly, classifying “forced marriage” as subsumed under ‘Sexual Slavery’, and not as a part of ‘Other Inhumane Acts’, would give this crime the protection of a jus cogens norm, and accord to it the recognition called for by a crime of its gravity and abhorrent nature. Recognition of a crime as a jus cogens norms implies that it is non-derogable by States, except by a subsequent norm of general international law having the same normative force (Vienna Convention on Law of Treaties, art. 53, May 23, 1969, 1155 U.N.T.S. 33; Prosecutor v. Ando Furundzija, IT-95-17/1-T, Judgment, ¶ 153 (Dec. 10, 1998)), that States are obligated to prosecute these offences (Special Rapporteur on Contemporary Forms of Slavery, Systematic Rape, Sexual Slavery and Slavery-like Practices during Armed Conflict, U.N. Comm'n on Hum. Rts. U.N. Doc. No. E/CN.4/Sub.2/2000/21, ¶ 9 (Jun 6, 2000), (by Gay J. McDougall)), and that the prosecuting State does need not have any link to the nationality or territory of the victim, the perpetrator, or the crime (Special Rapporteur on Contemporary Forms of Slavery, Systematic Rape, Sexual Slavery and Slavery-like Practices during Armed Conflict, U.N. Comm'n on Hum. Rts. U.N. Doc. No. E/CN.4/Sub.2/1998/13, ¶ 36 (Jun 22, 1998), (by Gay J. McDougall)). Such universal recognition and condemnation of a jus cogens norm is accorded to enslavement (M. Cherif Bassiouni, “Enslavement as an International Crime”, New York University Journal of International Law and Politics, vol. 23, 1991, p. 445; The First Report on the Issue of Japan's Military “Comfort Women”, Centre for Research and Documentation on Japan's War Responsibility, 31 March 1944, p. 76; supra 3 at para 46), and thus is also accorded to sexual slavery as a particularized form of enslavement (Prosecutor v. Brima et al, Case No. SCSL-04-16-

T, Judgment, ¶ 705 (Jun. 20, 2007); Prosecutor v. Akayesu, Case No. ICTR-964-T, Judgment, ¶ 51 (Sep. 2, 1998)). On the other hand, a residuary clause such as ‘Other Inhumane Acts’ cannot have such recognition as it does not address any specific offence. Therefore, a crime as heinous as “forced marriage” must be subsumed within sexual slavery because it necessitates its recognition as a jus cogens norm. It would receive the same recognition even in the rare (perhaps even non – existent) circumstances where the “marriage” is non-sexual in nature, as in such cases it must be prosecuted as enslavement. “When critics charge that specific practices constitute ‘slavery’, or mark a continuation of ‘slavery by another name’, what they are usually suggesting is that they should be equated with the worst excesses of transatlantic slavery. The key question here is not so much whether specific practices are identical to slavery, at least in part because slavery can be defined in a number of ways, but instead whether they share sufficient features in common with slavery to be rendered illegitimate as a result of prior anti-slavery commitments” (Joel Quirk, “Ending Slavery in all its Forms: Legal Abolition and Effective Emancipation in Historical Perspective” (2008) 12:4 Int’l JHR 529 at 532). Jean Allain also argues that the elements of servile marriage (where a woman or girl is purchased, transferred or inherited) fulfil the definition of enslavement as a crime against humanity (Jean Allain, “Servile Marriage as Slavery and its Relevance to Contemporary International Law” (2010) [unpublished]). Amy Palmer concludes, in her analysis of the decision of the Appeals Chamber of the SCSL in the AFRC case, that “forced marriage” “should be prosecuted as a separate crime under international law in order to appropriately recognize its gravity, prevent future tragedies, properly recognize the suffering of the victims, and facilitate an examination of the traditional marital union within differing cultures across the world” (Amy Palmer, “An Evolutionary Analysis of Gender-Based War Crimes and the Continued Tolerance of ‘Forced Marriage’” (2009) 7:1 Northwestern Journal of International Human Rights 133 at 159). Michael Scharf and Suzanne Mattler also argue that “forced marriage” is a “valid and viable category of crime against humanity” (Michael P Scharf & Suzanne Mattler, “Forced Marriage: Exploring the Viability of the Special Court for Sierra Leone’s New Crime Against Humanity” (2005) 1:2 Case Research Paper Series in Legal Studies at 2) and that it ought to be prosecuted as the “unique crime that it is” (ibid, at 24). But this very same argument should be used to support the view that “forced marriage” in a situation of conflict falls within the ambit of enslavement (without reducing the practice to only sexual slavery in the rare cases where sexual elements are absent), because recognising the offence as a jus cogens norm would give to it the widespread denunciation that a crime of its gravity requires. Furthermore, the judgment of the Trial Chamber of the SCSL in the RUF case found that “forced marriage was important to the RUF both as a tactic of war and means of obtaining unpaid logistical support for troops [emphasis added]” (Prosecutor v. Issa Sesay et al, Case No. SCSL-04-15-T, Judgment, ¶ 2107 (2 March 2009)). “Forced marriage” not only provided the fighters with ongoing sexual access to women and household care-giving from women, it also played a central part in establishing a system of overarching control over the civilian population, similar to the institutionalized practice of sexual slavery in other conflict situations. In the RUF Trial judgment, the Trial Chamber described the role that gender-based crimes played in the RUF’s ideology. First, the Chamber observed that “sexual violence was rampantly committed against the civilian population in an atmosphere in which violence, oppression and lawlessness prevailed” (Prosecutor v. Issa Sesay et al, SCSL-04-15-T, Judgment, ¶ 1348 (Mar. 2, 2009)). The RUF created that atmosphere and, within that atmosphere, adopted a “calculated and concerted pattern . . . to use sexual violence as a weapon of terror” (ibid). Second, the Trial Chamber found that this gender-based violence “effectively

disempowered the civilian population and had a direct effect of instilling fear on entire communities.” The pattern of sexual enslavement was a “deliberate system intended to spread terror” (ibid ¶ 1348; See also ibid ¶ 1351). The “savage nature” of such sexual violence “demonstrates that these acts were committed with the specific intent of spreading fear amongst the civilian population as a whole, in order to break the will of the population and ensure their submission to AFRC/RUF control” (ibid ¶ 1348). To ensure such submission, the RUF fighters “not only abused, debased and isolated the individual victim,” but “deliberately destroyed the existing family nucleus” by relying on the stigma associated with sexual violence in Sierra Leonean society to ensure that “[v]ictims of sexual violence were ostracised, husbands left their wives, and daughters and young girls were unable to marry within their community.” They “calculated” the “consequences of sexual violence” (ibid ¶ 1349). These practices included sexual slavery, enforced pregnancies, “forced marriage” and so on. This is a very important dimension of the widely prevalent practice. It can be argued that this dimension is better captured in the social and legal category of enslavement, or sexual slavery as a form of enslavement, rather than a distinct crime against humanity of “forced marriage”, because the former connotes an institutionalized and widely prevalent process in the context of conflict. It is in fact, consistent with the historical practices of the use of slaves as labour during wars in pre-colonial and colonial Africa. Such acts of sexual violence, establishing a system of overarching control over civilian populations and terrorizing them, must be accorded the universal condemnation they deserve, thus furthering the argument for the recognition of “forced marriage” as a jus cogens norm under sexual slavery or enslavement. Moreover, the institution of marriage enjoys a protected status because as is universally believed, it facilitates the betterment of both individuals involved in the marriage, and therefore of society, objectives that cannot be met in a “forced marriage”. The international community, therefore, has a clear interest in sending a strong message to the effect that “forced marriage” is an absolutely unacceptable perversion of a protected, valued and sacred institution. It must be made known across States that “forced marriage”, and the threat that it poses to the family structure, will not be tolerated. This only furthers our contention that “forced marriage” must be recognized as a particularised form of sexual slavery or enslavement, and thus fall within the ambit of a jus cogens norm. Further, social and legal perceptions of “forced marriage” may vary. For example, child marriage may be permissible within some jurisdictions, while the same may be construed as a “forced marriage” in others (Corinne A.A. Packer, Using Human Rights to Change Tradition: Traditional Practices Harmful to Women's Reproductive Health In Sub-Saharan Africa 181 (2002), p. 76). An offence against “forced marriage” is not seen in the same light across States, and is thus not a universally accepted principle. However, the Rome Statute of the International Criminal Court is a legal document that represents the crystallization of universally accepted principles and universally condemned heinous acts. Thus “forced marriage” cannot be included within the scheme of the Statute as a distinct crime under Article 7(1)(k).

Conclusions And Recommendations

The very argument most favoured by those who consider “forced marriage” as a separate crime under Article 7(1)(k) is that it would formally acknowledge the unique suffering of “bush wives”. Charging “forced marriage” under sexual slavery or enslavement, a jus cogens norm, leading to universal condemnation of the crime, would serve exactly that purpose. Additionally, this very same suffering

mentioned above entails the labelling of women and girls as “wives”. In cases with a similar context to that of Sierra Leone, this must be seen as evidence of intent to show ownership, domination or control, and not proof of intent to confer “conjugal status,” a phrase which implies mutual benefits and obligations that are completely absent. Thus, no case can be made to recognize conflict-related forced marriage explicitly as a separate crime under “other inhumane acts”. Not only that, a teleological interpretation of the Statute mandates that crimes recognized therein must be uniformly perceived across States and cultures. This cannot be reconciled with recognizing “forced marriage” as a distinct crime under Article 7(1)(k). (8,118 words)

References 1. Amy Palmer, “An Evolutionary Analysis of Gender-Based War Crimes and the Continued Tolerance of ‘Forced Marriage’” (2009) 7:1 Northwestern Journal of International Human Rights 133 2. Contemporary Anthropological And Demographic Perspectives 118 (Caroline Bledsoe and Gilles Pison ed., 1994) 3. Corinne A.A. Packer, Using Human Rights to Change Tradition: Traditional Practices Harmful to Women's Reproductive Health In Sub-Saharan Africa 181 (2002) 4. Eve La Haye, “Article 8(2)(b)(xxii)-Rape, Sexual Slavery, Enforced Prostitution, Forced Pregnancy, Enforced Sterilization, and Sexual Violence”, The International Criminal Court: Elements Of Crimes And Rules Of Procedure And Evidence (Roy S. Lee ed., 2001) 5. HUMAN RIGHTS WATCH, "We'll Kill You If You Cry": Sexual Violence In The Sierra Leone Conflict 44 (2003), available at http:/Ahrw.org/reports/2003/ sierraleone/sierleon0103.pdf 6. Jean Allain, “Hadijatou Mani Koraou v. Republic of Niger” (2009) 103 Am J Int’l L 311 7. Jean Allain, “On the Curious Disappearance of Human Servitude from General International Law” (2009) 11 J Hist Int’l L 303 8. Jean Allain, “Servile Marriage as Slavery and its Relevance to Contemporary International Law” (2010) [unpublished] 9. Joel Quirk, “Ending Slavery in all its Forms: Legal Abolition and Effective Emancipation in Historical Perspective” (2008) 12:4 Int’l JHR 529 10. Katy Glassborow, Forced Marriage Appeal May Influence ICC, July 24, 2007, available at http://iwpr.net/index.php?m=p&o=337374&s=f&apc 11. M. Cherif Bassiouni, “Enslavement as an International Crime”, New York University Journal of International Law and Politics, vol. 23, 1991 12. Michael P Scharf & Suzanne Mattler, “Forced Marriage: Exploring the Viability of the Special Court for Sierra Leone’s New Crime Against Humanity” (2005) 1:2 Case Research Paper Series in Legal Studies 13. SIERRA LEONE TRUTH & RECONCILIATION COMMISSION, Witness To Truth: Report of the Sierra Leone Truth (2004), available at http://www.trcsierraleone.org/ 14. Special Rapporteur on Contemporary Forms of Slavery, Systematic Rape, Sexual Slavery and Slavery-like Practices during Armed Conflict, U.N. Comm'n on Hum. Rts. U.N. Doc. No. E/CN.4/Sub.2/2000/21 (Jun 6, 2000) (by Gay J. McDougall) 15. Susan McKay & Dyan Mazurana, Where are the Girls? Girls in the Fighting Forces in Northern Uganda, Sierra Leone and Mozambique: Their Lives During and After War (Montréal: Rights & Democracy, 2003) 16. The First Report on the Issue of Japan's Military “Comfort Women”, Centre for Research and Documentation on Japan's War Responsibility, 31 March 1944 17. United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, 4th Plenary Meeting, June 16, 1998, A/CONF.183/SR.4, p. 82; ILC Draft 1994

18. Valerie Oosterveld, Sexual Slavery and the International Criminal Court: Advancing International Law, 25 Mich. J. Intâ&#x20AC;&#x2122;l L. 630 (2004) 19. Valerie Oosterveld, The Special Court for Sierra Leoneâ&#x20AC;&#x2122;s Consideration of Genderbased Violence: Contributing to Transitional Justice?, 10 Hum. Rts. Rev. 81 (2009)

Progression of the defence of Superior Orders and Prescription of Law Sangeet Khurana Symbiosis Law School, Pune, India sangeet.khurana@symlaw.ac.in

Abstract. The Rome Statute, even though, archaic in its fundamental principles still remains pertinent in the international milieu. While conventional warfare is not as frequent as it used to be, there have been many proxy wars that have been fought between states as well as non-state actors. This endows a responsibility on International Law to regulate and provide accountability for these altercations. Section 31 of the Rome Statute enlists the various defences available to individuals for crimes against humanity. Through the means of this paper, the author shall be delving into the defence of Superior Orders which is entailed under Article 33. The Article states that there shall be no assuagement from criminal responsibility for a person acting under orders of the Government or superiors unless they are legally obligated to do so; they are incapable of knowing the unlawful nature of their act and / or the order is in itself not manifestly unlawful. However, many critics believe that this is a deflection from the standards entailed in the Charter of International Military Tribunal of Nuremberg and subsequently, Rwanda and former Yugoslavia. Through the means of this paper, the author attempts to elucidate the history of this plea and how events like the Nuremberg trials have created impediments in aligning international legal jargon with the realities of contemporary military life. No law in this world is implemented without lacunae, so the author shall try and delve into the loopholes whilst providing the author's opinion on the overview of the law. It has to be mentioned that such an article, no matter how articulate, shall always be implemented circumstantially. This paper shall aim to understand the recent international sentiment and how this article has been shaped through various tribunals and international precedents. Keywords: Proxy Wars, Non-state actors, Superior Orders, Criminal Responsibility.

Objective

The objective of this paper is to ascertain the effect and the usage of the defence of Superior Order. Adopting the analytical approach, the author shall delve into its historical usage and how it could be pleaded keeping in mind the geo political scenario of the world.

Introduction

Modern armed conflict has changed the way in which we understand the fighting of wars and the breakdown of diplomatic discourse. The creation of larger weapons and the integration of technology into warfare has broadened the scope as to

what the International Law ought to concern itself with. Whereas traditionally human rights law has developed based on notions such as fair trial and on the rights of the accused, recently the focus has shifted towards the needs to prosecute person responsible of gross violations of human rights such genocide, crime against humanity or war crimes. The Rome Statute, which was created to enforce the provisions of the law of war and international criminal law on a complementary basis, already appears dated because it deals with war crimes in a very traditional manner. (Protocol, 1987)

The well-accepted justification for including the defence of Superior Responsibility is to enhance and ensure compliance with International Humanitarian Law. The first international war crimes tribunal established by the Nuremberg Charter provided that the accused have “the right to give any explanation relevant to the charges made against him”. (Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, and Establishing the Charter of the International Military tribunal ; Article 16(b) (d) and (e), (1951)) Nevertheless, the Charter did not give any definition o r list of the defences permissibl e. The only exception was with regard to the defence of superior orders. (1946) The drafters of the Rome Statute had to balance two competing interests (1) punishment consistent with the moral culpability of the accused; (2) the fact that a person acted under order of superior or government doesn’t absolve him from responsibility but is mere consideration for mitigation of culpability. (Geneva, 1949) The Rome Statute dedicates a separate article to the defence of ‘superior orders and prescription of law’. (Rome, 1998) The highly regimented structure of military forces, where lawful orders should be met with ‘prompt, immediate, and unhesitating obedience’, (Office, 1907) has given rise to a defence of superior orders, whereby an accused claims that they acted on the basis of orders from a superior which as a subordinate they were bound to follow. International criminal law has evolved in its treatment of the defence, from its rejection as an absolute defence at Nuremberg, to a more nuanced approach under the Rome Statute of the International Criminal Court. The argument that the accused acted under superior orders (plea of superior orders), along with the argument that the accused acted under a threat to himself (plea of duress), and the argument that the crime was for the accomplishment of a military mission (plea of military necessity) were also briefly discussed. (War, 1949) The 1949 Geneva Conventions makes no reference to specific defences in case of war crimes. The 1948 Genocide Convention includes only one provision relating to the defence of head of State immunity and declares it to be inadmissible. (Genocide, 1951) The Draft Code of Crimes Against Peace and the Security of Mankind of the International Law Commission states that the Court shall determine the admissibility of the defences “in accordance with the general principles of law, in the light of the character of each crime.” (G.A., 1991) However, the Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY) (Law, 1991) only mentioned “military necessity” as a ground of justification (ICTY, 1998) and “superior orders” as a ground of mitigation. By the means of this paper, the author shall attempt to ascertain the historical inadequacies and recommend on how the defence can be amended to ensure punishment for the accused, despite impediments in the global implementation of international law.

Research Methodology

The research is based upon the secondary sources of information collected through journals, articles, books and internet and has been referred throughout this paper.

Literature Review

Fortunately, there is no dearth of good literature that entails the nitty-gritties of the history of this defence and its implementation through the various tribunals that have been constituted through the United Nations over time. However, whilst the coverage of the historical aspect is quite intensive, many articles lacked the final solutions that the author may deem necessary based on the subject they have covered. In an article named “Superior Orders and the ICC” by the International Commission of the Red Cross, the historical aspect of this defence has been properly explained. The article takes the Nuremberg Trial as a reference point for the developm ent of this defence. The article commences from the Leipzig Trials where the subordinates had no power to question the military command (1923), even if it was manifestly illegal. However, the tables had turned by the time the standard work of Oppenheim was amended after the culmination of the second world war. A sub-committee for the defence of Superior Orders reported that the plea of superior orders shall only be valid if the order is given by a superior to an inferior in the normal scope of his duty and when the order is not blatantly illegal. They placed, unfairly, the burden on the sub-ordinate to prove his reasons for complying with an order he had been given through a hierarchal structure. The article also mentions the various times, the defence was moulded according to the circumstances of the case. Through international cases it was held, that when the illegality of the order was not known to the sub-ordinate, it could not have been used against him in a trial. (Council, 1946) The presence of intent of the inferior was given maximum importance. There was increasing medieval intern ational jurisprudence that wanted to converge the defences of Superior Orders and Duress. The paper also talks about solutions that have been suggested along the way, however they could not pave their way into the actual legislation because of an absence of mandate (N.M.T, 1948) or the suggestions being vehemently inapplicable. (Formulation of Nuremberg Principles, International Law Commission Yearbook, 1950) The document ends with denigration of the deflections ta ken in the article by the tribunal of Rwanda and Yugoslavia and its inconsistent implementation that leave the Statute’s preamble for universal justice, in tatters. In an article named “Modes of Liability : Superior Responsibility”, the EU tries to compare this Article with legislations present in many domestic legislations along with their congruencies and differences. It also delves into the difference in the definitions applied to the Tribunals of Yugoslavia and Rwanda. The article commences by differentiating between individual criminal responsibility and Superior Responsibility stating that the latter should be distinct and only applicable with the failure to punish or prevent the commission of a crime by his subordinates. The article further delves and underlines the importance of the relationship that ought to be shared between the superior and the subordinates for it to be legally construed as a case of superior responsibility. The article further mentions the factors to establish knowledge that have been used by the ICTY and the ICTR to establish that the superior possessed the knowledge about the said act. (Yugoslavia, 2007) The aforementioned article then mentions the integration of these elements and principles in domestic legislations that we shall not be delving into by the means of this paper.

In an article named “Command Responsibility” which has been developed by the International Criminal Law Sciences, the Legal Requirement Framework is applied as a method for interpretation and analysis of the crimes and modes of liability found within the International Criminal Court statute. The article entails the Elements of Crime, which is subsidiary legal source of the ICC. (ICC, 2002) The article mainly talks about the inclusion of modes of liability and the mental elements under the ambit of Article 30 of the International Criminal Court. The paper further endorses that the Elements of Crime, be defined step to step rather than in an haphazard manner. The article then enlists various factors that are pivotal to prove that a person was indeed a superior to the people he was delegating orders to, or otherwise. This involves a Superior-Subordinate relationship, identification of subordinates, effective control, remoteness of control. The article then further mentions the factors relevant for the determination of effective control. The author, then showcases scepticism in being able to prove the presence of effective control because of its multi-tangential nature. To briefly touch upon these facets, they include, presence of constructive knowledge, proof of causation, relationship to incitement of genocide. The author further comments upon the factors to establish knowledge of the superior in the commission of the act. In the author’s opinion, this article, while tackling the right problems, does so, while leaving the reader perplexed and disorientated. His continuous back and forth with examples of domestic legislations limits his readership as the author talks about universal applicability of principles of superior responsibility, however, fails to take universal examples in explaining his understanding and beliefs. The article however, was extremely helpful in learning the rudimentary principles and the progression of this defence through various tribunals and trials.

Analysis of Defences Available under Rome Statute

5.1

Historical Context

The principle of holding military and other superiors criminally responsible for the act of their subordinated has been well established in treaty and customary law (Yugoslavia, 2001). The Rome Statute dedicates a separate article to the defence of ‘superior orders and prescription of law’. The highly regimented structure of military forces, where lawful orders should be met with ‘prompt, immediate, and unhesitating obedience’, has given rise to a defence of superior orders, whereby an accused claims that they acted on the basis of orders from a superior which as a subordinate they were bound to follow. International criminal law has evolved in its treatment of the defence, from its rejection as an absolute defence at Nuremberg, to a more nuanced approach under the Rome Statute of the International Criminal Court. (Maogoto, 2007) It has been laid down in various international judgements that the aim of this defence is to ensure compliance with International Humanitarian Law.1 This principle is universally applied to international and non-international armed conflict (Yugoslavia, 2003). On July 17, 1998, the statute of the International Criminal Court (ICC) was established and implemented in Rome. (Meier, 1998) This conference and the institution of this court had been deliberated by delegates of 150 countries. The discussions varied on a plethora of issues like the jurisdiction and substantial and procedural law of the court. (Rome, 1998) The Rome Convention accompanied with the subsequent treaty culminated a multi-year process to establish a permanent criminal court. (The International Criminal Court : History,

Geneva Conventional Additional Protocol I, Article 86(1) and 87

Development and Status, 1998) At the forefront of this process, was the United Nations and the Non-Governmental Organisation (NGO) community ; two bodies that came together to depict humankind’s meek but determined progress towards curbing human right abuses. ( From Versailles to Rwanda in Seventy Five Years : The Need To Establish a Permanent International Court, 1998) There was a lot of hope pinned on this permanent court with worldwide jurisdiction over the most egregious crimes which will help vindicate the rule of law. (Judgement at Nuremberg, A Half-Century Appraisal,, 1995) The signing of this treaty did not come without its share of lack of conviction, especially from the United States. (The Court & the USA Doesn’t Want, 1998) The delegation also tried to convince other countries about the how this convention fell short of achieving its actual objective and raised concerns of vague phraseology. This court however, through the means of Article 33 was accused of being a dangerous withdrawal from the standards contained in the Charter of International Tribunal at Nuremberg. This same principle was also indoctrinated in the ad-hoc tribunals of Yugoslavia and Rwanda. (The Defense of Superior Orders : The Statute of International Criminal Court versus Customary International Law, 1999) 5.2

Pre-Nuremberg Scenario

The defence of superior order was truly a predicament before the First World War. Until, the 20th century, individuals were considered merely the subject matter of the intended legal instrument. Earlier, the only state to have devised a criminal accountability for the actions of their armed forces was the United States through the means of the Leiber Code in the wake of the American civil war. (Lieber, 1863) The code attributed responsibility of soldiers having committed offences on enemy states, as if they have committed them on their own territory. This played a major role in paving the global comprehension of jurisdiction of international law as the states and international organisations were the subjects of international law. (Shaw, 2003) Individuals were only considered relevant subjects of international law in the spheres of jurisdiction and the international protection of the individual by the state. Even though, individuals could not invoke and assert violations of international treaties in the absence of protests from the state of nationality (Noreiga, 1990), the application of international law shall be prevalent independently of the national legal system. (Versailles, 1919) The first instance of a discussion at the global level was the case of Peter von Hagenbach (The Evolution of Individual Criminal Responsibility under International Law, 1999), who was accused of state terrorism through murder, rape pillage, perjury during his occupation of the town of Breisach, on the Upper Rhine. He was tried in the market place and subsequent to a judgement by the ad-hoc tribunal consisting of 28 judges, he was executed in front of a large crowd. The common denominator of the trial of Von Hagenbach and the 21st century is the defence of Superior Order. (Schwarzenberger, 1959) This claim can be proved by the repetition of this issue in the International Military Tribunals at Nuremberg and Tokyo, also forming the cornerstone of the defence of Slobodan Milisovic’s defence before the ICTY (ICTY, 2001). This plea was also used in the Prosecutor v Tadic Interlocutory Appeal (ICTY, 1999) and was raised as an argument by the USA relating to the jurisdiction of the International Criminal Court. (Murray) However, it is pertinent to note that the defence of superior responsibility was not paid much attention, initially. The Geneva Conventions in 1864 and 1929 along with the Hague Conventions of 1899 and 1907 contained no provisions for punishment of individuals (Bassiouni, 1986) who violated the rules entailed in the treaty except a substantially inadequate Section 30 (Convention, 1907). The 1929 Geneva Convention for the Amelioration of the Armies in the Field attributed responsibility upon states for commission of internationally wrongful

acts committed by their individuals (Hague, 1907). It was later in the Conventions of 1949 and the Additional Protocol-I and II of 1977 that the attribution of responsibility was set upon the High Contracting Parties and there was a call for penal sanctions for persons committing or ordering the commission of grave breaches of humanitarian laws. (Convention, 1899) A systematic reckoning for the commission of international crime was endorsed just after the World War â&#x20AC;&#x201C; I by the Allies. (â&#x20AC;&#x153;Stay the Hand of Vengeance : The Politics of War Crimes Tribunals, 2000) Upon the culmination of the same, the Paris Peace Conference appointed the Commission on Responsibility of the Authors of the War and the Enforcement of Penalties for Violation of the Laws and Customs of War (Conference, 1919). It proposed to establish ad hoc tribunals for trying the persons responsible for violations of laws, customs of war or the laws of humanity (Prosecuting Crimes against Humanity ; Lessons of WW-I, 1989). The proposal, however, lacked effective implementation. (From Versailles to Rwanda in Seventy-Five Years : The need to Establish a Permanent International Criminal Court, 1997) However, it succeeded to establish the locus of criminal responsibility of individual for perpetration of war crimes as defined in international law (Cryer, 2005). Many have argued that the omission of the implementation of the proposals have altered the course of the history of International Criminal Law. The first treaty for the provision of enforcement measures for criminal responsibility of an individual was the Treaty of Versailles. (Powers, 1919) The treaty placed the powers to prosecute and punish individuals responsible for the violations of the laws and customs of law. However, Article 227 was considered extremely weak as the whole basis of the commission of the offence was a moral consideration. It is pertinent albeit to mention that, Article 228 of the treaty recognised the power of the Allies for prosecution of German Nationals accused of having committed war crimes. (Versailles, 1919) In the same period, Treaty of Sevres was intended to serve as a legal basis to prosecute Ottoman-Turkish officials who were deemed responsible for the first instance of Genocide. However, the implementation of this treaty was colourable upon the grant of amnesty endowed upon the Turkish Officials. After World War II, the world community recognised its lack of diligence in moving towards individual criminal liability and the violations thereof. Many of Hitler confidantes of Hitler, exclaimed in courts how a law would have encouraged sense of responsibility if the trials that were promised, were actually held. 5.3

Nuremberg & Tokyo Trials

After the atrocities committed by the Nazis in the Germany, the fascists in Italy and Japan, the Allied Powers moved swiftly towards a conclusion of agreements to prosecute and punish the persons found in violation of the laws of war and International Humanitarian Law. Customary International Law dictated that it was the governmental regimes and not the individual actors that were to face accountability for the violations during war time. (From Nuremberg to Rome : A Step Backward for US Foreign Policy, 1999) This facet of the law was the one that opened the floodgates for the defence of superior responsibility to be used by military personnel and civilian leaders by claiming they were merely following orders of superiors while committing war crimes and other serious offences. The Moscow Declaration on 1 November 1943 was the official declaration of the Allies that they would be holding trails against German and Japanese leaders responsible for commission of the war crimes upon the culmination of the war.

International Military Tribunals (IMTs) were set up in Tokyo (East, 1946) and Nuremberg (Nuremberg, 1945) with the purpose of prosecuting the German and Japanese officials. The primary objective of the tribunals was to convict those whose crimes had crossed transnational borders irrespective of the charge being framed against them was individually or as a part of the organisation. (London, 1945) This was to decimate the protection of the higher ranked officials and for placing accountability for crimes against their own people or on foreigners, on the people holding actual power. The author believes that these powers were endowed on the tribunals could be observed through the phraseology of the charter – “individuals have international duties that transcend national obligations of obedience imposed by the state”. The Nuremberg Trial can be accredited for giving internationally agreed upon principles like – individuals cannot use defence of superior orders if the scope of their action cross the national borders of his/her state (Charter, 1945) and personal responsibility for action, even those who acted under orders were held responsible. (Gasser, 2004) The Nuremberg and Tokyo trials were unprecedented in increasing individual responsibility. It also observed that the decision of placing personal liability on crimes punishable under International Law was a prudent and necessary decision for the maintenance of peace. (I.M.T, 1947) However, one has to hold it accountable for vague provisions that are easily defendable in courts of law i.e. Article 6(c) states that the perpetrators of crimes against humanity, “irrespective of being in violation of domestic law” essentially prohibited the defendants from raising defences of immunity based on national mandate of superior order. Nuremberg has been described as “the most magnificent drama ever enacted on the stage of history”. The landmarks judgements placed responsibility on senior officials for violation of international law and absolved the high office of the power of conferring immunity. The defence of Superior orders got sensationalised just because of the volume and frequency the term was thrown around at the Nuremberg Trials. Various army generals of the Third Reich, resorted to this defence, pleading being helpless to follow the orders to commit atrocities or risking being out there to fend for themselves and their family in crippling times, with the economies of various European economies being in tatters. This approach ruled out superior orders as a defence, and rendered it relevant only at the sentencing stage, although in finding Keitel guilty on all four counts, the Nuremberg Tribunal concluded that the defence of superior orders ‘cannot be considered in mitigation where crimes as shocking and extensive have been committed consciously, ruthlessly and without military excuse or justification’. (International Military Tribunal (Nuremberg), Judgment and Sentences) The Nuremberg Trial though, through the articulation of the charter even said that acting on a superior’s order would not absolve an individual of the punishment but could mitigate their punishment. (Nuremberg, 1946) Other tribunals operating in the post-Second World War period considered the defence of superior orders beyond the context of mitigation. (Garraway) The statutes of the contemporary ad hoc international criminal tribunals have included a provision on superior orders largely replicating the approach taken at Nuremberg. (Violations, 1991) 5.4

Contemporary Jurisprudence Post the Nuremberg & Tokyo Trials

The legacy of the Nuremberg Trials laid down the groundwork for substantial development of international law on the criminal responsibility to be placed on an individual for violations of international humanitarian and human rights law. The Nuremberg and Tokyo Trials can be accredited for the exploration of two avenues : placing an individual directly responsible for the violations of the

military during war time, and the regularisation of conduct of the state, in the times of war and peace, which has now emerged as the Human Rights law regime. (Abrams, 2001) The principle of Thomas Hobbes and Cicero which imputes the soldiers and holds them not responsible for obeying authority. (Hobbes, 1983) This rationale has been used in various landmark cases including the Einsatzgruppen case (Mendelsohn, 1978), in which the USA pursued high level officers of Germany who accompanied the Soviet Union army in Poland, rounded up some civilians and executed them. The court also held that the subordinate is only to obey the lawful orders of his superior and upon acceptance of a criminal order, accompanied with malice of his own, shall bar him from using the defence for his mitigation. The court even noted that it had the benefit of the precedent of Imperial Germany to the same effect. (Obidience of Orders and the Law of War : Judicial Applications in American Forums, 1999) The Nuremberg principle, got global recognition upon the endorsement of the same, by the General Assembly. This embarked the movement towards a gradual process of precise formulation and consolidation of principles and rules which would eventually be implemented through treaties which included a United Nations Commission for the Investigation of War Crimes and debated the rules and structures to be laid down for such trials. An American Draft suggested that the defence of superior responsibility should cease being absolute in nature, and should only be considered for the mitigation of punishment. (Jackson, 1945) The charter of the International Military Tribunal further said, that it should only be considered in mitigation of punishment, only when such is required to be done to meet the ends of justice. (IMT, 1945) Some judges at Nuremberg even contemplated the possibility of withholding mitigation in the absence of a moral choice which was defined as a personal capacity to act differently without risking oneâ&#x20AC;&#x2122;s own life or the lives of his family. (Superior Orders and the ICC : Justice Delivered or Justice Denied, 1999) The judges also held that such moral choice ran in congruence with the defence of duress, and indeed there was a thin line between the two defences. (The Evolving Jurisprudence and Practice of East Timorâ&#x20AC;&#x2122;s Special Panels for Serious Crimes on Admissions of Guilt, Duress and Superior Orders, 2010) There was deep unsettlement regarding the principles of Nuremberg, and the initial efforts for the creation of a court and the codification regarding the rejection of superior orders as a defence were distorted because of the Cold War tensions. (The Convention on the Prevention and Punishment of Crime of Genocide : 50 years later, 1998) The United Nations was unable to formulate a secure agreement on the proposed codifications entailed in the Nuremberg Principles. (The Rise and Fall of an Internationally Codified Denial of the Defence of Superior Orders, 1991) The International Red Cross also failed to include the principles of Superior Orders in the 1949 Geneva Convention and the 1977 follow-up protocol. There was heated debate among National Ambassadors if the soldiers were expected to think for themselves and decide if or not they wanted to obey orders. (Cross, 1972) Since, there is no explicit rejection of the defence still formulated, defence counsels usually assert this defence in arguments. A solider who is accused of war crimes, not including genocide or crimes against humanity, he may use one of the three defences to prevent liability â&#x20AC;&#x201C; legal obligation to follow, absence of knowledge of illegality of orders and orders not being manifestly illegal. (Statute, 1998) However, it is now general consensus that even though the attempts at codification of the Nuremberg Principles has failed, developing the international criminal law regime has called for an elimination of the defence when the order in question is manifestly illegal. (UNGAOR, 1946) Subsequently, the UN authorisation of the ad-hoc International Criminal Tribunal for Rwanda and the Special

Court for Sierra Leone both omit superior order as a defence but permit the use of the defence to mitigate punishment. (General, 2000) It is important however to note that many countries have accommodated the ICC standard on superior orders in their domestic law. (Defence of Superior Orders Revisited, 2005) The United States has deferred from ICC protocol and have implemented limited application of this defence contingent upon the knowledge of illegality possessed by the soldier. (Defence, 2005) Increasing the standard of the pre-requisite knowledge required for committing such heinous act extends the defence beyond an objective test of illegality but also creates a standard for knowledge to be required to be possessed by an ordinary individual. Discrepancies regarding the legality of an order are to be resolved in favour of legality. While Nuremberg was of historic importance for the international legal regime, it has not been entirely effective in achieving its goals. The level of autonomy and dependence on municipal legislation makes it easier for leaders to influence laws and tamper evidence proving their contribution in the crime. Unless there is an universal policing authority with universal jurisdiction deployed to explore the involvement of leaders in war crimes, fair and impartial investigations shall never be conducted to conclusively prove involvement of a superior.

Recommendations

In the authorâ&#x20AC;&#x2122;s opinion, the differentiation of the treatment and conviction of war crimes from crimes against humanity creates a discrepancy that is too blatant and complicated for international law to fix. (Cassese) Superior orders should be considered as a viable defence only when it can be proved that the agents of this tyrant were only deemed fit for this job and would not be able to fend and feed their family through any other profession. However, when atrocities are perpetuated by agents, in the presence of alternate professions, they should be tried like any other individual committing war crimes in a position of power. The following changes could increase possibilities for securing convictions in Superior Order cases 1. The defences of International Law and of warfare should be severed from the defences available to an accused individual in standard law. International disputes have different mannerisms and implications, and hence should be governed by global law which mould to the unique characteristics of international warfare. 2. The armies all across the world should be legally conscientious. There should be proper arrangement of military teams and management structure. There should be monetary renumeration for the amalgamation of legal and moral considerations into commands to create a system of checks and balances against both illegal orders and negligent supervision. 3. Powerful countries with vested interests fast track their interests at the UN, while turning a blind eye towards evident human right violations leaving the victims literally voiceless. There has to be higher accountability for proxy wars among developing nations. The international community seems to only take onus of actions in which it has ulterior motives and are monetarily invested. 4. There should be prompt investigation and prosecution of the abuses that come to public attention. (Rayman, 2006) The soldiers should be made to go through experimental learning to reject abusive actions and to develop reflexes to refrain from illegal conduct. Soldiers might not be able to use all the abstract rules of war and would need collaborated structures of organised knowledge on the subject along with practice of conduct on stress situations to be able to acknowledge and disassociate from mistakes soldiers have made in the past.

(Rules of Engagement for Land Forces : A Matter of Training not Lawyering, 1994) 5. The commands in the military should be more congruent with principles of law and morality. There should be the diffusion of soldier training and incentives so that the stance taken by superior officers can be regulated. Sometimes, it could be the vague interpretation of the command or law of the soldier that leads to the line of crossing illegality. The elimination of bad orders can prevent the problem of soldiers following illegal orders. 6. Current military practice has devolved from operating through a strict hierarchy and now is dependent on a decentralisation of the process and team-based decision making. Soldiers may even proceed without guidelines in emergency situations. For the pure purpose of implementation of law, there should be maximum flexibility for the arrangement of tactical operations to meet the desired goal of the mission. Each soldier to be guided to maintain attention to the laws of while operating in decentralised command and tacit orders even during emergency situations. 7. There should be more investigative powers vested in the International Committee. If the principle of deterrence is not integrated into the International law regime, masking evidence of atrocities becomes very easy for the government of the country in which the act has taken place.

Conclusion

International Law provides various defences to maintain the integrity of legal institutions. However, it is a matter of fact that only the gravest of offenses are taken cognisance of, by the International courts. Therefore, through all the cases of the Tribunals of Yugoslavia and Sierra Leone, the author feels the presumption of guilt in some cases would not be the worst idea. There has to be some scope of culpability for a head of state, under whose watch, mass atrocities and civil wars have been perpetuated. The logical incompatibility of defensive force and crimes within the jurisdiction of the ICC elucidates the essentially evil nature of these crimes and the intended prosecutorial strategy of the ICC. The ICC is a court established for ‘big fish’ — a relatively small number of leaders, organisers and planners — in cases of genocide, crimes against humanity, large-scale war crimes and aggression. The purpose of the Court is to end impunity for the perpetrators of ‘unimaginable atrocities that deeply shock the conscience of humanity’. In light of political and budgetary constraints, the energies of the prosecutor will be confined to addressing ‘the most serious crimes of concern to the international community as a whole’. Where a case satisfies the requirements of defensive force as outlined herein, this will serve as a strong indication that the case does not warrant the attention of the prosecutor.

References

1. 1987. Article 86(1) & 87, Geneva Convention Additional Protocol I & II. Geneva : s.n., 1987. 2. Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, and Establishing the Charter of the International Military tribunal (IMT), 82 UNTS 279, Article 16 (b), (d) and (e). (1951). (1951). 3. 1946. Article 8. Nuremberg Charter. 1946. 4. Office, United Kingdom War. 1907. Manual of Military Law. 1907.

5. Commissions, United-Nations War Crimes. 1949. Law Report on the Trials of War Criminals. London : s.n., 1949. 6. 1949. Geneva Convention. Diplomatic Conference for the Establishment of International Convemtions for Protection of the Victims of War. Geneva : s.n., 1949. 7. 1951. Convention on the Prevention and Punishment of the Crime of Genocide, . 1951. 8. 1991. International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991‟,. s.l. : Security Council, 1991. 9. Statute of the International Tribunal for Former Yugoslavia. 10. 1923. The Llandovery Castle Case, Annual Digest 1923-1924, Case No. 235, Full Report 1921 (CMD, 1450) P. 45. Case No. 235,, Germany : Imperial Court of Justice, 1923. 11. 1948. United States of America v Otto Ohlendorf i.e. the Einsatzgruppen Case. 9, s.l. : Trials of the Nuremberg Military Tribunal, Council no. 10, 1948. 12. 1949. Final Record of Diplomatic Conference of Geneva. Geneva : s.n., 1949. 13. Formulation of Nuremberg Principles, International Law Commission Yearbook. 1950. 1950. 14. 2007. Halilovic. IT-01-48-A, Bosnia and Herzegovina : International Criminal Tribunal for Yugoslavia, 2007. 15. 2002. ICC Statute Art. 9 and Elements of Crime document. New York : Official Records for the State Parties to the Rome Statute of the ICC, 2002. 16. 2001. Zejnil Delacic . Case No. IT-96-21-A, s.l. : International Criminal Tribunal for Yugoslavia, 2001. 17. Maogoto, JN. 2007. The Defence of Superior Orders in Olaoluwa Olusanya, Rethinking International Criminal Law: The Substantive Part. 2007, 89. 18. 2003. Enver Hadzihasanovic . Case No. IT-01-47-AR72, s.l. : International Criminal Tribunal for Yugoslavia, 2003. 19. Meier, John D. Schmertz Jr. & Mike. 1998. By Large Majority, U.N. Conference in Rome approves Permanent International Criminal Court. New York Times. 1998, June 18, 1998. 20. 1998. Article 26, Rome Statute of the ICC. 1998. 21. The International Criminal Court : History, Development and Status. Armstead, J. Holmes. 1998. Santa Clara : s.n., 1998. 22. From Versailles to Rwanda in Seventy Five Years : The Need To Establish a Permanent International Court. Bassiouini, M. Cherif. 1998. s.l. : Harvard Law Jounal on Human Rights, 1998. 23. Judgement at Nuremberg, A Half-Century Appraisal,. Cassel, Douglas W. 1995. 1180, 1183-1185, 1995. 24. The Court & the USA Doesn’t Want. Roth, Kenneth. 1998. New York : New York Review, 1998. 25. The Defense of Superior Orders : The Statute of International Criminal Court versus Customary International Law. 26. Gaeta, Paolo. 1999. Paris : European Journal on International Law, 1999, Vol. 19. 27. 1863. Instructions for the Government of Armies of the United States in the Field, General Orders No. 100. Leiber Code. 1863. 28. Shaw, Malcolm N. 2003. The Subjects of International law. s.l. : Cambridge University Press, 2003. 29. 1990. USA v Noreiga. 917 F.2d 1543, International Law Review : US District Court for Southern Florida, 1990. 30. 1919. Article 304(b). Treaty of Versailles. Versailles : s.n., 1919. 31. The Evolution of Individual Criminal Responsibility under International Law. Greppi, Eduaordo. 1999. 835, Turin : International Review of the Red Cross, 1999. 32. Schwarzenberger. 1959. International Law. London : Steven and Sons, 1959. 33. 2001. USA v Milosević. Case No. IT-94-1-A, Bosnia and Herzegovina : International Criminal Tribunal for Yugoslavia, 2001. 34. 1999. USA v Tadić. Case No. IT-94-1-A, Bosnia and Herzegovina : International CriminalTribunal for Yugoslavia, 1999. 35. 1998. Section 33 : Absolving of culpability of individuals acting on orders of Superiors. Rome Statute. Rome : s.n., 1998.

36. 1991. Commission to the General Assembly. New York : 43rd Session, UNGA, 1991. 37. Statute for International Tribunal for Former Yugoslavia. Article 2(d) and 3(b). 1998 : s.n. 38. 1998. Statute for International Tribunal of Former Yugoslavia. Article 2(d) and 3(b). Bosnia and Herzegovina : ICTY, 1998. 39. 1946. Trials of War Criminals. s.l. : Control Council No. 10, 1946.

Exclusion Clauses in Refugee Law: The Developments and Detachments from International Criminal Law Yifang Ye Hitotsubashi University, Japan jd161007@g.hit-u.ac.jp

Abstract. Asylum seekers suspected or convicted of international crimes, such as war crimes are excluded from the Refugee Convention according to Article 1 F. However such exclusion is not a conviction. 1F Excluded Asylum Seekers are excluded due to the suspicion of violating international humanitarian law, should not be treated as criminals until they are guilty. The controversy of 1F Excluded Asylum Seekers attracts public concern about the stateâ&#x20AC;&#x2122;s migration control and poses a challenge for the integrity of international asylum protection that it may create a safe havens for international criminals. Furthermore, 1F Excluded Asylum Seekers should not be subjected to deportation or extradition to the frontier of human right violation according to non-refoulement principle under international human rights law. The problem of 1F excluded asylum seekers is not straight forward because such persons are undesirable yet un-returnable for the host State and they are not necessary guilty of international crimes. To deal with the complexity, the author first looks into the practices in some Member States of the EU, which attract the most of cross regions asylum movement and cases of international crimes. The author then explores the rationale problems in exclusion clauses, followed by a discussion of legal grounds and different duty of human rights law and of extraditing or prosecuting international crimes under international law and national law. The author argues that a disconnect between policies for exclusion and criminal justice and a lack of harmonized municipal law leads to unfairness between excluded asylum seekers and does not serve the interests of either asylum and justice. Due to the insufficient capacity of Member States, it is necessary to develop a holistic and integrated approach at the EU level to solve the problems of this policy disconnect and the overly diverse municipal law. Keywords: Refugee Convention, Exclusion, Non-refoulement, War crimes, 1949 Geneva Conventions, International criminal law, jus dedere jus judicare.

Introduction

The refugee crisis is not a new phenomenon. In the 1940s, 60 million people were on the move in Europe as a result of persecution, conflict, and violence, according to the United Nation High Commissioner of Refugees (hereafter, UNHCR (UNHCR)). It has been over six decades since the 1951 Convention relating to the Status of Refugees (hereafter, the Refugee Convention) was drawn up, yet the Convention is as relevant today as it was at today time as 29.4 million people sought protection abroad at end-2018 (UNHCR).

Millions of asylum seekers ask for sanctuary by another State (hereafter, the country of Refugee) and a person who is seeking asylum will be considered as a ‘refugee ‘according to Article 1, if the person is outside their country of origin and unable or unwilling to return or to avail themselves of its protection on account of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular group, or political opinion. However, according to Article 1(F), not all of them are dissevered to be recognized as refugees. “Article 1F of the Refugee Convention6 determines that the provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) he has been guilty of acts contrary to the purposes and principles of the United Nations.” The rationale behind Article 1(F) is that certain acts are so grave that in order to preserve the integrity of the institution of asylum from being abused by alleged criminal enjoying undeserved international protection (2010 p. para 104) and ensure that perpetrators do not escape justice, or, as mentioned in the background note “the refugee framework should not stand in the way of serious criminal facing justice” (UNHCR, 2003, p.3, para4). Therefore, excluded asylum seekers are ‘undesirable’ in the sense of being not eligible for protection from the international community. According to Aguado (2015, p.633), undesirable asylum seekers who are excluded from refugee convention is called 1(F) excluded asylum seekers. In this paper, the author draws attention to Article 1(F)(a) in particular that the Refugee Convention shall not apply to any person with respect to whom there are serious reasons for considering that the asylum seeker has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes. The legal issues regarding 1(F) excluded asylum seekers are not solely about refugee law but also (international) criminal law due to the ground of exclusion is the suspicion of the involvement of international core crimes. Under the general public international law, a State, as an entity, fulfills obligations and exercises rights. As the development of human rights protection in asylum and the inquiry of accountability resulting from the lessons learned from mass atrocities in the past decades, an individual is now directly or at least indirectly involving international law, namely refugee law (or asylum law) and international criminal law. The relationship between refugee law and international criminal law is not necessarily hierarchal just because of the individuals’ involvements. Insofar, a State’s legal actions, discussion regarding suspects of international crimes proceed separately and independently of actions regarding asylum seekers and alleged criminals. In the case of 1(F) excluded asylum seekers, the country of Refugee in international refugee law context is also the custodial State in international criminal law context (Aguado, 2015, p.633). While the 1(F) excluded asylum seekers should not remain in the country of Refugee, the non-refoulement principle, which will be discussed in the following section may prevent their removal. Furthermore, due to the reasons of exclusion, the criminal jurisdiction of the country of Refugee (custodial State) and the ‘aut dedere aut judicare’ (extradition or prosecution) principle on 1(F) (a) excluded asylum seekers may arise. The 1(F) excluded asylum seekers remaining in the country of Refugee attracts public concern about the country of Refugee’s inability to maintain migration control. The integrity of the international asylum regime

is at doubt when alleged criminals can stay in the country of Refugee, and no further criminal investigation toward them are taken. The author places focus on the undesirable nature of the 1(F) excluded asylum seekers’stay on the grounds of non-refoulement principle and what the country of Refugee could do or should do to 1(F) excluded asylum seekers from both perspective of refugee law and criminal law. In this paper, the author puts focus on the legislation and State practice of the European Union (hereafter the EU). The reasons for choosing the European States are two. First, the Member States of EU so far received a considerable amount of cross-region asylum applications. The 28 Member States of the EU together accounted for 66 % of new asylum claims in industrialized countries in 2014 (Eurostat) and the number of applications amounted to 1.26 million (Eurostat). The number of new applicants in the EU-28 in 2015 was about 95 % of total applications (1.3 million). Second, while receiving refugee across regions, some of the Member States, such as the Netherlands, Germany, and the UK, have been investigating and prosecuting 1F excluded asylum seekers. (Eurostat) In the next section, the author explored the State’s responsibility under international asylum regime, the rationale, and criteria of undesirability and the problems of the current mechanism for exclusion. In section three, the author addressed the obligation of‘ aut dedere aut judicare (extradition or prosecution)’ under international law, the different standard of proof, as well as the assessment of individual involvement on international core crimes between exclusion and criminal proceeding and States practices on prosecuting 1(F), excluded asylum seekers.

The Rationale and Criteria of Exclusion

2.1

Refugee Recognition and the State’s duty to exclude

The State parties of the Refugee Conventions have a duty to exclude applicants if there were serious reasons to believe that they were responsible for international crimes in order to preserve the integrity and viability of refugee law (Larsaeus 2004, 76-77). The Refugee Convention does not assign responsibility to State parties such as taking how many refugees or prosecuting 1(F) excluded asylum seekers. Whereas, providing international protection remains States parties’ right. No provision in the 1951 Refugee Convention, 1967 Additional Protocol, EU law and other international law obligates State to give asylum automatically other than examining asylum applications. In order to prevent diverging obligations from EU law and the Refugee Convention, the EU asylum acquis must be interpreted concerning the Refugee Convention, according to Article 78(1) and (2)of the Treaty on the Functioning of the European Union (hereafter, TFEU).2 Besides, the fundamental rights granted by the ECHR should be taken into account in the interpretation of the Qualification Directive as well on grounds of Article 6(3) of the Treaty of European Union (hereafter, TEU) and the Court of Justice of the European Union (hereafter, CJEU) ruling (Do¨rig, 2016, Article 1 MN 16).

As for subsidiary protections and other subjects that are only covered in the Qualification Directive, the Refugee Convention has little significance in interpretation. It’s noteworthy that the Qualification Directive does not cover all subjects in the Refugee Convention. The CJEU has no jurisdiction regard to subjects are only regulated by the Convention such as the prohibition of imposing penalties on the unlawful entry of refugees. See Article 31 of the Refugee Convention.

To ensure that the procedures for granting asylum are fair, effective and impervious to abuse throughout the EU, since 1999, the EU States have committed to establishing a Common European Asylum System, with some opt-out from the United Kingdom (UK), Ireland and Denmark (Hailbronner& Thym, 2016, p.1027)3 Under EU common asylum policy, the EU Member States comply with Directive 2011/95/EU on standards for the qualification of third-country nationals or Stateless persons as beneficiaries of international protection (UNHCR, 2005, p.13) (hereafter, the Qualification Directive) 4. While allowing the Member State to grant subsidiary protection5 for asylum seekers who deserve protection but have not yet qualified as refugees,6 the Qualification Directive also provides exclusion clauses in Article 12 (2) (a)7 and 17 (1) (a)8 that are similar or even identical to the Refugee Convention. The duty of Member States is to assess the relevant elements of the application and cooperate actively with the applicant to collect or access to certain types of documents that consist of a sufficient application and exclude the person for their alleged involvement of international core crimes, accordingly (ECJ, 2008) . According to Article 3 of the Qualification Directive, the Member States may

In accordance with Protocol No 22 on the position of Denmark and Protocol No 21 on the position of the United Kingdom and Ireland in respect of the Area of Freedom, Security and Justice annexed to the TEU and the TFEU, the United Kingdom, Ireland and Denmark opt out some measures on border controls and visas in respect of the Area of Freedom, Security and Justice. These three countries can decide whether to take part in the adoption and application of five main instruments of EU common asylum policy. 4 UNHCR (2005) The term ‘International protection’ comprises refugee status as well as subsidiary protection status as defined in Article 2 (e) and (g) of Qualification Directive. According to UNHCR (2005) ‘Each State is responsible for ensuring that the rights of its citizens are respected. The need for international protection therefore only arises when this national protection is denied or is otherwise unretrieved.’ Therefore, in the context of refugee law, international protection is often defined as protection from other States or international organizations. 5 ‘Eligibility for subsidiary protections’ is an asylum seeker who would face a real risk of suffering serious harm and who would not satisfy the requirements for refugee designation. According to the Article 15 of EU Qualification Directive, serious harm consists of the death penalty or execution, torture, inhuman treatment or threat to life armed conflicts. 6 Member States must transpose the Qualification Directive into their national law by 31 December 2013. The wording of defining refugee in Article 2 of the Qualification Directive is essentially the same as Article 1A (2) para 1 of the Refugees Convention, yet it only applies to non-EU nationals and is not specific about the time of event that caused people to flee. 7 According to Article 12 (2) of the Qualification Directive (2011/95/EU), a third-country national or a Stateless person is excluded from being a refugee where there are serious reasons for considering that: (a) he or she has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he or she has committed a serious non-political crime outside the country of refuge prior to his or her admission as a refugee, which means the time of issuing a residence permit based on the granting of refugee status; particularly cruel actions, even if committed with an allegedly political objective, may be classified as serious non-political crimes; (c) he or she has been guilty of acts contrary to the purposes and principles of the United Nations as set out in the Preamble and Articles 1 and 2 of the Charter of the United Nations. Accordingly, Article 12 (2) also applies to persons who incite or otherwise participate in the commission of the crimes or acts mentioned therein. 8 Article 17 (1)(A) and (C) of the Qualification Directive (2011/95/EU) are identical to the Article 12 (2)(A) and (C), Only the Article 17 (1)(B) is different with Article 12 and provides a broader category of exclusion.

introduce or retain more favorable standards for determining who qualifies as a refugee or as a person eligible for subsidiary protection.9 Notwithstanding, as long as the conditions laid down in Article 12(2) and 17(2) are met, Article 3 will preclude the Member States from introducing or retaining provision granting refugee status or subsidiary protection. The country of Refugee is; therefore, mandatorily exclude the person in question. (2010)10 In contrast, an asylum seeker has a duty to submit as soon as possible all the elements needed to substantiate the application for international protection. Although Article 14(1) of the Universal Declaration of Human Rights states that “everyone has the right to seek and to enjoy in other countries asylum from persecution,” the Declaration is not a legally binding instrument to give individual human rights. According to Article 18 0f EU Charter of Fundamental Rights (hereafter, the Charter) in which the right to asylum shall be guaranteed with due respect for the rules of the Refugee Convention11. By following the Refugee Convention, neither the Qualification Directive nor the Charter gives an individual an absolute right to gain refugee status or subsidiary protection and the right to asylum should be interpreted as the right to make an asylum claim. 2.2

Exclusion Criteria and Problems within Exclusion Process

While exclusion clauses in Article 1F (a) of the Refugee Convention and Article 12 (2) (a) and 17 (1) (a) of the Qualification Directive only list crime against peace, war crimes and crimes against humanity, there are two crimes, genocide, and torture, could be included in the ambit of exclusion clauses according to the UNHCR’s guideline. Due to the Refugee Conventions and EU asylum law did not define the definition of aforementioned crimes, other international instruments could serve as vital references as Article 1(F)(a) refers to international instruments to define excludable crimes. The Rome Statute of the International Criminal Court (hereafter, ICC Statute) can be seen as a primary legal instrument for determination the defining elements of a crime (Do¨rig& Kraft, 2016, MN35). The ICC Statute provides definitions of genocide in Article 6, crimes against humanity in Article 7, war crimes in Article 8, and torture as one type of crime against humanity or a war crime. The exact term of crime against peace is not defined by international conventions12, yet it is considered interchangeable with ‘crime of aggression’ as defined in Article 8 bis of the ICC Statute. 13

9 As

far as those standards are compatible with this Directive. See Article 3 of the Qualification Directive. 10 ECJ, B and D, C-57/09 and C-101/09, Judgment 9 November 2010, para 106-111. 11 Hailbronner, K. and Thym, D.(2016), MN63., ‘[t]he wording deliberately evades the designation of an individual right by referring to the guarantees under the Geneva Convention and the EU Treaties in an abstract manner…Moreover, the drafting history shows that the abstract wording was a deliberate choice reflecting a concern among the members of the Convention drafting the Charter about the implications of an individual right to asylum beyond the confines of the Geneva Convention.’ 12 UNHCR (2003), para 26. ‘The London Charter remains the only international instrument to contain a definition of this crime. It considers a crime against peace to arise from the "planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements, or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing". Clearly, the adoption of a definition of the "crime of aggression" for the purposes of the ICC Statute (Article 5(1)(d) and (2)) will provide much needed clarity regarding the scope of this offence.’ 13 According to Article 8 bis of the ICC Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression

Standard of proof requirement. According to UNHCR (2019, p121 para35), the standard of proof should be high enough to satisfy the “serious reasons” test in Article 1F (a) by providing ‘clear and credible evidence of involvement’ in excludable acts from the authority. Secret evidence and sensitive evidence that cannot be challenged by the individual concerned should not be the only source to exclude. (UNHCR 2019, p121 para36). If there was a compromise due to the danger to national security interests, procedural safeguards should be introduced in order to protect the applicant’s right to due process (UNHCR 2019, p121 para36). Interestingly, while the exclusion clauses in refugee law being structurally accessory to international criminal law in terms of the element of a crime (Kraft, I. 2016,), the requirement of the standard of proof and individual criminal responsibility regarding exclusion decision is not required to the level of criminal law. To determine exclusion, suspicion of committing a crime may be sufficient according to Article 1(F)a of the Refugee Convention and Articles 12(2) and 17 (1) of the EU Qualification Directive. The ambiguity of Article 1(F) begs questions. As the wording of Article 1(F) is unclear on the meaning of ‘serious reasons for considering,’ it opens the possibility of an expansive interpretation for State. During the drafting of the Refugee Convention as well as the drafting of Qualification Directive indicating (Do¨rig&Kraft, 2016, p.1207), the evidence standard requirement in the Refugee Convention which was lower than criminal conviction was deliberately designed in order to exclude alleged war criminals as broadly as possible for the benefits of the convention (Rikhof, 2012, p.98; Do¨rig&Kraft, 2016, p.1207). Although UNHCR urges States to give the applicant a benefit of the doubt and to introduce safeguard to the applicant, it also allows States to interpret Article 1(F) loosely. If the standard of proof to exclude is lower than the criminal standard, the people who are excluded may hardly be investigated or prosecuted. Assessing individual criminal involvement. According to Article 12 (3) and 17 of Qualification Directive, in order to make an accurate assessment and prevent arbitrary exclusion, a brief assessment of the applicant’s individual responsibility or involvement should be necessary before applying exclusion clauses to the applicant. In the context of refugee exclusion, the UNHCR interprets that individual responsibility arises, apart from the actual commission of the crime, where the individual made a substantial contribution to, the criminal act, knowing his or her act or omission would facilitate the criminal conduct (UNHCR 2019, p119 para18). The clauses are also applied to persons who incite or otherwise participate in the commission (UNHCR 2019, p119 para18). The way to assess personal involvement in excludable crimes is left with ambiguity. According to UNHCR (2019, p.119 para 18) to justify exclusion decision, States must establish the applicant’s individual responsibility to crimes a crime covered by Article 1(F). In UNHCR’s view, the applicant’s individual responsibility could flow from the person having committed or made a ‘substantial contribution’ to the commission of the criminal act, knowing his or her act or omission would facilitate the criminal conduct (UNHCR 2019, p.119 para18). Although what would constitute a substantial contribution is not specified in either the Convention or the UNHCR GUIDELINE, it appears to be knowledge of consequence and actual facilitation of commission of crimes, which opens for

which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.

extensive interpretation. The question arises whether ‘substantial contribution’ can be based on affiliation to a particular group or be assessed by categorizing.

The Contradictory Difference between Exclusion Policy and Criminal Proceeding

3.1

The threshold to exclude vis-à-vis the threshold to investigate or prosecute

If Article 1(F) on exclusion was applied loosely, a more extensive range of applicants might be excluded. Since the criminal standard is not required by UNHCR, the threshold of the evidentiary standard to apply exclusion is presumably lower than the threshold to proceed with criminal jurisdiction. However, Gilbert (2003, p.470) argues that the standard of proof should be equal to or, at least, approach the level of proof required for a criminal conviction considering the exceptional nature of exclusion and the protection imperative of the Refugee Convention. The ‘serious reasons for considering’ is not defined in the Convention (or elsewhere) which invites State to apply exclusion extensively and oftentimes incoherently. The preferable evidentiary standard in UNHCR guideline is ‘clear and credible evidence,’ but the wording itself is ambiguous. For instance, the Dutch government states that the application of Article 1(F) is about “more than merely a suspicion of 1F crimes” (Bolhuis& van Wijk, 2015a). In Dutch courts, however, the term ’clear and credible evidence’ could be interpreted as ‘plausible evidence that requires detailed motivation’ (Speckman, 2011, p.10) while the interpretations of ’clear and credible evidence’ in Canadian courts are ranging from somewhere between ‘mere suspicion(lower)’ to ‘balance of probabilities(higher)’ (Bond, 2013, p.22). The threshold to exclude is “serious reason for considering “on the one hand and the threshold to investigate or prosecute is “substantial grounds to believe” and to convict is “beyond a reasonable doubt.” In common law system, e.g., the UK. The standard of having to prove guilt is “beyond a reasonable doubt” has primarily been adopted in international criminal law (UKHL 1, 1935). Whilst in the civil law system, e.g., the Netherlands and Germany, a high degree of probability is required (Solan, 1999). In actual practice, however, the civil law and common-law standards for criminal cases are likely equivalents (Clermont and Sherwin, 2002, p.246). For the sake of analysis, this paper would refer standard of proof for conviction in both civil law and common law to prove beyond a reasonable doubt on the basis of broad acceptance of common law concept in international criminal law and tribunals (Schabas, 2004, p.155). Due to the threshold in exclusion is not referred to criminal law international or national, another question arises when an exclusion decision is made whether such exclusion would move to the criminal proceeding. In the Netherlands and Germany, once the exclusion is applied the exclusion case will be informed the domestic prosecutor for the purpose of further investigation (Bolhuis & van Wijk, 2015b; Singer, 2017; Human Right Watch 2014). Whereas in the UK, only some exclusion cases will be informed but in a less consistent manner (Bolhuis & van Wijk, 2015b, p.32, 36). For example, 1(F) excluded asylum seekers in the Netherlands are screened by the Immigration and Naturalization Service (Immigratie-en Naturalisatie Dienst, hereafter the IND) for possible involvement in international crimes. Even though the Dutch government has stressed that the consequences connected to the invocation of 1F should inter alia consist of criminal prosecution on the basis of universal jurisdiction (Bolhuis & van Wijk, 2015a, p.156) According to the Minister,

the standard to exclude can be regarded as being at least equal to criminal suspicion, and maybe more (Van Wijk, 2011: 320). Nonetheless, the general standard of proof in the IND for exclusion is somewhat ‘between’ suspecting and proving (Reijven & van Wijk, 2015, p.491)14. The IND is authorized to inform the Dutch Federal Prosecutor once they identify applicants excluded on the grounds of the suspicion of international core crimes involvements in the interest of the security of the State (Reijven & van Wijk, 2015, p.491).15 The prosecutor assesses the feasibility of criminal prosecution on the basis of inter alia the 1(F)-case file submitted by the immigration service (Bolhuis & van Wijk, 2015a, p30.) In practice, Article 1F has been invoked against 950 persons from 1992 to 2015 and Article 1(F)(a) is applied in most 1F cases (Bolhuis, Battjes, and van Wijk, 2017, p.66). However, so far four excluded asylum seekers have been convicted 16 and only two extradition requests were granted (The Hague District Court, 2009) (The Hague District Court, 2013). in practice every 1(F) file is submitted to the prosecutor, 1(F) excluded asylum seekers are arguably de facto treated as criminal suspects (Bolhuis & van Wijk, 2015b, p.157). The standard of proof in prosecution is considerably higher than that required for an exclusion decision. In the UK, the Supreme Court ruled that for exclusion decision the immigration administration should apply the particular words of exclusion standard of proof that is higher than ‘reasonable ground to believe’ but lower than ‘proof beyond a reasonable doubt’ rather than importing existing standard to exclusion (UKSC, 2012). It is an exceptional measure to issue exclusion decision, and only 0.05% to 0.18% among all applications is excluded (Singer, 2017, p.23)17. After exclusion, the war crimes team of the Metropolitan Police Counter Terrorism Command (SO15) is responsible for the investigation of all allegations of crimes provided in Article 1(F)(a) and the Counter-Terrorism Division (CTD) of the Crown Prosecution Service, Special Crime and CounterTerrorism Division is responsible for prosecution (Singer, 2017, p.27-28). According to Singer (2017, p.29), only exclusion cases that passed the ‘scoping exercise’ on the feasibility of investigation by the SO15 police will be referred to the prosecutor. So far, the process of referral between immigration, police and prosecution authorities in the UK has not yet yielded any convictions (Moore and van Wijk, 2015, p.95) In Germany, in the case of BVerwG 10 C 26.12, the Chechnyan Russian Citizen case in 2009, the Federal Administrative Court of Germany noted that for establishing reasons for exclusion, the standard of proof accordingly does not require proof beyond a reasonable doubt. The special section of German immigration bureaus is required to notify the German War Crime Unit (hereafter, ZBKV) and the examination of asylum application will be suspended (Human Rights Watch, 2014). Theoretically, the ZBKV then open investigations and notify the Federal Prosecutor Office if the suspected persons show their presence in Germany. The German Criminal Code (StPO) requires the Federal Prosecutors as well as police to initiate an investigation on suspicion of any offense committed by anybody of which it receives notice based on sufficiently reliable facts (Bohlander, 2011, p.69) The threshold of investigation is not strictly high. It only needs to appear possible that an offense may have been committed according to

Article 7 of Personal Data Protection Act (Wet Bescherming Persoonsgegevens, Wbp). Article 7 of Personal Data Protection Act (Wet Bescherming Persoonsgegevens, Wbp). 16 Two Afghans, one Rwandan and one Congolese were convicted. See Bolhuis & van Wijk, (2015b, p.166, note 22) for a listing of name and charges of these cases. 17 Between 2008 and 2015, Art. 1F(a) was relied upon by the Home Office in nearly 80 per cent of exclusion decisions, 127 out of 162 initial exclusion decisions. See Singer (2017, p.24) for yearly number. 15

the prosecutor’s criminal experience (Bohlander, 2011, p.70). Although an official record of 1(F) exclusion data and the following criminal proceeding is not available to the public, at least one asylum seeker, Onesphore Rwabukombe, from Rwanda is convicted on account of genocide in 2015 (Reuters, 2015). In addition, the German Federal Prosecutor has begun to investigate suspected war crimes committed in Syria, as the suspects may enter into Germany along with the refugee influx. (The Indian Express, 2016). Due to the ambiguous wording in exclusion, the standard of proof for exclusion varies among States. The Dutch and the British standard appears to be similar by requiring a minimum and a celling level on the one hand. The German standard of proof for exclusion does not have a minimum level which is less clear. While all three countries rarely prosecute the 1(F)(a) excluded asylum seekers. The different standards of proof between exclusion and prosecution and conviction can be one factor contributing to the lack of prosecution and conviction. The downside of a low standard of proof is that the prosecutor typically would not initiate a preliminary investigation at the exclusion stage. For example, in the Netherland, according to Bolhuis, M. et al., (2014) the officials of the IND should refer such a case to the specialized ‘1F-unit’, yet the ‘1F-unit’ officials seldom operate further inquiry on cases referred by the IND because the standard of proof is lower in an exclusion decision than in a prosecution decision. 3.2

Assessing the existence of individual responsibility in exclusion policy and criminal policy

The approach to assessing individual responsibility in war crimes, crimes against humanity and genocide is another example of the detachment of exclusion from criminal law and further shows the contradictory nature of exclusion criteria. In UNHCR’s view, the country of Refugee should assess whether there are serious reasons to believe that the asylum applicant makes a ‘substantial contribution’ to excludable acts (UNHCR 2003, para 18). Being a former senior member of a repressive regime involved in unlawful violence does not in itself entail individual liability for excludable acts (UNHCR 2003, para 19). However, UNHCR also accepts a presumption of responsibility if the individual has remained a member of an organization which ‘clearly’ engaged in international crimes or voluntarily joins a group whose purposes, activities and methods are particularly violent in nature (UNHCR 2003, para 19). In other words, a mere membership to an organization which allegedly committed international crimes covered by Article 1(F)(A) does not constitute a substantial contribution to excludable acts that would establish individual liability. If, however, the applicant has voluntary membership to a violent group which clearly engaged in international crimes, the applicant has to bear the burden of proof. In practice, principally a mere membership should not entail individual responsibility to excludable crimes according to UNHCR, some countries of Refugee still apply exclusion clauses categorically to applicants who were members of a criminal organization. For example, the Netherlands invokes Article 1F (a) of the Refugee Convention against Afghans as well as Iraqis categorically (Speckmann.2011, p11). Dutch categorial exclusion arises when an asylum seeker testifies that he or she has worked for the Afghan military intelligence service KhaD/WAD which authoritative reports indicate to be responsible for international crimes during the 1990s (Reijven & van Wijk, 2016, p496). By presuming responsibility, Dutch government justifies its application of the categorical approach. Dutch categorical exclusion approach proves the contradictory nature of exclusion clauses. The 1(F) excluded asylum seekers can challenge the assumption

by proving a significant exception (Speckmana, 2011, p12) or can use factors generally considered to constitute defenses to criminal responsibility, such as mental inability, superior order or duress (UNHCR 2003 para 22). Nonetheless, it is challenging enough for a governmental organ to acquire evidence for the prosecution, let alone an asylum applicant to get the proof from a country he or she fled. Furthermore, despite according to UNHCR exclusion should not base on sensitive evidence that cannot be challenged (2019, p121 para 36), the source of exclusion, namely policy brief of KhaD/WAD, was mostly confidential to the public until 2019 (Dutch Minister of Justice, 2019). The U.K. applied a similar approach to Dutch categorical exclusion 18 in the cases of Gurung in 2002 (UKIAT, 2000). In the Gurung case, the voluntary membership in an extremist organization amounted to “personal and knowing participation” or at least acquiescence to complicity in the crimes in question. The principle developed from the Gurung case was later applied in the UK Secretary of State’s exclusion decision on the JS (Sri Lanka) case. However, it was overruled by the Supreme Court in the JS (Sri Lanka) case in 2010. (EWCA, 2009) The Supreme Court quashed the decision on the JS case stating that the Secretary of State had wrongly assumed the respondent (the asylum seeker in question) being guilty of “personal and knowing participation” in such crimes automatically by his affiliation to the Liberation Tigers of Tamil Eelam (LTTE) (UKSC). Although the JS case was held in administrative matter instead of a criminal proceeding, the Supreme Court further held that the assessment of individual responsibility of war crime in the administrative decision should meet to the level of a criminal conviction (UKIAT, 2000)19. The approach to exclusion clauses that the Supreme Court took on the JS case was to exclude those who made substantial contributions to the crimes, not those who belonged to the organization (UKSC). A similar interpretation on the JS case can be found Germany. In the case of a former member of the Kurdish Workers’ Party (PKK) in 2013, the Federal Administrative Court of Germany upheld the asylum seeker's appeal (BVerwG, 2013). The 2013 PKK case concluded that exclusion from refugee status because of a foreigner’s participation in certain crimes or acts can be assumed if linkage to individual events can be established for the necessary principal act even under a lowered standard of proof in refugee law (BVerwG, 2013). As widely accepted principle in criminal law, the individual criminal responsibility only arises where the person concerned committed the objective components of the offense, accompanied by the requisite mental elements for crime such as intent or knowledge rather than affiliation to a group. In other words, mere membership in institutional framework or organization is by no mean equal to a substantial contribution to facilitating crime and is insufficient for conviction. This principle of an individual’s criminal responsibility is widely accepted in both common law and civil law system as well as by international criminal tribunal (Cassese, A. and Gaeta, P, 2013, p.163-164). The assumption of responsibility in the interpretation of exclusion which is allowed by UNHCR relieves States’ duty to establish individual assessment and results in a wider excluded group. Whereas, the 1(F)(a) excluded asylum seekers who are by no mean at a better position than State to access to evidence to prove innocence.

Although the U.K. opts out the recast Qualification Directive, it is still bound by the 2004 Directive which provides similar provisions regarding exclusion. 19 The Supreme Court further criticized the Gurung approach stating that “War crimes are war crimes... [a]nd actions which would not otherwise constitute war crimes do not become so merely because they are taken pursuant to policies abhorrent to western liberal democracies”.

The legal dilemma for the country of Refugee: Excluded yet un-returnable

The non-refoulemnet principle in human rights law that prevents removal It is under a nation's discretion to determine the detailed examination criteria and remove the undesirable persons. Due to the exclusion from the application of Refugee Convention as well as the Qualification Directive, the prohibition of expulsion or return (non-refoulement) in Article 33 of Refugee Convention or Article 21 of the Qualification Directive is not applicable to 1(F) excluded asylum seekers. In practice, once 1(F) excluded asylum seekers have entered the territory of the country of Refugees, the country of Refugee rarely sends 1(F) excluded asylum seekers back to their countries. For instance, Article 3 of ECHR or Article 3 of Convention against Torture may prevent removal could be sending 1(F) excluded asylum seekers back to their States of origin may subject them to potential inhumane treatment or death. 4.1

European Convention on Human Rights (ECHR)

The principle of non-refoulement in the ECHR is considered absolute. It is worthy to note that because of the ratifications of ECHR from State parties, the non-refoulement principle in the ECHR is considered as an obligation under treaty law instead of customary international law in the region (Gilbert, 2012, pp.186&189). The ECHR which has been ratified by all EU Member States provides human rights protections to any person who enters the contracting States’ territory. Such persons, regardless of their nationality criminal conviction, can file a complaint before the European Court of Human Rights (hereafter, ECtHR) against the territorial State party after exhausting internal remedies.20 According to Article 3 of ECHR, no one shall be subjected to torture or inhuman or degrading treatment or punishment. As a general principle, such acts must have been committed inside the territory of a State party or under the State party’s jurisdiction. Although Article 3 of ECHR does not clarify its applicability on alleged criminals of international crimes listed in the exclusion clauses, the ECtHR case law indicates that non-refoulement does apply to an individual regardless of their previous behavior or criminal record (Osuna, 2012, pp.88-91). For example, in Chahal v. the UK, the ECtHR held that an alleged terrorist could not be deported to India where there was a real risk that his rights under Article 3 to be free from torture would be violated (ECtHR, 1996). In the more recent Othman (Abu Qatada) v. UK case, the Court further reinforces this interpretation in ECtHR case law (ECtHR, 2012). 21

Article 34 of ECHR ‘ The ECtHR may receive applications from any person, nongovernmental organization or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto.’ 21 Othman (Abu Qatada) v. UK, ECtHR (2012), Appl No. 8139/09. Othman is a U.K. recognized refugee who was to be deported to Jordan for the interests of British national security. The Jordanian government has listed him as a terrorist and as a suspect of war crimes, it requested his extradition at first, yet it was turned down by the British government. However, along with some information indicating that he was recruiting new members of a terrorist group, the British Home Office decided to deport him because his residency would lead to a serious concern in Brittan. Othman claimed that, if deported to Jordan, he would be at real risk of ill-treatment and an unfair trial. In the end, although ECtHR found no support for his claim based on Article 3, the court held that the UK’s deportation decision violated Article 6 of ECHR because Othman had met the 20

4.2

Convention against Torture

The prohibition of expulsion or return (non-refoulement) in Article 3 of the 1984 Convention against Torture which has been ratified by all EU Member States22 also provides that the expulsion or return of a person where there is a real risk of torture is a violation of the convention. However, the implementation of the 1984 Convention against Torture, including non-refoulement on the grounds of Article 3 is not under a judicial or administrative organization’s supervision. Besides, there is no indication that the non-refoulement obligation in the 1984 Convention against Torture is considered a norm of jus cogens or an erga omnes. The non-refoulement in Article 3 of the 1984 Convention against Torture is not as absolute as the ECHR. 4.3

Directive 2008/115/EC (Return Directive)

Finally, the Member State is also required to respect the principle of non-refoulement in EU law. A 1(F) excluded asylum seeker who has no legal permit to remain in the country of Refugee would become an illegally staying third-country national. To control and regulate illegally staying third-country nationals, the EU has adopted common rules on common standards and procedures in the Member States for returning illegal-staying third-country nationals in the Directive 2008/115/EC (hereafter, Return Directive) and all Member States are bound by it except the UK and Ireland.23 Based on human rights protection, Article 5 of the Return Directive provides that the Member States shall respect the principle of non-refoulement in all cases when implementing this Directive.24 The Member States shall not derogate its obligation to human rights law by implementing the removal measures. In other words, the Member States must ensure that any return of non-EU nationals, including 1(F) excluded asylum seekers, would not put them in danger. The excluded asylum seeker could seek a remedy before the CJEU if the country of Refugee fails to respect the common standards set in the Return Directive or other EU law. To some extent, Article 5 of the Return Directive thus constitutes a requirement, albeit less absolute, for the EU Member States to not return those excluded asylum seekers if there are reasons to believe such removal could result in a violation of the Return Directive (Lut, 2016). A dilemma for the country of Refugee is that although excluded asylum seekers are not qualified for international protection; the country of Refugee may not be able to return excluded asylum seekers because of the principle of non-refoulement in the ECHR, Convention against Torture and the Return Directive of EU law. In the Netherlands, there are 40 excluded asylum-seekers among 250 illegally residing excluded persons are unreturnable on the grounds of Article 3

high burden of proof required to demonstrate a real risk of a flagrant denial of justice if he were deported to Jordan. 22 See Article 3(1) ‘No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture’. 23 See preamble paragraph 26 of the Return Directive. All EU States except the UK and Ireland are bound by the Return Directive and are obligated to transpose the directive into municipal law. Four Schengen associated countries- Switzerland, Norway, Iceland and Liechtenstein- also take part in this Directive. The Return Directive came into force on 24 December 2014 and all Member States shall comply with it and transpose the common standards into national law. 24 See Article 5 of the Return Directive

of ECHR ‘non-refoulement’ accordingly (Dutch Ministry of Justice, 2008)25 whilst the number of non-refoulement in the U.K. and Germany is not disclosed26. Therefore, some 1(F) excluded asylum seekers are not only ‘undesirable’ but may also be ‘un-returnable.’ 4.4

The challenge in the criminal proceeding

If the country of Refugee took legal actions such as investigation or prosecution against unreturnable 1(F) excluded asylum seekers, their stay would not cause public concern about creating a haven for alleged criminals. To prosecute crimes listed in Article 1(F)(a) of Refugee Convention, the judicial authority of the country of a refugee can apply universal jurisdiction, irrespective of the location of the crime and irrespective of the nationality of the perpetrator or the victim (Randall, 1988; Reydams, 2003). However, as discussed earlier, 1(F)excluded asylum seekers are rarely prosecuted. Legal and practical reasons pose a considerable challenge for prosecutors or police to conduct criminal proceeding on universal jurisdiction cases. First, as discussed above, although the prosecutor may have to investigate obligatorily, the lower evidentiary requirement in exclusion results in the substantial insufficient grounds to believe for prosecutor move the proceeding forward to prosecution. Second, the information provided by asylum applicants during the first asylum interview which forms a significant ground of exclusion might be fabricated or exaggerated as they believe this ingenuine answers would show their wellfounded fear upon return to their countries of origins (Moore and van Wijk, 2015, p.96-98). In this case, the use of asylum accounts in a criminal case would be a comprise of the right not to incriminate oneself and endanger the applicant’s right to due process. Last but not least, to prosecute international crimes that committed in foreign soil prosecutor need to access to evidence in foreign soil and secure witness testimony. However, countries of origin where the crimes were committed, may not be ready or willing to cooperate with the country of refugee (Bolhuis&van Wijk, 2015b, p.157; Singer, 2017, pp.27-29). Prosecution, therefore, is frequently infeasible due to the lack of mean to acquire further evidence. 4.5

Consequence of exclusion

The consequence of adopting a lower evidentiary requirement for exclusion is that excluded persons are denied the access to Refugee Convention as well as EU Qualification Directive with a more significant doubt about their involvements in criminal activities that would be impermissible in the context of a conviction under criminal law. On the one hand, States are obligated to exclude underserved asylum applicants from preserving the integrity of refugee law. On the other hand, reversing the burden of proof to who are already at a vulnerable position also deviates from the purpose of the Refugee Convention. The 1(F) excluded asylum seekers may live in legal limbo because they have limited to no legal permission in the country of Refugees. For instance, in the

However, it is unclear that whether all unreturnable persons are excluded on grounds of Article 1(F)(a) of Refugee Convention. Dutch Ministry of Justice (2008), Notitie betreffende de toepassing van artikel 1F Vluchtelingenverdrag, 6 June 2008. 26 According to Singer(2017, p.17), there are 1573 foreign national offenders’ appeals (out of 13494) against deportation allowed on human rights ground between 2009 to 2015. It is unknow to public how many of these foreign national offenders are 1(F)excluded asylum seekers. And the human rights grounds are not limited to Article 3 of ECHR of non-refoulement and may include serious illness or other reasons.

U.K., excluded persons who cannot be removed to their countries of origin may be granted a maximum of six months permission to stay (Home Office, 2015). As temporary permission is a measure of tolerance, the restrictions on employment, residence, education, a duty to report to an immigration officer regularly imposes on excluded asylum seekers (Home Office, 2015). In addition, excluded asylum seekers do not have access to public funds and social welfare. On the other hand, in the Netherlands, persons once excluded bear the duty to leave and will receive an entry ban that curbs other forms of residence (Bolhuis, Battjes, and van Wijk, 2017). However, 1(F) excluded asylum seekers often remain in the country of refugee for a considerable time and in some cases may more than a decade without legal permission or in some case ending up in an indefinite period of detention (Reijven &van Wijk, 2014a, p.12; Singer, 2017, pp.20-22).

Concluding remarks and recommendations

The country of Refugee has a duty to assess and exclude asylum applicants who are suspected of international core crimes and is neither obligated to grant asylum nor required to prove the applicant guilty when making exclusion decision. It is hard to argue the purpose of exclusion clauses that persons who are underserved asylum should be excluded from protection. However, the flawed institutional design and diverse implementation of exclusion clauses are not necessary for the favor of preserving the integrity of asylum law while creating an extreme uncertainty for the excluded persons with little hope. While demanding States to abolish any control on exclusion is not only irresponsible but impractical, it is necessary for States and UNHCR to redesign the current exclusion clauses for the purpose of the Refugee Convention. The ambiguity in Article 1(F) is the significant factor of confusion and contradiction among exclusion decision and criminal proceeding. To solve the problem of conveniently extensive interpretation from States, modifying Article 1(F) is inevitable. Changing the contradictory interpretation provided by the UNHCR is the first step toward modification. Although it would be ideal if States are obligated to assess exclusion according to the criminal standard of proof considering the consequence of exclusion, it would be too radical to achieve without a throughout the discussion on implementation. In the transitional period, it should be a priority for asylum authority to revoke or terminate exclusion decisions after the disposition of prosecution is made by the criminal justice system. Remaining excluded decision will become a punishment rather than an administrative measure for excluded persons if the judicial authorities decide not to proceed with further action. It is feasible to refer the exclusion decision to criminal jurisdiction authorities for the purpose of investigation or prosecution. The Netherlands, the UK, and Germany, which all establish special units to follow up investigation or prosecution after initial exclusion should be a model for other countries. Finally, taking a categorical approach to assessing individual responsibility should be considered as a violation of the Refugee Convention. The UNHCR should not permit assumed responsibility that imposes the enormous amount of burden to asylum seekers. Despite the solution to the 1(F) excluded asylum seekers is not straight forward, UNHCR and States should employ a more integrated approach toward exclusion and take into account developments in international criminal law and human right law

References 1. Aguado, S., States Responsibilities in the Fight against Impunity for War Crimes in the Refugee Law Context: The Need for a European Integrated Approach, in Goodwin-Gill, G. and Weckel , P. eds. Migration and Refugee Protection in the 21st Century, International Legal Aspects, 1st edn. in , 2015, 632-664. 2. Bergsmo, M. and Triffterer, O. In: Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court. 1st edn. In Auflage Publisher, 1999, at preamble, margin Nos. 16 and 17. 3. Bolhuis, M. et al., Refugee Exclusion and Extradition in the Netherlands, Rwanda as Precedent, Journal of International Criminal Justice ,2014, 12,1115-1139. 4. Bolhuis, M.P. & Wijk, J. van (2015a). Alleged war criminals in the Netherlands; excluded from refugee protection, wanted by the prosecutor, European Journal of Criminology, 12(2), 151–168. 5. Bolhuis, M.P. & Wijk, J. van (2015b). Study on the exchange of information between European countries regarding persons excluded from refugee status in accordance with Article 1F Refugee Convention. Final report of a study commissioned by the Norwegian Directorate of Immigration, UDI. Retrieved from https://cicj.org/wp-content/uploads/2012/11/Bolhuis-Van-Wijk-2015-Study-on-the-exchange-of-information-on-1F-exclusion-between-European-countries.pdf [Viewed at September 15, 2019] 6. Bolhuis, M.P., Battjes, H. & Van Wijk, J. (2017). Undesirable but UnreturnableMigrants in the Netherlands, Refugee Survey Quarterly, 36(1), 61–84. 7. Bond, J. (2013). Principled Exclusion: A Revised Approach to Article1(F)(a) of the Refugee Convention. Michigan Journal of International Law, 35(1), 1-57. 8. Cassese, A. and Gaeta, P. eds. (2013). International Law, 3nd edn. Oxford: Oxford University Press. 9. Clermont, K. M.& Sherwin, E. (2002). A Comparative View of Standards of Proof. American Journal of Comparative Law, 50(2), 243-276 10. Cryer et al. eds. (2014), in Introduction to International Criminal Law and Procedure, 3rd edn. (70-89). Cambridge University Press. 11. Do¨rig, H. & Kraft, I (2016) . Asylum Qualification Directive 2011/95/EU. In: Hailbronner, K. and Thym, D. (Eds.), EU Immigration and Asylum Law. A Commentary (2nd ed.), (pp.1108-1283). Hart Publishing. 12. Dutch Ministry of Justice (2008), Notitie betreffende de toepassing van artikel 1F Vluchtelingenverdrag, 6 June 2008. 13. Gilbert, G. (2012). Human Rights, Refugees, and Other Displaced Persons in International Law. In De Vet, E. and Vidmar, J. (eds.), Hierarchy in International Law (1st edn.), (pp.176-205) . Oxford: Oxford University Press. 14. Hailbronner, K. and Thym, D. (2016). Legal Framework for EU Asylum Policy. In Hailbronner, K. and Thym, D. (Eds.), EU Immigration and Asylum Law. A Commentary (2nd ed.), (pp.1023-1053). Hart Publishing. 15. Human Rights Watch (2014). The Long Arm of Justice-Germany. Retrieved from https://www.hrw.org/report/2014/09/16/long-arm-justice/lessons-specialized-warcrimes-units-france-germany-and#ba01bf [Viewed at September 15, 2019] 16. Larsaeus, N. (2004). The relationship between safeguarding internal security and complying with international obligations of protection. The unresolved issue of excluded asylum seekers, Nordic Journal of International Law, 73(1), 69–97. 17. Lut, F. (2016). Return Directive 2008/115/EC. In Hailbronner, K. and Thym, D. (Eds.), EU Immigration and Asylum Law. Commentary (2nd ed.), (pp.658-763). Hart Publishing. 18. Moore, B. & van Wijk (2015). Asylum-seekers falsely implicating themselves in international crimes: Should they be informed of the existence of Article 1F of the Refugee Convention? Migration Letters 12(1), 91-101. 19. Osuna, A. S. (2012). Treatment Proscribed under Article 3 of the European Convention on Human Rights. In Javier Gracia Roca & Pablo Santolaya (Eds.), Europe of Rights: A Compendium on the European Convention on Human Rights (1st edn., 2012), (pp. 65-91). Brill | Nijhoff.

20. Randall, K., Universal Jurisdiction under International Law, Texas Law Review, 1988, 66, 785. 21. Reydams,L.(2003). Universal Jurisdiction International and Municipal Legal Perspectives. Oxford: Oxford University Press. 22. Reijven, J. & Wijk, J. van., Caught in Limbo: How Alleged Perpetrators of International Crimes who Applied for Asylum in the Netherlands Are Affected by a Fundamental System Error in International Law, International Journal of Refugee Law, 2014, 26 (2), 248-271. 23. Reijven, J. & Wijk, J. van., Alleged perpetrators of serious crimes applying for asylum in the Netherlands: Confidentiality, the interests of justice and security, Criminology & Criminal Justice, 2015, 15(4), 484â&#x20AC;&#x201C;501. 24. Rikhof, J. (2012), The Criminal Refugee: The Treatment of Asylum Seekers with a Criminal Background in International and Domestic Law. Republic of Letters, 98. 25. Schabas, W.A. (2017), An Introduction to the International Criminal Court (5th ed.2017). Cambridge University Press 26. Singer, S. (2017). Undesirable and Unreturnable in the United Kingdom. Refugee Survey Quarterly, 36(1), 9â&#x20AC;&#x201C;34. 27. Solan (1999), Reforming the Burden of Proof in Criminal Cases: Some Doubt About Reasonable Doubt," 78 Tex. L. Rev. 105, 106, 118, 145 (1999) 28. Speckmann, D. (2011). Balancing Exclusion, Prosecution and Non-refoulement: The Application of Article 1F of the Refugees Convention in The Netherlands. ANU Centre for European Studies Briefing Paper Series, vol. 2 no.1, 1-40. 29. UNHCR, (2003) Background Note on the Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees, [online pdf] Retrieved from https://www.refworld.org/docid/3f5857d24.html [Viewed at September 15, 2019] 30. UNHCR, (2005). An Introduction to International Protection, [online pdf] Retrieved from https://www.unhcr.org/3ae6bd5a0.pdf [Viewed at September 15, 2019] 31. UNHCR, (2019). Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, [online pdf] Retrieved from 32. https://www.unhcr.org/publications/legal/3d58e13b4/handbook-procedures-criteriadetermining-refugee-status-under-1951-convention.html [Viewed at September 15, 2019]

Regulating Dual-Use Space Objects in an Era of Commercialization Nivedita Raju McGill University, Montreal, Canada niveditha.raju@mail.mcgill.ca

Abstract. With the dawn of industries such as space mining and space tourism, the future heralds an increase in the participation of non-State actors as well as the introduction of new technology in the outer space environment. This further increases the legal ambiguities surrounding dual-use space objects and may lead to conflict in the absence of regulatory clarification. The author’s objective is to identify these ambiguities under existing space law and recommend solutions to address the same. The author will introduce the topic by raising the question of whether legal standards restricting dual-use space objects may be imposed under Article I of the Outer Space Treaty, 1967 (OST). The author then conducts an analysis of the meaning of “peaceful purposes” and permissible “weapons” under Article IV of the OST to determine the scope of regulation. The subsequent section will examine previous and current attempts at preventing an arms race and regulating arms control. The author then considers applicable regimes which govern dual-use objects, followed by the identification of issues that would arise with a greater number of private entities in outer space, under the current law of armed conflict. The author’s findings will justify the need for enhanced regulation, particularly with respect to emerging technologies and the growing commercialization of outer space. The author concludes with possible measures to enable more efficient regulation of dual-use objects in outer space. Keywords: Space Law, International Law, Dual Use, Commercialization, Conflict In Outer Space.

Introduction

This topic demands regulatory attention, due to estimated projections for private entities in commercial activities in outer space, such as resource exploitation and space tourism. As a result, there is an urgent need to clarify uncertainties surrounding the dual-use nature of space objects so as to prevent conflict from occurring in outer space. The primary objectives of this paper lie in (i) analysis of lacunae under existing space law and dual-use technology regimes (ii) identification of ambiguities arising under dual-use objects in the foreseeable future and (iii) recommendation of solutions to address the same. The launch of Sputnik 1 by the Soviet Union is often hailed as the moment which sparked political debate for legislation on use and exploration of outer space. The efforts of the international community culminated in the Outer Space Treaty, 1967 (OST). (Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies , 1967) The “NewSpace” era during the early 2000s subsequently steered the growth of non-State actors in outer space. (Ram Jakhu, 2017) Now, with the dawn of industries such as space mining and space tourism, there will be an

introduction of new technology and equipment into the outer space environment by private entities. Outer space has been long been used by state governments for national interests, evident from the number of missions conducted by military personnel. The Travaux Preparatoires of Article IV of the OST reveals that the dual-use nature of space was considered by the delegations in discussions. Quoting Senator Gore, “There is, in any event no workable dividing-line between military and non-military uses of space. For instance, both American and Russian astronauts are members of the armed forces of their respective countries; but this is no reason to challenge their activities or to deprecate their accomplishments. A navigation satellite in outer space can guide a submarine as well as a merchant ship. The instruments which guide a space vehicle on a scientific mission can also guide a space vehicle on a military mission.” (UNGA, 1962) This issue has persisted ever since, gaining more relevance than ever today, due to the budding interest of non-State actors in outer space. The definition accorded to a dual-use object is aptly provided by renowned scholar Steven Freeland as “typically a commercial facility or resource that is also utilized by the military for military purposes.” (Outer Space, Technology and Warfare, 2014) To illustrate the blurry lines of dual-use in present day, I briefly invite attention to the Global Navigation Satellite System (GNSS), a generic term for satellite navigation systems that provide autonomous geo-positioning with global coverage. (A Brief History of Global Navigation Satellite Systems, 2012) GNSS networks initially assumed military roles by governments of US and Soviet Union, but its uses have evolved to play a key role in commercial purposes, including navigation, meteorology and communication. However, GNSS networks continue to be used by the military for security and strategic purposes. This military nature of GNSS makes such networks susceptible to non-kinetic attacks, elaborated in Section 2.2 below. As written by scholar Ram Jakhu, the intricacies of GNSS regulation thicken due to multiple stakeholders involved, including consumers, commercial entities, governments, homeland security entities, and military agencies, whose interests potentially conflict. (GSGStudypp. 183-204) Regulation of dual-use objects in outer space first raises the question whether any such restriction on exploration and use is permissible when Article 1 of the OST has expressly declared that outer space is free for exploration and use by all States. However, as contended by Carl Christol, “…ultimate test of the use and exploration of outer space is the test of reasonableness, and more particularly, reasonableness in the specific factual context of a given situation.” (Christol, 1966) Therefore, Article I can be interpreted as according a right with the corresponding duty on users to refrain from conduct of unreasonable acts and thus, proposed regulation for dual-use is permissible so long as it is “reasonable”. It is important to first study the correct interpretation of “peaceful purposes” and permissible “weapons” under Article IV of the Outer Space Treaty, to determine the scope of regulation. Following the analysis of lacunae under Article IV, the subsequent Section of this paper examines international attempts at preventing an arms race and regulating arms control. Thereafter, regimes specifically governing dual-use objects are presented, followed by identification of ambiguities that would arise with a greater number of private entities, under the current laws on armed conflict. These analyses will justify the need for enhanced regulation, particularly with respect to emerging technologies and the growing number of commercial ventures for space mining and tourism. The paper concludes with possible measures to enable more efficient regulation.

Lacunae under Article IV

2.1

Interpretation of “peaceful purposes” under Article IV

A detailed review of the Travaux Preparatoires of Article IV of the OST reveals that the interpretation of “peaceful purposes”, “military personnel” and “equipment” under Article IV generated great debate amongst the delegations. In fact, the US delegation was criticized for being inconsistent by the Hungarian and Polish delegates on this basis. (Summary Record of the 71st Meeting of the Legal Subcommittee, UN Doc A/AC.105/C.2/SR.71, 1966) Thus from the very beginning, the provocative question of what constitutes “peaceful purposes” has resulted in two different views. The first holds “peaceful” synonymous with “nonaggressive”, and the second view “peaceful” as strictly “non-military”. The former view forms the majority opinion based on prevailing State practice. Even authors such as Ivan Vlasic who are inclined towards a “non-military” interpretation have conceded that in practice, a purely non-military interpretation was never actually followed by States. (Legal Aspects of Peaceful and Non-Peaceful Uses of Outer Space. , 1992) The military use of outer space is hence permissible, subject to compliance with international law, as mandated by Article III of the OST, which includes a reference to the UN Charter. (Charter of the United Nations, 1945) Article 2(4) of the UN Charter prohibits “the threat or use of force” subject to exceptions enumerated in other provisions. Any move construed as a threat or use of force would therefore be considered a direct contravention of the UN Charter along with the OST. This provision is mirrored in the UN Declaration on Principles of International Law Concerning Friendly Relations and Co-operation of 1970. (Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States, GA Res 2625 (XXV), UN GAOR, 25th Sess., Supp. No 22, UN Doc A/2212, 1970) Thus applying Christol’s test of reasonableness as mentioned above, military activities may be conducted in outer space, so long as they are peaceful, i.e., nonaggressive. The key determinant of whether an act is “aggressive” rests on the intent underlying the use of the object in question. In addition to identifying intent, the ongoing international climate coupled with the technology itself must also be considered, yet it is this underlying intent that makes dual-use space objects a quandary for regulation, as discussed in Section 5. 2.2

Permissible “weapons” in outer space

The terms “place”, “install” and “station” convey a sense of fixed status. From the wording of Article IV, it is evident that the provision restricts such acts from being conducted on celestial bodies only, while it is silent on conventional weapons on military space stations in orbit, or weapons of mass destruction launched from earth to space or through space against a terrestrial target. In addition, Article IV does not explicitly prohibit the “creation” of weapons in outer space. This is relevant given that there will be increased activity in outer space if space mining and space tourism missions commence. However, I believe that the position on creation of weapons is clear, given that Article IV also uses the phrase “testing of any type of weapon”. This language was meant to be construed widely due to the use of the term “any”. In my view, creation of a weapon would involve testing the whole or part of such weapon at some point of the procedure, and scholar Stephen Gorove has indicated that even the testing of these components of a weapon would fall within the purview of this prohibition. (Arms Control Provisions in the Outer Space Treaty: A Scrutinizing Reappraisal, 1973) Additionally considering state practice on the definition of “weapons”, it appears that most

States consider weapons to include its components or functional parts. Subsection 1.4 of the Norwegian Directive defines the word “weapons” as “any means of warfare, weapons systems / project, substance, etc. which is particularly suited for use in combat, including ammunition and similar functional parts of a weapon.” (Defence, 2003) In the US, review of all “weapons or weapons systems” is required, in particular under Section 2(3) of the US Army Regulation. (Defence, 1979) Reading this in conjunction with the standard definition proposed by the US DOD Law of War Working Group, the term “weapons” refers to “all arms, munitions, materiel, instruments, mechanisms, or devices that have an intended effect of injuring, damaging, destroying or disabling personnel or property”, and the term “weapon system” refers to “the weapon itself and those components required for its operation, including new, advanced or emerging technologies which may lead to development of weapons or weapon systems and which have significant legal and policy implications. (Cross, 2006) It is pertinent to note that the language of Article IV only makes express mention of nuclear weapons and weapons of mass destruction in its first paragraph. The phrase “weapons of mass destruction” has not been defined in the OST, hence we turn to what this phrase would commonly encompass, such as nuclear, chemical and biological weapons. (Resolution 1540 Adopted by the Security Council at its 4956th meeting, UN Doc S/RES/1540, 200, 2004) Space weapons can be broadly grouped into three categories: nuclear, non-nuclear and non-dedicated weapons. The latter categories are those that do not destroy either a satellite or a missile but destroy their command, control and space surveillance equipment vital to the efficient operations of spacecraft and missiles. (Military Uses of Outer Space and International Law, 2017) Specifically, non-kinetic weapons include the use of cyberattacks and jamming or dazzling to interfere with a signal from a satellite. Jamming has been defined by the experts in the GSG Study above, as “a process of intentional interference with another satellite while dazzling involves blinding remote sensing capabilities with laser technology” (See above). In my opinion, the most significant failure of Article IV lies in its inability to regulate such technology, as the same could also include forms of non-kinetic weapons to attack other satellites. The lacunae of Article IV as presented above has spurred several international attempts at preventing conflict in outer space, ranging from measures to prevent an arms race in addition to controls on transfer of arms.

International efforts to prevent an arms race

3.1

UN Resolutions on prevention of an arms race in outer space (PAROS)

Admittedly, resolutions passed by the UN General Assembly are not binding on member States. However, acceptance by majority vote constitutes evidence of the opinions of governments in the widest forum for the expression of such opinion. Even when they are framed as general principles, resolutions of this kind provide a basis for the progressive development of the law and speedy consolidation of customary rules. (Brownlie, 2008) The Declaration of Legal Principles Governing Activities of States in the Exploration and Use of Outer Space (Declaration of Legal Principles Concerning the Activities of States in the Exploration and Use of Outer Space, GA Res 1962 (XVIII), UNGAOR, 18th Sess, UN Doc A/RES/18/1962, 1963) is a testament to this practice. Of course, complete international consensus is almost impossible to obtain, let alone state practice on this controversial subsect of law, yet resolutions pave the way forward for development and clarification of existing laws. In 1981, the General Assembly of the

United Nations introduced a resolution on the subject of preventing an arms race in outer space. (Prevention of arms race in outer space, UN Doc. A/RES/36/97C, 1981) The Resolution exhibited the General Assembly’s prioritization of further measures to prevent an arms race in outer space through “effective and verifiable bilateral and multilateral agreements” and resulted in the formation of a Committee specifically for this purpose in 1999. 3.2

Draft Treaty on Prevention of Placement of Weapons in Outer Space

The years following PAROS witnessed an increasing commitment by certain States to prevent the weaponization of outer space. This culminated in a draft jointly tabled by Russia and China at the Conference on Disarmament in 2008 titled “Treaty on the Prevention of the placement of weapons in outer space, the threat or use of force against space objects”, thereafter revised and submitted once again in 2014. (China, 2014) The PPWT has been criticized on several grounds, in particular for the absence of a verification regime and its proposed definition in Art. 1(b) of a “weapon in outer space.” There is also no mention of regulating terrestrial weapons which have anti-satellite capabilities. The draft PPWT has failed to garner the support of prominent space-faring entities around the world, most notably the US. (Foust) Russia and China have continued to pursue developments under PAROS and PPWT, with Russia even making a unilateral pledge not to be the first state to place weapons in outer space. Arguably, Russia’s unilateral declaration now forms a legally binding obligation to abide by this pledge, based on Russia’s intention to be bound as per the reasoning of the Nuclear Tests case. (1974) It remains to be seen whether Russia will stay true to its word. However it is inferred from Russia’s subsequent conduct of entering into bilateral agreements with other States, that this is indeed a binding obligation. This move too, did not receive favourable support from US and EU. (Current and Future Anti-Satellite Technologies: What Challenges Do They Present, 2017) Rather than be bound by the hard text of a treaty, it appears that the US prefers legal commitments of more flexible nature, such as voluntary transparency and confidence-building measures (TCBMs). TCBMs have been openly criticized by Russia and China in the Working Paper submitted to the Conference on Disarmament, stating “TCBMs are neither a substitute for the measures of arms control and disarmament, nor a precondition of implementation of such measures. Neither can TCBMs replace verification measures. However, TCBMs may facilitate work on disarmament commitments and measures of their verification.” (Working Paper on Transparency and Confidence-Building Measures in Outer Space Activities and the Prevention of Placement of Weapons in Outer Space, 2006) 3.3

Draft Code of Conduct

The European Union proposed a draft Code of Conduct, which was then revised as a draft International Code of Conduct for Outer Space Activities. (Union, 2014) The draft apparently seeks to enhance security but does not actually propose any new principles. Instead, it simply reaffirms existing provisions on the use of outer space for peaceful purposes, refraining from threat or use of force, avoiding harmful interference etc. Furthermore, the draft Code is not viewed positively by the US, who openly responded with a press release that “the United States has made clear to our partners that we will not enter into a code of conduct that in any way constrains our national security-related activities in space or our ability to protect the United States and our allies.” (Wall)

This draft is stuck in limbo, the last round of multilateral negotiations being conducted in 2015. Given that there has been no movement by other States towards developing this Code as a possible TCBM, it is unlikely to receive further support. 3.4

Group of Governmental Experts for TCBMs

In 2010, the General Assembly established a group of governmental experts (GGE) specifically for the purpose of studying TCBMs in outer space. (Transparency and confidence-building measures in outer space activities, UNGA Res 65/68, 65th Sess, UN Doc A/RES/65/68 , 2010) Pursuant to three sessions over the course of 2012 and 2013, the GGE submitted its consensus report to the General Assembly, wherein it agreed to a set of TCBMs in outer space activities for implementation by States and international organizations on a voluntary basis. (Transparency and Confidence-Building Measures in Outer Space Activities UNGA Res 68/189, 68th Sess, UN Doc A/ 68/189, 2013) Such TCBMs encouraged measures such as exchange of information on space policies, consultative mechanisms and outreach. Overall, the TCBMs signified a movement towards international collaboration and cooperation. The GGE study on TCBMs was conducted parallel to ongoing PAROS discussions under the Conference of Disarmament. 3.5

General Assembly Resolution on TCBMs

The General Assembly passed a resolution in December, 2016 (in which the US abstained from voting), which “Reaffirms the importance and urgency of the objective to prevent an arms race in outer space and the willingness of States to contribute to reaching this common goal…. Stresses that, while such an agreement is not yet concluded, other measures may contribute to ensuring that weapons are not placed in outer space”. (No first placement of weapons in outer space, UNGA Res 71/32, 71st Sess, UN Doc A/RES/71/32, 2016) Though not supported by the US, this move is viewed as a small yet positive step towards encouraging TCBMs among all States. As discussed further in Section 6, TCBMs are essential to future regulation of dual-use space objects. 3.6

Group of Governmental Experts 2018

The General Assembly through resolution 72/250 requested the UN SecretaryGeneral to establish a group of governmental experts (GGE) to “consider and make recommendations on substantial elements of an international legally binding instrument on the prevention of an arms race in outer space, including…..on the prevention of the placement of weapons in outer space.” (Further practical measures for the prevention of an arms race in outer space, UNGA Res 72/250, 72nd Sess, UN Doc A/RES/72/250, 2018) Therefore, the next two years will involve these GGE reviewing newer forms of security measures in outer space. It is uncertain as to how much political will can be bent in this contentious area, but the ongoing efforts of the General Assembly signify the high priority accorded to this issue and similarly display an optimistic direction for the international community.

3.7

COPUOS Efforts on Long-Term Sustainability of Outer Space

The Committee on the Peaceful Uses of Outer Space (COPUOS) has additionally contributed to the area of long-term sustainability of activities in outer space. In June 2016, the Committee agreed to a set of guidelines for the long-term sustainability of outer space activities (Report of the Committee on the Peaceful Uses of Outer Space, 59th Sess, UN Doc A/71/20, 2016) which further consensus on the preamble and nine additional guidelines in 2018. (Report of the Scientific and Technical Subcommittee on its fifty-fifty session, 61st Sess, UN Doc A/AC.105/1167, 2018) In 2019, COPUOS unanimously adopted these guidelines, to be discussed at the General Assembly later this year. This is a noteworthy development as it displays the ongoing commitment of COPUOS to regulate provisions on outer space activities, including prickly issues such as space debris removal. Further proposals may be considered over the course of 2019 by the Scientific and Technical Subcommittee or alternatively the Legal Subcommittee. (UNOOSA) This Section thus exhibits the numerous attempts continuously being made towards preventing an arms race in outer space. The lack of international consensus reveals the impediments of political division on such a sensitive area, as nations obviously prefer to be more nationalistic and defensive of their own interests.

Regulatory overview of dual-use technology

4.1

Missile Technology Control Regime

In 1987, the Missile Technology Control Regime (MTCR) () was adopted by select nations, borne from criticism of the Non-Proliferation Treaty of 1968 (Treaty on the Non-Proliferation of Nuclear Weapons, 1968) and the desire of adhering nations to coordinate their export controls to control nuclear proliferation. The emphasis of this regime is on controlling weapons delivery systems and transfers thereof, thus focusing on export rather than the actual components of such transactions. It is pertinent to note that the MTCR is not an agreement or convention in the traditional sense, but retains a voluntary character, to be given legal force by way of national enactment. As of September 2019, the number of partners is thirty-five. Paragraph 1 of the MTCR Guidelines states that “The Guidelines are not designed to impede national space programs or international cooperation in such programs as long as such programs could not contribute to delivery systems for weapons of mass destruction.” (Regime) The wording does not make any explicit reference to technologies such as non-kinetic weapons. The MTCR is comprised of Guidelines with an Annex and classifies ‘missile-related’ technologies into two categories, out of which Category I items transfers are viewed with a “strong presumption to deny.” Exports under Category II by contrast, are not strictly restricted, although members are still expected to exercise caution. It is under Category II that dual-use technologies are listed. There is more flexibility in these transfers, so long as they are not part of any ongoing matters which are the subject of global debate or apprehension. 4.2

Hague Code of Conduct Against Ballistic Missile Proliferation

The Hague Code of Conduct (HCOC) was adopted in 2002 by States concerned with the delivery of weapons of mass destruction through ballistic missiles. () The HCOC however differs from the MTCR in its approach, as it does

not discourage export or transfers, but rather establishes moral norms for the subscribing States. As of September, 2019, there are 140 signatories to the HCOC. () The HCOC involves an even more watered-down form of commitment as compared with the MTCR. The HCOC does not contain any provision enforcing these moral obligations in any manner and it is possibly this particular aspect that has led to significantly more support than the MTCR. The HCOC is therefore another instance of a voluntary regime which encourages implementation of TCBMs, including annual declarations to be submitted by States regarding ballistic missiles, space launch vehicles and pre-launch notifications, as stated in the HCOC. In addition to encouraging registration under the Convention on Registration of Objects Launched into Outer Space (Registration Convention) (. Convention on Registration of Objects Launched into Outer Space, 28 UST 695, 1023 UNTS 15, 1976) the HCOC has the potential to encourage States to develop a practice of notification for launches. Notably, the HCOC makes a clear distinction between missiles and launch vehicles. Para 2(g) specifically states that “Recognition that Space Launch Vehicle programmes should not be used to conceal Ballistic Missile programmes” and Para 3(d) mentions “To exercise the necessary vigilance in the consideration of assistance to Space Launch Vehicle programmes in any other country so as to prevent contributing to delivery systems for weapons of mass destruction, considering that such programmes may be used to conceal Ballistic Missile programmes.” This distinction is significant because it shows an attempt (regardless of weak enforcement), towards drawing a line between space technologies used in an aggressive manner and strictly civilian purposes. 4.3

Wassenaar Arrangement

The Wassenaar Arrangement (WA) () was formed pursuant to Cold War era Coordinating Committee for Multilateral Export Controls. The purpose of WA was to strengthen security at regional and global levels by encouraging greater transparency on transfer of arms and dual use technologies through national policies. Section I of the WA mandates its participants to ensure through national policies, that transfers of the said items do not contribute to the development or enhancement of military capabilities. Sub-section(2) states that the purpose of the WA is to “complement and reinforce” existing regimes and lists items for which the member States must apply export controls. Sec. II(3) of WA states that the decision to transfer or deny transfer of any item is the sole responsibility of each participating state. As per Sec. II(4), the WA also requires participating States to exchange information on deliveries of conventional arms to non-Wassenaar members. With India having acquired membership in 2017, there are now 42 participating States to the WA. () The WA has wider coverage as it includes dualuse goods, services and technologies as opposed to specific control of launch vehicles and missiles. However, while the reach of WA may be wider, there are perceptibly fewer member States of WA as compared with HCOC. 4.4

US ITARS

The US Department of State oversees export and import of defence-related articles and services as regulated by the Arms Export Control Act (AECA). (America) The International Traffic in Arms Regulations (ITARs) (America) implement the AECA. Specific goods and services that are designated as defence articles or defence services constitute the United States Munitions List (USML). Registration is the primary means used by the US government to obtain information on who is involved in certain manufacturing and exporting activities, as it is a precondition for the issuance of any license or other approval for export.

(Tronchetti, 2015) The US maintains a stronghold over ITARs specifically in light of its direct effects on the US space industry. From the year 1999, all satellite technology was classified as a “munition” and transferred to the USML. The repercussions of this transfer were substantial, resulting in criticism by manufacturers in particular, that the ITARs had caused a reduction on market share of American satellite manufacturers and had resulted in detrimental impact on their own commercial interests. This was because Chinese and European competitors were able to manufacture satellites which did not contain restricted components and therefore managed to escape ITAR regulation. This led to another reclassification of satellites and related components in 2014, so that they would not be considered munitions. However, to this day, ITARs continue to be criticized by US companies on the grounds that they prevent the space industry from truly flourishing. 4.5

EU Export Controls

The EU adopted a Code of Conduct on Arms Exports in 1998 () and then established a community-wide regime in 2009 through Council Regulation (EC) No 428/2009 setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items, further amended in 2014. (Union) The EU approach distinguishes between traditional arms, such as munitions and dual-use goods for the purposes of export control under these regulations. The aforesaid Code lays down eight criteria for consideration by the members of the EU regarding export of such items. A notable feature of the Code is a procedure for notification when one member permits a sale of arms when another state has refused the same. Although the Code remains a reflection of political will and retains non-binding qualities, scholars such as Tronchetti (see above) have adopted a positive outlook to the Code nonetheless, highlighting that it has created order and predictability in EU arms export.

Ambiguities of Dual-Use in the Commercialization Era

The increased participation of private entities in space requires us to determine how to tackle the dual-use nature of space objects and the ambiguities thereunder with more space objects serving a civilian purpose which may or may not be simultaneously serving military purposes. This results in potential issues under the law of armed conflict. Jus in bello, i.e. the law of armed conflict or international humanitarian law (IHL) is distinguished from Jus ad bellum, the law on the right to war. IHL is applicable to activities in outer space through the auspices of Article III of the OST which mandates State Parties to carry on activities in outer space in accordance with international law. Additionally in paragraph 86 of the Advisory Opinion on the Legality or Threat of Nuclear Weapons 1996 (1996), the Court affirmed that the entire law of armed conflict “….applies to al1 forms of warfare and to al1 kinds of weapons, those of the past, those of the present and those of the future.” In delivering this opinion, the Court also noted in paragraph 79, that the Geneva Conventions have “received broad accession and have been recognized as having acquired the status of customary international law”. Common Article 1 of the four Geneva Conventions and Additional Protocol I (API) impose a binding obligation on States to respect the Conventions (and Protocol) in all circumstances. Based on the aforesaid, IHL can be applied in a context involving civilians in armed conflict, including outer space.

Steven Freeland has criticized principles of IHL as being “one war too late” and that in outer space, we should therefore attempt to stop being “responsive” in developing law and adopt a more proactive approach. I agree with this view, and believe that the present application of IHL to outer space reveals alarming ambiguities in the dual-use context, which ought to be clarified to ensure that no such conflicts actually arise. Article 48 of API lays down the basic rule that civilian objects and military objects should always be distinguished from each other. The question arises then, how we would apply this principle of distinction to, say, a GPS satellite used to provide navigation services to the population of an entire state, which is also bring used by the military? Article 52(2) of API differentiates military objectives as “those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.” In our scenario then, the aforesaid dual-use GPS would be considered a legitimate target, as it falls within the latter definition. Further questions arise when the underlying “military” nature of an object may not be revealed until later use qualifies such an object with military objectives. The definition of “attack” under Article 49.1 of API is “acts of violence against the adversary, whether in offence or in defence.” The definition of attack is broad enough to encompass attacks by non-kinetic weapons as mentioned in Section 2.2 above, against such dual-use objects. What happens then, with an attack on a seemingly benign civilian object which later reveals a military objective? This links us to a connected question on perfidy. In my view, perfidy in outer space would be unlawful, based on Article 37 of API which defines perfidy as “acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence.” Article 37 also provides examples and lists “feigning civilian, non-combatant status” as one of them. Therefore, if a conflict occurs involving space object which was registered as a civilian object, but secretly harbours military objectives, this would be a violation of IHL. For these reasons, dual-use objects require to be clearly associated with one principal activity due to the principle of distinction. Furthermore, the application of the proportionality principle in IHL poses a further need for clarification. Article 51(5)(b) of API lays down attacks which are indiscriminate including “an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.” This complicates the aforementioned example of the dual-use GPS even further, as it is technically a legitimate military target. However, if it is destroyed, then the civilian part of the space object would also suffer damage. This could involve astronomical consequences for the civilians of that state. This brings us to subsequent question of whether such a situation could attract Article 54(2) of API which prohibits targeting of “objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works.” States such as India are space-faring nations yet with a heavy dependence on agriculture for the economy, thus profoundly dependent on space technologies of forecasting weather and climatic conditions. Indeed, Article 54(2) would apply, should an attack be deployed on an Indian space object responsible for these functions. However, the fact that the space object may also be responsible for military objectives brings us full circle to the question of distinction. From the scenarios mentioned above, it is thus established that there is a need to clarify the extent to which the laws of armed conflict apply to outer space

before further commercial space missions proliferate. In my opinion, conflict in outer space is not imminent, but can be prevented, if we adopt the “pro-active approach” suggested by Steven Freeland. Given the dual-use nature of space objects, we are at the stage where such clarification is vital. None of the existing regimes, binding or non-binding, advocate any solutions to the aforesaid issues. Notably, McGill University has undertaken a mammoth project on the Manual on International Law Applicable to Military Uses of Outer Space for the same, which could serve as the building block to address these ambiguities. (McGill)

Proposed Solutions

The study of existing regimes on dual-use technology, along with the numerous attempts being made to prevent an arms race in outer space, clearly exhibit an inherent hesitation of States, particularly space powers like the US, to commit to binding legal obligations. For this reason, even though a binding regime would have strong enforceability, the initial way forward apart from clarification of law, in my opinion, lies in formulating stronger TCBMs. The benefits of increased transparency should be further advocated to such States, as such increased transparency would actually serve to benefit all parties involved. The more protectionist a system is, the greater the likelihood of a mistakenly deployed military response. The need for TCBMs particularly on dual-use objects can be further advocated on the basis that industries for space mining and tourism require enhanced regulation for the market to grow. Commercial entities, especially private investors, are unlikely to invest in markets which have no guaranteed regulation. These benefits could be used as the basis on which TCBMs are advocated to other States. I believe that TCBMs are a positive step towards building stronger international ties. The beneficial aspects of TCBMs show that they could serve to clarify the intentions of States in outer space, an aspect crucial to the regulation of dualuse objects. Even if there are further developments in the legal framework governing outer space which are of a binding nature, such TCBMs can continue to exist side-by-side. The measures in question should be formulated taking into account existing legal regimes and obligations, such that the measures supplement these pre-existing duties of States and do not conflict or make the earlier obligations redundant. In my view, the Draft Code of Conduct is an example of such redundancy that we should firmly avoid, given its repetitive nature, ineffectual content and the overall reception of the international community. From my analysis of the specific regimes on dual-use objects, it is evident that States prefer measures which are more voluntary and “recommendatory” in nature such as the HCOC. I concede that the enforceability of HCOC greatly dilutes the regime and does not compel States to comply, however, if we formulate TCBMs which are voluntary yet basic and at the same time advocate the benefits of such measures, there is potential for TCBMs to assume greater significance the upcoming period of uncertainty. A simple measure such as the exchange of information, or a new model for consultation practices between States, could be the key determinant in preventing disputes in emerging industries such as space tourism. Apart from TCBMs, there is an additional need for accountability, to lay out a structure for credible repercussions for irresponsible behavior; this particular need has been highlighted with urgency by international experts in the GSG Study cited above. I acknowledge that this is possibly the greatest challenge in international space law, yet if clarification of accountability on certain subjects is prioritized, say for example, on non-kinetic space weapons, this would be considerable progress on preventing conflict in space.

My final recommendation for regulation of dual-use objects would be to encourage the practice of registration through the Registration Convention. As we know, Articles II and IV respectively provide binding obligations for registration and notification, however States have displayed complacency in both maintenance of national registry as well as UN notification spite of these regulations. Some States register or notify their space object long after it is launched, as exhibited by powerful spacefaring States such as China (2005) and the United Kingdom. () In addition to generating confusion of the launching State if more than one is involved, this lackadaisical attitude leaves ample room for questionable intent of space objects which are not registered. However, if we encourage the practice of registration, the underlying intent of the given object would be internationally known, addressing in part the issues raised under Section 5. At the same time, this would also promote the sharing of information amongst States in the movement towards enhanced transparency and security in outer space.

Conclusion

The dual-use nature of space objects has plagued us since this beginning of the space age, but in light of the uprising commercialization of outer space, there is an urgent need to commence pro-active means to address these ambiguities. This study has presented an overview of existing machinery to regulate dual-use nature of space objects and thereafter identified legal uncertainties arising from the same. Indeed, any object could be transformed into a weapon in outer space on the basis of its use. If commercial mining operations do commence, mining equipment such as rail-guns could be used for destructive ends as well. There is great uncertainty in the coming age and the existing regulatory regimes do nothing to clarify these ambiguities. This allows States to take advantage of legal lacunae and increases the possibility of conflict in outer space – a scenario that all nations should strive to avoid at all costs. Conflicts in outer space have implications not just for the States involved, but could additionally set hostile precedents for the entire global community. This is precisely why we must continue to advocate the complete prevention of any such conflict, actively advocate the benefits of TCBMs and consistently endeavor to strengthen international cooperation in outer space.

References 1. Convention on Registration of Objects Launched into Outer Space, 28 UST 695, 1023 UNTS 15. UNGA. 1976. 1976. 2. A Brief History of Global Navigation Satellite Systems. Bonnor, Norman. 2012. 2012, Journal of Navigation, p. 1. 3. America, United States of. Arms Export Control Act 1976, 22 U.S.C. 2778. 4. —. International Traffic in Arms Regulations 1976, 22 CFR 120. 5. Arms Control Provisions in the Outer Space Treaty: A Scrutinizing Reappraisal. Gorove, Stephen. 1973. 1973, . Georgia Journal of International and Comparative Law, p. 121. 6. Brownlie, Ian. 2008. Principles of Public International Law. Oxford : Oxford University Press, 2008. 7. Charter of the United Nations. UNGA. 1945. San Francisco : s.n., 1945. 8. China, Ministry of Foreign Affairs of People’s Republic of. 2014. Treaty on Prevention of the Placement of Weapons in Outer Space and of the Threat or Use of Force Against Outer Space Objects, proposed by China and Russia. [Online] 2014.

9. 10.

11.

12.

13.

14.

15. 16. 17.

18. 19. 20.

21. 22. 23. 24. 25. 26. 27. 28. 29.

30. 31. 32.

33.

https://www.fmprc.gov.cn/mfa_eng/wjb_663304/zzjg_663340/jks_665232/kjfywj_6 65252/t1165762.shtml. Christol, Carl. 1966. The International Law of Outer Space. Washington : U.S. Government Printing Office, 1966. Cross, International Committee Red. 2006. A Guide to the Legal Review of New Weapons, Means and Methods of Warfare: Measures to Implement Article 36 of Additional Protocol I of 1977. ICRC. [Online] 2006. https://www.icrc.org/en/doc/assets/files/other/irrc_864_icrc_geneva.pdf. Current and Future Anti-Satellite Technologies: What Challenges Do They Present. Grego, Laura. 2017. Montreal : McGill University Press, 2017. Conflicts in Space and the Rule of Law. Declaration of Legal Principles Concerning the Activities of States in the Exploration and Use of Outer Space, GA Res 1962 (XVIII), UNGAOR, 18th Sess, UN Doc A/RES/18/1962. UNGA. 1963. 1963. Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States, GA Res 2625 (XXV), UN GAOR, 25th Sess., Supp. No 22, UN Doc A/2212. UNGA. 1970. 1970. Defence, Norway Ministry of. 2003. Direktiv om folkerettslig vurdering av vapen, krigforingsmetoder og krigforingsvirkemidler, Directive on the Legal Review on Weapons. Methods and Means of Warfare. 2003. Defence, US Department of. 1979. Legal Services: Review of Legality of Weapons under International Law, . US Department of Army Regulation. 1979. EU Code of Conduct on Arms Exports . [Online] http://ec.europa.eu/external_relations/cfsp/sanctions/codeofconduct.pdf. Foust, Jeff. U.S. Dismisses Space Weapons Treaty Proposal As â&#x20AC;&#x2DC;Fundamentally Flawed. [Online] https://spacenews.com/41842us-dismisses-space-weapons-treatyproposal-as-fundamentally-flawed. Further practical measures for the prevention of an arms race in outer space, UNGA Res 72/250, 72nd Sess, UN Doc A/RES/72/250. UNGA. 2018. 2018. International Code of Conduct against Ballistic Missile Proliferation. [Online] https://www.hcoc.at/documents/Hague-Code-of-Conduct-A_57_724-English.pdf. International Code of Conduct against Ballistic Missile Proliferation. List of Subscribing States. [Online] https://www.hcoc.at/?tab=subscribing_states&page=subscribing_states. Legal Aspects of Peaceful and Non-Peaceful Uses of Outer Space. . Vlasic, Ivan. 1992. New York : Taylor and Francis, 1992. 1996. Legality of the Threat or Use of Nuclear Weapons Advisory Opinion. s.l. : ICJ , 1996. McGill. Manual on International Law Applicable to Military Uses of Outer Space. [Online] https://www.mcgill.ca/milamos/. Military Uses of Outer Space and International Law. Jasani, Bhupendra. 2017. Montreal : McGill University Press, 2017. Conflicts in Space and the Rule of Law. . Missile Technology Control Regime. [Online] http://mtcr.info/partners/ . No first placement of weapons in outer space, UNGA Res 71/32, 71st Sess, UN Doc A/RES/71/32. UNGA. 2016. 2016. 1974. Nuclear Tests (Australia v. France). s.l. : ICJ, 1974. Outer Space, Technology and Warfare. Freeland, Steven. 2014. 2014, . Aviation & Space Journal, p. 40. 2005. People's Republic of China, Note verbale dated 8 June 2005 from the Permanent Mission of China to the United Nations (Vienna) addressed to the Secretary- General, UN Doc ST/SG/SER.E/INF.17. 2005. Prevention of arms race in outer space, UN Doc. A/RES/36/97C. UNGA. 1981. 1981. Ram Jakhu, Joseph Pelton. 2017. Global Space Governance, An International Study. Cham : Springer International, 2017. Regime, Missile Technology Control. Guidelines for Sensitive Missile-Relevant Transfers. . [Online] http://mtcr.info/guidelines-for-sensitive-missile-relevant-transfers/. Report of the Committee on the Peaceful Uses of Outer Space, 59th Sess, UN Doc A/71/20. UNCOPUOS. 2016. 2016.

34. Report of the Scientific and Technical Subcommittee on its fifty-fifty session, 61st Sess, UN Doc A/AC.105/1167. UNCOPUOS. 2018. 2018. 35. Resolution 1540 Adopted by the Security Council at its 4956th meeting, UN Doc S/RES/1540, 200. Council, UN Security. 2004. 2004. 36. Summary Record of the 71st Meeting of the Legal Subcommittee, UN Doc A/AC.105/C.2/SR.71. UNCOPUOS. 1966. 1966. 37. Transparency and Confidence-Building Measures in Outer Space Activities UNGA Res 68/189, 68th Sess, UN Doc A/ 68/189. Experts, Group of Governmental. 2013. s.l. : UNGA, 2013. 38. Transparency and confidence-building measures in outer space activities, UNGA Res 65/68, 65th Sess, UN Doc A/RES/65/68 . UNGA. 2010. 2010. 39. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies . UNGA. 1967. s.l. : UNOOSA, 1967. 40. Treaty on the Non-Proliferation of Nuclear Weapons, 729 UNTS 161, 7 ILM 8809 (1968), 21 UST 483. 1968. [Online] July 1, 1968. 41. Tronchetti, Fabio. 2015. Handbook of Space Law. Cheltanham : Edward Elgar Publishing, 2015. 42. UNGA. 1962. Verbatim Records, First Committee, 70th Sess, UN Doc.A/C.1/PV.1289. s.l. : UNGA, 1962. 43. Union, European. Commission Delegated Regulation No 1382/2014 of 22 October 2014 amending Council Regulation (EC) No 428/2009 setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items. [Online] https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32014R1382&from=EN. 44. —. 2014. International Code of Conduct. [Online] 2014. https://cdn3eeas.fpfis.tech.ec.europa.eu/cdn/farfuture/05ntjiVf8oPvMqMbHUgmbT3jt81mZ8mAZUXdPiGiFwQ/mtime:1479119506/sites/eeas/files/space_code_conduct_draft_vers_31-march2014_en.pdf. 45. United Kingdom, Note verbale dated 24 June 2015 from the Permanent Representative of the United Kingdom of Great Britain and Northern Ireland to the United Nations addressed to the Secretary-General, UN Doc ST/SG.SER.E/INF/32. 46. UNOOSA. Long-Term Sustainability of Outer Space Activities. [Online] http://www.unoosa.org/oosa/en/ourwork/topics/long-term-sustainability-of-outerspace-activities.html. 47. Wall, Mike. NBC News. [Online] http://www.nbcnews.com/id/46030440/ns/technology_and_science-space/t/us-willing-work-code-conduct-space-activities/#.XAccTWhKg2w. 48. Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies. . [Online] https://www.wassenaar.org. 49. Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies. . Participants of Wassenaar Arrangement. [Online] https://www.wassenaar.org/participants/index.html. 50. Working Paper on Transparency and Confidence-Building Measures in Outer Space Activities and the Prevention of Placement of Weapons in Outer Space. Federation, The People’s Republic of China and the Russian. 2006. 2006. Conference on Disarmament

Misuse of Cyberspace by Unauthorized Organisations: A Critical Study on Acts of Cicada 3301 and Anonymous (Anons) Hemant Prasad Hidayatullah National Law University, Raipur, India hemantprasad1903@gmail.com

Abstract. This research delves into the misuse of cyberspace, impacts of numerous cybercrimes and cyber warfare on our daily life. Some incidents such as the acts of Cicada 3301 and a vigilante group known as Anonymous (Anons) are discussed, how they created the situation of chaos everywhere, though in the former case there were no victims and in latter, the victims were only those who were culpable of some crimes. By examining this, the author is of the view that, data has become one of the most valuable assets in the current scenario; it is one’s right to know who can access one’s data and what is happening with our information, any other person accessing one’s data without their authorization is a violation of their privacy. Cyberspace does not have boundaries. Owing to this absence of boundaries, some tests were laid down to determine the liability for Cyber Crime. Data for the paper has been collected from the various interviews, newspapers articles and published reports. The author opines that even the absence of victims cannot be a reason to overlook the potential threat in this case. Cicada 3301 showed us their capability by secretly recruiting the intelligent programmers and it is true that there was no injury to anyone, but still, there is a possibility in which there is a huge risk to the public at large and may cause havoc if such information misused, and it also infringes the fundamental right to privacy. In above-mentioned cases, the wrongdoers should be punished as per the law, instead of considering them as “Invisible Knights”. It is necessary to improve our digital security systems, recruit some professionals in data security programs with highly qualified in steganography and cryptography and to increase awareness among the people towards data security. Keywords: Cyberspace, Cybercrime, Cyberwarfare, Cicada 3301, Anonymous (Anons), Data Security, Right to Privacy.

Introduction In this era of automaton where the ideas like virtual reality and simulation is derived, it has transcended every existing perspective about technology that people had in the past. Terms like cyberspace or cyber world has opened gates for the new world where the life is expedient and progressive in nature. The gap between the physical world and cyberspace is diminishing day by day. Everyone’s life is somehow so intertwined with this virtual world that they cannot be segregated from each other. Every aspect of human life is adapting the cyberspace for its convenience instead. Data and information have become most valuable assets in the world. Internet has made life so convenient but also created some unforeseen threats. Misuse of cyberspace is occurring very frequently these days, one’s personal information stored in our computer networks and cyberspace is not invulnerable. Many hacker groups are always lurking in cyberspace behind veil of hidden or fake identities to exploit one’s

personal information and data. Due to absence of any boundaries in the cyberspace and lack of visual evidences it is very difficult to catch those criminals and impose jurisdiction on them. There are some cases in which victim themselves are oblivious of misuse of their personal data, they give their personal information initially unaware of the fact that it can be later misused in the future just like in the case of Cicada 3301. Virtual world is also exploited by some unauthorized organisation like Anonymous (Anons), they are group of hactivists who share same ideology and have common cause and want to spread their ideas and messages in all over the world through cyberspace. Organisation like Cicada 3301 should not be ignored they can be a potential threat to whole world and may cause havoc by misusing the information collected from intelligent individuals and it also infringes the fundamental right of privacy. Hactivists group like Anonymous should not be treated like ‘Invisible Knights’ and people should realise that there is a proper procedure for achieving justice, vigilantism is not always a remedy for everything. Nowadays everything is becoming technology oriented for ease and convenience; it also necessitates increasing awareness among people regarding data protection and what are various measures of it. Some individuals with highly qualified in steganography and cryptology should be recruited to improve and secure the state’s digital security systems.

Cyberspace and Our Daily Life Cyberspace27 is an electronic system that allows computer users around the world to communicate with each other or to access information for any purpose (Cambridge University Press). It is an artificial domain created by humans where they can interact, socialize and communicate with each other, through various electronic devices i.e. Computers, Mobiles and etc. Cyberspace is more than the internet, including not only hardware, software, data and information systems, but also people and social interaction within these networks and the whole infrastructure (Lehto, 2015 p. 6). It is difficult to isolate one’s life from cyberspace these days, when someone wakes up in morning first thing they will do is check their WhatsApp messages, notifications of Facebook or Instagram. Everyone’s life is intertwined with cyberspace in such a manner that it is not easy to segregate them from each other. It is embedded with almost every aspect of human life such as his work, social life, and family. The cyberspace has taken over many businesses, companies like Amazon, Overstock, Flipkart and etc. and they have become a great competition to physical markets, due to that so many people have to expend their business in cyberspace. A clothing company L.L. Bean is utilizing social media to interact with their customers. The company has a team of 10 people that interact with customers on and about social media. Around the Christmas season, L.L. Bean receives about 100,000 calls a day, and in the past month they’ve recorded 50,000 social media mentions on sites like Twitter, Facebook and YouTube (Aecurtis, 2011). Not only businesses but education is also transcended to virtual platform, to expand the scope of studying, make it convenient and easy. Applications like Study blue, Byju’s and etc. have created an alternate way, an online format to study with internet access. Other activities in the state like banking have expanded e-banking, commerce into e-commerce and many more.

William Gibson came up with this term in the beginning of 1980s in his science fiction novel Neuromancer.

These rapid adaptions of everything in the virtual world or cyberspace have given rise to certain questions: how does it works and is it safe? What if someone got injured in the virtual world, who will have the jurisdiction to punish the criminal? Is it possible to get injured and prove the injury in the world which does not even exists physically? These questions made concerned almost every person in the physical world like lawyers, sociologists, software engineers and etc. The growing role of cyberspace has opened up new opportunities but at the same time created new threats, which states have to live with, finding ways to identifying and mitigate them. The actors in the cyberspace are usually grouped in four categories, namely, organized criminals28, hactivists29, foreign governments and terrorist groups. Criminals are involved in all sorts of illegal activities, such as credit card details and other personal data theft, which are used for gaining economic benefits (Elias G. Carayannis, 2014 p. 262).

Misuse of Cyberspace Anything that is easy to use, reciprocally, easy to misuse. Every recipient of spam, unsolicited e-mail, which is often commercial in nature and sometimes downright absurd, has learned the truth of this statement as such messages make up an increasing percentage of daily mail. The “Bad Guys”, however they are defined, have access to all those facilities as well as to anonymity and, as with other technologies, criminals are always among the first to adopt them, in order to gain advantage over those who try to stop them. The mixture of simplicity and complexity of the technologies used in the cyberspace creates vulnerabilities that can be and are, exploited by hackers and other members of the ‘uncivil society’. The simplicity is inherent in the basic protocols that describe how the Internet works. These protocols are designed to well understood and documented. The complexity is present in the many different software implementations of the underlining infrastructure. Cyberspace is easy to hack. The history of hacking is almost as long as the history of computing itself (Stefano Baldi, 2003 pp. 14-16). Dangers in the internet can be arranged from multiple points of view. Threats to society’s vital function may directly or indirectly target the national systems and/or citizens, from within the or outside the national borders. By exploiting weaknesses/ vulnerabilities, threats my lead to a loss or takeover of assets. One of the common threats models is fivefold classification based on

Group of criminals gathered for an illegal activity usually for profit, and disciplined enough to be called organized. They are politically motivated, and in many incidents they forcibly involve with them to do business and etc. Its origin can be found from the hacker group “Cult of the dead cow” in 1994. They break into the security of others computer data or network through unauthorized access for social or political cause. An individual can also be a hactivist but generally they operate as a group of individuals working together, motivated by the same ideology without any harmful intent. There are some hactivists groups like Anonymous (Anons) who had gained everyone’s attention through their incredible hacks.

motivational factors: cyber activism30, cybercrime31, cyber espionage32, cyber terrorism33 and cyber warfare34. With the topology such as this motivates can reduced to their very essence: egoism, anarchy, money, destruction, and power (Lehto, 2015 pp. 8-9). Today the internet praxis is all pervasive and the phenomenal growth has sounded somewhat a death knell for the established norms and principles of law. Not only the extent of proliferation but the tremendous speed with which the Internet has enveloped the entire globe is also noticeable. It has taken almost all the human activities and services called information society. With the technological devices in the present age, there is â&#x20AC;&#x153;intrusion upon seclusionâ&#x20AC;? and privacy has lost its meaning on the web. The monetary worth of personal information is increasing day by day and it has become an important currency in the new millennium (Fatima, 2016 p. 27).

Why Cyberspace is Easy to Hack? The Internet, with all the benefits of anonymity, reliability and convenience has become an appropriate breeding place for persons interested in making use of the net for illegal gainful purposes, either monetary or otherwise. The biggest challenge to the law is to keep pace with technology (S.K Verma, 2004), Jurisdiction in a boundary less place and to prove visual evidence of virtual world. The internet matrix has disturbed the legal ambience whereas the legal provisions are chasing the cyber-criminal who is restoring to newest technological modus operandi. The technological changes have affected the most sensitive areas of the legal system, namely, jurisdiction and evidence. This is a confrontation of the visible and the invisible, the virtual and the real, as the criminal act which is being tried in the physical world was actually committed in an imaginary or in the intangible world. The intangible affects the tangible. Hence regulation of such behaviour becomes necessary. With the advent of the

A practice to create, operate and manage activism of any type through utilizing cyberspace for communicating and socializing. They are commonly known as e-activism, internet activism, and online activism. They use cyberspace as a tool to spread their ideologies or to create awareness among people for a particular cause. 31 It refers to the crimes involving any sort of electronic devices or any illegal activities done in cyberspace. Sometimes it is also called computer oriented crimes. Due absence of any boundary in the cyber world there is no limit or scope to define its jurisdiction, that is one of the reason it is very easy to misuse, and finding or collecting the evidence from virtual world is also not an easy task. Mainly cybercrime is committed in order to for wrongful gain from others by damaging, disabling, spreading malware, collect personal information and etc. Nowadays there are many cybercrimes like cyber stalking, computer extortion, computer fraud, child pornography and many more. 32 It is process of using the cyberspace to illegally breach the computer network or computer system of another, where any confidential information is stored, later use that confidential information for the ransom. It is also known as Cyber spying. Developed nations mainly use cyber espionage to keep an eye on other nations like USA, China and Russia. 33 It is the unlawful use of cyber-attacks and intimidation in cyberspace against the civilians with the purpose of causing harm and spread fear among people. They can use various means to convey their message like hacking the media, TV Broadcast, etc. 34 It is a war engaging with different technologies to attack on a nation, and the harm caused by it may be equivalent to actual war. There is no well-known definition of cyber warfare so it is difficult to define it properly, there are no physical weapons like guns and tanks are used in cyber warfare that is why many doubt its existence. Many developed countries like Russia, China and USA preparing them for the future cyber warfare.

computers networks, the world is met with neo crimes where the perpetrator works and victim is sweetly ignorant of the marauderâ&#x20AC;&#x2122;s insidious actions until the damage is done. The environment is confronted with strange crimes, unprecedented and unheard of, in the legal history of the entire world (Fatima, 2016 pp. 48-50). The two main factors that make cyberspace very simple to get hacked are, Firstly Jurisdiction and secondly lack of visual evidence, they are discussed below in detail.

Jurisdiction Not at all like conventional jurisdictional issues that may include two, three, or more clashing purviews, the arrangement of laws which could apply to a straightforward custom made website page is every one of them. Locate in the internet requires clear standards established in universal law. Just through these standards can courts in all countries be convinced to embrace uniform answers for inquiries of Internet jurisdiction. (Jurisdiction in Cyberspace: A Theory of International Spaces, 1998). The Cyberspace, being boundary less world has become a playground of perpetrators where they commit crimes and remain conspicuously absent from the site of crime. To commit such crimes, the only weapon which one need is a PC connected to the Internet. Such a PC can be an object, or means of committing crime. The internet has redefined crime. Today crimes are committed at a lightning speed (Fatima, 2016 p. 50).

5.1

Types and Theories of Jurisdiction

There are three sorts of purview by and large perceived in worldwide law. These are: (1) the jurisdiction to prescribe35; (2) the jurisdiction to enforce36; and (3) the jurisdiction to adjudicate37. In the standard request of inclination, they are: (1) Subjective Territoriality38; (2) Objective Territoriality39; (3) Nationality40; (4) Protective Principle41; (5) Passive Nationality42; (6) Universality43;(Jurisdiction in Cyberspace: A Theory of International Spaces, 1998). Various Tests for Determining the Jurisdiction in Cyberspace

It is the capability of a country to apply its law and regulations to particular people, conduct, relations or interests. It is the initial requirement, if it subsists then it is determined whether there is jurisdiction to adjudicate followed by jurisdiction to enforce. 36 It is the capability of a country to compel a person to comply with the rules and regulations by using various means like judicial action, sanctions and etc. 37 It is the capability of a country to adjudicate and decide the matters related to person or thing on which the country has jurisdiction to prescribe. 38 It means if an act or a conduct took place within the territorial boundaries of a state then it is up to that state to apply the law which governs that particular act or conduct. 39 It means that a state can also apply its law to an action which took place outside its territory but that action has a direct effect within the state. 40 According to this principle the state has power to prescribe a law for an action, based on the nationality of that person. 41This principle is applied where the state finds an action threatening which is committed in foreign state, and then the forum state takes necessary protective measures to defend its national integrity. 42 It is based on nationality of the victim, generally invoked together with active nationality because in most of the cases alone passive nationality will be enough. 43It is also known as universal interest jurisdiction; it gives power to state to prosecute the criminal for an act which is universally atrocious in nature like genocide, child pornography and etc.

In various judicial pronouncements some tests like sliding scale test, minimum contact test, effects test and forum selection test were laid down for determining the jurisdiction in cyberspace, they were in some extent able resolve disputes in cyberspace. Many courts have also used combination of these tests to make their judgments more accurate and reasonable. Sliding Scale Test. It was laid down in case of Zippo Manufacturer v. Zippo.com44, according to this test on one extreme end there are ‘passive websites’ that disseminate mainly information to internet users and would not attract exercise of personal jurisdiction. In the middle of the spectrum there are the ‘interactive websites’ where the internet users may input some information on website. In this case exercise of personal jurisdiction depends on “the level of interactivity and commercial nature of exchange of information” by means of the website. On the extreme end of the spectrum are the ‘active websites’ wherein the defendant undertakes activities over the internet and constantly interacts with the websites. In the Zippo case the court took the view that the defendant would fall in the category of ‘active websites’ and held the exercise of personal jurisdiction over defendant was fair and justified (Seth, 2016 p. 44). Minimum Contact Test This test was laid down in Washington v. International Shoe Company45. The US Supreme Court explained minimum contact test and according to them, a state can sue a non-resident origin corporation if the corporation satisfies the minimum contacts with the foreign state and principles of justice and fair play have been duly considered. ‘Minimum Contacts’ means physical contacts or presence with forum state (Seth, 2016 p. 36). Forum Selection Test. The parties to a contract are free to decide the forum where they agree to decide their disputes, this principle of autonomy of parties is a settled principle of Private International Law (Collins, 1999 pp. 1216-17). It generally happens when there is more than one court that holds jurisdiction regarding any matter, then it is up to the parties, they are free to choose any one of the forum for the settlement of dispute. Effects Test The ‘effects test’ was first advanced in Calder v. Jones46.The trouble experienced with the utilization of the Zippo sliding scale test has prepared for use of the 'effects' test. The courts have thus moved from a ‘subjective territoriality’ test to an ‘objective territoriality’ or effects test in which the forum court will exercise jurisdiction if it is shown that impacts of the respondent's site are felt in the forum state. As it were it more likely than not brought about some mischief or damage to the offended party inside the domain of the forum state. Since some impact of a site will undoubtedly be felt in a few purviews given the idea of the web, courts have received a more tightly form of the ‘effects test’, which is intentional targeting (Jurisdictional Issues In Cyberspace, 2010).

Zippo Manufacturer v Zippo.com, 952 f Supp 1119 (WD Pa 1997). Washington v. International Shoe Company, 326 US 310 (1945). 46 Calder vs. Jones, 465 US 783(1984). 45

5.2

Lack of Visual Evidence

Bulletproof evidence of cybercrime is hard to get. For instance, assume you have a precise log record that shows an interloper breaking into your framework. You can copy that log file and give it to the police, but rarely will it withstand the assault a defence attorney is likely to throw at it. Here are some example addresses a lawyer may ask in court: How would we realize the log document hasn't been altered? Who had the ability to access the log file? Is the time and date stamp accurate? How do we know? How do we know your computer system accurately detected the originating IP address, can’t IP addresses be faked? Was the log record initially written to compose once, perused just media? What has been the chain-of-care of that log document since it was first made up to this point? What experience does the PC group have with acquiring lawful proof? And so on (Grimes, 2016). Cybercrime is a complex issue. Some of the main challenges in improving the understanding of cybercrime are as follows: (1) Lack of recording mechanisms that accurately distinguish between online and offline crime; (2) Under-reporting of cybercrime, from both the public and business; and a lack of awareness that some cyber incidents are actually crimes; (3) Information from industry sources often lacks transparency and comparability; (4) Few methodologically sound surveys of victims exist (Dr. Mike McGuire, 2013). Human behavior is controlled by many constraints and law is just one of them. But as practice reveals, the regulation by the law is more challenging in cyberspace that it is in real space. The Job of law has become tougher and more adventurous than before, as now law is required to unify the two worlds, the virtual and real, which is the biggest complexity faced by the legal world. It is an open challenge to law which derives its life blood from physical proof and evidence (Fatima, 2016 pp. 49-50).

Misuse of Cyberspace by Unauthorized Organizations It is evident from the various incidents of misuse of cyberspace that generally behind the threatening activities like cyber terrorism, cyber warfare and cyber activism, there is an organization rather that individuals. They work together as a group for common cause and have same ideologies, and usually it’s very hard to track them. Two famous organizations that created a situation of chaos all over the world are discussed below.

6.1

Cicada 330147

Cicada 3301 was a progression of cryptographic riddles which began with an online post in January of 2012. The leads were renewed again in January 2013 and 2014. Solving the puzzles often required an extensive knowledge of data encryption methods, mathematics, and computer programming. Many of the clues, however, also contained elements of earlier cryptographic methods such as Caesar squares48 and Vigenère ciphers49. Most strikingly, the content

It is an International group or organisation who has distributed some set of difficult puzzles all around the world through cyberspace for recruiting certain individuals highly qualified in steganography and cryptography. After repeatedly posting few cryptic puzzles, people named them Cicada 3301. 48 It is used with Caesar box as a decrypting and encrypting tool. In this method, letters of the message are written in lines in a square, and then, read by column. 49 It is a method of encrypting alphabetic text, used with Caesar ciphers.

often contained explicit references to esotericism, Eastern philosophy, and religion, ranging from Aleister Crowley to Carl Jung. To this day no one knows who was behind this extremely intricate series of puzzles, what purpose they served, or whether they have ever been conclusively solved. Progressing from one clue to the next, what starts to emerge is a cohesive social, philosophical, and spiritual ideology (The Mystery of Cicada 3301: Constructing Gnosis in Cyberspace , 2014). The first 3301 puzzles began appearing in January 2012.They were initially posted on sites like 4Chan and Reddit and says that “We are looking for highly intelligent individuals. To discover them, we have contrived a test. There is a message covered up in this picture. Discover it, and it will lead you headed straight toward discovering us. We anticipate meeting the not many that will make it completely through. Good Luck." Once web sleuths appreciate one question they are given another puzzle (Molloy, 2016). After analysing all three puzzles it was inferred that the process of deciphering the puzzle was distributed in various steps and each puzzle follows same pattern of solving it with different texts and some minor changes in it. The steps are given below: Step 1: Decipher the post, it will lead to a photograph and find hidden message in it. Step 2: That cryptic message will have some reference of a book, decode it. Step 3: After decoding it, a URL link will appear, click on that link and some geographical location will be shown from all over the world. Step 4: Go to any of that geographical location, there will be one bar code and after scanning that bar code an audio will guide you to the next puzzle and so on. In last round only few individual were chosen who had deciphered it first, but no one has ever heard what happens after that. Similar steps were followed in second and third Puzzle appeared in 2013 and 2015 respectively. Is the Cicada 3301 mystery an elaborate prank? An alternative reality game with seemingly no purpose or payoff? Perhaps, as many in the online community believe, 3301 are in fact a government recruitment program, a crypto-anarchist group, or the spearhead of an unfolding, millennials religion for the information age. Whatever the case might be, the riddle of Cicada 3301 has unquestionably brought an exceptionally one of a kind type of involvement to numerous generally detached people far and wide. The Cicada 3301 mystery, whatever its purpose might have been, it has clearly succeeded in becoming a kind of mirror to a doorway which hints at a new process of self-reflection for the digital age. (The Mystery of Cicada 3301: Constructing Gnosis in Cyberspace , 2014). In a leaked email, 3301 described themselves as an ‘international group’ who are bound by their beliefs that “tyranny and oppression of any kind must end, that censorship is wrong, and furthermore, that protection is a natural right." The gathering urged the finalists to react with their responses to three inquiries which featured 3301's primary concerns: (1) Do you accept that each person has a privilege to protection and obscurity and is inside their privileges to utilize apparatuses which help acquire and keep up security money solid encryption namelessness programming etc.? (2) Do you believe that information should be free? (3) Do you believe that censorship harms humanity? (Fandom, 2012). Did Cicada 3301 do Anything Wrong?. Cicada 3301 incident didn’t injure anybody. But we cannot ignore the leaked email which describes the purpose of Cicada 3301’s series of cryptographic

puzzles, they definitely didnâ&#x20AC;&#x2122;t like government provisions regarding censorship, the question they asked regarding data security and right to privacy were also suspicious. Absence of victims should not be a reason to overlook the potential threat in this case. They very cleverly collected the personal information from the skilled individual in the name of solving the puzzles. There is a possibility in which there is a huge risk to the public at large and it may cause havoc if such information misused, and further it also infringes the fundamental right to privacy. They should at least legally authorize themselves or by revealing their identity give an assurance that they will not misuse the personal information that they have collected and not cause any trouble or harm regarding various government policies. Chaos Theory and Cyberspace. Chaos theory is a particular mathematical field that studies the properties of, and predictability of, deterministic systems, or systems that are dependent on a base set of initial conditions. Chaos theory may model these systems in various ways, or try to make mathematical determinations about these systems (Techopedia ). Cyberspace is a complex system and its behavior is highly responsive to the any slight changes in the virtual space, and there is no boundary as such in the cyberspace, everybody is interconnected to each other in that space and any minor alterations can give rise to colossal damage. So even very simple or small events like Cicada 3301 which didnâ&#x20AC;&#x2122;t have any effect today but later it might have a huge impact on everyone in the cyberspace just like butterfly effect50 in the chaos theory. 6.2

Anonymous (Anons)

Annonymous is an undefined gathering of PC clever individuals who some of the time progress in the direction of a typical reason as alleged hacktivists. Annonymous is certifiably not a well-characterized gathering of PC programmers. It's not a club of anti-social geeks hiding in their parents' basements or well-trained, militaristic outlaws hiding in shadowy bunkers equipped with high-speed Internet access. Anonymous is a computerized awareness, an overall hive mind, a culture, a political and social development or an online group. Anonymous is a monstrous gathering of clients of differing figuring capacities who share a ton practically speaking. Likewise with any subculture, Anonymous didn't spring forward from a solitary minute. It developed slowly over time (Chandler, 2013). They have gained notoriety by doing hundreds of hacks against wrong doer or who tried to infiltrate their system. Some of the greatest hacks against various authorities are discussed below: Cyber-attack on Scientology. Anonymous chose that the Church of Tom Cruise was a religion and was making hurt the individuals who tail it. They launched an online offensive against the church, including phone, fax and e-mail spamming, and DDoS51 attacks meant to crash the site. The programmers additionally utilized 'Google

With respect to chaos theory, by a minute or small localised change in a complex and responsive system can have a colossal effects somewhere else. Distributive Denial of Service (DDOS) is an attack in cyberspace which is done maliciously, in which the criminal intends to make a computer network or machine itself inaccessible to its users by temporarily or indefinitely disrupting the services of a host connected to cyberspace. It is frequently used by many hacker groups in attempt to overload system and interrupt any services or requests from being fulfilled.

bombing' which made the web indexes draw up the official site as the top outcome for searches like 'evil cult'. The hacking was more annoying than debilitating, but Anonymous caused enough of a stank to have the global community pay attention (Wood). Operation Orwah Hammad. On November 2014 Anonymous knocked 43 Israeli government websites offline, reported International Business Times. This was in light of the executing of 14-year-old Orwah Hammed by the Israeli Defense Forces on 24 October. In an announcement distributed to correspond with the assaults, Anonymous stated: "The world won't remain by such fierceness. Israeli Government be careful, you should have expected us" (Niekerk, 2014). Helped to Fight Tyranny in Iran. Following Mahmud Ahmadinejadâ&#x20AC;&#x2122;s controversial and disputed re-election in 2009, the Iranian government started clamping down on opposition activities online. It blocked opposition websites and media as well as disrupted mobile phone connections during the civil uprising that followed the election. The generally forced control shut out numerous Iranian natives from the open Internet, and Anonymous had to intercede. The hacking group provided muchneeded advice on how Iranian citizens could get around the online censorship and access the Internet unrestricted. Anonymous intervention played a great role in supporting Iraniansâ&#x20AC;&#x2122; right to freedom of speech during the uprising (Morris, 2018). Cyber Warfare against Hong Kong. The 'hacktivist' bunch Anonymous proclaimed war on the Hong Kong government Wednesday guaranteeing that it has hacked a few government sites The gathering sent a video to news entrance News2share which thought about the utilization of pepper shower and poisonous gas against dissenters by police in Hong Kong, to the techniques utilized by police in Ferguson, Missouri during ongoing fights there In the video, Anonymous additionally took steps to freely uncover the individual data of Hong Kong government authorities and hold onto databases and messages if specialists keep on making fierce move against dissidents, who are requesting full majority rule government for the city's 2017 political race for the post of Chief Executive. "To the Hong Kong police and any others that are called to the fights, we are watching you intently and have just started to take up arms against you in the event that you keep on manhandling, annoy or hurt protestors, we will proceed to destroy and take each online resource of your administration disconnected," the gathering stated, including: "This is The opportunity has arrived for Democracy for the natives of Hong Kong" (Shankar, 2014).

Operation Payback. In September 2010, Operation Payback was propelled, including a progression of DDoS assaults against the Indian programming firm AIPLEX, just as the RIAA52 and MPAA53, because of a hired DDoS assault against The Pirate Bay, a prevalent document sharing site. This campaign expanded to other targets, including the companies that cancelled services to the whistle-blowing

52 53

Recording Industry Association of America. Motion Pictures Association of America.

website Wikileaks, namely PayPal, Mastercard, Bank of America, and Amazon, amongst others (Niekerk, 2014). Helped in Exposing the Involvement of the Chinese Army in Cyber Attacks against the US. One of the great deeds of Anonymous is that it helped expose the involvement of the Chinese military in a string of attacks on American companies, organizations, and government agencies in 2011. American security researchers and government officials have long claimed that China was behind the 2011 cyber-attacks on the US, but there was no evidence to back up the claim. China vehemently denied the allegations due to said lack of proof. Anonymous, however, intervened and provided incriminating and convincing evidence linking the Chinese military to the attack. The revelation made headlines all over the world and allowed the Obama Administration to blame China for its malicious acts. The Chinese government was greatly humiliated, and the attacks stopped immediately (Morris, 2018). As a general rule, motive is not relevant to determine a person’s liability in the law of torts An unfair demonstration doesn't wind up legitimate just on the grounds that the thought process is great. Also, a legal demonstration doesn't end up unjust due to an awful thought process, or perniciousness (Bangia, 2017). In criminal law also the motive of the wrong doer does not have any substantive role in determining his liability. In case of Anonymous they might have done hacking with good motive but hacking itself an unlawful act where motive doesn’t have any role to play. People should understand that they were not ‘Invisible Knights’, they are mere a group of some wrong doers who wanted to influence people by spreading their utopian ideologies and messages. Vigilantism is not a solution of any problem there is proper procedure which has been established by the law and that should be followed to attain justice.

Securities of Data in Cyberspace Data and information have become most valuable assets in the world. It is one’s right to know who can access one’s data and what is happening with our information, any other person accessing one’s data without their authorization is violation of their right of privacy. From the beginning of the time of big data54, and the hazardous development of the Internet, this sort of system condition makes the security of versatile information of smart at present; individuals have major issues with the security of big data, and imagine that enormous information isn't protected. The security issues of by and by conveyed savvy terminals are likewise extremely stressing. Along these lines, the security of brilliant terminals has likewise turned into a major issue for clients. Savvy items are additionally developing from current individual shrewd terminals to brilliant homes. The client's close to home insightful terminal can control the home terminal item later. At that point, when the individual versatile terminal is controlled or lost, it will carry genuine security issues to the client's shrewd home (Big Data Security and Privacy Protection , 2018).

It is compilation of large amount of data which needs special database management systems for control and management.

We have data protection regime because of the legal and political recognition of that society respects the personal privacy and informational privacy55 of the individuals. In the context of data protection, that means respect for, control of, and security in relation to informational personal data. The DPA56 protects personal data relating to individuals, which includes employeeâ&#x20AC;&#x2122;s contractors, customers and users. It exists in order to ensure, (a) Privacy in relation to personal information; (b) The consent of individuals is obtained to collect and process personal data; (c) Security in respect for the right to privacy and personal information; (d) Protection against privacy and informational privacy abuse; (e) Protection against piracy theft and identity theft; (f) Protection against unsolicited Direct Marketing; (g) Remedies are available to individuals data subjects. The threats to personal data and information privacy have increased as the ease with which personal data can be collected and transformed electronically. This has increased further with digital technology, computer processing power and the rise of Internet 2.057 and social networking (Lambert, 2013 pp. 8-9). 7.1

Right to Privacy

Privacy is an attending of the privilege of the person to exercise authority over their character. It finds a starting point in the idea that there are sure rights which are normal to or intrinsic in a person. Natural rights are unavoidable in light of the fact that they are indistinguishable from the human character (2017 p. 18). The core of right to privacy lies in the individualsâ&#x20AC;&#x2122; ability to create a buffer between themselves and their environment. 'Privacy' is likewise an unpredictable theoretical term, wide and tricky, that relies upon culture, area and setting. It is possible to examine it from various angles and present it as defending a variety of values, but it may not be possible to define it unequivocally. A few researchers recognize a strong instinctive reason for Privacy. At the other end are researchers who attempted to organize and classify the abundance of opinions in the judicial literature regarding the essence of the concept, its various aspects and objectives. One of them organizes the areas of privacy under six subheadings: (a) the right to be alone; (b) limited access to the self; (c) secrecy; (d) control of personal information; (e) personhood; and (f) intimacy (Lederman, 2016 pp. 270-271). In India also right to privacy is a fundamental right under Article 21 of Constitution of India58. If state or any individual infringes someoneâ&#x20AC;&#x2122;s right to privacy then it is a violation of fundamental right. Under Information

It is synonymous with data privacy or data protection; it is privacy of intimate or personal data and generally relates to the personal informed kept in computer system and networks. 56 Data Protection Authorities (DPA) plays a vital role in protection of data; they are independent public authorities that observe and direct the execution through Investigative and corrective powers by application of various data protection laws. Their job is to give proper advice on data protection issues and manage the complaints lodged against violations of the General Data Protection Regulation. 57

It means the next generation or second generation of internet, where new software are developing everyday which are beyond thinking capability of any person from past. For example social networking, blogs and etc. people starts calling it internet 2.0 when it shifted from static HTML pages to a more interactive and non-stagnant internet experience. 58 Protection of life and personal liberty: No individual will be denied of his life or individual freedom aside from as per method built up by law.

Technology Act, 2000, Section 7259 deals with the Breach of Confidentiality and Privacy.

7.2

Security Measures

Data security is very important or critical for most companies and businesses. Other than formal associations, it is likewise extremely basic for home PC clients also. Data like customer subtleties, bank subtleties, account subtleties, individual documents, and so forth must be well protected for everyone on the planet because if it gets into wrong hands, it can be misused easily. Such information can be hard to replace and potentially dangerous. By verifying such information or data, one can secure the documents and abstain from confronting any challenges. (Martin, 2015). There are various measures to prevent the data from getting accessed by others without any authorization. Some of the measures are describe below: 7.3

Identify Sensitive Data

For associations, it is amazingly basic to think about where their most noteworthy data and fragile business information lies. This will guarantee you have the correct data and allot more assets to securing your most touchy and critical resources. Albeit delicate business information is just presumably around 510% of your complete business information, an information bargain including touchy or individual information could bring about a monstrous loss of reputation and revenue to a company. On the off chance that we return to get to the board and rights, we ought to put increasingly exacting measures on delicate information over different business information. (Buttler, 2017). 7.4

Duty of Data Controller

Data controller must take appropriate security measures against unauthorized access to, or unauthorized alteration, disclosure or destruction of, the data, in particular where the processing involves the transmission of over a system, and against all other unlawful types of handling. It cannot be a case that one solution, on one occasion, will be sufficient. The data controller must take appropriate technical and organisational measure against accidental loss or destruction of, or damage to personal data (Lambert, 2013 pp. 217-218). 7.5

Update Your Programs Regularly

Ensuring your PC is appropriately fixed and refreshed is an important advance towards being completely secured; there's little point in introducing this incredible programming in case you're not going to maintain it right. Your security applications are just in the same class as their latest update. Every now

Save as otherwise provided in this Act or any other law for the time being in force, if any person who, in pursuance of any of the powers conferred under this Act, rules or regulations made thereunder, has secured access to any electronic record, book, register, correspondence, information, document or other material without the consent of the person concerned discloses such electronic record, book, register, correspondence, information, document or other material to any other person shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to one lakh rupees, or with both.

and again refreshing your projects stays up with the latest on any on-going issues or openings that software engineers have fixed. (Male, 2010). 7.6

Pre-Planned Data Security Policy

When taking a gander at the tasks and procedures expected to alleviate a digital assault, a significant advance is to set up a rundown of safety efforts and information security approaches. This sort of plan by organizations could help significantly in critical situation and times of incident response. Through strategies, you can quickly respond so as to counteract extraordinary effects of a cyber-attack. Similarly as with get to the board and rights, representative access could be distinguished effectively and you would stay mindful of which clients in your association could have possibly been ruptured. It's important to remember that a policy and process plan is only as good as its last revision. Innovation, industry guideline and best practice is continually evolving. Somebody accordingly needs to possess this arrangement and procedure guide and consistently take a gander at better approaches for refreshing it to keep it applicable (Buttler, 2017). 7.7

Improve People's Awareness and Quality of Data

With the consistent progression of the huge information time, the quantity of information data has expanded fundamentally. Residents need to adjust to changes in the occasions and bit by bit increment their information proficiency and information mindfulness. Data literacy is mainly aimed at scientific researchers and civil servants. It necessitates that when they are in contact with natives' data, they can successfully deal with residents' data, and step up to the plate and accept the accountability of ensuring natives' privacy so that citizens' privacy can be effectively protected. The information mindfulness is for the most part coordinated at the overall population and expects natives to understand the significance of enormous information. Don't discretionarily distribute data concerning their very own security on the Internet, and don't coolly distribute other individuals' data so they are not abused by offenders. (Big Data Security and Privacy Protection , 2018). 7.8

Others

There are some basic measures that everyone should do to prevent their personal data and information like by creating strong passwords, setting up firewall, use antivirus for protection and avoid spam emails and messages.

Suggestions In addition with this research the author would like to put forth some suggestion regarding the present scenario of misuse of cyberspace, which are discussed belowAfter World War II Stalin told engineers to only focus on developing new things, so they can maintain the place of super powers in the world. He also told them concept like ethics and morals didnâ&#x20AC;&#x2122;t any significance for engineers. Most of the hackers in cyberspace are from Russia only; many of them did not even consider hacking as a crime because they did not have any moral basis to bind it with their profession. So ethics should be taught with almost every profession.

For protection of personal data and information first it is one’s responsibility to take reasonable steps or actions to prevent it and then one should depend on others like data controller authority and internet service provider. A person should have elemental knowledge of technology and law both. So that even if someone’s right got violated or exploited in cyberspace then they will know the remedy and take necessary steps accordingly. Government should make authorized organisations which contain individuals with highly qualified in steganography and cryptology to secure the technologies and computer system from foreign threat and prepare themselves for inevitable cyber warfare in future.

Conclusions From the above research, it can be inferred that misuse of cyberspace is increasing every day and it has been embedded with every aspect of our life and the gap between the physical world and virtual world is also decreasing. Absence of boundaries in cyberspaces and lack of visual evidences makes this place more vulnerable and easier to hack. Perpetrators can easily hide their true identities and commit crime. Unauthorized organisations like Cicada 3301 misuse the cyberspace for their ulterior purposes. They should at least legally authorize themselves or by revealing their identity gives an assurance that they will not misuse the personal information that they have collected in various stages of solving puzzles it is clearly infringement of fundamental right of privacy. Hactivists groups like Anonymous (Anons) should not be treated as ‘Invisible Knights’, they just wanted to influence people by spreading their utopian ideologies and ideas. Vigilantism is not a remedy of any problem there is proper procedure which has been established by the law and that should be followed to attain justice. It is one’s right to know what is happening with one’s personal information, and who can access it. Any other person accessing one’s data without their authorization is violation of one’s right of privacy, which is an inalienable natural right. There are various security measures given for the protection of personal data from getting misused and government should also recruit some individuals with highly qualified in steganography and cryptology to improve and secure the state’s digital security systems. Ethics has a substantial value in every profession, in a place like cyberspace ethics and moral values can decrease the rate of crimes.

References 1. Aecurtis. 2011. Cyberspace and Everyday Life . WordPress. [Online] 9 December 2011. [Cited: 26 September 2019.] https://www.timothyjwelsh.com/courses/11fa394/. 2. Bangia, Dr. R.K. 2017. Law of Torts. Faridabad : Allahabad Law Agency, 2017. 8189530917. 3. Big Data Security and Privacy Protection . Zhang, Dongpo. 2018. Zhengzhou Henan : Atlantis Press, 2018. 4. Buttler, Peter. 2017. 5 Ways to Enhance Data Security. Global Sign. [Online] Global Sign GMO International Group, 23 June 2017. [Cited: 29 September 2019.] https://www.globalsign.com/en/blog/5-ways-to-enhance-data-security/. 5. Cambridge University Press. Meaning of Cyberspace In English. Cambridge Dictionary. [Online] Cambridge University Press. [Cited: 27 August 2019.] https://dictionary.cambridge.org/dictionary/english/cyberspace. 6. Chandler, Nathan. 2013. How Anonymous Works. How Stuff Works. [Online] Infospace Holding LLC, 12 March 2013. [Cited: 30 September 2019.] https://computer.howstuffworks.com/anonymous.htm.

7. Collins, Lawrence. 1999. Dicey and Morris on the Conflict of Laws . UK : Sweet & Maxwell Ltd, 1999. 9780421661400. 8. Dr. Mike McGuire, Samantha Dowling. 2013. Cyber crime: A Review of the Evidence . s.l. : Home Office Research Report 75 , 2013. 9. Elias G. Carayannis, David F.J. Campbell. 2014. Cyber-Development, Cyber Democracy and Cyber-Defence, Challenges, Opportunities and Implications for Theory, Policy and Practice . New York, Heidelberg, Dordrecht, London : Springer, 2014. 987-1-4939-1027-4. 10. Fandom. 2012. Uncovering Sicada Wiki: The Leaked Email. Fandom. [Online] Fandom, 6 February 2012. [Cited: 30 September 2019.] https://uncovering-cicada.fandom.com/wiki/The_Leaked_Email. 11. Fatima, Dr. Talat. 2016. Cyber Crimes. Lucknow : Eastern Book Comapny, 2016. 9789351453925. 12. Grimes, Roger A. 2016. Why it's so Hard to Prosecute Cyber Criminals. CSO INDIA. [Online] CSO INDIA, 6 December 2016. [Cited: 28 September 2019.] https://www.csoonline.com/article/3147398/why-its-so-hard-to-prosecute-cybercriminals.html. 13. Jurisdiction in Cyberspace: A Theory of International Spaces. Menthe, Darrel C. 1998. 1, Michigan : Michigan Telecommunication and Technology Law Review, 1998, Vol. 4. 14. Jurisdictional Issues In Cyberspace. Muralidhar, Justice S. 2010. Bangalore : The Indian Journal of Law and Technology, 2010, Vol. 6. 15. 2017. Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors. Writ Petition (Civil) No. 494 of 2012, W.P (C) no. 494 of 2012. s.l. : Supreme Court of India, 2017. 16. Lambert, Paul. 2013. A User Guide to Data Protection . Great Britain : Bloomsbury Professional Ltd., 2013. 978-1-84766-980-3. 17. Lederman, Eli. 2016. Infocrime: Protecting Information Through Criminal Law . Cheltengam : Edward Elgar Publishing Limited, 2016. 978-1-78536-125-8. 18. Lehto, Martti. 2015. Phenomena in the Cyber World. [ed.] Pekka Neittaanmaki Martti Lehto. Cyber Security: Analytics, Technology and Automation. Cham Heidelberg : Springer, 2015, Vol. 78, p. 6. 19. Male, Bianca. 2010. 10 Essential Data-Security Measures Every Business Should Take. Business Insider. [Online] Insider, June 2010. [Cited: 29 September 2019.] https://www.businessinsider.com/10-essential-data-security-measures-every-business-should-take-2010-6?IR=T. 20. Martin. 2015. A Complete Guide to Data Security. Cleverism. [Online] Cleverism, 30 April 2015. [Cited: 30 September 2019.] https://www.cleverism.com/completeguide-data-security/. 21. Molloy, Mark. 2016. Who is behind Cicada 3301? A Brief History of the Hardest Puzzle on the Internet. The Telegraph. [Online] Telegraph Media Group Limited, 16 January 2016. [Cited: 29 September 2019.] https://www.telegraph.co.uk/technology/internet/12103306/Cicada-3301-Who-is-behind-the-hardest-puzzle-on-the-internet.html. 22. Morris, Jeffrey. 2018. Top 10 Times Anonymous Saved Humanity. LISTVERSE. [Online] LISTVERSE, 16 July 2018. [Cited: 27 September 2019.] https://listverse.com/2017/08/29/top-10-times-anonymous-saved-humanity/. 23. Niekerk, Heine Van. 2014. 10 of the Most Notorious Anonymous Acts. isBuzznews. [Online] isBuzznews, 15 December 2014. [Cited: 27 September 2019.] https://www.informationsecuritybuzz.com/news/10-notorious-anonymous-acts/. 24. Rouse, Margaret. 2016. Chaos theory. Whatis.com. [Online] tech target, may 2016. [Cited: 30 September 2019.] https://whatis.techtarget.com/definition/chaos-theory. 25. S.K Verma, Raman Mittal. 2004. Legal Dimensions of Cyberspace. New Delhi : Indian Institute of Law, 2004. 26. Seth, Karnika. 2016. Computers, Internet And New Technology Laws-A Comprehensive Reference Work With Special Focus On Developments In India. s.l. : LexisNexis, 2016. 9789350357514. 27. Shankar, Sneha. 2014. Anonymous Declares War On Hong Kong Government By Hacking Websites. International Business Times . [Online] International Business Times , 10 February 2014. [Cited: 27 September 2019.]

28.

29. 30. 31.

https://www.ibtimes.com/anonymous-declares-war-hong-kong-government-hacking-websites-1698235. Stefano Baldi, Eduardo Gelbstein, Jovan Kurbalija. 2003. Hacktivism, Cyber-terrorism and Cyberwar: The Activities of the Uncivil Society in Cyberspace. Switzerland : DiploFoundation, 2003. 99932-53-01-4. Techopedia . Chaos Theory. Techopedia . [Online] Techopedia Inc. [Cited: 30 September 2019.] https://www.techopedia.com/definition/18259/chaos-theory. The Mystery of Cicada 3301: Constructing Gnosis in Cyberspace . Andjelkovic, Filip. 2014. Toronto : University of Toronto , 2014. Wood, Greg. Anonymous Most Memorable Hacks. CBS NEWS. [Online] CBS NEWS. [Cited: 27 September 2019.] https://www.cbsnews.com/pictures/anonymousmost-memorable-hacks/14/.

Commercialization of Space and the Need for Regulation of Actors in Outer Space Keertana Venkatesh Gujarat National Law University, Gandhinagar, India keertanavenkatesh01@gmail.com

Abstract. The race to space began with the launch of Sputnik I by Russia in late 1957. Initially, all space activities were State-intensive and acted as indicators of scientific, technological and economic superiority. More than fifty years ago, when the international space law treaties were conceptualized, the drafters did not envisage the extensive privatization of outer space, considering the sheer resources that would be required for these kinds of activities. However, space projects in the last decade have proven that space exploration is no longer limited to governmental agencies of richer countries. Private companies and organizations such as MarsOne, SpaceX and Team Indus, amongst many others, are eyeing the relatively unexplored avenue of space as the new frontier for commercialization. The international space law framework gives States the freedom to use and explore outer space, the res communis nature prevents them from appropriating any part of outer space and exercise their exclusive sovereignty. The extension of these principles to private space actors continues to be a question that plagues the international community. With the increasing number of such actors and the consequent rapid commercialization in outer space, there is a need to reexamine the legal framework. This paper will examine the legitimacy of the commercial activities in outer space â&#x20AC;&#x201C; by States and private actors. With the increasing activity in outer space â&#x20AC;&#x201C; from mining for resources and ideas of terraforming to space tourism and selling portions of celestial bodies â&#x20AC;&#x201C; it is clear that the need to formulate a consolidated regulatory framework is of utmost importance. Keywords: Space Commercialization, Outer Space, Transnational Law.

Introduction

During the Cold war era, the launching of Sputnik I marked the beginning of the space race between the USA and Soviet Union. What came in response was the development of treaty law governing outer space. Currently, the activities of States in outer space are governed by five international treaties and five sets of principles, as noted by the United Nations Committee on the Peaceful Uses of Outer Space. (United Nations Office for Outer Space Affairs) These include: arms control, non-appropriation of outer space, liability for damage caused to space objects and the freedom of exploration and use, amongst others. The drafting history of the Outer Space Treaty, 1967 exemplifies the emphasis given by all States to promote the exploration and use of outer space in a manner that it would promote scientific development of the world community as a whole. At that juncture, it was difficult to imagine that private actors would be involved in outer space activities. The sheer magnitude of resources, both economic and technological, required for space dominance was envisaged to be only in the

domain of nation States. Purely commercial activities by private establishments was not seen as an issue that would necessarily affect the outer space realm. The rise of private sectorâ&#x20AC;&#x2122;s involvement is space can be traced back to the 1990s â&#x20AC;&#x201C; owing to technological maturity, significant benefits and decreasing costs along with the governmental need to reduce space expenditures. (Stolis) Particularly, the last decade has witnessed tremendous growth in private commercial activities in outer space and increasing interest in the exploration of outer space. Companies such as Planetary Resources, Inc. (formerly Arkyd Astronautics) (2009) and Bradford Space Inc. (formerly Deep Space Industries) () have invested enormously in developing technology to facilitate mining of space resources. Private players such as SpaceX () have been increasingly working towards commercializing outer space by promoting space tourism and deep-space missions. Examination of commercial activities in outer space can no longer be viewed in a narrow sense as consisting of only State actors. In fact, with the advent of such important private actors in the arena of outer space, States are constantly being challenged due to the lacunae in the regulatory and policy frameworks. In this light, this paper will examine the commercial activities of State and non-State actors in outer space and subsequently deal with the existing framework in international space law governing such players. The paper will then explore space mining, space tourism and terraforming and analyze the complex issue posed by these commercial activities. Highlighting the insufficiencies in the existing framework, the paper will propose certain recommendations on the law and policy fronts.

Setting the context: What is commercialization of outer space?

Commercialization is used loosely to denote the activities in exploiting nonrenewable celestial resources for experimentation, research and eventual commercial enterprise. (Proposed Regime and its Ramifications on the Commercialization of Outer Space, 1991) As elucidated, this encompasses a wide range of activities, some of the popular ones being mining of celestial resources, conducting scientific experiments, terraforming and space tourism. Now that the spectrum of actors has to be extended to private agencies, regulation of commercialization becomes pertinent. Authors believe that the private sectorâ&#x20AC;&#x2122;s future investment in outer space will depend on the outcome of the conceptual legal battle concerning the space law treaties and the eventual structuring of outer space regulation. (Proposed Regime and its Ramifications on the Commercialization of Outer Space, 1991) The regime under international law and international space law, while recognizing private actors as space actors, do not afford the same legal standing to them. It is only a State that can be made responsible and liable for outer space activities.

Legal Framework under the international space law regime

The most widely accepted treaty governing outer space, the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies of 1967, popularly referred to as the Outer Space Treaty, sets forth under Article I, the freedom to all States to explore and use outer space. However, such use does not extend to the appropriation of outer space. This restriction is found under Article II of the Treaty. In addition, the Moon Treaty lays down several additional requirements that would

govern any form of private commercial activity in outer space. The framework under the space law treaties permit private activities in outer space. However, the nature of the activity would determine the rights and extent of limitations on the particular space venture. The res communis60 nature of outer space is comparable to that of Antarctica. If we look at Antarctica’s example, several countries have started to realize the potential of the Antarctic region in both future resources and also as a strategic military stronghold. (Legal Aspects of Mineral Exploitation in Antarctica, 1986) Consequently, there have been increasing demands of universal participatory rights in governing Antarctica.

Space mining

The freedom to use outer space is believed to include the commercial use of outer space, provided it complies with the principle of non-appropriation. (Tronchetti, 2009) This means that the only prohibition imposed by international space law is on the claims of sovereignty over parts of celestial bodies. There has been much debate as to whether this means that appropriation of resources of the moon or other planets is in fact permissible under the space law treaties. One school of thought contends that space mining is illegitimate. The basis of this argument lies in the fact that the term “outer space”, which is a generic term, includes all of its constituent elements. (2009) This means, therefore, that the natural resources occurring on celestial bodies are covered within the ambit of the non-appropriation principle. (The Non-Appropriation Principle: The Grundnorm of International Space Law , 2014) Certain scholars import the logic adopted in claims of ownership in the high seas to outer space and contend that outer space mining is legitimate. (The NonAppropriation Principle: The Grundnorm of International Space Law, 2014) Customary international law pertaining to the high seas allowed States to claim ownership over fish that is caught in the high seas. (10 December 1982) Even if we look at projects undertaken by countries in the past, agencies such as NASA and JAXA (Japan Aerospace Exploration Agency) (Rajagopalan, 2019) have led the way for resource mining and associated exploration activities. State practice seems to favour the contention that space mining is permissible under international law. But this raises several other questions pertaining to the extent of mining and regulation that States exercise over private actors who seek to undertake such activities in outer space.

Space Tourism

The descriptive use of space travel in fiction has fascinated generations of readers. Much like the other developments in outer space in recent years, space tourism was restricted to imagination and materialization of this idea could not be envisaged. The Russian Space Agency was the first to take private persons to the International Space Station, in 2001. (Sgrosso, 2011) (E, 2011) Since then, several private companies have expanded their services to providing space tours. Space tourism is used to describe commercial activities that offer customers direct or indirect experience with space travel. (Hobe, 2004) Often viewed as a recreational activity for private persons, space tourism is now being increasingly

Res communis omnium or res communis refers to a thing that belongs to the “entire community”.

contextualized as a commercial activity that would foster economic and scientific growth. However, this raises many important questions in space law – Whether “space tourists” qualify as astronauts? This is pertinent to determine the application of the Astronauts’ Return and Rescue Agreement. (1967) The literal definition of astronauts as envoys of mankind in international law (and most probably the intended definition by those formulating and negotiating the Outer Space Treaty text) would likely categorize them in some fashion as public ministers of the second class, i.e., “ranking next after an ambassador”. (Space Law: Addressing the Legal Status of Evolving Envoys of Mankind, 2011) In this context, envoys would be "either ordinary or extraordinary; by custom the latter is held in greater consideration". So, in traditional international law by which the Outer Space Treaty and dependent space-related treaties were negotiated, astronauts would have been deemed to be held to the standards associated with a minister extraordinaire;61 in other words, a special representative of a government. In the sense of such a definition, it is impossible to regard space tourists as astronauts. Even conceptually speaking, an astronaut is one who is a trained specialist on a space mission. As opposed to a tourist, an astronaut is contributing to the interest of mankind. (A legal regime for space tourism: Creating legal certainty in outer space, 2009) (Space tourism: A synopsis on its legal challenges, 2012)

Terraforming – Is it too good to be true?

The Outer Space Treaty imposes a duty on States not to undertake any activity that would exclude a State from exercising its freedoms. (Lee, 2012) This is further supported by the text of the Moon Treaty, which states that – “States, in their exploration and use of celestial bodies, are required to take measures to prevent the disruption of the existing balance of their environment.” (1971) Terraforming, as the word suggests, refers to deliberately modifying a planet to make it similar to Earth. Essentially, what terraforming seeks to do is radically alter the environmental conditions of a planet. Research suggests that with the existing technologies, terraforming is still far away. (Inventory of CO2 available for terraforming Mars, 2018) Despite this, several ambitious projects seek to revolutionize the outer space scientific studies by proposing their own models for terraforming. (Davis, 2019) (Choi, 2019) (Scharping, 2016) From a legal viewpoint, terraforming apparently seems to be inconsistent with the international space law framework. In the past, the NASA has undertaken activities which have created environmental disruptions. One such experiment aimed at ascertaining the availability of water deposits on the Moon and involved the deliberate crashing of a space object into the South Pole of the Moon. (Fly Me to the Moon: How Will International Law Cope With Commercial Space Tourism?, 2010) The effects of such change were considered to be permanent and irreversible. The preservation of the environment of celestial bodies has been categorized as an important element of the principle of ‘common heritage of mankind’. (Freeland, 2013) (30th Anniversary of the Moon Agreement: Retrospects and

Envoy is defined in the Webster’s Dictionary as “a minister plenipotentiary accredited to a foreign government who ranks between an ambassador and a minister resident - called also envoy extraordinary... a person delegated to represent one government in dealings with another”. 61

Prospects: the Negotiation of the Moon Agreement, 2009) When applied to the environment, the COHM principle requires the maintenance of intergenerational equity, i.e., the preservation of the environment for the use of future generations. (Jakhu, 2013) • Non-contamination policies have been accepted universally. These include COSPAR’s Planetary Protection policy (COSPAR, 2002) and Planetary Quarantine Policy. (National Research Council, 1972) Further, NASA adopts stringent standards for space objects that will make contact with the surface of Mars, (Office of Planetary Protection, Mission Requirements, NASA) thereby protecting its environment. Similar policies have been adopted by the European Space Agency (ESA) (Kminek, 2006) Japan Aerospace Exploration Agency (JAXA) (JAXA) and Canadian Space Agency (CSA) (Canadian Space Agency, 2011). • Principle 21 of the Declaration of the United Nations Conference on Human Environment and Principle 2 of the 1992 Rio Declaration (12 August 1992) establish that States have the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment beyond their national jurisdiction. The stance adopted by the International Court of Justice reaffirms this obligation. (8 July 1996) (Introduction, 1997) (1997) This principle has acquired the status of a norm of general international law. (Marchiso, 2013) This obligation extends to outer space since it is included with areas considered to be beyond national jurisdiction.

Space Debris – An international concern

Commercial activities on Earth have often resulted in disastrous environmental impacts. Environmental pollution, in various forms, continues to persist as a global problem. In the context of outer space, one of the main concerns that all countries had was that activities in space could disrupt the environment of outer space – an unexplored arena. While the potential for activities in outer space, particularly of commercial nature, is enormous, this could be detrimental to the preservation of the outer space environment. Afterall, every space object will one day become space debris or burn up in the Earth’s atmosphere. Under the space law regime, causing harmful interference to the stations of other States is an abuse of rights, which violates the principle of good neighbourliness. (W., 2015) Every form of space activity, particularly commercial ones, would necessarily affect the composition of the space and interfere with activities of other States. Moreover, several States seek to carry out their own scientific studies in outer space. The integrity of scientific studies is directly impacted by any change in the status quo of the surrounding environment. (Larsen, 2017) States have an obligation to avoid causing any contamination which would interfere with another State’s activity, as all States have an interest in protecting their ongoing space activities. (International Law and Policy of Extraterrestrial Planetary Protection, 1993) Activities that cause ecological effects which impair the interests of a State contravene the freedom of scientific investigation. (The Outer Space Environment and its Legal Protection, 1989) In this light, States are bound to regulate all forms of commercial activities in order to ensure that they respect their obligations under international law.

Issues of Liability and Responsibility in Space Law

8.1

Responsibility: The problem of attribution

A breach of any obligation under international law when attributable to a State attracts State responsibility. (2001) State responsibility is dealt with under Article VI of the Outer Space Treaty. Responsibility is borne to the appropriate State. (Gerhard, 2013) According to this provision, an activity in outer space is considered to be a “national activity” even if it undertaken by a private agency, or different agencies of two or more countries. As a result, two or more States might be internationally responsible under the Treaty for violating an international obligation. A State is internationally responsible for the activities of non-governmental entities authorized by it. (27 January 1967) Within the existing framework, therefore, private agencies are not afforded the recognition equivalent to States and cannot be made responsible. This means that in the event of any breach owing to private activities will be attributable to the State, as it has authorised such activities. Such State will be made responsible in accordance with the provision, even if there is no direct State involvement. In the public international law framework, this position is slightly different. Unless specific State involvement is traced, State responsibility is not attracted. (2001) To a great extent therefore, the problem of attribution in the space law regime is not as complicated as the one in public international law. However, since it is possible that the private company or agency of the space object might be a national of the same State, it becomes imperative for countries to develop their domestic laws to penalize such persons. If not, then such actions would go punished, despite being in contravention of international law. 8.2

Liability: Issues pertaining to space object and Launching State

The Convention on International Liability for Damage Caused by Space Objects (“Liability Convention”) of 1972 emerged as States recognized that space activities, being ultra-hazardous in nature, could pose an imminent threat to society in the event of space-related activities. (Smith, 2013) The Liability Convention can be considered as an extension of the principle of liability laid down in Article VII of the Outer Space Treaty. While Article II of the Liability Convention addresses damage caused to a space object on the surface of Earth or in flight, (1972) Article III applies to damage that is caused to a space object elsewhere other than the surface of Earth. (1972) The definitional problem surrounding “space object”. The Liability Convention envisages only those situations in which damage is caused by a space object. At the time of drafting the Convention, the formulation underlines that the damage must be caused by the space object itself and not by the product or application emanating from its operation. (Smith, 2013) This becomes a problematic position in the context of terraforming, for instance, wherein damage may not be caused by a space object itself, but as a result of it activities and disruption caused to the celestial environment. Currently, the definition accorded to “space object” within the space law treaties does not leave room for damage resulting from a non-material origin in outer space. (Smith, 2013) From a literal perspective, therefore, any actor undertaking

a terraforming could not be held â&#x20AC;&#x153;liableâ&#x20AC;?, despite the fact that it may have resulted in damage being caused to another space object. Addressing the Launching State dilemma. The definition of a Launching State within the Convention reverts to the four criteria contained in Article VII of the Outer Space Treaty, 1967 and Article I of the Liability Convention. (1967) (1972) The concept of the Launching State was seen at all times as the key to imposing liability on the State that benefitted from the launch undertaking. (Smith, 2013) In the context of commercial activities, it is a common practice for several countries to collaborate with each other for space activities. In such cases, all the concerned States derive some form of benefit from their joint space activity. However, owing to the strict definition under the Convention, it is only the State from which the space objects launched that becomes liable for damage caused as a result of their joint activity. In such cases, in the absence of an agreement between the concerned States with respect to sharing of liability or of indemnity in case of compensation paid by one State, the other States can go scot free, with absolutely no repercussion under the international framework.

Recommendations

1. Development of an international framework to exclusively govern commercial activities in outer space. The development of an international law instrument is a time-consuming process, involving series of deliberations and weighing in of various stakeholders. In the context of space, since there are already five established space law treaties with fundamental governing principles, it would not be that difficult a task to adopt an instrument which would particularly deal with commercial activities. It is also possible that the United Nations Office for Outer Space Affairs (UNOOSA) drafts a model space legislation which could be adopted uniformly by all States. For instance, the United Nations Commission on International Trade Law (UNCITRAL) has introduced Model Law frameworks to deal with crossborder insolvency and international commercial arbitration. Since one of the founding principles of space law is that of cooperation and benefit to the entire world community, these instruments serve as good examples of steps taken on the international level. 2. Robust domestic legislations with provisions pertaining to attribution, liability, etc. While the adoption an entirely new framework to govern commercial activities would take some time, a short-term effective solution to address the grey areas and lacunae in the law would be to create robust domestic legislations that encompass all forms of commercial activities and govern the actors, irrespective of their origin. In the absence of a Model Law currently, States can craft domestic legislations to suit their interest, while also keeping in mind their obligations under the space law treaties. In the wake of increasing activity, accidents and environmental effects are also on the rise. In order to regulate these aspects of outer space, it is imperative for countries to enact domestic legislations that would effectively identify such space actors and penalize them accordingly. In order to tackle the international law issues, domestic legislations must incorporate appropriate provisions wherein a

private agency would be liable to indemnify the government in case the State has been made liable for an activity of the private agency. 3. Adoption of flexible definitions in line with the object of the space law treaties There is a need to relax the rigid approach taken by States and scholars while understanding the meaning of space objects. For instance, if space debris were excluded from the purview of the term ‘space object’, the scope of the treaties would cover barely 3,428 active payloads currently in orbit. (Satellite Box Score, 2011) In this context, it is necessary to give the term ‘space objects’ a broad interpretation under the regime of the Liability Convention, to include within its purview ‘space debris’ as well. (Legal Issues Relating To Unauthorized Space Debris Remediation, 2014) (State Liability for Outer Space Activities in Accordance with the 1972 Convention on International Liability for Damage Caused by Space Activities , 1992) (Managing Tort Liability Risks in the Era of the Space Shuttle, 1979) 4. Obligations must be imposed on all space actors, irrespective of their nature The international space law framework currently imposes several obligations upon State actors while undertaking any form of activity in outer space. For instance, under the Outer Space Treaty, States owe an obligation to consult when they have a reason to believe that their activities may harmfully interfere with the activity of another State. (1967) (Marchiso, 2013) Such obligations, of rather general nature, must be imposed on private actors as well. This would increase accountability for private commercial activities.

Conclusion

No longer are our lives on Earth entirely independent of activities in space. While the international community is increasingly moving towards establishing an international legal order on Earth to regulate commercial activities, the same must be imported to the frontier of space. The current international space law framework is not equipped to deal with the various complex issues that commercialization poses. The absence of a consolidated guideline to govern commercial activities continues to threaten the preservation of outer space and its resources. MA Xinmin, Chinese Deputy Director-General, had remarked: “Space activities with unilateral interests for one’s own technical and economic advantages, without due regard to the interests of other States, are an abuse of rights and contrary to the spirit of space law.” (MA Xinmin, 17 November 2014) At the very heart of the space law framework are principles of cooperation and mutual benefit. While commercialization of outer space has broadened the horizons for scientific development, it continues to be a serious impediment to the realization of the goals that countries sought to achieve while drafting the space law treaties. The way ahead requires the world community to strike a fine balance between commercial activities and preservation of outer space as well as its governing principles.

References 1. 27 January 1967. Article VI, Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies. 27 January 1967. 18 U.S.T. 2410, 610 U.N.T.S. 205.

2. 30th Anniversary of the Moon Agreement: Retrospects and Prospects: the Negotiation of the Moon Agreement. Tuerk, Helmut. 2009. 2009, International Institute of Space Law Proceedings, Vol. 52, pp. 491, 499. 3. A legal regime for space tourism: Creating legal certainty in outer space. Z, Yun. 2009. 2009, Journal of Air Law and Commerce , pp. 959-982. 4. 1967. Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space. 1967. 5. 2009. ARKYD Astronautics Founded. Planetary Resources. [Online] January 1, 2009. [Cited: September 28, 2019.] https://www.planetaryresources.com/2009/01/draft-arkyd-astronautics-founded/. 6. 2001. Article 2, Articles on Responsibility of States for Internationally Wrongful Acts. 2001. A/RES/56/83. 7. 1971. Article 7, Agreement Governing the Activities of States on the Moon and Other Celestial Bodies. 1971. 8. 10 December 1982. Article 87, United Nations Convention on Law of the Sea. United Nations. 10 December 1982. 1833 U.N.T.S. 3. 9. 1972. Article I, Convention on International Liability for Damage Caused by Space Objects. 1972. 10. 1972. Article II, Convention on the Liability for Damage Caused by Space Objects. March 29, 1972. 961 U.N.T.S. 187 . 11. 1972. Article III, Convention on the Liability for Damage Caused by Space Objects. March 29, 1972. 961 U.N.T.S. 187 . 12. 1967. Article IX, Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies. 1967. 13. 1967. Article VII, Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies. 1967. 14. 2001. Articles on Responsibility of States for Internationally Wrongful Acts . 2001. A/RES/56/83. 15. Bradford Space Inc. Bradford. [Online] [Cited: September 29, 2019.] http://bradfordspace.com/. 16. Canadian Space Agency. 2011. Report to the 38th COSPAR Meeting (Bremen, Germany): Space Science Research in Canada, CSA . 2011. 17. Choi, Charles. 2019. Using "frozen smoke" to build terraforming domes on Mars. July 16, 2019. 18. COSPAR. 2002. Planetary Protection Policy. October 20, 2002. 19. Davis, Matt. 2019. Top 4 candidates in our solar system for terraforming. November 7, 2019. 20. 2009. Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicar.), Judgment. 2009 I.C.J. Rep. 213, s.l. : International Court of Justice , July 13, 2009. 21. E, Walter. 2011. The Privatisation and Commercialisation of Outer Space. [book auth.] BrĂźnner C & Soucek A (eds). Outer Space in Society, Politics and Law. s.l. : Springer-Verlag Vienna , 2011, pp. 493-518. 22. Fly Me to the Moon: How Will International Law Cope With Commercial Space Tourism? Freeland, Steven. 2010. 1, 2010, Melbourne Journal of International Law, Vol. 11, p. 90. 23. Freeland, Steven. 2013. Article 7. [book auth.] Stephen Hobe (eds). Cologne Commentary on Outer Space. 2013, p. 373. 24. 1997. GabÄ?ikovo-Nagymaros Project, Hungary v Slovakia, Judgment, Merits. 1997 I.C.J. Rep. 7, s.l. : International Court of Justice, 1997. 25. Gerhard, Michael. 2013. Article VI. [book auth.] Stephen Hobe et al. (eds). Cologne Commentary on Space Law. 2013, Vol. 1, p. 104. 26. Hobe, Cloppenburg and. 2004. Proceedings of the International Institute of Space Law. 2004. p. 377. 27. International Law and Policy of Extraterrestrial Planetary Protection. Cypser, Darlene. 1993. s.l. : Jurimetrics Journal, 1993, Vol. 33, pp. 315, 325 . 28. Introduction. Hey, Jutta Brunee & Ellen. 1997. 1997, Yearbook of International Environmental Law, Vol. 8, pp. 3-5.

29. Inventory of CO2 available for terraforming Mars. Edwards, Bruce M. Jakosky & Christopher S. 2018. 2018, Nature Astronomy , Vol. 2, pp. 634–639. 30. Jakhu, Ram. 2013. Article 11. [book auth.] Stephan Hobe et al. (eds). Cologne Commentary on Space Law. 2013, p. 394. 31. JAXA. Cosmos: ISAS, Planetary Protection and Our Search for Life, JAXA. 32. Kminek, Gerhard. 2006. Mars Sample Return: Planetary Protection Specification for Phase A2 System Study. s.l. : European Space Agency, 2006. 33. Larsen, Francis Lyall and Paul B. 2017. Space Law: A Treatise. s.l. : Routledge Press, 2017. 34. Lee, Ricky J. 2012. Law and Regulation of Commercial Mining of Minerals in Outer Space. s.l. : Springer, 2012. p. 164 . 35. Legal Aspects of Mineral Exploitation in Antarctica. Francioni. 1986. 1986, Cornell International Law Journal, Vol. 19, pp. 163, 164. 36. Legal Issues Relating To Unauthorized Space Debris Remediation. Chatterjee, Joyeeta. 2014. s.l. : IAC, 2014, IAC-14-E7.1.4.x21316. 37. 8 July 1996. Legality of the Threat of Use of Nuclear Weapons, Advisory Opinion. 1996 I.C.J. Rep. 226, s.l. : International Court of Justice, 8 July 1996. 38. MA Xinmin, Deputy Director-General, Department of Treaty and Law, Ministry of Foreign Affairs, The People’s Republic of China. 17 November 2014. The Development of Space Law: Framework, Objectives and Orientations, Speech at United Nations/China/APSCO Workshop on Space Law. 17 November 2014. 39. Managing Tort Liability Risks in the Era of the Space Shuttle. Mossinghoff, G.J. 1979. 1979, Journal of Space Law, pp. 121, 127-128. 40. Marchiso, Sergio. 2013. Article IX . [book auth.] Stephen Hobe et al. (eds). Cologne Commentary on Space Law. 2013. 41. National Research Council. 1972. Report of the Space Science Board ad hoc Committee for Review of Planetary Quarantine Policy. 1972. 42. Office of Planetary Protection, Mission Requirements, NASA. 43. 12 August 1992. Principle 2, G.A. Res. A/CONF.151/26, Rio Declaration on Environment and Development. 12 August 1992. Vol. I. 44. Proposed Regime and its Ramifications on the Commercialization of Outer Space. Pontious, Andrew H. 1991. 1991, Santa Clara Computer & High Technology Law Journal, Vol. 7, pp. 157, 158. 45. Rajagopalan, Senjuti Mallick & Rajeswari Pillai. 2019. If space is ‘the province of mankind’, who owns its resources? s.l. : Observer Research Foundation, January 24, 2019. 46. Satellite Box Score. National Aeronautics and Space Administration (NASA). 2011. October 2011, Orbital Debris Quarterly, p. 10. 47. Scharping, Nathaniel. 2016. These Experiments Are Building the Case to Terraform Mars. June 14, 2016. 48. Sgrosso, Catalano. 2011. International Space Law. s.l. : Le Gisma Editore, 2011. pp. 266-267. 49. Smith, Armel Kerrest & Lesley Jane. 2013. Article I. [book auth.] Stephen Hobe et al. (eds). Cologne Commentary on Space Law. 2013, Vol. 2, p. 111. 50. —. 2013. Article II. [book auth.] Stephan Hobe et al. (eds). Cologne Commentary on Space Law. 2013, p. 129. 51. —. 2013. Historical Background and Context. [book auth.] Stephen Hobe et al. (eds). Cologne Commentary on Space Law. 2013, Vol. 2, p. 94. 52. Smith, Kerrest &. 2013. Article I. [book auth.] Stephen Hobe et al. (eds). Cologne Commentary on Space Law. 2013, p. 114. 53. Space Law: Addressing the Legal Status of Evolving Envoys of Mankind. Robinson, George S. 2011. 2011, Annals Air & Space Law, Vol. 36, p. 447. 54. Space tourism: A synopsis on its legal challenges. YA, Failat. 2012. 2012, Irish Law Journal, pp. 120-151. 55. SpaceX. SpaceX. [Online] [Cited: September 29, 2019.] https://www.spacex.com/. 56. State Liability for Outer Space Activities in Accordance with the 1972 Convention on International Liability for Damage Caused by Space Activities . Hurwitz, Bruce A. 1992. 1992.

57. Stolis, Dr. Dionysia-Theodora Avgerinopoulou & Katerina. European Space Sciences Committee. [Online] [Cited: October 1, 2019.] http://www.essc.esf.org/fileadmin/user_upload/essc/Article_Current_Trends_and_Challenges_in_Space_Law.pdf. 58. The Non-Appropriation Principle: The Grundnorm of International Space Law . Paliouras, vZachos. 2014. 2014, Leiden Journal of International Law, Vol. 27, pp. 37, 46. 59. The Non-Appropriation Principle: The Grundnorm of International Space Law. Paliouras, Zachos. 2014. 2014, Leiden Journal of International Law, Vol. 27, pp. 37, 47. 60. The Outer Space Environment and its Legal Protection. Konstantinov, Emil. 1989. 1989, International Institute of Space Law Proceedings , Vol. 32, pp. 100, 101 . 61. Tronchetti, Fabio. 2009. The Exploitation Of Natural Resources On The Moon And Other Celestial Bodies. 2009. p. 56. 62. United Nations Office for Outer Space Affairs. UNOOSA. Space Law Treaties and Principles. [Online] [Cited: September 29, 2019.] https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties.html. 63. W., Xianshu. 2015. Legal Regime of Radio Frequency Interference. [book auth.] Rongier I. (eds) Sgobba T. Space Safety is No Accident. s.l. : Springer, 2015.

Natural Resource Justice: Distributive or Rightsbased Approach? Dr Petra Gumplova Max Weber Kolleg, University of Erfurt, Erfurt, Germany petra.guemplova@uni-erfurt.de

Abstract. This paper critically overviews the most influential philosophical conceptions of natural resource justice, focusing on three areas – the methodology of normative theorizing about natural resource justice, the category of natural resources, and the relation of a proposed conception to an existing and dominant system of sovereign territorial rights to natural resources. The critical assessment of the available philosophical approaches in these three respects is guided by the aim to assess the ability of these conceptions to reflect on what is wrong with current social reality of natural resource use and provide guidance for a feasible reform or social transformation. To highlight the shortcomings of the philosophical conceptions of natural resource justice, I will contrast the dominant global distribution approach with an emerging rights-based approach which has recently started gaining traction in the debate about natural resources. Keywords: Self-Determination, Sovereignty Over Natural Resources, Human Rights Justice.

Introduction

In contrast to a broad category of nature which has been in the center of the philosophical inquiry since the classical age, natural resources are to be understood in a more specific sense as naturally occurring materials which are used for the satisfaction of various morally significant human needs – basic needs of survival, economic and material needs, or cultural interests which recognize symbolic or spiritual values of natural resources. Water, air, soil, forests, flora and fauna, oil, gas, minerals, and gemstones count as the most prominent examples. Defined in relation to human use, natural resources have other important features – they are scarce, depletable, and unevenly distributed on Earth. Turning original natural resources into valuable goods also requires human activity which gives rise to legitimate ownership claims and distributive entitlements on the one hand and creates potentially burdensome externalities. Due to all these features, natural resources are subject to various and often conflicting claims by groups or individuals – ownership rights, access and use claims, attempts at exclusive control, distributive demands. Natural resources, in other words, raise fundamental questions of justice and, perhaps more precisely, injustice. In fact, for much of modern history, the use of natural resources has been fraught with violence, political oppression, exclusion, and highly inequitable distribution of benefits and burdens arising from the resource extraction and their use. Many of these injustices persist until today. Conflicts over precious materials are as intense as ever and highly valuable natural resources continue to play an undiminished role in the suffering of millions of people worldwide (Klare 2002, Wenar 2016). Just as the phenomenon of the resource curse persists, so does the practice of the extraction of resources which causes environmental and social harms and fails to distribute the benefits and burdens arising from the extraction

equitably. We are failing to stop the destructive overexploitation of global commons, e.g. to reduce emissions of greenhouse gases into the atmosphere. In recent years, a new wave of global resource grabs in developing countries and in international resource domains represent anything but contributions to a fairer and a more sustainable use of natural resources. While natural resources continue to cause conflict and harm, vital resources crucial for human survival (air, water, soil, forest ecosystems) are depleted at a dangerous pace (Klare 2012). Given the importance of natural resources for human life and the continuous injustice resulting from the human use of nature, it is striking that philosophy and critical social and political theory have for so long neglected the topic of natural resources. Having recently discovered natural resources as an important subset of distributive goods, philosophy offered a few accounts of natural resources from the perspective of justice. In this debate – currently the place where natural resources are being addressed most systematically from the moral perspective of justice – the emphasis is continuously being put on global distribution and redistribution of natural resources or their values. Global redistribution is seen as a prominent solution to what is perceived as the most urgent problem with natural resources – global inequality. This article critically overviews the most influential philosophical conceptions of natural resource justice, focusing on three specific aspects – the methodology of normative theorizing through which a conception of natural resource justice is developed, the very category of natural resources, and the relation of a proposed (distributive) scheme to an existing system of sovereign territorial rights to natural resources. The critical assessment in these three areas reflects the aim to assess the ability of these conceptions to identify what is wrong with current social reality of natural resource use and provide guidance for a feasible reform or social transformation. To highlight the shortcomings, I will contrast the dominant global distribution approach with an emerging rights-based approach which has most recently started gaining traction in the broader debate about natural resources.

Natural Resources and Impracticable Moral Rights

A common feature of the philosophical conceptions of natural resource justice is that they are concerned preeminently with outlining and defending universal moral rights or general distributive principles with respect to natural resources. After a normative conception of natural resource justice is developed, consequences for the practice implicated in it are explored or a critical appraisal of existing institutions is offered. In the debate about natural resources and justice, these methodological terms were set by Charles Beitz (1979) who introduced the topic of natural resources into political theory and the philosophy of justice. Beitz’s point of departure was the critique of Rawls’s failure to include principles of international distributive justice into a hypothetical social contract. According to Beitz, natural resources are a distinct global distributive good, so important as to breach Rawl’s insistence that principles of distributive justice only apply in intra-state context, not between states. The distributive importance of resources follows from their indispensable and prominent role in national economic development and the satisfaction of basic human needs. The permissibility of the redistribution of resources then turns on the fact that natural resources are unevenly distributed on earth, that political borders which determine the collective entitlements to randomly dispersed resources are a result of contingent and sometimes unjust historical forces, and that their arbitrary occurrence creates an undeserved advantage for these collectives.

To correct what Beitz called “morally arbitrary” location of individuals and collectives vis-à-vis natural resources (Beitz 1979, 138), a global redistribution of resources is required. Invoking Rawl’s hypothetical original position behind a veil of ignorance, Beitz argued that when such a position would be hypothetically applied internationally, collectives would agree on a global resource redistribution principle which would give each society a fair share of natural resources and hence a fair chance to develop just political institutions and an economy capable of satisfying its members’ basic needs (Beitz 1979, 141-142).62 I will return to details of Beitz’s redistribution proposal below. At this point, let me emphasize the main methodological feature of this conception which exerts a strong hold over philosophical theorizing about natural resources. The critical claim that the distribution of natural resources is morally arbitrary and that resources create undeserved advantages for those who “happen to have them under their feet” (Beitz 1979, 141) mirrors a moral principle of distributive justice, not existing conflicts and struggles over natural resources. 63 There are no countries making any kinds of distributive or other claims to natural resources located on some other country’s territory.64 In fact, making claims to resources on foreign territories was typical for the centuries long colonial era when European powers made property and sovereignty claims to resources on the basis of morally dubious and now invalid international law principles such as the right of conquest, right of discovery and occupation, or natural rights of free navigation and trade. Today, such claims are illegal. Territorial borders of current international system of sovereign states are largely uncontested, accepted, and legitimate ways of determining territorial rights of states (Zacher 2001), including rights to unevenly distributed resources. No state or group of individuals identify and contest the injustice of being excluded from benefits arising from natural resources in some distant parts of the world. Beitz’s critique of moral arbitrariness of random and uneven resource allocation and his argument for the global redistribution of natural resources is not based on an empirically robust and reflective analysis of what natural resources “do” to individuals and societies. It starts instead with a normative principle of global distributive justice whose philosophical defense is the main concern. This approach, namely that there is a general principle of morality or justice which must be normatively superior and ontologically independent from any existing

The underlying distributive principle is that each person has an equal prima facie claim to a share of the total available resources. However, departures from this initial standard could be justified (analogously to the operation of the difference principle) if the resulting inequalities were to the greatest benefit of those least advantaged by the inequality. In any event, global resource redistribution principle would function in international society as the difference principle functions in domestic society (Beitz 1979, 141-142).

Allen Buchanan has called this methodological tenet of contemporary normative theorizing a “mirroring view”. The mirroring view is based on a widely shared and uncritically accepted assumption that moral rights are the only proper object of normative philosophical inquiry because they have an ontological and moral priority over legal rights or other existing institution. These, if they are subject to moral inquiry at all, have to be theorized only in connection with these antecedent, philosophically justifiable moral rights – they are to be interpreted either as their mirror reflection or judged critically in light of independent moral rights (Buchanan 2013, 14). 63

There are disputes over transboundary resources and conflicting claims over resources in resource frontiers (e.g. disputes over fossil fuels in the Arctic). But no countries or collectives make claims to fossil fuels, minerals, or other earth deposits located in undisputed sovereign territories.

historically contingent institutions or relations and as such must be the starting point of inquiry, is typical for other conceptions of natural resource justice as well. A so called left-libertarian position defended by Hillel Steiner is one of them. Steiner started with the ultimate libertarian moral principle of self-ownership. In his view, self-ownership implies not only a demand for a full control of one’s person but also the right to appropriate external objects such as natural resources which exist independently of our efforts and labor. Since self-ownership belongs equally and universally to each person, each person has an equal share entitlement to the value of all land and natural resources on earth (Steiner 2009a, 2011a). This universal moral right generates global distributive justice duties. To fulfill these duties, Steiner proposes states pay a tax at a rate of 100 percent based on the aggregate market value of all content within a “territorial site” they occupy into a Global Fund (Steiner 1999, 183). Each nation then has an equal per capita claim on this fund which is to be equally disbursed among its citizens as an unconditional basic income (Steiner 2009b, 2011b). Another conception resulting in a proposal for a global resource tax was developed by Thomas Pogge in whose case it reflects a moral critique of global poverty. According to Pogge, the extent and the severity of global poverty generate not only a positive duty to help persons in acute distress but also a negative duty not to actively contribute to the impoverishment or profit from it. The negative duty not to uphold injustice of global poverty is generated by the fact that it is being maintained through a system in which better-off countries use vastly more of the world’s natural resources, unilaterally and without giving any compensation to the global poor for their disproportionate consumption. Global poor, so Pogge, “own an inalienable stake in all limited natural resources” (Pogge 2001, 66). In order to reform this unjust status quo of the disproportionate use of world’s resources, those who make more extensive use of our planet’s resources should compensate those who, involuntarily, use very little. Pogge proposes a global redistribution system based on levying a Global Resource Dividend (GRD) on countries based on the aggregate value of extracted and sold resources, with only 1% of that value to be taxed. Revenues from the fund would then be disbursed to poor countries’ governments, conditional upon concrete progress towards poverty alleviation (Pogge 2002, 196-215). Yet another conception relying on the methodology of the practice-independent moral theorizing is that of Mathias Risse. In an influential book on Global Justice (2012), Risse defended a general moral principle that humanity collectively owns the earth. Invoking early modern natural law thesis of the original common ownership of the earth, especially that of Hugo Grotius, Risse proposed we see the earth and its natural resources which exist independently of human activities (and thus prior to moral claims individuals or groups might have to them) as belonging to humankind collectively. Common ownership of the earth – together with common humanity as the second universal, foundational, nonrelational ground of global justice Risse identifies – is the form of ownership of resources which best reflects the moral significance of natural resources for human life. Common ownership of the earth then requires that all co-owners, i.e. all humans, have an equal opportunity to use earth’s natural resources for the satisfaction of their basic needs (Risse 2012, 108-129). In practical terms, it implies that states have to protect the fundamental right of all earth’s co-owners to use collectively owned resources, for example by allowing migrants to enter a territory when it is underused by a state to whom it belongs or by sharing fairly the absorptive capacity of the atmosphere. Trying to move beyond the dominant view that natural resources or their monetary values are a privileged distributive good which ought to be subject to global redistribution, Chris Armstrong (2017) recently developed a theory of natural

resource justice centered around an egalitarian moral principle of equal access to wellbeing. Armstrong started with a plausible observation that natural resources are only one important source of advantage among many which drives access to human wellbeing. The overall wellbeing must determine the way we think about the distributive justice and hence about the distribution of natural resources. Moreover, we should seek to distribute not only the benefits arising from the use of natural resources but also the burdens they may generate in such a way as to equalize the access to wellbeing (Armstrong 2017, 62-82). However, Armstrong’s conception is also built on the practice-independent methodological premises of egalitarian moral philosophy and committed to a global scope of justice. To fulfill demands involved in the egalitarian moral principle of equal access to wellbeing for all individuals worldwide, Armstrong suggests reforms concerning global redistribution of resource rents and other benefits or burdens flowing from the use of natural resources to the global worst-off – sovereign wealth funds taxes, taxes on the use of common-pool resources (e.g. fish catches in high seas), and on greenhouse gas emissions and carbon taxes. These dominant conceptions of natural resource justice all use a distinct practice-independent methodology of moral theorizing. It is based on a commonly shared and uncritically accepted assumption of contemporary philosophy that universal moral rights or principles which transcend existing institutions, practices, or legal rights are the only proper object of normative philosophical inquiry. A more detailed discussion and a critique of this approach is beyond the scope of this paper.65 What matters in the present context is that this methodology leads to two weaknesses when applied to the area of natural resources. First, it does not promote a sound empirical analysis and a plausible critique of the misuse of natural resources. As Beitz’s critique of “morally arbitrary” distribution of resources or Pogge’s critique of the exclusion of global poor from enjoying world’s natural resources show, if empirical problems are identified at all, they mirror the regulative ideal or a moral principle which is being defended rather than reflecting on the real world issues and conflicts over natural resources and the ways they are framed by concerned actors. Second, the emphasis on the centrality and priority of moral rights or principles which are independent of existing institutional structures translates into conceptions which are practically unfeasible, unmotivated, or in unresolvable conflict with other legitimate institutions – e.g. international consensus building, democratic decisions, collective self-determination, state borders and territorial rights, or existing ownership and property rights. Let me demonstrate these weaknesses by looking more closely at the proposals for global resource taxes which are preferred practical implications of most global distribution approaches.

2.1

Global Resource Taxes and the Problem of Feasibility and Relevance

Let’s first consider Beitz’s proposal that natural resources should be redistributed according to a difference principle of global distributive justice which benefits the worst-off to correct morally arbitrary standing of collectives vis-à-vis unevenly dispersed natural resources. Regardless of the fact that the fact of random distribution of resources has not been perceived as unjust by real world actors,

Focusing on the stark contrast between moral and legal rights in the discourse about human rights, Allen Buchanan has subjected this approach to a systematic critique (Buchanan 2013, 3-49). Another critique of this approach was developed by Steven R. Ratner (Ratner 2015, 29-37).

neither in the past nor in the present, there is another misconception involved in Beitz’s claim that collectives have no prima facie claim to the resources lying under their feet and therefore resources can be simply taken away and given to other “less lucky” collectives. First of all, natural resources are an inextricable part of the environment in which societies are formed and reproduced and taking away their resources by external actors harms their rightful claims to self-determination and territorial integrity and control.66 Secondly, natural resources, as Hayward correctly pointed out, become instrumental for humans and hence distributable only after they are prospected, assessed, extracted, appropriated, and processed using technology at every step of the human engagement with resources. These activities in virtue of which resources become resources in the meaningful sense of the term generate value which attaches to them. They also give rise to potentially legitimate property claims to resources based on the accepted moral principles of desert or improvement (Hayward 2006, 352). Beitz’s assumption that there is no prima facie claim to the resources and that any kind of exclusion of others from using given territorial natural resources is unjustifiable thus does not correspond with how resources become valuable and hence how claims over resources are made and recognized in the real world. Concerning the implementation of the global distributive principle in practice, Beitz does not specify what resources ought to be distributed, how and on the basis of what value-determining standard they might be valued, and how to institutionally realize the global redistribution in practice. Even if we could find practical solutions to these hugely challenging issues, the question arises whether we should really seek to redistribute resources themselves. What if, as David Miller (1999) has asked, some countries value resources differently and do not want to use them at all for compelling environmental reasons – like for example Ecuador and Nigeria who have recently considered a moratorium on oil extraction because it has only caused harm to its citizens and its extraction is in conflict with climate change mitigation efforts. Even if there would be a way to resolve the conflict between legitimate domestic preferences and demands of global distributive justice, would Beitz’s proposal lead to a situation where developing countries with oil, gas, diamonds, gold, and other highly valuable minerals would redistribute their resources to developed countries such as Japan or many EU countries which have none? Last but not least, how exactly would these transfers improve the economic position of the worst off? Experience suggests that natural resources do not make a direct and unambiguous contribution to national economic development in themselves. In fact, evidence from resource curse literature supports rather contrary conclusion (Rawls 1999; Karl 2007; Hayward 2006; Ross 2012; Wenar 2008, 2016; Nili 2016), showing that institutional health and (resource) governance are much more significant for economic development than mere natural endowments (Risse 2005; Robinson, Torvik, Verdier 2006). Steiner’s proposal attempts to avoid Beitz’s empirically unfounded view that natural resources as such are a directly and universally beneficial distributive good. His resource egalitarian principle is therefore conceived not in terms of the right to a share of natural resources per se but as the right to an equal portion of their value, more specifically a claim to a share of an aggregate global value of

66 Moreover, many indigenous communities are attached to natural resources because they are part of their culturally, socially, and economically specific way of life. The recognition of the moral significance of the attachment of human groups to natural environment (e.g. of indigenous communities to ancestral grounds) has in fact informed the process of recognition and legalization of indigenous rights.

“territorial sites” current states occupy. The value of territorial sites is calculated as the difference between the aggregate market value of all its contents and the aggregate market value of those of its contents that constitute improvements made to it by human activity (Steiner 1999, 175). This approach is supposed to avoid a situation in which poor countries with plentiful resources would transfer resources to resource-poor developed countries. However, as Hayward remarked, the calculation of the value of territorial sites is entirely insensitive to the necessity of employing different standards of assessment of the value of improvement in different parts of the world on the one hand, and to the natural properties of a site on the other. While a precise and globally acceptable value determination of a territory is close to impossible, a 100% tax rate is then politically unacceptable and unfeasible. Furthermore, Steiner’s proposal to tax the value of natural resources in territorial sites regardless of their use acts as a disincentive to conserve resources which is becoming more and more important for many countries and communities across the world for environmental reasons (Hayward 2006, 366367). Pogge’s GRD is meant to be levied on the value of natural resources if and when they are extracted or harvested and offered for sale on the market. It is a merit of Pogge’s proposal that his GRD is intended to also make resource exploitation more expensive and thus serve the ends of conservation as well as the purpose of eradicating world poverty. But there is again the problem with regressive redistributive effect, as pointed out by Hayward: if a tax on natural resources is intended to have progressive redistributive effects, there is a case for levying it on those who derive more economic benefit from the exploitation of raw resources rather than on those who, engaged in primary harvest or extraction, will generally yield the least added value from the resource. Otherwise, those most dependent on raw material exports are liable to taxes while the industrialized rich are much more marginally affected (Hayward 2006, 367). Pogge’s proposal also illuminates the problem not raised by global distributive justice theorists, namely that their global taxes proposals are either in a stark contrast between existing policies or policy proposals developed in the practice (e.g. the already mentioned moratorium on oil or coal extraction) or that they disregard existing institutions designed to achieve the same purpose. Concerning the eradication of poverty for example, there is a global system of foreign aid and development assistance to eradicate poverty which redistributes wealth from the betteroff to the worst-off. Far from being perfect, it might nevertheless be looked at first, its assessment serving as a starting point for a discussion about sensibility and potential implications of transfers of resource rents among nations. ─ The disconnection between Pogge’s GRD proposal and the discussion of the existing system of aid demonstrates that besides the two broad flaws inherent in the abovementioned proposals – the regressive impact of resource or resource value redistribution on the wealth distribution in the current world and the problem of wrong incentives (e.g. encouraging the production of externalities such as pollution) – there is a significant problem of economic relevance and political feasibility of these proposals. Not only have resources played a very ambiguous role in sustaining economic growth and development over time and hence are not reliable as prominent sources for redressing existing inequalities, they recently started playing a much smaller income generating role overall. Natural resource endowments do not feature prominently in the determination of the wealth of nations. In developed economies, the focus of

economic production has shifted from natural resources to capital. 67 The salience of capital for wealth and development renders resource taxes largely irrelevant for the goal of redressing global inequalities (Heath 2005; World Bank 2006). Global taxes on capital have accordingly captured greater attention in recent years. Two taxes which are being discussed among policy-oriented academics and to a lesser extent in policy circles are a tax on currency exchange and a global carbon tax.68 To conclude, a single undifferentiated global tax on natural resources, either on resource holdings or their value and consumption, is unlikely to promote justice in the real world. The most pressing issues concerning natural resources are not related to their unequal global holdings. The most morally urgent problems with natural resources arise in domestic contexts and can be said to fall within two broad categories: one category concerns the abuse of natural resources by illegitimate or corrupt governments, the embezzlement of resource rents and revenues, and the abuse of resources for the perpetration of injustice such as political repression and state-sponsored violence. Let’s call it the resource-based domination. The other category is the inequitable distribution of benefits and burdens arising from resource extraction and revenue allocation among various constituent groups within state. In most countries, valuable resources are exploited via large extractive projects which generate profits for limited number of stakeholders and at the same time create significant costs and burdens for the people and local communities – environmental damage, deforestation, loss of biodiversity, water and soil pollution, threats to food sovereignty, loss of the way of life, displacement, and social conflict arising from all of these harms. I propose we call it inequitable benefit and burden sharing. The third set of issues arises from states’ depleting global commons or failing to reach agreement on the sustainable international management of resource domains such as the atmosphere or the ocean’s resources. It can be called the tragedy of global commons. These problems which have in recent years been brought to global public attention by the countless movements and organizations, including UN and NGOs such as Global Witness, Transparency International, Natural Resource Governance Institute, Clean Trade and others, are hardly solvable by global redistribution of resources themselves or their monetary values. To solve them, a more nuanced appraisal of natural resources’ societal roles and main socio-economic patterns of their use and abuse is necessary, along with a critique

Only in some developing countries resource exports continue to account for a large proportion of GDP. Countries in which resource rents account for more than 20% of the GDP are Azerbaijan, Republic of Congo, Democratic Republic of Congo, Burkina Faso, Guinea, Iraq, Kuwait, Liberia, Mauritania, Mongolia, Oman, Quatar, Saudi Arabia, Sierra Leone, Suriname. In the Euro area, it is 0,1%. See: https://data.worldbank.org/indicator/ny.gdp.totl.rt.zs 68

Considering the enormous scale of global financial activity (e.g. currency transactions) and fossil fuel consumption, these global levies could indeed have the potential to raise large sums which could support global programs to reduce poverty, hunger, protect refugees, ensure primary schooling for all children, or reverse the spread of diseases. Annual currency trading is 10 times the global GNP and a modest 0.5 percent tax would generate over $1.5 trillion per year (the total UN annual budget is a mere $10 billion) for peace and sustainable development. Likewise, studies indicate a global carbon tax, levied on fossil fuel consumption, could raise over $1 trillion annually (Baumert 1998).

of dominant legal and political institutions which govern them. These two aspects will be the subject of the discussion in the following two sections.

Natural Resources and Societies

Much of the above-mentioned conceptions of global distributive justice rely on a reductionist and essentialist understanding of natural resources which downplays the complexity of their physical occurrence in nature, the variety of their uses by humans, and conflicting meanings resources have for individuals and collectives, currently and historically. The global distributive justice approaches reduce natural resources to distributive goods which have a universal and directly beneficial economic value for humans, assuming uncritically that this value trumps other values resources might have. This is typical for both Beitz and Steiner who assume that natural resources are a normatively special, privileged global distributive good which itself (or its monetary value) ought to be divided equally among individuals or collectives.69 Risse’s argument that the earth as a whole and its “original” spaces and raw materials that exist independently of human activities ought to be collectively owned also relies on a narrow instrumental view of natural resources as main sources of the satisfaction of basic human needs of survival and revitalizes an old natural law idea of abundant and inexhaustible original natural resources given to humankind by God for its survival and enjoyment. Apart from problematic moral implications of this idea,70 Risse also uncritically assumes it is possible to clearly distinguish between original resources and resources that came into being as a result of a human activity – and that each of these categories is subject to a distinct yet universal distributive principles or property claims. These essentialist assumptions about resources and their distributive values which underlie dominant philosophical conceptions misapprehend the complexity of the world of natural resources and the variety of human entanglements with them. Simply considering the most conventional natural resources such as water, air, fish, trees, oil, gold, diamonds, or shale gas we can see that natural resources differ vastly in the degree to which they can be clearly geographically located and circumscribed, in ways they can be accessed and utilized, and in technologies necessary for isolating them from other natural resources or removing them from nature. Natural resources are also parts of resource domains and ecosystems and they therefore differ in the degree to which their use impacts other natural resources and in the degree to which their extraction creates negative externalities, environmental and human. They also differ, as Susan Buck put it, in the degree to which they are excludable and subtractive, meaning that some natural resources allow more or less readily to exclude others from their use and that their use prevents similar use by others because significant value or amount is subtracted

Pogge also treats natural resources as a special category of economic commodities whose extraction and sales is to be taxed to correct global inequalities. 70

This idea, which was employed by early modern natural law thinkers such as Locke and Grotius to justify the institutions of exclusive property and sovereignty rights, has at least two problematic implications. On the one hand, it involves a notion of a moral imperative to use given natural resources effectively and to the best advantage of life, not leaving them to waste. On the other hand, once resources are appropriated and value is added to them through labor, permanent and exclusive property claims to them are fully justifiable, with little limits attached to them.

(Buck 1998, 4-5). Depending on the available technology and the size of the pool of users and their practices, excludability and subtractiveness of a given resource change over time. Fishing in global oceans or the use of the absorptive capacity of the atmosphere are good examples of resources which, while non-excludable, have become highly subtractive with rapidly changing patterns of use. Importantly, natural resources also have different kinds of morally significant values for humans. Natural resources like air, water, land have a life-supporting value. Most natural resources have an economic value through which humans can achieve a number of morally significant but also morally repugnant ends – they can enhance collective welfare but also fund repressive political rule. In modern history, it has been above all the economic value of natural resources which gave rise to ownership claims and legal entitlements to natural resources and which engendered systems of territorial control and sustained complex social and economic practices in societies. Beyond these strictly instrumental values, natural resources also have symbolic and intrinsic values, i.e. they can be valued on account of their inherent features or features to which humans might be attached on non-economic grounds. Ancestral lands many indigenous tribes value or protected biodiversity spots such as Yasuní rainforest or Galápagos Marine Reserve are a good examples. We can also say that natural resources are linked with various essential categories of human rights – the right to life, the rights of minorities to enjoy their culture, the environmental rights, and social and economic rights related to welfare, health, and the adequate standard of living and the access to water and food. These complex, intersecting, and over time and space changing features and social and economic “roles” of natural resources make it impossible to accept a single redistributive principle as a solution to global inequality problem. The way we think about natural resources from the perspective of justice obviously requires a more differentiated approach. In his book Justice & Natural Resources, Chris Armstrong attempted to correct the simplistic and reductionist take on natural resources endemic in contemporary moral theorizing by providing a more nuanced view on the very category of natural resources. Following three distinctions are key to his approach: 1) natural resources facilitate human wellbeing in complex ways, 2) there is a variety of categories of natural resources, and 3) natural resources as sources of both benefits and burdens. Let me discuss each of these point in turn with an aim to further highlight the shortcomings of the debate about natural resources in the philosophy of justice and to suggest that a rightsbased perspective might offer a way forward.

3.1

Wellbeing and Natural Resources

The first argument Armstrong makes is that natural resources facilitate or promote human wellbeing in different ways. Trying to correct the implausible view that natural resources are a prominent global distributive good with a universally beneficial value for all humans – the view he called “natural resource exceptionalism” (Armstrong 2017, 64) – Armstrong argues that it is important to recognize that natural resources are only one important source of advantage among many which drives access to human wellbeing. The extent to which resources are an advantage depends on human capacities, individual or collective, and other resources (e.g. national wealth, political institutions) to convert resources into benefits. According to Armstrong, the way we think about the distribution of natural resources must thus be determined by egalitarianism in terms of overall wellbeing, not equality of natural resource holdings. Also, resource benefits should be harnessed to redress inequalities which arise from other sources and which are

100

more consequential for human access to wellbeing more broadly, e.g. gender or ethnic inequalities (Armstrong 2017, 64, 71-73). The suggestion that natural resources facilitate human wellbeing in various complex ways is a plausible point. But what is wellbeing and how exactly does it relate to natural resources? Is there a universal notion of human wellbeing and can we be more specific about its substance and content? Is wellbeing to be understood in individual or collective sense? Moreover, how do we define wellbeing across cultures and how do we resolve the conflict between conflicting visions of wellbeing? Most importantly, is there a more specific notion of how natural resources facilitate or impair human wellbeing? Which resources are the key to (which) wellbeing? Are there patterns of turning specific resources into wellbeing and what matters most for turning resources into wellbeing – what capacities and what institutions? Unfortunately, Armstrong does not provide any systematic and comprehensive elaboration of the category of wellbeing and its relation to natural resources and of the way resources enhance or diminish human wellbeing, either individual or collective. Neither does he explore critically the prevalent (macro)-economic notion of wellbeing which has established itself in the practice in relation to natural resources. This notion of wellbeing results from efforts of states to maximize their national budget revenues and to finance government’s expenditures which have led to a widespread and dominant practice of states seeking to benefit from natural resources within their territorial jurisdiction by extracting, processing, and selling them on global commodity markets or by subcontracting these rights to private corporations in exchange for royalties and taxes. This practice has a very long pedigree reaching back to the early days of the European colonization. 71 In contemporary international legal system of permanent sovereignty over natural resources, this practice is implicated in the very foundations of the system and its allocating exclusive and extensive supreme jurisdictional and ownership rights to territorial natural resources to states. These overarching jurisdictional powers over resources have been justified by the right to collective self-determination and the role natural resources play in boosting economic development. A full territorial control and national ownership of natural resources has been considered indispensable to both political self-determination and national economic development (Schrijver 2010). As a result, most states and their governments have been trying to maximize the full value that can be obtained from the exploitation of natural resources. They engage in large-scale extractive projects, usually relying on foreign investment, hoping for a maximum possible income. The collective wellbeing natural resource extraction is meant to provide is then measured in terms of national income from resource rents, sales, royalties, and taxes (Gilbert 2018, 63-70). This dominant “extractivist” approach is embedded in the regime of territorial sovereignty over natural resources and is reinforced by international legal and political regimes regulating trade, foreign investment, development and monetary aid, and debt alleviation which encourage states to exploit their resources to the fullest for a macroeconomic gain. This macroeconomic paradigm of wellbeing with respect to natural resources has a tremendous impact on how natural resources are used and managed and how and to whom are the resource benefits and burdens distributed. It implies that states claim sovereignty over all valuable

This practice can be traced back to the colonial era during which European sovereigns claimed the right to rule over distant people and also laid property claims to foreign territories and natural resources which they then exploited for centuries for their own benefit. Since then, valuable subsoil resources such as minerals and fossil fuels are vested in sovereignty (Scott 2008; Linklater 2013).

101

natural resources within their territory, recognizing neither intra-territorial and resource rights of minorities (e.g. indigenous groups) nor extra-territorial rights to resources of outsiders (e.g. rights of humankind to biodiversity conservation). Relatedly, states also exercise their sweeping jurisdictional prerogatives concerning resources with very few limits and no conditions of legitimacy attached to decisions they make about resources and no notion how to justly allocate the benefits and burdens arising from the resource extraction and revenue generation (Gümplová 2017). Any discussion about wellbeing and natural resources ought to subject this dominant extractivist notion of macroeconomic wellbeing to a thorough analysis and critique. Why? First, it has become fairly evident that it yields very ambiguous results. Resource curse research has shown that countries with high-value, non-renewable resources like minerals and fuels tend to have less economic growth and worse development outcomes than countries with fewer natural resources (Sachs and Warner 2001; Ross 2012; Acar 2017). Many resource rich countries end up with low incomes from the resource extraction also due to revenue export and tax avoidance.72 Others fail to benefit from the extraction due to pervasive corruption, authoritarianism, poor management, bad investment deals, and weak fiscal policies (Collier and Venables 2011; Menaldo 2016; Africa Progress Report 2013). Moreover, in many states the resource extraction has minimal or even adverse distributive effects for the population. Most extractivist projects usually benefit ruling economic elites, public authorities, and concerned industries (Vermeulen and Cotula 2010; Cotula 2013) and burden local communities with harmful social and environmental impacts. Monetary benefits of resource extraction are transferred back into society very indirectly, with local communities and the marginalized or vulnerable groups rarely being the recipients of these benefits (Gilbert 2018, 75). To redefine the dominant extractivist paradigm of macroeconomic wellbeing in relation to natural resources with a view to sustainable, environmentally sensitive, and socially and distributively just outcomes for concerned societies appears to be the most pressing task for anyone concerned with natural resource justice in contemporary world. In any case, any new paradigm of natural resource justice possibly centered around a notion of human wellbeing cannot rely on an essentialist understanding of natural resources and their universal distributive or substantive value they have for humans across time and space. An approach which refers to various categories of human rights appears to be more suitable for the determination of the multiplicity of wellbeing which can be achieved or threatened with natural resources and hence for the determination of governance principles and distributive policies.

3.2

Natural Resources and Basic Human Rights

According to Armstrong, one important way to be more specific about how natural resources promote human wellbeing is to distinguish between basic natural resources and natural resources as commodities. Basic natural resources are a special category of resources which are necessary to human survival and provide

Due to high costs of exploitation of resources and the instability of commodity prices, most countries provide significant reductions in taxation – or no taxation at all – when it comes to extraction of natural resources. Supported by international financial institutions as a way to encourage investment, taxation tends to be ring-fenced. As a result, many resource-rich countries end up with a very low income from their natural resources (Gilbert 2018, 84-85).

102

non-substitutable supports for basic human rights. Water and air are the most prominent natural resources of this kind. According to Armstrong, any natural resource justice conception, not just an egalitarian one, then ought to defend the basic entitlement to these essential natural resources, e.g. by defining sufficient shares of these goods. Concerning water as an example, humans can be said to require 2,5-3 litres of water per day for drinking and total of 30-50 litres for cooking and sanitation. Global supplies of fresh water are more than sufficient to satisfy these needs, however, there is local scarcity in some places in the world which arises from failures in water-harvesting and transportation infrastructure. To correct some of the worst cases of water shortages in poor countries (e.g. Yemen, Western Sahara, Libya, Djibouti, or Jordan), Armstrong proposes to levy a small global tax on the use of fresh water, with the proceeds going to enhance water-harvesting technology in these countries (Armstrong 2017, 15, 30, 192). Natural resources as commodities are a category of natural resources which are substitutable supports for basic rights and are valuable primarily in light of their ability to fuel economic processes. According to Armstrong, a large available surplus of benefits flowing from these resources ought to be redistributed in the interest of global justice towards the worst-off individuals across the world and to correct gender- and ethnicity-based inequalities which often structure the inequitable distribution of resource benefits. While Armstrong does not support the view that the surplus ought to be distributed in a strictly egalitarian manner, he is nevertheless committed to the global scope of the redistribution of benefits arising from the commodification of natural resources. In the world of sovereign states, he proposes to achieve such redistribution using global taxes – e.g. sovereign wealth funds taxes or taxes on the use of common-pool resources (e.g. fish catches) – which are to be used for a variety of causes promoting global equality, e.g. funding of infrastructure project, fighting disease, or supporting primary education in poor countries (Armstrong 2017, 17, 74-75, 177-197). Armstrong’s global taxes proposals suffer with the deficiencies I discussed above – they are unmotivated and unfeasible. They are aimed at targeting the problem of global distributive inequality, not at what is widely perceived to be the most pressing justice issues with natural resources, namely the illegitimate (ab)use of resources and the failure to share benefits and distribute burdens of resource extraction fairly and equitably among various groups within a state. These are issues that exist due to failures of national resource governance; and they are solvable prominently by means of domestic and international reforms of resource governance. I propose to make sense of the variety of entitlements to various (and variously valued) natural resources as well as of the idea of legitimate and distributively just management and the use of natural resources by using a rights-based approach. Rights-based approach to natural resource justice does not start with assumptions about one dominant substantive value of natural resources or the idea that they are universally beneficial to all humans in one particular way and hence ought to be distributed according to one substantive principle of distributive justice. Rights-based approach to natural resource justice links natural resources to several intersecting and overlapping quintessential human interests – survival, security material welfare, freedom and agency, autonomy and self-determination, and cultural identity. Due to their universal moral importance, these fundamental human interests have indeed achieved the international legal status of human rights. Human rights such as the right to life and the right to access to the means of subsistence, the right to property, civil and political rights, social and economic rights (the right not live in poverty and the right to healthcare and education), rights of political participation and collective self-determination, and cultural rights express these interests.

103

An advantage of invoking the range of these fundamental human interests is, on the one hand, that it helps to lay out the plurality of values natural resources have for the humans and the degree to which natural resources are necessary for the fulfillment of these interests and, on the other hand, to determine and justify the claims to natural resources – not just distributive claims but also claims concerning property rights and the use of natural resources by others. Another distinct advantage of a rights-based approach is that it enables individuals and collectives to articulate their demands to natural resources in dynamically changing historical and socio-economic contexts and offers a universal language to articulate various kinds of injustices arising in connection with natural resources – the exclusion, the lack of access, control, or participation, (distributive) inequality, dispossession, violence or political oppression perpetrated in relation to natural resources. Rights are legal entitlements and create obligations for those who are defined as duty bearers with legal duties to uphold these rights. Taking water as an example, the rights-based approach implies that justice is best served not merely by defining sufficient shares of water and global redistributive policies but by defining an access to water as an essential human right to be protected and upheld by specific actors (Gleick 1998). In fact, such right already exists. The access to clean water and sanitation was declared as a human right by a UN Resolution in 2010, based on the recognition that clean drinking water and sanitation are essential to the realization of other human rights, especially the human right to adequate standard of living and the right to the highest attainable standard of physical and mental health as well as to human dignity. A human right to water implies that water should be available, of sufficient quantity and quality, and physically as well as economically accessible on a non-discriminatory basis to everyone; and that states who are the primary duty bearers with respect to human rights ought to ensure the equitable access to water and sanitation for everyone by organizing a system of water resources management, drinking water distribution, and sanitation and wastewater services in given (and changing) circumstances. By defining legal rights holders and duty bearers, the rights-based approach thus frames the process of effective policy making while at the same time making it possible to seek an effective remedy for actors whose rights have been violated.73

3.3

Natural Resources as Burdens

The third important point about natural resources Armstrong makes is that resources have to be seen not only in terms of benefits they deliver but also in terms of possible burdens – burdens that they in themselves inflict or burdens that may arise in the process of resource use. Given the significance of harms related to natural resources, a theory of natural resource justice should seek to distribute not only the benefits arising from the use of natural resources but also the burdens in such a way as to equalize access to wellbeing for all people including the future people. What are burdens and what kinds of burdens are natural resources related to?

73 In the practice, the most urgent question has been whether the privatization of the delivery and management of water resources should be privatized and whether it really translates into more efficient water management. The evidence suggests to the contrary: privatization leads to price hikes and hence the lack of access to water for the poor (Gilbert 2018, 55). In the practice, water rights have been pursued and adjudicated in courts in countries such as Bolivia, India, Israel, Bulgaria, or Botswana (Winkler 2012; Thielbörger 2013).

104

For Armstrong, the most important set of burdens relate to the opportunity costs of consuming resources. If an agent refrains from consuming valuable resource, s/he loses out on the economic development opportunities which would have accrued had the resource been consumed (Armstrong 2017, 20-21). With growing environmental awareness, many agents are enjoined to preserve biodiversity, wilderness, rainforests, or other ecosystems which deliver important global public goods. The problem is that there is a considerable distributive unfairness in bearing the opportunity costs of the conservation as many environmentally valuable resources are located in developing countries. Armstrong argues that these costs should be pooled globally. Taking rainforests as an example of resource domains providing non-excludable public goods of CO2 sequestration, pollution minimization, and sustaining global hydrological cycle and biodiversity, Armstrong argues that the costs of their conservation should be allocated not on the basis of the “proximity principle” according to which those who own the resource are responsible for its conservation but on the basis of the ability to pay principle, with an eye to background levels of advantage and disadvantage broadly construed (e.g. factoring in GDP per capita or levels of human development) (Armstrong 2017, 221-223). Lost economic opportunity costs related to conservation efforts surely are one category of burdens linked to natural resources. However, natural resources can be burdens in much more severe, consequential, and pervasive ways. For much of modern history, natural resources have been linked to violence, conflict, and unjust political rule and domination based on systematic racial and ethnic inequality and exclusion.74 In contemporary world, one important category of burdens concerns political injustice and violence and arises when illegitimate or unconstitutional governments usurp natural resources for the sake of sustaining their authoritarian rule or when states are unable to stop illegal militias from pillaging resources and perpetrate violence against local people. This connection between violence, authoritarianism, and natural resources, especially oil, was recently systematically explored by Leif Wenar in his book Blood Oil (2016). Wenar started with the observation that in the current world, there are many oil-rich states whose governments are unconstitutional, systematically violate human rights, and use resources for the private benefit of the ruling elite or for the perpetration of injustice, either domestically or across borders. In these states, the people are not only excluded from the benefits of possessing natural resources within their territories, in most cases they are also “cursed” by authoritarianism, violence, civil strife, and corrupt governance which are facilitated or funded by these resources.75 According to Wenar, these curses are linked to a distinct problem of “oil addiction” which reflects a non-democratic sovereign’s attempt to usurp and accumulate valuable natural resources to secure material source to maintain an unaccountable autocratic rule. The pathological effects of oil addiction include not only autocracy, repression, and militarism, but also tribalism, patronage, clientelism, and corruption and embezzlement as modes of governance. Wenar also identified the key mechanism

There is ample research showing that this is still the case. Within the broad literature on the various aspects of resource curse it has been proved that there is a correlation between abundance of high-value natural resources and conflict (Wantchekon 2002; Bannon and Collier 2003, 2011; Le Billon 2005; Shaxson 2008) and wars (Klare 2012) and insecurity (Kröger 2013; Vasquez 2014). 75 Here is the list of countries Wenar refers to: Gabon, DRC, Angola, Algeria, Nigeria, Colombia, Equatorial Guinea, Sudan, South Sudan, Chad, Central African Republic, Syria, Chechnya, Saudi Arabia, Iraq, Iran, Qatar, Kuwait, UAE, Oman, Bahrain, Liberia, Turkmenistan, Venezuela, Libya.

105

which keeps it in existence – the defective rules of international trading system which allow those who are ruthless enough to commandeer the resources to sell them. This “might makes right” rule (Wenar 2016, 77) which underlies the international trade with resources ought to be invalidated if justice in using natural resources is to be served. To finally disable this defective rule requires the recognition that there are core human rights, collective and individual, the respect for which constitutes the basis of an assessment of whether a given state can legitimately sell natural resources. I will return to Wenar’s reform solution in the last part of the paper. Let me emphasize at this point that Wenar’s rights-based approach differs significantly from the discussed global distributive approaches in that it starts with a reflexive identification of the patterns of natural resource injustice which occur in the practice and are perceived by concerned actors as such. His critique of these misuses of natural resources – the critique of what I called the resource-based domination – then relies on moral criteria obtained from a normative reconstruction of the international system of sovereignty over natural resources and other fundamental norms of international law. On this practice-dependent moral basis Wenar then attempts to develop a conception of the just use of natural resources by states and proposes institutional reforms. The same approach can be applied to the second category of burdens which are endemic to the extraction of natural resources and include a broad spectrum of environmental and social harms – water, air, soil pollution, loss of biodiversity and cultural diversity, deforestation, threats to livelihood and subsistence practices, displacement, the eviction from land without adequate compensation, police brutality vis-à-vis protesters and resistance movements, and other issues related to resource extraction such as precarious and hazardous working conditions for miners or child labor.76 This cluster of burdens has finally received a well-deserved attention in policy making circles;77 and it belongs to the second broad category of issues with natural resource I identified at the end of part one – the inequitable benefit sharing and burdens distribution among various stakeholders and intrastate groups – indigenous peoples, local communities, subsistence farmers, rural poor, women, or migrant workers. To conclude this part: I have argued that natural resources play multiple and intersecting beneficial and non-beneficial roles in human societies and individual lives and that these differ across time and space. Essentialist assumptions about resources and their distributive values are reductionist and implausible. To account for the plurality of instrumental values resources have for humans as well as to identify the variety of harms resources are directly or indirectly linked to, a rights-based approach is more fruitful. A rights-based approach consists in linking natural resources to several fundamental human interests articulated as human rights for which resources are directly instrumental or otherwise connected and uses them to determine a range of human activities concerning resources – distribution of property rights, distribution of benefits and burdens arising from extraction, management and governance principles, trade or conservation policies. To further explore the rights-based approach, let me now turn the attention to sovereignty over natural resources – a dominant arrangement determining the

Two most notorious cases involving all of those effects are Niger Delta pollution and Ecuadorean Amazon pollution. Both are often referred to as the worst environmental disasters on the planet and they were caused by decades of ruthless and unregulated oil extraction. 77

See e.g. a report from economies relying on resources in the Andean region showed the adverse social impact, distributional conflicts, social conflict, social gaps, inequality on subnational, intra-state level. i.e. effects of growth driven by resource extraction (Paredes Gonzales 2016).

106

systematic uses and abuses of natural resources which at the same time is the key to a reform.

Sovereignty over Natural Resources – Critique and Reform

Regrettably, philosophical accounts of global justice often stay clear of existing institutions and especially international law. The system of sovereign rights to natural resources which dominates the practice of using and misusing all natural resources on earth is no exception. In the discourse about natural resource justice, the current international legal system of allocation of rights to natural resources is either dismissed as unworthy of moral justification on its own terms or judged in light of general principles of justice. Alternatively, after a conception of justice is developed, the applications to non-ideal world of sovereign states are explored. The latter is the route taken by Steiner, Pogge, and Risse who propose how states might accommodate the principles of natural resource justice. Beitz and Armstrong go a step further and actually reject sovereignty over natural resources as an unjustifiable system of the distribution of rights to natural resources. • Beitz does recognize there is some morality involved in the system of sovereign states. It is after all states who are providing just domestic institutions, protect people against intervention and outside domination, and ensure distributive justice. Concerning natural resources, however, Beitz did not see any morality in states’ exclusive territorial rights to natural resources. For Beitz, as we have seen, natural resources occur within territorial borders randomly and arbitrarily and with no morally significant prior connections with given collectives. Moreover, the appropriation of natural resources leaves others comparatively and perhaps fatally disadvantaged. For these reasons, the exclusive sovereign claims to resources have no moral foundation. As Beitz put it, “no one has a natural prima facie claim to the resources that happen to be under one’s feet. The appropriation of scarce resources by some requires a justification against competing claims of others and the needs of future generations” (Beitz 1979, 141). It is Armstrong who engages in the most systematic denial of rights of states to sovereignty over natural resources. Two main strategies are employed to show that sovereignty over natural resources simply cannot be seen as the default position from the moral point of view. On the one hand, Armstrong shows that territorial sovereignty over natural resources and its exclusive rights to resources within a territory cannot be justified on the grounds of morally justifiable improvement or attachment claims. Neither can they be justified in terms of the moral relationship of custodianship – i.e. by invoking that states, due to their legal powers, can best ensure the protection and the most effective use of resources. According to Armstrong, this argument is ill-considered both in light of the shared nature of some important resources and in light of common global challenges concerning the exploitation or conservation of some natural resources. States do have political power to make and enforce binding agreements (environmental law e.g.) but they exercise this power very ineffectively. Equally problematic according to Armstrong are the self-determination claims upon which current international system actually rests and which allegedly assume an unwarranted connection between states’ ability to protect their citizens’ basic needs and full and exclusive rights over natural resources within their territories. (Armstrong 2017, 123-145).

107

• Secondly, and more plausibly given the question why should we expect the international system of states to embody or to be justifiable by these practiceindependent moral rights at all, Armstrong points out that the principle of sovereignty over natural resources grants states a set of rights the content and the scope of which is indefensible and fundamentally ill-placed to respond to demands of effectively managing the world’s natural resources. One has to fully agree that sovereignty over natural resources is being practiced and exercised by states in highly problematic ways and that sovereign prerogatives of states over natural resources need to be redefined and curtailed. The challenge, however, is not to dismiss sovereignty over natural resources as both morally unjustifiable and fundamentally and structurally defective but to show how it ought to be changed or reformed, possibly according to its own underlying moral principles and principles of justice underlying the international legal order itself. • Leif Wenar has pioneered this approach which takes the international legal system of sovereignty over natural resources as given and interprets it normatively on the basis of its own inherent moral principles and principles of justice which could serve as the main vantage point for its moral evaluation and critique of the state practice. Wenar, as I have already pointed out, started with a critique of the fact that many illegitimate or even illegal governments dispose of natural resources and use the revenues to sustain authoritarian rule. The key to correcting the injustice of abuse of natural resources for the perpetration of injustice is, in his view, to recognize the principle of ‘popular resource sovereignty’ which lies at the very core of the international legal system of sovereign right to resources and follows from the right to self-determination and human rights – two fundamental moral norms of current international legal order. These two international legal rights give meaning to popular sovereignty over natural resources and to its two key principles – ownership and authorization. Ownership means that all of a territory’s natural resources are a property originally vested in the people. Following from ownership, authorization then implies the right to popular authorization of property laws and other decisions over resources made by the state. • According to Wenar, the principles of ownership and authorization ought to be translated into four political conditions for the legitimate exercise of state power over resources – information (access to information about the use of resources), independence (the autonomy of the people and their freedom from manipulation and propaganda), deliberation (the possibility for free discussion of policies), and dissent (the possibility of expressing opinion in ways that have an impact on state policies). In yet more concrete political terms, these conditions require that citizens must have at least bare-bones civil liberties and political rights. The absence of civil liberties and political rights means no authorization is given by the people, and hence resource sovereignty is exercised illegally by a state (Wenar 2016, 220-238). Human rights, especially civil liberties and political rights, thus determine the permissible scope of sovereign rights in relation to the management of natural resources within territories and the conditions for the legitimacy of its exercise. Based on these widely accepted global standards concerning the legitimacy of political authority and their global monitoring (e.g. based on Freedom House index), countries can be assessed in terms of the permissibility of the exercise of their resource rights. Toward resource-rich exporting countries which persistently violate human rights, clean trade policies ought to be adopted. An exemplary Clean Trade Act Wenar proposes prohibits commercial trade with vendors in countries which do not meet the minimal accountability criteria and where citizens have no civil liberties and basic political rights, for example by making it

108

illegal to purchase resource from disqualified countries or by denying financial, commercial and judicial facilities to vendors of a disqualified country’s resources. Clean trade legislations can be complemented by anti-corruption and transparency measures, resource validation schemes, embargoes and sanctions, or revenue distribution schemes many of which are currently debated in international and domestic policy circles (Wenar 2016, 281-334). Wenar’s conception of popular sovereignty over natural resources and his clean trade reform proposal can be seen as a pioneering contribution to the development of a rights-based approach to natural resource justice. Rights-based approach, as I have argued, does not identify a universal substantive value of natural resources but links natural resources to legally universal human rights, thus making it possible to define and redefine demands to natural resources in various contexts and changing circumstances of justice, as well as to provide standards for natural resource governance pursued by states. Governance of natural resources, as Jérémie Gilbert put it, is a broad term referring to “the norms, mechanism, and decision-making processes concerning the exploration, licensing, contracting, allocation, and revenue generation of natural resource” (Gilbert 2018, 63). There are two broad aspects of natural resource governance for which human rights are relevant. The first one concerns accountability and legitimacy of decision making about natural resources and puts emphasis on participation and consent. It responds to the problem of resource-based domination I identified as one of the three dominant issues with natural resources. The other concerns the dimension of the distribution of the benefits (and burdens) emerging from the use and exploitation of natural resources and puts emphasis on equity, fairness, and respect for human rights. It is a solution to the problem of the inequitable benefit and burden sharing. Wenar, as we have seen, provided a response to the problem of resource-based domination, showing that unconstitutional and undemocratic governments cannot be considered to make legitimate decisions about natural resources and proposing international reforms aimed at preventing illegitimate governments from selling their country’s natural resources and use the revenues to sustain oppression and corrupt rule.78 Concerning the problem of the inequitable benefit and burden sharing domestic distributive justice, the main challenge is to allocate both benefits and burdens linked to the use and exploitation of natural resources fairly and equitably among various constituent groups within state and not in violation of individual and collective human rights (e.g. indigenous rights). This problem is at least as urgent as the problem of resource-based domination. In most countries, valuable resources are exploited via large extractive projects which generate profits for limited number of stakeholders (usually the concerned industries and public authorities) and at the same time create significant costs and burdens for the people and local communities such as indigenous people, rural poor, or subsistence farmers – environmental damage, deforestation, loss of biodiversity, water and soil pollution, threats to food sovereignty, loss of the way of life, displacement, and social conflict arising from all of these harms.79

On Thomas Pogge’s proposal, the developing countries should pass constitutional amendments stating that resources can only be sold by democratic governments, thus sending a clear message to the buyers to cease to trade with non-democratic governments (Pogge 2002). 79 Davis and Franks (2014) showed that most extractive companies do not currently identify, understand and aggregate the full range of costs of conflict with local communities, despite the fact that these conflicts may generate the same broad costly effects as those caused by technical problems, contractual or regulatory disputes, or environmental or safety breakdowns (such as a reduction in or suspension of operations). The research 78

109

Jérémie Gilbert’s latest book proposes the key to correct this endemic problem is to develop a notion of benefit-sharing which could be seen as a standalone principle of good governance over natural resources.80 Human rights lend themselves uniquely to providing the guidance for this much needed and still unjustifiably under-theorized notion of natural resource justice. While benefit-sharing is not explicitly expressed in human rights treaties, human rights provide sources for an interpretation and application of benefit-sharing conception, especially the right to self-determination, the right to an adequate standard of living, and the principle of non-discrimination. In the practice, it is within the field of indigenous peoples’ rights that a human rights-based approach to benefit-sharing has germinated, reflecting on the importance and long-term campaigns of indigenous people for the right to non-discrimination, development, participation, and property rights over natural resources. Consequently, the last few decades have witnessed an increase in benefit-sharing agreements between indigenous communities, governments, and private actors, notably mining and extractives corporations which provide indigenous peoples with sharing of project revenues, and preferential indigenous access to employment and business development opportunities (Gilbert 2018, 75-91; Morgera 2016; Schroeder 2007). To conclude this section: the system of sovereign territoriality is a deeply entrenched way of distributing rights over natural space and determined the forms of human use of nature. Settled by international law, territorial sovereignty implies a range of powers and privileges, including the right to have an ultimate control over the natural environment, to determine and enforce property rights within it, and the right to use freely its resources within its territorial boundaries. To be sure, the state practice resulting from this system of sovereign territorial rights is such that states sometimes use this natural property of theirs with a considerable degree of discretion and for their exclusive benefit. Despite the fact that sovereignty and its scope has been linked to many pressing issues, the response of a critically oriented philosophy, however, is not to dismiss sovereignty over natural resources as morally defective and fundamentally ill-placed to respond to any demands of justice, but to provide a systematic moral reconstruction of it, followed by the critique of how it is exercised based on these immanent moral criteria. Moral principles underlying the international system of sovereign states – most prominently human rights – are to be used in determining and circumscribing states’ prerogatives over natural resources. Not only do human rights provide criteria of political legitimacy of governmental power and hence conditions of rightful exercise of resource rights; they also help to define substantive distributive duties with regard to natural resources, obliging states to use natural resources for the social and economic benefit of its people.

also showed that environmental impacts such as pollution typically precipitate or trigger conflict, while broader social and economic issues (such as the distribution of project benefits or the quality of the company’s ongoing consultation processes) typically underlie situations of conflict. The conflict may then involve a blockade, while a third involved a fatality or injuries, damage to property, or the suspension or abandonment of a project – a particular risk in the feasibility and construction stages. 80 The principle of fair and equitable benefit-sharing has primarily emerged within the sphere of international environmental law, and more specifically within the field of biodiversity law. The 1992 Convention on Biological Diversity (CBD) requires State parties to ensure “the equitable sharing of the benefits' that arise from the utilization of indigenous and local communities’ traditional knowledge.” (Article 8)

110

Conclusion

This paper contrasted international legal approach to natural resources and justice with the most influential philosophical conceptions of global resource justice. To highlight the shortcomings of global justice approaches and to emphasize the advantages of the international legal approach – or what I called the rights-based approach – the paper focused on three areas: 1) the methodology of normative theorizing about natural resource justice, 2) the category of natural resources, and 3) the relation of a proposed conception to an existing and dominant system of sovereign territorial rights to natural resources. Concerning the methodology of normative theorizing, I argued that philosophical conceptions misconstrue the kinds of claims individuals and societies make to natural resources and offer conceptions which are practically unfeasible and usually in conflict with existing legitimate institutions. Concerning the very category of natural resources, I showed that contemporary philosophy of justice downplays the complexity of their physical occurrence in nature, the variety of their uses by humans, and conflicting meanings resources have for collectives; and I argued that looking at natural resources historically and empirically reveals conflicts which can best be captured by rights-based approach. Finally, the paper looked at the current international legal system of sovereignty over natural resources and argues that rather than dismissing it as unjustifiable on moral grounds, it should be reinvented and reformed in line with valid principles of international law, most importantly human rights.

References 1. Africa Progress Report. 2013. Equity in Extractives. Stewarding Africa’s natural resources for all. Africa Progress Panel: Geneva. 2. Acar, S. 2017. The Curse of Natural Resources: A Developmental Analysis in a Comparative Context. New York: Palgrave Macmillan. 3. Armstrong, C. 2017. Justice and Natural Resources. An Egalitarian Theory. New York: Oxford University Press. 4. Bannon, I. and P. Collier (eds). 2003. Natural Resources and Violent Conflict: Options and Actions. Washington: World Bank Publications. 5. Cotula, L. 2013. The Great African Land Grab? Agricultural Investments and the Global Food System. London and New York: Zed Books. 6. Davis, R. and Franks, D. M. 2014. Costs of Company-Community Conflict in the Extractive Sector. Corporate Social Responsibility Initiative Report No. 66. Cambridge: Harvard Kennedy School. https://www.shiftproject.org/resources/publications/costs-company-community-conflict-extractive-sector/ 7. Beitz, C. 1979. Political Theory and International Relations. Princeton: Princeton University Press. 8. Buchanan, A. 2013. The Heart of Human Rights. New York: Oxford University Press. 9. Buck, S. 1998. The Global Commons: An Introduction. Washington: Island Press. 10. Collier, P. and A. Venables (eds). 2011. Plundered Nations? Successes and Failures in Natural Resource Extraction. New York: Palgrave Macmillan. 11. Gilbert, J. 2018. Natural Resources and Human Rights: An Appraisal. New York: Oxford University Press. 12. Gleick, P. 1998. Human Right to Water. Water Policy 1 (4): 487-503. 13. Gümplová, P. 2017. Rights to Natural Resources and Human Rights. In Environmental Human Rights. A Political Theory Perspective, ed. M. Oksanen and S. O’Doherty and A. Dodsworth, 85-104, Abingdon: Routledge. 14. Hayward, T. 2006. Global Justice and the Distribution of Natural Resources. Political Studies 54: 349-369.

111

15. Karl, T. L. 2007. Ensuring Fairness: The Case for a Transparent Fiscal Contract. In Escaping the ResourceCurse, ed. M. Humphreys and J. Sachs and J. Stiglitz, 256-285. New York: Columbia University Press. 16. Klare, M. T. 2002. Resource Wars. New York: Metropolitan Books. 17. Klare, M. T. 2012. The Race for What’s Left: The Global Scramble for the World’s Last Resources. New York: Metropolitan Books. 18. Kröger, M. 2013. Contentious Agency and Natural Resource Politics. London: Routledge. 19. Le Billon, P. 2005. Geopolitics of Resource Wars: Resource Dependence, Governance and Violence. London: Routledge. 20. Linklater, A. 2013. Owning the Earth: The Transforming History of Land Ownership. London: Bloomsbury. 21. Menaldo, V. 2016. The Institutions Curse: Natural Resources, Politics, and Development. New York: Cambridge University Press. 22. Miller, D. 1999. Justice and Global Inequality. In Inequality, Globalization, and World Politics, ed. A. Hurrel and N. Woods, 187-210. Oxford: Oxford University Press. 23. Morgera, E. 2016. The Need for an International Legal Concept of Fair and Equitable Benefit Sharing. European Journal of lnternational Law 27 (2): 353-383. 24. Nili, S. 2016. Liberal Global Justice and Social Science. Review of International Studies 42 (1): 136-155. 25. Paredes Gonzales, M. V. 2016. Comparative and Descriptive Analysis of the Effects of the Extractive Industry Boom on Social Indicators in the Andean Countries. The Report of Natural Resource Governance Institute funded by the Ford Foundation. https://resourcegovernance.org/sites/default/files/documents/comparative-and-descriptive-analysis-of-the-effects-of-the-extractives-industry-boom-on-social-indicators.pdf 26. Pogge, T. 2002. World Poverty and Human Rights. Cambridge: Polity. 27. Pogge, T. 2001. Eradicating Systemic Poverty: Brief for a Global Resources Dividend. Journal of Human Development 2 (1): 59-76. 28. Rawls, J. 1999. The Law of Peoples. Cambridge: Harvard University Press. 29. Ratner, S. R. 2015. The Thin Justice of International Law. A Moral Reckoning of The Law of Nations. Oxford: Oxford University Press. 30. Risse, M. 2005. How Does the Global Order Harm the Poor? Philosophy and Public Affairs 33 (4): 349-76. 31. Risse, M. 2012. On Global Justice. Princeton: Princeton University Press. 32. Robinson, J., R. Torvik, T. Verdier. 2006. Political Foundations of the Resource Curse. Journal of Development Economics 79 (2): 447-468. 33. Ross, M. 2012. The Oil Curse: How Petroleum Wealth Shapes the Development of Nations. Princeton: Princeton University Press. 34. Sachs, J. and A. Warner. 2001. The Curse of Natural Resources. European Economic Review 45: 827-838. 35. Schrijver, N. 2010. Development Without Destruction. Bloomington: Indiana University Press. 36. Schroeder, D. 2007. Benefit Sharing: It's Time for a Definition. Journal of Medical Ethics 33 (4): 205-209. 37. Scott, A. 2008. The Evolution of Resource Property Rights. New York: Oxford University Press. 38. Shaxson, N. 2008. Poisoned Wells: The Dirty Politics of African Oil. New York: Palgrave Macmillan. 39. Steiner, H. 1999. Just Taxation and International Redistribution. Nomos 39: 171–91. 40. Steiner 2009a. Left Libertarianism and the Ownership of Natural Resources. Public Reason 1 (1): 1-8. 41. Steiner, H. 2009b. Territorial Justice and Global Redistribution. In The Political Theory of Cosmopolitanism ed. G. Brock and H. Brighouse, 28-38. New York: Cambridge University Press. 42. Steiner 2011a. Sharing Mother Nature’s Gifts: A Reply to Quong and Miller. Journal of Political Philosophy 19 (1): 110-123. 43. Steiner 2011b. The Global Fund: A Reply to Casal. Journal of Moral Philosophy 8 (3): 328-334.

112

44. Thielbรถrger, P. 2013. The Right(s) to Water: TheMulti-Level Governance of a Unique Human Right. Springer. 45. Vasquez, P. I. 2014. Oil Sparks in the Amazon: Local Conflicts, Indigenous Populations, and Natural Resources. Atlanta: University of Georgia Press. 46. Vermeulen, S. and L. Cotula. 2010. Over the heads of local people: consultation, consent, and recompense in large-scale land deals for biofuels projects in Africa. The Journal of Peasant Studies 37 (4): 899-916. 47. Wantchekon, L. 2002. Why Do Resource Dependent Countries Have Authoritarian Governments? Journal of African Finance and Economic Development 5 (2): 57-77. 48. Wenar, L. 2008. Property Rights and the Resource Curse. Philosophy & Public Affairs 36 (1): 2-32. 49. Wenar, L. 2016. Blood Oil. Tyrants, Violence, and the Rules that Run the World. New York: Oxford University Press. 50. Winkler, I. 2013. The Human Right to Water: Significance, Legal Status and Implications for Water Allocation. Oxford: Hart Publishing. 51. Zacher, M. W. 2001. The Territorial Integrity Norm: International Boundaries and the Use of Force, International Organization 55 (2): 215-250.

113

Justice to Indigenous Peoples Nikhil Dongol Kathmandu School of Law, Kathmandu, Nepal nikhildongol91@gmail.com

Abstract. There are at least 5000 recognized distinct indigenous peoples across 90 different countries. This diversity of indigenous people cannot easily be captured in a universal definition and also its formal definition is neither necessary nor desirable because there are even anomalies in the term itself due to use of other local or national terms. This paper explains the criteria used to identify indigenous and tribal peoples in different regions. This identification is taken as the main problem in granting rights to them because there are dichotomies in the recognition of a particular indigenous group by other groups, to which ILO Convention 169 introduced the concept of self-identification and to implement it, there should be further awareness of the whole peoples of the country. This paper also analyses on the past experiences and good practices in the implementation of indigenous peoples' rights providing justice to Indigenous peoples. However, this paper does not attempt to provide a blueprint for implementation due to the diversity of situations faced by indigenous peoples in different countries rather would highlight the domestic legal policy and institutional framework of Nepal and would be exploring some genuine challenges posed by the Indigenous peoples in Nepal. Keywords: Indigenous Peoples, Self-Identification, Land Rights, Regional Cooperation.

Introduction

The term "indigenous" is derived from the word 'indigena' which literally means born to that particular place (Dictionary). They account for less than 5% of the total populace, however, make up 15% of the poorest (ILO, 2013). This unbalanced hardship is inseparably connected to a longstanding absence of understanding of indigenous people groups' rights. They speak huge majority of the world's estimated 7,000 languages and serve 5,000 distinct cultures (ILO, 2013). In Asia per se, there are almost 260 million indigenous peoples, making it world's most culturally diverse region (Lantos). This diversity cannot be effectively encapsulated in a universal precise definition. Some countries do not prefer to use "indigenous" or "tribal" peoples, however, incorporate other local or national terms such as native, aboriginal, scheduled tribe, adivasi/ janajati, hill tribes and many countries have developed definite records of these peoples. In Asia, terms have associated to where the indigenous peoples live or how they habitually make their living, for example, 'hill people' or 'shifting cultivators' and in Africa 'pastoralists' and 'hunter-gatherers'. In America, the term 'peasants' has been used. ILO Convention 169, Indigenous and Tribal Peoples Convention in Independent countries,1989 uses the broad terminology of “indigenous and tribal peoples” and assigns the same set of rights to both groups. In Latin America, for instance, the expression "tribal" has been connected to certain afro-descendent groups. For convenience, this is interchangeably used with “indigenous peoples”. Hence, there is an emerging consensus that a formal

114

definition of the term "indigenous peoples" is neither necessary nor desirable (ILO, 2009). The International Labor Organization (ILO) Convention concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries (ILO Convention No. 107) was the first multilateral convention that created binding obligations for States regarding indigenous people. Convention No. 107 had an inherent assimilationist approach and was based on the fundamental assumption that the only conceivable future for indigenous peoples was integration into the larger society. This was later concluded as obsolete and that its application in the modern world was counterproductive (Garcia-Alix). Consequently, the ILO finally adopted ILO Convention No. 169 by improvising Convention No. 107. ILO 169 is more of duties of states than the right of Indigenous People. UNDRIP, as being declaration, does not have the binding force of a treaty. However, it has a great normative weight as was adopted by the United Nations General Assembly with the affirmative votes of an overwhelming majority of member states and should be taken into account by all UN member States in good faith. The UNDRIP does not establish any new rights but instead reflects an articulation of existing rights to the context of indigenous peoples. Even the Indigenous peoples’ rights are not “special” rights (ILO, 2013), but are enunciations of universal human rights, as they apply to indigenous peoples. This implies contextualizing rights to the context of indigenous peoples, thereby, considering the collective aspects of these rights. For example, indigenous children have the same right to education as all other children, but their distinct languages, histories, knowledge, values and aspirations should be reflected in education programs and services (ILO, 2013). • The development of "indigenous peoples" as a serious concept in international practice has not been ushered by any general agreement or even by concurrent agreement on a process by which its significance might be established. Nonetheless, article 27 of ICCPR attempted to insinuate about it 81. However, the special historical misfortunes of indigenous peoples set them apart from minority nationalities and ethnic groups in the ordinary sense. In order to operationalize indigenous peoples' rights, the state needs to develop legal and operational criteria to identify who are the holders of such rights. However, defining who is indigenous and not, is among the complex questions which have been discussed in Bolivian context since the time of conquest and which is still not concluded. Although the normative definitions may appear clear, the operational application is highly complex and not yet fully resolved. So, as the matter of fact, there is no universal and unambiguous definition of the concept of 'indigenous peoples', however, there are various criteria by which they can be globally identified and from which each group can be characterized.

Identification of Indigenous Peoples

Three widespread approaches to deal with the issues of definition are found in texts of the United Nations, the International Labor Organisation (ILO) and the

In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.

115

World Bank. UN has not adopted any definition of indigenous peoples albeit; UN practice has to some extent been guided by a working definition in the 1986 report of UN Special Rapporteur Martinez Cobo82 to the UN Sub-Commission on the Prevention of Discrimination of Minorities (1986). The ILO Convention 169 83 does not strictly define who are indigenous and tribal peoples but rather describes the peoples it aims to protect. The World Bank84 has apportioned through criteria

"Indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing in those territories, or parts of them. They form at present nondominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems". This historical continuity may consist of the continuation, for an extended period reaching into the present, of one or more of the following factors: (a) Occupation of ancestral lands, or at least of part of them; (b) Common ancestry with the original occupants of these lands; (c) Culture in general, or in specific manifestations (such as religion, living under a tribal system, membership of an indigenous community, dress, means of livelihood, life-style, etc.); (d) Language (whether used as the only language, as mother-tongue, as the habitual means communication at home or in the family, or as the main, preferred, habitual, general or normal language); (e) Residence in certain parts of the country, or in certain regions of the world; (f) Other relevant factors. 83

art. 1(1). This Convention applies to: (a) tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations; (b) peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonization or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions. 84

The World Bank Operational Directive 4.20 states: The terms "indigenous peoples," "indigenous ethnic minorities," "tribal groups," and "scheduled tribes" describe social groups with a social and cultural identity distinct from the dominant society that makes them vulnerable to being disadvantaged in the development process. For the purposes of this directive, "indigenous peoples" is the term that will be used to refer to these groups. Indigenous peoples can be identified in particular geographical areas by the presence in varying degrees of the following characteristics: (a) a close attachment to ancestral territories and to the natural resources in these areas; (b) self-identification and identification by others as members of a distinct cultural group; (c) an indigenous language, often different from the national language; (d) presence of customary social and political institutions; and (e) primarily subsistence-oriented production.

116

based on historical continuity along with colonialism, instead taking a functional view of "indigenous peoples" as "groups with a social and cultural identity distinct from the dominant society that makes them vulnerable to being disadvantaged," an approach clearly applicable in much of Asia (Kumar, 2004). Furthermore, an approach advanced by the Chairperson of the UN Working Group on Indigenous Populations, Mme. Erica-Irene Daes,85 is widely used. â&#x20AC;˘ Indigenous communities have always been mangled with pre-colonial societies. Several governments of Asian states argue that the concept of "indigenous peoples" is immensely a by-product of the mutual experience of Western (especially European) colonial settlement as to be essentially inappropriate to those parts that did not experience substantial European influx. India has impugned the use of the term "indigenous peoples" for a particular group of people iterating that all citizens of India are indigenous, and it has used the term "Scheduled Tribe" who are area-specific (Hill, et al., 2015). In the other hand, no constitutional recognition of IPs is present except under the blanket category of "Backward Sections of Citizens" in Bangladesh. However, the constitution has recognized the rights of citizens in general, who have clear linguistic, cultural and socio-political distinctiveness from the majority Bengali people. Myanmar, like Bangladesh, has argued against any United Nations definition that would legitimate claims by particular south Asian ethnic groups to be "indigenous peoples". IPs is identified by different names such as pahari (hill people), jumma (for the tradition of jhum/jum or shifting cultivation), adivasi (original inhabitant), upajati or tribal. The reasons for this uncertainty include the number of names by which a community is known by different people, the different ways of spelling the names of the groups, the categorization of the subgroups as separate groups and the growing number of groups identifying themselves as indigenous (Roy, 2000). In the C169 Application Guide, ILO illustrates that the elements describing an indigenous people are both objective and subjective; objective elements includes: firstly, historical continuity, secondly, territorial connection, implying that their series of ancestors resides that country or region; and thirdly, distinctive and specific social, economic, cultural and political way of life, which are their own and are totally or partially retained. The subjective element correlates to collective self-identification as they belong to an indigenous group (OAS). ILO Convention 169 was revolutionary as it was the first multilateral mechanism to recognize the importance of the fundamental right of self-identification: the right of people to determine whether they belong to an indigenous or tribal people or not by

He designates certain peoples as indigenous, o because they are descendants of groups which were in the territory of the country at the time when other groups of different cultures or ethnic origins arrived there; o because of their isolation from other segments of the country's population they have preserved almost intact the customs and traditions of their ancestors which are similar to those characterized as indigenous; and o because they are, even if only formally, placed under a State structure which incorporates national, social and cultural characteristics alien to theirs, http://www.iwgia.org/culture-and-identity/identification-of-indigenous-peoples, Âś16

117

themselves.86 For instance, this criterion has been applied in a land-claims agreement between the Canadian government and the Inuit of the Northwest Territories (IWGIA). Taking ILO C169 into account, the IACHR has also accentuated it, both individually and collectively. Self-identification as belong to indigenous groups is regarded as a fundamental element in Martinéz Cobo’s working definition. It consists of two elements: the group consciousness of persons who believe they are associated to a certain indigenous group, and the group's acceptance that the respective individual is a part of their community (Lewinski). In some cases, where there has been a lack of clarity about the application of the subjective and objective criteria, the ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR) has analyzed the circumstances and provided comments to the country concerned (ILO, 2013). In certain countries, self-identifying as an indigenous group is viewed as controversial as the governments fear that recognizing some groups as indigenous would eventually result in ethnic clash or even division of the nation-state (Pro169). Notwithstanding, it is widely acknowledged that the recognition of indigenous peoples’ rights within the paradigm of states is crucial for good governance, democracy and inclusive development. In most nations around the globe, multiculturalism has been living reality. Acknowledging all groups and providing them democratic rights does not lead to conflict, but rather forestalling it (Pro169). An essential element of the sense of identity of indigenous peoples is self-identification as an indigenous and acceptance of such by the group. In Japan, self- identification is not enough to legitimize "Ainuness" in the community as most Ainu (indigenous people of Japan) have inter-married with Japanese and have migrated to diverse regions. Moreover, most Ainu parents decide not to tell their children they have Ainu ancestors in hopes of protecting the children from the social stigma, while, on the other hand, non-indigenous considered themselves as Ainu (Okada, 2012). However, the antinomy between self-identification and state recognition obscures distinctions among the situations in which problems of identification arise. Indonesia identifies IPs as "traditional legal communities" or "traditional peoples" or "remote indigenous communities". • This concept is more relevant in the Latin-American Nations. In Paraguay, the number of IPs in the country is indicated by region and by ethnic group; however, self-identification as a criterion for defining IPs had not been incorporated. Colombia applied the convention to Afro-Colombian Communities, Curbarado and Jiguamiando, who identify themselves as being tribal. Language had been the main criteria for identifying the indigenous population in Mexico and Peru (Polanco, 2018). 2.1

Indigenous Peoples in Nepal

• Nepal has constitutionally recognized indigenous peoples in the fundamental rights under the provision of right to equality not to prevent making special provisions for the protection, empowerment or upliftment of indigenous peoples (Art. 18.3 and 18.2). Art. 42 of the Constitution of Nepal, 2072, under the

art. 1.2 of the Convention “Self-identification as indigenous or tribal shall be regarded as a fundamental criterion for determining the groups to which the provisions of this Convention apply". 86

118

provision of social justice, recognized their right to participate in the State bodies based on inclusive principle. Directive principle (CON2072) ensures the right of these nationalities to live with dignity, along with their identity, and protect and promote traditional knowledge, skill, culture, social tradition and experience of the indigenous nationalities and local communities. They are also provided with quota both in federal (Art. 84.2) and state legislature (Art. 176.6) along with the establishment of the Indigenous Nationalities Commission as a constitutional body (Art. 261.1). Nepal became the first country in Asia, the second in the Asia Pacific region, and the 19th country in the world in 14 th September 2007 to ratify ILO C169. Nepal is one of the 144 countries in the world that voted for the UN Declaration on the Rights of Indigenous Peoples (UNCRIP) on 13 September 2007 at the UN General Assembly in New York. The first legislation on indigenous peoples was passed in 2002 for the establishment of the National Foundation for Development of Indigenous Nationalities (NFDIN). It was established as an independent organization working as a link between indigenous peoples and the government. It defines "indigenous nationalities87…[as] those ethnic groups or communities, who have (1) their own mother tongue and traditional customs, (2) different cultural identity, (3) distinct social structure and (4) written or oral history". The Nepal Federation of Indigenous Nationalities (NEFIN) has recognized 59 indigenous peoples in Nepal. According to the 2011 census report, the indigenous nationalities (Adivasi/Janajati) of Nepal comprise 35.81% (about 94 lakh) of the total population (26,494,504) although indigenous peoples’ organizations claim a larger figure of more than 50%. Despite making up a significant proportion of the total population throughout history, indigenous peoples have been marginalized in terms of language, culture, and political and economic opportunities. Indigenous peoples had lost ownership and control over their ancestral land because of nationalization of the forest and establishment of national parks, wildlife reserves, protected land and community forest programs (Bhattachan). Pursuant to the 1993 Forest Act, indigenous people were to be displaced from their traditional forests, which were transferred primarily to non-indigenous community forest user groups (Anaya, 2009). Protected areas constitute 20% of the total land mass in Nepal, often created at the expense of indigenous lands. A case in point is the Chitwan National Park which displaced the communities like Tharu to the park's buffer zone. The Chepangs, who are traditionally hunter-gatherers and practice a nomadic way of life in the forests, are now under threat of eviction from their traditional lands. Raji people are deprived of their access to herbal

Nepal Federation of Nationalities in 1994 defined "indigenous peoples" or "indigenous nationalities" as: "(i) those communities which possess their own distinct tradition and original lingual and cultural traditions … (ii) … who have their own history (written or oral) and historical continuity; (iii) those communities which have been displaced … and have been deprived of their traditional rights to own the natural resources (communal land known as Kipat, cultivable land, water, minerals, trading points etc.); (iv) those who have been subjugated in the State's political power set-up (decision-making process), whose ancient culture, language and religion are non-dominant and social values neglected and humiliated; (v) those whose society is traditionally erected on the principle of equality(no hierarchy) … but whose social norms and values have been slighted by the State; and (vi) those who formally or informally admit or claim to be "the indigenous peoples of Nepal" on the basis of the aforementioned characteristics”.

119

medicine, honey-gathering and fishing. Many still stand landless and have not been provided alternative means of livelihoods or compensation. In some cases indigenous peoples may have cause to feel themselves victims as much of "conservation" as of "development", when confronted, for example, with the restrictions on swidden agriculture introduced in most Southeast Asian countries, the displacement of people to make room for national parks, the blanket protection of depleted wildlife stocks, the denial of access to minor forest produce to prevent deforestation.

Lands and Territories

Indigenous peoples have a special relationship to the land and territories. In Rio Declaration of Environment and Development and Agenda 21 (1992), the special relationship between them is acknowledged. Here, the concept of land embraces the whole territory which covers the total environment of the areas (C169 art. 132). Land can also be shared among different peoples, with complementary rights within a given area including grazing lands, gathering area and forests, rivers, mountains and coastal sea, the surface as well as the sub-surface (Curthoys, et al., 2008). In Nepal, each and every indigenous group has its own way to worship land which is inextricably linked with their way of life. This relationship is also iterated in the words of UN Special Rapporteur Martinez Cobo"…for such people, the land is not merely a possession but a means of production…" (Cobo, 1986). Indigenous Peoples have a crucial role in environmental conservation and management by virtue of their traditional knowledge and practices (UNCED). In order to make full utilize of that knowledge, some Indigenous Peoples may require greater control over their land, self-administration of their resources and participation in decision making in development affecting them (UNCED Chapter 26.4). 3.1

Challenges faced by the Indigenous Peoples

Indigenous peoples around the world generally face exclusion from decisionmaking on issues that affect them; non-acknowledgement and/or non-protection of ancestral lands and resources; lack of access to indigenous culturally appropriate social services; and inadequate comprehension about their way of life and conventional economies. Even the famous 'Kumari' in Nepal, commonly known as living Goddess is imported from outside while the indigenous one remained in isolation in the place called Killagal unknown to the outer world. Indigenous peoples' marginalized position is often reflected in their limited access to justice individually as well as collectively. Not only do they have a special risk of becoming victims but they also have limited possibilities for seeking redress. They do not have the educational background or the economic means to ensure their access to justice which cause them difficulties to be familiar with national laws or the national legal system as well as the official language used in legal proceedings and they may find courts, hearing or tribunal confusing. So, measures should be taken so that they can understand about it. The problem escalate when and where indigenous persons are subjected to both indigenous peoples’ laws and state-based justice systems for the same alleged actions, they run the risk of being subject to prosecution under both legal systems. Moreover, the complication is exacerbated where the state-based system does not recognize the indigenous peoples’ system. In such cases, there should be a mechanism to strike a balance between the tribal system and the state system.

120

One of the ways to harmonize the situation is by making the tribal system paramount. Within the last 30 years, indigenous peoples have struggled both locally and internationally for recognition of their custom and customary laws. At the international level, the result has been the creation of a wide scope of international instruments and processes to safeguard the human rights of indigenous peoples. The advent of international conventions and declarations is of great significance, however, they will only be put into practice provided that the individual concerned realize about their contents and learn how to utilize them (Pro169).

Initiation taken in the International Arena

The Criminal Code in Greenland (Denmark), considered to be successful in penal system is based on the customary law of the Greenland Inuit. The code was based in indigenous Greenlandic perceptions of justice focusing notably on rehabilitation. As a result, Greenland did not have conventional prisons but rather open institutions where inmates can leave the correctional institution to work, study and perform other activities, including fishing and hunting during the day. Multicultural and pluralistic state is the example of incorporating customary laws to the national law. In General Comment No. 23, the HRC has interpreted Article 27 (Scheinin, 2005) with regard to the rights of indigenous peoples. It includes the protection of indigeous way of life connected to the control over, and use of, lands and resources ((HRC), 8 April 1994). According to Sarayaku v Ecuador, the IACtHR propounded the rule that indigenous communities must be consulted before their governments approve “any project affecting their lands” (Kichwa Indigenous People of Sarayaku v. Ecuador, IACtHR No 245 (27 June 27 2012); citing Case of the Saramake People v. Surniname, IACtHR Series C No. 172 (November 28, 2007). The ardent concept of "Free, Prior and Informed" consent emerged in this context. If it is not feasible, the right to restitution ought to be substituted by the right to just, fair and prompt compensation and also it ought to be, as far as possible, take the form of similar type of lands and territories. Here, similar means the same level of fertility that they had given away. In General Recommendation No. 23, CERD requires States Parties shall ensure that indigenous peoples have equal rights to participate in public life and that no decisions concerning them are to be taken without their free, prior and informed consent (generally called as FPIC) ((HRC), 8 April 1994). Malinowski, in his book, criticized the external interference to the indigenous society as also illustrated in the Jallikattu sport of India. If we can implement all the laws it is really possible to give justice to indigenous peoples.

Need for a regional cooperation

• SAARC region is characterized by diversified cultures, ethnic groups, religions and dialects that nurture the finest works of philosophy, arts and culture, music, dance, attire and cuisine over the centuries. The strength of SAARC lies in its diversity and harmonious coexistence. The biological, physical and cultural diversity makes SAARC the most fascinating tourist destination/zone in the world. In fact, diversity is a jewel to our common humanity (Erickson, 2017). And this diversity is inextricably linked with the indigenous people. If we can address the common problems, interests and aspirations of the indigenous peoples in South Asia (SAARC charter preamble 3) through joint action and strengthen cooperation within the respective political and economic systems which are mutually beneficial then only the motto of the SAARC

121

organization, ‘Deeper Integration for Peace and Prosperity' could be achieved as well as real justice could be provided to indigenous peoples. • Culture could assume a noteworthy part in further advancing relations and comprehension among South Asian nations and in the long run a typical character for South Asia. So, we should protect and promote indigenous as well as traditional knowledge ensuring community control over natural resources (SAARC, 2014) not only to identify best practices in production and management of art and crafts across the region and documentation for wider dissemination but also to meet the Universal Sustainable Development Goals. One method could be by establishing different working group and forum on indigenous peoples (SAARC, 2014) or by identifying new areas of cooperation on the matters related to indigenous peoples (SAARC charter art V.1.e). As a matter of fact, the countries of South Asia has not only inherited a shared past but also has a common destiny. In this light, we ought to utilize the indigenous peoples' knowledge developed in this part of the world over the span of the commencement of the Eastern civilization. Through enlightening the indigenous peoples and considering it in the mainstream development, not only indigenous peoples, but also the peoples of the whole country could be benefitted. Hence, justice could be provided not only exclusively to the indigenous peoples but also to every single individual of the entire world.

References 1. Online Etymology Dictionary. [Online] [Cited: January 27, 2017.] http://www.etymonline.com/index.php?term=indigenous. 2. (HRC), UN Human Rights Committee. 8 April 1994. CCPR General Comment No. 23: Article 27 (Rights of Minorities) . s.l. : CCPR/C/21/Rev.1/Add.5 , 8 April 1994. 3. Anaya, James. 2009. Report by the Special Rapporteur on the situation of indigenous people. s.l. : UNDOC A/HRC/12/34/ Add.3, 2009. 4. Bhattachan, Krishna B. Country Technical Notes on Indigenous Peoples’ IssuesFederal Democratic Republic of Nepal . [Online] [Cited: January 9, 2017.] https://www.ifad.org/documents/10180/332c2997-792b-4ff9-95f6-30a2db2a9ed4. 5. Cobo, Jose R. Martinez. 1986. Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities: Study on the Problem of Discrimination Against Indigenous Populations. s.l. : UN Document No.E/CN.4/Sub.2/1986/7/Add.1, 1986. 6. Curthoys, Ann, Genovese, Ann and Reilly, Alexander. 2008. Rights and Redemption. s.l. : University of New South Wales, 2008. 7. Erickson, Douglas Irvin-. 2017. Raphael Lemkin and the Cconcept of Genocide. Philadelphia, USA : University of Pennsylvania Press, 2017. 8. Garcia-Alix, Lola. ILO Convention no. 169. Seminar: Building competitiveness in green energy. The case of wind-parks in Oaxaca, Mexico 28th of May – CBS Presentation. [Online] [Cited: January 20, 2017.] http://www.slideshare.net/Competitiveness/presentation-ilo-conv. 9. Hill, Gillette and Das, Maitreyi Bordia. 2015. Researchgate. [Online] November 15, 2015. [Cited: 10 5, 2019.] https://www.researchgate.net/publication/283856196. 10. ILO. 2009. Indigenous & Tribal Peoples' Rights in Practice. Geneva : International Labour Standards Department, 2009. 11. —. 2013. Understanding the Indigenous and Tribal Peoples Convention, 1989 (No. 169) Handbook For ILO Tripartite. [Online] 2013. Constituentsilo.org/wcmsp5/groups/public/---ed_norm/---normes/documents/publication/wcms_205225.pdf. 12. IWGIA. Who are the indigenous peoples? [Online] [Cited: January 6, 2017.] http://www.iwgia.org/culture-and-identity/identification-of-indigenous-peoples.

122

13. Kumar, Sanjay. 2004. Indigenous Communities' Knowledge of Local Ecological Services. [book auth.] Dev Nathan, Govind Kelkar and Pierre Walter. Globalization and Indigenous Peoples in Asia. New Delhi : SAGE Publications, 2004. 14. Lantos, Tom. Indigenous Peoples in Asia. [Online] [Cited: January 20, 2017.] https://humanrightscommission.house.gov/events/hearings/indigenous-peoples-asia. 15. Lewinski, Silke von. Indigenous Heritage and Intellectual Property, Genetic Resources, Traditional Knowledge and folklor. 16. OAS. Indigenous and Tribal Peoples' Rights over their ancestral lands and natural resources. Inter- American Commission on Human Rights. [Online] [Cited: January 30, 30.] http://cidh.org/countryrep/Indigenous-Lands09/Chap.III-IV.htm. 17. Okada, Mitsuharu Vincent. 2012. The Plight of Ainu, Indigenous People of Japan. s.l. : Journal of Indigenous Social Development, 2012. 18. Polanco, Hector Diaz. 2018. Indigenous Peoples in Latin America. New York : Routledge, 2018. 19. Pro169. PRO 169. Identification. [Online] [Cited: January 25, 2017.] http://pro169.org/identification/. 20. Roy, Rajkumari Chandra Kalindi. 2000. Land Rights of the Indigenous Peoples of the Chittagong Hill Tracts, Bangladesh. Copenhagen : IXGIA Document No. 99, 2000. 21. SAARC, People's. 2014. People's SAARC. People's SAARC- Declaration. [Online] November 24, 2014. [Cited: January 27, 2017.] http://www.forum-asia.org/uploads/statements/2014/November/PSAARC%202014%20Declaration%20(PDF).pdf. 22. Scheinin, Martin. 2005. Indigenous Peoples' Rights under the International Covenant on Civil and Political Rights. [book auth.] Joshua Castellino and Niamh Walsh. Internaitonal law and Indigenous Peoples. Leiden, The Netherlands : Martinus Nijhoff Publishers, 2005.

123

Universalism versus Relativism - Legacy of Empire and Potential for Change Sulekha Agarwal The Graduate Institute, Geneva (IHEID), Switzerland sulekha.agarwal@graduateinstitute.ch

Abstract. Proliferation of global human rights protection was, in part a reaction to the egregious rights violations during the Second World War, the likes of which had not been consciously witnessed in continental Europe since the establishment of the Westphalian myth. It was thus a reaction to a very specific set of circumstances in a very limited context. In what is largely referred to as the Global South, the experience and understanding of such violations were very different given their colonial experience. Countries decolonized after the Second World War were given a very specific structure to adopt, as a precondition to membership of the “New World Order” that had evolved from a very different context. This also meant the adoption of an arguably exclusionary form of international law that had in essence developed to ensure exclusion. It is therefore unsurprising that human rights treaties, which are based on this version of international law, when applied in the Global South have resulted in a strange and unsatisfactory application vis a vis the Global North that does not face the same confusion created by international law’s imperial origins. The necessity of the goals that the human rights regime seeks to attain is indisputable. However, there is a need to revise the approach in which these goals are to be achieved. The paper analyses the need for acknowledgment of specific contexts of the Global South and adaption or reconstruction of the present regime to these contexts for effective realization of Human Rights Law globally. The suggestion is a ‘goal-oriented’ approach that accommodates diversity rather than the existing ‘process-oriented’ approach. The paper uses the existing structure as a skeletal framework to which different backgrounds and subjectivities can be added, including diverse methodology such as ethnography towards promoting inclusiveness. Keywords: Imperialism, Inclusion, Global South, Diversity, Methodology.

Introduction

Like most things important in life, it is quite difficult to concretely state what human rights are. To most it seems like the good thing to do,88 making those who “do” it popular while leaving those who question the fiction for infamy. Samuel Moyn couldn’t have better described it calling it the ‘drama of human rights’ 89

As John Tasioulas notes: ‘…discourse of human rights [has acquired] in recent times ... the status of an ethical lingua franca’. Raz, “Human Rights Without Foundations”. 89 Moyn, “The Last Utopia”. 88

124

However, in reality Human Rights seem to pose more problems than it does solutions. Despite near universal ratification of the International Bill of Rights and other Human Rights Conventions, there is no tangible improvement visible in the field with news media outlets reporting stories of violations en masse. Ratifications to Human Rights Conventions are often used as a political tool90 rather than as a show of any real commitment. The Universal Declaration of Human Rights, for example, has been used as a ply to rope in the most “undemocratic nations” allowing nations to become participants of a global regime with minimal or no practical application. 91 At the same time, the apparent champion of Human Rights and Civil Liberties, the United States, is always hesitant to ratify any international instrument of such nature. In fact, a lot of its legitimacy for the case of Human Rights has been lost due to scandal surrounding the American war on terror that led to blatant exceptionalism92 and creation of spaces free of such guarantees.93 Moreover, it has raised new points of contention, which are more cultural than economic, between Western and non-Western cultures and have convinced some Westerners of the need to see their own culture prevail, under threat from other civilizations or the new ‘barbarians’. 94 The “Realpolitik” of it has been taken as a given without much thought being spent on why the Realpolitik need be present at all and what may be done to keep it at bay. Since the Human Rights conception generally is of a highly moralistic and a do no wrong order, it is inevitable that some would read such instances as its complete failure of the system. But this is just a surface level observation of symptoms of problems that are far more deeply rooted which is to do with the International Law Regime within which it is embedded95 and the problem of a misleading narrative. To make this apparent, the paper will first present a general theorization on the reactionary tendencies of International law and its consequences for the Human Rights regime thereafter, which, it will situate, this work within Critical Human rights. The paper will use the universal versus relativist debate to reveal aspects that have been blindsided by critical approaches. While it does so, the intention is not an attempt to address these problems, rather to present the existing narrative and critique to show what has been ignored. Following that an expanded relativist narrative will be provided, which by no means an exhaustive list and show how they have to an extent been recognized by the international Human Rights mechanisms. Following this expansion, the paper will show how anthropological and ethnographic approaches are well equipped to address these unacknowledged complexities and also suggests a goal based approach rather

Human Rights Conventions are often ratified to gain international legitimacy in order to attract investments. Further, as Moravcsik shows in his study, agreement to these norms in case of newly emerging democracies is to lock in future commitment and to prevent future uncertain behavior of the State. In such cases Human rights thus eventually end up serving State interests. Moravcsik, “The Origins of Human Rights Regimes”, 217–52. 91 Engle, “Universal Human Rights”. 92 A reaction to this includes withdrawal of some African states from the International Criminal Court on grounds that it focused it attention only on the African subcontinent whilst ignoring the role of others such as the United States in intervention wars. 93 Saito, “Meeting the Enemy”. 94 Tourme-Jouannet, “Law and Cultural Diversity”, 125–39. 95 Address fragmentation claims if required, later

125

than a process based approach to incorporate the nuances towards developing an effective mechanism in the face of critique. While this paper uses the relativist side of the debate to state its aims, it is not uncritical of relativism, quite the opposite. Neither does it deny the Universalist aspirations. Rather it advocates for an expanded relativism inclusive of alternate methodologies towards the fulfillment of universal aspirations. The reason why relativist side is chosen is not necessarily because it wins the debate but because it has not been thoroughly explored and leaves more room for incorporating alternate approaches. Towards this point, in his Mark Goodale 96 cites what MarieBénédicte Dembour calls the “footnote 10 phenomenon” where she draws from, a “book from a leading law publisher which contained almost 800 pages of text and materials on international human rights” included only one reference to relativism, which it tucked into a “seven-line footnote” with the excuse that it was “an issue of such depth that it falls beyond the scope of this work/” As she goes on to explain, “With this acknowledgment, the book is written as if universality of the human rights provisions it reproduces raises no issues whatsoever. This is consistent with the dominant attitude in the field.”97 Indeed, it is precisely at that moment when academics are declaring the problem of relativism obsolete, marginal to real issues, or logically absurd that we can be assured that the problem is most current, central, and intellectually challenging, and thus most in need of the attention of a wider range of critical voices.98 The aim of the paper is not to present the narrative or the approach but to engage in an exercise of reflexive thinking and consider multiple possibilities and expand our imaginations which is necessary for the benefit of a subject that holds within in itself such great diversity at all levels.

Goodale, “Encountering Relativism”. Ibid. 98 Ibid. 96 97

Theorization

International law is reactive by nature, responding solely to the “crisis” in hand.99 This has important consequences for the way in which regimes develop. First, the crisis model is problematic because it takes a given set of facts as uncontroversial100 when in reality histories tend to be so much more nuanced. This leads to the framing of narratives and their understanding in absolute terms, which in turn cause the creation of certain stereotypes that through continuous usage normalize themselves thereby facilitating a degree of ahistoricism. 101 Second, it prevents a holistic appreciation of the problem and the questioning of basic presumptions. Considering that a single idea endures a series of crises, its elements continue to be altered with every subsequent crisis that it is involved in resolving. While in the process the principle is altered by the changed assumptions that every new crisis brings with it, this change of assumptions and context is not factored in, either for political reasons or due to innocent blindsiding. Thus, a newly altered principle is still assessed according to the assumptions that existed at the time of its first employment. As a result, at any given point there is a disconnection between the most recent version of an idea and the assumptions that it was based upon. Third, this crisis-based tendency leads to concerted focus on the means employed and not the overall end that is to be achieved. Furthermore, in this process of endless renaissance, the original aim behind the regime’s formulation is often lost resulting in a collage of disconnected ideas housed under a common identity. And finally, to bring to naught are the ever-present vested economic interests that only further complicate matters. A combination of these tendencies result in foundational regimes, ideas and principles that have at once multiple meanings and no meaning at all which deprives it of the very certainty which law is supposed to bring. Naturally, this results in a regime that does not understand itself and confounds the ends that it stands for. It does not fully understand the past and its vision of the future is often myopic. What is further problematic is not that the resulting product is far from achieving its initial overall aim but that it leads to consequences that it did not envisage. Thus, it has no solution for the problems that so arise and the impact of such situations are often diametrically opposite to the aim with which the regime had started out. The International Human Rights Regime through its embedding in International Law, seems to have inherited all of these aspects. The popular narrative of its emergence at is basic best is that of a global postwar Holocaust consciousness, the establishment of the United Nations to prevent any such future atrocity and the immediate acceptance of Universal Human Rights. Yet, several such atrocities

Charlesworth, “International Law: A Discipline of Crisis”, 377–92. Ibid. 101 Mickelson, “South, North, International Environmental Law, and International Environmental Lawyers”, 52–81. 99

100

127

have taken place since,102 exposing the international community’s meager ability to deal with the same that have had many questioning its efficacy and legitimacy. There is much critical work to be done within human rights, which is often avoided, and is attempted here. But before that a word on Critical Human Rights under which this paper is intended to be placed. As the expression suggests, Critical Human Rights is not a project of hostility to human rights but a project that is, at the basic level, prudent and even skeptical about some claims made relating to international human rights. Perhaps the best way to describe that attitude is as agnostic about human rights, although broadly committed to the broad pursuit of some of the ideals that underscore them.103 Despite its spectacular failures, it still cannot be said that these values, which at its very basis stand for respect of human life and dignity, are fictitious or irrelevant. Yet, they seem to be in short supply despite the existence of the mechanism that must ensure it. The reason behind this is that the narrative that we have been presented with is incomplete and misleading with crucial bits of the story completely erased resulting in the present confusion. In words of Samuel Moyn “If human rights are treated as inborn, or long in preparation, people will not confront the true reasons they have become so powerful today and examine whether those reasons are still persuasive.” 104 It is crucial that the narrative be understood in its entirety because unless gaps are pointed out they cannot be filled which is why the narrative is challenged and emphasized through this paper. Human rights of all disciplines does not have a linear history of growth. In fact, human rights entered history as a throwaway line, not a well-considered idea.105 Just because the variables in the current narrative add up to a convincing story, does not necessarily mean that there was a linear effort towards developing the same nor that such a development was inevitable or did not have the possibility of taking another trajectory. Human Rights and responses to Human Rights are a massive conglomeration of infinite variables, whether identified or not. This is not to state that narrative that will presented in this paper is complete and the certain truth, since there are as many reconstructions of histories possible as there are pens. That is also not saying that all are either wrong or right, rather that the truth/actual happening lies somehwere in between. One of the difficulties in developing a coherent and robust critique of International Human Rights as a project is its richness. In the words of Mégret, the discourse of rights dramatizes oppositions; rights are either violated or respected

102

Examples include Genocides in Rwanda, Bosnia, the ongoing plight of Syrians caused by the civil war, the expulsion of Rohingyas from Myanmar to name a few. 103 Mégret, “Where Does the Critique of International Human Rights Stand?”, 3–40. 104 Moyn, “The Last Utopia”. 105 Ibid.

128

through strident moralization of political discourse, in a way that makes necessary political compromises more improbable. 106 The law can set up a veil between us and the norms, encouraging us to believe that if we produce ‘‘valid’’ law then we also achieve just outcomes. Keeping the critical approach in mind this paper will explore how the movement has structured itself over time; how its existence as a movement is somehow a reality onto itself that must be understood sociologically; and how the politics of human rights expertise also have hegemonic connotations. It aims to address issues that are often ignored or deemed political at both ends of the apologist or utopian scale. While the common Universalist narrative aspires for universally shared values, arguments against universality include claims that no universal values exist (postmodernism), human rights represent western values (cultural relativism) or human rights are a form of cultural imperialism with the latter two being the dominant grounds of critique. In response to the same, there are a fair number of published works that state that these arguments are not entirely true because human rights draw on a common shared trait of human rationality and humanity. While these counter arguments bear some merit, they do not acknowledge the uneven results caused by an uneven geography107 that is a direct result of the Empire108 that seldom merits attention in the dominant narrative. Acknowledging the role of the same is a bit disconcerting because the Human rights regime, according to the general narrative must transcend the Empire. While this may seem to lean in favour of the relativists, it is however, at the same time difficult to altogether dismiss Universalist claims including Donnelly’s Universal relativism. 109 In the literature that was reviewed for the construction of this paper, one of the bigger challengers to the idea of Universality was that of “Asian Values” where some authors included States based on “Confucian values” in the group without acknowledging the diversity within,110 others acknowledged it but restricted the identification to geography and others who inevitably lumped in the “other” in

Mégret, “Where Does the Critique of International Human Rights Stand?”, 3–40. 107 Not only were these geographies altered by colonization, after decolonization they were pushed in for adoption of the standard rule of law, at the cost of any original system that had existed previously, creating a strange system and resulting in all sorts of anomalies. 108 Anghie, “Imperialism, Sovereignty and the Making of International Law”, 254–69. 109 Donnelly, “The Relative Universality of Human Rights”, 281–306. 110 “The temptation to see Asia as one unit reveals, in fact, a distinctly Eurocentric perspective. Indeed, the term “the Orient” which was widely used for a long time to mean essentially what Asia means today, referred to the direction of the rising sun. It requires a heroic generalization to see such a large group of people in terms of the positional view from the European side of the Bosporus.” Sen, “Human Rights and Asian Values”. 106

129

opposition to a singular conception of the so called “west” into the group.111 What became clear was the fact that a large part of the relativism opposition was merely reactionary to resist a force namely “cultural imperialism”, that was recognized as alien. The consequence was to swing to the opposite end of relativism, without much confirmed ideation of what it was constituted. Resultantly, it has been argued that this approach has enabled some Asian states to justify anti-democratic regimes and to protect unpleasant human rights practices. Some critics thus state that the so-called Asian perspective is in fact the voice of authoritarian governments using the discourse of culture to reinforce their own authority. 112 In the swing of the pendulum between these opposite extreme ends, both universalism and relativism reveal a lot of hidden yet important facets. 113 First, is that in arguments from both sides, terms such as morality, religion, ethics etc. are thrown around and used interchangeably. Most arguments for relativism are based on cultural relativism but culture itself is not paid much attention to as an idea and its relation to and separation from religion is not established. Second, apart from the inherited imperialism, what does not get addressed is that colonization modified spaces. This means that while the traditional values were not given space to develop, in the colonization and decolonization process a new culture was created, some of which could easily adapt to the larger hegemonic structure (in terms of its elements and not in terms of subjugating itself to the power dynamics.) At the same time this modification is not complete and is not specifically situated geographically and it is in dealing with this unmodified half where other methodologies such as ethnographic studies become relevant. Third, traditional values have been intentionally or unintentionally misinterpreted,114 and the fact that they may not be capable of complete application in the

111

Amartya Sen distinguishes between East Asian and south Asian values. He points out that in south Asia there exists a tradition of respect for tolerance, whereas East Asian society is mainly based on Confucianism that advocates the significance of society over the individual. Sen argues that unlike ancient India, in China (and in East Asian societies that have been influenced by Chinese civilization, such as Japan and Korea) the political order presides in principle over every area of socio-political life. Further, so-called Asian values are based on Confucianism, and do not represent the region’s rich, diverse religions and cultures. They are also neither static nor monolithic, but rather changeable and adaptive to real conditions of life. Hoang, “The Asian Values Perspective of Human Rights”. 112 Hoang, “The Asian Values Perspective of Human Rights”. 113 For example, in the Asian values debate, human rights became wrapped up in the discourse of the East expressing a general hostility to liberalism. In this strange way, liberalism that apparently champions human rights became a roadblock towards a universal realization of Human Rights. 114 There is also the aspect that a lot of misinterpretation of the Asian values occurs because they are perceived through a liberal lens. For example, the notion

130

modified spaces is not recognized. Fourth, the role of scholars and methodology in the development of the discourse merits serious consideration. A lot of Asian scholars tend to look at Asian Values from a liberalist lens and as a consequence see them as falling short. Fifth, all of the discourse executes itself on the backdrop of geo-politics, democracy, economics and liberalism, factors that are usually just paid a lip service to. Finally, in the “culture” of human rights whether hegemonic or postcolonial, the problem is that someone else decides what is good for the majority leading to a loss of voice. Cultural relativism as seen in application in Asia can thus be perceived as a cry from the formerly colonized to claim their own voice since the “other” cultures were not given a voice during the formulation of the regime and cultural histories played but a minor part. The backlash was thus not a result of cultural difference but denial of culture in the formulation process. 115 The following section will provide the current narrative through Relativist critique, Universalist response to it and fill in holes in the narrative to show the extent to which critical work has been engaged towards showing how much these above-mentioned aspects are yet to be brought into the critical imagination.

Deconstructing histories and narratives

3.1

Westphalia, Natural Rights and Christianity- The Relativist Critique

According to the contemporary cliché, human rights have become a secular religion: an object of faith, a basis for hope and a code of morality we can all accept, whatever other systems of belief we may cherish or reject. At the least, it is hard to escape the impression that human rights have become an ethical shibboleth or test of right, indeed of righteousness.116 It seems self-evident that human rights are both real and good, and that their absence essentially denotes intolerable

of family before the individual is seen as being limiting of individual rights without considering the possibility that putting family before self can be an individual choice and further there may also be a lot to learn from such values at a time where problems of the environment require community based solutions. 115 The present regime allows you to do what it prohibits, in order to further what it prohibits, evident in cases of intervention. A strong sense of the other is present in the discourse -the protector and the protected, what needs to be protected and who decides what must be protected. In the end it is always the former imperialists who have the upper hand because of the inherent imbalance in the system. Hence, power continues to be exerted even through the Human Rights Mechanisms, which are ideally supposed to be there to level the playing field. 116 Marks, “Human Rights in Disastrous Times”.

131

human suffering. And, as this absence was the usual state of affairs, the need to ‘do’ human rights seemed never to diminish, with the challenge being so immense that it seemed capricious to engage in petty arguments on relativism or cultural imperialism.117 The common narrative states that the Second World War exposed the failure of the Westphalian system in maintaining peace and security. The resulting Nuremberg and other International Military Tribunals broke from the Westphalian model and after centuries of distortion, misinterpretation and reinterpretation 118 natural law that had earlier facilitated colonialism made a comeback,119 in a very positive light under which the war crimes were prosecuted. This revival of natural law was problematic as it was done without due consideration of its past. The founding natural rights figures were, anything but humanitarians; on theoretical principle, they endorsed an austere doctrine that refused an expansive list of basic entitlements.120 Further, any discussion of human rights cannot avoid admitting that on a most fundamental level the respect for universal human rights and human dignity has to be seen as deriving from the biblical tradition, common to the three Abrahamic faiths. 121 It is the secularization of the idea that human beings were created in God's image that led to the development of the ideas of human rights and their universal application.122 Beyond this metaphysical foundation of human rights in the tradition that all human beings were created in God's image, there is another ingredient hailing from a specific Christian tradition, which contributed, conceptually and institutionally, to the anchoring of human rights in the modern polity: it is the tension between state and church and the institutional apartness of the

Hoffmann, “Human Rights, the Self and the Other”. The concept of “natural rights” did not come out of nowhere. When Hobbes first referred to the right of nature, he used the same word ius that once referred to the law of nature. This earlier doctrine, which arose from a combination of Stoic universalism and Christian values, had its heyday in the medieval period; its most famous version is found in St. Thomas Aquinas’s thought. Williams, “Problems in Materialism and Culture”. 119 Natural law has a troublesome history, having evolved in specifically western contexts and acting as a facilitator of colonialism and imperialism. Ibid. 120 In many ways, the history of natural rights, like that of the rights of man after, is the history of the very state that “human rights” would later attempt to transcend. 121 Avineri, “The Paradox of Religion and the Universality of Human Rights”, 317–26. 122 The stress on the biblical tradition in the case of universal human rights not for reasons of making a religious argument, but for the sake of historical accuracy. 117

118

132

two.123 Western leaders acknowledged this grounding in Christianity. On 19 September 1946, Sir Winston Churchill gave a speech at Zurich University: “I wish to speak to you today about the tragedy of Europe. This noble continent...is the home of all the great parent races of the western world. It is the fountain of Christian faith and Christian ethics. It is the origin of most of the culture, the arts, philosophy and science both of ancient and modern time. If Europe were once united in the sharing of its common inheritance, there would be no limit to the happiness, to the prosperity and the glory, which its three or four million people would enjoy.” 124 This grounding is evident in the way the European Convention of Human Rights fits in with the Universal Declaration in its application owing to its commonality in Christian origins. Even in the literature on International Human Rights, most of the cases referred to are European.125 Further, various treaty bodies within the United Nations’ Human Rights Mechanism often can successfully deal with cases where the state party is largely European, somewhere in an attempt to establish the success of these committees that are largely funded by these countries, leading to the enforcement of a mutually reinforcing mechanism. There isn’t much effort to explore why other countries, at least the openly democratic ones like India are not being able to ensure more than a hortatory enforcement of these global ideals outside the realpolitik. While it cannot be said that Christianity has nothing in common with other non-Abrahamic faiths, the supremacy over other faiths in the international human rights regime is evident. Christianity’s complicity in both colonization and human rights means that the civilizing mission continues on.126 The colonial moment will not go away that easily because it helped forge some of the very basic concepts of international law and human rights. In particular, the claim that human rights

123

While Christian interpretations of human rights were impressively prominent throughout their minor wartime circulation, the increasing Christianization of human rights after World War II is perhaps the most important one. It helps make sense of why, of all places in the world, they gained their only postwar foothold in West European restabilization. Moyn, “The Last Utopia”. 124 Chen, “Asia Values? Why Not, But How”, 41–61. 125 It is rather comical how the literature that claims human rights to be universal ironically runs back to western scholars to prove their points. 126 As Mégret explains, “Makau Mutua has framed this in terms of a ‘‘savagesvictims-saviors’’ metaphor. Female genital mutilation is presented as the most abhorrent of practices, for example, but the West’s own long tradition of subjugating the female body, be it in informal and subtle ways, is neglected… the Middle-Eastern terrorist is presented as nihilist whilst the Western response is presented as political. Human rights law continues to be part of the ‘‘standard of civilization’’, albeit in more subtle ways.” Mégret, “Where Does the Critique of International Human Rights Stand?”, 3–40.

133

is new to international law and transformative of it and therefore does not come with the baggage associated with the emergence of international law is a point that is remarkably misleading.127

3.2

The Universalist Mistake

The view that the basic ideas underlying freedom and rights in a tolerant society are “Western” notions has been championed by both Asian authoritarians and Western chauvinists. 128 However, while the strong defence of Universalism comes in from the west, at the same time they have a tendency to assume that freedom and democracy as a fundamental and ancient feature of Western culture are not to be easily found in Asia. Western promoters of personal and political liberty in the non-Western world often see this as bringing Western alues to Asia and Africa. This is, however, untrue on both levels as both the elements were very much a consequence of evolution in the west, not something inherent as presupposed. As Bielefeldt argues that human rights are not natural components of European culture. In fact, the legitimacy of human rights was first justified only in modern times. In Europe, it took a long time to learn how human rights can be realized in the political system so as to protect individuals from oppression and is still an ongoing learning process. 129 One of the arguments posed by the Western scholars is that non-western cultures could not accommodate or be a source of the so-called liberal values. However, this is far from the truth. These features were in fact found in ancient nonwestern societies in the context in which they existed. For example, Emperor Akbar was making pronouncements on religious tolerance when the Inquisition was in high gear in Europe. Further, Confucian family values are not essentially opposed to liberalism as claimed by Max Weber. 130 Elias Elias Canetti has pointed out in understanding the teachings of Confucius, we have to examine not only what he says, but also what he does not say as modern austere interpreters in their tendency to assume that what is not explicitly supported must be implicitly forbidden. In interpreting the Asian cultural choice of family over the individual, the assumption is that such a choice is not individual.131

127

As Tony Anghie has argued, cardinal concepts of international law did not pre-exist the colonial encounter as readymade rules to be applied to new problems; rather, they were given their specific meaning through the colonial encounter. Mégret, “Where Does the Critique of International Human Rights Stand?”, 3–40. 128 Sen, “Human Rights and Asian Values”. 129 Chen, “Asia Values? Why Not, But How”, 41–61. 130 Charvet and Nay, “Liberalism and Non-Western Cultures”, 318–49. 131 Some scholars have also argued that Confucianism’s emphasis on duties rather than rights in general, means that its role in the modern development of human rights theory is highly significant. The overemphasis on rights has made it

134

In his interview with Fareed Zakaria132 former Prime Minister of Singapore Lee Kuan Yew emphasized how Western Conception depends on the state for individual reliance whereas Eastern Cultures depend on self-reliance. This view is more progressive and supportive of Human Rights which rather than looking for support in the State which experience states has not been effective on a global scale and is in a way more empowering as it brings an individual out of the State structure. Further, he also reflected the understanding towards a culturally sensitive methodology managing between State needs as well as personal freedoms133 advocating for a gradual approach that have bearing for diverse and developing societies; “If you pressure cook you are in for problems. If you go gently, but steadily, the logic of events will bring about not assimilation, but integration.”134

3.3

Missing parts

The previous two sections highlighted the common claims against Universalism in Human Rights and how Universalism, strongly defended by Western scholars falls short of understanding the value of other cultures towards the Human Rights project. However, this is just a minuscule part of the error as it is based on the existing narrative. This section will present what has been omitted from the narrative and should have been included. In the words of Susan Marks, “If the story of the international protection of human rights has been conventionally told as a romance, there is, at present, a significant body of opinion that invites us to reimagine it in the register of tragedy.” 135 The tangled history of how the political values today protected as “human rights” arose shows they bear no essential relationship either to each other or to the universalistic belief that all men (and, more recently, women) are part of the same group. Further, rather than originating all at once as a set and then merely awaiting later internationalization, the history of the core values subject to protection by rights is one of construction rather than discovery and contingency rather than necessity. The central conclusion would have to be that rereading

necessary to build a rights- based virtue theory or a virtue-based rights theory. As Chan suggests, “...a theory of rights is not capable of standing on its own. A culture based on Confucianism instills in people such virtues as filial piety, fraternal love, loyalty, and sincerity, and reminds them that rights are only a last resort for protecting their interests.” 132 Zakaria, “Culture Is Destiny: A Conversation with Lee Kuan Yew.” 109. 133 “What are we all seeking? A form of government that will be comfortable, because it meets our needs, is not oppressive, and maximizes our opportunities. And whether you have one-man, one-vote or some-men, one vote or other men, two votes, those are forms which should be worked out.” Ibid. 134

Ibid.

135

Marks, “Human Rights in Disastrous Times”.

135

Second World War and its aftermath as the essential source of human rights as they are now understood is misleading, however tempting. Contrary to conventional assumptions, there was no widespread Holocaust consciousness in the postwar era, so human rights could not have been a response to it.136 Further, the colonized part of the world bore little consideration in the imagination of the drafter’s of so-called universal values. During the drafting of the Universal Declaration, the Belgian representative stated that human rights rules “presupposed a high degree of civilization, [and] were often incompatible with the ideas of peoples who had not yet reached a high degree of development. By imposing those rules on them at once, one ran the risk of destroying the very basis of their society.”137 This is misleading as the pivotal event in the normalizing the use of human rights however was the decolonization movement where the right to self-determination was couched as a human right, not so much as to promote human rights in the terms it is understood today but within a limited understanding of territory and sovereignty. It was self-determination and not achievement of so called human rights that were the aim. Human rights thus turned out to be a substitute for what many around the world wanted, a collective entitlement to self-determination.138 Further, it was the deprived, the ones who were not conceived worthy of such rights that put these rights into action- rights then become synonymous to that which must be mobilized to achieve those ends that have been denied. A true historical reading of the role played by the international human rights in anti-imperial struggles thus reveals several uncomfortable facts. First, the Universal Declaration did not apply directly to the colonial areas. Second, anti-colonial struggles were hardly ever taken up for scrutiny at the UN Commission on Human Rights before Third World states came on board in 1967. Third, anti-colonial nationalist revolts in Kenya and Malaya were characterized by the British as ‘emergencies’, to be dealt with as law and order issues, avoiding the application of human rights. Finally very little of the mainstream human rights scholarship

136

The ideological ascendancy of human rights in living memory came out of a combination of separate histories that interacted in an unforeseeable explosion. It is not at all obvious that, at the time, Nuremberg and related legal innovations like the genocide convention were conceived as part of the same enterprise as the itemization of human rights, let alone falling under their umbrella—though they are now often treated as if they were a single if multifaceted achievement. Moyn, “The Last Utopia”. 137 While René Cassin and Eleanor Roosevelt—icons of the human rights moment at the early United Nations—agreed, speaking as they normally did for the French and American governments, this proposal to keep the applicability of human rights law out of empires did not carry the day. Ibid. 138 Ibid.

136

acknowledges that human rights discourse was influenced in any significant way by anti-colonial struggles after the Second World War.139 When decolonization resulted in enough new states to matter at the United Nations, the phrase “human rights” itself came to be incorporated in the master principle of collective self-determination. As the agent of the greatest dissemination of sovereignty in world history, not of its qualification, anticolonialism’s lesson for the history of human rights is not about the growing relevance of the concept across the postwar era. It is about the ideological conditions in which human rights in their contemporary connotations became a plausible doctrine after the mid-1970s.140 For an issue that is so central to the United Nations’ mission, human rights have still has rarely been at the cutting edge of its agenda. The World Conference on Human Rights in Vienna in 1993 was the first intergovernmental conference on human rights in twenty-five years since Teheran in 1968. Despite the role played by the decolonization movement in the mobilization of human rights, the battle with stringent western notions continued. The four preparatory conferences uncovered roadblocks over procedure that reflected deeper differences on substance. The draft document for Vienna was riddled with contested language on such issues as “universality,” and “conditionality.” A community of values remained elusive and Western conceptions of human rights broadly prevailed, despite a clear fault line between the OECD democracies and a group of Asian and Islamic states. The final text describes the “universal nature” of all human rights as being “beyond question.” And it recognizes “democracy, development and respect for human rights" as "interdependent and mutually reinforcing.”141 In a significant victory over the views of some Asian states though, the Vienna Declaration affirms that “the lack of development may not be invoked to justify the abridgement of internationally recognized human rights.” They also succeeded in ensuring that the Vienna Declaration qualified universality by reconciling it with national cultures: “The significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind.” Finally, the Vienna Declaration “reiterates the need to consider the possibility of establishing regional and sub-regional arrangements for the promotion and protection of human rights where they do not already.”142

Rajagopal, “Counter-Hegemonic International Law”, 767–83. Ibid. 141 Ibid. 142 This is a reference to Asia, the only region without an intergovernmental human rights mechanism. Asian NCOS, however, see this project as a doubleedged sword, since Asian states could co-opt such machinery to reinforce "cultural particularities" and undermine the reach of "universal" human rights. Gillies, “Between Ethics and Interests”, 257–80. 139 140

137

Given the overall contribution of the “other” in the development of human rights, as it stands today, the Western argument that Human Rights are non-compatible in non-western settings falls short. Basil Fernando, the Executive Director of the Asian Human Rights Commission, understood this when he said: “No one loves freedom more than those who were once denied it, and this is also true of human rights.... To say that human rights are not part of Asian culture contradicts everything I have seen and heard in all parts of Asia.” 143

New Relativism, Anthropological approaches and Ethnographies

4.1

3.1 Expanding the scope of relativism

Notwithstanding the critique against relativism and political deployment in certain contexts, it is evident that it raises a number of relevant critiques. However, at the same time it falls short in highlighting shortcomings that were mentioned earlier and even falls victim to some of them. One of the reasons why relativism in its current tone fails to put up a coherent argument is its reactionary nature to universalism that pays little attention to form and content and while there are many legitimate claims that can be raised under this banner, that does not appear to be the intention always, which seems to be set on the mere fact of opposition for oppositions sake. Further, there is a diversity of relativist’s backgrounds so it might be difficult and counterproductive to go in search of a single relativist argument. The current approach of relativists has been to provide critique predominantly based on culture. The understanding of Relativism however needs to be expanded and can be conceived in ways that could include the following •

The present regime of human rights is based on a very strong binary conception of right and wrong and the wrongs can be deemed right only under certain exceptional circumstances. However, situations are seldom that clear in scope and an appropriate way to deal with would be to make it very specific to a circumstance. Relativism in this sense should then take on the conception relative to a situation.

•

There must also be an acknowledgement that cultural beliefs and practices are prone to change and are not set in stone. This variant of relativism would respond to the question of relative to what understanding.

•

Relativism is possible even within the same geographical space. The Third world is no longer a geographical definition and as mentioned earlier, there

143

Chen, “Asia Values? Why Not, But How”, 41–61.

138

exist spaces both modified and un-modified by colonization and decolonization that would require a range of cultural variants and hence relativism in such cases would be relative to the space •

Interestingly, in its refusals to ratify critical human rights instruments that block major steps directed at effective universal enforcement of standards, 144 authors suggest that the formally universalist positions of the United States are, in many respects, culturally and politically relativist. Recent US opposition to the International Criminal Court and withdrawal from the Human Rights Council have reinforced perceptions of America’s relativism and helped to clarify the idea that support for pluralism is not only a product of authoritarianism, religious fundamentalism, and tradition. Some of the orientations and patterns that support this resistance to universalism are core aspects of American culture, democracy, and constitutionalism. 145

The relativist imagination must thus be broadened if its case and the achievement of Human Rights’ goals are to be of any real value. This idea has, in fact, been appreciated by the United Nations’ Human Rights Committee in its work. An incremental approach is embraced by the Committee with a view to reconciling the ideal of universalism with the pragmatic need to avoid the backlash, which may ensue from attempts to enforce universal norms that require a change of deeply embedded cultural practices, and speaks in favour of relativism. 146 For example, in implementation of the relevant universal norm against polygamy, the Committee called on the relevant State to take gradual measures in the right direction, while maintaining the ultimate goal of abolishing the practice altogether. This approach amounts, in effect, to acceptance of the role of cultural and political constraints in determining the timeline for implementing universal norms.147 It is easy to say that a lot of “wrong” is done in non-western societies that are incompatible with the notion of human rights.148 However the question

144

The United States worked assiduously to avoid binding international obligations concerning the right to development in 1986 and opposed the Charter of Economic Rights and Duties of States passed by the General Assembly in 1975. It has also refused to ratify most ILO labour rights conventions, as well as such global and regional instruments central to comprehensive (and even core) approaches to universalism, such as the ICESCR, the global conventions on the rights of the child and discrimination against women, and the American Convention on Human Rights. 145 Siegel , “Universalism and Cultural Relativism”. 146 When engaging with States in the course of reviewing their periodic reports about the implementation of the Covenant, the Committee has sometimes formulated its criticism and recommendations in a manner that allow states to move gradually towards full compliance with the Covenant. 147 Shany, “The Universality of Human Right”. 148 Examples include female genital mutilation, child marriage, non participation of women in public life, it is also not as if they do not exist at all in the west

139

we need to ask is how did they start in order to be able acknowledge their origins and remove conditions that are no longer compatible. But just to say that the existence of such practices in the society prove that, that particular society is incapable of holding ideas that could be akin to human rights is too simplistic and stinks of egoism.149 What Donnelly and others human rights theorists want us to take seriously therefore are in effect cultural differences, not relativity as they state. 150 This assumption is challenged to an extent by the working concept of culture, which contends that there are possibly competing or conflicting standards in a culture and a culture is likely interconnected to other cultures. Further, some members of a culture may have multiple memberships in other cultures. And certain standards may have been developed and socially transmitted in more than one culture. 151 Cultures have porous and shifting boundaries and they are interpenetrable, internally heterogeneous, and changing over time. While this is an improvement on the current approach, it is certainly not enough This is where anthropology and ethnographic studies become relevant. 4.2

Anthropological approaches, Ethnographies and relativism

Human rights are not just abstract values, but a set of particular social practices to realize those values. Underlying values and aspirations, or the substantive object of any particular human right, should not be confused with that right itself, let alone with the broader idea or practice of human rights. Even where “the same” values are pursued, their grounds and the means to realize them may differ dramatically. There is no doubt as to the universal need and the value of human rights as values and aspirations. The mistake Universalists make is that they do not pay attention or allow for different mechanisms, which are more sensitive to the context and variables to reach those goals. Relativism in general and cultural relativism in particular have a great number of aspects that the current discourse has not addressed, knowingly or through blindsiding. This complexity is something that anthropology is capable of ideating and is no novelty in the field of human rights. There is a plethora of a literature available on how to incorporate anthropological approaches towards studying human rights especially where culture is involved. In fact, the American Anthropological Association’s 1999 ‘Declaration on Anthropology and Human Rights’

149

Misuse of Human rights has been on both sides of the artificial binary, the “west and the rest” so as to speak. Some Asian states in the 90s have been accused of using relativism as an excuse for not complying with the international standard of Human Rights. There is politics on both sides of the discourse. Shany, “The Universality of Human Right”. 150 Li , “A Cultural Critique of Cultural Relativism”, 54–72. 151 Ibid.

140

represented an attempt to radically reconfigure anthropology’s relationship with human rights on the basis of a very conventional understanding of culture, one in which those static and bounded set of ideas and practices give rise to a new human right- the right to culture, the very thing itself. 152 Legal scholarship has little to say regarding the impact of legal systems on the ground. It makes implicit assumptions in this regard and runs the risk of remaining disconnected from reality. Human rights scholars tend to passionately believe that human rights are positive. Many of the scholars are activists or former activists in the field of human rights. Although seldom stated, the explicit aim of their research is to contribute to improved respect for human rights standards. They therefore risk ignoring the fact that the pursuit of human rights is not a goal in itself, but is merely one instrument designed to help improve respect for human dignity. They may forget that human rights standards are the result of compromises reached by states and may therefore be less than perfect. They may also overlook the fact that the mere adoption of resolutions by international bodies and the establishment of a new international institution will not necessarily result in the improvement of human rights on the ground.153 Anthropological approaches are capable of exploring ranges in key concepts and examining realities on ground, making up for where legal methodology falls short. For example, in tune with the relativisms identified in the preceding section, Dundes Rentlen in her anthropological approach draws a distinction between epistemological, cultural and ethical relativism and then suggests that the epistemological is a kind of meta-relativism, a conceptual category that encompasses the others. She then focuses on the relationship between cultural and ethical relativism after defining cultural relativism as the idea that “some evaluations are relative to the cultural background out of which they arise”. Ethical relativism, however, is not conceptually coequal with cultural relativism, but rather is a subset of it. She then subdivides ethical relativism itself into three further (sub)categories: apparent ethical relativism, ethical relativism as descriptive (actual) hypothesis, and ethical relativism as prescriptive (value) hypothesis.154 The idea behind this example to show that this methodology is able to deal with the variations that the relativist critique has been unable to spot before, as has been identified earlier in this paper, and whose resolution is key towards developing an efficient mechanism.155 As far as the role of ethnography is concerned, the most important cross-cultural fact is that human beings are essentially the same and that this essential sameness entails a specific normative framework. In focusing ethnographically on particular cultures within what was believed to be their unique historical

Goodale, “Encountering Relativism”. Coomans,“Methods of Human Rights Research: A Primer”, 179–86. 154 Goodale, “Encountering Relativism”. 155 Ibid. 152

153

141

trajectories, does one realize that particular dimensions of culture—law, politics, religion, morality result from a process of situated evolution, that cannot be understood in general terms or through the use of universal analytical categories. There might be ‘patterns of culture’, but these patterns are only rough outlines, ways of describing the fact that all cultures are in fact patterned in their own terms.156 Anthropological approaches observe the way patterns of discourse shape, compel and negate ways of approaching the problem of relativism in relation to human rights. This way of framing the relativism and human rights debate is a way of examining the problem through the multifocal lens of cross-cultural experience, epistemological flexibility, and a thoroughgoing skepticism toward even the most apparently benevolent systems (political, ideological, moral) not to mention nefarious ones. Further, anthropology of human rights recognizes the fact that only through close ethnographic engagement with the practice of everyday life such distinctions and complexities become apparent. 157

4.3

Goal based to process based & negative conception

Relativism is just one backlash against the conception of universal human rights. There is no denying that certain ideas can be termed as universal. For example, every living creature definitely longs for safety of life and well being (whatever the definition may be for every individual being). Further, when it comes to preservation of life, the idea is that another human should not endanger it. A very simple example would be that of a person being killed by an animal in the wild is not classified as torture, but the intentional setting of an animal against another person towards causing bodily harm is well within the ambit of torture. Hence, it would not be strange then to say that a negative conception of Human Rights would be more useful towards accommodating diversity and realities on the ground. Human Rights must not be what must be granted but that which one must not be intentionally deprived of irrespective of who is causing the deprivation. Seen in the way, while the end goals are met there is a wide scope for individual agency to express itself. For example, in the headscarf debate, instead of worldwide reactive banning, a more suitable option would be to rather have a law saying that it must not be forcefully imposed. Once this is put into action, the agency of women is widened so as to whether or not they want to wear the headscarf.158

Goodale, “Anthropology and the Grounds of Human Rights”. Goodale, “Encountering Relativism”. 158 Does this apply to another situation, say abortion? Let’s say the law is framed stating that abortion should not be forceful. That would take care of infanticide, female foeticide while at the same time giving a woman the option to drop the child if she does not want it. 156 157

142

Conclusion

Admittedly, the paper is a whirlwind of concept of ideas and critiques that have each merited individuals works. The idea behind presenting all of it together was to suggest the inter-connectedness of it all; right from the superstructure of international law, the apparent theoretical and political debates that lay claims to better understanding of issues, to the need for acknowledgment of the reality of every individual for whom the system exists. It aimed at showing how individual and collective histories through selective acknowledgment or erasure contribute towards presenting global challenges as intractable, how much work is done and how much further we have to go and why ignoring such nuances is not towards the majority’s benefit. It does not deny the Universality of values, but does question the approach and ownership of the narrative by one section alone. Ethnographies, anthropological approaches and negative conception suggested here is just one part of the response, not the ultimate solution. This is just to show the possibility and benefit of diversifying methodologies towards recognizing issues that are crucial but remain unspotted. The benefit of anthropological approaches and ethnographies is that they bring the human back to human rights, by showing sensitivity and understanding. Various advocates of universalism who work actively in traditional Islamic and other societies have stated that the advancement of rights for women, children, religious minorities, and others depends on dialogue, persuasion, and compromise within particular states or on a panreligious basis. It is not very productive to adopt Universalist statements in major human rights documents when these are based on clumsy compromises. 159 Current human rights discourse and practice is wanting but it has a choice, a fork in the road, as Kofi Annan put it with regard to the UN: it can either insinuate itself within hegemonic international law or it can serve as an important tool in developing and strengthening a counter-hegemonic international law.160In the debate of universality versus relativism, one must understand that they need not be mutually exclusive and can actually support each other. In acknowledging the same potentially lies the key towards a better global human rights system, despite the contentious history and questionable application and exceptionalism in many cases, lack of voice and legacy of empire. Still one cannot deny that these rights have made people better off, not in the scale that those on the other side of exploitation may like, but therein lies the universality of Human Rights – the universal faith in it.

Siegel , “Universalism and Cultural Relativism”. Rajagopal, “Counter-Hegemonic International Law”, 767–83.

159 160

143

References 1. Anghie, Antony. “Governance and Globalization, Civilization and Commerce.” In Imperialism, Sovereignty and the Making of International Law, 254–69. Cambridge: Cambridge University Press, 2004. 2. Avineri, Shlomo. “The Paradox of Religion and the Universality of Human Rights.” In Human Rights with Modesty: The Problem of Universalism, 317–26. Springer-Science Business Media, B.V., 2004. 3. Buergenthal, Thomas, Dinah Sheltom, and David P Stewart. “International Human Rights in a Nutshell.” GW Law School Public Law and Legal Theory Paper No. 201334, 2009. 4. Charvet, John, and Elisa Kaczynska Nay. “Liberalism and Non-Western Cultures.” In The Liberal Project and Human Rights The Theory and Practice of a New World Order, 318–49. New York : Cambridge University Press, 2008. 5. Charlesworth, Hilary. “International Law: A Discipline of Crisis.” Modern Law Review 65, no. 3 (2002): 377–92. https://doi.org/10.1111/1468-2230.00385. 6. Chen, Jau-hwa. “Asia Values? Why Not, But How.” In Human Rights in Asia A Reassessment of the Asian Values Debate, 41–61. New York: Palgrave Macmillian, 2008. 7. Coomans, Fons, Fred Grünfeld, and Menno T. Kamminga. “Methods of Human Rights Research: A Primer.” Human Rights Quarterly 32, no. 1 (2010): 179–86. https://doi.org/10.1353/hrq.0.0127. 8. Donnelly, Jack. “The Social Construction of International Human Rights.” Human Rights in Global Politics, n.d., 71–102. https://doi.org/10.1017/cbo9781139171298.004. 9. — —. “The Relative Universality of Human Rights.” Human Rights Quarterly29, no. 2 (2007): 281–306. https://doi.org/10.1353/hrq.2007.0016. 10. — —. “Human Rights: Both Universal and Relative (A Reply to Michael Goodhart).” Human Rights Quarterly 30, no. 1 (2008): 194–204. https://doi.org/10.1353/hrq.2008.0001. 11. Engle, Eric. “Universal Human Rights: A Generational History.” Annual Survey of International & Comparative Law 12, no. 1 (2006). 12. Gillies, David. “Between Ethics and Interests: Human Rights in North-South Relations.” In Between Principle and Practice Human Rights in North-South Relations, 257–80. McGill-Queen's University Press, 1996. 13. Grbich, Judith. “Secrets of the Fetish in International Law’s Messianism.” In International Law and Its Others. Cambridge: Cambridge University Press, 2006. 14. Goodale, Mark. “Encountering Relativism.” In Surrendering to Utopia, An Anthropology of Human Rights . California: Stanford University Press, 2009. 15. Goodhart, Michael. “Neither Relative nor Universal: A Response to Donnelly.” Human Rights Quarterly30, no. 1 (2008): 183–93. https://doi.org/10.1353/hrq.2008.0005. 16. Hoang, Nghia. “The Asian Values Perspective of Human Rights: A Challenge to Universal Human Rights.” SSRN Electronic Journal, 2009. https://doi.org/10.2139/ssrn.1405436. 17. Hoffmann, Florian F. “Human Rights, the Self and the Other: Reflections on a Pragmatic Theory of Human Rights.” In International Law and Its Others. Cambridge: Cambridge University Press, 2006. 18. Hope, Simon. “Common Humanity as a Justification for Human Rights Claims.” In The Philosophy of Human Rights Contemporary Controversies, 211–29. De Gruyter, 2011.

144

19. Koskenniemi, Martti. From Apology to Utopia: the Structure of International Legal Argument. Cambridge: Cambridge University Press, 2006. 20. Li , Xiaorong. “A Cultural Critique of Cultural Relativism.” In Ethics, Human Rights and Culture Beyond Relativism and Universalism, 54–72. New York: Palgrave Macmillian, 2006. 21. Macklem, Patrick. “Self-Determination in Three Movements.” In The Sovereignty of Human Rights, 163–84. New York : Oxford University Press, 2015. 22. Mark, Goodale. “Part I Theoretical Foundations, Ch.6 Anthropology and the Grounds of Human Rights.” The Oxford Handbook of International Human Rights Law, 2013. https://doi.org/10.1093/law/9780199640133.003.0007. 23. Marks, Susan. “Human Rights in Disastrous Times.” In The Cambridge Companion to International Law . Cambridge: Cambridge University Press, 2013. 24. — —. “Four Human Rights Myths.” LSE Law, Society and Economy Working Papers 10, 2012. https://doi.org/10.4337/9781781002759.00015. 25. Moravcsik, Andrew. “The Origins of Human Rights Regimes: Democratic Delegation in Postwar Europe (2000).” International Organization 54, no. 2 (2000): 217–52. 26. Mégret, Frédéric. “Where Does the Critique of International Human Rights Stand? An Exploration in 18 Vignettes.” In New Approaches to International Law The European and the American Experiences, 3–40. The Hague: T.M.C Asser Press, 2012. 27. Merry, Sally Engle. “The Potential of Ethnographic Methods for Human Rights Research.” In Research Methods in Human Rights A Handbook, 141–60. Edward Elgar Publishing, 2017. 28. Mickelson, Karin. “South, North, International Environmental Law, and International Environmental Lawyers.” Yearbook of International Environmental Law 11, no. 1 (January 2000): 52–81. https://doi.org/10.1093/yiel/11.1.52. 29. Moyn, Samuel. The Last Utopia: Human Rights in History. Cambridge (Massachusetts): Belknap Press of Harvard University Press, 2010. 30. Perry, Michael. “The Morality of Human Rights.” San Diego Law Review, 2013. https://doi.org/ http://dx.doi.org/10.2139/ssrn.2274381. 31. Rajagopal, Balakrishnan. “Counter-Hegemonic International Law: Rethinking Human Rights and Development as a Third World Strategy.” Third World Quarterly27, no. 5 (2006): 767–83. https://doi.org/10.1080/01436590600780078. 32. Raz, Joseph. “Human Rights Without Foundations.” SSRN Electronic Journal, 2007. https://doi.org/10.2139/ssrn.999874. 33. Roy Scranton. “Roy Scranton: Narrative in the Anthropocene Is the Enemy.” Literary Hub, September 14, 2019. https://lithub.com/roy-scranton-narrative-in-the-anthropocene-is-the-enemy/. 34. S, Turner Bryan. “Part I Theoretical Foundations, Ch.4 Sociology of Human Rights.” The Oxford Handbook of International Human Rights Law, 2013. https://doi.org/10.1093/law/9780199640133.003.0005. 35. Saito, Natsu Taylor. Meeting the Enemy: American Exceptionalism and International Law. New York: New York University Press, 2016. 36. Sen, Amartya. “Human Rights and Asian Values.” Carnegie Council on Ethics and International Affairs, 1997. 37. Siegel , Richard Lewis. “Universalism and Cultural Relativism: Lessons for Transitional States.” In Human Rights and Societies in Transition: Causes, Consequences, Responses. United Nations University , 2004. 38. Shany, Yuval. “The Universality of Human Rights: Pragmatism Meets Idealism.” The JBI Human Rights Lecture , 2018. https://doi.org/10.2139/ssrn.3217779. 39. Tew , Yvonne. “Beyond ‘Asian Values’: Rethinking Rights.” CGHR Working Paper #5, November 2012.

145

40. Tourme-Jouannet, Emmanuelle. “Law and Cultural Diversity .” In What Is a Fair International Society? International Law Between Development and Recognition, 125– 39. Oxford: Hart Publishing, 2013. 41. Williams, Raymond. Problems in Materialism and Culture: Selected Essays. London, England: Verso, 1980. 42. Zakaria, Fareed, and Lee Kuan Yew. 1994. “Culture Is Destiny: A Conversation with Lee Kuan Yew.” Foreign Affairs 73 (2): 109. https://doi.org/10.2307/2004592

146

Evolution of Refugee law in Greece and Turkey in the context of Syrian refugee crisis Christina Velentza Koc University, Mirekoc, Istanbul, Turkey velentza_x@hotmail.com

Abstract. Access to international protection remain a key challenge for asylum seekers in Greece and Turkey after the Syrian refugee crisis. In my suggested research, I will argue that within the current socio-political developments in the Eastern Mediterranean and following the high influx of Syrian refugees, both countries faced an unprecedent crisis. As a result, Greece and Turkey had to implement a new legal framework on international protection and new legal mechanisms in order to be aligned with the EU acquis on refugees and asylum. Greece, transposed EU directives and Turkey provided temporary protection to the Syrians. We will argue that the implementation was a positive step for both border countries, extremely strained by the numbers in different ways, however this led in many cases in violations of human rights of asylum seekers. This will be done through examination of how the countries interpreted Geneva Convention norms and whether the policies implemented were in line with human rights and international standards on refugee protection. Through my presentation which is based on field work findings as well as desk review, I will attempt to present the response of the two border countries and analyze how refugee law and norms evolved, the discourse around refugee policy and how this impacted the lives and empowerment of refugees. I will make a critical analysis of the legal framework in both countries and argue that the EU policy exacerbated violations (in the form of the EUTurkey deal, lack of responsibility sharing, containment, detention and extraterritoriality of asylum to Turkey). I will proceed with conclusions and recommendations how the two countries could strengthen their asylum systems and promote policy reform based on a human rights-based approach. Keywords: Syrian refugees, Asylum seekers, Refugee policy, EU policy, International Refugee law.

Methodology

This article is part of a wider research with a focus on refugee protection in general and how refuge protection norms are implemented by Greece and Turkey after the Syrian influx. In my doctorate thesis, I attempt to examine Greece-Turkey relations under the prism of the 1951 Geneva Convention (Refugee Convention) after the Syrian influx, the research is a comparative study based on findings

147

and interviews with refugees, communities, policy makers and activists from my field visits in Greece and Turkey. It examines the refugee protection mechanisms and how protection norms were implemented by both Greece and Turkey, whether this was effective and efficient enough for refugees, reception conditions and integration process, what was the role of EU and UN mechanisms. And how this influenced the relations in a bilateral level. My main argument is that the EU policy implemented in Greece and Turkey (including containment policy, extraterritoriality and shifting responsibility towards refugees to Turkey) led to violations of refugee rights with the implementation of the famous EU-Turkey deal and massive deportations based on the logics â&#x20AC;&#x153;you keep them in your borders, we give you moneyâ&#x20AC;?, a humanitarian issue becomes part of accession negotiations and turns into a highly politicized issue that I criticize in my research. I argue that the political decisions taken do not fulfil European and international legal standards on refugee rights and that a strong and sincere cooperation based on human rights and refugee protection norms between the Greek and Turkish side could benefit the region and the refugees. 70.8 M have been forced from home around the world, 1 person is forcibly displaced every two seconds as a result of conflict or persecution. Amongst all these xenophobic voices, does this issue still matter? I would say yes it does matter because tomorrow a displaced person could be one of us. I conclude that this is not about nationality but this is how we are handling this entire issue of displacement, migration and mobility in our lives.

Refugee protection, characteristics and limitations of the Convention (Problematics)

When we are referring to refugee protection, it is imperative to consider that protection is conceived as a right than being dominated by procedures and regulations which focus on migration management reducing the normative power of protection as a principle and as a right and reducing its supremacy as a political goal. (Zetter, 2007) Nowadays we observe a global system with no effective protection leading to systematic violations of human rights and many controversies, but what are the main reasons for that? We believe that this lack of effective protection is due to lack of leadership, vision and political challenges for the states parties as they choose to make narrow interpretations (examples) of the 1951 Geneva Convention and international protection norms. There are limitations in the current refuge regime and reforms are needed more than ever, the securitization of the refugee regime is another determinant factor for the inappropriate implementation of the 1951 Geneva Convention, the governments of the developed countries decide to spend more and more money in security and technology systems with dubious results (Newman, 2015).

148

2.1

The refugee system then and now

Comparing with the 1950s when the 1951 Refugee Convention was signed and adopted, there has been a considerable change due to several reasons which could be due to geopolitical changes, political considerations to climate change and weather conditions which have created high numbers of internally displaced in fragile and politically unstable countries all over the world. These new developments have led to considerable strain in the refugee protection system which makes us think that new forms of development tools are needed as well as new forms of international protection (Kathleen Newland, MPI Rethinking global protection, New channels New tools, April 2015). Justification of the inadequacy There are several reasons to argue why the international refugee regime is inadequate nowadays: the territorial basis for the asylum, the inability of existing policy tools to deal with a wide spectrum of protection needs found among mixed flows of refugees and non-refugees, the lack of resources to support refugee populations in countries of first asylum, the long duration of displacement of the worldâ&#x20AC;&#x2122;s refugees and the unavailability of legal options for onward movement of people stuck in transit or in countries of first asylum where they cannot secure protection or livelihoods (this is the case of asylum seekers and refugees residing in the Greek islands due to the geographical limitation) (Newland, 2015). We also believe that it is not a matter of law or inadequacy of laws and regulations, on the contrary the institutional and legal framework exist however the Refugee Convention is not fully working as the states do not express the full will to stick to these rules, thus the problem is not the Convention per se but rather the failure of states to abide by the Convention, to apply and interpret it as a living document to respond to the existing circumstances and evolving realities of forced displacement (Newland, 2015). 2.2

Characteristics of the refugee protection regime

One of the characteristics of the protection regime nowadays is that protection policies and standards differentiate from one geographical region to another in the sense that those who can afford to reach northern countries are usually privileged with having â&#x20AC;&#x153;premiumâ&#x20AC;? asylum this puts a significant strain in the system and this is an incentive for populations to move further with the result that this leads to inequalities, differentiated treatment and inequality of rights. (Zetter, Roger 2015 Protection in crisis: Forced migration and Protection in a Global Era, MPI). 2.3

Why institutions are failing

The existing institutions on refugee protection are failing because still frozen in a distant past, they are mismatched to the contemporary reality. The post WWII nature of refugee problem was the fact that its geographic extent was intra-European and its origin was persecution, the institutions were designed to address this problem to provide coordinating mechanisms and an incentive for cooperation

149

through a legal guarantee of reciprocity. Today the refugee problem is global (Betts, 2017). According to Betts, there has never been systematic reflection on what effective refugee governance would look like in the twenty first century. He also suggested that law and humanitarian assistance offer only a part of the solution and a new overarching vision is urgently needed. Problematics One of the hidden disasters of the manifest dysfunctionality of the current refugee system is that few states feel obliged to honor its codes of conduct (Betts, Collier 3017). The dysfunction does not stem from noncompliance with the rules but from incoherent objectives and a lack of clear means to achieve them. Liz Collet has suggested that “international treaties are like fairies, if you stop believing in them they die”. 2.4

A need to establish a widely accepted refugee system

There is a need to widen protection and establish a widely accepted refugee system. Lots of scholars argue that the current refugee protection regime is very much limited by the fact that contemporary displacement nowadays does not match the persecution-based, grounds-specific definition of a refugee in 1951 Convention (Newland, Betts) and therefore individual assessment of refugee claims are not there to protect refugee needs and rights and there is not widely accepted international regime to protect refugees (Newland, Zetter). One of the characteristics of the protection regime today is that protection policies, standards and mechanisms are different in different geographic locations, those who afford to reach northern countries are usually privileged with having “premium” asylum, this place particular constraint in the system, is an incentive for populations to move further and this of course leads to inequalities and not same provision of rights. The tendency today is that protection is dominated by procedures and regulations which focus on migration management reducing the normative power of protection as a principle and as a right also the migration and refugee issue has widely been politicized and this political context has reduced its supremacy as a policy goal. The critique here done by Zitter is that the existing legal and normative framework is not enough to tackle current and contemporary forms of forced displacement. Their needs might be better addressed through the concept of “displacement vulnerability”, from, during and after displacement. There is this new tendency (most NGOs adopt) that protection should not be provided and based on a legal status however there should be an effective “needsbased” approach based on vulnerabilities. A parallel line of argument is a “rightsbased” approach.

The Syrian case

The Syrian conflict is a very well demonstrated contemporary example that generalized violence and conflict is a driver of large-scale population displacement which does not match the convention-based definition and thus again a need for widening protection space appears.

150

Another issue which restraints full protection is the little progress made in widening refugee like protection and arrangements within the existing system do not provide a cooperative framework towards that. The Syrian case is a demonstration that the individual assessment of refugee claims is not always there to protect refugees. The result of that was thousands of Syrians awaiting their decision to be issued in confinement in the detention centers of the Greek islands in deplorable conditions and under an illegal limitation of freedom of movement. This does not promote their rights nor leads to a dignified life in the hosting country. In the case of Greece, for Syrians entering the European soil through Greece and considering that the majority of them were falling under the refugee status category, it would have been much more advisable as a policy goal to activate temporary protection directive or provide some sort of humanitarian or temporary protection to Syrians under some quota rather than proceeding to individual assessments of their asylum which led to long awaiting, delays and long processes leaving people in a legal limbo (Based on findings from field interviews in Lesvos, Greece). This would have avoided the overburdening of the Greek system (already having a high rate of backlog caseload) as well as leaving thousands of Syrians in legal limbo, especially for those at the islands close to the Turkish shore. The Syrian crisis and the EU-From protection to management of the refugee issue (from a norms-based approach to a protection management approach) The Syrian crisis has demonstrated in the strictest way that the EU was unable to coordinate and share responsibilities, the EU has failed in so many ways to promote international protection and refugee’ rights, on the contrary it is of our opinion that EU policies exacerbated protection norms and human rights of refugees and led to a widespread policy of deliberate containment and violation of human rights in Greece (Eastern Aegean islands). A change in policy towards strengthening normative framework and contemporary patterns, policy relating to asylum, migration and international protection should be consistent and of more profound concern is the dichotomy between the global north and global south. (Zetter, 2015). “Divergence sacrifices the quality of protection to the supremacy of containment”. What happens in most of the times in the displaced situations and this also applied to Syrian crisis and displacement situation in our view is that there has been a shift from a norms-based approach to a protection management approach.

Refugee protection in Greece

Based on our findings from our fieldwork in Lesbos (Mirekoç Policy Brief 12/2018), some interviewees had argued that the response post 2015 was delayed (as there was no precedent of such an influx so the state mechanism was caught unprepared and uncoordinated) also it was defined by a neo colonialist spirit of several humanitarian actors and NGOs (most of them having worked for the humanitarian and development sector) to obtain a supreme role and get involved in the provision of assistance and protection overruling the competent national authorities, local organizations and local communities (Velentza, Mirekoç Paper).

151

The lack of coordination and gaps in the system was filled by volunteers which many times ignored the reality and context in Greece (political and geographic) which often makes them at odds with local populations (F. Rantsiou, E-Kathimerini Refugee presponse in Greece: A flawed system, December 2015 http://www.ekathimerini.com/214403/opinion/ekathimerini/comment/refugeeresponse-in-greece-a-flawed-system). In this regard, Chimni (2009) sees the shift from British colonization having only been replaced by Western interests wishing to dominate over the South visà-vis exploitative capitalism and political humanitarianism which seeks to further maintain the status quo. Malkki (1995: 506-07) writes that “the discourse of development has colonized refugee issues” and successfully depoliticized refugee movements, making them an issue related to the Third World and development and ignoring larger social-political processes which forced their movement. Further, Zetter (1991: 41) notes that such a process has been intentional by policymakers; it has socialized refugees in a certain manner in order to justify structural control and regulation through hegemonic policies. 4.1

Discourse and narratives

Political discourse has been conveniently served by conceptual confusion in which the refugee label, and the larger number of less privileged sub-labels, have become a shorthand for any form of migrant and the vehicle for regulatory reaction. Zetter argues that the process of claiming asylum is becoming highly criminalized undermining the fundamental right enshrined in the Convention, “refugee status becomes a commodity to be bought, accessible to the healthier rather than a right as enshrined in the Convention”. 4.2

Securitization vs Human rights-based approach

This tendency of states entails that protection is dominated predominantly by institutionalized procedures and regulations instrumental led by humanitarian actors and international organizations, that means that the normative supremacy of protection as a principle and human right is diminished. The current global discourse reinforces securitization in detriment of human rights and protection instrumentals as never before (diverse and complex multiclausal drivers). Policies are formed, transformed and politicized in the global north and not in the global south anymore by humanitarian actors and thus the center has been transformed to the north (Zetter, More labels fewer refugees, 2007). 4.3

A need to change narratives

Apart from a policy change on displacement, asylum and international protection norms, in order to debate a new system, we need not only to change in policy but also a change in terms of narratives (Aleinikoff, 2015). In order to achieve that, recognizing the development potential of the displaced populations would mean a shift in narratives, actors, perspectives and along with that, it would be essential to shift the narrative of that from burden to benefit and demonstrate the

152

full potential of the displaced populations without marginalizing or demonizing them. This framing of displacement crisis as a humanitarian emergency situation further widens the disastrous humanitarian-development divide that dominates most of the displacement crises (Zetter, 2007).

Non-entrée policies and shift of responsibilities to border countries (Greek-Turkish example)

In the Greek Turkish example, there was an overstretching of both systems in a different scale of course when we consider Greece and Turkey (Turkey hosts the highest number of refugees in the world with 3.5M registered under temporary protection) which led to an already existing huge backlog (in the case of Greece), shift of the burden sharing to border countries (Greece and Turkey), outsourcing of responsibilities and immigration obligations further the borders of rich countries, overstretching of the Turkish system and implementation of the critical EUTurkey deal based on the consideration by European leaders that Turkey is a “safe-third” country (EU-Turkey deal) this development was exacerbated by the EU decisions and non-entrée policies. It is a fact that the heaviest stress on the protection regime (norms, capacity, quality of protection, fair asylum systems, volume of demand) remain close to the epicenter of the conflict rather than the post-industrial countries (Zetter, 2015). Non-entrée politics tend to shift the problem of providing protection to poorer countries usually border countries that are already bearing disproportionate burden. Since 1990s there is a growing tendency that an increasing number of transfers have transferred their responsibilities to “safe third countries” and also their reluctance to provide permanent international protection in their territory (temporary schemes) (Catherine Puong, 2018). The extensive application of “transfer of responsibility” to any safe third country could lead to chain deportations which could ultimately produce refoulment. The assumption in the case of Syrian refugees in the Eastern Mediterranean and around the narrative which was framed in Greece and Turkey was that refugees would repatriate and return in their country of origin as soon as the war is over which limits protection capacity. AKP government in Turkey had assumed that Syrian “guests” – Muslim brothers would repatriate in months or few years after the conflict in Syria (historically this was also the assumption in the case of Palestinian refugees who have been refugees since 1948 and they have been living in neighboring countries with limited protection needs addressed by the hosting governments in most cases, ex Lebanon and been under the jurisdiction of UNRWA not UNHCR). Refugee protection has had its origin and basement after World War II. We will analyze here and focus on whether the policies implemented in Greece and Turkey following the Syrian crisis were more humanitarian or serving political interests. In the Greek Turkish case study, we argue that the refugee issue was strongly politicized and refugees were seen as scapegoats in the Greek Turkish political arena, they were used politically by both governments Syriza government (which

153

had a pro refugee and pro migrant stance as a traditional left-wing party) (and even the newly elected New Democracy government in Greece imposes anti-refugee measures and used hate speech) and AKP government in order to gain political benefits. The Syrian conflict highlighted the international dimension to the refugee problem and the need for the efficient implementation of rules and coordination of actors involved. An important element we need to observe in the response to the Syrian crisis is whether both states remained abide by the letter of the 1951 Refugee Convention and whether politics on refugee protection were applied for humanitarian purposes or served political interests and political games at national stage of the respective countries. There is a need for states to address the increased management and politicization of protection and shift their priorities from status to needs and develop a coherent protection policy (Zetter, Roger 2015). Refugee protection is based on the notion of collective responsibility and not be left at the hands of border countries or frontline member states to cope with such an influx let alone to those who struggle with internal turbulence, such as economic crises, austerity and impact on the economic independence of the country (this is the case for Greece), third developing countries with a dubious human rights record like in the case of Turkey. We could argue that the obstacles of efficient implementation in the cases of Greece and Turkey were the ones below: Socio economic, legal and policy as well as practical. In the Greek Turkish example, the recent political and economic crisis was a significant factor which shaped the response to the refugee crisis. Prolonged nonimplementation of the Convention could be detrimental in the management of situations of current refugee crisis at the global level and thus hurts the interests of the state parties to the Convention and its protocol and even the international community as a whole. (Goodwin-Gill, The politics of refugee protection Refugee Survey Quarterly, Vol. 27, No 1, 2008). The way the governments nowadays handle the refugee issue could tell a lot about their approach vis a vis the vulnerable and those displaced by war, conflict and humanitarian disasters. We will assess whether existing politics serve the refugee or make the refugee an instrument of other purposes and interests. In Greece, the Greek Government politicized the issue and from the outbreak of the Syrian crisis, the Greek Government adopted a pro refugee discourse. This decision had two explanations: the first is ideological as Syriza was traditionally standing in favor of migrants and refugee communities and was known for its proletarian internationalist views even before it comes to the Government and rule the country. The second consideration is that Syriza after the big flows came and transited Greece decided to play this card with Chancellor Merkel in order to get a debt relief for bail out, this was the consensus for keeping some thousands of Syrians within the borders. However, the card was not played well and shortly after some time Germany reinitiated Dublin transfers since, on the basis that Greek asylum system was strengthened enough to receive asylum seekers who had initially applied for asylum in the period. In addition, many analysts argue that since Greece has lost her economic independence it can no longer have national sovereignty.

154

National sovereignty should be based on economic independence, economic slavery due to economic debt should be substituted by a free and sovereign national economy (Veremis, History of greek Turkish relations 2013 from Kemal’s speech, Izmir 1923). In Turkey’s case, extreme polarization in the society, high numbers of Syrians residing in Turkey since the outbreak of the Syrian crisis (3.5 million) as well as the authoritarianism of Erdogan regime led to a shift from the “guests” discourse to the return to their country of origin and hate speech. Another very interesting point to mention is that the governments and men of politics are those who transform the labels and not NGOs and humanitarian actors, the labelling now is framing in the discussion for citizenship, the definition of the “other” in the society rather than rights and entitlements (Zetter, 2007). Labelling is a fundamental part of policy discourse. In the Greek Turkish example, Greece is a fully signatory to the Geneva Convention while Turkey is limited by the geographic limitation (which means that it gives full refugee status only to those originating from European territory). The geographic limitation could be considered a legal and policy limitation to the implementation of the Convention (Goodwin-Gill) and prolongs non-implementation which could be detrimental in the management of situations of current refugee crisis and thus hurts the interests of 1951 state parties to the Convention and its protocol and even the international community as a whole. . The temporary international protection that Turkey has awarded to Syrians was a first positive step but not considered adequate protection as it lacks guarantees for their legal status and leaves them in a legal limbo also there is a good basis for their potential return in the country of origin (the current discourse is framed around the establishment of a “safe zone in the northeast part of Syria with dubious results). Inexistence of asylum procedures and temporary international protection leaves Syrians under temporary protection scheme under a legal limbo and with limited opportunities to access legal market, does not provide full rights and protection in Turkey nor it grants safety or legal safeguards for a permanent settlement to those residing on Turkish soil. In the Greek Turkish case, we could argue that in terms of protection there was a full realization of persistent reluctance of Greece and Turkey to recognize the refugee problem as anything but temporary when the crisis outbroke and impacted the two systems on asylum and migration. It needs to be stressed that there are two approaches in terms of protection, the realist and idealist one and are detached from the ground (Nathan-Chapotot) and had recognized the willingness of the states to recognize the refugee problem as anything but temporary, to go beyond agreements of limited scope, to provide more than limited funds or to “upset” countries of origin. Refugee protection and assistance and institutionalized within the UN system, their effectiveness remains affected by the same limitations. (Nathan-Chapotot). Another common factor which shaped the response in both countries was the fact that the refugee issue was strongly politicized from the beginning and both countries as border countries received pressure to receive and host the populations even if this was beyond their means (in exchange of funding and this promise of visa liberalization for the Turkish citizens which has not yet fulfilled). One of the

155

characteristics of the response was the fact that both countries managed to use a strongly humanitarian issue and make it a political one to serve their political interests (in Greece’s case it was used as a means to obtain better and favorable conditions for the bail out, in Turkey’s case Turkey adopted the discourse around “guests” and Muslim brothers and within this context it saw an opportunity in order to play a more significant role in the Syrian crisis and the whole region.

State responsibilities towards refugee protection

The main argument is that despite the Convention’s tremendous contribution to refugee protection, there are enormous gaps. There are limitations of the international protection regime and part of the problem is due to the fact that while there is a recognition to a right to asylum there is a lack of responding duty to grant asylum. (Catherine Puong, Identifying States responsibility towards refugees and asylum seekers, 2108 https://esil-sedi.eu/wp-content/uploads/2018/04/Phuong.pdf) The 1948 Universal Declaration of Human Rights famously provides that “everyone has the right to seek and enjoy in other countries asylum from persecution” (article 14). However, this right to seek asylum has not been included in any legally binding instrument. Most notably, there is no mention of this right in the 1951 Refugee Convention. That means states have the right to give asylum rather than a duty to grant asylum, which follows from their sovereign right to have sovereignty over their territory. In addition, international law does not provide for a legal obligation to grant asylum. Since the 1990s there is this growing tendency that an increasing number of states have transferred their responsibilities to “safe third countries” and also their reluctance to provide permanent international protection in their territory (temporary schemes). Chaung is criticizing this “transfer of responsibility” of asylum to “any safe third country”. The extensive application of this could lead to chain deportations which could ultimately produce refoulment. All these limitations described above which result in considerable protection gaps and shrinking protection space in the area of refugee protection result in the conclusion that the system needs extreme reforms to supplement and reinforce the Convention rather than replace the Convention based refugee protection regime.

Refugee protection: A reform is needed more than ever

Some of the people traveling toward asylum countries in the West would be considered prima facie refugees, without question, had they stayed in countries neighboring their own, but their refugee status is questioned when they seek a more secure place of refuge. There are examples of cooperation between intended destination countries and countries of transit or first asylum intended to expand protection capacity, such as the European Union’s “mobility partnership” with

156

Morocco. It seems that it is more of an outsourcing of protection responsibilities and immigration obligations further than borders of rich countries. Goodwin substantially examines whether the politics on refugee protection are merely humanitarian or serve other purposes, and political interests (GoodwinGill, The politics of refugee protection Refugee Survey Quarterly, Vol. 27, No. 1 (2008). He examines whether existing politics serve the refugee or make the refugee an instrument of other purposes and interests, he argues that differences were not insurmountable and said that cooperation and collaboration could be achieved when state could guarantee that refugees would restrain from any criminal activity and that they would not use refugees in an international struggle. It is also important that in order to debate a new system we need not only a change in policy but also a change in terms of narratives. A narrative should be framed differently in the host community about the country of origin. Humanitarian relief is associated more with emergency relief. Recognizing the development potential of the displaced populations would means a shift in narratives, actors, perspectives it is also essential to shift the narrative of that from burden to benefit and demonstrate the full potential of displaced populations (MPI, Aleinikoff, From dependence to self-reliance: Changing the paradigm in protracted refugee situations (2015). Giving equal opportunities to Syrians in labor market and adopting integration strategies would be feasible in the Greek Turkish case. What also applies to Syrians is that within the cities, they look for economic opportunities outside camps settings, urban refugees lack opportunities and legal status leaving them vulnerable to detention, eviction and refoulment. Globalized processes and patterns have shaped a different refugee identity today. This transformation of refugee label is a response to the existing new complex patterns. The refugee label has strongly been politicized by the process of bureaucratic fractioning (Zetter) reproduced in pejorative labels. He argues that refugee crises were originally contained “south-south” phenomena even if the conflicts producing them were a proxy for wider geopolitical phenomena. Refugees were shaped in a convenient “humanitarian” label (Harell-Bond, 1986). He argues that a new dynamic drives the political and policy making response, actors involved and policies implemented, actors involved, their actions, modalities of their intervention responding to different categories of people on the move. He also suggests that policies are formed, transformed and politicized in the global north and not in global south anymore by humanitarian actors as used to be the case before. Refugee status has remained the only possible way of accession through entry points for large scale displacing and migration populations (Kunz 1973: conceptualization of the process of migrants). That being said, the conventional interpretation of refugee has been transformed and there is a variety of extraterritorial instruments towards this direction – offshoring, bilateral agreements of return, airport liaison officers, established rights are becoming fast track appeals and deportation, limited judicial review, more detention, so called white lists of countries presumed not to persecute, European conventions preventing multiple applications in EU Member States. (Zetter). Deterring would-be refugees from entry has been matched by equally powerful policies of restrictionism within all the

157

major countries of asylum. Government agencies have been scaled up, or newly established, to manage the rising influx of refugees awaiting status determination. Far-reaching and complex bureaucratic procedures transform the label into far more discriminatory outcomes. Some asylum seekers are allocated to reception or detention centers, mirroring the iconic refugee camps of the developing world in the 1970s and 1980s. Others are forced into dispersal and accommodation schemes far away from preferred temporary locations and social networks (Zetter et al. 2003a). Nine out of ten largest refugee hosting countries place major restrictions on refugees right to work, in terms of solutions, fewer than one in thirty refugees currently receive access to resettlement, repatriation or local integration (Betts, Collier 2017). The existing institutions are failing because still frozen in a distant past, they are mismatched to the contemporary reality. The post WWII nature of refugee problem was the fact that its geographic extent was intra-European and its origin was persecution, the institutions were designed to address this problem to provide coordinating mechanisms and an incentive for cooperation through a legal guarantee of reciprocity. Today the refugee problem is global (Betts, 2017). According to Betts, there has never been systematic reflection on what effective refugee governance would look like in the twenty first century and humanitarian assistance offer only a part of the solution and a new overarching vision is urgently needed. States will align with international law when it aligns with their interests (Steve Krasner). One viable solution to fill gaps in the system would not be likely be a negotiation of new multilateral treaties. The EU-Turkey deal with all its weaknesses, embarrassments, and unintended consequences became the default focus of the EUâ&#x20AC;&#x2122;s attempts to create a viable governance mechanism. Therefore, we understand that there is an existing need to improve monitoring of the Refugee Convention and monitoring mechanisms and this is in the need of interest of all actors involved in the refugee protection system. Non-implementation violates refugee rights and guarantees provided for by international law. It also violates the rights of other state parties to the convention and other relevant instruments and is detrimental to their interests because disregard for international refugee law as this might create secondary movements of refugees. Non-implementation also undermines the role of UNHCR and capacity to fulfill its mandate to assist in refugee situations. In the end, the main argument is that non-implementation affects the whole international community, a regime which has been able to fix not all but significant refugee problems. Some key recommendations for Greece include: â&#x20AC;˘ According to the latest recommendations by the National Commission on Human Rights, the recommendations in several sectors from reception and accommodation, detention, asylum procedures, UAMs, push packs and non-refoulment until refugee integration (work, education, health, housing) are: â&#x20AC;˘ Amongst others the immediate termination of the entrapment of applicants for international protection in the Eastern Aegean islands and the lifting of geographical limitations imposed on them, as well as their transfer to mainland in order to ensure the immediate decongestion of the islands;

158

• The abolition of the general measure of geographical limitation imposed on applicants arriving at the islands and the adoption of a legal provision whereby any geographical limitation shall be based on an individual assessment and be imposed by a reasoned administrative decision, providing also the applicants with a right to effective judicial protection, given the nature of the measure, i.e. the restriction of their freedom of movement; • The signing and immediate ratification of Protocol No 4 to the ECHR, which amongst others, prohibits the collective expulsion of aliens and guarantees the freedom of movement, allowing for the imposition of lawful restrictions thereon under specific conditions; • The abolition of the general measure of geographical limitation imposed on applicants arriving at the eastern Aegean islands and the adoption of a legal provision whereby any geographical limitation shall be based on an individual assessment and be imposed by a reasoned administrative decision, providing also the applicants with a right to effective judicial protection, given the nature of the measure, i.e. the restriction of their freedom of movement; • The increase of accommodation places in mainland Greece, in centers suitable for long term residence of applicants of international protection, with special care for families and vulnerable; • The creation of medium size in terms of capacity Accommodation Centers within residential areas, fulfilling the minimum living standards; • The strengthening of the urban accommodation program, in particular for vulnerable groups and those living in inappropriate places, in cooperation with the UNCHR and with the aim of gradually hosting all asylum seekers; • The issuance as soon as possible, of the rules of operation for all accommodation centers; • The immediate and full staffing of the reception and identification service and reception centers with qualifies staff; • The strengthening of accommodation centers with medical and aramedical staff as well as administrative personnel and social workers (interpreters, intercultural mediators, plumbers, electricians, housekeeping staff and managers for the proper operation of facilities). • The protection of vulnerable groups by taking measures, such as immediately transferring them to open accommodation facilities where they can receive appropriate care and support for their specific needs and proportionally increasing the accommodation places, which are not sufficient; • The safeguarding of the rights of applicants for international protection with disabilities and chronic diseases and the operation of reception centers and accommodation facilities aware of LGBTQI issues. Following the latest report from Council of Europe, (Commission on the prevention of torture) the recommendations (detention related) made were the ones below: • The measure of detention should be used only as an exception or as a last resort for reasons expressly provided for by the law and should be as short as possible. Administrative detention on the grounds of irregular entry into the country should not apply to applicants for international protection. The Greek

159

authorities should always consider, in each individual case and before the imposition of a detention measure, the application of alternatives to detention measures, in accordance with the applicable national provisions (article 30 of Law 3907/2011, article 46 of Law 4375/2016). Any decision to restrict/deprive asylum seekers of their personal liberty must be examined by a court for its legality. • Relating to recent developments in asylum system and laws and current developments it is recommended that the Greek State ensures the right of unhindered access to asylum for all who expressed their will to, without undue delays, the prompt and unimpeded processing of all applications of international protection at every stage of the process, with a view to ensuring the quality of administrative decisions, so that the process meets the requirements of effectiveness, the nonrenewal and termination of derogatory border procedure of Article 60(4) of Law 4375/2016 which was introduced was an exceptional measure so that the process meets the requirements of effectiveness; the administrative and financial independence of the Asylum Service and the Appeals Authority; the institutional reinforcement of second instance and of the independence of the Appeals Committees, which exercise jurisdictional functions and constitute the review mechanism, in law and substance, of international protection applications; compliance with procedural safeguards emanating from the submission of an application for international protection to the Greek authorities, ensuring provision of interpretation services and legal aid per the law. • International governance and reforms to be done in the current refugee protection regime through developing a coherent protection policy, shift emphasis from status to needs, provide consistent protection along the displacement continuum, address the increased management and politicization of protection. Some recommendations for Turkey include: • State level legitimization of the current refugee politics and policies with regards to Syrians go hand in hand with de jure regulations and de facto practices. These flexibilities create an open space for cheap labor force and contribute to the state economy; on the other hand, it makes refugee statuses continue to be unclear. • A gradual extension of regulatory practices towards regulation of the refugee policies is the main recommendation, economic social entrepreneurship initiatives resulting in refugees to be included in the labor market with self-reliance, such as measures for creating incentives for employers to hire refugee, more inclusive types of policies to the urban setting and integration through eliminating language barriers and tailoring of the available funds to foster registered employment, supporting grassroots initiatives in civil society and instead of following de facto policies, to assign clear directives on local municipalities to intervene in minimizing public disfavor, transparency, consistency and proportionality in future adopted measures will ensure to minimize ambiguity and public disfavor. (Altiok, Tosun How to coexist urban refugees in Turkey: prospects and challenges, UNESCO Chair on International Migration Policy Brief, 2018 https://mirekoc.ku.edu.tr/wp-content/uploads/2018/10/ALTIOKand-TOSUN-2018-How-to-coexist.pdf).

160

References 1. Aleinikoff, From dependence to self-reliance: Changing the paradigm in protracted refugee situations (2015). 2. Altiok, Tosun How to coexist urban refugees in Turkey: prospects and challenges, UNESCO Chair on International Migration Policy Brief, 2018 https://mirekoc.ku.edu.tr/wp-content/uploads/2018/10/ALTIOK-and-TOSUN-2018How-to-coexist.pdf 3. Betts Alexander Collier Paul, Refuge Transforming a Broken Refugee System, 2017 4. Chimni B.S. The Birth of a ‘Discipline’: From Refugee to Forced Migration Studies, Journal of Refugee Studies, Volume 22, Issue 1, March 2009, Pages 11– 29, https://doi.org/10.1093/jrs/fen051 5. Goodwin-Gill, The politics of refugee protection Refugee Survey Quarterly, Vol. 27, No. 1 (2008). 6. National Commission of Human Rights Greece, Report and recommendations2019 http://www.nchr.gr/images/English_Site/PROSFYGES/GNCHR%20Key%20recommendations%20on%20Refugee %20Protection.pdf?fbclid=IwAR2norIy6Awq3wlfq3evqxotGGCvRmGpFvsADTpivZxleIujNOJT8xy-lo 7. Newland Kathleen, MPI Rethinking global protection, new channels new tools, April 2015 8. Puong Catherine, Identifying States responsibility towards refugees and asylum seekers, 2108 https://esil-sedi.eu/wp-content/uploads/2018/04/Phuong.pdf) 9. Rantsiou Fotini, E-Kathimerini Refugee presponse in Greece: A flawed system, December 2015 http://www.ekathimerini.com/214403/opinion/ekathimerini/comment/refugee-response-in-greece-a-flawed-system 10. Roger Nathan-Chapotot, Les Nations Unies et les réfugiés : le maintien de la paix et le conflit de qualifications entre l'Ouest et l'Est. 11. Velentza Christina, Mirekoc Policy Paper 12/2018 The Greek response to the refugee crisis in Eastern Meditterenean (overview 2015-2016) https://mirekoc.ku.edu.tr/wpcontent/uploads/2019/01/Mirekoc_Report_The-Greek-response-to-the-refugee-crisis-in-Eastern-Mediterranean-web.pdf 12. Zetter Roger, More Labels, Fewer Refugees: Remaking the Refugee Label in an Era of Globalization Article in Journal of Refugee Studies 20(2):172-192, June 2007

161

The fourth sector of the economy as part of the new corporate social responsibility global paradigm Vivian Rodrigues Madeira da Costa University of Seville, Spain vivirodriguesmadeira@yahoo.com.br

Carolina Rodrigues Madeira da Costa University of Castilla La Mancha, Spain

carolinarmadeira@gmail.com Diogo Luiz Chagas Santos University of Seville, Spain

diogolcsantos@gmail.com

Abstract. The aim of this proposed paper is to disseminate the knowledge about the fourth sector, as well as to describe and analyse the new legal and economic paradigms in which this sector is based. Such paradigms renew what until then was known as ethics of business and corporate social responsibility. Thus, there is the affirmation of new concepts, creating an environment in which entrepreneurship is developed in a sustainable and fair way, where all members of the production chain are respected and fairly paid, for instance. In this context, new concepts arise, such as social, humanitarian and sustainable business development, whose debate is important in the current scenario. The international companies have already realized that in the name of the social responsibility and also because the alarming humanitarian crisis put at risk their offices, supply chains and staff, it is fundamentally important to change their dynamics. Therefore, a new fourth sector of the economy has emerged at the intersection of the three traditional sectors, consisting of for-benefit organizations, which come in a wide variety of models that all share some common characteristics. This sector would be composed of companies that profit in the traditional sense, but also seek to integrate to the very essence of its institutional functioning a new concern about operating in a sustainable way and through concepts of fair economy, inaugurating a new kind of dialogue between social responsibility in the global value chain and international entrepreneurship. Keywords: Fourth Sector, Social responsibility, Entrepreneurship.

162

Introduction

The fourth sector can be understood as a new sector of the economy, which emerges bringing together characteristics and functions of the traditional first and second sectors. Thus, in the fourth sector are companies, as well as those business models that wish to achieve financial success, but at the same time contribute somehow to the creation of a prosperous economy and a fairer and more sustainable society. Indeed, the fourth sector is based on new paradigms, renewing what was previously known as business ethics and the social responsibility of the company, as it implements in its own functional structure important concepts for social development itself, promoting fair labour practices, and concern for sustainability, for instance. Therefore, it is important to address and stimulate the growth of this sector. The aim of this paper is to disseminate the knowledge about the fourth sector, as well as to describe and analyse the new legal and economic paradigms in which this sector is based. Such paradigms renew what until then was known as ethics of business and social responsibility of the company. Thus, new concepts, taken into account, create an environment in which entrepreneurship is developed in a sustainable and fair way, whereas all members of the production chain are respected and fairly paid, for instance. In this context, new concepts arise, such as social, humanitarian and sustainable business development, whose debate is important in the current scenario. The international companies have already realized that in the name of the social responsibility and also because the alarming humanitarian crisis put at risk their offices, supply chains and staff, it is fundamentally important to change their dynamics. Therefore, a new fourth sector of the economy has emerged at the intersection of the three traditional sectors, consisting of for-benefit organizations, which come in a wide variety of models that all share some common characteristics. This sector would be composed of companies that profit in the traditional sense, but also seek to integrate to the very essence of its institutional functioning a new concern about operating in a sustainable way and through concepts of fair economy, inaugurating a dialogue between humanitarian matters and international entrepreneurship. Furthermore, this sector also addresses new demands of the consumers, who seek to consume healthier products, made of local products, concerned about cruelty free and sustainable production. In fact, these aspects can also be related to a new global paradigm of the corporate social responsibility, to be addressed in this article. Therefore, the emergence of the fourth sector, the new parameters for social ethics and the social responsibility of the company, consisting of a new corporate social responsibility global paradigm and the challenges to overcome will be presented and studied in the present paper.

163

The Emergence of the Fourth Sector

It can be observed the arise of a new sector classified as the fourth, as previously mentioned. Accordingly to the traditional social and economic sectors´ classification, it is known that the first sector refers to the government and public branches, being represented by government institutions, while the second is constituted by companies based on the capitalist profit model. Meanwhile, institutions that do not follow this model, but are not governmental, are grouped in the so-called third sector, operated through a concern for social benefit. Therefore, such a sector is generally made up of non-profit associations, foundations or non-governmental organizations. Classified as third sector are non-governmental organizations and institutions, but their activities are directed to non-profit matters. In the third sector are also those entities that did not fit into the first or second sector, such as universities, religious institutions, cooperatives and civil society organizations of various kinds. So, nowadays, it is also considered a fourth sector, as a new concept, consisting of a fusion and integration between the second and third sectors, in the sense of its concerns and intrinsic fundamental characteristics. Therefore, this sector would be made up of companies that intend to generate profit in the traditional sense, but that also seek to fulfil social functions, integrating them with the very essence of their operation. Indeed, it can be noticed the emergence of hybrid organizations, as defined at the Executive Summary about The Emerging Fourth Sector, as a new sector of organizations at the intersection of the public, private and social sectors, published by Herrad Sabeti with the Fourth Sector Network Concept Working Group (1998-2009) and supported by the Aspen Institute and W.K. Kellogg Foundation.161 Notwithstanding, the idea of this sector goes beyond the unification of the previous sectors, because the merging of features is not a mere junction, but has resulted in new features. So, in this sector would be sustainable companies with concepts of fair economy, for instance. The traditional form of business classification, categorizing them as “for-profit” and “non-profit”, has become obsolete and restrictive in the actual scenario, where business should be concerned with the social and environmental impact of its activities. In addition, companies in the fourth sector integrate their goals in meeting social demands that governments and civil society organizations cannot meet, but

161

As quoted at the Executive Summary from the Fourth Sector Network Concept Working Group: ¨Pioneering organizations have emerged with new models for addressing societal challenges that blend attributes and strategies from all sectors. They are creating hybrid organizations that transcend the usual sectoral boundaries and that resist easy classification within the traditional three sectors. ¨

164

also thinking in the profit. In recent years, there is an increase in the number of companies that promote social responsibility actions, addressing social issues. Especially in the so-called developing countries, where the bankruptcies of governments and the existence of several other social and economic problems, it can be observed that it is even more important for the private initiative and business actions to promote solutions to some social problems. Interestingly, many of the hybrid institutions, which blend the best of traditional operative forms, emerged from the third sector of civil society. These third sector institutions, created with the aim of fostering social welfare, have their activities very restricted, since their operation is often conditioned by donations and contributions. Thus, it began to look for alternatives that would expand its capacity to operate, reaching new business structures, as presented by companies in the fourth sector. Therefore, new market models appear that seek profitability, but at the same time that wish to address to social and economic challenges. These companies can come in a variety of forms, such as social and sustainable enterprise, cooperative corporations, civic enterprises, with an inclusive organizational model.

New parameters for social ethics and the social responsibility of the company: A new corporate social responsibility global paradigm

The classical thinking leads us to understand business ethics in line with normative provisions, meaning that by complying with legal guidelines, companies would be complying with ethical precepts. Through the same conception, the social function of the company would be fulfilled when the minimum elements of respect for the collective structures in which it was inserted were met, even though it the social demands were minimally address. Notwithstanding, in the current social scenario, business ethics is no longer simply a matter of legality, but there is something beyond mere formality, not only the absence of violations of the law, but an effective collaborative element for social development. In the first place, such an element of concern with the promotion of development would be on a macro scale, being a support point for the improvement of the society in which economic activity is inserted. As it is indicated at the Executive Summary about The Emerging Fourth Sector, published by Herrad Sabeti with the Fourth Sector Network Concept Working Group, the arise of this new business model, which also changes the paradigm of the corporate social responsibility, led to the so-called For-Benefit Organization, whose core attributes would be: social purpose, business method, inclusive ownership and stakeholder governance, fair compensation, reasonable returns, social and environmental sustainability, transparency and protected assets. This last characteristic, for example, means that through this new business model, it could be merged or acquired any organization as long as the entity was also a social purpose one and, about the business method, the for-benefit organization could conduct any lawful business activity that is consistent with its social

165

purpose and stakeholder responsibilities and would be an equitable distribution of ownership rights among its stakeholders in accordance with their contributions, as it is written it the appointed Summary. Another important contribution of the fourth sector is the promotion of local trade and production, as these companies seek to find their labour and raw materials in the region where they are located. Thus, they structure a conception of developments linked to the physical space of their facilities. In this way, employees reside in the region, reducing commuting times and improving employees' quality of life; The raw materials are extracted or purchased from local producers. This stimulates and develops local trade. Many of these new companies also use traditional production processes in the region, using their typical architectural structures for their facilities, which is often the simple answer needed to pursue sustainable production. Besides being sustainable, this type of production generates spaces for citizen participation, which evidently helps in local social growth. Therefore, the entire structure of the fourth sector fosters the human principles of equal opportunity, sustainability, participation and empowerment of the local community. Undoubtedly, such reasoning goes beyond the simple concern with the implementation of social responsibility activities detached from the functional structure of the company, as hitherto identified. Companies that are concerned about social activity are positive, but may continue to integrate unfair practices into their core and internal functioning, if there are salary differences due to gender or age discrimination, for example, or if there is no concern about the sustainability of the business and of the productive chain. However, there is also a micro-scale perspective, since there is concern for the nearest social context, from a personal perspective, and thus in relation to the improvement of the life of each individual involved in the business process. In addition, this concern must permeate the entire productive and institutional structure, so that it is truly integrated into the business operation. When mentioning the business process, it covers the production line, including employees and suppliers, as the consumer of the company's good or service. Employees and suppliers must work in a healthy environment and should be paid precisely for the work performed. The production process must be sustainable and respect the environment, socially and environmentally. Thus, both raw material sourcing and production itself must meet sustainability parameters. Added to this is the need to offer the product or service within the same principles of respect, reaching the end consumer with transparency and honesty (clear and accurate information about ingredients or other relevant data), without health risks, within agreed terms and conditions. The ethical frameworks for business have become more demanding and complex, evolving socially before the actual development of the business and market regulations. There is a new logic of production and a new logic of consumption. The added value to products whose production complies with ethical standards in all its scale meets a demand from a more conscientious public, which demands to know exactly what it is consumed and how it was produced, what environmental impacts it generated and if the product is integrated with a fair economy chain.

166

Therefore, in this new and complex context, in order to act ethically and to fulfil its social responsibility, companies must respect the legal precepts, but also meet the demands and needs of the environment in which they operate, promoting development and not mere exploitation of everyone involved in the productive chair, producing in a sustainably way.

Challenges to overcome

• Nowadays, the new features of the globalized economy make it possible for a transnational corporation to build its facilities on different continents, seeking regions with lower labor costs, lower taxation, more flexible legal provisions. This has created a disparity in many companies. In countries with more guaranteeing legislation, workers receive benefits and enjoy a work structure that is not reproduced by the same company when it operates in another region. • One serious aspect of this corporate behavior has been the so-called export of hazards. The term, doctrinally coined for more than two decades, refers to the use of regions or countries with less economic development, where legislation is usually less strict, to set up factories for productions that generate a lot of polluting waste or expose workers. to toxic substances. • Aware of this scenario, the International Labor Organization (ILO), in 2003, wrote a “Global Strategy for Health and Safety at Work”. This paper presents fundamental ideas for developing a culture of preventive health and safety, which is only possible with a healthy and safe work environment for workers. • The ILO aims to include discussions on health and safety at work in the national agenda of each member country, as one of the main challenges of this body is the implementation of international standards in the daily lives of workers. Although ILO Conventions have been ratified in several countries, they have often not been ratified. • Making the business environment a safer, healthier and more productive place is a challenge that goes through several elements to be consolidated in the process of production and organization of the work process. It is important to pay attention to the remuneration and workload of the worker, the rational and sustainable exploitation of resources. natural materials and raw materials, in the ecological disposal of debris from production. • One of the great revolutions proposed by the fourth sector’s companies is precisely the improvement of working conditions, establishing a productive chain in which all the members are respected. This represents compliance with labor laws, but not only the cold law. There is a real concern for the work environment, the well-being of employees, so that non-explorative working hours and fair pay are stipulated. • There is also the importance of narrowing the disparity between business profit and the worker’s payment. The idea is to create a collaborative business model, in which everybody grows together, that is why it can be observed a change in the paradigm of the social responsibility of the companies. The actual way that

167

•

the companies from the fourth sector act goes beyond the traditional model, integrating in its own core and function the social awareness. However, companies in the fourth sector face a major challenge, producing, launching and staying in the market (nationally or internationally) with competitive prices, but at the same time, offering work and fair pay to their employees and suppliers; promote the economic and social development of the region in which it operates; produce, in a sustainable manner, healthy and safe products or services for consumers. It can be pointed out another important aspect of fourth sector production models, which is the sustainability matter. It is notorious and undeniable picture of environmental crisis and the need for remodeling of the depredative production form that societies built in the nineteenth and twentieth centuries. There are environmental groups that support the need for a sharp, almost complete decrease in the exploitation of natural resources. Evidently, the type of model proposed by this line of thought encounters several barriers at the practical level, with little real repercussion. Another group of scholars defends a more ecocapitalist view in an attempt to equate economic advancement and environmental preservation, with integrated and environmentally friendly production and consumption proposals. Thus, the extraction of resources would be non-aggressive, without the use of polluting agents, with efficient and ecological disposal and disposal of waste, etc. Long debates are held on how to turn sustainable development concepts and principles into practice. And studies and analysis around sustainability have led to other issues, fostering the development of the movement for environmental justice, a movement that has raised issues of great relevance about the environmental crisis, bringing human and social perspectives. Interestingly, what is meant by environmental justice is precisely the system of principles that ensure a socially equitable distribution of negative environmental consequences arising from economic and production policies, state programs, or the lack of state programs and regulations. Thus, environmental injustice is understood to mean social systems in which groups of individuals, whether racial, ethnic or class, bear a disproportionate share of the negative environmental consequences. Notably, in unequal societies, as in the case of Brazil, economic development places its environmental burden on the most vulnerable social groups, such as low-income individuals and marginalized ethnic groups. This movement, therefore, had its origins in the perception that the polluting industries were located exactly in the areas where some marginalized, predominantly African descent and poor, social groups resided. Thus, socially excluded classes lived in daily contact with polluting agents and debris, while the class considered “noble” remained in spaces with urban infrastructure. This has spurred the struggle for an equitable distribution of environmental risks, pushing for the issue to be incorporated into the political agenda. Under the precepts of environmental justice, the distribution of environmental risks and harms arising from development must be considered in the structuring of public policy. The need for the occupation of urban spaces to be

168

•

structured in a healthy, sustainable manner, with fair and democratic participation by all social strata, is poignant. In the same way, we talk about environmental justice from a broader perspective, considering the reality of most Brazilian urban centers, for instance. The most vulnerable social groups tend to reside in the most degraded areas of the urban environment, so they are more exposed to the negative effects of environmental degradation. Thus, one can identify the existence of a social debt, but also environmental, in relation to this portion of the population. Despite the great importance of applying environmental justice at a local level, this precept tends to expand worldwide, as the levels of integration and globalization are increasing every day. As quoted by Herculano (2002), the concept of environmental justice comes from the early experience of social movements and the fight of poor citizens and socially discriminated and vulnerable ethnic groups regarding their greater exposure to environmental hazards as they live in the vicinity of chemical and radioactive waste dumps or industries with polluting effluents. Moreover, as Fensterseifer (2016) states, there is an environmental debt, just as there is also a social debt, existing in the relationship between industrialized countries (largely responsible for, for example, global warming gas emissions) and developing countries, which are subject to the same environmental risks caused by climate change, regardless of whether they have contributed significantly to pollutant emissions and not benefited to the same extent from the riches generated by industrial production in developed countries. In a way, the same process of collectivization or socialization of environmental damage and degradation can also be identified in the relationship between the poor and the rich at the domestic level of national states, where few have access and are beneficiaries of consumer goods extracted from the production process, notwithstanding the burden of environmental degradation resulting from them. Environmental justice thus implies equal access to natural resources and environmental quality (FENSTERSEIFER, 2016). No great ramblings are necessary about the fact that the advantages over economic development are particularized. Profits and privileges reach a few individuals. However, the environmental risks generated by the production and consumption processes affect everyone, whether they are producers or not, consumers or not of the goods produced. The picture of inequality in which vulnerable social strata are most exposed to negative environmental impacts is also repeated in the global framework. Economically stronger countries produce and consume more, but environmental impacts are centered on less developed countries. In pursuit of cost reduction and profit maximization, taking advantage of an interconnected and globalized world, industries concentrate their production lines in less economically developed countries, where legislation is usually more flexible, taxes lower, the cheapest labor force. The administrative headquarters remain in their countries of origin, but the manufacturing of the products (effectively polluting part of the production line) takes place in other parts of the world. There is a notorious and undeniable

169

•

picture of exclusion of consumer goods, associated with greater exposure to environmental damage in countries with less economic strength. It can be inferred that there is an unbreakable correlation between environmental quality (encompassing the parameters of sustainable development and environmental justice) and basic human needs (access to decent living, described in fundamental rights). All social and environmental thinking is marked by the correlation between environmental protection, sustainable development and environmental justice. Thus, environmental justice and its normative framework aim to reinforce the fundamental right to the environment in its democratic and redistributive dimension and intrinsically related to the dignity of the human person, a value that radiates through the legal system and also integrates social and social responsibility and the State's environmental policy towards its citizens. The fourth sector also responds to the demands related to environmental justice, reinforcing the importance that this economic sector can represent in the world, creating the possibility of realizing a series of ideals that were previously mere philosophy, with no practical applicability. Nevertheless, it is essential that the legal framework follow closely these changes and these demands, since the adaptation to the existing reality is necessary, also to build a favorable and supportive context, nationally and also internationally. Furthermore, about the necessary formalization in the law for the For-Benefit organization, it is pointed at the Executive Summary about The Emerging Fourth Sector that the support of law will ultimately be required.162

Therefore, it is also fundamental that the legal frameworks, through tax benefits and legal parameters that could actually encourage and support new corporate models, adapt and renew themselves, following this change and creating a favorable environment to the establishment of this kind of entrepreneurship. At this point, it is important to recognize the efforts of the Iberoamerican General Secretariat (SEGIB), which acts as an international body that seeks to stimulate the development of this model of just and sustainable economy in the Iberoamerican space, stimulating the change of paradigm among this region. The work of this international body, that represents iberoamerican countries, contributes to the dissemination and promotion of this new economic model,

162

As quoted at the Executive Summary: ¨For the For-Benefit organization to move from an idealized model to widespread cultural reality, support in the law will ultimately be required. Substantive changes are likely needed in our corporate, non-profit, intellectual property, tax, securities, and consumer protection laws at the federal, state and perhaps even local levels. These changes might happen through the courts, legislatures, or regulatory agencies. When the For-Benefit model becomes enshrined in law, it will represent an inflection point in the evolution of the Fourth Sector, signifying that the Fourth Sector has in a real sense arrived.

170

through the mapping of companies that are suitable for the sector, the institutional and governmental dialogue and the creation of bills that can adapt aspects related to the legal functioning, including tax incentives, for example. The project is structured in collaboration with the World Economic Forum as well as with other international actors. Companies in the fourth sector are in line with a new logic, equalizing economic growth with social and environmental needs. These companies aim to structure and foster an economic system that is at the service of people, that generates business profit, but also collaborates and develops the environment of the company, so that the society and the environment in which it operates are respected and supported then in their needs. The model of production and consumption developed in nineteenth and twentieth-century societies created a panorama of inequality, with an economic system that creates gaps of poverty and misery for many, luxury and wealth for the few. It is brave and innovative to invest and think about the business structure where peoples' rights and environmental concerns are at the heart of the business structure. This position of investors in the fourth sector is fully in line with the precepts and principles upheld by human rights, giving practical application to these rights. It can be observed that yet there are several challenges that must be overcame, but it can also be identified and effort in the international context to stimulate this new paradigm of the social responsibility, which have generated a new sector to be added into the traditional economic classification system.

Conclusion

The whole social and economic conjuncture experienced nowadays leads to the observation that the economic systems and the models of organizations and institutions need a remodeling. The economic models practiced still retain striking features of the structures developed in the nineteenth century. Indeed, the production structure was based on old thinking parameters, where the limitation of raw materials, contamination and scarcity of natural resources were simply not considered. Topics such as climate change, human rights, labor rights, consumer rights and globalization have been on the agenda only throughout the twentieth century, but there is still a necessary way to achieve these ideals. It must be acknowledged that modern capitalism has produced prosperity and improved the quality of life for thousands of people. The notions of social welfare were raised and collective structures were created in unprecedented parameters. Paradoxically, these same capitalist structures today lead to complex and difficult to dissolve economic, social and environmental challenges. These challenges ultimately have a great common cause: traditional structures are underpinned by sectoral and self-centered ideologies and actions. Even if social objectives were achieved on a macro scale, the main intention remained to favor a specific group, without concern for the unfavorable consequences or conditions outside the circle of interest. With the new paradigms for business ethics, we seek exactly an economic performance that envisions and meets the needs of everyone involved in the

171

production chain, but also be aware of their social and environmental environment. This thinking is in line with the United Nations Sustainable Development Goals, designed to protect the environment and reach a world where all humanity has well-being and quality of life, with their minimum rights assured. The performance of the fourth sector is of great importance to achieve these goals. Achieving the planned goals by 2030 requires a drastic change in the logic of the private sector, adjusting corporate activity to the new parameters of corporate social responsibility, and definitively instituting ecologically sustainable production models and products. According to information published by Iberoamerican General Secretariat (SEGIB), the new business forms that form the fourth sector already account for about 10% of gross domestic product in Europe and the United States. However, this growth is not enough to restructure the economy, transforming it into a space where there are fair and sustainable forms of production and consumption. Similarly, this figure is not enough to reach the targets set for 2030, especially in regions where social demands are high. However, it is already possible to identify the intention from the private initiative itself, as well as the demand from citizens and consumers, regarding the adaptation of the productive and economic processes. Thus, the state and the legal structure must respond to this movement and thus provide positive responses to the change already begun, through incentives and appropriate legislative regulation. The entrenched state bureaucracy cannot be a hindrance to this process and the legal system must urgently accompany and drive this change. With more complex and dynamic societies, the new social relations drive the adaptation of the legal sciences, so that the legal system adequately meets a series of new demands. Among these new demands are the normative and constitutional provisions that ensure the right to a healthy and balanced environment. However, with the economic pattern of production and consumption, it may seem difficult to effect these normative innovations. Considering the new legal demands for environmental protection, the fourth sector also assists in the fulfillment of these ideals. Thus, it can be noticed the magnitude and importance of fostering and boosting the fourth sector, which is part of the response to social, labour and environmental demands, besides the promotion of human rights. From the above, it is observed that this movement has real ideologies and possible objectives. Change is underway, but it needs to be supported and nurtured so that the legal and economic environment allows companies to produce socioeconomic benefits, helping to develop the social environment in a sustainable way. Undoubtedly, the fourth sector of the economy is part of the new global paradigm of corporate social responsibility.

References 1. ANDRĂ&#x2030;, R., 2012, Assessing the Accountability of the Benefit Corporation: Will This New Gray Sector Organization Enhance Corporate Social Responsibility?, Journal of Business Ethics No. 110, pgs. 133â&#x20AC;&#x201C;150. Apud: Vives, Antonio, Cuarto sector: Hacia

172

10.

11.

12.

13.

14.

una mayor responsabilidad social empresarial. Available at: https://blogs.deusto.es/innovacionsocial/cuarto-sector-hacia-una-mayor-responsabilidad-social-empresarial/. Access: 8th August de 2019.; ANESVAD. El nacimiento del Cuarto Sector. www.anesvad.org. Available at: https://www.anesvad.org/es/actualidad/cuarto-sector-ong-rsc-rse/. Access: 8th August de 2019; BENJAMIN, Antonio Herman de Vasconcellos. Meio Ambiente e Constituição: Uma primeira abordagem. Available at: https://core.ac.uk/download/pdf/79061995.pdf. Access: 8th August de 2019; DEUSTO INNOVACIÓN SOCIAL. Cuarto Sector: hacia una mayor Responsabilidad Social Empresarial. Available at: https://blogs.deusto.es/innovacionsocial/cuartosector-hacia-una-mayor-responsabilidad-social-empresarial/. Access: 10th August 2019; FREITAS, Vladimir Passos de. Direito Administrativo e Meio Ambiente, 3ª edição, Curitiba: Juruá, 2001. p. 33, apud: BENJAMIN, Antonio Herman de Vasconcellos. MEIO AMBIENTE E CONSTITUIÇÃO: uma primeira abordagem, 2002. Available at https://core.ac.uk/download/pdf/79061995.pdf. Access: 10th August 2019; GOLDMAN, Daniel. Entendamos qué es El Cuarto Sector. Mentoría en Innovación. 18 de mayo de 2012. Available at: http://www.innmentor.com/2012/05/18/entendamos-que-es-el-cuarto-sector/. Access: 8th August de 2019; HAONAT, Angela Issa. Justica Ambiental: Uma perspectiva a partir da obra vidas secas. In: Miranda, Jorge. Gomes, Carla Amado. (Coord.). Diálogo Ambiental, Constitucional e Internacional. Vol. 8. Escola Superior da Magistratura Tocantinense: Brasil, 2017. HERCULANO, Selene. Riscos e desigualdade social: a temática da Justiça Ambiental e sua construção no Brasil. UFF/ICHF/GSO-LACTTA. Outubro de 2002. Available at: http://www.ppgcasa.ufam.edu.br/pdf/Herculano_2002_justica_ambiental.pdf. Access: 20th August de 2019; INHOBASQUE. Cuarto sector. Available at: https://www.innobasque.eus/microsite/trayectoria/tematicas-trabajadas/cuartosector/. Access: 8th August de 2019; MORAES, Maria Celina Bodin de. O conceito de dignidade humana: substrato axiológico e conteúdo normativo. In: SARLET. Ingo Wolgang. (Org.) Constituição, direitos fundamentais e direito privado. Porto Alegre: Livraria do Advogado, 2004; PEREIRA, Tatiana Cotta Gonçalves. Sustentabilidade e justiça ambiental na Baixada Fluminense: identificando problemas ambientais a partir das demandas ao Ministério Público. Caderno Metrópole, São Paulo, v. 15, n. 29, pp. 339-358, jan/jun 2013. Available at https://revistas.pucsp.br/metropole/article/view/15828/11852. Access on 27.08.2019; RAZ, K. G., 2012, Toward an Improved Legal Form for Social Enterprise, New York University Review of Law & Social Change, 36, pg. 283. Apud: Vives, Antonio, Cuarto sector: Hacia una mayor responsabilidad social empresarial. Available at: https://blogs.deusto.es/innovacionsocial/cuarto-sector-hacia-una-mayorresponsabilidad-social-empresarial/. Access: 8th August de 2019; SEGIB (Secretaría Geral Ibero-Americana). Projeto do Quarto Setor. Available at: https://www.segib.org/pt-br/category/cuarto-sector-pt-br/. Access: 8th August de 2019; VIVES, Antonio. El cuarto sector: empresas nacidas con responsabilidad - Diario Responsable. Available at: https://diarioresponsable.com/opinion/15790-el-cuartosector-empresas-nacidas-con-responsabilidad. Access: 10th August de 2019;

173

15. VIVES, Antonio. Cuarto sector: Hacia una mayor responsabilidad social empresarial. Available at: https://blogs.deusto.es/innovacionsocial/cuarto-sector-hacia-unamayor-responsabilidad-social-empresarial/. Access: 8th August de 2019; 16. CONCEPT WORKING GROUP. Supported by The Aspen Institute and the W.K. Kellogg Foundation. The Emerging Fourth Sector. 9th September 2009. Available at: https://www.aspeninstitute.org/publications/emerging-fourth-sector-executivesummary/ Access: 8th August de 2019.

174

Anti-Dumping Agreement: A Change with no Change Ishita Thakur Symbiosis Law School, Noida, India ishita1269@gmail.com

Trushita Srivastava Symbiosis Law School, Noida, India trusha.shrivastava.ts@gmail.com

Nandini Agarwal Symbiosis Law School, Noida, India agrawalnandini81@gmail.com

Abstract. Dumping can be seen to have ancient roots; the timeline of anti dumping however, can essentially be traced in line with the onset of globalization. WTO defines dumping as a phenomenon of international price discrimination. The relation between anti-dumping and antitrust has always been a contentious issue in all aspects at both the legal as well as the economic front. The Anti-Dumping Agreement, an agreement on Implementation of Article VI of GATT 1994, authorizes importing countries to impose duties, at times even beyond the bound tariff rates, in a situation where dumping might materially damage the market of a domestic industry. The objective remains to analyze various socio-economic factors which work for and against the concept of anti-dumping and draw conclusions with regards to the effectiveness of the ‘Anti-dumping Agreement” in the modern era. This paper is an analysis of how the growth of global trade led to an augmentation of tactics like dumping and the anti dumping policies developed therein. The paper also attempts to ascertain the legitimacy of dumping as a practice, the reasons behind it being equated to ‘trade terrorism’ but at the same time, finding considerable sympathy by the WTO. This paper will elucidate the exploitations of anti-dumping policies by domestic firms to block certain imports from other countries by claiming that they are being "dumped" and subjecting them to higher import duties. Since anti-dumping is a trade remedy for industries injured by import competition; thus, economic conditions that forcibly lead to dumping in certain cases will also be scrutinized and consequently the economic repercussions in the domestic market will be highlighted. Keywords: WTO, Trade Terrorism, Countervailing Duties, Fair Comparison, Non-tariff trade barriers.

175

Introduction

The utopian idea of a free trade setup has been an aspiration of trade liberalists for a very long time but the main reductions of tariffs and other barriers that led to an increase in a liberalized international trade basically came about after the Second World War. In recent years, however, while tariff and non-tariff barriers to trade have been falling steadily in the world, anti-dumping measures have proliferated (Zhu 1997, 936). Dumping, as defined by World Trade Organization (hereinafter mentioned as ‘WTO’) is when “a company exports a product at a price lower than the price it normally charges on its own home market” (WTO 2017). It is not necessarily predatory pricing, but an act of “underpricing defined as pricing of a product lower than its 'normal value” (Editorial EPW 1999, 1303). Nevertheless, it often results into predatory pricing which may harm the domestic industries. Antidumping (hereinafter mentioned as ‘AD’) was therefore used to avoid such practices and protect home industries against unfair competition. The legitimacy of AD practices is debatable in view of the free trade setup espoused by WTO; yet it has authorized domestic countries to take actions against dumping, by way of the ‘Anti-Dumping Agreement’ (hereinafter mentioned as ‘AD-A’). This agreement specifies the procedures and particulars to rectify the price discrepancy created, after enterprises commit to dumping, in order to bring it closer to the ‘normal price’ by way of imposing import duties. These duties are allowed to be imposed, not only in the situations where a comparatively lower price is charged, but also where it is seen to cause a certain ‘material injury’ to the domestic industry. It has proved to be an efficient policy for defending domestic industries against some of the competition issues arising out of trade liberalization. Some scholars, however, point out that the initiation of Anti-dumping duties (herein after mentioned as ‘duties’) came about as a technique by the developed countries to protect their domestic markets against the low-priced imports (Rai 2004). When Jacob Viner wrote about AD in 1923, one of the earliest writings on the issue, he hardly anticipated this rectifying policy, to pose the kind of problem it ended up creating about a century after its making. Although the inter-country dumping issues were present, they were fairly sparse and almost unaccounted for before the 1980s. The main reason for this is that prior to 1980 it was not required for the countries to report to the General Agreement on Tariffs & Trade (hereinafter mentioned as ‘GATT’) before initiating AD actions (Blonigen et.al. 2001, 4-5). This meant that countries could resolve the AD issues internally or bilaterally. The traditional users of AD (countries like Australia, Canada, the European countries, New Zealand and the US) accounted for 95% of all the AD cases around the world. This supported the suspicion of developed countries exploiting AD methods to further restrict new entrants from entering into their internal markets. Canada, in fact, in 1904 (followed by New Zealand in 1905, Australia in 1906 and South Africa in 1914) was the first country in the world to explicitly pass legislation on AD. In countries like the US, on the other hand, AD measures were dependent on antitrust laws like the Sherman Act of 1890, which prohibited the general consequence of monopolization in the market. (Raju 2008) One of the

176

most interesting historical examples of dumping and AD was during the time of colonialized India; the cloth manufactured in Britain was given free entry in the Indian markets and was sold at an extremely low price. On the other hand, the cloth produced in India was taxed heavily when it entered the British markets. As a result, within a few years, India from being an exporter of cloth became an exporter of raw cotton along with being an importer of British clothes. This turnaround made a huge impact on the Indian handloom weaving industry leading to its virtual collapse. Such exploitative use of dumping and anti-dumping was common throughout the colonial period. The AD cases by the traditional users dropped to 80% between 1985 and 1992, suggesting an increase in the use of international AD laws by other countries, as a weapon to protect their domestic interests (Tao 2006) The new users were mainly developing countries like India, South Africa, Brazil and Mexico which lacked a separate legislation to counter dumping in their own markets by other countries as well as the AD actions initiated against them by the traditional users. The switch from traditional to new users can be attributed to the attempt of new users to protect their domestic industries, for which duties acted as a “potent weapon”. As Blonigen & Prusa pointed out, traditional users were now more likely to defend themselves against AD allegations than they were to initiate actions. (Blonigen et.al. 2001, 4-5) As a trade policy instrument, the AD actions acquired increased importance and have grown rapidly with the establishment of WTO in 1995. However, even before the establishment of WTO, the history of AD had seen several legal developments. The Kennedy Round of the GATT in the mid-1960s, which led to the establishment of the GATT Anti-dumping Code of 1967 (earlier defined as ‘ADA’, was the first GATT meeting to have dealt with dumping as an issue. It expanded the horizon in the field which earlier was limited to the original text on AD which was the Article VI of the GATT. This AD-A was further elaborated in the Tokyo Round Code and the Uruguay Round Code. The Tokyo Round, concluded in 1979, contained numerous amendments to the AD statute. The amendments essentially changed the rules of the game. Almost as many cases were filed in the first three years following the Tokyo Round as during the entire decade of the 1970s. (Blonigan et.al. 2001, 4-5) With 123 countries participating, the Uruguay Round of 1986-1994 was considered a great achievement for the issue. WTO stated it as “the biggest reform of the world’s trading system” after the World War II (herein after mentioned as ‘WWII’) since the establishment of GATT. The Uruguay Round endorsed the culmination provision, codified the concept of the AD duty as a cost and did nothing to restrain use of price undertakings. These are some of the reasons that led to the increasing use of AD actions in the post WTO era. (Bhat 2004).

The Legitimacy Debate

There are plethora of arguments both for and against the AD practices and laws. Adam Shortt, in 1906, gave the economic rationale behind dumping, calling

177

it a “familiar accompaniment of overproduction, of surplus stocks, forced or bankrupt sales, change of fashion, and a score of other circumstances” which has the “general effect of rendering goods unsalable” (Shortt 1906 250). Despite its economic justification in some cases, dumping at large continues to be regarded as “trade terrorism” by its critics; due its use by some countries as a weapon of choice, often triggering controversies in the world of international trade. Countries often dump products to eliminate competition, secure monopoly system and increase their share of international exports. (Obalade 2004 234). Dumping is thus, many a time considered synonymous to predatory pricing which is often used as a technique by countries across the globe to establish their economic supremacy. The supporters of AD measures argue for protection of home industry against unfair competition. AD, thus, was to avoid practices that might be injurious to domestic industries. However, the exponents of free trade want to ignore it either as one of the effects of the free-cross border trade in which plus points outweigh the small negative effects, or support it on the ground that consumers are benefitted by getting goods at the cheapest possible price (Rai 2004 1). The policies, however, can also be supported by the fundamental objectives of WTO recognizing the organization as an endeavor to raise the standards of living and to promote sustainable development. It can be stated here that the main driver behind AD is to facilitate special protection for the domestic industries in order to safeguard them from imports. It is a basic protection provided to domestic industries against unfair trade. For instance, after receiving a petition from a coalition of eight U.S. tile producers claiming injury, the U.S. Commerce Department opened its anti-subsidy and antidumping investigation (hereinafter mentioned as ‘investigation’) of Chinese tile imports and imposed preliminary duties on them ranging from about 104% to 222%. (Reuters 2019) The deficiency in the AD-A can be attributed to the implication of one party always suffering at the cost of the other. These regulations are implemented to entertain the requirements of domestic industries but foreign trade suffers because of them. The main objective of the act was meant to maintain the economic trade equilibrium throughout the globe, but somewhere it grants domestic countries utmost power to exercise their control in order to protect their interest. Sadly, it will never be a win-win situation for the parties involved. On the contrary, dumping will cause damage to some countries and there may be no magical remedies. (Obalade 2004 239) In addition, the AD-A(s) are also fundamentally unfair, because it bars the parties to conduct trade of their choice i.e., it bars the practice of “fair trade”. Since initiation of AD action is a law that fosters unethical business practices and basically a rent-seeking activity. It seeks special privileges from the government to further its own advantages at the expense of general public and competing foreign firm. (Bhat 2004) On the other hand, it can also be argued that AD is necessary to protect the firms from instances where it can turn into predatory pricing and acts like a trade corrective measure. Though AD measures may cause consumers to suffer because they are intended to pay more for the same products, but to avoid the monopoly of the international producers over the domestic market, such measures are essential. Flipping the coin to the other side, the practice of dumping cannot be

178

eliminated in the world market but these can be controlled by the implication of certain taxes and other barriers allowing the domestic industries to maintain their existence in the market of the home country.

Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade, 1994

AD measures are unilateral remedies which may be applied by a Member after an investigation in accordance with the provisions of the AD-A to ascertain if an imported product was, in fact, “dumped” and that the dumped imports caused material injury to the domestic industry producing the like product. The AD-A by WTO does not pass judgment; instead it focuses on defining how the government of a Member country can, and cannot react, to dumping. The legal definitions are more precise. But broadly speaking, the AD-A allows governments to act against dumping where there is genuine ‘material’ injury to the competing domestic industry. In order to do that the government has to be able to show that dumping is taking place, calculate the extent of dumping (how much lower the export price is compared to the exporter’s home market price), and show that the dumping is causing injury or threatening to do so. (WTO 2017) 3.1

Article VI – GATT 1994: Anti-Dumping and Countervailing Duties

The Article VI comes with the limitation that “anti-dumping duties are not applied as a protectionist measure and their purpose is curative rather than punishment” (Rai 2004 4) Article VI of GATT and the AD-A try to ensure that free markets do not get distorted by government protection and at the same time recognizes the right of a government to protect from injury its domestic industry confronted with unfair trade.(Rai 2004 5) Only foreign goods introduced into the market at a price less than its normal price and materially injuring an established industry is condemned. It is considered less than normal price when the price of the product exported from one country to another (a) Is less than the comparable price, in the ordinary course of trade, for the like product when destined for consumption in the exporting country, or, (b) In the absence of such domestic price, is less than either (i) The highest comparable price for the like product for export to any third country in the ordinary course of trade, or (ii) The cost of production of the product in the country of origin plus a reasonable addition for selling cost and profit. (Rai 2004 427) 3.2

Anti-Dumping Agreement- Some Important Articles-

The WTO provides guidelines on majorly two grounds for investigations and AD actions: ‘substantive’ and ‘procedural’.

179

PART I. Article 1- Principles- defines the basic principle that AD measures provided for in the article VI of GATT 1994 shall only be imposed until after it determines, pursuant to an investigation conducted in conformity with the provisions of the AD-A, that there are dumped imports, material injury to a domestic industry, and a causal link between the dumped imports and the injury. Article 2- Determination of Dumping- provides for substantive measurements to determine dumping which is calculated on the basis of a ‘fair comparison’ between the price of the good in the domestic country and the price at which it is traded (export price). This article establishes provisions for calculation and explain how element of ‘fair comparison’ must be made. Article 3- Determination of Injury- contains rules regarding the determination of material injury caused by dumped imports. The basic requirement for determinations of injury is that there is an objective examination, based on positive evidence of the volume and price effects of dumped imports and the consequent impact of dumped imports on the domestic industry. Article 4- Definition of Domestic Industry- puts forward a definition for the purpose of identifying injury and causation. It contains special rules for defining ‘regional’ domestic industry for geographically isolated areas. Article 4 also establishes that domestic producers may be excluded from consideration as part of the domestic industry if they are “related”. PART II. Article 16 Committee on Anti-Dumping Practices- establishes the Committee on AD Practices, and sets forth requirements for Members to notify without delay all preliminary and final actions taken in investigations, and notify semi-annually all actions taken during the relevant reporting period. (GATT 1994) Article 17- Consultation and Dispute Settlement- establishes that the Dispute Settlement Understanding is applicable to disputes under the AD-A. However, Article 17.6 establishes a special standard of review to be applied by panels in examining disputes in AD cases with regard both to matters of fact and questions of interpretation of the AD-A. PART III. Article 18- Final Provisions Article 18.3 establishes the effective date of the AD-A, providing that it is applicable to investigations and reviews of existing measures initiated pursuant to applications made on or after the entry into force of the AD-A. Article 18.4 requires Members to bring their laws into conformity with the AD-A by the date of entry into force of the AD-A. Under Article 18.5, Members are required to notify their AD laws and regulations to the Committee. (GATT 1994)

180

Effectiveness of Anti-Dumping

As a trade policy instrument, the AD measures acquired increased importance and have grown rapidly with the establishment of WTO in 1995.Despite the increase in the use of AD measures between 1970 and 1990, many did not consider AD initiation as a genuine trade problem because it was an instrument in the hands of very few countries, which were the ‘traditional’ users. (Raju 2008 23) But the trend since then has observed a paradigm shift to the extent that, in the present economic scenario dumping is regarded as a form of ‘trade terrorism’ with the ineffectiveness of the AD-A giving rise to significant changes in the global trade. In the present economic conditions, use of AD provisions has become more difficult to justify. As multilateral trade reforms have greatly reduced trade barriers, the result is a more liberalized global market. Increase in fluidity of transboundary investment, steep fall in import duties, removal of non-tariff trade barriers (NTB), outlawing of grey area measures (specifically voluntary export restraints and managed trade), and stricter subsidy codes has not left much scope for the governments to protect their domestic industries in the face of cut-throat foreign competition. (Bhat 2004 4) Originally designed as a weapon against predatory and powerful companies, AD measures have often been used against efficient enterprises, especially from developing countries; their role has shifted from ensuring fair competition to protecting inefficient competitors. Confronted with such situations, some developing countries such as China are formulating their own AD legislation. (Zhu 1997 937) Ambiguity of the definition, fragility of economic rationale, lack of transparency in implementation and certain operational weaknesses are just some of the criticisms faced by the AD provisions (Bhat 2004 6). Material injury is crucial and a link between the imports and material injury has to be established to determine dumping. This has been accepted by countries all over as a principal for dumping to be actionable. The AD–A has further removed disparities between the approaches by different countries. But there is a major problem in the area as after defining the rules in detail, the WTO itself is unable to play the expected role in mediating the AD cases and preventing filing of unworthy cases. Dumping is an industry or country-specific action which results in different interpretations of the market variables. In the absence of a uniform interpretation, it is difficult to identify well-defined applications which can cover all the cases. Due to the complexities involved in the issue it’s difficult to distinguish whether the loss to domestic producers resulted from their own inefficiency or from the allegedly dumped products (Zhu 1997 936). A weak case can cause irretrievable damage because as soon as the suit is filed, there is a major impact on the industry or the country which leads to loss in market share. The consequent infliction of anti-dumping suit tends to penalize some of the efficient foreign producers. The bias in the definition of dumping favors the party imposing anti-dumping duties (Bhat 2004 5) Among all the issues negotiated under the Uruguay Round AD was the most contentious. The perception of developed countries is limited and they viewed the AD-A as such against the traditional non-users that is primarily developing countries. The exploitation of AD provisions has adverse effects on the developing countries as their economies and trade chains are less

181

diversified. If their exports are hampered by such dumping measures, a massive impact is observed in the form of reduction in foreign exchange and economic development. For developing or transitional economies undertaking economic reforms, anti-dumping duties on their exports already priced by market forces only serve to hinder their painful process towards a full market economy. (Zhu 1997 937) Further, due to the increase in AD cases in modern economies, WTO finds itself swamped due to over-concentration on operational trivialities and thus is failing to achieve its global objectives. The analysis of various arguments and thoughts in favor of and against the philosophy of AD compels one to believe that it is a complex scenario and more than the economic or legal justification AD measures are used more to protect domestic industries from foreign competition. The recent trend in initiations is heading downward. (Raju 2008 25) One can always consider introducing ‘safeguards’ into the system which will be much more transparent than the current system and have stringent policies for the identification of material injury to prevent initiation of ‘meritless’ cases. Further, these ‘safeguards’ should incorporate the notion of predatory pricing {absent in the present interpretation by WTO} when defining dumping. The provisions shall put the burden of proof on the party which initiates the suit for dumping.

The Case in India

After the liberalization in 1991, when trade proliferated, so did the AD scenario in the country, so much so that India soon became a major user of the anti-dumping measures. It, however, officially entered the AD club in the year 1992, by filing its first petition. India made 474 initiations making it the largest user of this measure (Raju 2008 1). Most of these were found to be against China. AD and countervailing duties are imposed in India under the Customs Tariffs Act 1975 (hereinafter mentioned as ‘Act’). The act and rules are on the lines of the respective GATT Agreements on AD and countervailing duties. The Directorate General of Anti-Dumping functioning under Ministry of Commerce is entrusted for administration and anti-dumping investigation. Section 8(B) of the Act, was introduced to make provisions for imposition of safeguard duties as per the provisions of the WTO AD-A on safeguards. The act provides for imposition of safeguard duties on products being imported in increased quantities such as to cause or threaten to cause serious injury to the domestic industry that produces directly or indirectly a competitive product (Editorial EPW 1999). The Supreme Court in S&S Enterprise v DA (2006) 10 SCC 368. found that the sole purpose of imposing duties is to control unfair trade practices undertaken by the exporters of the other country, to sell the goods at comparative low prices as been prevailing in the market of that country so as to cause injury to its domestic market. This judgment was passed in accordance to Section 9(A) of the Act and rules given there under. The court further cleared its stand in the case Reliance Industries Ltd. v DA 2006 (10) SCC 368 by saying that the purpose of Section 9A of the Act is to

182

maintain level playing field and prevent dumping so as to ensure healthy competition in the market. AD regulations of India mainly focus on safeguarding interests of domestic industries rather than benefiting all as a fair investigative process. In the case of United States-Anti Dumping and Countervailing Measures on Steel Plate from India, it was asserted that according to the Article 15 of WTO (which addresses the ‘special situation’ of developing countries providing for exploration before applying duties if they can potentially affect the essential interests of such member countries), it was noted that the developed countries, in fact, have an ‘obligation’ to conduct such exploration before targeting developing countries. In spite of the mentioned well-defined rules there is no gainsaying the fact that there is widespread abuse of AD rules. This has hit India hard; its exports are increasingly subject to such measures in recent times. In addition, the increased presence of India in global legal disputes is risky for its international image. Excessive AD initiations by a country may result in its perception turning to that of a protectionist country, in times when the economy is more inclined towards liberalized setup.

Conclusion

The WTO in fact is quite uncertain on its contention on the issue of dumping. Regardless of this, it provides provisions for its regulation by way of the GATT and the AD-A. The intention behind the implementation of such regulations was only to provide for a provision in case dumping turns into predatory pricing. If dumping is not curbed then it will hit the market and firms hard, which will lead to deterioration of domestic industries allowing international firms to conquer domestic market. The WTO has a total of 164 member countries each of which implement their own national AD policies in accordance with the general guidelines specified by GATT/AD-A. The WTO only provides broad guidelines and it is up to each country to interpret these guidelines. The implication of this is a mass discrepancy amongst the laws of different countries. The problem arises because even after having defined the rules of the game in detail, the WTO finds itself unable to play the expected role in settling anti-dumping cases and preventing initiation of 'meritless' cases. (Editorial 1999) In our opinion, AD initiations need to be brought about more carefully than they currently are since they tend to have detrimental effects on the exporters, importers, domestic firms and also consumers. AD actions can have several negative effects on exporters. An investigation is rigorous and time consuming. Even in cases of it being meritless, the initiation alone can cause panic among buyers as soon as it is initiated and can lead to a drop-in import of that product. The importer is likely to look for new suppliers if it senses that its current supplier might be in a position to have duties imposed on its products which are to be further circulated in the trade chain. For the domestic industry, dumping can mean its extinction. It may have in-built competitive disadvantages, such as higher labor costs and environmental standards, which mean that it cannot compete with products coming from other countries. (Natalie McNelis 2007) Consumers are the

183

ultimate sufferers who regardless have to purchase goods for what they could have had a much cheaper alternative. AD-A can hardly be seen, under the light of the above-mentioned contentions, as a win-win situation; it will always hamper the interest of one of the parties involved in the channel. AD measures are meant to protect the interest of everyone, involved in this trade system with the motive of sustainable development. But with the politics and other exploitations the basic purpose of imposing the measures is rarely met. This is the basic dilemma over the practice of AD.

References 1. Adam Shortt, the Anti-Dumping Feature of the Canadian Tariff, 20 Oxford University Press 250, 20-258(1906). 2. Blonigen, Bruce A. and Prusa, Thomas J., Antidumping (July 2001). NBER Working Paper No. w8398. Available at SSRN: https://ssrn.com/abstract=278031 3. Bhat, T P. (2004) Spread of Anti-Dumping-Containment and Reform, Foreign Trade Review, 39(2): 65 4. Editorial. (1999) Dump Anti-Dumping. Economic and Political Weekly, 34(22):1738. 29 May 5. Rai, Sheela (2004). Recognition and Regulation of Anti-Dumping Measures Under GATT/WTO (Lucknow: Eastern Book Company). 6. Raju, K.D. (2008) World Trade Organisation: Agreement on Anti-Dumping: A GATT/WTO and Indian Jurisprudence. Kluwer Law International 7. Reuters (2019) U.S. Sets Preliminary Duties of up to 222% on Chinese Ceramic Tile, September 10, https://in.reuters.com/article/us-usa-trade-china-tiles/u-s-sets-preliminary-duties-of-up-to-222-on-chinese-ceramic-tile-idINKCN1VV1TV 8. Tao, Meng (2006) Dumping and antidumping regulations with specific reference to the legal framework in South Africa and China, University of the Free State, http://scholar.ufs.ac.za:8080/xmlui/bitstream/handle/11660/1542/TaoM.pdf?sequence=1&isAllowed=y 9. Natalie McNelis (2007) Anti-Dumping Law Explained, WilmerHale LLP https://content.next.westlaw.com/Document/I6f84afede82f11e398db8b09b4f043e0/View/FullText.html?originationContext=document&transitionType=DocumentItem&contextData=(sc.Default) 10. Obalade, Timothy A. Falade (2014). Analysis of Dumping as a Major Cause of Import and Export Crises. International Journal of Humanities and Social Science, 4 (5):233239. 11. WTO. (2017). Understanding the WTO: The Agreements, Anti-Dumping, Subsidies, Safeguards: Contingencies, etc., (Sep. 23rd, 2017, 7:30) https://www.wto.org/english/thewto_e/whatis_e/tif_e/agrm8_e.htm. 12. Zhu, Xiaohua (1997) Anti-Dumping Measures: Time to Roll Them Back. Economic and Political Weekly. 32(18): 936-37.

THE JURIS EN CONFERENCE ON INTERNATIONAL LAW, 2020 The Conference Papers are available at internationalismeditorials.org