South Asian Review of International Law - Volume 1 (2020)

Volume 1 (2020) By the South Asian Journal of International Law An Editorial Venture by Internationalism

Š Internationalism – AbhiGlobal Legal Research & Media LLP, 2020.

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Editors: Abhivardhan, Aryakumari Sailendraja, Bulbul Khaitan, Sulekha Agarwal, Udomo Ali & Nikhil Dongol.

ISBN: 978-81-947926-1-1 (Online) ISBN: 979-86-834374-1-1 (Paperback) The Cover of the book was made by Ion Tudor-Gheorghe, our Chief Technical Manager.

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First edition, Volume 1, 2020.

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Preface International Law is the field central to state sovereignty and its approaches of power. The 21st century has witnessed International Law to be a dynamic and actorcentric field in a more comprehensive perspective. The role of Europe and the Atlantic does not only dominate the popular diplomatic and legal discourse, because the role of China, Russia, the Asia-Pacific region and Africa will balance and reamalgamate the concept of power and relations. The role of South Asia therefore is central to the global economic and political order, to study and understand the epistemological and anthropomorphic role of the global rules-based international order.

The South Asian Journal of International Law, our international law editorial venture, endorses such relevant scholarship and policy research by students, researchers and professionals interested and committed to the field of international law and relations, from their doctrinal to non-doctrinal underpinnings. The Volume 1 (2020) of the South Asian Review of International Law is committed to publish a set of articles and case comments, which range from maritime security to international cyber law. We also accept submissions central to the pure international legal theory and international relations as a field of strategy and approach.

I would like to express my deepest of gratitude to our esteemed Managing Editors, Associate Editors and the team of extraordinary Peer Review Board Members for their contribution towards the book series and its efforts.

Abhivardhan Editor-in-Chief South Asian Journal of International Law.

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Acknowledgments Mr Marc Finaud Head of Arms Proliferation, Geneva Centre for Security Policy, Switzerland Mr Anil Thakur Trustee, Indian Society of Artificial Intelligence & Law, India Mr Akash Manwani Associate Editor, Indian Society of Artificial Intelligence & Law, India

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Table of Contents Analytical Articles.

1. Territoriality in the Reign of Cloud Data: An Anachronism Mehreen Mander & Punishk Handa, NALSAR University of Law, Hyderabad 2. Enfranchising Prisoners in India: An International Law Perspective Pranshu Gupta & R Kavipriyan, NALSAR University of Law, Hyderabad NALSAR University of Law, Hyderabad 3. Military Mission v. Human Rights: The Legalities of Derogating from the ECHR in times of Armed Conflict Daniel Fitzgerald, Mississippi College School of Law, US 4. Protecting the Populations of Sinking States: Applying and Adapting International Law Vishaka Ramesh & Vishesh Bhatia, NALSAR University of Law, Hyderabad Review Articles.

5. The right to self-defence in cyberspace and State Opinio Juris Shamshir Malik, University of Toronto, Toronto, Canada 6. Children in Conflict Zones: The Intersection of IHL and UNCRC Haniya Hasan, Independent Research Scholar, Islamabad, Pakistan 7. The Weaponization of Outer Space: Through the UN's Looking Glass Deeksha Prakash & Srijita Goswami, Symbiosis Law School, Hyderabad, India Case Comments and Analysis.

8. Equitable Management of Shared Natural Resources: Argentina v. Uruguay Garima Ojha, Gujarat National Law University, Gandhinagar, India Saloni Subanshi, National University of Study and Research in Law, Ranchi Interviews.

9. Interview Session with Mr Marc Finaud, GCSP Amulya Anil & Alexandru George Mos, Former Managing Editors, SAJIL 10. Interview Session with Mr Suddha Chakravarti, ON Research Sulekha Agarwal, Associate Editor, SAJIL 11. Interview Session with Mr Dexter Roberts Abhivardhan, Editor in Chief, SAJIL Akash Manwani, Research Analyst, Internationalism

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Moot Court Testimonials.

12. Testimonials of the Winners of the William C Vis International Moot 2020 Abhivardhan, Editor in Chief, SAJIL Nikhil Dongol, Associate Editor, SAJIL 13. Testimonials of the Winners of the Philip C. Jessup International Law Moot Court Competition, National Rounds – India, 2020 Udomo Ali, Associate Editor, SAJIL 14. Testimonials of the Winners of the John H. Jackson Moot Court Competition, 2020 Abhivardhan, Editor in Chief, SAJIL Book Reviews.

15. Has China Won? The Chinese Challenge to American Primacy by Kishore Mahbubani Pratham Sharma, Research Member, Internationalism Akash Manwani, Research Analyst, Internationalism

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The SAJIL Team Editorial Board (Core).

Abhivardhan Founder & Editor-in-Chief Aryakumari Sailendraja Chief Managing Editor (Interim) Nikhil Dongol Managing Editor, South Asia Udomo Ali Managing Editor, Africa Editorial Board (Associate).

Bulbul Khaitan Associate Editor Christina Velentza Associate Editor Sulekha Agarwal Associate Editor Quazi Omar Foysal Associate Editor (Former) Shobhitabh Srivastava Associate Editor Prateek Singh Junior Associate Editor Vaishnavi Chaudhary Junior Associate Editor Management Team.

Ion Tudor-Gheorghe Chief Technical Manager, Internationalism Internationalism Research.

Akash Manwani Research Analyst, Internationalism Pratham Sharma Research Member, Internationalism Kunaal Sinha

Research Intern (Former), Internationalism Internationalism Editorials.

Akash Manwani Research Analyst, Internationalism Pratham Sharma Research Member, Internationalism Kunaal Sinha Research Intern (Former), Internationalism Peer Review Board.

Vignesh Ram Head, Political Risk & Intelligence Services Management (PRISM) Dr Nanda Kishor Asst Professor (Senior Scale), Dept of Geopolitics & International Relations, MAHE Sourabh Ubale Assistant Professor, Marathwada Mitra Mandal's Shankarrao Chavan Law College, Pune)) Ananyo Mitra Assistant Professor at IFIM Law School, LLM (QMUL, UK) Amrit Subhadarsi Assistant Professor(I) at School of Law, KIIT Deemed to be University, Bhubaneswar Avi Krish Bedi Program Associate, Centre for Civil Society, India Anna Sinha Researcher, BRICS International Forum

Analytical Articles

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1 Territoriality in the Reign of Cloud Data: An Anachronism Mehreen Mander and Punishk Handa NALSAR University of Law, Hyderabad, India mehreen.mander@nalsar.ac.in; punishk.handa.120@nalsar.ac.in

Abstract. Cloud computing is becoming the new reality of data storage. It has changed how we interact with data and considerably increased our dependence on cloud computing services and service providers. However, cloud data, is conceptually different. Data is inherently unterritorial in a predominantly territoriality-obsessed jurisprudence. Cloud data does not conform to the basic premise of the territoriality doctrine – it cannot be tied to a fixed location. Data is location independent. It belongs to its user, but it does not belong to any location – at any given point it is located in a server farm unknown to its user. Territoriality doctrine in its current form threatens to subject that data to the jurisdiction of the location of that server farm without notice of the user. It also places the principles of international comity and mutual sovereignty under threat when a foreign law enforcement seeks access to that data Territoriality, to say the least, is incompatible with data and its exceptional nature. This proposition is at the heart of this article. It attempts to make a case for discarding the territoriality doctrine with respect to data to give way for a new international cooperation-based model, which respects the underlying purpose and intention of the territoriality doctrine without being an anachronistic imposition in the era of cloud data.

Keywords: Territorial jurisdiction, Doctrine of Territoriality, Cloud data, Data, Data Exceptionalism, Location-independence, Cyberspace, Cyberterritory.

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Introduction

In December 2013, the magistrate judge in the United States District Court for the Southern District of New York issued a warrant under the Stored Communications

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Act, 1986. This warrant required Microsoft Inc. to produce before the court emails and information associated with the account of an unidentified user. The said information was stored on a server located in Ireland. Microsoft provided information regarding the account but refused to turn the emails over on the account that the authority of the U.S. judge did not extend to the data located abroad. Microsoft appealed to the federal District Judge who upheld the magistrate judge’s ruling. So, Microsoft appealed to the Second Circuit.

The Second Circuit Court overruled the magistrate’s order by interpreting the intent of the SCA legislation. The Court came to the conclusion that while framing the law, the US Congress did not intend for an extraterritorial application of the warrant provision. The intent was rather to protect the privacy of the user and by no means did it authorize the procurement of data “stored exclusively” in a foreign jurisdiction. The amicus briefs2 in support of the Microsoft mostly spoke about the impropriety of issuing such a warrant in an international law setting. It would completely be against the principles of international comity and would open floodgates.

The decision of the Court, plainly put, was that the scope of the SCA did not extend to data located abroad and since the data was located abroad, Microsoft need not produce it.

The holding in this case was later rendered moot by the enactment of CLOUD Act. 3 This case however prompted scholarship to question the nature of cloud data4 instead with respect to its relationship with territoriality. It was argued that cloud data is unterritorial; it was location independent and therefore could not be legally treated in the same way as tangible property in matters of search and seizure. The idea of data5 exceptionalism – that data is conceptually exceptional or different has been gaining currency. However, there has been scholarship which is dismissive of data exceptionalism and has tucked data in with other kinds of legal fictions like intellectual property and money. (Woods, 2016) This article examines the aspect of data exceptionalism and makes a case for how it is irreconcilable with territoriality and why there should be a reimagining of law to accommodate this novel entity.

It is important to note that in the Microsoft case, territoriality of data was assumed. It was a given that the data was territorially in Ireland and by the virtue of that location, it would indeed be an “extraterritorial” application of the SCA to is1

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The Stored Communications Act, 1986 was enacted under the Electronics Communications Privacy Act of 1986, addressing the voluntary and compelled disclosure of third party-held stored wire and electronic communications and transactional records.

Many ISPs including Apple, Apple, Accenture, Verizon among others filed amicus briefs in favor of Microsoft.

This Act, enacted in 2018, allows US federal law enforcement to issue warrants or subpoena to compel any US based Technology company to provide requested data irrespective of where it is stored.

Cloud data is that data which is stored via cloud computing. This data is stored on remote servers by cloud storage service companies which is accessible from the internet.

Data hereinafter is used to refer to cloud data.

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sue a warrant for the procurement of that data. This article however does not concern itself with the holding of the case. It goes beyond that assumption, challenging it and proposing a new paradigm in the area of cloud computing.

The emergence of cloud computing has changed our relationship with data. It has swept across all aspects of work and life. And like every other technological innovation, cloud data will impact law. Law can respond to changes in technology in three ways: by not responding at all, by reinterpreting and modifying exiting law or by making new law. (Friedman, 2001) When does a law need to respond to a change? When the sweep of the change is so wide and all-encompassing that it changes certain assumptions and underlying facts which are implicitly assumed in the process of law-making. When the change renders certain legal principles and doctrines inapplicable or obsolete, then the law needs to take cognizance of such a change.

In Part One, this article delves deep into the Doctrine of Territoriality which is so firmly embedded in law as we know it and attempts to understand its basis and purpose. In Part Two, the article understands data exceptionalism and how its irreconcilable with territoriality, and why having it any other way would lead to undesirable consequences. In Part Three, the article proposes a novel skeletal model – an international legal framework which would acknowledge the exceptional, unterritorial nature of data while also establishing operative mechanism for law enforcement to procure information.

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Understanding Territoriality

2.1

Background

The Doctrine of Territoriality refers to the enabling of “a claim of territorial jurisdiction, irrefutable and unproblematic in that it rested on conduct occurring within the regulating State and, by definition, could not overlap with a competing claim by another country.� (Buxbaum 2009) The Doctrine comes from the Westphalian understanding of international law and jurisdiction. The source and purpose of this doctrine is the idea of protecting sovereignty of formally equal States. It also seeks to ensure that no State intervenes in the affairs of another State. (Schwarzenberger 1957) The primary question that the doctrine seeks to answer is regarding the nature of justification required by any State to assert jurisdiction and laws on any situation and/or persons.

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The Doctrine and the its approach

The Doctrine of Territoriality acts as a restraining tool to the application of any extraterritorial laws by a State that would impugn the sovereignty of another State.

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That is done by prescribing the need for a territorial link of the person or the situation with the State that seeks to assert jurisdiction. Jurisdiction is defined as “a term of large and comprehensive import, and embraces every kind of judicial action. It is the authority by which courts and judicial officers take cognizance of and decide cases.” (Black, Garner 2019) According to the doctrine of territoriality, the law of jurisdiction would stop States from asserting jurisdiction over affairs which are under the dominion of other States. (Mann 1964) This would include those acts that take place beyond the geographical territory of that state.

This doctrine has been a means for international law to move towards cooperation, beyond mere co-existence between the States. The international legal community has, in pursuance of this goal, appreciated a more restrictive approach in exercise of jurisdiction.(Bradley 2001) The approach does not merely require States to not impugn sovereignty of other States but rather, emphasizes on a more permissive understanding in the exercise of jurisdiction, i.e. only the acts carried out within a State’s territory will fall under that State’s jurisdiction, unless international laws or customs permit a State to assert jurisdiction beyond its geographical territory.

(Bianchi 1992) This permissive rule for the exercise of jurisdiction is enshrined in the 1927 Lotus case. The Permanent Court of International Justice ruled that States are not entitled to enforce their laws outside their territory and that a State enjoys discretion to select a basis for the exercise of prescriptive jurisdiction 6, with due regard to any limitations imposed by international law. While States enjoy extensive liberty in asserting prescriptive jurisdiction, enforcement jurisdiction 7 may be exercised only within their territory.

This restrictive approach in enforcement was in line with the basis of Doctrine of Territoriality because “There can be no enforcement jurisdiction unless there is prescriptive jurisdiction; yet there may be a prescriptive jurisdiction without the possibility of an enforcement jurisdiction” (Rynagaert 2015) Even after application of these rules complex cases can arise when determining territoriality and jurisdiction on acts and objects. For this, there are two kinds of territoriality, objective territoriality and subjective territoriality. This jurisprudence although originally derived from criminal law, has become an important part of the doctrine of territoriality.

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Prescriptive jurisdiction refers to a State’s jurisdiction ‘to make its law applicable to the activities, relations, or status of persons, or the interests of persons in things, whether by legislation, by executive act or order, by administrative rule or regulation, or by determination by a court.’ § 401 (a) Restatement (Third) of U.S. Foreign Relations Law. Enforcement jurisdiction refers to a State’s jurisdiction ‘to enforce or compel compliance or to punish noncompliance with its laws or regulations, whether through the courts or by use of executive, administrative, police, or other nonjudicial action.’ § 401 (c) Restatement (Third) of U.S. Foreign Relations Law.

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Objective and Subjective Territoriality

Subjective territoriality is described as the jurisdiction to prosecute and punish for crimes that have commenced in the jurisdiction-asserting States territory. The crime, however, may have been consummated or completed in another State. (Harvard Law School 1935) Although the jurisprudence developed in criminal cases, it can easily be applied to other situations or cases.

Objective territoriality stands for exercise of criminal jurisdiction when the crime was completed in the territory of the jurisdiction-asserting State, irrespective of where it commenced. Here, only the territorial jurisdiction of consummation of the criminal act is relevant. (Harvard Law School 1935) Similar to subjective territoriality, it owes its existence to transborder criminal jurisprudence development.

The evolved objective territoriality doctrine has somehow blurred the lines of the older ideas of distinctive subjective and objective territoriality. The court in the Lotus case, endorsing this theory asserted, “the courts of many countries, even of countries which have given their criminal legislation a strictly territorial character, interpret criminal law in the sense that offences, the authors of which at the moment of commission are in the territory of another State, are nevertheless to be regarded as having been committed in the national territory, if one of the constituent elements of the offence, and more especially its effects, have taken place there.� This gives rise to claims of jurisdictional right to any State on whose territory any constituent element of the crime has been committed.

But in the cases where the crime has been de-territorialized, such as in the cyberspace which uses cloud data, the use of constituent element rule based on this notion of territoriality becomes challenging, as discussed in the following sections.

This approach, of dealing with transboundary crime, is to allow the exercise of jurisdiction by a State as soon as one of the constitutive elements of the crime has taken place in its territory. In a paradigm where the constitutive elements cannot territorially be placed in a State, as is with cloud data, the application of this approach is, at best, challenging. (Berman 2002) According to the Lotus case, a State is not entitled to exercise jurisdiction and enforce their laws outside territorial boundaries, with the exception of when there exists a permissive rule relating to international customary law or from a convention or treaty. Even when States are entitled to have a prescriptive jurisdiction, enforcement of such extraterritorial laws has to done only through territorial means.

Searches by States on websites, computers, or servers for cloud data without a permission from the State that exercises territorial jurisdiction over the servers and over the data stored on these servers, i.e. by not relying on mutual legal assistance treaties or taking consent, would be considered unlawful due to extraterritorial enforcement according to the Doctrine laid down in the Lotus case.

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Scholarship for an extended use of territoriality

The Doctrine is silent on the resolution of tensions that could arise between States with competing interest over a particular case beyond the use of objective territoriality. However, contemporary scholars have suggested a “rule of reason” that would determine one States interest over the other States. This rule of reason is premised on all States exercising jurisdictional restraint and reasonableness.

This rule of reason theory supports that, “while a jurisdictional assertion based on one of the permissive principles is presumptively valid, it will only be lawful if is exercised reasonably, i.e., after State courts and regulators have balanced the different interests involved in a transnational situation before establishing their jurisdiction, and – quite probably – applying their own law.” With the ultimate goal of identifying the States with the strongest connection to the case at hand, in terms of interests, this rule allows the State with the strongest connection or interest to assert jurisdiction over the particular case. (Meessen 1996) A by-stander State8 that would have a more tenuous nexus, would have to apply the subsidiarity principles of international law. That means that if the “most interested” State fails to live to its responsibilities, the by-stander State would then, in principle, be allowed to assert jurisdiction over the claim for its interests in the case.

However, this rule of reason theory in application of the territoriality doctrine to resolve jurisdictional issues, has numerous practical obstacles. These tests of reasonableness would give rise to pro-forum bias9; the judiciary of any given State would have to conduct an interest balancing test involving considerations of politics and economy, and would impugn on the political branch’s prerogative to conduct foreign relations. These interpretations and interest-balancing exercises, without supervision of the international legal and political community, would give rise to subjectivity and parochialism that would go unchecked having international political and legal repercussions. (Ryngaert 2009)

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Data exceptionalism

Data exceptionalism or the idea that data is conceptually an exceptional phenomenon, is not as widely an accepted notion as one would expect. There is a section of scholarship that refutes data exceptionalism. They argue that the supposedly novel and exceptional characteristics of data are found in other existing entities, rubbishing the entire premise of exceptionalism. However, the novel character of data is not to be found in any single one of its defining features, but in the cumulation

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A State with a more tenuous nexus – could, and perhaps even should exercise subsidiary jurisdiction as a sort of ‘trustee of mankind’. ‘that judges exhibit a tendency to apply their own forum’ Choice of Law and the Home-Court Advantage, Stuart E Theil.

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thereof. This section shall discuss those features individually and as a whole, to determine whether data is indeed exceptional or not.

3.1

Mobility

The territoriality doctrine is premised in the assumption that there is a location attributable to any entity which can be determined at any given point of time. However, the assumption does not hold true in the case of data. Data is mobile. It moves around, but so does money & mail. Money also however, travels as data, when it travels across borders and currency & not in its physical form (Svantesson 2016).

To say that data is mobile is not to say that data cannot have a known location at a given point of time. The distinctiveness in which data travels lies in the ease, speed and unpredictability in the way this movement happens.

There are many reasons as to why data is moved around. Data could be required to be moved from a particular server during peak usage times, power outages or other unforeseen circumstances, or for uninterrupted service during server maintenance. It could be moved around for technical processing, copying or enhancing accessibility. (Andrews 2013) At times, moving data around is a luxury – to ensure higher speed and better accessibility for the user – and at other times, it is a necessity – to avoid losing the data. Microsoft argued that the way data is moved is not arbitrary, for it aims to keep the data closest to the user. Google is said to do the same with its Gmail users.

This movement is characterized by a pervasive arbitrariness, at least on the user end. (Daskal 2015) There is no way for a user to know where their data might be moved to, when and for how long this movement happens, what path the data takes or even where the data was stored in the first place. There is no one single path for data to move from point A to B. There is no way for a user to know, and for most part there is no need to know either. However, to allow a foreign jurisdiction to apply on the data of a user who has no knowledge, and due to the absence of such knowledge, is incapable to consent to the same, is fundamentally violative of principles of natural justice.

At the heart of why cloud data is accessible the way it is – from anywhere, at any time – is because of its ability to be moved around at a speed which can only be described as unprecedented. And with Moore’s Law stating that almost every two years, the number of transistors in a computer increase, which exponentially increases its speed and also halves the cost of computers, it is only expected that the bulk of data that can and needs to be moved around will increase. To subject a host of users to “surprise jurisdictions”, will essentially mean that by availing services of any Internet Service Provider (hereinafter, “ISP”), a user is opening the possibility of being subjected to any foreign law and jurisdiction. For instance, a user based in England using an American third-party cloud storage service, whose data is stored on a server in India, could have their subjected to Indian laws. The user could not have consented or known the location of the server.

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Divisibility

Another aspect of data is its divisibility. Data is not stored in quite the manner it is produced. It is often copied and stored in multiple locations – on multiple sites, servers and nations – to afford protection against server malfunctions and to facilitate ease, speed and backup. This practice again is not novel to data. In fact, it is quite similar to getting multiple photocopies of your birth certificate, for instance, for safekeeping.

However, data partitioning is a crucial method used to the make data more manageable and efficient to use. This makes it easier for the ISP to store and access data.

A single database system has a physical hardware limit. If data is continued to store on the database without partitioning, it will eventually reach that limit. On the other hand, if data is scaled down into smaller and smaller components, and each of these components is separately stored on various databases, the system can be used almost indefinitely. This improves performance and efficiency on the administrative side – it allows the ISPs to break the data down and store similar components together. It can also address security concerns by storing sensitive data in more secure databases than relatively non-sensitive data.

Territoriality jurisdiction would create ambiguous conditions for such partitioned data – what jurisdiction applies to a set of data which is located over several different locations? This question is quite important in the case of relational databases, which is a single database that contains the data points to various data components, that have a defined relationship, stored variously for easy access. There will inevitably be an overlap of jurisdiction. This, when viewed in consonance with data’s mobility, creates absurd jurisdictional scenarios where different components of data shall fall under different jurisdictions. And these components, can still quickly and with negligible hassle, moved around at the whim of the ISP. 3.3

Data Intermingling

One of the features of cloud data which adds to its novel appeal is the fact that it can be accessible to multiple users in real time. The same document can be edited by multiple people at the same time, the same playlist played on different devices.

Many users are a part of multi-communication transactions which cross physical boundaries and inevitably, jurisdictional boundaries.

To allow jurisdiction based on the location, identity or citizenship of any one of the users, will affect privacy concerns of the other users. Does the law enforcement of any jurisdiction require all users in a multiple communication transaction to fall under that jurisdiction? Or is one user enough? Imposition of territoriality doctrine poses these questions which seem to have no answer that is fair to all parties involved.

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Possession and Ownership

It was also argued by Kerr, initially, and cited by the magistrate judge in the Microsoft case, that copying data is not a constitutionally valid seizure, for it does not interfere with possessory rights of the user. (Kerr 2005) More simply put, remote access of a server, as long as it does not deprive the access to data or alter it in any way for the user, would not be considered a seizure. While Kerr later went back on his assertion, understanding that the aim of preventing unreasonable seizures was to restrict the government’s access to information, (Kerr 2010) there are some other inquiries which can be made to this proposition.

The way possession and ownership are conceived for tangible property cannot be transposed to data. In tangible property, ownership implies the right to control, use and dispose property, at the exclusion of others. With data, however, given the significant third-party control, data intermingling and covert surveillance regimes, ownership is simply not the same. User rights to control, use or dispose data are, at best, illusory.

The simple argument in saying that only upon the infringement of possessory rights with respect to data, will the copying of data be considered a seizure, is based on the assumption that possession in context of data can be understood in the same way as it can be understood for tangible property. However, possession cannot be defined for data in the same terms as it can for tangible property. For tangible property, movable or immovable, physical possession is the essence of that property having any utility. However, for data, possession is not as black and white. At any point of time, any data that lies in the cloud belonging to a particular user, might not be in direct control of that user. The ISP exercises more control with respect to the movement and the whereabouts of that data than a user itself. A user can, at any point and from anywhere, access that data, but access to that data cannot be equated to possession. In an eventuality, where due to a server malfunction, uncopied data stored in that server is destroyed, the user is seen to be deprived of their core rights associated with legal ownership and possession– the right to control and dispose property.

Moreover, ownership, as well as possession, in tangible property terms is necessarily associated with a sense of control over a property at the exclusion of others.

However, one of the defining features of cloud data, is that it is simultaneously present at many places and accessible to multiple parties. It is accessible to the user from the device she seeks to access it. It is available to the third-party ISP from its database servers. It could be accessible to other users in multi-party communication transactions. So, possession is not exclusive and therefore, its essential value with respect to data cannot be compared with possession with respect to tangible property.

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Third Party Interference

The data regime has unfolded in a manner where reliance on cloud data is an increasingly regular feature – from commercial and business purposes to domestic usage. Cloud-based services have, whilst simplifying storage, improving communication, speeding up transportation of data among other things, created a huge dependence on third parties. All of users’ data is under the constant access and monitor of these third parties. This inevitably creates many privacy concerns provided the third-party doctrine (Smith v. Maryland, US v. Miller) which States that if a user has shared data with a third party, they can have no reasonable expectation of privacy therefrom.

Firstly, the third-party doctrine is no longer compatible with the current widespread of data and the inevitable reliance on multiple third parties. Given that third parties control so much with respect to every imaginable logistical aspect of users’ data, it would be unfair upon the user to not have any legal backing in protecting their privacy rights.

Secondly, users have very little say and almost no notice with respect to how and where their data is being stored and moved. That decision is made entirely by the third party, based on their designs, server locations etc. To subject a user’s data to a jurisdiction that he could not have possible known or consented to, which was entirely determined by a third-party actor, is prima facie unfair.

3.6

Location Independence

Data is inherently location independent. It can be at a given location at a point of time, but that location is neither permanent, nor relevant to that data. Daskal (2015) understands data’s location independence in terms of the disconnect between location of sought access by law enforcement and the location of the data sought, and between the location of the data and the user. Daskal goes on to describe the first disconnect, i.e. between the location of access and data, using an objective territoriality analogy of extraterritorial killing and drone, driving home the point that the location of data, by the objective principle of the territoriality doctrine, would be the determinant of jurisdiction and not that of the law enforcement seeking access.

This again circles back to the point made about the arbitrary location of data which is not notified to or consented by the data user.

The disconnect between the data and the data user, inasmuch as the location of the server not having to do with the physical location of the user, further goes on to prove that to base jurisdictional questions upon the arbitrary considerations of location shall produce, at best, absurd results.

Simply put, location is not a relevant feature to data, simply because it is easily manipulatable. Its location is not a function of the location of its user. Its location is not material to its function either. This is also why comparisons to intellectual property do not make any sense, because intellectual property rights are necessarily

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legal fiction confined to a particular territorial jurisdiction outside of which it has no meaning. Data, on the other hand, has an existence which has very little relevance to its location.

Though data’s location is irrelevant to it, at any given point of time, it is stored on a server somewhere. To allow law enforcement to gain access to data located in a foreign jurisdiction, violates the principle of territorial integrity. Allowing a continuation of this could possibly lead to an understanding of cyber-territories and might create cyber-borders, to more manifestly understand the nature of such violations. That would in the long run be detrimental to the nature of the internet as we know it.

Undermining the extent of data’s location independence and insisting on territoriality, is likely to motivate nefarious practices. ISPs could easily decide to locate servers in favorable jurisdictions. This is hardly far-fetched and shall prove to be quite detrimental for the cause of law enforcement globally. Territoriality is hardly a solution to a jurisdictional question for entity that is so inherently dissociated with physicality of any kind.

4

Inadequacy of the Territoriality Doctrine

After identifying these unique characteristics and features of cloud data, it is important to analyze the compatibility of cloud data with the existing legal jurisprudence on a State exercising jurisdiction to access that data. As discussed in the first part of this paper, the territoriality doctrine forms the core legal justification for any State to exercise prescriptive as well as enforcement jurisdiction over a given situation. The territoriality doctrine that stems from the principles of sovereign equality of States and non-intervention. These principles are not only accepted in international law, but also form the core ideas behind the development of entire international legal jurisprudence and various different international bodies and systems of law that exist.

The argument that follows analyses and attempts to reconcile the overall exceptional character of data with the doctrine of territoriality and finds as such that cloud data, as it exists today, is incompatible with unilateral exercise of jurisdiction based on the territoriality doctrine. And that exercise of jurisdiction undermines principles of sovereignty. This gives rise to a need for an alternate system to laws to ensure that these valued international law principles are protected, and facilitated when States assert jurisdiction for cloud data.

Subjective territoriality when asserting jurisdiction over cloud data would mean that States will establish jurisdiction over the data on the basis of identity- or origin-related tests. These tests could include questions like the citizenship of the data subject or that of the data controller(s) (on basis of where the company is registered) or where the data was originally created. However, these tests in themselves can be causes of internal overlaps while exercising jurisdiction, which would

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be a very real possibility, if not a certainty, given the global scope of the internet and heavy reliance on third parties. An example of this would be, where an Indian citizen, located in Germany, uploads a document on the X company (registered in the USA) cloud storage which contracts with hundreds of third-party companies across the globe to store data on their servers. Given the mobility and divisibility features of data, determining that data’s real time location would lead to several overlapping jurisdictions with no measure for preference of one State’s interest over the others. Even if one test was to be developed, such as the citizenship of the data subject, in this example Indian, it would create problems of enforcement, as the Indian State cannot be expected or allowed to exercise unilateral enforcement jurisdiction over an American company, or the other companies that own and operate the server farms to actually assert jurisdiction over that document. Allowing such enforcement jurisdiction would in itself undermine the principles of sovereignty on which the territoriality doctrine is based.

Objective territoriality when asserting jurisdiction would mean that States would establish jurisdiction over the data on the basis of the effect of that data.

Tests relating to objective territoriality could include tests like whether the data is located on servers present in the State. Now given the understanding of presented in the previous section, this is clear that data is inherently location independent.

The location of data is neither permanent nor relevant to the data. The arbitrary character of the location also goes a long way in explaining that exercise of objective territoriality would not only be next to impossible because of technicalities of storage that would include divisibility and mobility but also that the location in itself does not form a relevant interest for a State to exercise jurisdiction. This practice, although enforceable, would only create barriers in development of the global internet community, and complicating cyber law enforcement that would not only facilitate extraterritorial acts by States, but also compromise the safety and privacy of data. Not to mention the storm of nefarious practices which shall follow a territoriality-based model, including the various data localization laws that compel data controllers to store data or certain types of data on serves inside a country. In addition, the ISP would strategically locate their headquarters and server farms in more favorable jurisdictions. These practices have the potential to change the global internet network as we know it today to a more regressive localized setup.

5

A Skeleton for an Alternate Model

Due to the incompatibility of cloud-based data regime with the current territoriality centered jurisdiction assertion model, there comes a need for an alternate model.

This alternative model should not only solve the problems that jurisdictional assertion creates when looking at data through the traditional territoriality lens but also at the same time protect and uphold values on which territoriality is based, i.e. sov-

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ereign equality of States. The key is to ensure fair access for the ends of law enforcement using such means that are in line with the international interests and principles.

The model that this article proposes is one based on international cooperation.

This model proposes an international treaty between all States for the indiscriminate exercise of jurisdiction. At this point it is essential to note that this model theory is based on the presumption that if not all States in the world, but at least key States that would play a part in the exercise of jurisdiction have ratified this treaty.

The non-existence of this presumption will of course create barriers in practice, although those are beyond the scope of this article.

This model demands that a uniform international framework of law or legislation should be created, ratified, enacted and enforced by sovereign States of the world. This framework would create certain broad legal standards leaving the minute details to be worked out by each State on their own. Each and every State will be required to comply with those set of standards before it can assert jurisdiction on a particular piece of data. An analogy can be drawn here to the ‘probable cause’ requirement that exists in the United States before any law enforcement agency can obtain a warrant for search and seizure. For the purpose of this paper, the actual substantive subject matter of these standards is irrelevant.

The primary feature of this standards-based law is that it has to avoid any question or test that relates to territoriality, whether it is subjective or objective. All the States who have ratified the framework would be in the same cyberterritory. This legal framework has no place for tests such as the citizenship of the data subject, or the location of servers on which the data is stored. Rather, importance could be given to tests such as those in the “effects” doctrine.

After creation of these substantive standards for the States to comply with, the framework unlike other conventions or treaties, would require that the judicial pillar of each State to approve the request of this jurisdictional assertion, quite like any other warrant would need to be approved. This approval would be granted on the basis of the substantive subject matter of the legal circumstance in compliance with the standards agreed in the framework. Uniformity and autonomous interpretation would be key components for the success of this model, where the judiciary also disregards any assertion on the basis of territoriality.

Another strikingly different feature of this model would be, that the same uniform legal framework would deal with jurisdiction over data that is originated and stored domestically in the same manner, i.e. by upholding the same legal standards as it would deal with data that has no territorial link with the State that wants to assert jurisdiction.

The judicial approval would conclude the prescriptive jurisdictional part of the framework. The enforcement jurisdiction would be exercised with the help of international cooperation that would be required of all States that are parties to the framework. All signatory States would endeavor to facilitate the enforcement of the judicial decree/order of the jurisdiction asserting State.

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This model seeks to, fundamentally divorce the data with a locational attribute of any kind. A server located in India, for the purposes of seeking law enforcement access, is no different to a law enforcement agency based in Bangladesh, than a server located in Bangladesh. That is, provided both Bangladesh and India have ratified this treaty and implemented similar legal models to the end of cloud data access by law enforcement.

Cloud data is a product of a borderless cyberspace. To tie it to territorialities and borders which do not exist in its plane would not just be an injustice to the very borderless nature of cloud data, it would also create unnecessary obstacles to the ends of law enforcement, obstacles which the world can do without.

6

Conclusion

The territoriality doctrine is incompatible with data, because cloud data is conceptually exceptional. Data is an unprecedented entity. It busts the entire premise of the territoriality doctrine; that entities have a fixed, observable location which hold a kind of relevance to that entity. Data’s location is fleeting and irrelevant. It can be and is divided and stored at multiple places at the same time. It does not conform to the same notions of territoriality that other tangible objects or even legal fictions like money and intellectual property. Moreover, imposing territoriality on data by any means is likely to produce overlapping jurisdictions. In some cases, it will just produce absurd and awkward jurisdictional scenarios, like subjecting various components of data to different jurisdictions. In other cases, it will lead to scenarios where users are caught unawares with their data being subject to “surprise jurisdictions” based on movement and location of data which they are not notified about. This calls for an international cooperation model, one possible manifestation of which this paper envisions. The model essentially eliminates borders in the cyberspace, between signatory nations, making all servers as easy to access for the law enforcement as territorially-located servers.

References 1. ANDREWS, Doman C and John M NEWMAN, 2013. Personal Jurisdiction and Choice of Law in the Cloud. Maryland Law Review. Vol. 73 Iss.1. Retrievable from: http://digitalcommons.law.umaryland.edu/mlr/vol73/iss1/12 2. BERMAN, Paul Schiff, 2007. A Pluralist Approach to International Law. Yale Journal of International Law. Vol. 32 Iss. 2. Retrieved from: https://digitalcommons.law.yale.edu/yjil/vol32/iss2/3 3. BIANCHI, Andera, 1992. Extraterritoriality and Export Controls: Some Remarks on the Alleged Antinomy Between European and U.S. Approaches. German Yearbook of International Law. Vol. 35 Page. 366.

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4. BLACK, Henry Campbell, and Bryan A GARNER, 2019. Black’s law dictionary. 11th edition, St. Paul, MN. Thomson Reuters.

5. BRADLEY, Curtis A, 2001. Universal Jurisdiction and U.S. Law. University of Chicago Legal Forum Vol. 2001: Iss. 1, Article 9. Retrieved from: http://chicagounbound.uchicago.edu/uclf/vol2001/iss1/9 6. BUXBAUM, Hannah L, 2009. Territory, Territoriality, and the Resolution of Jurisdictional Conflict. Articles by Maurer Faculty. Paper 132. Retrieved from: http://www.repository.law.indiana.edu/facpub/132 7. DASKAL, Jennifer, 2015. The Un-Territoriality of Data. Yale Law Journal. Vol. 125 Iss. 2.

8. FRIEDMAN, David D, 2001. Does Technology Require New Law? Harvard Journal of Law and Policy, Vol. 25 Page 71.

9. HARVARD LAW SCHOOL, 1935. Draft convention on jurisdiction with respect to crime. Cambridge, MA. Harvard Law School.

10. KERR, Orin S, 2005. Searches and Seizures in a Digital World. Harvard Law Review.

Vol. 119 Page 531.

11. KERR, Orin S, 2015. The Fourth Amendment and the Global Internet. Stanford Law Review. Vol. 67 Iss.2.

12. MANN, Fredrick Alexander, 1964. The Doctrine of Jurisdiction in International Law. The Hague. Leyden: A. W. Sijthoff.

13. MEESSEN, Karl M, 1996. Extraterritorial Jurisdiction in Theory and Practice. The Hague. Kluwer Law International 14. RYNAGAERT, Cedric, 2015. Jurisdiction in International Law. 2nd edition. London.

Oxford University Press.

15. RYNAGAERT, Cedric, 2009. Territorial Jurisdiction over Cross-Frontier Offences: Revisiting a Classic Problem of International Criminal Law. International Criminal Law Review. Vol. 9 Iss. 1. Retrieved from: https://doi.org/10.1163/157181209X398880 16. SVANTESSON, Dan J, 2017. Against ‘Against Data Exceptionalism’. Masaryk University Journal of Law and Technology. Vol. 11 Iss. 1.

17. SCHWARZENBERGER, Gorge, 1957. International Law as Applied by International Courts and Tribunals. 3rd edition. London. Stevens.

18. WOODS, Andrew Keane, 2016. Against Data Exceptionalism. Stanford Law Review.

Vol. 68 Iss. 4.

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2 Enfranchising Prisoners in India: An International Law Perspective Pranshu Gupta and R Kavipriyan NALSAR University of Law, Hyderabad pranshu.gupta@nalsar.ac.in; kavipriyan@nalsar.ac.in;

Abstract. India, even after being considered one of the most powerful democracies all over the world denies one of the basic human rights, i.e. the right to vote to a particular section of people merely on the basis of their status of conviction. This section of people not only includes convicted prisoners, but under-trials and detainees as well. Enfranchisement rights to prisoners has been one of the most contentious topics all around the world, with differing state practice in different countries. However, there have been a number of international instruments signed amongst countries under the United Nations as well as other regional treaties and conventions which guarantee political rights including universal suffrage to everyone, regardless of discrimination on any basis whatsoever. A number of courts all around the world have decided to grant voting rights to prisoners, subject to some conditions. Also, the state practice of a significant number of countries points towards the emerging need to enfranchise their prisoners. This state practice and court decisions vary from granting voting rights to all prisoners regardless of their status of conviction, to grating voting rights only to under-trials and detainees or granting voting rights based upon the nature of crime committed or the duration of sentence imposed. This is where India lags behind, as Indian laws through the Section 62(5) of the Representation of the People Act, 1951 impose a blanket ban upon all the prisoners from voting in elections, regardless of what their status of conviction is. Under-trial prisoners, against whom the crime they are accused of has still not been proved by the court, are debarred from exercising this basic human and political right.

Moreover, even the Indian judiciary has upheld this unjust law .There is thus, a need to incorporate this section of people into the political affairs of the country, the disentitlement of which is not justified being not one of the purposes or objectives with which they were incarcerated or imprisoned. In this

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paper the author would take into consideration various international instruments, treaties, conventions, declarations etc., decisions of various international courts and apex courts of different countries, trends across the world with respect to state practice; all of which combined may take form of customary international law and make a case for the Indian Parliament to amend its laws in order to grant this right to this section of people. The mode of enfranchisement and the possible alternatives shall further be elaborated upon in the paper. The underlying object of the paper is to showcase that the application of Public International Law in this manner would not only make a strong case for India to reconsider its enfranchisement laws; but for every nation across the globe to mould its laws according to the customary international law in observance of fundamental and human rights.

Keywords: Universal Suffrage, International instruments, Court decisions, State practice, position in India.

1

Introduction

“The right of voting for representatives is the primary right by which other rights are protected. To take away this right is to reduce a man to slavery, for slavery consists in being subject to the will of another, and he that has not a vote in the election of representatives is in this case.”

-Thomas Paine ‘Universal suffrage’ is the right of all adult citizens to take part in the political process of the country by voting for the representatives of their choice. France is one of the first major countries to grant suffrage to all adult males under the Jacobin Constitution in 1973. The right to vote and to participate in the public affairs of the country is considered one of the pillars of a democratic institution. However, in one of the largest democracies of the world i.e. India; a significant portion of its population is not able to exercise this right owing to their status of conviction. Not only the prisoners convicted of an offence are disallowed to vote, but undertrials and detainees are excluded from this process as well.

The purpose of the present paper will be to discuss whether India should amend its laws and grant prisoners the right to vote and the extent to which these rights should be granted taking into account international treaties, conventions, documents, decisions of various courts and emerging state practice in this regard.

Therefore, the researcher will attempt to put forth his arguments in five parts.

The first part will discuss various international treaties, conventions and other documents, India being a signatory to some of them. Some regional treaties and conventions have also been discussed to increase the persuasive value of the arguments put forth. The second part discusses judgments from the apex courts of various countries over the world, including the European Court of Human Rights, being an international court. The third part analyses the standpoint of Indian judiciary with

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respect to prisoners’ voting rights. Fourth part discusses practices of various states over the world with respect to enfranchising their prisoners. The fifth part makes a case for India to enfranchise its citizens taking into account the observations in the first four parts.

2

International Instruments- Covenants and Declarations

2.1

Universal Declaration of Human Rights

The United Nations General Assembly adopted the Universal Declaration of Human Rights (also known as the ‘Universal Declaration’) in 1948 (Universal Declaration of Human Rights, 1948). This is a legally non-binding yet significant document that enshrines basic human rights of various states under the international law. India is also a signatory to the declaration. Some parts of this document have been viewed by some authors as constituting customary international law. This document has laid a significant impact upon the later treaties and human rights instruments signed amongst different nations. Article 2 of the Declaration sets forth the freedoms and rights to everyone irrespective of any distinction made on the basis of race, language, religion,…or any other status. Article 21 of the Declaration enshrines the right of every person to participate in the government of his country, and bases the will of the individual as the authority of the government thereby enshrining the principles of universal and equal suffrage. Thus, laws putting a blanket ban on the enfranchisement rights of prisoners violate their rights and freedoms based upon their status of conviction. The laws in India taking away the right to vote from prisoners also indirectly hinders the rights of prisoners on the basis of religion and caste taking into account the blighted social reality our country is endowed with, which shall be elaborated upon in the further sections.

2.2

International Covenant on Civil and Political Rights (ICCPR)

The United Nations General Assembly adopted the International Covenant on Civil and Political Rights (ICCPR) which is a multilateral treaty that came into force in 1976 (Summary: International Covenant on Civil and Political Rights, 2015). India ratified the treaty on 10th April, 1979 and came into force on 10th July, 1979.

Article 25 of the ICCPR puts forth the right of every citizen to vote, and this right shall not be subject to discrimination on the grounds mentioned in Article 2 of the treaty, namely religion, race, language, origin or other status or to “unreasonable restrictions”. Every citizen shall have the right to participate in the public affairs of the country, to vote and to be elected by “universal and equal suffrage”.

Looking at the wordings of the Article, there is a close resemblance with the wordings of Article 21 of the Universal Declaration. However, the presence of the

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words “unreasonable restrictions” implies that there might be some restrictions that can be placed on the right to vote, which would be reasonable and thus, permissible.

Though there is no specific provision in International law upholding the prisoners’ right to vote; the United Nations General Assembly observed in its resolution the basic principles for treatment of prisoners that merely owing to the fact of incarceration, no prisoner shall be denied the fundamental and human rights and freedoms enshrined in the Universal Declaration of Human Rights, the ICCPR, the International Covenant on Economic, Social and Cultural Rights, and other rights as enshrined in other United Nations covenants (Basic Principles for the Treatment of Prisoners, 1990).

The UN Human Rights Committee which oversees the compliance to the ICCPR has observed that Article 25 forms the core of a democratic government. The grounds upon which any restrictions are to be exercised on the right to vote have to be “reasonable and objective” (General Comment No. 25: The right to participate in public affairs, voting rights and the right of equal access to public service (Art. 25) 1996). Taking into account the laws of criminal disenfranchisement, the committee held that if the right to vote is suspended on grounds of conviction for an offence, the period of time for which the right is terminated should be in proportion to the offence and the sentence imposed. Also, under-trial prisoners or pre-trial detainees should not be excluded from this basic civil and political right. The committee has time and again shown its disapproval towards laws that disenfranchise prisoners and has attempted to limit the restrictions being exercised on the right.

Also, Article 10(3) of the ICCPR states that the ultimate aim of the penitentiary system would be to socially rehabilitate and reform the prisoners. The Human Rights Committee also stated in its 73rd session that disenfranchising prisoners is an additional punishment and does not contribute towards the prisoner’s rehabilitation and reformation, and should not be practiced in the modern times.

2.3

Convention on the Elimination of All Forms of Racial Discrimination

India is also a party to the Convention of the Elimination of All Forms of Racial Discrimination, which guarantees the political rights of right to vote and stand for elections without any discrimination on the basis of race, colour or national origin, on the basis of universal and equal suffrage (International Convention of the Elimination of All Forms of Racial Discrimination, 1965). It also empowers the state to rescind or amend any law that strengthens discrimination based upon race. Though not directly related to the case of India for the present purposes, general arguments can be made with respect to the strengthening of recognition of enfranchisement of prisoners all over the world, especially in the case of the U.S. and Canada, where disenfranchisement of prisoners has racial consequences.

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2.4

The United Nations’ Standard Minimum Rules for Treatment of Prisoners

Also known as the Nelson Mandela Rules, Articles 57 and 58 define the purpose of imprisonment and Articles 60 and 61 lay down the treatment that has to be given to prisoners. Under Article 57, the prison system should not aggravate the deprivation of liberties of the prisoner which he suffers as a result of imprisonment and other measures by detaching him from the outside world and taking away the right of self-determination. Article 58 states that the end purpose of imprisonment is the protection of society against crime. After he returns to the society, the offender then leads a law-abiding life. Article 60 provides for the dignity of the prisoners and their recognition as other humans and to minimize the difference between life in prison and life at liberty. Article 61 states the treatment of prisoners by making them a part of the society and not excluding him, and directing governments to secure their civil and social rights and interests and other social benefits. Thus, if prisoners are not given the right to vote, the above rules are violated and impose an additional punishment.

2.5

Other Regional Treaties and Conventions

There are various regional human rights treaties and conventions which safeguard the right to vote. The European Convention of Human Rights provides for right to free elections under Article 3 of Protocol 1 (Convention for the Protection of Human Rights and Fundamental Freedoms, 1950). This provision has been invoked by international courts, especially the European Court of Human Rights in its various judgments to grant prisoners the right to vote (subject to certain conditions) which shall be discussed extensively in the further sections.

There are similar provisions pertaining to the right to vote such as the American Convention on Human Rights, 1969, the African [Banjul] Charter on Human and Peoples' Rights, 1986 and various other international instruments and treaties across the world.

3

International Decisions pertaining to Prisoners’ right to vote

This section examines various landmark rulings of different courts over the world in order to look into how apex courts of different countries have expounded upon the question of prisoners’ right to vote. This examination will thus be useful in firstly, observing as to how different courts interpret different human rights treaties and conventions; and secondly, to observe the transnational trends on the willingness of different countries to grant prisoners the right to vote.

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Supreme Court of Canada

The Supreme Court of Canada directed attention towards the increasing recognition of the right to take part in the political process to all the citizens in a democracy (Sauvé v. Canada 2002). In this landmark case, the Parliament of Canada passed a law wherein every person who has been sentenced to prison for two years or more will not be allowed the right to vote. The Court looked into the statute and its intent and struck it down finding it violative of the respect for dignity of the individual which forms the core of a democracy, and right to vote being one of the basic tenets to the rule of law. The government contended that the purpose of the statute was to fulfill the basic purpose of sanctioning offenders, promoting civic responsibility and respecting the rule of law. However, the court quashed the submissions and ruled otherwise. The court held that the rights and obligations enshrined under Section 3 of the Canadian Charter of Rights and Freedoms will be undermined if prisoners are denied the right to vote. The lawmakers in the country are elected by the people and they act as their representatives. The legitimacy of the law and the obligation to adhere to it thus flows from the right to vote of every citizen. If prisoners are denied the right to vote, the state will fail to teach its citizens values of social responsibility and democracy. The court also held that restricting the prisoners from exercising their right to vote also hinder social development and obstructs correctional law policies and the goals of reformation and rehabilitation.

Thus, the blanket disenfranchisement policy of the state was invalidated by the Supreme Court and the statute was rendered unconstitutional.

3.2

Constitutional Court of South Africa

The Constitutional Court of South Africa (the highest court of the land) had first decided in the case of (August v. Electoral Commission 1999) on prisoners’ voting rights.

The court in this case was concerned more with lack of provision of facilities in prison to facilitate voting during elections. The court passed orders mandating the Electoral Commission and other authorities to make requisite arrangements to ensure that prisoners are able to register and vote for the elections when in custody.

The court laid its attention towards the effects disenfranchisement has on a person’s self-respect and the way his status is diminished to that of a secondary citizen.

It was held that “the vote of each and every citizen is a badge of dignity and personhood. Quite literally, it says that everybody counts.”

Thereafter, the Parliament of South Africa had passed a law that restricted prisoners’ right to vote. The law was challenged and the case was brought to the Constitutional Court for consideration (Minister of Home Affairs v. NICRO 2004). The court invalidated the law and enabled the prisoners’ right to vote just before the elections of 2004. The court held that right to vote is associated with the country’s dark past where the majority of the people would be marginalised in order to up-

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hold white supremacy. But now this precious right must be duly secured and respected. This right has been constitutionally stipulated- that all adult citizens shall be granted the right to vote for the legislative elections. All the arguments of the government defending its stance with respect to the costs associated with organizing it coupled with scarce resources, need for an aggressive outlook towards crime and punish the wrongdoers for the acts they committed were rejected by the court arguments stating that restrictions exercised on the prisoners’ right to vote is unjustified and incompatible with upholding respect for law. It would also not ensure an appropriate punishment for them.

3.3

European Court of Human Rights

A suit against the United Kingdom was brought by a British national John Hirst who had been sentenced a life imprisonment (Hirst v. United Kingdom 2006). The case went to the European Court of Human Rights, and the court ruled in his favour holding that imposing a blanket ban on all the prisoners in the UK from voting would be in violation of Article 3 Protocol 1 of the European Convention of Human Rights. No links were made between the nature of the offence or duration of the sentence and the disenfranchisement. The court also took into account the practice of other ratifying countries of the European Convention of Human Rights, and observed that in 18 countries, prisoners were given complete right to vote, no restriction being imposed; in almost 13 countries prisoners were stripped of their enfranchisement rights; and the remaining countries had left it upon the discretion of the court or the right to vote would be dependent upon the nature of offence committed. The Court however held that if the right to vote is infringed in any manner, it would undermine the spirit of democracy.

The court in this case discussed the proportionality failure of the disenfranchisement practices adopted in the country. Applicable to a large number of people, UK laws imposed a blanket ban on all the prisoners indiscriminately irrespective of the gravity or nature of their offence or the length of the sentence. A prisoner supposed to be in the prison for a week was equated to a prisoner undergoing life imprisonment in terms of enfranchisement rights. The Court therefore, held that Article 3 Protocol 1 of the European Convention on Human Rights has been violated denying the right to free election.

3.4

High Court of Australia

Vickie Lee Roach, an Australian citizen was imprisoned for six years on charges of robbery and crashing of car onto a man thereby causing him injuries. The Commonwealth Electoral Act 1918 was amended to impose a blanket ban on all prisoners from voting in the elections. Under the initial law of 2004, only those prisoners would be disenfranchised who have been sentenced for three years or more. Roach challenged the validity of both the laws which imposed a ban on enfranchisement

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rights of prisoners Vickie Lee (Roach v Electoral Commissioner 2007). The court held that the blanket ban imposed under the new law was unconstitutional. However, the prisoners serving sentences of three years or more can be validly restricted from casting their votes, thereby upholding the earlier law. The law barring all prisoners from voting imposed a blanket ban and was not proportionate. The right to vote lies at the core of a democracy, and there needs to be a substantial reason to restrict the same. According to the court, the earlier law made a reasonable distinction between “serious lawlessness and less serious but still reprehensible conduct”.

4

The stance of Indian judiciary

The Indian judiciary has time and again upheld the fundamental rights of prisoners.

In the case of State of Andhra Pradesh v. Challa Ramkrishna Reddy, the Supreme Court of India held that a convicted prisoner or an under-trial or detenu continues to enjoy all his fundamental rights including the right to life guaranteed to him under the constitution. On being convicted of crime and deprived of their liberty in accordance with the procedure established by law, prisoners still retain the residue of constitutional rights. The Supreme Court in T.V. Vatheeswaran v. State of Tamil Nadu held that Articles 14, 15 and 19 of the Indian Constitution are not mutually exclusive, and are available to prisoners as well. The honourable court iterated that “prison walls do not keep out fundamental rights”.

However, in India, right to vote is not considered as a fundamental right and is regarded a mere statutory right. Justice Jasti Chelameswar recently spoke about the need to consider the right to vote as a fundamental right (Rautray 2017).

Unlike the aforementioned countries, the Supreme Court of India on the question of right to vote for prisoners has upheld the validity of Section 62(5) of the Representation of the People Act, 1951 (‘the Act’) which disqualifies prisoners from voting in elections (Anukul Chandra Pradhan v. Union of India 1997). In this case, the constitutional validity of this section was challenged on grounds of violation of Articles 14 and 21 of the Constitution of India. It was contended that an arbitrary distinction is made between persons in prison and people out on parole or bail. Moreover, this restriction applies to a person who is in the lawful custody of the police.

This inevitably includes people detained during investigation before a chargesheet is filed against them, and under-trial prisoners because of their inability to furnish bail. These challenges were rejected by the honourable court primarily by citing the following reasons: 1) it serves the larger goal of preventing ‘criminalization’ of politics, 2) a person who is in prison due to his ‘own’ conduct cannot claim equal freedom of movement and expression guaranteed under Article 19 of the Constitution, and 3) the lack of resources and police forces to facilitate the process.

It can be said that although the first two reasons deal with legal issues, the third merely pertains to administrative difficulties. The argument that the intelligible dif-

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ferentia created by the statute enabling people outside the prison to vote and disabling the ones in prison would prohibit ‘criminalization’ of politics is unfounded, as the court fails to establish as to how preventing prisoners from voting would preserve electoral probity, while those out on parole or bail do not pose any such threat. This classification also does not take into account the gravity of the offence committed. The court further held that those under preventive detention form a separate class since they have not been convicted. The court here fails to observe the fact that even under-trial prisoners though inside prison, have not been convicted by any court of law. Furthermore, the standards of electoral probity as maintained by the court fall foul when the candidates who get elected to the parliament or state legislative assemblies themselves hold criminal records. Nearly 50% of the MPs in the current Lok Sabha have criminal records (Patel 2009).

The second argument of the court that prisoners cannot claim equal freedom to expression and movement doesn’t stand as the honourable court itself permitted the publication of a book by a prisoner when he was serving sentence holding that a prisoner retains his right to freedom of expression even when serving sentence (State of Maharashtra v Prabhakar Pandurang 1966). It was held in PUCL v. Union of India that the right to vote is a constitutional right and not merely a statutory right; freedom of voting as distinct from right to vote is a facet of the fundamental right enshrined in Article 19(1)(a). The casting of vote marks the accomplishment of freedom of expression of the voter as per Article 19(1)(a).

It was also contended that Article 21 of the constitution is also violated as the restriction imposed on the prisoners’ right to vote by Section 62(5) of the Act denies dignity of life. However, the court in its judgment does not address this contention anywhere and chooses to stay silent on this point. The honourable court in this manner upholds an unjust law by not providing reasonable explanations for the same and maintaining positions which are inconsistent with its earlier pronouncements and constitutional principles in a number of cases.

There is another striking observation which has not been paid much attention.

In the PUCL case, the right to vote was considered as a ‘constitutional right’ and not a fundamental right. In Challa Ramkrishna Reddy, it was held that prisoners still retain the residue of ‘constitutional rights’ even when they are convicted of crime and deprived of liberty in accordance with the procedure established by law. Reading together these judgments, it is quite discernible that the right to vote is a constitutional right and could not be denied even to convicted prisoners.

It is therefore, evident that the Indian judiciary has not made a single attempt to consider the unconstitutionality of Section 62(5) of the Act and has defended the law on grounds which are not well founded both in terms of constitutional principles as well as international state practice. This shall further be elaborated upon in the next section.

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Trends across the world: Customary International Law?

As stated above, almost 18 European countries grant full voting rights to its prisoners and some others grant conditional right to vote (either upon the court’s discretion or nature of offence). All the prisoners are given full right to vote in Slovenia (Kaur 2019). The government of Ireland provided the right to vote to all the prisoners in 2006 even without any major public outcry demanding for the same; adhering to its human rights commitments and complying to the international civil rights practices of granting right to vote to everyone including prisoners (Kaur 2019).

The right to vote to prisoners has also been granted in countries like Pakistan, Israel, and even Iran (Kaur 2019). A number of countries in Africa (South Africa, Kenya, Botswana, Ghana etc.) enfranchise their prisoners. Countries such as the Netherlands, Norway, Japan, Denmark, Zimbabwe, Peru etc. generally enfranchise their prisoners as a matter of right (Abebe 2013).

In other countries, convicted prisoners would be banned from voting, but undertrial prisoners are given the right to vote for example, in the United Kingdom and New Zealand. Other countries grant the right to vote to prisoners based upon the gravity of the offence, as in the case of Germany which debars prisoners convicted of terrorism charges; or the duration of the sentence, as in the case of Australia (three-year limit). In France, no prisoner would be disqualified from voting unless the court decides to do so (Kaur 2019).

Taking into account the enfranchisement policies of different countries across the world, the willingness of courts both domestically and internationally to protect convicts’ rights, and the increasing tendency of nations to enfranchise its prisoners, it can be said that there is a wide acceptance amongst civilised states of principles of universal suffrage, there is a broad consensus emerging against blanket disenfranchisement of prisoners. Thus, there is an increasing possibility of it being recognised as customary international law in due course of time, if it has not become one till now.

6

A Case for India

As observed above, in India Section 62(5) of the Act denies the right to vote to all its prisoners including undertrials and detainees. Around 4 lakh of its expected 90 crore citizens were not given the opportunity to vote in the recent elections (Bose 2019). In the world’s biggest democracy, a significant number of people were seized of one of their basic civil, political and human right. Imposing a blanket ban on all prisoners essentially means similar treatment of convicts, undertrials and detainees; thereby violating the principle of presumption of innocence which forms the bedrock of criminal trials in India. Undertrial prisoners, against whom the crime has still not been proved, are stripped of this basic right thus inflicting punishment even before he has been declared guilty.

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Recently, three law students from the state of Uttar Pradesh filed a Public Interest Litigation challenging the constitutional validity of Section 62(5) of the Act contending that the law disenfranchising prisoners be struck down (Bose 2019).

The petitioners contended that Article 326 provides for the principle of universal suffrage and that every person has the right to vote. Denying vote to prisoners is to treat the weakest and marginalised people in an inhumane manner. They also contended that the Election Commission allows those serving sentence of 2 years or less to contest elections from prison. So why are the same people not allowed to vote in elections? The prisoners should be made part of the democratic process like any other citizen which will in turn help them elect their representatives and would then be subject to be governed by the law that their own representatives passed.

Also, they have to become stakeholders in the system in order to improve the condition of the prisons in terms of sanitation, food, hygiene, overcrowding etc.

Taking into account the ground realities in India, a majority of the prison population constitutes Muslim, Dalits and Adivasis. According to the National Crime Records Bureau, 53% of the prison population is constituted by these communities (Verma 2014). However, their actual population in the country is just 39%. It is not due to the fact that these communities have a higher rate of commission of crimes, but their economic backwardness that hinders them from fighting their cases and get released from prisons. Also, the manner in which the society functions, including the police personnel; people from these communities are most vulnerable to action of the police and in most cases they are booked for offences without any substantial evidence.

Thus, disenfranchising prisoners in India would lead to an indirect impact upon a substantial number of people from these communities to not being able to exercise their right to vote; thus, underrepresenting them in the political sphere. Also, this is in direct contravention of Article 25 of the ICCPR which provides for the right to take part in the public affairs of the country through the right to vote irrespective of any discrimination based on the grounds of religion, race, colour, sex‌ or any other status. Thus, the impact that the Act lays on these specific communities violates the provisions of ICCPR, to which India is a party. It is also violative of Section 21 read with Section 2 of the Universal Declaration of Human Rights which provides for the principles of universal suffrage without any discrimination on grounds of religion, race,‌ or any other status.

Under Article 14 of the Vienna Convention, states that have ratified a treaty become parties to it and are thus bound by its provisions and the principle of pacta sunt servanda is applied wherein states need to perform their obligations in utmost good faith (Vienna Convention on the law of treaties, 1969). Also, under Article 27 of the Convention, invocation of internal law cannot be a justification to depart from obliging to treaty provisions. Also, it has been held that treaties and international human rights law should be interpreted liberally and dynamically in order to keep pace with evolutions and changing social attitudes and thoughts (Loizidou v.

Turkey 1995). The European Code of Good Practice in Electoral Matters states that

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universal suffrage is one of the guiding principles of electoral democracy. Disenfranchisement of prisoners is to be laid down by the law, and the court needs to impose it as a punishment for serious offences and taking into account the rule of proportionality (Code of Good Pratice in Electoral Matters 2002).

Thus, it is quite evident that international bodies and courts, and the apex courts of different countries adopt a liberal and harmonized approach in interpreting treaties and domestic law and have shown their disapproval towards a blanket ban on the prisoners’ right to vote and have found it incompatible with treaty obligations.

Also, State practice all over the world points towards the increasing skepticism of states from disenfranchising prisoners by imposing a blanket ban on all the prisoners, regardless of the nature of the offence committed or length of the sentence.

Thus, most of the states have granted the courts the discretion to determine the right to vote, or adopted the rule of proportionality wherein the nature of the offence or the length of the sentence would determine the right to vote of the prisoner.

In case of India, where not only the convicted prisoners, but undertrials and detainees are denied the right to vote as well; the government should seriously consider amending its laws to abolish the blanket ban being imposed on all its prisoners. The Parliament can adopt any of the practices to enfranchise its prisoners- either enfranchise all the prisoners including convicted as well as undertrial prisoners, regardless of the nature of the crime committed; or impose thresholds with respect to the nature of the crime committed such as debarring those prisoners who have committed heinous crimes such as murder or rape, or those convicted of terrorism charges (as done in the case of Germany). This enunciates the principle of proportionality that was used in the Hirst case. The third option can be to empower the courts to exercise their discretion in determining the right to vote, on a case to case basis. But in a country like India, where the judiciary is overburdened with innumerable cases and backlogs, this option may not be feasible to pursue.

Therefore, it becomes indisputable that India needs to come to consensus with the evolving state practices, the judgments of apex courts of various countries, provisions of various treaties and international documents and their harmonized interpretations to remove the blanket ban imposed on all the prisoners; especially the undertrial prisoners. This would not only lead India to uphold the principles of universal suffrage and civil and political rights within the country; but also contribute towards the emerging consensus to do away with the blanket ban on enfranchisement of prisoners.

7

Conclusion

It is now crystal clear that there is an emerging trend towards enfranchisement of prisoners by a significant number of nations all over the world. India should thus, take into consideration the international documents and treaties by interpreting

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them in a liberal and harmonized manner, the decisions of various courts and emergent state practice in order to grant voting rights to all its prisoners, or may adopt the rule of proportionality, as a number of nations are practicing. The point being the manner in which disenfranchisement laws are playing out in India deprive not just convicts with differential nature of sentences the right to vote, but also undertrials and detainees who are divested of their basic civil and political right to participate in the affairs of their country. This section of people is being denied their rights even when they have not been proven guilty by any court of law, thus departing from the principle of ‘innocent until proven guilty’ which is one of the basic foundations of criminal law. The purpose of rehabilitation and reformation of prisoners enunciated in a number of international documents, conventions and treaties would thus be difficult to achieve if prisoners are systematically excluded from the community by divesting them of their basic civil, political and human right. Efforts should thus be made by the government of India to enable inmates to vote in the elections through its machinery and resources.

References 1. American Convention on Human Rights, 1969., United Nations 2. Basic Principles for the Treatment of Prisoners, 1990., United Nations 3. General Comment No. 25: The right to participate in public affairs, voting rights and the right of equal access to public service (Art. 25), 1996. Equalrightstrust.org [online], 4. International Convention of the Elimination of All Forms of Racial Discrimination, 1965., United Nations 5. Universal Declaration of Human Rights, 1948., United Nations 6. Vienna Convention on the law of treaties, 1969., United Nations 7. Anukul Chandra Pradhan v. Union of India, 1997., 8. August v. Electoral Commission, 2014., 9. Hirst v. United Kingdom, 2006., 10. Loizidou v. Turkey, 1995., 11. Minister of Home Affairs v. NICRO, 2004., 12. PUCL v. Union of India, 2003., 13. Sauvé v. Canada (Chief Electoral Officer), 2002., 14. State of Andhra Pradesh v. Challa Ramkrishna Reddy, 2000., 15. State of Maharashtra v Prabhakar Pandurang, 1966., 16. T.V. Vatheeswaran v. State of Tamil Nadu, 1983.

17. ABEBE, ADEM KASSIE. In Pursuit of Universal Suffrage: The Right of Prisoners in Africa to Vote. The Comparative and International Law Journal of Southern Africa. 2013.

Vol. 49, no. 3, p. 410-446.

18. KAUR, BALJEET, 2019, Prisoners' Right to Vote: Citizen without a Vote in a Democracy Has No Existence. Economic & Political Weekly. 2019. Vol. 54, no. 30.

19. BOSE, RAKHI. 'One Can Contest Elections From Jail, Why Not Vote? Three UP Law Students are Fighting for Prisoners' Rights.’ News18 [online]. 2019. [Accessed 5 May 2020]. Available from: https://www.news18.com/news/buzz/one-can-contest-

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21.

22.

23.

24.

25.

26.

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elections-from-jail-why-not-vote-three-up-law-students-are-fighting-for-prisonersrights-2093799.html.

PATEL, ANAND. ‘Nearly 50 per cent MPs in new Lok Sabha have criminal records’. India Today [online]. 2019. [Accessed 10 June 2020]. Available from: https://www.indiatoday.in/elections/lok-sabha-2019/story/50-per-cent-mps-new-lok-sabha-criminal-records-1534465-2019-05-25.

RAUTRAY, SAMANWAYA. ‘Supreme Court judges ponder over rights to property, vote’. The Economic Times [online]. 2017. [Accessed 10 June 2020]. Available from: https://economictimes.indiatimes.com/news/politics-and-nation/supreme-courtjudges-ponder-over-rights-to-property-vote/articleshow/59946244.cms.

VERMA, SUBODH. ‘Muslims, dalits and tribals make up 53% of all prisoners in India’.

The Times of India [online]. 2014. [Accessed 5 May 2020]. Available from: https://timesofindia.indiatimes.com/india/Muslims-dalits-and-tribals-make-up-53-ofall-prisoners-in-India/articleshow/45253329.cms.

African [Banjul] Charter on Human and Peoples' Rights, 1986., African Commission on Human and Peoples' Rights Code of Good Practice in Electoral Matters, 2002., European Commission for Democracy through Law, Venice Commission Convention for the Protection of Human Rights and Fundamental Freedoms, 1950., European Convention on Human Rights Summary: International Covenant On Civil And Political Rights (ICCPR) - CCLA, 2015. CCLA [online],

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3 Military Mission v. Human Rights: The Legalities of Derogating from the ECHR in times of Armed Conflict Daniel Fitzgerald1 Mississippi College School of Law, Jackson MS 39201, USA dpfitzgerald@mc.edu

Abstract. Brexit, the process by which the United Kingdom (UK) exited the European Union is one of the most consequential and controversial political happenings of the 20th century, affecting law, culture, history, international relations, domestic policy, and human rights within the UK. A major aggravating factor that caused the referendum leading to Brexit was the compelled compliance of European Union (EU) law on British military policy at home and abroad. This caused major outrage among British citizens and government officials who felt concerned that their military could not safely perform their duties abroad. In 2013, former Prime Minister David Cameron, in an effort to win the support of Euro-Skeptics, (a group of people within the UK that thought that the country should not be in the EU and that the EU exercised too much power over the UK), promised a referendum on whether or not the UK shall remain in the European Union. By a vote of 52% to 48%, the majority of voters voted to leave to the EU. Two recent European Court of Human Rights (ECtHR) cases illustrate how supranational institutions have influenced UK human rights law in areas of military law, armed conflict, and British involvement in the Iraq War. These cases have held that the UK is still under their obligations to protect human rights and the European Convention of Human Rights (ECHR) applies in combat operations abroad. This paper will examine the practical effects of these rulings, the impact that these judgments have had on the military (and the militaries ability to carry out its operations effectively), the jurisprudential history of jurisdiction in combat zones, the application of the European Convention on Human Rights in those zones, and the possible legal derogation of the ECHR by the military in times of armed conflict.

Keywords: Derogation, ECHR, Armed Conflict, Military.

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UK Military Operations in Iraq

In 2003, Great Britain and the United States began combat operations in Iraq with the express goal of removing Saddam Hussein from power. On April 5, 2003, approximately two weeks after the initial invasion, the British troops captured Basra. On May 1, 2003, major combat operations in Iraq were completed and the reconstruction efforts of Iraq began. To facilitate this task, the Coalition Provisional Authority (CPA) was established to promote safety and security, as well as deter hostilities. In order to accomplish this goal, the CPA eliminated the chemical and biological weapons that Iraq had, promoted accountability for crimes and atrocities committed by the previous Iraqi regime, and facilitated the orderly and voluntary return of refugees and other displaced persons. (Greenstock, 2003). The CPA was a temporary caretaker of Iraq until a permanent democratic system of government could be established in the country. CPA was divided into regional areas with the UK covering Iraq’s southwest region. (Al-Skeini v. The United Kingdom 2011). The 8000 British troops in these areas were responsible for policing activities, security operations, and being a liaison with the CPA in their continued efforts to help rebuild Iraq. This was not an easy task and according to UK Military records, there were 178 demonstrations and 1050 violent attacks against coalition forces as of June 30, 2004. Between May 2003 and March 2004, forty-nine Iraqis were killed when violently engaged with British forces. (Al-Skeini v. United Kingdom 2011). It is against this difficult backdrop that instances that gave rise to the following cases.

1.1

The deaths of Iraqi nationals

The case of Al-Skeini and others v. The United Kingdom involved multiple lawsuits resulting from the deaths of Iraqi nationals in the British controlled provinces of Iraq following the invasion and during the attempted reconstruction of Iraq. The lead Applicant was, Mazin Jum’Aa Gatteh (the Applicant) Al-Skeini, the brother of Hazim Al-Skeini. The Applicant claimed that his brother was killed by British soldiers on August 4, 2003, while engaged in receiving guests for a ceremony. According to the Applicant, he had no idea why the British soldiers fired upon his brother. The following day, a British soldier identified as Sergeant A., who fired the shots, submitted a written report to the commanding officer. The commanding officer determined that the incident and the use of force fell within the Rules of Engagement. (Al-Skeini v. United Kingdom 2011).

The second Applicant to this case was shot by another British soldier, identified as Sergeant C, from the British military on the night of November 6, 2003 after a raid by the military during a Ramadan festival. (Al-Skeini v. United Kingdom 2011) According to the British military concerning the incident, they had received intelligence which proved later to be false, and it was this false information that led to the death of the applicant’s husband. Per protocol, Sergeant C. produced a report, then submitted it to his commander. The commander determined that the soldiers’

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actions fell within the Rules of Engagement and did not require any further investigation by the Special Investigation Branch (SIB). The SIB investigates suspected breached of the Rules of Engagement and determines if legal and/or disciplinary action should be taken. (Al-Skeini v. United Kingdom 2011) The third applicant’s death resulted from collateral damage from gunfire between British troops and an unknown gunman on the night of November 10, 2003. (Al-Skeini v. United Kingdom 2011) As with the previous two incidents of deaths, a report was submitted by the soldier involved in the incident and forwarded to the commanding officer. The unit’s Company Commander produced a report describing the incident. This report was forwarded to a superior officer, identified as Colonel G, who determined that the incident fell within the rules of engagement and forwarded this to Brigade. The report it was reviewed by Brigadier Jones, who discussed this report with his officers and his legal advisor. Brigadier Jones determined that no further investigation was warranted. (Al-Skeini v. United Kingdom 2011) The three remaining Applicants’ individual cases are more complex and required investigation by the Special Investigation Branch. The fourth applicant was the brother of one Mr. Muzban, who was driving a mini-bus on August 24, 2003, and according to witness statements was shot upon for no apparent reason by the British troops. (Al-Skeini v. United Kingdom 2011) According to the report by the British soldiers, the deceased was driving the minibus in a suspicious fashion, refused to follow commands, and evaded the patrol that the British troops had set up in that area. The report further stated that the deceased appeared to be reaching for a weapon, at which point Lance Corporal S fired upon the minibus. It screeched to a halt and the deceased was ordered to get out of the bus, which he did. He succumbed to his injuries. (Al-Skeini v. United Kingdom 2011) The SIB commenced an investigation, recovered evidence from the scene, and interviewed multiple witnesses. A report was issued to the commanding officer, Colonel G, who recommended that the SIB continue to investigate. Colonel G’s superiors disagreed with him and, after discussing the incident with the legal team, determined that this matter should be investigated by the unit and that no further investigation by the SIB was necessary. The matter was reviewed by the unit and it was determined that Lance Corporal S had acted within the rules of engagement. (AlSkeini v. United Kingdom 2011) Following the applicants’ appeal for judicial review, the SIB reopened the case and it was referred to the Army Prosecuting Authorities in February 2005. The Army Prosecuting Authorities reviewed the incident to clarify ambiguities and uncertainties. The case was then sent to the Attorney General and it was decided that no legal action be taken concerning this incident against Lance Corporal S. (Al-Skeini v. United Kingdom 2011) The fifth applicant is the father of, Mr. Ali who died May 8, 2003 age 15. On that day, Mr. Ali did not return home and it was later determined that he had been arrested along with other Iraqi youths the previous day. It was later determined that Mr. Ali and the other youths were subsequently beaten and forced into a body of water. The fifth applicant found his son’s body on May 10, 2003. He then contacted British authorities and wished for an investigation to be conducted. At a meeting with the SIB, the fifth applicant was informed that an investigation would be commenced. The investigation revealed that wrongdoing had been done by the British

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troops and, 18 months later, the applicant was told that the British troops involved in the incident would be charged with manslaughter in England. By the time the disciplinary proceedings concluded, the soldiers involved in the incident had left the Army and the other two were absent without leave. The process of the proceedings did not result in legal consequences and as a result the applicant brought civil proceedings against the Ministry of Defense, upon which he won a civil judgement for the wrongful death of his son. (Al-Skeini v. United Kingdom 2011) 1.2

The Judgments of the Domestic Court

On March 26, 2004, the Ministry of Defense decided (i) not to conduct independent investigations of the deaths of the Iraqi nationals, (ii) not to accept liability for the deaths, and (iii) not to pay just satisfaction. (Al-Skeini v. United Kingdom 2011) The families asked for a judicial review of this decision by the Ministry of Defense.

The Divisional Court dismissed claims of the first four applicants and found that there had been liability for the fifth and sixth applicant. In their judgment, the court relied on existing European law jurisprudence. The court argued that jurisdiction, under Article 1 of the ECHR, extends to territory only, but that there are exceptions. (Banković v. Belgium 2001) These exceptions include where a State Party has effective control over an area outside of its own territory. Applying the existing precedent, the court ruled that the last two applicants fell within the jurisdiction of the UK since it was a British controlled prison in which the fifth applicant died, a breach of Articles 2 and 3 of the ECHR. The first four applicants, whose claims were dismissed, appealed to the Court of Appeals and the judgement of the Divisional Court were affirmed. In regard to the sixth applicant, the Court of Appeals found that their liberty of movement was restricted and therefore fell within the control of the British troops, thus they were under the jurisdiction of the UK. The Court of Appeals concluded that these set of facts fell within the doctrine of “State Agent Authority”, and these four applicants’ cases did not meet the standard for this doctrine.

The same four applicants appealed to the House of Lords, which affirmed both the judgments of the Divisional Court and the Court of Appeals. The House of Lords relied on existing case law, ruling that the applicants did not fall within the jurisdiction of the UK as defined by Article 1. The Lords further reasoned that even though the British Military was in Basra, Iraq at the time, it did not mean the British Military were in effective control of the region, with the exception of the British prison and the Iraqi Nationals being arrested by the British troops.

1.3

The Submission to the European Court of Human Rights

The four applicants mentioned above, led by Mr. Al-Skeini, the lead applicant, having been unsuccessful in the domestic courts, applied to the ECtHR. The question for the ECtHR to address was: “What the definition of jurisdiction was, but

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more specifically should that definition be broadened to areas of conflict and overseas troop deployment?”. The answer and their judgment would determine whether or not the four applicants fell within the UK jurisdiction, and if their convention rights had been breached. In order to determine this, the ECtHR looked at existing case law, as well as the facts on the ground at the time. They relied heavily on the actions of the British troops in Iraq and what amount of control the British soldiers exercised at the time in the Basra regions. The applicants relied on the facts on the ground and the mission of the British military, which was: public order, supporting the civil administration, as well as the safety and security of civilians. In these duties, the British military was operating within the wider context of the UK’s occupation of south-east Iraq. (Al-Skeini v. United Kingdom 2011) In their pleadings to the ECtHR, the British government relied on the existing case law from the ECtHR, reiterated the arguments that they had made in the domestic courts in arguing that jurisdiction is territorial, and thus did not fall within one of the exceptions.

The ECtHR ruled in favor of the four applicants. The court reasoned that the applicants had fallen within the UK’s jurisdiction, and that the actions by the UK government had violated the convention rights of the applicants, specifically violated Article 2: the right to life. The ECtHR ruled that the UK military had effective control over the Basra region of Iraq due to its duties, functions, and missions within the region. The ECtHR, while not overruling their previous decision in Bankovìc and Others v Belgium and Others, broadened the meaning of “jurisdiction” and extended the territorial requirement of Article 1. The ECtHR, differentiated Bankovíc from the current case, as that was a NATO operation and the coalition of nations involved in that conflict were under NATO control. In Basra, the British military were responsible for much more than combat operations. The British military had a nation building mission and a safety and security mission, which together included coordinating and supporting the local administrative body, maintaining order in the region, while under dangerous conditions in which multiple Iraqi and British nationals were killed.

2

The legal issues and the interesting dichotomy between existing international law regimes

The ECtHR ruled that the British soldiers in the Basra region of Iraq had violated the convention rights of the four applicants for the reasons described above. The British military, through the process by which a civilian death at the hands of a British soldier is investigated, did not violate Article 131 of the Fourth Geneva Convention. Article 131 states that: “every death or serious injury of an interned, caused or suspected to have been caused by a sentry, another internee or any other person, as well as any death the cause of which is unknown, shall be immediately followed by an official enquiry of by the Detaining Power. A communication on this subject shall be sent to the protecting power. The evidence of any such witnessed shall be taken, and a report including such evidence shall be prepared and forwarded to the said Protecting Power. If the enquiry indicated the guilt of one or more persons, the

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Detaining Power shall take all necessary steps to ensure the prosecution of the person or persons responsible.” (International Committee of the Red Cross 1949) The Courts’ ruling is controversial within British politics, and within the military, as it broadened Article 1 of the ECHR in times of war and undermines the mission of the UK military in times of armed conflict. It is arguable that the ECHR should only apply to the territory as defined under Article 1, with the exceptions that the Court of Appeals of the UK indicated by following the Bancovíc approach in their ruling. The legal question that must be answered is whether or not the Court is the best arbiter of reviewing their jurisprudence in areas of occupation and armed conflict. Specifically, can the UK government declare that the military is exempt from their obligations of the ECHR in very limited circumstances and does armed conflict abroad justify derogation from their obligations under the ECHR?

3

Possible Ways Forward: Derogation

On October 4, 2016 Michael Fallon, the Minister of Defense, issued a statement claiming that the UK Military will derogate from the ECHR in future conflicts. (Walker et al 2016) Prime Minster Theresa May added that this decision is in response to “an industry of vexatious claims” against soldiers, and the change would “put an end to the industry of vexatious claims that has pursued those who served in previous conflicts”. This would be implemented by introducing a “presumption to derogate” from the ECHR in warfare. (Walker et al 2016) The process by which derogation of the convention rights takes place is found in Article 15 of the ECHR, which states: “In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law. (European Convention of Human Rights 1950) Since there has been much case law defining and applying the provisions in this article, a review of the history and an application to the present legal question is useful.

Article 15(1) stipulates that the derogation must be in time of war, other public emergency, and must threaten the life of the nation. The ECtHR in the case of Lawless v. Ireland has defined this as meaning: “an exceptional situation of crisis or emergency which effects the whole population and constitutes a threat to the organized life of the community.” (Lawless v. Ireland 1960) The Court went onto the say that the threat need not be imminent and that dangers effecting only a part of a state can amount to a public emergency.

The Court has never said that the crisis or state of emergency be temporary and in fact can last many years, as was the case with the Troubles, (Ireland v. United Kingdom 1978), and the aftermath of the 9/11 terrorist attacks. (A and Others v. United Kingdom 2009) The Court has clarified that the option of defining what constitutes a public emergency is left to the states. The Court reasoned that individual states are better equipped than an international judge to assess the situation on the

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ground, as well as the extent and severity of the emergency. The Court caveats this by arguing that the contracting states do not have unlimited discretion and the domestic margin of appreciation is accompanied by European supervision. (Brannigan v. United Kingdom 1993) It is arguable that the United Kingdom’s operations in Iraq meet the provision of Article 15. By ruling in favor of the four applicants (becoming the case of Al-Skeini and others v. United Kingdom and Al-Jeddah and Others v. United Kingdom), the Court broadened the definition of jurisdiction by finding that the British military had jurisdiction over Basra under Article 1 of the ECHR. Given the dangers posed to both British military personnel and Iraqi nationals (see above), the conditions would satisfy the definition of an exceptional situation of crisis or emergency.

Article 15(2) states that the derogation goes so far as “strictly required by the exigencies of the situation.� (European Convention of Human Rights, 1950) The Court has given the contracting state a wide margin of appreciation to determine this, but caveats this with the limitation that basic fundamental rights found in a democratic society may not be infringed upon, including: tolerance, pluralism, or broadmindedness. (Hasan v. Turkey 2018) The Court examines this provision on a case by case basis on the merits. The Court considers factors such as: whether ordinary laws were sufficient to meet the dangers caused by the public emergency (Lawless v. Ireland 1960), whether the measures were used for the purpose for which they were granted, (Brannigan v. United Kingdom 1993), whether the derogation was limited in scope, and the reasons advanced in support of it. (Brannigan v. United Kingdom 1993) In an application of the Courts reasoning to the events in Iraq, and arguably other war zones in which the UK military is present, this provision is satisfied, as long as the derogation was limited in scope. The region was under a state of emergency so long as the conditions in Basra had not improved, there was no sufficiently trained police force to maintain law and order in the region.

Article 15(3) provides that derogation is proper provided that the contracting state continues to apply their existing obligations under existing international law. This presents an interesting dichotomy between the ECHR and other international law, since the Court itself recognized that the UK complied with the Geneva Conventions and other international law in their discussion in both the Al-Skeini and the Al-Jeddah cases. The case law does not provide as much guidance on this provision as the other two provisions but has ruled that the convention must be interpreted in accordance with international law such as the Third or Fourth Geneva convention in the absence of a derogation in the context of an international conflict. (Hassan v. United Kingdom 2014) In order for a state to properly derogate from its convention rights it must notify the Secretary General; normally in writing outlining the public emergency and the scope of the derogation, as well as the legal texts supporting the decision to derogate. This notification must also extend as soon as possible to the other Contracting States without undue delay. There does not seem to be a requirement that the notification be done before the measure in question has been introduced, but does not provide a timeframe for when the notification needs to be given.

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A practical and legal analysis of derogation for the UK military

While it can be argued that the derogation of the ECHR by the UK military in times of war is legal as long as the derogation falls within the provisions of Article 15, the question now becomes one of practicality. The UK government has not been successful in the European Court of Human Rights and is left in a precarious position.

The recent rulings have left the UK in violation of the convention rights, and have undermined operational and military security operations, while still being compliant with other obligations of international law.

The UK military cannot properly carry out their mission if they are bound by the rigid structure of the ECHR without derogation, as the soldiers will arguably always be hesitant to carry out their duties to the fullest extent necessary due to fearing repercussions by an international court after lawsuits by families of those killed in times of war.

Is the European Court of Human Rights the best arbiter of military policy and operations if they act within the rules of engagement and within the policies set out to investigate the deaths of combatants and non-combatants? The case of Al-Skeini provides a good example to these difficult questions, as the RoE were followed after all deaths of Iraqi nationals (according to the reviewing officer), and proper procedures were followed in cases in which more investigation was warranted. The British military even re-opened the aforementioned case and charged soldiers with crimes resulting from their actions. This is appropriate action and policy. Article 15(2) gives the contracting state a wide margin of appreciation to examine the situation on the ground and determine if derogation is warranted. This wide margin of appreciation should also extend to the UK military as they are the best suited to review action by their soldiers, review all shootings to determine whether or not they fall within the rules of engagement, and to prosecute if necessary (which they did in two instances.)

The question still remains whether or not the derogation of the ECHR rights applies in military operations abroad. There has never been a derogation in times of armed conflict, but the military can derogate. In order for the derogation to be legal the contracting state must argue that the term “nation” refers to deployed areas of military conflict such as Iraq or Afghanistan. The Court has not been clear on this issue, but they ruled in Al-Skeini that Article 1 applied extra-territorially broadening the Bancovic principle. In that case, the Court agreed with the states that the derogation under Article 15 must be read and analyzed in conjunction with the definition of jurisdiction. Thus, the Court has suggested that the derogation of the ECHR can apply to deployed military situations; and that the term “nation” does refer to third party nations in which the military is deployed, so long as the procedures outlined in Article 15 are met. As the Court ruled that Article 1 applies extraterritorially in times of armed conflict, it logically follows that the term nation would apply to those areas of armed conflict and thus fall squarely within Article 15. While the UK did not derogate from their obligations in Iraq, they have a very

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strong argument that they can derogate in future conflicts given the recent changes in case law and the Court’s reasoning. (Hassan v. United Kingdom 2014) 3.2

In conjunction with existing international law

Article 15 stipulates that the contracting state may derogate so long as this derogation is not inconsistent with their obligations under existing international law.

This then begs the question of whether or not derogation has the same effect and leads to the same result if the Third and Fourth Geneva Convention is applied. In the case of Hasan v. United Kingdom, the Court did not specifically indicate or answer the question of whether Article 15 applies extraterritorially. This case reviewed the UK’s action of detention of an Iraqi citizen, and whether his convention rights were violated most notably: Article 5. Given the facts of this case, the detention was unlawful under the ECHR, but would have been lawful under other international law.

This presents a problem for the Court as there are two sets of laws that are vital to the interpretation, and the application, of the convention rights in the context of derogation. In the Hassan case, the Court argued that “the lack of formal derogation under Article 15 does not prevent the Court from taking account of the context and the provisions of IHL when applying Article 5 in this case.” (Hassan v.

United Kingdom 2014) In support of this conclusion, the Court relied on the interpretation of the Vienna Convention on the Law of Treaties. Article 31(3)(b) stipulates that the practice of the contracting party must be taken into account (Vienna Convention on the law of treaties, 1969) The convention further states that the convention must be read in harmony with other rules of international law, of which the convention forms a big part. (United Nations, 1969) It can be argued from the Courts reasoning in Hasan and the Conventions on Treaty Interpretation that the derogation continues to be legal. Other sources of international law continue to apply and are supreme if there exists a conflict as it did in the Hasan Case. In principle and following from this logic, it would appear that the safeguards of the convention would continue to apply as it normally would, however it must be interpreted against the background of other international law as required. In Hasan, Al-Skeini, and Al-Jeddah derogation was not triggered, but these cases provide a strong foundation and legal basis for legal derogation in the future of military conflicts in which the British Military is involved abroad.

Conclusion The military operations that occurred in Iraq were without a doubt some of the most controversial decisions that the UK government has made in many years.

There was intense public backlash and, as the war became more costly, the government lost more of the public’s support. One of the most prevalent arguments that occurred throughout the Brexit debate is the amount of control that the EU has had on the UK through its laws, regulations, directives, and rulings against the UK government for violations of EU law. This has (according to the Theresa May Government) continued to lead to vexatious claims and undermines military operations.

While it is important that there be a balance of efficient military operations that

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follow the rules and procedures laid out by the military, it is also important to abide

by EU law, so long as the UK is legally a member of the EU, and its obligations under international law so as to protect humans rights in compliance with the Human Rights Act of 1998.

The actions by the UK military, that gave rise to the claims in both the domestic and EU courts, was legal and fell within the laws of the domestic courts and the military. The Courts decision re-evaluated its prior jurisprudence, as well as extended the scope and application of the ECHR. Is this sufficient and is this a sustainable decision? Who is the best entity to make the rules of engagement, the military procedures in a war zone, and the process by which soldiers run afoul of these rules? It can be argued that it is the military itself that is best suited to deal with military operations and the conduct of its soldiers. It can also be argued that there are efficient protocols in place to deal with any issues that may arise, as seen in both Al-Skeini and Al-Jeddah. This is one of the reasons why the May Government has indicated its intent to derogate from ECHR, so as to limit the number of claims that arise out of similar transactions. While they have not yet done so, and while the decision to do so would be met with extreme controversy, under existing EU case law and recent changes to it, the UK would be within its legal right to derogate from the ECHR for future military operations abroad. They may do so long as they continue to safeguard human rights under the relevant articles of the ECHR, HRA 1998, and other relevant international law by which they are bound.

References 1.

2.

3.

4.

5.

6.

7.

8.

9.

10.

A and others v. the United Kingdom, 2009.

Al-Jeddah v. The United Kingdom, 2011.

Al-Skeini and Others v The United Kingdom, 2011.

Bancovic and Others v Belgium and Others, 2001.

Brannigan v. United Kingdom, 1993.

Hassan v. United Kingdom, 2014.

Ireland v. United Kingdom, 1978.

Lawless v. Ireland, 1960.

Mehmet Hasan v. Turkey, 2018.

INTERNATIONAL COMMITTEE OF THE READ CROSS, 1949, Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva : ICRC. 11. WALKER, PETER and BOWCOTT, OWEN, 2016, Plan for UK military to opt out of European convention on human rights. The Guardian [online]. 2016. [Accessed 13 May 2020].

Available from: https://www.theguardian.com/uknews/2016/oct/03/plan-uk-military-opt-out-european-convention-human-rights.

12. UNITED NATIONS, 1969, Vienna Convention on the Law of Treaties. Vienna: United Nations 13. COUNCIL OF EUROPE, 1950 European Convention on Human Rights. The Hague: Council of Europe.

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4 Protecting the Populations of Sinking States: Applying and Adapting International Law Vishaka Ramesh and Vishesh Bhatia NALSAR University of Law, Hyderabad, India, 500101 vishaka.ramesh@gmail.com; vishesh.bhatia.rubicon@gmail.com

Abstract. Climate change, and the consequent rise in sea-levels across the World has resulted in the loss of territory, as coasts move inwards. This problem has manifested severely in the case of small island States such as Tuvalu and Kiribati, which are at risk of the entirety of their territory being rendered uninhabitable, either due to inundation or due to being submerged.

The inevitable consequence is that the entire population of these States will be rendered stateless, and will be forced seek protection under international refugee law. Unfortunately, as international law has never faced a situation where the entirety of a State’s territory has been rendered uninhabitable and the population made stateless en masse, international law will need to adapt to protect these populations. This paper places the population of these vulnerable States at the centre of its analysis, as it seeks international legal solutions for the protection of such individuals. In doing so, it first extensively analyses the inevitable chain of causation: perils to statehood lead to entire populations being rendered stateless, and these populations then seek protections under international refugee law. It then examines how the statehood of these States may be protected under international law, to ensure these populations are able not rendered stateless. It then moves beyond statehood, and explores how international law may be applied and may adapt in a form that will provide protections to these populations, in the form of systems based on the United Nations Trusteeship Council and the Responsibility to Protect. In conclusion, it finds that international law may indeed be applied in its current State or may be adapted to ensure that these vulnerable populations are protected.

Keywords: climate change, statehood, statelessness, island States, self-determination, environmental refugees.

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Introduction

The effects of climate change and global warming are increasingly being felt across developed and developing countries alike. One of the most direct and welldocumented effects of this is a global rise in sea levels as a result of melting glaciers, which has resulted in an inward shift of coastlines (Stephens 2015). States across the World are finding themselves confronting this challenge. For instance, a number of cities on the eastern coastline of the United States have had their territory diminished due to inward movement of coastlines as a result of climate change (Reuel 2019). Isle de Jean Charles in Louisiana, in the United States, is a particularly acute example of the sinking of such territory. The Isle is populated predominantly

by Native American minorities, and has lost around 98 percent of its landmass to the sea. As a result, vast numbers of its population have been forced to relocate to other areas, and have thus had to abandon their places of origin, their homes, and their domestic, economic, social and cultural life (Boyd 2019). Rising sea levels have caused similar diminishments of territory and relocation of inhabitants across the globe, resulting in significant economic, social and cultural strife to members of coastal societies. This rise in sea levels has resulted in international law being confronted by an unprecedented challenge: what happens when the entirety of a State’s territory is rendered uninhabitable?

The strife caused to populations by disappearance of territory however is not restricted solely to the internal displacement of communities of peoples within existing States – it is increasingly posing a threat to the very existence of States themselves. Today, many small, developing island States such as Tuvalu, Kiribati, Vanuatu, Maldives and the Marshall Islands are facing questions of whether or not they will continue to exist (Willcox 2016). The entirety of the territory under the control of these island States is at risk of becoming uninhabitable, either due to inundation as a result of excessively high saline levels, or due to these territories being completely submerged (Roy 2019). When all of a State’s territory is no longer inhabited, two questions come to mind – can a State without its territory remain a State? And if not, what happens to its people?

The loss of statehood as a result of climate change will necessarily lead to widespread statelessness of the populations of the island States. Article 1 of the 1954 Convention relating to the Status of Stateless Persons defines a stateless person as a “person who is not considered as a national by any State”. Historically, the extinction of statehood has never been accompanied by a corresponding disappearance of territory (Crawford 2007). As the International Law Commission has noted, persons habitually residing in the territory of an extinct State will receive the nationality of the successor State that exercises effective control over that territory (Mikulka 1997). However, in the event that island States lose their statehood due to the unprecedented loss of territory, there will be no successor State to confer citizenship over the affected populations, thus resulting in complete statelessness of the affected population.

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While the concept of environmental refugees has developed to accommodate people forcibly displaced as a result of natural disasters (United Nations High Commissioner for Refugees 2019), it is unclear whether the current framework of international law can support instances where the entirety of a State’s population is threatened en masse.

As this paper shall illustrate, each of these effects of rising sea levels: sinking states, rising statelessness, and the creation of environmental refugees, pose significant challenges for international law. Therefore, this paper shall explore the current state of international law in regard to climate change induced statelessness, and provide a framework of solutions to preserve the rights of affected populations.

Section 2 explores the status quo under international law in relation to statehood, stateless populations and environmental refugees. Section 3 provides means of preserving the statehood of entities who have lost their territory as a consequence of climate change to prevent statelessness. Section 4 explores alternative frameworks to statehood that may nevertheless be relied upon to preserve the rights of stateless populations.

2

Understanding the Chain of Causation

2.1

The Root of the Problem: Extinction of Statehood

At the core of the problem of statelessness and the consequent creation of environmental refugees is statehood. The 1934 Montevideo Convention on Rights and Duties of States at Article 1 lays down the four most commonly-accepted criteria for determining statehood – a permanent population, a defined territory, a government and the capacity to enter into international relations, the latter of which is considered to mean independence. Small island States such as Tuvalu and Kiribati face the risk of losing the entirety of their territory to rising sea-levels, as noted previously in this article; yet territory is an integral criterion to determine Statehood. The question therefore arises as to what happens to States that permanently lose the entirety of their territory - do they cease to exist?

Many scholars have noted the importance of territory to statehood (Raic 2002); for instance, Judge Crawford has stated that “the right to be a state is dependent at least in the first instance upon the exercise of full governmental powers with respect to some area of territory” (Crawford 2007). Jessup, Jennings and Lowe all share this view (United Nations 1948; Jennings 1963; Lowe 2007). There is clear precedent emphasizing the importance of territory in the creation of states; entities such as the Sovereign Order of Malta and the Holy See, despite possessing populations, some form of government, and having entered into diplomatic relations and treaties, are not considered as States primarily due to the absence of territory (Wong 2013).

In light of the importance of territory in the creation of States, there is a very real risk that the complete and permanent loss of territory by island States could result

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in the extinction of their statehood. Though there is indeed a presumption of continuity of States, this has been opined as existing only when the loss of any of the accepted criteria of statehood, such as effective control over the population or territory, is only temporary and not permanent (Park 2011). There has been no instance in international law where a State has continued despite losing all of its territory permanently. Thus, many have argued that the permanent inundation or submergence of all of the territory of these island states may imperil their continued statehood. If the statehood of these island States is extinguished, then their entire population will be rendered stateless, as no succession of States will occur to uninhabitable territory.

2.2

The Link of the Problem: Statelessness

International law provides individuals with the right not to be arbitrarily deprived of their nationality, and seeks to avoid statelessness (Proposed Amendments to the Naturalization Provision of the Constitution of Costa Rica 1984; Universal Declaration of Human Rights 1948). Aside from de jure statelessness faced by populations due to the extinction of statehood, the people of the island States are also susceptible to de facto statelessness, where despite having an existing nationality, they do not practically possess the rights that arise with such nationality. Thus, if States such as Tuvalu and Kiribati lose the entirety of their territory leading to the relocation of their population, their citizens may still face the difficulties of de facto statelessness. McAdam has noted that the population of such states may not be treated as formally stateless even when for all practical purposes their statehood has effectively ceased (McAdam 2010). Thus, the United Nations High Commissioner for Refugees has recognised the possibility of de facto statelessness by arguing that the entitlements of refugee status be extended to de facto statelessness as well (Massey 2019); this does not appear to be the State of law currently, and is thus merely possible lex ferenda.

The difficulties created by statelessness are further compounded by the possible challenges in upholding the rights of the stateless when they are rehabilitated. Rehabilitation measures often ignore the economic and cultural impact of rehabilitating individuals to an area or a State that they have no connection with (Arnall 2019).

This may hamper such individuals’ full enjoyment of their right to social, cultural and political self-determination. As a result, rehabilitating States will have to ensure not just that the unity of individual families is maintained, but also that the resettlement is sustainable on a long-term basis from an environmental, economic, and social basis, and giving due regard to the culture, history and traditions of both the people being resettled and the new territory that will be accommodating them (United Nations High Commissioner for Refugees 2020).

Additionally, the operationalisation of protections of stateless individuals under international law is ill-equipped to address the needs of individuals made stateless due to the complete non-habitability of their States. International law currently

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does not provide for anticipatory migration, which implies that individuals must become stateless (in this case, their homes must become uninhabitable) before they can migrate (McAdam et. al. 2016); they cannot take preventive action against imminent statelessness. Should this challenge not be solved soon, it will manifest in the form of entire populations of States such as Kiribati and Tuvalu being rendered stateless and without protection for certain periods of time. These challenges created by statelessness make it imperative to examine whether the affected populations will be protected under international law as refugees, or whether they will instead be classified as environmental migrants.

2.3

The Culmination of the Problem: The Absence of Refugee Protections

It has been opined that individuals who are displaced from their States due to environmental circumstances ought to be treated as migrants and not refugees. The primary reason for this suggestion is that climate change based migration leads to internal displacement within the State itself, and that rather than being forcible, it is usually a voluntary re-settlement to escape the environmental damage caused to the original place of residence (Ionesco 2019). Furthermore, the definition of refugees under Article 1(A)(2) of the 1951 Geneva Convention Relating to the Status of Refugees covers individuals who are forced out of their country of nationality, on the basis of a “well-founded fear of persecution�; as climate change refugees are not forced out of their States due to persecution but rather due to natural disasters, it has been universally opined that they do not possess protections under this convention or its optional protocol. Some have attempted to justify the exclusion of environmental refugees from the definition of refugees by arguing that this would diminish the severity of the status of refugees struggling under political and religious persecution, humanitarian violations and war crimes, and that in light of the refugee crisis stemming from the humanitarian situation in Syria and similar situations across the world, such a status ought to be reserved solely for humanitarian refugees (The Economist 2020). Such a distinction in severity appears to be a shallow analysis of the problem; the uninhabitability of the territory of island-States and the consequent permanent and complete statelessness of their population would place them in a situation just as severe as that of humanitarian refugees. In fact, due to the severe, permanent displacement of statelessness of populations of island States and the possible extinction of their States’ statehood, it may be useful to examine a solution which preserves their nationality, and the sovereignty of their State.

3

Preserving Statehood to Prevent Statelessness:

The above section has indicated that the root cause of statelessness is necessarily statehood. Thus, it is this challenge we attempt to tackle first. Allowing

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island States to retain their statehood ensures that the rights of their populations are preserved, even if their territory becomes uninhabitable; post hoc solutions remain possible – for instance, Icelandic immigrants escaping natural disaster moved to an autonomous area in Canada called “New Iceland” which allowed them to be independently governed (Piguet 2019). Preserving the statehood and sovereignty of island States is therefore imperative in protecting their populations. Thus, this section will examine how the statehood of threatened island-States may be preserved in order to prevent statelessness.

De-territorialising Statehood and Focusing on the Population As stated previously in this article, territory is one of the fundamental criteria for the creation of a State; thus, one of the main reasons that island States such as Tuvalu, Kiribati and the Maldives have their statehood threatened is due to the risk of the entirety of their territory becoming uninhabitable. However, such arguments conflate creation of statehood with continuance. Indeed, there is much authority to indicate that territory may not play as significant a role - or even any role - in the continuance of statehood.

Vidas proposes that for the purposes of the continuity of statehood of sinking States, statehood may be de-territorialised, in order to employ an anthropocentric focus - an emphasis on population (Vidas 2015). This would involve treating the criterion of the population as the core of statehood rather than territory.

In fact, there is reason to question the alleged centrality of territory in even the creation of States. For instance, Albania was recognized as a State post the First World War despite not having settled borders (Shaw 2008). Similarly, Israel has been accepted as a State by the majority of nations and the United Nations, despite certain States raising questions over not only its territorial boundaries but also its existence as a State (Shaw 2008). Other examples include Burundi, Croatia, Estonia, Kuwait, Latvia, Rwanda and Zaire (Wong 2013). All of these examples indicated that territory may not be as strong a core of statehood as previously thought.

Judge Dillard in his Separate Opinion on the Western Sahara Advisory Opinion stated that “it is for the people to determine the destiny of the territory and not the territory the destiny of the people”. Years later, Judge Trindade in the Advisory Opinion on the Universal Declaration of Independence of Kosovo reiterated this view, noting that “people” are the most important element of statehood and that the territorially focused outlook on statehood was outdated (Separate Opinion of Judge Trindade 2010); these opinions are particularly relevant in light of the experience of island States.

Similar doubt has arisen in relation to the requirement that the population of a State necessarily be linked to the territory it claims; it has been argued that a State’s population may “migrate” from one territory to another, and thus the State may shift from one territory to another (Wong, 2013). This proposition has been brought on the basis of practice such as that of the African-Dutch community, which formed the Orange Free State, the African-Dutch Republic and the Colony of Natal after the cession of the Boer Colony to the United Kingdom in 1814; despite

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the migration of these people, these colonies maintained an identity recognized by other States, and were thus considered an example of an internationally constituted entity that has migrated. Thus, in the creation of statehood itself, there is reason to question whether territory is as important as argued to be. Continuance is another matter altogether, which must be studied distinctly from the creation of States.

This piece has previously noted that the presumption of continuity of statehood only exists when the absence of one of the criteria of statehood is temporary. While this initially appears true, it must be pointed out that States have gone for long periods of time without fulfilling one or more criteria of statehood, despite which the international community has continued to consider them as States (Wong 2013).

For instance, for over ten years, Somalia had no functioning government, and furthermore had no capacity to enter international relations as it could not represent itself at the United Nations General Assembly, had no international representation, possessed no embassies in other States and had shut down all foreign embassies in its capital. Despite going without two elements of statehood for well over a decade, Somalia continued to remain a State. Other states, such as Kuwait, Afghanistan and Ethiopia, which lost control over their territory for 8 months, 7 years and 10 years respectively, remained considered as States (Wong 2013). These cases illustrate that the presumption of continuity has existed for very long periods of time.

Some scholars, such as Grant, Shearer, Rayfuse and Crawford who have examined these instances have argued that they indicate not that the presumption of continuity applies only if deficiencies are temporary, but rather, that once a State has already been established and fulfilled the requirements of population, territory, government, and the capacity to enter international relations, then continuing to hold territory is unnecessary (Dixon, McCorquodale and Williams 2016; Costi, Ross 2017).

Additionally, it must be noted that States that continued to recognize Kuwait, Afghanistan, Ethiopia, and Somalia could not have been aware of when their lack of control over their territory would cease; this is strong evidence that the presumption of continuance is not dispelled if the loss of a State’s entire territory is permanent. Thus, it is entirely possible that for the purposes of continuance of statehood, territory may be entirely irrelevant. In this paradigm, States that have lost their territory to inundation or submergence will continue to remain States, irrespective of the absence of territory. Jane McAdam has therefore concluded that States which have lost the entirety of their territory to rising sea levels will continue to retain their Statehood under international law (McAdam 2010).

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Preserving Statehood through State Responsibility for Climate Change

When examining the impact of climate change on the legal rights and entitlements of island States, it is also important to consider the role of State responsibility for climate change. The International Court of Justice in its Corfu Channel case first iterated the principle of transboundary harm when it stated that States have a general obligation not to knowingly use their territory in a manner that is contrary to the rights of other States (Corfu Channel 1949). The Court in its Nuclear Weapons Advisory Opinion further endorsed this principle under environmental law, noting that States have a “general obligation … to ensure that activities within their jurisdiction and control respect the environment of other States” (Legality of the Threat or Use of Nuclear Weapons 1996). In this respect it has been suggested that State responsibility for transboundary harm may also be invoked for climate change related harm against States which have contributed historically towards greenhouse gas emissions (Verheyen, Tola 2004). In particular, historical emissions by OECD countries have been considered significant in contributing to climate change (Verheyen, Tola 2004). For this reason, island States including Vanuatu (Menon, Greenfield 2018) and Tuvalu (Jacobs 2005) have sought to initiate suits against States for their failure to take consistent efforts to reduce climate change.

In the event that climate change related submergence causes island States to lose effective control over their territory so as to cause statelessness, then the right of self-determination of the peoples of the island States would be threatened. Self-determination is guaranteed by Article 1(2) of the United Nations Charter; as per the United Nations’ Friendly Relations Declaration (UN Resolution 26/25(XV) of 1970), the right of self-determination, entitles a peoples to freely determine the “establishment of a sovereign and independent State… or the emergence into any other political status”. The right of self-determination has been consistently recognized by the International Court of Justice, and has also been considered by the Court to be erga omnes in character (Case Concerning East Timor 1995). The sudden loss of Statehood by the island States will deprive the populations of these States of their right to self-determination, thus creating a situation that falls afoul of international law. This further compound the fact that any extinction of statehood caused entirely due to climate change related damage will be the result of an internationally wrongful act.

In regard to the creation of States under international law, Lauterpacht has recognised that the principle of ex injuria jus non oritur takes precedence to ensure that no legal consequences or situations are created as a result of a wrongful act (Lauterpacht 1947). This principle has been widely applied in the practice of recognising statehood, as opposed to its counter-principle, ex factis jus oritur. For instance, South Africa’s attempt to establish the Bantustans as States in Africa and to

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seek recognition was rejected by the United Nations General Assembly, which noted that the origin of such entities was steeped in racial segregation, the policy of apartheid and crimes against humanity committed by South Africa (United Nations General Assembly 1971). The ex injuria principle can also be seen in application in Turkey’s illegal occupation of Cyprus, which led to Northern Cyprus declaring independent statehood against the Republic of Cyprus. The United Nations Security Council impliedly applied the ex injuria rule over the ex factis rule, and called upon all States collectively “not to recognize any Cypriot State other than the Republic of Cyprus” (United Nations Security Council 1983).

Lauterpacht’s endorsement of the ex injuria principle lay primarily in ensuring that the legitimate rights of a sovereign State are not deprived as a consequence of an illegal act under international law (Lauterpacht 1947). In this regard, the principle of ex injuria may be applied beyond instances of the creation of new States to prevent the extinction of existing States caused by unlawful situations. The principle of ex injuria has been specifically linked to recognition under international law in determining Statehood (Rossi 2015), and Crawford has noted that both the creation and the extinction of States cannot result from an act illegal under international law (Crawford 2007). Given that the potential loss of statehood of the island States originates as a result of a violation of the principle of transboundary harm, such an extinction of statehood will not be tenable under international law.

While it has been opined that the ex injuria principle will not apply un-controversially in every situation involving statehood, it is undeniable that any situation resulting in the violation of a peremptory norm cannot be recognised as lawful under international law (Nicholson 2019). The underlying reason for this principle has thus been understood as preventing such illegalities from crystallising over prolonged periods of time (Dawidowicz 2013). As has been previously discussed, the extinction of the island States will breach the right of self-determination vested in the populations of those States by depriving them of the ability to determine their own political, cultural, economic and social circumstance. This right of self-determination has been considered to have a peremptory stature under international law, thus imposing a general obligation not to recognise situations resulting in a breach of this right (Oeter 2012; Raic 2002). There is thus a collective duty upon States not to recognise the loss of statehood resulting from the submergence of island States.

5

Solutions Beyond Statehood

The above solutions have targeted the primary cause of statelessness and environmental refugees - the extinction of statehood. However, in light of the fact that international law has never before faced such a situation, it is imperative to examine possible solutions beyond the constraints of statehood. In pursuit of this objective,

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this portion of the paper shall put forth solutions that do not require the preservation of the State’s statehood in order to accord protections to such erstwhile States’ populations.

5.1

Relying on Trusteeship

One solution that has been suggested is to employ the United Nations’ Trusteeship system. The United Nations Trusteeship Council was originally created to enable self-governing former colonies to transition into full statehood and independence (United Nations Trusteeship Council n.d.). This system arose after World War II, and replaced the League of Nations’ mandate system, which had involved placing former colonies of the defeated powers post World War I under the tutelage of preexisting States in order to ensure the “well-being and development of such peoples” (Shaw 2008). The stated purposes of the Trusteeship Council, per Article 76 of the United Nations Charter, was the promotion of the political, economic, social, and educational advancement of the population with the objective of achieving selfgovernment or independence in those territories. The success of the Trusteeship System is clear from the fact that all of 11 of the Trusteeship Territories placed under the system have either achieved full statehood or voluntarily joined other States (United Nations and Decolonization n.d.).

It has now been suggested that the Trusteeship Council could be used to assist the Pacific island States, in the event that their statehood comes under threat. Under this framework, it is envisioned that even though island States such as Tuvalu, Kiribati and the Maldives may lose their statehood due to rising sea levels, their displaced populations may still continue to exist as independent, sui generis entities with the capacity to govern themselves, and this may be achieved through using the mechanism put in place by the United Nations Trusteeship Council (Juvelier, 2017). There are a number of benefits to utilizing the Trusteeship Council as a solution. The power to conclude and amend Trusteeship Agreements rests with the United Nations General Assembly, which ensures that the Trusteeship System, if applied, will be subject to international oversight.

As Juvelier notes, there are challenges to this proposal (Juvelier 2017). First, States that are at risk of losing their Statehood will have to arrange for territory to be provided by other States such as through private agreements; many have argued that such private agreements will not be sufficient “territory” for the purposes of statehood, but this would in no way impede the application of the Trusteeship System. States are already taking steps in this direction; for instance, the Maldives has started a sovereign wealth fund with the objective of utilizing those funds to relocate to another State (Harvard Business School 2016). Kiribati has purchased over 5000 acres of land in Fiji to relocate its population there (Ellsmoor, Rosen 2016).

Furthermore, sovereign leases are not unheard of, examples of which are those of Hong Kong and Macau (King 1916). The second challenge is that under Article 78 of the UN Charter, trusteeship does not apply to States that are members of the

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United Nations, but a broad interpretation of the UN charter may abate this problem (Juvelier 2017; Wong 2013).

In any case, the Trusteeship System need not be adopted in its entire sense, but rather used as a model for a system adapted specifically for sinking States. Different scholars have supported varying systems that are modelled on the Trusteeship System. For instance, Burkett has argued in favour of a de-territorialized ex situ nation (as opposed to a state) which remotely governs its population that is dispersed across the world. She envisions that the government of the erstwhile State may sit permanently in another State and remotely govern its citizens; she supports this form of de-territorialized nationhood by noting there are innumerable examples of independent de-territorialized entities that exist, such as the Maori and the Tibetans, as well as the Sovereign Order of Malta and the Holy See – the latter two of which exercise sovereignty and enjoy international engagement with States across the World (Burkett 2011). Jain has also advocated support for such a system, whereby a government seated in one State which possesses no territory is able to govern its citizens across the World (Jain 2014). Rayfuse has proposed a similar framework, where a de-territorialised state or state-like entity is located in another State and has an elected authority that acts as a “trustee” for the entity’s assets and represents its citizens in their host States in matters including advocating for their personal, cultural, political, linguistic and nationality rights (Rayfuse 2009).

Irrespective of whether the UN’s current Trusteeship System is applied through a liberal interpretation, or whether it is used as a model for a similar system, the fact remains that such a solution shows some promise. Such a system must take into account all of the rights and opinions of the population, as respect for this forms the core of the Trusteeship System.

5.2

Adapting the Responsibility to Protect

Environmental disasters have led to large-scale humanitarian catastrophes, which have only been exacerbated by climate change (United Nations High Commission for Refugees n.d.). The resulting situation from the submergence of islandStates, which results in large-scale permanent displacement and statelessness may be classified as a humanitarian disaster as well, one which is permanent and irreversible. In light of the humanitarian crisis that might be created as a result of climate change, it has been suggested that the concept of “Responsibility to Protect” may be appropriate when applied to instances of climate change induced statelessness as well.

In crystallizing the legal principles governing the Responsibility to Protect, the 2001 Report of the International Commission on Intervention and State Sovereignty noted that “State sovereignty implies responsibility … for the protection of the people” where such a “population is suffering serious harm as a result of … state failure” (Evans, Sahnoun 2001). The responsibility to protect as a legal notion has since been recognised by the United Nations General Assembly multiple times to

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ensure the protection of vulnerable populations from humanitarian crises (United Nations Security Council 2006; United Nations Security Council 2007; United Nations General Assembly 2009).

While the traditional definition of the responsibility to protect extends to humanitarian disasters, it has been proposed that the principle be applied to prevent the disastrous consequences following the loss of island statehood to ensure that the burden of rehabilitation is spread out throughout the international community (Seavitt 2014). This will place a legal and moral burden on States with a greater capacity to deal with environmental damage to assist in the mitigation of the damage, and in rehabilitation of displaced populations. The current situation demands that while States undertake the obligation to extend aid, protect and preserve the populations of the States affected, it is important to prevent the sovereignty and the rights of the peoples affected from being infringed upon. The statements of the French Foreign Minister that there was a responsibility to protect by providing aid to Myanmar in the wake of a large-scale environmental disaster demonstrate that the principle has been used in an environmental context in practice (Schuettler 2008).

The responsibility to protect for climate change is also rooted in the transboundary nature of the harm caused by pollution, and in the fact that the effects of the harmful production take place far beyond the borders of where they originate (Feldt 2013). In regard to the specific situation of forced migration as a result of statelessness, Martin suggests that the Responsibility to Protect regime extend beyond purely humanitarian causes for forced migration to include environmental migration as well (Martin 2010). This Responsibility to Protect will manifest as largescale and systematic action taken by the UNHCR to protect populations where States are unable to protect their citizens against forced environmental migration, as is the case for the island States (Martin 2010). It is thus important that the international community works together in ensuring the security and survival of the populations on the brink of climate change induced statelessness.

6

Conclusion

Sea-level rise has created risks of island States having their territory rendered uninhabitable due to inundation or submergence, as a result of which these States may have their very statehood threatened. These threats to their statehood imply that the entire populations of these States may be rendered entirely stateless. Such stateless populations will have to seek protection under the international legal framework governing refugees.

The objective of this paper has been to provide solutions centered on protecting these vulnerable populations from falling victim to statelessness, and consequently to becoming refugees. In doing so, it is clear that all the above three concepts are

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facing unprecedented challenges: statehood, the protection of stateless persons, and the protection of refugees.

However, it remains entirely possibly for international law to adapt and protect these vulnerable populations. The first thread of solutions relates to the protection of the statehood of threatened island States. One such method of preserving statehood under international law involves applying an interpretation of continuity of statehood which places little to no emphasis on the possession of territory; there is both past practice and authority in favour of de-territorialising both the creation and continuance of Statehood which provide support for this alternative. Another method of preserving statehood involves recognizing that the territory of these States is at risk solely due to unlawful transboundary harm carried out by other states; as the principle of ex injuria jus non oritur – which is well accepted in the law governing statehood - finds that no illegal act can have a legal consequence, it follows that this unlawful transboundary harm cannot result in island States losing their statehood, particularly as this would also imperil the self-determination of these vulnerable populations. Both of these alternatives apply existing international law to protect statehood and by extension, the vulnerable populations of threatened states.

The second strand of solutions involves protections of the population beyond existing notions of statehood. The first of these is a system based on the United Nations Trusteeship Council. Some have envisioned this as a simple revival of the UN Trusteeship system with minor amendments, under which threatened States may secure territory through inter alia private agreements with other States, post which either their existing government or other States will serve as administering authorities for the populations of threatened states. Others have argued in favour of a system modelled on the UN Trusteeship Council, with considerable amendment; this has been envisioned as involving the governments of threatened States being set up in other States, and governing their populations and entitlements remotely, with the populations residing as diaspora in other States. Beyond Trusteeship, some have argued that the Responsibility to Protect may also prove useful.

The expansion of this principle to environmental refugees would impose legal and moral burdens on third States to assist the vulnerable populations of threatened island States. Some governments have already supported a shift to such a system.

Thus, while rising-sea levels have caused severe strain on conventional understandings of international legal concepts such as statehood, statelessness and refugee protections, international law remains able to meet these challenges, both in its current form and with some amendment and adaptation. As the threat of climate change continues to become more dire, it is incumbent upon the international community to examine these possible solutions in order to protect vulnerable populations.

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Review Articles

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5 The Right to Self-Defense in Cyberspace and State

Opinio Juris Shamshir Malik University of Toronto, Toronto ON

shamshir.malik@mail.utoronto.ca

Abstract. Cyberspace has been declared the fifth theatre of armed conflict (in addition to land, sea, air, and space) by major State actors, as well as international organizations and scholarly experts. Efforts to expand the scope of traditional international humanitarian law applicable in the kinetic realm to fit the novel and anarchic nature of cyberspace have been undertaken, most notably by the Tallinn Manual Group of Experts and the United Nations (UN) Group of Governmental Experts. While non-binding codes of conduct have made considerable process in establishing international norms for acceptable state behavior in cyberspace, they have failed to achieve consensus between State parties on critical issue areas such as sovereignty, use of force, state responsibility and due diligence in the field of cyber warfare.

One of the unresolved issues is the applicability of the right to self-defense (jus ad bellum) under Article 51 of the UN Charter. State actors have failed to agree on the threshold of “armed attack� and the permissibility of the right to self-defense in accordance with the principles of necessity and proportionality in the cyber context. This article will assess the complexities of applying the jus ad bellum doctrine to cyberspace in a legal system with an evident dearth of consistent state practice. Furthermore, it will explore the possibility of using state opinio juris as a tool to fill the normative gaps in the governance of cyber-warfare.

Keywords: jus ad bellum, cyber, Tallinn Manual, United Nations, international humanitarian law, self-defense, armed attack, use of force.

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Introduction

As nations have become heavily reliant upon information systems and cyber infrastructure for the operation of critical functions (such as nuclear plants, water supply, banking systems, etc.) (Schmitt, 2013) technological advancement has enhanced state capacity, while simultaneously exposing states to a new range of external threats in the cyber realm. Examples of cyber-attacks in Estonia (2007) (Ottis, 2018) and (Connell, 2017) demonstrate how state actors can use non-traditional means of force such as cyber operations against other states and avoid consequences due to the lack of legal oversight in cyberspace. At present there is no binding regime to enforce international humanitarian law in cyberspace, however it has been widely accepted by States and experts that international law does apply to cyberspace in a normative sense. According to Michael Schmitt, a leading expert in the field of international law in cyberspace, “The United Nations Group of Governmental Experts10 and the Tallinn Manuals (Schmitt, 2017) provided the intellectual bedrock for other major efforts to give expression to international law in cyberspace that have come since” (Lété, 2018). While these efforts have been received in a positive light for strengthening the norms of international law in cyberspace, these efforts are a) not official sources of law and b) they have not succeeded in generating consensus between States on numerous key grey-areas of the law . Some grey-zones (Grey Zones in the International Law of Cyberspace, 2017) in the field of international cyberspace law which remain are: the application of the principles on ‘sovereignty’, state responsibility, due diligence, jus ad bellum and jus in bello.11 (Grey Zones in the International Law of Cyberspace, 2017). There exists a lack of State practice and explicit evidence of customary law principles to fill these legal gaps. States have shown resistance to actively developing the laws in cyberspace due to strategic concerns (Tracing Opinio Juris In National Cyber Security Strategy Documents, 2018). How can these normative gaps in the international law framework around cyberspace be filled? This paper will focus on the prevalent grey-zone around the applicability of jus ad bellum, and more specifically, the applicability of the right to self-defense (Article 51 of the UN Charter) in cyberspace. How do states approach jus ad bellum with respect to the UN Charter Article 51 on the right to selfdefense in cyberspace? More specifically, what are the conditions under which states claim that the right to self-defense is justified in response to a cyber operation?

See the Report of the Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security by the UN Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security (2015) 11 See Tallinn Manual 1.0. Rule 30. Cyber-attack is defined as a “cyber operation, whether offensive of defensive that is reasonably expected to cause injury or death to persons or destruction to objects.” Here, the scope of ‘cyber operations’ will be limited to interstate cyber warfare (state-on-state cyber-attacks) (Schmitt, 2013) 10

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2

The Right to Self-Defense in Traditional International Humanitarian Law

While Article 2(4) of the UN Charter explicitly prohibits States from exercising the threat of use of force against the territorial integrity or political independence of any state (Charter of the United Nations, 1945), Article 51 of the UN Charter provides an exception to this rule, that is the State’s right to self-defense in response to an armed attack. Two important requirements to assess the legality of “self-defense” under jus ad bellum are ‘necessity’12 and ‘proportionality’ 13, and that force must be used as a last resort. Although the UN Charter is a binding instrument of law, the terms “use of force” and “armed attack” have not been defined with clarity, which allows for flexibility in terms of interpretation to the States (Armed Attack, 2013) 2.1

Defining “Armed Attack” vs. “Use of Force”

A lack of treaty law can often successfully be tackled by customary international law and legal precedent. In a landmark judgement from the International Court of Justice (ICJ) on the matter of The Republic of Nicaragua v. The United States of America in 1986, the Court classified the use of force into two by using the ‘scale and effect’ criteria. 14 According to this distinction, it was established as custom that a “use of force” which does not meet the threshold of an “armed attack” does not warrant the right to self-defense (Armed Attack, 2013).

While this judgement marks the existence of a distinction between the terms ‘use of force’ and ‘armed attack’, it fails to define clearly when a ‘use of force’ crosses the threshold, to be called an ‘armed attack’ (Armed Attack, 2013). A second limitation to the right to self-defense arises due to the active role of non-state actors in armed conflict, which further leads to complications related to state responsibility and attribution (State Responsibility for Cyber Attacks: Competing Standards for a Growing Problem, 2011). The role of non-state actors in armed conflict should be See UN Charter, Chapter VII. Article 40. “In order to prevent an aggravation of the situation, the Security Council may, before making the recommendations or deciding upon the measures provided for in Article 39, call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable.”

13 “Proportionality” is a customary international law principle codified in the 1977 Protocol Additional to the Geneva Conventions of 1949. It is defined as the “principle that seeks to limit damage caused by military operations by requiring that the effect of the means and methods of warfare used must not be disproportionate to the military advantage sought.

(Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts (API), 1977)” 14 See Nicaragua v. United States of America (1986): “(1) most grave forms of the use of force (i.e. those that constitute an armed attack); and (2) other less grave forms of the use of force (i.e. organizing, instigating, assisting, or participating in acts of civil strife and terrorist acts in another State – when the acts referred to involve a threat or use of force, but not amounting to an armed attack. (ICJ, 1986)” 12

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recognized as a major constraint on a state’s right to self-defense (State Responsibility for Cyber Attacks: Competing Standards for a Growing Problem, 2011), however, the scope of this proposal will be limited to: a) the definition of ‘armed attack’ and b) the threshold of classifying a “use of force” as an “armed attack.”

2.2

The Right to Self-Defense in Cyberspace: Can Cyber-attacks be considered a ‘Use of Force’?

As key definitions and concepts related to the applicability of ‘the right to self-defense’ remain ambivalent in international humanitarian law applicable to kinetic operations, this ambivalence spills over, and arguably becomes more complex when traditional international humanitarian law is applied to the realm of cyberspace.

Should cyber-attacks count as a “use of force”, given their pre-dominantly non-kinetic nature?

Michael Schmitt argues that the phrase “or in any other manner inconsistent with the Purposes” in Article 2(4), allows for forces such as cyber operations that transcend physical territorial boundaries to be counted as ‘use of force.’ (Computer Network Attack and the Use of Force in International Law: Thoughts on a Normative Framework, 1999). This logic has applied to the consideration of chemical and biological warfare as legitimate ‘use of force’ despite their non-kinetic nature (Cyber Attacks and International Law on the Use of Force: Emerging Technologies, Ethics and International Affairs, 2019). Schmitt mentions that cyberattacks “span the spectrum of consequentiality” (Computer Network Attack and the Use of Force in International Law: Thoughts on a Normative Framework, 1999), or in other words, cyber-attacks can have consequences a range of effects such as the mere disruption of networks and communication, economic damages or the physical loss of life and property. What qualifies as a ‘use of force’ in cyberspace, wherein there may or may not be any discernable kinetic effects? (Computer Network Attack and the Use of Force in International Law: Thoughts on a Normative Framework, 1999) Schmitt argues that the measurement of cyber-attacks should be “consequencebased”15 (based on the gravity of physical consequences in kinetic terms) rather than “instrument-based” (based on the nature of the instrument of attack, whether kinetic or non-kinetic)16 The Tallinn Manual defines a cyber-attack as a “cyber operation…that is reasonably expected to cause injury or death to persons or destruction to objects.” (Schmitt, 2013) The “consequence-based” classification allows for traditional humanitarian law to fit the nature of cyber-attacks. Schmitt provided a

15 See

Schmitt. “consequence based: based on the effects of the attack” Schmitt. “instrument based: depends on the type of the coercive instrument – diplomatic, economic, or military – selected to attain the national objectives in question. The first two types of instruments might rise to the level of intervention, but they do not engage the normatively more flagrant act of using force.”

16 See

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“seven-factor” legal framework popularized as the “Schmitt Analysis” 17 (also used in the Tallinn Manual) to assess the classification of cyber-attacks as a ‘use of force.’

Critics of the ‘Schmitt Analysis’ such as John Barkham argue that under Schmitt’s criteria, low-level cyber-attacks (the most dominant forms of cyber-attacks)18 are excluded from the definition of ‘use of force’ as their magnitude, severity, directness and invasiveness are difficult to measure (Information Warfare and International Law on the Use of Force, 2001). Cyber-attacks “cannot be assessed readily at the time of the attack to determine their magnitude and permitted responses” (Information Warfare and International Law on the Use of Force, 2001), and therefore any ex-post analysis framework will be ineffective in dealing with cyber-attacks. According to Haataja “the threshold distinction between the non-use of force…highlights the law’s ontologically constrained view of violence.” (Cyber Attacks and International Law on the Use of Force: Emerging Technologies, Ethics and International Affairs, 2019) As a result, while the law is capable of regulating cyber-attacks with material effects, its capacity is limited – particularly in relation to cyber-attacks without material effects.” 19 While a majority of legal scholars support the ‘consequence-based’ framework from the Tallinn Manual, some State actors choose to enact the ‘instrument-based’ or ‘target-based’20 classification.

The Tallinn Manual accepts the validity of UN Charter and the “scale of effects” criteria used by the ICJ in cyberspace. 21 However, the Tallinn Manual experts acknowledge that the threshold of classifying a “use of force” as an “armed attack” is not specified in the Nicaragua Judgement (ICJ, 2003), thus extending the problems of the kinetic realm to the cyber realm. As the frequency of low-level cyberattacks with lack of immediate consequence has been much higher than the frequency of high-level cyber-attacks with immediately identifiable consequences, how can the conditions (threshold) for the applicability of the right-to-self in cyberspace be identified?

See Schmitt. The Schmitt Analysis includes seven factors: i) severity (level of destruction caused) ii) immediacy (speed at which hard is done) iii) directness (the clarity of direct consequences) iv) invasiveness (effect on state sovereignty) v) measurability (exact consequences and damage can be measured clearly) vi) presumptive legitimacy (defensive counter-attack) vii) responsibility (the problem of state attribution)” 18 See Tallinn Manual 1.0. Section 1, Rule 2.

19 According to Roscini, the ‘target approach’ is concerned primarily with the target of the cyber-attack in determining whether or not it would amount to a use of force. “A week-long cyber-attack that shuts down the national grid, and thus leaves millions of people without electricity, cripples the financial market and the transport system, and prevents government communications is likely to be treated as a use of force, whether or not physical damage ensues. (Cyber Operations and The Use of Force in International Law, 2014; Roscini, 2010)” 20 See Tallinn Manual 1.0, Section 2, Rule 13: A State that is the target of a cyber operation that rises to the level of an armed attack may exercise its inherent right of self-defense.

Whether a cyber operation constitutes and armed attack [or not] depends in its scale and effects.”

21 See Tallinn Manual 1.0, Section 2, Rule 13 (7) 17

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Low-Level Cyber-attacks and the “Accumulation of Events”

An important debate which emerged through the ICJ deliberation on the Oil Platforms Case around the applicability of UN Charter Article 51 in the case of damaging cumulative effects caused by multiple low-level attacks (less grave forms of the use of force) (ICJ, 1986), or the ‘accumulation of events’ doctrine. (Armed Attack, 2013). Notwithstanding incessant opposition to the doctrine by scholars and the UN Security Council, the ICJ still considered this argument as a possibility, which carries vast significance regardless of the final judgement of the Court which ruled against the applicability of the doctrine to that specific case (Armed Attack, 2013).

As pointed out previously, a majority of cyber-attacks over history have remained below the ‘threshold’ of use of force (if measured through the Schmitt Analysis criteria) as they did not present immediate damage or measurable effects (Information Warfare and International Law on the Use of Force, 2001) This could allow aggressors to “legally” conduct low-level cyber-attacks without facing the burden of consequences related to self-defense from the targeted state. Although the “accumulation of events” argument did not hold in the case of kinetic warfare, it could be relevant in the context of cyber operations. Tallinn Manual 2.0 affirms that the accumulation of the effects of low-level cyber-attacks over time can warrant self-defense, when attributed to the same source or different actors acting in concert (Schmitt, 2017). A number of states (most notably Iran and the United States) (Self-Defense and the Oil Platforms Decision, 2004) have invoked the “accumulation of events” doctrine with respect to the right to self-defense. However, scholars such as Roscini have argued that the doctrine is controversial because of the following reasons. First, each small attack must be a ‘use of force’ to be added in the cumulative. (Cyber Operations and The Use of Force in International Law, 2014).

Second, in comparison with the motives of guerilla warfare in the kinetic realm, the aim of low-level cyber-attacks are intended to conceal the extent of the total damage from the victim (Cyber Operations and The Use of Force in International Law, 2014). In such cases, the effect of the ‘accumulation of events’ may be difficult to discover due to the intent of the aggressor. Third, all low-level cyber-attacks that contributed to the “accumulation of events” must be attributed to the same aggressor (Cyber Operations and The Use of Force in International Law, 2014). The problem of attribution is further complicated in cyber-space due to a) the role of nonstate actors (State Responsibility for Cyber Attacks: Competing Standards for a Growing Problem, 2011) and b) due to the features of anonymity and imminence (speed of attack) unique to cyber-attacks, the technology to trace and attribute attacks to responsible States remains underdeveloped (Cyber Operations and The Use of Force in International Law, 2014).

Thus, we see that the pre-existing gaps in traditional international humanitarian law are amplified in cyberspace, into debates over the definition of “use of force”,

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“armed attack”, the underdeveloped remedies to deal with low-level uses of force, and the blurry threshold between “armed-attack” and “use of force.” Roscini argues that “customary international law could play a role in this area, as there is already some relevant state practice and opinio juris, in particular with regard to the right to self-defense against cyber-attacks” (Roscini, 2010). However, this process is ongoing, and often impeded due to the persisting ambiguity in the positions of States and international organizations.

The next section will demonstrate how State opinio juris can be a reliable indicator of a State’s position in the issues of a) how should the right to self-defense be approached in cyberspace, more generally (in terms of defining use of force, armed attack and whether b) should the “accumulation of events” doctrine hold in cyberspace, due to the higher incidence of low-level cyber-attacks as compared to highlevel attacks.

Opinio Juris As noted by the ICJ, in the Continental Shelf Case (Libya/Malta), customary law must be ‘looked for primarily in the actual practice and opinio juris of states.’ 22 (Shaw, 2008)Often, states as independent actors, do not restrict their behaviour to merely what is legally required (Shaw, 2008). Independent of a state’s behaviour, the second aspect of opinio juris is psychological (the legal terminology for this is opinio juris sive necessitates.” (Shaw, 2008). This is the belief by the state regarding what actions it deems legal. States are inanimate objects that do not exercise cognitive “belief”, so how is the psychology of a state determined in international law?

Opinio juris can be situated in official statements from the government, national security strategies, and other comments made by government officials.

Therefore, state opinio juris could be an ideal unit of analysis in the assessment of prevalent norms in cyberspace. According to Ann Väljataga from the NATO CCDCOE, “Strong opinio juris has been thought to be able to compensate for underdeveloped or incoherent state practice in the formation of public international law.”

(Tracing Opinio Juris In National Cyber Security Strategy Documents, 2018). She further mentions that although “Cyber opinio juris is a rare phenomenon since, for understandable reasons, states often shy away from strong verbal commitments and their consequences,” (Tracing Opinio Juris In National Cyber Security Strategy Documents, 2018) expressions of opinio juris can be identified within published national defense strategies, statements, and declarations from government officials. In the absence of binding law and sustained State practice, opinio juris is the next best alternative to look for the expression of the views of individual States.

22

See the Case Concerning the Continental Shelf (Libyan Arab Jamahiriya/Malta)” Judgement (Summary) (1985)

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Examples of State Opinio Juris on Jus Ad Bellum in Cyberspace

Harold Koh, Legal Advisor for the U.S. Department of State, made an official statement in 2012 (Harold, 2012), regarding the stance of the United States on crucial and previously unaddressed grey areas of international law in cyber space such as attribution, the problem of ‘dual-use systems’ and use of force in cyberspace. He affirmed that cyber-attacks can constitute a “use of force” through the “consequence-based” classification of cyber-attacks, while also acknowledging the role of the instrument and the target of the attacker.23 In the International Strategy for Cyberspace, published by the United States in 2011, the White House affirmed that: “when warranted, the United States will respond to hostile acts in cyberspace as we would to any other threat to our country.”

(Prosperity, Security and Openness In A Networked World - International Strategy for Cyberspace , 2011). The position of the United States that “the inherent right of self-defense potentially applies against any illegal use of force” (Harold, 2012) is in opposition to the Tallinn Manual approach, which makes a clear demarcation between attacks that can warrant self-defense versus less grave attacks. By extension, this definition also applies to the “accumulation of events” of low-level cyber-attacks. The U.S. Department of Defense Cyber Strategy said that the U.S. will “defend forward to disrupt or halt malicious cyber activity at its source, including activity that falls below the level of armed conflict.” (The United States of America , 2018) The United Kingdom is in agreement with the “consequencebased” approach of the Tallinn Manual, according to the remarks of Attorney General Jeremy Wright. 24 There is a mention of the existence of low-level cyber threats25, but the UK’s view on the accumulation of low-level threats is not specified. France joins the United Kingdom and the United States in supporting the “consequence-based” approach. However, France’s views of valid consequences range from “substantial loss of life” to “significant physical or economic damage.”

(Schmitt, 2019). In this regard, France exceeds the classification of the United Kingdom (Droit Internationale Applicé aux Opérations dans le Cyberspace), which See Harold Koh (2012): ““Cyber activities that proximately result in death, injury, or significant destruction would likely be viewed as a use of force. In assessing whether an event constituted a use of force in or through cyberspace, we must evaluate factors: including the context of the event, the actor perpetrating the action (recognizing challenging issues of attribution in cyberspace), the target and location, effects and intent, among other possible issues. (Harold, 2012)” 24 See the Government of UK, Attorney General Office Statement. “Thirdly, the UK considers it is clear that cyber operations that result in, or present an imminent threat of, death and destruction on an equivalent scale to an armed attack will give rise to an inherent right to take action in self- defence, as recognised in Article 51 of the UN Charter.”

25 See the Government of UK, Attorney General Office Statement. “In certain circumstances, cyber operations which do not meet the threshold of the use of force but are undertaken by one state against the territory of another state without that state’s consent will be considered a breach of international law” 23

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deals with only the “imminent threat of, death and destruction on an equivalent scale to an armed attack.” Additionally, France rejects the position of the United States that all uses of force are armed attacks and must warrant self-defense by reverting to the Nicaragua scale-and-effects standard affirmed by the Tallinn Manual (Schmitt, 2019). France also supports the “accumulation of events” approach in cases when the attacks can be attributed to the same actor, or different actors acting in concert (Schmitt, 2019).

Russia’s Ministry of Defense recognizes the right to self-defense in cyberspace under international law.26 However, Russia has provided no specification regarding the classification of “use of force” or the “accumulation of events. China in its Military Strategy White Paper states: “[w]e will not attack unless we are attacked, but we will surely counterattack if attacked.” (China’s Military Strategy, 2015) Russia and China have criticized the United States’ approach to self-defense for all levels of use of force.27 However, their position on what qualifies as force and the remedy for low-level cyber-attacks remains unclear.

3

Implications and Conclusion

An exhaustive study of the language used and claims made in all available sources of opinio juris of states within the international system will further illuminate the contrasting and in some cases, unclear positions of states on crucial issues such as the classification of cyber-attacks as ‘uses of force’ and the ‘accumulation of events’ doctrine. Further analysis could be helpful in determining the motivations behind the positions adopted by certain states. For example, the United States’ position on self-defense in cyberspace to encompass all uses of force could be linked to its history of being targeted by a high incidence of cyber-attacks related to election manipulation, intellectual property theft and economic damages from state and nonstate actors. 28 A State’s expression of opinio juris can be linked to its broader ideologies or strategic concerns. The results of an extensive case study might better reflect the lack of consensus between states, which can be indicative of the strong influence of great power politics on the formation of international law (Roberts, 2014). Identifying the opinio juris of states with regards to the right to self-defense (definition of “use of force” and the remedy for low-level cyber-attacks) in cyberspace can provide a step in the direction towards strengthening norm formation in 26 See

Russian Federation Armed Forces’ Information Space Activities Concept. Ministry of Defense of the Russian Federation. 2000. “The escalation of a conflict in the cyberspace and its turn into a crisis gives the right to an individual or collective self-defense and the use of any means necessary that do not contradict the universally accepted norms and the principles of international law.”

27 Refer to the International Code of Conduct for Information Security (Presented by Russia and China at the UNGA) (2011) 28 Significant Cyber Incidents. Centre for Strategic and International Studies.

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the grey areas of international law, and thereby contributing to possible consensus and confidence-building between states.

References 1. Armed Attack. Zemanek, K. 2013. s.l. : Oxford Public International Law, 2013.

2. Charter of the United Nations. United Nations. 1945. 1945. Article 2(4).

3. China’s Military Strategy. 2015. s.l. : The State Council Information Office of the People’s Republic of China, 2015.

4. Computer Network Attack and the Use of Force in International Law: Thoughts on a Normative Framework. Schmitt, M. 1999. s.l. : Columbia Journal of Transnational Law, 1999, Vol. 37.

5. Connell, M. Vogler, S. 2017. Russia's Approach to Cyber Warfare. The Telegraph.

[Online] 2017. [Cited: April 15, 2020.] https://www.cna.org/CNA_files/PDF/DOP-2016U-014231-1Rev.pdf.

6. Cyber Attacks and International Law on the Use of Force: Emerging Technologies, Ethics and International Affairs. Haataja, Samuli. 2019. s.l. : Routledge, 2019.

7. Cyber Operations and The Use of Force in International Law. Roscini, M. 2014. s.l. : Oxford, 2014.

8. Droit Internationale Applicé aux Opérations dans le Cyberspace. s.l. : République Française.

Ministère des Armées.

9. Grey Zones in the International Law of Cyberspace. Schmitt, M. 2017. s.l. : The Yale Journal of International Law Online, 2017.

10. Harold, Koh. 2012. International Law in Cyberspace. Opinio Juris. 2012.

11. ICJ. 1986. Nicaragua v. United States of America . s.l. : International Court of Justice, 1986.

12. —. 2003. Oil Platforms, Iran v United States. ICJ GL No 90, [2003] ICJ Rep 161, ICGJ 74 (ICJ 2003). s.l. : International Court of Justice ICJ, 2003.

13. Information Warfare and International Law on the Use of Force. Barkham, J. 2001. New York : NYU Journal of International Law and Politics, 2001. 57, 34. (2001).

14. Lété, B and Chase, P. 2018. Shaping Responsible State Behavior in Cyberspace. s.l. : The German Marshall Fund of The United States Workshop Briefing Paper, 2018.

15. Ottis. 2018. Analysis of the 2007 Cyber Attacks Against Estonia from the Information Warfare Perspective. Cooperative Cyber Defense Centre of Excellence. 2018.

16. Prosperity, Security and Openness In A Networked World - International Strategy for Cyberspace .

2011. s.l. : Obama White House Archives, 2011.

17. Roberts, A and Sivakumaran, S. 2014. The Theory and Reality of the Sources of International Law. International Law. Malcolm Evans, 2014.

18. Roscini, M. 2010. World-Wide Warfare – Jus Ad Bellum and The Use of Cyber Force.

Max Planck Yearbook of United Nations Law Online . 2010, 14 (1). (2010) pp. 85-130.

19. Schmitt, M. 2013. Tallinn Manual on the International Law Applicable to Cyber Warfare. Cambridge University Press. 2013, Vol. (2013) p. 16 of 215.

20. Schmitt, M. 2019. France’s Major Statement on International Law and Cyber: An Assessment. s.l. : Just Security, 2019.

21. —. 2017. Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations.

Cambridge University Press. 2nd, 2017.

22. Self-Defense and the Oil Platforms Decision. Taft, W. 2004. s.l. : The Yale Journal of International Law, 2004.

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23. Shaw, M. 2008. International Law. 6th, 2008, Chapter 3: Sources.

24. State Responsibility for Cyber Attacks: Competing Standards for a Growing Problem. R, Shackelford S and Andres. 2011. s.l. : Georgetown Journal of International Law , 2011.

42(4) 971.

25. The United States of America . 2018. s.l. : USA, Department of Defense Cyber Strategy (Summary), 2018.

26. Tracing Opinio Juris In National Cyber Security Strategy Documents. VaĚˆljataga, A. 2018. s.l. : NATO CCDCOE, 2018.

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6 Children in Conflict Zones: The Intersection of IHL and UNCRC Haniya Hasan Independent Research Scholar, Islamabad, 44000, Pakistan.

haniya.h.hasan@gmail.com

Abstract. The vulnerability of children and the need for their protection is not more manifestly apparent than in situations of violent armed conflict.

While the impact of armed conflict is especially dire on all civilians and civilian society, international humanitarian law recognizes the special protection owed to children in its provisions, granting them not just civilian immunity from attack but also protection from military recruitment and family separation, and the rights to education, play and mobility. The consensus on the special status of children is not limited to IHL. It has also prompted human rights law to develop a similar but broader range of children-specific rights. This overlap between the two right regimes is evident in current conflict zones of Syria, Yemen, Myanmar etc. The focus of this article is to review the protections available to children impacted by armed conflicts and to examine the intersection of international humanitarian law and children rights laws. Given that academic scholarship on the role of the Convention on the Rights of the Child in developing refugee law already exists, it is argued that IHL protections for the child can similarly be strengthened by using the Convention on the Rights of the Child provisions and enforcement mechanisms.

Keywords: International Humanitarian Law, UN Convention on the Rights of the Child, treaty interpretation, Committee on the Rights of the Child.

1

Introduction

Children are by their very biological and emotional nature, susceptible to much of the dangers in this world. Historically, children have been defenceless against economic exploitation, epidemics, physical and psychological abuse, and most pertinently in the context of this article, violent conflicts. The scale and magnitude of

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these threats to their well-being do not allow governments and States to relinquish the responsibility to protect children to domestic fixtures and parental obligations; especially not when States themselves have been some of the biggest perpetrators of children rights’ abuses. Necessary international cooperation to ensure globally consistent child-specific protection has resulted in a nebulous network of children rights deriving from international human rights law and international humanitarian law.

The interplay between the two bodies of law is intricately balanced. International humanitarian law (IHL) is the foremost body of law that aims to protect civilian populations and hors de combat combatants from armed conflict while the UN Convention on the Rights of the Child (UNCRC) is an authoritative and universally accepted human rights instrument which protects civil, economic, and social rights of the child. Together, both bodies of law have a wide protective ambit. Both endeavour to protect children from the effects of armed conflict. The UNCRC remains unique, however, in that it is the only human rights treaty that links its implementation with international humanitarian law. The argument in this article is, therefore, articulated on the basis of the interplay between the UNCRC and IHL and whether the former can feasibly be instrumental in supplementing the latter.

In section 2, the general rules of the application of international human rights and international humanitarian law during armed conflict have been discussed. In section 3, treaty law has been discussed in relation to whether provisions in international treaties can be supplemented/modified by cross-referencing to related provisions in other bodies of international law. In section 4, the protections granted by the UNCRC and international humanitarian law have been examined. Lastly, in 5, the role of the UNCRC has been discussed in developing international humanitarian law, and whether the converse is plausible.

2

UNCRC and IHL: Concurrent or Asynchronous?

The application of international humanitarian law and international human rights law in situations of armed conflict is the object of many debates in international law, for example, Orakhelashvili (The Interaction between Human Rights and Humanitarian Law: Fragmentation, Conflict, Parallelism, or Convergence?, 2008).

Generally, there is at least some consensus found that these two rights regimes are parallel in their application within wartime and peacetime (The Interaction between Human Rights and Humanitarian Law: Fragmentation, Conflict, Parallelism, or Convergence?, 2008). The International Court of Justice has confirmed this in the cases of the Construction of the Wall in the Occupied Palestinian Territory (ICJ, 2004) and DRC v. Uganda (ICJ, 2005). Moreover, the International Criminal Tribunal for the Formal Yugoslavia (ICTY) has decided that the two bodies of law are correspond ‘in terms of their goals, values, and terminology’

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(International Criminal Tribunal, 2001). It also went on to specify in the same judgement that the ‘notions developed in the field of human rights can be transposed in international humanitarian law only if they take into consideration the specificities of the latter body of law.’ (International Criminal Tribunal). This requirement of considering the ‘specificities’ of IHL begs further analysis.

The application of both bodies of law extraterritorially to situations of conflict has been questioned most recently in the context of counter-terror operations conducted by the United States in other states by Hathaway and others (Hathaway, 2012). The extra-territorial element of the following analysis is necessary to objectively ascertain state duties regarding both bodies of law and not be hampered by national law and conventions.

Hathaway et. al. (2012) identifies three possible theoretical approaches to the relationship between IHL and IHRL in armed conflict situations (Hathaway, 2012): 1) IHL displaces IHRL in armed conflict situations and vice versa in peacetime as lex specialis (Hathaway, 2012); 2) both bodies of law apply and are interpreted concurrently in armed conflicts; and, 3) they are applied together when both IHL and IHRL provisions are complementary to each other; otherwise they are applied according to the facts of the situation.

The latter most theoretical approach is supported by Hathaway et. al. and indeed by other academics (for example, (Droege, 2007), (Practical Challenges of Implementing the Complementarity between International Humanitarian and Human Rights Law - Demonstrated by the Procedural Regulation of Internment in Non-International Armed Conflict, 2009) because an asynchronous approach like displacement is abrogative of the common goal between the two bodies of law: ‘to effectively protect fundamental human dignity’ (Hathaway, 2012) while the concurrent approach is too complex to implement in practice (Hathaway, 2012).

Hathaway et. al’s conclusion also is in concurrence with the jurisprudence and practice surrounding the debate of complementarity between the two rights regimes. IHL and IHRL mutually reinforce each other wherever the rules of either regimes are compatible and complementary. This is evident in the case of the prohibition on torture. As explains, the prohibition in torture is common between IHL and IHRL; under the UNCAT definition of torture, it is an act committed through the actions or omissions of officials working for a State (Droege, 2007). However, under IHL, torture can also be committed by non-state groups. Under Hathaway et. al.’s preferred approach, the difference in the scope of the prohibition is not an indicator of conflict; rather it allows for the UNCAT definition to be modified to fit the ‘humanitarian law rationale’ in conflict situations. This ‘cross-fertilization’ is a mark of the harmony between the two regimes that can be attained when complementary provisions are interpreted side-by-side.

This conclusion has been endorsed by the European Court of Human Rights in the case of Hassan v. the United Kingdom where the Court reviewed the relationship between the European Convention of Human Rights (European Convention

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for the Protection of Human Rights and Fun-damental Freedoms, 1950) and international humanitarian law. It held that the European Convention must be interpreted against the ‘background of the provisions of international humanitarian law’ (European Court of Human Rights, 2014). The ‘co-existence’ of both regimes requires that provisions of international humanitarian law be accommodated within the interpretation of Convention rights and safeguards (European Court of Human Rights, 2014).

Nevertheless, conflicts between the two regimes do exist. Most obvious being the right to life. In IHRL, this is a non-derogable absolute right while in IHL, the right to life is limited to civilians not directly participating in hostilities subject to proportionality (Droege, 2007). In the event of such a conflict, legal rules applying are ‘the most appropriate and most closely tailored to the circumstances of the case, giving maximum effect to each body of law in situations in which they are most specific and relevant.’ (Hathaway, 2012).

In effect, this reduces the lex specialis status from applying to the entirety of international humanitarian law to specific provisions like for example, the right to use lethal force against combatants and civilians directly participating in hostilities. This approach is also supported by the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, (OPAC) , 2010) in Article 5, ‘Nothing in the present Protocol shall be construed as precluding provisions in the law of a State party or in international instruments or international humanitarian law that are more conducive to the realization of rights of the child.’.

This provision (which is echoed Article 41 of the UNCRC) implies that the Optional Protocol’s protections apply as long as they do not preclude more ‘conducive’ rights either in international human rights or humanitarian law. This is a clear indication of the degree of interplay between both regimes regarding children rights in armed conflicts.

This, therefore, sets the scene for the rest of the present article. The UNCRC and IHL apply concurrently as long as they are not in conflict; where there is conflict, the most specific right applies which may have to be provided by either international humanitarian law or IHRL.

3

Accordance with treaty law

Interpretation of international treaties like the UNCRC and the Geneva Conventions is fraught with the danger of obscuring the original objectives of the treaties in question. To this end, the Vienna Convention on the Law of Treaties (Vienna

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Convention on the Law of Treaties, 1969) (VCLT, 23 May 1969, UNTS 1155) outlines the standards for the interpretation of treaties. The VCLT has also acquired status as customary international law, according to the International Court of Justice (ICJ, 1994). A brief discussion of treaty interpretation is needed to underscore the reliance of this article on the interpretation of certain IHL provisions in the light of the UNCRC. Article 31 of the Vienna Convention of the Law of Treaties provides a general rule of treaty interpretation; a treaty is to be interpreted in ‘good faith in accordance with the ordinary meanings to be given to the terms of the treaty in their context and in the light of its object and purpose’. Article 31 (3) (c) allows interpretation to take into account ‘any relevant rules of international law applicable in the relations between parties’. According to Pobjoy (Pobjoy, 2017), Article 31 (3) (c) is the key to the principle of systemic integration i.e. international treaties are interpreted by ‘reference to their normative environment (“system”)’ (Jason, 2017).

The ‘relevancy’ of the UNCRC and IHL to each other is not difficult to establish.

While the intersection of international humanitarian law and international human rights law may seem to complicate cross-reference between the two rights regimes, the UNCRC clearly sets a benchmark for children rights not just in peacetime, but crucially in situations of conflict, persecution, and statelessness. It is entirely plausible, thus, to refer to the UNCRC, OPAC, and the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography (Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, (OPAC) , 2010) (8 March 2010, CRC/C/OPSC/BEL/Q/1), when interpreting rights of children under international humanitarian law.

Moreover, the UNCRC also evinces an intention that rights of the child are interpreted as broadly as possible; partly because of the Committee on the Rights of the Child’s holistic approach towards the implementation and realization of the UNCRC rights29, and partly because of Article 41 which upholds state law or international law which ‘is more conducive to the realization’ of children rights than the UNCRC. In particular, the UNCRC is the only international treaty that specifically mentions State Parties’ obligations under IHL towards children in Article 38.

The International Law Commission in its guidance has interpreted the phrase ‘in relations between parties’ in Article 31 (1) (c) as requiring the interpreter to consider other treaty-based rules hailing from other treaties the State parties in question are party to, or rules that have become/are customary international law (Pobjoy, 2017). Nevertheless, this phrase begets no serious complication so as to abandon the line of argument this article takes completely; the UNCRC is almost unanimously ratified while many child-specific provisions of the Geneva Conventions and its Additional Protocols are customary international humanitarian law (ICRC).

29

See below for an elaborated discussion of the role of the Committee on the Rights of the Child.

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The exception to the unanimous ratification of the UNCRC is the United States which has signed but not yet ratified the Convention. This, however, poses no barrier to using the UNCRC as a tool for strengthening IHL provisions as under the VCLT, states are ‘obliged to refrain from acts which would defeat the object and purpose of a treaty’ when they have signed it (Vienna Convention on the Law of Treaties, 1969). As the ultimate objective of intersecting the UNCRC and the IHL is to give greater respect to the common objective of preserving human dignity in both instruments, not accepting the application of UNCRC in concurrence with IHL would be damaging to the objectives of IHL as well as the UNCRC. With regard to Article 38, not accepting the concurrent interpretation of IHL and UNCRC would be resisting the implementation of the UNCRC as a whole as well.

4

Existing Protections in IHL and UNCRC

As already established, the UNCRC is an authoritative guide to the fundamental rights and protections a child possesses by virtue of its age. The majority of the UNCRC lays out civil, economic and social rights of the child, including protection from sexual or economic exploitation, rights to family life, and health facilities.

With regard to protecting against armed conflicts, Article 38 of the UNCRC explicitly mandates states to ‘respect and ensure respect’ for international humanitarian law. Article 38 (2) obliges states to ‘take all feasible measures’ to protect children under 15 from military recruitment/use. OPAC also provides protections for prevention of children involvement, extending that of UNCRC’s Article 38 as well as of Article 77 in the Additional Protocol I and Article 4 in the Additional Protocol II to the Geneva Conventions.

International humanitarian law provides extensive protection to children in both international armed conflicts and non-international armed conflicts. While children benefit from the general protection accorded to civilians not participating in hostilities and personnel who are hors de combat, (Vite, 2011) they are also granted special protection by the Geneva Conventions of 12 August 1949 and its Additional Protocols. Additional Protocol I (AP I) which is applicable to international armed conflicts, lays down the principle that ‘children shall be the object of special respect and shall be protected against any form of indecent assault. The Parties to the conflict shall provide them with the care and the aid they require, whether because of their age or for any other reason.’ (Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts (API), 1977).

This is echoed to some extent for non-international armed conflicts in Additional Protocol II (AP II) in Article 4 as ‘special protection’. The principle of special respect and protection has also been given customary international humanitarian law status further cementing the non-negotiable nature of children protections (ICRC) (Rule 135, ICRC Customary IHL Database).

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According to the International Committee of the Red Cross’s Advisory Service on International Humanitarian Law (Advisory Service on International Humanitarian Law, Guiding Principles for the Domestic Implementation of a Comprehensive System of Protection for Children Asso-ciated with Armed Forces or Armed Groups (2011), 2011) and the Customary International Humanitarian Law database, the special protection for children consists of evacuation and creation of neutralized zones, provision of food and medicine, identification, family reunification, ensuring education and cultural environment, exemption from the death penalty, protection against sexual violence, prohibition of military recruitment, and favourable conditions when interned, detained, or arrested.

5

UNCRC’s role in developing IHL, and vice versa: Plausible or Implausible?

The UNCRC plays a significant role in ensuring children rights not just singularly by itself but also through other specialized bodies of law that aim to protect the most vulnerable of people i.e. refugee law, and international humanitarian law. The Committee on the Rights of the Child, the oversight body ensuring compliance of the UNCRC by State parties, has established an integrated approach that encourages states to interpret child-relevant provisions in other international legal instruments in accordance with the UNCRC, while also encouraging States to ratify other human rights treaties to solidify the protections available to children (The Role of the Committee on the Rights of the Child in Interpreting and Developing International Humanitarian Law).

Due to its wide protective ambit and unique status as an authoritative source of children rights, it is definitely not implausible that the UNCRC can contribute to strengthening international humanitarian law, especially where IHL is ambiguous or has a gap in its protections.

The following subsections offer a non-exhaustive glimpse into the potential ways the UNCRC can supplement and is supplementing international humanitarian law through substantive clarification of existing IHL provisions and influencing state practice regarding IHL though the Committee on the Rights of the Child (CRC)’s jurisprudence.

5.1

Clarifying the definition of a child in IHL

Curiously, while an implied definition of a child can be reasoned through the age-limits prescribed in some provisions, there is no explicit definition of a child in IHL. Two age-limits of 15 years and 18 years are used by certain provisions to denote eligible children. In Articles 14, 23, 24, 38, 50, and 89 of the Fourth Geneva Convention relative to the Protection of Civilian Persons in the Time of War (GC IV), children under 15 are specified. Even younger children are also referred to in the GC IV.

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In 24 (3), parties to the conflict are obligated to visibly identify children under the age of 12. In Article 38 (5), alien mothers of children under the age of 7 are also eligible for any preferential treatment accorded to nationals of the state.

In the Additional Protocols, Article 77 of AP I obliges States to take ‘all feasible measures’ to disallow recruitment and direct participation of children under 15 in the hostilities. Recruitment from amongst 15 – 18-year olds must prioritize recruitment of the eldest. On the other hand, Article 4 (3) (c) of AP II does not ‘allow’ direct participation and recruitment of children under 15.

The language differs from facilitative to outright prohibition respectively in Additional Protocol I and Additional Protocol II which alters the expectations such provisions demand of State parties. Uniform consensus on the appropriate age for recruitment into the military and direct participation is, therefore, needed to 1) replace the arbitrary nature of the 15-year age threshold30, and 2) ensure that the ambiguity in age requirements is not exploited by for example, recruiting adolescents below the age of 18 to perform espionage and sexual services which does not fall into military recruitment nor ‘direct participation in hostilities’ (Melzer, 2010).

The UNCRC defines a child in Article 1 as ‘every human being below the age of 18-years unless, under the law applicable to the child, majority is gained earlier.’

This definition has been replicated in various international, regional, and national legal instruments to gain a worldwide cachet in determining who is a child (Vite, 2011). Yet in Article 38 (3), the UNCRC echoes Article 77 of AP 1 regarding recruitment and direct participation. However, in Article 38 (1), it provides that states respect international humanitarian law regarding ‘the child’ which is defined in Article 1 of the Convention. The resulting ambiguity of Article 38 has resulted in efforts made by the Optional Protocol to the UNCRC on the Involvement of Children in Armed Conflict (OPAC) to raise the minimum age of recruitment and participation to reflect the Article 1 definition (Article 1, 2010) OPAC particularly refers in its preamble to the 1995 recommendations of the International Conference of the Red Cross and the Red Crescent to raise the minimum age to 18. It also acknowledges the Statute of the International Criminal Court which makes it a war crime to recruit children under the age of 15; the Optional Protocol, nonetheless, considers the raising of the minimum age as strengthening the implementation of the UNCRC and its principle of ‘best interests of the child’ (Preamble, 2010).

The Committee on the Rights of the Child has also in its Concluding Observations stressed the adoption of 18 as the minimum age for all forms of military participation and recruitment. It has made use of the African Charter on the Rights and Welfare of the Child to demand that states apply the minimum age of 18 (The 30

There is no scientific evidence that the age of 15 is not an arbitrary cut-off limit for military recruitment. In fact, the upper age limit of 18 is supported by many national constitutions/military manuals as well as international bilateral and multilateral agreements/declarations. See Sylvain Vite, Protecting Children during Armed Conflict: International Humanitarian Law, 5 Hum. Rts. & Int'l Legal Discourse 14 (2011).

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Role of the Committee on the Rights of the Child in Interpreting and Developing International Humanitarian Law, 2011).

According to Wiessbrodt and others’ analysis of the role of the Committee in developing IHL, that while the Committee does not have the technical capacity to intentionally expand IHL provisions, it can through its implicit interpretation through Article 38 influence state practice regarding interpretation of the definition of a child (The Role of the Committee on the Rights of the Child in Interpreting and Developing International Humanitarian Law, 2011). State practice regarding certain norms, if sufficiently aggregate enough can form customary international humanitarian law. Therefore, the role of the UNCRC cannot be underestimated where areas of substantive provisions overlap between it and IHL; with its worldwide approval and its implementation mechanisms, it has the ability to proactively influence State parties regarding contentious or ambiguous children protections.

5.2

Bridging the gap between the two Additional Protocols

International humanitarian law recognizes two conflict situations as armed conflicts for the purposes of the Geneva Conventions; international armed conflict which is broadly covered by all the Geneva Conventions and AP I, and non-international conflict which is governed by Common Article 3 and AP II. The significantly broader and more detailed focus on international armed conflict reflects the nature of major conflicts in the period the conventions were drafted. Consequently, many protections relating to children affected by international armed conflicts are more extensive. In present day, however, non-international armed conflicts are becoming the most widely seen type of conflict due to the rise of terrorism and armed non-state groups. This elevates the importance of protections offered by Common Article 3 and AP II to children.

Keeping within the context of rights already discussed such as the special protection principle and military recruitment, the provisions of AP II are different from their counterparts in AP I. For example, while Article 77 of AP I makes children the object of special respect and offers them ‘protection from any form of indecent assault’, its counterpart, Article 4 in AP II does not refer to indecent assault.

An argument can be made that general fundamental protections offered to children as civilians cover indecent assault, but the question remains of the equivalence with the mention of indecent assault in conjunction with the ‘special respect’ principle in AP I. This can lead to an assumption that the special respect principle in AP II is watered-down version, granting a lesser level of minimum protections.

As that is not the case and should not be the case in the context of sexual assault on children, Article 34 of the UNCRC can be used to benchmark the minimum protection against sexual assault and abuse, regardless of the type of conflict. Article 34 instructs states to take ‘all appropriate national, bilateral, and multilateral measures to prevent’ sexual coercion and exploitation of children.

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The plight of children outside the scope of the Geneva Convention

The Geneva Conventions recognize and thus apply to only two types of conflicts.

It does not apply to lesser forms of collective violence such as riots, civil unrest, terrorism, and sporadic incidents of violence (Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts (API), 1977). However, the dangers pertinent to children do not differentiate between the type of armed conflict happening around the child. Thus, protective measures must also protect children from the effects of hostilities that do not pass the threshold of international or a non-international conflict.

The UNCRC obviously goes a long way to do so. It is a human rights instrument of fundamental importance. It is applicable in peacetime, during armed conflict, and ‘during other situations of violence’, according to the ICRC Guidelines on International Rules Governing Military Operations (Handbook on International Rules Governing Military Operations) The Committee also does not differentiate between the different armed conflicts when discussing Article 38. The seemingly ‘nonchalant’ attitude to the traditional divisions of armed conflict is reactive to the modern realities of armed conflict and the overwhelming need to guarantee minimum humanitarian protection regardless of the nature of the conflict (The Role of the Committee on the Rights of the Child in Interpreting and Developing International Humanitarian Law, 2011).

The inclusion of UNCRC jurisprudence into state practice can break down the formalistic division of protection between the two types of conflicts. For children, effects emanating from either type of conflict are devastating. Therefore, the UNCRC is a welcome recourse in case of children outside the ambit of the Geneva Conventions.

5.4

The lack of an IHL oversight body

The absence of an oversight committee for IHL also plays a role in the interplay between IHL and IHRL. While the ICRC is a ‘custodian’ of IHL in that it aids its implementation by states, it does not have the capacity to ensure compliance (Institutional Approach between Ihl and Ihrl: Current Trends in the Jurispru-dence of the Inter-American Court of Human Rights, 2014). It cannot for example, listen to petitions/complaints nor can it ask for state reports on IHL implementation. The lack of an oversight committee, therefore, weakens the efficacy of its provisions.

The UNCRC, on the other hand, like other human right instruments has a corresponding oversight body, the Committee on the Rights of the Child, constituted

by Article 43 of the UNCRC. It is made up of ten experts elected from state parties who have the requisite knowledge and a high moral standing (Article 43). Under Article 44, states undertake to submit a report on the status of the UNCRC rights

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within two years of the entry of force of the Convention and thereafter every five years for review by the Committee.

The gap left by the lack of an oversight body has been narrowed considerably by the enhanced institutional ties that it has forced. The Committee on the Rights of the Child (CRC) has frequently used humanitarian standards and IHL to expand upon human rights protections available to children. This, however, does not mean that the Committee involves in deliberating on the IHL interpretation and related issues themselves. The Committee derives its ability to use humanitarian standards through Article 38 of the UNCRC which obligates states to respect IHL. The Committee therefore has ‘unique…potential’ to interpret humanitarian law in accordance with established children rights law to supplement and strengthen IHL protections for children during armed conflicts (The Role of the Committee on the Rights of the Child in Interpreting and Developing International Humanitarian Law).

Through its General Comments, Concluding Observations in response to state reports on UNCRC and/or OPAC implementation, and its recommendations, the CRC has proved that its normative approach is to holistically consider all human rights that can concern children. It can frequently direct states to interpret other international human rights instruments like the Convention relating to the Status of Refugees (UN General Assembly, Convention Relating to the Status of Refugees, 1951) or the Convention on the Elimination of All Forms of Racial Discrimination (UN General Assembly International Convention on the Elimination of All Forms of Ra-cial Discrimination, 1965) with respect to their applicability to the UNCRC. In many cases, it also suggests that states ratify certain human rights instruments that ensure the protections guaranteed in the UNCRC, for example, in General Comment 6, the Committee noted that non-refoulment obligations in the Refugee Convention were complementary to the ‘best interests’ principle of the UNCRC (UN Committee on the Rights of the Child, General Comment 6, ‘Treatment of unaccom-panied and separated children outside their country of origin, 2005).

On rare occasions, it can engage in substantive analysis on IHL provisions. For example, in General Comment 6, the CRC reformulated treatment of child soldiers by suggesting that child soldiers may be interned in compliance with IHL if they are a security threat (UN Committee on the Rights of the Child, General Comment 6, ‘Treatment of unaccom-panied and separated children outside their country of origin, 2005). Similarly, in General Comment 1, the Committee expanded the right to education as ‘even more important for those living in situations of conflict or emergency’ (UN Committee on the Rights of the Child, General Comment 1, ‘Article 29 (1): The aims of education’, 2001).

In fact, the holistic approach of the Committee has resulted in a broader level of protections for children affected by armed conflict as the Committee does not differentiate between different types of conflicts and thus, the differing levels of protections afforded in either type by IHL are strengthened by the Committee’s efforts to set uniform benchmarks in state practice.

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Influencing state practice by implicitly (and explicitly, in some cases) enhancing their obligations under IHL through its communications, the CRC might have a significant role in developing customary international humanitarian law.

There is potential, especially through its communications in response to OPAC reports that the minimum age for military recruitment might reflect the straight-18 approach taken in OPAC. The third Optional Protocol allows children to submit individual petitions to the Committee (UN Human Rights Council, Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure : resolution / adopted by the Human Rights Council, 2011), which is a substantive enhancement of the Committee’s capacity to ensure compliance.

Within context of IHL, this offers a unique opportunity to develop fact-specific jurisprudence regarding the interpretation and implementation of IHL. As previously mentioned, explicitly enhancing the protections offered to children under armed conflict against sexual abuse or the rights to education or psychological aid, the Committee can actively change the landscape of protections shielding children from the effects of armed conflicts in the coming years.

6

Conclusion

The underlying theme of this article has been to acknowledge the intricate intersection between international humanitarian law and the UN Convention on the Rights of the Child to protect children from the effects of armed conflict. The UNCRC, OPAC and indeed the Committee play a significant role in resolving some of the ambiguities and omissions that are present in the mechanisms and substance of international humanitarian law regarding the protection of children in armed conflicts. The manifest relationship between the two rights regimes gives support to the argument that the UN Convention can be plausibly used to strengthen and/or otherwise supplement the protections granted by the Geneva Conventions and its Additional Protocols. Potentially, the network of integrated human rights and IHL created by the holistic approach taken by the Committee can gain further traction with other human rights conventions and result in a more visible and tangible interaction between IHL and IHRL.

References 1. Advisory Service on International Humanitarian Law, Guiding Principles for the Domestic Implementation of a Comprehensive System of Protection for Children Associated with Armed Forces or Armed Groups (2011). ICRC. 2011. 2011.

2. Article 1. OPAC. 2010. 2010.

3. Article 43. UNCRC. 4. Droege, C. 2007. The interplay between international humanitarian law and international human rights law in situations of armed conflict. Israel Law Review . 2007, 40(2) Page 342 (2007).

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5. —. 2007. The interplay between international humanitarian law and international human rights law in situations of armed conflict. Israel Law Review . 2007, 40(2) Page 344 (2007).

6. —. 2007. The interplay between international humanitarian law and international human rights law in situations of armed conflict. Israel Law Review. 2007, 40(2) 310-355 (2007).

7. European Convention for the Protection of Human Rights and Fun-damental Freedoms.

Council of Europe. 1950. 1950. Protocols Nos. 11 and 14, 4 November 1950, ETS 5..

8. European Court of Human Rights. 2014. Hassan v. the United Kingdom. Application no. 29750/09, para. 102, 16 September 2014 . s.l. : European Court of Human Rights, Grand Chamber, Judgment, Strasbourg, 2014.

9. —. 2014. Hassan v. the United Kingdom. Application no. 29750/09, 16 September 2014, para. 104. s.l. : European Court of Human Rights, Grand Chamber, Judgment, Strasbourg, 2014.

10. Handbook on International Rules Governing Military Operations. ICRC. s.l. : International Committee of the Red Cross, Geneva (2012), pg., 46.

11. Hathaway, O., Crootof, R., Levitz, P., and others. 2012. Which Law Governs during Armed Conflict? The Relationship between International Humanitarian Law and Human Rights Law. Minnesota Law Review. 2012, 96(6), Page 1886 (2012).

12. —. 2012. Which Law Governs during Armed Conflict? The Relationship between International Humanitarian Law and Human Rights Law. Minnesota Law Review.

2012, 96(6), Page 1895 (2012). .

13. —. 2012. Which Law Governs during Armed Conflict? The Relationship between International Humanitarian Law and Human Rights Law. Minnesota Law Review .

2012, 96(6), Page 1887 (2012).

14. —. 2012. Which Law Governs during Armed Conflict? The Relationship between International Humanitarian Law and Human Rights Law. Minnesota Law Review.

2012, 96(6), Page 1901 - 1902 (2012).

15. —. 2012. Which Law Governs during Armed Conflict? The Relationship between International Humanitarian Law and Human Rights Law. Minnesota Law Review.

2012, 96(6), Page 1916 (2012).

16. Hathaway, O., Crootof, R., Levitz, P., and others:. 2012. Which Law Governs during Armed Conflict? The Relationship between International Humanitarian Law and Human Rights Law. Minnesota Law Review . 2012, 96(6), 1883-1943 (2012).

17. ICJ. 2005. Case Concerning the Armed Activities on the Territory of the Congo (Democratic Re-public of the Congo v. Uganda). ICJ Rep 168, para. 216.. s.l. : International Court of Justice, 2005.

18. —. 2004. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion. General List No. 131 [2004] ICJ Rep 136, para. 106. s.l. : International Court of Justice, 2004.

19. —. 1994. Territorial Dispute Libyan Arab Jamahiriya/Chad Judgement. [1994] ICJ Rep 6, para- 21, s.l. : International Court of Justice, 1994.

20. ICRC. Customary IHL Database, Rule 135.

21. Institutional Approach between Ihl and Ihrl: Current Trends in the Jurispru-dence of the Inter-American Court of Human Rights. Salmon, E. 2014. s.l. : Journal of International Humani-tarian Legal Studies , 2014. 5(1) 152-185 (2014).

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22. International Criminal Tribunal. 2001. Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic (Trial Judg-ment). 22 February 2001, IT-96-23-T, para. 467. s.l. : International Criminal Tribunal for the former Yugoslavia (ICTY), 2001.

23. —. Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic (Trial Judgment). 22 February 2001, IT-96-23-T, para. 471. s.l. : International Criminal Tribunal for the former Yugoslavia (ICTY).

24. Jason, Pobjoy. 2017. The Child in Refugee Law. Cambridge (2017). 2017.

25. Melzer, N. 2010. Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law. 2010.

26. Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, (OPAC) . UNCRC. 2010. 2010. CRC/C/OPAC/SDN/Q/1, 8 July 2010.

27. Pobjoy, Jason. 2017. The Child in Refugee Law. Cambridge (2017). 2017.

28. Practical Challenges of Implementing the Complementarity between International Humanitarian and Human Rights Law - Demonstrated by the Procedural Regulation of Internment in Non-International Armed Conflict. Olson, L M. 2009. s.l. : Western Reserve Journal of International Law, 2009. Case W. Res. J. Int'l L 40(3) 437 (2009). .

29. Preamble. OPAC. 2010. 2010.

30. Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts (API). ICRC . 1977. 1977. 8 June 1977, 1125 UNTS 3.

31. The Interaction between Human Rights and Humanitarian Law: Fragmentation, Conflict, Parallelism, or Convergence? Orakhelashvili. 2008. s.l. : European Journal of International Law, 2008. 19 (1) Page 163.

32. —. Orakhelashvili, A. 2008. s.l. : European Journal of International Law, 2008. 19 (1), 161-182 (2008).

33. The Role of the Committee on the Rights of the Child in Interpreting and Developing International Humanitarian Law. Weissbrodt, D., Hansen, J C., Nesbitt, N H. s.l. : Harvard Human Rights Journal . 24 (1) (2011).

34. —. Weissbrodt, D., Hansen, J C., Nesbitt, N H. 2011. s.l. : Harvard Human Rights Journal , 2011. 24 (1) (2011) Page 139.

35. —. Weissbrodt, D., Hansen, J C., Nesbitt, N H. 2011. s.l. : Harvard Human Rights Journal, 2011. 24 (1) (2011) Page 138.

36. UN Committee on the Rights of the Child, General Comment 1, ‘Article 29 (1): The aims of education’. United Nations. 2001. 2001. (2001) CRC/GC/2001/1, para. 16.

37. UN Committee on the Rights of the Child, General Comment 6, ‘Treatment of unaccompanied and separated children outside their country of origin. United Nations . 2005.

2005. (2005) CRC/GC/2005/6.

38. UN General Assembly International Convention on the Elimination of All Forms of Racial Discrimination. United Nations General Assembly . 1965. 1965. 21 December 1965, UNTS 660.

39. UN General Assembly, Convention Relating to the Status of Refugees. United Nations General Assembly . 1951. 1951. 28 July 1951, UNTS 189.

40. UN Human Rights Council, Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure : resolution / adopted by the Human Rights Council. United Nations. 2011. 2011. 14 July 2011, A/HRC/RES/17/18.

41. Vienna Convention on the Law of Treaties. 1969. 1969. 23 May 1969 UNTS 1155.

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42. Vite, S. 2011. Protecting Children during Armed Conflict: International Humanitarian Law. Hum. Rts. & Int'l Legal Discourse . 2011, 5 (14) (2011).

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7 Weaponization Of Outer Space Through The UN’s Looking Glass Deeksha Prakash, Srijita Goswami Symbiosis Law School, Hyderabad, India

deeksha.prakash@student.slsh.edu.in

Abstract. The realm of outer space has evolved as a subject of great importance through the decades. While outer space is regarded as a common asset for mankind, certain activities of nations can pose a threat to the harmony prevalent through it. With science and technology crossing new limits every day, the boundaries of their application are stretched. To ensure that this residual power is not utilized to foster animosity or create a volatile situation in outer space, it is imperative to introduce necessary measures to prevent its weaponization. This paper traces the militarization of outer space from a historical perspective. It delves into the period of the Cold War and how it created a growing nexus between the use of space objects and their militaristic applications. The rationale behind using outer space as a platform for showing militaristic strength and advancement has been one of establishing sovereignty, though not directly. Thus, the paper moves on to address that the intention behind weaponizing outer space is to establish sovereignty and assert dominance over nations. With the existence of nuclear weapons, the idea of the power of protection of a sovereign nation undergoes a drastic shift. The power that space weapons are aimed to heighten is consequently diminished by the use of such weaponry, as it moves beyond the control of sovereigns. The threat that is posed to humanity as a consequence of this struggle for power between nations, has been highlighted. After establishing the growing need to implement effective restrictions to prevent the use of outer space, the current scenario with regards to existing legal mechanisms has been explored with special reference to the stand of the United Nations. The major treaties and legal principles adopted by the United Nations have been analyzed. The Outer Space Treaty, 1967 has been studied to bring forth its strengths and shortcomings as a landmark in international space law. The “Prevention of an Arms Race in Outer Space” initiative undertaken by the United Nations has been trailed in detail to understand the stand of various nations on the issue of de-weaponization. It has been noted that while the reality of the threat of weaponization has been acknowledged by most nations, there is a lack of concrete laws to prevent it.

The urgency of the need to restrict the use of weapons in outer space has been stressed upon with reference to recent events. To ensure security in

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outer space, it is essential to build transparent mechanisms for the launch and use of space objects. To best protect the interest of nations around the globe, the legally binding legislations have to be enacted after negotiations on a multilateral platform, as has been emphasized in this paper. Delay in the implementation of promises of various nations, in the form of watertight legal mechanisms, will ultimately prove to be catastrophic in the global context. Thus, the paper aims at providing a holistic view of the weaponization of outer space, through the United Nations perspective and suggests means of its prevention. It can be inferred from the paper, that only a spirit of cooperation and determination to prioritize global safety can effectively secure such a goal.

Keywords: Outer Space Studies. Disarmament. United Nations. Space Politics. Sovereignty.

1

Cold War: The Budding Nexus Between Outer Space and the Military

The first traces of correlation between outer space and the military can be closely attributed to the Cold War, that is, the power-hungry battle for dominance and national security between the United States (“US”) and the Soviet Union (“USSR”).

In 1945, Moscow and the West named the failure to stop the accumulation of nuclear weapons as a “clandestine weapon problem” and, as a result, in 1955, both nations agreed to the peaceful use of outer space (Clemens, 1966). However, the echoed sentiment comprised the US nuclear disarmament as a precondition for the USSR’s cooperation. This insecurity of the Soviet Union was caused by US dominance in nuclear and hydrogen weapons, the bases of which were established in the continental US, United Kingdom (“UK”), Western Europe, the Middle East and the far East (Ezell, 2007) Lacking similar advancements in national security, the USSR relied on outer space for its security through Intercontinental Ballistic Missiles (ICBM). The Soviet’s perspective on the American proposal to neutralize space was overshadowed by mistrust due to the US’s capacity to deprive the USSR of a defense mechanism in case of a nuclear attack (Frutkin, 1963).

Another victim to the Cold War, the International Committee for Space Research (“COSPAR”), was established to preserve efforts in space investigation cooperation part of the International Geophysical Year (“IGY”) (Ezell, 2007). In 1954, worldscientists expressed the necessity for an earth satellite for IGY, 1957. While Moscow and Washington expressed their consent in 1955, Moscow withdrew its willingness to launch said satellite in June and September 1957 (Clemens, 1966). However, soon after on October 4th and November 3rd, 1957, USSR launched artificial earth satellites under the name, “Sputnik” (I and II respectively) from Kazakhstan.

Additionally, the USSR had also completed a successful ICBM test at the time. The

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launch of Sputnik paralleled by constant missile advancements became the basis for the Soviet’s hubris.

While the US wanted to ensure that any object intended to be sent to space is used solely for peaceful and scientific purposes rather than military purposes, USSR demanded complete disarmament via 2 proposals dated March 18th and April 30th, 1957 respectively. The March proposal demanded disarmament in 2 stages, viz. primarily in 1957-58 and secondarily in 1959. Additionally, it also proposed the elimination of atomic and hydrogen weapons; and limitations on guided rockets to be ensued simultaneously to ensure peace (1957). The April proposal suggested all states to formally undertake never to use atomic and hydrogen weapons of any kind for military needs (1957). Interestingly, USSR disregarded outer space as they perceived advancements in the space age as an opportunity to achieve new heights in national security against the US. On July 25th, 1957, Washington proposed to assure global security and space object safety under the purview of “international inspection and participation” within “fair, balanced and reliable systems of control” to clear the possibility of a catastrophic surprise attack (United States Memorandum Submitted to the First Committee of the General Assembly, 1960). To enable such a system, the US suggested the establishment of a technical committee, through a paper submitted on August 29th, 1957 (Western Working Paper Submitted to the Disarmament Subcommittee: Proposals for Partial Measures of Disarmament, 1960), to analyze space objects before their launch to ensure that their purpose is peaceful and/or scientific only.

Shortly after, in 1958, a ban on nuclear weapons, a halt on nuclear tests and the disassembly of overseas bases for such weapons by the US were the 3 conditions that comprised the USSR’s quid pro quo in exchange for limitations on its ICBMs and cooperation in achieving a peaceful space age (Clemens, 1966). Both nations greatly feared the strength of the other: the US feared the misuse of outer space by powerful weapons currently in possession of the USSR; and the USSR feared playing victim to a potential nuclear attack by the US aided by its redoubtable overseas bases. The difference, however, in the anxiety of both nations was that while the US consistently focused on outer space and its possible misuse, the USSR focused on achieving terrestrial disarmament and seldom referred to the use of space in most of its proposals. The USSR repeatedly displayed signs of desperation and persistence, one of which was Moscow’s offer to share data on its rocket launchers and scrap its ballistic weaponry in exchange for US disarmament.

1.1

UN’s Role in the Cold War

The involvement of the United Nations (“UN”) in the Cold War came as no surprise since the subject matter of prevailing discussions was international cooperation in the newly-discovered domain of outer space. Said involvement can be traced back to March 15th, 1958 when the USSR laid down 4 facets of what Moscow considered

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to be the accurate balance between disarmament and international cooperation, some of which directly included the UN’s active participation. The 4 facets (Clemens, 1966) were as follows: 16. No state shall use outer space for military purposes and the launch of any permissible objects shall be under an approved international program.

17. No state shall have military bases in foreign territory, especially in Europe, the Middle East and its proximities; and North Africa.

18. An official body shall be instituted under the UN framework to exercise international control over duties laid down in paragraphs 1 and 2.

19. An official body shall be instituted under the UN framework to ensure the existence and practice of international cooperation in outer space research and study.

Moscow’s proposal, a topic of discussion in a summit conference, was set forth for consideration at the next UN General Assembly (“UNGA”). Moscow’s proposal received ample support from articles published in eminent journals such as the “Soviet State and Law” (russ. Sovetskoe Gosudarstvo i Pravo) in July 1958 and “Izvestiia” in September 1958 (On the Question of Interplanetary Law. Sovetskoe Gosudarstvo i Pravo. [online], 1958). One such article published in “Izvestiia” cleared the global dilemma of the nexus between military use of cosmic space and disassembly of foreign military bases from the Soviet’s perspective, the extract of which is as follows: “Even short and medium-range rockets can leave the limits of the Earth’s atmosphere and fly through cosmic space. The liquidation of military bases will create, consequently, an additional guarantee that cosmic space will not be used for military purposes, thus, ensuring the peaceful character of short-range rockets and ICBMs.” (On the Question of Interplanetary Law. Sovetskoe Gosudarstvo i Pravo. [online], 1958).

November 1958 turned out to be rather eventful for the UN. Firstly, to strike a balance between peaceful use of outer space and international cooperation, the US and 19 other countries put forth a draft resolution for the establishment of an official body to facilitate discussion and appropriate action on the peaceful use of cosmic space (Clemens, 1966). As a result, on December 13th, 1958, the UNGA passed a resolution establishing an ad-hoc body to play the insisted role (General Assembly Resolution 1348 (XIII): Question of the Peaceful Use of Outer Space, 1960) which, however, failed to secure the votes of the USSR, India and the United Arab Republic. A year later, post Khrushchev’s visit to the US, said body became permanent via a UNGA resolution (International co-operation in the peaceful uses of outer space, 1959) which the USSR agreed to join. Secondly, on November 18th, the Soviet revised the draft, previously submitted on November 7th (a replica of the March 15th, 1958 proposal), to no longer persist on the nexus between the peaceful use of space and nuclear disarmament. The updated proposal merely called for the creation of an International Committee for Cooperation in Outer Space Study for Peaceful Purposes. According to the March proposal, one of the prime responsibilities of said

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body was to draft and supervise a global program for the launch of international space objects which was, however, omitted in the November 18th draft. The latter merely focused on the role of the body in coordination activities (The Establishment of an International Committee for Cooperation in the Study of Cosmic Space for Peaceful Purposes, 1958).

The establishment of a specialized UN body to monitor the peaceful use of cosmic space was delayed from 1958 to 1962 due to procedural and constitutional issues between the US and USSR. One such issue was the passage of 2 years before the Soviets began attending meetings of the body as Moscow opined that the existing panel favored the West. Despite said delay, nations continued their discussions on the subject through various other forums that facilitated negotiation (Address by Secretary of State Herter to the General Assembly, 1959). One such discussion, in September 1959, led to a new Soviet proposal prescribing the elimination of overseas bases in the 2nd stage, in succession of which it further proposed destruction of all nuclear weaponry in the 3rd stage, a far less generous offer in comparison to the previous equivalents (Declaration of the Soviet Government on General and Complete Disarmament, 1960).

The “Space Race” or long-term combat between the 2 nations finally met its end in July 1975 marked by the collective launch of the Apollo-Soyuz test project, an enduring present-day symbol of the Cold War. ( Reconciling International Space Law with the commercial realities of the 21st century, 2000).

2

Stabilizing UN Efforts

2.1

UN Treaties

The body of “Outer Space Law” is inclusive of space laws on both, the national and international levels. The UN has brought into existence 5 major treaties in international space law, all of which would respond quickly to scientific discoveries and technological developments, hence, creating a legal body for space law from its genesis. The 5 treaties, together called “Corpus Juris Spatialis Internationalis”, are as under: 20. Outer Space Treaty (“OST”) – 1967; 21. Rescue Agreement – 1968; 22. Liability Convention – 1972; 23. Registration Convention – 1975 and 24. Moon Treaty – 1979.

The treaties intend to allow space-competent nations to predict and protect their interests in outer space while equally respecting the rights of other nations (Law’s Empire and the Final Frontier: Legalizing the Future in the Early Corpus Juris Spatialis, 1999). They are conventional law, that is, binding through obligations upon ratification. They are also international customary law as they are based on

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binding legal rules and an “Opinio Juris Sive Necessitatis” (lat. An opinion of law or necessity) (Hearsey, 2008) Moreover, the OST and the Rescue Agreement fulfill North Sea Continental Cases’ recommendations that “the treaty may reflect customs as agreed by the States during its negotiation process through statements that may constitute Opinio Juris” (ICJ, 1969) and that “the treaty provision has become accepted and followed by States as a custom after its adoption and is said to have “crystallized” into customary norms of international law” (ICJ, 1969). The fact that the 2 treaties are ratified by a significant number of countries with no opinio juris contrary to their obligations forms evidence for the acceptance of the customary character of said treaties by the international community.

However, as effective as the UN treaties may be, they suffer from the limitation of time consumption. The necessity of ratification post establishment and signature of the treaty based on consensus can be the prime cause of potential delay in a dynamic space environment.

2.2

UN Principles

Over time, the UNGA has adopted various governing principles to provide direction to its members concerning the activities in outer space. The decade between 1959 and 1969 was instrumental in the UNGA due to the adoption of resolutions.

These resolutions complimented previous milestones in the outer space realm like the OST. The principle, “Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space” (Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, 1962) had been adopted to further the common interests of mankind in outer space, in light of increasing accessibility. It further reiterates the spirit of the OST and establishes state responsibility along with the need for international cooperation Presently, some principles governing space activities have become contemporary to various nations like the “Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting” (UNGA. Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting [online]) and the “Principles Relating to Remote Sensing of the Earth from Outer Space” (UNGA. Principles relating to remote sensing of the Earth from outer space [online], 1986). The “Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interests of All States, Taking into Particular Account the Needs of Developing Countries” (UNGA. Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries [online], 1996) is one that emphasizes the need for international cooperation and the need for equitable treatment of outer space. It also encourages states which higher capabilities to promote equity among

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other states in the field of space exploration. The UN, via its principles, encourages the upliftment of developing nations.

Another guiding principle is the “Principles Relevant to the Use of Nuclear Power Sources in Outer Space” (UNGA. Principles Relevant to the Use of Nuclear Power Sources in Outer Space, 1992) which addresses the exploration concerning nuclear power in space. While it does not restrict exploration, it mandates the safety assessment of space objects. The principle minimizes threats by mandating missions to undergo such an assessment without which it cannot proceed. There are specific guidelines, emphasizing such safety assessments, which are similar in spirit to the prevention of weaponization of outer space. Security provisions and protective measures are availed to balance the risks of exploration activities. However, as most provisions are not well-defined and can be improved, a revision of these guidelines is essential to meet the technical needs of the existing mechanisms.

Pertinently, these legal principles, popularly termed as “Space Resolutions” (International Space Law: Legal Aspects of Exploiting Outer Space, 2013), serve as guidelines to member nations. They are not binding on the members but attempt to bring the aforementioned concepts into the normative practices of the states.

They are also instrumental in establishing the existence of a rule or the opinio juris in decisions before the Court, hence, are of considerable value (ICJ, 1996). Thus, these UN attempts at establishing regulations governing space and celestial bodies must be viewed as enablers in securing peace in cosmic space.

3

An Analytical Approach Towards the OST

The OST, formally known as 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, is the primary and basic legislation governing outer space law, hence, popularly nominated as the “Magna Carta of Space” (Sprankling, 2014) (International Space Law: Legal Aspects of Exploiting Outer Space, 2013). The OST is premised upon the principles laid down by the United Nations Committee on the Peaceful Uses of Outer Space (“UNCOPUOS”) on a Working Group established for the Long-Term Sustainability (“LTS”) of Outer Space Activities. By the recent end of the group’s mandate in June 2018, 21 foundational principles were agreed upon amongst which some crucial principles of OST are as follows: 1. Outer space is “the province of all mankind” (lat. Res Communis Omnium ( Reconciling International Space Law with the commercial realities of the 21st century, 2000)) and the treaty serves as the parent for the four other space law treaties (lat. Corpus Iuris Spatialis Internationalis) viz. the Rescue Agreement (1968), the Liability Convention (1972), the Registration Convention (1975) and the Moon Treaty (1979) (Sprankling, 2014).

2. Outer space shall be used solely for peaceful purposes (Garber, 1967)

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3. Placement of nuclear weapons or any weapons of mass destruction (“WMD”) in the orbit of Earth or on any celestial body is strictly prohibited (Garber, 1967).

4. States shall take responsibility for outer space activities of non-governmental entities under its jurisdiction (Garber, 1967). A state shall also describe the nature of space objects and activities, and impose liabilities for any damages caused by such an object on Earth or to another State’s property in the course of any space activity.

The Liability Convention envisages 2 scenarios in claiming compensation for damages caused by a space object. Firstly, in case of damage caused on Earth or an aircraft in flight, the launching state of the responsible space object shall be strictly liable despite circumstances being outside its control. Such liability can be absolved only where it can be proven that the claimant was grossly negligent or intended to cause the damage (The ownership and exploitation of outer space: look at foundational law and future legal challenges to current claims, 2003) (Ogunbanwo, 1975). A similar scenario occurred when Cosmos 954, a nuclear-powered satellite of the USSR, fell from orbit on January 24th, 1978, causing contamination of northwest Canadian territory with radioactive debris (Galloway, 1979). Secondly, in case of damage caused anywhere other than on Earth viz. in outer space or on another celestial body, the state shall be liable only if it can be proven that damage caused was the fault of the state/s. (The ownership and exploitation of outer space: look at foundational law and future legal challenges to current claims, 2003). A similar scenario occurred in the collision between the US communications satellite, Iridium 33, and the purportedly neglected Russian military satellite, Cosmos 2251 over Siberia, popularly known as the “2009 Satellite Collision” (Nemiroff, 2009) In this case, the lack of tracking data in the area of collision and conflicting data given by both states led to insufficient evidence to meet the standard of fault in the second scenario.

Thus, the incident was left unresolved (Listner, 2012).

5. Any object launched continues to be the property of the launching State regardless of whether it lands in its sovereign territory or the territory of another State (Garber, 1967).

6. States are obliged to preserve the environment of outer space in the course of their activities and allow other states to observe its space activities and also duly disclose the nature of their space activities (Garber, 1967).

Interestingly, the origin of the OST can be traced back to the letters of the 34th US President, Dwight D. Eisenhower to the then USSR Prime Minister, Nikolai Bulganin and Premier, Nikita Khrushchev in the years 1957 and 1958. While Eisenhower proposed to secure outer space for exclusively peaceful purposes, Khrushchev declined with a demand for the US to retract its nuclear weapons in places like Turkey to obtain any interest in a space agreement with the USSR. The triumphant launch of “Sputnik” by the USSR instilled a sense of superiority and confidence in the nation against the US. Nevertheless, the US enthusiastically proceeded to develop a

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legal framework to ensure peaceful use and exploration of outer space in collaboration with the UN. Thereafter, OST was born to achieve complete demilitarization of outer space considering the past activities of the US and the USSR during the Cold War. Along with it emerged the UN Committee on the Peaceful Uses of Outer Space which the USSR reluctantly joined (Sagdeev, 2008) (Sprankling, 2014).

Today, the OST, drafted by the US and the USSR (in June 1966), applies to activities of exploration and use of outer space, including the Moon and other celestial bodies by its member states (Garber, 1967). The treaty was opened for signature in the US, UK and the USSR on January 27th, 1967 and entered into force on October 10th, 1967.

As of June 2019, 109 nations have ratified the OST (including most spacefaring nations (Sprankling, 2014)) while another 23 states, though signatories, are pending ratification. Article XIV of the OST acts as an entry point for interested countries to accede to the treaty as per the procedure prescribed in paragraphs 3 and 4 (Garber, 1967). Furthermore, the provision entrusts the designation of “depository governments” upon the governments of the UK of Great Britain and Northern Ireland, the USSR and the US with whom instruments of ratification and accession of countries shall be deposited (Garber, 1967). The responsibility of said depository governments has specifically been listed in paragraphs 5 and 6 (Garber, 1967).

Despite the seemingly detailed nature of the OST, it is pertinent to note that there lies substantial ambiguity concerning private party appropriation or claim of ownership of outer space, unlike in Article 11(3) of the Moon Treaty, popularly known as the “controversial child of OST” (International Space Law: Legal Aspects of Exploiting Outer Space, 2013), which expressly prohibits private ownership over the Moon and other celestial bodies as well (UNGA. Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, 1979) The mere existence of said provision in the Moon Agreement questions if the prohibition of private property rights in outer space can be implied from the OST, though not expressly stated. It is pertinent to note that Article II (Garber, 1967) of the OST prima facie prohibits appropriation by states and, further, Articles VI and VII (Garber, 1967) confirm the international responsibility of a state for damage caused by space objects launched by it. The sole source of property rights of a private party is the domestic law of a sovereign state to which he belongs as a national. Thus, the existence of private property rights would imply territorial sovereignty of a state which is expressly barred by Article II. Further, the prohibition of national appropriation by a state extends to a ban on the creation of property rights by the state for its citizens as an implicit derivate prohibition of private ownership. Thus, it would be incorrect to compare the two treaties and use (lat.) expressio unius est exclusio alterius (Merriam-Webster) to assume implied permission of private ownership by the OST. Such an assumption would further imply the successful acquisition of property and ownership rights in space, provided it is in a private capacity and not at a national level, leading to a clash between international and domestic law of the sovereign state. In the words of the International Institute of Space Law,

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“Since there is no territorial jurisdiction in outer space or on celestial bodies, there can be no private ownership of parts thereof, as this would presuppose the existence of a territorial sovereign competent to confer such titles of ownership.” (International Institute of Space Law, 2009) (Sprankling, 2014).

Furthermore, the epoch of the enactment of the OST only witnessed nations participating in space activities due to the development of space research and technology at the time. Hence, the provisions of the OST are most suited to regulate activities at the national level. However, the treaty predicted the involvement of private parties in outer space which reflects in Article VI (Garber, 1967) which imposes upon a state the responsibility to authorize and supervise the activities of private entities in outer space while also imposing international liability for damage caused by such objects (Sprankling, 2014).

3.1

OST Drawbacks

OST’s prime objective was to ensure the peaceful use of outer space. However, the word “peaceful”, though stated in multiple provisions (Garber, 1967), is not defined in the treaty. This negligent omission of the drafters creates an opportunity for dangerous missions in outer space and misuse of the law. One such example is 40th US President, Ronald Reagan’s operation “Star Wars” which involved the installation of WMD in outer space to be used on the USSR with National Aeronautics and Space Administration (NASA) as the controlling unit. It was proposed as a strategic defense initiative (“SDI”) on March 23, 1983, to render all Soviet missiles aimed at the US obsolete and impotent. The operation was planned despite the treaty, barring the same, in existence at the time. It was the potential birth of an arms race in space. Fortunately, the operation was not carried out on account of its impracticality, risk and expense, and was scrapped by President, Bill Clinton in 1993. Moreover, said ambiguity in the definition of “peaceful” raises questions regarding the differentiation of activities of states as being peaceful or threatening. Defense mechanisms in space require a significant amount of scientific research which is permitted under Article IV (Garber, 1967). This creates the conundrum of whether to consider said mechanism of a state in space as part of its peaceful activities since malafide intention is absent, though capable of initiating a space war between nations in the name of self-defense.

Additionally, the treaty remains silent on what it regards as “outer space” as it fails to prescribe delimitation between airspace and outer space. Abiding by the general definition of outer space, that is, “space immediately outside the earth’s atmosphere” (Merriam-Webster [online]), a series of complications arise due to the layers of the Earth’s atmosphere. While aircrafts fly in the troposphere and satellites float in the thermosphere (NASA, 2017), the treaty is authorized to regulate only beyond the exosphere as per the general definition, unlike what the provisions of OST suggest (Garber, 1967). As the treaty regulates scientific research (Garber, 1967) commonly conducted via satellites (ISRO, 2017 ), it regulates satellites within the

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Earth’s atmosphere as well, hence, acting outside the purview of its jurisdiction.

Thus, the above complexities can be cast aside by a simple definition clause inserted at the beginning of the treaty.

4

The Paradox of Sovereignty

State actions have been shaped through their efforts to strengthen their sovereignty by materializing it to achieve newer assets for their nation. It is inherent for states to assert their souveraineté in both domestic and international laws, an assertion that does not differ substantially in the context of outer space. The attempt of nations, like the US to gain foreground in outer space has been via capitalization of their sovereignty. However, when this approach transpires to reveal militaristic intentions, there is a looming possibility of a shift of the balance between other sovereigns. Such an inference is based on the implications of political and international relations between nations that are caused by destructive technologies. Undertaking militaristic expeditions in outer space may disharmonize the existing international relations or cause a substantial change in them.

An interesting approach of John Herz brings forth a perspective that suggests that weaponization can erode the sovereignty that it so claims to capitalize on. Herz’s argument revolves around the idea that a sovereign is recognized and accepted at the behest of its power to protect. With the existence of nuclear weapons, this idea of the power of protection undergoes a drastic shift. The power that such weapons are aimed to heighten is consequently diminished by the use of such weaponry. He highlights how the “hard shell” and “permeability” of the states is obliterated (Rise and Demise of The Territorial State. World Politics. [online]., 2011). If we view the weaponization of outer space in light of this theory, the idea of sovereignty further loses its meaning. However, in the present world, this theory has been widely disregarded as nuclear weaponry has been established by several countries, leading to “deterrence statism” which has been created by the mutual threat posed by several nations that have become the status quo. Although this is considered to be a realistic approach, it is not as stable as it promises to be as the possibility of nuclear warfare can never be ruled out (Deudney, 1995). Thus, the extension of this form of deterrence, based on realism that labels it inevitable, might make the situation far more hostile and multiply the present innate threat.

Further, militaristic interests of potential threats are widely interwoven with the object of space exploration. This idea can be traced back to the launch of Sputnik and the increase in the efforts to place objects in space with the view of improving the militaristic potential of nations (Duvall, 2006). Militaristic interests in outer space intend to improve the surveillance as well as to place space-based weaponry that may be launched on Earth. It is to be noted that several seemingly educational or informative forms of space exploration also have tremendous potential to be exploited for militaristic gain.

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The current situation, when viewed from a realistic perspective, makes the militarization of space a present reality over a distant future possibility. The creation of a weaponized environment in space will result in the dramatic makeover of world sovereignty. Militarization can be implemented through different forms. The transition of militarization into weaponization might be considered to be an inevitable outcome, especially with the infiltration of technology and human resources in outer space. This could be interpreted as the colonization of outer space by powerful nations. Such a step is anticipated to be undertaken by a capitalist state, such as the US, in an attempt to establish a stronghold over a territory that is essentially not subject to ownership. Although the method of implementation is not restricted to any one form, it is safe to infer that the militarization of outer space will reasonably alter the structure of socio-political relation among nations due to assertions of sovereignty that might initially favor certain nations while threatening others, thereby ultimately blurring the lines and permeability of states. This is because the sovereignty that is now defined through the territory would essentially extend itself to become extra-territorial, giving rise to a revolutionary system of rule and dominance between competitive states (Duvall, 2006). While Kenneth Waltz’s perspective might envision such placements of weapons to have a mutually deterrent effect, it is important to spread awareness about the need for resisting or restricting such a scenario that might make the world vulnerable to possibilities of violence against which an assumption of deterrence shall not serve as reasonable protection.

5

Evolution of PAROS

UN’s approach to discussions revolving activities conducted in outer space can be vaguely compartmentalized into two – First, it deals with ‘peaceful uses of outer space’ that is overseen by the UNCOPUOS, 1959 which deals extensively in protecting and establishing international cooperation in matters relating to space exploration. They promote the exploration of space while envisioning to balance the rights of various nations while implementing that pursuit. Second, a parallel discussion runs that deals with the Prevention of an Arms Race in Outer Space (“PAROS”). The issues revolving around the weaponization of outer space became glaringly evident leading up to PAROS becoming an important agenda in the UNGA and thereon, the subject of multilateral discussions on the platform of the Conference of Disarmament (“CD”).

While the OST prohibits the use of WMD, there remains a lacuna for the weaponization of space through the use of other kinds of weapons that might include offensive weapons being placed in outer space that pose an imminent threat to several nations. The threat of an arms race might have led to PAROS becoming an essential

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agenda for the UN but, presently, the existence of space debris is potentially damaging all forms of outer space activities. The accumulation of debris in space poses an extreme threat to damage to future space objects and their access to space.

Further, there is a difference between militarization and weaponization of space.

The militarization of space includes the use of space objects like satellites and navigating technologies that are used for an array of activities including surveillance, navigation, communications, etc. Several states have been engaging in multiple uses of the Global Positioning Systems (“GPS”) and such other objects for direct control or any form of commanding of military operations down the ages, and such activities are not restricted in the present scenario by treaties like the OST. This is because even when peaceful objects are being used for militaristic gain, they do not qualify under weapons as they do not engage in direct destructive mechanisms.

Thus, militarization has been considered to be permitted under the umbrella of the OST by various states (Meyer, 2012). The vast majority of the UN members aim to prevent destructive access to outer space, thereby, avoiding the future possibility of a revolutionized arms race that surpasses territorial boundaries and dismantles the existing status of the global militaristic relations. Thus, the gravity of the situation transpired into the establishment of an ad hoc committee by the CD to deliberate means to identify and examine relevant issues like the protection of satellites and power systems and to encourage confidence-building measures (“CBM”) that would ultimately translate into preventing an outer space arms race.

Furthermore, in 2004, the document on “PAROS” was adopted in UNGA by the First Committee. It has been observed that the states of Russia and China have been extremely encouraging and assertive on the subject of PAROS. In 2007, the outer space harmony was threatened by an act that was noted by the international community. On January 11th, the Xichang Space Launch Center of China was the reason behind a rising concern over outer space peace. The kinetic kill vehicle was supposedly only engaged to destroy a non-operational Chinese satellite, an attempt at which it was successful. The consequence of such a direct ascent antisatellite (ASAT) attack resulted in a substantial aggravation of the problem of space debris.

This event is considered to have resulted in the creation of the largest amount of debris in outer space through a single event ever been tracked. The gravity of problems posed by the creation of space debris has been reiterated previously, making it evident that such an act would stir the international harmony, which it effectively did. To prevent damage that could be caused by this debris, NASA used the technology of its TERRA satellite thrusters (Weeden, 2007). It is essential to note that the effect of this debris is not short-term, it would continue to remain in the orbit for over a century (Analysis of the 2007 Chinese ASAT Test and the Impact of Its Debris on the Space Environment), thereby posing a prolonged threat to the space environment. This event was, therefore, a grave concern in the international community, causing nations like Japan and the US to voice their apprehensions about a potential space arms race.

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The following year, Russia and China proceeded to introduce the draft on the “Prevention of the Placement of Weapons in Outer Space, the Threat or Use of Force against Outer Space Objects” (“PPWT”), which was dismissed by the US stating reasons suggesting malintent. Following an attack of the US by a military missile to dismember a spy satellite, the threat of using weaponry in the outer space became more imminent. The response was seen in the form of the European Union (“EU”) establishing a Draft Code of Conduct to strengthen outer space security. It attempted to strengthen international cooperation in outer space to harbor peace in the space environment. Through its creation, the spirit was to establish security and predictability. The principles in the draft included the recognition of the rights of self-defense in addition to promoting international cooperation and peaceful exploration of outer space. An examination of the draft shows that the provisions are inclusive and progressive towards a more secure international understanding regarding the need for the creation of a sustainable environment.

Presently, the need to establish a promising security system is imperative. This is because technological empowerment gives the nations the ability to use the same resources for proving militaristic superiority. In April 2020, Russia through the implementation of anti-satellite tests has gravely threatened the space environment.

It was aimed at destroying space objects in the lower orbit but resulted as synonymous with the introduction of weapons in outer space (US Department of Defense, 2020). Thus, it is important to address the issue of outer space security without delay and through concrete construction methods.

6

The US Perspective

6.1

US National Space Policy, 2010

The US National Space Policy, issued by President Barack Obama on June 28th, 2010, predominantly pays inward attention towards the potential development of the US commercial sector. The foreground of the policy comprises advancement in US space leadership and its self-sufficiency in the form of innovation and entrepreneurship (US Department of Commerce).

The policy balances on certain principles, one of which states as under: “All nations have the right to explore and use space for peaceful purposes, and the benefit of all humanity, in accordance with international law.” (US Department of Commerce).

Further, one goal has been dedicated specifically to ensure stability in outer space through “safe and responsible operations” (US Department of Commerce).

Through the policy, the US shall pursue bilateral and multilateral agreements to effectuate transparency and confidence-building measures with other nations.

Moreover, it is willing to initiate talks regarding arms-control measures, provided they are effectively verifiable, equitable, and lead to the enhancement of US national security or that of its allies (Office of Press Secretary, 2010).

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Furthermore, the policy empowers the US entity to “deter others from interference and attack, defend our space systems and contribute to the defense of allied space systems, and, if deterrence fails, defeat efforts to attack them” (2010) as a measure of self-defense in an attack. Though a contingency, it creates ambiguity as the policy fails to enumerate the mode of said deterrence, defense and/or defeat, therefore, allowing a potential space war between nations. This enigma places the policy in a position of possible dissonance with the OST, to which the US is a party.

6.2

US National Security Space Strategy, 2011

The US National Security Space Strategy (“NSSS”) is the product of the combined efforts of the US Defense Secretary and the Director of National Intelligence. The NSSS acts complimentary to the President’s National Security Strategy, the National Space Policy (2010), the Intelligence Community’s (“IC”) National Intelligence Strategy and the Department of Defense’s (“DOD”) Quadrennial Defense Review (U.S. Department of Defense, 2011).

Primarily, the NSSS targets US resilience and deterrence of aggression while parallelly upholding national security. One of the requisite elements to accomplish this objective is to ensure responsibility in space which can be achieved in discouraging activities that tend to threaten a safe, stable and secure cosmic space. The NSSS aspires to develop a network comprising alliances with space-faring nations and partnerships with commercial firms, international organizations, etc (US Director of National Intelligence, 2011).

Further, the NSSS aims to formulate a course of action for the upcoming opportunities and challenges in the evolving space environment which is said to be driven by 3 major challenges: 1. Congestion, 2. Contested Environment; and 3. Competition (U.S. Department of Defense, 2011) In the first challenge, the NSSS assures the world of the US’s intention to act out of peace and responsibility in outer space while urging all other nations to adopt the same approach. In ensuring safe, stable and secure conditions in space, the following courses of actions are proposed to be taken: 4. Establishment of confidence-building measures and transparent norms, 5. Increase of knowledge on the prevailing situation in space and 6. Encourage further transparency and circulation of data derived from outer space (U.S. Department of Defense, 2011).

In addition to the first challenge, the NSSS, in the second challenge, envisions to prevent and deter aggression through efforts to promote responsible behavior in space (U.S. Department of Defense, 2011). The significance of responsible, peaceful and safe use of outer space is also put forth in the form of interrelated objectives

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and approaches of the NSSS as it is currently a growing challenge in cosmic space and requires immediate attention in US national security interests (U.S. Department of Defense, 2011).

While peace as a point of prime importance has been drafted in the NSSS, the method of implementing the same has culminated in the “Space Domain Mission Assurance: A Resilience Taxonomy”, a white paper by the Office of the Assistant Secretary of Defense, Homeland Defense and Global Security in 2015 (Federation of American Scientists Organization, 2015). The paper stipulates 3 intertwined approaches to achieve space domain mission assurance, namely: 7. Defensive Operations to stop an adversary kill chain or to warn the targeted mission of defensive actions.

8. Reconstitution to restore diminished or lost functions due to an attack or catastrophic event.

9. Resilience to support all necessary functions for the assured success of the mission aided with shorter periods of reduced capability across a range of conditions and threats (Federation of American Scientists Organization, 2015).

Further, amongst the themes of NSSS recaptured and produced in the DOD’s Defense Strategic Guidance (US Department of Defence, 2012) 2 of them comprise the objective to: 10. Counter WMD. 11. Maintain a safe, secure and effective nuclear deterrent (US Department of Defence, 2012) Firstly, the aim to counter WMD is a collective effort of the US state forces through programs and activities such as the Cooperative Threat Reduction (Nunn-Lugar) Program. US aims to prevent the proliferation of nuclear, biological and chemical weapons by frustrating efforts of nations (such as Iran) persistent on developing WMD. The DOD assures the world of its efforts to detect, protect from and respond to the use of WMD with the help of other agencies of the US government. Secondly, the US shall target nuclear forces that are capable of causing irreparable harm to an adversary in the present and potentially in the future. Besides, the nation promises to further the goal of securing a safe and effective nuclear deterrent through a guarded and cautious arsenal of their own (US Department of Defence, 2012).

Lastly, the NSSS creates an opportunity to resort to self-defense if all other preventive measures and deterrence fail. For self-defense, force shall be used within permissible limits of international law and treaties to which the US is a party (US Director of National Intelligence, 2011). Therefore, the amount of force that can be used in necessary circumstances shall be regulated by the OST as the US is a party.

7

The Direction for the Future

In the words of renowned space law advisor, Christopher Johnson, “It (OST) is essentially the most important and most fundamental source of international space

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law.” (Grush, 2017). The other 4 space treaties merely emphasize the subject matter of the OST in more specific terms. Despite the superior position that the OST holds in the field of international space law, it is a treaty that is binding only post signature and ratification of nations, upon their discretion. Out of a total of 195 countries, 63 countries have chosen neither to sign nor ratify said treaty, leaving them bound by domestic laws in an international arena. The United Republic of Tanzania, for instance, has meager indirect connections to space technology and activities.

Though the signatory of the African Space Policy, it requires expansion in its spacerelated connections to obtain an opportunity for development in the field (Alberts).

This conundrum, faced by many such countries, could be resolved by declaring the OST to be of universal applicability with an amendment to include a definition clause and a dynamic and flexible dispute resolution mechanism of its own. Quoting the Preamble of the treaty, it desires to “contribute to broad international cooperation in the scientific as well as the legal aspects of the exploration and use of outer space for peaceful purposes” which, in turn, shall “contribute to the development of mutual understanding and the strengthening of friendly relations between States and peoples” (Garber, 1967). Therefore, the advancement of the international treaty to the status of substantive and procedural legislation will ensure a larger global control over the demilitarization of outer space along with the fulfillment of its core objectives.

Post being declared as legislation of universal character, an ambassador from each country shall form an official body to enforce the OST. Every decision within the purview of said body shall be approved by the majority of its members while the minority keeps a keen eye on the operations of the majority in implementing the decision voted for. This forms a complete system with the execution of actions and review of the same. Moreover, it is based on the political system followed in countries like India wherein the opposition government (minority) are known as the “watchdogs of the ruling government (majority)”. Thus, with a tested system as the basis, the solution is only strengthened.

Further, given that space travel and exploration was at its infancy at the time the OST was drafted and enacted, it laid higher emphasis on states as compared to private individuals and bodies at the time. However, after 53 years of its enactment, the treaty requires major amendments, some suggested above, to resolve the aforementioned lacunae. Further, considering the dynamic and unpredictable nature of space law, an effective review process of the provisions in the treaty by a global democratic body once in 2 – 5 years would be the wise course of action to adopt.

Secondly, a new and separate official body or an existing body such as the UN Disarmament Committee shall be entrusted with the vital responsibility to conduct a detailed study on the working of each space object before its launch. To be permitted for launch into outer space, the object shall be subject to the approval of this body. This will act in furtherance of the intention to ensure the peaceful use of outer space by the UN and body of international law. If a particular space object involves certain risks of causing potential damage, an agreement shall be taken in writing by

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the launching state conveying their acceptance of international responsibility and liability for damage caused, if any.

Thirdly, ever since the weaponization of outer space has become an emerging topic, there has been increasing dialogue between nations revolving around its intricacies.

Despite the establishment of several guidelines and principles, there is a gaping void in the context of binding legislation. It is crucial to acknowledge, as a volatile issue that concerns nations across the globe, that prevention of weaponization of outer space should be addressed beyond bilateral discussions. All positive contributions and progressive steps towards a binding law should ensue in a multilateral cooperative stage, a platform that could be provided by the UN CD. Fourthly, an initial yet vital step that needs to be addressed before proceeding to enact laws is the need for absolute transparency. It is imperative to establish a welldeveloped procedure for enactment of multilateral agreements with concrete provisions outlining the responsibilities and obligations of nations, while also enumerating the penalties for violating them. It is only through the creation of an error-free system, that the problem at hand can be adequately subdued.

Lastly, while preventing the greater and more elaborate displays of weaponization, and an arms race, it is also imperative to address the consequences of other forms of militarization. For instance, it is essential to lay down procedures and guidelines to prevent the accumulation of space debris that could cause long-term damage to the future of space exploration and security. There should be proper rules and restrictions for space objects that have been launched for non-weaponized activities to ensure that they are not misused to gain an undue advantage. The EU draft, as previously discussed, shows promise as an initial concrete step towards establishing boundaries for various nations. There should be an emphasis on the enactment of such provisions after addressing the inhibitions of various nations through harmonious dialogue and discourse. The realm of outer space should be regarded as an area of sanctity and peace. To malign this untarnished platform to engage in a struggle for dominance and asserting sovereignty, would ensure drastic consequences.

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6. Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space. United Nations. 1962. s.l. : UNOOSA 1962, 1962. 1280th plenary meeting, U.N. Res. 1962 (XVIII).

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41. —. Listner., Michael J. 2003. s.l. : Regent Journal of International Law, 2003.

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44. UNGA. Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries [online]. United Nations. 1996. s.l. : UNOOSA, 1996,, 1996. UNGA 51st Session 83rd plenary meeting, U.N. Res. 51/122..

45. UNGA. Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting [online]. United Nations. 1962 : UNOOSA 1962. UNGA 37th Session, 100th plenary meeting, U.N. Res. 37/92.

46. UNGA. Principles relating to remote sensing of the Earth from outer space [online]. United Nations.

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47. UNGA. Principles Relevant to the Use of Nuclear Power Sources in Outer Space. United Nations.

1992. s.l. : UNOOSA, 1992,, 1992. UNGA 47th Session, 85th plenary meeting, U.N. Res. 47/68.

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51. US Department of Defense. 2020. Russia tests direct-ascent anti-satellite missile. U.S. Space Command Public Affairs [online. [Online] United States Space Command, Department of Defense, 2020. https://www.spacecom.mil/MEDIA/NEWSARTICLES/Article/2151611/russia-tests-direct-ascent-anti-satellite-missile/.

52. US Director of National Intelligence. 2011. Preventing and Deterring Aggression against Space Infrastructure that Supports U.S. National Security. National Security Space Strategy Unclassified Summary [online]. [Online] Department of Defense, United States of America, Office of the Director of National Intelligence, 2011. https://www.dni.gov/files/documents/Newsroom/Reports%20and%20Pubs/2011_nati onalsecurityspacestrategy.pdf.

53. Weeden, Brian. 2007. Chinese Anti-Satellite Test Fact Sheet. Secure World Foundation.

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8 Equitable Management of shared natural resources: Argentina v. Uruguay Garima Ojha Gujarat National Law University, Gandhinagar, India garimaprof1611@gmail.com

Saloni Subanshi National University of Study and Research in Law, Ranchi salonisubanshi@gmail.com

Abstract. The judgment delivered by the International Court of Justice in the Pulp Mills Case (2010) (Argentina v. Uruguay) is undoubtedly one of the most significant pronouncements in international environment law in gen-eral and on equitably managing of a shared natural resource and transbound-ary environmental harm in particular. It is more relevant today than ever be-fore when the world has woken up to the importance of finding a balance between economic development and environmental protection and sustain-able development is on the lips of every nation.

The most important aspect of this case is that the obligation to ‘protect and preserve the environment’ and to observe ‘due diligence’ was interpreted in the light of changing times and evolving international environmental law to mean compulsorily conducting an Environmental Impact Assessment (hereinafter EIA) so as to assess the potential environmental damage and en-able the mitigation of such damage. The court also stressed on the preventive principle as the customary rule which obligates a state not to use its territory for activities which might cause transboundary harm.

With respect to a treaty signed between both the states for optimum and rational utilization of the shared natural resource, the court separately dis-cussed procedural and substantive obligations and clarified whether they are distinct or inter related. The nature and functions of the body constituted for ensuring fulfillment of these obligations has also been discussed in detail.

The court has also addressed something that is very often ignored in the narrative of development- the human lives it affects. The court looked into whether consultations with populations affected due to the construction was done as a part of EIA or not which gives it a new dimension and makes it more effective and valuable.

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This case can go a long way in guiding states how to equitably manage shared natural resources, prevent potential disputes and promote the cause of sustainable development.

Keywords: International Environmental Law, River Disputes, Sustainable Development, Due Diligence.

1

Introduction:

This case in international environmental law is a textbook example of alleged ‘transboundary pollution’. The proceedings were instituted by Argentina against Uruguay for alleged violations of its obligations under the Statute of the River Uruguay, a treaty that was signed by them in 1975 (hereinafter 1975 statute). The 1975 statute aimed to regulate the management of the river and established Administrative Commission of the River Uruguay (hereinafter CARU for that purpose). This allegation was made due to the authorization and further construction of two pulp mills by Uruguay on the River Uruguay which serves as a border between the two nations and is therefore, a shared natural resource.

Argentina accused Uruguay for breach of procedural as well as substantive obligations contained in the 1975 statute.

2

Uruguay’s non-compliance with its procedural obligation

The Court first considered the alleged breach of procedural obligations under Articles 7 to 12 of the1975 Statute.

2.1

Uruguay’s failure to inform CARU

Article 7 mandates a state party undertaking an activity specified under it to notify about the same to CARU which in turn determines on a preliminary basis within 30 days whether the planned activity might cause significant damage to the other party. Initial authorizations were issued by Uruguay to both the mills and a decision was taken on the environmental impact of these projects without the involvement of CARU. It also did not convey to CARU the required information even after repeated requests.

While discussing nature and role of CARU, the court noted that CARU is not just a transmission mechanism between the parties and neither of them may depart from the framework unilaterally and put other channels of communications in its place. Like an international organization, it has been endowed with a legal personality under the 1975 statute. The court also invoked the ‘principle of speciality’ which governs international organizations. According to it, international organisations are vested with powers by states that create them and the limitation on these

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powers depends on the common interest of these states i.e., the purpose of its creation. In this case, unilateral departure from the treaty on part of Uruguay was not consistent with the purpose of creation of CARU i.e., equitable management of the river and so it was necessary to follow the procedural obligation established with respect to CARU. It was put forth that the object of the 1975 statute- “optimum and rational utilisation of river Uruguay” requires that the State which plans to initiate a planned activity informs CARU about the same at a very early stage so it can determine on a ‘preliminary basis’ whether the plan ‘might cause significant damage to the other party’.

Early stage was interpreted as whenever a state is in possession of a plan which is sufficient to enable CARU to make the preliminary assessment. But, the question as to what can be considered as ‘significant damage’ remained unanswered.

The Court ruled that Uruguay by not informing about the projects to CARU had given priority to its own legislation over the procedural obligations prescribed under the 1975 Statute and had therefore, disregarded the widely accepted customary rule enshrined in Article 27 of the Vienna Convention on the Law of Treaties (hereinafter VCLT) which prohibits a party from invoking the provisions of its domestic law to justify its failure to perform a treaty.

The invocation of Article 27 by the court is forward looking in the sense that it promotes adherence to treaties on shared resources and discourages aberrance thereby, preventing potential disputes.

The court also reiterated its ruling in the Corfu Chanel case (1949) in which it was held that the preventive principle has acquired the status of customary rule and it is every state’s obligation not to deliberately allow knowingly its territory to be used for acts contrary to the rights of other states.

This pronouncement can serve as a guiding light for states to determine how to use a shared natural resource. Environmental damage, unlike other damages is irreparable and thus, demands a preventive approach instead of a remedial approach.

2.2

Uruguay’s obligations during the Direct Negotiations phase

Regarding the question of disagreement between the parties on the planned activity continuing at the end of the negotiation period it was held “that Uruguay did not bear any ‘no construction obligation’ after the negotiation period” as the same is not expressly laid down in the 1975 statute. This view of the Court appears to be erroneous as they should have adopted a broader interpretation of the 1975 Statute. Judge Vinuesa in his dissenting opinion stated that it was wrong to assume, as the Court did, that the above obligation could not be derived from the Statute’s provisions.

The Court could not ignore that the Parties must perform their obligations under Article 12 in good faith, and that the no construction obligation that was in force during the negotiations should have continued until the Court’s judgment.

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The Court here missed an opportunity to clarify the points regarding what conduct should be expected by the states when they enter into negotiations for a shared natural resource.

3

Uruguay’s compliance with its substantive obligations

It was held by the Court that Uruguay had not breached its substantive obligations under Articles 35, 36 and 41 of the 1975 Statute.

3.1

Whether breach of procedural obligations itself constitutes breach of substantive obligation?

The court explored the link between the Procedural and Substantive obligations.

It pointed out that in spite of the functional link between the two obligations, the Statute nowhere mentions that by complying with the procedural obligations the party will fulfill the substantive obligations or that breach of former led to the breach of the latter as well. This opinion has been criticized as it is difficult to see how non-compliance of procedural obligations does not affect the substantive obligations when both of them reinforce each other instead of being separate.

The court took into consideration various substantive obligations such as obligations to maintain ecological balance, check pollution and preserve the environment. It was observed that the process adopted by court in distinguishing substantive obligations from procedural obligations appears to be flawed because they somehow overlapped as these two obligations are intertwined and it is difficult to segregate them.

3.2

Obligation to prevent pollution and preserve the aquatic environment under Article 41 of the 1975 statute.

Court’s interpretation of the obligation . The parties had an obligation to ‘protect and preserve the aquatic environment from activities that might cause transboundary harm’. This obligation to ‘protect and preserve’ was interpreted by the court to mean undertaking an EIA to assess potential harm to the environment: “This obligation has to be interpreted in accordance with a practice, which in recent years has gained so much acceptance among States that it may now be considered a requirement under general international law to undertake an environmental impact assessment” The court also stated that EIA is included under due diligence which implies the duty of vigilance and prevention. This interpretation of ‘protect and preserve’ and due diligence establishes the obligation upon states that share a natural resource to conduct EIA of activities which may cause harm to those resources even when no treaty has been signed between them to that effect.

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Scope and content of such EIA. The court stated that it is for each State to determine the specific content of the EIA on case to case basis. While devising such content, the nature and magnitude of the development plan, its likely unfavourable impact on the environment and the need to exercise due diligence in conducting such an assessment has to be kept in mind. To determine whether the EIA conducted by Uruguay fulfilled the substantive requirements, the court evaluated it based on two parameters: Whether alternative sites were considered? . It is necessary to consider possible alternative sites to gauge whether environmental damage can be mitigated. The court relied on a report by International Finance Corporation which showed that four locations were considered before determination of the final site and rejected Argentina’s argument that assessment of possible sites was not carried out.

However, judge ad hoc Vinuesa criticized this in his dissent opinion because there was a mere mention of the four sites in a one page of the study and proper reasons for discarding those sites have not been stated. The reasons for not choosing the sites ranged from vicinity to tourist areas to proximity of ‘high end’ residential areas. Moreover, no evidence was provided to prove that an EIA was conducted in those alternative sites.

Parties also disagreed on the geomorphological and hydrodynamic characteristics of the river at the chosen location but the Court stated that there was no need to examine the scientific and technical validity of the arguments placed before it.

This has been termed as a lost opportunity for the court as following such traditional approach would increase doubts in the mind of the international community as to whether the court is well positioned to handle complex scientific questions.

The handling of scientific evidence in such a manner without assistance from an expert seems questionable on part of the court. Moreover, the court did not provide justification for its decision.

Whether the populations likely to be affected from both the sides were consulted?

Uruguay had conducted meetings with participation from Argentine NGOs and around 80 interviews on the basis of which the court deduced that consultation of the affected populations took place.

This conclusion failed to pronounce whether the consultations were meaningful and the concerns raised were taken into account or not.

3.3

Extent of liability of the State where harm originates

EIA has to be conducted before implementation of a project. The liability of the state where the harm originates also continues once the EIA has been completed.

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In a progressive tone the Court stated that, continuous monitoring of its effect on the environment has to be done throughout the life of the project.

J. Greenwood in his separate opinion further emphasized that Uruguay has a continuing obligation to prevent pollution and maintain strict monitoring and control with respect to any discharge. This is a positive step in the direction of sustainable development and can help the cause of countries that are looking to safeguard their interests in a shared resource. However, here also, the condition under which such monitoring can be considered mandatory has not been laid down.

This ruling gives freedom to states to determine the content of an EIA according to the perceived significance of a development project. However, this might prove dangerous as a state may conduct EIA according to its own standard only in the name of exhibiting exercise of due diligence on its part whereas, in reality it might not serve the purpose of mitigating environmental damage. The need for an international set standard for an EIA becomes even more pertinent in the case of a shared resource, so that the other states do not feel wronged. It is difficult to come up with a universal set standard for conducting an EIA as the environmental significance and the scale of an industrial project are some of the many factors that have to be kept in mind. However, parameters for categorizing an industrial project should be laid out and according to these categories, fixed guidelines for conducting an EIA can be prescribed by the Court.

4

Reparation for contravention

The Court ruled that Argentina’s claim for compensation could not be upheld as Uruguay had not breached the substantive obligations and further disagreed to order cessation of construction activities to Uruguay as breaches of procedural obligations had occurred in the past and had now come to an end. Judge Vinuesa in his dissenting opinion stated that the breaches cannot simply be remedied through mere recognition of such violation. An obligation of non-repetition should have been imposed upon Uruguay so as to ensure that such willful obstruction of 1975 Statute will not take place in future.

5

Conclusion

The present case is a very important case in the domain of international environmental law as the same addressed numerous significant issues relating to protection of environment, sustainable development and management of shared natural resource. It is revolutionary as it gave an unprecedented opinion regarding EIA which would further pave the way for solving many such cases of shared natural resources and will surely be used as a momentous precedent in international environmental law.

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References 1. 2010. Pulp Mills on the River Uruguay (Argentina v. Uruguay). ISBN 978-92-1-071089-3, I.C.J. Reports 2010 : International Court of Justice, 2010.

2. 1949. The Corfu Channel case. 1, I.C. J. Reports, 1949 : International Court of Justice, 1949.

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Interviews

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9 Interview Session with Mr Marc Finaud, GCSP Interviewed by Amulya Anil & Alexandru George Mos Former Managing Editors, SAJIL A. Mos: Dear attendants, my name is Alexandru George Mos, I am a student in Romania at the Babes-Bolyai University and, together with my colleague Ms. Amulya Anil, we have the honor to introduce Mr. Marc Finaud, who is a former diplomat and a renowned expert in the area of security, nuclear disarmament and non-proliferation. His contributions , encompassing a vast array of international experiences in diplomacy and high governmental service, as well as an impressive suite of publications recommends him as a specialist and passionate scholar. Mr. Finaud currently holds the position of Head of Arms Proliferation at the Geneva Centre for Security Policy. On the behalf of the aspiring South Asian Journal of International Law, we invited him to sketch an insight on how our society will design its security approaches in the aftermath of Covid-19.

Good Afternoon, Mr. Finaud!

M. Finaud: Hello, thank you very much for the invitation. I am flattered to be invited by such a prestigious International Law journal and I am, of course, willing to answer any question you might have. Thank you for the introduction, you mentioned that I have been a diplomat, serving the French government for more than 30 years now and part of the academia and research as a trainer for junior diplomats.

Since I understand your focus is International Law, I could perhaps summarize my career and my approach by saying that, of course, International Law is very important and crucial especially in the field of international relations, but this is sometimes an insufficient approach to deal with complex geopolitical issues, and therefore, when I am asked for advice, or when students wonder what focus they should be looking for, what sort of studies they should pursue, I’d say, if you have a chance, do both. Do International Law because it’s one of the basis of our international relations system, but also complement this with a political science approach. It will help you understand better how the law was formed and the treaties negotiated, what were the interests behind these negotiations, how can you explain their outcome, which sometimes can be below the expectations, how the law is implemented or not and what the international community can do about this. So, in a nutshell, I recommend to have these two approaches which complement each other.

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A. Mos: Thank you, sir! Now, taking into account your experience and diplomatic career, I’d like to ask you how has the Non-Proliferation Treaty (hereinafter NPT) been beneficial to the world?

M.Finaud: Well, of course, it’s a very controversial issue. You know, the NPT is now celebrating half a century as it entered into force in 1970. The review conference of the state-parties was supposed to be held in New York, but it had to be postponed because of the coronavirus crisis. It took us 50 years of implementation or lack of implementation of this treaty. The treaty is considered, as you know, by many states as the so-called cornerstone of international security and the basis for the actual three pillars which are non-proliferation preventing new states to acquire nuclear weapons, disarmament by those that have such weapons and the promotion of peaceful uses of nuclear energy. Now, when you look at the balance achieved in 50 years after it entered into force, you could say it’s been very effective in preventing or limiting the spread of nuclear weapons. We may remember that in the early ‘60s, President Kennedy predicted there could be up to 25 to 30 states with nuclear weapons. Fortunately, this didn’t happen whether thanks to the NPT or whether because of states giving up having nuclear weapons, considering this as a better approach for their own and overall security. However, this remains to be demonstrated. The main frustration of governments and civil society in general about this balance sheet is that the second pillar of disarmament was not fulfiled as it was pledged. In the Treaty, there is the famous Article 6 which requires state parties to negotiate in good faith several issues (i.e. measures to prevent a nuclear war). We could argue that, in a way, this has been succesful because no nuclear war has taken place. Secondly, measures for disarmament meaning prohibition and elimination of nuclear weapons and finally the treaty on general and complete disarmament under international effective control meaning, you know, not all kinds of weapons should be eliminated but there should be a global effort to reduce the arsenal and to pave the way gradually to a world with lower levels of armament, brought consistency with the UN Charter to have lower levels of armaments to precisely avoid this diversion of resources from the other needs of human society such as healthcare and economic development. So, in a sense, the NPT has been successful, even as source of frustration for many countries. In a response to another tweet by an American ambassador was very high admirative of the NPT, I said yes, but the number of nuclear weapons compared to 1970 when the Treaty entered into force was multiplied by two. And if we look at the numbers of nuclear weapons in service for 15 years after the entry into force, these numbers continue to increase. It’s still so many times enough to destroy humankind and the planet. Certainly, there is a neeed to go before that.

A. Anil: How do you see India's Nuclear and Security Imperatives? Do you think India as a BIMSTEC nation-state can gauge itself as a stabilizing power if it becomes a permanent member of the UN Security Council, taking into context its legitimacy issues as a hard and soft power?

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M. Finaud: The case of India is remarkably interesting. The history of armaments, disarmaments, and of arms control effort is quite important in this context. India was always leading, however there was frustration on the part of India in early 1970s when the NPT was concluded and India felt that the pledged promise for eliminating or reducing the nuclear weapons was too weak and this analysis was demonstrated by reality. India therefore had an ideology that in case the superpowers do not venture into the elimination of the nuclear weapons, well in time, then India must also not shun the nuclear weapons as a matter of self -defence. Therefore, India confirmed the same in the year 1974 and in re confirmed its military ability in 1998, precisely after the NPT was extended indefinitely. There was a correlation, because, despite the criticisms and various other countries about the lack of implementation of the NPT and the disarmament, nothing much was done and this forced India to confirm that it would have its own nuclear weapons. However, by this time, it was too late for India to join the NPT, since the treaty itself did not allow it, once the country had tested nuclear weapons after 1967. So what was left for India to do, was to continue its efforts in the favour of disarmament, India’s desire to be a permanent member of the UNSC is legitimate, but then the challenge would be to establish a correlation between the dominant seat in the UNSC and the possession of nuclear weapons. Because such an instance would be the best to encourage proliferation – the countries would feel that in order to be a permanent member of the UNSC it must possess nuclear weapons. Therefore, the best way to promote non-proliferation is by adopting a mechanism which is the other way around. There were several attempts made in the past to enlarge the UNSC and India would fit perfectly into the prominent members list perfectly. But then it was equally import for the UNSC to constitute member countries which do not have nuclear weapons. This would break the linkage discussed before. In the current situation, we know everything is frozen, because the reform of the UNSC requires a broad consensus, since it requires the approval of the existing P5 countries and we know that Japan has also applied to join as a permanent member.

However, China is not comfortable with India or China being a veto country. The fact that the decision makings are dealt by the P5 countries has paralyzed the Council, rather we must adopt a procedure of having a Secretary General, interviews, and voting.

If in case, the countries which have tested nuclear weapons is made a permanent member of the UNSC, then it would defeat the purpose of allowing appeals to the UNSC, since one of its own permanent members would be in non-compliance.

However, we need to think about how important it is for countries like India, Pakistan and Afghanistan to join the global effort towards disarmament. The major non acceptance of the NPT is majorly because of their perception that nuclear weapons are legitimate enough to protect themselves. But the treaty takes force (which now has 124 countries), it will be difficult for the nuclear armed states to continue their use using an argument of the weapon’s legitimacy for self -defence.

Therefore, the best that the countries could do is unilaterally shun the nuclear

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weapons before they join the NPT just like the way South Africa did, this could be the first option. The second option would be that the states join the NPT without a special status – they would just have an obligation to present a plan on how to eliminate the nuclear weapons and adopt the same approach as in the Chemical Weapons Convention. There was a time frame for the elimination of the weapons, and the big powers couldn’t cater to the same and hence had to negotiate for an extension, while Russia could eliminate the weapons, United States of America is still lagging behind. This indicates that the countries are allowed to possess the prohibited weapons provided they are in the process of eliminating them and simultaneously pledging to not use them.

A. Anil: Do you see any positive light among the AU, ASEAN and SAARC nation-states to engage into better security networks and notions to transform the conventional nodes of security governance in the Global South, due to the Global North's relative influence over such issues for years to go?

M. Finaud: To answer this question, we will have to adopt an approach, which is not purely legal but also includes the aspects of various geo-political dimensions.

In a region like Asia, there are so many conflicts related to seawaters, borders, territorial competitions. It is a mix of internal and the external efforts. For example, China considers itself as a part of the Asian region and yet is competing with several other countries, especially in the South China Sea. Such conflicts cannot be resolved by only addressing the symptoms. It is important to have to have international multilateral norms to ensure that the consequences do not get out of control. One of such norms is the Arms Trade Treaty. However, it’s a pity that only a few Asian countries have joined this treaty. This is mostly due to the fear that their imports or exports would be hampered. Though it’s been 6 years since the treaty was brought into force, the arms trade is still booming. The main purpose of the treaty was however only to prevent the misuse of these weapons against civilians. There is a necessity to use the existing legal framework to efficiently use such treaties to attain the global objective of reducing human suffering. At the same time, we cannot be solely depending upon such frameworks. This requires, bilateral efforts, regional efforts, sub regional efforts and security structures. The Europe too took some years to put a common security structure in place and yet there are persisting tensions in the Organizations such as the OSCE. We, therefore, also have to adopt some structure for communications, dialogues, and confidence building measures. History has demonstrated that it is an illusion to start with the most difficult tasks, such as the elimination of the nuclear weapons. Before this, simple gestures could also be done – India and Pakistan, every year, have been exchanging the list of nuclear installations they possess, which agree not to target. Such confidence inducing measures reduces the risk of nuclear wars. There is a serious need for negotiations. In the case of North Korea, it is a typical example of conflict and soft conflict, because the war is still officially going on since 1950. Therefore, unless there is a legitimate and a real peace treaty coupled with various other measures of mutual recognition of security assurances, economic cooperation etc. North Korea will have no incentive to give

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up on its Nuclear Weapons and will continue to appear as a threat to the other countries in the region. Treaties can therefore play a very important role but is not the end of the story.

A. Anil: Syed Akbaruddin, India's previous Permanent Representative at the UN said in an interview: "A third one is issues of high seas. Again, beyond your Exclusive Economic Zone (hereinafter, EEZ), there is limited understanding of what states can do and what states cannot do. Now, why should we focus on these broader thematic issues?

M. Finaud: This is an example where treaties can help, along with the negotiations of the Convention of the Law of The Seas. It only indicates that multilateral efforts by the countries, except the mutual concessions are of paramount importance. In this way, the result would be a sort of a broad consensus. There still could remain issues which are not negotiated and hence paving the way for further new negotiations. The Geopolitical dimensions are important, since there lies an economic interest which promotes economic competitions. This lets us know that various other approaches are necessary too. Whenever an issue of non-compliance arises, it depends upon the nature of the treaty, if the countries must get back to the UNSC or proceed towards any other means of settlement. It depends upon the goodwill and the good faith of the states to accept such forms of settlement. In the case of China and Philippines, there was a judgment of the International Court of Justice, it could however also be by the means of International Arbitration, Good Offices etc. However, such settlements must be based on co-operational spirit and not confrontational spirit. Most of the times, the big powers would resort to methods of obligations or sanctions, like the United States of America is doing now as a part of its unilateral east policy. We anyways now that such methods are going to fail, even the overall history of sanctions mostly say the same. Therefore, co-operational attitude is a need over the confrontational attitude.

A. Mos: Certainly, sir! As you previously mentioned, the responses of nationstates were rather local and unilateral. Many states sealed their borders and adopted numerous restrictions on human rights and freedoms. But while these measures were enacting pursuing a legitimate purpose (the protection of their citizens), will governments eventually use this state of emergency in order to enact more strongman policies. What do you think of the future of security in this context?

M. Finaud: It’s always a temptation for governments to use crisis to declare exceptional measures and enforce governmental powers vis a vis the counter-powers of the media and society. When you have authoritarian regimes, such in Russia or China, instead of investing more into public health and research, they invest into face recognition, so that we can control the population. Now, however, there is some sort of international public opinion, which expresses itself through social media, and is becoming an international actor. It has already demonstrated its ability to put pressure and push governments to change and adopt new measures. The Climate Change movement, if you like, which translated into certain international

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agreements, was initiated by the civil society. It has this potential and it should not be given up. Moreover, in democratic regimes, every person has the right to vote, although we often take it for granted and sometimes we don’t even use these rights, hence authoritarian, populist leaders are elected. It should be a wake up call for every individual and the civil society to get up and fight for these rights and for a balance. When you have a health crisis, you know that some of your freedoms are to be reduced, but this is for the common group and we have to accept that. Similarly, we accepted regulations fighting terrorists because they were meant for the common good. The majority does accept such restrictions such as the right to criticise and protest, but this it will require mobilization on behalf of the people and the civil society.

A. Mos: Another response which would be registered on behalf of governments would to pioneer recovery mechanisms. We all know that this pandemic triggered an economic crisis, so states must enact several recovery programs. We saw how the US tackled homelessness by allowing homeless people to use abandoned houses. Will states extend their recovery mechanisms to cover traditionally weaker social categories in order to foster a better social preparedness (i.e. introducing the universal basic income)?

M. Finaud: This is going to be one of the most important consequences of the crisis.

Society will have to mobilise itself to ensure that their representatives will do the right thing, because the resources available on this planet are limited and, as we have seen, crisis like this reduce production, consumption and taxable resources.

In the end, I think there will have to be a sort of New Deal or a decision of balancing priorities. I think it will be very difficult for governments to resist now the mainstream consideration that public health and welfare and the wellbeing of the people has to be the ultimate priority. Hopefully, I think this will bear consequences on weapon spending. The public spending was rather favoring the military all over the world. You could increase by half the budget of the WHO. In other words, the current budget of the WHO, which is losing the American contribution is less than a one year’s military spending. That shows the huge discrepancy on what is spent on using to kill vs on what is spent for preserving.

A. Mos: Thank you! I will now be addressing the questions submitted on YouTube. Are there any restrictions on States, such as India and Pakistan, not target each other with biological weapons the same way Nuclear non-proliferation conventions work. So that the protection is extended in the case of biological weapons.

M. Finaud: Yes, there is a specific treaty, the Convention on Biological and Toxin Weapons, which has been signed and ratified by India and Pakistan. Thus, they both agree not to use or to develop or possess biological weapons. And they were very strong supporters of this treaty. Some lawyers even outline that it represents customary international law because it’s a very old taboo, a provision which has been codified and now, it’s basically applied by all states. There are, however, two problems. When this treaty was negotiated, during the Cold War, after the US gave

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up its own Biological Weapons Program, they convinced the Soviet Union to do the same, thus becoming multilateral. The first problem was that it was negotiated rather quickly and the negotiators considered that there is no need to have a verification mechanism included in the Treaty. Nobody would be proud of having such horrendous weapons and even the military would find no utility in their use. Hence, they didn’t consider essential to have a verification regime, unlike the Chemical Weapons Convention, which was negotiated 20 years later, considered to have a very strong and intrusive verification mechanism. But in the meantime, something happened. The Soviet Union, one of the depositories of the Treaty, was found cheating, act later revealed by Yeltsin after the collapse of the USSR. For 20 years, the Soviet Union kept secret its Biological Weapons Programs, until Yeltsin agreed to eliminate them, Russia being now in compliance with the Convention. This brought into attention the need for an additional protocol, which was negotiated between 1994 and 2001. But then, the Bush Administration decided against it, thus no protocol was adopted. However, a series of meetings of experts to consider and work on other means of ensuring that no such weapons are produced was initiated.

The second aspect was the risk of such weapons being used by terrorists (this was possible in certain cases, not necessarily against humans, but against animals and plants). Here, the Bush Administration ultimately convinced the Security Council to adopt a binding resolution, Resolution 1514 in 2004 that obliges all member states to prevent any access to non-state actors to biological and chemical weapons, this being a requirement for all states, but especially demanding for developing countries (you need to have proper legislation, law enforcement, border control) as they have to respect the obligation of reporting regularly. This is, thus, another international effort, based on cooperation, that has been so far, very successful, However, as it’s becoming easier and easier to manipulate DNA and edit genes, a risk is still present.

Such processes are now available almost freely on the internet, hence the many conspiracy theories about covid-19 of being the result of such manipulation as a manmade virus in a Chinese laboratory, fortunately demonstrated as false by all the experts. There were some labs which worked on the Spanish Flu, and if anyone is capable of spreading, the consequences would be devastating. So, what would be the conclusion? You used the key-word “preparedness”. If society is better prepared with well equipped healthcare personnel, hospitals, universal healthcare, any form of disease, whether it’s natural, accidental or intentional, it would not cause the same damage. So, it’s a form of disincentive for a terrorist or anyone tempted of using disease as a weapon, because the impact wouldn’t be very traumatic. You also mentioned the social consequences of the pandemic. We saw the capability of systems based on social democracy or welfare states in preventing unemployment compared with traditional capitalist systems. If you want to avoid these kinds of catastrophic consequences, we have to perfect our social system.

A. Mos: Thank you, sir! Another question which has been submitted is how we as a state or international community can hold the Chinese People's Republic

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responsible for spreading or failing to prevent this pandemic if sufficient evidence will be provided. What action can be taken against China?

M. Finaud: Again, this is a very hypothetical question. If there is evidence, I’m not sure we’ll have access to it (i.e. this virus was manipulated, or even accidental, we could ask questions for clarifications within the Biological Weapons Convention, which could have potentially been breached.

A. Mos: Is China a signatory party to this convention?

M. Finaud: Yes, China has been, in fact, a very active supporter, but then, again, the question is that of control. Even in a country like China, with a strong security apparatus and an authoritarian regime, it is very difficult to control everything. There are other forms of ensuring that this is not done. Among the scientific community, many years of awareness raising efforts to spread good practices, safety measures, codes of conduct. And here we have a dilemma because the basis of science is transparency (ie sharing results and publications for the benefit of the whole humankind). On the other hand, if you share to much sensitive information to be used for malicious purposes (creating biological weapons), then you might run into difficulties. So, it’s a matter of ethical, social and professional responsibility needed to be part of the education and curriculum of this research community. If, in the worstcase scenario, we have an evident breach of the commitments of legal obligations, the question is what do we do? It could be a very difficult and dangerous tendency of doing this unilateral sanction and this doesn’t solve the problem (US with sanctions against North Korea, Iran). What is needed is just the opposite (the cooperative approach).

A. Mos: Certainly, but how then may we envisage another method of holding China or another state accountable outside of unilateral punitive measures? Because, in order to enforce a judgement of the ICJ, for example, according to the UN Charter, a state has to address the Security Council. And while China is a member of the Council, we might not be able to see any resolution being rendered, particularly aimed at condemning this state.

M. Finaud: This is one of the main weaknesses of the whole UN system and it led to a sort of paralysis of the Security Council whenever one of the permanent members is a party or one of the supporters of a party in a conflict such as Russia, clearly that’s a main flaw. Reforming it would an option, but not so easy. I’d say the recourse, would be public statements supported by many states or civil society organizations. Certainly authoritarian regimes such as China don’t like to be cornered losing influence over their clients or partnering states. I’d say this is the only legitimate resort, of course excluding the use of force at all costs.

A. Mos: Thank you, sir! Another follower has asked how Iran’s status as a nuclear power would affect it’s regional position in the area and how other states from the Middle East will respond to its nuclear developments?

M. Finaud: This is a very important case study. Of course, it’s still a current and actual issue. Looking back, those who have studied this issue, there was a time

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when, after the revolution, the Iranian regime did consider acquiring nuclear weapons. The main driver was not as much Israel that is a nuclear power, but was the rising nuclear program conducted by Saddam Hussein. Once Hussein was defeated, its programs were dismantled by the UN, Iran didn’t have any reasons to acquire nuclear weapons and halted any form of research and investment in weapons. It did, however, continue to produce fissile material, officially only for peaceful purposes, but there are certain thresholds above which, once you enrich uranium, above 5%, then 20% and then, quicker, 90%, which is the military grade. Iran wanted to have this flexibility, at least to have the technology to do so, in case it wanted to acquire nuclear weapons. The international effort, materialized in a Multilateral Agreement concluded in 2015 (the Joint Comprehensive Plan of Action, hereinafter JCPOA) allowed Iran to keep maintaining this technology, but not at the level which would enable the production of nuclear weapons. It resulted in restrictions of the degree of uranium enrichment, permanent inspections. Once the US withdrew from the agreements, act which was not sanctioned by the Europeans, Russia or China, we found ourselves in a different situation, as Iran, considering the Agreement based on reciprocity, felt legitimate to reduce its own commitments after one year. But this was done in a reversible way and it always remained at a low level, much below the level allowing Iran to manufacture nuclear weapons if it decided to do so. We are in this transition phase, with the advent of military confrontations between the United States. I would say the tipping point is if Iran is aggressed militarily by US or Israel, Iran would take a strategic decision, perhaps withdraw from JCPOA and even NPT and, then, develop nuclear weapons. Again, purely hypothetical, sometimes used as a threat, but that’s a bargaining chip, but this could happen only in response to what Iran felt as an aggression that made the decision to acquire nuclear weapons necessary, indispensable to protect itself.

Hopefully, this is a worst-case scenario because it would justify an even more immediate action or preemptive strikes and also trigger a Domino Theory with Saudi Arabia or Turkey acquiring nuclear weapons. Certainly, this is the worst case scenario since the JCPOA was precisely negotiated to prevent.

A. Mos: Another question I’d like to advance is how will the imagery of international organizations evolve after this pandemic. Taking into account the decision of US to withdraw its contributions to the WHO, how will covid-19 affect international organizations in terms of budget resilience as some states will prefer more unilateral and local actions in the future.

M. Finaud: Even before the pandemic, we saw emerging unilateral tendencies on behalf of the US and Israel, authoritarian regimes, populist governments in Europe and these trends can badly affect our society and international relations. I think that this pandemic could act as a sort of wake up call for more multilateral and cooperative action. As there is often a huge discrepancy between health and military spending, I’m sure that responsible leaders will take into account the prospects of preparing for the next crisis- which we know that will happen sooner or later,

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supported by the increasingly relevant voices of civil society and media and rationally choose the direction of budget balance.

A. Mos: Thanking you, I’ll let my colleague, Amulya to conclude the session with one last question.

A. Anil: Another area of interest would obviously be technology with a human touch. Increasingly, resilience of human beings is an important factor that all of us have been confronted with. Whereas there are disasters, can we have a more humane approach to these?

M. Finaud: In the current crisis, the pandemic is a sort of a wake-up call to let us know that there are certain threats which are global threats. These threats cannot be mitigated even by the most powerful states such as the United States, like it is happening now. The first response towards the pandemic was to underestimate its destruction, because there was lack of scientific knowledge, trust, and confidence in the scientists. The second is that there was a lack of coordination, cooperation, and assistance. Even the WHO should have tried to help because it was its mission.

But then it has its no enforcing power instead has its guidelines which can only suggest and not force the states to close borders, announce lockdowns, etc. There is hence a need for preparedness and global multilateral approaches because cannot be solved in a regional context. Such pandemics would lead to a lot of behavioural and thought process changes. The countries did come forward to help each other, but this isn’t sufficient for this has to be made a new paradigm. This paradigm would be human security card and must be made a priority. Since these threats are transnational, they require multilateral global approaches and non-confrontational approaches.

A. Anil and A. Mos: Thank you, sir! The entire team of Internationalism Editorials expresses gratitude for having the chance of collaborating with you. It has been an honour!

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10 Interview Session with Mr Suddha Chakravarti, ON Research Interviewed by Sulekha Agarwal Associate Editor, SAJIL31 S. Agarwal: India’s non alignment bent came at a time where there were 2 distinct power camps neither of which necessarily stood for the problems of the third world countries and naturally India sought to be one of the leaders, however the power landscape has changed quite a bit since that time given this change, is India multi alignment a very conscious effort towards reaching a certain defined aim, if yes then what, or is it just adapting itself to a changing landscape?

S. Chakravarti: India’s non alignment came at a time when there were two distinct power camps but with the change in time, India has to adapt as well as consciously sign up for multi alignment because India’s interests are multi aligned. We live in a multi polar world now and that the power now is not just divided between states, but we have non state actors and any other forces of globalization which affect the foreign policies. The stance on multi-alignment should be on value-based alignment. That is the interest of the nation as well as balancing the costs and benefits that arise due to such alignment should be focused on.

S. Agarwal: Where does India stand in multipolar world regionally and globally?

S. Chakravarti: Shashi Tharoor had once very well expressed how we are both super power as well as super poor. India is a country which has its own set of achievements making it par with other developed nations. For example, India’s recognition as space power, as nuclear power, etc. India is a developing country hence with these achievements India also has its own set of third world problems like, poverty. India has always had the capabilities to become one of the global powers but as of now India has a recognition as a regional power. In terms of value-based relationship India has been absent from Non-alignment Movement for some time due to our interests but currently Honourable Prime Minister Narendra Modi’s participation in NAM conference, one of the biggest multilateral organizations having 120 members. This involvement with the NAM organization and our position in these meetings instils confidence that

31

The Interview was edited by Kunaal Manish Sinha, Research Intern (Former) at Internationalism.

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if there is a cold war, India can take up the leadership role and mobilise the 120 nations thus forming another power bloc.

S. Agarwal: Is PM Modi’s representation of India as a peace-loving country, holding true?

S. Chakravarti: In the recent years, India has seen a lot of sharing of its culture with the rest of world, be it World Yoga Day or Make-in-India campaigns. These cultures or soft power resources are very old and introducing these principles in foreign policy helps the world to interact with India’s cultures. The second reason for the change in such policy making is to be attributed to advancement in connectivity and information technology. These advancements were the reason why Make-in-India gained so much momentum. This export of culture and the soft power is not enough for gaining representation it has to be backed by hard-power. We remember the 1962 defeat, due to India’s soft-power tactics. Nehru at the centre opted to defend than to be aggressive following the principles of non-violence. Hence, these principles of soft power need to be backed up by hard power. The recent, Dokhlam incident, is a great example of hardpower politics. Hence there should be a balance between both the principles. As discussed above India needs to integrate such domestic policies which can later be integrated into international policies. That is one step of how India will contribute towards its culture.

S. Agarwal: Difference in treating of vulnerable groups and communities, can this be attributed to change in Indian approach and where does this put India in cultural leadership as a protectionist?

S. Chakravarti: India is playing role in humanitarian assistance to various nation as well as communities but in the recent times there has been an increase in communal protest, these domestic challenges can be attributed to geopolitical surrounding and issues.

There are 2 images which can be formed one is that of exporting fear and the second image is that of exporting our culture as the representative of peace. But in the domestic sphere, India has seen an increase in violence and hatred. This destroys the image of India as [a] protectionist [country]. Hence to maintain the image of India as a protectionist the domestic image need not be improved.

S. Agarwal: What will the power structures look like, once this pandemic is over?

What would be India’s position with respect to alignment?

S. Chakravarti: As discussed above if there is a cold war, India should lead another group, that is, Non-alignment Group. This was in respect of leadership post pandemic.

India’s position with respect to alignment should be leadership based and ambiguous.

India’s multi-alignment is necessary but should only be based on value-based interests. Now many critic that strategic interests of the nation are not clear under India’s foreign policy. The ambiguity in such foreign policies are very much needed, as these foreign policies need to be dynamic.

S. Agarwal: China’s String of Pearl strategy S. Chakravarti: In terms of engagement and neighbourhood policy, SAARC is becoming dysfunctional because of the enmity in between India and Pakistan. The two main

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areas we should also focus on is Sri Lanka and Maldives as in the rest India’s neighbourhood, China has been successful in pushing its agenda. As China has immense eco influence and China’s ‘String of Pearls’ is a 2 fold approach , that is, firstly for trade and commerce, and secondly though not on paper but these points can be militarized to dominate India Hence two immediate requirements is firstly, focusing on India’s immediate neighbourhood, and secondly have an Indian Ocean policy.

S. Agarwal: As far as ‘Belt and Road’ initiative is concerned, what does this strategically mean for India?

S. Chakravarti: India has been reluctant to join this initiative because of financial strength and secondly this would increase the presence of China in the region and there is a lack of faith on China. On the other hand, the contentions raised by experts is, India could lose an important opportunity of boosting trade and reducing travel time. After 1990 one of the foreign policies was to join as many tables and forums as possible and then negotiate value-based interest.

Economic corridor between Kangla to Kashka would benefit India as this would result in geopolitical competition with Pakistan. Secondly, China’s interference in India’s sovereignty is not possible as India is in the power to negotiate. Hence, it would be beneficial for integrating Eurasia and therefore would play an important part in the neighbourhood policy.

S. Agarwal: How should the relationship built with China, when India itself does not want other nations to enter contracts with China?

S. Chakravarti: India and China are 2 competing nations, with disputes, however rivalry is competitive and not emotional. India should collaborate with China on valuebased aspects which have same effects on both the nations. Developing Economic Corridors would be strategically as well as economically preferred than maintain a geopolitical rivalry.

S. Agarwal: Belt and Road initiative as claimed by China is a historical trading route that they want to reconstruct. Are there any historical examples for India to promote as a narrative?

S. Chakravarti: China and India have different exports and that China is a bigger manufacturing hub in comparison to India, with these policies based on unifying trade in entire Eurasia continent, India can only refuse to concur with China on the basis of its soft power tactics. We can feel a sense of fear when we talk about containing the China’s foreign policy. These containment policies only make sense when we are in a position of Cold War. As China does not get into multilateral treaty making, it is not really possible to make them accountable to a treaty-based system.

S. Agarwal: India and China can have a treaty in terms of value-based policies, like climate change, but the Chinese foreign policies are ambiguous as on the one hand they are active on International forums to promote sustainable development whereas on the contrary they are building dams and expressways in seismic zones.

S. Chakravarti: In multipolar world different countries have diverse cultures but have same interest in protecting their community. China has tried occupying the vacuum

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created by America’s foreign policy. India could also try to take the leadership role, but it did not. India and China have the same geopolitics, hence India not acquiring the position left vacant by Americas foreign policy has deprived India from contributing to global goods. The fact that there is ambiguity in China’s foreign policy can only be for short term, as in the long term they are bound by their geopolitical location. Hence, there is no need to have a policy to contain China, China would itself restrict its actions.

S. Agarwal: Can India and EU set together set a narrative of sustainability, inclusivity and parity, which are European principles to trade and push China for balance?

S. Chakravarti: In trading within a multi polar world it is not possible that every nation agrees to let go off flexibility in trading or agree for a preferential treatment. For example, Brexit. Keeping the feeling of rivalry or any other feeling aside, one should put their focus on balancing.

S. Agarwal: Cultural heritage is an asset to soft power. Dark heritage and soft power strategies have not been explored yet, have they?

S. Chakravarti: Though not much recognized yet but dark heritage plays a subtle role in decision making of an affected nation. Though highlighting these dark pasts are a part of promoting cultural sensitivity and it is not harmful and nor is it necessary and hence India does not need such dark heritage to explore. These dark heritages commonly people know about and where India is considered it is not necessary for India to use its dark heritage. Concept of dark heritage comes under cosmopolitanism and an act of a state to deliberately undermine the dark heritage of another state would only result in harming the future business transactions with such states.

S. Agarwal: What do you think about the question over China’s role in the Coronavirus-19 pandemic?

S. Chakravarti: China’s image has no doubt been in question, but China has also been praised for its action plans to overcome the virus. Apart from this China backs up their soft power with hard power. The use of their hard powers protects their business from being damaged by the reducing attachment towards China’s soft power. Hence, even if China’s soft power deteriorates it is backed by hard power which will keep a check on the nations image abroad.

India has mostly all the soft-power resources but positioning it is the key. Many contend that these foreign policies are not substantial as even though in the cosmopolitan settings people have engaged with Indian soft power resources, but engagement is not enough. India needs to also affect the international policy making by such engagement.

These policies need to express India’s interest abroad. India needs to have a neighbourhood policy, and that the foreign policies should not be affected by position-based approaches but should rather be based on value based approach. India should make such policies which create positive perceptions abroad as this affects the making of International Relations.

Apart from this India should not restrict itself from an extended neighbourhood and follow up on the Look East policy and should therefor maintain holistic policies. The

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nation should create such international goods and public goods that benefit everybody, only then would India’s soft power resources be utilized.

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11 Interview Session with Mr Dexter Roberts Interviewed by Abhivardhan, Editor in Chief, SAJIL Abhivardhan: Good evening to all from India. We are here for the new episode of Global Hint and we have Prof. Dexter Roberts with us in this special episode with Akash Manwani and myself will be discussing further about Prof. Roberts next book which is the “Myth of Chinese Capitalism”. I would like to request Akash Manwani to introduce Sir and begin the discussion.

Akash Manwani: Before we proceed with today’s seminar, let us first get acquainted with our speaker, Prof Dexter Roberts. Our guest for the evening holds a Bachelor’s degree in Political Science from Stanford University and a Master’s degree in International Affairs from Columbia University. He worked at the Bloomberg Businessweek as a China Bureau Chief for more than 2 decades. Mr. Roberts is an influential journalist who has bagged numerous awards for his famous works dealing with the rise of companies, entrepreneurs, migrants and civil societies. He is currently a senior fellow at the Atlantic Council’s Asia Security Initiative and a Mansfield fellow at The Maureen & Mike Mansfield Center at the University of Montana.

His most recent work addresses how China’s legacy policies are leaving a mark on the ‘Households Registration Systems’ and leading to social inequality and tension which is the main factor responsible for holding back China’s development. Most of his work mainly focused on China’s growing economic and political influence which drove Mr. Roberts to author the book, “Myth of Chinese Capitalism”. We are extremely honoured to have the opportunity to get first-hand insights into the book from the author himself. Thank you for accepting our invitation Sir, we are truly delighted to have you amongst us this evening. Would you like to give any opening remarks?

Prof. Dexter Roberts: Thank you.

Akash Manwani: Could you explain the title/theme of your book and how variables like worker, factory and family help in better understanding of the Chinese economic model?

Prof. Dexter Roberts: There are several myths which I deal with in my book.

The primary myth of Chinese capitalism is that its very real economic reforms which I use capitalism as shorthand here for economic reform that have driven

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growth and lifted living standards so impressively over the last few decades are going to continue inevitably. Actually, if we look at china over the last five plus years, we've actually already seen a dramatic slowdown in the pace of economic reforms and this has real implications for the productivity of the economy and the ability of the Chinese economy to continue to grow at such a rapid pace as countries and companies around the world had become used to. So that would probably be the primary myth of the title of my book.

Another big myth is that China's middle class, which again has grown very impressively over many years, will continue to grow in leaps and bounds and what I argue in my book is that a system which dates back many years actually to the Mao Zedong era which in effect keeps the workers, migrant workers in particular, their relatives and families from rural China in effect, in second class status. It holds back their incomes and unfortunately ensures that they don't have access to the same level of health care nor the same level of education for their children as those people from the cities. These policies that are still there today, will actually be a very significant obstacle to China continuing to grow its middle class.

The three elements that you mentioned I think, the worker, the family and the factory, as I said particularly the migrant workers are unfortunately prisoners of this system which keeps them in second class status. It has huge implications for their families because of their inability to access the same health care and education system in the cities where they often work as migrants that means that their families are usually split wherein their elderly relatives will stay back in the poorer parts of China where the migrants come from as will their children. Their children can't usually get into public schools in the cities so they end up having split families. The factory has been the primary driver of the Chinese economy. China’s factory to the world model which has served overall economic growth of the country quite effectively but going forward for a whole variety of reasons, China has to move beyond this factory to the world model and try to become a much more domestic-consumption driven and service driven economy.

Abhivardhan: My question to this would be as a follow-up to the very discussion that we have started. Since the 1950s after some failed attempts at socialism and subsequent adoption of private ownership, private agriculture, special economic zones, etc., do you not think that the foundations of Chinese economic model are built upon capitalism?

Prof. Dexter Roberts: As I mentioned a moment ago, when I refer to capitalism in my title, it certainly is what we have seen is that China has, real aspects of capitalism as we see it elsewhere in the world but what I am really focusing on or what I really mean by capitalism is continued economic reform and opening and do think that China's very impressive economic growth so far has been very much built on

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economic reform and opening. You know a little bit of history, this was launched of course in the early 80s by former leader Deng Xiaoping. He called this policy reform and opening and this indeed is behind the very tremendous progress we've seen in China in the intervening years. It was a combination of reform of the state enterprises that at one point really dominated the entire economy. They still are very powerful but the reform was key to this form of Chinese capitalism. It involved knowing many rural people, about half of China's population and migrating there and moving into much more productive jobs than in agriculture, mainly in factories and on construction sites today, more and more service oriented industries. It involved also the opening and the creation of a housing market whereas there had been none before. Before all the housing was owned by the state and people's apartments were given them by their employers and that also was a major reform starting in the early 2000s.

Another key part of the reform was welcoming, particularly after China joined the World Trade Organization, which brought in a tremendous amount of capital and also technological know-how which also drove economic growth so all of these elements are capitalistic in their way with a Chinese turn to them or a Chinese touch to them. But again as I pointed out a few minutes ago, we've really seen a slowdown in those economic reforms or in that growing capitalism if you will in china in recent years.

Abhivardhan: Thank you so much sir. So over to you Akash.

Akash Manwani: Sir we do understand that a hint of capitalism does exist to some extent, so if not capitalism then what ultimately has led to non-egalitarian societies in China. What are the three main factors according to you?

Prof. Dexter Roberts: Well again, this goes back to when Xiaoping performed an openings in the late 70s early 80s and again while that unleashed waves of productivity over the economy and really drove both economic growth and also a very impressive lifting of overall living standards in China at the same time it has grown economic inequality and a worrisome today wealth gap in China. The reforms were effective in what they were meant to do which was try to lift the overall growth of the country and lift most living standards but they also arguably attenuated the already large wealth gap between for example the coastal parts of China and rural parts of China or the interior of China as well as the gap between those people that hail from the cities in China and those who come from the countryside. So theEconomic reform in recent years has all along been increasing income inequality but in recent years unfortunately we've seen the wealth gap grow even much larger. Research by the noted income inequality scholar Thomas Piketty along with a gentleman named Gabriel Dukeman from Berkeley, shows that China now actually has one of the most unequal societies in the world. It is on par with Russia actually and

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just as alarming that the wealth gap is growing, again at about the same pace as it is growing in Russia, which means that China has one of the most unequal societies in the world. I argue in my book “The Myth of Chinese Capitalism” that much of that inequality today has to do with a couple legacy policies which date back to the Mao era. And one is something called the ‘Household Registration Policy’ or the Hukou policy which in effect ensures that the migrant workers do not get access to the same health care nor education for their children as those people from the rest of the societies and the other one is something called the ‘Dual Land Policy’ and this is very much behind the wealth gap today. The Dual Land policy means that whereas in the city we've seen an explosion of wealth and the urbanites in china have been able to buy and sell their apartments, that has not happened in the countryside at all. The nature of how the land is defined in the countryside means an effect that the farmers or the migrant workers that have applauded land back in the countryside have not really been able to monetize that land and have certainly not been able to either rent it or sell it at market rates and this again stands in great contrast to the wealth generated by property sales in the city and is behind this wealth gap today.

Abhivardhan: Thank you so much Sir. What has been the role of private indigenous Chinese businesses in contrast to resource-rich state-owned entities in the idealization of Chinese economic growth?

Prof. Dexter Roberts: So private businesses have been crucial to China's economic growth today and probably the most dramatic statistic that shows the importance of private enterprise in China. It is something like 80 percent of four-fifths of urban workers. Urban people in the workforce are actually employed by private companies and not by state companies. So that's a very important number that shows how important private businesses are in China. Whether you look at tax revenues, overall revenues, profits generated, private companies have really done an impressive job in China today. At the same time, again I would argue over the last five plus years, an increasing reassertion of control by the big state enterprises in the Chinese economy and this time frame very much matches the present leadership of China under Xi Jinping. There's been a real renewed emphasis on ensuring that the big state enterprises not only play a major role in what people call the commanding heights of the economy, the important industries like whether it's aerospace or energy generation, but also more broadly play a very large role in the economy and all along we have see the outsized role in how the economic playing field in China is tilted to support State enterprises over private enterprises. If we look at the banking system itself, which is almost exclusively government-owned or state-owned, really has loaned the bulk of its resources and its financial resource or directed the bulk of its financial resources towards supporting state enterprises rather than private enterprises. And again, what I am a bit concerned about is the trend lines which show really a reversal of these reforms that have given private entrepreneurs

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and private enterprises a larger and larger role in the economy and instead are reemphasizing the role of data enterprises. The other thing I should mention is any private enterprise that reaches a certain size in China really has a couple of different mandates that it needs to meet and the traditional one of course would be turning a profit and being a profitable private company but at the same time as they become large, it becomes very important that they also ensure that they that their actions as a company is broadly meshed with those goals of the Chinese Communist Party, the leadership of China. So there is an expectation by the leadership of China and by the party that the large private companies don't just think about profits but also think about what they can do to help the state and help the Communist Party.

Akash Manwani: Thank you so much Sir. My next question is, we all know that from the 1970s, Chinese delegations have been taking foreign trips to the West and they have been particularly impressed by the economic model of the West and economic success of the West. So there I want to know how much has the West influenced the Chinese Economic model and what similarities or alterations do you see in the Chinese Economic model and the Western Economic model?

Prof. Dexter Roberts: So there is, without a doubt, China took many cues from the West as it developed its economy and there's you know as you said there were many a delegation that had gone and learned from the Western countries in deciding how to open up its economy and of course many delegations from the rest of the world and from the west that came to China and we certainly thought perhaps even the apex of that closeness with China's entry into the World Trade Organization. I covered that as a journalist in 1999 when the U.S and China signed the Bilateral Accession Agreement to get China into the WTO and then in 2000 and late 2001 when China entered the World Trade Organization and so many of the reforms before that the commitments were made to open the economy during the joining of the World Trade Organization and for years afterwards. We are indeed modelled on western practices, I mean we saw China's effort bailout some of its debt through Asset Management Companies in the early 2000s and those Asset Management Companies, just to site an example, that were set up by China were very much modelled on what we'd seen in the U.S with the resolution thus far. So setting up these vehicles that would help big companies and Banks deal with their bad debt that was clearly modelled on the West and on the model of the U.S. In recent years we've seen a real shift, I would say the first real key moment actually was the Global Financial Crisis where we saw at that time a real sort of rethinking of this tendency to model the West and think that the West would have the answers for economic reform, for economic growth during the Global Financial Crisis and as the colonel said in China, who is a financial journalists, that's the first time I really started to hear from Chinese officials but also from the heads of Chinese companies who said hey you know it looks like you guys haven't done a very good job with the collapse

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of Lehman Brothers and other problems with the Global Financial Crisis and perhaps unfettered financial markets pose real risks. So there was a real rethinking that began then about almost blindly following the West in terms of reform. In the last years there's been as China's economy has become so much more powerful, now the world's second largest, you know many people think on track to become the world's largest, there's been a rethinking as well and we've seen also china's efforts to try to play a much larger role in the existing global financial architecture, you know what whether it's in institutions like the IMF and the World Bank and others, but we also see it in China creating or being the driving force behind the creation of the new organization, the Asian Infrastructure Investment Bank. would mean a good example. China has pushed Belt and Road Initiative to another very good example of China wanting to go its own way I would say and to a degree and sort of not only have its own Chinese model of financial and economic development but try to get the rest of the world well to consider it rather than to the Western or American model.

Abhivardhan: Thank you so much Sir. So the question which we would follow up now would be that in the light of the COVID 19 pandemic, untimely disclosure blunder committed by China as well as territorial aggression toward its neighbours, what is the future of foreign direct investments in China and if alternatives are trying to be created they are in process, I think so, can any south Asian country like India or Vietnam or Bangladesh be a suited alternative to China?

Prof. Dexter Roberts: So I think there are very large opportunities for countries like India and other countries in South-East Asia as the world, I wouldn't say and some people talked about d coupling, that's sort of a fool's errand and no country or company or at least no country can really effectively absolutely decouple from China but there is clearly a move towards diversifying the global supply chain.

There's been a real almost a wake-up call with COVID 19 and earlier with the twoyear trade war with the U.S about the risks of being too focused on one market and one's global supply chain. So we're seeing that before the trade war with rising costs in China, particularly rising labor costs, average manufacturing wages in China now are higher than in Malaysia or even in Mexico. We have seen big multinationals trying to diversify out of China. Classic example is Apple which you know has been telling some of its very big Taiwanese suppliers from Foxconn to Wistron and now Pegatron to diversify to other countries. And India of course in both those three examples Foxconn, Witron and Pegatron has been a beneficiary, I believe in South India. And so back to my original point, no one expects global companies to divest themselves of China and it has to do with the fact that China, of course, is not just a global platform for manufacturing but it's one of the most important markets in the world with a very large middle class although as I argue in my book, one that appears to be selling in growth. So companies will want to remain in China because of that market, because of this amazing ecosphere of supply Chains that

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was built up in China, because of the impressive logistics but again you know we look around the world, there are a few countries that have such a substantial and such a potential market as China does, and India is one of them and India by the way of course has a you know a much younger population so it's not dealing with some of the demographic challenges. It absolutely and already is going forward and will be more and more beneficiary of this global supply chain diversification and again, other countries around the region and around the world.

Akash Manwani: Thank you so much Sir. My next question is that we have all heard about the Belt Road Initiative but we have not heard of China’s Digital Silk Road Initiative and by that I mean research of 5G services during the pandemic. So what do you think are going to be the future trends after Chinese 5G, interprets or scraps into different countries including Eurasian countries and Russia?

Prof. Dexter Roberts: I expect China's Digital Silk Road push to only grow into strength so on that China has built up around the world, we see some of that sort of a dialing back because of economic reasons, it's expensive and also because of the global pushback against we're seeing the years of debt diplomacy related to China so that's been a bit of a graded headwinds for the Belt and Road Initiative. The Digital Silk Road, I think will continue to grow. First of all, the capital investments are not as high as they would be for the traditional infrastructure investments and secondly, China's, you know, is using COVID 19 as almost a selling point. So we're seeing companies like Alipay or Tencent that have developed apps for example that monitor a person's health situation and those were used very effectively in China and I think though you know there's a push to try to get those into other markets around the world and it wouldn't surprise me if they are welcomed to a large degree.

Obviously we've got things like cloud storage, Big Data which China has done a lot on, which I believe as well would be an area that China would push in the Digital Silk Road overseas. And then of course there's the big one which is the 5G and so far China mainly through Huawei ZTE is providing you know quite affordable 5G technology and obviously the U.S is very concerned about this and other countries have become concerned it seems, as well more recently like the U.K, Germany and other countries, Italy about the security strategic implications of such a heavy reliance on Chinese 5G and so you know that is an obstacle to China's expansion without question but as long as China is selling 5G at affordable rates with decent technology, countries like my own the U.S are going to face real challenges in convincing countries that might not have so much money to put forward for their 5G programs, to not adopt the Chinese system. The last thing about Digital Silk road in particular 5G, is that it is clearly a top priority of the Chinese government and Huawei is a top priority of the Chinese government as we've seen in the various diplomatic manoeuvres around the world relating to Huawei and so the leadership under the Xi Jinping will continue to push and put the resources of the state to the best of their ability behind companies like 5G and encourage them to continue this push overseas. So I

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think the Digital Silk Road is going to be a top priority and we are going to see the Digital Silk Road pushing into countries around the world more and more going forward.

Abhivardhan: Thank you so much Sir. So, one thing we have seen that amidst this pandemic, there's been a shift in the approach, where we have seen that there is a lesser reliance on exports now and there's a greater reliance on domestic consumption, India as well as other south Asian countries are already trying to do that and even the global North is doing that. So what future trends do you see for the Chinese economic model and consequently its impact on the globe?

Prof. Dexter Roberts: So this is clearly one of the top economic priorities of the Chinese government as I said earlier, they know that this old factory to the world model which was mainly based on one of the key underpinnings of which was low manufacturing wages and we realize that it is no longer effective going and they cannot rely on it. As I said the two-year trade war with the U.S and COVID 19 has made that even more clear to the Chinese leadership. So what do they want to do, they see a moving, an imperative and even more so today I would argue in, moving towards our service economy keeping manufacturing but making it much more automated because they don't have cheap workers anymore and as you just said, growing domestic consumption and that is very much a key priority and we have heard that from leaders right up to Xi Jinping in recent months. They've made that connection with COVID 19 and said you know the world trading system is being devastated by this pandemic, we need to rely more on the spending power of our own people . So this is again what I mentioned earlier, a system which even today ensures that about half the people, 300 million or so migrant workers plus their relatives in the countryside, another several hundred million second class citizens and again this is through these policies: the ‘Household Registration Policy’ (Hukou in Chinese) or the ‘Dual Land Policy’ and those policies in effect ensure that they hold back the consumption of this very large proportion of the population.

They are behind things like Chiang Ching personal savings in China, I believe is only about eight percent but this compares to a global average of 25 percent. They are behind China's difficulty to try extra consumption as a proportion of GDP in the economy. China has been trying to boost domestic consumption for these reasons, they see it as a key to continued economic growth in China. Consumption is just under 40 percent and that number that has not changed very much despite the fact that the Chinese government has said that it is a very high priority and again it goes back to these policies. So about 40 percent domestic consumption, 80% developed countries like the U.S were going up to like local 75%. So consumption has not grown in the way that the Chinese government would like to see it do and what are the implications for China are they really need to deal with these two in particular, these two legacy policies and find a way to better to integrate the other half of

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China, the migrants and the real people into the economy if they want to domesticate these people. The implications for the world are very serious as well. What it means is the very impressive economic growth rates and the continued growth of the middle class in China which have been key to you know, been very important for companies and for countries around the world as a global growth as global growth drives [us].

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12 Testimonials of the Winners of the William C Vis International Moot 2020 Interviewed by Abhivardhan, Editor in Chief, SAJIL Nikhil Dongol, Managing Editor, South Asia, SAJIL

Introduction Kaira Pinheiro, Anand Krishnan Sunil, Sahaj Mathur & Ashika Jain, students from NUJS Kolkata were interviewed after the results of the William C Vis International Moot 2020 were released.

Questions Asked Why Arbitration Moot? Is it something specific about it that made you take interest in this Willem C. Vis International Commercial Arbitration Moot?

Kaira: Both Ashika and I (Kaira) had done arbitration moots prior to our stint in 2020. Ashika had participated as a speaker in the NLS Arbitration Moot 2019, while I had been a researcher in the Vis East Moot, 2019. Due to our prior experience, we were both passionate about arbitration and were extremely fortunate to qualify as per our university moot internals process and to represent NUJS at the Vis Vienna International Commercial Arbitration Moot 2020. This moot served as the perfect opportunity to not only research further on our areas of interest but also to meet and present our arguments before immensely esteemed arbitrators and legal luminaries.

Can you elaborate on the subject matter of the moot and how did you prepare for it including the collection the reading materials?

Kaira: The Vis Moot primarily deals with 2 aspects - the procedural aspects of an arbitration, as well as the merits of the case at hand. The procedural issues that were argued in this moot were two-fold. The first issue dealt with the validity of a

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unilateral arbitration clause, and as a consequence of that, the jurisdiction of the tribunal to decide the dispute. The second issue dealt with the admissibility of expert evidence in light of a potential conflict of interest between an arbitrator and a party-appointed expert. The merits issues pertained to the conformity of the goods concerned and whether a suspicion of defects without any tangible proof of the same could in itself amount to a non0conformity under the CISG. Further, the remedy sought by the buyer, whether repair or replacement, was also an issue.

For the procedural issues, we had referred to the treatises written by Redfern and Hunter, Born, and Waincymer. In addition to that, we also referred to online case material and scholarly articles available on Kluwer Law International.

For the merits issues, we referred to commentaries by legal scholars such as Professor Stefan Kroll, Professor Ingeborg Schwenzer and Professor Petra Butler, to name a few.

Have your views of the arbitration changed in any way after your participation to this competition or after the research and the process that you had to go through?

Kaira: I wouldn't say that my views have changed per se, but yes, this moot did give me a broader and better idea about arbitration as a method of dispute resolution.

My first moot was also an arbitration moot so I did have a perspective about it. One thing about arbitration which attracted me since Day 1 was the flexibility that it gave to the contracting parties. Unlike other dispute resolution mechanisms, the procedural flexibility that it offers is really ideal and helpful in the real world commercial scenario, which in itself involves myriad complexities of its own.

Did you find the Moot Problem coherent to the current challenges related to International Commercial Law and Arbitration? Why? Kaira: Yes I feel that the problem was representative of the problems faced by entities who engage in international commercial transactions. It dealt with a very relevant problem related to the suspicion of goods. We found that through our research that it is a problem which is faced by companies. There was no single solution to it as this was something that had to be solved in a case to case basis. The arbitration issues involved the competency of the arbitration tribunal as well as the degree of reliance that was to be given to expert evidence. Both these issues come up frequently in arbitrations around the world. So I feel that the problem was very detailed and was drafted keeping the real life issues in mind.

Would you give some piece of advice for all the students who are interested in Arbitration? What should they do in order to succeed in this area of law?

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Kaira: I don't believe that I am worthy of sharing success tips on arbitration at this point of time, but whatever I could gather from my interaction with practitioners in this field is that arbitration runs on the principle of commercial feasibility. More than your knowledge of the technicalities in the law, it is your understanding of the commercial interests of the parties at hand that is required at the table. Unlike litigation, wherein you can get away with disregarding the interests of the other party, arbitrators prefer counsels who do not hurl accusations at the other party but try negotiating and settling a deal which respects both sides of the issue and ensures a smooth and long-standing relation between the parties.

Why should law students participate the Willem C. Vis International Commercial Arbitration Moot? What inspiration and learning does the Moot Court Competition signify according to you?

Kaira: I feel that the Willem C Vis International Commercial Arbitration Moois a different kind of moot. There are no national rounds and the teams can directly go to Vienna for the competition. There are various pre-moots organised all across the world in which the teams can participate. The law which was the Convention on International Sale of Goods, I felt was very interesting. As a law student you get to understand how parties negotiate with each other during a transaction and how they are willing to balance each other out with their rights and obligations. The moot itself is a very big learning experience as mooters learn how to think on their feet. The arguements may change after every round because of the feedback and the counters presented by the opposing teams. I feel it is a continuous process of streamlining your arguments round after round which we don't really see in many moots.

What drove you to participate in the Vis Commercial Arbitration Moot?

Kaira: I think one of the major factors that drove our team to participate in the Vis Commercial Arbitration moot was that it is one of the biggest moots in the world, being one of the prestigious grand slam moot court competitions. Our academic interest in International Commercial Arbitration further played a role in choosing the moot.

What were the main challenges that you had to face?

Kaira: Participating in a competition of this stature is definitely a challenging process. I think one of the challenges we faced was balancing the moot with our other academic engagements. Furthermore, we were all not present at the same place during the entire process, due to holidays, which was again a challenge. The shift to an online means was another significant challenge that we faced, since it presented its own set of problems and technicalities.

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What are your future plans regarding international commercial law and arbitration? Do you consider a future career in commercial law?

Kaira: Given that our team consists of 2nd years primarily, we have not yet arrived at any definite decisions with respect to our future plans of a career in international arbitration or commercial law per se. The Vis moot provided us with an opportunity to explore new aspects of a field that we all shared a passion for, which is an experience that we are immensely grateful for. It has also encouraged us to take up internships, and research papers, which are based on the field of arbitration. Thus, although all of us are definitely considering potentially working in the field of arbitration or commercial law, we haven't ruled out other avenues that we are yet to explore during law school.

Did the competition play any role in taking this decision? How these competitions help to you for your interest in this field?

Kaira: The Vis moot has definitely played an integral role in fueling a spirit for research in the field of arbitration and the CISG. It has not just helped us hone our mooting and research skills, but has also encouraged us to explore a field of law that would have otherwise been rather foreign to us. And the experience that we are most grateful to the moot for was the opportunity to present our arguments immensely esteemed arbitrators , and to receive feedback from legal luminaries such as Professor Jeffrey Waincymer himself! The moot provided us not only with a crucial skill-set, but also some unforgettable memories.

What was your joyful and poignant moment in the moot?

Kaira: The most joyful moment of this moot, was I think the moment we broke to the round of 32. We had faced Professor Jeffrey Waincymer as one of the arbitrators in the round of 64 and it was very intense round. We were quite unsure of the result and getting to know that we had broken to the next round was quite a joyful surprise. Other than that, the moment the result of the final rounds was announced, was definitely a cloud-nine moment for us all.

What was the most significant personal challenge or sacrifice that you had to make in order to maintain your good grades and high academic performance?

Kaira: I believe a balance can and should be maintained between your professional and personal life. All of us have our set of commitments, be it professional or personal. As for me, prioritising the 'ought tos' over the 'want tos' is very crucial. Missing a few outings and not binge-watching shows, were certain basic habits we had

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to let go of during the months right before the moot. Other than that, I believe organised and planned working ensures you can have a joyful work experience.

It is said that the success is not by chance, it takes a whole lot of perseverance and a goal. Could you tell us how you prepared for this competition, from the very start until the last round?

Kaira: We started work the moment we got allotted the moot. We read up on the basic commentaries for both the arbitration as well as the merits issues. When the problem got released we were all in our homes or internships. We researched at our homes and did group calls to discuss and deliberate on the issues. When college reopened, we had exams and we started drafting the memorial right after exams ended. The second submission went much more smoothly as we could identify the pitfalls we fell in and thus was much more efficient. Speaking practice we started earnestly in february with our seniors. We participated in the pre-moot organised

by Jindal University which opened us up to new arguments and counters. Then because of the pandemic, the moot got cancelled and we left for our homes. We still did speaking practices online and also did practices with teams from other countries. When the actual competition started, we used to call each other up after each round and used to discuss the arguements we used and how we could have better answered the judge's queries. We were together in our happiness after we got through every round.

Were there any challenges while gearing up for this particular moot?

Kaira: There were no major challenges as such. As all of us were from the 2nd as well as the first year we could connect easily with each other. We divided ourself up into smaller teams of 2 so that we could research on one part of the law exclusively. I felt that once we found our rhythm we had no problems in working. We did face some very small hiccups but that comes part and parcel in doing a moot. I say that a challenge we faced as a team was when we learned that we couldn't travel to Europe. But that was also easily discussed and we felt that it was better that we didn't go. It was a great team where each of us played to out strengths and we could work extremely well with each other.

Any advice you would like to give to the other mooters or students who may wish to follow your example?

Kaira: I think the advice that we could give is to be consistent throughout your preparation for the moot, by constantly engaging with the problem and not leaving anything for the last minute. Presentation is crucial, and it is important to speak at a steady pace, with clarity and utmost simplicity so that the judges of the moot can understand everything they hear. Moreover, it is important to always keep adapting

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your speeches and learn to work on even minor errors. In a moot like Vis, where the core arguments made by teams remain very similar, it is important to aim for perfection in every aspect of your oral presentation. It is equally important to try and prepare a comprehensive list of questions that could be asked in the moot and try to prepare answers for the same.

How was your experience in mooting during the COVID19 times using online means?

Kaira: Even though the moot being conducted through online means presented its own set of problems, our experience of the moot overall was extremely positive. In my opinion, once one gets past the technical glitches and logistical issues, online mooting can in fact be an extremely convenient means to conduct such an activity.

However, I think we all would still prefer a physical moot due to the overall experience of such an event that goes beyond just the actual court proceedings.

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13 Testimonials of the Winners of the Philip C. Jessup International Law Moot Court Competition, National Rounds – India, 2020 Interviewed by Udomo Ali, Managing Editor, Africa, SAJIL

Introduction Vishesh Bhatia, Vishaka Ramesh, Priyamvadha Shivaji and Pranay Maladi won the Indian National Rounds of the Philip C. Jessup International Law Moot Court Competition, 2020. Mr. Maladi was interviewed following the release of the results of the competition.

Questions Asked Each year the Jessup problem puts forth cutting edge, avant-garde and mostly unresolved legal challenges to its participants. How has your legal studies, particularly the knowledge of international law helped you in demystifying the

Compromis?

P. Maladi: It’s important to know the basics of international law thoroughly. Without that, one wouldn’t be able to appreciate the nuances of the moot problem. We had prepared well for about a couple of months, so our knowledge of basics of international law helped us see what the issue at hand was quite clearly.

The 2020 Compromis involved among other issues the cultivation, processing and export of the Helian Hyacinth grown in the Crosinia region. Can you elaborate on the legal issues of the Jessup problem and how did you prepare for it including the collection the reading materials?

P. Maladi: There were 4 legal issues, one was that of jurisdiction of the court and the other three were largely substantive claims. They touched upon state-succession, legality of automated weapons, parallel and competing jurisdiction of tribu-nals under international law, and accountability of incumbent heads of states under international criminal law. While issues were heavy and complex, they were quite fun to read into. I worked on primarily the fourth issue (accountability of heads of state) and touched upon areas of third issue. It’s important to be thorough with the basics of the area, mainly the relevant treaties and customary law, of that particular

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issue before doing any specific research. As far as collection of reading materials is concerned, it’s the same as any legal research. You try to be as comprehensive as possible while searching for literature on the subject, but it’s always important to know when to stop, compile your reading, and analyse.

What is your view on the fate of international law and the world order after your participation to this competition or after the research and the process that you had to go through?

P. Maladi: I believe I am really not qualified to comment on the fate of international law and the world order. All I can say is that I have been able to appreciate the nuances of international law, specifically in a tricky area such as immunities of incumbent heads of state and ministers, and how complex and multilayered it is.

Did you find the Moot Problem coherent to the current challenges related to Public International Law, International Trade Law and International Criminal Law? Why? P. Maladi: Yes, very much so. The issues had obvious connections to current events in international law, specifically the Al Bashir trial at the ICC and Qatar v. UAE on the question of lis alibi pendens. The problem touched upon these questions and expected us to be thorough with these judgements.

Why should law students participate in the Jessup Competition?

P. Maladi: It’s the oldest and the most prestigious of moots. The process of preparation, if approached correctly, gives you good knowledge of quite a few areas international law. And more importantly, the experience of Jessup, albeit challenging, can be very enjoyable. So it’s something that a lot of law students would want to do.

What advice would you give to subsequent participants of the Philip C. Jessup Competition and how best to tackle the Jessup problem and preparation.

P. Maladi: Be thorough with your knowledge of international law. Read the moot problem multiple times; you discover new legal issues or nuances. Try to be as comprehensive as possible in your research but at the same time, it’s crucial that you are not lost in reading to an extent where you compromise on drafting. So try to strike the balance. Most importantly, try to enjoy the process.

What was the most significant personal challenge or sacrifice that you had to make in order to maintain your good grades and high academic performance whilst preparing for the Jessup competition?

P. Maladi: The biggest challenge was to stick to the same routine of preparation. I wouldn’t say I sacrificed anything.

The fact that the Jessup has been sponsored by some of the biggest law firms in the world is highly indicative of the skills required for the competition and its perceived status. What professional skills did you acquire from participating in the Jessup competition?

P. Maladi: As a researcher, I’d say, two of the most important professional skills are legal research and drafting.

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What were the main challenges that you encountered while preparing for the competition?

P. Maladi: Sticking to the same routine of preparation, maintaining grades, and sometimes running into paywalls while researching.

Jessup not only brings teams and universities from all over the world to the same place, it actually brings people together. How were you able to harness this platform to build sustainable connections?

P. Maladi: Interacting with competitors, particularly in the knock out rounds.

What are your future plans regarding international law? Do you consider a future career in public international law?

P. Maladi: Perhaps but I haven’t given it a lot of thought.

Did the competition play any role in taking this decision and how?

P. Maladi: Yes, as someone who did the moot in the 2nd year of law school, Jessup has been my introduction to international law, and it’s only because of Jessup that I have cultivated an interest in the area.

What was your joyful and poignant moment in the moot?

P. Maladi: Winning the quarter finals, and qualifying for world rounds. You can’t do Jessup alone. There is a reason why the Jessup rules do not permit a one-manshow whereby a single team member comprises of the team. How has working in a team for the Jessup helped you personally in team management?

It’s impossible to do Jessup by yourself. Working with the team over the course of so many months did teach me a lot of things, such as the importance of planning and strategy.

Every year ILSA looks for members to join its ranks as advisors, coaches, administrators, volunteers, memorial graders, Compromis authors and round judges. Will you put an end to your Jessup experience after this moot year or will love to engage even after in any of the aforementioned roles?

P. Maladi: Maybe not immediately but in the future, I wouldn’t mind judging the competition. The Competition is built so as to enable participants to dedicate a substantive amount of time for such autodidactic research. Starting from the moment the case was released in September until January 2020 when the written memorials will be due (and thereafter until the regional and national rounds), teams and competitors work thoroughly and mostly independently on mastering the law.

Could you tell us how you prepared for this competition, from the very start until the last round?

P. Maladi: The first few months until the moot problem was out was dedicated to basics of international law. A month into the problem being released, we, after clearing our University’s internal rounds, started working on it. If the submission of the memorial is in mid-January, most of the research should be completed by end of December. So until December ending, it was research and drafting the memorial, which was then revised until mid-January. After that the speakers start preparation for oral rounds and the researchers assist them.

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Jessup is all about the research and thankfully ILSA releases at least 2 batches of research materials to aid participants. Were there any challenges in accessing additional research materials while gearing up for this particular moot?

P. Maladi: To some extent, yes. The batches of research material released by ILSA are quite basic and are only meant to give initial direction to your research. I did run in to some paywalls, for instance, when researching over the jurisprudence of NAFTA and some other trade law adjudicative bodies on “essential security interests�. But ILSA also gives you access to Oxford e-resources which helps a lot.

How was your experience in mooting during the COVID19 times using online means?

P. Maladi: The international rounds of the moot were cancelled, so I did not experience them.

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14 Testimonials of the Winners of the John H. Jackson Moot Court Competition, 2020 Interviewed by Abhivardhan, Editor in Chief, SAJIL

Introduction Sharnam Vaswani, Urshila Samant, Niyati Karia & Drasti Gala, students from Government Law College, Mumbai was interviewed after the results of the John H Jackson Moot Court Competition, 2020 were released.

Questions Asked Each year the moot problem of the John H. Jackson Moot Court Competition puts forth cutting edge, avant-garde and mostly unresolved legal challenges to its participants. How has your legal studies, particularly the knowledge of international trade and economic law helped you in demystifying the Compromis?

Urshila Samant: We took up the JHJMCC at the very start of our 3rd year and 2nd year for one of us, so our curriculum had not yet exposed us to international law, let alone trade and economic law. However the internal elimination through which we got the moot was based on trade law which was where our first tryst with the subject began. All of us found the area wildly interesting and so decided to invest the better part of one year in doing this Moot. As for general legal studies, naturally having done moots before, we had a fair idea of how to approach a Moot Problem, yet nothing could have prepared us for the various layers this Problem offered and the nuances of each word and the meaning and implications it carried. In fact, there were things we were discovering in the Problem up-to a week before oral pleadings!

How would you like to enumerate about the 2020 Compromis for this year’s moot and its relatable connect with the current problems in the international

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community? Can you elaborate on the legal issues of the Compromis and how did you prepare for it including the collection of reading materials?

Urshila Samant: This year’s problem was an amalgamation of the very niche Agreement on Sanitary and Phytosanitary Measures (SPS Agreement) and the General Agreement on Tariffs and Trade, 1994. (GATT). It centered around the change in legal obligations of a country vis-a-vis members of a Regional Trade Agreement of which it was itself a former Member. So a natural nexus can be drawn to the very pressing Brexit issue with a focus on the various avenues for trade liberalization primarily of non-tariff barriers to trade with sanitary objectives. This is especially relevant in today’s international playing field since Brexit and the lack of a holistic exit deal has been making headlines for a while. Furthermore, Sanitary objectives are a subject of state sovereignty. So, to balance trade liberalization, while negotiating complex deals to lessen the collapse of established trust and simultaneously maintaining sanitary/food safety levels of is an understandably mammoth task, of which we got a glimpse through this Moot. Although the problem drafter could not have predicted Covid-1, the SPS agreement is paramount now more than ever.

As for reading materials, a highlight of the Moot Proposition is that it actually provides a suggested References including WTO Reports and Academic papers. So you are essentially set on the right path from the very beginning which is a huge benefit since it filters out a lot of the initial shooting in the dark that a moot involves especially one in a field as niche yet vast as Trade Law. Add to that the fact that WTO Reports are all freely available on the WTO website, and you are given a secure starting point. Later of-course, it depends on the train of thought or line of arguments you choose that would determine further reading.

What is your view on the fate of international trade law, the WTO system and the world order after your participation to this competition or after the research and the process that you had to go through?

Sharnam Vaswani: With the terms of two out of the three remaining Members of the Appellate Body having ended in December last year, the fate of the WTO Dispute Settlement System seems to be in animated suspension. Even the 12th Ministerial Conference scheduled for June 2020 which might have provided some clarity on the crisis was cancelled owing to COVID-19. The primary reasons for this impasse are concerns with respect to judicial activism and non-adherence to timelines by the Appellate Body along with de facto application of the doctrine of stare decisis in dispute settlement by treating previous reports as precedents. The most viable solution to break the deadlock in our view is the Walker Principles devised by General Council Chair, David Walker. They have been endorsed by legal scholars including former Appellate Body Member, Prof. Jennifer Hillman and they recommend abiding more strictly by rules as they were laid down in 1995 through strict deadlines, not relying on previous reports as precedents and fixed terms for the Appellate Body Secretariat members. Alternate means of dispute resolution such as

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arbitration and mediation provided for in the DSU may become more commonplace.

Did you find the Moot Problem coherent to the current challenges related to International Trade and Economic Law, World Trade Organization Law and other economic rules? Why? Urshila Samant: Yes, certainly. The problem was heavily inspired by UK’s exit from the EU, a Customs Union. Trade within Regional Trade Agreements (RTA’s) is liberalized not only on tariffs and duties but also on non-tariff barriers to trade. The 2020 Problem considered non-tariff barriers of a sanitary nature, inter alia food safety regulations. These are often based on pre-established trust and confidence in the systems of member states. Understandably, trust is not quantifiable and that therefore lead to several interesting questions such as whether leaving a free trade area while maintaining the same substantive laws and regulations would affect the pre-established trust element, and the legal provisions to that end. This is closely linked to the challenges arising out of Brexit and the various alternatives for an exit deal, eg. UK-EU FTA, Mutual recognition Agreements, etc.

Why should law students participate in the John H. Jackson Moot Court Competition and how is it special? What advice would you give to subsequent participants of the John H. Jackson Moot Court Competition and how best to tackle the Jessup problem and preparation?

Sharnam Vaswani: There are two particularly pertinent reasons for any considering this Moot to dive in headfirst without reservation: First, the Trade Law community is rather close-knit and most titans of this community are involved in some way with the John H. Jackson Moot. It provides the perfect avenue for anyone interested in trade law to get their foot in the door. Second, apart from its stellar reputation, the Moot is a fantastic opportunity to learn about the area of law by working on the masterfully crafted Moot problem based on relevant current issues in trade. Third, the institutional support provided by the WTO itself and premier law firms in the field makes for a very rewarding Mooting experience. It is extremely gratifying to make arguments you’ve worked so hard on before the absolute best in the business and have your mettle validated.

Our advice to subsequent participants is primarily to keep in mind that the JHJMCC is a serious, long-term commitment. Upon signing up, it is important to plan the next 8-10 months carefully and to strike a reasonable balance between the Moot, internships, and schoolwork. It is also crucial to get in touch with people who specialize in the subject matter. We spent hours looking for people with expertise in trade law, sent countless emails asking for guidance whether for our memorials or for oral practices and several of them never got back to us. Those who did, however, provided us with invaluable insight all of which ultimately contributed to shaping our arguments. It is worth mentioning that research work does not

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end after memorial submission. This is because there may be a significant period between written submissions and oral pleadings and the latter can exceed the scope of the former. Personally, we have had to overhaul some of our arguments overnight during the days of the Moot. Getting creative with arguments can pay off provided you are sure of them and tread with caution. Finally, working together on all arguments is a good strategy to ensure consistent cohesive arguments and demonstrate teamwork.

What was the most significant personal challenge or sacrifice that you had to make in order to maintain your good grades and high academic performance whilst preparing for the Jessup competition? What were the main challenges that you encountered while preparing for the competition? How was your experience in mooting during the COVID-19 times using online means?

Drasti Gala: The journey was not easy, far from it actually. I believe all of us said good bye to our personal and social lives for a while, luckily our families and friends were more than supportive and understanding and we are grateful for them. As luck would have it, our Written Submission deadline was clashing with our term-end exams with no extension on the deadline. So all four of us were juggling between exam preparation and writing and re-writing drafts to make sure the memorial would be complete in time. In fact we brought in our new year working on the memorial as well.

As far as challenges with respect to oral pleadings go, we faced one we never thought we would have to- a pandemic that caused the entire world to shut down.

Initially we were all disheartened that we wouldn’t physically be able to go to Bangkok (where the regional rounds were scheduled to take place) or Geneva (where the final rounds were scheduled to take place) because one of the biggest parts of this journey is the chance to be able to meet and network with the finest in the field.

However, we had put so much time and effort into preparing that the fact that it was happening at all was a great consolation. I think the biggest challenge was definitely not being able to prep together under one roof. We had to resort to constant video and voice calls and updating on Whatsapp to ensure that all of us were on the same page. Even doing the rounds virtually was something that took some time to get used to, but on the bright side it opened up a world of opportunities for us in terms of the people we could contact to take our practice rounds from all over. All in all, we didn’t expect that we’d have to face all this when we started off, but after facing it I think it is safe to say that the whole experience has changed us all for the better and reinstated the belief that there is always a way around.

The fact that the John H. Jackson Moot Court Competition has been supported by the World Trade Organization is highly indicative of the skills required for the competition and its perceived status. What professional skills did you acquire from participating in the competition?

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Urshila Samant: The WTO’s support definitely raises the stakes significantly. It also exposes participants to the gold standard of practice in this field, in terms of research, analytical skills as well as presentation skills. The nature of Dispute Settlement in the WTO is unlike domestic courts and lawyers typically plead before Panels of Experts. Consequently, the style of pleading is more conversational and less argumentative. Since the primary objective of the Dispute Settlement mechanism is mutually agreeable solutions, a more solution-oriented approach is preferred as opposed to hammering down an argument that isn’t followed by a rational conclusion. Furthermore, the online format of this edition of the competition taught us to read the Panel despite not being physically present in the same room as them. Another important skill, especially in the latter stages of the competition was to inculcate the ability to engage in discussions on questions of law that have no right or wrong answer, which often has the ability to throw you off.

How were you able to harness this platform to build sustainable connections in the moot court competition?

Niyati Karia: We were honored to have presented our submissions in front of the leading trade law experts in the field, which gave us an excellent opportunity to interact with them. We would have definitely preferred to physically have been in Geneva to be able to personally meet and engage with everyone. Despite that, the trade law community as a whole has given us an extremely warm welcome and we are looking forward to someday engage with everyone in person.

What are your future plans regarding international law? Do you consider a future career in international trade/economic law? Did the competition play any role in taking this decision and how?

Urshila Samant: Spending so much of the last one year immersed in the world of International Trade Law has naturally had its effect on us. I think it is safe to say that each of us has developed a keen interest and intrigue for the field and would seriously consider pursuing trade law as a career. The competition itself played the biggest role since it has opened our eyes to this otherwise very niche area of legal practice. ELSA International organized a day long virtual sponsor’s fair where universities, firms and members of the WTO Secretariat themselves made presentations on their individual spheres of involvement which proved extremely insightful.

In fact most people who practice in this field have begun their journey participating in the JHJMCC. No matter what path our individual careers eventually take, suffice to say that each of us will certainly be involved in the world of trade law in whatever capacity we can!

What was your most joyful and poignant moment in the moot?

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Drasti Gala: The whole experience, from start to finish, was something that none of us will forget. A large part of the “joy” of working as a team on a moot was taken away since we couldn’t meet for the entire duration leading up to the Oral Pleading Rounds. We adapted and persevered so the cherry on the cake was definitely the moment we were pronounced winners. It was heartening to see the efforts of several months lead to the result that we had always dreamt of.

You can’t do moots like the John H. Jackson Moot Court Competition alone.

There is a reason why the rules do not permit a one-man-show whereby a single team member comprises of the team. How has working in a team for the moot helped you personally in team management?

Sharnam Vaswani: All four of us had very different working styles and working hours so collaborating on this Moot has really taught us how to adapt to and appreciate different work ethics. In a COVID-19 setting, our teamwork was put through rigorous testing. We could not meet in person at all through the entire duration of Regionals and Worlds. Working remotely was a challenge but we learned that it is a myth that a team needs to meet regularly to collaborate effectively. If you devise a system, work according to plan, respect deadlines, develop mutual trust and communicate effectively there is no need to be in the same place at the same time. Capitalizing on the technological tools available in these unprecedented times is crucial to maintain and improve efficiency. The lockdown and pressure of the Moot impacted us in different ways and mutual consideration and respect for one another’s personal struggles was necessary keep up the team morale.

International Law Student Associations look for members to join its ranks as advisors, coaches, administrators, volunteers, memorial graders, Compromis authors and round judges. Would you like to render support to student aspirants, who are interested in the moot courts like John H. Jackson Moot Court Competition and even for that matter, Phillip C. Jessup Moot court competition, for example after this moot year or will love to engage even after in any of the aforementioned roles?

Niyati Karia: Absolutely, all of us are definitely in agreement with the fact that our coaches played a vital role in the entire process. It makes a huge difference when someone who has already been through the experience of the Moot that you are participating in guides you. Particularly with the John H. Jackson Moot, there are a certain aspects that are unique to only this Moot and the only way we could figure these minute but important details out was through our coaches. We would love to coach and advise any future teams participating from the John H. Jackson Moot Court Competition.

The Competition is built so as to enable participants to dedicate a substantive amount of time for such autodidactic research. Starting from the moment when

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the case was released until when the written memorials will be due (and thereafter until the regional and national rounds), teams and competitors work thoroughly and mostly independently on mastering the law. Could you tell us how you prepared for this competition, from the very start until the last round?

Drasti Gala: The competition does require a lot of research from start to finish, including in the duration after Written Submissions and before Oral Pleadings. A key point is that the Competition is structured in a manner where neither the Panel nor the opposing team is provided a copy of the Written Submissions. This is relevant since a team is no longer restricted strictly to the same arguments it put forth in their Written Submissions and allows for teams to accommodate additional research and modified arguments. So a team has the opportunity to either really make the argument that they have in their Written Submissions airtight for the oral round or run a new/modified tangent that they have researched subsequently. This involves reading a lot of previous case reports, academic papers by scholars on debated positions of law, running the argument enough times to ensure that every hole is plugged from both sides. Since policy is an important component of trade law, preparing just for relevant parts of the law based on the facts of the case will not be enough, especially in later stages of the competition. The moot aims at engagement on topics that are a bone of contention in trade law, inculcating the ability to discuss these topics with Panelists while maintaining your stance and justifying your reasons for believing it to be the approach that must be adopted.

What do you think about the back-end support rendered by the organizers of the John H. Jackson Moot Court Competition with regards to research materials related to the moot, like certain international moots do provide? Were there any challenges in accessing additional research materials while gearing up for this particular moot?

Sharnam Vaswani: What we appreciate in Trade Law as a subject is that it is rather egalitarian in terms of access. The WTO website is an all-access repository of not only the dispute settlement reports but also various other resources that explain the WTO Agreements and document the work done by its different subsidiary bodies. The JHJMCC proposition itself contains a suggested References of articles and papers that serve as starting point for argument building. Personally, we faced occasional challenges accessing certain resources because GLC’s institutional access in terms of trade law is not as advanced as what is, perhaps, available in other universities but it was nothing we could not overcome.

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Book Reviews

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15 Review of Has China Won? The Chinese Challenge to American Primacy by Kishore Mahbubani Pratham Sharma Research Member, Internationalism

Akash Manwani Research Analyst, Internationalism

The most interesting topic of discussion in terms of International geo-politics is the Sino-American relationship and the future of this riveting connection. Mr Kishore Mahbubani has explored the dynamics of this relationship extensively through his book ‘Has China Won?’ Mr Mahbubani is a distinguished fellow at the National University of Singapore. He has had a magnificent career as a diplomat and has followed it up with a successful career as an academician. He has served as the Ambassador to the UN of Singapore for over ten years. Owing to his vast experience of the diplomatic world, he has been a witness to the changing dynamics of International politics. “If the contest between America and China is a contest between a healthy and flexible democracy and a rigid and inflexible communist party system, then America will prevail. However, if the contest is one between a rigid and inflexible plutocracy and a supple and flexible meritocratic political system, China will win”. This quote from the book sums up the point that the author has attempted to communicate.

The focus of the book is on the development of China and United States with a view to find possible spheres of contest in future. The book introduces the theme with the help of ten big questions which according to the author are crucial from the viewpoint of thinking the ‘unthinkable’ and raising the right questions. The author proposes questions primarily to the west for careful consideration prior to making any major policy decisions with respect to china in the near future. One of the most important questions that author puts forward is to the supremacy of American economy in the world keeping in mind the rapidly growing Chinese economy. This question becomes even more relevant when Americans themselves make statements in support of Chinese economy outgrowing the American economy.

Elon Musk made a statement where he stressed out the call for innovation in United

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States as an urgent need of the hour to maintain its competitive edge with Chinese economy.

The author also raised a pertinent question about the defence expenditure of the United States and the need to reduce the same. The example of Soviet Union bankrupting themselves due to heavy expenditures on defence was pointed out, while stressing the need for reduction in defence expenditure. The author has suggested that the Chinese have learnt from the mistakes made during Cold war by the Soviets and have restrained their expenditure on defence and focused on economic development. Is it feasible for the United States to continue investing heavily in their defence budget? Or is it better to focus on rejuvenating the social and national infrastructure. The author further questions the American diplomatic culture in the past few years. The victory in the cold war was not achieved on its own but on the back of a successful coalition with other important allies. NATO and the improved relations with countries like Egypt, China, Pakistan and Indonesia were crucial in the victory of the west over the Soviets. The trump administration has announced an America first policy which won’t do much good to the prospects of similar alliances against the Chinese. In addition to the policy change, the back out from the Trans-Pacific partnership is a blunder for Americans and a gift to the Chinese in terms of geo-politics. On the contrary, China has been fostering relationships with other countries. It has been successful in attracting support for its Belt and Road initiative.

The author has tried to suggest that United States have been more unilateralist than China in the recent past and edges even closer to unilateralism while China is focused on Multilateralism. It is interesting to note that both countries have exchanged roles in terms of the approach towards multilateralism. This shows that the Chinese have learnt from the west and have continued to take strides in fulfilling their goals by incorporating the good practices of the west.

The question of US Dollar is also an important one to be addressed. US Dollar serves as the most powerful weapon for the Americans to get its allies in line. It has been considered indispensable to global trade by many including the Americans.

The Americans have exercised extra territorial application of their domestic laws using dollar. This can be understood from the example of Standard Chartered (a British bank). US had levied fine on Standard Chartered for using dollar in a transaction with Iran, which is against the sanctions levied against Iran by United States.

Standard Chartered has not violated any Security Council resolutions but still the Americans have used the dollar to their political advantage. The author has suggested that this might become a problem for the Americans considering their close allies have started to find an alternative way to deal with transactions related to Iran. The advent of INSTEX poses a threat to the supremacy of US dollar and its indispensable status. The author has suggested the Americans to stop using dollar for such small political goals and focus on the long term goals.

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The author has also discussed the major mistake made by both Chinese and Americans while dealing with the other. While the Chinese have isolated the American business community to an extent that Trump’s aggression towards China received bipartisan support in United States. When China was to be removed from the Most Favoured Nations category, Boeing and other important business had lobbied against it heavily. However, there has been no advocacy for Chinese this time and Trump has surprisingly received no opposition. The author has brought it down to Chinese non-tariff trade barriers like mandatory technology transfer. On the other hand, America’s strategic mistake according to the author is to engage with China without a comprehensive long term strategy. The author also suggests that the Americans have underestimated the Chinese society and taken success for granted. This according to the author is a mistake similar to what the Soviet Union made.

The Americans treat the contest with china as a ideological conflict, however, the Chinese do not challenge the American ideology as the Soviets did. Treating the threat of China on the same scale as the Soviet Union is the biggest mistake United States could commit according to the author. The Chinese are not strictly communist or their ideas are not rooted in communism but rather the Chinese civilization. America makes a fundamental error in considering China as strictly communist considering the Chinese have shown a more pragmatic approach. The Chinese have learnt from the West and adopted their best practices in an attempt to outplay them at this geo-political contest. China follows “Socialism with Chinese characteristics” and not the traditional socialist ideals. It is clear that China has learnt form the many mistakes made by the Soviets and have addressed them in their governance today. President Xi Jinping has introduced his own approach titled as the Xi Jinping thought which has Socialism with Chinese characteristics at its core.

The author mentions that the many characteristics that were seen in the American governance at its peak is now part of the Chinese set up. The American society also prides on being rational and pragmatic. However, in the recent past, it is the Chinese who have looked more rational in their approach towards national and international affairs. While America tries to portray China as this Evil actor who is expansionist and authoritarian, China has given evidence to the contrary. The Americans have tried to depict China as a threat to democracies in general. However, countries like India and Indonesia who are two of the three largest democracies of the world have not felt threatened by Chinese ideology in the same way as the Americans. It seems like America is making the mistake of fighting tomorrow’s war with yesterday’s strategies. It is clear and evident that Americans have largely failed in creating the evil image of China as the threat to democracies in generally.

The next half of the book packs interesting propositions about notions held by early westerners that China might adopt democracy and liberalism once exposed to the ‘American dream’ and the wealth possessed by the West. It did take some time for this dream to get shattered when China removed term limits for presidency

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(Buckley, 2018). The ‘China problem’ did not just pop-up out of nothingness, it is a result of gradual and consistent unwrapping of China’s stance in the recent years.

Most well renowned Chinese strategist Sun Tzu’s famous work ‘Art of War’ narrates the importance of subtlety being the foremost requisite against an enemy and one which has been the cornerstone of Chinese diplomatic efforts since the WWII. Even the author agrees that China has adequately followed Sun Tzu’s principles to win diplomatically - ‘Be extremely subtle, even to the point of formlessness’, ‘Keep your friends close, and your enemies closer’, ‘Subdue the enemy without fighting’ (Jackson, 2014).

Unlike the U.S’s earlier rival, the Soviet Union, Asian giants like China and India have had rich history with flourishing civilizations since 2500 years while it is only from past 250 years that the West has gained primacy and it is not long before the circle will complete its course. Due emphasis should be laid on the fact that strategies which helped the U.S win the Cold War shouldn’t be the strategies to counter the China problem. The Soviet Union drained its resources to the extent of bankruptcy in the arms race during the Cold War and the U.S emerged as the sole superpower (Watkins). China is far more sophisticated, not only in its actions but also in its aims and objects.

The whole theme of the book calls for a better understanding of this new rival who not only has economic leverage but also has geostrategic advantages. Economy-wise, major European economies have been running out of natural ways to generate wealth despite of heavy investments in R&D (Authers, 2019). China on the other hand is acing innovation and supplying in-demand goods. The reason behind exceptional growth of China might be incomprehensible for pro-democratic thinkers who cannot believe that some good can come out evil. The one-party system indeed provided viability for quick decision making and efficiency but then the concerns of balance of power and accountability naturally arises (Leund, 2015). The self-regulating accountability of Chinese is explained through their longing for political stability after years of humiliation, civil disobedience and violence. The developmental nature of China has led to extremely able governance, domestically raising millions from poverty and generating employment for many, in turn inviting huge chunks of foreign investment which ultimately made China, the ‘factory of the world’ (Diallo, 2019). Author has highlighted three global benefits of the Communist Party of China (CPC) rule which should receive due consideration. Consecutively, relationship of the U.S and China with major economies and countries throughout has been dealt with from geostrategic, diplomatic and economic lens.

The author has pierced through the deep-rooted anti-China perception, shared by most of the westerners and has appreciated relevant factors which the Chinese have clung to, in order to achieve this phenomenal growth. In an attempt to have a holistic understanding of the growth of this Asian giant, the author has articulated its success by enumerating its merits in contrast to the demerits of liberal west.

Ultimately, the China problem is not to be eradicated but to be worked with.

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