Blog+

Why Should International Law of Tomorrow be Different From Today?

Nizamuddin Ahmad Siddiqui* & Nithin Ramakrishnan** | Oct. 22. 2020

The following blog-post is a backgrounder to the yearlong Extended Lecture Series beginning October 2020 on ‘Alternative Approaches to International Law’. The Lecture Series is jointly organised by Weeramantry Centre for Peace, Justice and International Law, and Chinmaya Vishwavidyapeeth, Kerala. The first talk will be delivered by Dr. Celine Tan, University of Warwick, UK on the topic – Towards A New Architecture of International Public Finance in the COVID-19 Era on 30 October 2020. In case you find this blog-post relevant and further wish to attend the lecture, please register by clicking here.

Pandemic Grips the World

The onset of the Corona Pandemic since December 2019 has taken the world by surprise. The way the virus spread and the manner in which it impacted the lives of the people is known to everyone. The infection, which started to spread in China soon engulfed the whole world, and by March 2020, the Indian government had to announce a major lockdown throughout the country (see here). While the Coronavirus cases continue to soar and the world engages in finding a cure for it, the lives of people on the ground have been affected much more than we could have imagined. In India alone, the number of cases has drastically gone up and the no. of reported deaths stand more than 114,276 (with more than 7.5 million cases, as of October 18, 2020. See here). The loss of jobs in the informal sector is estimated to be around 119 million while the overall rate of unemployment rose from 8.4% to 23.8% (see here). According to the World Bank estimates, the lockdown from initial phases impacted around 40 million internal migrants in India (see here and here). The UN Secretary-General recently has identified the pandemic as a ‘generational catastrophe’ affecting more than a billion students in 160 countries; with over 300 million school students in India alone (see here). Meanwhile, the Indian government has announced a 20 lakh crore rupee stimulus package for the economy, which comes close to 10% of the GDP (see here and here).

As the pandemic of COVID-19 grips the world there is a huge economic fallout of this White Swan event (and not Black Swan, see here and here). COVID-19 seems to have not only impacted the economy in the short run; its repercussions are expected to be more pronounced in long run as well. The problems highlighted by Harvard Business Review demonstrate that the COVID-19 pandemic has disrupted the entire supply chain; shrunk consumer demand; has led to a large number of job losses; and, has put a heavy burden on medical infrastructure (see here and here). The impact it has made over millions of daily workers, ending them jobless, and triggering their migration across the cities, has been vividly on display across all media sources in India. It seems that the pandemic will impact the small and medium scale industries the most; and, we do not know how much, yet (see here and here).

Gaps in International Law

The COVID-19 pandemic has exposed the existing gaps within the development process. It has posed a loud question that cannot be anymore ignored. In developing countries, where the development is concentrated in city hubs, COVID-19 has proved that the distance between a nearby village to its town is more than the difference between geographically distant cities. It has proved that the call for an ‘internal globalisation’ is long due (see here). Internal migrants walking their homes hundreds of miles away; being arranged in groups with sanitizer sprayed at them from a distance; and of thousands of people gathered on bus stations only to be taken away, remained a normal sight for everyone sitting at home and watching news on television channels (see here, here and here). In a large country like India, by geography and demography, this is not unpredictable. The diffusion of development is a long-drawn process that requires the luxury of time. COVID-19 has delivered the lesson to the global south that it remains a rather unaffordable luxury.

International Law has a big role to play in this context. While it seems that the World Health Organization (WHO) or even the UN General Assembly, much like EU and other agencies have been unable to contain any of these implications, it also remains true that International Law remains our only hope (see Jouannet here; see Koskenniemi’s earlier disagreement here). It is only through the agency of International Law that we could eradicate poverty, apply stringent health regulations, more accessible knowledge systems and above all, better lives and better means of livelihood (see here). However, that does not seem possible in the current state of affairs, especially the way International Law has been structured and applied in its formal make-up. The language in which International Law finds its construction remains contested both in its literary style (see here) as well as in its core constituents (see here and here). 

It has also been debated that International Law is hegemonic. It is argued that the inherent core of International Law, i.e., it’s very sources, remains contested in the language of cultural, ethical and moral domination (see the chapter by Reut Yael Paz here). Moreover, it is also argued that International Law has to a greater extent being hijacked by entities for their interests; having the ability to coerce the system to perform to its tunes through the emergent transnational capitalism (see here). The problematic institutionalization of International Law can also be fathomed from its treatment of subjects like migration and refugee protection from the European context; while tales from the South, specifically the developing world, including South Asia, remain largely unheard (see chapter by B.S. Chimni here).

Utopia of Moving Forward

Indeed, International Law cannot perform to its full potential unless it also incorporates interests and knowledge from the developing part of the world. COVID-19 pandemic is a glaring example of that. Therefore, what has led the WHO (or any other international organization) to underperform does not merely stem from the deeply flawed argumentative structure of the international legal system but also from its systemic flaw and institutional design, and ill-appreciation of the realities about ground-level situations in countries like India. It is also due to self-righteous hypocrisy of the euro-centric knowledge of law and development, assuming altogether that the other parts of the world have nothing to contribute to the normative enrichment of the international law and global order. The British response to the India-South Africa TRIPS waiver request in the context of COVID-19 response at the WTO’s TRIPS Council is the latest example of this difference in the normative systems (See here and here).

It is here that Judge Christopher Gregory Weeramantry’s call in the preface to his treatise Universalizing International Law, becomes ineluctably relevant.

It [International Law] urgently needs to be universalised in regard to its constituency, for it needs the active support of a far wider group than its immediate votaries. It requires a vision that takes in the vast panorama of global cultures, as a source of enrichment of its principal concepts and underlying philosophies. It needs to take in the wisdom of the past and attune itself to the problems of the future. (see here)

International Law cannot fathom the diversity of the societies of the world, nor can it provide access to the promise of global peace and security (with the topping of justice), unless it also incorporates the regional aspirations and imbibes the local necessities of human existence. The diversity of this planet has not merely provided fodder for conflict but also food for prosperity for many centuries now. However, that has been made possible only with the vision of a prosperous future in times of crises such as the present one.

About the Authors

* Nizamuddin Ahmad Siddiqui is Senior Research Fellow and Ph.D. Candidate at Jindal Global Law School, OP Jindal Global University, Haryana, India. ✉ nasiddiqui@jgu.edu.in

** Nithin Ramakrishnan is Assistant Professor of International Law at Chinmaya Vishwavidyapeeth, Kerala, India. ✉nithin.ramakrishnan@cvv.ac.in

For pdf click here

Climate Refugees, Sundarbans and the Dearth of Legal Response

Amit Ghosh* | Sep. 20, 2020

Background

Climate-related displacement and migration is one of the greatest challenges of our era. While there is largely a consensus that global warming impacts us all, its potentiality as the trigger for mass human migration is often ignored. Communities in arid and semi-arid lands, small islands, hilly areas, coastal areas etc. are particularly vulnerable to the effects of climate change. It is estimated, by 2050, there would be over 140 million climate-induced migrants from the regions of Latin America, sub-Saharan Africa, and South-east Asia alone. Not long ago, year 2017 recorded 18.8 million new disaster-related internal displacements, raising the alarm bell for the entire world.

The fact remains that the disadvantaged and ill-equipped communities (both usually go together) bear the maximum brunt. The tragedy is, despite the normative legal framework in place at least cursorily, the issue of climate refugees remains low in the priority list of the international community. It is high time that the matter is given the due recognition, which the seriousness of the situation commands. 

International Legal Matrix

The 1979 World Climate Conference identified climate change as an ‘urgent world problem’. After this, numerous scientific and State-level conferences took place, often led by the United Nations Environment Programme. Those efforts culminated in the adoption of the United Nations Framework Convention on Climate Change (UNFCCC) in the monumental Rio Summit of 1992. However, it lacked the vocabulary to address the social and human rights impact of climate change, including migration. The definition of refugees under Article 1 of the Convention Relating to the Status of Refugees, 1951 considers only ‘persecuted’ people as the beneficiaries of refugee rights. To date, the scope of definition remains unaltered and any other class which is not persecuted remains outside the ambit of the protection offered by the Convention. Oxford English Dictionary does define climate refugees as those who are forced to leave home as a result of the effects of climate change on their environment. But unless a legally recognized definition is evolved, or the pre-existing definition of refugees is expanded to accommodate the new challenges, it would hardly matter for the displaced victims. More recently in 2018, the UN High Commissioner for Refugees’ Global Compact on Refugees was adopted by a substantial majority in the UN General Assembly. It was recognized that:

climate, environmental degradation and natural disasters increasingly interact with the drivers of refugee movements

While it can be called progressive that the issue got formal recognition, the nature of reference in a sixty-page document was rather tokenish and cannot be treated as anything more than a very nominal starting point.

Indian Approach and Sundarbans

India floated the National Action Plan on Climate Change in 2008 covering aspects related to the ‘socio-economic impacts of climate change including the impact on health, demography, migration patterns and livelihoods of coastal communities’. But the reference to migration in the plan primarily dealt with non-human species and the whole policy, in any case, was never supplemented by an enforcing law. Unfortunately, the socio-economic human impact of climate change continues to be an underexplored field for the policymakers in India.

On Sagar Island lying on the continental shelf of Bay of Bengal, several climatic changes are already visible and are expected to worsen. In more than a hundred islands constituting the Indian Sundarbans (UNESCO designated World Heritage Site with a population of 4.5 million), Sagar Island is the largest in Sundarbans and most populated with more than two lakh inhabitants.

The map below sourced from the website of National Geographic captures the geography of the region well enough to give an exact idea of its complex contours:

Belonging to the world’s largest delta region (also spanning up to India’s neighbour Bangladesh), Sagar has become a hotspot for environmental scientists and researchers willing to explore what India’s climatic future in this region may behold. Extreme temperatures, changes in rainfall, the incidence of extreme weather events, and sea-level rise are all expected to increase.

More than 20 percent of India’s populations live within 31 miles of the same coastline of which Sagar is a part. By 2100, the sea-level in the region is projected to increase between 1.3-2 feet, and temperature 2.6 to 4.8 degrees. Sagar is resource deficient and further shifts in climate are likely to affect the Indian population similar to people of Bangladesh where instances of migrating shrimp farmers from coasts to cities due to an altered unfavourable climate are already recorded in large numbers.

Last year 5 million citizens were displaced in India due to natural disasters. Ghoramara, an island near to Sagar is already sinking and the reports are available to show how migration from Ghoramara to Sagar will put the pressure on grappling public utilities and the overall economy of the region. In most cases, boats with migrants predominantly comprise women because men are already out searching for jobs. In the past 25 years, four islands of Sundarbans have disappeared, creating many climate refugees.

Clearly, the threat is very real and needs immediate action. Peripheral dwellers on these islands are particularly affected and are constantly forced to move every year after their lands get usurped by rising water. Bhora Kotal (or high tides) is the biggest fear phrase for the local population. They are constantly insecure and know that if things keep moving like this, their days in the ancestral homeland are numbered. Particularly when the domestic legal framework appears reluctant to traverse anywhere beyond ‘disaster management‘, the prospects of getting the right kind of cushioning from State get bleak.

Conclusion

Sundarbans like stories are not unique. The first application that can be considered as coming from climate refugees in the modern sense was recorded in 2014 when a family from the South Pacific island of Kiribati sought refuge in New Zealand. Their island nation had disappeared into the sea and they had no other place to go.

It is now widely argued and accepted that climate-based migration has the potential of serious socio-legal, economic and political impacts. Therefore, till the moment the international community wakes up to the reality that such instances of migration are becoming graver and more frequent, it will be impossible to cope up with the challenges that the future may roll out for the disadvantaged and the non-elites. The 2030 Sustainable Development Goals’ commitment to ‘leave no one behind’ will be extremely difficult to be realized in tangible terms, especially when it is about the helplessness of the climate victims.

References :

  1. P.S. Jaswal & S. Jolly, Climate Refugees: Challenges and Opportunities for International Law, 55:1 JILI 45 (2013).
  2. Raphaella Mascia, Complications of the Climate Change Narrative within the Lives of Climate Refugees: Slow Causality and Apocalyptic Themes, 22 Consilience 31-38 (2020).
  3. Regina Axelrod et al. (eds.), The Global Environment: Institutions, Ław and Policy (CQ Press, 2005).

*About the Author

The author teaches at Surendranath Law College, Govt of West Bengal, India.

amit.law.ag@gmail.com

For pdf click here

Law of the Sea in Bay of Bengal Cases: Practical Difficulties of Grey Area for the Marine Environment

Moses Raj G S* | Sep. 13, 2020

Background

United Nations Convention on the Law of the Sea (UNCLOS) disproportionately affects the developing world, given the history of colonialism and lack of technological advancement to enter seaward areas beyond national jurisdiction across deep seabed mining, marine scientific research, fisheries governance, ocean pollution, mineral extraction and biodiversity management. The law of the sea jurisprudence is still in its nascent form in South Asia. But because of the size and scope of the Indian Ocean, littoral states in South Asia and their extended relationship with the other Asian States have made UNCLOS an emerging field of inquiry and investigation, albeit, with few experts engaged in the field.

Given the uniqueness of the Bay of Bengal and its concave geographical and geomorphological coast, opposite and adjacent coastal states have the scope to make a separate submission on the outer limits of the continental shelf based on the provisions of the Statement of Understanding contained in Annex II to the Final Act of UNCLOS-III. The regime of outer continental shelf law in the Indian Ocean becomes even more important as states have partially submitted their claims of outer limits of the continental shelf to the Commission on the Limits of Continental Shelf (CLCS), or are in the process of submitting a separate submission, or are contesting the submissions made by adjacent or opposite coastal states.

Complexities of Outer Continental Shelf Regime

The International Court of Justice (ICJ) had stated in Nicaragua v. Colombia that information submitted to the CLCS according to Article 76(8) of UNCLOS will not necessarily be regarded as sufficient to establish the existence of an extended continental shelf. The court had also declared that ‘the definition of the continental shelf as set out in Article 76, paragraph 1, of UNCLOS forms part of customary international law. The area was further complicated by the International Tribunal for the Law of the Sea (ITLOS) in Bay of Bengal cases, which ruled that while the determination of entitlement to an outer continental shelf fell within ITLOS’s jurisdiction, any tasks relating to the identification of the outer limits belonged to the CLCS. However, the tribunal did not explain the evidence that a party seeking to establish an outer continental shelf must present to an international court or tribunal in order to prove its entitlement.

ITLOS further clarified that the delimitation test under Article 83 is based on distance from the coast and not on natural prolongation that is based on geological and geomorphological status. It proposed the innovative idea of  ‘grey area’ by differentiating water-column rights and continental shelf-rights causing practical difficulties of overlapping claims in the Exclusive Economic Zone (EEZ) and the high seas. However, Judge Rao in his partial Dissenting Opinion in Bangladesh/India, opined that ‘the sovereign rights of a coastal State over the water column and the seabed and its subsoil are considered as two indispensable and inseparable parts of the coastal State’s rights in the EEZ’. While UNCLOS is silent when the two overlap, the tribunal too, did not offer any guidance for the States concerned to deal with exercising of rights in the grey area. This is key to understand how tribunals appreciate scientific and technical evidence in contentious cases affecting marine environment at large with the creation of new sites of conflict. 

Practical Difficulties of a ‘Grey Area’

Lan Nguyen, in her Ph.D. thesis submitted to the University of Cambridge raises this conundrum of rights and obligations in a lengthy but critical question:

…supposing Bangladesh placed a mobile oil rig in the waters of Myanmar’s EEZ for the purposes of exploring and exploiting its oil resources in the seabed and the latter alleged that this oil-rig in conducting its activities on the seabed was causing pollution to its waters, would Article 208 relating to pollution from seabed activities or Article 211 relating to pollution from vessels apply? Article 208 meant that Bangladesh would have the jurisdiction over the vessel, while Article 211 would confer jurisdiction on Myanmar in accordance with Article 220. Likewise, India, under Article 60, has the exclusive right and jurisdiction over artificial islands, installations and structure in its EEZ. But supposing that the construction of those structures involved the dredging of the seabed, which damaged the living resources on the continental shelf of Bangladesh, which State would have enforcement power in this case?

International Marine Environment Law and Emerging Dynamics

ITLOS observed in the Southern Bluefin Tuna case that the conservation of living resources of the sea was an element in the protection and preservation of the marine environment. The Seabed Disputes Chamber in the Advisory Opinion on Activities in the Area examined the concept of responsibility and liability while expanding the scope of ‘obligation to ensure’ that the high seas are not exploited arbitrarily. According to the Chamber, responsibility is a primary and liability a secondary obligation, which would get activated upon the breach of the sponsoring State’s obligations towards conservation and management of the marine environment in areas beyond national jurisdiction.

In 2014, the ICJ expounded in Whaling judgment the duty to cooperate with treaty bodies in the conservation of highly migratory species. ITLOS, a year later in its Advisory Opinion on IUU Fishing reiterated that member states without distinction of flag states or coastal states had the general obligation of ‘due diligence’ under Article 192 regarding conservation and of marine living resources that occur both within the EEZ and in an area beyond and adjacent to these zones. Although, it did not specify the measures to be taken to satisfy the due diligence obligation thereby left it open-ended hoping the gap of interpretation will be filled through future state practice and litigation.

However, it was not until Chagos MPA and South China Sea casesthat Annex VII arbitral tribunals were able to deal with the legal rules relating to the protection of the marine environment. Despite the limited number of cases, ITLOS and Annex VII arbitral tribunal decisions have clarified broad operative principles under international environmental law namely: the precautionary principle, the duty to cooperate, the obligation of due diligence and the obligation to conduct an environmental impact assessment.

Misgivings of Exploitation Guidelines on the High Seas

The International Seabed Authority (ISA) has only provided exploration guidelines while awarding mining rights to states. As of 2019, a comprehensive mining code that describes exploitation rules and regulations by the ISA Council in its 25th session has made little progress. To be in conformity with UNCLOS Part XII, Member States of ISA in the negotiations process are emphasising on the incorporation of principles in the Rio Declaration and adoption of Regional Environmental Management Plans including a clear definition of the legal scope of obligations for states and pioneer contractors in the ongoing negotiations. Principles of environment and natural resources law must form the core of exploitation guidelines along with the existing exploration guidelines issued by the ISA. An investigation into the text of the negotiations of ISA should reveal why an attempt to codify exploitation guidelines is facing resistance from the developed States.

The inconsistencies in the law of the sea jurisprudence make it difficult to adopt a streamlined approach towards States’ activities that have considerable ramifications on the marine environment. This is evident in prompt release cases, advisory opinions and contentious cases. As States start deep seabed prospecting, irrespective of the success of their mining activities, the ISA’s exercise of jurisdiction and UNCLOS tribunals’ ability to adjudicate cases due to the lack of exploitation guidelines become restricted. These limitations will exacerbate the disputes in grey areas due to overlapping claims of EEZ and the freedom of the high seas while compromising on the conservation and management of the marine environment.

Conclusion

Grey areas and ocean spaces beyond national jurisdiction should be regulated with effective rules adopted through consensus. It must be ensured that marine resources – active and sedentary species are not disturbed or displaced due to commercial activities. As demonstrated in the Chagos MPA, South China Sea and Bay of Bengal cases, this is crucial in giving a progressive shape to the marine jurisprudence in Global South. To move from a narrow or fragmented interpretation to a more holistic understanding of marine environmental protection allows South Asian littoral States across the Bay of Bengal and the Arabian Sea shape their policies on the sustainable use of marine resources. This progressiveness will hold the South Asian States in good stead while advancing in the areas of maritime trade, hydrocarbon exploration, fisheries and marine scientific research in the Indian Ocean.

References :

  1. O P Sharma, The International Law of the Sea: India and the UN Convention of 1982 (Oxford University Press, 2009).
  2. Outer Limits of the Continental Shelf Beyond 200 Nautical Miles from the Baselines: Submissions to the CLCS by the Republic of India, available at https://www.un.org/Depts/los/clcs_new/submissions_files/submission_ind_48_2009.htm (last accessed 1 September 2020).
  3. Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua v. Colombia) (Preliminary Objections) 17 March 2016
  4. Delimitation of the maritime boundary in the Bay of Bengal (Bangladesh/Myanmar) (Judgment) ITLOS Reports 2012; Bay of Bengal Maritime Boundary Arbitration (Bangladesh/India) (7 July 2014)
  5. Bay of Bengal Maritime Boundary Arbitration (Bangladesh/India) (Award, Concurring and Dissenting Opinion of Dr. P.S. Rao)
  6. Lan Ngoc Nguyen, The Contribution of UNCLOS Dispute Settlement Bodies to the Development of the Law of the Sea, University of Cambridge – PhD thesis, (February 2018).
  7. Southern Bluefin Tuna (New Zealand v. Japan; Australia v. Japan) (Provisional Measures, Order of 27 August 1999) ITLOS Reports 1999, 280 [70].
  8. Responsibilities and obligations of States with respect to Activities in the Area (Advisory Opinion, 1 February 2011) ITLOS Reports 2011, p. 10 [23] [110].
  9. Whaling in the Antarctic (Australia v. Japan: New Zealand intervening) [2014] ICJ Rep 226 [83]
  10. Request for Advisory Opinion submitted by the Sub-Regional Fisheries Commission (Advisory Opinion, 2 April 2015) ITLOS Reports 2015, 4.
  11. Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Arbitral Award of 18 March 2015; South China Sea (Philippines v. China), Arbitral Award on the Merits 2017
  12. Summary of the Twenty-fifth Annual Session of the International Seabed Authority (Second Part), 25:207 Earth Negotiations Bulletin (29 July 2019).
  13. Bjarni Már Magnússon, The Grey Areas in the Bay of Bengal, July, 56 Indian Journal of International Law 41-58 (2016).

About the Author

Moses holds an LL.M. in International Law from South Asian University, New Delhi. He is currently an Assistant Professor of Law at St. Joseph’s College of Law, Bangalore.

✉moses@sjcl.edu.in

For pdf click here

Interview: Riaan Eksteen

Sep. 6, 2020

Riaan Eksteen (Ph.D. University of Johannesburg)

author of

The Role of the Highest Courts of the United States of America and South Africa, and the European Court of Justice in Foreign Affairs (Springer, 2019, pp. 448)

Greetings and a very warm welcome Dr. Riaan Eksteen. Before we move ahead with the discussion on your book, can you briefly tell us about yourself and your career?

I obtained my master’s degree (Cum Laude) in Political Science in 1974 from the University of South Africa with the thesis entitled: “The Role of the USA Senate in Foreign Affairs”. My Ph.D. Was awarded by the University of Johannesburg in October 2018 and the book was published in July 2019. Currently, I am a Senior Research Fellow at the Department of Politics and International Relations in the Faculty of Humanities, University of Johannesburg. Academically, the last twelve months have been quite engaging as I have been busy with presenting and writing extensively on issues of law, courts, and foreign relations.

Over the long span of my career, I have held several profiles. For instance, I was a member of the South African Foreign Service and served in the Foreign Ministry’s Namibia Division 1964-1967; S.A. Embassy in Washington D.C. 1968-1973; head of the UN and Namibian division in the Foreign Ministry 1973-1976; Ambassador and Head of Mission at UN, New York, 1976-1981; Head of Planning in the Foreign Ministry 1981-1983; Ambassador in Windhoek 1990-1991; Ambassador at the UN, Geneva, 1992-1995; Ambassador in Ankara 1995-1997 (also accredited to Azerbaijan, Kyrgyzstan, Turkmenistan and Uzbekistan). Also, from 1983-1988 I was the Director-General of the South African Broadcasting Corporation.

What inspired you to take up this unique area of research? Also, if you want to introduce our readers with five key features of your book, what would they be?

When I did my master’s degree I was intrigued by the question: does the judiciary have any role in foreign affairs, not as the formulator of the foreign policy, but as an active influencer? How the judiciary holds the executive accountable to the constitution and prevents executive overreach in respect of foreign affairs?

If you ask me five key features of the book, they would be:

  1. An intensive and incisive examination of the judiciary’s role in foreign affairs.
  2. Coverage of essential material and analysis on foreign affairs by the relevant Courts through their decisions, presentations and briefs to the Courts, scholarly contributions and relevant publications.
  3. The lack of recognition of the judiciary’s role in foreign affairs is conspicuous, and the book accordingly addresses the deficiency.
  4. It gives due recognition to the judiciary and its increasing relevance and influence in foreign affairs.
  5. Three chapters in the book deal with the European Court of Justice (ECJ). One of them is devoted to Brexit and the inordinate fixation of the United Kingdom (UK) with the Court.

Did your long illustrious career in diplomacy help you in framing arguments in your research?

Throughout my diplomatic career, it was always important to observe the three pillars of constitutional government and to understand the interrelationship between them. Consequently, I became aware of how each one of them has an impact on the other in some way or the other. Sometimes it is a delicate balance but nevertheless, the interaction and the influence cannot be ignored. These factors were integral in my research for the book.

Your book undertakes the heavy task of assessing the judicial responses to foreign policy in the USA, the European Union and South Africa. Where do you think is the fundamental difference in those responses?

Each of the three judiciaries studied differs from the others. They are not the same and different criteria apply to the assessment of each judicial system. The two Appellate Courts of South Africa and the ECJ do not have a history or track record in matters involving foreign affairs to the same extent as the Supreme Court of the USA (SCOTUS). The main focus has consequently been on SCOTUS, with a more incisive examination of its role in foreign affairs.

SCOTUS is not charged explicitly by the Constitution with any responsibility in foreign affairs. It does, however, embody the crucial principles of the separation of powers and checks and balances. Together with the doctrine of judicial review that the Court exposited in 1803, SCOTUS is assured of being a formidable force in the US society — and one no less in that country’s foreign affairs from a very early stage.

The highest judicial authority in South Africa has not shied away from involving itself in issues that may have an impact on foreign affairs. While not enough cases have as yet been decided to serve as a study equal in scope to that handled by SCOTUS, these two South African Courts have already decided benchmark cases. With a determined approach to human rights issues, their rulings have left an indelible reminder that the judiciary will not be kept from adjudicating cases that may have implications for the country’s foreign affairs. With its stern reprimands in these cases, the two  Courts have lived up to their role of upholding the rule of law in exemplary fashion. Their rulings carried another equally important message: the judiciary has an unmistakable role to play in foreign affairs. In doing so these two Courts will not only hold the executive accountable to the principles enshrined in the Constitution, but also keep the executive within constitutional limits. This they have done in several cases without fear or favor. Foremost are the cases involving the former President of Sudan during his visit to SA while a warrant for his arrest issued by the International Criminal Court was ignored by SA.

From its inception, the ECJ has been an unusual international forum for the EU. Over the years it has expanded its jurisdictional authority well beyond its original, narrow boundaries. Its influence has become more apparent and contested.  Contrariwise, the ECJ has been hailed as the most powerful supranational court in world history. It has already had a significant impact on the EU’s foreign affairs by placing human rights unequivocally at the heart of the EU legal order. The series of cases involving Kadi underscores this point. It secured an appropriate balance between fighting terrorism and protecting those rights. The Court’s central argument was that the protection of fundamental rights forms part of the very foundation of the EU’s legal order whereby the Court is committed to guiding the EU in its foreign affairs. In doing so the Court has ensured that all EU actions are commensurate with and in harmony with obligations encompassed in all EU treaties. Over six decades the ECJ has grown into a formidable force, so much so that it has not endeared itself to the UK. In the Brexit negotiations between the UK and the EU, the ECJ has become a major bone of contention and stands central in the efforts to finalize the UK’s exit from the Union by the end of March 2019. In the current negotiations between the UK and the EU to give substance to the former’s decision to leave the EU (Brexit), the ECJ has featured prominently. Historically important rulings placed the Court in the centre of the UK’s Brexit decision.  That resulted in the ECJ becoming a major issue with consequential foreign affairs implications for both the UK and the EU. In the final analysis, everything Brexit is foreign affairs-oriented, and at the centre of all of this stands the ECJ.

While the political branches of government most directly determine outcomes in foreign affairs, the contributions of the judiciary are no less significant. Many questions impacting on foreign affairs require constitutional interpretations relating to the authority vested in the executive and legislative branches. Only the judiciary possesses the authority to interpret constitutional and treaty stipulations. In doing so judicial decisions define the parameters and boundaries within which the political branches can and should operate — in domestic affairs and most definitely also in the foreign affairs of the USA, South Africa and the EU.

Why is it important to give the judiciary a say in matters of foreign policy, which is typically seen as the domain of the executive? How would it affect the dynamics of justice?

Foreign Policy Analysis (FPA) provides the analytical framework for this inquiry. It focuses and concentrates on the domain of foreign affairs analysis. The lack of recognition of the judiciary’s role in foreign affairs is still noticeable in FPA literature. I  concluded that FPA has to move away from its state-centred orientation that focuses on the two political branches of government and give due recognition to the judiciary and its increasing relevance and influence in foreign affairs. As mentioned before, it is important to maintain the checks and balances in a constitutional system.

In the post-truth era, it is alleged that heads of States are behaving in a way that compromises the independence of the judiciary. Do you think it is true and that the judiciary as a critical pillar of democracy is getting challenged?

I will focus my answer on SCOTUS as it has been the most active of all the three courts that I have chosen. In the past 25 years, SCOTUS has dealt more and more with issues pertaining to foreign affairs. The result has been that the executive paid the price when SCOTUS started cutting the President down to constitutional size. Therefore, while SCOTUS may not formulate foreign policy, nor engage in relations with foreign entities, many judicial actions, directly and indirectly, affect foreign affairs. The point is thus not whether the judiciary has a role to play in foreign affairs, but rather how great its influence is. The stage has now been reached where the President can no longer merely assume that his actions — defined as constitutional overreach — will not be critically scrutinized and he himself will not be rebuked. The Court has thus determined that the point has been reached that a President has to be called constitutionally to order when he has gone too far.  The conclusion reached is that SCOTUS is a de facto element in US foreign affairs. SCOTUS does decide cases that affect the relationship of the USA with the rest of the world; and as the Justices decide these cases, they are doing as much as anyone to influence US foreign affairs. The Court’s pronouncements in an age of globalisation, international terror, economic turmoil and, now lately, also with the ever-growing international debate on immigration, and their consequential impact on the country’s foreign affairs are not to be underestimated.

Do you think the decision of the US Supreme Court in Trump v. Hawaii (2018) could have been different?

With the decision on President Trump’s travel ban, the Court admitted what the President had underlined all along: the crux of his immigration actions has been national security. The decision gives credence to a statement that in the case of the USA SCOTUS has now concretized its role in foreign affairs. Consequently, the stage is set for greater involvement of SCOTUS in foreign affairs than before.

What are the most striking instances of judiciary-executive interaction in the US that your book engages with?

In the USA: The consideration of cases that focus on human rights, viz. those relating to the detainees at Guantánamo Bay prison and the application of the Alien Tort Statute. The cluster of Detainee Cases involving Rasul;  Hamdi;  Hamdan; and Boumediene was brought on by the “war on terror”. They became hallmark decisions in defining the contours of the President’s powers, not least in foreign affairs. They were setbacks for the President’s conception of authority and his responsibilities as Commander-in-Chief. Each case is also relevant for its human rights implications.

Human rights cases have the potential to intersect with complex and sensitive issues of foreign affairs and, in turn, give rise to the separation of powers concerns.  The cases of Sosa; Kiobel; and Jesner became synonymous with human rights and the Alien Tort Statute (ATS) of 1789.  Two hundred years later, this once-obscure provision of the Judiciary Act has become a unique vehicle for human rights litigants from various parts of the world to pursue their claims in US courts. The jurisdictional basis for most civil claims by foreign human rights plaintiffs in the USA is the ATS. The focus has turned on how the ATS could be used by these foreign plaintiffs to advance a global human rights regime. Only these three cases progressed all the way to rulings by SCOTUS. Each one left its distinct impact on the judicial consideration of human rights. These three cases acknowledged the importance of not causing diplomatic strife. From these cases emerged crucial concepts. Henceforth, plaintiffs in ATS cases will have to demonstrate their “nexus” to the USA.  Another concept they will have to face and overcome is the presumption against extraterritoriality as ruled by SCOTUS.

Although, judge-made law is an exciting jurisprudential proposition, how do you think SCOTUS can claim its space in foreign policy matters when ultimately, the legislature remains the final maker of law?

SCOTUS forms an integral part of the US constitutional system of government and has a rich 200-year plus history of testing issues of foreign affairs for constitutional validity and harmony. Its rulings impose constitutional restraints on the other two branches of government. This enables it to be a potent force in society and in its foreign affairs.  Not many judicial institutions in the world are credited with initiating and effecting political change on the scale of SCOTUS. This Court has exerted its authority with a great deal of influence.  Because the Court’s responsibility is first and foremost to interpret the Constitution, SCOTUS has profoundly affected the US society over more than two centuries. In that process, it has had principled impacts on the political and judicial systems of the USA.  Its influence on all spheres of human endeavour in the USA has been universally acknowledged and its record is awash with emphatic rulings touching the lives of ordinary citizens.  Suffice it to mention two important points in this respect:

  1. In his autobiography (Decision Points), President George W. Bush singled out the Hamdan-ruling for special reflection:

I disagreed strongly with the Court’s decision, which I considered an example of judicial activism. But I accepted the role of the Supreme Court in our constitutional democracy. I did not intend to repeat the example of President Andrew Jackson, who said, “John Marshall has made his decision, now let him enforce it!” Whether presidents like them or not the Court’s decisions are the law of the land.

  1. One particular instance of judicial scrutiny changed the USA forever. In 1954, with the rise of the civil rights movement, the case of Brown v. Board of Education served as a guiding light for all future generations. With that ruling, SCOTUS — not the President, not the Congress — ended legal segregation in the USA. This case did more than any other to solidify the Court’s role in the protection of civil rights. Furthermore, it enhanced the Court’s standing among the public in the USA from its humble beginnings to its preeminent institutional standing today.

Many thanks for your responses Dr. Eksteen. We wish you all the best with the book and future endeavours.

Pleasure is all mine. Thanks for having me and asking interesting questions.

Amazon link for the book is here.

For pdf click here.

From Westphalian Order to UNDRIP: Indigenous Peoples’ Journey to Recognition

Mohammad Umar* | Aug. 30, 2020

Background

Indigenous communities have a long history of struggle, especially, as one of the worst victims of the grim chain of events that colonization unleashed.

The classical Westphalian world order was almost orthodox and uncompromising in considering nation-states as its sole focal point. ‘Indian’  as the terminology, was used to identify the aboriginals or indigenous peoples by the European settlers in the annexed territories. A reflection of how they were perceived could be found in Francisco de Vitoria’s account wherein he refers Indians as ‘unfit to found or administer a lawful State’.  Vitoria, the Spanish theologian and jurist,  was a complex figure of his time. He argued- ‘at the time of the Spaniard’s first voyages to America they took with them no rights to occupy the lands of indigenous population’.  He even conceded the presence and ability of universal reasoning in Indians, but in a strange twist, he also tagged them as backward, barbaric, uncivilised and therefore subject to sanctions because they failed to comply with universal standards. In Vitoria’s scheme, Indians who inevitably and invariably violated jus gentium were denied the status of an all-powerful sovereign that could administer the law.  After an excellent analysis of Vitoria’s work, Professor Antony Anghie comes to the following conclusion–

clearly, then, Vitoria’s work suggests that the conventional view that sovereignty doctrine was developed in the West and then transferred to the non-European world is, in important respects, misleading. Sovereignty doctrine acquired its character through the colonial encounter. This is the darker history of sovereignty…

Pre-United Nations (UN) Era

By the late 19th Century, indigenous communities in the mainstream global psyche were still ‘backward’. The newly emerged nation-states took upon themselves to meet at the Berlin Africa Conference (1884-1885) and discuss the issue of African aboriginals. The idea was to ‘integrate’ the aboriginal population into the ‘civilised world’.

In order to realize this disguised benevolence, the ‘trusteeship doctrine’  was introduced to establish the legal relationship between nations and indigenous populations.  It was formalized through the Covenant of the League of Nations, 1919.  Even though the text (particularly Article 22) of the Covenant did not mention indigenous people (using only ‘peoples’), the structure of its language had a direct impact on their future. As per the Covenant, parties ‘which are inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world’ should be governed by the principle that ‘the well-being and development of such peoples form a sacred trust of civilisation’. Further, the Covenant proposed:

the tutelage of such peoples should be entrusted to advanced nations who by reason of their resources, their experience or their geographical position can best undertake this responsibility, and who are willing to accept it, and that this tutelage should be exercised by them as Mandatories on behalf of the League.

Post UN Efforts and the UNDRIP, 2007

The International Labour Organization (ILO) became the first inter-governmental organization to give special attention to the concerns of indigenous people in 1957 with the adoption of the Convention (No.107) Concerning the Protection and Integration of Indigenous and Tribal and Semi-Tribal Populations in Independent Countries. For the first time, indigenous people were defined and were not generalized or dismissed as just ‘populations’. The Convention sought to address the crisis of forced and underpaid labour in former Spanish and Portuguese colonies in Latin America. Hence, while referring to the indigenous communities belonging to these places, the preamble declared:

it (is) desirable both for humanitarian reasons and in the interest of the countries concerned to promote continued action to improve the living and working conditions of these populations by simultaneous action in respect of all the factors which have hitherto prevented them from sharing fully in the progress of the national community of which they form part.

But this convention was rejected by the indigenous communities for the simple reason that it adopted the same ‘integration’ based approach, which was used in the Covenant. It compromised their cultural identity and distinctiveness.  Apart from the rejection by indigenous people themselves, Convention 107 could not garner the popular support and could manage the support of just 17 states.

With nation-state system as the global political framework, indigenous communities now demanded what scholars call ‘internal self-determination’.  The ILO again took up the matter and in 1989 adopted the Convention (No.169) Concerning Indigenous and Tribal Peoples in Independent Countries.  This was more acceptable to the indigenous populations in the sense that it diluted the paternalism of states and gave the right of self-identification as indigenous people to the people themselves.  Significantly, it also recognized their cultural distinctiveness and autonomy.

It was of course, too radical to swallow for the powers of the day. Therefore, despite espousing progressive ideas, Convention 169 could muster the ratification of 22 states only.

UNDRIP

The two ILO Conventions were not very successful in terms of the number of adherents, but they did the critical job of formally flagging major issues affecting the indigenous communities. It was soon realized that a more concrete step is required. The UN Economic and Social Council proposed that permanent sovereignty over natural resources is not the sole prerogative of the ‘States’, the indigenous people have a claim too.  Reminiscent of the third world struggle against the political domination of the West in the 1970s, this was exciting. Land rights and rights like self-determination and cultural identities took the center stage in negotiations and after jotting the initial draft in 1994 the UN finally passed the historical– Declaration on the Rights of Indigenous Peoples in 2007.  Some of the key inclusions in the declaration were/are-

  1. No strict definition of indigenous people.
  2. Right of self-determination.
  3. Maintaining their identity.
  4. Right to land, resources and territories which they have traditionally owned.
  5. Participation in the decision-making process.
  6. Restitution and fair compensation of the lands taken.
  7. Fair, independent, impartial and open adjudication.
  8. No militarization of the areas belonging to indigenous people.

UNDRIP was adopted in the General Assembly with the approval of 143 member states. Although a soft law instrument; its content was pivotal in the determination of the political agency of the indigenous peoples. The idea of agency, however, should not be narrowed to understand self-preservation in a notional sense. Unless there is a substantive, real-time change in the treatment meted out to tribal or the indigenous communities, most promises under UNDRIP would remain hollow.

References :

  1. Antonio Cassese, Self-determination of Peoples: A Legal Reappraisal 101 (CUP, 1995).
  2. Antony Anghie, Imperialism, Sovereignty and the Making of International Law 29 (CUP, 2005).
  3. Covenant of the League of Nations (28 April 1919).
  4. Erica-Irene A. Daes, Indigenous Peoples’ Permanent Sovereignty Over Natural Resources, E/CN.4/Sub.2/2004/30.
  5. ILO Convention No. 169, 1650 U.N.T.S. 383, 27 June 1989.
  6. ILO Convention No.107, 8 U.N.T.S 247, 26 June 1957.
  7. J. R. Martínez Cobo, Study of the Problem of Discrimination against Indigenous Populations, UN Doc. E/CN.4/Sub.2/1983/21/Add.8, 30 September 1983, paras 379, 380.
  8. Maria Victoria Cabrera Ormaza, Rethinking the Role of Indigenous Peoples in International Law: New Developments in International Environmental Law and Development Cooperation, 4:1 GoJIL 265-268 (2012).
  9. UNDRIP, GA Res. 61/295, 13 September 2007.

*About the Author

This is an edited excerpt from the paper presented at the Annual International Studies Convention (2014), held at Jawaharlal Nehru University on the theme Power, Resistance and Justice in the International System: Perspectives from the South. Umar is an Assistant Professor of Law at Bennett University, India and the Founder Advisor of Weera Centre.

✉ mdumar2417@gmail.com

For pdf click here