Prescriptive or Permissive? Part II

Added to these major international normative regimes, as discussed in the Part I of this essay, is the vast network of International Institutions and Tribunals which are the repositories and enforcers of compliance with these norms. There are specialist agencies working in every area and in every country. And the countries they cannot work in, such as, North Korea, they are still so industrious to able to bring a 300 page report on Human Rights violation.

There are permanent, specialized, ad hoc, institutionalized, dispute settlement bodies covering all the topics of International Law which Lassa Oppenheim could think of. ICJ, PCA, ICC, ITLOS, LCA, WTO Dispute settlement panels, Special Tribunals for Rwanda, Sierra Leone, Yugoslavia, Cambodia, phew! And so many of them come with binding clauses. Non participation in them invokes international criticism, brings down you reputation a notch, a significant currency to pay with in international life. Case in point – China’s non participation in Philippine initiated arbitration in ITLOS. China is legally not obliged to take part in the proceedings, it has a strong backing of UNCLOS, yet it is being blamed for disrupting peace in the region.

I believe that International Law is so prescriptive, that a singular subject matter is wrapped over and over in laws and regulations, with multiple agencies having concurrent jurisdiction on the matter. This has become such a problem that the scholarly debates are turning to discuss and debate ‘Fragmentation of International Law’. Case in point – Marine Organisms are covered by UNCLOS, Biodiversity Convention, TRIPS, and a national legislation, if God forbid, they happen to fall under some territorial sea or EEZ. (In the context of Marine Genetic Resources, a fantastic topic)

International Law hasn’t remained what it was. I think one would agree with me, that it has become prescriptive to the extent that this discussion should include the Constitutional structure of International Law which is building up organically as States are involving themselves more and more in their International lives. Where the head of states are considering it imperative to spend equal amount of time abroad (Indian Prime Minister), and some aspiring head of state has to defend her foreign policy conduct in front of a senate committee (Hillary Clinton).

Hence, excusing my limited abilities of empirical research, I submit to you this brief survey of page 3 happenings in International Law, as I plead that International Law is largely prescriptive.

Now, if I have another afternoon free, and I can come up with ideas on how International Law is permissive, I shall post it here!

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Prescriptive or Permissive? A Quick Survey of International Law – Part I

The New Year brings the forgotten joy of writing to old friends, colleagues and teachers. As I was reveling in exchanging emails with my professor from the law school, who was my first teacher of International Law, he told me that this semester he is going to hold a brainstorming session with his students on whether International Law is Prescriptive or merely a bundle of permissive norms. I remembered that he had asked the same question from our batch too. So, first I became restless, for not knowing the answer right away, but then I remembered that it is not a question asking if I want fries with my burger (although I have difficulty in answering that too!). Then, I began to dissect the question, and I got stumped on the very first piece, What is International Law? huh!! Now saying that it is a body of rules governing the conduct of states… la di dah …. , it is not an inaccurate description but it’s an understatement. It just doesnot convey the sense of International Law today, it is everything, it is everywhere, like Matrix.

However, it is important not to fall and get drowned while peeping over this vast roaring sea of international norms that is present this day. Keeping the original question in the sight, I then began to think, that the most definitive answer to this question can be found by an extensive empirical research -: collect all the international, regional, multilateral treaties, agreements, and plot their provisions as prescriptive or permissive (understanding the meaning of the words in their usual sense), tabulate all the data, treat it with some statistical tools, and find out the answer for once and all. At least my professor’s next batch will be spared of the question. But, well, unfortunately for the kids, I am not that good at statistics.

Hence, when we are too lazy to learn any advanced statistics, we simply call the data size to be infinitive, and go for random sampling. However, the sample I propose is not that random. Let’s take the ‘major international normative regimes’, constituting of a) Sovereignty, b) Free Trade, c) Human Rights, d) Self Determination, e) Arms Trade and Disarmament, a selection proposed by Prof Alastair Ian Johnston of Princeton University, (International Security, 2003). Now if we may throw a quick glance on the present day rhetoric of all these norms.

a) Sovereignty – The days of unfettered sovereignty which came along with the unfettered territorial acquisition are over. It is just so unfair that, nowadays you can’t even take out your boat, find an island or two, kill the ‘savages’, and declare yourself to be the sovereign. Case in point – Russia’s continuing occupation of Southern Ossetia, and Crimea. Putin did everything Alexander the great would have done, but damn the international community that it won’t let him name these small pockets as Russia. Effectively or not, they will remain ‘belligerently occupied territory’ much to the Mr. Vladimir’s chagrin.

Even Uncle Sam has been accused of putting up the facade of Peace War, Iraq War, revolutions, etc., to keep occupying the resource rich territories. International Law has trimmed the corners of Sovereignty.

Remember the time when Hugo Grotius proclaimed all seas to be open to all? We had started from there, and today it is a wonderment that these days, with the limits and obstacles of far flung voyages vanished, vast swathes of land and sea have been declared ‘international, ‘common heritage of the mankind’, and are generally free for all. Arctic Ocean, upon which States have legitimate territorial claims, has an Arctic Council just to hold its international character in place. International Seabed Authority solely controls more land in the terms of area than UN can ever hope to. (Although UN doesnot really control any territory, it merely has some forlorn protectorates). An entire continent by the name of Antarctica is free for all, but belongs to none.

b) Free Trade – With GATT, WTO, and what not, my question, is the trade really free? If it is, as said to be free, why am I not already assembling laptops, putting a logo of a bitten apple, and selling them far and wide, ten bucks a piece? And then when my sales go down, I dump them all in Somalia, a buck a piece. I cannot do this unless I am street side hawker in a shady street in some B-grade Chinese town. You get me, trade is regulated.

c) Human Rights – Honestly, I never took much interest in Human Rights. But an occasional glance on some decision by European Court of Human Rights, tells me that the countries nowadays can barely imprison a person without getting in trouble with NGO. Reminds me of the time, when Ajmal Kasab, one of the terrorist captured during 2008 Mumbai terror attacks, was imprisoned in India, the news of his treatment in prison was more common than news of his trial. Infact, it was just last summer that I got to know that the UN Committee Against Torture holds its session every year to admonish the countries for not treating its prisoners right. Just last month the New York Times had a report on it grilling China.

d) Self Determination – Well, let’s agree that this one is more of a political question, and a question depending upon the preference of the global power elites. East Timor, Kosovo, got a lot of attention, South Sudan came in news but largely burned, and a very few know about the struggle for self determination in Western Sahara. Tibet gets much limelight because China on the opposite end of the spectrum. But the news is only occasional on the referendum voting happening in Catalonia region of Spain.

e) Arms Trade and Disarmament – Another topic, I don’t know much about. However, having general knowledge about non proliferation treaties, the ventures and adventures of IAEA, I can say this – if Monsieur Huig de Groot would write an equivalent Mare Liberum for all states to have equal rights to all sorts of arms they can have, the world will be a perilous place to live in.

Continued to Part 2

An Argument for Construction of Common TWAIL-Based Identity in East and Southeast Asia

The Unequal Treaties weave the narrative of state transformation and the deconstruction of the Sino-centric regional order in the Southeast Asia. A chain of empires and kingdoms—extending from the Korean plateau in the northeast, Japan, the Qing Empire, and the Kingdom of Siam in the southeast, were faced with relentless diplomatic pressure under the shadow of gunboats, and coerced into entering into biased and one-sided treaties. Across the region, these treaties set out a pattern of relations, which formed the infrastructure of a semi-colonial political system. Not only the unequal treaties forced the semi-colonial states to reform and restructure themselves to suit the needs of the Western powers, they also provided a new institutional framework for international politics in the region. The post-Westphalia concepts of sovereignty and equality displaced the traditional hierarchy-based system of inter-state relations in the region. As the nineteenth century turned over, the Western powers systematically fractured the former Sino-centric regional structure by carving out spheres of influence, and left it littered with bitter political disputes and legal anomalies that continue to this day.

However, a lesson in history is not where this discourse on Unequal Treaties ought to stop. This is so particularly because the current international legal regime is still frequently used to legitimize and sustain the unequal structures and processes that have manifested themselves in the growing North-South divide. The relationship between ‘state’ and ‘international law’ is being reconstituted to the distinct disadvantage of the Third World and its people. As in the past two centuries, the policies and laws of the Third World states are still being dictated by the international institutions that are conspicuously controlled by the ‘First World’. It is not in vacuum that the terms like ‘neo-colonialism’ or ‘neo-imperialism’ have been coined. Many of the Southeast Asian States forming a part of the Third World, have witnessed debilitating economic meltdowns and severe political interferences because of such a structure of the international order that infiltrates and superimposes the interests of a transnational ruling elite on the developing states.

It is at this juncture that the ‘Third World Approach to International Law’ (TWAIL) be taken into serious consideration. TWAIL – a critical school of international legal scholarship — is an intellectual and political movement formed by a group of states, which are, although geographically, culturally, politically, and economically diverse, bound by a shared colonial past. It is a coming together of such States to build a common platform to consolidate the sources of international law in order to articulate and address the material and ethical concerns of the region and its people. TWAIL seeks to pierce the partial blindness induced by the structural determinism of the omnipresent and penetrative international legal regime, which has in turn prevented a holistic critique of the regressive international practices, or mapping out alternative futures. This approach has come a long way from its first generation foundational phase to inter-state forums being set up on the basis of their common history and shared goals. TWAIL may not be dismissed as a mere theoretical proposition or a wishful radical transformation, as it proves its practical and real-life functionality. A most recent and a gem of an example is the setting up of the New Development Bank by the BRICS States. By establishing this new multilateral bank, the BRICS States have decentralized the power previously held by IMF, and the World Bank, which were always complained to be too American or Eurocentric. The success of the BRICS Bank is yet to be assessed in coming years, but the establishment of such an institution, which may mark the emergence of a new financial order, by a handful of developing states, is a laudatory act in itself. 

Witnessing the continuing imposition of structural inequality in Southeast Asia, affected through partisan application of International Law, the central proposition calls for construction a common TWAIL-based identity for the region. Drawing largely from the Constructivist theories in international relations, it can be plausibly argued that construction of an identity based on doctrinal epochs of TWAIL will create an intersubjective system based upon shared history, mutual understanding and social knowledge, and common understanding. This will be instrumental in helping the Southeast Asian states to positively identify their interests with regard to each other in larger international forums. Once this shared identity is settled into the consciousness of the States in the region, it can be evolved into  a political platform to gain leverage in international negotiations on the issues of common regional concern, and for establishment of new institutions and regional orders, howsoever the need be.

Hopefully, by reclaiming the narrative and turning over the rhetoric through TWAIL, this long continuing discourse of the unequal treaties will come to an end in this era.

The Bay of Bengal Maritime Arbitration Case: Part II

Delimitation of EEZ and Continental Shelf

In order to delimit the areas beyond the territorial sea, the Tribunal first determined the relevant coastlines of the Parties and subsequently the relevant area. Its task was “…to identify the coast that generate(s) projections which overlap with the projection from the coast of the other Party.” The Tribunal found that India’s relevant coastline stretched further south west to Sandy Point as opposed to Devi Point as India had claimed. It also found that the projections from the northern tip of the Andaman Islands (India) qualified for the identification of the relevant area. It delimited the relevant area accordingly.

In his dissenting opinion, Dr. P.S. Rao, criticized the identification of the coastline stretching to Sandy Point and the relevant area, by pointing out that the international jurisprudence demands that the construction of the relevant area be “… as strict as possible to denote the disputed area as closely as possible…”. He also disagreed on identification of projections from the Andaman Islands, as its coastal front is neither opposite nor adjacent to the coast of Bangladesh.

Preference was given to the Equidistance/Special Circumstance method for delimitation of delimitation of the EEZ and continental shelf within 200nm, over the angle bisector method proposed by Bangladesh, for the reasons of transparency and the fact that Bangladesh’s arguments for angle bisector line weren’t found to be convincing. The Tribunal reasoned that the instability of Bangladesh’s coast doesn’t render it special circumstance as it was possible to identify the base points, nor can future possibility of climate change be taken to adjust provisional equidistance line.

Delimitation of Continental Shelf Beyond 200NM

The Parties and the Tribunal both agreed on the point that there is a single continental shelf , and that there is no difference between the continental shelf within 200nm and the so called ‘outer continental shelf’. The Tribunal recognizing that both the Parties have entitlements in continental shelf beyond 200 nm, decided to delimit the continental shelf beyond 200nm using the equidistance/relevant circumstances method as it has used for delimiting the shelf within 200nm.

The Tribunal accepted Bangaldesh’s argument that the concavity of Bangladesh’s coast indeed produces cut off effect. It ruled that the provisional equidistant line was not equitable as it prevents Bangladesh from extending its maritime boundary as far as International Law permits, thus defeating the principle of equitable use of the sea area. Thereby rendering it a special circumstance, the Tribunal proposed adjustment of the equidistant line within and beyond 200nm.

The final adjustment of the equidistant line gave out more area to Bangladesh. This adjustment was criticized by Dr. P.S. Rao, as in his opinion the Delimitation Point from which the adjustment was affected was well before the point where a significant cut off occurs. This adjustment is not sufficiently justified. Also, the fact that the adjusted line concurs with the bisector line proposed by Bangladesh is arbitrary and run against the majority’s own rejection of the bisector line. Continue reading

The Bay of Bengal Maritime Arbitration Case: Part I

Introduction

On 7 July 2014, the Permanent Court of Arbitration, the Hague, passed the award in the Indo-Bangladesh Maritime Arbitration Case (The Bay of Bengal Maritime Boundary Arbitration). The case was initiated by Bangladesh against India in October 2009, pursuant to Art. 287 of the UNCLOS, after 11 rounds of negotiations between the parties over five decades proved to be indecisive, and often marred by local politics. Following pages give a summary of various issues and facts considered by the tribunal to reach the final award.

The Tribunal was composed of: Judge Rudiger Wolfrum (President), Judge Jean-Pierre Cot, Judge Thomas A. Mensah, Dr. P.S. Rao, and Prof. Ivan Shearer. Dr. P.S. Rao reserved a concurring and dissenting opinion.

Background

The Indian Independence Act, 1947 of the United Kingdom, partitioned from India the state of West Pakistan and East Pakistan. East Pakistan was carved out of the Bengal Province, with West Bengal remaining in India. In order to demarcate the boundary between East Pakistan and West Bengal, the Bengal Boundary Commission was set up in 1947 chaired by Sir Cyril Radcliffe. On 13 August 1947, the report was submitted describing the boundary, and is known as “Radcliffe Award.”

Thereafter, in the light of disputes on the application of Radcliffe Award, an Indo-Pakistan Boundary Disputes Tribunal was set up, known as Bagge Tribunal. The Award of this Tribunal dealt with segments not relevant to this case.

On 26 March 1971, Bangladesh declared Independence from Pakistan and succeeded to the territory of East Pakistan and its boundaries.

The boundary between India and Bangladesh runs across the Sunderban Delta region. The southern section of the land boundary lies in the riverine features, which fall in the Bay of Bengal. This delimitation exercise involves delimiting the boundary river, identifying the terminal point of the land boundary, to delimit the territorial sea, the EEZ, the continental shelf within and beyond 200nm.

Jurisdiction

The Parties were deemed to have accepted arbitration in accordance with Annex VII since there was no declaration made by either party under Art. 287(3) (Choice of Procedure), nor had any party made a declaration under Art. 298, thereby, not excluding the current dispute from compulsory dispute resolution mechanism entailing binding procedure. The Tribunal assumed the jurisdiction to ‘… adjudicate the present case, to identify land boundary terminus and   to delimit the territorial sea, the Exclusive Economic Zone and the continental shelf between the parties within and beyond 200nm in the areas where the claims of the parties overlap. Continue reading