Are international legal barriers sufficient?

Khoo Wu Shaun

We live in a time when international law has steadily become an accepted norm of global diplomacy. Today, unilateral invasions of other sovereign countries are decried as ‘violations of international law’; barely a century ago, the only sounds anyone heard were those of the victors announcing their success. We have come quite a long way since Bentham first coined this term in the 18th century.

Yet, international law has not shed its image of being toothless. We have seen countries act in defiance of international law, but leave happily unpunished for their transgressions. This article will examine what these international legal barriers are, and whether they are currently sufficient to deter countries from intruding on the sovereignty of other nation-states.

Questions of legality in an international context are far more complex than those in a local context. Within a country, sovereignty empowers the government to set and enforce laws on people within its jurisdiction. Globally, it is difficult to define any clear overriding principle or government which can fulfil those roles. Our closest option is the United Nations (UN), an inter-governmental organisation which serves to promote peace and cooperation between member states. The International Court of Justice (ICJ), founded in 1945, serves as the UN’s judicial branch. Its purpose is to settle legal disputes submitted to it by member states and provide advisory opinions on legal questions for the UN bodies. But, since there is no global legislation for international law, where do these legal barriers we apparently pay homage to come from?

In the landmark North Sea Continental Shelf case, the ICJ affirmed that there are two primary sources of international law: treaties, or customary international law (CIL). Treaties are more enforceable than custom, as the countries have explicitly consented to the provisions contained within the document. In contrast, CIL is derived from customary practices between states. 

Most are aware that UN Security Council (UNSC) resolutions are legally binding on all member states in the UN. In some sense, UNSC resolutions also serve as a form of international law, since it applies to all countries regardless of whether they agree with the content of the resolution. Since their legal authority flows from the UN Charter, UNSC resolutions fall under the first category of treaties and agreements. 

Thus, international jurisprudence clearly exists, although it is less obvious than national legislation. Another question arises here: since there is no global government, what kind of punishments can international law mete out, and are these effective?

Theoretically speaking, the ICJ enjoys unfettered discretion in handing down punishments to countries which have violated international law, since there is no “international legislation” which states the maximum or minimum punishment for a particular offence. Realistically, the ICJ has little room to mete out harsh punishments, as their credibility hinges on countries viewing the ICJ as a fair judicial body, and not an overly strict and punitive institution. Despite this, the ICJ has doled out quite a few punishments, from ordering a country to withdraw from an occupied territory to ordering reparations for damages. Crucially, ICJ judgements are influential in global discourse. In the case of the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the ICJ ruling that Israel had violated international law served as a powerful riposte to Israel’s constant denial to the contrary.

Although the ICJ seems toothless, its judgements are actually supported by the UN Charter, which empowers the UNSC to impose punitive measures for non-compliance, such as political and economic sanctions. Interestingly, most countries voluntarily comply with the judgement even if it was not in their favour. Countries are aware that if they lose and refuse to follow ICJ judgements, they will become outcasts for refusing to comply with international law. It is telling that no country has ever blatantly refused to comply with ICJ judgements. 

Akin to how punishments deter people from harming other citizens, international law also serves to deter countries from harming the sovereignty of other nation-states. Examples of such actions include the use of force in disputed maritime areas or intentional neglect of transboundary crises. Is international law sufficiently robust as a deterrent to such actions? 

While treaties and agreements are legally binding, they also require all parties to unambiguously agree not to carry out certain actions.If, however, the country has a strong incentive to keep their options open, they would simply refuse to sign. For example, Israel and India are both powerful nuclear-armed states which have not signed the Nuclear Non-Proliferation Treaty due to regional security concerns. This hurts the treaty’s objective to prevent the spread of nuclear weapons and its associated technology.

Perhaps UNSC resolutions are a better option since the resolutions are binding on all countries, circumventing the problem of requiring consent. However, the UNSC is only empowered to use its power in cases of “the maintenance of international peace and security”— hardly applicable to most problems in the world. Furthermore, the UNSC itself comprises countries which can protect their interests against the weight of international law – Russia and its annexation of Crimea come to mind here – and may not work in intractable situations.

The last possibility is customary international law, which appears to be the weakest tool of all three legal instruments. Yet some fundamental international principles— the right of international passage, rules on the use of force, and the duty to cooperate in transboundary environmental harm— were first conceptualised and subsequently reinforced in ICJ cases. These landmark cases have reinforced widespread agreement on certain issues, and crystallised this consensus into official CIL, thereby ensuring its fair application to all countries involved. Moreover, as we’ve seen, the ICJ has the influence and backing to ensure that its judgements are respected by the countries involved in disputes.

One drawback is that the ICJ does not have legal jurisdiction unless both countries declare they recognise the authority of the court. Some countries who have yet to officially acknowledge the ICJ have still proceeded with cases in it, somewhat undermining its authority. Furthermore, the Permanent Court of Arbitration (PCA), another international judicial body, recently ruled that it had jurisdiction over the Philippines’ case on China’s maritime and military activities in the South China Sea, despite China’s opposition to the proceedings. This demonstrates the growing force of international law which is slowly increasing its ability to influence global discourse and pressure countries into accepting its jurisdiction. This strengthens international legal barriers against unilateral intrusions on the sovereignty of other nation-states.

The implications of this are obvious. National legislation protects citizens, especially vulnerable ones, from harm. Similarly, international law functions as a protective barrier which shields weaker countries from the coercive pressures of stronger countries. In Nicaragua v. United States of America, the court ruled that the U.S. had illegally trained and funded anti-government rebels to overthrow the incumbent anti-American government. This sent a powerful message to the global community that superpowers cannot do as they wish: they are equally held to task by international law. 

Furthermore, global peer pressure and a body willing to persecute countries for illegal actions acts as a deterrent. For example, the U.S.’s foreign surveillance programme, PRISM, was criticised by government officials and legal experts from all over the world, forcing President Barack Obama to strengthen restrictions on the National Security Agency (NSA). In the past, the U.S. would have simply turned a deaf ear.

Having a strong understanding of its foundations, powers, and limitations is crucial towards developing this fledgling institution into an influential force for good in the world. Supranational judicial institutions, such as the ICJ and the PCA, still struggle for influence in countries where the rule of law and human rights protections are not as well-respected. It remains an uphill battle for these international courts as they slowly overturn the old belief that countries may do what they please as long as it is within their borders, or if they are the victors.

More essentially, international law serves as a platform for countries to tussle with each other over serious, but not drastic or permanent, intrusions of national sovereignty. In the past, the only available responses were acquiescence or full-out war. Today, international judicial bodies enable these countries to settle their disputes in a fair and peaceful manner. That must surely be the most important contribution that international law can make to the global community.

Nation-building in Kazakhstan after the fall of the Soviet Union

Occupied by Mongol and Russian Empires and forming part of the USSR, the question of independent Kazakh identity has always been fraught with complications. Soviet repression in the 1920s and 30s, resulting in crises of starvation, mass emigration, and purges of the Kazakh intelligentsia, led to a 38% decline in the population of Kazakhstan. Described in J. Melich's article on nation-building and cultural policy in Kazakhstan as Stalin's personal "dumping ground for ethnic groups whose loyalties were in doubt", in the 1930s and 40s millions of Russian political prisoners and "alien" ethnic groups were exiled to Kazakhstan. 

Decades of war, famine, and Russian resettlements took their toll. By the 1960s, the native Kazakhs were an ethnic minority on their own soil, comprising just 30% of the population. Ethnic dominance became mirrored in linguistic dominance, and, even today, Russian is the dominant language of Kazakhstan. 

Twenty five years after the fall of the Soviet Union and the country's Communist-era leader, Nursultan Nazarbayev, is still in power. Severely criticised for his authoritarian style of leadership by Human Rights Watch, Nazarbayev has also been implicated in numerous human rights scandals, most notably his harsh suppression of political opposition. 

In the country's 2004 elections, opposition parties which were officially permitted to participate in the elections won just one seat. Subsequent victories in 2005, 2011, and 2015, saw Nazarbayev attain landslide victories of 90%, 96%, and 98%. Nevertheless, the Organisation for Security and Cooperation in Europe declared that the Kazakhstani elections fell short of international standards. While standards of living for ordinary Kazakhs continue to worsen, according to The Guardian, Nazarbayev has "amassed a fortune, making him one of the richest men in the world".  

The government's attempts to legitimise itself and its present power are implicit in the attempts to both reconnect with its traditional past and look to future in creating a modern vision of Kazakhstan. The government's concern with establishing a sense of Kazakh heritage is reflected in the rise in the number of national museums from 87 to 224 in the years 1995-2013. As an institution promoting patriotism and heritage, the inauguration of national museums in Kazakhstan within the context of nation-building is hardly surprising. 

Another manifestation of this nation-building is the country's young capital, Astana. Awash with futuristic architecture, Astana, meaning “capital” in Kazakh, certainly gives the sense of a purpose built capital. Naming the capital after Nazarbayev himself, the most popular alternative after "Astana", reflects the President's centrality in this creation of a national brand. 

The Bayterek monument and observation tower in Astana is one of the most spectacular expressions of this nation-building. 105m in height, enormous white girders branch out like arms of a tree to support a 22m wide golden sphere. The structure symbolises the ancient Kazakh folktale of a mythical tree of life in which a magical bird lays an egg containing the secrets of happiness. An observation deck inside the golden "egg" offers a panorama of Astana's skyline, dominated by President Nazarbayev's sumptuous presidential palace. After soaking up the view, visitors are invited to place their palms in a gilded hand print of Nazarbayev and make a wish. 

Another example of Astana's cutting-edge architecture is the Khan Shatyr shopping centre. Alongside its own flume ride and a 500m long monorail, the centre also boats of an artificial beach, complete with sand straight from the Maldives. The centre's yurt-like silhouette can be seen, like the Bayterek monument, as part of the deliberate fusion of neo-futurist innovation and ancient Kazakh tradition that is key to the national "image" sculpted, from above, by the Kazakh government. 

You need only drive a few kilometres out of the city, before the utopian skyscrapers and shiny glass structures come metaphorically crashing and crumbling down and you are confronted with the crushingly flat, undeveloped, expanse that characterizes most of Kazakhstan's remaining landscape. 

With such disparity between city and provincial life and between standards of living for ordinary citizens versus government leaders, the question arises of to what extent Kazakhstan's top-down nation building is in fact based around the needs, desires, and traditions of the Kazakhstani people.  

India and Pakistan: From Bad to Worse

Saim Saeed

The South Asian press these days is dominated by good news about the India-Pakistan relationship. Geeta, as the local press calls her, is a deaf and mute Indian woman who spent the last decade stranded across the border in neighboring Pakistan. Recently, she was repatriated from Karachi, Pakistan, to New Delhi, where she was received by the Indian foreign minister Sushma Swaraj herself. “I thank the government of Pakistan from my heart,” she said. Geeta’s story gained attention because it resembled the plot of a Bollywood summer hit, Bajrangi Bhaijaan, in which the lead, an Indian man, tries to reunite a mute Pakistani girl stranded in India with her family back in Pakistan.

Amid the celebration and self-congratulation, one can almost forget just how terrible relations between the two nuclear powers actually are. It is an unfortunate fact that only the handshakes between heads of state, the exchange of sweets at the border, and stories like Geeta’s actually end up making the news. The status quo – constantly being on the brink of war – seems to merit less attention internationally and at home. Since India’s independence and violent partition in 1947, which carved out India and Pakistan as two different polities, the two countries have fought multiple wars with each other and countless skirmishes. Such conflicts tend to emerge over the disputed region of Kashmir, which both countries claim as a part of their territory. This is to say that at no point have relations between the two countries actively been ‘good’, but in recent years they have become even worse.

‘Epicentre of Terrorism’

In Pakistan, the military plays a dominant role in politics and it insists on portraying India as the enemy, partly as a justification for its inflated operational budget. Even token measures by the civilians to better relations with India – a process they call ‘normalisation’ – are rejected. For years, Pakistan has tried to ratify an agreement that would grant India ‘most favoured nation’ status, allowing for more goods to be traded. In a bid to make it sound less threatening, they renamed it ‘Non-discriminatory Market Access’, but that still did not help. Under pressure from the military, the Pakistani ambassador to India backtracked on the proposal and scuttled the agreement.

In 1999, there was a historic meeting between then (and current) Pakistani prime minister Nawaz Sharif and Indian prime minister Atal Behari Vajpayee in Lahore, Pakistan, which claimed to herald a new era of friendly relations. Unknown to both Sharif and Vajpayee at the time, former Pakistani army chief Pervez Musharraf had launched a covert operation in Kashmir near the town of Kargil, cutting off Indian access to roads and communication. What followed was an intense battle with thousands of casualties and the threat of nuclear war. For good reason, then, India is sceptical of Pakistan’s commitment to normalisation.

India also argues that it has found very little evidence of Pakistan’s commitment to combat terrorism, which, it argues, is a prerequisite for dialogue. Hafiz Saeed is the leader of the Lashkar-e-Taiba, a militant organisation that frequently targets India, most notably during the attacks in Mumbai in 2008 which killed 166 people. Saeed walks freely in Lahore under government protection despite a $10 million bounty on his head. Another militant, Zakiur Rahman Lakhvi, known as the ‘mastermind’ of the Mumbai attacks, oscillates between detention and probation as a lackadaisical prosecution dithers over his case. Meanwhile, suspected cross-border attacks in India continue, including an attack in July this year on a police station that killed 10 people in Indian Punjab, close to the border with Pakistan. The former Indian prime minister Manmohan Singh called Pakistan the ‘epicentre of terrorism’ at the UN General Assembly in 2013, and from India’s perspective, it is still true today.

India’s ‘Muscular’ Foreign Policy

Pakistan’s troubles with militancy are not new, and it argues that a negotiated political solution to end tensions is only possible if both countries continue to engage in discussions. Under India’s new prime minister Narendra Modi, that has never seemed less likely. During his time in the opposition, Modi accused India’s former Congress-led government of being ‘soft’ on terror and on Pakistan, and promised a ‘muscular’ foreign policy once in government. He has delivered. Since his ascension to power a year ago, cross-border skirmishes have increased, and so have the number of casualties on both sides, forcing villagers to evacuate from their homes. For Modi, peace with Pakistan is not a priority. Even token gestures like the annual sideline meetings between Indian and Pakistani leaders at the UN General Assembly did not take place this time despite Pakistan’s eagerness. The Indian government also cancelled high level talks scheduled for this August, accusing the Pakistani government of meeting Kashmiri leaders, a traditional practice that had never precluded talks before.

Modi’s own foreign policy aims to elevate India to a higher global status. He has reached out to affluent Indian diaspora communities all over the world, including Silicon Valley, in an effort to attract talent and capital back to India. He has prioritised military and economic competition with China, multilateral trade with Southeast Asian economies, not unlike the United States’ Trans-Pacific Partnership agreements, and greater investment in defence expenditure and military technology. In essence, having seen the costs India has incurred by being bogged down by regional politics, Modi aims to transcend the region itself.

But two factors prevent him doing so. First, and due to his deliberate inattention, regional security has deteriorated. Since December 2014, when the Taliban attacked on a school in Peshawar that killed 150 people, mostly children, Pakistan has been able to mobilise both public opinion and its military against terrorism. The fallout from the military operation currently going on in Pakistan’s tribal areas is yet to be fully understood, but both India and Pakistan, as demonstrated time and again, are vulnerable to further attack. The potential disintegration of the border ceasefire may escalate, and with such trigger-happy militaries straddling the border, calm, effective leadership is essential. Token gestures like announcing a $10 million reward via Twitter to the Pakistani foundation that housed Geeta (they subsequently refused to accept) is not sufficient. War, never far away in South Asia, may actually be a product of his negligence.

Second, communal tensions between India’s Hindu and Muslim communities have risen under Modi’s leadership. These tensions risk both its relations with Pakistan as well as India’s standing abroad. As the leader of a right-wing Hindu nationalist party, Modi’s record as a custodian of Indian secular values is poor. It was under his watch as chief minister of Gujarat in 2002 that communal riots killed more than a thousand people, mostly Muslims. Although the courts absolved him of any crimes, he has refused to take any responsibility for the violence. As prime minister, Modi oversaw a beef ban in the populous state of Maharashtra, which has a sizeable Muslim community. It is a contentious issue, since cows are sacred in Hinduism, but their slaughter serves religious purpose in Islam. In recent months, Muslims have been lynched by Hindu mobs for allegedly keeping beef in their homes. Since Pakistan was founded as an answer to the perceived persecution of India’s Muslims, both its leaders and citizens would be far less eager to engage with a government that treats Muslims badly (Pakistan’s own atrocious record of protecting its Hindu citizens notwithstanding). Alleged crackdowns on the media, writers, publishers and comedians have also raised concerns over free speech. Reports of human rights abuses against marginalised castes and activists in Kashmir and the northeast are also ever-present. Touted as ‘the largest democracy in the world’, that moniker looks increasingly tenuous.

Not Just a ‘Sibling Rivalry’

All of this is to say that the India-Pakistan relationship matters, and leaders of both countries have clearly not done enough to salvage it to prevent an escalation of conflict, if not anything else. At present, neither side seems interested in doing that. Because bad relations have always been the status quo, citizens and politicians of India and Pakistan – as well as the international community – has always just accepted it. Some observers also believe that since both have the nuclear bomb, they will not fight a war because of the deterrent. The problem is that has proven to be empirically untrue. The Kargil war took place after both countries conducted nuclear tests, and was close to becoming nuclear. Given the stakes, the blasé attitude that South Asian politicians and the international community has towards India-Pakistan is criminally negligent. Belittling the conflict by calling it a ‘sibling rivalry’ is not just condescending, it also obfuscates the gravity of the security threat faced by the billion and a half people who inhabit the Subcontinent. Those people deserve greater efforts to live free from the fear of nuclear war.

Paris Climate Conference

The Paris Climate Conference begins today, a landmark event with participation expected to exceed 40,000 people and 147 heads of state or government, significantly more than the roughly 115 who attended the previous attempt at a global climate deal at Copenhagen in 2009. Climate data from this year suggests that a global rise in temperature of 1ºC, already halfway to the 2ºC maximum set by a consensus of climate scientists, has now taken place, and protests against government inaction have already begun.

Can hopes of a new deal on climate change be fulfilled, or will the conference lose momentum? Will the US and China, long accused of dragging their feet over environmental policy to safeguard economic growth, take a leading role? Whatever your view, send it in - via Twitter, Facebook or our website. The contributors with the best insights will be invited to explore their views further for our journal Sir!

Increased Middle East Intervention

In the past week Western nations have ramped up the intensity of their attacks on Da'esh, with France increasing its air strikes and David Cameron pledging to also strike Da'esh positions in Syria. Meanwhile, further gains have been made by resurgent Assad regime forces, backed by Russian air strikes.

Is the Western response the right move at this time - and is it strategically motivated, or an emotional response to the recent terror attacks? Will closer intervention in Syria lead to co-operation with Assad, or further tensions with his sponsors in Russia? Whatever your view, send it in - via Twitter, Facebook or our website. The contributors best insights will be invited to explore their views further for our journal Sir!