11/18/2020 The Nagorno-Karabakh Region Conflict: Are We Underestimating the EscalatingTensions?Read NowThis article has been authored by Mohd Rameez Raza, a fourth-year student at Faculty of Law, Integral University, India pursuing B.B.A., LL.B. (Hons.) course and Raj Shekhar, a second-year student at National University of Study and Research in Law, India pursuing B.A., LL.B. (Hons.) course. This article was originally published in the Oxford Political Review.
“All war is a symptom of man's failure as a thinking animal.” - John Steinbeck It’s been almost a century since the bloodiest war to ever have been fought in the history of mankind concluded. The First World War which began as a relatively small conflict in South- East Europe became a war between European empires and shook the very cores of humanity. Probably, the history seems to be repeating itself, for the same shimmering could be witnessed today in the Nagorno-Karabakh region, where the forces of Armenia and Azerbaijan have both declined to cool down the military standoff. While the military unrest in the initial stages was quite localized and more of a regional conflict, things have quickly escalated with Turkey lending its support to Azerbaijan, owing to the ethnic background and the Muslim majority population of the country. Though Armenia, a Christian dominated state, is itself a part of a security alliance with Russia, unlike Turkey, the Russians have largely remained low and opaque with Russia continuing to deal in arms with both the conflicting nations alike. Even after being regional in nature, the conflict has drawn in the regional rivals like Turkey and Russia, and has become a major source of concern for the world at large. This article tries to unfold the deep-rooted conflict over the Nagorno-Karabakh region and tries to analyze the overall effect of this grave conflict over the contours of International peace. The Nagorno-Karabakh Region: Why are Armenia and Azerbaijan at conflict? The frictions between the Christian-majority Armenia and Muslim-majority Azerbaijan is not a novel development and has continued for centuries. However, religion does not play any role in the present modern-day conflict, but the major blame for the divide rests with Joseph Stalin. The former Soviet leader had placed the majority-Armenian region of Nagorno-Karabakh into Azerbaijan after the conquest of Caucasus by the Red Army in the early 1920s. When the Soviet Union began to collapse in the late 1980s, Armenia’s regional parliament voted for the region’s transfer to Armenia; the Soviet authorities turned down the demand. As a reaction to such denial, the ethnic Armenians in the region declared independence in 1991 leading to a war between Azerbaijan and the Nagorno-Karabakh Armenians, who had the constant backing from Armenia itself. The war continued and by 1994 the Armenians had succeeded in driving the Azerbaijani army from their territory and large surrounding swathes of land. Even after the fact that Nagorno-Karabakh is virtually independent from Azerbaijan’s control, no country considers the territory an independent country — not even Armenia, which also hasn’t formally annexed it but supports the region financially and militarily. As a result of this non-recognition, the region Nagorno-Karabakh at present is internationally recognised as part of Azerbaijan, but most of the region is controlled by Armenian separatist forces. Escalating Tensions: Why have things taken a turn for the worse? It cannot be denied that the Nagorno-Karabakh region was always ripe for a local conflict. However, in the past Russia and Turkey had time an again cooperated to tone down tensions. The settlement which was reached 26 years ago, was a temporary one and had left about 600,000 Azerbaijanis stranded away from their homes and Nagorno-Karabakh vulnerable to attack by Azerbaijan, as it even to this day considers it as part of its own territory. In Armenian revolution has in 2018 ushered in a new generation of leadership and raised hopes towards the resolution of the Nagorno-Karabakh conflict. However, the aspirations have since the dwindled, with Armenia’s Prime Minister, Nikol Pashinyan, taking a firm and in the eyes of Azerbaijani leaders, provocative line on the issue. The current pandemic and the crashing markets have taken a toll on the price of Azerbaijani oil and gas, and perhaps the separatists have enchased on this opportunity to expand their domain of control as per the words of Laurence Broers, the Caucasus programme director at Conciliation Resources, a peace-building group. Another major reason for the escalating tensions and involvement of powerful international players is the growing economic and military strength of Azerbaijan, which is a major oil exporter. The local fight has till-date claimed the lives of almost 150 people and has started to draw in the regional powers of Russia and Turkey. Of late with the exit of US from Middle-East, the co-operation between these two states in the Middle East have changed from a co-operative one to a highly assertive one. The sparks threaten to ignite the present local conflict too, as Turkey has already thrown its open support to its ethnic ally Azerbaijan. Though, the Russians have still saved their cards, it is pertinent to note that they already share a security truce with Armenia and hence, the stillness is not expected to last long. All the diplomatic relations, the oil scavenging nature of the west, economic scenarios and the deeply rooted religious issues have equally contributed to the escalating tensions, which are at their highest since the early 1980s. Is the History repeating itself? Regional conflicts growing into full-blown global wars isn’t something new for the world. We have already witnessed two major world wars which began as small conflicts and later on shook the very foundations of humanity. The present case and the growing tensions have already laid the foundation for a global conflict. With civilian casualties involved, it’s just a matter of time before the international organizations get themselves involved in the issue at hand. The South Caucasus is very crucial from the point of view of gas and oil supply from Azerbaijan into Turkey and further to Europe and other world markets. With Azerbaijan being a key supplier and regulating almost 5% of Europe’s gas and oil demands, which has in turn had reduced the EU’s dependence on Russia, the fight coming close to a number of these pipelines is an alarming development, as wars for resources have always been a pre-cursors for such world wars. With the growing tensions and the over-assertive attitude of both, Turkey and Russia, in the Middle East, we have again reached a juncture where appeasing of either of these nations is not an option, but rather a staunch call for co-operation is the need of the hour. Time and again the peace talks between the two nations of Azerbaijan and Armenia have failed, sometimes owing to the lack of intent from the mediating parties, and at other times from circumstances like the 9/11 attacks which backtracked the US attempts at reinstating peace. At a time when Turkey is exhibiting signs of religious majoritarianism and Russia is all bent towards asserting itself in the Middle East, these two small nations can easily become the bait for the larger fish of a global warring crisis. The situations have deteriorated to such an extent that a mere regional conflict and reinstatement of the bitter relations yet again over Nagorno-Karabakh Region is the best alternative that we can expect as of now. Further, though neither Turkey nor Russia have directly involved themselves into the conflict and have so far restricted themselves to only official rhetoric, the continuous arms supply by Russia and the open support by Turkey in favour of Azerbaijan needs to be checked. It’s high time that the international community works in a constructive way towards pacifying the existing conditions in the Middle East. As a first step towards this ‘greater good’ what could be a better starting stage than the centuries-old rivalry and the modern-day conflict over the Nagorno-Karabakh region.
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11/11/2020 A Curious Case for Individual Criminal Responsibility: The Yekatom and Ngaïssona Confirmation of Charges DecisionRead NowThis article is authored by Mansi Avashia, a fourth-year student pursuing B.A.LL.B. (Hons.) at Gujarat National Law University. The International Criminal Court [“ICC”] opened its second situation in the Central African Republic [“CAR”] in September 2014. The first case to arise from the Prosecutor’s investigation was decided by the Court on December 20, 2019, when Pre-Trial Chamber II [“PTC”] confirmed the charges against Alfred Yekatom and Patrice-Edouard Ngaïssona. It was found that there was sufficient evidence to indicate that the ‘substantial grounds to believe’ standard under Article 61(7) of the Statute was fulfilled for most of the charges. This post will critically examine the PTC’s assessment of co-perpetration under Article 25(a) of the Rome Statute and the stance taken by the Chamber on cumulative charging under the various modes of responsibility laid down in the Statute.
The Office of the Prosecutor’s Submissions The main allegation of the Office of the Prosecutor [“OTP”] was premised on the existence of two common plans- a strategic common plan and an operational common plan. The strategic common plan aimed at regaining CAR’s ousted President Franҫois Bozize’s power. For this purpose, they employed existing self-defence groups also known as ‘Anti-Balaka’. They were trained to oppose the Seleka, a political group predominantly consisting of Muslims which had played an important role in overthrowing President Bozize. According to the OTP, the strategic common plan had an ‘element of criminality’ because the Anti-Balaka had been mobilized against the Seleka and Muslims in general, and thus in the ordinary course of events, the Anti-Balaka would commit brutalities against the Muslim population in CAR. The operational common plan was focused on targeting Muslims, who were perceived to be a part of/supportive of the Seleka due to their religious or ethnic affiliations. The OTP argued that both the plans had different goals but they employed identical means. Further, the members of the Strategic Common Plan wanted to exploit the crimes committed by the members of the Operational Common Plan. As a result of this, the acts of the Anti-Balaka groups in pursuance of the Operational Common Plan were attributable to the members of the Strategic Common Plan. Ngaïssona, a close aide of President Bozize, participated in the Strategic Common Plan. The OTP claimed that he had made an essential contribution by developing and implementing the Strategic Common Plan and charged him as a direct co-perpetrator, assisting, or common purpose liability under Article 25(3)(a), (c) and (d) respectively. Yekatom was a leader of one of the Anti-Balaka sub-groups and hence was charged as a direct and indirect co-perpetrator, ordering/soliciting/inducing, assisting, or common purpose liability under Article 25(3)(a), (b), (c) and (d) and as a military commander under Article 28(a) for failing to prevent the crimes committed by his sub-group. Assessment of Article 25(A) by the PTC Article 25(3)(a) encompasses three modes of responsibility: direct perpetration, co-perpetration and perpetration by means. The Court has laid down that to prove co-perpetration, certain objective and subjective elements have to be fulfilled. The objective elements are the division of criminal tasks, pursuant to a common plan or agreement and coordinated essential contribution by each co-perpetrator. For the subjective elements, the co-perpetrators must be aware of the factual circumstances and must mutually accept and be aware and that implementing the common plan may result in the fulfillment of the objective elements of the crime. Common Plan Requirement In paragraph 60 of the decision, the PTC has laid down that ‘the common plan may be one of the shapes taken by a criminal agreement and that, despite its apparent ubiquity, the very compatibility of the notion of a common plan with the statutory framework and its usefulness vis-à-vis article 25 of the Statute is far from being a foregone conclusion’. This finding is rather strange since the existence of a common plan as an objective element of co-perpetration under Article 25(3)(a) has been well established since the very first decision by the ICC (Lubanga Confirmation of Charges, para. 343). Further, it has been a recurring theme in ICC jurisprudence. It has been upheld in the confirmation of charges decisions of, inter alia, Blé Goudé, Ongwen, and Bemba. The Lubanga Appeals Chamber decision, which the PTC relies on in this case, has held that "it is this very agreement […] that ties the co-perpetrators together and that justifies the reciprocal imputation of their respective acts.” A person who contributes to a group crime without having agreed to do so cannot be held vicariously liable for the perpetrator’s acts and, at the most, may be an accessory to the crimes. The PTC’s finding departs from a settled position of law, and the judges do not throw any light on what they consider as the requisite co-perpetration elements. In the decision, the PTC relies on the Lubanga Appeals Chamber judgment, Judge Fulford’s and Judge Van Den Wyngaert’s dissenting opinions in the Lubanga Trial Chamber judgment and Katanga Regulation 55 decision respectively. However, it is safe to say that the PTC’s findings are misplaced since the dissenting opinions do not accept the ‘control over the crime’ theory which requires ‘essential contribution’ to prove responsibility under Article 25(3)(a). Both the judges have retained the common plan requirement in their understanding of co-perpetration under Article 25(3)(a) (Separate Opinion of Judge Adrian Fulford, para. 16 and Minority Opinion of Judge Christine Van Den Wyngaert, footnote 261). Cumulative Charging It was found that Yekatom was responsible under Article 25(3)(a) as a co-perpetrator or an indirect perpetrator, or under Article 25(3)(b) for ordering the commission of the war crimes and crimes against humanity. The PTC found it ‘unnecessary’ to establish his responsibility under Article 25(3)(c) and (d). Ngaïssona’s responsibility for some of the charges was confirmed under Article 25(3)(c) as aiding, abetting or otherwise assisting; or as ‘any other contribution’ as under Article 25(3)(d)(i) or (ii). As mentioned above, the OTP had resorted to cumulative charging for both Yekatom and Ngaïssona. In the Document Containing Charges, they submitted that all modes of liability should be accepted by the PTC so as to not restrain the Trial Chamber. For instance, in the event the defendant was charged only under Article 25(3)(a), but the Trial Chamber found that he could be imputed under Article 25(3)(b), the PTC’s decision would restrict them. This approach was adopted by the PTC in the Ongwen decision where it was laid down that alternative charges should be confirmed by the PTC for the Trial Chamber to determine the applicable standard of proof at trial. In fact, this stand has been taken in various previous decisions, such as Al Mahdi, Ntaganda and Blé Goudé, where the PTC confirmed the charges for all modes of responsibility as there was sufficient evidence to indicate the same. This approach has also encompassed in the Chambers Practice Manual (para. 67). However, in the present case, the PTC has not given any justification for denying the cumulative charging, apart from finding it ‘unnecessary’. The PTC should have discussed how the OTP’s evidence was insufficient to prove all the charged modes of responsibility. Conclusion In the pre-trial proceedings, the judges need to ensure that the charges are clearly stipulated and supported by the evidence before the matter is determined by the Trial Chamber. This can make the case much simpler for the OTP and the defence. However, the PTC’s findings on co-perpetration responsibility and alternative charging in the Yekatom and Ngaïssona’s confirmation of charges decision do not provide any clarity to any of the concerned parties. The decision showcases a departure from well-established jurisprudence and poses as a confusing precedent. It is highly probable that these matters will be raised by the OTP before the Trial Chamber, thus resulting in more expensive and lengthier proceedings. This article is authored by Abhijeet Shrivastava, a third-year student pursuing B.A., LL.B. (Hons.) at Jindal Global Law School.
Background In a recent blog-post on this forum, Manav M. Bhatt had made several compelling arguments concerning potential violations of international environmental law (“IEL”) and international humanitarian law (“IHL”) by China during the June 2020 Galwan Valley stand-off. The People’s Liberation Army (“PLA”) had made artificial alterations to the landscape of the valley (visible from satellite images) by widening tracks, moving earth, and making river crossings - possibly also impacting the course of the valley river in an attempt of damming (see here and here). The object of these activities was to create greater space to amass the PLA’s troops. Manav argues that the PLA’s activities indicate not only IHL violations, but also IEL treaty violations - as IEL continued to apply during the international armed conflict (“IAC”) that arose between India and China during this episode. While I agree with most of Manav’s contentions, I opine that the co-applicability of IEL norms with IHL obligations during armed conflicts cannot be taken for granted. In fact, it continues to be a debate without clear answers. Thus, this piece seeks to revisit some of Manav’s claims concerning potential IEL norm breaches, specifically to highlight the nebulous position of international law in this regard. The Question Of Continued Applicability Manav argues that the World Court’s remarks in its Nuclear Advisory Opinion (1996) support the proposition that IEL continues to apply during IACs (except if there are inconsistencies, in which case, IHL would prevail as the lex specialis). This premise must be tread with caution as it is mostly speculative, given the judgment’s equivocality. In terms of jus ad bellum, the court held that Multilateral Environmental Agreements (“MEA”) do not ipso facto cause a “total restraint” over states’ inherent right to self-defence. Nonetheless, it observed that “environmental considerations” must be accounted for in determining if measures of self-defence are “necessary” and “proportionate” in responding to an armed attack (¶30). In essence, while IEL cannot directly restrain a state from using force in self-defence, the existing limits on this right must be assessed keeping IEL in mind. It reasoned identically for when an IAC arises, commenting that “important environmental factors” must be accounted for in implementing the “law applicable in armed conflict” (¶33) [emphasis added]. In reaching this conclusion, the court recognised the irreconcilably divergent views of states on whether MEAs apply outside peace-time (¶¶27-28). Consequently, these somewhat elusive remarks can be taken to mean that environmental factors are relevant in applying IHL, and not necessarily that IEL applies concurrently with IHL. This approach to IEL principles as an interpretative aid (wherever appropriate) in applying treaties unrelated to environmental protection has been confirmed by other tribunals (¶452). Interestingly, the International Law Commission’s (“ILC”) Draft Articles on the effects of armed conflicts on treaties (2011) suggests that no MEA can be suspended during armed conflicts [Annex(g.) to Draft Article 7]. However, the ILC too, in its commentary to this provision, caveats that there is presently no agreement between states on this question (¶55). Given this, the International Committee of the Red Cross’ view cited by Manav that MEAs “may” continue to apply during IACs must be understood as a possibility and not a guarantee. Explicitly versus Silence The reason that the question of continued applicability of MEAs arises is that states can generally invoke the ground of a “fundamental change of circumstances” from when the treaties were concluded (i.e., rebus sic stantibus) to suspend their operation during IACs. Similarly, “necessity” as a ground to preclude the wrongfulness of their actions can potentially be claimed during IACs. Thus, the only situation where it is clear and uncontroversial that MEAs continue to apply during IACs is when the MEAs themselves provide for their application during armed conflicts, as pacta sunt servanda would restrain states from claiming these defences against wrongfulness. This applies vice versa where MEAs provide for their non-application during IACs. The general presumption, as noted by the ILC, is that if state parties had foreseen such fundamental changes in circumstances, they would have provided for it “in a different manner”. For instance, Article 9 of the Convention on Third Party Liability in the Field of Nuclear Energy (1960) states that operators shall not be liable for damage caused by a nuclear incident directly resultant from armed conflicts. Regrettably, almost all other MEAs are silent on their continued applicability during IACs, thus leading to this debate. This is the case with several of the MEAs cited by Manav to establish an IEL breach in terms of ‘trans-boundary harm’, i.e., the Convention on Biological Diversity (1992), the Convention on the Protection and Use of Transboundary Watercourses and International Lakes (1992), and the Stockholm Declaration (1972). Given this silence, how can one assess their potential continuity during the IAC between China and India? Theories Of Continued Applicability And Galwan Valley i. Classification Theory The United Nations Environment Programme in a report published in 2009 (“UNEP report”) recognised at least four distinct theories of continued applicability. The first is what’s called the “Classification” theory, an extensive account of which was produced by the learned Silja Vöneky. This theory classifies eight groups of treaties which are not suspended during IACs, one of which refers to “human rights treaties”. Vöneky argued that the Convention of Biological Diversity (and by implication, similar MEAs) was “sufficiently analogous” to a human rights treaty because of its detailed schemes for environmental protection. This is since these MEAs primarily aim to protect global environmental resources, which are a “common good” (UNEP report, p. 44). That the other aforementioned MEAs also seek to protect such “common” interests is unquestionable, as this very language can be located in their preambles. Thus, adopting the Classification theory ensures that the protection offered by all the key MEAs highlighted by Manav continues, despite IACs arising. ii. Combining Classification With Intent The Classification theory has been criticised for being too simplistic by not accounting for the original intent of MEAs on whether they are to apply only during peace-time. This shortcoming was considered by Boelart-Suominen’s combination of the Classification theory with the traditional “intention” theory. Suominen acknowledged that in several cases, MEAs would not clearly fit any of the categories envisioned in the Classification theory. In such cases, she argued that recourse must be had to the intent of the MEAs, assuming that a “clear and consistent” intent could be located (UNEP report, pp. 44-45). Thus, this approach strikes a balance between ensuring continuity of treaties, while admitting that in some cases continuing the effectiveness of these treaties could be incompatible with an IAC. With respect to the MEAs cited by Manav, it is difficult to argue that such an intent is “clear and consistent”, owing to their silence on this question, and as there are strong disagreements as regards the continuity of these MEAs between states [Nuclear Advisory Opinion (supra)]. In short, continued applicability of these MEAs may be unlikely under the classification-cum-intent theory. iii. The Sliding Scale Theory The third theory is that of the “sliding scale”. This theory admits that IEL norms continue to apply during IACs, but posits that their applicability has an inverse relationship with “military necessity”, meaning that the effect of IEL decreases with increasing military necessity (UNEP report, p. 45). Military necessity means that armed forces can do whatever is “necessary” to achieve their legitimate military purposes. The only such purpose in IHL is weakening the military capacity of the enemy state, provided that this is not otherwise unlawful under IHL. Manav argues that the PLA’s activities violate Article III of both the 1993 agreement and the 1996 agreement between India and China to further peace at the LAC, which provide that both sides shall limit their troops at the LAC. Thus, he contends that these activities are not exempted as militarily necessary. This is debatable since, as mentioned, such acts are not permitted as militarily necessary specifically if they violate any IHL provisions; whereas the bilateral obligation to limit their troops is not a jus in bello obligation, and instead concerns jus ad bellum. This is because, first, it applies equally outside IACs (before they arise), i.e., during peace-time. In fact, some obligations in these agreements, such as informing the other side before conducting military operations near the LAC, seem specifically tailored to peace-time. Second, the preambles of both the agreements refer to the “use of force”, whereas any references to duties governing IACs is absent. Thus, the PLA’s activities may be unlawful under these agreements, but whether this unlawfulness amounts to unlawfulness under IHL seems unclear. Consequently, damaging the environment to amass the PLA’s troops could be militarily necessary as it seeks to weaken India’s military capacities, which under this theory would lead to non-continuity of the MEAs. iv. The Theory Of Differentiation The last major theory, and the one I find the most compelling, is the theory of differentiation expounded by Michael Schmitt (UNEP report, p. 45). Schmitt argues that the “survivability” of IEL treaties must be tested against five contextual standards, of which one metric is the most relevant here. States can claim “fundamental change of circumstances” to suspend MEAs during IACs, only if the application of the MEAs during peace-time had been the “essential basis of agreement”, as per Article 62(1)(a) of the Vienna Convention on the Law of Treaties [(1969) “VCLT”]. Schmitt interprets this to be the case, only if compliance with the MEAs would hamper effective combat operations. Seen as thus, the MEAs’ breaches claimed by Manav against China may not be valid, as the application of these agreements would hinder China’s military operations. However, and importantly, Schmitt qualifies this by adding that the change of circumstances must not be the result of that very party’s breach of any of its international obligations, as per Article 62(2)(b) of the VCLT. As I have established elsewhere, it was China’s incursions into what was understood to be Indian territory beyond the LAC that gave rise to an IAC in the Galwan Valley stand-off. China’s intrusions into Indian soil violated the prohibition on the use of force under Article 2(4) of the United Nations Charter. Thus, since the IAC, i.e., the fundamental change in circumstances was caused owing to China’s breach of Article 2(4), it cannot claim rebus sic stantibus, and the MEAs discussed earlier would indeed continue for China. This contextual factor of Schmitt’s theory reflects the existing position of law since it is based on well-recognised principles codified in the VCLT. Given this, I conclude that the MEAs cited by Manav continued to bind China during this IAC, and the breaches Manav claims are thus valid. Concluding Thoughts There are immense differences in perspectives of continued applicability of MEAs highlighted in this post, and strong disagreements between states on this front. There is even less clarity over a question unexplored in this post, i.e., the potential continued applicability of customary IEL norms during IACs. These regrettable uncertainties cement the idea that IHL has thus far been inherently anthropocentric (centred around humans), offering little heed or protection to the environment or ecology. It is encouraging to note that, in the past decade, the ILC and the United Nations General Assembly have grown more attentive to filling these lacunae and have advocated for the continued application of robust IEL frameworks during IACs (see here and here). Whether these efforts will fruition depends entirely on states’ commitment to realise the urgency of mitigating the horrors of armed conflicts against the environment, which is already suffering from worsening climate change. More urgently, I reaffirm the growing sentiment that peace must be restored to the Galwan Valley at the earliest, and pray that India and China are able to amicably resolve this stand-off soon, lest it escalates beyond recovery. This article is authored by Manvee Kumar Saidha, a fourth-year student pursuing B.A., LL.B. (Hons.) at School of Law, Christ University.
Introduction Reservation, in general parlance, is the decision of a State to not abide by some of the provisions of a treaty upon ratification. In other words, it is a declaration made by a state by which it purports to exclude or alter the legal effect of certain provisions of the treaty in their application to that State. The term is defined under Article 2.1 (d) of the Vienna Convention on Law of Treaties, 1969 (VCLT) to mean “a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State.” Other apropos provisions have been accommodated in Section 2 of the VCLT under Articles 19 to 23. The introduction of this provision may be extrapolated from the fact that ‘free consent’ and ‘good faith’ have been identified as universally recognized principles, which guide international treaty law. However, some Articles, to counter the ‘carte blanche’ that reservation might offer, establish certain inherent restrictions. For instance, Article 19 provides that reservation is permissible except in cases where - the treaty itself prohibits it, the treaty permits only certain reservations not including the one intended by the State, or where the reservation sought is incompatible with the very object and purpose of a treaty. Article 20enumerates the situations wherein subsequent acceptance by other contracting parties is required for reservation. Intentions aside, the provision of reservation itself remains dubious in international law and in this light, the article analyses the intriguing conundrum that it presents. The author argues that while reservation has its benefits, it also acts as an impediment to an already fragile international law regime – thereby making reservation a ‘double edged sword’. Reservations: an invitation to involve? The chief motivation that the recourse of reservation offers is that it affirms the self-determining nature of State participation. As Professor Bishop emphasized, “the fundamental basis remains, that no state is bound in international law without its consent to the treaty. This is the starting point for the law of treaties, and likewise for our international rules dealing with reservations.” Further, the other reasons that States employ reservation involve socio-political and economic inclinations. To illustrate, in case of dualist nations, a State may have constraints with respect to their domestic law. This includes hesitation on two accounts – firstly, where there is a procedural or substantive conflict with the municipal law; or secondly, where States maintain higher standards of civil and political rights as compared to that provided in the treaty and do not wish to lower their standards for the sake of uniformity. Thus, reservation affords a State the opportunity to resolve a judicial dichotomy, if any, and proceed with ratification. Another extension of this flexibility is that greater State participation can be secured. This is implicit from the key prerogative that reservation offers, i.e. exclusion. Mindful of the fact that each nation differs in variety of ways – social, political, religious, economic, etc. – it is only obvious that as opposed to a rigid scheme of obligations, States are likely to lend greater cooperation where a constructive-balance can be achieved between domestic and international interests. This optimistic reflection of reservation is based on the assumption that contracting States are desirous of implementing the object of a Convention, and in reservation, they are guided by the compatibility (or its lack thereof) with their respective domestic interests. This thereby enhances State participation by allowing parties to induce obligations in an accommodative and acceptable manner. In the long run, this translates to greater contribution towards international efforts. Reservations: delaying, deviating and debilitating international law? Au contraire, when a party exercises reservation while signing a Treaty, it dilutes the essence of the treaty while simultaneously complicating inter-state reciprocity. This is so because while the provision is meant be a safe harbor for genuine legal incompatibilities, there can be no distinction drawn for when reservations are made on account of show of economic power or political manipulation. International relations are dynamic and diplomatic communications are likely to affect the way treaties are perceived by a State. Intangible determinants such as strategic benefits, reputational costs, comparative politico-legal circumstances and position relative to non-reserving states – all factor into a State’s consideration, of which reservation becomes a consequence. Another unpleasant consideration is that (as it is) international law lacks a secure sanction. Every aspect of this regime – from the ratification of a treaty to being bound by the International Court of Justice’s (“ICJ”) jurisdiction is driven by will and consent. Without going into the merits of a consent dependent system, the additional liberty to ‘pick and choose’ suitable provisions through reservation simply dilutes the pith of any treaty. It also becomes pertinent to note Linda Keller’s observations at this juncture, which explain how States use reservations as a means to achieve various (other) ends, and become parties to conventions without truly obligating themselves to achieving the stated goal. Various scholars, for instance, recognize that the International Human Rights Regime stands threatened by the numerous exclusions made by parties, which primarily present the issue of limitation of human rights obligations. Moreover, when a party chooses to reserve certain provisions, it initiates a rather vicious and time-consuming cycle of events. This is because from the point of departure itself a series of events – constituting objection, justification, validation by other contracting parties, legal objections (if any) and proceedings – delay the implementation of multilateral treaties. And till the point where such contradiction is resolved and at least one other contracting State or contracting organization accepts the reservation (the decision of which is again shadowed by political reactions to the reservation made), the party is not rendered a ‘contracting party’. Portugal, in its Governmental Comment observed that this practice could represent at least a twelve month delay. In certain cases, such as in case of the Mahakali Treaty, reservations have also lead to differences in understanding provisions thereby resulting in non-implementation despite decades of enforcement. Prolonged periods lost in such procedural dissensions The case of Loizidou vs Turkey may be noted here. Though predominantly known for European Court of Human Right’s decision to hold that the reservations made by the parties was not in consonance with the Convention for Protection of Human Rights and Fundamental Freedom; another point can be emphasized in the present context –s the fact that this case was first referred to in 1993, while the judgment was delivered only five years later i.e. in 1998. Even when India made a reservation with respect to ICJ’s jurisdiction to hear disputes in reference to the Genocide Convention, it restricted the very administrative aspect that intended to uniformly subject States to ICJ’s jurisdiction. Though one may argue that monopoly in competence to adjudicate was not the ‘object and purpose’ of the treaty, and the reservation is therefore valid; the provision served an undeniably significant purpose by ensuring that at least the adjudicating authority would be pre-determined in case of violations. This would in turn shift focus to resolving the larger question of human right violations in a timely manner. However, now, in the hypothetical event that a dispute arises, every such reservation made will invite unnecessary fall-out and generate deadlocks, before the deliberations move to actual justice delivery. Conclusion From a purely calculative standpoint, it is certainly more desirable if a treaty attracts greater participation, albeit the detail that it may only be partial. However, the author wishes to argue that the present-day scenario is such that an all or none approach is required. With rising globalization and international-dependability, comes the need for greater cross-border cooperation and compromise. Looming issues – be it environmental, nuclear, or socio-political – all demand uniform adherence to, and implementation of, International Law. Fraudulently motivated reservations will only create more procedural issues in an already complex web of multilateral treaty agreements. To conclude, another point of Professor Bishop’s lectures may be iterated at this point to appreciate the ambiguous standing – “When we try to evaluate the institution of reservations as a part of the treaty-making process, we must agree that they can serve a very useful purpose despite the complications and annoyances they introduce.... Much can be said for the mechanism of reservations as a means to get partial agreement where total agreement proves impractical or impossible, and partial agreement seems worthwhile …”. Considering the fact that international law lacks absolute sanction, the provision of reservation will continue to remain a necessary evil. To ensure strengthened participation and consequent positive outcomes, the international community must find ways to work around the provision itself. In this hope, Article 19 can be applied generously, the economics of incentive can be actively used to ensure unadulterated participation and grassroot transactions, i.e. diplomatic communications, can be strengthened. |
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