The idea that interventions based on “humanitarian” claims are primarily advanced by Northern states and scholars.
There is an argument that “humanitarian intervention”– type of claims are mainly put forward by Northern states and scholars. This post will elaborate on this argument by explaining, first, how “humanitarian intervention” — type arguments are advanced mostly by Northern states, and second, will review how Northern scholars compared East Pakistan to Kosovo.
I. “Humanitarian intervention” is claimed by Northern states
1. While it is true that Belgium was the only state to invoke humanitarian intervention explicitly, and then as a supplementary argument, the language utilized after and before Kosovo by states including the UK and its more recent pronouncements align themselves with a reading that humanitarian intervention is now legalized. Anne Orford’s book explains that the explicit language is less significant than what is argued.[1] For example, Tony Blair repeatedly called Kosovo a “just war”. One example cited in Orford’s book is Blair saying Kosovo was a “just war based not on territorial ambitions, but on value”[2]. In the context of Kosovo, the UK advanced response to a humanitarian catastrophe as a legal basis for action.[3]
2. The fact that the UK now invokes humanitarian intervention though is key. This was done in the context of justifying an intervention in Syria after the alleged use of chemical weapons by the Assad regime in 2013.[4]
3. Nicholas Wheeler makes a similar point while claiming the Kosovo intervention was defended as a humanitarian war. This assessment is based on the language used while defending the intervention. Wheeler’s book makes this point in his chapter on Kosovo. A few examples include:
- “Clinton and his advisors argued, like the Blair government, that the West has a moral responsibility to stop terrible atrocities taking place in Kosovo.”[5]
- “Controversy raged over how far the means of bombing employed by NATO to prosecute its first “humanitarian war” undermined rationales of Operation Applied Force.”[6]
- The Netherlands claimed that “’one or two permanent members’ rigid interpretation of the concept of domestic jurisdiction, such a [Security Council] resolution is not attainable, we cannot sit back and simply let the humanitarian catastrophe occur.”[7]
- The UK even took the lead in arguing there was a legal basis for humanitarian intervention in 1998. “The reasoning was set out in an FCO paper circulated to NATO capitals in October 1998.”[8]
II. Northern scholars comparing East Pakistan to Kosovo
1. While explaining Indian academics’ “[…] disenchantment with the world of international law […]”[9] in the 1990s, B.S. Chimni notes that NATO’s intervention in Kosovo was not only problematic due to the fact that:
“[…] the NATO countries had violated core principles of international law and the UN Charter; the fundamental principles of sovereignty and non-intervention have always informed and continue to inform Indian international law scholarship. [Moreover] [t]he comparison of the intervention in Kosovo with Indian action in Bangladesh (1971) was squarely rejected; the Indian action was always asserted as a case of self-defence.”[10] [Emphasis added].
2. In the Summary of Conclusions of the International Commission of Jurists’ report The Events in East Pakistan 1971, the Commission asserts:
“India could, however, have justified the invasion on the grounds of humanitarian intervention, in view of the failure of the United Nations to deal with the massive violations of human rights in East Pakistan which were causing a continuing and intolerable refugee burden to India.”[11]
3. In his book, Just War or Just Peace?, Simon Chesterman places special emphasis on the 1971 Indian intervention as an example of a humanitarian intervention in customary international law:
“The Indian intervention in East Pakistan in 1971 is commonly held up as one of the more promising examples of alleged humanitarian intervention. Tesón calls it ‘an almost perfect example’; Fonteyne observes that it ‘probably constitutes the clearest case of forcible and individual humanitarian intervention in this century’; Bowett includes it as the only possible illustration of the practice in the period of 1945-86. It therefore merits consideration in some detail.”[12] [References in original omitted].
4. In the introduction of his book Saving Strangers: Humanitarian Intervention in International Society, Nicholas J. Wheeler states “[…] the volume investigates how far states have recognized humanitarian intervention as a legitimate exception to the rules of sovereignty, non-intervention, and non-use of force”[13] by investigating certain case studies including East Pakistan, Cambodia, Uganda, Iraq, Somalia Rwanda and Kosovo. Thus Wheeler is still comparing East Pakistan to Kosovo.
5. JL Holzgrefe and Robert Keohane’s article, Humanitarian Intervention: Ethical, Legal and Political Dilemmas, also uses the Indian example as a supposed humanitarian intervention.[14]
6. Thomas Franck and Nigel Rodney’s 1973 article “After Bangladesh: the law of humanitarian intervention by military force” is the earliest example of Northern states describing the Indian intervention as a humanitarian intervention.[15]
The importance of this argument is enormous and reveals the value of Third World Approaches to International Law “TWAIL” as a theoretical methodology to evaluate such humanitarian-type arguments for justifying certain intervention.
[1] Anne Orford, Reading humanitarian intervention: human rights and the use of force in international law (Cambridge; New York: Cambridge University Press, 2003) at pg. 5, fn. 9. (Hereafter, “Orford”).
[2] Tony Blair, “Doctrine of the International Community”, Speech given to the Economic Club of Chicago, Chicago, 22 April 1999, http://www.fco.gov.uk/news/speechtext.asp? 2316 (accessed 2 May 2001) cited in Orford, supra note 1, at 9.
[3] Ian Brownlie, ‘Kosovo Crisis Inquiry: Memoranda on the International Law Aspects’ (2000) 49:4 ICLQ 878.
[4] Policy Paper, “Chemical weapon use by Syrian regime: UK government legal position.” (29 August 2013) U.K. government website: https://www.gov.uk/government/publications/chemical-weapon-use-by-syrian-regime-uk-government-legal-position/chemical-weapon-use-by-syrian-regime-uk-government-legal-position-html-version. See also K Anderson, ‘Legality of Intervention in Syria in Response to Chemical Weapon Attacks’ ASIL Insight (30 Aug 2013) http://www.asil.org/insights/volume/17/issue/21/legality-intervention-syria-response-chemicalweapon-attacks.
[5] Nicholas J. Wheeler, Saving Strangers: Humanitarian Intervention in International Society (New York: Oxford University Press, 2000) at 266. (Hereafter, “Wheeler”).
[6] Ibid at 268.
[7] Ibid at 276.
[8] Ibid at 276.
[9] B. S. Chimni, “International Law Scholarship in Post-colonial India: Coping with Dualism” (2010) 23:1 Leiden Journal of International Law 23 at 45.
[10] Ibid.
[11] International Commission of Jurists, Events in East Pakistan, 1971: A Legal Study by the Secretariat of the International Commission of Jurists (Geneva, 1972) at 98.
[12] Simon Chesterman, Just War or Just Peace? Humanitarian Intervention in International Law (Oxford: Oxford University Press, 2001) at 71.
[13] Wheeler, supra note 5, at 2.
[14] Garth Abraham, JL Holzgrefe and Robert Keohane’s book, “Humanitarian Interention: Ethical, Legal and Political Dilemmas: book review” (2004) 20:2 South African Journal on Human Rights 335 at 337-338.
[15] Thomas M. Franck, and Nigel S. Rodney, “After Bangladesh: the law of humanitarian intervention by military force” (1973) 67:1 American Journal of International Law 275.
What is TWAIL?
The task of describing Third World Approaches to International Law (“TWAIL”) as a methodology is challenging and has been undertaken by a number of theorists including Antony Anghie[1], B.S. Chimni[2], Karin Mickelson[3], Makau Mutua[4], James Thuo Gathii,[5] Obiora Okafor,[6] Sundhya Pahuja,[7] Pooja Parmar[8], Andrew Sunter[9], Ibironke Odumosu[10] and Kwadwo Appiagyei-Atua[11].
The task is difficult because TWAIL does not have any kind of specific or fixed methodology that provides concrete answers to question about international law. Instead, TWAIL may be best understood as a distinct approach to understanding the nature of international law from the perspective of the experiences of Third World people.[12] By questioning certain aspects of international law (be it norm creation and development or enforcement and institutional structures) and using certain analytic tools to look at international law through the histories of the Third World, TWAIL focuses of Third World people (rather than the state) and seeks to change international law to reflect the concerns of Third World people.[13]
Makau Matua describes the TWAIL project as having three aims:
“The first is to understand, deconstruct, and unpack the uses of international law as a medium for the creation and perpetuation of a racialized hierarchy of international norms and institutions that subordinate non-Europeans to Europeans. Second, it seeks to construct and present an alternative normative legal edifice for international governance. Finally, TWAIL seeks through scholarship, policy, and politics to eradicate the conditions of underdevelopment in the Third World.[14]
Despite the lack of a unified framework, and as internally diverse as its approaches and conclusions may be, TWAIL scholarship may still be viewed as a school of thought or “[…] an “intellectual community” grounded in similar ideas.”[15] TWAIL scholars share a broad agenda of seeking to “transform international law from being a language of oppression to a language of emancipation – a body of rules and practices that reflect and embody the struggles and aspirations of Third World peoples and which, thereby, promotes truly global justice”.[16] TWAIL aims to use “[…] concrete historical and cultural evidence to show that the central doctrines of international law are highly Eurocentric and, therefore, not representative of the values and beliefs of a large portion of the world's population.”[17]
Most scholars agree that history plays a vital role in TWAIL methodology. In fact, George Galindo argues that history “[…] is an essential (and, I would add, original) part of the uniqueness of TWAIL's perspective on international law.”[18] Anghie explains how some TWAIL scholars have devised a new approach to viewing the history of international law,[19] Gathii describes TWAIL as a “historically aware methodology” [20] and Mutua likewise describes TWAIL as “[…] a historically located intellectual and political movement.”[21]
Mickelson explains that the aim of TWAIL scholarship is to look at the structure, history and processes of international law from the perspective of Third World people and thus challenge the historically Eurocentric versions of the history and development of international law.[22] Okafor similarly describes how TWAIL scholars methodologically insist on a global, not merely Western, historicisation of international law “[…] to more effectively write the Third World into international legal history and analysis, and alter many of the doctored pictures of international law and institutions that all-too-often dominate the international legal imagination.”[23] TWAIL aims to draw from the empirical history of international law’s engagement with the Third World and predict how international law would behave towards the Third World in the future.[24]
Given the significance of history in TWAIL’s methodology, it is useful to briefly consider Martti Koskenniemi’s The Gentle Civilizer of Nations[25] which is often seen as a moment when the field of international law took a “turn to history” as a method.[26] Koskenniemi describes it as a “move from structure to history in the analysis of international law”[27] that reveals “a historical contrast to the state of the discipline today”.[28] Koskenniemi’s work has often been praised for “counter[ing] more celebratory histories of international law by providing a more complex and nuanced history of the discipline”[29], however Orford argues “the turn to history as method has a constraining effect on the ability of critical legal scholars to engage with the law in new and politically productive ways”[30].
Orford explains the “conservative reaction” to Koskenniemi’s book by “[t]he work of international legal scholars engaged in exploring the relation of modern international legal concepts, institutions, and practices to the imperial past had an ambivalent reception amongst historians and legal scholars who aligned themselves with the contextualist Cambridge school of intellectual history associated with Quentin Skinner.”[31] This point is made clear when Orford, responding to criticisms of anachronism directed at her own historical legal methodology, describes her method as a “contextualist historical method” which she argues is necessary, especially in law, as “the past, far from being gone, is constantly being retrieved as a source or rationalisation of present obligation.”[32] Similarly, “TWAIL scholars, like legal scholars more generally, engage in the practice of developing arguments about contemporary political problems that draw on inherited concepts with a history of legal meaning attached to them.”[33] Thus TWAIL has also somewhat distanced itself from Koskenniemi.
Apart from history, TWAIL methodology is also concerned with the search for alternative epistemologies. This is because one of TWAIL’s central ambitions is to bring the untold stories of Third World people into the history of international law and, and in so doing, “[…] to find ways to set subjugated knowledge free”.[34] These stories have been described as “’hierarchically inferior’ knowledge [with] ‘historical content’ that have been ‘buried and masked’”.[35] TWAIL therefore “[…] strives for a meaningful engagement with lives of people whose interests, concerns, histories and struggles have been relegated to the margins of international legal theory […].”[36] Similar to feminist epistemologies, the focus is on the lives of marginalized people[37] and “alternative epistemologies” [38].
Parmar also explains that focusing on Third World people enables us to look at law at the so-called “historical present”[39] and conceptualize alternative histories of international law. These histories then enable us to formulate alternative conceptions (to the dominant Western narrative) of how international law developed and what it means. In short, “[…] it facilitates an understanding of the plural conceptions of law in the postcolonial world.”[40]
TWAIL as an “Integrated Approach”
One of the TWAIL movement’s key aims is to challenge mainstream liberal accounts of international law and to include the perspective of fringe groups to international law’s narrative. TWAIL therefore forms part of the Critical Legal Studies (CLS) movement,[41] and so not only does TWAIL share similar ideas to theoretical schools concerned with other marginalized groups such as Feminist Approaches, Critical Race Theory, Indigenous Studies and so forth, but TWAIL scholarship also includes interrelated methodological approaches where the specific methodologies of these other peripheral groups are incorporated within the theories of TWAIL scholars. This point is explained by Gathii:
“[A] central project of TWAIL is to challenge the hegemony of the dominant narratives of international law, in large part by teasing out encounters of difference along many axes – race, class, gender, sex, ethnicity, economics, trade, etc – and in inter-disciplinary ways – social, theoretical, epistemological, ontological and so on. The approaches within TWAIL [therefore] include critical, feminist, post-modern, Lat-Crit Theory (Latina and Latina Critical Theory Inc.), postcolonial theory, literary theory, modernist, Marxist, critical race theory and so on.”[42]
A good example of this is B.S. Chimni, one of TWAIL’s most prominent jurists writing about international development (amongst other subjects like human rights, refugee law, etc.).[43] For one, Chimni is one of the few TWAIL theorists who is also associated with the first generation of theorists since he was writing about similar postcolonial themes (amongst others) before TWAIL formally came together as a movement. Thus Chimni may be described as an intermediary between the two generations. Also, all of Chimni’s theories may not necessarily align with purely TWAIL beliefs.[44] Other than postcolonial studies, Marxism and socialism also play significant roles in shaping many of Chimni’s views. This is well demonstrated in Chimni’s important book International Law and World Order: A Critique of Contemporary Approaches, initially published in 1993 and with a new edition published in 2017, in which Chimni articulates an Integrated Marxist Approach to International Law (“IMAIL”), combining aspects of Marxism, socialist feminism and postcolonial theory.[45] Thus, although an extreme example, Chimni’s work demonstrates how many TWAIL theories combine aspects of various CLS theories.
Another example is examining TWAIL scholarship connected to Feminist and Gender Approaches to International Law.[46] In fact, the topic of the links between TWAIL and Feminism was the topic of the lunchtime keynote address of the 2007 TWAIL conference in Albany.[47] TWAIL scholarship in this area include articles examining the idea that Third World feminism as a “struggle”, [48] the cultural legitimization of gendered hierarchies in developing countries,[49] and the problems with a “victimization rhetoric” in a postcolonial/feminist context[50]. There is also a fair amount of TWAIL scholarship on this topic written about the African region. Scholars have written about issues such as using feminist ideas to prevent the further marginalization of African women[51] and examining the utility of African treaty-based mechanisms to further women’s rights[52].
Chimni is the principle scholar combining Marxism and TWAIL.[53] There also exist scholarship combining TWAIL theories with Indigenous Studies (representing ethnic groups who were the original inhabitants of a territory),[54] Critical Race Theory (concerned with race-related issues in the US)[55] and LatCrit Theory (representing Latino interests in the US)[56].
While such an integrated approach may not be explicit in the methodology used in this project, it is important to appreciate how this integrated approach impacts the theoretical lens relied on to approach the main research question. Pahuja and Eslava explain that “[u]sing a creole vocabulary derived from Marxism, World System Theory, Critical Legal Studies, Foucault and more recently from Subaltern and Postcolonial Studies, TWAIL scholars have been able to trace the relationship of international [to] the hegemonic concepts of colonialism and neocolonialism”[57] It is therefore important to understand that CLS language and ideas form an implicit basis for many TWAIL project, including the present thesis.[58]
[1] Anthony Anghie, “What is TWAIL: Comment,” 94 AM. SOC’Y INT’L L. PROC. 39 (2000); Anthony Anghie and B.S. Chimini “Third World Approaches to International Law and Individual Responsibility in Internal Conflicts”, 2 CHINESE J. INT’L L. 77 (2003); Anthony Anghie, “TWAIL: Past and Future”, 10(4) INT’L COMMUNITY L. REV. 479-481 (2008); Anghie, Grotius Lecture (2011).
[2] B. S. Chimni, A Just World under Law: A View from the South, 100 Am. Soc'y Int'l L. Proc. 17 (2006) – Grotius Lecture; B. S. Chimni, The Past, Present and Future of International Law: A Critical Third World Approach, 8 Melb. J. Int'l L. 499 (2007). B.S. Chimni, Third World Approaches to International Law: A Manifesto, in THE THIRD WORLD AND INTERNATIONAL ORDER: LAW, POLITICS AND GLOBALIZATION 47-73 (Anthony Anghie et al. eds., 2003); B.S. Chimni, Towards a Radical Third World Approach to Contemporary International Law, INT’L CENTER FOR COMP. L. & POL. REV., Oct. 2002, at 14.
[3] Karin Mickelson, “Rhetoric and Rage: Third World Voices in International Legal Discourse”, 16 WIS. INT’L L.J. 353 (1998); Karin Mickelson, “Taking Stock of TWAIL Histories”, 10(4) INT’L COMMUNITY L. REV. 355-362 (2008); MICKELSON, K.; ODUMOSU, I.; PARMAR, P., “Foreword, Situating Third World Approaches to International Law (TWAIL): Inspirations, Challenges and Possibilities”, 10 INT’L COMMUNITY L. REV. 351 (2008).
[4] Makau Mutua, “What is TWAIL?”, 94 AM. SOC’Y OF INT’L L. PROC. 31 (2000).
[5] James Thou Gathii, "International Law and Eurocentricity" (1998) 9 EJIL 184; James Thuo Gathii, “TWAIL: A Brief History of its Origins, its Decentralized Network, and a Tentative Bibliography” 3(1) TRADE Law & DEV . 26 (2011).
[6] Obiora Okafor, “Critical Third World Approaches to International Law (TWAIL): Theory, Methodology, or Both?”, 10 INT’L COMMUNITY L. REV. 371 (2008).
[7] Sundhya Pahuja, The Postcoloniality of International Law, 46 HARV . INT ’L L.J. 459 (2005).
[8] Puja Parmar, “TWAIL: An Epistemological Inquiry”, 10(4) INT’L COMMUNITY L. REV. 363-37 (2008).
[9] SUNTER, A. F., “TWAIL as Naturalized Epistemological Inquiry”, 20(2) CAN. J. L. & JURISPRUDENCE 475 (2007).
[10] Ibironke T. Odumosu, “Challenges for the (Present/) Future of Third World Approaches to International Law” International Community Law Review 10 (2008) 467–477.
[11] Kwadwo Appiagyei-Atua, “Ethical Dimensions of Third-World Approaches to International Law (TWAIL): A Critical Review”, African Journal of Legal Studies 8 (2015) 209–235.
[12] Anghie and Chimni (2003) at 102.
[13] Anghie and Chimni (2003) at 77-79.
[14] Mutua (2000) at 31.
[15] Okafor (2008) at 378.
[16] Anghie and Chimini (2003) at 79.
[17] Sunter (2007) at 476.
[18] Galindo (2016) at 42.
[19] Anghie (2005), foreword.
[20] Gathii (2011) at 34. See also Gathii (2007) “Imperialism, colonialism and international law”.
[21] Matua (2000) at 38.
[22] Mickelson et al (2008) at 351.
[23] Okafor (2008) at 376-377.
[24] Okafor (2008) at 373. This has also been argued as one of the greatest values of TWAIL: Archita Bhuyan, “Critical Legal Approach to International law – methodology or movement”: available at https://silpnujs.wordpress.com/2017/08/25/critical-legal-approaches-to-international-law-methodology-or-movement/
[25] M. Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960 (Cambridge University Press, 2001).
[26] TWAIL’s work has been described as a “variant” of Koskenniemi’s work given that they are both “scholarly writings interested in unsettling celebratory histories of international law”. Orford (2015 ) at 2. See also Galindo, ‘Martti Koskenniemi and the Historiographical Turn in International Law’ (2005) 16 European Journal of International Law 539; A. Becker Lorca, ‘Eurocentrism in the History of International Law’ in B. Fassbender and A. Peters (eds), The Oxford Handbook of the History of International Law (Oxford University Press, 2012), p. 1034, at p. 1055 (“describing the publication of The Gentle Civilizer as ‘a turning point in the writing of history by legal scholars’” cited inn Orford (2015) at 1 fn 2.
[27] Koskenniemi (2001) at 5-6. cited in Orford (2015) at 1.
[28] Koskenniemi (2001) at 5 cited in Orford (2015) at 3.
[29] Orford (2015) at 2.
[30] Orford (2015) at 9-10.
[31] Orford (2015) at 3-4.
[32] Orford (2008) at 175. See also Orford (2015) at 5-6 and 9.
[33] Orford (2015) at 8.See also A. Orford, ‘The Past as Law or History? The Relevance of Imperialism for Modern International Law’ in M. Toufayan, E. Tourme-Jouannet, and H. Ruiz Fabri (eds) International Law And New Approaches To The Third World: Between Repetition And Renewal (Paris: Société de Législation Comparée, 2013) 97, first published as NYU Institute for International Law and Justice Working Paper 2012/2 cited in Orford (2015) at 5, fn 19.
[34] Pooja Parmar, “TWAIL: An Epistemological Inquiry” (2008) 10:4 International Community Law Review 363 [Parmar] at 364]. See also Gathii, (2011) at 38.
[35] Michel Faucault, “Society Must be Defended”: Lectures at the College De France” (2003) at 7 quoted in Parmar at 364.
[36] Parmar at 365.
[37] Parmar, supra note 18 at 364.
[38] Parmar, supra note 18 at 364.
[39] Parmar, supra note 18 at 364. a
[40] Parmar, supra note 18 at 367.
[41] CLS refers to a movement with “a readily identifiable communality of starting-point in the critique of liberal legalism and a common awareness of the importance of theory and methodology which is a reaction against the generalized atheoretical character of mainstream legal scholarship.” Alan Hunt (1986) “The Theory of Critical Legal Studies.” Oxford Journal of Legal Studies, vol. 6, no. 1, pp. 1–45 at 3.
[42] Gathii (2011) at 37.
[43] Chimni, TWAIL: A Manifesto (2006). See also Chimni, B. S., A Just World under Law: A View from the South. American University International Law Review 22: 199–220 (2007).; Chimni, B. S., Prolegomena to a Class Approach to International Law. European Journal of International Law 21 (1): 57–82 (2010).; Chimni, B. S. The World of TWAIL: Introduction to the Special Issue. Trade, Law and Development 3 (1): 14–25 (2011).
[44] In fact Robert Knox notes that a list published in 2010, where Chimni lists ten authors that most influenced his writings, “highlights the degree to which Chimni considers himself part of the Marxist tradition. In this respect, Chimni is much closer to the first wave of Third World jurists than many contemporary TWAIL scholars.” Knox (2014) at 127.
[45] B. S. Chimni, International Law and World Order a Critique of Contemporary Approaches, (Cambridge University Press, 1993).
[46] Anghie and Chimini note the “feminine nature of the colonized” and note that their analysis shares many similarities with Charlesworth’s feminist analysis. Anghie and Chimni (2003) at 97.
[47] Dianne Otto, “Key-note Address at The Third World and International Law Conference III: The Gastronomics of TWAIL's Feminist Flavourings: Some Lunch-Time Offerings.” (2007) 9 Int'l Comm L Rev [345].
[48] Vasuki Nesiah, (2003). The Ground Beneath Her Feet: “Third World" Feminisms. Journal of International Women's Studies, 4(3), 30-38.
[49] Celestine Nyamu-Musembi, “How Should Human Rights and Development Respond to Cultural Legitimization of Gender Hierarchy in Developing Countries?” 41(2) HARV . INT ’L L.J. 381 (2000).
[50] Ratna Kapur, “The Tragedy of Victimization Rhetoric: Resurrecting the “Native” Subject in International/Post-Colonial Feminist Legal Politics”, 15 HARV . HUM . RTS . J. 1 (2002).
[51] Mosope Fagbongbe, “The Future of Women’s Rights from a TWAIL Perspective”, 10 INT’L COMMUNITY L. REV. 401 (2008); Mosope Fagbongbe, “Reconstructing Women's Rights in Africa Using the African Regional Human Rights Regime: problems and Possibilities” (2010) (Ph.D. Dissertation, University of British Columbia); Sylvia Kangara (2012). Beyond Bed and Bread: Making the African State Through Marriage Law Reform, Comparative Law Review”, Vol. 3, No. 2.
[52] BANKS, A.M., “CEDAW, Compliance, and Custom: Human Rights Enforcement in Sub-Saharan Africa”, 32 FORDHAM INT’L L.J. 781 (2009); Adrien Katherine Wing & Tyler Murray Smith, “The African Union and the New Pan-Africanism: Rushing to Organize or Timely Shift: The New African Union and Women’s Rights”, 13 TRANSNAT ’L L. & CONTEMP PROBS. 33, 35 (2003).
[53] B.S. Chimni, “Alternative Visions of Just World Order: Six Tales from India”, 46 HARV J. INT ’L L. 389 (2005); B.S. Chimni, An Outline of a Marxist Course on Public International Law, 17 LEIDEN J. INT ’L L. 1 (2004);
[54] GORDON, S. “Indigenous Rights in Modern International Law from a Critical Third World Perspective”, 31 AM. INDIAN L. REV. 401 (2007); NGUGI, J.M., “The Decolonization–Modernization Interface and the Plight of Indigenous Peoples in Post-Colonial Development Discourse in Africa”, 20 WIS. INT’L L.J. 297-351 (2002); Amaya Alvez Martin, “Constitutional Challenges of the South: Indigenous Water Rights in Chile; Another step in the Civilizing Mission”, 33 Windsor Y.B. Access Just. 87 (2016).
[55] Makau Mutua, “Critical Race Theory and International Law: The View of an Insider-Outsider” 45 VILLANOVA L. REV . 851, 852 (2000); IGLESIAS, E. M., “Mapping Intersections of Critical Race Theory, Postcolonial Studies and International Law”, 93 AM. SOC’Y INT’L L. PROC. 225 (1999); Sunera Thobani, “Reading TWAIL in the Canadian Context: Race, Gender and National Formation” International Community Law Review 10 (2008) 421–430.
[56] Antony Anghie, “LatCrit and TWAIL”, 42 Cal. W. Int'l L.J. 311 (2012).
[57] Pahuja and Eslava (2008) at 197.
[58] In fact, Alan Hunt argues that “[t]he success of critical legal studies will be in part determined by the extent to which they succeed in bringing together the diverse theoretical traditions on which they seek to draw.” Hunt (1986) at 3.
“History distorted: a TWAIL approach to understanding NATO’s reinterpretation of India’s 1971 intervention in East Pakistan.”
Paper submitted in partial fulfilment of the Comprehensive Examination Requirement, DCL Program, Faculty of Law, McGill University November 2016.
Table of Contents
I. Introduction
II. The NATO/Indian Case study
1. The 1971 Pakistani Civil War
2. India’s refugee situation
3. India’s defense before the UN Security Council
4. Reaction of the UN Security Council
5. Reaction of the International Community
6. Certain NATO states’ reliance on the Indian case study as an example of a humanitarian intervention
III. Analysis of the NATO/Indian case study
1. One action, two claims: the significance of the same intervention resulting in two completely different legal justifications
2. Certain NATO states’ reinterpretation of the legitimacy of India’s 1971 intervention
i. Hegemonic contestation
ii. Third World Approaches to International Law
IV. Conclusion
V. Bibliography
“The Oxford Handbook of the History of International Law is made up of European authors writing on key European themes and figures of the theory of international law in the context of European history. Third World discourse, although invited to participate, is kindly kept to the margins […] Bonaventura de Sousa Santos refers to the idiosyncratic Western way of thinking that establishes distinctions between European and Non-European points of view, radicalises such distinctions, and creates a hierarchy between the two in such a way that the European perspective always occupies the top, while other visions are labeled as nonsense or contradictory.”[1]
I. Introduction
Alternative perspective on modern histories of international law (TWAIL) expose certain truths about the nature of international law that could be masked through structural faults due to North/South power dynamics in international law, institutions and politics. Analyzing the use of force in general, and humanitarian intervention in particular, is instructive in illustrating ways in which the Global South is dominated by the Global North in international legal discourse – both in terms of mainstream scholarship and international affairs. India’s legal defense for its 1971 intervention in East Pakistan and NATO’s reliance and reinterpretation of the Indian case study in 2000 (the “NATO/India case study”) is instructive in demonstrating the Westerncentric hegemony of the dominant perspective of international law. However, this case study has not been adequately explored in literature.
As a consequence of the humanitarian situation resulting from the civil war in Pakistan in 1971, India experienced an unprecedented influx of refugees. India claimed that the severity of the refugee situation threatened its territorial integrity, and subsequently intervened in East Pakistan, justifying the action under a creative interpretation of the self-defense provisions in the UN Charter. At the time, the intervention was condemned by the majority of the international community.
Almost 30 years later in 2000 before the International Court of Justice (“ICJ”), certain NATO states were faced with a similar dilemma while defending their use of force in Kosovo in 1999. These NATO states relied on the doctrine of humanitarian intervention, and reversed their previous position by relying on India’s 1971 intervention as evidence of a humanitarian intervention in customary international law (the ICJ case concerning the Legality of Use of Force: Serbia and Montenegro v. Belgium[2]). By taking this position, these NATO states not only changed their views about the legitimacy of the 1971 intervention, they also sought to silence India's position on the issue by reinterpreting an important historical case study in international law. Moreover, rather than condemning NATO’s intervention in 1999, the majority of the international community agreed that the intervention was “illegal but legitimate”.
The NATO/India case study raises several key questions about the role of Third World state players in international law and the development of international legal norms. For example, how was it possible for the 1971 intervention to be justified in two opposing ways by state players at different points in time? How was it possible for certain NATO states to reinterpret the 1971 intervention of India and also reverse their position about the legitimacy of the use of force in international law? What does this incident tell us about the nature of international law? This paper will address these questions.
Part 1 of the paper will outline the factual scenario surrounding the NATO/Indian case-study, detailing the 1971 Pakistani civil war, the refugee situation in India, India’s legal justification for intervening and the contemporary reaction of the UN and the international community. This part will focus on the international community’s reluctance to intervene despite wide acknowledgement of the desperate situation in East Pakistan. The section will end with an explanation of the significance of the NATO/Indian case study in international law.
Part 2 will provide an analysis of how certain NATO states came to reinterpret the 1971 intervention and how it was possible for those NATO states to change their position on the legitimacy of the 1971 intervention. This part will conclude with an analysis of what this position change reveals about the nature of international law. This section will rely on Martti Koskenneimi’s theories regarding the contradictory assumptions about sovereignty that control the production of legal arguments and ultimately lead to the indeterminate nature of international law. Also, Koskenneimi’s hegemonic contestation model will be utilized to demonstrate how international law is intentionally vague due to the ambiguous nature of sovereignty which permits arguments to be easily amended. This part will demonstrate that this fundamental aspect of the nature of international law led certain NATO states to provide a theoretically valid legal claim while reinterpreting the 1971 Indian intervention and fundamentally altering their position on its legitimacy.
To understand how international law works in practice, TWAIL scholars like Anthony Anghie and B.S. Chimni will be relied on to show the Western biases inherent in international law that lead to legal issues being usually settled in ways that generally disfavor the Global South, since international law is “[…] shaped by colonial views of the world and the conceptual apparatus that supports it.”[3] Given the different responses of the international community to the 1971 intervention at the time, compared to the 1999 intervention and certain NATO states’ reliance on the 1971 intervention in 2000, the NATO/Indian case study is an important example demonstrating how the Eurocentric nature of international law functions in reality.
II. The NATO/Indian Case study
1. The 1971 Pakistani Civil War
The 1971 civil war in Pakistan was brutal. With a low estimate of 30,000 civilian deaths and 10 million refugees flooding into India in just 9 months,[4] it is hard to deny that East Pakistan was facing an extremely distressing situation. The melting point of the tensions in Pakistan can be traced back to the huge election victory by East Pakistani’s main political party (the “Awami League”) in December 1970.[5] It is noteworthy that, since independence, East Pakistan has been dominated by West Pakistan both politically and militarily.[6] The election victory made the Awami League the single biggest party in Pakistan, leaving the Pakistan Peoples’ Party (“PPP”, West Pakistan’s leading political party) in second place. The PPP argued that since each party represented the biggest single majority party in each wing of Pakistan, both parties should have parity right while drafting the new constitution. In other words, the Awami League should represent East Pakistan, and the PPP should represent West Pakistan. The Awami League, opposed to this proposal, began a non-violent campaign of demonstrations and non-cooperation with the government in West Pakistan. This led to West Pakistan’s subsequent declaration of martial law and the deployment of troops into its Eastern territory.[7]
Initially the PPP, fearing secessionist goals of the Awami League, agreed to negotiations and diplomacy with the primary goal of the negotiations aimed at quelling any secessionist motives.[8] However these negotiations broke down[9], and eventually led to West Pakistan deploying their military into East Pakistan in March 1971 “with devastating force”[10], described by Ved P. Nanda as a “reign of terror”[11].
The result of West Pakistan’s intervention in March 1971 was a series of large-scale human rights violations – acts that have been described by some regional academics and NGOs (including the International Commission of Jurists[12]) as acts amounting to “genocide”. Nanda claims that “[t]he horror of these events prompted observers to accuse the Pakistani armed forces.... of committing selective genocide, purporting to deprive East Pakistan of Bengali leadership”.[13] Thomas M. Franck and Nigel S. Rodley further claim that “Pakistan was violating minimum standards of human rights in East Bengal”[14] and Leo Kuper adds that the brutality included the “additional horror of torture and extermination camps”.[15]
The International Commission of Jurists report states that the devastation was “[…] on a scale which was difficult to comprehend” […] “[D]uring the civil war from 25 March to 3 December and during the international war from 4 to 18 December, massive violations of human rights occurred in East Pakistan [including an] attempt to exterminate or drive out of the country a large part of the Hindu population of approximately 10 million people […]”.[16]
The question of whether there were “humanitarian concerns” in East Pakistan is not up for debate. This is highlighted by the fact that throughout the conflict, the United Nations did not question the magnitude of the humanitarian situation in Bangladesh.[17] The UN reaction to the catastrophe in East Pakistan has been described by Nanda as that of a “concerned, but helpless observer” [18].
On his own initiative, the UN Secretary-General (U Thant) expressed concern over the situation to the President of Pakistan in May 1971 and launched the United Nations East Pakistan Relief Operation.[19] U Thant also circulated a confidential memorandum to the UNSC in July 1971 (made public a month later) reversing his previous position[20] that the UN would be disallowed to intervene in the situation due to Article 2(7) UN Charter, and now stating that the internal situation in East Pakistan amounted to a “threat to international peace and security”.[21] Moreover, the UN General Assembly, recognizing the escalating humanitarian situation, passed Resolution 2790 on 6 December 1971 calling for “United Nations Assistance to East Pakistan Refugees through the United Nations Focal Point and United Nations Humanitarian Assistance to East Pakistan”.[22]
Although the majority of the international community agreed the humanitarian situation in East Pakistan was extremely concerning, most fell short of condemning Pakistan’s actions. The usual Cold War stalemate, with the US and China supporting Pakistan and the Soviet Union aligned with India, prevented the major powers from even discussing the matter prior to India’s intervention and the UN Security Council did not pass a resolution until the Indian intervention had begun in December 1971. [23]
2. India’s refugee situation
During the nine months of terror, approximately 10 million refugees were forced to flee into India from East Pakistan.[24] The unpredicted massive population influx led to a considerable amount of strain on India’s resources, which resulted in deteriorating health and sanitation conditions in India. For example, the population of Calcutta had increased to 12 million after the arrival of the refugees, all of whom needed to be sheltered and given protection against epidemics like cholera, that had spread throughout West Bengal.[25] The cholera epidemic, in particular, was described as an “‘unbearable’ economic strain that was costing the exchequer millions every day.”[26] Additionally the East Pakistani refugees fled to a politically volatile area of India,[27] which led to fears of possible social and political upheaval that could undermine India’s own national stability.[28] By late May India estimated it had already sheltered over three million refugees, and the numbers reached six million by the end of June.[29]
Consequently, there began to emerge a large amount of public support in India for an intervention in East Pakistan. This pro-secessionist sympathy was rampant amongst India’s political elite and press. Reactions ranged from Opposition party members demanding direct military action, while some elements of the press favored the idea of all-out war with Pakistan.[30] Faced with significant electoral pressure and a looming election later that year, a case has been made that the Congress Party (India’s ruling party at the time) was pressured to act in support of the democratic will of its citizens. In fact, Wheeler suggests that the pubic legitimating reasons for India to act were perhaps the most convincing reasons for why India decided to act.[31]
Given the stringent obligations imposed on the international community by the 1951 Refugee Convention and by operation of customary international law[32], there was very little India could do to stop the massive influx of refugees into its territory. India therefore passed a parliamentary resolution describing the oppression in East Pakistan as amounting to “genocide”.[33] Although the Indian Chief of Army Staff claims an attack was planned in East Pakistan for 4 December, Pakistan launched an attack on eight Indian airfields on 3 December and India immediately retaliated.[34]
3. India’s defense before the UN Security Council
Although India’s 1971 intervention has been subsequently cited by scholars/jurists and also by certain NATO states in their official justification for their “humanitarian intervention” in Kosovo as a legitimate authority advancing the notion of a “humanitarian intervention”, India did not officially advanced “humanitarian concerns” as a legal justification for the intervention. Rather, while addressing the distressing humanitarian situation in East Pakistan on several occasions, India relied on a creative interpretation of the right to self-defense thereby officially citing Article 51 of the UN Charter as the primary justification for intervening.
Initially India’s Ambassador to the UN, Ambassador Samar Sen, justified India’s actions as permissible under a classic reading of the doctrine of self-defense, given that Pakistan had attacked India first. This was however exposed as a weak justification given the scale of India’s actions. As per the Carolina Incident case and customary international law, in order to be considered a legitimate act in self-defense and be covered by Article 51 of the UN Charter, the armed attack must be necessary, proportionate and a last resort.[35] The International Commission of Jurists’ report concluded that given the scale of India’s conduct it is unlikely that India was acting solely to protect its territorial integrity.[36] India’s justification was therefore quickly amended, with India accusing Pakistan of committing a new crime of “refugee aggression”. Ambassador Sen argued the kind of aggression India was facing should be comparable to the classic understanding of “aggression” given the impact of Pakistan’s civil war on social structures and finances in India, and India’s loss of territory in sheltering refugees.[37]
India claimed that the substantial influx of refugees entering the state of West Bengal (which borders Bangladesh) created a humanitarian catastrophe in India, and thus India was acting to prevent a further escalation of the humanitarian situation within its borders. Arguing that the situation represented an intolerable burden constituting a “constructive attack”, and acting in order to protect its own population, India’s intervention was an act of self-defense spurred on by “refugee aggression”.[38]
Ambassador Sen began by arguing that “[India] shall not be a party to any solution that will mean continuation of the oppression of the East Pakistan people […] So long as we have any light of civilized behavior left in us, we shall protect them” but went on to say that “[s]econdly we shall continue to save our national security and sovereignty”.[39] “[W]e have no experience of interfering in other people’s affairs so long as they do not interfere in ours.”[40] In addition to these statements, there are numerous other occasions when Ambassador Sen justified India’s action based on self-defense after first speaking of the atrocities in East Pakistan.[41]
Hence, it can be argued that India’s intervention was purely self-interested, in pursuit of saving its own territorial integrity from the catastrophic effects of the refugee influx which may have led to a revolutionary situation in India, thus threatening the “inter-communal harmony of the Indian states”.[42] Converse to arguments concerning humanitarian intervention, which require that the primary purpose of the intervention to be altruistic, self-defense arguments are mainly self-interested. Thus India’s arguments closely resemble self-defense arguments as opposed to those relating to humanitarian concerns.
4. Reaction of the UN Security Council
The UN Security Council met on 4 December 1971, the day after the hostilities between India and Pakistan had commenced. Although the UN Security Council was suffering from its usual Cold War stalemate, the matter was referred to the UN General Assembly under the “1950 Uniting for Peace” procedure. The UN General Assembly ultimately passed Resolution 2793 (December 7, 1971) calling for an immediate ceasefire and a withdrawal of all troops.[43] India did not abide by the UN recommendation until the surrender of Pakistani forces on 16 December 1971. The last meeting of the UN Security Council took place on 21 December, where SCR 307 was passed calling for a “durable ceasefire”, each party to withdraw their military forces and the voluntary return of refugees.[44]
5. Reaction of the International Community
The majority of the Security Council rejected India’s argument that Pakistan’s “refugee” and “military” aggression legitimated India’s intervention. India was largely perceived to be violating the fundamental norms concerning sovereignty and non-intervention in the UN Charter. Other than the five permanent member states, the composition of the Security Council at the time included Argentina, Belgium, Burundi, Italy, Japan, Nicaragua, Poland, Sierra Leone, Somalia and Syria.[45]
Within the Security Council, China and the US were the strongest advocates of this position, with the US placing punitive sanctions on India including revoking all licenses for military sales and suspending current economic aid as well as the following year’s aid to India. The US Ambassador to the UN, George Bush, described India’s actions as “clear-cut aggression” and the Chinese Ambassador called upon the international community to name India as the aggressor.[46] While the US were careful not to condone the Government of Pakistan’s actions in East Pakistan, calling it a “tragic mistake”, Ambassador Bush nonetheless condemned India’s use of force and reiterated Pakistan’s right to territorial integrity and sovereignty.[47]
Other than the Soviet Union, the only state in the Security Council to accept India’s arguments was Soviet Union’s Warsaw pact ally Poland[48]. The Soviet Union, while situating its defense in the context of the humanitarian situation in East Pakistan, asserted East Pakistan’s right to justice and self-determination while also agreeing that India had indeed acted in self-defense. The Soviet Union argued that the Government of Pakistan was the main cause of the situation in East Pakistan and stressed the international nature of the conflict due to the flight of approximately 10 million people.[49]
Importantly, even when the matter was referred to the General Assembly under the Uniting for Peace procedure of 1950, none of the 49 states that spoke justified the intervention as a humanitarian intervention. Moreover, when the General Assembly finally passed Resolution 2793 it simply called for a ceasefire and only mentioned the repatriation of refugees without speaking of the humanitarian situation in East Pakistan. Resolution 2793 can therefore be viewed as the international community rejecting the doctrine of humanitarian intervention in favor of sovereignty. Wheeler rightly points out that “[…] Resolution 2793 secured such overwhelming support because it was accepted as a given that, even in cases of mass murder, there could be no exception to the rules of a pluralist international society.”[50]
The reactions of scholars to the question of legality of India’s 1971 intervention are mixed. While Fernando Teson makes a weak argument that Security Council Resolution 307 (21 December 1971) demonstrates the international community’s support for humanitarian intervention, given that it simply called for a ceasefire and stopped short of condemning India’s actions,[51] Wheeler conversely notes that Resolution 307 was in fact a compromise between the Soviet Union and the US during a problematic time and does not necessarily prove the international community supported India’s actions.[52] Gary Klintworth argues that the acceptance of Bangladesh’s declaration of independence by the majority of the international community (including the US) demonstrates the international community’s implicit acceptance of India’s actions based on humanitarian reasons.[53] However, Wheeler correctly rebuts this analysis, noting the lack of evidence supplied by Klintworth to support this claim and the fact that the position is directly contrary to contemporary opinions expressed by the majority of the General Assembly and Security Council. While India could have been treated more harshly, “[…] it is a mistake to confuse mitigation with moral approval.”[54]
6. Certain NATO states’ reliance on the Indian case study as an example of a humanitarian intervention
The 1971 Indian intervention was largely forgotten in the international legal sphere for almost thirty years, up until 2000 when, before the International Court of Justice, certain NATO states sought to defend their air bombing campaign in Kosovo in 1999. In doing so, they defended their actions as a humanitarian intervention and relied on, inter alia, India’s intervention in East Pakistan in 1971 as evidence of the doctrine in customary international law. The case was preliminarily dismissed by the Court due to jurisdictional concerns, however the international community has widely regarded the intervention to be “illegal but legitimate”. Why is this a significant resurrection of the historical case study? Primarily for three reasons:
First, India, has never claimed that the intervention in 1971 was based on primarily humanitarian concerns. Throughout the intervention, and to date, India has defended its use of force as an act of self-defense. How then could certain NATO states redefine India’s defense and what kind of effect does this reinterpretation have on customary international law? In other words, what if the actor (in this case India) defends their actions in a particular way while the international community defends the actor’s actions in a completely different way (self-defense is a purely self-interested defense while humanitarian intervention necessarily presumes some form of altruism). Which interpretation may legitimately form state practice in customary international law?
Second, certain NATO states changed their opinions about the legitimacy of India’s intervention over time. In 1971, in the UN Security Council and General Assembly, these same states asserted Pakistan’s sovereignty and condemned India’s intervention. The US even went so far as to impose sanctions on India. How then could these same states now thirty years later not only condone India’s intervention but also rely on it to defend their own actions? In other words, how can this change of position by certain NATO states be reconciled with the opinio juris requirement in customary international law?
Classical positivism requires the determination of legally binding custom to be based on “[…] habitual conduct of states [which is an] objective determination of fact.”[55] ‘As it is’ needs to be differentiated from ‘as it should be’, and formal sources need to be differentiated from moral and political arguments.[56] Such a strict reading of the law would likely criticize not only certain NATO state’s reinterpretation of the legitimacy of the 1971 intervention, but would also criticize certain NATO states’ reliance on the doctrine of humanitarian intervention.
Even Bruno Simma and Andreas L. Paulus’ idea of “modern positivism” which provides a far more flexible approach to determining the existence of customary international norms may not adequately explain NATO’s reliance on a case study they once objected to as evidence of state practice. Simma and Paulus believe modern positivism goes beyond simply “state will”. They consider soft law as important to interpret rules, view law as a vehicle of social change,[57] and permit the blurring between opinion juris and state practice so as to allow for rapid development of customary international law.[58] For example, Simma and Paulus contend opinio juris may also be deduced from soft law sources like voting records in international fora. However, certain NATO states consistently voted against the Indian intervention in the UN General Assembly and Security Council in 1971. This is evidence exactly contrary to the subjective obligation showing a sense that certain NATO states felt bound to an international law (in this case, humanitarian intervention). Thus it is difficult to reconcile NATO’s reclassification of the legitimacy of the 1971 intervention with the opinion juris requirement in customary international law.
Finally, and importantly, India has consistently articulated its opposition to the doctrine of humanitarian intervention. India is an ardent proponent of the sacrosanct nature of state sovereignty and territorial integrity and does not believe humanitarian concerns trump these values.[59] For example, quite recently India abstained from UN Security Council Resolution 1973 on intervening in the 2011 Libyan crisis.[60] NATO’s argument that India’s intervention was humanitarian in nature is therefore contradictory to India’s long-held position on the issue. Moreover, since 2000 was the first time humanitarian intervention was ever advanced as a legal defense before an international judicial forum, and given the different reactions of the international community to India’s 1971 intervention as compared to certain NATO states’ intervention in Kosovo, this reinterpretation is significant as it demonstrates ways in which the Global South may be dominated by the Global North in international affairs, in terms of discourse, institutions and norm creation.
III. Analysis of the NATO/Indian case study
Part 1 of this section will rely on Koskenniemi’s ideas on sovereignty and the production of legal arguments to demonstrate how it was possible for India to claim the 1971 intervention was an act of self-defense while certain NATO states claimed it was an example of a humanitarian intervention. Part 2 will address how it was possible for certain NATO states to change their mind about the legitimacy of the intervention. This section will begin by outlining Koskenniemi’s “hegemonic contestation” model, explaining how the NATO/India case study is an example of how this hegemonic contestation works in practice. However, unlike Koskenniemi who believes the answers to international legal questions are indeterminate and unpredictable, this section will then explain how the NATO/Indian case study shows the Eurocentric nature of international law and how international legal questions are usually resolved in favor of certain power dynamics. By focusing on arguments by TWAIL theorists, this section will show structural biases in the international system, which have resulted from the continued relevance of the colonial foundations of international law, that favor the Global North and marginalize Third World opinion.
1. One action, two claims: the significance of the same intervention resulting in two completely different legal justifications
In 1971, India claimed its intervention was an act of self-defense, while in 2000 certain NATO states branded India’s intervention as humanitarian in nature. What does the fact that the same act can be defended in two completely different ways tell us about the nature of international law?
Given that most jus ad bellum debates surround different understandings of the notion of sovereignty, while looking at what the NATO/Indian case study signifies about the nature of international law it is useful to deconstruct the concept of sovereignty. In this regard, Koskenniemi’s ideas on the role of sovereignty within a legal argument is particularly instructive. Within the international legal discourse, the content and use of the concept of sovereignty flows from two contradicting assumptions. These assumptions are both theoretically equally legitimate, and they control the types of legal arguments that are possible depending on which perspective one adopts.[61]
Sometimes sovereignty is taken to mean the completeness of State power within its territory which is inherent in the concept of statehood and precedes the international normative order. At other times, sovereignty is conceptualized as a “systematic” project, determined from within the international normative system which in this sense precedes it.[62]
Sovereignty therefore signifies a state’s subjective freedom and also its objective submission to some kind of higher order and neither expression of sovereignty theoretically trumps the other.[63] Thus the idea of sovereignty is both contradictory and indeterminate, and since competing ideas of sovereignty form the basis of international legal arguments (especially those involving the use of force), competing arguments in international law are both possible and legitimate in theory. [64]
“It is impossible to define ‘sovereignty’ so as to contain the idea of the State’s subjective freedom as well as that of objective restraints to such freedoms […] it emerges that ‘sovereignty’ does not have an immutable ‘essence’ which could tell whether an act violates it or not”.[65] This permits arguments in favor and opposed to an intervention to be equally legitimate in theory, depending on which perspective of sovereignty one adopts.
Applying these definitions of sovereignty to the NATO/India case study, we can see it was possible for India to claim self-defense based on “refugee aggression,” thus expressing India’s subjective freedom and appealing to its right to take independent action, contrary to the opinion of the international community, in order to protect its borders. It was also equally theoretically valid for the international community to accuse India of inventing a new defense and violating traditional understandings of the international ban against the use of force, thus appealing to India’s objective submission to the international system.
Similarly, applying these theories to the arguments put by NATO states in 2000, we can see that by advancing the defense of humanitarian intervention, certain NATO states were indirectly arguing for a conditional conception of state sovereignty, arguing that a state’s international acquiescence to certain basic standards of humanity preceded a state’s sovereignty. India, on the other hand, was able to argue the opposite position and, while noting the distressing situation in the region, viewed the international order as secondary to sovereignty and asserted the former Yugoslavia right to territorial integrity.[66]
Koskenniemi describes two opposite projects that characterize the international legal discourse. Ascending arguments view the world order as secondary to sovereignty and perceive the international system as attaining its legitimacy from the presumed legitimacy of state power, while descending arguments contend that the legitimacy of the world order precedes that of the individual state and so states attain their sovereignty through the given legitimacy of the normative international order.[67] In a strict sense, while descending arguments view sovereignty as a “legally limited ‘competence’”[68], ascending arguments view sovereignty as an absolute competence.
Ascending contentions lead “[…] from the oppressive uniformity of global domination into self-determination and identity” while descending projects “lead from sovereign egoism to world unity”.[69] International law can therefore be contested from two opposite camps: it can either be argued as being “oppressively homogeneous” and universalization can be seen as a hegemonic endeavor with arguments highlighting diversity over unity and allegations that universal claims originate from powerful states attempting to use unity to exercise control over weaker nations. On the other hand, it can be seen as “egotistically anarchic:” used as a tool by powerful states seeking to justify their actions at the expense of human rights, the environment or trade. The starting point for both arguments is a negative characterization of the current interpretation of the law. The actor then aspires to overturn this position by putting forward an opposite argument of either unity or diversity, both of which are equally theoretically possible.[70]
In 1971, India put forward an ascending argument and claimed the rules banning the use of force in those circumstances were “oppressively homogeneous” considering the internationalization of the conflict due to the escalating refugee situation and the position that the international community was aware the situation in East Pakistan was dire indicated that they were shielding Pakistan from responsibility. India claimed that they should therefore be permitted to rely on a “refugee aggression” self-defense claim due to the exceptional nature of the conflict and its right to protect its own territorial integrity.[71] By comparison, in 2000, while relying on the doctrine of humanitarian intervention before the ICJ, certain NATO states put forward a descending argument about the validity of humanitarian intervention (citing the 1971 Indian case study with approval), and claimed that the traditional laws banning the use of force were “egotistically anarchic” as they permitted Serbian forces to continue persecuting the Kosovo Muslim population with impunity and “[…] projected the Charter letter as an anachronistic shield over domestic injustice”[72].
Therefore, the NATO/India case study demonstrates that international law permits the same incident (in this case, an intervention based on humanitarian concerns in the intervening state) to be justified (and opposed) from two different perspectives, depending on which conception of sovereignty is employed – ascending or descending. Given the indeterminate nature of sovereignty, both arguments can equally be rebuffed using the competing idea of sovereignty and both arguments equally theoretically legitimate.
2. Certain NATO states’ reinterpretation of the legitimacy of India’s 1971 intervention
This section will explore how was it possible for certain NATO states to change their mind about the legitimacy of India’s 1971 intervention, and what this dynamic positioning tells us about the nature of international law?
i. Hegemonic contestation
Koskenniemi’s “hegemonic contestation” model asserts that international law is well explained as a set of politically motivated legal arguments being projected as universal claims, the content of which changes based on social and political circumstances. Thus a fundamental characteristics of international law is its uncertain and fluid nature, which permits legal arguments to be easily amended depending on the political circumstances at different points of time in history.
International law, according to Koskenniemi, “[…] is better understood as an aspect of hegemonic contestation, a technique of articulating political claims in terms of legal rights and duties.”[73] In other words, international law is a form of legal argumentation in which actors seek to make their political preferences appear to be universal ones. This aspect makes international law seem like a so-called “apology for power”. However, by relying on universal norms, actors are distancing themselves from their own idiosyncratic preferences, and thus the system also creates an international legal community. This aspect enables international law to contain a utopian aspect.[74]
The idea that it is possible to articulate a set of absolute universal norms seems absurd given the heterogeneity of interests that exist in the international community and there is no representative of the whole community that is not also a representative of a particular member of the community. Thus, proclamations of universal international laws always appear from the perspective of a particular political actor in a particular situation.[75] The reason why this is “hegemonic” is because the goal of both actors in the legal debate is to project their partial view of a meaning they have ascribed to a particular rule to appear as a total view and make their preference to seem as the universal one.[76]
This is precisely what certain NATO states were doing in 1971: arguing their political preferences and articulating them as legal claims. By arguing within a certain set of political circumstances (the Cold War) in 1971, these NATO states were “[…] dressing political claims in a specialized technical idiom […]”.[77] These NATO states agreed that the situation in East Pakistan was dire, however despite that, they asserted Pakistan’s sovereignty and claimed the Indian intervention was illegal. Further, in 2000, during a similar situation, where NATO used force in Kosovo without Security Council authorization, and despite their objection to use force in 1971, certain NATO states then branded the 1971 Indian intervention a humanitarian intervention and justified their actions under the doctrine (thus attempting to project their partial understanding of the law as a universal one).
Moreover, since “[…] neither sovereignty nor world community has any fixed content, the choice between the two cannot be made as a principled commitment, only as hegemonic strategy […] Both appear on surfaces on which political actors can reciprocally make and oppose hegemonic claims.”[78] Thus while certain NATO states could assert Pakistan’s right to sovereignty over humanitarian concerns in 1971 by relying on one conception of sovereignty and the international community, they could amend their understanding of both terms in 2000 while arguing in favor of humanitarian intervention.
Such a hegemonic contestation model suggests that international laws are intentionally vague so as to ensure the rule is not over-inclusive or under-inclusive, and in order to permit easy changes regarding whose policy to include and whose to oppose. This political side to international legal debates has been prevalent in defining words like “self-defense” and “self-determination”. This is also why there has been an inability to find an agreeable definition for “terrorism”. Who will be branded a terrorist and who will be a freedom fighter, and at what point of time will this definition change? Another example is the binding definition of “aggression” (Article 1 of the 1974 GA Resolution on the Definition of Aggression) which is extremely open-ended and includes a non-exhaustive list of nine examples and a provision that the Security Council can determine other acts of aggression in accordance with the Charter (Article 4).[79]
Another example of how this hegemonic model has worked in the international arena relates to the ascending and descending arguments of international law proposed in the previous section of this paper. As stated above, ascending arguments are those that view state sovereignty as superseding international order and are projects of independence and identity, while descending arguments hold the opposite to be true and are projects of world unity. Traditionally, the Third World is associated with opposing Western hegemony and relying primarily on ascending arguments. However, recently the US has relied on the doctrine while opposing the International Criminal Court.[80] This is also true about the US’s arguments concerning the doctrine of pre-emptive self-defense and the so-called “War on Terror”. In fact, Koskenniemi has classified most of the US foreign policy under Bush era as an ascending project.[81]
ii. Third World Approaches to International Law
There is, however, one significant aspect of Koskenniemi’s theory that does not explain the NATO/Indian case study. Koskenniemi believes that answers to legal questions are indeterminate and unpredictable, as no position trumps the other, and so it is difficult to applaud or criticize international behavior. International law therefore lacks any constraining power.[82] However, while this may be true in theory, and international law is indeed indeterminate, in practice certain legal claims do win. In the NATO/Indian case study, certain NATO states were able to perform a volte face in terms of their position on the legitimacy of India’s 1971 intervention and also managed to rebranded India’s intervention for their own purposes without outcry or reprisal. No sanctions were applied on certain NATO states in 1999 and there was wide international consensus that the intervention in Kosovo was illegal but legitimate, while in 1971 India received harsh condemnation from the international community and the US imposed sanctions on India. These two interventions, and the legal defense put forward by the intervening states respectively, were treated very differently by the international community.
Contrary to Koskenniemi’s position, the NATO/Indian case study demonstrates the commonly held TWAIL position that, while the indeterminacies in international law are real, these indeterminacies are usually resolved by looking at the social context, general legal principles and policy considerations. Approaching the issue in such a way generally disfavors the Third World since these are usually “[…] shaped by colonial views of the world and the conceptual apparatus that supports it.”[83] Thus, while international law is constraining and the better legal argument wins, it usually only wins in theory and power usually controls action.[84] In practice, Western values usually trump Third World concerns, and this is largely due to the continued relevance of the colonial foundations of international law. Third World perspectives are usually silenced, even when, as in this case, the Western states were not involved in the incident and the Third World state was one of the principle participants.
Certain NATO states’ reliance on the 1971 Indian case study is especially significant as India is opposed to NATO’s 1999 intervention and rejects the doctrine of humanitarian intervention.[85] Thus, by projecting this interpretation to India’s 1971 intervention, these Western states were claiming that even Third World states like India have previously conducted such interventions; thus indirectly portraying a Third World acceptance of humanitarian intervention.[86] Furthermore, the fact that these NATO states were permitted to rely on a case they once opposed as evidence of a doctrine in customary international law with almost no notice by the international community shows the Western biases prevalent in the international legal system.
“International law claims to be universal, although its creators have unambiguously asserted its European and Christian origins.”[87] Tracing the origins of modern international law to Hugo Grotius and Francisco de Vitoria, Makau Matua claims that: “[…] international law is premised on Europe as the center, Christianity as the basis for civilization, capitalism as innate in humans, and imperialism as a necessity.”
Rather than viewing colonialism as marginal and unrelated to international law, colonialism should in fact be seen as central to the formation of international law, given the relationship between colonial expansion and universality. Not only was international law used to legitimize the suppression of Third World people, the doctrines used to assimilate non-Europeans to an “international” system i.e. sovereignty and even law, were themselves a product of the power and subordination relationship of the colonial experience.[88] Furthermore, these structural biases in the discipline persist and are based on shared assumptions of culture and race which in turn have their roots in colonialism.[89] Such issues of disparities in global power are, however, hidden by the “[…] fiction of a system of sovereign and equal states.”[90]
The nineteenth century doctrine of recognition stated that sovereignty existed when and where Europeans recognized it. International law in itself developed through encounters between Europe and the rest of the world, and “[…] the notion of sovereignty itself was key to justifying, managing, and legitimizing colonialism.”[91] International law, during colonial times, therefore legitimated imperialism.[92] Colonization was viewed as something “good” for non-Europeans.[93] “The so-called “Age of Empire” thus provided the practical impetus and theoretical approval for the forced assimilation of non-European people into international law, which was a truly Eurocentric vision of what the world is and how it should operate.” [94]
In a frequently quoted passage, Anghie describes the relationship between international law and sovereignty:
The colonial confrontation was not a confrontation between two sovereign states, but between a sovereign European state and a non-European state that, according to the positivist jurisprudence at the time, was lacking in sovereignty. Such a confrontation poses no conceptual difficulties for the positivist jurists who basically resolve the issue by arguing that the sovereign state can do as it wishes with regard to the non-sovereign entity, which lacks the legal personality to assert an any legal opposition.[95]
Anghie argues that, even during the decolonization process, non-European sovereignty was ambiguous as non-Europeans had to submit to a completely foreign set of standards rather than affirm any kind of genuine identity.[96] This is because while sovereignty for Western states has always been assumed in international law, Third World sovereignty was created through the decolonization process. This is best exemplified by the Mandate System of the League of Nations that perceived sovereignty as something that could be created using international law and institutions.[97]
Another common trait of international law that emerges through TWAIL analysis is the concept of a “civilizing mission”. This takes the form of the “us” versus “other” or “developed” versus “undeveloped” divide. Anghie and Chimni point out that “[…] in the context of the ongoing problem of violence in the international system, it is significant to note that since the beginnings of international law, it is frequently the “other”, the non-European […] who [is] identified as the source of all violence […].”[98] However if such violence is inflicted by the colonial power it is permissible under self-defense or because it is humanitarian in nature aimed at saving non-Europeans from themselves.[99]
This point is demonstrated in the NATO/Indian case study. When India used force in self-defense in 1971 it was initially considered illegitimate by most Western states, and NATO’s use of force in 1999 was argued as legitimate based on humanitarian intervention. Moreover, the entire idea of a “humanitarian intervention” reflects the concept of a civilizing mission, with Western states (who are those most in favor of humanitarian intervention) feeling a sense of duty to rescue those they have deemed to be in a disadvantaged position and, given the historically sporadic record of such interventions, those they have deemed to be worthy of their support.
Therefore, Koskenniemi explains how competing conceptions of sovereignty and the use of either ascending or descending arguments in the international legal discourse enables the same act to be defended from two different and equally theoretically possible approaches, depending on which idea of sovereignty one takes as a starting point. Hence it was simultaneously possible for India to claim the 1971 intervention was an act of self-defense and for certain NATO states to claim it as an example of a humanitarian intervention. In addressing how it was possible for certain NATO states to change their mind about the legitimacy of the intervention, the NATO/Indian case study is perfectly captured in Koskenniemi’s hegemonic contestation model. However, unlike Koskenniemi who believes the answers to international legal questions are indeterminate and unpredictable, the NATO/Indian case study demonstrates that, in practice, the outcomes of legal debates are usually resolved in opposition to Third World concerns given the Westerncentric nature of international law which is a consequence of the continued relevance of colonialism on international law.
IV. Conclusion
1971 was a bloody year in South Asia. There is overwhelming evidence of the dire humanitarian situation in East Pakistan resulting from the civil war. There is also compelling proof that India was indeed suffering due to the spill-over effects of the humanitarian situation in East Pakistan and within the context of an international community that was unwilling to act and growing domestic pressure for an intervention, India decided to intervene and justified their action under Article 51 of the UN Charter. The intervention was widely condemned by the international community at the time. Then, in 2000, certain NATO states rebranded the Indian intervention as an example of a humanitarian intervention and relied on it as evidence of the doctrine in customary international law.
The NATO/Indian case study provides useful evidence that Western biases in the international legal system are significant. Certain NATO states not only changed their mind about the legitimacy of India’s 1971 intervention, they also reinterpreted the defense, with limited notice to the international community. The fact that these NATO states could superimpose the doctrine of humanitarian intervention to explain the actions of India (a nation that opposes the doctrine) demonstrates the colonial underpinnings that continue to impact the development of international law. Moreover, comparing the harsh condemnation India received after the 1971 intervention with the “illegal but legitimate” verdict labelled on the NATO intervention reveals further structural faults in the international system that favor Western states over the Third World.
Thus Koskenniemi’s ideas on the competing and equally valid conceptions of sovereignty resulting in either ascending or descending arguments explains that international law is indeterminate. This aspect of international law explains how India could defend its actions as self-defense in 1971 and certain NATO states described it as a humanitarian intervention in 2000. Moreover, the hegemonic contestation theory explains that international law is best explained as a technique of legal argumentation where actors seeks to make their individual political preferences seem like universally accepted norms, and given the fickle nature of political ties international law is intentionally vague. Viewing international law as such a hegemonic technique is useful in understanding how it was possible for certain NATO states to change their mind about the legitimacy of the 1971 intervention.
However, unlike Koskenniemi who argues that this aspect of international law makes law unpredictable and lacking of any constraining force, the NATO/Indian case study shows that, given the history of international law’s engagement with the Third World, it may be possible to predict how the law will treat the Third World in the future. While in theory it may be possible to debate answers to legal questions, in practice legal issues are generally resolved in ways that further Western interests and undermine Third World concerns. This is largely due to the lasting impact of colonialism on international law that has perpetuated North/South divides and created the political and legal conditions where Third World opinion is perceived as inferior to that of the West.
V. Bibliography
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Anthony Anghie, “Colonialism and the Birth of International Institutions: Sovereignty, Economy, and the Mandate System of the League of Nations” (2002) 34:1 N.Y.U. Journal of International Law & Politics 513
Antony Anghie, “Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century International Law” (1999) 40:1 Harvard International Law Journal 1.
Antony Anghie and B.S. Chimni, “Third World Approaches to International Law and Individual Responsibility in Internal Conflicts” (2003) 2:1 Chinese Journal of International Law 77.
Bruno Simma & Andreas L. Paulus, “The Responsibility of Individuals for Human Rights Abuses in Internal Conflicts: A Positivist View” (1999) 93: 2 American Journal of International Law 302.
Case concerning the legality of the use of force (Serbia and Montenegro v. Belgium), Preliminary Objections, [2004] ICJ Rep 279.
D.K. Palit, “The Lightening Camp: The Indo-Pakistan War 1971”, (Compton: Salisbury, 1972).
David A Martin, T. Alexander Aleinikoff, Hiroship Motomura and Maryellen Fullerton, Forced Migration: Law and Policy (St. Paul: Thompson/West American Case Book Series, 2007).
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Satish Nambiar, “India: An Uneasy Precedent” in Schnabel, Albrecht, and Thakur, Ramesh, Kosovo and the Challenge of Humanitarian Interventio : Selective Indignation, Collective Action, and International Citizenship. (Tokyo, JPN: United Nations University Press, 2000).
SC, 26th Year, 1606th Meeting, S/PV.1606 (4 December 1971).
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SC, 26th Year, 1621th Meeting, S/PV.1621 (21 December 1971)..
Sonia Cordera, “India’s response to the 1971 East Pakistan crisis: hidden and open reasons for intervention” (2015) 17:1 Journal of Genocide Research 45.
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Thomas M. Franck, and Nigel S. Rodney, “After Bangladesh: the law of humanitarian intervention by military force” (1973) 67:1 American Journal of International Law 275.
U Thant, View from the UN (Garden City, N.Y.: Doubleday, 1978).
Urvashi Aneja, “India, R2P and Humanitarian Assistance: A Case of Norm Containment, (2014) 6:1 Global Responsibility to Protect 227.
Usha Natarajan, “A Third World Approach to Debating the Legality of the Iraq War” (2007) 9:1 International Community Law Review 405.
Ved P. Nanda, “A Critique of the United Nations Inaction in the Bangladesh Crisis” (1972-1973) 49:1 Denver Law Journal 53.
[1] Jose-Manuel Barreto, “Six Books: International Law, Human Rights and the Politics of the Turn to History” Critical Legal Thinking (27 March 2015) online: Critical Legal Thinking <http://criticallegalthinking.com/2015/03/27/six-books-international-law-human-rights-politics-turn-history/>.
[2] Case concerning the legality of the use of force (Serbia and Montenegro v. Belgium), Preliminary Objections, [2004] ICJ Rep 279.
[3] Antony Anghie and B.S. Chimni, “Third World Approaches to International Law and Individual Responsibility in Internal Conflicts” (2003) 2:1 Chinese Journal of International Law 77 [Anghie and Chimni] at 101.
[4] Ved P. Nanda, “A Critique of the United Nations Inaction in the Bangladesh Crisis” (1972-1973) 49:1 Denver Law Journal 53 [Nanda].
[5] “[The Awami League] secured 288 of the 300 seats in the East Pakistani Assembly and also gained 167 of the 169 seats allocated to East Pakistan in the National Assembly.” Nicholas J. Wheeler, Saving Strangers: Humanitarian Intervention in International Society (New York: Oxford University Press, 2000) [Wheeler] at 56.
[6] Since independence the relationship between East and West Pakistan became increasingly polarized. Besides being physically separated by India, there were also lots of differences regarding the ethnicity, culture, language, and economy between East and West Pakistan. For example, in West Pakistan fifty-five million people spoke the official language of Urdu compared to only 2% of the population in East Pakistan (as over 95% of the seventy-five million people spoke Bengali). Also, eventually West Pakistan became more industrialized and prosperous than East Pakistan, and took complete control of the military and bureaucracy, which was an understandable concern for East Pakistan. This led to the population of East Pakistan to feel that they were “a colonial outpost by the West Pakistan Government” Wheeler, supra note 3 at 56. See also Richard Sisson and Leo E. Rose, War and Secession: Pakistan India, and the Creation of Bangladesh (Berkeley: University of California Press, 1990) [Sisson and Rose] at 8-34.
[7] Wheeler, supra note 3 at 56.
[8] West Pakistan interpreted the word “confederation” by the Awami League to imply such secessionist goals. Though Ved P. Nanda contends that “[t]his was accompanied by a change in the East Bengali mood which began to reflect desire for complete independence as opposed to mere autonomy”. Nanda, supra note 2 at 55.
[9] “The last attempt at resolving the conflict took place between 16 and 24 March 1971 and involved face-to-face meetings between the leader of the Awami League, Sheikh Mujibur Rahman, President Yahya Khan, and the leader of the West Pakistan People's Party, Zulfikar Ali Bhutto”. Wheeler, supra note 3 at 57.
[10] Nanda, supra note 2 at 55.
[11] Nanda, supra note 2 at 55.
[12] International Commission of Jurists, Events in East Pakistan, 1971: A Legal Study by the Secretariat of the International Commission of Jurists (Geneva, 1972) online:
<http://icj.wpengine.netdna-cdn.com/wp-content/uploads/1972/06/Bangladesh-events-East-Pakistan-1971-thematic-report-1972-eng.pdf> [International Commission of Jurists Report].
[13] Nanda, supra note 2 at 55.
[14] Thomas M. Franck, and Nigel S. Rodney, “After Bangladesh: the law of humanitarian intervention by military force” (1973) 67:1 American Journal of International Law 275 at 275 [ Franck and Rodney].
[15] Leo Kuper, The Prevention of Genocide (New Haven: Yale University Press, 1985) cited in Wheeler, supra note 3 at 56-58.
[16] International Commission of Jurists Report, supra note 10 at 97.
[17] Karel Wellens, Resolutions and Statements of the United Nations Security Council: (1946 - 1989); a Thematic Guide (London: Martinus Nijhoff Publishers, 1990) at 342.
[18] Nanda, supra note 2 at 56.
[19] See Repertory of United Nations Practice, “Article 98”, Suppl. 5 Vol. V (1970-1978), available at http://legal.un.org/repertory/art98/english/rep_supp5_vol5-art98_e.pdf, at 44-46.
[20] In letters to the Pakistani Government on 5 and 22 April 1971, SG U Thant accepted Pakistan’s position that the conflict in East Pakistan qualified as an “internal conflict” and hence fell within the domestic jurisdiction of the Pakistani government. Cited in Wheeler, supra note 3 at 58.
[21] U Thant, View from the UN (Garden City, N.Y.: Doubleday, 1978) cited in Wheeler, supra note 3 at 58.
[22] GA/10922-DEV/2790 (6 December 1971).
[23] Wheeler, supra note 3 at 58 and 66,
[24] Nanda, supra note 2 at.
[25] Wheeler, supra note 3 at 58.
[26] Wheeler, supra note 3 at 58.
[27] The border states of West Bengal, Assam and Tripura had been impoverished and unstable since the 1947 India/Pakistan partition and the government feared leftist revolutionaries such as the Naxalites to cause additional tension. in Gary J. Bass, The Blood Telegram: Nixon, Kissenger and a Forgotten Genocide (Toronto: Alfred A. Knopf, 2013) [Bass] at 120. See also D.K. Palit, “The Lightening Camp: The Indo-Pakistan War 1971”, (Compton: Salisbury, 1972) at 38; Sisson and Rose, supra note 4 at 178-181, 206.
[28] Prime Minister Indira Gandhi aptly described the refugee problem: “The regions which the refugees are entering are over-crowded and politically the most sensitive parts of India. The situation in these areas can very easily become explosive. The influx of refugees thus constitutes a grave risk which no responsible government can allow to develop.” NMML, Haskar Papers, Gandhi to world leaders, 14 May 1971 cited in Bass supra note 25 at 137.
[29] Sonia Cordera, India’s response to the 1971 East Pakistan crisis: hidden and open reasons for intervention (2015) 17:1 Journal of Genocide Research 45 [Cordera] at 51 and 53.
[30] Cordera supra note 27 at 49.
[31] Wheeler, supra note 3 at 66.
[32] David A Martin, T. Alexander Aleinikoff, Hiroship Motomura and Maryellen Fullerton, Forced Migration: Law and Policy (St. Paul: Thompson/West American Case Book Series, 2007).
[33] Nanda, supra note 2 at 56.
[34] Wheeler, supra note 3 at 60
[35] Wheeler, supra note 3 at 61.
[36] International Commission of Jurists Report, supra note 10 at 57.
[37] SC, 26th Year, 1606th Meeting, S/PV.1606 (4 December 1971) at 17.
[38] See UN Document S/PV.1606 supra note 36 at 15 and 17. “These incidents happened and, as a result, 10 million people came to India as refugees. Now, was that not a kind of aggression? If aggression against another foreign country means that it strains its social structure, that it ruins its finances, that it has to give up its territory for sheltering the refugees, if it means that all its schools have to be closed, that its hospitals have to be closed, that its administration is to be denuded, what is the difference between that kind of aggression and the other type, the more classical type, when someone declares war, or something of that sort” UN Document S/PV.1606 supra note 36 at 15.
[39] UN Document S/PV.1606 supra note 36 at 17.
[40] UN Document S/PV.1606 supra note 36 at at 3-4.
[41] See SC, 26th Year, 1608th Meeting, S/PV.1608 (6 December 1971) at 8-9 and 27-28; SC, 26th Year, 16011th Meeting, S/PV.1611 (12 December 1971) at. 4-14; SC, 26th Year, 1607th Meeting, S/PV.1607 (5 December 1971) at 18; SC, 26th Year, 16013th Meeting, S/PV.1613 (13 December 1971) at. 21, 23; SC, 26th Year, 1621th Meeting, S/PV.1621 (21 December 1971) at 11-12.
[42] Wheeler, supra note 3 at 62.
[43] The Indian Permanent Representative to the UN described the recommendation as “unrealistic, and hence unacceptable” and stated that “the good thing about a General Assembly resolution is that it is recommendatory, not mandatory.” Available at UN Monthly Chronicle (No. 1) at 28-29 (January, 1972) cited in Wheeler, supra note 3 at 69.
[44] SCR 307 was rightly described as “meaningless” by Wheeler, as the de facto reason why India ordered a ceasefire in the first place was due to the facts on the ground, and not because of the action of the UN. Wheeler, supra note 3 at 70.
[45] UN Document S/PV.1608 supra note 40.
[46] Wheeler, supra note 3 at 65-66.
[47] Ambassador Bush stated that “[…] United States has never supported this action in any way. We have always recognized that the events of 25 March had a very important impact on India, and we have always recognized that the influx of refugees into India broadened the danger of communal strife. We fully appreciated both the social and the economic strain the influx of refugees imposed on India. The fact that the use of force in East Pakistan in March can be characterized as a tragic mistake does not, however, justify the actions of India in intervening militarily and placing in jeopardy the territorial integrity and political independence of its neighbor Pakistan.” UN Document S/PV.1611 supra note 40 at 2.
[48] Wheeler, supra note 3 at 65-66.
[49] The Soviet Union’s Ambassador to the UN, Ambassador Malik, claimed: “It is quite obvious that the main cause is to be found in the well-known actions of the Government of Pakistan against the population of East Pakistan [the conflict] has become international in character and has given rise to international consequences.” UN Document S/PV.1608, supra note 40 at 12-14.
[50] Wheeler, supra note 3 at 69. It is noteworthy that Pluralist conception of international society broadly rejects the doctrine of humanitarian intervention in favor of state sovereignty while a Solidarist position favors justice over order.. Wheeler, supra note 3 at 71 and 77.
[51] Fernando Teson, Humanitarian intervention: an inquiry into law and morality (Dobbs Ferry, N.Y.: Transnational Publishers, 1988) at 188 cited in Wheeler, supra note 3 at 70.
[52] Wheeler, supra note 3 at 70.
[53] Gary Klintworth, Vietnam's intervention in Cambodia in international law (Canberra: Australian Government Pub. Service, 1989) at 49 cited in Wheeler, supra note 3 at 71.
[54] Wheeler, supra note 3 at 71.
[55] Bruno Simma & Andreas L. Paulus, “The Responsibility of Individuals for Human Rights Abuses in Internal Conflicts: A Positivist View” (1999) 93: 2 American Journal of International Law 302 [Simma and Paulus] at 27. (Using the concept to explain the rapid development of customary international law in internal armed conflicts).
[56] Simma and Paulus, supra note 54 at 26.
[57] “Only by being normative can law preserve a balance between its transformative force, which does not accept reality, as it is, and its roots in social reality […] Moral and political factors are not alien to the law” Simma and Paulus, supra note 54 at 31-32.
[58] Simma and Paulus, supra note 54 at 30.
[59] See Garima Mohan, “India and the Responsibility to Protect” (2014) 4:2 Asia Pacific Centre for the Responsibility to Protect 1, who argues that while India supports Pillars I and II of the R2P doctrine (i.e. it is the primary responsibility of states to protect their populations and the international community must help build state capacity to protect its citizens) India is primarily opposed to pillar III (which requires the international community to act in a timely and decisive manner to prevent atrocities as India sees this as a right to military intervention. See also Urvashi Aneja, “India, R2P and Humanitarian Assistance: A Case of Norm Containment, (2014) 6:1 Global Responsibility to Protect 227, who argues that India’s ideas on humanitarian assistance and the R2P doctrine largely reflect pluralist conceptions of international law. Satish Nambiar, “India: An Uneasy Precedent” in Schnabel, Albrecht, and Thakur, Ramesh, Kosovo and the Challenge of Humanitarian Interventio : Selective Indignation, Collective Action, and International Citizenship. (Tokyo, JPN: United Nations University Press, 2000) [Nambiar], claims that “[t]he strategic community of India has commented on [NATO’s involvement in the Kosovo bombing campaign] with near unanimity as regards their long-term implications. The aspects that have generated particular distress and concern are the arrogant violation of all international treaty norms, the transgression of state sovereignty as one has always understood it, the indiscriminate destruction of civilian infrastructure, and the killing of innocent civilians, by a regional organization comprising mostly of the developed countries of the Western world.”
[60] “The Logic Behind The Libya Decision”, Times of India (2 April 2011) online: Times of India <http://timesofindia.indiatimes.com/edit-page/The-Logic-Behind-The-Libya-Decision/articleshowprint/7845331.cms>.
[61] Martti Koskenniemi, “Sovereignty Prolegomena To a Study of the Structure of International Law as Discourse” (1987) 1:2 Kansainoikeus Ius Gentium 71 [Koskenniemi (1987)] at 71.
[62] Koskenniemi (1987), supra note 60 at 72.
[63]“The idea of sovereignty is inconsistent inasmuch as it expresses the State’s ‘subjective freedom’ as well as its ‘i objective submission’ to an international normative order”. Koskenniemi (1987), supra note 60 at 106.
[64] “International legal discourse does not establish priority between these conflicting models of legitimation […] The discourse cannot produce any coherent solutions to the inherent contradictions in the discourse.” Koskenniemi (1987), supra note 60 at 71-72.
[65] Koskenniemi (1987), supra note 60 at 83.
[66] Nambiar supra note 58.
[67] Koskenniemi (1987), supra note 60 at 72.
[68] Koskenniemi (1987), supra note 60 at 73.
[69] Martti Koskenniemi, “International law and hegemony: a reconfiguration” (2004) 17:2 Cambridge Review of International Affairs 197 [Koskenniemi (2004)] at 200.
[70] Koskenniemi (2004), supra note 68 at 200-201.
[71] It is noteworthy that Koskenniemi too highlights the exceptional nature of India’s ascending self-defense justification for its intervention in East Pakistan in 1971 agreeing that “[…] when extended to cover potential threats, sovereignty, too, may be invoked to support cosmopolitan causes.” Koskenniemi (2004), supra note 68 at 204.
[72] Koskenniemi (2004), supra note 68 at 203.
[73] Koskenniemi (2004), supra note 68 at 197.
[74] Koskenniemi (2004), supra note 68 at 197.
[75] “This is why it is pointless to ask about the contribution of international law to the global community without clarifying first what or whose view of international law is meant. However universal the terms in which international law is invoked, it never appears as an autonomous and stable set of demands over a political reality.” Koskenniemi (2004), supra note 68 at 199.
[76] Koskenniemi (2004), supra note 68 at 199.
[77] Koskenniemi (2004), supra note 68 at 199.
[78] Koskenniemi (2004), supra note 68 at 202.
[79] Koskenniemi (2004), supra note 68 at 199-200.
[80] Koskenniemi (2004), supra note 68 at 201.
[81] Allan Sofaer, “On Necessity and Prevention” (2003) 14:1 European Journal of Human Rights 209.
[82] Anghie and Chimni, supra note 2 at 101.
[83] Anghie and Chimni, supra note 2 at 101.
[84] Anghie and Chimni, supra note 2 at 101.
[85] Satish Nambiar, “India: an uneasy precedent” in Albrecht Schnabel and Ramesh Chandra Thakur, Kosovo and the Challenge of Humanitarian Intervention : Selective Indignation, Collective Action, and International Citizenship (New York : United Nations University Press, 2000).
[86] It is noteworthy that the other two cases certain NATO states relied on were also interventions conducted by Third World countries – Vietnam’s 1978 intervention in Cambodia and Tanzania’s 1979 intervention in Uganda.
[87] Makau Matua, “What is TWAIL?” (2000) 94:1 Proceedings of the Annual Meeting-American Society of International Law 31 [Matua (2000)] at 33.
[88] Anghie and Chimni, supra note 2 at 84.
[89] Usha Natarajan, “A Third World Approach to Debating the Legality of the Iraq War” (2007) 9:1 International Community Law Review 405 [Natrajan] at 409. See also Matua (2000), supra note 85 at 37.
[90] Natrajan (2007), supra note 87 at 409. Matua further contends that while the UN is ostensibly universal, in reality European hegemony is prominent. The primacy of the UN Security Council over the UN General Assembly (a body that was composed primarily of Third World states) makes a mockery of the notion of the sovereign equality amongst states. Matua (2000), supra note 85 at 34.
[91] Matua (2000), supra note 85 at 33.
[92] Matua (2000), supra note 85 at 33.
[93] Matua (2000), supra note 85 at 33
[94] Matua (2000), supra note 85 at 34.
[95] Antony Anghie, “Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century International Law” (1999) 40:1 Harvard International Law Journal 1 at 3.
[96] Natrajan (2007), supra note 87 at 408-409.
[97] Anthony Anghie, “Colonialism and the Birth of International Institutions: Sovereignty, Economy, and the Mandate System of the League of Nations” (2002) 34:1 N.Y.U. Journal of International Law & Politics 513 at 513, 622. Also Natrajan, supra note 94 (2007) at 410.
[98] Anghie and Chimni, supra note 2 at 85.
[99] Anghie and Chimni, supra note 2 at 86.
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