Almost a month in Rwanda, my dietary intake can be neatly classified thus:
My confreres at Opinio Juris tell me that Harold Koh, Legal Adviser to the State Department, has given OJ the text of his address on Syria at the on-going annual meetings of the American Society of International Law (ASIL) with a request to post it. The speech was (updated) on-the record event; the text is [now] up at OJ, and here is the opening:
Statement Regarding Syria
Harold Hongju Koh
Legal Adviser, U.S. Department of State
American Society of International Law Annual Meeting
March 30, 2012
It is my honor to speak here again at the annual meeting of the American Society of International Law. A year ago, I spoke before this audience about the international legal basis for the United States’ military operations in Libya. In that same spirit of openness and dialogue, I am grateful for the opportunity to engage so many distinguished international lawyers in this room about the very serious challenges we face in Syria today.
Let me divide my comments this morning into three: First, what, precisely, is happening in Syria? Second, what are the U.S. government and the international lawyers within it doing to address the crisis? And third, by what legal principles should this crisis be assessed and lawfully and effectively addressed?
Chinmaya R. Gharekhan, the PM’s former MidEast Envoy, and I debated the Indian response to the Syrian crisis in the op-ed pages of The Hindu today. I thank Amb. Gharekhan for taking the time and effort to respond to my assertions. Here are my thoughts on his rejoinder and queries posed therein.
Both Arun Mohan Sukumar and I agree that India’s vote was correct, but we seem to disagree on the rationale for the vote.
True. More importantly, our differing interpretations lead us to vastly divergent policy prescriptions. Amb. Gharekhan espoused a policy of non/dual alignment with Iran and Saudi Arabia, which at the end of the day, is no different from India’s traditional posture. I suggested India take a more active role to steer the crisis back to where it should be resolved, the UN.
He believes that in voting for the resolution, India set aside its geopolitical interests; I believe it is precisely these interests which dictated India’s vote, though it feels good to justify a vote as support for some principles.
Amb. Gharekhan is correct. Perhaps I should’ve rephrased to say “India set aside its established position”. That said, negotiating with BRICS to get a mandate for Syria at the UN is only going to strengthen India’s claim to a permanent seat. It reflects India’s commitment towards making the UN work, on which aspersions have been cast lately. Voting with the West may satisfy the sponsors of this Resolution, but other nations should be convinced as well that India has the temerity (if you will) to engage a crisis of this magnitude. I think Amb. Gharekhan is too quick to dismiss my argument as based solely on a moral or principled standpoint. It is not true to say that acting on the basis of moral conviction, as in the case of Syria, will yield little in terms of India’s national interest.
He talks of a Syrian-led transition. Is there such a thing? Is the negotiating process with the Taliban an Afghan-led process? Was the Libyan transition?
Both examples cited by Amb. Gharekhan are ones where military intervention was the first choice. Naturally, Afghanistan and Libya neither have the capability nor political will to broker a solution among internal stakeholders. This is exactly where Syria is headed. Supply of arms spills over to military intervention and there will be little scope for an organic transition.
The UN resolution - endorsing the Arab League proposal - tried to prevent this. As I’ve written, the backdoor for regime change was left open, and while that is no panacea to Syria’s crisis, it would’ve set the stage for what Nasr has called “Assadism without Assad”.
Sukumar does not seem to approve of the “Friends of Syria” forum. Does this mean that if India decides to join it, he would disapprove?
Yes, of course. In fact, reports from the Friends of Syria meeting in Tunis seem to suggest India has a representative in attendance. This is disappointing news. Having many nations in its corner may make Friends of Syria multilateral in letter, but not in spirit. The concept is no different from Bush’s invocation of a “coalition of the willing.” India’s acquiescence sends out the signal that it is willing to let other nations undercut the UN for crisis resolution when there is no consensus at the Security Council. If New Delhi had the muscle to pull it off, sure, this could be attractive. But not for a nation that aspires to permanence in the same entity it is sidestepping now.
I am not at all persuaded that if the Security Council resolution had been allowed to pass with abstentions by Russia and China, it would have acted like a magic wand and prevented sectarian violence.
Suppose that the Resolution had been passed. Given that Russia and China - two of Syria’s primary arms exporters - were on board (or atleast not standing in the way) Assad would have had to eschew violence or step down. The violence in Syria is reactionary - the Free Syrian Army is not on the offensive, but trying to consolidate its strength. Sectarian discontent would likely be prevalent even if Assad steps down, but it is difficult to foresee the present scale of violence had the Resolution come through.
This week, at the Boston Universty Research Conference on “Shifting World Order: The Reallocation of Power in the International System” I will moot a proposal to regulate nuclear deterrence postures of the N5+3, given that disarmament is a distant goal. My starting point is India’s CMD doctrine and her wholehearted acceptance of the ICJ’s advisory opinion on the use or threat of use of nukes. Can a synthesis of the ICJ’s opinion set the roadmap for regulatory frameworks in this field? I say yes - but strategic concerns cannot be wished away. Comments/criticism welcome.
Front-row seats to witness the Vietnam National Symphony Orchestra’s first tour to the United States. What a historic moment!
Big shout-out of appreciation to Ambassador Nguyen Vu Tung and Prashanth Parameswaran.
In [EPW], my response to Anand Teltumbde’s ‘Imperial Justice and Indian Frenzy’
By outlawing Salwa Judum, the Supreme Court performed its fundamental duty by the Constitution and set the issues in a rich, rights-based framework.
In the 1970s, the Supreme Court of India was called upon to decide the constitutionality of Excise Rules that allowed the State of Punjab to regulate the number of days, even hours, when liquor could be sold.
In a judgment peppered with literary references, ranging from Thomas Bacon to Bernard Shaw, the court considered the adverse effects of alcoholism and ruled in favour of the State. “The statutory scheme of the Act is not merely fiscal but also designed to regulate and reduce [the] alcoholic habit,” the court wrote, rather provocatively. But the verdict, delivered by one of the most eloquent judges to grace the Bench, was neither an indictment against drinking nor a call for total prohibition. The court intended to situate the case in its socio-economic context, and embellish the legal conclusions with references to literature and even popular culture.
This is no unusual practice: some of the most celebrated judgments in India and in other countries have been richly endowed with observations from sociological studies, political treatises and economic surveys. The most powerful constitutional courts in the world, like those in India, South Africa and the United States, have often used allusions to support landmark decisions and ground them in a rights-based framework.
Therefore, it must not come as a surprise that the Supreme Court’s recent decisions in the Salwa Judum, Greater Noida land acquisition and black money matters have been infused with a liberal dose of such ingredients. Nonetheless, the Supreme Court has received flak for its observations in these cases for being “simplistic,” “too sweeping,” and rather ironically, “judgmental.” While the rhetoric has certainly soared in these decisions, to suggest that the court’s remarks in these cases are tantamount to judicial overreach is ridiculous and far-fetched.
To be sure, the Supreme Court in these verdicts has neither chastised the “neoliberal” policies of the state nor prescribed a course correction. It has merely expressed displeasure over the damaging consequences of these policies, which often result in the deprivation of constitutionally guaranteed rights. The same court that now finds itself in the dock for ideological overtures has in the past quoted Adam Smith with approval, even endorsing the free market economy.
But to construe these observations as affiliation towards a particular ideology or policy is incorrect. If the words of Joseph Conrad and Joseph Stiglitz have found their way into these judgments, it is only to underscore the point that the state’s so-called “growth-oriented” policies have led to a gradual erosion of fundamental rights. A remedy to this situation is certainly the business of the judiciary.
In Nandini Sundar, the court found that the Chhattisgarh government exercised arbitrarily, and abused its power under, the Police Act to create a militia. By outlawing Salwa Judum, the Supreme Court not only performed its fundamental duty in checking executive power but also upheld the rights of civilians. In Ram Jethmalani, the court found the state wanting in its measures to curb the exodus of black money. As with the 2002 Gujarat riots, the Supreme Court was well within its constitutionally defined parameters to appoint a Special Investigation Team when the administrative machinery had been callous or complicit. InGreater Noida Industrial Development Authority, the court quashed hasty land acquisition by the Uttar Pradesh government that violated due process. In addition to upholding the rights of farmers to their land, the court condemned the unjust enrichment of the real estate lobby facilitated through skewed policies.
To arrive at these conclusions, the court cannot, and should not, rely solely on textual interpretations of the law. The Constitution is an organic document that operates not in isolation, but in tune with the lived realities of people. As the custodian of the Constitution, it is the duty of the Supreme Court not only to invalidate any arbitrary actions of the state but also to remind the government that its policies cannot undercut guaranteed rights. The observations of the court, or obiter dicta, are by no means binding on the government, but they often serve as a compass set towards an administrative policy that is in tune with the ideals of the Constitution.