Catalonia is a small country which is open to the world and has a track record of international openness. Thus, it makes sense for Catalonia to join the increasing debate created by diplomats, international organisations and public diplomacy institutions in social media
Over the last years public diplomacy has efficiently used these relatively new media as they make dialoguing with people in remote countries or across cultures a lot easier.
By definition, public diplomacy fosters dialogue with a strong emphasis on listening to what the other side has to say. Social media are ideal for dialogues and the exchange of ideas.
Nowadays, countries cannot ignore this, regardless of the size of their population, area or GDP. And this is also true for sub-state entities such as Catalonia.
If we accept that social media are one of the voices of the public opinion, then Catalonia’s public diplomacy has reason to take an active part in this borderless world at our fingertips. Catalonia has always promoted open dialogue.
The Public Diplomacy Council of Catalonia uses a variety of media in order to exchange ideas with the global public opinion. Please read the brief description below, further channels are likely to be added in the future according to specific target groups or contexts.
The Twitter profile @CatalanVoices is the main participatory public diplomacy tool currently used by the Council. It is managed by citizens following the concept of “rotation curation” invented by the Twitter profile @Sweden: every week a new citizen takes over. In our case, it is directly inspired by a sub-state public diplomacy benchmark, namely the Twitter profile @Scotvoices. Any citizen having lived at least three months in Catalonia can tweet her / his thoughts about Catalonia and everyday experiences, regardless of passport citizenship but always in English. So far, lifting one person per week from anonymity onto a global stage has guaranteed a steady flow of diverse topics, inputs, points of view and interests. The main goal of this profile is to provide first-hand knowledge about Catalonia through those who know the place best, namely its residents.
The Twitter account @ThIsCatalonia is the official account of the Public Diplomacy Council of Catalonia. Council-related or third-party news relating to Catalonia are broadcast in English or additional languages in order to reach specific audiences. Moreover, questions and suggestions referring to the activities of the Council or Catalonia in general are directly answered or referred to the institutions in charge.
Pinterest
http://pinterest.com/ThisisCatalonia
The Pinterest account “This is Catalonia” uses the power of imagery in order to make Catalonia known by an even larger audience. Photographs grouped in categories, a regular feature of this social network, are open to selected Pinterest users who complement the mosaic of images through their contributions.
Google Hangouts i Canal YouTube
http://www.youtube.com/user/DiplocatOficial
Google Hangouts allows for several participants without geographic proximity to broadcast their conversation live via Google+ and converts it into video which, subsequently, is uploaded to a popular video platform called YouTube.
The main goal of the Council’s Google Hangouts is to hold brief debates with Catalans and citizens from all over the world about Catalonia-related news in general or globally relevant topics to which Catalonia can contribute expertise or best practices.
Speaker: Professor Ben O’Loughlin, Royal Holloway, University of London
School of Social and Political Sciences Seminar Series 2014
Joseph Nye states that the future of power is a matter of whose story wins. As material power becomes more evenly spread between the US, EU and BRICS, so persuasion and attraction become a more valuable edge. International Relations has gone digital, as the Wikileaks and Snowden affairs demonstrate. But states are seeking to wrest back control by investing in information infrastructures through which they can project narratives about the future of international affairs. Strategic narratives are projections of the past, present and future of international relations used to shape the behaviour of actors at home and abroad. This lecture investigates how governments join theories and models of international communication with methodologies and devices to conduct strategic narrative campaigns. Digital technology and Big Data promise a step-change in capacity for real-time multilingual monitoring of narrative effects on target population behaviour and attitudes. But can any single state offer a narrative that others can buy into? And will digital methods take on a life of their own in generating new connectivity and visibility in international relations? This lecture explores the theory, practice and ethics of strategic narratives, so that we can make sense of power and communication in the 21st century.
Ben O’Loughlin is Professor of International Relations and Co-Director of the New Political Communication Unit at Royal Holloway, University of London. He is Specialist Advisor to the House of Lords Committee on Soft Power and UK Influence. He is co-editor of the Sage journal Media, War & Conflict. He has carried out projects on media and security for the UK’s Economic and Social Research Council and the Centre for the Protection of National Infrastructure. His latest book is Strategic Narratives: Communication Power and the New World Order (2013, with Alister Miskimmon and Laura Roselle). Ben is currently completing a study of global responses to the 2012 London Olympics with the BBC. He tweets @Ben_OLoughlin
Location: Room W/222, Wentworth College
Admission: is by free ticket only. Please book below.
The economic and political aspects of social media development reflect more general trends taking place in the world, generated by the logic of the network society.
Some Russian politicians know that social networks are a high-risk zone. President of the Russian Olympic Committee Alexander Zhukov, left, and Prime Minister Dmitry Medvedev at the volleyball match between Russia and UK. Source: Kommersant
Social trends and social networking became synonymous with Internet usage in 2013. Russia Direct sheds light on the role of social media as platforms for debate, protest and state surveillance in the new information world.
Changes in the market landscape of social media
While Facebook and Twitter remain the most popular social networks, Google+ is gaining prominence in 2013, and is second in monthly users after Facebook.
With the appearance of new market players, some companies are losing audience, such as Foursquare, because other social networks now offer integrated location services. With the amount of active Facebook users exceeding one billion the terms “Internet user” and “social media user” became synonymous. Social media companies offering interactive services such as text messaging, e-mail, photo sharing, social networking, and the like, are shaping users’ behavior, preferences and attitudes.
Most popular social media companies are U.S.-based and appear to promote U.S. values thereby producing suspicion among non-western governments.
Losing the right to be forgotten
There is a trend of increasing social networking through image-sharing and video-sharing rather than text, which spurs the huge growth and popularity of Instagram, Slideshare and Tumblr. Mobile usage of social media is also becoming significant.
These trends have evolved into a more unified communication, combining the possibilities of text, video and voice media. In this environment analytical data is rare, unpopular and ever harder to consume, which increases the role of social media in shaping the information preferences and social behavior of their users.
Another significant trend of 2013 dealt with the appeal of “the right to be forgotten,” or the ability to delete private or sensitive information from social media. This has led to the rise of Short Lived Social Networks. For example, Facebook supports the video- and image-sharing social network SnapChat where content vanishes seconds after being received.
Digital diplomacy is becoming popular among Russia’s officials. The Russian Foreign Ministry currently has around 70 official accounts on Twitter. Source: Kommersant
The rise of the niched network
LinkedIn, which is oriented toward creating social space for professional communication is the fourth largest network by the number of total users (after Facebook, Twitter and Google +). The growth of niched networks oriented towards target audiences or specific needs not met by social media giants is expected to continue.
In some areas the niched industry-oriented networks change the operating and governance modes. For example, networking is a tool in science and education management. The effectiveness of a university, both in Russia and abroad, is measured by the indexes reflecting the amount of publications and the number of citations.
Citations and peer reviews of research papers are indexed by bibliometric systems such as Scopus, Web of Science and Russian Index of Research Citation. These indexes and systems serve as platforms for interactive communication within the research community.
Local “sovereign” social networks surge
The total number of social media users is growing much faster in non-western countries located in the Asia-Pacific (including China, India, and Indonesia), Latin America, Middle East and Africa, than in Europe and North America.
Local “sovereign” networks, such as the SinaWeibo microblogging service in China or social network VKontakte in Russia, are becoming more popular in these countries then foreign networks. Generally this is the result of the state policy. As journalist and media researcher Bill Ristow points out, governments are suspicious towards U.S.-based social media companies and thus are getting more sophisticated in their approach to managing the Internet.
Rather than simply trying to block social media altogether, they allow some form of controlled access–and then use it as a way of monitoring citizen behavior.
Social media and social campaigns have given companies and governments access to unprecedented volumes of raw data about users. Until recently the problem has been the inability to analyze this data and turn them into information – and then to actionable policy. But new tools and applications make it possible to manage big data. For instance, social media command centers provide dedicated interfaces for tracking social statistics, everything from tweets and likes to customer sentiment.
Business is mostly interested in social media data management for advertising purposes, while politicians are more concerned about tracking political attitudes and governing mass behavior for political purposes.
The Social is now Political
Social media has become an essential factor of political life in many countries. Despite the disillusionment toward the outcomes of revolutions in the Internet age, which does not necessarily improve democracy, as the present events in Egypt show, social media has been widely used for coordination of mass political actions for nearly all of the world’s political movements, including “Euromaidan” protests in Ukraine in the winter 2013.
Ukranian protesters don’t give up. Photo: AFP / East News
As Clay Shirky in the article for Foreign Affairs points out, “social media have become a fact of life for civil society worldwide… With the tools provided by social media, which are based on the interactive model of instant information sharing … the networked population has more opportunities to engage in public speech, and an enhanced ability to undertake collective action.
Social media equals a threat to security
Social media is seen as a threat to national security in many countries. For example, in Russia the new document “Basics of the state Policy on the International Information Security till 2020” lists the possibility to interfere with the usage of information and communication for interference in the internal affairs of sovereign states, violation of public order, incitement of ethnic, racial and religious hatred, propaganda of racist and xenophobic ideas or theories that generate hatred and discrimination, incitement to violence. This implies the usage of social media in coordination of mass protests.
The same is true for many other countries; some of the governments even decide to block the access to U.S.-based social media (e.g. Iran and China). There are continuous attempts to introduce the idea of “sovereign internet” on the international level.
E-diplomacy or digital diplomacy remains a popular and effective diplomatic tool. Social media offers a way to talk to a target audience without the filter of the traditional media. Digital diplomacy was first used as a public diplomacy tool by the U.S. government, but in 2013 many other countries followed suit. At present more than 100 countries are carrying out e-diplomacy programs.
The Russian ministry of foreign affairs accelerated the pace of social media in the everyday diplomatic work of 2013. The Russian Foreign Ministry currently has around 70 official accounts on Twitter. The most popular (@MID_RF) is read by about 65,000 people.
The Foreign Policy Concept of the Russian Federation of 2013 states that “new information and communication technologies will be widely utilized” in order to “create an objective perception of Russia in the world” and “develop effective domestic means to exert informational influence on public opinion abroad.” In 2013 Russian e-diplomacy initiatives were developing at a very fast pace.
Reshaping U.S. digital diplomacy in light of Snowden
Former NSA contractor Edward Snowden. Photo: Reuters
Edward Snowden’s revelations regarding National Security Agency (NSA) surveillance practices were by far the most significant information security event of the year. These revelations undermine the claim of U.S. digital diplomacy to support Internet freedom aimed at open access to social media tools (such as the ability to use Wikipedia and Google inside Iran) as well as the freedom of ordinary citizens to produce their own content and to converse with one another (such as the Chinese citizens’ capacity to use text messaging without interference).
The Snowden affair showed that while pushing for Internet freedom the U.S. government collected private and sensitive information about social media and Internet users and wasn’t open enough itself. Digital corporations, including Apple, Facebook, Google, LinkedIn, Microsoft, Twitter and Yahoo! – wrote a collective letter to President Barack Obama and members of Congress, which called for reform of the NSA. According to them, the government should restrict the right of the security services to collect personal data and improve attractiveness of the NSA.
Starting in 2011, a new generation of diplomats began using social media to get their message out. So what has changed with e-diplomacy since then?
Drafting a tweet, a Facebook post, or a blog post will become a part of the routine duty for modern diplomats. Pictured: Russia’s Prime Minister Dmitry Medvedev (R) and Foreign Minister Sergei Lavrov. Photo: Reuters
The peak of e-diplomacy occurred in 2011-2012, bringing with it widespread attention to a new generation of diplomats using social media to get their message out. In both Russia and the West, new terms emerged to capture this phenomenon: the U.S. State Department coined the term 21st Century Statecraft; the UK Foreign Office created the term Digital Diplomacy; and Russia’s Ministry of Foreign Affairs used the term Innovative Diplomacy.
So what has changed since then? Does e-diplomacy have as promising future as it appeared a couple of years ago?
The state of e-diplomacy today
Today, diplomats use Facebook, Twitter, YouTube and country-specific social media networks such as Russia’s VKontakte or China’s Weibo.
Eighty-two foreign ministries currently have Twitter accounts, and 47 ministers of foreign affairs are personally on Twitter. The two most popular foreign ministers on Twitter are Abdullah bin Zayed (@ABZayed) of the United Arab Emirates and Turkey’s Ahmet Davutoğlu (@Ahmet_Davutoglu) – each with more than 400,000 followers. In third place is Sweden’s minister Carl Bildt (@CarlBildt) with over 246,700 followers.
Only three years ago, this kind of diplomacy was considered rather extraordinary. Historically, diplomacy was a cautious and circumspect endeavor, with meetings conducted mostly behind closed doors.
Now e-diplomacy tools have become a core part of public diplomacy, which has its goal establishing contacts with a target online audience and then directly addressing this audience with specific messages anywhere in the world.
However, e-diplomacy is much more than mere public diplomacy. It also represents a form of information management, or the management of knowledge and experience accumulated by foreign ministries. In consular affairs, e-diplomacy tools simplify processing of visa documents and facilitate direct contacts with citizens abroad. And last but not the least, in the occurrence of emergencies and natural disasters, e-diplomacy tools become particularly useful, providing foreign citizens a means of communication with their state embassies or consulates.
U.S. and e-diplomacy
Today, the United States leads the way in digital diplomacy. The U.S. State Department has had an office of e-diplomacy since 2003, but it was Hillary Clinton who took it to a completely new level. In 2009, she launched “21st Century Statecraft,” a program that was designed to complement traditional foreign policy tools with new innovations in statecraft that fully leverage the networks and technologies of an interconnected world.
As a result, the State Department essentially become a global media domain managing 288 Facebook pages with 12.9 million fans; 196 Twitter accounts with 1.9 million followers; and 125 YouTube channels that have racked up 16.3 million views.
However, digital diplomacy doesn’t seem to be improving America’s image abroad. According to a 2013 BBC survey, U.S. popularity declined seven percentage points – from 47 to 40 percent – from 2009 to 2012. In fact, America’s popularity worldwide is now as low as when President Bush left office in 2009.
It’s quite possible that’s why Hillary Clinton’s successor, U.S. Secretary of State John Kerry, still prefers offline diplomacy over online. In March 2013 in his briefing he emphasized, “The term digital diplomacy is almost redundant – it’s just diplomacy, period.” Kerry’s Twitter and Facebook accounts – last updated in 2012 – are dormant.
Russia and e-diplomacy
The Department for Information and Press of the Russian Ministry of Foreign Affairs carries out online communication on the Internet and manages Russia’s growing social media presence. In 2011, an official Twitter account of the Ministry was launched, and in 2012, an official YouTube account (“midrftube”) was opened to the public. Whereas America’s “21 Century Statecraft” is a strategic platform, announced and published online, Russian digital diplomacy remains something still undefined.
Since February 2013, the Ministry has had a Facebook page with about 13 thousand subscribers. If on Twitter and YouTube, the Ministry’s content is represented in both Russian and foreign languages, the Ministry of Foreign Affairs’ account on Facebook remains solely in Russian, thus potentially limiting the target audience of social media accounts outside of Russia and the post-Soviet space.
In contrast, the U.S. State Department communicates with a Russian audience on Facebook in Russian. It also has 10 official Twitter feeds in Arabic, Chinese, English, Farsi, French, Hindi, Portuguese, Russian, Spanish, Turkish and Urdu. Most of the Foreign Ministries over the world communicate with their audience in English. Most of Russians embassies and consulates carry out communications in English and the languages of the host countries, so it makes sense also to have a social media presence in English.
Does e-diplomacy still have a promising future?
Looking ahead, e-diplomacy will be integrated into the way nations interact with each other. Drafting a tweet, a Facebook post, or a blog post will become a part of the routine duty for modern diplomats.
Two years ago, e-diplomacy had only a few supporters. Those were Alec Ross, Clinton’s senior advisor for innovation, and Jared Cohen, a member of her policy planning staff.
Since then, new players in the e-diplomacy field have emerged including Digital Director of the Israeli Embassy in Washington Jed Shein, Head of Digital diplomacy at the British Embassy in Washington Scott Nolan Smith, Maria Zakharova, Deputy Director of the Russian Foreign Ministry’s Information and Press Department, and others.
As e-diplomacy expands, it will obtain more supporters and champions across continents and countries. For its further development and implementation across the world, e-diplomacy practitioners will have to keep in mind the changing nature of social media.
This means that a digital diplomacy strategy needs to be as simple and clear as possible so that it can be adapted in real-time. It also means that foreign ministries need to realize that the message in social media cannot always be controlled. Going forward, the driving engine of e-diplomacy will be the young generation of diplomats who grew up using social media platforms everyday.
Digital soft diplomacy, particularly in its social media dialogue dimension, is the tip of the “digital diplomacy” iceberg.
What is soft diplomacy? What is its relationship with digital technology?
Our soft diplomacy is aimed notably at promoting France’s image and thus defending our economic, linguistic and cultural interests. It also aims to raise general public awareness of the Ministry’s work. It results from the combined efforts of the Ministry of Foreign Affairs’ central services and diplomatic network.
Soft diplomacy increasingly relies on every aspect of digital technology (applications, websites, social networks, etc.). The social web has become a keystone.
The Ministry of Foreign Affairs was in 1995 one of the first French institution to set up a website. The France Diplomatie website now has close to 1.7 million visitors each month, almost a third of who consult its flagship service: Conseils aux voyageurs(Travellers’ advice).
Since 2008-2009, the Ministry of Foreign Affairs has had a proactive communication policy on social networks. It was, for example, the first French Ministry to create a Twitter account in spring 2009: @francediplo in French and @francediplo_EN in English.
On the social web, diplomacy is no longer merely a matter of State-State relations, but also of State-civil society relations. Social networks allow the Ministry to listen to the general public and dialogue directly with them.
Since October 2012, a weekly question and answer session on Twitter allows users to converse with officials from the Ministry of Foreign Affairs using the #QRdiplo hashtag.
The Ministry of Foreign Affairs has created “France Diplomatie” accounts on several platforms in various languages.
The three focuses of the MAE’s digital communication strategy
Strengthening dialogue with French and foreign civil society;
Strengthening the “public service” dimension of France Diplomatie and quality of service more generally;
Supporting diplomatic network in terms of digital communication.
Here are a few tangible examples of projects implemented in 2013 under these strategic focuses:
the graphical and ergonomic redesign of the France Diplomacy using responsive web design techniques, in April 2013;
the editorial redesign of the whole site;
the planned creation of a Twitter account to centralize the Ministry’s job offers;
the emphasis on the creation of infographics;
the development of digital publications;
the creation of new foreign language accounts on Twitter and Facebook;
the development of new practical services;
the graphical and ergonomic design of the website template provided to the diplomatic network, planned by early 2014.
The digital communication of France’s diplomatic network
More than 265 French diplomatic posts have a website, communicating in some 15 languages in total.
Nearly 100 French embassies and consulates use social networks. They mainly use Twitter and Facebook, but they are capable of adapting to the most widespread local usages and platforms. France’s Embassy to China, for example, uses the Weibo platform.
The Ministry of Foreign Affairs’ digital soft diplomacy strategy includes the diplomatic network in its main development focuses: The Ministry provides its diplomatic network with numerous tools and services, including editorial support, templates for embassy and consulate websites, hosting solutions, telephone and online assistance, and tutorials. This support concerns both their institutional website communication and social networks. Since 2011, the Ministry of Foreign Affairs has implemented a social web training programme for all diplomats newly posted abroad. Refresher courses are also provided, in the framework of the Diplomatic and Consular Institute (IDC).
The Ministry of Foreign Affairs was awarded a prize for its communication on social networks during the 2013 Victoires des Acteurs publics prize ceremony.The readers and editorial team of the Acteurs publics magazine voted for those who work every day to provide the best possible service to the public.
Since 2009, the Ministry of Foreign Affairs has been present on the social web to better publicize its work, promote France’s positions on different international issues and enhance dialogue with the various civil society stakeholders. It is now present on close to a dozen platforms and attracts a very wide audience, with over 260,000 followers on Twitter and almost 100,000 likes on Facebook.
On social networks, the Ministry of Foreign Affairs seeks to showcase field diplomacy, to dialogue with the public and to create content particularly suited to social networks, such as infographics and interactive maps. It has a network-oriented model, with increasing numbers of embassies and consulates communicating on social networks (close to one-third are present on Twitter).
While the concepts of international law can be traced back thousands of years,[1] the modern structure of international law developed in the seventeenth century through the work of scholars such as Hugo Grotius,[2] culminating in the Peace of Westphalia in 1648. At its foundation was the notion of international law regulating sovereign, equal states free to govern without external interference.[3] This classical notion of international law has increasingly been challenged by liberalism,[4] critical of the dichotomist view of the law separating the international and domestic spheres and in the process perpetuating the state-centric approach to the law.[5] The tension between the two dominant theories of realism and liberalism in describing and directing the evolution of the law is explored; and we posit, consistent with the liberal view, that the state-centric realist paradigm of international law is inconsistent with the increasing emphasis placed on the rights of individuals.
The Classic Model – Diplomatic Immunity
As mentioned above, the focus of international law has been inter-state relations.[6] Despite the rights of individuals being considered by classical scholars,[7] the lack of standing of individuals in relation to violations of treaties,[8] unless the treaty provided for individual rights and obligations,[9] perpetuated the state-centric nature of international law. This position was illustrated by twentieth century assertions of scholars that states exclusively are the subjects of international law.[10]
Diplomatic protection allows a state to bring an action on behalf of its citizen based on the Vattelian Fiction,[11]that a wrong committed against a national is a wrong committed against the national’s state.[12] This was reiterated in the Draft Articles on diplomatic Protection which was adopted by the International Law Commission in 2006,[13] and which the General Assembly took note of.[14]
This somewhat ameliorates the difficulty that standing non-state entities face. However, it is clear from the Barcelona Traction case that the decision to exercise diplomatic protection is at the discretion of the state,[15] and the state may choose not to exercise this protection due to political or indeed any other reasons unrelated to the case.[16]
Commentators have suggested that the absence of a legal duty compelling a state to exercise diplomatic protection on behalf of an injured national is illuminatory of the distinction between what the law is (‘lex lata’) as opposed to what it should be (‘lex ferenda’).[17] An early version of the Draft Articles on Diplomatic Protection[18]proposed just such an obligation for a state wherein there is a grave breach of a jus cogens norm in the absence of extenuating circumstances.[19] While not ultimately included in the final version, it is indicative of the trajectory of international law in the attempt to accommodate the rights of sub-state entities.
Contemporary Challenges
It is clear that the state-centric paradigm is evolving to one that is more inclusive of the role of non-state entities such as NGOs, interest groups and global corporations possessed of rights and responsibilities.[20] This is reflective of the greater power of non-state entities in influencing the world order. However, in most instances the claim of an individual must still be subsumed within that of the national state,[21] which continues to constrain the ability of non-state entities from participating fully in the international legal arena.
Intersection of International Relations and Law
The nature of international law, created as it is by states through treaties or a preponderance of state practice, is influenced by politics.[22] International law and politics together comprise the international system which is studied and manipulated by political scientists, lawyers and policy makers.[23] Given this characteristic of international law, theories used to describe it become instrumental in dictating the direction in which the law evolves.[24]
The two dominant international relations theories that explain state behaviour are Realism and Liberalism.[25] The realist approach is characterised by self-interested states, interacting in an anarchical system like billiard balls, opaque and unitary entities colliding with each other.[26]
Liberalism, by contrast, has three main assumptions:[27]
Actors in politics are individual members and groups of domestic society promoting their self-interest;[28]
Governments represent a sub-section of society, whose interests are reflected in foreign policy;[29]
Behaviour of States, especially pertaining to conflict and co-operation, reflect the nature and configuration of state preferences.[30]
The genesis of the liberalist movement in international law can be traced back to the seminal work of Kant’s perpetual peace.[31] His thesis that liberal states would coalesce into a confederation of peace conserving states (‘foedus pacificum’),[32] has been tremendously influential. For example, when speaking before the British Parliament, the President of the United States of America, Ronald Regan, claimed that governments founded on liberal principles of individual liberty exercise restraint in foreign policy before proceeding to declare a crusade for freedom and democratic development.[33] This was coupled with the use of force – despite its illegality[34] – against the illiberal state of Nicaragua.[35] The potency of Liberal theory in both describing but also influencing international relations, and to a lesser degree the international legal system, is apparent.
Relationship Between International and Municipal Law
The relationship between international and domestic law is not settled,[36] with the two dominant theories being monism and dualism.[37] Monism asserts that there is a single body of law that regulates human interaction, with international law residing at the apex of this system.[38] In diametric contrast, dualism claims international and domestic law are separate,[39] with international law requiring incorporation by a state before it operates in the national sphere.[40] A third explanation – the harmonisation theory – has emerged to address deficiencies in the dominant paradigms. This assumes that international law forms part of domestic law, but that in the case of conflict domestic law prevails.[41]
States are required to conform to international law in good faith,[42] and are responsible for any breaches that will not be excused through an invocation of its constitution or any other domestic law.[43] The increased ambit of international law in the domestic sphere can be discerned by treaties and jus cogens norms that require domestic implementation by states – such as the Geneva Conventions of 1949 in relation to war victims,[44] Statutes of the International Criminal Tribunal for Rwanda,[45] and of the former Yugoslavia,[46] in addition to the ICC.[47] In relation to jus cogens norms against torture for example, states are compelled to implement legislation to criminalise torture.[48] However, this argument is tempered by the reality that international law does not generally prescribe or regulate implementation of international obligations.[49]
With latitude in terms of implementation of international law, two distinct trends can be observed from a comparative analysis of state practice.[50] In the first case, automatic standing incorporation, international law is automatically incorporated into domestic legislation without requirement of domestic legislation.[51]The second method is legislative ad hoc incorporation,[52]also known as transformation,[53] which allows international law domestic application only where it has been implemented by an act of parliament.[54]
In Australian jurisprudence, a definite adoption of either theory has not occurred,[55] but there has been a preference for the transformation theory,[56] with a rejection of automatic incorporation doctrine.[57] This has been elucidated by statements asserting that international law, while not a part of the body of domestic common law, is nonetheless one of the sources of English law.[58] More recent judicial pronouncement has confirmed this, with the proviso that in the case of a clash between domestic common law and customary international law, the court may choose to adopt international law.[59] Such a view can constrain international law from applying domestically even in cases where a fundamental breach of the laws of nations, such as genocide for example, [60] is alleged to have occurred, because the crime might not part be part of the domestic law.
State Immunity
This doctrine, also known simply as sovereign immunity, allows foreign states to enjoy jurisdictional immunity as it proscribes litigation which might result in a state appearing as a defendant.[61] The historical basis for the immunity derives from the fact that a head of state was not subject to the authority of the courts, and by extension through the principle of sovereign equality, from the courts of other states.[62] State immunity, as part of customary international law, is underpinned by the principle of sovereign equality,[63] respect and dignity of other states,[64] and encompasses criminal and civil proceedings.[65] This aspect of customary international law has been incorporated in Australia through federal legislation,[66] and the immunity extends to the conduct of foreign nationals acting in the official capacity of a state.[67]
The scope of the immunity has narrowed over the years, from an absolute immunity to one requiring a state to be acting in a sovereign capacity (‘jure imperii’) as distinguished from private activities (‘jure gestionis’) usually entailing commercial activities.[68] State immunity is not generally afforded for commercial, employment contracts, personal injury or infringement of intellectual property.[69]
The application of this rule can be a cause of consternation. For example, the House of Lord in Jones v Saudi Arabia,[70] decided when applying The Arrest Warrant case[71]that immunity was not to be denied to Saudi Arabia or its agents for torture.[72] This was followed in Fang v Jiang Zemin.[73] By shielding a state and her agents through state immunity, gross violations of international law breaching jus cogens norms such as torture can be carried out without effective judicial censure. This perpetuates the state-centric paradigm at the cost of the rights of individuals.
Act of State Doctrine
Articulated as the act of state doctrine,[74] state practice particularly in common law nations requires respect for the independence of other sovereign states without an examination of the acts of such states in domestic courts.[75] While it has been argued by some academics that this doctrine is of common law import rather than a product of customary international law,[76] in A-G (UK) v Heinemann Publishers Australia Pty Ltd[77] (‘Spycatcher’)the Australian High Court, relying on Oetjen v Central Leather[78] (‘Oetjen’),held that the doctrine is founded on international law principles of comity and expediency.[79]
In Oetjen the court utilised such a reasoning to refuse enforcement of intellectual property rights in the form of a patent issued by a foreign state.[80] This was a somewhat puzzling decision given that the philosophical basis of the doctrine is respect and courtesy of other states, which one might expect to lead to enforcement of a patent granted by a foreign state. This reluctance was demonstrated again in Spycatcher where the High Court refused to enforce penal laws of a foreign state.
It has been suggested that this doctrine is unjust due its denial of private rights,[81] as occurred in Dagi v Broken Hill Proprietary Company Limited (No 2).[82] In this case, the action of the plaintiffs in Papua New Guinea against a mining company was barred, as it would involve examination of whether a foreign state had committed a breach of trust by not pursuing compensation claims of residents as permitted under the contract.[83] This prevented what was ostensibly the private right of a non-state entity from succeeding, and which arguably would fall within the jure gestionis exception to state immunity if the state had been sued directly .
Liberalism – Limitations?
Liberalism, in seeking the expansion of the role of non-state entities and which by consequence would dilute state sovereignty, may lead to unexpected consequences.As explained by Kingsbury:[84]
State sovereignty as a normative concept is increasingly challenged…but discarding sovereignty…will intensify inequality, weakening restraints on coercive intervention…and redivide the world into zones.
Conclusion
The view espoused by certain international law scholars[85] is that the classic conception of international law fails to adequately deal with contemporary circumstances. This appears to be a justified claim, especially given the heightened emphasis on the protection of individual rights. The multifaceted reasons for this view have been touched upon briefly, which encompass issues of standing, state sovereignty and immunity, in addition to the complex interplay between municipal and international law. A brief reference has also been made to the critique of liberalism – that the dilution of state sovereignty might impose costs of its own.
Bibliography
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Cassese, Antonio, International Law (Oxford University Press, Oxford, 2nd ed, 2005)
Fox, Hazel QC, The Law of State Immunity (Oxford University Press, Oxford, 2002)
Higgins, Rosalyn, Problems and Process: International Law and How We Use It (Clarendon Press, Oxford, 1994)
Grotius, Hugo, De Jure Belli ac Pacis Libris Tres (1625),cited in Neff, Stephen C, ‘A Short History of International Law’, in Malcolm D Evans (eds), International Law (Oxford: Oxford University Press, 2006, 2nd ed)
Kant, Immanuel, ‘Perpetual Peace: A Philosophical Sketch’ in Reiss, Hans (eds), H.B. Nisbet (trans) Kant’s Political Writings (Cambridge University Press, Cambridge, 1970)
Kelsen, Hans, General Theory of Law and State (Russell Russell, New York, 1961)
Kelsen, Hans, Pure Theory of Law (University of California Press, Berkley, 1967)
Lord McNair, International Law Opinions: Selected and Annotated (Cambridge University Press, Cambridge, 1956)
Mann, Fritz Foreign Affairs in English Courts (Clarendon Press, United Kingdom, 1986)
Mason, Anthony, ‘International Law as a Source of Domestic Law’ in Opeskin, Brian and Donald Rothwell (eds), International Law and Australian Federalism (Melbourne University Press, Melbourne, 1997)
Nussbaum, Arthur, A Concise History of the Law of Nations (Macmillan, New York, 3rd ed, 1961)
Oppenheim, Lassa, International Law (Longmans and Co., London, 1905) [13]; Hersch
Lauterpacht, International Law: Collected Papers, Volume II (Cambridge University Press, Cambridge, 1975)
Shaw, Malcolm, International Law (Cambridge University Press, Cambridge, 2008, 6th ed)
Stellios, James, ‘International law and Municipal Law’ in Fonteyne, Jean-Pierre, Anne McNaughton and James Stellios (eds), Harris – Cases and Materials on International Law: An Australian supplement (Lawbook Sydney, 2003)
Wolfers, Arnold, Discord and Collaboration: Essays on International Politics (John Hopkins Press, Baltimore, 1962)
Journals
Alderton, Matthew,‘The Act of State Doctrine: From Underhill to Habib’ (2011) 12 Melbourne Journal of International Law 1
Blank, Yishai, ‘Localism in the New Global Legal Order’(2006) 47(1) Harvard International Law Journal 26
Cederman, Lars-Erik, ‘Back to Kant: Reinterpreting the Democratic Peace as a Macrohistorical Learning Process’ (2001) 95 The American Political Science Review 15
Doyle, Michael W., ‘Liberalism and World Politics’ (1986) 80(4) The American Political Science Review 1151
Garnett, Richard, ‘Foreign States in Australian Courts’ (2005) 29(3) Melbourne University Law Review 704
Kingsbury, Benedict, ‘Sovereignty and Inequality’ (1998) 9 European Journal of International Law 599
Slaughter, Anne-Marie, ‘International Law in a World of Liberal States’ (1995) 6 European Journal of International Law 503
Slaughter, Anne-Marie and William Burke-White, ‘The future of international law is domestic (or, the European way of law)’ (2006) 47(2) Harvard International Law Journal 327
Trimble, Phillip R, ‘Globalization, International Institutions, and the Erosion of National Sovereignty and Democracy’ (1997) 95(6) Michigan Law Review 1944
Cases
A-G (UK) v Heinemann Publishers Australia Pty Ltd (1988) 165 CLR 30
Ahmed Ali Al-Kateb v Godwin 219 CLR 562
Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium) (Judgment) [2002] ICJ Rep 3
Barcelona Traction, Light and Power Company Limited (Belgium v Spain) (Second Phase) [1970] ICJ Rep 3
Chow Hung Ching v The King (1948) 77 CLR 449
Dagi v Broken Hill Proprietary Company Limited (No 2) [1997] 1 VR 428
Danzig Railway Officials (Advisory Opinion) [1928] PCIJ (ser B) No 15
Exchange of Greek and Turkish Populations (Advisory Opinion) (1925) PCIJ, (ser B) No 10
Fang v Jiang Zemin (2006) 141 ILR 702
Finnish Ships Arbitration (Finland v United Kingdom) (1934)3 RIAA 1479
Holland v Lampen-Wolfe [2000] 1 WLR 1573
Jones v Ministry of the Interior of the Kingdom of Saudi Arabia and another; Mitchell and others v Al-Dali and others [2007] 1 AC 270
Jurisdictional Immunities of the State (Germany v Italy; Greece Intervening) (Judgment) (2012)ICJ No 143
Mabo v Queensland (No. 2) 175 CLR 1, 42.
Mavrommatis Palestine Concessions(Greece v United Kingdom) (Jurisdiction) [1924] PCIJ (ser A) No 2
Military and Paramilitary Activities in and Against Nicaragua(Nicaragua v United States) (Merits) [1986] ICJ Rep 14
Nottebohm (second phase) (Liechtenstein v Guatemala) [1955] ICJ Rep 4
Nulyarimma v Thompson (1999) 96 FCR 153
Oetjen v Central Leather 246 US 297 (1918)
Panevezys – Saldutiskis Railway(Estonia v Lithuania) (Judgment) [1939] PCIJ, (ser A/B), No 76
Potter v The Broken Hill Proprietary Company Ltd (1906) 3 CLR 479
Prosecutor v Blaskic (Trial Judgment) (International Criminal Tribunal for the former Yugoslavia, Trial Chamber I, Case No IT-95-14-PT, 18 July 1997)
R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte [2000] 1 AC 61
R v Bow Street Metropolitan Stipendiary Magistrate Ex parte Pinochet Ugarte (No 3)[2000] 1 AC 147
Sadiqi v Commonwealth [No 2] (2009) 181 FCR 1
Trendtex Trading Corporation v Central Bank of Nigeria [1977] QB 529
The Parlement Belge (1880) 5 PD 197
Underhill v Fernandez 168 US 250 (1897)
United States v Noriega, 746 F Supp 1506 (1990)
Legislation
Foreign States Immunities Act 1985 (Cth).
Treaties, Declarations Conventions
Draft Declaration on Rights and Duties of States, GA, 375 (IV), UN GAOR, 4th sess, , 270th plen mtg, UN Doc A/RES/375 (6 December 1949) http://www.refworld.org/docid/3b00f1ec54.html
Geneva Convention Relative to the Protection of Civilian Persons in Time of War(Fourth Geneva Convention), opened for signature on12 August 1949, 75 UNTS 287 (entered into force on 21 October 1950)
International Law Commission, Draft Articles on Diplomatic Protection with Commentaries, 58thsess, UN Doc. A/61/10 (2006)
Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002) Article 88.
SC Res 955, UN SCOR, 49th sess, 3453rd mtg, UN Doc S/RES/955 (8 November 1994) annex (‘Statute of the International Criminal Tribunal for Rwanda’)
SC Res 827, UN SCOR, 48th sess, 3217th mtg, UN Doc S/25704 (25 May 1993) annex (‘Statute of the International Tribunal for the Former Yugoslavia’)
Vienna Convention on the Law of Treaties, opened for signature on 23 Mary 1969, 1155 UNTS 331 (entered into force 27 January 1980)
Secondary Sources
‘Address to Parliament’, New York Times, 9 June 1982
Dugard, John, First report on diplomatic protection by Special Rapporteur, UN Doc. A/CN.4/506 (18 August 2000)
Moravcsik, Andrew, ‘Liberalism and International Relations Theory’ (Working Paper No. 92-6, Centre for International Affairs, Harvard University, 1992)
Grotius, Hugo, De Jure Praedae Commentarius (1604), cited in Daes, Erica-Irene, Report by Special Rapporteur The Individual’s Duties to the Community and the Limitations on Human Rights and Freedoms under Article 29 of the Universal Declaration of Human Rights: A Contribution to the Freedom of the Individual under International Law, UN Doc E/CN.4/Sub.2/432/Rev.2 (May 1983)
[1] David Bederman, International Law in Antiquity (Cambridge University Press, Cambridge, 2001); Arthur Nussbaum, A Concise History of the Law of Nations (Macmillan, New York, 3rd ed, 1961) 1, 2.
[2] Hugo Grotius, De Jure Belli ac Pacis Libris Tres (1625),cited in Stephen C Neff, ‘A Short History of International Law’, in Malcolm D Evans (eds), International Law (Oxford: Oxford University Press, 2006, 2nd ed) 35.
[3] Ibid.
[5] Anne-Marie Slaughter and William Burke-White, ‘The future of international law is domestic (or, the European way of law)’ (2006) 47(2) Harvard International Law Journal 327.
[6] Hugo Grotius, De Jure Belli ac Pacis Libris Tres (1625),cited in Stephen C Neff, ‘A Short History of International Law’, in Malcolm D Evans (eds), International Law (Oxford: Oxford University Press, 2006, 2nd ed) 35.
[7] Hugo Grotius, De Jure Praedae Commentarius (1604), cited in Erica-Irene Daes, Report by Special Rapporteur The Individual’s Duties to the Community and the Limitations on Human Rights and Freedoms under Article 29 of the Universal Declaration of Human Rights: A Contribution to the Freedom of the Individual under International Law, UN Doc E/CN.4/Sub.2/432/Rev.2 (May 1983), 44.
[8] United States v Noriega, 746 F Supp 1506, 1533 (1990).
[9] Danzig Railway Officials (Advisory Opinion) [1928] PCIJ (ser B) No 15, 17, 287.
[10] Lassa Oppenheim, International Law (Longmans and Co., London, 1905) [13]; Hersch Lauterpacht, International Law: Collected Papers, Volume II (Cambridge University Press, Cambridge, 1975) 489.
[11]Le Droit des gens; ou, Principes de la loi naturelle appliqués à la conduite et aux affaires des nations et des
[12] Mavrommatis Palestine Concessions (Greece v United Kingdom) (Jurisdiction) [1924] PCIJ (ser A) No 2, 12; Nottebohm (second phase) (Liechtenstein v Guatemala) [1955] ICJ Rep 4, 24.
[13] International Law Commission, Draft Articles on Diplomatic Protection , 58thsess, UN Doc. A/61/10, (2006), article 1.
[14] GA Res. A/Res/6135 (4 December 2006).
[15] Barcelona Traction, Light and Power Company Limited (Belgium v Spain) (Second Phase) [1970] ICJ Rep 3, 45.
[16] Ibid.
[17] John R Dugard, First report on diplomatic protection by Special Rapporteur, UN Doc. A/CN.4/506 (18 August 2000), [88] cited in Nicholas Hooge, Responsibility to Protect (R2P) As Duty to Protect? – Reassessing the Traditional Doctrine of Diplomatic Protection in Light of Modern Developments in International Law (Masters Thesis, The University of Toronto, 2010) 22.
[18]International Law Commission, Draft Articles on Diplomatic Protection with Commentaries, 58thsess, UN Doc. A/61/10 (2006), article 4.
[19] Nicholas Hooge, Responsibility to Protect (R2P) As Duty to Protect? – Reassessing the Traditional Doctrine of Diplomatic Protection in Light of Modern Developments in International Law (Masters Thesis, The University of Toronto, 2010) 21.
[20] Yishai Blank, ‘Localism in the New Global Legal Order’(2006) 47(1) Harvard International Law Journal 263, 265; Phillip R Trimble, ‘Globalization, International Institutions, and the Erosion of National Sovereignty and Democracy’ (1997) 95(6) Michigan Law Review 1944, 1946.
[21] Panevezys – Saldutiskis Railway(Estonia v Lithuania) (Judgment) [1939] PCIJ, (ser A/B), No 76, 308; Mavrommatis Palestine Concessions(Greece v United Kingdom) (Jurisdiction) [1924] PCIJ (ser A) No 2, 27.
[22] Gideon Boas, Public International Law Contemporary Principles and Perspectives (Edward Elgar Publishing Limited, United Kingdom, 2012) 17.
[23] Anne-Marie Slaughter, ‘International Law in a World of Liberal States’ (1995) 6 European Journal of International Law 503, 503.
[24] Hans Kelsen, General Theory of Law and State (Russell Russell, New York, 1961) 363-88.
[24] Gideon Boas, Public International Law Contemporary Principles and Perspectives (Edward Elgar Publishing Limited, United Kingdom, 2012) 17.
[25] Ibid 18.
[26] Arnold Wolfers, Discord and Collaboration: Essays on International Politics (John Hopkins Press, Baltimore, 1962) 19-24.
[27] Moravcsik, above n 4.
[28] Moravcsik above n 4, 6.
[29] Moravcsik above n 4, 9.
[30] Moravcsik above n 4, 10.
[31] Immanuel Kant, ‘Perpetual Peace: A Philosophical Sketch’ in Hans Reiss (eds), H.B. Nisbet (trans) Kant’s Political Writings (Cambridge University Press, Cambridge, 1970) 132-75.
[32] Lars-Erik Cederman, ‘Back to Kant: Reinterpreting the Democratic Peace as a Macrohistorical Learning Process’ (2001) 95 The American Political Science Review 15, 16.
[33] Michael W. Doyle, ‘Liberalism and World Politics’ (1986) 80(4) The American Political Science Review 1151, 1151, citing ‘Address to Parliament’, New York Times, 9 June 1982.
[34]Military and Paramilitary Activities in and Against Nicaragua(Nicaragua v United States) (Merits) [1986] ICJ Rep 14.
[35] Michael W. Doyle, ‘Liberalism and World Politics’ (1986) 80(4) The American Political Science Review 1151, 1152.
[36] Hans Kelsen, General Theory of Law and State (Russell Russell, New York, 1961) 363-88.
[37] Gideon Boas, Public International Law Contemporary Principles and Perspectives (Edward Elgar Publishing Limited, United Kingdom, 2012) 120.
[38] Antonio Cassese, International Law (Oxford University Press, Oxford, 2nd ed, 2005) 215; Hans Kelsen, Pure Theory of Law (University of California Press, Berkley, 1967) 332-4.
[39] Antonio Cassese, International Law (Oxford University Press, Oxford, 2nd ed, 2005) 214.
[40] Ian Brownlie, Principles of Public International Law (Oxford University Press, Oxford, 7th ed, 2008) 32.
[41] James Stellios, ‘International law and Municipal Law’ in Jean-Pierre Fonteyne, Anne McNaughton and James Stellios (eds), Harris – Cases and Materials on International Law: An Australian supplement (Lawbook Sydney, 2003) 19, 20.
[42] Draft Declaration on Rights and Duties of States, GA, 375 (IV), UN GAOR, 4th sess, , 270th plen mtg, UN Doc A/RES/375 (6 December 1949) Article 13 http://www.refworld.org/docid/3b00f1ec54.html; for treaties see Vienna Convention on the Law of Treaties, opened for signature on 23 Mary 1969, 1155 UNTS 331 (entered into force 27 January 1980) Article 2 which reiterates that a state may not excuse itself of compliance with treaty obligations by reference to domestic law.
[43] Exchange of Greek and Turkish Populations (Advisory Opinion) (1925) PCIJ, (ser B) No 10, 20; Finnish Ships Arbitration (Finland v United Kingdom) (1934)3 RIAA 1479, 1484.
[44] See Geneva Convention Relative to the Protection of Civilian Persons in Time of War(Fourth Geneva Convention), opened for signature on12 August 1949, 75 UNTS 287 (entered into force on 21 October 1950) Articles 49.1, 50.1, 129.1, and 146.1.
[45] SC Res 955, UN SCOR, 49th sess, 3453rd mtg, UN Doc S/RES/955 (8 November 1994) annex (‘Statute of the International Criminal Tribunal for Rwanda’) Article 28.
[46] SC Res 827, UN SCOR, 48th sess, 3217th mtg, UN Doc S/25704 (25 May 1993) annex (‘Statute of the International Tribunal for the Former Yugoslavia’) Article 29.
[47] Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002) Article 88.
[48] Antonio Cassese, International Law (Oxford University Press, Oxford, 2nd ed, 2005) 219.
[49] Ibid 219.
[50] Ibid 220.
[51] Ian Brownlie, Principles of Public International Law (Oxford University Press, Oxford, 7th ed, 2008) 41; Malcolm Shaw, International Law (Cambridge University Press, Cambridge, 2008, 6th ed) 140.
[52] Antonio Cassese, International Law (Oxford University Press, Oxford, 2nd ed, 2005) 220-1.
[53] Trendtex Trading Corporation v Central Bank of Nigeria [1977] QB 529, 553-4.
[54] Antonio Cassese, International Law (Oxford University Press, Oxford, 2nd ed, 2005) 221.
[55] Anthony Mason, ‘International Law as a Source of Domestic Law’ in Brian Opeskin and Donald Rothwell (eds), International Law and Australian Federalism (Melbourne University Press, Melbourne, 1997) 215; See also the contrasting views of J McHugh and J Kirby in Ahmed Ali Al-Kateb v Godwin 219 CLR 562, [63], [190].
[61] Jurisdictional Immunities of the State (Germany v Italy; Greece Intervening) (Judgment) (2012)ICJ No 143; Richard Garnett, ‘Foreign States in Australian Courts’ (2005) 29(3) Melbourne University Law Review 704, 704.
[62] Gideon Boas, Public International Law Contemporary Principles and Perspectives (Edward Elgar Publishing Limited, United Kingdom, 2012) 268.
[63] Holland v Lampen-Wolfe [2000] 1 WLR 1573, 1588.
[64] The Parlement Belge (1880) 5 PD 197, 214-5.
[65] R v Bow Street Metropolitan Stipendiary Magistrate Ex parte Pinochet Ugarte (No 3)[2000] 1 AC 147, 201.
[66] Foreign States Immunities Act 1985 (Cth).
[67] Lord McNair, International Law Opinions: Selected and Annotated (Cambridge University Press, Cambridge, 1956) 230; Prosecutor v Blaskic (Trial Judgment) (International Criminal Tribunal for the former Yugoslavia, Trial Chamber I, Case No IT-95-14-PT, 18 July 1997), [41]-[42]; Gideon Boas, Public International Law Contemporary Principles and Perspectives (Edward Elgar Publishing Limited, United Kingdom, 2012) 272-3.
[68] Trendtex Trading Corporation v Central Bank of Nigeria [1977] QB 529.
[69] Hazel Fox QC, The Law of State Immunity (Oxford University Press, Oxford, 2002) 22.
[70] Jones v Ministry of the Interior of the Kingdom of Saudi Arabia and another; Mitchell and others v Al-Dali and others [2007] 1 AC 270 (‘Jones’).
[71] Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium) (Judgment) [2002] ICJ Rep 3 (‘Arrest Warrant’).
[72] Jones v Ministry of the Interior of the Kingdom of Saudi Arabia and another; Mitchell and others v Al-Dali and others [2007] 1 AC 270, 290.
[73] (2006) 141 ILR 702, 706-7.
[74] R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte [2000] 1 AC 61, 106;A-G (UK) v Heinemann Publishers Australia Pty Ltd (1988) 165 CLR 30, 40-1; Sadiqi v Commonwealth [No 2] (2009) 181 FCR 1, 53; Rosalyn Higgins, Problems and Process: International Law and How We Use It (Clarendon Press, Oxford, 1994), 217. Antonio Cassese, International Law (Oxford University Press, Oxford, 2nd ed, 2005 219.
[75] Underhill v Fernandez 168 US 250 (1897), [252];Rosalyn Higgins, Problems and Process: International Law and How We Use It (Clarendon Press, Oxford, 1994), 217.
[76] Ian Brownlie, Principles of Public International Law (Oxford University Press, Oxford, 7th ed, 2008) 504; Fritz A Mann, Foreign Affairs in English Courts (Clarendon Press, United Kingdom, 1986) 164, 705; Matthew Alderton,‘The Act of State Doctrine: From Underhill to Habib’ (2011) 12 Melbourne Journal of International Law 1, 3, 17.
[77] (1988) 165 CLR 30, 40.
[78] 246 US 297 (1918).
[79] Ibid 41.
[80] Potter v The Broken Hill Proprietary Company Ltd (1906) 3 CLR 479.
[81] Richard Garnett, ‘Foreign States in Australian Courts’ (2005) 29 Melbourne University Law Review 704, 716; Fritz Mann Foreign Affairs in English Courts (Clarendon Press, United Kingdom, 1986) 181-2.
[82] [1997] 1 VR 428, 453.
[83] Ibid; Richard Garnett, ‘Foreign States in Australian Courts’ (2005) 29 Melbourne University Law Review 704, 720.
[84] Benedict Kingsbury, ‘Sovereignty and Inequality’ (1998) 9 European Journal of International Law 599, 599.
[85] Anne-Marie Slaughter and William Burke-White, ‘The future of international law is domestic (or, the European way of law)’ (2006) 47(2) Harvard International Law Journal 327; Moravcsik, above n 4.
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Written by: Arshad Salmaan Ali Written at: Queensland University of Technology – Law School Written for: Bridget Lewis Date written: September 2013
Several contributors to CSI-Newcastle have previously argued that popular culture and world politics form a continuum. Each is implicated in the practices of the other. Recent events have once again shown how popular culture and world politics are inextricably intertwined as Harry Potter and the geopolitical imaginations of diplomats have been mobilised in tandem.
Media outlets around the world have been covering what is being referred to as the ‘Voldemort’ controversy in Sino-Japanese relations.As reported in the New York Times:
Top diplomats from the two countries began invoking the fictional evil wizard after a visit on Dec. 26 by Prime Minister Shinzo Abe of Japanto the Yasukuni Shrine, which honours Japan’s war dead, including Class A war criminals from World War II.
According to the Reuters News Agency, Chinese ambassador to Britain, Liu Xiaoming, referred to the Yasukuni shrine in Tokyo as ‘a kind of horcrux’—a reference to an object in the Harry Potter-verse in which dark wizards hide a fragment of their soul in order to obtain immortality. In response, Keiichi Hayashi—Xiaoming’s Japanese counterpart—warned that, ‘China risks becoming Asia’s Voldemort’. As analysts of world politics, what can we make of this exchange?
My response is radically different to that put forward by Steve Saideman at the Duck of Minerva. It is not enough to merely analyse the empirical validity of the Voldemort metaphor as an analogy for Sino-Japanese relations. As noted linguist George Lakoff has argued, the power of metaphors comes from their capacity to enable the understanding and experiencing of one thing—which may be unfamiliar—in terms of another that may be more familiar. The primary function of a metaphor is therefore not the mimetic transposition of an entire set of qualities but rather to promote a particular understanding through what are identified as the most important sharedqualities. Metaphors may clarify—for example, by reducing a complex set of political behaviours to qualities associated with a well-known villain– but they also hide and conceal.
Thus, metaphors, in the terminology of Roland Bleiker, provide aesthetic readings of the world. This means that metaphors—like language, theories, concepts, narratives, and discourses— always involve a gap between how they represent reality and the specific properties of reality that we claim to have captured by using the metaphor itself. Moreover, they are performative: like language, metaphors do not merely reflect a pre-existing reality, they construct—and shape—what we take to be real.
I therefore respectfully disagree that our understanding of world politics can be enriched by determining how ‘accurately’ Voldemort—or the storyline of the Harry Potter series— matches onto the actions of China and Japan. Trying to map how popular culture reflects the dynamics of world politics through allegory provides no meaningful insight because it takes what world politics is and the dynamics of world politics as already determined. At best, it provides the opportunity for an interesting thought experiment. Rather, what the Voldemort controversy demonstrates is the world-making properties of popular culture. In other words, it enables us to see how select foreign-policy elites in China and Japan are using popular culture in attempts to shape the way that global audiences perceive and understand their ongoing dispute.
The question for me then becomes: what kind of politics does the turn to Voldemort enable in this case? In asking such a question, one may find that the politics here can found as much in the choice to turn to Harry Potter as a source of lingua franca as it does in the mutual invoking of ‘He Who Must Not Be Named’.
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Dr Kyle Grayson is a Senior Lecturer in International Politics at Newcastle University, UK. Read more from Kyle, and others, on CSI-Newcastle.
Over the past two decades, India has experienced a phenomenal rise in international politics related to its economic growth, its improved relations with the United States paired with its engagement in forums like BRICS, and its growing international recognition as a responsible actor and an emerging power. In its own regional backyard, however, India has been far less successful. Apart from its ongoing tensions with Pakistan, its problems in dealing with smaller neighbouring states like Nepal, Bangladesh and Sri Lanka are almost a textbook example of the difficulties of converting material power capabilities into actual influence.[1]
The case that best illuminates this dilemma is that of India-Sri Lanka relations. The geographical proximity to the island state, and especially the cultural proximity between Indian and Sri Lankan Tamils, has traditionally made India the most influential external power in Sri Lankan politics. However, the numerous inconsistencies in India’s approach have seriously undermined its influence on Sri Lanka. Those inconsistencies began in the 1980s, when India supported Tamil rebel groups from Sri Lanka to put pressure on the Sri Lankan government, later imposed a settlement in the civil war between the government and the Liberation Tigers of Tamil Eelam (LTTE), and ultimately got entangled itself in the armed conflict with its peacekeeping troops. The dismal failure of its peacekeeping mission and the assassination of former Prime Minister Rajiv Gandhi in an LTTE suicide attack induced India to adopt a hands-off policy towards the war-torn island state in the 1990s and 2000s. After a period of relative calm that followed a mediated ceasefire in 2003, the armed conflict in Sri Lanka escalated again in 2006.[2] The government of President Mahinda Rajapaksa started a massive military offensive that ultimately led to the defeat and total elimination of the LTTE in May 2009. The final phase of the war was marked by massive human rights violations and war crimes, with government forces firing on so-called ‘no-fire zones’ in which thousands of Tamil civilians had sought shelter.[3] During this final phase of the war, particularly from 2007 onwards, the Indian government tacitly supported Rajapaksa’s military effort (albeit without supplying offensive weapons or intervening directly),[4] and reportedly even ‘played a key role in warding off international pressure on Sri Lanka’.[5] This support for the government was an attempt on the part of New Delhi to not lose its leverage in Sri Lanka against the backdrop of China’s growing influence. At the same time, India put ‘modest pressure on the Sri Lankan government to minimise the humanitarian cost of their offensive’.[6] After the end of the war, New Delhi went so far as to support the Sri Lankan government in a special session at the United Nations Human Rights Council (UNHRC) on 28 May 2009, voting against a motion that called for an investigation of war crimes. Since 2009, the Indian government has tried to further improve relations with Colombo through the provision of financial assistance for infrastructure projects and humanitarian assistance for the displaced population.
Shifts in India’s Approach
At the same time, domestic pressure from the state of Tamil Nadu has forced the Indian government to join international calls for an investigation of human rights violations and war crimes. In a significant departure from its previous approach, in March 2012 and March 2013, New Delhi voted in favour of U.S.-sponsored UNHRC resolutions that asked the Sri Lankan government to fulfil its commitments and take actions to ensure justice, accountability and reconciliation (2012) and to carry out an independent investigation into alleged human rights law and humanitarian law violations (2013), respectively. This was a substantial shift in New Delhi’s approach, which had always been opposed to country-specific resolutions and to interference with the internal affairs of third countries.
New Delhi also put substantial pressure on the Sri Lankan government to induce it to hold provincial council elections in the north of the island in a first and long-delayed step towards the devolution of power and the implementation of the 13th Amendment to the Sri Lankan Constitution, which provides for the establishment of a system of provincial councils.[7] The elections were ultimately held on 21 September 2013, leading to an overwhelming victory for the Tamil National Alliance. It still remains to be seen, however, to what extent the increasingly authoritarian[8] and staunchly centralistic Sri Lankan government will be willing to allow the provincial government to exercise its powers.
The CHOGM
The most recent development in India-Sri Lanka relations concerned the 23rd Commonwealth Heads of Government Meeting (CHOGM), which was held in Colombo in November 2013. The Sri Lankan government had hoped to use this event to regain international visibility and legitimacy after the UNHRC votes and the repeated debates on its human rights record. However, in the lead up of the summit, the Canadian and the Mauritian prime ministers announced they would boycott the CHOGM due to the Sri Lankan government’s human rights violations. After huge domestic debates, Indian Prime Minister Manmohan Singh ultimately decided not to participate in the CHOGM, downgrading representation to External Affairs Minister Salman Khurshid. However, the fact that Singh refused to call his absence a boycott indicates the uneasiness of the central government with this outcome.
The heated political debate that preceded Manmohan Singh’s decision illustrates very well some of the dynamics of foreign-policy making in India and their implications for regional affairs. The two main political parties from the state of Tamil Nadu, the Dravida Munnetra Kazhagam (DMK) and the All India Anna Dravida Munnetra Kazhagam (AIADMK), which have been alternating in power at the state government and have served as important coalition partners at the centre over the past decades, have played a major role in shaping India’s recent Sri Lanka policy. Their limited impact on the central government in 2009, during the military offensive that cost the lives of so many Sri Lankan Tamils, reveals the extent of their opportunism and the coalition compulsions they are subjected to themselves at the state level. In recent years, however, Tamil parties’ pressures on the central government – and their actual room to manoeuvre – have grown. India’s UNHRC votes in 2012 and 2013 can be traced back to the massive protests that took place in Tamil Nadu and to the DMK’s (ultimately substantiated) threat of withdrawal from the UPA coalition.
Ahead of the CHOGM, both main Tamil parties called for Manmohan Singh to boycott the summit[9] and large protests were staged in the south Indian state.[10] Several ministers in Singh’s cabinet who hail from Tamil Nadu – among them Finance Minister P. Chidambaram – were opposed to the prime minister’s participation in the CHOGM.[11] A broad coalition of actors from Tamil Nadu therefore forced the weakened Manmohan Singh to boycott the meeting. On the contrary, the central government itself, and especially the foreign policy establishment, would have preferred the prime minister to participate. The need to keep some leverage on the Rajapaksa regime and to not alienate Sri Lanka and ‘lose’ it to the Chinese were among the main arguments in this debate. Moreover, some argued that only by cultivating the relationship with the Sri Lankan government would India be able to induce it to proceed with the devolution of powers to the Tamil minority.
Conclusion
On normative grounds, India’s attitude since the 2012 UNHRC vote is certainly to be welcomed. The problem is that this shift towards a support for international initiatives that seek to enforce human rights law and humanitarian law has mainly been driven by political calculations at the state-centre nexus. The principles of non-intervention and sovereignty continue to play a major role in India’s foreign policy approach – also due to concerns about external interference with India’s own human rights violations in Kashmir and the Northeast. The main driving force in India’s shift has therefore not been a change in normative attitudes but the growing role of regional parties in decision-making. This is part of a broader trend in India’s foreign policy making that has had its main repercussions on New Delhi’s policies vis-à-vis neighbouring South Asian countries. In 2011, for example, the chief minister of West Bengal undermined a potentially ground-breaking agreement with Bangladesh and, thereby, the opportunity of achieving better relations with one of India’s most difficult neighbours. This has further limited India’s ability to reach its goals in its troublesome neighbourhood – its huge power capabilities notwithstanding.
As for the Sri Lankan case, Manmohan Singh’s absence at the CHOGM has certainly had a negative impact on bilateral relations and on India’s ability to influence the devolution of powers for Sri Lankan Tamils. And, of course, it would have been wiser for Manmohan Singh to travel to Sri Lanka and send a strong signal by visiting Jaffna, as the British prime minister did. However, the negative implications of the CHOGM episode should not be exaggerated and New Delhi should pay attention not to give in to the balancing threats voiced by the Rajapaksa regime.[12] Shortly after the CHOGM episode, bilateral naval talks were held between the two countries, revealing that India remains an essential partner for Colombo.[13] As for the Chinese influence on Sri Lanka, India’s (limited) support for Rajapaksa’s war efforts was certainly not sufficient to keep the Chinese out of the island – and support for Sri Lanka in the UNHRC or Manmohan Singh’s participation in the CHOGM would certainly not have induced the Sri Lankan government to expel the Chinese from their huge port project at Hambantota. New Delhi should also pay attention not to associate itself too closely to the Rajapaksa regime – not just because of its increasingly authoritarian character, but also, quite pragmatically, because of the reported ‘growing restiveness among Sinhalese at government abuses, corruption and economic mismanagement’ by the Rajapaksa government.[14]
What India needs in order to keep its leverage on Sri Lanka and to increase its influence in its South Asian backyard is a coherent and credible policy of regional leadership. This would imply developing a ‘vision’ for the region, making disproportionate concessions to smaller states for the achievement of common goals, and taking a clear and consistent normative stand on issues like human rights violations and war crimes. It would also imply a better coordination between the centre and the states to develop a consistent foreign policy line. All this will hardly be possible ahead of the 2014 general elections. In the case of a BJP victory, one can only hope that Narendra Modi’s plans about a future broader role of states in foreign policy making were just one of his one-off remarks – or that some serious work on the coordination between centre and states in foreign policy would be done. And if a coalition of regional parties emerges as the winner of the 2014 elections, one has to hope for checks and balances dictated by coalition dynamics.
