The Hindu Editorial Analysis

Editorial 1: The crisis in international law

Introduction:

Professor Hilary Charlesworth, a judge at the International Court of Justice, described international law as “a discipline of crisis”. Not much has changed since then. Just when the world was recovering from the pain induced by COVID-19, Russia’s invasion of Ukraine last year once again highlighted the ‘crisis’ dimension of international law.

About International Law:

International law is the set of rules, norms, and standards generally recognized as binding between states. It establishes normative guidelines and a common conceptual framework for states across a broad range of domains, including war, diplomacy, economic relations, and human rights.
One of the underlying bases of the post-world war international legal order has been to explicitly outlaw war through the adoption of the United Nations Charter.

Charter of the United Nations (UN) is the foundational treaty of the UN, an intergovernmental organisation. It establishes the purposes, governing structure, and overall framework of the UN system, including its six principal organs: the Secretariat, the General Assembly, the Security Council, the Economic and Social Council, the International Court of Justice, and the Trusteeship Council.
The UN Charter mandates the UN and its member states to maintain international peace and security, uphold international law, achieve "higher standards of living" for their citizens, address "economic, social, health, and related problems", and promote "universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion".

As a charter and constituent treaty, its rules and obligations are binding on all members and supersede those of other treaties.

While the U.N. Charter has succeeded in ensuring that the world does not fight another world war, it has failed in stopping inter-state wars. This year is going to further test the limits of international law, not just because of the ongoing Russia- Ukraine war, but also due to several other factors that will play out in the next year and beyond.

The geo-economic challenge

The world post-World War II was a bipolar one with great power competition between a ‘capitalist’ America and a ‘communist’ Soviet Union. The end of the Cold War led to the disintegration of the Soviet Union and the collapse of communism. This ‘unipolar’ moment gave a leg-up to multilateralism and led to three decades of what C. Raja Mohan calls “relative harmony” among the major powers.
However, even during this period, the North Atlantic Treaty Organization (NATO) bombed Kosovo and the Western forces invaded Iraq in complete disregard to the U.N. Charter. As Ralph Wilde argues, these U.S.-led military actions did not attract as vociferous an international response as the Russian invasion of Ukraine did.
The ‘relative harmony’ phase saw the spread of democracy, greater acceptance of universal human rights, and a global consensus for maintaining international rule of law with multilateral institutions and independent international courts acting as referees.

Securitisation of international law

However, these universal values are under threat as we have entered a multipolar world involving the securitisation of international law. The major powers are at each other’s throats.
Today international law faces a new ground reality — the dwindling of the ‘liberal’ and ‘capitalist’ West and the rise of an ‘autocratic’ China and ‘expansionist’ Russia. The meteoric rise of China means that Beijing is now flexing its muscles, including by weaponising international law. China views law as an instrument in the service of the state. This is diametrically opposed to the rule of law theory in liberal democracies where the law’s function is to constrain unbridled state power.
The Westphalian notion of international law that ostensibly championed international rule of law and territorial integrity of states is now pitted against Chinese and Russian versions that believe in gaming international law for national interests. Under the Chinese and Russian versions, the territorial integrity of nations and the sovereignty of states doesn’t quite matter.
For instance, the Russian approach towards international law believes that the basis of international law is not universal but cultural and civilisational distinctness. The Russian vision of international law, in complete violation of the UN Charter, distinguishes between countries that are truly sovereign and countries that possess nominal or limited sovereignty, such as Ukraine. As this clash between different visions of international law sharpens in 2023, it will push international law into a deeper crisis.

International economic lawlessness

An important fallout of the rise of the geo-economic order is the concomitant spread of economic protectionism. The rise of China worries the U.S., which is desperate to ensure its continued hegemony. Washington is fast backtracking on the neoliberal consensus of interdependence and non-discrimination in international economic law that it laboriously built in the last three decades.
U.S. has vehemently rejected the recent World Trade Organization (WTO) panel reports that held the U.S.’s protectionist industrial policies masquerading as national security objectives illegal.
The U.S. has also strangled the WTO’s effective dispute settlement mechanism by relentlessly blocking the appointment of the Appellate Body members. All these challenges are only going to become ominous in 2023 leading to greater lawlessness in the world economy.

The populist challenge

Although leaders such as Donald Trump and Jair Bolsonaro have demitted office, international law in 2023 will continue to face challenges from populist and ethno-nationalist regimes in several countries such as Hungary, Turkey, Poland, and Israel.
Populists attack the legitimacy of international law and refer to it as foreign law, which is inimical to their national interests. International law, in the populist scheme of things, is often reduced to a mere law of coordination. This law of coordination is not aimed at international cooperation to develop and espouse common global values, but only to ensure a minimal relationship between countries with common ideational moorings.

Different views of international law:

Scholars characterise the crisis in international law in different ways. B.S. Chimni believes that a crisis in international law will exist if the phenomenon of imperialism is not addressed.
On the other hand, the late James Crawford argued that crises occur in international law because of “the absence of any constitutional order, other than constitutional order of States”. This, arguably, allows nationalism to trump international law.
Still others such as Jan Klabbers contend that the crisis of international law today is the crisis of liberal democracy.

Conclusion:

Regardless of the characterisation, the fact remains that the liberal international legal order is under attack from many sides. Will 2023 see the international community fight back against the relentless assaults posed by securitisation, populism, and protectionism on core universal values that international law enshrines?

Editorial 2: Political parties are not like companies

Introduction:

A popular trope among political commentators, especially in the aftermath of important elections, is that political parties are like corporations and their leaders like CEOs. The analogy is made to press home the point that just as CEOs are held accountable for a bad quarter, so should the leaders of political parties for poor election results.
This analogy is misleading and leads to distorted ideas of how political parties function. This is especially problematic in India because unlike, say, in the U.S., there is little space for the politics of negotiation and compromise outside of political parties. Therefore, the key to understanding Indian politics is understanding how political parties function.

Differences

A key difference between a political party and a company is that parties have claimants and volunteers while a company has employees. This difference has an impact on all aspects of decision-making and operations of the two entities. The purpose of a political party is to capture state power in service of some stated social agenda.
To legitimise this aspiration, the party itself must be seen to be as a microcosm of society, with its organisation necessarily populated by individuals in a volunteer capacity as opposed to paid employees.
Thus, while all parties have some paid employees, positions which enable the people holding them to exercise political judgement and have executive authority, such as area presidents and in-charges, are honorary ones. Despite this, there are multiple claimants for every position commensurate with associated prestige and power.

On the other hand, most private companies operate in a narrowly defined and apolitical space selling goods and services. Politics — in the sense which conveys value judgement about the trajectory of society itself and its consequent trade-offs — is not part of a corporation’s role.
Even if there is an element of political judgement in the functioning of the corporation, it is exercised at the top as opposed to individual employees having to exercise political judgement at their level. Thus, a corporation is entirely staffed by paid employees performing well-defined, non-overlapping roles with the reasonable expectation that their professional skills will suffice for their work.

With the above context, it is evident that the analogy of a political party as a company makes little sense. A political party must manage trade-offs between multiple conflicting interests, generate consensus, and then mobilise the electorate around its chosen narrative. This is a more nebulous space than one in which pre-defined goods and services are exchanged for profit.
Moreover, multiple claimants for every position inevitably queer the pitch for the party’s operations. Given the public nature of political parties, it is neither advisable nor possible to exclude claimants from participation in the organisation’s functioning though the influence of dissidents is often curtailed.
Since political parties are in the business of opinion-making, internal dissonance and conflict of interest have a direct bearing on a party’s ability to perform, especially in a competitive electoral landscape.
Examples include contradictory statements made by party functionaries during important campaigns, sabotage and leaks, rebel candidates, or sheer inactivity. When such internal factionalism comes out in the public, it has a cascading effect on all aspects of the party’s operations from outreach to fundraising.

It may be suggested at this point that a political party could sort out these issues through ‘discipline’. However, unlike employees, political functionaries cannot be ‘fired’, especially since many may not have a post to begin with.
This is because political functionaries don’t just perform a role but also serve as representatives of some or other interests. The ability to enforce discipline in a political party is thus directly related to the ability of the leadership to consolidate power at the top.
This points to a fundamental difference between a political party and a corporation: in a political party, power is more informal and dynamic than in a corporation. Hence, corporate notions of hierarchy, compartmentalisation, professionalisation, discipline and accountability do not translate well within a political setting.
In a corporation, a promoter can outsource management to a ‘professional’ without worrying about losing control as long as s/he controls majority shares. However, in a political party, power once delegated can be lost if the representative interests realign.

Recent trends

Given these vagaries in the functioning of political parties, there are indeed discernible trends towards ‘corporatisation’ and ‘professionalisation’ of parties. Political parties are starting to prune political judgement from various positions, such as in the case of spokespersons where their articulation of the party stand is completely divorced from actual decision-making authority.
Similarly, the anti-defection bill divests political discretion from elected representatives by constraining them to the whip and vesting all decision-making in the party leadership.
Chief Ministers using the bureaucracy to bypass Ministers and the use of political consultants to bypass the party organisation are other examples of professionalisation of political parties.
However, instead of improving efficiency, this has resulted in further degradation of overall public purpose. Pruning political discretion from positions has made individuals in those positions expendable like employees and less capable of negotiating the party’s internal power structures.
The ‘professionalisation’ of politics has also facilitated rampant party hopping by political functionaries in the manner of employees flitting across companies. This reduces the overall credibility of the political space.

Conclusion:

Ultimately, politics is a value-driven enterprise. We should seek competence and accountability from political functionaries, but the way forward is not through the corporatisation of our parties.

07 Jan 2023 : The Hindu Editorial Analysis