the-art-of-legalpolitik-and-assessing-chinas-prowess

Given the viral onslaught of COVID-19 pandemic gripping the globe, questions have been raised on China’s responsibility for wreaking the havoc.

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  • Lawyers, activists, and politicians  have started to file cases for compensation against China in the US courts.
  • Even, a resolution has been moved in the US Senate that calls for investigations into the origin of the virus, by the international community.
    • The resolution seeks to quantify the damage inflicted on all of the nations, going further, it seeks to bring out a mechanism of reparations too.

Why is China being held culpable ?

  • Principles of State responsibility and obligation under the 2005 International Health Regulations (IHR).
    • As per the regulations, China is alleged to have failed in its responsibility to notify the world of the outbreak of the pandemic.

 

Case for LegalPolitik

Case against LegalPolitik

As a principle of Geopolitics

  1. It is an important principle that has the ability to put real pressure on heavy weight nations and their Geopolitical ambitions.
    1. As the public opinion too is an important factor in shaping diplomatic relations, Geopolitics has to accommodate Legalpolitik and Moralpolitik too.
 

Language of International discourse

  1. The international discourse on any conflict is framed in legal terms, be it between a state and its citizens or intergovernmental.
    1. It can be gauged from the fact that how India has been counter questioned in recent times on several platforms for its Internal policies such as CAA, 370.
 

Historical Underpinnings

  1. From the annals of history too, the hegemony is seen to be rooted in legal invincibility apart from Economic and military power.
    1. For e.g. How Soviet Union paid heavily for dismissing the western legal arguments during the Cold War.
    2. Also, how Britain and USA leveraged legalpolitik for their strategic hegemony.

Principle of Sovereignty

  1. On the face of it, the legal claims to counter China can be dismissed at the altar of the Principle of  Sovereignty of State.
    1. Also there is no set precedent to bring to law the States for the spread of infectious disease that goes beyond their borders.
    2. In addition to it, there is no provision for reparations under the IHR.
 

Might is Right

  1. Despite knowing the fact that had China acknowledged the spread of the Virus responsibly, the worldwide scenario could have been different, most of the governments feel that pursuit of claims against China is nothing but a futile exercise.
    1. Their belief rests on recent instances of China’s prowess, like how China made the WHO toe its line and prevented the terming of COVID-19 as the Chinese Virus.
    2. It happened in the past too, when the International Court of Justice ruled in favor of the Philippines vis-a-vis China’s territorial Claims over the South China Sea.
    3. China refuted the verdict on the ground that ICJ has no jurisdiction in this matter.
    4. Lastly, despite a legal win, the Philippines had to seek political mediation with China.
 

Institutional Loopholes

  1. On the UNSC front too, it can authorise economic or military sanctions against a State, subject to a consensus among permanent members.
    1. However, in a pragmatic sense UNSC can’t act against one of its Permanent members.
    2. Also, China has blocked all suggestions for a discussion on the corona crisis in the UNSC.
 

Global Affairs: A different Ball game 

  1. In domestic politics, where Law triumphs power on account of State as the highest authority can force citizens to abide by Law.
    1. Unlike domestic politics, there doesn’t exist a single actor that can claim to be the highest authority and has the legitimacy for using instruments of force, in the realm of International politics.
    2. All in all, the Power triumphs law when it comes to International politics.

Lessons for India

  1. India can learn from China vis-a-vis making International law the keystone of India’s diplomacy on multilateral platforms.
    1. For e.g. In a bid to mount a massive propaganda campaign, China has held the US responsible for covering up the origin of the coronavirus, to the extent of filing suits against the US in Wuhan Intermediate People’s Court.
    2. So, China has started to build its own international narrative, rather than defending itself on the backfoot. 
  1. India can also take a cue from China to invest in Geo-legal machinery.
    1.  China has learnt the art from the US and Britain to leverage international law to its own advantage of achieving larger global goals
    2. It has a trained machinery of international lawyers who argue from the first principles of jurisprudence, carefully plant the Chinese political conceptions like the Belt and Road into multilateral agreements and push for new international legal norms.

To conclude, as India is struggling hard to counter China vis-a-vis NSG, UNSC Membership and other issues, legalpolitik can come handy in its diplomatic outreach.

 

Realpolitik

  • Realpolitik is a word that owes its origin to Germany where Real is not used as in English language.
    • Real connotes things, hence the term reduces itself to Politics of adaptation to things the way there are.
  • It can be defined as a  system of politics or principles which is based on practical considerations of Power rather than ethical or ideological considerations.
    • In the diplomatic realm, it is often considered as a relentless, practical pursuit of the National interest.
  • For e.g. Ping-pong diplomacy, in the 1970s  that led to the US President Nixon’s visit to China followed by rapprochement policy of the USA, is seen as a shining example of Realpolitik.

Legalpolitik

  • Although it is not a standard term in International politics, it can be loosely defined as an extension of Realpoitik encompassing legalism or a Realpolik that is based on sound Legal principles.

International Health Regulation(IHR) 2005

About

  • IHR (2005), is coordinated by the WHO.
  • It is a binding international legal agreement involving 196 countries across the globe, including all the Member States of the WHO.

Need of IHR

  • Given the ever increasing interconnectedness of the world with respect to travel and trade, the disease transmission risks are more than ever. 

Objective

  • Its primary objective is to keep the world informed about public health risks and events. 
  • It mandates all countries to report events of international public health importance
  • It acts as a reference for countries to adopt measures to prevent and control global health threats at the same time keep open the international travel and trade.

IHR Prescription for Countries

IHR (2005) requires all countries to build capacity in order to 

Detect

It should be made sure that Surveillance systems and laboratories can detect potential threats.

Assess

Work in tandem with other countries to make decisions in public health emergencies.

Report

Report specific diseases, as well as any potential international public health emergency.

Respond

The countries must Respond to public health events

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Image Source: The Indian Express