Humanitarian Shifts in the International Legal System in a post Pandemic World : Sinking International Citizen(ship) or Reclaiming Domestic Self-Determination?

Ashish Gosain

The crisis, the World faces today in the form of the Pandemic  reflects the challenges presented by a  hegemonic, uni-polar world order, failure of neoliberal institutions and the rising voices from exploited the global south, albeit of an unprecedented dimension and scale, against the externally imposed power structures, that shackle development and present issues of credibility of International Law in the domestic constituency of States. All these trends have long been in the making, yet the crisis has reached a breaking point today. This has become possible on account of the dissatisfaction of the world’s population over the problems, arising from the untrammeled march of capitalism, ranging from anthropogenic climate change; diseases and pandemics, environmental degradation and the externalities of excessive financialization of our economies; post the financial crisis of 2008. The problems of long-term structural unemployment, exploitation of labour, failure of Infrastructure development have rendered foul, the fake smell of development that capitalism projects to justify itself. 

In a sense, this  crisis has once again, brought us to the need for considering the “bottom up perspective” over the “Top-Bottom” perspectives imposed historically to achieve a win-win that not only recognizes the different levels of development of States, but more importantly reclaims their developmental re-calibration of priorities, based on a “proximal assessment” of the scale and dimension of the crisis that confronts them. Truly, there needs to be a multi-level, multidimensional and multidisciplinary engagement with the developmental entanglements, namely Trade and Labour, Trade and Environment etc. and the structural factors sustaining and underlying them.  The crisis in institutions in articulating and responding to domestic interest forms a case study in failed priorities. This is a crucial inflexion point in human history. The way forward can be through achieving a status quo, which is more responsive to human needs- beyond the material. For this, one needs to examine the evidence base, cited in support of neoliberalism on many fronts and ask questions on what challenges need to be addressed urgently- be it the future of work and the structural corollary of equality at work, technology and it’s proper role within society. The role of technology brings into sharp focus on the use of resources within society, namely the interaction of Capital and Labour. But exactly how International Law can play a positive agenda setting role for the new deal. The lessons we can learn from the past are indeed valuable in this context. As Thatcherism’s complacent, yet condescending reliance on neoliberalism makes way, a crucial question is what readjustments does International Law imminently implement to address the challenges posed by a World of extreme economic adversity, extreme poverty and displacement, managing the Future of work in the era of demands, the CoVID Pandemic makes on us ? Clearly, multilateralism that exists as a patchwork of institutions, where the Big Powers override consent for every rule making process that does not privilege them has for exceptionally long been left in the Black Hole of geopolitics and needs them to accept responsibility for not addressing long term-structural inequalities within Society and the fallacy of Development associated with it. According to Global Extreme Poverty – Our World in Data., the projection is that in 2030, more than half a Billion people worldwide will live in extreme poverty. Of course, this has not yet taken into account the true impact of the pandemic, as it unfolds. 

The first major change this has spawned is the humanitarian crisis of migration – be it refugees or internally displaced persons. So much so that this has brought a new pressure on the basis of establishing an Individual’s right to self-determination, namely citizenship. Underlying this, is the divergence between the notion of “pactum subjectionis” (Subject) of International Law and the social contract of Domestic Constitutions. This has forced the hands of leaders world over to acknowledge that the problem of International Law, conceived as a lack of subjection, in the case of corporates in Big ticket International Infrastructure, development projects and accountability in enforcing international commercial contracts, through institutional innovation in contractual principles. This has largely been, imposed by laissez faire, which is affecting developing nations at a time, when it is needed most causing huge cost overruns, undercutting into developmental expenditure. On the other hand, is the lack of ascribing a consequence of enforcing universally accepted principles at the individual level like precautionary principle within our Legal systems. Further, issues arise in relation to International citizenship (once touted as the Poster boy of Global Citizenship), as the cultural culmination of the “melting pot”, the global village was projected to be.  These issues require deep analysis into the sites of contestation, the current International Order, be it economic, social or cultural has imposed on the individual, without addressing issues of discrimination in employment, cultural and social existence etc. The Black Lives matter” movement is a culmination of that unease within society coming out in the Developed West. 

In a Wall Street Journal article, Michelle Hackmann argues that the World needs to understand migration of technically educated professionals and individuals in distress from the standpoint of human rights. The moves towards excessive protectionism manifest in this domain in the advanced countries and need to protect of people working in countries on a humanitarian view of the rights of various categories, based on their migration status, individual circumstance and the leeways that Refugee Law provides in this context, with a view of the carrying capacity of the destination countries. This is to ensure the continuing social efficacy, as opposed to efficiency (narrowly embodied as economic development), of policies central to human existence i.e. environmental and Labour regulation, and more importantly jus cogens as the bedrock principle, underlying a human-centred view of Policy. 

This social renegotiation of policy space in the era of hyper-globalisation and control over use of natural resources is a crucial first step in ensuring more control in managing the externalities from the neoliberal, capitalist system focused myopically on profits and investment flows. The decade before has witnessed the resurgence of triumphalism over investment flows, post the collapse of capital flows through relaxation of capital controls in Latin American countries, structural inequalities arising from inability of erstwhile colonies in leveraging development to fulfill human needs- be it shelter, food , medicine etc. in this crucial time. In View of Human Rights and Global Pharma Converge, the author, Hon’ble Michael Kirby AC CMG emphasizes the need for multilateral institutions to enable the domestic policy space, in crucial areas of Pharmaceuticals to ensure affordable access to life saving medicines. Further, the crucial issue is of preserving environment under the Sustainable Development paradigm. Here, the democratization principle is another sound principle of governing the relation of Man and the environment within the boundary of the State. According to an Indian Express article, Draft EIA Notification is an attempt to weaken regulation, silence affected communities, the Draft Environmental Impact Assessment Guidelines coming in the pandemic has represented a distorted consultative process in governing a scientific process  of crucial Importance in the name of attracting Investment and business facilitation. In an article, India’s safety crisis_ Industrial accidents during Covid-19 , the increasing incidents at the Chemical Plants in South India and a fire at Jawaharlal Nehru Port Trust have sparked concern in prioritizing safety of workers, as they return to work in the manufacturing plants, perhaps as a reminder to the incidents post Fukushima regarding safety audits. However, the race to the bottom by countries to attract Investment is perhaps reflective of their lack of prioritizing key regulatory concerns. The time to recalibrate the contours of human existence has arrived and the myth of global citizenship needs to be grounded in sovereignty over use of Natural resources, human rights and prioritizing of Public goods for the individual, namely Health, environment and more rights for the workforce, as they return amidst the vulnerabilities and compulsions of the World economic system to work. This is the pathway of enabling socially fulfilling development under the New Deal that the Pandemic, presents an opportunity for Mankind to offer to none but itself.

(The Author is a PhD Scholar at the Centre for Studies in Science Policy, Jawaharlal Nehru University. The views in this article are personal).

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