SINO-CENTRICISM/MIDDLE KINGDOM
In the chat, I saw some discussion about Sino-centricism, I am not sure what Kevin wanted to say when he wrote "So It is fascinating to know that in this context japanese divergence empowered them to be in the club of civilized states while Sino-centrism of middle kingdom were widely acknowledged and respected by west."
In the context of this course on International Law and Organizations, we are primarily engaged with what is called as the Westphalian system of modern sovereign states. China in international law, like other non-western states, is seen as a recipient rather than a state which has taken an active part in the development of IL (although this is severely contested). Politically speaking China was engaged with the west, but it was in many ways insular and was forced to become open after the Opium wars in the middle of the 19th century. This saw China being forced to give concessions to the Western powers like Hong Kong, Macau, Qingdao etc. and China recalls this forcible tryst with the West as a century of humiliation. For students who want to start reading about China and I Law, you can start with the book "People's China and International Law, Volume 1: A Documentary Study" where Chapter 1 provides a brief history too.
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LOTUS CASE AND A.I
SR says "I never spoke about having an upper hand, nor did I talk about the imbalance of power in the anarchic international system. I spoke about how the human understanding of A.I and technological capabilities grows af a slower pace than the actual advancement of said technology. Therefore, my question revolved around how the lack of any previous court proceedings on such matter (as this technology would have never been used or been centre to judicial proceedings) would mean that the argument of tacit consent can be used by anyone. This idea was in reference to the Lotus Case of 1926."
A nice summary of Lotus Case can be read here. As I said in the class in new issue areas, I Law might be a step behind, so of course the regulation of a new issue might start at the domestic level. That said, principles developed in various bodies of IL can serve as a basis to think and even regulate new developments in our societies. I think that you can consider looking at the Advisory Opinion given by the International Court of Justice on "Legality of the Threat or Use of Nuclear Weapons" wherein the court had to deal with what appeared to be a speculative matter suggests that we can use existing body of IL to engage with emerging areas of human (and non-human) activity. This judgment was also critiqued by some scholars as an instance where the court found non liquet ( The term non liquet originated in Roman law and means “it is not clear.” It refers to a situation in which a competent court or tribunal fails to decide the merits of an admissible case for whatever reason, be it the absence of suitable law, the vagueness or ambiguity of rules, inconsistencies in law, or the injustice of the legal consequences. )
As we progress in the course, while addressing the topic of municipal law and IL, we will try to address how domestic law plays a central role in IL. When we discuss the role of international adjudicatory bodies, we will look more closely at the ICJ.
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ORIGINS OF CORONA VIRUS
SS - "So, connecting SR's AI question in the case of corona, i was wondering, if it gets proven that the pandemic is due to a lab leak from Wuhan, will the international system punish China for their action (which is a 'Lab Accident') or will they punish China for the results of their action (The start of a global pandemic) ?"
"There are several provisons revolving around negligence, be it in municipal courts or the ICJ. Where the international community is finding it difficult to make a case is at the first step of proving the effective origin of the virus and being able to unanimously confirm all the facts behind the inception. Every step after this is already established in place, hence the lack of any progression in this case."
"In my opinion, with the prevalent view of Wuhan leak being a rational and conscious leak, knowing the probable effect of the virus, I believe one interpretation could be of voluntary manslaughter and not negligence."
SS "cant we say then that most nations have played a part in the spread pf covid within their own people, due to negligence (Brazil, US). I mean, countries like New Zealand were not victims of manslaughter because their country listened and took actions to control the spread effectively, and even china was able to put a stop to the spread. so again, for covid being a global pandemic, is china the only one at fault?"
"One of the docs is regarding International Liability for Injurious Consequences Arising out of Acts not Prohibited by International Law, an ILC literature."
One of the underlying assumptions is that the coronavirus was developed purposefully by China and that it was unleashed on the world.
One way we can think about this matter is as follows:
1. We can look at whether China behaves in a 'responsible' manner when it comes to biological weapons. Here, we can argue that China, as a member of the Biological Weapons Convention, and a history of being exposed to BWs, shown responsibility, as well as any other country in the world. Even signatories to such conventions take measures in secrecy to develop and stockpile which will remain shrouded in secrecy and very hard to be decisively established.
2. One feature of modern states and their relationship with weapons, is their interest in controlling weapons, so that they can maintain their monopoly over violence. So I am not at all convinced that China would unleash a virus on the world without an ability to control the virus. The spread of the virus and the rise of new strains and mutations shows a dynamic process at work, which I am not sure that even powerful states like China can game or model, to gain strategic advantage over other countries. A satirical account of the spread of coronavirus in India is worth a close read.
"Virus: Yours is the only country that has implemented every single one of our recommendations.
Me: What recommendations?
Virus: India is a large country, but its cities are not well connected with the hinterlands. We needed help in rapidly expanding our geographical footprint. So we suggested a unique lockdown model wherein migrant workers in cities are forcibly held back for a few weeks in overcrowded conditions where chances of infection are high, and then gradually allowed to disperse to villages across the country. Your government loved our suggestion. India’s unique, zero-notice lockdown gave us the initial boost we needed — a generous seed fund of infections — in order to become Atmanirbhar in India."
3. On the question of liability, in the absence of decisive truth about the source and origin of the virus any call to hold China accountable, directly, are a non-starter. That said, the suspicions and acrimony over the matter are going to directly affect how countries deal with China going forward.
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STRING OF PEARLS
"you can check out the String of Pearls doctrine written by the U.S firm Booz Allen Hamilton to further understand the context behind the actions that countries such as India are doing with regards to the South China Sea as well the IOR."
The String of Pearls theory is a term coined by US consultancy Booz Allen Hamilton published “Energy Futures in Asia." A nice overview can be read here: https://thediplomat.com/2015/10/where-is-the-string-of-pearls-in-2015/
Please read it before you use the concept.
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CUSTOMARY SOURCES OF I LAW
"Since customary law is founded upon the performance of state activities and the convergence of practices, in other words, what states actually do. It is the psychological factor (opinio juris) that needs some explanation. If one left the definition of custom as state practice then one would be faced with the problem of how to separate international law from principles of morality or social usage. This is because states do not restrict their behaviour to what is legally required. They may pursue a line of conduct purely through a feeling of goodwill and in the hope of reciprocal benefits. States do not have to allow tourists in or launch satellites. There is no law imposing upon them the strict duty to distribute economic aid to developing nations. The bare fact that such things are done does not mean that they have to be done." Malcom Shaw, p. 74-75, Chapter 3.
As the later explanation elaborates, when a question of determining a custom arises, then it is job of the adjudicatory body to examine the actions and the intent behind those actions of a state.
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