November 2020: Series 1

Around the World

It is the Sunday before the U.S. Elections!

Sahibnoor Singh Sidhu

The United States is gearing up to one of their most controversial yet consequential elections on November 3rd. The Republican Party ticket of President Donald J. Trump and Vice-President Mike Pence is defending their actions in their first term of presidency from 2016-2020 against the Democratic Party ticket of Former-Vice President Joseph R. Biden Jr. and Senator Kamala Harris. The campaign which started with a large pool of Democratic candidates and fierce debates on the one hand and an almost unopposed Donald Trump on the other has after almost a year and a half finally reached its pinnacle. This is Joe Biden’s third run for the presidency after having failed to clinch the highest political office in 1988 and 2008.

The presidential campaign has seen a stark contrast between the two candidates with Donald Trump continuing to hold increasingly large public gatherings without social distancing or masks and Joe Biden holding virtual or drive-in rallies. The consequence of these elections will be felt long after they are over. Especially in light of the recent confirmation of Justice Amy Coney Barrett to the Supreme Court of the United States and the upcoming hearing of the case against the Affordable Care Act (‘Obama Care’) before the Supreme Court. This further becomes more interesting because of the almost 10 million new people who have gotten a pre-existing condition as a result of their exposure due to the COVID-19. It will also be intriguing to see the developments that unfold after the results are declared. This is because while Joe Biden continues to lead in the polls, Donald Trump’s team has already instituted legal actions in various states against mail-in voting, a method which he himself has used until this year but now claims to be fraudulent. Over, 80 million people have already voted for the elections including a large number of people having requested for mail-in ballots.


Chilean Constitutional Rebirth

Mahima Balaji

On September 11, 1973 the government of President Salvador Allende of Chile was overthrown by a coup d’état led by Augusto Pinochet (read the history here). During Pinochet’s rule, a Constitution was promulgated in March 1981 and has been in force since. However in 2019, there were various protests in the region that demanded social reforms and constitutional changes — primarily, the demand for a representative constitution that did not date back to the Pinochet-era. 

Now, 32 years later, with an overwhelming majority of more than 78%, the citizens of Chile have voted to re-writing their Constitution, which many see as the root cause of their existing social and economic inequalities. Several of those in support believe that the existing constitution is one riddled with the undignified policies of the dictatorship’s system including profound censorship. Moreover, it was one that led to the concentration of wealth, power, and influence with an insulated minority (read more here).

With this profound victory, the voters have also elected for the new constitution to be drafted by a popularly elected body (hence lawmakers currently active would not be involved in the process). There will soon be elections for the Constituent Convention  in 2021, after which the elected representatives will submit a draft constitution to the voters in 2022 — which is when the earlier constitution is most likely to be repealed.

Human Rights

Unravelling France’s stance on Islam

Aditi Nagpal

The past week has seen France become embroiled in hate and controversy after a series of attacks in France and Nice. These attacks were carried out by suspected Islamist extremist assailants, who beheaded and killed several people. There are two primary motivators to the attacks: First, the beheading of a teacher, Samuel Paty, who showed his class caricatures of the Prophet Muhammed, published in satirical magazine Charlie Hebdo. The second, is Turkey’s ban on import of French goods, which led to a caricature of Erdogan in Charlie Hebdo, also poking fun at the Prophet. 

These attacks led French President Macron to condemn the attacks on freedom of expression and religion, and to stand against extremism in an interview to Al Jazeera on October 31st (found here). This has in turn spurned reactions from various groups. Turkey and Pakistan have reacted adversely to these comments, stating that they incite Islamophobia (see more here). They read these comments in line with Macron’s agenda to create a form of Islam compatible with the French republic, which he announced last month, and which is to be tabled in December. The new law is aimed at combating “radical Islam” and gives local officials additional powers to deal with displays of such extremism, and exerts greater control over Muslim spaces in France (for a detailed explanation of the new law, see here)  There is a large group of people who condemn the attacks in France advocating for an end to religious extremism as a guise for persecution (see here). 

The contestability of the claims against secularism in an international forum comes with its own set of problems. The international human rights regime dictates that this set of rights is to be guaranteed to citizens by the state (Article 2 of the ICCPR and the ICESCR). However both the ICCPR and ICESCR allow limitations and derogations to these rights, which give states the privilege to tailor the rights and allow certain limitations and derogations to be imposed on them as necessary in democratic society (Article 4 of both Covenants). 

International Arbitration

Tushar Mehta Advises GOI to Challenge the Vodafone Arbitral Award

Abhijeet Shrivastava

Last month, the Permanent Court of Arbitration had unanimously decided that India’s imposition of a retrospective tax liability on the Vodafone group was in violation of the India-Netherlands Bilateral Investment Treaty. The decision held that this tax imposition, which dated back to a transaction in 2007, was in violation of the “fair and equitable” treatment laid down under Article 4(1) of this BIT. This had significant bearings for India since it concerned liabilities amounting to USD 2.2 Billion (see here for an impact analysis). 

The decision came following a string of litigation in the past decade which had led to conflicting decisions. These events lead various speculations over whether this “chapter has been brought to a close”, i.e., on whether India could or should challenge this decision. On Tuesday, 27th October 2020, the Solicitor General of India, Mr Tushar Mehta advised the Indian government to challenge the award (see here). The question of law, he suggests, is whether the tribunal exceeded its powers in declaring a ‘sovereign’ state’s legislation as non-est and unenforceable. Mehta recommends that India must challenge the award before Singaporean courts, as Singapore was the seat of arbitration. It remains to be seen whether India will favour this route, and if this dispute shall continue on without closure.

Trade

Raghav Agrawal

Appointment of Ngozi Okonjo-Iweala blocked by USA

The WTO nominations committee recommended the appointment of Ngozi Okono-Iweala for the DG’s position at the WTO but the same was blocked by the US who continued to back South Korea’ Yoo Myung-hee for the position. The opposition of the US does not prevent her appointment but does delay the same with discussions regarding the appointment now being postponed to November 9th, after the conclusion of the US presidential elections. If appointed, she would be the first female and first African as the head of the WTO.

No Indo-Taiwan Trade Talks on the Table Anytime Soon 

The start of October 2020 saw the Indian government giving approval to Taiwan based Foxconn, an Apple supplier, to invest up to $1 billion for production, particularly in southern India. While India does not formally recognise Taiwan, the governments maintain unofficial diplomatic missions in the form of “representative offices” (see more here). However, in light of Taiwanese investment, alongside the Galwan valley conflict has brought support for the two governments to formally engage in trade talks as both witness relations with China deteriorating. 

However, contrary to any speculations, China has emphasised its stance and stated that it would “firmly oppose” any official exchanges between New Delhi and Taipei. Further adding that India “should remain committed to the One China principle and approach Taiwan-related issues prudently and properly.” (Read more here).

WTO Negotiations on E-commerce Related Topics

The WTO Negotiations have been ongoing since January 2019 with the number of participating states increasing from 76 to 86. Small group discussions coupled with plenary meetings have enabled discussions on a vast range of issues with the aim of delivering consolidated text by the end of the year. The co-conveners, Australia, Japan and Singapore, are working towards providing a streamlined text covering topic such as spam, source code, open government data, and online consumer protection. The importance of these discussions are further highlighted in the current pandemic scenario due to an increased preference towards online mediums.

International Criminal Law

Joint NGO Open Letter to ICC State Parties Seeks Transparency on the Election of the Next ICC Prosecutor

Ruchi Chaudhury 

A joint open letter by a group of non-governmental organisations wrote to the State Parties of the International Criminal Court (ICC) flagging their concerns on the process of electing the next ICC Prosecutor. The letter called for more transparency in the process and highlighted the need for thorough vetting of candidates to ensure that they meet the requirement of ‘high moral character’. The letter further urges the States Parties to employ values like fair treatment and equal assessment of all candidates in transparent deliberations. 

It should go without saying that the election of a new ICC prosecutor must be the result of a merit-based, rigorous, and fair assessment of the qualification of all candidates…Further vetting in relation to the requirement of high moral character should also be undertaken for all candidates, including adequate checks to identify whether there is any history of past work misconduct.

The 38 signatories to the letter include Africa Legal Aid, Justice International, Human Rights Watch, Open Society Justice Initiative and Women’s Initiatives for Gender Justice. The notable concern expressed is on the possible extension of the shortlist of candidates. The signatories represent that this is deviated from the Terms of Reference for the Prosecutor’s election adopted by the Bureau in April. 

You can read the full text of the open letter and view the signatories’ list here

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