The tenets of international law, in a post-2nd World War world would have different moral arguments – which are conceded and condensed into the principles and notions of a global community. Ideas such as multilateralism, sovereign immunity, responsibility to protect and collective security, for example – stem from certain American-European moral foundations of global governance, peace and international security. However, to be fair, we have to understand that the political transformation of international law despite being subjectively moral – cannot be dissected just on the basis the notions and principles that Kant, Grotius, Kelsen and other luminaries developed in the past centuries. Political and legal realities also determine the transformation of newer ideas and conceptions that shape the role and action of international law. This article is therefore a reflection on the political theory of ‘intersectionality’ and the practice of moral policing & their influence on the regime of international law, with a perspective on how AI plays an important role in a multipolar global order.
Political Neorealism and International Law: The Prelude
The scholarly space of international law and relations has been dominated and occupied by the scholars from Europe and the US for a long time. However, the domination of the think group in the realm of international law has very important linkages with the way the West seeks the East and other regions. There is no doubt that various philosophers in the West have achieved some amazing and reasonable theories and understandings of politics through the conceptions of libertarianism/liberalism, constructivism and classic conservatism. Today, this scholarly space is diverse – where scholarly spaces from China, Russia, Africa, India and even the Latin Americans are in the race to dominate and decolonize the notions of power, democracy, accountability and governance. As Dr S Jaishankar, India’s External Affairs Minister in his book ‘The India Way’ (2020) notes, he elaborates how the affirmative models of power and competence are changing, because of the way domestic interests work. Now, there is no chance to deny the fact that the system of a rules-based international order is under rigorous scrutiny, but the colours of criticism are indeed interesting, which shows the trend of change in terms of understanding global governance through the lens of international law.
Since, the West follows the traditional left-right model of politics, which has seen amends due to the rise of libertarian and centrist politics (especially in the United States), it is clear that the criticisms would therefore be measured in that way only. Interestingly, the side which represents the Left critiques the role of multilateralism in a manner such that it demands for more moral policing. For example, one of the most important criticisms made against Donald J Trump, Boris Johnson and others (who are termed collectively as populists) is that these leaders lack dignity and decency & also reflect a less trustworthy picture of their countries. The same criticism comes for the leadership in India, which like others, can be disputed on the basis of facts. Now, the conservative faction on the other hand emphasizes on non-interventionism, and demands at most times, now – that delicacy and decency are not the only grounds to judge diplomacy and leadership. They also emphasize the role of realpolitik and exceptionalism. There is no doubt that while both the sides of dissent have some partial truth, their critiques also reflect the intent cum common practice to enfranchise juridical philosophy and ideological obscuration to influence the stream of law and policy. Despite the uncertainty (until January 6, 2021, when the certification of the votes of Electoral College happen) in the US Presidential Elections 2020, a Biden/Trump Administration cannot ignore multipolarity and neorealism in the rules-based international order that the transatlantic alliances such as North Atlantic Treaty Organization and the European Union. Multipolarity defines a global order (and disorder) where there are no monopolized powers (unlike the Cold War when bipolarity between the US and the USSR was evident) while neorealism will endorse countries to adapt national approaches towards competition policy, tech, climate change, rule of law and human rights, which may or may not reconcile with the established notions of multilateralism as the US and the EU have been assuming so far before 2016. Both of the phenomenon drive and affect the way international law is upheld, violated, practised, democratized, belittled and even taken into poise considerations. Unlike the Cold War, where American international law was at its peak until 2008, a unilateral approach to interpret pure international law was discouraged by China, India, Russia, the UK and even the EU member-states, which follows from an array of issues of global and national concerns. We therefore see how the seemed understanding of a liberal order, which is often connoted with a subjective understanding and estimate of the global order. These are the following ways we can connote how international law resides in a neorealist world:
- WHO has been criticized for a loss of fairness and reasonability in action & commitment when it comes to the handling and ensuring accountability on investigating and monitoring the spread of COVID19. The fact is that the International Health Regulations of 2005 were not adequately adhered and the Director-General’s actions have been myopic in practice;
- The Security Council of the UN is criticized for not addressing the National Security Law for the Hong Kong Administrative Region and its implications on the strategic ties that the international community keeps with the People’s Republic of China;
- The UN Human Rights Council and the Office of the High Commissioner on Human Rights are criticized for their anti-Israel bias over approving sweeping resolutions and statements by non-democratic countries such as Venezuela, China, Iran & Saudi Arabia over the issue of Israel’s occupation of West Bank;
- The Prosecutor of the International Criminal Court, Fatou Benzouda has been criticized for her interest to open grounds of jurisdiction over Israel and Afghanistan;
- The World Trade Organization has been criticized for the Global North-Global South divide over TRIPS waiver for the COVID19 vaccines and not approving the same, due to the opposition by the developed countries from North America and Europe especially;
- The US has reasonably yet limitedly criticized the Paris Accords of 2015 for its inefficacy to prevent climate change via the indicators accepted in the Accord in China, Canada and the EU;
- South Asian Association for Regional Cooperation or SAARC has become obsolete due to the conflict between India and Pakistan after the Uri and Pulwama attacks;
- The European Union has been criticized for its inefficacy to sanction Turkey over the Nagorno-Karabakh Conflict;
The further sections of the article will cover intersectionality, and how does it affect the recourse and impartiality of the principles of international law, with special emphasis on AI and technology diplomacy.
Intersectionality and Moral Policing: Anomalies and Precedents
Let us understand the term Intersectionality clearly. Intersectionality is a framework that takes into account people’s overlapping identities and experiences in order to understand the complexity of prejudices they face, as the concept was derived by Kimberlé Crenshaw in her paper in 1989. Initially, the concept had to do with African-American people, but with time, as social justice in the US Academia became prevalent, ranging from Harvard to Yale, the idea of intersectionality became more obscure than before, because of the gaining opinionated visions of the political leaders in the US and Europe, which stems with the concept of transitional justice. As former UN Secretary-General Boutros Boutros-Ghali noted in his 1992 An Agenda for Peace to the UN Security Council and the General Assembly, he clearly stipulated about the role of UN beyond the cold war. After the collapse of the USSR, the US was the only dominant military and economic power until 2008, when after the Euro crisis, the BRICS, Shanghai Cooperation Organization and the European Union earned their relevance into the geopolitical space. Often, the Americanization of issues of concern affect the way international law works. For example, in various disputes in West Asia and Indo-Pacific, the past presidents of the US have been accused of not abiding by international law and misusing the conception of international law altogether. One of the clear examples was the aftermath by the NATO-led airstrikes in Libya in 2011, which was crafted in lead by the Obama Administration, frankly. The attack was in line with the notion of transitional justice to ensure democracy in Libya, but the situation worsened the geopolitical scheme of the post-Cold war states in Africa, which still had not deescalated from imperialism, colonialism and Soviet communism. Still there are countries, which have ongoing armed conflicts, where humanitarian aid on the purpose of token is not driving any reform or development in the continent. In fact, the Deputy Ambassador to India’s Permanent Mission of the UN, K Nagaraj Naidu, clearly in an address to the UN Security Council on February 13, 2020, made it clear that transitional justice and issues of reparation must be dealt with reasonability to avoid any destructive and restrictive intervention of state and non-state actors, in the name of respecting the doctrine of responsibility to protect. The US Government under Donald J Trump, has ordered Sudan to pay 335 million USD to the US victims of terror, marking a reasonable and coherent way to deal with acts of terrorism.
Now, the role of moral policing is very important here, because intersectionality still drives politics in the developed countries much, which countries in the Global South do not agree much with. Moral policing specifically means that any person or entity might police some individual or group or entity to act or behave the moral and ‘good’ way as is generally expected. In India, some relevant action is being taken to address moral policing despite the fact that the Code of Criminal Procedure in India gives loose powers to the police forces to arrest and manipulate the chances and considerations of custody of people. However, these issues can be addressed as basic and procedural. However, narratives are being created in the developed countries, especially in the US, where people consider action over some presumed ‘structural racism’ that affects the human rights and justice administration infrastructure in the US. Articles on ‘systemic racism’ are being written, where distributive justice as an idea is being extended. The problem however lies with the way we see the problem. For example, after the George Floyd case, there are calls to establish an international commission of inquiry on the issue of racial discrimination in the United States. However, a sentimental response to this issue did never solve and plummet racism in general. In fact, the riots that emerged after the resurgence of the Black Lives Matter movement in several US states, China tried to embrace the cause, which backfired abruptly, showing the unreasonable internationalization of issues of social and individual concern, which unless if are addressed beyond the urge of culture and narrative wars, then does not even serve any purpose. Additionally, if we read some articles which have been written on international law and relations & racism, we will find the common thread that systemic racism is either genetic or too much inherent, which again shows nothing but the examples of political subversion. The need to form narratives on every global issue, whether climate change, the impact of AI or cybercrimes without even researching and understanding the national contours and realities of the problems avoids any chance of clarification or feedback.
Again: science of action does not ever care about emotions, but what matters is that such calls to form commissions is seriously against the sovereign equality of the United States. It is as same to say when international law is interpreted by non-state actors on the Kashmir question (for example), while the Security Council resolutions and even the ICJ Advisory Opinion on the Wall (the Israel-Palestine issue) favour India with fairness. Pakistan and its allies can spread any propaganda, but the occupation of Kashmir is against any chances of plebiscite and thus, India’s position is not only constitutionally valid before and after the dilution of Article 370 of the Constitution of India, 1950, but is also sui generis.
Again: the call for action by the OHCHR experts on the Black Lives Matter campaign and organization anyways has to be dealt with a sense of fairness. The problems of racism in the US are real, but they cannot be used in order to advance for any illegitimate claim to cause moral policing. And this moral policing does not limit to OHCHR statements or riots. It extends to the way cyberspace and AI are designed. In fact, Facebook and Twitter have been regularly accused, rightfully, of their way of dealing with the politics and warfare of misinformation as a moral issue rather than a schematic, technical or legal issue. The hash tag of Black Lives Matter was used to infuse populism through algorithmic means of channelling content – which means driving any content based on one or some narratives with common goals. Thus, what we can understand from the incidents related to intersectionality in the US and Europe – on moral policing and international law are as follows:
- Free speech is absolute, and laws do not often help in addressing issues. Merely tagging or designating issues as ‘systemic’ does not offer a free hand to dismantle any status quo. The most scientific way to deal with issue, social or political is forming policies or ground-level efforts, which are strategic, in line with the principles of law;
- Moral policing seems to be a comforting thing, but morality, in practicality is a selective trait that motivates any action or omission. The role of statutory bodies and multilateral organizations as intra-actors and ultra-actors respectively is to avoid any misuse of abuse of mandate they have. At the same time, since such actors in the past have been found responsible and reprehensible in their careless actions over issues of critical importance, the notion of sovereignty in international law becomes more crude, and more protectionist. Such trend is clearly visible in the West, which anyways led to Brexit in the UK, and the need to adopt principled realism as proposed by Donald J Trump, Richard Grenell and even Jared Kushner;
- Blaming populism of a political faction alone does not solve the issue of moral policing. It means that our 100-year-old conceptions intra-actors and ultra-actors, such as trade unions, international tribunals and organizations, statutory bodies in law, education and other fields for that matter, have some anthropological transcendence to the past in which they were made, with heavier and complex responsibilities in a multipolar world. For example – recently, the US House of Representatives pass a 5,593-page bill sponsoring millions of US Dollars for ‘democracy-related activities’ in South Asian countries such as Pakistan, Nepal and Bangladesh so to mention, which even is more than being interventionist in the global and national affairs of other countries. The move is worth criticism, and is precedential. In the wake of populism, the misuse of influence over global politics by the US politicians – is somewhere really a matter of grave concern;
- Internationalization of any matter is normal when the values of multilateralism and multiculturalism are conversed and spread across the world. There is nothing wrong if people from an X country are concerned about the situation of a set of people in a country Y. The concern however does arise when the very idea that globalization enables to connect people around the world nullifies the need to introspect and verify all the proper details of any issue of concern;
- International Law cannot ignore the role of information warfare. Geopolitics and its background-check was made possible through the notions of sovereign equality, transitional justice, responsibility to protect and collective security (Art. 51 of the UN Charter) to ensure that the international community sustains economic, social, cultural, political and individual freedoms of the post-colonial states. However, like cyberspace as an invisible territory of warfare and so, international law (as the Tallinn Manuals suggest), information warfare must at least not be ignored, because even the centres of authenticity of any ‘information’ or ‘intelligence’ are divided or seem to be utterly distributable. For example – if any event happens in a particular place of action, and the government of jurisdiction has to disclose the details of the incident, but via avoiding any loss of face, they can – through unseen means – employ or direct any media network or proxy group to share some information or intelligence, which people can anytime regard as information or misinformation. This example itself shows how difficult and complex information warfare has become, can become and how will affect the technocratic approach of fact-checking, information validation and propriety of facts in information law. Cyberspace and metaphysics anyways drive the neorealist way of information warfare.
(This post is authored by Abhivardhan, Chairperson & Managing Trustee, Indian Society of Artificial Intelligence and Law)
- Kimberlé Crenshaw (1989). “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics” (PDF). University of Chicago Legal Forum. Archived (PDF) from the original on 13 May 2018 ↑
- According to the International Centre for Transitional Justice,
“Transitional justice refers to the ways countries emerging from periods of conflict and repression address large-scale or systematic human rights violations so numerous and so serious that the normal justice system will not be able to provide an adequate response.” Further is available at https://www.ictj.org/about/transitional-justice ↑
- For context, please read this analysis by Ameya Pratap and Urvi Tembrey: https://www.statecraft.co.in/article/india-s-claim-to-jammu-kashmir ↑
Cite As: Abhivardhan, ‘Intersectionality, Moral Policing and International Law: An AI Perspective (Part I)’ (The Contemporary Law Forum, 20 January 2021) <https://tclf.in/2021/01/20/intersectionality-moral-policing-and-international-law-an-ai-perspective-part-i> date of access.