OBSERVARE
Universidade Autónoma de Lisboa
e-ISSN: 1647-7251
Vol. 10, Nº. 2 (November 2019-April 2020)
Vol 10, Nº. 2 (November 2019-April 2020)
https://doi.org/10.26619/1647-7251.10.2
ARTICLES
The UN in Conflict Resolution: The Case of East Timor* - Francisco Proença Garcia, Mónica Dias e
Raquel Duque – pp 1-11
Opportunities for conflict prevention. Lessons from the Economic Community of West African States
(ECOWAS)* - Jara Cuadrado – pp 12-32
The influence of climate change on the escalating communal conflict between herdsmen and farmers:
the case of the Fulani ethnic group in Nigeria* - Gustavo Furini – pp 33-52
European Union, Russia and the MH17 case: strategic narratives’ analysis (2014-2019)* – Paulo
Ramos e Alena Vieira – pp 53-67
Global Security Assemblages: mapping the field* - Jovana Jezdimirovic Ranito – pp 68-81
Why Is It Important to Use Regional Lenses When We Look into Civil Conflicts in the MENA? - Samer
Hamati – pp 82-91
China's cooperation in Africa in the area of physical connectivity infrastructure. The case of the
Mombasa-Nairobi railway line - María Noel Dussort e Agustina Marchetti – pp 92-109
The 3 Seas Initiative: Geopolitics and Infrastructure - Bernardo Calheiros – pp 110-123
Rights of migrants: notes on the jurisprudence of the Inter-American Court of Human Rights - María
Teresa Palacios Sanabria – pp 124-140
Between freedom of contract and the principle of good faith: an inside view on the reform of private
law of Kazakhstan - Kamal Sabirov, Venera Konussova e Marat Alenov – pp 141-151
The Observance of Human Right to Freedom from Torture in Professional Activity of the National
Police of Ukraine (Article 3 of the Convention for the Protection of Human Rights and Fundamental
Freedoms) - Andrii Voitsikhovskyi, Vadym Seliukov, Oleksandr Bakumov e Olena Ustymenko – pp
152-165
* Special issue of articles presented at the 1st International Conference on Conflict Resolution and
Peace Studies that took place at UAL on the 29
th
and 30
th
of November 2018.
OBSERVARE
Universidade Autónoma de Lisboa
e-ISSN: 1647-7251
Vol. 10, Nº. 2 (November 2019-April 2020), pp. 1-11
THE UN IN CONFLICT RESOLUTION: THE CASE OF EAST TIMOR
Francisco Proença Garcia
franciscoproencagarcia@iep.lisboa.ucp.pt
Reserve Lieutenant Colonel. Associate Professor with Aggregation at the Institute of Political
Studies of Universidade Católica Portuguesa (Portugal). Invited Professor at the Faculty of Law of
Universidade Nova de Lisboa and at Instituto Universitário Militar. He was Planning Officer of the
PKF/UNTAET Central Sector Command Headquarters in East Timor (2001). He is Director of
Sociedade de Geografia
Mónica Dias
moni@iep.lisboa.ucp.pt
Coordinator of the Doctoral Programme at Institute of Political Studies, Universidade Católica
Portuguesa (Portugal). PhD in Political Science and International Relations, conducts research in
Conflict and Peace Studies, Democracy Studies, Contemporary International Politics and Human
Rights. Taught at University of Cologne and United States Information Agency Summer School.
Raquel Duque
raquelsantosduque@gmail.com
Ph.D. in Political Science and International Relations: Security and Defence, Master in
International Security and Terrorism. Invited Assistant Professor at the Institute of Political
Studies, Universidade Católica Portuguesa, Portugal) and at the Instituto Superior de Ciências
Policiais e Segurança Interna. Researcher at the ICPOL Research Centre, at the Research Centre
of the Institute for Political Studies and at the Centre for Administration and Public Policy, ISCSP.
Abstract
The involvement of the United Nations in East Timor can be divided into four periods, including
the anti-colonial period (1955-1974), the reaction period (1975-1982), the attenuation period
(1983-1998) and the commitment period (from 1999). It is about this last period that this
paper will focus by analysing the decisive steps of the UN, as a multilateral organization with
a security mandate, in resolving the Timorese conflict and peacebuilding in that territory. This
analysis will be guided by the proposals of the document "An Agenda for Peace" presented in
1992 by Boutros Boutros-Ghali, then Secretary-General of the United Nations, and the
expectations he created in the field of peace operations. We are particularly interested in
looking at the design of post-conflict peacebuilding missions and assessing the extent to which
the (expected) capital gains from these operations compared to conventional peacekeeping
missions would come to fruition or not. Thus, it is important to examine how the main missions
were carried out, with special focus on the different actors, as well as to make a critical balance
with some historical distance. In this context, it seems to us that the case of East Timor will
be a good example to understand the need for a new approach to peacebuilding, as advocated
in this Report, but which at a distance of more than 25 years becomes even more evident.
The perception of peace as a continuous process that involves a whole sustainability network,
and that depends above all on fostering and developing competences for peace (involving
multiple and distinct actors facing constant coordination and negotiation challenges),
therefore allows demanding greater commitment on the part of the Security Council, but also
on that of the General Assembly in carrying out this difficult task in the context of the new
world (dis) order.
Keywords
Peace Studies, International Organizations, Peacekeeping Operations, Governance and State
Building, Timor-Leste
How to cite this article
Garcia, Francisco Proença; Dias, Mónica; Duque, Raquel (2019). "The UN in Conflict
Resolution: the case of East Timor". JANUS.NET e-journal of International Relations, Vol. 10,
N.º 2, November 2019-April 2020. Consulted [online] on the date of the last visit,
https://doi.org/10.26619/1647-7251.10.2.1
Article received on November 29, 2018 and accepted for publication on June 28, 2019
JANUS.NET, e-journal of International Relations
e-ISSN: 1647-7251
Vol. 10, Nº. 2 (November 2019-April 2020), pp. 1-11
The UN in conflict resolution: the case of East Timor
Francisco Proença Garcia, Mónica Dias, Raquel Duque
2
THE UN IN CONFLICT RESOLUTION: THE CASE OF EAST TIMOR
Francisco Proença Garcia
Mónica Dias
Raquel Duque
I. The UN in conflict resolution
The last decade of the twentieth century witnessed remarkable changes in the field of
geopolitics that have shifted the artificial peace between the eastern bloc and the western
bloc to a globe fragmented in a growing number of sovereign states and non-state actors
with a high transnational role (especially for example, economic and financial groups,
non-governmental organizations with the most diverse claims, organized crime networks
or terrorist groups). These transformations were accompanied by major technological
advances in various sectors such as communications, information, and military, which
saw the evolution of armed and unarmed conflicts, notably in cyberspace war. The
prevention of conflict between states was a central objective of the United Nations.
However, the governing charter of this organization does not specify conflicts within the
states which, in the post-Cold War environment, have been prevalent, with complex
situations such as the Balkan war or the genocide in Rwanda, and have required a
response from key actors in the international space.
Faced with an accelerated and complex international dynamic in the webs of
interdependencies that are generated among the multiple actors of the new (and
uncertain) world order, the then UN Secretary-General Boutros Boutros-Ghali understood
the need to provide an answer adjusted to the new context, requiring the commitment
of all states to the goal of peace. The Agenda for Peace. Preventive Diplomacy,
Peacemaking and Peace-Keeping Report (United Nations, 1992)
1
embodies Boutros-
Ghali's vision and proposes to transform the pathways leading to peace - in a manner
complementary to the UN Charter that already provided for peacekeeping operations in
Chapter VI and peace enforcement operations in Chapter VII.
Twenty-six years later, the UN remains the most recognized and comprehensive
international forum for peacemaking, and Boutros-Ghali's legacy endures in stimulating
new conceptions of conflict resolution. Perhaps an element that underpins the durability
of the Agenda still in 2018 is the innovative formula for post-conflict peace building,
which encourages the development of research in peace studies and yields effective
1
Hereinafter referred to as an Agenda for Peace or simply Agenda.
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The UN in conflict resolution: the case of East Timor
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3
results on the ground. On the one hand, this document has declared a crucial premise
for any peace debate in the new international system that traditional means of ending
wars would be inappropriate to the configurations of modern conflicts. In this way, the
Agenda for Peace seeks to establish a solid starting point for peace maintenance and,
furthermore, introduces a new peace paradigm: peace as a mission that cannot be done
but rather developed through the commitment of all those who have been affected by
the conflict, that is, in a commitment extended to the whole of society.
In the wake of Immanuel Kant, a more complex foedus pacificum (1795) overlaps a
pactum pacis and thus the peace solution advocated by the Agenda goes beyond mere
political truce and advances towards the inclusion (i) of political institutions’ reform ii)
security, iii) rebuilding infrastructure, as well as economic, social and cultural capacities
that empower people, stimulate civil society, foster cooperation within the community
and the regions and eliminate the causes of extreme poverty, fear, oppression, hatred
and resentment. On the other hand, the Agenda for Peace acted as an alarm that sounded
at the highest levels of the UN itself, namely the Security Council and the General
Assembly, to demonstrate that conventional UN Peace Missions - more positive in
interstate rather than intrastate conflicts (Branco, 2004: 108-109) - will not be able to
respond to new threats to peace and will have to adjust to contemporary conflicts.
Here, of course, we have to point out that the notion of conflict has changed decisively,
posing new challenges for those seeking to relieve tensions. Areas of violent conflict have
emerged in border regions and at an intrastate or sub-state level, creating true
“enclaves” of war (urban or regional) in peaceful spaces (Manwaring, 2005). But it is
especially in regions where the state no longer (or not yet) has a monopoly on the
legitimate use of force, nor is it capable of fulfilling the most basic governance tasks that
this type of conflict breaks out. These regions are often in a phase of reconstruction after
long periods of war in which (re-)conciliation efforts have not yet overcome the culture
of violence, but also during independence processes following the fall of dictatorial
regimes in which the transfer of power has not yet been consolidated or regulated.
However, it is important to note that these “new wars” (Creveld, 1991; Duffield, 2001;
Kaldor, 2001; Kalyvas et al., 2008; Münkler, 2003) can also be understood as a return
to the old forms of violent conflict that have marked societies for thousands of years and
which, in fact, have only recently changed, largely from a culture of war that the
“euroworld” has imposed (Keegan, 1993; Münkler, 2003).
2
In any case, the idea of post-conflict peacebuilding already reflects this “new context”
(Boutros-Ghali, 1992) in that it points to a whole different approach to peacebuilding,
which requires greater involvement not only during the conflict, but also in the moments
preceding and following the escalation of violence, integrating in this post-conflict phase
the reconstruction of key areas for sustainable and appropriate peace throughout society.
We can observe two orientations of this paradigm shift, one concerning the concept of
peace, the other concerning the practice of peace missions, both interconnected and
concerned about peace as the possible mission that can be achieved in a medium-term
strategy. According to the first guideline, in the Boutros-Ghali statement, peace is
understood as a composite or comprehensive value. Drawing on innovative and critical
studies of peace studies, developed by experts such as Johan Galtung (1969) or Dieter
Senghaas (1971), peace is conceived not only as the absence of direct violence or war,
2
The discussion about the “new wars” concept, however interesting, goes beyond the scope of this article.
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The UN in conflict resolution: the case of East Timor
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4
but above all as the possibility of life without indirect violence (such as political and social
repression) and with full participation in free and fair institutions (including forms of
education) that generate civil capacities for tolerance, consensus building through
pluralistic and competitive debate and conflict resolution. Senghaas' conflict management
proposal, called Zivilisierung - which is today a cornerstone of peace studies - seems
particularly relevant to us, as it implies an integrated vision of appeasement that is
reflected in the political and social coexistence of the communities to be rebuilt in the
post-war world. It is worth recalling, briefly, the “civilizational hexagon” model
(Senghaas, 1971) developed by this author as part of his ideas on peacebuilding. Thus,
peace is essentially seen as a project of civilization that corresponds to a course of
individual and collective appeasement
3
. In the theoretical debate, the civilizational
hexagon represents, figuratively, the interdependence between six factors considered
essential to the possibility of peace. The first factor would be the monopoly of violence.
Only this legitimate monopoly (that is, according to precise laws) of state violence, which
would require the disarmament of the population and the general prohibition of non-
state-dependent armed groups, could ensure discursive conflict management in the
public space, gradually eliminating the use of force as a combat pattern and stimulating
argumentative forms in the defence of confronting particular interests. The second factor
would underline the imperative of the rule of law, in that the monopoly of state violence
presupposing transparent, regulated and controlled mechanisms would not be sufficient.
For Senghaas, the whole political architecture of a state committed to peace is based on
respect for a constitution that enshrines the division of power, equality before the law
and all the other principles that characterize what we understand today as a democratic
rule of law state. The third factor draws attention to the control of passions. In an open
society, moderation is, as a domestication of impulses, a way of peacefully managing
conflict and replacing violence with tolerance. Social and political peace thus presupposes
individual competences for self-control and moderation of the passions. Democratic
participation emerges as a fourth factor, highlighting not only the importance of political
participation, but also thorough learning of democratic rules that require commitment,
cooperation and accountability. In the context of modern societies strongly marked by
permanent changes and re-adaptations, critical and active collaboration is all the more
important. Social justice is the fifth factor in Senghaas’ model. Drawing on several
examples of states in which serious violent conflicts have arisen, the author highlights
the importance of social justice as a political fair play that guarantees equal opportunities
and solidarity, enabling trust and hope in the state - values that give rise to the
availability of cooperation and peaceful conflict management. Finally, constructive
conflict management is outlined as a sixth factor. Following the above factors, regarding
the ability to choose nonviolent ways to confront and work conflicts, Senghaas points to
a whole culture of peaceful conflict regulation that is already a result of previous
conditions or learning. It presupposes habits and good examples, and probably certain
characteristics considered as “virtues” (tolerance, moderation, empathy, commitment,
respect for social and political rules, willingness to trust, etc.) that facilitate a peaceful
coexistence in plural and multicultural societies. This last factor already points to the
synergy of all the factors that constitute the “hexagon” that would thus allow a culture
of peace as an act of moralization, humanization or “civilization”.
3
It should be noted that in applying the concept of “civilization” to peace studies, Senghaas was greatly
influenced by the concept of “civilizational process” coined by Norbert Elias (1994).
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The UN in conflict resolution: the case of East Timor
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5
Returning to the second paradigm shift orientation mentioned above and related to the
practice of peacekeeping, it must be said that post-conflict peacebuilding must increase
and deepen the maintenance of traditional peace on the ground. It is not intended as a
replacement or upgrade for peacekeeping missions, but as a natural complement that
can provide a stronger scope for the increasingly complex (and networked) UN work.
Thanks to the impact of an Agenda for Peace, which anticipated many trends in the
international political arena, peacekeeping missions have expanded greatly since 1992.
A simple analysis of the number and nature of missions, but also of the resources involved
(including financing, materials, structures and labour) attests their growing strength. This
is particularly true when we consider the UN's ability to involve non-governmental
organizations in peace operations and to promote military, paramilitary and civilian
cooperation on the ground. For an overview of this work we highlight the universe of UN
peacekeeping missions revealing the peace effort: a total of 71 missions, with 14 active
missions around the world
4
.
It is also important to mention the UN's willingness to integrate different concepts of
peacebuilding that derive not only from a general and universal idea of peace (which is
in line with Western culture) and that it intends to impose “from above downwards”- but
which stem precisely from the local traditions of undeveloped communities (“bottom
up”), as explained, for example, by the works of John Paul Lederach and Janice Jenner
(2002) or Wolfgang Dietrich (2005). The authors understand peace as a plural concept,
of varied materializations, but always integrating a strong notion of civic participation of
the affected population. In this regard, they also warn for the need for each peace
operation to be different, depending on pre and post-conflict conditions, the intensity of
the conflict and the parties involved, the remaining resources and infrastructure at the
end of the escalation of violence, and previous culture and political organization.
All these meanings fed (and later fed themselves) on Boutros-Ghali’s Agenda for Peace.
Conceptually, this document we are discussing here has opened the door to new
reflection on peace and ways and means to implement it on the ground. In this regard,
we mention the comprehensive approach developed in NATO operations or, previously,
the innovations introduced by Security Council Resolution 1325 on Women, Peace and
Security of 31 October 2000.
If we follow the ideas of Michael Doyle and Nicholas Sambanis in their attempt to assess
United Nations peacekeeping operations in 2006 - as well as their critical but nonetheless
constructive concerns - the overall conclusions are encouraging (Doyle and Sambanis,
2006). Thus, despite their many imperfections, the positive results achieved in just a
generation, reaching millions of lives and peoples, reveal these operations as a world
stronghold of hope. In this regard, we can conclude that, rather than responding to the
Security Council's request to make recommendations to strengthen peacebuilding and
peacekeeping in the post-Cold War era, the Agenda for Peace has revitalized all of the
UN’s peace work, bringing peacekeeping operations to a broader level with high impact
and long-term return.
4
As of writing this paper, the field missions are as follows: Haiti (MINUJUSTH), Mali (MINUSMA), Golan
(UNDOF), Abyei (UNISFA), India and Pakistan (UNMOGIP), Western Sahara (MINURSO), Democratic
Republic of the Congo (MONUSCO), Cyprus (UNFICYP), Kosovo (UNMIK), Middle East (UNTSO), Central
African Republic (MINUSCA), Darfur (UNAMID), Lebanon (UNIFIL) and South Sudan (UNMISS).
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The UN in conflict resolution: the case of East Timor
Francisco Proença Garcia, Mónica Dias, Raquel Duque
6
After the Agenda, other documents and ideas followed and contributed to the updating
of UN action in conflicting territories and their missions, namely the Brahimi Report
(2000), Capstone Doctrine (2008), or the New Horizon Process (2009).
In an effort to take stock of the then six decades of missions and to present written
guidelines for action in complex crises, the United Nation Peacekeeping Operations -
Principles and Guidelines, also known as the Capstone Doctrine
5
, was published in 2008.
In 100 pages, the biggest challenges for UN operations are exposed, as well as the
relevance of the ongoing dialogue between the various actors involved in the mission
scenarios for adjustments whenever situations require it. Thus, the Capstone Doctrine
systematizes seemingly obvious elements, such as the normative framework within
which UN peacekeeping operations are supported, while exposing strategic and
operational elements, such as deployment and placement phases, or hand over and
withdrawal periods.
The New Horizon process, which began in 2009 and aimed at developing a forward-
looking agenda for partnership-based, broad dialogue-based UN peacekeeping
operations, benefited from the launch of an internal document entitled A New Partnership
Agenda: Charting a New Horizon for UN Peacekeeping
6
, which has been shared with
Member States and other partners.
In this set of initiatives leading to as effective as possible peace missions, it is also
relevant to mention the UN High-Level Independent Panel on Peace Operations, created
in October 2014 during Ban Ki-moon's mandate, composed of 16 individuals (including
José Ramos Horta of Timor-Leste, who chaired the meeting). The purpose of this Panel
was not only to conduct a comprehensive assessment of peace operations, but also to
assess future needs and the role of the UN, following the changes and developments in
the conflicts themselves. The report was finalized in June 2015 and was delivered to both
the General Assembly and the Security Council, which have attempted to assimilate and
accommodate the 166 recommendations covering nine strategic areas.
In order to demonstrate the contribution of the UN Missions and the steps to effect a
peacebuilding process, which was already implicit in the (now expanded) peacekeeping
operations, we would like to present the case study of East Timor.
II. The case of East Timor
The UN has a long-term involvement in East Timor. However, we will narrow the analysis
of this work to the period after 1999 and include Indonesia, as the internal situation in
this country had significant repercussions on East Timor. The 1997 Asian financial crisis
that affected Indonesia, among other countries, was so serious that it involved the
intervention of the International Monetary Fund with a $11.4 billion aid package for a
three-year period (International Monetary Fund, 2000).
The internal situation worsened and General Shuarto left the scene after three decades
in power, giving way in 1998 to a new President, General Habibie, who embarked on a
set of political reforms, including a change of attitude regarding Timor. Indeed, on 5 May
5
United Nations (2008). United Nation Peacekeeping Operations – Principles and Guidelines, Department of
Peacekeeping Operations and Department of Field Support, New York.
6
United Nations (2009). A New Partnership Agenda: Charting a New Horizon for UN Peacekeeping,
Department of Peacekeeping Operations and Department of Field Support, New York.
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1999, an agreement was reached in New York between Portugal and Indonesia with a
view to (i) holding a popular consultation with the Timorese people under the aegis of
the UN, and (ii) establishing Indonesia's responsibility for peace and safety in East Timor,
to ensure consultation in a peaceful environment free from pressure or intimidation.
However, even before the popular consultation, there were episodes of great violence,
codenamed Operasi Sapu Jagad, deliberately led by militias of the East Timorese and
Indonesian military of the TNI (Tentarra Nasional Indonesia/Indonesian Armed Forces).
The UN has kept a close eye on developments, and in order for this consultation to take
place without interference, the Security Council approved the establishment of a mission
to organize and conduct the process of consultation with the population in East Timor,
UNAMET (United Nations Mission East Timor) through Resolution 1246 of 11 June 1999
and with a mandate from June to October 1999. The popular consultation took place on
30 August of that same year and had significant independence-friendly results (78.5 %
of the votes), which surprised the Indonesian power (which considered that the option
of special autonomy within Indonesia would be the most voted) and which led to an
unprecedented wave of violence by the integrationist militias.
As UNAMET was a political mission and the occurrence of violence multiplied, the Security
Council, through Resolution 1264 of 15 September 1999, created an international force,
the International Force in East Timor (INTERFET), to restore the law and order in the
country, to protect and support UNAMET and to facilitate humanitarian assistance. On 20
September, INTERFET, under Australian command and with Indonesian consent, started
its command in Dili with a military force of approximately 7,500 men from 12 countries.
An important step in the construction of this new country was taken by Indonesia when
it revoked the annexation of the 27th Province, East Timor, on 19 October 1999. A few
days later, on 25 October, the Security Council established, by Resolution 1272, the
UNTAET (United Nations Transitional Administration in East Timor) as a multidimensional
peacekeeping operation, whose mandate ranged from October 1999 to May 2002. The
central objective of peacekeeping operations was to create conditions for the stability of
a country, in such a way that it was possible, in a peaceful environment, to invest in
human resources training and institutional development, thus contributing to the
legitimacy of the (new) state. Indeed, UNTAET was active on three fronts: a transitional
UN administration of East Timorese territory, with powers to exercise all legislative and
executive functions, including the administration of justice and public order with the
police forces; security functions and maintenance of military order; and the coordination
of humanitarian assistance.
East Timor became an independent country on 20 May 2002, when UNTAET was replaced
by UNMISET ((The United Nations Mission of Support in East Timor) by Resolution 1410
of 17 May 2002. This new peacekeeping mission had an initial mandate of one year and
was committed to ensuring the security and stability of East Timor, notably in assisting
administrative structures critical to the political viability and stability of the country;
supporting public security and police development; and maintaining East Timor's external
security. UNMISET has had its mandate renewed until 20 May 2005 as a means of
securing and consolidating the achievements of UNTAET and until the Timorese
authorities assumed their responsibilities autonomously.
In May 2005, with the end of UNMISET's term of office, a political mission, called the
United Nations Office in Timor-Leste (UNOTIL), was created to assist in the development
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of basic Timorese state institutions, including police forces, and to provide training in
democratic governance and human rights. With an expected duration of one year (until
May 2006), the UNOTIL delegation was on the ground until August of that year due to
the worsening of the political, humanitarian and security situation. The conditions
worsened to the extent that on 11 June 2006, the country's highest political authorities,
namely the President of the Republic, the President of Parliament and the Prime Minister,
sent a letter to the UN Secretary-General requesting him to propose to the Security
Council the establishment of a United Nations police force in East Timor to maintain order
until the reorganization of the national police. Indeed, the Secretary-General
recommended a multidimensional and integrated UN mission to support the Timorese
government in various aspects, namely national reconciliation, electoral processes for
president and parliament, security and institutional capacity building in the region, and
monitoring the promotion and protection of human rights.
The last United Nations peacekeeping mission in East Timor, the United Nations
Integrated Mission in Timor-Leste (UNMIT), was established by Resolution 1704 of 25
August 2006 and had its mandate extended until 31 December 2012. During this period,
it was important to consolidate what had been achieved and to ensure stability,
democratic governance and political dialogue between the various actors of Timorese
society for a process of national reconciliation and solid national cohesion. This mission
was ground-breaking and consisted of the creation of a joint plan between the
government and UNMIT (Joint Transition Plan) outlining 129 activities that met the
priorities and objectives for the transitional period from September 2011 to the end of
the UNMIT mandate in December 2012.
Table 1 summarizes the missions referred to in the paragraphs above, as well as their
mandates.
Table 1. UN Missions in East Timor
Mission
Mandate
UNAMET
United Nations
Mission in East
Timor
Security Council Resolution 1246 of 11 June 1999 established UNAMET until 31
August 1999 to organize and conduct the popular consultation scheduled for 8
August 1999.
Resolution 1257 extended the mission to 30 September 1999.
UNTAET
United Nations
Transitional
Administration
in East Timor
Security Council Resolution 1271 of 25 October 1999 established UNTAET with
the responsibility to administer East Timor, having executive and legislative
authority, including the administration of justice.
UNTAET was in operation from 25 October 1999 to 20 May 2002.
Total human resources: 9,150 military personnel; 1,640 police officers; and more
than 2,000 civilians (international and local).
There were a total of 17 human casualties (15 military personnel, one police
officer and one military observer)
UNMISET
The United
Nations
Mission of
Support in
East Timor
Security Council resolution of 17 May established UNMISET with the mission of
providing assistance in administrative areas vital to East Timor’s political viability
and stability, as well as security.
The mandate of UNMISET was effective form 20 May 2002 to 20 May 2005.
Initially, the human resources dimension foresaw about 5,000 military personnel;
1,250 police officers; about 1800 civilians (including international staff, local staff
and volunteers).
In terms of fatalities of these human resources, there were 21 casualties.
UNOTIL
United Nations
Office in
Timor-Leste
Security Council Resolution 1599 of 28 April 2005 established UNOTIL with a
mandate of one year (until 20 May 2006). It consisted of a special political mission
to accompany and support the development of state institutions in the areas of
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police training, border patrol, military advice, human rights, and democratic
governance.
UNMIT
United Nations
Integrated
Mission in
Timor-Leste
Security Council Resolution 1704 of 25 August 2006 established UNMIT with an
initial term of six months, renewable for equal periods, with a sphere of action in
support of government and institutions relevant to the consolidation of stability,
strengthening the culture of democratic governance and facilitating political
dialogue between Timorese actors in their efforts for national reconciliation and
social cohesion, as well as supporting the 2007 (presidential and parliamentary)
electoral processes.
The authorized force comprised 1,608 police officers, 34 military liaison officers
and civilians. Since 2006, 5,119 police officers, 262 military personnel and around
3,000 civilians and volunteers have taken over the mission.
There were a total of 17 casualties (9 police officers, 4 local civilians and 4
international civilians).
Source: Authors’ own based on the aforementioned Resolutions.
The efforts made by the UN and summarized here constitute, in our view, a very
important factor not only for the pacification of East Timor, but also for its development
and gradual but nevertheless increasing prosperity. Different reports and international
rankings prove the improvement of living conditions, as well as an increase of freedom.
The Global Peace Index places East Timor at the 53rd place (out of 163) in 2018.
According to the Freedom House's assessment of the “state of freedom” in each country,
East Timor has improved its position from “partially free” to “free” last year, which seems
to us a very positive development.
Conclusion
The presence of the UN in East Timor was a set of essential elements to lead the country
to a peaceful environment, namely commitment and monitoring of situations. This small
country that was asserting itself in the international community was testament to the
success of the United Nations, which contributed substantially to the rehabilitation of
public infrastructure, the restoration of social harmony, administrative and community
structures, and the establishment of democratic governance. In addition, the Timorese
case virtually integrates all types of operations of the Agenda for Peace, inasmuch as the
intervention started with peace enforcement, under Chapter 7, with INTERFET; it was
followed by a multidimensional peacekeeping/peacebuilding operation
7
; and culminated
in the country's own appropriation of competences for its normal and expected
development. Indeed, there has been a transformation of the conflict, typical of peace
operations, into a structured product of various interventions undertaken by official and
unofficial actors working at all levels of society - and with society. During the UN missions,
the integrated military component made a decisive contribution to global stability and a
secure environment within the territory, particularly in border areas. However, in addition
to the indispensable presence of the military, which ensures the security environment
7
Peacebuilding, either post-violence, post-settlement (comprehensive settlement) or as an effort to prevent
reemergence from conflict, depends on the ability to transform the conflicting situation of potential/current
mass violence into a peaceful and cooperative relationship capable of promoting reconciliation and
reconstruction and sustainable development over time. Peacekeeping is a conflict management tool to
contain violence, while peacebuilding is the means to establish viable and inclusive democratic governance
in a post-conflict society, usually through free and fair elections, independent legislative and judicial
functions, responsible transparency and governance, access to political and economic opportunities, and
equitable sharing of wealth.
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and is fundamental to the development and well-being of the population, the post-conflict
peace building operations enabled thinking and finding broader (and more effective)
responses to the challenges that the new conflicts pose not just for a community but for
an entire region. It will therefore be in the ability of the UN to adjust to the changing
conflicts in a globalized world, and in its courage to continue and extend its missions,
that the key to win peace again and day after day, lies.
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OBSERVARE
Universidade Autónoma de Lisboa
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OPPORTUNITIES FOR CONFLICT PREVENTION. LESSONS FROM THE ECONOMIC
COMMUNITY OF WEST AFRICAN STATES (ECOWAS)
Jara Cuadrado
jaracb.4488@gmail.com
PhD in International Security (Universidad Nacional de Educación a Distancia). Postdoctoral
Researcher at Instituto Universitario General Gutiérrez Mellado (Spain). She is integrated
Researcher at OBSERVARE, Observatory of Foreign Relations, Universidade Autónoma de Lisboa.
Abstract
Conflict prevention has become an important doctrine within conflict management policies in
international and regional organizations, especially since the end of the Cold War. There has
been an evolution in the last three decades in the context of peace and security that has made
conflict prevention gains relevance. In the current context, with the arrival of António Guterres
to the Secretary General of the United Nations (UN), conflict prevention doctrine could be
encouraged, since he has pointed out that it should be the priority of the organization.
Conflict prevention offers several advantages to face crisis contexts, since it works on avoiding
violence situations escalating towards armed conflicts and helping to control the spread of
security threats. By using preventive measures, the structural causes of conflicts can be dealt
with in the most durable and efficient manner since the final goal of preventive actions is to
transform actually or potentially violent conflict into non-violent processes of social and
political change.
While conflict prevention has gained greater importance, another trend has been promoted;
security regionalization. Since the mid-nineties, there has been a transition in international
peacekeeping missions, aimed to warrant peace and security all over the world that has
focused on regional actors. This practice has been particularly welcomed in Africa.
Both trends –conflict prevention and security regionalization– will be the object of study in
this article, using as a practical scenario the region of West Africa. It is a geographic area
where a series of cross-border threats are concentrated, hence becoming a zone of
international concern. Moreover, the experience on conflict prevention of the regional
organization, the Economic Community of West African States (ECOWAS) is interesting.
Indeed, ECOWAS has carried out a significant activity regarding preventive diplomacy and
mediation in conflicts.
Thus, the objectives of this research are: (1) to study the evolution of conflict prevention
doctrine; (2) to assess the link between conflict prevention policies and security
regionalization; and (3) to use the case of ECOWAS as an illustration, since the organization
is at the forefront of conflict prevention iniciatives in the African continent.
Keywords
Conflict prevention, diplomacy, regionalization of security, West Africa, ECOWAS.
How to cite this article
Cuadrado, Jara (2019). "Opportunities for conflict prevention. Lessons from the Economic
Community of West African States (ECOWAS)". JANUS.NET e-journal of International
Relations, Vol. 10, N.º 2, November 2019-April 2020. Consulted [online] on the date of the
last visit, https://doi.org/10.26619/1647-7251.10.2.2
Article received on November 29, 2018 and accepted for publication on May 2, 2019
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Opportunities for conflict prevention.
Lessons from the Economic Community of West African States (ECOWAS)
Jara Cuadrado
OPPORTUNITIES FOR CONFLICT PREVENTION. LESSONS FROM THE ECONOMIC
COMMUNITY OF WEST AFRICAN STATES (ECOWAS)
Jara Cuadrado
1. Introduction
The dynamics of the armed conflicts that have taken place since the decade of the
nineties have forced the development of different measures capable of addressing the
challenges that arise in the international scenario. Thus, the advances made in conflict
management respond to the changes in the normative and conceptual framework,
marked by the need to solve a series of increasingly complex contexts.
In this sense, policies aiming at prevention are an indispensable tool for the management
of armed conflicts, since they can help to control the spread of security threats. This set
of measures works on preventing situations of violence and insecurity that can lead to
an armed conflict as well as transforming those situations in which there are factors that
threaten the safety of people and turning them into peaceful and stable processes (Garca
Izquierdo, 2002).
Despite the advantages offered by this type of measures, as it is the “most pragmatic
and cost-effective option” (United Nations, 2015, p.4), it has not received much
attention, overshadowed by others measures that focus on more direct actions, such as
peacekeeping missions. However, this doctrine could acquire more interest in the future
from the UN, especially since the arrival of the new Secretary General, António Guterres,
on 1 January 2017, who proposes to return to the origins of the organization, which was
founded with the objective of taking “effective collective measures for the prevention and
removal of threats to the peace” (Charter of the United Nations, 1945, article 1).
In this context, the article tries to emphasize, firstly, the need to assess prevention as
one of the priorities in the field of security and peace, since it offers important advantages
for the management of situations of violence and conflict. Secondly, it also aims to
highlight an aspect considered essential for the progress of prevention policies: the
promotion of the regionalization of security. In the nineties, with the end of the Cold War,
theories about regional security began to emerge, since new actors appeared in the
international scene that presented a “challenge to international relations (IR) theory” and
that “revolves around the autonomy of a regional level of analysis between the state and
the globe” (Kelly, 2007, p.197).
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Opportunities for conflict prevention.
Lessons from the Economic Community of West African States (ECOWAS)
Jara Cuadrado
Thus, this article tries to answer the question of wether regional actors can play a
fundamental role in the prevention of conflicts within their regional security complexes
(Buzan, Wæver & Wilde, 1998) and how they do it. For this purpose, the case of ECOWAS
is analysed, as a regional organization with experience in conflict prevention.
The paper is structured in four sections. Firstly, it defines the concept of conflict
prevention and examines its evolution in the last three decades. Secondly, the
phenomenon of security regionalization is studied, with special attention to the African
continent. Thirdly, the article will focus on the case of ECOWAS and its experience in
conflict prevention. Finally, some of the conclusions of the research on conflict prevention
are presented.
2. The (re)emergence of a culture of prevention?
What is conflict prevention?
In this article, the concept of conflict prevention is understood as the set of measures
that are destined to: avoid the triggering of violence; avoid an active conflict worsens;
and that works over contexts before tensions arise. It pursues, as the ultimate goal, the
transformation of “real or potentially violent conflicts into peaceful processes of political
and social change” (Ramsbotham, Miall & Woodhouse, 2011, p.113).
Although conflict prevention is especially applied at the beginning of the conflict, when
tensions and disputes are escalating into violent conflict (graphic 1), it must be present
throughout the crisis. The efforts should be focus not only on trying to contain or stop a
situation of armed violence, but also on resolving the factors that lead to that situation.
Graph 1. Phases of conflict in the Lund conflict curve
Source: Lund (1993, p.38).
Preventive policies are developed from different areas (from the community, from the
local level, from national governments or from international spheres), so there is a wide
range of possibilities to used them. From tools such as preventive diplomacy, good offices
and mediation as preventive instruments in situations of war, it has been an evolution
into another type of more complete actions, adapted to the complexity of the current
contexts.
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Lessons from the Economic Community of West African States (ECOWAS)
Jara Cuadrado
This is how they were classified
1
in the Final Report of the Carnegie Commission on
Preventing Deadly Conflicts, entitled Preventing Deadly Conflict (Carnegie Corporation of
New York, 1997) –a document of reference–, which distinguished between:
- Operational measures, which are launched in the face of an impending crisis. They
act against risk factors and are direct and short-term measures.
- Structural measures, which address the sources of conflicts, the underlying causes,
and involve broad and long-term change processes. These are measures for
economic, social and political stability.
This is the categorization used by most studies, but the concept of conflict prevention as
well as its scope of action have generated an intense and interesting debate ‒which is
not the object of study of this article‒, giving rise to different interpretations on what is
and is not the prevention of conflicts (Menkhaus, 2004; Lund, 2009, p.289; Igaripé
Institute, 2018).
Preventive measures, both operational and structural, represent an interesting field of
action in the management of troubled contexts and they can be employed simultaneously
throughout the conflict cycle. This is the case of preventive diplomacy, which took up an
important place in the UN’s agenda in the nineties. This concept is living a resurgence in
the present, (United Nations, 2017a). Preventive diplomacy is very useful at the first
stage of the conflict cycle, since it works before violence erupts through good offices and
negotiations, when a third party assists to parties in conflict to solve their problems. In
these cases, the role played by highly respected personalities in the international political
sphere is key. For instance, one of the main organs within ECOWAS peace and security
architecture is the Council of the Wise, made up of eminent personalities who act as
mediators (El Abdellaoui, 2009). Preventive diplomacy has been a very common practice
in conflictual electoral contexts –with more or less success–; such as in some cases in
West Africa, such as Côte d’Ivoire (2011), Senegal (2012), Nigeria (2015) or Gambia
(2017). Preventive diplomacy has also been used after coups d’États, like in Mali 2012.
As a kind of coercitive diplomatic measure, economic sanctions –authorized by the Article
41 of the UN Charter– are used when tensions have arisen and there is an overt crisis.
They are used when mediation do not work and before considering a military intervention.
They have been used at different types of conflicts, from Liberia, to Sierra Leone, Côte
d’Ivoire, Guinea-Bissau or Mali.
When conflict is imminent, preventive deployment becomes a useful tool as a dissuasive
measure. There has been much discussion regarding the maintenance of a rapid-
deployment peacekeeping force in different international and regional organizations
(Darkwa, 2017; Lotze, 2015; Rappa, 2017). In West Africa there is the ECOWAS Standby
Force that it is part of the African Union Standby Force (ASF), which is “a multi-
disciplinary, continental peacekeeping force comprised of military, police and civilian
components, which are on standby in their regions of origin and available to the African
Union for deployment in times of crisis” (Institute for Security Studies, 2015). This option
was used in Gambia, for example, through the deployment of the Economic Community
1
This classification is then adopted by other institutions like the UN, the European Union (EU) or the African
Union (AU).
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of West African States Military Intervention in Gambia (ECOMIG) to enforce the election
results in 2017, with a positive impact (Hartmann, 2017).
This type of measures, applied before the armed conflict breaks out, are operational and
direct; however, it is even more important to develop structural measures at the first
signs of tensions as well as throughout the entire cycle of the conflict. Actions focus on
the underlying factors of tensions are critical in contexts of political violence. These are
measures aimed at economic, political and social stability, whose development entails
longer-term plans than operational measures, and they focus on aspects like governance,
development and human rights (De Carvalho, 2017). However, in this article the focus is
on the operational measures.
Evolution and future
Until recently, preventive policies have been relegated to a second place on the agendas
of international and regional organizations, where attention has been directed
predominantly towards the contexts of active civil wars as well as to the activities of post-
conflict reconstruction.
However, since the end of the Cold War, conflict prevention has begun gaining a greater
role in the conflict management policies of international and regional organizations
(Cuadrado, 2018; Ramsbotham, Miall & Woodhouse, 2011), as evidenced by the more
often reference to it in the official documents
2
. Thus, regional organizations ‒such as
ECOWAS‒ have made conflict prevention one of their priorities.
Studies on the prevention of armed conflicts have proliferated in the last three decades,
marked by the failure of the UN in the nineties to anticipate and respond effectively to
contexts such as Somalia, Bosnia or Rwanda (United Nations, 2014a). These
humanitarian catastrophes showed the importance of prevention and the need to
overcome a culture of reaction, where actions take place after the violence has broken
out, which has featured the history of the UN (Dorn & Matloff, 2000).
Since the former Secretary-General of the UN, Kofi Annan, adopted the concept of
‘culture of prevention’ in his report entitled Prevention of Armed Conflict, of June 2001,
where he already talked about passing ‘culture of reaction’ and advancing to a ‘culture
of prevention’, there has been an evolution. Conflict prevention has lived different stages,
ups and downs.
Currently, it can be said that there is a new enthusiasm for prevention. In the agenda of
the present Secretary General, António Guterres, prevention occupies a high priority
(Leone, 2017). As the Secretary General has reflected, “the world spends much more
energy and resources managing crises than preventing them. Thus the UN must uphold
a strategic commitment to a ‘culture of prevention’” (United Nations, 2016, p.3).
2
For example, the Report of the Secretary General entitled Armed Conflict Prevention of 2001, where a
classification of the type of preventive measures is made, Security Council Resolution 1366 of August 30, 2001
on the role of the Council in the prevention of armed conflicts, the Report of the General Assembly (A / RES /
57/337) of July 18, 2003 on the prevention of armed conflicts, or the Secretary-General's Report on the
implementation of the Security Council resolution 1625 (2005) on the prevention of conflicts, in particular in
Africa, of 2008.
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Lessons from the Economic Community of West African States (ECOWAS)
Jara Cuadrado
In spite of this new enthusiasm that seems to exist within the UN for the prevention of
conflicts, there are important barriers that can hinder its success and that must be
overcome in the future. The reality is that “the Security Council's agenda is already
overburdened by managing ongoing conflicts [which] makes […] difficult […] to devote
time to crises bubbling below the surface” (Roberts, 2017).
Traditionally, the attention has been put on the management of immediate crises and
large-scale conflicts (United Nations, 2018). The efforts that active conflicts require in all
senses decreases the possibilities of focusing on prevention, even though these efforts
could be reduced if they were “able to focus on prevention” (Roberts, 2017).
The tipycal dynamics of international power relations can also influence the success or
failure of prevention. Thus, for example, it is important to take into account the
reluctance of some countries concerning the limits of sovereignty or that the Council
Security's “interest in acting in a preventive capacity [is] already limited in cases when
a powerful member was involved in a looming conflict” (Roberts, 2017). Other aspects
have to do with “the difficulty in […] demonstrating that a given action resulted in conflict
not taking place” (United Nations, 2018, p.1).
Thus, as Stephanie Sugars (2017) points out, so that the enthusiasm that Guterres is
demonstrating translates into success, it is necessary “a fundamental break with the UN's
current approach, not to mention sizeable reforms to address the body's its sluggish
response time to conflicts [or] its burgeoning bureaucracy”.
Added to this, it is the lack of political will to deploy measures that respond early to
alerts. Several authors (Stanton, 2005; Wulf & Debiel, 2009; Evans, 2016) have indicated
that political will is the key, either for the time to develop an accurate analysis, for not
being aware of the type of skills needed to handle the problem, or for the lack of interest
in specific topics or regions.
These obstacles, which make it difficult to carry out measures with a preventive effect,
could be overcome or reduced, to some extent, if the prevention of conflicts is further
promoted by regional organizations.
3. Regionalization as an opportunity: taking advantage of local actors to
promote prevention
The regionalization of security, a trend that has gained importance in the last three
decades (Berman, 2002; Francis, 2006; Moller, 2009), could help to encourage conflict
prevention. It is increasingly common for regional bodies, as ECOWAS, to assume the
management of their peace and security problems, through the development of new
policies and mechanisms (Tavares, 2009). The region of West Africa encompasses a
series of security threats that can have a destabilization effect throughout the region ‒
as it occurs with terrorism and organized crime, or with climate change and violence
related to resource scarcity. This produces a security interdependence, since national
security concerns of West African states are very similar and are so close that they can
not be addressed indpendently (Persson, 2012). Thus, regional problems are managed
from a regional co-operation (Buzan, Waever & Wilder, 2003) under the ECOWAS
architecture.
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The involvement of regional organizations in security issues has significant advantages,
such as a better knowledge of the context and of the causes of conflict. They are actors
who know the terrain better so they understand the situation from another perspective
and have a direct interest in the repercussions and solutions of the conflict. Moreover,
“regional political actors [...] have both greater legitimacy and a much greater political
stake in taking a diplomatic lead” (Gowan, 2017, p.6).
Consequently, regional and local actors, with the support of the international community,
play a leading role in conflict prevention. As Guterres has outlined, regional organizations
are essential actors in conflict prevention and resolution, in peace operations and
promotion of development and human rights (United Nations, 2016, p.4).
However, this option is not always the best. One of the problem is the competition
between some regional actors that can affect prevention success. For instance, the
traditional rivalry of Nigeria and South Africa “have prevented consensus within the AU
on key preventive diplomacy efforts” (Hara, 2011). The leadership role developed by
Nigeria has awakened mistrust in other ECOWAS members at different conflictual
situations, like the civil wars of Liberia and Sierra Leone (Adebajo, 2002), which has
made difficult to come to an agreement within the regional organization.
Furthermore, personal ties between political leaders determinate the position that
governments adopt in the face of a crisis, therefore there is not impartiality. This has
occured in several ocassions within ECOWAS. While overwhelming measures were taken
after the coups d’État in Guinea in 2008 or in the Gambian context in 2017, a weaker
attitude has been shown during the recent crisis in Togo (RFI Afrique, 2017)
3
. Different
reactions are explained by the individual interests of each Member State, which have
diverse strategic views that hinder a common decision-making and effective responses.
Thus, this clash of interests can be detrimental to the advance of the empowerment of
regional organizations in sensitive issues like security.
Moreover, regional actors like ECOWAS have shortage of material, financial and human
resources, showing a dependence on external actors that limits the success of security
regionalization. In this sense, the African continent is one of the priorities for the UN. The
organization is aware of the need to cooperate with Africa’s regional organizations for the
promotion of preventive measures; this cooperation is essential to overcome the lack of
resources. Accordingly, the UN “reaffirms its intention to consider further steps to
promote closer and more operational cooperation between the United Nations and
regional and subregional organizations in the fields of early warning, conflict prevention,
peacekeeping and peacebuilding” (United Nations, 2014b). In 2002 the Ad hoc Working
Group on Conflict Prevention and Resolution in Africa was created (United Nations, 2002).
More recently, it was established a Cluster on Conflict Prevention and Crisis Management
by the UN Office for the African Union (UNOAU), which is a strategic partnership in conflict
prevention and mediation, working “throughout all phases of the conflict cycle”, between
the UN and the AU (United Nations Office to the African Union, n.d.).
Cooperation between different actors in the field of peace and security has been a trend
that has evolved and grown. That implies sometines an “institutional overlap of actors”
which “operate and intervene in the same geographical area […] in the same crisis at the
same time or replacing each other” (Sousa, 2017, p.572). Thus, a lack of alignment is
3
These cases will be addresseed in a later section.
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frequent as well as a tendency for divergence, contradictions and duplicity of efforts and
resources. Africa has been setting of disputes between the UN, the AU, and the regional
organizations (Nathan, 2017, p.151).
Operations launched by regional organizations need authorization by the Security Council
prior to deployment (UN Charter, Chapter VIII, Art. 53), causing in many ocassions
“disagreements […] at various levels of decision-making” between the UN and the AU
(Desmidt & Hauck, 2017, p.15), but also with ECOWAS, which does “not explicitly
acknowledge the supremacy of the UNSC [the United Nations Security Council] if it comes
to peace and security” (Jetschke & Schlipphak, 2019, p.4). As Williams has highlighted
(2017, p.129), it is necessary that “the UN develops appropriate support mechanisms”
for regional organizations in Africa, especially because of the lack of “predictable,
sustainable, and flexible funding” they have (Williams, 2017, p.129).
At the same time, divergence appears between the AU and the regional organizations,
like ECOWAS, where a “lack of clarity on subsidiarity and division of labor […] often lead
to ad-hoc and pragmatic solutions” (Desmidt, 2019, p.2), affecting the deployment of
preventive measures. From the AU, the concept of primacy is standed up (Desmidt, 2019,
p.4), however, the principle of subsidiarity “states that responses to conflict should be
formulated by organizations with closest proximity” (Desmidt, 2019, p.12); thus, as
Nathan (2017, p.157) has highlighted, policy documents “are ambiguous or
contradictory” when tackling crisis management.
On the whole, although security regionalization offers a great opportunity to encourage
conflict prevention policies, there is still a dependence on external actors. This has caused
an overlap and confusion between all stakeholders that intervene in a crisis, difficulting
the capacity of action to intervene or act preventively.
4. The experience of ECOWAS in conflict prevention
The West African region is a great example to analyse these issues, since it has
experienced an interesting process of security regionalization and has also lived
interventions from different actors.
This region has attracted a great interest and concern, due to the number of conflicts
that have been in the area. For this reason, in 2000, a regional conflict resolution office
was established in Senegal, currently the United Nations Office for West Africa and the
Sahel (UNOWAS
4
), whose objectives are to develop regional diplomacy to manage
political instability within the region (Gowan, 2017, p.9). UNOWAS has developed
activities coordinated with ECOWAS, specially in the field of conflict prevention. This
collaborative work had had great results in the cases of Guinea or Burkina Faso, for
example.
The area of West Africa has also been selected because interesting lessons can be
obtained from the activities related to conflict prevention of its regional organization.
Undoubtedly, the model developed by ECOWAS is the most interesting example in the
continent (Wulf & Debiel, 2009).
4
Before known as the United Nations Office for West Africa (UNOWA).
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At the end of 1990, the organization adopted the Protocol Relating to the Mechanism for
Conflict Prevention, Management, Resolution, Peacekeeping and Security (The
Mechanism), agreed on the Lome Summit on 10 December 1999, which is “the most
important legal and normative instrument for ECOWAS in all matters relating to peace
and security” (ECOWAS, 2018, p.16).
This legal instrument demonstrates that the prevention of conflicts acquires a great
importance for the organization, since among the objectives of the Mechanism are the
prevention of: internal and inter-State conflicts; serious and massive violations of human
rights; or an overthrow or attempted overthrow of a democratically elected government.
A next step was the approval of the Protocol on Democracy and Good Governance
adopted on 21 December 2001 and signed in Dakar, with the goal of incorporating
provisions regarding topics such as prevention of internal crises (United Nations, n.d.).
The most recent agreement on preventive policies has been the ECOWAS Conflict
Prevention Framework (ECPF), adopted by the Mediation and Security Council (the
central organ of the Mechanism) on January 16 2008, in Ouagadougou. The ECPF sought
to be the definitive impulse for the prevention of conflicts, acting as an strategic
framework for conflict prevention and human security and looking for a more pro-active
and operational conflict prevention posture from Member States (ECOWAS, 2008, p.12).
Finally, as a result of the agreements reached after the launch of the ECPF, in 2015 the
ECOWAS Mediation Facilitation Division (MFD) was established under the Directorate of
Political Affairs, with the aim of promoting preventive diplomacy in the region (ECOWAS,
2018).
This legal framework places ECOWAS as one of the most advanced regional organizations
of Africa in conflict prevention. However, more than a decade after the ECPF was adopted,
there are important constraints that limit its potential on the ground. The ECPF is an
structure that is still in the course of being implemented and needs a long process of
operationalization. One of the main challenges is the lack of funding, which depends on
Member States (“Peace building experts, others, urge ECOWAS to animate the
implementation of its Conflict Prevention Framework”, 2019). The limited human and
financial resources affect the development of the framework and makes the regional
organization has to select in what contexts or in what situations intervene. Thus, in a
region where there are significant challenges to peace and security, the lack of resources
makes some risk factors do not get enough attention and that the actions focus on the
most immediate threats (Yabi, 2010, p.55).
Together with resources constraints, there are other obstacles that conditionate the
implementation of conflict prevention in the region, which will be analyse in the next
section.
Prevention on the ground
Under this normative framework that has evolved and adapted to the changes and needs
of the region's security scenario, ECOWAS has developed an important activity in
preventive diplomacy and mediation in different contexts. With the objective of
illustrating the conflict prevention policies of ECOWAS, somes cases of study have been
selected (Table 1), analysing factors like the different contexts in which preventive
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measures were developed, the actors who participated together with ECOWAS or the
type of actions that those actors carried out.
Table 1. Case studies of ECOWAS conflict prevention measures
Cases
5
Type of conflict
Preventive measures
Liberia (1989)
Escalation to civil war
Diplomatic and mediation
efforts
Military intervention
Guinea (2008)
Coup d’État
Institutional incentives
Imposition of sanctions
Suspension of Guinea as a
member of ECOWAS
Côte d’Ivoire (2010)
Electoral violence
Suspension of Côte d’Ivoire
as a member of ECOWAS
Imposition of sanctions
Sent of diplomatic
delegations
Threat of use of force
Burkina Faso (2014)
Public demostrations
Imposition of sanctions
Arms embargo
Early warning mission
The Gambia (2016)
Electoral violence
Diplomatic and mediation
efforts
Preventive deployment
Togo (2017)
Public demonstrations
Mediation efforts
Monitoring activities
Source: author’s elaboration
Due to the theoretical framework that has been established to analyze the evolution of
conflict prevention doctrine in this article begins with the end of the Cold War, the first
selected case of analysis is Liberia (1989). It is, moreover, the first civil war in the region
that test the ECOWAS crisis management capacities.
The first Liberian civil war began when rebels led by Charles Taylor crossed the border
from Côte d’Ivoire to fight against Samuel Doe's government. At that time, the legal
instruments
6
used by ECOWAS did not contemplate the prevention of internal conflicts,
but rather between States. Some of the first steps made by the regional organization
were focus on diplomatic attempts, creating the Standing Committee on Mediation in May
1990 (Suifon, n.d., p.3). However, those efforts failed and ECOWAS decided to act
because the crisis was considered a regional problem (Human Rights Watch, 1993).
Despite the fact that ECOWAS intervention occured once the war has broken out –that is
why the intervention was considered “largely reactive” (ECOWAS, 2018, p.35)– it was
the only actor who adopted an active attitude in the conflict and, as some authors have
pointed out, the military intervention was successful “at lease for a short period,
preventing the situation from degenerating into genocidal proportions” like that of
5
The dates that are included in parentheses reflect the year in which the violence begins.
6
At that time only existed the Protocol on Non-Aggression of 1978 and the Protocol on Mutual Assistance on
Defense of 1981.
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Rwanda (Draman & Carment, 2003, p.17).
Another example is the crisis opened in Guinea with the Lansana Conté’s succession.
After his death, in December 2008, Captain Moussa Dadis Camara and fellow military
officers led a coup d’État. The situation started worsening when he decided to present
himself to next presidential election, an announcement that provoked strong protests in
September 2009 that culminated with the massacre occured at the National Stadium of
Conakry, committed by soldiers under the command of the military junta (Human Rights
Watch, 2009). The government received “pressure and incentives [by ECOWAS] to allow
elections to take place and to enable an international investigation into the massacre
(Day & Pichler Fong, 2017, p.8).
Both ECOWAS and the AU used coercitive tools, such as the imposition of sanctions and
the suspension of Guinea as member of the regional organization. Moreover, there was
an important external pressure and preventive measures like threats of prosecution by
the International Criminal Court were used (Day & Pichler Fong, 2017, p.7). This had an
effective effect on some fellows of Camara, who suffered an assassination attempt that
forced his leave, facilitating the transition to civilian rule.
The UN also took a preventive attitude in this crisis through its regional office, UNOWAS
(then the United Nations Office for West Africa –UNOWA), and the Regional Coordinator,
who developed “intensive preventive diplomacy efforts” (Von Einsiedel et al., 2018,
p.15), acting as mediator with different stakeholders. Moreover, UNOWA provided
logistical and technical support to ECOWAS, that had the real leadership as mediator,
and more particularly, one of its Member States, Burkina Faso, whose president
convinced the transitional goverment to organize elections. Thus, “the engagement of
ECOWAS […] was largely considered a successful effort to avert further violence or
escalation to civil war” (Hara, 2011).
Another interesting experience for the regional organization was the civil war that arises
in Côte d'Ivoire after the 2010’s presidential elections. While the Electoral Commission,
as well as the international community, declared Alassane Ouattara the winner, Laurent
Gbagbo refused to accept the result as the Constitutional Council announced that he was
the real victor because he had obtained a larger percentage than his rival (Cook, 2011).
Given this scenario, ECOWAS asked the parties to respect the results and to celebrate an
extraordinary meeting, although they clearly showed their support for Ouattara.
Some of the first steps taken by the regional organization were the suspension of Côte
d'Ivoire as a member at the beginning of December, in addition to the UA, forcing Gbagbo
to accept the results (Cook, 2011) and the imposition of sanctions, following article 45
of the Protocol on Democracy and Good Governance. Both organizations sent diplomatic
delegations, such as the one led by the former president of South Africa, Thabo Mbeki,
who traveled to the country to make a generic call for peace and democracy, but without
issuing an important statement (Al Jazeera, 2010).
In the absence of action of the UN ‒that received a lot of criticism from different
organizations for its indifference‒ ECOWAS decided to take action. At the end of
December 2010, ECOWAS gave an ultimatum to Gbagbo, using the threat of the use of
force, that was ignored it, for which the organization found itself without options, and
had to contemplate other measures, including the use of force (Cook, 2011). On
December 31, a Nigerian defense spokesman announced that ECOWAS military chiefs
from several member countries had “prepared plans to ‘forcefully take over power’ from
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Gbagbo using a grouping of troops called the ECOWAS standby force […] if diplomatic
efforts to pressure him to cede the presidency fail” (Cook, 2011, p.39). However, military
intervention was finally conducted “by French, UN and pro-Ouattara ‘Republican’ forces”
(Yabi, 2012, p.3).
Despite the slowness with which preventive measures were carried out and despite the
external dependence to act, as some studies point out, it is interesting to highlight that
the second civil war in the Côte d’Ivoire would be one of the clearest examples in which
ECOWAS made use of preventive diplomacy (Kwabena, 2015).
The following example is found in Burkina Faso, which in 2014 experienced a stage of
public opposition due to President’s intentions to extend his term limit. This provoked
mass demonstrations that led to the resignation of then-President Blaise Compaoré
(Taoko, Cowell & Callimachi, 2014). Subsequently there was an attempted coup d'État
against the transition authorities.
There were important preventive measures, such as the imposition of sanctions asked
by ECOWAS to the AU (“UNOWA head Mohammed Ibn Chambas to brief on Burkina Faso”,
2015), who also “decided to suspend the participation of Burkina Faso from all AU
activities” (Desmidt, 2019, p.12). As some studies have pointed out (Day & Pichler Fong,
2017, p.7), these pressures were one of the key factors for “averting further chaos and
a high risk of violence”. ECOWAS decided to impose an arms embargo in September
(“ECOWAS arms embargo on Guinea”, n.d.).
Moreover, civil society organizations played an important preventive role in the crisis,
since they organized several workshops throughout the previous year of the elections on
monitoring and preventing violence, in which politicians and media were involved.
Despite these preventive measures, Compaoré refused to leave the power, and ECOWAS
decided to intervene together with UNOWA and deployed a joint early warning mission
with the aim of promoting a national dialogue between national political actors and civil
society. However, the president kept strong while tensions continued rising. This
provoked a new intervention of both actors to which the AU decided to join.
Finally, joint efforts resulted in “a new Constitution and a one-year civilian-led transition
that would culminate with general elections in November 2015” (United Nations, 2018,
p.6). The support of ECOWAS and its mediation efforts during the transition period were
key for the successful of the national dialogue. Equally important was the collaborations
with UNOWA, that gave its support to the regional organization, and with the AU, since
in spite of initial disagreements, in the end there was a collaborative work.
The same circumstances occured in The Gambia at the end of 2016, when President
Yahya Jammeh refused to accept his defeat in the December elections. This provoked a
climate of tension in the country that led ECOWAS to get involved, initiating diplomatic
and mediation work with President Jammeh to accept the results of the elections
(ECOWAS, 2017). There were several occasions in which the leaders of the region met
with both Jammeh and the elected president, Adama Barrow (Alfa Shaban, 2017).
Before considering a preventive deployment, ECOWAS’ Members developed mediation
efforts through high-level delegation visits in December 2016 (Desmidt, 2019, p.7).
Finally, ECOWAS decided to intervene on January 19 2017 according with the Article 25
of the ECOWAS Mechanism and with the support of the UN and the AU (Day & Pichler
Fong, 2017). The deployment of the ECOMIG would be applauded by the international
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community (Alfa Shaban, 2017). The good coordination between the UN and ECOWAS
was reflected by the role played by UNOWAS, that held “meetings with representatives
of the government, opposition parties, civil society and women and youth organizations”
(“Peaceful and credible elections: A case of UNOWAS’ holistic coordination”, 2017, p.7).
The Gambia has been an example of the success of ECOWAS preventive policies and
could be highlighted as a paradigm for future crises in the region; this preventive
deployment has served to prevent a post-electoral context of tension leading to an
escalation of violence.
Anti-government protests were also echoed in another country of the region, Togo, where
at the end of August 2017 a wave of demonstrations demanding constitutional reforms
and the resignation of the President Faure Gnassingbé Eyadéma
7
broken out, which were
harshly repressed (RFI Afrique, 2017). The regional organization called then for peace
“upon all political stakeholders and the people of Togo to exercise restraint and refrain
from violence, and dialogue in order to preserve peace” (RFI Afrique, 2017).
ECOWAS’ countries intervened, beginning a dialogue process between the ruling party
and the opposition that was initiated with the Presidents of Ghana and Guinea as the lead
mediators (United Nations, 2017b). Within ECOWAS, there was satisfaction for the
preventive efforts made by these two leaders (“ECOWAS hails Akufo-Addo, Alpha Condé
over Togo intervention”, 2018). The regional organization set the celebration of
parliamentary elections on December 2018. For that purpose, the “organization urged
the Togolese government to proceed with the complete revision of the electoral roll prior
to these legislative” (Gbenyedji, 2018). Parliamentary elections were finally celebrated
on December 20, with a victory of the ruling party, who ignored the recommendations
from the regional organization.
5. Conclusiones
These contexts of political and social instability are some examples in which the
preventive tools of ECOWAS and its coordination with other actors have been tested as
well as they have served to improve the management of its security challenges. Through
the study of these cases, it has been possible to see some of the tools the organization
can use to prevent conflicts, such as preventive diplomacy –through mediation and
dialogue between the parties–, the imposition of sanctions, the suspension from
membership of a Member State, or the threat of the use of force as a deterrent. The
analysis of these experiences showed that ECOWAS has had an important activity on
conflict prevention.
But these experiences have also revealed the main challenges that the organization face
in terms of prevention. Crises such as the one currently taking place in Togo or past
cases like Côte d’Ivoire have revealed the vulnerabilities of its policies.
Some of the main obstacles detected in the ECOWAS conflict prevention policies can be
summarised as follows. Firstly, there is a group of factors related to aspects like the fight
for political power, the personal relationships, or typical dynamics of power structures.
Within this group is the divergence of stakeholder’s interests. As it has been observed,
the agents involved in those scenarios maintained different attitudes to the crises. This
7
His family is the longest in a West African government.
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lack of agreement or understanding among crucial actors explains the slowness with
which the measures were applied once the early warnings were identified.
The clash of interest between ECOWAS Member States was present during the First
Liberian War. Nigeria wanted to play a leadership role while the government of Burkina
Faso had personal interest in the crisis due to his ties with Liberian dissidents (Murison,
2004, 603), which affected the decision-making.
There have also been clashes of interests between the regional organization and the
continental organization, the AU, which had repercussions on the ground, turning the
decision-making about the management of crises difficult. During the previous context
of the Liberian civil war, for example, the countries of the Organization of African Unity
(OAU), predecessor of the AU, showed a different position than the one that ECOWAS
had. The OAU was opposed to a military intervention in Liberia, especially those countries
that supported Charles Taylor, the rebel leader (Wippman, 1993, p.165). This lack of a
common action between the two organizations was also present in the Côte d’Ivoire’s
electoral crisis of 2010, since within the AU there were disparity of positions on the
support to the two political leaders, Ouattara and Gbagbo, ECOWAS kept a posture of
unity.
Moreover, partiality was present in some cases. Some of the Member States of ECOWAS
had significant influence in the political context of Côte d’Ivoire, such as the president of
Burkina Faso, Blaise Compaoré, who could have put more pressure on the parties. The
role played by his government was seen as not neutral by other ECOWAS Member States,
since he “has been strongly identified as an ally of Ouattara and accused of being a key
mover behind the initial insurgency in [Côte d’Ivoire] in September 2002” (The Guardian,
2011). This lack of impartiality existed also in Togo. One of the main obstacles for the
dialogue experts saw (RFI Afrique, 2017) was that the presdient of Togo had been
chairman of ECOWAS for one-year, until June 2018. This is an important factor to
consider, since the regional organization was not revealing a neutral position to this crisis
and there was a certain lack of political will to act. As some organizations have described,
there was abuse of power and dictatorial measures during the electoral contexts (Bailey,
2019), but both ECOWAS and the AU have call the elections as “free and transparent”
(“Togo President's Party Wins Majority in Parliament”, 2018).
Added to this, it is the lack of political will to deploy measures. A clear example is Guinea,
since despite the successul final result, with a pacific transitional government, it is
necessary to highlight that the crisis and specially the deaths of civilians could have been
prevented if stakeholders, mainly ECOWAS, had reacted more immediately to the coup
d'État. Thus, between the coup d’État and the massacre of September 2009 some other
measures could have been used, such as imposition of sanctions and an arms embargo,
which were launched immediately after the high death of civilians.
In addition, contradictions often occur in the approaches and functions to be performed
when collaborating with the AU. Strong disagreements between both organizations were
presented during the crisis in Burkina Faso. However, there are some examples in which
the cooperation between them had positive impacts on the ground, like in Guinea o The
Gambia (Kreß & Nußberger, 2017).
Secondly, it is neccessary to have in mind a group of factors related to more operational
or logistic aspects that are present in organizations like ECOWAS, like the complex
bureaucracy, which makes decision-making difficult, and prolongs the time that elapses
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from the decision to implement a preventive measure up to the application of that
measure. In addition, this sometimes makes it difficult to design a strategic approach
(Yabi, 2010, p.13), as it occured, for example, in the case of Côte d’Ivoire. At the end of
2010, when the electoral crisis was driving to an escalation of violence, ECOWAS threated
with the use of force, but in January the mission had not been yet launched, so the
suspicion was confirmed that an intervention by force would be difficult to deploy since
it lacked a plan and it would require additional resources (Kwabena, 2015, p.32).
This last aspect is a very important constraint that has been present in all the cases
analysed in this article. The lack of human and financial resources in ECOWAS makes it
has dependency on the external ators to be able to intervene preventively.
Finally, it is important to highlight the need to incorporate the work of civil society
organizations (CSO), as it has been underlined in recent political meetings (“Peace
building experts, others, urge ECOWAS to animate the implementation of its Conflict
Prevention Framework”, 2019). Collaboration between ECOWAS and CSO has proved to
be very useful in contextst such as Burkina Faso (Somé, 2014).
In conclusion, the organization still has a long way to go to become an effective actor,
given the complexity of the challenges it faces, many of which do not only have an
internal character, but also feed on external factors. Currently, it seems that regional
political actors in West Africa have a commitment to implement the organization's
framework of action in conflict prevention (African Media Agency, 2019; “Peace building
experts, others, urge ECOWAS to animate the implementation of its Conflict Prevention
Framework”, 2019). Thanks to the management developed in cases such as The Gambia,
ECOWAS has received the applause from the international community. This regional actor
plays undoubtedly a key role in implementing conflict prevention and among its priorities
it is to continue developing and improving preventive policies (“ECOWAS launches Plans
of Action for its Conflict Prevention Framework”, 2019). The history of this regional
organization offers interesting lessons on the importance that the regionalization of
security has for the African continent, where conflict prevention could become the main
challenge.
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THE INFLUENCE OF CLIMATE CHANGE ON THE ESCALATING COMMUNAL
CONFLICT BETWEEN HERDSMEN AND FARMERS:
THE CASE OF THE FULANI ETHNIC GROUP IN NIGERIA
Gustavo Furini
gustavofurini@gmail.com
Ph.D. student in International Relations: Geopolitics and Geoeconomics at Universidade
Autónoma de Lisboa - UAL (Portugal). Holder of a master degree in Natural Resource
Management and Local Development in the Amazon from UFPA (Brazil) and of a bachelor degree
in Geography from UFRGS (Brazil). Has been working in the area of climate change since 2005,
with experience in the public and private sectors.
Abstract
Current scientific evidence shows that human activities are causing interference at different
levels in the global climate and availability of natural resources, and many authors already
relate water scarcity to the increased risk of violent conflict, particularly in rural societies on
the African continent. Climate disruptions caused by climate change are reflected on a regional
and local scale, and the greatest impacts are already being felt in the poorest areas of the
planet. Nigeria, Africa's most populous country, has been facing environmental problems in
its territory that can be associated with climate change, such as rising temperatures, reduced
rainfall and advancing desertification. Considering that all these phenomena have been
worsening since the early twentieth century in Nigeria and, due to the escalating of violent
conflicts since the beginning of the current century, the objective of this paper is to analyse
how climate change can interfere in the conflict between herdsmen and farmers, as well as
the possible impact of seasonal variation in rainfall on the dynamics of these communal
conflicts. The study focused on literature review and the case study took place in four Nigerian
states (Plateau, Benue, Taraba and Nasarawa) for the period 2010-2017, focusing on the
communal conflict involving the Fulani ethnic group. The approach adopted was the inductive
method in which the behaviour of rainfall in the study area was compared with the number of
deaths resulting from the conflict, in addition to using geo-processing software to understand
the spatial and temporal distribution of casualties. The theoretical framework used was that
proposed by Thomas Homer-Dixon (1994) and the information was collected from primary
sources, with consultation of qualitative and quantitative data, and from secondary sources
through book reviews, publications and papers in scientific journals. While it is not yet possible
to establish a direct and linear relationship between climate change and violent conflict, the
revised literature indicates that competition for water and other natural resources in certain
parts of Nigeria is increasing, and that the violent conflicts between Fulani herdsmen and
farmers are increasing due to the dispute over access to water sources and grazing lands.
Data analysis shows that in the study area there are 46.4% more deaths in the dry season
(November to April) than in the rainy season (May to October). While there are still not enough
elements to conclude that climate change is the primary cause of the conflict, the analysis
reinforces the need, in certain contexts, particularly in developing countries with populations
highly dependent on the primary sector of the economy, for the impacts of climate change to
be seriously considered as a risk to human security.
Keywords
Climate change; Communal conflict; Nigeria; Fulani; Water.
How to cite this article
Furini, Gustavo (2019). "The influence of climate change on the escalating communal conflict
between herdsmen and farmers: the case of the Fulani ethnic group in Nigeria". JANUS.NET
e-journal of International Relations, Vol. 10, N.º 2, November 2019-April 2020. Consulted
[online] on the date of the last visit, https://doi.org/10.26619/1647-7251.10.2.3
Article received on November 29, 2018 and accepted for publication on June 4, 2019
JANUS.NET, e-journal of International Relations
e-ISSN: 1647-7251
Vol. 10, Nº. 2 (November 2019-April 2020), pp. 33-52
The influence of climate change on the escalating communal conflict between herdsmen and farmers:
the case of the Fulani ethnic group in Nigeria
Gustavo Furini
THE INFLUENCE OF CLIMATE CHANGE ON THE ESCALATING COMMUNAL
CONFLICT BETWEEN HERDSMEN AND FARMERS:
THE CASE OF THE FULANI ETHNIC GROUP IN NIGERIA
1
2
Gustavo Furini
Introduction
With the end of the Cold War, the definition of the concept of security came to have a
broader understanding, incorporating new dimensions that surpassed the exclusively
state bias (Tomé, 2012). In addition to military issues, social, economic, and
environmental factors have incorporated the list of elements necessary to ensure world
peace and security since the 1990s (Dannreuther, 2013; Sheehan, 2005; UNSC, 1992).
In this context of broadening the understanding of security, the challenges posed by the
scarcity of natural resources
3
have also been considered (Homer-Dixon, 1994), in view
of the recognition that the tensions generated around access and use of natural resources
have the ability to unleash violent conflicts
4
between different actors and groups,
especially on an intrastate scale (Conca & Wallace, 2012).
The challenges posed by environmental risks
5
stem mainly from society’s misuse of
natural resources, which has led to problems such as depletion of arable land, irreversible
loss of biodiversity, pollution of soil, water and air (Dannreuther, 2013; Sheehan, 2005).
Among the various negative impacts caused to the environment, we highlight climate
change, which according to scientific evidence, results from the constant and growing
emission of greenhouse gases into the atmosphere, especially due to the burning of fossil
fuels (IPCC, 2013). Climate change has the capacity to widen social disparities through
1
The translation of this article was co-funded by Instituto Camões in the framework of the 1st International
Conference on Conflict Resolution and Peace Studies. Text translated by Carolina Peralta.
2
Special issue of articles presented at the 1st International Conference on Conflict Resolution and Peace
Studies that took place at UAL on the 29
th
and 30
th
of November 2018.
3
Natural or environmental resources are stocks of materials that exist in the natural environment, renewable
and non-renewable, which, depending on their use, can be considered common goods or have economic
value (WTO, 2010).
4
The understanding of violent conflict provided by The African Centre for the Constructive Resolution of
Disputes (ACCORD, 2012) is used here, where lethal violence is used by the parties in the conflict to obtain
the disputed resource, such as land or power.
5
The negative effects of climate change are normally taken as security “threats”, however, it was decided to
use the understanding given by SIPRI (2016) which considers that climatic changes are associated to
“risks”, since the climate crisis is a direct consequence of anthropogenic action. In addition, the challenges
posed to mankind due to man-made actions on the environment over the last couple of centuries, as the
case of climate change, fit the understanding of “Risk Society” proposed by Ulrich Beck (2016). According
to the author, the processes of industrialization and modernization of the society have promoted
environment imbalances, and the responses created by the environment seeking for a new momentum of
balance have brought risks for social dynamics in general, including those related to security issues (Beck,
2017).
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The influence of climate change on the escalating communal conflict between herdsmen and farmers:
the case of the Fulani ethnic group in Nigeria
Gustavo Furini
worsening poverty, hunger, forced human mobility and greater difficulty in accessing
natural resources, especially in developing countries, historically responsible for the
lowest greenhouse gas contributions, but in contrast, those that are most vulnerable to
climate change (IPPC, 2014).
Analyses of data collected from the atmosphere, land and ocean confirm that phenomena
arising from climate change are already occurring, to a greater or lesser extent,
throughout the planet, and such changes are associated with a major threat to social and
economic stability of societies (IPCC, 2013). Observations and studies indicate that the
western Sahel band, a region that includes the northern part of Nigeria, has been
experiencing declining rainfall levels with longer drought periods and rising temperatures
over the last decades (Assibong et al., 2017). This water variability has a negative impact
on the availability of resources for people using the land as their livelihood, a scenario
aggravated by the increasing pressure exerted by population growth in Nigeria
6
(Eze,
2018).
The number of researchers examining the possible relationships between climate factors
and non-state conflicts is growing (FOI, 2010), so there is a convergence that, in certain
situations, the variation in water availability in primary sector dependent economies may
influence violent conflicts, particularly in rural and pastoral societies in the African
continent (IPCC, 2013; ACCORD, 2012). Given this, climate change has the ability to
interfere, even indirectly, on the dynamics of violent conflicts, especially intra-state
conflicts, since they can intensify poverty and aggravate economic crises, events that are
already well documented as factors that directly influence the conflicts (IPCC, 2014).
And this is precisely what is happening in the central-eastern and northern regions of
Nigeria, where it is possible to verify a gradual reduction in the availability of certain
natural resources, especially water and arable land, which has been linked to records of
rising temperatures and lower rainfall (Idowu, 2017; Okoli & Atelhe, 2014; CCASTR,
2011). Such diminished access to natural resources is seen as a major cause of the
escalation of non-state conflicts between herdsmen and farmers in central-eastern and
northern parts of the country (Uze, 2018; Freeman, 2017).
In this context, this paper focuses on two objectives: i) initially, we sought to analyse
based on the theory on the subject how the growing scarcity of natural resources,
especially the scarcity of water, which has being aggravated by climate change according
to scientific observation, applies to communal conflicts involving the Fulani ethnicity,
especially in rural areas in the northern and central-eastern parts of Nigeria; and
secondly, ii) it was verified how the seasonal variation in water availability, analysed from
the rainfall index data in the rainy season (May-Oct) and the dry season (Nov-Apr), from
2010 to 2017, relates to the dynamics of communal conflicts involving the Fulani ethnicity
in four Nigerian states (Plateau, Benue, Taraba and Nasarawa) located in the central-
eastern zone of the country.
After revision of the theory, it was decided to take the approach proposed by Thomas
Homer-Dixon (1994), which connects environmental scarcity to violent conflicts,
especially those of ethnic origin at intrastate level. The work was carried out based on
the case study analysis and information collected from primary sources (conflict database
6
According to World Bank data, the total population of Nigeria in 2018 was estimated at about 196 million.
Available at: https://data.worldbank.org/country/nigeria. Accessed on 20/06/2019.
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The influence of climate change on the escalating communal conflict between herdsmen and farmers:
the case of the Fulani ethnic group in Nigeria
Gustavo Furini
provided by the UCDP
7
), and from the review of secondary sources (books, publications
and papers in scientific journals).
Besides this introduction, the paper has four sections. The first part addresses the
inclusion of environmental factors, especially climate change, in the broader
understanding of post-Cold War security. The next section discusses the nexus between
climate change and violent conflict, and examines how climate change can negatively
affect the availability of natural resources, which in turn generates or exacerbates
conflict. The third section addresses the communal conflict in Nigeria between Fulani
farmers and herdsmen, with a view to identifying the influence of climate change on this
conflict by reducing the availability of natural resources, especially water. The fourth part
of this paper presents the case study that the interference of rain in violent, with fatal
attacks involving the Fulani ethnic group in four Nigerian states. At the end of the
document, the conclusion and references used are presented.
1. The inclusion of climate change in the understanding of security
Environmental issues have been formally on the international agenda since the late 1960s
and early 1970s, culminating in the Stockholm Conference in 1972, however, at that time
central security issues were determined by the Cold War (Sheehan, 2005). The notion
that humanity was causing irreparable damage to the environment and the fear of
nuclear catastrophe were the main concerns of the environmental agenda at the time
(ibid.). During the Cold War period, security concerns were directly related to state
military action and thus, there was no room for discussion of issues such as
environmental security (Dannreuther, 2013). Moreover, such a classic concept of state
protection security lasted for more than three centuries, from the creation of Weber’s
notion of the state until the early 1990s (FOI, 2010).
However, the global changes and challenges that emerged on the international scene at
the end of the last century have brought with it the need to include topics such as
economics, demographics and the environment in order to have a better understanding
of the new directions of security (Mathews, 1989). The exclusivism of the state-centric
bias that had guided security institutions so far was not adequate to cope with the new
challenges ahead (ibid.). Thus, the end of the Cold War allowed the emergence of
interpretations other than those that favoured only the state approach, which enabled a
broader understanding of security (Tomé, 2010). Such understanding has come to
depend on the interaction between various factors and, in this list of new dimensions,
the environmental issue and related themes, such as climate change, are included (ibid).
As evidence of the change in the international scene, in January 1992 the United Nations
Security Council presidency issued a note emphasizing that the end of wars and armed
conflicts between states alone were not sufficient to ensure international security,
admitting that social, economic, humanitarian and ecological issues have become
potential sources of instability for security and peace (UNSC, 1992).
Faced with this scenario of transformation between the late 1980s and the early 1990s,
the environmental theme became part of security studies, and exposed the need to
formulate and develop theories and concepts with a view to delimiting the object of study
(Sheehan, 2005). From this perspective, it is possible to highlight the concept of
7
Uppsala Conflict Data Programme (UCDP).
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Vol. 10, Nº. 2 (November 2019-April 2020), pp. 33-52
The influence of climate change on the escalating communal conflict between herdsmen and farmers:
the case of the Fulani ethnic group in Nigeria
Gustavo Furini
environmental security, which, although its definition still causes heated debate until
today (Soromenho-Marques, 2015), has been used to address the environmental risks
that emerge from natural systems due to human interference (Dannreuther, 2013).
Examples include misuse of natural resources, deforestation, disorderly land use,
contamination of water and atmosphere, and climate change (Sheehan, 2005; Homer-
Dixon, 1994). Anthropic activities began to interfere in natural processes in such a way
that the “Risk Society” began to suffer from the consequences dictated by itself (Beck,
2016), strengthening the understanding that we are living in the Anthropocene
8
period.
Addressing the issue of environmental security raises the concatenation of
methodological precepts of the environmental sphere with disciplines that traditionally
address security issues, such as strategy and international relations (Soromenho-
Marques, 2015).
Moreover, the discourses that address climate change tend to adopt the concept of
“human security” whose origin is attributed to the Human Development Report, published
by the UNDP in 1994 (FOI, 2010). The paper proposes an integrative concept and
involves seven different dimensions of security: economic, personal, community,
political, food, health and environmental (UNDP, 1994). This concept embraces a wide
range of factors based on the understanding that conflicts will become more intense
within nations, and not between them, mainly due to the lack of access to resources and
socioeconomic disparities (ibid). In addition, as the concept evolves and consolidates,
the fifth report of the Intergovernmental Panel on Climate Change (IPCC) has devoted
an exclusive chapter to human security, addressing the risks posed by climate change,
including an increased likelihood of violent conflict in areas with high levels of economic,
social and environmental vulnerability (IPCC, 2013).
Acute insecurity situations such as hunger, conflict and socio-political instability almost
always emerge from the interaction of multiple factors (Burke et al., 2015). However,
there is growing scientific recognition that climate change could undermine human
security as it undermines people's livelihoods, especially through diminishing reserves
and access to natural resources, and can trigger violent conflict both locally and regionally
(Raimi & Jack, 2017). The consequences of climate change must be treated as an
additional environmental element for human security, from the point of view of the state
to the scale of the individual (ibid.), although there are few cases in the literature that
explicitly address the relationship between climate change and security, these studies
indicate the existence of a nexus (IPCC, 2013). However, it is crucial to note that the
academics point out that the relationship between climate change and human security is
mostly indirect, and consider that climate change has a catalytic effect in certain contexts
of violent conflict (Penny, 2018; Raimi & Jack, 2017; Buhaug, 2016; Uexkull et al., 2016;
Burke et al., 2015; Salehyan, 2014; UNGA, 2009).
2. Climate change, scarcity of natural resources and violent conflict
In the 1990s, Thomas Homer-Dixon was one of the pioneers to relate problems of access
to natural resources to security and violent conflict (Dannreuther, 2013). The author
assumed that changes in the environment caused by humans, which have the ability to
8
The Anthropocene marks a time when the magnitude of human interference in the environment is such that
society can be characterized as a geophysical force of global influence, capable of having negative impacts
in various areas, including in terms of security (Dalby, 2017).
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The influence of climate change on the escalating communal conflict between herdsmen and farmers:
the case of the Fulani ethnic group in Nigeria
Gustavo Furini
directly affect not only the quality but also the quantity of natural resources, together
with population growth and the unequal geographical distribution of natural resources,
constitute the tripod of environmental scarcity (Homer-Dixon, 1994). The author argues
that environmental scarcity can, under certain circumstances, disrupt security due to its
ability to interfere with social, political and economic processes, and in weakened states,
the rise in social tension caused by the scarcity of natural resources may culminate in
escalating levels of intra-state violence (ibid.).
Although case studies have been able to document and link the degradation or
unavailability of natural resources to the occurrence of violent conflict, the theory has
been questioned on the basis of weaknesses in establishing a causal relationship
(Dannreuther, 2013). The many variables in the social context, especially in economic
and political terms, make it difficult to identify a causal link between variations in
environmental availability and violent conflict (SIDA, 2018; SIPRI, 2016; Conca &
Wallace, 2012). However, the lack of quantitative studies that are statistically robust to
confirm the direct link between environmental causes such as climate and violent conflict
alone cannot be taken as a parameter to completely rule out any kind of influence (Burke
et al., 2015; UNGA, 2009).
Moreover, the scientific community has recognized that environmental factors have the
ability to exacerbate conflict indirectly through multiple forms, as they aggravate existing
social, political and economic tensions (Penny, 2018; Freeman, 2017; IPCC, 2013;
ACCORD, 2012; FOI, 2010; UNGA, 2009). It should also be considered that the difficulty
encountered in demonstrating the existence of a direct and linear relationship between
environmental issues and violent conflicts reinforces the idea that responsibility rarely
falls under a single factor, but rather results from a succession of interconnected events
(Raimi & Jack, 2017; FOI, 2010). In terms of climate change, the difficulty in establishing
this direct relationship is mainly due to the low probability of groups deciding to conflict
simply because the heat has intensified or due to the decrease in the amount of rain,
however, negative impacts from climate change such as drought and desertification can
lead to violent conflict (Buhaug, 2016).
Each society's social and environmental vulnerability will determine whether the negative
impacts of climate change will lead to conflict (Buhaug, 2016; Scheffran et al., 2012). In
this regard, communities highly dependent on agriculture and livestock, located in poor
countries with low climate response capacity, may be in conflict over the use of natural
resources that have become scarce due to the effects of rising temperatures or falling
rain levels (Buhaug, 2016; Theisen et al., 2011). On the other hand, a society located in
a rich country whose resilience is based on technological development to adapt to change,
as well as on the responsiveness of its public and private institutions, would hardly have
to deal with violent conflict due to the negative effects of climate change (Salehyan,
2014; Theisen et al., 2011).
The question that must to be asked is not “whether” climate change influences violent
conflict, but “when” and “how” it happens (Salehyan, 2014). In order to establish any
link, the analysis should take into account three dimensions, namely: i) the geographical
location at which the impact of climate change occurs (spatial dimension); ii) the period
in which it takes place (temporal dimension) and; iii) the responsiveness of the population
and institutions to cope with the situation of environmental stress (social dimension)
(ibid.). All of these dimensions are interconnected and, in order to have a concrete
interpretation of a specific situation in which these dimensions are acting together, the
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The influence of climate change on the escalating communal conflict between herdsmen and farmers:
the case of the Fulani ethnic group in Nigeria
Gustavo Furini
analysis must be focused on an individualized scenario, avoiding generalizations and the
search for standards, reinforcing, once again, the importance of context analysis (ibid.).
Changes in the environment caused by climate change can undermine human security
by reducing access to certain natural resources indispensable for the livelihoods of many
societies, particularly in Africa (Raimi & Jack, 2017; FOI, 2010; UNGA, 2009). The
scarcity of natural resources and the dispute over their use, such as water, could trigger
violent conflicts (ACCORD, 2012), therefore variations in rainfall rates, either with
increasing or decreasing rainfall, will be responsible for increasing the risk of violent
conflict in highly resource-dependent economies, particularly in rural societies in Africa
(IPCC, 2014). Access to water is a serious problem for many African countries, both in
quantity and quality (IPCC, 2013), hence, one of the challenges in climate change studies
is to predict how the behaviour of rain and temperature rise patterns will occur, since,
depending on these factors, there may be additional pressure on water sources and fertile
land (FOI, 2010).
It should be noted that there is debate among those who argue that there is an increasing
potential risk of conflict due to water scarcity, while others use statistical data to show
that tensions around the availability of this natural resource usually end with negotiation
and diplomacy, especially in cross-border disputes (ibid.). However, most studies
emphasize that this agreements’ scenario may not be the focus in the future, particularly
in intra-state terms, as climate change can aggravate water scarcity in regions with
fragile governments and without the institutional capacity to manage this type of dispute
between local communities (SIPRI, 2016).
Figure 1. Relationship between drought (Palmer Drought Severity Index, from 2005 to 2014) and
violent conflict (UCDP, from 1995 to 2014) in part of the African continent, with focus to
Nigeria inner the red circle
Source: Adapted from the original proposed by Koubi (2019)
Rising global temperatures are expected to induce and prolong periods of drought in
many regions, particularly those already vulnerable to water scarcity, such as the African
Palmer Drought
Severity Index
Nigeria
Conflict Period
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The influence of climate change on the escalating communal conflict between herdsmen and farmers:
the case of the Fulani ethnic group in Nigeria
Gustavo Furini
continent, which may influence intrastate conflicts (Koubi, 2019; Penny, 2018). Koubi’s
study (2019) related the drought indexes from 2005 to 2014, obtained through the
Palmer Drought Severity Index (PDSI)
9
method, with the data of conflicts in the African
continent from 1995 to 2015 provided by the UCDP since 1995, as shown in Figure 1.
Although conflict data have started a decade earlier than the drought index covers
(PSDI), there is a strong concentration of violent conflict in drought-intensifying places,
especially in sub-Saharan African countries, which also applies to Nigeria.
There is some consensus that climate variability on the African continent may lead to
higher natural resource scarcity rates, which are the main livelihoods for a large part of
the population (ACCORD, 2012). Increasing unavailability of natural resources essential
for sustaining livelihoods will have a negative impact on human security, and the most
devastating effects are projected for economies that are less able to adapt to such
changes, which is essentially the case in developing countries (Uexkull et al., 2016).
Regardless of the ongoing debate on the causal link between climate change and violent
conflict, given the imminent threat to human security, it would make sense for the UN
Security Council to take a more proactive stance on the matter (Scott & Ku, 2018; Penny,
2018).
Given the Council's primary responsibility for maintaining peace and security globally, it
does not seem coherent for the body to be oblivious to the discussion or to take a neutral
stance in view of the extension of the phenomenon (ibid). The Security Council shows
that its involvement is reactive and based on protocols on climate change issues, most
likely due to resistance from some of its key members (Penny, 2018). Even in the face
of this Security Council’s weak participatory scenario, it is important to underline the
position adopted by the Security Council with Resolution S/RES/2349/2017, in which it
recognized, in a new way, climate change as a factor of instability regarding security,
mainly due to interference with the availability of natural resources in Africa (UNSC,
2017). The Resolution addresses the conflicting situation that exists in the area of the
Lake Chad Basin, the region in which northeast Nigeria is situated, and in its paragraph
26 recognizes that:
“… the adverse effects of climate change and ecological changes
among other factors on the stability of the Region, including through
water scarcity, drought, desertification, land degradation, and food
insecurity, and emphasises the need for adequate risk assessments
and risk management strategies by governments and the United
Nations relating to these factors… (UNSC, 2017:7)”.
Thus, the absence of quantitative and statistical elements that prove the direct and linear
relationship of the influence of environmental factors on violent conflicts cannot continue
to serve as a pretext to play down their potential participation (Salehyan, 2014). And
this appeal is even more relevant given the risks to human security caused by climate
change in the least developed countries (IPCC, 2013). In light of the foregoing, the next
9
The PDSI was developed in the 1960s and has been used to identify droughts from monthly temperature
and precipitation data, as well as information on soil water retention capacity. It considers both the moisture
received (precipitation) and the moisture stored in the soil, thus representing the potential moisture loss
due to the influence of temperature (WMO & GWP, 2016).
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The influence of climate change on the escalating communal conflict between herdsmen and farmers:
the case of the Fulani ethnic group in Nigeria
Gustavo Furini
section will address the role climate change plays in environmental scarcity in Africa, as
well as its contribution to the worsening conflict between herdsmen and farmers in
Nigeria who are highly dependent on the primary sector of the economy.
3. Climate change, environmental scarcity and communal conflict in
Nigeria: farmers vs. herdsmen
Based on the concept of environmental scarcity proposed by Homer-Dixon (Figure 2),
the perspective that the decrease in the quality and quantity of natural resources,
aggravated by climate change, participates in the chain of events that may influence
communal
10
conflicts between herdsmen and farmers is used here. Such conflicts occur
in several sub-Saharan African countries, presenting themselves as a challenge on a
national and regional scale (Gbaka, 2014), therefore, the impact of Fulani action in
Nigeria will be analysed in more detail.
Figure 2. Influence of climate change on natural resource scarcity and its relationship to
communal conflicts
Source: Adapted from the original scheme proposed by Homer-Dixon (1994).
Africa is currently facing a series of problems arising from environmental degradation,
and in the Sahel-influenced regions the greatest adversities are related to water
availability, which is most visibly manifested by drought and desertification, and the
negative effects are accentuated by climate change (IPCC, 2013). In addition, countries
on the African continent are especially vulnerable to climate change because of their low
10
As defined by the UCDP (2016), communal conflicts are non-state and occur between groups that share
lines of identity such as religion, ethnicity or belonging to the same clan or tribe. They are not permanently
structured groups for combat, but sometimes they organize themselves to engage in violent conflict, and
their scope tends to be intrastate. However, asserting that communal identity refers only to ethnic or
religious identity may give the term a less flexible character, so ACCORD (2012) stresses that the main
identification may be based on livelihood disputes, hence, communal conflicts also involve those that occur
between herdsmen and farmers.
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The influence of climate change on the escalating communal conflict between herdsmen and farmers:
the case of the Fulani ethnic group in Nigeria
Gustavo Furini
adaptive capacity and projected negative impacts (ibid). The scarcity of natural resources
has caused, for example, a series of disputes between farmers and herdsmen, as the
maintenance of rural communities' livelihoods depends directly on access to such
resources (Ahmadu, 2018). Central to these communal conflicts is the search for the
defence of material resources, a struggle that is most evident from the scarcity of water,
which is reflected, among other forms, through desertification (ibid.).
The insecurity of the natural resources necessary for the livelihoods of rural populations
is pressing in Nigeria (CCASTR, 2011). It has been proved that the average temperature
in Nigeria has increased 1.1 °C since 1900 to today, and the world average temperature
has risen 0.74 °C from 1860 to the present day (Akpodiogaga-a & Odjugo, 2010). In
addition, studies in the mid-1980s already pointed to a drought trend in Nigeria as a
result of decreasing rainfall in the central-eastern and northern part of the country
(Adefolalu, 1986). Currently, areas located in northern Nigeria have undergone a
profound desertification process (Ahmadu, 2018; Nwokeoma & Chinedu, 2017; Assibong
et al., 2017), and livestock-dependent populations are directly affected, so there is an
increase in population flows, especially livestock farmers, towards the centre of the
country (Freeman, 2017).
West Africa, in particular Nigeria, has experienced a considerable increase in intrastate
conflicts since the early 1990s, and they have been particularly worrying since the 2000s
with the intensification of clashes between farmers and herdsmen over natural resources,
whose scarcity tends to increase, aggravated by climate change (Okoli & Atelhe, 2014).
Conflicts between farmers and herdsmen are common in almost all parts of Nigeria, and
overcoming them is a major challenge for economic development, food security and the
sustainability of agrarian communities (Ukamana et al., 2017). As stated earlier, the
likelihood that climate effects will lead to violent conflict depends on the context, as well
as on the likelihood that communal conflicts will occur in areas of natural resource scarcity
(Vestby, 2018). This situation is particularly worrisome in regions where the government
is not present, such as in areas where conflicts between farmers and herdsmen are
triggered in the lands of central and northern Nigeria (ibid.). Tracing causality lines
between climate change and conflict requires caution, as it cannot be gauged indistinctly
that citizens begin to fight automatically over simple temperature increases (Buhaug,
2016; Odoh & Chigozie, 2012).
The literature shows that the conflict between farmers and herdsmen is recurrent in
Nigeria and the interaction between both dates back to ancient times, especially the
Fulani group of herdsmen, whose entry into the areas that currently form the Nigerian
territory dates back to the fourteenth century (Ahmadu & Ayuba, 2018). Both the
religious and ethnic biases of tensions between mostly Muslim Fulani herdsmen and
predominantly Christian farmers are important in determining this communal conflict,
exacerbated by scarcity of natural resources and desertification (IEP, 2017). Nigeria is
can be considered a divided country and intra-state violent conflicts can quickly lead to
communal conflict of an ethnic-religious dimension, as ethnic groups usually support their
“lineage” in violent struggle, on the premise that group rights to which they belong should
prevail (Akov, 2017).
The Fulani are a livestock raising nomadic ethnic group of about 20 million people
scattered throughout West and Central Africa (Bamidele, 2018), but only a small part is
involved in violent attacks in Nigeria (IEP, 2017). The Fulani ethnic group owns 90% of
the country's herd, with livestock accounting for a third of the primary sector’s GDP
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The influence of climate change on the escalating communal conflict between herdsmen and farmers:
the case of the Fulani ethnic group in Nigeria
Gustavo Furini
(Bamidele, 2018; Abbass, 2012). Problems related to water scarcity and desertification
in the Sahel caused a change in the behaviour of Nigerian herdsmen, who began to look
for alternatives to maintain their lifestyle in more central areas of the country (Abugu &
Onuba, 2015). The alarming desertification situation across the Sahel region has forced
Fulani herders to drive their cattle to pastures located in the central and central-eastern
parts of the country, also known as the Middle Belt (ibid). Fulani herdsmen have
transformed the central regions of the country into permanent residence and no longer
temporary residence, as was common during travels between the northern and southern
extremes of Nigeria, which contributes to exacerbating the conflicts with the farmers
(Akov, 2017; Abugu & Onuba, 2015; Okoli & Atelhe, 2014).
Conflicts between these two groups stem from competition and a desperate struggle for
survival and livelihood in an environment marked by insecurity and scarcity of natural
resources, a situation exacerbated by climate change (Okoli & Atelhe, 2014; Odoh &
Chigozie, 2012; Abbass, 2012). The study by Okoli & Atelhe (2014) identified that climate
change aggravates the scenarios of water availability (desertification and drought), and,
as a result, increases the migratory flow of herdsmen across Nigerian territory. The high
levels of violence that has involved the Fulani ethnic group since the end of the last
decade must be highlighted, and UCDP data show that this ethnic group was involved in
hundreds of conflicts in Nigeria from January 2010 to December 2017, with 3,334
casualties. Most of the attacks took place in inland villages, particularly in four centrally
located states (Benue, Plateau, Taraba and Nasarawa), where there were 3,085 deaths.
Specifically in these four states, the Fulani came into violent conflict with groups of
different ethnicities, namely: Birom, Tiv, Agatu, Eggon, Tarok, Jukun, Irigwe, Mambila,
Atakar, and Bwatiye.
However, it is important to point out that in relation to the significant number of cases
of fatal victims by violent attacks perpetrated by the Fulani, these acts may have a very
different origin and nature, so although the dispute over natural resources is of great
importance today, it should not be taken as a single factor (Chinwokwu, 2017). Criminal
activities are diverse and may involve armed robbery, murder, looting, kidnapping, and
destruction of communities and churches (ibid.). Most episodes involving criminal acts
perpetrated by the Fulani, especially the heinous ones, are not even investigated by the
government security agencies of Nigeria (ibid.). Moreover, herdsmen hardly ask
permission to move or stay in any community, which in local culture is seen as sufficient
affront to generate serious conflict (Bamidele, 2018). Sectors of Nigerian society criticize
the actions of President Muhammadu Buhari, who, because of his belonging to the Fulani
ethnic group, seems to act in a conniving manner regarding the criminal acts performed
by the ethnic group to which he belongs (ibid.).
4. Influence of the rain regime on the dynamics of the communal
conflict involving the Fulani ethnicity
In this section is presented, from a case study, how water availability, strongly marked
by seasons, can be related to death events in the communal conflict between herdsmen
and farmers in four Nigerian states (Benue, Plateau, Taraba and Nasarawa) in the period
from January 2010 to December 2017. In these states, located in the central-eastern
part of the country, the rainfall regime is marked by the presence of two distinct and
well-defined seasons, rainy (May to October) and drought (November to March).
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The influence of climate change on the escalating communal conflict between herdsmen and farmers:
the case of the Fulani ethnic group in Nigeria
Gustavo Furini
4.1. Methodology used
As a way of approaching the problem, the hypothetical-deductive method was adopted
from a case study, which took as premise temporal and spatial criteria for the collection,
processing and analysis of information. The database on violent attacks on the African
continent provided by the Uppsala Conflict Data Program (UCDP), specifically
Georeferenced Event Dataset (GED) Global Version 19.1
11
was used. For the purpose of
meeting the proposed objectives, only information on violent conflicts with deaths in
Nigeria involving the Fulani ethnicity was selected.
Regarding the time frame, the period from January 2010 to December 2017 was
determined according to the escalation of events with deaths from 2010. However, it is
important to highlight that the UCDP database shows sparse violent events involving the
Fulani ethnicity in Nigeria since the 1990s, with a progressive increase in their frequency
from the early years of this century. Thus, the data indicate that the conflict has not only
been consolidated, but that they have also spread geographically from 2010 onwards. As
for the number of deaths, these were based on the best estimate
12
according to the UCDP
categorization.
Regarding the spatial area, were analysed the events that occurred in four states in the
central-eastern region of Nigeria (Plateau, Benue, Taraba and Nasarawa), the “study
area” of this paper, a choice that is justified given that 92.5% of fatalities were
concentrated in the period (Jan-2010 to Dec-2017), or 3,085 deaths out of a total of
3,334 fatalities (Figure 3). Moreover, the concentration of violent attacks in this part of
the country corroborates the information collected in the literature, thus identifying a
trend of migration from the north towards the central-eastern region of the country in
search of places with greater availability of water and grassland. Events with fatalities
were located on the map from the latitude and longitude information provided by the
UCDP database. It should be noted that there were cases where different events involving
deaths occurred in the same locality at different dates over the analysed period, in which
cases the locations of the events overlapped on the map, which in these cases were
identified by a single point.
In order to verify the existence of a relationship between fatalities and the occurrence of
rainfall, since the variation in precipitation levels has the ability to contribute to greater
or lesser water scarcity, monthly data of accumulated rainfall in millimetres were used in
15 locations
13
, as shown in Figure 4. With the accumulated rainfall data per location,
monthly rainfall was averaged for each of the four Nigerian states from January 2010 to
December 2017, for a total of 96 months. Finally, a graph was generated combining the
information of the monthly rainfall index with the month of the occurrence of fatalities,
according to Figures 6 to 9.
11
Available for downloading at https://ucdp.uu.se/downloads/. Accessed on 20/05/2019.
12
According to the UCDP Georeferenced Event Dataset Codebook Version 19.1, available for downloading at
https://ucdp.uu.se/downloads/ged/ged191.pdf. Accessed on 20/05/2019.
13
Rainfall data used available for downloading at https://www.worldweatheronline.com. Accessed on
15/05/2019.
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The influence of climate change on the escalating communal conflict between herdsmen and farmers:
the case of the Fulani ethnic group in Nigeria
Gustavo Furini
Figure 3. Area of study and location of conflict with fatalities
Source: Author
Regarding the tools used to verify data and generate products, spreadsheet analysis and
editing software were used, also to make graphs and tables. Software was also used in
GIS platform (Geographic Information System) for spatial data analysis and map
production.
Figure 4. Location of rainfall data collection points in the Study Area
Source: Author
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The influence of climate change on the escalating communal conflict between herdsmen and farmers:
the case of the Fulani ethnic group in Nigeria
Gustavo Furini
4.2. Results
The analysis of the data shows, in the study area, that 46.4% more deaths in communal
conflicts involving the Fulani ethnicity occurred in the dry season (November to April)
than in the rainy season (May to October), as shown in Figure 5.
Figure 5. Distribution of deaths by time of year in the study area
Source: Author
Regarding the distribution of deaths over the months from January 2010 to December
2017, we sought to verify the existence of a relationship between higher or lower
precipitation rate with higher or lower number of fatalities. Figures 6 to 9 graphically
represent the monthly average rainfall distribution with the number of deaths over the
entire period analysed in each state of the study area.
Figure 6. Relationship between fatalities and rainfall (Plateau)
Source: Author
1833
1252
0
200
400
600
800
1000
1200
1400
1600
1800
2000
NOV-APR (DRY) MAY-OCT (WET)
F a t a l i t i e s
Fatalities by season
457
4
177
13
3
11
7
27
20
5
1
3
28
25
3
4
34
9
6
2
1
31
20
10
23
62
40 40
34
18
59
8
12
20
1
19
51
0
50
100
150
200
250
300
350
400
450
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0
50
100
150
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250
Jan-10
May-10
Sep-10
Jan-11
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Sep-11
Jan-12
May-12
Sep-12
Jan-13
May-13
Sep-13
Jan-14
May-14
Sep-14
Jan-15
May-15
Sep-15
Jan-16
May-16
Sep-16
Jan-17
May-17
Sep-17
F a t a l i t i e s
R a i n f a l l (mm)
Plateau
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The influence of climate change on the escalating communal conflict between herdsmen and farmers:
the case of the Fulani ethnic group in Nigeria
Gustavo Furini
Figure 7. Relationship between fatalities and rainfall (Benue)
Source: Author
Figure 8. Relationship between fatalities and rainfall (Nasarawa)
Source: Author
4
29
56
35
50
30
20
30
4
46
75
8
62
33
35
13
10
42
2
2
99
12
23
81
3
128
27
15
106
15 15
5
6
26
19
1
0
20
40
60
80
100
120
140
0
50
100
150
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250
300
350
Jan-10
May-10
Sep-10
Jan-11
May-11
Sep-11
Jan-12
May-12
Sep-12
Jan-13
May-13
Sep-13
Jan-14
May-14
Sep-14
Jan-15
May-15
Sep-15
Jan-16
May-16
Sep-16
Jan-17
May-17
Sep-17
F a t a l i t i e s
R a i n f a l l (mm)
Benue
5
2
4
11
6
2
2
2
34
1
20
70
73
59
2
1
33
0
10
20
30
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50
60
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80
0
50
100
150
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250
Jan-10
May-10
Sep-10
Jan-11
May-11
Sep-11
Jan-12
May-12
Sep-12
Jan-13
May-13
Sep-13
Jan-14
May-14
Sep-14
Jan-15
May-15
Sep-15
Jan-16
May-16
Sep-16
Jan-17
May-17
Sep-17
F a t a l i t i e s
R a i n f a l l (mm)
Nasarawa
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The influence of climate change on the escalating communal conflict between herdsmen and farmers:
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Gustavo Furini
Figure 9. Relationship between fatalities and rainfall (Taraba)
Source: Author
Although there is a higher propensity (46.4%) of conflict with deaths occurring during
the dry season (November to April), it is not possible to establish a cause-effect
relationship between less rainfall and fatalities, nor to state that these attacks occurred
exclusively due to the dispute over natural resources. However, it is important to
highlight that the study area is comprised in the region of Nigeria where Adefolalu (1986)
had already identified a lower tendency for precipitation in the dry months, especially in
the central regions of the country, comprised by the parallels 7N to 9N. Analysis of the
rainfall data over the 8 years of the series (Jan 2010/Dec 2017) shows that from
December to February there is virtually no rainfall, and the average annual rainfall was
always below 1,000 mm, which was expected in this part of Nigeria.
5. Conclusions
To explain the reason behind communal conflicts, it is necessary to know the context of
the object of study as broadly as possible, and then to draw conclusions, even if succinct
at first, since conflicts are usually surrounded by a complex network of events. In the
present case, the literature review allowed us to identify, from several studies in different
sources, that the availability of natural resources, especially water and farmland, is
worsening in regions of Nigeria. Scientific studies have shown that climate change plays
an important role in worsening drought and desertification, which contributes to the
forced displacement of rural populations from the north to the central-eastern region
expecting to find natural resources to maintain their lifestyles. Therefore, although
climate change cannot be considered, so far, as an element that acts directly and linearly
in the origin of conflicts, its impact is relevant and its interference should be considered
in communal conflicts, such as between the Fulani herders and the farmers in Nigeria.
4
3
14
13
4
9
52
13
21
34
27
5
10
12
9
31
11
40
0
10
20
30
40
50
60
0
50
100
150
200
250
Jan-10
May-10
Sep-10
Jan-11
May-11
Sep-11
Jan-12
May-12
Sep-12
Jan-13
May-13
Sep-13
Jan-14
May-14
Sep-14
Jan-15
May-15
Sep-15
Jan-16
May-16
Sep-16
Jan-17
May-17
Sep-17
F a t a l i t i e s
R a i n f a l l (mm)
Taraba
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The influence of climate change on the escalating communal conflict between herdsmen and farmers:
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Gustavo Furini
Therefore, it is possible to conclude that Homer-Dixon's (1994) chosen theoretical
approach adequately and satisfactorily applies to the reality of the researched context.
Based on the analysis carried out in the study area during the last section of this paper,
even though it was not possible to draw a dependence relationship between the higher
occurrence or absence of rain with deaths caused by violent conflicts, it is possible to
infer that there is a 46.4% higher probability of fatalities occurring in the drought-marked
period of the year (November to May). Therefore, the causes of this greater propensity
for fatal victims to occur in violent conflicts involving the Fulani in the months with or
without rainfall can be worsened by the decrease in water availability due to global
climate change, which is a topic for further research.
Finally, in an attempt to contribute to the resolution of the communal conflict discussed
here, it is proposed that once it is understood and internalized that the impacts of climate
change are a risk to human security in the country, Nigerian policy makers should
strongly consider all climate change adaptation alternatives available beyond what is
already underway. This is true not only for locally funded initiatives, but above all, more
support and resources should be sought from more developed countries to expand
investment in adaptation projects.
Not only Nigeria, but other countries located in sub-Saharan Africa should raise their
demands during multilateral climate rounds, in particular under the United Nations
Framework Convention on Climate Change (UNFCCC). This is because the Green Climate
Fund, approved by all Parties to the Convention, should receive from developed countries
$100 billion in annual funding to finance adaptation and mitigation projects in poor
countries. However, so far less than 2% of the total that should have been deposited
over this decade has reached the Fund's coffers.
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OBSERVARE
Universidade Autónoma de Lisboa
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Vol. 10, Nº. 2 (November 2019-April 2020), pp. 53-67
EUROPEAN UNION, RUSSIA AND THE MH17 CASE:
STRATEGIC NARRATIVES’ ANALYSIS (2014-2019)
Paulo Ramos
paulocamoesramos@gmail.com
Master degree student in International Relations at the School of Economics and Management,
University of Minho, Braga, Portugal and holder of a Bachelor Degree in Communication Sciences
from the University of Porto. His research interests include EU-NATO relations with Eastern
European countries, including Russia.
Alena Vieira
d4215@eeg.uminho.pt
Integrated member of the Research Centre in Political Science (CICP) and Professor of the
Department of International Relations and Public Administration, School of Economics and
Management, University of Minho, Portugal. She has a Ph.D. in Political Science from the
University of Erlangen-Nuremberg (Germany) and was Visiting Researcher at the Finnish Institute
of International Affairs, at the Institute for Strategic and International Studies (Lisbon), and at
the Catholic University of Leuven. She received scholarships and research grants from the Chair
Inbev-Baillet Latour; Hanns-Seidel-Stiftung; Haniel-Stiftung; Compania di San Paulo, Riksbanken
Jubileumsfond and Volkswagen-Stiftung foundations, as well as from the Foundation for Science
and Technology. Her book 'Russland, Belarus und die EU-Osterweiterung' was published by
Ibidem-Verlag, and her articles were published in the Europe-Asia Studies, Post-Soviet Affairs,
EIOP Cambridge Review of International Affairs, and International Spectator journals, among
others. Alena Vieira has also published several briefing papers and reports for EU institutions and
think-tanks (orcid: 0000-0002-5643-0398).
Abstract
The armed conflict that has erupted in Ukraine in 2014 has been affecting the way the states
involved interact and how they seek to implement certain narratives in a new regional political
context. While Russia has taken a more assertive stance in its neighbourhood through a
narrative that seeks to contradict Western values promoted by the European Union (EU), the
latter has shown some difficulty in presenting a coherent narrative in the face of developments
over the past five years.
In this sense, this article proposes to analyse the EU-Russia interaction, using as a case study
the incident involving the crash of the Malaysia Airlines civil aircraft MH17. The analytical
perspective combines elements of Role Theory - which here focuses on the interaction of
states on the basis of certain expectations regarding their internal (national) and external
(regional/international) roles - and Strategic Narratives. The differences between issue
narratives (including regarding the Bellingcat Investigation Team narrative), system
narratives and identity narratives are explored. The argument presented here is that the
externalization of the EU issue narrative has emerged in two distinct ways - one more
moderate in its official stance as an institution; another more assertive from the point of view
of the work done by the East Stratcom Task Force (EATF). This ends up creating some
dissonance in the way the European Union designs its narrative, and misalignment with the
EU's narrative identity as a role state.
Keywords
MH-17, Role Theory; Strategic Narratives; Ukraine; European Union; Russia
How to cite this article
Ramos, Paulo; Vieira, Alena (2019). "European Union, Russia and the MH17 case: strategic
narratives’ analysis (2014-2019)". JANUS.NET e-journal of International Relations, Vol. 10,
N.º 2, November 2019-April 2020. Consulted [online] on the date of the last visit,
https://doi.org/10.26619/1647-7251.10.2.4
Article received on November 29, 2018 and accepted for publication on May 22, 2019
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European Union, Russia and the MH17 case: strategic narratives’ analysis (2014-2019)
Paulo Ramos, Alena Vieira
EUROPEAN UNION, RUSSIA AND THE MH17 CASE:
STRATEGIC NARRATIVES’ ANALYSIS (2014-2019)
1
2
Paulo Ramos
Alena Vieira
Introduction
The armed conflict in Ukraine in the Donbass region gained renewed momentum with the
crash of the Malaysia Airlines plane on the route between Amsterdam and Kuala Lumpur
on 17 July 2014 as it flew over the conflict zone in Eastern Ukraine. The death of almost
300 people, the vast majority European, has led EU countries to take a more assertive
joint stance in seeking a resolution of the armed conflict in that region. The EU's stance
stood out for greater unity, paving the way for broader sanctions against Russia,
targeting key sectors of the Russian economy, including the financial, arms and energy
sectors. However, the Minsk Protocol signed in September 2014 under the auspices of
the OSCE failed to achieve the ceasefire proposed in the document. The same happened
with Minsk II, signed by the Ukraine, Russia, France and Germany in February 2015,
which unsuccessfully sought to resolve the shortcomings of the first agreement.
Petro Poroshenko, who in 2014 became the new President of Ukraine, since the beginning
was determined to regain institutional ties with the EU, while Russia has sought to
implement new ways of destabilizing the country and fostering its own narrative about
the events in Ukraine. His successor, Volodymyr Zelensky, elected in 2019, is in the same
position and has the same aspirations. Thus, having at its doorstep a conflict which,
according to the UN, has already led to the deaths of 13,000 people, of whom over 3,000
civilians (Office of the United Nations High Commissioner for Human Rights, 2019) means
that the EU's foreign policy has come under heavy media pressure in recent years, which
further increases its responsibility in this process.
Through the analysis of various secondary and primary sources, this paper aims to
analyse the evolution of the narratives of Russia and the EU in relation to the fall of the
MH17, which serves as the main case study in this context.
1
The translation of this article was co-funded by Instituto Camões in the framework of the 1st International
Conference on Conflict Resolution and Peace Studies. Text translated by Carolina Peralta.
2
Special issue of articles presented at the 1st International Conference on Conflict Resolution and Peace
Studies that took place at UAL on the 29
th
and 30
th
of November 2018.
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European Union, Russia and the MH17 case: strategic narratives’ analysis (2014-2019)
Paulo Ramos, Alena Vieira
Theoretical framework
The theoretical framework of this article will be based on the concept of Role Theory.
Developed in the field of sociology and psychology, this theoretical framework has been
adapted to international relations since the 1970s (Harnisch, 2011, p.7; see Walker
1987). The roles played by certain actors are defined as “social positions” influenced by
internal and external expectations regarding their purpose (Thies, 2010b, p. 6336;
Andrews, 1975, p. 529; quoted in Harnisch, 2011, p.8).
According to Sebastian Harnisch, role expectations and role conceptions arise internally
(ego) and externally (alter), and can be challenged, as the role of a particular actor can
collide with that of another. According to Stephan Klose (2018, p. 6), for example, “the
ability of an international actor to fulfil his or her representative aspirations in society
depends as much on his/her creativity and resources as on the social expectations of
others”.
In this sense, post-Soviet states have different perceptions of the EU's role in the region,
and only a few see the institution as a normative power (Nitoiu, 2018, p. 704). This brief
explanation is relevant in the context of this article, as the perception and expectations
of the EU's role as an international actor are not uniform, within the EU or outside the
institution - notably in Russia, with whom it often collides, as the conflict in Ukraine
exemplifies (Ademmer et al., 2016; Chaban and Holland, 2014; Delcour and Wolczuk,
2018; Lucarelli, 2014).
Dirk Nabers (2011, p. 82) presents two distinct ways in which the roles played by
different actors relate to their identities. On the one hand, the role of a particular actor
represents the limit of his actions, which in turn defines his identity. On the other hand,
the actor's representation can also be influenced by his identity, and the former can serve
as a reference or framework for the latter (Nabers, 2011, p. 83). This is important in the
context of the EU, particularly in the case of the conflict in Ukraine, due to what several
authors identify as an imbalance between what is perceived as “European identity” and
what is done in foreign policy matters.
In addition to the support provided by Role Theory as a theoretical approach, this paper
will also use Strategic Narratives, a concept developed by Alister Miskimmon, Ben
O'Loughlin and Laura Roselle (2013). This choice is because it allows us to better
understand how communication (political and not only) affects relations between states,
something that may also help to understand whether this narrative fits in with the identity
and role of the EU.
The armed conflict in Ukraine is particularly highlighted by the confrontation of interests,
discourses and identities between the actors involved, whether they stand closer to the
EU narrative or to the Russian narrative. For this reason, it is crucial to understand how
these dynamics evolve and affect the actors involved, especially at a time when Russia
seeks to assert itself as a true global actor, and in a context where the EU suffers the
consequences of migration-related problems, Brexit or the US administration led by
Donald Trump.
EU - Ukraine - Russia - An Imperfect Triangle
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European Union, Russia and the MH17 case: strategic narratives’ analysis (2014-2019)
Paulo Ramos, Alena Vieira
The armed conflict in Ukraine has attracted academic attention in recent years as it has
become a stage for combat, not only in military terms but above all in political
communication. However, empirical applications of the Strategic Narratives concept in
this context are not often found. Moreover, the work that has been developed focuses
mainly on the impact of the Russian narrative, as exemplified by the contributions of
Joanna Szostek (2017; 2018) or Irina Khaldarova (2016). It is, therefore, important to
understand how this dynamic has been built on the EU side, and what influence it has
had on consolidating the role of the organization as an international actor.
Some authors defend that the EU behaved like any other actor under the circumstances,
and noted that the reaction was quick on several levels (Karolewski and Cross, 2017,
p.138). Michal Natorski and Karolina Pomorska (2017, p.66) also agree with this idea,
saying that the armed conflict in Ukraine has even led to increased confidence among EU
members in the face of growing discomfort in relations with Russia. The cleavage between
the EU and Russia is, moreover, one of the most important aspects of this conflict because
of the consequences it has not only for Ukraine but also for the first two. Regarding this
difference, Svante Cornell argues as follows:
“(…) the Russian sphere of influence is incompatible not only with
the form of European integration envisaged by the EaP, but at a
more fundamental level with the type of countries that the EU’s
instruments would help to create. Where European leaders want a
stable neighbourhood, Russia seeks an unstable one; where Europe
seeks to develop accountability, Russia undermines it. Thus, the
competition between Russia and Europe is not only geopolitical; it is
fundamentally ideological.” (Cornell, 2014, p.119)
Allister Miskimmon (2017, p.164) states that the incongruity of the EU narrative in
relation to Ukraine has affected the institution's international credibility and hampered
the process of affirmation as an international actor in foreign policy. Although the
argument does not refer directly to the MH17 issue, it demonstrates the EU's difficulty in
creating a narrative that can be receptive not only to the Ukrainian community, but also
within the institution; Ukraine thus represents “a test for its identity narrative as a
regional peacemaker and defender of universal values” (Miskimmon (2017, p.161).
The idea that the EU has played a limited role in the face of the Ukrainian conflict is
supported by other authors. Taras Kuzio, for example, presents three factors to support
this argument: the inability to exert an assertive influence on internal reforms in Ukraine,
given the lack of a prospect of integration of the country into the EU; the difficulty in
understanding the motivations of Ukrainian elites; and the difficulty in understanding
Russia's foreign policy dynamics in thinking that enlargement to eastern countries would
have no repercussions (Kuzio, 2017, pp.116-117).
The difficulties experienced in dealing with the Ukraine stem in part from a relationship
with various ups and downs over the last two decades. This link between the two parties
is described as an “ambiguous partnership, founded on a complex legal and institutional
design” (Ferreira-Pereira and Vieira, 2014, p.12). Apart from this institutional difficulty,
Ukraine's rapprochement with the EU has also been affected by internal problems such
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European Union, Russia and the MH17 case: strategic narratives’ analysis (2014-2019)
Paulo Ramos, Alena Vieira
as corruption or lack of stable democratic institutions. Indeed, “the willingness of the
elites to exploit energy dependence for their own benefit” is seen as one of the main
reasons for the high Ukrainian dependency vis-à-vis Russia (Dragneva and Wolczuk,
2016, p.694). This makes “the obstacles that Ukraine faces on its 'path to Europe'
formidable” (Wolczuk, 2017, p.287). The same author, in another article, highlights the
irony that, “after decades of marginalization, Ukraine has become crucial to debates
about the future of Europe” (Wolczuk, 2016, p.70).
This somewhat tumultuous relationship is exacerbated, as it turns out, by Russia's
growing detachment from the EU, and vice versa. Relations within this triangle, at least
until the beginning of the conflict, are described by Vsevolod Samokhvalov (2015,
p.1372) as “a more or less homogeneous complex of zero-sum dynamics”. The author
lists four key arguments in the development of this process, which should be noted
carefully: firstly, each of the actors (EU and Russia) seeks to introduce into Ukraine
political practices in line with their own values and interests; secondly, at economic level,
each actor has sought to open the Ukrainian market to its own markets in order to create
a transnational dynamic; thirdly, both sides have sought to lure Ukraine into their security
projects in the region, a scenario in which NATO also appears as a central actor; finally,
each side has attempted to introduce an ideology and perception of history closer to its
interests (Samokhvalov, 2015, pp.1372-1373).
All this leads to the belief that the EU has indeed had several difficulties in assuming a
coherent role vis-à-vis Russia and Ukraine. Moreover, the role it plays is not always
viewed positively (by other actors). According to Bengtsson and Elgstrom (2011, p.129),
this is a consequence of inconsistent performance and contradictory elements in the
development - and the current result - of European integration.
Strategic Narratives in the Context of Armed Conflict in Ukraine
Given the scenario described above, it is important to explore more carefully the Strategic
Narratives concept. According to Miskimmon, O'Loughlin and Roselle, they are
"representations of a sequence of events and identities, a communicative tool through
which political actors - usually elites - try to attribute a particular meaning to the past,
present and future in order achieve political goals” (Miskimmon et al., 2013, p.5).
The focus on these narratives as vehicles for the transmission of ideas or identities is
important because it allows “to connect the space between the concepts of hard and soft
power” (Roselle et al., 2014, p.75), because the narrative of a particular actor may, for
example, include the use of military resources, so the study of communication and
narratives makes it possible to bridge the gap between these two concepts and to realize
that boundaries are not always easily discernible.
An important aspect of Strategic Narratives, especially in the context of the work
conducted here, is its division into three distinct forms: issue narratives; identity
narratives; and system narratives (Miskimmon, 2017, p. 155). In the case of the first,
the author explains that they refer to how a particular narrative suits a policy, particular
action or event. Identity narratives are related to the identity that a given actor attributes
to himself, and that ends up influencing his narrative and how to act in the international
arena. Finally, system narratives refer to how these same actors view the modern
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European Union, Russia and the MH17 case: strategic narratives’ analysis (2014-2019)
Paulo Ramos, Alena Vieira
international system, which in turn influences the way narratives are created and
projected.
Some authors use the Strategic Narratives concept as part of an analysis of the spread
of fake news during the armed conflict in Ukraine (Khaldarova and Pantti, 2016). The
authors conclude that fabricated news and reports are part of a pre-established strategy
to “elicit an affection response from the public” (Khaldarova and Pantti, 2016, p.899).
This means that strategic narratives can, in certain contexts, take on a destabilizing role,
as has been seen in relation to Russia's position in the conflict with Ukraine.
One of the main catalysts of this informative “anarchy” characteristic of modern conflicts
was the emergence of new communicative tools, namely social media. One of the great
innovations of this technology was that it “provides users with the ability to search for
information and share their own content within their own networks” (Zeitzoff, 2017,
p.1972). This ultimately creates a more chaotic environment where information can be
reproduced and shared by anyone with access to these tools, thus increasing the
possibility of fake news spreading - extremely common in the context of the MH17
incident, as we will see later. In the case of the conflict between Russia and Ukraine, this
can be seen as a case where the Internet has increased the power of the actors involved
to produce disinformation (Mejias and Vokuev, 2017, p.1027).
This new communicative environment is often described as the post-truth regime, that
is, a world in which facts are less important in shaping public opinion than appeals to
personal emotions and beliefs. This aspect becomes increasingly important considering
that the identity of populations is a central factor in the perception of certain narratives.
In the case of Ukraine, for example, Joanna Szostek (2018, p.129) states that "it should
not be surprising that people negotiate the meaning of news with reference to their values
and experiences". This idea is present in another article by the same author:
“A state may spend any amount of money on disseminating
messages about itself and the world, but the results will ultimately
still hinge on factors that are largely beyond its control – including
the attributes of (multiple, diverse) receiving audiences and the
discursive context.” (Szostek, 2017: p.380).
If narratives are produced by actors in order to achieve certain goals, those same
narratives are susceptible to manipulation by the actors involved. In this sense, it is
important to frame the concept of disinformation. This can be understood as
“intentional lies spread as simulated news or documentary formats to achieve political
ends” (Bennett and Livingston, 2018, p.124). The ease with which this type of
malicious information circulates among the various media makes it increasingly
difficult to distinguish the true information from the one that merely intends to lie or
mislead.
Some authors place the responsibility of this process in the strengthening of social
networks as a vehicle of communication (Hannan, 2018). This makes it critical to
analyse the evolution of this procedure on social networks, where the spread of fake
news is considerably easier and more effective.
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e-ISSN: 1647-7251
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European Union, Russia and the MH17 case: strategic narratives’ analysis (2014-2019)
Paulo Ramos, Alena Vieira
In the case of Ukraine and the conflict that started in 2014, one of the existing
arguments is that “the use of social media has weakened the power of civil society by
allowing the rampant diffusion of disinformation” (Mejias and Vokuev, 2017, p.
.1028). Associated with what is considered to be a “breach of trust in democratic
press and political institutions” (Bennett and Livingston, 2018, p.127), the sheer
amount of information sources in today's communication landscape makes
disinformation an increasingly viable tool. Let us look at the words of Bennett and
Livingston for an idea of this context:
“Compared to the mass media era, the current age displays a
kaleidoscopic mediascape of television networks, newspapers and
magazines (both online and print), YouTube, WikiLeak, and LiveLeak
content, Astroturf think tanks, radical websites spreading
disinformation using journalistic formats, Twitter and Facebook
among other social media, troll factories, bots, and 4chan discussion
threads, among others.” (Bennett e Livingston, 2018, p.129)
This helps to create a more chaotic information environment, a kind of “far-west
communication” (Hannan, 2018, p.11). In turn, this factor increases the possibility of
“information wars”, as has been the case in Ukraine, where different positions seek
to dilute the importance of the adversary's narrative. In one of her studies of the
Ukrainian population, Joanna Szostek demonstrates how most people who
participated in the study looked at the general media with a high level of distrust
(Szostek, 2018, p.124).
This type of hybrid combat methods (using not only traditional military means but
also information warfare systems) has been a major concern for the EU, especially
given Russia's recent external action (Wagnsson and Hellman, 2018). These authors
propose a normative stance that favours support to secondary actors who can
challenge attitudes they identify as incorrect, without seeking to ridicule “the other”
(Wagnsson and Hellman, 2018, p.12). This difficulty within the EU to find a proper
stance towards what is generally understood as Russia's escalation in hybrid warfare
demonstrates the importance of using the concept of Strategic Narratives. By
understanding how this process is assembled and propagated, it will be easier in the
future to find ways to deal with it.
On the other hand, the literature on this subject has focused, as previously
mentioned, on the impact of Russian narratives during the armed conflict in Ukraine
(Khaldarova and Pantii, 2016; Mejias and Vokuev, 2017; Szostek, 2017; Szostek,
2018). One of the shortcomings this article intends to fill is precisely to explain the
EU's role in this process, and to understand how the European narrative has evolved
over the last few years.
MH-17 and the Clash of Narratives
The crash of the MH17 plane in July 2014 was a pivotal moment with regard to the
evolution of the narratives of the actors involved regarding the conflict in Ukraine. On
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European Union, Russia and the MH17 case: strategic narratives’ analysis (2014-2019)
Paulo Ramos, Alena Vieira
the one hand, the EU has had the opportunity to strengthen its role as a relevant player
on the ground, as two of its members (the Netherlands and Belgium) have been directly
affected, and have been involved in the Joint Investigation Team (JIT)
3
, the team
responsible for analysing the MH17 case. On the other hand, Russia has sought to use
the incident as evidence that the West continues to push the country away from the
centre of decisions, in particular because of its refusal to participate in the JIT (see Table
1). However, Russia's stance was not oriented towards cooperation; instead, a context
has been created in which the JIT has been constantly confronted with new versions of
the events leading up to the MH17 tragedy. In this section, we look at some important
turning points in the development of the MH17-related process.
On 18 July 2014, a day after the MH17 crash, Ukrainian authorities revealed several
tapes of conversations between Ukrainian separatists and Russian military officials about
the crash (BBC, 2014). Although it was not possible to confirm their veracity, the
suspicions raised from the first hour centred Russia's participation in the crash of the
aircraft. This prompted a rapid reaction from the Russian government, which immediately
took an accusatory stance on Ukraine's role in the case. In an official statement made on
the same day, the Russian Ministry of Defence asserted that Russian air defence systems
did not operate in that area on the day of the crash, implying that there would be
Ukrainian forces with access to equal air defence units in the region, the same as those
used to shoot down the plane, the BUK-TELAR (Russian Ministry of Defence, 2014).
On 21 July, the same ministry held a press conference where it directly accused Ukraine
of the disaster, notably through a model Su-25 Ukrainian fighter plane, allegedly sighted
near the MH17 before the crash. According to the Bellingcat group, all hypotheses raised
by Moscow "have been refuted by multiple sources, sometimes even by the evidence
provided by the Russian government itself" (Toler, 2018). For several months after the
disaster, the Russian narrative of events alternated mainly between these two versions:
on the one hand, that the plane had been shot down by a Ukrainian army-controlled BUK
system; On the other hand, the theory that it was a Ukrainian fighter plane to cause the
fall of the MH17.
As early as June 2015, an analysis by Russian state-owned armament company Almaz-
Antey claimed that the 9M38M1 missile, used to shoot down the MH17, had not been
used by Russian forces since 1999 (Russia Today, 2015). This information came in line
with the theory that the missile was operated by Ukrainian forces without Russian military
personnel being involved in the process. Once again, the Bellingcat research group
contested this information, bringing together a set of images showing how the Russian
military continued to use the same type of missile (Higgins, 2015). In October of the
same year, the Dutch Safety Board's (DSB)
4
final report concluded that the MH17 was
indeed shot down by a Russian-made BUK system, even though it had no definitive
conclusions as to who was responsible for shooting it (Dutch Safety Board, 2015). These
results, though not definitive, again put the Russian government under fire. Once again,
the Moscow narrative was one of denial, trying to convey the message that the West was
trying to incriminate Russia without sufficient evidence (see Table 1).
3
The Joint Investigation Team was created after the fall of the MH17 in August 2014 to lead the criminal
investigation of the case. The group is made up of police and judicial forces from the Netherlands, Ukraine,
Belgium, Malaysia and Australia.
4
The Dutch Safety Board was invited to participate in the MH17 criminal investigation by the National Bureau
of Air Accidents Investigation of Ukraine.
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European Union, Russia and the MH17 case: strategic narratives’ analysis (2014-2019)
Paulo Ramos, Alena Vieira
In this context, the years following the incident were marked by a narrative battle in
which the results raised by the DSB or JIT were quickly refuted by Russian officials, who
sought to feed various theories about the plane crash, particularly the two referred to
above. In September 2016, for example, the Russian Ministry of Defence presented radar
images showing the alleged presence of Ukrainian air defence systems in the region
where the MH17 had crashed, but without reference to the presence of Ukrainian military
aircraft near the MH17, in contradiction to what had been said two years earlier at the
press conference on 21 July 2014 (Higgins, 2016).
It appears, therefore, that Russia's attitude throughout the process has varied,
demonstrating a serious inconsistency in its issue narrative dimension - notably as
regards its concern with the issue of the BUK missile that shot down the MH17 and the
details that involved its production process and transportation to Ukrainian territory.
Moreover, in the identity narrative dimension, we can frame the Russian stance, in the
context of Role Theory, as an ego state - especially in the context of its contesting stance
on the work of the JIT, the attribution of responsibility to Ukraine, and the criticism of
the EU as well as of the West for unconditional support for Ukraine (Telegraph 2014, see
Table 1).
Although the case has lost some media attention since then, the May 2018 JIT report has
once again focused attention on Russia's alleged role. Let us look at one of the main
conclusions:
“Today, the JIT has concluded that the BUK-TELAR which was used
to shoot down flight MH17 originated from the 53rd Anti-Aircraft
Missile Brigade of the Russian armed forces. This observation raises
questions, such as the question whether the Brigade itself was
actively involved in the downing of flight MH17 on 17 July 2014. An
important question, which the JIT is still investigating.” (Joint
Investigation Team, 2018)
According to the argument put forward, the Russian military would have been directly
involved in transporting the system used to shoot down the MH17, a narrative
corroborated by the Bellingcat team. The Russian narrative, on the other hand, remains
to be one of denial of any involvement in the case, reinforcing (recently) the accusatory
stance towards Ukraine. In September 2018, the Russian army announced that the
missile used to shoot down MH17 belonged to the Ukrainian military, having left Russian
territory in 1986 (Vasilyeva, 2018).
On 19 June 2019, the JIT announced that criminal proceedings will be initiated in the
Netherlands against four persons responsible for the MH17 flight tragedy.
The East Stratcom Task Force and the EU’s Response
The traditional EU’s difficulty to act with one voice towards Ukraine has increased in
recent years by the growing campaigns of discrediting and disinformation promoted
largely in the context of conflict by Russian-influenced media or the Kremlin itself. This
is particularly relevant given the EU's inability to prevent its members from sometimes
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European Union, Russia and the MH17 case: strategic narratives’ analysis (2014-2019)
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having different or even contradictory positions (Karolewski and Cross, 2017, p. 148).
Nevertheless, the fall of the MH17 initially boosted the EU's stance towards Russia,
particularly through the tightening of sanctions imposed on Moscow and the
assertiveness of some previously reluctant actors to harass Russia, with particular
emphasis on the case of Germany. This change, brought about by the deaths of European
citizens, has allowed the EU to attribute itself its own narrative as a prominent actor in
the region, whose role is central to the resolution of the conflict, assuming its position as
role state in the face of Russian involvement. The EU's strategic narrative stands out for
its recognition that Russia is involved in the armed conflict in Ukraine, and calls on Russia
to assume its responsibility for the MH17 tragedy (e.g. High Representative, 2018, 2019).
However, particularly at the outset, the EU sought to move away from the 'narrative war'
on the course of events leading to the fall of the MH17, without following the changes in
the Russian narrative, or to highlight the serious inconsistency of this narrative in its
official discourse. Eventually, this made the Russian strategic narrative maintain its
projection, which was further reinforced by the surprising position of Mahathir Mohamad,
Prime Minister of Malaysia, who in June 2019, contrary to the previous government's
position, challenged the JIT conclusions by stating that the latter had no evidence of
Russian involvement in the tragedy.
The EU’s stance - which focused on supporting the work of the EIC/JIT, considered
'essential' and conducted 'with independence, professionalism and impartiality' (High
Representative, 2018) - went no further than this, ultimately weakening the issue
narrative dimension of the EU’s strategic narrative, creating a misalignment with its
narrative identity of an actor invested in the promotion and defence of human rights,
values, and able to contribute to the resolution of an armed conflict, in line with the
action of a role state (see Table 1).
The main way the EU found to counter Russian disinformation campaigns was the
establishment in 2015 of the East Stratcom Task Force (ESTF), a team to monitor and
document disinformation narratives that are somehow linked to Russia or related media
groups operating in the Eastern European region. In its conclusions of March 2015, the
European Council reiterated the “need to address continuing Russian disinformation
campaigns” (European Council, 2015), which led to the writing of an Action Plan
presented in June of that year. The importance the EU attaches to the ESTF is appreciated
by its assessment of the systematization of 4500 cases of Russian disinformation by the
Council in 2018 and the tripling of the ESTF budget in 2019 compared to that in 2018
(EEAS 2018). However, the ESTF position “cannot be considered the official position of
the EU” (EEAS 2018).
Through a weekly publication entitled Disinformation Review and its EUvsDisinfo website,
the ESTF seeks to analyse fake or biased news in favour of the Kremlin's official position.
Unlike the EU, the ESTF takes a much more critical stance on Russia's role in the armed
conflict in Ukraine. In the case of the MH17, the work conducted resulted in the
publication of several articles that generally point to Russia as responsible for covering
up the true cause and those responsible for the crash of the plane, with 'nine waves' of
Russian disinformation directed at the MH17 case to be listed in one of the analysed
examples (EUvsDisinfo 2017).
In another article on the subject, the team argues that “the Russian authorities have
been conducting, together with the media, a disinformation campaign that they directly
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European Union, Russia and the MH17 case: strategic narratives’ analysis (2014-2019)
Paulo Ramos, Alena Vieira
and indirectly control in order to cover up the truth about who shot down the MH17 flight
of the Malaysian Airlines in Eastern Ukraine” (EUvsDisinfo, 2018). A more recent article
presents a chronological analysis of what is defined as “five years of pro-Kremlin
disinformation campaigns” (EuvsDisinfo2019). This shows that the ESTF sees Russia not
only as an “enemy” of MH17 research, but also as an obstacle to the EU's own values.
If we compare this position with that of a certain official withdrawal from the EU regarding
these disinformation campaigns, we find that there is a dissonance in the EU's strategic
narrative, with a more thoughtful position and seeking to maintain an open line of
dialogue with Russia; and another more assertive, which clearly identifies Russia as an
antagonistic actor - the position of the ESTF. The latter better aligns the EU issue
narrative and identity narrative as a normative actor in line with a role state, but is not
accepted as an official EU strategic narrative.
Conclusions
The armed conflict that started in Ukraine in 2014 has proved to be a difficult obstacle
for the EU in terms of foreign policy and international projection. The MH17 flight tragedy
serves as the clearest example of this conflict as a combat stage, not only in military
terms, but above all in political communication.
In the case of Russia, the response to the incident has ranged from a focus on issue
narrative - notably as regards its concern with the issue of the BUK missile that shot
down the MH17 and the details that involved its production process and transport to
Ukrainian territory; and on a narrative identity that we can frame, in the context of the
Role Theory, as an ego state - especially in the context of its stance on the JIT's work.
The narrative dimensions presented turn out to be inconsistent and misaligned, but
ultimately create a serious challenge for the projection of the EU's own narrative, which
initially sought to move away from this war of narratives.
Table 1. Russian and EU strategic narratives regarding the MH 17: identity, system, issue
Identity
System
Issue (MH17)
Russia
- Narrative of an ego state
- Western attempts to
represent Russia as 'guilty'
and 'enemy' - exclusion of
Russia by the West/EU and
non-acceptance of Russia
as a Global Actor;
- Confrontation between
Russia and the West in
Europe
- EU / West should
accept Russia as ego
state for the sake of
regional stability
- Responsibility for the
tragedy: Ukrainian;
- Criticism of unconditional
Western support for Ukraine,
both regarding MH17 and
armed conflict
EU
- Narrative of a role state
- Actor aspiring to find
solution to regional
conflicts
- Governance based on the
principles of democracy and
human rights The power of
the EU example (despite
Brexit)
- Principles of
Democracy and
Human Rights
- Principled pragmatism
- Responsibility for the
tragedy: Russian, must be
assumed by Russia
- Russia's involvement in the
armed conflict in Ukraine:
Russia as a Problem and not
as a Strategic Partner
*** - STRATCOM: Russia as
responsible actor for
purposeful disinformation
and challenging EU values
Source: Table prepared by the authors, based on Miskimmon's contribution (2017).
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European Union, Russia and the MH17 case: strategic narratives’ analysis (2014-2019)
Paulo Ramos, Alena Vieira
Following the analysis presented here, we find that this withdrawal made it difficult to
project a more assertive narrative, officially, a kind of "outsourcing" of the response to
the Member States and the JIT taking place. The clearest answer comes as a result of
the work of the ESTF and the “EU v. Disinfo”, although it is rarely incorporated into the
EU’s position as an institution. The dissonance that results from this EU position
ultimately weakens the issue narrative dimension of its strategic narrative, further
creating incongruity with its narrative identity as an actor invested in the promotion and
defence of human rights, values, and able to contribute to the peace in the region. We
can conclude that the EU, while seeking to maintain its narrative identity as a role state
in the region, has had difficulty fighting Russia's constant disinformation campaigns in
the context of the fall of the MH17.
The aspiration to maintain its narrative identity did not result in the institution projecting
a consistent and strong enough narrative, but it served as a kind of “testing ground” for
the projection of new disinformation campaigns.
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OBSERVARE
Universidade Autónoma de Lisboa
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Vol. 10, Nº. 2 (November 2019-April 2020), pp. 68-81
GLOBAL SECURITY ASSEMBLAGES: MAPPING THE FIELD
Jovana Jezdimirovic Ranito
jovanaranito@gmail.com
Post-Doctoral Researcher at the University of Porto and External Examiner for Diploma Program
in Global Politics at the International Baccalaureate Organization. She holds PhD in international
politics and conflict resolution from the University of Coimbra. Her area of expertise includes
private security governance, regulation of private security contractors, and dynamics between
public and private security/military forces. Her most recent publication is Regulating US Private
Security Contractors, published in 2019 by Palgrave Macmillan
Abstract
Global security assemblages’ concept, in a decade of its existence, has been a useful tool to
explain a lot of atypical security collaboration between private and public entities. It has
greatly improved understanding of collaboration between public and private security forces,
which, until then, mostly ha0s been seen through the civil-military paradigm. Through the
expansion of scenarios where private security forces have been observed (to include
environments not considered either at war or in peace, but somewhere in between) global
security assemblages demonstrated, on numerous occasions, examples that cooperation
between private and public forces may contribute to the improvement of the global security
environment.
Hence, how far can we stretch this concept? Private entities operate at numerous places and
contexts and the concept may be a limited tool to understand their input in achieving a more
stable environment. It has been set to apply in peaceful settings, but would it be possible to
extend its application in unstable environments, within unpredictable security settings? This
paper looks at how the concept has been used and applied so far, the scope where it can and
has been applied, and draw the limitations to its use.
Keywords
Global security assemblages; private security; conflict; civil-military relations; public-private
relations
How to cite this article
Ranito, Jovana Jezdimirovic (2019). "Global Security Assemblages: mapping the field".
JANUS.NET e-journal of International Relations, Vol. 10, N.º 2, November 2019-April 2020.
Consulted [online] on the date of the last visit, https://doi.org/10.26619/1647-7251.10.2.5
Article received on November 29, 2018 and accepted for publication on May 17, 2019
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Global Security Assemblages: mapping the field
Jovana Jezdimirovic Ranito
GLOBAL SECURITY ASSEMBLAGES: MAPPING THE FIELD
Jovana Jezdimirovic Ranito
Global security assemblages’ concept arose as a response to the long quest for a suitable
framework under which cooperation and dynamics between private and public actors
providing security can be studied. Strong reintroduction of use of private security in
mainstream policies by states since the beginning of the century, aside from their ever-
growing use by the private sector, caused serious difficulties in studying dynamics
between new actors and their interactions with state forces and/or institutions. The first
wave of literature sought historical references on how to address these new actors, and
found fertile ground in comparison to mercenaries, after some of the more serious
incidents caused by those forces under government contracts (Fidler, 2007; Pelton,
2007; Singer, 2004). The mostly unknown mode (to the general public) in which they
are employed, rules of their engagement, and limited institutional and legal frameworks
under which these new actors would be categorized, caused hitches in their better
understanding (Silverstein, 1997; Brooks, 2000; Singer, 2003; Kinsey, 2005; Krahmann,
2005a). The misunderstanding of the evolution of the private security industry - and the
perception by the general public that they are mercenaries - was the principal challenge
faced in the early years. On the one hand, Silverstein (1997), Brooks (2000) and Singer
(2003) contributed by shedding a light on the industry and the new contexts within which
they are employed. On the other hand, Kinsey (2005) and Krahmann (2005a) highlighted
the inadequate legal framework to deal with the private security industry, instead of
mercenaries.
Security governance literature has addressed aspects of the inclusion of non-state actors
(and particularly private security companies) in the institutional framework (Bryden &
Caparini, 2006; Bures & Carrapico, 2017; Krahmann, 2010). However, few options were
available to observe everyday dynamics between state and private security actors.
Certainly, the most problematic issue for academics was the approach used to accomplish
it; namely, after the expansion of the use of private security to stability operations and
post-conflict setting. Avant (2004, 2005) addressed the power exchange issue by looking
at how effectively on the ground and in the decision-making process power related to
security decisions previously monopolized by states has been influenced by the private
security companies working for them. She acknowledged difficulties in applying any IR
approaches to issues associated with private security companies, since those actors and
interactions represent new realities that we have not seen before (Avant, 2006). Another
commonly used approach to address cooperation between private security forces and
state institutions is through civil-military relations/cooperation. From looking how these
work together on the ground and problems they face from diverse cultures they have
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Jovana Jezdimirovic Ranito
(Bruneau, 2011; Herbst, 2007; Holmqvist, 2005), to observing it as a governance matter
(Krahmann, 2005b), to seeking answers within network theories (Avant, 2016;
Krahmann, 2016), academics have struggled to apply knowledge from the ground to
existent frameworks.
In such settings, there was a need for another approach that would facilitate the study
of not only the military outsourced security (by some states), but also to expand analysis
on commercial security services provided globally that linked state institutions and
private actors. In 2009, Abrahamsen and Williams proposed a new tool to study the
impact of and relations between private security companies and state actors, related to
commercial use of security. Global security assemblages proposed to look at how, in
practice, private security companies may affect security settings on the ground. The
greatest innovation was the possibility to observe dynamics closely between private and
public actors and to focus on the empirical data.
A decade has passed since its first introduction and here the focus is given to the utility
of this concept so far. The contribution I seek to make is to present a balanced overview
of the last decade, examining this concept through a literature review focusing on how
the realities have become ever more complex and are not explicable by utilizing other
approaches, such as security governance of actor-network theories. I shall attempt to
demonstrate that it has gained ground on its own merit, although it has served as an
inspiration to other concepts that have derived from it. Finally, this paper will explore the
challenges that the global security assemblages concept is now facing with the growing
complexity of security environments, namely the analysis of the inclusion of new actors
like terrorists, rebels and various criminal groups.
To accomplish it, I address where this concept has been applied so far and with what
purpose. Then I draw on its limitations that have been recognized and question its
relevance a decade after being introduced. I make a critical analysis of the most
important literature published in a decade of its existence and I seek to include the wide
range of issues that have been explored. The article is divided into four parts, as follows:
In continuation, I address the concept itself and explain its main features and aims. Then,
I look at where geographically, thematically, and by which disciplines it has been used
so far. Then, I draw the limitations of the concept. Finally, I conclude that even though
there are a lot of benefits in using this approach, there are certain restrictions as well,
and recommend new research areas.
Global security assemblages concept - what it is and why we are using
it?
The concept of assemblages is not new and has been used in various disciplines through
previous decades. Originally, concept and theory of assemblages were introduced by
French philosophers Deleuze and Guattari (1987), and, after them, it has been widely
used and developed within sociology and political science. Deleuze´s contributions to
assemblage thinking have been widely accepted, but it´s rudimentary and rather
scattered thoughts rather than articulated theory have been recognized as well
(DeLanda, 2006, p. 3). Deleuze and Guattari established the concept of assemblages,
still primordial in articulation but containing three essential elements: abstract machine,
concrete element, and personae. As Nail (2017: 23–24) stressed, for Deleuze and
Guattari assemblages are like abstract machines as they a) do not exist as a thing/object
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in the world but are rather a set of external relations that surround elements and
agencies, and b) are networks of specific external relations defined by composition,
mixture, and aggregation. Assemblages also need to have a concrete element, an
existing embodiment of assemblages, as a skeletal frame or archipelago (Nail, 2017: 26).
Finally, the personae of the assemblages are agents that cannot be observed and studied
independently, as they are mobile operators that connect concrete elements together
according to their abstract relations. Deleuze and Guattari give examples of a runner or
an intercessor, stating that “persona is needed to relate concepts on the plane, just as
the plane itself needs to be laid out” (Deleuze & Guattari, 1996: 73–76).
In 2006, DeLanda presented what he considered to be an improved version of
assemblage theory, which he considered to be version 2.0 of Deleuze´s or, as he called
it, “neo-assemblage theory” (DeLanda, 2006: 4). His drive was to set assemblages theory
free of the micro-macro divide and to allow a cross-level analysis of sociological entities
and processes. The difference from the isolated concepts mentioned by Deleuze is in
collecting certain elements of assemblage thinking and making analytical sense of them.
For instance, he departed from Deleuze and Guattari´s social ontology (individuals,
groups and the social field), which he considered to be primitive, and extended it to
international organizations and interpersonal networks. Also, he advances further by
showing that assemblages must be fully “independent from our minds”, calling on them
to be autonomous, mind-independent agents. He departed from the recognition that
exteriority of relations is an important assumption of assemblages. That implies
assemblages are not firm and static formation; they may be separated in functional parts
that interact with the other actors, but still, when they interact among themselves, their
interactions may result in synthesis (DeLanda, 2006: 11). Moreover, he analyzes
binomial relations between territorialization and deterritorialization and uses coding to
analyze each element of interaction among those parts that form assemblage. DeLanda
dedicated every chapter to a different kind of assemblage, to express the range of forms
they may take: social (chapter 1), linguistic (chapter 2), martial (chapter 3), scientific
practices (chapter 4), a diagrammatic of the actual and virtual (chapter 5), atomic,
genetic and chemical (chapter 6) and scientific and mathematical solutions (chapter 7).
Through time, academics have been leaving their own mark on the concept of
assemblages by extending its use and proposing new directions. The main advance from
DeLanda´s theorization is the assumption that assemblages should not be limited to
theory, but rather considered as a way of thinking. As Acuto and Curtis (2014: 3)
explained, applying a thinking tool to assemblages is “a feature that makes this approach
less of a theory and more of a repository of methods and ontological stances towards the
social”. Others have begun introducing new aspects and theories to supplement
assemblages thinking: Legg (2011) in conjunction with Foucault, Haraway with a feminist
approach (Feigenbaum, 2015), and McCann and Ward (2012) with an application to study
of policy. Even though each application has its own idiosyncrasies, assemblages thinking
would have some core characteristics, like embracement of multiplicity, focus on
practices of relation and ordering, a mixture of material and symbolic expressivity, and
simultaneity of territorialization and de-territorialization (Bureš, 2015ª: 17–18). Other
common characteristics of all assemblage thinking are methods applied to accomplish it:
ethnography, interviews, participant observation, and discourse analysis (Lisle, 2014:
70).
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Global security assemblages is a concept drawn by Rita Abrahamsen and Michael Williams
(2009b) with an aim to provide a framework to learn from the practices the impact private
security companies have on security context where they operate. They departed from
the Sassen (2008) notion of state disassembly that assumed reconfiguration of the state
as we knew it before, in the western style democracies, and integration of non-state
actors as active participants. The contribution of Sassen is not solely a recognition of the
existence of non-state actors, as this had previously been done decades ago; however,
she is the first to explain that the system founded on traditional agents needs to be
disassembled and reassembled to bring in non-state actors as equal and active
participants in governance structures. From there, Abrahamsen and Williams proposed a
reassembly of how the security provision is perceived nowadays and include private
security providers as an integral part of it.
Such an approach brought into the center of analysis, when it comes to private security,
an important element that previously has been left aside: ethnography. Not limiting the
descriptive nature of the ethnographic method, but using it as a departing point of
analysis, global security assemblages’ concept focuses on the integration of data
collected from practices and its interpretation through two important – and up to then
separate – paradigms: private/public and local/global. By using Bourdieu´s concept of
field
1
, Abrahamsen and Williams (Abrahamsen & Williams, 2010) work on reassembly of
our perceptions of where the public sphere terminates and where the private begins.
They used the concept as an analytical liberation from heavy theoretical constraints and
assume that the concept is constructive and deeply interconnected with empirical findings
(2014a: 27). It steps up from the linear understanding of the place and role of actors
involved in the informal security governance (setup) in certain places, as in Africa, where
western conceptualization of how things occur is not applicable (Abrahamsen, 2017).
They made a huge step by setting aside, up to then, used network theories to explain
how security actors cooperate and work at the same place. Their conceptual set up is
leaning on Bourdieu´s concepts of capital and power, allowed both solidification of
theoretical ground and setting some conceptual boundaries, and in the same time
openness to adapt it to be applicable in the realities that are not western democracies.
Even though they admit slippages between Bourdieu´s field theory and assemblages, it
is clear that Bourdieu´s field theory is not applicable in its entirety here (Abrahamsen &
Williams, 2014b: 27). Concept of field simply is not extendable to a global scale and,
therefore, significant adjustments were necessary. However, it permitted freedom to set
non-linear, non-network sets of actors, and to admit transformational nature and
characteristics when it comes to the power they hold and capital they have.
The reassembly of our security perception extends to a distinction between a local and
global, and public and private, and the crucial point is that the traditional western-centric
definition of the state and institutions run by it have a very different version in the non-
western world; and those concepts will not do justice to analysis that is done, simply
because they are not reflecting requirements that those concepts hold in western
1
The field represents a social space that goes beyond locating objects of analysis within historical, spatial
(local, national, international), and relational context, and includes comprehension of how previous
knowledge was generated, by whom, and whose interests were served by those practices (Bourdieu, 2000a,
2000b). The analogy sometimes is given to a certain sports game field: they are shaped according to the
game that is played; it has its own rules, its own star players, histories, legends, and lore (Thompson,
2014: 67). Agents do share more than one field simultaneously, varying in generality and scope, and include
both professional and private spheres of life.
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tradition (Abrahamsen, 2017). Their examples through Africa demonstrate blurring lines
among benefits in security, considering the action of private companies and “public”
forces (Abrahamsen & Williams, 2010). The same way, those public entities are
considered local, but with input and cooperation with global security companies, the
security outputs may not be constricted on the action of either separately (Williams,
2016).
Where and how it has been employed so far?
This approach has been embraced by the academic community globally as it opened up
a space for a study of the commercial private security companies beyond conflict zones,
still in a context of public-private security provision and use as military support. Private
companies and NGOs globally have been using private security companies to secure their
operations and assets in remote and challenging environments (Avant, 2007: 457;
Omeje, 2017). The mining and gas exploration companies have been heavily using these
agents since the early 1990s and their use has exponentially grown (Börzel & Hönke,
2010; Ferguson, 2005; Kirshner & Power, 2015). The most notable outcome was an
acknowledgment that private security providers have caused some positive impact in the
communities where they conduct their operations. They introduced higher operational
standards, approximated human rights respect in local communities, and overall
increased the perception by the local population of a more secure environment
(Abrahamsen & Williams, 2007; Campbell, 2006). This was accomplished, for instance,
by providing training to local security groups (either formal or informal), transcending
the security efforts to the local community (from solely on the grounds of the contracting
company) or offering workshops to the local population on conflict resolution techniques.
The main benefit has been the ability to look at the everyday practices and dynamics
that occur between private security providers and state forces. Such benefit may be seen
in the research both in developing and developed countries, even though the concept
was set having in mind countries where western concepts were not fully applicable. As
Abrahamsen and Williams (2014a) explained, the western concepts and attempts to
apply them to underdeveloped settings have severely failed. Global security assemblages
allowed the perception of how the security sector is established and running in Africa. In
a sense, they opened up vocabulary and offered tools for western society to research and
get a grasp of workings of the security sector in Africa.
To follow the geographical focused on Africa used by Abrahamsen and Williams, the
concept was also used to demonstrate practices in Tanzania (Abrahamsen & Williams,
2017), Liberia (Abrahamsen and Williams, 2009a; Mohlin, 2017), Somalia (Cunha, 2017;
Reno, 2017; Sandor, 2016), Democratic Republic of Congo (Schouten, 2011, 2017),
Nigeria, and South Africa (Abrahamsen & Williams, 2010). Those works delved deeply
into how these interactions between private security companies and non-state local
agents serve as a substitute/supplement for public service and how they effectively
contribute to the improvement of the local security environment.
Besides across Africa, the concept has been used to study the Middle East and Europe as
well. For instance, Tholens (2017) approached how global security assemblages have
been constituted in the post-2011 the Middle East. And, Hazbun (2016) looked at the
Lebanese reality and used it to contextualize the state of the security sector in this
country. In the European settings, Bures (2015a) used it to dismantle and reassemble
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Jovana Jezdimirovic Ranito
operations of the private security industry in the Czech Republic. He analyzed various
assemblages – private and public, and all in between – and shed light on the complex
world of the private security industry in a social context within one country. More
recently, Borrajo Valiña (2018) explored emergence of the European Union
comprehensive approach, based on global security assemblages, to address recent
external conflicts and crisis. Before them, Berndtsson and Stern (2011) applied it in
analysis of the operations of Stockholm airport security. Van Steden and De Waard
(2013) applied it to what they called McDonaldization of private security industry across
Europe, where commercial private security with neoliberal doctrine has been expanded
to cover the areas that state would not.
With regards to the sectorial approach, in addition to being used as it was originally
intended and imagined within the ‘Peace’ and ‘Conflict’ audience – to explain the
dynamics between untraditional private-public and local-global actors in the developing
world – several other approaches and disciplines have also found this concept to be
useful. The range goes from the feminist perspective, over sociology, to criminology. For
instance, in the feminist perspective, research looked at how global security assemblages
affect contractors´ households (Chisholm & Eichler, 2018) and how gender is affected by
private security in global politics (Eichler, 2015). Within the sociology approach, Bongiovi
(2016) used global security assemblages to demonstrate the setup and operations of the
2012 Olympic Games in London. In criminology, it has been used to explore various
aspects of policing (Abrahamsen & Williams, 2007; Albrecht, 2017; Diphoorn, 2015).
The range of issues that are explored by this approach is wide: from looking over border
control and protection of drug trafficking (Sandor, 2016), to its application to extractive
industries (Abrahamsen & Williams, 2017), to its significance to larger security
governance around the globe (Bureš, 2015b; Cunha, 2017; Hazbun, 2016; Hönke &
Müller, 2012) or policing (Abrahamsen & Williams, 2007; Albrecht, 2017; Diphoorn,
2015), and it will be certainly expanded further.
Moreover, Abrahamsen and Williams's concept served as an inspiration for others who
adjusted it and used it in their own research within the field of security governance and
beyond. Within security governance research – while Abrahamsen and Williams
established the global security concept as a tool to distance from agent-network theories
– it is interesting to watch how Schouten (2014) departs from it to look at global security
assemblages’ broader impacts on security governance and suggests that the agent-
network theory widens the scope of what security assemblages are. Within security
studies, Collier (2018) departed from the philosophy behind the concept and adjusted it
to address cybersecurity reality. Mary Kaldor (2018) took a more sociological turn and
used it as a departure for establishing the global security culture concept.
As we could see, this concept is transversal from the point of view of disciplines,
geographical areas, and topics where it has been useful and applied. From IR, sociology,
and criminology; to overlooking Africa, Middle East and Europe; to security governance,
policing, border control, and extractive industry, the scope of the concept is wide. We
could also see that it has inspired others to adapt it and apply the same philosophy to
other areas, as in the case of cybersecurity and security cultures.
However, when working with this concept, academics recognized some constraints and
limitations to apply the concept, particularly when trying to expand on the areas that are
not security stable.
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Limitations and constraints of the concept
The last decade demonstrated that there was a dire need for a concept that will allow
looking at dynamics between private and public forces beyond beholding over power
relations but at how they impact security environments on the ground. It brought
significant empirical data to the surface and produced practical knowledge about how
those assemblages work in various points of the globe. However, some constraints of the
concept, as proposed by Abrahamsen and Williams, are becoming more visible. The use
of the concept has been stretched to accommodate diverse scenarios worldwide, as we
previously saw. The fact is that the world is more complex than it was a decade ago when
the concept was introduced. Those complexities, because of the concepts of global
security assemblages, are now more visible than they used to be. While before there was
more accent on public-private and global-local divisions, this concept allowed observing
everyday practices that show blurred lines between them. That permitted seeing more
in detail actors involved in assuring security in local communities, for example the local
private security group Sungusungu in Sierra Leone, which assumed responsibility for the
resolution of over 90% of local disputes because their coverage of local areas is much
greater than that of the public forces (Albrecht, 2017). Also, it exposed an increasing
range of actors to be considered in such assemblages, as well as complex circumstances
where there are actors in the same space providing different dynamics at different times,
as was the case of the rebel group in Kenya that originally contributed to making the
environment more volatile, but then turned into a legitimate political force who eventually
contributed to the stabilization and expanding of the security situation (Rasmussen,
2017).
Nowadays, there are many scenarios where we cannot make a simple distinction between
the commercial use of private security and military use, as a decade ago it was. In that
sense, even though Abrahamsen and Williams (2014b, p. 26) claim the concept to be
more of a descriptive term than it carries on theoretical baggage, it crosses with many
challenges to apply in more complex settings, where security may be evaluated to be
between war and peace. As the departing assumption of the concept is that public and
private local and global actors do work together (intentionally and coordinated, or not)
with an aim to accomplish more stable security environment, particularly in the
challenging place like many given examples across Africa. Hence, there are other actors
(global, local, public, and private) who might not work in such linear mode, who might
gain more from destabilization of the region that contributing to its stabilization.
That is the situation that Didier Bigo (2014: 208) identified as “messiness of the world”
and called on impossibilities to establish clear and absolute boundaries. He insists on the
claim that divisions as war and crime, violence, and security not only are not helpful for
the understanding of the current practices that occur around the globe, but they are, in
fact, harmful. Division of the agents and their role to a certain scenario, i.e., the police
is dealing with internal treats vs army that deals with threats across the border are
refuted by practices as invalid. Moreover, the gains and risk that certain agents represent
in the broader understanding of security in certain regions may be misleading if the risk
assessment does not include crime and corruption as well. While Abrahamsen and
Williams looked exactly in overcoming some divisions (public-private and global-local),
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their focus was on how those dynamics work with the final aim to see benefits for a local
security context.
In a line with Bigo´s concerns, Doucet (2016) recognizes the merits of the global security
concept but demonstrates that such a concept is limited in the analysis of more complex
realities, such as modern-day interventions. Because of the multiplication of the agents
(both commercial and military use) involved and trying to use the concept in the areas
where stability is still volatile (as post-conflict or stability operations), the concept has
been stretched to its limits. It was not drawn to cover those circumstances, yet its core
philosophy would be adequate for thinking about how those assemblages do work.
Even when considering somewhat stable environments, there are new hybrid forms of
assemblages that go beyond private companies and public institutions and call on the
importance of traditional leaders or locally organized security groups, considered non-
state actors, as the crucial part of the local security dynamics in the developing world.
Peter Albrecht (2017) demonstrated the weight such non-state actors carried in the
Sierra Leone where the private security actor Sungusungu assumed informal
responsibility for the resolution of community conflicts where there was an absence of
public forces. Those actors, by being involved in such hybrid assemblages, may gain the
political significance they previously did not possess, as happened in Kenya where the
rebel group evolved into a legitimate political force (Rasmussen, 2017).
There is a growing literature on the other actors – such as terrorists, rebels, warlords,
and other criminal groups – that turn security analysis even more complex (Varin &
Abubakar, 2017). The exclusion of the terror-crime nexus when analyzing security
assemblage at certain locations can cause significant alteration of the results and limit
understanding of dynamics and actors relevant in certain security contexts. For instance,
Frowd and Sandor (2018) demonstrated this to be relevant in the Sahel case, but
certainly, this is applicable in many others. As mentioned above, expansion of what is
considered a relevant private actor (i.e., commercial private security company) a decade
ago, is much wider now when there are, besides local groups and traditional leaders, also
other groups that contribute – positively and/or negatively – to the security environment
locally. There are global actors, such as radicalized and extremist groups that contribute
to alterations in security dynamics in certain regions that cannot/should not be dismissed.
Difficulties to include such groups within analysis provided by global security assemblages
is noticed (Ismail, 2013).
Finally, the dificulty of the global security assemblages’ concept is in considering all these
dynamics and acknowledging the complexity of the input of various actors involved.
Some of those actors may contribute positively at one time, while negatively at other.
Also, there may exist a number of positive and negative inputs at the same time that
would not necessarily result in a stable local security environment.
Conclusions
This article presented a literature review of a global security concept. After explaining its
origins and aims, it explored its space within various disciplines, from political science,
over sociology, to criminology. The use of the concept has been diverse, both from the
point of the view of the topics and geographically. It has been employed to address issues
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Global Security Assemblages: mapping the field
Jovana Jezdimirovic Ranito
so distinct as policing, border control, extractive industry, gender roles, and security
governance. Geographically, it covered Africa, Europe, and the Middle East.
We presented the benefits of using this approach as an alternative to actor-network
theories and security governance approaches that have dominated academic literature
concerning the analysis of private security actors. It provided the openness to study
dynamics of private and public actors and their practices, to learn from empirical data,
and to go beyond power relations analysis and set aside private-public and global-local
divisions, just some to name. In a decade of its use, it is a valuable tool academics use
to think about relations of private security at places that defy previously established
concepts and dichotomies.
The concept as a thinking tool has been useful as an inspiration to others to set their own
adaptations, like Kaldor’s global security cultures or Collier’s global cyber security
assemblages.
Hence, there are some challenges it has come across, as every growing complexity of
actors, dynamics, and settings in which we can observe security assemblages, such as
more hybrid forms, which include other non-state actors, the change of dynamics within
and between them, as well as more volatile settings are just some of them. Those
challenges represent a window of opportunity to explore further options as an inspiration
to others to look at it as a departing thinking tool to form perhaps the possibility to study
those adding complexities in the future.
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OBSERVARE
Universidade Autónoma de Lisboa
e-ISSN: 1647-7251
Vol. 10, Nº. 2 (November 2019-April 2020), pp. 82-91
WHY IS IT IMPORTANT TO USE REGIONAL LENSES WHEN WE LOOK INTO
CIVIL CONFLICTS IN THE MENA?
Samer Hamati
Samer_hamati@yahoo.com
PhD in Economics, School of Economics and Management, University of Minho (Portugal). He was
Visiting Researcher in the Department of Political and Economic Studies, University of Helsinki.
Expert of Social Capital Rebuilding in Syria, Training and Research Institute of Romania. Senior
Researcher of Poverty and Inequality in a UNDP project of Establishing the National Social
Welfare Fund in Syria, United Natons Development Programme Projects, Damascus, Syria.
External Consultant of set the Food Security Strategy of Syria, Natonal Agricultural Policy Center,
Syria. He got a Congratulation Notification approved unanimously from the Portuguese
Parliament since he was the firts Syrian students obtaining PhD from Portugal. He has voluntary
work experience.
Abstract
Investigating different political and social variables in the Middle East and North Africa (MENA)
is receiving more attention between social scientists, particularly in the peace and conflict
institutes. This is due to the uniqueness of the region and to the violent conflicts it has
witnessed for the last decades. These conflicts become intrastate but transitional, hence
transfer into internationalized civil conflicts, and have large externalities exceeding the region
borders. These conflicts show the high connectedness between the MENA countries, and
recently the Arab Spring affirms the ‘contagion effect’ of upheavals in the region. Following
multidisciplinary approach, this research note is a try to explain how much important it is to
study the MENA conflicts from a regional perspective and to present the factors proving the
contagion effects there. We hope that when reading this note, the reader will sufficiently
understand the regional aspects of the MENA conflicts.
Keywords
MENA; Contagion Effect; Civil Conflicts
How to cite this article
Hamati, Samer (2019). "Why is it important to use regional lenses when we look into civil
conflicts in the MENA". JANUS.NET e-journal of International Relations, Vol. 10, N.º 2,
November 2019-April 2020. Consulted [online] on the date of the last visit,
https://doi.org/10.26619/1647-7251.10.2.6
Article received on June 2, 2018 and accepted for publication on Setpember 18, 2019
JANUS.NET, e-journal of International Relations
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Vol. 10, Nº. 2 (November 2019-April 2020), pp. 82-91
Why is it important to use regional lenses when we look into civil conflicts in the MENA?
Samer Hamati
WHY IS IT IMPORTANT TO USE REGIONAL LENSES WHEN WE LOOK INTO
CIVIL CONFLICTS IN THE MENA?
Samer Hamati
Introduction
For decades the MENA region at large has suffered from violence and experienced civil
conflicts leading to a permanent atmosphere of instability. This violence became a normal
way of ruling and transferring power since the modern political foundation of the MENA
by the end of WWI. Skimming the modern MENA history, one can easily notice that there
are shared historical characteristics where conflict trajectories have been similar between
the countries. These shared characteristics extend to the political, social, and economic
lives, establishing authoritarian and paternalistic regimes in the region and posing
particular challenges for transitions and development process. Above all, these
characteristics strengthen the links within this region and bring large interventions
between the newly established states there. Understanding these interventions is key
when studying peace and conflict in the MENA region.
Similar to the global trends, the number of conflicts in the MENA decreased significantly
at the beginning of nineties and the region became stable after Kuwait’s Liberation
Process in 1991. This is clear when skimming the UCDP/PRIO Armed Conflict Database
(Uppsala University, 2015). However, the number of conflicts jumps in the new
Millennium, mainly due to the occurrence of civil conflicts. More specifically, anti-colonial
and interstate conflicts have almost disappeared, and almost all of today’s wars are
interstate ones but with large international interventions, making them ‘internationalized
civil wars’. Moreover, these conflicts have been proxy-wars (Marshall, 2016). Pre-1990
conflicts were part of the Cold War with factions receiving support from their allies in
Moscow or Washington. Starting from the end of Nineties, the competitors became
regional and a cycle of regional proxy warfare, especially between Saudi Arabia and Iran,
emerged (Nerguizian and Kasting, 2013). Conflicts in Syria, Iraq, Yemen, Bahrain, and
Lebanon are clear examples.
The new waves of post-Arab Spring violence raise the awareness of civil conflicts
exploding in the MENA region. It becomes clear that these conflicts are not purely ‘civil’;
besides, their consequences have gone beyond the MENA borders. Ross et al. (2011)
argue that the Arab Spring affirms the ‘contagion effect’ of upheavals in the region. Based
on reviewing the literature, the current note discusses the factors proving this contagion
and emphasizing the regional perspective when investigating the civil conflicts in the
MENA. We first briefly discuss this term, the MENA, and then we explain some
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Why is it important to use regional lenses when we look into civil conflicts in the MENA?
Samer Hamati
characteristics of the MENA civil conflicts that make studying them key to support global
peace and prosperity. We later clarify why it is better to look at these conflicts from a
regional window. To do so, we follow multidisciplinary approach of analysis using brief
social, economic, cultural, familial and historical anecdotal evidence. The note closes with
two important notices.
What do we mean by the MENA?
The term the Middle East appeared centuries after the western concern of this region had
increased. Since the Crusades, East, Orient, was identified with Islam and West,
Occident, became identical with Christianity. The regions were thus symbolically divided
according to two belief systems. Later, in the last quarter of the Eighteenth Century,
Europeans referred to the territories controlled by the Islamic Ottoman Empire as the
Near East, while Mahan and Chirol used the term the Middle East to call the Gulf of Aden
and India in separate articles published in 1902 (Davison, 1960). Due to the political
changes after WWI, a need to change the definition of the geographical area referred to
as the Middle East appeared, and in March 1921, Winston Churchill, with the help of the
Royal Geographical Society, was re-mapping the Middle East from the Bosporus to the
western borders of India (Özalp, 2011). Later, this term appeared frequently in
international literature.
However, notwithstanding the adoption of the term the Middle East in the international
literature, there is no a common agreement on the extension of the geographical areas
and the Middle East countries (Johannsen, 2009). Scholars have included different
countries, although overlapped, when using this phrase. Many consider it the countries
that were occupied by the Ottoman Empire (Tunçdilek, 1971; Brown, 1984; Tibi, 1989),
others referred to it as the Islamic countries (Steinbach, 1979), some consider it as
limited to the Arabic countries (Hudson, 1976), and a few have included more African
countries such as Ethiopia (Davison, 1960). The major part of the recent literature define
the MENA region as being made up of the Arabic countries, i.e., the twenty-two countries
members of the Arab League, in addition to three non-Arabic countries whose actions
contribute to the political and security situations in the MENA region: Turkey, Iran, and
Israel, even though these states followed a somewhat different historical trajectory from
the Arab states and have different economic structures that in the Arab countries (Owen,
2013).
What does make civil conflicts in The MENA globally important?
Not only just one factor makes civil conflicts in the MENA with global attention. Conflicts
there last and their consequences are large and tragic. Nevertheless, the MENA position
is the major reason for this global attention. Due to its strategic geographical position,
the MENA region has witnessed many events whose causes and consequences have gone
beyond its borders. Barakat (1993: 31) stated that “The centrality of the Arab World in
ancient and modern times has qualified it to serve as an important nodal point in human
history. It has acted as a passage connecting Asia, Africa, and Europe. It has produced
some of the most important intellectual, cultural, and religious contributions of recorded
history. It is this position at human and geographic crossroads, and not merely its oil and
other resources that makes the Arab World so strategically significant”. As a consequence
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Why is it important to use regional lenses when we look into civil conflicts in the MENA?
Samer Hamati
of this central geographical position, conflicts have been frequent and characterized by
attributes that make them distinctive from those occurring in other regions:
sustainability, bloodiness, tragic consequences, and externalities.
Civil conflicts are sustainable in the MENA region. Parallel to internal conflict occurrence,
a phenomenon referred to as the ‘conflict trap’ became more dominant. This trap refers
to a situation when a post-civil conflict country falls again in another civil war. Walter
(2015) finds strong evidence of a ‘conflict trap’; 57% of all countries that suffered from
one civil war during the 1945-2009 period experienced at least one conflict thereafter.
Furthermore, she points out that by the 2000s, 90% of all civil wars were repeated civil
wars. Moreover, Collier (2007) shows that the risk of further conflict in countries emerging
from civil war is almost twice as high as it was on the eve of that conflict. Further, Cevik
and Rahmati (2015) find that this trap in tighter in the MENA region since countries in
the Middle East appear to suffer from a high risk of conflict recurrence without much
decline over subsequent years, leading to a sustainable sense of violence and insecurity
there. This sustainability is one reason that increases the costs of MENA conflicts.
Civil conflicts in the MENA are costly in both terms: blood and money. The Syrian crisis,
which is considered the “worst man-made disaster the world has seen since World War
II”, according to a UN officer (Al-Hussein, 2017), is recent top evidence for these costs;
around 11.5% of the population were killed or injured in less than five years of conflict
(SCPR, 2016). Besides, the region accounts for 40% of the estimated global total of
battle-related deaths since 1946, according to the Uppsala Conflict Data Program.
Regarding the high economic costs, Rother et al. (2016) argue that three years of
conflicts following the Arabic Spring led to GDP losses of 6 to 15 percentage points in the
MENA conflict countries compared with 4 to 9 percentage points worldwide.
These costs, furthermore, are not limited to the region, and other international costs
appear. Indeed, the MENA conflicts generate large externalities represented by refugee
outflows and energy-price fluctuations. Around two-thirds of current refugees worldwide
come from the MENA.
1
Refugees are not simply the unfortunate by-products of war, but
may cause interstate conflicts (Posen, 1996). Salehyan (2008) claims that refugee flows
between states increase the likelihood of militarized interstate disputes (MIDs) through
two channels: Refugee-receiving states are more likely to initiate MIDs as they intervene
to prevent further externalities, and refugee-sending states initiate MIDs as they violate
borders in pursuit of dissidents.
Above all, energy-price instabilities are still the clearest externality caused by conflicts
occurring in the MENA. This region owns 55% of global oil reserves (Guidolin and La
Ferrara, 2010); and therefore any sort of tension there affects prices, output,
employment, and economic growth worldwide. Two abnormal shocks in global economic
graphs are strongly distinctive: one appeared in 1973-1974, and the other arose in 1979-
1980. These shocks stemmed from two events occurring in the MENA region: the 1973’s
October (Yom Kippur) War and the 1979’s Iranian Revolution. Using event study
methodology to analyze the impact of conflict on a selection asset markets, Guidolin and
La Ferrara (2010) find that the Middle East is very important for commodity indices
including oil prices as 73% of conflicts occurring in this region have an impact on oil
futures, and this impact is distinguishable from zero.
1
UNHCR. (2018, May 25). Figures at a Glance. Retrieved from: http://www.unhcr.org/figures-at-a-
glance.html
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Why is it important to use regional lenses when we look into civil conflicts in the MENA?
Samer Hamati
Why Is It Important to Study Civil Conflicts through Regional Context?
The MENA countries are connected geographically, economically, and culturally showing
a strong tendency for connectedness and contagion. The famous words of Elias Hrawi,
the former President of Lebanon, when describing the civil conflicts in his home: “it was
not our conflict, but others’ in our land,” attest to this (Atallah, 2008: 217). Therefore,
one cannot investigate any civil conflict there in isolation from the regional context. This
political and security interference is not just because of the common borders, but also
because of the strong connections of their people where the majority hold similar beliefs,
culture, and religion and share the same history.
The historical and cultural roots of connectedness are too deep and long. During the
thirteen centuries preceding WWI, the majority of the region’s territories were controlled
by different powers that ruled through one ideology, Islam. The Ottoman Empire was the
last great state controlling the region. Its fall finished the Caliphate and paved the way
to construct modern artificial countries that host people sharing a common history,
culture, alphabet, feelings and demographical connections including tribal relationships.
Heydemann, as quoted in Yousef (2004: 95), points out that, “the region’s exceptionalism
is a recent phenomenon and in no sense a cultural one derived from intrinsic beliefs,
values and norms in Arab-Muslim societies.” These sharing values and senses prevent
the creation of different identities in new-born societies, hence they validate Anderson’s
theory of ‘imagined communities’ (Anderson, 2006); communities within the Middle East
are similarly produced, and engineer similar power hierarchies between them, leading to
a strong collective imagining.
The establishment of the MENA modern states by the end of WWI explains the main part
of this connectedness. The Allies, who won WWI, including Britain and France, divided
the Arabic territories formerly occupied by the Ottoman Empire. Later, these colonial
powers would create the key structures and the public management of the new states.
Owen (2013: 9) discusses this development:
“As far as the Middle East was concerned, it was generally the
dominant colonial power that first created the essential features of
a modern state, by giving it a centralized administration, a legal
system, a flag and internationally recognized boundaries. In some
cases this was done on the basis of some pre-existing administrative
entity, as in Algeria; in others it involved either detaching a part of
a former Ottoman province (for example, Trans-Jordan) or, more
usually, adding several provinces together (for example, Syria and
Iraq). This gave many of the new states a somewhat artificial
appearance, with their new names, their new capitals, their lack of
ethnic homogeneity and their dead-straight boundaries that were so
obviously the work of a British or French colonial official using a
ruler.”
These new states, with ill-defined nature (Milton-Edwards and Hinchcliffe, 2007), host
people that belong to different ethnic, linguistic, and religious groups. Barakat said that
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Why is it important to use regional lenses when we look into civil conflicts in the MENA?
Samer Hamati
“[c]ertain communities were imposed on others within the same country” (1993: 6). One
year after the civil conflict erupted in Lebanon, Anne Sinai and Chaim Waxman argued in
the introduction to the Middle East Review (1976: 5):
“[T]he current civil war in Lebanon is but the latest and most
publicized in a broad range of events and situations which belie the
contention that the Middle East is a unitary world of Arabs with a
common background, culture, language and identity. The Middle
East in fact consists of an intricate mosaic of different peoples...
There are Shi'ites... Alawites, Druze, Yazidis, Isma'ilies and followers
of various other Muslim denominations, who cling determinedly to
their own style of faith and their own set of beliefs. They are not
even necessarily ethnically ‘Arab,’ being the descendants of many
different peoples conquered and converted by the Islamic armies...
The first of the three great monotheistic religions, Judaism, and the
people with whom it is identical, have been part of the Middle East
mosaic from their beginning... There are, in addition... other small
religious groupings, each clinging to its own distinctive identity. No
Arab state, thus, can claim societal homogeneity and all consist of
major and minor religious, linguistic and ethnic groupings.”
This heterogeneity created socially and culturally incomplete entities where ethnic and
religious groups, as well as tribes and families, were divided between adjacent countries.
Religious heterogeneity dominates other types of heterogeneity in the region. This
heterogeneity has been coupled with discriminative procedures towards minorities. Fox
(2013) finds that almost all the religious minorities in 17 Middle Eastern Muslim majority
states experience religious discrimination. The literature shows that this discrimination,
as well as other sorts of persecutions, can provoke surrounding countries to intervene in
other countries to protect their ethnic kin (Saideman, 2001; Trumbore, 2003; Woodwell,
2004). Svensson (2013) finds a massive shift from nonreligious to religious conflict in
the MENA region, making it the world region where religious armed conflict is most
prominent. Svensson (2013) also argues that religious conflict in the MENA is long and
transitional.
Furthermore, current economic ties, especially employment, support the social and
cultural roots and make people of different MENA countries more connected. Millions of
the migrant MENA labor force work in the rich Gulf countries, and their remittances
support their families and their governments in their homelands. These remittances are
not only financial but also social, meaning that migrants transfer new ideas, values, and
behavior to their home countries (Levitt, 1998) having an influence on political attitudes
and behavior of families staying in the homelands. Investigating the diffusion of political
Salafism among Egyptians working in Saudi Arabia, Karakoç et al. (2017) find that the
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Why is it important to use regional lenses when we look into civil conflicts in the MENA?
Samer Hamati
strongest support for the Nour Salafism Party came from individuals whose family
members had immigrated to Saudi Arabia.
2
Intra-trade and investment flows are other economic ties supporting Arabic
connectedness. According to reports published by the Arab Monetary Fund (2017), many
Arabic countries heavily rely on trading with other Arabic countries. Somalia, Djibouti,
Jordan, Lebanon, Syria, Egypt, and Sudan export 91%, 85%, 50%, 45%, 40%, 32%,
and 30% of their total exports respectively to other Arabic countries, while the intra-Arab
investments jumped from 3% to 15% of the total Arabic GDP between 2000 and 2008
due to oil-price booms.
Historical evidence confirms how much strong is the links between MENA countries, in
particular, the Levante. We depict these strong connections by presenting two
assassination murders happened in Summer 1951. On July 17, Riad Al-Solh, the first
Prime Minister of Lebanon after independence, was assassinated in Amman, the capital
of Jordan, by Micheal El-Deek, a Syrian person. Three days later, King Abdullah I, the
first Jordanian King, was assassinated in Jerusalem by a Palestinian tailor. King Abdullah
might have not been killed had he become a King of Iraq, as it was supposed. This point
brings us to another important scope that confirms the strong regional links in the
MENA. It is about tracing the lineages between elite families.
Genealogy is important between Arab tribes. Thus, it is key to understand the kinship
between royal families in the region. Hussein bin Ali, Sharif of Mecca and the leader of
Hashemites, allied with the British and rebelled against Ottomans. Two of his sons
became kings: Faisal for Syria, and then Iraq, and Abdullah for Jordan. Another son,
Ali, was the last King of Hejaz before he was defeated by his Ibn Saud, the founder of
the Kingdom of Saudi Arabia.
We find a similar kinship but between Arabic political parties. Pan-Arabic nationalism
parties have emerged during the last century, and many of them believes in the unity
of Arabic countries. Take for example, Ba’ath Party in Syria and Iraq; Arab Socialist
Union in Egypt; Popular Conference Party in Libya; and Socialist Party in South Yemen.
All of these parties have been in power in their countries for years. Some had a friendly
relation with others, and some were bad enemies. Ba’ath was the ruling parties in both
Syria and Iraq, but the two factions were under strong conflict for decades.
Combined with soft budget constraints in the oil-exporting countries, these strong
interconnections facilitate inter-country interventions. Above all, the military rule,
common in most of the MENA countries, intensifies this trend. The domination of military
rule over national political system in the region can be proved by the large number of
military coups and revolutions. Milton-Edwards and Hinchcliffe (2007: 4) point that this
“militaristic nature of the state in the region has a direct cause-and-effect relationship on
the political processes of countries” there, and Picard (1993) argues that the statist
preferences, mass politics, and anti-colonial struggles which existed in the post-Ottoman
Middle East, lead to strong involvement of the military in politics. Those military
governments appear to operate according to a logic of expansion and hence intervene in
the political life of neighboring states.
2
Nour Salafism Party, which means Party of The Light, is one of the political parties created in Egypt after
the 2011 Egyptian Uprising. It has an ultra conservative Islamist ideology, which believes in implementing
strict Sharia law.
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Samer Hamati
Final Remarks
Watching daily news, the western observer is becoming aware of the violence appeared
in the MENA region. Indeed, Karl Remarks’ statement: “and then God created the Middle
East and said, let there be breaking news and analysis”, which became the title of his
recent book published in 2018, attests to this. However, the western observer might be
confused by the high degree of connectedness between these violent events. The
current note, therefore, tries to shed light on the reasons behind this connectedness.
It followed a multidisciplinary approach to explain why the domino effect has appeared
in the region and why we should look at conflicts there, including civil wars, from a
regional perspective.
It is important, before closing this note, to mention two important points. First, although
unique as discussed in this note, the MENA region is a part of the Third World, hence it
is subject to the same universal process of underdevelopment as other Third World
countries, and one should put that in his mind when investigating conflicts there. In the
preface of his book, Owen warns researchers not to explain everything happening in
the MENA “by the fact that the majority of its people are Arab or Muslims who, until
becoming rich from oil, lived as tribes in deserts” (2013: xii). Looking deeply at other
conflicts in other regions of the world, for example, Sub-Saharan Africa, South Asia,
the Balkans, and Latin America, many similarities can be seen within the reasons and
consequences of civil conflicts.
Secondly, scholars should not ignore the specific characteristics of individual MENA
countries. These countries are heterogeneous in terms of both economic and
institutional development. One can easily notice this by skimming the economic figures
and, more importantly, the human development index (UNDP, 2018). While all GCC
countries are classified as very highly developed, Syria, Sudan, Yemen, Djibouti,
Somalia, and Mauritania are classified in the lowest rank.
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OBSERVARE
Universidade Autónoma de Lisboa
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Vol. 10, Nº. 2 (November 2019-April 2020), pp. 92-109
CHINA'S COOPERATION IN AFRICA IN THE AREA OF PHYSICAL CONNECTIVITY
INFRASTRUCTURE. THE CASE OF THE MOMBASA-NAIROBI RAILWAY LINE
María Noel Dussort
maria.dussort@fcpolit.unr.edu.ar
PhD in International Relations at the National University of Rosario (UNR). Postdoctoral Fellow of
the National Council of Scientific and Technical Research (CONICET, Argentina). Professor at the
Faculty of Political Science and International Relations of the UNR and Coordinator of the Study
Group on India and Southeast Asia of Rosario (GEIRSA). Researcher of the Studies Program on
South-South Relations and Cooperation (PRECSUR) of the UNR. Research line: Energy security -
emerging powers, Brazil, India and China - oil producing countries of sub-Saharan Africa.
Agustina Marchetti
agustina.marchetti@fcpolit.unr.edu.ar
PhD in International Relations from the National University of Rosario (UNR). Doctoral Fellow of
the National Council of Scientific and Technical Research (CONICET, Argentina). Professor at the
Faculty of Political Science and International Relations of the UNR and Coordinator of the Study
Group on Latin America and Africa (PEALA). Researcher of the Studies Program on South-South
Relations and Cooperation (PRECSUR) of the UNR. Research line: China - Africa - South-South
cooperation.
Abstract
In the 21st century, China proposes a cooperation scheme with its own characteristics. In
relation to the cooperation projects that China has been carrying out in the African continent,
an exponential growth of infrastructure works was observed that has contributed to the
improvement of the socio-economic conditions of Africa. In this context, it is worth asking,
what distinctive characteristics does Chinese cooperation in infrastructure have that makes it
so attractive to African countries?
For the purpose of answering this question, we propose to analyse the link that Beijing has
established with the African countries, specifying the characteristics its cooperation scheme
presents. Likewise, the priority areas around which cooperation projects are directed and their
financing modality are investigated. Secondly, we consider the construction of one of the
sections of the railway in Kenya (Mombasa-Nairobi project) under the Belt and Road Initiative
(BRI) as a typical case of China's infrastructure cooperation in an African country.
Keywords
China, cooperation, infrastructure, BRI, Kenya
How to cite this article
Dussort, María Noel; Marchetti, Agustina (2019). "China's cooperation in Africa in the area of
physical connectivity infrastructure. The case of the Mombasa-Nairobi railway line".
JANUS.NET e-journal of International Relations, Vol. 10, N.º 2, November 2019-April 2020.
Consulted [online] on the date of the last visit, https://doi.org/10.26619/1647-7251.10.2.7
Article received on April 4, 2018 and accepted for publication on September 20, 2019
JANUS.NET, e-journal of International Relations
e-ISSN: 1647-7251
Vol. 10, Nº. 2 (November 2019-April 2020), pp. 92-109
China’s cooperation in Africa in the area of physical connectivity infrastructure.
The case of the Mombasa-Nairobi railway line
María Noel Dussort, Agustina Marchetti
CHINA'S COOPERATION IN AFRICA IN THE AREA OF PHYSICAL CONNECTIVITY
INFRASTRUCTURE. THE CASE OF THE MOMBASA-NAIROBI RAILWAY LINE
1
María Noel Dussort
Agustina Marchetti
Introduction
Since the end of the nineties, it has been observed that China has displayed great
international activism in all regions of the world and in most thematic areas, which have
allowed it to gain greater prominence in the international system. In this sense, although
the countries of Africa are not crucial in their expansion strategy ‘outside borders’, the
truth is that they have gained priority in the design of their foreign policy.
Simultaneously to its internal modernization process, since 1999 the construction sector
in China has grown by 20% annually, making this country the largest infrastructure
market in the global economy. While Africa shows an unsatisfied demand in this regard
as well as in the financing to undertake the necessary works, Beijing has not only
accumulated substantial financial reserves but has become a global leader in construction
services, with great experience in civil infrastructure development (Johnston, 2016). In
other words, the complementarity is evident.
On the other hand, it should be considered that China's infrastructure cooperation in
Africa is presented as an alternative to Official Development Assistance (ODA) provided
by traditional powers, discursively governed under the Principles of Peaceful
Coexistence
2
. However, in practice the "mutual benefits" are not tangible enough. It
becomes questionable that the Asian country, being the second most important economy
worldwide, claims to cooperate "on parity of conditions" with African countries by
recognizing itself as a developing country.
In the new century there was a strong advance of Chinese state-owned companies in
different infrastructure construction projects in the African continent. To some extent,
this involvement of China in cooperation projects has contributed to the improvement of
the economic and social conditions of African countries. Given this scenario, it is worth
1
The translation of this article was funded by national funds through FCT - Fundação para a Ciência e
a Tecnologia - as part of OBSERVARE project with the reference UID/CPO/04155/2019, with the aim of
publishing Janus.net. Text translated by Cláudia Tavares.
2
They are analysed on the following pages.
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Vol. 10, Nº. 2 (November 2019-April 2020), pp. 92-109
China’s cooperation in Africa in the area of physical connectivity infrastructure.
The case of the Mombasa-Nairobi railway line
María Noel Dussort, Agustina Marchetti
asking: What distinctive characteristics does Chinese cooperation have that makes it so
attractive to African countries? What are the priority areas to which cooperation funds
are directed? What interests are seen in infrastructure cooperation projects for African
countries, particularly sub-Saharan Africa? And finally, infrastructure works, who really
benefits?
In order to answer these questions, we intend to analyse, at first, the characteristics that
the cooperation between China and Africa presents, investigating the priority areas
around which the cooperation projects are directed and the modality of financing of those
projects. In a second moment, we consider the construction of one of the sections of the
railway in Kenya (Mombasa-Nairobi project
3
) within the framework of the Belt and Road
Initiative (hereinafter BRI) as a typical case of China's infrastructure cooperation in an
African country.
It is important to note that the academy is divided among those who consider China as
an emerging power (Stuenkel, 2018; Ikenberry and Lim, 2017; Xing and Shaw, 2016;
Zeng and Breslin, 2016; etc.) and those who claim that it has already become an emerged
power in the current international order (Oviedo, 2019; Muñoz, 2019; Borella, 2019).
Consequently, it is based on the presumption that as China transforms form “emerging
to emerged”, its infrastructure projects conceived as part of the conceptual umbrella of
South-South Cooperation (CSS) are losing the solidarity character, to form a global
strategy that bears similarities with British Pax
4
. In this sense, the cooperation that China
makes in the countries of Africa has changed depending on the evolution and deepening
of the development model that is going through its economy, characterized by being a
fundamentally financial cooperation – expressed in loans (concessional and non-
concessional), foreign direct investment, subsidies, etc.
On the other hand, these infrastructure projects have been framed in the BRI, being
erected as a megaproject of interstate connectivity that aims, on the one hand, to
stimulate trade and, on the other hand, to boost Chinese productive capacity abroad;
objectives backed by large financial capital.
It is worth noting that, for the development of this work, a qualitative methodology using
the technique of triangulation of statistical data issued by various international
organizations (World Bank, OECD, Infrastructure Consortium for Africa) was applied and
by the national governments worked here (Kenya, Exim Bank of China, White Papers de
China, African Policy Paper de China). The temporary cut focuses on the period from
2000 to 2017, focusing on the coming to power of Xi Jinping and with it, a more assertive
action in Chinese foreign policy. In this regard, it is worth noting two events that illustrate
this, such as the launch of the BRI in 2013 and the achievement of the “Forum a Strip
and a Route for international cooperation” in 2017.
3
It is important to clarify that in the present work we opted for the definition of Mombasa-Nairobi as a way
of designating the railway project, which coincides with that adopted by Kenya. This decision is due to
geographical orientation, when going from the coast of the Indian Ocean to the interior of the continent.
4
British Pax refers to the historical period in which the British Empire extended its dominance worldwide,
characterized by control of maritime trade and the extension of rail networks in its colonial territories and
priority trading partners (such as Argentina).
JANUS.NET, e-journal of International Relations
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Vol. 10, Nº. 2 (November 2019-April 2020), pp. 92-109
China’s cooperation in Africa in the area of physical connectivity infrastructure.
The case of the Mombasa-Nairobi railway line
María Noel Dussort, Agustina Marchetti
1. Africa in China's foreign policy: a look at the political and economic
dimensions
Since the mid-1990s, the People's Republic of China began a process of intensifying ties
maintained with African countries, guided by fundamentally economic interests. In this
sense, the attention given to the Chinese presence in African countries from the
beginning of the 21st century is directly related to the qualitative leap of this relationship
in the world economy, becoming a cause for concern (and criticism) for the interests of
traditional powers (Visentini, 2013). However, it should not be forgotten that the
extension of its diplomatic relations in the continent is functional to its objective of
isolating Taiwan internationally, by imposing its “one China only” policy.”
5
.
Under this repertoire, the foreign policy of the People's Republic adopted the principle of
“towards all directions”, which theoretically does not imply differentiation between
geographical regions or continents. Likewise, China's speech as a developing country, the
foundational basis of its foreign policy, intensified. While in practice the great powers and
their regional environment are crucial in the design of the external agenda
6
, Africa has
kept some priority (Yun, 2014: 13).
In the new century, the diplomatic activity of the Chinese government towards Africa has
been intense and high-level, both bilaterally and multilaterally. In chronological terms it
is necessary to mention as a first step the launch of the China-Africa Cooperation Forum
(FOCAC) in October 2000
7
, initial framework that channelled and gave impetus to the
actions of the People's Republic of China. Two legal instruments emanated from that first
multilateral meeting, the Beijing Declaration and the Program for Sino-African
Cooperation for Economic and Social Development, which became the political axes that
guided Chinese intentionality (Li et al, 2012).
The Beijing Declaration (2000) stated that the forum was a framework for collective
dialogue on the pillars of equality and mutual benefit, recognizing themselves as
developing countries. In addition, the Five Principles of Peaceful Coexistence were
mentioned as well as the principles of the UN and AU Charter. In the attached program,
the areas of cooperation were detailed, including: trade and investment; infrastructure
projects; financial cooperation; debt relief; tourism; migration; agricultural cooperation;
exploration and use of natural resources and energy; cultural cooperation; scientific and
technological, public health, education and human resources development;
environmental and biodiversity management and arms control. Subsequently, at the
second FOCAC ministerial meeting in 2003
8
in Addis Ababa (Ethiopia) a new Action Plan
for the period 2004-2006 was adopted, which sought to improve the implementation of
the previous documents.
5
This principle of Chinese foreign policy implies that those countries that recognize Taiwan must break
diplomatic relations in order to establish them with the People's Republic of China.
6
For illustration, China's main trading partners in the world are the United States, the European Union, the
Association of Southeast Asian Nations (ASEAN), Japan and Hong Kong (Information taken from
https://oec.world/en/profile/country/chn/ - Consulted on 27-09-2019).
7
The first ministerial summit was held in Beijing and was attended by 44 ministries of African countries
(ministries of foreign affairs and trade) and officials from 80 Chinese ministries. The first leaders of Togo,
Algeria, Zambia, Tanzania and the Secretary General of the African Union also attended. Information
extracted from Ministry of Foreign Affairs, China
https://www.fmprc.gov.cn/zflt/eng/gylt/dyjbzhy/t157577.htm [Consulted on 05-09-2018].
8
On this occasion, 44 African countries participated again.
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Vol. 10, Nº. 2 (November 2019-April 2020), pp. 92-109
China’s cooperation in Africa in the area of physical connectivity infrastructure.
The case of the Mombasa-Nairobi railway line
María Noel Dussort, Agustina Marchetti
The actions mentioned in the previous paragraph are important as they were the guide
of Chinese actions towards African countries until 2006, the year in which the first policy
paper on Africa was published. That report and the holding of the third ministerial
conference of FOCAC
9
led to classify it as the "Year of Africa" for China. With this, the
continuity granted to the treatment of the African theme can be observed. Also, in 2010
a White paper entitled “China-Africa Economic and Commercial Cooperation” was
released, which was followed by a second edition in 2013, already under the change of
administration in the hands of Xi Jinping. On the other hand, between 2003 and 2014,
two other White papers were issued on “Chinese foreign aid” in 2011 and 2014
respectively, where the privileged place of African countries was explained in Beijing's
South-South cooperation policy (detailed below).
The transfer of the government of Hu Jintao to Xi Jinping kept the Chinese policy for
Africa unchanged. For Xi, the consolidation of friendship with African countries reinforces
the Chinese identity of a developing country and its goal in achieving the democratization
of international relations and a new international order (Yun, 2014: 13). In 2015, the
second policy paper on the Chinese position in Africa came to light, repeating the
principles and areas of cooperation established in 2000. It only innovated by boosting
the category of comprehensive strategic partnership between the actors involved (The
People’s Republic of China, China's second Africa policy paper, 2015).
In this regard, Beijing has a hierarchical gradation by which, as ties intensify, the
relationship is scaled to a greater position. In this sense, the links start from the lowest
gradation to the highest. Comprehensive strategic partnership, then, is the highest
condition that a relationship can achieve (Malena, 2015). However, the Asian country has
also deepened the link with certain African countries officially
10
.
As for the commercial exchange, China advanced steadily from 2000 onwards,
consolidating itself as the main trading partner of the continent in 2009 (The People’s
Republic of China, 2013). More specifically, in 2013 China became the first export
destination of the Sub-Saharan Africa region, surpassing the European Union and the
United States - traditional partners of African countries - who went on to take second and
third place (Pigato and Tang, 2015: 6). In 2017, the total China-Africa trade volume
reached 139 billion dollars (World Integrated Trade Solution, World Bank online). The
main destinations for Chinese goods were South Africa and Nigeria, while the largest
exporters were Angola, South Africa and Sudan (China Africa Research Initiative online;
MOFCOM, The People’s Republic of China online).
When analysing the composition of trade, it is observed that it is based on the import of
raw materials from African countries and the export of high value-added products. China's
imports from sub-Saharan Africa are concentrated in extractive resources such as the
crude oil that tops the list. Simultaneously, the People's Republic exported to this region
a most diversified production. The highest percentage was met by capital goods
(machinery, transport equipment), followed by textiles. The transition to the purchase of
9
As of the third ministerial conference of the FOCAC, the action plans included specific actions rather than a
score of intentions. That is why, from 2006 onwards they will be worked on in chapter VI, corresponding to
cooperation.
10
Beijing has signed, then, “Comprehensive strategic cooperative partnership” with the Republic of Congo;
“Comprehensive strategic partnership” with South Africa, Algeria and Egypt; “Strategic partnership” with
Nigeria, Angola, Sudan and the African Union; “Comprehensive cooperative partnership”, With Ethiopia,
Gabon and Tanzania and finally, “Long term friendship and cooperative partnership”, with Senegal (Li and
Ye, 2019).
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China’s cooperation in Africa in the area of physical connectivity infrastructure.
The case of the Mombasa-Nairobi railway line
María Noel Dussort, Agustina Marchetti
this type of products - which previously came from the United States or the European
Union - is because they are more accessible in terms of costs, making them more
attractive.
China's Foreign Direct Investment (FDI) in Africa has increased substantially since 2003,
reaching a peak in 2008, then declining as a result of the international financial crisis.
FDI is distributed in all sectors of the economy, within which infrastructure has been
increasing exponentially. Regarding sector distribution, although Chinese capitals have
varied destinations, the extractive industries were the predominant ones at first,
exceeding 30% of the total, followed by construction and the financial and manufacturing
sectors (The People’s Republic of China, 2010 and 2013; Pigato and Tang, 2015: 11).
FDI in the Asian country has grown from 1.000 million dollars since 2004 to 35. 000
million in 2015, representing an average annual growth rate of 40% (Sun et al., 2017:
20). In the region, the main recipient countries have been Angola, Kenya, Congo (DRC),
South Africa and Zambia. In 2017, Chinese investment in Africa reached 4,100 million
dollars, which meant a year-on-year increase of 70.8% but representing only 2.6% of
China's total FDI flows in the world. That said and considering that Asia accounted for
69.5%, Europe 11.7% and Latin America 8.9%, there should not be an overvaluation of
the place that Africa occupies in the distribution of FDI from China at the level global
(Ministry of Commerce, The People’s Republic of China, 2017: 96).
Beijing has a battery of government tools to deploy its economic interests in the countries
of Africa, many of which were specified or proposed in the framework of the China-Africa
Cooperation Forum (FOCAC). Among them, bilateral investment treaties with 32 African
countries, zero tariff agreements on some exports with the Least Developed Countries
and debt relief. Second, in 2006 and as part of one of the commitments established in
the FOCAC, the China-Africa Development Fund was inaugurated, created by Chinese
financial organizations to provide special support to national companies interested in
investing in Africa. Finally, it is interesting to announce that China has promoted the
installation of “special economic zones” in African territory - formulating the experience
in its own country - in which Chinese companies take over the infrastructure. Finally, it
is important to mention the Chinese financial institutions from which most of the loans
emanate: China Development Bank, Export-Import Bank of China, Industrial and
Commercial Bank of China, Bank of China and China Construction Bank (The People’s
Republic of China, 2010 y 2013).
In other words, China has been deploying a multidimensional strategy in Africa in the
21st century. Here is noted, in particular, the type of cooperation that Beijing directed to
African countries in order to demonstrate the crucial interest it has had in the
development of infrastructure works.
2. China's cooperation in Africa: large infrastructure works at the
centre of the scene
The character of the Chinese CSS evolved along with its own internal dynamics and based
on its external insertion needs. The political objective of strengthening and developing
friendly cooperation with all developing countries, including especially African countries,
has been an important component of China's foreign policy for long (Shelton, 2006). To
understand the CSS of China in the 21st century, it becomes necessary to take a brief
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China’s cooperation in Africa in the area of physical connectivity infrastructure.
The case of the Mombasa-Nairobi railway line
María Noel Dussort, Agustina Marchetti
tour to the recent past of the link established with Africa.
Specifically, at the dawn of the People's Republic, solidarity action responded to the need
to obtain recognition from the international community as the legitimate government of
all of China, and in turn, it was an ideological tool to internationalize communism in the
world. So much so that this country began transferring grain, cotton or industrial
materials to countries of the socialist orbit (North Korea and North Vietnam) in 1950.
That is why the conception of Chinese cooperation arose closely linked to the relationship
that the Asian country had with Third World countries, mainly with Africans.
The 1955 Bandung Conference - an event that marked the emergence of the countries
of the South in a rigid bipolar order - and the Principles of Peaceful Coexistence
11
that
emanated from it, helped to inform and give confidence to the relations that Beijing was
trying to establish with those Afro-Asian nations. Taking advantage of the spirit of
Bandung that gave impetus to the first links of communist China with African countries,
Prime Minister Zhou Enlai in 1963 enunciated in Sub-Saharan Africa “The Eight Principles
for Economic Aid and Technical Cooperation for other countries”, which have guided
Chinese cooperation to the present. In other words, "the philosophy of Chinese aid" can
be summed up in four keywords: self-sufficiency, non-interference, infrastructure works
and mutual benefit (Shimomura and Ohashi, 2013: 220). The most striking example that
has transcended relations between China and the African countries was the construction
of the railway between Tanzania and Zambia (TAZARA) during 1967 and 1975
12
.
Given the period of introspection that China started going through in the eighties due to
the process of economic reforms implemented by Deng Xiaoping, the motivation to
maintain or increase the CSS decreased. The following decade is known as the return of
China to the countries of the Global South as part of its international reintegration
strategy post Tiananmen massacre , a return enthroned by Jiang Zemin's visit in 1996
to six African countries
13
where the principles of Sino-African cooperation were
highlighted again, guidelines that would lay the foundations of the China-Africa
Cooperation Forum (FOCAC) established in the year 2000, as previously mentioned.
During the first decade of the 21st century, there was a resurgence of the CSS that was
due to the new impulse granted by emerging powers such as China. According to the
analysis of the two White papers on Chinese foreign aid, from 2011 and 2014
respectively, a series of issues related to our analysis theme emerge.
In semantic terms, the 2011 document emphasizes the category of “Chinese foreign aid”
as a concept that synthesizes the different forms of cooperation carried out by the Asian
country; which is why it can be considered that there is no longer such a resounding
rejection of the word “help” (aid) in government circles (Grimm et al, 2011: 4). Such
rejection was due to the fact that developed countries had appropriated the concept
11
The five principles of "mutual respect for sovereignty and territorial integrity, mutual non-aggression, non-
interference in the internal affairs of other countries, equality and mutual benefit and peaceful coexistence"
were brought to the conference by China and India. It is worth mentioning that although a proposal of ten
principles emanated from the Bandung Conference, the Five Principles of Peaceful Coexistence are those
recognized by China as the cornerstone of its foreign policy. Information taken from the website of the
Embassy of the People's Republic of China in Costa Rica
http://cr.chineseembassy.org/esp/xwdt/t1173044.htm [Consulted on 31-03-2019].
12
The case of TAZARA is discussed in more detail in the following pages.
13
Kenya, Egypt, Ethiopia, Mali, Namibia and Zimbabwe. Information taken from the website of the Ministry of
Foreign Affairs of the People's Republic of China
http://www.fmprc.gov.cn/mfa_eng/ziliao_665539/3602_665543/3604_665547/t18001.shtml [Consulted
on 24-03-2019].
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China’s cooperation in Africa in the area of physical connectivity infrastructure.
The case of the Mombasa-Nairobi railway line
María Noel Dussort, Agustina Marchetti
Official Development Assistance (ODA). According to the excerpt: “As development
remains an arduous and long-standing task, China’s foreign aid falls into the category of
South-South cooperation and is mutual help between developing countries” (The People’s
Republic of China, 2011: 3). From then on, the foreign aid provided by Beijing entered
into the CSS category, as an umbrella and generic concept that would contemplate
various forms of cooperation among developing countries. Likewise, there was a crucial
difference between the first and the second White Paper: while the former referred to
the "foreign aid", the second is positioned in the term "foreign assistance", restricting the
term “aid” only when it is linked to “humanitarian aid” (emergency humanitarian aid)
(Lechini and Dussort, 2016).
Regarding the modalities acquired by the cooperation offered
14
, since 2000, the most
commonly used have been the so-called “complete projects”, destined mainly to the
sectors of economic infrastructure (transport, electrical energy and telecommunications),
industrial and energy (petroleum, metallurgical and coal production industry). By the
way, the second White paper clarified that while 72.4% of the funds between 2010 and
2013 were absorbed by infrastructure projects, 5.8% were directed to technical
cooperation and cooperation for human resources development (The People's Republic of
China, 2011 and 2014).
Regarding the institutional architecture in charge of international cooperation, historically
the general direction of development assistance policy depended on the Chinese
Communist Party Leading Grouping for Foreign Affairs. The latter and the State Council
[State Council Leading Group for Foreign Affairs] are the highest level administrative
bodies that regulated the agencies responsible for administering cooperation projects:
MOFCOM (which had an Aid department for foreign countries); the Ministry of Foreign
Affairs (MFA); a series of specialized ministries (Ministry of Science and Technology,
Ministry of Agriculture, Ministry of Education, Ministry of Health and Ministry of
Communications) and the International Liaison Office of the Central Committee of the
Communist Party (Chin and Frolic, 2007).
According to Huang and Wei (2015), the Ministry of Foreign Affairs and the Ministry of
Finance had the greatest influence on the foreign assistance policy. But the Ministry of
Commerce was the most important government agency in the execution of Chinese
assistance since 2003. While the Ministry of Finance established the budgetary funds for
aid programs, the Ministry of Commerce was responsible for analysing their viability,
coordinating the process of their implementation through the ministries and carrying out
their review. From the beginning, the Ministry of Commerce nucleated the total
administration of the financial funds. With the creation of EXIM Bank in 1994, this
institution began managing soft loans and the Ministry of Commerce to manage subsidies
and tax-free loans. The Chinese Development Bank, also founded in 1994, provided
financial support to the investments of Chinese companies in developing countries. By
positioning external aid within MOFCOM, the strong economic motivation behind each
project awarded is demonstrated.
Recently, there was an intense academic debate in China in order to provide institutional
alternatives that nucleate cooperation programs. Finally, in 2018 the Xi Jinping
14
From the beginning, they were classified in technical cooperation, human resources training, aid for
humanitarian emergencies, complete projects, materials and goods, medical equipment, volunteer
programs and debt forgiveness. The first three are supported by subsidies, that is, no payment is expected
in return from receiving countries (Mthembu, 2018).
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The case of the Mombasa-Nairobi railway line
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100
government inaugurated the Chinese Agency for International Development Cooperation
(CIDCA) (Huang and Wei, 2015).
Due to the above, it can be understood that historically the financial resources that have
sustained the Chinese SSC have been divided into three types: subsidies (financial
extension without repayment agreement by the beneficiary), loans at zero interest rate
(with a term of 20 years) and soft loans (with a term of 15-20 years and an annual
interest rate of 2-3%). The fact that from 2000 onwards the soft credits have increased,
and the subsidies decreased, also sees the intent of Chinese cooperation.
In geographical terms, the largest recipients of external aid have been the countries of
Africa and Asia, and to a lesser extent, Latin America and the Caribbean, Oceania and
Eastern Europe. However, since 2010 Africa has accounted for 50% of all aid (The
People’s Republic of China, 2011 and 2014).
Simultaneously, it is interesting to compare the above with the analysis made on the
state of infrastructure situation in Africa of other international organizations and think
tanks (Foster et al, 2009; Gutman et al, 2015; The Infrastructure Consortium for Africa
15
-ICA-, 2017). According to the 2009 World Bank report (Foster et al, 2009), it was
announced that between 2000-2007 the two sectors mostly benefited by Chinese capitals
were energy, gathering 33.4% (particularly hydroelectric power) and transport, with
33.2% (especially railways). Beijing's financing commitments remained at an average of
5.000 million dollars between those years, focusing on 70% in Nigeria, Angola, Ethiopia
and Sudan. However, from 2007 to 2012 a certain change in the destiny of Chinese
financing was demonstrated, from countries rich in strategic natural resources - such as
the four previously indicated - to countries that are not. Such is the case that Ghana and
Ethiopia were the largest recipients, followed by Cameroon, Zambia and Nigeria (Gutman
et al., 2015).
Based on the latest ICA report (2017: 16), Chinese investment commitments in
infrastructure works in Africa peaked in 2013, demonstrating that the Asian country
collected the highest percentage of financing for the continent (66% of the total),
surpassing international financial organizations and traditional powers. Within this
framework, the almost 4 billion dollars allocated to the Mombasa-Nairobi railway section
in Kenya were included, the case study that will be addressed below. It should also be
mentioned that the amounts for the analysed sector continued in crescendo, reaching a
value close to 20,000 million dollars in 2017.
In short, of what transpired in the preceding pages, we can say that China's cooperation
was born and developed simultaneously with the relations that the People's Republic
maintained with the developing countries, mainly African. Although initially such an
action was aimed at spreading the Maoist revolution in the Third World, it was
transformed as domestic changes occurred in that country. In this way, Beijing (and its
state-owned companies as executing arms), has become the promoter, financier and
executor of many of the infrastructure projects that African countries need today.
Departing from the assumption of Xi Jinping in 2012, signs of a global foreign policy are
being given, following the launch of initiatives such as the BRI, which gave a central role
15
The ICA is made up of multilateral development banks and regional development banks such as the African
Development Bank (AfDB), the South African Development Bank (DBSA), the European Commission, the
European Investment Bank (EIB), the countries that make up the G8, the Republic of South Africa and the
World Bank Group.
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The case of the Mombasa-Nairobi railway line
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101
to interconnectivity and with it, the extension of the works for that purpose. In the
following pages, the inclusion of the African continent in the initiative and, in this context,
the intensification of the role of China as a state supplier of public goods. Likewise,
progress is being made on the Mombasa-Nairobi project, in an attempt to delve into the
cost / benefit binomial of Chinese development cooperation in Kenya.
3. Interconnectivity, focus of the Belt and Road Initiative
In 2013, Chinese President Xi Jinping during his visit to Kazakhstan announced the
economic belt of the Silk Road (“The One Belt”). The same year and in similar
circumstances in Indonesia he announced the Maritime Silk Road (“One Road”). Both
form what was initially known as the initiative "One Belt, One Road" (OBOR), which is
currently defined as “Belt and Road Initiative”. The economic belt of the Silk Road aims
to link China with Europe through Central Asia and Russia; with the Middle East through
Central Asia and unite China and Southeast Asia, southern Asia and the Indian Ocean.
On the other hand, the Maritime Silk Road focuses on the use of Chinese coastal ports to
link China with Europe through the South China Sea and the Indian Ocean. Africa enters
the scene on the sea route. Although, initially, their participation in official terms was not
entirely clear, in fact some African countries are part of the initiative. However, “only
African countries considered strategic for OBOR, especially those vital to establish and
secure commercial links, would be prioritized by the Chinese government” (Bagwandeen,
2017: 2).
The BRI stands as one of the most ambitious and important programs of the 21st century,
which aims to achieve an integrated economic architecture (Concatti, 2017). Therefore,
it is fundamental for the Chinese government to improve physical connectivity between
the countries involved as a first step. Consequently, a succession of projects aimed at
narrowing the “infrastructure gap has already been launched.”.
With China's global strategy in mind, numerous projects focused on transport
infrastructure were initiated in several African states with the backing of Beijing. In 2009,
the East Africa Railway Master Plan Study (EARMP) was published, in which a report on
the status of the railroads in East Africa was made. EARMP issued a proposal to optimize
their use and increase the volume of tons transported, projecting an increase from 3,700
million in 2007 to 16 million in 2030 (CPCS, 2009). In the updated version of that report,
published by the East Africa Community (EAC) In 2017, the Asian country appeared as
the key actor in the completion of the railway master project.
Beijing promised to lead the formation of Chinese group for Sino-Africa cooperation in
railway and high-speed railway
16
in that region of Africa, which would integrate resources
from financing institutions, railway construction companies and railway operations
management companies. In this way, it can be seen that the Asian giant has been
advancing steadily in the railway sector of the region
17
.
16
For more information see press report of the African Union. Available at:
https://au.int/en/pressreleases/20161010-2
17
At the continental level, progress was made in infrastructure cooperation through the Memorandum of
Understanding between China and the African Union signed on January 25, 2015, which consolidated China's
plans for Africa with the aim of promoting railroad cooperation, roads, regional aviation networks and
industrialization fields. On October 5, 2016, a Five-Year Action Plan was signed at the UA headquarters,
between the African Union Commission (AUC) whose presidency was in charge of Dr. Nkosazana Dlamini
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Four years after the launching of the initiative, China convened the first Belt and Road
Forum for international cooperation -Belt and Road Forum (BRF)- in May 2017 in Beijing,
under the motto “Work Together to Build the Silk Road Economic Belt and The 21st
Century Maritime Silk Road”, in which government representatives from more than one
hundred countries participated. In the opening address, President Xi Jinping emphasized
that the initiative is based on the principles of peaceful cooperation, openness and
inclusion, learning and mutual benefits. He also stressed that there are four major priority
areas of cooperation, all crossed by the principle of "interconnectivity": infrastructure,
commerce, finance and contact between people (people to people connectivity). In this
regard, it is highlighted that the initiative strives to increase cooperation and exchange
in fields such as technology, natural resources, tourism, environmental protection and
NGOs. Within the infrastructure cooperation, the emphasis was on railroads, roads, air
routes, telecommunications, pipelines and gas pipelines and ports (XinhuaNet, 2017).
From the African continent, four countries participated in the event, namely: Egypt,
Tunisia, Ethiopia and Kenya (The Diplomat, 2017). It is no accident that two of them are
part of the East African region, with its shores in the Indian Ocean, becoming key places
in the Chinese initiative. In fact, the port of Nairobi is marked on the maps that show the
route of the sea route
18
.
As mentioned in previous paragraphs, initially African participation in the BRI appeared
with a question mark. However, at present, the interest and impulse of African countries
to extend it to their territories can be affirmed. Such is the case, that some authors
already classify it as "a second belt" (Breuer, 2017). The truth is that in the framework
of the 2018 FOCAC summit in Johannesburg, China included the BRI at the conclusion of
the signing of memoranda of understanding (MoUs) bilaterally with thirty-seven African
countries and the African Union
19
, where they expressed the political will for the joint
development of the initiative (Xinhuanet, 2018). It should be noted that Kenya is among
the signatory countries (Mbogo, 2018), reaffirming the geostrategic relevance it has for
its spatial location.
3.1 Kenya, another gateway to Africa: the Mombasa-Nairobi railway
As it became known, China's participation in railway infrastructure projects in Africa dates
back to last century. It is necessary to remember that already in the sixties Beijing was
the key player in the construction of the TAZARA
20
, binational railroad jointly owned by
Zuma and the representative of the government of the People's Republic of China, Mr. Xu Shaoshi, Minister
of National Development and Reform Commission (NDRC). Within the framework of the Action Plan several
milestones were proposed to be developed during the period in question, such as: the agreement on
relevant laws and regulations on railway cooperation; the establishment of a Project Implementation Unit
(PEU) by the AUC; collaboration and simplification between African and Chinese companies; technology
transfer, education and capacity building for manufacturing locally-owned goods (African Union, 2016).
18
See maps of the following sites: Xinhua; World Economic Forum; The Economist, Kenyan Wall street.
19
According to Belt and Road Investment Index Report 2018, prepared by the Shangai Municipal Commission
of Commerce, the countries that are part of the initiative are South Africa, Kenya, Morocco, Ghana, Tanzania,
Nigeria, Ethiopia, Egypt, Madagascar, Algeria, Tunisia, Sudan, Congo and Angola. Anyway, it is important to
consider that all the projects previously agreed between an African government and China -after signing
the MoUs for which they have been called “BRI countries” - have been incorporated into the initiative.
20
In the sixties, the governments of Tanzania and Zambia were working on the design, but they knew that
this gigantic project required large amounts of funds to take off. At first, they contacted Western countries
to get help to build the line, but those rejected the idea and insisted that "the project was not economically
viable". It was there that the government of the People's Republic of China, under the direction of Mao
quickly accepted and offered to finance it as a turnkey project. It was then that on September 5, 1967, an
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the governments of the United Republic of Tanzania and the Republic of Zambia. In terms
of interconnectivity, TAZARA linked Zambia with the seaport of Dar es Salaam in Tanzania
and provided roads and railways. In essence, it was a backbone communication network
for the East African Community. This project has become a symbol of China's solidarity
cooperation in Africa, which persists to the present. It realizes that in July 2018, a
meeting was held between the Minister of the Central Committee of the International
Department of the Communist Party of China (PCCh), Mr. Song Tao, and the authorities
of TAZARA, to whom he has requested the advancement of the "Spirit of TAZARA" as a
symbol of friendship, committing himself to the modernization of it (TAZARA, 2018)
21
.
In this context, China and the African Union signed a MoU in 2015 with the objective of
connecting their capitals and important cities with an integrated high-speed rail network,
an emblematic project of the 2063 Africa Continental Agenda. Meanwhile, the Chinese
project of modernization and railway construction of the Mombasa-Nairobi section in
Kenya is also part of the East African Railway Master Plan - which aims to extend
throughout Tanzania, Kenya, Uganda, Rwanda, Burundi, South Sudan and Ethiopia.
The case of the Mombasa-Nairobi (or Madaraka Express) railway section is of particular
interest since it runs parallel to the Uganda Railway (known as "Lunatic Express"), built
by Great Britain at the end of the 19th century, when these territories were under British
rule (Duell, 2017). The lack of maintenance of these communication channels generated
a significant deterioration in transport capacity
22
.
Consequently, the SGR project, funded mostly by China, was designed in two large
corridors: Northern corridor and Lapsset corridor
23
, which cover different sections of the
railway. The Northern Corridor It consists of two phases: the first of 472 km from
Mombasa to Nairobi, which is completed and was inaugurated on May 31, 2017. The
second phase, of 490 km total completing the Nairobi - Kisumu - Malaba route, is in turn
made up of 3 subphases of which only the first one is underway.
The main actors involved in the design, construction and execution of the Mombasa-
Nairobi section were mainly two large Chinese companies. On the one hand, the China
Road and Bridge Corporation (CRBC)
24
which was hired by Kenya Railways (KR) to carry
out the first phase of the Northern Corridor and also two commercial contracts were
signed, namely: one related to the construction of civil works under the turnkey modality
and another for the supply, purchase and installation of locomotives and rolling stock. On
the other hand, KR and China Communications Construction Company (CCCC) have
signed four commercial contracts for the development and execution of the second phase
agreement was concluded for the construction of TAZARA in Beijing, between the governments of China,
Tanzania and Zambia. The Chinese financed the project, provided support for construction, experience and
equipment, including buildings, workshops, training schools and related infrastructure. The initial idea was
for the rail line to start from Kidatu in Tanzania to Kampoyo in Zambia. In 1970, China agreed to grant
Tanzania and Zambia an interest-free loan repayable in thirty for a total of 988 million yuan- to cover the
costs of construction of the line and the supporting infrastructure of the stations and the training school, as
well as the supply of motor energy and rolling stock.
21
For more information about this project you can read: “Freedom Railway. The unexpected successes of a
Cold War development Project”. Available: http://bostonreview.net/jamie-monson-freedom-railway-tazara-
tanzania
22
The Uganda Railway is a railway that connects Lake Victoria to the port of Mombasa. In the eighties its
transport capacity was 4.8 million tons and in 2012 1.5 million (Mugwe, 2018).
23
For more information about this corridor visit: http://www.lapsset.go.ke/projects/railway/ . It consists of
two large sections: the first Lamu - Isiolo - Nakdok that will cover 1,350 km; and the second Nairobi - Isiolo
- Moyale over 700km.
24
It is a subsidiary of the China Communications Construction Company (CCCC).
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of the Nairobi-Malaba section of the project. With regard to construction supervision, it
is the responsibility of the China Railway Development Company, Apec Consortium
Limited and Edon Consultants International (CRDC/APEC/EDON Consortium) who are
responsible for the review and supervision of design and construction to ensure that
quality standards are met.
The cost of the first phase Mombasa-Nairobi amounted to 3,223 million dollars, which
made it the most expensive infrastructure projected in Kenya since its independence and
equivalent to 20% of its national budget (Changfeng & Ziro Mwatela, 2016). The financing
was provided by 90% of the Exim Bank of China through the granting of a loan to the
Kenyan government. The remaining 10% was financed by the African country who did so
through a Railroad Development Fund, anchored in a 1.5% tax on the cost of overseas
imports transported in Madaraka Express (Kenya Railways, 2019; Railway Gazzette,
2017).
To summarize we can see that according to the above detailed, China is concerned not
only with the financing, construction and execution, but also with the provision of
materials and project supervision. What can be seen is that the Madaraka Express meant
advances and improvements reflected, on the one hand, in the increase in volumes
transported to and from the port; and on the other hand, the reduction of costs and travel
time, the promotion of investments and an improvement in the competitiveness of
markets.
To account for this, the National Statistics Office of Kenya (KNBS) reported that the rail
service transported 699,055 passengers between June and December 2017, a number
that increased to just over 1.5 million in 2018. In addition, the SGR freight service
transported 5 million tons of merchandise in 2018, with a total revenue of 863,177
million dollars (Xinhua News Agency, 2019). Regarding the reduction of transport time,
while the “Lunatic Express” takes about 12 hours to make Mombasa-Nairobi, the
Madaraka Express completes the section between 4 and 5 hours. As far as employment
is concerned, the project has created at least 19,400 direct jobs and 6,000 employees
by subcontractors (Breuer, 2017).
Once the project is fully completed, further decongestion in the Port of Mombasa and an
exponential increase in cargo volumes transported to and from the port are expected.
Another advantage will be reflected in the even greater decrease in production costs,
making the region a competitive and attractive destination for foreign investments that
will help in the export of various resources stranded in the region. Finally, it is argued
that road wear will be reduced, so maintenance costs will also be reduced (Kenya
Railways, 2019).
However, despite the great contribution that the railway project has achieved, there are
also two major challenges that the Kenyan government must face as a side effect of its
realization. First, as of 2013, the trade balance deficit between Kenya and the Asian
country deepened, amounting to 3,681 million dollars in 2017. This is due to the
substantial increase in imports of Kenya from China equivalent to 5,000 million dollars
mostly of consumer, capital and intermediate goods. (World Integrated Trade solution,
World Bank, 2019).
Second, the environmental issue is another of the problematic axes of the project.
Although the first section crossed “Tsavo National Park”, bridges, underground passages
and pens were built to provide the animals with alternative passageways. However, the
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second phase was stopped because the project implied that it crossed the “Nairobi
National Park”, to which were opposed self-proclaimed conservation sectors of the society
(Breuer, 2017). In order to overcome this obstacle, the government undertook to reduce
the carbon footprint of the trains involved in the project in order to reduce the
environmental degradation of its territory (Kenya Railways, 2019).
In summary, from the above, we can affirm that although the railway project is a work
that contributes in the short and medium term to the growth of Kenya, its government
must face an ever deeper external debt, with China being the main creditor accounting
for 66% (Anzetse Were, 2018). In the same way, a viable path to deal with the debt with
the People's Republic cannot be observed in the near future. So much so, that Kenya had
to borrow from third countries (such as Japan, France, Germany, etc.) in order to support
it. In other words, the African country is trapped in a vicious circle that assimilates a new
dependence, but with Chinese characteristics, known as ‘debt trap’.
Conclusions
After having approached infrastructure cooperation in Africa, particularly the case of the
Mombasa-Nairobi project, it has allowed us to make the following final reflections. First,
it is important to highlight that the CSS was always present as China's foreign policy tool
in the approach to developing countries. Moreover, infrastructure cooperation has
emerged as a symbol of development cooperation, mainly towards African countries. It
is true that the first example that illustrates such a commitment was the TAZARA, at a
historic moment when the Asian country was not the economic power that it has become
today. Therefore, beyond the political and ideological interests that went through the
realization of such a project in East Africa, it was a solidarity action per se.
However, as China consolidates its internal development model, its foreign policy
interests have changed to the extent of its rise in the international order. In this sense,
infrastructure cooperation projects are not only of vital importance to stimulate
development in African countries, as the Asian giant affirms, but mainly to promote
commercial exchange and expand the activities of its state-owned companies. Precisely,
the launch of the BRI in 2013 responds to Beijing's global strategy and it is no less than
its nerve centre is the construction of civil-type infrastructure works.
Within the framework of the BRI, the efforts of the African countries to incorporate their
continent in this initiative should be highlighted. The fact of being part of a strategy that
involves half of the globe and that has prospects of becoming global, gives Africa a
position of unenforceable geopolitical relevance. However, African countries also compete
with each other for more benefits in their relations with China. In this regard, Kenya is
perceived and perceives itself as another point of entry (or exit, depending on the point
of view) to Sub-Saharan Africa, in addition to the states grouped under this characteristic,
namely South Africa or Nigeria. The Mombasa-Nairobi railroad project has granted Kenya
a privileged position, because it postulates Mombasa to become the main port of East
Africa, in addition to becoming a modern transit route from the Indian Ocean to central
Africa.
Lastly, it is interesting to evaluate whether the above-mentioned infrastructure
cooperation project effectively allows for a mutually beneficial relationship. As for China,
as stated, the gains are evident. On the contrary, for Kenya, from a first approach, the
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project would be very beneficial, although, it is necessary to examine some effects in the
short and medium term. Regarding the “pros”, this type of works reduces production
costs indirectly, by reducing the cost of freight. Consequently, it would increase the
competitiveness of Kenyan exports (and those of neighbouring countries) as well as
Nairobi would improve tax collection by exploiting this new communication channel.
However, as noted, Kenya's way of paying the Chinese Exim Bank loan is through a lien
on the use of the railroad. In addition, while the project is being carried out, China is the
one who decides on all phases of implementation. That is, the African country does not
have autonomy on the matter in any way. At the same time, Kenya's balance of payments
has deteriorated since project implementation, becoming highly deficient. This is because
China imports the machinery, goods and services it needs for project execution. Which
leads us to affirm that in a short period of four years (2013-2017) Nairobi's economy
became very dependent on the relations with Beijing.
It is clear that China gives countries such as Africans the possibility of accessing tangible,
necessary, rapid investments without the bureaucracy characteristic of international
financial organizations. However, projects that are framed as CSS have many similarities
with the attached help (better known as “tied aid”) practiced by the traditional powers,
when certain conditionalities are established that end up blurring the advocated solidarity
horizon.
All of the above leads to reinforcing the idea that China is intensifying its role as a state
supplier of world public goods. So, this "hegemon aspirant" seems to be emulating certain
characteristics of British Pax on the way to the establishment of its own China Pax.
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OBSERVARE
Universidade Autónoma de Lisboa
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Vol. 10, Nº. 2 (November 2019-April 2020), pp. 110-123
THE 3 SEAS INITIATIVE: GEOPOLITICS AND INFRASTRUCTURE
Bernardo Calheiros
bernardo.calheiros@gmail.com
Master in Strategy and Under-graduation in International Relations. National Defense Course and
Advanced Geopolitics Studies Course. Former Director of Bilateral Relations Services at the
Ministry of National Defense (Portugal). Consultant for the companies Gaporsul and Kyron
Consultores. He is currently senior technician at the Directorate of International Relations of the
General Directorate for National Defense Policy.
Abstract
The Three Seas Initiative (I3M) is an ambitious geopolitical project comprising twelve EU
Member States located between the Baltic Sea, the Black Sea and the Adriatic Sea: from North
to South, a wide range encompassing Estonia, Latvia, Lithuania, Poland, Czech Republic,
Slovakia, Hungary, Austria, Romania, Bulgaria, Slovenia and Croatia. It is a region with more
than 25% of the EU's territory and about 22% of its population, but with a much lower
economic representation. I3M aims to promote the development of central European
infrastructures with a view to bringing this region closer to the economic development levels
of other European countries.
The I3M aimed for development of large projects of regional infrastructure in three major
fields: energy, transport (road and rail) and the digital field (communications).
The geopolitical importance of this project is immediately evident from the fact that many of
these countries are landlocked states with no access to the sea. These infrastructures will now
give them access to three seas and thus contribute to greater independence and room for
maneuver in their policies. This region, situated in the center of the European continent, one
of the main energy markets of the future, is also the scene of a very strong trade struggle
between Russia, with its natural gas supplies, and the US, with its growing production of shale
gas.
The projects launched by I3M are therefore of greater economic and geopolitical importance,
although they still have to ensure appropriate funding. Although the Three Seas Fund (TSF)
was created), with a duration of 30 years and which aims to secure a financing of 100 billion
euros (from an initial investment of the Member States in the amount of 5 billion euros), The
truth is that much will depend on the support given by the EU and the countries interested in
these projects, such as the US and China (link to the silk route).
Some European countries have seen the birth of this Initiative with some suspicion, such as
Germany, which has increasingly been focusing on Nordstream II, and Russia, which accuse
their promoters of representing US interests on the European continent.
Regardless of the controversies raised, I3M seems to be a form of regional cooperation that
makes perfect sense and fully integrates into the spirit of European integration, seeking for
its peoples the same development as the other Member States.
Keywords
Three Seas Initiative, Central Europe, Energy, Infrastructure
How to cite this article
Calheiros, Bernardo (2019). "The 3 Seas Initiative: Geopolitics and Infrastructure".
JANUS.NET e-journal of International Relations, Vol. 10, N.º 2, November 2019-April 2020.
Consulted [online] on the date of the last visit, https://doi.org/10.26619/1647-7251.10.2.8
Article received on September 17, 2019 and accepted for publication on October 1, 2019
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Bernardo Calheiros
111
THE 3 SEAS INITIATIVE: GEOPOLITICS AND INFRASTRUCTURE
1
Bernardo Calheiros
Introduction
Gradually, the European Union has been expanding, and increasing the number of its
member states. It was also able, in parallel, to launch the single currency - the euro –
and deepen their degree of integration, even in times of crisis. It was not, however, able
to prevent the existence of a multi-speed Europe, generating ideological cleavages and
different perceptions of the Union model. Not even able to keep the acquis
communautaire intact... and even see its integrity possibly as a large territory, with
issues such as Brexit's...
In this process, there are aspects which are crucial for the future of Europe, and especially
of Community Europe. First, the definition of its geographical boundaries. The Union has
not stopped expanding, including any state that meets the membership criteria, without
being careful to clearly define its boundaries. Problems such as those arising from issues
such as Turkey's drift, and the Russian Federation-induced fragmentation processes in
Ukraine and Georgia thus arise. A geopolitical entity such as the European Union
necessarily has to explain its project, its founding idea and what is the space it concerns.
A process that, to say the least, seems to be in crisis today.
Enlargement has been fast, but not without tensions, as divisions and regional blocs are
emerging between Member States that share common interests and do not see
themselves in the Paris-Berlin axis. These divisions are also assuming an ideological
feature, with the emergence of alternative proposals, which have even led to attempts
to marginalize the countries that propose them. Worse still, some countries are
discussing leaving the euro, or even the Union, as is the paradigmatic case of the United
Kingdom.
This work focuses specifically on the Central European region - a broad concept of Central
Europe, as we will see – and, more specifically, the recent Three Seas Initiative (I3M),
which refers to the space between the Baltic, Adriatic and Black Seas and which has been
shrouded in some controversy. Central Europe seems to be back, being a region that has
common features and problems among its member states, some political identification,
a shared past, and the perception of common threats.
The enlargement of the European Communities - and after the European Union - was
done, until a certain moment, by integrating countries that had in common the fact that
1
The translation of this article was funded by national funds through FCT - Fundação para a Ciência e
a Tecnologia - as part of OBSERVARE project with the reference UID/CPO/04155/2019, with the aim of
publishing Janus.net. Text translated by Cláudia Tavares.
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they belonged to the community of democracies in western Europe. It was a set of states,
which albeit with different economic developments, had a great homogeneity in political
terms and even in recent historical experience, marked by the "security guarantees"
given by the Atlantic Alliance, which has enabled them to achieve major economic
development based on increasing legal certainty which, although noticeably unevenly,
has been establishing there.
With the fall of the Wall and the liberation of the countries of “Eastern Europe”, they soon
aspired to join the European Union on the one hand, in pursuit of the development they
had dreamed of, and on the other hand to NATO, the organization that provided them
with such assurances of security and respect for their newly acquired sovereignty.
However, if it is true that most of these countries joined the European Union and the
Atlantic Alliance in the early years following the fall of the Wall, it is also true that they
were still very suspicious of their eastern neighbor – now the Russian Federation - and
also somewhat reluctant to join federalist projects that implied important compromises
in terms of national sovereignty. It is therefore not surprising that, in parallel with the
process of European integration, if they were drawing up forms of regional cooperation
of which the Visegrad Pact is the most visible example – a point we will return to. These
did not undermine European integration - far from it – but they emphasized regional
specificities, which included not just economic issues (in terms of development,
infrastructure needs, energy dependence, etc.), but also political and of security (fear of
Russian interventionism, defense of sovereignty, etc.). Their perceptions of security were
often not shared by other countries, who did not know what it was like to live under a
totalitarian communist regime for almost half a century.
The European Union did not oppose these forms of regional integration and even
considered them to have several positive aspects. Thus, these were growing in number
and importance, becoming particularly active at the very moment when a President
emerged in Russia – Vladimir Putin – who comes to challenge the policies of its
predecessors and shelter some revisionist theories that criticized the breakup of the
Soviet Union, the loss of territory and NATO's strategic advance towards its borders.
Thus, organizations such as the Pact of Visegrad (so-called Visegrad 4, which began with
a series of informal meetings to agree positions on their entry into the European Union,
and that later has been formalized, recreating itself as a Visegrad Plus, a larger and less
formalized entity to include “without identity loss” other adjacent states, such as Georgia)
- grouping Poland, the Czech Republic, Slovakia and Hungary –, which had a rather
residual activity so far, have strengthened their cooperation and will even arouse the
interest of other countries in the region, such as the Baltics and Romania.
While asserting their allegiance to the European Union and the European project, these
countries viewed with increasing suspicion the more federalist proposals being put
forward by France and other Member States. Their security - this is their belief - is
essentially guaranteed by NATO and the United States, with problems that greatly
affected the countries of the region and which had economic and security implications,
one of the main being energy dependence on Russia. As important a problem as the
Kremlin was proven to use it as a geopolitical weapon, as it became evident in the case
of Ukraine.
However, it should be noted that this region of Central Europe already had a long tradition
of attempts at regional integration, thus having a marked Central European identity,
although this concept had no geographical and scientific basis and varied throughout
history, to the interest of the powers. Proposals for the creation of a Mitteleuropa, “the
territory where Germanic culture constitutes the common denominator” (Joseph Platsch,
Mitteleuropa, 1904), added, in a perspective more favorable to the interest of the small
powers that composed it, to others more focused on the Slavic states and Hungary, as
the the case of the Intermarium (proposal by Marshal Pilsudski, President of Poland in
the interwar period), a construct that had the advantage of being a real security glacis
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against Russia. Other views from recent historians and analysts have extended this
concept to Romania (Elena Zamfirescu, in her Mapping Central Europe) or even the
Balkan countries according to a definition of Central Europe as the space of influence of
four great empires: Germanic, Austro-Hungarian, Russian and Turkish (Frédèric
Mitterrand, Les Aigles Foudroyées). This broadening of the concept makes sense
considering the recent past.
In fact, regardless of whether we call it Central Europe or Central and Eastern Europe (as
some argue), there is a range of countries which, due to their recent historical experience
and its implications at various levels, feel that they have common problems and
challenges that will only gain from being addressed by all together. Even without calling
into question other geopolitical commitments arising from its bet on European
construction.
As a result of the above characteristics, it will not be strange to note that among these
countries, there is a relatively high percentage of conservative “populist” governments
contesting the federal model for Europe, immigration policies (likely to pose challenges
to its newly acquired identity) and even some of the economic priorities for the European
Union.
1. Central Europe space and historical context
Although this work is not about the concept of Central Europe, it is considered that given
the complexity of the region and the numerous integration proposals put forward over
time, there is every convenience that we should look at, however briefly, those, before
we study the latest: the Three Seas Initiative.
The complexity of the region is based on several factors, first the multiplicity of small
powers that make it up, resulting mostly from the dismemberment of great empires, and
the particularity of including all different languages, cultures and ethnicities, and these
are rarely confined to just one state. They still have recent borders and, in some cases,
much discussed, so it is natural that conflicts, claims and attempts of integration into
wider spaces have multiplied, either under the broad concept of Empire or Federation.
These integration initiatives have taken many forms, from mere customs unions to larger
federal geopolitical projects involving a larger or smaller number of countries. From more
homogeneous designs, spanning only the two empires - the German and the Austro-
Hungarian - to the broader concepts extending to the Baltics, the Balkans and even Italy
and neighboring countries, as is the case in Belgium or the Netherlands. Some even
propose models that evolve towards integration across the continent.
For this work we will adopt a broader view of Central Europe. This is, by the way, the
spirit of I3M, from the Baltic Sea to the Balkans, it also encompasses the riparian states
of the Danube, the main central European river, which flows into Germany and flows into
Romania's Black Sea coast.
This area is bounded to the north by the Baltic Sea and the great European plain, which
runs from the Elbe River to the Gulf of Finland and is a major concern for the safety of
Poland. In the center stand out the Czechs mountainous terrain, but also the famous
Gate of Moravia, which gives way to several countries and is an important point for
projects of I3M. The southernmost Carpathians follow, entering several countries and
surrounding the great plain of Pannonia. To the west, the Alps span Austria and Slovenia
and to the south the Balkans border the peninsula of the same name. Finally,
Transylvania, a plateau region, which was the entry point and historic establishment of
German-speaking minorities, still residing in the territory of present-day Romania.
This is a concept that deliberately leaves Germany out, even considering that it was
precisely this country that, since Bismarck, but especially since William II, made it
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impossible to integrate the whole region corresponding to the territories of the German
Empire and the Austro-Hungarian Monarchy. Moreover, in the specific case of the Three
Seas Initiative, Germany, while having observer status, turns out to be “on the other
side”, in that, with the construction of Nordstream II and the direct supply of Russian gas
to Europe through its territory, it is at the center of the threat of energy dependence for
all of Central Europe.
Bismarck's option for the creation of the German Empire and thus setting aside the ideal
of Grossdeutschland (the union of Germany and Austria), will have a big impact on the
hope of setting up a Reich (Empire) capable of assuming itself as a platform for the
framing of all these small, mostly Slavic nations that do not see themselves in the dual
Austro-Hungarian monarchy. “What they admire in the Reich the supporters of
Mitteleuropa, is of being, not a state in the modern sense of the term, but a principle of
organization, a supranational notion, a center of attraction for the new states, which
adaptive federalism of institutions would allow to integrate”
2
.
This federal ideal for the organization of central European space was particularly alive
among Slav authors, as Jacques Droz points out: “numerous among the Slavs were those
who recognized that there would be no other solution to the organization of central
Europe than national autonomy within a federation of states”
3
.
Other integration proposals focused mainly on the economic field, such as that advocated
by Frédéric List, as early as 1840, through the creation of “a large economic space”, “a
vast federal state, constituting a commercial unit, encompassing the small neighboring
nations – Denmark, the Netherlands, Belgium, Switzerland - which would see the Danube
and the Mediterranean route open via the Habsburg states”
4
.
Several other proposals - like Gustave Höfken's (1842), Chancellor Schwarzenberg or
Baron Karl von Bruck (1848) – defended the creation of a vast Zollverein, a continental
customs union stretching from the North Sea to the Adriatic.
These initiatives, which will win numerous supporters, will have a first setback with
Bismarck's creation of the Second Reich, which will make it impossible to unite with
Austria, defeated in Sadowa. As Jacques Droz points out, “the ideology of Mitteleuropa,
that is, the sense of the solidarity interests of the great states of Central Europe, between
1871 and 1914 knows an almost complete eclipse”
5
. But in the meantime, the Slavonic
nations of the Double Monarchy are stirring under the banner of the principle of
nationality.
In 1917, taking advantage of the misfortunes caused by the war, German Friedrich
Naumann presented one of the most interesting proposals for integrating Central Europe
with his book "Mitteleuropa", which immediately became a bestseller
6
. His proposal was
that the German Empire and the Austro-Hungarian Empire should take advantage of the
signing of peace to create a union, a Mitteleuropa, which would constitute a large space
capable of rivalling other great powers such as Russia and the USA. In a second phase,
it would then be possible to accept applications from other European countries. The
leadership would be German, but all nationalities would be respected.
However, during World War I, in the interwar period, and especially under the Third
Reich, the Pangermanist ideas and the theories of the living space that will make the
elites turn their backs on the idea of Mitteleuropa and start thinking more in terms of
2
Droz, Jacques, 1960. L’Europe Centrale. Évolution Historique de l’Idée de «Mitteleuropa», Paris, Payot,
page. 26 [Author trad.].
3
Idem, p. 27.
4
Idem, p. 54.
5
Idem, p. 155.
6
Naumann, Friedrich, 1917. Central Europe, [translation by Christabel M. Meredith], New York, Alfred A.
Knopf, (Classical Reprint Series, Forgotten Books, 2012).
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Osteuropa (East Europe) and in the vast spaces to the east, the famous Lebensraum (or
“living space”) which Hitler aimed at.
An important attempt at regional integration in Central Europe, and with the merit of
being born in a non-Germanic country, comes with the 1919 project of Intermarium,
proposed by the first President of the Republic of a Poland then reborn, Marshal Józef
Pilsudski. It intended to create a federation of states between the Baltic Sea and the
Black Sea, namely Poland, the three Baltic States (Estonia, Latvia and Lithuania), Finland,
Belarus, Ukraine, Hungary, Romania, Yugoslavia and Czechoslovakia
7
. This is an
important attempt but it will not materialize, so one of his followers, Polish Foreign
Minister Józef Beck, will in turn propose the creation of a Central European Union
including Poland, Czechoslovakia, Hungary, Scandinavia, the three Baltic States, Italy,
Romania, Bulgaria, Yugoslavia and Greece. Another project that is just that.
Winston Churchill still attempts, at the end of World War II, to create a federation of
small Central European nations
8
, which would constitute a glacis of security in relation to
the Soviet Union. But Moscow strongly opposes. And these projects are not referred to
anymore practically until the fall of the wall.
Some exceptions existed, proposals from intellectuals who spread their ideals in
samizdat, but which did not have great expression. In 1953, Lieutenant Colonel F.O.
Miksche, an exiled Communist Czechoslovak officer in London, vigorously defended the
creation of regional federations in Europe, bringing together countries with identical
interests, the same culture and economic interdependence. He considered that the
Danube Basin could be “the core of future development for all of Central and Eastern
Europe in the event of a collapse or diminution of Russian pressure”
9
. In his work, the
author specifies this idea a little better when he states that “the problem of the creation
of a Central European Federation can only be overcome in one way, through a limited
federation in an area with favourable conditions, and which would constitute a nucleus
to which neighbouring nations could later join. The regions inhabited by the Austrians,
Czechs, Hungarians and Slovaks, which are geographically, culturally, psychologically
and economically complementary, have favourable conditions for the initial federation”
10
.
This is a very limited region, leaving out the Baltics, but also Poland, Romania or the
Balkans.
Already at the end of the twentieth century, there were also some proposals for regional
co-operation, of which we stand out:
In 1989, four countries launched the Quadragonal project - Italy, Austria, Hungary and
Yugoslavia. It was an initiative of the Italian President Gianni De Michelis and sought to
counterbalance the growing German influence in the region. The initiative soon expanded
to 18 countries, taking the name of the European Central Initiative, but the variety of
agendas and the Yugoslavia War ultimately deprived it of any success.
Most important was the creation of the Visegrad Group - with the participation of Poland,
Czechoslovakia (later the Czech Republic and Slovakia) and Hungary - which, after a
weak start-up phase, began to gain importance after the rise to power in Russia of
President Putin.
7
Chodakiewicz, Marek Jan (2016). Intermarium: The Land Between the Black and Baltic Seas”, Routledge,
1
st
. ed.
8
Droz, Jacques, op. Cit, page 264.
9
Miksche, F.O. (1953). Danubian Federation. A Study of Past Mistakes and Future Possibilities, England,
Kenion Press Ltd., Bucks (introduction by Philip Dunant, viii+38 pags.), pag. 4. [author trad.].
10
Op. Cit., page 33.
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2. The Three Seas Initiative
The Three Seas Initiative (I3M), an ambitious geopolitical project launched by Poland,
was created in August 2016 in Dubrovnik, on the Adriatic coast of Croatia, at the first
I3M Summit with twelve Member States: from North to South, a wide range covering
Estonia, Latvia, Lithuania, Poland, the Czech Republic, Slovakia, Hungary, Austria,
Romania, Bulgaria, Slovenia and Croatia. A range that, while geographically and
demographically significant, is not economically significant. We are talking about “a
region that represents 28% of the European Union's territory and 22% of its population,
but only 10% of its GDP”
11
. The aim was to promote the development of central European
infrastructures, which would allow further economic development and thus bring that
region closer to the levels of other European countries.
Map nr. 1 - Countries participating in the 3 Seas Initiative
Source: https://es.wikipedia.org/wiki/Iniciativa_Tres_Mares
In July 2017, the II Summit took place in Warsaw, which was attended by US President
Donald Trump, who praised this initiative, while launching harsh attacks on the
Nordstream II pipeline and Germany itself for launching this project with Russia while
supporting the sanctions policy regarding the conflict with Ukraine.
The Third Summit took place in Bucharest in September 2018 and its main objective was
to identify the priority projects to be developed. The meeting was a success and the
Business Forum was created
12
and I3M Network of Chambers of Commerce was
established. A Declaration of Intent was also signed for the creation of the Three Seas
Investment Fund. But the summit also had a major international impact by counting with
the presence of “strategic partners”, notably the USA, the EU and Germany, the latter
with observer status and invited by Poland
13
.
11
PWC & Atlantic Council (2017). The Road Ahead – CEE Transport Infrastructure Dynamics
(https://www.pwc.pl/pl/pdf/the-roa-ahead-raport-pwc-atlantic-council.pdf).
12
In addition to creating an enabling environment for the implementation of I3M's priority projects, the
Business Forum will also have a role in monitoring the progress of projects under implementation.
13
The issue of a possible future inclusion of Germany in I3M as a Member State has been debated in the
margins of its meetings as it is a major challenge. While, on the one hand, the resulting potential is evident,
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The Fourth Summit, held on 5 and 6 June 2019 in Slovenia, was intended to make a first
progress report on the development of the projects identified in Bucharest. However,
their results came to light as the major development turned out to be the effective
creation of the Three Seas Fund, which is under the administration of Poland, Romania
and the Czech Republic and already has 500 million euros, still a very small amount for
the overall needs of this project. The idea that it is time to move from political statements
to actions was consensual. However, it is fair to point out that we are beginning to see a
change in the perceptions of Germany and the European Union regarding I3M, with the
first discussing internally the possibility of accession and with Brussels considering that
this Initiative is fully in the spirit of European integration and therefore will be available
to support several of its projects.
About the character and objectives of I3M much has been said. Its creators, who refuse
any reference to geopolitics, argue that it is merely an initiative aimed at developing
regional infrastructure and thus favoring European integration through the convergence
of their economies with those of Western Europe
14
. This project will allow this region to
take full advantage of its central position in Europe and the fact that it has a good network
of contacts with the West and the East. It thus allows the north to be brought closer to
the south and to the east to be brought closer to the west, while ending the limitations
of some states that had no access to the sea.
Its enemies, however, see it as only a form of US interference intended to sell its shale
gas (shale gas) to a continent that, it seems, will be the world's largest gas consumer.
Others finally consider that there is also an attempt here to create a region with a
different political and economic model than Brussels (although perfectly framed in the
EU). The reality will be perhaps different from all these interpretations and perhaps have
some of them all.
I3M was officially created as a way of achieving major regional infrastructure projects in
three major fields: energy, transport (road and rail) and the digital field
(communications), so as to overcome the relative backwardness that these countries still
have in these areas. As synthesized by Alexandr Vondra
15
, at the energy level are on the
table four major projects:
− “A pipeline connection to two large LNG terminals (liquefied natural gas): Swinoujsce,
on the Baltic coast [from Poland], already operational; e Krk, a Croatian island of the
Adriatic Sea”;
− The “Gas Interconnection Poland-Lithuania (GIPL), integrating isolated gas markets
from the Baltic countries into the EU network”;
− “The North-South Gas Corridor (BRUA), a two-way pipeline system. In the South it
will connect to offshore explorations in the Black and Caspian Seas (via TANAP pipeline
in Turkey). In the West, it will integrate the Balkans into the EU network via
Baumgarten in Austria”;
particularly in terms of financing, it is also clear that problems may arise, especially in the energy sector.
Germany, however, has only applied for observer status because it wants to be present - and influence -
an initiative that brings together neighbouring Central Europe and is the site of global competition between
the US, Europe, China and even Turkey (vide Korybko, Andrew (2018). Germany’s Request to Partner with
the Three Seas Initiative Is a Win for Poland”, Global Research, available at
https://www.globalresearch.ca/germanys-request-to-partner-with-the-three-seas-initiative-is-a-win-for-
poland/5652168.
14
“A citizen of ancient Europe has on average twice as many kilometers of motorway as one in Central
Europe”, in Patricio de Antonio, 2017. La iniciativa de los Tres Mares que conectará la Vieja y la Nueva
Europa, available at https://ideas.pwc.es/archivos/20171013/iniciativa-de-los-tres-mares-conectara-vieja-
y-nueva-europa/.
15
Vondra, Alexandr (2018). Regional Integration at the Three Seas Summit, available at https://emerging-
europe.com/voices/regional-integration-at-the-three-seas-summit/.
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− “The pipeline Eastring, which will link existing pipelines in Bulgaria, Romania, Hungary
and Slovakia.”
With regard to major transport infrastructure projects, according to the same author, the
following should be mentioned:
− “Via Carpathia, a motorway linking a Baltic port (Klaipeda, Lithuania) to an Aegean
commercial hub (Thessaloniki, Greece);
− Modernization of the north-south motorway along the E65 motorway which will
connect the Baltic (from Szczecin, Poland) to the Adriatic Sea (Rijeka, Croatia);
− Rail Baltica, connecting Warsaw, Kaunas (Lithuania), Riga, Tallinn and Helsinki;
− Rail 2 Sea, linking Gdansk, Poland, Constance, a Romanian Black Sea port”
16
.
The planned digital infrastructures and supported by the EU are as follows
17
:
− RuNe Project (Rural Networks), a broadband fiber network connecting areas of
Slovenia, the Autonomous Region of Friuli-Venezia Giulia (Italy) and the regions of
Primorsko-Goranska and Istarska (Croatia);
− Project RO-NET Broadband, creation of broadband infrastructure in less favored areas
of Romania.
− However, I3M has also launched a “Digital 3 Seas Initiative” (D3SI), which predicts
several areas of cooperation
18
:
− Cybersecurity;
− 3 Seas Digital Highway, aiming to fill the gaps in terms of communications
infrastructure, including fiber optics and 5G technology;
− Launch of joint technology initiatives;
− Implementation of the Industry 4.0 program;
− Strengthen e-commerce networks
19
This is a very ambitious set of initiatives that will have a major impact on these countries
and across Europe. Let's not forget that many of these countries are landlocked states
with no access to the sea. These infrastructures will now give them access to three seas
and thus greatly contribute to greater independence and room for maneuver in their
policies. However, for the implementation of these projects there is a need to secure
substantial funding that cannot be guaranteed by Member States alone. Thus, in addition
to appeals to the European Union, US investments have already been secured (especially
in the field of energy) and Chinese (although these have not yet materialized). It was
also decided to create the Three Seas Fund (TSF), with a duration of 30 years and which
16
Op. Cit.
17
European Commission, 2018. The Three Seas Initiative Summit: European Commission Investments in
Connectivity Projects Bucharest, Romania.
18
The Kosciuszko Institute, 2018. The Digital 3 Seas Initiative: a call for a cyber upgrade of Regional
Cooperation, White Paper, Poland, available at https://ik.org.pl/wp-
content/uploads/white_paper_the_digital_3_seas_initiative-1.pdf.
19
Only a selection of the most emblematic projects has been presented here. For a complete list of these
projects, see “Priority Interconnection Projects” of the Slovenian Presidency.
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aims to secure a financing of 100 billion euros (from an initial investment of 5 billion
euros from Member States). A non-negligible scale.
Given the above, it is easy to see the geopolitical implications of this Initiative. First and
foremost, the region is at the center of a titan struggle to supply natural gas to Europe,
it being known that this will be one of the largest markets worldwide. On the other hand,
there is a growing concern to ensure energy independence for the region that avoids the
current over-reliance on supplies from Russia and which will be channeled through
Germany (the aforementioned Nordstream II). In fact, Member States
20
are for the most
very distrustful of this German-Russian project and consider it necessary to promote their
energy independence by diversifying supplies.
The US has openly spoken out against Nordstream II, with President Donald Trump, at
the I3M conference in Warsaw, strongly attacked Germany's energy policy, pointing to
the contradiction between, on the one hand, support for the sanctions policy against
Russia because of the conflict in Ukraine and, on the other hand, payment of millionaire
sums of Russian hydrocarbons, which is a significant help to their economy.
But the implications of this Initiative are broader and in fact include US interests in
supplying shale gas to Europe (a growing market), which makes Washington one of its
main allies. But for US supplies to come to fruition on the intended scale, there are
complex issues that must be resolved before, such as whether the countries of the region
will opt for this solution, being the shale gas prices considerably higher than Russian gas,
but constituting an instrument for the diversification of energy sources
21
. A first step was
taken by Poland, in 2017, when making its first shale gas imports from the US
22
. Polish
President Andrzej Duda even stated at the Warsaw Summit his country's intention to
conclude long-term contracts with the US for these supplies, although complicated price
negotiations have yet to be held, which the US President has said are already likely to
increase
23
.
In contrast to Poland's choices, we saw that US Vice President Mike Pence's visit to
Hungary in February 2019 was not the success that some had hoped for. The talks were
tense and when Mike Pence tried to convince Hungary not to support Russian proposals
to extend the Turkish Stream to Central Europe and instead opt for supplies from the US,
the response received was at least cold. While the truth is that these US ambitions, for
now, are just that, but the Russians can guarantee an immediate continuous supply at
much lower prices.
For its part, China also sees I3M with great interest, which could enable it to use this
huge infrastructure network (particularly as regards ports, motorways and railways) as
part of its project One Belt, One Road. Although cooperation between China and the
20
With particular emphasis on Poland that with the Nordstream II, will lose most of the rights of way of
Russian gas through its territory.
21
Although the price issue is of course important, the growing influence of geopolitics on the EU energy market
must also be considered.
22
However, it should be noted that Poland aims to become a regional energy hub that could eventually replace
Russia in the supply of natural gas to Ukraine and Moldova. It is also making major prospects for local shale
gas production and has already drilled several holes.
23
Engdahl, William, 2017. Initiative polonaise des Trois Mers. Quel en est l’enjeu géopolitique?, New Eastern
Outlook, available at http://lesakerfrancophone.fr/linitiative-polonaise-des-trois-mers-quel-en-est-lenjeu-
geopolitique.
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countries of the region is based on the initiative “16+1”
24
, Beijing is following with
increasing interest the developments of this Initiative
25
.
On another level - more controversial - it is also important to note that among these
countries are some of the most conservative states in Europe, such as Hungary, Poland,
Austria or Slovakia, which have been challenging some of Brussels' policies, particularly
in terms of sovereignty concessions (the federal way), the euro, immigration and
defence
26
. Thus, suspicions have been raised that they might be trying to create, within
the European Union, an alternative integration model to the Paris-Berlin axis (today
increasingly Berlin-Paris), which has always been denied by the promoters of I3M, which
have been repeatedly saying that it is part of the EU and is limited to infrastructure
cooperation. However, no one is unaware that leaders like Viktor Orban, or Italian Matteo
Salvini, now on a desert crossing after the alliance broke that held him in power, have
been sponsoring the idea of a reformulation of the European Union in a more egalitarian
project, or homogeneous in its distribution of the power of its Member States, and with
a different vision of the future.
Growing suspicions of these countries towards Germany have been visible (especially
after the announced Nordstream II, accused of being at the bottom and essentially "anti-
European”, because it aims to circumvent Poland by ostensibly passing through the Baltic
Sea bottoms, marginalizing it on its way) and the French projects on European defense
and a deepening of integration (with the consequent compromise on newly acquired
sovereignty). Most of these countries have also been challenging Brussels' migration
policies, which they consider to be contrary to European interests having clearly
expressed the refusal to accept in their countries the quotas of immigrants which have
been assigned to them.
In turn, at the 55th edition of the Munich Security Conference in January 2019, Chancellor
Angela Merkel argued that the issue of dependence on Russian gas cannot be reduced to
a discussion about whether it is coming from the Ukrainian gas pipeline or the Nordstream
II, having been available for an open discussion that also includes the supply of US LNG
to Europe. In contrast, at the same conference, US Vice President Mike Pence expressed
his country's discomfort over this issue, noting that the US will not be able to guarantee
the defense of the West if its allies continue to depend on the East, and has expressed
itself as “vigorously against Nordstream II”.
This shows, with some sharpness and clarity, the scale of the issues at stake and,
contrary to the claims made by its leaders, I3M is clearly an Initiative with the greatest
geopolitical relevance.
24
Chinese initiative to deepen cooperation with various European States: Albania, Bosnia and Herzegovina,
Bulgaria, Croatia, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Northern Macedonia, Montenegro,
Poland, Romania, Serbia, Slovakia and Slovenia. Cooperation focuses on infrastructure, education and
culture, with three priority areas: infrastructure, cutting-edge technologies and green technologies.
25
Poland has expressed some distrust of the initiative "16 + 1" considering that this has not led to major
practical embodiments. It has also been showing some discomfort over the trade imbalance in favour of
China.
26
Most of these states continue to consider that NATO is the guarantor of their independence and security
and have very strong bilateral cooperation with the US.
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Conclusions
This initiative, of obvious geopolitical importance, nevertheless presents several
important challenges. First, the amount of investment necessary to achieve its various
projects, especially those relating to energy and road and rail infrastructure, which can
only be guaranteed through external investment. The European Union has already
supported some of them (most of which falls, moreover, in larger projects of the
European Union intended for all Member States). China, for its part, has not yet achieved
anything very significant, with countries already accusing it of being no more than
declarations of intent – and the US have only supported projects in which they have a
direct interest, such as those in the energy sector. Thus, most of this millionaire
investment remains to be secured, and this in a time that, it seems, will cool the
economy. The Business Forum, being open to the participation of third countries, could
play an important role in this field; hopefully so.
A major challenge for the US will be to convince Member States, once again in a climate
of economic uncertainty, to buy shale gas from across the Atlantic, more expensive and
more difficult to handle, arguing the need to diversify supplies. At the same time, these
countries will have to face both Russian and German pressure. The fact is that natural
gas supply needs are large and likely to grow considerably in the future, so the temptation
will be to turn to the best-priced suppliers, although the United States will do everything
to make their shale gas part of this equation.
Maintaining the cohesion of this set will not be easy either, especially if I3M cannot count
on the support of the European Union (it is therefore important not to harass Germany
too much). Making the situation more difficult, there is a reference to the existence of
different security perceptions, very uneven levels of economic development and
differences at the political level.
Finally, while the merits of this Initiative are clear, it does not appear that from the
political point of view it will gain susceptible dynamics to be as an alternative to the
current model of European integration. There are several reasons for this, but the region's
dependence on EU funds for the development of these projects, makes it dangerous to
choose to throw political challenges on Brussels orientations or to antagonize the major
EU powers.
From an economic point of view, it seems that everyone will win (and not just the Member
States) in the development of these infrastructures, capable of creating greater contact
and business dynamics in the region.
This leads to the belief that I3M could succeed if it maintains its current orientation to
present itself as a regional initiative aimed at developing the region's infrastructure within
the EU framework, but without having to be overly dependent on Union mechanisms,
always slow and demanding broad consensus difficult to achieve. From the point of view
of security, its promoters have always stressed the importance of the transatlantic
relationship, specifically in order to serve as a counterweight to the Franco-German or
German-French axis, if preferred.
The next summit in Slovenia is expected to be already devoted to the implementation of
the projects defined in Bucharest. This is a litmus test for assessing the ability to capture
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the necessary investments and the political will of the states to withstand the
aforementioned pressures they have been subject to.
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OBSERVARE
Universidade Autónoma de Lisboa
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Vol. 10, Nº. 2 (November 2019-April 2020), pp. 124-140
RIGHTS OF MIGRANTS: NOTES ON THE JURISPRUDENCE OF THE INTER-
AMERICAN COURT OF HUMAN RIGHTS
María Teresa Palacios Sanabria
maria.palacios@urosario.edu.co
Doctor in Law and holder of a Master degree in Constitutional Law from Universidad de Sevilla,
Spain. Associate Professor at the Universidad del Rosario (Colombia) and lawyer of the
Universidad del Rosario. Director of the Human Rights Research Group of the Faculty of
Jurisprudence of the Universidad del Rosario.
Abstract
The rights of migrants represent a challenge for States, because their guarantee evidences
the permanent tension between the sovereignty of the States and the protection of human
rights in the international context. This article will analyse if it is really possible to affirm the
existence of a true evolutionary development of the jurisprudence of the Inter-American Court
of Human Rights in a contentious and consultative way and which, therefore, may contribute
to the improvement of the rights of migrants in the IACHR. To this end, the text will address
the following parts: I) Regulatory framework oriented to the sovereignty of States; II) The
progressive contentious jurisprudence of the Inter-American Court III) The advisory opinions:
integrating elements of rights and; IV) Conclusions.
Keywords
Human rights, Inter-American Court of Human Rights, progressive development, inter-
American jurisprudence, international migration
How to cite this article
Sanabria, María Teresa Palacios (2019). "Rights of migrants: notes on the jurisprudence of
the Inter-American Court of Human Rights". JANUS.NET e-journal of International Relations,
Vol. 10, N.º 2, November 2019-April 2020. Consulted [online] on the date of the last visit,
https://doi.org/10.26619/1647-7251.10.2.9
Article received on February 6, 2018 and accepted for publication on September 15, 2019
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Rights of Migrants: notes on the jurisprudence of the Inter-American Court of Human Rights
María Teresa Palacios Sanabria
125
RIGHTS OF MIGRANTS: NOTES ON THE JURISPRUDENCE OF THE INTER-
AMERICAN COURT OF HUMAN RIGHTS
1
María Teresa Palacios Sanabria
Introduction
The human rights recognized in international treaties are predicated by all people and
International Human Rights Law (IACHR), under the claim of universality
2
(UN, 1993:
19), has established the reasons why they cannot have discriminatory treatment.
3
The
Inter-American System for the Protection of Human Rights (SIDH) has not been the
exception and, through the evolution that it has had regarding the emergence of its
bodies, regulations and jurisprudence, has been concerned with establishing parameters
for the protection of human rights in the American region, applicable to all persons
subject to the jurisdiction of the member states. Thus, it is evidenced by the treaty
establishing the Organization of American States (OAS), by pointing out in Article 3.i
that: “The American States proclaim the fundamental rights of the human person without
distinction as to race, nationality, creed or sex” (OAS, 1948).
With the creation of the Inter-American Commission on Human Rights (IACHR) in 1959
and subsequently the Inter-American Court (1969), as well as with the adoption of
general regional treaties and thematic sectorial treaties, a process of evolutionary
development of regional jurisprudence was promoted, which determines the scope of the
obligations of the States party to them and accept the jurisdiction of the court for the
monitoring of the fulfilment of such commitments.
Thus, it is up to the Inter-American Court, as supreme autonomous and judicial authority
of the IACHR, to apply and interpret the provisions contained in the ACHR. Both
contentious decisions and the advisory opinions of the Court have dealt with a great
diversity of issues and rights and have been described by some doctrine makers as
progressive, courageous and committed to the application of the “pro persona” principle,
which has implied the extension of the catalogue of rights contained not only in the ACHR,
1
The translation of this article was funded by national funds through FCT - Fundação para a Ciência e
a Tecnologia - as part of OBSERVARE project with the reference UID/CPO/04155/2019, with the aim of
publishing Janus.net. Text translated by Carolina Peralta.
2
See the Vienna Declaration and Action Programme (article 5, 1993).
3
Universal Declaration of Human Rights, (art. 2, 1948) and the 1966 agreements. See definition of
discrimination in the International Convention on the Elimination of All Forms of Racial Discrimination (article
1.1, 1965).
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but in the other treaties that are part of this regional context (Quispe, 2016: 229) (Núñez,
2017: 80) (Ovalle, 2012: 601).
Although a significant number of rights are recognized to every person, in the case of
foreigners, countries can legitimately establish distinctions that are not considered
prohibited, which question the principle of equality (Lucas, 2015: 90). Consequently, it
is common for their exercise to be restricted to a very limited framework, which is present
in migration policies. In parallel, the reality of migration is increasing and according to
the OAS, between 2012 and 2016 7.2 million people left their country in the Americas
(OAS, 2017: 4). In this context, it is of interest to analyse how the contentious and
advisory jurisprudence of the Inter-American Court has behaved in this area, and identify
which are its main contributions in order to demonstrate the beginning of the construction
of an emerging normative corpus on the rights of foreigners and migrants, which results
in the creation of interpretative parameters for the OAS member states, but which at a
comparative level can inspire developments in other regional contexts.
The document is the result of research on a project called “The right to a dignified life in
the context of immigration”
4
, which uses a dogmatic methodology of documentary
analysis of primary normative, jurisprudential and doctrinal sources of the IACHR, but
which in this case will focus on the activity of the Inter-American Court, although
reference to the reports of the IACHR, as well as to other instruments that are part of
the IACHR corpus, may be made
1. A normative framework oriented to the sovereignty of States
1.1. American Declaration of 1948
In order to refer to the decisions of the Inter-American Court of Human Rights, it is
necessary to review some regional norms such as the American Declaration of Rights and
Duties of Man of 1948 (DADH)
5
since it provides that the (…) the American States have
recognized that the essential rights of man do not arise from the fact of being a national
of a certain State but are based on the attributes of the human person” (OAS, 1948 A:
1).
This leads to reflection on the true notion of equality between people, in which the value
of individuals prevails without taking into account any legal-political considerations with
the territories for the allocation of rights. However, this ideal is diluted as in the operative
part of the American Declaration of the Rights and Duties of Man DADH, art. II, the
nationals of the States are only recognized the right to select their residence and to move
freely through the territory, and allusion to the right of entry is omitted. For its part, the
Universal Declaration of Human Rights
6
(UDHR) does expressly recognize in Article 13
the right of entry, without this being replicated in subsequent regulatory developments.
7
This may be due to the entrenched concept of sovereignty of the States that translates
4
The aforementioned project is part of the doctoral work conducted at the University of Seville, which ended
in 2012, but continues to generate products given the author's interest in the theme.
5
Signed in Bogotá in 1948 and amended by the Protocol of Buenos Aires in 1967, by the Protocol of Cartagena
de Indias in 1985, by the Protocol of Washington in 1992, and by the Protocol of Managua in 1993.
6
Adopted by the General Assembly of the United Nations on 10 December 1948, by resolution 217 A (III).
7
The right of entry is not recognized in the ICCPR or in the regional treaties.
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into the design of immigration policy through visas, entry controls and permanence of
foreigners.
8
1.2. Some applicable treaties
The normative omission of the right of entry is evidenced in the American Convention on
Human Rights (ACHR)
9
in Article 22, which states that: “Everyone who is legally in the
territory of a State has the right to move through it and to reside in it subject to legal
provisions” (OAS, 1969: 8). This is a reproduction of the provisions in the universal
context, since the ICCPR of 1966
10
in article 12 conditions the right of entry, freedom of
movement and residence, to persons who are legally within the territory of the State.
UN, 1966).
11
In accordance with the foregoing, it is clear that for the current IACHR, the
right of entry is non-existent and that from there, the States retain a high margin of
discretion that materializes in the restrictive exercise of the rights of foreigners.
In addition, the International Convention on the Elimination of All Forms of Racial
Discrimination (UN, 1965), in defining discrimination excludes the distinctions that
happen through the application of the concept of citizenship and non-citizenship (art.1.2
CERD), empowering countries to grant differentiated treatment not constituting
discrimination (Palacios, 2012).
2. The progressive contentious jurisprudence of the Inter-American
Court in favour of the rights of migrants
In the previous section some basic norms were enunciated, from which the States limit
the exercise of the rights of foreigners, evoking their national security, public order or
general interest. For this reason, it is appropriate to analyse the characteristics that the
jurisprudence of the Inter-American Court has had in this matter, since the court turns
to various methods of interpretation provided for in the Vienna Convention on the Rights
of Treaties (Olmos, 2017: 3). This will allow us to identify elements that demonstrate the
existence of a true evolutionary development that establishes some limits to the
sovereignty of States regarding the treatment of foreigners. In this reflection, progressive
development of human rights is understood as the normative and jurisprudential
evolution that results in the greater protection of the rights of foreigners as a path to
restricted equalization (Gomez, 2003). On the other hand, it is valuable to examine to
what extent the Inter-American Court makes use of its two functions to complement the
framework of the rights of foreigners, that is, if the considerations it reaches in the
exercise of the contentious function are replicated in the jurisprudence of the consultative
order.
8
Article 13 of the UDHR: “Everyone has the right to move freely and to choose his residence in the territory
of a State. Everyone has the right to leave any country, including his own, and to return to his country”.
9
Adopted in San José, Costa Rica, on 22 November 1969, effective on 18 July 1978.
10
Adopted and open for signature, ratification and accession by the General Assembly in its resolution 2200
A (XXI) of 16 December 1966, effective on 22 March 1976.
11
Article 12.1. Any person who is legally in the territory of a State shall have the right to move freely through
it and to freely choose his residence therein.
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2.1. A timely and guarantee ensuring jurisprudence
The contentious function of the Inter-American Court is set forth in Articles 61, 62 and
63 of the ACHR and is regulated in several norms of the Regulations of the same
corporation (OAS, 2009). The main purpose of this competence is to carry out a process
of normative application to specific facts to determine whether or not there were
violations in the light of the ACHR and derive from there international responsibility
against the alleged infringing State. Therefore, the Inter-American Court must issue a
judgment in which it will have to provide for measures of reparation, satisfaction or
guarantees of non-repetition. (Roa, 2015:64). This is how it is up to it to verify the
veracity of the denounced facts and decide if they can be considered a violation of the
ACHR. (Ventura and Zovato, 1989:165). Although the cases ruled by the Inter-American
Court regarding the rights of foreigners are not very numerous
12
, some issues can be
identified, including the right to nationality, expulsion of foreigners and respect for the
principle of non-refoulement, equality and non-discrimination, judicial guarantees and
due process.
2.1.1. The right to nationality is related to other guarantees
The Ivcher Bronstein vs. Peru
13
case (IACHR, 2001) sets a parameter for the protection
of the right to nationality by adoption of a naturalized Israeli citizen in Peru who had
previously renounced his nationality of origin and who, due by a decision of an authority
without competition, was at risk of statelessness. The Inter-American Court describes
the right to nationality as a natural and inherent state of the human being (IACHR, 2001:
para 86). It recognizes that the States, within their powers, regulate the acquisition and
loss of this power, but the said sovereign power finds a limitation in “(...) the
requirements of the integral protection of human rights” (IACHR, 2001: 88).
The ruling refers to previous advisory opinions
14
(IACHR, 1984) in which the importance
of nationality is recognized for the exercise of other rights, such as those derived from
statelessness (IACHR, 2001: paragraph 91 et seq.). Likewise, it demonstrates the tension
between the principle of sovereignty of the States and respect for human rights through
the development of internal regulations
15
(Carrillo, 2001: 32) to decide this type of issue.
In the case of the girls Yean and Bosico vs. The Dominican Republic
16
(IACHR, 2005)
17
,
the importance of nationality is reiterated and the Inter-American Court acknowledges
the ignorance of this right in legal systems as an injury to the dignity of the person
(IACHR 2005: para 179) every time the refusal by the Dominican State of the birth
registration results in the cancellation of rights and places those affected in circumstances
of extreme vulnerability (IACHR, 2005: para 180). For the IACHR, the right to nationality
implies, on the one hand, the right to have a nationality so that the individual enjoys
12
If compared with the one that the ECHR produced.
13
IACHR, Ivcher Bronstein vs. Peru case, Series C, No. 74, of 6 February 2001.
14
See Advisory Opinion issued by the Inter-American Court of Human Rights, OC-4 of 1984, Proposal to
modify the Political Constitution of Costa Rica related to naturalization, Series A, No. 4, para. 32.
15
See Carrillo, J., Soberanía de los Estados y Derechos Humanos en Derecho Internacional Contemporáneo,
second edition, Tecnos, Madrid, 2001, p. 32
16
IACHR, case of the girls Yean and Bosico vs. Dominican Republic, Series C, No. 130, of September 8, 2005..
17
The resolutions of provisional measures of 7 August 2000, 14 September 2000, 12 November 2000, 26 May
2001, 2 February 2006, 1 December 2011, 29 February 2012, and 7 September 2012 are of great
importance in the subject.
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judicial protection for the relationship established with the State and on the other, the
protection against arbitrary deprivation of the latter (IACHR, 2017: 11). In addition, that
States are obliged to refrain from implementing practices that may favour the increase
in statelessness cases (IACHR, 2017: 12).
For the Court, this right has a close relationship with the rights of children and the
protection of the family, since the arbitrary denial of the birth registration and its delay
constitutes a violation of the right to equality unknown of objective and reasonable
criteria (Arlettaz, 2015: 431) and accentuates the condition of vulnerability of minors, as
happened in the case of the girls Yean and Bosico vs. Dominican Republic
18
(IACHR,
2005).
For the Inter-American Court, States must refrain from impeding access to registration
and recognition of nationality by removing unnecessary requirements, especially when it
comes to minors (IACHR, 2005: para 171). The omission caused the girls to be stateless,
which resulted in victimization, as it established barriers to the exercise of a series of
essential rights such as; personality development, access to education, development of
own life project, access to the right to legal personality, right to name, dignified life,
adequate standard of living, and family life.
The case of Dominican and Haitian people expelled vs. Dominican Republic
19
(IACHR,
2014a) reiterates arguments of previous rulings on the treatment of Haitian or Haitian-
origin persons in that country. By studying the right to nationality and family life, it
addresses the best interests of the child from a differential approach
20
. The case
determines that the condition of irregularity is a personal administrative situation that
cannot be transferable or inheritable, meaning that the children of people who are
undocumented cannot be affected by this situation and their right to nationality will have
to be recognized (IACHR, 2014: para. 318). It is determined that the States may
sovereignly establish the form of acquisition of nationality, however, they will have to
reasonably set their restriction, so that a person who establishes links with the host State
may not be considered as a transient in any case, since this must comply with a
reasonable and temporary limit (IACHR, 2014: para 295).
From the considerations made, an evolutionary development of the scope of the right to
nationality and legal personality is identified, as it turns out to be an essential element
for the exercise of the right to name and for the effectiveness of nationality, which results
in the recognition of guarantees that not only impact on civil and political rights, but also
on economic, social and cultural ones.
2.1.2. Procedural guarantees: a human right of all people
The Vélez Loor v. Panama case
21
(IACHR, 2010) deals with the protection of the rights
to personal integrity and freedom and judicial guarantees based on human dignity
22
,
noting that although the States have the exercise of their sovereignty, the power to
18
IACHR, case of the girls Yean and Bosico vs. Domenical Republic, Series C, No. 130, of 8 September 2005.
19
IACHR, Dominican and Haitian people expelled vs. Dominican Republic Series C, No. 282, 28 August 2014.
20
Paragraphs. 82 -106, 212-140
21
IACHR, Velez Loor Vs. Panama case, Series C, No. 218, 23 November 2010.
22
This case concerns the arrest of Mr. Jesús Tranquilino Velez Loor, an Ecuadorian national detained in the
border area of Darién (Panama) by police authorities in this country for not having documentation proving
his stay in this country (par. 94).
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regulate the entry of nationals of other States has some limitations imposed by human
rights.
Respect for such principles does not imply that the State cannot initiate any action to
counteract irregular immigration, but that when adopting such measures, human rights
must be respected.
23
Foreigners detained in a social and legal environment different from
their own with linguistic barriers exposes them to a condition of particular weakness
24
(IACHR, 2010), an aspect that turns out to be incompatible in a democratic State.
The unworthy conditions of detention have been a concern for the Inter-American Court,
because “(…) they may result in a violation of the absolute prohibition of cruel, inhuman
or degrading treatment or punishment.
25
In this sense, the States cannot invoke
economic deprivations to justify conditions of detention that do not meet the minimum
international standards in this area and do not respect the dignity of the human being”
(IACHR, 2010: para 198). Likewise, these derive from a misconception that migratory
administrative offenses involve crimes, which criminalizes migration
26
. It should be borne
in mind that conditions worthy of detention should constitute good practice, applicable in
detention centres exclusively for migrants and in prison establishments (IACHR, 2015:
para 81) and comply with minimum circumstances such as legality, proportionality,
reasonableness and prohibition of arbitrariness, as stated in the Nadege Dorzema v.
Dominican Republic case. (IACHR, 2012: 133). From the foregoing, punitive migration
policies that are intended to stop migrants in an irregular situation are incompatible with
the ACHR (IACHR, 2014ª: 359).
In immigration cases, the due process is a fundamental right of every migrant regardless
of immigration status, which is recognized in the ACHR in Article 8. This is how every
administrative and judicial body of a State party must respect it (IACHR, 2017: 44) and
it is the duty of officials to be impartial and independent (IACHR, 2010: 108).
Another of the procedural guarantees in migratory causes consists of the obligation of
the State that the person is presented before the competent authority and once this has
happened, to watch over the fulfilment of the presumption of innocence in case an arrest
has taken place (IACHR, 2014: 371), allow the measure or sanction to be reviewed,
ensure that there are effective judicial remedies within the State (IACHR, 2010: 139),
access justice and have legal assistance (IACHR, 2010: 254) or consular assistance if
required, as happened in the case of Acosta Calderón v. Ecuador (IACHR, 2005ª: 125)
or establish communication with a person of his choice or consular agent, in case he has
been legitimately detained as stated in the Tibi vs. Ecuador case (IACHR, 2004: 112).
23
These opinions had already been revealed in the Advisory Opinion, OC-18 of 2003, which will be analysed
later in this paper.
24
See Ver IACHR Vélez Loor vs. Panama case, paras. 146-160
25
Committee against Torture, General Comment No. 2, Application of article 2 by States parties, 39 sessions,
2007, Doc. HRI/GEN/Rev.9 (Vol. II), of 27 May 2008. It is possible to point out that for the IACHR, the
prohibition of torture, cruel, inhuman or degrading treatment or punishment is absolute, and in what relates
specifically to immigrants, even those who are in a legal situation of irregularity, this rule has meant a
strong limit to the individual expulsions or deportations of persons when in their home state their lives may
be at risk or may be victims of torture, cruel, inhuman or degrading treatment or punishment.
26
The Report of the Special Rapporteur on the human rights of migrants, March 2011, paras. 13 and 15,
illustrates this. See Report of the Inter-American Commission on Human Rights, IACHR, Situation of human
rights of unaccompanied families, children and adolescents, refugees, and migrants in the United States of
America, 2015.
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2.1.3. Equality and non-discrimination as the axis for all rights
This normative prescription has great relevance, since it operates as an irradiating
principle for the interpretation of rights, but it is also drawn as an instrumental guarantee
for the application of other rights and even as an autonomous right. In the IACHR, it is
found in almost all international instruments. Its application in migratory matters is vital,
because although the right to equality is preached before the Law and discrimination is
prohibited, as is the case with national origin, it is also permissible for States to make
legitimate distinctions between nationals and foreigners, an aspect that is frequent in
immigration policies.
The Inter-American Court has indicated that equality has entered the “domain of jus
cogens” (IACHR, 2010: 248), which means that countries cannot tolerate behaviours that
constitute discrimination. Several analyses of the rights of migrants arise, ranging from
respect for the principle of equality and non-discrimination, such as the granting of
nationality, judicial guarantees, to the application of the principle of non-refoulement.
Despite this, in the case of Dominican and Haitian people expelled vs. Dominican
Republic
27
(IACHR, 2014a), it says that States can have differentiated treatment between
nationals and foreigners, as well as between documented and undocumented persons,
provided they have objective motives that are reasonable and compatible with human
rights (IACHR 2014a : para 403). This is frequent in the construction of migration policy
and proposes the tension between sovereignty to establish limitations on the rights of
foreigners and the emerging discussion about equality as a superior norm that is part of
the ius cogens. To this end, the States have been invited to combat discriminatory
practices at all levels and to adopt affirmative measures to guarantee equality of all
persons submitted to their jurisdiction before the Law (IACHR, 2005: 155), which
includes all migrants regardless of their legal status. This is because it seeks to ensure
that there is no discriminatory treatment against certain categories of people and that
progress is made towards a matching scheme between nationals and foreigners (Bosniak,
1991: 737).
2.1.4. Expulsion of foreigners and the principle of non-
refoulement: limitations on sovereignty
The expulsion prohibition or return of foreigners is a guarantee constructed within the
framework of the IACHR, both in the universal context
28
and in the regional one
29
and
which has been influenced by the principle of “non refoulment” typical of International
Refugee Law
30
. It has developed from the application of the right to freedom of
movement of foreigners within a State and is recognized in articles 22.8 and 22.9 of the
ACHR.
Regarding the expulsion of foreigners
31
, the Inter-American Court emphasizes that the
States are free to set entry and permanence requirements and that the expulsions
27
IACHR, Dominican and Haitian people expelled vs. Dominican Republic Series C, No. 282, 28 August 2014.
28
See, for example, article 13 of the Covenant on Civil and Political Rights and article 22 of the International
Convention for the Protection of the Rights of all migrant workers and their families.
29
In the case of the European Human Rights Protection System, it is recognized in Article 4 of Protocol no. 4
and Protocol no. 7, Optional to the 1950 Rome Convention.
30
This guarantee originally arises in article 33 of the Geneva Convention on the Status of Refugees of 1951.
31
Taking into consideration jurisprudence of provisional measures of Haitian and Dominican persons of Haitian
origin, in OC-No. 18 of 2003, among others. apply
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authorized by the IACHR are those in which there is an individual analysis of each case,
a due process and racial profiling is not produced
32
. The person's immigration history
should be consulted, the nationality, the impact on the family breakdown due to the
expulsion, the impact or disturbance in the life of the boy or the girl should be considered,
and collective expulsions expedited without guarantees should be avoided
33
(IACHR,
2014a). On the other hand, in migratory procedures, the purposes of the measures and
the deprivation of liberty will have to be strictly distinguished and should only be used if
necessary. Hence, immigration policies that involve compulsory detention are considered
arbitrary, especially if they affect minors and involve expulsion (IACHR, 2014a: para
360).
The case of the Pacheco Tineo Family vs. the Plurinational State of Bolivia expands the
scope of the prohibition by stating that the person may not be expelled or returned to
their State of origin or to a third State, in case their right to life or liberty is in danger
due to race, nationality, religion, social status, or political opinions (IACHR HR, 2013:
134), without any consideration for their immigration status, which shows a universal
guarantee for every person. This pronouncement is based on what the ECHR has
developed in this area (Salado, 2009:107), which limits the discretion of the States and
which has been an underdeveloped aspect in the IACHR.
Individual expulsions may take place in cases when an individual proceeding is carried
out with the characteristics already indicated, but it is a prohibition to perform them
collectively, since in the opinion of the Inter-American Court, such decisions lack an
objective analysis and are arbitrary (IACHR, 2012: 171).
3. The Advisory Opinions: elements that integrate rights
The advisory function of the Inter-American Court is classified as broad and unique in the
IACHR, if a comparison is made with the universal and European systems (Salvioli, 2006:
5). Article 64 of the ACHR sets its scope with regard to legitimation, matters of
interpretation and limitations (Nikken, 1999: 162). All American States members of the
OAS, without having to be part of the ACHR, have the possibility of making consultations,
as well as the specialized agencies of the OAS, which have competences in the area of
human rights. With regard to the matters on which it can rule, it has determined that not
only the norms emanating from the IACHR are within its competence, but also that it can
have a say about any provision related to the protection of human rights of any treaty
applicable to the American States, bilateral or multilateral in nature and that the OAS
States may be party to them, including the reservations made and other instruments
such as the DADH, and even on the compatibility of legislative projects of the States with
the ACHR (Nikken, 1999: 166).
The value of the Advisory Opinions (AO) has been the subject of debate in the doctrine,
since some maintain that they lack jurisdictional value (Faúndez, 1996: 450). However,
there are those who affirm that the Inter-American Court is an autonomous judicial
institution whose purpose is the application and interpretation of the ACHR, so its nature
and decisions are jurisdictional in nature, which implies that it is an auxiliary
32
The provisions of Article 12 of the ICCPR and the provisions of OG No. 15 of the Human Rights Committee
apply.
33
IACHR, Dominican and Haitian people expelled vs. Dominican Republic case, para. 379, and also IACHR,
Vélez Loor Vs. Panama case, para. 146.
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jurisprudence of the IACHR and that it has been invoked in a large number of contentious
cases (Nikken, 1999, 171), as happens in immigration.
To date, there have been three AO that refer to immigration or foreign persons’ issues
and they have been an evolutionary point for inter-American jurisprudence, since they
establish a minimum standard of treatment regarding rights.
3.1. Consular assistance as a nucleus for the exercise of rights
AO-16 evidences the link between the right to information in the framework of consular
assistance and the enjoyment of the rights inherent to the person according to the
ACHR
34
(IACHR, 1999). It analyses guarantees associated with due process and equal
access to justice, and also says that states must eliminate as many barriers as possible
to facilitate the right to effective defence through compensation measures in favour of
vulnerable individuals, as with foreigners
35
. It should be kept in mind that such omission
implies international responsibility from the State and creates the need to initiate a new
process with due notice before the consular authority (Ortiz, 2013: 127). These
considerations have been subject to pronouncement in contentious cases such as those
already analysed, which show that it is necessary that migrants have effective consular
attention from their States. Acosta Calderón vs. Ecuador (IACHR, 2005a: 125) and Tibi
vs. Ecuador (IACHR, 2004: 112).
3.2. The right to equality as an instrumental guarantee
AO-18 of 2003 addresses three major issues; consideration of the principle of equality
and non-discrimination as a “ius cogens” rule, recognition of some labour rights of
undocumented persons and expulsion guarantees.
Regarding the first, the Inter-American Court concludes that the principle of equality and
non-discrimination is a “jus cogens” rule on which all legal scaffolding of national and
international public order rests (Hennebel, 2004: 747). It states: “Today, no legal act is
admitted that conflicts with the said fundamental principle, discriminatory treatment is
not allowed to the detriment of any person on grounds of gender, race, colour, language,
religion or conviction, opinion political or other, national, ethnic or social origin,
nationality, age, economic situation, property, marital status, birth or any other
condition” (IACHR, 2003: 109).
Undocumented migrants must have decent treatment under the respect of certain
minimum guarantees, because “the regular situation of a person in a State is not a
necessary condition for that State to respect and guarantee the principle of equality and
non-discrimination, since, as already mentioned, this principle is fundamental and all
states must guarantee it to their citizens and to any foreign person in their territory”
(IACHR, 2003: 113).
34
See IACHR, Right to Information on consular assistance within the framework of the guarantees of due legal
process, para. 110 and following.
35
Ibid., para. 119. The Court indicated that: “(…) the real situation of foreigners who are subject to criminal
proceedings, upon which their most valuable legal assets and, eventually, their very life (…) depend, must
be taken into account. (…) The notification of the right to communicate with the consular representative of
their country will contribute to considerably improve their defence possibilities (…)” (para. 120).
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What the Court said does not imply that a policy of open doors is given freeway (Chueca,
2005: 124), as countries may initiate actions against migrants who do not comply with
the state legal system, it being legitimate to deal with documented and undocumented
migrants differently. This provided that this differential treatment is reasonable,
objective, proportional, and does not harm human rights (IACHR, 2003: paras 118 and
119).
Judgements on the importance of equality and the prohibition of discrimination have been
a recurring theme, which, together with vulnerability, have characterized the decisions
of contentious cases concerning migrants (IACHR, 2010: 248), (IACHR, 2014a), (IACHR,
2005: 155) and demonstrate the importance of evolving towards a path of equalization
of rights in favour of the recognition of the dignity of the person, without the States
completely losing their discretionary power to determine the contours of their
immigration policy.
Regarding the rights derived from the labour relationship, the Inter-American Court again
mentions human dignity and its importance for the rights of migrant workers. It states
that the enjoyment of fundamental labour rights guarantees workers and their families a
decent life. Workers have the right to perform a work activity in adequate and fair
conditions and receive remuneration that allows them and their family members to enjoy
an adequate standard of living compatible with dignity (IACHR, 2003: para 157).
This allows us to maintain that the Inter-American Human Rights System has made
significant contributions in the difficult equality route between nationals and foreigners,
and they have been worthy of being called “the certificate of quality in the field of human
rights” (Chueca, 2005b: 61).
It should be noted that in this AO-18, the Inter-American Court interprets provisions
contained in the Universal Declaration of Human Rights, (UDHR) (UN, 1948) and ICCPR,
requested in the consultation, and declares its competence in pointing out that they are
international instruments on human rights and bind the consulting State (IACHR, 2003:
para. 55). Although the consultation does not ask about aspects related to the
International Convention on the protection of the rights of all migrant workers and their
families (CRMW) (UN, 1990), the Court invokes this treaty because it considers it of vital
importance for the development of the Convention (IACHR, 2003: paras. 69, 70, 75, 86,
128, 131)
3.3. Good practices for the protection of migrant children
AO No. 21 of 2014 addresses the rights of children and its main contribution is to
recommend good practices to the States throughout the migration process. To this end,
the Court refers to the importance of interpreting the American Declaration of Rights and
Duties of Man, as well as its own jurisprudence
36
, the Convention on the Rights of the
Child (CRC) (UN, 1989) and the OG of the CR
37
(UN, 2005), considering them “opinio
iuris comunis” regarding the protection of children's rights and contributing decisively to
the interpretation of the ACHR (IACHR, 2014: 57). In addition, this AO also uses the
36
Dominican people of Haiti and Haitian origin vs. Dominican Republic case.
37
Committee on the Rights of the Child, OG-6/05, Treatment of unaccompanied children and separated from
their family outside their country of origin, 39 period sessions, 2005, Doc. CRC/GC/2005/6, 1 September
2005.
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interpretation of the rules applicable to migrants in order to complete the necessary
framework that provides protection to these persons with multiple vulnerability factors
and to determine the scope of the obligations of the States.
It warns that the scope of protection derived from the ACHR and other treaties will be
extended to every child, regardless of migration status, including refugees, migrants,
asylum seekers and stateless persons (IACHR, 2014b: para 95).
Within the main defined obligations, States must adapt their regulations based on the
application of the principle of useful effect (Sagüés, 2010: 118) for the enjoyment of
rights in the context of migration. Hence the importance of procedures that States must
take into account in the face of the risks that unaccompanied minors or separated from
their families may suffer (victims of trafficking, sexual exploitation, participation in
criminal activities or labour exploitation). To this end, it is necessary to have mechanisms
for early detection of children in situations of migratory vulnerability (IACHR, 2014b:
paras 90 and 93).
AO-21 points out the procedures to identify the international protection needs of migrant
children such as the granting of asylum and shelter, no deprivation of the freedom of
children regardless of their immigration status, creation of priority measures for the
protection of minors, accommodation special conditions (IACHR, 2014b: para 106),
respect for the principle of non-refoulement (IACHR, 2014b: para 207), and respect for
family life (IACHR, 2014b: para 263). Under this approach, the United Nations Human
Rights Council issued a report on the global problem of unaccompanied migrant children
and adolescents and human rights, which highlights the good practices proposed by the
IACHR in this area (United Nations General Assembly, 2017).
The foregoing allows us to maintain that the Inter-American Court does not seek to ignore
the sovereignty of the States. Still, they must adapt their legislation to international
treaties and develop a series of good practices in immigration matters, including:
privilege the human rights approach, promptly identify minors at risk, respect due
process, the right of children to personal liberty and return procedures may not at any
time endanger the life or integrity of minors.
In this ruling, the Inter-American Court has resumed the considerations already made in
contentious cases that have failed, in which the rights of children, the double vulnerability
of minors and the protection of the family are the guiding axes of the decision, as
happened in cases already analysed in contentious jurisprudence (IACHR, 2014a),
(IACHR, 2005). According to the inter-American jurisprudence in this matter, the
beginning of a new stage in the integral protection of the rights of children could be
considered (Beloff, 2009: 17), since it sees minors in migratory status as a special
protection objective within the IACHR.
4. Conclusions
The aforementioned jurisprudence shows that for the Inter-American Court, the issue of
the rights of foreigners and immigrants has been of recent treatment, as in their decisions
they have not been a cross-cutting issue addressed over the years. Despite this, it is
possible to identify some contributions to the IACHR that have been produced thanks to
the permanent dialogue between contentious decisions and the exercise of the advisory
function. This is because in the latter, the Inter-American Court has been able to integrate
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in the framework of foreigners' rights interpretation parameters from the universal
system that reinforce compliance with the obligations arising from the inter-American
framework. This is the case of the application of the standards set by the CRC that have
been inspiring to provide better protection for the rights of migrant children and people
in need of international protection.
On the other hand, it is worth noting that the rulings of the jurisprudence regarding
migrant workers have risen to a higher standard, the principle of equality and non-
discrimination, which is vital for countries to move towards recognition of the rights of
these people under optimal parameters of dignity. Although there have not yet been
contentious decisions regarding the rights of migrant workers, it is possible that the
impact of AO-18 may favour the protection framework in this area.
The existing judgments, to a large extent, have addressed the protection of the rights
regarding legal personality, name, nationality, prohibition of expulsion and requirements
for it, as well as the application of the principle of equality and non-discrimination, labour
rights, and derived benefits of the employment contract, regardless of the legal status of
the immigrant. Likewise, it has studied issues such as guarantees in conditions of
detention, children's rights and, more recently, it has recommended strict care protocols
for unaccompanied minor migrants or those separated from their families. In this way,
the rights of migrant workers and migrant children have set the guidelines for what can
be considered an evolutionary development of jurisprudence in this area, giving rise to
what may later be a corpus iuris in matters of migrants’ rights.
The protection of these rights through the interpretation of the Inter-American Court
constitutes a limitation to the sovereign power of the States, since in contentious cases
it has imposed sanctions and reparation measures that must be accepted by the States;
on the other hand, in the case of advisory opinions, they have set parameters for the
interpretation of the norms that may well be assumed by the States in order to comply
with the obligations derived from the treaties without implying a condemnation, that is
to say, a construction of a favourable legal framework for migrants with a highly
constructive sense.
Accordingly, it is necessary to have rulings with differential approaches in favour of
migrant women and girls, as well as older adults, people with disabilities, LGBTI
population and other differentiated groups, given that such issues have not yet been
addressed. Also, taking into account that the legitimacy for the formulation of the
consultations allows some bodies of the IACHR resort to interpretation, it would be
appropriate that, for example, the Inter-American Commission of Women, the American
Indian Institute and the Inter-American Children's Institute, could activate authority in
order to achieve other rulings in these respect and achieve greater progress in the
protection of rights.
Finally, in the decisions analysed by the Inter-American Court, elements of the advisory
jurisprudence that have been used for the resolution of matters in contentious situations
are found, as well as some axes for decision making in favour of the rights of migrants,
including the concept of vulnerability, human dignity, equality and non-discrimination.
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OBSERVARE
Universidade Autónoma de Lisboa
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Vol. 10, Nº. 2 (November 2019-April 2020), pp. 141-151
BETWEEN FREEDOM OF CONTRACT AND THE PRINCIPLE OF GOOD FAITH: AN
INSIDE VIEW ON THE REFORM OF PRIVATE LAW OF KAZAKHSTAN
Kamal K. Sabirov
sabirov.k@gmail.com
PhD student in Legal Sciences at L.N. Gumilyov Eurasian National University and Senior
Researcher at the Institute of Legislation of the Republic of Kazakhstan. He is the author of more
than 40 scientific articles in Kazakh and Russian languages in the field of private law issues and
active participant of the law making process in Kazakhstan.
Venera T. Konussova
konussova@mail.ru
Deputy Director of the Institute of Legislation of the Republic of Kazakhstan; PhD in Legal
Sciences. She is one of the developers of the Enterprise Code of the Republic of Kazakhstan and
one of the authors of the Kazakhstan’s law on advocacy.
Marat A. Alenov
lscc@mail.ru
Doctor of Law, Professor at L.N. Gumilyov Eurasian National University. He is one of the lead
experts in Civil Procedure in Kazakhstan. He is the author of a large number of works in the field
of private law and civil procedure.
Abstract
Over the years since Kazakhstan gained independence there have been cardinal changes in
the country's economy associated with the inflow of foreign investments. These changes
require the implementation of foreign experience in regulating economic relations and in
particularly foreign contractual institutions. The International Financial Center "Astana" has
started functioning in Kazakhstan since 2018. The acts of the International Financial Center
are based on the principles and norms of law of England and Wales. In this regard, a large-
scale reform of the private law of the Republic of Kazakhstan was launched, aimed at
identifying a number of civil-law ideas and designs that can be measured out in the Kazakh
legislation from English law. The authors of this research are direct participants of the reform.
This study is aimed at highlighting one of the issues considered within the framework of the
reform of private law: strengthening the role of the principle of freedom of contract and the
principle of good faith in the contract law of the Republic of Kazakhstan.
Keywords
Principle of good faith; freedom of contract; bona fide purchaser; legislation of Kazakhstan;
private law of Kazakhstan
How to cite this article
Sabirov, Kamal K., Konussova, Venera T.; Alenov, Marat A. (2019). "Between freedom of
contract and the principle of good faith: an inside view on the reform of private law of
Kazakhstan". JANUS.NET e-journal of International Relations, Vol. 10, N.º 2, November 2019-
April 2020. Consulted [online] on the date of the last visit, https://doi.org/10.26619/1647-
7251.10.2.10
Article received on March 5, 2018 and accepted for publication on September 25, 2019
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Between freedom of contract and the principle of good faith:
an inside view on the reform of private law of Kazakhstan
Kamal K. Sabirov, Venera T. Konussova, Marat A. Alenov
142
BETWEEN FREEDOM OF CONTRACT AND THE PRINCIPLE OF GOOD FAITH: AN
INSIDE VIEW ON THE REFORM OF PRIVATE LAW OF KAZAKHSTAN
Kamal K. Sabirov
Venera T. Konussova
Marat A. Alenov
Introduction
Despite the fact that the legal system of the Republic of Kazakhstan is the part of the
Civil law, it was formed under the influence of the Soviet legal system and inherited many
elements from it. The private law of the Republic of Kazakhstan is much like Russian
private law. This is not surprising because both systems of private law are based on the
model code of the CIS countries and also had a common history of formation within the
framework of Soviet civil law. Nevertheless, more than 27 years have passed since the
collapse of the Soviet Union and the private law of the CIS countries has altered
appreciably (Akyn and Rakhymbai, 2017).
The reform of civil legislation has been ongoing for several years in the Russian
Federation. A number of legislative acts were adopted to amend the Civil Code of the
Russian Federation; in particular the obligation law was reformed. In the course of this
reform some legal institutions of common law were implemented.
The International Financial Center “Astana” has started functioning in the Republic of
Kazakhstan since 2018. The court of the International Financial Center relies on English
contract law, in this connection it can be stated that the process of implementation of
elements of common law into the legal system of the Republic of Kazakhstan is objective.
In connection with the beginning of the activity of the International Financial Center a
large-scale reform of the legislation on the implementation of certain provisions of English
and European law is under way. The participants of this reform are the authors of this
article. At present, the Ministry of Justice developed a draft Concept for the future bill,
which immediately aroused maximum discussion in the scientific and legal community
(Konussova and Nesterova, 2016).
The purpose of the reform of civil legislation in the Republic of Kazakhstan is the
modernization and development of private law. In this regard, it was necessary to
compare approaches to the regulation of similar institutions, understand the legal logic
and identify points of contact with it. And only on this basis to deny or to accept
innovations that common law brings to the development of continental law.
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Kamal K. Sabirov, Venera T. Konussova, Marat A. Alenov
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Due to the fact that the civil legislation of the Republic of Kazakhstan and the Russian
Federation are largely similar, considerable attention was paid to the Russian experience.
But according to the respective Kazakh legal scientists, not all the ideas embodied in the
course of the reform of Russian private law can be considered as successful (Sulejmenov,
2016).
The reform of private law in the Russian Federation was confronted with conflicting
opinions between supporters of English contract law and adherents of the classical
German law school. Ultimately, during the reform an attempt to find a compromise, and
amendments of both sides were taken into account.
During the preparation of the draft law various issues were raised, including the
strengthening of the role of judicial practice, the development of the principle of good
faith and the principle of freedom of contract, the introduction of the concept of
"corporation" and legislative regulation of corporate relations, the development of holding
legislation, the implementation of individual institutions of contract law (estoppel,
liquidated damages, representations and warranties, indemnity clause, etc.). Thus, the
reform envisaged quite revolutionary changes in the current legislation, which logically
provoked resistance from conservative lawyers. In the end, some of the proposed
innovations of the project had to be abandoned.
Within the framework of this article, it is proposed to discuss one of the elements of the
reform of private law in the Republic of Kazakhstan, namely, the expansion of freedom
of contract and as a counterbalance the strengthening of the principle of good faith.
Generally, in contract law there are two fundamental principles coexisting: the principle
of freedom of contract and the principle of good faith in performance of the contract. And
if English law more attention is paid to the principle of freedom of contract, in continental
law the principle of good faith can be considered as a fundamental principle.
The freedom-of-contract doctrine implies that the parties of the contract have exactly
the same obligations as those provided in their contract. The principle of good faith
suggests that the parties of the contract have in front of each other a whole range of
other obligations that arise not from the contract but from the requirement to act in good
faith, as it is understood by this law and order. The principle of good faith can also exempt
a party from the performance of its contract obligations if this rule of law considers it fair
in this situation. Also, relying on the concerned principle the court can assign the
responsibilities to the party that were not prescribed in the contract. All this contradicts
the principle of freedom of the contract.
As a part of the ongoing reform of private law in Kazakhstan, there was an attempt to
find a compromise between the principle of good faith and freedom of contract.
Research Methods
We undertook an analysis of existing legal norms, as well as the content of research
materials of Kazakh, Russian, English, American and German specialists in the field of
private law with the purpose of comprehensive analysis of some issues of the reform of
private law of the Republic of Kazakhstan. During the research were used the works of
both Kazakh and foreign authors - representatives of the German and English law
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Kamal K. Sabirov, Venera T. Konussova, Marat A. Alenov
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schools. The methodological basis of the study includes: system analysis, comparison,
theoretical and legal forecasting.
Main results and discussion
Expanding The Limits Of Freedom Of Contract
The historical roots of the principle of freedom of contract can be traced back to the
Roman law that gave great priority to the free expression of the will of a person and
denied any extraneous pressure. The principle of freedom of contract reached its peak in
the middle of the nineteenth century after that it began to increasingly restrict itself to
various legal orders.
In the United States freedom of contract is recognized as one of the constitutional rights
of a citizen. The Supreme Court confirmed the strengthening of this right in the case of
Frisbie v. United States, 157 U.S. 160 [1895] (Bernstein, D., 2008).
In general, we can distinguish three basic elements of freedom of contract: the freedom
to conclude a contract, the freedom to choose a contract and the freedom to determine
the content of the contract.
Here is how these elements are described in the comments to the Civil Code of the
Republic of Kazakhstan: "Any person, at his own discretion and under no coercion from
the outside, has the right: a) to decide whether to enter into or not to enter into a
contract; b) to elect a partner who wish to conclude a contract; c) to determine the terms
of the contract".
Controversial are the contracts which although not explicitly prohibited by law can be
considered unethical or immoral. For example such contracts are the contracts on
transplantation of human organs, which cause controversy among their supporters and
opponents (Trebilcock, 1993).
It is also necessary to touch on the issue of limiting the
principle of freedom of contract. There are separate cases of restriction of freedom of
contract even in English law. To such Craswell includes rules against liquated damages
and rules that prohibits the enforcement of promises unsupported by consideration
(Craswell, 1995).
The civil legislation of the Republic of Kazakhstan in paragraph 4 of Article 8 of the Civil
Code of the Republic of Kazakhstan establishes general requirements for the behavior of
citizens and legal entities. These evaluative concepts make it possible to establish general
limits of the contract, limiting the parties from abuse.
In addition, the operation of the principle of freedom of contract has certain exceptions,
assigned in legislative norms. Article 380 of the Civil Code of the Republic of Kazakhstan
prohibits compulsion to conclude a contract, while clarifying that this does not apply to
cases where the obligation to conclude a contract is provided for by the legislation or a
voluntarily accepted obligation.
The principle of freedom of contract plays a key role in the development of economy and
market relations. In the opinion of A. Didenko the contract serves as an instrument for
“democratization” of the economy and through it the society (Didenko, 2000). The
principle of freedom of contract is a logical continuation of the rights and freedoms
guaranteed by the Constitution of the Republic of Kazakhstan from this point of view.
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Kamal K. Sabirov, Venera T. Konussova, Marat A. Alenov
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As it follows from the Constitutional provisions in respect of the realization of the rights
and freedoms of the citizens, a discretion method of regulating legislation is used,
permitting what is not directly prohibited by the laws. The principle of discretion in
relation to the realization by man of his rights and freedoms is assigned in the Article
29.2 of the Universal Declaration of Human and Civil Rights and Freedoms, which states
that "everyone shall be subjected only such limitations that are determined by law solely
for the purpose of securing due recognition and respect for the rights and freedoms of
others".
Nevertheless, despite these rules the civil legislation of the Republic of Kazakhstan
presupposes the mandatory nature of rules of contract law. Discretion of norms is
presumed only if there is a special clause in it "unless otherwise provided by the
agreement of the parties". The rules that don’t have such clause are considered as
mandatory.
On the other hand, we note that there are mandatory norms that underline their
imperative nature with a special clause in the civil law. Currently, judicial practice shows
that in disputable issues the issue of determining the nature of the norm is decided by
the court.
In this regard, it seems natural to expand the principle of freedom of contract to improve
the business environment. At the same time it is necessary to develop the natural
limitations of the principle of freedom of contract through the principle of good faith.
Basin noted that the principles laid down in the civil legislation of the Republic of
Kazakhstan are directly opposed to those basic principles on which the previous Civil
Code of the Kazakh SSR was built (Basin, 2003). The soviet law proceeded from the fact
that it is possible to do only what is permitted by the law. All this suggests that the
discretionary norms of the contract law should be presented in the civil law in a larger
extent than the mandatory norms. However, as pointed out by Klimkin, contract law,
where the principle of freedom of contract should “work” fully, consists of mandatory
norms for almost of 90% (Klimkin, 2014).
Thus, the civil legislation of the Republic of Kazakhstan proceeds from an approach that
presupposes the mandatory norms if the norm does not directly establish its mandatory
nature. In other words, "everything that is not permitted by law is prohibited". This
restriction does not comply with the basic principles of the civil law; rights and freedoms
guaranteed by the Constitution, as well as worldwide practice and it requires the changes.
In order to work out the best option for expanding the limits of freedom of contract, it is
necessary to consider existing ways of limiting this principle. In the opinion of S. V.
Scriabin there are two main trends in the restriction of contractual freedom. The first
implies the inclusion in civil law special clauses, for example, indicating the need to
exercise civil rights in good faith, reasonably and fairly (Clause 4, Article 8 of the Civil
Code of the Republic of Kazakhstan). The second implies the strengthening in the law of
mandatory rules regarding the conditions of the certain types of contracts (Scriabin,
2003).
Analysis of civil legislation of the Republic of Kazakhstan shows the application of both
ways of restricting freedom of contract. Restriction of freedom of contract by means of
general reservations is typical for the norms on disputable transactions, and restriction
of freedom of contract by direct restrictions for the rules on null transactions.
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Based on the above, we believe that the extension of the principle of freedom of contract
should not come from the idea of eliminating the existing limitations of the principle of
freedom of contract, but from the strengthening of permissive beginnings in legislation.
Summarizing, the principle of freedom of contract is currently a fundamental principle of
civil legislation. Nevertheless, in order to ensure the full protection of this principle in
business transaction, it is necessary to significantly clarify the norms of civil legislation
for strengthening the freedom of contract.
First, it is necessary to add to article 2 of the Civil Code of the Republic of Kazakhstan
clarification that the freedom of contract is indeed the principle of civil law. Secondly, the
protection of the principle of freedom of contract can be achieved by strengthening the
discretion nature of the civil law.
The introduction of appropriate changes will significantly improve the civil legislation of
the Republic of Kazakhstan and make it friendlier for the business environment.
Strengthening The Principle Of Good Faith
An indication of the requirements of good faith, justice and reasonableness appeared in
the continental law under the influence of the French revolution which took the ideas of
individual freedom, equality before the law and justice. These principles contributed to
the development of social relations, ideas about the free expression of the will of the
individual on the basis of contracts concluded with other persons. Almost all the systems
of law of countries that identify themselves with the Civil law contain one or more
provisions on good faith (Mackaay, 2011).
The principle of good faith also plays a central role in the law of mixed type (based on
both common and civil law). For example, in the state of Louisiana the principle of good
faith is applied in the law on general and conventional obligations, commercial law, family
law, property law, etc. (Lovett, 2018).
There is practically no single definition of the concept of good faith in the law. But
nevertheless this principle plays an important role, especially in the contract law
(Podshivalov, 2018).
In the common law each contract implies the existence of good faith in its interpretation
and enforcement. At the same time good faith is perceived as the absence of bad faith.
In continental law good faith is observed as a category of morality and as a requirement
that walks the line in the behavior.
The principle of good faith has a key role in the German law. German courts feel entitled
and even obliged to interfere in the contractual relations when these relations are unfair
to one of the parties. As for France, the principle of good faith in the contract relations
was present in it since the Code of Napoleon.
In our opinion, the importance of the principle of good faith proved by the UK experience,
where it has been unrecognized for a long period of time. As Mackaay notes, it was the
English lawyers who resisted this doctrine most of all. Unlike the US law, where good
faith is recognized in the pre-contractual legal relations, English law has treated this
institution critically (Mackaay, 2011). For example, the right of the court to challenge the
terms of the consumer contract ex post under the aegis of the fight against unfair contract
terms was recognized in England only in the early 1990s and then only under the pressure
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of obligations to the EU. This followed by a lively discussion among European and British
lawyers about how much economic integrity should prevail over cultural and national
identity (Collins, 1994).
Let us cite a few positions of the English courts of the early 1990s that regulate the
question of applying to the principle of good faith:
“There is no general doctrine of good faith in English law of contract.
The injured parties are free to act as they wish, provided that they
do not act in breach of the term of the contract” (JamesSpencer&Co
Ltd. v. Tame Valley Padding Co Ltd. [1998]).
“The duty to negotiate in good faith is unworkable in practice”
(Walford v. Miles [1992]).
In these cases, the court preferred the application of the principle of freedom of contract
and judicial competition. This was the principal position of English law, which elevated
the freedom of contract to the fundamental principle of the contract law for a long time.
Meanwhile it is obvious to lawyers of the civil law tradition that the absolute freedom of
the contract contradicts the fair consideration of the case.
However, the position of English courts in recent years has changed markedly. In the
case of Yam Seng PTE Ltd v International Trade Corporation (ITC) Ltd. [2013], the court
has spoken on the principle of good faith, recognizing that the traditional positions of
English law regarding good faith is unreasonable (Poole, 2012).
"Good faith" in the US law was finally normatively defined in the codification in the
Uniform Commercial Code (U.C.C.). In this document, an objective approach to
determining honesty was applied to the definition of this concept. So it’s a general
concept that can be compared not only with the principle of good faith in Roman-German
law, but also with evaluative concepts of rationality, justice and business ethics.
All this points to the importance of the principle of good faith.
The principle of good faith sum up business contracts, both in continental and common
law. For example, paragraph 4 of Article 8 of the Civil Code of the Republic of Kazakhstan
states that "good faith, reasonableness and fairness of actions of participants of legal
relations are assumed". Thus, good faith is implied in each contract concluded, as well
as the actions of the business entity. The principle of good faith is aimed at the formation
of a model behavior, based on the prevailing in the society ideas about the honest image
of thoughts, respect for the fair interests of others, the permissible degree of selfishness
in legal behavior (Mikryukov, 2013). If we overview the principle of good faith from this
perspective, it becomes clear that good faith underlies almost all private law and it is a
general principle of the private law.
In the civil legislation of the Republic of Kazakhstan good faith is used in two meanings:
objective and subjective. It’s a traditional position of German legal doctrine which
emphasizes good faith in the subjective meaning “guter Glauben” and in the objective
meaning “Treu und Glauben” (Wieacker, 1956).
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In an objective meaning good faith is understood as a "good conscience" i.e. a moral and
ethical category and a principle of civil law based on moral and ethical beginnings. In the
subjective meaning good faith is understood as a concrete, subjective state of a person
and its compliance with certain criteria based on the moral ethical principle of good faith.
Also the reasonableness and fairness of actions of participants of civil legal relations are
supposed according to paragraph 4 of Article 8 of the Civil Code of the Republic of
Kazakhstan good faith. This norm marks good faith as a presumption.
It should also be taken into account that the category of good faith has a moral and
ethical content. Therefore, in the civil legislation of the Republic of Kazakhstan there is
no definition of the concept of "good faith" as in the case of such a definition, good faith
could not be used as a moral assessment of the issue of protection of civil rights.
However, the question remains unresolved of whether it is possible to consider the
requirements of good faith mentioned in the paragraph 4 of Article 8 of the Civil Code of
Kazakhstan as a principle of the law. At the same time, good faith in the civil legislation
of the Republic of Kazakhstan was not elevated to the category of the basic principles of
civil law mentioned in the Article 2 of the Civil Code of the Republic of Kazakhstan. This
causes a number of issues in the law enforcement practice.
Nevertheless, specification of the term “principle” in the text of the Civil Code of the
Republic of Kazakhstan in relation to the requirements of good faith could remove most
of the questions regarding the content of the basic principles of the civil law.
Taking into account the controversy over the issue of the relationship between the
concepts of “principles” and “basic principles” it seems necessary to clarify in the text of
the Civil Code that good faith is a general principle of private law. This would strengthen
the principle of good faith in the civil legislation of the Republic of Kazakhstan and have
a positive impact on civil circulation, significantly strengthening the protection of the
rights of its participants.
Moreover, the consolidation of good faith as a principle of private law will significantly
expand the scope of application of this institution, extending its effect to all civil legal
relations, including relations on creation, change and termination of civil rights and
obligations, protection of rights and interests.
Possible risk of such approach is that the courts will get a strong tool to regulate relations
in the form of good faith. This risk can be compensated through control over the judicial
practice which can be carried out by the Supreme Court of the Republic of Kazakhstan.
Currently the Supreme Court of the Republic of Kazakhstan has experience of
generalization and explanation of judicial practice. This experience can be extended to
the application of the principle of good faith by the courts.
In the Republic of Kazakhstan, legislative explanations of the Supreme Court are
attributed to the law in force and are adopted in the form of regulatory decisions, i.e. as
acts containing the norms of law, although the scientific doctrine has not developed a
consensus on the legal nature of such legal acts of the Supreme Court of the Republic of
Kazakhstan.
In addition to legislative explanations the Supreme Court of the Republic of Kazakhstan
also publishes collections with explanations of legal practice –Ylgi, which in Kazakh means
“sample”. Despite the fact that these collections are not official regulatory legal acts they
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have a respective opinion for the courts. Some Kazakhstan scientists put forward the
idea of giving these collections certain legal force.
As a part of the ongoing reform of private law, we attempted to give these collections a
recommendatory character, a kind of analogue of the case law (Konussova and
Nesterova, 2016).
Unfortunately, this idea was not supported by Kazakhstani academic lawyers and at the
moment it’s no longer the part of the private law reform project.
However, the Supreme Court of the Republic of Kazakhstan may adopt regulatory
decisions that clarify the lower courts the practice of applying certain norms. It is
necessary to delineate the boundaries of the principle of good faith through these
resolutions which ultimately protects against the abuse of this principle by the courts.
In consideration of the foregoing, it is necessary to include good faith into the Article 2
of the Civil Code of the Republic of Kazakhstan, as well as to clarify it as a principle of
law. It should be borne in mind that the current article 8 of the Civil Code of the Republic
of Kazakhstan limits the application of the principle of good faith. Thus it seems necessary
to extend this principle to all civil relations including relations on the creation, change
and termination of civil rights and obligations.
Conclusions
In the course of the reform of the private law of the Republic of Kazakhstan it became
necessary to expand the principle of freedom of contract. In this regard, the developers
of the draft of the future law came up with a choice of a possible solution to the issue.
Initially, the most logical was the option of revising the mandatory norms of the civil
legislation of the Republic of Kazakhstan to expand the default beginnings of legislation.
However, this option required a lot of work to go beyond the project to implement certain
provisions of English law and could not cover all the norms of the civil law. In addition,
within the framework of one project, it is impossible to determine all possible options for
abusing the principle of freedom of contract or the exceptions to this principle.
In this regard, it was decided to stay on two possible options for expanding the principle
of freedom of contract.
Thus, a possible way of expanding the principle of freedom of contract is to transfer to
the courts right to interpret controversial rules of the law that do not contain indications
of mandatory or decretive nature. This option used in Russia and a number other states.
If the norm does not prohibit the approval of other provisions, nor a direct reference to
the right of the parties to agree on other provisions, then the norm shall be determined
by the interpretation of the court.
Alternatively it was possible to accept an approach that presumes the discretion nature
of the law if it does not have a mandatory prescription. Nevertheless, this approach may
entail cases of abuse of the principle of contractual freedom. However, this approach may
entail cases of abuse of the principle of contractual freedom, as it will require, as in the
first version of the revision of a large number of norms, in order to allow the parties to
withdraw from it. Ultimately, it was decided to stop on this option.
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an inside view on the reform of private law of Kazakhstan
Kamal K. Sabirov, Venera T. Konussova, Marat A. Alenov
150
In order to smooth out possible negative effects from the expansion of the freedom of
contract, the principle of good faith was also significantly strengthened. Expansion of
the principle of freedom of contract will entail the inevitability of improving the system
of checks from the unfair behavior of participants in civil turnover. In this regard, the
principle of good faith may be a way to limit the principle of freedom of contract.
A significant difficulty was caused by the exclusion from the reform of private law issues
of strengthening judicial practice. Nevertheless, even the current legislative mechanisms
in the Republic of Kazakhstan can solve the problem of applying the principle of “good
faith”. In addition to regulatory changes it is necessary to improve systematically the
culture of enforcement. The country has gained experience in generalizing and clarifying
judicial practice under the leadership of the Supreme Court of the Republic of Kazakhstan,
this experience can be extended applying the principle of good faith.
At present, the draft implementation of the norms and provisions of the English contract
law into the civil law of the Republic of Kazakhstan is close to completion.
References
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Kazakhstan: Legal Framework, Opportunities and Challenges, 20(3), Journal of Legal,
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and legal system of Kazakhstan]. Pravo i gosudarstvo, 3(72), pp.37-45.
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OBSERVARE
Universidade Autónoma de Lisboa
e-ISSN: 1647-7251
Vol. 10, Nº. 2 (November 2019-April 2020), pp. 152-165
THE OBSERVANCE OF HUMAN RIGHT TO FREEDOM FROM TORTURE IN
PROFESSIONAL ACTIVITY OF THE NATIONAL POLICE OF UKRAINE
(ARTICLE 3 OF THE CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS
AND FUNDAMENTAL FREEDOMS)
Andrii Voitsikhovskyi
voitsihovsky@gmail.com
Associate Professor of the Department of Constitutional and International Law of Faculty 4 of
Kharkiv National University of Internal Affairs (Ukraine). Ph.D. in Law.
Oleksandr Bakumov
bakumov.aleks@gmail.com
Associate Professor of the Department of Constitutional and International Law of Faculty 4 of
Kharkiv National University of Internal Affairs (Ukraine). Ph.D. in Law.
Olena Ustymenko
ustimenko2312@gmail.com
Associate Professor of the Department of Constitutional and International Law of Faculty 4 of
Kharkiv National University of Internal Affairs (Ukraine). Ph.D. in Law.
Vadym Seliukov
vadim.selyukov@gmail.com
Associate Professor of Department of Police Administrative Activity of Kharkiv National University
of Internal Affairs (Ukraine). Ph.D. in Law.
Abstract
The article considers the issue of observance by the bodies of the National Police of Ukraine
of human right to freedom from torture or inhuman treatment or punishment.
The practice of the European Court of Human Rights testifies that Ukrainians are increasingly
applying to the Court for violations of the prohibition of torture or inhuman treatment by the
police.
The authors noted that the responsibility of the bodies of the National Police of Ukraine to
prevent violations of human rights to freedom from torture or inhuman treatment was
enshrined both in national law and in international legal documents, especially in the
Convention for the Protection of Human Rights and Fundamental Freedoms of 1950. The
application of the provisions of the Convention, as well as the decisions of the European Court
of Human Rights as an integral part of its law enforcement practice, will contribute to the
development of the protection of human rights in Ukraine.
Summarizing the practice of the European Court of Human Rights in relation to Ukraine
regarding violations of Article 3 of the Convention, the authors of the research singled out
certain requirements that are binding on the bodies of the National Police of Ukraine.
The observance of national legislation, application of the provisions of the Convention for the
Protection of Human Rights and Fundamental Freedoms and the practice of the European
Court of Human Rights will contribute the increasing of the public trust and respect for the
law enforcement agencies, including the National Police of Ukraine and improving the
efficiency of the Ukrainian justice system.
Keywords
Torture or inhuman treatment, or punishment; European Court of Human Rights; Convention
for the Protection of Human Rights and Fundamental Freedoms; National Police of Ukraine.
How to cite this article
Voitsikhovskyi, Andrii; Bakumov, Oleksandr; Ustymenko, Olena; Seliukov, Vadym (2019).
"The UN in Conflict Resolution: the case of East Timor". JANUS.NET e-journal of International
Relations, Vol. 10, N.º 2, November 2019-April 2020. Consulted [online] on the date of the
last visit, https://doi.org/10.26619/1647-7251.10.2.11
Article received on March 3, 2018 and accepted for publication on August 28, 2019
JANUS.NET, e-journal of International Relations
e-ISSN: 1647-7251
Vol. 10, Nº. 2 (November 2019-April 2020), pp. 152-165
The observance of human right to freedom from torture in professional activity of the national police of
Ukraine (article 3 of the Convention for the protection of human rights and fundamental freedoms)
Andrii Voitsikhovskyi, Oleksandr Bakumov, Olena Ustymenko, Vadym Seliukov
153
THE OBSERVANCE OF HUMAN RIGHT TO FREEDOM FROM TORTURE IN
PROFESSIONAL ACTIVITY OF THE NATIONAL POLICE OF UKRAINE
(ARTICLE 3 OF THE CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS
AND FUNDAMENTAL FREEDOMS)
Andrii Voitsikhovskyi
Oleksandr Bakumov
Olena Ustymenko
Vadym Seliukov
Introduction
One of the most important tasks of the state is to abide Article 3 of the Constitution of
Ukraine on the protection of human’s life and health, honour and dignity, inviolability and
security. In order to protect these rights and freedoms of citizens of Ukraine, the
Fundamental Law (Article 28) states that no one shall be subjected to torture or to
inhuman or degrading treatment or punishment [1].
Adhering to the specified constitutional requirements is the main duty of law enforcement
bodies of Ukraine, in particular the bodies of the National Police of Ukraine, which take
actions to eliminate the threats to the life and health of individuals and public security
resulting from a criminal offense (Article 23 of the Law of Ukraine “On the National
Police”)[2].
Accession to the Council of Europe and ratification of the Convention for the Protection
of Human Rights and Fundamental Freedoms of 1950 in July 17, 1997 incorporated
Ukraine in the European system of human rights protection, which includes not only the
obligation to protect and observe the rights and freedoms enshrined in the Convention,
but also recognition of the jurisdiction of the European Court of Human Rights. At the
same time, this means that the activities of all public authorities of Ukraine, in particular,
judicial and law enforcement agencies, their decisions and procedures, which are used,
should not be in conflict with the provisions of the Convention.
The observance of human rights by the National Police of Ukraine is increasingly
becoming the subject of discussion in the media, in academic community, and is the
focus of contentious political debate. Certain cases of torture, ill-treatment, use of
evidence obtained through inhuman treatment, lack of effective investigation of
applications and communications on this issue cause a serious public response and
adversely affect the credibility of the police authorities and the entire national law
enforcement system.
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The observance of human right to freedom from torture in professional activity of the national police of
Ukraine (article 3 of the Convention for the protection of human rights and fundamental freedoms)
Andrii Voitsikhovskyi, Oleksandr Bakumov, Olena Ustymenko, Vadym Seliukov
154
According to Clause 4 of Article 7 of the Law of Ukraine “On National Police of Ukraine”:
“Police officers under any circumstances are forbidden to promote, perform, incite or to
treat tolerantly any forms of tortures, cruel, brutal or degrading treatment or
punishment. In case of identification of such actions each police officer shall take
immediately all feasible measures on their suppression and it is obligatory to report on
direct management on the facts of tortures and intentions of their application” [2].
However, the practice of the European Court of Human Rights testifies that Ukrainians
are increasingly applying to the Court, because they were subjected to torture or
inhuman treatment by law enforcement workers, including the National Police of Ukraine.
The Court has already adopted a lot of decisions on Ukraine’s violation of Article 3
“Prohibition of Torture” of the Convention on Human Rights and Fundamental Freedoms
(182 cases for the period from 2007 to 2014) [3].
The study of decisions of the European Court of Human Rights concerning the violation
of prohibition of torture or inhuman treatment or punishment promotes the interaction
of European law with the national law of the states parties to the specified conventions,
enabling them to fulfill duly their international legal obligations. Moreover, in 2006 the
Law of Ukraine “On the Implementation of Decisions and Application of the European
Court of Human Rights Practice” was adopted. According to Article 17, the practice of this
court is a source of Ukrainian law, that is, court decisions should be applied along with
laws and bylaws of Ukraine [4], however, the practice shows that the police officers
actually ignore the requirements of the above-mentioned decisions.
These factors determine the necessity to identify the level and nature of violations of
human rights to freedom from torture or inhuman treatment by the National Police of
Ukraine, to analyze the practice of the European Court of Human Rights in relation to
violation of Ukraine Article хъ of the Convention for the Protection of Human Rights and
Fundamental Freedoms for the purpose of scientific generalization and development of
requirements and standards of conduct, clear and understandable for police officers, that
they must strictly adhere to in the course of professional activities, which indicates the
topicality of the subject of this research.
The academic novelty of the results obtained is that the comprehensive analysis gave
the possibility to formulate a scientifically substantiated statement of a theoretical and
applied nature which is fully directed and can be practically used to address the issues
related to the duly observance of human rights to freedom from torture or inhuman
treatment by the bodies of the National Police of Ukraine.
Estimating the observance of human right to freedom from torture in
professional activity of the National Police of Ukraine
The authors of the manuscript highlighted the legislative consolidation of the human right
to freedom from torture or inhuman treatment, and once again proved its absolute
character, the retreat from which is impossible under any circumstances. Police are one
of the state institutions whose activities are aimed at respecting human rights and
freedoms, including the inadmissibility of torture or inhuman treatment. Unfortunately,
the practice of the European Court of Human Rights testifies to systematic violations by
the bodies of the National Police of Ukraine of Article 3 of the Convention on Human
Rights and Fundamental Freedoms. It is stated that the result of such violations of human
JANUS.NET, e-journal of International Relations
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The observance of human right to freedom from torture in professional activity of the national police of
Ukraine (article 3 of the Convention for the protection of human rights and fundamental freedoms)
Andrii Voitsikhovskyi, Oleksandr Bakumov, Olena Ustymenko, Vadym Seliukov
155
rights was the loss of public trust in the police and the national law enforcement system
in general.
It is noted that the national mechanisms assigned to the police include an important role
in respecting and guaranteeing the human right to freedom from torture or inhuman or
degrading treatment or punishment. Summarizing the practice of the European Court of
Human Rights regarding violations of Article 3 of the Convention on the Protection of
Human Rights and Fundamental Freedoms, the authors have developed the requirements
for the Ukrainian authorities and the National Police of Ukraine to advance effective
protection of human rights and, of course, increase public trust and respect to police and
the entire national law enforcement system.
One of the fundamental values of a democratic society, which is enshrined in Article 3 of
the Convention for the Protection of Human Rights and Fundamental Freedoms, is
protection of the physical integrity of a person, including from causing pain, which leads
to severe physical suffering. For one, Article 3 of this Convention provides that “no one
shall be subjected to torture or to inhuman or degrading treatment or punishment” [5].
A number of other international legal instruments also prohibit torture and inhuman
treatment: Article 5 of the Universal Declaration of Human Rights of 1948, Article 7 of
the International Covenant on Civil and Political Rights, of 1966, the United Nations
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, of 1984, the European Convention for the Prevention of Torture and
Inhuman or Degrading Treatment or Punishment of 1987, Minimum Standard Rules for
the Treatment of Prisoners of 1955, Code of Conduct for Law Enforcement Officials of
1979, and many others.
Torture and inhuman treatment are one of the human rights violations that cause the
greatest concern of the global community today. For a long time, torture and inhuman
treatment were the main means of obtaining evidence and were widely applied during
investigations by law enforcement agencies, including the bodies of the National Police
of Ukraine (in the past, the militia). At the same time, the phenomenon of torture and
inhuman treatment in law-enforcement agencies remains scantily explored. This is due
to the long closed nature of this subject existing for many years, a demonstrative non-
recognition by the officials of the character and scale of this phenomenon.
As a rule, torture and inhuman treatment almost do not exist separately from other types
of official misconduct. In most cases, torture and inhuman treatment are the means by
which a policeman attempts to obtain information from a person about the commission
of an offense by him/her or another person in order to achieve the intended result in the
official activities.
The denial of the true scale and the system of torture and inhuman treatment in the
National Police of Ukraine, attention only to specific cases, the search for several guilty
ones and a complaint about insufficient funding - this is how the approach of the Ministry
of Internal Affairs of Ukraine to the solution of this problem looks like. Although the
leadership of the state and the ministry has changed, in many respects the approaches
have remained the same: the reform of those aspects of the impact of the scale of
unlawful police violence is insufficient; statistics on violations committed by employees
of the National Police of Ukraine do not reflect the true state of affairs; the procedure for
receiving complaints about violation and the procedure for their investigation are still
non-transparent and ineffective.
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The observance of human right to freedom from torture in professional activity of the national police of
Ukraine (article 3 of the Convention for the protection of human rights and fundamental freedoms)
Andrii Voitsikhovskyi, Oleksandr Bakumov, Olena Ustymenko, Vadym Seliukov
156
The statistics show that in the structure of crimes against life and health of a person,
torture in Ukraine amounts to: in 2013 -51 crimes; 2014 - 54; 2015 - 73; 2016 - 62;
2017 – 82, 2018 – 163 [6]. Moreover, police officers illegally use physical force and
special means.
Criminal proceedings for deliberate bodily blows, torture or other violent acts by police
officers with respect to suspects or accused are usually limited to an internal official
investigation, and only 3% of the proceedings are brought to court (in most cases, these
proceedings have grave consequences, or so-called public response, causing wide-scale
public indignation).
Such a system of response to violations of human rights to freedom from torture or
inhuman treatment by officers of the National Police of Ukraine can hardly be considered
effective. That is why the level of trust in the figures given to assess the scope of unlawful
violence in police is still poor. In addition, the system still has an impact on the number
of such reports: every victim of torture or inhuman treatment should report it to the
police or the prosecutor’s office (which often delegates the case to the police for
investigation). There is no point applying to the same agency whose officer has violated
human rights. That is why most victims do not report it anywhere, leaving the real scope
of violence hidden from statistics. Thus, the methods of collecting and evaluating
statistics on violations of human rights to freedom from torture or inhuman treatment by
police officers have actually remained the same as before.
In order to study the problems of unlawful violence by the bodies of the National Police
of Ukraine, the Kharkiv Institute for Social Research and the Kharkiv Human Rights
Protection Group conducted a monitoring sociological study, during which the following
estimates were obtained:
Table 1 - Estimated number of victims of unlawful physical violence committed by police during
2004-2017
Year
Number of
victims (%)
Estimated number of
injured
2004
2,73
1,026,616
2004-09
3,50
1,319,500
2010
2,10
791,700
2011
2,6
980,200
2015
1,30
409,080
2017
2,0
641,326
Source: Monitorynh nezakonnoho nasylstva v militsii (2004-2017 rr.) / Kol. avt. Kharkiv,
Kharkivskyi instytut sotsiolohichnykh doslidzhen, 2017. 17 p.
Table 2 - Estimated number of victims of torture committed by police during investigation during
2004-2017
Year
Number of
victims (%)
Estimated number of
injured
2004
0,25
93,498
2004-09
0,3
113,331
2010
0,2
75,400
2011
0,3
113,331
2015
0,2
62,935
2017
0,3
96,195
Source: Monitorynh nezakonnoho nasylstva v militsii (2004-2017 rr.) / Kol. avt. Kharkiv,
Kharkivskyi instytut sotsiolohichnykh doslidzhen, 2017. 19 p.
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The observance of human right to freedom from torture in professional activity of the national police of
Ukraine (article 3 of the Convention for the protection of human rights and fundamental freedoms)
Andrii Voitsikhovskyi, Oleksandr Bakumov, Olena Ustymenko, Vadym Seliukov
157
These results of the monitoring sociological study significantly differ from the official
statistics. These are not final results, but they make it possible to assess the real level of
violation of the human right to freedom from torture or inhuman treatment committed
by the bodies of the National Police of Ukraine.
The attitude of Ukrainians to the danger of becoming a victim of unlawful violence by
police authorities is confirmed by the results of this monitoring study. (in 2009 – 2.5%,
in 2010 – 1.8%, in 2011 – 1.5%, in 2015 – 1.4%, in 2017 – 3.2%). At the same time,
this indicator gradually declined year after year, except for 2017 [7, p.27].
The following factors of violation of the human right to freedom from torture and
inhumane treatment by the bodies of the National Police of Ukraine were put forward by
Ukrainians as primary ones:
- lawlessness of officers who use unlawful methods for work - (43.5%);
- poor staff recruitment, as a result of which people with sadistic inclinations join the
police (34.7%);
- poor professional and cultural level of police officers (30.5%) [7, p.36].
Responsibilities of national law enforcement agencies and in particular the National Police
of Ukraine to prevent violations of prohibition of torture or inhuman treatment are the
result of a long process of establishing norms of international and national legislation, as
well as a no less long-term and debatable process of their coherence.
Among all existing international legal tools, the Convention for the Protection of Human
Rights and Fundamental Freedoms of 1950 is the most respected by the states parties in
practice. This is in particular due to the fact that this Convention is legally binding on the
states that have acceded to it, and the decisions of the supervisory agencies of the
Convention are binding on the signatory states parties. In addition, the monitoring of the
proper enforcement of human rights is carried out by the European Court of Human
Rights, whose activities are regulated by the Convention, the Rules of the Court and
application processing.
By ratifying the Convention for the Protection of Human Rights and Fundamental
Freedoms, Ukraine has thus recognized the mandatory jurisdiction of the European Court
of Human Rights.
In accordance with Part 1 of Article 32 of the Convention for the Protection of Human
Rights and Fundamental Freedoms, the interpretation of its norms is the exclusive
competence of the European Court of Human Rights. Therefore, from this perspective,
the case law of the Court constitutes the official international interpretation of the
Convention for the Protection of Human Rights and Fundamental Freedoms [5].
While exercising its powers to protect human rights guaranteed by the Convention, in
particular the right to freedom from torture or inhuman or degrading treatment or
punishment, the European Court of Human Rights takes steps aimed at approximating
the laws of the States Parties and adopts decisions that directly affect their legal systems.
The main purpose of the Court is to interpret and express its position on the practice of
the application of the rights and freedoms proclaimed in the Convention. It is envisaged
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The observance of human right to freedom from torture in professional activity of the national police of
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158
that the state, amending its legal system as a part of implementation of the decision of
the European Court of Human Rights regarding a complaint of one of its citizens,
automatically prevents a similar violation of the rights of other citizens.
At the same time, the States not subject to the European Court of Human Rights decision
but having legislative and law enforcement practices similar to those found by the Court
as unlawful in relation to other parties to the Convention, may not wait for the decision
of the European Court of Human Rights to make timely changes to their national
legislation. Such a position of the European Court of Human Rights is particularly relevant
in terms of the restoration and observance of fundamental human rights, including the
right to freedom from torture or inhuman or degrading treatment or punishment, since
the Court establishes certain standards for internal domestic application of Article 3 of
the Convention and its interpretation.
Unconditional nature of the guarantee of the protection of rights contained in Article 3
also means that under no circumstances, in accordance with the Convention or another
provision of international law, actions that violate this article cannot be justified. In other
words, there are no factors that could be considered as justification for prohibited acts
within the internal legal systems (armed conflicts, state of emergency, victim’s behavior,
different external circumstances, etc.) [8, p.380-381].
The answer to the question of what exactly is a “torture, inhuman or degrading treatment
or punishment” depends on the circumstances of the particular case.
By dividing the terms “torture” and “inhuman treatment”, the European Court of Human
Rights applied the principle of determining the gravity of suffering, but under the
influence of the United Nations Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment of 1984, it transformed the position, adding to the
main differences the purpose and intentional nature of such actions. Inhuman treatment
is deemed both active actions and omission to act of the authorities or their employees,
which caused only the moral suffering of the applicant.
There is another difference between the concepts of “torture”, “inhuman treatment” and
“degrading treatment”, apart from the purpose, intention, gravity of suffering, which is
an impairment of dignity of a particular person. It has been investigated that torture and
inhuman treatment are attacks on human dignity in its absolute meaning, whereas
degrading treatment is aimed at denigration the dignity of a particular individual. The
European Court of Human Rights has also included the conditions for the detention of
prisoners to the qualification of degrading treatment, emphasizing the universal character
of the provisions of Article 3 of the Convention for the Protection of Human Rights and
Fundamental Freedoms, according to which detained or imprisoned persons have all the
rights inherent in the dignity of each person.
Considering the issue of violation of Article 3 of the Convention for the Protection of
Human Rights and Fundamental Freedoms, the European Court of Human Rights is based
on the doctrine of the minimum level of severity. The essence of this doctrine in a nutshell
is that to fall within the scope of Article 3, ill-treatment must be at the minimum level of
severity.
The practice of the European Court of Human Rights singles out three basic concepts,
which are contained in the contents of Article 3 of the Convention for the Protection of
Basic Human Rights and Freedoms regarding the degree of severity of a treatment:
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Andrii Voitsikhovskyi, Oleksandr Bakumov, Olena Ustymenko, Vadym Seliukov
159
- torture is an inhuman treatment aimed at obtaining any information or confession
for further punishment;
- inhuman treatment or punishment is a behavior that deliberately causes serious
moral or physical suffering and should not be justified in the given situation;
- degrading treatment or punishment is a behavior that savagely humiliates an
individual before others and forces him/her to give up their will or conscience.
In assessing the level of severity, according to the European Court of Human Rights, such
facts as sex, age, and health condition of the victim gain particular importance. The
doctrine of the minimum level of severity itself is used to separate torture from inhuman
or degrading treatment and punishment [9].
Summarizing the practice of the European Court of Human Rights in relation to cases of
violation of the human right to freedom from torture or inhuman or degrading treatment
or punishment, at least 5 following requirements regarding the treatment of detained
and arrested persons shall be put forward to the bodies of the National Police of Ukraine:
1. Duty to report any injury that happened during a stay under the jurisdiction of police
authorities.
2. Duty to provide explanations for each injury that happened during a stay under the
jurisdiction of police authorities.
3. Duty to provide explanations regarding the treatment with a person during his/her
stay under the jurisdiction of police authorities.
4. Duty to provide explanations on the causes of death and the medical treatment
provided to that person until his/her death if the person died during the detention.
5. Duty to provide a satisfactory and plausible explanation of the causes of death if a
person died while being under the jurisdiction of police authorities [10].
Analysis of judgments of the European Court of Human Rights
concerning violations of Article 3 of the Convention for the Protection of
Human Rights and Fundamental Freedoms
As a part of this study, it is important to clarify the additional requirements contained in
the decisions of the European Court of Human Rights concerning Ukraine regarding
violations of Article 3 of the Convention binding on the bodies of the National Police of
Ukraine. In the following, we shall examine this part of the practice of the European Court
of Human Rights.
The case “Kaverzin v. Ukraine” (2013). On January 12, 2001, Kaverzin O. was detained
in Kharkiv by militia officers on suspicion of committing several murders and robbery.
After the detention, the applicant was taken to the militia station, where he was allegedly
tortured by unknown militia officers in order to obtain testimony to commit crimes.
According to the applicant, during such ill-treatment, which continued for several days
thereafter, he received an eye injury which eventually resulted in him suffering a
complete loss of eyesight. The applicant complained that the state authorities did not
provide him with adequate medical treatment, resulting in a disability.
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The observance of human right to freedom from torture in professional activity of the national police of
Ukraine (article 3 of the Convention for the protection of human rights and fundamental freedoms)
Andrii Voitsikhovskyi, Oleksandr Bakumov, Olena Ustymenko, Vadym Seliukov
160
The applicant complained that there was no effective investigation of the beatings and
torture of militia officers. In addition, in the Dnipropetrovsk colony, in spite of his
blindness, every time he was taken out of the cell and during short visits with family
members he was handcuffed.
The European Court of Human Rights, after considering this case, noted that there is a
violation of Article 3 of the Convention. The court reiterates that Article 3 of the
Convention requires the careful investigation of reasonable claims of ill-treatment. This
means that the authorities should always try in good faith to find out what happened and
not to rely on hasty and unreasonable conclusions to close the criminal case. The Court
also considers that the non-provision of necessary medical care to persons in places of
detention, which is the responsibility of the State, is a violation of Article 3 of the
Convention. The Court finds that the applicant’s use of handcuffs in the Dnipropetrovsk
colony was inhuman and degrading treatment and that there was a violation of Article 3
of the Convention [3].
The case “Kulik v. Ukraine” (2015). On May 4, 2003, Kulik V. was arrested on suspicion
of stealing cucumbers from a greenhouse on a vegetable farm, as well as for the
commission of an administrative offense (deliberate disobedience and resistance to
militia officers).
According to the applicant, on the same day, militiamen beat him at the
Chervonozavodskyi District Militia Station in Kharkiv, forcing him to confess to the theft.
Subsequently, the applicant granted confessionary evidence.
On May 5, 2003 the applicant turned to the hospital for medical assistance. The doctor
recorded the numerous injuries on the body of the applicant and diagnosed brain
concussion and a possible fractured nose. The applicant was admitted to the hospital for
a course of in-patient treatment in connection with the injuries sustained.
On July 8, 2003, the applicant was inspected by a psychiatrist who had diagnosed him
with a psychiatric disorder.
The applicant complained under Article 3 of the Convention that he had been subjected
to ill-treatment by militia officers and that there was no effective investigation of the
incident.
The European Court of Human Rights, after considering this case, came to the conclusion
that the applicant’s bodily injury was serious enough and his complaint of ill-treatment
was reasonable in terms of Article 3 of the Convention, and therefore demanded an
effective investigation to be conducted by the national authorities.
The Court considers that the medical evidence available in the case is sufficient to
conclude that on May 4, 2003, on the date when the applicant was detained and he was
in the militia station, he suffered a brain concussion and numerous bodily injuries. Medical
evidence also suggests that from that date, he had a psychological disorder. Under these
circumstances, the Court ruled that the state should be held accountable for the ill-
treatment that should be qualified as inhuman and degrading treatment. Therefore, there
was a violation of Article 3 of the Convention and the state should be held accountable
for it [3].
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The case “Serikov v. Ukraine” (2015). On May 16, 2008 Serikov S. was detained by
militia officers and sent to the Kharkiv City Department of the Main Administration of
Ministry of Internal Affairs of Ukraine in the Kharkiv region.
During the search of the applicant’s personal belongings, the militia found a packet with
the substance that, as it was later established, turned out to be cannabis.
According to the applicant he was ill-treated by the militia to make him confess at the
militia station. In particular, he argued that he was threatened with rape, beaten with
legs and arms on the head and body, and also threatened with weapons. The officers
used the “Palestinian hanging”; with his hands handcuffed behind his back, he was hung
at a height of one or one and a half meters, and then thrown on the floor face down. He
lost consciousness a few times.
On May 17, 2008, the applicant turned to the medical institution, where he was diagnosed
with a brain concussion, a soft tissue bruise of the head and chest. The applicant
complained that he had been subjected to ill-treatment by militia officers and that the
national authorities had not conducted an effective investigation of his allegations of ill-
treatment. He referred to Articles 3 and 13 of the Convention.
Based on all available material, the European Court of Human Rights considers it
established that all bodily injuries were caused to the applicant after his encounter with
militia officers on May 16, 2008, and until he left the militia station on that day. For these
reasons, the Court finds that the applicant has been subjected to ill-treatment, the state
should be held accountable for, and which should be classified as inhuman and degrading.
Under these circumstances, the Court concludes that the national authorities did not
ensure that the applicant’s allegations of ill-treatment were effectively investigated.
Therefore, there was a violation of the substantial aspect of Article 3 of the Convention
[3].
The case “Pomiliaiko v. Ukraine” (2017). In early November 2008, equipment was
abducted from the company where Pomiliaiko S. worked. In connection with the theft,
she was summoned to the Ordzhonikidzevskiy District Militia Station in Kharkiv, together
with her employee.
Having arrived at the district station, the applicant was pushed into the office, handcuffed
with her hands behind her back, even though she did not demonstrate resistance.
The militia officers who were present were intimidating the applicant in order to force her
to confess to theft. Having failed to obtain her confession, the militia officers forced her
to sit on a chair, put on a polyethylene package on her head and began to choke her. At
the same time, they beat her on the head, face, and lips, so that she did not bite through
the package. The applicant has lost consciousness several times. When she told the
militia officers that she needed to visit the toilet room, one of the police officers hit her
in the stomach and head. She lost consciousness again and involuntarily urinated. She
repeatedly refused and declared her innocence. The applicant was compelled to write a
statement that she had no complaints about the treatment of the militia officers with her.
However, from 9 to 27 November 2008, she was in inpatient treatment in connection
with a closed craniocerebral injury, brain concussion, soft tissue bruise of the head, injury
of upper and lower limbs, injury of anterior abdominal wall, lumbar osteochondrosis and
asthenic syndrome.
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The applicant complained that she had been subjected to torture by militia officers and
that there had been no effective investigation of her complaints at the state level.
Although the applicant referred to the Articles 3 and 13 of the Convention, the Court
considers it appropriate to study this complaint only under Article 3 of the Convention.
Taking into account all the considerations on this issue, the European Court of Human
Rights considers it sufficiently established that the applicant had been subjected to ill-
treatment she complained about, which is a violation of Article 3 of the Convention [3].
Thus, based on the above-mentioned decisions of the European Court of Human Rights,
the Ukrainian authorities and the bodies of the National Police of Ukraine are obliged to
take the following actions:
1. A special medical examination should be conducted upon the complaint about ill-
treatment of the injured and his/her lawyer.
2. Police agencies are obliged to avoid any cases where the arrest of a person can be
interpreted as an excuse to overcome his/her internal resistance and receive
confessions.
3. Using force against detained and arrested persons, the police officers must strictly
adhere to the principles of necessity and proportionality.
4. Inability to establish civil officers guilty of unlawful violence against a detained person
cannot relieve the state from responsibility. Therefore, in case of a reasonable claim
by a person about ill-treatment by law enforcement officers, the state should conduct
an investigation, which should be: official, effective, independent, open to public
control and should provide the opportunity to identify the perpetrators.
The last item deserves special attention not only because it is mentioned in many cases
against Ukraine, but also because public access to the results of official investigations of
ill-treatment is a rather problematic one.
Today, the practice of the bodies of the National Police of Ukraine provides the victim
itself, who suffered from the unlawful actions of the police officer, with very brief
information in case of confirmation of such a fact.
It is clear that such an established ill practice mitigates the attempts of non-governmental
organizations to analyze the progress of official check of the facts of torture and
inhumane treatment, and therefore directly contradicts the requirements of the European
Court of Human Rights regarding the availability of such procedures for public control.
That is why the civil society for its own part considers it necessary to set an objective for
the administration of the Ministry of Internal Affairs and the General Prosecutor’s Office
of Ukraine to develop procedures for access of civil society institutions to the materials
of investigations.
Final considerations
“The prohibition of torture is absolute, i.e. not subject to any limitation, derogation or
relativisation” [11]. Summing up the material presented, we can conclude that the
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The observance of human right to freedom from torture in professional activity of the national police of
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problem of observance of the human right to freedom from torture and inhuman
treatment in the activities of the bodies of the National Police of Ukraine remains
important. This fact is confirmed by the numerous decisions of the European Court of
Human Rights concerning Ukraine on violation of Article 3 of the Convention for the
Protection of Human Rights and Fundamental Freedoms, according to which Ukraine was
found as a state violating human rights to freedom from torture or inhuman or degrading
treatment or punishment.
Having analyzed certain cases of the European Court of Human Rights, the main
obligations of the states under Art. 3 of the Convention for the Protection of Human
Rights and Fundamental Freedoms may be defined. From the general obligation of the
state to ensure conventional rights for each person under its jurisdiction other obligations
derive connected with the enforcement and observance of only a certain right. These
obligations can be negative and positive. Negative obligation of the states enshrined in
Article 3 of the Convention has a conventional nature and consists in refraining from any
actions which could lead to a breach of this provision. The positive obligations of states
assume the use of reasonable and adequate measures to protect the rights that a person
has under the Convention.
The prohibition of torture or inhuman treatment, as an international obligation of the
state, correspondingly determines the responsibility of law enforcement agencies,
including the National Police of Ukraine to prevent torture or inhuman treatment and to
effectively investigate each such manifestation.
To reduce the level of torture and inhumane treatment by the National Police officers, it
is advisable to take the following steps:
- it is necessary to develop a new system for evaluating the effectiveness of the
activities of the bodies of the National Police of Ukraine at the legislative level, which
completely abolishes the so-called “ticket quota” system of police work evaluation (it
is necessary to abolish the establishment of plans for the disclosure of crimes for a
certain period of time);
- in case of a person’s detention, police officers should secure the right to access to a
lawyer, the right to be examined by a doctor and the right to notify a relative or
other third party of such detention;
- the legislative level should enshrine the duty of the bodies of the National Police of
Ukraine to record (audio and video) all actions taking place with the participation of
persons irrespective of the status (detained, delivered or visitor) who arrived to the
police, with the archiving and storage of video materials;
- the administration of the Ministry of Internal Affairs and the National Police of Ukraine
should ensure the development of plans for the training of employees, including
teaching materials on the complete prohibition of torture or inhuman or degrading
treatment or punishment, with the study of the content of specific cases of the
European Court of Human Rights on the violation of Ukraine and other states of
Article 3 of the Convention for the Protection of Human Rights and Fundamental
Freedoms, by generalizing clear and understandable for police officers requirements
and standards of conduct which they must strictly adhere to in their professional
activities;
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- to ensure public access to the progress and results of investigations of violations of
human rights to freedom from torture and inhumane treatment by the National Police
of Ukraine.
The implementation of these recommendations by the administration of the Ministry of
Internal Affairs and the National Police of Ukraine will contribute to ensuring the human
right to freedom from torture or inhuman or degrading treatment or punishment in the
course of police professional activity and will contribute to increasing the public trust and
respect for the police and the law enforcement system in general.
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Ukraine (article 3 of the Convention for the protection of human rights and fundamental freedoms)
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