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Universidade Autónoma de Lisboa

e-ISSN: 1647-7251

Vol. 13, Nº. 1 (May-October 2022)

https://doi.org/10.26619/1647-7251.13.1

ARTICLES

The security dilemma in Russia’s new national security strategy: between militarism and being a

geographical pivot - Sandra Fernandes e Marco Cruz – pp 1-18

Protection of democratic processes and electoral acts from Russian digital active measures: 2016

as a reference year – Ricardo Silvestre – pp 19-35

The resilience of the Communist Party of China – Luís Cunha – pp 36-50

Liberté, egalité et laïcité: the use of hijab in public schools as a threat to the french republican

ontology (1989-2004) - Bruno Pedrosa – pp 51-62

Paradiplomacy as the product of state transformation in the era of globalisation: the case of

Indonesia - Ario Bimo Utomo – pp 63-78

Accepting ultraperiphery: the role of the Conference of Peripheral Maritime Regions (CPMR) in the

territorial mobilization strategy of the Government of the Azores with the European Union – André

Pimentel Garcia e Sandrina Ferreira Antunes – pp 79-97

Portuguese Science Diplomacy and the Networks of Portuguese Professionals, Researchers and

Graduate Students abroad: from The Escape to The Circulation of Brains - João Mourato Pinto – pp

98-116

The desecuritization of drug trafficking in Mexico under the AMLO administration - Luis Miguel

Morales Gámez – pp 117-134

Rights of Nature as a potential framework for the transformation of modern political communities

- Carlota Houart – pp 135-151

Common but differentiated responsibilities regarding climate change. Different interpretations

within the Brazilian national context - Christopher Kurt Kiessling e Agustina Pacheco Alonso – pp

152-170

Pharmaceutical patents and the right to health – Portugal and Brazil - Ruben Bahamonde Delgado

– pp 171-189

Balancing the Privacy v. Surveillance argument: a perspective from the United Kingdom - Vaibhav

Chadha – pp 190-203

The relationship between cash dividend and earnings growth of listed companies in tehran stock

exchange - Massoud Kheirandish e Mohsen Mohammadi Khyareh – pp 204-218

NOTES

Preservation of European Cultural Heritage: experience and modern trends - Alexandra Borisovna

Egoreichenko – pp 219-229

International anarchy revisited: the ontological challenges of a post-social conception - Carolina

Encarnação Correia – pp 230-239

Online dispute resolution - fantasy or reality? - Otabek Pirmatov – pp 240-245

CRITICAL REVIEWS

Akyüz, Emrah (2021). Nuclear Power and Human Rights in Japan: The Fallout of Fukushima.

London: Lexington Books. ISBN: 9781793637819, 270 pp – by Emrah Atar – pp 246-249

Innerarity, Daniel (2019). Política para Perplexos. Lisboa: Porto Editora, ISBN 978-972-0-45-

03232-4, 214 pp – by João Carlos de Sousa – pp 250-254

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Universidade Autónoma de Lisboa

e-ISSN: 1647-7251

Vol. 13, Nº. 1 (May-October 2022)

THE SECURITY DILEMMA IN RUSSIA’S NEW NATIONAL SECURITY STRATEGY:

BETWEEN MILITARISM AND BEING A GEOGRAPHICAL PIVOT

SANDRA FERNANDES

sfernandes@eeg.uminho.pt

Assistant Professor, Department of Political Science of University of Minho (Portugal) and Director

of the Master Degree in International Relations. Ph.D. in Political Science and International

Relations from Sciences Po. Awarded the Jacques Delors Prize 2005 for research on the European

Union and Russia. Collaboration with the Portuguese Embassy in Russia. She was nominated by

the Minister of Foreign Affairs to be part of the jury for access to the diplomatic career;

responsible for the creation and coordination of the Diplomatic Career Access Course,

UminhoExec and member of the Board of the Portuguese Political Science Association (APCP).

She was Guest Lecturer within the scope of postgraduate courses in foreign universities. She was

Guest Researcher at the Centre for European Policy Studies

MARCO CRUZ

cruz.maf@ium.pt

Lieutenant Colonel of the National Republican Guard (Portugal), Professor in Armed Crises and

Conflicts at the Military University Institute, teaching Geopolitics, International Relations and

Security Studies. He participated in GNR missions in Iraq, East Timor and Bosnia and

Herzegovina (European Union-EUFOR). He is the Coordinator of the Nucleus of European Military

Studies at the Research and Development Centre of the IUM, and an expert in internal security

and criminal phenomena. Master’s degree in law and Security and Bachelor and master’s degree

in military sciences. Postgraduate diploma in Political Science and International Relations and is a

Ph.D. student in International Relations in the specialty of political studies. He is a researcher at

the Research and Development Centre of IUM, and author and co-author of several publications

in the areas of Geopolitics and Security Studies.

Abstract

The article analyses the new Russian Security Strategy as a formulation of Russia's “security

dilemma”, both in terms of interpretation and response (Booth and Wheeler 2007). Very

focused on the transformation of the world order, resulting from changes in the International

System, within which the powers seek to strengthen their positions in the global structure,

the strategy increasingly foresees the use of the military instrument as a way of guaranteeing

and imposing national interests, which are reflected in different domains and regional areas.

Exploring the strategic relations with China, in economic and political terms, Russia also seeks

to strengthen its status as a global power, through the expansion of geographic space and

areas of intervention. In its interpretation of the so-called “modern world”, very marked by

the rivalry between the US and China, it seeks to assume itself as the geographical pivot of

that same relationship. The National Security Strategy therefore is a roadmap for Russia's

ambitions, assessing the motives, intentions and capabilities of the "others" and identifying

the "rational" and "legitimate" ways of responding to its "security dilemma". Whereas it is

possible to confirm that the invasion of Ukraine on 24 February 2022 materialized the

elements present in the strategy, the effects do not seem to coincide with the objectives

sought by Moscow.

Keywords

Russia; Security Strategy; security dilemma; geographical pivot; militarism

How to cite this article

Fernandes, Sandra; Cruz, Marco (2022). The security dilemma in Russia’s new national

security strategy: between militarism and being a geographical pivot. In Janus.net, e-journal

of international relations. Vol13, Nº. 1, May-October 2022. Consulted [online] on the date of

the last visit, https://doi.org/10.26619/1647-7251.13.1.1

Article received on January 11, 2022 and accepted for publication on April 1, 2022

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

Vol. 13, Nº. 1 (May-October 2022), pp. 1-18

The security dilemma in Russia’s new national security strategy:

between militarism and being a geographical pivot

Sandra Fernandes, Marco Cruz

THE SECURITY DILEMMA IN RUSSIA’S NEW NATIONAL SECURITY

STRATEGY: BETWEEN MILITARISM AND BEING

A GEOGRAPHICAL PIVOT

SANDRA FERNANDES

MARCO CRUZ

Introduction

In the 21st century, in contrast to the 1990s, Russia embarked on a path of international

(re)ascension, under the leadership of Vladimir Putin. The Russian-Georgian war of 2008

and the annexation of Crimea in 2014 marked a turning point in Moscow's modus

operandi in asserting its interests. These include not only areas of direct strategic interest

in its “near abroad”

, but also in more distant regions, such as the African continent and

South and Central America (Gurganus, 2018).

Since the implosion of the Soviet Union in 1991, Russia's foreign and security policy has

evolved according to its relationship with the West and with the main Western powers.

During the Cold War, this relationship was one of strategic rivalry, through the search

and dispute of influence space, both in political and military terms (Gaddis, 2007).

Moscow's intention to bring it closer to Western states and organizations even included

the possibility of its integration into the Atlantic Alliance itself (Thorun, 2009). Initial

support for the war on terror after the 9/11 attacks also illustrates this approach (Cardier,

2015: 160). After the phase of relative convergence, President Putin’s leadership broke

with this cooperative course, resurrecting the perception that it is necessary to reverse

the position of weakness of the Russian nation, “having lost Eastern Europe, the USSR

lost its most important defence zone and suffered a huge geopolitical blow” (Dugin, 2016:

70).

Article translated by Carolina Peralta.

The term “near abroad” appeared for the first time in 1992, being considered a geopolitical “label” among

Russian politicians in the context of the dissolution of the Soviet Union. It refers to the near abroad, that

is, to the former Soviet republics, which have since become independent sovereign countries. The term

recognizes the new independent status, but despite this, it keeps countries under Russian influence, given

that these countries continue to belong to the former Soviet family (Toal, 2017: 3).

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

Vol. 13, Nº. 1 (May-October 2022), pp. 1-18

The security dilemma in Russia’s new national security strategy:

between militarism and being a geographical pivot

Sandra Fernandes, Marco Cruz

Putin made this perception explicit in key speeches in 2005 and 2007, identifying the

implosion of the Soviet Union as the greatest geopolitical catastrophe of the century, the

aggressiveness of the enlargement policies of NATO (North Atlantic Treaty Organization)

and the European Union (EU) to post-Soviet states, and the criticism of the hegemony of

the United States (US) in an international order that is multilateral (Putin, 2005; 2007).

The role of Russian leadership has been crucial for relations with Western powers, with

two distinct type-views: one that places Russia as a European power, that is, closer to

Western normative frameworks; and another that defends Russia’s centrality in Central

Asia, occupying the “heart” of the Heartland (Mackinder 1943: 595-605) and, in this way,

seeking Russian autonomy in relation to Western actors, including strengthening

partnerships with Asian countries (Krickovic & Pellicciari, 2021: 89-90).

The change in Russia’s path was based on economic prosperity and materialized mainly

in the Russian-Georgian war of 2008, and in the so-called colour revolutions that led to

the overthrow of rulers in Georgia and Ukraine, closer to the Kremlin (Nygren, 2008: 30;

Sakwa, 2015: 65). The previous leaderships of the Ukrainian and Georgian governments

were replaced by politicians whose ambition was to approach and eventually be part of

Euro-Atlantic institutions, aiming to benefit from the economic support and development

of the EU and the security “umbrella” of NATO. This geopolitical framework has changed

relations between Russia, the EU and NATO (Casier, 2016: 18-19; Mendras, 2015: 85).

From Moscow's point of view, as during the Cold War period, Western countries sought

to subjugate Russia, removing vital spaces of influence from it, not only encircling it

(Crowley, 2018), but removing the buffer zone between Russia and the West (Haas,

2010: 3).

This article aims to analyse the new Russia’s National Security Strategy (RNSS) of July

2021 (RF, 2021). This document is the main strategic document of the State, to which

the military doctrine and the concept of its foreign policy are subordinated. As a result of

the changes it announces within the international system, the new strategy contrasts

with the previous version published in 2015 (RF, 2015) and identifies the main trends

and opportunities for Russia in the “modern world”. Based on the concept of “security

dilemma sensitivity” formulated by Booth and Wheeler (2007)

, we argue that the

document under analysis informs about the role of fear in Russian attitudes and

behaviours. Thus, our main objective is to identify how Moscow responded to its

“interpretation dilemma” by defining what the motives, intentions and capacities of

others are.

Although in rhetorical terms, the new RNSS also indicates how Russia solved its “response

dilemma” by listing the rational ways to respond to its security dilemma. The “special

operation” that the Kremlin launched on Ukraine on 24 February 2022, condemned as a

war of aggression by the West, embodies the Russian response to its interpretation of

the security dilemma.

The authors define the concept as follows: “an actor's intention and capacity to perceive the motives behind,

and to show responsiveness towards, the potential complexity of the military intentions of others. In

particular, it refers to the ability to understand the role that fear might play in their attitudes and behaviour,

including, crucially, the role that one's own actions may play in provoking that fear” (Booth and Wheeler:

7).

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

Vol. 13, Nº. 1 (May-October 2022), pp. 1-18

The security dilemma in Russia’s new national security strategy:

between militarism and being a geographical pivot

Sandra Fernandes, Marco Cruz

Based on the recent changes that the Kremlin has made in its external relations, the

article thus identifies the extent to which these dimensions are translated into the new

RNSS. Although the document unequivocally expresses the deterioration of relations

between Russia and the “Western countries”, our analysis seeks to understand to what

extent and in what way the changes established in the RNSS include elements of Russian

geopolitical thought (Fernandes and Ageeva, 2021) and ruptures confirmed by the

current war in Ukraine. These elements include a move away from European cooperation

options; a challenge to Western leadership in the global order in the sense that there are

multiple centres of power (multipolarity); the search for partnerships in Asia and a new

Russian foreign policy identity on a Eurasian scale.

Using qualitative methodology based on the content analysis of the RNSS, we analysed,

firstly, how the “West” is approached in that same document, in terms of actors and

issues, in order to highlight the dynamics of cooperation and of conflict that Moscow

reveals. Secondly, to question Russia's ambition to be a Eurasian actor, we identified

elements of global ambition compared to elements of a regional predisposition. Finally,

still in order to assess the articulation of Russian Eurasianism in the RNSS, we assessed

Moscow’s objective of being a “geographical pivot” in a world that Russia perceives as

not being centred in the West but composed of several centres of power.

1. The West as “Other”: Defending Russian Interests and Culture

The RNSS identifies the US and its main western allies as the main threat to Russia's

interests, underlining NATO's (and EU's) enlargement policies as the main element of

interference in its “near abroad”. It is also in the West that the main threats “to internal

political unity and stability” and to its values and principles originate (RF, 2021: 4). In

addition to the emphasis given to climate issues, the economy and technology, the new

strategy seeks to challenge the hegemonic order dominated by Western countries,

demanding a more relevant role for Russia, which is in line with its international weight

in military, geographical, technological and legal terms, namely its status as a permanent

member of the United Nations Security Council (UNSC).

As far as NATO is concerned, the organization and its allies remain a military threat to

the Russian Federation and its main partners, in particular those that are part of the

Commonwealth of Independent States (CIS). In this context, the construction of nearby

military bases are highlighted as threats to Russian sovereignty, referring to the military

exercises and the installation of nuclear weapons “against the Russian Federation” carried

out (RF, 2021: 12).

In addition to pointing to the West, albeit indirectly, as being behind the computer attacks

that Russia has been experiencing, in the view of the new strategy, some actors threaten

Russian values - spiritual, moral, historical and cultural. The States are joined by

transnational companies, non-governmental actors, religious entities and extremist and

terrorist organizations. As in other moments in its history, the so-called westernization

of Russian culture is seen as a threat to its sovereignty, as it seeks to “falsify Russia and

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e-ISSN: 1647-7251

Vol. 13, Nº. 1 (May-October 2022), pp. 1-18

The security dilemma in Russia’s new national security strategy:

between militarism and being a geographical pivot

Sandra Fernandes, Marco Cruz

its world history, distort historical truth and memory”

, thus inciting interethnic and

interreligious group conflicts that weaken the State itself.

In order to “protect” Russian values and spirit from external interference, fourteen

actions are identified, with emphasis on the information and research domain, where the

promotion of state information programmes and research centres that carry out the

scientific dissemination of documents related to Russia and its history, in the “educational

space” (physical and virtual) is defended (RF, 2021: 36-38). In religious and cultural

terms, the fostering of projects in partnership with different entities, in particular with

the (Orthodox) church, inside and outside Russian territory, is advocated. The most

relevant aspect of the activities, however, comes from point 7, which emphasizes the

“reinforcement of the cultural sovereignty of the Russian Federation and the preservation

of the unity of its cultural space (RF, 2021: 36).

This “defence” of Russian culture makes it possible to expand the space of Russian

intervention far beyond its physical borders. Russian-speaking communities and Russian

entities that carry out activities abroad are one of the bases of power. In addition to the

countries of its “near abroad”, the Western Balkans stand out, in particular Serbia and

Bosnia and Herzegovina, countries where the Kremlin maintains a strong political

influence, as a result of its historical and cultural proximity (Cruz, 2021). At the beginning

of 2022, Serbia, through its President, announced the acquisition of military weapons

from Russia, antitank weapons, tanks and drones (Stojanovic, 2022). Serbia has been

one of the main centres of Russian investment, in economic, information, military and

political terms (Blank, 2021). On the Bosnian side, the political support given by Moscow

for the secession of the Serbian Republic (Republika Srpska), declared several years ago

by the President of this region, Milorad Dodik, is intended, first of all, to keep Bosnia

away from approximation and integration in NATO (Gotev, 2019) and in the EU.

Furthermore, with the proximity it seeks to have with Bosnian political leaders, in

particular the Serbian and Croatian side of the tripartite presidency (which also includes

a Bosnian-Muslim representative), Russia intends to maintain its influence (Jagiello,

2021), exploring the ethnic divisions to create instability (Mujanovic, 2017), in a region

considered of great geostrategic importance for the EU (RFE, 2021; Kamath, 2021).

With this new strategy, relations with the West in general, and with the US in particular,

are not articulated with cooperative projects, mainly due to Western threats in areas of

Russian interest. The fight against the risks associated with the westernization of the

country in political, economic and cultural terms, is assumed as one of the fundamental

pillars for the Russian identity. In addition to allowing the prioritization of exclusive

national dimensions, the maintenance of the western reference as the “other”

(Zevelev,

2016: 8) - a matrix considered essential from the theoretical perspective of the

construction of identities (Wendt, 1994: 385) (Shelling, 1960: 19) also promotes internal

Over the years, the theme related to historical issues has been crucial for the different Russian rulers, so it

is not an issue in the current Russian leadership. Just recently, Vladimir Putin accused Western historians

of wanting to downplay Russia's role in World War II, saying that the Soviets were primarily responsible for

the Nazi defeat. Radchen (2020) claims that the Russian president wants to rewrite history.

The relationship between the “I” and the “other” evidences the idea that identities can be based on

difference, thus being created through a relational context (Delanty, 2005). In foreign policy, the distinction

between the in and the out group forms the basis for the formulation of political identities, defining who the

"we" are, in contrast to the external groups, that is, the "other", which can be implied or explicitly excluded

from the national community (Bruter, 2003: 1150).

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The security dilemma in Russia’s new national security strategy:

between militarism and being a geographical pivot

Sandra Fernandes, Marco Cruz

cohesion and legitimizes the political governance in place. On this particular point, the

RNSS maintains the guideline of the 2015 strategy (RF, 2015), deepening the

divergences with the West.

In military terms, relations with NATO are a central priority and concern for Russia,

resulting not only from the installation of anti-missile systems and nuclear weapons close

to its borders, but also from the successive policies of enlargement of the Alliance to the

East. In response to the recent tensions created in the Donbass region (Ukraine), Putin

unilaterally proposes a “new security agreement” with the US and NATO, which

guarantees the non-inclusion of Ukraine in NATO in the future (Ministry of Foreign Affairs

of the Russian Federation, 2021).

The RNSS identifies a wide range of threats to Russia's national security, both internally

and externally. The document’s definition of what it considers to be a “threat to national

security” is very comprehensive, encompassing “the set of conditions and factors that

directly and indirectly create an opportunity to limit the interests of the Russian

Federation” (RF, 2021). The scope of the notion of National Security, in addition to

establishing the link between the internal and external domains, that is, the indivisibility

between the two domains, identifies the relationship between the different types of

threats. With regard to terrorism and security issues in general, including threats

originating from disinformation and propaganda campaigns, there is a concern on the

part of the Kremlin to protect its power internally, giving legitimacy to measures and

restrictions imposed by the political power. The narrative used in relation to the West

and the threat that Western values entail, and which are placed alongside others such as

terrorism and extremism, materialize this same intention of legitimation.

The most relevant aspect in terms of threats concerns the way in which threats

originating in the West are understood, in physical terms, but especially in virtual terms.

The RNSS finds a central pillar of threats in cybernetics, thus reinforcing the subjective

nature of its assessment. The enlargement of Russian borders, in the identified space of

cultural sovereignty (RF, 2021: 36), in order to include States considered strategic from

its near abroad, aims to obtain legitimation in domestic and international terms in the

issues of protection of Russian-speaking communities, which are, according to Moscow,

“discriminated and judicially accused” (RF, 2021: 6). In the annexation of Crimea, in

addition to historical issues, the argument used by Putin to intervene was to guarantee

the security of the Russians, who represent the majority population in that territory

(Putin, 2014).

2. A global ambition, with a strong regional focus

Similar to the strategies of the great powers, the RNSS gives Russia a global position,

using all the instruments at its disposal: political, military, technical-military, diplomatic,

economic, and informational. In this section, we identify Russia's active intervention in

regional terms and the reinforcement of its role in global terms, reinforcing the aspects

that effectively give it this position capacity. The strengthening of Russian civilization, in

contrast to the West, and the country's global ambition mitigate Russian weaknesses in

different areas, particularly in economic terms, occupying the 11th position in world

terms, with the Russian economy representing only 1.95% of the global economy (World

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

Vol. 13, Nº. 1 (May-October 2022), pp. 1-18

The security dilemma in Russia’s new national security strategy:

between militarism and being a geographical pivot

Sandra Fernandes, Marco Cruz

Barometer, 2021a), and with regard to population, taking the ninth position in the world

(World Barometer, 2021b).

In political terms, Russia’s geography enhances connections to all continents through

different forums (political and economic), in particular the BRICS (Brazil, Russia, India,

China and South Africa), and States with a strong historical connection to Russia and the

former Soviet Union (Central and South America and Africa). As a result of this

connection, economic and military relations are favoured, through the sale of arms and

military support, in terms of cooperation, the installation of bases and the development

of military capabilities. In addition to state-owned companies, this proximity also favours

the intervention of Russian companies in the various markets.

The RNSS also refers to Russia's global dimension through the UN, in particular in the

permanent seat at the UNSC. The reference to the principles of the UN Charter, as a

model for regulating the world order, intends to “call” Russia to participate in the main

global issues, thus reinforcing its weight with the main powers. The appeal made to

multilateralism, as a way of reducing tensions, seeks to claim a new global order, where

Russia, together with other powers (China), seeks to assume a prominent role and have

global institutional weight. In addition to its role in the UNSC, Russia’s ambition includes

strengthening its participation in UN Peacekeeping Operations (RF, 2021: 40).

In military terms, Russia's global claim is mainly made by its capability and strategic

deterrence. The RNSS underlines Russia’s need to maintain its leading position in terms

of technology, weapons and its entire industrial complex linked to this capability. Despite

advocating maintaining levels of nuclear deterrence, the Strategy continues to give

primacy to international understanding as a way to reduce the risks associated with its

use (RF, 2021: 5, 11-12, 39). Being currently considered the first power with the greatest

capacity in numerical terms, with 6257 warheads (FAS, 2021), both in technological

terms, followed by the US, the Russian nuclear capacity gives it this weight among the

great powers.

In the military-technical vector, Russia sees itself as a leader on a global

scale. A large part of Russian investments is sold to third parties, sometimes sacrificing

the strengthening of the military capabilities of its Armed Forces. Currently, there are

weapons and technology sold by Russian state-owned companies that are not available

to the Russian military (Connolly & Sendstad, 2017). This sale expands Moscow's

influence on a global scale, particularly in markets in politically closer countries. This is

how the Kremlin's ambition to guarantee not only technological leadership, but also, as

mentioned in the RNSS, strategic autonomy must be understood (RF, 2021: 13).

Despite the elements of global image mentioned above, the RNSS is mainly dedicated to

Russia’s ambition in regional terms, the Russian “near abroad”, which encompasses the

States that are part of the CIS. It reflects the main security concerns, including how

Vladimir Putin will consider the use of all means, including the military. For this region,

several activities and measures are proposed, including the use of kinetic resources,

In addition to state-owned companies, mainly linked to the energy and armaments sector (Luzin, 2021),

the role that the Russian private military security company Wagner plays in the foreign policy of the Russian

state is highlighted, increasingly reinforced in several countries, namely Libya (Stronski, 2020), Ukraine,

Iraq, Afghanistan, Yemen, Chad, Sudan, South Sudan, and Mozambique (Katz, B. et al., 2020).

According to data from the Federation of American Scientists (FAS) (2021), Russia and the US hold about

91% of nuclear weapons worldwide. As far as strategic nuclear weapons are concerned, the two countries

are on par (the US has 100 more of these weapons, out of a total of 1700.

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The security dilemma in Russia’s new national security strategy:

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Sandra Fernandes, Marco Cruz

strengthening cooperation with the CIS States, South Ossetia and Abkhazia, and with

international institutions, namely the Eurasian Economic Union (EEU), the Collective

Security Treaty Organization (CSTO) and the Union of Russia and Belarus (RF, 2021: 39-

42).

The strategic centrality of the post-Soviet area is revealed in the tasks identified in

paragraph 101, dedicated to Russian foreign policy (RF, 2021: 39). Of the 25 proposed

actions, eight explicitly concern States in this area, while others can also be applied to

this region. Besides the political, informational and cultural connection, the military

aspects, the sale of weapons and technology and multilateral technical-military

cooperation are also highlighted here.

In turn, in regional terms, the link to China, along with India, is seen as fundamental,

exploring the economic and technological aspects of this relationship, both in the bilateral

framework and in the multilateral framework offered by the Shanghai Cooperation

Organization

. In addition to issues related to the international order, political relations

between Moscow and Beijing have economic issues as a central pillar. Since 2002, when

the turnover between the two was 8 thousand million dollars, there has been an increase

in trade, to the point that in 2018 the turnover was around 110 thousand million dollars

(Larin, 2020). On the Russian side, exports are mainly related to the energy, technology

and agriculture sectors, while China is a relevant partner in the supply of manufactured

products, as well as in the investment sector (Hill, 2021). In political terms, the alignment

of Moscow and Beijing reinforces their positions in relation to the change of the

international order, seeking to replace US hegemony and unilateralism. In military terms,

Russia is one of the main Chinese partners, providing support in the training and sale of

material and technology. Together with India, the two states receive around 56% of all

Russian arms exports (Connolly & Sendstad, 2017: 11). Joint exercises between the

Chinese and Russian Armed Forces, such as the Vostok military exercises (2018),

reinforce strategic and operational proximity.

In addition to the bilateral aspects, relations between Moscow and Beijing are also

implemented at multilateral level. At the UN level, there is an alignment between the two

regarding the US leadership role in the organization. In March 2021, foreign ministers

called for a meeting with the permanent members of the UNSC, in order to discuss the

main focuses of turmoil, with the Russian minister referring to the destructive way in

which the US has acted in international terms (Reuters, 2021). In the diplomatic sphere,

the solidarity between Moscow and Beijing was expressed in the Chinese silence

regarding the Russian invasion of Crimea (Ismail, 2019). This stance has also been visible

in the current war in Ukraine, as in addition to Beijing refusing to use the term «invasion»,

it has also framed this conflict as Russia's response to NATO's policies of enlargement to

Eastern Europe (Liu, 2022). China abstained from the Security Council the day after the

start of the Ukraine conflict, in the resolution condemning the invasion (UN, 2022).

A Eurasian political, economic and military organization founded in 2001, whose headquarters are in Beijing.

It comprises eight states (Kazakhstan, China, India, Pakistan, Kyrgyzstan, Russia, Tajikistan and

Uzbekistan), four observers (Afghanistan, Belarus, Iran and Mongolia), six dialogue partners (Armenia,

Azerbaijan, Cambodia, Nepal, Sri Lanka and Turkey) and three guests, two organizations (ASEAN and CIS)

and one State (Turkmenistan).

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e-ISSN: 1647-7251

Vol. 13, Nº. 1 (May-October 2022), pp. 1-18

The security dilemma in Russia’s new national security strategy:

between militarism and being a geographical pivot

Sandra Fernandes, Marco Cruz

On the western stage of the Eurasian continent, Russia’s intervention is mainly focused

on areas of traditional influence whose geographical proximity and security challenges

are seen by Moscow with great concern. In addition to political and economic support for

partner states, as a way of limiting the ability of other foreign powers to intervene (RF,

2021: 5, 26), the Russian strategic document points to the threats of NATO enlargement

and the construction of military bases in the vicinity of Russia, its allies and partners (RF,

2021: 11). In the field of cooperation regarding information, it is with partner states that

Russia proposes to work, including the use of information and communication

technologies (RF, 2021: 23). Still in relation to this regional priority, Russia is willing to

“support allies and partners (...) in matters related to security and defence, and in

neutralizing attempts to interfere (by external actors) in its internal affairs”. (RF, 2021:

40).

The post-Soviet area (RF, 2021: 42) is, therefore, the region where most of the vital

Russian objectives are identified, particularly in the field of security. Thus, Belarus,

Ukraine and Moldova stand out as a buffer zone (Toucas, 2017) (Tabachnik, 2019), that

is, as a kind of “sanitary cordon” in relation to the West, and, to a lesser extent, the

Baltic States (Estonia, Latvia and Lithuania), Poland, the Czech Republic, Romania and

Bulgaria. In addition to the military instrument, Russia’s intervention also includes the

information one, through disinformation and propaganda campaigns, including using the

local media. This combination of civil and military, material and virtual instruments

reinforces Russia's hybrid intervention capabilities in different regions, particularly in its

“near abroad”.

In regional terms, Russia has also taken advantage of a large part of the opportunities

generated by the lack of capacity and understanding of Western powers to act in certain

geographical spaces, seeking to support factions opposite to those supported by Western

powers in several States. Depicting the increase in tensions and conflicts in the post-

Soviet space, the Middle East, North Africa, Afghanistan and the Korean peninsula, the

RNSS associates this widespread regional instability as a source for the development of

international terrorism and extremist activities (RF, 2021: 12). The centrality that these

types of threats have in Russia’s strategy, in internal (RF, 2021: 35) and international

(RF, 2021: 41) terms, including the risks associated with the use of nuclear, chemical

and biological weapons by these actors (RF, 2021:17), seek to legitimize Russia’s

influence and intervention in areas where these greatest risks and threats are identified.

Syria and Afghanistan are two examples of the way the Kremlin has guided its foreign

policy, in the sense of “limiting” terrorism and extremist activities, and also Western

influences. Political, diplomatic and military support for President Assad's regime has kept

the Syrian leader in power. The same is true of Afghanistan, where the withdrawal of the

American and NATO military contingent has allowed Russia to have an even greater role

in the governance of that State. The Taliban's visit to Moscow, to point out that their rise

to power in Afghanistan does not pose any threat to Russia, illustrates this protagonism

(AP, 2021).

The affirmation of Russia in areas where Western powers have sought to change the

status quo, mainly through democratization-Europeanization processes, aims to reinforce

Russian identity, both internally and internationally. The West has therefore been

designated as the “other” (Maalouf, 2003: 14; Fukuyama, 2018: 45), that is, the enemy,

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for the identification and reinforcement of the civilizational framework. Although not a

new element, Vladimir Putin has, in recent years, used this factor to strengthen not only

the country's power, but also the legitimacy of his own power. His declaration, three days

before the invasion of Ukraine, regarding the non-existence of the State and the

Ukrainian people, serves this same objective, not only of hostility towards the West, but

in particular of affirmation of Russian identity (Putin, 2022) .

3. The Russian geopolitical pivot in a polycentric world order

We identified above that the RNSS considers all actions that jeopardize Russia’s interests.

This scope of the concept broadens, in geographical terms, Russia's scope of action,

seeking to obtain legitimacy (internally and externally) to act outside its physical borders.

In addition to Moscow's recognized military (land, air, naval, aerospace and cyber) (IISS,

2021; GFP, 2021) and technological (Jankowski, 2021) capabilities, the most recent

Russian interventions have been supported by Russian perception of its active role in the

current global geopolitical context and in the main world crises and conflicts, as well as

by the great powers, especially China and the US. In this regard, mention should be

made to Russian action and influence in Africa (Siegl, 2021) and in the Middle East

(Rumer & Weiss, 2019; Borshchevskaya, et. al, 2021).

Russia’s prominent role in the so-called “modern world”, which is marked by the increase

in geopolitical tensions (RF, 2021: 3), is reflected in the RNSS through its proposed and

coveted contribution to the stability and security of the international system. In addition

to identifying itself as fundamental to increasing predictability in relations between

states, the document highlights Russia’s role in strengthening global confidence and

security (RF, 2021: 38).

It is in the identification of Russia as a fundamental actor for the maintenance and

resetting of the international order that the RNSS stands out the most, recognizing not

only that the Western powers will seek to maintain their international predominance, but

also that there is an increase in the number of centres of economic and political power.

Due to these circumstances, there are States that reinforce their role in regional and

global terms, even intending to change the world order itself, in its architecture,

principles and values (RF, 2021: 3). Although it does not mention it explicitly, Russia's

strategic document refers to China as the revisionist power of the new global order, with

whom it intends to develop a comprehensive partnership and strategic interaction (RF,

2021: 40).

Russia's favourable geographical position, as a Eurasian power, allows it to obtain

advantages in the context of the strategic rivalry between the US and China, seeing itself

as a geopolitical “pivot” of that relationship. In addition to economic benefits, Russia also

seeks, in this pivotal position, to achieve its own strategic objectives, namely regaining

recognition as a global power. Like the Chinese government (Romana, 2005: 301-309)

(Gaspar, 2020: 43) (Economy, 2022), Russia also aims to put an end to American

hegemony, thus contesting, both in normative and material terms, a world order that is

no longer de facto dominated by the US.

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Despite the proximity (political, economic and military) between Beijing and Moscow,

there are areas of strategic competition between the two regimes. It should be noted

that, currently, China competes in markets and with Russia's own partners, and the

Kremlin is aware of this problem. The arms trade and disputes over Asian and African

markets are just one of the reflections of this rivalry, since both have influence in them,

and in the case of China, it is booming. In addition to military issues, there are still other

areas in which relations are troubled, with border disputes between the two countries

dating back to the Soviet period

. (Gerson, 2010; Sidorov, 2014). In international terms,

the (re)ascension of China took place, in large part, during the period of weakening of

Russia (Soviet Union and the 1990s), so there are also, in global geopolitical terms,

disputed zones and areas, the example of what happens in the countries of Central

America, politically closer to Moscow (Nicaragua, Venezuela and Cuba), in the countries

of North Africa and in the South Caucasus. There are discrepancies between the two

powers in terms of economics and human resources, with China booming in economic

terms and with a high human development index, representing 20% of the population

worldwide (WPR, 2022).

Beijing aims, therefore, to surpass the other powers, including Russia, in other vectors,

particularly in the military, technological and nuclear areas. In the nuclear field, the

Chinese construction of another field with 120 nuclear silos in the province of Gansu,

located some 350 kilometres from another one in the east of Xinjiang, constitutes both

a threat to the American territory and to the entire Russian territory (Korda & Kristensen,

2021).

Aware of the Chinese “dangers”, in addition to seeking the integration of China in different

multilateral forums, for example, in the CIS, Putin also intends to counterbalance China's

regional power through (discreet) rapprochement with the West. Thus, while realizing

the importance that Russia has for China in altering the international order and North

American hegemony, Russian diplomacy has also understood its value to Western powers

in relation to the Chinese threat, in global terms. Moscow seeks to assume itself as a

geopolitical pivot between these two actors, valuing both the broad partnership and

strategic interaction with Beijing (RF, 2021: 40), as well as the maintenance of relations

with Western powers, in particular the US.

It is in this sense of greater awareness of the China factor that the strengthening of the

dialogue between Russians and North Americans is understood. In May 2021, the new

US administration, led by Joe Biden, lifted the sanctions imposed on the company “The

Executive”, which is primarily responsible for the construction of the Nord Stream 2 gas

pipeline. The project has created many tensions between the EU and the US, as it further

increases the EU's energy (and political) dependence on Russia.

Although the Russian and North American leaders publicly maintain some points of

disagreement (BBC News, 2021), both showed some progress in their relations, in order

to guarantee “strategic stability”, and establish a “bilateral dialogue of strategic stability”

(Biden, 2021), in an attempt to strengthen diplomatic and military channels between the

In addition to economic issues, one of the main reasons that led the Russian Federation to seek its

integration into Western institutions, right after the implosion of the Soviet Union, was, as Trenin (2001:

93) mentions, the fear of an eventual Chinese expansion into its borders.

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two states. Steps were also taken towards understanding cybersecurity issues and

conflicts in Syria, Afghanistan and Ukraine.

Russia's understanding of its geopolitical and geostrategic relevance to Western

aspirations to contain China reinforces its status as a world power, publicly recognized

by President Biden

at a press conference after a meeting with Putin (Biden, 2021). This

Western awareness allows the Kremlin to obtain greater tolerance in relation to the

actions promoted mainly in its near abroad, and to increase its negotiation margin in

relation to its vital interests, of which the most recent example is Moscow's demand to

"close" the Ukrainian question, through the guarantee, by treaty, that Ukraine will not

join NATO.

The role of global geopolitical pivot aims, on the one hand, to obtain economic and

political benefits, in relation to areas of Russian interest that involve the two main

international actors (US and China), and, on the other hand, to mitigate the threats that

both sides can represent for Russia, exploring its weaknesses at different levels:

economic, social, political and security. The current conflict in Ukraine has exposed the

dynamics of relations between Russia, China and the US-led Western countries. In

conflicts with the West, on the part of Beijing or Moscow, in relation to areas of influence,

there is a “collaborative neutrality” (Costa, 2022) of the actor not directly involved, thus

expanding its own international protagonism. Although cautiously, given the trade

relations it has with Western powers, in the Ukraine crisis, China has tried not to leave

Russia completely isolated. This shared awareness between the Russians and Chinese of

maintaining a strategic proximity to confront Western powers is particularly valid in their

respective areas of interest and when Americans and Europeans seek to gain greater

prominence and limit their own influence in regional and international terms.

Conclusion

In substantial terms, the new RNSS is the formulation of the Russian security dilemma,

both in terms of interpretation and response (Booth and Wheeler, 2007). Very focused

on the transformation of the world order, resulting from changes in the International

System, within which the powers seek to strengthen their positions in the global

structure, it increasingly foresees the use of the military instrument as a way of

guaranteeing and imposing national interests, which are reflected in different domains

and regional areas.

Moscow seeks to be a global geopolitical pivot, taking advantage of its diplomatic and

geographic proximity to China, and thereby obtaining economic dividends. It is largely

related to the supply of energy (hydrocarbons), which support its economy and

consequently its technological development, one of the most relevant vectors of Russian

power. In the context of Russia's increasing isolation since February 2022 and from the

Unlike the previous US president, Barack Obama, who referred to Russia, in 2014, as a regional power (The

Guardian, 2014). This aspect is of great importance for the analysis of the evolution of the relationship

between the US and Russia, as Biden was, at the time, Vice President.

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perspective of the EU being able to redirect its energy market, China's relevance has

increased.

Despite the preponderance of the anti-Western stance, the Kremlin is aware of its role in

the relations between Beijing and Western powers, in particular with the US, identifying

itself in this same relationship as a key actor in geopolitical terms. The role played by

Russia in this context increased its capacity to “negotiate” in relation to the geographic

space it considers to be of vital interest, in particular its “near abroad”. The diplomatic

posture of the Western powers in the face of Russian “bellicosity” in the weeks of crisis

that preceded the war in Ukraine confirmed this.

This Russian centrality reinforces its instruments of power as a global power, which are

materialized in political terms through its weight in the UNSC, and, in military terms,

through nuclear issues and nuclear development. Therefore, we can, argue that the RNSS

goes from the centre to the outside. This is because it interconnects aspects of foreign

policy with matters of internal policy and the legitimacy of the government in the eyes of

the Russian population and, above all, because the image of power in regional terms,

particularly along its borders, reinforces Russia’s intentions to establish itself as a global

power, in the “new” order that it (along with China) seeks to forge. However, the global

effects of the military offensive against Ukraine question the statement desired by the

Kremlin, to the point of becoming an eventual pariah state.

The RNSS was established as a roadmap for the announced “new” international order,

within which Russia seeks to safeguard its various interests, adjusting its capabilities to

its weight in the international geopolitical context, as a power on a global scale. The

decision to invade Ukraine is thus in line with perceptions of threat and the centrality of

resorting to the military factor. The western response to the invasion of the country,

centred on the isolation of Moscow, as well as the adherence of private actors to this

stance, raise serious doubts about the materialization of Russian objectives of being a

new centre of power in a relationship of connivance with actors such as China.

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OBSERVARE

Universidade Autónoma de Lisboa

e-ISSN: 1647-7251

Vol. 13, Nº. 1 (May-October 2022)

PROTECTION OF DEMOCRATIC PROCESSES AND ELECTORAL ACTS FROM

RUSSIAN DIGITAL ACTIVE MEASURES: 2016 AS A REFERENCE YEAR

RICARDO SILVESTRE

ricsilvestre@hotmail.com

PhD in Philosophy from the University of Connecticut, with a major in Human Physiology, and an

MA in International Relations from the Lusófona University of Humanities and Technology in

Lisbon, with a focus on the future of online political debate. International Officer of the think tank

Social Liberal Movement (Portugal). Coordinator of political communication projects with the

European Liberal Forum, the think tank of the Alliance of Liberals and Democrats for Europe party

in the European Parliament. His main interests in the area of political research are: the future of

democracy, digital solutions to societal problems, and the transition and energy independence of

the European Union with its associated reduction of the security dilemma towards authoritarian

and illiberal countries.

Abstract

Russia has been credibly accused of trying to weaken Western liberal democracies with use

of digital means. Cybersecurity experts, intelligence agencies, investigative journalists, and

government services, have detailed the Kremlin's actions in illegally accessing digital

infrastructures, disseminating stolen contents online, and influencing political debate on digital

platforms to create dissention and polarization. These initiatives are included in a wider

strategy of altering the balance of power in the international order via what are known as

‘active measures’. Two of the most consequential recent application of this kind of measures

took place in 2016, in the United States Presidential Elections and in the Brexit Referendum.

Reports made public with the assessments of errors committed by the United States and the

United Kingdom governments show there was an insufficient protection of those two crucial

public consultation processes. The mistakes made by these countries in protecting democracy

from hostile agents with a high level of digital proficiency, should be a point of interest, and

urgency, for the European Union. It is to be expected that this kind of influence operation will

continue, and become more sophisticated, as they can target elections in Member States of

the Union, but also for the European Parliament. The early detection, applying of

countermeasures, and the sharing of information with the voters of this kind of attacks by

foreign agencies is an important defense mechanism that needs to be strengthen and

expanded.

Keywords

Democracy; intelligence agencies; digital platforms; Russian Federation; European Union

How to cite this article

Silvestre, Ricardo (2022). Protection of democratic processes and electoral acts from Russian

digital active measures: 2016 as a reference year. In Janus.net, e-journal of international

relations. Vol13, Nº. 1, May-October 2022. Consulted [online] on the date of the last visit,

https://doi.org/10.26619/1647-7251.13.1.2

Article received on May 11, 2021 and accepted for publication on March 3, 2022

JANUS.NET, e-journal of International Relations

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Protection of democratic processes and electoral acts from Russian digital active measures:

2016 as a reference year

Ricardo Silvestre

PROTECTION OF DEMOCRATIC PROCESSES AND ELECTORAL ACTS

FROM RUSSIAN DIGITAL ACTIVE MEASURES:

2016 AS A REFERENCE YEAR

RICARDO SILVESTRE

Introduction

The Kremlin has been trying to weaken western liberal democracies considered by the

establishment, and by President Putin, as threats to the Russian Federation

Cybersecurity experts, intelligence agencies, legislative bodies, and investigative

journalists, have detailed some of Moscow's initiatives to meddle in democratic

processes. Examples include Georgia, Estonia, Lithuania, Ukraine, Netherlands, France,

Germany (Tennis, 2020). Russian's behavior, as seen through Robert Jervis' theory of

the “four worlds”, has an internal logic: the preference for offensive actions to tilt the

balance of power in the international order (Jervis, 1978). Also, the decision of not

assuming defensive postures could be seen as a response to political and social

perceptions of threats coming from the borders to the west (Rato, 2018). Such concerns

leads to a maximization of power, instead of cooperation (Baylis, Smith & Owens, 2019).

In an anarchic international system, states seek their survival by weakening adversaries.

One example is the creation of disrupting actions in those countries (Mearsheimer, 2001).

One of these disruptions is the targeting of democratic systems, elections and

organizations with digital tools. An analysis of cyber enabled incidents between 2014 and

2018 (Galante & Ee, 2018) show that these could be; exploitation of infrastructures via

access to computer networks with collection or alteration of datum; manipulation of votes

from voter registration, changing of vote counting or of casted votes in order to cause

distrust of electoral results; dissemination of information obtained illegally with

compromising materials for politicians or political parties; “false fronts” with counterfeit

profiles of individuals and groups, mainly on social networks, with the intention of causing

polarization; amplification of dissension with open or covert operations; production and

spreading of false information and misinformation.

Two of the most consequential, and even striking, actions by Russia in interfering on

democratic processes took place during 2016, in the United States Presidential Election

and the United Kingdom European Union Membership Referendum. Getting back to the

Article translated by Cláudia Tavares.

To better understand the motivations of President Putin it is suggested the reading of “The Man Without a

Face. The unlikely rise of Vladimir Putin”, from Masha Gessen.

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Ricardo Silvestre

theories of Jervis and Mearsheimer, these actions can be seen as resulting from a

calculation by the Kremlin of risks and benefits of said actions. The risks were further

antagonizing the international community, with the possibility of sanctions and

proportional responses. As for benefits, contributing to the breakdown of a neighboring

economic and political bloc, and helping to defeat a candidate for President of the United

States that was manifestly opposed to the regime in Moscow in favor of other clearly

more friendly, if not eager to acquiesce to the Russian President intentions. The results

were obviously positive for the Kremlin. The United Kingdom left the European Union,

with internal divisions that could lead to the disaggregation of the Kingdom. In the United

States, the Trump Administration alienated allies, tried to diminish the importance of the

North Atlantic Treaty Organization (NATO), even threatening America's exit from the

organization, privileged Russian interests in the Middle East, and placed the United States

in economic and diplomatic “wars”, that diminished the country's status in the

international community. The European Union was also a target of these actions in some

of its Member States, that lead to the implementation of measures to combat

misinformation, false news, cyber-attacks, disruption and polarization operations. The

Vice-President of the European Commission for the Digital Single Market said in 2019

that “[w]e must protect our free and fair elections. This is the cornerstone of our

democracy. To secure our democratic processes from manipulation or malicious cyber

activities by private interests or third countries” (ENISA, 2019).

Research goals and methods

The objectives of this paper is to produce a systematized body of knowledge, by

describing how Russian digital active are being deployed in western liberal democracies

with the intent of causing dissention, and disruption. Equally, solutions will be proposed

on how better fight these threats. The methodology used is a qualitative research

strategy, with the collection of information with the aim of developing a meaning

associated with said activities and responses (Unikaitė-Jakuntavičienė & Rakutienė,

2013). This strategy allows for the creation of a constructivist narrative, which aims to

develop a theory in a deductive way, starting with specific facts, empirical observation

and advancing to a theoretical generalization of the facts related to the theory. Likewise,

a qualitative scientific investigation will be applied, with the analysis of the behavior of

the different agents involved in the construction of the theory, as well as values, beliefs

and emotions. This will be done through observation, analysis of speeches, documents

and opinions from governmental and civil society organizations and news articles. The

research logic is thus inductive, with a starting point of cognition of reality, flexible

concepts and analytical generalizations with the help of examples (Unikaitė-

Jakuntavičienė & Rakutienė, 2013).

Literature review

The Russian Federation and “active measures”

The term active measures was developed in the Soviet Union, beginning in the 1950s, to

characterize secret and subversive operations of political influence which are easily

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Ricardo Silvestre

refutable. They can range from creation of front organizations, support for pro-Russian

political groups and the spread of disinformation (Galeotti, 2019). In 1982, the then

leader of the State Security Committee (KGB), Yuri Andropov, made active measures one

of the Kremlin's main forms of intervention during the Cold War (Andrew & Mitrokhin,

2006: 316). The use of these measures slowed down when the Soviet Union changed

their approach to the international community, first led by Gorbachev, and then by

Yeltsin, with attempts to have a closer relationship with the west. With the loss of

influence of Russia and with the rise of Vladimir Putin to power, Moscow returned to

hostilities towards countries, and blocks of countries, that promote liberal and democratic

values. These values can then reach Russia and the countries at its frontiers. This was

the case of the 2012 protests in Russia for free elections, which Putin explained as an

American influence operation (Crowley & Ioffe, 2016), or in the case of the “color

revolutions” on its borders (Stewart, 2009). Added to this concern, are the debilitating

economic sanctions for primary sectors of the Russian economy, blockade to the sale of

arms and related materials, freezing of economic assets and of the acquisition of

equipment for the oil industry (Krausse, 2018). And then there is NATO, and in particular

Article 5º of the organization charter, where an attack to one of the members is an attack

on all (OTAN, 1949). This causes an attractive prospect for countries that Russia thinks

as part of its sphere of influence. All these factors increase the perception by Putin of a

siege around him (Rato, 2018).

With the decrease in the expectations of east-west understandings, Moscow returned to

the array of actions already known, adding to recent ones carried out in the “near abroad”

countries (Galeotti, 2019). Recently, in 2013, General Valery Gerasimov, Chief of Staff

of the Russian Army, advocated the use of “indirect and asymmetric methods” to create

political influence (Bartles, 2016: 33). This includes, changing the balance of power in

adversarial countries (Bartles, 2016: 34), and support of political parties that defend a

friendly relation with Moscow, as observed in Italy and Germany (Apuzzo & Satarino,

2019), and in France (Turchi, 2017). It is also attributed to Gerasimov the proposal that

the tactics developed during the time of the Soviet Union should be updated and included

in strategic military thinking, for a “new theory of modern warfare—one that looks more

like hacking an enemy’s society than attacking it head-on" (McKew, 2017). Strategic

measures advocated by the General include combinations of technological, informational,

diplomatic, and military actions (Galeotti, 2013). In September 2014, General Philip

Breedlove, during a meeting of NATO, warned that Russia was engaged in “the most

amazing information warfare blitzkrieg we have ever seen in the history of information

warfare" (Vandiver, 2014).

Among the main Russian organizations, in terms of creating and applying active

measures to intrude into the democratic processes of foreign countries, intelligence

agencies stand out. The best-known examples are: the Main Directorate of the General

Staff of the Armed Forces of the Russian Federation, or GRU

; Federal Security Service

of the Russian Federation, or FSB

; and the Foreign Intelligence Service of the Russian

Federation, or SVR

. The Kremlin's administrative apparatus is characterized by being a

Glavnoje Razvedyvatel'noje Upravlenije, in the original.

Federal'naya sluzhba bezopasnosti, in the original.

Sluzhba Vneshney Razvedki, in the original.

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“non-institutionalized” system with a high level of coordination between agencies for the

application of active measures (Galeotti, 2017). They then report directly to the Kremlin

and/or President Putin (DNI, 2017). From there, three known forms of interference in

elections are known: directed by the State with actions carried out by operatives in their

capacity as representatives of the regime; encouraged by the State, where operatives

are not directly responsible for initiating active measures, but whoever is responsible

does so with the knowledge that it will be welcomed by leadership; and those aligned

with the state, where individuals and/or organizations act for the promotion of the regime

policies (Galante & Ee, 2018). As an extension of the intelligence agencies there are also

private institutions, under the control of oligarchs in the orbit of Putin, that act to advance

pro-Russian narratives, by creating polarization in the public opinion of targeted

countries. That is the case of the Internet Research Agency (IRA), based in St.

Petersburg, which will be presented in more detail ahead. These different “attack fronts”

create a “connective tissue” of organizations that work towards the same goal (Watts,

2018), in the unconventional modern warfare model suggested by Gerasimov. These

kinds of actions, its origins and applications, have been described extensively in reports

made public by western intelligence agencies. Some of these examples will now be

presented.

The United Kingdom European Union membership referendum

Before the 2014 referendum on the future of the relationship between the United

Kingdom and the European Union (Brexit), another referendum happened on the possible

independence of Scotland from the Kingdom. In that democratic process, Russian-based

operatives were detected intruding in the public consultation (Carrell, 2017). Through

Twitter, Facebook and YouTube, fake accounts spread allegations of interference in the

referendum to bolster the maintenance of Scotland in the Union. Despite the absence of

a direct link to Moscow, “pro-Kremlin accounts demonstrably boosted those allegations.

The anger and disappointment felt by many yes voters [was] fanned by pro-Kremlin

trolls, in a manner characteristic of Russian influence operations” (Carrell, 2017). The

prospect of a desegregation of the United Kingdom matches to the aims of the Kremlin

of destabilization of western bloc of countries, and a weakening of adversaries both in

the military and political arena. The exit of Scotland of the Kingdom poses a challenge to

the national security and economical prowess for all countries involved. A diminution of

Great Britain’s standing in the world leads to less advantageous trade deals, since

Scotland accounts for one-third of the land mass and around 8% of consumers. Equally,

a break-up of the Kingdom would lead to military questions. An exit of Scotland of the

Union could “unilaterally disarm the UK of its nuclear deterrent”, since those defences

are “currently located at Faslane and Coulport but an independent SNP government would

require their removal from Scotland” (Daisley, 2020). It should be added that Nicola

Sturgeon, who assumed the position of Prime Minister after the referendum, denied that

such influences had existed in the public consultation, and the Electoral Commission,

which as the authority for holding elections and referenda, guaranteed that it had found

no evidence of fraud. The same was assured, post-Brexit, by the Office of the Prime

Minister Theresa May's, assuring there was no evidence to support the conclusion that

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the referendum in the United Kingdom and the European Union relationship was targeted

for interference by foreign governments (Syal, 2017).

However, evidence that Her Majesty's Government could have underestimated, or worse,

minimized possible active measures during the Brexit referendum prompted the request

for an assessment of the actions taken by institutions responsible for the protection of

democracy in the Kingdom. After what was considered to be a excessive delay for the

publication of the assessment, and accusations of attempts to minimize the importance

of his contents by the Office of the Prime Minister Boris Johnson (Murphy, 2020), the

Intelligence and Security Committee of Parliament published the report named “Russia”

(ISCP, 2020). This Commission supervises the activity of intelligence agencies; the

Security Services (MI5), the Secret Intelligence Service (MI6) and Government

Communications Headquarters, or GCHQ. One of the justifications for the report

production states that "[t]here has been credible open source commentary suggesting

that Russia undertook influence campaigns in relation to the Scottish independence

referendum in 2014" (ISCP, 2020: 13). Regarding the referendum in the relation between

the United Kingdom and the European Union, “[t]he written evidence provided to us

appeared to suggest that HMG [Her Majesty's Government] had not seen or sought

evidence of successful interference in UK democratic processes or any activity that has

had a material impact on an election, for example influencing results” (ISCP, 2020: 13).

Going further, the Commission states that “[w]e have not been provided with any post-

referendum assessment of Russian attempts at interference. This situation is in stark

contrast to the US handling of allegations of Russian interference in the 2016 presidential

election” (ISCP, 2020: 14). The Commission determined that Her Majesty's Government

seriously underestimated the Russian threat and neglected countermeasures, therefore

not protecting the referendum process (ISCP, 2020a).

In the report it is described that the Russian Federation tends to see foreign policy as a

“zero-sum”, where every action detrimental to the west is favorable to Moscow. This

stems from an appreciation “fed by paranoia, believing that Western institutions such as

NATO and the EU have a far more aggressive posture towards [Russia] it than they do in

reality” (ISCP, 2020: 1). The decision center "is concentrated on Putin and a small group

of trusted and secretive advisers (many of whom share Putin’s background in the RIS

[Russian intelligence services])” (ISCP, 2020: 29) causing those decisions to have an

applicability and flexibility that western organizations cannot match. Mainly, and as

assessed by the GCHQ, Russia has a high capacity in the digital area and is able to carry

out cyber operations with a wide range of impacts in various sectors of society.

Since 2014, the Russian Federation has “carried out malicious cyber activity in order to

assert itself aggressively in a number of spheres, including attempting to influence the

democratic elections of other countries (…) GCHQ has also advised that Russian GRU

actors have orchestrated phishing

attempts against Government departments” (ISCP,

2020: 5), something that was observed in the United Kingdom, Germany and the

Netherlands (Silvestre, 2019). In fact, on the third of October 2018, the Minister of

Foreign Affairs, at the time lead by Jeremy Hunt of the Conservative Party, publicly

announced that the United Kingdom and its allies had identified a GRU campaign that are

The act of phishing is the sending of fraudulent emails to induce users to share personal datum, such as

passwords.

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“reckless and indiscriminate: they try to undermine and interfere in elections in other

countries” (NCSC, 2018).

Regarding proposals to fight the threats observed during the referendum, the

Parliamentary Commission expressed that the “extreme care” by the intelligence

agencies to get involved in democratic processes is “illogical”. Interference in electoral

acts by hostile countries should be seen as a priority regarding protection of the State

and that this should be the responsibility of intelligence agencies (in particular, the MI5)

(ISCP, 2020: 11). Another important recommendation in the report is that the

Government should establish protocols with social media platforms to ensure that they

detect active measures by hostile actors, with a clearly defined time for the removal of

such contents. As legislative recommendations, the Digital, Culture, Media and Sport

Select Committee asked the Government to assess whether current legislation to protect

the electoral process from malign influence is sufficient and, that "[l]egislation should be

in line with the latest technological developments” (DCMS, 2019: 71). They also propose

that the Electoral Commission should have the power to “to intervene or stop someone

acting illegally in a campaign if they live outside the UK” (DCMS, 2019).

The elections for the American Presidency

In February 2018 the then Special Counsel Robert Mueller delivered de facto evidence to

a federal grand jury in the District of Columbia, which resulted in the indictment of

thirteen Russian individuals and three Russian organizations for interfering in the 2016

American presidential election (USDJ, 2018). The indictment shows the scope, and the

systematic nature of the attacks, which began in 2014. Particularly active was the

company Internet Research Agency (IRA), with its troll farms

. By stealing American’s

identities, creating false accounts on social media platforms, and disseminating

inflammatory content, both racial and social, IRA tried to cause disruption and political

polarization. This company operations were not limited to remote actions from Saint

Petersburg, but also in cooperation with members of the Trump campaign "on the

ground" (USDJ, 2018: 4). Using fake profiles on Facebook and Twitter, IRA members

organized rallies and meetings in the United States, via local campaign headquarters,

and bought online advertisements to promote those rallies and meetings (USDJ, 2018:

21-28).

Like the Special Counsel Mueller, the US Senate Select Committee on Intelligence was

also clear in its conclusions: Russian operatives, through the IRA, used digital social

media platforms to conduct informational war campaigns, spreading disinformation and

creating division in the United States (SSCI, 2019: 3). These campaigns were carried out

under the direction of the Kremlin, and with the objective of reducing the chances of

success of candidate Hillary Clinton in favor of candidate Trump (SSCI, 2019: 4), since

the former was seen as more hostile to Russian interests (SSCI, 2019: 6). Although

Moscow rejects the US Senate's conclusions, IRA owner Yevgeniy Prigozhin has direct

links to President Putin, which points to a “Kremlin's direction, support and significant

authorization in the operations and objectives of IRA" (SSCI, 2019: 5). Like the IRA, the

A troll farm is group of internet users aiming interfere in the political discussion online with (mostly)

nefarious purposes.

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GRU was also accused of exploiting social media platforms to spread information obtained

illegally. This was done by disseminating Clinton campaign e-mails, information that was

obtained by the Units 26165 and 74455 inside GRU (USDJ, 2018a). In fact, Special

Counsel Mueller charged Colonel Aleksandr Osadchuk, commander of Unit 74455, for

assisting “in the release of stolen documents through the DCLeaks and Guccifer 2.0

personas, the promotion of those releases, and the publication of anti-Clinton content on

social media accounts operated by the GRU” (USDJ, 2018a: 5). In a joint statement by

the Department of Homeland Security and the Director of National Intelligence (DHS,

2016) it was announced that the American intelligence community was confident that the

Russian government had interfered in the elections through the misuse of emails

obtained illegally from American political organizations. To this end, they used the help

of external organizations, mainly WikiLeaks and Guccifer 2.0, the second being another

front for Russian military intelligence services (Sanger & Schmitt, 2016). The American

intelligence agencies that contributed to this investigation included the Federal Bureau of

Investigation (FBI), the Central Intelligence Agency (CIA), and the National Security

Agency (NSA). Naturally, the degree of trust between the agencies in the results of the

analytical processes was not uniform. However, most conclusions are presented with a

“high degree of confidence” (DNI, 2017).

Regarding the use of social media platforms by Russian agents, Facebook confirmed to

the Special Committee that activity attributable to the Fancy Bear group (Unit 26165 of

GRU) was observed (Graff, 2018). Like the IRA, Fancy Bear also created fake profiles on

the platform and through the organization DCLeaks to distribute information obtained

illegally to journalists (Stretch, 2018). In the 2017 minority report from the US House of

Representatives Permanent Select Committee on Intelligence (authored by Democratic

Party members), with the results of an investigation into Facebook about disruption and

polarization in the 2016 election, IRA actions included the purchase of 3,393 political ads,

and creation of 470 Facebook pages that reached 126 million users (HSCI, 2017). On the

other social media platform “giant” where there is a dynamic political debate, Twitter,

between September first and November fifteen of 2016, more than 36,000 tweets about

the presidential election were generated by bots

linked to Russian accounts. These

tweets generated about 228 million interactions

. In addition, more than 130.000 tweets

were from accounts directly linked to IRA (HSCI, 2017).

Active measures implemented by Russia are not a recent phenomenon. The KGB was

responsible for authoring and disseminating false stories, as well as fraudulent letters,

targeting Presidents John Kennedy and Ronald Reagan, and the activist Martin Luther

King, Jr. (SSCI, 2019: 11). However, in the 2016 election, this type of action was refined

by the use of social media platforms, with a special focus on suppression the vote,

especially of the black community (SSCI, 2019: 39), promoting political narratives,

namely, to entice the followers of Senator Bernie Sanders (Timberg & Harris, 2018); and

targeting the coalition supporting the Secretary of State Clinton (Kim, 2018).

A bot is an autonomous program that interacts with digital systems and users.

Interactions include actions from users like retweets, replies, follows, inclusion of hashtags and tweet

expansion.

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Protecting democracy in the European Union from digital cyber-attacks

In the reports presented above, there is the concern on how to protect democratic

processes and electoral acts from active measures by intelligence agencies from hostile

countries. In the digital age, and in line with Thomas Jefferson edict that “eternal

vigilance is the price of freedom” (TJM, 2020), it`s the European Union's job not to

underestimate what happened in the United States and the United Kingdom. The Member

States of the European Union, together with the European Parliament and the European

Union Agency for Cibersecurity (ENISA), organized an exercise in 2019 to “test the EU’s

response and crisis plans for potential cybersecurity incidents affecting the EU elections”

(ENISA, 2019). This exercise aimed to increase cooperation between national authorities

in the areas of cybersecurity, data protection and cybercrime. In addition to working "on

the ground", ENISA also produces practical documents to ensure security in electoral

processes. For the European Commission, the objectives are to protect democratic

systems in Member States but also to safeguard European values (European Commission,

2020). There is a set of instruments that exist already with similar objectives, including

the Action Plan on disinformation

, the European Democracy Action Plan

, the European

cooperation network on elections

, the Compendium on Cyber Security of Election

Technology

, the EU Cybersecurity Act

, the Revised Directive on Security of Network

and Information Systems (NIS2)

, as well as instruments to combat hybrid threats

and

boost cybersecurity

However, there is a visible absence in the protection systems in the European Union, be

it through inaction, or due to a lack of communication to the citizens of the Union: what

is the ability to collect information and analyze threats to democratic processes by hostile

intelligence agencies? This applies both in elections whiten the Member States (if agreed

upon them), and those for the European Parliament. Presently, there is the EU

Intelligence and Situation Centre (INTCEN)

that has the mission of creating timely alerts

for menaces, and assessing threats in the areas of security, defense and

counterterrorism. This work is carried via the collection of information in collaboration

with the agencies in the Member States, military authorities, and diplomats (Estevens,

2020). The inclusion of INTCEN in a wider and more integrated defense strategy is

recommended, serving as an advanced system for signal detection, both from open

source, digital means or through human resources. The assignment of this mission would

be the responsibility of the European Commission: via a resolution with clear definitions

about information handling and sharing between agencies in Member States; types of

https://ec.europa.eu/info/publications/action-plan-disinformation-commission-contribution-european-

council-13-14-december-2018_en.

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https://ec.europa.eu/info/policies/justice-and-fundamental-rights/eu-citizenship/electoral-

rights/european-cooperation-network-elections_en.

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editors/kuberturve/cyber_security_of_election_technology.pdf.

https://digital-strategy.ec.europa.eu/en/policies/cybersecurity-act.

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systems-nis2.

https://ec.europa.eu/commission/presscorner/detail/en/IP_18_4123.

https://ec.europa.eu/commission/presscorner/detail/en/IP_17_3193.

https://eeas.europa.eu/sites/default/files/2021_-_01_-_02_-_eeas_2.0_orgchart.pdf.

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rapid responses development and application; relationship with legislators both in the

European Parliament and in the local governments; and with voters, when possible or

advisable. Naturally, actions from intelligence agencies in detecting threats and applying

countermeasures to defend electoral processes, sometimes, cannot be in the public

domain. There is a need to find a balance between protection of sources and processes,

and what threats can be shared with voters, so that they are informed and can make

political decisions without malicious external influences.

Another growing demand, by organizations such as the European Commission, the US

Senate Select Committee on Intelligence, and the Intelligence and Security Committee

of the UK Parliament, is that social media platforms change their policies for a greater

joint work with authorities, including intelligence agencies and legislative bodies. This

joint work must include a timely and comprehensive sharing of information, mainly of

malicious activities that exploit the digital architecture of the platforms, manipulation of

algorithms, and dissemination of content for subversion of electoral processes. The

Digital Services Act (DSA), proposed by the European Commission and accepted by the

European Parliament does address some of these needs. In the DSA, internet providers

of intermediary services need to produce transparency reports with information on

interaction with authorities, description of illegal content, time taken for removal of

content, actions taken and legal justifications (European Commission, 2020a). If bad

actors or active measures are detected, intelligence agencies must be able to act in a

precise and timely manner in collaboration with digital platforms for the application of

appropriate measures. This process must be coordinated by overseeing governmental

structures, and, if necessary, legislative bodies whenever there is a need for changes in

laws to resolve structural problems. Likewise, there should be a joint work with political

parties and/or candidates for governmental positions. Successful examples of such

collaboration have taken place in France and the United Kingdom. In France, the Agence

Nationale de la Sécurité des Systèmes d'Information, the agency responsible for

protecting government infrastructures from cyber-attacks, organized cybersecurity

information sessions for all political parties (although not everyone shown an interest in

participating) (Daniels, 2017). In the United Kingdom, it was the turn of the Britain’s

National Cyber Security Centre, part of GCHQ, to offer help in strengthening the

communication networks of political parties (Reuters, 2017).

Conclusions

A provocative question raised by Persily is “Can Democracy Survive the Internet?”

(Persily, 2017). Some authors warn of the naivete of thinking that the internet is way to

a utopia of debate, understanding and consensus, in a Madisonian perspective of

governance

. At the same time, even more powerful digital tools, like personal data

retrieving, big data, machine learning, algorithmic function, can open the space for

companies, that are for hire, to generate political advertising targeted at the individual

level, creating “digital bubbles”, “echo chambers” that leads to political polarization and

counterproductive political action.

Some of these warnings can be found in books written by Timothy Garth Ash, Rebecca MacKinnon, Cass

Sustein, Clay Shirky e Evgeny Morozov.

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2016 as a reference year

Ricardo Silvestre

The US Senate Select Committee on Intelligence warns that active measures, having the

Kremlin as an epicenter, and with an alleged direct connection to Vladimir Putin,

"represent the most recent expression of Moscow's longstanding desire to undermine the

U.S.-led liberal democratic order" (SSCI, 2019: 11). It is worrying that countries with

established democracies, sophisticated intelligence agencies, a free press and a vibrant

civil society, such as the United Kingdom and the United States, did not realized, or

ignored, the threats of the Russian Federation in disrupting the electoral processes of

2016. In the report of the Intelligence and Security Committee of Parliament, there is a

disturbing warning that the United Kingdom government was in a "state of denial" about

Russian influence, so as not to question the legitimacy of the executive associated with

the outcome of Brexit (Ellehuus & Ruy, 2020). That was not exclusive of Whitehall. In

the United States, President Trump spent part of his mandate denying, or minimizing,

Russia's actions in the 2016 elections, even clashing with American intelligence agencies

over whether Putin had authorized any of them. In fact, Trump would fire, in 2017, FBI

Director James Comey because of, in the President's words, “Russia issue”. This would

result in the appointment of Special Attorney Robert Mueller and the impeachment

process of the President (Balsamo, 2019). Still in the Parliament report, another

important observation was lack of definition inside the United Kingdom government on

what defense mechanisms to use against foreign active measures in democratic

processes. This made the assuming of responsibilities to look like a “hot potato” (ISCP,

2020: 5).

Russian agents will continue to test these active measures in western countries. In 2018,

on the eve of the midterm elections for the United States Senate and House of

Representatives, another criminal complaint against the IRA, in the person of Elena

Khusyaynova, was filed in the Eastern District of Virginia by a Federal Prosecutor, for

conspiring to interfere with the American political and electoral process in the 2018

elections (USDC, 2018). In the same year, the CIA assessed that Vladimir Putin was

"probably" responsible for another campaign to discredit Vice-President Joe Biden, then

candidate for President (and eventual winner) (Rogin, 2020). Similar actions were seen

in Europe, where in the period between 2017 and 2018, disinformation campaigns using

state media and social media by Russian-sponsored outlets happened in Italy,

Netherlands, Spain (the Catalan independence referendum), Czech Republic and Sweden

(Tennis, 2020).

If the motivations for Presidente Putin and the Kremlin seem obvious in the light of the

theories by Jervis and Mearsheimer, of trying to maximize an offensive posture by

meddling with democratic processes and elections in the west, the “price” to be paid does

not seem to be a deterrent. The Russia Federation is a (almost) a de facto pariah state

regarding relations with the west (exacerbated by military interventions in the “near

abroad”), hence, the threat of isolation is not operative. Similarly, sanctions due to

election interference and cyberattacks continue to focus on individuals and organizations

that are believed to relate to the center of power in Moscow (Turak & Macias, 2021).

However the Russian government will keep denying any responsibility, while giving

shelter to people and groups indicted, making them immune to persecution in the west.

In this way it will be difficult to inflict serious blows to these structures that promote

active measures.

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The Vice-President of the European Parliament, Rainer Wieland, said in 2019 that

“[c]yber-attacks are a recent but very real threat to the stability of the European Union

and its Member States. A cyber-attack on elections could dramatically undermine the

legitimacy of our institutions. The legitimacy of elections is based on the understanding

that we can trust in their results. This very trust has come under pressure from cyber-

attacks and other new types of election fraud in the Digital Age, and we must respond!”

(ENISA, 2019). One of the most important needs, is to detect, as soon as possible, who

is behind these attacks, how they started, how they are run, and the effects of these

active measures in democratic processes, because of the influences in the way societies

operate. Especially, adversarial intelligence agencies are known to be a “clear and

present danger”, as attested by open-source information. Agencies like GRU, FSB and

SRV will continue to test the western systems and countermeasures. It is advised that a

bloc of countries, with a centralized power at the European Parliament, like the European

Union, should use all the instruments available in this line of defense, including exploring

the potential of some of the already existing ones.

This work aimed to systematize some of the open-source information on digital active

measures, their modus operandi, and to give some countermeasures to fight these

threats. However, the battlefield is enlarging and becoming progressively dangerous.

Sectorial responses, like the ones seen in the European Union, the United States, the

United Kingdom, could be the entry points to a coordinated, multi-pronged, proportional

strategy to strengthen western liberal democracies, and inspiring ones around the world,

against these threats.

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OBSERVARE

Universidade Autónoma de Lisboa

e-ISSN: 1647-7251

Vol. 13, Nº. 1 (May-October 2022)

THE RESILIENCE OF THE COMMUNIST PARTY OF CHINA

LUIS CUNHA

luisfmcunha@gmail.com

PhD in International Relations, integrated researcher at Instituto do Oriente (ISCSP/University of

Lisbon, Portugal), and author of the following books on China's geopolitics: China: Cooperação e

Conflito na Questão de Taiwan (2010), A Hora do Dragão – Política Externa da China (2012),

China na Grande Guerra – A Conquista da Nova Identidade Internacional (2014) e China`s

Techno-Nationalism in the Global Era – Strategic Implications for Europe (2016). He has

published several articles in national and foreign journals on Asia-Pacific geopolitics.

Abstract

Upon reaching 100 years of activity, the Communist Party of China (CPC) highlights and

projects a unique model of political and social development. Taking as methodological

inspiration the proposal of Samuel P. Huntington for the study of the political phenomenon,

regarding the adaptability of the seat of power, this work focus on some of the variables that

justify the perpetuity of the CPC.

Culture and ideology drive an unparalleled evolutionary process in conventional systemic

frameworks, legitimized by an outfit with intrinsic Chinese characteristics. China's apparent

exceptionalism, based on a strong nationalist vision, is conveyed through a transformational

"new era." Western academic currents denote difficulty in framing this phenomenon with

global implications.

Keywords

Communist Party of China; Xi Jinping; Chinese dream; nationalism; centenary.

How to cite this article

Cunha, Luís (2022). The Resilience of the Communist Party of China. In Janus.net, e-journal

of international relations. Vol13, Nº. 1, May-October 2022. Consulted [online] on the date of

the last visit, https://doi.org/10.26619/1647-7251.13.1.3

Article received on May 10, 2021 and accepted for publication on September 9, 2021

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

Vol. 13, Nº. 1 (May-October 2022), pp. 36-50

The resilience of the Communist Party of China

Luís Cunha

THE RESILIENCE OF THE COMMUNIST PARTY OF CHINA

LUIS CUNHA

Introduction

Political scientist Samuel P. Huntington considers that the institutionalization of a political

system can be measured by the adaptability, autonomy and coherence of its

organizations and procedures.

That definition fits perfectly the centenary CPC, which has not only overcome the

countless adversities of its long trajectory, but now emerges, in the first quarter of the

21st century, apparently strengthened in its ideological development plan for China.

Openly assuming an autonomous project, differentiated from the models rooted in the

proposals of the liberal democracies of the West, CPC and its leadership highlight the

predicates of a singular civilizational and political culture, a carrier of presumed added

value – in the officially conveyed version – in relation to alien political systems, which

they consider fallible. Throughout its long history, the non-aligned CPC has systematically

tried to evade the "logic of dependency" aptly characterized by Bertrand Badie, in the

westernization of the political order in "imported states" (2000).

Some of these dominant traits in the history of CPC, and in the discourse of its leaders,

are worth reflecting on. This paper addresses some of the aspects that justify the survival

of the largest communist party in the world, its organizational institutionalization, and

intrinsic vulnerabilities. In the finale, we confront the main dissenting views – American

and Chinese – on the case study that the CPC embodies.

The Chinese route

An official document released by Xinhua news agency in June 2021 recalled that Western

academic theories have denoted great difficulty in framing and justifying the survival of

the CPC, and the meteoric rise of China in different dimensions of power.

The text would serve as an antechamber to the conclusions of the 6th plenary session of

the 19th CPC Central Committee and the "white papers" on the functioning of democracy

in China, as well as the CPC's position on the Hong Kong administration.

Article translated by Hugo Alves.

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Common to all documents is the reference to the originality of the path chosen by the

Communist Party for the development of China, emphasizing the civilizational acquis of

the country, the refusal to align in the model of liberal democracies of the West and the

role of the General Secretary as the "central core" of the Central Committee and the

whole Party, which now has as "ideology-guide" Xi Jinping's thought about "socialism

with Chinese characteristics in the new era".

In fact, we are before a type of revisionism with Chinese features. And, as Aron pointed

out, "the opposition between revisionist State and conservative is often misleading"

(2002: 142), but it is no less certain that the route chosen by the CPC, the Party-State,

claims the originality of its ascension project.

Assuming itself as a genuine and pragmatic party, closely linked to popular aspirations,

the CPC repeatedly repudiates what it considers to be the "chaos of Western-style

democracy", offering, in return, a "functioning democracy" based on theoretical

innovations, which highlight the adaptation of Marxism to the Chinese reality, in addition

to the thought of Deng Xiaoping, Jiang Zemin's triple representativeness theory, or Hu

Jintao's scientific theory of development.

At the academic level, these political theories are supported by attempts to build a model

of international relations appropriate to China's contemporary projection, of which

traditionalist currents of constructivist moral or relational realism are examples.

One of the major challenges in the study of China's foreign policy is the theorization of

the patterns and behaviors measured and their framework in the international relations.

Authors such as Zhao Tingyang, Yan Xuetong or Qin Yaking try to bridge this gap through

their works by seeking to integrate China into the world order.

It is in this context that we can frame Xi Jinping's "Chinese dream", which proposes an

inclusive and harmonious process for China's development and affirmation, but also a

multipolar order. It is a process of ideological and political renewal, using the rehabilitated

Confucianism and cultural traditionalism, mixed with the inescapable Marxism in the

Chinese version.

But it is the Leninist logic, attributing to the Party the indisputable authority legitimized

by democratic centralism, that consolidates and unites the trinity constituted by CPC-

State-People's Liberation Army (PLA). On the other hand, despite the Leninist costume,

the CPC strives to highlight the democratization of its processes within the limits imposed

by loyalty to the party. The "white paper", with the suggestive title "The Functioning

Democracy" (PRC Council of State: 2021), recalls that there are eight other parties in

the Chinese political system, but that they must all obey the CPC.

The partial opening of the CPC to democratic processes should not be read as ideological

liberalization, but as an attempt to refine and improve its functional and organic methods.

For Zheng Yongnian, this process, which he called "internal pluralism," integrates the

meritocracy inherited from the imperial era with elements of modern democracy

(2020:16). The construction of "socialism with Chinese characteristics in the new era",

has as main objective to strengthen the party itself. The CPC placed special emphasis on

the delicate selection and recruitment process for its staff, thus becoming an elitist

political organization.

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However, to overcome the exhaustion of the economic model adopted since China's

opening to the world in 1978, the CPC has revised its position, which now involves the

defense of an alternative model for globalization, the proposal for new complementary

international organizations and/or alternatives to the Bretton Woods system, and a

shared destiny for humanity. And although the CPC does not openly admit that the

"Chinese model" is exportable, it considers that "the experience and practice of the CPC

can offer good references to others" (People First: 2021). According to Xi Jinping's speech

marking the 95th anniversary of the CPC, what is at stake is not so much the "Chinese

model", but the "Chinese solution". Shortly thereafter, in his speech to the 19th CPC

Congress, Xi came very close to promoting a Chinese model of international relations,

noting that China's path "offers a new option for other countries and nations that want

to accelerate their development, while preserving their independence" (2017).

While the United States of America (USA) administrations of Trump and Biden accuse

China of being a "revisionist" power, committed to dismembering the international status

quo (see National Security Strategy: 2017; National Defense Strategy of the

United States: 2018), China stresses that it intends only to promote "more

democracy in international relations". On the other hand, the USA stance during the

Trump Administration, harassing allies and withdrawing from the Trans-Pacific

Partnership project, a measure that benefited China, was seen by some observers as

another strain of revisionism, no less pernicious than China’s".

The concept of "revisionism" lends itself to different interpretations, depending on the

"orders" to which it refers. For Alaistair Ian Johnston, who identifies eight international

"orders", China is markedly a "constitutive" power, that is, based on the conception of

sovereignty and territoriality and, not least, on the preservation of the CPC (2019: 9-

60). He considers that China interacts with the different "orders" in a different way. It

supports some, does not support others and supports others only partially.

Odd political laboratory

In his book The Party, Richard MacGregor called the survival of the CPC a "political

miracle" (2012: 33). If we consider that its founding inspiration, the Communist Party of

the Soviet Union (CPSU), was extinguished three decades ago, the assertion proves to

be valid. There are, however, other important variables in question. In the monolithic

Chinese political system, nothing is lost, and everything is transformed, by the work and

ingenuity of a party capable of remarkable adaptive capacity.

Over the course of a century, the CPC was able to overcome, with greater or lesser

degree of success, all its crises and internal contradictions, becoming the largest and

most powerful communist party in the world

. The CPC is responsible for the unparalleled

power projection in China's history, thanks to competent management of the geostrategic

and geoeconomics agenda. China, governed by an omnipresent Party-State, is an

unparalleled political laboratory.

In addition to the PRC, Cuba, North Korea, and Laos are the other officially communist States. Only the

Communist Party of North Korea surpasses the CPC in longevity.

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However, one of the many paradoxes of the CPC, perhaps the main one, is that it failed

to achieve communism when it completed its centenary. This apparent contradiction is

openly accepted in the Party Constitution, when it states that "the goal of the CPC is the

realization of communism" and that "the most important ideal of communism persecuted

by the Chinese Communists can only be realized when socialist society is fully developed

and highly advanced"

A goal that could be partially achieved in 2049, when celebrating the 100th anniversary

of the establishment of the People's Republic of China (PRC). In the CPC lexicon, this

milestone of the double centenary will mark the "rejuvenation of the Chinese nation"

In fact, the communist chimera will not be easily attainable, as the history of the second

half of the 20th century revealed with the implosion of the Soviet Union and its Communist

Party. Some scholars even argue that the Soviets never implemented communism, since

the USSR's party leaders would have opted for state capitalism (Resnick and Wolff, 2002:

324). Others, such as David Shambaugh, go further by vaticinating the collapse of the

CPC in the medium term. For that American sinologist, the CPC will be fatally

contaminated with systemic weaknesses that could lead to a violent end of the regime

(2015).

It will now be up to the CPC and its 91 million militants to prove definitively that the

communist ideal, recalibrated with "Chinese characteristics", can turn utopia into reality.

The Soviet nightmare would be compounded by Xi Jinping's "Chinese dream".

Although the CPC does not hide the trauma caused by the disappearance of its Soviet

counterpart, doing so that history does not repeat itself tragically, Leninist costumes and

state capitalism remain as some of the main pillars of the Party. The CPC, "the most

enduring asset of Soviet Russia in Foreign Policy" (Chang and Halliday, 2005: 39), or the

"most successful Leninist Party in History" (Zheng, 2020: 1), calls itself the task of

triumphing in the techno nationalist confrontation with the West.

A Party of Variable Geometry

The CPC divides its centenary route into three periods: from its foundation in Shanghai

(1921), to the proclamation of the PRC (1949); from that year until the opening to the

world and the beginning of reforms (1978); and since the coming to power of the current

leader, Xi Jinping (2012).

In the official version, the CPC

was founded in July 1921 by a dozen activists, following

the failure suffered by China at the Peace conference in Versailles after World War I,

Constitution of the Communist Party of China, Revised and adopted at the 19th National Congress of the

Communist Party of China on October 24, 2017, p. 1. According to the official Chinese speech, China "will

continue for a long time in the primary phase of socialism." At the 16th CPC Congress, in 2002, this period

had been established in "more than 100 years". See: Documents of the 16Th National Congress of the

Communist Party of China, Foreign Languages Press, 2002, pp. 78-79.

The two centenaries established by the CPC aim to build a moderately prosperous society on the centenary

of the Party (2021) and a modern socialist society when the CPC celebrates its centenary (2049).

Note the semantic differentiation: in December 1920 the French Communist Party was founded and in March

1921 the Portuguese Communist Party; the CPC, founded in July 1921, adopted the designation of

Communist Party from China (our italics). According to the authors of a biography of Mao Tse-Tung, the

CPC was founded in 1920 and Mao would not be among the founders. See Chang, J., Halliday, J. (2005).

Mao, The Unknown History. Lisbon: Bertrand.

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which saw the great powers sanction the Japanese occupation of the Chinese province of

Shandong, and the nationalist-inspired student demonstrations that followed it, in what

became known as the "May 4th movement" (1919).

The Chinese Communists, who were not familiar with Marxism, whose economic theory

did not coerce with Chinese reality, still saw in that doctrine imported from the Bolshevik

Revolution, an ideological primer ready to use in the fight against Western imperialism

(Dreyer, 1996: 64-65).

By adapting Marxism to the situation in China, the founders of the CPC opted for

ideological flexibility with Chinese characteristics that would remain to this day. It would

be Mao Tse-Tung to warn of the need for the Chinese Communists to "sinolization of

Marxism". To this extent, "socialism with Chinese characteristics for a new era", the

theory of Xi Jinping consecrated by the CPC at its 19th Congress, is seen as the latest

progress in the adaptation of Marxism to the Chinese context.

During the first 28 years of existence, the CPC was forced to obey Stalin's dictates and

fight the Kuomintang Party, its political archrival, led by Chiang Kai-Chek. Revealing the

remarkable political agility that would characterize him in the following decades, Mao

would even join the Kuomintang, by Stalin’s indication.

The expedition to the North, with the CPC still allied with the Kuomintang (1924-27), the

Agrarian Revolutionary War (1927-37), the War of Resistance Against Japan (1927-37)

and the Civil War, or "Liberation War" (1946-49), were the main historical landmarks of

this period. Mao followed in Lenin's footsteps, jumping from Marxist theory to action,

only by inverting the sequence.

With the proclamation of the PRC on October 1, 1949, the CPC would assume the reins

of power under a political-institutional monopoly. Mao’s victory would surprise Truman

and Stalin (Gaddis, 2021: 47). The Chinese communist dynasty and the Party-State were

born, in an organic and functional interdependence of Leninist inspiration. For the first

time in centuries, China was moving to union under one flag.

It ended a troubled period, marked by more than forty changes of the central government

since the establishment of the republic in 1912. However, internal pacification was not

assured. Externally, Mao would risk the existence of the State he had just created. Just

over a year after the proclamation of the PRC, the Chinese army was fighting the

Americans in Korea.

The first major step towards China's identity emancipation would be the sending of

140.000 workers to the stages of WWI in Europe. In the aftermath of the conflict, the

"May 4th Movement" would serve as an embryo to the founding of the CPC.

On the other hand, without fighting the Japanese in WWII, the CPC would not have been

able to achieve power, as Mao himself would have admitted. The rise and consolidation

of the CPC's power is based on historical facts associated with the two world wars. Since

then, the Chinese have cultivated a harnessed anti-Western nationalism.

The Party-State

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The CPC began by adapting the Soviet-inspired Leninist costume to Chinese reality.

Democratic centralism – the subordination of the individual to the organization and its

leaders – began to govern the functioning of the party machine. Like the CPSU, the

Chinese counterpart established at its summit the governing bodies, namely the Central

Committee (elected every five years by the Party Congress), responsible for selecting the

Politburo (25 members).

In turn, the Politburo elects its Standing Committee, the hard core of policy makers, the

current seven men (not including women; 70% of the Party members are men) who

define China’s path. The powerful nomenklatura, in Soviet terminology. The primus inter

pares is the General Secretary, who also assumes the position of President of the Republic

and president of the Central Military Commission. The Secretariat has the task of

implementing the decisions of the Politburo and its Standing Committee.

However, some characteristics of the CPC differ from the Soviet system. First, the Party's

ability to penetrate the social, economic, and military fabric. The CPC is present in every

corner of society, forcing unconditional loyalty. The military owes constitutional

obedience to the Party as well as the judicial system. The same applies to the public

sector of the economy, which includes some of the best-known companies internationally,

the so-called "industry champions". This is how Xi Jinping's "thought... reflects the

common will of the whole Party, all the Armed Forces and the people of all ethnic groups"

(Announcement of the 6th Plenary Session of the 19th Central Committee of the CPC).

Constitutionally, the Soviet government and the CPSU were separate bodies, although

reality belied this artificialism. In China, the Party has always made it clear that it would

be solely responsible for controlling the whole of society. Consequently, the close

interconnection between Party and State is indistinguishable. In the official language "it

is necessary to ensure that the leadership of the Party and the State remains in the hands

of those who are loyal to Marxism, the Party and the people" (China: Democracy That

Works: 8).

When world leaders meet with President Xi Jinping, in his capacity to hold an eminently

ceremonial office in accordance with the constitution of the PRC, they have before them

the powerful General Secretary of the CPC.

By resetting legal formalities, since it is not registered as an organization, the Party

legitimizes its ubiquitous influence in the conquest of power following Civil War, on

economic and social development since China's openness to the world, in its nationalist

view and on the spiritual purity derived from dogmatic partisan principles, assisted by a

culturalist vision rooted in Confucian philosophy – a social code that has regulated

Chinese society for thousands of years. A social contract that the Chinese subscribe to,

if opportunities for prosperity and wealth are not called into question.

The deployment

Mao Tse-Tung, the supreme leader of the CPC until his death in 1976, had no urgency in

reorganizing the Party after the founding of the PRC. The first five-year plan was only

approved in 1953 and the first CPC congress only took place in 1956 (until 1977 none

completed the five-year term). In turn, the National People's Congress (NPC), founded

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in 1954, did not meet between 1966 and 1974 (Dreyer, 1996: 90-91). Also, in 1954 the

first Constitution of the PRC was approved.

Mao would prove to be paradoxically the most troubled leader of the CPC. In the Great

Leap Forward (1958-1962), he was responsible for 36 to 45 million deaths (Yang, 2008:

2; Dikötter, 2011: 1). By promoting the forced transition from an underdeveloped

economy to a utopian modern communist society, Mao brought China's social and

economic system to the brink of collapse.

Still poorly redone from the catastrophe of Maoist experimentalism, the Chinese people

were forced to immerse themselves in the Cultural Revolution (1962-1976), which would

prove to be another black page of the CPC and its leader, committed to stirring the

masses through constant revolutionary unrest. Seeing himself as the rightful heir to

Marxism-Leninism, Mao once again wanted to accelerate the transition from socialism to

communism, thereby guaranteeing his historical legacy. The purges and political

persecution within the CPC, as well as physical and psychological torture and exile, would

become commonplace. The Party was virtually paralyzed. Five million militants would be

punished (Dikotter, 2017: 10). The students, mobilized for revolutionary combat, would

eventually be the main victims of the Cultural Revolution. Xi Jinping would be one of

them. Teaching in China would delay a decade.

The adoption of collective leadership and the abolition of the cult of personality and

"Mao's thought" as an ideological guide had been enshrined in the 8th CPC Congress, but

in the following 12 years Mao was able to reverse these principles. At the 9th Congress

(1969), led by a politically resurrected Mao, the Cultural Revolution was officially declared

"a great success" (Li, 1994: 508). It was in that year that he came to consider the Soviet

Union, not the USA, the greatest threat to China's security.

The rapprochement with the USA would be the greatest success of the final phase of

Mao's political career. A maneuver exquisitely executed by the master of tactics that was

Chu Enlai, the Prime Minister.

Historical rectification

The death of Mao Tse-Tung and the consequent assumption of power by the formerly

ostracized Deng Xiaoping opened a chapter of paramount importance in the evolution of

the CPC, which carried out an unprecedented exercise of self-criticism, to rectify the

delicate Maoist legacy.

The important Resolution on the History of the CPC, adopted at the 6th plenary session

of the 11th Central Committee of the Party (1981), reviewed the "arbitrary" performance

of Mao Tse-Tung and his "theoretical and practical errors". Particular attention was paid

to the period of the Cultural Revolution, which "did not conform either to Marxism-

Leninism, nor to the Chinese reality". Although the CPC considered Mao to be the main

responsible for the social catastrophe triggered by the Cultural Revolution, by "confusing

the people with the enemy", the resolution made it clear that the scientific value of "Mao's

thought" remained valid as the ideological beacon of the Party.

By openly exposing the wounds opened by a leader "divorced from reality and the

masses", the CPC intended to initiate a process of internal regeneration, while at the

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same time validating Deng Xiaoping's reformist project. But China's openness to the

world, which began in 1978, and the resulting economic development, entailed existential

risks to the CPC that would prove dramatically.

Tiananmen

The CPC would not produce a document like the 1981 self-critical resolution on the

failures of the Cultural Revolution. The causes and effects of Tiananmen events in 1989

would be obliterated from official historiography. The official documentation of the CPC

is silent on the hectic period, which could have overthrown the Ruling Party, although

this was not the goal of the protesting students (Zhao, 2009: 79).

All authoritarian regimes depend to a greater or lesser extent on repression and Deng

Xiaoping, more Leninist than Maoist, did not hesitate to avail himself of "disciplinary

power" in Foucault's meaning. However, by resorting to the use of force to stop the CPC's

internal bleeding caused by students’ demonstrations, the legacy of Deng Xiaoping, the

great statesman responsible for China's modernization, would be irreparably tarnished.

On the other hand, Gorbatchev, the controversial leader responsible for the implosion of

the Soviet Union, would be awarded the Nobel Peace Prize.

A decade earlier, Deng had even vented the possibility of a separation between the Party

and State, a reform never realized, provided that the impossibility of political

liberalization was maintained as an unbreakable rule in the light of the tripartite model

of separation of powers adopted in the West. This red line would be maintained and

reinforced by subsequent CPC leaders.

The Civilizational Party of China

A centuries-old communist party, in power under a monopoly and ruling for as long as

the SUCP ruled the former Soviet Union, is obliged to take care of its legitimacy in a

permanent way.

One of the keys to understanding the CPC's perpetuity will be Bertrand Russel's judicious

observation, when he concluded that "China is not so much a political entity, but a

civilization" (1993: 208). That is, the principle of national unity is firmed in the

valorization of civilizational heritage. This results in a sense of moral superiority vis-à-vis

the West that the CPC cultivates on a recurring basis. To this extent, more than an

interpreter of the history of China, the CPC is a central actor in this story. Its legitimacy

privileges the historicist perspective over the ideological one.

It is this culturalist thesis, based on Chinese exceptionalism, that legitimizes the

originality of the political system, transforming the CPC into the exclusive representative

and guardian of a certain historical truth. The virtue of Confucian inspiration was shaped

by socialist values, resulting in "Chinese characteristics".

For Zhang Wewei, it is the "civilizational state", led and interpreted by the CPC, that

allowed the "greatest economic and social revolution of humanity" (2012:2). The Chinese

scholar recalls that China has successfully merged the longest-off civilization with a

modern state. A unit forged in history and habit, superior to any form of government.

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Another reading finds justification in Chinese society's aversion to chaos, so often

experienced in its history. In fact, the official discourse does not miss an opportunity to

emphasize the unifying role of the CPC, a true dynamo of a country formed by 56 ethnic

groups. As historian Niall Ferguson recalls, if China were organized like Europe, it would

have to be divided into 90 nation-States (2012: 10).

Institutionalization

Non-Western societies struggle between the logics of adaptation and innovation (Badie,

2000: 2). Chinese society is no exception. Throughout a century, the CPC has succeeded

in mitigating the contradictory forces of the political system it has implemented.

And although the CPC has regained imperial logic in its modus operandi and in China's

positioning as an international actor, the institutionalization of transition processes in the

ruling elite has allowed the 5th generation to achieve an unprecedented global power.

The CPC is not only shaped in the state machine, but also controls it in all dimensions,

becoming a " Party-State without complexes" (Rios, 2021: 304). This oversight has been

intensified through the organic reforms implemented by Xi Jinping in the judicial, military,

and legislative spheres, at an unprecedented rate, which create a new impetus to China's

political and economic trajectory. Xi's leadership has embarked on a process of

institutional transformation that aims to reverse many of the changes consolidated by

the relative liberalization of recent decades (Economy, 2018: 5; Bowring, 2021:239).

For Huntington, "the probability of a 100-year-old organization surviving another year is,

perhaps, 100 times greater than the probability that an organization with one year will

survive another year" (1968: 13-14). Maybe that is why the official documents say that

"the 100-year-old CPC, which fights for the lasting prosperity of the Chinese nation, is in

the prime of age" (Announcement of the 6th Plenary Session of the 19th Central

Committee of the CPC).

The core of the CPC

Xi Jinping is a transformational leader, only comparable to Mao and Deng, charismatic

leaders. He is imbued with a historical ineffability as to the mission of transforming China

into the most powerful of nations. But Xi is not charismatic, but rational in the Weberian

sense. He keeps the Party away from liberalization, firmly rejecting the division of powers

and parliamentarism and does not hesitate to resort to the repressive instruments of the

State. He is a strong leader with a well-defined political project. He drew the red lines

when, in the spring of 2013, an internal memo from the CPC (document no. 9) outlined

the main existential threats of the Party, including western-matrix constitutional

democracy and neoliberalism (Bougon, 2018: 153-158).

When he took the 5th generation leadership to achieve power in China in 2012, Financial

Times reported the possibility of Xi being "sympathetic to the demands for a more liberal

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political system"

. Not only did this prediction prove erroneous, but Xi would reveal a

style of strong one-person leadership, while neutralizing collective governance – which

never fully worked – and the ban on the cult of personality advocated by the CPC since

Deng Xiaoping.

Xi's first consecration took place at the 19th CPC Congress in 2017. In five years, he

managed to consolidate his power and inscribe his doctrine in the CPC Constitution,

placing himself alongside Mao and Deng in the pantheon of immortal leaders.

It was a measure of great political significance, since Deng Xiaoping’s name was only

inscribed in the CPC Constitution after his death, and Jiang Zemin only managed to get

his "theory of triple representativeness" (translated into the co-optation of the party's

business) to be recognized after he left power. In turn, Hu Jintao's "theory of scientific

development" was inscribed in the Constitution after his first term, but only elevated to

"guide to action" after he left office.

More recently, the Party has come to mark a clear dividing line between the period of

reforms set by Deng and a "new era" of 30 years, which began in 2020. In the first 15

years, until 2035, Xi wants to see the foundations of a "moderately prosperous" society

consolidated and in the second stage of 15 years, until 2045, the modernization of the

"socialist society" mut be consolidated.

Much of Xi's meteoric rise was justified by the internal cleansing campaign to fight

corruption, which has hit thousands of members of the Party and Armed Forces, including

prominent leaders. At issue will be a real "ethical revolution" designed to sustain the

legitimacy of the Party (Zhang and McGhee, 2017). It is undeniable, however, the

remarkable capacity for party and national mobilization of Xi, which goes far beyond the

internal purges within the Party. By appealing to nationalist sentiments, Xi invokes and

enshrines his emotional legitimacy.

Since the beginning of this century, China has been exploring the strategic opportunities

evidenced at the 16th CPC Congress, but it is at Xi Jinping's consulate that China shows

all its power and assertiveness. Xi's official narrative has definitively eliminated the

understated strategy for China's foreign statement recommended by Deng Xiaoping.

China, which may rise to the status of the world's greatest economic power soon, is now

"approaching the center of the stage” and is already "a leader in terms of national

strength and international influence" (Xi, 2019: 9-25). It also wants to build powerful

armed forces, "capable of winning wars", already possessing the largest war navy in the

world, in addition to having put in place an ambitious nuclear rearmament plan and have

advanced disruptive technologies, namely hypersonic missiles, electromagnetic pulse

weapons and cyberweapons. As Aron pointed out, "States can be prophetic, but they are

always armed" (2002: 131).

Anderlini, Jamil, "The leAdeRship: focus on the next generation as transition gets under way," Financial

Times, October 26, 2011. [Online] Consulted on 23.11.2021. Available in:

https://www.ft.com/content/ec0d167e-f8c3-11e0-ad8f-00144feab49a.

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Conclusions

The CPC did not win the utopia but overtook it. Throughout its history, the CPC has

learned to live with numerous paradoxes and contradictions. It has become a hybrid

centrifuge machine, capable of absorbing, regenerating, and returning to society the

different political and economic approaches. It combines authoritarianism with

pragmatism. It is a resilient organization, currently run by a resilient leader.

China did not invent Marxism-Leninism, nationalism, or capitalism. However, the CPC

has proved to be an expert cultivator of these seemingly antagonistic currents. But it is

primarily to nationalism, and the "imagined political community", that the CPC will

redeem its legitimacy.

A legitimacy that China wants to see transposed to the international scene, where, more

than taking a central role, wants to see validated its proposal for a new development-

focused order, of which the proposed One Belt and Road Initiative (BRI) is an example,

resulting in clear geopolitical and geoeconomics implications. This is an unprecedented

global vision. It is in this context that the scholar Zhang Weiwei, author of The China

Wave: Rise of a Civilizational State, integrates a Chinese intellectual chain that, in

addition to rejecting any emulation with Western political models, considers that the time

has come for China to influence the world.

On the other hand, stability and the quality of governance are credits that some Western

circles have difficulty recognizing to Chinese leaders. The external indicators of economic

development are extraordinary and the strategic combination of soft power with hard

power (within the meaning of "smart power" of Nye) too, but it is the fact that the CPC

has managed to lift 800 million Chinese out of poverty, 10 years ahead of schedule for

the first of the United Nations Sustainable Development Goals (SDGs), which impresses

by the scale and socio-economic implications.

In the constitutions of the Republic and the CPC, we find the obligatory communist lexicon

referring to a popular democratic dictatorship, democratic centralism, and the struggle

for the working class. In fact, the "proletariat" has given way to businessmen co-opted

by the Party at the time of Jiang Zemin, and the "class struggle" is now reduced to the

contradiction evidenced in the social inequality caused by rampant economic

development. A structural fragility that the CPC openly admits in its official documents.

Over a century, the CPC has succeeded in achieving one of the main objectives that it

has presided over: the transformation of China into a strong and independent country.

The CPC has led China to a level never reached in its long history, finally enjoying power

and prestige in the notion that Morgenthau attributed to it (1985: 714).

And if some deep connoisseurs of Chinese reality, such as Susan Shirk (2007) or David

Shambaugh (2008; 2015) support the thesis of the irreversible decline of the CPC in the

medium term, listing known systemic weaknesses, the institutional reforms implemented

by Xi Jinping, covering the functioning of the CPC and the Armed Forces, have been

modernizing and strengthening the PLA-State-relationship. In fact, Xi has operated to

rationalize the institutional architecture of the CPC; the fundamental point is the

necessary – and required – accommodation and loyalty of all social actors to the

hegemonic dynamics of the party. Nor is it believable that the relative neutralization of

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Luís Cunha

collective leadership – which has never fully worked – will have counterproductive

consequences in the new institutional organic implemented in Xi's governance.

The available indicators show that the CPC enjoys a high degree of popularity, while the

party elite maintains the necessary cohesion. These are crucial factors for the

perpetuation of the necessary legitimacy and foresees that the place of strategic power

in the Chinese political system – the CPC – will not be threatened soon. The great

challenge of the CPC's top leader will be to operate the transition between

authoritarianism and technological innovation.

China, with an autocratic regime led by the resilient CPC, will not intend to export its

Marxist-Leninist-Maoist and now Xiist ideology. Rather, it demands the legitimacy of a

model unrelated to the concept of universalism pervading the political order of the West.

Moreover, Huntington too would draw timely attention to the fact that the West is unique,

but not universal (1996).

China's new assertive and self-confident stance, nullifying the theory of "peaceful

ascension," has led to a reactive policy by Washington, USA, major European capital-

cities and even NATO, which considers China "a full-spectrum systemic rival," (NATO,

2020:27)." For the European Union, for example, China is now "a systemic adversary

promoting alternative models of governance" (2019), but is also "a partner, a competitor

and a rival" (Borell, 2021). On the other hand, the chemical crisis served as a catalyst

for geopolitical clarification in the relationship between the main western powers and

China. In fact, the CPC has managed to win unprecedented power in China's history, but

as Kissinger warned, "the question is whether it is possible to create an international

system with China as a participant without it dominating the system (2011: 43)".

For more than a century the world has been torn between the views of Lenin and

Woodrow Wilson in a perennial ideological divide. It will be the quality of governance and

the battle for technological leadership to decide whether there will be winners or just

losers in the dispute between major powers. It will be seen whether China will look more

like the world, or the world like China.

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OBSERVARE

Universidade Autónoma de Lisboa

e-ISSN: 1647-7251

Vol. 13, Nº. 1 (May-October 2022)

LIBERTÉ, EGALITÉ ET LAÏCITÉ: THE USE OF HIJAB IN PUBLIC SCHOOLS AS A

THREAT TO THE FRENCH REPUBLICAN ONTOLOGY (1989-2004)

BRUNO PEDROSA

bruno.cspedrosa@gmail.com

Master’s student in International Security and Defense at the Brazilian War College (ESG, Brazil)

specializing in BRICS’ common identity formation. He holds a Bachelor’s degree in International

Relations from the Fluminense Federal University (UFF) focusing on Eurasian

geopolitical dynamics. He writes for an independent think tank Quo Vademus. He is an external

collaborator to the Nucleus of Studies on BRICS (NEBRICS) and a fellow researcher in the Group

of Studies on BRICS (GEBRICS).

Abstract

This paper analyzes the perception construction of the hijab use in public schools as an

ontological threat to France. Considering laïcité as one of the pillars for French society and

identity and the school as the basis of the construction of this narrative, the use of the hijab

could be considered as a threat to religious neutrality in the public spheres, injuring the basic

principles of the Republic. This situation led to the approval of a law banning the use of all

kind of apparent religious garments in primary school across France, despite religious freedom

being a fundamental right in the country. As a methodology, it conducts a discourse analysis

of the statements and opinions of French leaders and institutions of the executive and judicial

branches in relation to the use of clothing in relation to the principle of laïcité and freedom of

worship in France between 1989 and 2004.

Keywords

Ontological Security; Laïcité; Islam; Religious Freedom; France.

How to cite this article

Pedrosa, Bruno (2022). Liberté, Egalité et Laïcité: the use of hijab in public schools as a threat

to the french republican ontology (1989-2004). In Janus.net, e-journal of international

relations. Vol13, Nº. 1, May-October 2022. Consulted [online] on the date of the last visit,

https://doi.org/10.26619/1647-7251.13.1.4

Article received on September 23, 2021 and accepted for publication on March 16, 2022

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Liberté, egalité et laïcité: the use of hijab in public schools as a threat to the French republican ontology

(1989-2004)

Bruno Pedrosa

LIBERTÉ, EGALITÉ ET LAÏCITÉ:

THE USE OF HIJAB IN PUBLIC SCHOOLS AS A THREAT TO THE

FRENCH REPUBLICAN ONTOLOGY (1989-2004)

BRUNO PEDROSA

Introduction

Terrorist attacks have been treated as a security issue in France since the 1980s.

However, since the 9/11 event, such threats have been correlated with Islamic

extremism, both by the media and by the French government (France, 2006). These

concerns about the French State’s security and its citizens regarding the Muslim

community in the country permeated social layers and brought to debates issues on

identity and private life.

It is known these speeches addressed by the state and the media have increased the

stigma towards Muslims in France. Stéphane Bauzon (2017: 190) states that "the

terrorist attacks carried out by Islamists on French territory in recent years have only

reinforced this mistrust towards the Muslim religion". Moreover, one can also say that

there was a development of a type of distrust not only regarding the religion, but towards

representations and symbols of it, being the use of the hijab as the greatest example of

this phenomenon.

However, despite being one of the countries from which ideals such as tolerance and

religious freedom spread to the rest of the world, the country's government approved in

2004 a law prohibiting the use of the hijab by Muslim girls in primary public schools. This

measure was approved by the justification of "reaffirming the republican symbol of

laïcité

promoting the equality and emancipation of Muslim women" (Bauzon, 2017:

186) In addition, the French educational system aims to increase the country's internal

cohesion by marginalizing "regional and religious allegiances" (Windle, 2004: 97) . Also,

according to Windle (2004: 97), concerning the French public school system, "a 'free,

secular, and compulsory' national educational system is one of the key guarantors of

Although the term can be translated directly into "secularity" or "secularism", I opted for the original use of

the symbolic and cultural charge that is brought, which does not occur when there is translation. This

justification for the non-option of translation applies to all other terms in foreign language in this work.

According to the French government itself, laïcité is a value that guarantees "freedom of conscience".

Therefore, it allows "the freedom to manifest their beliefs or convictions within the limits of respect for

public order." It is concluded that “laïcité implies the neutrality of the State and imposes the equality of

all before the law without distinction of religion or conviction" (France, [s.d.]).

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Bruno Pedrosa

republican values [...]". Thus, wearing the hijab could "symbolize [...] a threat to the

very conditions of the existence of the Republic" (Windle, 2004: 97).

Despite Windle's (2004) statements, it can be seen that explanations about the use of

the state apparatus to deal with the Islamic issue at schools have been insufficient. This

is shown by the concentration of studies in state security having the State as the main

study object (Gregory, 2003) and negligence of the ontological issue of security seen

through French society’s lens. Other thinkers try to understand the effect of these

religious symbols using other interpretations. Whether by the media, by gender studies

or by social issues such as integration and immigration (Carle, 2004). However, these

works fail to fully explain the origins of the motivations of French policies to avoid the

use of the hijab in the country's public schools, although they are sometimes interpreted

as inconsistent with the French values of freedom and equality themselves.

According to Resende (2017: 90),when she talks about the effects of the 9/11 attacks

on American society, she say this event produced a trauma in the collective imaginary of

that nation provoking "questions of the dominant discourses about America and about

Americans". Then, in the face of this identity crisis, the thinker states that, in order to

overcome trauma and restore social order, "the articulation of a new dominant discourse

capable of recommence is the framework of intelligibility of reality broken in 2001"

(Resende, 2017: 90). Likewise, the use of the hijab by girls in French public schools has

generated a crisis in the dominant narratives about the identity of the country, role of

school and the founding principles of the present-day French Republic, such as freedom

and secularism.

Given the explanatory insufficiency offered by the dominant literature, this work aims to

offer a perspective of the problem through the ontological security lens. Based on the

security perspectives’ expansion, and the studies on identities as objects to be securitized

by the State (Mitzen, 2006; Steele, 2008; Subotić, 2016; Resende, 2017), this text

focuses on answering the following question: how can the use of hijab in primary schools

be considered as an existential threat to France? Through this approach, this article’s

main argument finds itself at the following statement: Muslim religious manifestations

can be constructed as supposed threats to French national security, even if this process

is against French Republic’s founding values.

With the objective of analyzing the impact of this garment on the French identity

imaginary, one can see that discourse analysis makes it possible to understand the

discursive practices and narratives that shape perceptions of reality (Hansen, 2013).

Another possibility offered by this method is that it "not only to explicate the content of

a state’s biographical narratives, but also to reveal how a discourse’s effects constitute

certain types of action" (Steele, 2008: 10–11). In addition, the analysis of speech acts

by authorities are both a source and a methodological practice for this work .

The choice of temporal scope is justified by the following situations: in 1989, an episode

occurred that became known, in French known as affaire des foulards islamiques

rekindled the public debate about the limits of secularism within French society, notedly

Translated as the "case of Islamic veils", this event occurred when three girls of school age and of Maghreb

origin were expelled from the school where they studied for insisting on the wearing of the hijab in the

classrooms.

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within schools. In 2004, one can consider as the apex of this discussion when there was

a prohibition, by law, of the use, not only of the hijab, but as of other apparent religious

garments in public schools. Thus, this work will be divided into four parts. The first takes

place in the understanding of ontological security as a theoretical approach to understand

the securitization of identity as a political practice. The second part is dedicated to

understanding the space of laïcité in the French imaginary as part of its identity. The

third part will have the objective of analyzing the phenomenon’s unfolding through the

approval of the ban on the use of hijab in French schools in 2004. The last part is intended

for the final conclusions on the issue.

Ontological security: what is it and why is it important?

Benedict Anderson (2006: 6) states that "communities are distinguished not by their

falsehood/authenticity, but by the style they are imagined." These imaginations are

based on symbols and narratives that offer "a sense of space and a sense of place"

(Subotić, 2016: 612) for individuals belonging to these same communities. It can be

said, then, that narratives "play a critical role in the construction of political behavior

[...]. We create and use narratives to interpret and understand the political realities in

our surroundings" (Patterson and Monroe, 1998: 321).

Thus, Subotic (2016: 612) says that these narratives serve as autobiographies. Used by

both individuals and larger groups, these autobiographies function as an ontological

reference of those who reproduce it. By creating a story about "where did ‘we’ come

from, how we did come to be who we are, what bring us together in a group, what

purpose and aspirations does our group have," communities can create an ontological

anchor that gives them "a sense of stability and allows us to move forward." According

to Steele (2007: 904),"state agents give meaning to their actions to others through this

narrative [...]". Thus, Subotic (2016: 612) concludes by stating that one cannot

understand the behaviors of political actors without "understand what is the normative

narrative underpinning of the policy choices actors make [...]". Therefore, they are

narratives that enable the ordering of a sense of "who I am", which enables the

construction of rational calculations as a "precondition for knowing what to do" (Somers,

1994: 618).

However, when this narrative and the identity that comes from it suffers a crisis, the

state tends to take certain measures to resume the previous balance. According to Steele

(2008b: 2) in this scenario, "states seek social actions to serve their self-identity needs,

even when these actions compromise their physical existences". Thus, the author even

states that ontological safety is more important than physical security. This is due to

state's willingness to keep "self-concepts consistent, and the Self of states is constituted

and maintained through narrative [...]" (Steele, 2008: 3).

However, what is ontological security? According to Mitzen (2006: 342), she refers it as

"the need to experience oneself as a whole, continuous person in time – as being rather

than constantly changing – in order to realize a sense of agency”. Thus, feeling

ontologically secure means being safe about one's own identities.

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Also, according to Mitzen (2006: 345), ontological security becomes important because,

through this perspective, identity is the basis of the actors' agency. According to her,

when the individual is in an ontological insecurity situation, it "cannot relate ends

systematically relate to means in the present, much less plan ahead". For these moments

of "profound ontological crises" (Subotić, 2016: 614), is called trauma. Trauma, in turn,

occurs when "external events cannot be neatly placed into the ontological security

narrative because they represent a challenge to the state internal or external identity"

(Subotić, 2016: 614).

In the face of these ontological crises, the narratives present in the imaginaries of the

communities are activated in order to give a strategic basis for political actions (Subotić,

2016). According to Subotić, the use of these discourses by political leaders serves to

create cognitive bridges between political action and the restoration of autobiography so

that its continuity is maintained. "Narratives provide intersubjective meaning to policy

change. They make political change comprehensible and acceptable" (Subotić, 2016:

616).

Laïcité as France’s Ontological Pillar

As part of the narrative of what it is to be French, laïcité is one of the most important

aspects of the Republic’s ontology. It is part of the national myths and symbols that "are

receptacles that allow people to project onto them their idealized images of their values,

cultures, histories, peoples and lands. In France, a particular understanding of laïcité is

linked to a sense of identity" (Gunn, 2004: 429). However, to better understand the

importance given to this concept in the French imaginary, it is worth making a brief

historical recap of its construction.

According to Gunn (2004), there were two historical periods in France that were essential

for the development of this concept as part of the country's autobiographical narrative:

the Revolution of 1789 and the Period of the Third Republic (TR) which lasted from 1870

to 1940. The most important point the author wants to discuss is that the construction

of laïcité "did not embody the high principles of tolerance, neutrality, and equality; rather

it emerged from periods of conflict and hostility, most of which targeted the Roman

Catholic Church" (Gunn, 2004: 433).

In the French Revolution period, a main point of the revolutionaries’ criticism was the

influence that the Catholic Church had on the state’s public affairs. The objectives of the

most radical (the Jacobins) were a total separation between the State and the Church

and the dechristianization of French society. "[...] the French revolutionary spirit of

citizenship is understood as freedom of religion" (Carle, 2004: 66). Despite later, it was

turning against Protestants and Jews, the Catholic Church was the main target hit by the

revolution having its assets confiscated by the state and its leaders were impeached and

hunted. Gunn (2004: 438) says there was a "demand that citizens choose between their

religions and the state". Then, according to Carle (2004: 66), "one of the most valued

legacies of the Revolution is the secular state and institutional structure of the public,

secular education implemented by Jules Ferry under the Third Republic [...]".

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During the Third Republic, after having gone through several political changes, the

Revolution’s extremism had already disappeared. Nonetheless, according to Gunn

(2004), it was during this period that the term laïcité has begun to be more common in

political discourses. One of the great milestones of TR in this sense was the total legal

division between the Church and the state in 1905, which had as its principle, present

since the times of the Revolution, that there be "the separation of civil society and

religious society, the State not exercising any religious power, and the Churches no

political power" (Capitant, 1930: 305). Then, "in France, laïcité identifies with the

Republic" (Bauzon, 2017: 177).

At the same period of TR, the French government took its first steps to establish a public

primary education system and "training teachers as defenders of science to

counterbalance the village priest" (Windle, 2004: 98). "The new structure of secular

power replaced the religious community with a political community, excluded religion

from public political life, and gave rise to a still present anti-religious and anticlerical

discourse which makes laïcité a particular experience". This thought was in the perception

of the French State that it must "guarantee freedom of conscience for all and the equality

of all convictions" (Nugier et al., 2016: 16) by relegating religion to the private

environment.

Thus, the State was responsible for the religious neutrality of citizens within all public

spheres (Nugier et al., 2016: 16). In addition, French secularism is seen as a guarantor

of neutrality on the part of the State with all religions and a cohesion that allows national

unity (Berg and Lundahl, 2016). As a result, the wearing of religious clothing in French

schools is regarded as a proselytizing religious act and as "an unacceptable expression

of a religious background that infringes upon the neutrality and the laicist character of

the public school" (Shadid and van Koningsveld, 2005: 48). All this is demonstrated in

a speech by former French Prime Minister Laurent Fabius in 2003, in which he says: "The

school is not just one within many places; is where we shape our little citizens. And this

tripod: laïcité, Republic, school, is the tripod on which we support ourselves" (Fabius,

2003).

It can also be affirmed that the French State model of seeing society and its relationships

with it reinforce the neutrality of religious representation. Based on the Jacobean

centralizing and unitary model, the system today insists on an individualistic relationship

between the State and people (Doyle, 2011: 487). According to Doyle (2011: 478) this

is explained by a legacy of the revolutionary period in which, in order to "combat the

hierarchy of hereditary states", the ideal of the reconstruction of French nationality would

be based on the emancipation of individuals from "affiliation groups". In other words,

"French republicanism encouraged a strong serum of democratic public power but

relegated cultural affiliations and identities, including religion, to the private sphere"

(Doyle, 2011: 478).

The Case of Hijabs in Primary Schools

In 1989, three Muslim girls were temporarily suspended from their schools for their

insistence on wearing the hijab in the classroom. This has generated heated debates

within French society about whether or not the right to wear the veil, "revived existing

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controversies, exploited French fears of Islamic fundamentalism and again dramatized

continuing concerns about the future of Muslim immigrant communities in France"

(Feldblum 1993: 61). The controversy reached the highest court of justice of France (the

Conseil d'État) from which came the opinion that the use of the hijab or expression of

the religion of those girls do not affect the principles of laïcité (Gunn, 2004). However,

the same court said that students can be passive to punishment if they try to make any

kind of religious propaganda or disrupt school activities

Because it was not clearly solved, the issue of the use of the hijab by Muslim students in

primary schools was still a fuel of debate in the country. In addition, the increase in

immigration from former muslim majority French colonies to the country, from the 1980s,

began to produce a certain social tension in relation to the wearing of clothing that

distinguish women from this religion. The use of the hijab and other types of adornments

worn by Muslims in France in public places causes the status of laïcité and its limits to be

questioned. This even causes a suspicion among the French whether Muslims prefer their

Islamic identity than French identity (Gunn, 2004). As many of these women are

immigrants or their daughters, they are seen as foreigners, a non-national symbol that

has not been fully integrated into the standard and genuinely French values, according

to the prevailing identity narratives. "When the French see the veil, they are not proud

that their country is tolerant and welcoming of other peoples and religions, but feel that

something foreign and non-French has infiltrated their society (Gunn, 2004: 418-419).

Since this episode in 1989, several similar cases have been disputed in France, between

those who wanted a purer laïcité and those who did not see conflicts between the use of

religious devices and the legal concept. Also, according to Gunn (2004), however, in most

cases, the Conseil d'État was in favor of wearing the veil, but always warning the issue

of proselytizing and disturbance of order. However, in 2004, legislation was passed

almost unanimously that effectively banned the use of hijba in public schools (Windle,

2004).

This movement to strengthen laïcité (some authors even call it nouvelle laïcité)

began

in 2003, when former Prime Minister Raffarin said during a television interview that the

veil should be punished absolutely in public schools (Ockrent and Leclerc, 2003). Soon

after this episode, the Minister of the Interior (who would end up being the president of

the country) Nicholas Sarkozy said before the Union of Islamic Organizations of France

that no woman should wear the veil when taking photos for official documents in the

Republic (Gunn, 2004). However, although the laïcité issue was built in relation to the

Catholic Church and expanded to other religions, "the threat posed by Catholicism has

never been portrayed exactly as the current threat of Islam is by the mainstream media.

The old mistrust of religious power is now combined with the fear of the formation of

separatist communities" (Windle, 2004: 98).

Prime Minister Raffarin's concern about the alleged threat that the wearing of the hijab

posed to the Republic was based on an issue called communautarisme. Based on "a life

founded on belonging to the Muslim religion", the communautarisme "is perceived as

the refusal to shape the traditional French lifestyle and even as the will to reproduce in

the national territory true enclaves of its original countries" (Bauzon, 2017: 189). This

To delve into the issue see Nugier et al (2016).

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is reinforced by the minister's own words by saying that there should be a "debate that

engages in school and its future" since "we are all convinced, that the school is the

primary space of the Republic" (Raffarin, 2003). In addition the minister (2003) goes on

to say that it must be ensured that it is in the school that the "supreme value that is the

Republic and that there are no ostentatious symbols of communautarisme that come to

unbalance our school balance". Raffarin concludes by saying that the school should

remain as "the space par excellence of the Republic, soon of the laïcité". Therefore, it is

clear the perception of the French authorities that French identity was at risk of existence

for alleged infringements of laïcité by religious groups.

In view of the increased intensity of the debate across the country, President Jacques

Chirac proposed the creation of a committee to assess the situation that should give him

an opinion by the end of 2003. This committee aimed to generate "reflection on the

application of the principle of laïcité in the Republic" (Stasi, 2003: 2). Named Stasi

report (last name of the committee leader), the document proposed several proposals

for social inclusion and improving the lives of marginalized communities, such as Muslims.

However, the point that received the most attention from the public stated the following:

“Adopt the following provision for schools: in respect of freedom of conscience

and the proper character of establishments under contract, clothes and

manifesting signs of religious or political belonging are prohibited in schools,

colleges and high schools” (Stasi, 2003: 68).

In December of the same year, President Chirac gave his opinion on the report and

addressed the issue of the use of religious ornaments in public schools in the country.

On national television, the president thanked the Stasi commission's efforts and made

remarks that would explain the approval of the ban on the use of religious parts by the

French parliament in 2004. As he begins his speech, Chirac says that

“the debate on the principle of laïcité resounds in the depths of our

consciences. It reminds us of our national cohesion, our ability to live

together, our ability to gather about the essentials. The laïcité is inscribed in

our hearts. It is at the heart of our identity” (Élysée, 2003: 1).

By reaffirming that France is known "as the homeland of human rights", he continues to

praise the principle. Moreover, it tells how laïcité is responsible for the reality in which

France lives. "It is in fidelity to the principle of laïcité, the cornerstone of the Republic,

the axis of our common values of respect, tolerance, dialogue, that I call all French and

all French to come together". Continuing, "these values underpin the uniqueness of our

nation. [...]. It is these values that make France”. He also makes direct references to the

communautarisme stating that it "cannot be a choice of France. He would be contrary to

our history, to our traditions, to our culture" (Élysée, 2003: 1-3).

Recalling the principle that "school is a republican sanctuary that we must defend"

(Élysée, 2003: 5), Chirac offers his final opinion on the issue. These are his words:

“With that in mind, I estimate that the carrying of clothes or symbols that

ostensibly manifest the religious must be outlawed in schools, colleges and

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public schools. The discreet signs, for example, a cross, a star of David, or a

hand of Fatima, will naturally remain possible. Unlike ostentatious symbols,

that is, those that the size leads to perceive and recognize immediately their

religious belonging, they cannot be admitted. They – the Islamic veil, whether

it is its name, the kippa or a cross manifestly oversized – will have no room

in public schools. The public school will remain secular” (Élysée, 2003: 5).

In March 2004, President Jacques Chirac signed a law passed by the National Assembly

and the Senate that banned all types of religious clothing in schools, including the hijab.

In the face of all this, it can be seen that the issue of laïcité and, consequently, the French

identity saw in Islam and its clothing its greatest threat within the period analyzed.

Although the Stasi Commission and President Chirac's statements were about religions

in general, throughout the text it was possible to see that both the beginning and

development of the debate on the limits of laïcité and communautarisme and religious

clothing in public spaces, from 1989 onwards, Islam had been the main starting point.

However, although theoretically it is a contradiction within the logic of French values of

tolerance and religious freedom and is a question of the opinions of the Conseil d'État,

the 2004 decision is supported when looked at by the bias of ontological security.

Resuming the thoughts of Steele (2008) and Subotić (2016), states create narratives

about themselves so that their actions of both the past and the present and those of the

future are justified in terms of identity. "[…] actors must create meanings for their actions

to be logically consistent with their identities" (Steele, 2008: 11). Thus, it is understood

why the policies and the resurgence of debates about laïcité within French society after

the affair des foulards islamiques. Thus, anxieties about the future of their identity and

the perception of the threats generated by Islam "justify a policy by reasoning what such

a policy means or would mean about their state’s respective sense of self-identity"

(Steele, 2008: 12).

Putting into perspective the speeches of high-level officials of the executive power such

as Jacques Chirac, Laurent Fabius and Jean-Pierre Raffarin it is seen that the religious

expressions of French Muslims were being considered as threats to the continuity of the

French hegemonic autobiography. Thus, fears and anxieties of French society regarding

its identity, and consequently its existence, enabled the government to make these

decisions.

Conclusions

As demonstrated by the new approaches of Security Studies, societal and identity issues

have been seen as important interpretative keys of reality. In view of all that has been

written, the conclusions of this text show that the manifestations and political

mobilizations in France in relation to the use of the hijab in public schools, between 1989

and 2004, were reactions to the defense of the principle of laïcité, as one of the

ontological bases of the country.

However, it is noteworthy that other issues that are necessary for understanding this

issue are beyond the scope of this work. Reflections on whether these reactions came

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from French society in general or only from those who seek to maintain the racial and

religious status quo is a space that this work opens up for future approaches. Moreover,

issues such as communitaurisme and perceptions about this in relation to national

integrity were points that were raised throughout the text but could not be developed

comprehensively. Another point to be addressed is whether the threat seen in Islam is a

prejudice only to Muslims or to any other non-Catholic religion, since France has a history

of intolerance with Protestants (St. Bartholomew's Day) and Jews (Dreyfuss Affair). In

any case, the aim of this work is not to exhaust the discussion, but only to bring a

neglected perspective when it comes to identity in French society.

Within this same approach, speech acts from actors of high political positions (notedly

the executive body) were analyzed, who were received by a French society who were

fearsome and anxious about their identity due to the large influx of Muslim immigrants

from former French colonies to mobilize narratives. In doing so, cognitive connections

were created with the French autobiography that made acceptable the decisions to

prohibit the wearing of ostentatious religious clothing within public schools as a way to

protect the ontological bases of national identity. However, in the face of immigration

movements and typical religious clothing, Islam has become the main target of these

policies.

Therefore, the debate regarding the use of the hijab in public schools may be within the

debate of ontological security. As demonstrated throughout this work, the use of the

state apparatus was used as a tool to protect French identity by protecting the principle

of laïcité, before Islam, within public schools.

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OBSERVARE

Universidade Autónoma de Lisboa

e-ISSN: 1647-7251

Vol. 13, Nº. 1 (May-October 2022)

PARADIPLOMACY AS THE PRODUCT OF STATE TRANSFORMATION

IN THE ERA OF GLOBALISATION: THE CASE OF INDONESIA

ARIO BIMO UTOMO

ariobimo.hi@upnjatim.ac.id

PhD candidate in Social Sciences at Universitas Airlangga (Indonesia). Assistant Professor at the

Department of International Relations, Universitas Pembangunan Nasional "Veteran" Jawa Timur.

Researcher at the Center for Identity and Urban Studies. Advisor on sister city programs for the

Surabaya City Government. The main focus of the author's research is on issues surrounding

paradiplomacy, especially by cities.

Abstract

The study of international affairs has found itself increasingly intermingled with local contexts.

This condition has led us to a more decentralised approach toward international relations,

where more attention is given to the role of subnational units such as city and province.

Numerous studies with systemic-level analyses have been dedicated to examining

globalisation as a structure and its impact on the emergence of subnational governments in

foreign activities, which can also be understood as paradiplomacy. However, there has been

limited state-level analysis of how paradiplomacy relates to the evolving state role in the

contemporary era. This paper attempts to fill the gap by drawing the experience of Indonesia,

a unitary state and an emerging democracy, in reshaping its institutional structures to pave

ways for its local governments in conducting paradiplomacy. This exploratory study uses

library study to primarily explore official documents on Indonesian regional autonomy, mainly

related to international cooperation. This paper asserts that the rise of paradiplomacy in

Indonesia is driven by the domestication of global issues, decentralisation of power, and

fragmentation of the formerly powerful central agency.

Keywords

Paradiplomacy; state transformation; Indonesia.

How to cite this article

Utomo, Ario Bimo (2022). Paradiplomacy as the product of state transformation in the era of

globalisation: the case of Indonesia. In Janus.net, e-journal of international relations. Vol13,

Nº. 1, May-October 2022. Consulted [online] on the date of the last visit,

https://doi.org/10.26619/1647-7251.13.1.5

Article received on August 21, 2021 and accepted for publication on February 16, 2022

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Paradiplomacy as the product of state transformation in the era of globalisation: the case of Indonesia

Ario Bimo Utomo

PARADIPLOMACY AS THE PRODUCT OF STATE TRANSFORMATION

IN THE ERA OF GLOBALISATION: THE CASE OF INDONESIA

ARIO BIMO UTOMO

Introduction

The study of International Relations generally still revolves around the behaviour of

countries that occur across borders. The state's central position, in this paper by Lake

(2007: 1), is said to "stand for the foreseeable future". This idea is, to some extent,

undeniable. Rooted in the study of Political Science, International Relations is generally

busy explaining why a particular country takes specific actions or does not take certain

actions. Even though non-state actors are starting to be included in the equation,

commonly, they are still struggling with how the state will respond to the actions of these

non-state actors.

A good example is taking case studies on terrorism, one of the most salient contemporary

topics in international politics scholarships. Even though much research has been

dedicated to analysing terrorists as non-state actors, the analyses still tend to emphasise

how the state will manoeuvre against the existence of these actors. For example, Lai

(2017) discusses the impacts of terrorism on the states' foreign policy. Valeriano and

Maness (2018) also highlight the relations between terrorism and cyber security. Last

but not least, there is also the likes of Okafor and Piesse (2018), who correlates the

causes of the emergence of terrorism and its relation to cases in fragile countries. Without

belittling other research that focuses on finding the link between international

phenomena and behaviour at the state level, this shows that International Relations is a

study that still places state actors as the central figure in its study.

However, the increasingly vigorous movement of international issues, driven by the

increasing flow of globalisation, has prompted International Relations scholars to find

alternative explanations for the interactions between international actors. International

issues spread despite the existing political borders. We cannot truly distinguish domestic

and international realms as the line has been blurred between those two, bringing us to

the concept of intermestic, a portmanteau of the terms "international" and "domestic".

This term widely appears in numerous research trying to divert our attention to a more

localised global politics version. Those researches remind us that contemporary scholars

need to pay more attention to domestic aspects when analysing global issues (see

Friedrich, 2018; Huijgh, 2017; Huang and Wang, 2021).

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Paradiplomacy as the product of state transformation in the era of globalisation: the case of Indonesia

Ario Bimo Utomo

Studies on the intermingling between the global and local context in the era of

globalisation were notably initiated by Robertson (1995), who has warned Social Science

researchers to be cautious in assuming globalisation as a phenomenon that overrides

localities. According to Robertson, the dichotomous debate about homogenisation or

particularisation cannot fully see the problem because what is currently happening is the

transcendence between the two, giving birth to a concept he coins as "glocal" or a

combination of globalisation and localisation.

In other terms, glocalisation can also include the hybridisation process. Pieterse (2019)

formulates this idea of globalisation which does not automatically eliminate particularity.

A good analogy is the creation of McAlooTikki by McDonald's India to cater for the local

patrons, even though the spread of the aforementioned fast food joint itself is a global

phenomenon (Reyaz 2013, p.244). This situation gave rise to terms such as "think global,

act locally", which can be interpreted that each region has its particularity even though

it is faced with the globalisation phenomenon, which seems to be a universal occurrence.

Pieterse (2019) states that globalisation is an extensive process permeating every aspect

of life. Another essential idea from him is that glocalisation can also strengthen

supranational and subnational regionalism. What is meant in this context is that not only

globalisation can create new supranational blocs that respond to global issues, but it can

also cause subnational government actors to adjust their positions on these issues.

Therefore, globalisation in structural terms needs also to be understood as "the increase

in the available modes of organisation: transnational, international, national,

microregional, municipal, and local." (Pieterse, 2019: 72-73)

In light of that explanation, this paper attempts to see a facet of globalisation related to

how subnational units are getting more power in international affairs. In the field of

International Relations, such international affairs conducted by local governments is

called parallel diplomacy or paradiplomacy. This paper tries to demonstrate how

globalisation permeates the domestic level and transforms the role of states into making

subnational governments the new international actors. In doing so, the author will bring

the case of Indonesia's paradiplomacy through which we can see how globalisation brings

a rise to subnational actors.

The structure of this paper will be structured as follows. First, the author will describe

the logic behind globalisation and its impact on state dysfunction in carrying out activities

to resolve their issues. Second, this paper will continue with how the dysfunction of the

state causes subnational actors to come to the fore. Third, this paper will trace how the

state then fragments and delegates its power to subnational actors to carry out

paradiplomacy through case studies in Indonesia that can be related to the phenomenon

of globalisation mentioned in the previous two sub-chapters.

In doing so, this paper utilises the State Transformation perspective developed by

Hameiri et al. (2019), a frame of analysis that emphasises the development of states'

roles in the era of globalisation where the global permeates into the local. The core of

this perspective consists of three aspects: (1) fragmentation, (2) decentralisation, and

(3) internationalisation. First of all, fragmentation refers to delegating the policy-making

process to different actors. Then, decentralisation means allocating power to sub-state

entities, for example, provincial and municipal governments. Third, internationalisation

understands that there is a crossroads between domestic and international issues, so

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Paradiplomacy as the product of state transformation in the era of globalisation: the case of Indonesia

Ario Bimo Utomo

state agencies have begun to interact across borders (Hameiri et al., 2019: 4-5). Those

three dimensions will be the departing points in seeing how paradiplomacy occurs due to

the states' development under globalisation.

The main argument of this paper is that paradiplomacy is a product of state

transformation driven by how globalisation slowly incapacitates centralised states and

forces them to delegate some of its power to subnational actors. On the other hand,

globalisation does not create uniformity but encourages glocalisation, absorbing the

international issues into domestic realities. As a result, subnational governments

welcome globalisation as an opportunity to internationalise themselves through

paradiplomacy activities.

Previous studies on the topic

The study of paradiplomacy is still on the rise, and it has been getting more popular

within the last few years in Indonesia. Among the earliest works that explore the concept

of paradiplomacy from the Indonesian perspective are done by Damayanti (2012),

bringing the argument that the practice of paradiplomacy can be used by Indonesia to

enhance its stature within ASEAN. The study provides an idea that paradiplomacy has

the potential to increase the depth of cooperation between members in regional

organisations.

Some other articles, such as by Effendi (2012), Alam et al. (2020), as well as Moenardy

and Sinaga (2021) add to the body of literature by using the economic lens in seeing the

benefits of paradiplomacy. Those articles argue that paradiplomacy is an opportunity for

Indonesian local governments to promote their international competitiveness by

enhancing entrepreneurial government spirit. Mukti (2013), on the other hand, goes with

a more holistic study, exploring the issue of paradiplomacy from four sides: International

Relations, diplomacy, legal-formal, and practical. In his work, he highlights the

prominence of the Indonesian Regional Autonomy in enabling the subnational

government to perform in international affairs before providing case studies from the

province of West Java, East Java, and the Special Region of Yogyakarta.

Regarding the use of State Transformation in the study of Indonesian paradiplomacy,

Karim (2019) 's work has provided an essential foundation by highlighting the activities

of frontier areas of Indonesia such as Batam and West Kalimantan participating in para-

diplomacy activities with foreign territories bordering them (Singapore and Malaysia,

respectively). However, the point of view Karim uses, in this case, is the dimension of

border studies, which emphasises how regions respond to border management

challenges that commonly occur in areas that share borders. Another dimension of

paradiplomacy that has not been explored is the dimension of globalisation, or how the

intensification of the spread of global issues ultimately encourages the redistribution of

power from the state to the regions (Kuznetsov, 2014). Therefore, this paper will offer a

new contribution from this aspect and see how globalisation has encouraged Indonesia

to delegate the power to carry out diplomacy to the regions.

The author observes that while many Indonesian paradiplomacy pieces of research go

directly to evaluating practices case studies or discuss them from the juridical side,

departing from globalisation will add to the existing literature in viewing paradiplomacy

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as a necessity. In developing countries, paradiplomacy is not optimal because the

implementing regions do not adequately perform it (Nganje, 2013). Meanwhile, there is

also the possibility that the minimal knowledge of paradiplomacy will make the activity

just a mere ceremony (Tavares, 2016). Thus, such a study is needed to prepare

developing countries to welcome globalisation more responsively to essential issues.

Glocalisation and the rise of subnational actors

Even though the Westphalian nation-state system seems to be the prevailing status quo,

it is not immune to objections after all this time. A notion of the "post-Westphalian order"

is thus offered to accentuate the evolving global system. Linklater (1996: 78) defines the

so-called post-Westphalian global system as a system in which the exclusionary nature

of traditional sovereignty is put into question as "the central purpose of the state is

mediating different loyalties at the subnational, national and international levels."

Drawing from the European case study, he asserts this argument by saying that the bond

which holds the communities within a state together is being challenged by globalisation

and new loyalties towards subnational communities. In another article, Osiander (2001:

251) even dismisses the Westphalian order as a "myth" and describes it as construction

that hampers the development of different International Relations theories by fixating it

upon a largely imaginary concept of sovereignty which finds its roots from an event from

the seventeenth century. The debate goes on until now and finds its ways through

different aspects of global politics such as security (Sperling, 2017; Doyle and Dunning,

2018; Mircea, 2020), culture (Mancini, 2017; Beyer, 2020), as well as the political

economy (Langan and Price, 2020; Hester and William, 2020). Consequently, nation-

states are increasingly dysfunctional in managing affairs in an increasingly connected

world (Bell 1987; Ohmae, 1992). However, from such a vast array of discussions, there

is a conclusion that globalisation has created deterritorialisation and decentralisation as

the new norms in managing global issues.

However, globalisation itself is not a monolith, and not all countries experience it

uniformly from time to time. Following Swyngedouw's (2004) idea, globalisation has a

two-way process. First, it infuses global issues and trends into daily human life. However,

on the other hand, globalisation also allows subnational actors to express their interests

in international forums. According to Robertson (1995), this two-way process is called

glocalisation. Robertson argues that globalisation creates not only uniformity but also

cultural enclaves, each of which can have its characteristics in globalisation, hence a

“localised” version of global issues. Robertson finds that globalisation can lead to

differences in local politics that differentiate the practice of globalisation in one place

versus another. This condition makes the approaches might differ between countries to

meet global trends.

Regarding the rise of local actors, Keohane and Nye (1971) are the prominent names

who notably bring the study to the table through their work entitled Transnational

Relations and World Politics: An Introduction. The authors develop a theoretical

framework that departs from the traditional wisdom, which puts states as the basic unit

of action in global politics. This work mainly responds to realism, which treats states as

the main actors in international affairs. Keohane and Nye argue that the increasingly

interdependent relations will bring a new trend called "transnational relations" rather

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than the conventional "international relations". By definition, transnational relations

refers to "interactions across state boundaries that are not controlled by governments'

central foreign policy organs" (Ibidem: 331). In this case, the notion of transnationalism

begins from acknowledging that the dynamics between states—as we know it and thus

becomes the basic of realist thinking—does not occur within a vacuum. This argument

means that several other factors contribute to play, including geography, domestic

politics, and the advancement of technology. Therefore, global interdependence also

creates a window of opportunity for the new international actors to build mutual interests.

A need to see the rise of these new international actors can also be seen through the

speech by Javier Solana (1998) at the Symposium on the Political Relevance of the 1648

Peace of Westphalia. Regarding the concept of Westphalian sovereignty, he implies that

the prevailing state-centric point of view is less able to accommodate the increasing

interdependence of actors in this globalising world. Drawing from the European Union

lessons, Inanc and Ozler (2007: 127) resonate with this argument by stating that the

notion of traditional international relations is insufficient to explain the increasing level

of interaction and transaction under globalisation.

From here, we can conclude that we are now facing a condition where (1) scholars need

to re-shift their attention toward the increasingly glocalised version of international issues

and (2) states need to restructure themselves in the face of globalisation. Otherwise,

they will be highly dysfunctional as issues are now moving fast despite the existing

borders, and those issues permeate into the domestic realm within their borders. On the

other hand, this signifies a condition where traditional international relations are

reshaped to accommodate more actors.

If we relate the above discussions to the concept of glocalisation that this paper has

mentioned earlier, then the unification of the world into a more integrated system has

made local governments now begin to engage in their capacity as subnational actors

(Mukti, 2014: 176). Theoretically, this phenomenon is called paradiplomacy, a

portmanteau of "parallel" and "diplomacy", which translates to the capacity of

subnational actors to engage in foreign diplomacy in order to fulfil their specific interests

(Wolff, 2009). It is named "parallel" because it occurs alongside the traditional diplomacy

that the state does. This definition infers a meaning where the host states share their

power in foreign activities with the subnational governments. Currently, the notion of

paradiplomacy is normalised as the standard practice in international relations. In this

case of normalisation, he argues that paradiplomacy is too relevant to be dismissed in

the current international context. The normalisation of paradiplomacy is measured

through the intended outcomes, but it can also be studied as an assertion of "institutional

autonomy in an increasingly complex context" (Cornago, 2010: 35). Next, it is essential

to unveil the logic behind the existence of paradiplomacy due to the transforming role of

the state in the current context.

State transformation and paradiplomacy

Previously, we have seen that globalisation brings with it the interconnection of issues

and actors, which ultimately renders the absolute nature of the state obsolete. Here, the

author argues that one of the lenses that we can use to view the phenomenon of

paradiplomacy is to relate it to how the state's role has evolved in globalisation.

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The concept of state transformation was developed by Hameiri and Jones (2016), with

the main idea of this concept departing from the assumption that global governance is

facing a crisis. Meanwhile, the crisis in question is the difficulty in balancing the relevance

of multilateral institutions with domestic interests in a country. Thus, the authors argue

that in this era of globalisation, what is no less critical for the state is transforming its

institutional functions to respond to global challenges better.

The consequence of living in the post-Westphalian era is that countries can no longer

minimise the impact of an issue in their territory. A case study on this is the mitigation

of the Severe Acute Respiratory Syndrome, more popularly known as SARS, pandemic in

China. The clash between Westphalian and post-Westphalian logic is at play here because

China, as the first affected country, decided to postpone official information about SARS

to save the domestic economy. On the other hand, the World Health Organisation (WHO)

has vigorously announced the research results on SARS that China can no longer hide

from the public. In this case, WHO's meta-governance positions it as an international

oversight agency that defines the institutions, capacities, and relationships that China

had to develop domestically to address global health problems (Hameiri and Jones 2016:

392).

The state transformation theory asserts a "pluralisation of cross-border state agency via

contested and uneven processes" (Hameiri et al., 2019: 1). This idea arises as a further

analysis upon the post-Westphalian order, which can no longer regard that only one

central solid authority can "resolve all questions and contestations into a single foreign

policy" (Ibidem: 3). There are three points that Hameiri et al. made in explaining such

transformation. First of all, there is a process of fragmentation, noting that the initially

powerful central agency has now been pushed to distribute its resources to different

actors and sub-agencies, including private and public agencies. Second, there is also the

process of decentralisation. Through this process, the central agency is now sharing its

power with subnational entities such as regions, provinces, and cities. Lastly, state

transformation also occurs as the domestic agencies have become involved

internationally. In such a sense, globalisation will not be experienced equally by all the

states in the world. Also, this concept reaffirms the post-Westphalian notion that states

should no longer be regarded as single-unitary actors in international politics.

Following that explanation, paradiplomacy is equal to the internationalisation stage of

state transformation. Here, the author sees it as an effort to transform the state to

respond to global issues whose influence has spread to the domestic level. Repeating

what Bell (1987) and Ohmae (1992) argued about the dysfunctional concept of the

unitarian nation-state in the post-Westphalian system, paradiplomacy is necessary for

countries to keep themselves relevant amidst the advent of new international actors. In

this case, the practice pursued by the state is to allow local governments to participate

in formulating foreign activities based on their specific interests. To give an example of

how state transformation is linked to paradiplomacy, the next section will discuss how

the transformation of state functions in Indonesia ultimately results in more regions

practising paradiplomacy.

The case of Indonesia

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Indonesia is an interesting case study. It is a country that has recently been undergoing

a transition from an authoritarian government to a democratic one. Previously, Indonesia

was under Suharto's New Order regime, where the Indonesian Constitution was

"sacralised" to the extent that criticising Suharto was equal to criticising the Constitution.

This had resulted in the legitimation of Suharto's authoritarian rule for 32 years

(Hutagalung, 2017). In this era, Indonesia was a centralised country where power was

concentrated in the hands of the President and development based on regional autonomy

had no place in the political reality in Indonesia.

However, in 1998, Suharto's government collapsed following the crisis in Asia. Delin

(2000) argues that the fall of the Suharto regime can be categorised as one of the

phenomena of the third wave of democratisation experienced by world countries. In this

context, Delin sees that globalisation has contributed to the downfall of authoritarian

regimes because it was driven by several factors such as the emergence of Western-

educated Indonesian democrats and the loss of legitimacy of authoritarian governments

in the face of the global economic crisis. This argument, for example, is consistent with

other works of literature that discuss the relationship between globalisation and

democratisation, such as Acemoglu and Robinson (2006), who say that maintaining

authoritarianism will be increasingly costly in an increasingly integrated world, and Xie

et al. (2021) who finds that globalisation is positively correlated with democratisation

based on their study of 129 countries in the period 1974-2018.

According to the State Transformation theory, the first dimension that changes the state's

function is the emergence of fragmentation of the initially centralised body. This condition

is due to the state's incapacity to manage increasingly complex problems. Fragmentation

is marked by the spread of power-taking agencies that were previously centralised in one

agency to many agencies, often with overlapping responsibilities (Hameiri et al., 2019:

5).

The 1945 Constitution stipulates that Indonesia is a unitary state. The Constitution,

therefore, implies that the ultimate decision-making power rests with the central

government. Such a context is different from the case of federal states, where the

constituent states have more autonomy in the law-making process. Prior to the 1998

reformation, however, the 1945 Constitution recognised the trias politica model of power

fragmentation, which divides the government into legislative (making laws), executive

(implementing laws), and judicial (supervising the implementation of laws). However,

this division of power remained ineffective because, in practice, the legislature could also

issue decrees that supported the will of the rulers (Hutagalung, 2017: 339). Following

the amendment of the 1945 Constitution in 1999 after the fall of Suharto, the powers

are now fragmented even further to six powers, and those powers are: constitutive,

executive, legislative, judicial, inspective, and monetary (Marlina, 2018: 176). In this

case, fragmentation occurred in the post-Suharto era to minimise abuse of power in the

hands of the executive.

First, the constitutive power is the power to change and establish the Constitution and is

exercised by the People's Consultative Assembly (Majelis Permusyawaratan Rakyat).

Executive power, which is the power to implement laws and the administration of the

state government, is held by the President. Legislative power, which is the power to make

laws, is held by the House of Representatives (Dewan Perwakilan Rakyat). The judicial

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power, which is the power to hold courts in order to uphold law and justice, is held by

the Supreme Court and the Constitutional Court. The penultimate power is the inspective

power related to the conduct of inspections on the management and responsibility for

state finances. The Financial Auditing Agency exercises this power. The sixth and last

power, the economic power to set and implement monetary policy, regulate, and

maintain the currency's value, is exercised by Bank Indonesia as the central bank in

Indonesia.

Although this dimension does not directly relate to the discussion of the practice of

paradiplomacy in Indonesia, it provides some background on the current state of power

fragmentation in the Indonesian government. After all, this fragmentation of power

marks the context of Indonesia's post-reform democratisation. This condition is ripe for

international cooperation due to its increasing regard to more accountable governance.

A more detailed explanation of transferring power from the centre to the regions will be

facilitated by implementing decentralisation.

From the aspect of decentralisation, Indonesia came up with regional autonomy, which

later became the next stage after the fragmentation following the end of the New Order

regime. Regional autonomy in the reformation era was the answer to the demands of

society that commonly appeared in the New Order regime, such as the problem of uneven

development, the government that is too centralised, and the ineffectiveness of the

bureaucracy. The first regulation on decentralisation was stipulated through the Act No.

32 of 2004 on the Regional Autonomy. This regulation was later amended by Act No.23

of 2014 to catch up with the developments in the state, state administration, and

demands for regional government administration (Indonesia, 2004).

The decentralisation aspect is fundamental to the study as paradiplomacy is related to

how the powers are dispersed from central agencies to regions as implementers. Even

though paradiplomacy positions subnational governments as the prominent actors, states

as the highest sovereignty holder are the ones that need to bestow the power to the

regional actors. Therefore, even though the Indonesian regional governments can now

manage their affairs, they still have limited authorities (Mukti et al., 2020: 140). There

are six powers reserved only for the central government. Those powers are foreign policy,

defence, security, judiciary, monetary, and religion (Indonesia, 2014).

From the aspect of internationalisation, we need to understand that the context

underlying Indonesia's paradiplomacy activities is the awareness that foreign activities

are not only the central government's domain. Within the Act Number 37 of 1999

concerning Foreign Relations, Article 1 paragraph (1), Article 5 paragraph (1), and

paragraph (2), it is implied that foreign relations are any activity involving international

aspects carried out by the government at the national and subnational level. The

subnational level referred to by this regulation are the cities (Kota), regencies

(Kabupaten), and the provinces (Provinsi).

In its implementation, paradiplomacy by Indonesian subnaitonal governments is

supervised by the Minister of Home Affairs and the Minister of Foreign Affairs. The two

ministers coordinate in the implementation of foreign relations and their implementation.

In Act No. 24 of 2000, article 5 paragraph (1), it is stated that state institutions and

government agencies, which have plans to conclude international agreements, must first

conduct consultations and coordination regarding plans with the relevant ministers.

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With the Act as mentioned above No.32 of 2004, it is also mentioned that autonomous

regions can carry out foreign cooperation as contained in Article 42 paragraph (1). There,

it is stated that the Regional House of Representatives (Dewan Perwakilan Rakyat

Daerah) has the function to give approvals for international cooperation carried out by

regional governments. It is also emphasised in the explanation of the article that in

addition to sister cities or province activities, local governments can also make "technical

cooperation agreements including humanitarian assistance, loan and grant forwarding

cooperation, capital participation cooperation and other cooperation following the laws

and regulations" (Mukti, 2014: 182).

The essence of state transformation as a response to the glocalisation of issues is slowly

being captured through paradiplomacy opportunities for Indonesia's cities, regencies, and

provinces. Nowadays, regions in Indonesia are starting to establish cooperative relations

based on the interests they most want to pursue. According to Lecours (2008), the

interests in paradiplomacy are divided into three levels. First is economic interest,

involving cooperative activities that attract foreign investment or promote local products.

Second is knowledge interest, a paradiplomacy level that aims to increase knowledge

through exchanges and capacity building programs. Third is political identity interest, a

paradiplomacy that attempts to display an international image distinguished from the

one possessed by the parent state. In connection with the Indonesian Constitution, which

reserves the implementation of central politics to the state power, Indonesian subnational

governments can only perform paradiplomacy at the first and second levels.

Paradiplomacy at the first level, namely economic interests, can be found on issues such

as tourism and the creative economy. For example, tourism is a prevalent glocalised

issue that many Indonesian regional governments focus on. It has become attention

because of its promising position as the extension of the creative economy strategy in

the current era. Arionesei et al. (2014) see that tourism has now become a global issue

because of the growth of leisure time, accompanied by a better living standard, as well

as increasing tourism demands by the international community. The advancement of

information technology has made it possible for people to find different new touristic

destinations. In response to this globalising tourism, the city of Bandung in West Java

translates the issue by developing its own "halal tourism" concept by conducting

paradiplomacy through tourism fairs by inviting Muslim country representatives as well

as foreign journalists to come to Bandung (Dermawan et al., 2020). On the other hand,

highly touristic regions such as Bali and the Special Region of Yogyakarta are also well-

known for promoting their tourism potentials through foreign engagements (Adil, 2017;

Rahmawati, 2019; Sabarno, 2021).

At the second level of paradiplomacy, the paradiplomacy infused with interest to increase

knowledge, we can take environmental issues as an example. Responding to

environmental demands that are starting to be felt at the local level, cities such as

Surabaya (East Java) have established a thematic paradiplomacy with the city of

Kitakyushu with a focus on green cooperation. This partnership with Kitakyushu also led

to the development of the Green Sister City Program to manage waste and prevent this

environmental issue from spreading into a more significant health issue (Wardhani &

Dugis, 2020). Suppose we trace it up to the international context leading to the

cooperation. In that case, we can find that the choice of the theme of green cooperation

was initiated from a need to answer the eleventh point Sustainable Development Goals

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(SDGs), regarding sustainable cities and settlements. This point regarding the SDGs is

then translated into Indonesia's national plan to follow the SDGs as a national

development priority that requires synchronisation of planning policies at the sub-

national government level. Based on the SDGs, Surabaya then translated it into a vision

of "Surabaya, a prosperous city with a strong character and a global competitiveness

based on ecology" (Surabaya City Government, 2016). Surabaya also implemented

regional development plans, which the Surabaya City Government facilitated through

foreign cooperation schemes, one of which was with Kitakyushu through green

cooperation. The implementation of the green sister city between Surabaya and

Kitakyushu is an example of how the domestication of global issues translates to the

paradiplomacy among subnational governments.

Admittedly, the paradiplomacy activities carried out by regions in Indonesia are still far

from perfect. One lingering issue is that some paradiplomacy plans have stopped

following the creation of the Memorandum of Understanding. Therefore no practical

implementations are made (see Erika & Nurika, 2020; Putri & Adnan, 2017; Rani, 2014).

However, this does not negate that a precondition has led to these regional activities on

the international scene. In this case, the transformation of the Indonesian state can

explain such a phenomenon. As a result, the regions now have a window of opportunity

to interpret the reality of globalisation based upon their specific interests and react

accordingly through cooperation.

The decentralisation and internationalisation phase of the state transformation are so

closely related. The role of subnational governments in globalisation can be explained by

a need to look at local aspects of the economy, followed by a need to look at local aspects

of the state system. The logic of glocalisation is that it creates a particularity obtained by

translating the global context into local aspects. The closer the translation is to the

constituents, the more unique a subnational government is in globalisation (van der

Heiden & Terhorst, 2007). In this context, the subnational government is a political actor

whose function is to capture the needs and local context of the community below. On the

other hand, decentralisation allows sub-national governments to have the political and

structural capabilities to interact with international actors and global values in line with

the transformation of power at the state level.

Conclusion

This paper has attempted to answer a question on how subnational units are getting

more power in international relations. More specifically, it tries to shed light upon an

issue about what makes them more engaged in international affairs through

paradiplomacy. Throughout the discussion, the author has shown that the explanation

can be related to how globalisation has been absorbed at the local level, creating the

"intermestic" approach to varying life problems. This condition makes not every country

faces this phenomenon uniformly. In addition, in responding to globalisation, countries

also feel dysfunction increasingly due to growing issues and increasingly felt at their local

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level. This condition is known as hybridisation because each locality will experience global

issues in different measures.

Paradiplomacy is a product of globalisation. It affirms the increasing role of non-state

actors studied so far by International Relations scholars. The emergence of regions as

actors of globalisation can be traced using the perspective of state transformation, which

has three dimensions: fragmentation, decentralisation, and internationalisation. First,

central government agencies are separated from a single body to more specific ones.

Then, countries in globalisation are increasingly demanding to delegate their power to a

lower level because global issues have permeated the regional level. The states are

becoming more and more overwhelmed with managing those issues. The delegation of

power made the region realise its needs and then carry out foreign activities through

paradiplomacy.

The author has presented the case of Indonesia as an illustration of how state

transformation can lead to the active participation of regions to carry out paradiplomacy.

This activity can be viewed in two ways, firstly as a way for countries to compromise with

increasing global demands, which are increasingly pressing them to delegate their power.

Moreover, the second is a way for regions to assert their locality in the era of globalisation

with specific collaborations with foreign partners.

Nevertheless, the author sees that new avenues of research can still improve this paper

in the future. For instance, subsequent studies can focus on different case studies,

especially in states that still adhere to authoritarianism. State transformation entails a

condition of democracy and requires a delegation of powers. Also, more attention can be

paid to analysing how leaders' characteristics affect Indonesia's regions to

internationalise, especially their choice of partners and global issues to translate towards

cooperation.

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OBSERVARE

Universidade Autónoma de Lisboa

e-ISSN: 1647-7251

Vol. 13, Nº. 1 (May-October 2022)

ACCEPTING ULTRAPERIPHERY: THE ROLE OF THE CONFERENCE OF

PERIPHERAL MARITIME REGIONS (CPMR) IN THE TERRITORIAL

MOBILIZATION STRATEGY OF THE GOVERNMENT OF THE AZORES WITH THE

EUROPEAN UNION

ANDRÉ PIMENTEL GARCIA

andre.pimentel_garcia@coleurope.eu

Master Degree student in European Studies, College of Europe-Natolin (Poland). Master Degree in

Political Science, University of Minho. Bachelor Degree in Communication Science, University of

Porto.

SANDRINA FERREIRA ANTUNES

santunes@eeg.uminho.pt

Assistant Professor, University of Minho (Portugal). Bachelor Degree in International Relations

and a Master Degree in Political Anthropology. Ph.D. in Political Science. She is Director of the

Bachelor Degree in Political Science, University of Minho. She is an integrated member of the

Centre for Research in Political Science, University of Minho and a scientific fellow, Research

Centre for Political Life at the Libre University of Brussels. She was a visiting researcher, London

School of Economics and University of Edinburgh and is Institute of International Studies (IBEI)

in Barcelona. She received a scholarship from the Foundation for Science and Technology. She

collaborated with the Committee of the Regions and the Assembly of European Regions. She was

a political consultant for the Government of Catalonia and is a member of the Scientific Council of

the Coppieters Foundation, Brussels. Her research focuses on nationalist movements within the

European Union and on the representation strategies of regional and local entities within the

European Union and on the Europeanization processes of small centralized states, such as

Portugal, resulting in a book published by Routledge, 'Europeanization and Territorial Politics in

Small European Unitary States: A Comparative Analysis'.

Abstract

The territorial mobilization strategy of the Regional Government of the Azores (GRAA) with

the European Union (EU) is based on the use of all regionally based representation channels

provided by the EU, including the Transregional European Associations (TEAs). Among these,

we highlight the Conference of Peripheral Maritime Regions (CPMR) which GRAA presided

during the 11th and 12th Governments, in the person of the president of GRAA Vasco Cordeiro.

Based on this observation and given that the literature still does not offer any information on

the purpose of using TEAs, this article aims to fill this gap by identifying the purpose of thee

GRAA’s using the CPMR. Thus, using the conceptual framework offered by Callanan and

Tatham (2014) and by conducting eight semi-structured interviews with political and technical

personalities from the GRAA and the CPMR, it was possible to conclude that the GRAA uses

the CPMR mainly for the purpose of regulatory mobilization. (4.9 out of 5) and residually for

the purpose of financial mobilization (3.3 out of 5). More specifically, in terms of regulatory

mobilization, the essential issue for the GRAA is the maintenance of a strong cohesion policy,

although sporadic opportunities are probed in various policy areas that may result in more

advantageous frameworks for the GRAA. In terms of financial mobilization, the use of the

CPMR is mainly related to the formation of consortia that can be an end in itself or can

constitute an opportunity to prove certain political points.

Keywords

Territorial mobilization; Regional Government of the Azores (GRAA); European Union;

Conference of Peripheral Maritime Regions.

How to cite this article

Garcia, André Pimentel, Antunes, Sandrina Ferreira (2022). Accepting ultraperiphery: the role

of the Conference of Peripheral Maritime Regions (CPMR) in the territorial mobilization

strategy of the Government of the Azores with the European Union. In Janus.net, e-journal of

international relations. Vol13, Nº. 1, May-October 2022. Consulted [online] on the date of the

last visit, https://doi.org/10.26619/1647-7251.13.1.6

Article received on January 4, 2022 and accepted for publication on April 13, 2022

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

Vol. 13, Nº. 1 (May-October 2022), pp. 79-97

Accepting ultraperiphery: the role of the Conference of Peripheral Maritime Regions (CPMR) in the

territorial mobilization strategy of the Government of the Azores with the European Union

André Pimentel Garcia, Sandrina Ferreira Antunes

ACCEPTING ULTRAPERIPHERY: THE ROLE OF THE CONFERENCE

OF PERIPHERAL MARITIME REGIONS (CPMR) IN THE

TERRITORIAL MOBILIZATION STRATEGY OF THE GOVERNMENT

OF THE AZORES WITH THE EUROPEAN UNION

ANDRÉ PIMENTEL GARCIA

SANDRINA FERREIRA ANTUNES

Introduction

The territorial mobilization strategy of the Regional Government of the Azores (GRAA)

with the European Union (EU) is based on the use of all regionally based representation

channels provided by the EU, including the Transregional European Associations (TEA).

Among these, we highlight the Conference of Peripheral Maritime Regions (CPMR) which

the GRAA presided over during the 11th and 12th Governments, in the person of the

president of the GRAA Vasco Cordeiro between 2014 and 2020. The Europeanist vocation

of the GRAA (Valente, 2017) and of the successive governments manifests itself in a

strategy of strength in all channels of regional mobilization (Antunes and Magone, 2020).

The Autonomous Region of the Azores (RAA) is not limited to trying to remedy a condition

of apparent disadvantage, as is the case of the outermost regions. In fact, this potential

is used as a strength and an opportunity by the region, as attested by Vasco Cordeiro,

the President of the Regional Government of the 11th and 12th Governments of the Azores

(from 2012 to 2020) (interview 2021h). In the same line of thought, for the assistant to

the Regional Undersecretary of the Presidency for External Relations between 2012 and

2016 and Regional Director for European Affairs between 2016 and 2020: “insularity is

not fought, it is accepted” (interview 2021b).

Therefore, it is in this particular context that the European political system emerges as a

structure of political opportunity that allows regional entities to compensate for their

peripheral position (Beyers and Kerremans, 2012). Participation in the European

decision-making process, through the institutionalization of formal and informal

channels, inside and outside European institutions, has allowed sub-national actors to

influence key institutional actors at European level (Tatham, 2008). The objective is to

influence the decision-making process in matters that may affect the interests of the

Region, on the one hand, and to monitor funding opportunities that can enhance regional

Article translated by Carolina Peralta.

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Accepting ultraperiphery: the role of the Conference of Peripheral Maritime Regions (CPMR) in the

territorial mobilization strategy of the Government of the Azores with the European Union

André Pimentel Garcia, Sandrina Ferreira Antunes

development, on the other. The idea is to anticipate and sometimes override the action

of central governments, in a proactive attitude that has earned the name of national

bypassing (Keating et al, 2015).

The RAA's representation strategy with the EU as an Outermost Region (OR) does not

differ from the strategies developed by other similar political regions. Similar to what

happens with the German Landers or the Spanish Autonomous Communities, the GRAA

participates in the dynamics of representation that arise within the framework of

multilevel governance (MLG), seeking to promote the interests of the Azores Archipelago

through the use of different channels - or access routes - provided by the EU itself. In

this regard, Gary Marks (e.g. 1992 and 1993) was a pioneer in the operationalization of

this new dynamic of European multilevel governance. Due to a context of power

dispersion that operates upwards, for the European institutions, and downwards, for the

sub-state entities, regional (and sometimes local) authorities feel legitimated to

participate in decision-making at European level. This access is made through two routes,

the national route provided by the Permanent Representation of Portugal to the European

Union (REPER) and the Brussels route, although the latter is the most favoured given the

freedom and autonomy of action it offers. It is in this last category that, along with the

Regional Offices in Brussels (Rowe, 2011; Tatham, 2010), the participation in the TEA,

such as the CPMR (Greenwood, 1997), stands.

Thus, by integrating the CPMR, the RAA fulfils the imperative signalled by Bomberg and

Peterson (1998: 229): any subnational authority that wants to influence decision-making

processes in the EU must position itself in coalitions within and between TEA. Thus, it can

influence institutions, listing, as a bargaining chip for access to political decision-makers,

the triad of information, experience and legitimacy (Beyers et al. 2008).

Whereas, on the one hand, the EU is understood as a structure of political opportunity

by subnational territorial authorities (regional and local), on the other hand, European

institutions need information from the domestic (including subnational) level, from

technical advice to potential compliance issues (Beyers and Karremans, 2007). In

addition, subnational entities, which actively participate in the download of European

guidelines, must also be involved in the upload process (Bursens, 2010: 163-164). Thus,

the territory is consolidated not as a neutral component, but as an interactive system in

which specific conditions, resources, ties and capabilities coexist.

However, the literature on RAA mobilization in the EU is quite scarce. The existing

literature essentially focuses on the mobilization of the Portuguese Autonomous Regions

in favour of the definition and consolidation of the Ultraperipheral Region (UR) (Valente,

2013, 2016a, 2016b and 2017). More recently, Callanan and Tatham (2014), as well as

Antunes and Magone (2020), contributed to the identification of the mobilization

rationales underlying the activity of regional and local representative offices. Still, the

dynamics of regionally based territorial mobilization via the TEA continue to be little

studied. Even so, the salience of the TEAs, namely the CPMR, is confirmed by the

aforementioned authors, as well as by the systematic mention in other studies of

territorial mobilization strategies (Bomberg and Peterson, 1998; Hooghe, 2007; Tatham,

2008; Rowe, 2011).

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territorial mobilization strategy of the Government of the Azores with the European Union

André Pimentel Garcia, Sandrina Ferreira Antunes

This article aims to fill this gap by identifying the purpose of the GRAA´s use of the CPMR

through the concepts of regulatory mobilization and financial mobilization (Callanan and

Tatham, 2014). With this purpose in mind, this article will be organized into five parts.

At first, it will identify the regionally based representation channels made available by

the EU, among which the CPMR stands out. Then, it will present the conceptual framework

of analysis and explain its methodological choices before presenting and discussing the

data. Finally, in the conclusion, it will make some general considerations and identify new

research paths.

1. Regionally based representation channels in the European Union: the

case of the CPMR

The EU offers multiple opportunities for regionally based territorial mobilization. This

process, through which interest groups move between access points, is called ‘venue

shopping’, a term coined by Baumgartner and Jones (1993), which can be applied to

European dynamics. This concept refers to the search for the access point to the EU that

offers the best opportunities to achieve the actor's specific objectives. In the case of the

EU, the literature distinguishes between the national route and the European routes

(Loughlin, 1997; Hooghe, 1995; Greenwood, 1997). Within the latter, we identify formal

channels and informal channels (Beyers and Bursens, 2006: 1075).

According to Greenwood (1997), the national route refers to the mediation provided by

the national governments themselves through the Permanent Representation of Portugal

to the EU (REPER). The use of the national route depends on the role of the central

government in different stages of the European political process, including decision-

making in the Council and its implementation, i.e. it depends on the extent to which the

central state provides a familiar and convenient route of access to regional interests.

Greenwood (ibid.) describes centralization as conducive to successful use of the national

route. This is due to centralization providing better governmental coordination in terms

of European affairs. In contrast, for more decentralized states, coordination is more

difficult.

The Brussels route, also known as the European route, consists of the use of formal and

informal channels that involve direct representation in the European institutions (Antunes

and Magone, 2020). In fact, it is mainly on the Brussels route that we can speak through

formal and informal channels. In order to be characterized as formal, channels must

simultaneously fulfil two conditions (Kovzridze, 2002: 129): first, relationships must be

regulated by the constitution or any other document with legal status, such as laws or

intergovernmental agreements between levels of government; second, the relationship

between the structures (sub-state, national and supranational authorities) must be

ensured by inter-institutional coordination mechanisms, exercised on a regular basis.

Informal relationships are defined in opposition to the former, which is why they take

place without legally foreseen institutional mechanisms.

Within the framework of the Brussels route, the main formal channel of specifically

regional representation is the Committee of the Regions (CoR). There are other formal

channels, namely the European Commission, the European Council and the European

Parliament, which, although they are formal channels of representation, are nationally

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territorial mobilization strategy of the Government of the Azores with the European Union

André Pimentel Garcia, Sandrina Ferreira Antunes

and not regionally based. Informal channels of regional mobilization are based on

practices that are not required by law, but which are capable of eclipsing formal rules

(Kovziridze, 2002; Beyers and Bursens, 2006; Hogenauer, 2014) and becoming highly

institutionalized, used on a regular basis and relevant to regional mobilization strategies.

The main informal channels are essentially two: The Regional Representative Offices,

widely covered in the literature on territorial mobilization in the EU (Hooghe, 1995; Marks

et.al, 2002; Tatham, 2008; Rowe, 2011) and the TEAs, the “poor relative” of regional

offices given the little attention it has received from the literature.

Despite this lack of attention, the TEAs are important thanks to the characteristics of the

European decision-making process. This is the tendency to reward aggregate interests,

for reasons of legitimacy and efficiency, given the competition for time, naturally limited,

between interests (Bomberg and Peterson, 1998: 229). Also noteworthy is the more

explicit recognition of the need to involve regional and local government associations in

the EU policy process at European and national level with initiatives. Examples include

as the White Paper on European Governance, the "structured dialogue" with associations

of regional and local authorities and the provisions on local and regional authorities of

the Treaty of Lisbon (Callanan, 2012: 756).

The CPMR is a TEA that is part of the informal channels of the Brussels route, similar to

the Regional Representative Offices. Created in 1973 (CPMR, 1973) in Brittany, France,

by 23 regions from eight-member states, the CPMR is a TEA that aims to promote the

development of European territory, with special emphasis on the development of

maritime and peripheral regions. The CPMR functions as a strategic office (think tank)

and as a regional lobby, and is made up of around 114 regions. Its members come from

regions of 24 member and non-member states of the European Union, representing

approximately 200 million people. These regions are subdivided in the institutional

structure into Geographical Commissions

(GC) which, since 1980 with the emergence of

the first GC, of the Islands, correspond to the maritime basins of the European continent.

As an example of its dynamism, we can mention that the CPMR was very useful in co-

organizing conferences with the EC on issues where the latter felt that more consultation

was needed (Tatham, 2010), mainly due to its ability to mobilize maritime regions. In

fact, the CPMR is important, as attested by its mention in several works (Bomberg and

Peterson, 1998; Tatham, 2008; Rowe, 2011; Callanan and Tatham, 2014; Antunes and

Magone, 2020), with authors naming it among peers able to exert a significant presence

regarding EU mobilization.

Regarding the participation of the RAA in the CPMR, the RAA has been part of the

organization and has participated in its activities since 1979, even before Portugal joined

the then EEC. There are no records of the Azores having served as president or vice

president of the Conference before 2014, the year when Vasco Cordeiro was elected as

president of the CPMR, at the General Assembly in Umeå (Sweden). The election of Vasco

Cordeiro was repeated in 2016 in Ponta Delgada and in 2018 in Funchal, considering that

the terms of office are for two years. Even so, there is an effort on the part of the

governments of Carlos César, president of the Government of the Azores between 1996

and 2012, who also presided over the GC of the Islands for at least one term (interview

For additional information, check the CPMR website here: https://cpmr.org/who-we-are/geographical-

commissions/ acceded on 10 December 2021.

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territorial mobilization strategy of the Government of the Azores with the European Union

André Pimentel Garcia, Sandrina Ferreira Antunes

2021b; RTP-Açores, 2010). The TEAs, like the CPMR, have a role in promoting specific

regional interests when they overlap with those of other regions and can be

instrumentalized by some regions to advance their agenda (Tatham, 2008: 508). Still,

limited attention has been paid in the literature on regional mobilization to the TEAs

(Beyers and Donas, 2012). In contrast, the importance of networking in gaining influence

in EU policymaking processes has been repeatedly highlighted (Bomberg and Peterson,

1998; Tatham, 2008; Beyers and Donas, 2014).

Therefore, the strategy of mobilizing the RAA through the CPMR proves to be a case

study capable of filling the gap in the literature in terms of the study of the TEAs. Whereas

the prominence of the CPMR in the context of regional mobilization is proven by being

mentioned in several works (Bomberg and Peterson, 1998; Tatham, 2008; Rowe, 2011;

Callanan and Tatham, 2014; Antunes and Magone, 2020), the importance that the RAA

attributed to it is confirmed by the successive presidencies of Vasco Cordeiro. Taking into

account the conceptualization of the informal channels of the Brussels route, this research

seeks to ascertain whether the concepts widely used in the study of Regional

Representation Offices can be equally used in the study of a TEA.

2. The objectives of territorial mobilization: regulatory and financial

mobilization

This research is based on a conceptual reflection already developed (Callanan and

Tatham, 2014) on the types of mobilization that constitute the main rationales of regional

actors in Brussels: financial mobilization, which arises with the centrality of the issue of

cohesion policy in the study of subnational mobilization; and regulatory mobilization, less

explored and seen as arising from the EU regulatory bias (Majone, 1994).

By financial mobilization, we refer to monitoring and collecting information with a view

to accessing European funds for specific regions or areas. This mobilization is

characterized as a more reactive process, with an emphasis on obtaining rewards or

designing support for individual territories based on European funding schemes (Callanan

and Tatham, 2014: 191-192). By regulatory mobilization, we mean a proactive and

dynamic process in which regional and local governments seek to influence EU policies

and legislative outcomes. Emphasis is placed on activities designed to influence the EU

legislative process, where legislation has an administrative or financial impact on

subnational governments (ibid: 194).

Although Callanan and Tatham have used these notions to explain the mobilization

purposes associated with regional representation offices, we believe that this conceptual

framework can be equally useful to understand the mobilization logics underlying the use

of the TEAs, taking the CPMR as a particular case. In doing so, we intend to identify the

purpose(s) for which the GRAA uses the CPMR for the purposes of representing its

interests in the EU.

Finally, and similarly to what Callanan and Tatham argue, we believe that the GRAA, as

an Autonomous Region with substantial political competences, will privilege territorial

mobilization for lobbying purposes, that is, for the purposes of regulatory mobilization,

as follows: GRAA uses the CPMR mainly for regulatory mobilization purposes and

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Accepting ultraperiphery: the role of the Conference of Peripheral Maritime Regions (CPMR) in the

territorial mobilization strategy of the Government of the Azores with the European Union

André Pimentel Garcia, Sandrina Ferreira Antunes

residually for financial mobilization purposes. This hypothesis, while expecting a greater

prominence of regulatory mobilization, does not, however, exclude financial mobilization.

3. Research method and design

This paper consists of a case study (Yin, 2018: 49) that can be understood as an empirical

method that examines a contemporary phenomenon (the case) in depth and within its

context in the real world, especially when the boundaries between the phenomenon and

the context are not clearly evident. A case study addresses a situation where there are

many variables of interest and, therefore, benefits from the further development of

propositions to guide design, information collection, and analysis.

Also according to Yin (ibid: 50), we can highlight three distinct applications of this study

method. Case studies can aim at mere description, explanation or exploration. Thus, we

speak of descriptive case studies when the purpose is to describe and identify the nature

of a phenomenon. Alternatively, we speak of explanatory case studies when the purpose

is mainly to explain the occurrence of a certain phenomenon. Finally, we speak of

exploratory case studies when the purpose is above all to explore phenomena never

studied before, thus treading new paths of intellection. The case study in question can

be described as descriptive insofar as it seeks to identify the reasons for territorial

mobilization that guide the action of the GRAA with the EU, in the use of the CPMR as a

channel of informal mediation.

For the purposes of data collection, we favoured the use of primary sources through

interviews with eight politicians and technicians relevant in the relationship between the

GRAA and the CPMR. This sample is made up of almost all politicians at the highest level

of the 11th and 12th Azores Governments who worked daily on European affairs and

agreed to be interviewed. The initials of the interviewees resulted from a research in the

official sources of the GRAA, but also from the contribution of the interviewees, namely

at the level of the most relevant contacts in the CPMR.

Regarding the actual interviews, we prepared a semi-structured guide (Creswell, 2009),

with open and closed questions (Appendix I). According to Mathews and Ross (2010),

the semi-structured interview, with open and closed questions, follows a common set of

topics or questions for each interview. It introduces the topics or questions in different

ways or orders appropriate for each situation and allows the participants to respond to

the questions or discuss the topic in their own words. Semi-structured interviews can be

used for exploration, explanation and evaluation purposes. In this case, we use the first

two: exploratory research to understand what participants think is important about the

research topic and understand how they talk about it; and explanatory research to gather

information that will help explain people's experience and the social phenomenon in a

particular and profound way. For triangulation purposes, secondary sources were also

used, such as official documents, mainly from the CPMR.

Data collection refers to the time frame 2012-2020. This period starts in 2012 with the

election of the president of GRAA, Vasco Cordeiro, and ends in 2020 with the end of his

term. In 2014, Vasco Cordeiro was elected for the first time as president of the CPMR. In

2016 and 2018, Vasco Cordeiro was re-elected for the second and third time,

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Accepting ultraperiphery: the role of the Conference of Peripheral Maritime Regions (CPMR) in the

territorial mobilization strategy of the Government of the Azores with the European Union

André Pimentel Garcia, Sandrina Ferreira Antunes

respectively. The year 2020 thus puts an end to the continuity of Vasco Cordeiro's term

as president of GRAA and the CPMR.

4. Presentation and discussion of data

In the interviews with the eight individuals, they were asked to assign a value from 1 to

5 to each of the CPMR's mobilization objectives, with 1 being not at all important and 5

being very important. The global results are shown in graph 1, showing the average of

the responses for each of the mobilizations.

Thus, regulatory mobilization is the most predominant, reaching an average of 4.9 out

of 5, while financial mobilization reaches an average value of 3.3 out of 5. Nevertheless,

the assistant to the Regional Undersecretary of the Presidency for External Relations

between 2012 and 2016 and the Regional Director for European Affairs between 2016

and 2020 (interview 2021b) admits the strong link that exists between both objectives,

as we will see later.

Graph 1 – Importance of each mobilization for the CPMR. The scale used ranges from 1

(not at all important) to 5 (very important)

Source: Authors’ own

Looking in more detail at the results obtained in Graph 2 below, with regard to regulatory

mobilization, and similarly to what is mentioned in the literature (Callanan and Tatham,

2014), the preponderance of cohesion policy is obvious (7.5/8), maritime affairs (7.2/8),

after the energy continuum (6.5/8), environment (6.3/8), and climate change (5.2/8).

Accessibility also plays an important role in terms of mobilization opportunities (4.8/8).

Of the 'official' areas of the CPMR, the one that seems least important to the GRAA is, in

fact, the global agenda, especially related to migration. In the opinion of the Assistant

Regional Undersecretary of the Presidency for External Relations between 2012 and 2016

and Regional Director for European Affairs between 2016 and 2020 (interview 2021b)

and the Regional Undersecretary of the Presidency for External Relations between 2012

and 2016 (interview 2021g), although many ORs and other members of the CPMR receive

a significant flow of migrants, this is not an issue that poses a problem for the Azores,

which are positioned in terms of reception experiences (c.f. The Regions for Migrants and

Refugees Integration – REGIN, Conference of Peripheral Maritime Regions, 2021).

In this context, cohesion policy is the key component of the CPMR, especially for the

Azores, an OR considered a less developed region, with a GDP per capita below 75% of

the EU average (Antunes and Magone, 2020: 8). Part of the CPMR's work includes

3,3

4,9

012345

financial mobilization

regulatory mobilization

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Accepting ultraperiphery: the role of the Conference of Peripheral Maritime Regions (CPMR) in the

territorial mobilization strategy of the Government of the Azores with the European Union

André Pimentel Garcia, Sandrina Ferreira Antunes

advocating a strong cohesion policy that strengthens territorial cohesion in Europe. In

this context, regulatory recognition of the specific characteristics of the outermost

regions, safeguarded by Article 355 of the Treaty on European Union (TEU), and of other

territories that face permanent deficits, such as islands, mountain regions and regions of

low population density is particularly important (CPMR, 2013).

According to the Assistant to the Regional Undersecretary of the Presidency for External

Relations between 2012 and 2016 and Regional Director for European Affairs between

2016 and 2020 (interview 2021b), the question of balance of interests is also present

here, because, if the outermost regions defend a private disposition for themselves, the

other territories are also entitled to do so. This opinion is corroborated by the president

of the 11th and 12th Governments of the Azores (interview 2021h) when he states that

the CPMR is not oriented – and was not even thought of – to defend only the interests of

specific regions or even typologies of regions such as the ORs, but rather of all its

members

Graph 2 – Averages of areas of regulatory mobilization ordered by GRAA interviewees.

The scale used is from 8 (most important) to 1 (least important).

Note: In blue, the conventional areas of activity of the CPMR. In green, the additional areas

suggested by respondents.

Source: Authors’ own

In the context of cohesion policy, the CPMR regretted the proposed decrease in the EC

budget, as well as the reduction in co-financing of regions with structural deficits, namely

the ORs (European Commission, 2018a: 106-107), and the maintenance of the statutes

concerned, in the Final Declaration of the 46th General Assembly of the CPMR (CPMR,

2018: 3-4). The CPMR played an important role in the crystallization of cohesion policy.

“In 2017, the European Commission launched a public consultation on what is expected

of cohesion. It is curious that any reference to 'cohesion policy' was almost absent from

that consultation, there was talk of cohesion, but 'cohesion policy' was something that

was falling into disuse” (interview with the President of the Regional Government

between 2012 and 2020, 2021h).

This trend is also demonstrated by the CPMR report, ‘The Impact of the CPMR 2015-

2020’ (CPMR, 2021), whose action had at least two important moments. In the first, the

1,8

3,5

4,8

5,2

6,3

6,5

7,2

7,5

012345678

Education

Tourism

Global agenda

Science and Technology

Agriculture

Acessibility

Climate change

Environment

Energy

Maritime Affairs

Cohesion Policy

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Accepting ultraperiphery: the role of the Conference of Peripheral Maritime Regions (CPMR) in the

territorial mobilization strategy of the Government of the Azores with the European Union

André Pimentel Garcia, Sandrina Ferreira Antunes

CPMR was able to underline, at the highest level, the importance of Cohesion Policy in

the post-2020 period. In the second, after several indications at a formal (European

Commission, 2018a, pp. 106-107) and informal (interview 2021e) level of drastic cuts in

Cohesion Policy, President Juncker expressed his support for this policy (European

Commission, 2018b). In terms of the Azores, the most emblematic recent example will

be exactly the negotiation process of the Multiannual Financial Framework 2021-2027.

Overall, all respondents point to the dynamic posture of the organization that contributed

to the EU maintaining a co-financing rate of 85% for the ORs (Official Journal of the

European Union, 2013: 396). Although the CPMR was not the only channel in which the

Azores acted, it is described by the GRAA interviewees as fundamental to the results

obtained. According to the assistant to the Regional Undersecretary of the Presidency for

External Relations between 2012 and 2016 and Regional Director for European Affairs

between 2016 and 2020 and the advisor for External Relations of the President of the

Regional Government of the Azores between 2012 and 2020 (interviews 2021a and

2021c), the EC's initial proposal envisaged a reduction in funds for the Azores, 70% of

the funding would be provided by European funds, the remaining 30% would be provided

by the region, which represented a decrease of 15 percentage points in relation to the

European funding of the Multiannual Financial Framework 2021-2027 (Official Journal of

the European Union, 2020: 468). This was effectively a success that added to the

maintenance of the OR envelope in the previous Multiannual Financial Framework.

The pandemic has also played an important role, but there was a two-year work of

contacts and conversation with the EC and the EP, which resulted in a fundamental

change in the EU's stance towards the substantial fund that finances the ORs the most,

according to the advisor for External Relations of the president of the Regional

Government of the Azores between 2012 and 2020 (interview 2021c). Nevertheless, as

mentioned by the Regional Undersecretary of the Presidency for External Relations

between 2012 and 2016 (interview 2021g), there is a use of sporadic opportunities in

several policy areas in terms of regulatory influence, especially in ensuring the mention

and respect for the statute of outermost regions, as well as other measures to mitigate

the added costs of insularity, which is why energy, transport and maritime policies are

also important.

Regarding financial mobilization, the most important areas have to do with the

environment in a broad way (graph 3): climate change (6.8/8), energy (6.5/8) maritime

affairs (6.5/8), environment (6.3/8). Cohesion policy appears in a less important position

compared to the prominence it has in regulatory mobilization. As the assistant to the

Regional Undersecretary of the 12th Government of the Azores (interview 2021b) points

out, when we talk about fundraising, we refer to “identifying sources of funding other

than those to which we would be entitled at the outset, for example, responses to calls,

Horizon Europe, which we compete with other regions”.

In this regard, the projects that the member regions integrate, given the nature of their

interests, stand out, in addition to the projects promoted by the consortia created within

the organization itself. As the advisor for External Relations of the President of the

Regional Government of the Azores between 2012 and 2020 explains (interview 2021c),

“these consortia are not exactly from the CPMR, they are from some of the regions that

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Accepting ultraperiphery: the role of the Conference of Peripheral Maritime Regions (CPMR) in the

territorial mobilization strategy of the Government of the Azores with the European Union

André Pimentel Garcia, Sandrina Ferreira Antunes

make up the CPMR (...). The organization [CPMR] assembles a consortium, typically 3 to

5 partners, applies as CPMR and, if it wins, the money is shared by all the regions”.

Graph 3 – Averages of the areas of financial mobilization ordered by the GRAA

interviewees. The scale used is from 8 (most important) to 1 (not important).

Explanation: In lilac, the conventional areas of activity of the CPMR. In green, the additional areas

suggested by respondents.

Source: Authors’ own

This information is also confirmed by the Assistant to the Regional Undersecretary of the

Presidency for External Relations between 2012 and 2016 and the Regional Director for

European Affairs between 2016 and 2020 (interview 2021b), who states that “these

regions can determine that the CPMR will keep a part of the financial envelope for its own

financing, to accompany the project, but it is not the core business of the CPMR. The

CPMR operates normally until the moment the consortium is formed”.

As we can see in Graph 4 below, some of the CPMR employees are only assigned to

projects, such as Interreg, because what they do all their time is to develop these

projects, they are the so-called project employees. Different from the above are policy

and project officers, who spend between 20% and 30% of their time on projects and the

rest on political issues, with a more regulatory bent. Cumulatively, the number of

employees who dedicate themselves to the projects reaches approximately 26% of the

total, although only about 10% do so exclusively.

At the CPMR, participation in Interreg programmes is also noteworthy, since the

organization's structure is based on Geographical Commissions. According to the

executive secretary of GC of the Islands (interview 2020e), the CPMR reached “critical

mass in terms of participation in some projects at European level” and was a partner in

about four dozen projects at the time of the interview, so it is relatively easy for the

CPMR to set up a consortium and conduct a project. In this sense, the assistant to the

Regional Undersecretary of the Presidency for External Relations between 2012 and 2016

and the Regional Director for European Affairs between 2016 and 2020 (interview 2021b)

confirms the primacy of the practice of regulatory mobilization over financial mobilization

by stating that: “( ..) although the participation of projects is important, the GRAA sought

above all to promote regulatory mobilization at the level of the CPMR'. And she adds that

“(..) as a rule, the regions that search for other [non-pre-allocated] funds where they

1,7

1,8

2,8

4,6

5,3

6,3

6,5

6,8

0 1 2 3 4 5 6 7 8

Education

Global agenda

Tourism

Science and technology

Agriculture

Accessibility

Cohesion Policy

Environment

Maritime affairs

Energy

Climate change

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Accepting ultraperiphery: the role of the Conference of Peripheral Maritime Regions (CPMR) in the

territorial mobilization strategy of the Government of the Azores with the European Union

André Pimentel Garcia, Sandrina Ferreira Antunes

have to do it in a competitive way, it is because they do not receive the structural funds

that we receive (...)”.

Graph 4 - Percentage of CPMR employees by function

Source: Authors’ own

However, as a final note, it should be noted that day-to-day practice presents 'grey

areas'. Sometimes, consortia can have a dual purpose: they can be an end in themselves

or they can be also an opportunity to prove certain political points (interview with the

advisor for External Relations of the 12th Regional Government of the Azores, 2021c), so

it is impossible to separate the two purposes of territorial mobilization, as shown in Figure

Figure 1 – Relationship between regulatory mobilization and financial mobilization at

project level

Source: Authors’ own

About the CPMR, check the website: https://cpmr.org/who-we-are/ acceded on 10 December 2021.

10,26%

15,38%

74,36%

Project employees Policy and project employees Other

Interreg, Horizon 2020/Horizon Europe,

European Fund for Strategic Investments, etc.

projects to prove political points

Financial

Mobilization

Regulatory

Mobilization

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Accepting ultraperiphery: the role of the Conference of Peripheral Maritime Regions (CPMR) in the

territorial mobilization strategy of the Government of the Azores with the European Union

André Pimentel Garcia, Sandrina Ferreira Antunes

Conclusion

The CPMR is important to the RAA because it enables networking, the importance of

which has been highlighted in gaining influence in regional mobilization in the EU

(Bomberg and Peterson, 1998; Hooghe and Marks, 1996, Tatham, 2008; Beyers and

Donas, 2014). On the other hand, this horizontal interaction between regions through

TEAs has received limited attention in the literature (Beyers and Donas, 2014).

This article aimed to identify the objectives behind the use of the TEAs, namely the CPMR,

by complementing previous research and focusing only and deeply on the strategy of

mobilizing the GRAA in the EU through the CPMR. The importance of the CPMR is

evidenced by being mentioned in several works (Bomberg and Peterson, 1998; Tatham,

2008; Rowe, 2011; Callanan and Tatham, 2014), with authors naming the organization

among peers able of exerting a significant presence at the level of EU mobilization. Of

these authors, the contribution of Antunes and Magone (2020) stands out, who used the

conceptual framework of Callanam and Tatham (2014) to study the general mobilization

strategy of regional authorities in Mainland Portugal (i.e. the Regional Coordination and

Development Commissions) and the Portuguese Autonomous Regions in Brussels.

By using this same conceptual framework, we intend to understand for what purpose(s)

the GRAA uses the CPMR regarding its regional mobilization strategy. From the beginning,

in line with Callanan and Tatham (2014), we assumed that, as an autonomous region,

the GRAA would privilege regulatory mobilization over financial mobilization, without

excluding the latter. Data analysis corroborated this hypothesis: regulatory mobilization

is the most predominant, reaching an average of 4.9 out of 5, while financial mobilization

reaches a value of 3.3 out of 5, although most respondents admit the strong connection

that exists between both objectives.

Regulatory mobilization is also the central area of action for the association. The essential

issue for GRAA is the maintenance of a strong cohesion policy. As an OR and a less

developed region, this factor is crucial for the development of the GRAA. The main focus

is on cohesion policy (7.5/8). However, opportunities are also probed in various policy

areas that could result in more advantageous frameworks for the GRAA, namely maritime

affairs (7.2/8), energy (6.5/8) and environment (6.3/8).

In terms of financial mobilization, the GRAA is mainly interested in areas that have to do

with the continuum of climate change (6.8/8), energy (6.5/8), maritime affairs (6.5/8)

and environment (6.3/8). In this context, the performance of the CPMR, in line with the

GRAA, is related to the formation of consortia for projects within the scope of Interreg,

Horizon 2020/Horizon Europe or projects financed by the EIB. These projects can be an

end in themselves or an opportunity to prove certain political points.

The main conclusion we draw from this study is that regulatory mobilization is more

prevalent in the representation of the GRAA through the CPMR in the EU than financial

mobilization. This mobilization strategy is mainly related to the cohesion policy and the

maintenance of positive discrimination for the ORs, particularly in areas related to

energy, the sea, the environment and accessibility. In this way, this article made it

possible to study a Portuguese Autonomous Region individually through the conceptual

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Accepting ultraperiphery: the role of the Conference of Peripheral Maritime Regions (CPMR) in the

territorial mobilization strategy of the Government of the Azores with the European Union

André Pimentel Garcia, Sandrina Ferreira Antunes

framework used by Callanam and Tatham (2014), Tatham (2017) at the level of regional

offices and local-based government associations and by Antunes and Magone (2020) to

explain the mobilization strategy of the Portuguese Autonomous Regions in the EU.

Finally, when considering acting in and through a TEA with regional base common

interests, this work can outline some research paths. On the one hand, the mobilization

objectives conceptualized by Callanan and Tatham (2014) can be used to understand the

dynamics of the TEAs. On the other hand, the literature lacks a deeper understanding of

the rationale for using financial mobilization in the service of regulatory mobilization.

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Accepting ultraperiphery: the role of the Conference of Peripheral Maritime Regions (CPMR) in the

territorial mobilization strategy of the Government of the Azores with the European Union

André Pimentel Garcia, Sandrina Ferreira Antunes

ANNEX

INTERVIEW GUIDE

PART I: The Territorial Mobilization of the 11th and 12th Governments of the Azores in the

1. What are the biggest challenges of the GRAA in terms of mobilization in the EU?

2. Why an EU presence is strategically relevant to the GRAA?

3. Indicate the regionally based mobilization channels in order of importance to the GRAA’s

strategy, with 1 being the most important and 3 being the least important.

· National channels

o REPER (Permanent Representation of Portugal to the EU)

· European channels

o European Commission

o European Parliament

o Committee of the Regions

o CPMR

o Representative Office in Brussels

4. Can you please justify your ranking?

5. Based on two possible mobilization purposes – for the purposes of influence or lobbying and

fundraising –, for what purpose does the GRAA use 3 main channels of representation, namely:

a) Committee of the Regions;

b) CPMR;

c) direct representation via the representative office in Brussels

6. What is the importance of REPER for the representation of the interests of the Azores in the

EU?

PART II: The participation of the Government of the Azores in the CPMR

1. When and how did the 11th and 12th GRAA first become aware of the mobilization opportunities

at CPMR level?

2. From 0 to 5, what is the importance of the CPMR for the pursuit of GRAA´s strategy? (0 being

not important and 5 being very important)

3. In which institutions do you mobilize through the CPMR? Rank in order of importance, with 1

being the least important and 4 the most important.

a. European Parliament

b. European Commission

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c. Committee of the Regions

d. COREPER

Would you add any? Which?

4. For what purpose do you use the CPMR?

a) to influence European legislation

b) to probe availability of financial transfers to the region

c) both

Assign a number from 0 to 5 (0 being not important and 5 being very important) to each one.

• To influence European legislation

• To probe availability of financial transfers to the region

5. When you use the CPMR to influence legislation, in which areas do you seek to act? Rate the

different areas of activity from 1 to 5, with 1 being the least important and 5 the most important:

• Cohesion

• Regional policy

• Energy

• Maritime

• Agriculture

• Mobility

• Education

• Global agenda

6. Can you give examples of influence of European legislation?

7. Can you give examples of fundraising?

PART III: Evaluation of the Presidency of the CPMR and balance

1. What does the CPMR represent for the Government of the Azores?

2. What advantages did the CPMR Presidency bring to the Azores?

3. Do you think that the fact that you belonged to and held the presidency of the CRMR helped the

Azores to fight insularity? If yes, in what way?

4. What were the main objectives of the CPMR presidency for the GRAA?

5. Bearing these goals in mind, what did they manage to do and what remained to be done?

6. How happy are you, from 1 (not at all happy) to 5 (very happy) with the mobilization potential

of the CPMR in terms of:

• Regulatory mobilization

• Raising European funds

7. Which of the following policy areas continued to receive your attention in terms of mobilizing to

influence European legislation?

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Accepting ultraperiphery: the role of the Conference of Peripheral Maritime Regions (CPMR) in the

territorial mobilization strategy of the Government of the Azores with the European Union

André Pimentel Garcia, Sandrina Ferreira Antunes

• Cohesion

• Regional policy l

• Energy

• Maritime

• Agriculture

• Mobility

• Education

8. Which of the following policy areas continued to deserve your attention regarding fundraising?

• Cohesion

• Regional policy

• Energy

• Maritime

• Agriculture

• Mobility

• Education

9. How has your level of satisfaction evolved over time? Has it been an ever-growing or up-and-

down experience?

10. And now that the Government of the Azores no longer has the Presidency of the CPMR, what

has changed?

11. Which other regions are particularly active in the CPMR?

12. Do you think you have learned from these experiences? In other words, do you think that the

CPMR has been a source of learning for the Government of the Azores?

13. Do you think that the CPMR has encouraged networking with other regions? If yes, which

regions have you networked with and in which areas of activity?

14. What benefits have the Azores reaped from this collaboration? Can you give examples?

OBSERVARE

Universidade Autónoma de Lisboa

e-ISSN: 1647-7251

Vol. 13, Nº. 1 (May-October 2022)

PORTUGUESE SCIENCE DIPLOMACY AND THE NETWORKS OF PORTUGUESE

PROFESSIONALS, RESEARCHERS AND GRADUATE STUDENTS ABROAD: FROM

THE ESCAPE TO THE CIRCULATION OF BRAINS

JOÃO MOURATO PINTO

jmouratopinto@gmail.com

Graduate and master in International Relations-European Studies by Coimbra University and

Sciences Po Bordeaux. Professor of diplomacy and phD student at Minho University (Portugal), he

has been studying the global action of the European Union, particularly in relation to Brazil and

South America. A collaborating member of the Centre for Research in Political Science at that

university, he has worked at the European Research Council (European Commission) and was the

President of the Erasmus Student Network in 2017-2019, where he worked to improve the

accessibility and quality of academic exchanges in higher education globally. His main research

interests are the European Union's External Action, Brazilian foreign policy, South American

regionalism, and diplomacy.

Abstract

Science diplomacy is a field born of the interaction between science and diplomacy. It arises

in a context of extension of multilateralism to new actors, including scientists, higher

education institutions, laboratories, companies, and cities. The Resolution of the Councils of

Ministers No. 78/2016 is the legal matrix of Portuguese science diplomacy, presenting it as

one of several pillars for the internationalization of science and technology in the country.

Among various actors identified by this resolution, the "Networks constituted by Portuguese

Professionals, Researchers and Graduate Students working abroad" have a high potential,

especially considering the synergies they can create with embassies, through science advisors,

higher education institutions and Portuguese cities. After a contextualization of science

diplomacy as a discipline and European and national practice, this paper contributes to this

debate through an exploratory reflection on the role of those networks in the

operationalization of Portuguese science diplomacy.

Keywords

Science diplomacy; European Union; Portugal; emigration; higher education.

How to cite this article

Pinto, João Mourato (2022). Portuguese science diplomacy and the networks of Portuguese

professionals, researchers and graduate students abroad: from the escape to the circulation

of brains. In Janus.net, e-journal of international relations. Vol13, Nº. 1, May-October 2022.

Consulted [online] on the date of the last visit, https://doi.org/10.26619/1647-7251.13.1.7

Article received on May 3, 2021 and accepted for publication on March 3, 2022

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Portuguese science diplomacy and the networks of Portuguese professionals, researchers and graduate

students abroad: from the escape to the circulation of brains

João Mourato Pinto

PORTUGUESE SCIENCE DIPLOMACY AND THE NETWORKS OF

PORTUGUESE PROFESSIONALS, RESEARCHERS

AND GRADUATE STUDENTS ABROAD:

FROM THE ESCAPE TO THE CIRCULATION OF BRAINS

JOAO MOURATO PINTO

Introduction

The notion of "science diplomacy" refers to a set of practices that cross the sectors of

research, higher education, science, technology, and innovation, with the area of

international relations, identifying points of common interest and instigating their

collaboration in shared challenges. Its wide-ranging nature has resulted, on the one

hand, into some conceptual confusion and, on the other, in constant innovation in its

application.

This conceptual and pragmatic expansion has led some organizations to reflect on their

contribution to science diplomacy. Among these, are the "networks consisting of

portuguese professionals, researchers and graduate students abroad", which began to

emerge over a decade ago spontaneously by Portuguese emigrants. The Resolution of

the Council of Ministers No. 78/2016, which serves as a legal framework for science

diplomacy in Portugal, assigns them a role of "interlocutor" between the Government and

Portuguese embassies and emigrated researchers. This role of dialogue is an innovation

that other countries have also sought to exploit and which, with the right strategy, can

become a cornerstone of the future exercise of science diplomacy.

This work is part of a briefing paper written for the Ministry of Foreign Affairs (MNE) and

the Ministry of Science, Technology and Higher Education (MCTES), and discusses the

role these networks can play in the broader context of Portuguese science diplomacy. It

looks at its potential to bring together graduate emigrants, especially those working in

the scientific field, to contribute to replacing the term "brain drain" with "brain

circulation". Also, it claims that networking and abroad, either temporarily or

permanently, is an intrinsic condition for the scientific profession, affecting especially the

most peripheral and resourceless countries. It is reasoned that such networks can serve

as points of contact between the community and homeland, helping to integrate them

into the new environment, while keeping them informed about and promoting their

involvement in science made by the Portuguese, in Portugal and the rest of the world.

This horizontal (between pairs) and vertical (with the country) interaction allows both

Translated by Hugo Alves.

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diplomacy and Portuguese science to include in their action the contribution of national

scientists abroad, either through the knowledge obtained, or through the networks they

are part of.

The study begins by highlighting the main aspects of the debate on the definition of

science diplomacy, including its relationship with the so-called brain drain, then visits its

implementation by the European Union (EU). This outline is followed by a more detailed

examination of the Portuguese case, particularly to the dynamics most relevant to the

networks concerned. Its role – present and potential – is articulated with that of science

advisors, Higher Education Institutions (IES) and cities, seeking to follow multiple angles

in the life of a researcher. Finally, ideas for the future are presented to contribute to the

academic and practical debate around the role of science diplomacy in diplomacy and

science. Foreign examples are introduced as illustrations of the arguments.

1. Science as a branch of diplomacy (and vice versa)

Science diplomacy is a relatively new, but rapidly evolving topic. It is part of a framework

for the change of multilateralism, today also characterized by a progressive extension of

diplomatic practices to other sectors of society. These new practices do not replace

traditional diplomacy, which remains one of the most important foreign policy

instruments of countries, particularly in the relations between States. Nevertheless, they

are part of a gradual evolution of diplomacy, where national and international issues are

intertwined in the era of globalization and where their use is not exclusive to

governments.

Among the new expressions of diplomacy, science diplomacy is particularly

comprehensive. Roughly speaking, it is defined as a "link of practices" (Mendonça, 2016)

or a "diffuse interaction" (Aranda, 2019) between the foreign affairs of a State, which

are generally coordinated by the ministries of foreign affairs, and its scientific and

technological policy, which is managed by the ministries of science. It is about

"developing the national environment of research and entrepreneurship while

[projecting] in the international arena the strategic interests of the community of

reference actors" (Mendonça, 2016). The intersection of two such wide-ranging fields

generates a myriad of different approaches and angles assumed by science diplomacy in

each State. As such, there is still no complete definition of the concept, or a single model

that can be easily replicated (Aranda, 2019).

One of the most consensual definitions was created by the Royal Society (United

Kingdom) and the American Association for the Advancement of Science (AAAS) in 2010,

in their "New Frontiers in Science Diplomacy". It is based on three pillars: diplomacy for

science, when diplomacy facilitates the conception of scientific partnerships; science for

diplomacy, when science enables the growth of diplomatic relations; and science in

diplomacy, when foreign policy objectives are informed by scientific advice. Since then,

these terms combined have been used by various institutions as a shared understanding

of an activity still under development. More recently, the EL-CSID

project, funded by

Horizon 2020, proposed a fourth pillar called diplomacy in science, to incorporate

European Leadership in Cultural, Science and Innovation Diplomacy - el-csid.eu.

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diplomatic practices in science. According to EL-CSID, it may be easier to repair the

fragmentation of society, combat skepticism about science and increase its impact on

social debates and professionalize the dialogue between scientists and policy makers

(Van Langenhove, 2021).

To achieve these goals, science diplomacy makes use of various tactical and operational

tools. At the strategic level, joint declarations are issued between States, regions or

institutions, and the seat in international organizations is used to highlight the importance

of a given scientific agenda. The operative level is based on international collaboration

agreements, such as CERN

or SESAME

. The latter brings together scientists from

various Middle Eastern States, including some without diplomatic relations with each

other, creating an environment conductive to the success of "science for diplomacy". The

Intergovernmental Panel on Climate Change (IPCC) is another major example (Van

Langenhove, 2016), as it gathers a multidisciplinary group of scientists and diplomats

responsible for monitoring the Paris Agreement on climate change, thus being an

illustration of "science in diplomacy". Other working tools include advisory councils on

science and technology, allocation of science advisors to embassies, inclusion of foreign

scientists in national science and technology funding schemes, academic exchange

programs, international scientific collaboration programs, among others.

The implementation of science diplomacy should also include campaigns promoting its

results and dedicated training programmes, these being perhaps the least worked fields

(Van Langenhove, 2016). The lack of a career of science diplomacy hinders the creation

of a formative offer since the subject tends to reside mainly in oral discourse as a

reference to practices that combine science and diplomacy. Added to this difficulty, is the

fact that some scientists do not consider that part of their work can be labelled as a type

of diplomacy. Consequently, not all science professionals are trained to acquire the skills

necessary for diplomatic practice and not all diplomats know science (as an abstract field)

with the necessary depth. Issues such as these have increased criticism around the lack

of mechanisms for assessing the effectiveness of science diplomacy (Flink, 2021).

The application of these tools requires the joint work of highly qualified human resources

in various sectors. The S4D4C

project identified five groups of actors relevant to science

diplomacy: the government sector (including subnational governments and public

agencies); the intergovernmental sector and supranational organizations; the private

sector (from start-ups to multinationals), universities and scientific research sector

(including national academies, research councils or prominent individuals); and the civil

society sector (Elorza et al., 2021). One of the main difficulties of science diplomacy is

the complex coordination of so many actors. According to the conclusions of S4D4C,

there is a direct relationship between the level of effectiveness of this coordination and

the scope of a State's science diplomacy.

The mandatory inclusion of political and diplomatic actors is one of the main

characteristics that distinguishes science diplomacy from international scientific

collaboration in general. Science diplomacy is a weighted result between science and

political priorities, a coexistence that is not always harmonious, as "science represents

European Organization for Nuclear Research.

Synchrotron-Light for Experimental Science and Applications in the Middle East.

Using Science for/in Diplomacy for addressing global Challenges "s4d4c.eu.

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‘objectivity’ and ‘truth’, [and] diplomacy represents ‘interest’ and ‘commitment’"

(Mendonça, 2016). Some scientists fear that science may be instrumentalized by the

realpolitik, especially considering science diplomacy is primarily a branch of diplomacy

and, therefore, may be subject to logics potentially adverse to science (Muller, 2021).

Countries such as the United Kingdom (UK) and China, and even the EU through Horizon

2020-funded projects, have increased their investment in science, aiming to expand their

soft power, i.e., their ability to attract and influence international relations. Although the

narrative around science diplomacy is mostly positive, emphasizing words like

"cooperation" and "universality", the practice shows that this will not always be the case

and that there is always another side of the coin. Today, science diplomacy also reflects

logics of national interests and power dynamics, a trend accelerated by the COVID-19

pandemic (Fägersten, 2021).

Effective science diplomacy can have yet another perverse effect. By attracting to a given

country the best global talents, it can contribute for both the enrichment of a State and

the impoverishment of others. These movements tend to agglutinate in major scientific

and technological centers worldwide, feeding a vicious circle of perpetuation of the

imbalances that are at the origin of this same emigration. Science diplomacy can

contribute to the perpetuation of migratory dynamics between centers and peripheries.

On the other hand, through the implementation of networks of professionals and

researchers abroad, science diplomacy also offers States the possibility to stay connected

to their brains "on the run", and these can contribute to the development of their country

from a distance. Due to the hybrid nature of cooperation and competition of science,

permanent or temporary emigration is intrinsic to the scientific profession. Through its

tools, science diplomacy offers solutions to the breaking of the vicious circle, contributing

to the expression "brain drain" replacement by "brain circulation", that is, the notion that

researchers – national and foreign – have phases of their careers inside and outside the

country and that both situations can add value to national science. This motion

contributes to a country's science diplomacy gaining and distributing influence in

decision-making processes in international organizations. By promoting the link to the

home country, such networks can play an important role in correcting imbalances,

helping to ensure that science diplomacy is not a zero-sum game.

To accelerate the advancement of the implementation of science diplomacy strategies in

the world, in its final report, EL-CSID proposes a set of recommendations (EL-CSID,

2019). Firstly, it points to the need for greater theorization on the subject, especially in

connection with the theories of International Relations, and based on case studies on

successes and failures of science diplomacy. Secondly, the exchange of good practices

should be fostered, especially between scientists and other professionals, as well as

communication between them and policy makers. Thirdly, the investigation states that

scientists should be more attentive to the consequences of their work in international

relations, working on networks with an impact on science diplomacy. Finally, it is

recommended that policy makers monitor this activity, incorporating it into their work

and rejecting political blockages to the advancement of science.

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2. Science diplomacy of the European Union

In June 2015, Carlos Moedas, then European Commissioner for Research, Science, and

Innovation, in a speech addressed to the European Institute in Washington DC, said that

"science diplomacy presents an unparalleled opportunity to address today’s political,

demographic and environmental challenges through language and the universal

expression of scientific endeavor" (Moedas, 2015). The following year, the EU Global

Strategy, the guiding document for European external action, indicated science

diplomacy to resolve conflicts. Since then, EU has outlined six general objectives for its

science diplomacy: to establish a free environment for scientists; to agree on the

principles of scientific cooperation; to promote the capacity of cultural and science

diplomacy in the context of its external action; to connect other foreign policy strategies

to science diplomacy; to increase cohesion between member States; and to understand

the role of actors in science diplomacy, some of which may be more strategic if left

independent (Fägersten, 2021).

In this sense, EU has been including science diplomacy in some of its programmes and

instruments. This is visible in the work of institutions like the European Research Council

(ERC) or the Joint Research Centre (JRC) and in programmes such as Horizon 2020, the

Marie Sklodowska-Curie Actions, or Erasmus+, which – including its Jean Monnet actions

– receives direct funding from the European External Action Service (EEAS), to extend

the role of the education sector in European external action. More recently, EU has

integrated alumni from these and other programmes into its diplomatic strategy to create

networks of alumni "ambassadors" of the European cause (Ferreira-Pereira and Mourato

Pinto, 2021). The Euraxess network, which consists of more than 600 information points

in 42 European countries with several links to other parts of the world, is another central

tool in the European strategy for the area.

Horizon 2020 has provided the creation of the EU science diplomacy cluster (science-

diplomacy.eu), which consists of three sibling projects: EL-CSID (finished in 2019);

S4D4C (completed in 2021), which has created a free virtual course open to the public;

and InsSciDE

(ending in 2022). In 2019, the communities boosted by these projects

launched the "Madrid Declaration on Science diplomacy", with the aim of fostering the

conduct of science-informed external policies, increasing the productivity of international

relations, and expanding the capacity to face global challenges. The Madrid Declaration

argues that science diplomacy must have citizens at the heart of its action and must be

able to show results frequently. This community has been very active in creating

proposals for EU science diplomacy, calling for the EU to encourage the training of its

member States, foster the creation of a European community of professionals in this field

and make a stronger link between science and tackling against global challenges

(Melchor, Elorza, Lacunza, 2021). In 2021, this cluster was transformed into the EU

Science Diplomacy Alliance, which offers training and advice opportunities, to form a

European community of science diplomacy. It is a challenging task, considering that the

field will be fractured in thematic areas, such as energy, water, health, and others. The

Inventing a shared Science Diplomacy for Europe - insscide.eu.

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focus should be the creation of spaces for the exchange of ideas and the provision of

training opportunities (Hartl, 2021).

The EU action is also based on a network of thirteen scientific advisers distributed around

the world and coordinated from Brussels by the Strategic Forum for International

Cooperation in Science and Technology (SFIC), a collaboration between the EEAS and

the Directorate-General for Research and Innovation of the European Commission

(Council of the EU, 2016). They are allocated to countries of strategic interest to the EU

the most recent being created in 2020 in the UK, following Brexit

. The advisers promote

EU research programmes to increase their international profile and foster collaboration

between member States' advisers by organizing monthly meetings (Ruffini, 2021a). As

for SFIC, it is equipped with a team specializing in science diplomacy, which launched in

September 2020 the working paper "Anchoring Science Diplomacy in Horizon Europe –

Developing Specific Subjects and Activities". This document stresses the need for greater

connection between Horizon Europe and the European strategy for science diplomacy,

with the desire to create greater synergies between different policies, as reflected in the

2016 EU Global Strategy. The Horizon Europe Strategic Plan 2021-24 dedicates a chapter

to international cooperation, highlighting the role of science diplomacy.

These initiatives are also an EU contribution to the reform of multilateralism. They aim

to make it more inclusive through the participation of non-state actors and disengaged

from national logic (Muller, 2021), and to strengthen the mechanisms for solving

transnational challenges, including global commons, such as climate change (Van

Langenhove, 2016). The Union wants science diplomacy to increase its soft power and

the capacity for action as an international actor. Overall, science diplomacy serves to

renew the EU's image by adding the idea of an environmentally sustainable continent

based on a development model based on science and technology, to the original peace

project (Muller, 2021).

3. Portuguese science diplomacy

Portuguese science diplomacy was defined by the Council of Ministers Resolution No.

78/2016 and stated that "it must be understood as the coherent and systematic use of

resources and initiatives in the areas of science and technology, in the framework of

Portugal's European and foreign policy, to pursue the purposes of this policy and, namely,

the promotion of the national image and interests, opportunities for knowledge,

communication and reciprocal collaboration between the country and other States,

people's contacts and public diplomacy". Although this definition has a one-way

understanding, looking mainly at the contribution that science brings to Portuguese

diplomacy, the whole resolution presents several actions aiming to internationalize

Portuguese science through greater interaction with the country's foreign policy. To

create a "policy of internationalization of higher education and science and technology",

this internationalization enhances scientific and technological research in Portugal,

contributes to cooperation with third countries and is a vehicle for "support to consortia

Canada (open 1977), United States of America (1980), Australia (1988), China (1991), Russia (2000), India

(2001), Saudi Arabia (2002), Japan (2002), Brazil (2008), Ethiopia (2013), Korea (2014) and Egypt (n.d.).

No information on the nationality of the/a counselor/a.

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and strategic partnerships that affirm the country and its natives in Europe and the world,

and attracts qualified human resources". A greater relationship with faculties and

scientific communities abroad is also an intention.

This set of objectives will give science diplomacy a multidisciplinarity that is difficult to

implement. In this sense, a close collaboration has been created between MNE and

MCTES and some competencies are delegated to Secretariats of State of the Portuguese

Communities, Internationalization and Science, Technology and Higher Education. The

coordination of implementation on the ground is largely in charge of the Foundation for

Science and Technology (FCT), the National Agency for Scientific and Technological

Culture (Living Science), the National Innovation Agency (ANI) and the Agency for

Investment and Foreign Trade of Portugal (AICEP). The Portuguese diplomatic corps

monitors the development of the theme in the respective countries, organizing events

for scientific dissemination and stimulating local communities of Portuguese scientists.

There is also the role played by the "networks of Portuguese professionals, researchers

and graduate students working abroad", described in the next segments.

3.1. Networks of Portuguese Professionals, Researchers and Graduate

Students working abroad

According to Eurostat (2019), while 10.8% of the Portuguese live in other EU member

States, only 1.1% of Spaniards do so. Despite the socio-economic reasons that often

motivate emigration, the Portuguese diaspora, including lusodescendants, is one of

Portugal's main assets abroad. To encourage their (re-)approach to the country, the

resolution aims to promote the creation of "Networks made up of Portuguese

Professionals, Researchers and Graduate Students working abroad", acting as "priority

interlocutors of the central services of MNE and MCTES, as well as the diplomatic and

consular network, with a view to representing and promoting Portugal’s interests and

image in those countries" (Presidency of the Council of Ministers, 2016). The

dynamization of this "academic and scientific associativism" is under responsibility of the

Secretariat of State for the Portuguese Communities, and it is FCT’s concern to stimulate

the relationship with the Portuguese scientific diaspora, attracting it to employment at

homeland. There are currently seven associations: AGRAFr (France), AGRAPS

(Switzerland), APEI Benelux (Belgium, Netherlands, and Luxembourg), ASPPA

(Germany), PAPS (United States of America and Canada), PARSUK (United Kingdom),

Nordic SPOT (Denmark, Finland, Iceland, Norway, and Sweden). They arise from the

capacity of self-organization of the Portuguese community, some of which precede in

several years the publication of Resolution No. 78/2016. Although without homogeneity,

its work is done in coordination with Portuguese embassies. There is also a still meager

involvement with the respective councilors of communities; FCT has formal cooperation

protocols established with some, and the objective is to extend them to all. The protocol

with PARSUK has resulted in the creation of a scientific council formed by the Portuguese

scientific diaspora in the UK.

The events organized by these associations, which are not limited to science diplomacy,

include the promotion of Portuguese IES among their communities, organization of

scientific debates in formal and informal contexts, online and offline, dissemination of the

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activities of Portuguese communities beyond the scientific world, etc. For example,

PARSUK and FCT collaborate in the organization of an annual competition to support

scientific mobility between Portugal and the UK, called the Bilateral Research Fund, which

obtains hundreds of applications for an overall funding of €15,000. APEI Benelux, on the

other hand, develops an annual activity to disseminate Portuguese IES to Portuguese

secondary school students at the European School in Brussels, attracting them to the

Portuguese higher education. Once a year, all organizations collaborate in the

organization of GraPE – Forum of Portuguese graduates abroad, looking to promote

discussion among professionals residing in the country and abroad. In its ninth edition,

the event attracted several public and private institutions, including two ministers and a

former European Commissioner; it is likely to become a showcase of research carried out

by Portuguese around the world.

Born from associativism, these networks have the potential to give Portuguese

researchers abroad greater ownership over Portuguese science diplomacy in their host

country, contributing to the term "brain drain" being replaced by "brain circulation". For

this to happen, Portuguese institutions must be aware of both the potential and

limitations of associativism, integrating it appropriately into Portuguese science

diplomacy. Voluntary work cannot replace the professional and should be subject of

appropriate recognition and appreciation by the responsible entities. Plus, the acquisition

of a global scale is dependent on centralized coordination, which must identify synergies

between these networks and embassies, through science advisors, IES and Portuguese

cities.

3.2. The Science Advisor

Council of Ministers Resolution No 78/2016 introduced the figure of the "Science Advisor",

trying to centralize information on a single professional, responsible for "promoting

scientific employment" (Presidency of the Council of Ministers, 2016). After the

appointment of FCT and under the responsibility of main embassies, science advisors

may be an addition to economic advisors, forming a team with great potential for

attracting investment and knowledge to Portugal.

International examples: the various forms of the science advisor

Germany organizes international years of science to give visibility to bilateral

scientific relations with a theme country for a year. Switzerland has Swiss outreach

homes abroad, which are its own institutes based with major global scientific and

technological hubs such as Silicon Valley, New York, or Shanghai. Denmark has

appointed a representative for Silicon Valley-accredited technology and Austria has

created the Office of Science and Technology in Washington DC. Spain has set up

a network of science diplomacy in Madrid that builds on the dynamic of contact

between the officials of embassies accredited in the city. Through this network, it

disseminates its information and obtains some from other countries. France has the

Agence Nationale de la Recherche, which compiles and disseminates information

through its network of science advisors placed in its embassies. This information is

of interest to French public authorities, private companies, research laboratories,

and all those linked to investment in science. The UK created the Science and

Innovation Network, mobilizing around 100 professionals to work on eleven

thematic programmes located in forty countries.

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While graduate associations may play the role of boosting their peers, their work is

limited by their volunteering status, and they cannot implement government strategies.

Through their set of skills, science advisors will be able to play this role by supporting

FCT, embassies and networks in the local implementation of science diplomacy. Despite

their potential, and although there are professionals seconded to perform some of these

tasks, Portugal did not name any science advisor.

3.3. Higher Education Institutions

IES are one of the fundamental axes of science diplomacy, whether for their central role

in higher education, research, innovation, business liaisons, or the promotion they

provide to the cities that host them. They have the unique ability to bridge science and

technology with education and youth. These characteristics make universities active and

passive actors of diplomatic action; sometimes they speak of about "higher education

diplomacy" (Ferreira-Pereira and Mourato Pinto, 2021; Ruffini, 2021b).

However, analyzing articles on the role of IES in science diplomacy, many of these have

chosen to remain on the sidelines, possibly for reasons of political independence and

universality of knowledge, leaving the emphasis on researchers and student flows. The

most recent debates have focused on models of independent involvement of IES in

science diplomacy. From a national perspective, these include policies attracting foreign

students, training professionals in science diplomacy, managing alumni networks, and

using European funds to increase their influence and contribute to national soft power.

From a more global perspective, they can contribute to greater academic knowledge

about science diplomacy, form frameworks for international organizations, promote the

adoption of multidisciplinary approaches in diplomatic issues, or be vehicles of

international cooperation through networks of universities (Ruffini, 2021b).

The internationalization of Portuguese IES has grown in Portugal in the last decade and

has resulted in a positive balance in the international flow of higher education students;

there are more foreign students in Portugal than the other way around. Almost half of

them come from Lusophony, which is explained by cultural ties and academic cooperation

agreements between IES and governments of Portuguese-speaking countries. The

UNESCO Science LP (Portuguese Language) Center has been important in this context

through the offer of training and doctoral scholarships to students from Portuguese-

speaking African Countries (PALOP). On the other hand, almost half of Portuguese

students abroad are distributed across the UK, France, and Spain (UNESCO, 2019).

FCT plays a central role in this area by training and financing national IES and creating

partnerships with foreign entities. Among several examples, stands out the initiative

GoPortugal – Global Science and Technology Partnerships

, that promotes collaboration

between Portugal and foreign higher education institutes of international reputation. In

2017 there were almost 55,000 researchers in the country, of which 4,647 (8.4%) were

foreigners. Brazil continues to emerge as the main country of origin (27.1%), while

PALOP countries have a lower representation, not reaching 6%. European countries are

http://www.fct.pt/apoios/cooptrans/goportugal.phtml.en.

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the main source of the income, manly Spain (14.8%), Italy (9%) and Germany (4.1%)

(DGEEC, 2019).

The growth potential of the European public is particularly important, especially in view

of the EU's plans for the sector through the allocation of €95.5 billion to Horizon Europe

in the period 2021-2027. Portugal has gradually increased its capacity to raise and

execute these funds, having been a net recipient of Horizon 2020 (PERIN, 2022: 3).

Portugal network in Europe Research and Innovation Network (PERIN), launched in early

2021, sets out the objective of "attracting around €2 billion of EU funding in the areas of

Research and Innovation" (PERIN, 2022: 2) over the duration of Horizon Europe. For

that, it will be necessary to mobilize the country's scientific community, while looking at

the opportunities created by the European Research and Education Areas and "European

Universities". Also important are regionalized initiatives, such as the IACOBUS Program,

signed in 2014 between IES of Northern Portugal and Galicia, Spain, to exchange

employees, including scientists. In seven editions, the program has funded more than

1,000 research projects in the Galicia-North of Portugal Euro region (CCDR-N, 2021).

The investment and attention paid to the internationalization of Portuguese science may

result in an increasing number of researchers in the country, whether domestic or foreign.

Inherently to their profession, it is expected that they emigrate on a temporary or

permanent basis, to integrate other teams and projects. Currently, IES develop their

strategies of involvement of their alumni in isolation, providing them with information

and offers. However, this model faces difficulties, as research is based on several

institutions, laboratories, companies, etc.; the alma mater is only a chapter in the career

of a researcher and graduate. Both the "brain circulation" effect and the impact of

investments can be multiplied through an international monitoring strategy of national

alumni, framed by the strategy for science diplomacy, which include Portuguese and

foreign graduates from national universities. Due to their insertion in scientific

associativism and their horizontal structure, the networks can be the cornerstones of this

strategy.

Soon, IES will also be challenged to look at their school and formative offer in the context

of science diplomacy. A study of the S4D4C project (Melchor, Elorza, Lacunza, 2021)

recommends the creation of mixed training programs for scientists and diplomats,

equipping them with the skills needed for this field. The curriculum of these programmes

should follow national priorities, but their implementation should include as many face-

to-face sessions, as distance ones, to include emigrated Portuguese scientists more

easily.

International examples: training programs in science diplomacy

The University of Warsaw has an academy for science diplomacy and Barcelona's

SciTech DiploHub offers training on the subject. Zurich's ETH works closely with Swiss

science advisors, creating a direct link between national science diplomacy and

students. The American Academy for the Progress of Science (AAAS) and The World

Academy of Sciences (TWAS) offer in Trieste, Switzerland, a training program for

trainers in science diplomacy. The Institute of International Relations of the University

of São Paulo, Brazil, organizes every year the São Paulo School of Advanced Science

in Science diplomacy and Innovation Diplomacy, which consists of five days of

intensive training.

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3.4. Cities

Cities are fundamental elements of science diplomacy; they centralize the triangle formed

by science, companies, and industry. Together, they form poles of attraction for highly

qualified professionals, including foreigners and emigrated Portuguese scientists. The

country has several poles, like TagusPark (Oeiras), the Atlantic International Research

Centre (Angra do Heroísmo), or the Braga-Guimarães axis, which includes the Iberian

International Laboratory of Nanotechnology. Cities such as Covilhã, Coimbra or Évora,

where the weight of students is disproportionate, but also Porto, Lisbon, or Aveiro, are

very important for national science diplomacy. In all these examples stands out the

partnership between municipalities, IES and local companies, favorable to for the setting

of highly qualified human resources. Science diplomacy can serve to strengthen this

relationship by contributing to talents fixation and attracting foreign direct investment,

including in internationally little-known regions. For this reason, the Secretary of State

for the Valorization of the Interior is involved in this dynamic.

International examples: Barcelona SciTech DiploHub

The Barcelona case is paradigmatic, because it is an example of "paradiplomacy", that

is, international relations led by a government other than the national (Cornago,

2018). Under the municipality's coordination, "SciTech DiploHub" consortium was

formed, which includes several local higher education institutions, companies,

laboratories, and other entities relevant to the "first city to implement a strategy of

scientific and technological diplomacy". It also intends to map and boost a community

of "Barcelona alumni", which constitutes a "global network of scientists, technology

experts, and leaders in innovation formed (...) in the knowledge ecosystem of the city

and those currently residing abroad." Members of this network are considered

ambassadors of the city and are connected through a virtual platform. A monthly

newsletter keeps them informed about professional local offers and they are given a

professional advice program. Finally, "Barcelona Alumni" are encouraged to share

their stories, and personal affinities are fostered at exclusive events, like the

"Barcelona Alumni Glo bal Summit" and the "Barcelona Innovation Days", which are

decentralized to other worldwide cities, such as Boston, USA, or London, UK (SciTech

DiploHub, 2021). In the case of Barcelona, the involvement of the municipality is a

key factor for the success of the platform.

In a context of permanent circulation of qualified professionals, both cities and IES are

simultaneously points of origin and arrival. This dual condition makes the follow-up of

the careers of these professionals a difficult task, where Portugal has already taken

important steps. One of the main examples is the Global Portuguese Network (GPS),

created in 2016 because of a partnership between Aveiro University, Viva Science

Agency, Francisco Manuel dos Santos Foundation, Altice company and Portuguese

networks abroad. Quickly, there were more than 4.300 people on the platform in 126

different countries, who benefited from a newsletter, a search engine that finds

Portuguese colleagues all over the world, and the possibility of participating in an

exclusive annual event. Users can enter information about their professional

achievements and share opportunities and opinions. The associations of graduates have

reserved spaces in the platform, from which they can disclose important information only

to Portuguese residents in their countries. The GPS platform currently has partnerships

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with television channels, newspapers and podcasts, and members are invited to speak

publicly on the most varied topics. However, despite its success, the growth of the

platform has been slower in recent years. While from the user's point of view the platform

is at the state-of-the-art level, after the first years of mapping the Portuguese scientific

diaspora, there is a need to draw up an equally ambitious plan for potentializing this

information, particularly in the context of science diplomacy.

International examples: THE EU Alumni

To achieve objectives like those of the GPS Platform, the EU is conducting the EU

Alumni Engagement Initiative pilot project. It is funded by the European External

Action Service and aims to form a community of alumni based on peer relationships.

The community is locally energized by the Erasmus alumni networks and Marie Curie

actions and by EU delegations. The goal is to create channels through which EU can

share information and make contributions to local strategies. Communication is done

through a newsletter and online and offline events. In addition, EU invites alumni of

academic exchange programmes to represent it both at its Study in Europe events

and at major international higher education fairs (NAFSA, EAIE, etc.). While EU

professionals are dedicated to building partnerships with other organizations and third

countries, alumni share their personal history in these events to attract them to

European programmes.

4. Ideas for the future

Portuguese science diplomacy is still taking its first steps and as there is neither a

complete definition, nor a single model for its implementation; the options for the future

are many. This list presents some ideas, for the operationalization of Portuguese science

diplomacy.

I - National strategy for science diplomacy: the potential for greater

coordination and more synergy

After the publication of the legislation in 2016 and the first years of experimentation, the

current moment may be ideal for the creation of a strategy for Portuguese science

diplomacy. Considering the growing number of actors involved, the lack of a global

articulation strategy prevents its potential from being fully exploited. Such strategy could

increase the effectiveness of science diplomacy by identifying synergies guided by a

coordinating structure of most relevant actors. The latter does not have to be a new

entity since the law already provides for the division of responsibilities. The Madrid

Declaration introduces some of the most important principles on which this strategy can

be based.

The Portuguese networks abroad are among the entities that can add value to national

science diplomacy through greater coordination and establishment of national objectives

measurable and situated in time. Today, these seven organizations focus on activities

carried out in their territories, functioning as a global network almost only during the

GraPE Forum. Some of current activities are of interest to Portuguese science diplomacy

and others are the result of protocols with FCT, such as PARSUK's Bilateral Research

Fund, ensuring greater synergies with national priorities. However, the global network

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effect requires a centrally coordinated and operationalized strategy in conjunction with

other local actors, such as science advisors. International activities could be organized

more easily, such as promotional campaigns, cycles of decentralized common theme

events, among others. The design of this central strategy should include a total respect

for the independence of these associations and contribute to the strengthening of their

associativism. Besides having in mind Portuguese graduates and scientists in emigration,

it should also pay attention to the motivation of active members in the associations,

including them in the creation of strategies, in the coordinating structure and events and

programs that value their volunteer time. This will guarantee a better representation of

Portuguese graduate emigrants’ interests before the State and vice versa.

A national strategy could also contribute to rethinking the disparity in the graphic identity

and nomenclatures of different organizations. Its alignment, which should not neglect

associative independence, can instantly strengthen the global network effect of

Portuguese emigrated graduates, increasing the visibility of the country’s science abroad

and spreading that it takes place all over the world. To Portuguese scientists in transit,

it would be easier to find local associations and capture the attention of potential global

partners. This is, for example, the case of Spain, whose majority of associations are

called "Asociación de Científicos Españoles en [country]" and all an apple as their logo,

maintaining a greater graphic unit and thus increasing mutual exposure. The work of

global alumni associations from EU programmes, such as the Erasmus Student Network,

the Marie Curie Alumni Association, or the EIT Alumni, can serve as inspiration for this

approach.

As the network is widened, the greater the need for general coordination of its work,

either through the self-organization of associations, or the creation of an institutional

position dedicated to it. The activities organized by the networks of Portuguese

professionals and researchers abroad could better converse with others of Portuguese

diplomacy and science.

Such strategy could also explore a better articulation between GraPE events, Encontro

Ciência and the annual GPS network event. Since there is a partial overlap of target

audiences, the discussion of a national strategy for science diplomacy may identify

redundancies to be eliminated and synergies to be created, resulting in greater visibility

and less budgeting. By bringing various actors to the same location, the event could

include a segment dedicated to the discussion of science diplomacy strategies. This

occasion could serve to organize discussion panels on the expansion and consolidation of

networks abroad, the discussion of strategies for the involvement of lusodescendants, or

the deepening of the GPS platform. Finally, this joint work could result in greater funding

for Portuguese science diplomacy activities, notably through the Horizon Europe

programme or the COST

network, thus fuelling the implementation of the objectives of

the PERIN networkPNAID.

This plan should also include a better inclusion of Portugal in science diplomacy forums,

such as the new EU Science Diplomacy Alliance. Partnerships with science advisers from

the EU and their member States stationed in countries strategic to the national interest

should be encouraged. Portuguese cities also play an important role through their

European Cooperation in Science and Technology - cost.eu.

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international partnerships and talents attraction initiatives. Finally, science funding

entities will be able to hearten their principal researchers to include science diplomacy

actions in their projects. To this end, MNE will specify the objectives to achieve in this

field and, in collaboration with MCTES, agree on the priorities by science projects in

Portugal.

That should pay attention to the public communication of results and the need for cyclical

success evaluation, an aspect that would even be innovative in the global context and

could position Portugal at the center of the academic debate on science diplomacy.

II - Human resources at the heart of the strategy

Portuguese science diplomacy should be based on the principle of brain circulation,

concerned not only with attracting more talented professionals, but also in following-up

those educated in the country (Portuguese or not) throughout their career abroad.

Through their activity, Portuguese networks abroad promote socialization between

emigrants and Luso descendants and provide opportunities for the creation of more

networks. Some already offer newsletters and survival guides for Portuguese newcomers.

These services in several countries facilitate the maintenance of the link between Portugal

and the emigrated researchers. This monitoring can grow if there is dialogue with other

initiatives, such as the GPS network or the alumni programs of IES, which also offer

newsletters and events.

In the context of human resources, the creation of a specialized communication for

lusodescendants should be considered; the creation of a special contingent in access to

higher education, which reserves 7% of the vacancies for emigrants and their families,

was an important contribution to the increase of Portugal's attractiveness to this

population. The 600 vacancies filled in the 2020-2021 school year, out of a total of 3500,

show that the initiative was of interest and that there is room to grow. However, the

attraction of emigrant graduates and lusodescendants depends on other factors, such as

streamlining equivalences of academic and professional qualifications obtained abroad,

an objective that is now integrated in the National Diaspora Investment Support Program

(PNAID). Long-term measures should also pay attention to Portuguese teaching abroad,

which should be based on a clear distinction between Portuguese as a mother tongue

and as a foreign language. Today, lusodescendants are integrated into mixed classes,

where linguistic and sociocultural immersion may not have the necessary depth for their

greater future relationship with the country (CCP Europa, 2018). In the medium and long

terms, this and other challenges related to the inclusion of lusodescendants may weaken

the objectives of programs such as PNAID or PERIN network. Due to their physical

proximity and their model based on peer interaction, associations of graduates can also

play a relevant role here, especially if they receive appropriate training from the State.

III - Training in science diplomacy

Portuguese IES and research centers will be increasingly challenged to provide training

in science diplomacy aimed for young people who decide to pursue this career and

professionals who choose to specialize in a subject. While international centers can offer

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programs open to the Portuguese, equipping them with theoretical knowledge and

examples from other countries, only a formative offer accompanied by national

institutions can respond to the specific needs of the country. As training in science

diplomacy gains international interest, particularly from academics, the construction of

this offer may also consider the rest of Lusophony, as well as foreign researchers

interested in Portuguese diplomacy and science, thus supporting its internationalization.

The country may even consider the creation of a career associated with science diplomacy

by following a specific postgraduate training. This could be done by offering training in

the IES and/or by developing training programmes for diplomats and interested

scientists. This model could include training of both Portuguese graduate associations

abroad and researchers and managers of most relevant scientific projects. The creation

of a central strategy empowers modular programs in conjunction with existing programs.

In addition, IES should continue to focus on acquiring skills relevant to this career,

notably through more opportunities for the internationalization of their students and

researchers. PERIN network could contribute to this by intending to "triple the number

of students in mobility in higher education", especially through the Erasmus+ Programme

(PERIN, 2022: 2). Skills gained after an international experience can be exposed through

a reflection programme, as suggested by the Erasmus Skills

project, funded by

Erasmus+. As for incoming students, the institutions should promote their involvement

in the creation and active implementation of their internationalization strategies (Mourato

Pinto and Benke-Åberg, 2019), like in the Barcelona example. These involvements of

"internationalized" students contribute to the acquisition of important skills for science

diplomacy. Finally, IES vocational training support offices should receive instructions on

opportunities in the area to better advise interested pupils.

IV - Towards Team Portugal

Lastly, and because science diplomacy is only one of the expressions of Portuguese

diplomacy and science, the conception of a strategy for this field should have as main

objective the better integration of what Portugal already does. The aim is to create a

single "Portugal Team", which should meet periodically and aggregate the main actors,

such as the different advisers in embassies, the Councillors of the Portuguese

Communities, emigrated entrepreneurs, networks, etc. The latter could disseminate with

greater ownership the most relevant messages of Portuguese foreign science and policy

among its members, effectively involving scientists in national diplomacy and thus

expanding the reach of national soft power. For a country with limited resources,

geographically small and peripheral in the European context, the extension of soft power

through emigration has a potential for relative power gains that can be better explored.

The creation of a Portugal Team could facilitate the creation of a unique message,

increasing the effectiveness of the new expressions of the country’s diplomacy. It is about

building the governance of Portuguese science diplomacy, blurring institutional

boundaries, and promoting the interdisciplinarity and collaborative spirit that are

essential to it.

erasmusskills.eu sorry.

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Conclusion

Scientific production in Portugal is reaching a new level with a record number of

publications, registered patents, and brain circulation inside and outside the country. This

climate of innovation, associated with the growing number of students in higher

education, the potential of both diaspora and Lusophony and the possibilities opened by

European funds, make this the right time for a strong focus on science diplomacy. This

paper sought to identify some dynamics resulting from the implementation Resolution of

the Council of Ministers No. 78/2016, especially those most relevant to the networks of

Portuguese professionals and researchers abroad, to contributing to the debate on the

subject. It is useful a national strategy for science diplomacy that promotes academic

and scientific associativism of the Portuguese diaspora for supporting careers without

national barriers, but still connected to the country and contributing to its progress, even

from abroad.

Part of the future success of Portuguese science diplomacy relies on its ability to capture

its graduates, through IES, cities, and embassies. In all of them, networks abroad can

play a key role in combining formal and informal dimensions of international experience,

promoting a good integration of Portuguese out of homeland, and attracting foreigners

to investigate in the country. They are fundamental in this "circulation of brains" that

modern science promotes and in which Portugal has been involved. By keeping graduates

linked to homeland, Portugal may be able to capture more foreign direct investment and

increase its profile in international organizations. Through this strategy, the country can

contribute more actively to the definition of science diplomacy, clarifying practices and

discourses, creating communication strategies, and establishing dedicated careers.

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OBSERVARE

Universidade Autónoma de Lisboa

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THE DESECURITIZATION OF DRUG TRAFFICKING IN MEXICO UNDER THE AMLO

ADMINISTRATION

LUIS MIGUEL MORALES GÁMEZ

lmoralesgamez@gmail.com

PhD specialized on Security and policy on the drug trafficking combat in Mexico. Expert in

strategies for crime and violence prevention in Mexico. Lead researcher with numerous

publications focused in citizen security, police reforms with politically- sensitive awareness

(Mexico). In-depth knowledge of bilateral relations US-Mexico citizen security policies, conducting

several research projects in collaboration with US universities as a guest researcher. He has work

experience as a political advisor and auditor, project management in academic research projects,

and public policy strategic projects.

Abstract

The present paper analyzes, from the perspective of desecuritization theory, the manner in

which Andrés Manuel López Obrador (AMLO) changed the policy of the Mexican government

for tackling drug trafficking in the country from a military to a social approach. The aim is to

establish whether this strategy has been successful in comparison with the open war waged

against the drug cartels over the twelve years preceding the AMLO administration. Given that

this desecuritization strategy resulted from political decision-making rather than social

pressure, the analysis presented here focuses on the President’s position and the actions he

has taken.

Keywords

Securitization; desecuritization; drug trafficking; Mexico; violence; military.

How to cite this article

Gámez, Luis Miguel Morales (2022). The desecuritization of drug trafficking in Mexico under

the AMLO administration. In Janus.net, e-journal of international relations. Vol13, Nº. 1, May-

October 2022. Consulted [online] on the date of the last visit, https://doi.org/10.26619/1647-

7251.13.1.8

Article received on October 10, 2021 and accepted for publication on March 14, 2022

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The desecuritization of drug trafficking in Mexico under the AMLO administration

Luis Miguel Morales Gámez

118

THE DESECURITIZATION OF DRUG TRAFFICKING IN MEXICO

UNDER THE AMLO ADMINISTRATION

LUIS MIGUEL MORALES GÁMEZ

Introduction

On taking office, Andrés Manuel López Obrador (AMLO) changed national policy with

regard to drug trafficking organizations, deciding to exclude the Secretaría de la Defensa

Nacional (SEDENA or the Secretariat of National Defence) and the Secretaría de la Marina

(SEMAR or Secretariat of the Navy). The last two presidential administrations had

charged these two ministries with managing the threat posed by trafficking organizations,

a threat which remains foremost among the nation’s priorities.

From the election as president of Felipe Calderon, in 2006, until the end of the

administration of Enrique Peña Nieto, in 2018, one of the main security issues facing

Mexico has been the fight against drug trafficking organizations (DTOs). These previous

administrations dedicated significant national resources to this effort, with Calderon even

requesting support from the United States of America in the form of the Merida Initiative

(MI).

In their theoretical proposal on the securitization process, Buzan, Waever, and De Wilde

(1998) consider that the response, when a statesman or elite stakeholder declares

something or someone to be a threat to national security, demands that a variety of

resources be dedicated to responding to said threat. Both statesmen and elites must

consider the actions and resources that will be required by this response. In some cases,

society is aware of the threat when this securitization process is ongoing, supporting the

decisions made by both statesmen and elites, while in others, society is either oblivious

to or is not sufficiently informed of the threat as a result of said statesmen and elites

keeping this information out of the public domain (Buzan, Waever and De Wilde, 1998).

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The present paper analyzes both the shift, in responsibility for security, from SEDENA

and SEMAR to the newly established Mexican National Guard and the data corresponding

to the implementation of social programs for young people with the aim of reducing

violence and insecurity. It should also be noted that another aim of AMLO’s

desecuritization policy is also to eradicate corruption in public security institutions

alongside the rollout of scholarship programs and job training to prevent the recruitment

of young people by criminal organizations.

We will also analyze how AMLO proposed his desecuritization strategy by declaring “the

end of the drug war”, arguing that previous administrations’ declaration of war on the

DTOs had failed to resolve the threat and that the violence involved in this war had simply

incited more violence. His position is that DTOs are not a security problem in themselves

and are, instead, a symptom of economic and social injustice in Mexico. In light of the

foregoing, the present paper seeks to explore how this desecuritization policy reduces

crime, violence, and the threat posed to the State, comparing it to the securitization

policy applied by previous administrations, which involved direct armed confrontation

with drug traffickers.

Theoretical framework for securitization and the desecuritization

process

Security from a constructivist perspective, describe the process of securitization and how

it functions, as well as the role played by statesmen and the elites when publicly

identifying threats and channeling resources and actions to prioritize their policy agenda.

A securitization process involves identifying what statesmen and the elites consider as a

threat to national security and the actions that they are willing to take to tackle it (Buzan,

Waever and De Wilde, 1998).

Wolfers points out security can be either objective (when the threat is recognized as real)

or subjective (the threat is merely perceived), a distinction crucial to establishing national

security for the State, as it requires both an understanding of the perception of a threat

and an assessment of the evidence supporting this perception (Wolfers, 1962).

Successful securitization comprises three factors: the existing threat; the emergency

action taken to address it; and the effects of rules violations. Waever describes security

as a “speech act”, wherein an issue is presented as a priority that must be resolved by

taking action, thus enabling an agent to claim the necessity and right to use significant

measures and the resources they require. The main interest of this discourse is to

understand how a threat is publicly presented and identified as a security issue (Waever,

1996).

The public must discuss the existence of a threat in order to be able to legitimize the

measures and actions taken against it, which, once legitimized, can then be addressed

by the State. The absence of public acceptance would entail solely a securitization

movement rather than a securitized object. Securitization studies seek to understand

how to securitize, what objects (threats) to securitize, who (subjects) to securitize, why

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(the reasons) to securitize, under what circumstances to securitize, and the factors that

determine when securitization has been successful.

Desecuritization is “the shifting of issues out of emergency mode and into the normal

bargaining process of the political sphere”. The desecuritization process involves the

choice not to rely on public scrutiny of the threat (namely whether it is subjective or

objective) and is seen by said authors as the “optimal long-range option, since it means

not to have issues phrased as threats against which we have countermeasures but to

move them out of the threat-defense sequence and into the ordinary public sphere”

(Buzan, Waever and De Wilde, 1998: 4-8).

Waever points out that the inner circle, “the elite”, questions the actions of statesmen,

who try to reestablish order by either affirming that the threat is present or pretending

that nothing wrong has happened. However, in reality, circumstances are changed by

the presence of the threat and the new priority should be to establish the truth pertaining

to the situation faced by the State (Waever, 1995).

The present study focuses on the “speech act” conducted by AMLO, in which he

announced the end of the war against DTOs, arguing that there are alternatives solutions.

However, insecurity remains a problem that manifests in criminal violence, the constant

expansion of the DTOs’ operational capacity in Mexico, and the emergence of new

criminal organizations (Cattan, 2019).

In her paper Reconstructing desecuritization: the normative-political in the Copenhagen

School and directions for how to apply it, Lene Hansen points out how an issue can be

desecuritized, firstly by means of its relationship to politics, given that the securitization

of an issue is a political phenomenon. Secondly, an issue can be desecuritized in the

public sphere, which would be a much more political decision than simply politicizing the

issue, while, thirdly, via a collective decision, society decides to desecuritize an issue as

this would be more effective than securitizing it. Finally, Hansen invokes Waever’s

reflection about “détente” and how this concept forms the basis for desecuritization

(Lene, 2012).

Based on the research described above, the present paper posits that the public sphere

is a useful concept for explaining how Andrés Manuel López Obrador (AMLO)

desecuritized the governmental response to DTOs, which can be framed as a bargaining

process by means of which his government decided to downgrade a securitized

emergency to a desecuritized issue.

Hansen describes how a shift in focus from an emergency or threat to a bargaining

process conducted in the public sphere suggests a shift from the securitized (the issue

relates to a sphere of public policy that requires the allocation of resources or some other

form of communal governance) to the politicized (the state does not deal with the issue

and it ceases to be subject to public debate and decision).

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Image 1 – Analysis of theoretical discussion

Source: Author’s own

Boswell suggests a flow of ideas connecting public discourse and policy practice, while

the Copenhagen School sees the political sphere as a dynamic space in which actors seek

to justify their policies and destabilize those of their opponents. (Boswell, 2007).

The presidential election campaign and AMLO’s promises

As stated above, from the beginning of Felipe Calderon’s administration, in 2006, to the

end of Peña Nieto’s administration, in 2018, the principal security policy implemented in

Mexico had involved confronting the DTOs. The initial objective had been to reduce

violence on a national level and to prevent the DTOs from bringing their products into

North America, for which specific purpose the US government provided Mexico military

equipment and trained its military personnel (Astorga, 2015). While this US financial

support was known in Mexico as the Merida Initiative (MI), it was largely perceived in the

US Congress as simply a tranche of international aid to be approved year-on-year as part

of its budget.

In Mexico, this security policy resulted in continuous violence and deaths, at the hands

of both the DTOs and the State (which was now responding militarily), which was

exacerbated by endemic corruption and a flawed justice system that failed to prosecute

criminals. Therefore, the objectives of the MI shifted to promoting governmental and

institutional reforms in Mexico, including the judicial system, and strengthening the rule

of law (Cook, Rush, Ribando, 2008: 1-6).

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Although this financial assistance began in the last year of the administration of George

W Bush, it was continued by his successor Barack Obama, who stipulated that Mexico

needed to take more action to tackle the violence, stem the growth of the DTOs, and also

address the corruption observed in governmental institutions. However, these criteria

were not met, with the violence increasing year-on-year and the DTOs competing for

market share. (Camhaji and García, 2019; Infobae, 2019).

During the period discussed above, AMLO was a prominent political figure, having run

twice for the Mexican presidency and losing twice due to what he described as the

corruption within the electoral system, and one characterized by the news media as a

threat to national security. In his third presidential race, AMLO campaigned against a

major opponent - the flawed security policy pursued by the last two administrations,

representing two different political parties, the Partido Acción Nacional (PAN or National

Action Party) and the Partido Revolucionario Institucional (PRI or Institutional

Revolutionary Party).

Image 2 - Graph for homicides per year in Mexico

Data source: National Institute of Geography and Statistics (INEGI) (2020).

https://www.inegi.org.mx/sistemas/olap/proyectos/bd/continuas/mortalidad/defuncioneshom.as

p?s=est

During this campaign, AMLO set out how he was going to deal with violence and drug

trafficking from an alternative perspective, namely dealing with it as a social problem,

solving the causes that draw people into drug trafficking and identifying economic and

social alternatives for them. He proposed the removal of the military from the streets,

not only because it was never intended to be used for public security activities but also

because its constant human rights violations only increased the levels of violence. Finally,

8867

14 006

19 803

25 757

27,213

25 967

23 063

20 010

20 762

24 559

32 079

36,685 36 661

36 773

16972

5 000

10 000

15 000

20 000

25 000

30 000

35 000

40 000

2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021

Homicides per year in Mexico 2007- 2020

Homicidios por año de registro

Homicides per year

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he proposed an amnesty for those involved in the drug trafficking business, particularly

the poor (López, 2018: 105; Oré & Díaz, 2018).

By relating drug trafficking and violence in Mexico to social and economic problems,

rather than a threat to the State and government stability, AMLO was signaling a change

of perspective from that pursued by the last two administrations. He argued that the

violence used by the State to regain control over drug smuggling routes into US territory

was unacceptable, phrasing his approach as “abrazos, no balazos” (hugs, not bullet

wounds.

Once elected, AMLO’s policy position was enacted in the National Plan for Peace and

Security 2018-2024, which claimed that “…violence and insecurity involve the confluence

of a great number of factors, starting with those of an economic and social nature, such

as the lack of quality employment, the insufficiencies of the educational system, and

institutional breakdown…” (Gobierno de México, S/F: 2). The plan associated the

objectives of achieving peace and security with two main factors: the institutional

corruption that encouraged drug trafficking; and the need for both popular wellbeing and

social justice to be reinforced by the law.

AMLO’s scholarships and violence

Andrés Manuel López Obrador won the presidential election in 2018 with 53.19% of the

total number of votes cast, becoming the first presidential candidate to receive that level

of support in many election cycles, giving a clear mandate for him and his policy platform.

Despite this mandate, critics pointed out that the popular expectations this had raised

would not match the results achieved during his time in office (Rojas, 2018: 1-4).

The section on security in the National Plan for Development 2018-2024 states that the

new vision for security in the country, given the deficiencies in terms of employment and

education for young people, was going to “…remove the social base from criminality by

means of the mass incorporation of young people into education and work…” (Presidencia

de la República, 2019 (a): 11). The objective of this vision was to end the war on drugs

in the country.

As part of the promises made during the campaign, AMLO began by announcing the social

programs for students and young people under the rationale that this policy would best

garner initial popular support. In February 2019, months after being sworn in, he

announced, in a ceremony at La Plaza de las Tres Culturas (Square of the Three Cultures)

in Tlatelolco, Mexico City, the first of these scholarships program, Young People Writing

the Future, remarking that:

“…in our country there are 16 million young people living in poverty, imagine

if a criminal offers to employ them as the “hawks”, as they are known

colloquially, who inform [their employers] as to who is entering and exiting

the communities...” (Presidencia de la República, 2019 (b): 27).

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As discussed above, the new strategy was to fight drug trafficking socially rather than

militarily, the approach followed for the previous decade. From AMLO’s point of view, as

the root of the problem was the potential for teenagers to be recruited by DTOs and

drawn into criminal activities, if they were provided jobs and an education, they would

reject the advances of the DTOs as they would have another way of making a living.

Without prior studies or analysis indicating how many teenagers would benefit from these

social programs, how they would be rolled out, the budget that would be allocated to

them, or, even, what their results may have been, this was a political decision made by

the president without considering whether the federal budget could cover it.

Four scholarships for young people were offered: Benito Juárez; Young People Writing

the Future; Young People Building the Future; and Welfare for Families in Elementary

Education. The scholarship payments range from $800 to $3,748 pesos ($40 to $187

USD) per month, which amounts to a combined federal budget of over twenty billion

pesos, which critics pointed would be insufficient, given the absence of any prior research

on the policy (Becas y Convocatorias, 2020).

It was at this point that the policy began to be subject to questions: Is this going to end

drug trafficking and violence in the country? Why has the president associated violence

with financial support for young people in the country? Are these scholarships going to

resolve the main problem, namely the existence of DTOs in the country? These questions

were prompted by the observation that, as drug trafficking in Mexico is sustained by the

US illegal drug market, it does not depend on whether young Mexican people are in

employment or their level of income.

The objective of the DTOs in Mexico was to gain control of the US illegal drug market and

trafficking routes as well as other criminal activities, such as kidnapping and human

trafficking. Many pointed out that the lack of job opportunities and education for young

people were not the cause of DTO activity, either contemporaneously or historically.

Drug trafficking in Mexico began as part of the bilateral relationship between Mexico and

the United States, with the former representing supply and the latter demand. Greatly

influenced by their Colombian counterparts, Mexican DTOs were established with the

purpose of profiting from drug trafficking and organized criminal activity and not because

those working within them were uneducated or unemployed. In fact, there are many

anecdotal accounts of how politicians, police officers, or other educated professionals

were involved in DTO activity.

The policies enacted by AMLO, therefore, represent the first time that a Mexican politician

saw his best chance of taking power was to offer financial support to young people with

no restriction as to what they could spend it on, given that these social programs do not

ask for evidence of expenditure.

This position also corresponds to the desecuritization of the fight to tackle drug

trafficking, as Helsen describes, given the manner in which AMLO’s policy represented a

shift from an emergency to a politicized matter, a policy decision made by him and not

by either the audience or the political elite involved in a public debate around the relevant

issues.

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Image 3 - Intentional homicides during the AMLO administration

Source: *Total number of intentional homicides: 2018 - 36,685; 2019 - 36,661; and, up to August

2020 - 23,471. Source: A. López, 18 de septiembre de 2020, in “Robos y secuestros tienen histórica

tendencia a la baja. Conferencia presidente AMLO”. YouTube.

https://www.youtube.com/watch?v=1gZjtxV0LqY

The scholarships implemented by AMLO’s government do not directly correlate to a

decrease in violence in Mexico. As we can see in images 2 and 3, since he assumed the

presidency, violence in Mexico only began to decrease in 2020 in the context of the SARS-

COV2 pandemic. The sustained level of violence observed from December 2018 to August

2020 does not support the direct relationship proposed by AMLO between violence and

poverty, education, and his scholarships.

AMLO’s administration has, thus far, been more violent than the previous two, despite

his Secretary of Security’s protestations to the contrary. The highest peak in the levels

of violence during the Calderon and Peña Nieto administrations was the 27,213 thousand

intentional homicides recorded in 2011. Intentional homicides were recorded at 36,685

in 2018, at the end of which AMLO took office, and did not decrease until the reduction

observed in 2020 as related to the SARS-COV2 pandemic. In the year and a half since

the scholarships were introduced, intentional homicides have not decreased, and drug

trafficking continues unabated (Image 3).

The creation of the National Guard

During his candidacy, AMLO insisted that there was a lack of coordination among public

security institutions in a congested institutional environment that interfered in the fight

against organized crime and efforts to reduce violence. To address this lack of inter-

institutional strategy, he proposed the following:

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jul/20

ago/20

Intentional homicides during the AMLO administration

Homicidios dolosos *

Intentional homicides

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“…to integrate the police corporations, the Navy and the Army, (in) a National

Guard. Right now, it is a disaster because each corporation does what it

considers proper, on one side there is the Navy, on the other there is the

Army, on another there is the police; it won't be like that anymore…”

(Hernández & Romero, 2019: 87-106)

His solution was to unify the security and enforcement actions taken against criminal

organizations by creating a single military force under the sole command and direction

of the president, what would become the National Guard (DOF, 2019). Thus, AMLO

proposed, in the chapter Safe Society and Rule of Law of his election manifesto Proyecto

Nación 2018-2024 (Project for the Nation 2018-2024), a series of measures to end the

violence that had blighted the country over the previous twelve years. The most

important points included the following: the creation of the National Guard to replace the

military, which would gradually retreat from certain high risk regions under the rationale

that it should not be carrying out public security functions; the allocation of more

resources for police training; the creation of the National College for Public Security with

the objective of training specialist security corps, which would offer a career option

attractive for the teenagers who do not work or study. In order to tackle violence and

insecurity, AMLO set out a different approach to previous governments, in both

operational and institutional terms, proposing three important changes: relieving the

Secretary of the Interior of its security functions; the creation of the Secretariat of

Security and Citizen Protection; and the creation of the National Guard (Secretaría de

Seguridad y Protección Ciudadana, 2019).

At the launch of this proposal, the future Secretary for Public Security, Alfonso Durazo,

outlined the priorities for a potential Obrador government: “The first is to close the cycle

of war. The second, to achieve a significant decrease in criminal violence within 180 days.

Number three: to recover the trust of society in the security forces. Four: to strengthen

the strategy within three years and, finally, to deliver a country in peace and quiet in

2024.” (Expansión Política, 2018: 4). The deadlines set out by Durazo did not seem

realistic and he was criticized given that violence did not decrease as a result of Felipe

Calderón’s ‘war’ on the DTOs and, while there was a slight decrease in crime when

Enrique Peña Nieto took power, violence peaked towards the end of his administration,

surpassing even the levels of the Calderón administration (Figure 2 / García, 2019: 4).

Shortly after AMLO won the election, Alfonso Durazo, who was in the running to be

Secretary of Public Security, announced that the National Guard would no longer be

created, with this shift in priorities meaning that the fight against organized crime would

be pursued by focusing on money laundering. For Durazo, this would be the best

approach to confronting criminal organizations in the country and could be pursued at a

lower cost (Ramírez, 2018: 3-4).

Durazo’s position was in keeping with the promise of “hugs not bullet wounds” made

during the campaign (Otro País, 2019: 3-8). It should also be noted that, during the

election campaign, the relationship between AMLO and the military had been strained in

light of his statements regarding a possible amnesty for those involved in organized

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criminal activity and the withdrawal of the military from the streets, as well as his

statements highlighting human rights violations committed by the military in Mexican

territory (Zavala, 2019).

The National Guard was proposed as one of the indispensable instruments that would

enable the federal government to provide security, investigating and arresting anyone

jeopardizing the safety of Mexican citizens. It was envisaged that the National Guard

would not be fully operational until 2021, with reforms to the Constitution also necessary,

given that none of Mexico’s armed forces could be in charge of public security and also

that the policy required the dissolution of the Federal Police (Gobierno de México, 2019:

1, 4).

Once the constitutional reforms required had been approved in the nation’s state

congresses, the National Guard was officially established via an announcement, in March

2019, in the Official Gazette of the Federation. The 10th, 16th, 21st, 31st, 35th, 36th, 73rd,

76th, 78th, and 89th articles of the constitution were modified for this purpose while the

National Guard Law was also enacted (Cámara de Diputados del H. Congreso de la Unión,

2019: 6). These reforms were criticized as representing the legalization of the

intervention of the armed forces in matters of public security, although, in DW fact, this

was a continuation of the measures implemented by both Calderón and Peña Nieto.

The failed capture of Ovidio Guzman

One of the main media strategies applied during the Calderon and Peña Nieto

administrations was to generate publicity via the arrest of criminals and the killing of DTO

kingpins. In an effort to foment support from the general public, the objective was to

show that public security institutions were working hard to fight the DTOs all over the

country. The objective of these media events was the same, irrespective of the DTO

involved, leading people to think that they were purely performative and conducted for

publicity purposes.

Criminals noticed that the policy of the newly elected president, AMLO, was different to

past administrations, leading to a major embarrassment for the government during the

attempt to capture Ovidio Guzmán, the son of Chapo Guzman (the past leader of the

Sinaloa cartel in Mexico), on October 17th, 2019. The clear contradictions between all

security institutions involved, as evinced from their public statements, showed a glaring

absence of coordination for an operation of the utmost importance to the new AMLO

administration.

Although the Secretary of Public Security should have at least been made aware of this

top-secret operation, which was to be carried out jointly by the National Guard and

SEDENA, his public comments showed the opposite. He stated that the operation “was

circumstantial” (Camarillo, 2019: 3) and that “Ovidio was never arrested”, continuing

that no deal had been made with the Sinaloa organization to secure Ovidio Guzman’s

release and, finally, admitting that there were failures in the execution of the arrest

without indicating why (Guerrero, 2019: 2).

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On 21st October, AMLO announced that SEDENA and the National Guard were going to

recapture Ovidio, but not by military means this time, because this would put the general

public at risk, something his government was not going to do. He stated that “I was

informed about this action because there is a general recommendation. I think SEDENA

knew about it” (Alvarado, 2019: 13-18).

Statements from all the Secretariats involved underlined this lack of coordination,

contradicting AMLO’s repeated policy objective of greater coordination. Further to his

statements, outlined above, Durazo later said that the military carried out the operation

based on an extradition order from the US. Given that AMLO’s account seemed to change

with every new statement and that he was failing to account for what was clearly a

SEDENA-led security operation, the conclusion drawn was that the president had neither

been informed about the operation nor did he have any real idea as to why the military

had been involved (Alvarado, 2019).

Pointing to what can be described as the desecuritization of the fight against DTOs, given

the avoidance of direct violent confrontation with one specific organization in this case,

AMLO was signaling his prioritization of civilian life over the waging of ‘war’ against DTOs.

The real issue related to this desecuritization policy is that, while AMLO, like his

predecessors, appears not to want criminal violence to be perpetrated on society by the

DTOs, he clearly prefers that this kind of operation fail if it could result in civilian

casualties.

By releasing a high-ranking DTO member, such as Ovidio Guzmán, in full view of society,

AMLO showed his commitment to his promise not to provoke these organizations, despite

them being high-value targets for US extradition and reiterated his stated preference for

peace over violence. This episode provided evidence of AMLO’s policy of desecuritizing

the fight against DTOs. Although he was criticized for this political decision, it was

consistent with his promise not to use violence in the fight against the DTOs, as it had

been used in the past. Considering that AMLO’s desecuritization policy is making the

confrontation between DTOs and the state less evident than in the past, it can be said to

be a success; however, the statistics for violence in the country can be said to show the

opposite (Figures 1 and 2).

The approach followed by the AMLO administration to desecuritize the fight against the

DTOs, which even involved publicly releasing a senior narcotrafficker after his capture by

AMLO’s own armed forces, will not achieve the results that he hopes.

The SARS-COV2 a pandemic and the Mexican army

The SARS-COV2a began to spread across Mexico in March 2020, with 2,000 deaths and

20,000 cases reported by 21st April (Hernández, 2020). The National Guard was brought

in to assist with the implementation of public safety measures, such as encouraging social

distancing and mask use and supervising the security of public health institutions

(Rodríguez, 2020). The Mexican army and navy were then brought in because they were

much more organized and experienced due to the armed forces’ Plan de Auxilio a la

Población Civil en Casos de Desastre (Plan DN-III-E or Civil Aid and Disaster Relief Plan).

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However, this plan was established in 1965 to provide aid and relief during natural

disasters such as flooding, earthquakes, and fires, did not include the National Guard,

which was not established until 2019 (Nájar, 2020).

The decision to bring in the military was announced via presidential decree, on March

26th, 2020, in which AMLO set out the activities to be undertaken by the armed forces in

support of the National Guard’s work to prevent the spread of the virus. On May 4th,

2020, he stated that, as the army and navy had the appropriate experience and personnel

for this task, they were going to administer both Plan DN-III-E and the Navy’s own

contingency plan.

The National Guard was responsible for the repatriation Mexican nationals abroad, with

the private flights required coordinated by the Secretariat of Foreign Affairs, and was also

charged with the following: the refurbishment of military facilities to make them suitable

for treating civilians; the production of medical material; the hiring of specialized health

personnel; the procurement of foreign ventilators; the closing of beaches, businesses,

and public places; the monitoring and prevention of potential outbreaks of looting; the

application of sanitary control points in public places; the monitoring and closure of public

transit; shutting down parties; and, the imposition of curfews (although this last activity

led to censure by the Secretary for the Interior). Acting in support of these initiatives,

the armed forces have been criticized for actions they have taken when keeping people

off the streets, encouraging mask use, closing businesses, and, even, closing public

places, as occurred in the state of Guerrero when beaches were closed by the use of

public force (Rodríguez, 2020).

Durazo, the Secretary of Public Security and Citizen Protection, stated that, in carrying

out public security activities, the armed forces were subordinate to the National Guard,

stressing that this action did not represent a militarization of public security in the

country, as has been alleged. Moreover, he announced the number of military personnel

involved in these actions: SEDENA – 27,364; SEMAR – 12,508; National Guard – 10,470;

and Federal Protective Service – 637. Their duties, according to Durazo, were to guard

warehouses, protect businesses and hospitals, help with the transport of medical

supplies, and distribute food to inaccessible parts of the country (García, 2020).

Durazo wanted to reassure the public that the armed forces were not taking over the

country or represented a threat and that their responsibilities and duties were clear and

would be made evident by their actions. He was clear that, both under the law and by

the actions taken, the armed forces were not undermining or even a threat to the

presidency. He also cited the provisional fifth article regarding the use of the armed forces

to support the National Guard: “…while the structure, capacities, and territorial

jurisdiction of the National Guard are being developed, the President of the Republic may

make use of the permanent Armed Forces in matters of public security in an

extraordinary, regulated, audited, subordinate, and complementary manner” (DOF (b),

2019).

By the end of 2020, on December 23rd, SARS-COV2a vaccines began to arrive in Mexico

and the armed forces were assigned the task of ensuring their security, distribution, and

safety, namely their storage, transportation, and administration to the population.

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Vaccination was considered vital to the national interest, given that it was seen as the

only practical effective measure to stop the spread of the disease. In his speeches, AMLO

has rejected the criticism that the armed forces are being deployed in this context as

part of an effort to militarize Mexico, because he considers that his government is using

the military to ensure public safety (Storr, 2020).

The desecuritization policy of the AMLO administration represents an attempt to pursue

a different policy trajectory, wherein the armed forces have been withdrawn from security

operations against the DTOs; however, at the same time, the National Guard is not yet

ready to take on the responsibility of conducting these operations.

Conclusions

The present article sought to examine the process of desecuritization in Mexico, as carried

out by the AMLO administration with the aim of ending the ‘war’ against drug trafficking”.

The desecuritization policy was the product of AMLO’s view that DTO violence is a social

problem rather than a threat to both State and society, with poverty and the social

problems resulting from economic inequality the main causes of violence in Mexico.

Under this perspective, AMLO proposed the scholarship programs for teenagers as the

first step in the desecuritization process. However, no direct relationship between

violence and social injustice has been found and, moreover, as a social program, the

scholarships do not have a stated objective, are not subject to demographic tracking, nor

are their results published. There is no way to measure either the relationship between

these scholarships and the level of violence or how the AMLO administration is going to

achieve the results that he has promised. As the award of the scholarships does not

depend on a commitment from the recipient to spend the money for a specific purpose,

such as further study, there is no evidence that teenage scholarship recipients are not

being recruited into DTOs.

The second step in the desecuritization process followed by AMLO in his public policy was

the creation of the National Guard to conduct the public security function formerly fulfilled

by the Mexican armed forces (SEDENA and SEMAR) under previous administrations and

which resulted in major human rights violations. However, most of the personnel of the

National Guard have been recruited from both SEDENA and SEMAR, meaning that, in

practice, it is not a civilian force but a militarized force, despite the original intention to

create a civilian one.

The real test for the desecuritization process was the release of Ovidio Guzmán. The

Sinaloa Cartel is one of the main DTOs in Mexico - a transnational and international

threat. The decision taken by AMLO during the crisis sparked by Ovidio’s arrest was to

show that he was not going to risk the safety of the general population. His

desecuritization policy led him to choose to release Ovidio over starting an open war with

the Sinaloa Cartel, a decision that is going to be interpreted by the DTOs as signaling

that the State represents a diminished threat to them.

The present document sought to establish whether AMLO’s desecuritization policy will

reduce crime, violence, and the threat to the State in contrast to the securitization policy

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of previous administrations. We conclude that, rather than reducing violence in Mexico,

public policy has not significantly reduced violence in Mexico, with homicide data showing

the opposite, not only when comparing the two years of the AMLO administration to its

stated objectives, but also in comparison with the two previous administrations, during

which homicide rates were both high and increased.

Former president Calderon was criticized for declaring a “war against drug trafficking”

while Peña Nieto saw an increase in the levels of violence all over Mexico during his

presidency. The current president is inclined to take the opposite tack, having declared

the “end of the war”, although the results achieved do not provide evidence of a reduction

of violence in Mexico. While he promises that violence will decrease as a result of his

desecuritization policy, the statistics show the opposite.

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OBSERVARE

Universidade Autónoma de Lisboa

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135

RIGHTS OF NATURE AS A POTENTIAL FRAMEWORK FOR THE

TRANSFORMATION OF MODERN POLITICAL COMMUNITIES

CARLOTA HOUART

carlotahouart@gmail.com

Bachelor’s degree in International Relations and a master’s degree in IR – Peace, Security and

Development Studies from the Faculty of Economics of the University of Coimbra. She was a

junior researcher at the Centre for Social Studies of the University of Coimbra and is currently a

PhD researcher at Wageningen University (Netherlands) as part of the ERC-funded research

project “RIVERHOOD – Living Rivers and New Water Justice Movements”. Her current research

interests include Critical Political Ecology; Rights of Nature and Multispecies Justice; Critical IR

Theory and Post-Anthropocentrism; and Indigenous Ontologies and Knowledge Systems.

Abstract

This article focuses on the present context of the climate and environmental crises and how

these fundamentally challenge the inherently anthropocentric norms, conceptions and

practices of international politics and IR. I argue that, in order to confront the hegemonic,

anthropocentric mode of relationship with non-human nature that has led to these crises,

alternative frameworks need to be developed that might lead to a gradual transformation of

modern political communities. Departing from Critical IR Theory, I suggest that Andrew

Linklater’s and Robyn Eckersley’s critiques of Westphalia and proposals for its transformation

might be useful to understand how the emergent Rights of Nature movement may promote

such transformation. I look at two paradigmatic cases from the Rights of Nature movement –

the Whanganui River case in Aotearoa New Zealand, on a local level; and Ecuador’s 2008

Constitution, on a national level – to briefly reflect on the alternative understandings of

concepts such as community, subjecthood, agency, voice, rights, participation and

representation that they encourage. By expanding these concepts as to include the more-

than-human world, these RoN frameworks invite a transformation of modern systems of

thought and practice, and – to a certain extent – constitute a potential for the transformation

of modern political communities in ways that might enable a better response to the global

climate and environmental crises.

Keywords

International Relations; Political Community; Rights of Nature; Non-Human Beings; Climate

Crisis.

How to cite this article

Houart, Carlota (2022). Rights of Nature as a potential framework for the transformation of

modern political communities. In Janus.net, e-journal of international relations. Vol13, Nº. 1,

May-October 2022. Consulted [online] on the date of the last visit,

https://doi.org/10.26619/1647-7251.13.1.9

Article received on June 15, 2021 and accepted for publication on March 5, 2022

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Rights of nature as a potential framework for the transformation of modern political communities

Carlota Houart

136

RIGHTS OF NATURE AS A POTENTIAL FRAMEWORK FOR THE

TRANSFORMATION OF MODERN POLITICAL COMMUNITIES

CARLOTA HOUART

Introduction

The climate and environmental crises pose significant challenges to international politics

and International Relations (IR). Global-warming, sea-level rise, extreme weather

events, ecosystem destruction and the sixth mass extinction phenomenon all render the

inseparability and interdependence of human societies and non-human life undeniably

clear. These processes of rapid global change directly challenge the Cartesian dualism

that arose in Europe during the Enlightenment period (Merchant, 1980) and that views

humanity as separate from and in control of nature – a belief which has been central to

IR and its study of world politics ever since the development of the modern-states system

and of the capitalist world economy (Kavalski and Zolkos, 2016; Tickner, 1993). The lack

of timely, concerted and robust responses to these interweaving crises and all of their

ecological, social, economic and political impacts is not indissociable from the pervasive

anthropocentrism that perceives human beings as the central point of reference in world

processes; and of the dominant economic system associated with it which conceives of

non-human nature as a passive object for endless human exploitation and consumption

(Pereira and Saramago, 2020). The present context therefore calls for post-

anthropocentric proposals for the transformation of this hegemonic mode of relationship

with non-human nature, which has arisen primarily in the industrialised nations of the

Global North.

It is important to note that the transformation of this mode of relationship may inevitably

promote a gradual transformation of modern political communities – or the Westphalian

system of nation-states – which have, from the start, been fundamentally informed by

anthropocentric conceptions of the world and its agentic beings. In fact, the defining

norms of Westphalia – e.g., sovereignty, territoriality, citizenship, nationality – are all

inherently anthropocentric given that they establish the ontological, moral, legal and

political boundaries of community almost exclusively around human beings (Pereira,

2017). Calls for some form of interspecies relations (Youatt, 2014); for a new

understanding of planet politics instead of international politics (Burke et al., 2016); for

inclusive, intersectional and cosmopolitical frameworks for multispecies justice

(Celermajer et al, 2021); for new kinds of political community (e.g., zoopolis) which

embrace non-human animals as co-citizens, denizens or sovereigns (Donaldson and

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Carlota Houart

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Kymlicka, 2014) – among others – have been appearing over the last two decades in

response to the exclusive character of world politics and IR, and their inability to

adequately respond to the climate and environmental emergencies. In fact, as Joana

Castro Pereira argues, “IR should abandon the traditional grounds upon which it is based

because the current ‘international’ notion demands not only a holistic conception but also

new ontologies, epistemologies, and methodologies” (Pereira, 2017: 5). Part of this

process would necessarily include the recognition of the world’s multiple agentic beings,

which – I would add – would also involve recovering and/or learning from old ontologies,

epistemologies and methodologies, such as those held and shared by Indigenous

peoples.

Another proposal with the potential to affect and perhaps reshape modern political

communities is that of the emergent Rights of Nature (RoN) movement, generally

understood to have been first advanced in the 1970s through Christopher Stone’s article,

“Should Trees Have Standing? – Toward Legal Rights for Natural Objects” (Stone, 1972).

Since then, and mainly during the last twenty years, the RoN movement has been

evolving within different frameworks, cultures and geographies, arguing for the

recognition of non-human nature’s inherent rights, either to nature as a whole or to

particular ecosystems and species. Although many small, localised legal and political

transformations have started being enacted under the RoN umbrella over the past few

years, some of its most paradigmatic achievements include Ecuador’s 2008 Constitution

(the first in the world to recognise RoN); the draft for a Universal Declaration of Rights

of Mother Earth written during the World People’s Conference on Climate Change and the

Rights of Mother Earth in 2010 in Cochabamba, Bolivia; or Aotearoa New Zealand’s Te

Awa Tupua Act of 2017 (the first in the world to attribute legal personhood status to a

river).

Despite the fact that it most directly pertains to the universe of law, the RoN movement

holds profound and potentially radical implications for human societies on multiple levels,

including politically. As Cormac Cullinan states: “While the regulatory function of law is

easy to see, we often overlook the fact that law plays an equally important role in

constituting and forming society itself” (Cullinan, 2011: 55). Indeed, law shapes and

informs society by defining what should be the multiple relationships between individuals,

groups, and society as a whole, as well as between different societies (Cullinan, 2011).

These legally defined relationships determine, for instance, how a society is ordered and

how power is exercised within it (Cullinan, 2011). As such, “law is used by a society as a

means of creating and defining itself in accordance with its worldview” (Cullinan, 2011:

57). By advancing the idea that non-human nature has inherent rights to live and thrive,

the RoN movement rejects the foundational Eurocentric paradigm created by Cartesian

dualism: it views humanity as deeply embedded in and interdependent with the more-

than-human world; and challenges dominant conceptions of political community,

subjecthood, agency, voice, rights, participation and representation. It should also be

understood as attempting to bring together some of the tools of the contemporary

international system (e.g., modern or international law) with ecocentric or nature-

centred worldviews that are closer to Indigenous cultures and knowledge systems

(Stewart-Harawira, 2012). Indeed, it may be argued that the idea of nature’s rights is

not new at all, having been shared among native cultures for thousands of years through

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their own relationships with the land and non-human beings (Lake, 2017); which is the

reason why I argued that the evolution of IR’s understanding of the world and its agentic

beings requires both new and old ontologies, epistemologies and methodologies. To

clarify, then, when I refer to the emergent RoN movement, I refer to these new

initiatives, campaigns, and evolutions in law that seek to recognise rights and/or legal

personality status to non-human beings and ecosystems.

Critical IR Theory is useful to understand the RoN movement’s potential to gradually push

modern political communities in a post-anthropocentric direction. Therefore, in the

second section of this article, I will briefly look at Andrew Linklater’s and Robyn

Eckersley’s critiques of Westphalia and proposals for its transformation. In the third

section, I will reflect on how they might apply to two cases from the RoN movement that

were mentioned above: the Whanganui River case in Aotearoa New Zealand

(representing RoN on a local level); and Ecuador’s 2008 Constitution (representing RoN

on a national level). Through critical discourse analysis, I will look at the official

documents from each case (the Te Awa Tupua Act of 2017; and Ecuador’s Constitution)

and see how their language and narrative potential encourage an alternative reading of

concepts like community; subjecthood; agency; voice; rights; participation; and

representation. In the last section I present some concluding remarks, namely that – by

significantly broadening these concepts as to include the more-than-human world – the

emergent RoN movement indeed encourages different frameworks for the potential

transformation of modern political communities beyond anthropocentric Westphalia.

Beyond Westphalia

Linklater’s call for the transformation of modern political communities is associated with

his criticism of the Westphalian states-system as one premised on the inclusion of those

deemed as “insiders” or “citizens” and the exclusion of those deemed as “outsiders” or

“aliens” – a premise derived from the process of state-formation and that is part of the

nation-state’s “totalising project” (Linklater, 1998: 6). The success of modern states over

other forms of political organisation promoted the development of a powerful discourse

combining the concepts of sovereignty, territoriality, citizenship and nationality, based

on the belief that “ideally, all citizens should subscribe to one national identity conveyed

by a common language and culture” (Linklater, 1998: 29). From the beginning, then, the

Westphalian states-system was one which tried to erase difference within and beyond its

national boundaries; and for Linklater, the essential problem of modern political

communities is precisely their exclusion of difference and otherness – both between

“citizens” and “aliens”, and between “citizens” and subaltern groups within the state

(Linklater, 1998).

Nevertheless, the Westphalian state and its totalising project do not go unchallenged.

According to Linklater, sovereign political communities are challenged on two fronts by,

on the one hand, “morally universalistic claims that call for amplifying the role of

authorities above the nation-state”; and, on the other hand, by the “politics of

recognition” of Indigenous groups and minority nations, which call for “reducing the

influence which sovereign states exert over local communities and subordinate cultures”

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(Linklater, 1998: 26-27). The tendencies of globalisation and fragmentation that have

evolved in opposition to and in response to each other in latest decades, along with the

social and economic changes they produced, have been having serious impacts on the

modern state’s capacity to perpetuate its totalising project (Linklater, 1998). Indeed, by

promoting the homogenisation of international society, globalisation actually fuels the

politics of identity and community: where there is no convergence between cultural and

political boundaries (e.g., in the case of Indigenous peoples living in colonial settler

states), there have been increasing pressures to transform “traditional conceptions of

community and citizenship which are hostile to the creation of group-specific rights”

(Kymlicka, 1989 apud Linklater, 1998: 32). Minority nations, migrant communities and

Indigenous peoples therefore promote the “politics of recognition”, relying also on

“transnational political activity” that is made possible by globalisation, and thus seeking

“global support for their project of reconstructing national communities” (Linklater, 1998:

32). The growing prominence of the politics of recognition is, in Linklater’s view, a central

indicator of movement beyond the Westphalian era (Linklater, 1998).

Linklater’s proposal for overcoming the social deficits brought about by the Westphalian

nation-state’s totalising project involves the widening of the moral boundaries of political

community in order to include previously excluded “others”. This expansion of boundaries

is part of Linklater’s envisioned triple transformation of political community, one that

seeks to “secure greater respect for cultural differences, stronger commitments to the

reduction of material inequalities and significant advances in universality” (Linklater,

1998: 3). According to him, such transformation may be achieved through the

establishment of dialogic relations, or the construction of some form of universal

communication community, that engage both “citizens” (all citizens) and “aliens” in

dialogue about matters of vital interest to all. Indeed, the dialogic ideal “envisages post-

nationalist communities which are sensitive to the needs of the systematically excluded

within and outside traditional borders”, making it “one of the principal ethical foundations

of the post-Westphalian era” (Linklater, 1998: 51). In Linklater’s view, making dialogue

central to social life would essentially mean being “troubled by the ways in which society

discriminates against outsiders unfairly by harming their interests while denying them

representation and voice” (Linklater, 1998: 7). In these communities, then, new social

bonds may develop which can “unite citizens around the common aim of eradicating

unjustifiable exclusion and promoting deep diversity” (Linklater, 1998: 83).

Still, as appealing as it may be for the inclusion of those subjects whose voices, needs

and concerns are traditionally excluded from political decision-making, Linklater’s

proposal seems unable to extend to non-human nature. This is partly because his

understanding of normative validity, which is inspired by Habermas’ conception of

discourse ethics, rests on the notion of communicative competence; or the fact that

norms should be considered valid insofar as all those potentially affected by them

participate in rational discourse and can (or not) give their consent to those norms

(Linklater, 1998; Eckersley, 2004). Such a provision that apparently instantly excludes

non-human beings is the result of an anthropocentric system of theory and practice that

does not even consider non-human nature as part of the picture. After all, “outsiders”,

“aliens” and subordinate/subaltern groups within the Westphalian states-system refer to

human groups such as the global poor, refugees, minority nations or Indigenous peoples

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(Linklater, 1998). Insofar as non-human nature is rendered invisible in the dominant

world-picture (Burke et al., 2016), no significant transformation of modern political

communities to embrace the more-than-human world may be achieved within

Westphalia, or as long as they adhere to its hegemonic norms and conceptions.

In such context, one might ask: what are the implications of thinking about these “aliens”

or “others” beyond the species boundary of the human? In a planet that is currently

experiencing a global climate emergency, with unprecedented levels of ecosystem

destruction, species extinction and catastrophes affecting both human and non-human

beings, are we not indeed harming everybody’s interests by denying the latter

representation and voice in the course of decision-making? What would happen if people

were troubled by the ways in which modern human societies tend to continuously dismiss

the needs and interests of non-human nature – something which may be said to lie at

the centre of the climate and environmental crises? Viewing non-human nature as part

of the group of systematically excluded and devising frameworks for engaging in dialogue

with its multiple beings may be a crucial first step in order to overturn the current

situation.

Eckersley does this through her proposal for an ecological democracy, or some form of

post-Westphalian green state, which builds on Linklater’s work but goes importantly

further. Her politically challenging proposal for the transformation of modern states

establishes that: “All those potentially affected by a risk should have some meaningful

opportunity to participate or otherwise be represented in the making of the policies or

decisions that generate the risk” (Eckersley, 2004: 111). This formulation is closely

aligned with Linklater’s claim that dialogue promotes moral progress, especially when

one understands it as an expansion of the circle of subjects who have rights to participate

in dialogue, and the commitment that only those norms can be regarded as universally

valid that have (or could have) the consent of all those potentially affected (Linklater,

1998). However, Eckersley’s formulation steps outside the anthropocentric cage by

suggesting that the opportunity for participation or representation should be extended to

all those potentially affected, including all of nature, non-human beings, and future

generations (Eckersley, 2004).

To engage with non-human beings in the dialogic relations that may enable the

development of more inclusive, fair, and ecological societies, Eckersley transforms

Habermas’ conception of normative validity – the one which claims that norms should be

considered valid insofar as all those potentially affected participate in rational discourse

(Eckersley, 2004). By replacing the word “insofar” with “as if”, Eckersley suggests that

although many non-human beings may not be able to consent to proposed norms, acting

as if they were may help to ensure that their needs, interests and well-being are

respected, regardless of how useful they are to human beings (Eckersley, 2004). This

alternative perspective gives much more importance to the role of representation in the

democratic process. In fact, Eckersley claims that “representative claim making on behalf

of nature” is “ultimately an exercise in persuasion, concerned with exposing practices of

exclusion and defending practices of inclusion”; and it can therefore be seen “as an effort

to extend or radicalize democracy rather than curtail it” (Eckersley, 2011: 241).

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In Eckersley’s formulation of an ecological democracy, the demos is “no longer fixed in

terms of people and territory”, providing “a challenge to traditional conceptions of

democracy that have presupposed some form of fixed enclosure, in terms of territory

and/or people” (Eckersley, 2004: 113). Here one can see how her proposal may directly

challenge Westphalia’s central (anthropocentric) norms of territoriality, sovereignty,

citizenship or nationality, since the “relevant moral community” that should be

considered when making risk-generating decisions is neither ontologically, geographically

nor temporally bounded (Eckersley, 2004: 113). Instead, it should be understood as that

which is “tied together not by common passports, nationality, blood line, ethnicity, or

religion but by the potential to be harmed by the particular proposal” (Eckersley, 2004:

113). The boundaries of the political community would thus “rarely be determinate or

fixed but instead have more of the character of spatial-temporal zones with nebulous

and/or fading edges” (Eckersley, 2004: 113). This proposal might be better suited to

respond to planetary, borderless phenomena, such as climate change, instead of a

dominant world-picture of separate, autonomous states that can respond to the crisis

each at their own pace and will.

Of course, such a proposal carries many significant and complex challenges (in theory

and in practice). Although this is not the place to reflect on them, suffice it to note how

challenging Eckersley’s formulation is to the Westphalian states-system’s main norms

and principles, notably because “it does not regard the boundaries of the nation-state as

necessarily coterminous with the community of morally considerable beings” (Eckersley,

2004: 114). Regarding the question of how to include non-human beings (and future

generations) in the dialogic processes of decision-making, Eckersley proposes the

concept of political trusteeship, whereby persons and groups are chosen to represent the

needs and interests of those who may not be able to speak for themselves. This closely

resembles Christopher Stone’s suggestion for the designation of guardians (or a system

of guardianship) who can speak on behalf of ecosystems in order to uphold their legal

rights (Stone, 1972). The representatives taking on this trusteeship role should include

those with firsthand knowledge or experience of non-human nature, including Indigenous

peoples, environmental organisations, scientific experts, etc. (Eckersley, 2004).

Naturally, cases of uncertainty, complexity or conflict may arise which can render the

decision-making process more difficult. In these cases, Eckersley claims that the green

democratic state must not be neutral. Environmental justice in an ecological democracy

necessarily requires “rights and decision rules that positively favour the disadvantaged

(…) over well-resourced and strategically oriented economic actors” (Eckersley, 2004:

135). One way to achieve this would be through the creation of green democratic

constitutions that might recognise, protect, and reward “ecologically responsible social,

economic and political interactions among individuals, firms and communities” (Eckersley

2004: 140). In effect, such democracy would encourage states to assume a form of

“ecologically responsible statehood” (Eckersley, 2004: 2). The development of a diverse

and wide-ranging green public sphere that can inspire practices of transboundary

democracy, working towards common goals of ecological, climate and social justice on a

global level, is another important aspect (Eckersley, 2004).

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Linklater’s and Eckersley’s proposals for the transformation of modern political

communities beyond their traditional modes of exclusion may therefore pave the way for

the inclusion, representation and participation of non-human nature, namely through the

development of some form of post-Westphalian green states. I will now turn to the RoN

movement and analyse how it may suggest a potential transformation of certain

communities in this direction.

The Rights of Nature movement

The RoN movement was born from a common perception that existing governance

systems are by themselves incapable of responding to the current trends of ecosystem

destruction, biodiversity loss and climate change, given competing interests from

different actors (e.g., industries; corporations; states) and the fundamental rules of the

contemporary economic and political system (Barcan, 2019). As such, “environmental

law has become a fertile site for creative experiments”, one of which includes the

recognition of non-human nature’s subjecthood, agency and voice, and fundamental

rights (Barcan, 2019: 5). As Youatt claims, the particular feature of RoN seems to be

that “they name new, collective, legal and political subjects that are mostly nonhuman”

(Youatt, 2017: 2). This can constitute “the latest round of an outward expansion of rights

to the previously marginalized, building on the recognition of rights along the axes of

race, class, gender, and species” – reminding us of Linklater’s proposal (Youatt, 2017:

2). In such scenario, through initiatives and movements like RoN, non-human nature can

increasingly acquire actorness or political subjecthood in global life.

Furthermore, the RoN movement has often (although not exclusively) been spearheaded

by Indigenous peoples and communities, which is corroborated by the fact that some of

its best-known successes (e.g., Ecuador’s 2008 Constitution; Aotearoa New Zealand’s Te

Urewera and Te Awa Tupua Acts) have been taking place in countries with Indigenous

populations and active grassroots mobilisation for the recognition of Indigenous voices,

claims, and rights. This is tied to the fact that non-Western, Indigenous modes of

relationship with non-human nature have historically been radically different from the

capitalist, anthropocentric mode of relationship prevalent in the Western world. Actually,

despite their diversity in cultures, ontologies and epistemologies, Indigenous peoples

around the world tend to share a core set of principles of relationality, interdependence,

intercommunication, respect and harmony with the Earth and all beings (e.g. Heinämäki,

2009; Stewart-Harawira, 2012; Inoue, 2018). One significant difference between

Western, hegemonic and Indigenous, counter-hegemonic understandings of nature is

that between looking at ecosystems (e.g., forests, mountains, rivers) as landscapes,

natural resources or carbon sinks – or as “worlds in and of themselves” (Inoue, 2018:

28). This latter understanding underlies Indigenous ontologies that view humans as

caretakers of the Earth, explaining why – in spite of comprising less than 5% of the world

human population – Indigenous peoples protect and preserve around 80% of the planet’s

remaining biodiversity (IUCN, 2019). Indigenous cultures and knowledge systems have

therefore tended to reject anthropocentric notions of community, subjecthood, agency,

voice, and rights long before the modern RoN movement was born. We will now see how

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these alternative understandings of such concepts have been advanced through this

movement on two different scales.

1. The Whanganui River case

In 2017, the Te Awa Tupua Act became the world’s first piece of legislation to declare a

river to be a legal person (Collins and Esterling, 2019). It resulted from a long effort by

the Maori people, since 1873, to have their right to ownership of the Whanganui River

restored – a right which was taken from the Whanganui tribes by the Treaty of Waitangi,

through which the British Crown annexed the territory of Aotearoa (New Zealand) in 1840

(Rodgers, 2017; Collins and Esterling, 2019). The attribution of legal personality to the

Whanganui represents the latest legal tool being used for the protection and management

of rivers; but it also represents a political settlement acknowledging Maori tikanga

(customary law) and viewing the river and its tributaries in a broad, holistic perspective

(O’Donnell and Macpherson, 2019).

As demonstrated in pages 14 and 15 of the Act

, Te Awa Tupua is defined as “an

indivisible and living whole, comprising the Whanganui River from the mountains to the

sea, incorporating all its physical and metaphysical elements” (Te Awa Tupua Act, 2017:

14). Tupua Te Kawa refers to all the intrinsic values that represent the essence of Te Awa

Tupua, including “Ko au te Awa, ko te Awa ko au: I am the River and the River is me”,

which in turn means that “the Iwi and the hapü of the Whanganui River have an

inalienable connection with, and responsibility to, Te Awa Tupua and its health and well-

being” (Te Awa Tupua Act, 2017: 14-15). The Act reflects a Maori ontology by identifying

Te Awa Tupua (the whole of the river) as including both the river and the people, the

Whanganui tribes, “as a single unit, not just as a matter of recognition but also as a

matter of governance” (Youatt, 2017: 11). This conception of community consequently

views humans as inseparable from and interconnected with the more-than-human world

(the river and all other beings inhabiting it). It also represents an attempt to dismantle

systems of governance built by Western colonial powers that use language, discourse

and law to govern human and non-human nature according to their objectives and

worldviews (Youatt, 2017).

This Indigenous view of the Whanganui River as a broad community is in line with

Eckersley’s proposal for an ecological democracy in which the boundaries of the demos

are redrawn to include a larger moral constituency; one that challenges the Westphalian

nation-state’s traditional norm of territorial sovereignty as a fundamentally nationalist

and anthropocentric one (Eckersley, 2004). In this case, the Whanganui River – although

being geographically located within the borders of the state of Aotearoa New Zealand –

belongs not to the state but to itself, which includes the Maori tribes and the non-human

beings living in interdependence with the river. Ownership would in this case be better

understood as guardianship. As noted by Rodgers, “traditional Maori concepts of

stewardship reflect a different relationship (…) to that in most Western legal systems”

(Rodgers, 2017: 270). The difference lies in the Maori concept of kaitiakitanga, whose

The Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 can be consulted here:

https://www.legislation.govt.nz/act/public/2017/0007/latest/whole.html

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main premise is “the understanding that people live in a symbiotic relationship with the

earth and all living organisms and have a responsibility to enhance and protect its

ecosystems” (Rodgers, 2017: 270). An example of this is clearly illustrated by the phrase

“I am the River and the River is me” (Te Awa Tupua Act, 2017: 15).

The next pages of the Act show what it establishes in terms of the recognition of legal

personality to Te Awa Tupua and the defined system of guardianship. The Whanganui

River is thereby declared to be a “legal person and has all the rights, powers, duties, and

liabilities of a legal person” (Te Awa Tupua Act, 2017: 15). Te Pou Tupua are its appointed

guardians, in accordance with Eckersley’s concept of trusteeship, to ensure that the

interests and needs of non-human nature are represented and upheld. The appointed

guardians are to be the “human face of Te Awa Tupua and act in the name of Te Awa

Tupua” (Te Awa Tupua Act, 2017: 17). This system of guardianship consists of naming

one member of the Whanganui tribes and one member of the Crown to act as trustees

or spokespersons, and to uphold the intrinsic values (Tupua te Kawa) that represent the

essence of the whole of the river. By electing both one Indigenous and one non-

Indigenous New Zealander as representatives, the Act may be understood to try to

promote a convergence of cultural and political boundaries, thereby encouraging what

Linklater advocates as a transformation of political community that seeks to secure

greater respect for cultural differences and a greater universality (Linklater, 1998).

It also effectively broadens the scope of representation in the political community that is

the state of Aotearoa New Zealand, regarding this local ecosystem, by including both: 1)

traditionally marginalised human communities (the Maori); and 2) non-human nature

(Te Awa Tupua). Ultimately, the conception of humanity’s relationship with non-human

nature that underlies this Act is radically different from the one that permeates dominant

narratives in the modern states-system. It: a) recognises legal and political subjecthood

to a river; b) claims that the physical and spiritual community formed by Te Awa Tupua

is made of both human and non-human beings, thereby crossing the territorial and

ontological boundaries of the river; c) establishes that Te Awa Tupua is its own sovereign;

d) and attempts to ensure that the river’s voice is heard, even if through its appointed

human guardians. Hence, regardless of potential challenges to its practical

implementation (which are likely to exist, since it marks such new ground in Western law

and politics), it clearly promotes counter-hegemonic conceptions of community,

subjecthood, agency, voice, rights, participation and representation that are non-

anthropocentric and better suited to respond to the current context of environmental

destruction exacerbating the climate crisis. The transformative potential of the Act is also

that, even if on a local level, the inscription of this piece of legislation into the institutions

of the state indeed creates a precedent for a new system of governance and pushes it

toward a form of ecologically responsible statehood (Eckersley, 2004).

2. Ecuador’s 2008 Constitution

We now turn to that which is perhaps the world’s most famous example of the RoN

movement on a national level. In 2008, Ecuador became the first country in the world to

officially enshrine RoN into its Constitution, recognising nature in its whole as a rights-

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bearing entity. In fact, it may be argued that this is the “hitherto most radical constitution

of the world” in what concerns RoN (Lalander, 2016: 624). Chapter 7, through Articles

71 to 74, describes the concept and its legal and political implications for the state

The Constitution claims that “Nature, or Pacha Mama, where life is reproduced and

occurs, has the right to integral respect for its existence and for the maintenance and

regeneration of its life cycles, structure, functions and evolutionary processes”

(Constitution of Ecuador, 2008). Here, then, nature is defined as a whole, recognising no

separation between human and non-human worlds and highlighting the interdependence

of human and non-human beings. Through these words, one can see recognition of

nature’s legal and political subjecthood as a living universal entity with inherent rights

and inherent agency. The 2008 Constitution can thus be seen as an example of

Eckersley’s “green democratic constitutions” (Eckersley, 2004: 140).

The inscription of RoN into the Constitution might also be seen as an example of

Linklater’s claim that transitioning to a system where new forms of political community

arise does not necessarily imply the disappearance of conventional state structures, but

rather the fact that “states should assume a number of responsibilities which have usually

been avoided in the past” (Linklater, 1998: 4). One of these, laid out in Article 72, is that

the state must ensure nature’s right to restoration (from severe or permanent

environmental harm) and establish proper mechanisms to “eliminate or mitigate harmful

environmental consequences” (Constitution of Ecuador, 2008). Furthermore, Article 73

explicitly holds the state accountable for applying “preventive and restrictive measures

on activities that might lead to the extinction of species, the destruction of ecosystems

and the permanent alteration of natural cycles” (Constitution of Ecuador 2008). By

making it clear that the state is responsible for enforcing RoN, the Constitution seeks to

cast it in the new role of “ecological steward” (Eckersley, 2004: 2).

Obviously, whether or not the state acts accordingly is another matter, but the language

and narrative potential underlying Chapter 7 describe this new framework for state

practice in a way that invites a critical reflection on the concepts of community,

subjecthood, agency, voice, and rights in a non-anthropocentric perspective. The

Constitution indeed defines an enlargement of Ecuador’s moral, legal and political

boundaries to include non-human actors who have become repositories of rights that

must be ensured by the state – and thus represents a potential post-Westphalian (post-

anthropocentric) transformation of this particular political community.

Concerning the selected system of trusteeship, Article 71 establishes that “all persons,

communities, peoples and nations can call upon public authorities to enforce the rights

of nature” (Constitution of Ecuador, 2008). This means that, in a sense, anybody can act

as a guardian or trustee and speak on behalf of non-human nature to make its needs

and interests heard. Such provision also broadens the potential scope of representation

of non-human nature by naming not only individual but also collective actors

(communities and nations) that are part of a rather indeterminate overall community.

Besides, the Constitution not only has this more representative dimension regarding non-

The 2008 Constitution of Ecuador can be consulted here:

https://pdba.georgetown.edu/Constitutions/Ecuador/english08.html

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human nature but also regarding Indigenous peoples, who are part of the traditionally

excluded subaltern groups or “aliens” referred to by Linklater.

This is evident in the preamble and corroborated by Youatt’s remark that “the rise of

indigenous political forces in Ecuador (…) clearly shaped the particular language in these

articles, especially the use of Pachamama and sumak kawsay” (Youatt, 2017: 10). The

preamble refers to Pacha Mama, the Kichwa word generally translated as Mother Earth,

and to the sovereign people of Ecuador’s commitment to “building a new form of public

coexistence, in diversity and in harmony with nature, to achieve the good way of living,

the sumak kawsay” (Constitution of Ecuador, 2008). The inclusion of an Indigenous

paradigm such as sumak kawsay or buen vivir – which represents an alternative to the

Western concept of (economic) development – may thus represent an attempt to bring

political and cultural boundaries into convergence, in line with Linklater’s proposal. The

use of concepts such as Pacha Mama and sumak kawsay (which would deserve a far

longer article focused solely on their meanings and implications) in the Constitution

consequently infuses it with an Indigenous worldview based on notions of

interdependence, interrelationship, harmony and respect between humans and non-

human beings. According to Eduardo Gudynas, the 2008 Constitution promotes a

biocentric posture, where both human and non-human lives have value in themselves

(Gudynas, 2011); and it therefore rejects a mechanical, reductionist, instrumentalist

view of nature, which has been central to the processes of development of the state and

the market and hence inherent to modern political communities (Tickner, 1993).

Nevertheless, it is important to note that the Constitution emerged out of a very

particular political and social context. It was approved “in the aftermath of a period of

profound political turmoil”, at a time when leftist president Rafael Correa had just been

elected with promises of fundamental changes for the country, including a greater

representativeness of Indigenous rights and attention to environmental concerns

(Espinosa 2019: 608). An analysis of the implementation of RoN in the country shows

that, despite being a radically new step taken by a state, upholding Rights of Nature in

Ecuador has not become common practice since 2008 (Lalander, 2016; Laastad, 2019).

There are contradictions within the Constitution itself, namely on what concerns the

state’s responsibility for the country’s economy (highly dependent on extractivism and

on the exploitation of non-renewable resources); and its duty to uphold RoN (Lalander,

2016). These find a parallel in the state’s practice, which continues to rely heavily on

resource extraction despite calls for the protection of nature (Lalander, 2016).

Considering that Ecuador is one of the poorest countries in South America, the state

seems to be trapped between the need to rely on extractivist industries for social welfare;

and the need to protect its ecosystems and beings. This apparent dilemma means that

“in practice, strategic economic and political interests of the State clash with indigenous

and environmental rights” (Lalander, 2016: 625).

It might be tempting to argue that this difficulty in upholding RoN in Ecuador casts doubt

on the potential success of the entire movement. However, what is particularly

interesting here is how the language used – and its underlying understandings of the

political community, of nature’s subjecthood and rights – point at least to the possibility

of transforming Ecuador’s boundaries and system of governance in a post-

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anthropocentric direction. There are, after all, signs that including RoN in the national

Constitution has indeed promoted a growing ecological conscience within civil society

(Laastad, 2019). Perhaps it is also connected to some recent achievements in Indigenous

and environmental rights’ movements, such as the decision by the Constitutional Court

of Ecuador in late 2021 to refuse mining concessions in the protected forest of Los Cedros

– a decision based on the understanding that such activity would violate the rights of

nature of this particular ecosystem (Global Alliance for the Rights of Nature, 2021). As

stated in the documentary The Rights of Nature: a Global Movement, “the rights of nature

are thus represented as less of a legislative tool than an instrument to change how people

think and act” (Goeckeritz, Crimmell, and Berros, 2020). A change in consciousness can

thus represent the first step towards transforming state practice.

Secondly, the fact that it seems impossible to uphold RoN in the current economic and

political system highlights how this system is not built in a way that genuinely allows for

the protection of non-human nature, as it is necessarily premised on the continuous

exploitation of ecosystems, peoples and beings. As long as modern political communities

are built on hegemonic conceptions of the world and its agentic beings, and rely on an

economic system that demands the exploitation and destruction of a nature viewed as

passive object, it may not be possible for these communities to become ecologically

balanced and to effectively respond to the climate and environmental crises. Given that

these crises are rapidly worsening, and that they hold such devastating potential to

transform global society, looking at the dilemmas that countries such as Ecuador seem

to face while trying to uphold RoN and still play by the rules of the current system may

propel a call to action towards the transformation of political community beyond its

capitalist and anthropocentric structures.

Concluding Remarks

Having analysed these two paradigmatic RoN cases, I would argue that the movement is

aligned with Linklater’s and (especially) Eckersley’s proposals for the transformation of

modern political communities beyond their traditional exclusionary character. Both the

Te Awa Tupua Act of 2017 and Ecuador’s 2008 Constitution seem to be good examples

of the politics of recognition that seek to achieve a greater convergence between cultural

and political boundaries; that encourage members of the two political communities to be

sensitive to the needs and interests of the systematically excluded (in this case, with a

particular focus on non-human beings and ecosystems); and that promote deep diversity

by extending the moral boundaries of the community to very different “others” – all in

line with Linklater’s proposal (Linklater, 1998). They also hold important representative

dimensions that attempt to create spaces (either through a new legislative Act, or

through the national Constitution) for non-human nature’s voice to be heard, even if

through appointed human guardians or trustees; and encourage practices of ecologically

responsible statehood, either locally or through the development of what might be

considered a green constitution – in line with Eckersley’s proposal (Eckersley, 2004).

Still, two important observations should be made. While these two cases focus on a local

and on a national level, I believe that thinking of the RoN movement on a potentially

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global scale indicates that the discussion surrounding nature’s rights probably becomes

more abstract, complex, and harder to implement in practice as one moves from a local

to a national to a global level. Suffice it to think of how challenging it would certainly be

to try to turn the Universal Declaration of Rights of Mother Earth that was written in 2010

in Cochabamba, Bolivia, into an “international normative framework” similar to the

Universal Declaration of Human Rights of 1948 – as was the intention of its proponents

when they presented it to the UN General-Assembly (Espinosa, 2014: 393). The fact that

the Declaration was not yet accepted as an official framework speaks for itself.

Attempting to establish RoN on a global scale poses far greater challenges, as they would

have to be accepted by a much larger and more diverse set of actors (with different

economic circumstances, political regimes, cultures, needs and interests); and they

would directly challenge some of the foundational structures, norms and rules of the

contemporary international system, including the capitalist world economy. On the other

hand, although questions, challenges and tensions exist in both the Whanganui River

case and regarding the Ecuadorian Constitution, and perhaps more evidently in the latter,

RoN frameworks were officially adopted in both instances and they are to some extent

already having an impact. What this suggests is that the RoN movement might potentially

achieve greater success by first focusing on smaller, localised changes and gradually,

potentially encourage a growing network of RoN frameworks. Working on paradigmatic

change or consciousness raising on smaller levels might contribute to spreading counter-

hegemonic conceptions and systems of practice through a grassroots, bottom-up

approach.

Secondly, it is important to note how the contexts in which the RoN movement has had

more success until now are in the Global South, and specifically in regions with

Indigenous peoples and active Indigenous mobilisation (or struggle) for the recognition

of their cultural, political, and legal rights. Some of the cases where the RoN frameworks

seem to have been more boldly introduced so far, in Ecuador and in Aotearoa New

Zealand, involved very particular circumstances through which Indigenous peoples made

their voices and their claims (and therefore their cultures, ontologies, and language)

heard and incorporated into official legislation. What this seems to suggest is that, in

those spaces where the moral boundaries of political community are widened to the

extent that they allow for a greater inclusion, participation and representation of

traditionally marginalised human communities (particularly Indigenous peoples), one can

expect to more easily see a corresponding expansion of those boundaries to include

systematically excluded non-human nature. This makes sense, in fact, if one thinks of

Indigenous peoples’ traditional relationships to the more-than-human world; and it also

suggests that the development of more inclusive political communities can be a good

scenario for both human and non-human beings. If it enables a more timely, concerted,

and robust response to the climate and environmental crises, it certainly will.

Finally, regardless of potential challenges to its practical implementation, I would argue

that the RoN movement does indeed hold the potential for (at least) a gradual

transformation of political community in a post-anthropocentric, post-Westphalian

direction. Through their language and narrative potential, RoN frameworks invite a critical

reflection on concepts of community, subjecthood, agency, voice, rights, participation

and representation that have almost exclusively centred around humans; and

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consequently push for an enlargement of the moral, legal and political boundaries of

community as to include the more-than-human world. By inviting a transformation of a

prevailing, exploitative, anthropocentric mode of relationship with non-human nature,

the RoN movement also enables a potentially robust, more representative, inclusive, fair,

and ecological response to the climate and environmental crises.

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OBSERVARE

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COMMON BUT DIFFERENTIATED RESPONSIBILITIES REGARDING CLIMATE

CHANGE. DIFFERENT INTERPRETATIONS WITHIN THE BRAZILIAN NATIONAL

CONTEXT

CHRISTOPHER KURT KIESSLING

ckiessling@conicet.gov.ar

Ph.D. in Social Sciences from FLACSO, Argentina. Postdoctoral fellow in the National Scientific

and Technical Research Council (CONICET) co-financed by the Universidad Católica de Córdoba

(Argentina). Teacher and researcher at this house of studies and in Universidad Blas Pascal.

Member of the Observatory of Argentine Climate Policy, ARG1.5º.

AGUSTINA PACHECO ALONSO

apacheco234@gmail.com

Master’s candidate in Law and Economics of Climate Change (FLACSO, Argentina). Bachelor of

Arts in International Relations (Universidad Católica de Córdoba) and Bachelor of Arts in Political

Science (Universidad Católica de Córdoba). Lecturer at Universidad Siglo XXI. Coordinator of the

Climate Change and Sustainable Development area in Asociación Sustentar, member of the

FLACSO research team on cities and climate change and the Observatory of Argentine Climate

Policy, ARG1.5º. In turn, she is a member of different national and regional climate networks,

such as the Latin American Observatory for Climate Action (OLAC), the Latin American Youth and

Climate Change Platform (Clic!), and the Alliance for Argentine Climate Action (AACA).

Abstract

The following paper aims to reconstruct the evolution of this dynamic by tracing the

interpretations and reinterpretations of the norm done by Brazilian state actors through the

process of localization of the norm in the domestic discourse on climate change in Brazil from

2005 to 2010. The theoretical perspective is based on the literature about norms

internalization that attempts to specify the conditions under which international norms find

salience in particular domestic contexts.

Two main interpretations coexist within the Brazilian political arena in the period within the

entry into force of the Kyoto Protocol until the signature of the Paris agreement that influenced

the climate politics in Brazil in that period. The first stand around the norm was a traditional

interpretation of the principle defending a position of historical responsibilities that implies

that Brazil did not have to take greenhouse gas reduction measures. The second position is a

more progressive interpretation of the norm that argues that Brazil, as an emergent country,

can and must adopt emissions reductions. The tie between both positions allows us to

understand the alleged ups and downs in climate policy in the time frame studied.

Keywords

Climate Change; Brazil; Common but Differentiated Responsibilities; Localization

How to cite this article

Kiessling, Christopher Kurt; Alonso, Agustina Pacheco (2022). Common but differentiated

responsibilities regarding climate change. Different interpretations within the Brazilian

national context. In Janus.net, e-journal of international relations. Vol13, Nº. 1, May-October

2022. Consulted [online] on the date of the last visit, https://doi.org/10.26619/1647-

7251.13.1.10

Article received on Sepember 9, 2021 and accepted for publication on February 20, 2022

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Common but differentiated responsibilities regarding climate change. Different interpretations within the

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Christopher Kurt Kiessling, Agustina Pacheco Alonso

153

COMMON BUT DIFFERENTIATED RESPONSIBILITIES REGARDING

CLIMATE CHANGE. DIFFERENT INTERPRETATIONS WITHIN THE

BRAZILIAN NATIONAL CONTEXT

CHRISTOPHER KURT KIESSLING

AGUSTINA PACHECO ALONSO

Introduction

The principle of Common but Differentiated Responsibilities and Respective Capabilities

(CBDR–RC from now on) emerges as a fundamental norm of global environmental

governance at the interstate level, as a result of the international negotiations that led

to the adoption of the United Nations Framework Convention on Climate Change

(UNFCCC from now on) in 1992. The traditional interpretation of the norm held that

different levels of environmental protection should be expected between developed and

emerging or developing countries, or at a minimum, a grace period should be granted to

developing countries to address reforms leading to reduce their environmental impact in

the medium term. In contrast, mitigation actions should be addressed as soon as possible

for developed countries.

The principle’s rationale is that Northern states are primarily responsible for past

environmental degradation, and they continue to consume an overwhelming proportion

of the planet’s resources and possess superior technological and financial capabilities to

protect the environment. However, many Northern states have refused to accept

responsibility for their historical contribution to global environmental degradation. They

interpret the principle as imposing only future, not past, responsibilities (Rafiqul Islam,

2015). In this way, the CBDR-RC principle derives from the historical divide between the

Global North and Global South on environmental politics and consolidate itself as a

compromise between the needs of Northern and Southern countries, recognizing the call

to adopt differential norms in certain circumstances given the heterogeneity of the

international society (Atapattu, 2015). However, the debates surrounding the adoption

of this principle proved unfinished, as some Northern countries, as the United States in

particular, sought to cast this principle as a reflection of the North’s “superior” technical

and financial capacity rather than its duty to provide redress for past harm (Atapattu &

Gonzalez, 2015). Despite this debate, the CBDR-RC principle remains a norm of global

justice in the international society (Kiessling & Pacheco Alonso, 2019).

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Regarding climate change, this norm allowed to establish a division of responsibility

between developed and developing countries by defining the former as the main

responsible for regulating climate change within environmental governance. With the

signature of the Kyoto Protocol in 1997, this norm was institutionalized by establishing

that the developed states of the Global North, referred to as Annex I, were those

responsible for adopting measures to mitigate climate change. While countries of the

Global South (not Annex I) only committed to cooperate within the framework of the

climate change negotiations and submit periodical reports to contribute to the UNFCCC

goals (Bodansky, Brunée, Rajamani, 2017).

The ambiguity with which the norm was institutionalized within the international arena,

precisely the intent of broadening the participation of all countries, led to discussions

about the differentiation between the Parties and the way it should be applied. Thus,

discussions were held on whether the basis of implementation of the norm should be the

changing and dynamic capacities of the countries or the historical contributions regarding

GHGs emissions, a debate that has not yet been settled (Bodansky, Brunée, Rajamani,

2017). Being unclear if the CBDR-RC regulates historical responsibilities for past harm

on the environmental arena, wealth and technical capacities to diminish the

environmental impact, or represent an adaptation of the principle of the common heritage

of humankind, all these meanings can coexist in the global discourses regarding the

environment.

Since the origin of the principle in the early 90s, this international norm had an

exclusively interstate character in consolidating liberal environmentalism as a normative

complex of the global governance of climate change (Bernstein, 2001). Brazil was a

protagonist in this process by closing ranks in the negotiations with China and India to

ensure that they would not adopt legally binding mitigation commitments in the emerging

climate governance regime. This alliance laid the foundations for the future work of the

G77+China, within the climate negotiations, based on an internal work division where

Brazil held the leadership regarding scientific issues.

The performance of G77+China in this scenario was fundamental to lead to a generalized

interpretation of the norm that privileged the idea of historical responsibilities and a

strong separation between Annex I and non-Annex I countries; and to maintain, among

the Global South, the position of not accepting legally binding commitments, based on a

rigid identity definition as developing countries. However, at the beginning of the 2000s,

global climate governance gained complexity with the emergence and involvement of

new actors that led to innovative dynamics within the regime. A paradigmatic case was

the process of internalization of the CBDR–RC in the Global South, where the involvement

of non-state actors, whether accepting or contesting the content and interpretations of

the international norm, shaped the way the principle appeared in the domestic discourse.

The following paper aims to reconstruct the evolution of this dynamic by tracing the

interpretations and reinterpretations of the norm done by Brazilian state actors through

the process of localization (Acharya, 2004) of the norm in the domestic discourse on

climate change in Brazil from 2005 to 2010. The temporal delimitation responds to the

entry into force of the Kyoto Protocol in 2005 and the subsequent years through which

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the domestic climate governance was consolidated until the sanction of the Climate

Change Law in 2009 and the National Climate Change Policy in 2010. As identified in

previous research, the proposed temporal delimitation responds to the emergency of a

domestic climate change governance arena in Brazil (Kiessling, 2018; 2019; 2021).

However, it should be noted that the climate governance scenario in Brazil has undergone

drastic detrimental changes, both in its structure and in the ambition and robustness of

its regulatory body, especially since the arrival of Bolsonaro to the government in 2018.

As before this moment, Brazil led climate action in the region - particularly between 2005

to 2010 -, and the processes developed in this period continue to represent an example

to follow in Latin America; this paper focuses on the analysis and reflection on this

particular moment in the construction of Brazilian climate governance.

The article is structured in seven sections besides this introduction; the first one frames

the theoretical-methodological approach; the second and third ones describe the context

of the climate change international negotiations and the discussion of the CBDR–RC in

the Brazilian domestic context, respectively. The fourth and fifth sections illustrate the

two different interpretations of the norm approached by the Brazilian policymakers. The

sixth section presents the empirical discussion that sets forth the article's main argument.

Finally, the final reflections that recover the article's main findings are presented.

Theoretical-methodological approach

The theoretical perspective that guides this article is based on the literature about norms

internalization that attempts to specify the conditions under which international norms

find salience in particular domestic contexts. Kratochwil defines norms as speech acts

through which communication is established (Koslowski & Kratochwil, 1994). In any case,

more operational definitions are usually referred to by the literature, such as standards

of appropriate behavior for actors with a given identity (Katzenstein, 1996), prescriptions

for action in situations of choice (Cortell & Davis 2000), or in more specific; ideas with

varying degrees of abstraction and specification concerning fundamental values,

organizational principles or standardized procedures that have gained support from

states and global actors, and take place prominently in multiple forums including state

policies, laws, treaties or international agreements (Krook & True, 2010).

An essential aspect of the diffusion of international norms is their internalization in

particular national contexts. In the internalization process, the international (ideas) are

connected with the domestic (identities). Sociology and social psychology define the

internalization of norms as a process that transforms the motivations and interests of an

agent to comply with social norms, transforming adherence to the norm as a way of

avoiding punishment or obtaining rewards into compliance as an end in itself (Andrighetto

et al., 2010). Traditionally, in the literature of International Relations, it is indicated that

the states are the primary agents “generators of norms” or “acceptors of norms” (Rule-

makers vs. Rule-takers). However, with new studies on emergency, consolidation, and

internalization processes of international norms (e.g., Argomaniz, 2009, Xiaoyu, 2012),

the complexity of these dynamics has begun to be understood.

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From an interpretive epistemological approach, ideas, norms, and discourses acquire

centrality as objects of analysis. The role of ideas has been recognized in International

Relations by authors of various theoretical currents. Two major meta-theoretical

approaches inform the studies about norms internalization: rationalism and

constructivism (Cortell & Davis, 2000; Boekle, Rittberger, Wagner, 1999; e.g.). From

rationalism, it is argued that international norms modify the actors’ incentives by

providing solutions to coordination problems and reducing transaction costs. In this

context, that implies that adherence to international standards will depend on a cost-

benefit calculation and the possibilities that the rules provide to maximize the profits of

these actors.

On the other hand, in a constructivist sense, it is affirmed that international norms

provide a language and a grammar of international politics, constituting the social actors

themselves through shaping their identities and interests. For constructivism, social

actors are guided by the logic of the appropriate, opposing the assumption rooted in the

rationalist tradition where it is supposed that social action is guided only by the logic of

the consequence. Rationalists read cost-benefit calculation as the leading guide for social

action. At the same time, for constructivists, the logic of what is appropriate implies

recognizing that, for the actors, it is more critical that their practices are recognized, by

other agents and by themselves, as legitimate and appropriate to a given social context

(March & Olsen, 2008). If considerations of “appropriateness” prevail to guide the social

agency, the modalities under which climate change is initially framed as a problem that

define the “adequate” actions to address it will generate dependent trajectories (David,

2007) of these interpretations, impacting on the discourses and the future policy itself.

The latter implies considering international norms as discursive processes (Krook & True,

2010). Recognizing the discursive dimension of the norms allows us to question the

assumption that international norms maintain their essence and meaning unaltered

during internalization. Precisely, the integrity of an international norm can be questioned

after its rhetorical acceptance (Stevenson, 2013). Thus, internalization processes

necessarily imply processes of reinterpretation of the norm based on their dynamism.

Two sources of the norm’s dynamism can be recognized: external and internal ones. The

external dynamism of a norm is generated by the broader universe of existing norms and

the conflicts or alignments between them, that is, the competition that is generated

around the adoption of a particular norm or another potential alternative competitor,

whether in the same thematic area or not (Krook & True, 2010).

The internal dynamism is observed in its potential to establish competition between the

different meanings that the adoption of the norm implies itself. On the other hand, the

internal dynamism of a norm is defined by the connection made between the international

norm and its domestic reception or with the correspondence between said norm and

existing domestic norms. In other words, domestic actors are active agents in

reinterpreting the content of the norm in their adoption and not merely passive recipients

of an international system that modifies them.

To refer to the internal dynamism of international norms, it is necessary to bring up the

complementary concept of normative congruence. This concept refers to the

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internalization of international norms in national contexts as a dynamic and unpredictable

process that oscillates between perceptions of congruence and incongruence between

global norms and domestic conditions (Stevenson, 2013: 11). Following Stevenson

(2013), the construction of normative congruence can potentially take different forms

and incorporate a wide range of state and non-state domestic actors. These actors can

(consciously or unconsciously) promote change processes based on their disagreement

with the perception of incongruence (or congruence) about the international norms.

On the other hand, the concept of localization seeks to describe how the internalization

of international norms occurs in the Global South when the content of that norm has (or

is feasible to build) some linkage with preexisting domestic norms, whether they are

directly or indirectly related to the topic. A key element is that localization occurs if there

is a process of accommodation so that norms can converge with each other. Thus, the

localization of norms starts from the paradox that implies both acceptance and

contestation of the norm, enabling the construction and (re)construction of normative

convergence. Faced with this situation, localization, not the complete acceptance or total

rejection, results in most cases of normative response in the Global South domestic

contexts (Acharya, 2004). The hypothesis that guides this study is that along the process

of localization of the principle of common but differentiated responsibilities in the Brazilian

domestic context, Brazilian governmental actors were redefining their interpretations on

the subject along the lines of the different ministries that has competence over the issue

of climate change

In methodological terms, the following article recognizes the importance of discourse

analysis to understand the framing process of international standards. This concept can

be defined as a process tending to select aspects of a perceived reality and make them

more salient in discourse to promote somehow a specific definition of a problem, its

causal interpretation, moral evaluation, and recommendation for its treatment

(Stevenson, 2013). The primary sources of this research are semi-structured interviews

with state and non-state actors in Brazil, such as diplomats, members of the Ministers of

Environment, Science and Technology, NGO activists, people in business, among others;

complemented by a review of secondary sources such as official documents and academic

articles. Reading the interviews and official documents under a constructivist lens allows

us to understand how the agency of social actors of the Brazilian government and state

officials is constituted based on ideas and discourses that construct interpretations on

the scope and meaning of the international standards that regulate the global climate

governance arena. In this sense, the interviewees’ words are presented as illustrations

or snapshots of major meaning structures related to the modalities under which the social

actors embody the CBDR–RC as a valid norm, the prevailing interpretations on the same,

and its changes in time.

This article aims to study the localization process of the CBDR-RC in the Brazilian domestic context. In this

sense, the executive branch's role in Brazil is mainly explored and its links with other state and non-state

actors. For more detail on the processes of internalization of the CRDB-RC in Brazil by non-state actors, see

Kiessling (2019; 2021).

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Brazil, the CBDR–RC and the international context in the post-Kyoto

stage

The CBDR–RC, proposed by the G77+China countries, was a pillar of the Brazilian

government's position at the climate negotiations, even before the signing of the

UNFCCC. The formulation of this norm responded to a conception of justice within

international society; this meant that the countries that had caused the problem should

be the main ones responsible for addressing it and helping the less developed countries

to adapt to its inevitable impacts. Brazil's conventional position at the international

climate change negotiations was based on an interpretation of this norm that denied the

possibility of Brazil adopting any mitigation commitments in climate governance.

However, changes in the relationship between developed and emerging countries of the

Global South in international negotiations undermined the foundations on which this

interpretation was based. From 2005 with the entry into force of the Kyoto Protocol, and

especially after 2007 at COP13 in Bali, Indonesia, the developed countries began to

seriously question a top-down agenda for negotiations, which only established binding

commitments to Annex I countries. In this Conference of the Parties, the countries

presented a new way of negotiations that reflected the changes in the international

system. With the Bali Action Plan, countries recognized that climate change

responsibilities are dynamic in the long term. This plan also established a second

negotiation route, separated from the Kyoto Protocol, where a working group of

developed countries (including the United States) will negotiate future quantified

emission reduction commitments (Lessels, 2013; Albuquerque, 2019).

As a result of this breakdown and the subsequent failure of the COP15 in Copenhagen in

2009 to sign a new Kyoto-style binding treaty, the dynamic of the international

negotiation agenda is transformed by adopting a bottom-up approach that enables (and

requires) all states to submit national mitigation contributions to the UNFCCC.

In this context of a change of global governance between 2005 and 2009, the CBDR–RC

is reinterpreted at the international level to abandon interpretations that only associate

this concept with the idea of historical responsibilities leading to a clear separation

between them Annex I and non Annex I countries. This international process triggered

local processes of reinterpretation of this norm insofar as states could legitimately

support traditional interpretations in the context of the new configuration of the climate

regime (Albuquerque, 2019).

Common but Differentiated Responsibilities in Brazilian post-Kyoto

political context

Since the signing of the Kyoto Protocol in 1997, Brazil has consolidated a position in

international negotiations that can be characterized as the traditional Brazilian position

on climate change (Johnson, 2001, Viola, Franchini, & Lemos Ribeiro, 2012). In general

terms, Viola, Franchini, & Lemos Ribeiro (2012) argue that during the negotiation of the

Kyoto Protocol, Brazil held five visions that have been key in defining this position:

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− Unwavering commitment to the right to development as the framework in which the

climate change policy is inserted.

− Defense of the notion of sustainable development to integrate economic processes

with environmental defense.

− Brazil's global leadership on climate change.

− Avoid linking climate change with the regulation and preservation of forests and

jungles.

− The radical interpretation of the principle of common but differentiated responsibilities.

During the first decade of the 2000s, there was a political change regarding the power

and attributions of the ministries linked to the environmental agenda

. While at the

beginning of 2000, the Ministry of Science and Technology could be recognized as the

leading actor, there was a transition in the second half of the decade that placed the

Ministry of Environment at the center of the agenda. This transition was linked to the

internalization of the CBDR-RC and to disputes over the meaning and interpretations that

this norm should have. By 2010, four Ministries led the climate agenda in Brazil;

Environment, Finance, Foreign Affairs, and Science and Technology. These four ministries

can be briefly classified into two groups:

− On the one hand, those Ministries sought to sustain the status quo in terms of

preserving the institutions and practices already established to regulate climate

change in Brazil. Here we can locate the Ministry of Foreign Affairs (MFA) and the

Ministry of Science and Technology (MST). The first traditionally sought to limit the

interference of other Ministries in the definition of the climate policy in Brazil. They

defended the identification of Brazil as an emerging developing country, member of

the G77+China that should not completely abandon the CBDR-RC even if voluntary

commitments were assumed, as they were only demonstrations of predisposition from

a developing country to act. The MST, responsible for administering the Clean

Development Mechanism (CDM) since the mid-2000s, also accompanied this position.

From its scope of action, the Ministry was favorable to preserve the environmental

integrity of the mechanism, as one of the pillars of Brazilian foreign policy on the

subject (Kiessling, 2018).

− On the other hand, by 2012, the Ministries of the Environment (ME) and Finance (MF)

were leading the way to reinterpret the principle. The ME promoted a radical

reinterpretation of the norm, oriented to ensure greater levels of commitment, which

was supported and accompanied by other social actors such as the private and the

third sector. The preferred modality to face these new obligations, which the Ministry

Although several Ministries in Brazil compete in the framework of the climate change agenda, when the

UNFCCC was signed, a tacit alliance was established between Itamaraty and the Ministry of Science and

Technology. This alliance would have exclusivity in the definition of Brazilian climate policy (Kiessling, 2018).

In that sense, only Itamaraty participated in the formulation of the traditional Brazilian position; as it was

considered not only to be the agent who represented more consistently the Brazilian national interest but

also the one that had the most significant capabilities to do so (Viola, Franchini, Lemos Ribeiro, 2012).

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interpreted would be increasing, was adopting economic instruments much more

generalized than solely based on the flexibilization mechanisms foreseen by the Kyoto

Protocol (the CDM). Thus, the ME became favorable and promoted mechanisms such

as REDD+, among other initiatives. The MF played an important role here,

accompanying and generating the practical tools that the logic underlying the

speeches of the ME required, conforming to a symbiosis that was going to be visible,

from the year 2010, in the figure of Minister Izabella Teixeira.

In both cases, the progressive interpretations of the norm are compatible with the

reinterpretations that, in the first years of 2010, were privileging on a global scale, as

described in the previous section. The different visions are then presented in the following

table:

Table Nº1 - Interpretations of the principle of common but differentiated responsibilities

by Ministries in Brazil

Principle of common but differentiated responsibilities

Traditional interpretation of the principle

Ministry of Foreign Affairs - Ministry of Science and

Technology

Progressive interpretation of the principle

Ministry of the Environment - Ministry of Finance

Own Elaboration

The following sections will explore both interpretations in greater detail from this outline.

The traditional interpretation of the principle: the Itamaraty flag

As mentioned above, between 2007 and 2009, categorical differentiation based on

annexes was abandoned, not without resistance and contestations, in pursuit of self-

differentiation (Bodansky, Brunée, Rajamani, 2017); based on a reinterpretation of the

CBDR-RC, which shifts from the focus on historical responsibility towards one focused on

the capacities of the countries. With the recognition of this change throughout the

negotiation rounds of Bali, Itamaraty identifies that it can not continue adopting a

defensive position as it had done with the G77+China in the first round of negotiations

of Kyoto. The direct consequence of this recognition is a flexibilization of the conventional

position towards the recognition of the importance of the large developing countries in

the solution of climate change and the new role of Brazil as a great player in the global

economy:

"Developing countries like Brazil must also take action under the

Convention"

Luis Rebelo Fernandes, Executive Secretary of the MST. Excerpt from the speech given at COP 12, 2006.

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"All of us must take bigger and bolder steps to reduce emissions"...

"Responsibilities are and should be differentiated, but we can not forget that

they are also common"

"Our emissions, although they are newer and smaller, also help suffocate and

submerge the only land we have to inhabit"

Itamaraty, like the rest of the countries that would later shape the BASIC bloc, was in

favor of the two-track negotiation approach that was consolidated at COP13 in Bali (2007)

as they recognized that within the second track of the Bali Action Plan, their actions would

always be self-determined. This approach would allow Brazil, India, China, and South

Africa to increase their contributions voluntarily, responding to domestic pressures,

without these contributions being considered binding targets derived from the convention

(Lessels, 2013).

These talks between the three large developing countries occurred from the beginning of

negotiations within the G77+China. During this period (2005-2009), while recognizing

the transformations within the negotiations, Itamaraty closed ranks with India and China

to support the voluntary nature of any action Brazil could take. In this context, regular

meetings were held with China and India to coordinate even scheduled aspects, such as

the delivery dates of the National Communications to the Secretariat of the Convention

Once BASIC was established, the idea of voluntary contributions constituted in the second

track became extremely important to maintain cohesion within the coalition. It meant

that a partner country could make voluntary GHGs reductions without compromising the

others (Lessels, 2013). This way, the partners could keep the coalition united and

maintain an international identity based on their emerging status while allowing margins

of action to define domestic policies with a certain autonomy. Thus, with the conformation

of BASIC, these countries were able to slow down, or at least reduce, the speed of

transformations within the structure of global climate governance. Through this joint

action, BASIC members were able to uphold the CBDR-RC, even in the transformation of

the commitments from a top-down model to a bottom-up approach (Albuquerque, 2019).

As one respondent points out, the CBDR-RC continued to be a defensive principle despite

the transformations:

Celso Amorin, Minister of Foreign Affairs. Excerpt from a speech given at COP 12, Bali, 2007.

Carlos Minc, Minister of the Environment, Excerpt from a speech given at COP 14, Poznan, 2008.

As early as 2004, Brazil, India, and China agreed to deliver their first National Communications of the

UNFCCC during COP 10 in Buenos Aires, although the National Communication of Brazil had already been

prepared before. Although India did not comply with the stipulated and submitted its communication a few

months before the other countries, the idea was that the three would delay the delivery of communications

to avoid attention to their domestic situations and domestic policies. Delivering them jointly sought to

strengthen their position against a potential claim by the Annex I countries (Lessels, 2013).

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"So at the beginning of those discussions, there was ... the Brazilian

government used a lot of that to say that it was not going to do anything,

that it was only going to wait for several moments. For example, the Brazilian

government sometimes said ... how many developed countries did not publish

their emission inventories, we are not going to publish either, how many

countries do not send their contributions, those developed countries with

Kyoto obligations, we are not going to do either, and over time the Brazilian

government became less ... it became a little more flexible, it always

remembers that principle, but in a certain way it relaxed a bit …”

From 2005 to 2010, Brazil continued to strengthen its position within the G77+China;

where it was still the reference regarding the scientific topics of the negotiations, but also

sought to increase its influence by constructing the idea that Brazil, although a developing

country, could assist in the transfer of technology and knowledge to the less developed

countries within the frame of South-South and regional cooperation programs (Lessels,

2013):

"(...) (Brazil) was a pioneer in worldwide technological developments of clean

energy alternatives such as alcohol-based ethanol fuel. We are willing to share

this experience with other countries, especially with our sister developing

countries"

"(...) and we are willing to share this technology with other developing

countries in Africa, Asia, Latin America, and the Caribbean."

"Also, we have been able to create south-south cooperation programs for

technology transfer"

"We are not going to exclude it (the idea of transferring financing to less

developed countries). It is not a problem for Brazil to contribute to other

countries. However, it is clear that the main burden can not be on emerging

countries"

Excerpt from the interview with André Rocha Ferretti (Climate Observatory) by videoconference on August

15, 2016.

Luis Rebelo Fernandes, Secretary-General of the MST, excerpt from the speech given at COP 12, Nairobi,

2006. Citation extracted from Lessels (2013).

Celso Amorin, Minister of Foreign Affairs, excerpt from the speech given at COP 13, Bali 2007. Citation

extracted from Lessels (2013).

Izabella Mônica Teixeira, Minister of the Environment, excerpt from the speech given at COP 16, Cancun

2010. Citation extracted from Lessels (2013).

Celso Amorin, Minister of Foreign Affairs, interview with O Globo on October 14, 2009. Citation extracted

from Lessels (2013).

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At COP 15 in Copenhagen in 2009, Brazil demonstrated a willingness to help finance the

adaptation and mitigation programs for the least developed countries. In the words of

Luis Inácio Lula da Silva:

"If there is another sacrifice to be made, Brazil is willing to put money also to

help other countries. We are willing to participate in the financing if we reach

an agreement on a final proposal here at this meeting"

At the same time, the Brazilian government, as a whole, both the MMA and Itamaraty,

began to be much more receptive to enabling instances and spaces for the participation

of the organized civil society.

In 2009, Brazil announced at COP15 that it would take voluntary mitigation actions to

reduce GHGs. Based on this Brazilian decision, some concerns were unleashed within the

BASIC coalition and some G77+China countries, as it could lead to a growing demand

for more significant efforts from developing countries and substantial pressure on the

idea of mandatory goals for BASICs. However, Itamaraty maintained that the voluntary

emissions reduction was part of a national decision that was not legally associated with

any agreement of the UNFCCC, and therefore, did not imply that the other members of

the BASIC coalition should do the same; since the second way opened after Bali could

allow this alternative (Lessels, 2013).

However, this definition was not necessarily shared by the entire Brazilian government.

Thus, the ME interpretation on the process of adopting voluntary goals can be understood

from the words of an interviewee:

"Only here, even that position (the traditional Brazilian position on climate

change) in 2005, 2006, had a hegemonic weight in the government, was

sustained several times by Lula. With the release of the IPCC report, the

documentary by Al Gore, the internal movements, the information that

emissions from the developing world, India, China, Brazil came to be

equivalent to emissions from the countries of the North, that Brazil went to

Copenhagen with a quite expressive change, and arrived with voluntary goals.

This has to do with the general political movement of Lula, based on the

alignment of China with the US. When China aligns itself with the United

States, Lula made an inflection towards Sarkozy and the EU and relaxed at

two points in which Brazil was absolutely inflexible: the acceptance of goals

and adherence to the proposal of the World Environment Organization that

Brazil always resisted until 2006, although with Marina Silva we defended that

the government should change its position. Lula changes and becomes the

main head of the state in Copenhagen... it was an evolutionary process from

2003 to 2007..."

Luís Inácio Lula da Silva, President of the Republic of Brazil, 2009, COP 15, Copenhagen. Citation extracted

from Lessels (2013).

Excerpt from the interview conducted by Asher Lessels on October 14, 2011 with a high-ranking official of

the Brazilian Ministry of the Environment responsible for leading the Brazilian delegation at COP 9.

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In this way, it is observed that within the Brazilian government started to emerge and

coexist with the classic interpretation of the CBDR-RC, an approach closer to the position

held by civil society at the time (Kiessling, 2019); that would end up questioning

Itamaraty's traditional view of Brazil's responsibility in mitigating climate change. This

process will be developed in greater detail in the next section.

Progressive interpretation of the principle: the responsibilities we can

adopt

From 2003, with the arrival of Marina Silva to the ME, the hegemony of the MFA and the

MCT on the subject was broken. New voices are enabled within the sphere of discussion

that privileged the environmental aspects of climate change over Itamaraty's traditional

interpretation of the issue as a problem of development and energy use (Kiessling, 2018).

The participation of other voices in the Brazilian government continued to grow, making

a great lip with the Interministerial Committee on Climate Change (ICCC) by decree Nº

6263/07. The ICCC is coordinated by the Civil House of the Presidency of the Republic

and consists of seventeen federal agencies structured under an Executive Group (EG)

coordinated by the Ministry of Environment and composed of eight ministries and the

Brazilian Forum of Climate Changes. The CIM, through the EG, prepared in 2008 and

2009, respectively, the National Plan on Climate Change and the National Policy on

Climate Change. Thus, the characterization of the CBDR-RC begins to be reinterpreted

within the government itself in a way that focuses its attention on the common character

of responsibilities rather than on their differentiated character. This norm begins then to

be more proactively addressed (the responsibilities we can adopt) than in a defensive

way (historical responsibility) (Kiessling, 2018).

The responsibility transition from the MST to the ME, regarding the lead on the issue,

occurred gradually and continued from 2005 to 2009-2010. The Brazilian negotiators at

the COPs continued to be MFA officials, even though they intended to sustain the

traditional Brazilian position on climate change, despite suffering pressures from both

the internal changes that were impacting the official position of the country and the

transformations that were taking place within the international negotiations themselves.

On the other hand, as indicated by Lessels (2013), the technical team of the MST, little

by little, began to lose power and influence within the delegation. As of 2010, the MST

nearly no longer participates in decision-making processes on climate change, having

closed almost all operations related to the climate agenda. However, the MST he kept

within his competencies, responsibility regarding the Brazilian National Communications

to the UNFCCC, and the CDM projects' management, the regulatory and oversight

authority of this matter.

Regarding the ME, as Lessels (2013) indicates, probably for Marina Silva, the most

significant concern was not so much the issue of climate change itself, even being Marina,

an environmentalist, but that the UNFCCC negotiations were presented as an opportunity

to force changes in the country’s performance respecting forest management. Marina

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Silva was convinced that it was necessary for Brazil to establish a strong linkage between

climate and forest openly and to promote the idea that common but differentiated

responsibilities did not mean that Brazil had no responsibilities (Lessels, 2013). Thus, in

early 2005, the ME had already broken the association and identified climate change

exclusively as a matter of energy use. Under Marina’s direction, the ME also opened the

first ministerial department dedicated to climate change, giving the Ministry capabilities

to address policies on the subject.

This change had enormous importance in the subsequent years since, even though the

interpretations of the norm within the Brazilian government remained open, a proactive

interpretation of the CBDR-RC, associated with the responsibilities that Brazil can assume

based on its capabilities, was the protagonist in the governmental debates. To adopt such

an interpretation, previously, it required that climate change was framed as a joint

responsibility of humanity, where the current capacities of the states are the necessary

standard to establish mitigation goals and not their institutionalized status as a developed

or developing country.

This position was accompanied by organized civil society and the academy sector working

on this problem, who were favorable, along this process of reinterpretation of the norm,

to Brazil changing its domestic and foreign policy on climate change to adopt GHGs

reduction commitments (Kiessling, 2019). In this sense, it is worth mentioning the

existence of a micro-process of intra-case socialization, which did not involve

international actors but had a significant impact on the socialization of state actors. With

the arrival of Lula da Silva to the Presidency of Brazil, especially the Ministry of

Environment began a process of hiring specialized personnel, which to a certain extent,

impacted the agendas, policies, vision, and capabilities of the Ministry. As one interviewee

indicates:

"... I went there in 2004, more until 2003 (the MMA) had a tiny technical

body. (...), with the arrival of Marina Silva, she brought many professionals

who acted in the third sector to compose the Ministry team and there she did

the first contest, for environmental analysis, she made the contest for (. ..),

which was what I did, I worked there, and from there it was starting to build

that technical body of the Ministry that did not exist before. And the people

who were free in the market to work on that issue are the people who came

from the third sector, who were in the third sector and who went to the

Ministry to make that transition, to build, to help build that own technical

body. Then, not only (the MMA) had many alliances with the private sector

and with the third sector, but it had many people who were from the third

sector and who had gone to the Ministry to help in that construction..."

Excerpt from the interview with Beatriz Martins in São Paulo on September 26, 2016.

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Discussion and results

As the domestic discourse on climate change was resignifying and questioning the CBDR–

RC's centrality in the interpretation of Itamaraty, this movement was accompanied by

the emergence of a growing number of governmental agencies formulating options

consistent with the CBDR–RC. As argued in the literature, this signal shows the increasing

importance of an international norm in a domestic context (Cortell & Davis, 2000;

Kiessling, 2021).

The general objective of the program was to identify, plan, and coordinate the actions

and measures that could be undertaken about mitigation and adaptation to climate

change. Thus, in the first place, the formulation of the National Climate Change Plan in

2007 should be highlighted. This plan was presented as a relevant framework for

integrating and harmonizing public policies concerning the subject. The importance of

the plan lies in the assumption that this plan represents a transition in the positioning of

the government of Brazil: from an identification of the country as a developing country,

not Annex I, to a position defined by the objective of beginning to plan voluntary

mitigation and adaptation actions through the identification of economic mitigation

opportunities

However, the "postulates of the norm" and their meanings were also contested within

the government of Brazil itself, between a vision of climate change as a problem of

humanity as a whole, as an economic problem of externalities, and as a national problem

of development and use of energy.

At the federal level, a bill was submitted to the Congress of Brazil in 2008 that opened a

debate in the congress that began to accelerate towards mid-2009 when the Brazilian

government began to signal that it was going to adopt emission reduction targets in

Copenhagen

. This proposal was based on a draft made by the Climate Observatory

(Observatório do Clima). It was supported by the Executive becoming the basis of the

law that was finally sanctioned and even keeping extracts from the original project of the

Climate Observatory.

That represents the institutionalization of cooperation mechanisms between state and

non-state actors to consolidate the norm in the domestic context. This cooperation

preexisted the sanction of climate law. However, it increased significantly between 2007

and 2009 across the convergence of public, private, and third sector actors towards the

definition of the demand for an approach of national regulation of climate change that

would transcend the interpretation of CBDR–RC as historical responsibilities.

After a negotiation process within the government, the Brazilian Senate approved the

National Climate Change Policy on November 25, 2009. By the end of 2009, Carlos Minc

managed to organize a series of small meetings where the most important government

The sectors identified as mitigation opportunities will be the basis of the future sectoral plans defined by

the National Policy in 2009.

Itamaraty confirms that Brazil will have a goal against global warming. Folha de São Paulo. 08/12/2009

(https://www1.folha.uol.com.br/ambiente/2009/08/608523-itamaraty-confirma-que-brasil-tera-meta-

contra-aquecimento.shtml). Last online consultation: 09/09/2021.

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actors came together to discuss Brazil's possible voluntary reductions of GHG emissions.

In these four private meetings in the Planalto Palace in Brasilia were present, among

others, Lula, president of the Republic; Dilma Rousseff, Chief of the Civil House of the

Presidency; Carlos Minc, Minister of the Environment; Sergio Rezende, Minister of

Science and Technology; and Celso Amorim, Minister of Foreign Affairs (Lessels 2013).

By the end of the third meeting, the political actors converge in favor of adopting

announced voluntary goals. Then, formally, the National Climate Change Policy was

approved and sanctioned as a law by the president of the Republic on December 20,

2009

. This policy announces reductions of between 36.1% and 38.9% concerning the

emission levels expected for 2020 in a BAU scenario.

"We made a commitment, and we approved it in the National Congress,

transforming into law the fact that Brazil, until 2020, will reduce greenhouse

gas emissions from 36.1% to 38.9% based on what we consider important:

change in the Brazilian agriculture system; change in the Brazilian steel

system, change, and improvement of our energy matrix, which is already one

of the cleanest in the world; and we assume the commitment to reduce the

deforestation of the Amazon by 80% until 2020"

Thus, with the enactment of the law in December 2009, it can be observed that the two

indicators that Cortell and Davis (2000) recognize to analyze this institutionalization

empirically were met; namely, changes in the national discourse, as well as modifications

in institutions and state policies (Cortell & Davis, 2000).

Final thoughts

This article described the modalities under which the Common but Differentiated

Responsibilities principle was internalized and localized in Brazilian national politics. It

was demonstrated that this norm was adopted early by Brazilian diplomacy to prevent

Brazil from adopting binding greenhouse gas reduction targets. In general terms, towards

the year 2003, with the arrival of Marina Silva to the Ministry of the Environment, this

norm begins to be reinterpreted within the government itself in a way that focuses its

attention on the shared nature of responsibilities rather than on its differentiated

character. In this sense, more proactive approaches to the principle (the responsibilities

we can adopt) started to gain traction versus defensive approaches (historical

responsibilities). This reinterpretation of the norm reached a high point in 2009 with the

enactment of the climate change law and the adoption of voluntary commitments by the

Brazilian government. However, this reinterpretation was not consolidated as hegemonic

President Lula vetoed three articles of the original law in an action that some observers interpreted as a

defense of the oil sector (For example https://www1.folha.uol.com.br/ambiente/2009/12/672320 -lula-

must-sanction-lei-do-clima-mas-protects-setor-do-petroleo.shtml).

Luis Inácio Lula da Silva, President of the Republic of Brazil, 2009, Excerpt from the speech given at COP

15, Copenhagen. Citation extracted from Lessels (2013).

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within the country, mainly due to Itamaraty holding a more rigid interpretation of the

norm

Since then, Brazil's climate policy and governance have undergone major changes,

mainly due to two significant milestones, the signing and entry into force of the Paris

Agreement and the rise to power of Jair Bolsonaro.

With the signing of the Paris Agreement in 2015 and its subsequent entry into force in

2016, the CBDR–RC underwent transformations that reduced its centrality as a guiding

principle of global climate governance. However, in the national arena, the debates

around the different interpretations of the principle once again became relevant in the

elaboration of Brazil's Nationally Determined Contribution.

A few years later, the rise to power of Jair Bolsonaro meant setbacks in the ambition and

robustness of Brazilian climate policy. Both in discursive terms and the actions that were

taken, the position of the new government on the climate crisis meant the dismantling

of environmental regulations, the disappearance of the issue from the government

agenda, and the space for leadership in climate action by non-state actors - at the

internal level - and from other countries - at the regional level -.

Thus, future research could address the following questions arising from this article: 1)

How did the signing of the Paris Agreement influence Brazilian domestic discussions and

debates on the CBDR–RC? 2) How did this interpretation of the CBDR–RC by the Ministry

of Foreign Affairs influence the possibilities of exercising Brazilian regional leadership on

climate change? Furthermore, 3) How did the location impact the arrival to the

government of Jair Bolsonaro in Brazil in 2018 and the process of contesting the

environmental protection regulations?

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OBSERVARE

Universidade Autónoma de Lisboa

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171

PHARMACEUTICAL PATENTS AND THE RIGHT TO HEALTH - PORTUGAL AND

BRAZIL

RUBEN BAHAMONDE DELGADO

rbahamonde@autonoma.pt

Associate Professor at the Law Department of Universidade Autónoma de Lisboa (Portugal).

Coordinator and Integrated Researcher at Ratio Legis – Centre for Research and Development in

Legal Sciences of Universidade Autónoma de Lisboa [Project: Self-tutelage and implementation of

Private Law].

Abstract

The defence of the patent system's legitimacy, namely in the pharmaceutical field, is

consolidated, although it is not exempt from criticism. Historically, when the patent law, a

legal monopoly right, is confronted with the right of access to health, which includes the right

to the medicines necessary for its care, the mechanisms that have been established are scarce

and weak. Nonetheless, one must recognize due merit in the search for a balance between

the exclusive right of the holder of the legal monopoly and the right of the community to

generalized access to medicines necessary to fulfil the right to health. In the current context

of the covid-19 disease, where access to health care for all countries, rich and poor, is at

stake, it seems that there is a greater will to make the right to health prevail over the property

right of the holder of a pharmaceutical patent.

Keywords

Pharmaceutical patents; right to health; access to essential medicines

How to cite this article

Delgado, Ruben Bahamonde (2022). Pharmaceutical patents and the right to health – Portugal

and Brazil. In Janus.net, e-journal of international relations. Vol13, Nº. 1, May-October 2022.

Consulted [online] on the date of the last visit, https://doi.org/10.26619/1647-7251.13.1.11

Article received on Sepember 29, 2021 and accepted for publication on February 18,

2022

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PHARMACEUTICAL PATENTS AND THE RIGHT TO HEALTH -

PORTUGAL AND BRAZIL

RUBEN BAHAMONDE DELGADO

Introduction

The problem resulting from the confrontation between the right to health and industrial

property rights is not new, nor exclusive to the Portuguese-Brazilian reality. However,

the new challenges, namely those resulting from covid-19, require a greater and better

clarification of this confrontation

. Indeed, the traditional paradigm of the interaction

between the right to health and industrial property that has as its object medicines has

focused on the confrontation of interests between rich or developed countries, where

there are several companies holding pharmaceutical patents, and poor or less developed

countries, where there are few economic and financial means to guarantee access to

such medicines and where there are serious and widespread health problems. In the

current context, one can say that covid-19 has levelled state economies, as many

countries traditionally considered rich or developed do not have the industrial property

necessary to produce a drug/vaccine to treat covid-19, thus becoming dependent on the

solutions that appear on the market, obviously protected by industrial property, in order

to be able to provide timely and adequate access to healthcare for its citizens. In these

cases, although the countries concerned have the means to acquire the medicines

protected by patents, they may not be available in the desired quantities, prices and

dates. This situation reveals a scenario of high selling prices of the solutions found,

protected by pharmaceutical patents, assuming that the normal and free functioning of

the market will allow access to such solutions to those countries that are in the best

conditions to pay a higher price, thus relegating to the background countries that have

fewer economic resources. Covid-19 is not HIV/AIDS, nor bronchitis, nor tuberculosis. It

affects all layers of society in all societies in all countries of the world in very worrying

numbers and without there being a standard of very clear prevention/protection in terms

of effectiveness. The problem is not new, but the fact that in the current context a

significant number of human beings belonging to rich or more developed countries are

Article translated by Carolina Peralta.

Covid-19 is the official name of the disease caused by the severe acute respiratory syndrome coronavirus

2 (SARS-CoV-2), first identified in 2019, and which in this work we will refer only as covid-19.

https://www.volp-acl.pt/index.php/item/covid-19

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173

affected, should generate greater pressure/availability to face this situation from another

perspective.

Patents in the international context

Patents have as their object inventions and consist of an exclusive right or legal

monopolies conferred by the corresponding entities to those who apply for them,

provided that the enabling legal requirements for that purpose are met (Bahamonde,

2016, pp. 163-167). In order for an invention to be granted this protection, it will be

necessary that the requirements of novelty, inventive capacity and industrial use are

cumulatively met

. Inventions for which patent protection can be claimed may concern

objects, a particular substance or a device, or they may concern procedures, where what

is protected is not the result, but the sequence of steps taken to achieve this particular

result. In this context, inventions regarding medicines or specific procedures to obtain

substances useful for the treatment of diseases are also likely to benefit from the

protection conferred by the patent system.

The patent system is characterized by being nationally based, i.e. the patent is granted

by the competent authority of a state and is valid for that state. However, due to the

important role that patents play in economic legal traffic, and specifically for the

development of markets tending to be characterized by the need to promote their growth

through internationalization and globalization, the need to homogenize this matter arose.

Thus, it can be said that the first positive interest in creating a system that would allow

homogenizing the patent system was at the Paris Union Convention for the protection of

Industrial Property of 1883

. Without intending to refer exhaustively to the

aforementioned legislation, it is worth highlighting its main characteristics related to our

topic. In this sense, the unionist priority was established (Article 4/C-1). It was the

possibility of granting compulsory licences in the face of abusive exercise of the exclusive

right granted by the patent (5A-2) and the possible introduction of patent expiry as a

subsidiary measure to the system of compulsory licences (5A-3)

Much more recently, in the Final Act of Marrakech of 1994, which contained the results

of the Uruguay Round negotiations, within the scope of the World Trade Organization

(WTO), and had its precedents in the General Agreement on Customs and Trade (GATT)

the Agreement on Trade-Related Industrial Property Rights (TRIPS) was adopted. Since

the main scope of the aforementioned agreement is the adoption of measures and

procedures that allow the reduction of distortions to international trade related to the

In Portugal, see Article 1 of Decree-Law no. 110/2018, of 10 December, which approved the new Industrial

Property Code. In Brazil, see Article 1 of Law No. 9.297, of 14 May 1996, diploma that regulates rights and

obligations related to industrial property

Paris Convention for the Protection of Industrial Property of 20 March 1883, last amended on 2 October

1979, available at https://www.wipo.int/edocs/pubdocs/pt/wipo_pub_201.pdf.

The expiry action can only be activated two years after the granting of the first compulsory licence. With

regard to compulsory licences, based on speech or insufficient use, they cannot be requested before the

expiry of the period of four years from the filing of the patent application, or three years from the granting

of the patent. The longest term will be applicable (5A-4).

General Agreement on Tariffs and Trade established in 1947, which, through the Uruguay Round, gave rise

to the World Trade Organization in 1994 (Marrakech Declaration of 15 April 1994). For additional

information, see https://www.wto.org.

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effective protection of intellectual property rights, the special needs of the least advanced

signatory countries are expressly recognized, requiring, in these cases, a more flexible

application of the rules in question so that a viable technological base can be created. In

this context, the agreement establishes the possibility for the signatory countries to

exclude the patentability of inventions whose commercial use in their territory must be

prevented in order to protect the health or life of people and animals. It also provides for

the possibility of using the patent granted without the holder's consent in national

emergency situations

Despite the aforementioned mechanisms, the relationship between the pharmaceutical

industry and the signatory States, namely those less evolved in terms of ownership of

industrial property rights in the pharmaceutical field, increased the tension between the

protection of property and the right to health that the States must guarantee to their

citizens. In this context, the DOHA Declaration on the TRIPS Agreement and public health

was made on 14 November 2001

. This declaration was based on the seriousness of the

public health problems that affected many developing countries, with particular relevance

to HIV/AIDS, tuberculosis, malaria and other epidemics, namely in Brazil, South Africa

and India (Orsi, 2007: 1997-2003; Polônio, 2006: 68; Cullet, 2003: 147-154). Despite

the recognition of the fundamental importance of intellectual property protection for the

development of new medicines, the legitimacy of the Member States to adopt measures

aimed at protecting public health is also underlined, imposing the obligation that the

TRIPS agreement be interpreted in the sense of supporting the right of WTO Members to

protect health. The document reiterates the possibility for States to grant compulsory

licences and their right to determine what constitutes, in each case, a national emergency

or other circumstances of extreme urgency. To avoid further confusion, it is specifically

recognized that public health crises, including those related to HIV/AIDS, tuberculosis,

malaria and other epidemics, may represent a national emergency or other

circumstances of extreme urgency

. Finally, the most relevant aspect of this document

is the recognition of the inefficiency of the compulsory licensing system when it comes

to countries whose manufacturing capacities in the pharmaceutical sector are insufficient

or non-existent, which will necessarily lead to more creative solutions in this type of

situation (Pontes, 2017: 49). To try to overcome this difficulty, after the DOHA

Declaration, several decisions were adopted in order to allow cheaper generic medicines

manufactured under compulsory licences in case the importing countries are not able to

Article 27(2) of the TRIPS requires that this deviation from the rule, in addition to being supported by the

corresponding legislation, must be based on the reasons provided for the protection, among others, of

health. In addition, and without prejudice to the protection of the invention through a patent, article 31

establishes several situations in which the right in question can be used by third parties without the

authorization of the holder. Namely, paragraph b) refers to national emergency situations or situations of

extreme urgency or cases of public non-commercial use.

Article 27(2) of the TRIPS requires that this deviation from the rule, in addition to being supported by the

corresponding legislation, must be based on the reasons provided for the protection, among others, of said

health. In addition, and without prejudice to the protection of the invention through a patent, article 31

establishes several situations in which the right in question can be used by third parties without the

authorization of the holder. Namely, paragraph b) refers to national emergency situations or situations of

extreme urgency or cases of public non-commercial use.

WTO Ministerial Conference (DOHA, 2001): TRIPS, WT/MIN/(01)DEC/2, 20 November 2001, available at

https://www.wto.org/spanish/thewto_s/minist_s/min01_s/mindecl_trips_s.htm

See point 5(c) of the Declaration on the TRIPS Agreement and public health.

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manufacture them themselves. Thus, exporting countries were exempted from the

obligations arising from subparagraph f) of article 31 of the TRIPS, allowing any Member

country to export generic pharmaceutical products manufactured under compulsory

licences to satisfy the needs of importing countries, provided that certain conditions are

met

. In 2017, it was decided to add article 31bis to the Agreement, thus allowing

importing countries to distribute the imported medicinal product under licence in

countries belonging to the same economic area and facing the same health emergency

situation

Following this path, the European Union has also sought to clarify the problem of the

supply of generic medicines manufactured using compulsory licences when its Members

are States experiencing public health problems (Fernández-Nóvoa, 2017: 201-206)

It is also important to mention that the problems resulting from the exercise of rights

arising from pharmaceutical patents are not limited exclusively to the least developed

countries. Indeed, as far as the most advanced countries are concerned, and with the

means to produce the drugs in question, the question arises in terms of assessing from

which moment the knowledge protected by a pharmaceutical patent can be used, to give

initiation to the necessary legalization procedures, aimed at the production and

subsequent commercialization of a generic drug. This issue gave rise to the well-known

“Bolar provision”, which relates to the interpretation of Article 30 TRIPS and the

possibility, widely contemplated in legal systems, of allowing the use of knowledge

protected by a patent for experimental or research purposes

. The Bolar provision goes

beyond this situation, establishing an exception that allows the experimental use of a

product protected by patent to carry out the necessary administrative procedures aimed

at authorizing the marketing of the generic product in question, essentially based on the

requirement to respond to social needs , namely the rapid introduction of affordable

medicines (Tudor, 2018: 300-308)

Alongside these instruments, and collaborating in the search for solutions to the exposed

problems, there are other important international organizations such as the World

Intellectual Property Organization (WIPO)

or the World Health Organization (WHO),

namely through the Commission on Intellectual Property Rights, Innovation and Public

Decision of 6 December 2005 — Amendment of the TRIPS Agreement; Decision to extend the deadline for

accepting the amendment to the TRIPS Agreement, 2015; Decision on application by least developed

member countries — Obligations under Article 70(8) and (9) of the TRIPS Agreement relating to

pharmaceuticals, 2015 and Decision on the extension of the transition period under Article 66(1) of the

TRIPS Agreement for least developed member countries in relation to certain obligations relating to

pharmaceuticals, 2015.

See Article 31bisd in full, updated in March 2020

https://www.wto.org/english/res_e/publications_e/ai17_e/trips_art31_bis_oth.pdf

Regulation (EC) No 816/2006 of the European Parliament and of the Council of 17 May 2006 on the granting

of compulsory licences for patents relating to the manufacture of pharmaceutical products intended for

export to countries with public health problems.

See. subparagraph c) of no. 1 of article 103 of the Portuguese Industrial Property Code and item II, article

43, of Law no. 9.297, of 14 May 1996, which regulates rights and obligations related to industrial property

in Brazil.

In any case, the aforementioned clause does not preclude the need for the basic patent or the

complementary protection certificate to be expired in order to start marketing the generic product.

See https://www.wipo.int/patent-law/en/developments/publichealth.html

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Health

, which, with their studies and recommendations, have greatly contributed to the

evolution of the treatment given to pharmaceutical patents when related to access to the

right to health in developing or less developed countries. Industrial property, as a

property right or as a protection for the authorship of creations, finds a legal basis in the

Universal Declaration of Human Rights of 1948, namely in article 17 on the right to

property and in paragraph 2 of article 27 on moral and material interests of authors

and in the International Covenant on Economic, Social and Cultural Rights, (1966/1976)

which recognizes, in paragraph c) of point 1 of article 15, the protection of authors'

interests

In the latter case, it should be noted that the Committee on Economic, Social and Cultural

Rights, in the general observation of Article 17, specifies in its introduction the need to

differentiate between human rights as such and intellectual property regimes, making it

clear that intellectual property rights should not be equated with the human right

recognized in paragraph c) of point 1 of article 15 of the Covenant

. To justify this

position, among other arguments, the Committee specifies that human rights are

fundamental because they are inherent to the human person as such, whereas

intellectual property rights are mainly means used by States to stimulate creativity and

inventiveness, protecting itself through intellectual property regimes, namely commercial

and business investments. The Charter of Fundamental Rights of the European Union of

2000 (Article 17) also protects the right to property in the terms that were already

provided for in the European Convention on Human Rights of 1950

It should also be noted that the treatment of patents at international level has been given

wide prominence, namely through the Patent Cooperation Treaty (PCT), whose objective

is to simplify the procedures for obtaining protection of inventions through patents in the

various signatory States. In the current context of covid-19, the WIPO International

Secretariat has made some rules more flexible, namely interpreting the current pandemic

situation as being covered by the tolerance of delays in meeting the PCT deadlines

. At

supranational level, we have in the European context the Munich Convention on the

European Patent Organization (EPO) of 1973, whose objective is also to simplify the

procedures for obtaining protection for inventions in the signatory States and the much

more ambitious project of the European Patent with Unitary effect, where the ultimate

See https://www.who.int/intellectualproperty/en/

Everyone has the right to the protection of the moral and material interests linked to any scientific, literary

or artistic production of their authorship.

The States Parties to this Covenant recognize the right of every person to (…) benefit from the protection

of the moral and material interests that correspond to them by virtue of scientific, literary or artistic

productions of which they are the author.

UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 17: The Right of

Everyone to Benefit from the Protection of the Moral and Material Interests Resulting from any Scientific,

Literary or Artistic Production of Which He or She is the Author (Art. 15, Para. 1 (c) of the Covenant), 12

January 2006, E/C.12/GC/17. https://www.refworld.org/docid/441543594.html

The European Convention on Human Rights and Fundamental Freedoms (Rome, 04.11.1950) introduced,

through its additional protocol in 1952, article 1 on the protection of property, which states: “No one may

be deprived of his or her possessions except in the public interest and in the cases and under the conditions

provided for by law”.

Patent Cooperation Treaty made in Washington on 19.06.1970, last modified on 30.10.2001. See PCT Rule

82Q.

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objective would be to create a single procedure for the protection in several Member

States of an invention through a patent

With this contextualization, it is evident that the protection of inventions through patents

has achieved a significant homogenization at international level, promoted mainly by

commercial interests (Bahamonde, 2016: 167-171). However, as a counterpoint to

commercial interests, the analysed rules also state a clear concern with the protection of

social interests, namely in the field of health, with several mechanisms being foreseen to

achieve the desired balance between all the interests at stake.

Patents in the Portuguese-Brazilian national context

As seen above, without being exhaustive, there is a vast international treatment of the

protection of inventions as one of the typologies of industrial/intellectual property

, so

the majority of national legal systems tend to be quite homogeneous, namely in the

Portuguese-Brazilian case. Still, it will be interesting to analyse the mechanisms

specifically provided for in each of the legal systems in question, to ensure a certain

balance with regard to patents and other interests.

The Portuguese Industrial Property Code (CPI) establishes, in line with other codes on

the matter, that patents can be obtained for any inventions, whether products or

processes, in all fields of technology, as long as they are new inventions, imply an

inventive step and are susceptible of industrial use

. Article 50(5) of the CPI also

provides for the possibility of protecting the same invention either through a patent

application or through a utility model application. However, with regard to the specific

field of protection of pharmaceutical products or procedures, it is established that

inventions that affect pharmaceutical substances or compositions and pharmaceutical

processes cannot be object of a utility model

. Thus, inventions that relate to

pharmaceutical products or procedures can only be protected through a patent, thus

guaranteeing a more rigorous system for the protection of these inventions (Sousa e

Silva, 2011: 87-90)

The legal monopoly right granted to the patent holder is not absolute, and, in this line,

the Portuguese legislator has established several mechanisms to limit it in situations of

justified interest. As seen above, the right conferred by the patent does not allow its

holder to prohibit acts for testing or experimental purposes (103/1/c), thus allowing the

Decision 2011/167/EU of the European Council, of 10 March 2011, authorizing enhanced cooperation in the

field of the creation of unitary patent protection. Regulation (EU) No 1257/2012 of the European Parliament

and of the Council of 17 December 2012, which regulates enhanced cooperation in the field of the creation

of unitary patent protection and Regulation (EU) No 1260/2012 of the Council of 17 December 2012, which

regulates enhanced cooperation in the field of the creation of unitary patent protection with regard to the

applicable translation regime and the Agreement on the Unified Patent Court of 19 February 2013.

Intellectual property generically refers to copyright and industrial property itself, so when dealing with the

matter of patents we believe it is more appropriate to use the term industrial property.

See Article 1 of Decree-Law No. 110/2018, of 10 December, which approved the new Industrial Property

Code.

Subparagraph d) of no. 1 of article 121 of the CPI.

In fact, inventions protected through the utility model have a lower requirement for inventive step, which

translates into faster protection, but at the same time more tenuous and precarious.

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protected and published knowledge to immediately contribute to the scientific

development of the respective area of application. Subparagraph b) of the same norm

also excludes from the patent holder's powers the possibility of preventing the

preparation of medicines made at the time and for individual cases or preparatory

procedures. Article 108 of the CPI also provides for the possibility of granting compulsory

licences in the event of lack of or insufficient use of the patented invention (109th), in

the event of dependence between patents (110) and for reasons of public interest (111).

In the latter case, the licence will be granted by order of the member of the Government

responsible for the matter, considering that there is a reason for public interest when the

increase or generalization of the use of the invention, or the improvement of the

conditions under which such utilisation takes place, are of paramount importance to

public health. The possibility of loss or expropriation of the patent is also foreseen in the

case of having to answer for obligations contracted with others or for public utility,

situation in which the rules of the Code of Expropriations will apply

All these limitations result from the balance between the nature of the law in question

and that of other areas of law where friction can occur. It is true that the qualification of

the industrial property right as a property right, i.e., within the scope of article 62 of the

Constitution of the Portuguese Republic (CRP), is not pacific in terms of doctrine, as it

consists, at the limit, of a sui generis property right. However, even with specificities,

what is undeniable is that our legal system recognizes its nature, hence, it can be

expropriated, which corresponds to one of the possible limitations of the property right.

On the other hand, this right could also find protection within the scope of paragraph 2

of article 42 CRP (Freedom of cultural creation)

. In this sense, regarding the nature of

the industrial property right in Portugal, when confronted with the right to health, the

Constitutional Court ruled in judgment no. 216/2015 that despite the evident

constitutional protection of patents and the rights arising from them, it is unequivocal

that they yield to the fundamental right of health protection“

See Article 107 CPI

On the one hand, paragraph 2 of article 42 CRP is a fundamental right that enjoys the enhanced protection

of article 18, and the property right established in article 62 CRP is a fundamental right of a similar nature.

In this sense, see the ruling of the Southern Central Administrative Court (TCAS) of 05.06.2010 in the scope

of case No. 06154/10, where the Rapporteur was Dr Teresa de Sousa, establishing that “The property right

enshrined in art. 62 of the CRP, which covers industrial property rights, including rights based on drug

patents, has been considered a fundamental right similar in nature to the rights, freedoms and guarantees

for the purposes of applying the contents of articles 17 and 18 of the CRP”. This decision is very relevant

as it was pronounced with the losing vote of Dr Benjamin Barbosa, whose reasoning was later confirmed by

the Constitutional Court ruling below.

Decision No. 216/2015 of the Constitutional Court, 2nd section, delivered within the scope of case 207/2013.

The decision in question assessed the constitutionality of Law no. 62/2011 of 12 December with regard to

the procedure for the Marketing Authorization (MA) and the Retail Price (RRP) of generic drugs that could

infringe a patent. In this procedure, INFARMED could not assess the violation of a previous patent, so the

marketing of a generic drug could be approved, although it could later be demonstrated that it violated a

previous right. Quoting Professor Paulo Otero, he echoes the point that "the proximity and essentiality of

guaranteeing health with the dignity of the human person, in a State model where people are worth more

than things or property, and the understanding that the limitation or restriction of exclusive rights arising

from patents translates into an expansion of freedom, in a State model that privileges freedom over

property, lead to an abstract constitutional solution that gives preference to the position that defends the

introduction of generic medicines into the market, in view of the patrimonial content position defended by

patent holders on reference medicines."

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In turn, the Brazilian Industrial Property Law also establishes several limitations to the

patent holder's right in the same way as the Portuguese legal system. In fact, the patent

holder cannot prevent acts performed by unauthorized third parties, with experimental

purposes, related to scientific or technological studies or research (43/II), nor prevent

the preparation of medicines according to medical prescription for individual cases

performed by a qualified professional, as well as the drug thus prepared (43/II). A central

role in this set of limitations is the compulsory licence that may be imposed when the

object of the patent is not used in Brazilian territory, due to lack of manufacture or

incomplete manufacture of the product (68 §1/I) and when the commercialization of the

protected object or process does not satisfy the needs of the national market (68 §1/I)

and, likewise, in the event of dependence between patents (70). Finally, in situations of

national emergency or public interest, declared in an act of the Federal Executive branch,

as long as the patent holder or its licence holder do not meet this need, a compulsory

licence may be granted

With regard to the constitutional protection of patents in Brazil, it is worth noting the

greater clarity with which the Brazilian constituent expressed it when specifically

enshrining in Title II of the Constitution of the Federative Republic of Brazil (CRFB), on

fundamental rights and guarantees, the guarantee that “the law will grant the authors of

industrial inventions a temporary privilege for their use, as well as protection of industrial

creations, the ownership of trademarks, company names and other distinctive signs, with

a view to social and technological interest and the country's economic and technological

development”

. In other words, the Brazilian Magna Carta directly views patents not as

a property right, but as a temporary privilege, subjecting their attribution and exercise

to the technological and economic social interest.

At first glance, we can point out the following relevant differences between the

Portuguese and the Brazilian legal systems. In the Portuguese one, the possibility of

expropriation of the patent right was expressly foreseen when based on reasons of public

utility, which is not provided for in Law n. 9.279 of 14 May 1999 (LPI) in Brazil. This is

evaluated positively, as it recognizes a preventive function, allowing patent holders to be

aware of the serious consequences that can arise from a deficient use of their right, also

making it easier to justify drastic decisions in extreme situations, such as during the

current pandemic, within its corresponding regulatory framework

In Brazil, the legislator specifically provided for the possibility of granting compulsory

licences if the patent holder abusively exercises the rights arising therefrom, or through

it practices abuse of economic power, proven under the law, by administrative or judicial

decision (68). In this case, we do not find a similar principle in the Portuguese CPI,

perhaps because if this behaviour were to occur, we would be faced with a possible

This issue was developed by Decree No. 3.201, of 6 October 1999, which provides for the granting, ex

officio, of a compulsory licence in cases of national emergency and public interest, as provided for in art.

71 of Law No. 9.279 of 14 May.

See item XXIX of article 5 of the CRFB.

Despite the goodness of the rule, at present, it is not known any situation when the Portuguese State has

applied it in practice.

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situation of abuse of a dominant position within the scope of article 11 of the Competition

Law or article 102 of the Treaty on the Functioning of the European Union

However, as there is a wide interaction and/or complementarity (Pérez, 2018: 372-393;

Bahamonde, 2016: 166-167) between industrial property law and competition law, this

provision in the Brazilian legal system seems to us to be systematically relevant, as it

reinforces legal certainty in the application of this mechanism, unlike what happens in

Portugal

Both legal systems focus their reaction mechanism in the face of lack of use or insufficient

use by the patent holder in the field of compulsory licences (Palmela, 2016). Regarding

them, it is necessary not to be too encouraging with the prospects for the future, because

in fact, it has never been used in Portugal, and in Brazil (EFAVIRENZ) it was only used

once

. However, we believe that the mere affirmation of the possibility of compulsory

licencing will allow any negotiations between the parties involved to be more

compromised.

The central role of compulsory licences

From the above, it follows that compulsory licences are the most common mechanism to

offset possible imbalances arising from the exclusivity right conferred by a

pharmaceutical patent

The compulsory licencing regime in Brazil and Portugal basically provides for two

modalities with regard to patents related to medicines. Firstly, a compulsory licence,

which requires confirmation of insufficient use of the invention to supply the national

market. In these circumstances, the Portuguese rule requires, prior to its granting, that

the applicant has made efforts to obtain from the patent holder a contractual licence

under acceptable commercial conditions, and that such efforts are not successful within

a reasonable period (108/3). In turn, the Brazilian rule requires that the applicant has a

legitimate interest and technical and economic capacity to carry out the efficient use of

the object of the patent (68/§2). In fact, these two rules coincide in the need to confirm

that the applicant is a serious candidate and that he has the conditions and commitment

to use the licence to supply the market. In both systems, this licence is expected to be

non-exclusive, non-sublicensable, revocable, and remunerated

Secondly, we have compulsory licences justified by national emergency situations or

public interest, in which case pre-requisites for granting them are waived. In these

Law No. 19/2012, of 8 May, which established the new legal system for competition.

This was also the option of the Spanish legislator provided for in article 94 of Law 24/2015, of 24 July, on

Patents.

Through the publication in the Official Gazette of the Union of Decree no. 6.108, of 4 May 2007, which

granted the compulsory licencing, in the public interest, of the patents related to EFAVIRENZ, for the

purpose of non-commercial public use.

See articles 30 and 31 of the TRIPS agreement, article 109 of the CPI and article 68 and following of Law

No. 9.279, of 14 May 1996. However, its use is very scarce, so it is common to say that it fell far short of

the expectations placed in it (Fernández-Nóvoa, 2017: 197-206).

This similarity of the norms under analysis results from the imposition that arises for the States of the TRIPS

agreement, specifically from article 30.

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situations, the Brazilian legislator allows the granting of a compulsory licence when it is

shown that, in the face of a national emergency or public interest, the patent holder does

not meet this need (Remédio, 2011: 399-400; Couto, 2005: 116-119). For its part, the

Portuguese legislator also requires a public interest reason for the use of this measure.

However, it differs from its Brazilian counterpart in that it is not required that the owner

improperly uses the invention, i.e., the owner of the invention may be making every

effort to satisfactorily use the invention, and even to be succeeding, but even then, for

reasons of public health, he may be obliged to grant a compulsory licence. Apparently,

the Portuguese norm is a little more restrictive than the Brazilian norm, although an

extensive interpretation of this norm allows reaching the same understanding in Brazil.

The Portuguese-Brazilian compulsory licencing system is clearly the result of a

“transposition” of article 31 TRIPS, resulting from both countries’ membership of the

World Trade Organization. In practical terms in Portugal, compulsory licences have not

gone beyond paper, insofar as they are only the subject of academic study, as none have

been enforced to date.

In turn, in Brazil there is only one specific situation when a compulsory licence

(EFAVIRENZ) was granted. However, in the global context, the reality is more

encouraging, as it appears that compulsory licences are used more than what is generally

thought or known.

In fact, in a study carried out on the subject, 81 compulsory licences were identified

between 2001 and 2016, which also include developed countries, as a result of the high

price of certain medicines (Hoen, 2016: 186-187).

We can thus conclude that compulsory licences have been used in a very timid way,

having the potential to constitute an adequate response to overcome the barriers that

pharmaceutical patents may pose to the realization of the right to access medicines and,

in turn, to the right to health. Additionally, it can always be argued that its legal provision

gives it a preventive and dissuasive use of deviant behaviour on the part of the patent

holder, which undoubtedly has encouraged the granting of voluntary licences.

The “recent” possibility of drug protection through patents

It is important to point out that both Brazil and Portugal joined the WTO on 01.01.1995,

and that, until that date, protection of medicines through patents was not allowed in

Brazil (Nunes, 2009, pp. 13-18). Indeed, as a result of its accession to the WTO, the LPI,

in the sole paragraph of article 229 of Title VIII, of the transitional and final provisions,

states

“To the requests relating to pharmaceuticals and agricultural chemicals,

which were filed between 1 January 1995 and 14 May 1997, the patentability

criteria of this Law apply on the effective date of filing of the application in

Brazil or of priority, if any, ensuring protection from the date of granting the

Law No. 9.279, of 14 May 1996, whose content was inserted by Law No. 10.196, of 2001.

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patent for the remaining period from the day of filing in Brazil, limited to the

period provided for in art. 40”.

In Portugal, Decree 30679 of 24 August, which approved the Industrial Property Code of

1940, provided that the following could not be subject to patents (Article 5, no. 3:

“food, as well as pharmaceutical products and preparations, intended for

humans or animals, although the devices or systems for their manufacture

may be patented”.

However, with the accession to the European Patent Convention (EPC) in 01/01/1992,

Portugal became the recipient country of a pharmaceutical product patent application.

Indeed, Articles 52 and 53 of the Convention allow for patent protection of a

pharmaceutical invention, with no specific exclusion preventing it.

Paradoxically in this period, in Portuguese territory it is possible to apply through the

European Patent for the protection of a medicine, although its patent protection through

the national route is not allowed.

Although Portugal is obliged to implement the TRIPS Agreement only as of 01/01/1996,

as provided for in article 65, no. 1, its compliance was anticipated with the approval of

the Industrial Property Code, through Decree-Law no. 16/95, of 24 January, which came

into force on 01/06/1995 (art. 9) and adjusted national legislation to the TRIPS

Agreement, allowing the patenting of pharmaceutical products (Articles 47 to 49).

In this analysis, it is important to remember that, prior to the TRIPS Agreement and

despite the existence of rules regarding the protection granted by patents, the CUP

enabled signatory countries to establish their own internal rules, namely, establishing

what could or could not be the subject of patent. In other words, the signatory countries

could choose to protect in their national territories the drug inventions through patents

or, on the contrary, they could prohibit the protection through patents of drug inventions.

In practice, this implied that the fact that an inventor could patent a drug in a given

national territory did not prevent third parties from using the knowledge underlying that

patent in another territory where the invention was not patentable.

From the above, it is clear that there is a national and international regulatory framework

for the protection of inventions of medicines through patents. However, it should not be

forgotten that the inclusion of drug inventions in the protection of patents is very recent,

and that the aforementioned protection was achieved, not so much by virtue of the patent

system to promote the right to health and innovation, but rather as a condition for

benefiting from the economic prerogatives deriving from accession to the WTO.

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The Right to Health

Health in the international context

The Charter of the United Nations signed in San Francisco on 26 June 1945, at the end

of the United Nations Conference on the International Organization, entered into force

on 24 October 1945, and established the need to promote the solution of international

economic, social, health and related problems, as well as international cooperation, of a

cultural and educational nature as a means of maintaining and preserving peace between

peoples (55/a). The Economic and Social Council was also established, whose function

is, among others, to prepare studies and reports on international matters of an economic,

social, cultural, educational, health and related nature, being able to make

recommendations on such matters to the General Assembly

, members of the United

Nations and interested special organizations.

In turn, the Universal Declaration of Human Rights (1948), in its article 25/1, establishes

that everyone has the right to a standard of living adequate for the health and well-being

of himself and of his family, especially food, clothing, housing, medical care and the

necessary social services

The World Health Organization emerged as a specialized body, under the terms of article

57 of the United Nations Charter. Health is seen as a state of complete physical, mental

and social well-being, not merely the absence of disease or infirmity. It is also stated

that enjoying the best possible state of health is one of the fundamental rights of every

human being, without distinction of race, religion, political creed or economic or social

condition

It is also underlined that the health of all peoples is essential for achieving peace and

security and depends on the closest cooperation of individuals and States. The results

achieved by each State in the promotion and protection of health are of value to all. The

uneven development in different countries in terms of promoting health and combating

diseases, especially contagious ones, constitutes a common danger

Also within the scope of the United Nations, the International Covenant on Economic,

Social and Cultural Rights is highlighted. Its article 12 clearly shows the commitment

between the signatories to widely protect the right to health, recognizing all people the

right to enjoy the highest level of physical and mental health and imposing concrete

measures for their protection (Helfer, 2015: 317-318; Sellin, 2015: 445-473).

In turn, the Treaty on the Functioning of the European Union, in its Article 9, sets out as

an objective the promotion of a high level of employment, the guarantee of adequate

social protection, the fight against social exclusion and a high level of education, training

and protection of human health. In the same regulation, article 168 provides that in the

definition and implementation of all Union policies and actions, a high level of health

protection will be ensured. Union action, which will complement national policies, will

Constituted by all members of the United Nations (9/1)

Adopted by the United Nations on 10 December 1948.

Preamble to the Constitution of the World Health Organization.

Accordingly, the primary objective of the World Health Organization is the acquisition, by all peoples, of the

highest possible level of health (Article 1).

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focus on improving public health and preventing human illness and disease and reducing

causes of danger to physical and mental health. This action will cover the fight against

major scourges, encouraging research into their causes, forms of transmission and

prevention, as well as health information and education and surveillance of serious

threats to health with a cross-border dimension, alerting in the event of such threats and

the fight against them.

The Charter of Fundamental Rights of the European Union, in article 35 on the protection

of health, establishes that everyone has the right to access prevention in health matters

and to benefit from medical care, in accordance with national laws and practices. In the

definition and implementation of all Union policies and actions, a high level of human

health protection is ensured.

In other words, there is no doubt that the protection of the right to health occupies a

pre-eminent position in the various international instruments, not only as an end, but

also as a means of ensuring peace between peoples and the dignity of the human person.

This right should supersede others of a more materialistic nature.

Health in the Portuguese-Brazilian context

In the Portuguese context, the right to health is enshrined in Article 64 of the CRP, which

establishes that everyone has the right to health protection and the duty to defend and

promote it

. Paragraph 2 of the same document prescribes that the protection of the

right to health will take place through a universal and general national health service,

which tends to be free of charge. It establishes the achievement of economic, social,

cultural and environmental conditions that guarantee the protection of childhood, youth

and old age. Subparagraphs c) and e) of paragraph 3 of article 64 CRP deserve special

interest in the matter that concerns us. They imposes on the State the priority task of

guiding action towards the socialization of the costs of medical and drug care and also

disciplining and controlling the production, distribution, marketing and use of chemical,

biological and pharmaceutical products and other means of treatment and diagnosis.

In line with the above in the international context, it is clear in the Portuguese national

domain that the right to health allows the realization of other constitutionally enshrined

fundamental rights, such as the right to life and the right to moral and physical integrity,

as well as the realization of the principle of human dignity (Monge, 2019: 78; Miranda,

2010: 1309).

In the Brazilian context, health is enshrined in article 196 of the CRFB, as a right of all

and a duty of the State, guaranteed through social and economic policies aimed at

reducing the risk of disease and other aggravations and at universal and equal access to

actions and services for their promotion, protection and recovery. Within the

competences attributed to the unified health system, it is worth mentioning the one that

As stated by the doctrine “The right to health protection comprises two aspects: one, of a negative nature,

which consists of the right to demand from the State (or third parties) that it refrain from any act that

harms health, the other, of a positive nature, which means the right to state measures and benefits aimed

at disease prevention and treatment. … in the second case, it is a social right itself, with the corresponding

constitutional configuration” (Canotilho, 2014: 825).

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refers to controlling and inspecting procedures, products and substances of interest to

health and participating in the production of medicines, equipment, immunobiological

products, blood products and others

. This right fits within the social rights provided for

in article 6 of the Brazilian Constitution, which guarantees individuals’ autonomy,

enabling them to exercise other rights freely through access to educational training,

work, housing, and heath care (Carvalho, 2019: 25-28).

Without having the opportunity to delve further into the legal treatment given to this

right and the consequent obligation imposed on the State, this paper shows that we are

dealing with a right that goes beyond its own borders as an end and is also essential for

the realization of many other rights. Accordingly, when compared with the property right,

it seems evident that the latter must yield to the former, and this superiority does not

imply the elimination or annulment of the property right.

Final considerations

As a result of the analysis carried out in this work, it would be logical to conclude on the

relevant role of compulsory licences as a means to allow greater and broader access to

health when used in a situation where pharmaceutical patents exist. However, if this has

already proven not to be very effective when targeting access to medicines by less

developed countries, in the current context, in which the problem of access to a medicine

or treatment protected by patent that can treat covid-19, extends to most advanced

countries, the role to be played by compulsory licences is manifestly null (Hoen, 2016:

185-193)

Indeed, the recent context of covid-19 has shown that the main tool to promote the rapid

and effective gaining of a pharmaceutical solution to fight the pandemic has been based

on voluntary collaboration between economic agents, in an increase in permissiveness

on the part of pharmaceutical patent holders so that the object of their protection can be

freely used in the production of more effective medicines or vaccines and solidarity

initiatives to finance the acquisition and donation of vaccines (Bartels, 2020: 11-12).

There are several strategies to democratize access to patent-protected medicines in a

“normal ” context, i.e., non-pandemic conditions. Indeed, within the scope of the

mechanisms to boost this access, and as mentioned above, TRIPS enables the possibility

of compulsory licences based on the lack of sufficient use by the holder, and also

compulsory licences based on a situation of national urgency or public interest and non-

commercial purposes. There is also provision for flexibilization of exports from producing

countries, albeit with compulsory licences, to less developed countries without production

capacity and the possibility of exporting these medicines between a country that receives

this aid and another country in the same economic area.

In most countries, there are expropriation regimes that can be brought against the patent

right holder when faced with situations of public utility and interest. Voluntary licences

See. Title I of Article 200 CRFB.

These authors advocate that a wider use of compulsory licences would be essential to guarantee better and

broader access to health, both in poor and rich countries.

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also play an important role, as does the currently very limited ability of non-WTO member

countries to exclude vaccines from patentability. We also have altruistic initiatives, such

as the COVAX programme, whose objective is to raise funds to acquire vaccines and

equipment and distribute them to countries with greater difficulties in dealing with the

pandemic situation

Despite all these mechanisms, it has been found that the solution to the pandemic

situation based on the goodwill of patent holders is not enough to build an effective, rapid

and global response, with very “embarrassing” situations occurring with regard to the

vaccination levels of the population

. As a result of this situation, several proposals were

presented to the WTO to suspend the WTO TRIPS agreement on vaccines, treatment and

equipment related to covid-19 and increase production and manufacturing capacity in

developing countries

These proposals were evaluated in the Proposal for a Resolution presented by the

European Parliament of 2 June 2021 on how to face the global challenge of covid-19

Roughly speaking, this document opposes a possible suspension of patents related to the

treatment of covid-19, stating that the patent system is essential to fostering innovation

and safety in the invention ecosystem and that this safety is essential to be able to invest

in finding solutions for new variants of covid-19

. Alternatively, the aforementioned

document recommends that the emphasis should be on encouraging the donation of

vaccines and on permitting the export of vaccines from producing countries to countries

in need of vaccines, among other measures.

This stance is to be regretted, since there are several reasons that would impose a

decision to the contrary

. All existing mechanisms contribute to overcome the pandemic

situation at a global level, but all of them have proved to be insufficient and far from real

needs. Extraordinary situations require extraordinary approaches that lead to

extraordinary solutions.

The protection of medicines through patents is relatively recent and the acceptance of

this protection by several States was based not so much on the conviction of its

advantages, but because it is a necessary requirement to benefit from other advantages

https://www.gavi.org/covax-facility

In fact, the vaccination rate is very high in rich countries, and non-existent or low in less developed

countries. Rich countries “monopolize” vaccines to satisfy their national needs first, and there is a race

between rich countries to that end. Many unnecessary doses were withheld by rich countries. In the free

market, solutions could be sold to the top payer with priority, as was the case of Israel, which paid almost

twice as much for the vaccine as the European Union. https://www.elindependiente.com/vida-

sana/salud/2021/01/21/el-precio-del-milagro-israeli-con-la-vacuna-pagar-mas-y-dar-datos-a-pfizer/. The

WHO has asked rich countries to delay the administration of a third dose of the vaccine and allow for an

increase in vaccination in countries where the first doses have not yet been administered

https://elpais.com/sociedad/2021-08-04/la-oms-pide-una-moratoria-mundial-para-la-tercera-dosis-de-

las-vacunas-contra-la-covid-19.html. Furthermore, pharmaceutical companies did not have any problems

in increasing vaccine prices in contracts signed with the European Union, which is certainly justified by

commercial opportunism. https://www.lavozdegalicia.es/noticia/sociedad/2021/08/01/pfizer-moderna-

suben-precio-vacunas-contra-covid/00031627826051265125579.htm

See https://www.wto.org/english/news_e/news21_e/trip_23feb21_e.htm

See https://www.europarl.europa.eu/doceo/document/B-9-2021-0311_PT.pdf

See Recital L.

See the Human Rights Watch article of 03.06.2021 entitled Seven Reasons the EU is Wrong to Oppose the

TRIPS Waiver. https://www.hrw.org/news/2021/06/03/seven-reasons-eu-wrong-oppose-trips-waiver

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arising from membership of the WTO. In addition, the ability of the patent system in the

pharmaceutical sector to stimulate innovation is far from being peaceful, with studies

showing precisely the opposite effect (Gold, 2010). Another factor to consider is the fact

that many medicines protected through patents are also the result of public investment,

in its various forms, which questions the democratization of investment and the

monopolization of eventual profits (Cross et al., 2021)

In our understanding, the provisional suspension of patents that protect vaccines is the

extraordinary measure that this extraordinary situation requires to build a solid and rapid

response to the global emergency. We disagree with the understanding advocated by the

Chairman of the Board of GAVI – Global Alliance for Vaccines and Immunization, José

Manuel Durão Barroso, in maintaining that this measure would have a negative impact

on research and innovation. Another argument given is the absence of knowledge or

secret know-how to put into practice the use of suspended patents, which is also difficult

to understand (Barroso, 2021: 66). Firstly, as we have seen, there are situations when

a large part of the funding needed to obtain vaccines is public, so an eventual suspension

of patents obtained with that funding would allow for adequate economic compensation

that would reward the public effort made. Secondly, an essential pillar of the patent

system is the publicity of the invention to be protected in such a way that the owner of

the patent right will have to reveal all the necessary procedures for any expert in the

field to reproduce the protected invention. In this context, it is not clear how it can be

argued that there will be an “important know-how” that would prevent verifying the

quality of vaccines produced with the knowledge of suspended patents.

Indeed, if the vaccine is protected by patent, any expert in the field will be able to

reproduce the vaccine following the instructions made public with the patent application.

If, on the contrary, the reproduction of the procedure protected by the patent does not

result in exactly the same vaccine whose protection was requested, due to the lack of

important know-how, then the vaccine could not be protected by patent, and would be

freely used.

References

Bahamonde, Ruben (2016). El derecho de la competencia y los acuerdos de transferencia

de tecnología. Aranzadi.

Bartels, Hans Georg (2020). Global Challenges Division, IP and COVID-19, WHO, WIPO,

WTO Study. Promoting Access to Medical Technologies and Innovation, Geneva.

https://www.who.int/publications/i/item/9789240008267

Carvalho Filho, José dos Santos, Severo and Sousa Dabés Leão, Simone Letícia (2019).

A Concretização do direito à saúde pela jurisprudência do Supremo Tribunal Federal,

Revista de Direito Sociais e Políticas Públicas, V. 5, No. 2: 25-28.

See also the Human Rights Watch article entitled “Seven Reasons the EU is Wrong to Oppose the TRIPS

Waiver”. https://www.hrw.org/news/2021/06/03/seven-reasons-eu-wrong-oppose-trips-waiver

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Couto Gonçalves, Luís M. (2005). Manual de Direito Industrial, Patentes. Marcas.

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190

BALANCING THE PRIVACY V. SURVEILLANCE ARGUMENT:

A PERSPECTIVE FROM THE UNITED KINGDOM

VAIBHAV CHADHA

vchadha@jgu.edu.in

Assistant Professor of Law at Jindal Global Law School, O.P. Jindal Global University (India).

He holds a master’s degree in Law from Queen Mary University of London and bachelor’s degree

in commerce as well as law from University of Delhi. He has written international articles on

anticipatory bail law in India, copyright law and freedom of speech and expression. Before

moving to academia, Vaibhav worked at the Offices of Advocate General of State of Nagaland,

India, and Additional Solicitor General of India. His areas of interest include free speech, media

law, and criminal law.

Abstract

In the aftermath of revelations made by ex-NSA employee Edward Snowden about violation

of privacy of individuals by states in the name of surveillance, right to privacy became one of

the highly debated rights. There is no doubt that the state must secure privacy of its citizens,

but it also has a responsibility towards safety of the citizens. There exist different views related

to privacy and surveillance. One view is that the state has no right to look into the private

affairs of an individual while the other view is that there is no harm in putting someone

suspicious under the surveillance as it is the duty of the State to prevent any untoward act in

the society. Considering the contrasting views about privacy and surveillance, this article

explores the position existing in the United Kingdom and aims to answer several questions

pertaining to the Privacy v. Surveillance debate.

Keywords

Privacy; Surveillance; Investigatory Powers Act; General Data Protection Regulation and Data

Protection

How to cite this article

Chadha, Vaibhav (2022). Balancing the Privacy v. Surveillance argument: a perspective from

the United Kingdom. In Janus.net, e-journal of international relations. Vol13, Nº. 1, May-

October 2022. Consulted [online] on the date of the last visit, https://doi.org/10.26619/1647-

7251.13.1.12

Article received on August 15, 2021 and accepted for publication on January 27, 2022

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BALANCING THE PRIVACY V. SURVEILLANCE ARGUMENT:

A PERSPECTIVE FROM THE UNITED KINGDOM

VAIBHAV CHADHA

1. Introduction

Right to privacy remains one of the paramount possessions of human beings. Since its

coming into existence, the right to privacy has momentously progressed and has

developed into an established right across majority of modern democracies.

Right to

privacy is granted under Article 12 of Universal Declaration of Human Rights 1948, which

states that there shall be neither “arbitrary interference” with anyone’s “privacy, family,

home or correspondence” nor an attack on an individual’s “honour and reputation”.

Article 17 of the International Convention of Civil and Political Rights 1966 provides that

no one’s “privacy, family, home or correspondence” shall be subjected to “arbitrary or

unlawful” intrusion. The legal basis of privacy as a right in Europe evolves from Article

8(1) of the European Convention of Human Rights (ECHR), which provides for right to

respect for private and family life and Article 8(2), which provides that there shall be no

interference in this right by public authority except in accordance with law.

Right to privacy in Europe has been further strengthened with the enforcement of General

Data Protection Regulation (GDPR) in May 2018. GDPR is one of the most stringent

privacy and security laws in the world. Despite being enacted by the European Union

(EU), it casts a duty on all organizations situated anywhere in the world as far as they

“target or collect” data of people in the EU region. GDPR also imposes heavy fines against

those violating the privacy and security standards laid down by it.

There is an intrinsic relationship between privacy and national security because there are

restrictions as to how much people are willing to trade privacy in pursuit of national

security.

Article 23 of GDPR provides that subject to the union or member state law,

rights given in Articles 12 to 22 (rights of data subject) and Article 34 (communication

of a personal data breach to the data subject) can be restricted by way of legislative

Eric Caprioli, Ygal Saadoun and Isabelle Cantero, ‘The Right to Digital Privacy: A European Survey’ (2006)

3 Rutgers Journal of Law & Urban Policy 211.

‘What is GDPR, the EU’s new data protection law?’ GDPR.EU available at https://gdpr.eu/what-is-gdpr/

accessed on 12 May 2020

Fred H Cate, ‘Government Data Mining: The Need for a Legal Framework’ (2008) 43 Harvard Civil Rights-

Civil Liberties Law Review 435, 484.

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measure on the grounds of national security, defence, public security and prevention,

investigation, detection or prosecution of crimes.

In the United Kingdom (UK), Data Protection Act 2018 (DPA, 2018) was enacted to

implement GDPR. Before enactment of the DPA 2018, Data Protection Act 1998 regulated

the domestic processing of personal data by intelligence agencies. A new structure has

been created by DPA 2018, which provides a distinct mechanism to supervise the

processing of personal data by intelligence agencies. This mechanism is based on the

international standards that will be laid out in a revised Council of Europe “Convention

for the Protection of Individuals with regard to Automatic Processing of Personal Data”

(the “modernised Convention 108”; amended Protocol was adopted by the Council of

Europe on 18 May 2018). It is pertinent to note that national security does not come in

the purview of European Union law. As a result, neither GDPR nor Law Enforcement

Directive (LED) covers in its ambit the processing of personal data for the purpose of

national security. Consequently, the terms of GDPR and LED were not intended to be

applicable to processing of personal data by the intelligence agencies.

LED concerns with

the processing of personal data with the motive of “prevention, investigation, detection

or prosecution of criminal offences or the execution of criminal penalties” by the

competent authorities.

A specific mechanism for the intelligence agencies is provided by Part 4 of the DPA 2018

(intelligence services processing). It warrants that the processing of personal data by

intelligence agencies is subjected to suitable and corresponding standards that

acknowledge the serious task of the intelligence agencies in dealing with present-day and

prospective threats to national security.

Also, section 110 of the DPA 2018 provides

exemption to intelligence agencies from certain provisions of the Act where it is essential

to safeguard national security.

2. Background

Privacy concerns all individuals in their most personal and private affairs. It is a

fundamental human right that remains under continuous threat due to the modern

technological advancements.

Privacy should not be considered as an individual right in opposition to the larger societal

good. Issues of privacy require equilibrium at both edges of the scale as privacy entails

safeguarding against a range of various dangers or troubles, the worth of privacy varies

Home Office, Government of United Kingdom, Data Protection Act 2018, Factsheet – Intelligence Services

Processing, p. 1, available at <

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/7112

33/2018-05-23_Factsheet_4_-_intelligence_services_processing.pdf > accessed on 19 June 2020.

Directive (EU) 2016/680 of the European Parliament and of the Council (27 April 2016), p. 1.

Home Office, Government of United Kingdom, Data Protection Act 2018, Factsheet – Intelligence Services

Processing, p. 2, available at <

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/7112

33/2018-05-23_Factsheet_4_-_intelligence_services_processing.pdf > accessed on 19 June 2020.

Ilina Georgieva, ‘The Right to Privacy under Fire Foreign Surveillance under the NSA and the GCHQ and Its

Compatibility with Article 17 ICCPR and Article 8 ECHR’ (2015) 31 Utrecht Journal of International and

European Law 104.

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based on the specific trouble or danger that is being safeguarded. All privacy issues are

not alike, and some issues are more dangerous than others; thus, an abstract value

cannot be assigned to privacy.

The conflict between surveillance and privacy is a

consequence of our vast troubles adjusting with progress in technology.

The importance of the right to privacy was highlighted when ex – National Security

Agency (NSA) employee Edward Snowden made revelations that under a secret order of

a court, records of millions of US citizens were being collected by NSA indiscriminately

irrespective of the fact whether those individuals were involved in any illegal act or not.

This led to a huge outcry amongst the public and there were strong objections raised to

such surveillance by the state. Public felt it was an intrusion into their personal lives by

the state and became more aware and cautious in issues pertaining to their privacy.

In our society, surveillance technology is prevalent and that often results in a strong

debate between the advocates and opponents of surveillance technology. Specifically,

government surveillance has been brought more and more under scrutiny of the public

with supporters asserting that it enhances security while opponents denouncing it for

infringing privacy.

From the viewpoint of a society, it is important to preserve requisite

balance between security concerns and privacy and intrinsic civil rights of citizens.

3. Surveillance by State Agencies

Surveillance is not only for the governments. A substantial wealth is generated by private

companies by gathering, utilizing, and selling personal data of individuals.

Surveillance,

in simple terms means “watching over”. It relates to “monitoring, tracking, observing,

examining, regulating, controlling, gathering data and invading privacy.” The term

surveillance originates from the French word “veiller” and the Latin word “vigilare.”

Professor David Lyon defines surveillance as “the focused, systematic and routine

attention to personal details for purposes of influence, management, protection or

direction.” As per Professor Lyon, surveillance is “focused” as it pays attention on

individuals. The term “systematic” denotes that scrutiny of personal details is intentional

and relies on some “protocols and techniques” and by term “routine,” Professor Lyon

means that it happens in all modern societies as a ‘normal’ part of day to day life

Daniel J. Solove, ‘‘I’ve Got Nothing to Hide” and Other Misunderstandings of Privacy’ (2007) 44 San Diego

Law Review 745, 763.

H. Akin Ünver, ‘Politics of Digital Surveillance, National Security and Privacy’ (Centre for Economics and

Foreign Policy Studies, 2018) 7.

Glenn Greenwald, ‘NSA collecting phone records of millions of Verizon customers daily’ The Guardian (United

Kingdom 6 June 2013).

Michelle Cayford & Wolter Pieters, ‘The effectiveness of surveillance technology: What intelligence officials

are saying’ (2018) The Information Society 34(2), 88 DOI: 10.1080/01972243.2017.1414721.

Stefan Schuster, Melle Berg , Xabier Larrucea, Ton Slewe and Peter Ide-Kostic, ‘Mass Surveillance and

technological policy options: Improving security of private communications’ (2017) 50 Computer Standards

& Interfaces 76, 77.

Neil M Richards, ‘The Dangers of Surveillance’ (2013) 126 Harvard Law Review 1934, 1938.

Kelly Gates, ‘Surveillance’ in Laurie Ouellette and Jonathan Gray (eds), Keywords for Media Studies (NYU

Press 2017) 186.

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dependent on administrative set-up and certain information technology.

Surveillance,

as per him, is also invariably attached to a particular “purpose.”

Surveillance is not only for the communist and dictatorial states. In the aftermath of 9/11

attacks, 2005 London bombings and various other heinous crimes, huge investments

have been made even by democratic states in surveillance technologies.

Presently,

surveillance includes technologies, forms, operations, and established code of procedure

for replicating and scrutinizing pictures, sounds, scripts, and transaction- generated and

different kinds of data.

Electronic surveillance is an advantageous instrument in the

hands of law enforcement agencies. It can enhance security of citizens, assist in criminal

investigations, and supply strong evidence in a prosecution.

3.1. Investigatory Powers Act 2016

On 29 November 2016, the Investigatory Powers Act 2016 (IPA) came into force. To

regulate the usage and oversight of investigatory powers by law enforcement and the

security and intelligence agencies, the act lays out a new framework.

IPA repeals part

one of Regulation of Investigatory Powers Act 2000 (RIPA), which had 25 sections and it

replaces the same with 272 sections on interception regulation. Foremost objective of

the IPA is to revamp the system under which law enforcement and intelligence agencies

of the UK can be permitted to carry out “interception, equipment interference or bulk

communications data acquisition.”

As Secretary of State is responsible for “security and terrorism”

, he/she issues the “bulk

equipment interference warrant” based on an application made by the head of the

intelligence service.

However, the Secretary of State personally takes the decision of

issuing a bulk equipment interference warrant.

These specific and detailed provisions try to fill in the gap and seek to prevent misuse by

providing a need for warrant from the Secretary of State before authorising any bulk

equipment interference. This indicates that issuing of such warrants is well regulated and

cannot be used indiscriminately by officials below Secretary of State without his

authorization for purpose other than the one specified. Section 176 to section 183 of the

Investigatory Powers Act 2016 deals with “bulk equipment interference warrants”. “Bulk

David Lyon, Surveillance Studies: An Overview (1st edn, Polity 2007) 14.

David Lyon, Surveillance Studies: An Overview (1st edn, Polity 2007) 15.

Neil M Richards, ‘The Dangers of Surveillance’ (2013) 126 Harvard Law Review 1934, 1938.

Kelly Gates, ‘Surveillance’ in Laurie Ouellette and Jonathan Gray (eds), Keywords for Media Studies (NYU

Press, 2017) 187.

Edward Balkovich, Don Prosnitz, Anne Boustead and Steven C Isley, ‘The Electronic Surveillance Challenge’

In Electronic Surveillance of Mobile Devices: Understanding the Mobile Ecosystem and Applicable

Surveillance Law (2015) RAND Corporation 1.

Investigatory Powers Act, available at https://www.gchq.gov.uk/information/investigatory-powers-act

accessed on 15 June 2020.

Thomson Reuters Practical Law, Investigatory Powers Act 2016: Overview by Practical Law Business Crime

and Investigations, p. 1.

Secretary of State for the Home Department, Responsibilities

https://www.gov.uk/government/ministers/secretary-of-state-for-the-home-department accessed 3 March

2020.

Investigatory Powers Act 2016, s 178.

Investigatory Powers Act 2016, s 182.

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equipment interference warrant” authorises the person to whom it is addressed to obtain

interference with any kind of equipment for the aim of obtaining “communications,

equipment data and any other information.”

27 June 2018 onwards, under the IPA, the interception of communications operations

became legitimized. Only Secretary of State can issue warrants authorising interception,

and they are required to be ratified by an independent Judicial Commissioner from the

Investigatory Powers Commissioner’s Office. Prior to issuing of an interception warrant,

the Secretary of State must “believe” that a warrant is “necessary” on some grounds and

the interception corresponds to the purpose it aims to accomplish. Interception is

considered “necessary” on the grounds of “national security”, “economic well-being of

the UK” or “prevention or detection of serious crime”. To restrict the usage of intercepted

information and associated communications data, IPA requires arrangement of

safeguards.

The IPA 2016 caused a noteworthy change in the way some investigatory powers are

approved and supervised. The introduction of what it is informally called “double lock”

method is the most remarkable change brought in by the IPA 2016. “Double lock”

mechanism implies that following authorization by the Secretary of State, an IPA warrant

cannot be issued unless a Judicial Commissioner authorises it.

The inception of ‘double

lock’ mechanism has initiated a pivotal new feature to judicial oversight of the UK’s

intelligence and security agencies, giving the task of independently analysing approvals

requested under the IPA 2016 to Judicial Commissioners.

Hailing the passage of IPA 2016, Home Secretary Amber Rudd stated, “This Government

is clear that, at a time of heightened security threat, it is essential our law enforcement,

security and intelligence services have the powers they need to keep people safe.” She

further observed, “The internet presents new opportunities for terrorists and we must

ensure we have the capabilities to confront this challenge. But it is also right that these

powers are subject to strict safeguards and rigorous oversight.” Pointing towards

transparency and privacy protection set out in the Act, she asserted that “The

Investigatory Powers Act is world – leading legislation that provides unprecedented

transparency and substantial privacy protection.”

3.2. Operations by the State Agencies

Interception is a method where a person other than the sender or recipient of that

communication oversees the communication during the course of its transmission with

Investigatory Powers Act 2016, s 176.

Investigatory Powers Act, available at https://www.gchq.gov.uk/information/investigatory-powers-act

accessed on 15 June 2020.

Government of UK, ‘Annual Report of the Investigatory Powers Commissioner’ (2018) p. 10, available at

https://ipco.org.uk/docs/IPCO%20Annual%20Report%202018%20final.pdf accessed on 16 June 2020.

Government of UK, ‘Annual Report of the Investigatory Powers Commissioner’ (2018) p. 9 [2.3], available

at https://ipco.org.uk/docs/IPCO%20Annual%20Report%202018%20final.pdf accessed on 26 June 2020.

Home Office (Government of UK), ‘Investigatory Powers Bill receives Royal Assent’ (28 November 2018)

available at https://www.gov.uk/government/news/investigatory-powers-bill-receives-royal-assent

accessed on 15 June 2020.

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the purpose of making its contents accessible.

Employment of data mining technologies

in national security is an effort to automate some systematic work to permit finer and

well timed examination of prevailing datasets with the object of being able to avert

terrorist activities by recognizing and categorizing several “threads and pieces of

information,” which may be in existence already but are overlooked due to use of

methods of investigation that are traditional.

A radical transformation in surveillance by state is ignited by the digital age, both in

terms of how surveillance is carried out and the kinds of insights it is intended to promote.

The transformation in surveillance by state is represented by the usage of “bulk

communications data techniques” that comprise of extensive gathering, holding and

successive analysis of communications data. Now, such techniques are an integral aspect

of surveillance by state.

Contrary to the targeted data collection, bulk communications

data surveillance denotes extensive “collection” and “retention” of communications data.

It is used by both intelligence and law enforcement agencies today.

Data mining is the method of exploring new information in the already existing data.

Data mining usually determines “patterns or relationships” in the data items or records,

which were earlier not recognized but are disclosed in the data only.

Data mining

provides favourable opportunities for overcoming the gap in the informational

requirements of the government and the huge datasets of information available to it. The

available data can be converted into knowledge with data mining.

The procedure of

data mining essentially demands automatic review and assessment of profiles comprising

personal information of various persons.

A serious threat from surveillance is programmes like ‘Data Mining.’ ‘Data mining’

presents instruments for automatically analysing the data.

Huge quantities of data is

retained by the government agencies, which then examines them with the intention of

gaining knowledge for creation and storing of important information.

Interesting thing

about data mining is that it aims to predict our future actions and those individuals who

match some specific profiles are considered involved in “similar pattern of behaviour”. In

Intelligence and Security Committee of Parliament: Privacy and Security: A modern and transparent legal

framework (2015) 17 https://info.publicintelligence.net/UK-ISC-MassSurveillance.pdf accessed 12 June

2020.

KA Taipale, ‘Data Mining and Domestic Security: Connecting the Dots to Make Sense of Data’, (2003-2004)

5 Columbia Science and Technology Law Review 1, 21.

Murray D and Fussey P, “Bulk Surveillance in the Digital Age: Rethinking the Human Rights Law Approach

to Bulk Monitoring of Communications Data” (2019) 52 Israel Law Review 31.

Daragh Murray and Pete Fussey, “Bulk Surveillance in the Digital Age: Rethinking the Human Rights Law

Approach to Bulk Monitoring of Communications Data” (2019) 52 Israel Law Review 31, 36.

KA Taipale, ‘Data Mining and Domestic Security: Connecting the Dots to Make Sense of Data’, (2003-2004)

5 Columbia Science and Technology Law Review 1, 22.

KA Taipale, ‘Data Mining and Domestic Security: Connecting the Dots to Make Sense of Data’, (2003-2004)

5 Columbia Science and Technology Law Review 1, 22-23.

Tal Z Zarsky, ‘Governmental Data Mining and its Alternatives’ (2011) 116 Pennsylvania State Law Review

285, 294.

Tal Z Zarsky, ‘Governmental Data Mining and its Alternatives’ (2011) 116 Pennsylvania State Law Review

285, 295.

Stijn Vanderlooy, Joop Verbeek and Jaap van den Herik, ‘Towards Privacy-Preserving Data Mining in Law

Enforcement’ (2007) 2(4) JICLT 202.

Stijn Vanderlooy, Joop Verbeek and Jaap van den Herik, ‘Towards Privacy-Preserving Data Mining in Law

Enforcement’ (2007) 2(4) JICLT 202.

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those circumstances, the actions that have yet not been committed would be difficult to

refute and it shall be more onerous for us to dismiss future activity predictions done by

data mining.

Many privacy advocates warn that gathering and retaining of unlimited ‘metadata’ of

communication activities of people by the government is the most intrusive form of

surveillance.

Metadata, in simple terms, is data about data. Ordinarily, information

comprises of semantic tags applicable to data. Metadata contains semantically tagged

data, which are utilized to explain data.

Metadata is also known as ‘communications

data’ and the UK High Court in Davis and Others v Secretary of State for the Home

Department explained ‘communications data’ in the following words:

The phrase "communications data" does not include the content of a

communication. Such data can be used to demonstrate who was

communicating; when; from where; and with whom. They can include the

time and duration of a communication, the number or email address of the

originator and recipient, and sometimes the location of the device from which

the communication was made. They do not include the content of any

communication: for example the text of an email or a conversation on a

telephone.

The court further stated that in the course of investigations concerning national security

and organised and serious crime, the intelligence and law enforcement organizations use

communications data. The data helps investigation agencies in identifying associates of

a criminal nexus, placing them at particular locations at predetermined times and in some

cases to comprehend criminal activity they are involved in.

When “combined” and

“aggregated” to yield detailed record of communication and internet – based activity of

an individual, communication data is considered specifically advantageous for the

intelligence and security agencies.

4. Evaluating the Privacy vs Security argument

A chilling effect is said to be created by surveillance when individuals desist from taking

part in activities due to apprehension that some consequences will follow if they observe

such activity.

Surveillance prevents an individual from enjoying his/her freedom to

Daniel J. Solove, ‘‘I’ve Got Nothing to Hide” and Other Misunderstandings of Privacy’ (2007) 44 San Diego

Law Review 745, 764.

Glenn Greenwald, ‘NSA collecting phone records of millions of Verizon customers daily’ (The Guardian, 6

June 2013) https://www.theguardian.com/world/2013/jun/06/nsa-phone-records-verizon-court-order

accessed 4 March 2018.

Tony Hey and Anne Trefethen, ‘The Data Deluge: An e-Science Perspective’, available at

https://eprints.soton.ac.uk/257648/1/The_Data_Deluge.pdf accessed on 25 April 2020.

Davis and Others v Secretary of State for the Home Department [2015] EWHC 2092 [13].

Davis and Others v Secretary of State for the Home Department [2015] EWHC 2092 [14].

Daragh Murray and Pete Fussey, “Bulk Surveillance in the Digital Age: Rethinking the Human Rights Law

Approach to Bulk Monitoring of Communications Data” (2019) 52 Israel Law Review 31, 34.

Daragh Murray and Pete Fussey, “Bulk Surveillance in the Digital Age: Rethinking the Human Rights Law

Approach to Bulk Monitoring of Communications Data” (2019) 52 Israel Law Review 31, 43.

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liberty and speech. One cannot move or speak freely when he/she knows that state is

following him/her at each step and is seeing all his/her acts. This leads to creation of a

society which is quite similar to the one described by George Orwell in the famous novel

‘Nineteen Eighty-Four’. The society described by Orwell had a situation where everyone

lived in the constant fear of being watched by the State at every moment and had to act

or think in a way expected by the state and not in the manner; they themselves would

like to think.

This Orwellian society restricts the movements, thoughts, conduct of

citizens in their daily lives and makes them robots who are supposed to follow the

instruction of the state, which can be very harmful for the existence of a free society

itself.

In 2013, Edward Snowden exposed Government Communication Headquarters’ (GCHQ)

operation codenamed ‘Tempora’ that he termed as "the largest programme of suspicion

less surveillance in human history".

Under the operation ‘Tempora’, large volumes of

data taken from fibre optic cables could be stored for 30 days for analysing the data by

the GCHQ. The data included phone records, email message contents, Facebook entries,

internet history and many more details not only of the suspected targets but also of

innocent people.

Finally, on 6 February 2015, the Investigatory Powers Tribunal held

that the regulations that gave access to GCHQ to email and phone records intercepted

by NSA breached Article 8 and Article 10 of the ECHR.

The judiciary came forward and protected the rights of the citizens who were under threat

from the state in matters relating to their privacy. The state may try to justify such

massive and indiscriminate surveillance in the name of security and safety of citizens but

it must not be forgotten that there must be drawn a line to prevent the state from

interfering in personal activities of innocent citizens in the name of safety and security.

Programmes like ‘Tempora’ give powers to the state agencies to collect mass data and

provides them access to personal details like the email message.

We must never forget that government agencies do not comprise of one individual but

many. There may be many officers working with integrity and would be following

guidelines or safeguards provided under the statute while using the personal data for the

purpose of surveillance. However, there remains a probability that some officers who

may get access to such a high volume of data meant for security purpose may do away

with safeguards provided during the period of “emergency or crisis” and misuse such

data.

Misuse of data secured is not only an intrusion but an act which is illegal. The

Neil M. Richards, ‘The Dangers of Surveillance’ (2013) 126 Harvard Law Review 1934, 1948.

Ewen MacAskill, Julian Borger, Nick Hopkins, Nick Davies and James Ball, ‘GCHQ taps fibre-optic cables for

secret access to world's communications’ (The Guardian, 21 June 2013)

https://www.theguardian.com/uk/2013/jun/21/gchq-cables-secret-world-communications-nsa accessed

13 May 2020.

Ewen MacAskill, Julian Borger, Nick Hopkins, Nick Davies and James Ball, ‘GCHQ taps fibre-optic cables for

secret access to world's communications’ (The Guardian, 21 June 2013)

https://www.theguardian.com/uk/2013/jun/21/gchq-cables-secret-world-communications-nsa accessed

13 May 2020.

Owen Bowcott, ‘UK-US surveillance regime was unlawful ‘for seven years’ The Guardian (6 Feb 2015)

https://www.theguardian.com/uk-news/2015/feb/06/gchq-mass-internet-surveillance-unlawful-court-nsa

accessed 13 June 2020.

Adam D. Moore, ‘Privacy, Security and Government Surveillance: Wikileaks and the new Accountability’

(2011) 25(2) Public Affairs Quarterly 141, 145.

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most unfortunate part of data mining is that the individual or the masses who are under

surveillance are not even aware that they are under surveillance and that their acts

including google search, bank details and other details are being observed by the State.

If such acts are to happen in vibrant democracies like the UK, then it would be difficult

to imagine the worst forms of surveillance that might be carried out by the dictatorial

regimes where such bulk interception may be misused to muzzle the voices opposing the

government.

Article 8 of the ECHR is fundamental because it outlines one’s right to have his/her

privacy respected by any organization while at the same time it furnishes conditions

under which the State is permitted and sometimes authorized to “exert certain

prerogatives.” “National security, public safety, [and] the prevention of disorder or crime”

are among the grounds on which a state can intervene in the right to privacy. Thus, it

can be suggested that for those who drafted the ECHR, security superseded privacy.

The intelligence and security agencies are committed to a mission, ensuring safety and

security of the citizens is the main reason for their role and assertion on the country’s

significant and governmental resources.

This suggests that the intelligence agencies

need access to private information of an individual for securing the society and one must

not worry if he is not committing any illegal act.

There is another argument that favours surveillance and holds view that there can be no

intrusion of privacy by mere automatic gathering and organising of data. As the data

gathered is in bulk, such data initially passes through the computers that search for

phone number, names and other details of persons who are of intelligence worth to the

government agencies. The automatic ‘sifting’ of data by the computer prevents perusal

of private data by an intelligence officer and thus it does not intrude into privacy.

This

argument speaks in favour of surveillance and assures that certain protocols are followed

for surveillance so as not to intrude the privacy.

Many concerns have also been raised regarding the bulk interception capability of GCHQ

and it has been alleged that it observes all communications on the internet. But as per

the Intelligence and Security Committee of Parliament, that is not correct because

GCHQ’s bulk interception capability is used for only scrutinizing those individuals who

pose threat or used for the object of creating new intelligence leads like tracking any

cyber-attack or terror plot.

Another issue that report dealt with was a charge made

against GCHQ that it does interception “indiscriminately”. Refuting such allegation, the

committee responded: GCHQ first choose the bearers to access (a small proportion of

those they can theoretically access) and then use specific selectors, related to individual

Eric Caprioli, Ygal Saadoun and Isabelle Cantero, ‘The Right to Digital Privacy: A European Survey’ (2006)

3 Rutgers Journal of Law & Urban Policy 211, 213.

Charles D. Raab, ‘Security, Privacy and Oversight’ in Andrew W. Neal (ed) Security in a Small Nation:

Scotland, Democracy, Politics (Open Book Publishers, 2017) 81.

Richard A. Posner, ‘Our Domestic Intelligence Crisis’ Washington Post (21 December 2005) available at

https://www.washingtonpost.com/archive/opinions/2005/12/21/our-domestic-intelligence-

crisis/a2b4234d-ba78-4ba1-a350-90e7fbb4e5bb/accessed on 14 May 2020.

Intelligence and Security Committee of Parliament: Privacy and Security: A modern and transparent legal

framework (2015) 28, para F https://info.publicintelligence.net/UK-ISC-MassSurveillance.pdf accessed 15

May 2020.

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200

targets, in order to collect communications from those bearers.

It clarified that it

targeted the individuals and did not do surveillance at a massive scale that may have

included several innocent persons and thus, maintained limits by not intruding their

privacy.

The advantages of “bulk interception” can be seen from the report submitted by

Intelligence and Security Committee of Parliament in 2015, which stated “We were

surprised to discover that the primary value to GCHQ of bulk interception was not in

reading the actual content of communication, but in the information associated with those

communications.”

Communications data surveillance virtually enables in keeping an

eye on each and every action of all individuals, to uncover and assess their relationships

with other individuals, and to attain extensive understanding into the lives of those

individuals.

These observations by the committee of Parliament try to instil a sense of security in

minds of the citizens that they are not subject to absolute and unchecked bulk

interception by intelligence agencies and these interceptions are motivated towards those

suspects who pose threat to the UK.

It is important to mention that issue necessarily doesn’t have to be of ‘privacy’ or

‘security’, as successful planning, consistent implementation, and meticulous supervision

of extensive safeguard measures by law makers can harness the advantage of technology

to achieve both privacy and security.

5. Conclusion

It would not be correct to say that both privacy and surveillance are against each other,

or one trumps the other, no state can deny the need of either absolutely. Unless the

state has sufficient evidence of one being involved in a crime, the law enforcement

agencies should refrain from intercepting communications of those individuals. ‘Those

who have nothing to hide have nothing to fear’ argument does not give an absolute right

to intelligence agencies to intercept all communications of citizens indiscriminately but

only with checks and balances.

At the same time, we must not forget that terror plotting these days is not limited to

physical locations but has expanded to the digital platforms as well, necessitating

surveillance. Thus, the government, before framing more efficient and non-intrusive

surveillance laws, must do due deliberations and consultations not only with law

enforcement agencies but also with organisations outside the government.

Intelligence and Security Committee of Parliament: Privacy and Security: A modern and transparent legal

framework (2015) 28, para G https://info.publicintelligence.net/UK-ISC-MassSurveillance.pdf accessed 15

May 2020.

Intelligence and Security Committee of Parliament, ‘Privacy and Security: A modern and transparent legal

framework’ (2015) p. 32 [80].

Murray D and Fussey P, “Bulk Surveillance in the Digital Age: Rethinking the Human Rights Law Approach

to Bulk Monitoring of Communications Data” (2019) 52 Israel Law Review 31, 52.

John P. Heekin, ‘Leashing the Internet Watchdog: Legislative Restraints on Electronic Surveillance in the

U.S. and U.K.’ (2010) 28(1) American Intelligence Journal 40.

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OBSERVARE

Universidade Autónoma de Lisboa

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204

THE RELATIONSHIP BETWEEN CASH DIVIDEND AND EARNINGS GROWTH OF

LISTED COMPANIES IN TEHRAN STOCK EXCHANGE

MASSOUD KHEIRANDISH

ecomkh@gmail.com

Department of Economic, Faculty of Humanities, Gonbad Kavous University, Gonbad (Iran).

MOHSEN MOHAMMADI KHYAREH

m.mohamadi@gonbad.ac.ir

Department of Economic, Faculty of Humanities, Gonbad Kavous University, Gonbad (Iran).

Abstract

Dividend policy is one of the most important financial decisions managers encounter. This

study contributes to empirical studies examining the relationship between cash dividends and

earnings growth of companies listed on the Tehran Stock Exchange during the period 2007-

2020. As a result, 131 companies have been examined with the multiple regression estimation

model. The findings show a significant relationship between cash dividends per share and

future earnings growth. Furthermore, there is a significant relationship interaction term

between the dividend payout ratio and the investment growth assumption. This relationship

is also observed for return on equity and dividend payout ratio.

Keywords

Efficiency; future earnings growth; dividend policy

How to cite this article

Kheirandish, Massoud; Khyareh, Mohsen Mohammadi (2022). The relationship between cash

dividend and earnings growth of listed companies in Tehran stock exchange. In Janus.net, e-

journal of international relations. Vol13, Nº. 1, May-October 2022. Consulted [online] on the

date of the last visit, https://doi.org/10.26619/1647-7251.13.1.13

Article received on November 6, 2021 and accepted for publication on March 16, 2022

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Massoud Kheirandish; Mohsen Mohammadi Khyareh

205

THE RELATIONSHIP BETWEEN CASH DIVIDEND AND EARNINGS

GROWTH OF LISTED COMPANIES IN TEHRAN STOCK EXCHANGE

MASSOUD KHEIRANDISH

MOHSEN MOHAMMADI KHYAREH

1. Introduction

Forecasting is a key factor in making economic decisions. The economic decisions of

investors, creditors, managers, and other parties depend on expectations and forecasts.

Since investors and financial analysts use profit as one of the main criteria for evaluating

a company, and they tend to evaluate future profitability to make decisions to maintain

or sell shares, they judge a company's performance based on profit because the

resources allocation to business units and divisions is made through profitability forecasts

(Shafai et al., 2019). It is also important to potential investors. They forecast future

earnings and cash flows based on the investment and allocation of capital resources

(Asadi and Oladi, 2015). Dividend policy is one of the most important issues in financial

management, because cash dividends represent the main cash payment of an enterprise

and are one of the most important choices and decisions faced by managers. The

manager should decide the amount that is considered to be distributed profit and the

amount that will be reinvested in the company in the form of retained earnings. Dividends

are paid directly to shareholders, and they affect a company's ability to accumulate

profits to take advantage of growth opportunities. According to his own belief, every

investor buys shares of companies with desirable dividend policies. Dividends proposed

by the board of directors often contain important information about managers'

expectations about the company's future profitability (Mehrani et al., 2010). In this

regard, this paper investigates the impact of changes in dividend payments on revenue-

growing companies listed on the Tehran Stock Exchange. When a company has

reasonable investments to be developed in the following few years or when a company

forecasts its financial needs for the following year, it provides distributions or dividends

to a general meeting of shareholders. If the general assembly agrees with the board, the

benefits are distributed among the shareholders, transferred to retained earnings or

savings accounts, and given to shareholders in the form of bonus shares after the project

has been run. Otherwise, profits are distributed among shareholders and then capital is

increased after the procedure if the management determines that the company needs

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206

cash financing (Jahankhani & Ghorbani, 2005). Several factors may affect a company's

profit distribution policy and may limit dividends. These factors are determined for the

company within the mandatory framework of laws and regulations, or the company

undertakes to provide the performance of these factors. Generally, these factors can be

divided into three categories: legal, contractual, and internal. The tax laws of some

countries also prohibit excessive non-profit dividends. While the definition of uncontrolled

dividends is somewhat ambiguous, it is generally defined as the maintenance of residual

income for current and future investment needs. The tax code is designed to prohibit tax

evasion by companies without dividends. Penalties will be imposed on companies if the

tax authorities detect a significant amount of relevant non-dividend tax. Therefore, when

a company reaches a large cash position, it must provide the tax authorities with a good

reason for maintaining these funds; otherwise, it should distribute additional funds to

shareholders in the form of dividends. The law may also impose additional restrictions on

the payment of dividends. These limits may be reflected in minimum dividends, or they

may be proposed as limits on loans received, which are determined based on dividends.

Additional legal restrictions are imposed on preferred shares; preferred shareholders

receive profits first, and the company may not distribute profits until the deferred

earnings of preferred shareholders have not been paid. With these clues, the main

question of this study is the relationship between cash dividends and earnings growth of

companies listed on the Tehran Stock Exchange. The question is whether the change in

benefits will affect the company's revenue.

2. Theoretical Foundations

2.1. The Concept of Dividend

The concept of profit has come under criticism in the development and management of

institutions in recent years, and economic theorists have replaced it with other concepts

such as utility. For this reason, profit is often rejected in criticism and claims that profit

is not the only reason for a company to be formed, but rather to introduce other welfare,

social, political, and economic reasons as the main goal of company formation (Flint et

al., 2010). Economists also know that capital formation is effective for growth and

economic development. Capital formation comes either from the government or from the

private sector. Governments consider factors in their investments such as infrastructure

projects, economic guidance policies, provision of facilities to participate in regulating the

supply and demand of goods and services... and profit in support of political and military

objectives.

The relationship between dividends and returns: As profits are distributed, companies

must pay higher fees for issuing stock to fund new investments. Dividend return theory

explains this aspect of dividend policy ambiguity. Since managers know more about a

company's future profitability than outside investors, they can have better business

prospects for dividend returns as dividends increase, and they can often experience

higher share prices in the market. Additionally, financial managers may use dividend

policies to determine the quality of earnings due to their informational content. In this

regard, since outside investors have less information about a company's future

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profitability, dividend performance is seen as information derived from expected future

cash flows, as stock prices in the market respond quickly to dividend decisions. Ross

(1987) studied the characteristics of dividend payments in signal models. In signaling

theory, cash dividends provide the prospect of a company's future profits. The company

is receiving cash dividends by paying to provide more information about the company's

future market profitability. Higher profits allow the company to leave more cash behind

through dividends; therefore, dividends reflect the company's steady state profitability.

2.2. Income growth

Income growth is the change in income over a specific period. Information asymmetry

related to growth opportunities is higher than that related to assets (Penrose and

Penrose, 2009). Thus, when all retained earnings have been made, hierarchy theory

(Fama & French, 2001, Myers & Majluf, 1982) predicts the debt priority of firms with high

growth opportunities. According to Roth (1977), creditors are aware of high growth

opportunities for companies, and they offer them ideal credit terms. Therefore, according

to signaling theory, the expected relationship between a firm's growth opportunities and

liabilities is positive. According to agency theory, the relationship between growth

opportunities and liabilities can be positive or negative.

2.3. Review of Literature

Parker (2005) showed that at the level of market indices in the United States, Canada,

and Australia, dividend payout ratios are negatively correlated with future earnings

growth, as stock profits and dividends are characteristic of large companies. Higher

dividend payout ratios lead to higher future profit growth, which was the weakest

relationship in Australia during the 1956-2005 period.

Sava (2006) studied dividend signaling theory on the Deutsche Börse, and he found some

evidence on the relationship between a reduction in cash dividends and a company's

future performance, but his findings did not verify that an increase in cash dividends has

an impact on future companies’ performance. Both studies (Mayers, 1984; Gul, 1999;

Gordon, 1962) confirm that high dividend payout ratios can be detrimental to future

income growth.

ap Gwilym et al., (2006) studied the relationship between future earnings growth and

dividend payout ratios and concluded that the dividend payout ratio is a broad topic for

researchers in theoretical modeling. Although the researchers ignored dividend payout

ratios, there was a positive correlation between dividend payout ratios and future

dividend growth. A delayed negative relationship or negative coefficient was found in

variable profit growth. According to free cash flow theory, dividend payments are

inversely related to the level of investment GDP and GDP.

Izadinia (2009) studied 11 factors to evaluate dividend policy. These variables are

company leverage, company size, last year's dividends, investment opportunities, cash

earned by the company's operating activities, expected profits for the following year,

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average interest paid by competing companies, inflation rate, percentage of free float,

and average profit growth over the previous five years rate and company earnings per

share. Significant relationships were identified for factors such as firm size, last year's

dividends, investment opportunities, following year's expected profits, and inflation, but

not for other variables.

Freshteh Eftekhar Nejad (2009) studied the effect of retained and distributed earnings

on future profitability and return on equity. This paper divides profits into two parts:

retained earnings and distributed dividends; then, it analyzes the effects of retained

earnings and distributed earnings on the future profitability and return on equity of

companies listed on the Tehran Stock Exchange. Retained earnings include current

operating accruals, non-current operating accruals, accumulated cash flow and

distribution income, including cash flow to shareholders and cash flow from debt. 50

companies listed on the Tehran Stock Exchange, companies in the period 2007-2012

were analyzed by multiple regression analysis and panel analysis (Eftekhar Nejad, 2009).

Dewasiri et al. (2019) identified the determinants of dividend policy in emerging and

developing markets. Their results showed that past dividend decisions, earnings,

investment opportunities, profitability, free cash flow (FCF), corporate governance,

country ownership, company size, and industry influence as key determinants of the

propensity to pay dividends. Additionally, past dividends, investment opportunities,

profitability and dividend premiums are identified as determinants of dividend payments.

Fakhari and Yousef Ali Tabar (2010) conducted a study titled "The relationship between

dividend policy and corporate governance of companies listed on the Tehran Stock

Exchange"; they studied the relationship between dividends and corporate governance

as a proxy for resolution problem tool. According to a checklist, they divided corporate

governance into eight categories: disclosure, business ethics, training, compliance with

legal requirements, auditors, ownership, board structure, management, asset and

liquidity ratios, calculations and divisions. The results show that stock companies use

dividends for reputation and prestige. Regarding the important relationship between

corporate governance and dividends, corporate governance has a lower impact on

dividends (Fakhari & Yousef Ali Tabar, 2010).

In their study Jahankhani and Ghorbani (2005) researched the determinants of DP in

companies listed on the Tehran Stock Exchange. They concluded that there was no

significant association between firm growth and development, ownership concentration,

and the amount of cash and dividend decisions, whereas increased risk, investment

opportunities, firm size, and increased debt in the capital structure were all significantly

lower the company's dividend payments.

Etemadi and Chalaki (2005) researched the relationship between the Tehran Stock

Exchange's performance indicators (operating cash flow, operating income, and earnings

per share) and cash dividends. The results show a significant relationship between a

company's current performance and its cash dividend payments. Based on the results,

the most important determinants of dividends appear to be EPS, operating income, and

operating cash flow, respectively.

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Massoud Kheirandish; Mohsen Mohammadi Khyareh

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Mashayekh and Abdollahi (2011) examine the relationship between ownership

concentration, performance indicators, and corporate dividend payments. The results

show that ownership concentration can improve corporate performance, and the higher

the ownership concentration, the better performance indicators such as ROA and Tobin's

Q. Based on the second hypothesis, there is a positive relationship between firm

performance and payment policy. However, the results of the third hypothesis assert that

no significant relationship is observed between ownership concentration and dividend

decisions. This means that in Iran, most of shareholders cannot significantly influence

dividend payment decisions.

Abbaszadeh, Vadeei, and Pakdel (2012) examine the association of institutional

ownership, cash flow, and dividend policy. The results show a significant positive

relationship between levels of institutional ownership, active institutional ownership, and

dividend policy. However, the relationship between inactive institutional ownership and

payment policy is negative. Furthermore, the findings show a positive and significant

association between operating cash flow and corporate dividend decisions.

Asadi and Oladi (2015) studied 133 public companies from the 10-year period from 2001

to 2010 and showed that the most important dividend determinant is market risk, which

is negatively related, followed by market and book value, and firm size, which is positively

related.

Kheirkhah et al. (2019) studied the relationship between the market concentration and

power of the Tehran Stock Exchange and the company's dividend policy between 2010

and 2015. Their results showed that there is a significant positive correlation between

market concentration and the power of payment decisions. On the other hand, the

relationship between market power and concentration and the dividend payout ratio is

also statistically significant.

2. Research Methodology and Data

In terms of relevance and research methodology, this is post hoc quasi-experimental

research in the field of empirical accounting; it is a form of applied research because it

is conducted with real data and can be used to manipulate data. By its nature and

purpose, this study is practical. The research is based on real-world data from the stock

market, financial statements, notes to financial statements, and company meeting

reports. The necessary data to test hypotheses was gathered by pulling the required data

directly from financial statements, Tadbir Pardaz databases and stock exchange websites.

After screening and classification of industry sample companies, some calculations were

performed using Excel software. The classification of stocks is considered when grouping

companies in different industries. Multiple linear regression models were used for

statistical analysis; EViews and Stata software were used for data analysis.

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Massoud Kheirandish; Mohsen Mohammadi Khyareh

210

2.1. Data

The sample for this study is 131 companies from various industries active on the Tehran

Stock Exchange from 2007 to 2020, with the following characteristics:

1) Fiscal year ends on 30 December.

2) The company should not change its financial year;

3) The company should not be an industry company due to the nature of the industry

being different from other member companies;

4) Due to the need to roll back to 12 months, the securities (common shares) are traded

at intervals of 4 months from the beginning of the period.

5) Information should be available.

2.2. Developing Theoretical Hypothesis

This study uses the method reported by Zhou and Ruland (2006) to investigate the

relationship between dividend payout ratio and future income growth. Under a balanced

dividend policy, there is a significant positive relationship between dividend payments

and future income growth. Therefore, we introduce the Model (1) as follow:

EPSGRt + 1 = β0 + β1Payoutt + β2Sizet + β3ROAt+1 + β4Betait + β5AGt+1 + β6DivYieldt +β7EPSGRt + et;

Where:

EPSGRt+1 is future earnings growth. It is the annual financial measure of common stock

from year t to year t+1 as the next revenue growth.

Payoutt is Dividend payout ratio. It is measured by dividing the ratio of the profits in

foreign exchange earnings from year t to year t+1.

Sizet is measured using the natural logarithm of total assets at end of year t;

ROAt is the forecasted return in year t+1; it is a proxy as an indicator when the first

quarter return in year t+1 is divided by the next quarter's total assets.

Betat is the market risk factor (e.g., the beta of an individual firm) for year t;

AGT+1 is future asset growth; it measures the annual growth rate of total assets in t+1;

DivYieldt is the dividend yield (dividend at the end of year t divided by the current stock

price). It is current income growth, measured as the annual increase in after-tax income

from common stock from year t-1 to year t.

Earnings per share (EPS), return on assets (ROA), and return on equity (ROE) are often

used to measure future income. Since EPS is familiar to most investors, this study takes

EPS as the priority, and selects ROA and ROE for strong testing (ap Gwilym et al., 2006).

In fact, researchers succeed when there is a positive correlation between dividend payout

ratios and future earnings growth. Therefore, the following model (2) is used to measure

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Massoud Kheirandish; Mohsen Mohammadi Khyareh

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the interaction between dividend payout and dividend ratio. Earnings per share (EPS),

return on assets (ROA) and return on equity (ROE) are often used to measure future

income. Since EPS is familiar to most investors, this research gives priority to EPS and

selects ROA and ROE for robustness check. In fact, the researcher shown that there is a

positive correlation between dividend payout ratio and future earnings growth. Therefore,

the following Model (2) is used to measure the interactions between dividend payments

and the ratio of dividends:

EPSGRt + 1 = β0 + β1Payoutt + β2Sizet + β3ROAet + β4Betat + β5AGt + 1 + β6DivYieldt +β7DivYieldt *Payoutt

+ β8Epsgrt +et;

where; DivYieldt *Payoutt is the interaction term between dividend yield and dividend

payout ratio. Combining the results of model (2), in this paper, we look for dividend

reasons for future earnings growth in model (3) a follow

EPSGRt + 1 = β0 + β1Payoutt + β2Sizet + β3ROAet + β4Betat + β5AGt + 1 + β6DivYieldt +β7 Mt/At + β8 Mt/At

*Payoutt + β8EPSGRt +et;

where; Mt/At is the interaction term between dividend payout ratio and investment

growth opportunity. In fact, the above model examines the relationship between dividend

payments and stock income growth in two different directions.

3. Empirical Results

3.1. Descriptive Statistics

Table 1. Descriptive Statistics

Variables

EPSGRt+1

Payoutt

ROAt

Betat

AGT+1

DivYieldt

SIZE

ROE

Future

revenue

growth

Dividend

payout ratio

Expected

return on

assets for

the year t+1

Market

Risk

Index

Asset

growth

in the

future

Yield

profit

Firm

size

Return

equity

Mean

0.163

522

0.75

-0.0072

0.12

0.042

25125

0.23

Median

0.152

433

0.77

0.014

0.14

0.166

88966

0.201

Maximum

0.435

4000

0.87

2.307

0.15

0.29

22419

0.13

Minimum

0.115

0.65

-6.24

0.0006

-84942

0.11

Std. Dev

0.81

166972

0.07

0.704

0.0042

0.007

41824

0.032

Jarque-Bera

2.56

622

2.25

1.5

1.73

1.2

2.1

0.9

Probability

0.32

433

0.38

0.56

0.47

0.67

0.41

0.8

Normality of the variables has been investigated in the last two rows of Table 1. It is

seen in the row of Jarque-Bera statistic that the level of scores are mentioned wether the

variables are normal or not normal. In the next row, or last row, the error probability of

each variable is stated to investigate the above hypothesis. In this regard, no variable is

normal at the probability level of less than 1 percent. It means that the null hypothesis

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The relationship between cash dividend and earnings growth of listed companies in

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Massoud Kheirandish; Mohsen Mohammadi Khyareh

212

is verified for all variables. Time-series regression method is used to test the research

hypotheses.

Normality of variables is investigated in the last two rows of Table 1. As can be seen, in

the Jarque-Bera statistic, the score level is mentioned whether the variable is normal or

Non-normal. In the next or last line, the probability of error for each variable is stated to

study the above hypothesis. In this regard, none of the variables are normal at probability

levels below 1%. This means that the null hypothesis is verified for all variables. Time

series regression methods are used to test research hypotheses.

3.2. Estimation Results of Model (1)

The first test aims to investigate effective measuring for dividend payout ratio in the

companies listed in Iran stock market. Its statistical hypothesis is defined as follows:

According to a balanced dividend policy, there is a positive relationship between dividend

payout ratio and future revenue growth.

H0: There is a positive relationship between dividend payout ratio and future revenue

growth at the company level in companies listed in Tehran Stock Exchange.

H1: There is no significant relationship between dividend payout ratio and future revenue

growth at the company level in companies listed in Tehran Stock Exchange.

The regression model (1) is used at the corporate level and the combined data for testing

the first hypothesis.

The first test aims to investigate a valid measure of the dividend payout ratio of

companies listed on the Iranian stock market. Its statistical assumptions are defined as

follows:

According to the balanced dividend policy, the dividend payout ratio is positively related

to future revenue growth.

H0: For companies listed on the Tehran Stock Exchange, the payout ratio is positively

correlated with future revenue growth at the company level.

H1: Among companies listed on the Tehran Stock Exchange, there is no significant

relationship between company-level dividend payout ratios and future revenue growth.

The regression model (1) was used at the firm level and the combined data was used to

test the first hypothesis. The estimation results reported in Table 2.

Based on the presented results, since t-statistics for every variable is 0.000, it is possible

to argue that all variables are verified at the level of below 1 percent; the null hypothesis,

indicating each variable is zero, is rejected. On the contrary, the main research variable

has a high t-statistics (2.88) indicating that companies’ dividends payment ratio affects

the future earnings growth at the error probability less than one percent; they have

positive relationship. Therefore, H1 hypothesis is verified, and one can assert that there

is significant relationship between dividends payment in the companies listed in Tehran

Stock Exchange and the company’s future earnings growth. As a result, the first

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hypothesis is verified at the 99% confidence level. In this manner, if paying dividends for

companies listed in Tehran Stock Exchange increases one percent, the company’s future

earning will increase with the rate of 2.6. There is a positive relationship between firm

size, predicting return on assets for the year ahead, and future asset growth to future

revenue growth of companies. There is a negative relationship between market risk index

and performance of dividend to companies’ future earnings growth.

Table 2: Regression result of model (1)

Dependent Variable: EPSGRt+1

Future revenue growth

Method: Pooled EGLS (Period weights)

Variable

Coefficient

Std. Error

t-Statistic

C Intercept

-5.62

4.0

-3.51

Payoutt

2.6

0.9

2.88

SIZE

0.0018

2.84E-08

63.38

ROAt

13.97

0.01

17.46

Betat

-0. 49

0.002

-24.5

AGT+1

2.46

0.28

8.78

DivYieldt

-7.01

0.30

-23.36

EPSGRt

0.01

0.003

3.33

Weighted Statistics

R-squared

0.92

Mean dependent var

724.59

Adjusted R-squared

0.92

S.D. dependent var

1512.47

S.E. of regression

76.207

Sum squared resid

37127396

F-statistic

13833.87

Durbin-Watson stat

1.82

Prob(F-statistic)

Unweighted Statistics

R-squared

0.106

Mean dependent var

163.91

Sum squared resid

37842275

Durbin-Watson stat

1.46

Based on the presented results, since the t-statistic for each variable is 0.000, it can be

said that all variables are validated at the level below 1%; the null hypothesis that each

variable is zero is rejected. Conversely, the main study variable has a high t-statistic

(2.88), indicating that the firm's dividend payout ratio affects future earnings growth

with less than 1% probability of error; they have a positive relationship. Therefore, the

H1 hypothesis is verified, and it can be asserted that there is a significant relationship

between the dividend payments of companies listed on the Tehran Stock Exchange and

the company's future earnings growth. As a result, the first hypothesis was validated at

the 99% confidence level. Thus, if the dividend payment of a company listed on the

Tehran Stock Exchange increases by 1 percentage point, the company's future earnings

will increase by a factor of 2.6. There is a positive correlation between company size,

predicted return on assets for the next year, and future asset growth and the company's

future revenue growth. Market risk index and dividend performance have a negative

correlation with a company's future earnings growth.

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3.3. Estimation Results of Model (2)

The second test aims to study the relationship between the interaction terms of dividend

yield and dividend payout ratio and future income growth in the stock market. where

DivYieldt *Payoutt is the interaction term between dividend yield and dividend payout

ratio, and its statistical assumptions are defined as follows:

H0: For companies listed on the Tehran Stock Exchange, the interaction term of

dividend yield and dividend payout ratio has a significant relationship with future

revenue growth.

H1: For companies listed on the Tehran Stock Exchange, the interaction term of

dividend yield and dividend payout ratio is not significantly related to future revenue

growth. The regression model (2) was used at the industry level and the combined data

was used to test the second hypothesis.

Estimation results of this study also confirms previous model except that the variable

“DivYieldt *Payoutt” is added. Variable “DivYieldt *Payoutt” is negative.

Table 3: Regression Results of Model (2)

Dependent Variable: EPSGRt+1

Future revenue growth

Method: Pooled EGLS (Period weights)

Variable

Coefficient

Std. Error

t-Statistic

C Intercept

-0.527

2.5

-2.1

Payoutt

1.6

0.6

2.66

SIZE

0.0021

0.0011

1.90

ROAt

11.67

0.7

16.67

Betat

-0. 48

0.1

-4.8

AGT+1

2.32

0.4

5.8

DivYieldt

-6.015

0.79

-7.61

Payoutt*DivYieldt

-5.39

0.86

-6.26

EPSGRt

0.012

0.002

Weighted Statistics

R-squared

0.970788

Mean dependent

var

992.9963

Adjusted R-squared

0.970756

S.D. dependent

var

3220.122

S.E. of regression

73.55683

Sum squared resid

34584606

F-statistic

30345.88

Durbin-Watson

stat

1.820631

Prob(F-statistic)

Unweighted Statistics

R-squared

0.123862

Mean dependent

var

163.9166

Sum squared resid

37094783

Durbin-Watson stat

1.53669

Based on the presented results, since the t-statistics for dividend yield and dividend

payout ratio are 0.000, it can be said that these variables are validated at a level below

1%; therefore, the null hypothesis is validated, and it can be asserted that the Tehran

Stock Exchange there is a significant relationship between a listed company's dividend

payment and the company's future earnings growth. As a result, the second hypothesis

was validated at the 99% confidence level. However, there is a negative correlation

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between these two variables. In this regard, the model's coefficient of determination

indicates that the model explains 97% of the abnormal return variation. If the interaction

between dividend yield and dividend payout ratio increases by one unit, the future income

growth rate decreases by 5.39 units. This means negative relationships for them. The

relationship of other variables is the same as that of Model 1, and the labels remain

unchanged.

3.4. Estimation Results of Model (3)

The third test investigates the interaction term between dividend payout ratios and

investment firm growth opportunities, and its impact on future earnings growth of Tehran

Stock Exchange-listed firms. When At/Mt is the interaction term between payout ratio

and investment growth opportunities, its statistical assumptions are defined as follows:

H0: There is a significant relationship between the dividend payout ratio interaction term

and the investment growth opportunities of companies listed on the Tehran Stock

Exchange.

H1: There is no significant relationship between the dividend payout ratio interaction

term and the investment growth opportunities of companies listed on the Tehran Stock

Exchange.

The regression model (3) was used at the industry level and the combined data was used

to test the third hypothesis. To test the third hypothesis based on the above model and

the results are summarized in Table (4).

Table 4: Regression Results of model (3)

Dependent Variable: EPSGRt+1

Method: Pooled EGLS (Period weights)

Variable

Coefficient

Std. Error

t-Statistic

-3.59

0.76

-4.72

Payout

2.4

0.98

2.448

SIZE

0.028

0.009

3.11

ROA

10.03

2.90E+00

3.45

Betat

-0. 46

0.2

-2.3

T+1

1.99

0.7

2.84

DivYield

-6.78

1.5

-4.52

Mt/A

2.19

1.7

1.28

Mt/A *Payoutt

-4.08

2.11

-1.93

EPSGRt

0.021

0.004

5.25

Weighted Statistics

R-squared

0.98

Mean dependent var

1027.4

Adjusted R-squared

0.98

S.D. dependent var

3717.3

S.E. of regression

73.13

Sum squared resid

34180011

F-statistic

42778

Durbin-Watson stat

1.77

Prob(F-statistic)

Unweighted Statistics

R-squared

0.124

Mean dependent var

163.92

Sum squared resid

37071107

Durbin-Watson stat

1.53

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Based on the presented results, since the t-statistic for each variable is 0.000, it can be

said that all variables are validated; since the t-statistics probability of the combined

variable between the dividend payout ratio of the companies listed on the Tehran Stock

Exchange and the investment growth opportunity Less than 0.10 in the industry, so H0

is validated. Dividend payout ratios and corporate investment growth opportunities have

a negative impact on future corporate earnings growth. The resulting coefficients show

that if the ratio between "dividend payout ratio" and "opportunity for company

investment growth" increases by one-unit, future revenue growth will decrease by a ratio

of 4.08.

4. Conclusion

Dividend policy is one of the most important corporate fiscal policies considered by

researchers due to its impact on financing and investment policies. Various theories have

been proposed to describe it in modern financial management, thereby studying new

aspects of payment effects and implications along with other important factors in the

stock market and public companies. Companies must consider many factors to decide

how much cash dividends to pay. Cash dividends are an interesting aspect since many

investors are willing to predict future investments and decide to hold or sell their shares

in the future.

Findings show that the impact of cash dividends on company earnings and stocks can be

very helpful. this paper aims to investigate the relationship between dividends and future

income growth of companies listed on the Tehran Stock Exchange. According to the

theoretical basis of the research, the main research model is established to test the

relationship between the dividend rate and future income growth. For this, the

researchers used information from the Tehran Stock Exchange from 2007 to 2020. Since

the payout ratio has multiple dimensions, the relationship between the payout ratio

dimension and future revenue growth is tested in the form of three hypotheses. Using

these three assumptions, the combined variable of the dividend payout ratio is calculated

and the relationship between the variable and future income growth is investigated. This

article is useful for the Tehran Stock Exchange organization as well as for investment

companies on the stock exchange. Additionally, managers can use this article to

implement their policies in the company.

listed companies take advantage of retained earnings to assist listed companies in

financing, increase shareholder utility through dividends on time, and increase listed

companies' earnings. Generally, the following suggestions can be made: Growth of the

company.

- It is recommended that managers, investors, etc. pay more attention to dividend

payments, as this has a significant impact on future earnings growth.

- Advise managers, investors, and others to pay more attention to dividend payments,

as the interaction term of dividend yield has a significant relationship with future earnings

growth through dividend payout ratio.

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The relationship between cash dividend and earnings growth of listed companies in

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Massoud Kheirandish; Mohsen Mohammadi Khyareh

217

- Advise managers, investors, and others to pay more attention to dividend payments as

it has a significant impact on future income growth by increasing the growth of

investment opportunities.

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PRESERVATION OF EUROPEAN CULTURAL HERITAGE:

EXPERIENCE AND MODERN TRENDS

ALEXANDRA BORISOVNA EGOREICHENKO

arsvitae133@gmail.com

Cand.Sc. (Political Science) and an Assistant of the Department of International Humanitarian

Relations, Faculty of International Relations at the Saint Petersburg State University (Russian

Federation). Her professional experience is more than 3 years. The sphere of her scientific

interests includes such topics as international cultural heritage, European culture, cultural

communication, multiculturalism and urban studies

1. Introduction

European cultural heritage is a rich and diverse mosaic of cultural and creative

manifestations, a legacy from past generations. It includes natural, built and

archaeological sites, museums, monuments, works of art, historical cities, literary,

musical and audiovisual works, as well as the knowledge, practices and traditions of

European citizens.

Policy in this area primarily depends on the EU member states, regional and local

authorities, supranational institutions, as well as their strategies and programs. The EU

seeks to popularize cultural heritage sites and provide wide access to them, trains

specialists in this field, develops conservation and restoration methods, as well as

coordinates the efforts of European states and private actors.

According to the 2017 Eurobarometer survey on cultural heritage, 73% of respondents

live near cultural heritage sites, 51% regularly visit them, 68% think that the presence

of a cultural heritage site can have an influence on their holiday destination, 68% would

like to know more about cultural heritage, and 84% consider cultural heritage to be

important to them personally and for the community as a whole (Eurobarometer Report

466, 2017).

There are many world cultural heritage sites on the territory of Europe, which make up

almost half of the UNESCO tangible cultural heritage list. Italy, Spain, France and

Germany are at the top of the list of countries with the largest number of such sites. Italy

is a leader in the number of World Heritage Sites.

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The cultural heritage of the prehistoric era is represented in Europe by such objects as

the Lascaux Cave (France), the rock drawings of Valcamonica (Italy), the Altamira Cave

(Spain), the megalithic monuments of Stonehenge and Avebury (England). The cultural

heritage of Ancient Greece includes the ruins of the city of Delphi, the ensemble of the

Acropolis of Athens, the archaeological sites of Delos, the monasteries of Meteora, the

city of Rhodes, etc. The cultural heritage of Ancient Rome includes the Villa Adriana at

Tivoli, the Villa Romana del Casale, the archaeological areas of Pompeii and Herculaneum,

ancient Syracuse, etc. The cultural heritage of Medieval Europe includes Speyer Cathedral

(Germany), Chartres Cathedral. The cultural heritage of the Renaissance includes the

historical center of Florence (Italy), Venice, Rome, Verona, Siena, Pisa, the Church of

Santa Maria delle Grazie with "The Last Supper", etc. The cultural heritage of the modern

age includes the ensemble of the Palace and Park of Versailles, the palaces and parks of

Potsdam and Berlin. The cultural heritage of the contemporary age includes the work of

Antoni Gaudi in Barcelona, Le Havre (France), the architectural work of Le Corbusier, the

Rhaetian Railway in the Albula, as well as the Auschwitz concentration camp, which was

added to the World Heritage List not because of its architectural significance, but for the

memory of cruel acts in order to attract the attention of young generations to the

problems of Nazism and discrimination (World Heritage list, UNESCO).

European cultural sites also occupy a significant part (a quarter) of the UNESCO

intangible cultural heritage list. These include, for example, Flamenco dance (Spain),

French cuisine (France), beer culture (Belgium), falconry (Austria), etc. The intangible

heritage list is aimed at overcoming the extinction of local cultures and strengthening the

role of traditions and customs, because unlike tangible monuments that can be restored,

intangible ones can disappear by nature (Intangible World Heritage list, UNESCO).

Human activity often has a negative impact on world cultural heritage sites. The list of

world heritage in danger is expanding due to human actions, such as economic activity

or environmental conditions. With regard to this problem in the European region, in 2016

the question arose of removing the city of Vienna from the UNESCO World Heritage List

due to the violation of height restrictions, which is now a common problem for many

cities with a historical center. It was also demanded that the city authorities of Prague

reconsider their plans for the construction of high-rise buildings, which could disrupt the

architectural ensemble of the city center and jeopardize being on the list. In 2009,

UNESCO excluded the city of Dresden from the world cultural heritage list due to the fact

that the city authorities decided to build a transport bridge over the River Elbe, thereby

disrupting the historical appearance of the city

2. International and European legislation in the field of cultural heritage

protection

International legislation in the field of the protection of cultural heritage monuments

develops ethical and legal principles for state activities, calls for cooperation between

Dresden removed from UNESCO World Heritage List (2009). (online). Available at

https://www.bbc.com/russian/rolling_news/2009/06/090625_rn_dresden_unesco.

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state structures and civil society institutions, and encourages the protection of cultural

heritage in order to maintain sustainable development.

The UNESCO World Heritage List is a register of cultural monuments, each of which meets

one or more criteria. The status of a World Heritage Site provides the following

advantages: raising the level of culture in the region; serving as an additional guarantee

of preservation; increasing the prestige of the territory; promoting the popularization of

objects and ensuring the influx of tourists and investments; providing adequate

financing; ensuring control over the condition of the sites.

The 1972 UNESCO Convention Concerning the Protection of the World Cultural and

Natural Heritage is of fundamental importance in the protection of tangible cultural

heritage. The Convention defines cultural heritage as monuments (architectural works,

works of monumental sculpture and painting, elements or structures of an archaeological

nature, inscriptions, cave dwellings and combinations of features, which are of

outstanding universal value from the point of view of history, art or science), groups of

buildings, and sites that are of outstanding universal value from the historical, aesthetic,

ethnological or anthropological point of view (UNESCO Convention, 1972).

A UNESCO document devoted to intangible cultural heritage is the Convention for the

Safeguarding of the Intangible Cultural Heritage 2003. According to the Convention, the

“intangible cultural heritage” means the practices, representations, expressions,

knowledge, skills – as well as the instruments, objects, artefacts and cultural spaces

associated therewith – that communities, groups and, in some cases, individuals

recognize as part of their cultural heritage. The intangible cultural heritage also includes

oral traditions and expressions, including language, and performing arts. It should be

noted that not all European countries have acceded to this convention: the UK still does

not consider this a priority (UNESCO Convention, 2003).

Going forward, we should turn to the legislative framework of the Council of Europe. It

begins with the European Cultural Convention of 1954, the purpose of which was to

develop mutual understanding among the peoples of Europe and reciprocal appreciation

of their cultural diversity, to safeguard European culture, and to promote national

contributions to European common cultural heritage (European Cultural Convention,

1954).

Later, in 1985, the European Convention on the Protection of the Archaeological Heritage

was adopted in Granada, the main purpose of which was to strengthen and promote the

policy of preserving Europe’s heritage. The document also reaffirmed the need for

European solidarity regarding the preservation of heritage and was called upon to

facilitate practical cooperation between the Parties. In 1992, the document was revised,

and a new “European Convention on the Protection of the Archaeological Heritage” was

signed in Valetta, Malta. It established a new basic legal standard for Europe, which

should be consistent with national policies for the protection of archaeological assets as

sources of scientific and documentary evidence, in accordance with the principles of

integrated conservation (European Convention, 1992).

The Council of Europe’s latest document on cultural heritage is the 2005 Framework

Convention on the Value of Cultural Heritage for Society, signed in Faro, Portugal. The

aim of the Faro Convention is to draw international attention to cultural heritage as a

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broad and cross-disciplinary concept that focuses on people and human values, to outline

the basic principles of the approach to cultural heritage, and to emphasize “the value and

potential of cultural heritage wisely used as a resource for sustainable development and

quality of life in a constantly evolving society.” The Convention calls on us to recognize

that sites and places alone are not what is important about cultural heritage. They are

important because of the meanings and uses that people attach to them (Faro

Convention, 2005).

The role of the European Commission is based on Article 3.3 of the Lisbon Treaty, which

states that the Union “shall respect its rich cultural and linguistic diversity and shall

ensure that Europe’s cultural heritage is safeguarded and enhanced.” The Treaty on the

Functioning of the European Union gives the Commission specific tasks to contribute to

the flourishing of cultures in the Member States, while respecting their diversity and

bringing “the common cultural heritage to the fore” (Article 167). The role of the

European Union is to support and complement the actions of the Member States in

preserving and safeguarding Europe’s cultural heritage. The Commission has developed

a number of relevant strategies and programs, and also supports and encourages policy

cooperation between the Member States and heritage stakeholders (Lisbon Treaty,

2007).

During the recent presidency of the EU, some countries have been actively discussing

cultural heritage issues. At the conference on the “Cultural Heritage and the EU 2020

Strategy - towards an Integrated Approach” in 2013, the Lithuanian Presidency put

forward the concept of local and civil society participation in cultural heritage issues and

the need to include public opinion in all areas of cultural policy. In the first half of 2014,

the Greek Presidency organized a conference linking cultural heritage with sustainable

economic and social development in the EU. In the second half of 2015, the Luxembourg

Presidency responded to the destruction of World Heritage Sites in Iraq and Syria,

including the destruction of cultural heritage and the trafficking of its artifacts as a means

of financing terrorist activities. In March 2017, the EU adopted the Rome Declaration,

which defined the preservation of cultural heritage, together with the promotion of

cultural diversity, as an element of a social Europe. In the second half of 2017, the

Estonian Presidency devoted its activities to cultural heritage in the digital age.

In May 2014, EU Ministers for Culture called for the “mainstreaming of cultural heritage

in national and European policies” and “the development of a strategic approach to

cultural heritage.” Responding to this call, in July 2014, the European Commission

adopted a Communication: “Towards an Integrated Approach to Cultural Heritage for

Europe” (Communication from the Commission, 2014).

3. Contemporary EU initiatives for the protection and promotion of

cultural heritage

Currently, there are three EU programs specifically dedicated to cultural heritage: the

European Heritage Days, the European Heritage Label, and the EU Prize for Cultural

Heritage.

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The European Heritage Days is the most widely celebrated cultural event in Europe, which

takes place every year in September. The Council of Europe began its initiative in 1985,

which later became a joint action organized with the EU. In both organizations, the

program is recognized as one of the main flagship initiatives and an example of successful

cooperation at the European, national, regional and local levels (European Heritage

Days).

The European Heritage Label is a prototype of the World Heritage List, but at the

European level. This distinguishing label marks European cultural heritage sites, which is

a recognition awarded to buildings, documents, museums, archives, monuments or

events that are considered as milestones in the creation of modern Europe. The program

is managed by the European Commission (European Heritage Label).

The EU Prize for Cultural Heritage was launched in 2002 by the European Commission in

partnership with the Europe Nostra organization (a pan-European federation created to

promote and safeguard Europe’s cultural heritage). The award recognizes and promotes

the best cultural heritage preservation activities, management, research, education and

communications in this area. It is designed to attract public attention to cultural issues

and is aimed at recognizing cultural heritage as a strategic resource of European society.

During its existence, organizations and individuals from 39 countries submitted a total of

2,883 applications for the Prize. As for the number of applications by country, Spain ranks

first, with 516 projects, followed by Italy, with 296 entries, and the UK, with 289

applications (EU Prize for Cultural Heritage).

The EU officially declared 2018 as the European Year of Cultural Heritage. The aim of this

initiative is to raise awareness of the opportunities that cultural heritage brings to

European communities, mainly in terms of intercultural dialogue, social cohesion and

economic growth. From June 18 to June 24, 2018, the European Cultural Heritage

Summit was held in Berlin. This Summit, with the motto “Sharing Heritage – Sharing

Values,” was recognized by the European Union as one of the key public events of the

European Year of Cultural Heritage. The key initiatives within the framework of the Year

are based on such ideas as engagement, sustainability, protection and innovation

(European Year of Cultural Heritage 2018).

4. The “common good” theory and participatory governance of European

cultural heritage

The great importance of the community’s participation in the preservation of cultural

heritage is confirmed by a wide range of literature, including scientific research and

institutional conventions. However, there is no comprehensive definition for a

“community”, as the interpretation of this word varies according to different contexts.

Community can be defined as “a people with common interests living in a certain area”

or “a body of persons having a common history or common social, economic, and political

interests” (Participatory governance, 2015).

In the World Heritage Convention, the word “community” is used interchangeably with

“international community”, “local and regional governments”, “present and future

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generations of all humanity”, “local communities, non-governmental organizations and

other interested parties”, the general public, civil society, and the local population.

The Council of Europe’s Faro Convention suggested the notion of “heritage community”

to refer to people “who value specific aspects of cultural heritage which they wish, within

the framework of public action, to sustain and transmit to future generations.” Members

of a civil society as a whole can constitute a “heritage community” if they mutually

perceive cultural heritage as an emotional and intellectual platform on which individual

and community values are built. Community is essentially valuable, as the cohesion of

people ascribes a common interest.

European cultural heritage must be considered from the point of view of the common

good theory, since ultimately it belongs to humanity, European society, and is managed

by cultural heritage institutions for future generations of Europeans.

In a general sense, the term "common good" describes a specific "good" that is shared

by everybody and beneficial. The common good does not belong to anyone; it is common,

but beneficial for everybody (Starr, 2013).

Historic city centers, monuments, local museums, parks, and landscapes benefit the

community, can be key to local development, helping to improve the quality of life of this

community, and, ultimately, provide integration, social cohesion and develop a sense of

belonging.

Cultural heritage, which is a common good for the entire European community, needs to

be governed, and in this regard, it is necessary to refer to the term “participatory

governance”, or as commonly called in the Russian tradition, “public-private partnership”,

that is, the paradigm of the participation of citizens and communities in issues affecting

them.

Participatory governance is to strengthen relations between cultural heritage sites and

professionals, as well as everyone interested in cultural heritage. The participatory

governance of tangible, intangible, and digital cultural heritage is an innovative

sustainable approach that makes a real contribution to the governance and valuation of

cultural heritage.

The Council of the European Union in its “Conclusions on the Participatory Governance of

Cultural Heritage” of November 2014 called for the participation of the public and private

sectors at all levels of decision-making. It also called for “increased cooperation among

EU Member States in order to identify and disseminate best practices on bottom-up

approaches for joint inclusive management of cultural heritage.”

The document invites Member States “to develop multilevel and multi-stakeholder

governance frameworks which recognize cultural heritage as a shared resource by

strengthening the links between the local, regional, national and European levels of

governance of cultural heritage, with due respect to the principle of subsidiarity, so that

benefits for people are envisaged at all levels; promote the involvement of relevant

stakeholders by ensuring that their participation is possible at all stages of the decision-

making process; promote governance frameworks which recognize the importance of the

interaction between tangible, intangible and digital cultural heritage and which address,

respect and enhance its social, cultural, symbolic, economic and environmental values;

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promote governance frameworks that facilitate the implementation of cross-cutting

policies, enabling cultural heritage to contribute to objectives in different policy areas,

including to smart, sustainable and inclusive growth…” (Conclusions on the Participatory,

2014).

European states recognize the importance of protecting historical and cultural

monuments and pursue an active policy in this area, based on the concept of participatory

governance.

Italy, being the leader in the number of monuments of cultural heritage, gives their

protection one of the priorities in cultural policy. The country has created a system of

state bodies and institutes for heritage protection: the Ministry for Cultural Assets and

Environments (transformed into the Ministry of Cultural Heritage and Activities), the

Ministry of Public Works on Restoration of Objects, the Ministry of Tourism, and the

Ministry of Civil Protection.

Attracting private investment to heritage protection is widely used in the country. About

60% of Italy's national property is privately owned. Sponsors are banks, enterprises and

insurance companies. The successful experience of cooperation has prompted

government agencies to create such structural units of governance as mixed private-

state funds. Public organizations, such as the Italia Nostra, which has been operating

since 1955 to protect cultural monuments, play a large role in the cultural heritage

government system (Mironova, 2009).

An example of a successful public-private partnership in Italy is the protection of the

World Heritage Site ‘The Archaeological Areas of Pompeii, Herculaneum and Torre

Annunziata’. These archaeological areas, buried by the eruption of Vesuvius, were for a

long time in state ownership and governance, regulated by a centralized state system,

and experienced chronic underfunding. During the reform, the local heritage office

received financial and administrative autonomy from the ministry, which provided

increased funding and reduced bureaucracy. In 2001, a public-private partnership known

as the Herculaneum Conservation Project 79 was implemented, which contributed to the

conservation and governance of the archaeological area. The success of this initiative

brought a number of factors, and the project was based on actions taken by the local

heritage office. The Herculaneum Conservation Project, which is jointly coordinated by

the Packard Humanities Institute, the British School at Rome and the Soprintendenza

Archeologica di Pompei, is engaged in restoration, conservation of organic materials, and

documentation (Hammer, 2015).

The UK offers an original approach to heritage protection. Here a special role is played

by a charitable organization, completely independent of the state, founded in 1895 – The

National Trust. It is based on membership fees, donations and income from various

events. The organization's goal is to safeguard protected areas, farmland, archaeological

remains, nature reserves, villages, historic houses, gardens and even pubs (National

Trust annual report, 2017).

In Germany, the Berlin Museumsinsel, a UNESCO World Heritage Site since 1999, is a

good example of the participatory governance of a cultural heritage site. The museum is

the most important institution of cultural heritage, becoming more open and democratic,

less elitist. Berlin is a very modern and rapidly developing city, and the Museumsinsel

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has become one of the centers of its cultural and economic development by attracting

investment. The museum has collaborated with many international companies for its

development: Allianze Group, Bank of America, Merill Lynch, Deutsche Bank. Private

investments in the development of the facility reached 2.8 million euros in 2012

(Ioannou, 2013).

As for the initiatives to preserve European cultural heritage “from below,” one should

mention crowdfunding, the so-called “public funding”, which is a voluntary association of

grassroots for collective cooperation and financing of any projects. In the field of

financing cultural heritage projects through crowdfunding, Europe has made a major

breakthrough in recent years (Crowdfunding in the EU, 2016).

By order of the European Commission, to make the crowdfunding tool more accessible

for cultural and creative projects, the pan-European Internet Crowdfunding4Culture

platform (www.crowdfunding4culture.eu) was created. In France, since 2010, the Ulule

platform has been operating, on the basis of which more than 4,000 cultural projects

have been implemented. Sweden launched CrowdCulture (www.crowdculture.se), Spain

– Goteo (www.goteo.org), Italy – Derev (www.derev.com), Switzerland – Wemakeit

(www.wemakeit.com). In Greece, the Act4Greece platform was launched in 2016 with

the support of the National Bank of Greece. Within the framework of this platform, the

funds were fully collected for the restoration of the Karolos Koun Art Theater.

5. Conclusions

In conclusion, one should note that European culture and its values remain the most

important achievement of mankind, which must be simultaneously protected and

developed. Europe has been and remains the leader among the regions of the world in

the number of cultural heritage sites, which is a determining factor for the development

of the European region.

Europe’s cultural heritage is what makes its inhabitants European, as it reflects their

different and common values, culture and history. This is the true embodiment of the

European “unity in diversity”, which nourishes a sense of belonging to the local

community, and a sense of unity and solidarity in Europe. Cultural heritage connects

generations over many centuries of common history, being the basis for a respectful

dialogue of cultures and interaction between communities in Europe and other cultures

of the world. Cultural heritage is also a key factor in the sustainable development and

strengthening of social cohesion; it brings beauty to the environment and, thus, improves

well-being and quality of life.

It is safe to say that the topic of safeguarding European cultural heritage is extremely

relevant, as many initiatives and programs in this area have been implemented precisely

in the last few years.

The key new phenomenon is the concept of participatory governance and a shift from

the understanding that the protection of cultural heritage is only a state prerogative to

the understanding that society should and is interested in participating in the governance

of cultural heritage. Thus, the conceptual basis for the study of European cultural heritage

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should be the “common good theory” and the “grassroots theory”, as the EU legal

documents refer to the “community heritage” categories.

As the recognition of the link between cultural heritage and social well-being is growing,

the call for wider public participation in conservation practices is gaining strength and

momentum. Therefore, the preservation of cultural objects today should be more focused

on serving people and on the dominant role of local communities in influencing decisions.

The joint governance of cultural heritage offers opportunities to promote democratic

participation, sustainability and social cohesion, as well as to solve social, political and

demographic problems; supports the active participation of relevant stakeholders (within

the framework of public actions), that is, government agencies, private actors, civil

society organizations, non-governmental organizations, and volunteers, in decision-

making, planning, developing, monitoring and evaluating cultural heritage policies and

programs to increase the accountability and transparency of investment in public

resources, as well as to strengthen public confidence in political decisions; promotes

awareness of the values of cultural heritage as a shared resource.

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World Intangible heritage list (online). Available at https://ich.unesco.org/Intengible

How to cite this note

Egoreichenko, Alexandra Borisovna (2022). Preservation of European Cultural Heritage:

experience and modern trends. In Janus.net, e-journal of international relations. Vol. 13, Nº

1, May-October 2022. Consulted [online] in date pf last visit, https://doi.org/10.26619/1647-

7251.13.1.01

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NOTES

INTERNATIONAL ANARCHY REVISITED: THE ONTOLOGICAL

CHALLENGES OF A POST-SOCIAL CONCEPTION

CAROLINA ENCARNAÇÃO CORREIA

carolinacorreia53@gmail.com

Master's student in Politics and International Relations, with specialization in International

Relations, NOVA-FCSH (Lisbon, Portugal). Graduate in Politics and International Relations.

Founding Member and Chairwoman of the Board of The Orbis-International Relations Studies

Association. She was a member of the Center for Politics and International Relations and the

Youth Association of Geopolitical Understanding.

Introduction

The concept of international anarchy is introduced with great relevance in the variants of

realism and is one that different theories of International Relations identify as common.

It is in its consequences and interpretation that views tend to contrast. However, the

present excursion attempts to reflect critically on these same ontological assumptions of

international anarchy – especially those presented by the realistic school, specifically the

neorealist strand.

Within the realistic literature, the assumptions of international anarchy tend to vary in

its interpretation, highlighting Raymond Aron's classical realistic vision of Kantian

inspiration and Kenneth Waltz's hobbesian-inspired structuralist vision. The differences

between these thinkers are based on the focus of analysis: Aron holds a more historicist

vein and pays attention to the inner heterogeneity of States to conceptualize international

anarchy ontologically; Waltz, with a strain inspired by economic methodology, seeks a

theoretical construction of International Relations through the interconnection between

factors and concepts, the most prominent being the concept of international anarchy.

Waltz draws it as this lack of coercive power at the supranational level, which inevitably

results in violence (Waltz, 1979). The first part of the definition does not tend to be

challenged by the other schools; the discussion tends to focus on the results that anarchy

generates internationally. In this sense, this expedition seeks to broaden the focus of

discussion to ontological assumptions, distancing itself from the evaluation of its

structural consequences.

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The constructivist approach raises essential questions for the discussion of the ontological

assumptions of international anarchy and represents a challenge to the neorealist

interpretation of anarchy. Alexander Wendt, in "International anarchy is what States

make of it", highlights the importance of the social process in the conception of anarchy,

allowing a post-social phenomenology disconnected from a relationship with the nature

of States. This is the fundamental point where this outing goes beyond Wendt's thinking

and differs from the Waltzian perspective.

Conceptualization and mobilization of the concepts of international

anarchy, state of nature, structure, and structural power

The publication of Theory of International Relations, by Kenneth Waltz, in 1979, shaped

the theoretical debate of International Relations as a discipline and established

neorealism as the dominant school of thought at the time. Its contributions highlighted

the scientific basis that provided realistic thinking interconnected with philosophical

foundations, which contributed to the strengthening of theories of International Relations

(Buzan, 1993: 1).

In this work, Waltz draws inspiration from realistic principles, but tries to avoid classic

realms, identifying himself as neorealist. Classical realism was constructed through a

literary tradition based on the theory and practice of international relations after World

War II, especially with contributions from Carr, Morgenthau, Raymond Aron, Niebuhr,

among others. These thinkers were considered as "realistic” because they predisposed

themselves to analyze the objects of study according to what they were and not what

they would like them to be (Buzan, 1993: 1-2).

Therefore, according to Buzan (1993), as to Waltz's assuming as a neorealist, the first

response of the discipline's thinkers was to seek to find the common ground between

classical realism and neorealism, highlighting the coherence between Waltz's thinking

with a realistic tradition that could go back to Hobbes and Thudides (Buzan, 1993: 2).

Three common premises stand out among these currents: the nature of international

relations is essentially conflicting; the essence of social reality is the group, rather than

the individual, particularly the State or conflictgroup; the main human motivation in

political life is power and security (Gilpin apud Keohane, 1986: 304-305).

The second answer, highlighted by Buzan (1993), was to seek the distinctions between

the two theoretical currents, especially the differences between the hermeneutic tradition

of classical realms and the structuralist basis of neorealism. Walker (1987) highlighted

the classical predisposition to focus on the historical approach in the analysis of social

reality that allows understanding the development of the practices of social actors, in

contrast to the neorrealistic predisposition to analyze social reality in a stabilized and

structured way. His statements imply that classical realists focus more on the agent,

while neorealists place their perspective on the structure. However, this argument lacks

development because it does not measure agent-structure relations (Buzan, 1993: 2).

Buzan (1993) also advances a third answer: the criticism that both classical realism and

neorealism need to extend and develop their theoretical foundations.

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The focus on literature in the 1980s was mainly related to the need to find the common

points between classical realism and neorealism, to differentiate this school of thought

from the neoliberal current or new institutionalism. Nevertheless, there were also

theorists who sought to find a point of reconciliation between the realist current and the

neoliberal current (Niou & Odershook, 1991 apud Buzan, 1993: 2-3); an example can be

found in the work of Hedley Bull (1995) on international society and international

anarchy. This led some field theorists to accuse the discipline of losing its orientation,

falling on a lack of substantive progress (Holsti, 1985: 1-2; Fergunson & Mansbach,

1988; Onuf, 1989: 8 apud Buzan, 1993: 3-4). For the reflection intended to be made,

the most relevant criticism about the loss of orientation of the discipline was the fact that

all theories developed on erroneous premises, such as international anarchy being

considered the central and fundamental principle of International Relations, when it

comes to Onuf (1989) of an empty concept (Onuf, 1989: 14).

It is necessary to clarify that although Kenneth Waltz (1979) was a pioneer in the

application of structuralism in International Relations, specifically within the Realistic

School, structuralism was a movement that dominated social sciences in the 20th century.

Structuralists insisted that social sciences must go beyond self-conceptions because

individuals are constrained by structural forces over which they have no control and may

not even know exist (Buzan, 1993: 5). Buzan (1993: 6) advances that this structuralist

approach makes it possible to break with the state of nature assumptions to ground the

behavior of agents, according to a realistic logic.

Still, for Kenneth Waltz, the structure has three dimensions: ordering principles (i.e.,

anarchy), differentiating principles, and capacity distribution (Waltz, 1979: 79-101 apud

Wendt, 1995: 134). These aspects, although they highlight the disposition of the agents,

do not allow us to understand their behavior, since this factor depends mainly on

intersubjectivity (Wendt, 1995: 134), a concept that is unrelated to waltzian theory.

Waltz's criticism is not related to the structuralist character of his theory, but to the fact

that it is characterized as anarchic and the approach to conflictgroups as an object of

study, to achieve the realistic premises mentioned and justify the logic of power of the

international system. Criticism is specifically directed at the realistic assumptions and not

at the generality of its structuralist approach. This criticism is based on the Wendtian

assumption that the structure consists of material conditions, interests, and ideas

(Wendt, 1999: 139), which with intersubjectivity imply that the structure is socially

constituted – i.e., dependent on a process of socialization.

From the assumptions presented about structuralism, there is a relationship between the

concepts of structure and state of nature that deserves its proper clarification,

understanding what is considered a process of socialization and as post-social.

The order of thought should be inspired by Waltz (1979) and Aron (1968) and, like these

thinkers, from anthropological assumptions, inspired by Rosseau, to view the state of

nature as a non-systemic state where there is no social structure, because political units

are isolated, unaware of the existence of others. Only when political units begin to

interact with each other – when the process of socialization begins – the international

system is formed (Buzan, 1993: 68-70) and the structures that characterize it emerge.

As for Waltz, the ordering principle of the structure that characterizes the international

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system is international anarchy, so this can only be constituted after interaction between

political units – that is, after the beginning of the social process, being therefore post-

social. The process of socialization based on wendtian constructivist assumptions of

international anarchy also demonstrates this.

Up to this point, the lens has not yet focused directly on the concept of international

anarchy, the object under analysis, but it is already possible to highlight some relevant

points: first, international anarchy, whether in the Waltzian approach or in the Wendtian

one, is a characteristic of the international structure; second, being characteristic of the

international structure, international anarchy cannot exist in the state of nature, having

as a necessary condition the interaction between units – i.e., the process of socialization;

third, and considering the second point, international anarchy is post-social.

There are neorealist assumptions in which the concept of state of nature arises wrongly

associated with the concept of international anarchy, being instrumentalized to explain

the origin of an anarchic arena based on the nature of the constituent units (Little, 1993:

136-138). This type of analysis mainly uses comparations with the state of Hobbesian

nature to explain the logic of self-help and the principle of safeguarding safety and self-

sufficiency of States. And yet, if the logic behind the concept of anarchy is intertwined

with the nature of political units, then if there is a transformation in the nature of the

units, it is also possible to transform the logic of anarchy (Little, 1993: 136-138).

International anarchy is defined by Waltz (2014: 130) as "the absence of a central

Monopoly of legitimate force" above political units; for Wendt (1995), anarchy is socially

constructed. However, its definition and operationalization are too limited, revealing itself

as a concept that sustains everything, but which explains little, as Onuf (1989) argued.

The lexical meaning of the word ‘anarchy’ refers to disorder, lack of rules or even lack of

a normative structure (Fernandes, 2012: 88). Paradoxically, the meaning employed in

International Relations implies the opposite.

But the absence of coercive power above States does not necessarily imply that they are

in a state of nature, as we have previously examined. Moreover, when referring to the

legitimate monopoly of force, reference is made to coercive force; nonetheless, this does

not imply that political units are not limited by structural forces, which act above them

and condition their behavior. This type of power, to exist, can only be formed at the

structural level –above States – as a characteristic of the international structure. If there

is such a force, is there still international anarchy?

Barnett & Duvall (2005) developed a taxonomy on the concept of power, based on the

conceptualization of agent-structure duality, seeking to focus on the relationship between

social context and human action. One of the typologies addressed is the conceptualization

of Structural Power, which operates in a direct, specific, and mutually constitutive way in

the social relations of agents (Barnett & Duvall, 2005: 48-49). This concept, while

recognizing the transformative capacity that agents can have, emphasizes the

conditioning role of the structure on the agency (Barnett & Duvall, 2005: 49). It is this

characterizing power of the structure that defines nature and what kind of social agents

the political units will be, establishing the intersubjective norms that define the interests

that sustain actions (Barnett & Duvall, 2005: 53).

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Therefore, the same structure that, for Waltz, is characterized by international anarchy

as an ordering principle, may also prevent the application of a structural power that

shapes the behavior of political units. Being, in lexical terms, ‘anarchy’ and ‘power’,

opposite terms, international anarchy, being characteristic of the structure – and, thus,

the result of the process of socialization (which makes it post-social) – falls on a paradox.

Moreover, understanding international anarchy because of the socialization process, so

it is a characteristic of the structure, the former institutionalized as a norm that composes

the latter. Just as structural power is channeled through the process of socialization to

limit human action, international anarchy is also channeled to (not) limit the action of

States. This institutionalization of an absence of a monopoly of legitimate force above

the States (norm of ‘non-norm’) is applied through mechanisms of structural force that

condition the actions of political units.

Analysis of realistic assumptions of international anarchy developed by

Raymond Aron and Kenneth Waltz

The classical realistic view highlights international anarchy as a unique characteristic

element of relations between States, which is the explanation of the occurrence of

conflicts between them (Aron, 1966: 724). Consequently, in a collectivity of

sovereignties, each one will be governed by its own law and the sovereigns must not

recognize another obedience. The State, being the holder of the legitimate monopoly of

violence, applies its power externally without constraints (Aron, 1968: 28).

For Aron (1968), man is naturally a social animal that reaches its full potential through

society, which allows the accumulation of knowledge and power amongst generations.

Inspired by Kant's criticism of Rosseau, Aron uses the anthropological methodology of

the latter to empirically strengthen his thinking with the example of the development of

Neolithic societies, which through the formulation of a framework of values, lifestyle, and

a way of seeing the world, began to identify their peers and "foreigners". This strangeness

and identification of difference does not necessarily imply a hostile environment between

socialites; it means that each sociality has developed conscious of its originality and its

own culture, celebrating the discovery of being different from others. Given this

presupposition, international relations are denoted from culture and, therefore, do not

derive from the natural state, and conflicts are an integral part of civilizations and a form

of relationship between States also do not come from the state of nature, but from culture

(Aron, 1968: 30).

The philosophical distinction between state of nature – "where everyone can count only

on himself" – and civil society – "where law rules, justice is served through the courts

and where the police suppress violence" (Aron, 1968: 31) – does not imply that relations

between States continue to represent a primary state of war for all (Aron, 1968: 31);

that is, of a primitive enmity that arises spontaneously in contact with difference. This

distinction is the result of historical experience: the city-states and empires were built

through violence, without a higher entity that would suppress it. Since that moment,

historical experience has shown that all international systems have been anarchic, as

they have not been subjected to sovereignty. This authority, when recognized, would

nullify the autonomy, independence, and sovereignty of States. For this reason, the order

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of relations between States is anarchic and this anarchy has been fostered by historical

experience (Aron, 1968: 30-32).

The neorealist school, which gains momentum in the figure of Kenneth Waltz, inherits

the contributions of classical realms, but is inspired by the assumption that "Between

States, the state of nature is a state of war" (Waltz, 2014: 130). This principle permits

comparison with the Hobbesian assumption of state of nature; if there is no coercive

government of international fury, which has a monopoly on violence in the Weberian

sense, it is unknown when a conflict can start. Consequently, international anarchy is the

absence of supranational rules associated with the occurrence of violence (Waltz, 2014:

130); States interact in an environment of constant insecurity, where they seek their

own gains, risking the survival of their peers (Bull, 1981: 721).

Therefore, in the anarchic sphere, the "similar units" (Waltz, 2014: 131) co-act, trying

to maintain an autonomy in a self-help logic, where each unit invests in the production

of means for its protection, understanding that each unit will serve what dictates its

interests. If in a rational calculation, one State considers that attacking another is what

suits it best, then it will do so and there will be nothing to stop it (Waltz, 1959: 232). In

the international system only force relations can, thus, result due to their anarchic

character. But not all relations between States are conflicting and a conflict is one of the

typologies of the relationship between two units.

Analysis of Wendtian constructivist assumptions of international

anarchy

Alexander Wendt's constructivist ideas assume Waltzian assumptions from a State-

centered and holistic theory, where the State, as the main actor in the international

scene, channels the behaviors of other actors and defines the structure according to its

ever-changing identity.

The focus on structure is necessary to challenge the causation powers of anarchy if the

process and institutions are not subordinate to it. If "anarchy is what States make of it"

(Wednt, 1995: 132) and if "a system of self-help and political power is socially

constructed under anarchy" (Wednt, 1995: 132), this anarchy is mutually constitutive in

an agent-structure relationship, starting from the social process of agents.

The international structure, in this sense, does not come from international anarchy since

it is insufficient to explain relations between States. The process of identity formation is

mainly concerned with self-preservation, which explains the existence of different

interests between different agents. The self-help system is a form of institution of a type

of structure that can occur under international anarchy; however, it is not unique,

depending on the interactions between States and their positions towards the others.

The logic of anarchy and power distribution depends on this cognitive variable of

institution, so the realistic characterization should be added to the intersubjectivity of a

structure of identities and interests in constant transformation (Wendt, 1995: 133-138).

The implications of this thought lead Wendt (1995) to affirm that States, before

performing interactions with one another, do not conceptualize themselves or others,

having no security interests before any interaction (Wendt, 1995: 139-140).

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The institutions of structures transform the interests and identities of the States, but

these also transform those, and both variables are changeable (Wendt, 1995: 153). The

relationship between institutions and the socialization process is explained by the

existence of an intersubjective understanding and expectations between A and B, that is,

a structure. State A has its own interests and identity, such as State B. These components

of structure, State A and State B, result in the institution. The process, in turn, consists

of five stages, with a causal relationship, the latter being causality of the former, inusing

a circular circuit. First, there is a stimulus that requires action. State A outlines the

situation in its perspective, defining itself. State A acts, creating subjective expectations

and understandings that influence both A and B. From the action of A, B withdraws its

interpretation of A's action, considering its own interests and identity, with a view to a

definition of the situation. Depending on its interpretation, B reacts to the Action of A,

contributing to intersubjectivity and allowing A to define B (Wendt, 1995: 153-155).

Figure 1 - Dynamics of the socialization process and institutions

Source: "Anarchy is what states make of it" by Alexander Wendt (1995)

Wendt explains how anarchy is socially constructed as part of the structure.

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Conclusion

For Aron (1968) and Wendt (1995), international anarchy is not a characteristic that

comes from States being in a state of nature; it results from the establishment of

relations between them. This disassociation factor between international anarchy and a

state of nature discards Waltzian assumptions of characterization of international anarchy

and highlights the process of socialization as an explanatory factor.

It is, thus, understood that the international structure is socially constructed, that

through the processes of socialization throughout the historical experience

institutionalizes international anarchy as a rule of ‘non-rule’. Conflicts do not arise

naturally between States, and they do not tend towards self-preservation due to the state

of nature. A structure defined in neorrealistic terms may occur if a behavioral pattern in

the socialization process leads to it, but this is not necessarily the case because the agent

can transform the structure.

Being there no structure before the socialization process, there can also be no

international anarchy within these conditions, as this is characteristic of that. By

accepting anarchy as "what states make of it" (Wendt, 1995: 132), it will only make

sense to interpret anarchy as the fruit of the interaction between States. This idea is not

absurd because a State, before receiving a stimulus that leads to interaction with

another, has no perception of this, being isolated. In this abstract scenario of only one

State, there is no anarchy, as there is no room for relations between actors. It is

particularly now that this State receives the stimulus to initiate interaction with another

that realizes that there is no conditioning to its action. Only in the process of socialization

it is, thus, possible to recognize international anarchy. The other, which will react to this

first initiative, will have the same realization, giving rise to a mutual recognition of

international anarchy.

So, international anarchy is internalized by actors as a rule of ‘non-rule’, becoming a

norm of shared behavior in an intersubjective way, which channeled by the process of

socialization, becomes a common norm. A common understanding of anarchy is

transferred between States, resulting in a cognitive network of institutionalization.

Anarchy, when institutionalized and recognized by agents, becomes an element of the

structure. However, State A, with its own identity and interests, is a receiver of the

intersubjective understandings shared between A and B, and international anarchy is one

of those understandings that will infiltrate the identities and definition of interests of both,

conditioning the way in which they carry out their actions. For that, anarchy exercises a

structural power – i.e., the ability of the structure to condition the action of the actor and

his interests (Barnett & Duvall, 2005: 52-55) – on States, to the extent that it

standardizes and conditions their behaviors. The concept of international anarchy is,

thus, designed as a paradox of the norm of non-norm, which is still limiting.

Overall, international anarchy can only be built ontologically through mutually

constitutive relations between agents and structure. This disconnection from the Waltzian

view empowers an exercise of abstraction, where international anarchy is

institutionalized as a norm, being applied as a structural power. It is this cover-up of a

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non-standard and this application of structural power that makes it important that the

concept of international anarchy is revisited.

Finally, it is important that the debate around the concept of anarchy decentralizes from

the different analyses of its consequences and focus on the core of the problematization:

the ontological assumptions of a concept that explains everything, but itself.

References

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59, 39–75.

Bull, H. (1995). Society and Anarchy in International Relations, in: International Theory:

Critical Investigations. London: Palgrave, 75-93.

Bull, H. (1981). Hobbes and the International Anarchy. Social Research 48, 717–738.

Buzan, B. (1993). Overview, in: The Logic of Anarchy: Neorealism to Structural Realism.

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Fergunson, Y. H., Mansbach, R. W. (1988). The Elusive Quest: Theory and International

Politics. Columbia: University of South Carolina Press.

Fernandes, A. H. (2012). A Anarquia Internacional Crítica de um Mito Realista. Relações

Internacionais 36, 87-104.

Holsti, K. J. (1985). The Dividing Discipline, in: Hegemony and Diversity in International

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Keohane, R. O. (1986). Neorealism and its Critics. NY: Columbia University Press.

Little, R. (1993). The Structure and Logic of Anarchy, in: The Logic of Anarchy:

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Niou, E. M. S., Odershook, P. G. (1991). Realism versus Neoliberalism: A Formulation.

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Onuf, N. (1989). World of Our Making: Rules and Rule in Social Theory and International

Relations. Columbia: University of South Carolina Press.

Walker, R. J. B. (1987). Realism, Change and International Political Theory. International

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NY, pp. 130–141.

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How to cite this note

Egoreichenko, Alexandra Borisovna (2022). Preservation of European Cultural Heritage:

experience and modern trends. In Janus.net, e-journal of international relations. Vol. 13, Nº

1, May-October 2022. Consulted [online] in date pf last visit, https://doi.org/10.26619/1647-

7251.13.1.02

OBSERVARE

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240

NOTES

ONLINE DISPUTE RESOLUTION - FANTASY OR REALITY?

OTABEK PIRMATOV

pirmatov.otabek.89@inbox.ru

Acting Assistant Professor of Tashkent State University of Law (Uzbekistan).

Doctor of Philosophy in Law.

I. Introduction

This article discusses the issues of online dispute resolution, which allows to expand the

use of judicial remedies, innovations in traditional methods of dispute resolution, the

application of technology. Online dispute resolution is one of the ways to resolve disputes

using Internet technologies. Dispute resolution online is used to resolve problematic

situations of any complexity. At the same time, it is characterized by high cost-

effectiveness and a wide range of functions (data transfer, coordination of meeting

schedules, e-mail delivery of agreed decisions, speed).

The Internet has served as a tool that has revolutionized many areas of life in the 21st

century. It performs many functions and lays the foundation for many industries to

operate as a common source of information, means of communication and global trading

platform.

The internet also has an impact on legislation. Its rapid expansion has led to many

positive developments, such as the digitization of certain areas of law. New methods of

communication have improved many areas of law, including the modernization of out-of-

court dispute resolution processes, such as the creation of online dispute resolution

systems.

The emergence of online conflict resolution began in the United States. Disputes are still

being considered online at the online dispute bureau at the Center for Information

Technology and Conflict Resolution at the University of Massachusetts in the United

States (Wahab, 2012).

The COVID-19 pandemic crisis has forced courts to take an innovative and creative

approach in real time, including measures taken today to introduce modern information

technology to courts or address shortcomings in them. Virtual court hearings, ODR and

other digital litigations are examples.

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Otabek Pirmatov

241

The first appearance of online dispute resolution was done email. This method of dispute

resolution is done online. Once the application was accepted for resolution, the other

party responded to the application. If no agreement is reached, the parties are directed

to the negotiation stage. This was done through an electronic means of communication

- e-mail. Their relationship was mediated by a mediator or arbitrator.

The number of entities providing ODR services in the EU has been increasing in recent

years. Examples include ombudsmen in Austria and Germany, and online mediation

systems in Italy and the United Kingdom.

II. Literature review

According to the Dutch scholar and judge Dori Reiling, online dispute resolution means

the use of information and communication technologies in resolving disputes between

parties. The technology can also be used in mediation and arbitration courts. It can also

be seen as an alternative form of conflict resolution. ODR can also bolster the

improvement of traditional methods of conflict resolution through innovative online

technologies. In the past, ODR was mainly used for e-commerce disputes, but today

more online communication is being used as a form of ODR (Reiling, 2017).

According to the American scholar Amy Schmits, the ODR offers great opportunity for

expanding access to court remedies or achieving justice. In the United States and abroad,

ODR has developed mainly in e-commerce companies such as eBay and Alibaba, most

state courts are still in the traditional process, providing practical services to increase the

efficiency of the use of information technology in the courts and expand its capabilities

(Schmitz.

According to Indian researcher Chitranjali Negi, online dispute resolution (ODR) is a form

of conflict resolution that uses technology to facilitate the resolution of disputes between

the parties.

Online dispute resolution may involve the resolution of disputes in each of the

negotiation, mediation, or arbitration courts, or in three alternative disputes.

ODR includes the following legal traditions:

1) Legal confidence: the ability of the parties to choose an arbitrator or arbitrator.

2) Use of Justice: Everyone involved in a dispute has the right to use ODR.

ODR will also create a mechanism that provides timely solutions and rational means of

efficiency.

ODR allows for a civilized (peaceful) resolution of disputes between citizens.

The ODR also allows the parties to apply to state courts

Chitranjali Negi. Concept online dispute resolution in India. Electronic copy available at:

http://ssrn.com/abstract=2596267.

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242

According to Mimoza Sadushi, resolving disputes online is, in simple terms, resolving

disputes over the Internet. In Canada, the United States, and European countries, ODRs

are organized in various forms and through the establishment of forums.

The term ODR means automated processes. Sometimes ODRs are fully automated and

even if they are only conducted online, some also involve the human factor.

Online dispute resolution allows you to resolve disputes quickly and easily.

Automated negotiations in the ODR also include processes such as neutral assessment

of disputes, mediation or conciliation.

Online dispute resolution will be an alternative form of mediation or arbitration courts

(Sadushi, 2017).

It is clear from the opinion of the above scholars that ODR can be an alternative type of

dispute resolution such as mediation, arbitration courts.

However, some scholars believe that it is possible to introduce procedures related to ODR

processes in state courts, especially civil courts.

According to the American scholar Lise Embley, virtual trials and ODRs are opening up

new opportunities in the courts, which not only ensure that courts operate during a

pandemic, but also help settle many problems

According to the Ergul Serpil, one of the key issues is to prevent an increase in the

number of applications that need to be considered in court and to see the delayed trials

as soon as the threat of the COVID-19 virus passes and people have the opportunity to

gather in public. These issues can be resolved through ODR and virtual court hearings.

Judges and court staff may also conduct ODR and virtual court hearings from the

courthouse to continue adjourned proceedings. This allows the parties to participate in

the trial remotely (Serpil, 2020).

III. Discussion and analysis

According to the above scholars and judges, disputes can also be resolved online in civil

courts.

Hence, online dispute resolution can also be applied to civil litigation.

Online Dispute Resolution (ODR) is an online dispute resolution that uses alternative

dispute resolution methods. Dispute resolution online involves disputes that have been

partially or fully resolved over the Internet.

Online dispute resolution is done using existing platforms that allow access to the

Internet. Like other alternative ways of resolving disputes is to reach an agreement

between the parties.

Online dispute resolution is an alternative form of dispute resolution that allows the use

of the Internet. Like other alternative methods of resolving disputes online, the parties

Lise Embley. Judicial Perspectives on ODR and Other Virtual Court Processes. JTC Quick Response Bulletin:

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Otabek Pirmatov

243

are required to have a third party (mediator, arbitrator) in the process of reaching an

agreement.

The state pays great attention to the use of digital technology and new technologies in

the management and resolution of large-scale complex litigation in civil courts. The new

technology provides the opportunity to conduct court proceedings cheap and short time,

as well as to resolve civil cases, including the admission of parties, consideration of

claims, payment of state duties, court hearings and the announcement of decisions.

Reforming the civil justice system is a crucial way to improve the system and ensure that

the public meets the expected results. The process of increasing the application of digital

technologies in all spheres of life is underway. Digital technologies play an important role

in achieving justice in civil litigation, improving efficiency and results, and reducing costs.

Dispute resolution online is done on a dedicated digital platform and covers the process

from the initiation of the claim to the resolution of the dispute. An online conflict

resolution platform can work based on human input data or artificial intelligence

algorithms.

From traditional dispute resolution with online dispute resolution:

1) not to enter into face-to-face negotiations with the parties;

2) automatic recording of negotiations and storage of information about all disputes;

3) the intelligence of the machine can increase efficiency.

The effectiveness of the judiciary can be achieved by seeing disputes less important and

smaller in size by ODR.

Alternative methods of dispute resolution, including the relationship of the opposing

parties in their online form, play a key role. The voluntary nature of online dispute

resolution also makes it easier for the supporting parties or the person (arbitrator) to

decide on the disputed issues. ODR is very important for parties that are separated by a

very long distance.

The ODR encourages the use of modern technology in defending their rights in the

community and reduces legal barriers.

The ODR can allow the parties to resolve disputes early, which frees the court from

resolving complex issues such as filing a lawsuit, participation. The ODR can simplify

litigation and expand the ways in which it participates.

Dispute resolution online can be a way for lawyers to familiarize their clients with civil

disputes without leaving the office or home.

It would be advisable to resolve disputes online or virtually in our civil courts.

In foreign countries, court proceedings can be conducted by videoconferencing on special

platforms or public platforms. These proceedings are done by Zoom in SAR, Uganda,

Microsoft teams in New Zealand and through a special court platform in China. The

platforms used by the above countries can also be used by the public and the parties are

very comfortable.

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244

It would be advisable for civil courts to use platforms that are accessible to all when video

proceedings are conducted by videoconference.

It would have prevented citizens from spending money and time going to court to

participate in court hearings via videoconferencing.

Beijing, Guangzhou and Huangzhou Internet Courts established today in the PRC

, e-

Estonia platform in Estonia, online courts through India’s platform

, Virtual court hearings

are held in countries such as the Netherlands.

The preamble to the Beijing Internet Court's Special Instruction on Conducting Internet

Trials on the Tianping Chain Platform states that Beijing Internet Court hearings will be

held on the Tianping Chain platform, which is based on blockchain technology.

IV. Conclusion

The statement of claim submitted and the documents attached to it if the procedural

legislation does not meet the requirements, a notice of correction of the statement of

claim shall be sent in due time and the time of receipt of the statement of claim shall be

recalculated from the day following the day of In our country, many sites operate under

the domain name Uz. Under these domains we can create special sites for ODRs.

If the parties and other participants in the litigation use the court platform, they will be

verified by biometric identification.

In Beijing, Guangzhou and Huangzhou Internet courts set up in the PRC, the parties are

verified by biometric identification.

India's platform

number can be accessed by dialing the number.

We propose to include in our civil procedure legislation the rules for the procedure for

receiving claims:

The online court will accept the statement of claim and the documents attached to it by

the plaintiff online, and within 10 days after the receipt of the statement of claim, the

online court will take the following actions: those who meet the requirements of

procedural law register the claims and send a notice receipt of the statement of claim. If

the plaintiff does not make corrections to the statement of claim in accordance with the

requirements of procedural law within the prescribed period, the court shall issue a ruling

on the return of the statement of claim.

In the online court system, claims are completed on an electronic platform. Therefore,

the number of rulings by the courts on the return of claims is reduced.

The inclusion of the above proposals in the civil procedure legislation would pave the way

for the stable operation of civil courts in the event of a pandemic and the protection of

the rights and interests of our citizens.

Beijing Internet Court http://tpl.bjinternetcourt.gov.cn.

http://vcourts.gov.in.

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245

References

Embley, Lise (s.d.). Judicial Perspectives on ODR and Other Virtual Court Processes. JTC

Quick Response Bulletin: 4.

Negi, Chitranjali (s.d.). Concept online dispute resolution in India. Electronic copy

available at: http://ssrn.com/abstract=2596267

Reiling, Dory (2017). Beyond Court Digitalization With Online Dispute Resolution.

International Journal For Court Administration | Vol. 8 No. 2, May. ISSN 2156-7964

.URL: http://www.iacajournal.org.

Sadushi, Mimoza (2017). The theory and practice of dispute resolution in the digital age.

Global Journal of Politics and Law Research. Vol.5, No.7, pp. 57- 69, December.

Schmitz, Amy J. (2019). Expanding Access to Remedies through E-Court Initiatives. 67

Buffalo Law Review, 89 (2019): 89.

Serpil, Ergun (2020). Coronavirus and the Courts, Webinar II. National Center for State

Courts. NCSC.org/pandemic. 15 April.

Wahab, M.S. Abdel; Katsh, E.; Rainey, D. (2012). Online dispute resolution: Theory and

practice. A treatise on technology and dispute resolution. Hague: Eleven International

Publishing.

How to cite this note

Pirmatov, Otabek (2022). Online dispute resolution - fantasy or reality?. In Janus.net, e-

journal of international relations. Vol. 13, Nº 1, May-October 2022. Consulted [online] in date

pf last visit, https://doi.org/10.26619/1647-7251.13.1.03

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CRITICAL REVIEW

Akyüz, Emrah (2021). Nuclear Power and Human Rights in Japan:

The Fallout of Fukushima. London: Lexington Books. ISBN:

9781793637819, 270 pp

EMRAH ATAR

emrah.atar@erdogan.edu.tr

PhD in Development Policy and Management at Global Development Institute at The University of

Manchester, which focuses on the impact of the refugee crisis on public service delivery in

hosting countries such as Turkey. He is Assistant Professor at the Department of Political Science

and Public Administration, Recep Tayyip Erdogan University (Turkey). His focus topics and

research interests to further escalating his prospects on politics, governance, migration, policy

development and human resource management, urbanization policies. Emrah is also an interview

editor of the Political Reflection Magazine, and Commissioning Editor of the E-International

Relations.

Since the first half of the 20th century, technological innovations have transformed war

methods and created prolifications of nuclear powers worldwide. The two world wars and

the subsequent Cold War period cause a peak in this race. These developments, however,

caused many tragedies; among those was the nuclear power plant accident in Fukushima

in 2011. 'Nuclear Power and Human Rights in Japan: The Fallout of Fukushima', by Dr

Emrah Akyüz from Lexington Books, attempted to examine the event from the axis of

human rights. This book consists of seven main sections with each chapter's introduction

and conclusion, which helps the reader to formulate a general assessment.

The first part of the book maps the nuclear accidents experienced worldwide and offers

information about the effects of nuclear accidents, with a specific focus on Ontario,

Chernobyl and Fukushima, trying s to understand this process with a seven-stage

pyramid (pp. 2-5). In the continuation of this section, the details of Fukushima, which is

the book's focal point, are presented (pp. 5-7). In the continuation of Fukushima, he

details the Environmental Human Rights Approach to The Fukushima Nuclear Accident

and brings up that Fukushima has substantial risks in terms of environment and human

health, and states the following: "Undoubtedly, the environment and public health are

the two core areas to which Fukushima will continue to pose a risk, and is a likely

explanation for why the literature focuses on these two aspects when discussing the

Texto traduzido por Cláudia Tavares.

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Fallout of Fukushima. London: Lexington Books. ISBN: 9781793637819, 270 pp

Emrah Atar

247

accident" (p. 8). In this chapter, the author also emphasizes human rights in terms of

environment and health.

In the second part of the book, the conceptual framework: environmental human rights

is discussed. The interrelation between human rights and ecological rights is presented

(p. 20). When referring to environmental rights, pointing out the meetings held in

Stockholm and Rio also helps us to build a detailed conceptual analysis —emphasizing

that human rights are divided into three inclusive internationally accepted categories;

socio-economic, civil-political and solidarity human rights (pp. 21-28).

The third part analyzes Japan's Nuclear Energy and Human Rights Policy related to

environmental human rights. Considering Japan's energy policies before and after

Fukushima, discussing how effective/ineffective the country's human rights policies are

in this direction (pp. 71-74). Emphasizing that the Fukushima disaster brought along

major reforms in Japan's energy policy, the work informs us about these reforms (pp.

80-90). While explaining the reforms, the author draws attention to Safety as a Key

Principle, The Decrease in Dependency on Nuclear Energy, Renewable Energy, and

Transparency.

Through thematic analysis of interviews with Fukushima inhabitants, Chapter 4 examines

the impacts and hazards connected with the FNA on/to human rights, particularly the

right to life, health, and property. In this direction, official reports and past work on the

hazards and impact of the accident on the rights to life, health, and property are

discussed in this chapter (pp. 98-104). Then, thematic analysis of human rights issues

relating to radioactive pollution in Fukushima has been talked about. In this section,

people's experiences are given in line with the data obtained from the fieldwork. Basic

results such as Living with Fear, Violation of the Right to Health, Mental Health Problems,

Physical Health Problems, Social Isolation, Loneliness, Risks to Health Associated with

Water Contamination, Risks to Health Associated with Food Supply Contamination,

Violation of Right to Property set forth and discussed here (pp. 107-121). This information

provides imperative contributions to the literature about the difficulties experienced by

the region's people during this process and the processes they need to overcome in

dealing with these difficulties.

The study 'Fukushima Residents' Experiences of Procedural Rights' concerning Japan's

Energy Policy looked at how and to what extent Fukushima residents used procedural

rights in response to the Fukushima nuclear disaster and Japan's nuclear energy policy

(pp. 136-174). As the author indicates "there is no comprehensive study to date that has

investigated the Fukushima residents' experiences of PHRs (including the right to

information, the right to participation, and the right to access to justice) in the Fukushima

matter" (p. 134). This study is one of the few studies examining strengthens this

argument by giving more detailed information. The author also put some sub-themes to

provide better insight on this issue: No Attempt to Access to the Information Before the

Accident; Passive access to the information related to nuclear energy after the 2011

accident; Access to the Information; Reliability of Information; Timely sharing of

Information related to the accident; Active access to the information related to nuclear

energy after the 2011 accident; Complexity of Information; Public Participation in

Decision Making Process; A Lack of Interest in Nuclear Energy and no Invitation before

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Fallout of Fukushima. London: Lexington Books. ISBN: 9781793637819, 270 pp

Emrah Atar

248

the Accident; Public Participation in Decision Making Process Tokenism; Referendum

Demand; People's Interest in Public Participation after the Fukushima Accident; Access

to the Court; Judicial Redress with Respect to the Impact of Environmental Decisions;

Judicial Review with Respect to Environmental Decision Making; Barriers to Access to the

Court and Socially Fair Results.

Chapter six provides a detailed discussion to interpret the book's principal findings

regarding past research on the FNA and EHRs. It is divided into three sections: first, it

discusses the extent to which the FNA represents a human rights problem in terms of its

environmental impact, which is the central research question addressed in the empirical

chapters; second, it examines the relationship between substantive and procedural rights

in Fukushima, and critically evaluates the challenges and opportunities of an energy

policy that recognizes public participation in decision-making, which is propagate in the

empirical chapters; and third, it examines the relationship between substantive and

procedural rights in Fukushima. Finally, some of the study's limitations are discussed and

suggested future research fields. The main findings of the study were discussed here,

and a detailed analysis was obtained. In this direction, the following topics are

emphasized: The Relationship Between Human Rights, the Environment, and Nuclear

Energy in Japan; Cross-Cutting Issues between Japan's Human Rights and Nuclear

Energy Policy; Human Rights Violations Raised by the Fukushima Nuclear Accident;

Reinterpretation of Human Rights Versus Right to the Environment; The Linkage Between

Substantive and Procedural Rights; The Linkages Between Violation of the Right to

Information and the Enjoyment of the Right to Health; The Lack of the Right to Public

Participation and the Enjoyment of the Right to Health (pp. 174-205).

This work, which I had the opportunity to evaluate in detail above, appears as a candidate

to make significant contributions in its field. In particular, it is observed that this highly

accessible guide is up-to-date and makes a noteworthy contribution to the literature in

terms of bringing environmental issues and human rights issues together. Dr Akyüz

reveals that there is a positive interaction between ecological problems and human rights,

especially from a Japanese perspective. While demonstrating this, he not only remained

under the monopoly of Japan but also added a broad perspective by addressing similar

problems that had been experienced before. The academic world, which constantly points

to ancient events and accidents in the analysis of environmental issues, will now have

the opportunity to understand better the issues of the region's people in the face of much

more recent negativities with such accidents. Of course, this work, which was revealed

only with the example of Fukushima, will not be enough on its own. However, this work

would definitely encourage especially young academics to examine more current events

regarding environmental issues.

The method in which the study was presented, the language used, and the detailed

presentation of the findings can be seen as one of the most important advantages. It is

also noteworthy that an empirical method was used in the study, and those policy

recommendations were given as a result of the findings. The results obtained in work

bring a different perspective to the current understanding of the relationship between

human rights and the environment. In addition, a discussion of Japan's contribution to

nuclear energy policy and management and the theoretical, methodological and empirical

study of nuclear accidents will also be valuable to scientists working in this field. Overall,

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

Vol. 13, Nº. 1 (May-October 2022), pp. 246-249

Critical Review

Critival Review of Akyüz, Emrah (2021). Nuclear Power and Human Rights in Japan: The

Fallout of Fukushima. London: Lexington Books. ISBN: 9781793637819, 270 pp

Emrah Atar

249

the book is well-written, and most readers will find it both interesting and educational,

in which Dr Akyüz examines and clarifies a case about a nuclear disaster. He also analyses

the topic of challenges and challengers excellently. Therefore, I strongly recommend that

this book, which offers a different perspective on Fukushima's environmental risk

analysis, ought to be read by people from all platforms.

How to cite this critical review

Atar, Emrah (2022). Recensão crítica de Akyüz, Emrah (2021). Nuclear Power and

Human Rights in Japan: The Fallout of Fukushima. London: Lexington Books. ISBN:

9781793637819, 270 pp. In Janus.net, e-journal of international relations. Vol. 13, Nº

1, May-October 2022. Consulted [online] on date of the last visit,

https://doi.org/10.26619/1647-7251.13.01.1

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CRITICAL REVIEW

Innerarity, Daniel (2019). Política para Perplexos. Lisboa: Porto

Editora, ISBN 978-972-0-45-03232-4, 214 pp.

JOÃO CARLOS SOUSA

joao.carlos.sousa@iscte-iul.pt

Ph.D. student in Communication Science at ISCTE-Instituto Universitário de Lisboa (Portugal) and

holder of a grant from the Foundation for Science and Technology (FCT). He has a Master Degree

in Sociology: exclusions and social policies (University of Beira Interior) and a Bachelor Degree in

Sociology. He was a Research Fellow (2010-2015) in the projects Citizens' Agenda: Journalism

and Civic Participation in Portuguese Media and Public and Private Mobile Communications,

conducted at LabCom, Faculty of Arts and Letters of the University of Beira Interior. Since June

2016, he has been a researcher at OberCom.

Daniel Innerarity in “Politics for the Perplexed” continues the reflection begun in the

aftermath of the Great Recession (Innerarity, 2016) on the current challenges facing

contemporary democracies, examining the ethical and cultural foundations for the

possibility of a new social contract. This social contract is to be based on trust between

citizens, but also between them and the various institutions that support liberal

democracy. To this end, we are proposed to replace a majority democracy with a

negotiation democracy, continuing an “old” theoretical opportunity of the author

(Innerarity, 2012). As a desideratum of contemporary societies, negotiation democracy

corresponds, in the first place, to an objective and correct diagnosis of the pathologies

and dysfunctions of today's western democracies.

For those who read the 214 pages that make up the work, it is clear that the Basque

author is endowed with a unique observational acumen of reality, which allows him to

translate into simple and clear text, accessible to non-specialist readers, but eager to

gain knowledge of community life, a whole reflection about the current political situation.

The reading of the work under analysis is relevant not only for specialists in political

communication or political science, but also for those who are interested, who question

the representations that are constructed in everyday life in the context of co-presence

(for example, interaction in a café or family context), but above all those with whom we

contact on a daily basis, through the different traditional and/or digital media. The work

is structured in six parts, each of which divided into several chapters.

I The End of Certainties - The perplexed condition results from the limitless opening of

the horizons of the possible. Faced with structural changes, there are those who have

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251

absolute certainties and end up being fanatical. On the other hand, the so-called

“politically correct” gains public expression. Uncertainty spreads through the various

domains of social activity. Politics in times of perplexity is expressed in: predictive

incapacity of polls that monitor political behaviour; the primacy of subjectivity in the

analysis of political phenomena; and outdated concepts in the face of current

requirements. In this context, there are two forms of reaction on the part of political

actors: on the one hand, the conservative appeal to authenticity and non-intervention in

reality (conformists); on the other hand, the radical critique that results in a

misunderstanding of reality, as exemplified by populist proposals all over the world. The

author argues that the contemporary left should focus on redistributing and mitigating

the inequities created by the process of economic and capitalist globalization. The right

focuses on state action in combating crime, giving priority to security issues.

Both the left and the traditional right bequeath their incapacity and inertia, in the political

domain, to the unregulated role of financial globalization. Thus, the right assumes

globalization and the ineffectiveness of state action as an “indisputable reality”. The left,

for its part, assuming a clear stance of resistance to the process of economic

globalization, insists, according to Innerarity, on not understanding the emerging guiding

frameworks of contemporary political action.

In the public sphere, the “old” left and right are discursively distinguished. The right

resorts to facts and data with the guise of objectivity, tending to limit the aspirational

horizons of the debate itself. On the other hand, inside the left, appeals to imagination

and criticism succeed one another at a dizzying pace. In an increasingly spectacularized

public space, in which the status of citizen has progressively been replaced by that of

consumer, journalism finds itself facing competition from an increasing number of

specialists participating in the public debate.

II Emotional Deregulation – Innerarity begins the second part of the essay by postulating

that emotions have increasingly guided activity in spheres as diverse as the economy,

war and, more markedly, politics. Social structures where states of anxiety, anger and

trust are expressed constitute the axes of social transformation. In this circumstantial

framework, the media play a pivotal role. In the foreground, the author places the

traditional media as definers of the agenda that emanates emotional states. Downstream,

there are social media that foster the existence of emotional bubbles around particular

cases. In fact, the actors who differentiate themselves and succeed in the public space

have multiplied due to their discursive aggressiveness and inconsistent sincerity: “those

who are more offensive gain more attention in the public sphere” (2019: 66). Innerarity

(2019: 66-67) asks “(...) what if the media were enhancing and feeding democratic

impotence, that is, inflaming our expectations, emphasizing collective incapacities,

amplifying our fears and paying greater attention to provocateurs?”

III Politics in an Area of Poor Signalling – The author starts with a reflection on populism

based on the conceptual distinction made by Chantal Mouffe between populism of

democratic radicalization and authoritarian populism, associating them with the political

left and right, respectively. However, she claims that this distinction does not consider

democratic plurality. Both populisms exclude more than they integrate. After all, all

populisms adopt a rhetoric based on exclusion: people vs elite; them vs us; caste vs

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people etc.. As populism is the most striking contemporary political expression, the

traditional left and right reiterate their anti-populism. For the left, populism is still

unattractive insofar as it is insensitive to the inequalities and inequities produced in social

and political processes that evoke the reconstruction of social structures; on the other

hand, the stability-obsessed right see the reform drive at the institutional level of the

populists as a threat to the desired stability. Brexit, as a political phenomenon, is the

typical political event. For the author, it results from a “flight forward” on the part of the

British and, in particular, their political elites, dispensing with any method of

representative democracy, assuming plebiscitary contours. Thus, this process must be

seen as a double paradox: the first is that, contrary to what is claimed by Brexit

supporters, the United Kingdom will not be completely outside the European Union, as is

the case with European Union legislation; the second manifests itself in the growing

tension between the plebiscitary impulses and the procedures of representative

democracy. Direct democracy translated into the holding of a referendum has the power

to pierce the citizen's sense of empowerment, although in the end they are always

dependent on the enforcement and execution by the various institutions of democracy.

IV Democracy in the Age of Trump – The last US presidential elections were mainly guided

by the civic republicanism vs liberal-conservative elitism axis. The first had in Trump and

Sanders its main representatives, while the second had its most representative forces in

the Republican and Democratic parties. In the case of Trump, by focusing on proprietary

capitalism in the face of financial globalization, he reaffirms the exhaustion of the

multicultural paradigm, albeit without coherence and objectivity, explaining the

discontent of the people. He combines communication and telegenic simplism with this

strategy, taking advantage of the decay of civic culture itself. On the one hand, this new

cleavage is marked by classical capitalism and, on the other hand, by creative financial

capitalism. In this axis, the ideas of an essentially national industrial development are

confronted and their main interlocutor is the nation-state. At the antipodes stands the

financialized economy of global markets whose epicentres are Silicon Valley and Wall

Street. The target of the populist movement is above all the multiculturalism ingrained

in economic globalization. The author proposes a new conception of justice that should

include not only redistribution but also recognition.

V Establishing Intelligent Systems - In recent decades, politics has seen its function

radically altered. This metamorphosis is comparable only to that which took place four

centuries ago when the nation-state emerged. The transformations occurred at structural

level, that is, at the level of global coordinates: globalization of economic activity,

emergence of the knowledge society, individualization of lifestyles and the westernization

of societies. The implications contribute to three major types of political dysfunctions:

first, ineffectiveness of political action within the scope of what would be expected;

second, inoperability in the face of unprecedented problems and new formats; third,

inability to identify new problems. We are facing a deficit of political intelligence that is

daily confronted with the versatility and dynamism of other spheres: technological

euphoria vs civic illiteracy; technological innovation vs social redundancy; critical

scientific and economic culture vs anachronistic political space. At the end of the line, the

author argues that we must improve the systems that defend us against people

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Critical Review

Critical Review of Innerarity, Daniel (2019). Política para Perplexos. Lisboa: Porto Editora,

ISBN 978-972-0-45-03232-4, 214 pp

João Carlos Sousa

253

themselves, against errors produced deliberately or inadvertently, because in the end

“fear itself is an instinct that defends us from ourselves” (2019: 191).

VI What Awaits Us – Diagnosis, as a public intellectual's job, is a responsibility of this

agent in relation to his fellow citizens and other surrounding community. Even without

being able to predict the future, a good diagnosis is essential to reasonably face the

current uncertainty and unpredictability. Three leads with prospective potential: first,

increasing uncertainty; second, intense volatility of social and political patterns; third,

the need to improve the concepts that guide the reflection and definition of strategies.

The work ends in a tone of optimism, although one should not whitewash the colossal

challenges posed to societies in general and to institutions and political actors in

particular. Indeed, optimism to the detriment of pessimism as a basic rule of social

reflection is a cornerstone in the assembly of the complex sociopolitical puzzle. There are

two good reasons to forego pessimism and give priority to optimism: the narrative of

human history may not go downhill; the conclusion is always the enemy of reflection and

prospective interpolation of the social and the political spheres.

Notes to keep and expand on

In the work that supports this reflection, the author assumes, even implicitly, the role of

public intellectual. As such, he proposes a new cosmopolitan social contract based on

principles of tolerance, dialogue between different states and between different nations

within the states themselves. Although throughout the work there are some signs of

criticism of the steps taken by western democracies and in particular their hesitant

responses to the different populist movements, Innerarity at the end denotes moderate

optimism, specifically in response to the greatest political challenge of the first decades

of the 21st century. – the resurgence of populisms and nationalisms that give it shelter

with an ambitious cosmopolitan proposal that acts as an intercultural and political

dialogue.

Both the left and the traditional right bequeath their incapacity in the political field, having

globalization as an argumentative background. In the particular case of the right,

resorting to “indisputable reality” has as its most paradigmatic case the “ordoliberal

consensus” that has permeated some institutions of the European Union and Member

States, in addition to the patent domain in the public and media spheres in the European

continent.

The question Innerarity raises in the second part about the role of the media today impels

us to consider the following aspects: first, it involves addressing all the transformations

of traditional media in recent decades, such as commodification (Cardoso, 2016); the

second point deals with the relationship between these media and social media, in

particular Facebook and Twitter; the third point is based on the strong disintermediation

of mass communication (Bruns & Humphreys, 2007); a fourth issue and as a

consequence of communication disintermediation, political actors, especially populist

ones, have taken advantage of the establishment of direct links, with a vast audience

and followers, discarding journalistic mediation. This may, in fact, explain the fact that

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

Vol. 13, Nº. 1 (May-October 2022), pp. 250-254

Critical Review

Critical Review of Innerarity, Daniel (2019). Política para Perplexos. Lisboa: Porto Editora,

ISBN 978-972-0-45-03232-4, 214 pp

João Carlos Sousa

254

traditional media are a frequent target of the discursive wrath of populist leaders and

movements in a wide range of democracies.

It is in this line of reasoning that Innerarity tells us about “emotional dysregulation”. The

state of emotional anger is expressed in the growing anxiety and distrust that permeate

daily life, becoming vectors of social and political change. The fact that an author, such

as Innerarity, points out these transformations associated with emotions in the public

sphere and particularly in politics, is an important indication that this will be an emerging

field of study and that will consolidate itself in the coming decades, particularly in the

fields of electoral behaviour and political network communication.

References

Bruns, A. & Humphreys, S. (2007). Building collaborative capacities in learners: The

M/cyclopedia project revisited. Proceedings of the Conference on Object-Oriented

Programming Systems, Languages, and Applications, OOPSLA, pp.1–10.

Cardoso, G., Santos, S. and Telo, D. (2016). Jornalismo em Tempo de Crise. Lisbon:

Mundos Sociais.

Innerarity, D. (2011). O Futuro e os seus Inimigos. Lisbon: Editorial Teorema.

Innerarity, D. (2016). A Política em Tempos de indignação. Lisbon: Dom Quixote.

Innerarity, D. (2019). Política para Perplexos. Lisbon: Porto Editora.

How to cite this critical review

Sousa, João Carlos (2022). Critical Review of Innerarity, Daniel (2019). Política para

Perplexos. Lisboa: Porto Editora, ISBN 978-972-0-45-03232-4, 214 pp. In Janus.net, e-

journal of international relations. Vol. 13, Nº 1, May-October 2022. Consulted [online]

on date of last visit, https://doi.org/10.26619/1647-7251.13.01.2