CISD Yearbook of Global Studies

Volume 6 August 2019

CISD Yearbook of Global Studies Volume 6 August

2019

The Nullification of the 2017 Presidential Election in Kenya – Advancing the Rule of Law? A Legal and Political Analysis Liza Micke 2 Africa-EU Relations: A Partnership of Equals? Angelique Umugwaneza 39 Grey Zones of Law and War: Assessing the Applicability of the Principle of Distinction to Cyber-Warfare Isabella Steel 68 Reassessing Success and Failure of Social Movements: the 2014 Hong Kong Umbrella Movement Florence Woodrow 115 Most Things Are North: Norwegian identity in foreign policy discourse and cooperation with Russia in the Artic Linn Vardheim 155 Changing Perceptions and Ideology: the Role of Epistemic Communities of Museum Professionals in Cultural Diplomacy Eloisa Romani 191

The Nullification of the 2017 Presidential Election in Kenya – Advancing the Rule of Law? A Legal and Political Analysis Liza Micke Abstract: This dissertation analyses whether Raila Odinga v IEBC 2017, the judgement with which the Supreme Court nullified the result of the 2017 Presidential Election in Kenya, advanced the rule of law in the country. Raila Odinga v IEBC 2017 was the second judgement on a petition challenging the result of a Presidential Election – Raila Odinga v IEBC 2013, with which the result of the 2013 Presidential Election was upheld, beingthe first – since the promulgation of the Constitution, 2010. It was also the second opportunity for the judiciary to implement the constitutional dispensation established under the Constitution, 2010, thereby, advancing the rule of law in the country, after it had failed to do so in Raila Odinga v IEBC 2013. This dissertation critically analyses Raila Odinga v IEBC 2017 by comparing it to Raila Odinga v IEBC 2013. It argues that Raila Odinga v IEBC 2017 initially indicated an advancement of the rule of law in Kenya, that such advancement, however, was reversed when the Supreme Court returned to Raila Odinga v IEBC 2013 in its judgement upholding the result of the 2017 repeat Presidential Election in John Mwau v IEBC 2017. It further argues that the political reactions to Raila Odinga v IEBC 2017 reveal a lack of respect for the rule of law. Indeed, the political reactions indicate interests vested in undermining the continued consolidation of the constitution, which, overall, leads to the conclusion that the nullification of the 2017 Kenyan Presidential Election did not advance the rule of law in the country.

Introduction

Presidential Elections were held in Kenya on 8th August 2017. According to the result released incumbent president Uhuru Kenyatta was re-elected with 54% of the vote. His opponent Raila Odinga refused to accept the results and filed a petition challenging the result of the election in the Supreme Court, which came to the conclusion that: “The Presidential Election held on 8th August 2017 [in Kenya] was not conducted in accordance with the Constitution [of the Republic of Kenya] and the applicable law rendering the declared result invalid, null and void; […] An Order is hereby issued directing the [Independent Electoral and Boundaries Commission (IEBC)] to organize and conduct a fresh Presidential Election in strict conformity with the Constitution and the applicable election laws within 60 days of the determination of 1st September 2017 under Article 140(3) of the Constitution [of the Republic of Kenya].” (Raila Odinga & another v Independent Electoral and Boundaries Commission & 2 others 2017; hereinafter: Raila Odinga v IEBC 2017, 405) These are the words of the Supreme Court of the Republic of Kenya, as read by Chief Justice (CJ) David Maraga, nullifying the result of the 2017 Presidential Election and the re-election of incumbent President Uhuru Kenyatta. Raila Odinga v IEBC 2017 was the second judgement on a petition challenging the result of a Presidential Election – Raila Odinga & 5 others v Independent Electoral and Boundaries Commission & 3 others 2013; hereinafter: Raila Odinga v IEBC 2013, with which the result of the 2013 Presidential Election was upheld, being the first – since the promulgation of the Constitution of Kenya, 2010 (hereinafter: the Constitution, 2010). It was also the second opportunity for the judiciary to implement the transformative constitutional dispensation established under the Constitution, 2010, thereby advancing the rule of law in the country, after it had failed to do so in Raila Odinga v IEBC 2013. The Constitution, 2010, aspires to end the centralisation of power in the presidency which was experienced in Kenya under the Constitution of Kenya, 1963 (hereinafter: the Constitution, 1963). With the centralisation of power in the president and the correlative erosion of the independence of the judiciary, no one could ensure the rule of law. The Constitution, 2010, aiming to ensure the rule of law, establishes the separation of power and an independent judiciary that controls presidential power. The aspiration to implement the transformative constitutional dispensation established under the Constitution, 2010, was given weight in Raila Odinga v IEBC 2017. Against this background, the nullification of the 2017 Presidential Election was celebrated as an advancement for the rule of law in the country (Binyon, The Times 2017; Maina, The Japan Times 2017; Opalo, The Washington Post 2017) in Kenya, Africa and around the world. For the first time in African history, an African court nullified the re-election of an incumbent president (Freytas-Tamura, New York Times 2017; Dörries, Süddeutsche Zeitung 2017; Bröll, Frankfurter Allgemeine Zeitung 2017; Putsch, Die Welt 2017). Reflecting on the celebration, the aim of this dissertation is to analyse whether the nullification of the 2017 Presidential Election in Kenya indeed advanced the rule of law in the country. I argue that Raila Odinga v IEBC 2017 initially indicated an

3 advancement of the rule of law in Kenya. While – in contrast to the Raila Odinga v IEBC 2013 reasoning – the reasoning in Raila Odinga v IEBC 2017 shows fidelity to the Constitution and its purposes and principles, thus indicating an advancement of the rule of law, such advancement was reversed when the Supreme Court returned to Raila Odinga v IEBC 2013 in its judgement upholding the result of the repeat 26th October 2017 Presidential Election (John Harun Mwau & 2 others v Independent Electoral and Boundaries Commission & 2 others 2017, hereinafter: John Mwau v IEBC 2017). I further argue that the political reactions to the nullification of the 2017 Presidential Election reveal a lack of respect for the rule of law, the separation of power and the independence of the judiciary. Indeed, the political reactions indicate interests vested in undermining the continued consolidation of the constitution, which, overall, leads to the conclusion that the nullification of the 2017 Kenyan Presidential Election did not advance the rule of law in the country. This dissertation is divided into three chapters. The first chapter (I.) seeks to introduce the theoretical framework. In its first part (1.) it defines and conceptualizes the rule of law and identifies the separation of power and the independence of the judiciary as essential elements thereof. In its second part (2.) and third part (3.) it discusses the concepts of separation of powers and judicial independence and their interrelation with the rule of law. The second chapter (II.) seeks to apply the theoretical framework by analysing the reality of the rule of law in Kenya within its historical context. It outlines in its first part (1.) how under the Constitution, 1963, power was centralised in the president and how this resulted in the correlative erosion of the separation of power and the independence of the judiciary. With neither the separation of power nor an independent judiciary, no one could ensure the rule of law in the country. In the second part (2.) it outlines how the aspiration to end the centralisation of power in the president was given normative weight by the Constitution, 2010, which, aiming to ensure the rule of law, establishes the separation of power and an independent judiciary that controls presidential power. The chapter engages in this discourse on the premise of the framework developed in the first chapter. The historical context outlined in the second chapter provides the essential guide for the third chapter (III.), which asks whether the reality of the rule of law in Kenya advanced through the nullification of the 2017 Presidential Election. In its first part (1.) it analyses the judgement with which the 2017 Presidential Election was nullified and in its second part (2.) the political reactions to it with regard to the question whether the nullification advanced the rule of law in Kenya. The legal and political analysis is the focus of this dissertation. Methodology

The first and the second chapter rely on the collection of data through critically analysed secondary scholarly sources from books, book chapters and academic journal articles. In order to collect data for the third chapter, this dissertation relies on an integrated approach of critically analysed primary and secondary sources from constitutions, legislation and cases as well as books, book chapters, academic journal articles and newspaper articles. Additionally, it relies on collected primary data in the form of individual expert interviews. The collection of primary data in the form of interviews was chosen as a data collection method to complement the existing secondary source data.

The strength of the collection of primary data in the form of interviews is the close engagement of the experts with the rule of law in Kenya and their ability to elaborate with insight on the events surrounding the nullification of the 2017 Presidential Election and on whether such events advanced the rule of law in the country. However, the data collected represents insights of the experts only. A thorough review of the existing secondary sources helped to identify a framework for the questions for the interviews which complements the secondary source data. The interview framework focused on the nullification of the 2017 Presidential Election in Kenya and whether such events advanced the rule of law in the country. The aim of the interviews was not only to collect data that complements the the existing secondary source data, but also to access the entire expertise of the interviewee. Thus, while the interview framework focused on the nullification of the 2017 Presidential Election in Kenya and whether such events advanced the rule of law in the country, the semi- structured interview approach allowed the interviewer to access the entire expertise of the interviewee: it allowed the interviewer to ask questions outside of the interview framework and to follow topical trajectories while allowing the interviewee to introduce topical trajectories. The interview framework is attached as Appendix A. Interviews were conducted with four interviewees, all of them legal professionals and representatives of non-governmental organisations (NGO’s) who are experts on the rule of law in Kenya: Prof. Yash Pal Ghai, former Professor of constitutional law and former Chair of the Constitution of Kenya Review Commission (CKRC), which led the process of constitutional review and reform from 2001 until 2004. He is also one of the fathers of the Constitution, 2010, and founder and director of Katiba Institute, which is committed to promote and protect the Constitution, 2010, and its purposes and principles including the rule of law. Jill Cottrell Ghai, former Professor of constitutional law and co- founder and director of Katiba Institute. Waikwa Wanyoike, Executive Director of Katiba Institute and Advocate at the High Court of Kenya. He practices constitutional law and appears regularly at the High Court, Court of Appeal and the Supreme Court of Kenya. Samwel Mohochi, Executive Director of the International Commission of Jurists (ICJ) Kenya and Advocate at the High Court of Kenya. Interviewees were selected on the basis of their engagement with the rule of law in Kenya and their ability to elaborate with insight on the events surrounding the nullification of the 2017 Presidential Election in the country. A list of the interviewees with names, dates of interviews and location of interviews is attached as Appendix B. Initial interviewees were chosen having been identified as qualified individuals who might be able to provide introductions to subsequent interviewees – a snowball sampling technique. I acknowledge the limitations of conducting interviews with representatives of NGO’s but chose such approach over conducting interviews with government officials for two reasons: First, the nullification of the 2017 Presidential Election has caused tensions between the executive branch and the judicial branch of the government. Interviews with representatives from either branch are risky for the interviewee. The degree of risk may entail public criticism, damage of reputation, loss of employment, public persecution in media and in courts, retribution by superiors, bodily harm or even loss of life. Both, representatives of the executive and the judicial branch of the government are therefore reluctant to speak about the nullification. Second, because of the tensions between the executive branch and the judicial branch of the government, interviews with representatives from either branch are risky not only for the interviewee but also for the interviewer. It is for these two reasons that I chose to conduct interviews with

5 representatives of NGO’s who are independent from either branch of government. Nonetheless, measures were taken to reduce the remaining risk: An information sheet was handed to the interviewees explaining the background of the research project, the reasons for invitation to participate in the research project and the nature of participation. Interviewees were informed that participation is completely consent based and that they may refuse to participate in the research project. Written consent was sought from each interviewee. The information sheet and consent form are attached as Appendix C. I further explained to the interviewees their rights to confidentiality. The interviewees consented that I may use their names and quotes from the interviews. It was also explained that the information from the interviews will only be used for the purpose of the research project and that audio recordings and transcripts will be deleted upon completion of the project. The research project went through the School of Oriental and African Studies (SOAS), University of London Risk Assessment and Ethical Clearance Procedure and ethical clearance of the research was obtained prior to conducting the interviews. The ethical clearance letter is attached as Appendix D. I. The Rule of Law

To analyse whether the nullification of the 2017 Presidential Election advanced the rule of law in the country, it is imperative to define and conceptualize the rule of law and its relation to other constitutional concepts. This chapter seeks to introduce the theoretical framework. It defines and conceptualizes the rule of law and identifies the separation of power and the independence of the judiciary as essential elements thereof. It discusses the concepts of separation of powers and judicial independence and their essentiality to achieve the rule of law. It aims to answer the following questions: How can the Rule of law be defined and conceptualized? In how far is the concept of the Rule of law interrelated with other constitutional concepts? The concept of Separation of powers? Independence of the Judiciary? Part one (1.) defines and conceptualizes the rule of law and identifies the separation of power and the independence of the judiciary as essential elements thereof. In part two (2.) the concept of separation of power is defined and conceptualized and its interrelation with the rule of law is discussed. The concept of judicial independence is discussed in part three (3.). Conclusively, a definition of the rule of law within the context of these interrelated constitutional concepts is developed which is used as a theoretical and analytical framework for the assessment of the rule of law in Kenya in the second chapter. 1. Definition and Conceptualization of the Rule of Law

The rule of law is a complex and contested concept (Bufford 2007, 16; Ellis 2010, 192; Fallon 1997, 1; Lautenbach 2013, 18; Meyerson 2004, 1; Oseko 2011, 21; Stein 2009, 296; Stewart 2004, 189; Tamanaha 2004, 3; Waldron 2002, 137). Some scholars believe it to be an “essentially contested concept” (Fallon 1997, 7; Tamanaha 2004, 3; Waldron 2002, 137), that is a concept contested to its core (Tamanaha 2004, 3), which is why it is imperative to review the literature

6 surrounding the rule of law to develop a definition and conceptualization of the rule of law which is used as an analytical framework in the subsequent chapter. Various attempts haven been made by scholars and theorists to define and conceptualize the rule of law; however, no agreed framework exists (Tamanaha 2004, 3). Some scholars trace the heritage of the rule of law back to Plato and Aristotle (Tamanaha 2004, 8) and to “Roman jurists; medieval natural law thinkers; Enlightenment philosophers such as Hobbes, Locke, Rousseau, Montesquieu and the American founders; German philosophers Kant, Hegel and the nineteenth century advocates of the Rechtsstaat” (Peerenboom 2005, 810). The theorists most commonly associated with modern formulations of the rule of law are A.V. Dicey, F.A. Hayek and J. Raz (Oseko 2011, 53). The most reputed modern formulation of the rule of law is attributed to Dicey, who, in his Introduction to the Study of the Law of the Constitution (1885) defined the rule of law in terms of three meanings (Ellis 2010, 193; Meyerson 2004, 1; Stein 2009, 296; Tamanaha 2004, 63): According to Dicey, the rule of law, first, means that no man is above the law. “No man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law” (Dicey [1885] 1992, 110). There must be law and a breach of that law for a man to be punishable. “A man may be punished for a breach of law, but he can be punished for nothing else” (Dicey [1885] 1992, 120). He postulates an antithesis between the rule of law and arbitrariness which he defines as “a system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint” (Dicey [1885] 1992, 110) – the exercise of arbitrary or discretionary power of constraint by the government. Arbitrariness and the rule of law, according to Dicey, are antithetical (Tamanaha 2004, 64). Second, the rule of law means not only that “no man is above the law, but (what is a different thing) that every man whatever his rank or condition, is subject to the law” (Dicey [1885] 1992, 114). This second meaning entails, the idea of “equal subjection” (Dicey [1885] 1992, 120) to the law or equality before the law (Stein 2009, 296). This, according to Dicey, holds true also for the government and its officials, who “are as responsible for any act which the law does not authorise as is any private or unofficial person” (Dicey [1885] 1992, 114). The third meaning, Dicey formulated as an attribute of the British system. He contrasts the British common law system in which the general principles of the constitution are derived from “judicial decisions” (Dicey [1885] 1992, 115) with foreign civil law systems in which the constitution is derived from a legislative act rather than from legal decisions (Dicey [1885] 1992, 116). Dicey considered the general principles of the British constitution a more secure basis for the rule of law than foreign constitutions (Tamanaha 2004, 64). Importantly, however, he identifies that the rule of law is enshrined in the general principles of the constitution – that it is a constitutional concept – in common as well as in civil law systems, even if he deems those to be a less secure basis for the rule of law. These three meanings in terms of which Dicey defined the rule of law inform other modern formulations of the rule of law (Hamwoy 1971, 350), such as the formulations by Hayek and Raz. Hayek in The Road to Serfdom (1944) defines the rule of law as meaning that no man is above the law and “that [even] government in all its actions is bound by the

rules” (Hayek [1944] 2007, 112). Hayek, in agreement with Dicey, postulates an antithesis between the rule of law and arbitrariness (Hamwoy 1971, 351; Tamanaha 2004, 67). Governmental discretion or arbitrariness is to be reduced “as much as possible” (Hayek [1944] 2007, 112) which requires a “permanent framework of laws” (Hayek [1944] 2007, 113) set out in advance in abstract terms. “When we obey laws, in the sense of general abstract rules […], we are not subject to another man’s will” (Hayek 1978, 153). He adds, that, for this, the separation of power is essential: “It is because the [legislative] does not know the particular cases to which his rules will apply, and it is because the [judiciary] who applies them has no choice in drawing the conclusions that follow from the existing body of rules and the particular facts of the case, the it can be said that laws and not men rule” (Hayek 1978, 153). Equality before the law to Hayek, too, is an essential element of the rule of law (Hayek [1944] 2007, 117; Hayek 1955, 35) which he defines as “the requirement that the laws must be equally applicable to all” (Hayek 1955, 47). Every man is subject to the law including the government and its officials. Notably, for Hayek “it is more important that there should be a rule [equally] applied always without exceptions than what this rule is” (Hayek [1944] 2007, 117). To Hayek, the content of the law is less important than its equal application. Whereas largely in agreement with Dicey (Hamwoy 1971, 351), Hayek’s formulation seems to be inconsistent with common law systems, in which law is determined through judicial decisions or case law (Tamanaha 2004, 69). According to Hayek “there is some inherent conflict between a [common law] system of case law and the rule of law. Since under case law the judge constantly creates law” (Hayek 1955, 19) which is inconsistent with Hayek’s requirement of a permanent framework of laws, and as such disagrees with Dicey’s formulation. Another reputed modern formulation of the rule of law is the definition developed by Raz in The Authority of the Law (1977). He contends that Hayek’s formulation of the rule of law is “one of the clearest and most powerful formulations” (Raz [1977] 1979, 210). His formulation, thus, largely agrees with Dicey’s and Hayek’s formulations of the rule of law. According to Raz, “’the rule of law’ means literally what it says: The rule of the law” (Raz [1977] 1979, 212). He defines the rule of law as “obedience to the law” (Raz [1977] 1979, 212) meaning that everyone, including the government and its officials, should obey the law (Raz [1977] 1979, 213). While employing a different terminology, Raz agrees with Dicey and Hayek that no man should be above the law and that even the government should be bound by the law. He, too, contrasts the rule of law with arbitrariness (Raz [1977] 1979, 219). However, “if the law is to be obeyed it must be capable of guiding the behaviour of its subjects” (Raz [1977] 1979, 214). For this to be achieved he identifies different essential elements i.e. the separation of power including – alongside an independent executive and legislative – an independent judiciary (Raz [1977] 1979, 217). In agreement with Hayek, Raz contends that the content of the law is of little importance. To him, the rule of law must not be confused with democracy and human rights: “A non-democratic legal system, based on the denial of human rights, on extensive poverty, on racial segregation, sexual inequalities, and racial persecution may, in principle, conform to the requirements of the rule of law

better than any of the legal systems of the more enlightened Western democracies. This does not mean that it will be better than those Western democracies. It will be an immeasurably worse legal system, but it will excel in one respect: in its conformity to the rule of law” (Raz [1977] 1979, 211). Such formal definitions of the rule of law, that deem the content of the law of little importance, have been criticised by scholars that defend a substantive definition of the rule of law (Bingham 2007; Bingham 2010). Substantive definitions of the rule of law agree on the essential elements of the formal definitions, but concerning the content of the law, add on content requirements (such as democracy and the protection of human rights) (Craig 1997, 467; Tamanaha 2004, 102), such as the definition by T. Bingham, who in agreement with Dicey, Hayek and Raz defines the rule of law as meaning “that all persons and authorities within the state, whether public or private, should be bound by […] laws” (Bingham 2007, 69; Bingham 2010, 8) which “should apply equally to all” (Bingham 2007, 73; Bingham 2010, 55) but to which he adds the content requirement that the law must protect human rights (Bingham 2007, 75; Bingham 2010, 66). Notably, however, scholars defending a formal definition of the rule of law such as Dicey, Hayek and Raz and scholars defending a substantive definition of the rule of law such as Bingham, agree on essential elements of the rule of law (Tamanaha 2004, 114). The first element stipulates that no man is above the law and that even the government is bound by the law (Dicey [1885] 1992, 110; Hayek [1944] 2007, 112; Raz [1977] 1979, 212; Bingham 2007, 69; Bingham 2010, 8). Dicey’s, Hayek’s, Raz’s and Bingham’s definitions of the rule of law are informed by a fear of arbitrariness (Lautenbach 2013, 19; Meyerson 2004, 6) – the exercise of arbitrary or discretionary power by the government. Their formulations of the rule of law presupposes the existence of governmental power which must be controlled (Lautenbach 2013, 20) in order to avoid arbitrariness. Their formulations furthermore presuppose that governmental power can be controlled through law (Lautenbach 2013, 20). To control government power they therefore demand the authority of the law – that no man is above the law and that every man is bound by the law including the government and its officials (Dicey [1885] 1992, 110; Hayek [1944] 2007, 112; Raz [1977] 1979, 212; Bingham 2007, 69; Bingham 2010, 8). The second element stipulates that every man is subject to the law. It entails the idea of “equal subjection” (Dicey [1885] 1992, 120) to the law or equality before the law (Hayek [1944] 2007, 117; Bingham 2007, 73; Bingham 2010, 55) which holds true also for the government and its officials. These elements are included in any definition or conceptualization of the rule of law (Lautenbach 2013, 19). These elements constitute the core of the rule of law concept. The assertion by some scholars who believe the rule of law to be an “essentially contested concept” (Tamanaha 2004, 3; Waldron 2002, 137), a concept contested to its core (Tamanaha 2004, 3) is, therefore, not tenable. However, these elements are not ends in itself. Aside from these essential elements, the rule of law embraces other elements to ensure them. There seems to be scholarly agreement that the concept of the rule of law is closely interrelated with other constitutional concepts, especially the separation of power (Corstens 2017, 2; Hayek 1978, 153; Meyerson 2004, 1; Lautenbach 2013, 49; O’Connor 2003, 2; Raz [1977] 1979, 217; Stein 2009, 300) and the independence of the judiciary (Boies 2006, 59; Corstens 2017, 17-18; Lautenbach 2013, 22, 53; O’Connor 2003,

1; Oseko 2011, 35; Raz [1977] 1979, 217; Stein 2009, 300). For a more comprehensive conceptualization, it is, thus, imperative to inquire into the concepts of the separation of power and the independence of the judiciary in terms of their definitions and conceptualizations. 2. The Separation of Power

For the rule of law to be achieved, scholars agree, there must be separation of power between the branches of government (Corstens 2017, 2; Hayek 1978, 153; Meyerson 2004, 1; Lautenbach 2013, 49; O’Connor 2003, 2; Raz [1977] 1979, 217; Stein 2009, 300). Montesquieu formulated the concept of the separation of power in De l’esprit des lois (The Spirit of the Laws) (1978): “In every government there are three sorts of power: the legislative; […] the judiciary power, and the […] executive power of the state” (Montesquieu [1748] 1989, 156) which must be separated to ensure the authority of the law (Lautenbach 2013, 49). Under the separation of power the power to enact the law is vested in the legislative, whereas the power to execute the law is vested in the executive and the power to adjudicate the law is vested in the judiciary. The separation of the legislative power from the executive power, and the executive power from the judiciary circumvents the centralisation of power (O’Connor 2003, 2). If power were centralised – i.e. if the same branch of government were vested with the power to enact, execute and adjudicate the law – the authority of the law would be threatened: “There would be an end to every thing, were the same [branch of government] […] to exercise those three powers” (Montesquieu [1748] 1989, 157). Under the separation of power, the executive, the legislative and the judiciary act to check each other and balance each other’s power to prevent the arbitrary abuse of power (Lautenbach 2013, 49; Meyerson 2004, 1; O’Connor 2003, 2; Stein 2009, 300). “Experience shows us that every man invested with power is apt to abuse it, and to carry his authority as far as it would go […]. To prevent this abuse, it is necessary from the nature of things that one power should be a check on another” (Montesquieu [1748] 1989, 155) – so called system of checks and balances (Corstens 2017, 15; Oseko 2011, 45). 3. The Independence of the Judiciary

Central to Montesquieu’s concept of the separation of power is – alongside an independent executive and an independent legislative – an independent judiciary (Tamanaha 2004, 52). Judicial independence describes the idea that the judiciary should be free from improper influence from the other branches of government (O’Connor 2003, 2). Judges should have the freedom to decide cases in accordance with the law and the facts before them and free from improper influence from the executive (Corstens 2017, 86; O’Connor 2003, 3; Oseko 2011, 27). The idea is to prevent the executive from imposing its powers upon the judiciary (Shklar 1987, 5; Tamanaha 2004, 52). Scholars agree on the importance of an independent judiciary for the achievement of the rule of law (Boies 2006, 59; Corstens 2017, 17-18; Lautenbach 2013, 22, 53; O’Connor 2003, 1; Oseko 2011, 35; Raz [1977] 1979, 217; Stein 2009, 300). An independent judiciary, which decides cases in accordance with the law and the facts before it and free from improper influence, ensures the authority of the law – that

no man is above the law and every man is bound by the law, including the government and its officials (O’Connor 2003, 4). For government officials to be bound by the law there must be an independent judiciary that controls the power of the executive through judicial review (Lautenbach 2013, 42; Meyerson 2004, 2): “Judicial review is […] the means by which executive action is prevented from exceeding the powers and functions assigned to the executive by law” (Meyerson 2004, 2). Thereby, the judiciary ensures the authority of the law and prevents the arbitrary abuse of power (Lautenbach 2013, 50; Meyerson 2004, 2). When the judiciary is independent it ensures that those in power are bound by the law and it prevents that those in power abuse their power (Lautenbach 2013, 51). A judiciary which is not independent enough to bind the other branches of government to the law seriously compromises the rule of law (Oseko 2011, 35). An independent judiciary, further, ensures that everyone is equal before the law in that it ensures that the law is equally applied in equal cases (Lautenbach 2013, 43), which, as was outlined above, must be understood as an essential element of the rule of law. Overall, the separation of power and the independence of the judiciary are essential elements to ensure and achieve the rule of law. How, then, can the rule of law be defined and conceptualized within the context of these interrelated concepts? Emerging from the foregoing, the rule of law can be defined in terms of four elements: First, that no man is above the law and every man is bound by the law including the government and its officials and, second, that every man is subject to the law, conditions which are ensured through the third element, the separation of power between the executive, the legislative and the judiciary and the fourth element, an independent judiciary. This definition encapsulates the rule of law within the context of its interrelation with the separation of power and the independence of the judiciary. It is used as an analytical framework for the assessment of the reality of the rule of law in Kenya in the subsequent chapter. II. The Rule of Law in Kenya

This chapter seeks to apply the analytical framework developed in the previous chapter to assess the reality of the rule of law in Kenya. The reality of the rule of law is to be understood within its historical context: “Following the law is a matter of custom, of habit, of widely shared understandings […]. That habit and widely shared understanding cannot be achieved without a struggle; it is a long, gradual development based on experience.” (Corstens 2017, 3) Which is why this chapter assesses the reality of the rule of in Kenya within its historical context. Overall, it aims to answer the following questions: What was / is the reality of the Rule of law in Kenya? What were the weaknesses with regards to the rule of law and interrelated concepts of the Constitution, 1963? What are the strengths of the Constitution, 2010?

The rule of law is a constitutional concept. It is in the general principles of the constitution that the concept is enshrined, which is why it is the provisions of the constitution that are analysed in regard to the rule of law. Since independence Kenya has had two Constitutions – the Constitution, 1963 and the Constitution, 2010 – which are analysed in regard to their faithfulness to the rule of law in this chapter, which is divided into two parts. Part one (1.) outlines how under the Constitution, 1963, power was centralised in the president and how this resulted in the correlative erosion of the separation of power and the independence of the judiciary. With neither the separation of power and the independence of the judiciary, no one could ensure the rule of law. Part two (2.) outlines how the aspiration to end the centralisation of power in the president was given normative weight by the Constitution, 2010, which, aiming to ensure the rule of law, establishes the separation of power and an independent judiciary. The chapter engages on this discourse on the premise of the analytical framework developed in the first chapter which is used to test the weaknesses and strengths of the two Constitutions. 1. The Constitution of Kenya, 1963

The Berlin Conference of 1895, during which the European powers partitioned Africa, marked the beginning of colonial rule in Africa and of British colonial rule in Kenya, a rule which was to endure until 12 December 1963 (Ghai and McAuslan 1970, 3). Little needs to be said of the colonial state: The framework of government in the colonial state was not established based on the rule of law (Fombad, in: Fombad 2016, 14). It was a dictatorship imposed by violence, maintained by violence, characterised by arbitrariness under an all-powerful and unaccountable executive (Oseko 2011, 102). There was no separation of power and no check to the powers of the executive which was not accountable to anyone, not even the judiciary (Ghai, in: Murunga 2014, 121). An independent judiciary was not a characteristic of the colonial state. With an executive effectively above the law, the rule of law was seriously compromised (Ghai, in: Murunga 2014, 121; Oseko 2011, 102) (for an extensive evaluation of the framework of government in the colonial state see: Ghai and McAuslan 1970). With regard to equality before the law scholars state that “the rule of law has always existed in Kenya in so far as everybody is subject to some law. But it has not been the same law in all cases; equality before the law has not always existed” (Singh 1965, 914), with which they refer to the laws that existed in the colonial state which negated the idea of equal subjection to the law, an essential element of the rule of law (Oseko 2011, 102). On 12 December 1963 Kenya became independent from British colonial rule under the Kenya Independence Order, 1963 and the Constitution, 1963. The Constitution, 1963, sought to establish a framework of government based on the rule of law and the separation of power (Ghai and Cottrell Ghai 2011, 8; Juma, in: Murungi 2010, 220; Kibwana, in: Kibwana, Kimondo and Gathii 1996, 5; Lumumba, in: Lumumba and Mbondenyi 2011, 13; Muigai 2001, 90; Oseko 2011, 103). It contained provisions providing for the separation of power between the three branches of government – the legislative (Chapter IV of the Constitution, 1963), the executive (Chapter V of the Constitution, 1963) and the judiciary (Chapter X of the Constitution, 1963) – with each of the branches checking the powers of the others

12 to prevent the arbitrary abuse of power (Ghai and Cottrell Ghai 2011, 8-9). However, since 1963, there have been thirty-eight (38) amendments to the Constitution, 1963, altering its provisions and progressively repealing its framework (Juma, in: Murungi 2010, 220; Kibwana, in: Kibwana, Kimondo and Gathii 1996, 5; Ochieng, in: Fombad 2016, 287) (for an extensive evaluation of the amendments see: Lumumba, in: Lumumba and Mbondenyi 2011). The first amendment to the Constitution, 1963, by virtue of the Constitution of Kenya (Amendment) Act, 1964, as from 12 December 1964 declared Kenya a Republic (Sec. 4 of the Constitution of Kenya (Amendment) Act, 1964) which, thereby, ceased to form part of the Queen’s Dominion. Under the Constitution, 1963, as part of the Queen’s Dominion, the executive power was vested in the Queen and exercised on behalf of the Queen by the Governor-General as Head of State (Art. 72(1) of the Constitution, 1963) and the Prime Minister, appointed by the Governor-General, as head of Government (Art. 75(1) of the Constitution, 1963) (Muigai 2001, 92). The Constitution of Kenya (Amendment) Act, 1964, revoked the remaining powers of the Queen, abolished the post of Governor-General and established the post of President as Head of State and Government who was to be the person who immediately before 12 December 1964 held the office of Prime Minister (Sec. 8 of the Constitution of Kenya (Amendment) Act, 1964). The President was vested with extensive executive power (elaborating on the extensive power vested in the president: Lumumba, in: Lumumba and Mbondenyi 2011, 24- 25) which put Kenya on its path to a complete centralisation of power in the president (Murunga, Okello and Sjörgen, in: Murunga et al. 2014, 4; Ochieng, in: Fombad 2016, 288). Under the amended Constitution, 1963, President Jomo Kenyatta continued to centralise power in the presidency and to subordinate the power of the other branches of government (Ghai and Cottrell Ghai 2011, 10-11; Mutua 2001, 97) through constitutional amendments. Constitutional amendments after 1964 have been described as: “aimed at […] increased executive power and diminution of the capacity and stature of institutions meant to be checks and balances to that power, such as the judiciary [and the legislative]” (Kimondo, in: Kibwana, Kimondo and Gathii 1996, 39-40). The centralisation of power in the presidency especially resulted in the subordination of the power of the judiciary (Harrington and Manji 2015, 177). While the Constitution, 1963, contained provisions providing for the separation of power between the three branches of government, the express vesting of power was only mentioned in regard to the legislative power as vested in Parliament (Chapter IV, Art. 66 of the Constitution, 1963) and the executive power as vested in the Queen (Chapter V, Art. 72(1) of the Constitution, 1963). Judicial power was not expressly vested in the judiciary which resulted in the subordination of the power of the judiciary and in the erosion of judicial independence (Oseko 2011, 132): The second constitutional amendment act amended the chapter on the judiciary (Lumumba, in: Lumumba and Mbondenyi 2011, 26). The President was vested with the power to appoint the Chief Justice (Lumumba, in: Lumumba and Mbondenyi 2011, 26) and other judges and magistrates (Oseko 2011, 152) without consulting the Judicial Service Commission (JSC), which was established to

13 regulate matters such as judicial appointments (Muigai 2001, 96). This demonstrates the erosion of judicial independence: “Where political power plays a significant role in the appointment of judges, there is a risk that judicial candidates, as well as sitting judges, will feel compelled to respond to the demands of the powerful, rather than act as a check on government” (Oseko 2011, 143). The amendment eroded the independence of the judiciary (Akech and Kameri- Mbote 2012, 14). Under the influence of the government the judiciary was unable to act as a check on the government. It was unable to ensure the authority of the law and to prevent the arbitrary abuse of power. Arbitrariness was real in the absence of checks and balances on the government (Oseko 2011, 139), thus, seriously compromising the rule of law (Mutua 2001, 99; Ochieng, in: Fombad 2016, 288). Upon Jomo Kenyatta’s death, Daniel Arap Moi succeeded him as president in 1978 and perfected the centralisation of power in the presidency created by his predecessor Kenyatta and continued to subordinate the power of the other branches of government, especially of the judiciary (Murunga, Okello and Sjörgen, in: Murunga et al. 2014, 4-5). All checks to the power of the executive were removed (Ghai, in: Murunga et al. 2014, 123). This part has demonstrated that, while the Constitution, 1963, sought to establish a framework of government based on the rule of law and the separation of power, constitutional amendments altering the provisions of the Constitution, 1963, progressively repealed this framework (Juma, in: Murungi 2010, 220; Kibwana, in: Kibwana, Kimondo and Gathii 1996, 5; Mosota, in: Lumumba and Mbondenyi 2011, 47; Mutua 2001, 99; Ochieng, in: Fombad 2016, 287) to the extent that some scholars speak of the “mutilation of the independence constitution” (Ghai, in: Murunga 2014, 122). The amended Constitution, 1963, provided for the complete centralisation of power in the presidency (Ghai and Cottrell Ghai 2011, 10; Juma, in: Murungi 2010, 222). But it not only vested extensive executive power in the President but also correlatively eroded the separation of power and the independence of the judiciary (Ghai and Cottrell Ghai 2011, 10-11). With neither the separation of power nor an independent judiciary, no one could ensure the rule of law in the country. “The rule of law could not survive the […] powers of the president” (Ghai, in: Murunga et al. 2014, 124). 2. The Constitution of Kenya, 2010

In the 1960’s, 70’s and 80’s Kenya experienced a complete centralisation of power in the presidency. However, from the 1990’s on an aspiration to end the centralisation of power and to advance the rule of law in the country emerged (Barkan 1993, 90; Lumumba, in: Lumumba and Mbondenyi 2011, 36-37; Musila, in: Kaguongo and Musila 2009, 22) which could only be ensured through comprehensive constitutional reform so as to curtail the power of the president through the separation of power and a system of checks and balances (Harrington and Manji 2015, 177). “A long and difficult struggle [began]” (Harrington and Manji 2015, 177) – the details of which would go beyond the scope of this dissertation – that eventually led to the promulgation of the Constitution, 2010, passed and enacted by way of a popular public vote in a referendum on 4th August 2010 in

which 67% of the population approved the document (Mbondenyi, in: Lumumba and Mbondenyi 2011, 7). The Constitution, 2010, was promulgated on 27th August 2010. This part analyses the provisions of the Constitution, 2010, with regard to their faithfulness to the rule of law. The analysis is mirrored against the weaknesses identified in the provisions of the amended Constitution, 1963, in the previous part. The rule of law emerged as a national value of the Constitution, 2010 (Mosota, in: Lumumba and Mbondenyi 2011, 55). It is recognized as such in the Preamble (The Kenyan Constitution 2010, Preamble) and as a national value and principle of governance in Art. 10(2)(a) of the Constitution, 2010. However, the rule of law can only be ensured through the separation of power between the executive, the legislative and the judiciary with a system of checks and balances: “At the core of the quest for a new constitution in Kenya was the need to restructure the government in accordance with the concept of separation of powers and this included re-configuring the relationship between the three arms of government. There was a need to ensure sufficient checks and balances with government so that each arm of government functioned independently, but at the same time […] with appropriate oversight by the other arms” (Ochieng, in: Fombad 2016, 286). It is important to note that nowhere in the Constitution, 2010, are the words ‘separation of power’ expressly mentioned, which may create the impression that the separation of power is not an important concept of the Constitution, 2010. However, the words ‘separation of power’ are rarely expressly mentioned in constitutions (Oseko 2011, 205): “This principle may not be written in the lines of the constitution, but it is written between the lines. It derives implicitly from the language of the constitution. It is a natural outgrowth of the structure of the Constitution which distinguishes between the three branches of government and discusses each of them in a separate chapter.” (Barak 2004, 45) The Constitution, 2010, in Art. 1(3) provides for a separation of power by distinguishing between the three branches of government and discussing each of them in a separate chapter: The Legislature in Chapter 8, the Executive in Chapter 9 and the Judiciary in Chapter 10. Legislative Power in Chapter 8 is vested in the Parliament (Art. 94 of the Constitution, 2010). The Constitution, 2010, provides: “The legislative authority of the Republic is derived from the people and, at the national level, is vested in and exercised by Parliament” (Art. 94(1) of the Constitution, 2010). Executive Power in Chapter 9 is vested in the President, the Deputy President and the rest of the cabinet under the leadership of the president (Art. 130(1) of the Constitution, 2010). This is a departure from the amended Constitution, 1963, under which executive power was vested in the President and no one else. Furthermore, the extensive executive powers of the president under the amended Constitution, 1963, were reduced under the Constitution, 2010 (see Ghai and

Cottrell Ghai 2011, 97-98 for a table comparing the powers of the president under the Constitution, 1963 and the Constitution, 2010). Under the Constitution, 1963, the express vesting of power was only mentioned in regard to the legislative power as vested in Parliament (Chapter IV, Art. 66 of the Constitution, 1963) and the executive power as vested in the Queen (Chapter V, Art. 72(1) of the Constitution, 1963). Judicial power was not expressly vested in the judiciary. Under the Constitution, 2010, judicial power is now expressly vested the judiciary: “Judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under this Constitution” (Art. 159(1) of the Constitution, 2010). It is the Judiciary so defined under Art. 159(1) of the Constitution, 2010 which is vested with judicial power and in addition is constitutionally guaranteed independence: “In the exercise of judicial authority, the Judiciary shall be subject only to the Constitution and the law and shall not be subject to the control or direction of any person or authority” (Art. 160 of the Constitution, 2010). This is a departure and improvement from the Constitution, 1963 (Majanja, in: Odote and Musumba 2016, 24; Mbondenyi and Ambani 2012, 82; Ochieng, in: Fombad 2016, 294; Ongoya, in: Lumumba and Mbondenyi 2011, 193). The Constitution, 2010, also departed from the amended Constitution, 1963, and improved on the provisions relating to the appointment of judges. Art. 166(1)(a) of the Constitution, 2010, provides that the President shall “appoint the Chief Justice and the Deputy Chief Justice in accordance with the recommendations of the Judicial Service Commission”. This is an improvement and departure from the amended Constitution, 1963, which provided that the Chief Justice shall be appointed by the President (Mbondenyi and Ambani 2012, 82). The Constitution, 2010, thus, establishes the separation of powers between the legislative, the executive and the judiciary and – alongside an independent executive and legislative – an independent judiciary. However, the separation of power concept also requires a system of checks and balances to be in place between the branches of government. The question arises whether a system of checks and balances is established under the Constitution, 2010. “An independent judiciary, the essential guardian of the rule of law, is the linchpin of the [system] of checks and balances through which the separation of power is assured” (Ochieng, in: Fombad 2016, 294). In recognition of this the Constitution, 2010, envisages that executive power is to be exercised in accordance with the Constitution (Art. 1(1) and Art. 129 of the Constitution, 2010) and that the courts control the power of the executive and to review acts of the government and its officials through judicial review to ensure that they act in accordance with the constitution and the law (Ochieng, in: Fombad 2016, 295). Thus, the judiciary adjudicates the constitutionality of the acts of government officials (Ghai, in: Ghai and Cottrell Ghai 2015, 48; Ochieng, in: Fombad 2016, 286-287) and as such, checks the power of the executive. It can confidently be concluded, as this part has demonstrated, that the aspiration to end the centralisation of power in the president was given normative weight by the Constitution, 2010, which aiming to ensure the rule of law, establishes the separation of power between the legislature, the executive and the judiciary with an elaborate system of checks and balances in a manner receptive to the realisation of the rule of law and – alongside an independent executive and legislative – an

independent judiciary (Bosire, in: Fombad 2016, 117; Harrington and Manji 2015, 177; Mbondenyi and Ambani 2012, 10; Oseko 2011, 255; Wolf, in: Murungi 2010, 48). This chapter is, however, not so naïve to suggest that the promulgation of the Constitution, 2010, is an end in itself to advance the rule of law in Kenya (Murunga, Okello and Sjörgen, in: Murunga et al. 2014, 7). Rather the rule of law can only be advanced through the implementation of the transformative constitutional dispensation. III. The Nullification of the 2017 Presidential Election in Kenya – Advancing the Rule of Law?

The obligation to implement the transformative constitutional dispensation lies with the judiciary (Ghai, in: Murunga et al. 2014, 129; Murungi 2010, 15). The judiciary is the “custodian of the constitution” (Ghai 2015). It is obliged to promote and protect the purposes and principles of the Constitution, 2010, as outlined in Art. 10 of the Constitution, 2010 (Art. 159(2)(e) of the Constitution, 2010). It is, thus, to the judiciary that the drafters look for the implementation of the constitutional dispensation and on whom they place the highest responsibility (Ghai, in: Murunga et al. 2014, 129). The 2017 Presidential Election in Kenya and the petition challenging the result of the election presented an opportunity for the judiciary to implement the transformative constitutional dispensation established under the Constitution, 2010, thereby, advancing the rule of law in the country, after it had failed to do so in 2013 when, in the aftermath of the 2013 Presidential Election, the result of the election was challenged by a petition but the judiciary in its judgement upheld the result of the election. The third chapter, after briefly summarizing the events surrounding the 2017 Presidential Election and the petition challenging the result of the election, analyses the judgement with which the 2017 Presidential Election was nullified and the political reactions to it with regard to the question whether the nullification advanced the rule of law in Kenya. It seeks to answer the following main questions: What are the implications of the judgement with which the 2017 Presidential Election was nullified for the rule of law? Does the judgement advance the rule of law? How did the president / the opposition react to the nullification of the 2017 Presidential Election? Do their reactions indicate respect for the rule of law, the separation of powers and the independence of the judiciary? I argue that Raila Odinga v IEBC 2017 initially indicated an advancement of the rule of law in Kenya. While – in contrast to the Raila Odinga v IEBC 2013 reasoning – the reasoning in Raila Odinga v IEBC 2017 shows fidelity to the Constitution and its purposes and principles, thus indicating an advancement of the rule of law, such advancement was reversed when the Supreme Court returned to Raila Odinga v IEBC 2013 in its judgement upholding the result of the repeat 26th October 2017 Presidential Election (John Harun Mwau & 2 others v Independent Electoral and Boundaries Commission & 2 others 2017, hereinafter: John Mwau v IEBC 2017). I further argue that the political reactions to the nullification of the 2017 Presidential Election reveal a lack of respect for the rule of law, the separation of power and the independence of the judiciary. Indeed, the political reactions indicate interests vested in undermining the continued consolidation of the constitution, which, overall, leads to the conclusion

17 that the nullification of the 2017 Kenyan Presidential Election did not advance the rule of law in the country. The chapter is divided into two parts. Part one (1.) analyses Raila Odinga v IEBC 2017, the judgement with which the 2017 Presidential Election was nullified, with regard to the question whether the nullification advanced the rule of law in Kenya. Raila Odinga v IEBC 2017 will be compared to Raila Odinga v IEBC 2013 and John Mwau v IEBC 2017. Part two (2.) analyses the political reactions of President Uhuru Kenyatta and his opponent Raila Odinga as well as their respective parties – Jubilee and NASA – to the nullification of the 2017 Presidential Election. Kenya holds presidential elections on the second Tuesday of August in every fifth year (Art. 136(2)(a) of the Constitution, 2010). On Tuesday, 8th August 2017, Kenya held its second presidential election under the Constitution, 2010, conducted by the Independent Electoral and Boundaries Commission (IEBC), which is constitutionally charged with conducting elections to any elective body (Art. 88(4) of the Constitution, 2010). According to the results released by the IEBC incumbent president Uhuru Kenyatta of the Jubilee Party was re-elected with 54,2% of the votes whereas his opponent Raila Odinga of the National Super Alliance (NASA) received 44,9% of the vote (IEBC 2017). The IEBC Chairperson Wafula Chebukati, exercising his mandate under Art. 138(10) of the Constitution, declared incumbent president Uhuru Kenyatta as president-elect on the evening of 11 August 2017 (Chebukati 2017). Odinga refused to accept the results and, on 18 August 2017, filed a petition challenging the results of the election in the Supreme Court (Okuoro 2017), which has jurisdiction to hear and determine petitions with regard to elections to the office of president (Art. 163(3)(a) of the 2010 Constitution). The petition was anchored on the grounds that the conduct of the 2017 Presidential Election violated the principle of a free and fair election as laid down in Art. 38(2) and Art. 81(e) of the Constitution and the laws and regulations relating to elections and that there were irregularities and illegalities committed by the IEBC in the conduct of the election that affected the election (Raila Odinga v IEBC 2017, 14). The court came to the conclusion that the 2017 Presidential Election was not conducted in accordance with the Constitution and the relevant election laws and regulations, that there were irregularities and illegalities committed by the IEBC in the conduct of the 2017 Presidential Election and that the irregularities and illegalities committed by the IEBC affected the result of the election (Raila Odinga v IEBC 2017, 405). Consequently, a declaration was issued by the Supreme Court that the result of the presidential election was invalid, null and void (Raila Odinga v IEBC 2017, 405). The nullification of the 2017 Presidential Election was celebrated all over the world as affirming the advancement of the rule of law in Kenya (Binyon, The Times 2017; Maina, The Japan Times 2017). This is a brief summary of the events surrounding the 2017 Presidential Election and the petition challenging the results of the election. This dissertation hereinafter analyses Raila Odinga v IEBC 2017 with regard to the question whether the nullification indeed advanced the rule of law in Kenya. 1. Legal Analysis

Raila Odinga v IEBC 2017 was the second judgement on a petition challenging the result of a Presidential Election –Raila Odinga v IEBC 2013, with which the result of the 2013 Presidential Election was upheld, being the first – since the promulgation of the Constitution, 2010. It was also the second opportunity for the judiciary to implement the transformative constitutional dispensation established under the Constitution, 2010, thereby, advancing the rule of law in the country, after it had failed to do so in Raila Odinga v IEBC 2013, which has been criticised for being at odds with the “transformative nature of the constitutional [dispensation] inaugurated under the Constitution, 2010” (Harrington and Manji 2015, 180). The question then, to assess whether the nullification advanced the rule of law in Kenya, is whether the judiciary in Raila Odinga v IEBC 2017, as opposed to in Raila Odinga v IEBC 2013, showed fidelity to the transformative nature of the constitutional dispensation inaugurated under the Constitution, 2010. To determine whether the judiciary in Raila Odinga v IEBC 2017 showed fidelity to the Constitution, 2010, thereby, advancing the rule of law, Raila Odinga v IEBC 2017 is compared to Raila Odinga v IEBC 2013. In Raila Odinga v IEBC 2013 the judges allowed every application of the respondents – Uhuru Kenyatta, his Jubilee Party and the IEBC – while disallowing every application of the petitioners – Raila Odinga and his – at the time – Coalition for Reforms and Democracy (CORD) Party (Onyando 2018, 231): The judges allowed the application for amicus curiae or ‘friend of the court’ – someone who is not party to a case but is allowed to assist the court impartially with information, expertise and insights – of the Attorney General, the principal legal advisor to the government of Kenya and as such likely to support the respondents while the application of Prof. Yash Pal Ghai, one of the fathers of the Constitution, 2010, who’s argument supported the petitioners was disallowed (Kegoro 2017a; Onyando 2018, 231; Wolfrom, in: Thibon, Ndeda, Fouéré and Mwangi 2014, 241). Prof. Ghai commented on this as follows: “We applied as amicus curiae. […] At the same time the Attorney General also [applied]. […] I thought they [the judges] were surely going to allow [our application as amicus] […] but to my surprise they said that they think we are biased. But they allowed the Attorney General. […] If there was anyone biased it was him” (Ghai 2018). Jill Cottrell Ghai reiterates: “Why did they allow the Attorney General […] and not us, when it’s perfectly clear that the Attorney General is not going to be [impartial]. And that was their objection to us.” (Cottrell Ghai 2018). The judges further disallowed the petitioners main body of evidence in that it disallowed an affidavit which had been submitted by the petitioners and which thought to introduce their main body of evidence (Onyando 2018, 231). The court argued that the “requirements of a disciplined trial process required under the Constitution” (Raila Odinga v IEBC 2013, 216) did not allow for a consideration of the affidavit. In other words: it deemed the affidavit to be submitted “too late” (Wolfrom, in: Thibon, Ndeda, Fouéré and Mwangi 2014, 241) to be considered despite the clear constitutional dictate in Art. 152 of the Constitution, 2010, that “justice shall be administered without undue regard to procedural technicalities” (Art. 152 (2)(d) of the Constitution, 2010), which means that courts, instead of focusing on procedural and technical matters, should focus on dispensing

19 substantive justice (Ongoya, in: Odote and Musumba 2016, 242). In Raila Odinga v IEBC 2013, however, the court disregarded this meaning (Raila Odinga v IEBC 2013, 218), thereby limiting the substantive basis for its judgement (Harrington and Manji 2015, 181) – an unacceptably procedural and technical approach (Ongoya, in: Odote and Musumba 2016, 236). Further, while allowing a scrutiny of the election result the result of which revealed a number of inconsistencies (Aywa, in: Odote and Musumba 2016, 66; Elisha 2013; Shah 2013a; Shah 2013b; Wanyeki 2013; Wolfrom, in: Thibon, Ndeda, Fouéré and Mwangi 2014, 241), in its judgement the court discarded the result of the scrutiny (Shah 2013a; Shah 2013b; Wolfrom, in: Thibon, Ndeda, Fouéré and Mwangi 2014, 241). Against this background, the Court concluded to uphold the result of the 2013 Presidential election and found that President Kenyatta was validly elected in a free and fair election (Raila Odinga v IEBC 2013, 307). The jurisprudence developed in Raila Odinga v IEBC 2013 led to the belief that a petition filed against the 2017 Presidential Election was bound to fail (Kegoro 2017b; Maina 2017): “We, ourselves [the International Commission of Jurists (ICJ) Kenya] and Katiba Institute (KI), undertook an analysis of whether we should file a petition. And we arrived at the conclusion that the current Supreme Court would not be a forum to put [a petition]. So we decided not to go court. […] We considered the court as constituted and borrowing from the past” (Mohochi 2018). However, the court consciously aimed to avoid the pitfalls of 2013 in Raila Odinga v IEBC 2017 (Onyando 2018, 231): It allowed amicus curiae applications from both, the Attorney General, likely to support the respondents and representatives of non-governmental organisations (NGO’s), likely to support the petitioners, and, importantly, considered the result of the allowed scrutiny of the election result in its judgement (Kegoro 2017b; Onyando 2018, 232). Differences between Raila Odinga v IEBC 2013 and Raila Odinga v IEBC 2017, however, did not just concern procedural and technical matters but also substantive matters: Crucial for both judgements was the interpretation of Section 83 of the Elections Act, 2011, which determines the standard that a person who challenges the result of an election has to proof for the election to be declared void (Wanyoike 2018). It reads: “No election shall be declared to be void by reason of non-compliance with any written law relating to that election if it appears that the election was conducted in accordance with the principles laid down in the Constitution and in that written law or that the non-compliance did not affect the result of the election.” (Sec. 83 of the Elections Act, 2011) There are two limbs to this provision: that an election shall be declared void by reason of non-compliance with the principles laid down in the constitution or the law or by reason of compliance that affected the result of the election. In other words: An election shall be declared void if it is not conducted in accordance with the Constitution or the laws and regulations relating to elections or if there were irregularities and illegalities committed that affected the result of the election. The issue in the interpretation of the provision is whether or not the two limbs are to apply conjunctively or disjunctively (Raila Odinga v IEBC 2017, 192).

The court in Raila Odinga v IEBC 2017 identifies that if the term ‘and’ would be used in the provision, that would indicate a conjunctive application of the two limbs. However, Section 83 of the Elections Act, 2011, uses the term ‘or’ which indicates a disjunctive application (Raila Odinga v IEBC 2017, 193). To invalidate an election in Kenya either one of the two limbs, but not necessarily both, must be met. This interpretation of the section is consistent with Morgan v Simpson in which the court found that a court is required “to declare an election invalid (a) if irregularities in the conduct of elections had been such that it could not be said that the election had been conducted as to be substantially in accordance with the law as to elections, or (b) if the irregularities had affected the result” (Morgan and others v Simpson and another [1974] 3 All ER 722). It holds, that that in itself is enough for the Court to declare the election void even though it had been conducted substantially in accordance with the law. Conversely, if the election had been conducted not substantially in accordance with the law, it is void irrespective of whether the result of the election had been affected. This is the standard that has been adopted in Kenya in Sec. 83 of the Elections Act, 2011, through the use of the word ‘or’ rather than ‘and’ (Harrington and Manji 2015, 179-180). Accordingly, the Court finds that the two limbs of Sec. 83 of the Elections Act, 2011, are to apply disjunctively: “A petitioner who is able to prove that the conduct of the election in question substantially violated the principles laid down in our Constitution as well as other written law on elections, will on that ground alone, void an election. He will also be able to void an election if he is able to prove that although the election was conducted substantially in accordance with the principles laid down in our Constitution as well as other written law on elections, it was fraught with irregularities or illegalities that affected the result of the election.” (Raila Odinga v IEBC 2017, 211) This constitutes a departure from the interpretation of Sec. 83 of the Elections Act, 2011 in Raila Odinga v IEBC 2013 in which the Court interpreted the limbs of the section to apply conjunctively, disregarding Morgan v Simpson, instead relying on precedent from Nigeria and Uganda (Alhaji Atiku Abubakar and others v Alhaji Umaru Musa Yar'adua and others [2009] All FWLR (Pt. 457) 1 S.C. and Muhammadu Buhari and others v Aremu Obasanjo and others [2003] 17 NWLR (Pt. 850) 587, hereinafter: Buhari v Aremu Obasanjo 2003) (Maina 2017), cited in the amicus curiae submission of the Attorney (Raila Odinga v IEBC 2013, 184), in which the courts found that the petitioner must prove both (a) that irregularities in the conduct of elections had been such that it could not be said that the election had been conducted as to be substantially in accordance with the law as to election, and (b) that the irregularities had affected the result instead of either (a) or (b). In Buhari v Aremu Obasanjo 2003 the Court stated: “The burden is on petitioners to prove that non-compliance has not only taken place but also has substantially affected the results […]. There must be clear evidence of non-compliance, then, that the non-compliance has substantially affected the election” (Buhari v Aremu Obasanjo 2003). The court found merit in such approach (Raila Odinga v IEBC 2013, 196) without engaging on its applicability in Kenya. Are the legal schemes from which it adopts

21 the jurisprudence in any way comparable to the Kenyan legal scheme (Wanyoike 2013)? Section 146(1) of the Nigerian Electoral Act, 2006, reads: “An election shall not be liable to be invalidated by reason of non-compliance with the provisions of this Act if it appears to the Election Tribunal or Court that the election (i) was conducted substantially in accordance with the principles of this Act and (ii) that the non-compliance did not affect substantially the result of the election.” (Sec. 146(1) of the Nigerian Electoral Act, 2006) This section is not comparable to Sec. 83 of the Kenyan Elections Act, 2011, because it uses the word ‘and’ rather than ‘or’, thereby indicating a conjunctive rather than disjunctive application of, whereby Sec. 83 the Kenyan Election Act, 2011, uses the word ‘or’, indicating a disjunctive application. The Court in Raila Odinga v IEBC 2013 overlooks this difference between the Nigerian and the Kenyan legal scheme and, thus, interprets Sec. 83 of the Kenyan Election Act, 2011, against its wording. The court’s interpretation of Sec. 83 the Kenyan Elections Act, 2011, however, is not only against the wording of the section but also insulated Kenyatta and his Jubilee Party as well as the IEBC from an effective challenge of the election result as the court presented the petitioners with an insuperable burden of proof, having the burden to prove both limbs of Section 83 of the Election Act, 2011 (Harrington and Manji 2015, 180). What are the implications of Raila Odinga v IEBC 2013 and Raila Odinga v IEBC 2017 for the rule of law? Raila Odinga v IEBC 2013 was the first opportunity for the judiciary to implement the transformative constitutional dispensation under the Constitution, 2010, thereby, advancing the rule of law in the country. However, the judiciary failed to seize the opportunity (Wanyoike 2013). The judgement looked rather technical – the judges approached the decision from a technical point of view (Ghai 2018; Wanyoike 2018). They hid behind procedural and technical matters to shield their judgement from the introduction of evidence and from the result of a scrutiny that revealed substantive discrepancies that could incline them to nullify the election; an approach that was common under the Constitution, 1963 (Ghai 2018; Wanyoike 2018), thereby undermining the transformative constitutional dispensation under the Constitution, 2010. Furthermore, the judges interpretation of Sec. 83 of the Elections Act, 2011, in Raila Odinga v IEBC 2013 is inconsistent with “transformative nature of the constitutional [dispensation] inaugurated under the Constitution, 2010” (Harrington and Manji 2015, 180). The Constitution, 2010, gave normative weight to the aspiration to end the centralisation of power in the president. The judges, however, in their interpretation of Sec. 83 of the Elections Act, 2011, never considered this historical background (Wanyoike 2018) – they never considered that an interpretation of Sec. 83 of the Elections Act, 2011, that insulated Kenyatta and his Jubilee Party as well as the IEBC from an effective challenge of the election is inconsistent with the aspiration to end the centralisation of power in the president and, therefore, with the historical background of the Constitution, 2010. Waikwa Wanyoike reiterates: “If you look at the court’s discussion of the interpretation of Sec. 83 [of the Elections Act, 2011] in [Raila Odinga v IEBC 2013], the court hardly

mentions the constitution. I’m saying hardly but I actually want to say it didn’t mention the constitution. It never contextualized the section to [the historical background] of the constitution” (Wanyoike 2018). Rather, their interpretation reinforced the picture of a presidency above the Constitution and the law. A vision at odds with the transformative nature of the constitutional dispensation inaugurated under the Constitution, 2010. Thereby, they ignore their constitutional obligation to promote and protect the purposes and principles of the Constitution, including the rule of law (Harrington and Manji 2015, 185). Prof. Yash Pal Ghai reiterates: “We looked at the judgement and we were not happy with it. It was not paying enough attention to the constitution – its’s purposes and principles” (Ghai 2018). Overall, the judiciary in Raila Odinga v IEBC 2013 did not show fidelity to the Constitution, 2010. In contrast to the Raila Odinga v IEBC 2013, Raila Odinga v IEBC 2017 did show fidelity to the transformative nature of the constitutional dispensation inaugurated under the Constitution, 2010. Rather than from a technical point of view, the judges approached the decision from a substantive point of view (Wanyoike 2018). Furthermore, and that’s where Raila Odinga v IEBC 2017 substantively differs from Raila Odinga v IEBC 2013, the judges interpretation of Sec. 83 of the Elections Act, 2011, in Raila Odinga v IEBC 2013 is consistent with transformative nature of the constitutional dispensation inaugurated under the Constitution, 2010. The court considered the historical background of the Constitution, 2010: “The court interpreted Sec. 83 [of the Elections Act, 2011] from a contextual and purposive point of view: We have Sec. 83. [of the Elections Act, 2011]. It has been implemented after the Constitution, 2010. They started by asking what is the standard that the Constitution, 2010, requires. […] And which is the way to [interpret] Sec. 83 [of the Elections Act, 2011] to conform with that constitutional standard” (Wanyoike 2018). The court itself reiterates its fidelity to the Constitution by stating that it does not take the decision to placate any side of the political divide with regard to the interpretation of Sec. 83 of the Elections Act, 2011: “Judges haven taken an oath of fidelity to the constitution and to keep their oath, they cannot, to placate any side of the political divide, alter, amend, read into or in any way affect the meaning attributed to Section 83 of the Elections Act by the constitution” (Raila Odinga v IEBC 2017, 390). It is, however, not just in the interpretation of Sec. 83 of the Elections Act, 2011, in that the court showed fidelity to the Constitution. The court acted with determination to function as an independent arbiter of justice (Mbaku 2017) and the judgement can confidently be said to be a consolidation of judicial independence and of the judiciary’s effort to check the power of the executive. By annulling the election, the court showed that not even the president is above the law. In its conclusive remarks the court emphasizes this point. It states that while it is not for the court to determine who occupies the presidential office; the Court is, however, the judicial forum, entrusted under the Supreme Court Act, 2011, with the obligation to ensure that individuals accede to power in the presidential office

23 only in compliance with the law regarding elections (Raila Odinga v IEBC 2017, 393). It thus recognizes its obligation to uphold the rule of law: “To dishonestly exercise the power delegated to the judiciary under Art. 1(3)(c) of the Constitution and to close our eyes to constitutional violations would be a dereliction of duty and we refuse to accept the invitation to do so however popular the invitation may seem.” (Raila Odinga v IEBC 2017, 399). Overall, it can confidently be concluded that Raila Odinga v IEBC 2017, in comparison to Raila Odinga v IEBC 2013, indicates an advancement of the rule of law in Kenya. However, while Raila Odinga v IEBC 2017 in itself is indicative of an advancement of the rule of law in the country, the question whether the rule of law indeed advanced can only be answered by analysing the aftermath of the nullification. While the political reactions to the nullification are analysed in the second part of this chapter, this part focuses on the petition with which the result of the 26th October 2017 repeat presidential election (hereinafter: 2017 repeat Presidential Election) was challenged and the judgement which upheld the election. On 26th October 2017 the IEBC conducted the repeat presidential election and on 30th October 2017 the IEBC Chairperson declared incumbent president Uhuru Kenyatta as the president-elect (Vidija 2017). The result of the 2017 repeat presidential election was challenged in court on the grounds that the election had not been conducted in accordance with the Constitution and the relevant election laws and regulations (John Mwau v IEBC 2017, 9) and that there were irregularities and illegalities committed by the IEBC that affected the result of the election (John Mwau v IEBC 2017, 9). Again it was for the court to consider the validity of the presidential election. Notably, other than in Raila Odinga v IEBC 2017 in which the court consciously aimed to avoid the pitfalls of Raila Odinga v IEBC 2013, in determining the validity of the 2017 repeat presidential election the court returned the court returned to its unacceptably procedural and technical approach in Raila Odinga v IEBC 2013 and disallowed applications by the petitioners to shield their judgement from the introduction of evidence that could incline the it to nullify the election, such as the application for security of the election result. In both previous petitions, the result if the scrutiny of the election result had shown substantive discrepancies which should have inclined the judges to allow the application by the petitioners for scrutiny of the election result. Indeed, an independent scrutiny of forms by NGO’s showed a number of substantive discrepancies (Shah 2018). However, the court disallowed the scrutiny, thereby, clearly returning to Raila Odinga v IEBC 2013 – to a judiciary determined to limit the substantive basis for its judgement to shield their judgement from the introduction of evidence that could incline the it to nullify the election. Consequentially, the court upheld the 2017 repeat presidential election (John Mwau v IEBC 2017, 4). Just as in Raila Odinga v IEBC 2013 the judges hid behind procedural and technical matters to shield their judgement from the introduction of evidence that could incline the it to nullify the election. Other than in Raila Odinga v IEBC 2017 the Court disregarded the transformative constitutional dispensation under the Constitution, 2010, establishing jurisprudence in line with Raila Odinga v IEBC 2013. Overall, it can, therefore, only be concluded that the court reversed itself as far as advancing the rule of law is concerned (Mohochi 2018).

2. Political Analysis

The judgement, however, is not the only factor to establish whether the nullification of the 2017 Presidential Election advanced the rule of law in Kenya. It is also the political reactions to the nullification, that reflect respect or the lack thereof for the rule of law, that determine whether Kenya’s judiciary was able advance the rule of law in the country. This part, therefore, analyses the political reactions of President Uhuru Kenyatta and his opponent Raila Odinga as well as their respective parties – Jubilee and NASA – to the nullification of the 2017 Presidential Election to determine whether they indicate respect for the rule of law and interrelated constitutional concepts. Both parties are to be credited for recognizing the role of the judiciary by allowing the judiciary to resolve the matter: ahead of the judgement, President Kenyatta advised the opposition to take their case to the court and abide by its decision (Mbaku 2017) which Odinga did. The decision to turn to the Court demonstrates respect for the role of the judiciary in upholding the rule of law. However, have Kenyatta and Odinga accepted the judgement of the Supreme Court thus expressing continued respect for the rule of law? Their rhetoric has not been reassuring: Initially, Kenyatta addressed the nation at State House, where he said he disagreed with the decision but accepted it: “It is important for us as Kenyans to be respecters of the rule of law. I personally disagree with the ruling that has been made today, but I respect it.” (Kenyatta 2017) However, shortly thereafter he attacked the judges calling them “crooks” (Mwere, Lang’at, Ochieng and Maina 2017) and promised he would “fix” the Court (Worley 2017). He continued: “When we finish we will revisit this thing. Kwani wewe umechaguliwa na nani? [Who do you think elected you?]. No, no, no. There is a problem and we must fix it” (Mwere, Lang’at, Ochieng and Maina 2017) thereby threatening the independence of the judiciary. Judges and Magistrates asked Kenyatta to stop his attacks on the judiciary: “The President of this country referred to the judges of the Supreme Court as “wakora” (crooks). He went on to make veiled threats against the judges on their decision. […] The President must have respect for the judiciary.” (Mwere, Lang’at, Ochieng and Maina 2017). From the moment the Supreme Court nullified the 2017 Presidential Election, it was subjected to threats led by Kenyatta (Onyando 2018, 232) and, thereby, exposed the government’s lack of respect for the judiciary and the rule of law. Moreover, the government took action to amend the Elections Act, 2011 to make it more difficult for judges to nullify an election (Onyando 2018, 233) by amongst others amending Sec. 83 of the Election Act, 2011, the interpretation of which was decisive for the court’s decision to nullify the 2017 presidential election. The amendment reads as follows: “The Elections Act, 2011 is amended by deleting section 83 and substituting therefore the following section – 83(1) A Court shall not declare an election void for non-compliance with any written law relating to that election if it appears that – (a) the election was conducted in accordance with the

principles laid down in the Constitution and in that written law, and (b) the non-compliance did not substantially affect the result of the election.” (Sec. 9 of the Election Laws (Amendment) Act, 2017) The amendment is informed by Raila Odinga v IEBC 2017 in which the Court established a disjunctive application of the two limbs of the section. It seeks to introduce a wording to the section that would require the court to establish a conjunctive application in a subsequent judgement on a presidential election petition. The amendment, thereby, not only undermines the authority of the court (Wanyoike 2018) but also insulates from an effective challenge of a subsequent presidential election as the amendment presents the person who challenges the result of an election with an insuperable standard of proof, having the burden to prove both limbs of Sec. 83 of the Election Act, 2011 for the election to be declared void (Olick 2017), an interpretation which, as was established above, is inconsistent with the aspiration to end the centralisation of power in the president and, therefore, with the historical background of the Constitution, 2010: “The court said what is the standard expected by the Constitution of Sec. 83 [of the Elections Act, 2011] and then read Sec. 83 to meet that standard. […] The moment the court looks at what the constitutional standard is then you cannot change Sec. 83 […] against the court’s interpretation” (Wanyoike 2018). Moreover, the amendment allows for violations of the constitution and elections laws and regulations as long as they do not affect the result of the election. The amendment was subject to a petition at the High Court and was determined by the High Court in Katiba Institute & 3 others v Attorney General & 2 others [2018] eKLR to be unconstitutional for the above argument: “The amendment now means that for an election to be annulled there must not only be failure to comply with the Constitutional principles and election laws but also the failures must substantially affect the result of the election. The essence of this amendment is to allow violation of constitutional principles and election laws as long as they do not substantially affect the result. […] Any amendments must be forward looking in order to make elections more free, transparent and accountable, than to shield mistakes that vitiate an electoral process. […] Allowing such an amendment would be to ignore constitutional principles in our transformative Constitution that there should be free, fair, transparent and accountable elections.” (Katiba Institute v Attorney General 2018, 115-125) The Court therefore declared Sec. 83 as amended by the Election Laws (Amendment) Act, 2017 unconstitutional (Katiba Institute v Attorney General 2018, 125). The matter is currently under consideration by the Court of Appeal. What about Odinga? Of course, he celebrated the nullification of the 2017 Presidential Election (Asamba 2017). Before the repeat presidential election, however, Odinga withdrew as a candidate contending that the 2017 repeat presidential election would be conducted in the same manner as the last one: “We […] came to the conclusion that there is no intention on the part of the IEBC to undertake any changes to […] ensure that the ‘illegalities and irregularities’ that led to the invalidation of the 8 August election do not

happen again. All indications are that the election scheduled for 26 October will be worse than the previous one. My participation in it, therefore, would legitimize [it and] the current drive by the Jubilee Government to dismantle fundamental democratic rights […]. After the August election, and even before the new one, they are moving to dismantle the entire edifice of the rule of law enshrined in Kenya’s constitution” (Raila Odinga 2017). He, thereby, criticises the government for its rhetoric and actions that reveal a lack of respect for the judiciary and the rule of law. However, after the judgement with which the 2017 repeat presidential election was upheld, Odinga changes his rhetoric and actions and himself reveals a lack of respect for the rule of law. On 30th January 2018 he had himself sworn in as the “people’s president” (Onyango and Otieno 2018) – an act that reveals a lack of respect for the judiciary and the rule of law in that he refuses to recognize the judgement which upheld the 2017 repeat presidential election. The above political reactions of President Uhuru Kenyatta and his opponent Raila Odinga do not even scratch the surface of “the deteriorating muck that courses through so many channels of political rhetoric in Kenya today” (Chege 2018, 168) but they paint a vivid picture of how far along politicians are with respect for the rule of law in the country. Since the nullification of the 2017 Presidential Election Kenyatta and Odinga and their respective parties have treated Kenya to “a theatre of the absurd” (Odote 2018). Their political reactions reveal a lack of respect for the judiciary and the rule of law. “In place of the Constitution with checks on the abuse of power, Kenya has in power leaders who have no compulsion to put the law aside whenever it stands in their way” (Onyando 2018, 204).

Conclusion

The aim of this dissertation was to analyse whether the nullification of the 2017 Presidential Election in Kenya is consistent or inconsistent with the transformative nature of the constitutional order inaugurated under the Constitution, 2010, and, thereby, advanced the rule of law in the country. I argued that the Constitution, 2010, aspires to end the centralisation of power in the presidency which was experienced in Kenya under the Constitution, 1963. With the centralisation of power in the president and the correlative erosion of the independence of the judiciary, no one could ensure the rule of law. The Constitution, 2010, aiming to ensure the rule of law, establishes the separation of power and an independent judiciary that controls presidential power. The aspiration to implement the transformative constitutional dispensation established under the Constitution, 2010, was given weight in Raila Odinga v IEBC 2017. In contrast to Raila Odinga v IEBC 2013, which neither showed fidelity to the Constitution nor to its purposes and principles – Raila Odinga v IEBC 2017 showed fidelity to the Constitution and its purposes and principles, thus indicating an advancement of the rule of law. Such advancement was, however, reversed when the Supreme Court returned to Raila Odinga v IEBC 2013 in its judgement upholding the result of the repeat 26th October 2017 Presidential Election in John Mwau v IEBC 2017.

I further argued that the political reactions to the nullification of the 2017 Presidential Election reveal a lack of respect for the rule of law, the separation of power and the independence of the judiciary. It is especially the political reactions to Raila Odinga v IEBC 2017 that speak against an advancement of the rule of law in Kenya. Under the Constitution, 1963, the disrespect of the presidency for the rule of law was its biggest challenge – and it might still be under the Constitution, 2010. Indeed, the political reactions indicate interests of politicians undermining the advancement of the rule of law. For them, the state is the source of power and wealth and the political class is determined to secure this status quo, thereby, rejecting the transformative constitutional dispensation under the Constitution, 2010 (Ghai and Ghai 2011, 13): “A major obstacle to the implementation of such a constitution in Kenya, is that the state is the primary source of power and wealth […]. It remains to be seen whether those who are committed to reform of the state will be able to impose the discipline of the constitution on the [political] class, the principal and direct beneficiaries of the state. For though politicians […] seem to fight each other […] they are bonded by common interests as a class, and will collectively resist reforms” (Wolf 2010, 77-78). And recent actions by President Kenyatta reflect this. He promised to “revisit” the “problems” within the judiciary and “fix” it. In line with this promise, Kenyatta and his Jubilee-party have been targeting the Supreme Court and the Judiciary: Deputy Chief Justice (DCJ) Philomena Mwilu has been arrested for alleged corruption (Wasunaby 2018). Against the background that the DCJ voted for the nullification of the 2017 Presidential Election and President Kenyatta’s promise to “revisit” the “problems” within the judiciary, it is difficult not to be concerned about the motivation of the arrest. Jill Cottrell Ghai reiterates: “And now they arrest the Deputy Chief Justice […]. You can’t help feeling… […] Think of the psychological impact this has on the judiciary. […] You can imagine how terrified they may be. […] This is actually undermining the independence of the judiciary […] and therefore the rule of law.” (Cottrell Ghai 2018). While the government’s fight against corruption should be credited, such fight should not be used as a political tool to revisit the “problems” within the Supreme Court. Furthermore, the government radically cut the judiciary’s budget for this year. Again: Against the background of the nullification of the 2017 Presidential Election and President Kenyatta’s promise, it is difficult not to be concerned about the motivation. It seems, that since the nullification of the 2017 Presidential Election the judiciary has been under attack by President Kenyatta and his Jubilee-party which has revealed its utmost lack of respect for the independence of the judiciary, the separation of power and the rule of law, which, overall, leads me to conclude that the nullification of the 2017 Kenyan Presidential Election did not advance the rule of law in the country. One judgement cannot cause a change in a fundamentally flawed system.

Bibliography

Constitutions and Legislation

The Constitution of Kenya, 1963.

The Constitution of Kenya, 2010.

The Constitution of Kenya (Amendment) Act, No. 28 of 1964.

The Election Laws (Amendment) Act, No. 34 of 2017.

The Kenya Independence Order, 1963.

The Kenyan Elections Act, 2011.

The Kenyan Supreme Court Act, 2011.

The Nigerian Electoral Act, 2006.

Cases

Alhaji Atiku Abubakar and others v Alhaji Umaru Musa Yar'adua and others [2009] All FWLR (Pt. 457) 1 S.C.

John Harun Mwau & 2 others v Independent Electoral and Boundaries Commission & 2 others [2017] eKLR.

Katiba Institute & 3 others v Attorney General & 2 others [2018] eKLR.

Morgan and others vs Simpson and another [1974] 3 All ER 722.

Muhammadu Buhari and others v Aremu Obasanjo and others [2003] 17 NWLR (Pt. 850) 587.

Raila Odinga & 5 others v Independent Electoral and Boundaries Commission & 3 others [2013] eKLR.

Raila Odinga & another v Independent Electoral and Boundaries Commission & 2 others [2017] eKLR.

Interviews

Cottrell Ghai, Jill. Katiba Institute. 29th September 2018.

Ghai, Yash Pal. Katiba Institute. 14th September 2018.

Mohochi, Samwel. International Commission of Jurists (ICJ) Kenya. 29th September 2018.

Waikwa Wanyoike. Katiba Institute. 12th September 2018.

Books and Book Chapters

Aywa, Francis Angi’la, 2016. “A Critique of the Raila Odinga v IEBC Decision in Light of the Legal Standards for Genuine Presidential Elections in Kenya”, in: Odote, Collins and Musumba, Linda (Ed.), Balancing the Scales of Electoral Justice – Resolving Disputes from the 2013 Elections in Kenya and the Emerging Jurisprudence, pp. 46- 77. Barak, Ahron. 2006. The Judge in a Democracy. Princeton: Princeton University Press.

Bingham, Tom. 2010. The Rule of law. London: Penguin Books.

Bosire, Conrad M. 2016. “Kenya’s Budding Bicameralism and Legislative-Executive Relations”, in: Fombad (ed.), Separation of Powers in African Constitutionalism. Oxford: Oxford University Press.

Corstens, Geert. 2017. Understanding the Rule of Law. London: Bloomsbury Publishing.

Dicey, A.V. [1885] 1982. Introduction to the Study of the Law of the Constitution. Indianapolis: Liberty Fund.

Fombad, Charles M., 2016. Separation of Powers in African Constitutionalism. Oxford: Oxford University Press.

Ghai, Yash Pal. 2014. “Constitutions and Constitutionalism: The Fate of the 2010 Constitution”, in: Murunga et al. (eds.), Kenya: The Struggle for a New Constitutional Order. London: ZED Books.

Ghai, Yash Pal. 2015. “Separation of Powers, Checks and Balances, and the Rule of Law”, in: Ghai and Ghai (eds.), National Values and Principles of the Constitution. Nairobi: Katiba Institute.

Ghai, Yash Pal and Cottrell Ghai, Jill. 2011. Kenya’s Constitution: An Instrument for Change. Nairobi: Katiba Institute.

Ghai, Yash Pal and Cottrell Ghai, Jill. 2015. National Values and Principles of the Constitution. Nairobi: Katiba Institute.

Ghai, Yash Pal and McAuslan, J. P. W. B. 1970. Public Law and Political Change in Kenya : A Study of the Legal Framework of Government from Colonial Times to the Present. Oxford: Oxford University Press.

Hayek, F.A. [1944] 2007. The Road to Serfdom. Chicago: Chicago University Press.

Hayek, F. A. 1955. The Political Ideal of the Rule of Law. Cairo: National Bank of Egypt.

Hayek, F.A. 1978. The Constitution of Liberty. Chicago: Chicago University Press.

Hutchinson, Allan C. and Monahan, Patrick. 1987. The Rule of Law: Ideal or Ideology. Toronto: Carswell.

Juma, Dan. 2010. “The Normative Foundations of Constitution Making in Kenya: The Judiciary Past, Present and Future”, in: : Murungi. Constitutional Change, Democratic Transition and the Role of the Judiciary in Government Reform: Questions and Lessons for Kenya. Judiciary Watch Report, Vol. 9. Nairobi: The Kenya Section of the International Commission of Jurists (ICJ).

Kaguongo, Waruguru and Musila, Godfrey M. 2009. Addressing Impunity and Options for Justice in Kenya: Mechanisms, Issues and Debates. Judiciary Watch Report, Vol. 8. Nairobi: The Kenya Section of the International Commission of Jurists (ICJ).

Kibwana, Kivutha, Kimondo, G. Kanyi and Gathii, James Thuo. 1996. The Citizen and the Constitution. Nairobi: Claripress.

Kibwana, Kivutha. 1996. “Constitution-Building in Kenya, 1960-1992”, in: Kibwana, Kimondo and Gathii, The Citizen and the Constitution. Nairobi: Claripress.

Kimondo, G. Kanyi. 1996. “Constitutional Amendments between 1964-1990”, in: Kibwana, Kimondo and Gathii, The Citizen and the Constitution. Nairobi: Claripress.

Lautenbach, Geranne. 2013. The Concept of the Rule of Law and the European Court of Human Rights. Oxford: Oxford University Press.

Lumumba, P.L.O. and Mbondenyi, Kiwinda. 2011. Constitution of Kenya: Contemporary Readings. Nairobi: Law Publishing Africa.

Lumumba, P.L.O. 2011. “A Journey through Time in Search for a New Constitution”, in: Lumumba and Mbondenyi (eds.), Constitution of Kenya: Contemporary Readings. Nairobi: Law Publishing Africa.

Majanja, David, 2016. “Judiciary’s Quest for A Speedy and Just Electoral Dispute Resolution Mechanism: Lessons from Keny’'s 2013 Elections”, in: Odote and Musumba (eds.), Balancing the Scales of Electoral Justice – Resolving Disputes from the 2013 Elections in Kenya and the Emerging Jurisprudence. Rome: International Development Law Organization (IDLO) and Nairobi: Judiciary Training Institute (JTI).

Mbondenyi, Morris Kiwinda and Ambani, Osogo. 2012. New Constitutional Law of Kenya: Principles, Government and Human Rights. Nairobi: Law Publishing Africa.

Mbondenyi, Morris Kiwinda. 2011. “Introduction”, in: Lumumba and Mbondenyi (eds.), Constitution of Kenya: Contemporary Readings. Nairobi: Law Publishing Africa.

Montesquieu, Charles de. [1748] 1989.The Spirit of the Laws. Cambridge: Cambridge University Press.

Mosota, Dennis Ben. 2011. “Constitutionalism and the Rule of Law under the New Constitutional Order”, in: Lumumba and Mbondenyi (eds.), Constitution of Kenya: Contemporary Readings. Nairobi: Law Publishing Africa.

Murunga et al. 2014. Kenya: The Struggle for a New Constitutional Order. London: ZED Books.

Murunga, Godwin R., Okello, Duncan and Sjörgen, Anders. 2014. “Towards a New Constitutional Order in Kenya: An Introduction”, in: Murunga et al. (eds.), Kenya: The Struggle for a New Constitutional Order. London: ZED Books.

Murungi, Curtis Njue. 2010. Constitutional Change, Democratic Transition and the Role of the Judiciary in Government Reform: Questions and Lessons for Kenya. Judiciary Watch Report, Vol. 9. Nairobi: The Kenya Section of the International Commission of Jurists (ICJ).

Musila, Godfrey M. 2009. “The Accountability Process in Kenya: Context, Themes and Mechanisms”, in: Kaguongo and Musila, Addressing Impunity and Options for Justice in Kenya: Mechanisms, Issues and Debates. Judiciary Watch Report, Vol. 8. Nairobi: The Kenya Section of the International Commission of Jurists (ICJ).

Odote, Collins and Musumba, Linda. 2016. Balancing the Scales of Electoral Justice – Resolving Disputes from the 2013 Elections in Kenya and the Emerging Jurisprudence. Rome: International Development Law Organization (IDLO) and Nairobi: Judiciary Training Institute (JTI).

Ochieng, Walter Khobe. 2016. “Judicial-Executive Relations in Kenya Post-2010: The Emergence of Judicial Supremacy?”, in: Fombad (ed.), Separation of Powers in African Constitutionalism. Oxford: Oxford University Press.

Ongoya, Elisha Z. 2011. “Separation of Powers”, in: Lumumba and Mbondenyi (eds.), Constitution of Kenya: Contemporary Readings. Nairobi: Law Publishing Africa.

Ongoya, Elisha Z., 2016. “Evidentiary Matters in Election Petitions in Kenya: Progress or Backsliding?”, in: Odote, Collins and Musumba, Linda (Ed.), Balancing the Scales of Electoral Justice – Resolving Disputes from the 2013 Elections in Kenya and the Emerging Jurisprudence, pp. 215-242. Onyando, John. 2018. Kenya: The Failed Quest for Electoral Justice. Nairobi: Free Press Publishers.

Raz, Joseph. [1977] 1979. The Authority of the Law. Oxford: Oxford University Press.

Shklar, Judith N. 1987. “Political Theory and the Rule of Law”, in: Hutchinson and Monahan (eds.), The Rule of Law: Ideal or Ideology. Toronto: Carswell.

Tamanaha, Brian Z. 2004. On the Rule of law – History, Politics, Theory. Cambridge: Cambridge University Press.

Thibon, Christian, Ndeda, Mildred, Fouéré, Marie-Aude and Mwangi, Susan. 2014. Kenya’s Past as Prologue: Voters, Violence and the 2013 General Election. Nairobi: Twaweza Communications.

Wolf, Tom. 2010. “Kenya’s New Constitution: Triumph in Hand, Testing Times ahead?”, in: Murungi. Constitutional Change, Democratic Transition and the Role of the Judiciary in Government Reform: Questions and Lessons for Kenya. Judiciary Watch Report, Vol. 9. Nairobi: The Kenya Section of the International Commission of Jurists (ICJ).

Wolfrom, Marie. 2014. “The Election Commission and the Supreme Court: Two New Institutions put to the Test by Elections”, in: Thibon, Ndeda, Fouéré and Mwangi, Kenya’s Past as Prologue: Voters, Violence and the 2013 General Election. Nairobi: Twaweza Communications.

Journal Articles

Akech, Migai and Kameri-Mbote, Patricia. 2012. “Kenyan Courts and Politics of the Rule of Law in the Post-Authoritarian State”, East African Journal of Peace and Human Rights Vol. 18 No. 2, pp. 1-32.

Barkan, Joel D. 1993. “Kenya: Lessons from a Flawed Election”, Journal of Democracy Vol. 4 No. 3, pp. 85-99.

Bingham, Tom. 2007. “The Rule of Law”. Cambridge Law Journal Vol. 66 No. 1, pp. 67-85.

Boies, David. 2006. Judicial Independence and the Rule of Law. Washington University Journal of Law and Policy 22, pp. 57-70.

Bufford, Samuel L. 2007. “Defining the Rule of Law”. Judges Journal Vol. 46, pp. 16- 47.

Chege, Michael. 2018. “Kenya’s Electoral Misfire”. Journal of Democracy Vol. 29 No. 2, pp. 158-172.

Craig, Paul. 1997. “Formal and Substantive Conceptions of the Rule of Law”. Public Law, pp. 467-487.

Ellis, Mark. 2010. “Toward a Common Ground Definition of the Rule of Law incorporating Substantive Principles of Justice”. University of Pittsburgh Law Review Vol. 72, pp. 191-215.

Fallon, Richard H. 1997. “’The Rule of Law’ as a Concept in Constitutional Discourse”. Columbia Law Review Vol. 97 No. 1, pp. 1-56.

Hamwoy, Ronald. 1971. “Freedom and the Rule of Law in F. A. Hayek”. Il Politico Vol. 36 No. 2, pp. 349-377.

Harrington, John and Manji, Ambreena. 2015. “Restoring Leviathan? The Kenyan Supreme Court, Constitutional Transformation, and the Presidential Election of 2013”. Journal of Eastern African Studies Vol. 9 No. 2, pp. 175-192.

Meyerson, Denise. 2004. “The Rule of Law and the Separation of Powers”. Macquarie Law Journal Vol. 4, pp. 1-6.

Mutua, Makau. 2001. “Justice under Siege: The Rule of law and Judicial Subservience in Kenya”, Human Rights Quarterly Vol. 23 No. 1, pp. 96-118.

O’Connor, Sandra Day. 2003. “Vindicating the Rule of Law: The Role of the Judiciary”. Chinese Journal of International Law Vol. 2, pp. 1-10.

Peerenboom, Randall. 2005. “Human Rights and the Rule of Law: What’s the Relationship?”. Georgetown Journal of International Law Vol. 36, pp. 809-945.

Shah, Seema. 2018. Unpublished Article.

Singh, Chanan. 1965. “The Republican Constitution of Kenya: Historical Background and Analysis”. The International and Comparative Law Quarterly Vol. 14 No. 3, pp. 878-949.

Stein, Robert. 2009. “Rule of Law: What does it mean?”. Minnesota Journal of International Law Vol. 18 No. 2, pp. 293-303.

Stewart, Iain. 2004. “Men of Class: Aristotle, Montesquieu and Dicey on ‘Separation of Powers’ and ‘The Rule of Law’”. Macquarie Law Journal Vol. 4, pp. 187-223.

Waldron, Jeremy. 2002. “Is the Rule of law an Essentially Contested Concept?”. Law and Philosophy Vol. 21 No. 2, pp. 137-164.

Thesis

Muigai, Githu. 2001. Constitutional Amendments and the Constitutional Amendment Process in Kenya (1964-1997): A study in the politics of the Constitution. PhD Thesis. University of Nairobi.

Oseko, Julie Ouma. 2011. Judicial Independence in Kenya: Constitutional Challenges and Opportunities for Reform. PhD Thesis. University of Leicester.

Newspaper Articles

Asamba, Mercy, “How Raila Odinga reacted to Supreme Court ruling”, Standard Media, 1 September 2017, available at https://www.standardmedia.co.ke/article/2001253311/how-raila-odinga-reacted-to- supreme-court-ruling accessed 12th September 2018.

Binyon, Michael, “A triumph for the rule of law in Africa”, The Times, 2 September 2017, available at https://www.thetimes.co.uk/article/a-triumph-for-the-rule-of-law- in-africa-fgl8gg3l7 accessed 13th August 2018.

Bröll, Claudia, “Ungültige Wahl in Kenia - Alles zurück auf Los”, Frankfurter Allgemeine Zeitung, 1 September 2017, available at http://www.faz.net/aktuell/politik/ausland/ungueltige-wahl-in-kenia-alles-zurueck- auf-los-15179234.html accessed 13th August 2018.

Dörries, Bernd, “Recht gesprochen”, Süddeutsche Zeitung, 1 September 2017, available at https://www.sueddeutsche.de/politik/kenia-recht-gesprochen-1.3649176 accessed 13th August 2018.

Freytas-Tamura, Kimiko, “Kenya Supreme Court Nullifies Presidential Election”, The New York Times, 1 September 2017, available at https://www.nytimes.com/2017/09/01/world/africa/kenya-election-kenyatta- odinga.html accessed 13th August 2018.

Ghai, Yash Pal, “Separation Of Powers: A La Montesquieu Or The 2010 Constitution?”, The Star, 7 February 2015, available at https://www.the- star.co.ke/news/2015/02/07/separation-of-powers-a-la-montesquieu-or-the-2010- constitution_c1079944 accessed 15th September 2018.

Kegoro, George, “Supreme Court, and not lawyers, should be in control”, Daily Nation, 27 August 2017 (2017a), available at https://www.nation.co.ke/oped/opinion/Supreme-Court--and-not-lawyers--should- be-in-control-/440808-4072104-s4p0rb/index.html accessed 12th September 2018.

Kegoro, George, “Decision 2017 has given new lease of life to Supreme Court”, Daily Nation, 3 September 2017 (2017b), available at https://www.nation.co.ke/oped/opinion/Decision-2017-has-given-new-lease-of-life- to-Supreme-Court-/440808-4080674-gdstgg/index.html accessed 12th September 2018.

Kimeu, Samuel, “Disregard for the rule of law is taking country on wrong path”, Daily Nation, 15 February 2018, available at

35 https://www.nation.co.ke/oped/opinion/Disregard-for-the-rule-of-law/440808- 4306666-9f6xyoz/index.html accessed 12th September 2018.

Maina, Solomon K., “Kenya adheres to the rule of law”, The Japan Times, 24 November 2017, available at https://www.japantimes.co.jp/opinion/2017/11/24/reader-mail/kenya-adheres- rule-law/#.W3FHAPkzbIU accessed 13th August 2018.

Maina, Wachira, “Will 2013 presidential election petition ruling form precedence?”, Daily Nation, 27 August 2017, available at https://www.nation.co.ke/news/politics/Will-2013-petition-ruling-form- precedence/1064-4072298-5kwoliz/index.html accessed 12th September 2018.

Mbaku, John Mukum, “Kenya: Presidential Elections and the rule of law”, Brookings, 6 September 2017 available at https://www.brookings.edu/blog/africa-in- focus/2017/09/06/kenya-presidential-elections-and-the-rule-of-law/ accessed 12th September 2018.

Mwere, David, Lang’at, Patrick, Ochieng, Justus and Maina, Waikwa, “Stop the insults, Judiciary tells President Kenyatta”, Daily Nation, 3 September 2017, available at https://mobile.nation.co.ke/news/Stop-the-insults--Judiciary-tells-President- Kenyatta/1950946-4080730-item-1-15ixxws/index.html accessed 12th September 2018.

Odote, Collins, “Adherence to rule of law is never optional”, Business Daily, 11 February 2018, available at https://www.businessdailyafrica.com/analysis/columnists/Adherence-to-rule-of- law-is-never-optional/4259356-4300382-c4wvbf/index.html accessed 12th September 2018.

Okuoro, Sara, “NASA files petition challenging Uhuru’s win”, Standard Media, 18 August 2017, available at https://www.standardmedia.co.ke/article/2001251827/nasa-files-petition- challenging-uhuru-s-win accessed 12th September 2018.

Olick, Felix, “Jubilee tames Supreme Court, IEBC in amended law”, The Star, 29 September 2017, available at https://www.the-star.co.ke/news/2017/09/29/jubilee- tames-supreme-court-iebc-in-amended-law_c1643921 accessed 12th September 2018.

Ongoya, Elisha Z., “The Supreme Court was too casual in its ruling on presidential petition”, Daily Nation, 29 April 2013, available at https://www.nation.co.ke/oped/opinion/440808-1761860-beygw0z/index.html accessed 12th September 2018.

Onyango, Protus and Otieno, Rawlings, “Raila sworn in as the ‘people’s president’ as Kalonzo, Wetang’ula, and Mudavadi skip event”, Standard Media, 30 January 2018,

36 available at https://www.standardmedia.co.ke/article/2001267850/raila-sworn-in- as-the-people-s-president-as-kalonzo-wetang-ula-and-mudavadi-skip-event accessed 12th September 2018.

Opalo, Ken, “Kenya’s Supreme Court just declared the Aug. 8 elections invalid. Here’s what this means.”, The Washington Post, 5 September 2017, available at https://www.washingtonpost.com/news/monkey-cage/wp/2017/09/05/kenyas- supreme-court-just-declared-the-aug-8-elections-invalid-heres-what-this- means/?utm_term=.5a51ef4d1321 accessed 13th August 2018.

Putsch, Christian, “Damit könnte Kenia zum Vorbild für Afrika warden”, Die Welt, 1. September 2018 available at https://www.welt.de/politik/ausland/article168228938/Damit-koennte-Kenia-zum- Vorbild-fuer-Afrika-werden.html accessed 13th August 2018.

Shah, Seema, “Scrutinising of Election Results: What Didn’t Reach the Supreme Court Judges”, The Star, 13 April 2013 (2013a), available at https://www.the- star.co.ke/news/2013/04/13/scrutinising-of-election-results-what-didnt-reach-the- supreme-court_c761073 accessed 12th September 2018.

Shah, Seema, “Top court ruling fell short of expectations”, Daily Nation, 26 April 2013 (2013b), available at https://www.nation.co.ke/oped/opinion/Top-court-ruling-fell- short-of-expectations/440808-1759424-7x7stn/index.html accessed 12th September 2018.

Vidija, Patrick, “Uhuru re-elected with 98%, IEBC says after troubled election”, The Star, 30 October 2017, available at https://www.the- star.co.ke/news/2017/10/30/uhuru-re-elected-with-98-iebc-says-after-troubled- election_c1661198 accessed 12th September 2018.

Wanyeki, Muthoni, “Supreme Court spoke out of both sides of its mouth”, The East African, 20 April 2013, available at http://www.theeastafrican.co.ke/oped/comment/Supreme-Court-spoke-out-of- both-sides-of-its-mouth/434750-1753630-togfmvz/index.html accessed 12th September 2018.

Wanyoike, Waikwa, “Judgement on Raila’s Petition Lacks Constitutional Clarity”, The Star, 23 April 2013, available at https://www.the- star.co.ke/news/2013/04/23/judgement-on-railas-petition-lacks-constitutional- clarity_c765394 accessed 12th September 2018.

Wasunaby, Brian, “Judge Philomena Mwilu arrested at Supreme Court”, Business Daily, 28 August 2018, available at https://www.businessdailyafrica.com/news/Deputy-Chief-Justice-Philomena- Mwilu-arrested/539546-4732596-ojopn8z/index.html accessed 15th September 2018.

Worley, Will, “Kenyan President Uhuru Kenyatta vows to ‘fix’ judiciary after Supreme Court election annulment”, The Independent, 2 September 2017, available at https://www.independent.co.uk/news/world/africa/kenyan-president-uhuru- kenyatta-vows-fix-judiciary-supreme-court-election-annulment-a7925586.html accessed 12th September 2018.

Other Online Resources

Chebukati, Wafula, Transcript – Speech by Independent Electoral and Boundaries Commission Chairperson Wafula Chebukati at the Announcement of Presidential Results at Bomas of Kenya on August 11th 2017”, IEBC, 11 August 2017, available at https://www.iebc.or.ke/uploads/resources/IukcNTAE3I.pdf accessed 12th September 2018.

IEBC, Declaration of Results for Election of the President of the Republic of Kenya at the National Tallying Centre, 14 August 2017, available at https://www.iebc.or.ke/resources/?2017_Poll_Results accessed 12th September 2018.

Kenyatta, Uhuru, Transcript – President Uhuru Kenyatta’s statement on the Supreme Court decision, The Presidency, 1 September 2017, available at http://www.president.go.ke/2017/09/01/transcript-of-president-uhuru-kenyattas- statement-on-the-supreme-court-decision/ accessed 12th September 2018.

Odinga, Raila, Transcript – Kenya’s Next Test: Democracy, Elections and the Rule of Law, Chatham House, 13 October 2017, available at https://www.chathamhouse.org/event/kenya-s-next-test-democracy-elections-and- rule-law accessed 12th September 2018.

Africa-EU Relations: A Partnership of Equals?

Angelique Umugwaneza

1. Introduction

Migration seems to constitute a dividing issue between nations and between continents. This is demonstrated by the attempt from Europe to construct walls around itself: the deal between the EU and Turkey; the erection of high fences around the Spanish enclaves in Morocco; the installation of sophisticated surveillance systems in the Euro-Mediterranean region; the Italian Coast Guard, etc. Who builds these walls? And does this take place with the cooperation of those affected by the walls? In 1987, it was US President Ronald Reagan, who in his West Berlin speech pronounced: “Mr. Gorbatjov, tear down this wall”. Today it is US President Donald Trump who shouts: “Build that wall”. Times change, but then and now, power seems to be a crucial factor. The Soviet economy weakened, and the wall between East and West had to go away. It remains to be seen whether the wall between Mexico and the United States will become a reality: it depends on position of power, but the first small steps have been taken. And then to the wall between Europe and Africa. Is this also a matter of power? Or have the Africans and the Europeans, in cooperation, found solutions to the border issue, with which both parties are satisfied? Johan Galtung has a beautiful picture of conflict resolution: two boys who quarreled over an orange. Instead of throwing it away or beginning to fight for the possession by one party, they agreed to squeeze the juice out of it, drink it together, then plant the seeds to grow an orange grove, which they both can use in the future. Is it in such a spirit that Africans and Europeans have discussed the difficult migration issue?

Attempts have been made. Certainly, they are still being made. Such attempts started with the adoption of a “Joint Africa-EU Strategy” (JAES), which the African Union (AU) and the European Union (AU) agreed upon during a Summit in Lisbon in 2007. It was adopted as the strategy for both organizations to address issues of common concern, including the issue of migration (JAES, 2007: 3). More importantly, the JAES emphasizes a partnership of equals between the two continental organizations (ibid.: 4). The adoption of the JAES was met by both optimistic and skeptical views when it came to its impact on the future relations between the two continents. The positive view argued that the JAES represented a paradigm shift in the relations, a reversal of events, in the sense that relations between the two continents historically had been asymmetrical (Mangala 2013). More importantly, the JAES was seen as retaining the potential to lead to a growing development of joint policies and approaches, contrary to the pre-JAES era which had been characterized by the formulation of unilateral policies for Africa on the part of the EU (ibid. 2013: 8). It therefore represented an invention of new relations.

From a skeptical point of view, the JAES is yet another excuse for continuing the already existing asymmetrical power relations (Hansen & Jonsson, 2011). According to this view, it is not the first time Europe tries to establish a “partnership of equals” with Africa. Such partnerships, however, have quickly been transformed into a geopolitical relationship that has benefited only one party (Hansen & Jonsson, 2011; Farrell, 2005). The skeptics therefore consider the JAES part of the “business as usual” modus operandi, and expect it to bring no change in the fundamental relationship.

This dissertation is an inquiry into the implementation of the JAES. It seeks to examine whether a partnership of equals has taken place between two continents having a long history of highly unequal relations behind them. However, by covering eight areas of cooperation, the JAES deals with a complex web of relations that this dissertation would not be able to cover. As such, the dissertation will be limited to the study of the relations concerning migration. Concretely, it asks the question: To what extent does AU-EU migration management reflect a partnership of equals?

To answer this question, the dissertation will look at the extent to which the implementation of the Partnership on Migration, Mobility and Employment (PMME), which is part of the JAES, meet the aspirations of each party. This will be done through a close examination of the political dialogue that has taken place between the two partners under the JAES, the decisions that have been made, and the way these have been carried out. The dissertation will use a desk-based research methodology, meaning the reliance on available written material produced on AU- EU relations on migration. This is seen as an appropriate methodology as this is a study of political outcomes.

The dissertation is structured in the following manner. The first section will clarify some concepts and present the methodology of the dissertation. The second section establishes the context for the AU-EU relations. The third section will discuss the theoretical approach. The forth section will apply the theoretical approach to analyze the extent to which the implementation of migration relations reflects a partnership of equals. Finally, a conclusion will be drawn.

2. Concepts clarification and methodology

As indicated in the title, this is a study of Africa-EU relationship under the JAES. The JAES covers eight areas of relations: 1) Peace and security; 2) Democratic governance and human rights; 3) trade, regional integration and infrastructure; 4) Millennium development goals; 5) Energy; 6) Climate change; 7; Migration, mobility and employment; 8) Science, information society and space. A study covering all of them would however not be feasible for this dissertation. Although it recognizes that these relations are interconnected, this dissertation will focus on the part of Africa- EU relations that concern migration. In the JAES, these are implemented through the Partnership on Migration, Mobility and Employment (PMME). First, this dissertation will look at, and analyze the policy documents concerning migration management covering the time period from 2007 until now. Then it will look at the implementation of the policies.

The implementation of Africa-EU migration relations could be tackled from different angles. For instance, some have studied Africa-EU partnership on migration from a legal perspective, to understand the implications this has for international conventions such as the Geneva Convention (Parkes, 20187: Koenig, 2017; Betts & Milner, 2007). Others have studied the academic implications of the link made between migration and other societal phenomena such as security or development or the combination of the two (Raineri & Rossi, 2017; Venturi, 2017). While all the angles are relevant, this dissertation will be limited to the study of political processes, policy decisions, and their implementation. The objective is to gauge whether these live up to the practice of a partnership of equals. The term migration is used to refer to the migratory movements leaving Africa with the EU as their destination. African migration to or in the EU can be either regular or irregular. Regular migration falls within the Schengen Code which provides the conditions for entry in the EU applying to nationals of non-EU countries, including the possession of valid documents (EU, 2006). Irregular African migration, on the other hand, often enters the EU using the Mediterranean as the gateway for reaching the European coast by boat. Visa overstay falls under the category of irregular migration. The EU deals with irregular migration through border surveillance and dialogue with third countries, hence, the idea of migration management. Migration management refers to cooperation on migration (political dialogue and policies) with countries of origin, transit, and destination (EUC, 2006). To carry out this study, this dissertation uses a desk-based methodology. It draws on both theoretical and empirical literature that has been produced on relations between Africa and Europe, and AU and EU. By bringing theory and empirical studies together, it will interpret the findings in order to answer the question under study.

3. Relations between Africa and Europe

The aim of this section is to set the context for the Africa-Europe relations that the JAES seeks to transform into AU-EU relations and a partnership of equals. Contemporary relations between Africa and Europe (up to 2007) can be traced back to the Rome Treaty in 1958 creating the European Economic Community (EEC). The presence of Africa in a European Treaty is closely linked to the colonial past. It is due to France, who obtained the necessary agreement from her five European partners that her colonies be granted preferential status under Part IV of the Treaty in terms of trade, aid and investment (Martin, 1982:228). Underlying this is the ideology of Eurafrica (Hansen & Jonsson, 2011: Martin, 1982: 223-226). From the interwar period up until the 1950s, nearly all of the visions and institutions working towards European integration placed colonial Africa´s incorporation into the European enterprise as a central objective (Hansen & Jonsson, 2011: 263: Martin, 1982: 228). Although Eurafrica is Eurocentric, it was explained as an association in which “we will work together to promote progress, happiness, and democracy in Africa” (ibid.) As such, the integration of Europe is bound up with a Eurafrican project (ibid).

This led to the creation of the Yaoundé Convention in 1964, which is an agreement between the original six founding members of the EEC and the 18 former, largely French colonies. These relations were subsequently criticized as being neo-colonial. Neo-colonialism was a term used to express the idea that colonial powers were engaging in the process of relinquishing control of their colonies even as they were actually evolving new strategies to maintain colonial influence in the face of popular demand for liberation (Gassama, 2008: 329). The most known criticism was pronounced by Nkwameh Nkrumah in his “Neo-colonialism: The Last Stage of Imperialism (1965) wherein he denounced the continuation of Europe´s colonialism in Africa. The creation of the Yaoundé agreement at a time where African leaders were seeking African Unity has been seen as an old colonial strategy known as “divide and rule” (Martin, 1982: 229). Yaoundé Convention as the framework for Africa-EEC relations was replaced by the Lomé Convention in 1975, mainly as a result of the EEC´s first enlargement and the need to make provisions for Britain´s former colonies (Gibb, 2000:461). It therefore extended the geographical coverage of the EEC´s ties with Third World from 18 to 46 African, Caribbean and Pacific (ACP) countries. Geographical coverage would further increase with EEC enlargement (Spain and Portugal) in the successive Lomé Conventions. One of the distinguishing characteristics of Lomé Conventions is the non-reciprocity criteria allowing ACP export duty free access to the European market while enabling the ACP states to maintain tariff barriers against European goods (ibid: 457). As such, it has been characterized as path breaking, as a partnership of equals, hitherto unknown among rich-poor global relations (Hewitt, 1993: 305). In spite of the seemingly favorable trade conditions, however, ACP countries failed to secure any noticeable increase in levels of development, and in many countries, growth had collapsed below levels that had prevailed during the 1960s (Farrell, 2005:268). There are at least two interpretations for this. One is the unbalanced nature of political dialogue and asymmetrical trading relationships (ibid.). The ACP group never had the necessary political weight to exercise influence (Farrell, 2005: 268). In terms of trade, the Lomé conventions involved asymmetries that locked Africa into a development model, in that it stabilized commodity prices while locking those produces into serving the European marked. The other view of the failure of ACP countries to reap the fruits of the Lomé conventions is attributed to the behavior of African countries that has been termed “collective clientelism”. It refers to a relationship in which a group of weak states combine in an effort to exploit the special ties that link them to a more powerful group of states (Ravenhill, 1985 22-23). This view, however, has been criticized for failing to fully appreciate the implications of the trade rules established in the conventions. Simply, they made it difficult for ACP countries to take full advantage of the seemingly favorable trade conditions (Parfitt, 1987). In this situation, the EEC used aid to compensate for disappointments by ACP states, and ensured minimum level of ACP interest in the Lomé Conventions by grants plus loans on easy terms (ibid. 728). The implementation of the principle of equality in partnership associated with the Lomé Conventions would further be hampered by the emergence of neoliberalism assuming a position of hegemony in the international political economy. Suddenly, Africa had to liberalize its markets which was seen, by Europe and International Financial Organizations, as the best tool to development (Hurt, 2010:161). This new approach became the backbone of the Cotonou Agreement that was signed between

42 the now EU and the ACP states in 2000, replacing the Lomé Conventions. The Cotonou Agreement, however, introduced measures that would substantially change the nature of the ACP-EU relations. While it emphasizes the principle of equality in the relations, it also noted the need for the differentiation of the ACP states (Hurt, 2010: 166). It therefore split the ACP block into six regional groups, justifying this on an increasing diversity in the level of development among the ACP states. This unilateral decision by the EU was collectively contested by the ACP block, but this had no effect, reflecting power imbalance. ACP states ended up being put under different trade regimes depending on whether they were categorized as Least Developed Countries or not (ibid. 166,170). By shifting away from treating the ACP as a bloc, the EU created regional economic blocks that are not aligned with the regional, geographically based blocks, already created by the Organization for African Unity (Farrel, 2005: 269). By fragmenting ACP, the Cotonou Agreement moreover hampered its negotiation ability as a group and thus its capacity to effectively engage EU on its interests. Again, this step by the EU has been characterized as the neocolonial “divide and rule” strategy (Sepos, 2013:271). Furthermore, for the first time in their cooperation, the EU now introduced political conditionality in its aid approach to ACP states, premising official development assistance on the implementation of democracy, human rights and good governance, and introducing the idea of sanctions on aid if these principles were violated (ibid: 171). The Cotonou Agreement therefore bluntly reflects EU´s preferences to the detriment of ACP´s preferences (Carbone, 2013:4). To sum up, this section has set the context for contemporary relations between Africa and Europe, at least in the postcolonial era and in the pre-JAES era. It highlighted that these relations have been centered around trade and development aid. These relations, however, have been highly asymmetrical and involved power imbalance. On this ground, the adoption of the JAES seems to be timely and highly relevant, given its promises to change this situation. The section below will present the JAES.

3.1 The Joint Africa-EU Strategy

Current Africa-EU relations are organized according to two different tracks. One is the Cotonou agreement briefly discussed above. The other is the Joint Africa-EU Strategy (JAES) adopted at the Africa-EU Summit in Lisbon in 2007. The former is formal in nature (Cotonou Agreement), and includes African, Caribbean and Pacific countries. It excludes North African countries whose relations with the EU have been dealt with through the European Neighborhood Policy. The JAES is informal and includes only countries on the African continent, including North African countries. All these relations are implemented concomitantly. However, it is the continent-wide JAES which is the focus of this study. In fact, the JAES aims to upgrade all the existing relations on the African continent to the continental level. Traditional relations between Africa and the EU as described above have come under pressure. One reason for this is the stiff competition for raw materials waged on the continent by emerging powers such as India, Brazil and China (Mangala, 2013: 7). Moreover, Africa as a continent, has registered significant economic growth, leading it to become an interesting partner for other international actors than the EU. The creation of the African Union (AU) in 2002 has moreover contributed to its institutional capacity which has increased its bargaining position on the international stage (ibid.5; Kotsopolous & Sidiropoulos, 2007). These factors have contributed to

43 change the strategic context in Africa. Instead of viewing Africa as an aid case, the EU has started to view it as a strategic partner (ibid:4). This was manifested by a series of events throughout the 2000s whereby the EU started to seek a continent-to- continent relationship. This led to the adoption of the JAES in Lisbon in 2007. As such, the JAES must be seen as a reinvention of the Africa-EU relationship, an attempt to give a new meaning to their traditional relations (Mangala, 2013:8). The vision of the JAES is “to take the Africa-EU relationship to a new, strategic level with a strengthened political partnership and enhanced cooperation at all levels” (JAES, 2006:2). The objective is to elevate the Africa-EU partnership to address issues of common concerns. To this end, the JAES commit both sides to treat Africa as one and upgrade the Africa-EU political dialogue to enable a strong and sustainable continent-to-continent partnership, with the AU and the EU at the centre. Moreover, the JAES commits both sides to promote holistic approaches to development processes. It states that the partnership will be based on a Euro-African consensus on values, common interests, and common strategic objectives. Fundamental principles such as African Unity, the interdependence between Europe and Africa as well as joint ownership and responsibility are to guide the new relations. The JAES especially expresses a desire to move away from a donor- recipient relationship to a partnership of equals, in the pursuit of common objectives. It promises to become the overarching policy framework that will operationalize the concepts of “one Europe” and “one Africa”. It covers, as mentioned above, eight strategic areas, among which the Partnership on Migration, Mobility and Employment (PMME). Against this background, the JAES was received with a great deal of enthusiasm. Its adoption in 2007 represented a moment of great historical significance in Africa-EU relations (Mangala, 2011: 4). Contrary to the unilateral approach by the EU, the JAES represents the emergence, for the first time, of a common strategy to address common challenges and to seek new opportunities (ibid.20). However, critical voices have remained skeptical, arguing that it is not the first time that agreements based on equality and mutual interest are made between Africa and the EU. Such partnerships have nonetheless quickly been transformed in a way that has benefitted only one party (Hansen & Jonsson (2011). It is therefore worth investigating the implementation of the JAES to assess how it has performed in terms of transforming the otherwise highly asymmetrical relations into a partnership of equals based on mutual interests.

3.2 The Africa-EU relations on migration

Africa-EU relations on migration is an old phenomenon. As in the case of trade and development aid, relations on migrations have also been criticized for being asymmetrical; they have been driven by the EU and largely based on its interest and needs (Hansen & Jonson, 20011: Lavenex, 2006; Kartyotis, 2007; Pinyol-Jimerez, 2011). However, under the JAES, the aim of the PMME is to bring transformation in Africa-EU migrations relations.

Africa-Europe migration management involves two continents, each with its own migration realities. However, the situation is such that it is Africa that is the overwhelmingly sending continent while Europe is the receiving continent (Mangala, 2013: Hansen & Jonsson, 2011). Whether legal or illegal, African migration to the EU

44 was not seen as a problem until recently (Pinyol-Jimérez, 2011; Koenig, 2017). This situation changed throughout the 90´s, and was further amplified by the events of 9/11 and the Arab Spring in 2011 (ibid.: Kartyotis, 2007: Fakhoury, 2016). Increasingly, migration has come to be seen as a societal and cultural threat, and linked with security issues such as organized crime, terrorism and Islamic fundamentalism (Lavenex, 2006:330). As such, EU´s response has been military in nature (Pinyol-Jimérez, 2011; Kartyotis, 2007). The externalization of EU migration control policy to non-EU member states has been part of this agenda. Externalization is a political phenomenon whereby the EU engages countries of origin and transit in the control of migration flows (Lavenex, 2006:330). It seeks not only to prevent non-EU nationals from leaving their countries of origin, but also to ensure that if they manage to leave, they remain as close to their country of origin as possible, or in any case outside of the EU territory (Aubarell, 2011:13). Furthermore, it includes measures that ensure that if migrants do manage to enter the EU, they will be repatriated or removed to “safe third countries” (ibid). The externalization of migration policy has taken two forms: border control on the one hand and readmission agreements, on the other hand. In so far as these policies and measures are aligned only with the interests of the EU to keep migrants outside of its borders, however, their implementation in third countries has had to rely on coercion in order for them to be implemented. This is why the EU in 2002 decided that each future EU association or cooperation agreement with a third state should include a clause on joint management of migration flows and compulsory readmission in the event of illegal migration (Lavenex, 2006:330). To ensure compliance with such an approach on the part of third states, the EU moreover decided that inadequate cooperation in this area could hamper further development of relations with the EU (ibid: 342). For Africa, the first attempts to apply this approach was made in article 13 of the Cotonou Agreement where migration was incorporated into development policy. On this ground, the EU has been accused of building a “Fortress Europe” (Parkes, 2018: 9). EUs migration management approach, however, has been contested by African countries, who have found it too narrow and insufficient if migration challenges are to be effectively responded to. Indeed, it has been made plausible that illegal migration in the EU is linked to its overly restrictive policy on migration (Korvensyrjä, 2017: 192: Parkes 2017). The African point of view has been expressed in the AU commission (AUC)´s two policy papers, namely, the Migration Policy Framework for Africa and the African Common Position on Migration and Development, both adopted in 2006. They both emphasize the complexity of the migration phenomenon and pledge to approach it from a comprehensive approach. Seeing migration as a challenge, the AUC nonetheless articulates that well-managed migration has the potential to yield significant benefits to origin and destination states. Mismanaged or unmanaged migration, on the other hand, can have serious negative consequences for states and migrants´ well-being (AUC, 2006: 3). Moreover, contrary to the EU that views migration as a security threat, the AU links well-managed migration with the socio-economic development of the continent. One key benefit of migration identified by the AU is related to remittances sent by migrants back to their home countries. According to the World Bank estimates1, Sub-

1 World Bank Migration and development brief, 2017. http://pubdocs.worldbank.org/en/992371492706371662/MigrationandDevelopmentBrief27.pdf

Saharan African migrants sent home 34,1 billion dollars in remittances flows in 2017, while Middle-East and North Africa received 51.8 billion in the same year. The AU therefore operates with a positive view on migration. The need for a comprehensive approach to migration expressed by the AU was also felt by the EU in the 2000´s when its securitized migration policies and measures in Africa showed their limits. These were displayed by the events of Ceuta and Melilla in 2005-6 in which dozens of African migrants lost their lives while trying to overcome the fences of the Spanish enclaves to access the EU territory. They contributed to highlight that physical barriers have little impact on illegal migration (Mangala, 2013:202). It is following these events that the EU started to change its restricted approach to African migration. The new approach considers all forms of migration, that is, legal, illegal, refugees and asylum (Lavenex, 2006: 333). The search by both parties for a comprehensive approach to migration management culminated into the first Euro-African Ministerial Conference on Migration and Development that took place in Rabat in July 2006. The underlying objective of this political dialogue is that such a platform will allow a joint response to the challenges caused by irregular migration flows, and identify opportunities for cooperation (Abebe, 2017: 14). The PMME under the JAES should therefore be seen as a reflection of the two parties´ converging interests in managing migration from a comprehensive approach.

The PMME is one of the eight partnerships under the JAES. It commits Africa and the AU to manage migration in a comprehensive way, by pursuing and implementing policies and programs to address all the relevant dimensions of migration, including circular migration (JAES, 2007: 17)2. Circular migration is a particular form of migration prevalent in Africa. It means non-permanent movements in circuit within and across national boundaries, that begin and (must) end at “home” (Adepoju, 2008:14). It is now proposed in an intercontinental context. Through the PMME, the parties seek to harness the positive impacts of migration and mobility, while also addressing the downsides of it. A sharp distinction is made between legal and illegal migration in the PMME. Concerning the former, the parties state that joint efforts will aim to better manage legal migration and mobility with a view to supporting the socio-economic development of both countries of origin and countries of destination (JAES, 2007: 17). Illegal migration, on the other hand, is portrayed as negative, and both the AU and the EU pledge to jointly combat it through several coercive measures. Overall, a strong link is made between migration and development.

It is the desire to tackle the issue of migration from a comprehensive approach and on the basis of a partnership of equals that motivated the adoption of the JAES and thus the PMME. This essay will go on to look for a theoretical framework that will help to assess the extent to which this has been carried out. 4. Theoretical framework

Looking at the framing of the JAES, one would expect to see a political partnership between Africa and the EU in which the concerns of each party are taken into account on an equal footing. Given the colonial past between the African and European continents, however, this dissertation expects to see some past practices in the new relations. In spite of the JAES, it seems reasonable to expect both patterns of

2 http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/er/97496.pdf

46 continuity and change. It is this assumption that underlies this theoretical framework.

4.1 Realism

In his attempt to explain world politics, Kenneth Waltz (1988) uses a systemic approach that makes a sharp distinction between two levels of the world system: a unit level and a systems level. The unit level is represented by the state. The system, on the other hand, has the states as its constituents. While this neorealism branch of realism views states as unitary actors, the same cannot be said for the systems level. This is because realism in general views anarchy as the essential quality of the international system. Anarchy means the absence at the systems level of a central monopoly of legitimate force (ibid.). One important implication of anarchy is that states are driven by the principle of self-help (ibid: 624). Their self-interested behavior is moreover reinforced by the fact that states are sovereign, meaning that they are able to make choices autonomously. In explaining international politics, however, neorealism places less emphasis on the state. Rather, it emphasizes the structures, defined as the relative distribution of power among the states. They are determined by the dominant states and have an influence on states interactions with each other. Systemic structures more or less determine actions by the states. From a neorealist point of view, therefore, AU-EU relations under the PMME can be expected to be driven by the neorealist principle of self-help by powerful states who, from a self-interested perspective, will determine the rules governing the relations in a way that advance their interests to the detriment of everyone else´s interests.

4.2 Interdependence

Neorealism explains international politics in terms of self-interest under conditions of anarchy. Anarchy, however, is not the only feature of international politics. According to Helen Milner, interdependence is equally a central feature of international politics. Both anarchy and interdependence exist independent of each other (Milner, 1991: 82). Interdependence appreciates cooperation among actors in the international system (Keohane & Nye 1977; Moravcski, 1997). The central argument for interdependence is that actors are not only linked but also that their actions and attainment of their goals are conditioned by other actors´ behavior (Milner, 1991:83). In world politics, interdependence refers to situations characterized by reciprocal effects among actors in different countries (Keohane & Nye, 1977: 8). One central meaning of interdependence is strategic interdependence (Milner, 1991: 82). It denotes a situation in which the ability of one participant to gain his ends is dependent to an important degree on the choices or decisions that the other participant will make. Strategic interdependence assumes mutual costs that the involved parties face from ending the relationship. Simply, each actor can no longer obtain some values he/she wants without the cooperation of the other actor. This way of seeing international relations notes some interesting attributes about their dynamics, with important implications on the value of interdependent

47 relationships. Interdependence attributes little importance to the nature of the relationship involved. Whether the relationship is hierarchical, unequal or unbalanced is not important (Milner, 1991: 82). What matters is that interdependence involves gains for participating parties and losses for both parties if the relation is ended. Simply put (Milner, 1991: 83): an interdependent situation is one in which an extensive division of labor exists so that each party performs a different role and thus has complementary interests. Everyone gains from such a situation; it is a positive sum-game. It is therefore the relative gains rather than the absolute gains that are emphasized. From this point of view, AU-EU relations on migration are valuable, such that they are worth pursuing for both parties if they are to obtain their goals in this area.

4.3 Constructivism

Constructivism emphasizes the importance of identities in international relations. Contrary to neorealism, constructivism holds that state identity and state interests cannot be known à priori: self-help and power politics do not follow either logically or causally from anarchy (Went,1992: 394). Identities and interests are a result of interactive processes through which they are formed (ibid. 398). Interactions between the states are therefore key to the development of both identities and interests. Such interactions involve processes of signaling, interpreting and responding (ibid. 405). Through interactions, actors acquire knowledge about each other, which allow them to anticipate each other´s behavior. Constructivism therefore argues that social practices is key to understanding world politics (Hopf, 1998: 177). This is because social practice authorizes power, disciplines interpretation, and polices new interpretations of reality (ibid.179). In so doing, social practices could establish stable structures and thus produce predictability in behavior (ibid). Change in world politics is very hard when such power has materialized (Wendt, 1992; Hopf, 1998: 180). Relative stability arises because social relations become objective social facts that reinforce certain behavior and discourage others (Wendt, 1992:411). Moreover, change may be inhibited by actors´ interests in maintaining relatively stable identities (ibid.). Thus, intersubjective understandings and expectations may have a self-perpetuating quality, constituting path- dependencies that new ideas about self and other must transcend (ibid.). In the study at hand, the question is whether colonial practices between Africa and Europe have been overcome in order to create a new identity and a new set of interests. While the JAES holds promises to do that, it remains to be seen whether its implementation has actually allowed for such a change.

4.4 Colonialism

A last approach to consider in this discussion is colonialism. This approach distinguishes itself from the other approaches considered so far by its emphasis on structures. From this view, the world is structured according to a center and periphery logic (Galtung, 1971:81). This world structure operates with a specific type of dominance, notably, imperialism. Imperialism is one way in which a nation may dominate another (ibid. 83). As such, it is characterized by structural inequality. One key characteristic of imperialism is its relative stable patterns. This is due to the nature of the mechanisms that establishes it. As Galtung has argued, colonialism did

48 not arise just like that. It was preceded by a series of activities in which ties between center and periphery were created leading it to become firmly entrenched. Such ties are difficult to change. Concretely, colonialism is a situation whereby the sovereignty of a state and a people are alienated for the benefit of a foreign power. The political essence of colonialism is a direct and overall subordination of one country to another on the basis of state power being in the hands of the dominating foreign power (Woddis, 1987:14). It is a state of affairs in which colonial power puts itself in a position to decide which policies are best suited to the interest of the colonies and the indigenous people, and to firmly control the decision-making machinery, both national and local, designed to implement these policies (Martin, 1992). Although colonialism was presented in positive terms, as an undertaking aimed at the advancement of colonies, it was used to politically dominate and economically exploit them in a way that developed Western European societies while it underdeveloped the colonies. One key consequence has been that of the colonies being put in a situation of complete dependency on the metropole (ibid.). Dependency refers to a state of subordination (Duvall, 1987: 61-62). It is a relationship in which colonies are supported by the metropole or must rely upon them for the fulfillment of their needs. For the colonies, relations in dependency are difficult to break, because breaking them is too costly (Baldwin, 1980: 481).

African countries gained their formal independence and have functioned as such since the 1960s. However, many have argued that independence did not lead to change in the relations between the two continents. In spite of formal recognition of political independence, emerging countries became the victims of indirect and subtle form of domination by political, economic, social, military and technical means (Martins, 1982:227). As such, colonialism survived, hence the idea of neocolonialism. The pan-African leader Nkwame Nkrumah (1965) saw neo-colonialism in the following way: “The essence of neocolonialism is that the state which is subject to it is in theory independent and has all the outward trappings of international sovereignty. In reality, its economic system, thus its economic policy is directed from outside”. One of the main strategies for neocolonialism is to make sure that the dominated countries do not have too much direct, horizontal contact among themselves, particularly not economic interaction, trade, etc (Galtung, 1973:42). Contact with the outside world should be vertical towards the center rather than horizontal, among the periphery countries (ibid.). In common parlance, this has been termed a “divide and rule” tactic. In order to continue their domination, moreover, European powers have relinquished political power to a national bourgeoisie whose mission has nothing to do with transforming the nation but to function as an intermediary between the national periphery and the capitalist center (Fanon, 1965:152).

Neocolonialism is justified by the so-called Eurafrica ideology. This ideology was held by metropolitan interest groups with a stake in the colonial venture (Martin, 1982: Hansen & Jonsson, 2011). Eurafrica operates with two concepts: complementarity and interdependence. It views the fate of Africa and Europe as naturally and inextricably linked at the political, economic, social and cultural levels (Martins, 1982: 222). The argument is that Europe needs Africa’s natural resources

49 while Africa needs Europe’s technology. One way in which the Eurafrican ideology seeks to uphold the principles of interdependence and complementarity between the two continents is the absorption of Africa by Europe (ibid.). What makes the ideology of Eurafrica neocolonial, however, is that it was designed by Europeans unilaterally, and imposed on the Africans, just in the same way as the colonial arrangement decided by Europeans at the Berlin Conference (1984-5) was imposed on Africans. In this way, neocolonialism enables the metropoles to continue to dominate the newly independent nations, politically, militarily, economically and culturally (ibid: 227).

4.5 Theoretical Summary

This section considered some important approaches to international relations: neorealism, interdependence, constructivism and colonialism/neocolonialism. Neorealism could be a powerful explanation of AU-EU relations given the assumption that anarchy leads states to pursuit their self-interests. Given the colonial past between Africa and Europe, however, it could be assumed that structural rather than state system forces are more at play. Moreover, the JAES can be seen as a reflection of AU-EU interdependence. In a relationship involving highly asymmetrical relations, however, the implementation of interdependent relations could avail themselves difficult. The fear is that interdependence easily could be overridden by power. Furthermore, the constructivist approach argument that relations can be made and remade if parties want that to be the case, is appealing. However, it could be assumed that identities in these relations are so crystalized that they could be difficult to overcome. Neocolonialism, by emphasizing unequal structures in the international system, would expect old colonial relations to continue, in their new forms, into future relations. This is because neorealism implies relatively stable patterns.

5. The implementation of the Partnership on Migration, Mobility and Employment

The implementation of the Africa-EU migration relations has taken place under very changing circumstances. It seems that these relations have changed following the migration situation. Central to this is what has been referred to as the migration crisis in 2015 when more than one million refugees and migrants fleeing war, persecution and poverty in the Middle East and Africa crossed into Europe. From the AU´s side, however, this was not in the same way seen as a crisis, because some of its member states such as Uganda and Ethiopia have long been host to millions of displaced people (ICG, 2017:8). Nonetheless, refugee inflows did not only challenge the effectiveness of EU policy when it comes to the protection of its external border. It also boosted support for populist and Eurosceptic parties which threatened the very existence of the EU, intensified by the decision of the UK to leave the EU. Under these circumstances, EU political leaders reacted from a sense of urgency in order to stop the inflows (Vimont, 2015:9). A deal stroke with Turkey was instrumental to closing down the Eastern Mediterranean route, and thus significantly reducing the number of arrivals into EU from that route. However, migrants continued to arrive,

50 mainly from Africa, on the Central and the Western Mediterranean routes, in perilous conditions that have transformed the Mediterranean Sea into an open cemetery. Faced with this situation, the EU has recycled the Turkey model on African migration which has been widely criticized (Vimont, 2016: Parkes, 2017). It has been argued that the response on Eastern Mediterranean migration was motivated by a sense of urgency and a short-term fix which allowed the EU to regain control on its external borders on that side. Urgency, however, is not a strategy (Vimont, 2015:9). Long-term objectives cannot be pursued through responses shaped by a sense of urgency. However, as it will be shown shortly, this is exactly the model the EU has applied to Africa. The following will look at the implementation of the PMME from a political dialogue point of view, keeping in mind the significance of the migration crisis in the EU.

5.1 The political dialogue on migration and the Valletta Summit in 2015

Since the conclusion of the JAES, the issue of migration has taken greater and greater prominence in AU-EU relations. This came to light at the 2014 triannual JAES Summit in Brussels, where a separate declaration on migration was made by the two parties. The prominence of this issue was highlighted again when the EU convened 35 African countries to an ad hoc Summit under the JAES in Valletta in 2015, having migration as the single issue on the agenda. An ad hoc Summit on migration was also held between key EU countries and selected African countries in Paris in 2016, resulting in a declaration. Migration was again part of the JAES triannual Summit held in Abuja in 2017, which adopted yet another separate declaration on migration. However, it is the Valletta Summit that has shaped the development of the current relations on migration between AU and EU. The Valletta Summit was meant to define the priorities of the PMME amid a migration crisis as seen from EU´s perspective. Surprisingly, the Valletta made no progress in bringing the two parties to agree on common priorities on migration. Indeed, critiques already in 2007 asked whether the two parties actually were frank in their discussions when they decided to adopt the JAES/PMME (Kotsopoulos & Sidiropoulos, 2007; ICG: 2017). At the Valletta Summit, the position taken by the EU is one in which migration is a threat to its internal security. In conformity with this framing, the EU migration objective is to stop illegal migration to its territory (Knoll & Weijer, 2016:7; Bossuyt, 2017:11). For the AU, migration is an opportunity for livelihoods and development. As such, its goal is for migration to be well-managed and facilitated (ibid.). Thus, there are two partners here, one wanting migration stop, another wanting migration to be facilitated. These positions are important, because they lead to different strategies to migration management. In conformity with its narrative, the EU argued for containment strategies, e.g. combatting irregular migration and smuggling of migrants, improved border management, strengthening surveillance and counterterrorism mechanisms, and expanding cooperation with recipient countries on return and readmission of returnees (Knoll, 2016:7). The AU on the other hand, defended strategies aiming to establish mechanisms to enhance possibilities for legal migration, both internally in Africa and intercontinentally. Their insistence on these positions and policy solutions by each party resulted in an impasse. On the one hand, the securitized approach adopted by the EU was challenged by the AU whose chairperson pronounced that “Migration in search of safety or a better live is as old

51 as humanity itself, so there is no part of the world that can be fortress: we should be open to legal migration” (Louw-Vaudrtan, 2015). As such, the AU presents migration as a natural component of their societal tradition, which, as explained before, plays an important economic role. The AU therefore rejected the measures for migration management suggested by the EU, such as the establishment of processing centers for failed migrants, the strengthening of reception capacity in African countries, the acceptance of laisser-passer documents issued by EU member states and carried by failed migrants, and the utilization by the EU of a “more for more principle” implying a link between development aid to agreements on readmission, stronger border control, or other actions not directly associated with poverty reduction (Knoll, 2016:7). The EU, on the other hand, did not meet the AU´s expectations to commit to legal migration in the form of increased resettlement, humanitarian visas, extended family reunification, sponsorship programs, and educational sponsorships (Knoll, 2016:15). Africa´s priorities in legal migration and preference for voluntary return received only minor concessions (the EU only committed itself to students and researchers). So, it is the disagreement about the link between migration and security that led to this situation.

The Valletta Action plan that came out of this Summit establishes five priority areas of cooperation: 1) Addressing the root causes of irregular migration and forced displacement; 2) Promoting legal migration and mobility; 3) Reinforcing protection and asylum policies; 4) Fighting against human trafficking and migrant smuggling; and 5) Strengthening cooperation to facilitate return and reintegration of irregular migrants. While this Action Plan looks broad, it does not provide concrete measures for legal migration opportunities in its content, although the AU expected a clear EU commitment to this matter. The emphasis is put more on migration management (migration containment and control, policy reform for returns, population registration systems, border management, etc.) than fighting the root causes of illegal migration. It is therefore skewed towards EU´s priorities (Friends of Africa, 2017: Knoll, 2016: 19). During this Summit, the EU launched the European Union Emergency Trust Fund (EUTF), with an initial €1.8 billion, for the implementation of the Action Plan. The Valletta Summit has by African countries been seen as representing only EU interests (Friends of Europe Report, 2017: 11-14). The narrow approach adopted in the Valletta outcomes has been narrowed down even further in the implementation of its Action Plan. This has been driven by the adoption by the EU of the “new Framework for Partnership with third states”. The following section will address this new EU policy initiative.

5.2 From Dialogue to monologue: the new Framework for Partnership with third countries

As presented above, the Valletta summit crystalized differences in the views on migration held by both the AU and the EU. This is surprising because the PMME is built on a commitment to jointly manage migration from a comprehensive approach. It displayed an EU´s insistence on avoiding migration, on the one hand, and an AU´s determination to defend regular migration on the other hand. As one author has predicted, if no effort is made by either side to find a way to connect these two narratives, the risk is that they will run in parallel without any meeting of minds (Vimont, 2016: 21). It can be argued that the aftermath of the Valletta has confirmed this fear. Ultimately, the Valletta Summit signaled the reversal of these relations to

52 previous EU practices in the area of migration management, that is, unilateralism both in decision-making and in the implementation of policy decisions.

The EU resolution to abandon continent-to-continent relations with the AU in the field of migration became apparent in June 2016 when it established “a new Partnership Framework with third countries3” (EUC, 2006), that is, a partnership between the EU and individual states. Under this framework, the EU agreed with itself on tailoring “compacts” with third countries, with the aim to sustainably manage migration flows. The Partnership Framework is a policy document in which the EU interests are laid out in brutally clear terms (Lehne, 2016). It represents the most openly interest-driven of the EU´s migration initiatives (Castillejo, 2017: 6). This Partnership Framework was motivated by a sense of urgency to curb migration flows. It nonetheless questions the seriousness of the EU when it comes to the professed objective of the JAES/PMME. In its ambitions to control migration, the EU seeks both short and long terms objectives. The short-term objectives are: 1) to save lives in the Mediterranean Sea; 2) to increase the rate of returns to countries of origin and transit; 3) to enable migrants and refugees to stay close to home and to avoid taking dangerous journeys. The long-term objectives are to increase its efforts to address the root causes of irregular migration and forced displacement and to provide capacity building to the host communities and relevant institutions. Both types of objectives, however, are concerned with keeping migration out of the EU and sending them back, as well as making sure they stay home in their home countries. In order to achieve these objectives, the Partnership Framework reintroduces measures that the African countries had rejected for years, namely, negative and positive conditionality (EUC, 2016:8) or what has come to be widely known as a “carrots and sticks” approach. It states that relations between the EU and third countries will be guided by the ability and willingness of the countries to cooperate on migration management, notably in effectively preventing irregular migration and readmitting irregular migrants. Cooperation on readmission and return are set to be key test of the partnership. More importantly, the Partnership Framework promises reward for those countries cooperating on migration and negative consequences for those who refuse to cooperate (ibid:9). Thus, establishing cooperation on migration as the conditionality for accessing EU assistance, this framework subsumes all relations (development aid, investment, trade, etc.) migration management, and thus breaks with previous international development cooperation practices with third countries (Concord, 2017). Furthermore, this breaks with the JAES, where partnership on migration is just one among cooperation issues. Migration now figures as the overarching framework for cooperation. As noted previously, it is not the first time that the EU introduces conditionality in its relations with Africa. Conditionality featured already in the Cotonou Agreement between the EU and ACP-countries, where especially democracy and human rights were more emphasized. Concerning migration, its article 13 contains a readmission clause stipulating that: “each ACP or EU State shall accept the return of and readmit any of its nationals who are illegally present on the territory of a EU or ACP State, at that State´s request and without further formalities”. This clause was controversial however, given diverging African and EU interests on the issue of

3 Hereafter, Partnership Framework

53 return. As a result, it has not been implemented on the ACP group, but parties agreed to pursue dialogue on this issue at a bilateral level. The issue was taken up again during the revision of the Cotonou agreement in 2010, but no compromise was reached either, parties opting just to continue the dialogue in this area (Mackie, et al, 2018: 11). It was rediscussed at the Valletta summit, but also here, it was resisted by the AU, African states preferring voluntary returns. Return and readmission as condition for cooperation features now in the 2016 EU Partnership Framework. Here, it is adopted unilaterally, and meant to be imposed on African states as conditionality for accessing financial assistance. Moreover, while return and readmission agreements proposed under the Cotonou agreement concerned only the nationals of signatory countries (first generation conditionality), conditionality under the new migration framework includes readmission of own nationals as well as those from other third-states who have transited in that country before entering the EU (second generation conditionality) (D´Humilieres, 2018:6). Thus, even though conditionality is not new, the Partnership Framework has confirmed it to a greater degree (ibid). In seeking to implement its own migration agenda on the African continent, the EU in this policy document highlights the role its member states could play. As it states (EUC, 2016: 8): “The special relationships that Member States may have with third countries, reflecting political, historic and cultural ties fostered through decades of contacts, should also be exploited to the full for the benefit of the EU… The Member States with the most developed bilateral relationships with a particular partner country should be fully involved in the EU's discussions with it”. Some have read this as an attempt by the EU to ask members states to use their history of imperialism and exploitation to ask African states to sort out an EU problem4. This policy framework therefore seeks bilateral relations preferably between the EU and Africa with a more enhanced participation of EU member states. Political and diplomatic effort by both the EU and its member states is to be coordinated to ensure a consistent message to priority countries so that they understand the importance the EU gives to migration-related issues (EUC, 2006a).

In spite of it being conceived in Brussels without the participation of the AU or African states, the Partnership Framework is presented as reflecting shared interests between the EU and its partners. Moreover, the EU does not provide any concrete measure to meet African states interests in enhancing legal migration. African countries are therefore identified as stakeholders, but only as implementers in exchange for “migration money” (Parkes, 2018). Finally, this document parcels Africa, on the basis of their migration profile, that is, whether they are countries of origin and/or transit. While the EUTF had identified 23 countries for the implementation of the Valletta Action Plan, the Partnership Framework identifies five counties as priority for the conclusion of the compacts: Nigeria, Niger, Senegal, Mali and Ethiopia. These countries were selected on the assumption that they contained low-hanging fruits to harvest (Parkes, 20017:85), meaning that engaging them on migration management would lead to quick wins with fast delivery to restrict migration flows (Friends of Europe Report, 2017: 11). However, bilateralism under this framework has now evolved to include other countries in Africa, which has taken place in a more ad hoc, fluid and lower profile manner (Castillejo, 2017: 7). Such is the case with Eritrea, Sudan, Algeria, Libya,

4 Taz.de: http://www.taz.de/!5419414/

Tunisia and Egypt. Overall, the AU is sidelined following the new Partnership Framework.

5.3 Intermediate conclusion

The JAES through the PMME commits AU and EU to manage migration from a comprehensive approach, by pursuing and implementing policies and programs to address all the relevant dimensions of migration. The analysis of the political dialogue presented above, however, showed that the opposite has applied. The migration crisis presented itself as a crucial moment, contributing to move the AU- EU relations back to the past, as already predicted by Peo Hansen and Stefen Jonsson (2011). The migration crisis that hit the EU in 2015 was a serious event for the EU. It constituted a problem for the EU while the AU did not see it as a problem it should act on. At pre-meetings in the run-up to the 2015 Europe-Africa Valletta summit, the AU had actively pressed African representatives to portray migration as Europe’s problem and to try to capitalize on the flow of people northwards (Perkes, 2017:131). In the face of an impasse in Valletta, the AU lost its significance for the EU as a partner. This implies the end of the idealist approach taken by the JAES which aimed to reconstruct the Africa-EU relationship in order to elevate it to a continent to continent relationship. The idea of interdependence is also given up in the face of a pressing situation. The sidelining of the AU by the EU therefore represents a situation in which constructivism and interdependence hold little explanation power. Neorealism and neocolonialism seem to be better placed to explain EU´s post- Valletta approach to African migration management. Unilateral decision-making in a situation perceived as posing an existential threat seems to point to neorealist politics. Moreover, the bilateral approach proposed in the EU policy points to a neocolonial practice of divide and rule. The proposition by the EU to use conditionality as a tool for securing compliance by African countries points to a situation of dependency which is the consequence of neocolonial relationships. In the following section, the dissertation will pursue this analysis, by looking at the implementation of EU´s migration policy in Africa.

5.4 The implementation of EU´s migration policy in Africa

The Partnership Framework is a unilateral policy, decided by the EU after it became clear that cooperation at the continental level, that is with the AU, was not permitting it to push for its preferences and interests on the African continent. Underlying this unilateral approach is the assumption according to which individual African countries are weaker in terms of bargaining power, and that they will comply with the EU approach if financial inducement is provided (Betts & Milner, 2007; Dünnwald, 2017: 83). Bilateralism therefore constitutes an approach for the EU to leverage aid and conditionality in support of European concerns and policy priorities. More importantly, it provides the EU with the possibility to reintroduce aspects of migration management measures the AU resisted in Valletta. These measures focus on border management as well as on return and readmission agreements, with the aim to curb on African migration in the EU. The aim of this section is to closely look at the implementation of these measures.

5.4.1 Migration control through border externalization

On the basis of the Partnership Framework, EU border externalization has been scaled up, focusing on two regions: North Africa and West Africa. The aim has been to seal two border areas: the euro-Mediterranean region and North Africa. Border management are driven by core European countries with special ties to North and West African countries such as France and Italy. However, it seems to be the case that it is the EU that provides the platform for migration policy. Countries such as Germany and Great Britain have therefore progressively increased their border security actions in North and West Africa. In North Africa, however, the bulk of EU efforts to fight migration has been in Libya where border management includes detention centres (Akkerman, 2017: 45-46). EU´s efforts regard capacity building and financing Libyan activities in border management. Commitment for the EU to continue to fight against illegal migration from Libya was highlighted in 2017 when the Italian government decided to deploy 400 troops on the Libyan territory. This decision also includes Niger (470 troops), and Tunisia (60 troops). The deployment of Italian military troops in North Africa to work on border security comes to complete French, British, and German military deployment in Tunisia who are engaged in capacity building for local authorities to fight illegal migration at the Sea (ibid.).

Border management supported by the EU and its member states in Libya concerns both sea borders and land borders. Sea border security aims to prevent migrants in Libya from leaving the territory to cross into the EU. Land border security on the other hand, concerns Libya´s southern borders, the aim being to prevent Sub- Saharan migrants from crossing into Libya, because of the probability that they might end up on the EU territory. The Italian Interior Minister has expressed that securing Libya´s southern borders means securing Europe´s southern border5.

The Sea border is protected by the Libyan Coast Guard whose trainings and equipment in the area of border management are supplied by the EU. The mission of the Coast Guard is to conduct operations aiming to intercept migrant boats and bring them back into Libya.

Land border is protected by militias, in the framework of a deal signed in 2017 between Italy and 60 tribal leaders, mostly active in the south of Libya (ibid. 49). The cooperation concerns training and equipment, with the aim of having a functioning Border Guard structure at the southern border (ibid. 49).

Finally, EU border security in Libya includes the establishment of detention camps throughout the country. They are run both by government and militia groups (Parkes, 2017: 46-49). EU cooperation with Libya, controversial as it has been, has nonetheless availed itself efficient, because it led to a temporary sharp decrease in migration to Italy. On this basis, the EU concluded that “training and equipping the Libyan Coast Guard is a key component of the EU approach and should be speeded up” (EUC, 2017).

In fighting African migration to its territory, the EU has sought to maximize the

5 securing southern borders https://theconversation.com/europes-wall-against-african-migrants-is-almost- complete-76758

56 effects of its policy in North Africa, by sealing also borders between West Africa and North Africa, on the basis of the four priority countries identified in the Partnership Framework: Nigeria, Mali, Senegal and Niger. However, the bulk of efforts in border management has been in Niger, although this country does not figure among the top ten African migrant sending countries, unlike Nigeria, Mali and Senegal. It is nonetheless the main transit country for West African migrants going north. As such, its border with North Africa had to be sealed.

To do this, the EU has first and foremost drawn on the presence in the Sahel of its three Common Security and Defense Policy (CSDP) structures which are part of its Common Foreign and Security Policy. These count two civilian missions: the EUCAP Sahel Niger and the EUCAP Sahel Mali; and a military operation, the EUTM Mali. Deployed initially to fight terrorism and organized crime in the respective countries, the mandates of these CSDP structures have progressively been adapted to the political priorities of the EU, notably the fight against migration. Capacity building for security and defense forces of these countries, in the form of training, advise and equipment in the area of border management have become their core activities (Akkerman, 2018: 19-20).

Under EU´s pressure, Niger in May 2015 adopted an anti-migration law which it subsequently showed a reluctance to implement, because this would go against a certain political and economic equilibrium existing between the central government and the northern region of Agadez (Molenaar, 2017). Moreover, Niger is a state party to the Economic Community of West African States (ECOWAS) protocol, establishing a free movement zone. Applying this law would violate the free movement protocol. One month after the adoption of the Partnership Framework, however, Niger adopted an Action Plan6 to implement EU´s short term objectives, which is a telling timing. It has also been widely criticized both by local and international Civil Society Organizations as no communication had been made prior to its application. In its nature, the Action Plan shifts Niger´s border with Libya and Algeria to Agadez and Arlit by stating that: any foreigner leaving Arlit or Agadez on board of a smuggler´s vehicle would be assumed to be involved in illegal migration and would be stopped, even in case the person is a citizen of the ECOWAS with a legal permission to freely move on the territory of Niger.

This was followed by an increased military and police activity to stop migrants. While the military increased its operations across the desert to intercept migrants having crossed the “newly drawn” border, the police forces, drawing on EU trainings on border management and equipment in this area, established check points where from entry in Niger has strictly been controlled. These activities have had a deterrent effect on potential West African migrants, demonstrated by a significant drop in numbers of migrants transiting in Agadez and thus migrants heading north. Moreover, the establishment of reception camps where stranded or intercepted migrants have been received by the International Organization for Migration (IOM), on a project funded by the EU, has allowed the EU to block migrants from continuing their migration road. Instead, the IOM has offered them assistance to “voluntary” return. In its second progress report on the implementation of the Partnership

6 Bazoum Mohamed, Interiour Minister in Niger: http://www.g5sahel.org/index.php/13-actualite-des-pays- g5/1290-discours-de-m-bazoum-mohamed-ministre-d-etat-ministre-de-l-interieur-a-la-reunion-de-coordination-de- la-lutte-contre-le-trafic-illicite-de-migrants

Framework, the EU reports a significant drop in numbers of West African arrivals on its territory, and on increased numbers of assisted “voluntary” returns from Agadez. It calls cooperation with Niger a showcase of how the EU and its member states can combine instruments and tools available in a comprehensive manner (EUC, 2016b: 3).

Recently, the EU has scaled up its militarization of borders in the Sahel region in its fight against migrants. During 2017, efforts to regionalize the CSDP structures were initiated with the establishment of a Regional Coordination Cell in Bamako, with the task of extending existing CSDP activities at the regional level, including border management. Further to these EU CSDP missions, EU member states are also increasingly deploying military forces in the Sahel. Germany in 2017 established a military base in Niger, with the stated aim to fight terrorism, having border management as a core activity. Italy, moreover, announced in December 2017 a plan to deploy 470 military troops in Niger, to fight irregular migration. The Nigerien civil society´s negative reaction on the increasing presence of foreign troops has had no effect as Italian troops started to deploy in September 20187. The French Operation Barkhane has been in the region for several years, with the stated aim of fighting terrorism.

What can be said for now is that much of the EU´s southern border is located in Africa. It represents a situation where parts of Africa are being occupied by European militaries, in order to fight against illegal migration, terrorism and smuggling; the issue of illegal migration being central.

5.4.2 Migration control through return and readmission agreements.

Further to allowing the EU to continue to relocate its border within the African continent, bilateral relations have also allowed the EU to push for return and readmission agreements. The Partnership Framework seeks the cooperation of African states both in terms of the first and the second generation readmission agreements. It appears that while the EU has been able to implement border management measures, the opposite has been the case regarding the issue of return and readmission agreements. To date, only one readmission agreement has been signed, with Mali, in exchange for $153 million in aid (Wagner, 2018). This agreement was contested by the Malian Civil Society Organizations that accused the government of betraying the people by accepting cash in return for a readmission agreement (Koenig, 2017:14). This reaction is due to the role migrants play for local economy. Given the sensible nature of such an agreement, Mali subsequently showed reluctance to implement it. This came to display two weeks after the signing of the agreement, when Malian authorities refused to accept two people who were deported from France, sending them back on the same flight they had arrived on. Mali refused to recognize the validity of the EU laissez-passer documents they were carrying, and questioned whether they were even Malian citizens8. This shows how sensitive the

7Migrations : la mission militaire italienne au Niger débute finalement: https://www.actuniger.com/international/14415-migrations-la-mission-militaire-italienne-au-niger-debute- finalement.html 8 http://www.statewatch.org/news/2017/jan/mali-statement.htm

58 issue of returns and readmissions in Africa is.

For the same reason, negotiations launched in 2016 with Nigeria and Tunisia, and ongoing for a long time with Morocco and Algeria have not yet been finalized (D’Humières, 2018: 6). In fact, it has been argued that the EU has miscalculated the effect leveraging aid would yield in terms of returns (Castillejo, 2017:21). Remittances seem to be far more important for African countries than the amount of aid the states can get from the EU. Cooperation on return and readmission, however, continue to be part of bilateral cooperation between individual EU member states and African states in the framework of ACP agreement. But it has not performed satisfactorily for the EU that decries low return rates (EUC, 2017). In its 2018 document, the EU expresses a need to continue efforts to progress on the conclusion of return and readmission agreements, with a focus on North African countries9.

5.5 Africa´s migration interests

The AU was established in 2002, replacing the Organization for African Unity (OAU) created in 1963, at the height of decolonization. The creation of the AOU was based on the idea that African Unity is an effective tool against neocolonialism. Pan-African leaders such as Nkrumah saw division within and between Africa as the foundation of colonial domination. African Unity was therefore seen as the “first prerequisite for destroying neocolonialism” (Nkrumah, 1965: 253). Following these thoughts, the OAU operates with a vision of realizing a united Africa, seen as key to the development of the continent. Central to this vision is the idea of free movement. This vision was cemented in the 1991 Abuja Treaty in which the then OAU established the African Economic Community (AEC). Its objectives include strengthening the existing Regional Economic Communities (RECs), establishing new RECs in the regions where they did not exist, and harmonizing their policies towards the realization of the AEC. Together, they represent an Africa organized in regional entities whose purpose is to facilitate regional economic integration between African states through the wider AEC. Another crucial objective of the Abuja Treaty is to achieve sustainable economic development in Africa. It sees free movement of people, services, and goods as key to integration and development (Adepoju, 2016: 3). In the framework of the Abuja Treaty, the RECs have adopted free movement protocols that they implement according to the migration realities they face. While some of them have protocols specifically dealing with free movement, others have adopted free movement under their free market protocols (Abebe, 2017:7). The common objective is however the idea of promoting regional free movement which would allow for a progressive realization of free movement across Africa. When the AU in 2006 adopted its migration policy, it continued in the spirit of the Abuja Treaty, explicitly asking member states to exploit migration for development. Free movement continues to be a top priority of the AU, as demonstrated by its continental action that came out of the AU Summit´s Declaration on Migration in June 2015. Among priorities identified figure: the speeding up of the implementation of continent-wide visa free regimes, free movement of people and the African passport; the harmonization of mechanism for higher education in Africa; the creation of economic opportunity for youth and women; and the enhancement of international collaboration on combatting human trafficking and smuggling of

9 https://ec.europa.eu/commission/sites/beta-political/files/euco-migration-booklet-june2018_en_1.pdf

59 migrants10. In its long-term vision Agenda 2063 adopted in 2015, moreover, the AU identified free movement within Africa as its priority. In its ambition, it stipulates that all visa requirements for intra-African travel should be waived by 2018, whereas a legal framework should be adopted by 2023 for the issuance of African Common passport. During a Summit in Kigali in January 2018, the AU adopted a Protocol to the Abuja Treaty Establishing the African Economic Community Relating to Free Movement of Persons, Right of Residence and Establishment, along with its Implementation Roadmap. The movement of people for work and trade are emphasized as central to the AU’s objective of economic integration, which it views as a key pathway to development.

5.6 The implementation of Africa´s migration interests

As it was argued previously, the AU was sidelined after the Valletta Summit. Bilateral agreements have to an important degree allowed the EU to attain its migration goal of curbing irregular migration, mainly through the implementation of its border management policy on the African continent. Further to the bilateral approach, the EU has also taken a regional approach, with important consequences on AU´s interest in regional integration and economic development. EU´s regional approach to migration management in Africa is implemented on the basis of migration geography. It divides African countries and regions according to this logic (Knoll, 2016:21). On the one hand, the EUTF funds origin and transit countries located in North, West and Horn of Africa regions because of their migration significance. On the other hand, countries who happen to be located in the Central and Southern regions receive less aid, because they are not interesting from EU migration perspective. This is problematic because the EUTF is completely financed by the Official Development Assistance (ODA) Fund. While the ODA in the pre-Valletta era operated with a development logic with a focus on poverty reduction, the EUTF deals with a migration logic with the aim of sharply reducing migration. Moreover, it does not help that Africa and the RECs are excluded from decision making in the EUTF´s governing bodies. It is here the strategic objectives of the EUTF are defined, and projects to be funded selected. By only including the EU and its member states, this contributes to make sure that only projects promoting EU interests on the continent are funded (Concord, 2017:12). EU´s regional approach largely disregards the already regional organizations established or confirmed by the Abuja Treaty. Basically, regional integration in Africa is not endorsed by the EU, mainly because it is also viewed as a security threat on EU´s external borders (Parkes, 2017:129-137). There is the fear that free movement within Africa brings Africans too close to EU´s southern borders, implying a greater risk for increased illegal migration to its territory. In the absence of effective border management policies within Africa, the EU will play to a divide and rule tune (ibid.). As in the case of bilateral relations, EU´s regional approach has important consequences when considering Africa´s long-term objectives of free movement and

10 http://cap.africa-platform.org/news/au-summit-declaration-migration

60 economic development. For Africa as a continent, stopping migration constitutes a severe blockage to its long-term objectives.

5.7 Intermediate summary

The above analysis dealt with migration management policy at the implementation level. It took a close look at the measures that have been implemented in order to highlight the interests they have served: AU´s or EU´s? Through the analysis, it became clear that EU´ interests have largely dominated Africa´s interests. One striking finding of the analysis is EU´s progressive deployment of hard power on the African continent in the fight against migration. This realist undertaking by EU and several core EU member states has helped to attain EU´s short term goals of curbing migration. However, in splitting Africa in priority non-priority countries and regions, the EU has not only weakened the AU as an organization but has also undermined its long-term goals of integration and economic development. Another key finding in this analysis is a persistent colonial relationship. It is reflected in the bilateral approach taken by the EU. It comes in the form of linking individual African states directly to the EU, instead of communicating among themselves when it comes to migration management. This divide and rule strategy makes sure EU´s interests are met, while African interests are ignored. It has been argued that even in the heyday of colonialism, Africa and Africans were not passive spectators in the backyard. Rather, some of them ran the colonial enterprise on Europeans´ behalf (Gaibazzi,2017: 11). In the current situation, African states speak with a double tongue: one with the AU seeking to implement long term objectives of free movement and economic development; another with the EU on its migration policy that are not aligned with AU´s interests. While African political leaders can be accused of pursuing their own personal and shortsighted interests, this dissertation takes the view that this is a normal practice of colonialism: the use of a national bourgeoisie as an intermediary to promote colonial interests on the African continent. 6. Conclusion: A partnership of equals?

This dissertation set out to look at how the AU-EU relations have fared under the Joint Africa-EU Strategy (JAES). With its ambition to elevate relations with Africa to a continental level, the JAES (2007) announced a new era in which the AU and the EU would transform their traditionally unequal relationship into a partnership of equals through which they would pursue mutually beneficial gains. In so doing, the JAES created high expectations about the future of the relations between the two organizations. Given the fact that the issue of migration over the last years has dominated their relations, it offered itself as a field to look at in order to understand how the JAES has performed. As such, the Partnership on Migration, Mobility and Employment, which embodies their relations on migration, has been the center of this study. The dissertation asked the following question: To what extent does AU- EU migration management reflect a partnership of equals?

To answer this question, the dissertation utilized a desk-based methodology, using available written material on the relations between Africa and the EU, and between

AU and EU. It moreover considered a number of theories in an effort to arrive at the best possible framework that allows for the appreciation of the dynamics that might be involved in their relationship. The analysis addressed two levels in migration management relations: the policy-making level and the policy implementation level.

Against this backdrop, the main finding of this dissertation is that there exists no partnership between the AU and the EU in the area of migration, let alone a partnership of equals.

The Valletta Summit in 2015 is the place where this “re”started. Here, the two parties failed to agree on a common migration management agenda, each sticking to its own views and corresponding strategies. However, the Valletta outcomes, notably the Action Plan (2015) and the EU Trust Fund (2015), ended up reflecting EU´s preferences over Africa’s preferences. The Valletta Summit show how difficult it is to implement new ideas, the JAES, especially in a situation perceived as a threat. In fact, the Valletta outcomes can be seen as a result of the migration crisis in 2015 that, from an EU point of view, constituted an existential problem. In the face of a threat, the EU adopted realist politics in its migration relations with the AU. EU´s concern for survival moreover came to full display with the adoption in 2016 of the new Framework for Partnership with third countries in which EU formulated its migration policy not only unilaterally but also in clear and brutal terms. In this policy document, bilateralism as a strategy replaced the Joint Africa-EU Strategy/Partnership on Migration Mobility and Employment. At the same time, bilateral relations relied on conditionality, meaning that those African countries who accept to cooperate with the EU on its migration goals are rewarded, while those who refuse are sanctioned. The new Framework for Partnership with third countries constitutes a reversal to the practice of asymmetrical relations, characterized by unequal exchange. Here, it is the movement of African citizens which is exchanged with other goods such as development aid, trade, and education. The externalization of EU borders to the African continent is an effective strategy to this end. Instead of an evolution towards a partnership of equals, the current state of affairs can be described as one in which Africa-EU relations are moving forward to the past (Hansen & Jonsson, 2011:273). Concretely, the Eurafrican project seems to be operational also in the current Africa-EU relations on migration. It is mostly visible in the practice of policy making, where the fate of Africa and its citizens is decided in Europe and afterwards imposed on Africans who still have no choice than to accept given their continuous reliance on EU´s aid. Moreover, the absorption of Africa can be seen in the recent scaling up of border management activity on the African continent, strongly backed up by European militaries, in the name of fight against irregular migration, terrorism and smuggling. This undertaking that seemingly treats lightly the sovereignty of African countries could be seen as an attempt by the EU to save Africa for itself in an era where its longstanding monopoly over Africa and its resources has been challenged by emerging powers such as China. Fight against illegal migration could therefore be seen as an excuse for the EU to maintain its influence in Africa in order to protect its economic and political interests on the continent. For Africa, important consequences follow. First, the EU divide and rule strategy that characterizes its bilateral and regional approaches ignores African long-terms objectives of integration. Moreover, its development objectives are hampered by the

62 fact that free movement, also on the African continent, is limited by EU´s border management policies. On these grounds, there is no partnership between the AU and the EU, and it makes no sense to speak of a partnership of equals. The relations are as they used to be: unequal, nowadays called neocolonial. As such, those skeptical views regarding the impact of the JAES on future Africa-EU relations seem to be justified, contrary to the optimistic views that predicted a change in the relations.

Bibliography

Abebe, T.T, 2017. Migration Policy Framework in Africa. Africa Report No. 2.

African Common Position on Migration and Development: http://www.un.org/en/africa/osaa/pdf/au/cap_migrationanddev_2006.pdf

Africa-EU Strategic Partnership: A Joint Africa-EU Strategy: https://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/er/97496.p df

Akkerman , M. (2017). Expanding the Fortress. The policies, the profiteers, and the people shapped by EU´s border externalization programme. Stop Wapenhandel. Adepoju, A. (2008): Migration in Sub-Saharan Africa. Current African Issues 37: https://www.files.ethz.ch/isn/91432/37_Migration-in-Sub-Saharan-Africa.pdf.

Aubarell, G., Zapata-Barrero, R. & Aragall, X. (2009). New Direction of National Immigration Policies: The Development of the External Dimension and its Relationship with the Euro-Mediterranean Process. Euro Messo Paper No. 79.

Baldwin, A. D., (1980). Interdependence and power: a conceptual analysis. International Organization, 34(4), pp. 471-506.

Betts, A. & Miller, J. (2007). The Externalization of EU Asylum Policy: The Position of African States. Dansk Institut for Internationale Studier Brief.

Bossuyt, J. (2017). Can EU-Africa relations be deepened? A Perspective on Power Relations, Interests and Incentives. ECDPM, Briefing Note No. 97.

Carciotto, S. (2018). EU-Africa Relations on Migration: What Future? SIHMA: https://www.linkedin.com/pulse/eu-africa-relations-migration-what-future-sergio- carciotto/ Carbone, M. (2013). EU-Africa Relations in the Twenty-first Century: Evolution and Explanation, in “Maurizion Carcone (eds.) “The European Union in Africa: Incoherent *Policies, Asymmetrical Partnership, Declining Relevance?, Part I: Introduction. Manchester: Manchester University Press.

Castillejo, C. (2017). The AU Migration Partnership Framework. Time for Rethink? German Development Institute Discussion Paper No. 28.

Concord, 2017: Partnership or Conditionality? Monitoring the Migration Compacts and the EU Trust Fund for Africa: https://concordeurope.org/wp- content/uploads/2018/01/CONCORD_EUTrustFundReport_2018_online.pdf?86d3 84&86d384.

D’Humières, V., (2018). European Union/African Cooperation: The externalisation of Europe’s migration policies. Foundantion Robert Schuman Policy Paper: https://www.robert-schuman.eu/en/european-issues/0472-european-union- african-cooperation-the-externalisation-of-europe-s-migration-policies

Duvall. D. R., 1978. Dependence and Dependency in the Global System International Organization, 32(1), pp. 51-78.

European Union Commission (2015): Communication on establishing a new Partnership Framework with third countries under the European Agenda on Migration http://www.europarl.europa.eu/RegData/docs_autres_institutions/commission_eu ropeenne/com/2016/0385/COM_COM(2016)0385_EN.pdf

European Union Commission (2016a): first Progress Report on Framework for Partnership with third countries: https://eeas.europa.eu/sites/eeas/files/com_2016_700_f1_communication_from_ commission_to_inst_en_v8_p1_english.pdf

European Union Commission (2016b): Second Progress Report on Framework for Partnership with third countries: https://reliefweb.int/sites/reliefweb.int/files/resources/second-progress-report- 1_en_act_part1_0.pdf

European Union Parliament Brief Paper, 2015. EU legal framework on asylum and irregular immigration “on arrival” State of play: http://www.europarl.europa.eu/RegData/etudes/BRIE/2015/551333/EPRS_BRI(2 015)551333_EN.pdf.

European Union Commission meeting conclusions, June 2017: https://www.consilium.europa.eu/media/23985/22-23-euco-final-conclusions.pdf

European Reunion Action plan on Return: http://www.europarl.europa.eu/legislative-train/theme-towards-a-new-policy-on- migration/file-action-plan-on-return Fanon, F., (1963). The Wretched of the Warth. NY: Grove Press.

Fakhoury, T. (2016). Securitising Migration: The European Union in the Context of the Post-2011 Arab Upheavals. The international Spectators, 51(4), pp. 67-79. Farrell, M. (2005). A Triumph of Realism over Idealism? Cooperation Between the European Union and Africa. European Integration, 27(3), pp. 263-283. Friends of Europe Report, 2017. EU-Africa Relations: Strategies fro a renewed Partnership. https://www.friendsofeurope.org/global-europe/eu-africa-relations- strategies-renewed-partnership Gaibazzi, A., Bellagamba, A., Dünnwald, S. 2017. “Introduction: An Afro-Europeanist Perspective on EurAfrican Borders”, in Gaibazzi, A., Bellagamba, A., Dünnwald, S. (eds.), “EurAfrican Borders and Migration Management: Political Cultures, Contested Spaces, and Ordinary Lives” New York: Palgrave McMillan.

Galtung, J., 1971. A Structural Theory of Imperialism. Journal of Peace Research, 8(2), pp. 81-117.

Gassama, J.I., 2008. Africa and the Politics of Destruction: a Critical Re-examination of Neocolonialism and its Consequences. 10 Or. Rev. Int´l L. 327. Gibb, R., 2000. Post-Lomé: The European Union and the South. Third World Quarterly, 21(3), pp. 457-481. Keohane R. O. & Nye, S.J., 1977. Power & Interdependence. Boston : Little, Brown. Hansen, P., Jonsson, S., 2011. Demographic Colonialism: EU-Africa Migration Management and the Legacy of Eurafrica. Globalization, 8(3), pp. 261-276). Hewitt, A., 1993. “Development Assistance Policy and the ACP”, in Lodge, J. (ed), The Europen Community and the Challenge of the Future. London: Pinter. Hopf, T., 1998. The Promise of Constructivism in International Relations Theory. International Security, Vol. 23 (1), pp. 171-200.

Hurt R. S., 2010. Understanding EU Development Policy: history, global context and self-interest? Third World Quarterly, 31(1), 159-168.

International Crisis Group, 2017. “Time to Reset African Union-European Union Relations”. Africa Report No. 255.

Karyotis, G., 2007. “European Migration Policy in the Aftermath of September 11”. Innovation: The European Journal of Social Science Research, 20(1), pp. 1-17. Klavert, H., 2011. “African Union framework for migration: current issues and questions for the future”. www.ecdpm.org/dp108. Knoll, A. & de Weijer, F., 2016. “Understanding African and European Perspectives on Migration – Towards a better partnership for regional migration governance?”. ECDPM Discussion Paper No.203.

Koenig, N., 2017. “The EU´s external Migration Policy: Towards win-win-win Partnerships”. Jacques Deloite Institute Policy paper No. 190.

Korvensyrjä, A., 2017. “The Valletta Process and the Westphalian Imaginary of migration Research”. Movements, Jg.3, Heft 1/2017. Kotsopoulos, J. & Sidiropoulos, E., 2007. “Continental Shift? Redefining EU-Africa Relations”. European Policy Center Policy Brief, November 2007. Lavenex, S. & Schimmelfennig, F., 2009. EU rules beyond EU borders : Theorizing external governance in European politics. Journal of European Public Policy, 16(6), pp. 791-812. Lavenex, S. & Kumnx, R., 2008. “The Migration-Development Nexus in EU External Relations”. European Integration, 30 (3), pp. 439-457. Lavenex, S., 2006. “Shifting up and out: The Foreign Policy of European Immigration Control. West European Politics, 29(2), pp. 329-350. Lehne, S. 2016. “Upgrading the EU´s Migration Partnership. Carnegie Europe”. https://carnegieeurope.eu/2016/11/21/upgrading-eu-s-migration-partnerships-pub- 66209 Louw-Vaudran, L. (2015): “Fortresses in our midst - The AU says Europe should allow more legal migration from Africa, but the same should apply to South Africa”, Institute for Security Studies https://www.issafrica.org/iss-today/fortresses-in-our- midst

Mackie, J., Deneckere, M. & Galeazzi, G., 2017. ”Challenges For Africa-EU Relations in 2017: Matching means to priorities”. ECDPM, Issue No.8. Mackie, J., Ronceray, M. & Tadesse, L., 2018. “Challenges for Africa-EU relations: A change to get it right”. ECDPM. January 2018.

Mangala, J., 2013. “Africa-EU Strategic Partnership: Significance and implications”, in Mangala, J. (ed.), Africa and the European Union: A Strategic Partnership. New York: Palgrave Macmillan.

Mangala, J., 2013. “Africa-EU Partnership on Migration, Mobility and Employment”, in Mangala, J. (ed.), Africa and the European Union: A Strategic Partnership. New York: Palgrave Macmillan.

Martin, G., 1982. “Africa and the Ideology of Eurafrica: Neo-Colonial or Pan- Africanism?” The Journal of Modern African Studies, 20 (2): pp. 221-238. Milner, H., 1991. The Assumption of Anarchy in international Relations Theory: a Critique. Review of International Studies, 17, pp. 67-85

Molenaar, F., 2017. “Irregular migration and human smuggling networks in Niger”. Netherlands Institute of International Relations ‘Clingendael’: https://www.clingendael.org/sites/default/files/pdfs/irregular_migration_and_hu man_smuggling_ne tworks_in_niger_0.pdf

Moravcsik, A., 1997. “A Liberal Theory of International Politics”. International

Organization, Vol. 51 (4), pp. 513-553.

Nkrumah, K., 1965. Neocolonialism: The Last Stage of Imperialism. Thomas Nelson & Sons, Ltd., London. Parfitt, W. T., 1987. “Equals, Clients, or Dependents? A.C.P. Relations with the E.E.C. under the

Lomé Conventions”. The Journal of Modern African Studies, 25 (4), pp. 717-723).

Parkes, R., 2018. “Nobody move: Myths of the EU Migration Crisis”. Chailllot Paper No. 143.

Pinyol-Jimerez, G., 2011. “The Migration-Security Nexus in Short: Instruments and Actions in the European Union”. Amsterdam Law Forum. Ravebhill, J., 1985. Collective Clientelism. New York: Columbia University Press.

Raineri, L. &Rossi, A., 2017. “The Security-Migration-Development Nexus in the Sahel. A Reality Check”. Istituto Affari Internationali.

Europen Union 2006, Schengen Borders Code: https://eur-lex.europa.eu/legal- content/EN/TXT/PDF/?uri=CELEX:32006R0562&from=EN

Sepos, A., 2013. Imperial power Europe? The EU’s relations with the ACP countries. Journal of Political Power, 6(2), 261-287.

The Migration Policy Framework for Africa: http://www.fasngo.org/assets/files/resources/EXCL276_IX__Strategic_Framewor k_for_Policy_Migration.pdf.

Towards a Migration Management Strategy: https://www.coe.int/t/dg3/migration/archives/Documentation/Migration%20mana gement/CDMG_2006_11e%20Final%20Report%20_MG-R-PE_en.pdf.

Venturi, B., 2017. The EU and the Sahel: A Laboratory of Experimentation for the Security-Migration-Development Nexus. Istituto Affari Internationali.

Vimont, P., 2016. “Migration in Europe”. Bridging the Solidarity Gap. http://carnegieeurope.eu/2016/09/12/migration-in-europe-bridging-solidarity-gap- pub-64546

Wagner, F., 2018. E.U. Deportations to Mali risks further destabilizing Mali. https://www.newsdeeply.com/refugees/community/2018/07/02/e-u-deportations- risk-further-destabilizing-mali.

Waltz, N. K., 1988. The Origins of War in Neorealist Theory. The Journal of Interdisciplinary History, Vol. 18 (4).

Wendt, A., 1992. Anarchy is what States Make of it: The Social Construction of Power Politics. International Organization, 46(2), pp. 391-425.

Woddis, J., 1967. Introduction to Neo-colonialism. London: Lawrence & Wishart. World Bank Migration and development brief, 2017. http://pubdocs.worldbank.org/en/992371492706371662/MigrationandDevelopmen tBrief27.pdf

Grey Zones of Law and War: Assessing the Applicability of the Principle of Distinction to Cyber- Warfare Isabella Steel Abstract: This dissertation examines the applicability of the Principle of Distinction – a central tenant of International Humanitarian Law (IHL) – to international cyberwarfare. ‘Applicability’ is defined as the ability in both theory and practice to uphold IHL’s foundational aim of balancing military necessity with humanitarian considerations. As an emerging domain of conflict characterised by new dynamics and rationales, there is great debate regarding how – if at all – existing IHL can apply and what additional clarifications are needed. Inevitably in large part speculative, this dissertation argues that an expansive interpretation of existing IHL is theoretically able to regulate the conduct of cyberwar, but that several significant obstacles prevent its practical sufficiency – namely, a lack of definitional clarity and problems of attribution, rendering it unable to enforce consequences for transgression. It thus recommends an International Cyberwar Convention (ICWC) which would serve several vital institutional functions: rule clarification, a collective attribution mechanism, incentives for compliance, and authorisation for counter-measures against transgressors. It will not be an easy task, but the mere process of negotiating and establishing thresholds of conduct – wherever they are drawn – will reflect, shape and accelerate norm development, clarify state intentions, and build confidence in the international community.

Introduction

Nation-states are increasingly utilising ‘cyber’ as a tool of international conflict with hostile intent. As the ISC (2017, 31) notes ‘State actors are [now] highly capable of carrying out advanced cyber-attacks’. While cyber-attacks were historically restricted by the geopolitical and diplomatic consequences of resort to such methods, the technological advancement and increasing brazenness of state actors means this is no longer the case (ibid, 30). Whilst analogical cries of an imminent ‘cyber Pearl Harbour’ (Sravridis, 2017) are unhelpful, it is true that as the prevalence and intensity of cyber-attacks as a tool of inter-state conflict increases, so does the likelihood that such attacks seriously and negatively impact civilians. Former GCHQ- head, Robert Hannigan warned that ‘It seems almost inevitable at some stage’ that people will be physically killed or injured. ‘If you start tampering with a power supply or traffic control you know you raise the risk of people being hurt’ (in Burgess, 2018).

How then can cyber-warfare – a new theatre of conflict, with new weapons and logics – be regulated so as to ensure civilian protection? Multiple and overlapping bodies of law have emerged which seek to uphold civilian protection in conventional kinetic conflicts, most notably International Humanitarian Law (IHL). Born from the Geneva (1949) and Hague (1907) Conventions, as well as wider treaty and customary law, it seeks to balance military necessity with humanitarian considerations. Yet while the ISC (2017, 44) states that it is ‘now generally accepted, including at the UN level…[that] international law applies to state acts in cyberspace in the same way as anywhere else’, the principle is not laid down in a binding international form.

While IHL is criticised for its limited prescriptive force, its applicability and implementation in a cyber-sphere is even harder. ‘The practice and precedents of how cyber activity ought to be classified under existing international legal principles and concepts [are] underdeveloped. As a result, the application and analysis of existing legal norms to the analysis of cyber activity can vary considerably’ (written evidence from GCHQ in ISC, 2017, 44). There remains need to assess how existing law applies in practice to the particularities of this new domain (Arimatsu in Tsagourias et al., 2015, 326). This is echoed in the US International Strategy for Cyberspace (2011) which concludes that whilst long-standing international norms guiding state conduct apply equally in cyberspace, the unique attributes of

69 networked-technology necessitates clarification of how such norms apply, and what additional understanding is needed to supplement them.

This dissertation examines how the Principle of Distinction (PoD) – a central tenant of IHL – can apply to cyber-warfare. ‘Applicability’ is defined as the ability – in both theory and practice – to uphold the foundational aim of IHL to balance humanitarian concerns with military necessity during armed conflict (Henckaerts and Doswald- Beck eds., 2005, 1). ‘Cyber-warfare’ refers both to cyber-operation(s) used as a tool of conventional kinetic conflict; and cyber-operation(s) which, without parallel kinetic force, constitute ‘armed conflict’ and are thus subject to IHL. This is not a new venture. Near ubiquitous consensus that the conduct of war, particularly the impact of hostilities on civilians, should be regulated, demands continual (re-)examination of how – it at all – existing law applies to new weapons and theatres of war. The Tallinn Manual on the International Law Applicable to Cyber Warfare (Schmitt ed., 2013; Schmitt and Vihul eds., 2017) prepared by the IGE at the behest of the NATO CCDCOE is the most comprehensive re-examination to-date.

Given temporal and spatial constraints, this dissertation is deliberately and unavoidably narrow in scope. There is much of great importance it cannot address, particularly related to proportionality, precaution, and discrimination in cyber-space. The PoD is subject to particular debate and erosion; and raises a plethora of vital ethical, legal and political questions, making it a fascinating topic to explore. Although IHL is also applicable to non-international armed conflicts (NIAC), it is narrowly to international armed conflicts (IAC) that this dissertation applies. An IAC demands the presence of hostilities between two or more States, rather than wider cyber-operations related to espionage, crime or terrorism which, like their physical equivalents, are not categorised as ‘armed conflict’ or subject to IHL. Finally, it should be noted that this dissertation does not debate the efficacy or morality of IHL as a tool to protect civilians in war. It takes as its starting point belief that, despite IHL’s many shortcomings, it remains crucial in balancing humanitarian considerations and military necessity – both in kinetic and cyber conflict.

This dissertation is divided into four chapters. Chapter One establishes a framework for analysis, briefly outlining technical developments in cyberspace, and how states have utilised such technology for hostile intent. It also explores contemporary international efforts to regulate cyberspace, and examines how cyberspace – with its unique dynamics – should be defined. Chapter Two is focused on IHL. It establishes cyberspace as a legal domain, and examines what constitutes an ‘armed conflict’ – sufficient to excite IHL – in cyberspace, addressing definitional and practical challenges of classifying ‘armed force’ and reliable attribution. Chapter Three centres on the PoD, asking what conduct is prohibited in cyberwar; and who and what are legitimate targets. It addresses issues such as what categories of persons are protected from direct attack, and how this immunity is lost.

These three chapters argue that an expansive interpretation of existing IHL proves hugely useful as a theoretical tool to regulate the conduct of cyberwar, but that several significant obstacles prevent its practical sufficiency – namely, a lack of definitional clarity and problems of attribution which render it unable to enforce consequences for transgression.

Chapter Four examines how such obstacles might be overcome. The principal debate is between those who propose an international cyberwar convention (ICWC) (Eilstrup-Sangiovanni, 2018), and critics who contend such a venture is – at least at present – near impossible (Schmitt and Vihul, 2016, 44). This dissertation argues that an ICWC offering definitional clarity, a collective attribution mechanism, and incentives for compliance is vitally needed. Agreed, it will be a hugely difficult task, but the mere process of negotiation would be inherently useful, and would accelerate, reflect and shape norm development. Most importantly, establishing a threshold of prohibited conduct – wherever it is drawn – would help clarify state intention, building confidence in the international community. While the Tallinn Manual deals only with lex lata (law as it currently exists), this chapter briefly explores lex ferenda (what the law should be).

Methodology

This dissertation is inevitably in large part speculative. In examining the future and theoretical (as well as the contemporary and practical) applicability of IHL as a tool to regulate cyber-warfare, it is forced to address its application in scenarios that have not yet taken place. In its effort to speculate reliably, this dissertation examines the technical developments which have shaped the proliferation of cyberwar, as well as state utilisation and treatment of such technology in the context of their international relations. Armed with such knowledge, it is easier to accurately envisage how the nature and character of cyberwar will continue to develop, and thus what challenges and situations IHL – as a tool to regulate war – will have to be able to address.

A diverse range of sources have been used, reflecting the multi-disciplinary nature of this dissertation across the fields of law, international politics, philosophy and technology. Foundational to this paper were the 1949 Geneva Conventions, the 1977 Additional Protocol I, and accompanying ICRC Commentaries and ICRC Customary IHL study (Henckaerts and Doswald-Beck eds., 2005). The Tallinn Manual 1.0 (Schmitt ed., 2013) – the most comprehensive study to-date of how IHL applies to cyberwar – was extensively studied. The second edition (Schmitt and Vihul eds., 2017) which principally addresses cyber-activity below the threshold of ‘armed conflict’ was, however, less useful for our purpose. International and domestic government sources such as NATO, the UN, EU and SCO were widely used, as were web-based sources providing an overview of the technological developments shaping the proliferation of cyberwar. Secondary sources, particularly academic journals, have also proved hugely useful; the debates they raised embedded in the analysis of this dissertation.

I – Establishing A Framework For Analysis a. Cyber-domain weaponry – development and use to-date:

Central to ascertaining how to regulate cyberwarfare, is understanding of the specificities of cyberweapons and their use to-date. McGavran (2009, 261) distinguishes between the delivery method weapon, such as a computer; and the intangible cyberspace component, consisting of computer-programmes, digital

71 command operations and network viruses. Cyber-operations utilising IP spoofing, trojan horses and logic bombs are also widely conducted. A logic bomb – which sits idle and undetected for long periods before being activated to execute destructive effects (tech-faq.com, 2010) – was allegedly used by the CIA in 1982 to cause a Siberian-pipeline transporting natural gas to Russia to explode.

This section examines the use of distributed-denial-of-service (DDoS) attacks in Estonia and Georgia, and the Stuxnet worm in Iran. The alleged Israeli cyber-attack on Syrian air-detection systems, which preceded kinetic bombing of a suspected Syrian nuclear facility in Deir ez-Zor by the IDF (Farrell, 2018), is another case-study that this dissertation will reference.

Distributed-denial-of-service: Estonia and Georgia:

DDoS attacks are simple, effective and low cost. They work by overwhelming websites and computer networks with so many additional requests that ‘regular traffic is either slowed or completely interrupted’ (Sonicwall.com, 2018). Thousands of pre-infected computers can be coordinated and used concurrently to attack a single, targeted computer network, service or system (Schaap, 2009, 134). With such computers often located across multiple locations, tracing and attribution is difficult (Coleman, 2007). As in 1998 Operation ‘Solar Sunrise’, neither is the apparent ‘attacker’ always actually the perpetrator (Zittrain, 2008, 37).

Estonian banks, news-outlets and key governments agencies were hit by crippling DDoS attacks in 2007, effectively shutting down financial and civic transactions, and grinding commercial and government affairs to a halt (Lucas, 2017, 116). Sites typically visited 1000 times per day, had nearly 2000 visits and requests per second (Meyers, 2007). As a highly advanced digitally-developed society, E-stonia (Basu, 2008), was left in ‘cyber-shambles’ (Raboin, 2011, 616). Estonia blamed Russia, arguing it was retaliation for the movement of the Soldier of Tallinn statue from the city centre to an outskirts military cementary (Lucas, 2017, 116). Origins remain disputed, augmented by the fact that the DDoS attack constituted almost 130 identifiably different attacks, with servers responsible located in Egypt, South America, Russia and the US (Davis, 2007).

Similarly, following surprise Georgian aerial and ground attacks in 2008 against revolutionary separatist forces in Abkahzia and South Ossetia, DDoS attacks targeted Georgian government and media sites, defacing President Saakashvili’s official website, and compromising military IT systems (Krebs, 2008). Georgian air-defence and command-and-control systems were frustrated (Lucas, 2017, 116), and for a time such operations were conducted solely through US government and unsecured Google accounts (Danchev, Zdnet.com, 2008). There remains no firm evidence of direct Russian-state sponsorship, although initial cyber-attacks were traced to commanding servers in Russia (Raboin, 2011, 618), and the subsequent Russian kinetic military offensive makes their involvement more likely (Markoff, 2008). Indeed, given that attacks began a month prior to invasion, they may have been employed as a deliberate preliminary attack (Kirk, 2008).

Malicious Programmes – Stuxnet and Iran:

Malicious programmes operate ‘by disrupting normal computer functions, or by opening a back door for a remote attacker to take control’ (Schaap, 2009, 135). Malware software has multi-faceted use: it can be configured to either immediately and directly disable the infected computer; or only execute its disabling commands on time-delay via remote-prompting. It can also take over an infected computer, causing it to issue disabling or disruptive commands to other computer networks (Raboin, 2011, 612). The most common malware software are viruses and worms. They can be highly sophisticated, such as the polymorphic worm which alters its ‘signature’ with each self-replication, making detection easier to evade (internetsecurityzone.com).

The Stuxnet worm was responsible for the 2010 attack on two of Iran’s major nuclear power and research facilities at Bushehr and Natanz. The worm took control of the centrifuge array in the Natanz nuclear facility, causing individual machines to malfunction and self-destruct, despite false data indicating to operators correct functioning (Lucas, 2017, 116). The massive nuclear-reactor turbine was disabled at Bushehr (Raboin, 2011, 620). It was labelled ‘the most sophisticated cyberweapon ever created’ (Barnes, 2010), and managed to evade detection for two months.

Iran publicly blamed the US and Israel. Whilst origins remain, once again, largely unverified, the scale, complexity and sophistication of this attack suggest state- sponsorship is highly likely (Halliday, 2010). Similarly, the extent of the damage is unclear. The anti-virus software company Symantec estimated over 60,000 Iranian operation-computers were affected, while German cyber expert Ralph Langer said that realistically Iran needed to ‘throw out every personal computer involved with the nuclear programme and start over, but they can’t do that’ (in Raboin, 2011, 620). Ali Akbar Salehi – head of the Atomic Energy Organisation of Iran (AEOI)– estimated the delay to nuclear operations at the Bushehr plant at over two months (BBC, 2010). b. International efforts to regulate cyberspace:

International efforts to regulate cyberwar have not been sufficient. Domestic governments have made strides in establishing a framework to regulate their cyber- capabilities and defences, with the US creating Cybercom in 2009, Russia passing three critical-data-infrastructure (CDI) laws in 2017, and China acknowledging from as early as 1999, that ‘internet warfare [was]…of equal significance’ to kinetic war (PLA Daily in Nsarchive2.gwu.edu, 2018). Similarly, the private sector has sought to develop regulations regarding conduct, with over 30 technology corporations signing a ‘Digital Geneva Convention’ in April 2018. Companies from states perceived as most to blame for cyber-hostilities were, however, notably absent (Hern, 2018).

Bilateral deals and regional organisations have similarly begun to address issues of regulation, but principally in relation to cyber cooperation, defence and lower- threshold cyber-activity. The 2001 EU Council Convention on Cybercrime and its 2006 Additional Protocol established mutual assistance to enforce and reconcile domestic laws, and fight cyber-crime. It was signed by 41 nations, including the US, Canada and Japan. Post-Estonia, NATO established the Cooperative Cyber Defence Centre of Excellence (CCDCOE) in Tallinn, and at the 2018 Brussels Summit agreed to establish a Cyberspace Operations Centre as part of NATO’s strengthened

Command Structure, reaffirming cyber-defence as a core task of collective defence (although the exact threshold for Article 5’s invocation remains unclear).

Similarly, the Shanghai Cooperation Organisation (SCO) has been increasingly focused on cyber-security since the mid-2000s, promoting a state and information- control-focused approach (a contrast to Western preference for a multi-stakeholder approach, incorporating private sector and civil society) (Maduz, 2018, 8). In 2015 several member states, including Russia and China, submitted an International Code of Conduct for Information Security to the UN. Intended ‘to push forward the international debate on international norms on information security’ (Letter to UN General Assembly, 2015), the UN remains limited in its ability to enforce norms. Indeed, despite confirmation by a UN GGE (2013) that international law, and particularly the UN Charter, applies to cyberspace, there was no consensus on IHL’s applicability. While regional efforts illustrate a positive state willingness to cooperate, emphasis on defence, sovereignty, territoriality, national security and regime stability (McKune, 2015) threaten to cement existing fissures and heighten tension in the international community regarding cyberspace regulation. There remains vital need for truly global cooperation. c. Defining cyberspace:

In broadest terms, cyberspace is ‘the global digital communication and information transfer infrastructure’ (Cornish et al., 2010, 1). It is a ‘a global domain within the information environment consisting of the interdependent network of information technology infrastructures and resident data, including the Internet, telecommunications networks, computer systems, and embedded processors and controllers’ (US DOD, 2018, 59). In assessing the PoD’s applicability to cyberwar, it is crucial to understand the unique dynamics of cyberspace, particularly in relation to a) causality and temporality; b) territoriality and spatiality; c) de-materialisation; and d) deterrence. This dissertation argues cyberwar necessitates fundamental reassessment of how such concepts relate to conflict, and demands an expansive definition of existing IHL which would be usefully clarified in an ICWC.

Territoriality and spatiality: Spatial dynamics in cyberspace generate significant debate. Cohen (2007, 10) presents three schools-of-thought: cyberspace as a ‘utopia’ – a separate space; an ‘isotopia’ – a space that continues existing space; and an ‘heterotopia’ – a space where ordinary rules of conduct are transformed, alongside a relational aspect maintaining its connection to a ‘real’ space. Such distinctions are futile and counterproductive. Cyberspace is defined by its existence within and across so-called ‘real’ and ‘separate’ spaces. It consists of multi-faceted layers: (1) a physical layer of computers, cables, integrated circuits and communications infrastructure; and two virtual layers of (2) software logic, and (3) data packages and electronics (Tabansky, 2011, 3). The unique rationale of cyberspace is its ability to simultaneously continue, transform, adapt and create behaviours across both a physical and virtual dimension.

This significantly impacts notions of ownership and territoriality, with particular debate regarding cyberspace as a global commons. Loader (2004) argues the ‘internet’ with multi-stakeholder usage and ownership is hard to deem a global commons; but the resultant (cyber)space between such technology is. The EU

Institute for Security Studies (Stang, 2013, 1) and the Indian Defence Review (Kumar, 2015) reiterate this conclusion, labelling cyberspace the youngest global commons. This reflects how physical nodes of cyberspace exist within states subject to national law, but cannot be controlled with certainty (Data Quest, 2012), and inevitably participate within global networks. Thus cyberspace enjoys a unique dynamic. It is both decentralised, yet highly interconnected (Melzer, 2011, 4); a- territorial and borderless (Wu and Goldsmith, 2006, 23), yet not immune to territoriality (Roscini, 2014, 24).

Causality and temporality:

The centrality of (physical) effects-based approaches and kinetic-effect equivalency frameworks to cyberspace and the application of IHL stems, in part, from the assumption that IHL’s primary purpose is to mitigate against the direct and immediate consequences of ‘armed force’. Cyberspace, however, provides new targets and new methods of attack that have different patterns of causality and temporality – a logic bomb sitting idle in a system until triggered at a set time (Schmitt, 2002, 84) a contrast to a kinetic bomb causing immediate material destruction upon impact. This dissertation contests belief that if harmful effects are not directly or immediately experienced, they fall outside IHL’s ‘temporal’ scope.

In cyberspace, frequently the secondary effects of an attack most demand our focus. Collateral damage can often be felt before (or indeed instead) any direct damage is noticed, such as in Iran when only the failure of the centrifuges altered technicians to a fault and malware that had been long-present and undetected. Cyber-operations used as a facilitatory tool of subsequent kinetic (or cyber) attack, such as Israeli incapacitation of Syria’s air-detection system before bombing an alleged nuclear facility, further expand disconnect between traditional cause-and-effect. How far such facilitatory operations should be deemed part of an ‘attack’ will be explored later, but how far causality and temporality can be stretched in cyberspace remains a difficult question.

Related problems are that of anonymity, attribution and neutrality. Nominally- neutral third parties can be powerless to stop their cyberspace infrastructure facilitating a cyberattack on another state, complicated by the difficulty of reliable attribution. This makes effective deterrence hugely challenging, and demands a different logic to, for example, nuclear regulation which is highly physical in tangible terms and exclusively under state control.

De-materialisation:

The assumption that ‘armed force’ is necessarily kinetic and involves asserting physical force through kinetic weapons is long-held. It stems in part from belief that the (only legitimate) aim of war is to weaken and prevail an adversary’s armed forces, achieved principally through military means and methods of bombing or troop deployment (Droege, 2012, 546). Despite Kaldor (2013) and Collier (2003) challenging fidelity to this traditional conception of the aim of war, the unique temporal and spatial dynamics of cyberspace further erode it. Cyberspace presents new targets and methods for attack (and defence) which are often partially or totally de-materialised. Traditional assessment of an intensity of an attack based on physical

75 destruction or death incurred no longer stands. The measure is still useful, but the concepts of ‘injury’, ‘damage’ and ‘destruction’ need wider re-interpretation in not solely physical terms.

Non-kinetic cyber-operations can achieve constructive or disruptive effects in and through the physical and virtual dimensions of cyberspace (Ducheine and van Haaster, 2014, 313). Cyber-operations can incapacitate physical infrastructure without materially destroying it. Whilst the ‘in’ versus ‘through’ dichotomy undermines the fact that near ubiquitous human interaction and utilisation of ‘cyber’ means no cyber-operation can expect to avoid ‘real’-world impact, it illuminates the wide-ranging potential of cyber-operations. For example, the use of malware to render useless 30,000 Saudi Aramco computer work-stations in 2012 demonstrates use of cyber-operations in cyberspace; in contrast to the 2010 Stuxnet attack which resulted in the physical damage of an Iranian nuclear facility.

Deterrence:

Scholars broadly agree that cyberspace favours the attacker (Libicki, 2009; Clarke and Knake, 2010). The rapid speed of cyber-operations put great pressure on defences (Sheldon, 2011, 98), while anonymity fosters impunity and reduces the anticipated cost of attack (Lindsay, 2015). Cyberspace’s virtual omnipresence, gives attackers greater scope to catch a defender unawares (Nye, 2010) – as Glaser and Kaufman (1998, 62) argue, this reach and mobility of force augments offensive power. Such dynamics have significant repercussions, appearing to reward – and thus encourage – those who strike first, quickly and pre-emptively, and have strong offensive capabilities. It augments the risk of misunderstanding, and of unintended escalation.

Belief in the advantage of offence, often results in fidelity to offence-based deterrence which involves persuading an adversary that any attack they unleash would be met with an immediate and costly response. At present, however, this does not hold in cyberspace (Eilstrup-Sangiovanni, 2017, 381). The intangibility and secrecy shrouding cyber-weapons means that states are unable ‘to credibly threaten a specific magnitude of retaliation, [which] fundamentally undermines strategic deterrence’ (Lindsay, 2015, 56). States cannot publicly reveal their offensive capability, because to do so would be to illuminate the very vulnerabilities in an adversary’s systems that give cyber-weapons their potency. Finally, attribution challenges render offence-based deterrence practically difficult to enforce.

Wider strategies of deterrence based either on denial, or threat of cross-domain punishment are similarly flawed. Denial involves impenetrable defences which is difficult when offensive-action has the advantage, while cross-domain counter- measures still rest on reliable attribution, and must be carefully regulated so as not to sanction disproportionate non-cyber response. A better approach would therefore be to redress the factors that limit effective deterrence – namely to improve communication and transparency in cyberspace, clarify ‘rules’ of conduct, and create a mechanism of collective and reliable attribution. This dissertation argues that an ICWC would help achieve these objectives.

Summary:

This Chapter has sought to establish a framework of analysis within which to anchor subsequent discussion. It has demonstrated the proliferation of state (versus-state) use of increasingly sophisticated cyber-weaponry, which has prompted national and regional efforts to bolster offensive and defensive capabilities, but has not been translated into international norms regarding regulation. The unique attributes of cyberspace mean that, despite broad acceptance that IHL applies to cyberwar, there is no consensus on how it does so. The particularities of such debate, and how divergence of opinion could be overcome, will be explored in the following chapters.

II – International Humanitarian Law And Cyberwar

IHL applies only to ‘armed-conflict’; distinguishing between NIACs and IACs (this paper addressing only the latter). Article 2 of the Geneva Convention (1949) outlines its application ‘to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contacting parties, even if the state of war is not recognised by one of them’. Determination of an IAC no longer requires formal declaration of war, with the ICTY’s definition of an IAC as existing ‘whenever there is resort to armed force between states’ (Tadic, ICTY, 1999) now widely accepted as customary law. This raises several questions: what constitutes ‘armed force’; what is encompassed by the term ‘State’; and how can cyber-attacks be reliably attributed to states. Debate regarding the PoD’s applicability to cyberwar is futile without ascertaining when a cyber-attack amounts to an IAC subject to IHL. This section therefore briefly outlines the origins, aim and scope of IHL; and explores what thresholds of ‘armed force’ and state-attribution legally constitute an IAC.

It argues the threshold of ‘armed force’ needed to constitute an IAC in cyberspace is the ‘deliberate and hostile use by a State of a cyber-weapon with the intention of causing injury or death to persons, and/or to significantly disrupt, damage or destroy another State’s strategic assets or critical national infrastructure (CNI)’ (Eilstrup- Sangiovanni, 2018, 382). This refers to ‘vital assets whose destruction may have a colossal effect on a state’s national security and…capacity to operate normally’ (Salzman, 2013, 43), such as military and defence constellations, electrical power grids, central banking systems and government agencies (ibid, 44). This is distinct from politically-motivated information warfare, or cyber-espionage. To reflect cyberspace’s unique de-materialised dynamic, damage and destruction are not measured in purely physical terms. It argues that existing IHL’s classification of cyber-armed conflict is theoretically sufficient to balance military necessity and humanitarian considerations. As ever, however, lack of clarity, attribution challenges, and limited enforcement power limits its applicability in practice. Chapter Four will examine how such practical shortcomings can be redressed through the embedding of existing IHL within an ICWC.

Cyberspace is unequivocally a legal domain. Belief that ‘legal concepts do not apply in cyberspace’ (Barlow, 1996, 1) due to it’s a-territorial, borderless, ubiquitous character; or that it should remain an open, participatory and decentralised domain, unhindered by legal regulation (Wu and Goldsmith, 2006, 23) is tautological. These inherent characteristics necessitate efforts to promote the application of international law in cyberspace. International law’s application to cyberspace is now largely undisputed (Gill in Tsagourias et al., 2015, 366), with a 2013 UN GGE report on Developments in the Field of Information and Telecommunications, ‘paving the way forward for anchoring ICT security in the existing framework of international

77 law’ (2013, para. 4). The unique attributes of cyberspace do, however, make regulation difficult – particularly efforts to apply existing law conceived in relation to conflict on land, sea and air. This is certainly evident in relation to IHL, but could be tempered through clarification outlined in an ICWC.

a. IHL – Origins, Aims and Scope:

In broadest terms, IHL seeks to restrict the means and methods of warfare to balance military necessity with humanitarian concerns (Shaw, 2014, 850). Synonymous with jus in bello, the ‘law of Geneva’ protects those not (or no longer) directly participating in hostilities, while the ‘law of the Hague’ establishes the obligations and rights of belligerents (Melzer ed., 2009, 5). It is equally applicable to all parties, and to all forms of warfare, regardless of the weapons employed (ICJ Advisory Opinion, 1996, 226). Codification began in 1864, with most notable recent developments regarding civilian protection being the 1907 Hague Convention, the four Geneva Conventions of 1949 and Additional Protocol I of 1977, which outline the principle tenants of distinction, proportionality, discrimination and precaution.

Customary IHL is also influential, and is binding to all states (except persistent objectors). This ‘general practice accepted as law’ is derived from State practice which is sufficiently dense (widespread, representative, frequent and uniform), and accompanied by State belief that such practice is required, prohibited or allowed (Melzer ed., 2009, 17). Its sources include treaties, national legislation, military manuals, case law, and the reports of international organisations such as the UN and ICRC. b. Classifying ‘armed force’ in cyberspace:

The Manual (Schmitt ed., 2013, 71) defines ‘armed force’ as the existence of ‘hostilities, which may include or be limited to cyber operations’. Hostilities ‘presuppose the collective application of means and methods of warfare (ibid, 71), defined as ‘cyber weapons and their associated cyber systems’, and ‘the cyber tactics, techniques and procedures by which hostilities are conducted’ (ibid, 118). This is a hugely expansive definition, reflective of their belief that the threshold of IACs should be kept ‘relatively low’ (ibid, 75) and treaty law’s stipulation that no level of intensity or duration need be reached before an IAC can be declared (Fleck, 2009, 37).

In practice, however, such expansiveness leads to definitional confusion and conceptual dilution, threatening to endanger civilians by increasing the likelihood that the PoD is disregarded and conduct that should be defined as an IAC escapes the regulation of IHL. The danger of such confusion is reflected in the split of the IGE regarding whether damage from Stuxnet met the ‘armed force’ threshold (Schmitt ed., 2013, 56). It is crucial that the ambiguity of IHL does not allow states to evade the responsibility that the existence of an IAC and invocation of IHL subjects their conduct to. The Manual’s response to this definitional confusion and low-threshold is to advocate – or recognise the need for – ‘such incidents [to] be evaluated on a case- by-case basis in light of the attendant circumstances’ (Schmitt ed., 2013, 75). This, however, is an unsustainable approach.

As customary law dictates, a threshold is crucial to ensure the concept does not become so diluted as to become irrelevant. Although Schmitt (2002, 365) advocates an extremely low bar, he nonetheless affirms that ‘the requirement of ‘armed force’ in cyberspace should be understood as shorthand for activities of a particular nature and intensity’. Traditional efforts to classify the nature and intensity of ‘armed force’ have centred on instrument, targets and effects-based approaches; this dissertation favouring an amalgamation of the second and third. A traditional instrument-based approach is highly limited. It contends that cyber-operations can never constitute ‘armed force’ because they ‘lack the physical characteristics traditionally associated with military coercion’ (Hollis, 2007, 1041). Defining ‘instruments’ in strictly physical, kinetic terms renders it unable to apply to digital code in a virtual environment, regardless of severity of effects (Handler, 2012, 48). It undermines IHL’s efforts to mitigate violent effects, and contravenes the ICRC’s (Pictet ed., 1952, Art.2) stipulation that ‘armed conflict’ is not contingent on ‘the intervention of cumbrous machinery’.

Targets-based approaches argue ‘armed force’ requires an attack directed against CNI (DeLuca, 2013); regardless of the operation’s nature or severity of effect (Sharp, 1999, 129). It insightfully averts excessive emphasis on grievous consequences, recognising ‘damage’ in cyberspace is not always in tangible physical terms (Waxman, 2011), thus transferring in practice the ICJ’s (Nicaragua, 1986:) ‘scale and effects’ criterion. However, it can be ‘too over-inclusive’ (Hollis, 2007, 1042), threatening to unlawfully escalate a situation (Sklerov, 2009, 70) and considerably endanger peace (Hathaway et al., 2012). Given states have freedom to define their own CNI (UN General Assembly, 2004), there is a lack of definitional clarity, raising questions such as whether the compromising of sensitive military information should rightly be classified as ‘armed conflict’ (Joyner and Lotrionte, 2001, 12).

An effects-based approach rightly classifies as ‘armed force’ cyber-attacks that cause, or are reasonably likely to cause, injury or death to persons, or damage or destruction to objects, equivalent to kinetic attacks (Schmitt ed., 2013, 68). As Droege (2012, 533) notes, if a computer-network-attack causes planes or trains to collide, resulting in death or injury, it would not be logical to treat the situation differently from equivalent, but kinetically-conducted, attacks. This prevailing view is hard to contest, and is useful to make possible the classification of non-kinetic weapon-attacks as ‘armed force’. However, this ‘kinetic-effect-equivalency’ test (Dinniss, 2011) fails to account for the de-materialised dynamics of cyberspace. ‘Injury’ to persons, or ‘damage and destruction’ to objects should thus be interpreted more expansively than in solely physical terms. Whilst wider constraints of inconclusive attribution prevents attacks against Estonia being definitively labelled an IAC (Schmitt ed., 2013, 68), an expansive effects-based approach would give scope to classify similarly indiscriminate attacks against civilians and civilian infrastructure (Lucas, 2017, 116) as ‘armed force’ subject to IHL. c. State Origins and Attribution:

For a cyber-attack to constitute an IAC it must be conducted by, directed against, and attributable to a State. IHL defines ‘State’ as a national government, the armed forces, or de jure state organs such as law enforcement or intelligence agencies (Ducheine in Tsagourias et al., 2015, 211). It also includes any entity or person

79 afforded such status in accordance with internal state laws, providing they are acting in that capacity in the particular instance and not in error (Draft Articles, 2001, Art.4-5). This can be relatively straight-forwardly applied to cyberspace in theoretical terms. If the Estonian Cyber Defence Unit (embedded within the Estonian state defence forces) launched a cyber-attack, existing IHL could easily attribute it to the Estonian state. Similarly, if Theresa May’s threat of launching a ‘cyber-war’11 to disrupt the GRU in retaliation for the (alleged) Russian Salisbury nerve-agent attack (The Times, Elliot, 2018) came to fruition, it would be theoretically attributable to the British state.

More complicated, however, is the well-established practice that the actions of non- state groups under the ‘overall control’ of a state, will be attributed to that state (Tadic, ICTY, 1999, para.137). Defining ‘overall control’ in cyberspace is highly difficult. The Tadic Case (ibid) argues it exists when a state ‘has a role in organising, coordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support to that group’. The Manual demonstrates how such a definition can apply to cyberspace, noting that ‘if State A exercises overall control of an organised group of computers hackers that penetrate State B’s cyber-infrastructure and cause significant physical damage, the armed conflict qualified as ‘international’ in nature’ (Schmitt ed., 2013, 73, emphasis added). Despite IHL’s theoretical applicability, several practical challenges exist. This dissertation also contests the ‘physical’ interpretation of damage, proposing an expansive reading in de-materialised terms.

Whilst the ‘overall control’-test theoretically applies to non-state groups, it is harder to apply to individual conduct or insufficiently organised groups (Schmitt ed., 2013, 73). The ICTY (Tadic, 1999, para. 132) writes that such individuals or groups must receive specific state instructions. Moreover, as Chapter Three will discuss, the criterion of ‘organised’ demands a leadership structure, and enforceable internal disciplinary system that is near impossible in a purely virtual group. Practical attribution challenges also undermines IHL’s applicability in practice. As the Manual notes, ‘as a practical matter, it may be difficult to ascertain whether a State is controlling a non-State actor’s cyber-activities’ (Schmitt ed., 2013, 72). This may disqualify notable hacktivist groups – and states – from having their conduct subjected to IHL. A lack of definitive evidence, for example, that hacktivists involved in the 2007 cyber-attacks against Estonia operated in accordance with specific state instructions, or were endorsed by a state, prevents it being classified as an IAC.

Another example is that of Syrian Electronic Army (SEA), whose relationship to the Assad state, and status as an ‘organised’ group, is highly contested. In 2016, the FBI added two alleged members of the computer hacker group to its cyber ‘most wanted’ list (Bertram, 2017, 1), stating that they had ‘provide[d] support to the Assad regime…[and] sought to harm the economic and national security of the US in the name of Syria’ (FBI News, 2016). Al-Rawi et al. (2014) label the group a direct proxy force of Assad, while Motherboard (2013) declared its members barely more than amateurs, and a mere adjunct to the Syrian conflict. Bertram (2017, 3) rightly

11 ‘Cyber-war’ is here used non-normatively and purely descriptively. May’s proposed attack is unlikely to surpass in intent or practice the requisite level of ‘armed force’ to constitute an IAC. Moreover, whilst IHL applies regardless of the legality of resort to armed force, the jus ad bellum element of this case is complicated by the fact it is a response to another difficult-to-classify attack.

80 concludes that the ‘proxy-or-not’ binary approach is unhelpful, and that the strategic logic of the SEA is as a group ‘distant enough from the Assad regime to provide plausible deniability, but close enough to interpret and meaningfully pursue state political goals in cyberspace’. Although there are overlapping bodies of domestic and international law that also regulate the conduct of such groups, there is a real danger that IHL’s ambiguity and attribution challenges give states freedom to act with unregulated impunity through proxy non-state groups. This puts notions of military necessity and humanitarian consideration at great risk.

Given the ease with which cyber-weapons can be acquired, it is increasingly possible for non-state groups and individuals to launch cyber-attacks without state support. How far the actions of so-called ‘patriotic hackers’ whose conduct promotes state- interests and is not challenged by that state, should then be attributable to said-state remains an important question. Assad may not have had ‘overall control’ of SEA, but there is little doubt he let them act. Indeed, the domain name for its website was registered by the Syrian Computer Society, previously directed by Assad (Geers et al., 2013). As non-state actors whose conduct aids the Syrian regime in a conflict which also has a strong international element, the degree of responsibility that Assad should take is a pertinent question. Although the IGE agreed ‘that the threshold for internationalisation is a high one’ (Schmitt ed., 2013, 73), ensuring states cannot act with impunity through non-state groups who can evade accountability of IHL is of utmost importance.

Summary:

This Chapter has demonstrated that existing legal criteria to classify an IAC can theoretically be applied to cyberwar. While concepts of ‘armed force’ are sufficiently expansive to cover a variety of de-materialised cyber-operations, there is a lack of consensus regarding where this threshold lies. This undermines the PoD’s aim to balance military necessity with humanitarian considerations, diluting its conceptual potency and practical enforceability. Such problems are augmented by the difficulty of reliable attribution which gives states – both alone and through non-state proxies – liberty to act with unregulated impunity. An ICWC providing definitional clarity, a collective attribution mechanism and authorisation of counter-measures would help redress such challenges.

III – The Applicability Of The Principle Of Distinction

Despite the centrality of the PoD to achieving IHL’s aim of balancing military necessity and humanitarian considerations, it is subject to significant erosion. The ‘civilianisation’ of conflict, rise of PMSCs, and shift away from belief that weakening an enemy’s armed forces is the only (legitimate) aim of war, has complicated IHL’s demarcation of civilians and combatants. Cyberwar demands further re-assessment of how the PoD relevantly applies to cyberspace. This Chapter outlines the PoD, and asks three questions: what conduct is prohibited in cyberwar, and who and what are legitimate targets. It concludes that whilst IHL can usefully answer such questions theoretically, its utility is undermined by definitional ambiguity, attribution challenges and a lack of practical enforceability – obstacles Chapter Four proposes could be alleviated through an ICWC. a. The Principle of Distinction:

The PoD is a cornerstone of IHL and modern treaty law on armed conflict, first noted in the 1863 Lieber Code which emphasised ‘distinction between the private individual belonging to a hostile country and the hostile country itself, with its men in arms’. It stipulated ‘that the unarmed citizen is to be spared in person, property and honour as much as the exigencies of war will admit’ (1863, Art.22). The 1868 St Petersburg Declaration reaffirmed the need to ‘alleviat[e] as much as possible the calamities of war’ and declared weakening the enemy’s armed forces the only legitimate object of state conduct in IAC (1868, Preamble). It codified a theory of civilian immunity long-present amongst leading theorists on war, such as Rousseau who stated that immediately upon laying down or surrendering their arms, combatants ‘cease to be enemies or instruments of the enemy, and become once more merely men, whose life no one has any right to take’ (1762, 55).

Despite no explicit reference, Sandoz et al. (1987, 598) declare that the ‘entire system established at the Hague and Geneva was founded on the principle of distinction’. Article 25 (1899) prohibited ‘the attack or bombardment of towns, villages […and] habitations of buildings which [we]re not defended’, whilst Common Article 3 of the GCIII (1949) prohibited acts of violence against those who laid down their arms. The Additional Protocols (1977) expressly codified the PoD, with the tenants of Article 48 (API, 1977) reflected and developed in wider provisions, such as in Article 51 (ibid) which outlines specific protections afforded to civilians. The PoD is considered part of customary law (Henckaerts and Doswald-Beck eds., 2005), has been affirmed as central to the LOAC by both domestic and international courts, and its violation is considered a war crime (Rome Statute, 1998, Art.8).

The basic rule of the PoD is laid out in Article 48 of Additional Protocol I (1977):

“In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives” (API, 1977, Art.48)

In summary, it obliges all those involved in conducting hostilities to distinguish between who and what are legitimate military targets, and who and what should be protected from direct attack. To prevent ambiguity, these categories ‘are mutually exclusive and absolutely complementary’ (Melzer, 2008, 301), with every person being either a ‘legitimate military objective’ or ‘protected person’. There are, however, conditions when immunity is lost or gained. Broadly speaking, customary and conventional law prohibit attack against ‘peaceful’ civilians, medical/religious/civil defence personnel of the armed forces, and all persons hors de combat.

Those without explicit protection from direct attack include combatants; civilians ‘directly participating’ in hostilities; medical/religious/civil defence personnel; and persons hors de combat committing ‘hostile’ or ‘harmful’ acts outside of their legitimate function. The PoD involves not simply a distinction between different targets but different contexts of justification (Kasher, 2007, 152) – while ‘combatants’ are implied to be ‘military objectives’, not only, and not all, combatants

82 are legitimate targets (Melzer, 2008, 301). As such, a negative application of the PoD is often most useful, alongside debate about exactly what such categories constitute. Part c) and d) explore this debate, with Part b) examining what type of conduct is prohibited under IHL and the PoD. b. Prohibited conduct – distinguishing between ‘attack’ and ‘operation’:

The Manual writes that ‘although all members of the IGE agreed that launching cyber-attacks against civilians or civilian objects is unlawful’ (Schmitt ed., 2013, 97) views differed as to ‘which operations qualify as ‘attacks’, as [the] term is used in the law of armed conflict’ (ibid, 20). This debate should properly be seen as relating to two questions: 1) whether the PoD prohibits only ‘attacks’ or ‘operations’; and 2) how are ‘attack’ and ‘operations’ defined. Three schools-of-though exist regarding how existing IHL can be used to ascertain what acts are prohibited under the PoD – 1) that only ‘attacks’ are prohibited; 2) that all ‘operations are prohibited; and 3) that ‘hostilities’ are prohibited. This dissertation argues that only ‘attacks’ should be prohibited if the PoD is to apply usefully to cyberwar, but takes an expansive definition to include operations that do not necessarily result in physical destruction.

Belief that only ‘attacks’ (subject to definitional debate) are prohibited is a view held by most commentators (Droege, 2012, 554). Schmitt (2014) argues that the wording and structure of API (1977) suggests that Article 48 is merely a general rule of protection, which is then ‘operationalised’ in subsequent articles – hence its placement as a precursor of Article 49’s explicit definition of ‘attack’. It is clear that the drafters of Additional Protocol I did differentiate between general principles and specific rules. As Droege (2012, 555) argues, ‘it is difficult to depart from this dichotomy between military operations and attacks’. To this extent, Schmitt’s analysis is useful.

However, Schmitt’s analysis is based on a limited definition of ‘attack’ as ‘a cyber operation, whether offensive or defensive, that is reasonably expected to cause injury or death to persons or damage or destruction to objects’ (Schmitt ed., 2013, 92). Whilst it rightly interprets Article 49’s stipulation of attacks as ‘acts of violence against the adversary’ (API, 1977), as not ‘limited to the release [of] kinetic force…[but] violent consequences’ (Schmitt ed., 2013, 92, emphasis added), its conception of violent consequences maintains a physical dimension. It cites examples such as chemical plant intrusion leading to the explosion and atmospheric release of toxic gases (ibid, 115), or the taking control of a dam to open its valves and cause massive downstream flooding (ibid, 107). This is too materialised a definition. Yet the Manual demonstrates scope to de-materialise ‘violent consequences’, noting that ‘injury’ to individuals should be extended to severe mental suffering (ibid, 93). This should be extended in relation to objects. Thus, whilst it rightly argues ‘de minimus damage or destruction does not meet the threshold’ of attack (ibid, 92), the threshold should not be equated with mere intensity of physical destruction.

Exactly where this definitional threshold of ‘attack’ lies is hugely contentious. The majority of the IGE argued that ‘interference with functionality qualifies as damage if restoration of functionality requires replacement of physical components’ (Schmitt ed., 2013, 93), such as in the Aramco attack, where allegedly 60,000 computers had to be replaced (in Perlroth and Krauss, 2018). However, this disregards the de- materialised logic of cyberspace. This dissertation agrees with the few experts of the

Manual who contended that ‘interference with functionality…, while not requiring physical replacement…, qualifies as an attack’ (Schmitt ed., 2013, 94). If an object (including data12) is rendered unusable, this is sufficient to be deemed an ‘attack’. Similarly, a cyber-operation resulting in large-scale negative consequences, such as preventing email communication across a state (rather than physically damaging the system upon which transmission depends), would qualify as an ‘attack’.

Finally, it is crucial to note that this dissertation agrees with the Manual’s assessment that a cyber-operation which does not cause adequate harm to the target of said- operation, but causes ‘foreseeable collateral damage’ (ibid, 94) that would surpass the threshold of ‘attack’, would be classified as ‘attack’. This has significant repercussions for ‘facilitatory’ cyber-operations – those which alone might not qualify as an ‘attack’, but which facilitate the success of a subsequent kinetic, or cyber, attack. The facilitatory cyber-operation which incapacitated Syria’s air-missile defence system, allowing subsequent IDF bombing of an alleged Syrian nuclear facility, is unlikely to have qualified as an ‘attack’, but should be regulated under IHL. Whilst most operations following facilitatory-operations alone qualify as an ‘attack’, such as the IDF’s kinetic bombing, how these facilitatory-operations are classified and regulated is pivotal. There may be future scenarios when neither a facilitatory or subsequent operation alone qualify as an ‘attack’ but collectively unleash an adverse impact comparable to that of an ‘attack’. This raises questions of how temporal directness and causality are interpreted in cyberspace. An expansive interpretation of IHL, which does not necessarily equate directness, immediacy, causality and physical destruction with severity or qualification of ‘attack’, ensures that IHL retains relevance to the unique dynamics of cyberwar.

The second approach to prohibit ‘hostilities’ is championed by Melzer (in Droege, 2012, 55) who argues that ‘accurately understood, the applicability of the restraints imposed by IHL on the conduct of hostilities to cyber operations depends not on whether the operations in question qualify as ‘attacks’ (that is, the predominant form of conducting hostilities), but on whether they constitute ‘part of ‘hostilities’ within the meaning of IHL’. He insightfully argues that all cyber-operations designed to harm the adversary – either by directly causing injury, death, damage or destruction, or by directly adversely affecting military operations or capacity, must be regarded as hostilities (ibid, 28) This could include cyber-operations seeking to disrupt or incapacitate an enemy’s computer-controlled radar or weapons systems, logistics supplies, or communication networks. Melzer’s approach illuminates the interplay of cyber-operations across virtual and physical domains, and the facilitatory role that cyber-operations can have.

However, although Melzer’s approach is nuanced and useful, it makes it extremely difficult to draw a line between those facilitatory operations which this dissertation argues qualify as attacks, and those such as cyber-espionage, which can also prove foundational to a subsequent operation’s success, but should not rightly be prohibited under the PoD. Just as in kinetic conflict, certain operations can be legally directed against the civilian population (Sandoz et al., eds., 1987, para.1875), such as psychological operations which, in a cyberwar, might translate to transmitting emails to the adversary population urging capitulation (Schmitt ed., 2013, 96). Immediately prior to the 2003 Iraq invasion, ‘thousands of Iraqi military officers received emails

12 As this Chapter will go on to explore, this dissertation defines data as an ‘object’ (as that term applies in IHL)

84 on the Iraqi Defence Ministry email system’ telling them to place armoured vehicles and tanks in formation, and then leave them and return home (Clarke and Knake, 2010, 9-10). By incorporating both ‘operations’ and ‘attacks’ as ‘part of hostilities’ prohibited under IHL, Melzer’s definition complicates proceedings.

Similarly, prohibiting all ‘operations’ (Dinniss, 2015, 39) is too expansive, and while it explains the fact Articles 48, 51 and 57 (API, 1977) reference general rules limiting ‘operations’, is too broad to incorporate military necessity which cannot spare civilians from all operations. Thus most appropriate is an expansive interpretation of the PoD which prohibits only attacks. ‘Attack’, however, should be defined not purely in terms of physical damage, and incorporate facilitatory operations which sufficiently contribute to an impact comparable to an ‘attack’ – either in terms of anticipated military advantage, or damage to civilians or civilian objects. Exactly what ‘sufficient contribution’ constitutes remains, however, a grey zone of law. c. Who is a legitimate target in cyberspace?

Having confirmed that it is (expansively-defined) attacks that are prohibited, this section examines who can and cannot be legitimately targeted in cyberwar, regardless of the potential military advantage attacks or reprisals against them could achieve (Melzer, 2008, 302). It contends that existing law is theoretically and practically insufficient to adapt to the new dynamics of cyberspace, and fails to balance military necessity and humanitarian considerations.

Combatants:

The GCs (1949) and APs (1977) divide the population into ‘mutually exclusive and absolutely complimentary’ (Melzer, 2008, 301) categories. Conventional and customary law prohibit attack against civilians (API, 1977, Art.51), medical/religious/civil defence personnel of the armed forces (GCI, 1949, Art.24 on land; GCII, Art.36 on hospital ships;), and persons hors de combat (API, 1977, Art.41). A negative definition is often favoured, with the customary law defining civilians as ‘persons who are not…members of the armed forces’ (Blaškić, ICTY, 2004, para.751). This demands precise definition of what constitutes membership of the ‘armed forces’, which in cyberspace raises a number of issues. Legally-defined combatants also enjoy combatant immunity in conflict, another facet of balancing humanitarian considerations with military necessity.

Treaty law distinguishes two categories of combatant (GCIII, 1949, Article 4(1)): firstly, ‘members of the armed forces…as well as members of militias or volunteer corps forming part of such forces’, and secondly, ‘members of other militias and members of other volunteer corps including those of organised resistance movements, belonging to a Party to the conflict’ (ibid, 4(2)). An example of the first group in a cyber-context may be the Estonian Cyber Defence Unit, a voluntary unit of ‘patriotic individuals with IT skills’ (keitseliit.ee, 2018), structurally integrated into the Estonian Defence League, and acknowledged to assist the Estonian Defence Force (who coordinate the unit’s support efforts) (Ruiz, 2018).

Defining the second group is much harder. The Manual defines ‘belonging to’ as having ‘at least a de facto relationship’ with the Party in question (Schmitt ed., 2013, 35). Given the challenge of attribution this is highly difficult to reliably ascertain. The

85 example of APT28’s ambiguous relationship with the Russian government is a case- in-point. Although it is unlikely that APT28’s attacks amount to ‘armed force’ sufficient to excite an IAC, it remains useful to illuminate attribution challenges. It is widely claimed that APT28 is a Russian state-sponsored group. An investigation by FireEye – a Californian-based cybersecurity firm – supports this view, revealing that over 97% of its malware samples were compiled from 8am-6pm during the working- week of major Russian cities; that until 2013, its code was consistently built in Russian language settings; and that there is acute alignment between attack outcomes and Russian-state interests (FireEye, 2017, 4-11). Despite this, Russia denies all charges and it cannot be certifiably proved otherwise. This ambiguity threatens a dangerous situation where a non-state group could act as a proxy of a state, yet be protected from legitimate attack. It could also be that such a group was deemed a legitimate target, but lacked the safeguards traditionally afforded to combatants. In either scenario, military necessity and humanitarian considerations are undermined.

A further problem is the stipulation that to qualify as a combatant – to gain combatant immunity but also be legitimately targetable – four criteria must be fulfilled: 1) being commanded by a person responsible for his subordinates; 2) wearing a distinctive emblem or attire that is recognisable at a distance; 3) carrying arms openly; and 4) conducting operations in accordance with the law of armed conflict (Schmitt ed., 2013, 84). The Manual noted that ‘the majority of the IGE took the position that the four requirements are [also] implicit in the Conventions for members of the armed forces’ (Schmitt ed., 2013, 85). However, these criteria seem antithetical to the unique virtual dynamics of cyberspace, and threaten to create a situation whereby individuals with an uncertain relationship to the Party in question both lack combatant immunity, but are also considered legitimately targetable by an adversary force. This situation would directly undermine IHL’s foundational aim to balance military necessity and humanitarian concern. The remainder of this section will address these four criteria.

The Manual (Schmitt ed., 2013, 75) argues ‘being commanded by a person responsible for his subordinates’ demands a threshold of ‘organisation’. Based on case law (Limaj, ICTY, 2005) this requires at least a command structure, and an internal disciplinary system able to enforce compliance with, for example as the fourth criteria stipulates, the law of armed conflict. The IGE were divided as to whether the near impossibility of enforcing this in a purely virtual setting would preclude qualification of online groups as combatants (Schmitt ed., 2013, 79). It notes acute distinction between acting ‘cooperatively’ with a leadership structure that coordinates activities, shares attack tools, and conducts cyber-vulnerability assessments (ibid, 79); and ‘collectively’ which means simultaneously and in pursuit of a shared goal, but without coordination (ibid, 80). Whilst in practice, a purely virtual group that – in all other respects fulfils combatant status – is unlikely to exist imminently, to render IHL applicable it is vital that such groups can be classified as combatants. The notion of being ‘commanded by a person responsible for his subordinates’ must therefore expand to account for the unique organisational and disciplinary logics of cyberspace.

This dissertation argues computers and software – as the means and methods by which cyber-attacks are conducted – can undoubtedly constitute ‘weapons’. Self- evidently, however, it is clear combatants cannot ‘carry [such] arms openly’. In

86 relation to the second criterion, the IGE contends that ‘there is no basis for deviating from [the] general requirement’ that combatants wear distinctive attire or an emblem (ibid, 86), with customary law also not providing an exception (Matheson, 1987, 425). Whilst it is technically possible for cyber combatants, perhaps dispersed individually across the world, with clear separation from a civilian population, to wear such attire, the stipulation is both unenforceable and farcical. Designed to help distinguish civilians from legitimately-targetable combatants, in situations where an attack might reasonably find such distinction difficult, its only valid utility in cyberspace would be on a bunker housing cyber-weaponry or combatants – to acknowledge it as legitimately targetable to kinetic attackers (assuming proportionality requirements are met). As Matheson (1987, 86) argues, ‘Cumulatively, these requirements make it highly unlikely that a purely virtual organisation would qualify as an organised armed group for the purposes of determining combatant status’.

The difficulty of efforts to apply these four criteria of combatancy to cyberwar acutely illuminates that IHL was not conceived in relation to the unique dynamics of cyberspace. It reinforces the need for an ICWC which would clarify how such tenants could practically apply to cyberwar, and amend them where necessary.

Direct participation in hostilities:

The immunity of protected persons from attack is premised on belief that they do not pose a military threat. If, however, medical/religious/civil defence personnel conduct ‘acts harmful’ to the adversary outside their express function; or hors de combat commit ‘hostile acts’, their immunity is terminated. As Article 51(3) (API, 1977) notes, civilians shall enjoy such protection ‘unless and for such time as they take a direct part in hostilities’. Yet as Schmitt (2015) argues, ‘it cannot be the case that you can drop a bomb on every 17-year-old kid that is hacking into your systems and military systems’. This section examines what constitutes ‘direct participation’, and what temporal scope is envisaged by ‘for such time’. It concludes that existing IHL can theoretically apply to cyberspace, if a restrictive approach which sets a high threshold for ‘direct participation in hostilities’ is combined with greater flexibility regarding ‘for such time’. Challenges of attribution and lack of definitional clarity limit, however, IHL’s practical utility.

IHL does not define ‘direct participation’, but the ICRC Interpretative Guidance (Melzer ed., 2009) usefully proposes three cumulative criteria – the belligerent nexus; threshold of harm; and direct causation, with broad expert support (Schmitt, 2014). The belligerent nexus means that an act must be in support of one party to the conflict, and to the detriment of the other (Henckaerts and Doswald-Beck eds., 2005). The threshold of harm states that an ‘act must be likely to adversely affect the military operations or military capacity of a party to an armed conflict, or alternatively to inflict death, injury or destruction on persons or objects protected against direct attack’ (Melzer, 2009, 47). The probability of harm – without its materialisation – is sufficient to cross the threshold of harm.

Such notions can be interpreted either liberally or, as this dissertation proposes, restrictively. A ‘liberal’ approach defines ‘direct participation’ as ‘all conduct that functionally corresponds to that of governmental armed forces’, including combat operations but also wider activities of planning, organising, recruiting and logistics.

It has been criticised as contradicting prevailing legal opinion and constituting ‘a significant setback to the post-WWII attempt to limit the scope of conflict’ (Watkin in Aldrich, 2005, 157). ‘Adversely affect’, for example, is too permissive in its lack of clarity, particularly given that cyberspace is an easy way to express discontent, and many ‘directly participating’ are not aware of the legal consequences of their actions. A liberal approach also contravenes state practice by arguing that civilians working in military objectives are ‘quasi-combatants, liable to attack…[a theory that] finds no support in modern State practice’ (Henckaerts and Doswald-Beck eds., 2005, 23). This approach stands antithetical to IHL’s aim to safeguard civilians.

The ‘restrictive’ approach equates direct participation with combat operations, arguing civilian immunity from attack should only be suspended when their conduct poses an ‘immediate military threat to a party in the conflict’ (Delerue, 2014, 335). This is distinguished from participation in the general war effort or support activities, as well as ‘peaceful’ time between specific military engagements. It presupposes that all organised armed groups are excluded from civilian status. In practice, despite the utility of a ‘restrictive’ interpretation, lack of state practice or treaty law makes it unclear where the line demarcating ‘direct participation’ in cyberwar lies. The ICTY writes that ‘it is unnecessary to deﬁne exactly the line dividing those taking an active part in hostilities and those who are not so involved. It is suﬃcient to examine the relevant facts of each victim and to ascertain whether, in each individual’s circumstances, that person was actively involved in hostilities at the relevant time’ (Tadic, ICTY, 1999, para.616.). As the frequency of cyberwar and civilian participation increases, this is an untenable position, rendering existing IHL inapplicable in practice.

An ICWC could provide important definitional clarity and attribution assistance, not simply reflecting but shaping state and individual conduct. Clarification of a threshold would also reduce ambiguity – individual citizens would have greater understanding of the repercussions of their actions, and it usefully help signify their intent. A restrictive approach is also more practically enforceable. As Schmitt explores, thousands of cyber-attacks were launched against Georgia not by the Russian state or Russian cyber units, but by individual ethnic Russians from across the world (Schmitt, 2015). Not only is there debate about what would constitute a proportionate response to direct participation in cyber-hostilities, action could not be practically taken against all those ethnic Russians directly participating.

The temporal scope of ‘for such time’:

To retain conceptual and practical relevance, however, this restrictive interpretation of ‘direct participation’ must be coupled with an expansive understanding of the ICRC’s notion of ‘direct causality’, and Article 51’s (API, 1977) stipulation of ‘for such time’. Cyberspace’s unique temporal dynamics mean mere translation of kinetic examples would be insufficient. The IGE affirms that ‘for such time’ in cyberspace would ‘at least include actions immediately preceding or subsequent to the qualifying act’ (Melzer ed., 2009, 67-68). This dissertation expands this further, agreeing with the view of some experts who argued that ‘participation’ extends for as long as a causal link exists (Dinstein, 2016, 147). In a cyber-context, a causal link could span from initial probing of a target system for vulnerabilities, to assessing post-attack damage to ascertain if ‘reattack’ is needed (Schmitt ed., 2013, 103).

Some experts argue that emplacement and activation by the same individual should be counted as separate acts of participation; or that individuals who launch repeated cyber-attacks reaching requisite thresholds of harm should have immunity restored for the periods between discrete attacks. This is unviable. As the Manual notes, it would create a ‘revolving door’ of direct participation and targetability (Schmitt ed., 2013, 104). Despite the challenges of an ‘affirmative disengagement approach’ (Melzer ed., 2009, 59), such as the difficulty of identifying thousands of individual declarations of disengagement, as Schmitt argues (2014, 510) continued civilian ‘opt- in-and-opt-out’ would quickly lead to disillusionment with the law, undermining the PoD and subjecting civilians to greater danger. Another critical question is that of delayed-effects, such as from logic bomb attacks. ‘Direct causality’ is not necessarily equated with immediacy of result. Thus an expansive interpretation which classifies ‘for such time’ as spanning from initial planning until after activation is most appropriate. d. What is a legitimate target in cyberspace:

Civilian objects are ‘all objects which are not military objectives’ (Art.52(1), API, 1977) – objectives not as operational goals, but ‘objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralisation, in the circumstances ruling at the time, offers a definite military advantage’ (Art.52(2), ibid). This definition is widely accepted and reflects customary law (Henckaerts and Doswald-Beck eds., 2005, Rule 8).

The Manual adds that ‘Military objectives may include computers, computer networks and cyber infrastructure’ (Schmitt ed., 2013, 107), reflecting the ICRC’s stipulation that objects are ‘visible and tangible’ (Sandoz et al., eds., 1987, para.2007). In relation to cyberwar, this raises several questions: 1) is intangible data an ‘object’; 2) can ‘location’ constitute network, rather than geographical, location; and 3) does the increasing precision of cyber-attacks obligate attacking forces to define a target in similarly precise terms at component or code, rather than network or system, level.

Is data an object?

Dinniss (2015, 41) distinguishes between content-level data, including the content of medical databases; and operational-level data, such as operating systems, SCADA systems and software application, upon which hardware functionality depends. Whilst an interesting distinction, it would delegitimise attack against a crucial dataset which could give decisive military advantage. This dissertation, therefore, accepts the Manual’s definition of data as ‘the basic elements that can be processed or produced by a computer’ (Schmitt ed., 2013, 211). However, it disagrees with the majority of the IGE who argue that, given the intangibility of data, it cannot be interpreted as an object (ibid, 108).

Two approaches exist to overcome this obstacle and ensure PoD’s applicability to cyberwar. Firstly, to argue that data is a tangible object. A US domestic court argued electronic data constituted a tangible object in relation to a case concerning Section 215 of the US Patriot act, and access of items under the FISA (in Mann, 2014), a precedent which could be expanded into international law. Moreover, Dinniss (2015,

44) contends that data is tangible as it has a physical and visible presence on the electromagnetic spectrum. This seems, however, a stretch in reasonable terms.

More useful is an expansive reading of IHL. Dinstein proposes dividing Article 52(2) (API, 1977) into two separate clauses. The first, that ‘attacks shall be strictly limited to military objectives’, can be taken as a stand-alone stipulation which makes no reference to tangibility, and would be more easily reconciled with the ambiguous physical status of data.

Tangibility is, however, an out-dated criteria that in today’s world leads to a manifestly unreasonable result’ (Dinniss, 2015, 44). This dissertation argues existing IHL can be interpreted to circumvent dogmatic fidelity to tangibility, without even the selective adoption and rejection of Dinstein. Close reading of Article 52(2) (API, 1977) is premised on a foundational distinction between people and things; civilian and military. Consider the Stuxnet malware – if it is not a military objective, then it is either a civilian object, or not covered at all. The very categorisation of Article 52 (ibid) functions on the fact that categories are mutually exclusive, and complimentary. It is difficult to argue that IHL intended to sanction the existence of ‘things’ that did not fall into any regulatory category; and neither need it be interpreted this way.

The Manual’s approach to intangibility is inconsistent, suggesting scope for an expansive interpretation that classifies data as an object. It defines ‘cyber weapons [as] cyber means of warfare…[that] include any cyber device, materiel, instrument, mechanism, equipment, or software used, designed, or intended to be used to conduct a cyber-attack’ (Schmitt ed., 2013, 199). In discussion of discrimination, ‘malware’ is explicitly referenced as a weapon (ibid, 130). To then argue that software and malware cannot be legitimately targeted because of the very intangibility that renders it able to conduct a cyber-attack (and thus qualify as a weapon), is tautological. It illuminates the ability of an expansive IHL to incorporate an intangibility requirement. This dissertation thus agrees with the view of a minority of the IGE experts – namely that, ‘for the purposes of targeting, data per se should be regarded as an object’ (2013, 108).

The use, nature and purpose criterion apply straight-forwardly to data in cyberspace. Less clear is how far network, as opposed to geographic, location could fulfil the ‘location’ criterion. Dinniss (2015, 49) rightly argues that the location (albeit also use, nature and purpose) of kill switches, primary nodes of state internal telecommunication networks, or undersea cable landing points could offer definite military advantage. This should not, however, be extended too far. The US sanctions targeting objects which make ‘an effective contribution to the enemy’s war-fighting or war-sustaining capability’. Taken to its logical extreme, this could legitimise attack on numerous civilian objects and is too far removed from mere ‘military advantage’ (API, Art. 52(2)).

Dual-use targets:

Dual-use targets have long posed moral and legal challenges. The term, however, does not exist in LOAC as military and civilian targets are considered binary, mutually-exclusive entities. As the Manual (Schmitt ed., 2013, 113) notes, ‘an object used for both civilian and military purposes – including computers, computer

90 networks, and cyber infrastructure – is a military objective’. It is unclear how far this concept extends in cyberspace – taken to its logical conclusion, the entire internet could be classified as a military objective. However, as the Manual (ibid, 114) rightly states, almost any attack would have to be restricted to discrete parts of the internet, and act to minimise civilian harm.

The definition of military objective can also be narrowed-down. Dinniss (2015, 51) gives a useful example of ‘a dual-use system or network, including a switch that contains altered code to copy and possible amend data passing over the network for military purposes’. If the network or system is defined as the military objective, civilian data existing within the system is no longer deemed civilian, but part of the military objective. In contrast, if the military objective is defined as the switch or malware (at component or code-level), civilian data existing within the system remains a civilian object which must be considered.

As the precision of cyber-weaponry increases there is an obligation to define military objective as narrowly as possible, to fulfil the foundational humanitarian aim of the PoD in cyberwar. Moreover, it fits with wider tenants of API (1977): Article 57(2) demands ‘all precautions in selecting both means and methods of attack’; Article 57(3) stipulates selection, in cases of a choice of target, the one likely to minimise civilian harm; whilst Article 51(5) prohibits treating multiple objectives as a single target or use of indiscriminate ‘target area’ bombing. Stipulation of ‘where possible’ maintains scope for discretion, allowing networks such as armed-forces’ command- and-control systems to be classified as military objectives, and alleviating fear that a narrowed-down definition could compromise military advantage.

This links to Lucas’ (2017, 117) observation that Stuxnet ‘may have been the first purely ethical weapon ever deployed’. To both encourage pursuit of the highly discriminate cyber-attacks fully aligned with the PoD, but also prevent the unleashing of cyber-weaponry’s simultaneous potential to cause great and indiscriminate destruction, it is vital that it is extremely tightly regulated – as Chapter Four will argue, through an ICWC.

Summary:

This Chapter has argued the PoD can broadly apply to cyberwar. It proposes prohibiting ‘attacks’ (though not defined solely in relation to physical destruction) and setting as narrow as possible a definition of ‘military objective’. Similarly if an expansive interpretation of ‘for such time’ is coupled with a restrictive approach that sets a high threshold for ‘direct participation’ civilians can enjoy sufficient protection. Close reading of treaty law and the Manual (Schmitt ed., 2013) also gives scope to define data as an object, and circumvent ICRC’s stipulation of tangibility. IHL is less applicable regarding combatants. Dogmatic fidelity – without an escape through customary law – to the four criteria of combatancy, not only loses relevance in cyberspace but is not possible, threatening to exclude certain ambiguous groups from either civilian or combatant protection. In practical terms, defining ‘belonging to’ raises constantly present attribution difficulties.

IV – Operationalising Jus In Bello – The Case For An Icwc

The Manual (Schmitt ed., 2013) is a publication majestic in scope and analysis. It is the most comprehensive exploration to-date of how IHL applies – or could apply – to cyberwar, and offers nuanced and valuable insight. As has been outlined in Chapter Two and Three, it is clear that much of existing IHL can apply usefully to cyberspace. It is also clear, however, that there remain a number of obstacles to IHL’s implementation in practice. The Manual does not create binding international law with enforceable consequences for misconduct (however such transgression is defined); has been roundly rejected by many non-NATO states; and illuminates the challenges of definitional clarity and reliable attribution. At present, these problems render existing IHL insufficient as a lone tool to regulate cyberwar. This Chapter therefore argues that existing IHL (and the work of the Manual) should form the basis of an ICWC which would a) supply information and clarify rules of state conduct and responsibility; b) increase transparency and aid reliable attribution; and c) offer incentives for compliance and authorise countermeasures for transgression. This section explores these three proposed institutional functions, whilst also addressing some of the objections – raised by politicians and scholars alike – to a potential ICWC.

Contemporary approaches to cyberwar regulation:

As explored in Chapter One, cyberspace regulation to-date has centred principally on national and regional security and defence cooperation. Global intergovernmental efforts to regulate cyberwar are subject to great debate. Expert views range from belief that any international agreement designed to constrain state action would be futile given its unenforceability (Clarke and Knake, 2010); to the view, as proposed by this dissertation, that an ICWC is valuable and much-needed, albeit difficult (Eilstrup-Sangiovanni, 2017). In between such extremes is belief that it is too soon for a binding international cyberwar treaty, which would have more success once states are accustomed to the norms and practices of new technology (Schmitt and Vihul, 2016, 44). Others argue that a “soft-law” strategy of voluntary norms and lose guidelines would have greater utility than formal obligations (Lucas, 2016, 13).

Indeed Lucas (2017, 117) argues that international norms are already crystallising, demonstrated in the broad proportionality, distinction and discrimination evidenced in the four commonly-cited examples of ‘cyber-war’ (non-normative use) in Estonia, Georgia, Syria, and Iran. This dissertation contends, however, that such examples merely represent the start of cyber-conflict likely to proliferate in scale and frequency. While norms are important, an ICWC has scope to reflect, shape and accelerate norm acceptance. Foundational to objections to an ICWC is the assumption that compliance and enforcement, let alone participation in such a treaty, are impossible in cyberspace (Nye, 2010). While these do represent acute challenges, an ICWC with institutional functions of information provision, collective attribution, incentives for compliance and counter-measures for transgression would be a useful starting-point upon which to build an effective regulatory framework for cyber conflict.

92 a. State conduct and state responsibility – information provision and rule clarification:

It is now widely accepted that international law applies to cyberspace (Consensus Report of the UN GGE, 2013, 2015), but how it applies lacks consensus. Without a clear understanding of what conduct is acceptable or not, and thus what response is proportional, ‘states may find themselves caught in endless spirals of opportunistic aggression and violent reprisals’ (Eilstrup-Sangiovanni, 2018, 393). As such, an ICWC would be able to authoritatively clarify some of the ambiguous and contentious threshold questions. There is significant expert disagreement regarding what conduct constitutes ‘armed force’ (Schmitt and Vihul, 2014b, 59), and at what point an offensive cyber-operation amounts to an ‘armed conflict’ (Schmitt ed., 2013, 65). Clarification is also needed regarding state responsibility, and what terms such as ‘overall control’ and ‘belonging to’ constitute in international cyber-armed conflict. As in earlier discussion of these issues, this dissertation makes the case for an expansive interpretation of existing IHL, but contends that drawing a threshold is more important, at least at this stage, than where this threshold is.

The most significant repercussion of this would be to help clarify state intention. State intention is included in this dissertation’s definition of ‘cyber-war’ and, particularly given that traditional means of detection and observation are not applicable to cyberspace, plays an important role. If a State was willing to violate a binding and explicit threshold (regardless of where that line was drawn), it reduces scope for ambiguity regarding its intentions (Clarke and Knake, 2010). As Simmons and Hopkins (2005, 625) argue, the ‘screening’ and ‘signalling’ effects of formal treaties have long been useful in this regard. Indeed, International Relations as a discipline emphasises the utility of signals in demonstrating intentions and helping avoid misunderstanding (Fearon, 1997). ‘By stipulating clear, binding rules of behaviour, an ICWC would thus allow states to signal their intent clearly through either obedience or disobedience’ (Eilstrup-Sangiovanni, 2018, 392). This would also make enforcement of punitive countermeasures for rule transgression much easier to enforce.

Critics argue that an ICWC would take too long to negotiate, with Finnemore (2011, 93) stating that ‘negotiating treaties can be a slow and cumbersome process, ill- suited to fast-changing issues like cyber security and internet governance’. However, many of these critics instead propose the development of ‘norms’ and state practice. Schmitt and Vihul (2016, 43) write that ‘Interpretive dilemmas concerning treaty law will be resolved through the recurrent practice of states in their application’, with the Manual making repeated reference to issues ‘likely to be resolved through State practice’ (Schmitt ed., 2013, 58). Mazanec (2015) outlines a three-stage process of ‘norm evolution’ in cyberspace: norm emergence, norm cascade, and norm internalisation. He reminds us that it is a long and slow process, one that an ICWC could aid and accelerate.

It must be remembered that the development of treaty law and norms is a complimentary and mutually beneficial process. Treaty law both reflects and informs customary law, state practice and international norms. This symbiotic development reduces the constraining element of a treaty, challenging Lucas (2017, 112) and Finnemore (2011, 91) who argue an ICWC would be unable to adapt to fast-paced technological change. As Eilstrup-Sangiovanni (2017, 400) notes, ‘Norm creation

93 and acceptance is slow, but usually accelerated by formal treaty negotiations which add political weight and visibility’. Moreover, the process itself is useful. Just as the demarcation of any threshold serves a purpose, so would genuine efforts to negotiate an international agreement. Given that – at least at present – cyberwar is not threatening mutually-assured-destruction, an ICWC is unlikely to stipulate wholesale bans, reducing the likelihood of a constraining and unadaptable treaty. Indeed, much of an ICWC would be based on existing IHL, and efforts such as by the Manual (Schmitt ed., 2013) to apply to cyberspace – hence why it is not too soon to negotiate. Agreed, cyber weapons are relatively new, and historically technologies have existed longer prior to negotiation, but this would be to interpret the problem backwards – the point of a treaty is not just to cement state practice, but shape it, in a far more farsighted manner.

There are clear benefits to loose, informal co-operations, as they are easier to persuade reluctant states, and useful in situations of uncertainty and asymmetric power-relations. However, we are already seeing the division of the world into informal groupings of smaller groups with fairly homogenous interests (such as SCO and NATO). This is a dangerous development, cementing existing fissures and tension. The ‘larger and more heterogeneous a group, the greater the demand for centralised coordination, monitoring and verification’ (Eilstrup-Sangiovanni, 2009, 402) Rationalist cooperation theory contends that the establishment of clear norms and highly specific, centralised agreements is a standard method to overcome situations of uncertainty (Lipson, 1991, 50). An ICWC thus does not challenge norm- evolution, but is simply a framework within which such norms can be anchored. It would also help ensure compliance at domestic level – binding treaty obligations (as opposed to ‘voluntary norms and guidelines’) giving governments greater force to exert against domestic law-makers to ensure they take sufficient implementation steps. b. Transparency and attribution:

Clarification of conduct is, however, futile unless transgression can be identified and is met by real costs. As Eilstrup-Sangiovanni (2018, 394) argues, ‘no meaningful mechanism for enforcement and punishment can be devised without first solving the problem of how to identify transgressors’. It is her view that reliable attribution is possible, and that an ICWC should establish a collective mechanism to enable more reliable and faster attribution. Despite prevailing belief that the challenge of attribution in cyberspace makes regulation near impossible, many experts agree that, given sufficient resources and time, it is possible, particularly in relation to state- directed cyber-attacks against CNI in the context of an IAC (Lindsay, 2015). Indeed, speaking at the UNESCO symposium, Lucas declared that ‘the so-called “attribution problem” is neither all that big nor all that unprecedented’ (2011, 17). Challenging wide-spread belief that attribution in cyberspace must be 100% accurate (almost impossible in any context), he proposes the ‘Agatha Christie principle’: ‘namely, ignore the background distracts, and focus upon who stands to benefit most from the deed in question. Nine times out of ten, you’ve got your perpetrator and 90% certainty is probably close enough for government work’.

A collective attribution mechanism would have the resources to establish rapid emergency incident response teams (as NATO has), and train ‘digital forensics forces’ to examine physical evidence such as data storages devices. It was examination of

‘forensic details left in the malware’ that led to FireEye’s identification of Russian involvement in APT28 operations (fireeye.com, 2017). Attribution requires highly technical tools and knowledge, and likely access to wide-ranging intelligence (spanning individual nation-states or regional defence groupings). It parallels the CTBT – a multilateral treaty ratified by 166 states – which proposes a joint International Monitoring System, whereby (if completed) 337 facilities across the world would generate data, which could then be pooled (Ifft, 2005); data that no state alone could garner. The delegation of collective attribution to a neutral international organisation would also help reassure state actors that the sanctioning of retaliatory action against an alleged perpetrator of a cyber-attack, was based on credible identification of the transgressor, and not simply on political opportunism (Salzman, 2013).

The idea of an international attribution organisation features in the discussion of James Lewis of the CSIS who, in an August 2018 statement on ‘State Practice and Precedent in Cybersecurity Negotiations’, lamented the lack of an IAEA for cyberspace. He argues that one proposed solution to the challenge of attribution in cyberspace is the creation of a new international organisation – governmental or private – to investigate cyberattacks, and identify their source (Lewis, 2018, 5). However, as he writes, the unique logic of cyberspace is such that a model based on the IAEA would not be feasible. Desire to avoid mutually-assured-destruction, and its links to the UN ensures the (broad) compliance of states to the IAEA, whereas no such motivation exists in relation to cyber-weapons. The challenges are therefore not only the technical ones that Eilstrup-Sangiovanni outlines, but also political. The new dynamics of cyberspace make states cautious and, as ever, governed by self-interest – wherever this lies. This paper contends that these technical and political challenges are not insurmountable. If states can be incentivised into compliance (or know they will face repercussions for misconduct) then this would make hope of regulation to uphold principles of humanitarian considerations more likely to be effective.

It argues that challenges of attribution and verification are not unique to cyberspace – chemical weapons are ‘dual-use’ in some respects and often hard to distinguish from research-and-development programs. This has not rendered the Chemical Weapons Convention obsolete. Despite the recent chemical weapons attack in Syria (Arms Control Association, 2018), for the most part forceful obligatory restrictions, strict domestic reporting and implementation standards, stringent international monitoring, and highly punitive consequences for transgression has ‘deterred major transgressions’ (Eilstrup-Sangiovanni, 2018, 399). Indeed, in some ways cyber- attribution is easier, as the need for verification arises after it has been used, rather than to determine – as with nuclear – mere weapon development and possession. The question is then, of course, how to respond. The existence of a collective attribution system, under an international authority, would be a useful first port-of- call to answer such questions. c. Counter-measures and incentives:

Self-evidently, the success of an ICWC rests foundationally on states being willing to sign-up. As critics rightly note, this will not be an easy task, but one aided by incentives for participation. An incentive-based ICWC would have dual-fold impact in addressing asymmetry in cyberspace, presenting different opportunities and advantages for more and less-powerful states. Many argue US antipathy to a binding

ICWC stems from its fear that a legal treaty would reduce its ability to exploit its technical prowess, restricting its freedom of action, whilst allowing other states to catch-up and act with impunity. However, not only are other states likely to catch-up at some point regardless, but if more advanced cyber-powers – like the US – take a leading role, they have scope to shape how such development evolves, before such technologically-developing states gain offensive-cyber weapons. This parallels nuclear arms-control, where nuclear powers have, through offers to develop civilian nuclear technology, limited nuclear weapon proliferation, whilst maintaining a clear hierarchy (a core aim of powerful, self-interested states).

For less-technologically advanced states, for example Georgia, less able to defend itself from the cyber-onslaught of Russia, an ICWC which promises a range of support and benefits to compliance is highly appealing. Eilstrup-Sangiovanni (2017) suggests this could include access to training, professional expertise, and capacity- building to improve national cyber-defence. Moreover, legal, technical and financial assistance would be key – to help states tackle non-state cyber-actors conducting hostile operations from/in domestic territories. Indeed, the CWC Technical Secretariat helps augment national protection from chemical attack through the provision of, for example, detection equipment and protective gear. If a similar system could be established for cyber-space it would prove a significant draw. Another useful element would be intelligence sharing, particularly state cooperation in investigating attacks routed through their territories. Finally, states could be incentivised to join through disaster-response support – a multi-lateral recovery and reconstruction fund, and recognition of wider state assistance in the face of a severe attack (Clarke and Knake, 2010).

Once states have signed up, rules clarified, and attribution challenges addressed, a framework of legitimate counter-measures would be key. This dissertation has not addressed proportionality, and neither is there intergovernmental agreement on what this constitutes in cyberspace, but reprisals ‘commensurate with the injury suffered’ (Schmitt and Vihul, 2014a) would be crucial. As Carr (2011) argues, clarification of what nature and intensity of cyber-action constitutes what nature and intensity of response would give credibility to deterrence and helps prevent infinite escalation of conflict. At present, while states may know how they classify ‘armed force’, it is advantageous not to publicly clarify this threshold too vigorously as it would encourage adversaries to push to the edges of this limit (Libiki, 2009, 9).

To offset this ‘advantage’, an ICWC would also need to clarify what counter-measures would be appropriate in response to hostile cyber-operations that fall below the level of ‘armed force’. There must be a carefully managed spectrum, which would also reflect the unique temporal dynamic of cyberspace but not promising to enforce severe, immediate or necessarily ‘in-kind’ reprisals (Lindsay, 2015, 58), but simply commit to identifying and punishing transgressors in an as timely and appropriate manner as possible. Cross-domain reprisals would, however, have to be carefully managed and assessed in proportionality analysis, to ensure cyber-attacks do not unwarrantedly legitimise economic sanctions or kinetic action (Kugler, 2009). By establishing realistic and practically enforceable counter-measures, deterrence is enhanced as a credible course of action. Eilstrup-Sangiovanni (2017) proposes joint authorisation of countermeasures. There is a danger that if delegated to international governments, political self-interest – evidenced, for example, amongst the P5 in the UN Security Council – would lead to stagnation, and render an ICWC simply another

96 reflection of regional defence alliances. As such, most useful would be delegation to an international independent body.

Summary:

This Chapter has proposed the development of an ICWC to overcome the obstacles identified by this dissertation as hindering the practical applicability of IHL – and the PoD – as a tool to regulate cyberwar. Such challenges include definitional confusion, a lack of reliable attribution, and limited enforceability of punishment for violation. Despite the numerous and acute difficulties of establishing an ICWC, institutional functions of definitional clarity, development of a collective attribution mechanism, and authorisation of counter-measures for transgression would help render IHL practically able to balance humanitarian considerations and military necessity. Incentives for participation would help states overcome reluctance to surrender (at least in part) their long-enjoyed exploitation of grey areas of law in the cyber-domain.

Conclusion The Principle of Distinction – a central tenant of International Humanitarian Law – is, in practice, not sufficiently able to balance military necessity with humanitarian considerations in cases of international cyberwar. In theoretical terms, existing IHL – as evidenced by the analysis of the Tallinn Manual – is sufficiently expansive to usefully apply to the unique dynamics of cyberspace. While there remains ambiguity about where, for example, thresholds of ‘armed force’ or ‘direct participation’ lie, appropriately liberal and restrictive approaches that reflect the distinct temporal and de-materialised logics of cyberwar can be convincingly supported through recourse to the tenants of the Geneva Conventions, Additional Protocol I, and customary law. Whilst there are aspects, such as dogmatic fidelity to the four criterion of combatancy, that are reconciled less easily, in theoretical terms the PoD is largely able to uphold its foundational aim of balancing humanitarian concern with military necessity.

In practice, however, the very expansiveness which gives IHL its utility, severely restricts its real-world value. A lack of definitional clarity and fissures within the academic and international community regarding what conduct constitutes, for example, ‘armed force’ sufficient to excite an IAC subject to IHL, undermines the PoD. Such problems are augmented by the challenge of reliable attribution, which severely limits the PoD’s practical enforceability of punishment for transgression. These obstacles dilute its conceptual potency, and encourages states to act with impunity. It also threatens to create situations where conduct that should rightly be subject to the PoD is left unregulated; or where civilians or non-state groups who should enjoy either immunity from direct attack or combatant status, are left in a vacuum of protection. This severely undermines the PoD, rendering it unable as a lone tool to sufficiently regulate cyberwar.

This dissertation proposes the development of an ICWC as a strategy to overcome such practical challenges. It contends there is much of great value within existing IHL, which should form the basis of an international convention that has institutional functions of rule clarification; collective attribution; and authorisation of counter-measures for transgression. In this way, an ICWC would reflect, shape

97 and accelerate norm development, acting as a framework within which existing and evolving norms could be enforced. As critics rightly contend, creating an ICWC would be a hugely difficult task, but this does not mean it should not be attempted. The mere process of negotiation would be useful, whilst the drawing of thresholds – wherever they may be – would have value in helping clarify permissible conduct, signalling state intentions, and building international confidence in cyberspace.

As noted throughout, much of this dissertation is inevitably speculative – reflective of the acute contemporary pertinence of this issue; and there is much of great importance it did not have scope to discuss. Of particular interest is the idea of cyberwar as (having the potential to be) ethically superior, and more able to fulfil the foundational aim of IHL to balance humanitarian concern with military necessity. As cyberwar and use of cyber-weaponry grows in frequency and sophistication, this aspect will be especially important to examine.

Bibliography:

Primary Sources:

Additional Protocol I: Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts. June 8. 1977. 1125 U.N.T.S. 3.

Additional Protocol II: Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-international Armed Conflicts. June 8. 1977. 1125 U.N.T.S. 609.

Additional Protocol III: Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Adoption of an Additional Distinctive Emblem. Dec. 8. 2005, 2404 U.N.T.S. 261.

AMW Manual: Harvard Program on Humanitarian Policy and Conflict Research, Manual on International Law Applicable to Air and Missile Warfare, with Commentary (2010) Anon, (2018). DOD Dictionary of Military and Associated Terms. [online] Available at: http://www.jcs.mil/Portals/36/Documents/Doctrine/pubs/dictionary.pdf [Accessed 13 Sep. 2018].

Articles on State Responsibility: International Law Commission, Responsibility of States for Internationally Wrongful Acts, G.A. Res. 56/83 annex, U.N. Doc. A/RES/56/83 (Dec. 12, 2001)

Blaskic Judgement: Prosecutor v. Blaskic, Case No. IT-95-14-A, Appeals Chamber Judgement (Int’l Crim. Trib. For the Former Yugoslavia Jul. 29, 2004).

Canadian Manual: Canada, Office of the Judge Advocate General, Law of Armed Conflict at the Operational and Tactical Levels, B-GJ-005-104/FP-021 (2001)

CCDCOE. (2018a). SCO. [online] Available at: https://ccdcoe.org/sco.html [Accessed 7 Sep. 2018].

Ccdcoe.org. (2018b). [online] Available at: https://ccdcoe.org/cycon/2014/proceedings/d2r1s9_ducheinehaaster.pdf [Accessed 7 Sep. 2018].

Ccdcoe.org. (2018c). [online] Available at: https://ccdcoe.org/sites/default/files/documents/CCDCOE_Tallinn_Manual_On epager_web.pdf [Accessed 7 Sep. 2018].

Ccdcoe.org. (2018d). [online] Available at: https://ccdcoe.org/sites/default/files/multimedia/pdf/CDU_Analysis.pdf [Accessed 7 Sep. 2018].

Ccdcoe.org. (2018e). [online] Available at: https://ccdcoe.org/sites/default/files/documents/UN-150113-CodeOfConduct.pdf [Accessed 7 Sep. 2018].

Corfu Channel Case: Corfu Channel Case (UK v. Alb) 1949, I.C.J, 4 (Apr. 9).

Council of Europe, Council of Europe Convention on Cybercrime, European Treaty Series (ETS), No. 185, 23 November 2001

Delalic Judgement: Prosecutor v. Delalic/Mucic, Case No. IT-96-21-T, Trial Chamber Judgement (Int’l Crim. Trib. For the Former Yugoslavia Nov. 16, 1998)

EPSC. (2018). Building an Effective European Cyber Shield - EPSC - European Commission. [online] Available at: http://ec.europa.eu/epsc/publications/strategic-notes/building-effective- european-cyber-shield_en [Accessed 7 Sep. 2018].

Eur-lex.europa.eu. (2018). EUR-Lex - 32011D0736 - EN - EUR-Lex. [online] Available at: https://eur-lex.europa.eu/legal- content/en/TXT/?uri=CELEX%3A32011D0736 [Accessed 7 Sep. 2018].

Europarl.europa.eu. (2018). [online] Available at: http://www.europarl.europa.eu/meetdocs/2009_2014/documents/sede/dv/sede 251010audnatocyberattacks_/sede251010audnatocyberattacks_en.pdf [Accessed 7 Sep. 2018].

Geneva Convention I: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 75 U.N.T.S. 31.

Geneva Convention II: Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 75 U.N.T.S. 85.

Geneva Convention III: Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 75. U.N.T.S. 135.

Geneva Convention IV: Convention (IV) Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 75 U.N.T.S. 287.

Hague Convention IV: Convention (IV) Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277 Hague Convention V: Convention (V) Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, Oct.18, 1907, 36 Stat. 2310.

Hague Convention XIII: Convention (XIII) Concerning the Rights and Duties of Neutral Powers in Naval War, Oct. 18, 1907, 36 Stat. 2415.

Hague Regulations: Convention (IV) Respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277.

Home.treasury.gov. (2018). Treasury Sanctions Russian Federal Security Service Enablers | U.S. Department of the Treasury. [online] Available at: https://home.treasury.gov/news/press-releases/sm0410 [Accessed 2 Sep. 2018].

100

ICRC Additional Protocols Commentary: International Committee of the Red Cross, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Yves Sandoz et al., eds., 1987).

ICRC Customary IHL Study: International Committee of the Red Cross, Customary International Humanitarian Law, (Jean-Marie Henckaerts and Louise Doswald- Beck eds., 2005)

ICRC Geneva Convention I Commentary: Commentary: Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Jean Pictet ed., 1952)

ICRC Geneva Convention III Commentary: Commentary: Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949 (Jean Pictet ed., 1960)

ICRC Geneva Convention IV Commentary: Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Jean Pictet ed., 1958)

ICRC Interpretative Guidance: International Committee of the Red Cross, Interpretative Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (Nils Melzer ed., 2009)

ICTY Statute: Statute of the International Criminal Tribunal for the Former Yugoslavia, S.C. Res. 827 annex, U.N. Doc. S/RES/827 (May 25, 1993)

Kosovo Advisory Opinion: Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, 2010, I.C.J (July 22).

Law of the Sea Convention: United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 3

Legal.un.org. (2018). Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries. [online] Available at: http://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf [Accessed 11 Sep. 2018].

Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1. C.J. Reports 1996, p. 226

Libicki, M. C. (2009). Cyberdeterrence and cyberwar. Santa Monica: RAND.

Limaj Judgement: Prosecutor v. Limaj, Case No. IT-03-66-T, Trial Chamber Judgement (Int’l Crim. Trib. For the Former Yugoslavia Nov. 30, 2005)

Mepoforum.sk. (2018). Intelligence and Security Committee of Parliament Annual Report 2016-17. [online] Available at: http://mepoforum.sk/wp- content/uploads/2017/12/UK-Intelligence-Security-Committee-2016-2017.pdf [Accessed 11 Sep. 2018].

101

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America). Merits, Judgment. I.C.J. Reports 1986, p. 14.

NIAC Manual: Michael N. Schmitt, Charles H.B. Garraway and Yoran Dinstein, The Manual on the Law of Non-International Armed Conflict with Commentary (2006) Nicaragua Judgement: Military and Paramilitary Activities in and Against Nicaragua (Nicar v. US), 1986 I.C.J. 14 (June 27).

Nuclear Weapons Advisory Opinion: Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226 (July 8).

Oil Platforms Judgement: Oil Platforms (Iran v. US), 2003 I.C.J. 161 (Nov. 6)

Opcw.org. (2018). CONVENTION ON THE PROHIBITION OF THE DEVELOPMENT, PRODUCTION, STOCKPILING AND USE OF CHEMICAL WEAPONS AND ON THEIR DESTRUCTION. [online] Available at: https://www.opcw.org/fileadmin/OPCW/CWC/CWC_en.pdf [Accessed 8 Sep. 2018].

Rome Statute: Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 90.

San Remo Manual: International Institute of Humanitarian Law, San Remo Manual on International Law Applicable to Armed Conflicts at Sea (Louise Doswald-Beck ed., 1995)

St Petersburg Declaration: Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight, Nov. 29/Dec. 11, 1868, 18 Martens Nouveau Recueil (ser. 1) 474.

Tadic, Appeals Chamber Judgement: Prosecutor v. Tadic, Case No. IT-94-1-A, Appeals Chamber Judgement (Intl’l Crim. Trib. For the Former Yugoslavia July 15, 1999)

UK Manual: UK Ministry of Defence, The Joint Service Manual of the Law of Armed Conflict, JSP 383 (2004)

Un.org. (2018). "Letter dated 9 January 2015 from the Permanent Representatives of China, Kazakhstan, Kyrgyzstan, the Russian Federation, Tajikistan and Uzbekistan to the United Nations addressed to the Secretary-General" U.N. Doc. A/69/273 (2015). [online] Available at: http://www.un.org/Docs/journal/asp/ws.asp?m=A/69/723. [Accessed 11 Sep. 2018].

Un.org. (2018). Developments in the field of information and telecommunications in the context of international security – UNODA. [online] Available at: https://www.un.org/disarmament/topics/informationsecurity/ [Accessed 8 Sep. 2018].

102

United Nations, General Assembly. (2015). “Group of governmental experts on development in the field of information and telecommunications in the context of international security” (‘UN Group of Cyber Security Experts’). 70th session, A/70/171, 22 July 2015 (http://www.un.org/ga/search/view_doc.asp?symbol=A/70/174).

US Navy, US Marine Corps and US Coast Guard, (2007). The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5- 121/COMDTPUB P58007A, 2007, para 8.2.

Vienna Convention on Diplomatic Relations: Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 500 U.N.T.S. 95.

White House Cyber Strategy: The White House, International Strategy for Cyberspace: Prosperity, Security, and Openness in a Networked World (2011)

Secondary Sources:

Albright, David, Brannan, Paul, and Walrond, Christina, (2010). Did Stuxnet Take Out 1,000 Centrifuges at the Natanz Enrichment Plant?, Washington D.C.: Institute for Science and International Security (ISIS) Aldrich, G. (2006). New Wars, New Laws? Applying the Laws of War in 21st Century Conflicts. Edited by David Wippman and Matthew Evangelista. Ardsley, NY: Transnational Publishers, 2005. American Journal of International Law, 100(02), pp.495-499.

Armscontrol.org. (2018). Timeline of Syrian Chemical Weapons Activity, 2012-2018 | Arms Control Association. [online] Available at: https://www.armscontrol.org/factsheets/Timeline-of-Syrian-Chemical-Weapons- Activity [Accessed 11 Sep. 2018].

Arquilla, J. and Ronfeldt, D. (1993). Cyberwar is coming!. Comparative Strategy, 12(2), pp.141-165.

Barnes, E. (2018). Stuxnet Worm Still Out of Control at Iran's Nuclear Sites, Experts Say. [online] Fox News. Available at: http://www.foxnews.com/tech/2010/12/09/despite-iranian-claims-stuxnet- worm-causing-nuclear-havoc.html [Accessed 11 Sep. 2018].

Barnsby, R. E., & Reeves, S. R. (2017). Give them an inch, they'll take a terabyte: How states may interpret tallinn manual 2.0's international human rights law chapter. Texas Law Review, 95(7), 1515-1530. Retrieved from https://search.proquest.com/docview/1968928463?accountid=13042

103

Baruah, Darshana M. (2013). “Cyberspace governance: the American approach”, October 4. https://www.indiawrites.org/cyberspace-governance-the-american- approach/.

BBC News. (2018). Stuxnet 'hit' Iran nuclear plans. [online] Available at: https://www.bbc.co.uk/news/technology-11809827 [Accessed 11 Sep. 2018].

Bertram, S. (2017). ‘Close enough’ – The link between the Syrian Electronic Army and the Bashar al-Assad regime, and implications for the future development of nation-state cyber counter-insurgency strategies. Journal of Terrorism Research, 8(1), p.2.

Bothe et al.: Michael Bothe et al., New Rules for Victims of Armed Conflicts: Commentary on the Two 1997 Protocols Additional to the Geneva Conventions of 1949 (1982)

Buchanan, B. (2016). The life cycles of cyber threats. Survival, 58(1), 39–58.

Bureau, D. (2018). Cyberspace as Global Commons: The Challenges. [online] DATAQUEST. Available at: https://www.dqindia.com/cyberspace-global- commons-the-challenges-1/ [Accessed 7 Sep. 2018].

Bureau, D. (2018). Cyberspace as Global Commons: The Challenges. [online] DATAQUEST. Available at: https://www.dqindia.com/cyberspace-global- commons-the-challenges-1/ [Accessed 11 Sep. 2018].

Burgess, M. (2018). We need a global cyberwar treaty, says the former head of GCHQ. [online] Wired.co.uk. Available at: https://www.wired.co.uk/article/gchq- uk-robert-hannigan-cyberwar-definition [Accessed 7 Sep. 2018].

Carr, Jeffrey. (2011). Inside cyber warfare. Mapping the cyber underworld, 2nd ed. (O'Reilly Media).

Cirenza, Patrick. (2016). “The flawed analogy between nuclear and cyber deterrence”. Bulletin of Atomic Scientists, 22 February (http://thebulletin.org/flawed-analogy- between-nuclear-and-cyber-deterrence9179).

Clarke, R. A., & Knake, R. K. (2010). Cyber war: the next threat to national security and what to do about it. New York: Harper Collins.

Cohen, T. (2018). Senate panel backs Syria attack; Obama defends chemical arms red line - CNNPolitics. [online] CNN. Available at: http://edition.cnn.com/2013/09/04/politics/us-syria/?hpt=hp_t2 [Accessed 7 Sep. 2018].

Coleman, K.T. (2018). Coleman: The Cyber Arms Race Has Begun. [online] CSO Online. Available at: https://www.csoonline.com/article/2122353/critical- infrastructure/coleman--the-cyber-arms-race-has-begun.html [Accessed 8 Sep. 2018]. Collier, P. (2003). The Market for Civil War. Foreign Policy, (136).

104

ComputerWeekly.com. (2018). Nato sets up Cyber Defence Management Authority in Brussels. [online] Available at: https://www.computerweekly.com/news/2240085580/Nato-sets-up-Cyber- Defence-Management-Authority-in-Brussels [Accessed 7 Sep. 2018].

Cornish, P., Livingstone, D., Clemente, D. and Yorke, C. (2018). [online] Chathamhouse.org. Available at: http://www.chathamhouse.org/sites/default/files/public/Research/International %20Security/r1110_cyberwarfare.pdf [Accessed 7 Sep. 2018].

Council on Foreign Relations. (2018). Connect the Dots on State-Sponsored Cyber Incidents. [online] Available at: https://www.cfr.org/interactive/cyber- operations#CyberOperations [Accessed 2 Sep. 2018].

Council on Foreign Relations. (2018). How Ukraine’s Government Has Struggled to Adapt to Russia’s Digital Onslaught. [online] Available at: https://www.cfr.org/blog/how-ukraines-government-has-struggled-adapt- russias-digital-onslaught [Accessed 7 Sep. 2018].

Csis.org. (2018). State Practice and Precedent in Cybersecurity Negotiations. [online] Available at: https://www.csis.org/analysis/state-practice-and- precedent-cybersecurity-negotiations [Accessed 7 Sep. 2018].

Css.ethz.ch. (2018). [online] Available at: http://www.css.ethz.ch/en/services/digital- library/articles/article.html/44a09690-c5c1-4179-b121-6fdf525e89d4/pdf [Accessed 7 Sep. 2018].

Danchev, D. (2018). Coordinated Russia vs Georgia cyber attack in progress | ZDNet. [online] ZDNet. Available at: https://www.zdnet.com/article/coordinated- russia-vs-georgia-cyber-attack-in-progress/ [Accessed 7 Sep. 2018].

Davis, J., Davis, J., Finley, K., Barber, G., Matsakis, L., Hempel, J., Karabell, Z. and Burrows, P. (2018). Hackers Take Down the Most Wired Country in Europe. [online] WIRED. Available at: https://www.wired.com/2007/08/ff-estonia/ [Accessed 11 Sep. 2018].

Delerue, F. (2014). Civilian Direct Participation in Cyber Hostilities. IDP Revista de Internet Derecho y Política, (19), p.3.

DeLuca, Christopher. (2013), ‘The Need for International Laws of War to Include Cyber Attacks Involving State and Non-State Actors’, Pace University School of Law: Pace International Law Review Online Companion, Vol. 3, No. 9, Winter 2013

Dewar, R. S. (2014). ‘The “triptych of cyber security”: a classification of active cyber defence.’ 6th Intl conference on cyber conflict. Tallinn: NATO CCD COE Publications.

105

Dig.watch. (2018). Shanghai Cooperation Organisation | GIP Digital Watch. [online] Available at: https://dig.watch/actors/shanghai-cooperation- organisation [Accessed 7 Sep. 2018].

Dinstein, Yoram, (2012). ‘The Principle of Distinction and Cyber War in International Armed Conflicts’, Journal of Conflict and Security Law, 17(2), pp. 216-277.

Dinstein, Yoram, (2016). The Conduct of Hostilities under the Law of International Armed Conflict, 3rd ed., Cambridge: Cambridge University Press.

Dörmann, Knut, (2005) ‘Applicability of the Additional Protocol to Computer Network Attack’, in Byström, Karin (ed.), (2005). Proceedings on the International Expert Conference on Computer Network Attacks and the Applicability of International Humanitarian Law, Stockholm, 17-19 November 2011, p. 139, Swedish National Defence College, 2005, reprinted at .

Droege, C. (2012). Get off my cloud: cyber warfare, international humanitarian law, and the protection of civilians. International Review of the Red Cross, 94(886), pp.533-578. Droege, C. and Tougas, M. (2013). The Protection of the Natural Environment in Armed Conflict – Existing Rules and Need for Further Legal Protection. Nordic Journal of International Law, 82(1), pp.21-52.

Ducheine, P. and van Haaster, J. (2014). Fighting Power, Targeting and Cyber Operations. SSRN Electronic Journal.

Eilstrup-Sangiovanni, M. (2009). “Varieties of Cooperation: Government Networks in International Security.” In Networked Politics: Agency, Power, and Governance, edited by Miles Kahler (Ithaca: Cornell University Press, 2009), chapter 10, pp. 194–227.

Eilstrup-Sangiovanni, M. (2014). “Network theory and security governance.” In Handbook of Governance and Security, ed. James Sperling (Edward Elgar, Oct. 2014), chapter 3, pp. 41–62.

Eilstrup-Sangiovanni, M. (2017). Why the World Needs an International Cyberwar Convention. Philosophy & Technology, 31(3), pp.379-407.

Fak.dk. (2018). [online] Available at: http://www.fak.dk/publikationer/Documents/Legal%20issues%20in%20cyber%2 0targeting.pdf [Accessed 7 Sep. 2018].

FBI News (2016), Syrian Cyber Hackers Charged Two From ‘Syrian Electronic Army’ Added to Cyber’s Most Wanted, available online as of 2 August 2016 from: https://www.fbi.gov/news/stories/two-from-syrian-electronic-army-added-to-cybers- most-wanted

Fearon, J. (1997). Signaling Foreign Policy Interests. Journal of Conflict Resolution, 41(1), pp.68-90.

106

Finnemore, Martha. (2011). “Cultivating international cyber norms.” In America’s Cyber Future: Security and Prosperity in the Information Age, eds. Kristin Lord and Travis Sharp, vol. II, pp. 89–100 (http://citizenlab.org/cybernorms2011/cultivating.pdf).

Fleck, D. (2013) Searching for International Rules Applicable to Cyber Warfare – A Critical First Assessment of the New Tallinn Manual - Journal of Conflict & Security Law, Vol. 18 No. 2, Oxford University Press, 331-332

Fok, D., Polgar, J., Shaw, L., Luke, R. and Mandich, A. (2009). Cyberspace, real place: Thoughts on doing in contemporary occupations. Journal of Occupational Science, 16(1), pp.38-43.

Fox-Brewster, T. (2018). 'State sponsored' Russian hacker group linked to cyber attacks on neighbours. [online] the Guardian. Available at: https://www.theguardian.com/technology/2014/oct/29/russian-hacker-group- cyber-attacks-apt28 [Accessed 7 Sep. 2018].

Francis Elliott, M. (2018). May vows revenge on Russia over Salisbury novichok poisonings. [online] Thetimes.co.uk. Available at: https://www.thetimes.co.uk/article/may-vows-revenge-on-russia-over-salisbury- novichok-poisonings-93lk85sjr [Accessed 11 Sep. 2018].

Glaser, C. L., & Kaufmann, C. (1998). What is the offense-defense balance and can we measure it? International Security, 22(4), 44–82.

Goldsmith J. (2011). “Cybersecurity treaties: a skeptical view” Hoover Institution (http://media.hoover.org/sites/default/files/documents/FutureChallenges_Golds mith.pdf

GOV.UK. (2018). Foreign Office Minister condemns Russia for NotPetya attacks. [online] Available at: https://www.gov.uk/government/news/foreign-office- minister-condemns-russia-for-notpetya-attacks [Accessed 7 Sep. 2018].

Greenberg, A., Newman, L., Greenberg, A., Nield, D., Dreyfuss, E., Lapowsky, I. and Newman, L. (2018). How An Entire Nation Became Russia's Test Lab for Cyberwar. [online] WIRED. Available at: https://www.wired.com/story/russian- hackers-attack-ukraine/ [Accessed 11 Sep. 2018].

Halliday, J. (2010). Stuxnet worm is the 'work of a national government agency'. [online] the Guardian. Available at: https://www.theguardian.com/technology/2010/sep/24/stuxnet-worm-national- agency [Accessed 13 Sep. 2018].

Handler, Stephenie Gosnell (2012). New Cyber Face of Battle: Developing a Legal Approach to Accommodate Emerging Trends in Warfare, 48 Stan. J. Int'l L. 209 (2012).

107

Harrison Dinniss, H. (2015). The Nature of Objects: Targeting Networks and the Challenge of Defining Cyber Military Objectives. Israel Law Review, 48(01), pp.39-54.

Harrison-Dinniss, Heather, (2012). Cyber Warfare and the Laws of War, Cambridge: Cambridge University Press.

Hathaway, O. A., Crootof, R., Levitz, P., Nix, H., Nowlan, A., Perdue, W., Spiegel, J. (2012), The law of Cyber-Attack – California Law Review, Vol. 100, No. 817-837.

Hern, A. (2018). Facebook among tech firms to sign 'digital Geneva convention'. [online] the Guardian. Available at: https://www.theguardian.com/technology/2018/apr/18/tech-firms-including- facebook-sign-up-to-digital-geneva-convention [Accessed 7 Sep. 2018].

Hollis, Duncan B. (2007), Why States Need an International Law for Information Operations, Lewis and Clark Law Review, Vol. 11:4, Art. 7, 1023-1061

Ifft, Edward. (2005). “Witness for the prosecution: international organizations and arms control verification”. Arms Control Association, Nov.1. https://www.armscontrol.org/act/2005_11/NOV-Ifft.

Indian Defence Review. (2018). Securing Cyberspace: A Global Commons. [online] Available at: http://www.indiandefencereview.com/news/securing-cyberspace-a- global-commons/ [Accessed 11 Sep. 2018].

Jervis, R. (1978). Cooperation under the security dilemma. World Politics, 30(2), 167–214.

Joyner, Christopher C, and Lotrionte, Catherine (2001). Information Warfare as International Coercion: Elements of a Legal Framework, EJIL (2001), Vol. 12, No. 5, 825-865

Kaitseliit.ee. (2018). Estonian Defence League. [online] Available at: http://www.kaitseliit.ee/en/cyber-unit [Accessed 7 Sep. 2018].

Kaldor, M. (2013). In Defence of New Wars. Stability: International Journal of Security and Development, 2(1), p.4.

Kasher, A. (2007). The Principle of Distinction. Journal of Military Ethics, 6(2), pp.152-167.

Kirk, J. (2008). [online] Georgiaupdate.gov.ge. Available at: http://georgiaupdate.gov.ge/doc/10006922/CYBERWAR-%20fd_2_.pdf [Accessed 13 Sep. 2018].

Kramer et al., eds. (2009). Cyberpower and National Security, Dulles: National Defense University Press and Potomac Books, Inc..

Kramer, J. (2018). U.S. and Russia Differ on a Treaty for Cyberspace. [online] Nytimes.com. Available at:

108

https://www.nytimes.com/2009/06/28/world/28cyber.html [Accessed 7 Sep. 2018].

Lawson, Sean. (2011). “Richard Clarke responds to administration cybersecurity proposals” Forbes, June 3.

Limnéll, Jarno. 2013. “Offensive cyber capabilities are needed because of deterrence” In the fog of cyber defence, eds. Jari Rantapelkonen and Mirva Salminen (Helsinki: Juves Print), 200–208.

Lindsay, J. R. (2015). Tipping the scales: the attribution problem and the feasibility of deterrence against cyberattack. Journal of Cybersecurity, 1(1), 53–67. Lipson, C (1991). Why are some international agreements informal? International Organization, 45(4), 495–538.

Loader, Brian D (2004). The Governance of Cyberspace: Politics, Technology and Global Restructuring. Routledge

Lucas, G. (2017). Ethics of cyber warfare. The quest for responsible security in the age of digital warfare. Oxford: Oxford University Press.

Lucas, George R. Jr. (2016) “Emerging norms for cyberwarfare”. In Binary Bullets. The Ethics of Cyberwarfare, eds, Fritz Allhoff, Adam Henschke and Bradley J. Strawser. Oxford University Press, pp. 13–33.

Mann, S. (2018). [online] Csis.org. Available at: https://www.csis.org/analysis/fact- sheet-section-215-usa-patriot-act [Accessed 14 Sep. 2018].

Markoff, J. (2018). Before the Gunfire, Cyberattacks. [online] Nytimes.com. Available at: https://www.nytimes.com/2008/08/13/technology/13cyber.html [Accessed 11 Sep. 2018].

Mazanec, B. (2016). Constraining Norms for Cyber Warfare Are Unlikely. Georgetown Journal of International Affairs, 17(3), pp.100-109.

McGavran, Wolfgang (2009). Intended Consequences: Regulating Cyber Attacks. 12 Tul. J. Tech. & Intell. Prop. 259 (2009)

McKune, S. (2018). Analysis of International Code of Conduct. [online] The Citizen Lab. Available at: https://citizenlab.ca/2015/09/international-code-of- conduct/#1 [Accessed 7 Sep. 2018].

Melzer, N. (2018). The Principle of Distinction under International Humanitarian Law. [online] Oxfordscholarship.com. Available at: http://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780199533169.00 1.0001/acprof-9780199533169-chapter-11#ref_acprof-9780199533169-note-1530 [Accessed 7 Sep. 2018].

Meyer, Paul. (2016). “Outer space and cyberspace: a tale of two security realms”. In International Cyber Norms: Legal Policy & Industry Perspectives, eds. Anna-

109

Maria Osula and Henry Rõigas (NATO CCD COE Publications), chapter 8, pp. 155–169.

Motherboard (2013), Is This the Leader of the Syrian Electronic Army?, available online as of 2 August 2016 from: http://motherboard.vice.com/blog/is-this-19-year-old-the- leader-of-the-syrian-electronic-army

Motherboard. (2018). Meet 'Intrusion Truth,' the Mysterious Group Doxing Chinese Intel Hackers. [online] Available at: https://motherboard.vice.com/en_us/article/wjka84/intrusion-truth-group- doxing-hackers-chinese-intelligence [Accessed 7 Sep. 2018].

Ncsc.gov.uk. (2018). New Cyber Attack categorisation system to improve UK response to incidents - NCSC Site. [online] Available at: https://www.ncsc.gov.uk/news/new-cyber-attack-categorisation-system- improve-uk-response-incidents [Accessed 7 Sep. 2018].

Ncsc.gov.uk. (2018). Russian military ‘almost certainly’ responsible for destructive 2017 cyber attack - NCSC Site. [online] Available at: https://www.ncsc.gov.uk/news/russian-military-almost-certainly-responsible- destructive-2017-cyber-attack [Accessed 7 Sep. 2018].

Noman, E, The Emergence of Open and Organized Pro-Government Cyber Attacks in the Middle East: the Case of the Syrian Electronic Army, OpenNet Initiative, available as of 2 August 2016:

Nsarchive2.gwu.edu. (2018). Capability of the People’s Republic of China to Conduct Cyber Warfare and Computer Network Exploitation. [online] Available at: https://nsarchive2.gwu.edu/NSAEBB/NSAEBB424/docs/Cyber-030.pdf [Accessed 11 Sep. 2018]. Nye, Joseph S (2010). ‘Cyber Power’, Belfer Center for Science and International Affairs, Harvard Kennedy School, May 2010 http://belfercenter.ksg.harvard.edu/publication/20162/cyber_power.html.

Paletta, Damian, Danny Yadron and Jennifer Valentino-Devries. (2015). “Cyberwar ignites a new arms race”. Wall Street Journal.

Perlroth, N. and Krauss, C. (2018). A Cyberattack in Saudi Arabia Had a Deadly Goal. Experts Fear Another Try.. [online] Nytimes.com. Available at: https://www.nytimes.com/2018/03/15/technology/saudi-arabia-hacks- cyberattacks.html [Accessed 11 Sep. 2018].

Query.prod.cms.rt.microsoft.com. (2018). [online] Available at: https://query.prod.cms.rt.microsoft.com/cms/api/am/binary/RW67QH [Accessed 7 Sep. 2018].

Raboin, B. (2011). Corresponding Evolution: International Law and the Emergence of Cyber Warfare. [online] Available at: https://digitalcommons.pepperdine.edu/cgi/viewcontent.cgi?article=1013&conte xt=naalj [Accessed 13 Sep. 2018].

110

Rid, T. (2012). Cyber War Will Not Take Place. Journal of Strategic Studies, 35(1), pp.5-32.

Robinson, M., Jones, K. and Janicke, H. (2015). Cyber warfare: Issues and challenges. Computers & Security, 49, pp.70-94.

Roscini, Marco, (2014). Cyber Operations and the Use of Force in International Law, Oxford: Oxford University Press.

Rousseau, J. (1762). The Social contract. London: J.M. Dent & Sons, Ltd.

Ruiz, M. (2018). Is Estonia’s Approach to Cyber Defense Feasible in the United States? - War on the Rocks. [online] War on the Rocks. Available at: https://warontherocks.com/2018/01/estonias-approach-cyber-defense-feasible- united-states/ [Accessed 7 Sep. 2018].

Saltzman, I. (2013). Cyber posturing and the offense-defense balance. Contemporary Security Policy, 34(1), 40–63.

Sanger, David E. (2015). “U.S. and China seek arms deal for cyberspace”, September 19, 2015. (Washington D.C.).

Schaap, A. (2009) Cyber Warfare Operations: Development and Use under International Law -Air Force Law Review, Vol. 64, No. 1, 158.

Schelling, T. C. (1994) The strategy of conflict. Cambridge, MA: Harvard University Press.

Schmitt (2015). Harvard Law School Lecture: Michael N. Schmitt: PILAC Lecture on Cyber Operations and IHL: Fault Lines and Vectors. [online] YouTube. Available at: https://www.youtube.com/watch?v=ZWwrVAMSOT4&t=535s [Accessed 13 Sep. 2018].

Schmitt, M. (2002). Wired warfare: Computer network attack and jus in bello. Revue Internationale de la Croix-Rouge/International Review of the Red Cross, 84(846)

Schmitt, M. and Vihul, L. (2017). Tallinn manual 2.0 on the international law applicable to cyber operations. Cambridge: Cambridge University Press.

Schmitt, M. N., & Vihul, L. (2014a). Proxy wars in cyberspace: the evolving international law of attribution. Fletcher Security Review, 1(2).

Schmitt, Michael N. and Liis Vihul. (2014b). “The nature of international law cyber norms, Tallinn Paper No. 5.

Schmitt, Michael N. and Liis Vihul: (2016) The emergence of international legal norms for cyberconflict. In Fritz Allhoff, Adam Henschke and Bradley J. Strawser (eds.), Binary Bullets. The Ethics of Cyberwarfare. Oxford University Press, 2016. Schmitt, Michael N., (2014). ‘Rewired warfare: Rethinking the law of cyber attack’, International Law Review of the Red Cross (IRRC) (2014), Vol. 96, No. 893.

111

Scmagazineuk.com. (2018). Canada and Nato attempt to define threshold for cyber- attack response. [online] Available at: https://www.scmagazineuk.com/canada- nato-attempt-define-threshold-cyber-attack-response/article/1474975 [Accessed 7 Sep. 2018].

SearchSecurity. (2018). What is IP spoofing (IP address forgery or a host file hijack)? - Definition from WhatIs.com. [online] Available at: https://searchsecurity.techtarget.com/definition/IP-spoofing [Accessed 13 Sep. 2018].

Sharp, W. (1999). Balancing Our Civil Liberties with Our National Security Interests in Cyberspace. Tex. Rev. L. & Pol. 69 (1999-2000).

Shaw, Malcolm Nathan, (2014). International Law, 7th ed., Cambridge: Cambridge University Press, 2014.

Simmons BA, Hopkins DJ (2005). The Constraining Power of International Treaties: Theory and Methods. Amer Polit Sci Rev 99:623-31.

Simmons, N. (2014) A Brave New World: Applying International Law of War to CyberAttacks – Journal of Law & Cyber warfare, Vol. 4, 42-43.

Singer, P. W., & Friedman, A. (2014). Cybersecurity and cyberwar: what everyone needs to know? Oxford: Oxford University Press.

Sklerov, M. (2009). Solving the dilemma of state responses to cyberattacks: A justification for the use of active for the use of active defences against states who neglect their duty to prevent. (Master’s Thesis, The Judge Advocate General’s School, USA).

Smallwarsjournal.com. (2018). The Impact of Cyber Capabilities in the Syrian Civil War | Small Wars Journal. [online] Available at: http://smallwarsjournal.com/jrnl/art/the-impact-of-cyber-capabilities-in-the- syrian-civil-war [Accessed 7 Sep. 2018].

Sonicwall.com. (2018). How to enable Denial of Service attack protection in the Email Security? | Knowledge Base | SonicWall. [online] Available at: https://www.sonicwall.com/en-us/support/knowledge-base/170504802623758 [Accessed 13 Sep. 2018].

Ssi.armywarcollege.edu. (2018). [online] Available at: http://ssi.armywarcollege.edu/pubs/parameters/Articles/08winter/korns.pdf [Accessed 7 Sep. 2018].

Stang, G. (2018). [online] Iss.europa.eu. Available at: https://www.iss.europa.eu/sites/default/files/EUISSFiles/Brief_17.pdf [Accessed 13 Sep. 2018].

Stavridis, Nossel, Walt and Cook (2018). The United States Is Not Ready for a Cyber-Pearl Harbor. [online] Foreign Policy. Available at:

112

https://foreignpolicy.com/2017/05/15/the-united-states-is-not-ready-for-cyber- pearl-harbor-ransomware-hackers-wannacry/ [Accessed 11 Sep. 2018].

Stone, J. (2013). Cyber WarWillTake Place!. Journal of Strategic Studies, 36(1), pp.101-108. Tabansky, L. (2011). Basic Concepts in Cyber Warfare. Military and Strategic Affairs, Vo.3. No. 1, May 2011.

Talkingtech.cliffordchance.com. (2018). CC Tech | Cyber security and the internet in Russia. [online] Available at: https://talkingtech.cliffordchance.com/en/cybersecurity/cyber-security-and-the- internet-in-russia.html [Accessed 7 Sep. 2018].

Tallinn Manual on the International Law Applicable to Cyber Warfare. Schmitt ed., (2013) https://ccdcoe.org/tallinn-manual.html.

Tech-faq.com. (2018). Logic Bomb. [online] Available at: http://www.tech- faq.com/logic-bomb.html [Accessed 13 Sep. 2018]. The Conversation. (2018). The Syrian Electronic Army is rewriting the rules of war. [online] Available at: https://theconversation.com/the-syrian-electronic-army-is- rewriting-the-rules-of-war-17618 [Accessed 7 Sep. 2018].

Theregister.co.uk. (2018). Water treatment plant hacked, chemical mix changed for tap supplies. [online] Available at: https://www.theregister.co.uk/2016/03/24/water_utility_hacked/ [Accessed 7 Sep. 2018].

Tsagourias, Nicholas, and Buchan, Russell (ed.), (2015). Research Handbook on International Law and Cyberspace, Cheltenham: Edward Elgar Publishing.

U.K. (2018). Israel admits bombing suspected Syrian nuclear reactor in 2007,.... [online] Available at: https://uk.reuters.com/article/uk-israel-syria- nuclear/israel-admits-bombing-suspected-syrian-nuclear-reactor-in-2007-warns- iran-idUKKBN1GX09Q [Accessed 7 Sep. 2018].

U.S. (2018). Ukraine points finger at Russian security services in recent cyber.... [online] Available at: https://www.reuters.com/article/us-cyber-attack-ukraine- idUSKBN19M39P [Accessed 2 Sep. 2018].

Usna.edu. (2018). [online] Available at: https://www.usna.edu/Ethics/_files/documents/Just%20War%20and%20Cyber %20War%20GR%20Lucas.pdf [Accessed 7 Sep. 2018].

Vanca, David. (2013). “Richard A. Clarke and Robert K. Knake’s “Cyber war: the nexthreat to national security and what to do about it”. Literature Reviews, Georgetown Security Studies Review 1(1).

Waxman, M. (2011). Cyber-Attacks and the Use of Force: Back to the Future of Article 2(4). SSRN Electronic Journal.

113

Wei, Y. (2018). China-Russia Cybersecurity Cooperation: Working Towards Cyber- Sovereignty - The Henry M. Jackson School of International Studies. [online] The Henry M. Jackson School of International Studies. Available at: https://jsis.washington.edu/news/china-russia-cybersecurity-cooperation- working-towards-cyber-sovereignty/ [Accessed 7 Sep. 2018].

Wu, T. and Goldsmith, J. (2006). Who Controls the Internet? Illusions of a Borderless World. Oxford University Press.

Www2.fireeye.com. (2018). [online] Available at: https://www2.fireeye.com/rs/848- DID-242/images/APT28-Center-of-Storm- 2017.pdf?mkt_tok=eyJpIjoiWmpnd1pESmhaRGc1WVRrNSIsInQiOiIzNk52N1hc L0RXNXVFWlA4OGNJU0dITGZYSlJRbCtEczFMSkNcL3JJbHo4Z1N5aUVCM2d STGdxMldhcFhGNFRYdk9wUWtlYWlYem5nT1dKMGNZWVQzY1wvekN2QjRQT DlnWVZkN1Vkd3FvUWJFbGdyOWV2eGJQUTV6Y2dzOGQrVzIrSCJ9 [Accessed 7 Sep. 2018].

Zetter, K., Zetter, K., Newman, L., Greenberg, A., Nield, D., Dreyfuss, E., Lapowsky, I. and Newman, L. (2018). Logic Bomb Set Off South Korea Cyberattack. [online] WIRED. Available at: https://www.wired.com/2013/03/logic-bomb-south-korea- attack/ [Accessed 11 Sep. 2018].

Zetter, Kim. (2015). “Why an arms control pact has security experts up in arms”. Wired. 24th July. (https://www.wired.com/2015/06/arms-control-pact-security- experts-arms/).

Reassessing Success and Failure of Social Movements: the 2014 Hong Kong Umbrella Movement

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Florence Woodrow

Abstract: Much of the social movement literature has judged success and failure based on a movement’s stated goals, analysing the movement up until its decline. This aspect of social movements may negate the wide-ranging impacts that occur after its decline. The case study of the 2014 Hong Kong Umbrella Movement shows that mainstream definitions of success and failure are reductionist in analysing the full extent of the movement’s impacts. The decline of the Umbrella Movement can be explained by unfavourable and problematic internal and external factors, which provide useful insight into the unique context and environment of the movement. Analysis of the post-Umbrella period in Hong Kong demonstrates that the Umbrella Movement has affected and continues to affect Hong Kong’s political, cultural and social domains. Its impacts have been manifest but largely ignored, because the movement was so readily labelled a ‘failure’ in 2014. The Umbrella Movement’s outcomes cannot fit into traditional concepts of binary terms like success and failure. The impacts have been both positive and negative and need to be seen in the context of Hong Kong’s broader pro-democracy movement.

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Introduction

Scope, Objectives and Relevance The Hong Kong ‘Umbrella Movement13’ marked one of the most significant social and political events in Hong Kong’s recent history. The Movement, composed of a diverse range of groups, mainly student-led, but with no coherent leadership or organizational structure, emerged from the 2014 democracy protest: Occupy Central with Love and Peace. The catalyst for the protest was the 31 August 2014 decision by the Standing Committee of the National People’s Congress (NPSCS, 2014) to set criteria for the selection of candidates for the 2017 election of Hong Kong’s Chief Executive, the head of the Hong Kong Government. Pro-democracy groups denounced this decision as a violation of the principles of a free and fair election. The Movement mobilized tens of thousands of participants, many of them students from schools and universities, and they occupied strategic areas of Hong Kong, disrupting traffic and business for 79 days. It also generated debate about and support for electoral reform, and helped dismiss the myth that Hong Kong is a politically apathetic and egotistical society; but it ultimately did not achieve its goal of ‘genuine democracy’, in line with international norms, as a means to elect the city’s Chief Executive. Some academics and other commentators have labelled the Movement a failure. However, four years on, the effects are firmly etched as a milestone in Hong Kong’s civic rights history; it has fostered political awareness among Hong Kong’s younger generation, but it has also resulted in a backlash through tightening of control on political freedoms. This marks the focus of this dissertation: taking into account post-Umbrella developments, to what extent can the Umbrella Movement be labelled a failure? Analysis of social-political movements has tended to judge success or failure purely based on political outcomes. Whilst this is a legitimate way to measure one area of success or failure, it fails to account for the full range of outcomes and consequences of a movement, particularly socially and culturally. This dissertation aims to re- analyse the outcomes of the Movement, by revisiting social movement literature on success and failure, and by extending the arena of outcomes to include social and cultural domains, rather than merely political ones. The effects of the Movement on Hong Kong’s society and culture have been manifest and are worthy of study. Ultimately, owing to the contentious nature of binary terms, such as success and failure, the Movement, like other social movements, should not be considered in these terms. Instead, analysing the partial successes and failures in between these two poles holds far more explanatory power in understanding the full range of outcomes. Context This dissertation does not address how and why the Umbrella Movement materialized, but rather the reasons for its decline and its resulting outcomes. For information on the genesis of the Hong Kong democracy movement, including the Umbrella Movement, I refer readers to the academic publications by Chiu and Lui,

13 The ‘Umbrella Movement’ is also known as the ‘Umbrella Revolution’. I have chosen to use the term ‘Umbrella Movement’ on the basis that it was part of an ongoing, largely peaceful pro-democracy movement, whereas ‘revolution’ might be defined as a sudden and violent incident intended to destabilize the government and bring about a radical change to local society.

(2000); Lee and Chan,(2010); Cai, (2017, p.155); Lo, (2017); and Lam and Cooper, (2018), and to the more ‘popular’ publications by Ng, (2016) and Bland (2017). Notwithstanding, it is important to point out that student movements in Hong Kong emerged in the 1960’s and, since then, they have confronted a wide range of issues: Hong Kong’s political future, national identity, social inequality, corruption, and the undemocratic nature of both colonial and post-colonial rule. By the 1980’s, the role of student activists was overshadowed by a proliferation of pressure groups and, for the first time in Hong Kong, professional politicians. However, they re-emerged again as a result of the 1989 June 4 Tiananmen Square Incident. In addition, lest it be misunderstood, whilst the United Kingdom tried to develop a system of representative democracy following the 1984 Sino-British Joint Declaration and in spite of the efforts of the last Governor, Chris Patten, Hong Kong has never had a fully democratic system of government. It has been and continues to be an executive-led, consultative democracy under the ‘One Country, Two Systems’ mode of operation. The root of the post-1997 pro-democracy protests is that, under Article 2 of the Basic Law (Hong Kong’s constitution, (China, 1997)), Hong Kong has the right to “exercise a high degree of autonomy and enjoy executive, legislative and independent judicial power” and, whilst there are provisions in the Basic Law for the appointment of the Chief Executive and members of the Legislative Council by “universal suffrage” (Articles 45 and 68 refer), Beijing’s interpretation of universal suffrage circumscribes Hong Kong’s right to a high degree of autonomy. Structure of dissertation Aside from this Introduction and the Conclusions, this dissertation is divided into three chapters, namely: Chapter 1 – Definitions and Concepts of Success and Failure; Chapter 2 – The Decline of the Umbrella Movement; and Chapter 3 – The Broader Impacts of the Umbrella Movement. Chapter 1 presents a review of the literature on social movement outcomes. To date, the literature has concentrated on the emergence and mobilization of social movements, but, in comparison, the outcomes of social movements have been somewhat neglected. In analysing the outcomes, I have examined what the literature deems as ‘success’ and ‘failure’ in social movements. Related to this, an assessment is made of the causal factors identified in the literature that affect the outcomes of social movements. These factors can be divided into internal and external factors; the focus placed in this chapter is on a movement’s organization, as well as the political environment. Whether internal or external factors have a greater effect on a movement’s success or failure is not the target of my research; rather, I argue that all aspects are explanatory and overlap more than the current literature posits. A range of factors is presented as a framework, to gain a deeper analysis into the Umbrella Movement and its decline. Re-examining concepts of success and failure, as well as moving the focus of outcomes away from political outcomes to include social and cultural ones, challenges the common assumption that the Movement was a failure. Chapter 2 addresses why the Movement declined and essentially ended as an entity in itself, when the street occupation areas were cleared on 15 December 2014. In presenting this assessment, the framework of internal and external causal factors established in the first chapter is used as the basis to gain greater insight into and to demonstrate the links between the factors in explaining the movement’s demise. Lack of central leadership, the rise of factions, a decline in the public’s tolerance of

the disruption caused by the protests, and the wider political environment, are particularly explanatory in this regard. The Movement’s eventual demise may not necessarily equate to failure, contrary to what has been suggested. To support this argument, the third chapter analyses the outcomes of the Umbrella Movement – its successes and its failures – up until the present day. I will demonstrate that only judging a movement’s success or failure based on its decline fails to take account of hidden outcomes which take longer to materialize. Once again, I rely on the theoretical framework for the different arenas for social movement outcome – political, social and cultural – to gain a full understanding of the range of outcomes arising from the movement. The chapter examines the impact of the Umbrella Movement on the 2016 local elections in Hong Kong, the rise of localism and independence movements, as well as its social and cultural impact in terms of collective identity and the shift in public opinion. As such, the Umbrella Movement cannot be seen as an isolated event. The chapter concludes by addressing how the post-Umbrella pro-democracy movement has adapted, and how the legacy of the Umbrella Movement will continue to shape Hong Kong’s social and political agenda. The evaluation of the success and failure of the Umbrella Movement of this study is set out in the Conclusions. I also make a brief comparison with the success and failure of other similar social-political movements. With respect to the Umbrella Movement, I do not refute that it suffered setbacks; it did not achieve its objective of genuine democracy, and some of the post-movement successes have been offset by self-inflicted wounds. Nevertheless, it is my contention that the full range of a social movement’s effects on society is not necessarily apparent after merely one period in its development has come to an end. I also reason that an analysis which focuses only on political outcomes is limited and ignores equally important social and cultural outcomes. Arguably, it is through these ignored outcomes that the Umbrella Movement may have had its greatest effect on Hong Kong’s civic society. Further, as social movements are often continuous – linked by people’s resolve to overcome social or political injustice – it is perhaps too early to assess the full effects of the Umbrella Movement. When viewed in this context, the Umbrella Movement was simply one part of the long-established pro-democracy movement in Hong Kong, but one that undoubtedly will play a significant role in shaping its future.

Chapter 1: Definitions and Concepts of Success and Failure

1.1 Introduction

Academic research and literature on social movements has focused heavily on their emergence, mobilization and development. Whilst these aspects warrant attention, they neglect the decline and outcomes of social movements. As social movements are mobilized based on perceived injustices, they seek to effect change. It is somewhat ironic, therefore, that the outcomes, and how social movements effect or fail to effect change, remain understudied (Amenta and Young, 1999, p.40). Moreover, Burstein et al, (1995, p.276) and Kolb (2007, p.7) state that, although interest in social movements has grown and the literature expanded, the study of social movement outcomes has not grown correspondingly, resulting in outcomes being undertheorized. This is perhaps due to the difficulty in theorizing what constitutes a successful or failed social movement, as social movements are rooted in their own unique political, cultural and social environments which makes drawing broad comparisons challenging. There has been debate within the literature about how to measure the success or failure of a social movement, but the focus is primarily on the political outcomes, neglecting social and cultural impacts (Burstein et al., 1995; Kolb, 2007, p.4). Related to this, academics have begun to theorize on the causal factors which contribute to the success or failure of a movement (Giugni, 2008, p.1583). However, there has been a tendency to view them as isolated factors, rather than analysing how different factors influence or challenge one another. This is a gap that I seek to address: simply looking at the political outcomes fails to assess the full range of outcomes that a social movement produces. By examining concepts of success and failure, as well as the factors identified as impacting the outcome of social movements, I will apply these to the case study of the 2014 Hong Kong Umbrella Movement, to demonstrate that, whilst the movement may have failed in some ways, it has been successful in others, and these successes have been overlooked by academics and the media. To start with, it is important to define what a social movement is, before going on to discuss definitions and ways to measure success and failure as stipulated in the literature. It is my contention that, whilst the literature has focused heavily on success and failure in the political arena, to gain a complete understanding of social movement outcomes, it is also necessary to include social and cultural outcomes. I will also examine some of the internal and external causal factors identified in the literature which contribute to social movement outcomes, in order to establish a lens through which to contextualise the decline of the movement. 1.2 Defining social movements

Academics have defined social movements in different ways. Diani (1992, p.2) defines social movements as “networks of informal interactions between a plurality of individuals, groups and/or organizations, engaged in political and cultural conflicts, on the basis of shared collective identities”, thereby stressing the diversity of actors coming together around a common goal or identity. However, (Giddens, 1989, p.624) defines them more simply as a “collective attempt to further a common

interest, or secure a common goal, through collective action outside the sphere of established institutions”. Further, McAdam and Snow (1997, xviii) define social movements as a “collectivity acting with some degree of organisation and continuity outside of institutional channels for the purpose of promoting or resisting change in the group, society, or world order of which it is a part”. There are many other definitions but, broadly speaking, there are some key commonalities between the definitions: “collective action for a common cause” and “operating outside of established political institutions” (Burstein et al., 1995, p.277). Social movements are mobilized based on perceived injustices within society. They are different from interest groups or political parties, as they operate outside of the national political framework, though they may have alliances with established political parties. For this dissertation, I will be using Tarrow’s (1994, p.4) definition, as it presents the most conclusive definition adopted in the literature: “collective challenges by people with common purposes and solidarity in sustained interaction with elites, opponents and authorities”. This definition highlights the continuous nature of the interaction between social movement actors and other players around a common goal. A common misconception of social movements is to portray them as unified, static movements. As Burstein et al (1995) argue, social movements are often made up of diverse groups with different tactics or goals; they are interacting not only with one another but with the broader political and social environment, and, as a result, they are constantly changing and adapting. There are various debates within the social movement literature between sociologists, psychologists and political scientists. These debates include, but are not limited to, old versus new social movements, the life cycle of movements and why people engage in social movements. There are also several dominant theories which have been used to analyse and understand social movements, most notably resource mobilization, political opportunity and collective behaviour theories. These theories are useful in helping to explain the emergence of social movements, but they can also be used to explain why some movements are more successful than others. My focus is on the outcomes of social movements, both short term and long term, as it is under researched compared to other areas. When examining the outcomes of social movements, there are three central questions that need to be addressed: “How do we define successful and failed outcomes?”; “How do we measure these outcomes?”; and, in analysing the impact of the social movement, “Would this outcome have occurred if the social movement had not taken place?” (Amenta and Young, 1999, p.23). 1.3 Defining ‘success’ and ‘failure’

Conceptualizing success and failure within social movements is challenging and inherently problematic. As a result, there is no conclusive definition or theory on this issue (Burstein et al., 1995, p.276). Despite this, the literature provides interesting and insightful discussion on perceptions of success and failure, which, for this dissertation, provides a foundation to establish definitions for these terms. Whilst social movements need to be seen as unique in their own context, it can be argued that there are certain commonalities which transcend these differences and make a successful or an unsuccessful outcome more likely. Scholars, including Gamson (1990), Burstein et al (1995), Amenta and Young (1999), Giugni (1998), Tilly (1999), and Bosi et al (2016), amongst others, have debated how to measure success or failure within social movements. Yet, as Lauer (1976, p.99)

has highlighted, given the subjective nature of ‘success’ and ‘failure’, establishing definitions for these terms in relation to social movements is challenging. Giugni (1998, p.383) builds on this, claiming that some observers will deem a movement to be a success even if it has not achieved its intended goals. In addition, Haiven and Khasnabish (2013, p.482), as well as Burstein et al (1995, p.281), illustrate this complexity by arguing that different actors, even within the same movement, will have differing views of what constitutes a successful outcome. This presents two problems: defining the terms, and how to measure success and failure. A considerable amount of research into social movement outcomes has relied heavily on success being defined as achieving a movement’s intended goals, and thereby anything short of achieving these goals is deemed failure (Oberschall, 1993; Burstein et al., 1995, p.282). Gamson (1990), who is widely regarded as a pioneer in this area of research, views success in two ways: ‘acceptance’, in terms of gaining political representation or being seen as a legitimate actor, and ‘new advantages’ in terms of achieving a desired policy change. Whilst such a reading of ‘success’ might seem logical and has the advantage of being easy to understand, it is problematic for many reasons (Amenta and Young, 1999, p.40), not least because it suggests that failure equates to not achieving any of these specific gains. However, as Christiansen (2009) demonstrates, there are outcomes worse than failure, such as repression or other impacts that restrict or run counterproductive to the movement’s goals. This does not mean that evaluating success using a movement’s goals as the yardstick is not meaningful; the goals remain of analytical importance, but an evaluation that only focuses on them excludes other important outcomes and results (Amenta and Young, 1999, pp.22–23). Concepts of success and failure based purely on a movement’s performance in achieving its stated goals are reductionist, because it suggests that social movements are monolithic, unified movements (Giugni, 1998, p.383). This fails to recognise that social movements are dynamic and adaptive (Burstein et al., 1995, p.282). Similarly, it negates the fact that social movements are often made up of factions who may have different goals and definitions of success and strategies (Giugni, 1998, p.383). Following on from this, the second difficulty is distinguishing between intended and unintended goals (Amenta and Young, 1999, p.23). Suh (2012, p.12) stipulates the importance of looking beyond a movement’s stated goals and considering unintended consequences. This is supported by Giugni (2008, p.1593) who argues that unintended consequences are also worthy of study, as they can have both positive and negative effects on the success of the overall movement. Interestingly, Tilly (1999) suggests that the most prominent outcomes from social movements often have little connection to their original intended goals. Simply judging success or failure based on explicitly stated goals is polarized in its analysis, in that it fails to register unintended, unstated or less prominent outcomes of social movements. Additionally, Kolb (2007) argues that social movement outcomes may take time to materialize. Suh (2012, p.12) posits “unintended consequences produce no less significant socio-political and cultural impacts than the intended ones do”. This makes their inclusion, on the basis that they are necessary to understand the full range of outcomes, in the definition of ‘success’ and ‘failure’ worthwhile. Greater attention needs to be given to conceptualizing success and failure within social movement outcomes; however, there is consensus that a successful social movement should bring new collective advantages (Amenta and Young, 1999, p.23). Yet, Amenta and Young (1999, p.27) exclude outcomes which only affect a

movement’s members or are ‘symbolic victories’, on the basis that they do not deliver new advantages to the wider public that the movement seeks to represent. Tilly (1999, p.268), amongst others, has gone so far as to suggest that the labels ‘success’ and ‘failure’ are futile in describing the full effects of social movements. Amenta and Young (1999, p.22) suggest using the term ‘impact’ instead of success and failure because of the evident difficulty in theorizing and measuring these terms. These terms are problematic, as they produce no conclusive definition or framework for analysis. However, as they are widely used in the literature, despite a lack of agreement on what they mean, it is necessary to continue to use them. Labelling movements either a ‘success’ or a ‘failure’, with no in between, prominent in the literature thus far, is ineffective. Doing so excludes a range of outcomes, because they fall outside of a movement’s intended goals (Amenta and Young, 1999, p.22). Therefore, it is more helpful to see partial failures and partial successes, as well as continuing to examine their outcomes, even after they cease to be a recognised entity. In this regard, Amenta and Young’s (1999, p.40) definition of “greater or lesser collective benefits” is helpful. Based on the views presented in the literature, for this dissertation, I have decided to define ‘success’ to mean producing new positive advantages which are in line with the movement’s overall goals and to the movement’s overall benefit. On the other hand, I have defined ‘failure’ to mean no advantages or even further regression away from the movement’s overall goals in terms of repression or moves that impact negatively on attainment of the movement’s goals. Including the concept of the movement’s benefits is important, because outcomes can sometimes align with a movement’s goals, but not be explicitly labelled as a goal (Kolb, 2007). Obserschall’s (1993, p.292) contribution is also helpful, in that whether a movement has succeeded or failed is indicated by whether it has made it “easier or more difficult to implement concerns and goals similar to those advocated by the movements”. In this regard, I follow Oberschall’s (1993) line of argument that it is more helpful to discuss degrees of success and failure. This is echoed by the statement made by Haiven and Khasnabish (2013, p.473) that “social movements typically dwell in the ‘hiatus’ between ‘not-successful’ and ‘not-failure’” which demonstrates the wide range of outcomes produced by social movements. For example, a social movement may fail to achieve its intended goals in terms of policy change, but it may generate favourable public opinion, which could be considered a success, in that it provides leverage to put pressure on the state actor to address the movement’s grievances. 1.4 Political, Social and Cultural Success

Giugni (1998, p.386) opines that political changes are easier to measure than cultural or social changes. As social movements are seen as political events trying to influence government policy or structure, the emphasis on policy change as a measure of success has become mainstream (Kolb, 2007, p.5). However, only focusing on the political effects negates the broader range of consequences and effects on civic society. These are worthy of research, as they help gain a deeper understanding of the extent of impacts arising from social movements (Haiven and Khasnabish, 2013, p.479). The outcomes of social movements are manifest and can affect all areas of society (Suh, 2012). It is for this reason that I reject merely analysing the political outcomes of social movements and draw attention to social and cultural outcomes as well. I

argue that, whilst political, social and cultural impacts deal with different aspects of movement outcomes, they should not be seen as independent from one another. Instead, it is through acknowledging and recognising the links between the different arenas that it is possible to gain a deeper understanding of the multiple repercussions of social movement and thereby gauge its successes as well as its failings. Whilst the outcomes can be divided into political, social and cultural (Giugni and Passy, 1998; Giugni, 2008), these categories are not exhaustive; there could be other outcomes, such as effects on non-state institutions, which do not neatly fall into any of these categories. However, as of yet, it remains the most conclusive framework for working with social movement outcomes that exists in the literature. I will briefly define the different arenas of success and establish their parameters. 1.4.1 Political Political outcomes are arguably the easiest outcomes to measure empirically, and perhaps as a result, the most studied in the literature. Nonetheless, political outcomes can manifest themselves in a variety of ways: changes in policy or legislation, setting the political agenda, gaining political concessions or gaining political representation (Amenta et al., 2010). In terms of measuring political outcomes, Gamson’s (1990) framework of acceptance and new advantages is useful, but the framework also needs to extend beyond the movement’s decline in order to establish its full political impact. 1.4.2 Cultural Social movements undoubtedly have cultural outcomes and yet, this aspect has been mostly excluded from the academic literature. Rochon (1998, p.22) even argues that “the arena in which movements have the greatest effect is cultural, not political”. This is echoed by Giugni (2008, p.1591) who states that it is through cultural outcomes that social movements can achieve the most in relation to long term changes. By cultural outcomes, I refer to public opinion, changes in attitudes, identity, values, norms and even media and art (McAdam, 1994; Earl, 2004, p.510). Changing public opinion can be seen as an indirect way of achieving political outcomes and, therefore, highlights the need to view all the arenas as overlapping. (Rochon and Mazmanian, 1993, p.77). 1.4.3 Social Cultural and social outcomes are harder to measure and perhaps less apparent than political outcomes. By social outcomes, I refer to changes in social patterns and behaviour, impacts on social networks and organizations, as well as personal effects on an individual as a result of taking part in a movement (Giugni, 2008, p.489). Social outcomes have tended to focus on the most actively engaged members of a social movement, but they should also be extended to those outside of the movement. 1.5 Causal factors leading to success and failure

The same difficulty that emerges in defining and conceptualizing success and failure is apparent when trying to identify the factors which facilitate or impede a social movement. There is consensus that social movements reach favourable outcomes owing to interactions with advantageous factors as well as a favourable environment; however, the importance and ranking of these specific actors is subject to debate (Giugni and Yamasaki, 2009, p.479).

The causal factors identified in the literature can broadly be divided into two categories: internal and external. Gamson’s (1990) findings suggest that internal factors such as leadership, single issue demands and movement strategy play the greatest role in determining a movement’s outcome. Goldstone (1980) challenges the supremacy of internal factors in influencing social movement outcomes and notes the importance of external factors, such as the political environment. Simply put, internal factors are under the movement’s control whilst external factors are not (Burstein et al., 1995, p.293). Whether internal or external factors are more indicative of positive or negative outcomes is not the purpose of this dissertation. Rather, I agree with scholars such as (Amenta, 2013) and (Kolb, 2007, p.12) who take the approach that studying both the internal and external factors provides the greatest utility in analysing the full range of successful and failed outcomes. As Burstein et al (1995, p.279) argue, one of the difficulties in studying social movement outcomes is the “lack of conceptual framework that can explain how multiple factors interact to produce success or failure”. Burstein et al (1995, p.277) highlight the value of analysing social movement outcomes in terms of both their internal and external factors; they argue that outcomes are not “the product of movement characteristics and activities”, rather they interpret outcomes as “the result of interactions”. Burstein et al, (1995, p.279) go further to argue that, even though research has been conducted into one causal factor, what is lacking in the literature is an analysis of how different factors overlap and influence one another. They draw the example of the use of violence and how this influences or changes social movement organization or public opinion (ibid.,). This is clearly an avenue for further research. By using the Umbrella Movement case study, I aim to contribute to this gap in the literature, and will draw links between internal and external factors and illustrate the connections. To establish a framework, the internal and external factors widely recognised as influencing the outcome of a movement are set out below. Whilst this list of factors is by no means exhaustive, these factors are widely referred to within the literature (Burstein et al., 1995). 1.5.1 Internal factors Leadership has been highlighted as a critical factor affecting social movement outcomes. Gamson (1990) postulates that highly bureaucratized social movements with a clear leadership structure are more conducive to producing successful outcomes. Snow et al (2004) also argue that leadership, in whatever form it takes, is important to the success of the movement. Leadership has an internal and external role: to keep the group cohesive and unified; to represent and to communicate with actors outside of the movement, but also to build alliances between different actors and recruit new members. These aspects are explained by the resource mobilization theory (Jenkins, 1983). Even ‘leaderless’ movements, a concept that new social movements embrace, still have leaders in the form of informal structures, rather than a formalized hierarchy (Koustova et al., 2013, p.41). Goldstone (1980, p.1429), however, argues that it has little overall impact. Balser (1997, p.200), Gamson (1990) and Giugni and Bosi (2012) point to the risk of factionalism as a result of a lack of strong cohesive leadership as having a negative impact on movement outcomes. However, Balser (1997, p.200) also explains that factionalism is not only a product of internal problems but also a response to external changes. This symbiotic relationship further highlights the need to view these factors, not as individual, but rather in relation to others.

There is consensus in the literature that some issues are easier to change than others; for example, Giugni and Passy (1998) find that changing domestic policy is often easier than foreign policy. Similarly, Gamson (1990) indicates that social movements which seek to change power structures, constitutional matters or remove people from positions of power are less likely to succeed. This point serves to highlight that ‘successes’ and ‘failures’ in social movements are not equal: a perceived ‘failure’ of a social movement which deals with contentious politics may actually be seen as having positive outcomes by its participants (Kolb, 2007). Related to this point, Burstein (1999) suggests that single issue movements are more successful, particularly with increasing public opinion, as citizens will lose track or lose interest if a movement is trying to address too many issues. There is general agreement that social movements with a narrow focus or clearly defined single-issue demands are more successful (Gamson, 1990). Tactics and strategy, as internal factors, are seen to have an impact on the outcome of a social movement. Gamson (1990) finds that disruptive tactics are beneficial in achieving successful outcomes, suggesting that violence may even help a social movement achieve its goals. It is also possible to take the opposite view that violence has a negative effect, as it can turn public opinion against a movement. Burstein et al (1995, p.286) do not find non-violent protest methods, such as boycotts and hunger strikes, effective. They also indicate that tactics and strategy need to be seen in the light of the context, as some tactics will be better received by political institutions and the public than others, depending on the actual situation, which highlights the need to understand social movements in light of their own circumstances and context (Giugni et al., 1999, xix). 1.5.2 External factors The external factors affecting the outcomes of social movements can be explained by the political opportunity theory which posits that the success or failure of a social movement is heavily reliant on the nature of the political structure, rather than the concerted efforts of protestors (Eisinger, 1973; Tarrow, 1983; Kitschelt, 1986; Zimmerman, 2015, p.36). Tarrow (1983) argues that unstable or weak governments are more likely to make concessions. This is in line with Kitschelt’s (1986) argument about the degree of openness or closedness of the political system to the emergence of social movements, as well as their ability to react to social movement demands. Dryzek et al (2003), follow this argument, and talk about the government’s inclusivity and exclusivity in reacting to social movements, as well as its active or passive manner of engaging with social movement demands. But, equally, a political system needs to be open enough to allow social movements to emerge, without being repressed. Following this line of argument, Trevizo (2006, p.199) indicates that social movements are more effective in enacting change when they operate in democracies, thus demonstrating the importance of electoral politics. Within the political opportunity theory, Giugni and Passy (1998) reason that, to gain political advantages, political alliances are necessary; this is closely linked to leadership and the movement’s ability to frame its concerns in a convincing way. Similar to the importance of the political structure, circumstances and context have been highlighted as having an effect on social movement outcomes, suggesting that social movements will be more successful if they are dealing with an issue which is seen as politically important or in the process of undergoing change.

This links to public opinion, as it suggests that the public care more about issues which are current and receive media attention. Public opinion is cited as having an impact on social movement outcomes; Giugni and Yamasaki (2009, p.469) have demonstrated the correlation between favourable public opinion and a successful social movement. Whilst some academics attribute movement success or failure to one of the internal or external causal factors or see internal factors as having more effect than external factors, synthesising both is critical. Burstein et al (1995, p.280) argue that simply viewing external factors as separate to internal factors is not helpful and instead, analysing social movement outcomes must consider: characteristics of the organization, characteristics of the target and environmental features, i.e. the political system. Through studying these factors, Burstein et al (1995, p.293) argue that, in general, highly organized, single issue movements, focusing on weak political targets, in a favourable environment, result in more positive outcomes. Whilst helpful, such findings are somewhat to be expected; instead, it is applying these factors and appreciating their interaction in the context of the environment that proves to be most helpful in understanding why some movements are more successful than others as well as understanding their influence over time. Whilst this list of causal factors is by no means exhaustive, they are sufficient to establish a basic framework on which to analyse why the movement declined.

Chapter 2: The Decline of the Umbrella Movement

2.1 Introduction

An important issue with the literature’s current conceptions of success and failure is that they fail to give consideration to the unique circumstances in which social movements emerge. Therefore, in seeking to make a deeper analysis of the effect that the Umbrella Movement (hereinafter the ‘Movement’) had on Hong Kong, I find it more useful to examine the decline of the movement through the causal factor framework. In doing so, the decline of the movement can be accounted for by the unfavourable circumstances, as well as changes in circumstance which account for the ultimate decline of the movement, with the final protest site being cleared on 15 December 2014. As Meyer (2004, p.125) argues, it is important to see these factors as mutually interactive, not only to determine immediate outcomes but also long term effects and influence. Although these factors have also been used to explain movement emergence, I argue they are equally as informative in explaining why some movements are more resilient than others and have more positive short-term effects. I divide my analysis into two sections. The first section examines internal factors: leadership, goals and tactics, before going on to explore external factors: political system, context and public opinion. I will demonstrate the strong links between the factors, and highlight the utility of this framework in explaining movement decline. These factors are also helpful in determining why the Movement declined with no concessions gained and therefore was deemed a failure by many. I will go on to explain in Chapter 3 the broader effects of the movement, which question the extent to which we can label the Movement a failure. 2.2 Internal factors

2.2.1 Leadership Cai (2017, p.155) and Wong and Chung (2016, p.872) have determined that a critical reason for the Movement’s decline was the lack of strong, cohesive leadership. Occupy Central with Love and Peace (OCLP) was formed and led by Chu Yiu-ming, Benny Tai Yiu-ting and Chan Kin-man; its manifesto was issued in March 2013 (Chu et al., 2013), with the planned occupy movement due to commence on 1 October 2014, the National Day of the People’s Republic of China. It was action by the student groups, led principally by Joshua Wong from Scholarism, and Alex Chow and Lester Shum from the Hong Kong Federation of Students (HKFS), who pre- empted the planned start of OCLP by initiating a boycott of classes, which later resulted in the storming of Civic Square outside the Central Government Offices. This forced Benny Tai to announce the start of the Occupy Movement earlier than intended (Cheng and Chan, 2017, p.227). The student leaders effectively supplanted the leadership of the OCLP trio, thus ensuring that OCLP never developed in the way it was originally envisaged (Yeung, 2014; Hui and Lau, 2015, p. 348). This created a fragmented leadership structure, as some students and other participants disagreed with OCLP’s goals and tactics and looked to student leaders for guidance. The use of tear gas and pepper spray by police on 28 September 2014 against protestors using only umbrellas to protect themselves earned the movement its new

name (Ortmann, 2016, p.113). The perceived police brutality and excessive use of force also galvanised support for the movement, resulting in further participants joining (Cheng and Chan, 2017, p.228). The spontaneous emergence of the Movement and, as a result, its lack of formal leadership or hierarchical structure, is indicative of new social movements. Cai (2017, p.155) correctly points out that decentralization of leadership does not equate to poor leadership, but, in the case of the Umbrella Movement, a lack of clear and strong leadership ultimately hindered its potential. The most prominent groups in the movement were Scholarism, the HKFS and OCLP, but participation also extended to involve a variety of groups such as Civic Passion and the Labour Party (Wong and Chung, 2016, p.867). This presented inherent difficulties in presenting a united front, as each group came with their own goals, strategies and expectations, which led to the emergence of divisive factions (Hui and Lau, 2015, p. 349). Individuals from these different groups emerged and gained prominence, becoming spokespeople and public icons for the movement. However, none of these leaders could speak for the movement as a whole, because they represented their own group’s interests (Bush, 2014; Cheng and Chan, 2017, p. 223). The lack of centralized leadership only fuelled divisive factions, which is exemplified by the divergence on tactics and strategy (Au, 2017b, p.13). Yeung (2014) suggest that the majority of the participants were ‘self-organized’, relying on social media posts to inform them of the latest developments. However, Tharoor (2014) finds that this reliance on social media with no centralized leadership left protestors confused about tactics and the overall movement’s roadmap. Furthermore, Linneman (1999, p.461) highlights the necessity of strong leadership to recruit and retain participants. In the case of the Movement, with the exception of the mass involvement after the police use of pepper spray, the movement quickly lost momentum Tharoor (2014). Most notable amongst the student leaders was Joshua Wong, the founder of Scholarism, who gained worldwide media attention and became the international face of the movement, at just 17 years old. In addition, other prominent student leaders were Nathan Law, Alex Chow and Agnes Chow, all between the ages of 17 and 24 at the time. The student leaders were effective in gaining the support of and motivating their groups, but they were also inexperienced, and this undoubtedly contributed to the overall poor and disjointed leadership (Cai, 2017, p.155). Equally, whilst collective identity theory is explanatory of the prominence of a strong, unified identity amongst the students, I would argue that they failed to mobilize older generations to support the movement, as it was framed as a students’ movement, thereby polarizing public opinion (Fominaya, 2010). The lack of clear leadership clearly created issues in other areas: the inability to present united demands, divergence on tactics, as well as failure to bolster public support. 2.2.2 Goal Type Much of the literature about the Movement states that its overall goal was to demand universal suffrage to elect the CE. Schroer (2008, p.80) posits that goals emerge as a result of interactions and developments in the political context, which I will expand on later. A neglected goal of the Movement was the rejection of the NPCSC’s (2014) ‘8/31’ electoral reform proposal. Therefore, the movement’s goals can be seen as twofold: rejecting the proposal and instead demanding universal suffrage. I will elaborate on the 8/31 decision in the following section concerning context.

It is noteworthy that Tai (2018, p.160), one of the OCLP trio, stipulates that the movement knew it would not achieve its goal of universal suffrage through a single social movement. Instead, he contends that the movement’s goal was rather to “lay a sound foundation through the continuous actions to prepare for future success”. This is also supported by Hui (2015, p.120) who suggests that the Movement should not be seen as a failure because democratization requires time and undoubtedly involves difficulties. It is widely believed that the movement conflated a number of goals under the banner of democracy (Tai, 2018, p.160). Suner (2017, p.112) and Cheng and Chan (2017, p.224) cite poor job opportunities, lack of social mobility, as well as rising property prices, as significant motivations for students and young people to participate. Cai (2017, p.158) further confirms the presence of socio-economic grievances as motivating factors, but adds that “movement participants tended to stress their demand for democracy… as the major cause of their participation”. This is representative of the broader pro-democracy movement in Hong Kong which sees the lack of democracy and self-determination over the city’s affairs as contributing to social inequality (Bush, 2014; Veg, 2017, p.341). Equally, Hui (2015, p.118) points out that the pursuit of democracy in Hong Kong is a way to guard against Beijing’s intervention, as well as to preserve Hong Kong’s innate identity and civil liberties, which are distinct from the mainland. Underlying socio- economic factors have been significant motivators in past pro-democracy movements, highlighting the overall belief that greater self-determination is the best way to address these grievances. The conflation of socio-economic goals within the Movement, as well as raising issues such as the number of mainland visitors to Hong Kong or concern with parallel traders between Hong Kong and the mainland, has been identified as a weakness in presenting a single coherent demand. Social movements need to frame their issues and demands in an intelligent manner (Linneman, 1999, p.464). Joshua Wong confirmed this weakness, stating that there was “no clear goal or roadmap... to democracy” (Liu, 2015). This raises another issue which is that the goals were not clear, and there was no compromise or proposed plan, which made it impossible for the political system to accommodate it. Again, this is indicative of the lack of central leadership and the growth of factions, which made presenting a unanimous and clearly defined goal impossible. Given the biased nature of Hong Kong’s political system, as well as Beijing’s entrenched authority over the city, this goal of universal suffrage was always going to be near impossible to achieve, especially in a single movement (Cai, 2017, p.121). In this regard, whilst the contentious nature of the goal is explanatory as to why the movement failed to gain any concessions, this should not necessarily be as seen as a failure, as a clear underlying goal was to lay the foundation for future pro-democracy movements in Hong Kong. 2.2.3 Tactics and Strategy The range of actors, goals and lack of central leadership are all inextricably linked to the disagreement and divergence on tactics. The original OCLP was established on the principle of non-violent civil disobedience and this was equally adopted by the students in what became the Umbrella Movement. Students and protestors, for the most part, remained peaceful, even when intimidated by the police use of tear gas.

The movement’s commitment to non-violence was particularly influential in gaining favourable support initially, as large crowds came to support the movement after the perceived use of excessive force by the police. Similarly, students also participated in street cleaning and recycling projects, and ran homework tutorial classes, which enhanced their image: it showed them to be socially responsible and this weakened the government’s ability to criticize the movement (Ng, 2016). However, the growing frustration with the lack of concessions, as well as the rise of divisive factions, led to disagreements over tactical escalation and some incidents of violence. The divergence over tactics is exemplified by the disagreement over the 30 November 2014 siege of the Central Government Offices by Scholarism and HKFS, which resulted in minor incidents of violence between police and protestors (Cai, 2017, p.155). This escalation ultimately came from a frustration over protracted progress, but the move was denounced by the OCLP, as well as other pan-democratic parties, for violating the non-violent code of conduct which the OCLP had entrenched (Hui and Lau, 2015a, p.349). Scholarism and HKFS were criticized for their tactical escalation, but the localist groups disagreed with the student groups for being too moderate in their goals and strategy (Hui and Lau, 2015a, p.349; Wong and Chung, 2016, p.873). This shows the lack of cohesion within the movement. As Polletta and Jasper (2001, p.293) argue, social movement tactics in themselves become linked to identity and arise from factions; this is evident in the Movement, as groups created different identities and altered their tactics accordingly. The OCLP trio subsequently surrendered to the police and urged the students to retreat and end the movement to avoid further incidents of violence, but the students were determined to continue. To exemplify the non-violent code of conduct, Joshua Wong and two other participants commenced a hunger strike (Cai, 2017, p.138). As Hui (2015, p.116) suggests, sustaining the movement became a goal in itself, despite calls from OCLP leaders to disband and regroup at a future time. The progressive fragmentation of the movement played into the government’s hands; they recognised that the movement was unsustainable and would ultimately collapse, which meant they could adopt a policy of attrition with little risk to the government or Beijing (Ortmann, 2015, p.46; Tai, 2018, p.159). The Movement adopted disruptive tactics by occupying streets and highways in popular areas of Hong Kong; however, they ultimately failed to affect the day to day affairs of the government or big businesses (Cai, 2017, p.121). Headley and Tanigawa-Lau (2016) attribute the movement’s decline and inability to gain concessions to the fact that it was not able to hurt Hong Kong’s economy. Despite concern that the movement would affect the stock market, decrease tourism to the region, as well as damage imports and exports amongst other industries, the Movement had a very minimal overall effect on Hong Kong’s business and finance sector. By affecting the business sector, the Movement could have gained the upper hand in forcing the business elite, who hold considerable power in the Legislative Council (LegCo), to put pressure on the Hong Kong government and Beijing to address electoral reform in Hong Kong. As Hui (2015, p.115) states, “street occupation was ineffective against state structure”, which resulted in the movement’s disruptive tactics being tolerated by the government with no concessions.

2.3 External factors

2.3.1 Political opportunity structure The political opportunity theory is explanatory in stipulating that the success or failure of a social movement is largely dependent on the nature of the political system that it operates within. Kitschelt’s (1986) theory of openness and responsiveness shows that the Hong Kong political system was neither open to the demands of the Movement nor able to give concessions. Hong Kong’s political system is unique, as it is a hybrid system, and whilst it has democratic features, it is not a fully representative democracy (Kuan and Lau, 2002, p.58). In this regard, electoral politics are not as important as they are in liberal democracies, as the CE is not elected by the public. Even though the movement gained support from some pan- democrat lawmakers, the entrenched bias towards pro-establishment lawmakers and the business elite meant that even political alliances were weak in forcing the government’s hand. Furthermore, given Beijing’s entrenched role in Hong Kong’s political system, with the CE being appointed by and held accountable to Beijing, the CE was not in a position to offer any concessions to the opposition (Lam, 2015, p.117; Ortmann, 2016, p.120). Despite agreeing to hold televised talks between the then Chief Secretary, Carrie Lam, and the student leaders, nothing came of the talks (Ortmann, 2015, p.46; Mey and Ladegaard, 2015, p.322). Further, given Beijing’s longstanding resistance towards western democracy, as well as the growing power of Xi Jinping as China’s paramount leader, it is evident that offering Hong Kong universal suffrage would not have been acceptable (ibid., p.117). Therefore, the Movement operating in this political environment was ultimately always going to fail to achieve its goal, as the political system was strong enough to withstand forced change. 2.3.2 Context The emergence of the Movement came as a response to the electoral reform proposal initiated by the NPCSC (Suner, 2017, p.110; Chan and Chan, 2017, p.141). The frustration stemmed from Hong Kong’s protracted democratic transition and the perceived refusal by Beijing to grant Hong Kong genuine suffrage, as stipulated in Article 45 of the Basic Law (Ortmann, 2016, pp.111–112). The context provided the movement with a sense of legitimacy, just as previous movements, such as the 2003 protest against the proposed National Security Bill (Article 23 of the Basic Law) and the 2010 protest against National Education had reacted to political developments and resulted in the proposals being revoked. Given that there are limited political avenues for popular involvement, social movements in Hong Kong frequently show discontent with the CE. I would argue that events, such as the annual July 1 protest, shaped the Movement and contributed to its emergence. In the unique political context of Hong Kong, the decline of the Movement was inevitable, thus it should not be analysed as a stand-alone event. In this regard, the Umbrella Movement, as a pro- democracy movement, needs to be seen as another movement building on past pro- democracy movements which originated in the 1960s (Law, 2018) 2.3.3 Public Opinion Public support for the Movement peaked in October 2014 after the police used tear gas and pepper spray against protestors, resulting in mass support for the movement (Hui, 2015, p.116). Yet, as Tai (2018, p.159) points out, the longer the protests went on, the more popular support started to decline. In November, a public opinion poll revealed that 67.4% of interviewees wanted the protester to leave the occupied areas

and by December this had increased to 76.2%. In spite of this, support for the ‘Occupy Movement’ remained steady at 31.1 - 33.9% from September to December 2014, with particularly strong support from younger residents (CCPOS, 2014a; 2014b). This indicates how the public became tired of the movement, viewing the blocking of streets and highways as an inconvenience to their daily life (Lam, 2015; Lowe and Tsang, 2018, p.8). In addition, with no political concessions being granted, the public began to see the occupation as futile (Chan and Chan, 2017, p.142). Without high levels of public support and popular interest in the movement, the diminishing support culminated with the decline of the movement and made it relatively easy for police to clear the remaining sites without a backlash. Public support is closely linked to the tactics and strategy of the movement, and ultimately the strategy was unsuccessful in maintaining long term public support. Similarly, the decline in public support was perhaps owing to the movement’s inability to frame the issue in a coherent and unified way, which resulted in the public losing interest (Polletta and Jasper, 2001, p.293). While public opinion only played a limited role in the decline of the movement, it did not directly contribute to it. Rather, the government used the declining public support to claim legitimacy in gaining court orders to clear the sites. The internal and external causal factors offer valuable insight into the unique circumstances of the Movement. It demonstrates that these factors are not stagnant and in fact change as they react to developments in their environment. Ultimately, by the end of the movement, these factors were all unfavourable, therefore culminating in the movement’s physical decline. This demonstration of the complex, unfavourable circumstances, particularly the unique political system, contributes to the argument that judging a movement on its ability to achieve its stated goal is reductionist. It fails to take into account complex and changing internal and external dynamics which greatly influence movement outcome. Hence, I would argue that the Movement was always destined to ‘fail’, in the sense that it would decline without achieving universal suffrage. Therefore, these factors are useful in offering greater insight beyond a movement’s ‘failure’ to achieve its goal. Furthermore, these weaknesses are informative, as they undoubtedly help shape future pro-democracy movements in Hong Kong, just as past movements helped shape the Movement.

Chapter 3: The Broader Impacts of the Umbrella Movement

3.1 Introduction

This chapter sets out to demonstrate, using the 2014 Umbrella Movement as a case study, that a re-analysis of binary terms, such as success and failure, is necessary to account for the wide range of social movement outcomes, both intended and unintended, as well as immediate and long-term temporal effects. The literature provides a rich source of information on the emergence and mobilization of the Movement, but is significantly less forthcoming on the long term outcomes. Consequently, analysis of post-Umbrella Movement impact has been overlooked. I would argue that the influence of the Movement did not stop with the clearance of the occupied sites. Instead, it has affected and continues to influence civic society in Hong Kong. Therefore, to gain a more complete understanding of the impacts of social movements, longer term outcomes need to be considered when assessing success and failure. These outcomes can be broadly categorized into three groups: political, social and cultural, but, as I pointed out in chapter one, these groups should not be viewed as exclusive; rather, cognizance needs to be taken of the fact that they can have multiple overlapping effects. Some commentators, including Lau, (2014) and Headley and Tanigawa-Lau, (2016), have claimed that the Movement failed, based on the fact that it did not achieve its goal of persuading the NPCSC to rescind its 31 August 2014 ‘8/31’ decision to prescribe pre-screening of candidates for the 2017 election of Hong Kong’s CE. The Movement’s ultimate objective was to pave the way to freer elections to fulfil the aspirations of many Hong Kong people. Closer analysis of the context of the Movement reveals that the term ‘failure’ is reductionist and does not consider the range of outcomes which continue to affect Hong Kong’s civic society. Further, analysis of outcomes reported in the literature demonstrates that the prominent understanding of success and failure only takes into account events and consequences when the social movement is active, thereby ignoring effects which occur after the movement’s decline. Social movements are inherently complex, dynamic networks, which change and adapt to their environment. It is also evident that they continue to exert influence even after the movement as a recognizable entity has declined (Cai, 2017, p.152). In this regard, Chan and Chan (2017, p.142) challenge the Movement’s perceived failure by showing that the effects on civic society have been significant. This is supported by Hui’s (2015, p.120) assertion that it is a “mistake to see the Umbrella Movement in isolation and make a leap to the conclusion… that it has failed”: her work serves as evidence of the fact that the Movement was so readily labelled a failure without any assessment of its potential future influence. Similarly, Lee (2018, p.22) questions the failure of the Movement: he acknowledges that, by traditional standards of success, it failed to gain any political concessions, but he establishes that it laid the groundwork for future movements, as well as instigating a political awakening for a whole generation of Hong Kong youth.

3.2 Political outcomes

Literature that has addressed social movement outcomes has focused almost exclusively on political outcomes. I am critical of this, not because political outcomes are unimportant, but rather because they should also be analysed along with social and cultural effects, due to the often interlinked nature of social movement outcomes. For the purpose of this analysis, there are three major political developments arising from the Movement: the defeat of the 8/31 decision in LegCo, the 2016 LegCo election results, and the rise of localism. 3.2.1 Blocking the electoral reform proposal The main goal of the Movement was to seek universal suffrage in line with international norms as a basis to elect Hong Kong’s CE. It emerged as an issue following the NPCSC’s (2014) 8/31 electoral reform proposal. Ultimately, the popular discontent with the proposal was manifested in the Movement, as participants felt that Beijing was not genuine in its promise to implement universal suffrage as stipulated in Article 45 of the Basic Law (Bush, 2014). This divisive electoral reform proposal was blocked by the pan-democrats in LegCo on June 18, 2015 (B. Fong, 2017; Hung, 2017, p.29). In fact, whilst the pan-democratic members of LegCo had sufficient votes to ensure that the two-thirds majority required to pass the proposal would not be reached, the pro-establishment camp mistakenly walked out of the chamber, in the belief that there was not a sufficient quorum for the vote. The vote was held before they could return and the motion was defeated by 28 votes to 8. This was embarrassing for the pro-establishment camp, as they failed to support the reform being promoted by Beijing. It could be argued that the link between the proposal being blocked and the effects of the Movement is tenuous, as it was blocked because of a poorly timed walk-out. However, this outcome is a result of the movement; support for the movement clearly put pressure on the pan-democrats to vote against the proposal, as conceding to Beijing would have affected their credibility with the electorate. Furthermore, as pan-democrats did have sufficient seats to block the proposal, it is most likely that the proposal would still have been blocked, even if pro-establishment lawmakers had not walked out (Ortmann, 2016, p.113). Whilst the Hong Kong parliamentary system has limited democratic features, past events, such as the 2003 protests against the National Security Bill (Article 23 of the Basic Law) and the 2010 protests against National Education, demonstrate the effectiveness of social movements in putting pressure on the government to reconsider policy (Wang, 2017, p.129). Arguably, these moves have not resulted in meaningful gains towards transforming Hong Kong into a democracy, but they have demonstrated people’s resistance to Beijing’s growing encroachment into Hong Kong’s autonomy. Academics have criticized the pan-democrats’ decision to block the 2015 electoral reform proposal, stating that it is ironic that Hong Kong could have had some form of democracy in the 2017 CE election, whereas, by blocking the reform package, it ensured that the current electoral system remained intact (Lam, 2015, p.118; Tai, 2018, p.160). They also argue that accepting the reform proposal could have provided the foundation upon which to negotiate with Beijing to implement genuine democratic practices in the future. Such a reading of events may be overly optimistic. Instead, the stand taken by the Movement protestors is far more convincing: accepting the reform proposal would have fulfilled Beijing’s promise of

implementing universal suffrage in Hong Kong, but it would only be token universal suffrage, falling well short of international standards, given that candidates would be pre-selected by a pro-Beijing dominated selection committee (Ortmann, 2016, p.112; Cai, 2017, p.1). It is also doubtful that by supporting the reform proposal Hong Kong people would be rewarded with further concessions from Beijing: Beijing may be open to consultative democracy (Li, 2008), but there is no evidence to indicate that they are in favour of universal suffrage under a democratic system of government, as such a system could lead to demand for democratic concessions in other areas of China, which would ultimately pose a threat to the supremacy of the Chinese Communist Party. On this basis, I would disagree with the analysis that the Movement’s effect on blocking the reform proposal has moved Hong Kong further away from achieving genuine democracy. Instead, it should be viewed as a positive outcome arising from the legacy of the Movement: defeating the reform proposal sent out a clear message to Beijing that the people of Hong Kong aspire to genuine democracy. 3.2.2 Growth of localism One of the most significant outcomes of the Movement has been the increase in support for localist groups (Chan, 2016, p.892). Localism broadly refers to different degrees of self-determination attempting to distance Hong Kong from Beijing’s control (ibid., p.894). It is not a homogenous group and the goals of localist groups range from greater autonomy to more radical goals of Hong Kong independence or even advocating a return to British rule (Hui and Lau, 2015a; Lam and Cooper, 2018, p.10). Localist groups existed before the Movement, but they were more interested in historical and cultural preservation (Lai, 2006). The Movement has been identified as an important turning point for the rise of localism, as it gained new political impetus after the Movement’s failure to gain democratic concessions from the Hong Kong government and Beijing (Kaeding, 2017, p.157; Kwong, 2018, p.366). The support for localist groups remains in the minority, but the growth represents a new force within Hong Kong politics. Its objectives and strategies are seen as far more radical, and they even advocate the use of violence in defending Hong Kong (Kwong, 2016, p.65; Cai, 2017, p.159). 3.2.3 2016 Legislative Council elections The most indicative outcome arising from the Movement, linked to the rise in localism, was the LegCo elections in September 2016. These elections resulted in the highest voter turnout in recent history at 58.28% of the electorate (Kaeding, 2017, p.159). For a city that has been described as ‘politically apathetic’, this turnout suggests a renewed concern and interest in Hong Kong’s politics and, particularly, its democratic transition. However, the government also took the unprecedented step of disqualifying six localists for advocating Hong Kong independence, on the basis that such views were not in line with the Basic Law. The results of the election demonstrate the transformative effects that the Movement had on Hong Kong’s politics, with the emergence of new young candidates being elected to LegCo. Six localist candidates were elected; thus, for the first time, the localists became a political force to challenge the traditional pro-establishment and, in particular, pan-democratic parties. Whilst pan-democratic parties have pushed for greater democratic representation in Hong Kong, they have always maintained that Hong Kong’s future lies with China. Therefore, the rise of localists, and their

affiliation to parties advocating independence and self-determination, was an ideological move away from values of the traditional democrats (Chong, 2018, p.195). They also gave voters, particularly young voters, an alternative to the pan-democrat parties. The six new localist members of LegCo were: Nathan Law from Demosistō, a newly- founded party led by Joshua Wong; Lau Siu-Lai from Democracy Groundwork; Eddie Chu from the Land Justice League; Sixtus ‘Baggio’ Leung and Yau Wai-Ching from Youngspiration; and Cheng Chung-tai from Civic Passion (Lowe and Tsang, 2018, p.8). Perhaps most notable was Nathan Law, who played a prominent role in the Movement as a student leader alongside Joshua Wong (Kaeding, 2017, p.162). Law, a 23 year old student, became Hong Kong’s youngest member of LegCo. Despite their relative inexperience, these localists had popular support. For example, Eddie Chu gained the highest number of votes in the geographical constituencies, without any party backing. All these candidates are seen as radical, but not necessarily being ostensibly pro-independence. But, the support for these candidates in the 2016 election demonstrated that more radical localism had gained a foothold in Hong Kong politics. Similarly, it demonstrated a shift in voting patterns, as traditional pan-democrat candidates lost four seats to new localists, thus demonstrating the electorate’s frustration with the conservative candidates (Cheng and Chan, 2017, p.230). The emergence of pro self-determination candidates like Nathan Law also changed the discourse around Hong Kong’s democratic transition and, to some extent, sought to “normalise the idea of Hong Kong independence” (Lowe and Tsang, 2018, p.9), by suggesting that more drastic measures were needed in order to secure Hong Kong’s future. 3.2.4 Oath taking and further repression Following the 2016 LegCo elections, six elected law-makers were disqualified for failing to take their oaths in a proper manner (Kwong, 2018, p.373): Sixtus ‘Baggio’ Leung and Yau Wai-ching of Youngspiration, who were unseated through legal action on 15 November 2016. Nathan Law (Demosistō), Leung Kwok-hung (League of Social Democrats), Lau Siu-lai (Democracy Groundwork), Yiu Chung-yim (Architectural, Surveying, Planning and Landscape functional constituency) were later removed on 14 July 2017. The CE, Leung Chun-ying, and Secretary for Justice, Rimsky Yuen, initially took the unprecedented step of initiating a judicial review to seek the disqualification of Sixtus Leung and Yau Wai-ching who, inter alia, had altered their oaths and displayed banners stating that “Hong Kong is not China” (Hung, 2017, p.30). Subsequently, the NPCSC (2016) interpreted Article 104 of the Basic Law to clarify that legislators needed to swear allegiance to Hong Kong as part of China when taking office, as well as the manner required for taking the oath. This interpretation gave the government power to initiate action against the remaining four legislators with respect to their manner when taking their oath (Kaeding, 2017, p.163; Lowe and Tsang, 2018, p.9). This generated anger amongst voters who suggested that the government was repressing freedom of speech as well as denying them their already limited democratic say. It could also be argued that by deliberately taking their oaths in an inappropriate manner, the legislators undermined the democracy movement in Hong Kong and seriously weakened the position of the pan-democratic camp in LegCo; without these six members, the pan-democratic camp lost its ability to block changes to the Basic Law, which requires consent of two-thirds of the members of the Council (Article 159 of the Basic Law).

The Movement and the rise of localism has resulted in increased political, cultural and social repression by the Hong Kong government. Politically, this has manifested itself with the NPC’s interpretation of Article 104 of the Basic Law, which bans pro- independence candidates or parties from running for political office (Lowe and Tsang, 2018, p.9). Wallace (2017) and Kwong (2018, p.373) argue that the government has used its repression of the Movement as a catalyst for repressing and attacking the broader pro-democracy movement. However, as Lowe and Tsang (2018, p.9), as well as Ortmann (2016, p.121), argue, this repression does not render these groups powerless; instead it has fuelled support for localism amongst young voters. Cai (2017, p.153) builds on this point by suggesting that the failure of the Movement has to be seen as part of the growing frustration over Hong Kong’s slow democratic transition, which has led to the creation of and support for more radical groups. Unfortunately, the Movement, and the resulting polarization in political views, has led to political stalemate and division amongst the pan-democratic camp (Hui and Lau, 2015b, p.361; Cai, 2017, p.77). This is a negative and unintended consequence of the movement; instead of uniting actors in favour of democracy in Hong Kong, internal divisions have created factions, which can be exploited by the pro- establishment pro-Beijing groups (Hung, 2017, p.31). Another issue with labelling the Movement as a failure is that it suggests that there are winners and losers, and in this case the Hong Kong government won, because it cleared the protests without making any concessions (Mey and Ladegaard, 2015, p.331). Such analysis ignores the political deadlock that the government finds itself in; it is continually hampered in LegCo by the pan-democratics filibustering and thus delaying the progress of legislation and approval of funding for government projects (Lam, 2015, p.112). This has led to further polarization and discontent. Cai (2017, p.153) suggests that there are no winners or losers from the action taken by the Movement. I would argue that, whilst there may be no winners, the current political strife is likely to result in Beijing strengthening its control of Hong Kong. 3.3 Cultural outcomes

Closely linked to political changes, there have been a number of noteworthy cultural impacts arising from the Movement. Cultural and social outcomes tend to have been overlooked in social movement literature and certainly little attention has been paid to the social and cultural effects of the Movement. Nonetheless, they are worthy of analysis. The demographic where the cultural influence of the Movement is most evident is amongst Hong Kong’s youth (Chan and Chan, 2017, p.137). This is evident from the emergence of new political parties from the ashes of the Movement, the emergence of young activists such as Nathan Law onto the political stage, as well as the continued political engagement of young people. The Movement has strengthened the sense of identity amongst Hong Kong people and the growth in localism is closely linked to the protection of identity. Hong Kong University’s Public Opinion Programme has conducted surveys of ‘Hongkonger’s’ perceived identity since the 1997 handover of sovereignty. The 2018 figures are particularly telling: amongst people between the ages of 18 to 29, a resounding 96.4% of those polled identified themselves as a ‘Hongkonger’. This is the highest result since the poll began in 1997. The results of people over the age of 30 were not as

conclusive, as only 61.3% of those polled primarily identify themselves as a Hongkonger (HKU POP, 2018a & 2018b). The polls, in general, show a trend amongst Hong Kong people, since the Movement, to identify themselves primarily as Hongkongers rather than Chinese. This is supported by Veg (2017, p.339) and Lam and Cooper (2018, p.9), who identify the Movement as a catalyst in strengthening Hong Kong people’s feeling of identity, despite it being over 20 years since Hong Kong ‘returned’ to China. Jasper and Polletta (2001, p.296) suggest that building a collective identity is a goal of most social movements, even if it is not explicitly labelled as such, as a strong collective identity will ultimately foster and strengthen future movements. Therefore, the strengthening of a distinct Hong Kong identity and its corresponding rise in support for localism can be interpreted as a positive outcome of the movement. Whilst the political awakening of Hong Kong’s youth may be seen as a positive outcome of the Movement, Lau (2017, p.5) suggests that this came at the cost of “deep social division and political polarization”, resulting in a fragmented society. This can be interpreted as an unintended consequence of the Movement, as the movement served to unify rather than divide (Yuen, 2015, p.53). Public opinion was always split regarding the Movement and on-going antagonism amongst certain sectors of the public is evidence of the long term effects of Movement on society, particularly between different generations (Lam, 2015, p.118). The government’s repressive stance towards pro-independence candidates, as well as the wider pro-democracy camp, has also had cultural effects, most notably on freedom of speech, the arts and the media. After the Movement, a film entitled “Ten years” was released in November 2015. It portrayed a grim future of Hong Kong under complete mainland Chinese control, with no trace of its distinct identity in terms of Cantonese food or language (Fong, 2017). The film became immensely popular amongst Hong Kong youth before it was suddenly removed in January 2016. It continued to be shown privately at universities and other venues. It was nominated for and won the best film award at the 35th Hong Kong Film Awards, but this section of the awards ceremony was censored when it was broadcast on the mainland and the film was banned from sale and distribution. Consequently, the film makers have suffered as a result of the political response to the film; their ties with the film industry on the mainland have been severed and their job opportunities restricted (Fang, 2017) The disappearance of five Hong Kong booksellers in 2015 also raised concern over Beijing’s growing intervention and repressive stance towards Hong Kong (B. Fong, 2017, p.745). These booksellers worked in a bookshop in Causeway Bay, which was known for selling controversial and critical material relating to Chinese and Hong Kong politics. Whilst not political actors, their unexplained disappearance was evidence that Beijing was undermining the ‘One Country, Two Systems’ principle and not respecting Hong Kong’s freedom of speech, which is guaranteed under Article 27 of the Basic Law. It was also seen as a broader attack against anti-China and pro- democracy sentiment in Hong Kong (Hammond, 2016). The issue of freedom of speech, a civil liberty protected by the Basic Law, has also become controversial in the post-Umbrella era. Andy Chan, the convenor of the Hong Kong Nationalist Party, was invited to give a talk on Hong Kong’s

independence in August 2018 at the Foreign Correspondents Club in Hong Kong. The talk attracted criticism that propagating Hong Kong independence was crossing a ‘red line’ and should not be condoned, even under the right to free speech. Ultimately, the talk went ahead, but there were protests outside the venue and Andy Chan was subject to harassment (Sum and Lam, 2018). It raises the issue of growing repression and the fear that Hong Kong’s civil liberties could be under threat. Whilst the idea of Hong Kong independence is supported by a small minority, the talks demonstrate the rise of independence as a political option in the aftermath of the Movement. Equally, there is a growing fear in Hong Kong that the media is becoming increasingly self-censored. This is due to fear that advertisers will pull out of newspapers with an anti-China slant, as well as the fact that many newspapers are owned by mainland Chinese businessmen (B. Fong, 2017, p.737). The effects of self- censorship also spread to the education sector, with the appointment of pro-Beijing Arthur Li as chairman the Council of Hong Kong University by Hong Kong’s previously unpopular CE, Leung Chun-ying, in 2015 (Zhao and Siu, 2015). The move was met by a backlash, suggesting that the Hong Kong government was trying to repress universities from encouraging students to engage and participate in Hong Kong’s democratic transition, especially after the large role that university students played in the Movement. This fear is also echoed by academics who fear that they will not be promoted if they are thought to be speaking against the Hong Kong government or Beijing (Lee, 2016). Therefore, Beijing’s growing repression towards post-Umbrella Movement Hong Kong clearly extends beyond the parameters of politics and has had considerable effects on Hong Kong’s culture. 3.4 Social outcomes

Social and biographical repercussions have also been excluded from analysis of the post-Umbrella Movement. Yet, the effects of the Movement have manifested themselves in the formation of new social networks, changes in social behaviour, as well as consequences for movement activists. Giugni and Grasso (2016, p.85) suggest that engagement in social movements has a lasting effect on the political and personal lives of the activists. This can be seen in the case of the Movement with the growth of new localist political parties, as well as activists from the Movement running for LegCo election, but it also has had lasting negative consequences for certain activists. In the post-Umbrella Movement period, several new political parties have emerged. Demosistō was founded by Joshua Wong, Nathan Law, Oscar Lai and Agnes Chow, all Movement activists, in 2016 as a result of concern about Hong Kong’s political future. Nathan Law was elected to LegCo in 2016, but later disqualified. Youngspiration is another post-Umbrella Movement political party which is founded on protecting Hong Kong’s right to self- determination (Chong, 2018, p.193). Its representatives, Baggio Leung and Yau Wai- ching, won seats in the 2016 LegCo elections, but were also subsequently disqualified. Hong Kong Indigenous and the Hong Kong Nationalist Party are also examples of post-Umbrella Movement political parties; for them, their representatives were barred from standing in the 2016 elections because their political views were unacceptable to the government. Social groups have also emerged outside of the political arena, e.g. the Progressive Lawyers group (Lam, 2018, pp.79–80).

The creation of these post-Umbrella groups, as well as the rising level of support for and interest in them, suggests a continued commitment to achieving democracy in Hong Kong, despite the lack of success of the Movement. However, the growing repression in Hong Kong and the interpretation of Article 104 of the Basic Law have led to certain pan-democratic candidates, such as Agnes Chow of Demosistō, whose party advocates self-determination, being banned from running for 2018 by-elections (Chung and Cheung, 2018), arising from the 2016 disqualification of LegCo members. This is demonstrative of the broader effects of repression which has marked the post-Umbrella environment. There have also been negative repercussions for activists, particularly the principal activists, in the post-Umbrella Movement period. Most notably, Nathan Law, Alex Chow and Joshua Wong were jailed for unlawful assembly during the Movement. They were given sentences of six to eight months imprisonment. Initially, they were sentenced to community service, but the government appealed against the leniency of their sentences, which resulted in the prison sentences (Yu, 2017, p.59). This is undoubtedly the government posting a clear warning to future activists. The jailing of these activists also has implications, as under Hong Kong law anyone receiving a prison sentence of more than 6 months is banned from being a candidate for election to LegCo for a period of five years. Student activists have also been verbally and physically harassed by pro-Beijing supporters, with the latest example being attacks against Andy Chan, but also leaders such as Benny Tai stating that they fear for their own safety. This growing fear of personal safety extends beyond politically active members of the movement and has also led to friction in families, with parents banning their children from participating in political activities out of fears for their safety, as well as objecting to localist radicalization. Joshua Wong was detained in Thailand after being refused entry, at Beijing’s request (Cheung et al., 2016). This is illustrative of the lengths to which Beijing will go to suppress any notion of Hong Kong independence, even using its diplomatic ties as a weapon to repress the growing anti-China resentment. The failure of the Movement to gain any concessions has also led to radicalization amongst some of the participants. There is evidence of this from the emergence of pro-independence groups, as well as in changes in behaviour. Whilst the Movement was very centred around non-violent civil disobedience, its failure to make any progress has led some activists to accept that violent civil disobedience is a more effective way to achieve political change (Hui and Lau, 2015a, p.349; Chong, 2018, p.195). Vestergen et al (2017, p.218) posit that identity change is likely to produce behavioural change; this is exemplified in the case of post-Umbrella Hong Kong: establishment of a distinct Hong Kong identity amongst young people has led them to pursue more radical goals and methods to achieve them. The shift in radical behaviour is evident from the ‘Fishball Riots’ in Mongkok in February 2016 (Lau et al., 2016; Hung, 2017, p.30). The dispute was related to suppression of illegal street hawkers, rather than pro-democracy issues. The violence can be seen as a spillover from the Movement, as it involved the new localist groups such as Hong Kong Indigenous in the clashes, motivated by anti-government sentiment. Anti- government sentiment increased after the decline of the movement, which has led some citizens to resort to violence as a means of conveying their frustration with Hong Kong’s political situation (Chong, 2018, p.193). In many ways, Beijing’s growing repression towards localist groups is what fuels radicalization, both in terms of behaviour and goals, and is demonstrative of the wider political stalemate that the city is currently enduring (Suh, 2001, p.441).

Despite negative personal outcomes and growing repression, ultimately the Movement has strengthened the resolve of the protestors to keep fighting for democracy (Lowe and Tsang, 2018, p.9). This can be seen from the popularity of localist groups, as well as Movement activists standing and winning seats in LegCo to fight for future democracy. Activists who engaged in the Movement have also participated in pro-democracy movements since the decline of the Movement, which is indicative of what Polletta and Jasper, (2001, p.297) call “the spillover effect from one movement to another”. Instead of discouraging activists from continuing with the fight for universal suffrage, young people are clearly now “one, if not the most, important player in the democracy movement” Ortmann (2015, p.34).

Conclusions

Success and failure In this dissertation, I have argued that the mainstream concepts of ‘success’ and ‘failure’ within social movement literature are reductionist in accounting for the full range of impacts. Much of the literature has attributed ‘success’ to achieving a movement’s intended goal; whilst being a viable measure of success, this is not representative of the wide range of outcomes that social movements produce. There has also been a tendency only to analyse a movement’s ‘success’ or ‘failure’ until its decline; any further outcomes are excluded from analysis. Through the case study of the 2014 Umbrella Movement, I have shown that the outcomes in the post-Umbrella Movement period are manifest and worthy of analysis. Stating that the Movement failed because it did not achieve its goal of genuine universal suffrage for Hong Kong does not recognise the wider impacts that the movement has had and continues to have on Hong Kong’s political, cultural and social domains. This highlights the second issue within mainstream social movement literature: academics who have addressed social movement outcomes and attempted to theorize movement success have predominantly focused on political impacts. Such analysis ignores the complexity of social movements and negates the range of social and cultural impacts. As these three domains are intrinsically linked and mutually influential, the domains of social movement outcomes need to be expanded to accommodate all such impacts. I have stated that using ‘success’ and ‘failure’ as binary terms is reductionist; movements are rarely a complete ‘success’ or ‘failure’. Instead, it is far more informative to analyse the ground between success and failure, as it allows account to be taken of the full range of positive or negative impacts arising from a movement’s outcomes. Further study is needed to develop new concepts and theories to gain a full understanding of social movement impacts. I do not object to using the terms ‘success’ and ‘failure’, but I take them to mean ‘positive’ and ‘negative’: some movement outcomes can be considered a success because they achieve new advantages in line with a movement’s broader goals, whilst others can be deemed failures because they result in subjugation of the movement. Explaining decline and causal factors The internal and external causal factors identified in the literature as underpinning success and failure are helpful in gaining insight into why some movements have more successful outcomes than others. In the case of the Umbrella Movement, there were internal issues with leadership, lack of clear demands and ineffective tactics, combined with fragmentation of the movement and public apathy, which led to its decline. The political environment was also unfavourable: given that the Hong Kong government is constrained by Beijing, it was unable to grant the protestors any concessions, especially under a Chief Executive who adopted a hardline, pro-Beijing stance. Therefore, it is inevitable that the movement ended, but to draw the conclusion that it achieved nothing would be to negate its legacy. The full effect of a social movement takes time to materialize; consequently, it is inevitable that there is a lag between the movement ending and its broader impacts being felt. This is particularly so in the post-Umbrella period in Hong Kong. The formation of new political parties by Umbrella activists was a direct response to the lack of concessions from the government. This is significant because it represents a transition from actors acting outside traditional political institutions to trying to

achieve their goals by becoming part of it. The rise of localism and its foothold gained in the 2016 LegCo elections demonstrates the effects that the movement had on Hong Kong people, particularly its youth. This was never an explicit goal of the movement: whilst it may have occurred had the movement been successful, its apparent ‘failure’ belied the fact that it maintained significant support, sufficient to gain six LegCo seats and undermine the established pan-democratic camp. The effects of the movement also transcend politics, as they affect society and culture. The growing repressive attitude of Beijing towards Hong Kong can be seen as a response to the movement, but Beijing’s position has had the reverse effect: it has generated a stronger feeling among the public, especially the youth, of being ‘Hongkongers’ rather than Chinese, and the need to maintain Hong Kong’s heritage, values and freedoms. This repression is also a negative consequence of the movement, one that was not intended and one that makes achieving the goal of genuine democracy in Hong Kong harder. Also, it is not limited to political actors, but extends to non-political actors, such as academics, students, members of the media and those in the arts. The lives of the principal activists in the Movement have been transformed, with individuals, such as Joshua Wong, being imprisoned, banned from visiting mainland China, as well as countries under Beijing’s influence. He was also physically and verbally attacked for his role in the movement and his continued striving for electoral reform. The Umbrella Movement has resulted in a growing polarization amongst Hong Kong’s citizens and political deadlock between the pro-establishment and pan- democratic camps. As attitudes harden, the scope for compromise is diminishing. The Hong Kong government and the pro-establishment camp were not successful in passing controversial electoral reform proposals, and members of the pan- democratic camp have filibustered in an effort to block government legislation and funding proposals. This impasse has been partly broken: the oath-taking saga resulted in six members of the pan-democratic camp losing their seats, and the government has banned candidates, whose views are inconsistent with the Basic Law. The result is that the pan-democratic camp no longer holds sufficient seats to block amendments to the Basic Law and changes to LegCo procedures. This is a self- inflicted wound for members of the Movement. Whether the pro-democracy movement in Hong Kong can recover in this adverse political environment is yet to be seen, but the current social and political environment is, at least in part, a consequence of the Movement. Hong Kong youth appears still to hold firm to the aspirations of the Umbrella Movement. Comparison with other movements Whilst I have only used the case study of the Umbrella Movement, it is useful to assess how my findings relating to the concepts of success and failure apply to other social movements, for example, the Taiwanese Sunflower Movement and the Black Lives Matter movement in the United States. The 2014 Sunflower Movement is an interesting comparison because it occurred in the same year and was largely student- led as well. It emerged due to opposition to a free trade agreement with China, but can be seen more broadly in the context of Taiwan’s relationship with China. The Sunflower Movement achieved a more positive outcome as the proposed agreement was blocked; however, this is broadly due to the movement’s internal and external dynamics, as well as the fact that Taiwan enjoys autonomy, without being beholden to Beijing (Au, 2017a). The success of the movement continues to affect Taiwanese politics, with young people politically engaged and active; the election in 2016 of a

pro-independence President demonstrates the effects of the movement on broader society (Ho, 2018). Therefore, even in social movements which achieve their intended goal, there remains the need to analyse post-movement impacts. However, like the Umbrella Movement, it is perhaps too early to analyse the full effects of the Sunflower Movement, especially with Xi Jinping as China’s paramount leader and his attitude towards any form of separation. The Black Lives Matter movement is aimed at stopping police brutality and racism towards African-Americans; by following traditional concepts of success and failure, the movement could be labelled as a failure, as these problems still affect American society. Such an analysis fails to recognise the full impact of the movement in raising awareness of the issue, changing discourse around it, as well as putting it on the political agenda (Thompson and Thurston, 2018, p.117). Social movements need to be seen in their broader context and not just as isolated events. Just as the Umbrella Movement needs to be seen as another step in Hong Kong’s protracted democracy movement, the Black Lives Matters movement builds on the American Civil Rights movement in the 1950s and 60s (Lebron, 2017). The underlying motivation of racial equality remains active and the Black Lives Matter movement will shape future movements addressing the same issue. Within social movement literature, it is evident that there is a need to move away from traditional concepts of success and failure, by broadening our analysis to include long-term and unintended consequences. In doing so, we gain a much deeper appreciation of the far-reaching impacts of social movements. In an era where such movements are rampant, this need is greater than ever.

Bibliography

Amenta, E. 2013. Political Mediation Model In: D. A. Snow, D. Della Porta, B. Klandermans and D. McAdam, eds. The Wiley-Blackwell Encyclopedia of Social and Political Movements [Online]. Oxford, UK: Blackwell Publishing Ltd. [Accessed 13 September 2018]. Available from: http://doi.wiley.com/10.1002/9780470674871.wbespm158.

Amenta, E., Caren, N., Chiarello, E. and Su, Y. 2010. The Political Consequences of Social Movements. Annual Review of Sociology. 36(1), pp.287–307.

Amenta, E. and Young, M.P. 1999. Making an Impact: Conceptual and Methodological Implications of the Collective Goods Criterion In: How Social Movements Matter. Minneapolis: University of Minnesota Press.

Au, A. 2017a. Collective Identity, Organization, and Public Reaction in Protests: A Qualitative Case Study of Hong Kong and Taiwan. Social Sciences. 6(4), p.150.

Au, A. 2017b. Reconceptualizing Social Movements and Power: Towards a Social Ecological Approach. The Sociological Quarterly. 58(3), pp.519–545.

Balser, D.B. 1997. The Impact of Environmental Factors on Factionalism and Schism in Social Movement Organizations. Social Forces. 76(1), p.199.

Bland, B. 2017. Generation HK: Seeking Identity in China’s Shadow. S.l.: Penguin Random House Australia.

Bosi, L., Giugni, M. and Uba, K. 2016. The Consequences of Social Movements: Taking Stock and Looking Forward In: The Consequences of Social Movements. Cambridge: Cambridge Printing House, pp.3–37.

Burstein, P. 1999. Social Movements and Public Policy In: How Social Movements Matter. Minneapolis: University of Minnesota Press, pp.3–21.

Burstein, P., Einwohner, R.L. and Hollander, J.A. 1995. The Success of Political Movements: A Bargaining Perspective In: The Politics of Social Protest. Minneapolis: University of Minnesota Press, pp.275–295.

Bush, R.C. 2014. Hong Kong: Examining the Impact of the ‘Umbrella Movement’. Brookings. [Online]. [Accessed 2 September 2018]. Available from: https://www.brookings.edu/testimonies/hong-kong-examining-the-impact- of-the-umbrella-movement/.

Cai, Y. 2017. The Occupy Movement in Hong Kong: Sustaining decentralized protest. London & New York: Routledge.

CCPOS (ed.). 2014a. Public Opinion & Political Development of Hong Kong, Survey Results (Press Release). [Accessed 14 September 2018]. Available from: http://www.com.cuhk.edu.hk/ccpos/images/news/TaskForce20141116-e.pdf. CCPOS (ed.). 2014b. Public Opinion & Political Development of Hong Kong, Survey Results (Press Release). [Accessed 14 September 2018]. Available from: http://www.com.cuhk.edu.hk/ccpos/images/news/TaskForce_PressRelease_ 141218_English.pdf.

Chan, C. 2016. Post-Umbrella Movement: Localism and Radicalness of the Hong Kong Student Movement. Contemporary Chinese Political Economy and Strategic Relations: An International Journal. 2(2), pp.885–908.

Chan, E. and Chan, J. 2017. Hong Kong 2007-2017: a backlash in civil society. Asia Pacific Journal of Public Administration. 39(2), pp.135–152.

Cheng, E.W. and Chan, W.-Y. 2017. Explaining spontaneous occupation: antecedents, contingencies and spaces in the Umbrella Movement. Social Movement Studies. 16(2), pp.222–239.

Cheung, E., Carvalho, R. and Lau, S. 2016. Thai immigration officer confirms Hong Kong activist Joshua Wong blacklisted at China’s request. South China Morning Post. [Online]. [Accessed 13 September 2018]. Available from: https://www.scmp.com/news/hong-kong/politics/article/2025214/thai- immigration-officer-confirms-hong-kong-activist-joshua.

China 1997. The Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China [Online]. [Accessed 9 September 2018]. Available from: http://www.basiclaw.gov.hk/en/basiclawtext/images/basiclaw_full_text_en. pdf.

Chiu, S.W.K. and Lui, T.L. (eds.). 2000. The Dynamics of Social Movements in Hong Kong. Hong Kong: Hong Kong University Press.

Chong, E.K.M. 2018. Student and youth activism: The new youth groups in anti- National Education policy and Occupy Central Movement In: S. S. H. Lo, ed. Interest Groups and the New Democracy Movement in Hong Kong. Routledge Contemporary China Series. London & New York: Routledge, pp.174–205.

Christiansen, J. 2009. Four Stages of Social Movement. EBSCO Research Starters. [Online]. [Accessed 11 September 2018]. Available from: http://www.ebscohost.com/uploads/imported/thisTopic-dbTopic-1248.pdf.

Chu, Y., Tai, Y.B. and Chan, K. 2013. Manifesto. Occupy Central with Love and Peace. [Online]. Available from: https://oclphkenglish.wordpress.com/about- 2/manifesto/.

Chung, K. and Cheung, T. 2018. Activist Agnes Chow decries ‘political screening’ over by-election ban. South China Morning Post. [Online]. [Accessed 13 September 2018]. Available from: https://www.scmp.com/news/hong- kong/politics/article/2130714/hong-kong-activist-agnes-chow-banned-legco- election.

Diani, M. 1992. The Concept of Social Movement. The Sociological Review., pp.1–25.

146

Dryzek, J., Downes, D., Hunold, C., Schlosberg, D. and Hernes, H.-K. 2003. Green States and Social Movements: Environmentalism in the United States, United Kingdom, Germany, and Norway. Green States and Social Movements: Environmentalism in the United States, United Kingdom, Germany, and Norway., pp.1–238.

Earl, J. 2004. The Cultural Consequences of Social Movements In: The Blackwell Companion to Social Movements [Online]. Wiley-Blackwell, pp.508–530. [Accessed 14 September 2018]. Available from: https://onlinelibrary.wiley.com/doi/abs/10.1002/9780470999103.ch22.

Eisinger, P.K. 1973. The Conditions of Protest Behavior in American Cities. American Political Science Review. 67(01), pp.11–28.

Fang, K. 2017. Ten Years: What happened to the filmmakers behind the dystopian Hong Kong indie film? Hong Kong Free Press. [Online]. [Accessed 14 September 2018]. Available from: https://www.hongkongfp.com/2017/07/10/ten-years-happened-filmmakers- behind-dystopian-hong-kong-indy-film/.

Fominaya, C.F. 2010. Collective Identity in Social Movements: Central Concepts and Debates: Collective Identity in Social Movements. Sociology Compass. 4(6), pp.393–404.

Fong, B. 2017. In-between liberal authoritarianism and electoral authoritarianism: Hong Kong’s democratization under Chinese sovereignty, 1997–2016. Democratization. 24(4), pp.724–750.

Fong, K. 2017. Ten Years: What happened to the filmmakers behind the dystopian Hong Kong indy film? Hong Kong Free Press HKFP. [Online]. [Accessed 11 September 2018]. Available from: https://www.hongkongfp.com/2017/07/10/ten-years-happened-filmmakers- behind-dystopian-hong-kong-indy-film/.

Gamson, W.A. 1990. The strategy of social protest 2nd ed. Belmont: Wadsworth Pub.

Giddens, A. 1989. Sociology. Cambridge: Polity Press.

Giugni, M. 2008. Political, Biographical, and Cultural Consequences of Social Movements. Sociology Compass. 2(5), pp.1582–1600.

Giugni, M. and Bosi, L. 2012. The Impact of Protest Movements on the Establishment: Dimensions, Models, and Approaches In: K. Fahlenbrach, M. Klimke, J. Scharloth and L. Wong, eds. The Establishment Responds: The Power, Politics and Protest since 1945. Oxford: Palgrave Macmillan, pp.17–28.

Giugni, M. and Grasso, M.T. 2016. The biographical impact of participation in social movement activities: beyond highly committed New Left activism In: L. Bosi, M. Giugni and K. Uba, eds. The Consequences of Social Movements [Online]. Cambridge University Press, pp.85–105. [Accessed 13 September 2018]. Available from: /core/books/the-consequences-of-social-movements/the- biographical-impact-of-participation-in-social-movement-activities-beyond-

147

highly-committed-new-left- activism/E3B3E414363E74B57F761639178B48FD.

Giugni, M., McAdam, D. and Tilly, C. (eds.). 1999. How Social Movements Matter. Minneapolis, Minn: University of Minnesota Press.

Giugni, M. and Passy, F. 1998. Social Movements and Policy Change: Direct, mediated, or joint effect? American Sociological Association Section on Collective Behavior and Social Movements Working Paper Series. [Online]. [Accessed 11 September 2018]. Available from: https://archive- ouverte.unige.ch/unige:103599.

Giugni, M. and Yamasaki, S. 2009. The Policy Impact of Social Movements: A Replication Through Qualitative Comparative Analysis. Mobilization: An International Quarterly. 14(4), pp.467–484.

Giugni, M.G. 1998. Was It Worth the Effort? The Outcomes and Consequences of Social Movements. Annual Review of Sociology. 24, pp.371–393.

Goldstone, J.A. 1980. Theories of Revolution: The Third Generation. World Politics. 32(03), pp.425–453.

Haiven, M. and Khasnabish, A. 2013. Between Success and Failure: Dwelling with social movements in the hiatus. Interface. 5(2), pp.472–498.

Hammond, P. 2016. The Six-Monthly Report on Hong Kong - 1 July to 31 December 2015 [Online]. Westminster: Foreign & Commonwealth Office. [Accessed 12 September 2018]. Available from: http://data.parliament.uk/DepositedPapers/Files/DEP2016- 0140/The_Six_Monthly_Report_on_Hong_Kong_- _1_July_to_31_Dec_2015.pdf.

Headley, T.Y. and Tanigawa-Lau, C. 2016. Why Did Hong Kong’s Umbrella Movement Fail? The Diplomat. [Online]. [Accessed 9 September 2018]. Available from: https://thediplomat.com/2016/04/why-did-hong-kongs- umbrella-movement-fail/.

HKUPOP 2018a. Ethnic Identity – ‘Hongkonger’ in broad sense (per poll, by age group) 8/1997 - 6/2018 - Chart. Hong Kong University Public Opinion Programme. [Online]. [Accessed 11 September 2018]. Available from: https://www.hkupop.hku.hk/english/popexpress/ethnic/eidentity/hkbroad/p oll/eid_poll_chart.html.

HKUPOP 2018b. Ethnic Identity ‘Hongkonger’ in broad sense (per poll/by age group) 8/1997 - 6/2018 - Table. Hong Kong University Public Opinion Programme. [Online]. [Accessed 11 September 2018]. Available from: https://www.hkupop.hku.hk/english/popexpress/ethnic/eidentity/hkbroad/p oll/datatables.html.

Ho, M. 2018. The Activist Legacy of Taiwan’s Sunflower Movement. Carnegie Endowment for International Peace. [Online]. [Accessed 14 September 2018]. Available from: https://carnegieendowment.org/2018/08/02/activist-legacy- of-taiwan-s-sunflower-movement-pub-76966. 148

Hui, P.K. and Lau, K.C. 2015a. “Living in truth” versus realpolitik: limitations and potentials of the Umbrella Movement. Inter-Asia cultural studies. 16(3), pp.348–366.

Hui, P.K. and Lau, K.C. 2015b. “Living in truth” versus realpolitik: limitations and potentials of the Umbrella Movement. Inter-Asia cultural studies. 16(3), pp.348–366.

Hui, V.T. 2015. Hong Kong’s Umbrella Movement: The Protests and Beyond. Journal of Democracy. 26(2), pp.111–121.

Hung, S.C.-F. 2017. Interest groups and the democracy movement in Hong Kong: A historical perspective In: S. S.-H. Lo, ed. Interest Groups and the New Democracy Movement in Hong Kong. Routledge Contemporary China Series. London & New York: Routledge, pp.14–33.

Jenkins, J.C. 1983. Resource Mobilization Theory and the Study of Social Movements. Annual Review of Sociology. 9, pp.527–553.

Kaeding, M.P. 2017. The Rise of “Localism” in Hong Kong. Journal of Democracy. 28(1), pp.157–171.

Kitschelt, H.P. 1986. Political Opportunity Structures and Political Protest: Anti- Nuclear Movements in Four Democracies. British Journal of Political Science. 16(01), p.57.

Kolb, F. 2007. Protest and opportunities: the political outcomes of social movements. Frankfurt, Main: Campus.

Koustova, N., Kwantes, C.T., Thrasher, G. and Fernando, T. 2013. Leadership Structures in Leaderless Social Movements In: J. H. Ellens, ed. Winning Revolutions: The Psychosocial Dynamics of Revolts for Freedom, Fairness, and Rights. Praeger.

Kuan, H.-C. and Lau, S.-K. 2002. Between Liberal Autocracy and Democracy: Democratic Legitimacy in Hong Kong. Democratization. 9(4), pp.58–76.

Kwong, Y.-H. 2018. Political repression in a sub-national hybrid regime: the PRC’s governing strategies in Hong Kong. Contemporary Politics. 24(4), pp.361– 378.

Kwong, Y.-H. 2016. The growth of ‘localism’ in Hong Kong: A new path for the democracy movement? China Perspectives. (3), p.63.

Lai, C. 2006. Star Ferry standoff as protesters break in to stop pier’s demolition. South China Morning Post. [Online]. [Accessed 11 September 2018]. Available from: https://www.scmp.com/article/575254/star-ferry-standoff-protesters- break-stop-piers-demolition.

Lam, J.T.M. 2015. Political Decay in Hong Kong After the Occupy Central Movement. Asian Affairs: An American Review. 42(2), pp.99–121.

149

Lam, W. 2018. Hong Kong’s fragmented soul In: W. Lam and L. Cooper, eds. Citizenship, identity and social movements in the new Hong Kong: localism after the umbrella movement. Routledge contemporary China series. New York: Routledge, Taylor & Francis Group, pp.72–93.

Lam, W. and Cooper, L. (eds.). 2018. Citizenship, identity and social movements in the new Hong Kong: localism after the umbrella movement. New York: Routledge, Taylor & Francis Group.

Lau, C., Lee, D., Ng, J., Lo, C., Sun, N. and Lau, S. 2016. Shots fired and bricks thrown: Hong Kong tense after Mong Kok mob violence on first day of Lunar New Year. South China Morning Post. [Online]. [Accessed 8 September 2018]. Available from: https://www.scmp.com/news/hong-kong/law- crime/article/1910845/shots-fired-and-bricks-thrown-hong-kong-tense-after- mong.

Lau, J.Y.F. 2017. Reflections on the Umbrella Movement: Implications for civic education and critical thinking. Educational Philosophy and Theory., pp.1–12.

Lau, N. 2014. ‘Umbrella Revolution’ finally ends in failure. [Accessed 9 September 2018]. Available from: http://www.chinadaily.com.cn/hkedition/2014- 12/15/content_19084427.htm.

Lauer, R.H. (ed.). 1976. Social movements and social change. Carbondale: Southern Illinois University Press.

Law, W. 2018. Decolonisation Deferred In: Citizenship, identity and social movements in the new Hong Kong: Localism after the Umbrella Movement. New York: Routledge, Taylor & Francis Group, pp.13–33.

Lebron, C.J. 2017. The making of Black lives matter: a brief history of an idea. New York, NY: Oxford University Press.

Lee, D. 2016. Outspoken lecturers fear they will be silenced by HKU hiring reforms. South China Morning Post. [Online]. [Accessed 14 September 2018]. Available from: https://www.scmp.com/news/hong- kong/politics/article/2000145/lecturers-fear-they-will-be-silenced-hku- proposals.

Lee, F.L.F. 2018. Internet alternative media, movement experience, and radicalism: the case of post-Umbrella Movement Hong Kong. Social Movement Studies. 17(2), pp.219–233.

Lee, F.L.F. and Chan, J.M. 2010. Media, Social Mobilization and Mass Protests in Post-colonial Hong Kong: The Power of a Critical Event. London & New York: Routledge.

Leung, B.K.P. 2000. The student movement in Hong Kong: Transition to a democratizing society In: S. W. K. Chiu and T. L. Lui, eds. The Dynamics of Social Movements in Hong Kong. Hong Kong Culture and Society. Hong Kong: Hong Kong University Press, pp.209–225.

150

Li, J. 2008. Consultative Democracy, People’s Democracy. China Today. [Online]. [Accessed 13 September 2018]. Available from: http://www.chinatoday.com.cn/ctenglish/2018/zdtj/201803/t20180301_800 118954.html.

Linneman, T.J. 1999. Representing Social Movements: Advocacy and Activism in Northwest Bookstores. Sociological Perspectives. 42(3), pp.459–480.

Liu, J. 2015. Joshua Wong: ‘We had no clear goals’ in Hong Kong protests. BBC News. [Online]. [Accessed 13 September 2018]. Available from: https://www.bbc.com/news/blogs-china-blog-33729241.

Lo, S.S.-H. (ed.). 2017. Interest Groups and the New Democracy Movement in Hong Kong. London & New York: Routledge.

Lowe, J. and Tsang, E.Y.-H. 2018. Hong Kong’s Umbrella Movement and the promotion of deviance. Deviant Behavior. 0(0), pp.1–12.

McAdam, D. 1994. Culture and Social Movements In: E. Laraña, H. Johnston and J. R. Gusfield, eds. New Social Movements: From Ideology to Identity [Online]. Temple University Press, pp.36–57. [Accessed 14 September 2018]. Available from: https://www.jstor.org/stable/j.ctt14bst9g.

McAdam, D. and Snow, D.A. 1997. Social movements: readings on their emergence, mobilization, and dynamics. Los Angeles, Calif: Roxbury Pub.

Mey, J.L. and Ladegaard, H.J. 2015. Discourse, democracy and diplomacy: a pragmatic analysis of the Occupy Central movement in Hong Kong. WORD. 61(4), pp.319–334.

Meyer, D.S. 2004. Protest and Political Opportunities. Annual Review of Sociology. 30(1), pp.125–145.

National People’s Congress Standing Committee (NPCSC) 2014. NPC Decision on Universal Suffrage for HK Chief Executive Selection. [Accessed 3 August 2018]. Available from: http://www.china.org.cn/china/2014- 08/31/content_33390388.htm.

National People’s Congress Standing Committee (NPCSC ) 2016. Interpretation of Article 104 of Basic Law of Hong Kong SAR. [Accessed 3 September 2018]. Available from: http://www.xinhuanet.com/english/2016- 11/07/c_135811504.htm.

Ng, J.Y. 2016. Umbrellas in Bloom: Hong Kong’s occupy movement uncovered. Hong Kong: Blacksmith Books.

Oberschall, A. 1993. Social movements: ideologies, interests, and identities. New Brunswick (U.S.A.): Transaction.

Ortmann, S. 2016. The lack of sovereignty, the Umbrella Movement, and democratization in Hong Kong. Asia Pacific Law Review. 24(2), pp.108–122.

151

Ortmann, S. 2015. The Umbrella Movement and Hong Kong’s Protracted Democratization Process. Asian Affairs. 46(1), pp.32–50.

Polletta, F. and Jasper, J.M. 2001. Collective Identity and Social Movements. Annual Review of Sociology. 27, pp.283–305.

Rochon, T.R. 1998. Culture Moves: Ideas, Activism, and Changing Values. Princeton, NJ: Princeton University Press.

Rochon, T.R. and Mazmanian, D.A. 1993. Social Movements and the Policy Process. The ANNALS of the American Academy of Political and Social Science. 528(1), pp.75–87.

Schroer, T. 2008. Technical Advances in Communication In: Identity Work in Social Movements. Minneapolis: University of Minnesota Press, pp.77–99.

Snow, D.A., Soule, S.A. and Kriesi, H. (eds.). 2004. The Blackwell companion to social movements. Malden, MA: Blackwell Pub.

Suh, D. 2001. How Do Political Opportunities Matter for Social Movements?: Political Opportunity, Misframing, Pseudosuccess, and Pseudofailure. The Sociological Quarterly. 42(3), pp.437–460.

Suh, D. 2012. Intricacies of Social Movement Outcome Research and beyond: “How can you Tell” Social Movements Prompt Changes? Sociological Research Online. 17(4), pp.1–11.

Sum, L. and Lam, J. 2018. Hong Kong pro-independence leader defies Beijing to speak at FCC. South China Morning Post. [Online]. [Accessed 11 September 2018]. Available from: https://www.scmp.com/news/hong- kong/politics/article/2159608/hong-kong-pro-independence-leader-andy- chan-defies-beijing.

Suner, A. 2017. Trees and umbrellas: a parallel reading of the Istanbul Gezi Park Movement and the Hong Kong Umbrella Movement. Inter-Asia Cultural Studies. 18(1), pp.104–119.

Tai, Y.B. 2018. From Past to Future: Hong Kong’s Democratic Movement In: Citizenship, Identity and Social Movements in the New Hong Kong: Localism after the Umbrella Movement. Oxon: Routledge, pp.151–171.

Tarrow, S. 1994. Power in Movement: Social Movements, Collective Actions and Politics. New York: Cambridge University Press.

Tarrow, S. 1983. Struggling to Reform: Social Movements and Policy Change during Cycles of Protest. Ithaca, New York: Centre for International Studies.

Tharoor, I. 2014. 4 reasons Hong Kong’s protests failed (and 4 reasons they didn’t). Washington Post. [Online]. [Accessed 12 September 2018]. Available from: https://www.washingtonpost.com/news/worldviews/wp/2014/10/08/4- reasons-hong-kongs-protests-failed-and-4-reasons-they- didnt/?utm_term=.717c1450f1d3.

152

Thompson, D. and Thurston, C. 2018. American Political Development in the Era of Black Lives Matter. Politics, Groups, and Identities. 6(1), pp.116–119.

Tilly, C. 1999. From Interactions to Outcomes in Social Movements In: M. Giugni, D. McAdam and C. Tilly, eds. How social movements matter. Social movements, protest, and contention. Minneapolis, Minn: University of Minnesota Press, pp.253–270.

Trevizo, D. 2006. Between Zapata and Che: A Comparison of Social Movement Success and Failure in Mexico. Social Science History. 30(2), pp.197–229.

Veg, S. 2017. The Rise of “Localism” and Civic Identity in Post-handover Hong Kong: Questioning the Chinese Nation-state. The China Quarterly. 230, pp.323– 347.

Vestergren, S., Drury, J. and Chiriac, E.H. 2017. The biographical consequences of protest and activism: a systematic review and a new typology. Social Movement Studies. 16(2), pp.203–221.

Wallace, A. 2017. How Hong Kong Umbrella movement was crushed and pro- democracy activists gradually silenced. The Conversation. [Online]. Available from: http://theconversation.com/how-hong-kong-umbrella-movement-was- crushed-and-pro-democracy-activists-gradually-silenced-84339.

Wang, K.J.Y. 2017. Mobilizing resources to the square: Hong Kong’s Anti-Moral and National Education movement as precursor to the Umbrella Movement. International Journal of Cultural Studies. 20(2), pp.127–145.

Wong, B.W.-K. and Chung, S. 2016. Scholarism and Hong Kong Federation of Students: Comparative Analysis of Their Developments after the Umbrella Movement. Contemporary Chinese Political Economy and Strategic Relations: An International Journal. 2(2), pp.865–884.

Yeung, R. 2014. Democracy for Hong Kong: The Modest Demands of the Umbrella Protesters. Brookings. [Online]. [Accessed 12 September 2018]. Available from: https://www.brookings.edu/opinions/democracy-for-hong-kong-the- modest-demands-of-the-umbrella-protesters/.

Yu, T.-F. 2017. The Imprisonment of Occupy Student Leaders. China Perspectives. 4, pp.59–62.

Yuen, S. 2015. Hong Kong After the Umbrella Movement. China Perspectives. 1, pp.49–53.

Zhao, S. and Siu, J. 2015. Critics, allies line up as Arthur Li appointed Hong Kong University’s governing council chairman. South China Morning Post. [Online]. [Accessed 11 September 2018]. Available from: https://www.scmp.com/news/hong-kong/education- community/article/1896674/critics-allies-line-arthur-li-appointed-hong- kong.

Zimmerman, E. 2015. Social Movements and Political Outcomes: Why Both Ends Fail to Meet. Annales Universitatis Mariae Curie-Skłodowska. 22(1), pp.31–49. 153

Most Things Are North: Norwegian identity in foreign policy discourse and cooperation with Russia in the Arctic Linn Vardheim

Abstract: This dissertation will examine the ways in which foreign policy and bilateral relations in the Arctic region are created on and articulated by ideas of national identity. This will be done by looking at the bilateral relationship between Norway and Russia; two states that come to represent the encounter between major global identities, but also share a history of Arctic engagement. It will be seen that Norwegian national identity is instrumental to the conceptualisation of foreign and security policy in the Arctic region, and that the resulting policy impacts the way the bilateral relationship with Russia is conducted in the Barents Sea. It will be shown that the bilateral relationship between Norway and Russia from the Norwegian perspective is influenced by an idea of Russia as the radically ‘other’, and that this complicates cooperation. This does not mean that cooperation cannot take place but necessitates a re-articulation of identity through policy in order to achieve comprehensive cooperation on all political levels.

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Introduction: Look to the North

Look to the north More often. It is long, this country. Most things are north.14

The Arctic has for the past several years been the subject of intensified attention in academic as well as popular media discourse. This attention has been directed at many aspects of this rapidly changing region but has primarily been concerned with the dramatic impacts of climate change and the consequences this has and will continue to have for international relations. When a Russian flag was planted on the seabed of the geographic North Pole in 2007, the narrative of the so-called ‘race for the Arctic’ gained traction, as countries were seen to scramble for the rights to territory, influence and resources in the vast expanses of snow and ice (Hilde, 2013). Climate change, rising temperatures and the melting ice of the Arctic is a source of enormous potential globally; for economic gain, resource extraction, territorial assertations and livelihood. The enormous potential fosters immense interest for states around the world, and thus also potential for inter-state conflict in a vulnerable region. This dissertation will contribute to the academic discourse on Arctic security by examining how foreign policy and bilateral relations in the region are created and articulated based on and through ideas of national identity. This will be done by focusing on the bilateral relationship between Norway and Russia; two states that represent different ideas of identity in both local and global terms. The two countries have a long heritage in their Arctic presence and coexistence: ‘Russia and Norway are unique among the Arctic states in their long-lasting and wide-ranging engagement in the north, both economically and militarily, and in both cases, there is a high degree of continuity in their policies’ (Tamnes, 2011: 56). The tradition for engagement and consequent ingrained identification with the region is significant for the formulation of policy and impacts the ways in which the bilateral relationship is conducted in contemporary times. The main concern of this dissertation will therefore be: to what extent is Norwegian Arctic policy informed and directed by ideas of and concerns for national identity, and to what degree do these concerns and resulting policy engender a cooperation relationship with Russia in the Arctic? The Norwegian-Russian relationship has traditionally been a stable element in the Arctic region, but one that in recent years has become increasingly subject to the complications of geopolitical events and their consequences. The demands and interests of external actors upsets the equilibrium in a carefully balanced relationship, established in ideas of Arctic sovereignty and independence. The question therefore arises whether the long-standing and traditional Russian and Norwegian engagement in the Arctic may be based on ideas of identity that are no longer compatible with the current political climate. Due to the scope of the dissertation, only one dimension of the bilateral relationship will be analysed.

14 ‘Se mot nord/ Oftere./ Det er langt dette landet/ Det meste er nord.’ (Jacobsen, 1985) 155

The first half of the dissertation will examine the position and importance of identity in international relations theory, and the ways in which identity shapes discourse, and Norwegian Arctic discourse especially. The first chapter will, following an examination of existing literature, argue that there is an inextricable link between ideas of identity, specifically national identity, and the ways in which discourse, of which foreign policy is part, is formulated and communicated. It will be seen that this relationship is not casual but mutually constitutive, indicating that discourse also has an impact on fundamental ideas of national identity. This means that identities are not static and absolutely objective, but subject to change and re-articulation. The next chapter will go on to describe the relevance of the Arctic region and give a brief outline of the background for the current global interest in the opportunities that climate change unavoidably creates. The Arctic however, is an interesting region not just because of climate change and new opportunities, but because it is understood as a relatively ‘neutral’ stage for the encounter between the global East and West in matters of security and influence. While this neutrality is metaphorical rather than actual, the Arctic as a region involves many areas of policy and works as a clear backdrop for the perceived confrontation between the liberal West, of which Norway and its allies in NATO is part, and Russia. Norway is a state with a national identity closely tied to the Arctic region, in which it encounters the much bigger and stronger Russia. In this encounter, identities and ideas of belonging to certain groups becomes defining for relations. As a small state with a small and relatively homogenous population, Norway proves a compact case study. The dissertation will then go on to examine the overlap of the ideas of the Arctic region and the importance of national identity in order to explain the ways in which Norwegian Arctic identity has traditionally been constructed and articulated. It will be seen that a number of central ideas about Norwegian national identity, created over time and through reinforcement in discourse, inform the ways foreign policy is conducted in the north: ‘[N]orwegian foreign policy in the Arctic is closely linked to the often vague but central concept of national identity, and the crucial role Russia plays as “significant other” to Norway in the North’ (Jensen, 2017: 121). These Arctic identities are ties to grand narratives of what it means to be Norwegian, something that is reflected and encapsulated in policy across the board. It will be seen that the historical and social ideas of the Arctic as the national frontier and significantly the idea of Russia as the oppositional ‘other’ against which Norwegian identity is defined persists. Furthermore, concerns for ontological security, that is the security of the ‘self’, are evident in the discourse surrounding and constituting policy. The second half of the dissertation will be concerned with the complexities of the Norwegian-Russian bilateral relationship in the Arctic region. It will especially focus on what kind of impact the national narratives embedded in Norwegian Arctic policy mean for this relationship. The first chapter of this section, chapter 4, will give an outline of the past and present relationship between Norway and Russia in the Arctic, as well as the central points of conflict. The dissertation will then go on to examine the potential for cooperation between the two nations in theory and practice. It will be seen that there are several areas of confrontation in these bilateral relations that in the Arctic could become a potential basis for open and militarised conflict. This is true even without the consideration of the international geopolitics that unavoidably bleeds into the regional relationship. Here, the othering of Russia that is seen as necessary in the definition of the Norwegian could prove harmful to cooperative 156 efforts, as it distances Russia both domestically and bilaterally, and reinforces ideas of division on the international stage. It will be argued, however, that the idea of Russia as other may not necessarily be an obstacle to complete and holistic cooperation in the Arctic. It will be emphasised that there already is some degree of pragmatic cooperation between Norway and Russia, on issues such as border administration, fisheries regulation and emergency response, though these issues are usually assigned to the realm of low politics. This proves that conflict and cooperation are not mutually exclusive processes, and can happen simultaneously in a bilateral relationship. Ultimately, however, the question remains whether the discourses of foreign policy as based in national identity as well as international commitments frames Russia in a way that makes wider cooperation in the realm of high politics increasingly difficult and maybe even impossible. Here it will be suggested that the relational and dynamic nature of identity as proposed by constructivist theory enables changes in and re-articulation of the bilateral relationship. National identity could be used as a tool to either promote or discourage cooperation with Russia in the Arctic. The observations of this dissertation are based off information from official Norwegian government documents, speeches and statements, as well as academic secondary readings. Government documents are accessed in their English translations as well as in their original format. Where own translations are necessary, original quotes will be given in the footnotes. A significant limitation for this work is the absence of the Russian dimension of the bilateral relationship. This is due to a lack of space as well as language capabilities. This dissertation is consciously one- sided in its analysis and should not be regarded as a complete account of the Norwegian-Russian bilateral relationship. While the nature of bilateral relations is dependent on many external variables, it is interesting to consider the internal drivers shaping the foreign and security policies that maintain these relationships. While there is ‘[a] certain amount of literature on how Norway’s position on the North is affected by external forces (…) little has been written, as yet, on the influence Norway itself brings to bear on matters concerning the North’ (Jensen, 2017: 124). This dissertation aims to contribute to the lack of scholarship surrounding these drivers in the Arctic by examining whether foreign policy based on ideas of national identity encourages of prevents conflict. Foreign and security policies are ultimately concerned with the survival of the state, and national identity creates the parameters within which the relevant states are defines. It follows that understanding the role and articulation of these identities is important for understanding national interest as well as domestic and international state action.

Chapter 1: Who we are and what we do – a literature review 157

Identity as a concept has inhabited a position of varying importance and emphasis in international relations theory and discourse. The dominant paradigms of international relations, realism and liberalism, while differing in their approach to state behaviour, have both traditionally lacked a framework for understanding where these behaviours originate. Realist scholars such as Morgenthau, Hobbes and Waltz considered the anarchy of the international community as the starting point and fundamental basis for the behaviour of states, which were seen as self-interested entities primarily seeking their own survival. In realist theory, national interest is ‘[d]etermined deductively; it is inferred from the anarchic, self-help character of the international system’ (Weldes, 1996: 277). A significant problem with this approach however, it that it ‘[r]ests on a questionable empiricist epistemology which ignores the centrality of processes of interpretation’ (ibid.: 278). In other words, the concept of ‘interest’ becomes too broad to generate useful information about specific choices and courses of action in the international system. Realism’s refusal to consider the internal dynamics of states as significant to their behaviour, and its tendency to see all state entities as essentially identical ‘black boxes’, means that the theory fails to account for different state responses to situations that are structurally similar. Liberalism, as fronted by figures such as Locke, Jervis and Nye, while radically different from realism in its conclusions, also took ‘[t]he self-interested state as the starting point for theory’ (Wendt, 1992: 392). As liberalism lacks a theory to explain changing behaviours it ‘[m]ust privilege realist insights about structure while advancing their own insights about process’ (ibid.: 393). Because realism assumes that all states and their interests are the same, it follows that the structure of international relations and distribution of power can be objectively assessed. The realist ideas therefore rest ‘[u]pon the assumption that an independent reality is directly accessible both to statesmen and to analysts’ (Weldes, 1996: 279). Because the existence of an objective truth is assumed and states not fitting this idea would necessarily not survive, ‘[o]nly simple learning or behavioural adaptation is possible; the complex learning involved in redefinitions of identity and interest is not’ (Wendt, 1992: 392). Scholars such as Nye, Jervis and Keohane suggest that the transformation of identity has an important role in the understanding of the international system, but importantly, ‘Regimes cannot change identities and interests if the latter are taken as given (…)’ (ibid.: 393). In his article ‘Anarchy is what States Make of it’, Wendt brought identity to the fore as an important analytical tool in international relations theory. He suggested that identity was vital for analysis as well as for discourse and coined the term ‘constructivist’ for this approach, to ‘[e]mphasize their focus on the social construction of subjectivity (…)’ (1992: 393). His central thesis was that ‘[p]eople act toward objects including other actors, on the basis of the meanings that the objects have for them. States act differently toward enemies than they do toward friends because enemies are threatening, and friends are not. Anarchy and the distribution of power are insufficient to tell us which is which.’ (ibid.: 396) Identity, in other words, is relational; the meaning and shape of identity changes through intersubjective relationships, depending on what it is compared and contrasted to.

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Discourse is inevitably the only way to properly articulate identity, as there exists no ‘real world’ that can be found outside the bounds of discourse. In other words, the discursive and the non-discursive is not separate: ‘The world exists outside of language, but we can never know that (beyond the fact of its assertation), because the existence of the world is literally inconceivable outside of language and our traditions of interpretation’ (Campbell, 1998: 6). It follows that the state and state identity ‘[e]xists only insofar as it is a cultural artefact that is represented textually’ (ibid.: 11). Discourse, of which foreign policy is part, becomes a crucial part of the process of identity formation. The relationship between identity and foreign policy is crucial to the analysis of state action. Importantly however, the constitutive nature of identity on foreign policy is not a one-way process: ‘Policies require identities, but identities do not exist as objective accounts of what people and places “really are,” but as continuously restated, negotiated, and reshaped subjects and objects’ (Hansen, 2008: xvi). Foreign policy and identity therefore stand ‘[i]n a constitutive, rather than casual, relationship’ (ibid.: xvi). Foreign policy consequently ‘[h]elps produce and reproduce the political identity of the doer supposedly behind the deed’ (Campbell 1998: x). Understanding national identity therefore could give important insights into the basis for foreign policy past, present and future, but this process could also be examined in reverse. As nothing exists before it is articulated through discourse, and identity must be compared to something it is not in order to come into being, the relation to that which is different has naturally become a central point of analysis for those examining identity in international relations theory. Identity is created by difference: ‘Strangers – the sociologically marginal – play an important role in collective identity formation inasmuch as their very presence brings the question of who is self and who is other to the fore’ (Neumann, 1996: 147). In practice, this means that there will always be an ‘other’ that a given identity is seen as essentially different from (Campbell, 1992; De Cillia et al., 1999; Said, 1978). The other is both necessary for the formulation of identity and the primary threat to state security, as ‘The mere existence of an alternative mode of being, the presence of which exemplifies that different identities are possible and thus denaturalizes the claim of a particular identity to be the true identity, is sometimes enough to produce the understanding of a threat’ (Campbell, 1998: 3). The inherent insecurity in the presence of the other has led to the conceptualisation of what is termed ontological security; the security of the ‘self’. Steele suggests that ‘While physical security is (obviously) important to states ontological security is more important because its fulfilment affirms a state’s self-identity (i.e. it affirms not only its physical existence but primarily how a state sees itself and secondarily how it wants to be seen by others)’ (2009: 2). Similarly, Berenskoetter ascertains that ‘[o]ntological security is achieved by “knowing” ones’ place within and, thus, relation to, the world, by having a clear sense of who and where one is’ (2014: 6) Having clearly articulated parameters for a state identity thus offers a sense of security essential to the survival of the entity; identity becomes the referent object (Berenskoetter, 2014; Kristoffersen and Dale, 2014). Identity becomes vital to an understanding of both physical and ontological security. Some see the concept of ontological security as too simplistic. Lebow suggests that the view of identity as a constant referent object of security is problematic when considering the changing circumstances surrounding the creation of identity (2016). Because identity is relational, it will invariably change depending on relation and circumstance, consequently: 159

‘[t]here is no such thing as the one and only national identity in an essentializing sense, but rather that different identities are discursively constructed according to context, that is according to the social field, the situational setting of the discursive act and the topic being discussed. In other words, national identities are not completely consistent, stable and immutable. They are, to the contrary, to be understood as dynamic, fragile, “vulnerable” and often incoherent.’ (De Cillia et al., 1999: 154) Identities change over time, from situation to situation, and are moulded to fit different purposes or to legitimate particular views or policies. The dynamic nature of state identity is interesting because it, having proven its mutually constitutive connection to discourse, has implications for foreign policy and the national identities reflected in this policy. The articulation of identity through foreign policy and vice versa over time comprises narratives that describe this identity: a national narrative. National identities are constructed through the narratives told about the nation by those with discursive power: political and cultural leaders, media and through policy among other things. National identities are thus constituted of grand narratives about a community of people, ‘[a] story which people tell about themselves in order to lend meaning to their social world’ (Ram quoted in De Cillia et al., 1999: 15). Without this narrative, ‘[t]he Self of a state does not exist’ (Steele, 2009: 20). Because these narratives are shaped by discourse, and this discourse draws on deliberate parts of national identity, these narratives are often communicated with a particular purpose. The dynamic nature of identity as communicated through discourse means that ‘the identity narrative channels political emotions so that they can fuel efforts to modify a balance of power (…). The identity narrative brings forth a new interpretation of the world in order to modify it’ (Martin quote in de Cillia et al., 1999: 156). Nations are therefore imagined political communities that are articulated by discourse, among which foreign policy is the most obvious to the international community as a whole (Anderson, 2004: 295). The continual practice and discourse of foreign policy reinforces the narrative upon which the imagined community relies for its existence. The direct relationship between identity and discourse means that identity has an important role to play in the ways external actors, the other, as well as the self is portrayed and how foreign policy issues are framed by the relevant authorities. Hopf suggests that ‘State actions in the foreign policy realm are constrained and empowered by prevailing social practices at home and abroad’ (1998: 179). This further enforces the argument that understanding relevant identities at work can be instrumental in understanding past, present and future action of a state. Some suggest however, that the multiplicity of identity gives policy makers too much freedom to foster useful analysis; ‘Their freedom is further enhanced by the fact that individual national identifications are rarely defined with any precision, making it possible for leaders to justify a wide range of policies with reference to them. For both reasons, there is no simple or direct relationship between national identification and foreign policy.’ (Lebow, 2016: 22) While a legitimate concern when examining national narratives as a whole, this view ignores the role of the audience. Extensive research has been made, particularly within the field of securitisation theory, on the importance, not only of the public 160 speech act that foreign policy represents, but about the reception and acceptance of this speech act (Balzaq, 2005: 185). It is believed that if policy makers get too frivolous with their justification of policy in the established narrative, this will be rejected by the public or other relevant audiences. This is at least partially true in a liberal democracy with adequate freedom of speech. An attempt has in any case been made to avoid the pitfalls of Lebow’s criticism in this dissertation by focusing foreign policy in relation to a specific region and a specific relationship in this region. The specific focus will hopefully exclude courses of action that deviate significantly from the established narrative. Independent of the direct correlation between identity and policy, ‘A world without identities is a world of chaos, a world of pervasive and irremediable uncertainty, a world much more dangerous than anarchy (…). In telling you who you are, identities strongly imply a particular set of interests or preferences with respect to choices of action in particular domains, and with respect to particular actors’ (Hopf, 1998: 175). The centrality of identity as an ordering presence in the international community as well as domestically makes it an interesting point of analysis for Norwegian Arctic policy, as ‘[l]eaders in these states are tasked with a new need to justify political involvement, research, investment, public spending and so on, to taxpaying voters who may consider Arctic issues distant from their everyday lives.’ (Medby, 2014: 252). Indeed, considering these views, it is argued that no policy or political discourse is free from the influence of matters of identity, and that understanding these identities at work in Norwegian Arctic policy may explain the country’s complex interaction with Russia. In conclusion, there is an intrinsic relation between who we think we are and the things we choose to do.

Chapter 2: The Arctic The Arctic makes itself interesting in the study of international relations as a region in which ideas of identity are frequently evoked to signify a sense of belonging, and to legitimise national sovereignty and territorial ownership. While Arctic territories have long since been claimed and delimitated, there seem to be strong sentiments at work regarding who really belongs as well as what constitutes a ‘real’ Arctic identity. In order to properly examine the current foreign policies at work in the Arctic, and to have any chance at predicting future challenges and solutions to potential conflict, an understanding of the relationship between identity and discourse in the Arctic is vital. The international relevance of the Arctic, as highlighted in recent years makes it an interesting arena in which politics are played out. The Arctic region has been the subject of increasing amounts of international attention in the last ten years, much of which can be attributed to the intensified concerns for and discussions surrounding global warming and its consequences. The Arctic is characterised by vast expanses of sea ice that plays an important role in regulating the global climate and is a region in which climate change has immediate and dramatic effects (National Snow and Ice Data Centre, 2018). While the melting of the polar ice cap and rising sea levels are potentially catastrophic events, the increased access this provides for the region presents both opportunities, for economic and financial gains, and challenges, in terms of security and governance. While the Arctic has previously been conceptualised as a self-contained region, it becomes increasingly relevant to emphasise the high degree of international involvement and interest that is currently a factor, and that the region is highly

161 interconnected with the rest of the world. As the Arctic changes, what these changes mean for the region’s people, territories, resources and climate takes on a highly global dimension and relevance. Definitions of the Arctic and Arctic region differs across platforms, but it is generally agreed to consist of the area that sits above the 66th parallel north; the latitude commonly known as the Arctic Circle (Le Mière and Mazo, 2013: 12). The Arctic consists of vast areas of sea, both territorial and international waters, as well as significant areas of land belonging to what is collectively known as the eight ‘Arctic states’: Canada, USA, Iceland, Denmark, Norway, Sweden, Finland and Russia (figure 1). The exact delimitations of the Arctic varies, however, depending on context and forum –in environmental research for instance, the ‘10Cisotherm’, referring to average summer temperatures, is seen as the most relevant limitation to the region (Le Mière and Mazo, 2013: 12). In national policy, the region is frequently described by use of other terminology, often in order to exclude or include certain areas, or to evoke ideas of national ownership. Examples of country-specific names are the Canadian ‘Northern Territories’ denoting the exclusively Canadian parts of the region, and the Norwegian ‘High North’ (as the English equivalent to the Norwegian ‘Nordområdene’, literally ‘northern areas’) used in Norwegian policy to denote a wider and more holistic idea of the Norwegian Arctic. This dissertation will make use of the terms Arctic and High North interchangeably when concerning Norwegian policy.

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Figure 1: Arctic region and seaways (Arctic Centre, University of Lapland, 2018) The Arctic Council, established in 1996, provides the only international forum for dedicated discussion of issues and policy pertaining to the Arctic. The Council is comprised of the eight Arctic states, along with representatives from the six groups of indigenous populations in the region (Arctic Council, 2018). While the members of the Arctic Council are recognised as equals, there is some tension between states that see themselves as having a greater right to matters concerning the Arctic waters, namely the five littoral states (A5). This has at times resulted in agreements outside of the Arctic Council that only include these five: Norway, Russia, Canada, USA and Denmark, such as the Illulissat Declaration, which concerned with maritime relations (Ocean Law, 2008). The Arctic Council significantly operates with a high number of observer states and organisations that also take part in proceedings. Together with the A8, the addition of the 13 observer states means that the Council has come to represent a significant portion of the world’s population. The number of observers may be seen as indicative of the increasing international interest in the way this region is governed. Despite membership in the Arctic Council, the concerns of indigenous populations are largely down-prioritised in Arctic discourse, especially in favour of inter-state relations. 163

The current make-up of the Arctic Council is emblematic of the international interest that the region invites, and these interests are not always compatible. This has led to a rise of discursive narratives that emphasise the fragile balance of the region, and the protentional for conflict: ‘Rapid climate change, both current and projected, has led to concern that the Arctic may soon become a sphere of competition and confrontation, as the political and military vacuum sucks in interested parties and actors jostle for position in what is the las of earth’s great unstructured regions.’ (Le Mière and Mazo, 2013: 41) Some suggest that while conflict in the Arctic may be a likely scenario, due to the considerable resources at stake, ‘[a] spill over of a conflict originating elsewhere seems the more likely scenario’ (Hilde, 2013: 146). With these factors in mind, it becomes easier to see the Arctic as the internationally entrenched region it is and understand how ‘[t]he security of the north will be heavily influenced by the overall relationship between the major powers (Tamnes, 2011: 50). A concern for many observers about the future security and stability in the Arctic region is the lacking framework for dealing with ‘hard’ security matters. The Arctic Council is significantly not an international organisation and therefore lacks the decision-making powers such a status would provide. The Council’s founding document, the 1996 Ottawa Declaration excludes discussions on ‘matters related to military security’, making it an insufficient forum to tackle many of the region’s current challenges (Arctic Council, 1996; Åtland, 2014; Scopelliti and Perez, 2016; Young, 2011). The worry is that the Arctic lacks a comprehensive security architecture to deal with the changes in the region. Changing Arctic conditions creates points of potential military and inter-state conflict. One of these is the enormous economic potential that emerges. As a natural consequence of the rising global temperatures, the Arctic seas are becoming increasingly more open and accessible. Significantly, this opens up opportunities for the extraction of resources from the Arctic sea bed. A United States Geological Survey (USGS) from 2008 estimated that the Arctic region contained ‘[9]0 billion barrels of oil, 1,699 trillion cubic feet of natural gas, and 44 billion barrels of natural gas liquids’ (USGS, 2008). This amounts to 39 % and 13 % of the world’s undiscovered resources of liquified natural gas (LNG) and oil respectively (Le Mière and Mazo, 2013: 49). Observers have noted that these numbers are purely speculative, and that ‘[t]hey are not necessarily as lucrative or revolutionary as the prevailing popular narrative would suggest’ (ibid.: 70). These popular narratives however, have perpetuated the idea of the ‘Arctic race’, which has attracted enormous interest from both Arctic and non- Arctic actors who are eager to take part in the extraction and exploitation of these reserves (Young, 2011). The resources represent astronomical economic opportunities, but also pose an inherent dilemma concerning the environmental sustainability of such actions in a vulnerable area as well as questions of the rights to territory (Oseland and Raspotnik, 2018). These concerns are prevalent as the changing Arctic provides increasing opportunities for the expansion of commercial shipping through the region. The vast majority of all international goods are at one point shipped as cargo. The main bulk of the cargo shipped between Europe and Asia is directed via the Suez Canal, which has limited capacity and is located in a politically unstable region. The melting of Arctic sea ice opens potential alternatives to this route, and ‘[t]hose concerned with 164 commercial shipping see the prospects of using the Arctic’s sea routes to reduce distances travelled by thousands of kilometres and to avoid the problems of dealing with pirates in the Gulf of Aden’ (Young, 2011: 188). The Northeast Passage (NEP) running from the northern Atlantic to the Pacific Ocean along Siberia is the most promising of these alternatives. The NEP would shorten the seaway from Europe to Eastern Asia by up to 30 %, saving both time, money and fuels (Le Mière and Mazo, 2013: 64). Additionally, the Arctic has been known as a politically stable region, providing a safe shipping environment and significant insurance savings. There is, however, no consensus on the viability of the NEP as a new hub for international trade. There are several logistical problems and severe lacks of infrastructure for large-scale shipping along the Siberian coast. Russian ice-breakers would be necessary, bringing an additional political dimension to what will essentially amount to international shipping in Russian waters. Furthermore: ‘For the foreseeable future, passages will be open only for a small part of the year, and even then conditions of broken ice and the presence of icebergs will prove extremely dangerous’ (Young, 2011: 188). With that said, the opening of the NEP is still of much interest for the transportation of liquified natural gas (LNG) and oil from extraction in the Barents Sea, and would provide a faster route to North-eastern Asia (Young, 2011; Oseland & Raspotnik, 2018). In August 2018, the world’s largest shipping company Maersk began their first test-run of the NEP from Vladivostok to St Petersburg (BBC, 2018a). Despite significant professional and academic doubts, the idea of the opportunities of the Arctic fuels a narrative of the international ‘race for the Arctic’. This has been seen as a highly exaggerated account of the actualities: ‘[S]cott Borgerson’s oft-cited, though inaccurate interpretation of the new turn in Arctic affairs, remains one of the best examples of the “race for Arctic resources” perception that emerged’ (Hilde, 2013: 133). It is important to understand however, that sea and land in the Arctic is no “wild west”, and that ‘[t]he concept of a “race for resources” in the Arctic is undermined by the location of the vast majority (90-95%) of offshore oil and gas in already demarcated EEZs (Le Mière and Mazo, 2013: 54). Consequently, ‘There are virtually no disputes in the Arctic regarding sovereignty over northern lands; no on has expressed a desire to redraw the map of the Arctic with regard to the terrestrial boundaries of the Arctic states’ (Åtland, 2014: 189). It is interesting to consider, however, that the race narrative may be consciously used to galvanise national action. As economic opportunities represent opportunities for power, major international actors see incentives to get involved in the region. The differing opinions on the nature of the Arctic ‘race’ cause extensive disagreements about how imminent inter-state conflicts are in the Arctic region. While some emphasise the increased militarisation that is taking place, others suggest that conflict is unlikely and that the changes in the region are not going to be significant enough that they cannot be handled within national frameworks (Borgerson, 2009; Lasserre et al., 2012). The changing Arctic creates ‘[a] number of soft security challenges, such as oil spills, sabotage, smuggling, illegal migration, and cruise ship accidents’ (Tamnes, 2011: 54). Potential conflicts in the Arctic now also involve environmental concerns: ‘Broadly speaking, the current agenda encompasses three categories of concerns: first, those requiring the resolution of jurisdictional issues among the Arctic states; second, those centring on relationships between the Arctic states and non-Arctic states interested in the region; and third, those raising 165

questions about the protection of Arctic ecosystems and cultures.’ (Young, 2011: 189) In terms of hard security, change in the Arctic does not necessarily equal conflict, but the modernisation of military capabilities may be misinterpreted and lead to destabilisation. For this reason, some see the Arctic as a developing prisoner’s dilemma where ‘The underlying problem seems to be a persisting lack of certainty about other actors’ peaceful intentions’ (Åtland, 2014: 146). It is at the same time emphasised that all Arctic states have committed to the frameworks of international law (Huebert et al., 2012). These states have a great appreciation for the Arctic as a region of low tensions, ‘[s]urrounded by politically and militarily stable countries that can draw on successful regional cooperation arrangements and a long tradition of peaceful coexistence’ (Åtland, 2014: 146). In the current political climate, a stable region benefits all Arctic states and most other international actors. Immense economic potential however, creates tension between competing actors that, when influenced by external geopolitical events may cause open and militarised conflict.

Chapter 3: The High North Understanding the foreign and security policy at work in the Norwegian Arctic requires an understanding of the narratives of national and Arctic identity from which these discursive acts emerge. Examining the position that the Arctic as a region holds in the idea of the Norwegian national identity enables a greater understanding of the bilateral relations in the region, and the ways in which it is governed and conceptualised through political discourse. The Norwegian Arctic It is tempting to make assumptions about the importance of the Arctic in Norwegian political discourse based simply on the number of speeches made by the Ministry of Foreign Affairs (MFA) about the topic. In the first half of 2018, speeches about the High North and the Arctic region were made at least twice every month (MFA, 2018b). Officially, the Arctic has been considered the most important area of priority in Norwegian foreign policy since 2005, with the advent of the High North Initiative (Støre, 2010; Office of the Prime Minister, 2005). While Norwegian policy was naturally concerned with the Arctic before, the policy pertaining to this area was, significantly, described as ‘[p]olicy on Russia (Russlandspolitikk)’ (Jensen, 2017: 121). The comprehensive Norwegian Arctic policy has since been routinely updated and made available in several languages, most recently in 2017. The current document, Norway’s Arctic Strategy: between geopolitics and social development, states that ‘The Government’s vision is for the Arctic to be a peaceful, innovative and sustainable region’ (Office of the Prime Minister, 2017: 9). The text quickly establishes the Arctic as a region with a legitimate Norwegian presence: ‘The Arctic provides both a home and a livelihood for many Norwegians. Some 10% of Norway’s population lives north of the Arctic Circle, a greater proportion than in any other country in the world’ (ibid.: 2). Significantly, however, international cooperation and the authority of international law are also emphasised as important priorities (ibid.: 2). The Norwegian Arctic, the High North, comprises, in purely geographical terms, of ‘[t]he sea and land, including islands and archipelagos, stretching northwards from the southern boundary of Nordland county in Norway and eastwards from the

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Greenland Sea to the Barents Sea and the Pechora Sea’ (Office of the Prime Minister, 2006: 13). This area includes the three northernmost counties of Norway; Nordland, Troms and Finnmark, the domains of the Svalbard archipelago and the island of Jan Mayen (figure 2). The Norwegian territories at sea are also significant; the Norwegian Exclusive Economic Zone (EEZ) extends 200 miles off the coast, while the extended continental shelf covers an additional 235 000 square kilometres (MFA, 2009). If counting these considerable territories at sea, Norway becomes the second largest state in Europe, claiming more than 30 % of the land and sea territories on the continent (Leira et al., 2007: 31). Large portions of these areas are situated in the Arctic, indicating why this region is such a prominent part of Norwegian policy, both foreign and domestic. The geographical space of the Norwegian Arctic is important, not just for the national economy and the local population, but because it can be argued that: ‘There is an unbreakable bond between Norway understood as the Norwegian people, and Norway understood as the Norwegian territory. If the people does not cover the entire territory, Norway will no longer be Norway (…)15 (Hylland and Neumann, 2011: 417) The physical space of the Arctic is symbolically important to ideas of Norwegian national identity. The assertation of Norwegian identity in the geographical spaces of the Arctic are especially important because the Arctic marks the fringes of Norwegian territory and society, and that a strong idea of identity in this region can metaphorically keep these borders in place.

15 ‘Det er et ubrytelige bånd mellom Norge forstått som det norske folk og Norge forstått som det norske territorium. Hvis folket ikke dekker hele territoriet, er Norge ikke lenger Norge (...).’

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Figure 2: Norwegian continental shelf (Norwegian Petroleum Directorate, 2018) The Norwegian national imagination The Arctic has been symbolically important to the articulation of Norwegian identity since the nation-building projects were instigated in the early 19th century. As Norway gained independence from Denmark in 1814, a need arose to define a Norwegian identity that was unique and distinct. The main occupation of the national romanticism that consequently emerged in public discourse and the arts over the next century emphasised the historical existence of the kingdom of Norway. The sea

168 became a focal point for some of these narratives, as a source of traditional Norwegian livelihoods, through fishing, whale and seal hunting, boat building, shipping and navigation. This narrative has been sustained in the present day, as the sea became the source for the resources that funded the modern Norwegian welfare state. To this day, the sea is an arena in which Norway has been able to continue to claim expertise, and the modern Norwegian fleet remains the fifth largest in the world as measured in value (Hagesæther et al., 2018). The cold Arctic waters became central elements in these narrative efforts (Jensen, 2017; Leira et al., 2007). The Arctic seas gave Norway its first points of historical pride, through Viking expansions, significantly to other parts of the Arctic, such as Greenland and Iceland, and eventually the first European discovery of the American continent. These seas have therefore become important symbols of opportunity in the Norwegian national imagination, and as the sea was once the insurmountable frontier, so the Arctic became the new and unexplored wilderness of the 19th and 20th century. Polar exploration has been a vital part of the formulation of Norwegian nationhood (Leira et al., 2007; Medby, 2014). Countless attempts, both successful and not, were made to reach the north and south poles by national heroes such as Fridtjof Nansen and Roald Amundsen. The historical narrative embedded in the Norwegian Arctic is vital to both Norwegian Arctic and national identity. As long as this narrative is sustained through discourse, the Norwegian presence and claims to the Arctic region will remain legitimate for both domestic and international audiences. More obviously, the sea and its resources remains a priority for policy in the Norwegian Arctic, a place where ‘[p]eople are not divided by the ice, but rather joined by the ocean’ (Office of the Prime Minister, 2017: 3). In addition to anchoring a historical national narrative, the Arctic represents several important cultural markers and a ‘[d]eeply rooted Norwegian self-image as champions of the outdoor life’ (Jensen, 2017: 138). The mastering of the harsh climate, cold oceans and snow and ice foster a positive self-identification that is important for national self-esteem: ‘The most attractive national identifications (…) are those that emphasize the alleged distinctiveness and positive qualities, if not superiority of a state and its citizens’ (Lebow, 2016: 3). The idea of the Arctic may therefore also be important to the ontological security of the Norwegian sense of self. Through narratives such as polar exploration the Arctic has historically been framed as the national frontier, and that which separates the Norwegian from the unknown. The frontier ‘[i]s not only an open space beckoning those who seek success, but also the (ever-shifting) boundary between “barbarism” and “civilization” (…). Moreover, the frontier is part of the national mission because it mobilized national energies in accord with Puritan-like renewal’ (Campbell, 1998: 146). The image of the Arctic as the frontier is significant even today, as the age of polar exploration has largely passed, simply because it physically and metaphorically marks the borders of Norway and the Norwegian self. The idea of the frontier also continues to live in the continued exploration of the resources of the ‘[v]irgin territories under the sea bed (…)’ (Jensen, 2017: 138). The assertation of a strong Norwegian Arctic identity is increasingly important in the encounter with what lies beyond this frontier, namely the Arctic ‘other’: Russia. Russia as the constitutive Other As suggested by constructivist theory, identity is constructed ‘[b]y explicit or implicit reference to something it is not’ (Jensen, 2017: 139). The ‘othering’ of Russia has therefore been crucial to the formation of Norwegian Arctic identity (ibid.: 139). The 169 border with Russia in the Arctic marks a distinct end, not only to physical Norwegian territory, but to Norwegian influence and that considered ‘Western’ in a way the border to for instance Sweden does not. The distinctly other is useful however, as states ‘[i]ncluding Norway, use identity politics to mobilize support for their Arctic projects, they face the difficult task of, on the one hand, building a sense of Arcticness among all of their citizens, regardless of ethnicity or region, while, on the other hand, excluding those beyond the state’s borders.’ (Medby, 2014: 253) Russia is therefore cast as the significant other in the region, off which Norwegian identity can be conceptualised and contrasted. As a traditional representative for the global ‘East’, Russia becomes an easy target for the othering from the Western European identity claimed by Norway and put into stark contrast against the Norwegian membership to NATO and alliance with the US. Russia essentially comes to represent that which is ‘non-Norwegian’ in the Arctic. The othering of Russia in Norwegian Arctic identity makes possible the emphasis of another important part of the Norwegian national narrative, namely that of Norway as a ‘peace nation’, a brand that has been heavily projected, through policy and popular discourse especially to foreign audiences (Leira, 2013). The idea of Norway as altruistic is significant because it indicates an idea of moral superiority and exceptionality that impacts the way Norway interacts with other states, and especially those conceptualised as radically different such as Russia. The idea of national exceptionality is not unique to Norway however, as ‘The idea of exceptionalism – that identity is created by being different from all other entities in the same category – is an unavoidable feature of national identity’16 (Hylland and Neumann, 2011: 427). Because Norway has found a ‘way that works’, in a well-functioning democracy and so on, there is a sense that Norway has a moral responsibility to the rest of the world to share this knowledge. Norwegian and Nordic values such as the welfare state, gender equality and environmental sustainability are consequently seen as desirable international exports (Leira et al., 2007: 10). Norwegian values and identity therefore ‘[c]oincide in such a way that Norway serves the common good by following its own interests’17 (ibid.: 9). While the peace nation brand has some basis in a large aid- budget, extensive global development work and diplomatic peace efforts, it may be that the pursuit of these policies continue out of a concern for ontological security as suggested by Steele, and that ‘[N]orway seems likely to persist in the pursuit of a peace policy not because it gives us what we want, but because it confirms us as being who we are’ (Leira, 2013: 353). The moral superiority and perceived exceptionalism that this identity fosters reinforces the difference between Norway and its other, which is seen as less. The idea of Norway as a peace nation is an aspect of national identity that is relevant to Norwegian Arctic discourse because it has consequences for how the country interacts with Russia, and further reinforces a hierarchical relation with the other in the region. Norwegian anxiety over the inherent contradiction in the national image as environmentally sustainable and the inherent dependence on revenue from fossil fuels is pacified by the presence of Russia. This

16 ‘Ideen om eksepsjonalisme – at identiteten hentes fra å være forskjellig fra alle andre enheters i samme kategori – er et uunngåelig trekk ved nasjonal identitet.’ 17 ‘[a]t Norges idealer og interesser sammenfaller slik at Norge tjener allmennytten ved å forfølge sine egeninteresser.’

170 because ‘That Norway is a better friend of the environment than Russia is a broad and largely unquestioned assumption in the Norwegian public sphere’ (ibid.: 448). No matter how bad Norway gets, Russia, as the other, is still ‘worse’. This idea of the other as less civilised, developed or legitimate necessarily affects the bilateral relationship with Russia because it frames Russia as in need of ‘help’. The inequality of this relationship, morally if not physically, shapes the ways in which the relationship to Russia is conducted in Norwegian foreign policy, most especially in the Arctic. The Arctic inhabits a position of great importance to the articulation of Norwegian national identity and national narratives as a physical as well as metaphoric frontier against the significant other, as well as a space in which Norwegians traditionally have and continues to claim unique expertise. Norway is conceptualised not just as an Arctic state, but as an Arctic nation (Medby, 2014). The Arctic is prioritised in Norwegian policy as a place of enormous opportunity and a space which reinforces a sense of what it means to be Norwegian. Foreign policy promotes this notion, as that which ‘[s]eparates the safe inside from the unsafe outside. Drawing on their perspective, we can therefore see Norwegian foreign policy as a form of nation- building on a daily basis’ (Jensen, 2017: 134). The mutually constitutive relationship between policy as discourse and underlying ideas of identity ensures a reinforcing process in which one confirms the other. The overarching narrative of the Norwegian Arctic as historically contingent and legitimate, combined with a heady mix of symbolism creates a sense of national identity and an ‘imagined community’ that seems both natural and given. These ideas of identity are reflected, but also consciously employed in political discourse and policy, as ‘[t]he political discourses employed by the Norwegian government in relation to the Arctic may be highly instrumental in achieving specific goals and generating support, indeed, holding the potential to determine the course of the region’s future development’ (Medby, 2014: 256). The ideas of self projected through foreign policy to both foreign and domestic audiences importantly frames Russia as something other and consequently is significant to how the bilateral relationship with Norway’s arctic neighbour is conducted on an geopolitical scale.

Chapter 4: Norway and the bear – bilateral relations in the Barents Sea Norway and Russia have a long-standing bilateral relationship dating back to the Treaty of Novogrod in 1326, which marked the first attempt to agree on a common border, before its current format was officiated in 1826 (Støre, 2010). The historical relationship has been peaceful, something that is frequently emphasised in political discourse, but is no stranger to political and military tensions. This is why ‘The relationship with Russia ranks above most other concerns in Norway’s High North policy’ (Jensen, 2017: 131). The bilateral relationship to Russia takes precedence in most Norwegian foreign and security policy discourse. As a much smaller nation in both size and military might, Norway has guarded its bilateral relationship with its larger and more powerful neighbour with caution. The relatively small border area of 196 kilometres is the most heavily fortified area in Norway, with a significant presence from the Norwegian Armed Forces (Forsvaret) at all times (Forsvaret, 2018a). In addition to the border on land, the two countries share considerable areas of adjacent territorial waters that both states manage with extensive resources.

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Despite the considerable military threat Russia presents, the Norwegian-Russian relationship consists of a complex constellation of agreements and pragmatic cooperation, many of which concern these areas at sea. This cooperation coexists with geopolitical tensions in a carefully balanced but precarious arrangement, that mainly plays out in the Barents Sea (figure 3). Cold War legacy The precarious bilateral relationship has always been subject to the pressures of geopolitics, despite the Arctic consistently being regarded as an area of low tensions. The main points of contention and conflict in the region are largely derived from geopolitical sympathies and alliances established during the Cold War. The Arctic then became a region in which the opposition between the global East, as represented by the Soviet Union, and the West, as represented by USA and its allies in NATO, became apparent. Norway, spooked by the failed neutrality of World War II, had just assumed its role as one the founding members of NATO, and the Norwegian-Soviet border in the Arctic represented a direct confrontation between the two major global powers. The Kola Peninsula located across the border from Norway was at this point the most heavily militarised area in the world, as it became home to the Russian Northern Fleet, as well as an important base for the Soviet nuclear programme (Jensen, 2017; Sergunin and Konyshev, 2014). The Cold War Arctic was thus a region ‘[m]arked by the risk of confrontation between the major powers’ (MFA, 2011: 21). While the stark divide of the Cold War-era has faded, the direct encounter between the east and the west is a part of what makes the Arctic Barents rents region an interesting area for analysis.

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Figure 3: Barents Sea (Fritdjof Nansen Institute, 2017)

While the constellations of the Cold War put pressure on Norway to maintain a relationship to the Soviet Union befitting a NATO member, the creation of the Law of the Sea did important work to delimitate territories at sea between Norway and Soviet, paving way for pragmatic cooperation on matters such as fishing regulations (MFA, 2011: 21). In addition to working-level cooperative projects, the provocative NATO-membership was managed by the Norwegians by enforcing ‘[a] number of self-imposed restrictions’ (Jensen, 2017, 127). These restrictions were intended to stop Russia from interpreting Norwegian activities along the border as aggressive. Norwegian Arctic policy in the immediate aftermath of the Cold War was conspicuously free from articulations of the Arctic, perhaps in fear of reinstating old tensions. Norwegian policy in the 1990s therefore ‘[w]as mainly about bringing Russia into committing collaborative networks’ (Jensen, 2017: 130). In 2005 however, the Norwegian Government again articulated an Arctic strategy, and the High North was once again the number one foreign policy priority (Støre, 2010). This was notably before the infamous Russian flag-planting of 2007, which has been lauded as the starting point for the Arctic ‘race’, but which has been insignificant in this bilateral relation. Until 2010, the bilateral relationship between Norway and Russia was dominated by a disagreement about the delimitation of the Barents Sea, as the two countries continued to claim overlapping territories. In September of 2010 however, an agreement was signed between the two countries agreeing on an equal split of the contested area, ending a 40-year conflict (MFA, 2010a). The agreement was lauded as a victory for peaceful process and bilateral cooperation at its highest level (Støre, 2010; MFA, 2010b). This disagreement had by many been seen as ‘[t]he most serious obstacle to the bilateral cooperation (…)’ (Sergunin and Konyshez 2014: 81). In the post-Cold War era, the Arctic region has otherwise been a region of relatively little conflict, conceptualised through the government catchphrase ‘High North – low tension’ (MFA, 2011: 21). Dualistic presence The simultaneous cooperation and political tension in the Barents region is symbolic of the contradictory position Russia holds in Norwegian political discourse, as both the most significant threat to national security, and a fellow Arctic state. From the Russian perspective, the Barents region, and especially the areas surrounding the Kola Peninsula: ‘[w]ere, and still are, considered a military area of special importance to Russia’s security. Several conditions, such as direct access to the Atlantic Ocean and the Arctic, in relatively close proximity to potential targets, and an array of important elements of defence industry and infrastructure, make the area well suited for strategic naval operations.’ (Sergunin and Konyshez 2014: 74) Norwegian concern for Russia’s considerable military capabilities and for the possibility of open conflict take precedence in domestic defence and security politics. The Norwegian Policy Security Service (PST), sees Russia as the most viable threat to Norwegian security in their threat assessment of 2018, stating that

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‘Norwegian alliance commitments and Norway’s strategic position in the north and in the Arctic are fundamental motives for foreign intelligence efforts in Norway. The strained security relationship between Russia and the West creates a need for intelligence on the installations, conduct and personnel of the Norwegian Armed Forces.’18 (PST, 2018) The Norwegian Intelligence Service (Etterretningstjenesten) further emphasises that ‘Russia is increasingly framing NATO as a threat to Russian interests in the Arctic’19 (Etterretningstjenesten, 2018). As a direct result of the Russian presence in the Barents region, the north of Norway hosts the most significant strongholds for the Norwegian Armed Forces. Despite popular narratives, it may be suggested that it is a ‘[c]oncern for Norway’s neighbour Russia, and not the changing Arctic have triggered Norwegian investments in war-fighting capabilities stationed in the Arctic’ (Hilde 2013: 132). As emphasised by the intelligence and security services, it is especially the Norwegian commitment to NATO, the country’s most important security guarantee that creates tensions in the bilateral relationship. This has been especially true since the 2014 Russian annexation of Crimea, which was condemned by Norway and the West at large (Søreide 2014; MFA 2014). As the international community imposed severe sanctions on Russia, ‘This had an impact on cooperation with Russia in the Arctic, as meetings to discuss northern security affairs were postponed and military activity in the north came under new scrutiny’ (Østhagen 2014: 89). The heightened tensions meant that ‘NATO’s military exercises in the immediate proximity of Russian borders, however small in scale are observed and commented on with profound suspicion. The Arctic coastal states’ armed forced modernization programmes are predominantly treated in the alarmist way’ (Sergunin and Konyshez 2014: 75). The alarmist interpretations from both sides creates an Arctic prisoner’s dilemma: ‘We are in a situation where both parties’ wish to deter the other is about to create conditions that threaten the security of all’20 (Wilhelmsen and Gjerde, 2018). While Norway is afraid of a Russian attack as part of a larger campaign against NATO or Norwegian territories in the Arctic, the Russians ‘[a]re concerned that their Arctic Ocean neighbours, who also happen to be NATO allies, intend to take control of natural resources and/or shipping lanes rightfully belonging to the Russian Federation’ (Åtland, 2014: 150). It has been theorised that Russia sees itself in a constant state of threat from the outside world, and ‘Russia’s understanding of foreign relations as a zero-sum game, where energy takes centre stage, is at odds with Norwegian sentiments, where mutual gains are seen to be within reach in international relations’ (Jensen and Skedsmo, 2010: 445). The perceived Russian approach creates anxiety in Norwegian policy, as it seems radically at odds with Norwegian expectations of eventual friendly relations. David and Goliath

18 ‘Norske allianseforpliktelser og Norges strategiske beliggenhet mot nordområdene og Arktis er grunnleggende motiver for etterretningsvirksomhet mot Norge. Det anstrengte sikkerhetspolitiske forholdet mellom Russland og Vesten skaper behov for etterretning om det norske forsvarets installasjoner, virksomheter og personell.’

19 ‘Russland framhevar i aukande grad at NATO representerer ein trussel mot russiske interesser i Arktis.’

20 ‘Vi er inne i en situasjon der begge parters ønske om å avskrekke den andre er i ferd med å skape betingelser for at vår alles sikkerhet er truet.’ 174

The fundamental problem in the Norwegian-Russian relation is the inherently unequal relationship of traditional hard power, where the Norwegian Armed forces are incapable of exercising force on Russia. This creates a dependency on the alliance structures of NATO. The NATO security guarantee however, hinges on the involvement of the US, a country traditionally at odds with Russia. Norwegian military action is therefore easily seen as indicative of an American threat. It is therefore likely that ‘[i]f Russia should become a threat to Norway it is not really about Norway. Norway is exposed because it may become the country in between Russia and the US’21 (Wilhelmsen, 2017). Ironically, NATO has until recently lacked a specific Arctic security strategy (Boulege, 2018). This sparks Norwegian debate about the cost of the American security guarantee for the bilateral relationship (Wilhelmsen and Gjerde, 2018; MFA, 2018). Controversially therefore, Norway will play host to the largest NATO exercise since 2002, involving more than 40 000 NATO troops in November of 2018 (Forsvaret, 2018; Raji, 2018) In what is believed to be a counter- reaction to the NATO exercise, Russia, in September 2018 hosted their most extensive wargames since the Cold War (BBC, 2018b). Significantly however, none of these exercises take place in the European Arctic. Contrary to the importance of Arctic issues in Norwegian political discourse, these are not prioritised in Russia (Jensen and Skedsmo, 2010). The most important priority in Russia is the access to resources in the Barents Sea, as the Arctic is not economically insignificant: ‘Having 1% of the country’s population Arctic Russia is already responsible for 11% of the Russian gross domestic product and 22% of its export earnings’ (Sergunin and Konyshev, 2014: 72). Economic concerns and exploitation of the economic potential of the Northern Sea Route takes top priority and directs investments to the north (Oseland and Raspotnik, 2018). The Russian Arctic does not occupy its own space in policy but is rather a part of other politics and not, as in Norway, a part of a powerful public discourse on identity and belonging: ‘A central implication of this is that Russia’s approach to the Arctic could perhaps be said to be more functional and ad hoc than Norway’s more holistic and all-inclusive approach’ (Jensen and Skedsmo, 2010: 447). Despite militarisation, major exercises and opposing perspectives, many suggest that the idea of an arms race in the Arctic is exaggerated, and that a prisoner’s dilemma not necessarily equates insecurity (Åtland, 2014). While military activity has increased in the region, it is nowhere near as high as it was during the Cold War. Some even suggest that the increased Russian expansion and militarisation may simply be a result of modernisation and, ‘[w]ill be grounded in Russia’s strategic interests and great power status. In this perspective, the presence of the forces in the Arctic is coincidental’ (Hilde, 2013: 143). Officially, the Norwegian policy in regards to Russia is one based on the desire for cooperation. In a speech made in London in May 2018, Norwegian Prime Minister Erna Solberg noted that ‘[w]e do not consider Russia’s military posturing to be a direct threat to Norway. Most of its military activity in our immediate proximity is strategic. It is more a question of Russian force projection’ (Solberg, 2018). Ultimately, ‘The Norwegian model is to deter and defend on one hand, and to ensure dialogue and engagement in areas of common interest on the other’ (ibid.).

21 ‘[d]ersom Russland skulle komme til å utgjøre en trussel mot Norge er det egentlig ikke Norge det dreier seg om. Norge er utsatt fordi det kan komme til å bli landet mellom USA og Russland.’

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Svalbard The only conflict that is based solely in the Norwegian-Russian bilateral relation is the disagreements about Svalbard. Svalbard was made a part of the Kingdom of Norway in the Svalbard Treaty from 1920 (Sysselmannen, 2018). The treaty gave Norway the right to exercise sovereignty on the island but had important exceptions that made it possible for all signatories to extract resources in the area (Sysselmannen, 2016). While the treaty applies to the territories of Svalbard on land, there is disagreement about the status of the territory at sea, which Norway claims as an EEZ and therefore not part of the Treaty (Ministry of Justice and Public Security, 2016). Despite this claim however, ‘[R]ussia – amongst others – claims that the principles of the Treaty should apply to the 200-mile zone as well, thereby granting all signatories equal right to economic activity in the water column’ (Østhagen 2014: 85). There is therefore significant disagreement about the rights to these vast areas of Arctic sea, that are home to important cod stocks and other resources. Russia has explicitly linked Norwegian policy on Svalbard as a potential risk of war, indicating the felt strain on the relationship over this issue (Nilsen, 2017). Consequently ‘The risk of events spiralling out of control in the FPZ remains a primary concern for both the Norwegian Coast Guard and the Norwegian Ministry of Defence. Echoing these fears, in 2017 the Russian Defence Ministry deemed Svalbard a potential area for future conflict with Norway, and in consequence NATO’ (Østhagen, 2018: p.101). Ironically, Svalbard is also a physical manifestation of the ability of Russians and Norwegians to coexist. As is their right according to the Svalbard Treaty, Russia has a significant presence on Svalbard in the mining town of Barentsburg. Russia as collaborative partner While being the most significant threat to Norwegian security, Russia is also considered an important partner and fellow Arctic nation. While Russia has been framed as the most significant other to Norwegian Arctic identity, Russia is also recognised as a part of the Arctic ‘us’. Russia may be an adversary in some dimensions of the bilateral relationship, but the two countries are ultimately Arctic states with a mutual aversion to interference in the region by external actors. This is what makes the pragmatic cooperation on an everyday basis possible. While there has been examples of potential conflict, where both governments have reacted strongly to breaches of unofficial ‘gentlemen’s agreements’ in areas such as fishing regulations, both governments have scaled down their reactions to these incidents, despite having no official agreement in place (Åtland and Bruunsgaard, 2009; Baev, 2005). The occasionally contradictory and dualistic Norwegian approach to Russia is a ‘[f]oreign policy discourse that seems to be as much about getting the attention and backing of friends and allies, as it is about minimizing meddling in the sphere of Norwegian interest. The aim seems to be to leave as much room for manoeuvring as possible’ (Jensen and Skedsmo 447). It is fair to conclude therefore that ‘Neighbour relations between Norway and Russia are thus defined by having the ability to do two things at once: upholding territorial integrity and protecting sovereign rights, while also maintaining civil relations and engaging in cooperative local and regional schemes’ (Østhagen, 2014: 92). The current problem is that while fisheries regulations and the like are matters in which Norway and Russia have traditionally been able to cooperate, these issues are in the contemporary geopolitical climate imbued with the symbolic elements of identity discourse. When these pragmatic issues become subject to the discourse of international politics, there are ‘[a]ctors who benefit from infusing it with intangible 176 dimensions such as “national pride” and “being cheated from what is ours”’ (Østhagen, 2018: 115). With this additional symbolism, these matters have the potential to escalate much further than they would have without it. This may be due to a sudden and difficult overlap of different aspects of Norwegian identity, as the identification as NATO member has become vital in a region where the emphasis was traditionally placed on the lack of international interference and Arctic stewardship. Norwegian identification as a strong adherer to the systems of international law will also have made ignoring the annexation of Crimea impossible: ‘Russia’s actions in Ukraine have forced many Arctic countries to re-evaluate their cooperation with Russia, including in the Arctic region’ (Klimenko 2014: 13). International politics and relations have once again become a part of Arctic policy. The question is whether the international politics will be allowed to override the duality of the Norwegian-Russian relationship that has so far allowed to balance out in the Arctic, or whether cooperation will be held hostage by events far beyond the region (ibid.).

Chapter 5: Cooperation and conflict with the Other Lodged deeply in Arctic discourse and policy, the bilateral relationship between Norway and Russia, which is primarily expressed in this region, proves an interesting case in which to examine the relation between identity and bilateral conduct. This is especially true when considering the dualistic and contradictory position Russia inhabits in the Norwegian discursive imagination. As both a fellow Arctic state and the most significant other against which Norwegian Arctic identity is defined, this is an interesting relation in which to examine the ways in which a bilateral relationship is articulated as cooperative and conflicting by the use of identity-based discursive efforts. It must, from the outset, be emphasised that despite major difference on a geopolitical level, extensive cooperation has and is taking place between Norway and Russia in the Arctic. This is especially apparent in the everyday administration of the shared border areas on land and at sea in the Barents region. Here, the constabulary presence of respective coast guards, regulation of illegal and unregistered fishing and coordination of emergency response efforts at sea, as well as communication between military commands along the land border are results of long-standing agreements that require little political interference to function. In line with this, cooperation with Russia is actively promoted by the Norwegian government in Arctic policy: ‘Norway and Russia have many common interests as Arctic coastal states, not least the responsible management of the environment, the natural resources and common fish stocks in the Barents Sea. Our ambition is therefore to advance this cooperation where our interests align’22 (MFA, 2016). Cooperation between international actors creates predictability in international relations, as it provides frameworks of experience as well as institutional arrangements that may help determine future actions. Cooperation is therefore in most cases the preferred option in inter-state relations as it causes less anxiety about the security and survival of the polity, which is often regarded as the primary goal of states. This survival is not only physical; it also entails the ontological security of the

22 ‘Norge og Russland har mange felles interesser som arktiske kyststater, ikke minst forsvarlig forvaltning av miljøet, naturressursene og felles fiskeribestander i Barentshavet. Vår ambisjon er derfor å videreføre samarbeidet med Russland der vi har felles interesser.’

177 self, which may be confirmed, strengthened and protected in cooperation and alliance (Berenskoetter, 2014). Identity has a direct impact on who are seen as attractive partners for cooperation and what partners will be able to ensure ontological security. In choosing their cooperative partners, it has been seen that states prefer to align themselves with partners of similar values: ‘[s]tates will usually prefer to ally with governments whose political outlook is similar to their own and similar regimes may be willing to support each other simply because they believe that doing so contributes to promoting certain intrinsic goods (…)’ (Walt, 1997: 168). This kind of alliance creates a sense of ‘ideological solidarity’. In Norway’s case, the similarity of identity may be seen as instrumental in the country’s relationship to Sweden, Scandinavia and the other Nordics (Medby, 2014). Alliances with the like-minded are preferred because the two parties ‘[n]ot only positively recognise each other’s narratives, they also strengthen them by making productive use of their overlapping experienced space and link it to a shared futures’ (Berenskoetter, 2014: 8). It is seen that similar identities eases the cooperative process. Importantly, however, states do not have to be ‘friends’ to function in an alliance. The structures of an institutionalised alliance may contribute to shifting internal priorities. Incorporation into these institutions may be transformative because it means ‘[i]nternalizing new understandings of self and other, of acquiring new role identities, not just of creating external constraints on the behaviour of exogenously constituted actors’ (Wendt, 1992: 417). A cooperative relationship may shape fundamental ideas of identity, or at least ensure that the compatible interests are emphasised. Rather than suggesting that cooperation requires equal identities between parties therefore, it may be proposed that cooperation is the result of similar interests, which are born out of identities but do not necessarily reflect them in their entirety. Furthermore, completely overlapping identities do not necessarily ensure ontological security, and so it must be possible to suggest that cooperation despite different identities may not necessarily mean ontological insecurity (Berenskoetter, 2014). If similar interests are fundamental for cooperation, conflict may be defined as the encounter between interests that do not match. Conflict therefore emerges when ‘[a]n event or an incident brings the incompatible interest between actors to the agenda’ (Østhagen, 2018: 103). It is only when these incompatible interests become relevant to the agenda that they cause a problem, proving that states with conflicting interests can cooperate and coexist as long as relevant interests align. The sustained cooperation between Norway and Russia in the Barents Sea may therefore have been possible because this relationship reflects a common interest in upholding the order and administration of the region, and that these interests were the only relevant interests for these particular agreements (ibid.: 113). Significantly, these cooperative frameworks have remained stable and operational despite the geopolitical tensions between the two countries. As a result of the Russian annexation of Crimea in 2014, the Norwegian-Russian bilateral relationship was complicated by international pressures to a greater degree than it previously had been in the post-Cold War era. Norway condemned Russian actions: ‘Norway stands with the rest of Europe and other allies in the defence of international law and international standards in the encounter with Russian actions in Ukraine. Respect for the international law of the sea and international cooperation

178 contributes to stability and predictability in the north’23 (MFA, 2016). While the pragmatic bilateral cooperation has largely remained in place, however, some argue that this kind of cooperation primarily belongs in the realm of low politics. While an arbitrary distinction, it suggests ‘[a] hierarchy, as some policy issues undoubtedly receive more attention that others by policy makers’ (Østhagen, 2014: 91). It follows that while low-level cooperation may be executed seamlessly, the bulk of political attention will be focused on disagreements on higher levels of politics between international actors on a global scale. The increased attention ultimately means that conflict in this realm is of greater importance to the bilateral relationship as a whole, though the administrative, pragmatic cooperation naturally forms an important foundation for positive relations. This indicates that conflict in some areas does not equal an entirely hostile relationship, but that cooperation and conflict in some aspects of the relationship may be more important than other. Pragmatic cooperation on enforcement of fishing regulations does not necessarily guarantee physical security or sovereignty in the Arctic region. It also follows that cooperation and conflict are not mutually exclusive. That conflict and cooperation are not mutually exclusive indicates that the two states may be interdependent. Several scholars argue that cooperation is a product of discord, and that argument and disagreement is important for cooperative relationships (Østhagen, 2018; Heninen, 2011). This because arguing ‘[f]urthers our understanding of how actors develop a common knowledge concerning both a definition of the situation and an agreement about the underlying “rules of the game” that enable them to engage in strategic bargaining in the first place. Thus, arguing constitutes a necessary (though not sufficient) step in a negotiating process.’ (Risse, 2000: 2) Some therefore suggest that conflict can be a productive part of inter-state relations: ‘[c]ooperation includes competition, and competition is not determined to signal potential “conflict”, and disputes or disagreements do not necessarily lead to open hostility’ (Heininen, 2011: 34). All states have conflicting interests, but these need not be a part of the mutual agenda. Disagreement may be a reassuring signal that states, despite compromising on certain issues, are able to retain their fundamental values and identities. It has been established that similar identities are not necessary for cooperation: ‘Although it is tempting to assert that similarity breeds cooperation, it is impossible to make such an a priori claim’ (Hopf, 1998: 193). States may disagree and still cooperate. It can be suggested however that the cooperation possible as long as fundamental ideas of identity are in conflict is limited to the ‘shallow’ issues of low politics, as the matters of high politics: international allegiance, adherence to international law and humanitarian issues, take precedence. These matters are also tied to deeper and fundamental ideas of identity, as seen in Norwegian reactions to events in Crimea. While different identities may cooperate as long as similar interests align, a more holistic cooperative bilateral relationship is difficult when the fundamental identities are so different that they come to be seen as essentially other.

23 ‘Norge står sammen med resten av Europa og andre allierte i forsvaret av folkeretten og internasjonale kjøreregler i møte med Russlands opptreden i Ukraina. Respekt for havretten og internasjonalt samarbeid bidrar til stabilitet og forutsigbarhet i nord.’

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In this vein it may be argued that the main obstacle for a comprehensive Norwegian- Russian cooperation in the Arctic is the established Norwegian idea of Russia as the radical other of the region that has become so fundamental to Norwegian Arctic identity. As has been seen, the mere presence of an ‘other’ constitutes an ontological threat to security, as it represents an alternative to the established order and existence of the self. Ironically, the presence of the other is also necessary to the survival of the state, as it would lose its purpose without it: ‘The constant articulation of danger through foreign policy is thus not a threat to a state’s identity or existence: it is its condition of possibility’ (Campbell, 1998: 13). Russia is the largest representative of this alternative threat in the Arctic region and forms a natural contrast to Norwegian Arctic identity. The other is articulated as inherently different from the self (Janmohamed, 1985). While framed as a negative presence in ontology, the other does not have to be an enemy. The other ‘[d]oes not have to be morally evil, he does not have to be aesthetically ugly, he does not have to appear as an economic competitor, and it can (…) even be advantageous to have business dealings with him’ (Schmitt quoted in Neumann 1996: 147). Though of course, while ‘[i]t has been argued that the representation of difference does not functionally necessitate a negative figuration, it has historically more often than not been the case (…)’ (Campbell, 1998: 88). Negative perceptions of the other are generally not conducive to cooperation, and the ontological threat that Russia represents makes justifications for cooperation in policy inherently difficult. For cooperation to be possible on all levels of the bilateral relationship it seems certain parts of foundational identity must be rearticulated or changed. The overarching national narrative must be made to accommodate the notion of Russia as a cooperative Arctic partner, also in the realm of high politics. Cooperation with the other is, as proven by the current Norwegian-Russian relationship, not inherently impossible. In some cases, having framed Russia as an ‘other’ may even be an incentive from the Norwegian perspective. This is especially true when the idea of Norway as an altruistic nation is evoked through policy, wherein Norway is able to ‘help’ the less capable (Østhagen, 2018). The relationship to the other is an inherently unequal one, something that quickly translates into policy that may seem condescending from a different perspective. Some argue that this unequal relationship is present in the frameworks for cooperation in the Barents region, which according to some ‘[e]merges as a kind of developmental aid (…)’24 (Hylland and Neumann, 2011: 429). Attempts to include Russia as an equal partner in the region have been made, but the structures within which this is done are fraught with these notions, and ‘[t]he very structure of regional co-operation thus tends to employ Russia as the one in need of assistance and as “the problem to be solved”’ (Browning, 2003: 57). While cooperation under these premises may be possible, it is unsustainable. The driving actors behind these efforts ‘[h]ave been insufficiently aware of the way in which the discourses they have told have in fact re-inscribed that which they sought to transform’ (ibid.: 65). Changes in ideas of ‘self’ rather than ideas of the ‘other’ need to happen for comprehensive and mutually beneficial cooperation to take place. Importantly, this casting of Russia ‘[s]tands in sharp contradiction with Russian self- images of Russia as a great power’ (Browning, 2003: 58). The ideas of Russia as less capable resonates well with the Russian national narrative of the West as imperialist and inherently hostile, something that contributes to deepening the divide between

24 ‘Barentssamarbeidet fremstår som en variant av utviklingshjelp (…)’ 180 these fronts. Russian identity is necessarily also in need of a relational ‘other’, and while Norway is not significant enough to play this part alone, Norway is part of the Western establishment which can serve this purpose. Like in Norway, the domestic identity narrative portrays Russia as superior, desirable and incorruptible. The public Westerns articulations of Russia as an enemy of liberal values further confirm a Russian narrative of a hostile international community(Persson, 2014). It is evident that mutual adjustment of ideas of identity from both sides is needed in order to establish sustainable and lasting cooperation on all levels between Norway and Russia. Coincidentally, identities are not static and unmoving, but dynamic and evolving. Constructivist theorise that ‘The fact that roles are “taken” means that, in principle, actors always have a capacity (…) for engaging in critical self-reflection and choices designed to bring about change in their lives’ (Wendt, 1992: 419). And if identity can be changed so can foreign policy, as discourse which emerges out of these ideas. It follows that Norwegian political discourse, as based on fundamental ideas of Arctic identity could be employed to alter the ways in which Russia is conceptualised through policy. While Russia is likely to remain an ‘other’ by virtue of being distinctly non-Norwegian, and this relationship is inherently hierarchical, ‘[t]he relationship between them is never completely fixed or immutable’ (Jensen, 2017: 133). Constructivist theories suggest that fundamental ideas of identity can be changed through interaction, as it is in intersubjective relationships that meaning is first created: ‘The power of practice is the power to produce intersubjective meaning within a social structure’ (Hopf, 1998: 179). Furthermore, ‘If we theorize Norwegian identity as constructed through discourse, and Norwegian policy as dependent on such discourse, it follows that there are no objective Norwegian national identities located outside discourse’ (Jensen, 2017: 133). Changes in identity can be brought forth by conscious re-articulations in the political and cultural discourse. Re-articulation of the position Russia holds in the Norwegian, and Western imagination is especially important following the events in Ukraine, after which ‘Russia has become an aggressive expansionist and illegitimate power in the eyes of the West. The West and NATO are portrayed as the morally superior redemption of Russia’25 (Wilhelmsen, 2017). These ideas further alienate Russia and its perpetuation through discourse ‘has contributed to Russia’s perception of the West as a threat and of itself as a disgraced great power’26 (Wilhelmsen, 2017). Norway inhabits a useful position in both the metaphorical and physical ‘in-between’ that could be used to initiate a process of re-articulation that could benefit Norwegian- Russian relationship. This, however, is not to suggest that this re-articulation should be initiated while ignoring the international law violations that gave rise to this conflict in the first place. It is rather to emphasise that an understanding of the underlying structures of identity may be the only way to understand Russian actions in and outside of the Arctic region, and to create sustainable frameworks for mutual cooperation in the future. Norwegian-Russian relations are, despite being portrayed as separate from, deeply entrenched in geopolitical relations. The degree of violation Russia conducted in their invasion of Crimea may have been seen as radically incompatible with fundamental ideas of Norway as a member of the organised international community and strong adherents to the systems of international law. Despite this, both parties continue to share an interest for low tensions in the Arctic

25 ‘Russland har blitt en aggressive ekspansjonistisk og illegitim makt i Vestens øyne. Vesten og NATO fremstilles som det moralsk høyverdige bolverket mot Russland.’

26 ‘[h]ar bidratt til at Russland ser på Vesten som en trussel og seg selv som en forsmådd stormakt.’ 181 region. The disagreements over Crimea may have to be solved in the current and existing framework of identity before complete and mutual re-articulation is possible. Changing fundamental ideas of identity to enable cooperation will not be possible without mutual effort, and it cannot happen without attention to the discursive practices of the other: ‘In order to change the self, then, it is often necessary to change the identities and interests of the others that help sustain those systems of interaction’ (Wendt, 1992: 421). It must be emphasised that Norway has limited influence over Russia, despite significant soft power, and cooperation between the two is therefore dependent on mutual effort. Old identities remain in institutions and forged patterns of behaviour, and so changing the self’s identity and policy is risky behaviour, as it will have to be assumed that the other party also wishes this change. For the established pattern to cease perpetuating itself, actors must choose to break away despite security risk. The Arctic is interesting because it provides a unique and mutually recognised status as ‘Arctic’ for both Norway and Russia. This Arctic identity must be further emphasised in policy and political discourse in order to create a framework where interests are allowed to align. The socialisation that is already happening between the two nations is important, because it creates a foundation for further cooperation and may contribute to trust-building: ‘The argument put forth is that from a Norwegian perspective, Norwegian and Russian cooperation is based on both mutual interests and the socializing effects of cooperative mechanisms, which in turn are key to avoid escalation in crisis-scenarios’ Østhagen, 2018: 102). Cooperation with Russia could ultimately be ontologically beneficial, as it confirms Norwegian identity as an international actor that promotes a peaceful international community. An understanding of the way that these identities are formed, what they look like, and how they shape discourse and vice versa is integral to understanding state conduct, as well as assessing the ways in which cooperation can be strengthened or initiated.

Conclusion: Most Things Are North In this dissertation, it has been seen that understanding the inextricable link between national identity and political discourse is absolutely essential to understanding of the behaviour of states. This is especially apparent in the Arctic region, which until recently was conceptualised as a stable but remote outpost, but which now, as the dramatic effects of climate change create new opportunities and challenges, finds itself at the centre of an international scramble for rights to ownership, territories and resources. While the intensity of this rush may be exaggerated, the changes in the region have intensified efforts to assert Arctic belonging. This is especially true for the already established Arctic states, desperate not to lose their position as rightful authorities on Arctic issues in a region that is becoming increasingly international. Norway, as one of these Arctic states, has been seen to consciously employ narratives of national identity, historical belonging and expertise as expressed through foreign policy in order to legitimise their position in the north. In the country’s position next to the Artic giant Russia, these ideas of identity are especially important, as they contribute to the conceptualisation of Russia as ‘other’ and consequently strengthen the metaphorical and physical boundaries of Norwegian Arctic identity. Due to the mutually constitutive relationship between identity and discourse, Norwegian foreign policy in the Arctic becomes as important to the creation of identity, as identity becomes to the creation of foreign policy. 182

An unfortunate consequence of identity constructed in relation to the other is that cooperation with Russia has been made, if not impossible, more difficult. This complicates the bilateral relationship in the Arctic. While it has been proven that states do not need identical or even compatible identities to cooperate, interests must align. In the Norwegian-Russian relationship, this is the true for pragmatic issues such as fisheries regulation and border administration, but is difficult in the realm of high politics. The realm of high politics is given greater attention and is a more important sphere for the exercise of national identity narratives. This makes cooperation in high politics more fragile to that which is ontologically threatening. The Arctic is increasingly subject to the pressures of geopolitical events, as a meeting place between Russia and the US-led NATO-alliance. This and international events such as the 2014 Russian annexation of Crimea puts pressures on fundamental ideas of Norwegian identity as a strong adherent of international law and governance, and makes comprehensive high-level cooperation increasingly incompatible with considerations of ontological security. As identity is shown to be a relational concept that is changed through inter-subjective interaction, fundamental ideas of identity could be altered to make bilateral cooperation with Russia in the Arctic possible. This, however, would require mutual adjustments, as well as a reconciliation with external geopolitical events. Ultimately a comprehensive cooperation on all levels of politics between Norway and Russia in the Arctic will be challenging, and would require mutual policy action along with adjustments of fundamental identity narratives. While this is not a unique situation in a bilateral relationship, the Arctic region significantly lacks the institutional security architecture to tackle issues of hard security, which means that there are few forums in which different approaches to these issues can be tried and tested without significant consequences. The changing nature of the Arctic and Arctic governance may provide opportunity as well as necessity for the formation of such institutional architecture, perhaps by expanding the status of the existing Arctic Council. Providing a solution to the fundamental discord at work in parts of the Norwegian-Russian bilateral relationship in the Arctic would require a holistic analysis that also included the Russian dimension of the relation. Understanding the identity that lies at the basis for Norwegian state interest and foreign policy however, provides one piece of the mystery of state behaviour. Identity forms the very basis for discourse and understanding the formation of this basis: what it entails, what it is, and importantly what it is not, will enable a more nuanced understanding of international relations, also in the Arctic.

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Bibliography: Government issued documents, speeches and statements: Etteretningstjenesten [Norwegian Intelligence Service] (2018) ‘Russland’ URL: https://forsvaret.no/fakta/undersokelser-og-rapporter/fokus2018/russland [Accessed: 30.08.2018] Forsvaret [Norwegian Armed Forces] (2018a) ‘Garnisonen i Sør-Varanger [The Garrison in South Varanger]’ URL: https://forsvaret.no/fakta/organisasjon/Haeren/Garnisonen-i-Soer-Varanger [Accessed: 31.08.2018] Forsvaret [Norwegian Armed Forces] (2018b) ‘Trident Juncture 18’ URL: https://forsvaret.no/exercise [Accessed: 31.08.2018] Ministry of Foreign Affairs (2009) ‘Continental shelf – questions and answers’ URL: https://www.regjeringen.no/en/topics/foreign-affairs/international- law/continental-shelf--questions-and-answers/id448309/ [Accessed: 08.09.2018] Ministry of Foreign Affairs (2010a) ‘Treaty between the Kingdom of Norway and the Russian Federation concerning Maritime Delimitation and Cooperation in the Barents Sea and the Arctic Ocean’ URL: https://www.regjeringen.no/globalassets/upload/ud/vedlegg/folkerett/avtale_engel sk.pdf [Accessed: 31.08.2018[ Ministry of Foreign Affairs (2010 b) ‘Enighet mellom Norge of Russland i delelinjeforhandlingene [Agreement between Norway and Russia in the negotiations on delimitation]’ Press release. URL: https://www.regjeringen.no/no/aktuelt/delelinje/id601942/ [Accessed: 31.08.2018] Ministry of Foreign Affairs (2011) ‘The High North – Visions and strategies’ URL: https://www.regjeringen.no/globalassets/upload/ud/vedlegg/nordomradene/ud_no rdomrodene_en_web.pdf [Accessed: 31.08.2018] Ministry of Foreign Affairs (2014) ‘Crimea referendum illegal and illegitimate’ URL: https://www.regjeringen.no/en/aktuelt/illegal_referendum/id753120/ [Accessed: 14.08.2018] Ministry of Foreign Affairs (2016) ‘Nordområdene i endring [The Changing High North]’ URL: https://www.regjeringen.no/no/tema/nordomradene/intro_nord/id2483584/ [Accessed: 10.09.2018] Ministry of Foreign Affairs (2018) ‘En balansert sikkerhetspolitikk [Balanced security politics]’ Opinion piece, July 9. URL: https://www.regjeringen.no/no/aktuelt/balansert_sikkerhetspolitikk/id2607108/ [Accessed: 15.08.2018] Ministry of Foreign Affairs (2018b) Speech Archives Search. URL: https://www.regjeringen.no/no/aktuelt/taler_artikler/id1334/?from=01.01.2018&to =31.12.2018&topic=1154 [Accessed: 29.08.2018] 184

Ministry of Justice and Public Security (2016) ‘Svalbard - Meld. St. 32 (2015-2016) Report to the Storting (white paper)’ URL: https://www.regjeringen.no/en/dokumenter/meld.-st.-32- 20152016/id2499962/sec1 [Accessed: 09.09.2018]

Office of the Prime Minister (2005) The Soria Moria declaration on international policy. URL: https://www.regjeringen.no/en/dokumenter/the-soria-moria- declaration-on-internati/id438515/ [Accessed: 14.08.2018] Office of the Prime Minister (2006) The Norwegian Government’s High North Strategy. URL: https://www.regjeringen.no/globalassets/upload/ud/vedlegg/strategien.pdf [Accessed: 21.08.2018] Office of the Prime Minister (2017) Norway’s Arctic Strategy: Between geopolitics and social development. URL: https://www.regjeringen.no/contentassets/fad46f0404e14b2a9b551ca7359c1000/ar ctic-strategy.pdf [Accessed: 29.08.2018] PST [Police Security Service] (2018) ‘Trusselvurdering 2018 [Threat Assessment 2018]’ URL: https://www.pst.no/trusselvurdering-2018/ [Accessed: 30.08.2018] Solberg, E. (2018)’Security policy challenges facing Norway and Europe today’ Speech at RUSI, May 6. URL: https://www.regjeringen.no/en/aktuelt/security- policy-challenges-facing-norway-and-europe-today/id2603739/ [Accessed: 14.08.0218] Støre, J. G. (2010) ‘Det meste er nord – Nordområdene og veien videre – et internasjonalt perspektiv [Most things are north – the High North and the road ahead – an international perspective]’ Lecture at the University of Tromsø, April 29. URL: https://www.regjeringen.no/no/aktuelt/nord_mest/id602113/ [Accessed: 14.08.2018] Sysselmannen Svalbard (2016) The Svalbard Treaty. Governor of Svalbard. URL: https://www.sysselmannen.no/en/Toppmeny/About-Svalbard/Laws-and- regulations/Svalbard-Treaty/ [Accessed: 31.08.2018] Sysselmannen Svalbard (2018) The Svalbard Treaty: Treaty Document. Governor of Svalbard. URL: https://www.sysselmannen.no/globalassets/sysselmannen- dokument/english/legacy/the_svalbard_treaty_9ssfy.pdf [Accessed: 31.08.2018] Søreide, I. E. (2014) ‘Norway, NATO and the Crisis in Ukraine’ Speech at Chatham House, April 29. URL: https://www.regjeringen.no/no/aktuelt/Speech-at-Chatham- House-London-Norway-NATO-and-the-Crisis-in-Ukraine/id758246/ [Accessed: 14.08.2018] Secondary Sources: Anderson, B. (2004) ‘Imagined Communities: Reflections on the Origin and Spread of Nationalism’ In: Leoussi, A. and Grosby, S. (eds.) Nationality and Nationalism. London, New York: I. B. Tauris: 293-297. The Arctic Council (1996) ‘Declaration on the Establishment of the Arctic Council (The Ottawa Declaration)’ Arctic Council Archive. URL: https://oaarchive.arctic-

185 council.org/bitstream/handle/11374/85/EDOCS-1752-v2- ACMMCA00_Ottawa_1996_Founding_Declaration.PDF?sequence=5&isAllowed=y [Accessed: 07.09.2018]

The Arctic Council (2018) ‘The Arctic Council: A backgrounder’ URL: https://arctic- council.org/index.php/en/about-us [Accessed: 07.09.2018] Baev, P. K. (2005) ‘The Runaway Trawler and Russia’s Wounded Pride’ Eurasia Daily Monitor, 2(200). URL: https://jamestown.org/program/the-runaway-trawler- and-russias-wounded-pride/ [Accessed: 30.08.2018] Balzaq, T. (2005) ‘The Three Faces of Securitization: Political Agency, Audience and Context’ European Journal of International Relations 11(2): 171-201. BBC (2018a) ‘Container ship to break the ice on Russian Arctic route’ 23 August. URL: https://www.bbc.co.uk/news/business-45271766 [Accessed: 27.08.2018] BBC (2018b) ‘Russia launches biggest war games since Cold War’ September 11. URL: https://www.bbc.com/news/world-europe-45470460 [Accessed: 12.09.2018] Berenskoetter, F. (2014) ‘Friendship, Security and Power’ In: Koschut, S. and Oelsner, A. (eds.) Friendship and International Relations. London: Palgrave Macmillan: 51-71. Borgerson, S. G. (2009) ‘The Great Game Moves North’ Foreign Affairs, 25 March. URL: https://www.foreignaffairs.com/articles/global-commons/2009-03-25/great- game-moves-north [Accessed: 27.08.2018] Boulège, M. (2018) ‘NATO Needs a Strategy for Countering Russia in the arctic and the Black Sea’ Chatham House, July 2. URL: https://www.chathamhouse.org/expert/comment/nato-needs-strategy-countering- russia-arctic-and-black- sea?utm_source=Chatham%20House&utm_medium=email&utm_campaign=96353 14_CH%20Newsletter%20-%2006.07.2018&utm_content=NATO- CTA&dm_i=1S3M,5QINM,QZ57ID,MCMA9,1 [Accessed: 30.08.2018] Browning, C. S. (2003) ‘The Region-Building Approach Revisited: The Continued Othering of Russia in Discourses of Region-Building in the European North’ Geopolitics 8(1): 45-71. Campbell, D. (1998) Writing Security: United States Foreign Policy and the Politics of Identity. Minneapolis: University of Minnesota Press. De Cillia et al. (1999) ‘The discursive construction of national identities’ Discourse & Society 10(2): 149-173. Hagesæther et al. (2018) ‘Den siste sjøulk [The Last Seaman]’ A-Magasinet, August 3. URL: https://www.aftenposten.no/amagasinet/i/oRGJ2B/Den-siste- sjoulk?spid_rel=2 [Accessed: 29.08.2018] Hansen, L. (2008) Security as Practice: Discourse analysis and the Bosnian war. London, New York: Routledge. Hilde, P. S. (2013) ‘The “new” Arctic – the Military Dimension’ Journal of Military and Strategic Studies 15(2): 130-153.

186

Hopf, T. (1998) ‘The Promise of Constructivism in International Relations Theory’ International Security 23(1): 171-200. Huebert, et al. (2012) ‘Climate Change & International security: The Arctic as a Bellwether’ Center for Climate and Energy Solutions. URL: https://www.c2es.org/site/assets/uploads/2012/04/arctic-security-report.pdf [Accessed: 27.08.2018] Hylland Eriksen, T. and Neumann, I. B. (2011) ‘Fra slektsgård til oljeplattform: Norsk identitet og Europa [From family farm to oil platform: Norwegian identity and Europe]’ Internasjonal Politikk 69(3): 413-435. Jacobsen, R. (1985) Nattåpent. Oslo: Gyldendal Norsk Forlag. Janmohamed, A. R. (1985) ‘The Economy of Manichean Allegory’ In: Ashcroft et al. (2006) The Post-Colonial Studies Reader. London and New York: Routledge. 19-23. Jensen, L. C. (2017) ‘An Arctic “marriage of inconvenience”: Norway and the othering of Russia’ Polar Geography 40(2): 121-143. Jensen, L. C. and Skedsmo, P. W. (2010) ‘Approaching the North: Norwegian and Russian foreign policy discourses on the European Arctic’ Polar Research 29: 439- 450. Klimenko, E. (2014) ‘Russia’s Evolving Arctic Strategy: Drivers, Challenges and New Opportunities’ SIPRI Policy Paper 42. URL: https://www.files.ethz.ch/isn/183898/SIPRIPP42.pdf [Accessed: 30.08.2018] Kristoffersen, B. and Dale, B. (2014) ‘Post Petroleum Security in Lofoten: How identity matters’ Arctic Review on Law and Politics 5(2): 201-226. Lasserre et al. (2012) ‘Is there an arms race in the Arctic?’ Journal of Military and Strategic Studies 14 (3/4): 1-56 Lebow, R. N. (2016) National Identities and International Relations. Cambridge: Cambridge University Press. Leira, H. (2013) ‘“Our Entire People are Natural Born Friends of Peace”: The Norwegian Foreign Policy of Peace’ Swiss Political Science Review 19(3): 338-356. Leira et al. (2007) ‘Norske selvbilder og norsk utenrikspolitikk [Norwegian ideas of self and Norwegian foreign policy]’ Norwegian Institute of International Affairs (NUPI). URL: https://www.files.ethz.ch/isn/46181/200704_Norske_selvbilder.pdf [Accessed: 29.08.2018] Le Mière, C. and Mazo, J. (2013) Arctic Opening: Insecurity and Opportunity. London, New York: Routledge. Medby, I. A. (2014) ‘Arctic state, Arctic nation? Arctic national identity among the post-Cold War generation in Norway’ Polar Geography 37(3): 151-269. National Snow & Ice Data Center (2018) ‘Quick Facts on Arctic Sea Ice’ URL: https://nsidc.org/cryosphere/quickfacts/seaice.html [Accessed: 07.09.2018] Neumann, I. B. (1996) ‘Self and Other in international Relations’ European Journal of International Relations 2(2): 139-174. Nilsen, T. (2017) ‘Kommersant: Russia lists Norway’s Svalbard policy as potential risk of war’ The Barents Observer, October 4. URL: 187 https://thebarentsobserver.com/en/security/2017/10/kommersant-russia-lists- norways-svalbard-policy-potential-risk-war [Accessed: 30.08.2018]

Norwegian Defence Research Establishment [Forsvarets Forskningsintstitutt] (2004) ‘Russisk Svalbars-politikk [Russian Svalbard Politics]’ URL: https://www.ffi.no/no/Publikasjoner/Documents/FFI-Fokus-2004-1.pdf [Accessed: 30.08.2018] Ocean Law (2008) ‘The Ilulissat Declaration’ URL: http://www.oceanlaw.org/downloads/arctic/Ilulissat_Declaration.pdf [Accessed: 07.09.2018] Oseland, K. M. and Raspotnik, A. (2018) ‘Moscow’s Arctic revenge’ About Energy, 31 July. URL: https://www.aboutenergy.com/en_IT/topics/moscow-s-arctic- revenge.shtml# [Accessed: 14.08.2018] Persson, G. (2014) ‘Vilka är vi? Rysk identitet och den nationella säkerheten [Who are we? Russian identity and the national security]’ Nordisk Østforum, 3: 199-214. Raji, A. (2018) ‘The Perils of Playing Footsie in Military Boots: Trident Juncture and NATO’s Nordic Front’ War on the Rocks, August 20. URL: https://warontherocks.com/2018/08/the-perils-of-playing-footsie-in-military-boots- trident-juncture-and-natos-nordic-front/ [Accessed: 31.08.2018] Risse, T. (2000) ‘”Let’s Argue!”: Communicative Action in World Politics’ International Organization 54(1): 1-39. Said, E. W. (1978) ‘Orientalism’ In: Aschroft et al. (eds.) The Post-Colonial Studies Reader. London, New York: Routledge: 24-27. Scopelliti, M. and Pérez, E. C. (2016) ‘Defining security in a changing Arctic: helping to prevent an Arctic security dilemma’ Polar Record 52(267): 672-679. Sergunin, A. and Konyshev, V. (2014) ‘Russia in search of its Arctic strategy: between hard and soft power?’ The Polar Journal 4(1): 69-87. Steele, B. (2009) Ontological Security in International Relations. London: Routledge. Tamnes, R. (2011) ‘Arctic Security and Norway’ In: Kraska, J. (ed.) Arctic Security in an Age of Climate Change. Cambridge: Cambridge University Press, 47-63. United States Geological Survey (USGS) (2008) ‘Circum-Arctic Resource Appraisal: Estimates of Undiscovered Oil and Gas North of the Arctic Circle. URL: https://pubs.usgs.gov/fs/2008/3049/fs2008-3049.pdf [Accessed: 07.09.2018] Walt, S. M. (1997) ‘Why alliances endure or collapse’ Survival 39(1): 156-179. Weldes, J. (1996) ‘Constructing National Interests’ European Journal of International Relations 2(3): 275-318. Wendt, A. (1992) ‘Anarchy is what States Make of it: The Social Construction of Power Politics’ International Organization 46(2): 391-425. Wilhelmsen, J. (2017) ‘Russland: Hvor reell er trusselen og hvordan bør Norge forholde seg til den? [Russia: how real is the threat and how should Norway respond to it?]’ Norwegian Institute of International Affairs (NUPI), November 28. URL: 188 https://www.nupi.no/Nyheter/Russland-Hvor-reell-er-trusselen-og-hvordan-boer- Norge-forholde-seg-til-den [Accessed: 31.08.2018] Wilhelmsen, J. and Gjerde, K. L. (2018) ‘Hva er klok NATO-politikk overfor Russland? [What are wise NATO politics in relation to Russia?] Aftenposten, June 21. URL: https://www.aftenposten.no/meninger/debatt/i/oRGkvK/Hva-er-en-klok- NATO-politikk-overfor-Russland--Julie-Wilhelmsen-og-Kristian-Lundby-Gjerde [Accessed: 31.08.2018] Young, O. R. (2011) ‘The future of the Arctic: cauldron of conflict or zone of peace?’ International Affairs 87(1): 185-193. Østhagen, A. (2016) ‘High North, Low Politics – Maritime Cooperation with Russia in the Arctic’ Arctic Review on Law and Politics 7(1): 83-100. Østhagen, A. (2018) ‘Managing Conflict at Sea: The Case of Norway and Russia in the Svalbard Zone’ Arctic Review on Law and Politics 9: 100-123. Åtland, K. (2014) ‘Interstate Relations in the Arctic: An Emerging Security Dilemma?’ Comparative Strategy 33(2): 145-166. Åtland, K. and Bruunsgaard, K. V. (2009) ‘When Security Speech Acts Misfire: Russia and the Elektron Incident’ Security Dialogue 40(3): 333-353. List of Illustrations: Figure 1 Arctic Centre, University of Lapland (2018) ‘Arctic Seaways’ URL: https://www.arcticcentre.org/EN/communications/arcticregion/Maps/Seaways [Accessed: 14.09.2018] Figure 2 Norwegian Petroleum Directorate (2018) ‘The Norwegian Continental Shelf’ URL: http://www.npd.no/en/Maps/Map-of-the-NCS/ [Accessed: 14.09.2018] Figure 3 Fridtjof Nansen Institute (2017) ‘Barents Sea’ In: Jensen, L. C. (2017) ‘An Arctic “marriage of inconvenience”: Norway and the othering of Russia’ Polar Geography 40(2): 121-143.

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Changing Perceptions and Ideology: the Role of Epistemic Communities of Museum Professionals in Cultural Diplomacy: An Analysis of Discursive Practices of Collaboration between the British Museum and Iran

Eloisa Romani

Abstract: Transnational relations are characterised by uncertainty and unpredictability of the behaviour of states and non-state actors. Neorealist thinking still informs perceptions of threat in the international system and national governments and supranational institutions are encouraged to give priority to defense and security vis-à-vis external dangers such as nuclear conflict or terrorism. The thesis claims that this mode of thinking is the effect of an ideological apparatus that can only be challenged starting from the domain of ideas. For this purpose, diplomatic studies should direct their attention to the ability of epistemic communities in the field of cultural heritage to contribute to transform adversarial relations between countries. The case studies analysed, regarding the joint collaboration of museum exhibitions in Britain and Iran, substantiate the argument that epistemic communities of museum professionals can perform two sets of actions that are relevant in diplomacy: firstly, they can challenge established ideologies through the organisation of exhibitions that introduce new cultural ideas to the public; secondly, they are able to start discursive practices of museum collaborations that by their very transnational nature produce new meanings of friendship and signs of goodwill towards foreign policy-makers. The paper argues, building from research findings, that the British Museum has a unique potential to carry out an organic form of cultural relations that are not embedded with political diplomacy precisely because it is independent from the government, unlike the case of most national museums in Europe.

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Introduction This study claims that culture has a vital role to play in diplomacy; however, its value remains underestimated by diplomatic studies. Literature on cultural diplomacy is relatively under-theorised compared to the broader category of public diplomacy (Mitchell, 1986:xiii; Mark, 2010:63; Kim, 2017:294); its conceptual limitations are due to the lack of variety of empirical studies that have selected cultural activities as objects of analysis (Nisbett, 2011:49). This study wishes to address these limitations and presents the analysis of two case studies that have created a momentum in cultural relations between the British Museum and the National Museum of Iran, and consequently, between the two countries. The case studies include the exhibition ‘Forgotten Empire: the World of Ancient Persia’, held in London from 9 September 2005 to 8 January 2006, and the ‘Cyrus Cylinder’ exhibition, which took place in Tehran from 12 September 2010 to 20 March 2011. The latter also constitutes a legacy of the Forgotten Empire exhibition. The reasons for the choice of these case studies are twofold. Firstly, they represent important instances of transnational collaboration started by a non-state actor, the British Museum, with Iran; secondly, the collaborations were in dissonance with the Foreign and Commonwealth Office’s (FCO) strategic priorities. In fact, the British Government was cautious not to send signs of engagement towards Iran at a time when it was putting pressure on the latter to forego plans of nuclear enrichment. Yet, during later stages of the museums’ collaborations, foreign ministers, high-level policy-makers and ambassadors from both Britain and Iran accepted to get involved in the process and acknowledged its importance. In order to adequately describe the ways in which museum professionals started processes of transnational exchanges in the face of initial political discouragement, these case studies seem to require a theoretical re-adjustment of the assumptions underpinning cultural diplomacy. The paper argues that these cases of collaboration can be better described under the category of ‘cultural relations’ rather than ‘cultural diplomacy’, to underlie the independence of museum professionals from foreign policy objectives. This research aims to test the resilience of cultural relations and practices of transnational collaborations carried out by museum professionals when traditional diplomacy is unable to deliver results. It suggests that trust and personal relations are crucial to start and maintain an open dialogue (Wheeler, 2013:492) and should be constructed before diplomatic crises emerge. This aspect requires urgent attention in the current international context, given the escalation of uncertainty and discourses of nuclear threat that have caused the US’ withdrawal from the Nuclear Agreement signed in 2015 with Iran and the five permanent members of the UN Security Council plus Germany. The research design is structured into four analytical sections. The first section presents a literature review surrounding the different theoretical conceptualisations of diplomacy, cultural diplomacy and cultural relations. In order to substantiate these claims, working definitions of the concepts are provided. Then, it introduces the research methodology. This is based on the ‘grounded theory’ model (Gioia et al., 2012:17) of inductive reasoning, which facilitates the emergence of new aspects during the research and new concepts development. In the second section, the thesis sets about to analyse these activities as well as the ideas informing them under the lenses of the epistemic communities approach developed by Peter Haas (1992). However, the paper departs from Haas in considering museum professionals as directly involved in shaping policy-making. In fact, the directors and curators interviewed by the author have expressed the outmost 191 importance of keeping their activities independent from strategic objectives. The dissertation also draws from practice theory (Adler and Pouliot, 2011) to explain how epistemic communities can bring significant change to the international system, namely through the performance of discursive practices (Foucault, 1980). The research builds on the post-structuralist stances to practice theory developed first by Ann Swidler through the theorisation of ‘anchoring practices’ (2001:90) and then by Lene Hansen with the conceptualisation of ‘politico-epistemic domains’ (2011:283). The third section provides a poststructuralist understanding of the transnational political context as structured by a neoliberal regime that enforces a security paradigm and conceptualises weapons of mass destruction ‘as the highest ordering unit in the international system’ (Plesch and Christiansen, 2008:391). The paper claims that this narrative constitutes an ideology disguising geopolitical interests (Hinnebusch, 2007:211). Building on this premise, it sets forth a warrant: this neoliberal ideology needs to be deconstructed in the domain of ideas. Then it suggests that this process can take place by changing perceptions of threat. For this purpose, experts in the cultures of countries like Iran, which are ideologically portrayed as not normal (Hook, 2018) are uniquely placed to deconstruct cultural friction. This is necessary to enable constructive dialogue and to guarantee the resilience of diplomacy against conflict escalation. In the fourth section, the research analyses the first case study and outlines two important sets of actions that epistemic communities in cultural heritage have performed in order to change perceptions of threat concerning Iran. The first concerns the ideological level and is represented by the message of the Forgotten Empire exhibition. The second set of actions refers to the material enactment of ideas of friendship through discursive practices of collaboration. Successful practices of collaboration are path-dependent and cannot be reversed, therefore are resilient to the disruption of diplomatic ties. This is proven by the other major exhibition that was organised in Iran as a legacy of the Forgotten Empire exhibition, namely the ‘Cyrus Cylinder’ exhibition, which is the focus of the fifth section. The study provides an insight into the dynamics that have made the exhibitions possible, from the conception of the idea through to negotiations with policy-makers, paying particular attention to problems that had arisen, which occurred at the intersection between practices performed by museum professionals and practices performed by policy-makers. The research also contributes to literature on Iran’s approach to cultural diplomacy, which appears in contrast with the ideological narrative of projecting Islamic values abroad (Wastnidge, 2015:370).

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Chapter I: Literature Review and Research Methodology Literature review on cultural diplomacy According to Geoff Berridge, diplomacy is a ‘political activity …[whose] chief purpose is to enable states to secure the objectives of their foreign policies without resort to force, propaganda or law, […] either by formal agreement or tacit adjustment’ (2005:1). A more neutral definition that does not imply notions of power is provided by Ronald Peter Barston (2013:1), who states that ‘diplomacy is concerned with the management of relations between states and between states and other actors’. Amongst these, he includes ‘officials from different international organisations such as the International Monetary Fund (IMF) and the United Nations (UN) Secretariat, … foreign corporations, … non-governmental organisations (NGOs) and ‘private’ individuals’. However, the paper finds that a more convincing definition is presented by Geoffrey Wiseman, who developed the concept of ‘polylateralism’ and ‘non-state diplomacy’ (1999:36), advocating a renovation of the field. He states that ‘diplomats will need to adapt their role as cautious gate-keepers of a narrowly-defined “national interest” to incorporate a self-perception as innovative change-agents, operating at multiple levels of international discourse’ (1999:37). In doing so he puts forth a very important question that should be asked in International Relations, that is, to ‘consider if states are in fact resisting, co-opting, or co-operating with nonstate actors’ (1999:36-37). Wiseman’s insight of the complex relations emerging in a globalised world, where states need to engage with civil society institutions that are often critical of governments’ policies, seems to be more accurate to describe the evolving nature of diplomacy. The paper suggests that scholarship in diplomacy should rethink the relationship between politics and culture and conceptualise the latter as belonging to a separate domain. In this domain, actors that are not informed by foreign policy strategies should be recognised as playing a key role in forging cultural relations with other countries. In fact, this study wishes to bring to scholarly attention the fact that institutional non-state actors such as the British Museum have already been carrying out activities in the domain of the arts and culture that have produced results of significant diplomatic value; yet, their activities cannot be described as performing ‘cultural diplomacy’, as they were never aligned to diplomatic work in the political sense. Different approaches to cultural diplomacy have been proposed by scholars to analyse the relationship between cultural activities and political advantages. These have produced analytical dichotomies such as ‘instrumentalism’ versus ‘anti- instrumentalism’ (Nisbett, 2013:569); ‘reflexive’ approach versus ‘nation branding’ (Villanueva, 2007:38); ‘culturalist’ versus ‘neo-propagandist’ (Zamorano, 2016:178), etc. Yet, the author argues that all of these fail to provide cases where cultural activities are completely separate from the ultimate objective of changing the country’s national image abroad. Milton Cummings’ defines cultural diplomacy as ‘the exchange of ideas, information, art and other aspects of culture among nations and their peoples in order to foster mutual understanding’ (2003:1); however, his definition is contested by scholars such as Akira Iriye (1997) and John Matthew Mitchell (1986:4) because it fails to qualify the political dimension of cultural diplomacy. Mitchell conceives cultural diplomacy as a category that includes both propaganda and cultural relations, stating that he sees propaganda ‘at one end of a scale that passes through cultural diplomacy to cultural relations at the other’ (1986:28). Cultural diplomacy is widely recognised as a sub-

193 category of public relations, that is, ‘a government’s process of communication with foreign publics in an attempt to bring out understanding for its nation’s ideas and ideals, its institutions and culture, as well as its national goals and policies’ (Tuch, 1990:3). The notion of ‘soft power’ as opposed to coercive power advanced by Joseph Nye Jr. (2008:95) seems to have influenced all thinking about public diplomacy and cultural diplomacy alike. Nye defines ‘soft power’ as ‘getting others to want the same outcomes you want, and that requires an understanding of how they are hearing your messages’ (2008:103). Other scholars such as Melissen (2005:13) have advanced the conceptualisation of ‘new public diplomacy’ to account for the importance of states to engage with foreign publics directly, giving priority to ‘relationship building’ and ‘two- way communications’. The latter aspect is particularly important to contrast perceptions by countries in the global Periphery of being subject to ‘a one-way flow of culture from the West’ (Leonard et al., 2002:48). With regard to the concept of ‘cultural relations’, Akira Iriye conceives it as an undertaking of international relations through culture. He operationalised the notion of ‘culture’ by qualifying it as ‘structures of meaning’ and associates it with ‘memory, ideology, … artistic works, and other symbols” (Iriye 1997:3). Based on this premise, he defines cultural relations as ‘interactions, both direct and indirect, among two or more cultures. Direct interactions include physical encounters with people and objects of another culture’ (Iriye, 2004:242). Another interesting perspective is offered by Richard Arndt, who understands cultural relations as any type of cross-national relations that ‘grow naturally and organically, without government interventions’ (Arndt 2006, xviii). From these postulations it is possible to argue that ‘cultural diplomacy’ can be better described as a subfield of public diplomacy because, regardless of the different attempts that are being made to define it, it is still semantically underpinned by the importance of serving the national interest and being aligned to foreign policy strategies. The phrase ‘cultural relations’ instead is more neutral to discourses of strategy and provides more scope in terms of the inclusion of non-state actors as agents. A British Council report on cultural diplomacy also highlights that the term ‘cultural relations’ is gaining more currency as it is conceived ‘as a space of mutual activity, where receiving the culture of others is as important as showing one’s own culture to the rest of the world’ (Holden, 2013:19). Noting a tension between the two concepts of cultural diplomacy and cultural relations, the research however wishes to problematise the understanding of cultural relations as being too neutral. It bears no reference to the important functions that actors who carry out cultural activities can perform and the objectives they can achieve. In doing so, the author intends to operationalise the notion of cultural relations by defining it as the domain of the practices of epistemic communities within the fields of cultural heritage and museology. In this way, two points are clarified: the first concerns the value of the practices, which is of a strictly ‘cultural’ nature; the second instead refers to the value of the consequences of the same practices, which assumes a diplomatic quality. The research therefore advocates a re-thinking of the role of culture and of cultural heritage professionals who are independent from foreign-policy objectives in the study of diplomatic practice. These postulations are derived from the analysis of the two case studies presented here, following the realisation that the cultural work carried out by the communities of museum professionals analysed cannot be understood under the lenses of cultural diplomacy, as many of the interviewees have stressed in several occasions. Of particular interest is the fact that their activities have never been merged with those of diplomats, but have only intersected at specific points in the process of their work, maintaining separate goals. Thanks to their independent work, museum

194 professionals have been able to initiate path-dependent and self-reinforcing practices of personal and institutional collaboration that are resilient to political crises, opening parallel channels of communications between people across the two countries.

Research methodology The research methodology followed by this study is based on the ‘grounded theory’ model (Gioia et al., 2012:17) of inductive reasoning, which assumes that informants are ‘knowledgeable agents’ and that their perspectives do not require a reformulation according to pre-constituted categories of analysis. This approach facilitates the emergence of new aspects during the research and the development of new concepts. As proponents of the grounded theory methodology Dennis Gioia, Kevin Corley, and Aimee Hamilton (2012:17) specify, researchers should ‘not presume to impose prior constructs or theories on the informants as some sort of preferred a priori explanation for understanding or explaining their experience’. This approach has had important consequences for the research. The author of this study has noted that asking interviewees to explain their work in order to enable a better understanding of the functioning of ‘cultural diplomacy’ was met with resistance by several informants to the very idea of describing their work as ‘cultural diplomacy’. The researcher has therefore benefited from changing the approach to formulating the questions regarding the nature of the process of collaboration between museum professionals. Following the postulation that ‘concepts are precursors to constructs’ (Gioia et al., 2012:17) in understanding social reality, the study has benefited from the use of inductive reasoning to analyse processes concerning the social construction of practices of collaboration between museums. Therefore, the researcher has changed approach and has asked the interviewees to describe their own experience, accepting the way they made sense of their transnational work and articulated it according to their own mental schemas and language. This has allowed the emergence of important findings that differ from original expectations as they cannot be adequately described under the conceptual category of cultural diplomacy. The research questions guiding this study are: firstly, what ideas have motivated British Museum professionals to start a collaboration with a museum in Iran, notwithstanding troubled political relations; secondly, how new ideas have been transformed into material, discursive practices of transnational collaboration; thirdly, how these cross-national practices have been maintained and whether they have followed a progressive pattern or whether they have been undermined by the intersection with practices of a political nature. Since the informants placed particular importance in stressing that their work could not be described under the category of ‘diplomacy’, as it was not informed by nor was intending to serve foreign policy objectives, the author has had to question the validity of the term ‘diplomacy’. This has led the research to propose an epistemological shift in rethinking the role of culture in diplomacy in order to analyse the work of epistemic communities in the field of cultural heritage who act independently from states and yet who produce work that has an undeniable value for scholars and practitioners of diplomacy. The research has been conducted through semi-structured, face-to-face interviews with seven top-level informants who had been involved with the organisation of the exhibitions. These include: former British Museum Director Dr. Neil MacGregor (interviewed on 1 August, 2018); Dr. John Curtis, at the time Keeper of the Ancient Near East Department at the British Museum (interviewed on 29 July, 2018); Dr. Vesta Sarkhosh Curtis, curator of Ancient Iranian coins at the British Museum (interviewed 195 on 29 July, 2018); Dr. Nigel Tallis, curator at the Ancient Near East Department (interviewed on 31 July, 2018); Dr. Ian Jenkins, senior curator of the Department of Greek and Roman Antiquities (interviewed on 30 July, 2018); Jill Maggs, loan manager and executive assistant to Neil MacGregor (interviewed on 1 August, 2018), and Dr. Shahrokh Razmjou, at the time Director of the Centre for Achaemenid Studies at the National Museum of Iran (interviewed on 2 August, 2018). Moreover, the author has been able to analyse documentation including briefings, reports and official correspondence concerning the project of the Forgotten Empire exhibition through the British Museum archive.

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Chapter II: Theoretical Framework Integration of the epistemic communities approach with practice theory This study intends to analyse the actors who carry out activities of cultural relations under the theoretical lenses of the epistemic communities approach developed by Peter Haas. Haas defines an epistemic community as ‘a network of professionals with recognised expertise and competence in a particular domain and an authoritative claim to policy-relevant knowledge within that domain or issue-area’ (1992:3). He notes that the members of these communities are bound together by different characteristics, most notably ‘a share set of normative and principled beliefs, […] intersubjective understandings … [and] a shared commitment to the application and production of knowledge’ (1992:3). This study finds this theorisation useful to describe groups of people who carry out cultural activities at transnational level independently from national governments and who do not intend to subordinate their work to foreign policy strategies. In fact, in the cases analysed, the cultural activities of museum professionals intersect with diplomatic activities only at the end of the process of the organisation of the exhibitions, and, most importantly, never merge with them. Museum professionals have been able to enact practices that have produced invaluable assets for diplomacy, such as trust, engagement and mutual understanding. However, the motivations and dynamics leading to these results are going to remain ignored if they are analysed under the lenses of cultural diplomacy. Qualification of epistemic communities The scope of epistemic communities under analysis includes museum professionals from the British Museum and the National Museum of Iran who had decision-making power with regard to the negotiations and activities leading to the organisation of the Forgotten Empire exhibition as well as the Cyrus Cylinder exhibition, and whose standing was acknowledged by higher echelons in policy-making. These include: Dr. Neil MacGregor, Dr. John Curtis, Dr. Vesta Sarkhosh Curtis, Dr. Mohammad-Reza Kargar, Dr. Nigel Tallis, Dr. Zahra Jafar’ Mohammadi and Dr. Shahrokh Razmjou. These museum professionals hold specific knowledge in the field of cultural heritage. The terms ‘museum professionals’ and ‘cultural heritage professionals’ are used interchangeably in this paper to refer to the epistemic communities under analysis. Their epistemological domain of knowledge can be broadly identified with ‘museology’. Effrosyni Nomikou defines museology as:

‘the study of museum processes (identifying, collecting, exhibiting, preserving, serving, meaning-making, constructing and communicating narratives), their history, and, at the same time, as a translation of these processes into action, professional skills and definitions of best practice’ (2015:206).

The author believes that the experts identified above were responsible for important diplomatic achievements at the end of the process of the organisation of the exhibition. Although many other actors had contributed to the success of the event, this research estimates that the principal interventions and efforts had been made by these professionals. Their legitimacy had always been accepted by ministers, politicians, ambassadors and other collaborators. Other actors such as sponsoring entities or

197 people who covered government positions are excluded from the scope of the communities of museum/cultural heritage professionals because they do not have specialised knowledge in the field. Lastly, actors in the field of foreign policy, such as state presidents, foreign ministers, ambassadors and diplomatic practitioners are here broadly referred to as ‘policy-makers’ or ‘diplomats’. Limitations with the conceptual framework of epistemic communities The argument purported by Emanuel Adler and Peter Haas (1992:371) in their seminal analysis of the role of epistemic communities in international relations uses what they define a ‘structurationist’ approach, based on social constructivism. Anthony Giddens first introduced structuration theory, which posits that ‘structures are both the medium and the outcome of the practices which constitute social systems’ (1981:27). Therefore, actors can change the social structure and other actors’ behaviour, but only within certain limits, because the social structure also shapes their own actions, through norms and beliefs. In Adler and Haas’ view, epistemic communities who influence policy-makers do so only in terms of their expertise, because they share similar cultural beliefs and values with them and are willing to cooperate to advance the national interest. However, the findings of this study are incongruent whit this assumption. In fact, it shows that museum professionals conduct activities according to their own ideas and are driven by their own beliefs, values and interests, which they share with other museum professionals in Iran. Their ideas and practices only intersect with the practices of political actors, rather than serving them. The power and agency of museum professionals lies exactly in their independence from policy-makers. Therefore, the research challenges the utility of Adler and Haas’ structurationist framework to analyse epistemic communities, because it fails to accommodate the following findings: firstly, museum professionals do not necessarily share beliefs with policy specialists in their own country; secondly, their professional social structure has more influence on their beliefs than the state social structure; thirdly, they do not seek to influence political decision-making, nor are officials seeking their advice. Dr. John Curtis explained in an interview (29 July 2018) that the FCO never solicits advice from experts in cultural heritage, nor does it expect to be approached. In their analysis of the manner in which epistemic communities introduce new ideas into the policy process, Adler and Haas (1992:375) mainly consider cases where experts proactively approach decision-makers and institutional bodies to provide advice on certain issues, a process that is described as ‘socialisation’ (Ikenberry and Kupchan, 1990:289), or where they are consulted by policy-makers. This research instead introduces two cases where advice is not sought by any party. Instead, processes of collaboration are started by museum professionals who merely request to ambassadors and policy-makers to preside at the openings of the museum exhibitions. It is at this point that high-level politicians from different countries meet. The particular social milieu facilitates cognitive changes and adjustment of perceptions. Practice theory This research proposes to combine the epistemic communities approach with a pragmatic framework of analysis based on practice theory. This assumes an understanding of world politics as ‘a set of textual practices’ (Der Derian and Shapiro, 1989; in Adler and Pouliot, 2011:3). This study adopts a post-structuralist theoretical standpoint to interpret the relationship between practice and discourse and the way practices evolve and new ideas and meanings are produced in a path-dependant manner. The paper takes as object of analysis the discursive practices performed by transnational epistemic communities of museum professionals, which intersect with 198 the discursive practices of policy-makers. Michel Foucault (1977:30) developed the notion of ‘discourse’ to refer to a body of knowledge that is socially constructed as commonsense. Notably, poststructuralism criticises ‘claims and assumptions … that appear to be common sense […and that] limit how we may think about an issue and therefore support particular solutions’ (Zehfuss, 213:152). Prominent scholars agree that practices can be defined as ‘meaningful patterns of activities’ (Schatzki, 2001:3; Pouliot and Cornut, 2015:301). In particular, Lene Hansen states that practices do not take place in a vacuum, but ‘are constituted within particular politico-epistemic domains that delineate which forms of authority and knowledge are appropriate’ (2011:283). This notion of ‘politico-epistemic domains’ is fundamental to appreciate the existence of different realms of knowledge that shape actors’ interpretation of the world they live in. Ann Swidler developed the concept of ‘anchoring practices’ as a pragmatic way to study change and the progressive evolution of practices. She defines practices as ‘enacted schemas … which can be transposed from one situation or domain to another’ (2001:80-81). William Sewell Jr. (1992:13) had introduced the concept of ‘schema’ to describe mental structures, or systems of meanings, which are attached to actual resources such as objects, signs or symbols. Swidler argued that change of perception and behaviour happens when meanings attached to certain practices are transposed to new practices: at the end of the process, the original meanings are rearticulated according to different schemas. This analysis is in line with Stuart Hall’s reception theory, according to which recipients of messages undertake a process of decoding of meanings (Hall, 1980b:107), based on certain mental schemas. This model can describe how both groups of museum professionals and policy-makers perform their own routine practices according to two separate schemas, objectives and beliefs. This is the crucial advantage of using practice theory as analytical framework. The paper proposes that the approach of discursive practices can provide new insights into how cultural heritage professionals carry out activities that are consequential at diplomatic level without at the same time participating in diplomatic activities. The concept of anchoring practices (within practice theory) can be applied to the study of epistemic communities of museum professionals to describe how the habitual practices of museum exchanges interact at certain points with habitual practices of diplomats, and diplomats from that point participate in the same practices but attribute new meanings to them according to their own systems of signification. This anchoring of meaning occurs when cultural heritage professionals ask foreign-policy makers to preside at formal cultural events of international importance. It is in these interstices of collaboration that diplomats are introduced to new possibilities to meet the representatives of countries with whom relations are strained. This constitutes invaluable opportunities for them to adjust their perceptions about the other party. In this new model advanced by this study, empirical findings derived from the present research can be accommodated into a theory of the role of epistemic communities in transnational policy-coordination. According to this model, policy-makers can learn from direct assistance to museum professionals during the processes when transnational collaboration takes place. Paradoxically, the study finds that there is greater advantage for policy-makers to participate in the events organised by museum professionals whose work is independent from strategic interests, because only in this way they can work in an environment that is more conducive to relationship-building.

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Chapter III: The International Context This section starts by putting forth a claim concerning the wider context of international relations. It agrees with Dan Plesch and Poul-Erik Christiansen’s argument that the international system is structured according to ‘a realist-strategic mode of questioning and understanding’ which conceptualises weapons of mass destruction ‘as the highest ordering unit in the international system’ (2008:391). In the 2002 State of the Union Address, then-American President George W. Bush asserted that Iran is one of the countries that form the ‘axis of evil’, who aspire to develop a nuclear weapon (Bush, 2002). The ‘war on terror’ doctrine advanced by Bush in 2002, however, is strategically weak as it does not identify a subject or a theatre for action, and was used to try to legitimise preemptive conflicts under the UN Charter even in the absence of imminent attacks (Gray, 2011:46). According to classic realists in International Relations (Morgenthau, 1960), states are rational actors that seek to maximise gains in an anarchic international system; neorealism recognises the same principles, adding into considerations structural constraints given by networks of interdependence and economic processes (Waltz, 1979). Kenneth Waltz, a proponent of the latter approach, went as far as arguing that Iran should be allowed to develop nuclear capabilities in order to gain deterrent power and thus ensure regional stability vis-à-vis the unchecked nuclear power detained by Israel (2012:3). These rationalist approaches can be identified under the category of ‘global neo-realism’ (Boli and Thomas, 1997:172). In the neoliberal world, states are told to place their security and defence as national priorities against the invisible enemy of terror, which also includes Iran. In March 2003, American President Bush, followed by British Prime Minister Tony Blair, declared an end to diplomacy with Iraq and invaded the country, under the assumption that it possessed nuclear weapons, despite compliance with THE United Nations’ inspections (Encyclopaedia Britannica, 2018).

Former British Ambassador to Iran, Sir Richard Dalton, speaking at the Charles Denman memorial lecture to the Royal Society for Asian Affairs (2016:351), pointed out at the complex international context that had shaped Iran’s relationships with several countries in the world as a consequence of similar allegations of developing a nuclear programme. He stated that Britain, together with France and Germany (the ‘E3 group’) had been negotiating with Iran the issue of uranium enrichment suspension since 2003, following disclosures in 2002 about possible non-respect of the Safeguards established by the International Atomic Energy Agency. He noted that ‘a threat of a preemptive war by the US or Israel or both emerged’ (2016:353). Then, under the US influence, the negotiating terms changed and the Iranian Supreme Leader, Ayatollah Ali Khamenei, rejected the agreement on charges that it was humiliating Iran. In 2005, President Ahmadinejad replaced the moderate Khatami administration with a more conservative one, changing the course of events. Only with the new government of Hassan Rouhani, elected in 2013, constructive negotiations resumed. These led to the Joint Comprehensive Plan of Action signed by Iran and the five permanent members of the United Nations Security Council—China, France, Russia, United Kingdom, United States—plus Germany) and the European Union, on July 14, 2015. The Nuclear Agreement was endorsed by UN Security Council Resolution 2231 (United Nations, 2018). Yet, in May 2018 American President Donald Trump announced that the United States would unilaterally withdraw from the Agreement, two weeks after Israeli Prime Minister Benjamin Netanyahu had publicly released allegations that Iran was not respecting its terms (Holmes and Borger, 2018). This decision ran against the requests to the US by the other European countries that

200 were signatories to the deal to respect the pact, which had marked a victory for diplomacy. Changing perceptions and ideology This paper argues that the current transnational political context informed by American neoconservative thinking is grounded on a neorealist politico-epistemic regime (Littoz-Monnet, 2017:77) that reused the old Cold War categories of ‘West and East’ to portray countries allegedly possessing nuclear capabilities as enemies (Bush, 2002). The paper claims that this narrative is part of a neoliberal ideology and that it disguises geopolitical interests (Hinnebusch, 2007:211). Hence, it builds on Antonio Gramsci’s concept of cultural hegemony to advocate that this ideology needs to be deconstructed first in the domain of ideas. Gramsci advanced the notion of ‘cultural hegemony’ (1971:12) to refer to the power of ideologies to penetrate the domain of civil society by way of normalising certain ideas as common sense. Then he hypothesised the importance for citizens to create a new counter-hegemonic culture. Similarly, Raymond Williams (1962:134) suggested that culture is the realm where citizens should participate in order to develop new meanings and ideas that can challenge those offered by state institutions and the media. This paper posits that changing preconceptions about enemies is a necessary first step to change perceptions of threat and to guarantee the resilience of diplomacy against conflict escalation. For this purpose, experts in the cultures of countries like Iran, which are publicly portrayed as ‘not normal’ in American political language (Hook, 2018), are uniquely placed to deconstruct an ideological project that posits ‘an existential conflict with the enemy “other”’ (Crooke, 2009:252).

Starting from the assumption that in order to change international behaviour it is important to change perceptions, which means acting in the domain of the mind, the paper sets about to analyse the importance of the work of museum professionals under these lenses. It presents their activities of cultural relations as being informed by these ideas, which are then diffused to global audiences through the medium of museum exhibitions. The argument advanced by this research is twofold: first, it argues that epistemic communities of museum professionals have the unique power to challenge political neoconservative thinking informed by a neorealist ideology that identifies Iran as an essentially ‘evil’ country. The Forgotten Empire exhibition has been a successful first step towards this objective. The second argument is that the process of organising the exhibition has started progressive practices of transnational collaboration between Britain and Iran that have assumed a discursive value of cordial relationships which has reached the level of foreign policy-making. As a result, the organisation of the Cyrus Cylinder exhibition was possible at a time when political relations were strained. Thus, epistemic communities of professionals in cultural fields possess a unique language that is useful for diplomacy to prevail. The two case studies presented below are structured as follows: firstly, they provide an overview of the exhibitions’ contexts and the counter-ideological messages embedded within their texts; secondly, they engage in an analysis of how the idea of the collaboration between Britain and Iran had been formulated by the epistemic communities of museum professionals; thirdly, they highlight the points of intersection between the museum experts and the practices of policy-makers, alongside the problems that had arisen in several instances, and illustrate how tackling these issues had produced new paths for diplomacy, promoting additional trust; lastly, they investigate the legacy of the exhibitions in terms of changes of perception and behaviour in foreign policy.

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Chapter IV: the Case Study of the ‘Forgotten Empire’ Exhibition Context and message of the exhibition This chapter presents the first case study of the Forgotten Empire exhibition. Acting independently from the Foreign and Commonwealth Office, the British Museum approached the National Museum of Iran in April 2003 to pursue a joint project concerning the organisation of the most important exhibition of ancient Iranian culture to have been mounted outside the country. Called ‘Forgotten Empire: the World of Ancient Persia’, the exhibition was held at the British Museum in London from 9 September 2005 to 8 January 2006. Its purpose was to present the greatness of the civilisation of Ancient Persia to the world, focusing on the Achaemenid Empire, founded by Cyrus the Great and which flourished between 550 and 330 BC. The exhibition featured important objects of ancient Persian material culture, providing an image of Iran before the Islamic period, which started with the Arab conquests in the 7th century A.D.. As Stuart Hall argues, the texts of cultural artefacts cannot be disassociated ‘from the social practices which produced them and the institutional sites where they were elaborated’ (1980a:14). In the case analysed, said institutional sites were the British Museum and the National Museum of Iran. The objects that had been chosen to be part of the exhibition had a textual value that communicated certain messages about the cultural identity of Iran, and a subtextual value that challenged certain ideological assumptions attached to the country. Therefore, museum professionals with high-level expertise in the cultural heritage of Iran are uniquely placed, thanks to their specialised knowledge, to rearticulate ideas as well as to deconstruct stereotypes and political ideologies that depict Iran as a rogue state in the international system. As cultural commentator Peter Aspden wrote in an article on the FT Magazine about the exhibition, ‘to examine a nation’s cultural heritage is to ask acute existential questions to it. What is its essence? … Should it be a friend or an enemy?’ (Aspden, 2006). An example of the exhibition’s resonance can be found in the debate sparked in The Guardian blog by an article by commentator Jonathan Jones. He referred to Persia as ‘the evil empire’ as opposed to ancient Greece, using overtones from the ‘axis of evil’ ideology. He wrote that ‘the very existence of the exhibition is a diplomatic coup: in case you hadn't noticed, Persia is now Iran’ (Jones, 2005). Dr. Shahrokh Razmjou used the same public forum to reply and explain that archaeological evidence shows that

‘the idea of a clash between Persian and Greek civilisation … is a modern fabrication. […] The Persian kings appreciated the artistic achievement of ancient Greece … [However,] the close connection between the Greek and Persian civilisations and their cultural exchange is totally forgotten in modern texts’ (Razmjou, 2005).

The purpose of the exhibition was indeed to question established assumptions on the role of Persia in history grounded in Western classical scholarship, by way of presenting archaeological evidence. Overshadowed by Greek authors’ biased literary accounts, which followed a narrative genre structured on the contraposition between the virtues of Athenians versus the evilness of non-Greeks, the history of the Persian Empire had remained relatively unknown to Europeans, until archaeological excavations had produced different historical evidence. According to the important Classical art historian Salvatore Settis, in today’s global setting it is crucial to

202 deconstruct the ‘myth of an original and shared “classical” civilisation [that…] translates … Greek history as universal history’ (2006:10). In fact, because ‘Greek’ civilisation is unduly associated to ‘Western’ civilisation, as if both were coherent ontological entities, the latter is normalised as universal, and other cultural traditions are inevitably reified in opposition to this one. From a social sciences perspective, therefore, the Forgotten Empire exhibition is aimed at questioning the foundation of the West’s ideology, which is epitomised by the narrative of Samuel Huntington’s ‘Clash of Civilisations’ (1994). This understanding has legitimised over the ages arguments in favour of European colonialism and cultural hegemony. Ideas behind the exhibition The idea to start an exhibition on Iran, focusing on the first large empire in history, the Achaemenid Empire, had been proposed by Dr. John Curtis, at the time Keeper of the Near East Department of Antiquities at the British Museum, to the then-Director Neil MacGregor during a trip to Iran in April 2003. In the interview with the author, Curtis explained that there had never been a major exhibition on the subject, despite the great contributions of Persian culture to the world’s cultural heritage, therefore this had been a longstanding project that he had wished to do. Dr. Vesta Sarkhosh Curtis, British Museum Curator of ancient Iranian coins, added that one of the ideas behind the event was the importance for the world to know more about the culture of Iran, especially at a time where negative depictions of the country were being conveyed by the international media. The exhibition later became a point of reference for later exhibitions, as it had set the norm of focusing on Iran from a perspective that was not political. A project briefing of the exhibition (British Museum, 29 October 2004) lists among its aims: ‘to mount an exhibition that shows the pivotal role of Persia in the ancient world; to elucidate the early history of the Middle East and its contribution to civilisation; to provide an authoritative view of the Achaemenid Empire (550-331 B.C.) from a Persian rather than Greek perspective’. In an email correspondence by Curtis to the museum staff, Curtis communicated that he and MacGregor had thought to add the following items to the list: ‘to redress the negative Eurocentric view of Persians presented by Greek authors’ and ‘to present the historical background of a modern Islamic state’ (Curtis, personal correspondence). Dr. Ian Jenkins, Senior Curator of the Department of Greek and Roman Antiquities, which also includes the Parthenon sculptures (the ‘Elgin Marbles’) hosted at the British Museum, told the author (on 30 July 2018) that the Forgotten Empire exhibition was informed by the realisation of the importance to change the imbalanced view of the Greek civilisation being superior to others. The historical narrative that qualifies Greece as the ‘hero’ of history and Persia as the ‘villain’ has profound reverberations in the representation of Persian culture as the epitome of Eastern barbarism. Also, Jenkins noted, there is no such thing as a unified ancient Greek culture. In fact, Greece was the theatre of constant antagonisms and rivalries between city-states, especially Athens and Sparta, which could establish alliances only in view of resisting Persia’s advances. Dr. Nigel Tallis, project co-curator, explained during the interview (31 July 2018) that the narrative of the exhibition was strong and its purpose was to push people to think differently. He said that the idea of a different view of Persia had not been accepted easily by colleagues from the Greek and Roman Department who had been collaborating. They kept referring to items using their accepted terminology and felt difficult to understand, concerning the artistic representations, that the Romans and 203

Greeks’ views on Persia were stereotypical, and that perhaps the Greeks misunderstood what they saw. Tallis reinstated that it was important for curators to deliver an authentic message and keep the high standards that the British Museum audience was going to expect from them. He himself went around the exhibition once it was opened and noticed that visitors had been very receptive of the message. Nobody knew that the exhibition would have stricken a nerve like it did. There had not be a round of successful exhibitions like this before in the last decade. The marketing team was also very happy. It was a surprise, it was new. It was about changing a point of view entirely, supported by the evidence. This proved that culture should never be instrumentalised for economic gains. If that is the main driver, some intangibles are lost. Nobody would have chosen to do an exhibition on ancient Persia if the driver had been purely economic. The British Museum’s vision Former British Museum Director Neil MacGregor confirmed the same perspective in the interview (on 1 August 2018), saying that Greece represents a unique case of a country whose identity has aggressively asserted itself against another country, in particular by vilifying Persian culture. MacGregor provided some important insights regarding the ability of the British Museum to contact Iranian institutions independently from the Foreign and Commonwealth Office. He explained that the British Museum is not a state museum, unlike for instance the Louvre in France, and therefore it follows a different working model from that of most national museums in the world. As stated in the British Museum’s website (2018), the Museum was established on 7 June 1753 through an Act of Parliament that received royal assent, as part of the will of Sir Hans Sloane to make his collection freely accessible to the public. A Board of Trustees has ever since been in charge of guaranteeing the independence of the British Museum from the government, acting as custodians of its collection for the public. In fact, the Trustees are not accountable to the British government, but to the Parliament. Moreover, MacGregor elaborated on the eighteenth century ideal of forming a ‘Republic of Letters’, with a vision to create a global community of people who shared the same ideals and interests in the advancement of knowledge, irrespective of cultural differences. The British Museum is informed by the same vision and seeks to establish networks of personal relations with people in major museum across the world. This network is not political and its value is underlined by trust and shared ideas and beliefs. For example, he mentioned that when he went to Iran with John Curtis in April 2003, he was able to speak with the Director of the National Museum of Iran, Dr. Mohammad-Reza Kargar, and propose the initiative of a joint exhibition dedicated to Ancient Persia, which Kargar enthusiastically accepted. Mr. Mohammad Beheshti, who was Head of the Iran Cultural Heritage and Tourism Organisation (ICHHTO) until June 2003, had told MacGregor that John Curtis was their friend and the institution was happy to lend the objects to him. Cultural relations without the Foreign and Commonwealth Office So, the initiative had been undertaken without first informing neither the FCO nor the British Ambassador in Iran, Sir Richard Dalton. Their very presence in Iran came as a surprise to the Ambassador, who was later requested to facilitate the collaboration with the Iranian authorities. Curtis remembered that the Ambassador was not very optimistic about the initiative given the situation of Anglo-Iranian relations. MacGregor pointed out the novelty of the situation, that is, an Ambassador being told what to do by somebody who is not from the FCO. Furthermore, the FCO was not enthusiastic that the British Museum would be in a position to start cultural relations 204 with Iran, as in that moment the British government was exerting pressure on Iran to forego nuclear enrichment plans, and actions contrary to this line might have been interpreted differently by foreign allies. Notwithstanding the FCO’s views, MacGregor insisted on the absolute importance of the independence of cultural activities, and also of the British Museum from foreign policy strategies. In an another interview with Jill Maggs (31 July 2018), at the time Executive Assistant to MacGregor for the Forgotten Empire exhibition, she stressed how the British Museum has been able to build, thanks to Neil MacGregor’s museum policies, a solid social network with other museums in the world, which allows the British Museum to be resilient to macro-shifts in foreign policy, such as the upcoming Brexit. She pointed to another example, namely the British Museum’s loan of a Parthenon sculpture from the Elgin Marbles to the State Hermitage Museum in St. Petersburg, Russia, to celebrate the 250th anniversary from its foundation, in 2014. The FCO had again expressed concerns that the British Museum’s approach would be interpreted as a message of approval from the British government to Russia at a difficult time in transnational diplomatic relations. Curtis recalled that Kargar had come to Britain in 2002 and had met with him and MacGregor, and invited them to Iran. In April 2003, Curtis and MacGregor went to Iran for a visit of two weeks and met there Kargar and staff at the National Museum of Iran. In an another interview, Dr. Shahrokh Razmjou, at the time Director of the Department of Achaemenid Studies at the National Museum of Iran, recalled that Neil MacGregor had mentioned the idea of the exhibition to Dr. Kargar over a dinner, and Kargar had been enthusiastic. Later MacGregor announced the project publicly at an event at the National Museum, saying that the British Museum would be willing to lend the Cyrus Cylinder to Iran, an object that represents an important national icon for Iranians, being tied to founder of the first Persian Empire, Cyrus the Great. This proposal in particular was cheered with much joy by Iranians. Trust-building through practices of collaboration The author notes that these informal meetings were crucial to foster trust and face-to- face relationships. It agrees with Nicholas Wheeler’s argument that ‘assessments at the top level of the potential trustworthiness of a current adversary might be importantly shaped by the interactions between diplomats … at the lower levels of the bureaucracy’ (2013:478). However, in the case analysed, epistemic communities of museum professionals have carried out this role. The research therefore suggests that the latter have been performing diplomacy tout court, producing results of important diplomatic value, especially because of their independence from policy-circles. This paper argues that these top-level museum professionals should be considered as important players within diplomatic studies. Such meetings as well as personal correspondence can play a significant role in gaining an understanding of the social context where the other party is situated, similarly to what scholars of negotiation processes define the ‘diagnostic stage’ (Stein, 1989:484). These are useful to shed light on the power relations that are in play regarding the ability of the counterpart to take responsible decisions on its own. Most importantly, personal meetings are crucial to remove an ‘inherent bad faith model’ (Finlay et al., 1967:26). Based on an idea first advanced by Henry Kissinger (1960:194) concerning ideological fundamentalism, this model purports that a party views the other partly as unreliable because of inherent characteristics and values. Here, any proactive sign of engagement is translated into a stratagem to give an unfounded sense of security. This understanding may undermine official diplomatic negotiations. This happened with Iran’s Nuclear Deal, in particular when Israeli Prime Minister Netanyahu and US 205

President Trump affirmed that Iran’s decision to forego nuclear ambitions could not be trusted (Cohen, 2018). Ken Booth and Nicholas Wheeler define ‘ideological fundamentalism’ as ‘the mindset which assigns enemy status because of what the other is’ (2008:7). This neorealist thinking is based on a Hobbesian fear, which creates a vicious cycle of assumptions whereby the other party (i.e. Iran) is expected to make the first conciliatory step and grant concessions. Robert Jervis referred to this as the ‘spiral model’ (1976:58) of international conflict, where initial preconceptions lead to a behaviour that can soon escalate into war. This study sustains that if in transnational negotiations it is problematic to engage in cost signalling, that is, making risky concessions in order to create trust, then trust-building is an effort that should be undertaken on a parallel channel, and this is made available by epistemic communities. The practices of collaboration and communication that British Museum professionals could establish within the domain of museum exchanges were crucial to start a series of progressive path-dependent practices that entered the domain of foreign policy. Ronald Fisher (1989) posits that before starting negotiations it is pivotal to focus on forging personal relationships so that representatives from different parties might get more accurate perceptions about one another. This may facilitate a more relaxed milieu for self-disclosure and receptivity of the other’s ideas. Moreover, ‘the norm of reciprocity in interpersonal relations’ enables a more constructive behaviour (Fisher, 1989:450). These aspects have an intangible value and potential for diplomatic accomplishments, and the cognitive behaviour described here can better be achieved in a social setting that is not within the domain of politics. Correspondence between the British Museum and the National Museum of Iran An analysis of the process that has led to the build-up of the exhibition illustrates how relations between the British Museum and the National Museum of Iran had been forged and how trust had been progressively built. The author was able to access the British Museum archives and examine the written correspondence between the two museums. A look at the documentation shows that over the months following the first meeting, dialogue between MacGregor, Curtis and Kargar was ongoing, as the parties kept writing to one another in the form of written letters, fax and email correspondence. Formal declarations of willingness to proceed with the exhibition had been exchanged first on 30 December 2003 and then on 28 January 2004. In this way, a new set of practices of museum negotiations had been started. Curtis wrote to Kargar: ‘May I take this opportunity to say what a pleasure and a privilege it is to work with the National Museum of Iran on this project, and we look forward to a fruitful collaboration’. The use of language was important to start a mutual relationship. On 4 February 2004, Kargar confirmed that the Museum in Tehran was ready to start the collaboration officially. He invited Curtis to Iran, writing that his presence there would be necessary in order to ‘put this programme into effect’. On 10 May 2004, a private dinner was organised at the British Museum with special guests to raise awareness about the exhibition and to find sponsors. From a look at the documentation the author has noted that two attendees were FCO staff from the Iran Department within the Middle East section. Of particular importance is the fact that at the time when cultural relations between the two countries were being forged, international political events were precipitating. In fact, in June 2004 there was a major diplomatic incident concerning the seizure of Royal Navy personnel by Iran. The BBC News websites reads: ‘Eight British sailors are held in Iran after their vessel apparently strays into Iranian waters. […] They are released three days later following negotiations between British diplomats and Iranian officials’ (BBC, 2007).

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On 10 July 2004, Kargar wrote to Curtis to invite him to come back to Iran along with some British sponsors of the exhibition. On 1 September 2004, he wrote again to Curtis to inform him of the official acceptance of the exhibition by the Iranian Cultural Heritage, Handicraft and Tourism Organisation (ICHHTO). On 21 January 2005, Curtis replied to Kargar to inform him that the British Museum would be sending the contract soon along with a fee of £100,000 to the ICHHTO concerning the loan. He also mentioned that the British Museum would need to receive the objects by 1 July 2005 in order to prepare the installation for the exhibition, which would open on 7 September 2005. Establishing contacts with foreign policy-makers From January 2005, practices of collaborations started gaining momentum. Curtis recalls that MacGregor had had the brilliant idea to send some important British reporters to Iran to look at the objects that would be part of the loan and write about them. The purpose was to achieve a wide audience before the exhibition would start off. On 3 March 2005, Curtis communicated in an email to MacGregor and other British Museum staff about his positive meeting with the Iranian Ambassador to London, Dr. Mohammad Hossein Adeli. He wrote that Dr. Adeli had ‘stressed that both he and people in Tehran were very enthusiastic about the exhibition and he promised to do everything he could to help. During the course of the exhibition he hopes to organise various events to promote Iranian culture’ (Curtis, 2005). Again, this proves that the Iranian Ambassador too was following the instructions of museum professionals in Britain, to help them carry out their work. This denotes the large extent of independent agency the epistemic community of museum professionals had vis-à- vis diplomats and policy-makers. It also proves that their standing and authority were acknowledged internationally. On 16 May 2005, Neil MacGregor hand-wrote two separate letters to the Rt. Hon. Tessa Jowell, M.P., Secretary of State for Culture, and to the Rt. Hon. Jack Straw, M.P., Secretary of State for Foreign Affairs, informing them that in September the British Museum would be hosting the Forgotten Empire exhibition, and to enquiry about their intentions to be present. It is worth quoting the content of the letter that Neil MacGregor wrote to the Foreign Secretary Jack Straw, as this further testifies to the importance that top members from the epistemic community of museum professionals such as Neil MacGregor had in requesting the presence of high-level foreign policy- makers in their projects. He wrote:

I called on the Vice-President in Tehran, who confirmed the very high importance his government attaches to the London exhibition, and indicated that he would like to come to the U.K. to open it. He hoped that there would be the highest level of support – and presence – from members of H.M.Q. I wonder if I might contact your office for advice on this purpose, and to discuss whether you might be able to be present at the opening ceremony. (MacGregor, Letter to Foreign Secretary, 2005).

This communication is relevant to highlight how the dynamics of collaboration between epistemic community professionals and foreign policy representatives are in dissonance with the established belief that underpins cultural diplomacy, that is, that it is policy-makers who instruct professionals in cultural fields to carry out their work according to certain strategic priorities. In particular, MacGregor was also able to establish a direct contact with the Vice-President of Iran, at the time Hossein Marashi 207

(from the Khatami administration). He acted as an invaluable mediator between high- profile representatives of Britain and Iran, without having been solicited to do so by third parties. The Foreign Secretary Jack Straw accepted MacGregor’s invitation and participated in the opening of the exhibition on 7 September 2005. The exhibition opening marked an important moment in establishing a channel of communication between British and Iranian policy-makers outside the official political platform. Political problems encountered during the organisation of the exhibition Before the event, however, significant political issues were encountered. In June 2005, the new presidential elections in Iran had been won by Mahmoud Ahmadinejad. This marked the beginning of a new conservative government in Iran. John Curtis and Vesta Sarkhosh Curtis recounted in the interviews that the British Museum faced a major resistance when, following the change of presidential administration in Iran, some people in both the National Museum of Iran and ICHHTO had tried to prevent the loaned objects to depart from Tehran. The lorries of the British shipping company had been stopped from leaving the museum. For unclear reason, the issue of the loan had to be re-approved again by the new officials. The political change in the Iranian government had thus interfered with the activities of museum professionals. This aspect only gives further weight to the conclusion that the diplomatic value of the exhibition had not been lost on the Iranian authorities. The risk of the entire exhibition being cancelled was high, and it would have caused a major setback in the relations between Britain and Iran. Nigel Tallis described the events as follows:

There were ups and downs particularly towards the end. There was a danger of a last minute decision that it would not go. It would have been terrible publicity and it would have confirmed everybody’s prejudices. The political aspect was about to stop everything. Yet, in the end, something as important as a changing government couldn’t completely derail it. (Tallis, interview, 2018).

The matter of the loan was referred to the Iranian Cabinet, awaiting the decision of higher political authorities to proceed. At the same time, John Curtis wrote to the leaving Vice-President of Iran, Dr. Marashi, trying to request his intervention to help the exhibition to proceed. He wrote:

We very much hope that the Cabinet will authorise the loan. […] We still hope that the opening of the exhibition will be an opportunity to demonstrate the strengthening of Irano-British cultural relations and understanding. (Curtis, correspondence, 2015).

Quite significant is that in the letter Curtis mentioned the importance to endorse ‘cultural relations’ between Britain and Iran. He did not use terms such as ‘diplomacy’ or ‘bilateral relations’. This reveals that museum professionals understand their work to fall under the conceptual category of ‘cultural relations’. On a same note, Neil MacGregor sent a hand-written letter to Dr. Kargar, saying:

Dear Friend, as we wait for the decision on Sunday, I should like to thank you and your colleagues for everything you have done: we all hope that we

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shall be able to welcome you, and a magnificent exhibition, to London in September. (MacGregor, correspondence, 2005)

The resilience of contacts established at personal level is clear, despite major political systemic shifts. Eventually, the permission to proceed was granted by the Iranian Cabinet. Iran had a new Vice-President, Esfandiar Rahim Mashaei, who also covered the position of Head of the Iran Cultural Heritage, Handicraft and Tourism Organisation. It was him and his delegation that presided at the opening of the Forgotten Empire exhibition. Intersection between museum practices and the practices of policy- makers Vesta Sarkhosh Curtis recounted that an hour before the opening there was a very important private official meeting between the Iranian Vice-President Esfandiar Mashaei and British Foreign Secretary Jack Straw in Neil MacGregor’s office, together with the Iranian Ambassador in London, Dr. Mohammad Hossein Adeli, and the Iranian Attaché of Cultural Affairs in London, Dr. Ali Akbar Rezai. She acted as translator to Mashaei, who had expressed his views about how important it was to have this exhibition, as only a few countries were siding with Iran. The thesis claims that Neil MacGregor’s communications to the Iranian Vice-President and to the British Foreign Secretary, and then their participation at the opening of the exhibition, marked two specific instances in the process of cultural relations between Britain and Iran where the specific discursive practices of museum professionals intersected with the politico-epistemic domain of diplomacy. From these specific junctures of domains, new meanings were produced and a new discourse of friendly relations between Britain and Iran was instantly constituted. This new discourse was created within the field of cultural relations and was mediated to the field of diplomacy through a language of cultural collaboration. In this process of mediation, epistemic communities of museum professionals were major actors. Most importantly, Neil MacGregor recounted in the interview that Jack Straw had told him that his view of Iran had changed after visiting the exhibition. Also, Straw himself had said that he had given a copy of the exhibition catalogue to Condoleezza Rice, at the time the United States’ Secretary of State. A post-structuralist analysis of discursive practices This analysis is an application of Lene Hansen’s theory of ‘intersections’ (2011:292) between practices that belong to different politico-epistemic domains (e.g. cultural heritage and diplomacy). Ann Swidler’s concept of ‘anchoring practices’ (2001:95), whereby some practices anchor certain meanings to other practices, is also useful to describe how the practices of collaboration between museums, when performed in a certain transnational context, become vested with an added layer of meaning as soon as they interact with practices from the domain of diplomacy. As Emanuel Adler and Vincent Pouliot note, ‘sense-making and situated-ness are particularly important aspects of the study of international practices’ (2011:9). This research agrees with studies that argue in favour of a ‘practice-based theorising’ of diplomacy (Der Derian, 1987; Neumann, 2002) and suggests that attention should be dedicated in particular to the study of transnational practices carried out by epistemic communities of cultural heritage professionals. They can greatly contribute to the field because they are familiar with the cultural sensitivities and the history of the countries with whom relations should be fostered. 209

A post-structuralist framework of analysis places particular importance on the observation of how a common discursive language is created between museum professionals and policy-makers. This language is performative (Derrida, 1997) and is constituted by a text that is provided by the specific vocabulary from the body of knowledge of cultural heritage. The text starts producing a subtext that has the value of signalling ‘friendly relations’ at the specific point in time when it enters the domain of diplomacy, namely as soon as policy-makers are included in the performance of transnational activities. This process describes, from the point of view of social theory, how new ideas are formed in the interstices when practices intersect with other practices. These new ideas are influential in shaping the perception of actors in the domain of foreign policy. Diplomats and policy-makers are able to adjust the perception of representatives from the other country when they meet in a social context of unofficial diplomacy that allows them to assume an attitude that is more prone to reciprocity and collaboration. This argument builds on a tradition of studies in conflict resolution known as ‘human needs theory’, pioneered by John Burton and Herbert Kelman (1990:283), which combines inter-disciplinary contributions from social psychology and international relations. Human needs theory posits that conflicts are exacerbated by distortions in perceptions by the different parties regarding each other’s needs. Burton and Kelman argue that solutions emerge out of interactions between high-level representatives of the same parties. In this sense, shaping perceptions is the point of application of the power of ideas to state behaviour. Reactions to the exhibition The exhibition opening received large resonance in the press and the academic literature. The Financial Times, referring to the discussions between Straw and Mashaei, commented that ‘It was salutary to see the way that a discussion that based itself on cultural questions … passed seamlessly on to much sharper political issues. The elision felt natural, organic’ (Aspden, 2005). The magazine Apollo highlighted the political importance of the event, saying ‘The British Museum is taking on a new role: as a forum for international diplomacy’ (Apollo, 2005:15). In an article on cultural diplomacy, Leanne Hoogwaerts writes that ‘the greatest significance of the loan … lies within the museum’s very collaboration with the Iranian government’ (2012:6). The renowned report ‘Cultural Diplomacy’, written in 2007 by the think tank Demos to assess the importance of culture in international relations (Bound et al., 2007:11), cites the Forgotten Empire exhibition opening as a significant example of cultural diplomacy, noting that the fact that ‘Jack Straw was able to share a platform with the Iranian vice president [was] something that would have been unthinkable in any other forum’ (Bound et al., 2007:55). The report also advocates that culture should no longer be understood as ‘subordinate to politics … [but rather] as providing the operating context for politics’ (Bound et al., 2007:20). The British Museum’s press report includes a long list of articles and references to the Forgotten Empire exhibition. The total readership, including national newspapers, consumer magazines and specialist publications amounted to 52,397,618 (British Museum, 2006). The marketing report notes that the exhibition had attracted 154,267 visitors over its 119-day run, with an average of 1,296 visitors per day. The original exhibition target was 150,000 visits. It states that ‘a full education programme, including special lectures, gallery talks, workshops and study days was developed for schools, adult and family audiences’ (British Museum, Marketing Report, 2006). Museum curators themselves personally visited schools in London and introduced schoolchildren and teachers to the content of the exhibition and the importance of Persian culture in history. Nigel Tallis recounted in the interview that teachers had told 210 him that they had no scholarly references upon which to base their teaching about the history of Iran, and that they had found the exhibition catalogue very helpful.

Legacy of the exhibition The research advances the argument that the accomplishments of the Forgotten Empire exhibition include several factors. Firstly, the success of the transnational epistemic community of museum professionals in working together and enacting discursive practices of collaboration that have produced a discourse of mutual understanding between Britain and Iran. Secondly, the exhibition’s challenge to established ideologies that depict Iran as part of the ‘axis of evil’ vis-à-vis global audiences. Thirdly, it has facilitated a change in mutual perceptions between Britain and Iran, both in the field of cultural relations and foreign policy. Fourthly, it has started a cycle of progressive and self-reinforcing practices of transnational collaboration that have eventually been joined by Iranian policy-makers, leading to a change in foreign-policy behaviour towards Britain. In conclusion, epistemic communities of museum professionals have been able to create an alternative channel of diplomacy that is resilient to international crises.

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Chapter V: The Case Study of the ‘Cyrus Cylinder’ Exhibition Context and message of the exhibition The Cyrus Cylinder exhibition was held at the National Museum of Iran from 12 September 2010 to 15 April 2011 and was made possible thanks to the British Museum’s loan of the iconic artefact known as ‘Cyrus Cylinder’. This is a clay cylindrical object that bears the edict of the Persian Emperor Cyrus the Great (6th C. B.C.). The Cylinder has been popularly referred to, although in a modern reformulation, as ‘the first charter of human rights’, because its text displays remarkable ideas such as ‘humane treatment of the conquered people … regardless of culture, language and religion’ (Razmjou, 2013:122). To the ancient audience, it also embodied a political meaning: the old regime had gone and a new era of justice was inaugurated. Nowadays the Cyrus Cylinder has become a symbol of cultural identity for Iranians. The case study of the Cyrus Cylinder exhibition can be considered as the evidence of a change of attitude by the Iranian government towards Britain, following a change of perceptions that was caused by British museum professionals at the time of the Forgotten Empire exhibition. In fact, although the intention of museum professionals had been to mount an exhibition on Iranian culture, Iranian policy-makers had interpreted this as a sign of goodwill from Britain. Also, the occasion had provided the Iranian government with an opportunity to promote the image of the country to a global audience. When Iranian officials arrived in London, they were received by the British Foreign Secretary. Although both Iranian and British officials were performing their duties just by presiding at the exhibition opening (an instance when their professional practices had intersected with the professional practices of museum experts), the high-level meeting had produced a new discourse of transnational collaboration. Meanings that had been embedded within schemas of cultural exchange had been transposed, appropriated and re-articulated according to different schemas within the domain of diplomacy by Iranian politicians. The author finds that this production of meanings can be explained by Hall’s theory of encoding and decoding in discourse (Hall,1980b:107) and argues that meanings are originally produced according to certain codes, but are then decoded according to different mental schemas. Thus, it is in the interstices of transposition of meanings, that is, between encoding and decoding, that ideas are produced. Applying this perspective to the event of the opening of the Forgotten Empire exhibition, the paper argues that the meeting had been originally encoded by the museum community as an officialisation of the exhibition, but had been later decoded as a diplomatic turning point by the political representatives. They in fact took inspiration from the event and decided to carry on with the collaboration. Foreign Secretary Jack Straw had been very enthusiastic about learning more about Iranian culture, and Iranian Vice-President Mashaei had expressed the wish that more exhibitions could be organised with the British Museum. New ideas had been produced during the event, perceptions at political level had been changed in the minds of political representatives about the possibilities for cultural cooperation between Britain and Iran, and attitudes had been transformed. As Fisher notes, personal encounters tend to produce cognitive changes (1989:451). The Forgotten Empire exhibition paved the way to a new virtuous cycle of progressive practices of cooperation, leading to the organisation of two further joint exhibitions by the British Museum and the National Museum of Iran, namely the ‘Shah Abbas: The Remaking of Iran’ exhibition, held at the British Museum from 19 February to 14 June 2009, and the ‘Cyrus Cylinder’ exhibition. As Adler and Haas stated, practices bring ‘evolutionary 212 changes to structures [which], once in place, are largely irreversible and virtually determine the array of subsequent choices available’ (1992:372). For reasons of space, the Shah Abbas exhibition is not included as a case study in this research. However, its success can be understood in terms of signalling the resilience and continuity of practices of collaboration between the British Museum and the National Museum of Iran after the Forgotten Empire exhibition. The case of the Cyrus Cylinder exhibition has been chosen instead for two reasons: firstly, it took place in Iran, and secondly, the Cylinder had been the object of negotiations between the British Museum and the new Vice-President of Iran, Hamid Baghaei, which risked to unsettle diplomatic ties. The problems were later overcome by the epistemic community of museum professionals. It is important to note that, by the time of this exhibition, both the National Museum of Iran and the ICHHTO had changed Directors, and Dr. Razmjou had moved to work at the British Museum from the National Museum of Iran. The case of the Cyrus Cylinder exhibition illustrates how museum professionals can cause change in international behaviour in an indirect way, by means of bringing policy-makers from countries with strained relations closer, however not for the purpose of facilitating policy-making. In fact, the encounters between transnational policy-makers and diplomats are epiphenomenal to the practices of museum exchanges carried out by the epistemic communities. During the process, occasions arise for the formation of a new social reality that can allow a change of perceptions on the part of diplomats. This independence of epistemic communities from policy- makers, as opposed to subordination to foreign policy strategies, is what enables them to cause a change of perspective by foreign policy-makers and eventually a change of behaviour in transnational relations. Ideas behind the exhibition In the interview, Razmjou explains that Iran’s Vice-President Mashaei was the one who had passed the idea of borrowing the Cyrus Cylinder to the new Head of ICHHTO, Baghaei and to the new Director of the National Museum of Iran, Ms. Azadeh Ardekani. The proposal to send the Cyrus Cylinder to Iran had been advanced by Neil MacGregor during his first visit in 2003 during preliminary enquiries about the joint organisation of the Forgotten Empire exhibition. The subject had been brought up several times over the years, although it was never considered as a pre-condition by Iran to agreeing to making loans. In November 2009, Curtis and British Museum loans manager Jill Maggs travelled to Iran to make arrangements. However, the British Museum was cautious about proceeding with the loan given the protests that had spread all over Iran in December 2009, ‘due to perceived irregularities in the re-election of President Ahmadinejad’ (Curtis, 2013:92). At the same time, Baghaei had insisted with MacGregor and Curtis to send the Cylinder to Iran. The request was interesting, given the association of the Cylinder with Iran’s past under the rule of the Shah. Edward Wastnidge (2015:367) highlights a difference between the pre-Revolutionary and the post-Revolutionary Iranian cultural diplomacy, which articulated different identities, the pre-Islamic and then the Islamic. Analysts have observed that Iran had been directing efforts to use culture as soft power after the 2009 uprisings, conceiving it no longer as a threat but as a medium to exercise influence over ideas (Adelkhah, 2010:9). Curtis and Razmjou said in the interview that right at the time of the loan some new important fragments from the Tablets Archive of the British Museum had come to light. These belonged to a duplicate text containing the same text of the Cyrus Cylinder, including some broken and missing lines. Such an important discovery had required further study of the object, therefore the loan had been postponed. This fact had 213 created a massive setback in Iran, with cultural heritage officials accusing Britain not to be trustable. The decision to send the Cyrus Cylinder to Iran took place in the uncertainty that this would not be returned back to Britain. Neil MacGregor explained in the interview that the Cyrus Cylinder has an enormous importance for Iranians. At the time of the unrests, it would have been a powerful tool of government propaganda to show that the administration had been able to re-take a symbol of Iranian history back from the British. Yet, the museum policy prescribed the importance to keep constructive relations with museums all over the world, and that these should never be subordinated to politics. He himself presented the question to the Trustees of the British Museum, and it was the only time when one by one, each of the Trustees voiced his personal opinion on whether the Cylinder should go. MacGregor maintained that it was a matter of trust, and trust was necessary to withstand situations of uncertainty. He announced to the Trustees that he was ready to resign in case the Cylinder was not returned. The FCO in particular was opposed to sending the Cylinder to Iran. A spokeswoman of then-Foreign Secretary David Miliband stated: "It is a shame that the British Museum has felt compelled to make this decision … [owing to] the “unsettled” situation in the country’ (Wilson, 2010). At the end, the Trustees agreed to the loan. In case of refusal of the loan, the British Museum would have risked to deteriorate political relations with Iran. The situation had reached a momentum whereby Neil MacGregor had been attributed a sort of political authority by Iranian policy-makers. This case highlights the crucial importance that non-state actors may acquire once practices of collaborations have gone on over time: in fact, these practices cannot be reversed. At the same time, if steps forward are not taken, it amounts to an affirmative action that bears specific meaning in diplomatic language. Manuchehr Sanadjian observes in an article covering the event that ‘although the two museums – British and Iranian – seemed to be engaged in arranging an exchange, the object of this exchange ceased to be a museum object once out of its British house’ (2011:463-464). Intersection between the museums’ practices and the practices of policy- makers In August 2010, Neil MacGregor, Vesta Sarkhosh Curtis and John Curtis went back to Iran to resume negotiations about the loan. In September 2010, the Cyrus Cylinder was carried to Iran and the opening ceremony was held at the National Museum in Tehran. The venue was attended by President Ahmadinejad, Vice-President Mashaei, ICHHTO Director Baghaei, National Museum Director Ardekani, MacGregor, Curtis, Sarkhosh Curtis, a delegation of museum assistants, and, significantly, the British Ambassador to Iran, Simon Gass, together with a host of about 30 ambassadors from other countries. In the interview, Curtis noted that Gass had been very surprised to see that he personally knew Iranian policy-makers and diplomats. The importance attributed to the event by the Iranian government was marked by the speeches of the several officials. Given some modern re-readings of the Cyrus Cylinder as ‘the first charter of human rights’, the implicit message was that Iran is the birthplace of the idea of human rights, and its ostracisation from the international community of states, partly on charges of lack human rights abuses, is misplaced (Sanadjian, 2011:468). Iranian officials also sought to disassociate the Cylinder from the image of the Shah’s rule and to use the terrain of museum exchanges as a site to gain consensus vis-à-vis domestic audiences as those who managed to get the Cyrus Cylinder back to Iran, even if for a limited period. During the ceremony, a spectacle was mounted where actors were dressed up in the roles of Cyrus the Great, of Kaveh Ahangar – a mythological figure of a liberator from injustice – and of a martyr from the Iran-Iraq War. Ahmadinejad put 214 around the neck of these figures a keffiyeh, symbol of Palestinian resistance (Curtis, 2013:99). Because Cyrus the Great is portrayed as a liberator of the Jews in the Bible, this symbolic act was supposed to transform the idea of the Jews from oppressed people to oppressors. In this way, the Cylinder was used as a medium for propaganda. The research finds that Swidler’s conceptualisation of ‘anchoring practices’ is particularly useful to describe the process from a point of view of social theory. Exhibitions openings are sites where cultural and political practices intersect and new discourses are produced in the process. The Cyrus Cylinder exhibition was supposed to be a practice of museum exchange for the British Museum, embodying a discourse of intercultural collaboration, articulated according to certain schemas that are constituted within the epistemological domain of museology. Yet, Iranian government officials thought to use their practices of presiding at exhibition ceremonies in order to appropriate the Cyrus Cylinder exhibition opening as a platform for rehabilitating their public image. In doing so, they anchored a political discourse to the event. As Swidler describes in her work (2001:95), public rituals are instrumental in causing the acceptance of new discourses by society through the re-articulation of cultural icons and symbols in a way that produces new meanings. Legacy of the exhibition The Times correspondent Ben Hoyle, who had accompanied MacGregor to collect the Cyrus Cylinder in Tehran, wrote that

‘Ministers with whom Britain otherwise has no contact are greeted like old friends. It is consummate politics with a small “p” and it demonstrates MacGregor’s point that he is operating in a “parallel realm” from politicians’ (Hoyle, 2011).

The Cyrus Cylinder exhibition testifies to the crucial role that epistemic communities of museum professionals have played in creating path-dependent practices of collaboration between Britain and Iran. In fact, practices constitute ‘evolutionary changes to structures [which], once in place, are largely irreversible and virtually determine the array of subsequent choices available’ (Adler and Haas, 1992:372). Also, it shows that the practices of collaboration established between cultural heritage professionals from Britain and Iran had over time created further practices of collaboration that had been supported by Iranian government officials. As BBC journalist Jonathan Snow commented in an address at Chatham House (2012),

Over the last three or four years, the British Museum has managed to stage some of the most remarkable Persian-based exhibitions that have ever been staged anywhere in the world. […] The relationship continues to this day, pieces have been coming out, scholars have been going in, scholars have been coming out. There has been traffic, there has been an activity, there has been a conversation. And there has been a very strange kind of cultural freedom. (Snow, 2012)

This study argues that the exhibition marked the pivotal importance of trust and diplomatic practices over lack of diplomatic relations. Worth noting is how what had started as relations between simple museum professionals during the Forgotten

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Empire exhibition had turned by the time of the Cyrus Cylinder exhibition into relations between these and politicians in Iran, and subsequently between the latter and British diplomats. Notably, there had been another diplomatic incident in 2011 concerning the storming of the British Embassy by some groups, which were later arrested by the Iranian government (BBC News, 2015). The ensuing break of diplomatic ties could be mended progressively: the person who led members of an all- party parliamentary group to Iran to re-establish diplomatic relations was former Foreign Secretary Jack Straw (Dehghan, 2014). Straw had personally told Neil MacGregor that the Forgotten Empire exhibition had changed his understanding of Iran (MacGregor, interview, 2018). Today diplomatic ties between Britain and Iran are on the process of strengthening. In October 2018, Prime Minister’s Trade Envoy to Iran, Lord Norman Lamont has come to Iran to continue discussions on the UK-Iran trade relationship (‘Uk in Iran’, Twitter account, 2018). He stated that especially after Brexit, the UK will place more ‘emphasis on trade with non-European emerging markets … [and it] might actually be more inclined to look at Iran’ (Sheikhi, 2018). As the report on cultural diplomacy by the Demos think-tank points out (2007:19), Britain has a wealth of cultural assets to be a global leader in cultural relations with other countries, thanks to its Universities, language expertise and first-class museums. However, the case studies show that institutions need to be independent from political and strategic objectives in order to be able to play a role as builders of organic relationships with institutions in other countries. The vision of this role, as played by the British Museum, should be an example to follow.

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Conclusion This thesis has sought to problematise assumptions in cultural diplomacy that conceive practitioners of cultural activities as executors of foreign policy strategies. It has challenged conceptual dichotomies between broadly defined instrumentalist and anti- instrumentalist conceptualisations of cultural diplomacy based on the degree of dependence of cultural practices from political objectives. The author has identified the concept of cultural relations as more amenable for describing the practices of museum professionals and experts in the field of cultural heritage who perform their work for institutions that are independent from national governments, such as the British Museum. Yet, recognising the relative neutrality of the term ‘cultural relations’ and its lack of theoretical qualification with a precise set of functions, this study does not suggest that the concept should be raised to the status of a discipline that stands as alternative to cultural diplomacy. Instead, this paper proposes to operationalise the concept by associating the term cultural relations with the specific actors who perform cultural activities in transnational contexts. It refers in particular to non-state actors who have the autonomous agency to undertake practices of collaboration with other international actors. It identifies these actors in epistemic communities of experts and professionals in the domains of museology and cultural heritage. Hence, taking as object of analysis the cultural relations built by epistemic communities of museum professionals acquires a new significance. Cultural relations are then translated into discursive practices and become observable objects. The research has integrated two theoretical frameworks to identify cultural relations as analytical units: the epistemic communities approach developed by Peter Haas and practice theory, building on the practical turn in social theory (Schatzki et al., 2001). This has enabled the author to analyse the work of a community of museum professionals from the British Museum and the National Museum of Iran and to learn how their practices of collaboration have produced a new discursive character at the moment when these intersected with the professional practices of diplomats and policy-makers. Lene Hansen’s poststructuralist perspective of politico-epistemic domains that frame specific mental schemas and thereby give meaning to patterned actions, and Ann Swidler’s conceptualisations of how practices anchor meanings to other practices, have enabled the research to understand how the ideas of museum professionals are re-articulated by policy-makers within the epistemic domain of foreign policy. At the same time, policy-makers carry out their own practices with new meanings. In particular, the research has suggested that exhibitions openings can be identified as sites where new meanings are produced, derived from the very act of personal encounter between high- level policy-makers of countries with strained relations. In this point in time during the process of transnational collaborations, practices of governments’ officials intersect with those of museum professionals. At this juncture a new social milieu is created, where actors can adjust their perception about the other party. This in turn produces a virtuous cycle of reciprocation and goodwill, which starts from the epistemic communities and is passed on to policy-makers. This process paves the way to a new interdependence of relations between experts in cultural heritage and politicians, whereby the latter can rely on channels and social ties established by epistemic communities to carry out diplomacy in times of crisis. This thesis has provided an empirical insight into the complex process of ‘non-state diplomacy’ (Wiseman, 1999), presenting two case studies referring to exhibitions carried out in joint collaboration by the British Museum and the National Museum of Iran. The research has shown that the first accomplishment of the Forgotten Empire exhibition was represented by its success in challenging established political ideologies 217 that depict Iran as inherently ‘evil’. Changing ideas is the first step to challenge ideological fundamentalism and derivative prescriptions in international politics that can cause preemptive conflicts. A second achievement of the exhibition was the production of progressive discursive practices of collaborations between museum professionals, which has created an alternative channel of diplomacy that is resilient to international crises. This was manifest in the realisation of the Cyrus Cylinder exhibition, the second case study presented in this research. Held in 2010 in Iran, at a time when relations between Britain and Iran were unstable, especially due to social unrest in Iran, Iranian policy-makers were able to contact British Museum professionals based on a channel that had been established during the previous exhibition. The British Museum’s acceptance to lend the symbolic Cyrus Cylinder to Iran, despite risks that it might not be returned, highlighted the intangible value of sending signals of trust in transnational relations. The memory of the success of the exhibition will remain in the history of relations between Britain and Iran, and the actual personal ties that had been established between the museums in the two countries will be constitute an alternative channel of dialogue to make diplomacy work in circumstances where foreign policy-makers are not able to ensure the resilience of diplomacy over conflict.

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Bibliography: Adelkhah, N., 2010. ‘Iran Integrates the Concept of the “Soft War” into Its Strategic Planning’. Terrorism Monitor, 8(23), 7-9.

Adler, E. and Haas, P., 1992. ‘Conclusion: epistemic communities, world order, and the creation of a reflective research program’. International Organization. 46(1), 367-390.

Adler, E. and Pouliot, V., 2011. International Practices: Cambridge Studies in International Relations. Cambridge: Cambridge University Press.

Althusser, L., 1969. For Marx. London: Allen Lane.

Apollo, October 2005. British Museum, ‘Press Pack of Forgotten Empire exhibition’.

Arndt, R. T., 2006. ‘Rebuilding America’s Cultural Diplomacy’. Foreign Service Journal, 83, 39-43.

Aspden, P., 2005. ‘Cultural exchange’. Financial Times. Available from: https://www.ft.com/content/248a8424-46ae-11da-b8e5-00000e2511c8 [Accessed 4 October 2018].

Barston, R. P., 2013. Modern Diplomacy. 4th ed. London and New York: Routledge.

BBC News, 2007. ‘Seized sailors 'held in Tehran’. Available from: http://news.bbc.co.uk/2/hi/uk_news/6494289.stm [Accessed 28 September 2018].

BBC News, 2015. ‘Timeline: Iran and UK relations’. https://www.bbc.com/news/uk- 15949285 [Accessed 28 September 2018].

Berridge, G., 2005. Diplomacy: theory and practice. Basingstoke: Palgrave Macmillan.

Boli, J. and Thomas, G., 1997. ‘World Culture in the World Polity’. American Sociological Review, 62(2), 171-190.

Booth, K., and Wheeler, N., 2008. The security dilemma: fear, cooperation and trust in world politics. Basingstoke: Palgrave Macmillan.

Bound, K., Holden, J., Briggs, R. and Jones, S., 2007. Cultural Diplomacy. London: Demos.

British Museum, 2006. ‘Marketing Report of Forgotten Empire Exhibition’.

British Museum, 2018. ‘Sir Hans Sloane’. Available from: http://www.britishmuseum.org/about_us/the_museums_story/general_history/sir _hans_sloane.aspx [Accessed 27 September 2018].

Bush, G. W., 2002. State of the Union Address. Washington, DC: The White House. Available from: https://georgewbush- whitehouse.archives.gov/news/releases/2002/01/20020129-11.html [Accessed 6 October 2017]. 219

Cohen, A., 2018. ‘Why Netanyahu's revelations should make Trump uphold the Iran nuclear deal’. CNBC. https://www.cnbc.com/2018/05/01/why-netayahus- revelations-should-make-trump-uphold-the-iran-nuclear-deal.html [Accessed 7 October 2018].

Crooke, A., 2009. Resistance: The Essence of the Islamist Revolution. London and New York: Pluto Press.

Cummings, M., 2003. Cultural Diplomacy and the United States Government: A Survey. Washington, D.C.: Center for Arts and Culture.

Curtis, J. and Tallis, N., 2005. Forgotten Empire: The World of Ancient Persia. London: British Museum Press.

Curtis, J., 2013. ‘The Cyrus Cylinder: the creation of an icon and its loan to Tehran’. In: I. Finkel, ed., The Cyrus Cylinder: The King of Persia's Proclamation from Ancient Babylon. London: I.B. Tauris, 85-103.

Dalton, R., 2016. ‘The Iran Nuclear Negotiations: One Year On’. Asian Affairs, 47(3), 351-365.

Dehghan, S. K., 2014. ‘UK-Iranian ties thaw after storming of embassy as Straw leads MPs to Tehran’. The Guardian. Available from: https://www.theguardian.com/world/2014/jan/06/uk-iranian-ties-thaw-jack-straw- leads-parliamentary-delegation [Accessed 2 October 2018].

Der Derian, J., 1987. On Diplomacy: A Genealogy of Western Estrangement. Oxford: Blackwell.

Derrida, J., 1997. Of Grammatology. Trans.: Gayatri Chakravorty Spivak. Baltimore and London: The Johns Hopkins University Press.

Encyclopaedia Britannica, 2018. ‘Iraq War: 2003-2011’. Available from: https://www.britannica.com/event/Iraq-War [Accessed 2 October 2018].

Finlay, D. J., Fagen, R. R. and Holsti, O. R., 1967. Enemies in politics. Chicago, IL: Rand McNally.

Fisher, R. J., 1989. ‘Prenegotiation Problem-Solving Discussions: Enhancing the Potential for Successful Negotiation’. International Journal, 44(2), 442-474.

Foucault, M., 1977. Discipline and Punish. Trans: Alan Sheridan. New York: Pantheon Books.

Foucault, M., 1980. Power/Knowledge: Selected interviews and other writings, 1972- 1977. New York: Pantheon Books.

Giddens, A., 1981., A Contemporary Critique of Historical Materialism, Vol. 1. London: Macmillan.

220

Gioia, D. A., Corley, K. G. and Hamilton, A. L., 2012. ‘Seeking Qualitative Rigor in Inductive Research: Notes on the Gioia Methodology’. Organizational Research Methods, 16(1), 15-31

Gramsci, A., 1971. Selections form the Prison Notebook. Trans: Quintin Hoare and Geoffrey Nowell Smith. London: Lawrence and Wishart.

Gray, C., 2011. ‘President Obamas’ 2010 United States national security strategy and international law on the use of force’. Chinese Journal of International Law, 10(1), 35- 53.

Haas, P., 1992. ‘Introduction: epistemic communities and international policy coordination’. International Organization. 46(1), 1-35.

Hall, S., 1980a. ‘Introduction to Media Studies at the Centre’. In: S. Hall, D. Hobson, A. Lowe and P. Willis, eds., Culture, Media, Language: Working Papers in Cultural Studies, 1972-79. London and New York: Routledge.

Hall, S., 1980b. ‘Encoding/Decoding’. In: S. Hall, D. Hobson, A. Lowe and P. Willis, eds., Culture, Media, Language: Working Papers in Cultural Studies, 1972-79. London: Hutchinson, 128–138.

Hansen, L., 2011. ‘Performing practices: a poststructuralist analysis of the Muhammad cartoon crisis’. In: E. Adler and V. Pouliot, eds., International Practices: Cambridge Studies in International Relations. Cambridge: Cambridge University Press, 280-306.

Hinnebusch, R., 2007. ‘The US Invasion of Iraq: Explanations and Implications’. Critique: Critical Middle Eastern Studies, 16(3), 209-228.

Holmes, O. and Borger, J., 2018. ‘Nuclear deal: Netanyahu accuses Iran of cheating on agreement’. The Guardian. Available from: https://www.theguardian.com/world/2018/apr/30/netanyahu-accuses-iran- cheating-nuclear-deal [Accessed 1 October 2018].

Hoogwaerts, L., 2012. ‘What role do museums and art institutions play in international relations today and specifically in the development of what Joseph Nye called “soft power”?’. London: Institute for Cultural Diplomacy. Available from: http://www.culturaldiplomacy.org/academy/content/pdf/participant-papers/2012- 08-acd/what-role-do-museums-and-a [Accessed 2 October 2018].

Hook, B., 2018. ‘Brian Hook’s Written Remarks’. Hudson Institute. Available from: https://www.hudson.org/research/14577-brian-hook-s-written-remarks [Accessed 1 October 2018].

Hoyle, B., 2011. ‘How the Cyrus Cylinder brought the UK and Iran together’. The Times. Available from: https://www.thetimes.co.uk/article/how-the-cyrus-cylinder-brought- the-uk-and-iran-together-tl9x2fk8d6m [Accessed 2 October 2018].

Huntington, S. P., 1993. ‘The Clash of Civilizations?’. Foreign Affairs, 72(3), 22-49.

221

Ikenberry, J. G. and Kupchan, C. A., 1990. ‘Socialization and Hegemonic Power’. International Organization, 44(3), 283-315.

Iriye, Akira. 1997. Cultural Internationalism and World Order. Baltimore, MD: Johns Hopkins University Press.

Iriye, A. 2004. “Culture and International History.” In: Michael J. Hogan and Thomas G. Patterson, eds., Explaining the History of American Foreign Relations. Cambridge: Cambridge University Press, 241-256.

Jervis, R., 1976. Perception and Misperception in International Politics. Princeton, N.J.: Princeton University Press.

Jones, J., 2005. ‘The evil empire’. The Guardian. Available from: https://www.theguardian.com/artanddesign/2005/sep/08/architecture [Accessed 29 September 2018].

Kelman, H. C., 1990. ‘Applying a Human Needs Perspective to the Practice of Conflict Resolution: The Israeli-Palestinian Case’. In: J. Burton, ed., Conflict: Human Needs Theory. London: The Macmillan Press, 283-297.

Kim, H., 2017. ‘Bridging the Theoretical Gap between Public Diplomacy and Cultural Diplomacy’. The Korean Journal of International Studies, 15(2), 293-326.

Kissinger, H. A., 1960. Necessity for choice: prospects for American foreign policy.

Leonard, M., Stead, C. and Smewing, C., 2002. Public Diplomacy. London: Foreign Policy Centre.

Littoz-Monnet, A., 2017. The Politics of Expertise in International Organisations: How International Bureaucracies Produce and Mobilize Knowledge. London and New York: Routledge.

Mark, S. L., 2010. ‘Rethinking Cultural Diplomacy: the Cultural Diplomacy of New Zealand, the Canadian Federation and Quebec’. Political Science, 62(1), 62-83.

Melissen, J., 2005. The New Public Diplomacy: Soft Power in International Relations. New York: Palgrave Macmillan

Mitchell, J., 1986. ‘International Cultural Relations’, Vol. 3. Key Concepts in International Relations Series. London: Allen and Unwin.

Morgenthau, H. J., 1960. Politics Among Nations: The Struggle for Power and Peace. 3rd ed. New York: Alfred A. Knopf.

Nisbett, M., 2013. ‘New perspectives on instrumentalism: An empirical study of cultural diplomacy’. International Journal of Cultural Policy, 19(5), 557-575.

Nomikou, E., 2015. ‘Museology without a Prefix: Some Thoughts on the Epistemology and Methodology of an Integrated Approach’. ICOFOM Study Series, 43(a), 203-215.

222

Nye, J. S., Jr., 2008. ‘Public Diplomacy and Soft Power’. The Annals of the American Academy of Political and Social Science, 616(1), 94-109.

Plesch, D. and Christiansen, P. E., 2008. ‘A weapons of mass destruction free zone in the middle east: Reflections on a project of academic applied international relations’. International Relations, 22(3), 391-396.

Pouliot, V. and Cornut, J., 2015. ‘Practice theory and the study of diplomacy: A research agenda’. Cooperation and Conflict, 50(3), 297-315.

Razmjou, S., 2005. ‘Persia was not an evil empire’. The Guardian. Available from: https://www.theguardian.com/artanddesign/2005/sep/08/architecture [Accessed 29 September 2018].

Razmjou, S., 2013. ‘The Cyrus Cylinder: a Persian perspective’. In: I. Finkel, ed., The Cyrus Cylinder: The King of Persia's Proclamation from Ancient Babylon. London: I.B. Tauris, 104-125.

Sanadjian, M., 2011. ‘Islamic rule and the pre-Islamic blessing, the “homecoming” of the Cyrus Cylinder’. Dialectical Anthropology, 35(4), 459-474.

Schatzki, T. R., Knorr Cetina, K. and Savigny Von, E., 2001. The Practice Turn in Contemporary Theory. Routledge: London and New York.

Settis, S., 2006. The Future of the ‘Classical’. Trans. by Allan Cameron. Cambridge: Polity Press.

Sewell Jr., J, 1992. ‘A Theory of Structure: Duality, Agency, and Transformation’. American Journal of Sociology, 91(8), 1-29.

Sheiki, M. 2018. ‘US running a real risk to international trading system’. Mehr News. Available from: https://en.mehrnews.com/news/138209/US-running-a-real-risk-to- international-trading-system [Accessed 3 October 2018]

Snow, J., 2012. ‘Time to Rethink Iran?’. London: Chatham House. Available from: https://www.chathamhouse.org/publications/papers/view/184269 [Accessed 5 August 2018].

Stein, J. G., 1989. ‘Prenegotiation in the Arab-Israeli Conflict: The Paradoxes and of Success and Failure’. International Journal, 44(2), 410-441.

Swidler, A., 2001. ‘What anchors cultural practices’. In: K. K. Cetina, T. R. Schatzki and E. V. Savigny, eds., The practice turn in contemporary theory. London and New York: Routledge, 74-92.

Tuch, H., 1990. Communicating with the World: US Public Diplomacy Overseas. New York: St. Martin's

Uk in Iran, 2018. Twitter. Available from: https://twitter.com/UKinIran/status/1044243177979486208 [Accessed 6 October 2018]. 223

United Nations, 2018. ‘Joint Comprehensive Plan of Action on Iran Nuclear Issue at Crossroads 3 Years Later, Under-Secretary-General for Political Affairs Tells Security Council’. Report SC/13398. Available from: https://www.un.org/press/en/2018/sc13398.doc.htm

Villanueva, C., 2007. Representing Cultural Diplomacy: Soft Power, Cosmopolitan Constructi- vism and Nation Branding in Mexico and Sweden. Växjö: Växjö University Press.

Waltz, K. N., 1979. Theory of International Politics. New York: McGrew Hill.

Waltz, K. N., 2012. ‘Why Iran should get the bomb’. Foreign Affairs, 91(4), 1-5.

Wheeler, N. J., 2013. ‘Investigating diplomatic transformations’. International Affairs, 89(2), 477-496.

Wilson, J., 2010. ‘British Museum in battle with Iran over ancient 'charter of rights'’. The Guardian. Available from: https://www.theguardian.com/science/2010/jan/24/cyrus-cylinder-iran-museum- row [Accessed 29 September 2018].

Wastnidge, E., 2015. The Modalities of Iranian Soft Power: From Cultural Diplomacy to Soft War. Politics, 35(3-4), 364-377.

Williams, R., 1962. Communications. Harmondsworth: Penguin Books.

Wiseman, G., 1999. ‘Polylateralism’ and New Modes of Global Dialogue. Discussion Papers No. 59. Leicester: Leicester Diplomatic Studies Programme.

Zamorano, M. M., 2016. ‘Reframing Cultural Diplomacy: The Instrumentalization of Culture under the Soft Power Theory’. Culture Unbound: Journal of Current Cultural Research, 8(2), 165-186.

Zehfuss, M., 2013. ‘Critical Theory, Poststructuralism, and Postcolonialism’. In: W. Carlsnaes, T. Risse and B. A. Simmons, eds., Handbook of International Relations. 2nd ed. London: Sage, 145-169.

224