Indian Bankruptcy Reform: Where We Are And Where We Go Next.
Background:-
Bubble and burst are platonic partners.They are akin to any other pair of platonic coupling , such as – high-low, dark-dawn,success-failure etc.There is only two facets of any risk , especially in case of entrepreneurial risk – Few will succeed and many will fail.This happened in the 1990s dotcom boom.India is staring at two probables of success and failure of entrepreneurship and especially given it’s recent push for more entrepreneurship ,we will soon have our own version of bubble and burst.
There is nothing bullish or bearish about it- it is just , plain reality and proper channel to deal with it is thus essential.
As India unleashes its entrepreneurial capabilities in its run up to waking the sleeping giant , we are soon going to have our own bitter-sweet experience of bubble and burst.Few will certainly succeed , many will fail – No one knows for sure , who is who though , but then again that is the beauty of risk – Nobody is ever sure.Failure usually strikes at the very unfortunate moments and when companies go bust , they tend to disrupt normal lives and the world of its employees are shaken – recall the Satyam aftermath.
So , as reality of failure stares at us, it is quite-essential that, India should build a certain institutional mechanism to deal with it , not only to give a proper winding up mechanism but also to deal with the domino effect that ensues failure.In this prospect, a perfect Bankruptcy bill is the need of the hour and a critical analysis is thus called for.
Analysis:-
All business plans are speculative views of the future. Some will inevitably go wrong, either because of failures of conception or of execution. As India lacks the requisite institutional arrangements, at present, when a firm goes into default, the management, capital and labor get stuck in an interminable mess. With a sound bankruptcy process, we would be able to rapidly resolve the situation, and everyone would move on.
In India, the lack of a sound bankruptcy process implies a flawed legal foundation of limited liability companies. The classic definition of limited liability is a bargain: Equity is in charge of the company as long as all dues to Debt are met. When the firm defaults on its debt obligations, control over the assets of the firm shifts from Equity to Debt. This is not how India understands limited liability today. We tend to think that a company belongs to its founding family no matter what happens by way of firm default.
From Bits and pieces of Bankruptcy to a full fledged Bankruptcy code:-
One component needed for bankruptcy reforms was built by the Financial Sector Legislative Reforms Commission (FSLRC), led by Justice Srikrishna from 2011 to 2013. The `resolution corporation’ in the draft `Indian Financial Code’ is a specialised bankruptcy process for two kinds of financial firms: those that make intense promises to consumers, and those that are systemically important.
This component has been slowly moving towards implementation, after MOF first setup a `Task Force’ on the subject, and then made an announcement the budget speech of February 2016. But the bankruptcy process for all other firms was a project waiting to be done. Some work on these lines went into the Companies Act, 2013, but it only partly dealt with the mechanisms of restructuring and winding up.
The Budget Speech in July 2014 had one sentence in Paragraph 106:
Entrepreneur friendly legal bankruptcy (sic) framework will also be developed for SMEs to enable easy exit.
This sentence could have been done in an incremental way. Instead, it was taken on a more ambitious scale at the Ministry of Finance (MOF) with a policy project that would go beyond just an SME bankruptcy framework for India. I
In late 2014, MOF setup the Bankruptcy Legislative Reforms Committee or the BLRC, led by TK. Viswanathan, with the objective of building a full-fledged bankruptcy code.
The work of the BLRC was placed in the FSLRC division of the Department of Economic Affairs (DEA), so as to harness the institutional memory about the working of FSLRC. The BLRC submitted a two volume report on 4 November 2015. The report is similar to the output of the FSLRC: the economic rationale and design features of a new legislative framework to resolve insolvency and bankruptcy.
After the IBC was tabled, the Joint Parliamentary Committee on Insolvency and Bankruptcy Code, 2015 (JPC) was set up on the same day to analyse the draft bill in detail. The JPC submitted its report which included a new draft of the law. This is the draft Insolvency and Bankruptcy Code (IBC) that has since been passed by both houses of Parliament.
The essence of the BLRC proposal is a formal procedure, termed the `insolvency resolution process’ (IRP) which starts when a firm or an individual defaults on any credit contract. Any creditor is empowered to initiate an IRP: a financial firm or an operational creditor whether it is a non-financial firm or an employee. An insolvency professional (IP) called the `resolution professional’ (RP) manages the working of the IRP, and is responsible for compliance with the law.
Once the IRP commences, power shifts from shareholders/managers to the Committee of Creditors. This includes the power to take over management of the firm, the ability to change management, to bring in fresh financing, to ask for all information required in order to invite bids for commercial contracts, including from the existing creditors and debtor, to keep the enterprise going. Decisions are made by voting in the Committee of Creditors.
The process of resolving insolvency is similar for firms and for individuals. In the case of individuals, however, the final resolution plan must have the consent of the debtor. There are additional innovations in the process of individual insolvency in the IBC that will increase individual default resolution efficiency in India. One is the concept of the Fresh Start, which gives a debt write-off for individuals who are below certain thresholds of wealth and income at the time of default.
The reading of the law reveals seven areas of concern:
1. Precision of language.
2. The working of the regulator.
3. Information utilities.
4. Insolvency profession Provisions.
5. Forbearance.
6. Judicial infrastructure and
7. Transition issues.
That Parliament has passed the law is a major step forward. However, in and of itself, this does not yield success in the sense of getting to the desired economic outcomes. While some elements of the process that led up to this law were well done, in many respects, there were shortcomings compared with the 11 principles of sound process design for drafting of laws. The IBC, 2016, is an important milestone, an important way station in the long journey of Indian bankruptcy reform. But it does not, in and of itself, deliver an improved bankruptcy process for India. Now, seven areas of work are required.
Conclusion
The BLRC process, and the law enacted by Parliament, are major milestones in India’s economic reform. However, they are the beginning of the journey to bankruptcy reform and not the destination.
What would constitute tangible proof of success in Indian bankruptcy reform? Two events and four key data series define the report card for this.
Event 1. When a default of a Rs.10 billion firm takes place, it swiftly goes into the bankruptcy process, which leads to a transaction where the firm is sold as a going concern to a new strategic buyer or a private equity fund, and a good recovery rate is obtained by the lenders.
Event 2. When a default by a Rs.10 billion firm takes place, the firm gets smoothly put into liquidation within a short time, and a good recovery rate is obtained by the lenders.
Four key measures. Successful bankruptcy reform should mean an increase in four measures through time:
- The leverage of firms (holding business risk constant),
- The share of borrowing from the financial system in the total debt of firms.
- The share of non-bank borrowing in borrowing from the financial system.
- The share of unsecured borrowing in total debt.
On all four metrics, things in India have become worse over the 1990-2013 period. But a strong team, with focus and competence, is needed to work on these issues, and this could yield success in a few years.
Welcome the success but have the courage to hug the failure.And on the later Bankruptcy rests its weight- the swifter , smooth and better managed exit without dominoes is the key for the bill to succeed. It had to succeed in managing failures-that’s the irony.
Recent Posts
- Floods
- Cyclones
- Tornadoes and hurricanes (cyclones)
- Hailstorms
- Cloudburst
- Heat wave and cold wave
- Snow avalanches
- Droughts
- Sea erosion
- Thunder/ lightning
- Landslides and mudflows
- Earthquakes
- Large fires
- Dam failures and dam bursts
- Mine fires
- Epidemics
- Pest attacks
- Cattle epidemics
- Food poisoning
- Chemical and Industrial disasters
- Nuclear
- Forest fires
- Urban fires
- Mine flooding
- Oil Spill
- Major building collapse
- Serial bomb blasts
- Festival related disasters
- Electrical disasters and fires
- Air, road, and rail accidents
- Boat capsizing
- Village fire
- Coastal States, particularly on the East Coast and Gujarat are vulnerable to cyclones.
- 4 crore hectare landmass is vulnerable to floods
- 68 per cent of net sown area is vulnerable to droughts
- 55 per cent of total area is in seismic zones III- V, hence vulnerable to earthquakes
- Sub- Himalayan sector and Western Ghats are vulnerable to landslides.
- Mainstreaming of Disaster Risk Reduction in Developmental Strategy-Prevention and mitigation contribute to lasting improvement in safety and should beintegrated in the disaster management. The Government of India has adopted mitigation and prevention as essential components of their development strategy.
- Mainstreaming of National Plan and its Sub-Plan
- National Disaster Mitigation Fund
- National Earthquake Risk Mitigation Project (NERMP)
- National Building Code (NBC):- Earthquake resistant buildings
- National Cyclone Risk Mitigation Project (NCRMP)
- Integrated Coastal Zone Management Project (ICZMP)-The objective of the project is to assist GoI in building the national capacity for implementation of a comprehensive coastal management approach in the country and piloting the integrated coastal zone management approach in states of Gujarat, Orissa and West Bengal.
- National Flood Risk Mitigation Project (NFRMP)
- National Project for Integrated Drought Monitoring & Management
- National Vector Borne Diseases Control Programme (NVBDCP)- key programme
for prevention/control of outbreaks/epidemics of malaria, dengue, chikungunya etc., vaccines administered to reduce the morbidity and mortality due to diseases like measles, diphtheria, pertussis, poliomyelitis etc. Two key measures to prevent/control epidemics of water-borne diseases like cholera, viral hepatitis etc. include making available safe water and ensuring personal and domestic hygienic practices are adopted. - Training
- Education
- Research
- Awareness
- Hyogo Framework of Action- The Hyogo Framework of Action (HFA) 2005-2015 was adopted to work globally towards sustainable reduction of disaster losses in lives and in the social, economic and environmental assets of communities and countries.
- United Nations International Strategy for Disaster Reduction (UNISDR)-In order to build the resilience of nations and communities to disasters through the implementation of the HFA , the UNISDR strives to catalyze, facilitate and mobilise the
commitment and resources of national, regional and international stakeholders of the ISDR
system. - United Nation Disaster Management Team (UNDMT) –
- To ensure a prompt, effective and concerted country-level support to a governmental
response in the event of a disaster, at the central, state and sub-state levels, - To coordinate UN assistance to the government with respect to long term recovery, disaster mitigation and preparedness.
- To coordinate all disaster-related activities, technical advice and material assistance provided by UN agencies, as well as to take steps for optimal utilisation of resources by UN agencies.
- To ensure a prompt, effective and concerted country-level support to a governmental
- Global Facility for Disaster Risk Reduction (GFDRR):-
- GFDRR was set up in September 2006 jointly by the World Bank, donor partners (21countries and four international organisations), and key stakeholders of the International Strategy for Disaster Reduction (UN-ISDR). It is a long-term global partnership under the ISDR system established to develop and implement the HFA through a coordinated programme for reversing the trend in disaster losses by 2015.
- Its mission is to mainstream disaster reduction and climate change adaptation in a country’s development strategies to reduce vulnerability to natural hazards.
- ASEAN Region Forum (ARF)
- Asian Disaster Reduction Centre (ADRC)
- SAARC Disaster Management Centre (SDMC)
- Program for Enhancement of Emergency Response (PEER):-The Program for Enhancement of Emergency Response (PEER) is a regional training programme initiated in 1998 by the United States Agency for International Development’s, Office of U.S Foreign Disaster Assistance (USAID/OFDA) to strengthen disaster response capacities in Asia.
- Policy guidelines at the macro level that would inform and guide the preparation and
implementation of disaster management and development plans across sectors - Building in a culture of preparedness and mitigation
- Operational guidelines of integrating disaster management practices into development, and
specific developmental schemes for prevention and mitigation of disasters - Having robust early warning systems coupled with effective response plans at district, state
and national levels - Building capacity of all stakeholders
- Involving the community, NGOs, CSOs and the media at all stages of DM
- Addressing gender issues in disaster management planning and developing a strategy for
inclusive approach addressing the disadvantaged sections of the society towards disaster risk reduction. - Addressing climate risk management through adaptation and mitigation
- Micro disaster Insurance
- Flood Proofing
- Building Codes and Enforcement
- Housing Design and Finance
- Road and Infrastructure
A disaster is a result of natural or man-made causes that leads to sudden disruption of normal life, causing severe damage to life and property to an extent that available social and economic protection mechanisms are inadequate to cope.
The International Strategy for Disaster Reduction (ISDR) of the United Nations (U.N.) defines a hazard as “a potentially damaging physical event, phenomenon or human activity that may cause the loss of life or injury, property damage, social and economic disruption or environmental degradation.”
Disasters are classified as per origin, into natural and man-made disasters. As per severity, disasters are classified as minor or major (in impact). However, such classifications are more academic than real.
High Powered Committee (HPC) was constituted in August 1999 under the chairmanship of J.C.Pant. The mandate of the HPC was to prepare comprehensive model plans for disaster management at the national, state and district levels.
This was the first attempt in India towards a systematic comprehensive and holistic look at all disasters.
Thirty odd disasters have been identified by the HPC, which were grouped into the following five categories, based on generic considerations:-
Water and Climate Related:-
Geological:-
Biological:-
Chemical, industrial and nuclear:-
Accidental:-
India’s Key Vulnerabilities as articulated in the Tenth Plan, (2002-07) are as follows:
Vulnerability is defined as:-
“the extent to which a community, structure, service, or geographic area is likely to be damaged or disrupted by the impact of particular hazard, on account of their nature, construction and proximity to hazardous terrain or a disaster prone area”.
The concept of vulnerability therefore implies a measure of risk combined with the level of social and economic ability to cope with the resulting event in order to resist major disruption or loss.
Example:- The 1993 Marathwada earthquake in India left over 10,000 dead and destroyed houses and other properties of 200,000 households. However, the technically much more powerful Los Angeles earthquake of 1971 (taken as a benchmark in America in any debate on the much-apprehended seismic vulnerability of California) left over 55 dead.
Physical Vulnerability:-
Physical vulnerability relates to the physical location of people, their proximity to the hazard zone and standards of safety maintained to counter the effects.
The Indian subcontinent can be primarily divided into three geophysical regions with regard to vulnerability, broadly, as, the Himalayas, the Plains and the Coastal areas.
Socio-economic Vulnerability:-
The degree to which a population is affected by a calamity will not purely lie in the physical components of vulnerability but in contextual, relating to the prevailing social and economic conditions and its consequential effects on human activities within a given society.
Global Warming & Climate Change:-
Global warming is going to make other small local environmental issues seemingly insignificant, because it has the capacity to completely change the face of the Earth. Global warming is leading to shrinking glaciers and rising sea levels. Along with floods, India also suffers acute water shortages.
The steady shrinking of the Himalayan glaciers means the entire water system is being disrupted; global warming will cause even greater extremes. Impacts of El Nino and La Nina have increasingly led to disastrous impacts across the globe.
Scientifically, it is proven that the Himalayan glaciers are shrinking, and in the next fifty to sixty years they would virtually run out of producing the water levels that we are seeing now.
This will cut down drastically the water available downstream, and in agricultural economies like the plains of Uttar Pradesh (UP) and Bihar, which are poor places to begin with. That, as one may realise, would cause tremendous social upheaval.
Urban Risks:-
India is experiencing massive and rapid urbanisation. The population of cities in India is doubling in a period ranging just two decades according to the trends in the recent past.
It is estimated that by 2025, the urban component, which was only 25.7 per cent (1991) will be more than 50 per cent.
Urbanisation is increasing the risks at unprecedented levels; communities are becoming increasingly vulnerable, since high-density areas with poorly built and maintained infrastructure are subjected to natural hazards, environmental degradation, fires, flooding and earthquake.
Urbanisation dramatically increases vulnerability, whereby communities are forced to squat on environmentally unstable areas such as steep hillsides prone to landslide, by the side of rivers that regularly flood, or on poor quality ground, causing building collapse.
Most prominent amongst the disasters striking urban settlements frequently are, floods and fire, with incidences of earthquakes, landslides, droughts and cyclones. Of these, floods are more devastating due to their widespread and periodic impact.
Example: The 2005 floods of Maharashtra bear testimony to this. Heavy flooding caused the sewage system to overflow, which contaminated water lines. On August 11, the state government declared an epidemic of leptospirosis in Mumbai and its outskirts.
Developmental activities:-
Developmental activities compound the damaging effects of natural calamities. The floods in Rohtak (Haryana) in 1995 are an appropriate example of this. Even months after the floodwaters had receded; large parts of the town were still submerged.
Damage had not accrued due to floods, but due to water-logging which had resulted due to peculiar topography and poor land use planning.
Disasters have come to stay in the forms of recurring droughts in Orissa, the desertification of swaths of Gujarat and Rajasthan, where economic depredations continuously impact on already fragile ecologies and environmental degradation in the upstream areas of Uttar Pradesh and Bihar.
Floods in the plains are taking an increasing toll of life, environment, and property, amplified by a huge population pressure.
The unrestricted felling of forests, serious damage to mountain ecology, overuse of groundwater and changing patterns of cultivation precipitate recurring floods and droughts.
When forests are destroyed, rainwater runs off causing floods and diminishing the recharging of groundwater.
The spate of landslides in the Himalayas in recent years can be directly traced to the rampant deforestation and network of roads that have been indiscriminately laid in the name of development.
Destruction of mangroves and coral reefs has increased the vulnerability of coastal areas to hazards, such as storm surges and cyclones.
Commercialisation of coastal areas, particularly for tourism has increased unplanned development in these areas, which has increased disaster potential, as was demonstrated during the Tsunami in December 2004.
Environmental Stresses:- " Delhi-Case Study"
Every ninth student in Delhi’s schools suffers from Asthma. Delhi is the world’s fourth most polluted city.
Each year, poor environmental conditions in the city’s informal areas lead to epidemics.
Delhi has one of the highest road accident fatality ratios in the world. In many ways, Delhi reflects the sad state of urban centers within India that are exposed to risks, which are misconstrued and almost never taken into consideration for urban governance.
The main difference between modernism and postmodernism is that modernism is characterized by the radical break from the traditional forms of urban architecture whereas postmodernism is characterized by the self-conscious use of earlier styles and conventions.
Illustration of Disaster Cycle through Case Study:-
The processes covered by the disaster cycle can be illustrated through the case of the Gujarat Earthquake of 26 January 2001. The devastating earthquake killed thousands of people and destroyed hundreds of thousands of houses and other buildings.
The State Government as well as the National Government immediately mounted a largescale relief operation. The help of the Armed Forces was also taken.
Hundreds of NGOs from within the region and other parts of the country as well as from other countries of the world came to Gujarat with relief materials and personnel to help in the relief operations.
Relief camps were set up, food was distributed, mobile hospitals worked round the clock to help the injured; clothing, beddings, tents, and other commodities were distributed to the affected people over the next few weeks.
By the summer of 2001, work started on long-term recovery. House reconstruction programmes were launched, community buildings were reconstructed, and damaged infrastructure was repaired and reconstructed.
Livelihood programmes were launched for economic rehabilitation of the affected people.
In about two year’s time the state had bounced back and many of the reconstruction projects had taken the form of developmental programmes aiming to deliver even better infrastructure than what existed before the earthquake.
Good road networks, water distribution networks, communication networks, new schools, community buildings, health and education programmes, all worked towards developing the region.
The government as well as the NGOs laid significant emphasis on safe development practices. The buildings being constructed were of earthquake resistant designs.
Older buildings that had survived the earthquake were retrofitted in large numbers to strengthen them and to make them resistant to future earthquakes. Mason and engineer training programmes were carried out at a large scale to ensure that all future construction in the State is disaster resistant.
This case study shows how there was a disaster event during the earthquake, followed by immediate response and relief, then by recovery including rehabilitation and retrofitting, then by developmental processes.
The development phase included mitigation activities, and finally preparedness actions to face future disasters.
Then disaster struck again, but the impact was less than what it could have been, primarily due to better mitigation and preparedness efforts.
Looking at the relationship between disasters and development one can identify ‘four’ different dimensions to this relation:
1) Disasters can set back development
2) Disasters can provide development opportunities
3) Development can increase vulnerability and
4) Development can reduce vulnerability
The whole relationship between disaster and development depends on the development choice made by the individual, community and the nation who implement the development programmes.
The tendency till now has been mostly to associate disasters with negativities. We need to broaden our vision and work on the positive aspects associated with disasters as reflected below:
1)Evolution of Disaster Management in India
Disaster management in India has evolved from an activity-based reactive setup to a proactive institutionalized structure; from single faculty domain to a multi-stakeholder setup; and from a relief-based approach to a ‘multi-dimensional pro-active holistic approach for reducing risk’.
Over the past century, the disaster management in India has undergone substantive changes in its composition, nature and policy.
2)Emergence of Institutional Arrangement in India-
A permanent and institutionalised setup began in the decade of 1990s with set up of a disaster management cell under the Ministry of Agriculture, following the declaration of the decade of 1990 as the ‘International Decade for Natural Disaster Reduction’ (IDNDR) by the UN General Assembly.
Consequently, the disaster management division was shifted under the Ministry of Home Affairs in 2002
3)Disaster Management Framework:-
Shifting from relief and response mode, disaster management in India started to address the
issues of early warning systems, forecasting and monitoring setup for various weather related
hazards.
National Level Institutions:-National Disaster Management Authority (NDMA):-
The National Disaster Management Authority (NDMA) was initially constituted on May 30, 2005 under the Chairmanship of Prime Minister vide an executive order.
SDMA (State Level, DDMA(District Level) also present.
National Crisis Management Committee (NCMC)
Legal Framework For Disaster Management :-
DMD- Disaster management Dept.
NIDM- National Institute of Disaster Management
NDRF – National Disaster Response Fund
Cabinet Committee on Disaster Management-
Location of NDRF Battallions(National Disaster Response Force):-
CBRN- Chemical, Biological, Radiological and Nuclear
Policy and response to Climate Change :-
1)National Action Plan on Climate Change (NAPCC)-
National Action Plan on Climate Change identified Eight missions.
• National Solar Mission
• National Mission on Sustainable Habitat
• National Mission for Enhanced Energy Efficiency
• National Mission for Sustaining The Himalayan Ecosystem
• National Water Mission
• National Mission for Green India
• National Mission for Sustainable Agriculture
• National Mission for Strategic Knowledge on Climate Change
2)National Policy on Disaster Management (NPDM),2009-
The policy envisages a safe and disaster resilient India by developing a holistic, proactive, multi-disaster oriented and technologydriven strategy through a culture of prevention, mitigation, preparedness and response. The policy covers all aspects of disaster management including institutional and legal arrangements,financial arrangements, disaster prevention, mitigation and preparedness, techno-legal regime, response, relief and rehabilitation, reconstruction and recovery, capacity development, knowledge management, research and development. It focuses on the areas where action is needed and the institutional mechanism through which such action can be channelised.
Prevention and Mitigation Projects:-
Early Warning Nodal Agencies:-
Post Disaster Management :-Post disaster management responses are created according to the disaster and location. The principles being – Faster Recovery, Resilient Reconstruction and proper Rehabilitation.
Capacity Development:-
Components of capacity development includes :-
National Institute for Capacity Development being – National Institute of Disaster Management (NIDM)
International Cooperation-
Way Forward:-
Principles and Steps:-
The United Nations has shaped so much of global co-operation and regulation that we wouldn’t recognise our world today without the UN’s pervasive role in it. So many small details of our lives – such as postage and copyright laws – are subject to international co-operation nurtured by the UN.
In its 75th year, however, the UN is in a difficult moment as the world faces climate crisis, a global pandemic, great power competition, trade wars, economic depression and a wider breakdown in international co-operation.
Still, the UN has faced tough times before – over many decades during the Cold War, the Security Council was crippled by deep tensions between the US and the Soviet Union. The UN is not as sidelined or divided today as it was then. However, as the relationship between China and the US sours, the achievements of global co-operation are being eroded.
The way in which people speak about the UN often implies a level of coherence and bureaucratic independence that the UN rarely possesses. A failure of the UN is normally better understood as a failure of international co-operation.
We see this recently in the UN’s inability to deal with crises from the ethnic cleansing of the Rohingya Muslims in Myanmar, to civil conflict in Syria, and the failure of the Security Council to adopt a COVID-19 resolution calling for ceasefires in conflict zones and a co-operative international response to the pandemic.
The UN administration is not primarily to blame for these failures; rather, the problem is the great powers – in the case of COVID-19, China and the US – refusing to co-operate.
Where states fail to agree, the UN is powerless to act.
Marking the 75th anniversary of the official formation of the UN, when 50 founding nations signed the UN Charter on June 26, 1945, we look at some of its key triumphs and resounding failures.
Five successes
1. Peacekeeping
The United Nations was created with the goal of being a collective security organisation. The UN Charter establishes that the use of force is only lawful either in self-defence or if authorised by the UN Security Council. The Security Council’s five permanent members, being China, US, UK, Russia and France, can veto any such resolution.
The UN’s consistent role in seeking to manage conflict is one of its greatest successes.
A key component of this role is peacekeeping. The UN under its second secretary-general, the Swedish statesman Dag Hammarskjöld – who was posthumously awarded the Nobel Peace prize after he died in a suspicious plane crash – created the concept of peacekeeping. Hammarskjöld was responding to the 1956 Suez Crisis, in which the US opposed the invasion of Egypt by its allies Israel, France and the UK.
UN peacekeeping missions involve the use of impartial and armed UN forces, drawn from member states, to stabilise fragile situations. “The essence of peacekeeping is the use of soldiers as a catalyst for peace rather than as the instruments of war,” said then UN Secretary-General Javier Pérez de Cuéllar, when the forces won the 1988 Nobel Peace Prize following missions in conflict zones in the Middle East, Africa, Asia, Central America and Europe.
However, peacekeeping also counts among the UN’s major failures.
2. Law of the Sea
Negotiated between 1973 and 1982, the UN Convention on the Law of the Sea (UNCLOS) set up the current international law of the seas. It defines states’ rights and creates concepts such as exclusive economic zones, as well as procedures for the settling of disputes, new arrangements for governing deep sea bed mining, and importantly, new provisions for the protection of marine resources and ocean conservation.
Mostly, countries have abided by the convention. There are various disputes that China has over the East and South China Seas which present a conflict between power and law, in that although UNCLOS creates mechanisms for resolving disputes, a powerful state isn’t necessarily going to submit to those mechanisms.
Secondly, on the conservation front, although UNCLOS is a huge step forward, it has failed to adequately protect oceans that are outside any state’s control. Ocean ecosystems have been dramatically transformed through overfishing. This is an ecological catastrophe that UNCLOS has slowed, but failed to address comprehensively.
3. Decolonisation
The idea of racial equality and of a people’s right to self-determination was discussed in the wake of World War I and rejected. After World War II, however, those principles were endorsed within the UN system, and the Trusteeship Council, which monitored the process of decolonisation, was one of the initial bodies of the UN.
Although many national independence movements only won liberation through bloody conflicts, the UN has overseen a process of decolonisation that has transformed international politics. In 1945, around one third of the world’s population lived under colonial rule. Today, there are less than 2 million people living in colonies.
When it comes to the world’s First Nations, however, the UN generally has done little to address their concerns, aside from the non-binding UN Declaration on the Rights of Indigenous Peoples of 2007.
4. Human rights
The Human Rights Declaration of 1948 for the first time set out fundamental human rights to be universally protected, recognising that the “inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”.
Since 1948, 10 human rights treaties have been adopted – including conventions on the rights of children and migrant workers, and against torture and discrimination based on gender and race – each monitored by its own committee of independent experts.
The language of human rights has created a new framework for thinking about the relationship between the individual, the state and the international system. Although some people would prefer that political movements focus on ‘liberation’ rather than ‘rights’, the idea of human rights has made the individual person a focus of national and international attention.
5. Free trade
Depending on your politics, you might view the World Trade Organisation as a huge success, or a huge failure.
The WTO creates a near-binding system of international trade law with a clear and efficient dispute resolution process.
The majority Australian consensus is that the WTO is a success because it has been good for Australian famers especially, through its winding back of subsidies and tariffs.
However, the WTO enabled an era of globalisation which is now politically controversial.
Recently, the US has sought to disrupt the system. In addition to the trade war with China, the Trump Administration has also refused to appoint tribunal members to the WTO’s Appellate Body, so it has crippled the dispute resolution process. Of course, the Trump Administration is not the first to take issue with China’s trade strategies, which include subsidises for ‘State Owned Enterprises’ and demands that foreign firms transfer intellectual property in exchange for market access.
The existence of the UN has created a forum where nations can discuss new problems, and climate change is one of them. The Intergovernmental Panel on Climate Change (IPCC) was set up in 1988 to assess climate science and provide policymakers with assessments and options. In 1992, the UN Framework Convention on Climate Change created a permanent forum for negotiations.
However, despite an international scientific body in the IPCC, and 165 signatory nations to the climate treaty, global greenhouse gas emissions have continued to increase.
Under the Paris Agreement, even if every country meets its greenhouse gas emission targets we are still on track for ‘dangerous warming’. Yet, no major country is even on track to meet its targets; while emissions will probably decline this year as a result of COVID-19, atmospheric concentrations of greenhouse gases will still increase.
This illustrates a core conundrum of the UN in that it opens the possibility of global cooperation, but is unable to constrain states from pursuing their narrowly conceived self-interests. Deep co-operation remains challenging.
Five failures of the UN
1. Peacekeeping
During the Bosnian War, Dutch peacekeeping forces stationed in the town of Srebrenica, declared a ‘safe area’ by the UN in 1993, failed in 1995 to stop the massacre of more than 8000 Muslim men and boys by Bosnian Serb forces. This is one of the most widely discussed examples of the failures of international peacekeeping operations.
On the massacre’s 10th anniversary, then UN Secretary General Kofi Annan wrote that the UN had “made serious errors of judgement, rooted in a philosophy of impartiality”, contributing to a mass murder that would “haunt our history forever”.
If you look at some of the other infamous failures of peacekeeping missions – in places such as Rwanda, Somalia and Angola – it is the limited powers given to peacekeeping operations that have resulted in those failures.
2. The invasion of Iraq
The invasion of Iraq by the US in 2003, which was unlawful and without Security Council authorisation, reflects the fact that the UN is has very limited capacity to constrain the actions of great powers.
The Security Council designers created the veto power so that any of the five permanent members could reject a Council resolution, so in that way it is programmed to fail when a great power really wants to do something that the international community generally condemns.
In the case of the Iraq invasion, the US didn’t veto a resolution, but rather sought authorisation that it did not get. The UN, if you go by the idea of collective security, should have responded by defending Iraq against this unlawful use of force.
The invasion proved a humanitarian disaster with the loss of more than 400,000 lives, and many believe that it led to the emergence of the terrorist Islamic State.
3. Refugee crises
The UN brokered the 1951 Refugee Convention to address the plight of people displaced in Europe due to World War II; years later, the 1967 Protocol removed time and geographical restrictions so that the Convention can now apply universally (although many countries in Asia have refused to sign it, owing in part to its Eurocentric origins).
Despite these treaties, and the work of the UN High Commission for Refugees, there is somewhere between 30 and 40 million refugees, many of them, such as many Palestinians, living for decades outside their homelands. This is in addition to more than 40 million people displaced within their own countries.
While for a long time refugee numbers were reducing, in recent years, particularly driven by the Syrian conflict, there have been increases in the number of people being displaced.
During the COVID-19 crisis, boatloads of Rohingya refugees were turned away by port after port. This tragedy has echoes of pre-World War II when ships of Jewish refugees fleeing Nazi Germany were refused entry by multiple countries.
And as a catastrophe of a different kind looms, there is no international framework in place for responding to people who will be displaced by rising seas and other effects of climate change.
4. Conflicts without end
Across the world, there is a shopping list of unresolved civil conflicts and disputed territories.
Palestine and Kashmir are two of the longest-running failures of the UN to resolve disputed lands. More recent, ongoing conflicts include the civil wars in Syria and Yemen.
The common denominator of unresolved conflicts is either division among the great powers, or a lack of international interest due to the geopolitical stakes not being sufficiently high. For instance, the inaction during the Rwandan civil war in the 1990s was not due to a division among great powers, but rather a lack of political will to engage.
In Syria, by contrast, Russia and the US have opposing interests and back opposing sides: Russia backs the government of the Syrian dictator Bashar al-Assad, whereas the US does not.
5. Acting like it’s 1945
The UN is increasingly out of step with the reality of geopolitics today.
The permanent members of the Security Council reflect the division of power internationally at the end of World War II. The continuing exclusion of Germany, Japan, and rising powers such as India and Indonesia, reflects the failure to reflect the changing balance of power.
Also, bodies such as the IMF and the World Bank, which are part of the UN system, continue to be dominated by the West. In response, China has created potential rival institutions such as the Asian Infrastructure Investment Bank.
Western domination of UN institutions undermines their credibility. However, a more fundamental problem is that institutions designed in 1945 are a poor fit with the systemic global challenges – of which climate change is foremost – that we face today.