Why does Europe have so few skyscrapers compared to East Asia?

Why does Europe have so few skyscrapers compared to East Asia?

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The European Union has virtually no skyscrapers except the newly built 'The Shard' in London. There are also a series of newly-built state-funded skyscrapers in Moscow.

On the other hand if you look at Hong-Kong, Shanghai, Singapore, Taipei, and Tokyo you will see the whole skyline full of skyscrapers. Why is it so?

South East Asia (SEA) isn't totally full of sky-scrapers-- just the wealthy cities like Hong Kong, Singapore, or Shen Zhen. What all these cities have in common is fast, recent growth and limited space. England or France, or many other European states have been developing for hundreds of years. 200 years ago, there was no technology for sky scrapers; so, none were built. Today, SEA has many sky scrapers because there is a near future lack of space, and because sky scrapers are now possible to build.

Technically, Tokyo, Hong-Kong, Shanghai, Shenzhen, Taipei, are NOT in South East Asia.

They are in Asia, which hosts 60% of the world's current human population.

Having 60% of the world's population seems like a valid reason to have a good proportion of the skyscrapers.

That being said, the small number of skyscrapers in Europe can not be denied. In many European cities (like Paris), construction of skyscrapers is forbidden or limited to particular places in the city periphery, in an attempt to preserve landscape.

Wikipedia says the Tour Montparnasse has been "often criticised for being out of place in Paris's urban landscape and, as a result, two years after its completion, the construction of skyscrapers in the city centre was banned."

Other places with similar rules, from the comments:

  • Philadelphia for a long time had an unwritten prohibition against building anything taller than the City Hall's tower
  • Munich had a rule until the 80ies (Yes 1980ies) against building anything taller than a church
  • DC also has a fairly strict height limit for buildings
  • London has rules about keeping the view of St Paul's unobstructed from certain points

To expand on NewAlexandria's answer:

Europe has a well developed planning and zoning regime. Obtaining planning approval for a building that is not in keeping with the existing stock is a long process that will usually meet with either failure or limitations on the design/ profile.

On of the reasons the shard is the shape it is was to prevent existing landmarks being overshadowed/ obscured on the skyline.

In Asia money talks.

In Germany employees have the right to daylight at their workplace. This is not easy in a skyscraper, which often has a huge core of rooms without any daylight. There might be some information in DIN EN 12464-1 Licht und Beleuchtung - Beleuchtung von Arbeitsstätten - Teil 1: Arbeitsstätten in Innenräume

If I want to occupy space in a major city I have three choices.

  1. Build a new skyscraper (possibly by proxy in the sense that I occupy space in a skyscraper built by someone else who was prepared to erect the building only because he anticipated my and others' demand for it).
  2. Occupy existing space in low-rise structures.
  3. Build new low-rise structures on greenfield sites outside of the existing city centre.

In Europe option 1 is considerably more expensive because (i) the cities are already developed and so it is necessary to find or create brownfield space of sufficient size for the construction project, and (ii) planning laws are often more restrictive than in Asia/N. America. This naturally compels people do do more of 2 and 3.

By contrast, many of the great skyscraper cities such as New York, Tokyo, and Shanghai only commenced there phase of rapid development whilst/after skyscraper construction techniques had been introduced. As such, builders in those places were faced with a relative abundance of un(der)-developed space on which to build. Also, many of the world's biggest skyscraper cities (New york, Tokyo, Hong Kong) are naturally bounded (e.g. by the shores of Manhattan Island) which limits the possibility of choosing option 3.

More recently, cities like London have seen a renewed interest in the construction of tall buildings. This has come about as a consequence of a ~2000-2007 property boom that has made land space more expensive. As land prices increase, option 1 from the list becomes more attractive relative to the others because a skysraper creates more space per unit of land occupied.

Pragmatically, because:

  1. Europe has a long history of great architecture, which is preserved even in the face of modern developments.
  2. the density of existing metro spaces makes it difficult to site a major project where it will get the appropriate attention. If there is space for it, it may be too far away from the metro centers
  3. skyscrapers aint all that, baby (architectural appreciation, for many Europeans, does not have the skyscraper as its sole effigy.)

Legally in England, there is the law of "Right to Light" In short this means that existing buildings have an expectation that their natural light will be preserved by later developmnts, ie putting up a skyscraper next to my house would be a criminal act.

There are a couple of factors here I haven't seen mentioned:

  • Skyscrapers are generally office buildings, often owned by a single company. Asian skyscrapers often mean to represent economical success of a company.

  • Buildings in countries like Japan are generally built for short term, couple of decades, no more. Also, centralized policy on architecture is rather weak. If you have a land somewhere, you can build there prety much whatever you want, and you do it every 30-40 years, so naturally many building will be ultramodern. European countries have strict regulations on what you can built, and major architectural projects esp in downtown are not one company shows.

  • Many of the said cities are dynamically growing both in economy and in population. HKG, Singapore, Shanghai, Tokyo are big cities with much more money to spend and much more need for office space and sometimes living spaces. Tokyo itself has larger population than half of the EU countries, and land prices rivaling London's. Shanghai has far bigger economic growth than anything in Europe in the last couple of decades.

Generally skyscrapers are build near the centre of the city. In many cities, the centre is merely historical and since some time, people prefer to conserve historical buildings. In Europe, if the city centres' buildings survived the history, they are preserved and there is not much space for anything else. So in Europe, skyscrapers are sometimes outside the actual centre (Paris, Prague… ) - and so just few of them as they are not enough efficient too far from the centre. But e.g. in cities heavily damaged in WWII, skyscrapers are often also in the centre (often limited by some regulations): London, Berlin, Warsaw… as there was plenty of space for new development in/near the core of the city.

There is no general answer; each reason has its own answer.

Japan has a high population density and limited arable land, so the evolution of a mega-city like Tokyo with skyscrapers is a technical solution to a national challenge.

Singapore and Hong Kong have a limited amount of land; the only option for increasing space was to grow up.

China is undergoing urbanization right now; housing must be built for all the rural residents who are migrating to the cities. China also has central planning, and for several reasons, favors the construction of large, densely populated cities instead of suburban sprawl. It is interesting to travel from Beijing out of the city for example, just a moment passes and there are only farms and villages.

For Taipei and Kuala Lumpur, I am not so familiar with the real estate dynamics.

I think in Europe - Germany, for example - the growth of small towns was more prevalent when urbanization occurred. I don't know much about European Urbanization plans, but I think the distribution of political control was such that smaller cities were favored over large cities.

I agree with TylerDurden, but just to elaborate a little on the politics of the matter.

One, most European countries are vibrant democracies. Thus, nimby-ists, sentimentalists, incumbent property owners, environmentalists, and the like have greater opportunity to veto any new developments. So, like TylerDurden says, these guys don't really have much of a say.

Two, Europe has a much greater share of nimby-ists, sentimentalists, incumbent property owners, environmentalists, and the like.

So for example, even if China were a vibrant democracy, there are far fewer sentimentalists who would protest against the construction of a skyscraper next to say the Forbidden Palace. Also, for obvious reasons, there are also far fewer incumbent property owners who have an interest in blocking the increase in the supply of office/housing space.

Three, even compared to the US, Europe has a much stronger anti-capitalist/sentimentalist spirit. And in Asia the pro-capitalist/pragmatist spirit is probably even stronger than in the US. If a tall building means everyone will be richer, people in Asia will support it, while Europeans will think of all sorts of reasons to oppose it.

Based on the above arguments, it is perhaps not surprising that the European city with the most skyscrapers is Moscow (31). (Wikipedia) Second is Istanbul (28).

A distant third is Paris (18) and fourth is London (15) where property prices are ridiculously high and, if run by Chinese/Singaporean technocrats or HK free-marketeers, would have far more skyscrapers.

Just to correct a couple of mistakes:

(1) East Asia doesn't represent 60% of the world's population, more like 20%…


(3) Europe doesn't have a skyscraper culture. United States was a bold brand new capitalist state back in the 20th century, now it's China, that is extremely bold and liberal (in terms of capitalism), I'm not saying China is a free democratic country, it's not, it's authoritarian, like Singapore, BUT, IT'S EXTREMELY LIBERAL CAPITALIST.

Agreeing or at least taking into consideration everything said here before me, I would like to give my answer to the question.

First, have you ever been impressed by the skyscraper? I suppose you did, like everybody else. This is because the thing is really impressive, it is huge, it goes to heaven, it has it's sort of beauty, technologically advanced beauty. From outside. But let us take a look inside the skyscraper, the first few stories are usually used to impress on purpose, interiors are extensively decorated in a modern way, luxury shops and ads are installed, most recognized brands are invited to put their world renowned logos everywhere.

Do we have an example of this kind of an impressive building in the past centuries? Does it remaind you something from the past? The history of architecture knows such example. This temple.

Everywhere, in Rome, India, Persia, Tibet, Russia, Greece, France or Germany, the king will build a temple when he wants to strengthen his influence in the area. Especially in the freshly conquered, annexed, colonized or by other means possessed territory, where current architecture is centuries behind what the king could build with his power, money and people.

The temple will dominate the lesser buildings and will convey the populist messages to both, the locals who will think the king is come not to war and rob but unite people under right and mighty God, as well as to king's settlers who will be attracted by the building and all associated infrastructure, culture and economy.

The view on skyscrapers as tall buildings is not complete, the skyscraper is a tall building that was made impressive on purpose. For instance Empire State Building is surrounded by other very high buildings, but you may think they are just tall buildings whereas ESB was definetly build and named to impress.

In colonies such as HK or Singapore the skyscraper will attract both local population and metropolian settlers. Locals will love to move in and learn English to be closer to civilized world that for them emotionally is a "skyscraper world" with technology, knowledge, power and gold. And settlers will love to come as they will feel in the West while being far from home. British colonizers noticed that it is much easier to attract settlers, especially noble and wealthy if you create a very dense town, this will help preserve a metropolitan culture as well as opposed to dissolving in local population.

Of course a decision to build impressive skyscrapers in the colony will not be made by public democratic procedures. Instead it will be made in private clubs in comfortable chairs surrounded by cigar smoke and expensive wine on the tables. Of course both press, the one oriented at metropolian settlers and the one oriented at native settlers (say Chinese in HK) will be told other things about land value, great symbol of our city success, a better place to work and trade for us all. Of course all those messagess will be true as well.

In Russia and China the governments are frustrated by the fact that local popularion sees the West as the more attractive place than the someone's own country, that is why Chinese government will support building impressive buildings. Someone mentioned 7000 skyscrapers build in China. Of course all economical reasons apply, and they have been discussed before me.

Russia did not built a single skyscraper for about twenty years, although the attempts to build impressive structures in Moscow and Saint-Petersburg were made all the time, but each time when the plan was made public, the western press will start the campaign against it, usually the arguments were historical city view, money comes from bad oligarchs, local people will oppose. And they will oppose, few days later when the same arguments will spread in local press. And photos of few protesters will circulate in Western press another few days later, and few other days later they will circulate in local press. I talk about it in such detail to support my claim that skyscrapers are built or not built not from solely natural economical reasons but on purpose. The purpose is populism, who has the right to build temples he is the King. In recent years Russian president Putin used his presidential power to remove the barrier and skyscrapers are finally being built in Moscow.

Not only empire builders and colony establishers would want to build impressive buildings, corporations will want to impress their higher staff, partners and customers. But they have limited power and will only build where allowed by city planners.

This is a list of all high-rise buildings (100m) in Europe (including the Asian part of Russia and Turkey, Azerbaijan and Georgia)

Skyscrapercity - Number of 100m skyscrapers in Europe by country (complete, T / O, U / C)

High-rise buildings 100m in Europe

complete = 947 topped out = 85 under construction = 262

Complete list of all skyscraper (150m +) in Europe (complete, T/O, U/C)

150m+ (complete,T/O) = 199 200m+ (complete,T/O) = 50 300m+ (complete,T/O) = 6

In my opinion, three factors creating the skyscraper.

1.Steel. The skyscraper needed the steel as the skeleton to uphold the whole weight of the building, instead of the outer wall to support the weight. 2.Elevator. Transport the people to the upper stairs. 3. Bond, this factor which can be debated. Before you start to construct the skyscraper, you need to fund enough money for the whole project. 4. Heritage, because European cities have the heritage, it would be difficult to reform the city like America.

It is because European cities have building height restrictions. For example, London has a 1000-foot absolute restriction and it is very rare for any building over 250 feet high to be permitted. Paris has similar laws that prevent the construction of any building over about 200 feet (12 stories).

The reasons given for these restrictions are given out as to "preserve historic skylines" and "improve the quality of life of workers". However, these reasons are just nonsense, because you can find the same restrictions in bombed out cities like Munich that have no longer have a "historic" skyline.

In all probability, it is probably just nimbi-ism ("not in my backyard"). Skyscrapers benefit the builder and tenants, but noone else, except indirectly. In the socialist mentality current in Europe such "selfish" business practices are not tolerated, especially by labor parties.

Basically, it is a result of the socialist/"worker"-oriented politics prevalent in Europe. In Asian cities like Singapore, Hong Kong and Shanghai, the rules are made by small groups of elites and workers do not have much influence over zoning policies.

Just as additional proof of my answer read dorf's answer above. What he says is a completely accurate picture of the European view: workers have a "right to daylight" according to him. That is the mentality that prevents skyscrapers from being built in the middle of big cities in Europe.

Harry Potter Lands Compared: East Coast, West Coast and Worldwide

An incredibly large part of my childhood was spent thinking about Harry Potter. I was first introduced in 1999, when my fourth grade teacher read “Harry Potter and the Sorcerer’s Stone” aloud to us in class. She created distinct voices for each character as she went to say it was magical would be an (applicable) understatement. It was a dream to take an entire Harry Potter vacation someday.

After that, I spent my summers counting down the days until the next book would be released. I saved up endless dollar coins with Sacagawea’s face on them to pay for them. Then, I’d hide under the blankets long after my mom thought I was asleep, transporting myself to Hogwarts. Though magic was subject at the forefront of each book, lessons on friendship, family and loyalty sucked me in.

I’d head to the midnight premieres of the last few movies rocking a USC scarf—Gryffindor colors, after all. Once the impressive 15 combined novels and films were all released, there was a sad moment: no more new Harry Potter. But Universal Studios changed that by opening two incredible theme parks dedicated to the lands, wizards and stories I’d loved for so long.

I’ll leave it up to Eileen to detail the magic of the original Wizarding World of Harry Potter in Florida, as well as the Warner Bros. Studio Tour in London, while I reveal just why you should visit Universal’s sister park in California.


Study area

In this study, North America (NAM) is defined to include all land areas of North America north of Mexico, i.e., including Canada, the ice-free part of Greenland, and the continental United States (Fig. 1). East Asia (EAS) is defined to include eastern Russia (roughly east of 80° E longitude), Mongolia, the Korean Peninsula, and the vast majority of China (roughly north of 30° N latitude), which excludes the following ten southern provinces: Fujian, Guangdong, Guangxi, Guizhou, Hainan, Hunan, Jiangxi, Taiwan, Yunnan, and Zhejiang (Fig. 1). The reason to exclude Japan from this study is to minimize island-related effects (e.g., endemism) on diversity comparisons. East Asia is generally comparable with NAM in land area and environmental range. For example, both regions have a land area of 19.7 million km 2 and have subtropical, temperate, boreal, and arctic areas along a latitudinal gradient, wetter and drier areas along a longitudinal gradient from coastal to interior, and elevations from sea level to over 6000 m.

To examine the influence of latitude, reflecting major climate gradients, on the large-scale patterns of taxonomic diversity between EAS and NAM, each of the two continental regions was divided into two broad latitudinal zones: southern and northern semi-continents (Fig. 1). The northern part of EAS (EASn) includes eastern Siberia, the Russian Far East, approximately the northern half of Mongolia, and northeastern China. It encompasses 12.4 million km 2 in area. The northern part of NAM (NAMn), encompassing 12.3 million km 2 in area, includes Canada, the ice-free part of Greenland, and the following states of the USA: Alaska, Pennsylvania, New York, New Jersey, Connecticut, Rhode Island, Massachusetts, Vermont, New Hampshire, and Maine. The southern part of EAS (EASs) includes all the area of EAS except for EASn as defined above. EASs has approximately 7.3 million km 2 in area. The southern part of NAM (NAMs) includes the entire contiguous United States except for those states that were included in NAMn as delineated above. The southern part of NAM is approximately 7.4 million km 2 in area. For the convenience of discussions in this article, these four regions are called semi-continental regions.

Data sources

Data collection began in the early 1980s. The main data sources were the literature. During the past two decades, I reviewed more than two thousand publications pertinent to the floras of EAS and NAM in developing floristic databases for the two continental regions.

North America

A master database for the North American vascular plants (NAM-PLANTS) was created. The database was initially based upon Kartesz and Kartesz (1980) in conjunction with Soil Conservation Service (1982), Shetler and Skog (1978), Scoggan (1978), and Polunin (1959). The NAM-PLANTS database was thoroughly updated when the following sources became available: Kartesz (1994), USDA (1999), and Biota of North America Program (1999). A number of more recently reported species that did not appear in any of the above-mentioned sources were added to the NAM-PLANTS (e.g., Corallorrhiza bentleyi Freudenstein, Echeandia texensis Cruden, Twisselmannia california Al-Shehbaz). The NAM-PLANTS database provided a framework for documenting detailed botanical information (e.g., native/exotic status of a plant) and distributional information (e.g., presence/absence at the state/province level). Almost all floristic books (including checklists, manuals, and atlases) pertinent to the North American regional or state/province floras were used to document presence/absence and native/exotic information for each taxon in each of the North American states/provinces. In many cases, data based on floristic books for a state/province were updated a number of times when new data became available in journal articles or other reliable sources. For example, over 300 new taxa have been added to the flora of the state of South Carolina (Hill and Horn, 1997) since the publication of Radford et al. (1968).

East Asia

A master floristic database for the East Asian vascular plants (EAS-PLANTS) was developed during the same period as the NAM-PLANTS. The major sources for documenting China's plants were over 200 volumes of floristic books. These include all published volumes of Anonymous (1959–1998) and Wu and Raven (1994–2000) for the national flora and all published volumes of regional and provincial floras such as Fu (1995), Huang (1994–2000), and Wu (1983–1987). The Russian floristic data were based on Czerepanov (1995), Charkevicz (1985–1996), and Krasnoborav et al. (1988–1997). The Mongolian floristic data was obtained from Grubov (1982). Korean floristic data were compiled according to Lee (1980), Ri and Hoang (1984), and (Lee, 1996).

Both NAM-PLANTS and EAS-PLANTS databases have been continuously updated as new information becomes available. Because the compilation of pteridophyte data for East Asia north of 30° N has not been completed, this study focuses on seed plants, which account for over 92% of vascular plants in both East Asia and North America.

Standardization of botanical nomenclature

Species level

The standardization of botanical nomenclature for the North American species generally followed Kartesz (1994), except for a few recently published names that were not listed. Where Kartesz treated species much differently from the majority of other authors, I followed the majority authors' treatment unless Kartesz's treatment was more compelling. For example, Aphanes occidentalis (Nutt.) Rydb. was treated as conspecific with A. arvensis L. in Kartesz, but the two taxa were separated by other authors, such as Hitchcock and Cronquist (1973), Douglas, Straley, and Meidinger (1989–1994), and Hickman (1993), whom I followed.

Differences in the botanical nomenclature among China, Russia, Mongolia, and Korea are noticeable. In general, Russian botanists tended to use a narrower species concept than those of other East Asian countries. For example, many taxa generally considered as subspecies or varieties were recognized as different species in the Russian literature. In addition, many taxa recognized as different species by Russian botanists were considered as the same species by North American botanists or botanists in other Asian countries. For example, Erophila praecox, E. spathulata, E. verna, Trisetum alaskanum, T. molle, and T. spicatum were recognized as six different species in Czeropanov (1995) but recognized as only two species (Draba verna and Trisetum spicatum) in Kartesz (1994). The species concept for vascular plants is generally comparable between China and North America. Qian and Ricklefs (1999) compared 352 native genera published in two volumes of the Flora of China (Wu and Raven, 1994–2000 vols. 16 and 17), which was compiled by a joint team of Chinese botanists and international (mainly the United States) botanists, with the same genera in the Flora Republicae Popularis Sinicae (Anonymous, 1959–1998) compiled solely by Chinese botanists. They found that the total number of species for the genera in the two publications was more or less comparable, suggesting that there is no evidence for discrepancies in species circumscription between Chinese and North American botanists. In principle, I followed the broad species concept as in Kartesz (1994) and China's floras in standardizing the botanical nomenclature of the taxa in Russia, Mongolia, and Korea. The Flora Europaea (Tutin et al., 1964–1980), whose botanical nomenclature practice is more or less comparable to Kartesz's, was frequently used in standardizing the nomenclature for the East Asian (particularly Siberian) plants.

Genus level

Standardization of generic nomenclature followed Brummitt (1992), Greuter et al. (1993), Wielgorskaya (1995), and Mabberley (1997). In general, a generic name was accepted if all these works adopted it. Generic names in the literature on the floras of East Asia and North America that were absent from the above-mentioned works were treated carefully by consulting available taxonomic monographs and continental, national, or regional floras.

Data analysis

Each genus was placed in a family and an order. The placement of genera in families followed Wielgorskaya (1995) for gymnosperms and Takhtajan (1997) for angiosperms. Designations of orders followed Takhtajan (1986) for gymnosperms and Takhtajan (1997) for angiosperms. Orders were grouped into four major plant groups: gymnosperms, magnoliids, monocots, and eudicots. Three analyses of variance (ANOVAs) were conducted to assess regional differences in taxonomic richness between (1) EAS and NAM, (2) EASs and NAMs, and (3) EASn and NAMn. In each ANOVA, the dependent variable was the log10-transformed number of taxa and the effects were taxon (gymnosperms, magnoliids, monocots, and eudicots), taxonomic level (order, family, genus, species), and region (counterparts of EAS and NAM).

In more detailed comparisons in taxonomic richness between EAS and NAM, monocots were divided into four groups, alismatids, Liliidae, Arecidae, and Commelinidae, and eudicots were divided into five groups, ranunculids, Caryophyllidae, rosids, Lamiidae (euasterids I), and euasterids II, following Qian and Ricklefs (1999). These nine groups together with gymnosperms and magnoliids were called phylogenetic groups and were subjected to a replicated goodness of fit test (G statistic Sokal and Rohlf, 1981) to test the hypothesis that the proportions of the numbers of taxa in a pair of floras (one from East Asia and the other from North America) for a phylogenetic group are equal to the proportions of the two floras with all phylogenetic groups pooled. For each of the three pairs of the floras in East Asia and North America, four G-statistic tests were conducted, each testing one of the four taxonomic levels of order, family, genus, and species.

How Many the Black Death Killed

Table 1: Mortality rates of English rural tenants (mostly men), 1348–1349

Manors County Mortality rate Source type Source
Calstock Corn. 42% S: Heriots Hatcher, 105
Climsland Corn. 62% S: Heriots Hatcher, 105
Marnhull Dorset 36% M: Head-tax (LL) Ecclestone, 26
Ashcott Soms. 44% M: Head-tax (LL) Thompson, 168
Batcombe Soms. 54% M: Head-tax (LL) Ecclestone, 26
Ditcheat Soms. 54% M: Head-tax (LL) Ecclestone, 26
Greinton Soms. 47% M: Head-tax (LL) Thompson, 168
Ham Soms. 42% M: Head-tax (LL) Ecclestone, 26
Mells Soms. 58% M: Head-tax (LL) Ecclestone, 26
Pilton Soms. 61% M: Head-tax (LL) Ecclestone, 26
Street Soms. 55% M: Head-tax (LL) Thompson, 168
Walton Soms. 52% M: Head-tax (LL) Thompson, 168
Walton Soms. 61% M: Head-tax (LL) Ecclestone, 26
Badbury Wilts. 76% M: Head-tax (LL) Ecclestone, 26
Christian Malford Wilts. 66% M: Head-tax (LL) Ecclestone, 26
Damerham Wilts. 64% M: Head-tax (LL) Ecclestone, 26
Downton Wilts. 66% E: Heriots (incl. some LL) Ballard, 213
Grittleton Wilts. 63% M: Head-tax (LL) Ecclestone, 26
Idmiston Wilts. 50% M: Head-tax (LL) Ecclestone, 26
Kington Wilts. 56% M: Head-tax (LL) Ecclestone, 26
Nettleton Wilts. 48% M: Head-tax (LL) Ecclestone, 26
Alresford Hants. 59% M. Heriots Arthur, 61
Alverstoke Hants. 95% M. Heriots Arthur, 61
Ashmanworth Hants. 71% M. Heriots Arthur, 61
Beauworth Hants. 80% M. Heriots Arthur, 61
Bishop’s Waltham Hants. 65% E: Heriots Titow, 70
Cadland Hants. 100% M: Heriots Watts, 27
Cheriton Hants. 63% M. Heriots Arthur, 61
Corhampton Hants. 61% M: Heriots Watts, 27
Crawley Hants. 71% M. Heriots Arthur, 61
Ecchinswell Hants. 68% M. Heriots Arthur, 61
Funtley Hants. 100% M: Heriots Watts, 27
Gosport Hants. 100% M. Heriots Arthur, 61
Hambledon Hants. 94% M. Heriots Arthur, 61
North Waltham Hants. 54% M. Heriots Arthur, 61
Stubbington Hants. 41% M: Heriots Watts, 27
Swanwick Hants. 64% M: Heriots Watts, 27
Titchfield Hants. 72% M: Heriots Watts, 27
Wallsworth Hants. 62% M: Heriots Watts, 27
Woodhay Hants. 82% M. Heriots Arthur, 61
Cottenham Cambs. 49% M: Heriots Ravensdale, 198
Oakington Cambs. 64% M: Heriots Page, 121
Dry Drayton Cambs. 48% M: Heriots Page, 121
Chatham Hall Essex 45% S: Tithing penny Poos, Rural Society , 107n20.
Fingrith Essex 63% S: Heriots Fisher, 13–20
Great Waltham Essex 44% S: Tithing penny Poos, Rural Society , 107n20
High Easter Essex 54% S: Tithing penny Poos, Rural Society , 107n20
Margaret Roding Essex 26% S: Tithing penny Poos, Rural Society , 107n20
Hakeford Hall Norf. 56% S: Heriots Campbell, “Population Pressure,” 96
Walsham-le-Willows Suff. 45–55% S: Heriots Lock, 320–01
Ashbury Berks. 55% M: Head-tax (LL) Ecclestone, 26
Buckland Berks. 60% M: Head-tax (LL) Ecclestone, 26
Brightwell Berks. 29% E: Heriots Ballard, 207–08
Kibworth Beauchamp Leic. 67% S: Tithing penny Postles, 47
Kibworth Harcourt Leic. 40% C: Tithing penny Postles, 46
Witney Oxon. 66 E: Heriots Ballard, 195–96, 208
Cuxham Oxon. 65% C: Heriots Harvey, 135
Higham Ferrers Northm. 57% S: Court roll list Groome, 310
Halesowen Worc. 40% M: Entry fines Razi, 103
Aycliffe Durham 61% M: Heriots Benedictow, Black Death , 367 (citing R. Lomas)
Billingham Durham 45% M: Heriots Benedictow, Black Death , 367 (citing R. Lomas)
Burdon Durham 64% M: Heriots Benedictow, Black Death , 367 (citing R. Lomas)
Dalton-le-Dale Durham 69% M: Heriots Benedictow, Black Death , 367 (citing R. Lomas)
East Rainton Durham 29% M: Heriots Benedictow, Black Death , 367 (citing R. Lomas)
Fulwell Durham 56% M: Heriots R. Lomas, 129
Harton Durham 45% M: Heriots Benedictow, Black Death , 367 (citing R. Lomas)
Hedworth Durham 27% M: Heriots Benedictow, Black Death , 367 (citing R. Lomas)
Jarrow Durham 78% M: Heriots R. Lomas, 129
Middlestone Durham 70% M: Heriots Benedictow, Black Death , 367 (citing R. Lomas)
Monk Hesleden Durham 44% M: Heriots Benedictow, Black Death , 367 (citing R. Lomas)
Monkton Durham 21% M: Heriots R. Lomas, 129
Monkwearmouth Durham 67% M: Heriots Benedictow, Black Death , 367 (citing R. Lomas)
Moorsley Durham 45% M: Heriots Benedictow, Black Death , 367 (citing R. Lomas)
Nether Hedworth Durham 72% M: Heriots R. Lomas, 129
Newton Bewley Durham 48% M: Heriots Benedictow, Black Death , 367 (citing R. Lomas)
Newton Ketton Durham 42% M: Heriots Benedictow, Black Death , 367 (citing R. Lomas)

Historians have expended enormous effort estimating the mortality rates of the Black Death in 1348–1349. English historians have, in fact, probably done more to advance data collection of these rates than scholars elsewhere because of the variety and quality of documentary material that survives for England, particularly for peasants, who comprised over 80 percent of the total population. [39] Although estimates of mortality rates calculated for well-off groups such as wealthy tenants-in-chief of the king and beneficed clergy are useful, mortality assessments for the rural population bring us closer to how many people the Black Death actually killed. [40] Such estimates for the rural population are not unproblematic given the innovative methodologies that scholars have imposed on recalcitrant sources to extract mortality rates. One method involves counting the number of heriots or death-duties paid by peasants on a manor during a specified period, and comparing the number with the total manorial tenants liable to heriot, an exercise that has produced death rates for many different settlements across England (Table 1). [41] Another method relies on a customary head-tax due from a particular class of manorial tenants. On the manors of Glastonbury Abbey, landless men who represented the poorest sector of village society (called garciones and over the age of 12) had to make an annual payment (called chevagium , or head tax), which allows mortality rates to be calculated by subtracting the total for the plague year from the total for the previous year (Table 1). [42] A similar tax was the tithing penny due on some Essex manors from all male villeins (serfs) over age 12 the total sums collected, at the rate of one or one-half penny per head, survive for many years, thus theoretically allowing changes in the size of a village’s population to be determined. [43] Unfortunately, few Essex tithing lists survive for all the years of the Black Death, so the mortality rates are calculated as the percentage decline in those paying tithing penny between a three- to five-year period. [44] Detailed analyses of manors with especially good court rolls and account rolls have also allowed historians to calculate plague mortality rates of at least 40 percent in Halesowen and over 50 percent on the small but heavily populated manor of Hakeford Hall in the Norfolk village of Coltishall. [45]

The mortality rates derived from these different methods show variations ranging from 20 to 100 percent (Table 1), but the overall average mortality of adult males in the countryside was about 50 percent. Because landless males had a generally higher mortality rate of 56–57 percent according to the drop in annual payments made by the poor garciones on Glastonbury Abbey estates (distributed over four counties), and because mortality rates from heriots exclude women, children, and landless men, there have also been attempts to push this overall figure above 60 percent to account for the many poorer peasants and women left out of the heriot and tithing-penny figures. [46] Whether the figure is 40, 50, or even higher than 60 percent, the Black Death of 1348–1349 had an extremely high mortality, in stark contrast to modern plague mortality, which is rarely more than 2–3 percent even in the absence of antibiotic treatment. [47] During the late 1890s and early 1900s, bubonic plague killed approximately one million people per year in India. [48] Though this is a disturbingly high number of people, it does not approach the high levels of mortality that occurred during the Black Death in terms of the proportion of the population killed.

Questions about why the Black Death of 1348–1349 was so deadly remain unanswered by both historians and scientists, although there is some hope that bioarchaeology and paleomicrobiology may provide solutions one day. [49] We now have clear evidence that the Black Death was caused by Y. pestis and in particular by a strain of the bacterium ancestral to most extant strains. Comparison of Y. pestis DNA from skeletons of individuals who died during the Black Death with modern references has so far failed to reveal any significant functional differences in sections of the genome associated with virulence. [50] Comparisons between Y. pestis DNA from different historical epidemics suggest that the First (the Plague of Justinian in the sixth century) and Second (the Black Death) Pandemics represented independent emergences of plague from animals into humans and that the strain responsible for the Plague of Justinian might have subsequently gone extinct. [51] It is also noteworthy that a recent successful analysis of a tooth sample from a Black Death victim, which identified dozens of pathogenic, environmental, and microbiomic taxa, indicates that we have the capability to examine the diversity of pathogens that were circulating at the time of the Black Death. [52] We can thus potentially test the hypothesis that co-infection with multiple pathogens, and resulting within-host competition, drove mortality during the Black Death to extreme levels. If molecular studies of Black Death remains do not reveal any features of the pathogen (or pathogens) that can fully explain the epidemiology of the epidemic, we must look carefully at the characteristics of the human populations that first encountered these pathogens in 1348 to understand the behavior of the fourteenth-century disease.

Recent research suggests that health in general declined before the Black Death emerged in the fourteenth century, which might have contributed to the extraordinarily high mortality of the epidemic. [53] Bioarchaeological analysis of human skeletons dating from A.D. 1000 to 1250 reveals declining life expectancies in London across this period, during which there were repeated famines in England resulting from climatic changes. [54] Since longevity (life expectancy) is a commonly used measure of a population’s general health, [55] these demographic trends estimated from the skeletal data suggest a decline in health prior to the Black Death that might have exacerbated vulnerabilities to a new disease and rendered the epidemic more deadly than it would have been had it struck a more resilient population. These studies have not yet included skeletal samples from late thirteenth century through the mid-fourteenth century, so it remains to be seen whether these declines in health were sustained right before the Black Death.


By analyzing the low-coverage whole-genome sequences of 11,670 Han Chinese individuals, we produced and characterized currently the largest and most comprehensive map of genetic variation in the Han Chinese population. We have used this catalog to investigate population structure, admixture history, and infer signals of natural selection. Our results add to the existing knowledge of this previously relatively understudied, yet one of the largest, population in the world, and pave way to future medical and population genetic studies of Han Chinese.

Analyses of exome sequencing studies, primarily in Europeans, have noted a number of erroneous entries in clinical genetics databases, such as ClinVar, where a reported pathogenic variant appears to be too common in the population to be truly pathogenic. We cross-referenced the catalog of Han Chinese variation with the ClinVar database, looking for incidences where reported pathogenic variants are extremely rare in European populations (hence likely to be still considered pathogenic based on ExAC), but are more common in Han Chinese. We identified 5 pathogenic or likely pathogenic variants in the ClinVar database where the estimated frequency in ExAC non-Finnish Europeans is < 0.01, but the estimated frequency in Han Chinese is > 0.03 [TABLE 1], and one additional likely pathogenic allele for a rare Mendelian disease in the intronic region that was not covered in ExAC but is common in Han Chinese [TABLE S2]. Among them, the missense variant in SLC7A14 (rs2276717) is a singleton in ExAC NFE (MAF ∼1.5x10 −5 ), but has a frequency of 0.048 in Han Chinese. The variant is reported to cause an autosomal recessive form of retinitis pigmentosa (Jin et al. 2014). However, given the prevalence of approximately 1 in 4000 in China (You et al. 2013), which is on par with the estimates in U.S. ( https://nei.nih.gov/health/pigmentosa/pigmentosa_facts ), the maximum credible population allele frequency would be approximately 0.022 in Han Chinese even under relatively relaxed assumptions of genetic architecture [METHOD]. Therefore, this variant is too common and unlikely to be pathogenic in the Han Chinese population. Incidentally, the observed frequency in ExAC East Asians is lower (0.027, but likely contains a mixture of Han Chinese and other East Asian populations), and much closer to the maximum credible population allele frequency, and thus would not be as confidently filtered in a screen for pathogenic variants. Similarly, rs11085825 in the intron of GCDH gene is likely too common in Han Chinese (and in fact, across the world based on 1000 Genomes) to be responsible for the autosomal recessive disorder of glutaric aciduria, type 1 (occurs in ∼1 per 100,000 infants (Hedlund et al. 2006)), despite being reported likely pathogenic in ClinVar.

Despite these examples where examining the Han Chinese populations helps filter out candidate pathogenic variants, interpretation of the other entries in ClinVar is less obvious. For example, rs671 in ALDH2 for alcohol dependence, is a well-characterized functional variant in the alcohol metabolism pathway, has been suggested to be selected in East Asian populations (Oota et al. 2004), and thus would not be surprising that the frequency is uniquely high in East Asians while being truly causal. For another example, rs72474224, a missense variant in GJB2, is reported as likely pathogenic for autosomal recessive form of non-syndromic sensorineural hearing loss and deafness by ClinVar. The variant is rare in non-East Asian populations in ExAC (< 0.001), but is common in ExAC East Asian (0.072) and CONVERGE Han Chinese (0.055). However, the prevalence of non-syndromic hearing loss is also known to be higher in East Asian populations (Naeem and Newton 1996), and thus the observed frequency in Han Chinese may still be consistent with the its pathogenicity. Taken together, these findings suggest that population-specific prevalence and disease risk should be taken into account when screening clinically sequenced genomes for pathogenic variants.

We also utilized this whole-genome sequencing resource to address a number of basic population genetic questions in this population. Specifically, we examined population structure, signals of admixture, relationships with ancient and archaic humans, and signals of allelic differentiation consistent with positive selection. Because of the ultra-low coverage in generating this dataset, we focused on using allele-frequency based methods to address these questions.

The North-to-South structure among the Han Chinese has been a well-known feature, evident from both studies of uniparental markers (Wen et al. 2004 Zhao et al. 2015) and genome-wide chip array data (Chen et al. 2009 Xu et al. 2009 Chen et al. 2016). However, little structure have been observed beyond the first principal component, which could be due to a combination of smaller sample sizes in the previous studies, as well as the lack of breath in representing present day China. We observed, for the first time to our knowledge, clear population structure in the East-to-West axis among the CONVERGE sample. The E--W pattern is clearly weaker, explaining only ∼1/5 of the variance explained by the first principal components. However, this implies that while there may be increased migration across longitude in the spread of the Han Chinese, the migration pattern follows sufficiently an isolation-by-distance model to be detectable in a large well-represented sample.

We applied a test of admixture based on the f3 statistics (Patterson et al. 2012), which utilizes allele frequency covariances between CONVERGE sample and our chosen global reference samples (the Human Origins Array data) to test for evidence of admixture. We find patterns of admixture signals that are geographically localized to certain parts of China [TABLE S4]. In general, the admixture signals that we detected are also corroborated by allelic-sharing statistics [Figure 3], and make sense geographically in that the signals tend to be with neighboring non-Han Chinese populations that are situated closely. The signal we have detected through f3-statistics is thus likely again demonstrating a pattern of isolation-by-distance, with constant / frequent exchange of migrants with neighboring populations through history, rather than a single pulse admixture model typically invoked for populations such as the African Americans. This suggests that caution is needed to interpret the admixture results via the f3 statistics (Peter 2016).

One finding from our analysis of admixture signals that most likely fit a one-pulse admixture model is our observation of admixture from Northern European populations to the Northwestern provinces of China (Gansu, Shaanxi, Shanxi), but not other parts of China. Previous analysis of the HGDP data, based on patterns of haplotype sharing among 10 Han Chinese from Northern China, estimated a single pulse of ∼6% West Eurasian ancestry among the Northern Han Chinese. The estimated date of admixture was around 1200 CE. This signal is also observed among the Tu people, an ethnic minority also from Northwestern China the authors attributed this signal to contact through the Silk Road (Hellenthal et al. 2014). We estimate a lower bound of admixture proportion due to Northern Europeans at approximately 2% - 5%, with an admixture date of about 26 +/-3 generations for Gansu, and 47 +/-3 generations for Shaanxi [Table S8]. Using a generation time of about 26-30 years (Moorjani et al. 2016), these estimates correspond to admixture events occurring at around 700 CE and 1300 CE, respectively, corresponding roughly to the Tang and Yuan dynasty in China. However, these estimated dates should be interpreted with caution, as both the violation of a single pulse admixture model and the additional noise in inter-marker LD estimates due to low coverage data could bias the estimates.

The prevailing view in the origin of agriculture in China is that domestication of crops and animals occurred in China independent of other agricultural centers around the world, such as the Fertile Crescent (Ho 1976 Jones and Liu 2009 Zhao 2011). Consistent with this view, and unlike how agriculture arrived in Europe (due to demic diffusion from Anatolia (Mathieson et al. 2015)) and South Asia (due to demic diffusion from Iran (Lazaridis et al. 2016)), we find that present day Han Chinese show greater genetic affinity to Mesolithic European hunter--gatherers than Neolithic European farmers from the same era [FIGURE 4], and that they show very low affinity with the Iranian Farmers [FIGURE 4]. Currently available ancient DNA data are largely of European origin, thus have limited information on the spread of the Han Chinese people that appears to be coupled with spread of agriculture (Zhao et al. 2015). Furthermore, within China there may be two or more independent centers of domestications: one near the southern Yangtze River where rice was first domesticated, and another one near the northern Yellow River where millets are found (Zhao 2011). Therefore, the extent to which the Han Chinese people replaced or were assimilated during their expansion and how that coupled with the spread of agricultural practices may be of interest to study in the future with more ancient DNA data being generated out of China.

Taking advantage of the most geographically diverse dataset of Han Chinese, we identified a number of loci in the genome showing extreme frequency differentiation across China, a subset of which is likely due to selective pressure such as pathogen, diets, and variation in environmental exposures such as UV radiation. A few of these loci have been well studied, and are highlighted below.

The FADS locus was recently identified to be under selection in the Greenlandic Inuits, presumably driven by the marine--rich diets of the arctic population (Fumagalli et al. 2015), as well as in Europeans (Mathieson et al. 2015). Our top variants in the FADS locus, two intronic variants in FADS1 (chr11:61571478 and chr11:61579463, r2 = 0.99 between the two), are in high LD in CONVERGE cohort with one of the top hits reported in Fumagalli et al. (chr11:61597212 r2 = 0.99), while the other five variants reported in Fumagalli et al. showed modest to poor LD with our lead variant here [Figure S12, Table S9]. This may reflect a common demographic origin between the two peoples (perhaps mediated through common ancestry prior to the Inuit’s expansion across Beringia). However, because the presumed selected (derived) allele in Inuits for chr11:61597212 is actually in higher frequency in Southern Han Chinese rather than Northern Chinese, it remains possible that this is an instance of convergent selection on standing variation due to shared marine diet of the Inuits and Southern Han Chinese. Alternatively, it could also be due to selection of the alternative allele in Northern Chinese, as there is evidence of varying selection on the two alleles in FADS locus depending on different dietary practices in Europe (Ye et al. 2017). Future analysis focusing on the haplotypic pattern of selection will provide more insight to the allelic relationship observed in Han Chinese and Inuits at this locus.

Another well-studied locus that our selection scan detected is in MTHFR. Our top differentiated SNP is a missense variant (rs1801133, 1:11856378) that has been shown to modulate the activity of the enzyme by producing a thermolabile derivative with reduced activity (Frosst et al. 1995) and thus is associated with plasma homocysteine levels (Pare et al. 2009 van Meurs et al. 2013). The thermolabile allele frequency ranges from ∼30% to ∼60% in CONVERGE samples from Southern and Northern China, respectively, consistent with previously reported South-to-North increasing gradient in East Asia and in opposite direction to the observed North-to-South increasing gradient in Europe (Yafei et al. 2012). At high latitude, less pigmented skin is selectively favored to improve vitamin D production, but would in turn be susceptible to photolysis of folate. Therefore, the non-thermolabile alleles would be favored to more efficiently metabolize folic acid (Jablonski and Chaplin 2010), leading to the North-to-South increasing gradient of the thermolabile allele. The trend is opposite in East Asia, but could still be explained by the relative difference in latitude between China and Europe (Yafei et al. 2012). Furthermore, dietary supplement of folate could stabilize the thermolabile protein (Frosst et al. 1995), and in cases where folate is plentiful in the diet the impact of the thermolabile allele on recurrent pregnancy loss is reduced (Munoz-Moran et al. 1998). Thus, differential dietary practices across Han-Chinese could lead to the latitudinal gradient we observe here. However, UV exposure appears to better explain the allele frequency gradients than dietary practices in China (Yafei et al. 2012).

We also detected a signal at the ADH locus, which is near but different from the well-characterized variant in ADH1B locus (rs1229984, 4:100239319, Arg48His allele) for alcohol metabolism. The ADH1B Arg48His variant is suggested to be positively selected based on comparisons between East Asians and Europeans (Han et al. 2007), as well as within Europeans (Galinsky et al. 2016). Our lead variant (rs422143, 4:100332865) is downstream of ADH7, approximately 90kb away from ADH1B, and showed much stronger signal than any variant in the ADH1B locus (P ∼ 2.4e-8, TABLE P6). It is in poor LD (r2 ∼ 0.18) with the ADH1B Arg47His variant, which only showed marginal evidence of association among CONVERGE samples (P ∼ 0.00096). However, it should be noted that a regulatory variant in the ADH1B locus, rs3811801, was suggested to be a younger variant showing stronger differentiation within East Asia than Arg48His variant (Li et al. 2011a Galinsky et al. 2016) this variant is in slightly higher LD to our lead variant in ADH7 [r2 ∼ 0.33], as well as better evidence of selection [P ∼ 6.1 × 10 −6 ].

ADH7 is a class IV alcohol dehydrogenase unlike the class I enzymes (ADH1A, ADH1B, ADH1C) that are mainly expressed in the liver and account for ∼80% of the post-absorptive alcohol metabolism, ADH7 is mainly expressed in the upper digestive tract where it oxidizes ethanol at high concentrations early in the timeline of alcohol metabolism (Park et al. 2013). The mechanistic differences could also explain why the associations of variants in ADH1B with UADT cancer (squamous cell carcinoma of the upper aerodigestive tract, encompassing oral cavity, pharynx, larynx, and esophagus) is mediated through alcohol consumption behaviors, while the associations of variants in ADH7 with UADT appears to be independent from alcohol consumptions (McKay et al. 2011). Taken together, these observations are consistent with the ADH7 signal in our selection scan being independent from the previously reported ADH1B signal, and specific to Han Chinese. The potential selective pressures for alcohol dehydrogenase variants in East Asia include protection against infectious agents (due to increased acetaldehyde levels (Han et al. 2007)) and rice domestication (Peng et al. 2010). The latter hypothesis is based on the correlation between ages of archeological sites of rice domestication and allele frequencies of ADH1B Arg48His allele, which spread along the E-W axis of China. Consistent with these observations, our detected signal in ADH7 is found only on PC2, which corresponds to E-W axis. Furthermore, we find enrichment of selection signals in PC2 for another well-characterized locus involved in alcohol metabolism (Brooks et al. 2009), the ALDH2 locus on chr12 (a number of SNPs with P-values ranging from 1×10 −4 to 1×10 −6 rs671, 12:112241766, ALDH2 Glu487Lys allele, P ∼ 0.00049).

Notably, ADH7 and MTHFR have been recently implicated as under selection in comparison of Han Chinese to Tibetans (Yang et al. 2017). Our results here suggest a more general signal among Han Chinese that may reflect a continuous variation of selective pressure among Han Chinese across geography, rather than a selective pressure specific to the Tibetans. Beyond the loci described here, there are a number of potentially novel loci found with little recognizable insights to the biological mechanisms or the selective pressure behind the extreme differentiation. Some of the genes within the selection peak or nearby have been implicated in GWAS for life history traits such as age of menarche, or immune-related traits such as inflammatory bowel disease or Crohn’s disease, consistent with a signal of selection at these loci, but we note that there may be Han Chinese-specific but yet uncharacterized regions of long range LD that could appear like a region under selection in this analysis.

We have characterized extensively the pattern of population structure, demographic history, and extreme allelic differentiation within a broad and geographically diverse dataset of Han Chinese. However, a major limitation to our study is the reliance on allele frequency based methods for analysis, as the ultra-low coverage data generation obscured the haplotypic patterns at the individual level and precludes direct merging and comparison to other genotyped reference non-Chinese datasets. Therefore, as the cost of sequencing continues to decrease, much of the conclusions drawn here regarding the population history of Han Chinese should be complemented with haplotype-based analysis. For instance, while we revealed East-to-West structure among the Han Chinese, the signal is relatively weak and very little structure is discernable beyond the second PC. Haplotype-based clustering of individuals would produce a finer view of the structure among the Han Chinese (Lawson et al. 2012). The unit of much of our downstream analyses was also based on self-reported birthplaces among the CONVERGE participants. Using Haplotype-based clustering to define the units of analysis among the CONVERGE sample may further improve the power to detect signals of admixture, and enable reliable estimations of admixture proportions and dates. Nevertheless, our results here collectively demonstrate that there exist significant variations in demographic and adaptive histories across Han Chinese populations. Here we demonstrated how the impact on one type of trait, that of MDD and Melancholia, due to Neandertal ancestry appears to differ between the Han Chinese and Europeans. In general, these unique histories undoubtedly contributed to the variation of phenotype within the Han Chinese and between Han Chinese and other global populations. Therefore an better understanding of the Han Chinese history will help conduct and interpret medical genetic studies in the future in this largest ethnic group of mankind.

Who the Black Death Killed: Wealth, Status, Sex, Locale, and Age

Together historical and bioarchaeological sources can offer a great deal about differential mortality, that is, how wealth, position, age, sex, or frail health might have influenced an individual’s susceptibility to plague. These data not only improve our understanding of how the Black Death shaped demographic, economic, political, and social conditions of post-plague medieval populations, but they can also clarify our understanding of the dynamics of emerging infectious diseases today, particularly how the human context can shape the epidemiology and evolution of these diseases.

Contemporary documents tell us precious little about who was infected by the Black Death, although most medieval chroniclers claimed that the Black Death of 1348–1349 was indiscriminate in attacking those of all conditions, age, and sex. Only a few contemporaries noted contrary sentiments, such as: “few, virtually none, of the lords and great men died in this pestilence.” [56] Other documentary sources, such as royal genealogies and inquisitions post mortem for well-off tenants-in-chief of the crown, do show that there were very few casualties among the English royal family, that the higher nobility had a mortality rate of perhaps 4.5 percent in 1348 and 13 percent in 1349, and that the mortality rate among wealthy land-owners may have been a relatively low 27 percent. [57] English bishops also had a better chance of survival (fewer than 18 percent died in 1348–1349) than the secular and monastic clergy, about 45 percent of whom died in the Black Death. [58] The clerical mortality rates were on average lower than those of the rural majority. Wealth may have mattered since the poorest sector of rural society, those who could neither lease nor own land (marked as “LL,” “landless men” in Table 1), died in proportionately greater numbers than more well-off peasants.

Until recently, neither historians nor bioarchaeologists could offer firm evidence that the Black Death of 1348–1349 hit one sex harder than the other, though some medieval chroniclers of later plagues, such as that of 1360–1361, believe the plague killed more men. [59] The documentary evidence relates largely to men, although one study of rural manors in the northern county of Durham found that 52 percent of female tenants died in the Black Death compared to 50 percent of the total tenant population [60] More convincing evidence of greater female mortality during outbreaks of late medieval plague, including the Black Death, has been found in a recent analysis of thousands of death duties (called mortmains) paid in the Hainaut region of the southern Netherlands. Mortmain payments differed from heriots in taxing not the landholding of a tenant, but individuals, including women and young adults who were not yet heads of households. The study found an overall average sex ratio for mortality of 107 in the period 1349–1450, but 94 in plague years and 89 during the Black Death. Further tests on these data suggest that women were disproportionately affected by plague because they biologically had less resistance to the disease than men, rather than because of their differential exposure given their greater numbers in towns or the time they spent at home as caregivers. [61] This exciting new evidence will hopefully stimulate more historical and bioarchaeological studies to help resolve the conflicting evidence about sex-selective mortality during periods of plague.

Even less certainty surrounds the extent to which the Black Death was more virulent in urban than rural areas. One leading historian of plague maintains that rural regions suffered greater mortality than towns, but most historians argue the reverse based on solid data showing high mortality in pre-modern towns and their reliance on migration to maintain and grow their populations. [62] Unfortunately, there is no systematic source of documentary data to measure urban plague mortality such as we have for the clergy, wealthy landowners, and rural dwellers. The urban evidence tends to be indirect and peculiar to individual towns. A comparison of tax returns from Canterbury, for instance, shows that two-thirds of the tax-paying population vanished between 1346/7 and 1351/2, while monastic records show that one-half of the tenants of Rochester Priory in Rochester died and two-thirds of those residing at Durham Priory in Durham. [63] Wills have also been exploited to study trends in urban mortality. A careful study of wills in medieval London, for example, shows that the mortality rate in 1349 was seventeen times higher than in other years, which translates into a mortality rate of about 51 percent if we accept the average of a 3 percent annual mortality rate calculated for early modern populations. [64] It is likely that the actual mortality rate in London was higher, given the relative wealth of will-makers.

Finally, even more debatable is whether age made any difference to susceptibility to plague. Chroniclers occasionally declared that plague targeted the young or old or those in the prime of life, but age was rarely mentioned in accounts of the first wave of the plague in 1348–1349. [65] There is some questionable evidence that older men faced higher risks of mortality compared to younger men [66] (hardly surprising given their greater frailty), which bioarchaeological research has shown did make individuals more susceptible to the plague.

Bioarchaeology can provide especially useful insights into selective plague mortality because it is possible to determine the sex, age, and general health of skeletal remains, even though it cannot establish whether an individual died from plague without using molecular methods, most of which are expensive and destructive. A good deal of this work is statistical and involves the application of methodologies designed to compensate for the limitations of bioarchaeological data. As with historical documents, not every person who lived in the past is included in the observable bioarchaeological record. Certain individuals might be excluded from the samples analyzed because they were buried in unexcavated areas or because their bones were badly preserved, a particular problem for the smaller and thinner bones of infants, who are very often under-enumerated in skeletal samples. [67]

Partial excavation of a site, which is a common result of time and financial constraints, can produce biased skeletal samples if burial locations within the cemetery were influenced by factors like age, sex, socioeconomic standing, or disease status. Another problem relates to the traditional methods of aging skeletons, which tend to underestimate older adult ages, [68] or to group them into broad age intervals, such as “50+ years.” [69] These methods are not capable of making distinctions between, for example, a 50- and a 90-year-old, two ages with very different morbidity and mortality regimes. Compounding the problems with age estimation is the standard use of mean age-at-death or life tables to infer mortality patterns, both of which implicitly assume the population under consideration was stationary: that is, closed to migration, with zero population growth, and unchanging age-specific mortality and fertility rates. [70] Departures from these assumptions—which occur, for example, if the population was growing or contracting—means that skeletal age patterns might not accurately represent past trends in mortality patterns. [71]

Human bones often contain specific signs (such as lesions, pitting, thickening, and cracks) that reflect exposure to physiological stress in general or particular health problems, such as malnutrition, tuberculosis, previously broken bones, and other conditions. These health problems can shed light on selective mortality in terms of what might have made certain individuals more susceptible to death from plague. This type of analysis cannot be taken too far, however, because not all of the genetic, physiological, social, and environmental variations affecting frailty (that is, susceptibility to disease and death) leave discernable signs on the skeleton. [72] Reconstructing health from skeletons is further complicated because skeletal lesions, which form in response to disease, malnutrition, or trauma, might not always indicate poor health. Lesions could actually point to relatively good health because they reflect the ability of individuals to survive the associated stressor long enough for the lesions to form. Similarly, the absence of a lesion might suggest relatively poor health if individuals without them were so frail that they quickly succumbed to stressors and died before lesions had a chance to form. [73] In the absence of other supporting evidence, we thus cannot interpret the presence or absence of skeletal lesions in a straightforward manner, a problem articulated as the Osteological Paradox. [74]

Many of the published bioarchaeological analyses of the fourteenth-century plague have been done using skeletons buried in the East Smithfield cemetery in London. [75] The documentary history of the East Smithfield cemetery indicates that it was used only during the Black Death, so most if not all of the over 600 individuals recovered from the cemetery were victims of the 1348–1349 epidemic. [76] Sharon DeWitte previously compared East Smithfield to a non-epidemic, pre–Black Death assemblage to assess whether risks of death during the Black Death varied by age, sex, or pre-existing health condition (frailty). The results indicate that elderly adults faced higher risks of death compared to younger adults during the Black Death, as occurs under normal mortality conditions. [77] The mortality pattern for children in East Smithfield is less clear, however, perhaps as a result of the small sample of infants and children available from the cemetery. [78] Assessment of sex differences in mortality during the Black Death failed to reveal a significant difference in risk between men and women during the epidemic. [79] Finally, DeWitte and colleagues found that the Black Death disproportionally killed people with skeletal lesions compared to those without them. [80] These results suggest that people who experienced physiological stressors before the Black Death were subsequently more likely to die during the epidemic compared to their peers who lacked the lesions, indicating that the epidemic was selective with respect to frailty.

In summary, the combined evidence from the historical and bioarchaeological sources indicates that wealth, status, health and perhaps age affected risks of death during the Black Death. The elderly, those who were impoverished, and those who had suffered relatively poor health faced higher risks of death during the epidemic than their younger, wealthier, and healthier peers. Neither source of information for England has yielded substantial evidence that one sex fared better than the other, although recent work on the southern Netherlands offers strong evidence that plague more negatively affected women than men. Further documentary work on towns would be especially welcome to address the extent to which urban mortality might have exceeded rural mortality this question is more difficult to answer through bioarchaeology since plague cannot be diagnosed from skeletal remains without expensive DNA analysis and since the population at risk cannot be determined in cemeteries. Bioarchaeology does, however, have the potential in the future to clarify the risk of mortality for the youngest individuals in the population during the Black Death once additional Black Death cemeteries are excavated, thereby increasing the available sample sizes for analysis. Isotopic analysis of carbon and nitrogen will also be able to reveal more clearly how diet or nutritional stress, two factors that can produce skeletal lesions, affected risks of death during historical plague epidemics.

Why does Europe have so few skyscrapers compared to East Asia? - History

Paper Information

Journal Information

Microeconomics and Macroeconomics

p-ISSN: 2168-457X e-ISSN: 2168-4588

Effect of Gender Empowerment Programmes on Improving Quality of Life in Kenya: Evidence from Machakos County

Joshua M. Ngelu, Jane Omwenga, Joseph Mungatu, Mike Iravo

College of Human Resource Development, JKUAT, Nairobi, Kenya

Correspondence to: Joshua M. Ngelu, College of Human Resource Development, JKUAT, Nairobi, Kenya.


Copyright © 2018 Scientific & Academic Publishing. All Rights Reserved.

This work is licensed under the Creative Commons Attribution International License (CC BY).

This study investigates the effect of gender empowerment programmes on improving quality of life in Kenya: evidence from Machakos County. Probit model is used to model the empirical analysis. The findings are that generally all the households sampled recorded higher completion rates for girls than boys in primary school while in secondary school the completion rate was higher for boys than that of girls. Regression results indicate that primary and secondary school enrolment of the girl child is more likely to improve the quality of the household’s life by 0.7292 and 0.4584 respectively chances as compared to not enrolling. The results posit that a household with a girl child who successfully completes primary and secondary school education is more likely to have an improved quality life by 0.6890 and 0.2466 chances respectively as compared to a household with girl child who fails to successfully complete her primary school education. However it is noted that girl child enrolment in primary school has the highest impact.

Keywords: Gender Empowerment programmes, Quality of life, Probit model

A cross-cultural study of trait self-enhancement, explanatory variables, and adjustment ☆

We investigated trait self-enhancement, explanatory variables, and adjustment in European American (n = 141), Asian American (n = 72), Mexican (n = 141), and Filipino (n = 174) college students. Consistent with trait perspectives, students in all cultural groups rated their traits with moderate to high accuracy, using peer ratings as a criterion. European Americans did not exhibit self-enhancement relative to peers, but both self and peer ratings were higher (i.e., more positive) for European Americans than for the other three groups. Support was found for some, but not all, cultural psychology explanations of self-enhancement. In all cultural groups, self-enhancement was more associated with personal (intrapsychic) adjustment than interpersonal adjustment, as judged by peers. The results provided support for an integration of trait and cultural psychology perspectives.

Self-starvation in context: Towards a culturally sensitive understanding of anorexia nervosa

Extreme forms of self-starvation can be traced across time and place, and may be construed using a variety of explanatory models. Curiously, the prevailing biomedical definition of anorexia nervosa has assigned primacy to the exclusive use of ‘fat phobia’ by the affected subjects to justify their diminished food intake. This paper assembles evidence to show that this culturally constructed version of fat phobic anorexia nervosa has neglected the full metaphorical significance of self-starvation and, when applied in a cross-cultural context, may constitute a category fallacy. By delegitimizing other rationales for non-eating and thereby barring subjective expressions, this regnant interpretive strategy may obscure clinicians' understanding of patients' lived experience, and even jeopardize their treatment. Nonetheless, it is a relatively simple task to attune the extant diagnostic criteria to a polythetic approach which will avert cultural parochialism in psychiatric theory and practice. As a corollary of the archival and ethnocultural study of extreme self-starvation, there is, contrary to epistemological assumptions embedded in the biomedical culture of contemporary psychiatry, no ‘core psychopathology’ of anorexia nervosa.

“History distorted: a TWAIL approach to understanding NATO’s reinterpretation of India’s 1971 intervention in East Pakistan.”

Paper submitted in partial fulfilment of the Comprehensive Examination Requirement, DCL Program, Faculty of Law, McGill University November 2016.

Table of Contents

II. The NATO/Indian Case study

1. The 1971 Pakistani Civil War

2. India’s refugee situation

3. India’s defense before the UN Security Council

4. Reaction of the UN Security Council

5. Reaction of the International Community

6. Certain NATO states’ reliance on the Indian case study as an example of a humanitarian intervention

III. Analysis of the NATO/Indian case study

1. One action, two claims: the significance of the same intervention resulting in two completely different legal justifications

2. Certain NATO states’ reinterpretation of the legitimacy of India’s 1971 intervention

ii. Third World Approaches to International Law

“The Oxford Handbook of the History of International Law is made up of European authors writing on key European themes and figures of the theory of international law in the context of European history. Third World discourse, although invited to participate, is kindly kept to the margins […] Bonaventura de Sousa Santos refers to the idiosyncratic Western way of thinking that establishes distinctions between European and Non-European points of view, radicalises such distinctions, and creates a hierarchy between the two in such a way that the European perspective always occupies the top, while other visions are labeled as nonsense or contradictory.”[1]

I. Introduction

Alternative perspective on modern histories of international law (TWAIL) expose certain truths about the nature of international law that could be masked through structural faults due to North/South power dynamics in international law, institutions and politics. Analyzing the use of force in general, and humanitarian intervention in particular, is instructive in illustrating ways in which the Global South is dominated by the Global North in international legal discourse – both in terms of mainstream scholarship and international affairs. India’s legal defense for its 1971 intervention in East Pakistan and NATO’s reliance and reinterpretation of the Indian case study in 2000 (the “NATO/India case study”) is instructive in demonstrating the Westerncentric hegemony of the dominant perspective of international law. However, this case study has not been adequately explored in literature.

As a consequence of the humanitarian situation resulting from the civil war in Pakistan in 1971, India experienced an unprecedented influx of refugees. India claimed that the severity of the refugee situation threatened its territorial integrity, and subsequently intervened in East Pakistan, justifying the action under a creative interpretation of the self-defense provisions in the UN Charter. At the time, the intervention was condemned by the majority of the international community.

Almost 30 years later in 2000 before the International Court of Justice (“ICJ”), certain NATO states were faced with a similar dilemma while defending their use of force in Kosovo in 1999. These NATO states relied on the doctrine of humanitarian intervention, and reversed their previous position by relying on India’s 1971 intervention as evidence of a humanitarian intervention in customary international law (the ICJ case concerning the Legality of Use of Force: Serbia and Montenegro v. Belgium[2]). By taking this position, these NATO states not only changed their views about the legitimacy of the 1971 intervention, they also sought to silence India's position on the issue by reinterpreting an important historical case study in international law. Moreover, rather than condemning NATO’s intervention in 1999, the majority of the international community agreed that the intervention was “illegal but legitimate”.

The NATO/India case study raises several key questions about the role of Third World state players in international law and the development of international legal norms. For example, how was it possible for the 1971 intervention to be justified in two opposing ways by state players at different points in time? How was it possible for certain NATO states to reinterpret the 1971 intervention of India and also reverse their position about the legitimacy of the use of force in international law? What does this incident tell us about the nature of international law? This paper will address these questions.

Part 1 of the paper will outline the factual scenario surrounding the NATO/Indian case-study, detailing the 1971 Pakistani civil war, the refugee situation in India, India’s legal justification for intervening and the contemporary reaction of the UN and the international community. This part will focus on the international community’s reluctance to intervene despite wide acknowledgement of the desperate situation in East Pakistan. The section will end with an explanation of the significance of the NATO/Indian case study in international law.

Part 2 will provide an analysis of how certain NATO states came to reinterpret the 1971 intervention and how it was possible for those NATO states to change their position on the legitimacy of the 1971 intervention. This part will conclude with an analysis of what this position change reveals about the nature of international law. This section will rely on Martti Koskenneimi’s theories regarding the contradictory assumptions about sovereignty that control the production of legal arguments and ultimately lead to the indeterminate nature of international law. Also, Koskenneimi’s hegemonic contestation model will be utilized to demonstrate how international law is intentionally vague due to the ambiguous nature of sovereignty which permits arguments to be easily amended. This part will demonstrate that this fundamental aspect of the nature of international law led certain NATO states to provide a theoretically valid legal claim while reinterpreting the 1971 Indian intervention and fundamentally altering their position on its legitimacy.

To understand how international law works in practice, TWAIL scholars like Anthony Anghie and B.S. Chimni will be relied on to show the Western biases inherent in international law that lead to legal issues being usually settled in ways that generally disfavor the Global South, since international law is “[…] shaped by colonial views of the world and the conceptual apparatus that supports it.”[3] Given the different responses of the international community to the 1971 intervention at the time, compared to the 1999 intervention and certain NATO states’ reliance on the 1971 intervention in 2000, the NATO/Indian case study is an important example demonstrating how the Eurocentric nature of international law functions in reality.

II. The NATO/Indian Case study

1. The 1971 Pakistani Civil War

The 1971 civil war in Pakistan was brutal. With a low estimate of 30,000 civilian deaths and 10 million refugees flooding into India in just 9 months,[4] it is hard to deny that East Pakistan was facing an extremely distressing situation. The melting point of the tensions in Pakistan can be traced back to the huge election victory by East Pakistani’s main political party (the “Awami League”) in December 1970.[5] It is noteworthy that, since independence, East Pakistan has been dominated by West Pakistan both politically and militarily.[6] The election victory made the Awami League the single biggest party in Pakistan, leaving the Pakistan Peoples’ Party (“PPP”, West Pakistan’s leading political party) in second place. The PPP argued that since each party represented the biggest single majority party in each wing of Pakistan, both parties should have parity right while drafting the new constitution. In other words, the Awami League should represent East Pakistan, and the PPP should represent West Pakistan. The Awami League, opposed to this proposal, began a non-violent campaign of demonstrations and non-cooperation with the government in West Pakistan. This led to West Pakistan’s subsequent declaration of martial law and the deployment of troops into its Eastern territory.[7]

Initially the PPP, fearing secessionist goals of the Awami League, agreed to negotiations and diplomacy with the primary goal of the negotiations aimed at quelling any secessionist motives.[8] However these negotiations broke down[9], and eventually led to West Pakistan deploying their military into East Pakistan in March 1971 “with devastating force”[10], described by Ved P. Nanda as a “reign of terror”[11].

The result of West Pakistan’s intervention in March 1971 was a series of large-scale human rights violations – acts that have been described by some regional academics and NGOs (including the International Commission of Jurists[12]) as acts amounting to “genocide”. Nanda claims that “[t]he horror of these events prompted observers to accuse the Pakistani armed forces. of committing selective genocide, purporting to deprive East Pakistan of Bengali leadership”.[13] Thomas M. Franck and Nigel S. Rodley further claim that “Pakistan was violating minimum standards of human rights in East Bengal”[14] and Leo Kuper adds that the brutality included the “additional horror of torture and extermination camps”.[15]

The International Commission of Jurists report states that the devastation was “[…] on a scale which was difficult to comprehend” […] “[D]uring the civil war from 25 March to 3 December and during the international war from 4 to 18 December, massive violations of human rights occurred in East Pakistan [including an] attempt to exterminate or drive out of the country a large part of the Hindu population of approximately 10 million people […]”.[16]

The question of whether there were “humanitarian concerns” in East Pakistan is not up for debate. This is highlighted by the fact that throughout the conflict, the United Nations did not question the magnitude of the humanitarian situation in Bangladesh.[17] The UN reaction to the catastrophe in East Pakistan has been described by Nanda as that of a “concerned, but helpless observer” [18].

On his own initiative, the UN Secretary-General (U Thant) expressed concern over the situation to the President of Pakistan in May 1971 and launched the United Nations East Pakistan Relief Operation.[19] U Thant also circulated a confidential memorandum to the UNSC in July 1971 (made public a month later) reversing his previous position[20] that the UN would be disallowed to intervene in the situation due to Article 2(7) UN Charter, and now stating that the internal situation in East Pakistan amounted to a “threat to international peace and security”.[21] Moreover, the UN General Assembly, recognizing the escalating humanitarian situation, passed Resolution 2790 on 6 December 1971 calling for “United Nations Assistance to East Pakistan Refugees through the United Nations Focal Point and United Nations Humanitarian Assistance to East Pakistan”.[22]

Although the majority of the international community agreed the humanitarian situation in East Pakistan was extremely concerning, most fell short of condemning Pakistan’s actions. The usual Cold War stalemate, with the US and China supporting Pakistan and the Soviet Union aligned with India, prevented the major powers from even discussing the matter prior to India’s intervention and the UN Security Council did not pass a resolution until the Indian intervention had begun in December 1971. [23]

2. India’s refugee situation

During the nine months of terror, approximately 10 million refugees were forced to flee into India from East Pakistan.[24] The unpredicted massive population influx led to a considerable amount of strain on India’s resources, which resulted in deteriorating health and sanitation conditions in India. For example, the population of Calcutta had increased to 12 million after the arrival of the refugees, all of whom needed to be sheltered and given protection against epidemics like cholera, that had spread throughout West Bengal.[25] The cholera epidemic, in particular, was described as an “‘unbearable’ economic strain that was costing the exchequer millions every day.”[26] Additionally the East Pakistani refugees fled to a politically volatile area of India,[27] which led to fears of possible social and political upheaval that could undermine India’s own national stability.[28] By late May India estimated it had already sheltered over three million refugees, and the numbers reached six million by the end of June.[29]

Consequently, there began to emerge a large amount of public support in India for an intervention in East Pakistan. This pro-secessionist sympathy was rampant amongst India’s political elite and press. Reactions ranged from Opposition party members demanding direct military action, while some elements of the press favored the idea of all-out war with Pakistan.[30] Faced with significant electoral pressure and a looming election later that year, a case has been made that the Congress Party (India’s ruling party at the time) was pressured to act in support of the democratic will of its citizens. In fact, Wheeler suggests that the pubic legitimating reasons for India to act were perhaps the most convincing reasons for why India decided to act.[31]

Given the stringent obligations imposed on the international community by the 1951 Refugee Convention and by operation of customary international law[32], there was very little India could do to stop the massive influx of refugees into its territory. India therefore passed a parliamentary resolution describing the oppression in East Pakistan as amounting to “genocide”.[33] Although the Indian Chief of Army Staff claims an attack was planned in East Pakistan for 4 December, Pakistan launched an attack on eight Indian airfields on 3 December and India immediately retaliated.[34]

3. India’s defense before the UN Security Council

Although India’s 1971 intervention has been subsequently cited by scholars/jurists and also by certain NATO states in their official justification for their “humanitarian intervention” in Kosovo as a legitimate authority advancing the notion of a “humanitarian intervention”, India did not officially advanced “humanitarian concerns” as a legal justification for the intervention. Rather, while addressing the distressing humanitarian situation in East Pakistan on several occasions, India relied on a creative interpretation of the right to self-defense thereby officially citing Article 51 of the UN Charter as the primary justification for intervening.

Initially India’s Ambassador to the UN, Ambassador Samar Sen, justified India’s actions as permissible under a classic reading of the doctrine of self-defense, given that Pakistan had attacked India first. This was however exposed as a weak justification given the scale of India’s actions. As per the Carolina Incident case and customary international law, in order to be considered a legitimate act in self-defense and be covered by Article 51 of the UN Charter, the armed attack must be necessary, proportionate and a last resort.[35] The International Commission of Jurists’ report concluded that given the scale of India’s conduct it is unlikely that India was acting solely to protect its territorial integrity.[36] India’s justification was therefore quickly amended, with India accusing Pakistan of committing a new crime of “refugee aggression”. Ambassador Sen argued the kind of aggression India was facing should be comparable to the classic understanding of “aggression” given the impact of Pakistan’s civil war on social structures and finances in India, and India’s loss of territory in sheltering refugees.[37]

India claimed that the substantial influx of refugees entering the state of West Bengal (which borders Bangladesh) created a humanitarian catastrophe in India, and thus India was acting to prevent a further escalation of the humanitarian situation within its borders. Arguing that the situation represented an intolerable burden constituting a “constructive attack”, and acting in order to protect its own population, India’s intervention was an act of self-defense spurred on by “refugee aggression”.[38]

Ambassador Sen began by arguing that [India] shall not be a party to any solution that will mean continuation of the oppression of the East Pakistan people […] So long as we have any light of civilized behavior left in us, we shall protect them” but went on to say that “[s]econdly we shall continue to save our national security and sovereignty”.[39] “[W]e have no experience of interfering in other people’s affairs so long as they do not interfere in ours.”[40] In addition to these statements, there are numerous other occasions when Ambassador Sen justified India’s action based on self-defense after first speaking of the atrocities in East Pakistan.[41]

Hence, it can be argued that India’s intervention was purely self-interested, in pursuit of saving its own territorial integrity from the catastrophic effects of the refugee influx which may have led to a revolutionary situation in India, thus threatening the “inter-communal harmony of the Indian states”.[42] Converse to arguments concerning humanitarian intervention, which require that the primary purpose of the intervention to be altruistic, self-defense arguments are mainly self-interested. Thus India’s arguments closely resemble self-defense arguments as opposed to those relating to humanitarian concerns.

4. Reaction of the UN Security Council

The UN Security Council met on 4 December 1971, the day after the hostilities between India and Pakistan had commenced. Although the UN Security Council was suffering from its usual Cold War stalemate, the matter was referred to the UN General Assembly under the “1950 Uniting for Peace” procedure. The UN General Assembly ultimately passed Resolution 2793 (December 7, 1971) calling for an immediate ceasefire and a withdrawal of all troops.[43] India did not abide by the UN recommendation until the surrender of Pakistani forces on 16 December 1971. The last meeting of the UN Security Council took place on 21 December, where SCR 307 was passed calling for a “durable ceasefire”, each party to withdraw their military forces and the voluntary return of refugees.[44]

5. Reaction of the International Community

The majority of the Security Council rejected India’s argument that Pakistan’s “refugee” and “military” aggression legitimated India’s intervention. India was largely perceived to be violating the fundamental norms concerning sovereignty and non-intervention in the UN Charter. Other than the five permanent member states, the composition of the Security Council at the time included Argentina, Belgium, Burundi, Italy, Japan, Nicaragua, Poland, Sierra Leone, Somalia and Syria.[45]

Within the Security Council, China and the US were the strongest advocates of this position, with the US placing punitive sanctions on India including revoking all licenses for military sales and suspending current economic aid as well as the following year’s aid to India. The US Ambassador to the UN, George Bush, described India’s actions as “clear-cut aggression” and the Chinese Ambassador called upon the international community to name India as the aggressor.[46] While the US were careful not to condone the Government of Pakistan’s actions in East Pakistan, calling it a “tragic mistake”, Ambassador Bush nonetheless condemned India’s use of force and reiterated Pakistan’s right to territorial integrity and sovereignty.[47]

Other than the Soviet Union, the only state in the Security Council to accept India’s arguments was Soviet Union’s Warsaw pact ally Poland[48]. The Soviet Union, while situating its defense in the context of the humanitarian situation in East Pakistan, asserted East Pakistan’s right to justice and self-determination while also agreeing that India had indeed acted in self-defense. The Soviet Union argued that the Government of Pakistan was the main cause of the situation in East Pakistan and stressed the international nature of the conflict due to the flight of approximately 10 million people.[49]

Importantly, even when the matter was referred to the General Assembly under the Uniting for Peace procedure of 1950, none of the 49 states that spoke justified the intervention as a humanitarian intervention. Moreover, when the General Assembly finally passed Resolution 2793 it simply called for a ceasefire and only mentioned the repatriation of refugees without speaking of the humanitarian situation in East Pakistan. Resolution 2793 can therefore be viewed as the international community rejecting the doctrine of humanitarian intervention in favor of sovereignty. Wheeler rightly points out that “[…] Resolution 2793 secured such overwhelming support because it was accepted as a given that, even in cases of mass murder, there could be no exception to the rules of a pluralist international society.”[50]

The reactions of scholars to the question of legality of India’s 1971 intervention are mixed. While Fernando Teson makes a weak argument that Security Council Resolution 307 (21 December 1971) demonstrates the international community’s support for humanitarian intervention, given that it simply called for a ceasefire and stopped short of condemning India’s actions,[51] Wheeler conversely notes that Resolution 307 was in fact a compromise between the Soviet Union and the US during a problematic time and does not necessarily prove the international community supported India’s actions.[52] Gary Klintworth argues that the acceptance of Bangladesh’s declaration of independence by the majority of the international community (including the US) demonstrates the international community’s implicit acceptance of India’s actions based on humanitarian reasons.[53] However, Wheeler correctly rebuts this analysis, noting the lack of evidence supplied by Klintworth to support this claim and the fact that the position is directly contrary to contemporary opinions expressed by the majority of the General Assembly and Security Council. While India could have been treated more harshly, “[…] it is a mistake to confuse mitigation with moral approval.”[54]

6. Certain NATO states’ reliance on the Indian case study as an example of a humanitarian intervention

The 1971 Indian intervention was largely forgotten in the international legal sphere for almost thirty years, up until 2000 when, before the International Court of Justice, certain NATO states sought to defend their air bombing campaign in Kosovo in 1999. In doing so, they defended their actions as a humanitarian intervention and relied on, inter alia, India’s intervention in East Pakistan in 1971 as evidence of the doctrine in customary international law. The case was preliminarily dismissed by the Court due to jurisdictional concerns, however the international community has widely regarded the intervention to be “illegal but legitimate”. Why is this a significant resurrection of the historical case study? Primarily for three reasons:

First, India, has never claimed that the intervention in 1971 was based on primarily humanitarian concerns. Throughout the intervention, and to date, India has defended its use of force as an act of self-defense. How then could certain NATO states redefine India’s defense and what kind of effect does this reinterpretation have on customary international law? In other words, what if the actor (in this case India) defends their actions in a particular way while the international community defends the actor’s actions in a completely different way (self-defense is a purely self-interested defense while humanitarian intervention necessarily presumes some form of altruism). Which interpretation may legitimately form state practice in customary international law?

Second, certain NATO states changed their opinions about the legitimacy of India’s intervention over time. In 1971, in the UN Security Council and General Assembly, these same states asserted Pakistan’s sovereignty and condemned India’s intervention. The US even went so far as to impose sanctions on India. How then could these same states now thirty years later not only condone India’s intervention but also rely on it to defend their own actions? In other words, how can this change of position by certain NATO states be reconciled with the opinio juris requirement in customary international law?

Classical positivism requires the determination of legally binding custom to be based on “[…] habitual conduct of states [which is an] objective determination of fact.”[55] ‘As it is’ needs to be differentiated from ‘as it should be’, and formal sources need to be differentiated from moral and political arguments.[56] Such a strict reading of the law would likely criticize not only certain NATO state’s reinterpretation of the legitimacy of the 1971 intervention, but would also criticize certain NATO states’ reliance on the doctrine of humanitarian intervention.

Even Bruno Simma and Andreas L. Paulus’ idea of “modern positivism” which provides a far more flexible approach to determining the existence of customary international norms may not adequately explain NATO’s reliance on a case study they once objected to as evidence of state practice. Simma and Paulus believe modern positivism goes beyond simply “state will”. They consider soft law as important to interpret rules, view law as a vehicle of social change,[57] and permit the blurring between opinion juris and state practice so as to allow for rapid development of customary international law.[58] For example, Simma and Paulus contend opinio juris may also be deduced from soft law sources like voting records in international fora. However, certain NATO states consistently voted against the Indian intervention in the UN General Assembly and Security Council in 1971. This is evidence exactly contrary to the subjective obligation showing a sense that certain NATO states felt bound to an international law (in this case, humanitarian intervention). Thus it is difficult to reconcile NATO’s reclassification of the legitimacy of the 1971 intervention with the opinion juris requirement in customary international law.

Finally, and importantly, India has consistently articulated its opposition to the doctrine of humanitarian intervention. India is an ardent proponent of the sacrosanct nature of state sovereignty and territorial integrity and does not believe humanitarian concerns trump these values.[59] For example, quite recently India abstained from UN Security Council Resolution 1973 on intervening in the 2011 Libyan crisis.[60] NATO’s argument that India’s intervention was humanitarian in nature is therefore contradictory to India’s long-held position on the issue. Moreover, since 2000 was the first time humanitarian intervention was ever advanced as a legal defense before an international judicial forum, and given the different reactions of the international community to India’s 1971 intervention as compared to certain NATO states’ intervention in Kosovo, this reinterpretation is significant as it demonstrates ways in which the Global South may be dominated by the Global North in international affairs, in terms of discourse, institutions and norm creation.

III. Analysis of the NATO/Indian case study

Part 1 of this section will rely on Koskenniemi’s ideas on sovereignty and the production of legal arguments to demonstrate how it was possible for India to claim the 1971 intervention was an act of self-defense while certain NATO states claimed it was an example of a humanitarian intervention. Part 2 will address how it was possible for certain NATO states to change their mind about the legitimacy of the intervention. This section will begin by outlining Koskenniemi’s “hegemonic contestation” model, explaining how the NATO/India case study is an example of how this hegemonic contestation works in practice. However, unlike Koskenniemi who believes the answers to international legal questions are indeterminate and unpredictable, this section will then explain how the NATO/Indian case study shows the Eurocentric nature of international law and how international legal questions are usually resolved in favor of certain power dynamics. By focusing on arguments by TWAIL theorists, this section will show structural biases in the international system, which have resulted from the continued relevance of the colonial foundations of international law, that favor the Global North and marginalize Third World opinion.

1. One action, two claims: the significance of the same intervention resulting in two completely different legal justifications

In 1971, India claimed its intervention was an act of self-defense, while in 2000 certain NATO states branded India’s intervention as humanitarian in nature. What does the fact that the same act can be defended in two completely different ways tell us about the nature of international law?

Given that most jus ad bellum debates surround different understandings of the notion of sovereignty, while looking at what the NATO/Indian case study signifies about the nature of international law it is useful to deconstruct the concept of sovereignty. In this regard, Koskenniemi’s ideas on the role of sovereignty within a legal argument is particularly instructive. Within the international legal discourse, the content and use of the concept of sovereignty flows from two contradicting assumptions. These assumptions are both theoretically equally legitimate, and they control the types of legal arguments that are possible depending on which perspective one adopts.[61]

Sometimes sovereignty is taken to mean the completeness of State power within its territory which is inherent in the concept of statehood and precedes the international normative order. At other times, sovereignty is conceptualized as a “systematic” project, determined from within the international normative system which in this sense precedes it.[62]

Sovereignty therefore signifies a state’s subjective freedom and also its objective submission to some kind of higher order and neither expression of sovereignty theoretically trumps the other.[63] Thus the idea of sovereignty is both contradictory and indeterminate, and since competing ideas of sovereignty form the basis of international legal arguments (especially those involving the use of force), competing arguments in international law are both possible and legitimate in theory. [64]

“It is impossible to define ‘sovereignty’ so as to contain the idea of the State’s subjective freedom as well as that of objective restraints to such freedoms […] it emerges that ‘sovereignty’ does not have an immutable ‘essence’ which could tell whether an act violates it or not”.[65] This permits arguments in favor and opposed to an intervention to be equally legitimate in theory, depending on which perspective of sovereignty one adopts.

Applying these definitions of sovereignty to the NATO/India case study, we can see it was possible for India to claim self-defense based on “refugee aggression,” thus expressing India’s subjective freedom and appealing to its right to take independent action, contrary to the opinion of the international community, in order to protect its borders. It was also equally theoretically valid for the international community to accuse India of inventing a new defense and violating traditional understandings of the international ban against the use of force, thus appealing to India’s objective submission to the international system.

Similarly, applying these theories to the arguments put by NATO states in 2000, we can see that by advancing the defense of humanitarian intervention, certain NATO states were indirectly arguing for a conditional conception of state sovereignty, arguing that a state’s international acquiescence to certain basic standards of humanity preceded a state’s sovereignty. India, on the other hand, was able to argue the opposite position and, while noting the distressing situation in the region, viewed the international order as secondary to sovereignty and asserted the former Yugoslavia right to territorial integrity.[66]

Koskenniemi describes two opposite projects that characterize the international legal discourse. Ascending arguments view the world order as secondary to sovereignty and perceive the international system as attaining its legitimacy from the presumed legitimacy of state power, while descending arguments contend that the legitimacy of the world order precedes that of the individual state and so states attain their sovereignty through the given legitimacy of the normative international order.[67] In a strict sense, while descending arguments view sovereignty as a “legally limited ‘competence’”[68], ascending arguments view sovereignty as an absolute competence.

Ascending contentions lead “[…] from the oppressive uniformity of global domination into self-determination and identity” while descending projects “lead from sovereign egoism to world unity”.[69] International law can therefore be contested from two opposite camps: it can either be argued as being “oppressively homogeneous” and universalization can be seen as a hegemonic endeavor with arguments highlighting diversity over unity and allegations that universal claims originate from powerful states attempting to use unity to exercise control over weaker nations. On the other hand, it can be seen as “egotistically anarchic:” used as a tool by powerful states seeking to justify their actions at the expense of human rights, the environment or trade. The starting point for both arguments is a negative characterization of the current interpretation of the law. The actor then aspires to overturn this position by putting forward an opposite argument of either unity or diversity, both of which are equally theoretically possible.[70]

In 1971, India put forward an ascending argument and claimed the rules banning the use of force in those circumstances were “oppressively homogeneous” considering the internationalization of the conflict due to the escalating refugee situation and the position that the international community was aware the situation in East Pakistan was dire indicated that they were shielding Pakistan from responsibility. India claimed that they should therefore be permitted to rely on a “refugee aggression” self-defense claim due to the exceptional nature of the conflict and its right to protect its own territorial integrity.[71] By comparison, in 2000, while relying on the doctrine of humanitarian intervention before the ICJ, certain NATO states put forward a descending argument about the validity of humanitarian intervention (citing the 1971 Indian case study with approval), and claimed that the traditional laws banning the use of force were “egotistically anarchic” as they permitted Serbian forces to continue persecuting the Kosovo Muslim population with impunity and “[…] projected the Charter letter as an anachronistic shield over domestic injustice”[72].

Therefore, the NATO/India case study demonstrates that international law permits the same incident (in this case, an intervention based on humanitarian concerns in the intervening state) to be justified (and opposed) from two different perspectives, depending on which conception of sovereignty is employed – ascending or descending. Given the indeterminate nature of sovereignty, both arguments can equally be rebuffed using the competing idea of sovereignty and both arguments equally theoretically legitimate.

2. Certain NATO states’ reinterpretation of the legitimacy of India’s 1971 intervention

This section will explore how was it possible for certain NATO states to change their mind about the legitimacy of India’s 1971 intervention, and what this dynamic positioning tells us about the nature of international law?

i. Hegemonic contestation

Koskenniemi’s “hegemonic contestation” model asserts that international law is well explained as a set of politically motivated legal arguments being projected as universal claims, the content of which changes based on social and political circumstances. Thus a fundamental characteristics of international law is its uncertain and fluid nature, which permits legal arguments to be easily amended depending on the political circumstances at different points of time in history.

International law, according to Koskenniemi, “[…] is better understood as an aspect of hegemonic contestation, a technique of articulating political claims in terms of legal rights and duties.”[73] In other words, international law is a form of legal argumentation in which actors seek to make their political preferences appear to be universal ones. This aspect makes international law seem like a so-called “apology for power”. However, by relying on universal norms, actors are distancing themselves from their own idiosyncratic preferences, and thus the system also creates an international legal community. This aspect enables international law to contain a utopian aspect.[74]

The idea that it is possible to articulate a set of absolute universal norms seems absurd given the heterogeneity of interests that exist in the international community and there is no representative of the whole community that is not also a representative of a particular member of the community. Thus, proclamations of universal international laws always appear from the perspective of a particular political actor in a particular situation.[75] The reason why this is “hegemonic” is because the goal of both actors in the legal debate is to project their partial view of a meaning they have ascribed to a particular rule to appear as a total view and make their preference to seem as the universal one.[76]

This is precisely what certain NATO states were doing in 1971: arguing their political preferences and articulating them as legal claims. By arguing within a certain set of political circumstances (the Cold War) in 1971, these NATO states were “[…] dressing political claims in a specialized technical idiom […]”.[77] These NATO states agreed that the situation in East Pakistan was dire, however despite that, they asserted Pakistan’s sovereignty and claimed the Indian intervention was illegal. Further, in 2000, during a similar situation, where NATO used force in Kosovo without Security Council authorization, and despite their objection to use force in 1971, certain NATO states then branded the 1971 Indian intervention a humanitarian intervention and justified their actions under the doctrine (thus attempting to project their partial understanding of the law as a universal one).

Moreover, since “[…] neither sovereignty nor world community has any fixed content, the choice between the two cannot be made as a principled commitment, only as hegemonic strategy […] Both appear on surfaces on which political actors can reciprocally make and oppose hegemonic claims.”[78] Thus while certain NATO states could assert Pakistan’s right to sovereignty over humanitarian concerns in 1971 by relying on one conception of sovereignty and the international community, they could amend their understanding of both terms in 2000 while arguing in favor of humanitarian intervention.

Such a hegemonic contestation model suggests that international laws are intentionally vague so as to ensure the rule is not over-inclusive or under-inclusive, and in order to permit easy changes regarding whose policy to include and whose to oppose. This political side to international legal debates has been prevalent in defining words like “self-defense” and “self-determination”. This is also why there has been an inability to find an agreeable definition for “terrorism”. Who will be branded a terrorist and who will be a freedom fighter, and at what point of time will this definition change? Another example is the binding definition of “aggression” (Article 1 of the 1974 GA Resolution on the Definition of Aggression) which is extremely open-ended and includes a non-exhaustive list of nine examples and a provision that the Security Council can determine other acts of aggression in accordance with the Charter (Article 4).[79]

Another example of how this hegemonic model has worked in the international arena relates to the ascending and descending arguments of international law proposed in the previous section of this paper. As stated above, ascending arguments are those that view state sovereignty as superseding international order and are projects of independence and identity, while descending arguments hold the opposite to be true and are projects of world unity. Traditionally, the Third World is associated with opposing Western hegemony and relying primarily on ascending arguments. However, recently the US has relied on the doctrine while opposing the International Criminal Court.[80] This is also true about the US’s arguments concerning the doctrine of pre-emptive self-defense and the so-called “War on Terror”. In fact, Koskenniemi has classified most of the US foreign policy under Bush era as an ascending project.[81]

ii. Third World Approaches to International Law

There is, however, one significant aspect of Koskenniemi’s theory that does not explain the NATO/Indian case study. Koskenniemi believes that answers to legal questions are indeterminate and unpredictable, as no position trumps the other, and so it is difficult to applaud or criticize international behavior. International law therefore lacks any constraining power.[82] However, while this may be true in theory, and international law is indeed indeterminate, in practice certain legal claims do win. In the NATO/Indian case study, certain NATO states were able to perform a volte face in terms of their position on the legitimacy of India’s 1971 intervention and also managed to rebranded India’s intervention for their own purposes without outcry or reprisal. No sanctions were applied on certain NATO states in 1999 and there was wide international consensus that the intervention in Kosovo was illegal but legitimate, while in 1971 India received harsh condemnation from the international community and the US imposed sanctions on India. These two interventions, and the legal defense put forward by the intervening states respectively, were treated very differently by the international community.

Contrary to Koskenniemi’s position, the NATO/Indian case study demonstrates the commonly held TWAIL position that, while the indeterminacies in international law are real, these indeterminacies are usually resolved by looking at the social context, general legal principles and policy considerations. Approaching the issue in such a way generally disfavors the Third World since these are usually “[…] shaped by colonial views of the world and the conceptual apparatus that supports it.”[83] Thus, while international law is constraining and the better legal argument wins, it usually only wins in theory and power usually controls action.[84] In practice, Western values usually trump Third World concerns, and this is largely due to the continued relevance of the colonial foundations of international law. Third World perspectives are usually silenced, even when, as in this case, the Western states were not involved in the incident and the Third World state was one of the principle participants.

Certain NATO states’ reliance on the 1971 Indian case study is especially significant as India is opposed to NATO’s 1999 intervention and rejects the doctrine of humanitarian intervention.[85] Thus, by projecting this interpretation to India’s 1971 intervention, these Western states were claiming that even Third World states like India have previously conducted such interventions thus indirectly portraying a Third World acceptance of humanitarian intervention.[86] Furthermore, the fact that these NATO states were permitted to rely on a case they once opposed as evidence of a doctrine in customary international law with almost no notice by the international community shows the Western biases prevalent in the international legal system.

“International law claims to be universal, although its creators have unambiguously asserted its European and Christian origins.”[87] Tracing the origins of modern international law to Hugo Grotius and Francisco de Vitoria, Makau Matua claims that: “[…] international law is premised on Europe as the center, Christianity as the basis for civilization, capitalism as innate in humans, and imperialism as a necessity.”

Rather than viewing colonialism as marginal and unrelated to international law, colonialism should in fact be seen as central to the formation of international law, given the relationship between colonial expansion and universality. Not only was international law used to legitimize the suppression of Third World people, the doctrines used to assimilate non-Europeans to an “international” system i.e. sovereignty and even law, were themselves a product of the power and subordination relationship of the colonial experience.[88] Furthermore, these structural biases in the discipline persist and are based on shared assumptions of culture and race which in turn have their roots in colonialism.[89] Such issues of disparities in global power are, however, hidden by the “[…] fiction of a system of sovereign and equal states.”[90]

The nineteenth century doctrine of recognition stated that sovereignty existed when and where Europeans recognized it. International law in itself developed through encounters between Europe and the rest of the world, and “[…] the notion of sovereignty itself was key to justifying, managing, and legitimizing colonialism.”[91] International law, during colonial times, therefore legitimated imperialism.[92] Colonization was viewed as something “good” for non-Europeans.[93] “The so-called “Age of Empire” thus provided the practical impetus and theoretical approval for the forced assimilation of non-European people into international law, which was a truly Eurocentric vision of what the world is and how it should operate.” [94]

In a frequently quoted passage, Anghie describes the relationship between international law and sovereignty:

The colonial confrontation was not a confrontation between two sovereign states, but between a sovereign European state and a non-European state that, according to the positivist jurisprudence at the time, was lacking in sovereignty. Such a confrontation poses no conceptual difficulties for the positivist jurists who basically resolve the issue by arguing that the sovereign state can do as it wishes with regard to the non-sovereign entity, which lacks the legal personality to assert an any legal opposition.[95]

Anghie argues that, even during the decolonization process, non-European sovereignty was ambiguous as non-Europeans had to submit to a completely foreign set of standards rather than affirm any kind of genuine identity.[96] This is because while sovereignty for Western states has always been assumed in international law, Third World sovereignty was created through the decolonization process. This is best exemplified by the Mandate System of the League of Nations that perceived sovereignty as something that could be created using international law and institutions.[97]

Another common trait of international law that emerges through TWAIL analysis is the concept of a “civilizing mission”. This takes the form of the “us” versus “other” or “developed” versus “undeveloped” divide. Anghie and Chimni point out that “[…] in the context of the ongoing problem of violence in the international system, it is significant to note that since the beginnings of international law, it is frequently the “other”, the non-European […] who [is] identified as the source of all violence […].”[98] However if such violence is inflicted by the colonial power it is permissible under self-defense or because it is humanitarian in nature aimed at saving non-Europeans from themselves.[99]

This point is demonstrated in the NATO/Indian case study. When India used force in self-defense in 1971 it was initially considered illegitimate by most Western states, and NATO’s use of force in 1999 was argued as legitimate based on humanitarian intervention. Moreover, the entire idea of a “humanitarian intervention” reflects the concept of a civilizing mission, with Western states (who are those most in favor of humanitarian intervention) feeling a sense of duty to rescue those they have deemed to be in a disadvantaged position and, given the historically sporadic record of such interventions, those they have deemed to be worthy of their support.

Therefore, Koskenniemi explains how competing conceptions of sovereignty and the use of either ascending or descending arguments in the international legal discourse enables the same act to be defended from two different and equally theoretically possible approaches, depending on which idea of sovereignty one takes as a starting point. Hence it was simultaneously possible for India to claim the 1971 intervention was an act of self-defense and for certain NATO states to claim it as an example of a humanitarian intervention. In addressing how it was possible for certain NATO states to change their mind about the legitimacy of the intervention, the NATO/Indian case study is perfectly captured in Koskenniemi’s hegemonic contestation model. However, unlike Koskenniemi who believes the answers to international legal questions are indeterminate and unpredictable, the NATO/Indian case study demonstrates that, in practice, the outcomes of legal debates are usually resolved in opposition to Third World concerns given the Westerncentric nature of international law which is a consequence of the continued relevance of colonialism on international law.

IV. Conclusion

1971 was a bloody year in South Asia. There is overwhelming evidence of the dire humanitarian situation in East Pakistan resulting from the civil war. There is also compelling proof that India was indeed suffering due to the spill-over effects of the humanitarian situation in East Pakistan and within the context of an international community that was unwilling to act and growing domestic pressure for an intervention, India decided to intervene and justified their action under Article 51 of the UN Charter. The intervention was widely condemned by the international community at the time. Then, in 2000, certain NATO states rebranded the Indian intervention as an example of a humanitarian intervention and relied on it as evidence of the doctrine in customary international law.

The NATO/Indian case study provides useful evidence that Western biases in the international legal system are significant. Certain NATO states not only changed their mind about the legitimacy of India’s 1971 intervention, they also reinterpreted the defense, with limited notice to the international community. The fact that these NATO states could superimpose the doctrine of humanitarian intervention to explain the actions of India (a nation that opposes the doctrine) demonstrates the colonial underpinnings that continue to impact the development of international law. Moreover, comparing the harsh condemnation India received after the 1971 intervention with the “illegal but legitimate” verdict labelled on the NATO intervention reveals further structural faults in the international system that favor Western states over the Third World.

Thus Koskenniemi’s ideas on the competing and equally valid conceptions of sovereignty resulting in either ascending or descending arguments explains that international law is indeterminate. This aspect of international law explains how India could defend its actions as self-defense in 1971 and certain NATO states described it as a humanitarian intervention in 2000. Moreover, the hegemonic contestation theory explains that international law is best explained as a technique of legal argumentation where actors seeks to make their individual political preferences seem like universally accepted norms, and given the fickle nature of political ties international law is intentionally vague. Viewing international law as such a hegemonic technique is useful in understanding how it was possible for certain NATO states to change their mind about the legitimacy of the 1971 intervention.

However, unlike Koskenniemi who argues that this aspect of international law makes law unpredictable and lacking of any constraining force, the NATO/Indian case study shows that, given the history of international law’s engagement with the Third World, it may be possible to predict how the law will treat the Third World in the future. While in theory it may be possible to debate answers to legal questions, in practice legal issues are generally resolved in ways that further Western interests and undermine Third World concerns. This is largely due to the lasting impact of colonialism on international law that has perpetuated North/South divides and created the political and legal conditions where Third World opinion is perceived as inferior to that of the West.

V. Bibliography

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Thomas M. Franck, and Nigel S. Rodney, “After Bangladesh: the law of humanitarian intervention by military force” (1973) 67:1 American Journal of International Law 275.

U Thant, View from the UN (Garden City, N.Y.: Doubleday, 1978).

Urvashi Aneja, “India, R2P and Humanitarian Assistance: A Case of Norm Containment, (2014) 6:1 Global Responsibility to Protect 227.

Usha Natarajan, “A Third World Approach to Debating the Legality of the Iraq War” (2007) 9:1 International Community Law Review 405.

Ved P. Nanda, “A Critique of the United Nations Inaction in the Bangladesh Crisis” (1972-1973) 49:1 Denver Law Journal 53.

[1] Jose-Manuel Barreto, “Six Books: International Law, Human Rights and the Politics of the Turn to History” Critical Legal Thinking (27 March 2015) online: Critical Legal Thinking <http://criticallegalthinking.com/2015/03/27/six-books-international-law-human-rights-politics-turn-history/>.

[2] Case concerning the legality of the use of force (Serbia and Montenegro v. Belgium), Preliminary Objections, [2004] ICJ Rep 279.

[3] Antony Anghie and B.S. Chimni, “Third World Approaches to International Law and Individual Responsibility in Internal Conflicts” (2003) 2:1 Chinese Journal of International Law 77 [Anghie and Chimni] at 101.

[4] Ved P. Nanda, “A Critique of the United Nations Inaction in the Bangladesh Crisis” (1972-1973) 49:1 Denver Law Journal 53 [Nanda].

[5] “[The Awami League] secured 288 of the 300 seats in the East Pakistani Assembly and also gained 167 of the 169 seats allocated to East Pakistan in the National Assembly.” Nicholas J. Wheeler, Saving Strangers: Humanitarian Intervention in International Society (New York: Oxford University Press, 2000) [Wheeler] at 56.

[6] Since independence the relationship between East and West Pakistan became increasingly polarized. Besides being physically separated by India, there were also lots of differences regarding the ethnicity, culture, language, and economy between East and West Pakistan. For example, in West Pakistan fifty-five million people spoke the official language of Urdu compared to only 2% of the population in East Pakistan (as over 95% of the seventy-five million people spoke Bengali). Also, eventually West Pakistan became more industrialized and prosperous than East Pakistan, and took complete control of the military and bureaucracy, which was an understandable concern for East Pakistan. This led to the population of East Pakistan to feel that they were “a colonial outpost by the West Pakistan Government” Wheeler, supra note 3 at 56. See also Richard Sisson and Leo E. Rose, War and Secession: Pakistan India, and the Creation of Bangladesh (Berkeley: University of California Press, 1990) [Sisson and Rose] at 8-34.

[7] Wheeler, supra note 3 at 56.

[8] West Pakistan interpreted the word “confederation” by the Awami League to imply such secessionist goals. Though Ved P. Nanda contends that “[t]his was accompanied by a change in the East Bengali mood which began to reflect desire for complete independence as opposed to mere autonomy”. Nanda, supra note 2 at 55.

[9] “The last attempt at resolving the conflict took place between 16 and 24 March 1971 and involved face-to-face meetings between the leader of the Awami League, Sheikh Mujibur Rahman, President Yahya Khan, and the leader of the West Pakistan People's Party, Zulfikar Ali Bhutto”. Wheeler, supra note 3 at 57.

[12] International Commission of Jurists, Events in East Pakistan, 1971: A Legal Study by the Secretariat of the International Commission of Jurists (Geneva, 1972) online:

[14] Thomas M. Franck, and Nigel S. Rodney, “After Bangladesh: the law of humanitarian intervention by military force” (1973) 67:1 American Journal of International Law 275 at 275 [ Franck and Rodney].

[15] Leo Kuper, The Prevention of Genocide (New Haven: Yale University Press, 1985) cited in Wheeler, supra note 3 at 56-58.

[16] International Commission of Jurists Report, supra note 10 at 97.

[17] Karel Wellens, Resolutions and Statements of the United Nations Security Council: (1946 - 1989) a Thematic Guide (London: Martinus Nijhoff Publishers, 1990) at 342.

[19] See Repertory of United Nations Practice, “Article 98”, Suppl. 5 Vol. V (1970-1978), available at http://legal.un.org/repertory/art98/english/rep_supp5_vol5-art98_e.pdf, at 44-46.

[20] In letters to the Pakistani Government on 5 and 22 April 1971, SG U Thant accepted Pakistan’s position that the conflict in East Pakistan qualified as an “internal conflict” and hence fell within the domestic jurisdiction of the Pakistani government. Cited in Wheeler, supra note 3 at 58.

[21] U Thant, View from the UN (Garden City, N.Y.: Doubleday, 1978) cited in Wheeler, supra note 3 at 58.

[22] GA/10922-DEV/2790 (6 December 1971).

[23] Wheeler, supra note 3 at 58 and 66,

[25] Wheeler, supra note 3 at 58.

[26] Wheeler, supra note 3 at 58.

[27] The border states of West Bengal, Assam and Tripura had been impoverished and unstable since the 1947 India/Pakistan partition and the government feared leftist revolutionaries such as the Naxalites to cause additional tension. in Gary J. Bass, The Blood Telegram: Nixon, Kissenger and a Forgotten Genocide (Toronto: Alfred A. Knopf, 2013) [Bass] at 120. See also D.K. Palit, “The Lightening Camp: The Indo-Pakistan War 1971”, (Compton: Salisbury, 1972) at 38 Sisson and Rose, supra note 4 at 178-181, 206.

[28] Prime Minister Indira Gandhi aptly described the refugee problem: “The regions which the refugees are entering are over-crowded and politically the most sensitive parts of India. The situation in these areas can very easily become explosive. The influx of refugees thus constitutes a grave risk which no responsible government can allow to develop.” NMML, Haskar Papers, Gandhi to world leaders, 14 May 1971 cited in Bass supra note 25 at 137.

[29] Sonia Cordera, India’s response to the 1971 East Pakistan crisis: hidden and open reasons for intervention (2015) 17:1 Journal of Genocide Research 45 [Cordera] at 51 and 53.

[30] Cordera supra note 27 at 49.

[31] Wheeler, supra note 3 at 66.

[32] David A Martin, T. Alexander Aleinikoff, Hiroship Motomura and Maryellen Fullerton, Forced Migration: Law and Policy (St. Paul: Thompson/West American Case Book Series, 2007).

[34] Wheeler, supra note 3 at 60

[35] Wheeler, supra note 3 at 61.

[36] International Commission of Jurists Report, supra note 10 at 57.

[37] SC, 26th Year, 1606th Meeting, S/PV.1606 (4 December 1971) at 17.

[38] See UN Document S/PV.1606 supra note 36 at 15 and 17. “These incidents happened and, as a result, 10 million people came to India as refugees. Now, was that not a kind of aggression? If aggression against another foreign country means that it strains its social structure, that it ruins its finances, that it has to give up its territory for sheltering the refugees, if it means that all its schools have to be closed, that its hospitals have to be closed, that its administration is to be denuded, what is the difference between that kind of aggression and the other type, the more classical type, when someone declares war, or something of that sort” UN Document S/PV.1606 supra note 36 at 15.

[39] UN Document S/PV.1606 supra note 36 at 17.

[40] UN Document S/PV.1606 supra note 36 at at 3-4.

[41] See SC, 26th Year, 1608th Meeting, S/PV.1608 (6 December 1971) at 8-9 and 27-28 SC, 26th Year, 16011th Meeting, S/PV.1611 (12 December 1971) at. 4-14 SC, 26th Year, 1607th Meeting, S/PV.1607 (5 December 1971) at 18 SC, 26th Year, 16013th Meeting, S/PV.1613 (13 December 1971) at. 21, 23 SC, 26th Year, 1621th Meeting, S/PV.1621 (21 December 1971) at 11-12.

[42] Wheeler, supra note 3 at 62.

[43] The Indian Permanent Representative to the UN described the recommendation as “unrealistic, and hence unacceptable” and stated that “the good thing about a General Assembly resolution is that it is recommendatory, not mandatory.” Available at UN Monthly Chronicle (No. 1) at 28-29 (January, 1972) cited in Wheeler, supra note 3 at 69.

[44] SCR 307 was rightly described as “meaningless” by Wheeler, as the de facto reason why India ordered a ceasefire in the first place was due to the facts on the ground, and not because of the action of the UN. Wheeler, supra note 3 at 70.

[45] UN Document S/PV.1608 supra note 40.

[46] Wheeler, supra note 3 at 65-66.

[47] Ambassador Bush stated that “[…] United States has never supported this action in any way. We have always recognized that the events of 25 March had a very important impact on India, and we have always recognized that the influx of refugees into India broadened the danger of communal strife. We fully appreciated both the social and the economic strain the influx of refugees imposed on India. The fact that the use of force in East Pakistan in March can be characterized as a tragic mistake does not, however, justify the actions of India in intervening militarily and placing in jeopardy the territorial integrity and political independence of its neighbor Pakistan.” UN Document S/PV.1611 supra note 40 at 2.

[48] Wheeler, supra note 3 at 65-66.

[49] The Soviet Union’s Ambassador to the UN, Ambassador Malik, claimed: “It is quite obvious that the main cause is to be found in the well-known actions of the Government of Pakistan against the population of East Pakistan [the conflict] has become international in character and has given rise to international consequences.” UN Document S/PV.1608, supra note 40 at 12-14.

[50] Wheeler, supra note 3 at 69. It is noteworthy that Pluralist conception of international society broadly rejects the doctrine of humanitarian intervention in favor of state sovereignty while a Solidarist position favors justice over order.. Wheeler, supra note 3 at 71 and 77.

[51] Fernando Teson, Humanitarian intervention: an inquiry into law and morality (Dobbs Ferry, N.Y.: Transnational Publishers, 1988) at 188 cited in Wheeler, supra note 3 at 70.

[52] Wheeler, supra note 3 at 70.

[53] Gary Klintworth, Vietnam's intervention in Cambodia in international law (Canberra: Australian Government Pub. Service, 1989) at 49 cited in Wheeler, supra note 3 at 71.

[54] Wheeler, supra note 3 at 71.

[55] Bruno Simma & Andreas L. Paulus, “The Responsibility of Individuals for Human Rights Abuses in Internal Conflicts: A Positivist View” (1999) 93: 2 American Journal of International Law 302 [Simma and Paulus] at 27. (Using the concept to explain the rapid development of customary international law in internal armed conflicts).

[56] Simma and Paulus, supra note 54 at 26.

[57] “Only by being normative can law preserve a balance between its transformative force, which does not accept reality, as it is, and its roots in social reality […] Moral and political factors are not alien to the law” Simma and Paulus, supra note 54 at 31-32.

[58] Simma and Paulus, supra note 54 at 30.

[59] See Garima Mohan, “India and the Responsibility to Protect” (2014) 4:2 Asia Pacific Centre for the Responsibility to Protect 1, who argues that while India supports Pillars I and II of the R2P doctrine (i.e. it is the primary responsibility of states to protect their populations and the international community must help build state capacity to protect its citizens) India is primarily opposed to pillar III (which requires the international community to act in a timely and decisive manner to prevent atrocities as India sees this as a right to military intervention. See also Urvashi Aneja, “India, R2P and Humanitarian Assistance: A Case of Norm Containment, (2014) 6:1 Global Responsibility to Protect 227, who argues that India’s ideas on humanitarian assistance and the R2P doctrine largely reflect pluralist conceptions of international law. Satish Nambiar, “India: An Uneasy Precedent” in Schnabel, Albrecht, and Thakur, Ramesh, Kosovo and the Challenge of Humanitarian Interventio : Selective Indignation, Collective Action, and International Citizenship. (Tokyo, JPN: United Nations University Press, 2000) [Nambiar], claims that “[t]he strategic community of India has commented on [NATO’s involvement in the Kosovo bombing campaign] with near unanimity as regards their long-term implications. The aspects that have generated particular distress and concern are the arrogant violation of all international treaty norms, the transgression of state sovereignty as one has always understood it, the indiscriminate destruction of civilian infrastructure, and the killing of innocent civilians, by a regional organization comprising mostly of the developed countries of the Western world.”

[61] Martti Koskenniemi, “Sovereignty Prolegomena To a Study of the Structure of International Law as Discourse” (1987) 1:2 Kansainoikeus Ius Gentium 71 [Koskenniemi (1987)] at 71.

[62] Koskenniemi (1987), supra note 60 at 72.

[63]“The idea of sovereignty is inconsistent inasmuch as it expresses the State’s ‘subjective freedom’ as well as its ‘i objective submission’ to an international normative order”. Koskenniemi (1987), supra note 60 at 106.

[64] “International legal discourse does not establish priority between these conflicting models of legitimation […] The discourse cannot produce any coherent solutions to the inherent contradictions in the discourse.” Koskenniemi (1987), supra note 60 at 71-72.

[65] Koskenniemi (1987), supra note 60 at 83.

[67] Koskenniemi (1987), supra note 60 at 72.

[68] Koskenniemi (1987), supra note 60 at 73.

[69] Martti Koskenniemi, “International law and hegemony: a reconfiguration” (2004) 17:2 Cambridge Review of International Affairs 197 [Koskenniemi (2004)] at 200.

[70] Koskenniemi (2004), supra note 68 at 200-201.

[71] It is noteworthy that Koskenniemi too highlights the exceptional nature of India’s ascending self-defense justification for its intervention in East Pakistan in 1971 agreeing that “[…] when extended to cover potential threats, sovereignty, too, may be invoked to support cosmopolitan causes.” Koskenniemi (2004), supra note 68 at 204.

[72] Koskenniemi (2004), supra note 68 at 203.

[73] Koskenniemi (2004), supra note 68 at 197.

[74] Koskenniemi (2004), supra note 68 at 197.

[75] “This is why it is pointless to ask about the contribution of international law to the global community without clarifying first what or whose view of international law is meant. However universal the terms in which international law is invoked, it never appears as an autonomous and stable set of demands over a political reality.” Koskenniemi (2004), supra note 68 at 199.

[76] Koskenniemi (2004), supra note 68 at 199.

[77] Koskenniemi (2004), supra note 68 at 199.

[78] Koskenniemi (2004), supra note 68 at 202.

[79] Koskenniemi (2004), supra note 68 at 199-200.

[80] Koskenniemi (2004), supra note 68 at 201.

[81] Allan Sofaer, “On Necessity and Prevention” (2003) 14:1 European Journal of Human Rights 209.

[82] Anghie and Chimni, supra note 2 at 101.

[83] Anghie and Chimni, supra note 2 at 101.

[84] Anghie and Chimni, supra note 2 at 101.

[85] Satish Nambiar, “India: an uneasy precedent” in Albrecht Schnabel and Ramesh Chandra Thakur, Kosovo and the Challenge of Humanitarian Intervention : Selective Indignation, Collective Action, and International Citizenship (New York : United Nations University Press, 2000).

[86] It is noteworthy that the other two cases certain NATO states relied on were also interventions conducted by Third World countries – Vietnam’s 1978 intervention in Cambodia and Tanzania’s 1979 intervention in Uganda.

[87] Makau Matua, “What is TWAIL?” (2000) 94:1 Proceedings of the Annual Meeting-American Society of International Law 31 [Matua (2000)] at 33.

[88] Anghie and Chimni, supra note 2 at 84.

[89] Usha Natarajan, “A Third World Approach to Debating the Legality of the Iraq War” (2007) 9:1 International Community Law Review 405 [Natrajan] at 409. See also Matua (2000), supra note 85 at 37.

[90] Natrajan (2007), supra note 87 at 409. Matua further contends that while the UN is ostensibly universal, in reality European hegemony is prominent. The primacy of the UN Security Council over the UN General Assembly (a body that was composed primarily of Third World states) makes a mockery of the notion of the sovereign equality amongst states. Matua (2000), supra note 85 at 34.

[91] Matua (2000), supra note 85 at 33.

[92] Matua (2000), supra note 85 at 33.

[93] Matua (2000), supra note 85 at 33

[94] Matua (2000), supra note 85 at 34.

[95] Antony Anghie, “Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century International Law” (1999) 40:1 Harvard International Law Journal 1 at 3.

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