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Failure of international humanitarian law in the Nagorno-Karabakh conflict

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Following the collapse of the Soviet Union, various ethnic conflicts emerged in the post-Soviet space, such as Nagorno-Karabakh, Transnistria, South Ossetia, Abkhazia, and the ongoing Ukrainian crisis. One of these unresolved conflicts is that between Armenia and Azerbaijan over Nagorno-Karabakh, generally considered a ‘frozen conflict’.

However, there isgrowing evidence that this is not a frozen conflict as soldiers and civilians are dying on a daily basis I n the militarized zone along the front line, which culminated in the four-day war between Armenia and Azerbaijan on the 2-5 April 2016. Following this war, never before has the international spotlight focused so much on this area and specifically on this conflict, which could cause future instability for the entire region of the South Caucasus.

It is the clash between the principles of territorial integrity and self-determination, which underlie the conflict over Nagorno-Karabakh. Prior to this most recent war, the entire Azerbaijani population, numbering 40,000 from Nagorno-Karabakh and 560,000 from the seven occupied districts had fled Nagorno-Karabakh and lived as internally displaced persons (IDPs) distributed over Azerbaijan which is proving to be a huge obstacle to the peace settlement and international recognition.

This violation of human rights was expressed by Azerbaijan and the applicants in the Chiragov and Others v. Armenia case. Azerbaijan produced a number of facts and arguments in the Chiragov case demonstrating that Armenia clearly exercises full control over Nagorno-Karabakh and has stationed its soldiers in the occupied territories. The judgment on the Chiragov case and similarly the Sargsyan v. Azerbaijan case were only declared by the European Court of Human Rights (ECtHR) on the 16th June 2015.

The recent judgment on the case of Chiragov and Others v. Armenia has established that it was the Republic of Armenia and not ‘Nagorno-Karabakh Republic’ (NKR) which is the party to the conflict. The initial dispute between Azerbaijan and its citizens of Armenian origin in Nagorno-Karabakh, but supported by Armenians living in what was then the Armenian SSR, can be defined as an internal armed conflict. As such, it was governed by the provisions of Art. 3 common to the four Geneva Conventions (GCs) of 1949. This common Art. 3 expressly binds all parties to the internal conflict including insurgents in Nagorno-Karabakh even though they do not have the legal right as private individuals within the national territory of a state party to sign the GC of 1949. Any occurrence of hostilities between Armenia and Azerbaijan would trigger the definition of ‘international armed conflict’.

The judgment on 16th June 2015 of the ECtHR Grand Chamber in the Chiragov and Others v. Armenia case confirms the control of Armenia in Nagorno-Karabakh, which invalidates Armenia’s claim to the national liberation of the Karabakh Armenians. Armenia is thus deemed responsible for the occupation of Nagorno-Karabakh. The ECtHR decision has put an end to Armenia’s denial of its own responsibility for illegal occupation and the presence of armed forces in the territories of Azerbaijan. As such, the judgment confirms that the territories in question are ‘occupied’ rather than ‘liberated’ despite what Armenia says. International law does not outlaw a country to use force to liberate its territories occupied by another state. The judgment states:

Art. 42 of the Regulations concerning the Laws and Customs of War on Land, The Hague 18 October 1907 defines belligerent occupation as follows: “territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised”.

The case of Chiragov and Others v. Armenia concerns six Azerbaijani nationals who were forced to leave the district of Lachin in Azerbaijan by Armenian forces during the Nagorno-Karabakh War and since then have been unable to return to their homes and denied control over their property. The Court judged that Armenia had violated Art. 1 of Protocol No. 1 (protection of property) to the European Convention on Human Rights (ECHR), Art. 8 (right to respect for home and private and family life) and Art. 13 (right to an effective remedy) of the Convention. The crucial significance of this case is that the defendant is the Republic of Armenia and therefore NKR is not an independent or autonomous authority. The Court reaffirmed that from the outset of the conflict the Republic of Armenia has had a decisive influence over the NKR and the surrounding territories including the district of Lachin. Armenia is responsible for the occupation of Nagorno-Karabakh. The ECtHR decision has put an end to Armenia’s denial of its own responsibility for illegal occupation and military presence in the territories of Azerbaijan.

It should be noted that the applicants’ claim under Art. 14 (prohibition of discrimination) was rejected within the meaning of the Art. 14 of the Convention on the basis of ethnic and religious affiliation. On the other hand, on the same day, 16th June 2015, the Grand Chamber of the ECtHR gave its ruling on the Sargsyan v. Azerbaijan case and ruled that Azerbaijan had violated Articles 1 (Protocol No. 1 to the Convention), 8 and 13 of the ECHR.

Sargsyan was an Armenian refugee from Nagorno-Karabakh who had been forced to flee his home in Gulistan in 1992 following the conflict between Armenia and Azerbaijan over Nagorno-Karabakh. His claims that his rights to protection of property, to a family life, and to an effective remedy to the losses he had incurred, had all been violated, were all upheld by the ECtHR. The Court confirmed that although his village was in a disputed area, Azerbaijan had jurisdiction over it and had a duty to take alternative measures to secure Sargsyan’s rights. The Courtc onsidered that no separate issue arose under Art. 14, as Mr Sargsyan’s complaints under Art. 14 amounted essentially to the same complaints which the Court had examined under Articles 1 of the Protocol, 8 and 13 of the Convention. This is a successful precedent for Armenian refugees and IDPs to demand compensation from Azerbaijan. On the other hand, the compensation for the economically stretched Armenia would be a huge economic burden in the future compared to the more affluent Azerbaijan. However, the ECtHR’s decision was on the right of persons rather than on the conflict itself and thus can have no political influence in the final conflict settlement. The ECtHR’s verdicts do not solve the problem of Nagorno-Karabakh recognition nor refer to the status of Nagorno-Karabakh, but demonstrate the importance of refugee rights and conflict resolution. Both cases are about persons displaced by the conflict and had lost their properties and how they must now receive compensation. Because Armenia and Azerbaijan both intervened as third parties in the case in which the other case was a respondent they could be called interstate cases by proxy. Both of these cases are an important addition to the Court’s jurisprudence as there are thousands of other applications pending before the Court with the same issues.

These judgments provide an unprecedented opportunity for the international community to attempt to ensure that the thousands of victims of the conflict (refugees and IDPs) can now receive immediate redress without waiting for the final resolution to the conflict. As the situation between the two states appears to have deteriorated since April 2016 there is a great urgency for the deadlock to be broken.

In addition to the above, it should be noted that Armenia is a party to both the GCs of 1949 and Additional Protocols (AP) whereas Azerbaijan only ratified the GCs but not the APs. Hence, Armenia should have been bound by these stricter rules than Azerbaijan. Some rules were breached by Armenia in the Nagorno-Karabakh conflict such as the deportation and forcible transfer of civilians of an occupied territory. This first rule was breached by ethnic cleansing in the occupied territories of Azerbaijan. Secondly, Armenia arranged the continued mass settlement of its civilians to take up residence on occupied territory, which is contrary to Art. 85 (4) (a) of Protocol I. This was a grave breach of the Protocol as is discussed in the ‘Case of Major War Criminals’ in 1946 of the International Military Tribunal (IMT) at Nuremberg.

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International Law

Omicron and Vaccine Nationalism: How Rich Countries Have Contributed to Pandemic’s Longevity

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In a global pandemic, “Nobody is safe until everyone is safe”, – it is more of true with respect to the current globalized world system. It is said that crisis strikes the conscience and forces the ‘commonality of purpose’ on one another- and a major one in magnanimous scale. But the current Covid-19 crisis seems to have emerged in oddity with this very axiom, of course, due to self-serving, in WHO’s words- ‘self-defeating’ and ‘immoral’, approaches to dealing the pandemic by wealthy countries.

 A new and potentially more transmissible variant of Covid-19 virus, named Omicron by WHO, has been detected in South Africa. With scientists yet to be confirmed about new variant’s epicenter and its likely implication on human immune system, the emergence of Omicron has brought the long-warned case of ‘vaccine nationalism’– a phenomenon in which each nation prioritizes securing ample doses without considering impact on poor ones- to light.

Unheeded to the repeated warnings by scientists and pandemic specialists, many of the world’s richest countries had embarked on a vaccine-acquisition frenzy and hoarded jabs more than their requirements. Some countries have even gone to the extent that they had acquired up to four times what their population needed. Thereby, it has left majority of poor and developing countries, particularly those in global south, unvaccinated, with further risk of the virus being muted into more virulent variants, as in the case of Omicron.

A simple numerical data over vaccination rate across the world exposes the grotesques picture of pandemic recovery divide among the countries and immoral hoarding and hedging efforts on vaccine supplies by wealthy countries. As of now, whereas only 3% of people in low income countries have fully been vaccinated, the figure exceeds 60% in both high-income and upper-middle –income countries. In Africa, the most under-vaccinated and the epicenter of ominous Omicron, only some 7% of its 1.3 billion people are fully immunized.

Given the 9.1bn vaccines already manufactured and 12bn expected by the end of this year, the question is- why does vaccination effort remain so discriminatory and dividing across the regions? The answer, in most part, lies in the ‘pervasive economic inequity’ inherent in initial vaccine-acquisition process. With their enormous capacity to pay out, rich countries, even before pandemic took devastating hold, had pursued a ‘portfolio-approach’ in investing on vaccine development research by pharmaceutical companies- simultaneous investment on multiple ones. In exchange, those countries stroke bilateral deal with each drag company to secure enough prospective vaccine doses to inoculate their respective population several times over.

This absolutist vaccine-acquisition drive of wealthy nations had substantially thwarted the holistic approach taken up by World Health Organization(WHO) under the platform of COVAX, a vaccine sharing program. With the aim of reducing the delay in vaccine allocation to poor and developing countries, and thus ensuring vaccine equity, the multilateral platform didn’t get enough incentives from wealthy ones, since started its journey in April 2020. Both investment and acquisition by well-off countries, having bypassed the COVAX, kept them into the front of manufacturing line, thereby, contributed to the distributional injustice.

‘What starts wrong ends wrong’- initial absolutist approaches in vaccine acquisition started to be manifested in discriminatory distribution of vaccines. Thereby, an amazing scientific breakthrough, development of vaccine in record time, has been offset by awful political policy. In mid-2021, when one portion of world were almost on the track of carefree normalcy, people in bigger portion were struggling to breath. Today, problem is not in production of vaccines, as 2 billion doses of vaccines are being manufactured in every month, rather in the ‘unfairness of distribution’.

Early monopolistic exercise by G20 on acquisition and subsequent stockpile of vaccines has resulted in such galling situation that they have commandeered over 89% of vaccines already produced and over 71% of future deliveries. Consequently, the global inoculation drive, since started, is so unjust that for every vaccine delivered to the poorest countries, six times as many doses are being administered as third and booster vaccines in the richest countries. Adding further to the crisis being escalated, while more than 100 countries, for past one year, have desperately demanded emergency waiver on TRIPs related regulatory restriction on Technologies crucial to pandemic recovery, it has repeatedly been blocked by UK and EU.

Picture is not all-about gloomy with respect to vaccine collaboration but it is quite tiny to the scale of requirements. Rich countries could not deliver on the commitments they did to help poor countries immunize their population. For instance, WHO’s target of having 40% of global population vaccinated by end of this year, through COVAX, seems certainly to fall short largely due to the rich countries failing to deliver on their promise to use their surplus vaccines to immunize the under-vaccinated countries. Far from near, the G7 countries had drastically failed to deliver on their promises made on G7 summit in June. As of last week, USA has delivered only 25%, with further embarrassing arithmetic of EU only 19%, UK 11% and Canada just 5%.

Given the frightening predictions from WHO that another 5 million could be added to the already 5 million death tolls across the world, in the next year or more, it is high time starting a collective endeavor with herculean efforts to inoculate large swaths of unvaccinated people in un-protected areas. Keeping large portion out of vaccination will only make the pandemic endure with no time to end, as virus continues to persist through mutating in un-protected area into a more menacing variant. If so, then again someone else may say, after next the worst wave-We were forewarned- and yet here we are.             

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The Nuclear Weapons Ban Treaty (TPNW): Wishful daydream or historic milestone?

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The Treaty on the Prohibition of Nuclear Weapons (TPNW), adopted in 2017, has entered into force on the 22nd of January of this year and the number of ratifying states continues to grow, with Mongolia being the latest to announce its accession. This positive trend is certainly welcomed with enthusiasm by the Civil Society campaigners and growing number of supporters of this treaty that represents a huge step forward for the global movement to draw attention to the catastrophic humanitarian consequences of any use of nuclear weapons. It would certainly be dishonest to ignore the fact that this new international legal instrument remains controversial, to say the least, for most of the members of the so-called nuclear deterrence community. As preparations are ongoing for the first Meeting of States Parties, scheduled to take place in Vienna on 22-24 March 2022, it is useful to address some of the main doubts and arguments against the treaty.

In this regard, the main criticism is that it makes no sense to support a treaty on nuclear weapons if those states that possess them have not joined nor any intention to join it.  

In order to address this claim, it may be useful to recall that in the case of the Mine Ban and the Cluster Munition treaties, its main promoters and supporters were also states that did not possess those weapons, and that those international instruments also received some harsh criticism for this reason. Despite of this, there is no doubt now that both of those treaties have become remarkable success stories, not only by achieving the goal of approaching universalization, but also by consolidating a general moral condemnation of those categories of weapons. Therefore, the argument that a treaty necessarily needs to be joined by the possessors of the weapons can easily be rebutted. Despite of the current position of the nuclear weapons states, each new ratification of the treaty is not meaningless: on the contrary, it provides the treaty more authority and contributes to the growing pressure on nuclear weapons states to adopt further steps towards nuclear disarmament.

The other major contribution of the TPNW is that it facilitates the process of delegitimisation of nuclear weapons, necessary to finally amend the well-established foundations of nuclear deterrence doctrines. The humanitarian principles that are underlying the treaty are totally incompatible with those doctrines, and therefore are having an impact on them by highlighting the inherent immorality and illegitimacy of nuclear weapons.   

Another argument for the case of ratification is that it provides states the opportunity to support the process of democratization of the global debate on nuclear weapons, as this new treaty has been the result of a very open discussion with active engagement of delegations from all geographic regions and, in particular, of representatives of Civil Society. This is not a minor aspect of this process, but a key element. Indeed, unlike in negotiations of previous international legal instruments, in this era of growing complexity and interlinkages, the main challenges faced by humankind are being addressed by a diverse group of citizens, from all walks of life and regions. Traditional diplomacy is certainly not enough, and in the case of the TPNW, the positive results would clearly not have been possible without the decisive boost provided by the International Campaign to Abolish Nuclear Weapons (ICAN), which was able to mobilize Civil Society and likeminded governments towards the goal of negotiating a nuclear weapons ban treaty. 

While it would be naïve to expect the establishment of the nuclear weapons states to be convinced by the humanitarian narrative and in a foreseeable future to amend its defence and security policies base on nuclear deterrence, the TPNW and its focus on the security of the human being instead of the traditional notion of the security of the state, are already having an impact on the academic and public debates in those states.

The second argument used by its critics is that the TPNW weakens the Non-Proliferation Treaty (NPT).  Actually, this is not only incorrect, the opposite is true. In fact, the TPNW can serve as an initiative to help implement article VI of the NPT, by which parties are committed to undertake to “pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament”. This is of vital importance as the treaty clearly attaches a key role to all parties, and not only to those states that possess nuclear weapons. This commitment has also been reflected in the Final Document of the 2010 NPT Review Conference, and the TPNW can be understood as a reflection of that obligation to contribute to nuclear disarmament by non-nuclear weapons states.

Another common point is that the nuclear weapons industry is too strong and well consolidated and that it would be naïve to pretend that this treaty could actually have an impact on investment decisions.

This pessimism has also been proven wrong. In fact, in 2021, more than one hundred financial institutions are reported to have decided to stop investing in companies related to nuclear weapons production. As a result, the nuclear weapons industry is experiencing a considerable reduction and the trend towards the exclusion of this sector from investment targets is growing steadily. This is not only the consequence from the legal obligations that emanate from the TPNW but a reflection of the devaluation of the public image associated to these industries. As this public image continues to deteriorate, it is likely that this trend will continue and that the moral condemnation of these weapons of mass destruction will be absorbed into the mainstream of society.

Another common misinterpretation is that the TPNW should be understood as an instrument that is only designed to be joined exclusively by non-nuclear weapons states.

In fact, even though the treaty was developed by non-nuclear weapons states, it has been drafted and negotiated with the goal of universal adherence, including, someday, those states that still include nuclear deterrence in their national security doctrines. In particular, the TPNW establishes a clear set of steps for nuclear weapons states in order to eliminate their arsenals of nuclear weapons. Specifically, within 60 days after the entry into force of the treaty for a state party that possesses nuclear weapons, that state must submit a plan for the complete elimination of its nuclear weapons to a competent international authority that has been specially designated by states parties. The treaty also includes a process to designate a competent international authority to verify the elimination of nuclear weapons by a state before acceding to the treaty, and a process for states parties that maintain nuclear weapons in their territories for the removal of these weapons and report this action to the United Nations Secretary General.

It is also noteworthy that this treaty obliges states parties to provide adequate assistance to victims affected by the use or by testing of nuclear weapons, and to take the necessary measures for environmental rehabilitation in areas contaminated under its control. This dimension of the treaty constitutes an important contribution both to the protection of human rights of victims and to the now inescapable obligation to protect the environment, which are aspects that are not covered by the Comprehensive Nuclear Test Ban Treaty (CTBT). This certainly does not affect the value and vital role of this key instrument of the nuclear disarmament and non-proliferation regime but complements it by addressing the fundamental issue of environmental reparation.

The main challenge now is now not only to achieve a wider universality of the TPNW, but to engage more stakeholders and create awareness on the urgency of bringing pressure on the nuclear weapons states to finally move toward nuclear disarmament. In this regard, Civil Society initiatives have been promoting engagement of members of grassroots, parliament, the media and city governments, particularly in nuclear weapons states, which has had impressive results, with hundreds of local governments expressing support for the treaty and generating discussion among the population. These initiatives serve the purpose of putting pressure on politicians and especially, to facilitate a discussion within democratic societies about the sustainability and risks involved in the possession and harboring of nuclear weapons.

Indeed, the TPNW has a long way to go and overcome many obstacles to achieve its objective, but in its first year of entry into force, it has already had an undeniable impact on the nuclear disarmament and non-proliferation debate, despite the expected skeptics and efforts to ignore its existence stemming from the still powerful nuclear deterrence establishment. Most of its technical experts, academics and government officials honestly believe that nuclear weapons have helped to guarantee peace and stability to the world and therefore should continue as the foundation of international security doctrines. These well-established ideas have been based on the questionable assumption that the deployment of these weapons have avoided war and can guarantee permanent peace for all nations. This has served as a sort of dogmatic idea for many decades, but recent research results have shown that the risks involved are significantly higher and that the humanitarian consequences would be catastrophic for every citizen of the planet. The humanitarian impact paradigm, which underlies the process that has inspired the TPNW, has provoked a tectonic shift in the nuclear disarmament and non-proliferation debate, which had been limited to the NPT review conferences with its often-frustrating results. Certainly, the persistence of the different approaches needs to be addressed in a more constructive discussion among the supporters of this treaty and the deterrence community.

Finally, the fact that the first meeting of states parties of the TPNW will take place in Vienna is very meaningful as Austria has been one of the leading nations in this process, particularly in drafting the Humanitarian Pledge to fill the legal gap for the prohibition of nuclear weapons, which has been a decisive step towards the treaty that has already fulfilled that commitment. Despite of all the difficulties and the persistence of significant resistance, the active and committed participation of diplomats and Civil Society representatives, under the leadership of Austria, allow to envisage that this first meeting will help to strengthen the treaty and move forward in the long and burdensome road to the final objective of achieving a world free of nuclear weapons.

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International Law

Regional Mechanisms of Human Rights: The Way Forward: Case of South Asia

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Long debates have evolved since the 1948 UDHR as to whether human rights should always be perceived as universal, or whether they need to be regarded as contextual on regional and local cultures. If we look at  Art. 2 of the UDHR the rights apply “with no distinction given to their race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”. Still in spite of this, the universality has been criticized by some, who argue that by claiming human rights are universal, we ignore and undermine the cultural differences that exist between societies in different parts of the world

Historically, the first written evidence of human rights was found in the famous universal declaration in 1215 A.D., popularly known as the ‘Magna Carta’. Along with the same, there were many thinkers like Hobbes, Locke Rousseau, Milton, and Voltaire who argued in favour of  individual rights and with passage of time and the conclusion of two world wars, the United Nations Organisation came into being on 24th October 1945 that replaced the League of Nations.

Further, the Universal Declaration of Human Rights that was established in 1948 and is considered a milestone in the field of human rights whose primary aim is to protect and promote human rights. In contrast to the said aim, the critics of the UDHR label it as a Western-biased document that fails to account for the cultural norms and values which exist in the rest of the world. It is only with regard to a group of certain core rights like that are listed in the human rights treaties as ‘non-derogable rights’ or considered jus cogens such as the prohibition of the use of force, the law of genocide, the principle of racial non- discrimination, crimes against humanity, and the rules prohibiting trade in slaves and piracy that consensus among nations exist.

The core of the issue is that a group of nations are seeking to redefine the content of the term “human rights” according to their own social and cultural experiences as they argue that the principles enshrined in the Universal Declaration reflect Western values and not their own. These countries sign many international human rights treaties and conventions, but the use of reservations and internal obstacles

jeopardize their implementation. Such claims of social and cultural differences in the past have been dismissed by the western countries and the USA who dismissed such claims as being a screen behind which authoritarian governments can perpetuate abuses.

Coming to South Asian Nations, there does exist violations of human rights in India as there is an absence of any regional framework that can hold the government responsible for the acts committed or provide a forum to individuals to appeal against the decisions of the Courts like the one existing under European Court of Human Rights. To illustrate, the aspect of women’s rights needs consideration and improvement in the daily lives of women to meet the gap between formal rights and actual implementation of the same.  What this means is that there exists a necessity to focus on translating the universal values enshrined under International human rights to local contexts that is the only option available to human beings irrespective of the geographical location to the ideals of equality and freedom from discrimination

In this context, there arises a need for establishing regional and sub- regional human rights codes or conventions. This has also been recognized by the United Nations since in absence of a universal approach that the South Asian states refuse to adopt, it is through regional initiatives that the motives of human rights could be achieved. The need for a regional initiative becomes even more significant because unlike Europe, America, and Africa there is no inter-governmental regional system for human rights protection in South Asia. In practice, the reason cited is that the human rights debate revolves around the South Asian views or perspectives. Although the South Asian governments have ratified international human rights instruments, they fail to reflect in the national constitutions or laws of most governments.

The fact that human rights will enjoy certain specificity in South Asia, still to be elaborated and applied, however, does not mean less for the universality of human rights. The reason being that the international human rights do not originate from merely one homogenous European value system or culture, but from various heterogeneous sources, some of these existing in the long history of South Asia. Thus, human rights are universal not only in their applicability to all human beings in every corner of the world, but are also universal because they originated from every corner in the world.

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