[yt_dropcap type=”square” font=”” size=”14″ color=”#000″ background=”#fff” ] T [/yt_dropcap]he possibility of President Trump’s decision to lift some sanctions that were imposed on Russia has created some concern in both media and expert community and has even sparked the arguments that such course of action may even affect the international law enforcement in most negative way. While there is some truth to that, the situation is much more complicated when it comes to the real enforcement of international law on the global scale.
Indeed, when you are imposing sanctions on the state for violations of international law they should serve as an instrument of making that state comply with the rules and norms of international law. That much is true. However, it is rarely explained in the media, why U.S. have decided to impose sanctions on Russia unilaterally, albeit that it was then followed by some of its allies in Europe. The fact of the matter is that a lot of norms of the contemporary international law can be found in the Charter of the United Nations (UN), one of the grounding documents of the world order we live in right now.
All members of the UN are bound by the norms that are embedded into the Charter and agree to follow these norms on international level. The Charter have established a body of the UN called Security Council, that is charged with the maintenance of international peace and security. This body consists of permanent and non-permanent members. The later are changing based on specific procedure, while the former remain members of the Security Council basically since the end of World War II. Conflict situations between states (such as for example between Russia and Ukraine) are falling under the jurisdiction of Security Council that has powers to impose sanctions based on the decisions of its members. This is a legitimate procedure on how international community makes decisions that the breach of one of the states of international law and its obligations under UN Charter should be treated with sanctions of economic, military or other character based on globally accepted norms of international law.
The question then arises, why haven’t the U.S. chose that same path to legitimize the sanctions against Russia through the UN with the support of international community? The simple fact is that decisions of the Security Council can be vetoed by any of its permanent members and one of such members is Russia. Which brings us to the point that U.S. was unable to try and uphold the international law through customary procedure legitimate to the international community.
U.S. then proceeds with the unilateral sanctions against Russia and nothing in international law forbids U.S. to do so. However, when U.S. acts unilaterally it means that it is a political decision of the government of the U.S., not of the international community. Moreover, the enforcement of any law (including international law) is effective and has desired effect only if it is applied to all the subjects of the law equally, without discrimination. Simply, law should be equal to everybody. Hence, the importance of the collective decision on the matter that is represented by the procedures in the UN.
The sad fact is that the U.S. is not applying the same rules and actions to all the states in the world equally when it comes to the international law. The stark example is the occupation of Nagorno-Karabakh and seven adjacent regions of Azerbaijan by Armenia. This occupation have been reflected in the multiple international legal documents and even in the decision of international judicial body that works specifically with international law. Nonetheless, the U.S. have not recognized Armenia as an aggressor state and have not imposed any sanctions on the aggressor despite the fact that this situation is protracted since the early 1990’s. On the other hand, U.S. has imposed sanctions against Russia with practically no international legal documents or decisions of international organizations to support them, while ignoring the same situation in Russia’s neighborhood.
If U.S. can impose sanctions on the nuclear power and permanent member of UN Security Council it is obvious it can do so in regards to Armenia. Then, that brings us to the conclusion that the point of sanctions of the U.S. was not to uphold the international law and its principles, but to take steps on international arena that would show discontent with its adversary. Thus, international law would not suffer from the partial or even total lift on the sanctions imposed on Russia, because it was not originally the point of the sanctions in the first place.
Quite frankly the sanctions have proven to be ineffective towards Russia anyway, as they have not changed the position or Russia towards situation in Ukraine and have yet to show any other effect desired by U.S.
Validity of Reservations of Bangladesh against Article 2 of CEDAW
One of the greatest victories for the post-modern feminist movement in the arena of International Law was the Convention on Elimination of All Forms of Discrimination Against Women (CEDAW, hereinafter, the Convention). Often termed as the harbinger of an alternative understanding of the feminist cause going beyond the Human Rights regime, the Convention heralded the greatest possible change in the Status of women, recognized internationally. Often regarded as the International Bill of Rights for Women, CEDAW is a comprehensive treaty on the rights of women and establishes legally binding obligations on the State Parties to follow the legal standards set by it to end discrimination against women by achieving equality between men and women. (Tackling Violence against Women, London School of Economic Blog)
Despite the theoretical attempts at establishing an equal society, for most part of the World, the coverage of the Convention is minimal. This is mostly because of the ‘reservations’ made by member States in the name of personal laws often originating in their religious set up. The personal laws in their very inception are rooted in the ideas of patriarchy, dominance of men, and lesser roles for women. Many instances from the sources of these personal laws would prove that men are in charge of women and hence can direct their personal spheres. These discriminatory personal laws are protected even in the most advanced constitutional setups either through a document or a bill of rights within the purview of Right to Religion. As a consequence, many countries in order to show their neutrality towards the concept of Religion and to establish the beautiful ideals of secularism tend to overlook the discrimination these religious laws preach.
In the current Article, the researcher provides an analysis as to what kind of reservations are permitted under the CEDAW, and how Bangladesh completely misunderstood its qualified right of Reservations, as an absolute right and established an anomaly, which doesn’t merely contradict its international commitments but also the fundamental principles of the Constitution of Bangladesh.
Concept of Reservations to Treaties
The existing ambiguities in the treaty reservations law have often led to irregularities and illegalities in law. In 1969 the Vienna Convention on the Law of Treaties was adopted to codify practice and provide legal guidance on the meaning of reservations and a uniform procedure for entering them. The Vienna Convention provides that reservations may not be made that are “incompatible with the object and purpose of the treaty.” (Vienna Convention on the Law of Treaties (23 May 1969), Entered into force 27 January 1980. United Nations, Treaty Series, vol. 1155, p. 331.) This provision raises as many questions as it answers, as the Vienna Convention does not define “object and purpose,” nor does it indicate what body has the power to determine validity. The Vienna Convention also provides for state parties to object to a reservation within twelve months of its entry. However, objections do not dispose of the question of validity, although some states have objected to reservations to CEDAW on the ground of invalidity. In 1994,M. Alain Pellet, the Special Rapporteur on Reservation to treaties, addressed various aspects of the reservation issues. The most significant for purposes of dealing with CEDAW and other human rights treaties is his discussion of reservations to “normative” treaties. The international human rights treaties differ from most other treaties in that their implementation is monitored by bodies that are established by the terms of the respective treaties. (Human Rights Committee, General Comment No. 24 on Reservations, CCPR/C/21/Rev.1/dd.6 (November, 1994), republished as HRI/GEN/1/Rev.6.) Despite establishments of treaty bodies, within the framework of treaties, who hold authority to judge any reservations on its merits, all these bodies have had issues with reservations.
The Convention permits ratification subject to reservations. Some state parties that enter reservations to the Convention do not enter reservations to analogous provisions in other human rights treaties. A number of states enter reservations to particular articles on the ground that national law, tradition, religion or culture are not congruent with Convention principles, and purport to justify the reservation on that basis. (Reservations to CEDAW, Available at: http://www.un.org/womenwatch/daw/cedaw/reservations.htm, accessed on 6/10/2019).Article 28 (2) of the Convention adopts the impermissibility principle contained in art. 19 (c) of the Vienna Convention on the Law of Treaties. The impermissibility principle states that any reservation which is incompatible with the object and purpose of the treaty shall be invalid. The CEDAW Committee considers art. 2 as the core provision of the Convention. The Committee holds the view that art. 2 central to the objects and purpose of the Convention and as a consequence its importance cannot be neglected. States parties which ratify the Convention do so because there exists an agreement between all the states that any form of discrimination against women in all its forms should be condemned and that strategies set out in art. 2, should be implemented by States parties to eliminate it. How far the traditional, religious or cultural practice, incompatible domestic laws or other policies can justify violations of the Convention, needs some thorough scrutiny.
Fundamental Rights under the Constitution of Bangladesh
Article 7 of the Constitution of Bangladesh, 1972 refers to Supremacy of Constitution and all powers to be exercised in consonance with the same, as it manifests the will of the people of the Republic. The Constitution also guarantees various fundamental rights to its citizens and explicitly states than any law inconsistent with the Fundamental Rights shall be void. The Constitution also promotes equality (art. 27, Constitution of Bangladesh) and prohibits any form of discrimination against women in all spheres of state and in the public life (art. 28(2) Constitution of Bangladesh). Despite these provisions proclaiming equality and non-discrimination against women in the law of the land, Bangladesh holds reservations against art. 2 of the Convention, which, as already discussed above is crucial for the objects and purposes of the Convention. The ground, as repeatedly claimed by Bangladesh, for such reservation is that these provisions contradict the Sharia Law based on Holy Quran and Sunnah. As a response to this, neither the Committee nor any State party has belaboured the issue. Bangladesh withdrew the reservations to Articles 13(a) and 16 (1) (f) of the Convention in 1997 but has not withdrawn the Article 2 and Article 16 (1) (c). The Committee has continued to press on the question of withdrawing the remaining reservations, however mostly unsuccessfully.
Periodic Committee Reports at a glance
Soon after the ratification of the treaty, in 1996 the Ministry of Women and Children’s Affair constituted an inter-ministerial committee to review the reservations to the Convention. The report of the Committee reaffirmed the supremacy of the law, and stated that Bangladesh doesn’t have Sharia Law as such rather certain provisions have been codified into legislation. Also, the report suggested that the provisions of Sharia are not immutable and hence can be reinterpreted as per need of time. (Committee on the Elimination of Discrimination against Women, Third and Fourth Report of State Parties: Bangladesh, CEDAW/C/BGD/3-4 p 26 (April 1, 1997)).
Again in 2004, during the 31st session of the CEDAW, in its fifth report the Bangladeshi representative asserted their intention to withdraw all the reservations. The Committee was gratified to hear that Bangladesh intended to withdraw its reservations to the Convention in the near future. In doing so, it would ensure the effective implementation of the Convention and send a significant message to other Muslim nations. (Committee on the Elimination of Discrimination against Women, Fifth Report (Continued), Summary Record of 654 Meeting, CEDAW/C/BGD/5, para 61, (July 9, 2004))
Regarding the optional protocol, Dubravka Šimonović, Special Rapporteur on Violence against Women, observed, although Bangladesh had ratified the Optional Protocol to the Convention, its reservations to articles 2 and 16.1 (c) effectively meant that the Optional Protocol was not applicable regarding certain rights provided for in the Convention. She remarked that the Bangladeshi delegation had stated that the Government was gradually taking steps to implement the equal rights guaranteed to men and women under the Constitution, and she would appreciate knowing why that was the case, since those rights should be granted, not on a gradual basis, but immediately. (Convention on Elimination of All forms of Discrimination Against Women, 5th Periodic Report: Bangladesh, Summary Records CEDAW/5/SR.653 (12th August 2004)) The fifth periodic report also focused on the ongoing role of NGOs and other Civil Societies stating their lobbying efforts and advocacy attempts to remove reservations from the Article 2 and 16.1 (c).
Most recently, the 8th Periodic Report submitted in 2016, recalled the importance of Law Commission (hereinafter, LC) reports, which is a statutory body empowered to recommend enactment, amendment or repealing of laws relating to fundamental rights and values of society. Since 2009, the LC has suggested reform of laws for the promotion of human rights, including prevention of sexual harassment in educational institutions and workplaces, prevention of violence against women, protection of victims and witnesses to grave offences, reform of Hindu family laws and the withdrawal of reservation on the two Articles (2 and 16.1(c) of CEDAW. (Convention on Elimination of All Forms of Discrimination Against Women, 8th Periodic Report: Bangladesh, May 2015) In the report, the Bangladeshi representative submitted that the Government is aware about the potential movements by the Islamic fundamentalist groups against the withdrawal of the reservations. Therefore, cautious steps are being taken so as not to jeopardize application of the principles of CEDAW. Partnership and cooperation with civil society is essential to create a positive environment for the withdrawal of reservation.
The abovementioned constitutional provisions and periodic reports show that despite being an equal society, at least constitutionally, the abovementioned reservations appear highly mis-founded as they can essentially have only two understandings- first, Sharia is inherently discriminatory against women; Second, Bangladesh has wrongly appreciated and understood Sharia, which has misguided such reservations. While the first one could not be agreed for most of its part, as 29 out of 57 members of Organization of Islamic Cooperation (OIC), with Sharia law in force, have ratified the treaty without any reservations. When it comes to Second observation, then it can be affirmatively said that the Bangladeshi reservation is rooted in the wrong conception of its own religious conceptions and practices. Various reports suggest that the Sharia is not immutable and such changes can be made as per the needs of time. This can be regarded as one of the most important times where call for such amendments in the Bangladeshi understanding and interpretation of Sharia Law as the crime against women in the South Asian region is on all-time high. (See Media Report)
In light of the above-mentioned facts it becomes imperative to understand the prospects of such reservations both in law and in practice along with the methods of tackling the existing obstacles in the implementation of women centric legislations. While Bangladesh has accepted the irregularity of its reservations to the CEDAW in every periodic report submitted to the CEDAW, yet any action for the withdrawal of the same is still an implausible idea because of the pressure on the Government exerted by fundamentalist groups active in Bangladesh. As the reservation contradicts various provisions of the Constitution of Bangladesh like Articles 26, 27, 28, 29, etc, they are inherently invalid. But despite the vehement oppositions from various NGOs and civil societies to the reservations, no such remark has yet been made by the judiciary of Bangladesh. Along with reiteration of supremacy of constitution over sharia law, it is necessary for the courts to remove the divide between public and private spaces. While private spaces are completely untouched by the State, it is imperative that the manifestations of such personal practices which become social factors should be regulated. Alternatively, reading the reservation invalid within the purview of Sharia Law can be another plausible task that the Government can undertake. Taking into consideration the examples of other Islamic nations, which have no reservations against the CEDAW, can also be beneficial to the withdrawing of reservation procedure. These exemplified and exalted examples of law in other Islamic nations which don’t have reservations can help Bangladesh cope up with the resistance to the withdrawal by the fundamentalist forces.
Regarding reservations of Bangladesh, it can be concluded that they are highly misplaced because of inherent problem in their conception. States are required to be proactive in adopting laws and policies to eliminate discrimination against women and in attempting to modify or abolish discriminatory “customs and practices.” As the article lays out the fundamental requirement to comply with all articles of the Convention in the State party’s constitution, statutes, and policies, it is imperative for Bangladesh to withdraw the same.
Schweitzer’s ‘Reverence for Life’ In the Age of Trump and Modi
Forever known by his phrase ‘reverence for life’, Albert Schweitzer was a theologian, moral philosopher, physician and missionary. He was born in Alsace when it was German, and became a French citizen when it reverted back to France after the First World War.
To him this reverence implied regard for and a duty to all human beings, not “confined to blood relations or tribe” (The Teaching of Reverence for Life, Holt, Rinehart and Winston, 1965, p. 9). It is an inspiring thought for it leads naturally to peace and the end of wars. He did not claim originality for the idea, noting that Lao-Tse and Confucius among others had already preceded him in espousing it (pp. 9-10). He merely promoted it.
In this he was also of like mind with the 18th century Scottish philosopher, David Hume, who reminded us of conscience and the ability to distinguish between good and evil. We are strings, he said, “that vibrate in sympathy with others”, endowed with a natural good that propels us to help our neighbors or the distressed (p. 20). I am reminded of my father who always said, “You don’t treat a disease; you treat a patient.”
And then one wonders if these instincts have been consciously suppressed in some human beings. One can think of two current leaders in particular: Donald Trump and Narendra Modi. Trump’s assertion, “he died like a dog” grates even if one violently disagrees with al-Baghdadi’s methods, wrenched as he was from the normal course of his life by a US invasion predicated on false charges.
Then there is Modi and his drumbeat of upper caste Hindu supremacy. As US Representative Ro Khanna noted forcefully in a tweet, “It is the duty of every American politician of Hindu faith to stand for pluralism, reject Hindutva, and speak for equal rights for Hindus, Muslims, Sikhs, Buddhists and Christians.”
It was only a few days ago in India that a 27-year old Dalit man was beaten mercilessly and tossed in the river to die. He had been fishing. His crime: a refusal to give his catch to a nearby Brahmin who wanted an equal share. If it needs reminding, a Brahmin belongs to the highest caste, a Dalit or Untouchable to the lowest — someone who is frequently not allowed to use the village well. The Dalit man killed was the sole support of his family.
For the people of Kashmir there is little respite. A beautiful valley that could attract tourist dollars, instead is invaded by Indian troops. When the Kashmiris protest their humiliation through demonstrations, even children are blinded by pellet guns. Photos show decaying towns where empty streets are patrolled by sullen soldiers.
Then there are Palestinians, frequent casualties of the Israeli military, living the daily humiliations and frustrations of life between checkpoints — a life in prison in the case of Gaza where the soccer team is denied travel permits to play in a local tournament against a West Bank team. I
Gaza’s native son Dr. Ramzy Baroud shines a frequent light on the dark horror of three-quarters of a century of occupation. Frequent articles and four books including the latest “These Chains Will be Broken” published this year– keep the world informed.
Dr. Izzeldin Abuelaish is a peace activist. His moving memoir I Shall not Hate followed a tragedy. During the 2008 – 2009 Gaza invasion, a tank stationed itself outside his home (well known to the Israelis) and fired a shell killing three of his daughters aged 13, 15 and 21, and seriously injuring another who was 17. In that war one of his nieces also died and another niece was grievously injured.
Who was it who said, “Power corrupts and absolute power corrupts absolutely.” The good doctor’s book is subtitled, “A Gaza Doctor’s Journey on the Road to Peace and Dignity.” It is a common quest across the world.
In Chile, protesters show no let-up and the country is unable to host the COP 25 climate change meeting. Spain has offered to step in, despite its own Catalan independence movement problems.
The Chile protests have so far resulted in 20 deaths and thousands injured. Starting with a student protest on October 18 over a rise in Metro fares, they have ballooned to a million at one demonstration, the largest in the country’s history. Vandalism, looting, bus burning are often a consequence and clashes with security forces follow. President Sebastian Pinera has been obliged to reverse the fare increase, and is also promising higher taxes on the wealthy as well as an increase in the minimum wage.
Examples of human strife do not end here. Yet in the present era there is a common goal for humanity when it faces the existential threat of climate change. Surely then we can form a common bond, extend Schweitzer’s reverence to include all life, and strive to save our one and only home. As Schweitzer observes (p. 31), “Reverence for life, arising when intelligence operates upon the will to live, contains within itself affirmation of the universe and of life.”
Author’s note: This article appeared first on Counterpunch.org
Salvaging international law: The best of bad options
These are uncertain times with trade wars, regional conflicts and increased abuse of human and minority rights pockmarking the transition from a unipolar to a multipolar world. What may be potentially the most dangerous casualty of the transition is the abandonment of even a pretence to the adherence to international law.
Violations of international law and abuse of human and minority rights dominate news cycles in a world in which leaders, that think in exclusive civilizational rather than inclusive national terms, rule supreme.
Examples are too many to comprehensively recount.
They include semi-permanent paralysis of the United Nations Security Council as a result of big power rivalry; last month’s Turkish military incursion into northern Syria in a bid to change the region’s demography; ethnic cleansing of the Rohingya in Myanmar; disenfranchisement of millions, predominantly Muslims, in India; and a Chinese effort to fundamentally alter the belief system of Turkic Muslims in the troubled north-western province of Xinjiang.
It’s not that international law was adhered to prior to the rise of presidents like Donald J. Trump, Vladimir Putin, Xi Jinping, Victor Orban of Hungary, and Recep Tayyip Erdogan of Turkey or Indian Prime Minister Narendra Modi.
It wasn’t. Witness, as just one instance, widespread condemnation of the 2003 US invasion of Iraq as a violation of international law.
The silver lining at the time was the fact that international law was at least a reference point for norms and standards by which leaders and governments were judged. It still is, at least theoretically, but it no longer is the standard to which leaders and governments necessarily pay lip service. Today, they do so only when opportunistically convenient.
Instead, violations of territorial sovereignty, as well as human and minority rights, has become the norm.
It also is the de facto justification for the creation of a new world order, in which a critical mass of world leaders often defines the borders and national security of their countries in civilizational and/or ethnic, cultural or religious terms.
The abandonment of principles enshrined in international law, with no immediate alternative standard setter in place, raises the spectre of an era in which instability, conflict, mass migration, radicalization, outbursts of popular frustration and anger, and political violence becomes the new normal.
Last month’s killing of Kamlesh Tiwari, a Hindu nationalist politician in Uttar Pradesh, because of a defamatory comment about the Prophet Mohammed that he allegedly made four years ago, reflects the deterioration of Muslim-Hindu relations in Mr. Modi’s increasingly Hindu nationalist India.
Perhaps more alarming is the recent declaration by Oren Hazan, a Knesset member for Prime Minister Binyamin Netanyahu’s Likud party, that China’s incarceration of at least a million Muslims in re-education camps, or what Beijing calls vocational education facilities, was a model for Israel in its dispute with the Palestinians.
Equally worrisome is last month’s revocation by Mr. Putin of an additional protocol to the Geneva Conventions related to the protection of victims of international armed conflicts. Mr. Putin justified the revocation on the grounds that an international commission, set up in order to investigate war crimes against civilians, risks abuse of the commission’s power “by the states, which are acting in bad faith.”
Russia alongside Iran and the government of President Bashar al-Assad have been accused of multiple war crimes in war-ravaged Syria. So have anti-Assad rebels, irrespective of their political or religious stripe.
Russia’s withdrawal from the Geneva protocol, Mr. Hazan’s endorsement of Chinese policy and Turkey’s intervention in Syria in an environment that legitimizes abandonment of any pretext of adherence to international law as well as ultra-nationalist and supremacist worldviews are indicators of what a world would look like in which laws, rules and regulations governing war and peace and human and minority rights are no longer the standards against which countries and governments are measured.
The fact that Mr. Al-Assad, a ruthless autocrat accused of uncountable war crimes, is increasingly being perceived as Syria’s best hope after more than eight years of brutal civil war aggravated by foreign intervention, drives the point home.
“As depressing as it is to write this sentence, the best course of action today is for President Bashar al-Assad’s regime to regain control over northern Syria. Assad is a war criminal whose forces killed more than half a million of his compatriots and produced several million refugees. In a perfect world, he would be on trial at The Hague instead of ruling in Damascus. But we do not live in a perfect world, and the question we face today is how to make the best of a horrible situation,” said prominent US political scientist Stephen M. Walt.
The problem is that stabilizing Syria by restoring legitimacy to an alleged war criminal may provide temporary relief, but also sets a precedent for a world order, in which transparency and accountability fall by the wayside. It almost by definition opens the door to solutions that plant the seeds for renewed conflict and bloodshed.
International law was and is no panacea. To paraphrase Mr. Walt’s argument, it is the best of bad options.
Abandoning the standards and norms embedded in international law will only perpetuate flawed policies by various states that were destined to aggravate and escalate deep-seated grievances, discord and conflict rather than fairly and responsibly address social, cultural and political issues that would contribute to enhanced societal cohesion.
Identifying the problem is obviously easy. Solving it is not, given that the players who would need to redress the issue are the violators themselves.
Ensuring that nations and leaders respect international law in much the same way that citizens are expected to honour their country’s laws would have to entail strengthening international law itself as well as its adjudication. That would have to involve a reconceptualization of the United Nations Security Council as well as the International Court of Justice.
That may not be as delusionary as it sounds. But leaders would have to be willing to recognize that criticisms of the application of international law, like Mr. Putin’s objections to the way the Geneva protocol is implemented, have a degree of merit.
In other words, like national laws, international law will only be effective if it is universally applied. Western legal principles insist that no one is exempt from the law. The same should apply to states, governments and leaders.
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