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To what extent does international aid provide a sticking plaster, rather than a solution, to post-war recovery?

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The theory of Good Governance (GG) relies on the belief an effective government builds upon the criteria of transparency and accountability. Moreover, government brings together the formal institutions of the state and their monopoly of legitimate coercive power (Stoker, 1998). The post-colonialism era left many states in a situation of civil war, bankruptcy and corruption, where an alliance of elites controlled the country’s main resources and wealth, which led to persistent inequalities and divisions within a country (Henderson, Stalker, 2000).

Thus, the fragmented state’s incapability to provide security, justice and basic needs, legitimized, in the citizen view, the use of force as not recognizing government’s authority.  The on-going tensions in the Middle-East illustrates how the longer a civil war lasts the more likely an escalation of violence will occur and lead to a spillover effect from a state to region. This in turn might have a significant impact on international peace. Following, post-war recovery donors believed the maintenance of political stability and peace-building process required assistance of the international system in order to limit the threat of a return to violence. This last point is essential, as it highlights the subjective use of foreign aid and need for mutual responsibility of the donor and recipient to apply the basic principles of humanitarian aid: humanity, neutrality, impartiality and independence.

This essay will argue contemporary humanitarian aid effectiveness is undermined by the politicization of the process, which is the pursuit of political objectives by humanitarian instruments. As a consequence, this results in the donor’s national interests and security being privileged over recipient’s need. Aid policy would then be determined by selectivity of which state receives aid and on the contrary, the circumvention of some governments.  This concept does not only impacts humanitarian principles, challenges the ethics of donor countries but also has long-term devastating consequences on development strategies. Boone (1996) argues, that instead of supporting development aid can provoke and enhance poverty as directly given to governments ‘that consume aid inflows instead of investing in their country’ (pp-289).  In order to analyze the impact politicized foreign aid had on developing countries Afghanistan and Somalia will be used as case studies. As, they both suffered from complex political fragmentation following a fall of a regime and required impartial assistance. This essay argues, efficient aid should be implemented by a return to classic humanitarianism through the establishment of democracy and good governance and so the likelihood of sustainable peace.

Outline and Literature

Afghanistan and Somalia has been chosen as case studies as they highlight the argument no matter the amount of humanitarian aid the recipient receives, if the institutions are weak and the aid subjective then it will not be incorporated homogeneously to the society.

To begin, intervention is not new and relies on peaceful stability. In order to understand the influence and consequences of politicization on foreign aid during post-war recovery three major concepts of humanitarian aid will be defined: ‘humanitarianism imperative’, impartiality as a component of legitimacy, and the use of conditionality as reward of Good Governance.  First of all, Joanna Macrae, described humanitarianism as ‘designed to mitigate the impact of war’, mainly led by the West (Macrae, pg 7).

Nonetheless, The Code of Conduct for the International Red Cross introduced the concept of ‘humanitarian imperative’, which defines the principle of humanity as the right to receive and to give humanitarian assistance (Schweizer, 2004). This point highlights, even though humanitarian aid is imperfect, it is a right and duty to bring assistance to people in need. Furthermore, in order to restore legitimacy of the state it is essential to establish or reform the national government, which often requires impartial cooperation on the ground with local actors. A solution for cooperation and legitimacy has been addressed through the application of conditionality which Nelson and Eglinton (1992) defined as a set of strategies that the donors apply in order to bring in political and economic reforms in the recipient country. It has further been used as a reward for Good Governance and a pressure mechanism for compliance to peace-process. For instance, bilateral donors and UN agencies applied them in post-war recovery of Somalia and Afghanistan.

However, it will be argued first of all, it is not the most appropriate approach to strengthen good governance. Secondly, it often excludes groups from the reconstruction process, which leads to social exclusion and has a negative impact on sustainable peace (Manning, 2010). While in both countries the humanitarian field staff has been criticized for both economic and political reasons. This paper will focus only on the political aspect of international aid as opposed to economical factors because the implementation of growth-promoting activities requires strong political infrastructure.

Additionally, It is worth highlighting, politicized humanitarianism theorists argued classic humanitarianism is faulty as ‘neutrality is only a myth’. Furthermore, O’Brien (2004) and Anderson (1999) point out, neutrality is impossible to obtain as when aid decides to intervene in a conflict it has a political view ’international assistance (…) becomes a part of that context and thus also of the conflict’’ (pp-1). She gave an example of the Sri Lankan government, which considered Tamil-speaking refugees are similar to the Tamil Tigers; in this situation then providing humanitarian aid would also be helping a rebel group. Nonetheless, it has been stated politicization is a violation of the Geneva Conventions on the Laws and Customs of War, and so should respect the principles of impartiality and transparency.

For the reasons discussed above, this paper will support the argument politicization hinders the success of foreign aid following post-war recovery by examining how the use of conditionality in Afghanistan and Somalia was ineffective in influencing the government and was applied even though harmful to the population. Secondly, following this analysis it will be discussed if the political aspect of foreign aid can be neglected by focusing on a bottom-up mobilization through NGO’s. However, this solution will be argued not efficient as to obtain sustainable peace and development the state’s political structure will need to be constructed around the concept of ‘impartiality’, ‘country ownership’ and ‘good governance’.

Links and Case Studies

Since the cold war Afghanistan has been an aid-dependent country as in order to fight the Red Army, and so the communist invasion, the United States had given over $600 million per annum to the country (Giradet, 1998, pg. 118). Moreover, while the communist part of the country equally needed assistance, the US-led aid only focused on one side, the Afghan mujahideen, by supporting them both financially and technically. Following this period of aid flow, another one happened during the civil war in Afghanistan, from 1992 through the end of the Taliban regime in 2001. It will further be argued; the emphasis of foreign aid was not on meeting the basic needs of Afghanistan’s population but on encouraging trade (Fayez, 2013). Similarly, to Afghanistan, Somalia post-cold war suffered from war and famine and the situation did not improve with foreign aid assistance. In fact, it is still considered as the most modern state collapse in the world. Moreover, the famine drew attention of the United Nations on to the Somali civil war in 1992, through the United Nations Operation in Somalia (UNOSOM) however they withdrew in 1994 due to conflict between Somalia and American forces.

Unfortunately, the lack of neutrality and impartiality in foreign assistance to Somalia was most markedly felt following 9/11 and so the beginning of the ‘war on terror’ led by the United States. In fact, the concerns focused on keeping international peace and securitization rather than humanitarian protection of Somali population.  As Bradbury stated (2010) ‘the emphasis on reviving a central government has simply served to perpetuate a violent conflict over control of the state.’ (pp-2)

The situation in Afghanistan and Somalia are similar and support Easterly (2002) statement of foreign aid, which argues ‘the tragedy of aid’, is mainly due to a lack of accountability and management. Furthermore, due to the difficulty to collaborate with weak state framework and infrastructures often lead NGOs to endorse the role of providing security from a bottom-up mobilization rather than acting through a government in order reaching the population directly (DeMars, 1996: 81).  Nonetheless, they can undermine the state’s responsibility to deal with the crisis as well as aggravate the issue by not providing equal assistance to different groups.

Arguments and counterarguments

When analyzing the effectiveness of international aid, one has to consider specific tools of the process such as conditionality. As stated above, conditionality is the use of ‘bargaining aid’ in orders to reform the recipient’s country policy, and is argued to be a major support for increased living standards and development (Montinola, 2007).  

However, the situation in Afghanistan challenges this perspective as conditionality has been used mainly for short-term recovery for security interests instead of sustainable peace. Furthermore, The Bonn Agreement, was a series of agreement attempting to re-establish the State of Afghanistan following the US invasion and has been argued to favor only one side of the conflict, which was the ally of US during ‘war on terror’ (Goodhand, 2009). For instance, the agreement established the foundation for future Afghan governance in order to help the U.S. eradicate al Qaeda and,’ in the long term, would be stable enough to deny terrorists a haven’ (Fields, 2011). The fact emergency security was the main interest of donors brought them to keep elites at their posts in exchange of promise of stability, which consequently excluded a minority.  The fragmentation of Afghan politics and institutions, limited the application of conditions.

Thus, the Bonn Agreement while attempting to reform the state, in the US interests, did not create de facto sovereignty and domestic legitimacy; which are essential to sustainable peace.

In comparison, Somalia post-war recovery attracted many interests especially in terms of trade and geopolitical location. For instance, the fact the main donors were the US and USSR reflected the on-going cold war rivalry and the desire for both countries to access the red sea. (Mehmet, 1971) However, the large amounts of aid flow did not accelerate growth and development, as there was no existence of efficient administration.  In contrary, when the trade interests are situated in another state the humanitarian aid will follow the trend. Moreover, Britain cut off aid to Somalia, which they argued was based on Human Rights violations. But, Britain selectivity towards aid was actually caused by difficulty to administrate aid and mainly political factors. Therefore, much of the attention at the time was on Nigeria, due to Britain strong trade interests with the country. As, the world economy today depends significantly on oil and Britain is no exception. Actually, the Nigerian oil production and the British foreign assistance to Nigeria begin since the colonial history, which explains their interest to keep the territory stabilized as weak Nigerian oil out-put could have negative impact on the donor as well as the recipient of aid (Vazul, 2010).

National interests from donors thus undermined promoting good governance and strong political infrastructures in post-recovery of developing countries such as Somalia and Afghanistan (Sorensen, 2013). To sum up, conditional aid seems incompatible with the self-interested nature of bilateral donors. As concerning the role of international organizations it also seems like the main interest of IMF, which is to promote global growth and economic stability and so is not in compliance with the actual needs of citizens in recipient country. This last point raises the question, if conditionality has been ineffective due to fostering violence, marginalizing a part of the population and delegitimizing the state then would the use of unconditional aid be more benefiting? Furthermore, we will see the use of unconditional aid through NGO’s can also be problematic and has its flaws with the example of cash-based transfers since 2000 in Somalia which illustrated the difficulty to monitor the process as most payments were involved in fraud and diversion problems. (Hedlund, 2012) Nonetheless, even though the complex discussion around the question of which policy is more suitable between ‘conditional’ or ‘unconditional’ aid is still ongoing, studies have shown the latter has more chances to progress towards the establishment of democracy and ‘country-ownership’ than states that received conditional aid (Kersting, 2014).

It has been argued one way of dealing with the dilemma of sending substantial aid flows to weak institutions is to by-pass the state-centric phenomena of humanitarianism. And so, to deliver aid through Non-government Actors as Acht (2015) would advocate. Their main point is that government-government assistance is more likely to be inefficient as the recipient state suffers from “bad” governance, which they define as ‘‘human rights violations, lacking representativeness of the government and high levels of military expenditures’’(Acht, 2015, pp-2). Thus, this would lead donors to find another way to deliver aid, by targeting directly the population. Furthermore, their empirical analysis is build on the theory bilateral channel are most of the times chosen by donors which goals are non-developmental and interested in securitization through stability process or build upon post-colonialism relationships, as mentioned above. Instead then using NGOs would be more useful to depoliticize aid, especially when emergency on the ground is required. They believe, local ownership of reforms to promote good governance has been lacking satisfactory evidence and so bypassing bilateral channels seems to provide a ‘rational’ choice to the issue (Acht, 2015).

In line with this thought, Djarklov (2012) holds that foreign aid could lead politicians and so elites of developing countries to ‘engage in rent-seeking activities in order to appropriate these resources and try to exclude other groups from the political process’ (pp-169). And so, bilateral foreign aid by creating dependency could undermine democracy. Nonetheless, the solution to solely use NGOs to bypass governments and to underestimate the efficiency of aid when used impartially could lead to undergoing human catastrophes with no long-term solutions. Furthermore, the role of NGO’s in Somalia and Afghanistan illustrates how the roots of the causation of inefficient foreign aid is not the bilateral channel but the non-development goals and the lack of interest from donors in establishing an accountable democracy.

First of all, NGO’s can be considered as enemies and so targeted by local actors due to delegitimization of aid from their perspective as they consider Western aid as political entities (Irby, 2012). Secondly, donors can see NGO’s as an extension of their military interests (Abiew, 2012). Finally, NGO’s do not provide long-term post-war recovery, as the question on the duration of this alternative is questionable.

Spang (2016) questions the view NGO’s provide a clear alternative to bilateral channel by argumenting ‘politicization of aid may cause (…) non-governmental organizations (NGOs) on the ground to become strategic targets in the conflict’ (pp-1). As foreigners and so NGO representatives could be seen as targets, intervening in an area where a specific entity has authority on the conflict zone. For instance, in Somalia Al-Shabaab attacked NGO internal personnel in order to manipulate and control the organizations as they considered them as ‘spies or agents of foreign intervention’ (Irby, 2012, pp-6) but was also manipulated for material gain. Especially Médecin Sans Frontières (MSF), when trying to negotiate access to territory has experienced this challenging obstacle to the process of providing assistance.

In comparison, NGO’s has been used as an extension of the donors military particularly in Afghanistan where humanitarian agencies had to work with states agencies, which undermined their neutrality.  The US Secretary of State, Colin Powell stated in a speech the close relationship the US has with NGO’s during the Enduring Freedom operation in Afghanistan (Abiew, 2012). This situation was later confirmed when the organizations applied the government program. The fact, western government lack of neutrality in bilateral foreign aid also undermines NGO’s at the same time, as local actors perceive them as an extension of modern imperialism.

To sum up, this essay does not argue NGO’s are not a useful tool to provide assistance during post-war recovery but that these alternatives are only short-term solutions, as they do not have the resources or the capacities to bring sustainable peace when corrupted and weak political infrastructures are still governing.

While there has been a consensus among academics that good governance is essential in order to promote development, it is a subjective theory and so means different things depending on individuals.  In this paper, good governance will be referred as the qualities of a state to govern around the principles of democracy, accountability, transparency and legitimacy. Moreover, The 1997 UNDP Report Governance for Sustainable Development sums up effectively the objectives a strong political infrastructure should have in order to be considered as legitimate: ‘it is, among other things, participatory, transparent and accountable, effective and equitable, and it promotes the rule of law.’ Moreover, by providing assistance without considering if the government prior intervention was well governed would improve the view of local actors on foreign aid and so would bring more likely collaboration.  Additionally, along this line aid is mainly undermined because donors do not take into account that even with substantial amount of aid if elites are still exercising power with no development goals then peace will not be sustainable.

 Thus, the aid policy should be applied and delivered with consideration of the reality of what is happening in the country and so the state’s policy. This last point raises the question, what kind of government should be established in order to develop a country post-war?

While some academics argues democracy is not they key to development, as the recipient country needs to find their own solutions.  However, democracy has actually been the most satisfactory solution in order to give the opportunity for equal participation to the political environment. We can consider, development and sustainable peace as the outcome while democracy and good governance are the process to obtain a convincing solution to post-war recovery.

It is essential to highlight the limits of good governance theory, as it is a difficult task to establish a causal relationship between the latter and development. For instance, while it is true democracy does not always lead to sustainable peace and development, the fact it incorporates human rights, transparency and accountability makes it an effective government where there is higher chances that aid will be distributed homogenously to the population (Opara, 2007).

As strong political infrastructures are needed in order to manage grievances and be able to handle conflicts before they will turn violent. For instance, analysis of the situation in Haiti have concluded the only alternative for post-war recovery is to bring the necessary assistance to establish a cohesion between the state and citizens and to work effectively towards a ‘participatory consensus’ (Kumar, 1998).

Conclusion

Considering the above, it can be concluded that in order to establish a long-term post-war recovery the process has to be political, in the sense of establishing good governance.

We have analyzed, foreign aid is mainly undermined by its politicization, due to the donor’s instrumentalization of aid for national and security interests. It is more likely, bilateral channels would be more effective if they provided assistance impartially based on humanitarian need rather than conditionality and so reward of good governance. The current foreign aid assistance in Somalia and Afghanistan civil wars requires the participation of NGO’s and unconditional aid but the roots of the conflict has to address before, as the prerequisite of sustainable peace is good governance and legitimacy of the state.

For further research, the causal relationship between democracy and development should be further analyzed with its applicability to different post-war situations. Furthermore, it would be interesting to consider the variability of democracies in order to establish not a one size-fit all model, but one which could correspond to the state’s cultural and traditional background. While, the Westernized perspective of political infrastructures cannot be applied to every post-war recoveries, engaging in a reform of the current government to promote transparency, accountability and participation could stabilize the conflicts.

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International Law

The United Nations: Expectations vs Reality

Javier Delgado Rivera

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“Alarm bells are still ringing. We face a world of trouble.” This was the distressing warning given by António Guterres, the United Nations (U.N.) Secretary-General, during his remarks to the U.N. General Assembly at the start of the year.

2018 was indeed a harsh year. The U.N. is always expected to play an appeasing role wherever peace and security are under threat. But the organization does not always have enough clout to silence the guns. As a result, last year the U.N. was unable to help bring stability in places like Afghanistan, Myanmar’s Rakhine State, Eastern Ukraine or between Israel and Palestine, to name just a few trouble spots. In the last two cases, disagreements in the Security Council help perpetuate current deadlocks.

On top of this, last year the U.N. refugee agency in the Occupied Palestine Territories (known as UNRWA) faced an unprecedented financial crisis after the U.S. cut its $300 million contribution. (The Agency was able to make up for the shortfall through additional donations from other countries and institutions). Yet the financial footing of the Agency remains so precarious that its chief has just requested US$ 1.2 billion to fund aid programs for 5.4 million Palestine refugees across the Middle East.

But 2018 was not all gloomy for the multilateral organization. Last year saw the adoption of the U.N.-led Global Compact for Migration. This non-binding pact, signed by 164 countries (out of 193 U.N. member states) in December, aims at strengthening regional and international collaboration in the management of migration flows. Claiming that it would obstruct efforts to control migration, the U.S., Israel, several E.U. countries and Australia did not join the accord. In early January, Brazil announced that it will abandon the accord.

The U.N. can also take some credit for forcing North Korea into the negotiating table. Last June’s summit in Singapore between the country’s leader Kim Jong-un and U.S. President Donald Trump came at the back of the harshest sanctions the U.N. Security Council has ever imposed on the Asian country. Moreover, an unusual visit in December 2017 by the then U.N. political chief to North Korea paved the way for the easing of tensions. Yet as Washington and Pyongyang gear up for a second summit in late February, a recent U.N. report claims that North Korea’s nuclear and ballistic missile programs “remain intact” and its leaders are dispersing missile assembly and testing facilities to prevent “decapitation” strikes.

On a housekeeping note, a recent important highlight has been the reform of the organization’s Resident Coordinator system. In January 1st U.N. country-offices gained more autonomy from headquarters, so that decision-making in development assistance, among other crucial work, can be done closer to the people that need it. This is part of a major restructuring of the U.N. system, which in addition to its international development area encompasses U.N. management and the organization’s peace and security pillar.

All while the U.N. Secretariat achieves, for the very first time, gender parity in its senior management positions – although the same cannot yet be said of other levels and departments.

The 2019 menu: frictions, priorities and conflicts

The year 2019 kicked off with the opening a major area of friction among key U.N. member states. In mid-January Palestine ­(a U.N. non-member observer state) took the 2019 chair of the G77 group of developing countries plus China. The U.S. and Israel objected to the move, which they saw as allowing the Palestinians to act more like a full U.N. member state this year. The G77 is currently comprised of 134 states and was established to sharpen the negotiating capacity of its members on economic matters.

In late January, at the World Economic Forum in Davos, António Guterres outlined his three priorities: 1) to prove to those reluctant to multilateralism that the U.N. is a vital actor to solve global problems; 2) to simplify and make the U.N. administration more transparent; and, 3) to show the added value of the organization.

These priorities represent just the tip of the U.N. iceberg. During 2019, the UN will have to accelerate efforts to achieve the Sustainable Development Goals (SDGs). As Guterres himself put it, “we need a sharper focus on what works in reducing poverty and inequality, and in delivering strong and inclusive economies while safeguarding the environment.” On this topic, a key date will be September 23rd, as Guterres will convene a Climate Action Summit in New York to mobilize public and private action to, among other objectives, increase financing to combat climate change: “the defining issue of our time,” as Guterres likes to describe it.

But it is Syria, where one the most lethal conflicts after the II World War is still being waged, that poses one of the greatest immediate challenges for the organization. The Norwegian Geir O. Pedersen, Guterres’ new Special Envoy for Syria, will try to mediate a political solution to a conflict in which the regime of Bashar al-Assad, with the support of Russia and Iran, has prevailed after a civil war that has already claimed more than 500,000 lives.

Further south, in Yemen, where the world’s worst humanitarian crisis has been unfolding since 2015, a U.N.-brokered ceasefire (last month’s Stockholm Agreement) has so far avoided a devastating full-fledged military confrontation in the key port city of Hodeida.

Although it is Africa where most of the U.N. peace and security work focuses. With volatility reigning in countries like Libya, Mali, South Sudan, Somalia, the Central African Republic and the Democratic Republic of the Congo, the continent hosts seven of the current fourteen U.N. peacekeeping missions.

And if all this were not enough, the current presidential crisis in Venezuela has again reopened the same fractures at the Security Council (i.e. Russia and China opposed to any type of foreign interference) that prevented the organ from taking action in places like Syria and Ukraine.

Somehow naively, the U.N. is always expected to resolve the most pressing crises that erupt around the world. As we have seen, the reality is very different. And 2019 will not be an exception.

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International Law

The normative context in defining ‘refugees’

Janakan Muthukumar

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Photo Credit: © UNHCR/Ivor Prickett

Contextual challenges in recognizing refugees

The Refugee Convention articulates that for any person to be qualified to be a refugee that person must have been outside from the country of his nationality due to the fact of a well-founded fear of being persecuted for reasons of race, religion, nationality, member of a particular social group or for having a particular political opinion. However, the Convention also in its stand approves that any person who has already been considered as a refugee under any treaty arrangements prior to this Convention would also be considered as refugees. The definition provided in the Convention is comprehensive, in a way that considers the cultural changes, and the interpretation includes the fear of persecution not only by the state actors but also by non-state actors.

However, there are also a number of restrictions, such as if a person voluntarily re-availed him or herself of the protection of his/her country of nationality, or has voluntarily reacquired the nationality of their state, the definition of refugees would not be applicable.  Further, if the state ceased to exist under the ‘cessation’ clauses, although according to the UNHCR, such clause required to be invoked sparingly, there is a possibility where the person may not fit within the definition provided by the Convention.  Nonetheless, the provision in the Convention so far has been interpreted broadly, in a way that the refugee status will not be considered to be ceased as long as the situation in the state of origin remains a danger.

Irrespective of these restrictions, the Convention remains as the central pillar, customarily interpreted in reflecting its objective and purpose of it – protecting individuals in need. Although in cases the general instability was found as a factor which is inconsistent to the prevent cessation of status, particularly due to the effect of persecution, it has also been considered as a viable internal alternative, which demonstrates that the customary interpretation of the Convention is limited. In other cases, the general instability was found as a ground for subsidiary protection that said, although the Convention fails to provide the required protection, still the state is obliged to grant such protection. Further, the Convention contemplates that irrespective of the condition of persecution remains a qualification, an individual could still qualify as a refugee given the fact there are compelling reasons arising from the previous persecution, commonly referred as ‘exemption from cessation.’ This exception applies only to the ‘statutory’ refugees, i.e. individuals who are eligible as refugees under the Article 1A (1) of the Convention: who were prior to the Convention were recognized as refugees. Further, the state practice is also contributing in extending the ‘exemption from cessation’ in protecting Convention refugees, irrespective of the fact, that the UNHCR noted clearly that such interpretation is not required by the Convention.

Nonetheless, the extent of the state practice creates now the customary norm, requiring this application, to be a purposive one. However, limitation applies under the exclusion clauses from the protection of non-refoulment to anyone qualify as a refugee under the serious reasons for consideration for have committed a crime against peace, war crime or crime against humanity or poses a compelling threat to national security or public order to the security of the country of refuge, where the individual who has already qualified as a refugee would subsequently lose the status. Note, however the exclusion clauses themselves have exceptions, such as child soldiers, decided in the case of AG v Zaoui by the Supreme Court of New Zealand, reflected on refoulment that goes hand and hand with the jus cogens status on preventing torture, noted that “[t]he prohibition on refoulment to torture has the  status of a peremptory norm or jus cogens with the consequence that article 33.2 [of the Refugee Convention] would now be void to the extent that it allows for [refoulment in such circumstances].” This implication of flexible application of the Convention was not only followed throughout the judicial decisions but also by legislative actions such as by the Council of Europe on the Recommendation 773, which recommended the European Union members to apply the definition of refugee liberally as amended by the Protocol of the Convention.

Evolution of a definition under the customary international law

As discussed above although the Convention has not amended explicitly in revising the definition of refugees, it has been customarily broadly interpreted as to justify the object and purpose. Although there has been an argument that the definition of refugees does not appear under the customary international law, but under treaty law, authors alike Hailbronner believes that the international obligation to grant protection to the victim is a ‘wishful legal thinking’, thus reflection through the state practice is a viable option. The American Society of International Law also produced that the human rights instruments are required to be read as a whole, thus protection prescribed in the Convention could be applicable to persons who enjoy any sort of non-refoulment. Thus, non-refoulment is a general principle, which Bazo also agrees that any individual who has the right to be protected under the international law must be covered by the definition of refugees. However, these arguments would be only valid if there are an extensive state practice and opinio juris to support the argument.

Regarding the state practice in expanding the definition of refugees, the reason for the primary expansion is because of civil wars, ethnic and communal conflicts and natural disasters, and of the acceptance that the international law can expand itself through custom. The Statue of the International Court of Justice prescribes that ‘evidence of a general practice accepted as law is law’ based on two elements: state practice which is described as a widespread and consistent practice of the states and opinio juris, the subjective belief of the state that engages in that practice, believing it as a requirement, not as an option. In this context, the statistics reveal that according to the UNHCR around 9 million individuals who have been identified as refugees, deserve protection, which from the state practice guidance provided in the case of North Sea Continental Shelf and of the history of the states to recognize and receive refugees to their respected nations represent the widespread practice, further be recognized not only through the subjective believe that it is the responsibility to protect refugees under the outgrown opinion juris, but also an international obligation under the treaty provisions such as Conventions Against Torture (CAT), and of the peremptory norm, jus cogens.

Defining Refugee through International Agreements

Although number of international instruments address the refugees in various stands, the Convention of the Organization of African Unity (OAU) on Refugees expands the definition of refugees includes, the people who displace due to the ‘external aggression, occupation, foreign domination or events seriously disturbing public order.’ Although there have been arguments that the intention of the drafters of the Convention was reflecting the post-colonial context, the fact that the Convention was signed by a number of largest recipients of refugees including Kenya, Uganda, Sudan, Zambia, Egypt and Tanzania makes the validity of the claim of the Convention in expanding the definition of refugees. In one step further, the states such as South Africa, Tanzania and Uganda adopted the Convention into their municipal laws impacts on the state practice, form a customary international law in expanding the scope of the definition of refugees. As such, the Bangkok Principles on the Asian -African Legal Consultive Organization also claims similar expansion in the definition of refugees, specially accepts the concept of refugees sur place, also claims the definition to cover any individual who was expelled from a state where his or her life or liberty is threatened for the reasons of race, colour, nationality, ethnic origins, etc.

The Cartagena Declaration focused on the forced migrants in Central and South America noted that Article 1(2) of the OAU Convention as the starting point of defining refugees, the declaration was although not legally binding in nature, endorsed by the Organization of American States, the UNHCR Executive Committee, further cited in the Brasilia Declaration on the Protection of Refugees and Stateless Persons in the Americans. It was signed and ratified by most of the American states, including Colombia, Costa Rica, Cuba, Dominican Republic, Ecuador, El Salvador, Guatemala, Mexico, Nicaragua and Venezuela. The Mercosur Rio de Janeiro Declaration further provided expanded definition includes not only to the individual whose life is threatened for the reasons of race, colour and nationality etc., as provided in the previously discussed declarations, but also the victims of a generalized violation of human rights. The declaration itself expresses the state practice by accepting the geographically diverse practice to support the existence of the customary international law.

The Refugee Convention, its Protocol of 1967, and the Protocol relating to the Status of Refugees 2001 attribute the expanded version of the definition of refugees, also affirms the important of the human rights and regional refugee protection instruments which by doing it expresses the obligation of the states to carry the burden for the stronger existence of opinio juris.

There has been also the subsidiary protection provided in the international agreements based on the context of persecution, often those individuals protected are referred as de facto refugees: the refugees who need are seen as legitimate, however, they would not qualify under the Convention. However, looking at the intention of the drafters of the Convention, it is expressed that the provisions of the Convention can be interpreted in a way to cover these expanded group of persons. However, there has been debate about this status, which was particularly addressed by the European Union in the context when considering the minimum standard of the directive failed to cover subsidiary protection. Although the directive models the Article 1(F) of the Convention, there has been no legal obligation to follow the terms, nor required to be supplemented by humanitarian assistance. Nonetheless, there are a number of international treaties calls for the subsidiary protection, such as the International Covenant on Civil and Political Rights (ICCPR) and the CAT in particular, the Article 3 which prohibits refoulment of a person, ‘where there are substantial grounds for believing that he would be in danger of being subject to torture.’

The European Convention on Human Rights and the American and African Charters make similar provisions on torture, establishes that the protection must be given to an individual when he is in ‘real risk.’ The EU Minimum Standards Directive 2004 particularly requires the member states to receive asylum application on the basis of the subsidiary protection who cannot go back to the country of origin because of serious harm, which includes death penalty or execution, torture and inhuman treatment or any other form of serious and individual threat to the civilian’s life by indiscriminate violence caused by the international or non- international armed conflict.

The state practice and the opinio juris have also been recognized in the context of refugees by the practice and mandate of the UNHCR that contributes to the formation of customary international law. It is because the organization embodies the state practice through being represented by the state delegates, or where the state cites the mandate of the organization being supervisory expresses opinio juris that the legal standards applied by the organization are accurate and the delegation by the states to the UNHCR could determine the status of refugees. In this context, the practice of the UNHCR cannot be dismissed, a representative opinio juris that is effective.

The Council of Europe through its Recommendation 18 of 2001 and by case laws such as in the case of Elgafaji v. Staatssecretaris van Justitie, Case C-465/07, 2009 E.C.R., argues for the qualification for the subsidiary protection which does not require to be a specifically targeted for harsh treatment, but as far is it fulfill ‘serious and individual treat’ due to the indiscriminate violence. It is to note that the EU did not broaden the definition of refugees, but provides legal standings for subsidiary protection, an expression of the opinio juris for the subsidiary protection.

Normative restrictions on the definition of refugees

Although the above discussion expresses that the definition of refugees has been expanded in a way to cover individuals, not just those facing the risk of persecution, there are also the existence of the negative impact of the customary international law that narrows the definition, particularly when there is a treaty provision which contrasts to the intention of the customary international law in this matter in particular.

One method the states adopted in narrowing the scope of the application of refugee law is by interpreting the territorial application of the Convention, which affects the determination of when an individual is outside his country of nationality. For an example, the US Supreme Court ruled that the Convention is not applicable outside the territory of the United States, whereas Russia interpreted in the same manner, along with interpreting the definition of territory.

The second method is by providing alternative relocation. Courts found when there is a possibility for the individual to relocate within the state of nationality, the application for refugee status can be rejected. However, in this context states found it from two approaches. First is to see whether there is genuine access to the areas of domestic protection, where the state can ensure the protection is meaningful, and the protection is not unpredictable. The second approach is comparing the situation of the area where the individual currently situated and the characteristic of the proposed area of protection, which is the approach the UK finds through the case laws since the first approach does not go along with the EU Council Directive 2004/83/EC.

The third method of the states enforce is applying the third country or safe country of origin tests to refuse the claims for asylum, in the basis that if the individual is coming from a country that has been deemed safe, then there is no requirement to provide asylum.

The fourth method is enforcing prohibitions on applying for recognition of refugee status through regulations under certain circumstances. Although it in first hand appears as it does not narrow the definition of refugees, but the fact the burden of proof is placed on the applicant that he has no disqualifying act or condition such as in the cases of terrorist suspects, such as in the case of Bundesrepublik Deutschland v. B, Case C- 57/09, 1990 E.C.R. and Bundesrepublik Deutschland v. D., Case C-101/09, 2010, severely affects the scope of being defined as a legitimate refugee. Further, broadly interpreting the acceptable criteria that the Convention spells out for refusing the refugee status, have certainly undermined the scope of the Convention, that indirectly impact in the definition and scope of refugees.

The fifth method is providing diplomatic assurances while refusing to accept the refugees, which is still remaining controversial. It was argued against by the UN Special Rapporteur on Torture as an ineffective approach has been used by states. The MOU signed by the UK with Jordan, Libya and Lebanon to provide blanket assurance is a clear example of it, which the Council of European Commissioner for Human Rights argued that “[t]he weakness inherent in the practice of diplomatic assurances lies in the fact that where there is a need for such assurances, there is clearly an acknowledged risk of torture or ill-treatment.”

In these contexts, this essay concludes that although normatively the definition of refugees has extended, the governments have been using different mechanisms in restricting the scope of it by not willfully restrict the definition, or contrast the customary international law, but by going around the definition, that has substantially weakened the entire legal scope of the extension of the definition so far has been built up by the customary international law.

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International Law

Human Trafficking in South Asia: Combating Crimes against Women

Dr. Nafees Ahmad

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Human trafficking is a lucrative crime with instant results, an offence of grave circumvention of human existentialism and a slap on the global security wall. While confronting human trafficking still remains an unfulfilled obligation of the international community as it is a global problem. However, SAARC has also committed to stamping it out while realizing its causes such as rampant poverty, inaccessible healthcare, gender discrimination, class conflicts, and minority injustices. South Asia is a region that is encountered with challenges of human rights such as prevention of human trafficking in women and children for prostitution, devising legal protection for children and evolving mechanism for combating terrorism. In South Asia, human rights discourse has become more intense in the wake of external castigation of its human rights record. Indeed, many Western governments and human rights watchdog institutions perceive South Asia as a reservoir of multi-dimensional discrimination in every walk of life. SAARC governments are mired in human rights transgressions contrary to their constitutional vision, mandate, and the rule of law, democracy, and good governance. South Asian consciousness against corruption, respect for governance institutions, human dignity, and probity in public and private life have been depleting at a pace that has not been experienced before.

Norberto Bobbio—an Italian philosopher—rightly expressed that the supremacy of human rights in present political and legal discourse as a revolutionary upsetting of the primordial practices in ruminating the primary task of moral philosophy to evolve in the designing of a compendium of duties instead of rights. From Two Tablets of Moses to Cicero’ De officiis including Immanuel Kant’s Sittenlehre which was construed as an edifice of duties raising the question in Kant’s second Critique is not “What are my rights?” but it posed “What should I do?” Therefore, the human rights situations of SAARC region cannot be assessed in total disregard of its historical and regional circumstances, nor can it be analyzed as per the preconceived model, tradition or standard of another region. Therefore, people of South Asia derived their viewpoints on human rights issues from their historical circumstances and practical experiences and formulated relevant policies and laws. However, Article 3 of the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (2000):

“Trafficking in Persons’ shall mean the recruitment, transportation, transfer, harbouring and receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.”

In this context, it is everyday human rights issues that determine the directions in which people are capable of living their lives in South Asia and elsewhere, they are of tremendous significance not only to all of us as individuals but also to us as members of South Asian society. Therefore, everyday human rights issues should be central to our collective social memory and practice just like certain international and domestic human rights events, victories, abuses and personages. The challenge, however, lies in trying to make these everyday issues attractive and newsworthy enough to capture people’s attention. What role can media play in illuminating these everyday human rights issues? Let’s try critically to analyze the questions arising out of the “SAARC Convention on Combating and Prevention of Trafficking in Women and Children for Prostitution”, the strengthening and enforcing of SAARC Convention on Promotion of the Child Welfare in South Asia and SAARC Regional Convention on Suppression of Terrorism in the light of on-going conceptual deliberations.

Human trafficking comes with a modern visage that derives its contours from antiquity and known as modern day slavery. Human trafficking is resorted by employing fraud, force, and coercion for prostitution, debt bondage, forced labour. Age and gender barriers are irrelevant in human trafficking as it is evident from the trafficked women of all ages, men, young children and teenagers. However, human trafficking is a global issue that has been affecting Global North and Global South countries alike and attained the proportions of organized crime. Human trafficking in women and children for prostitution has become a global trend and an offense that has been mushrooming and affecting almost every nook and corner of the world both as sources of passage or destination country. As per the UNODC (United Nations Office on Drugs and Crimes), victims from at least 127 countries have been recognized, and it is projected that a criminal is exploiting more than 2.4 million people at any given time. The ILO expects that there are 2.4 billion people in the world at any given time involved in forced labour and subjected to exploitation due to human trafficking. Around 800,000 women and children are trafficked every year across international borders out of which 80% are ending in forced prostitution. This projection does not include those trafficked within their own countries or missing children. Human trafficking in women and children for prostitution is a grave violation of human rights and has been regarded as a modern form of slavery. The United Nations projects that the trafficking of women and children for forced prostitution in Asia has victimized more than 30 million people. According to the OECD Reports, the human trafficking industry ranks among the top three highest grossing illegal criminal industries along with illicit drugs and arms. The study shows that over 160 countries across the world are known to be affected by human trafficking. It means that human trafficking is a terrible global reality and statistics adumbrated above would bleed the heart of every right-thinking person.

Thus, human trafficking poses an extreme threat to human rights and human dignity of considerable people in various parts of the world. It stays one of the least understood forms of transnational crime, with significant gaps existing in both the data on the incidence as well as differences in the ability of lawmakers to appropriately address the problem in their respective countries. Human trafficking is a life-threatening violation of human rights because of the involuntary manner in which trafficked victims are entrapped, transported, recruited and subsequently subjected to abuses and exploitation. The UN Office on Drugs and Crime, Regional Office for South Asia, (UNODC-ROSA) and the UN Women, South Asia signed a Memorandum of Understanding under which they committed to strengthening the present levels of cooperation in dealing with the organized crime of human trafficking in the eight SAARC countries. According to Article 1 of the SAARC Convention on Preventing and Combating Trafficking in Women and Children for Prostitution, 2002 “trafficking” denotes that the:

“moving, selling or buying women and children for prostitution within and outside a country for monetary or other considerations with or without the consent of the person subjected to trafficking.”

Unfortunately, there is no universal definition of trafficking, and the SAARC domestic laws even now lack a shared understanding of trafficking. Although India has a specific law on trafficking, but it does not define trafficking; it represents “prostitution” to have the usual attributes of trafficking for sexual exploitation. However, to determine the efficacy of criminal justice systems in South Asia and their effectiveness in addressing trafficking, it is essential to compare the standards in South Asia to the UNTOC standards as embodied in the Trafficking Protocol. The Protocol is reasonably comprehensive regarding looking at a variety of strategies to combat cross-border trafficking. Therefore, these gaps have raised several questions which have to be attended such as:

How to identify the administrative weaknesses in the enforcement system of anti-trafficking mechanism on a comparatively footing in South Asia?

Why there is a low number of arrest, prosecutions, and convictions for human trafficking in SAARC jurisdictions?

What are the reasons for insignificant legal integration of human rights, gender and child rights in domestic anti-trafficking laws and policies in SAARC countries?

What is the threshold of repressive state protection, prevention efforts in trafficking prone areas in SAARC jurisdictions?

Human trafficking encompasses recruitment, transfer, transportation, harbouring of persons through the use of duress, force, fraud, or coercion for exploitation. Economic inequalities, social disparities, and politico-cultural conflicts have led to the human mobility within all SAARC jurisdictions and across the borders in South Asia. Globalization has encouraged free movement of capital, technology transfer, expert exchanges, and sex service tours. Socioeconomic dependency, gender disparity, Illiteracy, cultural stereotypes, violence, social stigmatization, and endemic poverty inter-aliasociological deprivation of women and children in power-sharing, non-negotiable situations that have pandered to the emergence and mushrooming of the commodious problem of women trafficking in the entire SAARC region. This alarming spread of sex trafficking has fuelled the spread of HIV infection in South Asia, posing a unique and severe threat to community health, poverty alleviation and other crucial aspects of human development. Although the SAARC Convention on Trafficking in Women and Children has been a significant breakthrough, most of the SAARC countries do not have anti-trafficking legislation or means to protect the victims. Therefore, SAARC countries must make a concerted effort to treat women trafficking victims as “victims” of human rights transgressions in all their anti-trafficking policies and practices.

Abolition of women trafficking is inescapably a long-term process that involves a catena of causes like poverty, education, gender inequality, minority rights, and healthcare along with dismantling the actions of criminal syndicates. By its very nature, women trafficking for prostitution are a surreptitious crime for which adequate and comparable statistical data is rarely available. As of January 2017, 170 nation-states have ratified the Additional Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children to the UN Convention against Transnational Organized Crime which was adopted in 2000 (also known as Palermo Protocol) and India has even ratified it. The Palermo Protocol was the first international legally binding instrument with an agreed definition of human trafficking. However, there is an urgent necessity for greater collaboration between security agencies of South Asian countries to protect the victims. The key challenges to human trafficking in South Asia are porous borders, growing trade links, incoherent approach, lingual hurdles and time-consuming process of identification, verification, coordination, and implementation. Thus, it highlights the need for greater collaboration and assistance to rehabilitate and rescue victims of trafficking. At the same time, the UNODC South Asia must assist SAARC countries to develop comprehensive and sustainable responses to trafficking in persons. Such interventions include the prosecution of perpetrators, protection, and assistance of victims and, most importantly, prevention measures. SAARC jurisdictions countries have to have a unified and integrated action against human trafficking in the spirit of shared responsibility.

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