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International Law

After 72 years, nuclear weapons have been prohibited

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7 July 2017 was a momentous day for disarmament and arms control. On that day, 122 states approved the Treaty on the Prohibition of Nuclear Weapons, often called ‘the ban treaty’, at the United Nations in New York. Once 50 states have ratified the treaty, nuclear weapons will be illegal. The agreement will prohibit the possession of nuclear weapons for all states in the same way as the chemical and biological weapon conventions have prohibited those weapons for all.

In the final report of the 2010 Non-Proliferation Treaty (NPT) Review Conference, the parties to the treaty expressed ‘their deep concern over the catastrophic consequences of any use of nuclear weapons’. Since then, it has taken three international conferences to debate these consequences, a humanitarian pledge signed by over 100 states and a UN Open-ended Working Group to agree to start negotiations on a prohibition treaty. Consequently, the treaty is above all a humanitarian achievement recognizing the indiscriminate nature and uniquely destructive power of nuclear weapons.

This is also reflected in the process. Civil society has been an organic part of the negotiations. The voices of the victims of nuclear weapons and nuclear weapon testing have been heard as never before. In her deeply moving closing statement, Setsuko Thurlow, an atomic bomb survivor, said: ‘This is the beginning of the end of nuclear weapons’.

The Nuclear Non-proliferation Regime

None of the world’s nine nuclear-armed states participated in the negotiations.[1] Nor, at least in the near future, will they be among the states to ratify the treaty. They continue to claim that nuclear weapons are an indispensable part of their security while at the same time actively working to prevent other states from developing them.

Most of the nuclear-armed states and the states protected under the so-called nuclear umbrella voted against negotiations on the Treaty when they were proposed in a resolution in the General Assembly in December 2016. China, India and Pakistan abstained and North Korea voted in favour. None of the nuclear-armed states or the states protected by the US nuclear umbrella participated in the negotiations. The Netherlands, a NATO country that abstained in the UN vote, was the only nuclear-protected state to participate in the treaty negotiations—and the only state to vote against the final text of the prohibition treaty. Singapore abstained.

This new legal prohibition comes at a time when many experts consider the existing nuclear non-proliferation regime to be in crisis. The cornerstone of this regime is the NPT, which opened for signature in 1968 and entered into force in 1970. It gave the five nations that had exploded a nuclear weapon/device before 1 January 1967 the right to possess nuclear weapons, provided that they commenced negotiations on complete and general nuclear disarmament. The new treaty is a forceful confirmation of article VI of the NPT.

The NPT is reviewed every five years. The final conference document, which is approved by consensus, describes the issues at stake, and proposes future action and reform. The final document of the 2000 Review Conference produced a list of 13 practical steps to be taken. The 2010 Review Conference defined an action plan with 64 actions. The lack of implementation of or concrete results from both documents has been severely criticized.[2] Furthermore, the review conferences in 2005 and 2015 were unable to produce a final document.

There is general agreement that reform of the NPT is needed but no agreement on what form this reform should take. There are two parallel agendas for reform.[3] First, the agenda of Washington and its allies, which seeks to constrain the non-nuclear weapon states by limiting enrichment and reprocessing rights, tightening export controls, imposing more rigorous inspections, and making the need for an Additional Protocol compulsory and withdrawal from the NPT—currently a legal right—impossible.[4]

Second, there is the agenda of the Non-Aligned Movement (NAM), which sees the existing safeguards as satisfactory. These states do not accept limits on technology access and are protective of their right to leave the NPT. In their view, the obligation to disarm must be taken seriously. Despite agreement on the 13 steps in 2000 and the action plan in 2010, the pace of nuclear disarmament has been extremely slow. The path to nuclear disarmament chosen by these states therefore was to focus on the humanitarian consequences of the use of nuclear weapons and start negotiations on a parallel treaty within the UN but outside the context of the NPT.

The Contents of the Ban Treaty

The new treaty prohibits the use or threat of use of nuclear weapons. While the prohibition on use reaffirms international law, the prohibition on the threat of use is an advance.

Furthermore, like the NPT, the treaty prohibits the development, testing, production, manufacturing and other ways of accessing nuclear weapons. The transfer or receipt, as well as the stationing, of nuclear weapons are made illegal, and any assistance or encouragement to do so is not permitted. New issues are introduced, such as victim assistance, environmental remediation and gender-related aspects.

Special procedures have been designed for nuclear weapons states to ratify the treaty as well as those that have nuclear weapons stationed on their soil. All states are expected, as a minimum, to maintain the safeguards standard. In addition, the states parties shall designate a competent international authority (or authorities) to negotiate and verify the irreversible elimination of nuclear programmes and facilities.

Consensus was not possible on a number of issues and many questions were left open, which left many governments feeling disappointed. Issues such as a prohibition on transit or the financing of nuclear weapon programmes were proposed but not explicitly mentioned in the final text, although they were indirectly included in the concept of assistance. The lack of definitions of a nuclear weapon and testing were seen by some states as a problem. Verification was a central issue and many would have liked the IAEA Additional Protocol to be mentioned as a minimum. According to some states, withdrawal from the treaty was also made too easy.

A Hierarchy of Treaties?

The negotiations in New York have polarized the nuclear field. During the work of the Open Ended Working Group, the response by states opposed to a treaty had been labelled ‘the progressive approach’. This underlined the importance of the Conference on Disarmament and assumed a step-by-step process that would include steps such as no-first-use declarations or ratification of the Comprehensive Nuclear-Test-Ban Treaty (CTBT).[5] These states expect the new treaty to weaken the NPT by, in their view, creating a parallel structure outside the NPT with a weaker verification regime. The fear is that non-compliant states could hide their intention to develop nuclear weapons.

Some of the non-nuclear weapon states underline the treaty’s complementarity with the NPT and see it as strengthening the NPT. In their view, legally prohibiting nuclear weapons is a repair project that replaces the NPT’s lack of action on nuclear disarmament with a renewed call for the abolition of such weapons.

The frustrated majority among NPT participating states sees the ban treaty as a new legal instrument in its own right. For these states, the original balance between non-proliferation and disarmament in the NPT has been distorted, and the NPT has become a treaty only for non-proliferation. These states are not worried about the minimum verification standard because many of them have not ratified an Additional Protocol.

This polarization has raised the question of whether there will be a hierarchy of treaties. Will the ban treaty supplement or supplant the NPT? Which one will be the fundamental treaty? The relationship is not clearly defined and this will no doubt become the focus once the ban treaty has been ratified and is being implemented.

What Next?

The Treaty Prohibiting Nuclear Weapons faces a ratification process, according to which 50 states must ratify it before it enters into force. It is hoped that the process will be concluded before the next NPT Review Conference in 2020.

No one expects the nuclear weapon states to abolish their nuclear weapons and ratify the ban treaty any time soon. Nor will the treaty affect their modernization plans currently under way. The treaty is a future-oriented, normative treaty that delegitimizes and stigmatizes nuclear weapons.

Nonetheless, changes are already taking place. The classic argument of NPT supporters that ‘this is the only treaty we have’ no longer holds. Coming nuclear seminars and conferences will have to pay attention to the relationship between the two treaties. Additional pressure will be put on the nuclear weapon states to show progress on disarmament. Civil society has a new instrument at its disposal. The most positive comment, however, came from a young person observing the negotiations in New York: ‘This treaty has really created new energy in the nuclear field’. This is true, and we will all have to wake up.

First published in SIPRI.org


[1] The five nuclear weapon states under the 1968 Treaty on the Non-proliferation of Nuclear Weapons (Non-proliferation Treaty) are China, France, Russia, the United Kingdom and the United States. Three nuclear weapon possessor states have not signed the treaty: India, Israel and Pakistan. North Korea ratified the treaty but withdrew in 2003.

[2] Reaching Critical Will, The NPT Action Plan Monitoring Report, March 2015.

[3] Miller, S., Nuclear Collisions: Discord, Reform and the Nuclear Nonproliferation Regime (Cambridge, MA: American Academy of Arts and Sciences, 2012).

[4] An Additional Protocol is a legal document that grants the International Atomic Energy Agency (IAEA) additional authority to verify a state’s compliance with its safeguards obligations.

[5] The Conference on Disarmament is a forum established in 1979 by the international community for its member states to negotiate multilateral arms control and disarmament agreements. The conference negotiated the Biological Weapons Convention and the Chemical Weapons Convention but has for the past 20 years been unable to agree on a work plan for nuclear weapons.

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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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International Law

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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