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Liability for Destruction of Cultural Property in International Criminal Law: Reading the Al Mahdi Reparations Ruling

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17th August, 2017 will go down in history as a momentous day in Transitional Justice. On this day Trial Chamber VIII of the International Criminal Court (ICC) issued a reparations order in the case of The Prosecutor v. Ahmad Al Faqi Al Mahdi holding Mali Isalmist militant Al Mahdi liable for 2.7 million euros in expenses for individual and collective reparations for destruction of cultural property in Timbuktu, Mali, the second time in the history of the Court where orders for reparations have been made, the first being in Germain Katanga’s case.

Background

Al Mahdi was convicted of war crimes on 27th September, 2016 following an admission of guilt by Trial Chamber VIII, composed of Presiding Judge Raul C. Pangalangan, Judge Antoine Kesia-Mbe Mindua and Judge Bertram Schmitt. The war crimes pertained to attacking 10 protected objects as co-perpetrator under Articles 8 (2) (e) (iv) and 25 (3) (a) of the Statute. The 10 projected objects were the mausoleum Sidi Mahmoud Ben Omar Mohamed Aquit, mausoleum Sheikh Mohamed Mahmoud Al Arawani, mausoleum Sheikh Sidi Mokhtar Ben Sidi Muhammad Ben Sheikh Alkabir, mausoleum Alpha Moya, mausoleum Sheikh Sidi Ahmed Ben Amar Arragadi, mausoleum Sheikh Muhammad El Micky, mausoleum Cheick Abdoul Kassim Attouaty, mausoleum Ahamed Fulane, mausoleum Bahaber Babadié, and the Sidi Yahia mosque.​

The attacks which took place between 30th June 2012 and 10th July 2012 resulted in a nine year prison sentence for Mahdi that was delivered by the Court in September 2016. Pursuant to the conviction, the Chamber initiated a reparations phase calender and granted applications by the UNESCO and other amici curiae to file submissions on reparations related issues. Additionally, general submissions on the reparations from the Trust Fund for Victims (TFV), Legal representative of Victims (LRV), defence, Office of the Prosecutor (OTP), Registry and Malian authorities were invited. This process set in motion the reparations process. A total of 139 reparations applications were submitted by the LRV claiming both collective and individual reparations.

Applicable Law

Article 75 (1) of the Rome Statute provides that the Court shall establish principles relating to reparations of victims including restitution, compensation and rehabilitation. On this basis the Court is competent to determine the scope and extent of any damage, loss and injury to victims.  In addition, the UN Basic Principles of Justice for Victims of Crime and Abuse of Power and the UN Basic Principles on Reparations for Victims complement Article 75 to establish principles relating to reparations.

Reparations in the present case, according to the Court, ought to be designed  to relieve the suffering caused by the serious crime committed, addressing the consequences of the wrongful act committed by Al Mahdi, enabling the victims to recover their dignity and deter future violations. In addition, these may assist in promoting reconciliation between the victims, the affected communities and the convicted person.

Principles of Reparations enunciated by the Court

The Chamber emphasized the following principles to be fundamental while deciding on reparations:

All victims are to be treated fairly and equally as regards reparations, irrespective of whether they participated in the trial.

The victims of the crime shall have equal access to information relating to the reparations proceedings as part of their entitlement to fair and equal treatment throughout the proceedings. However, at the implementation phase, it is acceptable to prioritise reparations to those victims who are most harmed by the convicted person’s conduct.

Victims should be allowed to participate throughout the reparations process and all support to make this participation substantive and effective should be undertaken.

Reparations shall be granted to victims without distinction on grounds of gender, race, age, colour, language, religion or belief, political or other opinion, sexual orientation, national, ethnic or social origin, wealth, birth or other status.

During the process of deciding reparations the safety, physical and psychological well-being and privacy of the victims shall be respected.

Adequacy and promptness of the reparations are of paramount importance.

Reparations should reflect local cultural and customary practices unless they are discriminatory or deny victims equal access to their rights.

Award of reparations in the present case does not exonerate States from their separate and independent obligations, if any, which may exist under International Law.

A reparations order cannot be inconsistent with the rights of the person required to give reparations.

Lastly, a reparations order should contain the following five mandatory elements:

  • It must be directed against the convicted person
  • It must establish and inform the convicted person of his/her liability with respect to the reparations awarded in the order
  • It must specify and provide reasons for the type of reparations ordered, namely collective, individual or both.
  • It must define the harm caused to direct and indirect victims as a result of the crimes of which the person was convicted. In addition, the modalities of reparations that the Chamber considers appropriate in the case should be mentioned.
  • It must identify the victims eligible to benefit from the awards for reparations or set out the criteria of eligibility based on the link between the harm suffered by the victims and the crimes of which the person was convicted.

Who are the Victims?

In the Victim Participation Decision of the Court on 8th June, 2016, the criteria to be met for individuals or organisations to be considered as victims was laid down.

The Harm Principle

To be eligible for reparations, a victim must have suffered harm as a result of the commission of the crime. The Appeals Chamber of the ICC defined ‘harm’ in the Lubanga case to mean ‘hurt, injury and damage’. The hurt may be direct or indirect but it should be personal to the victim. It may be material, physical or psychological. Harm may be caused to a natural person or an artificial entity. In case of artificial entities, demonstration of harm to their properties is essential. The concept of moral harm is recognized, which should be estimated without consideration of the economic situation of the local population.  The crime committed should be the actual and proximate cause of the harm for which reparation is claimed. The test of ‘Reasonable Foreseeability’ will be employed to determine proximate cause. The applicable standard of proof is that of ‘balance of probabilities’.

Types and Modalities of Reparations

Reparations may be either individual or collective. They are not mutually exclusive and may be awarded concurrently. Individual business and families may receive financial support as part of collective reparations. As regards modality of compensation, Article 75 of the Rome Statute gives a non-exhaustive list including restitution, compensation and rehabilitation of victims.

Compensation is understood as money awarded to victims recognizing the harms they may have suffered.

Rehabilitation seeks to restore the victims and their communities to their former conditions. This may incorporate economic, social, medical and legal services.

Reparations can be symbolic in character suited to remedy the harm caused to a community.

Who were the victims of Mahdi’s crimes?

According to the Chamber, the victims of the destructions of the Protected Buildings were not merely the direct victims of Timbuktu but all the people of Mali and the international community.  While 3 broad categories of victims were identified, the Chamber noted that the degree of harm suffered varied for each of the groups. Needless to mention, the community of Timbuktu suffered the most on account of Mahdi’s crimes. No applications were submitted for compensation either by Malians outside Timbuktu or members of the international community. Interestingly, even the UNESCO did not submit any application for reparation and stated that the local communities of Timbuktu have been the principle victims of Al Mahdi’s crimes. Despite the same, the Chamber acknowledged the destruction of the protected buildings as an erasure of a part of the heritage of mankind. All but one of the buildings destroyed were UNESCO World Heritage Sites. Most significant was the determination that addressing the harm caused by the Timbuktu community will adequately address the broader harm suffered by Malians and the international community as a whole. This was all the more significant according to the Court as it would ensure the maximisation of reparations awarded to the Timbuktu community. Additionally, the reparations must be directed at the local community so as to bolster their ability to strengthen the cultural heritage of their community in the wake of systematic destruction.

Mahdi’s Apology

While accepting Mahdi’s apology as genuine, categorical and empathetic, the Court did not view the same as a substitute for monetary compensation. A video excerpt of Mahdi’s apology posted in the ICC’s website along with a transcript translated into the primary languages spoken in Timbuktu, according to the Court would also serve as symbolic reparations. A hard copy of the apology could be made available to any of the victims on demand.

Economic Loss caused by Mahdi

The chamber determined that Mahdi caused economic harm. Guardians of the mausoleums, the macons tasked with the prominent responsibilities in maintaining them and people whose business could not exist without the Protected Buildings including those dependent of tourism and economic activity were adversely affected by Mahdi’s acts.  The chamber awarded individual reparations to those whose livelihoods exclusively depended upon the Protected Buildings. For the others, the chamber determined that collective reparations would serve the purpose. Individual reparations imply direct monetary compensation, whereas, collective reparations should be aimed at rehabilitating the Timbuktu community. This may include, according the chamber, community based educational and awareness raising programmes to promote the unique cultural heritage of Timbuktu.

Moral harm caused by Mahdi

The chamber concluded that Mahdi caused moral harm. This includes mental pain and anguish including losses of childhood, opportunities and relationships to the members of the local community. The disruption of the cultural life of the local community is a moral dimension of the harm caused. The protected buildings were viewed as protectors of the community from external harm and its destruction shattered the communities’ collective faith. 

Award of Compensation

Adding up the total cumulative liability of Mahdi’s act, the chamber set his total liability at 2.7 million euros. The figure includes both individual and collective reparations. Symbolic reparation of 1 Euro was ordered to be granted to the international community best represented by UNESCO.  The fact that Mahdi was indigent would have no bearing on the question of personal liability. Rule 97 (1) provides that the Chamber shall take into account the ‘scope and extent of any damage, loss or injury’, however, the personal financial circumstances of the convicted persons are not mentioned.  However, since Mahdi is indigent, the Chamber encouraged the TFV to complement any individual and collective reparations to the extent possible and engage in fundraising events to the extent necessary to complement the totality of the award. The TFV is required to notify the draft implementation plan for the reparations award by 16 February 2018 on which the Defence and LRV are required to file observations within 30 days of the notification. While the TFV’s implementation plan will be keenly awaited, the Trial Chamber order does a great service to International law by articulating the principles of reparations in International Criminal Law, thereby strengthening the anti-impunity framework in a creative and robust manner.

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International Law

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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International Law

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

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

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

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

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

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

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

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

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

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