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UN Human Rights Treaty Bodies Reforms: From Shuffling the Cards to Performing Global Constitutionalism

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The October-November 2017 are the delineating and defining months that present a constitutional moment in the pilgrimage of human rights when some human rights bodies of global and regional visage will sit in judgement at Geneva in Switzerland to assess the degree of States’ compliance with their human rights obligations through the States’ reports, civil society groups’ submissions, country visits, stakeholders’ hearings, webinars, individual representations and conference presentations.

Five UN Human Rights Treaty Bodies (HRTBs) are going to have their meetings throughout October 2017 to have stock-check of States’ observance with their HRTBs mandate on ICCPR-1966, ICESCR-1966, CEDAW-1979, CAT-1984, and CRC-1989. UN Human Rights Council (UNHRC) and its Social Forum will be in session and UNHRC will organize Seminars, Working Group Discussions and Thematic Panel Discussions on international human rights issues like refugees, migrants, displaced persons, climate change, transnational corporations, prevention of torture, custodial violence, fair trial guarantee, and gender justice and rights. At the regional level, the European Committee on Social Rights (ECSR), European Court of Human Rights (ECtHR), Inter-American Commission of Human Rights (IACHR) and Inter-American Court of Human Rights (IACtHR) will have their sessions too.

There are numerous bodies established under the UN Charter for promoting and monitoring compliance with international human rights, namely; the UN Human Rights Council, the Office of the High Commissioner for Human Rights, and the High Commissioner for Human Rights, the Security Council (UNSC), the General Assembly (UNGA), the Secretariat (and the Secretary-General), and the International Court of Justice. Of these, the UN Human Rights Council and the Office of the High Commissioner for Human Rights are the most active in enforcing and monitoring compliance with international human rights. UN System is a Charter-based bodies system that seeks to uphold international human rights in general; while UN  Human rights Treaty Bodies (HRTBs) address compliance with human rights in the particular human rights treaty under which they were established. Primarily, the UN human rights system is composed of two kinds of bodies; (a) Charter-based Bodies that includes the Human Rights Council and its subsidiary mechanisms and thematic mandate holder (e.g., the Human Rights Expert Mechanism on the Rights of Indigenous Peoples; Special Rapporteur on the Situation of Fundamental Freedoms of Indigenous People and Human Rights. However, Treaty Bodies – created under the international human rights treaties and made up of independent experts that have the mandate to monitor States parties’ compliance with their treaty obligations.

Therefore, the United Nations (UN) Human Rights Treaty Bodies (HRTBs) are the substratum of global human rights framework whereunder the human rights commitments, and convictions of the national governments are accounted for implementation. The HRTBs system is a synthesis of ideality and reality based on dreams and desires of humanity and ideals and practical realization of fundamental purposes and core principles of the UN Charter. The HRTB system is an unprecedented attainment of the common good in the history of global gratification for human rights beyond the multitude of geopolitical structures in all the countries. The system of HRTBs stands at the heart of the international protection framework for human rights that translate the global standards, universal norms, and democracy of judicial remedies into affirmative action, the primacy of individual development, communitarian and collective welfare of the humanity. The HRTBs mechanism is a budding and promising contrivance that provides authoritative roadmap on human rights standards, makes recommendations how human rights treaties are invoked and applied in specific cases, and apprises the High Contracting parties of what they must do to make sure that all people are free and equal and enjoy the full realization of human rights.

But, there is a pivotal question as to what extent these HRTBs have been pragmatic in accomplishing the global vision of a world wedded with human rights from textual literalism to transformative functionalism that remains to be seen? Therefore, the UN Member-States (UNMS) contemplated and concluded a State-Led Reform Process (SLRP) to strengthen and enhance the effective functioning of the HRTBs system by adopting the Resolution 68/268 in the UN General Assembly on 9 April 2014. Thus, the SLRP is armed with the architecture of ten Expert Committees entrusted with the responsibility to monitor the enforcement of the obligations in the UNMS enunciated under the core human rights treaties with the additional protocols thereto. Primarily, the SLRP process has started by the states to appreciate the objections to fundamental countenances of the HRTBs’ work to surpass the current reform endeavours initiated by the UNHCHR (United Nations High Commissioner for Human Rights). Despite the fact that HRTBs reform process ill-starred but its Final Resolution mostly sidesteps the adverse corollaries for their autonomy and independence and makes significant changes that are bound to affect their work in the long run. Nevertheless, there is a need to do a lot to enhance the efficacy of HRTBs in protecting, promoting, and preserving the human rights for all.

HRTBs: Realizations and Contestations

The HRTBs is an integral constituent of international human rights system that ensures the protection by doing an independent and impartial assessment of compliance and enforcement thresholds of human rights obligations on the part of high contracting parties. The HRTBs personnel contacts, coordinate, and conduct negotiations with plenipotentiaries of the high contracting states during Public Review of Periodic Reports of the states regarding implementation of the international human rights treaties in their respective jurisdictions. They also make public and publish all conclusions and recommendations based on the progress achieved by the countries in their human rights obligations. They come to decisions on individual and collective cases of human rights alleged violations, monitor the human rights and offer general comments interpreting the scope of the human rights commitments. The HRTBs outcomes are important to national governments, HRDs (Human Rights Defenders), NHRIs (National Human Rights Institutions), and NGOs (Non-Governmental Organizations) who provide and share the information to HRTBs and cite their conclusions, findings, and recommendations in their reports. The HRTBs also disseminate the work of UN-UPR (UN-Universal Periodic Review), UNHRC (UN Human Rights Council), UN Special Procedures, Academics, and the Courts at national, regional and international levels.

Nevertheless, HRTBs are confronted with considerable impediments in their efficacy and primacy in the absence of compelling machinery to implement the human rights mandate in the UNMS. The treaty obligations both substantive and procedural must be implemented by ensuring the conformity with human rights treaty standards inter-alia compliance of the HRTBs recommendations and submission of reports respectively. However, the majority of the UNMS and states parties to international human rights treaties do not submit their reports on time, and few of them do not report at all to UNHRC. But some states do prepare remarkable reports with the help of their domestic human rights expertise, internal HRDs and other stakeholders and countries also try to ensure significant implementation of HRTBs findings with varying degrees. The emplacement of four new HRTBs in the last ten years has posed a new set of challenges that include their ratification and mounting reporting. As of now, the HRTBs did not receive sufficient resources and wherewithal to monitor and regulate their slow functioning in disposing of backlogs of reports and communications. HRTBs experts are under tremendous pressure due to the mounting workload that strains their efficiency and efficacy. These experts and consultants are nominated and elected by the states parties to the human treaties. They are not paid and serve on the HRTBs in their personal capacities without getting adequate support from the Office of the OHCHR (UN High Commissioner for Human Rights). Therefore, the administrative functionalism in the HRTBs structure does not conform to the global standards that made it cynical and indifferent.

HRTBs Reform Peregrination

Having recognized these challenges, the Human Rights Treaty Body reforms have been initiated in 2009 by the UN High Commissioner for Human Rights Navi Pillay as a cycle of consultations involving the entire stakeholders to strengthen the HRTBs that has come to known as Dublin Process. These plans triggered significant ruminations among the present and past HRTBs academics, consultants, experts, NGOs, NHRIs, UNMS, UN Secretariat and other UN bodies. The Dublin Process completed its mandate in 2011, but a group of States led by Russian Federation raised objections that impugned process had not adequately addressed the concerns of many stakeholders. Consequently, the group successfully pushed the UN General Assembly to start the inter-governmental process based on SLRP structure. Therefore, UN General Assembly adopted a resolution in February 2012 whereunder process was created that was supported by the eighty-five States and sixty-six States abstained including the US from voting. On the Dublin Process, the UN High Commissioner for Human Rights published her report in July 2012 and negotiations had started among the States and stakeholders including international civil society institutions and organizations. Consequently, in February 2014 States brokered an agreement that was adopted by the UNGA in April 2014 as a formal resolution.

The Aftermath of the SLRP

The Dublin Process intended to secure the maximum threshold of States compliance with their obligations about reporting and meeting to facilitate the HRTBs to review the UNMS reports in an agreed and stipulated time frame. The High Commissioner for Human Rights has mooted a proposal of adopting the mandatory Master Calendar to ensure the compliance of the States parties to the human rights treaties on every five years, but many States has resisted that. If accepted, the impugned proposal would have doubled the meeting time of the States parties to the human rights treaties, but during SLRP negotiations States raised legal, pecuniary and feasibility challenges and, ultimately, it resulted in a fiasco. Even so, the SLRP has increased the meeting time of the HRTBs by more than 20% during 2012-2015. The average workload of each HRTBs has been determined every two years based on a formula so that there would not be any arrear or accumulation of cases at the cost of other functions and priorities.

Even though the Resolution enhances the HRTBs meeting time, but it does not considerably enhance the total amount of resources reserved for HRTBs. The UN regular budget covers the global funding needs of the OHCHR at a rate of 40 percent approximately. The residue is covered by voluntary contributions from UNMS and other donors. The UN regular budget, approved by the UNGA every two years, is paid by the “assessed contributions” from each Member State that are decided and determined according to a formula that takes into account the size and strength of their respective national economies. The UN’s regular budget should finance all activities mandated by the General Assembly and its subsidiary organs, including the HRC. Further, on an annual basis, the resolution makes provision for creating a capacity-building programme under OHCHR that assists the States upon their request to salvage their problems.

Harmonization of Procedures and Methodologies

The UNHRC’s report impressed upon the HRTBs to harmonize their procedures and methodologies so that their working could be improved. The SLRP or Cross Regional Group (CRG) led by Russian Federation alleged that HRTBs had exceeded treaty briefs in their style of functioning, intangible methods, indulged in political castigation of States and allowing to reference information culled from the civil society institutions like NGOs, etc. Moreover, HRTBs officials resorting to iconoclastic and innovative techniques in developing new procedures to ascribe the States’ policies, general comments, recommendations and enforcement thereof. Consequently, states impressed upon the UNGA to insist on changes to the procedures of the HRTBs and to ensure bigger obsequiousness and primacy to the views of the States. However, many States asked for self-regulation on the part of HRTBs precisely to guarantee impartiality, independence, and honesty in their functions and operations.

The intergovernmental process or SLRP vouches for UN High Commissioner for Human Rights’ proposed procedural reforms whereunder HRTBs are required to harmonize their procedures. SLRP impressed upon the HRTBs that they must conform to their Mandate and respect the positions of the state parties. Therefore, in achieving the larger harmonization, the resolution called for empowering HRTBs’ Chairs to take procedural decisions incommensurate with their prior deliberations with the fellow experts. Thus, the HRTBs’ Chairs have started the deliberations and discussions in this connection. At one fell swoop, the resolution does not put HRTBs member states in a supervisory control position over the HRTBs experts in ways that could have critically cast a shadow upon their inspection of States’ performance in preserving, promoting, and protecting the human rights. However, the resolution does not support a polemical proposal of CRG that contemplated a Code of Conduct for HRTBs experts while ensuring their accountability under a mechanism. As an alternative, it urges the HRTBs to review their Self-Regulatory Guidelines (SRGs) on accountability and independence while keeping in view the States’ concerns.

Improving the Execution and Openness

There is a requirement of enhancing, improving the existing threshold of execution and implementation of HRTBs with transparency in conformity with UN High Commissioner’s objectives to ensure the high quality reporting and enforcing the HRTBs’ recommendations in the municipal jurisdictions of the States parties. However, UNGA Resolution makes a sporadic mention that States to emplace “standing national reporting and coordination mechanisms” to compile reports in consultation with civil society institutions, NGOs, non-state actors and all stakeholders while appreciating and monitoring the HRTBs work and recommendations and their implementation. On the issue of accessibility and openness, UN High Commissioner advocated their enhancement and reflection in the functioning and operations of HRTBs. Further, UNGA Resolution envisages the UN webcasting of HRTBs meetings but, unfortunately, it has been perceived as rhetoric leaving it to OHCHR to arrange its funding. Moreover, it has also recommended that HRTBs should stipulate word limitations to reports and representations made by the NGOs and other civil society groups just to rationalize the cost incurrences. Similarly, UNGA Resolution begs off to entertain the recommendations of the UN High Commissioner regarding promotion and selection of HRTBs experts and consultants.

Conclusion

The ratification of human rights declarations, treaties, and optional protocols must be mobilized on the largest scale to improve upon human rights protection at all levels of nation-states, regional arrangements, and global commitments. Simultaneously, national constitutions, national legislations, public policies and lego-institutional response structure must conform to the HRTBs system. There are many challenges confronting the HRTBs like overstraining of resources due to the proliferation of human rights treaty bodies, States parties reluctance and irregularity in reporting, and mounting individual communications. However, there are some States both from developed and developing a world that is entirely compliant with their reporting obligations, but there is a backlog of reports with the HRTBs. However, if all the States parties start reporting in a disciplined manner and well-stipulated timeframe, HRTBs system might collapse as it is not well-equipped to handle the entire gamut of reporting submissions. The UNGA Resolution 68/268 has been adopted to reflect upon and strengthen the HRTBs system.

It is aptly be put forward that UN General Assembly has been attending, appreciating and addressing many of the HRTBs concerns regarding resources, functioning, and operations but much remain to be tackled to make HRTBs stronger and stouter in responding to emerging human rights violations. UNGA resolution seeks to make HRTBs system more sustainable and sturdier without incurring further UN resources while making optimum utilization of enhanced meeting time slots. However, the requirement for more resources would occur in future owing to the sustainability apprehensions and anxieties as there would be mounting workload of HRTBs disproportionate to the limits of the volunteer experts’ capacity. Thus, rights-holders and stakeholders of the HRTBs must be central to any review of the HRTBs system.

Therefore, currently contemplated reform agenda is insufficient and intangible to meet these challenges posed by the HRTBs. In a nutshell, all stakeholders to the HRTBs structure must pursue the substantive objectives identified in the Dublin Process along with UN High Commissioner’s Report. Hence, the visibility of HRTBs to larger public must significantly be enhanced, reporting quality and regularity of State reports submissions must be increased, proactive implementation of recommendations of the HRTBs, and strengthening the efficacy of HRTBs membership while upholding the accessibility, accountability, independence and transparency of the HRTBs system to all the stakeholders and civil society groups. HRTBs require these indispensable, inevitable and inescapable changes so that HRTBs could make a greater contribution to the protection, preservation, and promotion of human rights and civil liberties across the world.

Ph. D., LL.M, Faculty of Legal Studies, South Asian University (SAARC)-New Delhi, Nafees Ahmad is an Indian national who holds a Doctorate (Ph.D.) in International Refugee Law and Human Rights. Author teaches and writes on International Forced Migrations, Climate Change Refugees & Human Displacement Refugee, Policy, Asylum, Durable Solutions and Extradition Issus. He conducted research on Internally Displaced Persons (IDPs) from Jammu & Kashmir and North-East Region in India and has worked with several research scholars from US, UK and India and consulted with several research institutions and NGO’s in the area of human displacement and forced migration. He has introduced a new Program called Comparative Constitutional Law of SAARC Nations for LLM along with International Human Rights, International Humanitarian Law and International Refugee Law & Forced Migration Studies. He has been serving since 2010 as Senior Visiting Faculty to World Learning (WL)-India under the India-Health and Human Rights Program organized by the World Learning, 1 Kipling Road, Brattleboro VT-05302, USA for Fall & Spring Semesters Batches of US Students by its School for International Training (SIT Study Abroad) in New Delhi-INDIA nafeestarana[at]gmail.com,drnafeesahmad[at]sau.ac.in

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International Law

Psychology of Political Power : Does Power Corrupt or is Magnetic to the Most Corruptible?

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Last week I attended a conference on ‘Political Power, Morality and Corruption’. A Socratic dialogue with fellow scholars led me back to one question that epistemologically haunts political theory and philosophy to date – Does power corrupt or is magnetic to the most corruptible? The cornerstone that this question posits on is antithetical to the idea of power duality as malefic or benefic. Instead, this problem statement is trying to explore and exact the fundamentals of political power. While the former part of the question is striving to deconstruct the soma of power itself, the latter construct of the question is focussing on the agency of an individual with political power.

Now, if you have read Frank Herbert’s Chapterhouse Dune, Missionaria Protectiva US science fiction novelist (1920 – 1986), he writes, “All governments suffer a recurring problem: Power attracts pathological personalities. It is not that power corrupts but that it is magnetic to the corruptible. Such people have a tendency to become drunk on violence, a condition to which they are quickly addicted”. Rather than saying absolute power corrupts absolutely, Herbert reveals a common metaphysical denominator: corruptibility,  that fundamentally connects all those with political power. However, his sematic interpretation gives birth to more questions than answers. Suppose we take Herbert’s argument in consideration and assume that the most corruptible are indeed attracted to power. In that case, the global political infrastructure as we know today, is then built on the building block of corruption by its very virtue. For example, the 4th edition of the Global Corruption Index (GCI 2021) covered 196 countries and territories, and provided a comprehensive overview of the state of corruption around the world based on 43 variables. This extensive data revealed that only 52 countries have a low corruption index, with Finland and Norway leading the way. On the other hand, the rest 144 countries are suffering from profane corruption. Using Herbert’s interpretation of power and corruption, should we conclude that political corruption which is about privatization of average citizen and the use of public sphere to promote private interests, is the foundational political infrastructure of these 144 countries? And if this assertion is true, does it mean that every government representative of these 144 countries are fundamentally corrupt? Herbert’s simplistic interpretation of the problem statement creates a moral conundrum of either this or that, rather than exploring the connection between the two variables – power and corruption.

Power does not corrupt. It amplifies and reveals a leader’s predispositioned traits.

For decades, social psychologists were convinced that power corrupts. One of the key demonstrations of this assertion was the classic Stanford Prison Simulation Experiment (Zimbardo, 1971), where volunteers were randomly assigned to play the role of prisoners or prison guards. As the day passed by, it was observed that the students who were given the role of prison guards became sadistic and exercised their power to subjugate prisoners by taking away their clothes and forcing them to sleep on concrete floors. This subduing was absolute barbaric and callous in nature. The results were shocking. However, the Stanford Prison Experiment failed to explore one crucial variable –  the behavioural and cognitive pattern of students who willingly participated and were recruited to be a part of ‘study of prison life’. So, Thomas Carnahan and Sam McFarland (2007) conducted an experiment on Revisiting the Stanford Prison Experiment: Could Participant Self-Selection Have Led to the Cruelty?. They wanted to studywhat kind of people participate and are drawn to the likes of Stanford Prison Experiment. The research revealed that “ volunteers for the prison study scored significantly higher on measures of the abuse-related dispositions of aggressiveness, authoritarianism, Machiavellianism, narcissism, and social dominance and lower on empathy and altruism, two qualities inversely related to aggressive abuse”.

What Carnahan and McFarland’s experiment revealed was that power doesn’t corrupt, but it is a phenomenon that is monopolized by the agency of an individual. Power amplifies and exposes cognitive and behavioral predispositions that already exists within you. It merely reveals your innate tendencies, but it does not corrupt. Let’s take another example of a democratic statesman who wants to introduce a new healthcare bill for his people, is unexpectedly confronted with an ethical conundrum – he can either strengthen his political power and wealth by collaborating with pharmaceutical giants and increase the prices of the medicines in concern (demand-supply chain) , or he can metamorphosize his proposed bill into reality and benefit his subjects. What will he do? Since he already has procured political power and is deliberating on actualizing his healthcare bill to empower people, power here has not corrupted him. In fact, the argument that power corrupts collapses because if power indeed corrupts, this democratic statesman would not have proposed a healthcare bill for the welfare of his people to begin with. However, if he decides to enact the bill in favor of pharmaceutical moguls to increase his wealth and political status quo, it would be due to his predispositioned behavioral and cognitive schema for corruptibility. How he responds to this ethical conundrum will mirror his political psyche. It has nothing to do with power being essentially corruptible. Power only amplifies and exposes a leader’s predispositioned traits. 

Friedrich Hayek makes a similar point in his chapter ‘Why the worst get on top’ in The Road to Serfdom (1943), where he highlights that individuals who rise to the top in the government are those who want to wield power and those who are most ruthless in using power. He writes, “Neither the government administration of a concentration camp nor the Ministry of Propaganda is suitable places for the exercise of humanitarian feelings. Yet, positions like these create a totalitarian state. So, when a distinguished American economist concludes that the probability of people in power disliking the possession and exercise of power is low, is similar to falsely assuming that the probability of an extremely tender-hearted person to desire a position of an whipping-master in a slave plantation is high.”

Recently, psychologists have re-investigated this phenomenon and theorised that rather than being a corrupting influence, power amplifies leaders’ innate tendencies. For example, extensive research on ‘Leader corruption depends on power and testosterone’ by Bendahan, Zehnder, Pralong and Antonaki used incentivized experimental games to manipulate leaders in power. Here, leaders had complete freedom to decide monthly pay-outs for themselves and their followers. Now, leaders could have made a prosocial decision to benefit the public good. However, they chose to abuse their power by invoking antisocial decisions, which reduced the total pay-outs of their followers but boosted the leaders’ earnings with a high margin. The researchers write, “In Study 1 (N = 478), we found that both amount of followers and discretionary choices independently predicted leader corruption. Study 2 (N = 240) examined how power and individual differences (e.g., personality, hormones) affected leader corruption over time; power interacted with endogenous testosterone in predicting corruption, which was highest when the leader power and baseline testosterone were both high. Honesty predicted initial level of leader’s antisocial decisions; however, honesty did not shield leaders from the corruptive effect of power.” 

Concluding with Caligula – The Mad Roman Emperor!

After years of witnessing the most barbaric purges, treason laws, exiles, execution, and corruption of all time during Tiberius’s rule, Caligula (37 – 41 AD) was seen as a breath of fresh air when he took the throne. After going through despondent years of constant fear, Caligula’s initiation was perceived as a hope for a flourishing Roman republic. At first, Caligula lived up to the expectations of the roman people. He brought back many people exiled by Tiberius and ceremoniously burned the records of the infamous Treason Trails held by Sejanus under the order of Tiberius. This act was celebrated and made Caligula popular and well-liked among the Senate. He then took a step further and eliminated unpopular hefty taxes, initiated constructions of harbors that created massive employment opportunities for Roman citizens, and staged lavish events like chariot races, gladiator shows, and theatre plays to entertain his people. He was indeed a breath of fresh air after Tiberius. 

But, after seven months of his rule, things changed for the worst. Caligula started to use and abuse his political powers so dauntlessly that it pushed Rome into a dark age of political and economic instability. He went on a rampage of committing murder, adultery, and acts of debauchery. His eccentricities became more murderous, including restating the very Treason Trials that he had ended. Dressed in silk robes and covered in jewels, Caligula pretended he was a god. He made it mandatory for his senators to grovel and kiss his feet and seduced their wives at lavish dinner parties. He wanted his statue to be erected in the temple at Jerusalem, which at the point, would have been highly controversial in a region that was already prone to revolt against the Romans. Luckily, Herod Agrippa, who ruled Palestine then, convinced him not to do so. Additionally, since Caligula was spending vast amount of money on his lavish lifestyle, he emptied Rome’s treasury. To reverse this damage, he started blackmailing roman leaders and senates, and confiscated their properties and wealth. 

There is no denying that there was a method to Caligula’s political madness but power didn’t corrupt him. If it did, the first initial seven months of ruling Rome after Tiberius, Roman republic would not have experienced economic, political and culture growth. However, power certainly did amplify and expose his innate characteristics of corruptibility and debauchery. Caligula’s madness of abusing political power and tyrannical reign grew out of control. An assassination plot for structured against him and he was murdered after being stabbed over 30 times by a cabal of Praetorian guards in 41 A.D. This reminds me of what Robert Caro mentioned in his book The Passage of PowerThe Years of Lyndon Johnson(2012), “Power always reveals. When a man is climbing, trying to persuade others to give him power, concealment is necessary. But, as soon as the man obtains more power, camouflage becomes less necessary.” To conclude, it is not that the power corrupts or is magnetic to the most corruptible. The truth is – power only reveals who you truly are.

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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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