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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

Ensuring Sustainable Development and Peace: Who in the UN is Against it?

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March 2021 marks a year since the World Health Organization announced that the spread of the novel coronavirus COVID-19 had turned into a pandemic. Despite the highly negative socioeconomic consequences it had for the international community, the U.S.-led countries of the North did not alter their course to prevent the UN General Assembly from adopting resolutions (14 in total) aimed to ensure sustainable development and stable peace and to counter the use of unilateral financial measures, which remain intact and intended to curtail the international community’s efforts to guarantee the right to development and a decent life. Since resolutions are adopted by majority vote of all the UN member states (193), the efforts of the Global North prove futile, anyway. The article explores the stances of states when voting on the resolutions of the UN General Assembly pertinent to the issues discussed in this piece.

Promoting Sustainable Development and Stable Peace

In the context of global economic inequality, the North–South dichotomy is a conflict of interests between industrially developed and developing nations. The conflict has to do with the expanding gap in socioeconomic and cultural development between the “rich” countries of the North and the “poor” countries of the South. According to the UN, the number of people living in extreme poverty shrank from 36% in 1990 to 10% in 2015. However, owing to the coronavirus pandemic, the pace of the changes is slowing down and the world is running the risk of nullifying the decades-worth of progress in combating poverty.

The gap in capital distribution, income and quality of life brings about socioeconomic and political upheavals worldwide, which is a challenge to security and to the stability of the global economy.

Since the early 21st century, the international community has made serious efforts to counter the North–South dichotomy and eliminate the consequences of global inequality.

For instance, on September 8, 2000, the Millennium Summit adopted a Declaration that included a roadmap up to 2015. The document contained eight goals, 18 objectives, and 48 indicators for measuring the achievement of the so-called Millennium Development Goals (MDGs).

The UN Sustainable Development Summit of September 25–27, 2015 unanimously approved the Sustainable Development Agenda. The document‒called “Transforming our World: The 2030 Sustainable Development Agenda” and unofficially dubbed “Sustainable Development Goals”, or the SDGs‒contains a set of goals (17 in total) for international cooperation in global development. Part of the implementation of the Global Agenda, it went into effect on January 1, 2016.

However, from 2016 onwards, the United States, the European Union and their satellites, including Ukraine, started voting against the adoption of the resolution “Sustainable Development: Implementation of Agenda 21, the Programme for the Further Implementation of Agenda 21 and the outcomes of the World Summit on Sustainable Development and of the United Nations Conference on Sustainable Development”—something previously adopted without voting. In 2019, most opponents, with the exception of the United States and Israel, “abstained.”

The vote on the fundamental resolution “The Right to Development” showed a certain split among the countries of the North. However, the backbone of the “rich” Western European nations and the United States (as well as Ukraine, which sided with them) invariably cast their vote “against” the motion. Voting on such resolutions as “Implementation of the Recommendations Contained in the Report of the Secretary-General on the Causes of Conflict and the Promotion of Durable Peace and Sustainable Development in Africa” and “New Partnership for Africa’s Development: Progress in Implementation and International Support” showed differences in opinions as well.

The European Union member states and Ukraine support the United States in voting against the resolution “Promotion of Peace as a Vital Requirement for the Full Enjoyment of All Human Rights by All,” which, among other things, stresses that the ever-increasing gap between the developed and the developing worlds poses a major threat to global prosperity, peace and security, and stability. A similar situation happened with the resolution “Eradicating Rural Poverty to Implement the 2030 Agenda for Sustainable Development.”

We should also note that the U.S. stance under the Trump Administration changed radically‒and this position was supported by Israel only, as well as by Libya in one instance‒when voting on the following UN General Assembly resolutions:

  1. “The Right to Food” (in 2009–2016, the resolution was adopted without voting; the United States and Israel have voted against it since 2017).
  2. “Global Health and Foreign Policy: Strengthening Health System Resilience through Affordable Health Care for All” (in 2008–2017, the resolution was adopted without voting; in 2018, the United States and Libya voted against it; in 2019, it was adopted without voting; in 2020, the United States alone voted against it).
  3. “International Financial System and Development” (in 2000–2016, the resolution was adopted without voting; in 2017, the United States and Israel voted against it; in 2018–2019, the United States alone voted against it).
  4. “International Trade and Development” (in 2011–2016, the resolution was adopted without voting; in 2017 and 2020, the United States and Israel voted against it; in 2018 and 2019, the United States alone voted against it).
  5. “Commodities” (in 2004–2015, the resolution was adopted without voting every two years; in 2017, the United States and Israel voted against it; in 2019, the United States alone voted against it).

Use of Unilateral Financial and Economic Measures

Global economic inequality along the provisional “North–South” confrontation axis was particularly evident during the pandemic, when the effect of sanctions acquired the scale of an emergency (Venezuela, Iran).

In order to help the international community overcome the consequences of the coronavirus, UN Secretary General Antonio Guterres addressed the heads of the G20 member states at the very outset of the pandemic (March 25, 2020), calling for them to lift their sanctions so that states would have access to food, essential goods and medical aid in combating COVID-19. Michelle Bachelet, UN High Commissioner for Human Rights, called for easing sanctions against states combating COVID-19. Restrictive measures can hinder the effective response to the pandemic, which will inevitably have a negative impact on other states. The United Nations and the international community have placed overcoming the pandemic and its consequences at the top of their agenda.

At an extraordinary G20 Summit on March 26, 2020, Russia’s President Vladimir Putin proposed introducing green corridors free from trade wars and sanctions and open primarily for essential goods, food, medicines, personal protection equipment needed precisely to combat the pandemic. On the same day, the eight states currently under restrictive measures, specifically Russia, Venezuela, Iran, China, North Korea, Cuba, Nicaragua and Syria, sent a letter to Antonio Guterres on the negative impact the sanctions were having on the human rights agenda and economic growth.

On April 3, 2020, Alena Douhan, UN Special Rapporteur on the Negative Impact of the Unilateral Coercive Measures on the Enjoyment of Human Rights, called for lifting or at least suspending sanctions amid the COVID-19 pandemic. In her opinion, unilateral measures adopted in circumvention of the UN Security Council affect economic, social and civil rights and, most importantly, the right to development. The pandemic has obviously resulted in unemployment, bankruptcy of some economic sectors and falling incomes, thus exacerbating the negative effect of unilateral economic restrictions. The sanctions policy hinders the recovery of markets and the global economy, which has a knock-on effect on the development of emerging markets.

Despite calls from the United Nations, the countries of the North do not deem it necessary to change their sanctions policies. In December 2020, the United States, the European Union and the few states that joined their ranks, including Ukraine, voted against the Human Rights and Unilateral Coercive Measures resolution that calls, among other things, for ceasing the use of essential goods as a tool of political coercion, especially in the context of global healthcare problems, such as the COVID-19 pandemic.

At the same time, the United States and the European Union typically vote differently on the resolution “Unilateral Economic Measures as a Means of Political and Economic Coercion against Developing Countries” since 2001, the EU countries have abstained from voting, while the United States and Israel have voted against it. However, when voting on the resolution “Toward a New International Economic Order” (a supplement to the existing resolution on the “International Financial System and Development”), where the General Assembly calls for an international order based on the principles of “sovereign equality, interdependence, common interest, cooperation, and solidarity among all States” and also recommends that states “refrain from promulgating and applying any unilateral economic, financial or trade measures,” the EU and their satellite states, including Ukraine, support the United States and vote against such motions.

Russia and the Sustainable Development Goals

Russia supports the adoption of the above-listed resolutions of the UN General Assembly and actively promotes development goals, both by incorporating them in its national projects and strategic development planning and by giving other countries access to financial resources. Over the last two years, Russia has provided humanitarian aid to 21 states in Latin America, Southeast Asia and Africa, over USD 25 million worth in total. Interest in providing international aid has only increased amid the pandemic: Russia provided anti-coronavirus aid in the form of medical equipment and products, personal protection equipment and medical ventilators to more than 20 states.

On March 17, 2020, the Government of the Russian Federation approved the Priority Action Plan for Ensuring Sustainable Economic Development in Conditions Exacerbated by the Spread of COVID-19, which is aimed at achieving the SDGs nationally. The anti-crisis plan provides for the following measures: provision of essential goods; support for economic sectors in the risk zone; support for small- and medium-sized enterprises; and general system-wide measures (establishing a guarantee fund for restructuring loans to companies affected by the worsening situation as a result of the spread of COVID‑19; compiling a list of backbone enterprises in the Russian economy; and operational monitoring of the financial and economic state of backbone organizations).

Currently, the SDGs in Russia are integrated into national projects and other strategic and program documents, such as the Food Security Doctrine of the Russian Federation, as well as state programmes, such as “Development of Education,” “Accessible Environment,” “Promoting Employment” and “Comprehensive Development of Rural Territories.” In 2020, twelve national projects as well as the Comprehensive Plan for Modernization and Expansion of the Trunk Infrastructure cover 107 out of 169 objectives set forth by the UN.

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China and India must stop rivalry and begin to reform the Third World

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The First World has been anticipating with a great enthusiasm to see geopolitical tensions between China and India. On the one hand, the United States has been wittingly trying to control the Indian Ocean. On the other, the diplomatic and trade ties between China and India are lopsided. Boycotting Chinese goods by India certainly enlarged the tensions not only between these Asian powers but also among the Third World states and most importantly in South Asia region. The People’s Republic of China, which is being considered as superpower of Asia must stop diplomatic rivalry with its neighbor and decades long diplomatic partner, India. The Republic of India, which is also being considered as one of the largest economies outside the west, has to stop its rivalry with China to safeguard non-western economic interests. As world observing, there has been frontier dispute going on between these two non-western largest political and economic powers for a last couple of years.

According to customary International law, as far as any territorial dispute is concerned, every state has the right to protect its national borders without any external legal oppression. In this regard, as far as China is concerned, it has its primary responsibility to protect its national borders. On the other, India has also unequivocal responsibility to protect its national borders under the Law of Nations. In these adverse circumstances, the leader of the Third World ( to some extent, I refer this word as leader of the third world, since China has a tremendous capability to lead the developing world ) and as well as the fastest growing economy of the Third World must unite and strive for three essential goals. I would clearly argue about them here. Before that, let me get into the economic background of these two nations.

Since the end of the Second World War, these two former British colonies have strived tremendously for becoming economically self-dependent nations. But in those attempts, China has accelerated its industrialization in the period of Den Xiaoping and turned as a manufacturing hub of the world, while India has only become as largest importer of goods, however it got reached to the peak stage of International economic order that could slightly influence International legal order. The main contention of this piece lies in examining why India and China should stand together as a common force. Let me now turn towards the main argument of this writing. The leader of the Third World China has to strive to become success in three essential goals with the collaboration of India.  The first essential goal is to mobilize non-western nations to fight for decolonization of west made International law. The second essential goal is to fight for new global economic order, which can make Third World rich. And the third one that what China must do is to promote industrial growth in Third World nations.

Let’s debate one by one. In the past history, the rest of the world outside the west had been arguably ruled by the European powers. There were plenty of battles, as we all know taking place for safeguarding their sovereignty. It must be admitted that the International rules, whatever were substantially made by the colonial powers, were framed to suppress non-western people. To prove it, the Third World International law scholarship has accepted that International law is a product of European civilization, which is in this 21st century being used as a legal instrument by the United States to expand west’s global dominance. Prof Antony Anghie, the vital voice of the Third World Approaches to International law, clearly mentions in his great writing “Imperialism, Sovereignty and the Making of International law” that “International law is an absolute construct of Western colonial powers with imperial ambitions”. This interpretation of Prof Anghie, should deeply be understood by each and every student of International law with legal intellectual concern. We should never like to hate the west and blame the First World and its leader the United States. But, Third Worldism has to rethink its history unavoidably to generate new form of International, political and economic policies for its self growth. Most important thing among all the concerns is that China which I refer as leader of the Third World, should work to increase the political and legal ability of the Third World countries at International platform that is the Security Council. Third World countries absolutely do not have participation in the Security Council, which is considered as a top body of the world where the final decisions on global conflicts are made. So in this context, China and India must initiate the political and legal campaign of the Third World to reform the Security Council. This should become an agenda of the Asian African countries too.

We are turning towards the second essential goal that is the new global economic order. The whole word is currently living in the age of Globalization. To say in simple terms, the Globalization is nothing but the global capitalism, which affects the daily life of an ordinary citizen of the world. However, the Globalization has its roots in International Economic Order adopted in 1974 by the United Nations General Assembly. As the rest of the world outside the West knows that, the developing countries were intended for economic decolonization and as well as to decrease the dependency on industrially developed nations. The process of economic decolonization of the Third World is linked with economic policies of the Bretton Woods Institutions, since most of the power lies with the World Bank and International Monetary Fund. The New International Economic Order which is intended to decolonize developing economies, being violated by the developed nations and International financial institutions. The founding principles of the G-77 countries have not been reached through United Nations General Assembly adopted International Economic Order. In above mentioned facts and factors, the Globalization has been playing a primary role in influencing and shaping Global South economy. The western richness is absolutely on the rise due to existence of International trade and economic norms that are maintained by the system of Globalization. In this context, the leader of the Third World China and the fastest growing economy of the Third World India, must initiate a campaign for a new Global Economic Order which would eradicate poverty and make the Third World rich.

Now debating regarding third essential goal that is to develop industrial growth in Third World countries. The modern economic history begins with the Industrial Revolution which had taken place in Europe. It had a destructive effect on Third World domestic productions. But in the 21st century it is fully occupied by the People’s Republic of China. One of the major developmental obstacles facing Third World countries is the industrial growth. The vast gap that exists between the affluent First World countries and the impoverished Third World countries is indirectly dictating these poor countries to obey the west dominated global economic, political and legal order In the TWAIL scholarship, the ideas propounded by scholars like RP Anand, Prof Bupendra Chimni have affirmed that modern International law was an Eurocentric creation determined to uphold the economic hegemony of the West. In the backdrop of such a historical anomaly, both India and China should alter their parochial stances in order to counter the Western hegemony in the International economic sphere. In this context, these two countries China and India have to review their foreign policy to cooperate with other Asian and African countries in terms of developing domestic industrial growth. There is a need for Third World countries to depend on industrially developed states since these countries have no all sorts of domestic industries. But of course I would agree that the interdependence of countries with each other is inevitable in this era of Globalization. In spite of that, No country should be forced to make her foreign policy favor to a particular state which is against the freedom of a state under International law. In these circumstances, the Third World countries should be encouraged profoundly towards industrial growth. Most importantly, the leader of the Third World China has to prefer it as a principal agenda in its foreign policy. China’s rivalry with India splits up India from this sort of International economic, political and legal conceptions.   

Concluding Remarks

As I have mentioned above, economic needs of a country decide the way of a country where to go in International arena. To say in simple terms, economics dictates politics while politics dictates law. So, to achieve new International legal order, should develop economic capability of the Third World. As I have said before, the leader of the Third World China and one of the largest economies of the world India both must put an end to frontier disputes and initiate a campaign for three essential goals that I have already mentioned. The first and primary essential goal is to mobilize non-western nations to fight for decolonization of west made International law. China and India both alone would never achieve this great achievement. All non-western nations are required to be mobilized to work for decolonization through reformation of the Security Council. The second primary agenda is to fight for new Global Economic Order, which protects the natural rights of states like sovereignty over all their natural resources. The final and concluding agenda is to encourage industrial growth in Third World states, which would decrease the dependency of states with each other.

Finally I reached to the end and I would conclude by stating a great remark that International law is never separated from International politics while International politics is never separated from the global economic policies which are framed and monitored by the Bretton Woods Institutions.

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Chagos: An Achievement in Self-Determination with a Treacherous Path to Decolonization

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The overwhelming global support for the United Nation’s 2019 Chagos International Court of Justice (I.C.J.)Opinion and General Assembly Resolution was a remarkable success for modern-day decolonization. However, real-world implementation of the decisions will be incredibly complicated, perhaps even to the extent that full decolonization of Chagos becomes impracticable and/or illegal. Resolving the U.K./Mauritius legal sovereignty dispute over the Chagos archipelago was only the tip of the iceberg.

Implementation of decolonization will require at least five critical steps. First, the Chagossians still require legal and practical support to resettle the islands. Second, Mauritius needs to come to an agreement with the U.S. regarding the future of the Diego Garcia military base. Third, that agreement and Mauritian state responsibility for the base will need to address ongoing violations of numerous anti-nuclear, anti-arms, and human rights treaties. Fourth, Mauritius will need to ensure a military presence adequate to maintain a deterrent effect against nearby aggressors, which may require keeping some weapons on-site, and in which case Mauritius will need to seek amendments to or withdrawals from some of its current treaties.  Finally, and perhaps most critically, Mauritius needs to address global climate change impacts, because if it does not, in a matter of decades the islands will be uninhabitable or even fully submerged, leaving the previous four points irrelevant.

Background

The Chagos islands are an African archipelago that cover 1,950 square kilometers, with Diego Garcia as its largest island.  Colonial occupation of Chagos by the U.K. started in 1814 when it was administered as a dependency of Mauritius (another British colony).

Sixty years ago, the United Nations passed the Declaration on Decolonization, committing to the swift end of colonization and declaring that all people have the right to self-determination.  In 1946, Mauritius was listed as a non-self-governing territory under Article 73(e) of the Charter of the United Nations.

The General Assembly(G.A.) passed Resolution2066 (XX) in 1965 calling for the U.K. to immediately and fully decolonize Mauritius. In September 1965, the U.K. and Mauritian governments entered into an agreement allowing for the detachment of Chagos before the remainder of Mauritius gained independence. Mauritius was forced into the agreement despite its protests, with U.K. Prime Minister Harold Wilson threatening the Mauritian Prime Minister: “[I]f you don’t agree to what I am proposing [about Chagos] then forget about [your] independence.”Following the coerced agreement, the U.K. created the British Indian Ocean Territory (B.I.O.T.),which included Chagos and preserved it as a British colony.

In 1966, the U.S. and the U.K. concluded an international agreement allowing the U.S.to use Diego Garcia as a military base. Per the U.S.’ request, the agreement provided for the “resettling [of] any inhabitants,” who were the Chagossians, thousands of descendants of people forcibly transported from Mozambique and Madagascar in the early 1800s and enslaved to work on the islands’ coconut plantations. The U.K. forcibly removedthe population, though the displaced Chagossians continue to protest, and the U.K. later apologized for the “shameful and wrong[ful] forcible removal.”

In 1967, the G.A. passed Resolution 2357 (XXII) expressing “[deep] concern[s]” about “disruption of the territorial integrity” and the “creation … of military bases” on several of the non-self-governing territories, including Mauritius (and its dependency, Chagos). The resolution reiterated that these actions are incompatible with the purposes and principles of decolonization.

In June 2017,theG.A.requested an Advisory Opinion from the I.C.J. regarding the sovereignty of Chagos. The request asked two questions.  First, was the decolonization of Mauritius completed when it gained independence in 1968, after the excision of the Chagos archipelago? And second, if not, what legal consequences flow from the U.K.’s continued administration of the archipelago?

The I.C.J. judges relied almost exclusively on customary international law in their opinion and their opinion was the first time the Court recognized the rights to self-determination and territorial integrity under customary international law.  The I.C.J. found that state practice and opinio juris requirements were met in 1960, and thus the new customary international law crystallized that year making the dismemberment of Chagos from Mauritius a violation of international law. The court reiterated the same concerns noted in the G.A.’s 1967 resolution.

Then, in May2019, the G.A. adopted Resolution 73/295 which incorporated the Chagos Advisory Opinion and took steps to effectuate it. Only six states voted against it. The resolution requests that the U.N. and other international organizations support the decolonization of Mauritius and prohibit aiding any claim of sovereignty by the U.K. over the B.I.O.T.

Next, Mauritius took a separate maritime dispute about overlapping economic zones to the International Tribunal for the Law of the Sea (ITLOS). Mauritius’ neighbor, the Maldives, refused to negotiate with Mauritius about the dispute, citing an “ongoing” sovereignty dispute with the U.K. even after the U.N. opinion and resolution.

In January 2021, ITLOS, under the authority of the United Nations Convention on the Law of the Sea (UNCLOS), issued a preliminary decision on the economic zone dispute, that the case could proceed because the I.C.J. Opinion had “legal effect and clear implications for the legal status of the Chagos Archipelago,” and was “authoritative.” The tribunal found Opinions do have legal effect in situations like that of the Chagos sovereignty dispute.

Next, Mauritius is lobbying the Indian Ocean Tuna Commission (I.O.T.C.).  Following the Chagos Opinion, Mauritius requested to expel the U.K. from the I.O.T.C., as membership is only for states with coastlines along the Indian Ocean Region (I.O.R.). The ITLOS decision strengthened the Mauritian case with the I.O.T.C. because tribunal was established under the same convention as the commission, and the U.K. is also a member state to that convention. One would think the I.O.T.C would approve Mauritius’ request, however because diplomatic relations with a global superpower are at stake, it is challenging to predict how the Commission will proceed.

Obstacles to Effective Implementation

The U.K. Needs to Accept the Legal Decisions.

The U.K. and U.S. responses were standard for any imperial powers: they rejected the nearly unanimous U.N. resolution, committed to maintain the status quo of exploitation and imperialism, made threats against those who questioned their authority, and boasted their superior military power as the determining factor in territorial possession. The U.K. historically said it will hand Chagos over to Mauritius when it is “no longer needed for defense purposes, ”but it has become clear the U.K. does not see that situation occurring anytime soon.

Regardless, the global community nearly unanimously agreed that the U.K. is well overdue to decolonize Chagos. This is now reflected in binding international law. However, the U.K.’s stubbornness is merely one of several problems that Mauritius faces in the decolonization of Chagos.

Chagossians Resettlement and Reparations.

Once the U.K. finally concedes, the real-world implementation of decolonization will be extremely complicated. First, there is the question of the fate of the Chagossians. The Chagossians have expressed concerns that recent developments will not actually allow for resettlement. The Chagos Opinion and Resolution said nothing of specific resettlement plans. The Chagossians who went to the I.C.J. to view the proceedings were even denied entry to the Court. Further, Mauritius’ claim to the Chagos archipelago was based on its own interests, not the Chagossians. Mauritius’ legal achievement increased the size of the state dramatically, including new ownership of the largest undamaged coral reef in the world as well as a sea-floor rich in minerals. The Chagossian people do seem to be an afterthought in these conversations, with the primary interest in the U.K./Mauritius dispute being the land and economic zone.

The Fate of Diego Garcia and its Nuclear Weapons.

In 2020, Mauritius offered the U.S. a 99-year lease of Diego Garcia with resettled Chagossians kept at least 100 miles away from the base. However, the U.S. declined. In 2016, the 50-year period covered by the U.K. and U.S. in the 1966 Agreement came to an end but was extended for a period of an additional twenty years until 2036.

If the circumstances of the proposed Mauritian/U.S. lease sound oddly familiar, it should, as the U.S. has leased the 45 square mile Guantánamo Bay military base since 1898, with Cuba retaining ultimate sovereignty. Cubans are not allowed on the base, and the Castro government declared the U.S. presence an “illegal occupation” of its territory. The U.S.’ experience with Guantánamo Bay has been very problematic and may dissuade the U.S. from attempting to replicate the situation in Africa, especially considering the billions of dollars the U.S. has already invested in Diego Garcia.

Following the U.N. decisions, Mauritius is now in the position to decide whether to allow the continued use of Diego Garcia as a military base, and if so, to charge the U.S. for use. Hosting the base would allow Mauritius to increase its military strength, limit its dependence on India, and avoid the complexity of trying to evict the U.S. – all of which likely factored into Mauritius’ decision to allow the U.S. to remain.

Even if the U.S. agrees to sign a new lease with Mauritius, Mauritius will be faced with additional legal complexities regarding illegal arms and violations of human rights. The U.S. stores weapons in their ships anchored in the huge 125 square kilometer lagoon, including: anti-personnel landmines, cluster bombs, nuclear-tipped ballistic missiles, and a large quantity of nuclear materials, vehicles, and weapons. The U.S. and U.K. claimed that storing the weapons on U.S. ships gives the weapons “state immunity,” a unilateral interpretation contested by the International Committee for the Red Cross. This leaves Diego Garcia a “prime arms control loophole,” with its legitimacy only supported by the muscle of the superpowers who currently occupy it, not the law.

Continuing to lease Diego Garcia to the U.S. under current conditions would violate Mauritius’ obligations under the African Nuclear-Weapon-Free Zone (“Pelindaba”) Treaty. Under the treaty’s terms, Mauritius cannot allow the stationing of any nuclear weapons in its territory. It would also conflict with the General Assembly’s 1971Resolution2832 (XXVI), stating that the I.O.R. should be a “zone of peace” with no military bases or weapons.

Further, Mauritius may face human rights charges if the U.S. continues to use Diego Garcia asa “black site” for interrogations, detentions, and torture. The B.I.O.T. is referred to as a “human rights black hole” as the U.K. government refused to extend numerous human rights agreements to the territory. Human rights investigators and journalists have been barred from visiting the island despite the C.I.A.’s denial of torture allegations.

Security Risks in the Indian Ocean Region

During U.N. debate, U.K. fiercely argued only it can ensure security in the I.O.R. Mauritius’ attorney on Chagos summarized the U.K. argument in saying, “much of the General Assembly listened [to the U.K.’s arguments] in rapt embarrassment, unwilling to buy arguments of a kind you might find in a 1930s textbook on colonialism and diplomatic practice.”However, it is not that simple. While the U.K. might not be the only power able to ensure the security of the I.O.R., security risks to the area do need to be addressed and monitored. Freedom of navigation in the I.O.R. is at risk with any de-stabilization of the area. Other states with Indian Ocean coasts are supportive of the continuing presence of the U.S. base, desiring to keep Chinese naval power at bay. Despite the U.S.’ presence on Diego Garcia conjuring up images of a nuclearized Rambo sequel, it does apparently serve important values in the current political landscape.

The U.S. said a primary objective for Diego Garcia is to maintain the power balance in the I.O.R., enforced by the presence of naval units which “preserve necessary deterrence.”Indeed, it’s been often said, “whoever controls the Indian Ocean controls Asia. The ocean is the key to the seven seas.”The I.O.R. also faces numerous ongoing maritime security threats, including piracy, armed robbery, human smuggling, drug smuggling, illegal fishing, and terrorism.

China also has nuclear weapons, as one of the five states allowed to maintain them under the Non-Proliferation Treaty. However, the threats from China are even more complex, with their “String of Pearls” militarization of the I.O.R., concerning use of nuclear submarines and drones in the I.O.R., and aggressive actions in the nearby China Seas.

This leaves Mauritius in a difficult position. If Mauritius tries to expel the U.S. completely from Diego Garcia, it could wreak havoc on the stability and security of the I.O.R., impacting nearby countries’ maritime rights. However, if Mauritius allows the U.S. to continue administering the military base, Mauritius will need to make some tough decisions regarding the U.S.’ nuclear weapons and materials stored in the harbor. One option is to persuade the U.S. to remove the nukes voluntarily. A second option is to lobby the African states to amend the Pelindaba treaty.  The final option is that Mauritius can withdraw from the Pelindaba treaty. If Mauritius does persuade the U.S. to remove all nuclear materials from the Indian Ocean, the majority of the assumed deterrence power of the base is gone.  That new gap may allow for China, India, and other power-hungry states to expand their footholds and encroach further into the I.O.R.  Mauritius would need to prepare for this as a possibility. 

The removal of cluster-bombs and anti-personnel landmines from Diego Garcia would not create as significant of an impact to security in the region, however it would still require Mauritius to persuade the U.S. to do so. We all know that telling the U.S. to do something it does not want to do rarely goes well. Further, the same diplomacy obstacle will be faced in ensuring Diego Garcia is not used for future torture and other human rights violations.

Mauritius Needs a Plan to adapt to Global Climate Change.

All of this will be for nothing though, if Mauritius does not create a plan and secure resourcing to protect Chagos from the effects of global climate change. Scientists expect Chagos, along with other low-altitude islands in the Indian Ocean, to experience the most severe sea level rise.

The entirety of Diego Garcia is at risk from the devastating effects of global climate change. In 2007, a U.S. blue ribbon military advisory panel found Diego Garcia at risk of submersion due to low land elevation at only 1.3 meters and rising seas. The U.S. may need to close the base, perhaps in a matter of decades.

Two outer atolls were studied for resettlement in 2002, with 35 islands averaging two meters elevation. Climate change is expected to at least cause an increase in cyclones, flooding, and coastal erosion, coral bleaching, and freshwater salinity on the islands. Scientists found short-term resettlement feasible, though long-term maintenance prohibitively expensive.

Whatever Mauritius decides regarding the other issues, it will also need to incorporate climate change adaptation plans.  Instead, it could also start with a more robust climate change study to assess whether all the above trouble is actually needed or if the islands are destined to soon be underwater and should be treated as such.

Conclusion

Following the overwhelming support of the 2019 U.N. decisions, it appears there is no longer a significant, global pro-colonial force. There is no longer reverence for old world superpowers refusing to acknowledge they are now in a new world. The Chagos decision is hopefully a sign of more decolonization to come.

However, the actual implementation of the decision will be long and arduous. There are many complex decisions to make, which will require continued partnerships and support from the global community. Further, some of the major risks provoke questions as to whether resettlement should actually even be attempted.

Self-determination does not necessarily mean returning to the status quo – it is the power to decide what to do next. The symbolism of that is already evident by Chagos’ impact to the global consciousness and conscience over the last few years.

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